Bushell, A.W. v Repatriation Commission
[1990] FCA 415
•13 AUGUST 1990
Re: ALLEN WILLIAM BUSHELL
And: REPATRIATION COMMISSION
No. G223 of 1989
FED No. 415
Veterans Entitlements
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)
CATCHWORDS
Veterans Entitlements - Appeal from decision of Administrative Appeals Tribunal rejecting veteran's claim - Question before Tribunal whether applicant's essential hypertension caused by war service stress - Conflicting medical evidence as to relationship between stress and hypertension - Whether Tribunal misdirected itself as to appropriate question - Whether primary facts found by Tribunal supported conclusion that there was no reasonable hypothesis of a link between the applicant's condition and his war service stress - Failure of Tribunal to deal with applicant's alternative case that hypertension caused by alcohol intake stemming from war service.
Veterans Entitlements Act 1986, s.120
HEARING
SYDNEY
#DATE 13:8:1990 Counsel for the Applicant: Dr G.D. Woods, QC and
P. Dwyer
Solicitors for the Applicant: M. Richardson
Counsel for the Respondent: A. Robertson
Solicitors for the Respondent: Australian Government Solicitor
ORDER
The appeal be allowed.
The decision of the Administrative Appeals Tribunal of 7 April 1989 be set aside and the matter be remitted to the Tribunal for further hearing and determination according to law.
The respondent pay to the applicant his costs of this proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is the second occasion on which, in his quest for the grant to him of a war service disability pension, Allen William Bushell has appealed to this Court against a decision of the Administrative Appeals Tribunal. Upon the earlier occasion, on 8 February 1988, a Full Court allowed Mr Bushell's appeal and remitted the matter to be heard and decided again, with or without further evidence.
For the purpose of the new hearing, the Tribunal was reconstituted, being comprised by Deputy President C J Bannon, QC. The primary case which was advanced to Mr Bannon was that the applicant suffered from essential hypertension and that there existed a reasonable hypothesis that this condition was caused by his war service. The respondent conceded that the applicant suffered from essential hypertension but it contested the reasonableness of the hypothesis asserted by the applicant.
For the purposes of this appeal, it is not necessary to recite in any detail the facts accepted by the Tribunal. It is sufficient to say that the applicant served in the Royal Australian Air Force from 30 June 1941 until January 1946. During that period he spent 12 or 13 months in combat areas in New Guinea and a few months, towards or just after the end of the war, at Morotai in the Netherlands East Indies. The applicant suffered stress problems during his service and, in October 1945, he was declared permanently unfit for service on the grounds of "temperamental instability". Whilst he was at Morotai, the applicant suffered emotional problems about which he sought advice from Dr McGeorge, a psychiatrist. He said that Dr McGeorge advised him on discharge to "keep away from doctors, avoid medication, and have a few beers every afternoon when I knocked off and to have them with people other than the people with whom I worked".
After his discharge from the Air Force the applicant purchased a hire-car and mail delivery business. The applicant described this as a fairly stress-free environment, but he did have some stress problems in his family relationships. The applicant followed Dr McGeorge's advice regarding drinking, having about four middies of beer each afternoon until June 1985 when he reduced his intake following an acute myocardial infarct.
There was conflicting evidence before Mr Bannon upon the question whether essential hypertension could be caused by stress. Mr Bannon described all four of the witnesses who dealt with this matter as "well respected medical practitioners". He made this summary of the contest between them:
"As may be expected, the experts called in support of the application maintain that the hypothesis is reasonable, while those called on behalf of the respondent have a contrary opinion. Of course the reasonability of the hypothesis is not a matter committed by law to the witness, but is a matter for this Tribunal to decide pursuant to s.120(3) of the Act, upon the material before it."
Mr Bannon noted various papers referred to by the witnesses in support of their respective views and also their opinions as to other possible causes of stress. He mentioned "excessive sustained alcoholic intake, obesity, excessive salt intake and the well favoured view of genetic predisposition".
It is not necessary for me to reproduce Mr Bannon's summary of the views expressed to him by the various medical witnesses. But I should set out a passage from a report of Dr Zelman Freeman, which Mr Bannon accepted, and his comments therein:
"'The question of whether an anxiety state or stress can cause and lead to sustained hypertension can be looked at from two points of view. The first is the clinical one wherein large numbers of patients are followed for long periods of time and are subject to study by various analytical means and the second is to rely heavily on laboratory experiments and hypothetical constructs whereby, as Dr Schiller suggests, adrenalin and nor-adrenalin in response to anxiety or stress can lead to permanent elevation of blood pressure.
As a clinical cardiologist clinition with 45 years of medical experience, my view is that the former approach is the most effective in determining the response of man in contrast to animals or experimental data in determining the effect of stress or anxiety blood pressure and most of the studies which I have quoted in my report . . . are clinical studies which on balance did not find a nexus between anxiety, stress or psychological factors and the onset or progression of essential hypertension. It must be admitted that despite intense research into this problem, no entirely satisfactory cause has been determined for essential hypertension, beyond the association with a strong genetic element, an increase in body mass index and alcoholism.'
