FEDERAL COURT OF AUSTRALIA

Cook v Repatriation Commission [2000] FCA 1756

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – appeal from decision of Administrative Appeals Tribunal – whether veteran’s osteoarthritis to the knees was war-caused – whether correct Statement of Principles was applied – whether failure to apply correct Statement of Principles constitutes a relevant error of law – whether evidence satisfied Statement of Principles – whether Tribunal correctly applied relevant provisions under Veterans’ Entitlements Act 1986 (Cth) – whether Tribunal correctly applied Repatriation Commission v Deledio (1998) 83 FCR 82 – whether Tribunal provided adequate reasons for decision.

Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B)

Veterans’ Entitlements Act 1986 (Cth) ss 9, 119, 120 and 120A

Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-8 referred to

Keeley v Repatriation Commission (1999) 30 AAR 48 referred to

Repatriation Commission v Keeley (2000) 98 FCR 108 referred to

Harris v Repatriation Commission (2000) 31 AAR 270 referred to

Arnott v Repatriation Commission [2000] FCA 1336 referred to

Mason v Repatriation Commission  [2000] FCA 1409 referred to

Harris v Repatriation Commission [2000] FCA 1687 at pars 7, 38 followed

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 referred to

Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562 referred to

RONALD ERIC COOK v REPATRIATION COMMISSION

V 465 of 2000

WEINBERG J

7 DECEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The applicant pay the respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1                     This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Veterans’ Appeals Division of the Administrative Appeals Tribunal (“the AAT”) made on 16 July 1999.  By that decision the AAT affirmed in part a decision by the Repatriation Commission (“the Commission”), which had been affirmed by the Veterans’ Review Board, that the applicant’s osteoarthritis of the left and right knees was not “war-caused” within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). 

2                     The questions of law raised by the notice of appeal are:

(a)                Was the AAT wrong in law in its application of ss 9, 119, 120 and 120A of the VE Act?

(b)               Was the AAT wrong in its application of Repatriation Commission v Deledio (1998) 83 FCR 82?

(c)                Was the AAT wrong in law in failing to provide adequate and sufficient reasons for its decision rejecting the applicant’s claim for osteoarthritis of the left and right knees pursuant to s 43(2B) of the AAT Act?

The key legislative provisions

3                     Section 9 of the VE Act prescribes the circumstances in which a veteran’s injury or disease should be taken to be “war-caused”.

4                     That section relevantly provides:

“9(1)       Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

                            (a)     the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)     the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

5                     In determining whether a veteran’s injury or disease is war-caused, the Commission must have regard to s 120 of the VE Act.  That section relevantly provides:

“(1)         Where a claim under Part II for a pension in respect of the incapacity from injury or disease 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 … as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

                Note:  This subsection is affected by section 120A.

…

              (3)          In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease … 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;

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

…

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 … with the circumstances of the particular service rendered by the person.

Note:  This subsection is affected by section 120A.”

6                     Section 120A of the VE Act was introduced in 1994.  It provides in part:

“Reasonableness of hypothesis to be assessed by reference to Statement of Principles

“120A(1)   This section applies to any of the following claims made on or after 1 June 1994:

(a)          a claim under Part II that relates to the operational service rendered by a veteran;

…

Note 1:  Subsections 120(1), (2) and (3) are relevant to these claims.

…

(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);

…

that upholds the hypothesis.”

7                     Section 196A of the VE Act establishes a Repatriation Medical Authority (“the Authority”).  Section 196B sets out the functions which are to be performed by the Authority.  These include the obligation to determine what is described as a “Statement of Principles” (“SoP”) in respect of a particular kind of injury, disease or death.  Section 196B(2) relevantly provides:

“(2)         If the Authority is of the view that there is a 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.”

8                     By Instrument No 71 of 1995 an SoP concerning osteoarthrosis was determined by the Authority.  That SoP was subsequently amended by Instrument No 352 of 1995.  Relevantly, it required among the factors that must as a minimum exist before it could be said that a reasonable hypothesis had been raised connecting osteoarthrosis with the circumstances of the operational service rendered by a veteran “a trauma to the relevant joint before the clinical onset of osteoarthrosis”.  The expression “trauma to the relevant joint” was defined in this SoP as meaning:

“… a joint injury 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, swelling, 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.”

