Downing, M.V. v The Repatriation Commission

[1985] FCA 114

Re: MYRTLE VIOLET DOWNING
And: THE REPATRIATION COMMISSION
No. WA G44 of 1984
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Repatriation - appeal under former s.107VZZH of the Repatriation Act - death of former member of Armed Forces from carcinoma - refusal by Repatriation Review to grant applicant's claim for a war widow's pension - whether death of member arose out of or was attributable to war service - test to applied by Tribunal - observations concerning the role of Tribunal in accepting or rejecting medical evidence - whether a possibility that death was attributable to war service, when supported by medical evidence, must be destroyed by other medical opinion for the Tribunal to be satisfied beyond reasonable doubt that there are insufficient grounds for the claim

Repatriation Act 1920 ss.47, 101, 107VZZH

Administrative Decisions (Judicial Review) Act 1977 ss.5, 6

HEARING

PERTH
#DATE 27:3:1985

ORDER

1. The appeal be dismissed.

2. Liberty to apply on the question of costs.

JUDGE1

The applicant's husband, a member of the Forces within the meaning of the Repatriation Act 1920, died on 26 September 1974. On 25 October 1974 the applicant lodged a claim for a pension under the provisions of the Act and that claim was rejected by the Repatriation Board on 21 November 1974. Since that time there has been a bewildering series of appeals and applications for reconsideration. The appeal to this Court is from a decision of the Repatriation Review Tribunal that there were insufficient grounds for granting the applicant's claim for a pension.

1. Because a number of recent applications to the Court involving the Repatriation Act have been under the provisions of the Administrative Decisions (Judicial Review) Act 1977, it is of some importance to appreciate the difference between such applications and an appeal such as the present one. Jurisdiction under the Judicial Review Act is exercisable on one of the grounds set out in s.5 or s.6 of that Act. Section 107VZZH of the Repatriation Act authorised an appeal to the Federal Court from a decision of the Repatriation Review Tribunal "on a question of law". That section was repealed after the institution of this appeal; no question has arisen as to the entitlement of the applicant to proceed to a hearing of her appeal.

2. The questions of law have been identified in the notice of appeal as questions whether the Tribunal "could" on the evidence before it make certain findings, in particular a finding that there were insufficient grounds for granting the applicant's claim. The respondent did not contend that the appeal was not on a question of law and, as the grounds of appeal were formulated and argued, I am satisfied that the Court has jurisdiction to entertain the appeal.

3. It is unnecessary to trace the chain of appellate and review steps taken by the applicant before the matter reached the Repatriation Review Tribunal. It is enough to note that the Tribunal's decision, which was a lengthy and detailed review of the history of the applicant's claim and of the medical evidence relating to her husband's death, was a decision affirming a decision of the Repatriation Commission that there was insufficient reason to review a decision of the War Pensions Entitlement Appeal Tribunal that it was satisfied beyond reasonable doubt that there were insufficient grounds for allowing an appeal against a decision of the Repatriation Commission rejecting the applicant's claim. The Repatriation Review Tribunal found on its review of the evidence that it likewise was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. Because of the way in which the Tribunal expressed its decision and because of the way in which the present appeal was argued, there is no need to look earlier than the decision of the Tribunal. The question is whether or not that decision was wrong in law.

4. The cause of Mr. Downing's death was carcinoma of the colon. He was a member of the Forces from 6 February 1942 until 2 January 1945. There is nothing particularly significant in his medical history during that time but for 16 months he served in Papua New Guinea.

5. Mr. Downing's medical history preceding his death may be summed up in this way. On 2 March 1973 a polyp was detected in the anal canal in the lower rectum. The polyp was excised by Mr. Goatcher on 11 April. On 23 November 1973 Mr. Downing was admitted to Repatriation General Hospital Hollywood following a diagnosis of appendicitis. Various tests were carried out and there was a question as to the existence of carcinoma. On 6 January 1974 a diagnosis was made of a well differentiated adenocarcinoma of colonic type. The medical records for the following day refer to a rapidly growing carcinoma of the rectum which was irreparable. On 8 April 1974 Mr. Downing was admitted again to Hollywood Hospital for investigation of a colostomy dysfunction. Although there are extensive medical records for the following months, they do not assist in the determination of the issues presently before the Court. On 20 June Mr. Downing was readmitted to Hollywood Hospital and remained there until his death on 26 September.

