Driver, G.H. v Repatriation Commission

[1991] FCA 262

Re: GEORGE HENRY DRIVER
And: REPATRIATION COMMISSION
No. S G165 of 1990
FED No. 262
Veterans' Entitlements Act 1986

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)

CATCHWORDS

Veterans' Entitlements Act 1986 - whether veteran incapacitated from a war-caused injury - whether "reasonable hypothesis" raised by material before the Tribunal - whether error of law

HEARING

ADELAIDE

#DATE 17:5:1991

Counsel for the appellant : Mr F.C. Brohier

Solicitor for the appellant : Corrs

Counsel for the respondent : Ms C.M. Branson

Solicitor for the respondent : Australian Government Solicitor

ORDER

The appeal be dismissed.

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

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal which had the effect of denying the appellant's claim that he is eligible to receive a pension under the provisions of the Veterans' Entitlements Act 1986 ("the Act").

1. On 5 January 1988 the appellant lodged a claim with the respondent seeking a pension in respect of "lower back - whole of back and both hips". Following a medical examination, a medical officer of the Department of Veterans Affairs diagnosed that the appellant suffered the conditions of spondylosis, and osteoarthrosis of the hips. On 28 March 1988 the respondent determined that the appellant's spondylosis and osteoarthrosis of the hips were not the result of war-caused injury or disease within the meaning of s.9 of the Act. This decision was affirmed on review by the Veterans' Review Board. On further review by the Administrative Appeals Tribunal the decision was again affirmed.

2. It has been common ground throughout that the appellant served in the Australian Army from 1 July 1940 to 29 January 1946 in the 2/48 AIF and other units in the Middle-East and Africa rising to the rank of Lieutenant, and that this period constitutes "eligible war service" including "operational service" within the meaning of the Act. He is therefore a "veteran" whose eligibility for a pension is governed by ss.9 and 13 of the Act which, in relevant parts, provide:
   

9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if -

(a) ...

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ...

but not otherwise.

13.(1) Where

(a) ...

(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to this Act, liable to pay -

(c) ...

(d) in the case of the incapacity of the veteran - pension to the veteran,

in accordance with this Act."

1. The Act in ss.119 and 120 contains provisions dealing with proof and the standard of proof. Section 120 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) ...

(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;

(c) ...

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) ...

(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) ...

(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...

(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. ... "

1. The Tribunal summarised its conclusion in para.28 of its Reasons for Decision as follows:
   

"After consideration of the evidence as a whole, the Tribunal is of the opinion and so finds that the evidence does not raise a reasonable hypothesis connecting the conditions of spondylosis and osteoarthrosis of hips suffered by the applicant with the circumstances of the particular service he rendered. Hence, in accordance with s.120(3) of the Act, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the conditions of spondylosis and osteoarthrosis of hips are war caused."

1. Before turning to the grounds of appeal it is convenient to set out the background facts established by the evidence before the Tribunal. The following summary is taken from the Reasons for Decision of the Tribunal which are not in dispute. The applicant was born on 20 June 1916. He commenced work with an accountant on 6 May 1932 and after studying at night to pass exams he was admitted to membership of the Institute of Chartered Accountants in 1939. Apart from his period of service in the Army, he worked as an accountant or in akin fields for the rest of his working life. Prior to enlistment he was active in sport. He played Australian Rules football and district cricket. After he was enlisted into the Army on 1 July 1940, he was allotted to the Australian Army Pay Corps ("the AAPC"). He embarked on HMT "Stratheden" on 4 November 1940 and arrived in Palestine on 17 December 1940. He served in North Africa. On 6 October 1941, whilst asleep in a sandbagged sangar in Tobruk, he was subjected to aerial bombardment. A bomb landed near his sangar, and the blast threw him against the sandbagged wall of the sangar. His hips and back hit the wall, and he told the Tribunal he felt a pain in his leg. He dragged an injured comrade to the Regimental Aid Post ("the RAP"), 20 yards away; and waited there for attention whilst the RAP staff attended to two other wounded soldiers. When his turn came he collapsed, apparently from loss of blood from his wounds, he said. He was evacuated on 6 October 1941 (the same day) from his unit to 173 Field Ambulance where the diagnosis of Capt D.C. Dawkins, the unit M.O., of:
   

"B.W. L THIGH"

was confirmed. A hospital entry the next day records "Comfortable". On 12 October 1941 an entry in his medical records says -

"Slight pain in leg before evacuation".

