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Sloan v Repatriation Commission

[2012] FCA 1079

COURT Federal Court, Melbourne
JUDGE Bromberg J
DATE OF DECISION 3 October 2012
DECISION The appeal was dismissed
ISSUES Whether AAT failed to apply the accepted meaning of “ clinical onset”


Mr Sloan rendered eligible service in the Australian Army from 1942 to 1946. In early 1943, he had a fall during a training exercise and suffered an injury to his lumbar spine.

Mr Sloan made a claim for disability pension for lumbar spondylosis, which was denied by the Repatriation Commission.  This decision was affirmed by the Veterans’ Review Board.  Mr Sloan sought further review by the Administrative Appeals Tribunal (Tribunal), who affirmed the decision under review.  Mr Sloan appealed the decision of the Tribunal to the Federal Court.

Grounds of appeal and Court’s consideration

The relevant factor in the Statement of Principles concerning lumbar spondylosis required a trauma to the lumbar spine within the twenty-five years before the clinical onset of lumbar spondylosis.  The Tribunal’s task was to determine whether Mr Sloan’s back injury in 1943 occurred no longer than twenty-five years prior to the clinical onset of his lumbar spondylosis.  The Tribunal determined that the clinical onset was the late 1970s or early 1980s.

Seven grounds of appeal were considered by the Federal Court.

Did the Tribunal adopt the wrong interpretation of “clinical onset”

In its reasons for decision, the Tribunal identified two relevant decisions of the Federal Court concerning the expression “clinical onset”: Lees v Repatriation Commission [2002] FCAFC 398 and Kaluza v Repatriation Commission [2010] FCA 1244.  The following extract from the judgment of Jacobson J in Kaluza was included in the Tribunal’s decision:

The meaning of the expression “clinical onset” was considered by the Full Court in Lees.  The effect of what their Honours (Heerey, Moore and Keifel JJ) said at [13] was that there is a clinical onset of a disease, either:

  • When a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
  • when a finding is made on investigation which is indicative to a doctor that the disease is present.

The first ground of appeal was that the Tribunal had erred by adopting an interpretation of the expression “clinical onset” by a rheumatologist (who provided a medical report relied on by the Tribunal), which was inconsistent the interpretation applied by the Court with Lees and Kaluza.  The Court considered the Tribunal’s decision demonstrated it had determined the date of clinical onset by reference to Lees and Kaluza.

Alleged failure to have regard to evidence

The second and third grounds of appeal were that the Tribunal erred in failing to have regard to evidence by an orthopaedic surgeon and a rheumatologist.  However the Tribunal’s reasons suggest that it did consider the medical evidence before it, and the Court considered the Tribunal is entitled to weigh the evidence and arrive at its own conclusions without making an error of law.

The fourth and fifth grounds of appeal raised the issue of whether the Tribunal had failed to have regard to Mr Sloan’s unchallenged evidence that he suffered ongoing symptoms from the date of injury in 1943.  The Court considered the reasons of the Tribunal indicated it did have regard to Mr Sloan’s evidence, but preferred the evidence of contemporaneous medical records.

Did the Tribunal misconstrue its task in determining when “clinical onset” occurred?

The final two grounds of appeal raised the issue of whether the concept of clinical onset applied by the Tribunal was inconsistent with the relevant Statement of Principles.  During the appeal, Mr Sloan contended that the Tribunal misconstrued its task in determining when clinical onset occurred.  The Court set out the task that the Tribunal was required to perform:

The question for the AAT was whether a doctor could have concluded that features or symptoms of lumbar spondylosis were experienced by Mr Sloan in early 1968 or earlier: Kaluza v Repatriation Commission  (2011) 122 ALD 449 (McKerracher, Perram and Robertson JJ), at [63] - [66].  That question has two parts.  First, it required the AAT to make findings based on the evidence before it, as to what features or symptoms of lumbar spondylosis were experienced by Mr Sloan and when they were experienced.  Secondly, the AAT needed to determine the time at which an opinion that lumbar spondylosis was present could first have been given by a doctor.

The Tribunal found that the weight of medical evidence suggests strongly that the views of doctors who concluded the clinical onset occurred in the late 1970s were preferable to that of the orthopaedic surgeon who concluded the initial onset was in 1943.  This gave rise to the suggestion that the Tribunal adopted factual assumptions made by the doctors whose views it preferred, without deciding for itself what features or symptoms were experience by Mr Sloan and when they were experienced (the first part of the question set out by the Court above).  The suggestion was aided by the lack of express factual findings on this subject in the Tribunal’s decision.  However, the Court concluded the factual case relied upon by Mr Sloan was impliedly rejected, as the Tribunal regarded the contemporaneous medical records as more reliable that Mr Sloan’s evidence about his history of symptoms.  Therefore, the Court did not accept that the Tribunal had misunderstood its task.

The Court’s Decision

The appeal was dismissed.

Editorial Note

This case reinforces the approach to be taken when determining the date of “clinical onset”, as set out in Lees and Kaluza.

All Practice Notes