Riley v Repatriation Commission

Federal Court of Australia|2008-04-21|Before: Edmonds J

INTRODUCTION 1 This is an appeal from a decision of the Administrative Appeals Tribunal ('the Tribunal') affirming a decision of a delegate of the respondent ('the Commission') that the applicant's chondromalacia patellae ('CP') of both knees was not related to his service in the Australian Army. The Commission's decision was subsequently affirmed by the Veterans' Review Board ('the VRB'). 2 At the commencement of the hearing of the appeal, the Court gave leave to the applicant to file and serve a Supplementary Notice of Appeal (a copy had previously been provided to the Commission) and to rely on the grounds set out therein. These grounds were: '(i) The Tribunal erred in law by: (a) proceeding on the basis that an hypothesis could only be upheld by factor 5(a) of the SoP [Statement of Principles] where there had been a contemporaneous diagnosis of chondromalacia patellae within six months of direct trauma to the affected knee; and (b) failing to consider whether the material before the Tribunal pointed to the existence of features, signs and symptoms of chondromalacia patellae within that time such that a clinician could now make a retrospective diagnosis of chondromalacia patellae. (ii) The Tribunal erred in law by: (a) proceeding on the basis that, in deciding whether an hypothesis was raised by the material that was upheld by factor 5(a) of the SoP, the Tribunal was entitled, and required, to resolve possible conflicts in the evidence and make a finding as to the time when the applicant experienced clinical onset of his chondromalacia patellae; (b) proceeding on the basis that the time when the applicant experienced clinical onset of his chondromalacia patellae was to be determined on the balance of probabilities; (c) failing to consider whether facts appearing in the material before it would (if correct and putting on one side countervailing material) point to clinical onset of the applicant's chondromalacia patellae within the time prescribed by factor 5(a) of the SoP; and (d) failing to approach the question of the time when the applicant experienced clinical onset of his chondromalacia patellae within factor 5(a) of the SoP according to the standard prescribed by s 120(3) of the [Veterans' Entitlements Act 1986 (Cth)]. (iii) The Tribunal erred in law by: (a) proceeding on the basis that, in deciding an hypothesis upheld by factors 5(h) and 6 of the SoP was raised by the material before the Tribunal, only if that material pointed to clinical onset of the applicant's chondromalacia patellae at a particular time; (b) failing to consider, for the purpose of deciding whether an hypothesis upheld by factors 5(h) and 6 of the SoP was raised by the material before the Tribunal, whether the material before the Tribunal pointed to the existence of chondromalacia patellae at that time. (iv) The Tribunal erred in law by: (a) proceeding on the basis that, in deciding whether an hypothesis was raised by the material that was upheld by factors 5(h) and 6 of the SoP, the Tribunal was entitled, and required, to resolve possible conflicts in the evidence and making findings of fact; (b) failing to consider whether facts appearing in the material before it would (if correct and putting on one side countervailing material) point to each of the elements prescribed by factors 5(h) and 6 of the SoP; (c) failing to approach the questions posed by factors 5(h) and 6 of the SoP according to the standard prescribed by s 120(3) of the [Veterans' Entitlements Act 1986 (Cth)].' 3 The appeal focuses on the alleged failure of the Tribunal to approach the question whether the applicant's CP was war-caused in the manner prescribed by subss 120(1) and (3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth) ('the Act'), as explained in the authorities, including Repatriation Commission v Deledio (1998) 83 FCR 82; Repatriation Commission v Cornelius [2002] FCA 750; Meehan v Repatriation Commission (2002) 35 AAR 353; Lees v Repatriation Commission (2002) 125 FCR 331; and Hardman v Repatriation Commission [2005] FCAFC 83. In particular, the applicant contends that the Tribunal erred in law by: (1) Treating clinical onset of CP as requiring the contemporaneous diagnosis of CP - ground 4(i); (2) impermissible fact-finding at the reasonable hypothesis stage that one of the elements required to raise a reasonable hypothesis connecting CP with the applicant's war service (clinical onset of CP within six months of direct trauma to the patella) did not occur within the prescribed time - ground 4(ii); and (3) rejecting the alternative hypothesis (of inability to obtain appropriate clinical management in Vietnam for pre-existing CP) on the basis of impermissible fact-finding that the applicant's CP did not have its clinical onset until after his operational service - grounds 4(iii) and 4(iv).

