Deledio v Repatriation Commission

[1997] FCA 1047

FEDERAL COURT OF AUSTRALIA

DEFENCE AND WAR - operational service by veteran - death by prostate cancer - benefits claim by widow - hypothesis as to causation by fatty dietary habits acquired during Army service - 1994 amendments to Veterans’ Entitlements Act 1986 (Cth) - whether onus of proof on claimant.

Veterans’ Entitlements Act 1986 (Cth) ss 120 (1) and (3), 120A, 120B, 196B(1) and (2)

East v Repatriation Commission (1987) 16 FCR 517 at 518-527.
Repatriation Commission v O'Brien (1985) 155 CLR 422
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564.
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Webb (1987) 76 ALR 131
Frye v United States 293 F 1013 (1923).
Daubert v Merrell Dow Pharmaceuticals Inc 113 SCt 2786 (1993);

VG300 of 1997

ENA MAVIS DELEDIO v REPATRIATION COMMISSION

HEEREY J
10 OCTOBER 1997
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG300  of   1997

BETWEEN:	ENA MAVIS DELEDIO APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:		HEEREY J
DATE OF ORDER:		10 OCTOBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is allowed.

1. The decision of the Administrative Appeals Tribunal given on 26 May 1997 be set            aside.

1. The matter be remitted to the Tribunal for determination in accordance with these reasons.

1. The respondent pay the costs of the applicant, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG300 of 1997

BETWEEN:	ENA MAVIS DELEDIO APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	HEEREY J
DATE:	10 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

CONTENTS

1. INTRODUCTION  2

2. REPATRIATION LEGISLATION AND LITIGATION 1920-1994         2
              1. Early legislation  4
              2. Proof beyond reasonable doubt: O’Brien’s case  5         
              3. The reasonable hypothesis  6
              4. The reasonable hypothesis in operation: Bushell and Byrnes  8
   5. The 1994 Amendments: the Repatriation Medical Authority               11
                   and Statements of Principle

1. EVIDENCE BEFORE THE TRIBUNAL  16

2. THE STATEMENT OF PRINCIPLES  17

3. THE TRIBUNAL’S DECISION  18

4. HOW DOES A STATEMENT OF PRINCIPLES WORK?  20

5. APPLICATION OF THE SoP IN THE PRESENT CASE  24

6. ORDERS  24

I.  INTRODUCTION
The applicant is the widow of Ronald George Deledio (the veteran) who died on 6 May 1994. A cause of the veteran's death was metastatic carcinoma of the prostate. The veteran served in the Australian Army during the Second World War. The applicant claims that the veteran's death was war-caused within the meaning of s 8 of the Veterans' Entitlements Act 1986 (Cth) (the 1986 Act). The applicant contends that the veteran's death was a consequence of a high fat diet which he commenced during his military service and continued for the rest of his life. The applicant appeals to this Court from a decision of the Administrative Appeals Tribunal (the Tribunal) on 26 May 1997 which affirmed decisions of the Veterans' Review Board and the respondent Commission rejecting the claim.

This case raises important questions of principle as to the proper construction of the amendments to the 1986 Act made in 1994 by the Veterans’ Affairs  (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) (the 1994 amendments). The 1994 amendments have to be seen in the context of the history of legislation dealing with veterans’ entitlements and litigation arising therefrom.

II. REPATRIATION LEGISLATION AND LITIGATION 1920-1994
Historically Australian engagement in war has been mainly by volunteers who have left Australia to fight overseas.  While accepted as a regrettable fact of life in many countries, conscription for service abroad has always been a deeply controversial issue in Australia.

Australian repatriation legislation has long contained provisions for the resolution of disputed claims unusually favourably to claimants, as compared with claims for other Government benefits.  These procedural advantages are only understandable as a national acceptance that volunteering to put life and health at risk for the nation demands special recognition when that risk eventuates.  Amongst other things, legislation introduced in the 1970s required a reverse criminal burden of proof; the claim had to be disproved by the relevant authority and, not only that, disproved beyond reasonable doubt.  In the criminal law, proof of guilt beyond reasonable doubt is also required.  Necessarily this means that some defendants who are in truth guilty will be acquitted.  But society accepts this as a price to be paid to minimise the risk of a  greater evil, the conviction of an innocent person.  In the same way, an Australian volunteer being wrongly denied a benefit is seen as so unjust that, to avoid it, society will accept a system which results sometimes in payment of unjustified claims.

