FEDERAL COURT OF AUSTRALIA

Saltmarsh v Repatriation Commission [2018] FCA 28

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    That part of the Tribunal’s decision that found that the Applicant’s spondylolisthesis L5/S1 is not a war-caused disease be set aside and remitted to the Tribunal, differently constituted, for determination according to law.

3.    The Respondent pay the Applicant’s costs.

4.    If either party seeks a different costs order it has liberty to apply in that regard, within seven days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    The applicant, John Saltmarsh, served in the Australian Army from 19 June 1968 to 20 July 1971, including by rendering operational service from 3 September 1969 to 10 September 1970 during the war in Vietnam. On 29 July 2013 he lodged a claim for a pension and medical treatment under the Veterans’ Entitlements Act 1986 (Cth) (the Veterans Act) in respect to incapacity from a claimed war-caused back injury or disease. On 15 August 2013 a delegate of the respondent, the Repatriation Commission (the Commission), refused his claim. On 12 February 2015 the Veterans’ Review Board affirmed the decision. Mr Saltmarsh then applied for review by the Administrative Appeals Tribunal (the Tribunal).

2    On 24 March 2016 the Tribunal set aside the Commission’s decision and substituted a decision that Mr Saltmarsh is suffering from:

(a)    lumbar spondylosis which is a war-caused disease; and

(b)    spondylolisthesis L5/S1 and spondylolysis which are not war caused diseases,

(Saltmarsh v Repatriation Commission [2016] AATA 178). Mr Saltmarsh appeals to the Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), against that part of the Tribunal’s decision that determined that his spondylolisthesis L5/S1 is not war-caused.

3    The appeal centrally concerns whether the Tribunal fell into error by failing to address the hypothesis Mr Saltmarsh advanced connecting his spondylolisthesis L5/S1 with his operational service. For the reasons I explain I am satisfied that the Tribunal incorrectly identified the hypothesis Mr Saltmarsh advanced and as a result failed to address it. The Tribunal did not undertake its statutory task under s 120(3) as affected by s 120A(3) of the Veterans Act. The appeal must be allowed and the decision remitted to the Tribunal, differently constituted, for determination according to law.

THE FACTUAL BACKGROUND

4    Mr Saltmarsh was born on 17 May 1950. Shortly before Christmas 1969, while serving in Vietnam, he was on patrol as a Centurion tank driver. As he was climbing out of the driver’s compartment, the gunner moved the tank’s gun and it struck his lower back forcefully and knocked him from the tank to the ground. Mr Saltmarsh’s evidence was that the gun turret traverses “very, very fast” and that there is a lot of weight in the gun barrel and breech. He described the force with which the gun struck him as “very high”. He suffered severe low back pain and he was in and out of consciousness. He woke up in a hospital bed having been medically evacuated by helicopter to Nui Dat base, but he has no memory of that trip.

5    In an undated statement filed with the Tribunal Mr Saltmarsh said that he was off duty for about two weeks after he was medically evacuated to Nui Dat and he expanded upon that in his oral evidence. The Tribunal found (at [75]) that after Mr Saltmarsh was checked by a doctor at Nui Dat base he was sent to a tent on the base where he was largely confined for about four or five weeks, and that half way through January 1970 he was assigned to Special Headquarters. The Tribunal found that, at around Christmas time, Mr Saltmarsh painted a sign for Special Headquarters and, once he “came good”, he helped rebuild a school and did sentry duties. Mr Saltmarsh gave evidence that, about two weeks after a disciplinary incident in which he was involved on 14 February 1970, he was transferred from Special Headquarters to 1 Troop and he resumed his duties as a tank driver. It is uncontentious that Mr Saltmarsh resumed duties as a tank driver but the date he did so is not completely clear.

6    The evidence which Mr Saltmarsh gave which is relevant to the narrow issue in the appeal is brief. He said that upon his resumption of duties as a tank driver:

(a)    he was required to service the tank which he found a bit hard, including that it was “very hard” to lift the transmission covers, but that one of the tank gunners, Colin Milner, “helped out a few times”;

(b)    he found that he needed Mr Milner’s help because he did not have the strength to lift the transmission covers and it caused him pain;

(c)    he also had difficulties adjusting the tank tracks, which required taking pins out of the tracks and using a sledge hammer. He found that job very hard and he did not have the strength to swing the sledge hammer; and

(d)    after he returned to normal duties he had ongoing problems with his back, which continued after his discharge from the Army.

His evidence was not completely clear as to how much of the heavy work associated with the role of tank driver he personally undertook upon his return to duty, and how much of it was undertaken by Mr Milner or other members of the tank crew.

