Arnott v Repatriation Commission

"In applying subsection (1) … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(b) that the disease was a war‑caused disease …; or

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."

Section 120A modifies the operation of s 120 in relation to claims made after 1 June 1994. Section 120A(3) provides:

"For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) …

3 The Repatriation Medical Authority is established by s 196A. Its functions are set out in s 196B. Section 196B(2) provides in part:

"If the Authority is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(e) which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service."

Section 196B(14)(b) provides that a factor causing or contributing to an injury, disease or death is related to service rendered by a person if "it arose out of, or was attributable to, that service".

4 In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 a Full Court set out the steps that ss 120 and 120A require the Tribunal to take in relation to a claim lodged under Part II of the Act for a pension arising out of operational service rendered by a veteran. The first three steps are as follows:

"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) ….

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will [be] if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service …. If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail."

The acronym SoP stands for Statement of Principles. 5 The Full Court approved (at 95‑96) the following passage from the decision of the primary judge reported at (1997) 47 ALD 261 at 275:

"it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case. The SoPs function is limited to prescribing a medical‑scientific standard with which a hypothesis must be consistent - so that the SoP can 'uphold' the hypothesis.

Therefore when s 196B(2) says a factor 'must … exist' and 'must be related to service', it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). … The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP."

STATEMENT OF PRINCIPLE (SoP) 6 Before the Tribunal the parties were agreed that the applicable SoP was Instrument No 27 of 1999 entitled "Lumbar Spondylosis". Clause 5 listed the factors that must "as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis … with the circumstances of [operational service rendered by veterans]". One of the factors was

"(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis."

The expression "trauma to the lumbar spine" was defined, so far as material, as

(a) "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 seven days following their onset …."

In fact the Tribunal was directed to the wrong SoP. I will deal with the consequences of that later.

TRIBUNAL'S REASONING 7 The Tribunal recorded that there were three incidents relied on by the applicant to bring his case within factor (h). The first was when he tripped over a wire while wearing a heavy pack. The second was when he stepped into a hole while on patrol which caused severe ankle injury. The third was when he was pulled out of a swampy area which caused his back to be wrenched. 8 The Tribunal concluded that the third incident did not satisfy factor (h). That was because the applicant said he had some pain for only two days following the incident. Thus, said the Tribunal, even if the symptoms amounted to "acute symptoms and signs", they did not last for at least seven days as required by factor (h). 9 The Tribunal was of the view that the word "acute" in the definition of "trauma to the lumbar spine" meant

"'sudden', in the sense of giving a temporal connection to a traumatic event and also to mean 'severe' so as to describe the nature of the symptoms."

The Tribunal recorded the circumstances surrounding the ankle injury. The applicant was wearing a heavy pack at the time, with an entrenching tool attached to it. He said he fell, his pack fell with him, and the entrenching tool dug into his lower back. His pack was taken off and he returned to camp. He was treated for his ankle. He said he had lower back pain for at least a week. He said he was impeded in his ability to move around, and recalled that while he was required to sit and rest by reason of his ankle, this caused his back to have increased discomfort. He did not report his back injury at the time. The Tribunal said:

"We accept and find as a fact that Mr Arnott did suffer some back pain as a result of the incident where he sprained his ankle. We accept also that the ankle injury appeared to be considerably more severe than any back discomfort he then had. It was suggested that the ankle injury may have 'masked' the severity of any back injury. There is no evidence of this. The failure to report the back injury may also be explained by Mr Arnott being more concerned with the treatment for his ankle, however there is nothing to indicate that the back pain arising from this incident amounted to 'acute symptoms and signs of pain and tenderness'."

Thus the Tribunal's decision on this incident was that the back pain the applicant suffered ("some back pain") was not acute because it was not severe.

