Ward and Repatriation Commission [1999] AATA 729 (30 September 1999)

Last Updated: 30 September 1999

CATCHWORDS - VETERANS' AFFAIRS - whether applicant rendered operational or eligible service - whether applicant's osteoarthritis of hips and spine arose out of, or was attributable to, service - decision affirmed.

Veterans' Entitlements Act 1986 - Ss 5D, 6, 6A, 6B. 6C, 6D, 6E, 6F, 7, 8, 9, 14, 17, 19, 120, 120B

Repatriation Commission v Smith (1987) 74 ALR 537

DECISION AND REASONS FOR DECISION [1999] AATA 729

ADMINISTRATIVE APPEALS TRIBUNAL )

) Q1998/1174

VETERANS APPEALS DIVISION )

Re ROY ERWIN WARD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss S A Forgie (Deputy President)

Mr I R Way (Member)

Dr J M Lawrence (Member)

Date 30 September, 1999

Place Brisbane

Decision The Tribunal affirms the decision of the Repatriation Commission dated 29 August, 1994 and affirmed by a decision of the Veterans' Review Board dated 25 August, 1995.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 12 June, 1996, the applicant, Mr Roy Erwin Ward, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 29 August, 1994. The Commission's decision, which rejected Mr Ward's claim for osteoarthritis of his spine and hips, was affirmed by a decision of the Veterans' Review Board dated 25 August, 1995. It was reviewed by this Tribunal in a decision dated 11 March, 1998. An appeal from that decision was allowed by the Federal Court on 21 October, 1998 and the matter was remitted to a differently constituted Tribunal to be reheard.

2. At the re-hearing, Mr Ward represented himself and the Commission was represented by Miss Ford of counsel. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a copy of the transcript of the earlier hearing in the Tribunal. Also admitted were a number of other documents to which we will refer in the course of these reasons. Mr Ward gave oral evidence in support of his case. No oral evidence was led in support of the Commission's case.

THE ISSUES

3. There was one primary issue in this case. That was whether Mr Ward's osteoarthritis of his spine and hips is a war-caused disease or injury within the meaning of the Veterans' Entitlements Act 1986 ("VE Act"). In determining that issue, it is necessary to determine whether or not Mr Ward has operational service within the meaning of the VE Act and, if so, the extent of that service. It is also necessary to determine whether Mr Ward's osteoarthritis of his spine and hips resulted from an occurrence that happened while he was rendering operational service or whether it arose out of, or was attributable to, any operational service he rendered.

BACKGROUND

4. Based on both the written and oral evidence, we have found that Mr Ward was born in Australia on 21 January, 1922. He has also been known as Mr Roy Lawler as that was the name of his stepfather.

THE EVIDENCE

Operational service

Mr Ward

5. Mr Ward said that he was an only child who stayed with his mother when his parents separated. He worked in his school holidays with a boat builder and worked with him when he left school at 12 years of age. Mr Ward said that he later put his age up to 20 and joined the Allara. He went on one trip with the Allara and then joined it. The work on the ship, however, was not suitable. He tried to get work as a boat builder but did all of his work as a trimmer. On his penultimate trip, he worked as a fireman.

6. In an affidavit sworn on 17 April, 1998 (T documents, page 93) and again in giving his oral evidence, Mr Ward said that he joined the maritime union. In his affidavit, he said that he joined in May, 1942 and remained a member until May, 1943.

7. Mr Ward gave evidence that three Dutch vessels had been handed to the Australian authorities during World War II. One was the Swartenhondt and another was the SS Allara. He said in a statutory declaration dated 12 July, 1994 that he served on the Swartenhondt from 3 June, 1942 until 19 September, 1942 (T documents, page 19). He said in giving oral evidence that he signed on the ship in Sydney. That was then his home port. He could leave the ship when it returned to his home port but, apart from that, the only way he could leave it was if he were to become ill. Mr Ward said that he became ill when he was in Cairns and signed off the ship on medical grounds. He returned to sea again when a convoy was formed in Townsville. Mr Ward said that he undertook a final trip to Port Moresby but was still sick when he returned from that trip. He was away about eight or ten days.