7    In an undated statement Mr Milner said that in early 1970 he became a crew member on Mr Saltmarsh’s tank. He stated:

After I became a member of John’s crew he asked me to help him out with some of his duties because of his back pain. As the driver, John was responsible for routine maintenance of our tank and this included tightening and maintaining its tracks and cleaning oil filters. In order to undertake these kinds of activities it was necessary to lift the engine covers which were heavy. He asked me to help him lift the engine covers. The pins to the links of the tank tracks needed to be replaced from time to time and in order to do so it was necessary to use a sledge hammer. John told me that he was not able to swing the sledge hammer as a result of his back pain and I accordingly undertook that task for him. Additionally, he told me that he was unable to bend and reach inside the engine to remove the oil filters because of his back problems and I also performed that task for him.

8    In his oral evidence Mr Milner said that:

(a)    it was the tank driver’s responsibility to check on the maintenance of the tank, but it was usual for other members of the crew to assist the driver when he needed it;

(b)    sometimes Mr Saltmarsh was able to perform his duties quite well, but most of the time he needed help with the heavier parts of general maintenance;

(c)    Mr Saltmarsh complained that when he was using the sledge hammer he suffered bad back pain;

(d)    to lift the engine covers you need two people;

(e)    the transmission covers are different to the engine covers. They are on a hinge but they are extremely heavy. Normally you need two people to lift them;

(f)    it was part of the tank driver’s normal tasks to lift the engine covers and to do the sledge hammering, but Mr Milner took his place doing the lifting and using the sledge hammer.

He was not completely clear in his evidence as to whether he undertook all of the heavy work associated with the tank driver role, or whether he only undertook it when Mr Saltmarsh requested assistance because of his back pain.

The medical evidence

9    An orthopaedic surgeon, Mr Russell Miller, who was one of Mr Saltmarsh’s treating doctors, provided a report dated 24 April 2000. It stated:

Mr Saltmarsh has a problem with his lumbar spine. He has a spondylolisthesis at the L5/S1 level with a pars defects. It is likely this is developmental in origin although there is a possibility that it was traumatic.

…

It is likely, in my view, that this man had a developmental spondylolitic spondylolisthesis and it is likely this was rendered symptomatic by the event in the Army outlined above. I note he had no symptoms prior to that. It is likely that the accident in 1969 precipitated symptoms in relation to what was a pre-existing, but asymptomatic spondylolitic spondylolisthesis. According to his history, he had no symptoms prior to that and he has had at least some ongoing symptoms following that event. It is also likely that the other work events have contributed to the evolution of his back condition.

In summary therefore, I believe that the Army accident in 1969 precipitated symptoms in relation to a pre-existing problem and the other two accidents aggravated that pre-existing problem.

10    Associate Professor Bruce Love, consultant orthopaedic surgeon, provided a report dated 14 July 2015. It stated:

I am of the view that this man’s current observed condition is a consequence of the incident which occurred when he was 19 years of age and was crushed when emerging from the gun turret. It is quite possible that the lytic lesion that can now be observed in the pars interarticularis was present at that time but there is no evidence of this. I do conclude however that the force that he described could easily have caused the condition itself or caused an aggravation of the condition but there is no way of knowing which of these two events were the more probable.

I therefore conclude that this man has a combination of spondylolisthesis and spondylosis at the lumbosacral level of the lumbar spine and I conclude that these findings are a consequence of the incident described when he was a tank driver at 19 years of age.

11    In his oral testimony Associate Professor Love said:

(a)    the rest and light duties that Mr Saltmarsh was provided in the aftermath of the incident was “beneficial and appropriate”;

(b)    Mr Saltmarsh suffered from acute traumatic spondylolisthesis as a result of severe high-energy trauma to the spine (which met the definition in the SoP);

(c)    that the loss of feeling in his legs Mr Saltmarsh said he suffered after the tank incident constituted a “neurological manifestation”;

(d)    he expected Mr Saltmarsh to have been provided medical advice “with regards to avoidance of actions that might provoke worsening of the condition, both in terms of worsening from a radiological point of view, and worsening from a symptom point of view.” Such advice would include “avoidance of heavy lifting with a restriction of a weight that should be considered a maximum, and activities such as repeated bending and stooping, or working in awkward postures.”

(e)    it was not appropriate clinical management of Mr Saltmarsh’s condition to return him to duties involving heavy lifting and using a sledge hammer, if undertaking such work gave him pain such that he requested assistance from his colleagues;

(f)    it was not appropriate clinical management to return Mr Saltmarsh to such duties in circumstances when he was still having pain and difficulty performing those duties;

(g)    it was more likely than not that the performance of such duties affected Mr Saltmarsh’s spondylolisthesis “in that it contributed to the maintenance or the clinical course of that condition”. Associate Professor Love said that was so because “continuously loading an abnormal part of a skeleton is a recognised cause of aggravation of that condition”; and

(h)    while it was appropriate treatment that Mr Saltmarsh was initially provided with a period of rest, if he still suffered significant back symptoms it was inappropriate treatment to then return him to heavy physical duties. If Mr Saltmarsh was unable to fully carry out those duties which involved heavy lifting and using a sledge hammer, and he had to ask workmates for help, that indicated that he was having significant symptoms.