9                     Subsequently, on 29 June 1998, the Authority, by Instrument No 41 of 1998, determined a further SoP in respect of osteoarthrosis.  Factor 5(j) of that SoP relevantly provided:

“The factors that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting osteoarthritis or death from osteoarthrosis with the circumstances of the person’s relevant service are:

…

(j)                suffering a trauma to a joint before the clinical onset of osteoarthritis in that joint.”

10                  By Instrument No 19 of 1999 the Authority, on 14 January 1999, amended Instrument No 41 of 1998 by inserting a new definition of “trauma to a joint”.  That new definition was in the following terms:

““trauma to a joint” means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint.  These acute symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:

(a)               immobilisation of the joint or limb by splinting, sling or similar external agents; or

(b)               injection of corticosteroids or local anaesthetics into that joint; or

(c)               aspiration of that joint; or

(d)               surgery to that joint.”

Factual background to the application

11                  The applicant was born on 13 October 1948.  Prior to enlisting in the Army, he was employed as a carpenter in the building industry.  He was called up for National Service on 22 April 1970.  Between 18 March 1971 and 28 October 1971 he rendered “operational service”, as defined in s 6 of the VE Act, in Vietnam.  He served with 1 Field Squadron Royal Australian Engineers. 

12                  On 9 December 1971 he was discharged from the Army.  He returned to work as a self-employed carpenter and continued in that activity until December 1997.  During the intervening years he lodged a claim with the Commission in respect of a chest condition which he claimed had been war-caused.  In October 1982 that claim was rejected. 

13                  It was not until May 1996 that he lodged a further claim with the Commission.  On this occasion he sought benefits for a variety of conditions including post-traumatic stress disorder, alcohol dependence, a lung complaint, asthma, obesity, and osteoarthrosis to his left and right knees.  On 3 September 1996 the Commission allowed the applicant’s claims for post-traumatic stress disorder and alcohol dependence, with effect from 11 March 1996.  However, his claims in respect of asthma, obesity and osteoarthrosis were refused.  The Commission considered that these conditions were not war-caused.  It determined that the applicant should be granted a pension at 50% of the General Rate.  It is noteworthy that in rejecting the applicant’s claim for osteoarthrosis the Commission made no mention of the SoP concerning that condition. 

14                  The applicant subsequently sought review of the Commission’s decision in so far as it rejected his claims in respect of asthma, obesity and osteoarthrosis.  He also challenged the Commission’s assessment of the degree to which he had been affected by post-traumatic stress disorder, and its decision to grant him a pension at only 50% of the General Rate.

15                  On 25 August 1997, the Veterans’ Review Board affirmed the decisions under review in relation to obesity and osteoarthrosis.  The applicant did not pursue his claim in respect of asthma.  Nor did he press his challenge to the Commission’s assessment of his entitlement to a pension fixed at 50% of the General Rate.  In dealing with the applicant’s claim concerning osteoarthrosis, the Veterans’ Review Board applied the SoP which was constituted by Instrument No 71 of 1995.

16                  Subsequently the applicant sought further review of the decisions regarding his claims in respect of obesity and osteoarthrosis.  He brought a proceeding in the Veterans’ Appeals Division of the AAT challenging the refusal to accept his obesity and osteoarthrosis as war-caused.  He also claimed a Special Rate Pension. 

17                  As indicated earlier, the AAT affirmed in part the earlier decisions, holding that the applicant’s osteoarthritis (the name of the condition had by now been changed from osteoarthrosis) was not war-caused within the meaning of s 9 of the VE Act. 

The evidence before the AAT

18                  The applicant gave evidence before the AAT that during his service in Vietnam he operated as a sapper, carpenter and joiner.  He said that he worked as a field engineer in a “splinter team” which operated in conjunction with the infantry to defuse and destroy booby traps, land mines and unexploded bombs.  He said that he had also been responsible for the maintenance of machinery. 

19                  The applicant said that he had spent about 50% of his time in Vietnam on patrol with infantry units.  While on patrol he had been required to carry a pack which contained a change of clothing, food, ammunition, rifle, water and demolitions.  That pack had been so heavy that it would cause the applicant “buckle at the knees”.  The patrols would last anywhere between seven and ten days.  When the applicant was not on patrol his time was divided between general infantry duties, and service with armoured personnel carrier units, or tank units.

20                  The applicant said that while on patrol he had often been deployed by helicopter.  He said that he had been required, when so deployed, to leap a distance of several feet to the ground while wearing his pack.  This had caused jarring to his knees.  The applicant said he could also recall having jarred his knees when he had leapt to the ground from armoured personnel carriers or tanks.  He did not suggest, however, that he wore his pack on these occasions.