The foregoing is subject to some obvious qualifications.  Some conscripts saw service in New Guinea in the Second World War and in Vietnam.  However, the element of national gratitude helps to explain a consistent theme in Australian repatriation legislation, a linkage between the risks undergone in service and the ease of proof of claims; the more dangerous the service, the less difficult it is to prove a connection between that service and death, injury or disease so as to qualify for a benefit.

Thus the onus of proof differs from that faced by persons seeking Government benefits for sickness, unemployment etc, or claiming damages for personal injury.  It can be difficult enough to establish a causal connection when the relevant event occurred four or five years ago.  Witnesses disappear, records and other documents are lost, recollections fade.  Yet repatriation claims often concern events more than half a century in the past.  Who should bear the burden of such problems?  Should a Government say to the veteran (more likely than not a volunteer) or the veteran’s widow: “You prove it”? As will be seen, legislation up until the 1994 amendments gave a clear answer.  The onus was to disprove, beyond reasonable doubt, the factual basis of a claim, not to prove it.

If the 1994 amendments had the effect for which the respondent Commission contends in the present case, the onus of proof has now been put on claimants.  If that view is correct, it would be a philosophical change of a most fundamental kind.  In my opinion, as I hope to  demonstrate, Parliament had no such intention.  Rather, the amendments were directed towards a much more limited, albeit important, aspect of the repatriation benefits system, that is the use of medical/scientific evidence and the degree of professional acceptance such evidence ought to have before it is relied on by a decision-maker.

For the years to 1987, the following summary is largely based on the account contained in East v Repatriation Commission (1987) 16 FCR 517 at 518-527.

1. Early legislation
   Shortly after the end of the First World War Parliament enacted the Australian Soldiers' Repatriation Act 1920 (Cth). Section 23 of that Act imposed upon the Commonwealth a liability to pay appropriate pensions upon the death or incapacity of a member of the Forces "whose death or incapacity results or has resulted from any occurrence happening during the period he was a member of the Forces". The 1920 Act contained no express provisions as to either the standard or onus of proof. Claims were to be considered by a Repatriation Board with a right of appeal to the Repatriation Commission: s27. The Board was charged with the duty of “determining whether the death or incapacity ... in fact resulted from an occurrence happening during the period” of service: s 26(1)(a).

In 1929 amendments provided for new War Pensions Entitlement Appeal Tribunals and Assessment Appeal Tribunals to hear appeals from the Commission.  If the appellant made out a "prima facie case" of causation or aggravation by war service, the onus of proof that  it was not in fact so caused or aggravated was to lie with the Commission: s 45W(2).  A further amendment in 1935 (s 39B) required the Commission to give the appellant the benefit of any reasonable doubt in hearing appeals from the Board.

The burden of establishing a prima facie case of causation was lessened by amendments in 1943 to s 39B.  The Commission, a Board or an Appeal Tribunal was to give to the claimant, applicant or appellant the benefit of any doubt as to the existence of any fact or circumstance which would be favourable to him or her or as to any question whatsoever which arose for decision.  The new s 39B further provided that it should not be necessary for the claimant, applicant or appellant to furnish proof.  The Commission, Board or Appeal Tribunal was empowered to draw from all the circumstances of the case "all reasonable inferences in favour of the claimant, applicant or appellant, and in all cases whatsoever the onus of proof shall lie on the person or authority who contends that the claim, application or appeal should not be granted or allowed to the full extent claimed."

The Full Court observed in East (at 519) that this provision was "remarkably free of litigation" and that not a single case on the section went to the High Court in its thirty-four years of operation.

2.  Proof beyond reasonable doubt: O'Brien's case
In 1977 an amendment introduced into the legislation for the first time the concept of the criminal law burden of proof beyond reasonable doubt.  The new s 47(2) provided that a body dealing with claims, applications or appeals was to allow the same "unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal.”

In Repatriation Commission v Law (1981) 147 CLR 635 at 644 Aickin J, with whom Gibbs CJ, Stephen and Mason JJ agreed, pointed out that prior to the 1977 amendment the onus of proof which was placed on the Commission was not stated specifically but was clearly the ordinary civil one. The new standard was proof beyond reasonable doubt and although the expression "onus of proof" was not used, "the fact that the Tribunal was placed under a duty to grant a claim or allow an appeal unless so satisfied is enough to place the onus of proof to the specified standard on the Commission".