THE LEGISLATIVE FRAMEWORK

12    Section 13(1) of the Veterans Act provides that the Commonwealth is liable to pay a pension to a veteran who is incapacitated by a war-caused injury or war-caused disease.

13    The circumstances in which an injury or disease is taken to be war-caused are set out in s 9(1) of the Veterans Act. They include where the injury or disease arose out of or was attributed to any eligible war service (which includes operational service) rendered by the veteran: s 9(1)(b) and s 7(1)(a). It is uncontentious that Mr Saltmarsh rendered operational service from 3 September 1969 to 10 September 1970.

14    Where a claim is related to operational service, the standard of proof to be applied to the question of whether the injury or disease is war-caused is prescribed by ss 120(1) and (3) of the Veterans Act. Those sections provide:

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.

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, 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;

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

(c)    that the death was war-caused or defence-caused;

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.

Note: This subsection is affection by section 120A.

…

15    Section 120(3) is affected by s 120A in cases where a Statement of Principles (SoP) which corresponds to the claimed injury or disease is in force. Section 120(A) relevantly provides:

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);

…

that upholds the hypothesis.

…

16    Section 196B(2) of the Veterans Act relevantly provides:

If the [Repatriation Medical] 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.

The relevant Statement of Principles

17    There are two Statements of Principles which are relevant. Statement of Principles concerning spondylolisthesis and spondylolysis No 5 of 2006 (SoP 5 of 2006), which was in force at the time of the delegate’s decision. That was repealed and replaced by Statement of Principles concerning spondylolisthesis and spondylolysis No 59 of 2015 (SoP 59 of 2015) which was in force at the time of the Tribunal’s decision.

18    It is common ground that the Tribunal was required to apply SoP 59 of 2015 and, if that did not uphold a reasonable hypothesis, the Tribunal was then required to apply SoP 5 of 2006: Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194 at [64]-[65] (Allsop J, as his Honour then was). Nothing turns on which of the two SoPs is applied because, except for clause numbering, there is no relevant difference between them. For convenience I will refer to SoP 59 of 2015 as “the SoP”.

19    Clause 3(b) of the SoP defines spondylolisthesis and spondylolysis as follows:

“spondylolisthesis” means forward displacement of one vertebra over another; and

“spondylolysis” means a defect or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra. The pars interarticularis is that part of the vertebral arch that extends beyond the superior and inferior articular processes.

20    Clauses 5, 6 and 7 of the SoP provide:

Factors that must be related to service

5    Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6    The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting spondylolisthesis or spondylolysis or death from spondylolisthesis or spondylolysis with the circumstances of a person’s relevant service is:

…

(n)    inability to obtain appropriate clinical management for spondylolisthesis or spondylolysis in the presence of the following:

(i)    acute traumatic spondylolisthesis or spondylolysis;

(ii)    neurological manifestations; or

(iii)    severe progressive symptoms warranting surgical intervention.

Factors that apply only to material contribution or aggravation

7.    Paragraphs 6(j) to 6(n) apply only to material contribution to, or aggravation of, spondylolisthesis or spondylolysis where the person’s spondylolisthesis or spondylolysis was suffered or contracted before or during (but not arising out of) the person’s relevant service.

21    Clause 9 of the SoP defines “acute traumatic spondylolisthesis or spondylolysis” to mean “spondylolisthesis or spondylolysis arising as a direct result of a severe, high energy trauma to the spine”.

The operation of section 120(3) as affected by section 120A(3)

22    The proper approach to the operation of s 120(3), as affected by s 120A(3) is well-established. The four step process laid down by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391 (Deledio) at 97-98 has been applied in numerous single judge and appellate decisions. It provides:

(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 (II)…

(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 so doing, no question of onus of proof or the application of any presumption will be involved.

23    This four step process should not though be substituted for the statutory test and it is not to be applied mechanically: Hill v Repatriation Commission (2005) 218 ALR 251; [2005] FCAFC 23 (Hill) at [80] and [85] (Wilcox, French and Weinberg JJ).

24    In Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; [2007] FCAFC 111 (Collins) at [48], Allsop J as his Honour then was, with whom Lindgren and Emmett JJ agreed, usefully set out the following settled principles:

(a)    The Tribunal must consider the whole of the material before it:  s 120(3).

