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Britt and Defence Force Retirement and Death Benefits Board [1987] AATA 599 (24 April 1987)

Administrative Appeals Tribunal

Britt and Defence Force Retirement and Death Benefits Board [1987] AATA 599 (24 April 1987)

Last Updated: 29 January 2008

ADMINISTRATIVE APPEALS TRIBUNAL

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS - rate of invalidity pay - classification of applicant's incapacity in relation to civil employment - section 30 - whether question of issue estoppel arises in relation to decision under Compensation (Commonwealth Government Employees) Act 1971 - whether respondent can determine grounds of invalidity - applicant's disabilities included damaged left knee, gout, hypertension - consideration of kinds of civil employment available to applicant at date of retirement - consideration of respondent's power to reclassify applicant in light of present incapacity - section 34.

Defence Force Retirement and Death Benefits Act 1973 (Cth.) ss 26, 30, 34, 37

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Re Britt and Defence Force Retirement and Death Benefits Authority (1985) 7 ALD 715

Defence Force Retirement and Death Benefits Authority v Britt  [1985] VicRp 11 ; (1984) 57 ALR 199

DOUGLAS HARRY BRITT

Applicant

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

No S86/203
AAT Decision No 3607 |

Deputy President C J Bannon QC

Adelaide

24 April 1987

ADMINISTRATIVE APPEALS TRIBUNAL ) No S86/203

) GENERAL ADMINISTRATIVE DIVISION )

Re: DOUGLAS HARRY BRITT

Applicant

And: DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal : Deputy President C J Bannon QC
Date : 24 April 1987
Place : Adelaide
Decision : The Tribunal:-

(a) decides to vary the decision under review by determining that at 15 March 1977, the applicant's percentage of incapacity in relation to civil employment was greater than thirty per centum but less than sixty per centum and therefore that the applicant's initial classification under section 30 of the Defence Force Retirement and Death Benefits Act 1973 ("the Act") was Class B on and from 15 March 1977;
(b) recommends that the respondent, pursuant to section 34 of the Act, reconsider the classification of the applicant under section 30 of the Act.

C. J. BANNON

Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL ) No. S86/203

) GENERAL ADMINISTRATIVE DIVISION )

Re: DOUGLAS HARRY BRITT

Applicant

And: DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

REASONS FOR DECISION

24 April 1987 Deputy President C J Bannon QC

At the conclusion of the hearing of this application for review Deputy President C.J. Bannon QC stated orally the terms of the decision intended to he made by the Tribunal and the reasons therefor. The respondent and the applicant, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement, in writing, of the reasons of the Tribunal for its decision. Those reasons are stated below.

In this application Douglas Harry Britt ("the applicant") seeks a review of a decision of a delegate of the Defence Force Retirement and Death Benefits Authority ("the respondent") made on 16th August 1985 that on and from 15th March 1977 the applicant's incapacity in relation to civil employment was 20% and that his classification under section 30 of the Defence Force Retirement and Death Benefits Authority Act 1973 (Cth.) ("the Act") was Class C.

At the outset of the hearing of this application for review a submission was made to me that there was some question of issue estoppel arising between a decision of Mr JO Ballard, then sitting on the Commonwealth Employees Compensation Tribunal under the Compensation (Commonwealth Government Employees) Act 1971 (Cth.) and decisions arising under the Administrative Appeals Tribunal Act 1975 (Cth.). After some examination of the issues involved I was persuaded that that proposition could not stand and it was properly withdrawn.

I do not want to recite all of the facts in this matter because 'they are set out in sufficient detail in the decision of this Tribunal in Re Britt and Defence Force Retirement and Death Benefits Authority (1985) 7 ALD 715. In those proceedings the Tribunal decided that the respondent should exercise a discretion conferred on it pursuant to section 37 of the Act in favour of the applicant and remitted his application to the respondent for reconsideration in accordance with the direction that the discretion be so exercised.

I am persuaded and satisfied with the submission made to me by Mr RC Withear appearing on behalf of the respondent, that while the direction, of course, is operative the reasons expressed by Deputy President Todd and his colleagues, however persuasive, are not binding on this Tribunal because there is no such thing as issue estoppel or precedent in reasons leading to a direction by an administrative tribunal. However, of course, those reasons deserve to be treated with respect.

