Doolette v Repatriation Commission
[1990] FCA 294
•01 JUNE 1990
Re: VALERIE FAY DOOLETTE
And: THE REPATRIATION COMMISSION
No. 58 of 1989
FED No. 294
Veterans' Entitlements Act (1986)
21 ALD 489
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)
CATCHWORDS
Veterans' Entitlements Act (1986) - War widow's pension - determination of the manner in which a death can be treated as "war caused" - relevant considerations - meaning of phrase "was attributable to" in para 8(1)(b) and the phrase "reasonable hypothesis" in sub.s 120(3)
HEARING
ADELAIDE
#DATE 1:6:1990
Counsel for the Appellant Mr. B. Lander QC with Mr. M. Frayne
Solicitors for the Appellant White Berman and Co.
Counsel for the Respondent Ms. C. Branson with Mr. J. Miller
Solicitors for the Respondent Australian Government Solicitor
ORDER
1. The Appeal be dismissed.
2. The decision of the Administrative Appeals Tribunal be affirmed.
3. No order as to costs of this Appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Max St. Clair Doolette died on 20 January 1985 at the age of 60. He had enlisted in the Royal Australian Air Force on 9 July 1942 and had served as a wireless operator in Bomber Command between 17 November 1943 and his return to Australia on 30 July 1945; he was discharged on 1 October 1945.
On 18 April 1985, the appellant, his widow, lodged a claim for a war widow's pension. The Repatriation Commission rejected that claim on 29 July 1985 on the ground that the deceased's death was not related to his service in the Armed Forces. On 12 February 1987 the Veterans' Review Board affirmed the decision of the Commission. Mrs. Doolette then sought from the Administrative Appeals Tribunal a review of the Commission's decision. On 20 March 1989 Deputy President Layton published her reasons affirming the decision of the Commission.
The appellant now appeals to this Court from the decision of the learned Deputy President. Although the claim was originally made pursuant to the provisions of the repealed Repatriation Act 1920 (Cth), the Veterans' Entitlements Act (1986) (Cth) (assented to 19 May 1986) now governs the outcome of these proceedings and it is to the provisions of that Act to which reference will be made.
Certain important facts relating to the medical history of Mr. Doolette were not contested and can be briefly stated.
In 1952 traces of sugar were found in his urine; there was no earlier history of diabetes. In 1954 he was diagnosed as suffering from diabetes mellitus type 2. Then in March 1973, he suffered diabetic retinopathy which is severe haemorrhaging to the retina of the eye. This resulted in total blindness. Finally, on 27 September 1980, he suffered a myocardial infarction with left ventricular failure. The medical opinions of the two endocrinologists, Drs Burnet and Phillips who gave evidence before the Tribunal was consistent - Mr. Doolette's diabetic condition would have been a significant contributing factor to the myocardial infarction. His heart disease progressively worsened and eventually death occurred five years or so later following a further myocardial infarction.
Before the Tribunal and in further and better particulars of her grounds of appeal, the appellant advanced three hypotheses, arguing that each was a reasonable hypothesis connecting her late husband's death with the circumstances of the particular operational service rendered by him during the war. They were:-
"(i) that the stress suffered by the veteran due to his particular war service caused diabetes which led to the myocardial infarction from which he died;
(ii) that the stress suffered by the veteran due to his particular war service caused obesity which in turn caused the diabetes which led to a myocardial infarction from which he died;
(iii)that the stress suffered by the veteran due to his particular war service aggravated the veteran's diabetes which brought about an accelaration of death due to myocardial infarction."
The appellant's claim therefore was that her late husband's death should properly be classified as a "war-caused" death within the meaning of the provisions of para 8(1)(b) of the Veterans' Entitlements Act ("the Act"):-
"8.(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if -
(a) ...
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran."
The expression "was attributable to" appeared in the section of Repatriation Act that was the precursor to s.120. Para 101 (1)(b) of the former Act provided:-
"101(1) Upon the incapacity or death -
(a) ...
