The Tribunal's Decision
23 The Tribunal found that Mr Gibson had served in the Royal Australian Air Force from 29 January 1991 to 28 November 1995 and had rendered "defence service", within the meaning of the Veterans' Entitlement Act, during that period. It reviewed the evidence comprehensively. Salient features of its findings follow.
24 The fact of Mr Gibson's condition was disclosed and verified by examination upon his enlistment. The examining medical officer recorded that he had exostoses over the upper medial left tibia with no function impairment. He put him in Class 1 medical fitness for service. In July 1991 a review of his fitness was undertaken by a Medical Board of the Royal Australian Air Force because of concerns that he was medically unfit for full duties of air defence guards. A trainee air defence guard was required to do a substantial amount of physical work. Mr Gibson had reported suffering pain after undertaking fifteen kilometre runs as part of his training. The Board had noted that he was a keen sportsman, able to complete all his physical training without problems. He and other trainees had run four to five kilometres four times a week in full webbing with rifles and he had not been troubled by his exostoses at all until required to do long runs with full combat gear. The Medical Board had concluded:
"AC Gibson is keen to remain in the RAAF. He is particularly interested in remuster to RAAFPOL. The board feels that he would cope with the exercise and physical demands of the RAAFPOL mustering without problems. The board strongly recommends medical remuster."
However in December 1991 Mr Gibson was posted to Wagga RAAF base and remustered as a clerk.
25 In April 1992 it was reported to the Chief Medical Officer at the Wagga base that following a five kilometre run he had developed pain in the lateral aspect of his left ankle. As a local orthopaedic surgeon observed, the pain had resolved following his cessation of activity. Nevertheless it was a requirement that he run on a regular basis for fitness assessment. The orthopaedic specialist recommended that Mr Gibson undertake regular stretching exercise to stretch and strengthen his lateral ligament which he thought would alleviate his pain to a degree that he could undertake his training without difficulty.
26 Mr Gibson was reviewed by Dr McMahon in May 1993 when he was again examined by the orthopaedic surgeon Mr Van Der Rijt. Following that examination exostoses were excised from Mr Gibson's left femur and from his left and right chest walls.
27 In March 1994 Mr Van Der Rijt reported that Mr Gibson was troubled by osteochondroma in the medial aspect of his right femur. This was causing difficulty if he rode horses or if he knocked the area. He also had tightness in his calf which had been present for several months. In May 1994 the femoral and tibial exostoses were excised and the orthopaedic surgeon Mr Van Der Rijt expected Mr Gibson to regain "relatively normal function" over the following three to four weeks. However upon review he was found to be suffering from acute severe pain in the medial aspect of his tibia and paraesthesia in the antero lateral aspect of his knee and shin. A further review in August 1994 indicated that his symptoms had resolved apart from the "annoying presence of altered sensation over the lateral aspect of his shin and anterior calf". In July 1995 however, he was referred again to Mr Van Der Rijt by Dr McMahon whose referral note indicated that he was suffering constant left knee aches with cold weather. Dr McMahon said in his note that he thought Mr Gibson might be becoming medically unfit to serve. A Diagnostic Radiologist reported to Dr McMahon in July 1995 early osteoarthritic changes were present in the right hip joint space. There was gross abnormality of the right neck and intertrochanteric region of the femur. Mr Van Der Rijt reported back to Dr McMahon in August 1995 that Mr Gibson was concerned by symptoms persisting in his left knee and by occasional symptoms in the right knee. He also had symptoms arising in his right hip and occasionally a trace of symptoms in the left hip. Certain activities tended to increase his pain. Mr Van Der Rijt then reported that the presence of multiple lesions and in particular a large mass in the femoral neck made Mr Gibson "basically unfit to continue with hard physical training or work that involves a high level of fitness and training".
28 On 29 August 1995 Mr Van Der Rijt followed up with a report on a CT scan which he said confirmed "…that the lesion is basically non resectable and its presence really does make him unfit to continue in the Military". (AB 496) This was a reference to the right femoral neck osteochondroma.
