Eastwood and Repatriation Commission
[2003] AATA 324
•8 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 324
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1456
VETERANS' APPEALS DIVISION ) Re ROSAMOND ELIZABETH EASTWOOD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Assoc. Professor J. Maynard, MemberDate8 April 2003
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (Sgd) Joan Dwyer
Senior Member
VETERANS’ ENTITLEMENTS – whether death war-caused – causes of death shown as idiopathic pulmonary fibrosis and chronic lymphocytic leukemia – whether a reasonable hypothesis that death was due to a drug induced pulmonary fibrosis condition – appropriate standard of proof for issue whether death war-caused – whether material raises or points to a hypothesis rather than simply leaving it open as a possibility – decision affirmed
PRACTICE AND PROCEDURE – inability to have expert witnesses give concurrent evidence – one expert produced relevant journal abstract and letter and article – other expert on telephone – relevant material had to be faxed for his consideration
Veterans' Entitlements Act 1986 8, 120, 120A
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Budworth (2001) 66 ALD 285 [2001] FCA 1421
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Bushell v Repatriation Commission (1992) 109 ALR 30
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Bey (1997) 149 ALR 721
REASONS FOR DECISION
8 April 2003 Mrs Joan Dwyer, Senior Member
Assoc. Professor J. Maynard, Member1. This is an application under s 175 of the Veterans' Entitlements Act 1986 (“the Act”) for review of a decision of the Repatriation Commission made 17 October 2000 and affirmed by the Veterans’ Review Board (“VRB”) on 28 September 2001, that the death of Arthur Eastwood was not war-caused.
2. At the hearing Mr De Marchi, a solicitor, appeared for Mrs Eastwood. Mr Purcell of Counsel appeared for the Repatriation Commission. Mr De Marchi called Mrs Eastwood, who gave evidence by telephone, and also Dr Collins, a forensic pathologist. The respondent called Professor Cade, Director of Intensive Care, Royal Melbourne Hospital, who also gave evidence by telephone. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing. They included voluminous medical records relating to Mr Eastwood.
3. The Tribunal attempted to have Professor Cade listen in to the evidence of Dr Collins, and intended to also have Dr Collins present while Professor Cade was giving his evidence.. However due to difficulties in co-ordinating the times, and to the fact that Dr Collins relied on articles he produced during his evidence, this proved impractical. The articles were faxed to Professor Cade but he required time to consider them.
4. Mr Eastwood was born on 9 September 1916 and died on 29 March 2000 aged 83. He served with the Royal Australian Air Force from 17 December 1943 to 6 May 1946. He served in New Guinea and the South West Pacific area from 14 October 1944 to 2 January 1946. His service is operational service as that term is defined in s 6 of the Act.
5. Mr Eastwood had the following accepted war-caused conditions:
Osteoarthritis of the Cervical Spine
Lumbar Spondylosis
Duodenal Ulcer
Spondylosis of the Thoracic Spine
6. The causes of death as stated in the death certificate (Tdocs p20) are:
Idiopathic Pulmonary Fibrosis: 8 months
Chronic Lymphocytic Leukemia: 10 years
7. Section 8 of the Act provides the circumstances in which a death shall be taken to have been war-caused. So far as relevant it provides:
(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)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
8. As Mr Eastwood had operational service the relevant standard of proof is that set out in s 120(1) and (3) of the Act. They provide as follows:
120 Standard of proof
(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.
Note: This subsection is affected by section 120A.
. . .
(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.
Note: This subsection is affected by section 120A.
9. Section 120 is affected by s 120A which so far as relevant provides as follows:
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
. . .
. . .
(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) or (11); or …..
that upholds the hypothesis.
10. There are relevant Statements of Principles (“SoPs”) for Idiopathic Pulmonary Fibrosis and Chronic Lymphocytic Leukemia. It was agreed that the relevant SoPs are Instrument No. 15 of 1998 for Idiopathic Fibrosing Alveolitis and Instrument No. 67 of 2001 for Chronic Lymphoid Leukemia.
11. The Full Court of the Federal Court, in Repatriation Commission v Deledio (1998) 49 ALD 193 at p206, has clearly explained the four step process to be adopted in applying s 120(1) and (3) of the Act:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). [If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail].
