Cooke v Repatriation Commission
[1997] FCA 305
•30 APRIL 1997
CATCHWORDS
VETERANS’ AFFAIRS - whether chronic bronchitis, chronic anxiety state and lumbar spondylosis were war-caused diseases - whether reasonable hypothesis connecting the diseases with the service of the veteran - meaning of reasonable hypothesis - whether the Tribunal correctly understood the differing roles and tasks given to it by different subsections of the legislation - credibility of appellant - preference for one medical opinion over another
PRACTICE and PROCEDURE - whether an abandoned ground of appeal may be re-agitated
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 44
Federal Court of Australia Act 1976 (Cth) ss 24, 28
Veterans’ Entitlements Act 1986 (Cth) s 120 (1), (3)
Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)
Bell v Lever Brothers Ltd & Ors [1933] AC 161
Law v Repatriation Commission [1981] 147 CLR 635
Bushell v Repatriation Commission [1992] 175 CLR 408
Byrnes v Repatriation Commission [1993] 177 CLR 564
East v Repatriation Commission [1987] 16 FCR 517
Webb v Repatriation Commission [1988] 19 FCR 139
Lowerson v Repatriation Commission [1994] 50 FCR 252
Teoh v Minister for Immigration & Ethnic Affairs [1994] 121 ALR 436
Repatriation Commission v Hughes [1990] 13 AAR 34
Critch v Repatriation Commission (Federal Court of Australia, Merkel J, 8 October 1996, unreported)
Repatriation Commission v Owens (1996) 70 ALJR 904
Repatriation Commission v Stares (1996) 66 FCR 594
COLIN MACK COOKE v REPATRIATION COMMISSION
No. WAG 96 of 1995
EINFELD, LEE, CARR JJ
PERTH
30 APRIL 1997
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 96 of 1995
GENERAL DIVISION )
On Appeal from a single Judge of the Federal Court of Australia
Between: COLIN MACK COOKE
Appellant
And: REPATRIATION COMMISSION
Respondent
CORAM: EINFELD, LEE & CARR JJ
PLACE: PERTH
DATE: 30 APRIL 1997
MINUTE OF ORDERS
The Court:
allows the appeal
sets aside the judgment appealed from and in lieu thereof:
a)orders that the decisions of the Administrative Appeals Tribunal be set aside
b)allows the appellant’s claim in respect of his bronchial condition and remits that claim to the respondent for calculation and payment of the appropriate pension
c)remits the other claims of the appellant to the Tribunal to be heard again in accordance with the reasons of the Court, with or without further evidence
(d)orders that the respondent pay the appellant's costs of the hearing and the appeal.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 96 of 1995
GENERAL DIVISION )
On Appeal from a single Judge of the Federal Court of Australia
Between: COLIN MACK COOKE
Appellant
And: REPATRIATION COMMISSION
Respondent
CORAM: EINFELD, LEE & CARR JJ
DATE: 30 APRIL 1997
PLACE: PERTH
REASONS FOR JUDGMENT OF JUSTICE EINFELD
On 8 March 1992 the Repatriation Commission refused the appellant's claim for a war veteran's pension in respect of disabilities caused by three conditions -- chronic bronchitis, anxiety disorder and lumbar spondylosis -- by determining that the injuries giving rise to the disabilities were not war-caused under the Veterans’ Entitlements Act 1986 (Cth) (the Act). By a determination made on 14 October 1994, the Veterans' Appeals Division of the Administrative Appeals Tribunal (the Tribunal) refused to review that decision, so the appellant appealed to a single Judge of this Court (Tamberlin J). His Honour dismissed the appeal on 9 August 1995 and this appeal is from his Honour's decision. As with the hearing below, the appeal is limited to questions of law only: Administrative Appeals Act 1975 (Cth) s 44.
FACTUAL BACKGROUND
The appellant was born on 3 August 1927. After leaving school at the age of fifteen, he worked on various pastoral properties and as a fruit picker. He was an occasional cigarette smoker as a child at school, and later, when he took a position on a pastoral station where his employer smoked and partly paid him with tobacco, he smoked regularly for 3 months. From 1943 to 1945, the appellant worked in various labouring positions and did not smoke. After enlisting in the Australian Infantry Forces (AIF) on 12 March 1946, he was sent to the Greta Army Camp for 8 weeks basic training during which he recommenced smoking at the rate of 8-10 cigarettes per day. This habit continued until 1989-90 because, as he said, "all his friends were smoking".
On 30 May 1946 the appellant was transferred to 38th Works Company in Sydney where he worked as a stevedore. On an occasion during his time there he felt a "sharp pain" in his back when lifting and swinging a box of rifles onto a truck. He reported to the Regimental Aid Post, was given two aspirins and resumed duty. When asked whether he experienced any continuing problem with his back, the appellant stated that he could not pay any attention to it because he had to keep up with his work and did not want to be accused of malingering. He just had to "grin and bear it".
The appellant was transferred to the 2nd Advance Ammunition Depot at Myambat near Sydney in November 1946, where he removed cordite detonators from artillery shells. Breathing in cordite irritated his nose, mouth and throat. He was sent to Japan in January 1947 and posted to Onamichi Training Camp where he was required to participate in regular drill sessions while his company was being readied for service. In his evidence, the appellant described such exertions as a two mile route march followed by a long period standing in the cold and snow, followed by another seven mile march by way of discipline. Apparently the appellant and his company drilled and marched 6 to 8 hours a day. Later in 1947 he joined the regimental band and was posted to Fujiyama Camp, where he had band practice morning and afternoon and marched with the camp guard.
On 8 February 1948 the appellant was admitted to the 20th Australian Field Ambulance in Fujiyama for eight days for acute bronchitis. He was again hospitalised on 9 April 1948 for twelve days with bronchopneumonia and pleural effusion, and spent a further eleven days in convalescence. The appellant has had continuing bronchial symptoms ever since these events, and now suffers from chronic bronchitis.
In November 1948 the appellant was transferred with the regimental band to Hiro where he marched regularly up to 5 hours per day escorting various companies at drill. During this period he was performing a drill called the "crash halt" in which the right foot was raised and stamped on the ground. He claimed that the "crash halt" caused problems with his ankle and back. He also worked part time in the Quartermaster's store in this period.
