Statement of Principles concerning frostbite (Balance of Probabilities) (No. 12 of 2018)

The instrument relies on and establishes a small set of core legal‑medical concepts that govern its application.

Definition of frostbite and scope (s7)

• Frostbite is defined as a thermal injury involving the freezing of skin, subcutaneous tissues or deep tissues (s7(2)(a)). The definition expressly excludes hypothermia and cold injuries not involving tissue freezing (s7(2)(b)). The instrument therefore segregates frostbite from other cold‑related presentations even when ICD coding might overlap (s7(3)-(4)). Death from frostbite includes death from a terminal event or condition that was contributed to by a person’s frostbite (s7(5)); "terminal event" is defined in the Schedule and includes pneumonia, respiratory failure, cardiac arrest, circulatory failure and cessation of brain function (Schedule 1).

Evidentiary basis (s8)

• The Repatriation Medical Authority states the standard basis for the SoP: on the sound medical‑scientific evidence available, it is more probable than not that frostbite and death from frostbite can be related to relevant service (s8). This places the medical causation standard within the ordinary civil balance of probabilities, applied to the medical‑scientific evidence the Authority relied upon when making the SoP.

Enumerated causation factors (s9)

• The SoP limits the factual circumstances that can, on their own or in combination, establish a connection between frostbite (or death from frostbite) and relevant service. At least one of the following must exist (s9):
  1. Exposure of the affected body part to freezing temperatures within the 24 hours before clinical onset of frostbite (s9(1)); or
  2. Inability to obtain appropriate clinical management for frostbite (s9(2)).

Relationship to relevant service (s10)

• Any factor in s9 must be related to the person’s relevant service (s10(1)). The instrument places a substantive limit on the application of s9(2): that factor applies only to material contribution to, or aggravation of, frostbite where the person’s frostbite was suffered or contracted before or during (but did not arise out of) the person’s relevant service (s10(2)). In practical terms this limits the inability‑to‑obtain‑treatment pathway to pre‑existing or non‑service‑arising frostbite that was materially worsened by lack of care connected to the service period.

Cross‑application with other SoPs (s11)

• If a factor in s9 relates to an injury or disease covered by another SoP determined under s196B(3) of the VEA, the factors in that other SoP apply in accordance with its terms as in force from time to time (s11). The instrument therefore preserves the Authority’s existing cross‑referencing mechanism so that overlapping conditions are governed by the applicable text of each SoP.

Administrative context and limits

• The SoP was made under authority of s196B(3) of the VEA (s3) and expressly revokes the earlier frostbite SoP (No.24 of 2009) (s4). It applies only to claims to which s120B of the VEA or s339 of the MRCA apply (s5). The instrument itself does not set out claim processing, benefits, or enforcement mechanisms beyond these definitional and causal frameworks.

This SoP affects several defined and practical groups through its operation in claims under the VEA and the MRCA.

Primary affected groups

• Veterans and current or former members of the Forces whose claims under the VEA or MRCA concern frostbite or death from frostbite. The instrument explicitly applies to claims to which s120B of the VEA or s339 of the MRCA apply (s5). Those claimants must satisfy the causal connection principles in the SoP to have frostbite treated as connected with relevant service for the purposes of those statutory schemes.

• Decision‑makers who determine claims under the VEA and MRCA. The instrument itself is made by the Repatriation Medical Authority (s3) and is intended to be applied by the relevant decision‑makers processing claims governed by the referenced statute sections (s5). The SoP provides the medical/causation template those decision‑makers will use when assessing whether frostbite is connected to relevant service.

Medical professionals and record keepers

• Clinicians who diagnose and manage frostbite will be relied on to produce the medical records and expert opinions necessary to show the facts the SoP requires, for example evidence of freezing exposure within 24 hours before clinical onset (s9(1)), or documentation demonstrating inability to obtain appropriate clinical management (s9(2)). The SoP’s reference to ICD‑10‑AM codes (s7(3)-(4)) guides diagnostic coding but the textual definition governs outcomes.

