Brown v Repatriation Commission

[2003] FCA 1130

FEDERAL COURT OF AUSTRALIA

Brown v Repatriation Commission [2003] FCA 1130

VETERANS AFFAIRS - entitlements - Statement of Principles - inability to obtain appropriate clinical management of sarcoidosis - meaning of ‘inability’

Veterans’ Entitlements Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

Brew v Repatriation Commission (1999) 56 ALD 403;  (1999) 94 FCR 80

JUDITH MARY BROWN v REPATRIATION COMMISSION
Q175 OF 2002

COOPER J
BRISBANE
17 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q175 OF 2002

On appeal from the Veterans’ Affairs Division of the Administrative Appeals
Tribunal constituted by Senior Member KL Beddow and Dr P Kennedy

BETWEEN:	JUDITH MARY BROWN APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	17 OCTOBER 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.The applicant is to pay the costs of the respondent, to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q175 OF 2002

On appeal from the Veterans’ Affairs Division of the Administrative Appeals
Tribunal constituted by Senior Member KL Beddow and Dr P Kennedy

BETWEEN:	JUDITH MARY BROWN APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	COOPER J
DATE:	17 OCTOBER 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

1. On 22 December 1999, the applicant lodged a claim under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) for medical treatment and a pension for incapacity arising from a number of medical conditions which included sarcoidosis. The claims were refused as not being war-caused. The decision to refuse the claim was affirmed by the Veteran’s Review Board and later by the Administrative Appeals Tribunal (‘the AAT’). The applicant now seeks a review of the AAT decision, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Such an appeal is limited to judicial review to correct legal error. It does not involve merits review of the factual findings made by the AAT.

   THE PROCEEDINGS IN THE AAT

2. On 18 October 2002, the AAT affirmed the decision to refuse to grant the claim and gave short oral reasons for this decision.  Those reasons were later incorporated in written reasons.  The oral reasons of the AAT, incorporated in par 10 of the written reasons, provided:

   ‘The Tribunal is in a position to give its decision.  The Tribunal’s decision will be to affirm the decision under review.  The Tribunal’s brief reasons for that decision are as follows:  the applicant had eligible war service from 22 February 1943 to 23 June 1945.  She was a WRAN involved in telegraphic listening duties in Australia, principally at HMAS Harman located in the Australian Capital Territory near Queanbeyan.  The applicant worked extensive shift work and was generally confined to the naval facility.  She developed a cough with tiredness which was persistent and eventually caused her petty officer to suggest she seek medical attention.

   The applicant chose not to adopt the petty officer’s suggestion because she believed that too many people were attending the medical facility at HMAS Harman.  She told the Tribunal she did not want to go there.  It is not the case that the applicant was ordered to see the medical orderly and her non-attendance apparently had no consequence, except that she did not receive any medical attention for the cough or tiredness.  The condition of sarcoidosis was not diagnosed until 1958.  At the time of eligible war service there was not any effective treatment of the condition.  That means only that there was not an effective treatment available.  The evidence is that even today most cases of sarcoidosis do not require specific medication.  The applicant did receive treatment after she was diagnosed in 1958.

   Treatment is not to be confused with appropriate clinical management which embraces cases where there was treatment and cases where no effective treatment is available.  The applicant did not receive appropriate clinical management of the undiagnosed sarcoidosis because she chose, against the suggestion of her superior, not to seek medical treatment.

   We are satisfied on the balance of probabilities that there was no relevant inability to obtain appropriate clinical management.  In particular, we are satisfied that the fact of lack of medical knowledge at the time compared with the position today is not a factor in determining appropriate clinical management at that time.  The effect of Statement of Principles No 289 of 1995 is that there will not be a relevant connection with eligible service except where there was an inability to obtain appropriate clinical management of sarcoidosis.  We are not satisfied that the requirement of the Statement of Principles No 289 of 1995 has been met. Therefore the decision under review will be affirmed.’

   THE LEGISLATIVE SCHEME

3. Eligibility for compensation is dealt with in s 13 of the Act. That section, so far as presently relevant, provides:

   ‘13(1)  Where:

   (a)      the death of a veteran was war-caused; or

   (b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;

   the Commonwealth is, subject to this Act, liable to pay:

   (c)in the case of the death of the veteran - pensions by way of compensation to the dependants of the veteran; or

   (d)in the case of the incapacity of the veteran - pension by way of compensation to the veteran;

   in accordance with this Act.’

