Elliott v Repatriation Commission

6 Section 120A(3) of the Act specifies that, subject to s 120A(4), an hypothesis connecting the injury or disease with the relevant service is reasonable only if there is in force a relevant Statement of Principles ("SoP") or a determination of the Commission that upholds the hypothesis. Section 120A(4) limits the force of this restriction by providing that s 120A(3) does not apply if there is neither: (a) a relevant SoP made under s 196B(2); nor (b) a declaration by the Repatriation Medical Authority that it does not propose to make such an SoP.

7 If there is in force an SoP that upholds the hypothesis identified by the decision-maker then that hypothesis is reasonable. The position, as summarised in Deledio at 97, is that the hypothesis must be consistent with the 'template' found in the SoP. It must: "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 fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail."

8 It is important to note that consistency with an SoP goes only to establishing one element of what is needed for the Commission to determine, in accordance with s 120(1), that an applicant's injury or disease is war-caused. In other words, a reasonable hypothesis is necessary but not sufficient for such a determination. It is also necessary that the facts assumed by the hypothesis be established to the requisite standard laid down in s 120(1). Under that section the factual basis is taken to be established unless either: (a) one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

9 The Act also provides that: · except in making a determination to which s 120(1) or (2) applies, the Commission shall decide the matter to its reasonable satisfaction; s 120(4), · the Commission is not entitled to assume that an injury or disease is war-caused; s 120(5), and · nothing in the Act or its provisions imposes an onus of proving any matter concerning the claim on a claimant or applicant for a pension, the Commonwealth, the Department or any other person; s 120(6).

The Tribunal's decision 10 In this case it was common ground that the applicant's service referred to in [1] above constituted "operational service". The diagnosis of osteoarthrosis in both the applicant's knees was also accepted, but neither the Commission nor the Board accepted a connection between this condition and the applicant's war service. 11 In reviewing the Board's decision the first step for the Tribunal was to determine whether there was an hypothesis connecting the applicant's osteoarthrosis with his war service. The Tribunal considered two possibilities. One was that the osteoarthrosis could be attributed to the extreme cold the applicant experienced driving tanks and camping out during his service in Australia, compounded by being continually wet during the tropical wet season during his service in Papua New Guinea. The other was that the applicant's accepted condition of lumbar spondylosis had affected his joints and caused osteoarthrosis of his knees. The Tribunal rejected the former and accepted the latter noting that, in accordance with Deledio, "no fact finding arose at this stage, nor was the reasonableness of the hypothesis in issue". 12 In considering if the hypothesis raised was reasonable, the Tribunal noted that the relevant SoP at the time of the decisions of the Commission and the Veterans' Review Board was Instrument No. 41 of 1998 ("1998 Instrument"). This instrument was amended by Instrument No. 19 of 1999, however that amendment was not relevant to the applicant's claim. The 1998 Instrument defines osteoarthrosis as, "a heterogenous group of clinical joint disorders, associated with inflammation of the synovium and defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following clinical characteristics: (a) a history of pain; (b) impaired function; (c) joint swelling; and (d) stiffness …" 13 In paragraph 5, the 1998 Instrument lists twenty-three factors, one of which, as a minimum, must exist before it can be said that a reasonable hypothesis has been raised connecting the applicant's osteoarthrosis with his operational service. Not all of the factors listed in the 1998 Instrument could apply to osteoarthrosis of the knees, however the Tribunal mentioned two as possibly relevant to the applicant's claim. They are: "(e) having a malalignment of a joint before the clinical onset of osteoarthrosis in that joint; or … (h) suffering from permanent ligamentous instability of a joint before the clinical onset of osteoarthrosis in that joint;"