(b) of any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service,
the Commonwealth shall... be liable to pay ..."
In Repatriation Commission v Law (1980) 31 ALR 140: (affirmed on appeal 147 C.L.R.652) the Full Court, after considering the meaning that had been applied to the same expression in other Acts of Parliament, said at p 151:
"It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s.101(1)(b), it is sufficient to show "attributability" if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made."
I see no reason to consider that the expression "was attributable to" appearing in the present legislation should be interpreted differently. In addition, the learned Deputy President pointed out, and I agree, that if death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war related condition, the proper conclusion would be that death was attributable to war service: (Re Blyth and Repatriation Commission (1982) 4 ALN N 147)
Para 7(1)(a) of the Act provides that a person is to be taken as having rendered eligible war service while he was rendering operational service, a term that is extensively defined in s.6. For the purposes of these reasons however, it is sufficient to say that there is no doubt about the deceased having engaged in operational service as it was accepted that as a member of Bomber Command, he "rendered... continuous full-time service... during " World War II. (para 6(1)(a) of the Act). In fact there was uncontroverted evidence that during his tour of duty, he flew in 33 bombing raids - the maximum number that any member of air crew was permitted to undertake.
Central to the consideration of this appeal was the determination of the learned Deputy President that none of the three hypotheses that I have set out above was reasonable within the context of s.120 of the Act. The relevant provisions of that section are:-
"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) (Not material as it deals with members of Peace Keeping Forces)
(3) In applying sub-section (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 sub-section (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 or proving any matter that is, or might be, relevant to the determination of the claim or application.
Certain provisions of s.119 of the Act are also relevant. They are:-
"(1) In considering, hearing or determining, and in making a decision in relation to -
(a) a claim or application;
(b) to (e) (not material)
the Commission -
(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to-
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by sub-section 68(1), was not reported to the appropriate authorities."
The conclusion of the Tribunal that no reasonable hypothesis existed that connected Mr. Doolette's death with his war service was a conclusion of fact, but this appeal, which is brought pursuant to the provisions of sub.s 44(1) of Administrative Appeals Tribunal Act 1975 (Cth), is limited to a question of law: (East v Repatriation Commission (1987) 16 FCR 517 at p 531). Even so, Mr. Lander Q.C., counsel for the appellant, argued that the Tribunal's determination should not stand. He claimed that an examination of the reasons of the learned Deputy President shows that she failed properly to direct herself on matters of law in accordance with principles laid down in the decisions of the Full Court of this Court in East v Repatriation Commission (supra) and Webb v Repatriation Commission (1988) 19 FCR 139.
Before considering the effect of those decisions, it is desirable first to refer to certain remarks of the learned Deputy President and, where appropriate, to Mr. Lander's criticisms of them. Thereafter, an evaluation can be made of those criticisms in light of the principles to be found in East's case, Webb's case and other cases.
With respect to the proposition that the deceased suffered stress as a result of his engagement in numerous bombing attacks, the learned Deputy President said in paragraph 7 of her determination:-
"I have no hesitation in accepting that during the period of service in which the veteran was involved in such attacks (namely, from November 1943 until 29 July 1945), he was subjected to considerable stress."
After recounting the diagnosis of diabetes in the early 1950's, the onset of blindness and the two heart attacks, she then said at paragraph 21 of the determination:-
"It is accepted by the medical practitioners and was not a matter of contest between the parties that both infarctions including the one from which he died, were significantly contributed to by the veteran's diabetes."