8. When he returned from sea, Mr Ward said in his oral evidence (and also in his affidavit of 17 April, 1998 (T documents, pages 93-94), his call up papers to serve in the Australian Army were waiting for him. He told the authorities that he was in the merchant navy and he was told that he had a week to return to sea. As he did not return to sea, Mr Ward decided to join the Royal Australian Air Force ("RAAF") as a boat builder.

9. Mr Ward said that he was particularly hurt by the Commission's actions in recognising only such a short period of operational service. He had been accepted as a member of the RSL as soon as the war was over. The RSL accepted his service with the merchant navy long before the Commission. Mr Ward said that he was one of the founding members of the Port Macquarie RSL. Over the years, he has been Assistant Secretary of the Port Macquarie RSL.

Documentary evidence

10. The Commission's records showed that Mr Ward had two periods of eligible war service. The first was on board the Dutch ship, the Swartenhondt, from 28 August, 1942 until 3 September, 1942 and the second was with the RAAF from 28 October, 1942 until 28 September, 1945. In addition, the Commission's records showed that he had operational war service on board the Swartenhondt from 5 September, 1942 until 23 September, 1942. (T documents, page 4) A letter from the Commonwealth Department of Transport dated 11 April, 1983 confirmed the dates on which he served on the Swartenhondt.

11. A letter from the Directorate-General for Shipping and Maritime Affairs dated 1 June, 1994 was addressed to Mr Ward in the name of Lawler which is a name under which he has also been known (T documents, page 14). That letter stated that his name had not been found in the archives relating to World War II. A copy of the movements of the Swartenhondt was enclosed and confirmed that it had sailed to and from Townsville and to and from other ports in the region.

12. A letter from the Institute for Maritime History in the Netherlands was written to the Department of Veterans' Affairs on 3 December, 1998. That letter confirmed the movements of the Swartenhondt set out in the previous paragraph and enclosed a clear copy of the ship's log during the relevant periods from February, 1942 until February, 1945 (T documents, page 131-135). The ship's log shows that the Swartenhondt left Sydney on 25 May, 1942. It sailed to various ports including Brisbane, Townsville, Bowen and Port Morseby before returning to Sydney on 4 October, 1942. There is no record of the ship's having sailed to Cairns in that period but it did visit Townsville on several occasions.

13. In particular, it was in Townsville on 3 June, 1942 and on 19 September, 1942 (T documents, page 133). They were the dates between which Mr Ward said he served on the Swartenhondt. The ship was in Townsville between 13 and 18 June, 1942. From there, the Swartenhondt visited Port Moresby on 21 June, 1942 before returning to Townsville on 25 June, 1942. These dates are consistent with those set out in the report of Lieutenant Colonel JE Bullen (retd) (Exhibit 2). The Swartenhondt next sailed to Port Moresby on 8 September, 1942. It remained there until 16 September, 1942.

14. In June, 1942, and shortly before the Swartenhondt sailed to Port Moresby on the first occasion, the Macdhui was attacked and ultimately destroyed by Japanese bombers (Australia in the War of 1939-1945, Series Three, Air, Volume 1, Royal Australian Air Force 1939-1942, T documents, pages 140-141 and see also Australia in the War of 1939-1945, Series Two, Navy, Volume II, Royal Australian Air Navy 1939-1942, T documents, pages 144-145). There is some doubt as to the precise dates in June on which the attacks occurred. While both publications give consistent accounts, the former refers to their occurring on 16 and 17 June, 1942 and the latter to 17 and 18 June, 1942. This discrepancy was explored by Lieutenant Colonel Bullen who stated in his report that he had investigated primary sources in the Official Records Collection in the Research Centre of the Australian War Memorial. He relied on the Weekly Reports of the 3^rd Australian Light Anti-Aircraft Group at Port Moresby in concluding that the Japanese attacks had occurred on 17 and 18 June, 1942 (Exhibit 2).

Cause of osteoarthritis of spine and hips

Mr Ward

15. Mr Ward said in giving evidence that he had trouble with his spine and hips ever since the war. It could have been caused through trauma or his being hurt. He pointed to two instances in particular which could have been the cause of his osteoarthritis.

