Warhurst and Repatration Commission - [2002] AATA 283

DECISION AND REASONS FOR DECISION [2002] AATA 283

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2002/33

VETERANS APPEALS DIVISION        )
           Re      RONALD WARHURST
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Dr P. Fricker, Member Mr C. Ermert, Member

Date19 April 2002
PlaceMelbourne

Decision      The decision under review is affirmed
  .........Sgd. Mr J. Handley.................
  Senior Member
CATCHWORDS
Veterans' Entitlements - Whether applicant injured in a motor vehicle in 1962 - whether accident occurred - absence of records - examination of record keeping - s.120(1) - Tribunal satisfied beyond reasonable doubt that injury did not arise from service - decision affirmed.

REASONS FOR DECISION

19 April 2002 Mr J. Handley, Senior Member Dr P. Fricker, Member Mr C. Ermert, Member

On 21 November 2001, Mr Justice Merkel of the Federal Court ordered that this matter be remitted for re-hearing to the Tribunal.
The background to the application is briefly summarised as follows-
The applicant applied to the respondent on 26 February 1999. His claim then was with respect to back injury, hypertension, alcohol abuse, stress and anxiety. By reason of the respondent's decision, the applicant then lodged an appeal with the Veterans Review Board who made a decision on 19 August 1999. The applicant then applied for review of that decision to this Tribunal. The appeal was heard over two days namely, 29 May 2001 and 4 June 2001. A decision was made by a Senior Member of the Tribunal on 26 June 2001. The decisions under review were then affirmed.
On appeal to the Federal Court from that decision, the representatives for the parties agreed to have the application remitted for re-hearing with respect only to the condition of lumbar spondylosis. The re-hearing, therefore, was confined to that injury.
It was agreed between the parties that the applicable Statement of Principle was Instrument No. 27 of 1999. The applicant relied on factor 5(h) namely-
"suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis".
The words "trauma to the lumbar spine" is defined at paragraph 8 of the Instrument as-
"trauma to the lumbar spine means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least 7 days following their onset, save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of cortico steroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine".
It was not in dispute that the applicant had been engaged in operational service.
With respect to the association between service and injury, the applicant relied entirely on a motor vehicle accident in Malaya in September 1962. The applicant was then enlisted in the Australian Army and was serving as a member of the Far Eastern Strategic Reserve (FESR).
Evidence Of The Applicant
Mr Warhurst relied on a written statement dated 10 October 2000, which was received into evidence in the first AAT hearing. The Statement refers to all of the conditions which were then being claimed as war-caused, but relevantly that part of the statement which concerned lumbar spondylosis referred to two motor vehicle accidents which occurred in Malaya.
The first accident was said to have occurred in 1961. Mr Warhurst recorded that he was then a passenger in a motor vehicle, which was forced off the road into a monsoon drain, where it then rolled and came to rest on its roof. Mr Warhurst recorded in the statement, that he did not suffer "any significant injury. In particular I do not recall any back pain following this incident".
The other accident in Malaya occurred in September 1962 where Mr Warhurst was again a passenger. The vehicle was being driven by Ray Watts. The statement records that the vehicle in which he was a passenger swerved to avoid another vehicle. Mr Warhurst recorded that the vehicle "ended up in a monsoon drain at the side of the road. The drain was about six to eight feet deep. I was thrown out of the truck in the incident". He also recorded that he was "immediately aware of acute back pain and generalised abrasions and lacerations".
In evidence in these proceedings, Mr Warhurst confirmed that he did suffer a back injury in a motor vehicle accident in September 1962. His vehicle was then travelling at or near Seremban. Mr Warhurst recalled that the vehicle travelled near a rubber processing plant, when a motor vehicle was observed to exit the plant onto the roadway. He said that that vehicle crossed their path and the vehicle driven by Mr Watts swerved to avoid it. Mr Warhurst described the front wheels of his vehicle as having an extended hub, which acted as a step when the engine was being serviced. He said the hub of his vehicle connected with the other motor car and sliced it "like a sardine tin". He said that his vehicle "skewed around into a monsoon drain" and the front left hand wheel only extended over the edge of the drain and the vehicle came to a rest on its front axel. He said the other three wheels of the vehicle remained on the roadway. Mr Warhurst said that he was thrown from the vehicle onto the grassy bank of the drain. He described his lower back pain as being a "severe sort of niggling" pain.
