RE: ALAN CLARK -vV- REPATRIATION COMMISSION Please find attached Orders and Reasons for Judgment in the above matter dated 30.3.84 and a copy of the Additional Orders and Additional Reasons for Judgment dated 26.6.84. FEDERAL COURT OF AUSTRALIA CATCHWORODS Repatriation Tribunal - whether finding such that it could not reasonably have been come to - medical opinions based upon absence of facts found by Tribunal. REPATRIATION ACT 1920 Section 101 N.S.W. G.182 of 1983 ALAN CLARK v. REPATRIATION COMMISSION St. John, J. Sydney Friday 30 March, 1984 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.182 of 1983 ) ) GENERAL DIVISION Q fo) ee) Rm DATE: PLACE: N On appeal from the Repatriation Review Tribunal BETWEEN : ALAN CLARK Applicant AND: REPATRIATION COMMISSION Respondent ORDERS ST. JOHN, J. 30 MARCH, 1984 SYDNEY The appeal is upheld. The matter is stood over to a date to be fixed for argument on what further orders should be made. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.182 of 1983 ~ryvrvnr GENERAL DIVISION On appeal from the Repatriation Review Tribunal BETWEEN : ALAN CLARK Applicant~ AND: REPATRIATION COMMISSION Respondent REASONS FOR JUDGMENT CORAM: ST. JOHN, J. DATE 30 MARCH, 1984 PLACE: SYDNEY On 24th March 1983, the Repatriation Review Tribunal expressed itself as being satisfied beyond reasonable doubt that there were insufficient grounds for granting a claim by the applicant that the condition of cervical spondylosis from which he suffered was the result of any occurrence that happened during the period from the date of his enlistment to the date of termination of his war service and, therefore, a pension was not payable in respect of that incapacity pursuant to S.101 of the Repatriation Act 1920. The grounds of appeal specified three alleged errors of law, but it is unnecessary to set them out in detail as only the first ground, in my view, has any substance, and counsel for the respondent concedes that that ground, although differently phrased, is, in effect, that the evidence was such that no Tribunal properly directing itself could have reached the conclusion that it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim; Lennell_ v. Repatriation Commission, Full Court of the Federal Court of Australia, 3rd February 1982. It is necessary to examine the evidence before the Tribunal. Firstly, there was a statement by the applicant dated 3rd May 1979 which the Tribunal, in giving its reasons, accepted in its entirety. That statement contained the following facts. On 3rd April 1945 the applicant was the pilot of a Mustang aeroplane which was set on fire, apparently by enemy action in Yugoslavia, and, on the applicant attempting to abandon the aircraft, travelling at a speed of some two hundred miles per hour, the ripcord of his parachute was caught and operated before he had left the cockpit and, as a result, he was forcibly dragged from the aeroplane by the parachute which became caught in the tailplane, and, asa consequence was torn and his descent to the ground, some five thousand feet below, was accelerated by the tear. He says that he landed heavily on his back, he lay stunned for an unknown period and then made his way to nearby mountains where some local people hid him in what he describes as "an earth bunker". He was left there for three days, whilst German search parties were operating, in what he describes as, a state of "shock dulled awareness of lacerations and bruising". He eventually returned to his squadron after two months, where he received medical attention. For some months thereafter, he experienced difficulty in lifting his arms above shoulder height and some pain was involved. He does not specify where the pain was, but, having regard to the context in which the statement was made, it is obvious he was referring to pain in his neck. He thereafter suffered bouts of pain which became progressively worse and, in 1971, he sought the condition causing the pain to be recognised as a war- caused disability, but this claim was rejected. He continued by recounting at severe bout of back and neck pain coupled with partial paralysis of the right arm, but his symptoms were not alleviated by physiotherapy and numbness persisted in some fingers of the right hand. Included in the material before the Tribunal was a statement made on 30th April 1971 on Form D.250. The applicant stated his reasons