16. The first instance related to his getting out of a train at the Cairns railway station on 4 May, 1943. There was no platform as such and he had to leave the train by means of a ladder. The distance from the train to the ground was approximately 10 feet. Mr Ward was carrying a full pack, he said in his statement (Exhibit A, paragraph 5). While he was leaving the train backwards at 1am, Mr Ward said in giving his oral evidence, he lost his footing. He fell face down and straddled the line. In doing so, he injured his groin. He reported at the camp and immediately saw a doctor. His fall had been documented. In his statement, Mr Ward said that he hurt all his lower back and continued:

"I was signed into camp and I complained then of my pain and asked to see the Doctor regarding the pains in my kidneys and my side. I think on the record they recorded pain in my kidneys and pain in my left loin. I an (sic) sure that this fall was the start of my arthritis. I think the treatment I was given is recorded on page 31 of the Section 37 documents. I was in hospital for four to five days and given massages from what I can remember, internally and externally." (Exhibit A, paragraph 5)

17. The second instance occurred at Lindfield in October, 1942. Mr Ward said that he "dived off" the train before it had fully stopped at the station. His injuries were only superficial, he said, and he never went to a doctor about them. Both in his statement made on 14 January, 1997 (Exhibit A) and in his oral evidence, Mr Ward said that his osteoarthritis started with the fall from the troop train in Cairns. His service at that time was, he said, operational service. In addition, Mr Ward said in giving oral evidence that his heart "could have something to do with it".

18. In cross-examination, Mr Ward said that the comments made on his medical examination on 16 March, 1994 were correct (T documents, page 66). The document recorded that he was suffering from arthritis in his back, neck and hips and that he had suffered pain since 1960. His condition had been diagnosed as degenerative osteoarthritis. He had suffered from left sided pain since 1966 and from occasional sciatica in his left leg for the previous month.

Documentary evidence

19. An entry on a RAAF Sick Parade Card on 4 May, 1943 reads:

"... 0100 hrs 4.5.43 jumped out of train & strained back L. Side - complained of precipitous scalding, ... cloudiness of urine + dull aching pain in L loin.

Spec of urine to path. N.D.Q 1 day. (review at midday)

Urethral spec - negative" (T documents, page 29)

20. On 6 May, 1943, the entry read:

"O.E. - tender at tip L 12^th rib and kidney angle.

- Hard ? lymph glands palp in R & L iliac fossae.

- P.R. prostate tender.

- no radiation of pain into testicles or pelvis.

Path report - urine, no alb, casts, blood, few staph." (T documents, page 30)

21. Pyelogram x-rays were taken and revealed "no abnormality seen calyces, pelvis or ureter, or bladder, no caleuli visualised" (Exhibit 8). Entries on the card for 10 and 18 May, 1943 give a diagnosis of cystitis and pyelitis. On 11 June, 1943, the sick parade card read "pains in R loin & Scalding cystitis ? pyelitis urine to path ... L lobe tender prostrate". Mr Ward was discharged on 16 June, 1943 and given two days sick leave. On 19 June, the sick parade card read "... on review urinalysis after prostratic massage (path for staph) - the pain complain ... in L loin is a myalgic ass with 11^th rib not the kidney OE prostrate very tender esp. L side" (T documents, page 30).

22. Mr Ward completed a questionnaire on his discharge from the Army. It was dated 12 September, 1945 and showed that he had written "none" in response to a question whether he had suffered a "...disability (wounds, disease injuries) ... whilst a member of the R.A.A.F. ..." (Exhibit 7). In response to a question whether he suffered from any other ailments of any kind, he had written "Papiloma on the scalp" (Exhibit 7).

Associate Professor Bruce McPhee

23. Associate Professor McPhee is a spinal surgeon who reported on 18 December, 1997:

"This is to confirm that I reviewed several series of x-rays of your spine, hips and knees dated from 1994 onwards. I can confirm that you have widespread and generalised degenerative disc disease throughout the cervical, thoracic and lumbar spines. The changes are maximal in the thoracic spine where there are multiple bridging syndesmophites in the middle and lower thoracic region. The findings are characteristic of DISH syndrome. I can confirm that this condition is not traumatic in origin but due to constitutional changes relating to age. The process is probably genetically pre-determined.

You also have bilateral osteoarthritis of the hips. This was present in September 1995 at which time you underwent pinning of the left hip for an alleged fracture. The bone scan confirms that you have increased uptake in both hips more so in the left than the right. There is increased uptake in the region of the femoral neck. I have reviewed a series of x-rays from May to August but cannot on any film demonstrate a fracture. The fact that there is increased uptake may be consistent with a fracture, however, increased uptake indicates only increased bone turn over activity. This may occur in osteoarthritis. I believe that, in all probability, the pain in your hip which was not relieved by pinning is due to osteoarthritis and not due to any fracture. The fact that you have bilateral osteoarthritis of the hip is more in keeping with osteoarthritis of a constitutional type and not due to drama.