Shortly after the motor vehicle accident - indeed within minutes - the "British red caps" (military police) attended the scene. They assisted the driver of the other motor vehicle and assisted to remove the vehicle, in which the applicant was a passenger, from the edge of the drain. Mr Warhurst said that he and Mr Watts then returned to their camp.
Mr Warhurst lived in the married persons quarters at the camp with his wife and children. His wife was then pregnant. He said that he attended the British regimental aid post (RAP) at Malacca with his wife. He said that he was issued with a light duty certificate and was given some painkillers. He said that he submitted the certificate at the Orderly's room. Thereafter, Mr Warhurst said that he consumed painkillers for a period of two or three weeks, as supplied at the RAP. He recalled bruising across his lower back and persisting pain.
During the time that Mr Warhurst was confined to light duties, he said that most of the other members of his squadron had travelled to Ubon in Thailand. He said that he and Mr Watts remained in a caretaking type role within the unit, where most of the time was spent "playing cards", but other times he maintained stores and painted Australian Kangaroo insignia on motor vehicles. He recalled that he was unable to lift during the period of light duties and was "moving slowly". Any lifting required in the stores involved assistance from other persons.
Mr Warhurst produced a photograph of a large truck, which was used to transport communication batteries. He said that when he was fit and without restriction, he had lifted batteries from the truck and charged and maintained them. Access to the truck was made possible by climbing a ladder. The truck depicted had a tray approximately three feet from road level. He said he was unable to perform this work during the period that he was confined for light duties.
The applicant was voluntarily discharged from the army in 1970 after he completed a tour of Vietnam. He recalled that his back continued then to give him "trouble" after any heavy lifting, in fact the applicant said that he continued to suffer pain in his lower back at the present time.
As a civilian, the applicant initially was an owner-driver of a tip truck for approximately 10 years. He later obtained employment as a by-laws officer with the Mornington Shire Council. He said that his back did not "worry" him unless he undertook heavy lifting. Mr Warhurst said that he notified his general practitioner, Dr Wise, of his back pain who eventually arranged x-rays and referral to Mr Westh for treatment.
Mr Warhurst was aware prior to the commencement of the hearing that the respondent raised an issue as to whether the 1962 motor vehicle accident in Malaya ever occurred. Mr Warhurst relied on a letter received into evidence in the previous proceedings from the Defence Personnel Executive of the army medal section of the Directorate of Honours and Awards in Melbourne dated 16 February 2000. The letter was written to Mr Warhurst following an application he made as to his medal entitlement. He specifically relied on a paragraph with respect to his service in Malaya which indicated that his eligibility for an award of the Australian Service Medal with Clasp Thai - Malay was unable to be confirmed because, "records of the activities of your unit, 208 Signal Squadron, are all but non existent".
Mr Warhurst submitted, having regard to this notification, that the records of his service including accident, injury and treatment could not be located.
As to the failure to call Mr Watts, the driver of the vehicle in the 1962 accident to give evidence in support of his application, Mr Warhurst said that Mr Watts has been his friend for 40 years, that he is a nervous person, and that he did not wish to place his friendship (with Mr Watts) in jeopardy. Mr Warhurst also instructed his solicitors not to issue a summons to compel Mr Watt's attendance at the hearing.
Mr Watts did complete a written statement dated 19 October 2000, which was received into evidence in the previous proceedings. A letter written by him dated 22 November 1999 was also received into evidence in the previous proceedings. Despite the objection of Mr Hanks to have these documents produced into evidence in these proceedings, we allowed the documents to be tendered. The Tribunal would consider any submission that may be made in closing, as to whether any weight should be attached to the documents in the absence of Mr Watts.