21                  It is important to note that the applicant did not suggest that any of the incidents involving jarring to his knees had stopped him from carrying out his duties while in Vietnam.  Nor did he suggest that any injury to his knees had required him to seek medical attention, or to report sick. 

22                  The applicant gave the following evidence concerning injury or trauma to his knees:

“All right. Well, now, do you recall on any occasions whilst you were on patrol or, indeed, at other times whilst you were in Vietnam, hurting your knees or either of your knees?  ---  Well, I recall several occasions, well two occasions particularly when we were jumping out of the helicopters I had jarred my knees. I’d also jarred my knees a couple of times, taken a bit of punishment a couple of times when I was ‑ when you were out, as I said, with the tanks and the APCs, in particular tanks more so, you were just jumping from the top of the tank down on the ground.  And I can recall, well a couple of occasions when I’d come out of the helicopter I’ve jarred my knees.  They were sore, I had trouble moving them and, because of the situation, you usually -  it wasn’t to the extent where I couldn’t move at all and I’ve just bandaged up my – I’ve had my - your own bandages that you carry on, I’ve usually just strapped up my knee to give it that bit of extra support, like you’re only one bloke out there and you’re on a combat patrol, like including can be getting killed.  You don’t know what - you don’t know what you’re going to run into so you’re not going to worry about a little - a knee jar or anything at the time.  You think: well, I’m out here for a job, so you ---

On those occasions - sorry, goon? ---  so you - I made the best of it.  The pain was there but it was something that you didn’t worry about greatly because there was too many other things to worry about than, like, your knee at the time.

And that was both knees? ---I’ve injured both.  I have jarred both knees at different times, but I haven’t done them both together at the same time, but I have jarred both knees on different occasions.

And can you recall on these occasions how long the pain had persisted ---

MR GREEN:  Well, that question presupposes that there was pain. My learned friend has built that into his own question.

MR MOORE:  I’ll rephrase the question.  Did the jarring cause you pain? --- Yes, the jarring did cause pain that’s why I had to bandage it just to save yourself, type of thing.

And can you recall on these occasions how long the pain would persist for? --- Usually probably, depending on the patrol and – you’re looking at 7 days, and depending on the amount of walking you were doing and what you were doing and what have you, but sometimes 7 days sometimes more, like, and it’d gradually probably disappear after a week, 10 days or that it just depends on your patrol itself and what you were doing.  If you were doing a lot of walking, well, the pain was there for a lot longer, type of thing.

And did it limit the way you walked? --- Only to the degree I walked with a bit of a limp, it was straight enough at the time, but it wasn’t as - like I said, the way I looked at life and the way I look at life and you were there for a job and after all that’s all I’ve been away for, and if you can get by you make do and get by, you’ll do - if it’s just a case of bandaging up your knee or something you’ll put up with the pain because, as I said, a damn site worse could happen to you while you’re out there, it’s -  apart from a knee joint, a jarred knee joint or something.

And do you recall ever reporting any of the incidents with your knees to either a doctor, a field doctor, or to anyone else? --- No, it’s not – it’s nothing that – I didn’t report. I probably should have, but it’s something I didn’t do.

Yes. All right. Now, Mr Cook, do you recall whether or not there was any swelling associated with the pain in your knees, is that something that you have any recollection of at this stage? --- I don’t really have any recollection of it, once I’d taped it up it usually was taped up for the full time, type of thing, you just left it, kept it - kept the support there so you could - so you could do your activities that were required of you. 

Yes. And apart from the packing with ‑ sorry, the taping, did you treat yourself with any medication or any other treatment? --- Not while I was outside, no.

Now, Mr Cook, did - was there any change in your drinking habits ---

MR HANDLEY: I’m sorry to interrupt. Can 1 just explore this issue of the taping up your knees and you said there was something about bandaging.  Was that your practice to bandage your knees after you had jarring episodes? --- Not, no not on a continual basis, no.

No, no, no. At all? What did you mean when you said you ---? --- Only - once I - no, the only time I bandaged it was if I’d injured - if I’d jarred it and I had a bit of pain there, I usually - I put the bandage on and it usually stopped there just to support the knee the whole time I was out there.

Yes? --- But I might have gone out, like come back into camp and gone out again, but I’m not saying that it’s happened every time.