BACKGROUND 4 The applicant served in the Australian Army from 10 February 1965 until 9 February 1968. He served in Vietnam from 10 June 1966 until 9 May 1967 and his service there constitutes 'operational service' under the Act. 5 On 26 September 2002, the applicant lodged a claim for the following conditions: (1) Post Traumatic Stress Disorder; (2) Bilateral Sensorineural Hearing Loss; (3) Bilateral Tinnitus; (4) CP of both knees; and (5) Solar Keratosis. 6 On 20 May 2003, the delegate of the Commission accepted all of the conditions save for the CP of both knees ('the decision'). 7 On 20 August 2003, the Departmental Review Officer affirmed the decision. 8 On 17 March 2006, the VRB affirmed the decision. 9 On 24 August 2007, the Tribunal determined an appeal from the VRB and affirmed the decision.

LEGISLATIVE FRAMEWORK 10 Subsection 13(1) of the Act renders the Commonwealth liable to pay a pension to a veteran (the applicant is a veteran) who has become incapacitated from a war-caused injury or disease. The circumstances in which a veteran's injury or diseases is taken to be war-caused are set out in subs 9(1) of the Act. They include the circumstances where the injury or disease: '(1) resulted from an occurrence that happened while the veteran was rendering operational service: para (a); or (2) arose out of or was attributable to any eligible war service rendered by the veteran (which includes operational service): para (b).' 11 Where a claim relates to operational service, as the applicant's claim did, the standard of proof to be applied to the question whether an injury or disease is war-caused is prescribed by subss 120(1) and (3) of the Act. Those provisions are applied in the manner explained by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 and may be summarised as follows: (1) The threshold question is posed by subs 120(3) - namely, whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's injury or disease with the circumstances of his service. The question whether the material raises a reasonable hypothesis of that kind does not involve the finding of any facts relating to the veteran's service or relating to any connection between that service and the relevant injury or disease. (2) If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by subs 120(1) - namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran's injury or disease with his service were not present or were displaced by other facts. It is only at this stage that the Tribunal finds any facts. 12 Subsection 120(3) 'is affected by s 120A'; and, according to subs 120A(1), s 120A applies to a claim under Part II of the Act made on or after 1 June 1994 that relates to operational service rendered by a veteran. The applicant's claim was such a claim. 13 Subsection 120A(3) of the Act relevantly provides that a hypothesis connecting a person's injury or disease with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles that upholds the hypothesis. That is, the hypothesis raised by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, the Statement of Principles: see Deledio at 96, endorsing the observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275. 14 The method by which subss 120(1), 120(3) and 120A(3) are applied was explained in Deledio at 97 - 98, to which the Tribunal referred at [33] - [35]. The threshold question remains whether the material before the decision-maker points to an hypothesis of connection between (in the case of a claim in respect of a veteran's injury or disease) the injury or disease and the particular circumstances of the veteran's service. Subsection 120A(3) adds the additional requirement that the hypothesis must be upheld by the SoP made under subs 196B(2) of the Act for the kind of injury suffered or disease contracted by the veteran. 15 In Repatriation Commission v Hill (2002) 69 ALD 581, a Full Court (Black CJ, Drummond and Kenny JJ) said that the function of the Statement of Principles is to prescribe the essential content of what is a reasonable hypothesis, for subs 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of the veteran's particular service. In order to satisfy subss 120(3) and 120A(3) of the Act, an hypothesis relied on by a dependent of a veteran to support a pension claim must be supported by material pointing to each element that the Statement of Principles makes essential for the hypothesis to be reasonable. The Court said at [57] - [58]: 'Whatever the situation may have been in relation to claims before 1 June 1994, the effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out "the factors that must as a minimum exist" and "which of those factors must be related to service". The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, diseases or death with the circumstances of a veteran's particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable. In order for Mr Hill to succeed, the hypothesis raised by the material before the Tribunal had to fit the template set out in the PTSD SoP. …' (Emphasis added) 16 At the time of the decision and of the Tribunal's decision, there was in force a Statement of Principles concerning CP, No. 33 of 2001 ('the SoP'). Clause 4 of the SoP provides that one of the factors set out in cl 5 of the SoP must be related to any relevant service rendered by the person.