The letter of 22 November 1999 records that Mr Watts was a driver with the 208 Signal Squadron in Malaya and that he and Mr Warhurst were involved in a motor vehicle accident when returning from Seremban. The letter records that the accident "resulted in our one ton truck tipping into a monsoon drain". Mr Watts also states that "Ron (Mr Warhurst) fell out of the vehicle landing on an embankment" and they were both shaken and bruised but "we went to the RAP and filled in an accident report". The statement of 19 October 2000 records the accident having occurred in September 1962, where Mr Watts was the driver of a vehicle in which Mr Warhurst was a passenger and was thrown following the collision. He records that the truck was pulled out of the ditch, but he could not recall how that occurred. He said that Mr Warhurst was complaining of pain, but he could not recall the areas of his body that were injured.
In cross-examination, Mr Warhurst confirmed that the monsoon drain was about eight feet in depth and the site of the motor vehicle accident was located near the entrance to a rubber plantation. He said that it was not raining at the time of the accident nor within the hour before the accident. Mr Warhurst said that there was heavy rain daily in Malaya. He said that there were puddles on the side of the roadway. He estimated that there were about six or eight inches of water in the bottom of the drain, but it was not in flood as Mr Tilbrook reported. He also denied that the bonnet of his tuck was resting on the bottom of the drain, as Mr Tilbrook also reported.
With respect to his evidence that he suffered cuts and abrasions associated with glass splinters from the windscreen, Mr Warhurst said that the windscreen had been fractured, but because of its lamination it did not shatter. When pressed on this issue, he acknowledged that at the Veterans Review Board he said that he had been lacerated by "flying glass". In his evidence in these proceedings he said that he may have been lacerated by glass from the windscreen or from debris on the side of the road.
With respect to the removal of his vehicle from the edge of the drain, Mr Warhurst said that British "Red Caps" had towed his vehicle from the edge of the drain, he presumed by a rope. He said the British were driving a vehicle similar to the vehicle that they were driving. He said he had not mentioned this previously because he had never been asked. He said that the "Red Caps" had asked him what had happened but he had no idea whether any written record of the accident was made by them. He said that he was not questioned whether he was injured, but he did recall that the British were anxious to remove his vehicle from the roadway and to "pacify" the driver of the other vehicle. Mr Warhurst said that he did not complete an accident report when he returned to base. He said that was the responsibility of the driver. He said that he did complete a written statement, which was eventually provided to the Sergeant Major in his squad. He expected that his written statement would then be attached to an accident report, which Mr Watts would have completed as the driver of the vehicle. Mr Warhurst said that he made a written statement approximately one month after the accident. He said that he was not pressed to complete a statement presumably as it was regarded as being 'minor'.
Mr Hanks then took Mr Warhurst to a number of documents which were submitted as having significance and which suggested that either the accident did not occur or any subsequent diagnosis of lumbar spondylosis was not associated with the motor vehicle accident of 1962 namely-

Mr Warhurst acknowledged that in the prior AAT proceedings he said in evidence that the back pain eased approximately one month after the motor vehicle accident and he returned to normal service but that any heavy lifting by work in the unit caused an ongoing dull ache in his back, which he said was "aggravated by activities". He also said that this situation prevailed throughout the balance of his period of army service. It followed - and Mr Warhurst agreed - that he had persisting back pain until his discharge in 1970. Despite this, Mr Warhurst acknowledged that in annual medical examinations of 13 November 1962, 26 August 1963 and 8 April 1964 he was passed fit for "employment standard" of class 1. When asked why he would not then refer to his "nagging pain", Mr Warhurst said it "wouldn't make much difference".
Mr Warhurst was then taken to a discharge medical questionnaire completed on 16 November 1970, where he acknowledged that he had suffered "swollen or painful joints" and had suffered "knee, back or joint injury". The Doctor's entry against the complaint of "swollen or painful joints" was "struck left index finger in South Vietnam in August 1970". The Doctor's entry against the complaint of "knee, back or joint injury" referred to the explanation given with respect to the left index finger.
