Henry, E.C Repatriation Commission
[1992] FCA 1047
•21 DECEMBER 1992
Re: ELIZABETH CATHERINE HENRY
And: REPATRIATION COMMISSION
No. G 671 of 1991
FED No. 1047
Number of pages - 12
Administrative Law
(1992) 29 ALD 289
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)
CATCHWORDS
Administrative Law - appeal from Administrative Appeals Tribunal which affirmed decision of Repatriation Commission that death of applicant's husband was not war-caused - whether there was no evidence to support Tribunal's finding - whether Tribunal asked itself the wrong question - inadequate fact-finding to determine basis for Tribunal's conclusion
Veterans' Entitlements Act 1986 ss.5, 6, 120
East v. Repatriation Commission (1987) 16 FCR 517 at 532-3
Webb v. Repatriation Commission (1988) 19 FCR 139 at 141-2
Treloar v. Australian Telecommunications Commission (1990) 26 FCR 316
Repatriation Commission v. Whetton (1991) 31 FCR 513
Repatriation Commission v. Law (1980) 47 FLR 57 at 68; on appeal (1981) 147 CLR 635
Repatriation Commission v. Bendy (1989) 10 AAR 326
Repatriation Commission v. Hughes (1990) 13 AAR 34; (1991) 23 ALD 270
HEARING
SYDNEY, 14 August 1992
#DATE 21:12:1992
Counsel and solicitor : J Hamilton QC and A Hill
for the applicant instructed by Kenneth Harrison
Counsel and solicitor : R Henderson instructed by
for the respondent Australian Government Solicitor
ORDER
1. The decision of the Tribunal is set aside.
2. The matter is remitted to the Tribunal for reconsideration in accordance with the reasons for judgment.
3. The respondent is to pay the applicant's costs.
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
JUDGE1
EINFELD J. The applicant Elizabeth Catherine Henry appeals from alleged errors of law in a decision of the Administrative Appeals Tribunal given ex tempore on 4 October 1991 and confirmed by brief considered reasons on 7 November 1991. Mrs Henry is the widow of Paul Raymond Henry, a former veteran who had performed operational service as a member of the armed forces of Australia, as defined in sections 5 and 6 of the Veterans' Entitlements Act 1986. The late Mr Henry died from carcinoma of the colon on 31 January 1988. The Tribunal affirmed a decision of the respondent Commission that Mr Henry's death was not war-caused and that the applicant was not entitled to a war widow's pension under the Act.
The matter arises for decision under the much litigated section 120 of the Act which relevantly provides:
(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. ...
(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.
In concluding its determination, the Tribunal held (sic):
... when one considers all the material here the opinion of the Tribunal is that there is simply not enough material for it to say that there has been raised a reasonable hypothesis that the applicant's destructive drinking was causally connected to his war service.
The applicant argues that the Tribunal posed the wrong question or reversed the appropriate test of proof, and that it erred as to the nature of a hypothesis or of what is needed to raise a reasonable hypothesis.
As this is now a well-worn legal track to which I can add nothing new to the many judgments which have accumulated, including some in which I have participated, it is only necessary to summarise the law as it now stands:
1. War service does not have to be the sole cause of death; it need only contribute: Repatriation Commission v. Law (1980) 47 FLR 57 at 68; (1981) 147 CLR 635 at 648; Repatriation Commission v. Bendy
(1989) 10 AAR 326 at 324-6; Treloar v. Australian Telecommunications Commission (1990) 26 FCR 316 at 323.
2. A hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran does not have to be established as a fact; it is necessarily a speculation: East v. Repatriation Commission (1987) 16 FCR 517 at 532-3; Webb v. Repatriation Commission (1988) 19 FCR 139 at 141-2; Repatriation Commission v. Whetton (1991) 31 FCR 513 at 515-6.
3. The hypothesis must be "pointed to by the facts" and "possess some degree of acceptability or credibility": East at 533; Webb at 141-2.
4. The hypothesis of causal nexus will often readily arise from the facts. Proof of the precise circumstances of the nexus is not required: Repatriation Commission v. Hughes (1990) 13 AAR 34 at 38 per Justice Davies, approved by a Full Court (Beaumont, Einfeld, Hill JJ.) (1991) 23 ALD 270 at 275.
The Tribunal's findings of fact are cursory and scant but it seems that these facts were either found or satisfactorily evidenced:
1. The veteran grew up in the country as a member of a religious family which saw little alcohol consumption other than an occasional drink of stout by his father, and a specific visit by father and son to a hotel where the veteran, as an 18 year old lad, had a stout and lemonade.
2. The veteran matriculated from a Roman Catholic boys' secondary school at Armidale to Sydney University to study as a teacher. He boarded with the parents of a woman who is now Mrs Wooding. This was a strictly teetotal family.