As the Full Court noted in East (at 521), the full ramifications of the differences between the old and the new s 47(2) became apparent in the later case of Repatriation Commission v O'Brien (1985) 155 CLR 422. A majority of the High Court held that it was not necessary for the material in a particular case to "provide some positive inference in favour of the requisite connection between death and incapacity and war service". In what was to prove an influential dissent, Brennan J pointed out that s 47 operated in an inquisitorial rather than adversarial context and assumed an investigation with reasonable diligence with all the facts ascertained being before the decision-maker. His Honour said (at 438):

"If the facts thus ascertained support a reasonable hypothesis that the claimant  is entitled to a benefit under the eligibility provisions of the Act, the Board or the Commission must determine to grant the claim.  If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt.  If the Board or Commission is satisfied that no reasonable hypothesis of entitlement is supported by the facts or that such reasonable hypothesis is dispelled beyond reasonable doubt, the Board or Commission should reject the claim.  Where, on the whole of the material no reasonable hypothesis of entitlement arises, there are 'insufficient grounds for granting the claim'."

1. The reasonable hypothesis
   The Government moved quickly to stem a flood of claims following upon O'Brien.  It saw the O'Brien decision as bringing "the determination of disability pension claims close to one of automatic acceptance for the vast majority of claims" (Minister's Second Reading Speech, Hansard 16 and 17 May 1985, at 2645). The legislative solution was explicitly based on the "reasonable hypothesis" concept advanced in the dissenting judgment of Brennan J in O'Brien. The amendments were introduced by s 16 of the Repatriation Legislation Amendment Act 1985 (Cth) and substantially re-enacted in the following year in the 1986 Act. Section 120 of the 1986 Act provides:

"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)  Where a claim under Part IV:

(a)    in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or

(b)     in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;

the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

(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.

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

(5)  Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

(a)   an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b)   a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c)     the death of a person is war-caused or defence-caused; or

(d)    a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6)  Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a )    a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b)     the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

(7)  In this section:

...

(b)    a reference to hazardous service shall be read as a reference to service in the Defence Force of a kind determined by the Minister for Defence, by instrument in writing, to be hazardous service for the purposes of this section."

“Operational service” is defined by s 6 in extensive and complex terms.  It would be fair to say however that the underlying theme is service in wartime outside Australia or in those parts of Australia directly subject to enemy attack.

“Peacekeeping Force” is defined in s 68(1) and Sch 3 to include service in various designated United Nations Peacekeeping missions and also forces designated by the Minister.

1. The reasonable hypothesis in operation: Bushell and Byrnes
   The 1985 amendments were considered by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. It is convenient to note first that the latter case laid down clearly the methodology to be applied. Mason CJ, Gaudron and McHugh JJ said (at 571):

"The position may be summarized 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 not reasonable, the claim fails.  Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-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 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." (Emphasis added)

In the earlier case of Bushell, Mason CJ, Deane and McHugh JJ expounded the concept of reasonable hypothesis, particularly in relation to questions of expert medical evidence.  Their Honours said (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. 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. Thus, in Commissioner for Government Transport v Adamcik (1961) 106 C.L.R. 292, this Court held that there was reasonable evidence to support a claim for damages that emotional disturbance, brought on by an accident, had caused acute lymphatic leukaemia even though only one doctor supported the claim, others rejected it, and there was evidence that for nearly twenty years the medical literature had discarded earlier suggestions that some cases of leukaemia had been the result of trauma. Windeyer J said (ibid., at p 306):

'The most that could be urged against Dr Haines' evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others: not that it can be scientifically established as false.'

However, a hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or to the known phenomena of nature' (ibid., at p 306).  Nor can it be reasonable if it is 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous' (East v Repatriation Commission (1987) 16 FCR 517, at p 532).

But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. 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)

That a hypothesis could be reasonable for the purposes of s 120(3) even though the medical evidence in support of it was idiosyncratic is confirmed by further reference to Adamcik, which the majority in Bushell considered to be directly analogous in issues arising under s 120(3). In reviewing the evidence of the plaintiff's witness in that case, Windeyer J said (106 CLR at 305):

"Asked to justify his opinion, he propounded a theory that he said was based upon his own consideration of the topic.  Briefly stated, his view is that emotional disturbances, operating in conjunction with other things, can be a factor in producing leukaemia, and he said all forms of cancer.  Under cross-examination he went still further and, without qualification or restraint, asserted as his opinion that mental states and emotional disturbances are the cause of all, or nearly all, diseases except those of infective origin.  He agreed that this was not an accepted view, and indeed that it had, as yet, no positive adherents other than himself: but he said that medical science was coming steadily more and more to this idea and that he expected that it would in time receive general recognition.

...