Mr Warhurst said that he told the medical officer of his index finger injury, the back injury by a motor car accident in 1962 and that he had had persisting pain for 8 years. He acknowledged, however, that this complaint is not recorded on the discharge medical form. It was also noted that the doctor had recorded that Mr Warhust had suffered fractured ribs in a motor vehicle accident of 1964. He said that that was however an error the Doctor made because those injuries occurred in a motor vehicle accident in 1961 in Melbourne.
Mr Warhurst was also taken to a report another medical officer completed on 16 November 1970 which is found at page 9 of the supplementary medical records. In that form, at question 42, the applicant's spine is recorded as being "normal". Mr Warhurst acknowledged that the doctor had not made any record of any back injury, yet there are entries with respect to the applicant's upper dentures, left index finger injury, the absence of dandruff and dermatitis but the presence of tinea.
Mr Warhurst was taken to some documents received from a Workcover insurer with respect to a completed Workcover claim made against the Shire of Mornington in November 1993. The claim then made was for "work related stress" giving rise to headaches, vomiting , chest pains and hypertension. Mr Warhurst was examined by Doctor Gibney and Doctor Klepfisz at the request of the insurer. Both Doctors are consultant psychiatrists. In a report of 5 January 1994 Doctor Gibney recorded (page 5) that when the applicant was asked whether his "health had been affected by his army service", he replied "I didn't have any wounds or anything". Later, Doctor Gibney records that the applicant "believes that he was physically fit until last year". Doctor Klepfisz reported (at page 2) that the applicant told him that he was engaged in service between 1961 and 1963 in Malaya, "but was not injured". Mr Warhurst said in evidence that "details of the 1962 motor car accident were not in mind when I had my workers compensation claim". On reflection, he said that he was "pretty sure" that he mentioned to the doctors at discharge in 1970 that he had "hurt" his back.
In a claim for acceptance of a number of injuries as war-caused on 9 February 1996, Mr Warhurst referred to injuries as "lower back and limbs". He recorded that those injuries occurred in service by carrying heavy loads as a Sig in Malaysia and SVN. The injuries are described and the claim form records that Mr Warhurst "first became aware of the disability" in 1980. In a separate part of the form, he was asked to "provide detail of any accidents, injuries or illnesses suffered during service, which relate to this claim". Mr Warhurst has recorded "damaged teeth whilst running for shelter during rocket attack in SVN. Also had to see psychiatrist whilst in SVN. Several falls whilst carrying radio comms during exercises in Malaysia". It was noted that Mr Warhurst made no reference to any complaint of back pain or back injury, by reason of a motor vehicle accident in September 1962.
The 1996 application was accompanied by a report Mr Warhurst completed with respect to his "heavy physical work" with respect to a condition of osteoarthrosis, which his doctors diagnosed. In the report, Mr Warhurst recorded that between 1957 and 1970 his occupation was "transport supervisor" (in the army) and the duties and activities performed were described as "whilst in transport one was expected to load heavy equipment by hand and with very little assistance". Mr Warhurst acknowledged that he had not made any report then of the 1962 motor vehicle accident. He said that he did not pursue the application because his doctor then advised him that his osteoarthrosis was due to "wear and tear". The report also records that between 1970 and 1980 Mr Warhurst was a truck driver and the duties and activities performed were described as "tip truck operator jumping in and out of cabin, stress on lower back and limbs".
The current application before the Tribunal arose out of a claim found at T-7 page 54 of the T-documents. It is dated 23 February 1999. One of the injuries claimed is described as "back problem" and the incident in service alleged to give rise to this injury is described as "truck accident whilst in Malaya". In response to the question, "When did you first become aware of the disability or aggravation of the disability", Mr Warhurst recorded "1962". In evidence, Mr Warhurst said that he made this application in conjunction with his general practitioner Dr Wise. He acknowledged that this form was the first occasion where the 1962 motor car accident was recorded or mentioned as giving rise to the injury of lumbar spondylosis.