for delay in seeking attention were:- "(a) No medical services available in Yugoslavia. (b) Symptoms at first were slight and sporadic, seemingly requiring no medical alleviation. However, over the years condition has slowly worsened with periods of acute exacerbations involving considerable discomfort." No comment was made by the Tribunal as to whether or not this statement was accepted or rejected by it. Reverting to the statement made on 3rd May 1979, I feel I can take judicial notice of the fact that "stunning" in the circumstances described was the result of trauma to the cranium sufficient for brain function to cease, but it is clear from that statement, and of course perfectly understandable, that the time during which the brain did not function is unknown. I can further take judicial notice that trauma to the cranium may result in trauma or pressure to the cervical spine by reason of the proximity of those body structures. Of the medical evidence before the Tribunal, it is apparent that only one medical specialist saw the applicant and had a history similar to the statement of facts dated 3rd May 1979 which was accepted as truthful by the Tribunal. That specialist was Dr. Seaton, whose reports were before the Tribunal, and it is necessary to reproduce some of them in some detail. On 3rd October 1979, Dr. Seaton said that he was unable to give an opinion until he was able to study x-rays SPN Se NE sates: taken in 1971. After receipt of x-rays taken in December 1970, he expressed the view that they showed:- "a well established disc injury and an old traumatic lesion to the 5th cervical vertebra at its lower anterior epiphysis in the form of a traumatic wedging. The disc space is narrowed, but only slightly. His condition is consistent with a longstanding injury to bone and disc which had not formed arthritic change." In a further report made on 18th March 1982, Dr. Seaton said:- eee I still contend that there isa lesion at the 5/6 level and it is consistent with trauma that the man describes when he was a Mustang pilot. I have taken the opportunity to give these x-rays for perusal to Dr Paul Cahill of 193 Macquarie Street, fora second opinion. It must be realized that whilst the lesion is not gross, there is certainly in my mind, a great element of doubt, and I feel that if there is a lesion, then it is consistent that it occurred when the man had the accident described, as a Mustang pilot. I will leave the issue with Dr. Paul Cahill, who is a Senior Radiologist, to see whether he agrees or disagrees with this opinion." Dr. Paul Cahill, on seeing the x-rays, but without the benefit of any patient history, reported as follows:- "Following is the x-ray report on Mr. A. Clark's CERVICAL SPINE: The disc space at C5/6 appears fractionally narrow compared with those immediately above and below it. The appearance is consistent with early degenerative change at C5/6. Also, early osteophytic change is seen on the left neurocentric joint at this level." In dealing with the force of Dr. Seaton's opinion, the Tribunal took the view that he had deferred to greater expertise in the field of x-ray analysis to Dr. Cahill, and that Dr. Seaton's opinion was thereby weakened. The Tribunal also accepted a statement of the aetiology of cervical spondylosis by Dr. Hammond in these terms:- "Cervical Spondylosis: An affection of the cervical spine causing disc degeneration and the formation of bony outgrowth (osteophytes). It may cause no symptoms, or especially if the cervical spine or nerves are compressed, many and severe symptoms of pain, muscular weakness etc. In this case the condition is very mild, at the present time as it was not fully developed. The cause is age degeneration, with or without trauma to the area." Dr. Hammond also reported that there was no reference to the condition of cervical spondylosis, or a similar condition, in the service documents. It is pertinent to point out that Dr. Hammond had no patient history of trauma. Three other doctors had also given reports which were before the Tribunal which included a report by Dr. Hedberg, who accepted Dr. Wright's findings and which the Tribunal summarised: - "1. there was no history of any injury to the neck; 2. x-rays taken in December 1970 were interpreted as revealing evidence of early degenerative changes; 3. there was no evidence then of any old trauma to the C5-6 