(b)    The Tribunal is to form an opinion whether the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of service:  s 120(3).

(c)    The formation of that opinion involves consideration as to whether a relevant SoP upholds the hypothesis:  s 120A(3).

(d)    At the stage of formation of the opinion in (b), involving the consideration in (c), no question of fact finding arises:  Deledio 83 FCR at 97.

(e)    The formation of the opinion involves the reaching of a factual conclusion:  Bull 188 ALR at 760-62 [17] to [25] and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material:  Bull 188 ALR at 761 [22].

25    There is no disagreement between the parties as to the relevant principles.

The Appeal

26    The Amended Notice of Appeal sets out three grounds of appeal, as follows:

1    The Tribunal failed to accord procedural fairness to the applicant by failing to respond to a substantial, clearly articulated argument that the material before it raised a reasonable hypothesis connecting his spondylolisthesis with the circumstances of his operational service, that hypothesis being that the applicant had an inability to obtain appropriate clinical management for spondylolisthesis or spondylolysis in the presence of the following:

(i)    acute traumatic spondylolisthesis; or

(ii)    neurological manifestations,

within the meaning of clause 6(n) of Statement of Principles No 59 of 2015 and clause 6(k) of Statement of Principles No 5 of 2006 as a result of the time at which, and/or the circumstances in which, the applicant was returned to his pre-injury duties as a tank driver.

2    The Tribunal failed to provide adequate reasons for its decision.

3    In concluding that there was “nothing else in the material” that pointed to a material contribution to, or aggravation of, the applicant’s spondylolisthesis apart from the incident when he was hit by the gun of a Centurion tank, the Tribunal erred in misconceiving and/or misunderstanding its task in applying s 120(3) of the Act by failing to consider the whole of the material before it and/or embarking on fact-finding.

GROUND 1 - FAILURE TO ADDRESS THE HYPOTHESIS ADVANCED BY THE APPLICANT

27    In this ground of appeal Ms Spencer, counsel for Mr Saltmarsh, submitted that Mr Saltmarsh advanced a hypothesis to the Tribunal which connected his spondylolisthesis with his operational service, which was consistent with the template in factor 6(n) of the SoP, and was therefore a ‘reasonable’ hypothesis. Counsel contended that Mr Saltmarsh put forward the hypothesis that he had an inability to obtain appropriate clinical management for his spondylolisthesis, in the presence of either acute traumatic spondylolisthesis or neurological manifestations, as a result of the time when and/or the circumstances in which he was returned to his pre-injury duties as a tank driver. Counsel also submitted that, irrespective of whether Mr Saltmarsh advanced that hypothesis, the material before the Tribunal pointed to or raised it. Counsel contended that the Tribunal failed to consider the hypothesis.

The Commission’s contentions

28    Ms Dowsett, counsel for the Commission, contended that the Tribunal did consider the hypothesis Mr Saltmarsh advanced but it was not satisfied that the hypothesis was consistent with the requirements of factor 6(n) of the SoP, as qualified by cl 7. The Commission contended that the Tribunal:

(a)    set out the hypothesis Mr Saltmarsh advanced, at least in general terms (at [53]);

(b)    identified the factors in the SoP upon which Mr Saltmarsh relied to connect his spondylolisthesis to his war service (at [58]);

(c)    noted that factor 6(n) of the SoP is limited by cl 7 (at [59]);

(d)    considered the hypothesis that Mr Saltmarsh’s spondylolisthesis was connected to his service by factor 6(n) of the SoP (at [73]-[83]); and

(e)    addressed the corresponding factor in the earlier SoP (at [90]), by reference back to its reasons at [73]-[83].

29    The Commission relied on Repatriation Commission v Money (2009) 173 FCR 410; [2009] FCAFC 11 (Money) (Finn, Dowsett and Edmonds JJ) in which the Court considered the meaning of the expression “inability to obtain appropriate clinical management” in a SoP regarding idiopathic fibrosing alveolitis. Clauses 6(n) and 7 in the present SoP are analogous to the clauses considered in Money.

30    In Money, Finn and Edmonds JJ held:

(a)    (at [43]), that the expression “appropriate clinical management” goes beyond positive treatment of an injury or disease and includes advice that could be given to a patient such as to desist from certain activities or to take other steps as measures to preclude aggravation or exacerbation of an injury or disease;

(b)    (at [42] and [59]), that the inability to obtain appropriate clinical management must occasion the material contribution to, or aggravation of the injury or disease. That is, before an “inability to obtain appropriate clinical management” would qualify as a factor connecting idiopathic fibrosing alveolitis to a veteran’s service it had to be shown to have contributed in a material degree to, or aggravated, that injury or disease.