In support of the current application, Mr Warhurst completed a report with respect to the condition of lumbar spondylosis and this report is found at page 75 of the T-documents. Mr Warhurst recorded that he was involved in three motor car accidents, one in Australia in 1961, and two in Malaya in August 1961 and September 1962. Mr Warhurst acknowledged in evidence that the sequence in the motor vehicle accidents was incorrect. One of the motor vehicle accidents in Malaya was described as his vehicle having "rolled over and I was thrown out". The other was described as "my vehicle left the road and overturned". Mr Warhurst acknowledged in the claim for acceptance of lumbar spondylosis completed by Dr Wise in March 1999 (found at page 83 and 84 of the T-documents) it is recorded that the applicant had suffered "pain in back ever since the accident" (in reference to motor vehicle accident described earlier in the form). In another part of the form, Dr Wise recorded "three episodes of trauma with back pain since these - but largely ignored pain until recent years when pain has gradually worsened". Mr Warhurst acknowledged that Dr Wise did not refer to the 1962 motor car accident only as the cause of the lumbar spondylosis.
Mr Warhurst was then taken to a letter written by him on 25 May 1999 (T-16 page 128-129) where he then made an application for a review pursuant to s.31 of the Veterans Entitlements Act. With respect to the condition of lumbar spondylosis, Mr Warhurst recorded that he was involved in three accidents in the army. With respect to the motor vehicle accident in Melbourne in January 1961, Mr Warhurst recorded that he suffered broken ribs "as a result of being hit by a truck". He then recorded "both a doctor and myself contend that being hit by a truck at speed does not improve the spine". It was submitted to Mr Warhurst that this explanation given by him suggested that the 1961 motor vehicle accident in Melbourne was significant.

Mr Warhurst was then appraised of the evidence to be given by Mr Tilbrook and Colonel Church, who provided reports with respect to their investigations and their experience respectively in Malaya. When asked to comment on part of the report from Mr Tilbrook, that an investigation officer would have been appointed with respect to the motor vehicle accident and to report also upon damaged property, Mr Warhurst said that no one spoke to him about the motor vehicle accident. He assumed that this was because it was regarded as a "minor accident".
When he was acquainted with the potential evidence of Mr Tilbrook, that there would have been records of his treatment within British authorities because he was treated at a British Hospital, Mr Warhurst said he was not "treated" but was given medication only. He said he was not aware of any report being prepared. When told that Mr Tilbrook would give evidence that the practice of reporting injuries and treatment would have resulted in records being forwarded to the Central Army Records Office in Melbourne, Mr Warhurst again said that his accident would not have been regarded as "major" and the incident would not therefore have been recorded. Additionally, he suspected that there would be no records because he was not hospitalised.
Mr Warhurst again said that the accident and his injuries then were minor, that he was not hospitalised, that he was not interviewed and he did not complete any report because he was not the driver. He was adamant that he did make a statement and gave it to his Squadron Sergeant Major. This was in response to being told that Colonel Church provided a report that the documentation in Malaya was "meticulous" because Australians were responsible for the cost of repairs to other vehicles. Also that Mr Tilbrook was unable to find any documentation with respect to the accident.
Mr Warhurst was then asked to comment on the absence of any report with respect to British or Australian Army troops being present at Ubon in September 1962 Mr Warhurst acknowledged that he may have been mistaken, but was adamant that members of his squadron had left base and had attended another place. He said he recalled members of his squadron returning to base sometime after the accident carrying or wearing colourful clothing, which apparently was purchased whilst away from base. Mr Warhurst said that he was "not making it up - 200 men went somewhere".
In re-examination, Mr Warhurst said that at the time of discharge from the army his mental state was poor and he was then suffering stress anxiety and depression. He said that his wife had "taken off" and he was then trying to save his marriage and his family. He said he was anxious to leave the Army as quickly as was possible.
