Horne, Gladys v The Repatriation Commission
[1996] FCA 958
•8 NOVEMBER 1996
CATCHWORDS
DEFENCE AND WAR - appeal from decision of the Administrative Appeals Tribunal upholding a decision of the Repatriation Commission refusing war widow's pension - connection between death of veteran and war service - Tribunal required to find death war-caused unless satisfied beyond reasonable doubt that no sufficient ground for so finding - Commission required to be so satisfied if of opinion that material does not raise reasonable hypothesis connecting death with war service - relationship between requirements - whether Tribunal may make assumptions in formulating hypothesis - whether verification of raised facts giving rise to the hypothesis necessary to the ascertainment of the hypothesis or only as to whether the hypothesis is accepted.
Veteran's Entitlements Act (Cth): s120.
Bushell v Repatriation Commission (1992) 175 CLR 408; discussed and applied.
Byrnes v Repatriation Commission (1993) 177 CLR 564; discussed and applied.
Gilbert v Repatriation Commission (1989) 86 ALR 713; referred to.
Repatriation Commission v Stares (Full Court, unreported, 28 May 1996); referred to.
GLADYS HORNE v THE REPATRIATION COMMISSION
No NG 698 of 1995
HILL J
SYDNEY
8 NOVEMBER 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 698 of 1995
)
GENERAL DIVISION )
ON APPEAL FROM THE VETERANS' APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:GLADYS HORNE
Applicant
AND:THE REPATRIATION COMMISSION
Respondent
CORAM: HILL J
PLACE: SYDNEY
DATED: 8 NOVEMBER 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The matter be remitted to the Administrative Appeals Tribunal to be heard again in accordance with these reasons.
The respondent pay the applicant's costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 698 of 1995
)
GENERAL DIVISION )
ON APPEAL FROM THE VETERANS' APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:GLADYS HORNE
Applicant
AND:THE REPATRIATION COMMISSION
Respondent
CORAM: HILL J
PLACE: SYDNEY
DATED: 8 NOVEMBER 1996
REASONS FOR JUDGMENT
Mrs Horne appeals from the decision of the Administrative Appeals Tribunal, constituted by a Senior Member and two Members, affirming a decision refusing to her a pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act"), on the basis that the death of her husband had not been determined to be war-caused, within the meaning of s8 of the Act.
The case raises once again the familiar but difficult question of the application of ss120(1) and 120(3) of the Act and the relationship between them. It is submitted that the Tribunal, in coming to its conclusion, misapplied the principles established by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564, notwithstanding that the Tribunal purported to apply the former and quoted extensively from the joint judgment of Mason CJ, Deane and McHugh JJ in that case.
Before turning to consider the way in which the Tribunal approached the task before it, it is necessary to summarise shortly the evidence before the Tribunal.
Mr Horne died on 10 July 1978. According to his death certificate, the cause of his death was congestive cardiac failure following partial gastrectomy for a bleeding duodenal ulcer. It was not in dispute between the parties that Mr Horne suffered arteriosclerosis, which contributed to his heart failure and which was causally connected to his being a heavy smoker. The cause of his duodenal ulcer was also smoking and alcohol abuse.
The only evidence called in the case was that of Mrs Horne. At the time of the hearing she was 77 years of age and, as the Tribunal noted, her memory might not have been as reliable as a younger person's. She said that she had not met her husband until after he had been discharged from the army. In consequence it is not surprising that she was unable to give any direct evidence of her husband's smoking or drinking habits prior to 1945 when they first met. At that time, she said that he both drank and smoked. Mr Horne had seen service in Darwin in a period which he had described to Mrs Horne as
being a "very distressing time up there". That was when Darwin was being bombed and, in Mrs Horne's words, "I think he was sort of a bit disturbed about it."
Mrs Horne said, in response to a question directed to ascertain when Mr Horne had commenced drinking, that it was when Mr Horne was "up in the army, up in Darwin". She said that he had said to her that being with the crowd he just went with them. When asked when he commenced smoking she said that he had not actually told her the day or date, but that he had just said that it was while he was in the army. He had been in Darwin for three years or more.
Later Mrs Horne was asked how she knew that Mr Horne had never smoked before he joined the army. She said she knew that from what his family used to tell her, saying that in the meantime all of the older members of his family, aunts and the like, had passed on. The transcript shows the following passage:
"What did his family used to tell you?