Malalignment is defined in clause 8 of the 1998 Instrument as meaning: "the presence of significant displacement out of line resulting from the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length." 14 Before the Tribunal, it was submitted for the applicant that a reasonable hypothesis connecting the applicant's condition with his war service and satisfying condition 5(e) of the 1998 Instrument (see [13] above) was as follows: "The applicant incurred a severe back injury whilst on service. This injury has developed into lumbar spondylosis, a condition accepted by the Repatriation Commission. It is consistent with known scientific facts that the spondylosis could lead to altered weight bearing thereby placing undue pressure on the knees. Altered weight-bearing leads to asymmetrical deterioration of the joints and osteoarthritis." 15 In other words, the applicant was relying on his lumbar spondylosis, which had previously been accepted by the Commission, as a cause of misalignment of the knee joints. In considering this hypothesis the Tribunal correctly observed that for the applicant to be successful in his claim to have his osteoarthrosis accepted as war-caused as a result of his lumbar spondylosis the causal link between these conditions would need to be established. In attempting to demonstrate this causal link, the applicant relied mainly on a report dated 12 May 2000 prepared by Dr P Sambrook, Professor of Rheumatology at the Royal North Shore Hospital in Sydney. Professor Sambrook stated that there was no evidence to suggest that the applicant had a ligamentous instability (see factor 5(h) in [13] above) and made the following suggestion: "A better question might be to ask whether he meets factor 5(e) relating to malalignment of the joint as a consequence of the lumbar spondylosis. The report from Concord in 1983 certainly records the presence of marked lumbar scoliosis, which is a form of malalignment, and it is possible that altered gait as a consequence of his back problems and scoliosis lead [sic] to a degree of malalignment in his knees. One would expect this to be somewhat asymmetrical, in other words more apparent in one knee than the other, but I have not seen his original x-rays to know whether this was indeed the case. No definite limp is recorded on the report from 1983. I would regard the above as a relatively unlikely hypothesis in the absence of radiological support to suggest asymmetry in the degree of change in his knees before surgery or any other clinical notes suggesting he walked with an altered gait." 16 In a later letter, dated 1 February 2001, Professor Sambrook referred to a report of Dr Davison dated 22 September 1986 as follows: " the report of Dr Davison … notes that the degree of genu varum was more marked on the right as was the restriction of movement so that although osteoarthritis was present in both knees, her [sic] joint replacement was indicated on the right side because it was more advanced there. In other words, this indicates some asymmetry which … makes the hypothesis of malalignment related to altered gait much more likely."

17 In addition to the reports of Professor Sambrook and Dr Davison, the Tribunal considered other medical evidence including the reports of Dr Whitty (28 June 1983) and Dr Smith (24 October 1986). Dr Whitty noted the presence of "bilateral genu varus with clinically quite marked osteoarthritic changes in both knees." Dr Smith stated that: · the bilateral genu varum is a "congenital deformity which causes abnormal weight distribution through the knees & hence would be a major predisposing factor". · lumbar spondylosis "is not a factor in [osteoarthrosis] of the knees. There is no mechanism whereby it could cause the condition"; · in his opinion, "the veteran's condition is due to age, constitutional factors, a congenital anomaly & obesity. Service is excluded as having any role in aetiology." 18 The Tribunal also considered submissions made on behalf of the applicant and the respondent and stated that: " to satisfy the template in the SoP [the applicant] would have to have suffered from malalignment of the knee joints prior to the clinical onset of osteoarthrosis in those joints. In this regard, I preferred the submissions of the Respondent that:

"(a) there is no evidence that the Applicant's gait was effected (sic) as a result of his lumbar spondylosis, and certainly not prior to the clinical onset of osteoarthrosis of the knees; (b) there is no evidence that the Applicant's osteoarthrosis generally was causally related to, directly or indirectly, the Applicant's lumbar spondylosis; (c) that the Applicant suffered from constitutional genu varum, which is relevant if the Tribunal accepts that there was altered gait; …" … I have also preferred the submission of the Respondent that even with the report of Dr Davison, Professor Sambrook's opinion was still in the realm of "possibility" and not reasonable having regard to the whole of the material." 19 The Tribunal then found that the applicant's condition did not fit the template in the 1998 Instrument and held that the material did not raise a reasonable hypothesis connecting his condition with his operational service. Applying s 120(1) of the Act the Tribunal then stated that it was convinced, beyond reasonable doubt, that the applicant's condition was not war-caused.

Appeal from the decision of the Tribunal 20 One question of law raised on the appeal by the applicant is whether the Tribunal erred: "in not including its findings on material questions of fact or refer to the evidence or other material on which the finding was made when it made the finding that it was convinced beyond reasonable doubt that the Applicant's osteoarthritis of the knees could not be found to be war-caused within the meaning of the Act."

The applicant made no submissions on this point so it may be that this issue is not pressed, however, I propose to deal with it very briefly. The Tribunal explained in great detail why it decided that the relevant hypothesis did not meet the requirements of the 1998 Instrument. Once the Tribunal had made that decision then, as explained in [7] above, the hypothesis is deemed not to be reasonable and the application must fail. As Deledio confirms, there is no place for fact finding at this stage of the analysis. The consequence for the application follows as a matter of law by the operation of the provisions of the Act discussed earlier (see [5] above).