I accept Dr Freeman's statements as quoted above. It seems to me that ten clinical studies are worth one hundred paper experiments, and that experiments on animals have little weight compared to observed clinical effects in human beings. In his oral evidence Dr Freeman also added that whereas the hypothesis of stress as being related to essential hypertension was in vogue in the past, and was held, and still is held, by some respectable medical practitioners, modern studies have discounted that view and he preferred the works of Professor Ferguson and Frommer, a study of numerous government employees, the work of Biddell Thomas, a study of 1200 medical students and of Crump in 1979. He also said Brown, who is very esteemed, did not find a rise in levels in mild hypertensives. As I accept Dr Freeman's views of the paper studies, which form the basis of the views of Drs Schindler and Miller, and because I prefer Dr Freeman's view that clinical observation outweighs paper studies, animal experiments and retrospective surveys, I am satisfied that after consideration of the whole of the material before me that that material does not raise a reasonable hypothesis connecting the veteran's essential hypertension with the admittedly war-caused condition of stress from which he has suffered, and still suffers."
Mr Bannon then referred to the evidence of Professor O'Rourke, who also discounted the relationship between stress and essential hypertension. In the course of this reference he said:
"His comments which I accept as more probable than the contrary views expressed by the pro-stress papers, point to factors revealed by studies done by C.F. Booze, Monk 1980, A. Avolio and Caroline Thomas and, in particular, to the authoritative textbook by Weatherall, Ledingham and Warrell, Oxford Textbook of Medicine, 1987 which concludes 'Although there is a clear relation between mental and emotional stress and a temporary rise in blood pressure, there is no evidence that this leads to a sustained rise.' I also take into account his evidence . . . as corroborative of his opinion that the hypothesis of causal connection between stress and essential hypertension is not supported by clinical observation and is rejected by authoritative text books."
After making some other comments, Mr Bannon concluded:
"The evidence of Dr Freeman and of Professor O'Rourke satisfies me that although the hypothesis of stress as contributing to the onset of essential hypertension has been advanced in a number of papers, that hypothesis is not reasonably based. That being so, and however well respected Drs Schiller and Miller may be in their profession, I am required by the terms of s.120(3) of the Act to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran's essential hypertension was war-caused. It is a matter of regret for me that the decision of disputed matters between well respected physicians is left to a layman such as myself, who has no expertise in medical matters. It is also a matter of regret that elderly and ill veterans who have rendered service to their countries are denied a war pension because of the terms of the Act. However, I must apply the law as I see it."
It is common ground between the parties that the Tribunal's task was to determine whether the evidence demonstrated the existence of a reasonable hypothesis connecting Mr Bushell's essential hypertension with his war service: see s.120(3) of the Veterans' Entitlements Act 1986, the discussion of that provision in East v Repatriation Commission (1987) 74 ALR 518 at pp 533-534, Webb v Repatriation Commission (1988) 78 ALR 696 and Gilbert v Repatriation Commission (1989) 86 ALR 713. But, as Beaumont J pointed out in Webb at first instance, (see 76 ALR 135) "the question whether an hypothesis is 'reasonable' is one thing; to determine whether, as a matter of professional opinion, that hypothesis represents the preferred view is a different matter: a number of opinions may be held by a number of experts in the field; each view may be reasonably held notwithstanding that they may lead to different conclusions."
Counsel for the applicant submit that Mr Bannon overlooked this point and that he asked himself the wrong question. They say that, instead of considering whether the view advanced by the experts called on behalf of the applicant was a reasonable hypothesis linking stress with essential hypothesis, Mr Bannon sought to determine the factual correctness of the hypothesis. His search for the "preferred view" is demonstrated, say counsel, by phrases such as "I prefer Dr Freeman's view" and "more probable than the contrary views" in the passages quoted above.
I am not persuaded that Mr Bannon misunderstood the question to be determined. The phrases cited by counsel are couched in comparative language. But the reasons for decision must be read as a whole. I have already quoted the passage in his reasons wherein Mr Bannon stated his task. No exception has been, or could be, taken to that formulation. Shortly thereafter, Mr Bannon made this observation:
"It being axiomatic that a hypothesis is a theory or supposition which has not been proved, one theory which has been advanced as to the onset of essential hypertension is that it is caused by or contributed to by stress."
This passage demonstrates that Mr Bannon was aware that he had to deal with an unproved theory, so that it would be wrong to reject a postulated hypothesis simply because it was unproved. He recognised that the critical question was whether the hypothesis was reasonable. And in the penultimate paragraph of his reasons, quoted above, Mr Bannon stated his conclusion in unexceptional terms: "(the) hypothesis is not reasonably based".