He was evacuated from Tobruk by destroyer, under fire, to Alexandria, and then to Kantara. A further entry on his medical card on 13 October 1941 says:

"1. superficial clean wound R Hip region

2. small clean wound R buttock".

However, other entries (including some altered ones) in the medical records indicate that the injuries consisted of a wound in the left upper thigh, a superficial wound in the region of the right hip and a small wound in the left buttock. Of these, the wound in the left upper thigh was the most serious. He was sent by ambulance to the 2nd Australian General Hospital ("2AGH") on 25 October 1941 and a signed entry dated 14 November 1941 says "Healed". He then went to the 1st Australian Convalescent Depot at Kfarvit Ken on 15 November 1941, and was discharged from there on 1 December 1941. He then returned to 2/48 Bn in December 1941, having been away from his position as pay sergeant for a little over two months. In 1943 he embarked for return to Australia, and after disembarkation leave took up a posting in the Victoria Lines of Communications Area, on Army audit duties, which were office duties of a sedentary nature. He remained in Victoria until his transfer to the Reserve of Officers in 1946.

1. Whilst he was in the Army his duties were of a sedentary nature, but he retained an abiding interest in sport, and whilst in the Army he played one football season of about 11 matches in 1944, and part of the 1943/44 cricket season with the Melbourne Cricket Club. He found then that he could not bowl as fast as he had done prior to enlistment. On going to Port Lincoln after leaving the Army in 1946 he helped to train some high school students in cricket. He also took up golf, but found that he became tired after 14 or 15 holes on the hilly Port Lincoln course. He said that he found walking difficult and suffered a dull ache in the lower part of the back, near the hips. He also experienced pain in his shoulders, and if he "took a divot", pain would shoot up his arm.

2. On returning to Adelaide in 1952 he and his wife bought a house in Colonel Light Gardens, and lived in it until 1984. He joined the Glenelg Golf Club, and played 18 holes regularly on Saturday mornings with a group of friends, but found that he experienced dull aches and pains in the back and shoulders, similar to those he had suffered in Port Lincoln; so he gave up playing golf in 1955 and took up lawn bowls instead. However, he continued to suffer pain in the lower back quite often. He continued to play bowls until 1982 but in his last five years of bowling he had difficulty getting up after delivering his ball.

3. Relevant medical evidence before the Tribunal, apart from that set out above extracted from war time records, comprised medical reports from the appellant's general practitioner Dr Pegram who had first been consulted by him in 1985, but who had access to the records of a medical practitioner who had treated the applicant since 1959, and from Drs Eriksen and Sorby Adams who also gave oral evidence. Dr Eriksen, a general surgeon, was first consulted by the appellant in October 1989. Dr Sorby Adams, an orthopaedic surgeon, examined the applicant at the respondent's request in January 1990.

4. The case presented by the appellant was clearly summarised in a letter from his solicitors dated 16 July 1990 which was placed before the Tribunal. The letter reads:
   

"The applicant will argue that it is a reasonable hypothesis that he suffered lower spinal trauma when he was wounded in action on 6 October 1941, and that as a result has suffered spondylosis and osteoarthritis of his spine with an impairment of walking ability, back bend and stiffness."

