Critch, Audrey Lucy v Repatriation Commission
[1996] FCA 881
•8 Oct 1996
CATCHWORDS
REPATRIATION - War widows pension - Accepted link between smoking during active war service and coronary artery disease resulting in death - Consideration of cases relating to whether smoking or alcohol was war-caused - Whether temporal connection between active war service and smoking sufficient to raise a reasonable hypothesis connecting death with the circumstances of the particular service - Whether assumed fact must be one which is reasonably open to be inferred from, pointed to, raised by and therefore permitted by the material - Whether reasonable hypothesis raised by assumed or raised fact that veteran's smoking was attributable to stress and peer group pressure during active war service - Whether expert medical evidence on likelihood of stress in active war service of the veteran leading to smoking points to smoking being war-caused as an assumed or raised fact - Whether the Administrative Appeals Tribunal erred in law in not addressing the questions required to be addressed under the statute - Whether the Administrative Appeals Tribunal erred in law in applying an onus of proof on balance of probabilities or on some other unspecified standard of proof or satisfaction.
Veterans' Entitlements Act 1986 (Cth) ss.8(1), 13, 119, 120
Repatriation Commissioner v. Whetton (1991) 31 FCR 513
Bushell v. Repatriation Commission (1992) 175 CLR 408
East v. Repatriation Commission (1987) 16 FCR 517
Byrnes v. Repatriation Commission (1993) 177 CLR 564
Lowerson v. Repatriation Commission (1994) 50 FCR 252
Bell v. Repatriation Commission (1992) 26 ALD 545
Repatriation Commission v. Owens (High Court of Australia, unreported 5 August 1996)
Law v. Repatriation Commission (1980) 29 ALR 64
Stares v. Repatriation Commission (1995) 38 ALD 757 and on appeal (1996) 41 ALD 212
McMahon v. Repatriation Commission (Burchett J, unreported 21 July 1993 and on appeal to the Full Court (Wilcox, Einfeld & Hill JJ), unreported 24 February 1994)
Repatriation Commission v. Tuite (1993) 39 FCR 540
VG695/95 AUDREY LUCY CRITCH V. REPATRIATION COMMISSION
MERKEL J.
MELBOURNE
8 OCTOBER 1996
IN THE FEDERAL COURT OF AUSTRALIA
MELBOURNE DISTRICT REGISTRY
GENERAL DIVISION
NO. VG 695 OF 1995
On appeal from the Veterans' Appeal Division of the Administrative Appeals Tribunal constituted by Mr. J. Handley, Senior Member, Mr. J. Brassil and Miss A. Shanahan
B E T W E E N:
AUDREY LUCY CRITCH
Applicant
- and -
REPATRIATION COMMISSION
Respondent
Coram:Merkel J
Place:Melbourne
Date:8 October 1996
MINUTES OF ORDERS
The decision of the Administrative Appeals Tribunal is set aside.
The matter is remitted to the Administrative Appeals Tribunal to be determined in accordance with law.
The respondent is to pay the applicant's costs of and incidental to the appeal.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
MELBOURNE DISTRICT REGISTRY
GENERAL DIVISION
NO. VG 695 OF 1995
On appeal from the Veterans' Appeal Division of the Administrative Appeals Tribunal constituted by Mr. J. Handley, Senior Member, Mr. J. Brassil and Miss A. Shanahan
B E T W E E N:
AUDREY LUCY CRITCH
Applicant
- and -
REPATRIATION COMMISSION
Respondent
Coram:Merkel J
Place:Melbourne
Date:8 October 1996
REASONS FOR JUDGMENT
Introduction
The late George Albert Critch ("the veteran") served in the Australian Army between 10 March 1941 and 11 December 1945. He died as a result of coronary artery disease on 6 March 1973.
On 19 March 1992 the applicant lodged a claim, as a dependant of the veteran, for a pension under s.13 of the Veterans Entitlements Act 1986 (Cth) ("the Act") on the ground that the death of the veteran was "war-caused".
The claim was refused by a delegate of the Repatriation Commission ("the Commission") on 6 August 1992 and that decision was affirmed by the Veterans Review Board on 14 May 1993. The applicant applied for a review of the Board's decision by the Administrative Appeals Tribunal ("the AAT") which affirmed the decision.