6. In considering the appeal to it the Tribunal was presented with a number of medical opinions, some directed expressly to Mr. Downing's death and others of a more general nature relating to the aetiology of carcinoma. The Tribunal did not have available to it the recent decision of the High Court in The Repatriation Commission v. O'Brien (unreported decision, delivered 27 February 1985). The High Court was concerned with an appeal relating to the hearing by the Commission of an appeal from a determination by a Repatriation Board but the matters canvassed by the Court and the principles enunciated are of equal application to an appeal to the Repatriation Review Tribunal. The majority (Gibbs C.J., Wilson & Dawson JJ.) rejected the Commission's contention which had been expressed in this way:
   
   

"It argues that if there is no evidence accepted by the Tribunal that a claimant's incapacity arose out of or is attributable to his war service, it must follow that the Tribunal will be satisfied beyond reasonable doubt that there are insufficient grounds to grant the claim. These grounds will be insufficient if there is nothing in the material accepted by the Tribunal that points positively to a real possibility of the requisite connexion between incapacity and war service". (at p.9)

1. Their Honours said that the following considerations must be borne in mind:
   
   

"(a) there is no onus of proof of a claim placed on a claimant (see s.24AA(2));

(b) no matter how diligent the Department may be in its investigation of the claim, there is no guarantee that it will discover all relevant facts;

(c) the Commission, in considering an appeal, must take into account the various matters set out in s.47(1)(b); and

(d) a claim must be granted unless the Commission 'is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim' (see s.47(2))". (at p.11)

1. While accepting the exposition contained in the joint judgment of Keely and Fitzgerald JJ. in O'Brien v. Repatriation Commission (1984) 1 FCR 472, the majority in the High Court said:
   
   

"Two matters should however be made clear. The first is that although their Honours spoke of the disproof of a fact, s.47(2) does not require the Tribunal to grant a claim unless it is satisfied beyond reasonable doubt of the non-existence of every evidentiary fact. The question for the Tribunal is whether it is satisfied, beyond all reasonable doubt, that there are insufficient grounds for granting the claim; it will disallow a claim if it is satisfied beyond reasonable doubt that 'any fact necessary to establish entitlement' (Law, at p.652) does not exist. Secondly, it remains the duty of the Tribunal to decide questions of credibility even where the witnesses who are in conflict are expert witnesses, for example, where a challenge is made to the standing or expertise of the expert in question or when the basis of the expert's opinion is destroyed in cross-examination". (at pp.12-13)

1. I have referred at some length to the judgment of the majority in O'Brien because it provides the legal setting in which the present appeal should be considered. It becomes unnecessary to refer to the many decisions of the Federal Court under the Repatriation Act though some reference to other authority will be made.

2. As mentioned earlier, the reasons for decision of the Tribunal are lengthy and detailed. Much of this length and detail is taken up with the personal history of the deceased and the forensic history of the applicant's claim. There is no need to refer to these matters to any greater extent than has already been mentioned in these reasons for judgment. But it should be observed that early in its reasons the Tribunal posed the relevant test in these terms:
   
   

"The matter to be decided by the Tribunal is not whether it is satisfied there is a relationship between the member's war service and his death but whether it is satisfied beyond reasonable doubt that any such relationship has been excluded.

...

The Tribunal must find for the applicant and set aside the Commission decision unless it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim".

1. There can be no quarrel with the test enunciated by the Tribunal. It is in accord with a line of authority, in particular the judgment of the High Court in Repatriation Commission v. Law (1981) 147 CLR 635.

2. In chronological terms, the first relevant medical opinion was that of Dr. L.M. Corbet, a departmental medical officer. In a report dated 15 November 1974, Dr. Corbet said in relation to the carcinoma of the colon that its cause was unknown. In his opinion death was not referable to war service because the condition which brought about Mr. Downing's death was "post war in origin", the cancer having "started" between November 1973 (when the deceased's abdomen was opened for pelvic abscess and rectal perforation and no malignancy was reported) and January 1974 (when the growth was discovered after sigmoidoscopy with biopsy).

