FEDERAL COURT OF AUSTRALIA

Harris v Repatriation Commission [2000] FCA 873

VETERANS' AFFAIRS - appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming that the appellant's condition of lumbar spondylosis was not war-caused - application of Statement of Principles defining "trauma to the lumbar spine" - whether Tribunal correctly applied the third stage of Repatriation Commission v Deledio (1998) 83 FCR 82 - assumed facts - whether "acute signs and symptoms of … altered mobility … " could have been assumed by the Tribunal based upon the material before it.

PRACTICE AND PROCEDURE - error of law detected in the decision of the Tribunal - whether it would be futile to remit the matter for redetermination.

Administrative Appeals Tribunal Act 1975 (Cth), s 44, s 44(2A), s 44(4)

Veterans' Entitlements Act 1986 (Cth), s 120(1), s 120(3), s 120A, s 120A(3), s 196B

Repatriation Commission v Keeley [2000] FCA 532 referred

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied

Repatriation Commission v Deledio (1998) 83 FCR 82 discussed

Repatriation Commission v Stares (1996) 66 FCR 594 distinguished

Critch v Repatriation Commission (1996) 43 ALD 574 distinguished

Deledio v Repatriation Commission (1997) 47 ALD 261 approved

Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 referred

Commissioner of Taxation v Polla-Mounter (FCA, 30 November 1995, unreported) applied

Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 referred

TERRENCE JOHN HARRIS v REPATRIATION COMMISSION

VG 157 of 1999

FINN J

4 JULY 2000

SYDNEY (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

            1.         the application be dismissed.

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

REASONS FOR JUDGMENT

1                     This application by way of an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") against a decision of the Veterans' Appeal Division of the Administrative Appeals Tribunal ("the Tribunal") raises an issue of quite narrow compass.  Before describing it I should first refer to two preliminary matters.

2                     The first is that the appeal itself was instituted several days outside the time limit prescribed by s 44(2A) of the Act.  The respondent, the Repatriation Commission, has not opposed the grant of an extension of time in which to institute this appeal.  While emphasising that such leave is not granted as of course, the present is a matter in which it is proper to grant it.

3                     Secondly, the matter in question relates to a decision of the Tribunal affirming a decision rejecting the claim of the applicant, Terrence John Harris, that his condition of lumbar spondylosis was war-caused.  The claim having been first made after 1 April 1994 it was subject to the Statement of Principles ("SoP") issued under s 196B of the Veterans' Entitlements Act 1986 (Cth) ("the VE Act").  It is common ground that, in light of the decision of the Full Court of this Court in Repatriation Commission v Keeley [2000] FCA 532, the version of the SoP to be applied was that which was operative at the time the Repatriation Commission made its decision on Mr Harris' claim on 3 September 1996.  The Tribunal incorrectly applied instrument No 52 of 1998 when the relevantly operative instrument was No 105 of 1995 as amended by No 334 and No 358 of 1995.  The relevant difference in wording between the instrument that was, and that should have been, applied I will note in passing later in these reasons.  While the applicant has not formally conceded that the difference for present purposes is of no consequence, no submissions were made founded on the difference.  The respondent has submitted, correctly, that such difference as there is, is of no practical consequence for present purposes so that even though there may technically have been an error of law, the Tribunal's "decision [would not] have been different if the error had not occurred":  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384.  Given the effect of this error, I consider that it would be futile to set aside the Tribunal's decision and to remit it for rehearing by reason of the error alone.

The Matter in Issue

4                     It is agreed by the parties that the course to be taken by the Tribunal in the present case in applying s 120(1) and s 120(3) of the VE Act in respect of Mr Harris' claimed war-caused injury, was that stated by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:

"1.       The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.         If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [ie Statement of Principles] determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.         If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.

4.         The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved."

5                     It is likewise agreed that the real issue between the parties relates to how the third of the above steps is properly to be taken in the circumstances of the present case.  In the decision under review the Tribunal concluded that a factor prescribed in the relevant SoP was not "open to be inferred, pointed to or raised by the material before [it]".  In consequence the hypothesis advanced by Mr Harris connecting his injury with war service was said to be unreasonable and his claim failed.

The Statutory Setting

6                     To place the issue in context it is necessary to refer to some number of provisions of the VE Act and to the SoP made under it.  First the Act:

"120    Standard of proof

(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

…

(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

            (a)        that the injury was a war-caused injury or a defence-caused injury;

…

            as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

120A   Reasonableness of hypothesis to be assessed by reference to Statement of Principles

…

(3)       For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

            (a)        a Statement of Principles determined under subsection 196B(2) or (11);  or

…

            that upholds the hypothesis.

