Bruce and Repatriation Commission [1999] AATA 149 (12 March 1999)

Last Updated: 18 March 1999

DECISION AND REASONS FOR DECISION [1999] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T97/125

VETERANS' APPEALS DIVISION )

Re PETER MAXWELL BRUCE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr C P Webster (Senior Member)

Date 12 March 1999

Place Hobart

Decision The Tribunal sets aside the decision under review and in substitution therefor a decision that the applicant is suffering from a disability, namely cervical spondylosis which was caused by the applicant's eligible war service, namely his service in Namibia. That the date of effect of this decision is to be 29 April 1996.

[Sgd C P Webster]

Senior Member

CATCHWORDS

Veterans' Affairs - acceleration of disease - whether caused by war service.

Veterans' Entitlements Act 1986 - s.9

Langley v Repatriation Commission (1993) 115 ALR 51

REASONS FOR DECISION

12 March 1999 Mr C P Webster (Senior Member)

The Issues

1. Mr. Peter Maxwell Bruce ("the applicant") has sought a review of a decision of the Veterans' Review Board dated 30 July 1997 which varied a decision of a delegate of the Repatriation Commission by amending the diagnosis of the claimed disability to cervical spondylosis, but otherwise rejected the applicant's claim that his condition (cervical spondylosis) was caused by eligible war service.

2. The issue to be determined is whether the condition of cervical spondylosis was caused or contributed to by the applicant's service in the Australian Army between 20 February 1989 and 9 September 1989.

3. It was agreed by the parties that as the applicant rendered peacekeeping service during the period 20 February 1989 to 9 September 1989, the standard of proof in respect of that period is that contained in s.120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"), and that s.120A of the Act applies, the applicable Statement of Principle being No. 161 of 1996.

The Evidence

4. The 'T' documents were tendered into evidence together with a medical report of Mr. F. G. Binns, orthopaedic surgeon, dated 18 March 1998, and a statement from Lt. Colonel Spencer dated 17 November 1997.

5. The applicant gave oral evidence and was cross-examined.

6. His evidence was as follows:-

(a) He was born on 2 July 1935.

(b) He served in the Australian Army (Army Reserve) in Namibia from 20 February 1989 to 9 September 1989 in the peacekeeping force.

(c) In February 1989 he was deployed with an advance party and was ordered to go north as an armed escort.

(d) He travelled in an old Land Rover, with no seat belts fitted in the rear of that vehicle. The road was rough and the driver was driving quickly and as a result the applicant was thrown around the vehicle.

(e) The driver of the vehicle suddenly braked and swerved to avoid running a road block which had been set up on a blind corner. The braking caused the applicant to hit his head on the top bar of the Land Rover.

(f) As a result the applicant immediately experienced a very painful neck and later that night felt stiffness in the neck and pain. He complained about the pain at camp and later upon his arrival at headquarters complained of the pain to his superior officer.

(g) The pain and stiffness was continuous for one week during which time the applicant took pain-killers. Later the pain and stiffness continued intermittently.

(h) Since his return to Australia the applicant has experienced pain and clicking in his neck which has become worse, so that he now has repeated headaches and pain in his right shoulder.

(i) The applicant had suffered no previous pain to his neck other than pain he suffered to the neck in the late 1950's for one week following a game of football.

(j) The applicant presently suffers from a stiff and painful neck and the movement of his right arm is adversely affected.

7. The Tribunal found the applicant to be a credible witness and accepts his evidence as truthful. The Tribunal accordingly finds as fact the matters referred to in paragraphs (a) to (j) inclusive above.

Application of the Law

8. The first matter the Tribunal has to consider is whether the applicant has established a hypothesis that his medical condition was caused or contributed to by his eligible war-service.

9. The respondent has conceded that for the determination of this question the evidence adduced by the applicant would satisfy the relevant Statement of Principle.

10. The Tribunal considers that a hypothesis has been raised and that the hypothesis is reasonable.

11. Having decided that the hypothesis is reasonable, the Tribunal must allow the claim, unless satisfied beyond reasonable doubt that there is not sufficient ground for making that determination.

12. In considering that question, the Tribunal is required to apply a test of proof beyond reasonable doubt, that is, whether the Tribunal is satisfied beyond all reasonable doubt that the facts upon which the hypothesis is based are untrue.

13. The Tribunal has already stated that it accepts Mr. Bruce's evidence as truthful. It follows that it is not satisfied beyond reasonable doubt that the factual matters stated by him are not correct.

14. As far as the medical evidence is concerned there appears to be a difference of opinion between Mr. F.G. Binns and Mr. Clements, both orthopaedic surgeons, as to the effect of the applicant's war service upon his cervical spondylosis.

15. Neither surgeons gave oral evidence and the Tribunal is left to decide between the written opinions of both surgeons whose opinions, on their face, appear reasonable. The Tribunal in these circumstances cannot be satisfied beyond reasonable doubt that Mr. Binns' opinion is not correct and therefore must accept his opinion.

16. Mr. Binns in his report of 18 March 1998 states:-

"I do not think that the incident with the Land Rover in 1989 has caused his cervical spondylosis. However there is no doubt that he has some deformity of the 6^th cervical vertebra and this may well present an old healed fracture. If he had had a fracture then this would undoubtedly made his cervical spondylosis worse. This would mean that he is in his present situation earlier than he otherwise would have been if he had not had the fracture."

17. Mr. Binns is of the opinion that the incident in Namibia accelerated the onset of cervical spondylosis.

18. Section 9(1)(b) of the Act includes as a war-caused injury the acceleration of the contraction of a disease. It is not necessary that aggravation of the disease also be proved (see Langley v Repatriation Commission 1993 115 ALR 51 at p.62).

Determination

19. That the decision of the Veterans' Review Board dated 30 July 1997 be set aside and substituted with a decision that the applicant is suffering from a disability, namely cervical spondylosis which was caused by the applicant's eligible war service, namely his service in Namibia. That the date of effect of this decision to be 29 April 1996.

I certify that this and the 5 preceding pages are a true copy of the decision and reasons for decision herein of Mr C P Webster (Senior Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 17 February 1999

Date of Decision 12 March 1999

Counsel for the Applicant

Solicitor for Applicant Mr Michael Daly (Rae and Partners)

Counsel for the Respondent

Solicitor for the Respondent Mr M Castle (Department of Veterans' Affairs)