4. War-caused injuries and diseases are dealt with by s 9 of the Act. Section 9(1)(e) provides:

   ‘9(1)    Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
   ...

   (e)the injury suffered, or disease contracted, by the veteran:

   (i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

   (ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

   and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

   but not otherwise.’

5. The applicant did not ‘render operational service’ (as defined). Consequently, in order to make out an entitlement to her claim, she was required to satisfy the standard of proof contained in s 120(4) of the Act. That subsection provides:

   ‘120(4)           Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

   Note: This subsection is affected by section 120B.’

6. Section 120B of the Act, so far as presently relevant, provides:

   120B(3)          In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

   (a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

   (b)there is in force:

   (i)a Statement of Principles determined under subsection 196B(3) or (12); or

   (ii)a determination of the Commission under subsection 180A(3);

   that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.’

7. At all relevant times to this claim, there was in force an applicable Statement of Principles (‘SOP’) determined under s 196B(3) of the Act. The relevant SOP concerning sarcoidosis was numbered 289 of 1995. The SOP, so far as is presently relevant, stated:

   ‘1.       Being of the view that on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that sarcoidosis and death from sarcoidosis can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (the Act), that the factor that must exist before it can be said that, on the balance of probabilities, sarcoidosis or death from sarcoidosis is connected with the circumstances of that service, is:

   (a)inability to obtain appropriate clinical management for sarcoidosis.

   2.        Subject to clause 3 (below) the factor set out in paragraph 1(a) must be related to any service rendered by a person.

   3.        The factor set out in paragraph 1(a) applies only where:

   (a)the person’s sarcoidosis was contracted before a period, or part of a period, of service to which the factor is related;  and

   (b)the relationship suggested between the sarcoidosis and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act.’

   (Original emphasis)

8. For the purpose of the SOP, the applicant must show an inability to obtain appropriate clinical management for sarcoidosis before it can be established that, on the balance of probabilities, sarcoidosis is connected with the circumstances of the applicant’s non-operational eligible war service.

9. To succeed in her claim that sarcoidosis was connected with the circumstances of her non-operational eligible war service, the applicant was required to prove on the balance of probabilities that:

   (a)there was a diagnosis of sarcoidosis;

   (b)there was an inability to obtain appropriate clinical management for sarcoidosis;

   (c)the inability to obtain appropriate clinical management was related to any service of the applicant;

   (d)the sarcoidosis was contracted before a period, or part of a period, of service during which she was unable to obtain appropriate clinical management for the condition;  and

   (e)as required by s 9(1)(e) of the Act, the sarcoidosis was contracted while the applicant was rendering eligible war service and that it was contributed to in a material degree by, or was aggravated by, the subsequent war service.

   THE NECESSARY FACTOR UNDER THE SOP

10. It was an issue before the AAT for its consideration whether, on the balance of probabilities, there was an ‘inability’ on the part of the applicant to obtain appropriate clinical management for sarcoidosis during the period of her eligible war service at HMAS Harman in the Australian Capital Territory. 

11. The meaning of the term ‘inability’ in the phrase ‘inability to obtain appropriate clinical management’ was considered by a Full Court of this Court in Brew v Repatriation Commission (1999) 94 FCR 80. At first instance, Sundberg J said ((1999) 56 ALD 403):

    ‘[10]   It was submitted that the Tribunal had misconstrued factor (e).  The meaning of “inability” is that given by the Macquarie Dictionary (2^nd ed 1991) - “lack of ability; lack of power, capacity, means”.  See also the New Shorter Oxford English Dictionary (1993) - “The condition of being unable; lack of ability, power or means”.  The tribunal was in my view correct in saying that a person who chooses not to seek medical treatment is not for that reason unable to obtain it.  The word “inability” is directed to an objective barrier to obtaining treatment, such as the absence of medical officers, and not to a lack of willingness to obtain treatment.  It was also argued that the applicant was unable to obtain medical treatment because she did not during her service know she had varicose veins.  If this would otherwise be an “inability” for the purposes of factor (e), it is ruled out by cl 2 of the SoP, because her lack of awareness is not a factor that is related to her service.’

12. On appeal, it was argued that Sundberg J had erred in focusing on the ‘objective barriers’ to obtaining appropriate clinical management.  The majority of the Full Court in the judgment of Merkel J agreed with by Mansfield J, said (at 87 pars [23] - [28]):

    ‘[23]   The primary contention of the appellant was that the AAT and Sundberg J had misconstrued cl 1(e) by focusing entirely upon “objective barriers” to obtaining appropriate clinical treatment and thereby failing to have regard to “subjective barriers” to obtaining treatment.  It was contended that in a particular case, but more specifically in the present case, the subjective barriers believed by the appellant to exist were capable of constituting or resulting in an “inability” to obtain appropriate clinical management for her varicose veins.

