FEDERAL COURT OF AUSTRALIA

Gibson v Repatriation Commission [1999] FCA 901

DEFENCE AND WAR – service by enlisted man – disability due to multiple osteochondromatosis and osteoarthritis – benefits claim by ex-serviceman – evidence as to causation – 1994 Amendments to Veterans’ Entitlements Act 1986 (Cth) – whether Tribunal placed burden of proof on applicant – whether Tribunal erred – whether Tribunal provided opportunity to applicant to be heard – whether breach of the rules of natural justice.

Veterans’ Entitlement Act 1986 (Cth)

Ena Mavs Deledio v Repatriation Commission [1997] 25 AAR 369

PAUL ANTONIO GIBSON v REPATRIATION COMMISSION

W25 of 1999

FRENCH J

2 JULY 1999

PERTH

On Appeal from the Veterans’ Appeal Division of the Administrative

Appeals Tribunal constituted by Associate Professor S.D. Hotop, Senior

Member, Brigadier R.D.F. Lloyd, Member and Dr. D. Weerasooriya, Member.

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         There be no order as to the costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On Appeal from the Veterans’ Appeal Division of the Administrative

Appeals Tribunal constituted by Associate Professor S.D. Hotop, Senior

Member, Brigadier R.D.F. Lloyd, Member and Dr. D. Weerasooriya, Member.

REASONS FOR JUDGMENT

History of Proceedings – Claims  and Reviews

1                     Paul Antonio Gibson was born on 11 March 1968.  On 29 January 1991 he enlisted in the Royal Australian Air Force.  He attained the rank of Leading Aircraftman.  However on 28 November 1995 he was discharged from the Air Force as “Medically Unfit for Further Service”.  He suffers from a congenital condition of multiple osteochondromatosis.  This is a condition which is characterised by the presence of multiple bony growths on the bones (known as exostoses).  It may also involve disturbances in bone growth and deformities in the metaphyseal region of the bones.  The latter refers to the region of a long bone corresponding to the beginning of its shaft (diaphysis) and the termination of a secondary bone forming centre attached to the bone and separated from it by cartilage (epiphysis). 

2                     On 8 March 1996 Mr Gibson lodged a claim for a disability pension under the Veterans’ Entitlements Act 1986 (Cth) on the basis that he was suffering from diaphysial aclasis, an earlier but inaccurate diagnosis of his condition.  On his claim for the disability pension and medical treatment, Mr Gibson wrote:

“Airfield Defence Guard Training course was too intense and Aggravated the condition.”

3                     On 1 April 1996 the Repatriation Commission refused the claim on the basis of medical advice from a Departmental Medical Officer that the condition would have occurred irrespective of service or civilian life and that the progress of the disease was part of its natural history.

4                     On 1 July 1996 Mr Gibson applied to the Veterans’ Review Board for a review of the decision of the Repatriation Commission.  On 13 February 1997 the Board adjourned the hearing of his review application to enable Mr Gibson to obtain further evidence.  The further evidence included a report from the Head of Orthopaedics at the University of Western Australia, Professor Wood.  He had been asked if he could offer an opinion on whether it was probable that physical exercise which Mr Gibson was required to undertake in his service with the Air Force had induced symptoms in the previously asymptomatic condition.  Professor Wood said it was feasible that the physical exercise program exacerbated some of his symptoms. There was additional material from a Spanish doctor, Dr Espinosa, who, at the instigation of Mr Gibson’s mother, had examined Mr Gibson when he had visited Spain on leave from the Royal Australian Air Force in 1993/94.  His opinion for the purposes of the Veterans’ Review Board hearing was not based upon any subsequent examination but rather upon documentary material provided by Mr Gibson and his mother.  This material was before the Board when it reconvened in December 1997.  On this occasion it reluctantly decided to again adjourn the hearing to enable Mr Gibson to obtain a report from a relevant specialist about the contention that, through his service, he had suffered permanent worsening of his pre-existing condition.

5                     Eventually on 16 February 1998, the Veterans’ Review Board decided to affirm the decision of the Repatriation Commission.  The Board regarded the key issue in the case to be whether, as a consequence of Mr Gibson’s Air Force service, his claimed condition of diaphysial aclasis had been made permanently worse.  It held that there was no medical evidence before it which addressed that key issue.  It was therefore reasonably satisfied that the material before it did not raise a connection between Mr Gibson's claimed condition and the relevant service as required by the Act. 