He did make assertions that to many people must appear in a high degree improbable.  And the physicians called for the defendants did not accept his theory.  But, however far-fetched some of his statements may seem, however much this theory may be criticised as unproved, it would be a bold court that could say that he was not qualified to express an opinion on medical matters and that the jury should have been told that, as a matter of law, they must disregard his opinion."

In a concurring judgment in Bushell, Brennan J (at 428) expressly approved the statement of Beaumont J in Repatriation Commission v Webb (1987) 76 ALR 131 at 135:

"Thus the central question in the present case was to determine whether the hypothesis advanced by the respondent as to the cause of the disease was 'reasonable' or not.  It is hardly necessary to observe that the question whether an hypothesis is 'reasonable' is one thing; to determine whether, as a matter of professional opinion, that hypothesis represents the preferred view is a different matter: a number of opinions may be held by  a number of experts in the field; each view may be reasonably held notwithstanding that they may lead to different conclusions.  The point sought to be achieved by the introduction into s 120 of the notion of a 'reasonable' hypothesis is the distinction between a theory that is rationally based, on the one hand, and an opinion that is irrational, absurd or ridiculous, on the other.  It is possible, especially as here, where the aetiology of the disease is unknown, to have more than one reasonable hypothesis advanced which suggest different causes of the disease.  The exercise is not one of balancing or weighing the respective merits of a range of professional opinions.  Rather, it is a case of determining whether the particular theory has a rational foundation.”

Later Brennan J said (175 CLR at 430):

"The purpose of s 120(3) is to ensure that, though fashion in medical theories changes, veteran claimants who have had operational service should not be prejudiced so long as there is a reasonable hypothesis of connexion favouring entitlement to a pension. It would be an exceptional case in which it would be right for the AAT, forming its own view of competing medical theories, to hold an hypothesis of connexion favouring entitlement to be unreasonable, when the hypothesis is supported by 'a reasonable medical practitioner, speaking within the ambit of his expertise'."

(The concluding quotation in that passage is from the judgment of Davies J in Bushell in the Full Court of the Federal Court.)

1. The 1994 Amendments: the Repatriation Medical Authority and Statements of
   Principle

The Minister appointed a Committee chaired by Professor Peter Baume AO to report on the operation of the legislation.  In March 1994 the Committee presented its report “A Fair Go: Report on Compensation for Veterans and War Widows”.

In the summary of its recommendations the Committee asserted (at 13) that the present standard of proof in the legislation was:

"confusing and complex to apply, is subject to wide interpretation in the Courts, is excessively generous and offers potential for exploitation through 'doctor shopping'.”

The Committee also said at 13:

“Interpretation of the Bushell case is that the 'reasonable hypothesis' test is fulfilled so long as the theory or opinion of one medical practitioner eminent in the field supports a connection between the condition and war service."

(The comment might be made that the judgments in Bushell, read as a whole, do not suggest that the practitioner need be all that eminent.)

More specifically the Committee proposed (at 25):

"The current standard of proof in s 120(1) and (3) is replaced by a simple easy to apply 'reasonable satisfaction' test with a beneficial addition that if a decision maker is in balance and undecided, the benefit must be given to the veteran and the claim granted...

The intention of this amendment is to move away completely from the inappropriate and confusing reverse criminal standard with the reasonable hypothesis test.  The aim is to use a test which already is well tested but to make it more beneficial than usual."

However, the Government did not accept the Baume Committee’s recommendations.  In particular, it introduced amendments which retained the concepts of reasonable hypothesis and the reverse onus of proof to the criminal standard but with a new mechanism which regulated the reasonability of the medical and scientific components of a hypothesis.  The mechanism chosen was the "Statement of Principles" (SoP) which was to be determined by an expert medical body.  The Minister said (Hansard, 9 June 1994, at 1808):

"The bill will, in effect, define by reference to such statements of principles the concept of 'reasonable hypothesis', as it appears in subsection 120(3) of the Veterans' Entitlement Act.  The result will be that a medical hypothesis linking particular kinds of injury, disease or death with war service that does not have a sound medical-scientific base will no longer be sufficient to constitute a 'reasonable hypothesis'.  This will be a matter solely for the expert medical authority to determine.  I stress that the opinion of a single medical expert may still be sufficient to constitute a 'reasonable hypothesis', provided that such opinion has a sound medical-scientific base, as determined by the authority."