The respondent reconsidered the applicant's application and made the decisions which are set out in paragraph 43 of its decision in document T2/18 of the documents supplied pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth.) ("the T documents"). Those decisions are as follows:-

"The Authority resolved:

(a) to determine that the kinds of civil employment which a person with Mr Britt's vocational, trade and professional skills, qualifications and experience might reasonably undertake (disregarding all physical and mental impairments) were Nurse's Aide; Ambulance Officer and Medical Clerk (Clerical/Office Assistant/Supervisor); and
(b) to VARY the delegate's decision by determining that at 15 Mar 1977, the percentage of Mr Britt's incapacity in relation to civil employment was 25% but to CONFIRM the delegate's decision that his initial classification under section 30 of the DFRDB Act 1973 was Class C on and from 15 Mar 1977."

It is from that decision that the matter comes before me for further review.

Mr Withear, for the respondent, although conceding that the applicant suffered from disability to his left knee including the pathological condition known as gout as a disability leading to his retirement, pressed me to accept that part of the respondent's finding set out in paragraph 31 of its decision (T2 p 13) that it could not consider hypertension as one of the applicant's disabilities because that was not one of the grounds stated by the Chief of Staff of the Navy as being a ground for his retirement.

To examine that submission one has to look at Exhibit 2, which is a document of 12th October 1981, which is the determination made by the Chief of Staff and also look at T5 p22 which sets out the annexure F to Exhibit 2. As Mr Withear pointed out, there is a clerical error in Exhibit 2 and the reference to the date of annexure F to Exhibit 2 should be the date shown on the document T5 p 22. T5 p. 22, which is dated 22nd September 1981, states that the applicant had the following disabilities at the time of his discharge from the service (T5 p 22) :-

"a. Bilateral chondromalacia patellae

b. Hypertension

c. Gout

d. Probable tear of left lateral meniscus

e. Absence of left medial meniscus

f. Small left popliteal cyst."

Strangely enough, all the evidence before me establishes that the popliteal cyst was of absolutely no consequence and that the applicant probably never had any tear to the left lateral meniscus at all. That was a mistaken diagnosis. Further it is very doubtful that he ever had such a thing as bilateral chondromalacia patellae. He did, however, have some operation which removed part of the meniscus in the left knee as a result of an accident when he fell over a hatch on a naval vessel.

Undoubtedly, the applicant's real disabilities are firstly the fact that he suffers from a damaged left knee. Whether the damage be called gout, or a meniscus or a combination of those factors, need not be a matter of any great discussion in view of the very fair concession made by Mr Withear on behalf of the respondent. I am also satisfied that hypertension was a serious disabling problem which the applicant suffered from at the time of his discharge - serious not in the sense that it would prevent him working, but serious in the sense that it would certainly prevent him going to sea and needed constant medication to keep it under control. It also had and has an effect in preventing him indulging in excessive physical activity which could be dangerous for a man with that problem.

It seemed to me that there was some attraction in an argument derived from a consideration of the provisions of sections 26, 30(2) and 34(1B) that the respondent had no power to go behind a reason as signed by the Chief of Naval Staff pursuant to section 37 of the Act. However, I am persuaded that the better view appears to be that stated by a Full Court of the Federal Court in Defence Force Retirement and Death Benefits Authority v Britt  [1985] VicRp 11 ; (1984) 57 ALR 199 at 202:-

"Section 37 does not confer upon the Chiefs of Staff power to determine that a person be treated as if he had been retired on the ground of invalidity. Section 37 confers on the Chiefs of Staff only the function of determining and informing the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity. There remains a decision to be made, namely, whether, in the circumstance of the case, the member should be treated as if he had been retired on that ground."

It appears to me that the better construction of the Act, as I read the Federal Court's decision, is that the task of deciding in the exercise of its discretion whether the member should be treated as if he had retired on the ground of invalidity and deciding the causes of that invalidity are matters vested in the respondent subject to any review by this Tribunal.