31    Dowsett J reached a similar conclusion (at [87] and [95]). His Honour said that the logical starting point is identification of the connection between the injury or disease and the veteran’s service, which must have a factual basis demonstrated in the material. It is insufficient to identify the connection as simply an "inability to obtain appropriate clinical management” because, as his Honour said (at [87]):

The logical starting point is identification of the connection.  It is to be found in the material before the Tribunal, not in the statement of principles.  However, in practice, it may be convenient to start with the statement of principles simply because it may help the Commission to identify relevant aspects of the material which it must consider.  Nonetheless, the connection must have a factual basis demonstrated in such material.  For present purposes, it would not be sufficient to identify the connection as being simply “inability to obtain appropriate clinical management”.  That inability would not, itself, demonstrate a connection between any material contribution to, or aggravation of, the Veteran’s condition and his service.  That process necessarily involves:

•    identification of a discernible material contribution or aggravation; and

•    description of the connection between such contribution or aggravation and the Veteran’s service.

32    In the present case, counsel for the Commission submitted that the Tribunal took an approach consistent with the Full Court’s approach in Money. Ms Dowsett contended that, (at [79]-[81]), the Tribunal looked first for evidence which pointed to a material contribution to, or aggravation of Mr Saltmarsh’s spondylolisthesis, because such evidence was necessary in order to satisfy cl 7. Ms Dowsett submitted that the Tribunal did not find such evidence and cl 7 was therefore not met. Counsel supported the Tribunal’s conclusion (at [81]) that:

…the preconditions to the application of cl 6(n), which are set out in cl 7…have not been satisfied so that cl 6(n) cannot come into play. That is so even if there is material pointing to Mr Saltmarsh’s condition being described as acute traumatic spondylolisthesis or spondylolysis or to his having neurological manifestations of one or other of those conditions and to his inability to obtain appropriate clinical management for those conditions.

33    Ms Dowsett accepted that the Tribunal’s summary of the evidence before it did not include Associate Professor Love’s opinion that the circumstances in which Mr Saltmarsh returned to normal duties constituted inappropriate clinical management of his condition. Counsel argued however that the Tribunal’s failure to refer to that evidence did not show that it failed to consider the hypothesis Mr Saltmarsh advanced nor that it failed to afford him procedural fairness. Counsel submitted that Associate Professor Love’s evidence regarding the appropriateness (or otherwise) of the clinical management of Mr Saltmarsh’s condition was an element of Mr Saltmarsh’s reliance upon factor 6(n) and not a separate, stand-alone basis for his claim.

34    Ms Dowsett argued that, on a fair reading of its reasons, the Tribunal reached the factual conclusion that factor 6(n) as qualified by cl 7 of the SoP did not uphold the hypothesis advanced because the evidence before it was to the effect that when Mr Saltmarsh returned to work as a tank driver he was able to drive without difficulty and Mr Milner undertook the heavy tasks associated with that role.

Consideration

35    In my view there is little force in the Commission’s submissions.

36    The transcript of the Tribunal hearing shows that Ms Spencer of counsel (who also appeared for Mr Saltmarsh before the Tribunal) advanced a hypothesis in reliance on factor 6(n) of the SoP which connected his spondylolisthesis with the circumstances of his operational service; - that Mr Saltmarsh had an inability to obtain appropriate clinical management for his spondylolisthesis, in the presence of acute traumatic spondylolisthesis or neurological manifestations, as a result of the heavy work he was required to undertake when he returned to his pre-injury duties as a tank driver.

37    Ms Spencer took the Tribunal to Associate Professor Love’s evidence to the effect that:

(a)    Mr Saltmarsh suffered acute traumatic spondylolisthesis (as required under factor 6(n)(i) and as defined in cl 9) which arose from severe high-energy trauma to his spine, having regard to the speed and force with which the gun turret swung around and struck him in the back. Mr Saltmarsh gave evidence that the gun turret moved “very fast” and struck his lower back with a force that he described as “nine or 10 out of 10;

(b)    the loss of feeling in his legs which Mr Saltmarsh said he suffered after the incident (and to which he referred in the “Claimant Report-Trauma” he submitted to the Department of Veterans’ Affairs on 12 August 1998) constituted a “neurological manifestation” of his spondylolisthesis (as required under factor 6(n)(ii));

(c)    that appropriate clinical management of Mr Saltmarsh’s condition would have included providing advice in relation to the types of things that he should not do, including heavy lifting and avoiding bending and stooping, because those activities could aggravate or exacerbate his spondylolisthesis; and

(d)    posting Mr Saltmarsh back to work as a tank driver undertaking heavy duties was inappropriate clinical management given his ongoing symptoms and the need for assistance in performing the heavy tasks, which was likely to have adversely affected the clinical course of his spondylolisthesis.