21 The main ground of appeal asserted by the applicant was that the Tribunal had erred in its application of s 120 and s 120A of the Act by misapplying: (a) the test of whether a reasonable hypothesis had been raised on the material before it; and (b) the test of whether the hypothesis was disproved beyond reasonable doubt within the meaning of s 120(1) of the Act. In relation to (b) the analysis in [20] is also applicable. Subject to the Tribunal making a reviewable error, its decision that no reasonable hypothesis had been raised on the material before it led, as a matter of law, to an adverse conclusion under s 120(1). As the respondent stated in its written submissions, "the result was dictated by the structure of the legislation and … in those circumstances, no explanation is required."

A reasonable hypothesis 22 The applicant claimed that the hypothesis was consistent with factor 5(e) of the 1998 Instrument. It was alleged that the Tribunal had erred by indulging in fact finding at the 'reasonable hypothesis' stage contrary to the dictates of Deledio. The written submissions for the applicant stated: "It is submitted that since a malalignment had been hypothesised, if it was disputed as a "fact" then it was required to be disproved beyond reasonable doubt at the s 120(1) stage. It is submitted that the Tribunal improperly formed the view that the hypothesis was "untenable" by recourse to other countervailing material and/or by otherwise weighing up the material in support of the hypothesis and making findings of fact as to that material and thus committed an error of law. Further, the Tribunal specifically erred in its assessment of Professor Sambrook's evidence." 23 The Tribunal's treatment of Professor Sambrook's evidence is critical as the source of the hypothesis put forward by the applicant; see [15] - [16] above. It is clear that Professor Sambrook regarded altered gait or other asymmetry in the deterioration in the knee joints as an essential element in any hypothesis linking the applicant's osteoarthrosis of the knees with his lumbar spondylosis. It is not at all clear however, that the Professor's comments can be regarded as amounting to an hypothesis. Counsel for the respondent, Ms Henderson, referred to these comments as the Professor hypothesising within an hypothesis, as stating a mere possibility. She relied on the decision in Repatriation Commission v Bey (1997) 79 FCR 364, as authority for the proposition that a mere possibility does not amount to a reasonable hypothesis. The applicant submits that Professor Sambrook's reference to Dr Davison's report in his letter of 1 February 2001 is sufficient to show that the material before the Tribunal raised the essential issue of altered gait or other asymmetry in the deterioration in the knee joints. 24 The point is that Professor Sambrook's initial report postulated that the applicant's lumbar spondylosis might have led to malalignment of the knees. For this to be a reasonable hypothesis however, the material would need to point to some asymmetry, whether by way of evidence of an altered gait or radiological evidence of differential deterioration in the knees. In his letter of 1 February 2001, Professor Sambrook refers to finding such evidence in Dr Davison's report. But although Dr Davison's report refers to the condition of the right knee being more severe than that of the left, it attributes this, not to the accepted condition of lumbar spondlyosis, but to the degree of genu varum being more marked on the right side. Although the material raises the possibility of asymmetry it relates that asymmetry not to the accepted condition of lumbar spondylosis injury but to the congenital condition of genu varum. Professor Sambrook himself had rejected genus varum as a cause of the applicant's knee condition saying that "it should be considered secondary to the arthritis not causative." 25 I do not accept that this analysis of the material involved the Tribunal in illicit fact finding. In attempting to determine if the material before the Commission raises an hypothesis connecting the veteran's condition with the particular service, and if any such hypothesis is reasonable, the Tribunal was required to consider and analyse that material. This exercise is not concerned with the truth of the assertions in the material and should not be confused with an exercise in fact finding. The task is similar to scrutinising a pleading to determine if the elements of the alleged cause of action have been pleaded. A statement of claim may be struck out as failing to disclose a cause of action without any consideration of whether the facts pleaded can be substantiated. A hypothesis can be dismissed as not reasonable if the material before the Commission does not raise the essential elements of the hypothesis. 26 In this case the elements of the "cause of action", that is essential elements of the hypothesis, could not be made out because, in the Tribunal's opinion, the material did not give rise to an hypothesis connecting the applicant's lumbar spondlyosis with the condition of his knees. The only material before the Tribunal that allegedly raised a link between the two conditions was Professor Sambrook's report and subsequent letter. The Tribunal did not accept this interpretation of the material but regarded the reference to such a link as purely speculative and, for reasons already described, not consistent with the relevant SoP. To the extent that malalignment of the knee joints was raised in the Professor's report it was connected not with the applicant's service but with a congenital condition that was independent of his operational service. The Tribunal was entitled to form this opinion on the material before it. 27 For these reasons the application must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Solicitor for the Applicant: Legal Aid Commission of NSW

Solicitor for the Respondent: Australian Government Solicitor