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[Parenthesis added in step 2 is explained later in these reasons, see para 38]
THE MEDICAL EVIDENCE
12. There was no evidence as to the causes of Chronic Lymphoid Leukemia and no attempt was made to raise a reasonable hypothesis in respect of that disease. The medical evidence was concerned with Idiopathic Pulmonary Fibrosis. There was no dispute on the medical evidence that Idiopathic Fibrosing Alveolitis is a synonym for Idiopathic Pulmonary Fibrosis. There is only one factor recognised in clause 5 of SoP Instrument No. 15 of 1998 as raising a reasonable hypothesis. Clause 5(a) provides:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting idiopathic fibrosing alveolitis or death from idiopathic fibrosing alveolitis with the circumstances of a person’s relevant service is:
(a) inability to obtain appropriate clinical management for idiopathic fibrosing alveolitis.
There was no evidence of any inability to obtain appropriate clinical management as required by factor 5(a) of SoP Instrument No. 15 of 1998.
13. The hypothesis put on behalf of the applicant relied on the evidence of Dr Collins that the correct diagnosis of the fibrosis condition shown as a cause of Mr Eastwood’s death should be Pulmonary Fibrosis rather than Idiopathic Pulmonary Fibrosis. The point of that distinction was to avoid the need for the reasonableness of the hypothesis to be tested by whether it fits within the template in the SoP for Idiopathic Fibrosing Alveolitis.
14. The hypothesis relied on by the applicant is set out in Dr Collins’ report of 14 June 2002 (A1). So far as relevant, it reads as follows:
1. I agree that in general terms the major underlying pathological process which caused the death of the late veteran was a disease condition involving the parenchyma (tissues) of the lungs. The clinical signs, symptoms and results of pathological/X-ray investigations, as elicited and documented by Dr. Gary Braun, Thoracic Physician, in his various letters to Dr. John Dickman, such as those dated 3rd December, 1999 and 4th January, 2000 are entirely consistent with such a process.
However, in my view, the aetiology of the presumed pulmonary fibrosis has not been established with any degree of certainty, but rather labelled “idiopathic,” which literally means unknown, by a process of elimination which was less than exhaustive because, in all probability, of the late Mr. Eastwood’s parlous medical status during the terminal months of his life.
2. Disease processes affecting the parenchyma of the lung encompass a wide range of conditions, which have been given the all-embracing term of “interstitial lung diseases.” The relevant pathology is located in the alveoli, alveolar epithelium, capillaries and the spaces between these structures, as well as the lymphatic tissues and perivascular areas. They are a heterogeneous group of conditions, but which are relatively conveniently classified together, because of a similarity in their presenting symptoms, pathological/X-ray findings and physiological abnormalities. However, it does exclude chronic obstructive airways disease and conditions caused by known infective agents. The interstitial lung diseases have, in the past, been difficult to appropriately classify, because there are a multitude of conditions which are characterized by diffuse damage to the lung parenchyma, either as the primary pathological process or as a significant part of a multi-organ condition, such as may be produced in the group of connective tissue diseases. These lung diseases are non-malignant and the precise mechanism between the initiating injurious agent and the resultant fibrosis involving the lungs is either poorly understood or not known.
There is a variety of diagnostic procedures used in the diagnosis of this group of diseases, such as a detailed history, chest X-ray/computerized tomography and pulmonary function tests, with the definitive (usually) investigation being histological examination of an appropriately located lung biopsy.
3. In this particular case, Dr. Braun has excluded a number of known aetiological agents however, as I presently understand the available information, a biopsy procedure was not performed and, because no obvious causative process was identified, the late veteran’s aetiology was, not unreasonably, placed in the idiopathic category.
It is important to note that, during the terminal years of the late Mr. Eastwood’s life, he had been prescribed at least three drugs namely voltaren, omeprazole (losec) and aropax, in each of which interstitial lung disease has been implicated as an adverse side effect, this being particularly documented with voltaren and aropax.
It would have to be conceded in any population prescribed such a drug, that this particular complication is rare, nevertheless it has to be considered and excluded/included as a possible aetiology, in each case of interstitial lung disease.
