FEDERAL COURT OF AUSTRALIA Hill v Repatriation Commission [2003] FCA 46 DEFENCE AND WAR – appeal from decision of the Administrative Appeals Tribunal – applicant's claim to have injury accepted as due to operational service – whether condition war-caused – threshold question whether whole of material before AAT raised a "reasonable hypothesis" connecting applicant's injury with circumstances of the particular service rendered – whether AAT identified the wrong issue and asked itself the wrong question Veterans' Entitlements Act 1986 (Cth) s 9(1)(a) Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 applied Craig v South Australia (1995) 184 CLR 163 at 179 applied Dinon v Repatriation Commission (1999) 29 AAD 235 at 243 cited Repatriation Commission v Hill [2002] FCAFC 192 at [59] to [61] cited BARRY JOHN HILL v REPATRIATION COMMISSION NO T6 OF 2002 HEEREY J 7 FEBRUARY 2003 MELBOURNE (HEARD IN HOBART) IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY T6 OF 2002 BETWEEN: BARRY JOHN HILL APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 7 FEBRUARY 2003 WHERE MADE: MELBOURNE (HEARD IN HOBART) THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the Administrative Appeals Tribunal made on 17 May 2002 is set aside. 1. The application of the applicant be remitted for rehearing by the Tribunal differently constituted. 2. The respondent pay the applicant's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY T6 OF 2002 BETWEEN: BARRY JOHN HILL APPLICANT AND: REPATRIATION COMMISSION RESPONDENT JUDGE: HEEREY J DATE: 7 FEBRUARY 2003 PLACE: MELBOURNE (HEARD IN HOBART) REASONS FOR JUDGMENT 1 The applicant appeals from a decision of the Administrative Appeals Tribunal (AAT) made on 17 May 2002 which affirmed a decision of the Repatriation Commission dated 4 June 2000, also affirmed by the Veterans' Review Board (VRB), rejecting the applicant's claim to have a lumbar invertebral disc prolapse accepted as due to operational service. 2 The question before the AAT was whether the claimed condition was war-caused, that is to say whether it resulted from an occurrence that happened while the applicant was rendering operational service: Veterans' Entitlements Act 1986 (Cth) (the Act) s 9(1)(a). The standard of proof was that required by s 120 (1) of the Act; the AAT (standing in the shoes of the Commission) had to be satisfied beyond reasonable doubt that there was no sufficient ground for making a determination in the applicant's favour. 3 However, the threshold question posed by s 120(3) was whether the whole of the material before the AAT raised, in its opinion, a "reasonable hypothesis" connecting the applicant's injury with the circumstances of the particular service rendered by him. 4 Since the applicant's claim was made after 1 June 1994 it was affected by s 120A. Relevantly for present purposes, a hypothesis will only be reasonable if there is in force a Statement of Principle (SoP) determined by the Repatriation Medical Authority that "upholds" the hypothesis: s 120A(3). 5 The applicant served in the Royal Australian Navy from 1963 to 1972. He performed operational service when serving aboard HMAS Yarra in Vietnamese waters from 25 April to 9 May 1966 and from 26 May to 9 June 1966. 6 On 21 March 1966, that is before commencing operational service, he injured his back while working in the wardroom galley. He was straightening out after stooping and fell backwards and struck his back on a banana box. The injury was described as "slipped disc (minimal subluxation)". He spent seven days in a Naval hospital. He felt pain in the lower back and further down his right side from the waist towards the knee. He returned to duties aboard his ship still experiencing slight pain but tended to disregard this, feeling that his duties were important and expected of him. He sought minor medication from the medical officer when necessary. 7 On 27 May 1966 the applicant was descending a ladder on board Yarra when he slipped and fell a distance of about five feet to the deck. He landed on his feet but then fell forward injuring his shoulder when it hit the upright stauncheon on the ship. He experienced a sharp pain in the right shoulder. He did not seek any medical attention at that time but the pain got slightly worse and the other cooks on board persuaded him to go and see the medical officer. There was pain in the top of the right shoulder and also pain in the back, although not as bad as after the first incident. He said: "It was sort of every now and then you would get a sharp stab pain across the back and then from more or less the waist down into the right leg". 8 By and large he continued with his duties. There were only a few cooks on the ship and it was "near impossible" to go onto light duties. 9 The condition has lasted ever since. On occasions his back has locked up and he has not been able to move. He has had analgesics prescribed and also undergone physiotherapy. 10 In cross-examination he said that after the second incident he was prescribed light duties but the ship was "so close-knit and it only carrie(d) enough people to carry out the duties which (were) needed to run the ship", so he went back to the Officers' galley. He carried out the same duties as beforehand "under difficulties". When asked to describe those difficulties he said "Well, I mean, one of the things is that if – you can sort of stand in one place and put up with pain. Some people don't do it and some people do do it. If you are dedicated to your job you will do lots of things that you don't tend to do." 11 In re-examination the applicant said that after the second fall he was prescribed pain killers, an aspirin or Disprin. He would take "a couple of a morning, or a couple at lunch time and, whatever, that you don't like going over whatever the prescribed amount is, so kept within the limits of say six to eight a day". He needed these to control the pain. He had been taking pain killers between the time of the first and second fall. 12 Evidence was given by the applicant's general practitioner, Dr Gregory Pitt. The applicant had first consulted him about a back problem on 30 December 1993. The applicant had at that stage only told Dr Pitt about the first incident. A summary of the applicant's evidence about the second incident was put to Dr Pitt and he said that this could well have made his condition worse. 