6                     On 10 March 1998 Mr Gibson lodged an application with the Administrative Appeals Tribunal for review of the decision of the Veterans’ Review Board.  The Tribunal heard evidence on 11 and 12 February 1999 and on 12 February set aside the Board’s decision.  In substitution for that decision the Tribunal decided that the conditions of multiple osteochondromatosis and osteoarthritis of the right hip, suffered by Mr Gibson were defence caused within the meaning of s 70 of the Veterans’ Entitlements Act 1986 with effect from 8 December 1995.  The matter was remitted to the Commission for assessment of disability pension payable to Mr Gibson in respect of those conditions. 

7                     On 24 March 1999 Mr Gibson lodged an appeal in this Court from the decision of the Administrative Appeals Tribunal.  The appeal was directed to the Tribunal’s rejection of Mr Gibson’s contention that he was entitled to disability pension not only in respect of his hip condition but in respect of the disease as it affected his whole body and particularly as it affected his knees and right leg.

8                     The grounds of appeal for the most part sought review of factual findings.  Factual review of Tribunal decisions is not available in an appeal under s 44 of the Administrative Appeals Tribunal Act.  However the points advanced on Mr Gibson’s behalf by his mother, who appeared for him on the hearing of the appeal, reduced to two substantive propositions:

1.         That there was a failure by the Tribunal to observe the rules of natural justice in not providing Mr Gibson with an opportunity to be heard by way of closing submissions at the end of the evidence.

2.         That the Tribunal wrongly imposed the burden of proof upon Mr Gibson.

Statutory Framework

9                     The Veterans’ Entitlements Act 1986 is described in its preamble as “An Act to provide for the payment of pensions and other benefits to, and to provide medical and other treatment for, veterans and certain other persons, and for other purposes”.  A helpful overview of the history of veterans’ benefits legislation in Australia and associated case law up to and including the introduction of the 1994 amendments is to be found in the judgment of Heerey J in Deledio v Repatriation Commission [1997] 25 AAR 396.

10                  Part IV of the Act is entitled  “PENSIONS FOR MEMBERS OF DEFENCE FORCE OR PEACE KEEPING FORCE AND THEIR DEPENDANTS”.  Section 68 is an interpretation provision.  Section 69 sets out the service necessary to attract the application of the part.  There is no dispute in this case that Part IV applies to Mr Gibson. 

11                  Section 70 defines the criteria for eligibility for a pension under Part IV.  In the case of a member of the Forces who has become incapacitated from a defence-caused injury or a defence-caused disease the Commonwealth is, subject to the Act, liable to pay pension by way of compensation to the member in accordance with the Act (s 70(1)(b) and (d)). 

12                  An injury or a disease suffered by a member of the Forces shall be taken to be a defence-caused injury or disease if it arose out of or was attributable to any defence service of the member (s 70(5)(a)).  An injury or disease is also taken to be defence-caused if it was suffered or contracted during any defence service of the member but did not arise out of that service or was suffered or contracted before the commencement of the period of defence service of the member but not during that period and in the opinion of the Commission it was contributed to in a material degree by, or was aggravated by, any defence service rendered by the member, being service rendered after the injury was suffered or the disease contracted but not otherwise (s 70 (5)(d)). 

13                  Section 5D(1) of the Act provides definitions of “disease” and “injury” as follows:

“5D(1)  In this Act, unless the contrary intention appears:

“disease” means:

(a)       any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

(b)       the recurrence of such an ailment, disorder, defect or morbid condition;

but does not include:

(c)        the aggravation of such an ailment, disorder, defect or morbid condition; or

(d)       a temporary departure from:

            (i)         the normal physiological state; or

            (ii)        the accepted ranges of physiological or biochemical measures;

            that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);

“injury”  means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(a)       a disease; or

(b)       the aggravation of a physical of mental injury.”

Unless the contrary intention appears a reference to the incapacity of a member of the forces from a defence-caused injury or a defence-caused disease is a reference to the effects of that injury or disease and not a reference to the injury or disease itself (s 5D(2)(b)).