The applicant lodged a Notice of Appeal to the Court against the decision of the AAT claiming that the AAT erred in law in arriving at its decision. The issue before the AAT was whether the death of the veteran was war-caused in accordance with s.8(1)(b) of the Act.
The applicant's case
The applicant alleged that the combination of stress and peer group pressure in the course of her late husband's operational service led him to commence smoking and acquire a smoking habit which caused or contributed to the coronary artery disease which resulted in his death in 1973. If these matters are accepted, the death arose out of and was attributable to the veteran's war service and was therefore "war-caused".
The AAT found that the veteran commenced smoking during his operational service. It was common ground that the smoking led to the coronary artery disease which caused his death. However, the AAT concluded that the temporal connection between the war and the commencement of smoking did not establish that the death was war-caused. Accordingly, it affirmed the decision of the Board refusing the applicant's claim.
The applicant's counsel submitted that the AAT erred in law in arriving at its conclusion.
The legislation
Section 8(1)(b) of the Act provides that the death of a veteran shall be taken to be war-caused if:
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
The claim of the applicant related to operational service rendered by the veteran. Accordingly, the provisions of s.120 applied -
120.(1) 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.
(2)......
(3) 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.
The case law
As was pointed out in Repatriation Commissioner v. Whetton (1991) 31 FCR 513 at 516 the opinion to which s.120(3) refers is an opinion that the material before the Commission does not raise a reasonable hypothesis connecting the injury, disease
or death with the circumstances of the particular service rendered by the person.
The expression "the material before [the Tribunal] does not raise a reasonable hypothesis" was considered in the joint judgment of Mason CJ, Deane and McHugh JJ in Bushell v. Repatriation Commission (1992) 175 CLR 408 at 414:
The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
Their Honours continued 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 connection 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 the informed opinion.
Again at 415, their Honours described the question raised by s.120(3) as "whether there is some "material" which calls for a determination under s.120(1). The joint judgment in Bushell emphasised at 413 that s.120(3) ensures "that a claim to which s.120 applied is not met unless there is some material which raises the relevant causal hypothesis." Their Honours quoted from the relevant Explanatory Memorandum, which included the statement:
A pension will not be payable in circumstances where the evidence does not provide some positive inference in favour of a connection between the injury, disease or death and the veteran's or member's particular service. The sub-clause [i.e. s.120(3)] will require the Commission to refuse the claim where, at the end of the Commission's consideration of the material before it, no reasonable hypothesis
that there is such a connection has been raised, and if raised, no such reasonable hypotheses remains.
In East v. Repatriation Commission (1987) 16 FCR 517 the Full Court said at 533:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
However, as was said by Mason CJ, Gaudron and McHugh JJ in Byrnes v. Repatriation Commission (1993) 177 CLR 564 at 569-70:
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.
and at 570:
In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable.
An assumed fact cannot arise in the abstract. Obviously it is a fact that is reasonably open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis. Using these criteria ensures that the assumed fact is "raised" by the material and can be relied upon as a relevant matter and therefore a "raised fact" in forming an opinion as to the reasonableness of the hypothesis: see Byrnes at 569-70.
In Lowerson v. Repatriation Commission (1994) 50 FCR 252 at 260, Einfeld and Beazley JJ discussed the problem involved in determining the "raised facts":
In finding "raised facts" the decision-maker is not to have regard to "conflicts in the material: the material must simply be capable of pointing to or permitting the inference, in a non-technical sense, of facts supporting a hypothesis which is reasonable if the facts are
assumed to be true. Thus, as the majority recognised in Bushell at 415, s.120(3):
"...is not concerned with the proof or satisfaction of a claim but with whether there is some "material" which calls for a determination under s.120(1)."
In other words, the subsection requires the decision-maker to assume the raised facts to be true for the purpose of determining whether the hypothesis is reasonable, in the sense that it is not"obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". East v. Repatriation Commission (supra) at 532. That is why the subsection does not speak of any standard of proof or satisfaction for the decision-maker to find that the raised facts exist.
and at 261:
Thus once the hypothesis is identified because it is supported by "facts pointed to by the material" and then found to be reasonable, the analysis moves to s.120(1) where a high degree of satisfaction is required that the raised facts do not exist if the hypotheses is to be discharged and the claim is to fail.