I can only say that 55 years after your alleged injury while serving in the Army in 1943 is not possible to demonstrate any lesion in your spine or hips which can be specifically considered the result of any injury." (Exhibit 6)

Dr Roger Parkington

24. Dr Roger Parkington, who is an orthopaedic surgeon, wrote two reports regarding Mr Ward's condition. In his first report dated 22 October, 1996, Dr Parkington noted that Mr Ward had first presented to him with a basal left neck of femur fracture on 29 April, 1996. Mr Ward had suffered from left hip pain for the previous six months. A bone scan showed a stress fracture of the base of the neck of the left femur and he performed an internal fixation on 24 May, 1996. Dr Parkington noted that Mr Ward also had early degenerative changes in his left hip (Exhibit B, pages 25-26).

25. Dr Parkington referred to three injuries of which Mr Ward had told him:

"He said the first injury which occurred when he was struck on the back of the head by a piece of shrapnel was a superficial wound only. That wound was sutured under local anaesthetics.

In the second injury when he fell off a train, he said it was an electric train and he 'never hurt myself at all, just got gravel rash'. He said that he had jumped off the train before it had stopped and he went sprawling on the platform. He was grazed. He did not have any treatment, he carried on and had no ill effects.

In the third incident, he was climbing backwards out of a carriage wearing a pack when he fell across the adjoining railway line. He was able to get up and he was seen in hospital that day but only because of a kidney infection. He has had no other injuries." (Exhibit 1)

26. He noted that the X-rays taken in June, 1997 showed degenerative disease in Mr Ward's cervical spine, generalised lumbar spondylosis in his lumbosacral spine and minimal degenerative changes in his left knee. X-rays taken in February, 1999 showed early degeneration in both hips with a healed fracture and a sclerotic line in the neck of the left femur. There was severe cervical spondylosis as well as moderate generalised lumbar spondylosis. Dr Parkington concluded that Mr Ward has mild osteoarthritis in his right hip. He also has early degenerative disease in his left hip. Mr Ward has made a full recovery from the stress fracture of the neck of the left femur which Dr Parkington had internally fixed. In relation to the cause of Mr Ward's condition, Dr Parkington concluded:

"Mr Ward's degenerative spinal disease is age-related and he did not provide me with a history of having significantly injured his back during his war service. His most severe complaints in relation to falling out of a train seems to have been his admission with a urinary infection after the third fall on 4.5.93. He does not appear to have injured his back or had complaints in relation to his spine on that occasion.

I think the whole of Mr Ward's complaints are age-related and I cannot specifically relate them to his war service." (Exhibit 1)

Dr Frank Wyton

27. Dr Frank Wyton is a physician and surgeon who Mr Ward said he had been consulting since about 1988 (Exhibit A, paragraph 20). Dr Wyton has written three reports dated 2 November, 1996, 26 August, 1997 and 14 February, 1998. In his second report, Dr Wyton noted that Mr Ward had recounted two falls which had occurred in his adult life and which had severely traumatised his lower back, hips and knees. On clinical examination, Dr Wyton noted that Mr Ward walked with a limp, had a thoracic kyphosis and was slightly tender over the spines of the lower thoracic vertebrae. He had lost almost half of the normal range of movement in his thoraco-lumbar spine. Mr Ward's right hip had a full range of motion but external rotation was substantially reduced on the left along with a fixed flexion deformity. There was a post-operative scar on the lateral aspect of his left hip associated with internal fixation of his recent stress fracture. There was about 20 degrees loss of flexion in his left knee. X-rays revealed widespread degenerative changes in his thoracic and lumbo-sacral spines along with some degenerative changes in both hips and knees. Dr Wyton observed that Mr Ward had particularly severe degenerative disc disease in his cervical spine.

28. In response to specific questions he had been asked, Dr Wyton wrote, in part:

"2 The aetiology of osteoarthritis is considered to be related to degenerative changes in the joints related to aging, trauma, heredity and pre-existing dispositional joint problems such as rheumatoid arthritis and gout. Mr Ward does not suffer from any pre-existing dispositional joint disorder. However he does recount a history of severe trauma to his back and hip during service, and I believe it is impossible to discount severe trauma as playing some role in his present disability. However it is likely that any such causative role would be minor and difficult to establish.