The evidence of Dr. Burnet, who was called by the Commission, was to the effect that whilst diabetes could be aggravated by stress, there was no evidence to suggest that diabetes was caused by stress. According to the learned Deputy President the evidence of Dr. Phillips, who was called by the appellant, "was not dissimilar to that of Dr. Burnet. The differences between them were mainly emphasis." She went on to summarise Dr. Phillip's opinion in paragraph 31 of the determination in these words:-
"Dr. Phillips was careful in giving his evidence to emphasise that he was not prepared to accede to the view that stress was causally connected to diabetes but acknowledged that there was 'an association' between diabetes and stress in that stress could aggravate diabetes and therefore accelerate death."
However, she also noted in paragraph 30 that Dr. Phillips had expressed the view that it was possible for the deceased to have suffered the onset of diabetes whilst he was undergoing war service.
Dr. Williams, a psychiatrist, gave evidence on behalf of the appellant. He was of the opinion that the obesity from which the deceased suffered during his war service was probably due to stress but he was not prepared to say that obesity could cause diabetes, although it might aggravate a pre-existing condition. Even so, Dr. Williams did not suggest that the deceased's post-war obesity was related to his war service; he agreed that there were other possible explanations such as eating more regularly and post-war stress that was related to his work in civilian life.
Having completed her summary of the medical evidence the learned Deputy President, in paragraphs 36 to 41 of her determination, then addressed the subject that she identified with the words "standard of proof". Her remarks were the subject of challenge by Mr. Lander but I will return to them at a later stage of these reasons. In paragraph 42, having identified the three hypotheses that had been postulated by the appellant, she said:-
"Before looking at these hypotheses individually, it is necessary to firstly make findings of fact relevant to each hypothesis. I am satisfied on the evidence that the eligible war service undertaken by the veteran in particular his service during his attachment to the Royal Australian Air Force up until July 1945, was stressful and that he suffered from stress as a consequence of that service. I am also satisfied that whilst the veteran was on war service and also post-war in civilian life, he suffered from obesity and that the obesity commenced during his period of service. I also find that having regard to the symptoms which the veteran displayed as described by the applicant, he was, on the balance of probabilities, suffering from diabetes when they first began courting in 1948 but which was not disclosed until 1952 when traces of sugar were found in the veteran's urine and in the absence of any treatment, developed into a moderately severe condition in 1954. I am also satisfied that the veteran suffered from atheroscleroma, ischaemic or coronary heart disease and eventually died from a myocardial infarction in 1985.
Having found these facts on the balance of probabilities, I now turn to consider whether or not there is a reasonable hypothesis which links those conditions as found to his particular service."
Mr. Lander criticised these two paragraphs. He said that they show that the learned Deputy President misconceived the nature of her responsibilities. His case was to the effect that the Deputy President's role did not call for her making findings of fact; it was not for her to weigh up competing evidence; it was not her responsibility to find, as facts, that the deceased suffered stress and obesity during his war service; she merely had to consider whether any one of the hypotheses was a reasonable hypothesis. In short, Mr. Lander said that the learned Deputy President assumed the role of a trier of fact in her attempt to determine the truth of the matter. He also argued that she "confused" scientific medical facts with hypotheses. In paragraph 45 she had said that she accepted the medical evidence that diabetes was a high risk factor for the precipitation of various heart diseases and resultant death. Mr. Lander therefore claimed that, having made a finding in those terms, it was inappropriate for her to add:-
"I find the causal links between those conditions to be a reasonable hypothesis. This is consistent with all of the medical material before me and there is certainly no evidence to suggest the contrary. Therefore, in each of the three hypotheses this causal connection at least exists as a reasonable hypothesis."
According to Mr. Lander, there had been an unnecessary finding of fact about the causal link between diabetes and heart diseases but, having made such a finding, it became a non-sequitur to classify a finding of fact as a reasonable hypothesis. Even though the finding of fact gave primary assistance to his client's claim, Mr. Lander mounted this attack on the reasoning process of the learned Deputy President in support of his claim that her process was flawed to such an extent and her application of the law was so misdirected that the appeal should be allowed. Taken in isolation, I do not consider that there is any merit in this argument. Assuming that Mr. Lander's assessment of the language that was used is accurate, to find as a fact, the existence of an issue which, in turn, is said to be part of an hypothesis is merely affording to the proven fact a status that is higher than the required status. Whether or not the language used is indicative of the use of an inappropriate test is another matter which I will discuss at a later stage of these reasons.