One of the problems to have arisen in the very difficult task of interpreting s.120 is the concept of "facts" which do or do not exist. It is at least confusing, if not more, to speak of a true or false (or untrue) "fact". What is really being referred to is evidentiary material, in an administrative law sense, which suggests a particular factual conclusion. It is this material which may be shown to be true or untrue in the exercise to be performed under subs (1); that is, to adapt the language of Byrnes, a piece of factual material needed to sustain the hypothesis may be disproved, or the truth of a necessary fact inconsistent with the hypothesis may be proved, beyond a reasonable doubt.
The joint judgment of Davies and Beaumont JJ in Bell v. Repatriation Commission (1992) 26 ALD 545 at 546 emphasised that whether the material before the Tribunal raised a reasonable hypothesis was a question of fact. At 547 their Honours cited the following proposition from Whetton:
What is required is "some degree of acceptability or credibility" to make the hypothesis "reasonable", and "some support in [the] material" before the tribunal, so that the hypothesis can be said to be "raise[d]" by that material.
In the transcript of the application for special leave to appeal from the decision of the Full Court, reported at (1995) 22 AAR 121, in Repatriation Commission v. Owens (High Court of Australia, unreported 5 August 1996) Brennan CJ and Gaudron and Gummow JJ said at 14:
The question whether, for the purposes of section 120(3) of the Veterans' Entitlements Act 1986, material raises a reasonable hypothesis is a question of fact for it involves no more than a determination whether an hypothesis of connection is reasonable.
......
A majority of the Full Court allowed an appeal from Mr. Justice Lockhart but their Honours seemed to have misunderstood the nature of the issue arising under section 120(3). It is not whether any hypothesis or connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal.
Once the "raised facts" in the material raise a reasonable hypothesis, so that the Commission or Tribunal is unable to form the opinion referred to in s.120(3), the joint judgment in Bushell makes it clear at 416 that the question is whether under s.120(1) the Commission or Tribunal "is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis", that is to say, "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".
Cases relating to smoking and alcohol
The application of these principles has given rise to particular difficulty in cases relating to injury, disease or death caused or contributed to by a habit of smoking or alcoholic consumption. A difficulty has arisen in establishing the requisite connection between commencement of the habit and the particular war service of the veteran.
These cases do not raise any new or different principle. Rather, their outcome turns on the sufficiency of the material relied upon to establish the requisite connection.
In Law v. Repatriation Commission (1980) 29 ALR 64, Toohey J considered the significance of a temporal connection between smoking which contributed to carcinoma of the lung and war service. Apart from the temporal connection there was no direct evidence as to the circumstances which led the veteran to take up smoking during his war service. However, there was evidence about prison camp conditions which led a distinguished medical practitioner who had experienced those conditions to conclude that there were "ample grounds" to think that the veteran's death could have been due to or accelerated by smoking during his war service. Toohey J said at 75:
It is enough to say that when regard is had to the fact that Mr. Law died from carcinoma of the lung caused by smoking (and smoking over a number of years, according to Sir Edward Dunlop), that he took up smoking during war service and that he was a prisoner of war in poor conditions suffering from a number of maladies, a situation generally conducive to smoking, there was no clear and cogent evidence to justify a conclusion that there was no casual connection between war service and death.
On appeal at (1980) 31 ALR 140 at 154 that finding was accepted by the Full Court to be a "real" possibility: see also the further appeal to the High Court (1981) 36 ALR 411 at 413-414 and 420. In Law's case the issue under the Act at that time was whether the Tribunal could be satisfied beyond reasonable doubt that the death was not war-caused rather than whether a causal relationship existed. However, it was accepted that an inference that smoking was war-caused may be drawn in reliance upon expert medical evidence as to the likelihood of that having occurred in the course of the particular service of the veteran.
A similar approach was taken with respect to alcoholism under the present Act in Stares v. Repatriation Commission (1995) 38 ALD 757 and on appeal to the Full Court (Black CJ, Ryan and Einfeld JJ) (1996) 41 ALD 212. In Stares the evidence was that the deceased veteran appeared to commence drinking alcohol during his war service. Evidence was given by a medical expert, Dr. Sime, of the probability of stress caused by combat contributing to the formation of and persistence in the habit. The Tribunal was of the opinion that the material before it did not raise a reasonable hypothesis connecting the veteran's death with his war service. At first instance Jenkinson J remitted the matter on that issue on the ground that the Tribunal erred in law in requiring evidence to establish the "facts" pointing to the hypothesis. His Honour said that the Tribunal failed to recognise that in some cases the hypothesis may assume the occurrence or existence of a "fact": see Byrnes' case at 570. In dismissing the appeal the Full Court said at 217-218.