14                  Part VIII of the Act contains general provisions applicable to pensions.   In considering, hearing or determining and making decisions in relation to claims or applications the Commission is not bound by any rules of evidence and may inform itself on any matter in such manner as it thinks just (s 119(1)(f)).  It shall “act according to substantial justice and the substantial merits of the case, without regard to legal forms and technicalities” (s 119(1)(g)).  And it is required to take into account any difficulties that for any reason lie in the way of ascertaining the existence of any fact, matter, cause or circumstance including the effects of the passage of time and absences or deficiencies in official records (s 119h(i) and (ii).

15                  Section 120 of the Act deals with the standard of proof to be applied and relevantly to the present claim s 120(4) provides:

“(4)  Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”

16                  Nothing in the Act entitles the Commission to presume that an injury or disease suffered or contracted by a person is defence-caused or that a claimant is entitled to be granted a pension, allowance or other benefit under the Act (s 120(5)).  The application of the criteria of  “reasonable satisfaction” specified in s 120(4) is covered by s 120B which applies, inter alia, to a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Force.  Section 120B requires the Commission to apply statutory Statements of Principles determined by the Repatriation Medical Authority under s 196B of the Act.  Thus subs 120B(3) provides:

“120B(3)  In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a)       the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b)       there is in force:

              (i)       a Statement of Principles determined under subsection 196B(3) or (12); or

              (ii)      a determination of the Commission under subsection 180A(3);

              that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."

The provision relating to determinations by the Commission under s 180A is not relevant for present purposes.

17                  The Repatriation Medical Authority is established under Part XIA of the Act and, in particular, s 196A.  Its functions are set out in s 196B and the function relevant for present purposes is that under s 196B(3):

“196B(3)  If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:

(a)       eligible war service (other than operational service) rendered by veterans; or

(b)       defence service (other than hazardous service) rendered by members of the Forces;

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

(c)        the factors that must exist; and

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

before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.”

The concept of “sound medical-scientific evidence” is defined in s 5AB(1).  There it is provided that information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:

“(2)…

(a)       the information:

            (i)         is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or

            (ii)        in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

(b)       in the case of information about how that kind of injury, disease or death may be caused – meets the applicable criteria for assessing causation currently applied in the field of epidemiology.”

18                  The concept of a “factor related to service” mentioned in s 196B(3)(d) is elaborated in subs 196B(14).  A factor causing, or contributing to, an injury, disease or death is said to be related to service rendered by a person if, inter alia:

“(a)     it resulted from an occurrence that happened while the person was rendering that service; or

(b)       it arose out of, or was attributable to, that service; or

.

.

.

(d)       it was contributed to in a material degree by, or was aggravated by, that service; or

.

.

.

(f)        in the case of a factor causing, or contributing to, a disease – it would not have occurred:

            (i)         but for the rendering of that service by the person; or

            (ii)        but for changes in the person’s environment consequent upon his or her having rendered that service.”

19                  A determination of a Statement of Principles by the Repatriation Medical Authority under s 196B is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (s 196D). 

20                  Prior to the introduction of the 1994 amendments a government appointed committee chaired by Professor Peter Baume AO had reported on the operation of the legislation and recommended a change in the standard of proof for entitlement from what was described as the “inappropriate and confusing reverse criminal standard” to an across the board test of “reasonable satisfaction”.  The government, however, in introducing the 1994 amendments retained pre-existing concepts of reasonable hypothesis and reverse onus of proof to the criminal standard in relation to war, peacekeeping and hazardous service.  It did, however, establish the Repatriation Medical Authority and introduced the provisions for Statements of Principles.  This was characterised by Heerey J in Deledio (supra) as:

“…a new mechanism which regulated the reasonability of the medical and scientific components of a hypothesis.”

The Statement of Principles appear to operate as statutory instruments but they derive their legal effect entirely from the substantive provisions of the Act and particularly s 120B.