In paragraphs 46 - 49 of her reasons, the learned Deputy President considered each of the three hypotheses in turn, concluding in each case that each was not a reasonable hypothesis. The first hypothesis had claimed that war-time stress had caused the diabetes which led to death as a result of the myocardial infarction. In declining to classify this hypothesis as a reasonable hypothesis the learned Deputy President said that there was no evidence which suggested that stress can cause diabetes and there was no evidence that the deceased suffered from diabetes before 1948. Mr. Lander particularly complained about the following statement which appeared in paragraph 46 of her reasons:-
"I have nothing upon which I can infer that the veteran's diabetes existed prior to 1948 and any such finding must be mere guesswork."
The use of the word "finding" pointed to error according to Mr. Lander for he maintained that no finding was necessary. Furthermore, he relied on the passage in Dr. Phillips' evidence (which was referred to in paragraph 30 of the Tribunal's reasons) to the effect that it was possible that the deceased had diabetes during the war years. Mr. Lander maintained that there was no obligation on his client to prove that her late husband had diabetes during the war: to require proof of that fact would mean, at the least, that there was an onus placed on the appellant and, as he correctly pointed out, sub.s 120(6) makes it clear that there is no such onus on any party. It was sufficient, said Mr. Lander, to point to a reasonable hypothesis - and, so he claimed, the opinion of Dr. Phillips was sufficient to establish that particular hypothesis and to classify it as reasonable. At a later stage of his argument, Mr. Lander extended this argument by submitting that the learned Deputy President was not required to examine an hypothesis to test whether it was correct; any examination should be limited to an assessment of its reasonability. He claimed that she had proceeded about her task in a manner consistent with the civil adversary system. That, he said, demonstrated error in her approach to the law.
I have come to the conclusion that this criticism of the reasoning process of the learned Deputy President is without foundation. In fact, it amounts to a repetition of the same argument that was submitted to and rejected by the Full Court in East's case. East's case contains a history of the legislation that has dealt with claims of the nature now under consideration. It pointed out that the high-water mark for claimants was the majority decision of the High Court in Repatriation Commission v O'Brien (1985) 155 CLR 422 but that the current legislation was borne out of the dissenting remarks of Brennan J. in that case. The Full Court, in East's case, explained the meaning of "reasonable hypothesis" in this way:
"The adoption of Brennan J's notion of a reasonable hypothesis meant that Parliament was requiring something by way of a causal link, but which fell short of proof of the link - even prima facie - as a fact. The meaning of the phrase 'reasonable hypothesis' was felicitously explained by a Veterans' Review Board in Stacey (unreported Nos V83/0396, V84/0821 and V28/072, 26 June 1985); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatrication Commission (1986) 5 AAR 253 at 254-255: 'A hypothesis may be conveniently defined as : "proposition made as basis for reasoning, without assumption of its truth; supposition made as starting for further investigation from known facts; groundless assumption": The Concise Oxford Dictionary.
...
The addition of the word "reasonable" would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be "raised" by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a (sic) least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.'
We agree with this analysis. 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." (pp 532-3).
In their separate judgments in Webb's case both Davies J. and Foster J. endorsed that statement.
In East's case at p 531, the Full Court rejected a proposition that it was sufficient "to exclude a determination adverse to the claimant in any case where there exists a possibility which is not fantastic or unreal, that is real". It seems to me that, Mr. Lander was advocating the rejected proposition.
