Bowman, Thomas William v Repatriation Commission

[1981] FCA 56

Re: THOMAS WILLIAM BOWMAN
And: THE REPATRIATION COMMISSION (1981) 51 FLR 374
No. G17 of 1980
War Pension - Statutes - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Ellicott J.(1)

CATCHWORDS

War Pension - Physical incapacity due to war related injury - Application for increase beyond 100% rate - Applicant able to cope with full time sedentary work in low stress environment with frequent breaks of hours or days - Whether work could be found for him - Whether assessment of right to increased pension involves consideration of effect of physical incapacity on capacity to earn - Test to be applied - Repatriation Act 1920. ss.23, 35, 101, 107VD, 107VH, 107VK, 107VZZH. Schedules 1 and 2.

Statutes - Interpretation - "Unable to earn a living wage" - "Precluded from earning . . . a living wage" - Whether market for appellant's labour to be considered - Repatriation Act 1920 (Cth), ss. 23, 35, 101 (1) (b), 107 VD, 107 VH (2), 107 VZZH (1), Sched. 1 pars. 3, 6, Sched. 2 par. 1.

Appeal - Repatriation Review Tribunal refused application for increased pension - Appeal to Federal Court - Whether Tribunal erred in law - Whether market for appellant's labour to be considered - "Unable to earn a living wage" - "Precluded from earning . . . a living wage" - Repatriation Act 1920 (Cth), ss. 23, 35, 101 (1) (b), 107 VD, 107 VH (2), 107 VZZH (1), Sched. 1 pars. 3, 6, Sched. 2 par. 1.

HEADNOTE

The appellant appealed to the Federal Court of Australia on a question of law against a decision of the Repatriation Review Tribunal refusing an application for an increase in his war pension.

Held, that the Tribunal was bound in law when applying pars. 3 and 6 of Sched. 1 and par. 1 of Sched. 2 of the Repatriation Act 1920 to take into account the effect of the applicant's physical or mental disability on his capacity to earn remuneration by employment or otherwise in any market reasonably accessible to the applicant. The Tribunal had erred in law by leaving out of consideration the market for the appellant's labour.

Appeal allowed.

Thompson v. Armstrong and Royse Pty. Ltd. (1950), 81 CLR 585; Wicks v. Union Steamship Company of New Zealand Ltd. (1933), 50 CLR 328, applied.

Cardiff Corporation v. Hall, (1911) 1 KB 1009; Ball v. William Hunt & Sons Ltd., (1912) AC 496; Birch Bros. Ltd. v. Brown, (1931) AC 605; Repatriation Commission v. Law (1980), 47 FLR 57, referred to.

Collins v. Repatriation Commission (1980), 48 FLR 198, referred to with approval.

HEARING

Sydney, 1980, September 8; November 20; 1981, February 13; March 24; May 12. #DATE 12:5:1981

APPEAL.

Appeal from a decision of the Repatriation Review Tribunal.

J. A. Griffin, for the appellant.

J. G. Crowley, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: Paul McCawley.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

E. F. FROHLICH

ORDER

(1) The appeal be allowed;

(2) The decision of the Repatriation Review Tribunal be set aside;

(3) The matter be remitted to the Tribunal to be heard and decided again according to law in the manner I have indicated after the hearing of such further evidence as it may decide to receive.

(4) The respondent pay the appellant's costs of this appeal and of appeal No. G16 of 1980.

JUDGE1

The appellant, Thomas William Bowman, was in 1979 in receipt of a war pension at the 100% rate under Schedule 1 of the Repatriation Act 1920 in respect of incapacity resulting from certain service related disabilities. These disabilities are:-

Bilateral Perceptive Deafness

Anxiety Hysteria

Hypertension

Symptoms (knee injury) are ascribed to Anxiety Hysteria

Ischaemic Heart Disease

In that year he applied for an increase in his pension. On 13 December 1979 a Repatriation Board refused his application and confirmed that he should continue to receive a pension at the 100% rate.

The appellant then applied for a review of that decision to the Repatriation Review Tribunal which, on 6 August 1980, stated, following the terms of the relevant section of the Act, that it was satisfied, beyond reasonable doubt, that the Board's decision of 13 December 1979 was the decision that the Tribunal would have made if it had conducted the proceeding in which the Board's decision was made. It therefore affirmed the decision of the Board.