38    There can be no question that Mr Saltmarsh advanced the asserted hypothesis. Indeed, Ms Dowsett did not contend to the contrary. It is common ground that the Tribunal had a duty to consider any hypothesis Mr Saltmarsh advanced: Hill at [96].

39    In my view it is also plain that the Tribunal failed to address the hypothesis Mr Saltmarsh advanced, essentially because it failed to correctly identify the hypothesis.

40    This can be seen, first, in its reasons at [53] where the Tribunal purported to set out the hypothesis Mr Saltmarsh advanced, albeit in general terms. The Tribunal said:

The hypothesis

The hypothesis put forward to support the causal link between Mr Saltmarsh’s back conditions and the circumstances of the particular service he rendered is this. While on operational service in Vietnam the gun on a Centurion tank swung around and crushed him against the tank’s hatch as he was getting out of the driver’s compartment. As a result, he suffered a high impact trauma resulting in a back injury that may be diagnosed as lumbar spondylosis or spondylolisthesis or both. The hypothesis is consistent with the SoP, Ms Spencer submitted.

41    That describes the hypotheses Mr Saltmarsh advanced in reliance on several other parts of factor 6, but not the hypothesis advanced in reliance on factor 6(n).

42    Second, at [73]-[75] of its reasons the Tribunal purported to set out the evidence relevant to Mr Saltmarsh's hypothesis based on factor 6(n). The Tribunal said:

Cl 6(n): inability to obtain appropriate clinical management for spondylolisthesis or spondylolysis

73    Clause 6(n), as qualified by cl 7, arises on the material in Mr Miller’s report that Mr Saltmarsh’s spondylolisthesis and spondylolysis were pre-existing but made symptomatic in 1969 when he was hit by the gun. It also arises on Professor Love’s evidence that Mr Saltmarsh had pre-existing spondylolysis. Professor Love’s evidence does not point to his spondylolisthesis being pre-existing for, in his opinion, it was an immediate consequence of being hit by the gun.

74    Professor Love’s evidence was to the effect that, in 1969, the treatment for spondylolisthesis or spondylolysis would have been bed rest until the symptoms subsided to a degree. That may have taken time and would have been followed by a rehabilitation programme and, perhaps, a lumbar brace. In cross-examination, Professor Love explained that the treatment would have been conservative with pain relief and rest. There would have been no alternative other than to hope for time and rest to resolve the condition. It seemed that rest was beneficial and appropriate in Mr Saltmarsh’s case.

75    Mr Saltmarsh said in his statement that he was off duty for approximately two weeks after being evacuated to Nui Dat. He did very little during that time. His oral evidence expanded upon that a little. Mr Saltmarsh’s memory was that the doctor at Nui Dat thoroughly checked him over before he was sent back to tent on the base. He could not recall whether he had any difficulty bending or twisting but the symptoms he had lasted about three or four weeks and he thought that he was largely confined to the tent for about four or five weeks. About half way through January 1970, he was assigned to what Mr Saltmarsh called “Special Headquarters”. He had been hit by the gun some time before Christmas. Around Christmas time, Mr Saltmarsh painted a sign for Special Headquarters and, once he came good, he helped rebuild a school and did sentry duty. He found that period very lonely as nothing was happening and he had nothing to do.

43    It is significant that:

(a)    the Tribunal said nothing in those paragraphs which indicates that it understood that Mr Saltmarsh advanced a hypothesis that the factor connecting his spondylolisthesis or spondylolysis to his operational service was an inability to obtain appropriate clinical management of his back condition because (after an initial period of time off work and light duties) he was returned to work as a tank driver, which involved some heavy duties including heavy lifting and sledge hammer use;

(b)    the only treatment to which the Tribunal referred was the rest and light duties Mr Saltmarsh undertook in the immediate aftermath of the tank incident, which the Tribunal said (at [74]) was “beneficial and appropriate”. Mr Saltmarsh had not, however, advanced a hypothesis that the period of rest and light duties which he was provided somehow constituted inappropriate clinical management. His hypothesis related to the heavy work he said he was required to undertake when he returned to work as a tank driver;

(c)    (at [74]) the Tribunal summarised the evidence given by Associate Professor Love, and it made no reference to his evidence that:

(i)    it was inappropriate clinical management of Mr Saltmarsh’s condition to return him to the heavy work associated with the role of tank driver if undertaking such work caused back pain and he needed assistance from his workmates to undertake the heavy tasks; or

(ii)    it was more likely than not that performing heavy duties adversely affected the clinical course of Mr Saltmarsh’s spondylolisthesis.