4. In my opinion, it is not appropriate to indicate that the late Mr. Eastwood suffered from idiopathic pulmonary fibrosis, indeed he may well have, but it could not be excluded with any degree of certainty, that it was as a consequence of drug therapy.
I note that the arthritic conditions involving the spine and the duodenal ulcer were war accepted disabilities, for which the late Mr. Eastwood had been prescribed voltaren and losec respectively and, if the hypothesis were accepted that his fatal pulmonary disease was possibly as a consequence of drug therapy, rather than “idiopathic” in type, then there is a sound and reasonable pathological causal link between his war service and death. (emphasis added)
. .. .
15. It was not disputed that the medical records showed that Mr Eastwood had been prescribed Voltaren for his war-caused osteoarthritis of the cervical spine and lumbar spondylosis and spondylosis of the thoracic spine, and Losec for his war-caused duodenal ulcer. Thus the hypothesis relied on by Mr De Marchi was that death arose out of or was attributable to eligible war service, because it arose out of or was attributable to diseases which have been accepted as war-caused. As the evidence is that Aropax is only prescribed for psychiatric conditions, and as Mr Eastwood had no psychiatric condition accepted as war-caused, we will not consider Aropax further in these reasons, even though Dr Dickman’s notes (R3 p23) do indicate a prescription of Aropax on 7 July 1993.
16. In this matter both Dr Collins and Professor Cade agreed that Mr Eastwood’s death certificate had correctly shown that pulmonary fibrosis was a cause of death. They agreed that the cause of the pulmonary fibrosis was unknown and that “idopathic” simply means “unknown”.. The doctor who completed the death certificate described the pulmonary fibrosis as “idiopathic pulmonary fibrosis”.
17. Professor Cade in his report of 23 July 2002 (R2), expressed the opinion that the pulmonary fibrosis was correctly diagnosed as Idiopathic Pulmonary Fibrosis. He wrote:
As Dr Collins points out, the lung condition referred to as pulmonary fibrosis (i.e. one of the interstitial lung diseases) can be caused by a variety of insults. The end-result is generally similar, regardless of aetiology.
When a diagnosis of idiopathic pulmonary fibrosis is made by a specialist, it implies that no known cause has been identified. In particular, systemic diseases and specific inflammatory processes are sought. In the present case, none of these were identified, and in such a situation, the label ‘idiopathic’ is normally (& correctly) applied. Moreover, in the present case, a high level of the serological marker ANA was found, and this is typical of idiopathic pulmonary fibrosis since it is considered to be an autoimmune disease.
As indicated above, the interstitial lung disease in this patient cannot be of the type suggested by Dr Collins, because the three drugs he listed as potential causes do not cause this type of respiratory complication.
18. The only evidence to the effect that idiopathic pulmonary fibrosis was not the correct diagnosis was that of Dr Collins. In support of his argument that the pulmonary fibrosis, which was a cause of death, could perhaps be a consequence of drug therapy, he produced certain articles which were received in evidence. Dr Collins seemed to understand that his suggested possible cause of death, as drug induced pulmonary fibrosis, would be accepted by the Tribunal, unless it could be “excluded with any degree of certainty” (A1 para 4).
19. Dr Collins acknowledged that no clear connection has been established with Voltaren or Losec and Pulmonary Fibrosis. But he said there are cases in which it is considered that those drugs may have caused Pulmonary Fibrosis.
20. As to the drug, Losec, Dr Collins acknowledged that there are no published reports of Losec being suspected as having been implicated in the development of Pulmonary Fibrosis. However, he produced a letter addressed to him from AstraZenica Pty Ltd, the maker of Losec, dated 12 June 2002 (A2) which reads as follows:
Thank you for your enquiry requesting information on the incidence of pulmonary fibrosis in patients on Losec. I understand your elderly deceased patient’s widow has applied for a war widow’s pension and you are trying to eliminate possible causes of death for Veteran Affairs.
As discussed on the phone yesterday, pulmonary fibrosis is not a listed as a side effect of Losec.
After reviewing our worldwide safety update of oral Losec therapy, (April 1988-April 2001), based on 549.9 million patient treatment courses, I was able to identify 10 reports of pulmonary fibrosis reported as possible side effects of Losec. The causality of these reports has not been established.
