Graham v Repatriation Commission

[1996] FCA 994

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 94 of 1996
  )
GENERAL DIVISION                  )

BETWEEN:WILLIAM GRAHAM

Applicant

AND:REPATRIATION COMMISSION

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    15 OCTOBER 1996

REASONS FOR JUDGMENT

The applicant, Mr William Graham, appeals against the decision of the Administrative Appeals Tribunal affirming a decision of the respondent Repatriation Commission that solar skin damage with which he suffered was not war-caused within the meaning of s9 of the Veterans Entitlements Act 1986 ("the Act"), or defence-caused within the meaning of s70 of the Act.

The appeal, which is to the Court in its original jurisdiction, is by force of the Administrative Appeals Tribunal Act 1975, an appeal on and thus limited to a question of law.

Mr Graham enlisted in the Air Force in early 1945, shortly after turning 18 years of age.  Prior to his enlistment he had lived in Nambucca Heads where, he said, he had been involved in the usual activities in which young
people engage; including playing football in the winter and surfing and swimming at the beach in the summer.  Mr Graham did his recruit training at Cootamundra in New South Wales, commencing 23 January 1945 for a period of some five weeks.  His training there alternated between the drill square and inside training.  There was also some field training and physical activity.

The initial period of eligible service, which continued until 1 July 1946, covered, in addition to the training at Cootamundra, postings in Melbourne, Adelaide and Bradfield Park in Sydney, where a combination of wireless training, work on the wharves and in demobilisation were undertaken.

According to his evidence, which was accepted by the Tribunal, during this period of service, and a subsequent period also relevant from 7 December 1972 to 21 March 1979, Mr Graham generally had been dressed in either overalls or shorts and shirt with sleeves rolled up and boots on.  The Tribunal found that, on occasions, he would have been wearing a hat, either a felt hat, beret or slouch hat;  on other occasions he would not.  In the later period most of Mr Graham's exposure to the sun would have been during periods when he was working at an airfield in which he would probably have not worn hats.

After the war finished, Mr Graham remained in the Air Force and spent some years in Malaysia between 1966 and 1979 in which period he also went to Thailand and Vietnam.  Other periods of service include time spent by him in New Guinea and Manus Islands, as well as service in Melbourne, Australia.  This last service appears to have been in the period referred to in the Tribunal's reasons as "the second period of service", namely that between 7 December 1972 and 21 March 1979.  The last part of his service during the war was mainly spent indoors but, as he said in his own evidence, he was in and out of doors all the time.

Mr Graham was first diagnosed with skin damage in the early 1970s and thereafter he used skin creams, no doubt in an endeavour to give himself some protection.  It is not in dispute that he now suffers from actinic skin damage, that is to say, he suffers from what is popularly referred to as "skin cancers".  Expert evidence was given in the Tribunal by two specialist dermatologists, Dr Florance and Dr Lobel.  Dr Florance, who gave evidence for Mr Graham, had been a consultant dermatologist to the Director-General of Naval Health Services in the Royal Australian Navy from 1962 until 1994.  Dr Lobel had no service association but had an impressive list of hospital appointments which he had undertaken as well as having practiced in private practice and, also published extensively in the area.  There was no
question that both of these gentlemen were expert in their field.

It was common ground between Dr Florance and Dr Lobel, that sun cancers arose from the cumulative effect of exposure to ultra violet radiation over a period of time.  Dr Florance was of the view that Mr Graham's condition was partly connected to the relevant war service.  He expressed the view that the training at Cootamundra was responsible to the extent of ten per cent of the total skin damage that Mr Graham had received over the years.  He said that the period of service of approximately six years from 1972 to 1979, in his view, contributed less to the skin damage, although it probably accounted for five per cent of it.

Dr Florance said, and I would not have thought Dr Lobel would have disputed this, that the damage had been done before the second period of service.  Dr Florance placed some emphasis upon the amount of ultra violet light absorbed by servicemen on the parade ground, a matter that was subsequently drawn to the attention of Dr Lobel and had not, initially it would seem, been considered by him.