The appellant has appealed to this court on a question of law against the decision of the Repatriation Review Tribunal.

There were in fact two appeals in relation to the decision of the Tribunal. One(No. G16 of 1980) named the Tribunal as respondent. The other (No. G17 of 1980) named The Repatriation Commission. It was agreed at the hearing of the appeals that I should proceed with the appeal No. G17 of 1980 and that the decision in that would determine appeal No. G16 of 1980.

The application for review to the Tribunal was made by the appellant pursuant to section 107VD of the Repatriation Act 1920.

Section 107VH provides:-

"(1) In a proceeding on a review, the Tribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before the Tribunal in the proceeding that was not before the Commission or the Board but would have been relevant to the making of a decision in the proceeding before the Commission or the Board.

(2) On the completion of its consideration in a proceeding on a review -

(a) where the decision the subject of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or

(b) in any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made.

(3) Where the Tribunal sets aside a decision the subject of a review, it shall substitute for that decision such decision as the Tribunal considers to be in accordance with this Act.

(4) Where the Tribunal does not set aside a decision the subject of a review, it shall affirm that decision."

A question was raised in argument in this case as to whether the Tribunal was acting under s.107VH(2)(a) or (b). I think it is clear, that, as the application was to increase the appellant's pension, the Tribunal, in giving its decision, was acting under sub-paragraph (2)(b). This is also the form in which the Tribunal purported to make its decision.

The appeal to this court is brought pursuant to s.107VZZH(1) which provides that an applicant, in a proceeding before the Tribunal, may appeal to the Federal Court on a question of law from any decision of the Tribunal in that proceeding. The Court is empowered to make such order as it thinks appropriate by reason of its decision. It may, inter alia, affirm or set aside the Tribunal's decision or make an order remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal, in accordance with the directions of the Court.

Section 101(1)(b) of the Repatriation Act provides that upon the incapacity or death of any member of the Forces in the 1939-1945 war whose incapacity or death has arisen out of or is attributable to his war service the Commonwealth shall subject to the Act, be liable to pay to the member, or his dependants, pensions in accordance with Division 1 of the Act. Section 35, which is found in Division 1 provides that the rates of pension are those specified in the Schedules.

Schedule 1 provides for General Pension Rates payable to members or dependants. It provides (inter alia) for "the pension payable to member on total incapacity". Paragraphs 3 and 6 of Schedule 1 are in the following terms:-
"3. Where a member of the Forces is temporarily totally incapacitated to such an extent as to be precluded from earning other than a negligible percentage of a living wage while he is so incapacitated, and where the aggregate of the rate of pension payable to that member under Column 3 of the table in this Schedule and the amount (if any) payable to him under Schedule 5 is less than the Special Rate of Pension specified in Schedule 2, the Commission may grant an additional pension to a member at a rate not exceeding the amount of the difference between that aggregate sum and that Special Rate of Pension for such period, whether in excess of six months or not, as the Commission determines.

6. Where the incapacity of a member of the Forces is such that he is unable to earn a living wage by reason that he is unable to engage in a remunerative occupation except on a part-time basis or intermittently, the amount specified in Column 3 of the table in this Schedule shall, in its application in relation to him, be deemed to be $140.30."

Schedule 2 provides for the "Rate for Special Pensions". The relevant paragraph states:-
"The special rate of pension may be granted to members of the Forces who have been blinded as the result of War Service, and to members who are totally and permanently incapacitated (i.e. incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage)."

Under Division 5 of Part III of the Act a member of the Forces may be granted what is termed a "Service Pension" if he is permanently unemployable and has served in a theatre of war. This pension is in no way dependent on age or on the applicant having suffered war related injury causing incapacity. In other words the incapacity may arise from other causes, e.g. a motor accident. The phrase "permanently unemployable" is defined in s.23 as meaning:-
". . . . . . permanently incapable, by reason of physical or mental disablement, of being employed in a remunerative occupation in which, in the opinion of the Commission, he can reasonably be expected to obtain regular employment."