196B   Functions of Authority

(1)       This section sets out the functions of the Repatriation Medical Authority.

            Determination of Statement of Principles

(2)       If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

            (a)        operational service rendered by veterans;  or

…

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

            (d)        the factors that must as a minimum exist;  and

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

            before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service."

7                     Insofar as relevant to the present matter, SoP No 105 of 1995 (as amended) stated:

"1.       Being of the view that there is sound medical-scientific evidence that indicates that lumbar spondylosis and death from lumbar spondylosis can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of that service, are:

…

            (g)        suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;  or

…

4.         For the purposes of this Statement of Principles

…

'lumbar spondylosis' means a degenerative joint disease, attracting ICD code 721.3, 721.42, 722.52, 722.73 or 722.93, affecting the lumbar spine, (L1-L5, L5-S1), causing local pain and stiffness, sometimes with sciatic radiation due to nerve root pressure by protruding discs or osteophytes, and having degenerative changes in the lumbar spine;

…

'trauma to the lumbar spine' means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred.  Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered."  Emphasis added.

8                     The difference between this SoP and that actually applied by the Tribunal is in the definition of "trauma to the lumbar spine".  That applied by the Tribunal referred to "altered mobility or range of movement of that part of the spine" (emphasis in original) whereas the above definition refers to "altered mobility [etc] of the joint".  As I have noted, I am satisfied that the difference is of no practical consequence for present purposes.

9                     Insofar as the present matter is concerned what has given rise to this application is the manner in which the Tribunal concluded that the applicant did not suffer "altered mobility or range of movement of the joint".

Factual Setting

10                  Given the matter in issue, the evidence needs to be set out in some detail.  In relation to the evidence of the applicant, Mr Harris, it is sufficient to refer to the Tribunal's version of it, supplemented by several references to the transcript of his evidence to the Tribunal.

11                  In its reasons the Tribunal stated the following:

"8.       In Vietnam he was a member of 5 Battalion Royal Australian Regiment which was principally engaged in patrols around the Nui Dat region.  In the course of patrolling, the applicant carried a back pack, weapon, ammunition, water, rations, blankets and webbing weighing approximately 100 pounds.

9.         Mr Harris said that he suffered a back injury during a patrol through what he described as "rubbishy scrub".  He said he was required to break through the scrub and in order to do so he was propelled forward by his section commander who was walking immediately behind him.  He said the section commander would place both of his hands on his belt and lift and propel him forward to crush and flatten the scrub.  He said in the course of being propelled forward his pack shifted to the right and his body was twisted and he landed on his back.  He said he hit a rock or a stump on falling and felt pain in his lower back.

10.       Mr Harris was unable to recall if the pain subsequently travelled to his legs or elsewhere.  Within a few hours of that episode his unit went into harbour for a rest and he then obtained aspirin from the platoon medic.  For the remainder of the patrol aspirin was consumed each morning because he said his back was "sore".  During the night however he either slept on damp ground or was engaged in a guard shift manning a machine gun and in doing this he would lie on his stomach for up to 2 hours.

11.       At the conclusion of the patrol he returned to base and a short time thereafter was given "R and R" leave in Vung Tau for 7 days.  When asked whether he was given the leave for rest associated with his back injury, Mr Harris said "it could have been".

12.       When asked to explain why his discharge medical questionnaires (found within the T-documents) refer to a shoulder injury and not to a back injury Mr Harris said that he was asked by the examining doctors about the shoulder only.  He said questions were not asked of him with respect to his back.

13.       In cross examination Mr Harris acknowledged that he saw Doctors Stone, Hadley and Dumbrell for the purposes of this application.

14.       In a history taken by Dr Stone following examination on 27 October 1997 Dr Stone records at page 4 that Mr Harris believed that he was sent to Vung Tau "because of the low back pain".  Mr Harris was asked by Mr Phillips whether that was so and he replied "it could have been".

15.       Mr Harris was also referred to a history taken by Mr Hadley (T-28) found within a report of 10 January 1996 and in a report of Dr Dumbrell of 21 January 1998 found at T-20.