THE APPLICANT'S CASE BEFORE THE TRIBUNAL 17 The applicant relied on factors 5(a), (b) and (h) in the SoP (presumably for both knees): '(5)(a) - "suffering direct trauma to the patella of the affected knee within the six months immediately before the clinical onset of chondromalacia patellae;" (5)(b) - "suffering an injury to the affected knee resulting in meniscal damage or permanent ligamentous instability within the six months immediately before the clinical onset of chondromalacia patella …" (5)(h) - "inability to obtain appropriate clinical management for chondromalacia patellae."' In the alternative, the applicant relied on factor 5(e) in relation to his right knee: '(5)(e) - "suffering direct trauma to the patella of the affected knee within the six months immediately before the clinical worsening of chondromalacia patellae …"' 18 The applicant gave evidence of injuries he claims to have sustained during service: (1) He first injured his right knee during training at Ingleburn on 24 May 1965, before commencing his operational service. He spent six days in hospital and underwent physiotherapy for some months. After that incident, his right knee was always sensitive, and that he was always aware of it; (2) when he was in Vietnam, he injured his right knee. He fell about a metre and a half from a truck onto the hard ground. He twisted his knee, and bashed the front of the knee in to the ground. He was able to rest it for two days before operations. He said that his right knee remained sensitive and the symptoms never went away completely; (3) about eight weeks later, a second incident occurred involving the left knee. He 'bashed' the left knee, 'gave it a good twist' and rolled on the ground. He said that he did not seek medical attention because he did not want to miss an operation; (4) shortly before the applicant departed Vietnam, whilst he was walking on the edge of a creek during a patrol, he 'miscued', and his right leg gave way causing him to roll down the hill. During the fall, he bashed both knees against a tree that was lying in the creek, and he ended up on his back with the radio beneath him. He said that he had 'twisted' the knee. 19 The applicant said that, after returning from Vietnam, between May and October - November 1967, his knees 'were really sensitive'; he experienced 'niggles' in his knees, which were 'there all the time', but he took steps to protect the knee as best he could. 20 In about October or November 1967, the applicant completed a parachute course. Both knees were 'really sensitive', but he did not want to fail and be known as 'the bloke who failed the parachute course'. He would go swimming in the cold water to take some of 'the sting' out of the knee, and also 'massaged' the knee. Otherwise, he said, the parachuting did not affect his knees. 21 On his discharge medical examination on 8 February 1968, the applicant did not mention any problems with his knees. The reason for this, he said, was because only serious matters, for which he was hospitalised, were mentioned. 22 The applicant said that he experienced severe knee pain from 1968 - 1969, and received 'initial treatment' from a Wollongong teachers' college doctor in the middle of 1968, approximately 12 months after he left Vietnam, following his right knee giving out during a hockey match. Following this, he said his knee became 'really sensitive'. 23 A member of the same unit, Mr Kearney, confirmed that the applicant fell and hurt his knee on the occasion in [18(4)] above, and was limping as a consequence. Another member of the unit, Mr von Berg, in relation to the same incident gave evidence that he saw the applicant 'having knee problems after a patrol', and 'limping continuously for a long period of time'. 24 Dr Giblin, an orthopaedic surgeon, was called by the applicant. Dr Millons, an orthopaedic surgeon, was called by the Commission. 25 The Tribunal summed up the evidence of each at [45] (first) and [46] (first) of its reasons (since there were two paragraphs [45] and [46] in the Tribunal's reasons) in the following way: '45. Dr Giblin thought Mr Riley's chondromalacia patellae, at least in respect of the right knee, dated back to the 1965 injury, having regard to the need for hospitalisation. The condition may have been present in a "sub-clinical" form, or there was a propensity to the condition. Dr Giblin also said that the condition could be present "microscopically", even if a doctor was unable to observe it. 46. Dr Millons was prepared to accept that Mr Riley may have had a minor degree of chondromalacia patellae from the mid 1970s and considered that he had 'some symptoms suggestive of patellofemoral pain, certainly on the right, from some time in the mid 1970s". He agreed in cross-examination that the first symptoms of chondromalacia patellae would be pain behind the kneecap, and that symptoms in the first six months are relatively minor. Mr Riley's description of "sensitivity at the front and sides of the knee" after the first incident in Vietnam, whilst imprecise, could indicate "irritability" behind the kneecap. This symptom forms part of the clinical diagnosis of chondromalacia patellae. The condition develops over time and range of movement becomes restricted.' On appeal, neither the applicant nor the Commission took issue with these summations.

