Bell v. Repatriation Commission
[1992] FCA 101
•13 MARCH 1992
Re: NAOMI KATHERINE BELL
And: REPATRIATION COMMISSION
No. G416 of 1991
FED No 101
Veterans' Affairs
(1992) 26 ALD 545
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1) Beaumont(1) and Einfeld(2) JJ.
CATCHWORDS
Veterans' Fairs - appeal from the AAT - widow's pension - whether reasonable hypothesis that veteran's adenocarcinoma attributable to war causes - meaning of "reasonable hypothesis - whether hypotheses were purely theoretical - whether an improper onus of proof adopted - whether the Tribunal misunderstood the report of the Evatt Royal Commission.
Veterans' Entitlements Act 1986 (Cth), sub-ss.120(1) and (3).
HEARING
SYDNEY
#DATE 13:3:1992
Counsel for the Applicant: Mr A.T. McInnes QC and Mr A.L. Hill
Solicitor for the Applicant: Mr Kenneth Harrison
Counsel for the Respondent: Ms M.J. Beazley QC and Miss R.M. Henderson
Solicitor for the Respondent: Australian Government Solicitor
ORDER
The appeal be dismissed.
The Applicant pay the Respondent's costs of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by the Honourable Justice P.J. Moss, Brigadier J.A. Hooper and Dr D.J. Howell. The Tribunal affirmed a decision that the present applicant, Mrs N.K. Bell, the widow of Lt Colonel H.L. Bell, who died on 8 December 1984, aged 55 years, from cardiac arrest due to adenocarcinoma in the right kidney, was not entitled to benefits under the Veterans' Entitlements Act 1986 (Cth) ("the Act") as Lt Colonel Bell's death was not attributable to war causes.
The Tribunal had to apply those familiar but difficult provisions of the Act, sub-ss.(1) and (3) of s.120. The Tribunal held that the facts before it did not raise a reasonable hypothesis as to a causal connection between Lt Colonel Bell's war service and his medical condition of adenocarcinoma of the kidney.
Whether an hypothesis is a reasonable one is a question of fact committed to the decision-maker of fact, that is to say, to the Repatriation Commission, the Veterans' Review Board or the Administrative Appeals Tribunal. As to whether such an hypothesis exists in a particular case is a matter of fact for the judgment of the decision-maker. As s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that an appeal from a decision of the Administrative Appeals Tribunal lies only on a question of law, this Court may interfere with such a decision only when it appears that the decision-maker made an error of law, e.g., in the sense that the decision was perverse, and that no reasonable decision-maker could have come to it. See, e.g., Puhlhofer v. Hillingdon London Borough Council (1986) AC 484 per Lord Brightman at p 518, Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 per Mason C.J. at pp 355-60, Gilbert v. Repatriation Commission (1989) 86 ALR 713 at 722.
In the present case, for the reasons we shall later state, no error of law was disclosed by the reasoning of the Tribunal and the decision at which it arrived was open to the Tribunal on the evidence before it. In these circumstances, we would be reluctant to embark once more upon a discussion of the concept of "reasonable hypothesis". However, as senior counsel for Mrs Bell has submitted that the evidence before the Tribunal plainly established a reasonable hypothesis, we have thought it proper to emphasise again some points made in earlier decisions.
The concept "reasonable hypothesis" was enunciated by the Veterans' Review Board in Stacey's case, in a passage which was adopted subsequently by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615 and by Jenkinson, Neaves and Wilcox JJ. in East v. Repatriation Commission (1987) 74 ALR 518 at 533. The Veterans' Review Board said:-
"A hypothesis may be conveniently defined as: `proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary.
...
The addition of the word `reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be `raised' by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis."
In East v. Repatriation Commission, it was held that, by requiring a reasonable hypothesis consistent with the known facts of the veteran's case, the legislature had dealt with the problem which arose when the veteran's disease or disability had an unknown aetiology. The legislation now required that a reasonable hypothesis be put forward before the veteran may succeed. That hypothesis must be related to and pointed to by the facts of the veteran's case. See East's case at 532-4.
Thus, the general trend of decisions of the Administrative Appeals Tribunal has been to accept that a reasonable hypothesis is established when a responsible medical practitioner, speaking within the ambit of his or her expertise and after considering the particular facts of the veteran's case, propounds a realistically possible, not fanciful, causal connection between war service and the veteran's disability. To be reasonable, an hypothesis must be responsible. But that is not to say that, to be reasonable, an hypothesis must be supported by scientific proof or the general acceptance of the medical profession. In Repatriation Commission v. Whetton (unreported, 14 October 1991) Beaumont, Burchett and Lee JJ. put the matter this way:-
"What is required is `some degree of acceptability or credibility', to make the hypothesis `reasonable', and `some support in (the) material' before the Tribunal, so that the hypothesis can be said to be `raise(d)' by that material."