29 On 5 September 1995 the Director-General, Air Force Health Services, recommended that Mr Gibson be regarded as medically unfit for further service.
30 On Mr Gibson's discharge a medical officer made some comments on his Discharge Health Statement form, including noting that Mr Gibson felt that the acceleration in the deterioration of his condition (knees and hip) was caused by Air Defence Guard training with excessive physical demands that this entailed. Dr. Knight observed that it was possibly true that complications of the condition were caused and/or accelerated by the demands of Mr Gibson's service.
31 The Tribunal referred to Dr Espinosa's 1996 reports and specifically his opinion that the intense physical activity engaged in by Mr Gibson in the course of his duties had worsened his previous condition.
32 In Professor Wood's report of August 1997 he had said, inter alia, that the problems associated with "diaphysial aclasia" included mechanical problems which could be exacerbated by physical activity. He said:
"It is feasible that the physical exercise program in 1991 exacerbated mechanical symptoms associated with proximal femoral diaphysial aclasia. However, symptoms at that time were also experienced around the knee and it may be more appropriate for his medical practitioners in the armed forces to comment on the degree of associated hip discomfort in relation to exercise at that time."
Another report from Mr R. McWilliam, an orthopaedic surgeon in September 1997 posed that the heavy Air Defence Guard training could not have accelerated the deterioration of Mr Gibson's condition:
"…as these osteochondromata occur not in the joint but adjacent to the joint surface and the effect on the tissues is on the muscular tissues rather than on the joint surfaces. The effect of a heavy training regime would therefore only be temporary and would normally only be expected to last perhaps 6 weeks after an episode."
33 The Tribunal referred to the evidence given by Mr Gibson and in particular his evidence of the physically very demanding Airfield Defence Guard Basic Course which he undertook in April 1991. Mr Gibson told the Tribunal that he had started having "big problems" after he had completed the fifteen kilometre battle run during the fifth week of the course. When he was posted to Wagga Wagga his pain and discomfort had more or less stabilised although he was still taking pain killers. He experienced an exacerbation of his symptoms especially in his knees, during very cold winters in Wagga Wagga. In 1994 he had requested a discharge from the Service on medical grounds but that request was denied.
34 After his discharge, Professor Wood had operated on him to remove exostoses from his right femur. However the pain had persisted. In 1998 he went to Spain to consult medical specialists there about his condition. He had consulted a Dr Fenollosa and was told that he had a deformity in the right femur and osteoarthritis in the right hip. While in Spain he had undergone an operation performed by a Dr Villas which helped to alleviate the pain.
35 Other medical evidence was referred to by the Tribunal which had come into existence since the Veterans' Review Board hearing. Dr Owen, a rheumatologist prepared a report dated 25 September 1998. Dr Owen had examined Mr Gibson and viewed his X-rays. He confirmed that he had multiple osteochondromatosis and an abnormal shaped upper femur, femoral neck and hip because the growth centre had been disturbed by the presence of an osteochondroma. There was a malalignment or dysplasia in his hip. Dr Owen had agreed that because Mr Gibson's right hip was abnormal it was extremely likely that it was irritated by the kind of running and extensive weight-bearing activities that he had performed when in the RAAF. There was a high probability, he said, that such increased physical weight-bearing activities would aggravate an abnormal joint and would aggravate Mr Gibson's condition. He also agreed that Mr Gibson had osteoarthritis in the right hip.
36 As to Mr Gibson's knees, Dr Owen said that there was no evidence of osteoarthritis or osteoarthrosis although there were "some abnormal features". He said a CT scan report on Mr Gibson's knees had referred to wear on the lateral surface of the left patella and a narrowing of that joint. But this condition had not been caused or developed with hyper mobility of the joint, rather Mr Gibson "would have been born with it". Dr Owen was of the view that it was surprising Mr Gibson had been accepted into the RAAF having regard to his pre-existing abnormal hip joint. To have accepted him without first having his hips X-rayed carried a high risk.