With respect to the 1961 motor vehicle accident in Melbourne, Mr Warhurst said that he had no recollection of any back pain following that accident but recalled fractured ribs only. He said that he referred to all three motor vehicle accidents in his claim form upon Department of Veterans Affairs, because he interpreted the questions within the forms to require him to disclose all accidents.
John Douglass Tilbrook
Mr Tilbrook is a military historian and consultant who provided a number of reports at the request of the respondent, the most recent being on 17 January 2002.
Mr Tilbrook said that this report incorporated parts of earlier reports. He described his brief as the examination of the army records section, the army health records unit in Melbourne and other Australian and British establishments in order to determine whether a motor vehicle accident in September 1962 in Malaya occurred.
In summary, Mr Tilbrook said he could not locate any records with respect to this accident from any authority.
Additionally, he said that enquiries made of the RAAF at Ubon failed to disclose the presence of any members of 28 Signal Squadron in September 1962.
Mr Tilbrook variously described the extent, nature and practice of record keeping by a number of authorities within the Australian and British Army. He also described the practice of reporting, retaining and keeping of records. The records extended to hospital and sickness records, investigation and accident reports and investigations made by others yet he could find nothing, which confirmed the occurrence of an accident in September 1962.
Mr Tilbrook acknowledged that it was not the applicant's responsibility to report the motor vehicle accident, because he was not the driver. The applicant was however obliged under army standing orders to complete a statement which-in part-would have initiated an investigation by another person. He said that that statement if made, was not able to be located. He said the practice with respect to motor vehicle accidents did not distinguish between minor and major accidents or minor and major injuries.
In cross-examination, Mr Tilbrook said he had not spoken with Mr Watts the driver of the vehicle, because he had no instructions to do so. Under the Department of Veterans' Affairs policy, Mr Tilbrook was prohibited from speaking with the veteran, the veteran's witnesses or representatives. Mr Tilbrook normally only relies on written statements and checks it off against official records.
With respect to the letter produced by the applicant from the Defence Personnel Section indicating that the records of his squadron could not be located, Mr Tilbrook said that whilst he had not been aware of the presence of that letter, he said the system of record keeping with respect to medical documentations would be unaffected because those records were located elsewhere. The Australian War Memorial, he said, normally holds operational records for Australian units however that is not the case for the applicant's Squadron. Both administrative and operational records for his Squadron are stored in the United Kingdom, as the FESR was under British command.
Colonel Church
Colonel Church wrote a letter to Mr Tilbrook on 11 March 2002, which was received into evidence. The witness was a member of the 2nd Battalion Royal Australian Regiment between March and August 1963 and a member of the 3rd Battalion Royal Australian Regiment between August 1963 and January 1964 in the FESR in Malaya. Colonel Church said that he had experience of record keeping, particularly with respect to motor accidents and injuries and reporting of injuries and accidents.
In his letter and in evidence, Colonel Church said that the 208 Signal Squadron Orderly Room was "meticulous" in matters of reporting and record keeping. Also, it was "unlikely that they would have failed to complete all the action on any case of injury no matter how slight. In the case of injury an investigating officer would have been appointed and he would have completed an AAFD11 - report of an injury".
With respect to damage to motor vehicles he said that a form known as 'AFG13 - Report of an accident' would have been completed at the initiation of the military police. He said that the record keeping with respect to damage to motor vehicles was "meticulous" because a "financial element was involved which could see the Australian headquarters in Singapore being required to make good some loss if it were found that there was fault involved".
Colonel Church concluded that he was unable to envisage that either of these two basic matters would have been overlooked, especially "as the military police were in attendance at the scene of the accident".
In cross-examination, when he became acquainted with the letter that the applicant produced from defence personnel as to the absence of records, Colonel Church said that the medals unit would have only been responsible for records of service. The absence of any medical records was beyond their responsibility.
William Max Wearne
Mr Wearne is an orthopaedic surgeon who examined the applicant at the request of his solicitors on 17 January 2000. A report of 18 January 2000 was prepared and received into evidence.