. It should be noted that the list of medical problems set out in the naval document, T5 p 22, as I have already said include gout and hypertension and it may well be arguable that in any event Exhibit 2 is really saying that these are the disabilities which cause the retirement - but I need not come to that view. Although the later document set out at T5 pp 63 and 64, being a document from the Navy under the signature of Captain CJ Littleton dated 4th July 1985, seemed to narrow the grounds down the view I take is that the Federal Court has decided that the respondent has the task and the discretion of deciding what are the impairments which have caused the invalidity of the applicant.

Evidence has been placed before me that the applicant also suffers from crepitus and aches at times in his right knee. While I accept that as a fact I do not regard those matters as being incapacitating at the date of his retirement from the Navy. Therefore I propose to treat the matters of hypertension and a badly damaged left knee as being the impairments of the applicant that were the cause of the invalidity or physical incapacity by reason of which he has been retired from the Navy.

The next step is the task of classification pursuant to section 30(1) of the Act. As so often happens the evidence before me covered new ground which was not available to the respondent and it appears to me in the light of all the evidence, including the fresh evidence, that the applicant's incapacity is more serious than the respondent thought it to be. It is plain from the medical evidence to me that no role is open to the applicant whereby he could reasonably perform the duties of a nurse, and I consider that he could not reasonably be expected to undertake work involving heavy lifting or excessive pushing of heavy trollies or squatting. His hypertension, although controlled to a considerable degree by medication, precludes him from many activities and his bad knee does not permit him to carry out the more strenuous duties which undoubtedly fall to the lot of a nurse.

Further, I do not consider that the applicant is or was suitable for employment as an ambulance officer, a position which he sought from the St John Ambulance Service but was not accepted for that position. Ambulance officers, although some of their duties are not so strenuous, at times are required to carry stretchers and at times to act rather speedily in the case of an emergency, especially in accident, for example, in football.

Now that the applicant is 50 years of age his problems in obtaining employment are accentuated but it is my duty to make a determination in accordance with section 30 retrospectively to the time of his retirement from the Navy 10 years ago.

The applicant impressed me as a self-possessed man who has had considerable experience in nursing and para-medic duties with the Navy. Although his formal education was only completed to primary school level, he is a man of experience and has taken an active role in service organizations and I am impressed with the fact that he would be a real asset to a hospital in an administrative capacity. The evidence given to me by Dr PD Byrne, a surgeon, and Ms J.C. Gilbertson, a qualified nurse and head of nursing in one department of a large private hospital has persuaded me that at the age of 40 the applicant's percentage of incapacity was greater than that which would bring him within classification Class C for the purposes of section 30 of the Act but, nevertheless, it was less than would bring him within classification Class A. That is, I believe that 10 years ago the applicant's percentage of incapacity fell in the bracket 30 per centum or more but less than 60 per centum as set out in section 30(1) of the Act. I say that without going through seriatum all the matters set out in section 30(2). Evidence has been adduced before me about all those matters. I have listened to that evidence carefully. I believe that the applicant 10 years ago retained considerable skills which would have brought him within the capacity of the kinds of civil employment which I have indicated, administrative work in hospitals and that is the sort of -matter which fell within the vocational trade and professional skills qualifications and experience of the applicant.

Now, of course, as the applicant has grown older his condition has deteriorated a little bit with age. He now has problems with his right knee as well. I have formed the view that I should accede to Mr Collett's request and recommend to the respondent that it reconsider the applicant's position and that it exercises the powers that it has under section 34 of the Act and consider again the classification of the applicant as at present. It would not be proper for me to express any view as to the way the respondent should exercise its discretion under section 34. My task is solely to consider the matter as it was 10 years ago and I have reached the conclusion that the proper classification is Class B, but I do believe that it is reasonable that having regard to the changes and the additional evidence that has been placed before this Tribunal, that I make a recommendation to the respondent to reconsider the applicant's position as at present.

For those reasons I have reached the conclusion that the proper classification of the applicant for the purposes of section 30 of the Act is Class B and it seems to me that even if I am wrong in saying that both hypertension and the knee should be taken into account, that nevertheless I would be satisfied with regard to the incapacity to his left knee alone that the proper classification would be Class B. I think that even without the hypertension it was a much more serious disability on the evidence before me than the respondent considered. - However, I do believe both matters can be taken into account but I am not persuaded that I should go beyond Class B in classifying the applicant.