That evidence was central to the hypothesis Mr Saltmarsh advanced under factor 6(n), not the evidence the Tribunal summarised; and

(d)    (at [75]) the Tribunal summarised some of Mr Saltmarsh’s evidence about what took place after the tank incident but it made no reference to his being returned to pre-injury duties as a tank driver, which was central to the hypothesis he advanced. The Tribunal focused on Mr Saltmarsh having been largely confined to a tent for about four or five weeks and then assigned to duties at Special Headquarters.

44    Third, at [79]-[83] of its reasons the Tribunal analysed whether or not there was material pointing to or raising the hypothesis Mr Saltmarsh advanced. The Tribunal said:

79    In the present case, there is material pointing to Mr Saltmarsh’s having either spondylolysis or spondylolisthesis and spondylolysis before he was hit by the gun during operational service in 1969. There is material pointing to his receiving treatment in Nui Dat in the form of a medical examination and of his being given an opportunity to rest over several weeks followed by duties around the camp at Nui Dat. It also points to Mr Saltmarsh’s symptoms settling during that period while he rested and then moved into those duties at the camp. The material does not point to his suffering any worsening of his condition in any sense over that period. On the contrary, it points to his symptoms reducing, although not entirely subsiding, rather than to there being a material contribution to, or aggravation of, either those symptoms or of his spondylolysis or spondylolisthesis.

80    Putting aside Mr Saltmarsh’s symptoms, there is nothing else in the material that points to a material contribution to, or aggravation of, his spondylolysis or spondylolisthesis apart from the incident which occurred during his operational service and in which he was hit by the gun on the Centurion tank.

81    It follows that the preconditions to the application of cl 6(n), which are set out in cl 7 of SoP 59 of 2015, have not been satisfied so that cl 6(n) cannot come into play. That is so even if there is material pointing to Mr Saltmarsh’s condition being described as acute traumatic spondylolisthesis or spondylolysis or to his having neurological manifestations of one or other of those conditions and to his inability to obtain appropriate clinical management for those conditions.

82    As it is, I note that the material points to Mr Saltmarsh’s receiving appropriate clinical management for those conditions. Professor Love referred to rest, rehabilitation and, perhaps, a lumbar brace as being regarded as the appropriate treatment at the time. The material points to Mr Saltmarsh’s having rest and a gradual return to work. No mention is made of a lumbar brace. That treatment seems consistent with Professor Love’s understanding of the treatment regime in place in 1969.

83    For these reasons, I do not consider that cl 6(n) of SoP 59 of 2015 upholds the hypothesis put forward on behalf of Mr Saltmarsh.

45    The Tribunal only dealt with the evidence relating to Mr Saltmarsh’s hospitalisation and the period of rest and light duties he was provided. It made no reference to:

(a)    Mr Saltmarsh’s evidence about his return to work as a tank driver and the difficulty he had with the heavy work involved in that role;

(b)    Mr Milner’s evidence as to the assistance Mr Saltmarsh required to perform that work; or

(c)    Associate Professor Love’s evidence that it is more likely than not that undertaking the heavy work associated with the role of tank driver aggravated Mr Saltmarsh’s spondylolisthesis.

46    The Tribunal focused on the evidence set out at [73]-[75] and [82] of its reasons, with which I have already dealt. There is nothing in the Tribunal’s reasons at [79]-[83] to show that the Tribunal considered the hypothesis Mr Saltmarsh advanced.

47    Nor did the Tribunal take its consideration any further when it dealt (at [90]) with factor 6(k) in SoP 5 of 2006. The Tribunal supported its conclusion that factor 6(k) did not uphold the hypothesis Mr Saltmarsh advanced only by reference back to the evidence with which I have already dealt.

48    The Tribunal’s reasons are not to be approached with an eye closely attuned to the detection of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J). Even so I cannot accept the Commission’s submission that, on a fair reading of the reasons, the Tribunal addressed the hypothesis Mr Saltmarsh advanced. To reach that conclusion would mean more than ignoring some looseness in the Tribunal’s language or filling in a small gap in its reasoning. It would require a wholesale reconstruction of the decision insofar as it relates to the hypothesis under factor 6(n).

