"QT CATCHWORDS Repatriation - Pension - Lumbar Spondylosis - Whether incapacity arose out of or was attributable to war service - Repatriation Review Tribunal - Onus of proof - Standard of proof - Conflict of medical evidence ~ Whether sufficient evidence to be satisfied beyond reasonable doubt of no causal relationship. Repatriation Act 1920 - ss,24AA, 48, 101, 107VH. 107VZ, 107VZZH. EDWARD HOWARD THORNE v. REPATRIATION COMMISSION No. G172 of 1983 FOX J. 11 September 1984. Sydney. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G172 of 1983 GENERAL DIVISION ON APPEAL FROM THE REPATRIATION REVIEW TRIBUNAL BETWEEN : EDWARD HOWARD THORNE Applicant AND: REPATRIATION COMMISSION Respondent ORDER JUDGE: Fox J. NATE OF ORDER: ll September 1984. WHERE MADE: Sydney. THE COURT ORDERS THAT: l. The appeal be allowed. 2. The decision of the Repatriation Review Tribunal given on 6 June 1983 be set aside. 3. The Commonwealth of Australia pay to the applicant a pension in respect of his incapacity arising from lumbar spondylosis. 4. The respondent to pay the appellant's costs. —- cE IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G172 of 1983 ~e www GENERAL DIVISION ON APPEAL FROM THE REPATRIATION REVIEW TRIBUNAL BETWEEN : EDWARD HOWARD THORNE Appellant AND: REPATRIATION COMMISSION Respondent CORAM: FOX J. DATE: 11 September 1984 REASONS FOR JUDGMENT This 18 an appeal from a decision of the Repatriation Review Tribunal brought pursuant to s.107VZZH of the Repatriation Act 1920 ("the Act"). That section gives to an appiicant ina proceeding before the Repatriation Review Tribunal a right to appeal to the Federal Court "on a question of law, from any decision of the Tribunal in that proceeding". we The Tribunal, by majority, on 6 June 1983, affirmed a decision of the Repatriation Commission in which the appellant's claim for a pension was disallowed. There are four grounds of appeal, as follows: "lL. The Repatriation Review Tribunal erred in law in holding in the circumstances that a medical explanation as to the cause of the appellant's Lumbar Spondylosis was sufficient to discharge the onus and standard of proof. 2. The Tribunal erred inlaw as to the onus and standard of proof. 3. The Tribunal erred in law in holding that the appelliant's condition must have not existed at the time of the appellant's discharge. 4. The Tribunal erred in deciding that 'it 1s satisfied beyond reasonable doubt, that the Repatriation Commission's decision of 18th March 1981 1s the decision that the Tribunal would have made if it had conducted the proceedings in which the decision was made.'" The appellant suffers from a degenerative back condition, lumbar' spondylosis. His basic eligibility for a pension under the Act 1s not in issue. Indeed, a part of his application, which relates to neural deafness, was held pensionable and a pension was aqranted in respect thereof. Nor is 1t contested that the appellant complained of an injury to his back while on war service. What is in issue is whether or not there 1s any causal relation between the appellant's spondylosis and that injury, and in this connection, whether the Commission's onus of proof could have been discharqed. —- rere The sections of the Act, so far as they are relevant to the present proceedings, are as follows: "101. (1) Upon the incapacity or death - (b) of any member of the Forces whose incapacity or death has arisen out of or 1s attributable to his war service, the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions 1n accordance with Division Ll: 107VH. (1) In a proceeding on a review. the Tribunal shall have reqard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before the Tribunal 1n_ the proceeding that was not before the Commission or the Board but would have been relevant to the making of a decision in the proceeding before the Commission or the Hoard. (2) On the completion of its consideration ina Proceeding on a review - (a) where the decision the subiect of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless 1t 1s satisfied, beyond reasonable doubt, that there were insufficient qarounds for granting the claim or application: or (b) an any other case - the Tribunal shall set aside the decision the subtect of the review unless 1 18 satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made." There 1s no onus upon the appeliant to establish a 7. e- causal connection between the incapacitv and his var servire, The onus of disprovina the atter which would establish his right to a pension 18 90n the Commission. There must of course be an initiating claim. the form of which 1s prescribed bv 5. 