3. The Tribunal had before it the following documents:
   
   1. A copy of a letter from the Cancer Council of Australia
   

dated 17 July 1975 that "the time/development factors in respect to both carcinomas and leukaemia and allied disorders are unknown".

2. Two reports by Dr. E.W. Kyle, one dated 23 March 1976

and the other dated 20 June 1977. In his initial report Dr. Kyle stated that the cause and pathological history of carcinoma is not known but it is known that it may remain dormant for very long periods of time. He continued:

"Certain precursers have been well documented as benign lesions which themselves are known to be symptom free even for a whole lifetime. The ex-member had a benign polyp in 1973. It is impossible to say how long this had been present but it is almost certainly the precurser of his malignancy".

In his second report, which followed the Repatriation Commission's rejection of the applicant's appeal, Dr. Kyle dealt with the relationship between Mr. Downing's death and his war service. He stated:

"1. Entero-colic diseases in New Guinea were almost universal.

2. Entero-colic diseases are certainly involved in the etiology of polypi.

3. The time factor - Decades pass very often before polypi become malignant. In fact some never become malignant. This has been very well documented in the literature. They are extremely difficult to diagnose and often symptomless.

4. The tumour was far advanced when first treated. It was large and metastasised. I therefore believe that the precursors of the ex-member's tumour were possibly, or even probably present while on service".

1. An extract from a World Health Organisation publication

entitled "Health Hazards of the Human Environment" stating that there is a long interval (20-40 years) between exposure to an agent and the diagnosis of cancer.

1. Extracts from a publication "Health Physics", being an

article by W.C. Hueper : "Public Health Hazards from Environmental Chemical Carcinogens". In that article the author spoke of the usually long latent period (10-40 years) which elapses between the first contact with the carcinogen and usually long delayed manifestation of an environmental cancer. For this reason, the author commented, "... it is likely that the progressive rise in cancer frequency with advancing age reflects the action of carcinogens operating at a low level over decades or the entire life span".

1. A lengthy paper by Sir Edward Dunlop, a specialist of

high repute in the field of cancer, entitled "The Acceptance of Cancer as War Caused". This paper was prepared for the purpose of the proposed review of the Repatriation Act in 1970.

I propose to paraphrase sections of the report to point up the most relevant comments. There is no single cause of cancer and the latent period after exposure may be several decades so that the causal factor seems remote. Particular types of carcinoma have been found among people engaged in particular occupations, living in certain regions or possessing racial differences. When a service man or woman is sent to another climate and a very different environment, he or she may be exposed to carcinogenic factors which would not have operated under normal circumstances and this may determine cancers which are not in evidence until middle age or old age. Some of these cancers may be harboured for years without clinical evidence of their presence. The resistance of an individual to tumour may be affected by impairment of health and altered immune processes resulting from war caused disease or nutritional disturbance. In ex-servicemen there is a strong association of ulcerative colitis with colon and rectal cancer. Chronic dysentery including amoebic dysentery does not appear to have any very obvious association but dysentery may be followed by non specific colitis and the "irritable colon" difficult to distinguish from mild ulcerative colitis. A majority of cancers have been shown to be due to environmental factors and the incubation period may be very long. The expanding knowledge of environmental causes of cancer supports the contention that many cancers affecting ex-servicemen in later life may have been determined by factors operating during their service.

1. A report by Dr. Perkins, a departmental medical officer,

reviewing the material to which reference has just been made. In Dr. Perkins' view, to suggest that because of the ignorance of the duration of cancer development there is a possibility that the first beginnings of Mr. Downing's cancer occurred during service was "pointless speculation". There was no causal relation between the polyp and the carcinoma and there was no evidence of multiple polyps in a barium enema examination on 9 January 1974 or at operation. The only known predisposing factors in the case of carcinoma of the rectum are certain diseases but there was no record that Mr. Downing had ever suffered from any of these. The incapacity from the carcinoma was first manifest in early November 1973 with the onset of abdominal pain. Dr. Perkins' conclusion was as follows:

"On present medical knowledge there is no relation between any injury or illness occurring during veteran's service or the conditions of his service and the carcinoma of the colon (recto-sigmoid) that presented in November 1973. It developed in circumstances similar to that of most rectal carcinomas occurring in this society".