Between 1950 and 1953 the appellant, as bugler, was required to attend numerous military funerals of service personnel killed in the Korean War. These funerals occurred on average once or twice per week and on some occasions the deceased persons were former band colleagues. The appellant claimed that he found the funerals stressful, and that he has subsequently experienced "flashback" recollections of these events.
The appellant was honourably discharged from the AIF on 20 April 1953 after which he pursued a variety of apparently profitable businesses in Japan, Korea and Vietnam providing insurance and supplies to US military personnel. Some of this work involved fairly heavy physical exertion lifting crates of beer. At times his business arrangements proved to be stressful but he did not suffer significant back problems or any signs of anxiety disorder in this period. The appellant's evidence was to the effect that at this time he had some sort of problem with his legs and the left side of his body including his back, but he never paid much attention to them.
On 10 December 1974 the appellant returned to Australia at the age of 47. He was married and had four children. He unsuccessfully attempted a succession of salesman's positions in a time of inflation and high unemployment. The appellant found the life of a salesman to be more difficult than his previous work. He began to gain weight, and became anxious about his married life, his employment and his ability to support his family. At this point the appellant's underlying tendency towards an anxious personality developed into the chronic anxiety state from which he now suffers.
On 3 March 1988 the appellant lodged a claim for painful circulation in the hip area, which was subsequently identified as including a claim for lumbar spondylosis. On 15 June 1989 the appellant lodged a claim for chronic anxiety, and on 15 July 1989 a claim was made for a respiratory disorder which was later identified as chronic bronchitis.
Certain of the appellant's disabilities have been accepted by the Commission as war-caused including tinea and chronic tonsillitis. However, the conditions of lumbar spondylosis, chronic anxiety and chronic bronchitis were determined not to be war-caused.
THE LEGAL FRAMEWORK
Statutory provisions
The case before the learned primary Judge concerned whether the Tribunal had correctly applied the much litigated former section 120 of the Act, which at the relevant time included these provisions:
Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, 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 the present case it is common ground that the appellant is a "veteran" within the meaning of the Act, and that from enlistment in 1946 to 1953 he was engaged in "operational service".
Basic principles of law
The former section 120 of the Act was considered in many cases including by the High Court of Australia in Bushell v Repatriation Commission [1992] 175 CLR 408 and Byrnes v Repatriation Commission [1993] 177 CLR 564; and by this Court in East v Repatriation Commission [1987] 16 FCR 517; Webb v Repatriation Commission [1988] 19 FCR 139 and Lowerson v Repatriation Commission [1994] 50 FCR 252. Despite the elucidation provided by these authorities, difficulties continued to be experienced in the application of the section. In consequence, for applications lodged on or after 30 June 1994, Parliament legislated new sections 120A and 120B of the Act, inserted by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth), providing quasi-legislative statements of principle to determine whether a hypothesis is reasonable for the purpose of section 120(3).
The theory of the old subsection (3) was clear. In Bushell, Mason CJ, Deane and McHugh JJ stated its purpose at 413:
Sub-section (3) is concerned with whether "the material" raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of subs (3), as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis (emphasis added).
Their Honours were of the view that a reasonable hypothesis within the meaning of the subsection was raised if:
... the material points to some fact or facts ("the raised facts") which support the hypothesis and the hypothesis can be regarded as reasonable if the raised facts are true. (at 414)
The High Court explained the relationship between subsection (3) and subsection (1) in Byrnes at 571:
The position may be summarised as follows: (1) first, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts, or is obviously fanciful or untenable. If the hypothesis is unreasonable the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, subs-s (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond a reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis.
In summary, if a reasonable hypothesis was raised under subsection (3), the Commission, or the Tribunal, could not be satisfied beyond reasonable doubt under subsection (1) that there was no sufficient ground for making the determination unless the whole of the material before the Commission, or the Tribunal, disproved or excluded the hypothesis beyond reasonable doubt. As Mason CJ, Deane and McHugh JJ stated in Bushell at 416:
... unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where for the purpose of section 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, "beyond reasonable doubt, that there is no sufficient ground for making the determination" even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc, with the operational service, it seems convenient to simply treat the case as governed by the application of section 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.
What the former subsection (3) thus asked was whether there were facts raised by the evidentiary material which, if true, would support, or point or give rise to, a hypothesis that was not contradicted by known scientific facts and was not obviously fanciful or untenable. If the material did not raise facts which pointed to the hypothesis, the hypothesis was not raised by the material and was therefore not reasonable. The fact that some evidentiary material may have conflicted with the hypothesis would not of itself be sufficient to say that the hypothesis was obviously fanciful or untenable and had not been raised by the material: Bushell per Mason CJ, Deane and McHugh JJ at 415.
It was not a question of how supportive of the proposed hypothesis the raised facts had to be. As was noted in Bushell, neither scant evidence nor lack of support would make unreasonable a hypothesis raised by the facts and propounded by an expert in the field. At 414, Mason CJ Deane and McHugh JJ said:
Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists ...
Although one basis for rejecting the reasonableness of a hypothesis was if it conflicted with known scientific facts, a hypothesis may still have been regarded as reasonable even if it actually conflicted with well-known or informed medical opinion. As their Honours commented at 415:
Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion. (emphasis added)
Together with section 33(1)(b) and (c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Act insists upon a regime for the determination of this type of claim that avoids legalism and technicality. Indeed, section 119(1) of the Act provides that in considering, hearing or determining, and making a decision in relation to such claims, the Commission or in its place the Tribunal:
(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by sub-section 68(1), was not reported to the appropriate authorities.
As Beazley J and I stated in Lowerson at 269:
The legislative intention was aimed, as a matter of public policy, at assisting claimants to succeed without being subjected to strict or legalistic proof of the hypotheses they raise.
THE APPEAL
The existence of each of the three medical conditions which are the subject of this appeal was accepted by the Tribunal (AB 505, 507, 509). The Tribunal determined, however, that no reasonable hypotheses were raised which linked the conditions with the war service of the appellant, and the learned primary Judge agreed. The appellant contended that in reaching these conclusions the Tribunal and his Honour erred in law.
