FEDERAL COURT OF AUSTRALIA Onger v Repatriation Commission [2002] FCA 1525 ADMINISTRATIVE LAW – whether Administrative Appeals Tribunal erred in finding that applicant's back condition was not related to his operational service – whether medical evidence upon which Tribunal relied was highly speculative GEORGE ONGER v REPATRIATION COMMISSION No Q 152 of 2002 SPENDER J BRISBANE 6 DECEMBER 2002 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 152 OF 2002 BETWEEN: GEORGE ONGER APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: SPENDER J DATE OF ORDER: 6 DECEMBER 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 152 OF 2002 BETWEEN: GEORGE ONGER APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: SPENDER J DATE: 6 DECEMBER 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an appeal from a decision of Deputy President D.W. Muller in the Administrative Appeals Tribunal ("the Tribunal") of 11 September 2002 where the Tribunal determined, relevantly, that the correct diagnosis of the condition in respect of which the claim was made was diffuse idiopathic skeletal hyperstenosis (DISH) syndrome; that the applicant was on "operational service" while on surveillance duty in Malaysian waters on or about 15 July 1959; and that the applicant's back condition was not related to his operational service. 2 The matter in the Tribunal had been heard by Deputy President Breen, but judgment had not been given at the time when Deputy President Breen retired from the Tribunal. With the consent of the parties it was agreed that the matter would be concluded by Deputy President Muller giving judgment on the basis of the material that had been led before Deputy President Breen. That, of course, had the consequence, of which the parties would have been aware and Mr Muller would have been aware, that Mr Muller was being asked to determine the matter in circumstances where he had not had the opportunity of seeing the witnesses, including Mr Onger, give oral evidence. That disability, however, does not loom large in my view in the present case, because the Tribunal expressly found and proceeded on the basis that Mr Onger was an honest and reliable witness and his account of the events which he said occurred in July 1959 was correct. 3 Mr Onger said that on or about 15 July 1959 an incident occurred when a boat, the Tobruk, struck a sandbar, and in attempts to free the Tobruk from the sandbar his lumbar region was hit by the boat and he went under the water. According to the findings of the Tribunal, once on board the Tobruk Mr Onger noticed that his back had "stiffened up". He was unable to climb into his hammock. He went to the sick bay on the Tobruk and the ship's doctor sent him to the British shore base medical centre. He was there hospitalised at RNSQ Terror. 4 The official records show that Mr Onger was admitted to RNSQ Terror on 17 July 1959 suffering from "influenza". He spent eight days in hospital. There is no official mention in the RNSQ records of back problems. Mr Onger told "the hospital doctors" (which may be a reference simply to the medical persons treating him) about his accident and his stiff back. They told him he only had a superficial graze and that the stiffness was due to influenza. He was discharged fit for duty on 25 July 1959. 5 The Tribunal made express reference to the fact that the first mention of back problems in the official records of Mr Onger occurred on 6 June 1966. At that time, Mr Onger had a back spasm while he was sitting at home with his children. 6 The Tribunal had reference to instrument No. 27 of 1999, the Statement of Principles (SOP) concerning lumbar spondylosis. Express reference is made to clause 8 of that SOP which provides: "For the purposes of this Statement of Principles: 'trauma to the lumbar spine' means a discrete injury to the lumbar spine 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 lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset." 7 The Tribunal accepted that Mr Onger suffers from a generalised and advanced degenerative condition involving his lumbar spine (DISH syndrome). However, the Tribunal found that this condition was constitutionally based and was not caused by any injury to his spine, nor by anything that happened to him while he was in the Navy. There is no reasonable hypothesis linking the causes of his back condition to his Naval service. Having reached that conclusion about the cause of the DISH syndrome from which Mr Onger was found to be suffering, the Tribunal said at par 13: "The only matter which remains for consideration is whether the injury which Mr Onger suffered in July 1959, accelerated or aggravated the naturally occurring degeneration, suggested as a possibility by Dr Sharwood." 8 It is the rejection of that possibility that Mr Onger claims is the first error which the Tribunal committed. The Tribunal continued: "The other problem is that the SOP for lumbar spondylosis envisages that for trauma to have played any part in the lumbar degeneration, it must have been significant enough to produce acute symptoms and signs with altered mobility or range of movement, for a period of at least seven days." In respect of that requirement, the Tribunal found at par 14: "The Tribunal finds that the degree of trauma experienced by Mr Onger in July 1959, was not sufficient to satisfy the SOP for lumbar spondylosis, nor did it make a material contribution to, or aggravate, his generalised degenerative condition." That finding is a finding on the evidence before the Tribunal. It seems to me, notwithstanding the submissions made by Mr Hume on behalf of Mr Onger in respect of the two matters of complaint on the appeal, that the evidence before the Tribunal was insufficient to satisfy the essential requirement concerning trauma to the spine imposed by cl 8 of the SOP relevant to lumbar spondylosis. When one looks at the matter, even as benevolently as one may, there simply is no evidence on which the Tribunal could find, contrary to the finding which it did make, that there had been an injury which produced acute symptoms and signs with altered mobility or range of movement for a period of at least seven days. 9 Mr Onger did not advance his case in that regard in the oral evidence he gave to the Tribunal. He said: "What had happened was I felt that I hit my back or something at the back hit on the A-bracket of the boat or perhaps some part of the propeller, I don't know. … To get out of the boat after I'd banged my back, I mean, they all sort of jumped on board because they were on the higher ground, if you like, they had to sort of pull me up because I know I had hurt myself, but at the time I was more concerned about getting into that boat and getting out of there. So as a consequence it sort of stiffened up because, you know, the water was cold and you are in wet clothing." 