Later in his speech the Minister said (ibid at 1809):

"These changes maintain a beneficial repatriation system, including a 'reasonable hypothesis' standard, as modified as I have already outlined, for deciding compensation claims for death or disease relating to eligible was service.  There has not been a return to a civil standard of proof, as recommended by the Baume Committee, which would have had the potential to reduce the success rate of claims, which currently stands at above 70 per cent, to the pre-1977 rate of approximately 30 per cent.  The government acknowledges the special status of veterans.  It is hoped that these changes will be effective in overcoming the maverick and fringe claims that have interfered with the integrity of an extremely generous repatriation system, without having to return to a civil standard of proof for the determination of claims." (Emphasis added)

The 1994 amendments established the authority of which the Minister spoke, a body called the Repatriation Medical Authority (RMA). The Chairperson is to be a registered medical practitioner or a medical scientist, with at least ten years experience: s 196M.  One of the four other members must be a person having at least five years experience in the field of epidemiology: s 196L(3).  The functions of the RMA as provided in s 196B(1) and (2) are as follows:

"(2).         If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a)operational service rendered by veterans; or

(b)peacekeeping service rendered by members of Peacekeeping           Forces; or

(c)hazardous service rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)       the factors that must as a minimum exist; and
     (e)       which of those factors must be related to service rendered by a                    person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

(3).           If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:

(a)eligible war service (other than operational service) rendered by                 veterans; or

(b)       defence service (other than hazardous service) rendered by   members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(c)       the factors that must exist; and
     (d)       which of those factors must be related to service rendered by a                    person;

before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service."

The concept of “sound medical-scientific evidence” is defined in s 5AB(2) as follows:

"(2).         Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:

(a) the information:

(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or

(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and

(b) in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology."            

Section 196B(14) defines the concept “related to service” in terms consistent with the definitions of war-caused death (s 8) and war-caused injury or disease (s 9).  Section 196B(14) provides, relevantly for present purposes:

“(14)  A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a)...

(b)it arose out of, or was attributable to, that service; or

(c)...

(d)it was contributed to in a material degree by, or was            aggravated by, that service; or

(e) ...

(f)...

(g)...”

SoPs are disallowable instruments for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth): s 196D.

The application of an SoP to the claims determination process is governed by ss 120A and 120B, also introduced by the 1994 amendments.

Section 120A applies to claims made on or after 1 June 1994 which are either a claim under Part II relating to operational service or a claim under Part IV relating to peacekeeping service or hazardous service rendered by a member of the Forces. Section 120A(3) relevantly provides:

"(3).         For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)       a Statement of Principles determined under subsection 196B(2)                    ...;

(b)       ...

that upholds the hypothesis."

However, s 120A(4) provides that subs (3) is not to apply if the Authority has neither determined an SoP under s 196B(2), nor declared that it does not propose to make such an SoP, in respect of the kind of injury, disease or death in question.

Section 120B applies to claims under Part II that relate to eligible war service (other than operational service) and claims under Part IV that relate to defence service other than hazardous service. In this case the relevant part of s 120 affected is s 120(4). Section 120B(3) relevantly provides:

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

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

(b)       there is in force:

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

(ii)       ...

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

It will be seen that ss120A and 120B deal with two different streams, the defining characteristic being the danger of the service undergone by the veteran.

• Operational,  peacekeeping or hazardous service

  The reasonable hypothesis requirement applies: s 120(3). If there is an SoP it must "uphold the hypothesis": s 120A(3). The RMA must set out factors which must exist, and which of them must be related to service, “before it can be said that a reasonable hypothesis has been raised”: s 196B(2).

• Non-operational or defence service

  There has to be "reasonable satisfaction" by the Commission; the reasonable hypothesis concept is not applicable: 120(4). There is to be reasonable satisfaction only if the SoP upholds the connection on the balance of probabilities: s 120B(3). The RMA is to determine factors which must exist (and be related to the service) before it can be said “on the balance of probabilities” that the injury, cause or death is connected with the service: s 196B(3).

Thus the 1994 amendments have been carefully crafted to dovetail with the existing structure of the 1986 Act, which distinguishes, for the purposes of proof of claims, between service of differing degrees of danger.

III  EVIDENCE BEFORE THE TRIBUNAL

The applicant met the veteran in 1938 when he was living in Dunolly, in the Western District of Victoria.  He was then working as a workcutter.  They married on 7 December 1940 and continued to live in the area until the veteran enlisted on 7 April 1942.  They used to eat light salads in the summer and stews in the winter.  They could not afford beef or mutton.