It is necessary to consider each of the conditions as separately evidenced to and dealt with by the Tribunal.
Chronic bronchitis
The hypotheses
Two separate hypotheses were presented to the Tribunal by the appellant's doctors, Dr Michael Pritchard, a respiratory specialist, and Dr Gregory Deleuil, a general practitioner:
(a)two episodes of acute bronchial infection for which the appellant was hospitalised in Japan in 1948 during his operational service were contributing factors, albeit minor, to the development of chronic bronchitis
(b)a smoking habit indulged in by the appellant for over 40 years was the major contributing factor in the development of chronic bronchitis, and that the habit was caused or contributed to by his operational service
Each of these propositions must be examined separately.
(a) THE TWO EPISODES OF ACUTE BRONCHITIS IN JAPAN
The evidentiary material
The hypothesis of a link between the chronic bronchitis and the episodes of acute bronchitis experienced in Japan in 1948 was supported by the evidence of Drs Pritchard and Deleuil, both orally and in writing. The expertise of these medical practitioners was not challenged by the respondent, and there was no dispute that the two episodes of acute bronchitis in Japan actually occurred.
In his report of 20 October 1993, Dr Pritchard noted that the appellant's past medical history included the two episodes of bronchopneumonia and bronchitis, and concluded that:
The cause of his chronic bronchitis is probably multi-factorial: cigarette smoking, previous respiratory infection and possible nocturnal gastroesophageal reflux associated with sleep apnoea. The episode of broncho-pneumonia for which he was hospitalised in Japan during his military service is not the sole cause of his respiratory problems and may only account for a small component of the cause of his chronic bronchitis.
....
... The most common cause of chronic bronchitis in our society is cigarette smoking. Other causes include industrial exposure, recurrent respiratory infections, gastroesophageal reflux, asthma, etc. (AB 317 Exhibit A4) (emphases added)
When examined during the proceedings before the Tribunal, Dr Pritchard was asked whether he believed that the two incidents of hospitalisation played some role in the appellant's present condition. He replied (emphasis added):
What I meant by what I wrote was that since there are cases reported of recurrent respiratory infection, particularly early in life, leading to chronic bronchitis. I considered it possible that two significant episodes of respiratory infection could have been a contributing factor to developing chronic bronchitis but I can't say more than that. (AB 444)
and
It wasn't a prominent feature of his illness. He may have had the occasional episode of bronchitis since he was in the military service... but certainly not as often as bronchitis every year. (AB 445)
In cross-examination he said:
Q.If we were to say that recurrent respiratory infection were a causal factor in chronic bronchitis, what sort of frequency would you be looking at for that to occur?
A.Well, we're talking about more than just a simple cold once a year, for example, during winter. By respiratory infection we're talking about acute bronchitis - again, with individual differences it's difficult to say - but one or two episodes of bronchitis per year might be enough to - if over a prolonged period of time to lead to persistent productive cough. (AB 449)
In his report dated 18 May 1994 (AB 336), Dr Deleuil reviewed the appellant's bronchitic condition. The report detailed the two episodes of chronic bronchitis suffered by the appellant in Japan and stated in relation to the second episode:
2. This later attack seems to be of some severity and was associated with plural effusion. It is possible that this has contributed to the current bronchitis.
.....
To answer your specific queries:
He has chronic bronchitis
It is possible that it was related to his previous respiratory tract infections which he contracted in Japan in 1948.
...
4. It is likely that smoking has been a significant contributor to this disease. (emphases added)
In his evidence before the Tribunal, Dr Deleuil said of this link:
.... it's possible that they may have contributed to the onset of his chronic bronchitis but what quantification is impossible to say. (AB 476)
The Tribunal's approach
The Tribunal expressed its conclusion in this way:
Dr Pritchard thought there was a possibility that those incidents were a contributory cause of his subsequent bronchitis but could say no more than that. Dr Deleuil, a General Practitioner agreed with Dr Pritchard's opinion. The evidence linking the chronic bronchitis to the two periods of hospitalisation in Japan leaves the matter in the realm of mere possibility. It is insufficient to raise a reasonable hypothesis. If there was any contribution at all with the development of chronic bronchitis some 20-30 years later it was minimal. (emphasis added)
The learned primary Judge concluded (at AB 549) that:
... the above medical evidence indicates that if there is a history of recurrent respiratory infection, in the sense of at least one or two episodes of bronchitis per year, over a prolonged period of time, then such a history might be enough to lead to the persistent productive cough and chronic bronchitis. However, since there was no such history of recurrent respiratory infection, the Tribunal was entitled to form a view that there were not sufficient raised facts to point to a reasonable hypothesis of connection between the two war service episodes of hospitalisation and convalescence 47 years ago and the bronchitis currently suffered by the applicant.
His Honour explained the description by the Tribunal of the link between the chronic bronchitis and the two episodes of hospitalisation for acute bronchial infection in Japan as a "mere possibility" as "a conclusion that the material left open [as] a possibility as opposed to 'pointing to' a connection with war service." His Honour read the reference by the Tribunal to a "minimal" contribution by those infections to the development of chronic bronchitis as a conclusion that "any connection or contribution from these episodes was de minimis and was so tenuous or remote as not to be capable of giving rise to a reasonable hypothesis of connection".
Conclusions on the first bronchial hypothesis
With respect to his Honour, it is not clear that the reasons of the Tribunal may be so explained, for on their face its reasons suggest that it misunderstood the proper construction of the former section 120. By its use of the words "mere possibility" to ground a conclusion that a reasonable hypothesis had not been raised, the Tribunal seems to have understood that a "mere possibility" was inconsistent with a reasonable hypothesis. A hypothesis is the premise on which a supposition is based or a possibility suggested. It is in substance a possibility. Therefore, a statement that a reasonable hypothesis is not raised because it "leaves the matter in the realm of mere possibility" reflects a misconception of the task imposed on the Tribunal by section 120 of the Act as it was at the relevant time.