If the hypothesis propounded is not a reasonable one, then the claim must fail. If the hypothesis is reasonable, the s.120(1) standard of proof will apply. The veteran's claim may be dismissed if the decision-maker is satisfied beyond reasonable doubt on all the evidence that any necessary element of fact including a medical fact did not exist.
See Webb v. Repatriation Commission (1988) 78 ALR 696 at 699-700, 705; Gilbert v. Repatriation Commission at 719-21.Medical practitioners who give reports which are considered by or evidence to the Administrative Appeals Tribunal do not always approach the issue in the way we have outlined.
Some medical practitioners seem to place too much emphasis upon a supposed need for scientific proof. Thus, in Repatriation Commission v. Bushell (1991) 23 ALD 13 at 15, reference was made to the evidence of one eminent medical practitioner who, in the course of his evidence, said:-
"From the scientific point of view it (the hypothesis) is not an acceptable hypothesis ..."
The evidence of another medical practitioner referred to the absence of "hard evidence to support a relationship". Scientific proof or hard evidence is not required. Proof even on the balance of probabilities is not required. The Administrative Appeals Tribunal accepts it to be sufficient that a responsible medical practitioner propounds as his or her theory or diagnosis a connection between the medical condition and the war service which is realistically possible in the circumstances of the case.
On the other hand, some medical practitioners deem it sufficient to raise a mere theoretical possibility of a connection based not on a clinical consideration of the veteran's medical condition and of the circumstances of the war service but relying rather on theoretical possibilities raised, eg., from experiments undertaken on animals. Such an approach has generally been rejected by the Administrative Appeals Tribunal as failing to raise a reasonable hypothesis. Thus, in Hamling v. Repatriation Commission (1989) 19 ALD 354 at 358-9, in an appeal from a decision of the Administrative Appeals Tribunal, Davies J. said:-
"Thus, although an hypothesis is merely a theory or proposition and is not required to be proved, it must be `supported by the facts', per Brennan J. in O'Brien's case (Repatriation Commission v. O'Brien (1985) 155 CLR 422); `pointed to by the facts', per the Court in East's case; or `judged in the light of the circumstances of (the) case', per the Tribunal in Re Bramston (Re Repatriation Commission and Bramston (1987) 12 ALD 53). In applying this principle, the Tribunal in Re Bramston rejected the evidence of Dr P.N.J. Ironside, in part because, although Dr Ironside had put forward a theory connecting the development of an haemangioma with herbicides, he had not given attention to the particular facts of Mr Bramston's case.
...
In the present case, it was not sufficient for counsel appearing before the Tribunal to establish that there was a general theory held by some reputable orthopaedic surgeons as to the effect of multiple micro-traumata or small injuries upon osteoarthritis. The existence of such a theory would not of itself establish a reasonable hypothesis in the particular circumstances of the veteran's case. It was necessary that an appropriately qualified expert put forward a supposition which, taking into account the nature of osteoarthritis and the particular circumstances of the veteran's case, suggested a causal link between his disabilities and multiple micro-traumata suffered during his war service."
An hypothesis is therefore not likely to be accepted as a reasonable one if it appears to be purely theoretical.
In the present case, the evidence of the two medical practitioners who gave evidence on behalf of Mrs Bell tended to fall into the purely theoretical category. Thus, Professor L.J. Rogers, who gave evidence that Dapsone, an anti-malarial agent given to service personnel in Vietnam, was a possible cause of Lt Colonel Bell's cancer, placed considerable reliance on evidence respecting experiments as to the effect of Dapsone on animals, and on a paper by Kogan and Clapp, which professed to be "just a statistical comparison between the death records of (U.S.) veterans compared to the two chosen control groups. It does not proceed to analyse why this might be." Professor Rogers appeared not to give much attention to what was known of adenocarcinoma of the kidney or for that matter to the particular facts of Lt Colonel Bell's service in Vietnam. As the Tribunal said at p 381:-
"she appeared to take the view that it was no part of her brief to make any assumption about a particular factual situation in relation to the veteran and she said she had merely assumed that he had been `exposed' to a wide range of chemicals."
As to the Kogan and Clapp survey, the Tribunal said:-
"In the opinion of the Tribunal, little reliance can be placed on the Kogan statistics which made no attempt to analyse the results obtained."