37 Dr Fenollosa, who is an orthopaedic surgeon and Head of the Department of Orthopaedic Surgery at the Medical School of the University of Valencia in Spain, also gave evidence by telephone. In his opinion Mr Gibson was suffering from multiple congenital cartilaginous exostoses and deformity of the proximal femur secondary to his congenital condition which, after the trigger created by intense physical activity, produced an incipient hip arthrosis. He assessed Mr Gibson's reduction of physical capacity at between 5% and 10%. In a further report of 17 January 1999 to Mr Gibson's then solicitors, Dr Fenollosa said that in his opinion the condition of joint effusion and pain in Mr Gibson's hip was the consequence of the strenuous exercises he went through while training with the RAAF acting on a hip slightly deformed by sessile osteochondroma. In his opinion Mr Gibson, due to the existence of osteochondromata in both hips was unfit for active service. When asked in oral evidence about Mr Gibson's knees, Dr Fenollosa said he had no recollection of them.
38 Additional medical evidence from Dr M. Guijo of Valencia, Spain and Dr C. Villas of the Department of Orthopaedic Surgery at the University of Navarra, Spain, was also received. So too was a medical report from Dr W Anell, Mr Gibson's treating general practitioner. The report by Dr Guijo referred to Mr Gibson attending his clinic complaining of pain in the hip joint. He identified a "deformity of the right proximal femur worsened by intense physical activity". The reports from Dr. Villas related to surgery which Mr Gibson had undergone on 12 May 1998 for the "excision of masses in soft tissue" in his right hip. The general practitioner's medical report referred to Mr Gibson's particular recollection of the onset of pain in his knees after a fifteen kilometre battle run in June 1991 and noted that x-rays confirmed that he had patellofemoral arthrosis. The doctor felt that one could not dismiss beyond reasonable doubt Mr Gibson's view that the vigorous training contributed to the osteoarthritis in his hip. His opinion was that Mr Gibson should "be granted liability (sic) by the DVA for future medical treatment of his hip and knee joints".
39 The Tribunal identified the issues before it as:
1. Whether Mr Gibson's condition of multiple osteochondromatosis was a defence-caused disease in that it was aggravated by his defence service.
2. Whether Mr Gibson had contracted the condition of osteoarthrosis and, if so, whether that condition was a defence-caused disease in that it arose out of, or was attributable to, his defence service.
The Tribunal had regard to the statutory framework and the Statements of Principle concerning multiple osteochondromatosis and osteoarthritis respectively. It found there to be no dispute that each of the relevant conditions namely osteochondromatosis and osteoarthritis (or osteoarthrosis) is a disease as defined in s 5D(1) of the Veterans' Entitlement Act.
40 The Tribunal first turned to the condition of multiple osteochondromatosis as it affected Mr Gibson's knees. It referred to cl 5(a) of the Statement of Principle concerning Multiple Osteochondromatosis and the requirement that before it could be said on the balance of probabilities that multiple osteochondromatosis was connected with the circumstances of a person's defence service, there must have been "inability to obtain appropriate clinical management for multiple osteochondromatosis". Clause 6 of the Statement of Principles also provided that cl 5(a) would apply only to material contribution to, or aggravation of, multiple osteochondromatosis where that condition was suffered or contracted before or during but not arising out of the relevant defence service. The latter proviso was satisfied because Mr Gibson was already suffering from the condition before his defence service commenced.
41 The Tribunal, however, was reasonably satisfied that Mr Gibson had obtained appropriate clinical management for multiple osteochondromatosis in relation to his knees during his defence service. It found that when he first complained of pain in his knees following the fifteen kilometre battle run in May 1991 he was treated by a medical officer who arranged for him to be placed on restricted duties and for X-rays to be taken of his knees. Within the next few weeks he was examined by orthopaedic surgeons and the Medical Board which recommended that he be remustered to less arduous duties on medical grounds. Following that he was posted to the Wagga RAAF Base in December 1991 and remustered as a clerk. Two operations were subsequently performed on him for surgical removal of exostoses from his left femur and from his right femur and tibia. The Tribunal found that, in relation to Mr Gibson's knees, the criterion in cl 5 of the Statement of Principle did not exist or was not satisfied. It therefore could not be said that on the balance of probabilities that condition was contributed to in a material degree by or was aggravated by Mr Gibson's defence service.