If the suggested hypothesis depends upon a fact not raised by the material, that is a matter for the Tribunal to decide after defining the hypothesis and the necessary facts raised by the material to support it and make it reasonable. But the Tribunal did not find as a fact that the first hypothesis put forward by medical practitioners on behalf of the appellant, namely, that the war-service episodes of acute bronchitis contributed to the onset of his chronic bronchitis, relied upon an assumption that bronchitis had been suffered by the appellant at least once or twice a year thereafter. Indeed the Tribunal’s reasons appear to accept that Dr Pritchard did not resile from the hypothesis presented in his report. If, in the Tribunal's view, the hypothesis had been modified by Dr Pritchard in the course of his evidence, it would have been necessary for it to say so, and to then determine whether the hypothesis was nevertheless reasonable by ascertaining whether the material before it raised facts which, if true, would support the hypothesis. As I read the Tribunal’s reasons for its determination, it did neither of these things.
In my view, to explain the Tribunal's description of the contribution of the Japanese episodes of acute bronchitis to the development of the condition of chronic bronchitis as "minimal", as a conclusion by the Tribunal that the hypothesis put forward was fanciful or untenable, involves too large a step in reasoning. The medical evidence, part of which was given by a specialist with experience in the relevant field, was to the effect that it was possible that the severe infections in Japan in 1948 contributed to the condition of chronic bronchitis some years later but that the degree of contribution could not be quantified. The Tribunal apparently understood that if the contributions were "minimal", no reasonable hypothesis of connection was or could be raised by the material. Such an understanding is not correct in law. The occurrence of the particular episodes of acute bronchitis suffered whilst rendering operational service in Japan was not disputed, and the possibility of their connection to the current condition was professionally well supported. As stated in Bushell by Mason CJ, Deane and McHugh JJ at 414-415, it will be a rare case where a hypothesis, based on raised facts, can be said to be fanciful or untenable when put forward by such an authority. Therefore, the material raised facts which pointed to and supported the hypothesis raised.
On the facts of this case, for a claim based on this hypothesis to be denied, it was then necessary for the Tribunal to have been satisfied that the truth of a fact inconsistent with the hypothesis had been proved beyond reasonable doubt: Byrnes at 570. This finding was neither made nor open on the material presented.
(b) THE SMOKING HABIT
There was no dispute that the appellant's long-term smoking habit contributed to his chronic bronchitis. Accordingly, the Tribunal was satisfied on the evidence that the appellant suffered from chronic bronchitis and that his history of smoking eight to ten cigarettes per day over a number of years had contributed significantly to that condition. However, the Tribunal did not accept as reasonable the hypothesis that the circumstances of the appellant's war service were connected with the development of the appellant's smoking habit.
Preliminary issue
A causal link between the appellant's smoking habit and his army service was not argued, indeed was specifically abandoned, before the learned primary judge (T33 of transcript of proceedings):
Well, we are not saying that the smoking was war caused. I have no submissions in relation to that. My submissions are based on the hospitalisation. The tribunal found that smoking was really a habit [he] had prior to his war service and did not really change throughout that time. We will really leave that as it is. There is no dispute with that.
Nevertheless, the appellant sought to appeal against the Tribunal's finding on this matter. The relevant ground of appeal was:
... his Honour erred in failing to consider whether the Appellant's smoking habit, which had been found to be a cause of the Appellant's chronic bronchitis, was attributable to the Appellant's eligible war service and accordingly, whether the Appellant's chronic bronchitis was therefore war caused. (AB 558)
Argument from both sides was permitted on this ground of the appeal on the understanding that the Court would consider at the threshold whether an appellant may reagitate as a ground of appeal an issue previously abandoned. The respondent opposed the grant of leave on the ground that the raising of fresh issues at each step of litigation wasted public resources.
In Teoh v Minister for Immigration and Ethnic Affairs [1994] 121 ALR 436 at 445, Lee J, with whom Black CJ concurred, was of the opinion that the appellate jurisdiction and powers of the Federal Court permit the hearing of an appeal point not taken at trial if the:
..... relevant facts have been determined beyond controversy or the question is one of construction of law and it is expedient and in the interests of justice that the point be decided. Leave to amend will not be granted where the effect of the amendment would be the presentation of a new or different case on appeal from that which emerged at trial: see Banque Commerciale SA in liq v Akhil Holdings Ltd [1990] 92 ALR 53; 169 CLR 279 per Mason CJ, Gaudron J at 284. Leave to amend in such matters may depend upon demonstration of the risk of occurrence of injustice if the amendment were not allowed and lack of prejudice to other parties if the amendment were allowed.
Section 24 of the Federal Court of Australia Act 1976 (Cth) confers upon this Court an appellate jurisdiction in the strict sense, not by rehearing. By section 28, however, the Court must ensure that the decision given is just and not constrained by the technical form of the appeal.
It is clear that the appellate jurisdiction and powers so defined do not exclude a discretion in the Court to permit the appellant to raise an issue of fact or law that may fairly be determined on the original evidence: Bell v Lever Brothers Ltd & Ors [1933] AC 161 at 216 per Lord Atkin. In the present case, the point sought to be argued by the appellant required no additional evidence and involved facts raised before the Tribunal which were not the subject of challenge or controversy. The respondent was not able to point to any overt prejudice to its case other than cost consequences if the appellant were allowed to resurrect this argument. I am satisfied that although the point of law which the hypothesis involves was not raised below, it was within the scope of the issues raised by the case as presented to the Tribunal.
The evidentiary material
The raised facts as to the chronic bronchitis and the smoking habit appear to be as follows:
The appellant was born on 3 August 1927. As a school child he smoked cigarettes intermittently every one or two months.
Between the ages of 14 and 16 years, the appellant worked on pastoral properties, and on one property he received free tobacco as part of his wages. At that time, the appellant smoked approximately 25 cigarettes per week for 3 months.
The appellant enlisted and was engaged in operational service with the Australian Army from 12 March 1946 to 20 April 1953.
Due to the ready availability and relatively inexpensive cost of cigarettes in the army, together with peer practice or pressure, the appellant re-commenced smoking upon his enlistment and his posting to Greta Training Camp.