We would add to the Tribunal's remarks that Professor Rogers' report did not clearly propound it as her view that exposure to Dapsone was a realistically possible cause of Lt Colonel Bell's carcinoma. Professor Rogers' report stated in its opening:-
"The following is my opinion as to whether a reasonable hypothesis exists that his tumour was either caused or aggravated by his exposure to toxic chemicals during his war service in Vietnam."
and concluded at p 331:-
"There is sufficient evidence to hypothesise with reasonable certainty that Mr Bell may have contracted a tumour either as a result of exposure to toxic chemicals while in Vietnam, or that his condition was exacerbated by that exposure."
This statement that there was "evidence to hypothesise ... that Mr Bell may have contracted a tumour ..." seemed to put forward a view as to what was a reasonable hypothesis rather than Professor Rogers' view as an expert that exposure to Dapsone or other chemicals was a possible cause of Lt Colonel Bell's adenocarcinoma.
The evidence of Dr P. McCullagh suffered from like faults. The Tribunal, having referred to the factual circumstances of Lt Colonel Bell's service in Vietnam and as to his exposure to chemicals there, commented:-
"In the opinion of the Tribunal, that evidence (as to exposure) is so general and so minimal that it is impossible to base upon it, or upon any inference capable of being drawn from such evidence, any hypotheses such as those that Dr McCullagh refers to in his reports."
On the other hand, Dr B.W. Stewart, who reported to and gave evidence on behalf of the Repatriation Commission, made a careful examination of the known facts concerning Lt Colonel Bell's service in Vietnam and of his medical condition, of the nature of adenocarcinoma of the kidney, of its causes which were known and suspected and of the matters which were known concerning Dapsone and defoliant chemicals used in Vietnam. Dr Stewart's report read authoritatively. Dr Stewart laid particular emphasis upon the fact that adenocarcinoma was the most common type of kidney cancer and that, whilst there were some known and suspected causes or contributing factors such as smoking and analgesic abuse, there were relatively few studies which identified any important environmental factor. Dr Stewart mentioned what was known with respect to these matters.
Dr Stewart reported that "no evaluation of the carcinogenicity of Dapsone in humans has implicated renal cancer. Dapsone has not been reported as causing kidney cancer in experimental animals or humans." Dr Stewart likewise excluded the other chemicals which he discussed at length, stating for example:-
"Renal cancer does not appear to have been implicated in studies of the possible carcinogenicity of chloro- phenoxy herbicide."
Dr Stewart noted the lack of any perceived connection between service in Vietnam and renal cancer. Dr Stewart reported:-
"Renal cancer is a distinctive disease unlikely to be confused with other types of cancer. It is usually treated by specialist physicians. Accordingly, increased occurrence of the disease amongst veterans of the Korean war (being a specific cohort of male patients within a particular age group) would be conspicuous. No such increased occurrence has been reported amongst American or Australian veterans of the Korean war. The incidence of cancer amongst Veitnam veterans has, and is, being monitored closely. From these studies there has been no suggestion of an increased incidence of renal cancer."
Dr Stewart likewise said in his oral evidence:-
"Dapsone is not recognised as a carcinogenic hazard for humans;
(it) is still being prescribed in a variety of circumstances and is not the subject of any ongoing epidemiological investigation in respect of its carcinogenicity, at least according to the international agency for research on cancer of the World Health Organisation."
The Tribunal preferred the evidence of Dr Stewart to that of Professor Rogers and Dr McCullagh, as it was entitled to do. His evidence was comprehensive and cogent whilst the hypotheses put forward by Professor Rogers and Dr McCullagh seemed to be theoretical possibilities rather than reasonable hypotheses raised by the facts. In our opinion, it was open to the Tribunal to conclude, as it did, that no reasonable hypothesis was raised by the material before the Tribunal.
Senior counsel for Mrs Bell submitted that the Tribunal imposed an improper onus of proof upon Mrs Bell for it referred on three occasions to "the requisite standard of proof". But on each occasion the reference was apposite. What the Tribunal had in mind by that term was made clear by the Tribunal when it explained that Lt Colonel Bell's service was "operational service" for the purposes of the Act and when it referred to sub-ss.120(1) and (3) and set out in its own words the effect of those provisions. The Tribunal's statement of the effect of those provisions was correct. There is no reason to doubt that the Tribunal applied the standard of proof which it enunciated.