10 At the time of the first incident, when the applicant tripped on a wire, he was carrying a heavy pack with additional ammunition and a machine gun. He said he fell carrying his pack and ammunition, and was told to remain prone in case he had been caught in a Viet Cong booby trap. When the site was cleared, he got to his feet. He said he had pain in his lower back which lasted for "probably eight days". The Tribunal noted that when he was asked whether he recalled any limitation of movement in his spine, the applicant said one of his colleagues relieved him of some of the weight he was carrying, and he was able to continue carrying out his duties. The Tribunal was of the view that this incident did not satisfy the definition of "trauma to the lumbar spine". It said that while the applicant had "some back pain" for up to eight days following the event, there was no evidence that the pain amounted to "acute symptoms and signs of pain and tenderness". Nor did the symptoms he suffered cause "altered mobility or range of movement of the lumbar spine". 11 The Tribunal then applied the "Deledio factors" and concluded that while the material relied on by the applicant did point to a hypothesis connecting his injuries with his service, that hypothesis did not fit the template in the SoP, and accordingly the hypothesis was not reasonable.

GROUNDS OF APPEAL Wrong SoP 12 In Keeley v Repatriation Commission [2000] FCA 222 a Full Court held that the SoP to be applied is that in force at the time of the Commission's determination. The relevant SoP in force at that time was Instrument No 105 of 1995 as amended by Instruments 334 and 358 of 1995. The relevant factor in the applicable SoP was factor (g). It was in the same terms as factor (h) in the SoP to which the Tribunal had been directed by the parties. The definition of "trauma to the lumbar spine" in the applicable SoP was, so far as material, as follows:

"an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs …."

There are four differences between the applicable SoP and that applied by the Tribunal

· the former speaks of "an injury" to the lumbar spine while the latter refers to "a discrete injury" to the lumbar spine

· the former speaks of an injury "caused by the force of an extraneous physical or mechanical agent" while the latter does not deal with the cause of the injury

· the former speaks of altered mobility or range of movement of "the joint" while the latter speaks of altered mobility or range of movement of the "lumbar spine"

· the former requires the symptoms to last for at least a week after the injury occurs while the latter requires them to last for at least seven days after their onset.

13 For the applicant it was submitted that the SoP applied by the Tribunal was more onerous than the applicable SoP in that it required a "discrete" injury. The Tribunal devoted no attention to the word "discrete". Indeed one of the applicant's complaints was that it failed to do so. In the present case nothing turns on the absence of the word "discrete" in the applicable SoP. On the facts of the case there is no relevant difference between "an injury to the lumbar spine" and a "discrete injury to the lumbar spine". Each incident relied on was a separate event, unconnected with any other. The Tribunal's decision would have been the same if it had been directed to the correct SoP. In Harris v Repatriation Commission [2000] FCA 873 Finn J considered a similar problem. In that case the applicable SoP used the words "altered mobility or range of movement of the joint" while that applied by the Tribunal used the words "altered mobility or range of movement of that part of the spine". His Honour said the difference was of no practical consequence to the outcome of the case, so that even though there may technically have been an error of law, the decision would have been the same if the error had not occurred. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384. His Honour said it would be pointless to set aside the Tribunal's decision and remit the matter for rehearing. It would be equally pointless in the present case.

Meaning of acute 14 The applicant submitted that the word "acute" in the expression "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint" did "not necessarily denote 'severe'", and that the Tribunal erred in law in ascribing to it the meaning "sudden and severe". Dr Stephen Hall, a rheumatologist, gave evidence that an acute trauma is one of sudden onset. He said that "acuteness usually in medicine doesn't refer to the severity but rather to the time course over which [the trauma] develops". Mr Shannen, an orthopaedic surgeon, gave evidence that "'acute' is something that occurs suddenly and acute implies severe, but it's particularly something that happens suddenly". Later he said he interpreted the word "acute" in the SoP to mean a sudden incident which was also severe, or at least "significant". Blackiston's Gould Medical Dictionary 3rd ed defines "acute" as

"1. Sharp; severe. 2. Having a rapid onset, a short course, and pronounced symptoms. Compare chronic."

"brief and severe, as disease (opposed to chronic)."

The Shorter Oxford English Dictionary says "acute" in relation to diseases means

In the Howard case Finn J said that "acute" in the definition of "trauma to the lumbar spine" contemplates a "significant injury".