Due to stress and collegiate influence, the appellant continued to smoke for the remainder of his army service. He did not cease until 1989 or 1990.
While in the army, the appellant was hospitalised for 3 days in February 1948 for acute bronchitis.
The appellant was again hospitalised in April 1948 for 15 days with bronchopneumonia and pleural effusion, and spent a further 9 days in convalescence.
The appellant has suffered continuing bronchial symptoms since these events and now has chronic bronchitis (as diagnosed by Dr Pritchard a respiratory specialist).
The most common cause of chronic bronchitis is cigarette smoking. Smoking also aggravates and contributes to bronchitis (the opinions of Drs Pritchard and Deleuil).
10. Another cause of chronic bronchitis is recurrent respiratory infection (the opinion of Dr Pritchard).
11. It is possible that two significant bronchial episodes in Japan were contributing factors to the appellant's chronic bronchitis (the opinions of Dr Pritchard and Dr Deleuil).
12. The main cause of the appellant's chronic bronchitis was the fact that he smoked (the opinion of Dr Pritchard).
The material before the Tribunal thus clearly pointed to facts supporting the hypothesis that the appellant's chronic bronchitis was caused or contributed to by his smoking habit, commenced by reason of events in and circumstances of the appellant's war service. There was no material to suggest that the hypothesis was contradicted by scientific facts or was obviously fanciful.
The Tribunal's approach
In its consideration of the facts, the Tribunal said (emphases added):
... even before joining the Defence Force, the applicant had commenced smoking in at least one job situation and in gatherings when in the company of smokers like most other young men of his age during that period. On the evidence he resumed smoking at the rate of about eight to ten cigarettes per day as soon as he arrived at Greta Army Camp. This was well before he was under any stress and his explanation was that he smoked because everyone else was also smoking. When the applicant was posted to Japan he simply continued on with his smoking habit at the same rate. This is not a case where a veteran's smoking was caused by the stress or other circumstances of his operational service. Although the applicant does claim that he later suffered stress during his service in Japan, this stress did not cause or accelerate his smoking habit, which simply carried on at the same rate. The mere fact that his smoking habit resumed in the Army does not justify a decision that the smoking habit was war-caused without further factors to create a causal connection. (AB 506)
With due respect, I have been unable to discern any evidence to support the Tribunal's statement that before enlistment the appellant smoked when in the company of smokers. The appellant did say that the collegiate factor influenced his actions in resuming smoking and continuing to smoke after he joined the army. It is not necessary for the appellant to have suffered stress during his army service for his smoking habit to be connected with his war service. Whilst stress is commonly associated with increased consumption of cigarettes, it is not an essential element in the commencement or maintenance of the habit. Any material relating to "peer group pressure" experienced in the course of a veteran's war service, and to the ease with which service personnel could obtain cigarettes during such service would be relevant to the raising of a hypothesis that a disease connected with smoking was war-caused: Law v Repatriation Commission [1981] 147 CLR 635; Critch v Repatriation Commission (Merkel J, Federal Court of Australia, 8 October 1996, unreported).
The appellant contended, contrary to the Tribunal’s view, that the mere fact that a veteran's smoking habit commenced or resumed during war service is sufficient to raise a reasonable hypothesis that an injury contributed to by smoking was war-caused. Reliance was placed on the reasons of Justice Davies, when President of the Tribunal, in Repatriation Commission v Hughes [1990] 13 AAR 34 in which his Honour stated at 38:
... if a serviceman commences smoking during war service, then a hypothesis will readily arise that the development of the smoking habit was causally related to the war service. The connection will be pointed to by the facts of the particular serviceman's case. Proof as to precisely how and in what circumstances smoking commenced and was continued is not required. A reasonable hypothesis is sufficient.
That opinion is not authority that the mere fact that a veteran commences smoking during war service is enough to establish a causal relationship between the smoking habit and the war service. His Honour said in fact that any connection will be pointed to by the facts of the particular veteran's case. That is, the connection between the commencement of a veteran's smoking habit and war service must be raised by the material presented to the Tribunal. However, proof as to the precise manner in which the veteran commenced and continued to smoke is not required before a hypothesis based on that connection can be said to be raised.
Conclusions on second bronchial hypothesis
In the first instance, what the Act required for a successful claim was a reasonable hypothesis of connection between the circumstances of the claimant's war service and the disease now suffered. As the cases have repeatedly said, a balancing exercise is not to be undertaken as to whether the weight of evidence is in favour of the hypothesis. Whatever the decision-maker's opinion of the weight of the evidence, an otherwise reasonable hypothesis of causation established or pointed to by the evidentiary material does not cease to exist unless the whole of the material disproved the hypothesis or a fact or facts necessary to support it, or proved a fact or facts inconsistent with it, beyond reasonable doubt.
Although the determination whether a hypothesis of connection between war service and injury/disease is raised and is reasonable raise questions of fact, if those conclusions are the only conclusions available on the material, the failure to make such determinations involves an error of law. In the absence of findings that the material did not point to facts which, if true, would support the second hypothesis raised, it seems to me clear that facts were raised by the appellant that pointed to a nexus between his smoking habit and his war service. Hence there was, contrary to the view of the Tribunal, a reasonable hypothesis of that nexus.
Conclusions as to bronchial claim
For the reasons given, I consider it to be plain that the material raised two reasonable hypotheses connecting the appellant's chronic bronchitis with his operational service. Thereafter, unless the Tribunal was satisfied beyond reasonable doubt that there was no sufficient ground for so determining, it had to conclude that the disease was war-caused. In other words, as a matter of law, once the reasonable hypotheses were raised, the Tribunal was bound to find in favour of the appellant unless one or more facts necessary to support the hypotheses had been disproved beyond reasonable doubt, or the truth of one or more other facts inconsistent with the hypotheses had been proved beyond reasonable doubt. One way such a conclusion could have been reached was by a finding that an actual cause of the disease other than war service had been proved beyond reasonable doubt. No such facts were found, no such findings were made, and, in my view, none would have been justified by the evidentiary material.