10 He then said that he was sent across to the HMS Terror, the naval depot of the Royal Navy, and: "… I was then diagnosed with flu. I was then laid in bed for about eight or nine days. I can't remember. After the flu - after I was discharged from hospital I went back to the HMAS Tobruk." His counsel asked him: "You were complaining of back pain, you said?---Yes. Okay. And you were sent to Tobruk for what purpose? Sorry, to Terra,[sic] for the purpose of: was it your back, or was it your ‑ ‑ ‑?---To get - no, check - to get checked out, because ‑ ‑ ‑ Checked out for what?---It was an onset - apparently it was an onset of the flu, and it just - all arms and, you know, all your moving joints sort of started to get stiffened up, and I was then sent to the depot. … I was taken to the – into the ward, laid down, and the doctor came up and a nurse, or whatever, or whoever was with him, came up, and said, 'Well, we're going to go and have a look and see what's wrong with you. How you', you know, the usual, 'How are you feeling?' type of thing, and I said, 'Well,' - I said, 'Well, you know, I've sort of – I've got a – I'm sort of crook all over, type of thing, but I've banged my back as well.' I think you will find that if you look closely at my back - my spine, you will see scarring. Anyway, when they rolled me over to have a look at it, it's the - he said, 'Oh, look that only looks superficial. It's like you've scratched yourself, or something like that,' and but he said, 'the reason why you feel stiff all over, is because you have got the flu - a bad case of the flu.' I must admit, apart from my back being crook, my arms and shoulders and everything else was sore." And he later said that when he returned to the Tobruk a few days later: "... after we went back to sea and it started to rock and roll a little bit, that's when it happened for the very first time after - you know, that's when my back went." 11 Unfortunately for Mr Onger it seems to me that the Tribunal not only was entitled to find, but would have been perverse not to find, that there was no evidence which satisfied the requirement that there had been demonstrated acute symptoms and signs with altered mobility or range of movement of the lumbar spine for a period of at least seven days. That finding by the Tribunal, which is determinative of the matter, does not involve any error of law. 12 The second matter is more problematic. That consists in the rejection of the possibility suggested by Dr Sharwood that the injury which Mr Onger suffered in 1959 accelerated or aggravated the naturally occurring degeneration. The rejection by the Tribunal of that possibility involved the preference of a view expressed by Associate Professor McPhee to the view that had been expressed by Dr Sharwood, in circumstances where the Deputy President had not seen the medical practitioners give their oral evidence, and so was relying on the written transcript of that oral evidence and the reports which they had given. 13 Dr Sharwood agreed with Associate Professor McPhee that Mr Onger's condition "... is one that is likely to develop spontaneously in patients who have had no specific trauma." Dr Sharwood had no reason to doubt that Mr Onger had trauma to his back. He said that "there are plenty of people who have DISH syndrome but don't have injury". There was no way to differentiate between a person who has DISH syndrome and who has suffered no trauma, and a person who has DISH syndrome and who has suffered trauma. However, Dr Sharwood thought it was "very likely" that "there's an element of aggravation due to this traumatic injury." Associate Professor McPhee, in his oral evidence "disagreed entirely" with Dr Sharwood that there was any relationship between Mr Onger's back condition and his military service. 14 It may be accepted that observation of the witnesses might have assisted in the choice that the Tribunal had to make. 15 However that may be, the Tribunal preferred the opinion of Associate Professor McPhee that there was no element of aggravation or acceleration to Mr Onger's spinal condition because of the traumatic injury in 1959. The Tribunal said: "Apart from the fact that Dr Sharwood's suggestion is highly speculative, there is no evidence upon which it would be possible to determine what contribution, if any, was made by Mr Onger's back injury forty years ago to his current condition." 16 That, in a sense, is a false issue, because it is not necessary to determine the extent of the contribution if there had, in fact, been some aggravation or acceleration. The question of whether there was a contribution was the choice that the medical practitioners' evidence presented. The Tribunal had the invidious task of making that decision in the circumstance that the Deputy President had not seen either Associate Professor McPhee or Dr Sharwood give evidence. That course had the acquiescence of both parties. There is no error in the Tribunal preferring the opinion expressed emphatically by Associate Professor McPhee that: "There is no evidence of any nexus between DISH syndrome and injury." (That statement was of course made in the context of the condition of Mr Onger and his history.) 17 The Tribunal was entitled to conclude as it did, that there was a want of compliance with the requirements of the SOP which, in turn, was based on the absence of evidence from Mr Onger himself on this matter. Its conclusion in that regard, and its acceptance of the view of Associate Professor McPhee, provide no basis for appellable review. In the circumstances, the appeal must be dismissed. 18 The orders of the Court are that the appeal is dismissed and the applicant is to pay the respondent's costs, to be taxed if not agreed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 12 December 2002 Counsel for the Applicant: Mr R.W.G. Hume Solicitor for the Applicant: Streeting Haney Lawyers Counsel for the Respondent: Ms H. Bowskill Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 December 2002 Date of Judgment: 6 December 2002