Administrative bodies and insurers

• While the instrument itself does not specify payment or compensation mechanisms, it operates within the VEA and MRCA claim frameworks. Entities responsible for administering entitlements under those Acts will apply the SoP to determine whether frostbite qualifies as connected to service. The instrument therefore has downstream effects on entitlement decisions administered under those Acts (s5).

Indirectly affected parties

• Units, commanders, or employers within Defence may be indirectly affected through the evidentiary and administrative burdens their personnel create or alleviate. For example, record keeping about environmental exposure, medical evacuation, or attempts to obtain clinical management may determine whether s9(1) or s9(2) can be satisfied in a claim. The instrument itself does not impose duties on these parties, but their operational records bear on claim outcomes.

Particular constraints and delimitations

• The SoP’s definition excludes hypothermia and other cold injuries not involving tissue freezing (s7(2)(b)). Claimants whose primary diagnosis is hypothermia or other non‑freezing cold injury will not have those conditions treated as “frostbite” under this SoP. Where a claimed factor in s9 refers to an injury or disease covered by another SoP, that other SoP will govern the factors (s11).

This instrument does not create new criminal offences or administrative penalties; it sets duties and rights insofar as it prescribes which factual circumstances must be established to treat frostbite as connected to relevant service for claims under specified statutory provisions.

Duties (procedural/evidentiary)

• Claimants seeking recognition that frostbite is connected to relevant service must establish at least one of the factors in s9. That carries an evidentiary duty to provide sufficient medical and factual material showing either:

  • Exposure of the affected body part to freezing temperatures within 24 hours of clinical onset (s9(1)); or
  • Inability to obtain appropriate clinical management for frostbite (s9(2)).

• The duty to connect any established factor to the person’s relevant service is explicit: a factor in s9 must be related to the person’s relevant service (s10(1)). Therefore claimants must show a nexus between the factor (for example, recorded exposure during a particular deployment or posting) and their relevant service as defined in the Schedule.

• Where a claimant relies on s9(2) (inability to obtain appropriate clinical management), that factor is available only in circumstances where frostbite was suffered or contracted before or during relevant service but did not arise out of relevant service; and it must materially contribute to, or aggravate, the frostbite (s10(2)). Practically, this requires claims to show timing of the injury relative to service and the causal step‑down that lack of care had a material effect.

Rights (substantive)

• Claimants have the procedural right to have the SoP applied to their claims where s120B of the VEA or s339 of the MRCA are relevant (s5). The SoP determines whether frostbite or death from frostbite can be treated as connected to service for the purposes of those provisions.

• Where a factor in s9 refers to another injury or disease covered by another SoP, the claimant has the right to have that other SoP’s factors applied in accordance with its terms (s11).

Decision‑maker duties

• The SoP itself is issued by the Repatriation Medical Authority under s196B(3) of the VEA (s3). Decision‑makers applying the VEA and MRCA must take the SoP into account for claims governed by the referenced statutory sections (s5). The instrument does not state the mechanics for how decision‑makers must record or justify reliance on the SoP, but its existence sets the medical template they must consult.

Limitations and exclusions

• Frostbite, as defined, excludes hypothermia and other cold injuries not involving tissue freezing (s7(2)(b)), so claimants whose conditions fall into those excluded categories do not have rights under this SoP for those conditions. Further, the instrument’s death definition ties death to a terminal event contributed to by frostbite (s7(5)), rather than any death of a person with a history of frostbite.

No criminal penalties or express sanctions

• The instrument contains no provisions creating offences, monetary penalties, or specific administrative sanctions. Its operative effect is confined to evidentiary and causal guidance for claims under the VEA and MRCA.

The Statement of Principles is not an enforcement mechanism in the criminal sense. It establishes medical and causal criteria to be applied in the administrative adjudication of claims under the VEA and MRCA. The instrument itself contains no penal provisions, fines, or enforcement procedures.