    [24]    Counsel for the respondent did not dispute that subjective factors may, in an appropriate case, constitute or result in an inability to obtain appropriate clinical management but submitted that, as the arbiter of fact, it was plainly open to the AAT to conclude from the material before it that the matters relied upon by the appellant did not fall within cl 1(e).

    [25     It is well established that the Court is here concerned with beneficial legislation intended to confer significant benefits on veterans with the consequence that a beneficial, rather than a strict or narrow, approach should be taken to the construction of the legislation.  In the present context that means that whether “inability” is established in a particular case is to be approached as a matter of practical reality rather than by a theoretical approach to that issue.

    [26]    In my view Sundberg J was quite correct in treating the meaning of “inability” in cl (1)(e) as “lack of ability; lack of power, capacity, means” (The Macquarie Dictionary) or “the condition of being unable; lack of ability, power or means” (The New Shorter Oxford Dictionary).  The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the “condition of being unable”.  Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case.

    [27]    Thus, if Sundberg J was saying that cl 1(e) is confined to an inability that is an “objective barrier to obtaining treatment”, I would respectfully not agree with his Honour.  However, I doubt that his Honour was intending to exclude factors, whether external, objective or otherwise, that result in a claimant for a pension being in a “condition of being unable” to obtain treatment.

    [28]    In my view, in context, Sundberg J was referring to circumstances the effect of which result in a claimant being unable to obtain treatment in the sense of any of the dictionary meanings of “inability” referred to by his Honour.  Thus, as his Honour noted, the absence of medical officers would constitute a barrier in that sense but not a mere “lack of willingness to obtain treatment”.  His Honour ought not to be taken as having concluded that external factors, such as a threat of sanctions by superior officers if treatment is sought, cannot constitute or result in an inability to obtain treatment within the meaning cl 1(e) where, by reason of such factors, the claimant understandably concludes that she is unable to obtain appropriate treatment.’

    THE CASE IN THIS COURT

13. The applicant contends that the AAT erred in that it failed to apply the test of ‘inability to obtain appropriate clinical management’ as explained by the Full Court in Brew v Repatriation Commission to the whole of the evidence before the AAT.  In particular, the applicant submits the AAT limited its consideration of the applicant’s conduct to her failure to follow the advice of her Petty Officer to go to the sick bay to seek treatment for her cough and tiredness.  It is contended that the AAT failed to look at any other material or evidence which was available at the time which the applicant submitted contradicted the conclusion that the applicant chose not to obtain appropriate clinical management for her condition.  The other material and evidence, the applicant contends, required the AAT to find that:

    (a)objectively the applicant was unable to obtain appropriate clinical management of her undiagnosed sarcoidosis during her service at HMAS Harman because there was no medical practitioner at the sick bay to make the diagnosis and assess the needs of the applicant as to any treatment (the sick bay attendants being unable to perform such functions);  and/or

    (b)objectively she was unable to obtain medical attention because of the nature and circumstances of her work;  and/or

    (c)subjectively, as a matter of practical reality, the applicant believed that she could not access a doctor during her service at HMAS Harman, because of the nature and circumstances of her work and the fact that there was no doctor at the sick bay.

    THE EVIDENCE BEFORE THE AAT

14. The papers before the AAT contained a letter written by the applicant to the Department of Veteran’s Affairs on 5 September 1992.  In that letter she stated:

    ‘For most of this period of time I was stationed at ‘HMS [sic] Harman’ Canberra engaged in listening to Japanese wireless messages.  My health was not very good but it was looked upon as being infra-dig to go to the medical officer ...
    ...
    I developed a very bad cough while in the Wrans that later turned into Sarcoidosis which at first was thought to be very like T.B. ...’

    The applicant was not questioned on the hearing before the AAT as to this letter, or why she expressed the belief that it was ‘infra-dig’ to go to the medical officer if one was sick.