13 In cross-examination Dr Pitt said: "…it is well-documented that he had a slipped disc and not long after that he had another injury, … and I am sure that would have made his original injury a lot worse." 14 Dr Pitt agreed however that he had absolutely no idea of the severeness of the second incident. 15 The relevant SoP concerning intervertebral disc prolapse was no 130 of 1996 as amended by no 92 of 1997. Clause 4 provides that the factors set out in at least one of the paragraphs in cl 5 must be related to any relevant service rendered by the person. Clause 5 provides the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting intervertebral disc prolapse with the circumstances of a person's relevant service and includes: "(g) suffering trauma to the relevant disc at the time of the clinical worsening of intervertebral disc prolapse." 16 "Trauma to the relevant disc" is defined to mean "… an injury to the particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility or altered range of movement of that part of the spine, which persists for at least two weeks, unless medical intervention has occurred (for example bracing, corticosteroid injection, surgery) … Examples of activities or events that may result in trauma to the relevant disc include …" A number of examples are given. The only one relevant is "(iii) a fall". 17 The AAT said at [19]: "It is uncontested that Mr Hill injured his back in a fall aboard HMAS Yarra on or about 21 March 1966, subsequently requiring hospitalisation. But this was several weeks before operational service commenced on 25 April 1966. If Mr Hill can be believed (and he appeared a truthful witness) a second fall occurred on the same vessel on or about 27 May 1966, but there is no clear medical evidence of a back injury or aggravation at that time. If his word is accepted then the query is whether the second fall, during operational service, really can be regarded as causative of a significant medical problem." (Emphasis added) 18 After paraphrasing the statement in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 the AAT continued at [21] (emphasis in original): "Taken at face value the evidence before the Tribunal might raise a reasonable hypothesis that a back injury caused by an initial fall could be linked to and causative of further injury following a second fall. But in terms of the Act, the initial fall suffered by Mr Hill occurred prior to operational service, thus only the issue of aggravated injury caused by a second fall can be considered, as well as the general context. 22. As a delegate of the Department of Veterans' Affairs noted in his determination of 24 November 2000, the relevant initial SoP concerning intervertebral disc prolapse is No 92 of 1997. More correctly stated, the relevant SoP is No 130 of 1996 as amended by No 92 of 1997. In Mr Hill's case there is no history of cigarette smoking or of lifting at least 10kg over sustained periods, thus the decision is primarily concerned with trauma due to injury and whether any clinical worsening occurred. 23. Clinical worsening is defined as: "… Worsening of intervertebral disc prolapse would be indicated by a significant and permanent increase in the severity or frequency of symptoms or an increase in the need for mediation or other forms of treatment." Having sought a medical opinion from Dr Henry Brigden, Department Medical Adviser, the delegate received comment as follows: "… Clearly he (Mr Hill) had a significant incident in 1996 which may have been subject to an exacerbation later that year. However, had any really significant condition been present in mid 1996, he would have had significant episodes and deterioration which clearly did not occur." The delegate agreed there was no medical evidence of serious worsening and considered that overall the evidence did not raise a reasonable hypothesis connecting lumber intervertebral disc prolapse and operational service. He was unable to accept it as war-caused. The VRB came to a similar conclusion. 24. The Tribunal notes that Instrument No. 92 of 1997 elaborates the phrase "trauma of the relevant disc as meaning an injury which gives rise to immediate pain, tenderness and reduced mobility or altered range of movement which persists for at least two weeks unless medical intervention occurs." There is no specific medical evidence concerning the immediate outcome of Mr Barry John Hill's second fall, but he continued to serve in the Navy until 24 November 1972, presumably judged fit for full duties. In these circumstances, it cannot be argued Mr Hill meets the criteria specified in the relevant SoP and thus his application fails." 19 In my opinion, the AAT made an error of law in that it identified the wrong issue and asked itself the wrong question: Craig v South Australia (1995) 184 CLR 163 at 179. Paragraph 24 is the only part of the AAT's decision which contains its own reasoning. It was of course under an obligation to consider the claim afresh, on the material before it. It was not sitting as an appellate body reviewing the decisions of the delegate or the VRB. 20 In the paragraph in question, the AAT appears to be deciding on the truth or otherwise of the proposition that the applicant suffered "trauma of the relevant disc" in the second incident. That this is so is confirmed by the passage emphasised in [19] of the reasons. However the AAT was required, at this stage of the process, to consider his claim without making any judgment as to its truth: Dinon v Repatriation Commission (1999) 29 AAD 235 at 243, Repatriation Commission v Hill [2002] FCAFC 192 at [59] to [61]. The AAT's task was to consider whether the material before it raised or pointed to the relevant hypothesis of connection. 21 This error invalidates the decision, whether or not the AAT would have reached the same conclusion if it had asked itself the correct question: Hill at [67]. 22 The appeal will be allowed and the decision of the AAT set aside. The application of the applicant will be remitted for rehearing by the AAT differently constituted. There will be an order that the Commission pay the applicant's costs, including reserved costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 7 February 2003 Counsel for the Applicant: R M Webster Solicitor for the Applicant: R M Webster Counsel for the Respondent: P Hanks QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 December 2002 Date of Judgment: 7 February 2003