Based upon their respective interpretations of the incident on 6 October 1941 and its consequences for the appellant, Drs Pegram and Eriksen expressed medical opinions supporting the appellant's case. Dr Sorby Adams agreed with the other doctors that the appellant presently suffers incapacity in his spine and hips, but was of the opinion that these conditions were unrelated to eligible war service. He considered the conditions could readily be explained as being caused by natural degenerative changes in a man of the appellant's age.

1. The medical evidence established that if the appellant had suffered major soft tissue trauma as the result of the bomb blast on 6 October 1941, the present conditions of his spine and hips could be causally related. There was no dispute about this hypothesis. However for the appellant's claim to meet the standard of proof required by s.120 it was necessary that the hypothesis relied upon be a "reasonable hypothesis" raised by the material before the Tribunal. In East v. Repatriation Commission (1987) 74 ALR 518 at 533-534 the Full Court said, in explanation of the meaning of "reasonable hypothesis":
   

"The adoption of Brennan J.'s notion of a reasonable hypothesis meant that Parliament was requiring something by way of 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 (Nos V83/0396, V84/0821 and V28/072); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615:

'A hypothesis may be conveniently defined as: 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point 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 at 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."

1. In Webb v. Repatriation Commission (1988) 19 FCR 139 Davies J. and Foster J. endorsed this statement. At p 147 Foster J. observed that whilst the data upon which the hypothesis was postulated is not required to be established to any degree of proof commonly referred to in the law,
   

"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."

In Gilbert v. Repatriation Commission (1989) 86 ALR 713 at 719 Hill J. expressed the requirement as follows:

"...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."

After a review of the evidence, and in particular having regard to the oral evidence of the appellant that he did not experience back pain as an immediate consequence of the incident on 6 October 1941, and that he did not need to consult a doctor about any pain in his back for the rest of his army service, the Tribunal concluded that there was no foundation in the material before it to support the proposition that the appellant suffered major soft tissue trauma to his back in that incident. It followed that there was no basis in the material before the Tribunal to relate the theoretical hypothesis advanced to the eligible war service. The Tribunal held that the medical opinions of Dr Pegram and Dr Eriksen which assumed major soft tissue trauma were based on a premise that was wrong, and the hypotheses advanced in their evidence had no foundation in fact.

1. The essential conclusions of the Tribunal were conclusions of fact. An appeal lies to this Court only on questions of law: s.44(1) of the Administrative Appeals Tribunal Act 1975. Mr Brohier, who appeared as counsel for the appellant, nevertheless argued that the decision of the Tribunal should be set aside, and he sought to make out errors of law in the reasoning of the Tribunal.

2. The first four grounds of appeal contend that the Tribunal misconceived the case of the appellant. It is contended that the Tribunal concentrated attention on the cause of the condition of the appellant's hips, and failed to consider or determine the hypothesis that the spondylosis and osteoarthritis of the appellant's spine were war caused. It may be accepted that if the Tribunal fell into the errors alleged, the errors were errors of law. These contentions are based on the following sentences which appear near the commencement of the Tribunal's reasons:
   

"The oral and written evidence available to the Tribunal shows that neither party has any quarrel with the diagnosis of the conditions in the original Commission decision of 28 March 1988. The dispute between the parties was therefore confined to the issue of whether or not the conditions of spondylosis and osteoarthrosis of hips were war-caused."

1. I do not consider the Tribunal made the errors alleged, nor do I think anything in the Tribunal's reasons supports the appellant's contentions. The expression "conditions of spondylosis and osteoarthrosis of the hips" appears several times in the reasons, and in contexts which make it clear that the Tribunal is referring to the two conditions diagnosed by the medical officer in 1988. It will be noted that the Tribunal refers to "conditions", not to a single condition. Moreover the explanation of the medical conditions given by the doctors in evidence made it plain that spondylosis is a condition of the spine. In the course of the medical evidence questions from the Tribunal were directed to the issue whether the appellant suffered an injury to his back in the bomb blast. It would be extraordinary if the Tribunal then failed to consider that issue in reaching its decision. The discussion of the evidence in the reasons for decision makes it clear this mistake did not occur. The reasons concentrate on whether the injuries suffered by the appellant in the bomb blast included an injury to the back.