Mr. Lander also submitted that the Tribunal had misapplied sub.s 120(3) by virtue of the fact that Dr. Phillips had allowed for the possibility that the deceased may have been diabetic during the war; he claimed that such a possibility should have been classified as a reasonable hypothesis. Beaumont J. at first instance had said in Repatriation Commission v Webb (1987) 76 ALR 131 at p 135 -
"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."
Although the appeal in Webb's case was successful, the Full Court said nothing to suggest that this statement was inappropriate; indeed the remarks of Davies J. in the Full Court are to the same effect. Even so, the hypothesis, to be reasonable, must be more than a possibility.
In my opinion, this is the answer to Mr. Lander's argument. In allowing for the possibility that Mr. Doolette had diabetes during the war, Dr. Phillips' evidence did not advance beyond the stage of a possibility.
The second hypothesis claimed that war-time stress caused obesity which caused diabetes and that the diabetes thereafter caused the myocardial infarction from which he died. Assuming that the onset of diabetes was in or about 1948, the learned Deputy President said in paragraph 47 of her reasons that she was "not satisfied" that the deceased was still suffering from war-induced stress in 1948. She also said that she was "not satisfied that there would have been a sufficient connection between the stress he suffered in war service and the onset of diabetes". She then added: "For these reasons, I do not consider the above to be a reasonable hypothesis". Although she did not make mention of it in this paragraph of her reasons, she had earlier noted in paragraph 32 that Dr. Williams "was not prepared to say that obesity could cause diabetes".
The third and final hypothesis was based upon the premise that the war-induced stress aggravated the deceased's diabetes and, consistently with the other hypotheses, the diabetes led to the myocardial infarction and ultimate death. The learned Deputy President approached her consideration of this hypothesis in the same manner and Mr. Lander raised the same criticism about her use of the word "finding". She said of this hypothesis in paragraph 49 of her reasons:-
"The difficulty with this hypothesis is that I do not consider there is any evidence to support a finding that the veteran continued to suffer from stress caused by the veteran's war service for any length of time after his service terminated so that it was a continual aggravating factor leading to an accelerated death."
Putting to one side for the moment the objections that Mr. Lander raised, the views (to use a neutral word) of the learned Deputy President about the three hypothesis can be summarised thus: she was satisfied that the deceased suffered during the war from stress and obesity and that both were war induced: she was satisfied that the deceased was diabetic from, perhaps as early as 1948, and definitely in 1952 and thereafter: she was satisfied that his diabetic condition would have been a significant contributing factor to the myocardial infarction: and there is no doubt that that was the cause of his death. Yet despite these degrees of satisfaction, she still had to consider whether there was a reasonable hypothesis "connecting the... death with the circumstances of the particular service rendered by the (deceased)" (sub.s 120(3)). The views of the learned Deputy President were:
(1) that she was "not satisfied" that there would have been a sufficient connection between the war induced stress and the onset of diabetes (paragraph 47).
(2) that she did not consider there was "a reasonable hypothesis" connecting his obesity with the onset of his diabetes (paragraph 48); and
(3) that there was no "evidence to support a finding" that he continued to suffer from war-induced stress for any length of time after his service terminated (paragraph 49).
Mr. Lander referred to the lengthy passage from the judgment in East's case to which reference has already been made. He accepted, as indeed he was bound to do, that this passage correctly stated the law. Indeed the learned Deputy President quoted the same passage in her determination, correctly identifying it as the proper explanation of the term "reasonable hypothesis". But, said Mr. Lander, she had failed to apply it in her reasoning. I have already rejected Mr. Lander's general proposition on this subject but it is now necessary to mention a specific complaint that he made.
Relying on the two theories that were referred to in the Tribunal's determination that was quoted in East's case, he said that both were present in the material that was before the Tribunal. He claimed that the war-time existing and subsequent post-war related stress was the postulating of "a known medical fact but in circumstances not known to have definitely existed in the instance case". Then he said that Dr. Phillips' allowance for the possibility that diabetes existed during the war was "postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable".