THE TRIBUNAL'S APPROACH 26 Consistent with the first step in Deledio at 97, the Tribunal considered all the material before it and found at [33] of its reasons that that material '… raises a reasonable hypothesis connecting Mr Riley's CP with his war service within the meaning of subs 120(3) of the Act'. 27 The Tribunal then proceeded to the second Deledio step and found at [34] that there is an SoP in force in respect of the relevant injury, which it identified as Instrument No. 33 of 2001. 28 The Tribunal then turned to the third Deledio step in 'determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP'. The Tribunal at [35] said: 'This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. If the evidence taken as a whole does not fit within the relevant SoP factors, then any hypothesis would not be reasonable: section 120A(3). The claim would therefore not be successful.' 29 The Tribunal then proceeded to 'determine' when the clinical onset (or clinical worsening) of the condition occurred because, in its words '… in respect of all of the relevant factors - with the exception of factor 5(h) - it is essential …' (at [36]). 30 At [37] the Tribunal reasoned that because the precise dates of the incidents in Vietnam are unclear, the most generous interpretation of the date of the incidents, being the date the applicant ceased operational service in May 1967, the clinical onset (or worsening) would need to have occurred by November 1967. 31 At [38] to [42] of its reasons, the Tribunal summarised the medical examinations, consultations and 'treatment' the applicant underwent, attended, received (or did not seek) from 8 February 1968 (the day before his discharge from the Army) until he was first diagnosed with CP in March 2003. 32 Nothing that the Tribunal said, reasoned or reviewed in [36] to [42] of its reasons involved any fact finding on its part; and the review of his medical history from [38] to [42] was wholly confined to the material before it. 33 The Tribunal then referred to the meaning of 'clinical onset' considered by the Full Court in Lees v Repatriation Commission (2002) 125 FCR 331, referring to the analysis of the Tribunal in Re Robertson v Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded at 670 that: '… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.' and noted this analysis was specifically endorsed by Branson J in Cornelius at [26]. 34 Finally, in relation to factors 5(a), (b) and (e) the Tribunal said at [45] (second) and [46] (second): '45. … Mr Riley made no complaint about his knees at his medical discharge because he did not think that the condition of either knee warranted mention. Also, on his evidence, Mr Riley had seen at least two doctors in the 1970s and 1980s about his knees. However, there was no evidence of a diagnosis of chondromalacia patellae having being [sic] made at those times. This would be unusual if Mr Riley had suffered the condition since 1967, particularly given the evidence of Dr Millons that the condition continues to develop over time. I do not accept Dr Giblin's evidence that the condition could be present 'microscopically' even if a doctor could not detect it on examination. The accepted definition of clinical onset referred to in Robertson and Cornelius relies on the classification by a doctor of symptoms upon presentation by the patient. There was no medical evidence suggesting that the condition was diagnosed at any time close to Mr Riley's military service. 46. I therefore find that the clinical onset of chondromalacia patellae was not until a date outside the 6 months required by factors 5(a) and (b). Similarly, if the condition was not present until after mid 1967, then there can be no clinical worsening associated with service as required by factor 5(e).' 35 In relation to factor 5(h) - 'inability to obtain appropriate clinical management for [CP]' - the Tribunal noted that factor 5(h) is qualified by cl 6 of the SoP. Factor 5(h) only applies in circumstances where there is a 'material contribution to, or aggravation of, [CP], where the [veteran's] CP was suffered or contracted before or during (but not arising out of) [his] relevant service.' 36 It followed, the Tribunal observed, that for factor 5(h) to apply, it would need to be satisfied that the condition was suffered before or after the applicant's operational service. It noted that the contention made on behalf of the applicant, about not wanting to consult doctors in Vietnam about his knees for fear of being labelled an 'ops-dodger', necessarily relies on a finding that the condition arose as a result of the 1965 injury. 37 At [52] the Tribunal concluded: 'I have already found that the clinical onset of Mr Riley's chondromalacia patellae was not until some time after his operational service, and not before his discharge from the Army. That being the case, Mr Riley cannot succeed on factor 5(h).'

THE APPLICANT'S GROUNDS OF APPEAL AND CONCLUSIONS THEREON 38 As noted in [2] above, the applicant's appeal is predicated on four grounds: two relating to the Tribunal's opinion that the hypothesis raised in respect of factor 5(a) of the SoP is not a reasonable one; and two relating to the Tribunal's opinion that the hypothesis raised in respect of factor 5(h) of the SoP is also not a reasonable one. 39 The applicant's written and oral submissions were confined to these grounds.

The First Ground: Paragraph 4(i) of the Supplementary Notice of Appeal 40 The first ground alleges error in that the Tribunal concluded that the hypothesis could only be reasonable by reference to factor 5(a) (and factors 5(b) and 5(e)) if there had been 'a contemporaneous diagnosis of [CP] within six months of direct trauma to the affected knee'. 41 In his written submissions, the applicant refers to the last two sentences of [45] (second) of the Tribunal's reasons (see [34] above), in support of this ground, but I do not read these sentences, particularly the last, as the Tribunal saying that a medical diagnosis of CP must be made within six months of direct trauma to the affected knee for factor 5(a) to be met. Rather, the Tribunal is merely recording the fact that no such diagnosis was made until 2003. When the Tribunal's reasons are read in context, the Tribunal was correct, having regard to all the material before it, to observe that prior to Dr Diebold's diagnosis in 2003, there was no earlier diagnosis. However, it would be wrong, in my view, to conclude that this meant that the Tribunal required that the diagnosis of clinical onset, as explained in [33] above, be made at any specific time or close to the applicant's military service. 42 This ground is not made out.