42 Independently of the Statement of Principles the Tribunal was not reasonably satisfied that Mr Gibson's multiple osteochondromatosis in relation to his knees was contributed to in any material degree by or was aggravated by his defence service. There was no evidence that there had been any deformity in the knee joints which might have been aggravated by heavy physical exercise. Examination of his right knee in 1995 had shown it to be "unremarkable" and x-rays to his left knee showed there to have been "no abnormality within the left knee joint". Although Dr Owen reported wear on the lateral surface of the left patella and a narrowing of that joint, he did not associate that condition with the defence service. Dr Fenollosa said that chondromas or exostoses did not grow or increase by reason of exercise.
43 Also in relation to Mr Gibson's knees, the Tribunal considered the question of osteoarthritis. Medical evidence, however, did not indicate that he had ever suffered from osteoarthritis in either of his knees. Dr Owen had said there was no evidence of it. So the Tribunal found that he had not previously suffered from and did not, at that time, suffer from osteoarthritis in either of his knees.
44 In relation to the multiple osteochondromatosis in the right hip, the Tribunal found that appropriate clinical management of a patient known to be suffering from that condition would include the carrying out of x-rays or a skeletal survey of his long bones including the upper femur and hip region, especially in a case where he was a member of the defence forces and routinely required to participate in physically demanding training programs. The Tribunal was of the opinion that the omission of Mr Gibson's treating medical practitioner to procure x-rays of his upper femur and hip regions prior to July 1995 when they had known since September 1990 that he was suffering from multiple osteochondromatosis did not conform with the standards of prudent medical practice and did not satisfy the requirements of appropriate clinical management of that condition. For that reason Mr Gibson did not receive clinical management for his condition in his right hip including the gross deformity of his right femoral neck. He did not receive such management because the treating medical officers and at least three orthopaedic surgeons to whom he was referred were unaware that he was suffering from multiple osteochondromatosis in his right hip region. And that was because those regions were not x-rayed during his period of service until July 1995. If they were x-rayed before that time results of such x-rays were not brought to their attention. Accordingly, cl 5 of the Statement of Principles concerning multiple osteochondromatosis was satisfied. It was conceded by the Commission that if the Tribunal found the Statement of Principle had been met the condition would be a Defence Force disease for the purposes of s 70 of the Veterans' Entitlement Act on the basis that it was aggravated by Mr Gibson's defence service within the meaning of the Act. On the basis of the whole of the medical evidence before it therefore the Tribunal found that Mr Gibson's condition of multiple osteochondromatosis in relation to his right hip was aggravated by his defence service and was therefore a defence-caused disease for the purposes of s 70 of the Veterans' Entitlement Act.
45 It was also conceded that if the Tribunal found the condition of multiple osteochondromatosis to be a defence-caused disease a similar finding would be appropriate in relation to the osteoarthritis in Mr Gibson's right hip. The Tribunal found therefore that in relation to Mr Gibson's right hip the Statement of Principle concerning osteoarthritis had been satisfied and that the development of the osteoarthritis was greatly accelerated by reason of his defence-caused disease of multiple osteochondromatosis specifically the aggravation of the gross deformity of his right upper femur and femoral neck by reason of his defence service. Thus, the osteoarthritis arose out of that defence service within the meaning of s 70(5)(a) of the Veterans' Entitlement Act. It was therefore a defence-caused disease for the purposes of s 70 of the Act.
46 In its conclusions the Tribunal said:
"For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the conditions of multiple osteochondromatosis and osteoarthritis of the right hip suffered by the applicant are defence-caused within the meaning of s 70 of the VE Act, with effect from 8 December 1995 (being a date 3 months before the date of lodgment with the DVA of the applicant's Claim for Disability Pension - see ss 20 and 71 of the VE Act). The matter is remitted to the respondent for assessment of disability pension payable to the applicant in respect of the abovementioned conditions."