. . .
21. Dr Collins had also written to Novartis, the drug company which produces Voltaren, (diclofenac sodium) and in a letter of 13 June 2002, Novartis replied to him as follows (A2):
. . .
A search of the Novartis database, Novabase, retrieved three articles on pneumonitis which are attached for your information.
. . .
The three attached articles were:
(A)A short abstract headed A Case of Diclofenac (Voltaren) ‑ induced Interstitial Pneumonitis, Suzuki, Shiota, Hori, et al dated 21 September 2000.
(B)A published letter accepted 19 November 1997 headed Methotrexate pneumonitis precipiated by NSAIDs – can fish oil help? by Thulasimani, and Ramaswamy,
(C)Diclofenac (Voltaren)‑Induced Eosinophilic Pneumonitis, Case Report and Review of the Literature, Hany Khalil, MD; Eduardo Molinary, MD; James K Stoller, MD published in Archives of Internal Medicine Vol 153, July 26 1993.
22. The first abstract (A), referred to the case of a 27 year old man who had been prescribed “diclofenac and several other drugs for a few days because of a common cold”. He developed respiratory symptoms and was hospitalised. Drug induced interstitial pneumonitis was suspected and there was a positive test to diclofenac on peripheral lymphocytes. It is not clear from the photocopy where the abstract was published. The authors are from the Division of Respiratory Medicine, Showa General Hospital, Tokyo.
23. The second article (B) is a letter from Thulasimani and Ramaswamy. Once again it is not clear where it was published. It refers to an article describing one case of methotrexate pneumonitis presumably precipitated by concomitant use of diclofenac. It advances the hypothesis that non-steroidal anti-inflammatory drugs co-administered with methotrexate, could lead to fatal aggravation of methotrexate toxicity. There is no evidence of the administration of methotrexate in this matter. Therefore that article is not relevant.
24. Article (C) Diclofenac (Voltaren)‑Induced Eosinophilic Pneumonitis, is a Case Report concerning Eosinophilic Alveolitis in a 67-year-old man taking Voltaren. It also contains a review of the literature. The article refers to the onset of pulmononary abnormalities in a 67 year old man after beginning diclofenac [Voltaren] therapy. The authors state that the history implicates Voltaren “which, to our knowledge, has not been described previously to cause eosinophilic pneumonitis” (emphasis added). They recommend that “clinicians should include diclofenac on the list of medications implicated in EP”.
25. Professor Cade in his report of 23 July 2002 (R2), wrote:
Diclofenac has been reported in a few cases (about 10 cases) worldwide to have caused respiratory complications in the form of either pulmonary infiltrates with eosinophilia or bronchospasm. These rare pulmonary complications are entirely different from the lung condition suffered by this patient. Moreover, he did not have the former of these complications, as he had no eosinophilia, and the latter complication (if it occurred) would have been indistinguishable from his existing mild asthma.
26. Thus there may have been two, as stated in the articles produced by Dr Collins, or perhaps even ten reported suspected cases of a link between Voltaren and respiratory complications, however the only reported pulmonary complications are pulmonary infiltrates with eosinphilia or bronchospasm. Professor Cade said that as Mr Eastwood was not reported to have had pulmonary infiltrates with eosinophilia, those cases are not relevant.
27. Dr Collins had the opportunity to peruse approximately 1000 pages of Mr Eastwood’s medical records prior to writing his report. He agreed that there was no evidence of pulmonary infiltrates with eosinophilia in any of the records. Dr Collins suggested that that could be because the condition was not detected until it had progressed to the terminal fibrosis condition which was referred to on the death certificate.
28. Dr Collins said that pulmonary fibrosis is an end stage pathological condition of a spectrum of changes which occur in lungs when lung parenchyma is injured by whatever agent. Pneumonitis or pulmonary infiltrates is a stage in that process. In this case the agent could be drugs, but it could also be other causes. Dr Collins said that there is a low, one in fifty million chance, of the pulmonary fibrosis being related to Voltaren or Losec.