74AA of the Act. Sub-sect1ran +'¢1) provides that a claim shall he Accompanied "bv such evidence available to the claimant as he ma) considers mav support fhe claim". Sub-section 67) nravides rhat fhe preceding sub-section "shall not be Faken as impesing anv onus of proof on a claimant". The standard Of proor resting npan Fhe Commissien can give rise ta a number of difticnit1es. An "abwitis one is rhak, speaking qenerally, rhe lass Tne aAsslirance Tirean br the applicant the qrearer ws the ditficilty of lischarwind rhe anus. [n rhe present case the Tribunal has accepied all or nearly all that has been said by the appellant. fhe Tribunal, in reachina a dectsion. cannot reaard the onus as aAischarsved in reliance on siirmise, ar bv olacinag weight -n a vercejved back oat earroborative evidence, The relevant princinsies were discussed bv a Pull Court of this Court in Law 7. Peparriation Commission '1980) 31 A.L.R., where 1b said sat p.ltio: "The scheme of the Act ia nok to escablisn an adversar7 method of determining claims and applications, bar ra have the Department make the relevant investiaations and then to require that. 1f there 1S some evidence that the claimant 135 eliqible fo receive a pension, a pension be paid unless the investicvations or the course ot the proceedings rhrow ue information wnich establishes bevond reasonable doubt that a pension 1s not pavable." In support of his claim for a pension the appellant submitted a statutory declaration in which he stated that he "ricked or pulled a muscle" in his lower back while excavating a well during a posting (with the Royal Australian Air Force) in the Trobiand Islands in 1944. He did not report the incident to a medical officer and continued working. Shortly thereafter, he engaged in a game of football which caused him some pain, albeit not disabling pain. The appellant underwent a medical examination prior to his discharge in 1946 but did not report any service-related injury. After his discharge he worked In a number of occupations, one or two of which could be said to be quite strenuous. The appellant says that the pain in his lower back has continued since the war and that he did not suffer from it before. In 1948 he souaht medical treatment for his back, although no evidence 1s available concerning medical opinion on that occasion. In 1958 he again saw doctors in relation to the pain and in 1966 x-rays were taken of his cervical spine, but these disclosed no abnormality. X-rays were taken in January 1980, this time of the lumbar reqion, and these, in the opinion ot the examining doctor, revealed "deqenerative spondylosis", In March 1980 the appellant lodaed his claim for a pension. In May of that year, he was referred by the Commission to an orthopaedic surgeon who took x-rays of the appellant's back and diagnosed lumbar' spondylosis. Those x-rays were later examined by a Departmental medical officer who was of the opinion that the appellant's condition was in keeping with normal wear and tear for a man of his age. The Tribunal had before it medical evidence from two doctors, the Departmental medical officer and a Dr. Seaton, who was asked for his opinion bv the Legal Aid Office, acting for the appellant. The Tribunal tested the severity of the original trauma and its relation to spondylosis by reference to symptoms, and disabilities (or the lack of them) and the examinations which have taken place since. The evidence of the Departmental medical officer was contained in a report made pursuant to s.48 of the Act. The report concluded that the appellant's disability could not be attributed to his war service in anv way. Dr, Seaton, however, was of the opinion that in some part, the appellant's spondylosis would have its origin in war service and that some causative relationship could be said to exist. The Tribunal found that 1t was satisfied bevond reasonable doubt that there was not the necessarv connection between the condition and war service and. affirming the decision of the Commission, rejected the claim for a pension. The principal submission for the appellant is that the Tribunal could not be satisfied beyond reasonable doubt that the necessarv connection did not exist. Counsel for the respondent submitted that this was not a case where the Tribunal displaved a "mere preference" for the evidence of one medical expert over the other. He submitted chat the present case 1S the verv one postulated bv Murphv 7. in Repatriation Commission v. Law (1981) 36 A.L.R. 411 where he said (at 7.414): "A conflict of testimonv ... does not require that the claim be upheld ... although 1t would often have that result. Nevertheless, 16 15s nat enough that the