The appellant has been found to be "permanently unemployable" within the meaning of s.23 and is in receipt of a service pension because of it. He does suffer other disabilities which have not yet been accepted as due to war service.

At the hearing of this appeal Counsel for the appellant relied on two broad grounds. First he argued that the Tribunal was wrong in law, having regard to the evidence before it, in being satisfied beyond reasonable doubt that the decision of the Board was the decision that the Tribunal would have made if it had conducted the proceedings in which the decision was made. The appellant relied strongly on the approach adopted by this Court in Repatriation Commission v. Law (1980) 31 A.L.R. 140 (subject to appeal to the High Court). In effect, he argued that the Tribunal could not possibly have come to this view on the evidence, particularly the medical evidence before it and that therefore it must have erred in law.

The other submission put on behalf of the appellant was that the Tribunal in considering whether he was entitled to an increase in pension under either paragraphs 3 or 6 of Schedule 1 or Schedule 2, erred in law in not considering his ability to earn by finding employment of the nature for which he was held to be fit.

The appellant was born on 27 October 1920. He served in the Armed Forces in the 1939-1945 war. He was involved in the siege of Tobruk and apparently most of his war related disabilities arise from the explosion of a shell some feet away from him during this period. As pointed out earlier, no question arises in this matter as to whether the particular disabilities are war related. What is in issue is the effect of those disabilities on his capacity. He gave evidence before the Tribunal. This and a statement which he lodged when he applied to the Tribunal for a review of the Board's decision, described the various symptoms he experiences including dizziness and blackouts, anxiety, chest pains, nausea, ear noises and cramps.

The opinions of a number of doctors as to the appellant's condition were before the Tribunal.

Dr Boyle, a neurophysician, on 14 March 1980, gave the following report:-
"Consider as predominantly a cardio vascular problem with hypertension and possibly arhythmia. Much superimposed neuroticism."

Dr Apel a psychiatrist on 1 November 1979 found on examination that he had an anxious manner, rational, not unduly distressed, not depressed, no evidence of psychosis dependence, no organic change. He commented "history suggests some slight deterioration. If he were physically capable of work he would cope with moderate work with frequent brief (hours/days) breaks."

Reference was also made to a report dated 29 March 1976 by Dr James, a psychiatrist. He said that the appellant was socially isolated and unable to work because of his cardiac condition, worried about his health and finance and attempting to finance a retirement home. He said these factors had considerably exacerbated his anxiety state over the previous six to twelve months. He concluded - "incapacity is moderate 50%."

The appellant's local medical practitioner, Dr Paul Millett, in a report dated 13 August 1979 expressed the view that his anxiety neurosis had become predominant and that he had a variety of functional disorders which seemed to be caused by anxiety. Dr Millett thought his was a genuine war caused disorder and that his future life had been mediated by this experience.

In a letter dated 29 July 1980 which was before the Tribunal, Dr Millett, referring to the explosion of a shell near him during the war, said:-
"His health has been affected by this experience and I feel that this explosion could have triggered this response. I support his application on all grounds and I consider Mr Bowman unfit for work."

In relation to the medical opinions expressed by these various Doctors, the Tribunal made several comments.

It noted Dr James' comment that the appellant was unable to work because of his cardiac condition but said that the basis on which Dr James made this statement was not clear and that he did not say specifically that he was of the opinion that his cardiac condition would prevent him from working.

Of Dr Apel's report it noted that he was a psychiatrist, not a physician, that he did not express a specific opinion that the appellant's service related physical disabilities were such that they would prevent him from working and that Dr Apel had indicated, by his comment, that, in his opinion, the appellant's anxiety state would not prevent him from working.

Dr Boyle did not, it was observed, express any specific opinion as to the extent of incapacity from the service related disabilities.

It noted Dr Millett's report and subsequent letter. It commented that Dr Millett did not say whether in his opinion the appellant's unfitness for work was a continuing condition. Nor did he say specifically what it was, in his opinion, that rendered the appellant unfit for work.

In its reasons the Tribunal said:-
"It is quite clear from the evidence that the applicant's general health and circumstances are such that his employability is very adversely affected. Indeed, the same Departmental Officer who expressed the abovementioned opinion that, the applicant should be capable of doing full time sedentary work reported that he is "permanently unemployable" within the meaning of Section 23 of the Repatriation Act and the applicant was found to be permanently unemployable for the purposes of a Services Pension."