16.       Dr Hadley does not refer to the applicant being lifted and propelled forward.  Dr Dumbrell does not refer to the back injury at all.  When asked to explain what was suggested by Mr Phillips as being inconsistencies in the histories given to the doctors, Mr Harris said that he did describe the injuries, he was adamant that the incident did occur, that he was not responsible for the language used by the doctors and, insofar as there is an absence of a record of back injury in his discharge medical forms, he said he was more concerned at the time about his shoulder injury.

17.       Mr Harris said that his patrols were carried out on terrain which was sometimes flat sometimes hilly and sometimes mountainous.  He patrolled also through rice paddies and rubber plantations.  He confirmed that he continued his patrol duties immediately following the falling episode and said that he had no choice but to continue.  When asked to describe how he felt on the day following the episode he said he had "more on my mind than pain in the back - I was worried about what was going on around me.  I can't remember if I felt alright".  He said he was able to continue to perform his normal duties and did not suffer any limitation of movement.  Mr Harris said he did sleep at night on the ground which was damp and said that he did suffer aches and pains when waking up.

18.       The applicant was asked to describe the shoulder injury which apparently occurred in 1969 (as is evident from the T-documents).  Mr Harris said that he was then stationed at the Watsonia Barracks in Melbourne where he was assisting to unload a supply truck.  It was his intention to carry a large sack of potatoes on his shoulder however a person assisting the unloading caused the sack to fall or overbalance onto the applicant which as a consequence caused him to fall to the ground on his back with the sack of potatoes on top.  He said he suffered a severe dislocation of the shoulder which required surgery at the Repatriation Hospital.

19.       In re-examination Mr Harris said that when he saw doctors for the purposes of this application he did his best to answer all questions and rely on memory.  He acknowledged that he presently suffers from severe post traumatic stress disorder and that he "gives alcohol a hiding".  He attends the Vietnam Veterans Counselling Service for therapy.  Nonetheless he said his memory was "good".

20.       Mr Harris said that he was unable to recall whether he had any limitation of movement of his back after the episode when he was propelled into the scrub.  He said "a lot was going on around me" at the time and a new area was then being patrolled."

12                  In elaboration of para 20 above the following exchange occurred in cross-examination about Mr Harris' condition immediately after the injury:

"Did you feel - were you feeling all right, and you could march on? -- Well, you had - well, I had to do it.  Whether I felt all right, I can't sort of remember at that time.  You weren't - well, you couldn't stay there, you had to keep going, and they couldn't get you out, and you wouldn't leave your mates.  That's one thing you didn't do.  So if you were injured - unless it was a definite wipe out injury where you were prone, you just kept going.

With the patrol, what tasks could you do after your back?  Could you still perform all the duties?  --  As far as I know, yes. 

And how was your movement?  Did you feel limited? -- No."

13                  In re-examination the question of limitation of movement was returned to:

"When you answered my friend and you said that you had to get going, you had to do all of your duties, you have also given evidence to the Tribunal that you had pain.  Do you recall exactly now, going back to 19966-67 [sic], in fact whether there was limitation of movement to your back as you were going on with your patrol? -- I really can't - well, I can't say if there was any sort of restriction in movement at - you used to just put your stuff on and go."

14                  The other significant body of evidence was given by a Dr Stone, a rehabilitation physician.  He was satisfied that Mr Harris fell within the definition of "trauma to the lumbar spine" that was in the SoP applied by the Tribunal.

15                  In his evidence in chief he was asked both about Mr Harris' limitation of movement and about the SoP:

"Doctor, could I ask you, if a person is suffering pain as a result of an injury can there be conscious or unconscious limitation of that part of the body as a result of that pain? -- Yes.  That's the standard protective mechanism that one sees increased muscle tone associated with trauma.

So when we look at the statement that the veteran gave to you that it doesn't appear to contain and, indeed, he wasn't able to get to the tribunal his specifically - any limitation of movement that he could recall.  What do you say to that in terms of meeting the Statement of Principle? -- Well, that if there was any gross limitation of movement, like, for instance, if there was subluxation of the facet joint, he - the small joints at the back of the lumbar spine, that he would most certainly have recalled having restricted range as a result of that.  But if one has a lesser degree of facet dysfunction, if one has a soft tissue injury, if one has mild and early discal problems, the range of movement associated with the increased muscle spasm of the erectus spinal paravertebral musculature would often be such that the reduction in range of movement wouldn't be overt.