When it was put to Dr Florance that the training at Cootamundra was five weeks (and not, as Dr Florance had originally apparently believed, 18 months) Dr Florance said that that would not make a lot of difference to his opinion. 
         His view is summarised in the following exchange with the Tribunal:

"So you still hold that just five weeks exposure at Cootamundra was sufficient to cause one-tenth of the total damage to his skin from the sun in his lifetime?"

Answer:

"That would be pre-supposing that the rest of his service in Cootamundra he never went out of doors, day or night, daytime at all, whereas I expect he walked around the establishment he was serving in, if he was a clerk he wouldn't be attached to his desk 10 hours a day."

Later, it was suggested to him that the significant period of exposure during the 18 month period was the five weeks in Cootamundra.  To this he replied that that would be the most significant period, but:

"... his service would also contribute to it because as I say he would have been dressed in service dress without a proper hat, with short sleeves almost all of the time, and except for the mid-winter months in Victoria he would have been receiving ultra violet light applied to his skin whenever he went out of doors."

He said that he had read Dr Lobel's reports but disagreed with them.

When it was put to Dr Florance that, in the period at Cootamundra if Mr Graham had worn a slouch hat that might have made a difference, he agreed that if Mr Graham had worn a slouch hat it would have reduced his exposure to sunlight considerably and offered the view that the reduction would be down to five per cent.

Dr Lobel, in his written report of 21 July 1995, wrote:

"The question therefore remains as to whether the period of pre-training in Cootamundra contributed to the quite severe elastosis of the back and sides of the neck, the forearms and hands and the moderate elastosis on the face.  Although there must have been some contribution to the sun damage carried out during the summer months of that period of eligibility to the forearms (short sleeved shirts were worn), neck and face, the contribution compared to a lifetime (68 years) living in Australia by 1½ years (and approximately half of which was summer, and only about half of the time being spent out of doors must have been quite minimal.

Therefore, I do not believe that the outdoor exposure during the eligible periods contributed materially to the degree of actinic damage present now, although all sun exposure is cumulative and some minimal contribution would have been produced during the periods of eligibility."

In response to a request to clarify his written position, on 28 September 1995 Dr Lobel wrote, inter alia:

"Your letter requests me to clarify whether this minimal contribution is akin to saying `negligible' or `fanciful' or
`so tenuous as to preclude consideration'.  The contribution is certainly not fanciful but would be negligible when compared to a lifetime of living in Australia; i.e. I believe that the contribution to the current level of skin damage obtained through service 1945-1946 represents a negligible additional exposure resulting from this service."

Dr Lobel maintained this position in his oral evidence.  He said it was impossible to put a percentage figure on the contribution which a particular period of service in this case played in Mr Graham's skin condition.  He accepted that Mr Graham's teenage years were the period when most of the skin damage had been done.  The further exposure during the remaining period of eligible service would, Dr Lobel felt, not have contributed to the condition.

With regard to the particular period of service at Cootamundra, Dr Lobel in his evidence said in response to a question from the Tribunal to tell it in his own words how he would assess the contribution of that five-week period as compared to Dr Florance's assessment, said:

"First of all, there may be a significant amount of exposure on parade grounds and so forth.  I mean my opinion at five weeks of partly indoor, partly outdoor would have to be minimal amount.  We are talking about essentially the contribution to a total amount of sun damage until 1970.

So your opinion is? --- My opinion would be if one takes in five weeks of partly indoor, partly outdoor, that the contribution would have to be called
minimal rather than material, as opposed to material."

Later in the transcript he again repeated his view when his attention had been drawn to Dr Florance's opinion about the effect of parade grounds, that the contribution of the five week period was minimal.  The general explanation for Dr Lobel's view extrapolated over both periods of service that the effect was minimal is explained by him in the following words:

"The reason I felt that Mr Graham's exposure was on the scale of minimal versus material was minimal because it was a short period of time of partly indoor/ partly outdoor activity and therefore, on the scale of the amount of sun damage that was present - and there was unquestionably some damage present - I thought that that amount was a minimal contribution."