Having considered the evidence the Tribunal expressed the following views:-
"The Tribunal has considered all of the evidence and accepts the specialist opinion of the Psychiatrist concerning the extent of incapacity from anxiety state, namely, that, taken by itself, that incapacity would restrict the Applicant to 'moderate work with frequent brief (hours/days) breaks'. The Tribunal understands that opinion to mean that the Applicant on account of his anxiety state would only be capable of moderate work on a full time basis and that he would require frequent brief (hours/days) breaks from that employment."

The Tribunal then said:-
"The Tribunal also finds that the restrictions imposed by the Applicant's other service related disabilities are considerable. The evidence does not enable the Tribunal to say exactly what it is that is causing the Applicant's 'blackouts' 'seizures' or 'fits'. These may be related to his anxiety state, his cardiac condition or to a combination of these factors. However, accepting the Applicant's evidence that he suffers in this way and allowing for the fact that the symptoms may be due to the service related disabilities, the Tribunal concludes that the extent of incapacity from those disabilities would still not reach the level which would bring the Applicant's case within the criteria prescribed in paragraph 6 of Schedule 1 of the Repatriation Act 1920 relating to the so-called Intermediate Rate Pension or within the criteria prescribed in Schedule 2 of the Act relating to the Special (Totally and Permanently Incapacitated) Rate Pension.

Notwithstanding the Applicant's misgivings concerning his ability to do any remunerative work and the advocate's submission that the Applicant is totally and permanently incapacitated, the Tribunal finds from its consideration of all of the evidence that the Applicant could cope with suitable full-time sedentary employment in a low stress environment if such work could be found for him. In reaching this finding the Tribunal took account of the fact that coping with the full time employment of the above description would include taking 'frequent brief (hours/days) breaks' as envisaged by Dr Apel."

It is convenient to deal first with counsel for the appellant's second submission that the Tribunal had failed to consider the appellant's ability to earn by finding the work for which it was said he was fit. This raises the true construction of the relevant provisions of the Act.

I think it is clear from the Tribunal's reasons for its decision that it did not consider this question.

In finding that the appellant could cope with certain full time work it qualified its finding by saying "if such work could be found for him" but nowhere in its reasons does it deal specifically with his ability to find work of this nature.

Indeed on reading the Tribunal's reasons, I am left with the distinct impression that it did not consider it because, in its view, this was not a relevant consideration in dealing with an increase beyond the 100% rate.

In referring to the fact that he had been found to be "permanently unemployable" within the meaning of s.23 of the Act it said:-
"However, in making an evaluation for those purposes, account is taken of many factors, such as the veteran's age, the state of the job market and all disabilities, including those which have not been accepted as due to war service. On the other hand, only the effects of the service related disabilities can be included in the calculation of the extent of incapacity from those disabilities."

This statement is not conclusive of such a view but it is consistent with it.

The suggestion was made, at the hearing of the appeal, that I should assume that the Tribunal took this matter into account and that it was satisfied that he could find such work. I am not prepared to make this assumption, first, because of the matters I have just referred to, and secondly, because I think if it had dealt with such an important matter, the evidence relating to it and its findings on that evidence would have been specifically mentioned. It should be borne in mind, of course, that under the Act the Tribunal is required to state its reasons in writing and any findings of fact (See S.107VK).

It follows from this that, in my view, if the Tribunal was bound to consider this matter, it erred in law and its decision should be set aside.

I now propose to deal with the question whether it was so bound.

The term "incapacity" is not defined in the Act. A reading of the Act and of the Schedules to it, supports the view expressed by Fisher J. in Collins v. Repatriation Commission ((1980) 32 A.L.R. 581 at p.583) that the word "incapacity" by itself means a physical or mental disability rather than an incapacity such as an inability to perform work or earn wages or otherwise. Thus in Schedule 4 to the Act the rate of pension as a percentage of the General Rate is fixed by reference to particular disabilities and, for example, a person who suffers a loss of two or more limbs or a loss of both eyes is entitled to 100% of that rate. On the other hand, a person who has suffered loss of vision in one eye, is entitled to 50% of the rate. These amounts appear to be payable whether the person can obtain full or part-time employment or not.