…

And doctor, is it your opinion that the veteran meets the requirement of the Statement of Principle on a reasonable hypothesis? -- Yes, it - I think it is reasonable to - if we go through the definition of trauma it means a discrete injury or Mr Harris described to me the particular injury where they were in this sort of rubbish type scrub.  It was very difficult to penetrate and he hit the ground.  It developed within 24 hours, his description was it was virtually immediate, of symptoms and signs and he mentioned pain and the altered mobility, well, he continued on the patrol, but I think it would be reasonable to say - I can't say it more than that - but I think it's reasonable to state that he had - that he would have had reduced mobility because of the associated muscle spasm that accompanies the acute injury, he probably would have had a reduction of range of movement of the lumbar spine.  I think that it's reasonable evidence that it lasted at least seven days after that event, particularly in view of the fact that he was very sent [sic] on R and R - quote - "because of the low back pain" - end of quote - to Vung Tau."

16                  In cross-examination Dr Stone acknowledged he did not have a history from Mr Harris of altered mobility or range of movement.  He was then asked:

"Now you said earlier in evidence that a soft tissue injury would have reduced range of movement but that this may not have been overt? -- That's right.

If a person was required to undertake strenuous physical activity, would that then make the patient aware that range of movement was in fact restricted and that it would be overt? -- No, not necessarily.  A person would be more concerned about the pain response rather than whether or not there was a loss of, say, 10, 15 per cent of range of movement.  It would be more the pain that would have been impinging upon his awareness.

We've heard earlier in evidence Mr Harris state that he continued on patrol and in re-examination he stated he couldn't say whether there was any restriction in movement.  How would that evidence, in your opinion, affect whether altered mobility or range of movement of that part of the spine, given Mr Harris' evidence, affect your opinion on that, whether it's met? -- Well, I - it is difficult in his sort of situation where you've got whatever span it is, 30-odd years.  To, you know - even if it was much less a time than that, to be sure about restricted mobility, restricted range of movement and it doesn't surprise me at all that Mr Harris is unable to recall but I think that that inability to recall would apply equally either way whether or not there was some degree of restriction on the movement or whether there wasn't."

17                  Dr Stone also indicated that he had no history from Mr Harris of a shoulder injury resulting from the bag of potatoes falling on him.  He accepted that that injury was of the type that trauma could have occurred to his back.

The Tribunal's Decision

18                  The Tribunal acknowledged and then purported to apply in order the stages indicated by the Full Court in Deledio's case that are set out at the beginning of these reasons.  It was accepted that Mr Harris now suffers from lumbar spondylosis and the Tribunal concluded that for the purpose of Deledio's stage 1 an hypothesis existed connecting that condition with Mr Harris' war service.  Stage 2 was satisfied by virtue of the SoP.  It then passed to stage 3 the terms of which it is appropriate to repeat:

"3.       If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail."

19                  The Tribunal recognised that stage 3 was "critical in [its] deliberations".  The particular SoP factor this brought into focus was whether Mr Harris suffered "altered mobility or range of movement of that part of the spine".

20                  Of Mr Harris' evidence it referred to his statement that he had no memory of limitation of movement following the onset of pain;  he was able to continue to perform all duties;  he did not suffer incapacity nor did he seek medical assistance;  he consumed aspirin but because of back pain.  The Tribunal noted (i) that his request for aspirin was usually made at the beginning of the day after he had been asleep or else manning a machine gun in a lying position;  and (ii) while on duty he continued to carry a pack and equipment weighing about 100 pounds.  The Tribunal went on to precis Dr Stone's evidence. 

21                  Mr Harris' counsel had submitted that, in the absence of evidence of altered mobility or range of movement, the Tribunal should "on the whole of the material" raise assumed facts so as to determine whether the hypothesis - if it is to be reasonable - is not fanciful or untenable?  The assumed fact was stated to be that of altered mobility or range of movement etc.

22                  This submission the Tribunal recognised was founded on the decision of the Full Court in Repatriation Commission v Stares (1996) 66 FCR 594 which in turn was followed by Merkel J in Critch v Repatriation Commission (1996) 43 ALD 574.  In the later case - which did not involve consideration of an SoP - Merkel J indicated that for a fact to be assumed it is to be "raised by the material rather than in the abstract":  at 580.

23                  The Tribunal's response to the submission was as follows:

"45.     It is our conclusion that any assumption by us that the applicant did suffer altered mobility or range of movement would be an assumption "arising in the abstract" and therefore impermissible.  As we understand Stares and Critch, an assumed fact must be either open to be inferred, pointed to or raised by the material before us."