Nature of enforcement

• Enforcement of the SoP occurs through its application by claim decision‑makers within the VEA and MRCA systems. Section 5 states the instrument applies to claims to which s120B of the VEA or s339 of the MRCA apply (s5). That locates the SoP as part of the evidentiary framework decision‑makers will use when determining entitlement under those statutory schemes. Any adverse consequences of failing to satisfy the SoP therefore flow from administrative determinations under the VEA or MRCA (for example, denial of a claim), not from the SoP itself.

Absence of direct sanctions

• The instrument contains no provision for administrative penalties against claimants, clinicians, or third parties for failure to comply with its terms. There is no provision creating offences for false statements, nor does the instrument prescribe compliance inspections, sanctions, or corrective orders.

Revocation of earlier instrument

• The instrument revokes the earlier Statement of Principles concerning frostbite No.24 of 2009 (s4). The practical enforcement effect of that revocation is that decision‑makers must apply this instrument (No. 12 of 2018) in place of the revoked text for claims that fall within its scope. The revocation is an administrative legal effect rather than an enforcement penalty.

Implied procedural consequences

• The principal consequence of failing to establish the factors set out in s9 is that a decision‑maker determining a claim under the VEA or MRCA may find that frostbite or death from frostbite is not connected with the circumstances of relevant service, and entitlement under the associated statutory provisions may be refused or limited. The SoP provides the causation gate; administrative outcomes under VEA/MRCA follow from whether claimants clear that gate.

Record and evidence implications

• Because the SoP defines the factual thresholds (for example 24 hours before clinical onset in s9(1)), claimants and clinicians bear the practical burden of producing contemporaneous or credible evidence addressing those thresholds. The SoP does not prescribe evidentiary rules or standards beyond its substantive requirements.

This instrument sits within the statutory framework of the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 and interacts with them and other instruments principally by providing medical causation criteria used when determining claims.

Statutory placement and authority

• The SoP is made under s196B(3) of the VEA (s3). Its direct applicability is confined to claims to which s120B of the VEA or s339 of the MRCA apply (s5). As such, the instrument functions as a medical‑legal input to decisions taken under those statutory provisions. The instrument does not amend either Act; it operates under the authority those Acts confer on the Repatriation Medical Authority.

Interaction with other Statements of Principles (s11)

• Where a factor in s9 refers to an injury or disease that is the subject of another SoP made under s196B(3) of the VEA, the factors in that other SoP apply in accordance with its terms (s11). That cross‑reference means overlapping conditions are governed by the applicable SoP text; the frostbite SoP does not displace or override other SoPs where a factor points to another diagnosed condition.

Diagnostic classification reference (s7(3)-(4))

• The instrument refers to ICD‑10‑AM codes T33, T34 and T35 as those commonly associated with frostbite (s7(3)). It specifies that a reference to an ICD‑10‑AM code is a reference to the code assigned in The International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, Australian Modification, Tenth Edition (s7(4)). The instrument, however, makes clear the operative meaning of frostbite is the textual definition in s7(2), not the code label alone (s7(3)). This aligns medical coding with statutory definition but leaves the textual definition paramount.

Relationship to claim‑determining provisions

• By applying to claims under s120B of the VEA or s339 of the MRCA (s5), the SoP interacts with those provisions’ own legal thresholds and processes. The instrument does not itself stipulate the rights, remedies, or benefits under those sections, nor the procedural steps for review or appeal; it provides the medical causation criteria that decision‑makers will use in applying the statutory entitlements.

No express interaction with external regulatory or criminal law

• The instrument contains no provisions that directly modify or interact with external criminal, civil liability, occupational health and safety, or insurance law outside of the VEA and MRCA claims context. Any effect on those regimes would be indirect, for example through the evidentiary records created in the course of a claim.