The veteran served in the Pacific, including Milne Bay and Lae.  He returned briefly on leave in 1944 and was finally discharged on 7 January 1946.  The applicant’s evidence was summarised by the Tribunal as follows:

"After he was discharged he had developed a taste for fatty foods, and in particular he loved the thick fat from steak, lamb and pork and very rarely had a meal without fat being involved.  He liked eggs fried in bacon fat and bacon fat on his toast.

He used to go fishing and his catch was eaten with chips fried in animal fat.  He also ate ice-cream and butter in large quantities.  She said that he told her on many occasions how poor his army diet was.  While he was in New Guinea in particular he ate hard biscuits and bully beef which he described as dripping with fat.  He served in New Guinea for a total of about 2 years.

After his discharge from the army he returned to his earlier work as a woodcutter which he continued until he had a heart attack in 1974.  Notwithstanding that he continued to indulge excessively in fatty foods."

The applicant's evidence was corroborated by two of her sons.  One of them in particular, Wayne Deledio, had studied physical education and was aware of the risks of excessively fatty food.  He said he suggested to his father to cut down on his intake of fat, but without success.

Dr J R Sullivan, a haematologist/oncologist, gave evidence that while carcinoma of the prostate can be familial the principal cause is considered to be dietary.  In a report he stated:

"The dietary habits (the veteran) acquired in the Military over four years were established for a life time and set the pathogenic scene for his eventual death 28 years later."

Dr Sullivan referred to a study conducted by Dr Christine Davidson "The Davidson Nutrient Intake Study", May 1988, which compared the mean nutrient component intake for adult males in the Australian Army serving in Australia, the Pacific region and the Middle East compared with the civilian population from 1942 to 1946. However, the Tribunal noted that the report indicated that the mean content of fat and energy in the Pacific Operational Ration diet was not greater than the civilian diet.

IV  THE STATEMENT OF PRINCIPLES

The applicable SoP was that contained in instrument No 95 of 1995 dated 8 March 1995, as amended by instrument No 191 of 1996 dated 9 December 1996.  In its amended form the SoP relevantly provided:

"Statement of Principles
concerning

MALIGNANT NEOPLASM OF THE
PROSTATE
ICD CODE: 185

Veterans' Entitlements Act 1986
subsection 196B(2)

1.    Being of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of that service, are:

(a) being exposed to herbicides in Vietnam; or

(b) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or

(c)       inability to obtain appropriate clinical management for   malignant neoplasm of the prostate;

2.    Subject to clause 3 (below) the factors set out in paragraphs 1(a) to 1(c) must be related to any service rendered by a person;

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

(a)the person's malignant neoplasm of the prostate was contracted before a period, or part of a period, of service to which the factor is related; and

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

4.    [Contains definitions of “animal fat” “being exposed to herbicides in Vietnam”, “ICD code” and “malignant neoplasm of the prostate”]

V  THE TRIBUNAL’S DECISION

After referring to s 120A(3) and SoP No 95 of 1995 as amended, the Tribunal said:

"13. As was correctly contended by the respondent, for the claim to succeed at least one of the factors contained in any applicable SoP must be found to exist and be related to service, to the decision maker's reasonable satisfaction, meaning on the balance of probabilities.

14. Again as was correctly contended by the respondent, the effect of the provisions of section 120A(3) (see above), is that if the injury, disease or death is of a kind that is the subject of a SoP, then for any hypothesis to be reasonable, the SoP must 'uphold' that hypothesis."

The Tribunal then quoted submissions of the respondent including the following passage:

"If a particular factor is not found to exist, or is not found to be related to the veteran's service, on the balance of probabilities, then the SoP does not uphold the hypothesis and, according to sub-section 120A(3) of the Act, the hypothesis cannot be reasonable."

The Tribunal expressed the view that those submissions were a correct statement as to the operation of the law and noted that they were not challenged by counsel on behalf of the applicant.  I observe here that the passage just quoted is central to the question of law arising on this appeal.  Counsel for the Commission on the present appeal accepted, correctly, that it was nevertheless open for the applicant to challenge the correctness of the Tribunal’s finding of law on this issue.

Under the heading "Findings" the Tribunal referred to the Davidson study and continued (at para 35):

"Given these statistics, as broad as they are, I find that at no time during his service did the late veteran's level of animal fat consumption increase beyond an insignificant amount when compared with civilian rations at that time.  Although the evidence of Mrs Deledio was that prior to joining the Army her husband maintained a very plain diet, there is no evidence as to what the fat level of that diet tended to be.  But even if it were to be accepted that the level was low, the evidence in my view would not on the balance of probabilities, support a contention that while on service the veteran's consumption of animal fat increase significantly by comparison with his pre-service diet.