Oh, well, not much I suppose. I didn't see too much of them, I was so busy working myself at the time. I know he used to smoke and have a few beers when he was in the army but I don't know about before. He never talked about that type of thing.
So you do not know whether or not he smoked or drank before the army?
No, no, well, I wouldn't know.
So he may well have then?
No, well, see, I only know what happened, what he told me about when he was in the army. But he used to talk a lot about being up there in Darwin when the bombing was going on and different things that you know used to take place. I suppose - he said that was frightening that's all."
It seems that during a medical examination that was conducted on 30 September 1943, Mr Horne had admitted to smoking four ounces of tobacco a week and to drinking alcohol. There is nothing in the service record which indicated whether or not Mr Horne had commenced smoking and drinking prior to enlisting. Nor did the records indicate any particular stress suffered by him from military service, other than a note of a psychiatric report in 1970 where he had apparently said "Darwin very monotonous, but coped."
After discharge from the army Mr Horne returned to his pre-war occupation as a shearer, working away from home during the week and returning home at weekends. Although he never brought alcohol home, he drank at weekends when with his mates. It is certainly not in dispute that he ultimately became an alcoholic and, at least in 1964, was recorded as smoking twenty cigarettes a day.
In its reasons the Tribunal referred to "a smoking questionnaire" which Mrs Horne had apparently completed on 14 February 1994 in connection with her claim. In that questionnaire Mrs Horne, in response to a question "Why did the late veteran take up smoking?" had written "Unknown". She had also written "Unknown" in response to the question "What year did he take up smoking?". She had ticked the box "Before service" as indicating the time when he had taken up smoking and in response to the question whether his smoking habit had changed during the service, she replied that it had in that it had increased as a result of stress with consumption levels of two to three ounces a day. She indicated that this habit had not changed after service.
Interestingly, no-one sought to confront Mrs Horne with this questionnaire which was at odds with her oral evidence. Had she been asked about it, it may well be she could have explained the discrepancy. As it is, it seems to me that to rely upon the smoking questionnaire might well be not to afford her procedural fairness. That, however, was not a point taken on her behalf and I therefore say no more about it.
Mrs Horne had also completed a questionnaire concerning Mr Horne's drinking in connection with her application. In that questionnaire, Mrs Horne said that her husband had started drinking alcohol during the army service
due to stress. She said that his drinking habit had changed during the service. Her reply did not seem particularly responsive to the question. She said "He [Mr Horne] started drinking heavily after work up to ten beers he could not relate to civil life and missed his mates." When asked in her oral testimony about this report she appeared to have forgotten what she had said.
The Tribunal concluded that it was not satisfied that there was sufficient material before it to raise an hypothesis that Mr Horne's smoking and drinking habits were causally connected to his war service. Critical to its conclusion and the approach it took are the following paragraphs taken from its reasons.
"14.Apart from the suggestion that `stress' was the cause of the Deceased's increased smoking habit or starting to smoke, there was little evidence as to what constituted this stress or the way in which it affected the Deceased. The Applicant did say that the Deceased had told her that it was a very distressing time at Darwin and that it was not a pleasant place to be when the bombing was on.
15.The Tribunal can appreciate that life in Darwin during the period August 1943 to April 1944 was not pleasant and that being in an area subjected to bombing raids would induce feelings of apprehension. But, even given all this, there is no material before the Tribunal to suggest that it was for those reasons that the Deceased either began to smoke or increased a smoking habit. To suggest that he did so would be to put speculation in the place of evidence.
...
18.In analysing the Deceased's smoking history, the Tribunal notes that the Smoking Questionnaire completed by the Applicant and her application to the Veterans' Review Board, were compiled by her in a less stressful atmosphere than a hearing. Given the frailties of recollection for a person of 77 years, the Tribunal finds that it is persuaded that the Deceased did smoke on enlistment. His smoking may have increased during his war service but there is no evidence of the rate of this increase or that the said increase, if it did exist, was causally related to his war service.
19.Similar factors apply to the Deceased's alcohol habits. Although the Applicant states the Deceased started drinking during service due to stress, there is no evidence as to what this stress was and how it caused him to start to drink alcohol, much less develop a habit of dependence. In addition there is no evidence as to quantities consumed or the pattern of drinking.
...
22.As with the Deceased's smoking, the Applicant was unable to give any direct evidence as to his partaking of alcohol prior to service as she did not meet him until after discharge from the Army. She did state, however, that he used to drink with his `mates' who had also been in the Army.