29. Professor Cade said that Dr Collins’ suggestion that the pulmonary infiltrates might not have been detected before the stage of terminal fibrosis was untenable, because it would mean that Mr Eastwood was the first known case, where a drug related pulmonary fibrosis had developed without the signs noticed in the previously reported cases, of pulmonary infiltrates with eosinophilia.
30. Further Professor Cade pointed out that in each of the two reported cases as to which there were case histories before the Tribunal, symptoms of dry cough, wheeze and, in one case, rash were reported very shortly after treatment with Voltaren had commenced. That occurred after a matter of days, in the case of the 27 year old man, and after six weeks of treatment in the case of the 67 year old man. The evidence establishes that Voltaren was first prescribed for Mr Eastwood in 1986 and pulmonary fibrosis was not diagnosed until after Mr Eastwood suffered pneumonia in 1996. There is no mention at all of any earlier relevant symptoms even though there were chest X-rays in the records of Dr Dickman (R3 at pp203, 8 July 1992, and 214, 20 December 1993).
THE LAW
31. The question as to diagnosis of a disease is to be decided on the reasonable satisfaction standard of proof. That was explained by the Full Court of the Federal Court in Repatriation Commission v Budworth (2001) 66 ALD 285 [2001] FCA 1421 at paras 14 and 15. The Full Court said:
[14] The issue before the Full Court in Cooke [Repatriation Commission v Cooke (1998) 160 ALR 17] was whether the AAT had applied the correct standard of proof in determining whether a veteran suffered from the disease of "anxiety state". The AAT had applied the "reverse criminal" standard, concluding that it should be satisfied as to the existence of the claimed disease, unless satisfied beyond reasonable doubt that there was no sufficient ground for finding that the claimed disease existed. After careful examination of s 120 (1) of the Act the Full Court held at ALR 21 that:
The subject matter and purpose of the subsection are confined to the standard of proof of war-causation.
And at ALR 21 the Full Court further held that the reverse criminal standard of proof applied to the question whether the disease was war-caused, and the civil standard of proof referred to in s 120 (4) of the Act applied to the question whether or not there was a disease.
[15] Counsel for Mr Budworth argued that Cooke was incorrectly decided or clearly wrong and invited us not to follow it. We decline to take that course because we find the reasoning in Cooke persuasive. In our view, s 120 (1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the commission, or the AAT on review, is required to determine whether a veteran is suffering from the claimed injury or disease, that issue must be decided to the "reasonable satisfaction" of the decision-maker in accordance with s 120 (4) of the Act. (emphasis added)
32. Mr Purcell submitted that the appropriate test to apply in regard to ascertaining the cause of death was the reasonable satisfaction test as for the diagnosis of a disease. He referred to Repatriation Commission v Cooke (1998) 160 ALR 17 where the Full Court of the Federal Court said at pp20-21:
In our opinion, the appeal should be allowed. We think that it is quite clear that the issue whether a disease exists is to be decided to the reasonable satisfaction of the Commission. In other words, s 120 (1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120 (1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120 (3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service. That standard applies only to a “determination” that the disease is war-caused. This can be seen by examining the precise subject matter and purpose of s 120 (1) as revealed in the language in which it is expressed. The subsection speaks of:
• “the” incapacity from injury or disease of a veteran;
• “the” death of a veteran
and requires the Commission to determine that
• “the” injury was a war-caused injury; or
• “the” disease was a war-caused disease; or
• “the” death was war-caused
unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The subject matter and purpose of the subsection are confined to the standard of proof of war-causation.
The authorities show that where there is an issue about such causation, one turns first to s 120 (3): Bushell [(1992) 175 CLR 408] (at CLR 415) and Byrnes v Repatriation Commission (1993) 177 CLR 564; at 571; 116 ALR 210. The Commission has to decide whether all or some of the facts raised by the material before it give rise to a reasonable hypothesis connecting the veteran’s disease with war service. Proof of facts is not in issue at that point. It is important to appreciate that the hypothesis is whether the material raises “a reasonable hypothesis connecting the injury … with the circumstances of the particular service rendered”. Only if there is such a hypothesis does s 120 (1) come into play. At that stage 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.
In either of those circumstances the hypothesis is thus disproved beyond reasonable doubt.