Mr Wearne obtained a history of the applicant having suffered injuries in a motor vehicle accident in Malaya in 1962. He concluded that the applicant did have a grade 1 spondylolisthesis at the L5/S1, level due to osteoarthritic changes in the facet joints. He was satisfied that Mr Warhurst suffered lumbar spondylosis, which he described as a degenerative disease.
Mr Wearne concluded "if the occurrence of the accident in September 1962 can be confirmed it is my opinion that a reasonable hypothesis can be developed to attribute Mr Warhurst's lumbar spondylosis at least in part to that incident". He concluded that factor 5(h) of Statement of Principle No. 27 of 1999 would be satisfied.
In cross-examination, Mr Wearne acknowledged that he had no history of the applicant lifting heavy loads in Malaya and South Vietnam, nor of falls when carrying radio equipment. He said he did have a history of loading heavy equipment into army trucks, however he did not connect those episodes with back injury.
When he was notified that factor 5(k) referred to lumbar spondylosis by occupational requirements, Mr Wearne said that the lumbar spondylosis could be attributed to his employment as a civilian truck driver.
With respect to the condition of lumbar spondylosis, Mr Wearne said that it was a degenerative condition, which most persons could suffer by everyday activity.
Roger Westh
Mr Westh is an orthopaedic surgeon who examined the applicant at the request to his solicitors, on 9 February 2001 and provided a report of 9 March 2001, which was received into evidence.
Mr Westh had a history from the applicant of injuries in a 1962 motor vehicle accident with resultant soreness lasting 3-4 weeks. He reported that the applicant's back subsequently improved however he had ongoing discomfort limiting activity. He reported that the applicant's back "never settled down and more recently he has noticed increasing back discomfort due to the development of his lumbar spondylosis". Mr Westh concluded that the applicant's symptoms were due to the progression of lumbar spondylosis and he was satisfied that factor 5(h) of Instrument No. 27 of 1999 was satisfied.
In cross-examination, Mr Westh acknowledged that he had no history of the applicant being engaged in heavy lifting in Malaya nor involved in several falls whilst carrying radio equipment, nor did he have any history of loading heavy equipment manually onto trucks.
When notified of factor 5(k), Mr Westh acknowledged that the applicant "might satisfy this factor". He also acknowledged that if the history that he obtained was inaccurate, the "premise upon which (his) opinion was based disappeared". In summary, therefore, he agreed that there may be an alternative explanation for the presence of lumbar spondylosis.
Conclusion & Reasons For Decision
This application must be determined according to the principles summarised in Repatriation Commission v Deledio (1998) 49 ALD 193. At page 205, the Full Federal Court summarised four stages, which must be followed in order to determine whether an incapacity from injury or disease is related to service.
It is our view that little attention need be given to stages 1, 2 or 3, because we are satisfied that a hypothesis has been raised connecting service with injury. A Statement of Principles does exist and the back injury arising out of the September 1962 motor vehicle accident - if that accident occurred - would be consistent with the template found at factor 5(h).
Mr Hanks submitted - and we agree - that the real focus needs to be upon stage 4 of the Deledio analysis. The Federal Court then said - in the event that an applicant succeeds in satisfying the first three stages -
"4. The Tribunal must then proceed to consider under s.120(1) whether it is satisfied beyond reasonable doubt ….. that the incapacity did not arise from a war-caused injury. If not so satisfied the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing no question of onus of proof or the application of any presumption will be involved."
S.120(1) of the Veterans Entitlements Act provides-
"(1) where a claim under part (ii) for a pension in respect of the incapacity from injury or disease of a Veteran …. relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease ….. unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination".
On the one hand, the applicant asserted that his lumbar spondylosis is related to injuries he sustained in a motor vehicle accident in Malaya in September 1962. This review was the second occasion the applicant had to call Mr Watts - the driver of the vehicle - however on both occasions his evidence was not given. For reasons, which are now unclear to us, Mr Watts was not called to give evidence at the first hearing. We were told by Mr Warhurst that he would not be called in this application because he was an anxious person. Mr Warhurst did not wish to place his friendship with him in jeopardy. Immediately prior to the overnight adjournment of the application, we urged Mr Warhurst to review his attitude to calling Mr Watts and to earnestly endeavour to have him appear to give evidence with respect to the accident. We learnt on the resumption of the hearing that Mr Watts would not be called.