1. Notes by Dr. M. Lockett, Emeritus Professor in

Pharmacology, which go no further than to hypothesise a relationship between cancer in war veterans who served in Burma and a diet of food preserved by nitrate treatment combined with anti-malarial therapy.

1. A letter from Dr. M.M. Gollow, a venereologist with the

Department of Public Health, in which he describes Sir Edward Dunlop's report as "excellent" but says that he has nothing to add "other than to say that exciting new developments regarding the causation of carcinoma are coming to light all the time".

1. A review of the evidence by Dr. S.J. Wright, a

departmental medical officer, dated 17 December 1976 confirming "unequivocally" that incapacity from the adenocarcinoma in the rectosigmoid area presented at the age of 67 in the case of Mr. Downing. Dr. Wright's conclusion was that Dr. Perkins' report was "both fair and tenable in the present state of knowledge and on available facts rather than hypothesis/speculations".

1. The appeal book does contain some other material of a medical nature not directly related to Mr. Downing. As most of the material was not mentioned by the Tribunal in its reasons for decision and was not referred to by counsel in the course of their arguments, I do not propose to refer to it. I mention however a paper prepared by Dr. D. Metcalf entitled "General Comments on the Possible Relationship between Malarial and other Infections on the Subsequent Development of Lymphosarcomas, Lymphomas, Leukaemias and other Cancers in Ex-Servicemen". This paper was prepared by Dr. Metcalf as a commentary on the medical implications of Re Byrne (1981) 3 ALN No. 43 in which Dr. Metcalf had given evidence. In its reasons for decision the Tribunal set out at length Dr. Metcalf's comments but found that the evidence in Re Byrne was not relevant to the case under review. In the applicant's submission Dr. Metcalf's opinion constituted general medical evidence upon which the Tribunal was entitled to act. A similar submission was made in regard to evidence given by Professor Tattersall in Re Lennell (1982) 4 ALN No. 170. I accept that Dr. Metcalf and Professor Tattersall's opinions were general medical evidence upon which the Tribunal might act. But the Tribunal held that the opinions were not relevant to the case before them and I am not persuaded that they erred in so holding.

1. The Tribunal discussed at some length a number of decisions of this Court and the judgment of the High Court in Law. In dealing with a submission by the Commission's advocate that there was no evidence of facts to support the claim, the Tribunal said:
   
   

"No evidence, of course, is not the test to be applied. Rather the test is 'is there evidence of disproof?'. The fact that there is no evidence is one of the factors that must be taken into account by the Tribunal when deciding for itself whether the Commission's 'onus of disproof' beyond reasonable doubt has been discharged."

1. I do not think that that statement is open to objection. The Tribunal went on to say that it had carefully considered all of the evidence and the submissions and it made certain findings of fact which are best set out verbatim.
   
   

". There is no dispute that the cause of death was Cancer of the Colon.

. The member suffered from Dengue fever during his war service.

. That it was possible that the member had suffered diarrhoea during his service but not so severe as to having to report it.

. That the polyp removed in 1973 was benign and not found to be pre malignant.

. A sigmoidoscopy carried out at that time did not reveal any other polyp.

. That the cancer from which the member died was discovered in 1974 after a further sigmoidoscopy with biopsy and it was a rapidly growing cancer with secondary spread.

. That the Repatriation Commission in reaching its various decisions had fully investigated all of the evidence on the files and material presented as support in the various requests for review and had satisfactorily discharged its onus of proof.

. From the evidence on file and material presented the Tribunal is satisfied beyond reasonable doubt that the cancer of the colon from which the member died was first manifest in 1974.

. That on the medical evidence of facts, it is a speculative proposition to try to relate the member's death with his war service.

. That the medical opinions on which the Repatriation Commission based its decisions establishes beyond reasonable doubt that the cancer from which the member died was unrelated to his war service in terms of Section 101 of the Repatriation Act 1920".