49    I consider the Tribunal fell into error in several inter-related ways:

(a)    in the first stage of the Deledio process the Tribunal’s task was to consider all the material before it and determine whether that material pointed to or raised a hypothesis that the spondylolisthesis Mr Saltmarsh suffered was connected with the circumstances of his service. The Tribunal failed to correctly identify the hypothesis which Mr Saltmarsh advanced under factor 6(n) of the SoP and also that the evidence before it pointed to or raised that hypothesis. As a result the Tribunal asked itself the wrong question and it misapplied s 120(3) of the Veterans Act: Hill at [96]; Grant v Repatriation Commission (1999) 57 ALD 1 at [18] (Merkel, Goldberg and Weinberg JJ);

(b)    in the third stage of the Deledio process the Tribunal’s task was to form an opinion as to whether the asserted hypothesis is a reasonable one (s 120(3)) which involved consideration as to whether factor 6(n), as qualified by cl 7, upheld the hypothesis (s 120A(3)). Having incorrectly identified the hypothesis Mr Saltmarsh advanced and/or which was pointed to or raised by the evidence before it, the Tribunal considered an incorrect hypothesis and determined that it did not uphold the SoP. The Tribunal asked itself the wrong question and it misapplied ss 120(3) and 120A(3) of the Veterans Act; and

(c)    by failing to respond to a substantial and clearly articulated argument the Tribunal also failed to provide Mr Saltmarsh with procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24] per Gummow and Callinan JJ and [95] per Hayne J; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at [90] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Summers v Repatriation Commission (2012) 293 ALR 86; [2012] FCAFC 104 at [46] (Gilmour, Perram and Jagot JJ).

The Tribunal’s errors are similar to those found by Gordon J in Ellis v Repatriations Commission [2014] FCA 847 at [42], [44] and [54].

Impermissible fact finding?

50    Further, at [80], the Tribunal said that, putting aside Mr Saltmarsh’s symptoms, apart from the incident in which he was hit by the tank gun “there is nothing else in the material” that points to a material contribution to, or aggravation of, his spondylolysis or spondylolisthesis. That statement reveals further error by the Tribunal in one of two ways.

51    First, it indicates that the Tribunal failed to have regard to the whole of the material before it. The finding that “there is nothing else in the material” is plainly wrong. There was some evidence before the Tribunal to the effect that when Mr Saltmarsh returned to work as a tank driver he performed heavy work and suffered back pain in doing so. Associate Professor Love gave evidence that it was more likely than not that by returning to perform heavy work in the presence of back pain Mr Saltmarsh aggravated his underlying spondylolisthesis.

52    In the alternative, the finding indicates that the Tribunal engaged in impermissible fact-finding. In a claim for a pension for war-caused incapacity the stage at which fact finding is to occur can be of central importance. As Wilcox J observed in Dixon v Repatriation Commission (1999) 59 ALD 315; [1999] FCA 582 at [25]:

…If belief is addressed at the step 3 stage [of the Deledio process], there is a risk that the decision maker will rule against a claimant simply because he or she is not persuaded the claimant’s story is probably true… This would defeat the protection for veterans embodied in s 120(1), whereby a claim which fits the factors in the relevant Statement of Principles must be accepted unless the decision maker is satisfied, beyond reasonable doubt, that it is without justification.

(Emphasis in original.)

53    In stage 3 of the Deledio process the enquiry under ss 120(3) and 120A requires no more than that the evidence before the Tribunal points to or raises a hypothesis which is consistent with the template in the applicable SoP. If it does then it is a reasonable hypothesis: Summers v Repatriation Commission (2015) 230 FCR 179; [2015] FCAFC 36 (Summers) at [116] (Kenny, Murphy and Beach JJ). The formation of such an opinion by the Tribunal may involve a factual conclusion, but no question of fact finding or rejection of evidence arises at this stage: Deledio at 97; Collins at [48].

54    There was evidence before the Tribunal to the effect that when Mr Saltmarsh returned to his role as a tank driver he undertook some heavy work including heavy lifting and using a sledge hammer, and that he obtained some assistance from Mr Milner with that heavy work. There was also some competing evidence to the effect that Mr Milner took over the heavy work from Mr Saltmarsh (such that Mr Saltmarsh no longer performed it). In light of the competing evidence the Tribunal’s finding that “there is nothing else in the material” involved an evaluative process of weighing the evidence and resolving the evidentiary conflict between the different parts of the evidence, which was impermissible at that stage of the Deledio process: Summers at [133]-[143].

GROUND 2 - ADEQUACY OF REASONS

55    Given my findings in relation to the first ground of the appeal it is unnecessary to decide the question of the adequacy of the Tribunal’s reasons. While the Tribunal’s reasons do not expose how it dealt with the hypothesis Mr Saltmarsh advanced (indeed in my view the Tribunal did not deal with it), the error is better characterised as a failure to correctly identify and respond to the hypothesis advanced rather than an error through inadequacy of reasons.

COSTS

56    I am aware of no reason why costs should not follow the event and I have made an order for the Commission to pay Mr Saltmarsh’s costs. However, in case either party seeks a different costs order, I have allowed liberty to apply in that regard. If either party seeks a different costs order it must apply for such an order and file short submissions in relation to costs (no more than three pages) within seven days. The opposing party must file short submissions in response within seven days thereafter.

Associate:

Dated:    29 January 2018