23.Although the Deceased was later in life alcohol dependent, there is no evidence that he was dependent at or shortly after discharge. After discharge from the Army the Deceased returned to his pre-war occupation of shearer and worked away from home during the week, returning home at weekends. The Applicant stated that at weekends he drank but, significantly, the Deceased never brought alcohol home nor drank by himself and the drinking was done in the context of being with his mates.
...
25.The Deceased was 28 when he enlisted in the Army. Although this of itself proves nothing, the inference may be drawn that if a person of that age was a non smoker and teetotaller he would be less likely than a younger recruit to commence to smoke or drink alcohol as a result of peer pressure. Other external forces may contribute, for example, imprisonment, hazardous service or even mere boredom, but there is in this case simply no evidence of any factors which did cause the Deceased to start to smoke or smoke more heavily or to drink alcohol.
26.Post service there is no evidence of continuing stress which might have caused the Deceased to seek solace in alcohol. The Applicant said that the Deceased used to talk about his experiences in Darwin quite frequently but there is no evidence of any distress or mental agitation when he spoke of those experiences. What does emerge is a picture of a man who enjoyed a drink with his mates after work or on weekends when he returned home from shearing.
27.Having regard to the whole of the material before us we are not satisfied that there is sufficient material to raise any hypothesis that the Deceased's smoking and drinking habits were causally connected to his war service. The Tribunal is thus deemed to be satisfied beyond reasonable doubt that the death of the Deceased was not war-caused. The decision under review is therefore affirmed."
Sections 120(1) and 120(3) of the Act are in the following terms:
"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; 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."
It is common ground between the parties that Mr Horne's service in Darwin was "operational service" within the meaning of s120(1) of the Act. In Gilbert v Repatriation Commission (1989) 86 ALR 713 at 717-8, I discussed the historical background to the sub-sections. Although that historical background explains how the sub-sections came to take their present form, the sub-sections must, of course, be construed in accordance with their terms. That question of construction has been facilitated by two authoritative decision of the High Court, Bushell and Byrnes, to which reference has already been made.
In Bushell the Administrative Appeals Tribunal had been of the view that a hypothesis that essential hypertension arose as a result of an anxiety state emanating from the circumstances of war service was unreasonable. It was in this context that the High Court considered the construction of s120. At 412, in the joint judgment of Mason CJ, Deane and McHugh JJ, there commences a discussion of the relationship of ss120(1) and 120(3). Their Honours, after setting out the whole of s120, continued:
"There is no presumption that the injury, disease or death of a veteran was war caused: s.120(5). On the other hand, the claimant for a pension to which s.120 applies has no `onus of proving any matter that is, or might be, relevant to the determination of the claim or application': s.120(6). That being so, the claim, having been made, must succeed unless the Commission `is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination': s.120(1). However, the meaning of the expression beyond reasonable doubt is not left at large. Satisfaction beyond reasonable doubt is deemed to be established if, after considering the whole of the material before it, the Commission is of the opinion that that material `does not raise a reasonable hypothesis connecting the injury, disease or death with the
circumstances of the particular service rendered by the person': s120(3). But does this mean, as counsel for the Commission contended, that s.120(3) exhaustively defines the content and the application of the concept of `reasonable doubt' mentioned in s120(1)? Or does it mean, as counsel for the appellant contended, that s.120(3) merely states an evidentiary threshold which must exist before s120(1) is given its natural and ordinary meaning?
The relationship between s120(1) and s120(3)
Notwithstanding the submission of counsel for the Commission, s120(3) is not exhaustive of the content of s120(1). Sub-section (3) is concerned with whether `the material' raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s.(3), as demonstrated by its terms and its history, is to ensure that a claim to which s120 applies is not met unless there is some material which raises the relevant causal hypothesis. Its principal purpose is to overcome the effect of the judgment of this Court in Repatriation Commission v. O'Brian (1985) 155 CLR 422, at pp.433-434 where the majority held that it was not the law that the Commission must be satisfied that there were insufficient grounds to support the claim if the material in the case did not `provide some positive inference in favour of the requisite connexion between death or incapacity and war service'."
Their Honours then set out (at 413-414) in some detail the Explanatory Memorandum to the Bill which later became the Veterans' Entitlements Act including an addition to that Memorandum in the following terms (at 414):
"`It is intended under sub-clause 119(3) that there must be some material before a determining authority for it to make a judgment on whether it is satisfied beyond reasonable doubt that there is no sufficient ground to grant a claim.'"