The question s.120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran's injury with war service: see Byrnes' case at 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.
In the present case the learned primary Judge did not hold that a reasonable hypothesis for the purposes of s.120(3) may be raised by an assumed fact in isolation. The assumed fact was to be considered by the decision-maker in the light of all the other material. Much of that other material bore directly upon the hypothesis. It was, for example, common ground on the appeal that the material before the Tribunal pointed to the fact that Mr. Stares did not consume alcohol before his war service, that his war service exposed him to stressful events and that Mr. Stares consumed alcohol in or about 1946 after his return from war service in that year. It was common ground too that the level of Mr. Stares' consumption of alcohol after 1976 (when he married Mrs. Stares) was of the order of one or two dozen bottles
of beer a week and that he drank quantities of port as well. There was also material before the Tribunal in the form of the opinion of Dr. Sime that there was a likelihood "unless there are other facts which become apparent which could link with it, that the setting of a bren gun mortar soldier seems the most likely background to stress drinking which carried on afterwards". In cross-examination Dr. Sime referred to the absence of other known stress factors; in response to questions about Mr. Stares' history of drinking he said: "All I can say is that this man had a serious alcoholic habit which appears to have gone back probably to his military service, the only major stress that I can identify.
......
It was of course implicit in the evidence of Dr. Sime that, as a matter of medical knowledge, operational military service with the infantry in time of war was capable of causing stress-related alcohol consumption such as to set off serious drinking problems in later life. This does not appear to have been challenged by the respondent, as a general proposition, before the Tribunal.
Similar issues arise in the present case. The important issue in such cases is whether the assumed fact, being that stress and peer group pressure in the veteran's particular service led to his smoking, is raised by the material rather than in the abstract. If it is "raised" by the material, for the reasons set out earlier, it can be relied upon in the manner discussed in Byrnes and Lowerson and applied in Stares.
Of course, it may be that it is the assumed fact which makes the hypothesis reasonable. However, no anomaly arises if the criteria set out above are applied. When that occurs the facts which may properly be assumed will be those "raised" by the material which point to the hypothesis said to be reasonable.
Counsel for the Commission submitted that the decisions in McMahon v. Repatriation Commission (Burchett J, unreported 21 July 1993 and on appeal the Full Court (Wilcox, Einfeld & Hill JJ), unreported 24 February 1994) were inconsistent with Stares and that I should follow and apply the decisions in
McMahon in preference to Stares. In McMahon there was no evidence that the deceased acquired a drinking habit during his army service or that the drinking habit he acquired later was caused by the stress undoubtedly occasioned by his war service. In my view there is no inconsistency between McMahon and Stares. In McMahon the veteran's widow failed in her claim due to the absence of both a temporal and a causal connection. In those circumstances an assumption that the stress of war service led to alcoholism would have been made in the abstract as nothing in the material raised the assumed fact connecting alcoholic consumption with the particular war service of the deceased veteran.
Reference should also be made to Repatriation Commission v. Tuite (1993) 39 FCR 540 at 545 in which it was accepted that the circumstances and incidents of army camp life can be a contributing cause to taking up smoking and that is a consequence of war service. Peer group pressure as part of that army camp life can fall into the same category.
The issue for determination
Accordingly, the issue arising for determination is whether it was open to the Tribunal, on the material before it, to form the opinion that the material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of his particular service. Section 120(3) required the Tribunal to give consideration to the whole of the material before it in forming that opinion. The AAT was concerned with whether a reasonable hypothesis of the requisite kind is raised, not by some part of the material taken alone, but by the whole of the material before the Tribunal. The AAT was not concerned with the making of choices between competing hypotheses nor was it to be concerned with an onus of proof on the balance of probabilities or on some other unspecified standard.
The material before the AAT
The AAT was of the opinion that the material before it did not raise a reasonable hypothesis connecting the death of the veteran with the circumstances of his war service.