disc; and 4. the diagnosis of early cervical spondylosis was consistent with the Applicant's then age of 46 years and that there was no evidence of acceleration of degenerative spondylitic changes in 1971 such as can result from past injury." Again, it should be pointed out that there is emphasis on the lack of any history of injury to the neck. Lack of history has first place in the reasons given. The Tribunal also relied upon a Dr. Schieb, a consultant radiologist, whose report included:- "There is minimal osteophytic lipping affecting the lower border of C5. This is an early degenerative lesion. There is no other abnormality and no evidence of previous trauma." Both counsel agreed that Dr. Schieb did not have any patient history involving trauma. The Tribunal was aware of, and in part reproduced the statement by Murphy,J. in Repatriation Commission v. Nancy Law (1981) 36 A.L.R. 411, where His Honour referred to the difficulty of applying the onus of proof, but did not specifically advert to the remarks of Aitkin, J. at p.423 of | that report, where His Honour said:- "Although the medical reports were in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong." I quote this passage because it highlights the difficulty of decision-making where written reports of experts are the only material utilised. In the result, the Tribunal preferred the opposite view to that of Dr. Seaton and held that the Commission had discharged the onus of satisfying the Tribunal beyond reasonable doubt that there were insufficient grounds for granting the claim. The result reached by the Tribunal, upon analysis, reveals an internal conflict in the totality of the evidence it had accepted. The acceptance of the applicant's statement of the 3rd May 1979 with its history of trauma and the early showing of symptoms, intermittent though they may have been, in the neck area andthe gradual aggravation of his neck condition is consistent with Dr. Seaton's view of the cause or aggravation of cervical spondylosis. It seems clear to me that, had the medical practitioners, whose opinions the Tribunal relied upon, been asked to give their opinions based upon an acceptance as fact of that statement by the applicant, they would either reverse their opinions or, at least, be less positive in the statement of them. When specialists emphasize a lack of history of trauma upon which to base opinions and the Tribunal finds facts, at least suggestive of trauma and positive as to early appearance of symptoms of neck injury, those opinions must diminish in acceptability. In my view the decision reached by the Tribunal was one to which it could not have reasonably come on the evidence before it, and I allow the appeal. Having reached that decision, I propose to give the parties the opportunity to address me, on a date to be fixed, on what orders I should make in the circumstances. It appears to me that the orders I make may well be influenced by the view I take of the nature of proceedings before the Tribunal. There are indications in the Act that those proceedings may be of an inquisitional nature or of an adversary nature and I wish to hear submissions from counsel on that matter. 10. The formal orders I make at this stage are:- The appeal is upheld. The matter is stood over toa date to be fixed for argument on what further orders should be made. Sand the Mire (aq) 3a true copy of the Peason or Judgment herein of his Honour vr, Justice $T Sour Associate Grok Dated: 30.3. 84 3 n sre ic error cof Law - in asoects or Tribunai's function. Repatriation Act 1920 Sections 107VY, G.182 of 1983 ALAN CLARK v. REPATRIATION COMMISSION LO07VZ OF - + IN THE FEDERAL COUR NEW SOUTH WALES DISTRICT REGISTRY ) AUSTPALIA ) No. 182 of 1983 GENERAL DIVISION =) ORAM: ST. JOHN. c. ¢ 26 JUNE 1984 (2 ped tH SYDNEY rg be iO [es] THE COURT ORDERS THAT: mn a ; The applicant cervical spondylosis se Peraue Tei ning at eeuiad BETWEE. ! AND: REPATRIATION COMMISSION Respondent ADDITIONAL ORDER Ss claim for incavacity resulting from Allowed as and from December i977 On appeal from the Repatriation Review Tribunal fe tc a) t" las] Red ta] Ba tH Le fae] it (e) Zz oO z IH (a7) wnfos) Zz Respondent ADDITIONAL REASONS FOR JUDGMENT ie) z wm H a z fon) DATE: 26 JUNE 1984 PLACE: SYDNEY After announcing ms q decision to uphold the appeal in this matter. I also deferred making orders consequent upon such