It is thus clear that the Tribunal did not address the requirements of either subsection (3) or subsection (1) of the former section 120 in respect of either hypothesis. As no possibility exists that if remitted to the Tribunal anything other than the suggested hypotheses of connection could or should be found, and as no evidentiary material was placed before the Tribunal on which it would have been entitled to find that on the whole of the material the hypotheses were disproved, or any facts inconsistent with them were proved, beyond reasonable doubt, the claim must be determined in favour of the appellant. I would therefore order that this claim be allowed and returned to the Commission for calculation and payment of the claim.
Anxiety disorder
The hypothesis
The hypothesis put forward on behalf of the appellant by Dr Oleh Kay, a specialist psychiatrist, was that the appellant's chronic anxiety state had been precipitated and contributed to by distress and anxiety suffered as a result of his attendance as official bugler at a considerable number of funerals of soldiers killed in the Korean War. The material relating to the hypothesis was contained in the appellant's written and oral evidence before the Tribunal, and in the written and oral evidence of Dr Kay. Based upon the history recounted to him by the appellant on the four occasions he examined him, Dr Kay felt it reasonable to hypothesise that the appellant's longstanding personal problems and predisposition to anxiety may have been made symptomatic by his service in Japan becoming dormant thereafter until becoming symptomatic again in the 1970s.
The evidentiary material
In his evidence before the Tribunal, the appellant described the performance of his duties as bugler at army funerals in Japan:
The funeral took anything from three-quarters of an hour to an hour and I had to play the Last Post there and I couldn't - I was, of course, made to stand back a bit from where the service was going on to sound the Last Post and I couldn't hear what was going on and I often thought: well, there was some of these fellows that I knew from the battalion that I was in and bit by bit the news drifted through that there was five of the ex-band members were killed over in Korea. They didn't go there as a band, they went there as stretcher bearers, which none of us knew that we were stretcher bearers at the time; we were playing in the band, but that was the way it was on the battalion manning chart, which we never ever got to see. And we were the bandsmen but - any rate these guys got killed. I remember their names and all, but it was very stressful to me because I couldn't hear the service being 10 metres or 15 metres away from where the padre was conducting the service.
Well, can you just describe your feeling, your emotional feeling during those funerals?---Well, to me it was very stressing, you know, because there were so many of them, you know. (AB 355)
....
But what went through your mind as you were at those funerals?---Well, I used to wonder who they are, you know, did I know them, or did I ever meet them or, you know---
....
Of what effect do you think those funerals had on you subsequent to that?---Well, if I can say that it refers to flash backs, you know. You have this experience and it's a distressing experience and you can't get rid of it. I can remember as clear as day the duties that I performed then at the funerals, going to them and coming home, so many of them and I'll never forget them. You know, it's something that's burnt into your mind, you might say, you know, the incidents - too many of them. (AB 356)
At a later point in his examination in chief before the Tribunal, the appellant elaborated upon the current symptoms of his experiences in Japan:
And these things were always on my mind. You can't just forget these things over night. Even to this day I can dream about the camp or dream about the people that I was with, that I served with. I can dream about the guys that got killed, you know. (AB 366)
The appellant was asked in cross-examination what symptoms he suffered when he was participating in the military funerals, and whether he had difficulty sleeping. The transcription of his reply is in a rather confusing state (emphases added):
Well trouble sleeping but as I said before the funerals there - I mean 2 hours out, 1 hour while the funeral was on and then 2 hours back ride into town and before you got fed - well you got fed after all that. But I mean it was very stressing, you know. We didn't know when the next funeral was coming. I couldn't figure out, you know, why all this was happening, you know. I just couldn't console myself with so many deaths, you know. So many deaths. I don't know how many funerals that I was on there as a bugler, but quite a lot. I got photos at home of the plots that were increasing and increasing. The - the public relations guy that was sergeant at that particular time, he gave me one of those and one picture he took of me playing the bugle there. But, it was very stressing, because you get up in the morning, and you don't know whether you going out on the general's residence, you going to work in the quartermaster's store, or you will be taking furniture out to get it repaired and furniture be repaired and bring the repaired stuff back, or whether I'm going down on a funeral. When I come home at night, I didn't know whether I'd be back to that cemetery or not, you know. (AB 395)
This evidence made it clear that the appellant was describing stress and some sleeplessness as a result. Thus in his report of 16 December 1993 (AB 313, Exhibit A3) Dr Kay concluded that:
In my opinion, Mr Cooke is suffering from a generalised anxiety disorder which was initially precipitated by his experiences whilst serving in the military in Japan. His anxiety disorder initially had some of the features of a Post Traumatic Stress Disorder but of insufficient severity to qualify him for the diagnosis of Post Traumatic Stress Disorder. Mr Cooke's anxiety symptoms have followed a fluctuating course and more recently have been exacerbated by his retirement and return to Australia.
In oral evidence before the Tribunal, Dr Kay reiterated his conclusion that the appellant has an anxiety disorder:
Well, I think essentially this man's got an anxiety disorder that has fluctuated in severity but first became manifest during his service in Japan.
.....
My diagnosis is that he has a generalised anxiety disorder --- characterised largely with somatic symptoms. (AB 425, T 42)
Dr Kay explained the term 'generalised anxiety disorder':
A generalised anxiety disorder is a chronic condition that is due to a number of factors. Constitutional, I'm of the opinion that people are born with a pre-disposition to developing anxiety disorders but also environmental. And those environmental factors are generally stress or what people would narrowly call stress. They are situations where people are under threat, or they have gone through a particularly traumatic - emotionally traumatic experience and that a combination of constitutional and environment factors a generalised anxiety disorder becomes evident. And it's characterised essentially by symptoms of adrenaline, so that all the sorts of symptoms that people feel when they are frightened are evident but chronically so in a generalised anxiety disorder.
Asked his opinion of the likely causes of the appellant's anxiety disorder, Dr Kay responded (at AB 425, T 42):
Well, I think that there's very much a constitutional contribution but I am also of the opinion that his service in Japan contributed also to his anxiety disorder. (emphasis added)
In cross examination about the severity of the appellant's symptoms whilst in Japan (AB 429-33, T 46), Dr Kay found it difficult to pinpoint an exact date for the commencement of the appellant's anxiety disorder:
I didn't say that he was necessarily suffering from an anxiety disorder at the time he was attending the military funerals. What I said was that his experience in the military funerals I thought was a contributory factor in the development of his anxiety disorder.
