Graham v Repatriation Commission - [2002] FCA 792

FEDERAL COURT OF AUSTRALIA
Graham v Repatriation Commission [2002] FCA 792
SOCIAL WELFARE - Veterans Affairs - claim by widow of veteran for pension - entitlement - whether death “war-caused” - reasonable hypothesis - whether hypothesis connecting veteran’s death with war service reasonable - proper approach to application of Statements of Principles to hypothesis - whether claim can succeed when hypothesis falls outside Statement of Principles
Veterans Entitlements Act 1986 (Cth) ss 14, 120, 120A
Administrative Appeals Tribunal Act 1975 (Cth) s 44
McLean v Repatriation Commission [2001] FCA 1505 followed
Byrnes v Repatriation Commission (1993) 177 CLR 564 followed
Repatriation Commission v Deledio (1998) 83 FCR 82 considered
East v Repatriation Commission (1987) 16 FCR 517 considered
Repatriation Commission v Bey (1997) 79 FCR 364 referred to
Bull v Repatriation Commission [2001] FCA 1832 referred to
Calderaro v Secretary, Department of Social Security (1991) 33 FCR 244 considered
MARTHA ELLEN GRAHAM v REPATRIATION COMMISSION
Q 3 OF 2002
DOWSETT J
21 JUNE 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 3 OF 2002

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

MARTHA ELLEN GRAHAM
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

21 JUNE 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 3 OF 2002

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

MARTHA ELLEN GRAHAM
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

DOWSETT J

DATE:

21 JUNE 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT
INTRODUCTION

The present applicant has claimed a pension pursuant to s 14 of the Veterans Entitlements Act 1986 (Cth) (the “Act”), the basis of her claim being the death of her husband (the “veteran”) on 10 October 1978. This claim was rejected and such rejection advised to the applicant by letter dated 30 March 1999. The Administrative Appeals Tribunal (the “AAT”) subsequently affirmed the decision to reject the claim, publishing its reasons for so doing on 6 December 2001. This is an appeal from that decision pursuant to subs 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). The appeal is limited to questions of law.
THE LEGISLATION
Relevant provisions of the Act are as follows.
Subsection 14(1) provided at the relevant time:
Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
Section 120 provides:
(1)Where a claim under Part II for a pension in respect of … the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine … that the death of the veteran was war-caused … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(2) …
(3)In applying subsection (1) … in respect of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Graham v Repatriation Commission

Details

AGLC: Graham v Repatriation Commission [2002] FCA 792
Case: [2002] FCA 792
Decision Date: 21 JUNE 2002

CaseChat Overview and Summary

The case of Graham v Repatriation Commission concerns the validity of a hypothesis linking a veteran's death to his military service. The appeal was brought by the applicant, seeking to establish a connection between the veteran's service and his subsequent death from cancer. The matter was heard and determined by the court, which had to decide whether the hypothesis proposed by the applicant was reasonable and supported by the evidence. The court was required to assess the sufficiency of the evidence provided to substantiate the hypothesis that the veteran's death was caused by a series of medical conditions linked to his service.

The primary legal issue before the court was whether the hypothesis presented by the applicant was reasonable and supported by the evidence. The court considered whether the hypothesis was more than just a possibility and whether the evidence sufficiently pointed towards it. The court referenced previous cases to establish the standard required for a hypothesis to be considered reasonable. The court needed to determine whether the hypothesis was a plausible explanation for the veteran's condition and eventual death based on the available evidence.

The court found that the hypothesis was not supported by the evidence. There was no proof that the veteran had been infected with Helicobacter pylori, nor was there any evidence of peptic ulcer disease. Additionally, the barium meal results did not indicate any abnormalities, and the post-mortem examination did not show a primary cancer site within the stomach. Based on these findings, the court concluded that the hypothesis was unreasonable. Consequently, the appeal was dismissed, and the decision of the Administrative Appeals Tribunal (AAT) was upheld.

The court's final order was to dismiss the appeal, thereby affirming the AAT's decision that the hypothesis linking the veteran's death to his military service was unreasonable and not supported by the evidence. This ruling underscores the necessity for a hypothesis to be more than a mere possibility and to be substantiated by clear and compelling evidence.

Orders

Orders of the court

1. The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

An hypothesis will be reasonable if the material points towards it. It is not sufficient that it be merely open on the material. See East v Repatriation Commission (1987) 16 FCR 517 at 532-3; Repatriation Commission v Bey (1997) 79 FCR 364 at 371-3; and Bull v Repatriation Commission [2001] FCA 1832 at [14] - [20].SUMMARY OF EVIDENCE In view of the passage of time it is not surprising that there is little available detail as to the veteran’s medical condition during his service and thereafter. The applicant gave evidence that he had commenced to smoke and drink heavily during his army service and that these habits continued until his death. She also claimed that following his discharge, and until his death, he suffered regularly from severe stomach pains. He experienced gastro-intestinal bleeding in 1967. The cause is unknown. In January 1977 the veteran sought medical treatment for abdominal pain and ankle-swelling. A secondary carcinoma was located in the neck. His doctor (Dr Dunn) discovered an epigastric mass. He noted that a barium meal had previously been reported as normal and inferred that there was probably a “pancreatic primary”. Dr Milliner refers to a barium meal which appears to have been administered after the 1967 incident (AB 30, par 12). That seen by Dr Dunn in 1978 was presumably more recent. See Exhibit 2. Dr Dunn referred the veteran for further investigation. He was found to be suffering from cancer in the right supra-clavicular region and in the epigastrium. He died on 10 October 1978. Post-mortem examination disclosed wide-spread cancer (to use lay-terms), particularly in the vicinity of the stomach, adrenals, pancreas, liver, kidneys and bowel. I will hereafter use the words “cancer” and “malignancy” with their usual lay meanings as denoting any malignant growth. I will try to be more precise in the use of other medical terms.THE HYPOTHESIS The applicant advanced the following hypothesis as linking the veteran’s death to his army service:(i)The veteran was infected with Helicobacter pylori while serving in the army.(ii)That infection caused him to develop peptic ulcer disease.(iii)The peptic ulcer disease caused a primary cancer site to develop inside the stomach. The primary cancer was probably a gastric lymphoma of mucosal-associated lymphoid tissues (MALT).(iv)The primary gastric MALT lymphoma gave rise to the reticulum cell sarcoma which caused death. It is common ground that Helicobacter pylori infection can cause peptic ulcers and, in due course, gastric MALT lymphoma which is a malignancy located in the stomach. AAT rejected the hypothesis as being unreasonable for the following reasons:1.There was no evidence that the veteran was ever infected with Helicobacter pylori.2.There was no evidence that the veteran ever suffered from peptic ulcer disease. 3.The veteran had a normal barium meal in or about January 1977.4.The post-mortem report showed that there was no primary cancer site inside the veteran’s stomach. THE APPEAL

Decision

Reasons for decision

DOWSETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 3 OF 2002

BETWEEN:	MARTHA ELLEN GRAHAM APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	21 JUNE 2002
WHERE MADE:	BRISBANE

JUDGE:	DOWSETT J
DATE:	21 JUNE 2002
PLACE:	BRISBANE