decision until such time as counsei had the opvortunity of addressing me as to what orders should be made and, in particular, to address me upon the nature of the vcroceedings } - 4 Ta} 4 y APs 7 Tv 5 4 betore the dripunai, tne or wnhicn « nad decided to set asice 1m Parti cMus , i vequested Zuomissions as to the indications in the Revatriation Act 19290 ("the Act": that they could be regarded . in some aspects, as adversary and, in others, as investiaatoryv or inauisitorial. Such submissions were made and counsel helpfuliv directed mv attention to some cases in which these matters were touched upon. As well as the benefit of counsels' submissions, I have had the advantage or reading the judgment of Wilcox, J. in Repatriation Tommission v. Reid 'unreported. i Tune i984), which was The Act provides for claims for pensions to he decided initially by the Repatriation Commission. Members of the torces, against whom decisions have been made, mav make application for review of . the decision by the Tribunal; S.107VC of the Act. By S.107VG of the Act, the Tribuna:, in its function, is not bound by "technicalities, legal forms or rules of evidence". Only lecal practitioners of five vears e Tribunal; oniyv by: standing may be apvoointed President of leqal practitioners or graduates in law may be apvointed to Sy the otfice of Deputy President: S.107VZd. By S.1LO7VN, the Tribunal is constituted by the President or an Deputy 8) "S esident or, in mn t. President and two others and by $.107VT, the o LG} fu wD nis absence a Denuty President, shali vresi over the Counsel for the Commission urged me to follow the course taken by Fitzqgeraid. J. in two cases, Reoatriation iliiams and Repatriation Commission v. Campbell lo) (9)Fs - ca (oy te fa) ES < = (unreported, both delivered 30 March 1984), where that learned judae heid that the failure of the Tribunal to avail itself of further medicai evidence by use of S.107VZ of the Act was an error orf law and orders rvemitrine the matters for further Ss case, the disease in aquesticn was one of unknown aeticloay. In Reid''s case Wilcox. J. declined to take the same course as Fitzgerald. J. . " Sub-section 1lO7VY(2) empowers the presidina member, Or a person authorised by the presiding member. to summon a person to qive evidence and to produce documents and $.107VZ enables such presiding member to reauest the Secretary of the Commission to forward further documents, cpotain further ray w documents and to arrange for the making or any investigation or medical examination that he thinks necessary. $.107VU of the nn ifdpard e AUALLI LOCATION U Tribunal eroc referred to. The power is vested solely in the oresiding member. It is. no doubt. to be exercised judicialliv. buta failure to exercise it without a request from either the applicant. the Commission or the Tribunal could not, in my lew, amount to an error of law on the part of the Tribunal. it is for these reasons that I ressectfuliv disacree with Fitzqerald, J.'s decision to the efrect that failure to supslement a paucity of evidence by exercising the powers under 5.107VZ is an error of law of the Tribunal. There is no suggestion that, in the proceedings under appeal any request for turther witnesses or documents was made. The provisions relating to proceedings before the Tribunal indicate that thev are, at least in vart. adversary in nature. I upheld the appeal because the Tribunai's findings of fact destroved a factual basis upon which medical experts made their reports. ist applicant. Further, the resources or the Commission to a oh) present its case in a compiesce and satisractory wavy rar exzce those of most applicants. In the instant case, the Commission was well aware of the history or symptoms given by the applicant and acceoted bv the Tribunal. It was the Commission's failure to acaquaint their medical experts with those alleged svmptoms which led it to present expert medical evidence based upon the lack ot such symptoms. In the result. the apoiicant's submissions as to the order to pe made should nt's claim for wo pe accepted. and I order chat th a 'Oo 'S ray be aQ wo incapacity resulting from cervical spondylosis be allowed as and from 3 December 1977. I certifv that this and the four (4) preceding pages are a true copy ot the Additional Reasons for Judament herein of his Honour Mr. Justice St. John. Associate: Boh — Dated: 26 June 1984