There was also an absence in any of the documents confirming that the accident had occurred. The various claim forms and reports the applicant and others completed - until the 1999 application upon the respondent - fail to refer to the motor car accident. The applicant hasn't made any association between the motor car accident and his lumbar spondylosis.
Annual medical examination in the years following 1962 resulted in the applicant receiving an A1 classification. His discharge medical examination in 1970 contains no reference to the 1962 accident, but does refer to a number of other conditions which on their face would appear to be far less significant.
The claim form of 1996 refers to all three motor vehicle accidents, without any apparent reference to the 1962 accident being significant. Indeed an inference is capable of being drawn that the 1961 accident in Melbourne was of greater significance to the applicant.
The two consultant psychiatrists who examined the applicant at the request of the workers compensation insurer in the 1993 claim against his former employer, have no history of a motor vehicle accident in 1962, despite questions being asked of the applicant. The two consultant orthopaedic surgeons who gave evidence for the applicant in these proceedings did take a history of the 1962 accident, but both acknowledged that the applicant's subsequent employment may have contributed to his lumbar spondylosis.
Mr Tilbrook and Colonel Church gave evidence as to record keeping and they were unable to locate any documents from any source - including British sources - to confirm that an accident did occur in 1962 as the applicant described.
Having regard to their evidence and the nature of the searches they made, we find that it is most improbable that in the event (that a motor vehicle accident did occur in 1962, as the applicant described) that a document of some type can not be located. There is a complete absence of any medical record or report, any report of an investigation, any record or report of statements made either by Mr Warhurst (as he alleged) made or from the driver Mr Watts. There is further absence of any record with respect to the damage sustained to the other motor vehicle and whether any application was made for restitution. Colonel Church regarded the record keeping as being "meticulous", particularly in view that an application might have been made by the driver of the other motor vehicle for compensation. He thought it was unlikely that records would not have been made and therefore retained.
The applicant pointed to a letter (Exhibit B) he received from the Army Personnel Directorate which indicated that records from his squadron could not be located. By inference, it was put that the absence of those records denied the applicant the opportunity to prove that the accident occurred. This may be so, but in the alternative, the inherent assumption put by this submission was that records of his squadron would have made reference to the 1962 accident. We cannot find as a fact, that the accident did occur and was recorded or reported in documents which the Directorate cannot now locate.
We do not discount the possibility that the motor vehicle accident did occur. If it did it would appear - on the evidence at least of the applicant - that it was not regarded as being sufficiently severe to warrant reporting or generation of reports. Yet on the evidence heard, we are satisfied that it is unlikely that a report or record would not have been made (and capable of being located) of the accident itself, or any subsequent investigation or of treatment. Additionally, there is the apparent failure by the applicant to report or notify this accident or of his injuries in any medical examination subsequent to 1962. The applicant also denied to the consultant psychiatrists in his Workcover claim that he had suffered prior injuries. It was not until a claim was made in 1996 that the accident was reported. The 1999 claim only purported to connect the injury to the alleged 1962 accident.
We are satisfied that the applicant does suffer lumbar spondylosis but we are satisfied beyond reasonable doubt, pursuant to s.120(1), that it did not arise from service, specifically a motor car accident in 1962.
It follows in these circumstances that the decision under review must be affirmed.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Dr. P. Fricker, Member &
Mr C. Ermert, Member.
Signed:         ..C. Irons.............................
  Secretary
Date/s of Hearing  19-20 March 2002
Date of Decision  19 April 2002
Counsel for the Applicant          Mr G. Chancellor
Solicitor for the Applicant
Counsel for the Respondent    Mr P. Hanks
Solicitor for the Respondent