In my opinion both these propositions must be rejected. As to the first the question to be asked is: what is the known medical fact? The answer quite clearly, in this matter, is limited to the existence of stress whilst on active service. The particular hurdle that cannot be surmounted by the appellant was the total absence of any material suggestive of the continuance of war induced stress at the time of the onset of diabetes. The second proposition can be disposed of peremptorily. There was nothing in the material before the Tribunal that postulated an unproven medical principle. For example, the proposition that stress caused diabetes could not be classified as an unproven medical principle; it was a proposition that was rejected by the medical witnesses.
I turn next to the complaint that the Tribunal approached its task in the same manner as would a member of the judiciary who was presiding over a civil trial. I believe that the answer to this complaint can only be given by reviewing the totality of the Tribunal's reasons; an individual attack on specific words that have been used or on loose grammar or terminology is of no value, unless they, when read in their entirety, are proper indicators of a flawed reasoning process. It is well to start this exercise by reminding oneself that proceedings of this nature are inquisitorial - they do not belong to the adversary system. So much is clear from the provisions of sub.s120(6). Nevertheless, it remains necessary for the Tribunal to give consideration to the whole of the material before it and, within the parameters laid down by s.120, to come to a conclusion which is governed by the use of the words "determine" and "satisfied". For example, and Mr. Lander was forced to make this concession, the material before the Tribunal had to point to the death of a person who was a veteran and the appellant had to be the widow of the veteran. These are matters to which sub.s120(1) referred and they have nothing whatsoever to do with the concept of the "reasonable hypothesis" to which sub.s 120(3) applies. Even though his remarks were directed to the provisions of the repealed Repatriation Act, I nevertheless consider that what Brennan J. said in O'Brien's case at p 441 remains apposite when considering the current legislation:-
"Where there are rational grounds available for resolving a conflict in medical opinion, the decision-maker does not perform his duty by pointing to the conflict and saying that the mere existence of the conflict binds him to find in favour of the claim. To decide a claim in that way is to abdicate the function of determination cast upon him by the Act and to relegate the decision on the critical issue to the expert whose opinion supports the claim."
In East's case the Court approved of the approach taken by the Tribunal whose determination was on appeal. The Tribunal was quoted as saying that for a hypothesis to be reasonable "it must be grounded on evidence as to the circumstances of the particular service rendered by the veteran" (p 533 1 original emphasis). This terminology was picked up and used frequently by Hill J. in Gilbert v Repatriation Commission (1989) 86 ALR 713 at pp 719, 721); references to "facts", "evidence", "finding" and "findings of fact" also appear in his judgment without criticism or comment.
Irrespective of the terminology that might be used, the provisions of sub.s 120(3) must be applied in the light of the remarks contained in the judgments of Davies J. and Foster J. in Webb's case:-
"The requirement of s.120(3) of a reasonable hypothesis is not a requirement that facts must be established positively in the claimant's favour." (Davies J. at p 142)
"... the hypothesis or theory of connection between the veteran's service and his injury, disease or death, postulated upon this data is not required to be established to any degree of proof commonly referred to in the law." (Foster J. at p 147)
It is not without interest to note that immediately preceeding the passage quoted above Foster J. had said that:-
"... the data, upon which the reasonable hypothesis referred to in s.120(3) may or may not be raised, must, at the end of the day, be found by the Commission to exist."
It is of course true to say that the expression "findings of fact" is familiar terminology in the adversarial process and no doubt, it would be preferable to avoid its use in proceedings of this kind. But its use is to be assessed, not in isolation, but within the context of the entire determination. When this is done, it enables me to say that the learned Deputy President's remarks could not be taken to mean, without more, that she misconstrued her task.