15 In my view the word "acute" in the definition contemplates symptoms etc that are severe or significant. The temporal factor is already dealt with by the words "injury … that causes the development, within 24 hours of the injury being sustained …". Since a precise temporal element has been stipulated, it would be strange if "acute" were to mean "of sudden onset". The Tribunal thought "acute" meant sudden and severe. It decided the issue against the applicant on the ground that the ankle and wire incidents did not give rise to severe symptoms rather than because the symptoms were not of sudden onset. Thus in relation to the ankle incident, the Tribunal said that the applicant suffered some back pain, that the ankle injury was considerably more severe, that there was no evidence that the ankle injury may have masked the severity of any back injury, and that the incident was not reported. In relation to the wire incident the Tribunal accepted that the applicant suffered some back pain. The conclusion that this pain did not amount to "acute" symptoms is clearly a reference to the nature rather than the temporality of the symptoms. These conclusions were plainly open on the evidence, and indeed pointed to by it.

Altered mobility 16 The Tribunal gave a second reason for its conclusion that the wire incident did not give rise to a trauma to the lumbar spine. This was that even if the applicant's symptoms were acute, they did not cause "altered mobility or range of movement of the lumbar spine". This was because, when the applicant was asked whether he recalled any limitation of movement in his spine after the incident, he replied that one of his colleagues relieved him of some of the weight he was carrying, and he was able to carry on his duties. The applicant contended that the Tribunal failed to take into account his evidence that after the incident he was restricted in sitting down and standing up. In view of the Tribunal's conclusion that the applicant's symptoms were not acute, it is not necessary to decide whether its second reason is open to challenge.

Onus 17 The applicant claimed that in various parts of its reasons the Tribunal failed to comply with s 120(6) and imposed, either expressly or by implication, an onus on the applicant. Only one of the five passages pointed to requires comment. The others (pars 18, 19, 22, 23 and 25) do not remotely fall foul of s 120(6). In par 20, speaking of the ankle incident, the Tribunal said:

"It was suggested that the ankle injury may have 'masked' the severity of any back injury. There is no evidence of this."

This was said to have imposed an onus on the applicant to produce evidence that his ankle injury may have masked the severity of the back injury. It does not. It merely records the state of the evidence.

Section 119 18 Section 119(1)(h) requires the Commission to

"take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or difficulty resulting from the fact that an occurrence that happened during the service of a veteran … was not reported to the appropriate authorities."

It was submitted that the Tribunal failed to mention s 119, and in particular sub‑s (1)(h). Indeed, it was said the Tribunal used against the applicant his failure to report his back injury. There was no occasion for the Tribunal to refer to s 119(1)(h). There was no difficulty in ascertaining whether the applicant reported the back injury he suffered as a result of the ankle incident or the wire incident. It was his own evidence that while he "would have reported" the wire incident to the first aid medic in the field, he did not report it when he returned to camp because it was not sufficiently serious. He also said he did not report any back injury arising out of the ankle incident, though he did report the ankle injury. This was confirmed by the official records which mention only the ankle injury.

Section 9 19 The applicant complained that the Tribunal did not mention s 9(1), which lists the cases in which an injury is to be taken to be war‑caused. It was conceded that the failure to mention the section did not amount to an error of law. Rather it was said that the failure "cannot give confidence to the Court that the Tribunal completed its task correctly". Had the Tribunal upheld the hypothesis, it would doubtless have described the causal relationship as within s 9(1)(a) or (b). But since it did not uphold it, that was the end of the claim, and there was no point in going to s 9.

Adequate reasons? 20 It was faintly argued that the Tribunal had failed to provide adequate reasons for its decision. The Tribunal's reasons are comprehensible and clear. No one who read them could be in any doubt as to why the Tribunal decided the case against the applicant. He failed because the hypothesis raised by the material before the Tribunal did not fit the template laid down in the SoP, in particular that part of it constituted by the definition of "trauma to the lumbar spine".

Section 120A 21 It was said that the Tribunal failed to mention s 120A. That is true. However the effect of the section was clearly set out in its summary of the Deledio factors (par 24). See also par 22. Then it was submitted that the Tribunal "first required proof, and then reversed the onus of proof, it required the hypothesis to 'fit' the template of the SoP. It did this even before finding whether the hypothesis was a reasonable one". I have already dealt with the onus point. The balance of the submission has no substance. The Tribunal asked itself whether the hypothesis, as pointed to by the material, fitted the template. That was an essential part of the exercise of determining whether the hypothesis was reasonable. See s 120A(3). The complaint is that the Tribunal did what the Act required it to do.