2. The next ground of appeal alleges:
   

"(e) The learned Tribunal erred in law in finding that 'as there was no pain, there could have been no major soft tissue trauma either', in the absence of the proposition embodied in that finding namely that the lack of pain necessarily meant that there could not have been any major soft tissue trauma, being put to any expert witness."

It is contended that there was nothing in the material before the Tribunal which justified a finding that an absence of pain necessarily meant that there was no major soft tissue trauma, that is soft tissue injury which was sufficiently serious to constitute a possible cause for the appellant's present conditions. This ground of appeal must also fail as an examination of the oral evidence of Dr Eriksen, upon which the Tribunal understandably concentrated, shows that the necessary relationship between major soft tissue trauma of the kind postulated by Dr Eriksen and pain was the subject of evidence. Dr Eriksen defined what he meant by "major soft tissue trauma" as "something which would give him problems for some months duration just due to the trauma per se". He said that it was his perception that the appellant had suffered soft tissue injury that produced "symptoms for a significant period of time after". Read in context, it is clear that "symptoms" include pain. There were questions asked whether the absence of a complaint of immediate pain could be explained. Dr Eriksen replied:

"... I gather it was a fairly life threatening situation that they probably thought that the worse may have happened and I think that in that stage with a great degree of heightened emotion a lot of adrenalin circulating his body that the specific injury may have been certainly blanketed or abated to a degree and it may not have been later until he may have realized what the problem was. I understand he was injured by the shrapnel wound then too and he did not understand he was injured by the shrapnel wound at that time and only some time later he realized he was injured by the shrapnel wound."

There is also the following exchange with Dr Eriksen:

"Q. Now, if you say that he had a major soft tissue trauma to his spine would he have not experienced severe pain during that period?

A. I think like any soft tissue trauma, the maximum - over the first three to four week, or perhaps one to two months, and then slowly decreases in intensity over that period of time. My perception of Mr Driver was that he was a very well motivated man and I would think that he would probably recover and not make much of a symptom which may be of more significance to some other person.

Q. ... But how could we say then, that he had a major soft tissue trauma without an indication of the extent of pain he had?

A. Well, I am only taking the history as given to me by Mr Driver. I am only a doctor and I am only believing what he told me and he told me - and I have got no reason to disbelieve he did not - that he has had a significant bruising of his lower spine and I am quite able to accept that and quite able to accept, by his description of that, that there was a major trauma to the lower spinal area. I think he might be a little bit confused in that I am saying he has injured his spinal cord of his nerves - I am not saying that, I am really saying he has injured his muscles, his ligaments and the small joints of his lower spine."

The above answers record Dr Eriksen's perception of the symptoms. It is not clear from the evidence how Dr Eriksen gained his perception. The history given to him by the appellant, as recorded by Dr Eriksen in Exhibit A1, does not include complaints of back pain at or around the time of the bomb blast. In his evidence before the Tribunal the appellant said he had no such pain.

1. This leads into the final ground of appeal which contends that the Tribunal erred in law in finding that there was no major soft tissue trauma to the appellant's back as a result of the bomb blast. It is contended that there was no material before the Tribunal upon which the finding could properly be based.

2. In my opinion the challenged finding was the only finding reasonably open on the evidence. The absence of any note in the contemporaneous medical records, and the absence of any complaint, of back pain at the time by the appellant pointed only to this conclusion. More importantly, having regard to the standard of proof under s.120, on the undisputed evidence that the appellant did not suffer back pain in the period following the bomb blast there was no basis in fact on which it could be contended that he had suffered major soft tissue trauma to the back. That finding of fact was in accordance with the appellant's evidence.

3. In my opinion no error of law has been demonstrated, and the appeal must be dismissed.