1. As mentioned earlier, s.107VZZH provided a right of appeal on a question of law. Where it can be shown that the Tribunal has erred in its approach to the matter before it, it may be a short step to show that there has been an error of law. But, in my view, in the course of a very long judgment the Tribunal did not lose sight of the question before it viz. whether it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. As the High Court pointed out in O'Brien, it is the duty of the Tribunal to decide questions of credibility even where the witnesses who are in conflict are expert witnesses. The practice of the Tribunal appears to be to rely on written material and not to require the attendance of medical witnesses, a practice which is entirely understandable but which causes some difficulty where there is a conflict of evidence. This was the situation in Law in which Aickin J. distinguished the situation of a civil action and that of proceedings before the Repatriation Review Tribunal. At p.651 he said:
   
   

"The Review Tribunal in the present case was in a very different position. In the first place it had only the written reports of the expert witnesses. Moreover, it was required to find in favour of the applicant unless it was satisfied beyond reasonable doubt that there were insufficient grounds for doing so. Thus a heavy onus was placed upon the Commission to satisfy the Tribunal beyond reasonable doubt of that negative proposition. Although the medical reports were in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong".

1. In the present case Dr. Kyle's reports and Sir Edward Dunlop's paper might be said to be favourable to the applicant. But, at its highest, Dr. Kyle's report said no more than that the precursors of Mr. Downing's tumour were possibly or even probably present while on service. In terms of s.101 of the Act, this does invite an inference one way or the other whether Mr. Downing's death resulted from an occurrence on service or arose out of or was attributable to service. It is neutral in this respect. As to Sir Edward Dunlop's report, it must be remembered that he was not directing his attention to the facts of the present case. It is apparent from his report that the causes of carcinomas are various, that environmental factors are among the causes and that the incubation period may be very long. Of course the question is not whether those views support the applicant's claim but whether, in the light of them, the Tribunal was entitled to be satisfied beyond reasonable doubt that Mr. Downing's death was not due to his war service.

2. In truth this is not a case of a conflict of medical opinion, despite the amount of material furnished to the Tribunal. The reports of Dr. Kyle and Sir Edward Dunlop were of a general nature; the opinions of Drs. Corbet, Perkins and Wright were more specific. The question is not whether the Tribunal was entitled to prefer one view to another. As the High Court pointed out in O'Brien, the Act does not require the Tribunal to grant a claim unless it is satisfied beyond reasonable doubt of the non-existence of every evidentiary fact. The question for the Tribunal was whether it was satisfied, beyond all reasonable doubt, that there were insufficient grounds for granting the claim. The conclusion of the Tribunal was that it was satisfied beyond reasonable doubt that the cancer of the colon was first manifest in 1974, that it was a speculative proposition to try to relate Mr. Downing's death to his war service and that the medical opinions on which the Commission based its decision established beyond reasonable doubt that the cancer was unrelated to war service.

3. Counsel for the applicant submitted that, where the cause of death is unknown or obscure, it is always possible that death arose out of or was attributable to the member's war service. The possibility, he said, may be speculative but nonetheless be real, not fanciful. I do not dissent from that submission as a general proposition but, in a particular case, the "possibility" may call for close analysis. This is important because of a further submission made on behalf of the applicant that, where a possibility is supported by medical opinion, it cannot be regarded as fanciful unless that opinion is destroyed by another medical opinion and that a difference of medical opinion is not sufficient to displace a real possibility supported by one opinion. The difficulty with this proposition is that terms such as "supported by", "destroyed" and "difference" depend, for their operation, upon the facts of the particular case. It also tendsto distract attention from the fact that an appeal under s.107VZZH of the Act is an appeal on a question of law and that, subject thereto, it is the responsibility of the Tribunal to assess the evidence and make findings.

4. It is apparent, from a reading of the Tribunal's reasons in their entirety, that the Tribunal did not regard the medical evidence as supporting a real possibility that Mr. Downing's death was due to war service. On the contrary, it was satisfied beyond reasonable doubt on that evidence that there were insufficient grounds for granting the applicant's claim. In my view this was a conclusion it was entitled to reach. No error of law has been established on the part of the Tribunal and the appeal must be dismissed.