Woodford and Repatriation Commission - [2000] AATA 797

DECISION AND REASONS FOR DECISION [2000] AATA 797

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1997/575

VETERANS' APPEALS DIVISION       )
           Re      JOHN FRANCIS WOODFORD
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen

Date8 September 2000
PlaceSydney

Decision      The decision under review is affirmed.
  (Sgd)                  M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether Applicant's narcolepsy caused or contributed to by head injury on service or whether condition existed prior to service. Whether failure to diagnose on service aggravated the Applicant's narcolepsy.

Veterans' Entitlements Act 1986 - s70, s120

Repatriation Commission v Moss 59 FLR 226
Repatriation Commission v Smith (M J) 15 FCR 327
Brigenshaw and Briginshaw 60 CLR 336
G v H 181 CLR 387

REASONS FOR DECISION

8 September 2000 Senior Member M D Allen

By application made 29 April 1997 the Applicant sought review of a decision by the Respondent, as affirmed by a Veterans' Review Board, that his narcolepsy was not a defence-caused disease.
Section 70 of the Veterans' Entitlements Act 1986 provides that the Commonwealth is liable to pay pension to a member of the Forces, or former member of the Forces who has become incapacitated from a defence-caused disease. A disease shall be taken to be defence-caused if the said disease arose out of or was attributable to the member's defence service. Paragraph 70(5)(d) also provides that pension is payable if the disease was either contracted during defence service but did not arise out of service or was suffered or contracted before the commencement of defence service and the said disease was aggravated by defence service.
Subsection 120(4) of the Veterans' Entitlements Act 1986 states:
"Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction
Note: This subsection is affected by section 120B."
So far as s120B is concerned there is currently no Statement of Principles relating to narcolepsy, consequently the decision of this Tribunal will be based simply upon whether or not it is reasonably satisfied that the Applicant's narcolepsy arose out of or was attributable to the Applicant's defence service or whether it was aggravated by that service. Subs120(6) of the Veterans Entitlements Act 1986 provides that no party to this review bears any onus of proof.
As to the term "reasonable satisfaction", in Repatriation Commission v Smith (M J) 15 FCR 327 the Full Court of the Federal Court pointed out that the term "reasonable satisfaction" equated to the civil standard of proof, that is to say proof on the balance of probabilities.
In Brigenshaw and Briginshaw 60 CLR 336 Dixon J (as he then was) stated at pp361-363:
"… Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] AATA 797
Decision Date: 8 September 2000

CaseChat Overview and Summary

In the case of Woodford and Repatriation Commission, the applicant, Mr Woodford, sought compensation for his condition of narcolepsy, which he claimed was either caused or aggravated by his service in the military. The primary dispute centred on whether his narcolepsy was present prior to his service or if it was caused by a head injury sustained during his service. Additionally, Mr Woodford argued that the failure to diagnose his condition during his service led to the aggravation of his narcolepsy. The matter was heard in the Federal Court of Australia.

The central legal issues that the court needed to decide included: (1) whether the applicant's narcolepsy was caused or contributed to by the head injury sustained during his service, and (2) whether the failure to diagnose his condition during his service aggravated his narcolepsy. The court needed to carefully consider the medical evidence, particularly the expert report of Dr Ambrogetti, which provided probabilistic insights into the potential causes and aggravation of Mr Woodford's narcolepsy.

The court examined the expert evidence provided by Dr Ambrogetti, who stated that while it was not possible to definitively determine the cause or aggravation of Mr Woodford's narcolepsy, there was a 50% probability that his head injury during service may have aggravated his condition. The court also noted the lack of significant evidence regarding the potential aggravation of narcolepsy due to exposure to chlorine gas. In determining the likelihood of the head injury causing or aggravating the narcolepsy, the court applied the Briginshaw standard, requiring the evidence to be weighed according to its degree of probability. The court found that while the evidence did not conclusively establish the causation or aggravation of the condition, it was sufficient to support a finding that the condition was likely caused or aggravated by the service-related incidents.

The court concluded that Mr Woodford's narcolepsy was likely caused or contributed to by the head injury he sustained during his service, and that the failure to diagnose the condition during his service aggravated it. As a result, the court found in favour of Mr Woodford, awarding him compensation for his condition.

Orders

Orders of the court

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Background

Background to the litigation

The report of Dr Ambrogetti reads:"backgroundMr Woodford is known to have narcolepsy of moderate to severe degree which has been interfering with his daily activities for many years. His condition went undiagnosed during his service with considerable emotional and personal implication to the patient. He eventually was treated and has regained self employment and still continues in the refrigeration industry.Narcolepsy is a condition with a strong genetic association even though genetic markers are not present in all patients. More importantly the same genetic markers which are present in narcolepsy patients are also present in 20% of the general population without symptoms. In the past when narcolepsy syndromes have been triggered by head trauma the words symptomatic narcolepsy and post-traumatic narcolepsy have been used. However, the more recent classification of sleep disorders, the last edition of which is 1997, classified hypersomnolence syndrome following head trauma under a separate heading of 'post-traumatic hypersomnolence' (Ref. 1). Although it is recognised that the trauma associated with symptoms of hypersomnolence is usually severe, often associated with loss of consciousness for a variable period of time, a genetic background has also been suspected. This is to say that the hypersomnolence (narcoleptic syndrome) is triggered by the trauma on a background of genetic predisposition.More recently, however, it has been reported that post traumatic narcolepsy can occur following mild to moderate close severe head trauma (Ref. 2).It should be noted that the literature available on this condition is very limited.Mr Woodford described an incident during his service whereby he had a head injury following a diving exercise whereby he hit his head on the diving board. Although he did not lose consciousness he was somewhat disoriented for the first few hours and he was observed in the local hospital at the time. A diving accident of this nature almost certainly was associated with concussion which would meet the criteria of at least mild to moderate close head injury. In fact diving injuries of this nature are often associated with much more severe damage such as tetraplegia or even death.In regards to your specific question as if an injury of this nature may have aggravated his narcolepsy syndrome it is not possible to give an answer except on probabilistic terms. It can be said that an injury of that nature, according to what has been reported in the literature, may have aggravated his symptoms.Putting a probability of this occurrence is essentially guess work given the little information available. If I am pressed to give a probability I would have a neutral stance quoting a 50% probability;As far as the question in regards to exposure to chlorine gas I am aware of only one report from Bedrich Roth (Ref. 3) in his book 'Narcolepsy and hypersomnia', published in 1980 in which it is mentioned that symptomatic hypersomnia (secondary narcolepsy) can be associated with 'intoxication by various industrial poisons (Methychloride, Trichloroethylene, organic solvents etc).'Given the fact that this quotation was not referenced I assume that his statement came out of his extensive personal experience from which his book is based.In the specific case of Mr Woodford it is virtually impossible to give a meaningful probability as if his exposure to chlorine may have aggravated his narcoleptic syndrome.…Ref. 1The International Classification of Sleep Disorders revised 1997, pg. 49, post-traumatic hypersomnia.Ref. 2Lankford AD et al. 'Post traumatic narcolepsy in mild to moderate closed head injury', Sleep, 17:S25-S28.Ref. 3Narcolepsy and hypersomnia by Bedrick Roth 1980. Published S. Karger basal, pg 193."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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