The material pointed to or raised and therefore permitted the following matters to be considered as giving rise to the hypothesis said to be reasonable -
(a)the veteran's service was "right in the fighting" during the war in New Guinea, Crete and Palestine;
(b)the veteran suffered a bullet or gunshot wound to his left calf during his war service;
(c)the veteran refused to speak about his war service except on one occasion when he told his son that his service was "nothing to be proud of";
(d)there were no undue pressures in the veteran's post war history which would have been likely to influence or accelerate his smoking habit;
(e)the expert opinion of Dr. David Sime a "Consultant Psychiatrist" in relation to the veteran was that:
it certainly seems likely in relation to his operational service he would have been under stress and this would have accelerated the tendency to smoke.
Dr. Sime also referred to "strong peer group pressure in the army" as another factor giving rise to a tendency to smoke during the veteran's service. Dr. Sime after reviewing the veteran's history concluded:
Thus in his post war situation there were no undue pressures influencing his smoking habit and it seems to be a reasonable hypothesis here that his smoking started during his military service.
I would be in favour of the hypothesis that the military service has influenced and accelerated his smoking.
I would certainly favour this argument rather than the Board's hypothesis that there is no connection between his smoking and his military experiences.
Dr. Sime's expert report was tendered without objection and no cross-examination in respect of it was requested. Accordingly he was not called to give viva voce evidence.
(f)the expert opinion of Professor K.A. Myers, head of the Department of Vascular Surgery, Monash Medical Centre and Clinical Associate Professor of Surgery, Monash University was also to the effect that the veteran commenced smoking during the period of his war service:
"largely due to peer pressure and stress, together with the ready availability of cigarettes and that this then caused the persistence of a life-long habit".
As with Dr. Sime, Professor Myers' expert report was tendered without objection and no cross-examination in respect of it was requested. Accordingly, Professor Myers was not called to give evidence.
(g)the veteran commenced his "smoking habit" during operational service and the habit continued until his death at the age of 50;
(h)the smoking habit of the veteran led or contributed to coronary artery disease which caused his death.
It is likely that as a consequence of the passage of time and the veteran's refusal to discuss his war service during his lifetime, no evidence was adduced to establish that stress or peer group pressure in fact contributed to or caused the veteran's smoking habit. Section 119(1)(h)(i) ensures that no adverse inference is drawn as a result of the failure to call evidence on that issue. Indeed, the sub-section states that difficulties in that regard, which are attributable to the passage of time, "shall" be taken into account.
The reasonable hypothesis said by the applicant to be raised by the material was that stress and peer group pressure in the course of the veteran's operational service contributed to or caused his decision to commence smoking and acquire the smoking habit which led to the coronary artery disease which resulted in his death.
Although there was no material establishing that stress or army peer group pressure in fact contributed to or caused the veteran's decision to commence smoking the material was not altogether silent on that issue. Both Dr. Sime and Professor Myers' offered unchallenged opinions as experts that the stress and peer group pressure inherent in army operational service of the kind undertaken by the veteran was likely to
have caused or contributed to the commencement of his smoking during his service.
The AAT's decision
The AAT stated that:
The only issue to be determined at the hearing therefore was whether the death of the veteran arose out of or was attributable to any eligible war-service pursuant to s.8(1) of the Veterans' Entitlement Act 1986) ("the Act").
Although the AAT was satisfied of a temporal connection it stated:
It does not follow however that the smoking habit and its subsequent addiction "arose out of or was attributable to" service (s.8). To satisfy that criteria, and therefore dismiss any temporal connection, something needs to be known about the service. This is where the applicant's case fails.
The AAT accepted that the veteran "was right in the fighting" in New Guinea, Crete and Palestine and suffered a bullet or gunshot wound but then stated:
The absence, however, of any evidence of the particular service of the deceased does not permit us to conclude that the commencement of the habit of cigarette smoking, thereby precipitating the cause of death, arose out of, or was attributable to, any eligible war service (s.8(1)(b)).
In my view the material pointed to or raised certain matters in relation to the "particular service" of the veteran. The service involved "fighting" in several locations and resultant injury. Both experiences were inherently likely to involve stress. Peer group pressure in the army was also likely to influence a decision to commence smoking. Dr. Sime and Professor Myers gave unchallenged evidence to that effect. The AAT stated that it was not satisfied that the veteran suffered stress or was subjected to peer group pressure which led to smoking. The AAT's approach suggests that it placed an onus on the applicant to establish her case in terms of s.8(1)(b) by evidence on the balance of probabilities or on some other unspecified standard rather than in accordance with the mandated requirements set out in s.120(1) and (3) as explained in the cases to which I have referred.