33. Mr Purcell acknowledged that the Full Court distinguished the question whether a disease is war-caused from the question whether a death is war-caused. He said he found it difficult to analyse the Full Court’s comments on the issue. The Full Court said at pp21-23:
The legislative history is conveniently contained in the reasons for judgment of a Full Court of this court in East v Repatriation Commission (1987) 16 FCR 517 at 518-27; 74 ALR 518. Mr P J Hanks, counsel for the appellant, submitted (and it is well accepted) that parliament had reacted to the High Court’s decision in Repatriation Commission v O’Brien (1985) 155 CLR 422; 58 ALR 119 by introducing the concept of a reasonable hypothesis where the question was whether an injury, disease or death was war-caused. Parliament had, so he submitted, also introduced s 120 (4) to deal with every other question. Mr H N H Christie, counsel for the respondent, contended that the legislative history clearly indicated to the contrary. He pointed out that, when the reverse criminal standard of proof was introduced in 1977 by amendment to s 47 (2) (a provision which may be regarded as a predecessor of s 120 of the Act), all matters were to be dealt with by that standard; that is, all matters in relation to a claim for a pension for disability based on war service. Mr Christie submitted that there was no suggestion at the time of the 1985 amendments (the amendments in response to O’Brien) that the reverse criminal standard of proof was being removed in relation to the issue of the existence of a disease. The hypothesis was simply introduced in order to deal with the connection between the disease and war service. He relied upon a paragraph in the minister’s second reading speech which was in these terms:
Subclause 119 (1) will require a favourable determination to be made in relation to a pension claim unless the Repatriation Commission is satisfied beyond reasonable doubt that there is no sufficient ground for doing so.
But it is quite clear from the very next sentence in the minister’s speech that he was dealing with the matter of a service connection to a veteran’s death or incapacity. Mr Christie suggested that there would be anomalies. He gave some examples. One was that a veteran might make a claim for a depressive disorder which was disputed. If, before the hearing of that dispute, the veteran were found dead in circumstances where suicide was an open question, there would be a separate standard of proof to be applied to the veteran’s claim from that which would be applied to the widow’s claim. The Commission or the tribunal would make its decision as to whether a depressive disorder existed, to its reasonable satisfaction. But the question whether a depressive order existed, to meet the hypothesis of death by suicide as a result of the depressive disorder as a result of war service, would be governed by a combination of s 120 (3) and (1).
In our view there are two answers to those contentions. First, the language of s 120 (1) and (3) is so clear as to not raise any doubt on the point. Secondly, any suggested illogicality disappears when one focuses on the task in hand. In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily available on that issue (in the main medical evidence, one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply, as s 120 (4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question. Furthermore, one should not overlook the ameliorative effects of s 120 (5) and (6) in relation to difficulties in establishing facts. (Emphasis added)
34. In our view it is clear that the Full Court in that passage was explaining that the reasonable satisfaction test is to be applied to the question whether a disease exists, but where there is operational service, the reasonable hypothesis test applies to the question whether the disease, once found to exist, is war-caused. However, the Full Court explained that in a widow’s claim, where the question is whether a death is war-caused, that issue must also be decided on the reasonable hypothesis standard of proof. Thus the question is whether Dr Collin’s evidence raises a reasonable hypothesis connecting Mr Eastwood’s death with the circumstances of his service.
35. In answering that question, we must apply the steps laid down by the Full Court in Deledio, as set out in paragraph 11 of these reasons.
36. As to step 1, Mr De Marchi submitted that the evidence pointed to a hypothesis connecting Mr Eastwood’s death with the circumstances of his service. He submitted that the evidence of Dr Collins raised the hypothesis that the death was due to drug induced pulmonary fibrosis resulting from the taking of Voltaren or Losec, both of which were prescribed for war-caused diseases. We accept that the evidence of Dr Collins does point to a hypothesis connecting Mr Eastwood’s death with the circumstances of his service.
37. Step 2 requires us to decide whether there is in force a SoP in respect of that hypothesis. In so far as the hypothesis relies on the death resulting from drug induced pulmonary fibrosis, there is no applicable SoP.