Senior counsel for Mrs Bell also relied upon the fact that, in its reasons, the Tribunal referred to the Report of the Royal Commission on the Use and Effects of Chemical Agents on Australian Personnel in Vietnam (Commissioner: The Hon. Mr. Justice Phillip Evatt) ("the Evatt report"). The Tribunal said:-
"The Tribunal was referred to certain aspects of the Report of the Evatt Commission in relation to Dapsone. However, the Tribunal also notes that the same volume of that report includes a reference to the Kogan study and points out that the conclusions are based on a mere nine deaths and on the limited information from death certificates. The point is also made that the study does not take into account the actual dates when the relevant service took place. Further the study did not take into account any information as to exposure to chemicals in Vietnam or subsequently. There was no information as to date of the onset of the cancer. In the opinion of the Tribunal little reliance can be placed on the Kogan statistics which made no attempt to analyse the results obtained.
... So far as Dapsone is concerned, as Volume 4 of the Evatt Report pp 375-383 makes clear, the Commission made no finding that Dapsone was carcinogenic, although it received opinions that it might be. The only recommendation made by the Commission in this regard was that the chemical should be further studied."
It was submitted that the Tribunal misunderstood the Evatt Report.
In Chapter VIII of the Evatt Report, dealing with "Health Effects - Cancer", reference is made to Dapsone in the context of "Drugs". It is there stated (Item H3, p 375) that Dapsone was used after 1968. Reference was made to a review of the carcinogenicity of Dapsone in 1980 by the International Agency for Research into Cancer (IARC). According to the Evatt Report, the IARC concluded that "there was 'limited evidence' for the carcinogenicity of this compound in experimental animals." The Evatt Report quoted from this review at some length (at pp 377-381).
The Evatt Report then referred to the evidence before the Royal Commission given by Dr Philippe Shubik. The Report quoted Dr Shubik's written submission (see p 381 of the Report) as follows:
"Of all the compounds included in the list for discussion at the Royal Commission I would select Dapsone as the most likely compound to pose a potential carcinogenic hazard. This compound is an aromatic amine which has been found to give rise to mesenchymal tumors of the spleen and thyroid tumors in rats.
The exposure levels are of a much higher order magnitude from those encountered in dealing with herbicides or pesticides. I recommend an epidemiological study of those individuals exposed to this drug in Vietnam and a control (group) from (those) who went to Vietnam who received other therapy.
On present data I am unable to say whether dapsone is actually carcinogenic in humans. (emphasis added)"
Reference was then made in the Evatt Report to the oral evidence of Dr Shubik in which, in essential respects, he restated the opinions expressed in his written submission.
The Evatt Report went on to say (at 382-3):
"Coming as it does from such a highly qualified expert, Dr Shubik's queries about Dapsone have great weight. There is of course no evidence that dapsone is actually carcinogenic in man. In summary his evidence is a plea for a proper epidemiological study.
The Commission is reinforced in its opinion by a passage in the transcript of Dr Shubik's evidence...where the doctor added, `Insofar as Dapsone is concerned, compounds that do produce leucopoenia with white cell problems, are, of course, suspect of being carcinogenic.'
The Commission recommends the financing of further studies of this chemical. Any Vietnam veteran suffering from cancer who may have taken Dapsone should have his claim treated as showing that a reasonable hypothesis exists connecting his incapacity with his war service."
Two questions arise here. The first is whether the Tribunal did not properly understand what was said by Mr. Justice Evatt. In this connection, reference was made by senior counsel for Mrs Bell, to the statement by the Tribunal that the only recommendation by the Commission was that the chemical be further studied, whereas, the argument ran, the Royal Commission also mentioned the oral evidence that certain compounds, including Dapsone, were "suspected" of being carcinogenic.
In our opinion, the Tribunal did not misunderstand the Evatt Report in any relevant sense. The Tribunal correctly pointed out that the Commission "made no finding that Dapsone was carcinogenic, although it received opinions that it might be." It was also accurate to say that, in terms, the only recommendation by Mr. Justice Evatt was that further studies be made. The remainder of the report on this subject constituted a suggested interim position which the Commonwealth might take pending those studies.
The Tribunal was bound to form its own view on this matter and was entitled to accept the view put by Dr Stewart that, subsequent to Dr Shubik's experiments, there had been no ongoing suspicion of Dapsone as a carcinogen in respect of humans and that the agent had continued to be used in medical treatment.
The second question which arises is whether there was any error of law arising as a consequence of the weight given to the opinions expressed in the Evatt Report. The Tribunal was not, of course, bound by the rules of evidence and, if relevant, the matters raised in the Report could properly be taken into account by the Tribunal. But the weight to be afforded to those matters was very much a question of fact for the judgment of the Tribunal. Except if the Tribunal's approach to these matters could be shown to be "unreasonable" or "perverse" in the Wednesbury sense, the jurisdiction of this Court to review judicially an error of law would not be attracted. When the statements in the Evatt Report are read in their full context, we do not think that the applicant has been able to demonstrate that, in this connection, any error of law was made.