3 There may well be a causative link, to the requisite standard of proof, if any of the severe trauma that Mr Ward suffered occurred during operational service. From the dates of the falls supplied to me, however, it appears that, at the times of both falls, Mr Ward was not engaged in operational service. Therefore, with respect to the falls that did occur during eligible service the 'balance of probabilities' test is apposite. This test is more stringent, and it is my opinion that Mr. Ward would fail if such a test was applied by the Tribunal.

4 If Mr Ward were to contend that his heart condition caused him to fall and hurt his spine and hips, then he could argue that his orthopaedic problems were contributed to or aggravated by his accepted disability. However he has not so contended, and I see no other possible link between his accepted conditions and his osteoarthritis of hip and spine." (T documents, page 109)

Dr Wyton's other reports did not alter the views he had expressed in this passage (T documents, pages 110-115).

CONSIDERATION

Legislative Framework

29. Pursuant to sub-section 14(1) of the VE Act, a veteran may make a claim for a pension in accordance with sub-section 14(3). Once the claim has been submitted to the Commission in accordance with sub-section 17(2), it is required to determine whether the veteran is entitled to be granted a pension in respect of incapacity from a war-caused injury or war-caused disease or both (sub-section 19(3)). If the veteran is so entitled, the amount of that pension and the terms under which it is payable are determined by the VE Act.

30. A veteran's injury or disease is taken to have been "war-caused" if it meets one of the criteria specified in section 9 (sub-section 5D(2)). In so far as this case is concerned, only paragraphs 8(1)(a) and (b) are relevant. They provide that:

"(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: if:

(a) the injury suffered, or the disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b) the injury suffered, or the disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ..."

31. The expression "eligible war service" is defined in section 7 of the VE Act. Paragraph 7(1)(a) provides that a person who has rendered operational service is taken to have rendered eligible war service while he or she was rendering operational service. Sub-section 7(1)(c) is also relevant and it provides that:

"a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; ..."

32. The expression "operational service" is defined in sections 6 to 6F. Section 6B applies to Australian mariners. Only sub-section 6B(1) is relevant and it provides that:

"A person is taken to have rendered operational service during:

(a) any period of employment outside Australia as an Australian mariner on a ship; or

(b) any period of employment within Australia as an Australian mariner on a ship if that period of employment ended immediately before, or started immediately after, the period of employment referred to in paragraph (a)."

33. During his engagement on the Swartenhondt, Mr Ward was an Australian mariner as that term is defined in sub-section 5C(1) of the VE Act. Mr Ward is clearly of the view that his period of service on that ship extended from 3 June, 1942 until 19 September, 1942. The records of the Department of Transport show two periods of service which, together, are substantially shorter than the single period recalled by Mr Ward. There is no indication of the basis upon which that Department or the Commission determined the periods of Mr Ward's service on the Swartenhondt. When regard is had to the records retained in the Netherlands in relation to the Swartenhondt, however, there is no reference to his having served on the ship at all.

34. Before determining the periods during which Mr Ward had operational service we must be reasonably satisfied of those periods. That is the effect of the sub-section 120(4) of the VE Act. Having regard to all of the evidence, we have not been able to reach any determination as to the length of Mr Ward's operational service. In saying that, we do not doubt that he had operational service on the Swartenhondt as recorded by the Department of Transport and as recalled by Mr Ward. It is only the length of the service which is in doubt. We have not relied upon Mr Ward's memory of his having joined the ship in Sydney on 3 June, 1942 as it does not match the movements of the ship. The ship was in Sydney from 9 April, 1942 until 25 May, 1942 and did not return to Sydney until 4 October, 1942. That inconsistency, together with the lack of any records of Mr Ward's having served on the Swartenhondt leads us to conclude that we are unable to reach any determination as to the length of his operational service.