38. The Full Court in Deledio at the end of Step 2, said:
If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
In Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at p698, para 26, Weinberg J accepted, as was agreed by the parties, that the last sentence in para 2 of the relevant passage from the reasons of the Full Court in Deledio was inaccurate in one respect. His Honour stated:
Mere inaction on the part of the authority does no more than render s 120A of the VE Act inapplicable. The hypothesis will then be considered on its merits in accordance with the principles laid down in Bushell v Repatriation Commission [(1992) 109 ALR 30] and Byrnes v Repatriation Commission [(1993) 177 CLR 564].
39. The position is that if there is no relevant SoP, the test of a reasonable hypothesis is to be determined in accordance with the principles set out in East v Repatriation Commission (1987) 74 ALR 518, at 533 and by the High Court in Bushellv Repatriation Commission (1992) 109 ALR 30 and Byrnes v Repatriation Commission (1993) 177 CLR 564
40. The majority in Bushell said at p35:
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature”.. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”.
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 connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion. [emphasis added]
41. Approaching the issue now before the Tribunal, the first question we must ask arises under s 120(3) of the Act. Does the material before the Tribunal raise or point to a reasonable hypothesis linking Mr Eastwood’s death with his service? The hypothesis relied on is that the cause of death was drug induced pulmonary fibrosis related to drugs prescribed for war-caused diseases.
42. We have set out at paragraphs 12 to 30, the medical evidence, including the material on which Dr Collins based his hypothesis. The High Court said that in performing functions under s 120(3) of the Act it is appropriate to have regard to the medical or scientific material which opposes the veteran’s claim “for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the . . . death and service”.
43. Before doing so we refer to the fact that, as set out at paragraph 28 of these reasons, Dr Collins himself did not advance the hypothesis as being raised or “pointed to” by the material. All he said was that it was possible, and could not be excluded. He said that there was a low, “one in fifty million” chance of the pulmonary fibrosis being related to Voltaren or Losec.
44. Professor Cade did not accept that the medical and scientific material before the Tribunal raised a reasonable hypothesis. He wrote at paragraph 8 of his second report (R2):
I do not believe that a reasonable hypothesis can be made linking drugs prescribed for his service-related conditions to the causation of pulmonary fibrosis and thus to death in this patient. This is because examination of the international literature (summarized below) fails to provide even rare and isolated case reports of pulmonary fibrosis associated with the drugs in question. This would seem to me effectively to render any such hypothesis untenable.
45. The evidence as to Losec as set out above was that pulmonary fibrosis is not listed as a side effect of Losec. Further the material before the Tribunal was that “based on 549.9 million patient treatment courses” a researcher “was able to identify 10 reports of pulmonary fibrosis reported as possible side effects of Losec. The causality of these reports has not been established” (A2, letter from AstraZenca Information Service).
46. There may be a one in fifty million chance of pulmonary fibrosis being Losec related. Professor Cade said that in the study of the aetiology of disease it is generally accepted that side effects are graded as “common” if there is a frequency of one in a 100, “uncommon” if the frequency is one in 1000, “rare” if the frequency is one in 40,000 and “very rare” if it is one in a million. He said a frequency of one in 50 million would not be considered relevant.
47. As to the material relating to the drug Voltaren, Professor Cade did not dispute that there are reports of rare cases of pulmonary infiltrates with eosinophilia associated with Voltaren. However, he said that there is no evidence of pulmonary infiltrates with eosinophilia in the detailed history contained in the medical records relating to Mr Eastwood.
48. In regard to the suggestion by Dr Collins that there could have been pulmonary infiltrates with eosinophilia which remained unnoticed, Professor Cade said that was not possible. He explained that it is an allergic reaction associated with eosinophilia in the blood which tends to occur soon after the drug therapy is started, and which stops if the drug is ceased. He said it is rarely fatal and it is inconceivable that a specialist physician would not have noticed the condition, if Mr Eastwood had presented with the symptoms of pulmonary infiltrates with eosinophilia.
49. The medical records before us show (Tdocs p24) that in December 1999, when Mr Eastwood was diagnosed by Dr Braun with interstitial lung disease, he reported he had had dyspnoea and cough since an episode of pneumonia in 1996. He had been prescribed Voltaren since 1986 (R3 p2) without reporting any problem with respiratory symptoms during the years 1986 to 1996.