No. But there were occasions where you did put a bandage on your knee or knees? --- Yes.”

23                  The applicant said that he first started having trouble with his knees in about 1991.  At this time he began having “twinges” of pain.  He said that he had developed major problems in about 1993, and that he had knee reconstruction surgery in 1997 or 1998.

24                  On 8 November 1971, the applicant was medically examined prior to his discharge from the Army.  He was required to complete a medical questionnaire which contained the following questions:

·                    Have you ever had or have you now - swollen or painful joints?

·                    Have you ever had or have you now any knee, back or joint injury?

The applicant answered no to both questions.

25                  In his claim for compensation dated 2 June 1996 reference was made to his complaint regarding disability in relation to both knees.  He was asked:

“How did service cause this disability?”

The applicant replied:

“I was inducted into the Army (NS) with a bow legged problem – this has caused great degeneration to my knees.”

26                  During the course of the hearing before the AAT an acknowledged expert in rheumatology, Dr ML Ingpen, gave evidence on behalf of the Commission.  In a report dated 14 September 1998 Dr Ingpen concluded that it would be “extremely difficult in a forensic sense” to determine whether the applicant’s symptoms, which had manifested many years after discharge, were caused by, or contributed to, his war service.  Dr Ingpen also commented that the nature of the applicant’s employment, as a carpenter in the building industry, meant that he would have been exposed to considerable risk of osteoarthritis of the knees.  In Dr Ingpen’s terms:

“In all of the research data in occupations hips and knees are very commonly an end point of the building industry, of being involved in the building industry for some time, yes.”

27                  Under cross-examination by counsel for the applicant, Dr Ingpen was prepared to agree that having regard to the applicant’s evidence of having been subjected to significant jarring to both knees, that jarring would be indicative of trauma.  He was also prepared to accept that, in general terms, there existed a reasonable hypothesis to connect osteoarthritis of both knees and operational service.  Significantly, however, Dr Ingpen was never, at any stage, asked to comment upon the SoP, and in particular whether the requirements set out therein had been met.

The reasoning of the AAT

28                  After summarising in considerable detail the background facts and the evidence given by the applicant, and various medical experts by whom he had been seen, the AAT set out its conclusions and its reasons for decision regarding the claim for osteoarthritis.  The AAT said:

“66.    With respect to the Applicant’s claim to connect osteoarthritis of both knees and service, we are satisfied that no reasonable hypothesis exists.

67.       Dr Ingpen, when pressed by Mr Moore, said that a reasonable hypothesis did exist. Unfortunately Dr Ingpen was not asked to comment upon the SoP.

68.       Mr Green’s submission at the conclusion of the hearing included a comprehensive medical history with respect to the Applicant’s knee injuries. It is noted that the first diagnosis of osteoarthritis was made almost 24 years after discharge from service. In the interim, Mr Cook was self-employed as a builder, an occupation which Dr Ingpen said had a strong association with osteoarthritis of the knees. We also note there is no reference in the Applicant’s discharge medical papers to pain in or injury of his knees and there is no evidence of any incapacity or inability to perform his duties in Vietnam.

69.       We are not satisfied that the SoP has been met, nor particularly that the definition of “trauma to a joint” has been satisfied. There is evidence of the Applicant suffering jarring of his knee and associated pain. There is also evidence that on occasions he bandaged his knees. He described his pack as being so heavy that he would “buckle at the knees” and also spoke of occasions where he jumped from helicopters over distances of about 3 feet whilst wearing his pack.

70.       We heard no evidence of the pain in the Applicant’s knees during service to be within the criteria contemplated by the definition of “trauma to the joint”. We had no evidence of tenderness or altered mobility or range of movement of the knees. Whilst the Applicant did speak of pain and swelling there is no evidence that these symptoms lasted for a period of at least 7 days.

71.       In Repatriation Commission v Deledio [(1998) 83 FCR 82] the Full Federal Court concluded by summarising “the course” which this Tribunal is to take in applications lodged after the 1994 amendments to the Veterans’ Entitlements legislation. These are sometimes known as the “Deledio principles” and are found at page[s] [97-98] of the decision.

72.             Having regard to those principles, we are satisfied:

i.                    a hypothesis does exist with respect to service and subsequent osteoarthritis of the Applicant’s knees yet for the purposes of this principle we are not required to make any finding of fact;

ii.                  there is in force a SoP determined by the RMA pursuant to Section 196D of the Act (refer earlier in this decision);

iii.     having regard to our above findings of fact, we are not satisfied that the hypothesis fits within the “template” found in the SoP.  In those circumstances, the hypothesis is not reasonable.