3. Sharing a common interest in music, Mr Henry and Mrs Wooding also went out socially before Mr Henry enlisted. She observed him to be a non-drinker even in such non-restrictive ventures. Others described him likewise and said he was not visibly nervous. He played football, tennis and cricket.
4. The veteran served in the RAAF from 14 July 1943 to 30 January 1946, principally on the Pacific island of Goodenough from 16 November 1943 and at Milne Bay in the south west Pacific from 29 May 1944. He received a Pacific Star War Medal and an Australian Service Medal. He was mustered as a messman (assistant cook) and posted to 100 Squadron.
5. Although not an officer, he used to entertain the officers' mess by playing the piano. The Tribunal found that he probably "would have been rewarded with alcohol" but was unable to say how often this occurred. The Tribunal thought it "extremely unlikely that a cook's assistant/leading aircraftsman would have been a habitual visitor to an officers' mess".
6. Australian troops were in the habit of bartering other goods for liquor from American forces so that liquor was presumably available outside the officers' mess. There is no evidence either way as to whether Mr Henry imbibed any such liquor.
7. The veteran was subjected to considerable stress during his service. One of his friends was found after being tortured by the Japanese. He had spoken, after the war, of having had nightmares about the Japanese in his tent. It seems that Japanese presence or activity at Goodenough and Milne Bay had ceased by the time of Mr Henry's postings there. It is possible that the postwar recollection of the nightmares was associated with or occurred when he had taken alcohol.
8. The applicant met Mr Henry in August 1948 and they married on 27 October 1951. The Tribunal found little or no evidence as to what occurred in Mr Henry's life between 1946 and 1948, but there was evidence that he had obtained employment with the New South Wales Department of Education as a school teacher from about 1947 to 1954 or 1955 when he was medically boarded out.
9. Mrs Henry observed from an early stage of their relationship that her husband was a heavy and habitual beer drinker. He displayed nervousness, was disturbed by talk of the war and used to "go off and drink" when there was such talk. Stress caused heavier drinking, and the effects were apparently worse when he drank at the time he took prescribed medication.
10. There was evidence of a particular closeness between Mr Henry and
one of his sisters Mrs Hughes. She could not give evidence because she had recently died, but there was evidence that Mrs Hughes had told the applicant that her brother had come back "changed from the war, that he never drank and never smoked
(before) and she said that it was a shocking habit and that was what he was doing". Mrs Henry said that her husband had not wanted his family to know that he drank ... "he loved his sister very much and it used to hurt her a lot".
11. The Henrys lived in or near Taree. Prior to their marriage,
whenever they went to Wingham to go to the movies or for other purposes, her husband used to stay drinking in the hotel until closing time at 6 pm. He drank when he played in a dance band. He used to drink nearly every day.
12. This pattern of drinking continued; he took no notice of his
wife's comments on his drinking habits. He even made and drank a home brew.
13. He was diagnosed with cancer of the colon in about March 1987.
Two operations or other hospital treatment in April and December 1987 did not assist and he died in January 1988.
The Commission conceded before the Tribunal, and did not suggest otherwise in the appeal, that there was a reasonable hypothesis that the intake of alcohol in the quantities here involved is a known cause of colon cancer. Hence the hypothesis involved in the case is whether Mr Henry's heavy drinking was due in part to his war service. Such a hypothesis would clearly have been reasonable if there was evidentiary material to support it. Although it appears to have been dressed up as a medical question before, and perhaps by, the Tribunal, it is principally a factual question largely to be derived by inferences from known or accepted facts. The dearth of fact-finding by the Tribunal makes its determination particularly difficult to review on this question. In my judgment it has simply failed to find the necessary facts to support its decision that the hypothesis did not exist.
The principal medical evidence on the matter was given by Professor Nick Heather, Director of the National Drug and Alcohol Research Centre at the University of New South Wales who reported on the matter on 8 March 1991. Professor Heather is a specialist in psychology with particular experience in the treatment and research of alcohol problems. Accepting that Mr Henry had started drinking on active service, Professor Heather proposed two available hypotheses:
1. That his habitual drinking arose on active service as a result of his experiences.
2. That he had become only a moderate drinker on active service and had progressed to heavy or habitual drinking after the war by a growing alcohol dependence unrelated to war service. His report said of this possibility:
this is not to say that such a hypothesis has been disproved but merely that there is no basis in available information on which to either accept or reject it.