Their Honours then continue:
"The material will raise a reasonable hypothesis within the meaning of s120(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. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s.120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. ...
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 s120(3) to require the Commission to choose between competing hypothesis 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 s120(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 connexion 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.
If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s.120(1). That is to say, the Commission must determine that the injury, disease or death was war caused `unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination'. The use of the terms `the material' and `raise' strongly suggests that sub-s.(3) is not concerned with the proof or satisfaction of a claim but with whether there is some `material' which calls for a determination under s.120(1). The phrase `[i]n applying subsection (1) or (2)' (emphasis added) in s.120(3) also suggests that s.120(1) is the governing provision. ...
... it is the duty of the Commission under s.120 to decide the claim on the material before it and, unless there is material which raises a reasonable hypothesis connecting the operational service with the incapacity or death, there is nothing upon which the Commission can find that the incapacity or death was war caused within the meaning of s.120(1). But once the material raises such a hypothesis, the operation of s.120(3) is spent and the case falls to be determined in accordance with s.120(1). That is to say, the Commission must determine that the injury etc. was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination.
The Commission will be satisfied beyond reasonable doubt `that there is no sufficient ground for making [the] determination' if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s.120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, `beyond reasonable doubt, that there is no sufficient ground for making the determination' even though the raised facts are not disproved."
In Byrnes the claimant had, during the course of his service with the navy, suffered a neck injury. Later he suffered from cervical and thoracic spondylosis and the hypothesis was that, if the claimant had suffered a severe injury to his neck initially, it could have caused degenerative changes. It was, of course, unknown whether the original injury had been severe. It was submitted on behalf of the Commission that the material before the Tribunal had not raised a reasonable hypothesis, since it was unknown whether or not the initial injury had been severe. The leading judgment of Mason CJ, Gaudron and McHugh JJ discusses the interpretation of sub-ss(1) and (3) in the following passage (at 569-71):
"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. ...
In some cases, the hypothesis may assume the occurrence or existence of a `fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.
Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved ..., either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis...".
The passages in the joint judgment in Bushell that indicate that once the `raised facts' raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved ... should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s.120(1), to preclude a finding by the Commission that the injury was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered `the whole of the material' bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision maker. Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that `the factual foundation upon which the hypothesis can operate does not exist' ..."
The position may be summarized as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. 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, thus disproving, beyond reasonable doubt, the hypothesis."
Thus in Byrnes the sustaining of a severe injury was part of the hypothesis. It was not, at least at the stage of s120(3), a matter for proof or evidence.
After two decisions of the High Court and the detailed explanation of s120 emerging from those judgments, it seems almost presumptuous for a single judge of this Court to restate the relevant principles, for so to do is either to repeat what the High Court has said word for word, or to run the risk of over-simplification. However, the present case seems to me to illustrate the fact that the Tribunal had not understood what the High Court has attempted to enunciate. I will, accordingly, attempt to distil the principles from Bushell and Byrnes and other cases as I see them.
The ultimate issue for determination is whether an injury is a war-caused injury, a disease is a war-caused disease, or the death of the veteran was war-caused: s120(1).
In a case such as the present where the claim is that death was war-caused, the decision-maker, or the Tribunal in its stead, is required to consider the whole of the material before it. By "material" is meant the documentary and oral evidence in the proceedings.
From its consideration of all of this material, the Tribunal must determine whether some or all of it raises, that is to say points to, an hypothesis which connects the death with the circumstances of the veteran's service.
An hypothesis cannot be constructed out of the air. It must be pointed to by the facts before the Tribunal or some of them. Section 120(3) is not concerned with a mere abstract hypothesis: Gilbert at 719.
At the stage of determining whether an hypothesis is raised the Tribunal is not concerned with determining matters of fact. If some or all of the material points to the hypothesis, that is sufficient.
The hypothesis may be based on facts that are inferred and in a particular case there could be an element of assumption: Repatriation Commission v Stares (Full Court, unreported, 28 May 1996) for example. So as that case indicates, the hypothesis pointed to may proceed on the assumption that the applicant consumed alcohol on service where the only evidence was that he had not drunk alcohol before the war and did so after he came back.