73.       Insofar as the Applicant also sought Special Rate Pension and upon the basis that the medical evidence pointed to an inability to earn remunerative income, in part because of the Applicant’s knee injuries, it follows that the Applicant could not satisfy the “alone” test within the meaning of Section 24 of the Act. In these circumstances there is no entitlement to Special Rate Pension.

74.       It follows that the decision of the VRB under review insofar as it concerns the Applicant’s left and right knees, should be affirmed.”

29                  It is clear from these reasons that the AAT was not satisfied that the hypothesis which existed, as to the connection between operational service and subsequent osteoarthritis of the applicant’s knees, was reasonable.  The definition of “trauma to a joint” was not satisfied.  The hypothesis did not, therefore, fit within the template of the SoP.

30                  The AAT accepted that there was evidence of the applicant having suffered jarring of his knees and associated pain.  The AAT accepted also that there was evidence of his having bandaged his knees.  The AAT found, however, that there was no evidence that the pain which the applicant had felt in his knees during his period of service fell within the criteria contemplated by the definition of “trauma to a joint” in the SoP.  In particular there was no evidence of:

·                    tenderness;

·                    altered mobility;

·                    altered range of movement of the knees; or

·                    pain and swelling the symptoms of which lasted for a period of at least 7 days. 

31                  In arriving at its decision, the AAT plainly purported to apply the decision of the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.  In so doing, it found that the applicant had established that an hypothesis existed with respect to service and subsequent osteoarthritis of his knees, and also that there was in force an SoP determined by the Authority.  However, the AAT was not satisfied that the hypothesis fit within the “template” found in the SoP.  In those circumstances, the AAT concluded that the hypothesis was not reasonable.

The applicant’s contentions

Was the Correct Statement of Principles applied?

32                  The applicant submitted that the AAT had erred in law by applying the wrong SoP when considering the applicant’s claim.  The AAT applied the definition of “trauma to a joint” which had been introduced by Instrument No 41 of 1998 (or possibly the amended version of that definition introduced by Instrument No 19 of 1999).  The AAT had not applied the definition of “trauma to the relevant joint” introduced by Instrument No 352 of 1995, as it should have done. 

33                  In the light of the judgments of Heerey J in Keeley v Repatriation Commission (1999) 30 AAR 48, and of the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108, it is clear that the AAT did not apply the correct SoP when considering the applicant’s claim.  This was all but conceded by the respondent in the proceeding before me.  The AAT should have applied the SoP which was in force at the time the Commission made its decision in September 1996.  That SoP was that contained in Instrument No 352 of 1995. 

34                  Although the respondent formally submitted that the decision of the Full Court in Keeley was erroneous, and informed me that an application for special leave to appeal against that decision was to be heard in the near future by the High Court, the respondent accepted that I was bound to follow that decision.  On 28 November 2000, after this application was argued before me, the High Court refused special leave.  It follows that I proceed upon the assumption that the AAT erred in applying the wrong SoP when considering the applicant’s claim. 

35                  The respondent submitted that this error on the part of the AAT should not be characterised as an error of law, and should not therefore give rise to a right of appeal to this Court under s 44(1) of the AAT Act.  However, that submission was predicated upon the contention that had the AAT applied the correct SoP, there would have been no difference in the outcome of the proceeding before it.  It was not predicated upon any contention that an error of this type is incapable of being characterised as an error of law.

36                  I can understand the respondent’s submission that such error as was made was properly to be characterised as “harmless error”.  I can also understand the respondent’s submission that it would be futile to remit this matter to the AAT for reconsideration in accordance with the correct SoP because there would be no difference in the outcome were such reconsideration to occur.  It is difficult, however, to understand how it can be suggested that when the AAT applied the wrong SoP it did not err in law.  It plainly did.  Whether that error entitles the applicant to the relief which he seeks is an entirely different question.

37                  I accept the respondent’s submission that there is no difference of any consequence between the SoP which the AAT applied, and that which it should have applied.  If anything, the SoP which should have been applied would have created a greater hurdle for the applicant to overcome than the SoP which was applied.  The SoP which should have been applied includes as a factor which must be present the existence of “swelling” (and possibly “acute symptoms and signs of … swelling”).  That factor is not, however, required under the SoP which was applied.  It is important to note that the applicant gave evidence before the AAT that he had no real recollection of any swelling (let alone any acute symptoms and signs of swelling).  It follows that had the correct SoP been applied, the applicant would have failed to bring his case within the template.  It also follows that the error of law which has been established does not give rise to any entitlement on the part of the applicant to the relief which is sought.