Tribunal prefer the evidence 'tncludina opinion evidence) which tends to disprove the claim. Even 1f 1t reiects the evidence in favour of the claim, the claimant 15 entitled to succead unless rne Tribunal 15 satistied bevond reasonable doubt rnakt there are insufficient aroqunds for the claim . CBJut in law. hecause there was evidence which. tf accented, disproved the claim, the Tribunal wa. entitled ta be satisfied bevond reasonable doubt chat there were insufficient arounds, and, were it nor far errors of law. 1f 1s difficult to see how the decision could be disturbed." Counsel then presented a number of obiective facts which he claimed were sufficient to disclose a manifest error in the premise upon which Dr Seaton's report was based. namelv that the appellant "did sustain quite a severe pack iniury an Service'. This premise mav be insecure. but 39 15 fhe basis rpon which ut 15 attacked, I mention, as relevant to this argument. and qenerallv. some of the matters raised: 1. The appellant did not seek treatment for the ianiury at the time of its occurence, although he did seek treatment for some minor complaints wunassociated with the injury while stationed in the Trobiand Islands. 2. Following the incident, the appellant continued with the activity (digging the well) which was said to have given him the injury in the first place. 3. He did not describe to anyone at or about the time of the injury the occurrence of a trauma of any severity. 4, A short time after sustaining the injury, the appellant participated in a football match. 5. He said nothing about the injury at the time of his medical examination on discharge. These matters are based upon the premise that anv trauma sufficient to have a connection with the spondylosis subsequently diagnosed would have resulted in different conduct. One difficulty with this approach 1s that there is an absence of medical evidence to indicate what course of conduct would have been indicated. Counsel submits that this 1s a matter of common sense, but I believe ina case such as the present there should Et ~ SEO be appropriate medical evidence if the factors are to be relied upon. Except insofar as the medical evidence is descriptive of x-rays, 1t seems to combine fact-evaluation with medical opinion. This 1s of course, not uncommon. Expert medical evidence is, however, evidence of opinion concerning medical matters. Except when the facts are within the personal knowledge of the medical practitioner, a conclusion must be based on their separate assessment. To be of value, his medical opinion has to be linked with the facts, as found by the Tribunal. Put another way, a conclusion expressed by a medical practitioner usually proceeds on assumed facts, which have to be proved. By the Act utself, Repatriation medical officers are required to state their views as to the attribution of a particular condition to war service. This necessarily involves them in taking a view of the facts. The Tribunal must, however, form its own view of the facts from the material before 1t and look at the medical evidence in light of the views thus formed. The relevant principles to be applied were discussed by Aickin J. in Law's case (infra). Referrina to s.107VH, he said (at p.424): "T am satisfied that the operation of that section ... requires that. in relation to any fact necessary to establish entitlement. the Review Tribunal must be satisfied beyond reasonable doubt that the fact does not, or did not, exist before 1t can refuse an application or dismiss an appeal by a claimant. The reference in sub-s. (2) to the "completion of its consideration ina proceeding on review" is to the entire process of examining the evidence and determining whether the Review Tribunal 1s satisfied 10. beyond reasonable doubt that each of the factual requirements has not been established. Sub-section (2) then directs the Review Tribunal as to what 1t must do in the light of its determination, i.e. to set aside the decision if it is not so satisfied. and to uphold the decision if 1t is so satisfied." In the present case, 1t cannot be said that the Tribunal formed its own view of the facts, although it did express concurrence with some of the statements of facts set out in the doctors' reports. The Repatriation medical officer said in his report that it was "very unlikely" that there was a connection between the incident and the condition, and further, that "the veteran's claim appeared unlikely". The conclusion expressed by him was, as I have mentioned, that the condition was not attributable to war service. It ius not altogether clear what view the Repatriation medical officer took -f