The decision-maker or tribunal in his or her stead, is then required to determine whether the hypothesis of connection between injury, disease or death on the one hand and service on the other, is reasonable. That will involve a consideration of all of the material before the Tribunal to determine that the hypothesis is not one which is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". Nor can a hypothesis be reasonable if it is "contrary to proved scientific facts": Bushell at 414. At this stage of the process the Tribunal is not required to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another, it merely has to decide whether the hypothesis is reasonable. In doing this of course it will need to have recourse to such medical or scientific material as is available to it. If the result of this process is that no reasonable hypothesis has emerged of a connection between the injury, disease or death of the veteran and the war service, the application fails.
If, on the other hand, the hypothesis of connection is in the opinion of the decision-maker reasonable, then the decision-maker or tribunal as the case may be must turn to sub-s(1). Under sub-s(1) the decision-maker is directed to allow the claim for pension, unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. In forming that
view the Tribunal is required to apply a test of proof beyond reasonable doubt. Particularly, the Tribunal is required to apply the onerous standard in dealing with whether the facts upon which the hypothesis was based are untrue. If the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination, ie that it cannot accept the raised facts or such of them as are necessary to support the hypothesis: Bushell at 416, the applicant must fail. Again, it may be that if the raised facts depend upon inferences and the decision-maker under sub-s(1) is satisfied that those inferences cannot be drawn, then there will be sufficient ground for making the determination rejecting the application.
When the matter comes on appeal to this Court, the Court's powers are limited. The question whether the material before the Tribunal does raise an hypothesis will be a question of fact for the Tribunal to decide. The question whether that material is capable of raising an hypothesis would involve a question of law. The question whether the hypothesis is reasonable is one also for the Tribunal of fact. Indeed, it is one for the opinion of the Tribunal and the Court will not likely interfere with the Tribunal's view. It would only be where the Tribunal has erred in law in forming its opinion that the Court could overrule the opinion.
For example, in the present case, the Tribunal formed the view either that no hypothesis was raised or that no reasonable hypothesis was raised because it was of the view that there was no material before the Tribunal to suggest that Mr Horne either began to smoke or increased his smoking habit because of stress brought about by the bombing of Darwin. But that is precisely the sort of matter which may form part of an hypothesis or be assumed in the hypothesis. The relevant hypothesis is that the deceased began to smoke or increased his habit during the war, inferentially that that was brought about by the stress which the deceased had and which objectively could have emerged from the bombing of Darwin and in circumstances where ultimately his death was brought about by smoking-related conditions. The Tribunal's failure to appreciate that it could make assumptions, just as the High Court had done in Byrnes and the Full Court of this Court had done in Stares, was an error of law.
But that was not the only error of law which the Tribunal committed. The Tribunal failed to approach the matter in the way that it was required to do under sub-ss(1) and (3) of s120 of the Act. In particular, the Tribunal seems to have proceeded upon the basis that in determining whether there was an hypothesis that was reasonable, it was required to decide the very facts upon which that hypothesis depended (presumably on a civil standard of proof). But that is not the role of the Tribunal under sub-s(3). Subsection (3) looks
only to the ascertainment of an hypothesis pointed to by the raised facts. It does not proceed on the assumption that the raised facts have been verified. That is a matter for sub-s(1) to be determined on a high level of probability "beyond reasonable doubt".
It follows that the application must be remitted to the Tribunal for further consideration in accordance with the reasoning which I have set out. Particularly, there having been an hypothesis advanced of the connection between the death and war service, the Tribunal will need to apply sub-s(1) in considering whether the underlying premises upon which the hypothesis was grounded are indeed true. Particularly, this will require the Tribunal determining whether the Tribunal is satisfied beyond reasonable doubt that the deceased did not commence smoking during his time of war service or did not increase his smoking during his time of war service or did not commence drinking at the time of his war service and, in any of these cases, the cause for the commencement of smoking or drinking, or increasing either of these, was not the stress brought about by the bombing in Darwin.
I would accordingly remit the matter to the Tribunal to be heard again. In so doing, I note that it is a matter for the Tribunal itself in that rehearing to determine whether
further evidence should be taken. The respondent should pay the applicant's costs of the application.
I certify that this and the
preceding twenty-two (22) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.
Associate:
Date: 8 November 1996
Counsel and Solicitors A McInnes QC and A L Hill
for Applicant: instructed by Kenneth Harrison
Counsel and Solicitors R M Henderson instructed by the
for Respondent: Australian Government Solicitor
Date of Hearing: 23 July 1996
Date Judgment Delivered: 8 November 1996
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