This approach appears in the AAT's conclusion:
In the present matter, however, we are unable to say, because of the limited evidence available, that the service was a contributing cause nor are we able to say that the service was consequentially related to the deceased taking up cigarette smoking. Likewise, the comments of Dr. Myers and Dr. Sime amount to speculation and the acceptance of facts not known or proved. The comments are so inconsequential and have no weight that they barely deserve comment other than to say that they have been considered and dismissed.
We are also invited by Mr. De Marchi, on behalf of the widow, to have regard to s.119 of the Act. The latitude available to the respondent is similar to the latitude available to this Tribunal in that we are not bound by the rules of evidence nor to act in any formal legislative manner. We are required, however, to act according to substantial justice and to the substantial merits of the case.
With respect to Mrs. Critch, the absence of evidence sufficient to connect smoking with service prohibits us from finding that the application does have any substantial merit.
The decision under review must therefore be affirmed. (Emphasis added).
Although the AAT was correct in identifying the issue arising under s.8(1)(b) there is nothing in its reasons for decision that suggests that the AAT has approached its task in the manner mandated by s.120(1) and (3) of the Act. The express reference to the terms of s.8(1)(b) and the references in the passage which I have emphasised, particularly to the lack of "evidence", stand in contrast to the failure of the AAT to expressly or impliedly refer to s.120(1) and (3) or the terms of those sub-sections in the course of its decision. Whilst it may be accepted that the reasons of the AAT "are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be
gleaned from the way in which the reasons are expressed": see Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481 at 490-1, the failure to refer expressly or impliedly to s.120(1) or (3) strongly suggests a failure to address the issues arising for decision in the manner required by those sub-sections.
The issue before the AAT related to whether the material raised facts which pointed to a reasonable hypothesis connecting the death of the veteran with his war service. The "raised facts" need only be pointed to or raised by the material in accordance with the principles identified earlier in these reasons. They may include assumed facts. The AAT appeared to have not regarded it as open to it to assume or even infer facts. It disregarded the totality of the evidence of Dr. Sime and Professor Myers on the basis that it was mere conjecture. The AAT misconceived its function. The material included the unchallenged statements by two medical experts which provided an important basis for assuming and possibly inferring that stress and peer group pressure of the kind inherent or likely to arise in the course of the veteran's particular service led to his smoking. There was nothing inherently improbable or unlikely about that evidence. The material pointed to the conclusion arrived at by the two experts in accordance with the principles I have discussed. The AAT was required to treat that unchallenged evidence as part of the material before it and to which it must have
regard. It was in error in treating it as mere conjecture and therefore disregarding it.
The combination of these factors has led me to conclude that the AAT failed to discharge its duty under s.120(1) and (3) to address the question mandated by those sections namely:
whether the material before the AAT does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of his particular service?
Rather, it appears that the AAT asked itself:
Whether it has been established on the evidence before it that the death of the veteran arose out of or was attributable to his war service?
In failing to address the question mandated under s.120(1) and (3) in accordance with the principles established in the cases the AAT erred in law.
In Lowerson at 269 Einfeld and Beazley JJ said:
As a result of its error in applying s.120(3), the second Tribunal clearly set a much higher threshold for the raising and testing of the hypotheses arising from the material than is contemplated by the subsection. 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. What the Tribunal did here, in putting the facts supporting the hypotheses in question to an unspecified standard of proof or satisfaction under subs (3), was thus to circumvent the legislative intention.
In my view the same error of law was also made by the AAT in the present case. The AAT appeared to require direct evidence of causation rather than inquire whether the material "points to" the facts relevant to the causation issue. As was stated in Byrnes at 569-70 that means:
"no more than the material before the Commission must raise some fact or facts which give rise to the hypothesis".
The appeal is allowed and the order of the Court is that the decision of the AAT is set aside. The matter is to be remitted
to the AAT for its determination in accordance with law. The parties are to be at liberty to adduce further evidence and make further submissions to the AAT. As the applicant has succeeded on her appeal the respondent is to pay the applicant's costs of and incidental to the appeal.
I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel
Associate:
Dated:
Heard:17 September 1996
Place:Melbourne
Judgment:8 October 1996
Appearances: Mr. D. De Marchi of the firm of De Marchi & Associates appeared for the applicant.
Ms. R. Henderson instructed by the Australian Government Solicitor appeared on behalf of the respondent.
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