50. On the material before the Tribunal it appears that there has never been a case of a respiratory allergic reaction to Voltaren, which is not noticed shortly after commencing treatment with Voltaren. The evidence is that the allergic reaction includes cough and shortness of breath and rash. There is no record of those symptoms being reported by Mr Eastwood before 1996. In the two cases described in the evidence before us, the symptoms started within days or weeks of commencement of Voltaren.
51. Mr Purcell referred the Tribunal to the decision of a Full Bench of the Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721. In that matter Northrop, Sundberg, Marshall and Merkel JJ, with whom Nicholson J concurred, said at p724:
The method of applying s 120 (1) and (3) is now well established:
(1) One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran’s eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
(2) The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the “raised facts”) and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.
(3) Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
(4) If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or 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.
Their Honours then reviewed the medical evidence before the Tribunal on which it had concluded, “after consideration of the whole of the evidence”, that it did not raise a reasonable hypothesis connecting the veteran’s disease with the circumstances of his service.
52. The reason why a Full Bench was convened in Bey, was to consider a possible inconsistency between the Full Court decisions of East and Cooke. The issue was whether “matter in the nature of mere possibility” was sufficient to raise a reasonable hypothesis. Their Honours in Bey, at p730, said that the primary judge had been in error in allowing the appeal on the ground that the Tribunal had misconceived its task in saying that a reasonable hypothesis is not raised by “a mere possibility of a connection”. Their Honours, explained at p730:
In our view that course of reasoning ignores the fact that the expression in question is not “hypothesis” but " reasonable hypothesis”.. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker. The reasoning is also inconsistent with what was said by Mason CJ, Deane and McHugh JJ in Bushell (at CLR 414; ALR 34):
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.
It is also inconsistent with what was said by Mason CJ, Gaudron and McHugh JJ in Byrnes (at CLR 569-70; ALR 214):
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.
Any doubt that attends the status of East as a correct exposition of the law relating to s 120 (3) should be dispelled. This court restates the position established by East, Bushell and Byrnes. A “reasonable hypothesis” involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word “reasonable”, is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister’s second reading speech and with authority.
If the two passages in Cooke do depart from East, as read in isolation they appear to do, they are incorrect. Certainly in the present case the primary judge’s understanding and application of the passages was inconsistent with East.
Whether material raises a “reasonable hypothesis” for the purposes of s 120 (3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904. For the reasons it gave, the tribunal was entitled to discard Mr Hadley’s evidence. That left the evidence of Dr Mackay and Dr Hall. Neither put forward material which pointed to the hypothesis advanced by the respondent. Neither went further than to say that the suggested cause of the disease was a possibility. Since the cause of the disease is not known and they were not able to say when it was contracted, they could not put it higher than that. In our view the tribunal was entitled to conclude that in those circumstances the material did not raise a reasonable hypothesis connecting the respondent’s rheumatoid arthritis with his war service. [emphasis added]
53. Applying that reasoning we find that the evidence before us does not “raise” or “point to” a reasonable hypothesis that Mr Eastwood’s death was caused by drug induced pulmonary fibrosis linked with either Losec or Voltaren. There is no material pointing to or supporting the possibility referred to by Dr Collins. Dr Collins did not go further than to say that the suggested drug induced cause of the pulmonary fibrosis was a possibility. He put the chances of that possibility being the case as extremely low. He seemed to believe it was for the respondent to exclude that possibility. That is not so. There is no material before us pointing to or supporting the possibility that the pulmonary fibrosis was drug induced. Thus the material before the Tribunal does not raise a reasonable hypothesis connecting Mr Eastwood’s death with his war service.
54. We have found that the hypothesis raised by the evidence of Dr Collins is not reasonable. It was not contended that there was any reasonable hypothesis whereby death from idiopathic pulmonary fibrosis or chronic lymphoid leukemia could be found to be war-caused.
55. Accordingly the decision under review will be affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member and
Assoc. Professor J. Maynard, MemberSigned: Grace Carney
Personal AssistantDate/s of Hearing 6 December 2002
Date of Decision 8 April 2003
Solicitor for the Applicant Mr D. De Marchi
Counsel for the Respondent Mr G. Purcell
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