The Second Ground: Paragraph 4(ii) of the Supplementary Notice of Appeal 43 The second ground alleges error in that the Tribunal proceeded on the basis that it was entitled, and required, to resolve possible conflicts in the evidence and make a finding as to the time when the applicant experienced clinical onset of his CP. 44 The applicant's complaint appears to be with the Tribunal's use of the expression 'determine' in [36] of its reasons. He suggests that the expression 'determine' means that the Tribunal embarked on impermissible fact-finding. I do not agree. I agree with the Commission's short answer, that the Tribunal was simply acknowledging that, in terms of the third step in Deledio, it was required to 'form an opinion' and that the expression 'determine', in the context of the Tribunal's understanding that its task was not to find facts (at [35]), meant no more than forming an opinion. 45 The Tribunal, at [45] (second) and [46] (second) of its reasons, was doing no more than setting out the process by which it formed the opinion that the hypotheses were not reasonable by reference to factors 5(a), 5(b) and 5(e) of the SoP. It was not, despite the use of the word 'find' in [46] (second), involved in an exercise in fact-finding, specifically, as to the time when the applicant experienced clinical onset of his CP, outside the process of forming that opinion. 46 Nor was the Tribunal involved in resolving possible conflicts in the evidence because there were none. The Tribunal's non-acceptance of the evidence of Dr Giblin referred to at [45] (second) of its reasons was not by way of preferring the evidence of another practitioner; rather, it was by reference to the accepted definition of clinical onset referred to in [33] above. 47 This ground is not made out.

The Third and Fourth Grounds: Paragraphs 4(ii) and (iv) of the Supplementary Notice of Appeal 48 The third ground alleges error in that in deciding whether the hypothesis was upheld by factors 5(h) and 6 of the SoP on the material before it, the Tribunal proceeded on the basis that only if that material pointed to clinical onset of the applicant's chondromalacia patellae at a particular time. 49 More specifically, the applicant complains that the Tribunal's reference to clinical onset was a distraction from the question posed by factor 5(h): factor 5(h) does not depend on the existence of material pointing to clinical onset of CP at any time; the factor depends on the existence of material pointing to the existence of CP before operational service and an inability to obtain appropriate clinical management for that condition. 50 So much may be accepted, but I do not read the reference in [52] of the Tribunal's reasons to its finding, made earlier in relation to factor 5(a) (and factors 5(b) and 5(e)), that clinical onset of the applicant's CP was not until sometime after his operational service, and not before his discharge from the Army, making existence of material pointing to clinical onset of CP before operational service a requirement before factor 5(h) (as qualified by cl 6 of the SoP) can be met. 51 It seems to be common ground that meeting factor 5(h) in the applicant's case depends on the existence of CP before operational service. All the Tribunal is saying at [52] of its reasons is that, in the absence of a diagnosis of CP before operational service, the underlying premise upon which factor 5(h) operated did not exist. 52 Moreover, as I read what the Tribunal said at [47], [48] and [50] of its reasons, it was of the opinion that the applicant did not fit the template for factor 5(h) because, additionally, he did have an ability to obtain appropriate clinical management for CP. Doctors were available; and on some occasions he was prepared to, and in fact did, seek medical assistance for other conditions. 53 I do not think the third ground is made out. 54 The fourth ground alleges error in that the Tribunal, in deciding whether an hypothesis was raised by the material that was upheld by factors 5(h) and 6 of the SoP, proceeded on the basis that it was entitled, and required, to resolve possible conflicts in the evidence and make findings of fact. 55 I am unable to identify in [47] - [52] of the Tribunal's reasons any impermissible resolution of possible conflicts in the evidence or impermissible findings of fact, which I take to mean findings outside the process of forming an opinion on the material before it as to whether there is an hypothesis which is reasonable in the relevant sense, that is, of meeting the template for factor 5(h) (as qualified by cl 6 of the SoP). 56 The appeal must be dismissed with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 21 April 2008 Counsel for the Applicant: Mr P Hanks QC with Mr M Perry

Solicitor for the Respondent: Australian Government Solicitor

Entitlements Act 1986(Cth)

Veterans' Entitlements Act 1986(Cth)ss 9, 13, 120, 120A

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