On the basis of the war related disabilities which the appellant has suffered it has already been decided that he is entitled to a pension at a rate equal to 100% of the General Pension Rate provided for in Column 3 of the Table in Schedule 1. This Column provides the amount of pension payable to a member on "total incapacity". He is entitled to this, based on the above interpretation of the word "incapacity" in the Act, even if he is able to obtain full time employment in a highly remunerative position. It is his compensation or entitlement under the Act for having suffered the war related disabilities previously described.

However, the question whether an applicant is entitled to an increase above the 100% rate to a higher rate of pension depends not only on the meaning of the word "incapacity" but on whether the incapacity has the effect described in the relevant provisions.

For instance, under Schedule 1 paragraph 6 which deals with the intermediate rate pension, the incapacity must be such that "he is unable to earn a living wage by reason that he is unable to engage in a remunerative occupation except on a part-time basis or intermittently." The first paragraph of Schedule 2, which lays down the requirement for the Special Rate or T.P.I. pension, requires that the applicant must be totally and permanently incapacitated in the sense that he is, "incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage." A somewhat similar test is laid down in paragraph 3 of Schedule 1 for a T.T.I. pension. These provisions, in my view, clearly raise for consideration the earning capacity of an applicant.

Some assistance as to the meaning of these phrases is to be gleaned from the cases which have considered "incapacity" under Worker's Compensation legislation.

In Ball v. William Hunt & Sons Limited (1912) A.C. 496 the House of Lords considered the phrases "incapacity for work" and "ability to earn" in the Workmen's Compensation Act 1906. Lord Loreburn L.C. (at pp.499-500) in an oft quoted passage defined "incapacity for work" as follows:-
"In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch."

Lord Atkinson (at p.505) dealt with the phrase "or is able to earn" in a Schedule to the Act as follows:-
"The obvious meaning of paragraph 1(b) of the schedule, when read with paragraph 3, is that the higher scale is to be adopted when the workman is not able to earn anything, and that where he does earn or is able to earn something in a suitable employment credit is to be allowed for this sum to the extent specified. The words "or is able to earn" are most significant. They point to the retention of the power to earn something in a suitable employment, and to the extent that this power is retained or has returned, though he may not try to exercise it, he does not incur the particular kind of loss for which compensation is to be given. Paragraph 16 of the schedule points in the same direction. The weekly payment may be ended or diminished or increased according, presumably, as the ability to earn has completely returned, has increased, or has diminished. There would be no meaning, it would appear to me, in these provisions making the amount of wages which were, are, or can be earned so much the basis of compensation, if the market for the workman's labour has to be left out of consideration. The earning of wages depends as much on the demand for the workman's labour as it does upon his physical ability to work. If because of his apparent physical defects no one will employ him, however efficient he may be in fact, he has lost the power to earn wages as completely as if he was paralysed in every limb.

If it be then the paramount object of the Act to compensate for the loss of the power to earn wages, the workman whom because of the injury caused by an accident, nobody will employ, comes within its purview as much as one who is rendered unable to do any work at all."

In a later decision of the House of Lords, Birch Brothers, Limited v. Brown((1931) A.C. 605) Lord Macmillan (at pp.626-7) explained the concept in the following passage:-
"My Lords, to be entitled to compensation under the Act a workman must be totally or partially incapacitated for work as a result of his having suffered personal injury by an accident arising out of and in the course of his employment. It is now accepted that by incapacity for work is meant incapacity to earn wages by working. The personal injury sustained by the workman may incapacitate him from earning wages either by rendering him physically unfit to work or by preventing him from getting work by reason of some handicap which his injury has imposed upon him in the labour market notwithstanding that he is as physically fit for his work as he was before his accident. Although he has completely recovered his physical strength his accident may have left him with some defect which deters employers from engaging him, it may be because it exposes him to greater liability to accident or merely because it renders him less attractive in competition with other candidates for employment. Either form of incapacity for work entitles the workman to compensation, but it is obvious that the kind of evidence necessary to establish or negative physical ability to work must differ widely from the kind of evidence necessary to establish or negative eligibility for employment. The physical state of a man's body is a matter susceptible of reasonably definite proof, and the degree of his recovery from an accident, whether total or partial, can be determined without much difficulty. The other type of case is less easy of determination, for the employability of a workman physically fit for his work but with a defect resulting from his accident which affects his eligibility is a much more subtle matter to gauge."