Application of the VE Act

38                  The applicant argued his case on several alternative bases.  He submitted that the AAT had erred in law in its application of ss 9, 119, 120 and 120A of the VE Act, and that it had failed to apply these provisions properly when determining whether, on the material before it, the hypothesis raised was a reasonable one.

39                  The applicant submitted that, having determined that the material before it pointed to an hypothesis which connected the injury with the circumstances of the particular service rendered by the applicant, and having ascertained that there was in force an SoP determined by the Authority, the AAT was required to form an opinion as to whether that hypothesis was a reasonable one.  It was required to form that opinion “if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP” – Deledio (supra) at 97 per Beaumont, Hill and O’Connor JJ. 

40                  The applicant submitted that in determining whether the hypothesis contained the factors which the Authority had determined to be the minimum which must exist, and be related to the person’s service, the AAT had been required to approach the matter cognisant of the beneficial or remedial nature of the VE Act.  It had been required to make due allowance for any difficulties that might lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effect of the passage of time, or the absence of or a deficiency in relevant official records – see s 119(1)(h).  It was submitted that the AAT had failed to comply with its obligations in this regard. 

41                  In addition, it was submitted that the AAT had misconceived the interrelationship between the factors identified in the SoP, and the operation of ss 120(1) and 120(3) of the VE Act.  It was submitted that the effect of these provisions was that the AAT was required to be satisfied beyond reasonable doubt that one or more of the factors set out in the SoP which had been required to exist, did not exist, and that the AAT had failed to appreciate that this was what the legislation, as distinct from the SoP, required.  It was submitted that the AAT had failed properly to apply the principles laid down by the Full Court in Deledio in this regard, and that it had adopted erroneous principles in ascertaining whether a reasonable hypothesis existed.

Adequacy of reasons provided by AAT

42                  Finally, it was submitted that the AAT had failed to provide adequate and sufficient reasons for its decision.  It was said, in particular, that the AAT had failed to refer to s 119 of the VE Act, and that it had not addressed with any precision the particular factors set out in the SoP or its findings in relation to those factors.

The respondent’s contentions

Application of the VE Act

43                  The respondent submitted that the AAT made no error in its application of ss 9, 119, 120 or 120A of the VE Act.  The claim before the AAT in respect of osteoarthritis had failed because the AAT found that no reasonable hypothesis existed.  That finding was reached because the material before the AAT did not fall within the template set out in the SoP.  As a result the hypothesis which existed was deemed not to be “reasonable”.  Because no reasonable hypothesis was established, there was no occasion to consider whether, pursuant to s 120(1) of the VE Act,the AAT was satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury.  In other words, it did not become necessary for the AAT to find facts from the material before it. 

44                  The respondent submitted that the course taken by the AAT accorded precisely with that required by the Full Court in Deledio at 97-8 per Beaumont, Hill and O’Connor JJ.  Their Honours formulated the relevant principles as follows:

“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 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 not so satisfied, the claim must succeed.  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 doing so, no question of onus of proof or the application of any presumption will be involved.”

45                  The respondent referred in particular to par 72 of the AAT’s reasons for decision.  The respondent submitted that a fair reading of those reasons disclosed:

1.                  The Tribunal considered on all the material before it that the applicant suffered from osteoarthritis of both knees and that a hypothesis connecting the injury with the service existed (stage 1 of Deledio).

2.                  The Tribunal ascertained that there was in force an SoP determined by the RMA under s 196B(2) (stage 2 of Deledio).

3.                  The Tribunal formed an opinion that the hypothesis was not a reasonable one because it did not fit the template.  In other words, the hypothesis was not upheld by the relevant SoP.  Therefore the applicant’s claim failed (stage 3 of Deledio).

46                  The respondent submitted that, in accordance with the reasoning of the Full Court in Deledio, it was not necessary for the AAT to proceed to stage 4.