It must be said at once that nothing in Professor Heather's report or evidence could have enabled the Tribunal to find that the first hypothesis was disproved beyond reasonable doubt. Nor does the Tribunal purport to have done so. The validity of the second hypothesis does not per se result in a conclusion of such disproof. Moreover, there was what the Tribunal called "an important concession" made by Professor Heather in cross examination. The concession referred to seems to have arisen from this evidence:
Q. For the purpose of these questions I'd ask you to assume that the evidence given by Mrs Henry was that on occasions when Mr Henry heard anything said about the war he would 'go off', what she meant by (sic - presumably 'was') go off and start to drink. I'd also ask you to assume that the evidence was that on occasions when he drank he had nightmares to do with his war service. The evidence was that he thought that the Japs were in his tent. Can you draw anything from that?
A. Yes, I would draw the conclusion that, if that were the case, that drinking was related to the stress he had experienced during the war. ... Q. Given what I've put to you Professor in relation to Mrs Henry's evidence, do you still adhere to the statement made in your report that: "This is not to say that such a hypothesis has been disproved but merely that there is no basis in available information on which to either accept or reject it."?
A. The evidence that you mentioned regarding the veteran's tendency to begin drinking whenever the war was mentioned, if I understood you correctly, and to have nightmares about the war after drinking was not available to me. If it had been I would certainly have needed to examine it closely and it may have lead
(sic) me to revise that conclusion. Q. Well, having had the benefit of that evidence now do you so revise your opinion of this man's supposed dependency on alcohol and its sources? A. Am I to assume that the evidence is true? Q. Yes, on the assumption that that evidence was given? A. Yes, it would.
Without identifying the relevant evidence for the conclusions, the Tribunal found that the suppositions about Mr Henry's postwar reaction to "war talk" and his postwar hallucinations concerning events in his tent were clearly brought about by a combination of alcohol and medication. Hence, by implication because it said nothing about the conclusions, the Tribunal seems to have rejected the evidence comprised in the concession. It is curious why it was therefore regarded as important.
In my opinion, this approach produced a major legal error. Even if it were established that the suppositions put to him were induced by the effects of alcohol on medication, as the Tribunal concluded albeit without evidence, the concession by Professor Heather was not based upon what produced these occurrences but whether they occurred. Nor was the Professor's revised opinion premised on whether the veteran's reactions were justified by what actually happened to him. There was uncontested evidence from the applicant that her late husband's responses occurred. There was no reason for not accepting, and the Tribunal appears to have accepted, that this evidence was true and that the events took place. On this basis, Professor Heather twice said quite unequivocally that Mr Henry's drinking habit was caused or contributed to by the stress of his war service. Professor Heather was the Commission's witness. There was no contrary evidence. The Tribunal either did not reject this evidence or explain how and why it did.
The Commission submitted on the appeal that "the weighing up of the evidence was and is a matter for the Tribunal". I agree but the problem here is that even on the most generous possible reading of the Tribunal's determination, it did not undertake this task as required by the law. Contrary to the Commission's submissions, this appeal is not from factual findings but about whether there is evidence to support the finding required by the Act if the applicant is to be denied a pension. Such a matter is a clear question of law, even though to explain and elucidate the legal error, it is necessary to examine the facts.
In Law at 70-1, the Full Court said:
The finding of the Tribunal that there was no evidence to indicate that Mr Law started to smoke because of the conditions and demands of his particular war service or because of the conditions in general pertaining to prisoners of war was erroneous in point of law. While there was no direct evidence from Mr Law, he being dead, there was evidence of circumstances which raised a real possibility that he did start to smoke because of those conditions. If the question were whether the claimant had proved that that was the correct conclusion, we should not disagree with a finding that she had not. However, that is not the question which the legislation posed for the Tribunal. The Tribunal could not properly be satisfied that Mr Law had not started to smoke for the reasons stated.
The identified error there was made again in this case. I find that the Tribunal did not pose, or if posed, correctly answer, the question required by the Act. This was whether the facts permit a finding beyond reasonable doubt that there is no sufficient ground for linking Mr Henry's drinking to his war service because the available material does not raise a reasonable hypothesis of nexus. I find further that the Tribunal either failed to conclude whether Professor Heather supplied sufficient evidence to support or not to refute a reasonable hypothesis of nexus as required, or concluded that he did not support the hypothesis by misconstruing the evidence he gave.
The appeal will be allowed and the decision of the Tribunal set aside. If I was convinced that the Tribunal did not pose the right question, and the right question if posed would admit only one answer, I would be permitted by authority to make a declaration of right in favour of the applicant. But the paucity of the Tribunal's reasoning makes clearly defined facts difficult to identify with confidence. It is not clear whether the Tribunal posed the right question and provided no or the wrong answer, or whether it posed the wrong question. This is not the stuff of final decision-making by the Court. The matter will be remitted for reconsideration in accordance with these reasons for judgment. The respondent will pay the applicant's costs.
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