21                  Statements of Principles have been published by the Repatriation Medical Authority in respect of both multiple osteochondromatosis (Instrument No. 2 of 1999 dated 14 January 1999) and osteoarthrosis (Instrument No. 42 of 1998 dated 29 June 1998 as amended by Instrument No. 20 of 1999 dated 14 January 1999).  In each of the Statements the Authority states its view that it is more probable than not that the condition can be related to relevant service rendered by veterans or members of the Forces.  Common form aspects of the Statements of Principles aside, the necessary factors for each of the conditions to be shown to be connected with the relevant service are as follows:

1.         In the case of multiple osteochondromatosis:

“5.  The factor that must exist before it can be said that on the balance of probabilities, multiple osteochondromatosis or death from multiple osteochondromatosis  is connected with the circumstances of a person’s relevant service is:

(a)       inability to obtain appropriate clinical management for multiple osteochondromatosis.”

2.         In the case of osteoarthrosis at least one of the following factors must be related to any relevant service rendered by the person.  The factors that must exist before it can be said that on the balance of probabilities osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person’s relevant service include:

“(a)     suffering inflammatory joint disease in a joint before the clinical onset of osteoarthrosis in that joint;

.

.

.

(d)       having a malalignment of a joint before the clinical onset of osteoarthrosis in that joint; or

.

.

.

(h)       suffering a trauma to a joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint; or

.

.

.

(q)       having a malalignment of a joint before the clinical worsening of osteoarthrosis in that joint;…”

22                  In relation to multiple osteochondromatosis the Statement of Principles specified in par 6 at par 5(a) applies only to material contribution to or aggravation of that condition where the person’s condition was suffered or contracted before or during (but not arising out of) the person’s relevant service.  In relation to osteoarthrosis malalignment was defined in the Statement of Principles to mean 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.

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.”

Grounds of Appeal

47                  There were ten paragraphs set out in the Notice of Appeal under the heading “GROUNDS”.  It is not necessary to set them out here.  They were not all completely intelligible and for the most part seem to have been directed to the Tribunal’s findings of fact.  However on the basis of those grounds and the written and oral submissions made on behalf of Mr Gibson the following points warrant specific consideration:

1.         The Tribunal failed to consider all the factors referred to in the Statement of Principle for osteoarthritis (Ground 4(d)).

2.         The Tribunal incorrectly placed the burden of proof on Mr Gibson to show a connection between his osteoarthritis and his service (Ground 4(f)).

3.         The Tribunal erred in failing to give Mr Gibson an opportunity to address the Tribunal by way of submission (Ground 4(h)).

Failure to Apply the Statement of Principle on Osteoarthritis

48                  In Ground 4(b) of the Grounds of Appeal it was contended that the evidence of Dr Fenollosa made clear to the Tribunal that three of the factors specified in the Statement of Principle for osteoarthrosis were applicable to the applicant.  However only one of those factors is said to have been referred to in the Tribunal’s reasons for decision.  That was the factor referred to in par (d), namely having a malalignment of the joint before the clinical onset of osteoarthrosis in that joint.        

49                  The Tribunal found as a matter of fact that the medical evidence (including CT and X-ray report) did not indicate that Mr Gibson had ever suffered from osteoarthritis in either of his knees.  Dr Owen had said in his oral evidence that there was no evidence of osteoarthritis or osteoarthrosis in Mr Gibson’s knees.

50                  In setting out the Statement of Principles relating to osteoarthrosis the Tribunal had referred only to factors 5(d) and 5(q).  But having regard to its findings of fact that there was no osteoarthritis in either of Mr Gibson’s knees the Statement of Principles was inapplicable in any event.

51                  The evidence of Dr Owen to which the Tribunal referred was that in respect of Mr Gibson’s knees there was no evidence of osteoarthritis or osteoarthrosis although there were some abnormal features.  He had made reference to wear on the lateral surface of the left patella and a narrowing of that joint and stated his belief that Mr Gibson had mechanical problems of a degenerative type.  Mr Gibson had been born with the condition and it had not been caused by or developed with hypermobility of the joint.  The written submission made on behalf of Mr Gibson mentions testimony of Dr Owen that he had damaged his knees following running exercise “as he had swollen knees for two or three days and they’ve kept on getting swollen and in the presence of any abnormal joint which he has because the right hip is malformed and he is extremely likely to have irritated that with excessive weight-bearing activities”.