....
What I'm saying is that it's very difficulty (sic) to say at exactly what point this man's anxiety disorder commenced. Whether he had some anxiety symptoms before and his experience of the military funerals exacerbated it, or whether it - the first symptoms of distress he had was the experience of military funerals and that his anxiety disorder then became more severe. (AB 429)
Dr Kay conceded that factors other than his war experiences would have contributed to the appellant's anxiety disorder:
All that I'm saying is that this man, in my opinion, suffers from an anxiety disorder. There'd be multiple factors that contributed to it and, in my opinion, one of the contributing factors was the experience he had in Korea (sic) (AB 430).
However, in the final analysis, he was of the opinion (emphasis added):
... that it's reasonable to argue that this man has an anxiety disorder that started about the time of his service in Japan and fluctuated in severity. (AB 432)
And he was (emphasis added):
... relatively confident that he has an anxiety disorder and that some of the factors that relate to his anxiety disorder are associated with his military service. (AB 433, T 50)
Dr Kay agreed with the Tribunal that the appellant had a number of other problems in his personal life (AB 436):
Yes, absolutely. I do not disagree with that at all. All I am saying is that I am confident to say that this man has an anxiety disorder and the history that he gives me is consistent with an anxiety disorder that commenced during his military services [sic] and that some of his experiences during his military service would have contributed to his anxiety disorder.
When it was put to Dr Kay that the anxiety disorder could have commenced at childhood, he agreed (AB 436):
Absolutely, and his military service exacerbated it.
At no point did Dr Kay resile from his opinion that the appellant's military service made a significant contribution to the anxiety disorder. His evidence was not challenged by the respondent. Dr Kay noted (AB 424) that the appellant:
had some difficulty explaining the feelings he had at that time considering that they happened 40 years ago. But he explained what one would expect of a degree of anguish and anxiety and apprehension to be involved in such duties.
He went on that an outsider must look behind the actual words used (AB 436):
Men will rarely describe that they feel anxious but they will then go on to say that they're worried about all sorts of physical problems.
That is, despite the appellant’s not actually having gone to a doctor to complain of sleep disturbance or other symptoms of anxiety, it was still Dr Kay's opinion that he was suffering a war-caused anxiety disorder.
The raised facts as to the anxiety disorder thus appear to be as follows:
The appellant had a predisposition to anxiety from an early age.
The appellant was engaged in operational service from 12 March 1946 to 20 April 1953, including service in Japan. His service included being a member of an army band and a bugler.
During his service in Japan the appellant played the bugle at many funerals of service personnel including of former bandsmen.
The appellant found the funerals distressing, sometimes because he knew some of the deceased people and sometimes because he was not aware of who the persons being buried were.
Over the intervening years the appellant has had flashbacks and dreaming of the funerals.
He has had a generalised anxiety disorder for many years. The fact that he has never suffered from sleeplessness or sought medical advice or other assistance for this condition does not disqualify or gainsay its existence.
Like many other men of his background, the appellant had difficulty explaining his feelings of 40 years ago. He had minimal education and at some stage may have abused alcohol so as to affect his memory.
Men in such circumstances will rarely describe feelings of anxiousness but will instead describe physical symptoms.
The appellant now has a chronic anxiety state.
There was no challenge to the appellant's evidence of flashbacks and dreaming, or to Dr Kay's evidence that the appellant's long standing personality problem and childhood predisposition to anxiety may have become symptomatic during his service in Japan and then gone into a twenty year remission before becoming symptomatic again on his return to Australia in 1974. Moreover, the facts relied upon by the Tribunal that the appellant did not seek medical attention at the time of the alleged distress and failed to complain of sleep disturbance and other signs at the time (which the Tribunal apparently took to mean or represent evidence that he had not suffered from these conditions), were not specifically put to Dr Kay as being necessary to manifest an anxiety state. Because it can be assumed that Dr Kay would have extracted and commented on these matters if they had occurred, the proper inference to be drawn is that the absence of such a history did not affect and would not have affected his diagnosis, his opinion of the stress suffered, or his conclusions about its causes.
In rendering duties as the lone bugler at the funerals of Australian service personnel killed in the Korean War, the appellant was confronted directly by the impact of such deaths, particularly as he had known some of the deceased as service colleagues. Therefore, a hypothesis that such events triggered an anxiety state in a man who was predisposed to anxiety does not seem obviously fanciful or tenuous, and there was no evidentiary material that such a hypothesis was contrary to known scientific facts.
The Tribunal's approach
The Tribunal accepted Dr Kay's evidence that the appellant suffers from an anxiety state:
21. The Tribunal accepts Dr Oleh Kay's evidence that the applicant does suffer from this disorder and that he has done so for many years. On the question of whether the disorder is war-caused however, Dr Oleh Kay's evidence is not so clear. In his opinion the applicant was probably predisposed to anxiety since early childhood and it is possible that incidents during his service in Japan may have caused the problem to become symptomatic. On the face of it the applicant does not seem to have had a very stressful war. He did not, for instance, have any active service nor was he close to any physical danger himself. He claims, however, that he felt stress over several months while stationed in Tokyo when he was regularly obliged to attend and play the bugle at military funerals for soldiers who had been killed in Korea. On some occasions he had to do this more than once a week and he claims that it caused him stress, especially as he claims that some former bandsmen, whom he had known, were amongst the dead.
The applicant's evidence on this aspect of his war service was not convincing and described nothing more than mild distress. He did not describe sleep disturbance nor other symptoms of anxiety nor did he report the problem nor seek any form of medical help. (AB 507-508)
The Tribunal found that the appellant was an "unsatisfactory witness" who was "prone to tailor his evidence to meet the needs of his case" in respect of his claim for anxiety disorder, but that the "applicant's evidence about the anxiety he suffered from the 1970’s onwards in Australia was of a very different character and was convincing". On those findings the Tribunal was not prepared to accept the appellant's chronic anxiety as war-caused. It found (AB 509):
..... that there is no sufficient evidentiary basis for a hypothesis that the applicant [appellant] suffered any form of anxiety disorder in Japan or that he was (or felt that he was) subjected to any great stress during his defence service.