24                  The apparent justification for this view is contained in the following paragraphs of the Tribunal's reasons:

"47.     Whilst we are aware that the applicant would have in all probability not been able to withdraw from his platoon and seek medical treatment, the material before us indicates that he remained with his platoon, there were no restrictions made by him or placed upon him by superiors with respect to his duties, he continued to carry a pack and equipment weighing about 100 pounds, he sought aspirin on occasions and specifically had no memory of any limited movement.  The applicant remained engaged in patrols in which he was required to negotiate terrain which was flat or mountainous or hilly and involving rice paddies and rubber plantations.  Whilst it is true that the applicant took R & R leave in Vung Tau for 7 days at the conclusion of this patrol, when specifically asked by Mr DeMarchi whether the leave was taken for rest associated with his back the applicant said 'it could have been'.

48.       In the circumstances and having regard to the 3^rd Deledio stage we must conclude by reason of the hypothesis failing 'to fit within the template' that it is not 'reasonable'.  It follows that the claim must fail.

50.       We were invited by Mr DeMarchi to apply the provisions of s 119 to the applicant's benefit, having regard to the passage of time since the occurrence of the injury in Vietnam.  As Callinan J, said in a Special Leave application to the High Court in (Flentjar v Repatriation Commission) (M 97 of 1997 - refer transcript 19 May 1998 *http://www.austlii.edu.au/au/other/hca/transcripts/1997/M97/1.html), s 119(h) is an 'evidentiary provision ~ designed to excuse the failure or the inability to prove a matter, perhaps to the same strength as it might otherwise be proved'.

51.       Section 119 creates a situation where we might reasonably conclude that certain events or consequences existed which have been forgotten by the passage of time.  In the present case we were invited to find that the applicant did have altered mobility or range of movement following his back pain in Vietnam.  We cannot accept this submission.  There is nothing which points to or permits us to find or assume that altered mobility would have occurred following the fall.  We could accept back pain following the fall.  This would be a naturally accepted consequence.  But altered mobility or range of movement is not.  Indeed there is much to suggest by the applicant's subsequent activities that his mobility was not altered.  Without any disrespect to Dr Stone, there is nothing which points to the applicant suffering a muscle spasm thereby giving rise to altered mobility (refer paragraph 25 earlier)."

The Present Application

25                  Mr Harris' case in short form is that, in light of Dr Stone's evidence and having regard to Mr Harris' inability to recall whether there was any restriction in his movement, it was properly open to the Tribunal to assume the fact of "altered mobility or range of movement of the joint" and it was not appropriate to characterise such an assumption as "arising in the abstract".

26                  Relatedly it was submitted that the Tribunal erred in its application of s 120(1) and (3) and s 120A(3) in that it actually and mistakenly applied the fourth stage of Deledio when it was purportedly engaged in stage 3.

27                  The respondent's case is that the Tribunal correctly identified the course Deledio required it to take;  in reaching the conclusion it did for stage 3 purposes it made findings of fact that were for the Tribunal alone to make;  and the applicant's objection is essentially to the Tribunal's treatment of the facts and not to any error of law as such.

28                  In my own view, while the Tribunal correctly identified the stage of inquiry it had reached (ie Deledio stage 3), it misconceived how that inquiry was to be prosecuted.  It is important when considering that stage to note that it relates to an SoP and to whether the SoP "upholds the hypothesis":  s 120A.

29                  Importantly as Heerey J observed in Deledio at first instance (Deledio v Repatriation Commission (1997) 47 ALD 261 at 275) in a passage approved by the Full Court (83 FCR at 95-96):

"But it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case.  The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can 'uphold' the hypothesis.  In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to 'provide the template within which the individual claims will be determined'.  Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact.  Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact. 

Therefore when s 196B(2) says a factor 'must … exist' and 'must be related to service', it is not interfering with the functions of ss 120(3) and 120(1).  On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc).  If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above).  The particular claim then has to fit the template laid down in the SoP.  The Byrnes methodology is applied.  Do the facts raised by the claimant give rise to a reasonable hypothesis?  Proof of facts is not in issue at this point.  The hypothesis will not be reasonable if it is:

            (i)         contrary to proved or known scientific facts,

            (ii)        obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous;  or

            (iii)       (since 1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

            (iv)       one or more facts necessary to support it are disproved beyond reasonable doubt;  or

            (v)        the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant.  If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact."

30                  In the present case the minimum factors the SoP identified that could relate lumbar spondylosis to operational service were the suffering of a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which trauma was itself related to the service rendered by a person.