the facts and what credence he qave to the aopellant's account of them. Indeed, 1t 1s not clear that he had in mind all the facts so far as they are available. Annexed to his report was a statement of the nature of spondylosis, 1ts normal degenerative character, and what might be looked for to indicate whether the original deaenerative process had been accelerated or affected by a trauma. This could be useful material for the Tribunal. once 1 had the facts. The onus could not be satisfied by reliance on the conclusion of the Repatriation medical officer. The Tribunal did cause enquiries to be made pursuant to s.107VZ of the Act. concerning the appellant's activities after ll. discharge, but the results were inconclusive. The Tribunal rejected medical opinion tendered for the appellant. that of Dr. Seaton. on the basis of what 1 'inderstood fo be a palpable error init. To this I have already rererred, £ am not sure that the Tribunal was correct in its interpretation of what he had to sav, although his report suffered from the same defect as that of the Revatriation medical officer in that it was an amalaam ot fact - evaluation and opinion. Gne view which 15 pen 15 that Dr. Seaton was expressing a view as to the severity of fhe oriaqinal iniuryv based upon the evmptoms shown after discharge and what the appellant did in relation thereto If his view was accepted, namelv cnat the sriqginal trauma was verv severe, the remainder of the medical evidence would support the claim for a pension. The dissenting member of the Tribunal cook a different view as to Dr. Seaton's report, one rather aluna the lines that I have suaqested as a possibilitv. and renaaried the zase as one where there were conflicting medical opinions. In those eiecumstances. he could not be satisfied beyond reasonable doubt that the appellant's incapacity had ner been contributed &:o in anv material deqgree bv the conditions of his war service. My own view 15 that what 1s said in the reasons of the maloritv when examined in the liaht of the evidence available, does not expose a case for being satisfied bevond reasonable —~—, 12. doubt that the necessary connection did not exist. In saving this, I am of course fully aware that fact-finding 1s a matter for the Tribunal, and not for this Court. There are two main difficulties with the reasons, one I have already adverted to, namely the acceptance of conclusions by medical practitioners which are based upon facts as well as medical opinion, without the factual basis being established. The second is that, given such evidence as there was relating to medical matters. the factors which could negative a connection between the injury and the condition were not established. C am of the opinion that the Tribunal, if it had correctly directed itself on the law, could not have come to the conclusion that 1t was satisfied bevond reasonable -'ioubt that there were insufficient syrounds for aranting fhe application. This 1s a matter of law. In the circumstances the appeal must be allowed. In that event the appellant seeks an order that the Commonwealth of Australia be liable to pay to the appellant a pension in respect of his incapacitv. The quantum of the pension has to be assessed separately. Counsel for the Commission, on the other hand, has submitted that if I were of a view adverse to 1ts submissions, the matter should be remitted for further hearing. There 1S Some merit in the latter approach because my view 1s that the matter has not been fully explored and there are ——. coe 13. deficiencies 1n the Tribunal's analysis which could possibly be remedied. On the other hand, there seems to be no sufficient reason why the appellant should have to contest another case in the light of the circumstance that, as things stand and on the basis of the material before the Tribunal and the way it dealt with it, the onus borne by the Commission has not been discharged. In my view, therefore, I should accept the submission of the appellant and order that he be admitted fora pension. I should perhaps add that in expressing i1ts decision formally, the Tribunal mistakenly incorporated the formula given in s.107VH(2)(b), which relates to a case vhere the decision of the Commission was not one refusing a pension. This does not at all accord with what is otherwise stated in the reasons, and I think I can disreqard it and accept as the decision both the last sentence of the reasons and what clearly appears from them. I certifv that this and the twelve (12) preceding pages are a true copy of the Reasons for Judaqment herein of his Honour Mr. Justice Fox. y Mehl: oll Associate Dated: 11 September 1984. —)