15. By letter dated 17 March 2000, the Returned Services League of Australia made a submission to the Department of Veterans Affairs on behalf of the applicant.  That letter said, in part:

    ‘... She was unable to receive proper clinical treatment or diagnosis, due to the lack of medical facilities.  The staggered hours she was on duty, plus the critical nature of her duties was a barrier to her obtaining medical support from another unit.  The attitude in those days was if you had chest problems and you are not apparently any worse than any other person, you were obliged to remain at your post.  It must be remembered that the attitude towards the female services was more critical then and the senior female officers were under pressure to prove that their members were as capable as male serviceman, [sic] this pressure was also on the lower ranks.  [T]herefore taking time off for chest complaints would not be acceptable.  Mrs Brown’s medical records do not show one visit to an MO from the time she enlisted to the day she was discharged, it is hard to believe that Mrs Brown did not have a medical problem during that time, but it does show that as Mrs Brown stated she was unable to receive appropriate clinical management for any medical problem.’

16. The applicant was not examined on the hearing before the AAT with a view to making good these assertions.

17. The applicant provided a short written statement in support of her claim dated 8 July 2001.  In it she said, in part:

    ‘I joined the Wrans from University when I was nineteen years of age.  After early training in Melbourne-Port Melb., Albert Park, Moorabbin I was transferred as a Wireless Telegraphist to HMAS Harman outside Canberra.  Here under oath of secrecy I was assigned to shift work listening to Japanese messages (Code).

    Our section was very secret and treated like a war zone.  After long cold nights of shift work and days as well I became extremely tired and developed a very bad cough, as well as losing weight.  It was suggested that I go to sick Bay because of my cough but I thought I would probably get over it and as sick bay was always overcrowded.  I did not go.  There was not a doctor there.  I also had shortness of breath.  I was quite healthy before I joined the Wrans but when I left I was not nearly as healthy.’

1. In a medical report of Dr Ian Feather dated 25 February 2002, the applicant is reported as stating:

   ‘The main symptom at that time was an intractable cough and feeling of tiredness.  She did not seek medical attention as she said she was young and thought that it would all just go away.’

   The report also includes the statement:

   ‘She felt she was unable to access a doctor during that time with only access to sick bay where there were no doctors present.’

2. The applicant gave oral evidence before the AAT.  During evidence-in-chief, she stated:

   ‘Yes.  Now, during this period of time that you worked at Harman, or it might have been before hand, did you develop some medical problems?---Yes.  I well, during the time I developed this very bad cough.  Well, you know, it became a very bad cough.

   Do you recall where you were when you developed the cough?--- Oh well, I was in Harman somewhere, you know - probably working there at the - - -

   What was the weather like at Harman?--- It could be very, very cold.

   Yes?---Very cold, and especially at night.

   Yes.  Now, can you talk a bit more about this cold you developed, or this cough you developed?---Yes.  Yes.

   Yes?---And I was very tired.  I used to get very tired, and very hard to get up in the morning to go on the shift.  And - - -

   What about your general feeling of well-being?  How did you feel?---I don’t think I felt marvellous.  I mean, I was probably, you know - - -

   When this came on, what did you think it was?---I didn’t really - I just thought I had a very bad cough and probably bronchitis or something.  I’d never been ill and, you know, I thought it would just go.

   Yes.  Did you present to sick bay?---No, I didn’t because - - -

   Why was that?---Well, because there were so many there always.  It was overflowing and, you know, it wasn’t much point.  There wasn’t a doctor there - just the sick bay attendants.

   And were the sick bay attendants nurses or medics?---I’ve got no idea.

   You don’t know?---But I don’t think - you know, they weren’t nurses, I don’t think.

   Yes?---I don’t know.  They might have been.

   And how - there was a sick bay at Harman, wasn’t there?---Yes, there was a sick bay.

   Did you ever go to sick bay - - -?---No.
   ...
   Did you have any ongoing medical exams while you were at Harman?--- I don’t think so.

   Okay.  You didn’t report to sick bay because you said - - -?---No.

   - - - that it was always overcrowded?---The - worrying about the what? 

   It was overcrowded?---Yes.

   How did you know it was overcrowded?---I was told.  Everybody’s talking about it.

   Everybody wanted to go to sick bay, did they?---No.  Well, they had a lot of patients in sick bay.  I might have gone once, but I can’t really be sure about that.

   All right?---Yes.  I certainly didn’t lie down on it, anyway.

   But why - and you didn’t go because you thought there was no need;  is that correct?---Well, I didn’t think there was.  I didn’t know I had a disease or anything, you know?  I just knew I had this very bad cough.

   Did it go away?---No.

   Yes?---It didn’t.

   It stayed there?---Yes.