47                  The respondent submitted that it had been open to the AAT to form the opinion that the applicant did not fit the template required by the SoP in circumstances where he did not give evidence of, and there was no material to suggest that he had suffered from:

·                    acute symptoms and signs of pain;

·                    acute symptoms and signs of swelling (as required by Instrument No 352 of 1995);

·                    acute symptoms and signs of tenderness; and

·                    acute symptoms and signs of altered mobility or range of movement of the joint;

and that such acute symptoms and signs lasted for a period of at least a week following the injury.

48                  The respondent referred to and relied upon the decision of Finn J in Harris v Repatriation Commission (2000) 31 AAR 270 in support of the submission that the SoP required that the expression “acute symptoms and signs” modified not merely the noun “pain” but also the conditions which followed, viz swelling, tenderness, and altered mobility or range of movement of the joint.  The SoP also required that such acute symptoms and signs lasted for a period of at least a week following the injury.

49                  In Harris Finn J was required to construe an SoP which was not significantly different from that presently the subject of consideration.  His Honour observed at 280-281:

“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 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 construction in he 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.

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 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.

What is notable about both the Tribunal’s decision and the applicant’s argument before me is that they focused 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.”

50                  His Honour’s reasoning in Harris was followed by Sundberg J in Arnott v Repatriation Commission [2000] FCA 1336, and also by me in Mason v Repatriation Commission  [2000] FCA 1409.  The respondent submitted that Harris was correctly decided, and that it disposed of the point sought to be made by the applicant that the evidence which he relied upon before the AAT was within the template contained in the relevant SoP.  The applicant submitted that Harris was plainly incorrect, and that it should not be followed. 

51                  After argument had concluded in the present proceeding, the applicant’s submission on this point became moot. On 24 November 2000 a Full Court comprising Whitlam, Sackville and Mansfield JJ dismissed an appeal against the judgment of Finn J – Harris v Repatriation Commission [2000] FCA 1687.  In a joint judgment their Honours observed:

“49.     The appellant criticised the primary Judge’s interpretation of the definition as imposing on the language of SoP No 105 of 1995 an impermissible strain which, so it was argued, could not have been intended by the Authority. The appellant restated the thrust of his submissions to the primary Judge as recorded by his Honour in the passage set out at [32] above, but added a contention that any ambiguity in the definition should be resolved in his favour. The appellant conceded that the definition should be read as if the preposition “of” governed the noun “tenderness”. He contended, however, that “altered mobility or range of movement” was in effect a separate requirement of the definition for which no symptoms and signs were necessary.

50.       For its part, the Commission relied on the primary Judge’s construction, which has since been adopted in two judgments at first instance. In Arnott v Repatriation Commission [2000] FCA 1336, Sundberg J followed a similar approach to that of the primary Judge. In Mason v Repatriation Commission [2000] FCA 1409, Weinberg J said that an interpretation of the definition by the AAT, consistent with the approach of the primary Judge in the present case, was correct.

51.       In our view, the construction adopted by the primary Judge accords with the ordinary meaning of the words in the definition. It was not necessary for the drafter of the definition to repeat the preposition “of” before “tenderness” and “altered mobility” in order to arrive at the meaning conveyed by the ordinary rules of grammar to which his Honour gave effect. No doubt some might have inserted a so-called “Oxford” comma after the word “tenderness”, but its absence is immaterial. The primary Judge’s construction is supported by the reference in the same sentence to “such acute symptoms and signs” lasting for a period of a week after the injury. The natural reading of that reference is that the acute symptoms and signs of pain, tenderness and altered mobility must have lasted for at least a week.

52.       The expression “acute symptoms and signs of” can readily be applied to the concept of “altered mobility or range of movement”. The dictionary definitions show that the expression requires that there be an indication of, or phenomenon evidencing altered mobility or range of movement. Bearing in mind that the SoP was concerned with “medical-scientific evidence” (s 196B(2)), the primary Judge’s conclusion is reinforced by medical definitions. Butterworths Medical Dictionary (2^nd ed, 1978), for example, contains the following definitions:

“Symptom The consciousness of a disturbance in a bodily function; the subjective feeling that there is something wrong in the working of the body and of which the patient complains, e.g. shortness of breath, pain, fatigue, palpitation, etc. The symptom may or may not be accompanied by observable signs.

Sign Objective evidence of disease or deformity.

Objective symptom A symptom accompanied by signs from which the existence of the symptom can be deduced.

Subjective symptom One appreciated by the patient only; all symptoms are, strictly speaking, subjective.

Objective sign A sign that is appreciable to the examiner’s senses.

Subjective sign A symptom appreciable only by the patient.”