The problem which I have with Mr Bannon's reasons, with respect, is that the evidence which he accepted, and which he preferred to the competing evidence of the applicant's witnesses, seems to me incapable of establishing the conclusion which he reached. Mr Bannon relied primarily on the evidence of Dr Freeman. In the opening sentence of the passage in his report which Mr Bannon quoted in his reasons, and which I have reproduced above, Dr Freeman stated the issue in these terms: "The question of whether an anxiety state or stress can cause and lead to sustained hypertension . . ." (emphasis added). If Dr Freeman had answered that question in the negative, his opinion would have provided support for Mr Bannon's conclusion that the hypothesis relied upon by the applicant was not reasonable. As a matter of logic, if stress cannot cause hypertension, the applicant's hypothesis must be unreasonable. But Dr Freeman did not answer this question in the negative, at least not in that part of his evidence which Mr Bannon accepted. In the quoted passage he compared two methods of investigating the problem: clinical observation and laboratory experiments. He gave reasons for preferring the former and said that his clinical observations did not support a link between stress and hypertension. And he indicated a preference for more recent studies which did not demonstrate the existence of the suggested link. But giving full weight to all of that evidence, it does no more than indicate that Dr Freeman preferred the view that there was no relationship. He did not assert that there was no link, or that there could be no link. It would have been difficult for him to do this, given his admission that "no entirely satisfactory cause has been determined for essential hypertension".
Similar comments may be made about the evidence of Professor O'Rourke. Professor O'Rourke expressed a clear preference for the view that there was no long term connection between stress and hypertension but, at least in the parts of his evidence accepted by Mr Bannon, he did not say that the contrary view was unreasonable, or that there was no connection between the two conditions.
In my respectful view Mr Bannon did fall into error in regard to this aspect of the case. His error was not that he misunderstood the nature of his task but that the primary facts found by him were incapable of supporting his ultimate conclusion. He did not find any facts which, as a matter of law, were capable of supporting the conclusion that the hypothesis advanced on behalf of the applicant was unreasonable. The accepted evidence did no more than show that the postulated hypothesis was less likely to be accurate than the hypothesis that there was no link between stress and hypertension. As Beaumont J pointed out, that is not enough to justify rejection of a claim.
Having regard to the foregoing, it is strictly unnecessary to deal with a subsidiary argument put on behalf of the applicant: that Mr Bannon erred in law in failing to address an alternative case advanced by him to the Tribunal and which claimed a relationship between war-caused alcoholism and his hypertension. Mr Bannon made no reference to any such case in his reasons for decision. There was evidence that the "few beers" led the applicant into a problem of alcoholism. There was also evidence that he was overweight. And it was common ground that alcoholism and obesity could cause hypertension. Whether Mr Bushell's alcoholism and obesity should be attributed to his war service was a contentious matter. But Mr Bannon made no findings upon it.
When this second ground was argued before me, I inquired of counsel whether this alternative case had been pressed in final submissions. Counsel differed in their understandings of that matter. So, at my request, they obtained a transcript of those submissions. This transcript was sent to my associate, with written submissions on behalf of each of the parties.
Having read that material, there is no doubt in my mind that the applicant's solicitor maintained his reliance upon the alcohol point. Although his address dealt mainly with stress, he referred specifically to Dr McGeorge's advice and Mr Bushell's use of alcohol as a factor in causing his hypertension. The solicitor for the respondent understood this. In his address he said: "My friend has also suggested that alcohol might have played a role" and went on to deal with the evidence regarding alcohol given by all four of the medical witnesses. It is understandable that, in a case dominated by the stress hypothesis, Mr Bannon overlooked dealing with the applicant's case on alcohol. But this alternative case was made, supported by evidence and maintained in final submissions. The applicant was entitled to have a ruling on that case, so the omission of the Tribunal to deal with it was an error of law.
I have considered whether the conclusion which I have reached on the first point discussed above entitles the applicant to an order in this Court finally disposing of the matter in his favour. If it were possible to say that the material before the Tribunal did not negative the existence of a reasonable hypothesis of a connection between stress and essential hypertension, Mr Bushell would be entitled, as a matter of law, to a finding in his favour. The scheme of s.120 of the Act is that a claim must be granted unless the Commission - or, on review, the Tribunal - "after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person". In other words, if the evidence includes an hypothesis, the reasonableness of which is supported by expert opinion and which the Tribunal is not satisfied is unreasonable, an applicant must succeed. I have concluded that the evidence accepted by Mr Bannon, as identified in his reasons for decision, does not negative the reasonableness of the hypothesis advanced on behalf of the applicant, that is, that it leaves open the possibility of a reasonable hypothesis, even though this hypothesis is not the preferable view of the matter. But there was other evidence before the Tribunal, upon which no findings were made. It is theoretically possible that this evidence does contain material upon which the Tribunal could properly find that the postulated hypothesis is not reasonable. I emphasise that I am not suggesting that there is any such material. As the facts of the matter are within the exclusive purview of the Tribunal, I have not read the evidence. All that I am saying is that, as the possibility cannot be excluded, the matter must be returned once again to the Tribunal. This is unfortunate, but I see no alternative. It cannot be said that, as a matter of law on the present findings, the applicant must succeed in his claim.
However, the recommittal of the matter to the Tribunal need not cause great inconvenience. I see no difficulty about Mr Bannon continuing to deal with it. It may be that neither party will wish to call further evidence and that the re-hearing can be confined to a receipt of submissions on the matters discussed in these reasons.
As to costs, apparently no special arrangement has been made between the parties. Both counsel suggested that costs ought to follow the event. Accordingly, I order that the respondent pay the costs of the applicant.
Solicitor
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