For example, I have already quoted paragraph 43 of her reasons in which she said "... it is necessary to firstly make findings of fact...". Two things can be said of the contents of this paragraph: first each finding of fact was favourable to the appellant's case; secondly if the impugned words had been replaced with words such as "... it is necessary, first to determine what matters are grounded in facts...", I venture to suggest that Mr. Lander would have been hard-pressed to raise a complaint. Yet, both statements amount, in practical terms, to the same exercise.
The exercise that was of greater importance was the approach of the learned Deputy President to the concept of a "reasonable hypothesis". As I have already said, she quoted the passage from East's case that I have already referred to, emphasising that section of it which drew the distinction between material that was sufficient to point to the hypothesis and material that merely left the hypothesis open.
In paragraph 44 she directed herself to "consider whether or not there is a reasonable hypothesis which links those conditions as found to his particular service". Her statements that there was "no evidence" and that there was nothing upon which she could infer "any such finding" (paragraph 46) infelicitous perhaps, were all used in her repeatedly stated exercise that she was considering whether or not there was a reasonable hypothesis. Criticism might have been avoided or, at least, minimised if she had chosen words such as those used by Hill J. in Gilbert's case at p 719 -
"... an hypothesis advanced in abstract which is not grounded in facts which are before the Tribunal could not be a reasonable hypothesis. The hypothesis must expressly be one which is raised by the material which is before the tribunal."
Subject to one remaining matter which has caused me some concern, I have concluded that I must reject Mr. Lander's arguments.
The learned Deputy President addressed the question of standard of proof by referring to the decision of the Tribunal (over which she presided) in Ames v Repatriation Commission (s.85/124, Decision 3521, delivered 3 June 1987, a month or so before the decision of the Full Court in East's case). She quoted a passage from the determination in Ames case, claiming that it was consistent with East's case notwithstanding that a differently constituted tribunal had expressed the contrary opinion: (Re Cashmere v Repatriation Commission (decision 4166, delivered 11 February 1988). The passage from Ames was as follows:-
"It is useful to note the complication which may arise regarding the standard of proof in a situation in which the disease or injury alleged to be suffered by the applicant itself arose out of, or was attributable to, another injury or disease which in turn the veteran alleges was due to conditions of war service. This was the particular situation which arose in the decision in O'Brien (supra) where it was alleged that the veteran's hypertension was, amongst other factors, due to the anxiety state which in turn was due to war service. In such a situation, the existence or otherwise of hypertension, and the existence or otherwise of the anxiety state, as well as the particular conditions of war service, must each be proved to the satisfaction of the Tribunal or, to put it another way, must be established on the balance of probabilities. However, the connection between the hypertension and the anxiety state and in turn the anxiety state and the conditions of war service, must be considered on the basis of a reasonable hypothesis so that there is a link, on a reasonable hypothesis, between the hypertension, the anxiety state and the war service. That this approach was adopted is clear from the decision in O'Brien
(supra)." (Emphasis added)
In my opinion the passage that I have underlined is not a correct statement of the law. It confuses the question of standard of proof with onus of proof. To require a medical state or condition or ailment to "be proved" immediately directs the attention of the reader to the qustion: who must prove it? As sub.s 120(6) and the authorities quite clearly show, there is no onus on any party to prove anything. It is true that there would have to be material before the Tribunal sufficient to identify the existence of a war-induced anxiety state and a present state of hypertension, but I am by no means satisfied that the "balance of probabilities" would be the appropriate test. The provisions of paras. 119(1)(f),(g) and (h) strongly suggest that test would be something less than the "balance of probabilities".
However, in the final analysis I have concluded that this error on the part of the learned Deputy President does not vitiate her determination. In her reasons, it is clear that she rejected each of the three hypotheses - not because the quality of the material that was before the Tribunal was insufficient to meet an onus - but because there was no material which raised or pointed to a hypothesis that there was a causal link between diabetes on the one hand and either stress or obesity on the other hand.
It is clear to me that the learned Deputy President came to the correct conclusion in this particular matter notwithstanding the error that I have identified.
The appeal must be dismissed.
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