   And - - -?--- And it was very cold so I suppose it was making it worse.

   And how long were you at Harman for?---Two years, I think.

   Yes?---’43 to ’45 - or a bit more than two years, perhaps.

   Can you recall whether you got your cough and the symptoms of - other symptoms, shortness of breath, I think - - -?---Well - - -

   - - - as you’ve said in your statement - midway through your stay at Harman or was it - - -?---Yes, I think it probably would have been. ...’

3. Under cross examination, the applicant gave the following evidence:

   ‘It was suggested - it appears you were suggested to go to the sick bay?---Yes.

   Now, was that by someone - - -?---That was the Petty Officer Wilson.

   Right?---Petty Officer Wilson.  I was probably disturbing everybody else.

   Was that Petty Officer Wilson?---Yes.

   Was that person your superior?---Would he be alive?

   No.  No.  That person, was that your superior?  Was that your immediate superior?---Yes.  He was in the Morse code room.  You know, not Morse code.  The Japanese code room.

   And would you normally take orders from Petty Officer Wilson?---Well, it was just suggested, you know.  It wasn’t an order.  It was just suggested.

   But it was suggested by Petty Officer Wilson that you should attend sick bay?---Yes.  He just, you know, said - - -

   Okay?---I didn’t want to go though.  You know, I didn’t want to go down there and be lying around for ages waiting and, you know.  I was a bit of a silly girl.

   So what dissuaded you from going?---Pardon?

   What dissuaded you?  What was sufficient to say, “No.  I’m not going to go”?---Oh, I don’t know.  I don’t like sick bays much.  I don’t like, you know, being - - -

   But you were sick, weren’t you?---Well, I had this cough.

   Yes?---I didn’t realise I was as sick as I was perhaps.

   And it was the case that you then decided that you weren’t going to - - -?---Yes.  I didn’t worry about it.

   - - - to attend the sick bay?---Mm.

   Was that the only factor?---That’s the only time.

   That was the only time?---Yes.

   Yes.  Was that the only reason you didn’t go?---I think so.

   Okay.  Now, in your - the questions that Mr Clutterbuck asked you, did you say that you attended on doctors outside the service at that stage?---I’m sorry?

   Okay?---It’s terribly annoying, I know.

   When you were at Harman, you were at Harman?---Yes.

   And you had these symptoms?---Yes.

   And you didn’t go to the sick bay at Harman?---No.

   Did you go to any doctors outside?---Well, no, I didn’t.  I didn’t think about it.  I don’t think they could have done much, anyway, could they?  Well, I suppose they could have.

   Well why do you say that?---Well, I don’t think that X-rays in those days showed the - were strong enough to show the sarcoidosis.  I don’t think could possibly [sic] sarcoidosis up.
   ...
   Mrs Brown, in any case, you weren’t aware that you had sarcoidosis at that stage, did you?---No.  I wasn’t, and, you know, I didn’t think it was, you know, frightful, but I knew I had a bad cough.

   So how could a pre-knowledge that - knowing that an X-ray wouldn’t treat the condition - prevent you - - -?---Look, I’m saying that from looking back now.  Looking back now from, you know, what Dr Allen tells me.  I didn’t think about it then.

   Yes?---I didn’t think about going.

   Well, I’m asking you why you didn’t go to a doctor.  You said that you didn’t go to doctors outside your service doctors?---No.  I didn’t.

   Well, for the - - -?---Not until I was, you know, discharged.

   Okay?---Well, I don’t think I did.  I’m sure I didn’t.

   Did it occur to you that you might have gone to a doctor whilst you were on service?---Might be what?

   Did it occur to you to go to a doctor outside the service?---No, it didn’t.  Nobody suggested it.

   DR KENNEDY:  Mrs Brown, when did you first see a doctor anywhere in relation to your cough?---I think - I couldn’t tell you that.  I think probably when I got out of the Navy I would have.’
   ...
   But in terms of looking back to see just how - how severe this cough was at that time, do you remember anything about how severe the cough was or just the fact that you had a cough?---It - it must have been noticeable because Petty Officer Wilson said to go to the sick bay.

   Well, you mentioned that - I think in your letter that when it was suggested you go to sick bay but you said you didn’t go because you thought you would probably get over it.  But you - - -?---Well, I’m not used to being sick.

   No?---I wasn’t worried about my health, you know.

   But you said you thought you would get over it so you didn’t - that was the reason you gave there for not going?---Well, that wasn’t the main reason.  The main reason was, I think, it was all so overflowing and I didn’t think there was a doctor there and I didn’t think there was much point.