36. The position, therefore, is that upon his discharge from the Army in early 1946, the late veteran was a person whose consumption of animal fat had only marginally increased during the period of his service, but who on the evidence then pursued a diet that was extremely high in fat content, and that he continued to do so beyond the time of his heart attack in 1974.

37. While that was the evidence of Mrs Deledio and her two sons, the increased consumption of animal fat must not only satisfy the level of consumption set out in the relevant SoP, and the specified period of time, but it must be related to his service."

After discussing the evidence further, the Tribunal concluded that although it was prepared to find that the late veteran's post-service diet satisfied the consumption of fat criteria as set out in the relevant SoP, there was no causal  relationship between the post-service diet and the late veteran's service.

It is clear that, consistently with the view of the law it took, the Tribunal approached its task on the assumption that the onus was on the applicant to show that the veteran's diet while in the Army resulted in him partaking of a high fat diet for the rest of his life.

For the reasons I shall shortly mention, that approach was in my view based on an error of law.  If the hypothesis advanced by the applicant was consistent with the applicable SoP, in the sense that the hypothesis included a history of fat consumption by the veteran of the amount and over the period specified in the SoP, then the SoP had no further part to play in the case.  The remaining parts of the hypothesis, which concerned such matters as the veteran's diet while in the Army as compared with his previous diet and the effect the Army diet might have had on his eating habits in later life, were elements of the hypothesis whose reasonableness had to be assessed in accordance with the principles laid down in Bushell and Byrnes.  No question of proof or disproof arises at this stage: Byrnes, supra.  If the hypothesis was reasonable in the Bushell/Byrnes sense, then s 120(1) applied and the onus was on the Commission to disprove the hypothesis beyond reasonable doubt.

VI  HOW DOES A STATEMENT OF PRINCIPLES WORK?
As has been mentioned, and notwithstanding the trenchant criticism of the Baume Committee, the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and (3) as expounded by the High Court in Bushell and Byrnes.

In carrying out its functions under s 196B(2) and (3) the RMA is dealing with scientific fact, that is to say a rule or proposition of universal application which explains or predicts natural phenomena.  This is to be distinguished from fact in the legal sense, a specific event or circumstance existing at a given point in space and time.  Obviously enough, in determining an SoP the RMA is not concerned with the individual circumstances of a particular veteran.  The SoP operates in the discourse of hypothesis - a “tentative answer to a problem under study” (Hempel, Philosophy of Natural Science, 1966, p 17).

When the RMA is determining under s 196B(2)(e) or 3(d) which of the factors must be related to service rendered by a person, the inquiry involves a selection from among those factors already determined under subs (2)d or (3)c.  To take an example mentioned in argument, it may be that under s 196B(2) the RMA determined that a particular kind of disease can be related to occupational service where factors A, B and C exist.  However, factor A might be, for example, genetic predisposition of the individual whereas factors B and C might be exposure to certain physical conditions such as climate, diet etc.  In such a case, the SoP determination would indicate that factors A, B and C must as a minimum exist and that factors B and C must be related to service rendered by a person.

In the case of SoP No 95 of 1995 as amended, the RMA has determined that whichever of the factors in par 1(a), (b) or (c) is applicable (they are expressed as alternatives), that factor “must be related to the service”. In other words, in this particular case - in contrast to the hypothetical example given - it happens that there is a coincidence between the factors that must exist and the factors that must be related to the service. But the use of the imperative “must” has nothing to do with proof or disproof of facts (in the legal sense) relating to a particular veteran’s service; that exercise is governed by s 120(1), just as it was before the 1994 amendments.

Turning then to s 120A(3), the decision-maker can only find the hypothesis reasonable for the purposes of s 120(3) if the SoP “upholds the hypothesis”. As was discussed in argument, this means that the hypothesis has to be consistent with the SoP.

Because the present case did not involve any conflict of medical opinion (there was no medical evidence called by the Commission before the Tribunal) the focus of discussion tended to be diverted from the proper, and important, function of SoPs.