Scope limitations and definitional hierarchy

• The SoP’s definition excludes conditions such as hypothermia (s7(2)(b)). Where a claimant’s presentation is coded under ICD‑10‑AM but does not meet the textual definition in s7(2), the SoP will not treat that presentation as frostbite for VEA/MRCA claim purposes. Where multiple SoPs may be relevant, s11 dictates that the other SoP’s factors apply according to its terms.

Administrative law implications

• The instrument is an administrative instrument meant to be applied by decision‑makers. Challenges to decisions using the SoP would arise under the procedural and merits/ judicial review mechanisms applicable to VEA and MRCA decision‑making. The instrument itself contains no internal review or appeal provisions; those are governed by the parent Acts and their associated processes.

The instrument carries limited amendment history within its own text; the following points are stated in the instrument itself.

Creation, date and commencement

• The instrument is identified as No. 12 of 2018 and is dated 22 December 2017 (cover page). It commenced operation on 29 January 2018 (s2).

Authority for the instrument

• It was made under subsection 196B(3) of the Veterans' Entitlements Act 1986 (s3).

Revocation of prior instrument

• The instrument revokes the earlier Statement of Principles concerning frostbite No. 24 of 2009, which had been made under the same VEA provision (s4). The revocation is explicit; the new SoP replaces the prior frostbite SoP for the purposes of claims within its scope.

No other amendments recorded

• The text of the instrument does not record any subsequent amendments, variations, or modifications after commencement. It makes no provision for periodic review or expiry. Any further amendment, replacement or revocation would require the same statutory authority (s196B(3) of the VEA) and would be recorded in a subsequent instrument.

Terminological updates and cross‑references

• The instrument updates and restates the meaning of frostbite (s7), the factors required (s9), and the relationship to service (s10). It also cross‑references other Statements of Principles (s11) and refers to a specific edition of the ICD‑10‑AM for diagnostic coding (s7(4)). These are the principal substantive changes relative to the earlier SoP it revokes, as recorded in the instrument; the text does not enumerate the precise differences from the previous instrument beyond the revocation itself.

How to find amendment records

• This instrument is self‑contained and identifies its number and commencement date. Any later amendment records, if they exist, would be documented by the issuing authority or in the legislative instrument registry, but no such post‑commencement changes are recorded in the instrument text supplied.

The instrument itself does not record any litigation history. It contains no references to court decisions, judicial review outcomes, or precedent‑setting cases. The text does not state that it has been the subject of any legal challenge.

What the instrument records

• The instrument records administrative facts: the date it was made (22 December 2017), its commencement date (29 January 2018) and the revocation of an earlier SoP (No. 24 of 2009) (s2-s4). It does not record, refer to, or summarise any litigation concerning its terms or application.

Implications for researchers and practitioners

• Practitioners seeking to identify litigation engaging the SoP will need to consult external legal sources, court records or administrative review decisions related to claims under s120B VEA or s339 MRCA. The instrument provides the substantive criteria but does not catalogue disputes or adjudicative outcomes in which those criteria were applied.

Absence of case references

• The instrument includes no case citations and does not name any judicial or tribunal authority. It therefore offers no internal guidance as to how courts or tribunals have interpreted its provisions.

Caveat

• The lack of litigation history in the instrument does not imply the SoP has never been cited or contested in adjudicative proceedings; it simply means the instrument text contains no record of such litigation. External searches of administrative tribunal and court decisions would be necessary to discover any case law applying or construing this SoP.

This SoP is concise but contains several specific drafting features and potential evidentiary traps that practitioners should note when advising claimants or preparing decisions.

Narrow, time‑limited exposure requirement (s9(1))

• The requirement that the affected body part was exposed to freezing temperatures within the 24 hours before clinical onset is precise (s9(1)). The instrument does not define "clinical onset." That creates a potential evidentiary issue: practitioners must establish both the timing of exposure and the timing of clinical onset with sufficient specificity to meet the 24‑hour window. The SoP does not provide methodology for resolving ambiguous onset timings.