31                  Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of "acute symptoms and signs" of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement.  Though the preposition "of" only precedes the word "pain" in the SoP's definition I am satisfied that the definition is to be read as if "of" preceded the words "tenderness" and "altered" as well.  The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to “acute symptoms and signs of pain and/or tenderness, and [meaning “together with”] altered mobility” etc.  When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words “and where such acute symptoms and signs last for a period of at least one week”) and to what, ordinarily, would be the work done by the preposition “of” in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed.  I should add that that construction is the one propounded by the respondent. 

32                  The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each:  see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED").  Moreover, given the requirement that the signs and symptoms must be "acute" - ie that they be sharp or act "keenly on the senses":  SOED, "acute";  there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc.  As the respondent contends, the definition contemplates a significant injury.

33                  What is notable about both the Tribunal’s decision and the applicant’s argument before me is that they focussed on whether or not Mr Harris had suffered, or should be assumed to have suffered, altered mobility.  In the usual case this focus would be both explicable and unexceptionable:  altered mobility would usually be manifest in “signs and symptoms” of such altered mobility.  But bearing in mind that the factor required to exist by the SoP is “acute signs and symptoms of altered mobility” and that, apart from Mr Harris’ inability to recall whether he had altered mobility, the only evidence at all that could be invoked as being consistent with the hypothesis advanced was that of Dr Stone, the precise requirement of the SoP was of particular importance in this case.

34                  The Tribunal, as I have indicated, refused to assume that Mr Harris suffered altered mobility.  That conclusion would necessarily negative any assumption that Mr Harris had “acute symptoms and signs of altered mobility”.  But even if the Tribunal was incorrect in refusing to make the former assumption – and it was at least arguably so in light of Dr Stone’s evidence – it would not necessarily follow that Mr Harris should be assumed to have had acute symptoms and signs of that altered mobility.  I have emphasised the precise requirement of the SoP because of Dr Stone’s evidence that Mr Harris could have suffered an altered range of movement that was not overt.

35                  It is clear, though, that the Tribunal did not address directly the actual issue posed in stage 3 of Deledio ie whether the hypothesis was consistent with the "template" to be found in the SoP.  Its failure so to do involved it in an error of law.  But that does not necessarily mean that the matter must be remitted to the Tribunal for redetermination.

36                  It is well accepted that, on setting aside a decision of the Tribunal, this Court does not have a general power to substitute what it considers to be the correct decision in the circumstances.  The order making power of s 44(4) of the AAT Act is a circumscribed one:  see Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 at 454-455.  Ordinarily, the finding of an error of law will result in the matter being remitted to the Tribunal for redetermination.  But as I indicated at the outset of these reasons, the Court will not remit a matter when it would be manifestly futile to do so.  As Sackville J observed in Commissioner of Taxation v Polla-Mounter (FCA, 30 November 1995, unreported), when reiterating what he had said in Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562:

"if the Court hearing an appeal finds an error of law in the reasons of the AAT, but nonetheless considers that the decision was clearly correct on the material before the AAT, it is open to the Court to dismiss the appeal:  see, for example, Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22 (FCA/FC), at 26-27;  State Rail Authority of New South Wales v Collector of Customs (1991) 33 FCR 211 (FCA/FC), at 217.  Ordinarily this course will not be adopted unless only one result could have been reached by the AAT, had it correctly applied the law:  Secretary, Department of Social Security v McKenzie (1992) 31 ALD 55."

37                  The circumstances of the present case are such that the futility principle ought be applied.  It is not necessary for me to determine whether or not the Tribunal should have assumed the fact it was asked to assume by the applicant, ie that there was altered mobility or range of movement.  I would, however, note this much.  It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis.  Importantly, as Heerey J noted in Deledio (47 ALD at 275), an hypothesis can so be upheld notwithstanding that "one of the disputed facts happens also to be a component of an SoP".

38                  In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact.  But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.

39                  Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) "acute signs and symptoms of altered mobility etc", Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor.  Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an "acute sign or symptom" of that altered mobility.  Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.

40                  The material indicated signs and symptoms of pain, but no more.  The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility (see paras [47]-[51] of its reasons, set out above) point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility.

41                  I am then satisfied that, though founded on an error, the Tribunal's decision should not be set aside as it would be futile to remit the matter to it for redetermination.

42                  Accordingly I would dismiss the application.

Associate:

Dated:              4 July 2000