The learned primary Judge agreed with the findings of the Tribunal, stating (AB 551):
Based on the finding that the applicant [appellant] was not a credible witness together with the lack of any evidence of any claims in relation to such anxiety, and the twenty year absence of any significant anxiety, the Tribunal did not accept the hypothesis advanced by Dr Kay as reasonable or reasonably based. Essentially, the Tribunal's view was that the hypothesis of Dr Kay was untenable because the history furnished to him and which he accepted should not be accepted. It was true that there was some evidence of distress as the result of performing duties as a bugler at funerals of soldiers. There was no credible evidence in the Tribunal's view to support the view that such distress was unduly severe.
Having regard to the foregoing matters, on the whole of the material it was open to the Tribunal to determine that the medical hypothesis put forward by Dr Kay should not be accepted as a reasonable hypothesis.
His Honour also regarded the lack of complaint of sleep disturbance or other symptoms of anxiety, and of the appellant's failure to seek medical assistance in that regard, as relevant to a finding that the hypothesis of connection between the incidents in Japan and the anxiety state was not raised by the whole of the material.
Conclusions on the anxiety state claim
I respectfully disagree. By concluding that the appellant's operational service did not contribute to his anxiety disorder -- because he did not “seem to have had” a particularly stressful war; because he was not close to any physical danger; and because he did not complain of or describe sleep disturbance or other symptoms of anxiety, report the problem or seek medical help -– it is my view that the Tribunal fell into legal error, for this conclusion misconceived the legal task it was required to perform. At the stage of its examination of the hypothesis for reasonableness, the Tribunal was not required to examine the evidentiary material and form an opinion as to the likely cause of the injury. It had first to determine whether the material did or did not raise facts capable of supporting or pointing to the hypothesis of connection between the appellant’s war service and his anxiety state. On its face, as I have sought to show, there can be little doubt that there were such facts placed before the Tribunal. Moreover, the hypothesis was not fanciful or untenable and was not contradicted by known scientific facts.
B. Chronic Anxiety
The hypothesis here was that the appellant's duties as bugler at a considerable number of funerals during his service in Japan contributed significantly to his present anxiety state. The funerals included those of many service personnel killed in the Korean War, some of whom were known to the appellant. There was no real cross-examination of Dr Kay. The respondent did not call any evidence contrary to that adduced by the appellant. There was no other psychological evidence. Once again, the Tribunal took the course of making a credibility finding against the appellant and on that basis proceeded to hold that there was no factual basis for Dr Kay's hypothesis. In my view this claim should be remitted to the Tribunal to consider whether a fact which was necessary to ground the hypothesis was disproved beyond reasonable doubt or that a fact inconsistent with that hypothesis had been proved beyond reasonable doubt.
C. Spondylosis
As Mr H.N.H. Christie (counsel for the appellant) conceded in argument, the hypothesis in relation to this claim was not quite so clear-cut as in respect of the first two claims. However, in my view, Dr Maguire's evidence raised a reasonable hypothesis on the following basis:
.there was a lifting incident in respect of a container of rifles in 1946, before the appellant's departure to Japan; and
.the appellant's military service in Japan as a bandsman involved a very considerable amount of marching, far more than each individual unit for whom the band was playing because they had to play for every unit. The soft tissue injury sustained on lifting the rifles into the truck could well have been aggravated by the subsequent marching.
Mr Hardcastle's opinion was based not on any examination of the patient but simply on his opinion that this condition was always congenital or appeared before the age of 14 or 15. The Tribunal, in my view, approached the conflicting hypotheses on an incorrect basis. In essence, the Tribunal said that Mr Hardcastle's opinion was based on the facts as it (the Tribunal) found them and was therefore to be preferred. The real question was whether Dr Maguire's reasonable hypothesis had been disproved. In that regard there was no challenge to the appellant's evidence concerning his marching duties. Nor did the Tribunal, in my view, establish sufficiently from Dr Maguire what facts he was relying upon for his hypothesis.
Reliance on a ground expressly abandoned before the learned primary judge
As Einfeld J explains, counsel for the appellant, in argument before the learned primary judge, specifically abandoned any reliance upon a causal link between the appellant's smoking habits and his army service. In my view, apart from the requirements referred to in Einfeld J's judgment, before such a ground can be reagitated at a subsequent level of appeal, there need also to be special circumstances. The express abandonment by counsel of a point or ground of appeal is, of course, a very serious matter. As a general rule, a party taking that course should not, in my opinion, be allowed to resile from that position. Special circumstances should be demonstrated which justify such a course. I expressed that opinion in Teoh v. Minister for Immigration, Local Government & Ethnic Affairs [1994] 121 ALR 436 at pp.457-458. In that case I thought that the special circumstances were that the interests of seven Australian children, who had not been represented, would be affected. In the present matter I would see the special circumstances as being the degree to which the Tribunal was manifestly in error in relation to this particular claim.
I would allow the appeal and set aside the decisions of the Tribunal and the primary judge. I would remit the appellant's claims in respect of his anxiety state and lumbar spondylosis to the Tribunal to be heard again, with or without further evidence. I would remit the appellant's claim in respect of his chronic bronchitis to the Repatriation Commission for calculation and payment of the appropriate pension. I would order the respondent to pay the appellant's costs of the hearing at first instance and of the appeal.
I certify that this and the preceding five
(5) pages are a true copy of the Reasons for
Judgment of Justice Carr.
Associate:
Date: 30 April 1997
Counsel for the Appellant: Mr H.N.H. Christie
Solicitors for the Appellant: Legal Aid Commission of Western
Australia
Counsel for the Respondent: Miss R.M. Henderson
Solicitors for the Respondent: Australian Government Solicitor
Date of Hearing: 22 March 1996
Date of Judgment: 30 April 1997
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