A striking feature of Bushell, and the more so when one looks at Adamcik on which Bushell relied, is the lack of reverence for accepted wisdom in medical circles.  That may have something to do with the fact that the generation of Australian lawyers now on the Bench practised in an era where a prominent genre of civil litigation was the damages claim arising out of accident or death on the roads or in the workplace.  Such experience is perhaps likely to inculcate an attitude of caution towards claims by medical experts to infallibility.  In contrast, American courts adopted a “general acceptance test” which laid down that, to be admissible, expert opinion evidence needed to conform to methods and principles which had received widespread acceptance in a particular field of  knowledge: Frye v United States 293 F 1013 (1923). More recently the United States Supreme Court has established an even stricter test, involving judicially-assessed reliability of scientific claims: Daubert v Merrell Dow Pharmaceuticals Inc 113 SCt 2786 (1993); see also Edmond and Mercer “Keeping ‘Junk’ History, Philosophy and Sociology of Science out of the Courtroom: Problems with the Reception of  Daubert v Merrell Dow Pharmaceuticals Inc” (1997) 20(1) UNSW Law Journal 48.

The concept of “sound medical-scientific evidence” introduced by the 1994 amendments is a standard not unlike the Frye test.  In this respect at least, the Parliament has accepted the Baume Committee’s criticism of  “doctor shopping”.  If an SoP applies to the particular kind of injury, disease or death in question, a hypothesis will no longer satisfy the test of reasonableness merely by having some expert evidence to support the medical-scientific aspects of the hypothesis.  To illustrate by a variation on the facts of the present case, let it be assumed that it could only be established that the veteran increased his animal fat consumption by 20 per cent to 50 gm/day for ten years.   Dr X, an appropriately qualified specialist, is called to say that in his opinion that level of consumption could be sufficient to cause malignant neoplasm of the prostate.  The Commission calls three of the country’s leading specialists who vehemently disagree.  They say that an increase by at least 40 per cent to at least 70 gm/day for at least twenty years is the minimum required before fat intake can play any part in the development of this cancer.  Under Bushell, the hypothesis is nevertheless reasonable.  Under the SoP regime it is not.  Indeed the issue would probably not arise.  Unless the hypothesis was consistent with a 40 per cent 70 gm/day twenty year intake there would be no point running the case.

But it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can “uphold” the hypothesis. In the words of the Minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to “provide the template within which the individual claims will be determined”. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.

Therefore when s 196B(2) says a factor “must... exist” and “must be related to service”, it is not interfering with the functions of s 120(3) and (1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied.  Do the facts raised by the claimant give rise to a reasonable hypothesis?  Proof of facts is not in issue at this point.  The hypothesis will not be reasonable if it is:

(i)                    contrary to proved or known scientific facts,

(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

(iv)one or more facts necessary to support it are disproved beyond     reasonable doubt; or

(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran’s intake in fact was of this order. But if the Commission were to deny this, then s 120(1) requires the Commission to prove beyond reasonable doubt that the veteran’s intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of s 120(1) and (3) in the face of the Baume Committee’s recommendations. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis.

VII  APPLICATION OF THE SoP IN THE PRESENT CASE
The hypothesis advanced was as follows:

(i)A cause of the veteran’s death was malignant neoplasm of the prostate (the disease);

(ii)The disease can be caused by animal fat consumption increasing by at least 40 per cent and to at least 70 gm/day for at least twenty years before the clinical onset of the disease;

(iii)The veteran consumed animal fat in the amount and over the period specified in (ii);

(iv)The veteran’s habit of eating fatty food started with his introduction to Army food which had a higher fat content than the food he was used to.

The hypothesis was consistent with (upheld by) the applicable SoP (see (ii)). The Commission’s case before the Tribunal did not suggest that the hypothesis was otherwise contrary to proved or known scientific facts or obviously fanciful, impossible, incredible etc. Therefore the applicant cleared the s 120(3) hurdle. The Tribunal was then required by s 120(1) to determine the veteran’s death was war-caused unless it was satisfied, beyond reasonable doubt, that (a) one or more of the facts (i), (iii) and (iv) was disproved or that (b) some other fact inconsistent with the hypothesis was proved.

The Tribunal did not adopt this approach.  Instead, it placed the burden of proof upon the applicant.  Moreover the Tribunal appears to have misunderstood the applicant’s case.  It was not to the point that the veteran’s Army diet was no more fatty than that of the civilian population at large.  Rather the question was whether it was disproved beyond reasonable doubt that there was a change for him, compared with his diet in civilian life, which resulted in the habits he adopted thereafter.

VIII ORDERS
The appeal will be allowed and the decision of the Tribunal given on 26 May 1997 set aside.  The matter will be remitted to the Tribunal for determination in accordance with these reasons. There will be an order that the respondent pay the applicant’s costs, including reserved costs.

I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:            10 October 1997

Counsel for the Applicant:	D F Hyde
Solicitor for the Applicant:	Campbell & Shaw
Counsel for the Respondent:	P J Hanks
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 September 1997
Date of Judgment:	10 October 1997