Textual definition takes precedence over ICD code (s7(2)-(4))

• Although the instrument notes that frostbite attracts ICD‑10‑AM codes T33, T34 or T35 (s7(3)), it expressly states that the meaning of frostbite for the SoP is the textual description in s7(2). Consequently, a diagnostic code alone may be insufficient if the clinical facts do not meet the textual freezing‑of‑tissue requirement. Practitioners should not rely solely on coding.

Exclusion of hypothermia and other cold injuries (s7(2)(b))

• Conditions commonly associated with cold exposure but not involving tissue freezing, such as hypothermia, are excluded from this SoP (s7(2)(b)). Claims that present mixed or ambiguous clinical features (for example both hypothermia and freezing injuries) may require careful clinical articulation to show the features that bring the condition within the SoP.

Scope of s9(2) (inability to obtain appropriate clinical management)

• The phrase "inability to obtain appropriate clinical management for frostbite" is broad and undefined in the instrument (s9(2)). The SoP then limits the application of this factor to material contribution/aggravation where frostbite was suffered before or during but did not arise out of relevant service (s10(2)). Practitioners must therefore show:
  • The pre‑existence or non‑service origin of the frostbite; and
  • That inability to obtain appropriate care, in the context of the person’s relevant service, materially contributed to or aggravated the frostbite.

Burden of proof and link to relevant service (s10)

• The SoP requires the existence of a factor in s9 to be related to relevant service (s10(1)). Where exposure occurred outside the service period, or clinical management was unavailable for reasons unrelated to service, claimants may struggle to satisfy the service nexus.

Death from frostbite requires contribution to a terminal event (s7(5))

• Death is only covered if it involved a terminal event or condition to which the person’s frostbite contributed (s7(5)). The Schedule defines terminal events in a particular, non‑exhaustive list (pneumonia, respiratory failure, cardiac arrest, circulatory failure, cessation of brain function). A death that is temporally removed from frostbite and lacking evidence of such contribution may not be captured by the SoP.

Cross‑referencing to other SoPs may shift required evidence (s11)

• If a factor in s9 refers to another injury or disease covered by a different SoP, practitioners must consult that other SoP and satisfy its factors, as it applies "in accordance with the terms of that Statement of Principles as in force from time to time" (s11). This can introduce additional or different thresholds for causation.

No internal procedural guidance

• The instrument sets substantive criteria but contains no procedural rules on how to present, prove, or adjudicate those criteria within the VEA/MRCA systems. Practitioners must therefore pay attention to the procedural rules and evidentiary expectations in the parent Acts and decision‑maker practice directions.

Revocation replaced prior SoP (s4)

• The revocation of the 2009 SoP means that earlier decisions or expectations based on the previous instrument may need to be reassessed in light of the new criteria. Practitioners should check whether specific factual patterns previously accepted under No.24 of 2009 remain acceptable under the new test.

ICD version reference (s7(4))

• The instrument refers to the Tenth Edition ICD‑10‑AM effective 1 July 2017 (s7(4)). Where parties rely on diagnostic coding, they should ensure the coding edition and diagnostic labels used in clinical records align with the edition referenced in the SoP.

For claimants, clinicians and advisers preparing or assessing claims under the VEA or MRCA that involve frostbite or death from frostbite, the SoP identifies narrow, evidence‑based pathways to satisfy the causal requirements. Compliance is primarily an evidentiary and linkage exercise.

Immediate practical steps

1. Establish precise clinical diagnosis consistent with the SoP’s textual definition.

   • Ensure medical records explicitly describe freezing of skin, subcutaneous tissues or deep tissues (s7(2)(a)). Avoid reliance on a generic "cold injury" label that does not specify tissue freezing.
   • If ICD coding is used, note the codes T33-T35 but ensure the narrative diagnosis matches the textual definition (s7(3)-(4)).