   But didn’t you seek out a doctor - you didn’t seek out a doctor when you left the service, you said, for some time?---Well, no, I didn’t think about doing that.’

4. Dr Roger Allen, a thoracic physician, gave evidence to the AAT.  In addition to his medical qualification, he holds a Doctor of Philosophy degree he obtained from research on sarcoidosis.  Dr Allen gave evidence as to the appropriate medical management of sarcoidosis in 1944 - 1945.  He said:

   ‘Right.  What would have been the appropriate management in those particular days?---Oh, probably - just reviewing the patient and making sure they didn’t have tuberculosis and excluding other possibilities because it is not dissimilar to a lot of conditions we still - we treat today.  Often we treat people today with - where there is no treatment basically and we just support them through that illness.  And often they either get better or they die, but still the intervention is often worse than the treatment.

   Doctor, with respect to the clinical management of sarcoidosis, does that not involve actual medical intervention to assist the patient?---No, no.  Often - no, it’s not the case.  Often patients - when I see a patient with sarcoidosis, my first responsibility is to diagnose the condition, and in a large proportion of patients, I just review them.  And there’s no treatment at all and frequently the disease goes away within a year or two of presentation, so I always find it meddlesome to intervene with treatment initially.  And I would only treat a patient if they had evidence of significant end organ damage, progressive disease, debilitating lethargy, things like that or severe eye disease.  So I’d say that the bulk of patients who present even today in all forms, not just for me but for all doctors, and the majority of patients would get no treatment.  No active intervention with .... steroids unless with the passage of time or unless they presented acutely, very severely, treatment would not be given because it’s inappropriate.

   Well, then, for the purpose of this particular statement of principles, would appropriate clinical management have realistically been the exclusion of other causes?---Yes, I think so, provided she did have X-ray changes, which would make one suspect other conditions like tuberculosis.

   Right.  But if the X-rays of course didn’t reveal - - -?---If they were totally normal - I think in those days - not unreasonable, the doctor would have said probably this is just an intercurrent, you know, infection or a flu-like illness or whatever.  But I don’t - I think that in those days the preoccupation was mainly with tuberculosis because they had whole wards of people with - you know, even doctors or nurses and medical students full of - wards full of these people at that time.’

5. Dr Ian Feather, a specialist respiratory physician, also gave evidence.  Dr Feather expressed the opinion that the applicant’s medical condition of sarcoidosis probably began during her period of military service.  As to treatment for the condition in 1945, he said: 

   ‘Well, if it was established the cough and the tiredness was due to sarcoidosis in 1945, what treatment do you believe should have been given?---I think the treatment options in 1945 was very limited.  I guess there would have been issues of supportive care, intervening infections, overall nutrition, those sort of aspect [sic] of care.  I don’t think specific therapy was available.’

   THE FINDINGS OF FACT IN THE AAT

6. A reading of the reasons for decision of the AAT as a whole indicates that the AAT made the following finds of fact:

   (i)The applicant was born on 17 November 1923.

   (ii)The applicant rendered eligible war service as a member of the Women’s Royal Australian Nave Service (‘the WRANS’) from 22 February 1943 to 23 June 1945.

   (iii)The applicant was posted to ‘HMAS Harman’ (‘Harman’) to work in the code room of the naval radio facilities dealing with the interception of radio transmissions by Japanese military forces.

   (iv)Harman was a land-based naval station in the Australian Capital Territory near Canberra and contiguous with Queanbeyan, in the State of New South Wales.

   (v)The work performed by the applicant was of a sensitive nature.

   (vi)The applicant was required to work extensive long shifts.

   (vii)Generally, the applicant was confined to the naval facility.

   (viii)There was a sick bay at Harman for those service personnel at the base requiring medical attention.

   (ix)Until the time of her enlistment the applicant enjoyed good health.

   (x)The applicant developed a persistent bad cough and experienced tiredness during her time at Harman.

   (xi)The applicant’s coughing became such that her Petty Officer advised her to go to the sick bay to seek medical attention.

   (xii)(Inferentially, from the circumstance that her Petty Officer advised the applicant to go to the sick bay to seek medical attention) the sick bay was available to the applicant in the circumstances of her service to attend to seek medical attention for her cough and tiredness.

   (xiii)The applicant did not then, as her Petty Officer had advised her, or thereafter, attend the sick bay to receive attention for her cough and tiredness.