52                  In Dr Fenollosa’s report of 5 May 1998 he observed that ankle and knee mobility were within normal range.  The only osteoarthrosis to which he referred was “an incipient hip arthrosis”.  In his oral evidence, which was by telephone from Spain, Dr Fenollosa spoke of osteoarthrosis of the hip and saw it as the source of Mr Gibson’s pain.  When asked whether he had examined Mr Gibson in respect of pain in his knees, Dr Fenollosa said:

“At this moment I don’t remember his knees.  I have not…of knees now.”

53                  There was, it seems nothing in the material before the Tribunal to which the Statement of Principles relating to osteoarthrosis could be applied in relation to Mr Gibson’s knees.  The Tribunal’s finding of fact was born out by the evidence.  An attack upon that finding is not available on appeal to this Court under the Administrative Appeals Tribunal Act.

Burden of Proof

54                  In deciding upon a claim which does not relate to operational service and war-caused injury or disease (s 120(1)) or hazardous service or service in a peace keeping force and defence-caused disease (s 120(2)) the relevant standard of proof is reasonable satisfaction (s 120(4)).  The statutory prescriptions define a standard of proof but impose no burden on any one, apart from the Commission itself.  The material before the Commission must raise a connection between the injury, disease or death of the person and some particular service rendered by the person.  And there must be in force a Statement of Principles that uphold the contention that the injury, disease or death of the person is on the balance of probabilities connected with that service.

55                  In relation to the claim that Mr Gibson suffered multiple osteochondromatosis in his knees which entitled him to a pension, the Tribunal identified the relevant fact under the Statement of Principles to be “inability to obtain appropriate clinical management for multiple osteochondromatosis.  The Tribunal decided positively that there had been appropriate clinical management for multiple osteochondromatosis in relation to Mr Gibson’s knees during his defence service.  That determination did not rely in any way upon the application of a burden of proof against Mr Gibson.  As to the claim of osteoarthritis in the knees the Tribunal had positive evidence which it relied upon, including CT and X-ray reports and the oral evidence of Dr Owen that Mr Gibson had not previously suffered from and did not suffer from osteoarthritis in either of his knees.  Again, this finding was not based on any burden of proof but simply upon the evidence before the Tribunal. 

Breach of the Rules of Natural Justice

56                  After hearing from the advocate for the Commission, the Tribunal adjourned to consider what had been put to it.  After thirty four minutes the Tribunal resumed.  The Presiding Member said:

“…We have been discussing the position in relation to the statement of principles regarding the condition multiple osteochondromatosis, and on the view that we have come to on that, we are going to find for the applicant, so we don’t really need to hear from you, Mrs Gatell-Gamir.”

57                  Mrs Gatell-Gamir is Mr Gibson’s mother and was his advocate before the Tribunal.  When she asked the Presiding Member whether he accepted the claim he said:

“I do, yes, we do…the position is that on the statement of principles number two of 1999 in relation to multiple osteochondromatosis, we are reasonably satisfied on the evidence that the factor referred to in paragraph 5(a) of that statement of principles, namely, the inability to obtain appropriate clinical management for the condition multiple osteochondromatosis does exist in this case, or was satisfied in this case.”

58                  Mr Gibson contends that he was wrongly deprived of the opportunity to make closing submissions to the Tribunal on the wider issue than multiple osteochondromatosis in relation to his hips.  He was unable however, in my opinion, to point to any evidence or cogent argument which would have led the Tribunal to a different outcome in relation to the condition of his knees.  The relevant evidentiary material has been fully canvassed before the Court.  Mr Gibson could not generally complain of the want of a hearing given that for two days he had been represented before the Tribunal putting to it evidence in support of his claim. 

59                  It would appear that the Tribunal’ closing remarks understandably led Mr Gibson’s mother to the view that there was no further opportunity to make oral submissions on the issue of the knees.  Notwithstanding that, I am satisfied that taken as a whole the process did not involve a breach of the rules of natural justice in the sense of any real procedural injustice.  The content of the requirements of natural justice will vary from time to time and case to case.  In the present case, having regard to the hearing that had preceded the Tribunal’s determination, the involvement of Mr Gibson and his representative in that hearing and the factual material that was before the Tribunal it could not be said, in my opinion, that he was unfairly denied the opportunity to put his case.  This ground of appeal must also fail.

CONCLUSION

60                  For the above reasons the appeal will be dismissed but, having regard to a concession from the Commission, no order will be made as to the costs of the appeal.

Associate:

Dated:              2 July 1999