He then indicated his agreement with his initial view that the exposure was "negligible".

So the Tribunal was faced with a clear conflict between two expert witnesses.  It resolved that conflict by preferring the evidence of Dr Lobel to that of Dr Florance.  Accordingly, the Tribunal found:

"... that there was a contribution to the applicant's skin disease as a consequence of his periods of eligible service.  That contribution arises from his exposure to ultraviolet radiation during his periods
of eligible service.  However, the Tribunal is satisfied that such contribution was de minimus in that it was negligible on the development of the applicant's skin damage."

Counsel for the applicant submitted that it was not open to the Tribunal on the evidence before it to conclude that the contribution of the relevant period of service to Mr Graham's skin condition was de minimus.  It is said that that is not really what Dr Lobel said.  Counsel conceded, as indeed she had to, that provided the Tribunal found in accordance with Dr Lobel's evidence, then it would be open to the Tribunal to find in the way that Dr Lobel had indicated.

I was taken to a dictionary definition of the words "de minimus" in support of the submission that in essence the evidence of Dr Lobel had revealed a higher level of contribution to Mr Graham's skin condition than the Tribunal had allowed.  There is a danger I think in seeking to analyse words such as de minimus in the present connection.

The Full Court of this Court in Repatriation Commission v Law (1980) 31 ALR 140 considered the words "arising out of" in the context of ss101(1)(a) and (b) of the Repatriation Act 1920 (Cth) saying (at 150):

"It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be `immediate', `direct', or `proximate' or
by saying it connotes a `real', `sole' or `dominant' cause.

... The expression `arisen out of' is satisfied if some less proximate causal rlationship [sic] is established.  Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description `arising out of'."

Likewise, in considering the expression "is attributable to", the Court spoke of a causal relationship saying (at 151):

"It seems clear that the expression `attributable to' in each case involves an element of causation.  The cause need not be the sole or dominant cause: it is sufficient to show `attributability' if the cause is one of a number of causes provided it is a contributing cause."

Here the Tribunal, as is clear from its reasons, used the words "de minimus" in the context of negligible contribution.  Indeed that is what the Tribunal in fact says.  That is precisely in accordance with the evidence of Dr Lobel, evidence from which he did not waiver between his written report and his oral testimony.  It was open to the Tribunal to find in accordance with Dr Lobel's evidence, and this it did.  It is not open to Mr Graham to challenge these findings.  It may very well be that the finding is a harsh one, but findings of fact are the provence of the Tribunal, not the Court.

I was referred to a decision of a Full Court of this Court in Repatriation Commission v Hawkins (1993) 18 AAR 93 in support of the proposition that the legislation with which we are concerned is beneficial legislation and it should thus be construed benevolently. That is no doubt true, but it does not follow that a tribunal's decision based upon the evidence of a witness can be set aside because its decision may seem to some to be harsh. An appeal to this Court can only be brought on the basis that there is some question of law. While no doubt a question of law would arise if it could be shown that the Tribunal's finding was not supported by the evidence before it, that is not the present case. The real complaint that Mr Graham has is that the Tribunal accepted the evidence of Dr Lobel adverse to his case, rather than the evidence of Dr Florance which was favourable to that case. That, however, does not involve a question of law.

In the result, the Court lacks jurisdiction to hear the appeal and must accordingly dismiss the application.

The applicant must pay the respondent's costs.

I certify that this and the
preceding ten (10) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date:  20 November 1996

Counsel and Solicitors      J Mundey instructed by the

for Applicant:              Legal Aid Commission

Counsel and Solicitors      D Ryan instructed by the

for Respondent:             Australian Government Solicitor

Date of Hearing:            15 October 1996

Date Judgment Delivered:         15 October 1996