2. For s9(1) claims (24‑hour exposure window):

   • Document the date, time and circumstances of exposure to freezing temperatures for the affected body part.
   • Document the timing of "clinical onset" as recorded by a treating clinician. Because "clinical onset" is not defined in the instrument, contemporaneous clinical notes, onset symptom descriptions, and first treatment records (e.g. emergency department notes) will be crucial to show the 24‑hour proximity (s9(1)).

3. For s9(2) claims (inability to obtain appropriate clinical management):

   • Compile evidence demonstrating attempts to obtain care and reasons for inability (e.g. service location, absence of medical facility, refusal, transport issues, administrative denial). The instrument does not define "appropriate clinical management," so contemporaneous records and expert comment on acceptable standards of care for frostbite will assist in proof (s9(2)).
   • If relying on s9(2), demonstrate that the frostbite was suffered before or during relevant service but did not arise out of the service (s10(2)). Provide records establishing the timing of injury relative to the service period.

4. Demonstrating nexus to relevant service (s10(1)):

   • For either factor, explicitly tie the exposure or inability to obtain care to the person’s relevant service as defined in the Schedule (eligible war service, defence service or peacetime service under MRCA) (Schedule 1 definitions). Include service records, deployment logs, postings, orders, and witness statements where available.

5. Death cases (s7(5) and Schedule 1):

   • For a death claim, assemble medical evidence establishing that the frostbite contributed to a terminal event listed in the Schedule, such as pneumonia or respiratory failure, or demonstrate logical clinical pathways by which frostbite materially contributed to the terminal event (s7(5); Schedule 1 terminal event definitions).

Evidence and expert reports

• Obtain contemporaneous clinical records and, where necessary, specialist expert reports addressing:
  • Whether the clinical presentation meets the SoP’s definition of frostbite (s7(2));
  • The timing of exposure relative to clinical onset (s9(1));
  • Whether failure or inability to obtain appropriate clinical management occurred and whether it materially contributed to or aggravated the condition (s9(2); s10(2));
  • The causal linkage between the established factor and the person’s relevant service (s10(1));
  • For death claims, the causal contribution of frostbite to the listed terminal event (s7(5)).

Administrative positioning

• Record in claims submissions which specific SoP factors are relied upon (s9(1) or s9(2)) and explain the factual basis for each. Where factors in s9 point to another SoP, identify that SoP and explicate how its factors are satisfied (s11).

Practical record sources

• Defence service logs, unit reports, muster records, transport and evacuation records, medical evacuation (Medevac) notes, clinic registers, sick parade records, emergency department notes, and contemporaneous witness statements are likely sources to establish exposure, onset timing and attempts to obtain care.

Coding and documentation

• Ensure ICD coding, if present, corresponds to the edition referenced (ICD‑10‑AM Tenth Edition as at 1 July 2017) (s7(4)), but do not rely on codes alone; narrative clinical detail is primary.

Anticipate common evidentiary weaknesses

• Where onset timing is vague, consider seeking retrospective expert opinion supported by plausible timelines and recorded symptom progression. Where inability to obtain treatment is asserted, contemporaneous logs of attempts to seek care (telephone records, transport requests, orders) will be persuasive.

Cross‑SoP coordination

• If the claim involves other injuries or diseases that have their own SoPs, analyse and comply with those SoP factors where s11 indicates they apply. Provide the decision‑maker with a clear map of how each SoP factor is satisfied.

Record retention and presentation

• Maintain copies of all service and medical records and present them in a timeline format demonstrating exposure, onset, attempts to obtain care, and service nexus. Because the instrument focuses on specific fact patterns, clarity and chronological sequencing will assist decision‑makers applying the SoP.

Final note

• The SoP frames the medical causation question narrowly. Complying with it requires careful, document‑based demonstration of one or more of the enumerated factors and an explicit connection of those factors to relevant service as defined in the Schedule.