53.       Once regard is had to these uncontroversial medical usages, it is apparent that the definition in SoP No 105 of 1995 required objective evidence of altered mobility or range of movement, such alteration lasting for a period of at least a week. Ordinarily, of course, the objective evidence would be accompanied by symptoms appreciated by the patient. This supports what his Honour described as the “balance” between the two clauses, the first of which required the “development” of what, for practical purposes, are objective symptoms “within 24 hours”, and the second of which required that they “last for a period of at least one week immediately after the injury occurs”. In our opinion, the requirement that symptoms, once developed, endure for a minimum period (in the absence of medical intervention) was intended to extend to “altered mobility or range of movement”. It is unlikely that the provision relating to medical intervention was intended to apply only to cases of altered mobility or range of movement where intervention occurred within 24 hours. That, however, would be the consequence of the appellant’s construction of the definition.”

52                  It goes without saying that I am bound to follow the decision of the Full Court.  I should indicate, however, that I regard the decision of Finn J in Harris as correct, and I would have followed his Honour’s reasoning in any event.

53                  The respondent submitted that the AAT had been entitled to take into account the fact that the first diagnosis of osteoarthritis was made almost twenty-four years after the applicant had been discharged from service.  During the interim period, he had been self-employed as a builder.  This was an occupation which Dr Ingpen stated had a strong association with osteoarthritis in the knees.  There was no reference in the applicant’s discharge papers to his having sustained any pain in, or injury to, his knees.  There was no evidence before the AAT of any incapacity on his part to perform his duties while serving in Vietnam.  There was nothing to suggest “acute symptoms and signs” of swelling, tenderness, or altered mobility or range of movement of the joint.  Although the applicant said that after he jarred his knees he “walked with a bit of a limp” this was said to fall far short of meeting the criteria contemplated by the definition of “trauma to the joint”.

54                  The respondent submitted that to the extent that the applicant sought to rely on s 119(1) of the VE Act to allow an inference to be drawn that he did suffer a “trauma to the relevant joint” within the definition of that term in the SoP, the subsection did not enable such an inference to be drawn.  The respondent submitted that it is not the function of s 119(1) to fill gaps in the evidence.  That subsection may not be used to invent evidence which may serve to establish the necessary connection between an injury and war service – Mason v Repatriation Commission (supra) at pars 75-6. 

55                  In summary, the respondent submitted that the material before the AAT could not conceivably enable a finding to be made that the applicant fitted within the template of the SoP.  He recalled no swelling at all, and he gave no evidence of any tenderness.  His description of the pain which he suffered could hardly be said to meet the adjective “acute”.  Had the applicant suffered these symptoms and signs at the time of the injury, had they been “acute”, and had they persisted for at least a week thereafter, one might have expected him to recall some of these matters.  The fact was that he did not. 

Adequacy of reasons provided by AAT

56                  Turning to the applicant’s third ground of appeal, the respondent submitted that s 43(2B) of the AAT Act requires the AAT to include in its reasons its findings on material questions of fact and to refer to the evidence, or other material, on which those findings were based.  The respondent submitted that on a fair examination of the AAT’s reasons for decision, it was plain that it had discharged its duty under that subsection.  It found material pointing to an hypothesis connecting the injury to the applicant’s knees with operational service.  It then dealt with whether that hypothesis was reasonable.  It concluded that the applicant did not fit the template set out in the SoP, and it set out its reasons for arriving at that conclusion.

57                  The respondent submitted, as is undoubtedly the case, that the AAT’s reasons for decision should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which those reasons are expressed – Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

Conclusions

58                  In my opinion no error of law on the part of the AAT, apart from its failure to apply the correct SoP, is disclosed.  That single error of law does not lead to the conclusion that the appeal should be allowed.  To remit this matter to the AAT for rehearing would be futile.  The difference between the wording of the two SoPs is of no practical consequence in the particular circumstances of this case.  Had the AAT applied the correct SoP, it would have inevitably concluded that the only hypothesis available to the applicant was not consistent with the requirements of that SoP.  The applicant’s claim therefore would have failed in any event by reason of s 120(3) of the VE Act. 

59                  In these circumstances I propose to apply the principle that if the Court hearing an appeal under s 44(1) of the AAT Act finds an error of law 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 – Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-562 per Sackville J; and Harris v Repatriation Commission [2000] FCA 1687 at pars 7 and 38. 

60                  The appeal must be dismissed, with costs.

Associate:

Dated: