AN02 Federal Court Decision in Newson

Advisory from Compensation Policy Group

No. 2/2008

FEDERAL COURT DECISION IN NEWSON

This Advisory should be considered in conjunction with Advisory AN04/2003 – Federal Court Decision in Kattenberg – material contribution, aggravation, or the “but for” test.

Summary

The Repatriation Commission v Newson [2008] FCA 401 (Newson) case clarifies the requirement in cl 5 of the Statements of Principles (SOPs) that the various factors set out in the SOPs “must be related to any relevant service rendered by the person”.

The central issues considered in Newson were:

• what elements of a factor must relate to service; and
• when does the period for clinical onset (or worsening) first start to run?

The Newson decision clarifies that:

• service must relate to each of the requirements contained within a factor; and
• where clinical onset (or worsening) must occur within a specified timeframe, that timeframe starts running from the end of the period of such physical activity (or exposure, etc.) which overlaps with (or is otherwise related to) service.

Facts

The Federal Court case related to an appeal by the Repatriation Commission (the Commission) against an Administrative Appeals Tribunal (AAT) decision to accept liability for Mr Newson's osteoarthrosis (OA) of the right hip and both knees.  Mr Newson had rendered eligible service in the Royal Australian Air Force as a fitter for c4.5 years (3 November 1942 - 6 January 1947).  The standard of proof that applied was reasonable satisfaction (balance of probabilities).  The relevant SOP factors were:

(j)  for osteoarthrosis of a hip or knee joint lifting loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of osteoarthrosis in that joint, and where such physical activity has ceased, the clinical onset of osteoarthrosis has occurred within the 25 years immediately following such activity; or

(k)  for osteoarthrosis of a knee joint, kneeling or squatting for at least one hour each day on more days than not for at least two years before the clinical onset of osteoarthrosis in that joint, and where such physical activity has ceased, the clinical onset of osteoarthrosis has occurred within the 25 years immediately following such activity; or

The AAT had accepted both conditions as war-caused.  The basis of the Commission appeal submission to the Federal Court was that the AAT had failed to explain how Mr Newson's lifting, kneeling or squatting in his post-service employment as a carpenter and joiner was causally related to his relevant service.  Heavy lifting had ceased in 1967; and kneeling and squatting in 1989.  The AAT found that the clinical onset of OA hip was sometime between 1981 and 1991; and OA knees at least 1999.

Court's consideration

Firstly, Edmonds J confirmed that relevant service must relate to the “anterior terms of the factors”.  In other words, it is not sufficient for service to relate to a generic activity such as “lifting” or “kneeling or squatting”.  Instead the relevant service must relate to the each of the requirements of the factor.

Secondly, His Honour concluded that this required the periods referred to within the factors – “within any 10 year period” and “for at least two years” – to encompass at least part of a period of relevant service.  Otherwise there could be no relationship between the conditions claimed and the relevant service.

B — oth factors required clinical onset to have been “within the 25 years immediately following such activity” [emphasis added].  A central issue was when the 25 year period, within which clinical onset must occur, first starts.  The AAT was of the view that the start date for this 25 year period began when the generic activity described within the factor – “lifting” or “kneeling or squatting” – ceased, even if this cessation did not occur until years after the expiration of the 10 year period that could be related to service for factor cl 5(j) or 2 year period that could be related to service for factor cl 5(k).  Therefore, according to the AAT, the 25 year period within which clinical onset must occur started in 1967 for OA of the hip and 1989 for OA of the knees.

In contrast, Edmonds J was of the view that the start date for the 25 year period began immediately following the 10 year period that could be related to service for factor cl 5(j) or 2 year period that could be related to service for factor cl 5(k). Edmonds J took Mr Newson's last year of service from 1946 to 1947 as being the starting point for the 10 year period and 2 year period, this being the latest period (and therefore closest to clinical onset) in which all of the elements of the factor (i.e. “such activity”) overlapped with relevant service.  Therefore, for the factors to be satisfied and related to Mr Newson's relevant service, the clinical onset of OA of the right hip and OA of both knees would need to have been before 1980 and 1972 respectively.  This aspect of the SOP factor was not met as clinical onset of OA of the hip was sometime between 1981 and 1991;  and OA of the knees at least 1999.  As such, the Commission's appeal was allowed with costs.

Attachments

Diagrams illustrating the application of the OA SOP factors in the Newson case are found in Attachments A and B.

Sean Farrelly

National Manager

Compensation and Income Support Policy Group

   September 2008

Attachment A:  Federal Court's Application of Factor cl 5(j) to Mr Newson's Osteoarthrosis of the Right Hip [accessible to DVA staff only]

Attachment B:  Federal Court's Application of Factor cl 5(k) to Mr Newson's Osteoarthrosis of the Knees [accessible to DVA staff only]