For these reasons, we are of the view that no error of law in the decision of the Tribunal has been established. We would dismiss the appeal with costs.
JUDGE2
Not without some hesitation, I agree with the judgment of the other members of the Court but would wish to add a few observations of my own. During argument the respondent submitted that it was appropriate under the present legislation for the existence of a "reasonable hypothesis" to be subjected to what was called an "end-of-the-day" test. If this formulation means merely that all the evidence is to be heard and considered before the decision is made as to whether a reasonable hypothesis of causal nexus is established, it says nothing more than section 120(3) of the Veterans' Entitlements Act 1986. It is also what would anyway be required, in the absence of alternative statutory prescription, by the requirements of orderly procedure and natural justice. But if this formulation is to have any serious content, it must have a different meaning. Indeed, as I understood the submission, it was that at the end of the evidence, the decision-maker or the Tribunal is to weigh up the various contentions and determine whether there is a balance in favour of the connection. On this basis, I would reject the formulation.
What the Act requires for a claimant to succeed is a reasonable hypothesis of causation. This is not a balancing exercise. Nor is it a question of weight. An otherwise reasonable hypothesis of causation established by evidence does not cease to exist because there is alternative evidence denying the link, even if the alternative evidence is preferred by the decision-maker. If a weighing up or balancing exercise is performed, it is inevitable that a de facto onus of proof will be imposed. This would be simply to ignore the terms of the statute and the manifest intent of the Parliament.
The applicant argued that the Tribunal omitted from its determination an important aspect of the Evatt Royal Commission's report, as explained in the judgment of Davies and Beaumont JJ. However, after carefully reading all the relevant material, I have, like their Honours, concluded that the omissions were immaterial. Indeed, as their Honours point out, the whole context actually emphasises the Tribunal's conclusions about the report's contents. The urging by the Royal Commissioner that the Government recognise and accept claims involving the causal connection of Dapsone ingestion and cancer was not a finding that there was such a connection; it was merely registering the desirability, for humanitarian reasons, of assuming a connection between them pending further study. The applicant's understandable grievance that the recommendation has been ignored, at least in her case, and that costly litigation be conducted instead, does not create a fact of causal nexus which the Tribunal was bound to uphold.
All the Royal Commission had was evidence of a possible nexus, requiring further testing, based on animal studies unlike any set of facts pertaining to the Vietnam veterans being considered by the Commission. This evidence would not have permitted a positive finding of a definite human nexus and the Royal Commission did not purport to do so. Indeed, despite the common and widespread use of Dapsone by and for humans for many years, including Australian service personnel in Vietnam, and its continuing use up to the present day, there is apparently no, and no growing, evidence of its carcenogenicity to humans. Even without specific study, these facts might have led the Royal Commission, and the Tribunal in this case, perhaps instinctively rather than empirically, to conclude that a causal connection was therefore unlikely. In the case of the Tribunal, this might have been reinforced by a continuing lack of evidence or study since the Royal Commission reported, as demonstrated by the evidence actually presented during its hearing.
Moreover, the present claim presented another difficulty in the Tribunal's search for a reasonable hypothesis of nexus. The Tribunal had undisputed evidence that all or many cancers are different, as are their causes. It is one thing to conclude that the evidence established a true hypothesis, even a reasonable hypothesis, that Dapsone causes cancer. On the evidence before the Tribunal, I think there was a hypothesis of connection. The Tribunal regarded the evidence called to support the applicant's case as weak and unpersuasive. In the nature of the current appeal, there are very few circumstances which would justify an alternative conclusion by this Court. However, for the purposes of argument, I would be prepared to assume, without specifically finding, that it was a reasonable hypothesis. It is nonetheless quite another matter to say that this or another reasonable hypothesis was of a causal link between Dapsone and renal cancer, or at least the renal cancer from which Lieutenant Colonel Bell died. Such a conclusion is very much a matter for expert and specialist evidence. It cannot be guessed or inferred by lay people merely from a conclusion that Dapsone is carcinogenic.
In these circumstances, the Tribunal was left with a case where, although there was credible evidence that a link may exist (a hypothesis of nexus), nothing credible has yet emerged to convert this hypothesis into one based on reason or reasonable grounds (a reasonable hypothesis of nexus). Ex hypothesi, no reasonable hypothesis exists of a nexus between Dapsone and renal cancer, or of Lieutenant Colonel Bell's death from renal cancer being linked to his ingestion of or exposure to Dapsone. Both by reason of the available evidence and section 44 of the Administrative Appeals Tribunal Act 1975, I regret that we are thus in no position to overturn the Tribunal's findings in this regard.
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