In Thompson v. Armstrong and Royse Pty. Limited ((1950) 81 C.L.R. 585) the High Court adopted a similar meaning for the phrase "incapacity for work" found in s.9 of the Worker's Compensation Act, 1926 (N.S.W.). Kitto J. after referring to Lord Macmillan's judgment in Birch Bros (supra) made the following observations (at p.621):-
"Thus compensation is awarded, not for loss of wages, nor for impairment of physical condition per se, but for the economic aspect of that impairment, namely a lost or diminished ability to obtain wages by working.

This is made abundantly clear by Lord Loreburn's frequently quoted definition in Ball v. William Hunt & Sons Ltd (1912) A.C. at pp.499,500

'There is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch.'

The inquiry, then, must be as to the result of a man's physical defect in relation to the market for his labour. If his physical defect is such that he cannot go into the market at all, because he cannot offer to perform any labour, it seems to me to follow necessarily that he has a total incapacity for work. He has no labour to sell; and to say that nevertheless he is not incapacitated for work, because he is getting wages under a continuing contract of employment which in the circumstances does not require him to give any labour in return for wages, appears to me to involve a complete desertion of Lord Loreburn's definition.

His Lordship's expression 'any market reasonably accessible to him' has often been paraphrased as 'the open market'; see, for example, Funnell v. Allen West & Co. Ltd. (1947) 177 L.T. 220. It is the general market in which the worker, but for his injury, could reasonably have offered his labour."

In Wicks v. Union Steamship Co. (1933) 50 C.L.R. 328 the High Court considered the meaning of the phrase "total and permanent disablement" in the same section of the Act. The Court in its judgment (at p.338) said:-
"The sub-section then excepted from the limitation cases of permanent and total disablement. The Commission was, therefore, called upon to decide whether the worker had been permanently and totally disabled, an expression which, in our opinion, means physically incapacitated from ever earning by work any part of his livelihood. This condition is satisfied when capacity for earning has gone except for the chance of obtaining special employment of an unusual kind."

(See too Cardiff Corporation v. Hall (1911) 1 K.B. 1009)

These cases, which relate to other statutes, should, of course, only be used as a guide to the proper construction of the relevant provisions of Schedules 1 and 2 of the Repatriation Act. If anything, however, those provisions are clearer in requiring earning capacity to be considered than the provisions of Worker's Compensation legislation. Each of them in its terms requires an assessment to be made of the effect of an applicant's mental and physical incapacity on his or her ability to earn and this can only be gauged by reference to the market in which the applicant might expect to earn.

No doubt in applying the Schedules, similar questions will arise as have arisen under the worker's compensation cases. For instance, in some cases, it may be obvious that a person's incapacity renders him totally unable to earn a living wage. In other cases what an applicant can earn, if anything, will depend on evidence of opportunities in the market. Complex questions may arise, for example, whether one is to take into account the effect of general economic conditions on the relevant labour market or the effect on earning capacity of injuries which are not war related. It may be that they should be answered in the same way as similar questions have been answered in the worker's compensation cases but I should add that, relating as they do to different statutes, they must be applied with caution.

I am satisfied, however, that the basic test adopted in those cases is broadly consistent with that required to be adopted in applying paragraphs 3 and 6 of Schedule 1 and the first paragraph of Schedule 2 of the Repatriation Act. In my opinion therefore, the Tribunal is bound in law in applying those provisions to take into account the effect of an applicant's physical or mental disability on his or her capacity to earn remuneration by employment or otherwise in any market reasonably accessible to the applicant. It is not enough simply to form a view that an applicant in a physical sense can still undertake work despite war related injuries. The incapacity so arising may well have destroyed or impaired his or her earning capacity in the market place. It is from such circumstances that the relevant provisions are designed to protect the applicant. Needless to say, in applying them, regard must be had to the specific tests contained in them. Each of them, for instance, adopts the "living wage" concept. (See definition of "living wage" in the Repatriation Regulations).