   (xiv)The applicant did not follow the Petty Officer’s advice because she believed that too many people were attending the medical facility at Harman, because she did not want to go, and, because she did not realise that she was ill.

   (xv)The applicant did not attend any private medical practitioner during her time at Harman.

   (xvi)As a consequence of not attending the sick bay, the applicant did not receive any medical attention for her cough or tiredness.

   (xvii)The applicant was diagnosed by a specialist as suffering from sarcoidosis in 1958 and was treated with steroids thereafter.

   (xviii)It is likely that the condition of sarcoidosis from which the applicant suffered began during the time of her service at Harman.

   (xix)At the time of the applicant’s war service there was not an effective treatment available for sarcoidosis, although there was at that time appropriate clinical management for the condition.

   (xx)The applicant did not receive appropriate clinical management of the undiagnosed sarcoidosis because she chose, against the suggestion of her superior, not to seek medical treatment.

   (xxi)There was no inability on the part of the applicant to obtain appropriate clinical management of the undiagnosed sarcoidosis during the period of her service at Harman.

   CONCLUSION ON APPEAL

7. The first basis of the applicant’s appeal is that on the whole of the evidence, she was objectively unable to obtain appropriate clinical management of her undiagnosed condition because there was no medical practitioner at the sick bay at Harman to make the diagnosis of sarcoidosis and implement appropriate clinical management.  That is, the absence of a medical practitioner at the sick bay, without more, objectively operated as a barrier to her obtaining appropriate clinical management of her condition during her period of service at Harman, and that the AAT erred in not finding so.

8. The difficulty which the applicant faces in advancing this submission is twofold:  firstly, that for whatever reason, the applicant chose not to attend sick bay to seek medical attention for her cough and tiredness and the AAT so found;  secondly, the whole of the evidence did not support a finding that access to a doctor was, in all circumstances, unavailable by attendance at sick bay.

9. At its highest, the evidence was that the sick bay was generally operated by attendants as opposed to doctors.  However, there was no evidence to support a finding of fact that access to appropriate clinical management by a doctor was unavailable as a matter of course to service personnel attending the sick bay.  Importantly, the evidence did not support a finding that if the applicant had attended sick bay, with the symptoms which she had, she would not have had access to a doctor either at the time of attending or at some reasonable time thereafter.  Rather, the medical evidence suggests that because the symptoms of sarcoidosis easily mimicked tuberculosis, which was a common contagious disease at the time, further appropriate medical examination may have occurred had she presented at sick bay with the symptoms which she had.  However, because the applicant did not attend seeking attention for her persistent cough and tiredness, it is now not possible to say what access to a doctor, if any, was available to her at Harman during her period of service.

10. The second basis of the applicant’s appeal is that objectively the applicant was unable to obtain medical attention because of the nature and circumstances of her work.  In particular, it was submitted that she was unable to obtain medical attention because the section where she worked was ‘secret and treated like a war zone’, she was required to work extensive long shifts, was generally confined to base, and she was within a service environment as alleged in the submission of the Returned Services League.  The difficulty facing the applicant in this respect is that the evidence does not support such a finding as an objective fact.  At a minimum, the applicant had access to medical attention at the sick bay, and was advised by her Petty Officer to avail herself of it.

11. The findings made by the AAT go to the circumstances of the applicant’s service at Harman.  The evidence was that her Petty Officer suggested to her that she go to sick bay to obtain medical attention for her bad coughing.  Objectively, there was nothing in her circumstances on the evidence which prevented her from acting in accordance with the advice she had received from her superior officer.

12. On the evidence, there was no objective barrier which prevented the applicant from going to the sick bay or seeking out a medical practitioner to obtain medical attention if she chose.  However, the applicant chose not to go to the sick bay and she did not think to seek out a doctor.  The oral evidence of the applicant clearly identifies the operative reasons for her not going to sick bay or seeking out medical attention from a doctor.  Those reasons do not include any objective inability to do so because of barriers created by her work situation during the period of her service at Harman.

13. The final basis upon which the applicant put her case was that subjectively, as a matter of practical reality, she believed that she could not access a doctor during her service because of the nature of her work and the fact that there was no doctor at the sick bay, and, that the AAT erred in failing to consider the applicant’s subjective reasons for not seeking medical attention at Harman.  The applicant submitted that the AAT only focused on the choice not to follow the advice of her superior officer to go to sick bay to seek medical attention for her cough, and failed to consider the evidence of her subjective belief at other times.