Section 120(3) 22 Section 120(3) requires the Commission to decide whether the material before it raises a reasonable hypothesis connecting the injury with the applicant's service. The applicant submitted that the Tribunal failed to ask what the hypothesis was. It did not ask whether the hypothesis was pointed to by the material. It simply concluded, contrary to the tenor and requirements of s 120(3) that the definition of "trauma to the lumbar spine" was not satisfied. There is no substance to this ground. The Tribunal identified the hypothesis on which the applicant relied ‑ that the three incidents (tripping over a wire when wearing a heavy pack, stepping into a hole while on patrol, and being pulled out of a swamp causing his back to be wrenched) were connected with his war service. It reviewed the material that bore on these incidents, and concluded that it did not satisfy the SoP factor relied on by the applicant. The applicant's reliance on Repatriation Commission v Nicholson (unreported, 7 February 1995) is misplaced. In that case the Tribunal concluded that the material raised a reasonable hypothesis, but omitted then to ask the question posed by s 120(1), namely whether the factual foundation for that hypothesis was disproved beyond reasonable doubt.

Section 120(1) 23 It was submitted that "if the Tribunal was mindful to find that there was no reasonable hypothesis, as it did, it first had to apply the factors which supported the hypothesis to the scrutiny of s 120(1)". It was said the Tribunal had to be satisfied beyond reasonable doubt that there was no discrete injury, no acute symptoms, pain or tenderness and either altered mobility or range of movement of the lumbar spine. The Tribunal had not carried out this investigation. This was said to be the course required by Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570. The passage relied on does not support the submission. Indeed that case makes clear that when applying s 120 a decision‑maker must answer the question posed by s 120(3) ‑ whether the material before it raises a reasonable hypothesis of connection ‑ before turning to s 120(1): at 571. Since the Tribunal concluded that the hypothesis pointed to by the material before it was not upheld by the SoP, it was obliged by sub‑s (3) to decide that the hypothesis was not reasonable, and to decide the s 120(1) question against the applicant. See Deledio at 97 (point 3 of the summary). The Tribunal proceeded in accordance with Byrnes and Deledio.

Failure to apply Deledio 24 In his written submissions the applicant contended that while an SoP "operates in the discourse of hypothesis, the proof or disproof of the facts that as a minimum must exist is governed by s 120(1)". It was said that "if one of the disputed facts forms part of the hypothesis, it has to be disproved beyond reasonable doubt". The claimant does not have to prove all the facts raised by the hypothesis. Some of the facts can reasonably be assumed. Ignoring their onus flavour, these propositions may be accepted. See Deledio (1997) 47 ALD at 275 and Repatriation Commission v Stares (1996) 66 FCR 594. However it was not explained how they related to the Tribunal's reasons, or where in its reasons the Tribunal erred in applying them to the facts of the case. The matter was not mentioned in oral argument, perhaps because the alleged errors are those dealt with in pars 21 to 23. 25 If the material before the Tribunal raises, in the sense identified in Repatriation Commission v Bey (1997) 79 FCR 364 at 372‑373, a hypothesis that is upheld by the relevant SoP, the next question for the Tribunal is whether it is satisfied beyond reasonable doubt that the factual foundation does not exist or is displaced by some other facts. But that s 120(1) inquiry was never reached in the present case. The material before the decision‑maker did not raise a hypothesis that was upheld by the SoP, and the claim had to fail. Unassisted by any submissions from the applicant as to the manner in which the Tribunal failed to apply Deledio apart from those dealt with in pars 21 to 23), I am unable to discern any error on its part.

CONCLUSION 26 None of the grounds of appeal has been made out, and the application must be dismissed. The applicant must pay the Commission's costs, including the costs reserved on 5 September 2000. The directions hearing on that day was occasioned by the fact that despite an order that the Appeal Books be filed by 8 November 1999, and with only seven days left before the hearing date, they had not been filed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate: Dated: 19 September 2000 Counsel for the Applicant: D De Marchi

Solicitors for the Applicant: De Marchi & Associates

Solicitor for the Respondent: Australian Government Solicitor