In Collins v. The Repatriation Commission (supra at pp.585) Fisher J. in discussing the Schedules said:-
"The three columns of Schedule 1 provide the General Rates of pension and they are referred to as such. The rate of pension prescribed by paragraph 3 of Schedule 1 is the temporarily totally incapacitated rate and shortly referred to as the 'T.T.I' rate. Paragraph 6 of the Schedule, which is particularly relevant here, is referred to as the "Intermediate Rate" of pension. This is probably because it is between the General Rate prescribed by the three columns of the Schedule 1 and the Special Rate of Pension provided by Schedule 2.

Schedule 2 and the subsequent Schedules prescribe the rates of pension payable to various classes of persons and in respect of various types of disabilities. Apart from the first paragraph of Schedule 2 the schedules make no reference to impairment of earning capacity."

The issue in that case was whether the Tribunal had properly considered the appellant's claim to a pension at the intermediate rate (that is, the rate referred to in paragraph 6 of Schedule 1). Because His Honour found that the Tribunal had failed to refer to the applicant's claim to an intermediate rate of pension he remitted the matter to the Tribunal. It was suggested at the hearing of this appeal (wrongly, in my view) that His Honour's decision is inconsistent with the view that a consideration of earning capacity is necessary when dealing with applications for T.T.I., intermediate or T.P.I. pensions. In that case the applicant had given evidence about his earning capacity in support of his claim for an intermediate pension, but the Tribunal had not referred to that claim and the supporting evidence. His Honour held that in doing so, it had erred in law by overlooking a relevant consideration.

It is clear, as I have already indicated that, in this case, the Tribunal has failed to consider the applicant's earning capacity in the market. Mr Bowman is 60. After considering his war related disabilities the Tribunal formed the view that he can cope with suitable full time sedentary employment in a low stress environment but that this employment would involve his taking frequent breaks of hours or perhaps days. The Tribunal qualified its finding by the statement "if such work could be found for him." In the absence of evidence it must at least be open to doubt whether it could be found. If not available full-time, it would be necessary to enquire whether it is available on a temporary, part-time or intermittent basis and, if so, what remuneration he is likely to earn and how this would compare with a living wage.

It was argued for the appellant that if I found that the Tribunal had failed to take into account his capacity to find work I should order, in the absence of any evidence about it, that he be granted a T.P.I. pension. I have considered this argument but I think the proper course in this case, where the Tribunal has, as I have found, failed to take into account a very relevant consideration, is to remit the matter to the Tribunal so that it can consider it according to law and after taking into account any further evidence placed before it. If the Tribunal had not misdirected itself the evidence before it may well have been different and I do not think the appellant's claim should be determined without there being an opportunity for consideration to be given to any such evidence.

The appellant's other argument based on s.107VH (2)(b) was that, on the evidence before it, the Tribunal erred in law in being satisfied beyond reasonable doubt that the decision of the Board was the decision it would have made.

I have already referred in detail to the medical evidence. In some respects it was unsatisfactory and incomplete and the Tribunal referred to this in its reasons. On the other hand it included a recent opinion by Dr Millett that the appellant was unfit for work. This submission therefore raises a substantial issue in relation to proof beyond reasonable doubt. However, because of the view I have formed, that the Tribunal misdirected itself on the question of earning capacity and that therefore the matter should be remitted to the Tribunal, I have decided that it is unnecessary and probably undesirable for me to express a view on this submission. The Tribunal will consider the matter on the basis of further evidence placed before it and this might include medical evidence. It will be directed, I assume, largely to the appellant's ability to find work and the Tribunal will be required to make a new assessment of the evidence having regard to the need to be satisfied beyond reasonable doubt whether by virtue of s.107VH(2)(b) or the combined operation s.107VH(3) and s.47(2) of the Act.

The orders which I therefore make are that:-

(1) The appeal be allowed;

(2) The decision of the Repatriation Review Tribunal be set aside;

(3) The matter be remitted to the Tribunal to be heard and decided again according to law in the manner I have indicated after the hearing of such further evidence as it may decide to receive.

(4) The respondent pay the appellant's costs of this appeal and of appeal No. G16 of 1980.