14. This third ground requires a consideration of whether or not the AAT concentrated on her failure to act in accordance with the advice of her superior officer to attend to sick bay to seek medical attention for her bad cough and tiredness to the exclusion of all other relevant evidence.  That is, if the AAT did fail to consider other relevant evidence, would that evidence support findings to establish a case of a subjective barrier to obtaining treatment of the type recognised in Brew v Repatriation Commission. 

15. It is correct that the AAT placed significant weight on the evidence that the applicant did not follow the advice of her senior officer to obtain medical attention at sick bay.  The evidence was relevant and cogent because it was evidence that the then symptoms were sufficient to cause her Petty Officer, as an objective third party observer, to advise her to seek treatment.  It was also evidence that objectively there were no external circumstances relevant to her specific work which prevented her from seeking medical assistance.  Further, the advice of the superior officer was evidence against the assertion of a culture to dissuade lower ranks from seeking medical attention for minor ailments or evidence that her symptoms were sufficiently serious as to fall outside any such culture.  Although the giving of the advice was put forward as a particular event at one point in time, the AAT did not treat the failure to follow it as a single isolated act.  Rather, the AAT regarded the applicant’s choice not to accept the advice and go to sick bay as a continuing one.  Nor did the AAT fail to consider the reasons why the applicant made the choice not to go to the sick bay and why she failed during the time she was at Harman, after she developed significant symptoms about midway through her two year posting, to seek out a doctor and obtain medical treatment.

1. The questioning of the applicant both in examination in chief and under cross-examination, was directed to her failure to obtain medical treatment during the period of her service at Harman when she was suffering from bad persistent coughing and tiredness.  That period appears to have been for around twelve months.  Her examination in chief was responsive to questions as to why she did not attend sick bay generally in respect of her cough and was not limited to the failure to attend contrary to the advice of her Petty Officer.  Similarly, her cross-examination dealt generally with a failure to attend sick bay and a failure to seek out a doctor during the period to obtain medical advice.

2. The findings of the AAT that she chose not to seek treatment at the sick bay, that she did not want to go to the sick bay and that she did not go because she did not realise that she was ill throughout her time at Harman, were all available on the evidence.  The finding that she did not seek out a doctor to obtain treatment during that time because she did not think to do so, was also available on the evidence.  These findings were of her subjective reasons for acting in a particular way.  None of these findings involves the applicant having a subjective belief that she could not access medical treatment because of the secretive nature of her work, the long shifts she was required to work, being confined to base or because of a culture against her seeking such medical treatment.  The objective reasons the applicant gave for not wanting to go to sick bay were that there were too many people there, it was overcrowded, she did not want to be lying around, and there was no point in going because there was no doctor in attendance.  She did not, in her oral evidence, seek to make out the case of external circumstances operating upon her such as to give rise to a belief reasonably held that she, as a matter of practical reality, could not access appropriate clinical management for the condition causing her persistent coughing and tiredness:  Brew v Repatriation Commission at [28] - [30].

3. The reasons of the AAT are not to be construed minutely and finely with an eye attuned to the perception of error, remembering that reasons are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to ascertain whether some inadequacy may be gleaned from the way in which the reasons are expressed:  Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286 - 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 - 272.

4. On any fair reading of the AAT’s reasons, it considered all of the evidence to form a view as to what were the objective and subjective reasons which caused the applicant not to receive appropriate clinical management of her undiagnosed sarcoidosis during the period of her service at Harman.  This was the process which clause 1(a) of the SOP required.  The AAT found that there were not objective or subjective barriers which caused her an inability to access appropriate clinical management at that time.  It found that she chose not to access such medical treatment as was available to her at and through the sick bay at Harman, and, she did not think to seek out a private doctor.  Neither of those circumstances satisfied the requirement of ‘inability’ in the SOP and nothing in the decision in Brew v Repatriation Commission as applied to the evidence and findings of fact in this case, required a different conclusion as a matter of law.  I am of the view that the conclusion reached by the AAT was reasonably open on the material before it and that in coming to that conclusion it made no error in the application of clause 1(a) of SOP 289 of 1995 to the facts found.

5. The applicant has failed to make out reviewable error and the application must be dismissed.  Costs will follow the event.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:             17 October 2003

Counsel for the Applicant:	R Clutterbuck
Solicitor for the Appellant:	Streeting Haney Lawyers
Counsel for the Respondent:	R Derrington
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 March 2003
Date of Judgment:	17 October 2003