35. We do not need to reach any conclusion as to the length of Mr Ward's operational service while an Australian mariner for the incident at Cairns upon which he relied in the main, and the incident at Lindfield occurred at times when he was not an Australian mariner. Both incidents occurred while he was a member of the RAAF. Is his period of service with the RAAF regarded as operational service within the meaning of the VE Act? The answer to that question is determined according to section 6A as he was a member of the Defence Force. Item 1 applies to a member of the Defence Force. It does not apply to Mr Ward for he did not have continuous full-time service outside Australia, did not serve in the relevant area of the Northern Territory and did not render service in Australia in circumstances that his service should be treated as service in actual combat against the enemy.

36. It follows from this conclusion that Mr Ward was not on operational service while he was a member of the RAAF. By virtue of paragraph 7(1)(c) he was, however, rendering eligible war service during that time. The practical result of this conclusion is that Mr Ward's claim that he suffered a war-caused injury or a war-caused disease must be considered by applying the standard of proof set out in sub-section 120(4) of the VE Act rather than the more liberal standard of proof set out in sub-sections 120(1), (2) and (3). Sub-section 120(4) provides that:

"Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."

37. In certain cases, "reasonable satisfaction" must also be assessed by reference to any Statement of Principles (section 120B) but it does not apply to this case as Mr Ward's claim was made prior to 1 June, 1994. The expression "reasonable satisfaction" has been considered in Repatriation Commission v Smith (1987) 74 ALR 537 (Northrop, Beaumont and Spender JJ). Beaumont J, with whom Northrop and Spender JJ agreed, said:

"... In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. ... There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even they are real as distinct from fanciful, on the other (see Re Repatriation Commission v Delkou (1986) 12 ALD 777; Re Repatriation Commission v Falkner (1987) 12 ALD 87." (page 547)

38. Turning to the evidence in this case, we have, on the one hand, Mr Ward's clear recollection at the hearing that he suffered an injury at Cairns on 4 May, 1943 and his clear understanding that an injury on that day is the cause of his osteoarthritis of his spine and hips. On the other hand, there is no evidence in the medical records maintained in and around May, 1943 that he did injure himself. The records maintained by the RAAF show that he had told them that he had jumped from the train and strained the left side of his back. At the same time, he complained of difficulties with his urine. He was treated for the latter and it does not appear that there was any investigation of, or further complaints regarding, a back injury. There are no further entries in Mr Ward's medical records which indicate any complaints relating to any injury suffered on 4 May, 1943 or to any discomfort arising from such an injury. There are, however, subsequent entries regarding his ureter and bladder.

39. While there is no doubt among the medical specialists that Mr Ward suffers from osteoarthritis of his spine and hips, none of them supports his contention that his osteoarthritis resulted from, arose out of or was attributable to, any injury he has suffered in the past or, more particularly, from his fall at the Cairns Railway Station on 4 May, 1943. Mr Ward does not rely on his fall at Lindfield but, as it was referred to, we have considered it. Again, there is no medical evidence to support his being injured on that day and, indeed, Mr Ward did not claim that he was injured.

40. Only Dr Wyton did not discount severe trauma as playing "some role" in Mr Ward's present disability. He went on to say, however, that the role of any such trauma would be minor and difficult to establish. He did not consider that, on the balance of probabilities, any trauma suffered by Mr Ward at either Cairns or Lindfield was causative of his present condition.

41. Taking all of the evidence into account, we have formed the view that we are not reasonably satisfied that Mr Ward's osteoarthritis of his spine and hips resulted from an occurrence that occurred while he was rendering operational service or that it arose out of, or was attributable to any eligible war service he rendered.

42. Coronary artery disease and cardiac arrhthymia requiring a pacemaker have both been accepted as war-caused diseases in respect of Mr Ward. We explored with him whether he had fallen and injured himself in more recent times. The purpose of our questions was to explore whether any such falls could be linked to his heart condition and whether any injuries could be linked to his osteoarthritis. Mr Ward could not recall any such falls and, in any event, there is no medical evidence which supports our finding that he has suffered any relevant trauma since his service with the RAAF.

43. For the reasons we have given, we affirm the decision of the Repatriation Commission dated 29 August, 1994 and affirmed by a decision of the Veterans' Review Board dated 25 August, 1995.

I certify that the forty three preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President), Mr I R Way (Member) and Dr J M Lawrence (Member)

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

M Martinez Associate

Date of Hearing 2 July, 1999

Date of Decision 30 September, 1999

Applicant In person

Counsel for the Respondent Miss E Ford

Solicitor for the Respondent Australian Government Solicitor