Ingram v Repatriation Commission
[2001] FMCA 125
•20 December 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
INGRAM v REPATRIATION COMMISSION [2001] FMCA 125
VETERANS AFFAIRS – Veteran’s entitlements – widow’s pension – whether death was war caused – smoking – sun exposure cause of death – whether Tribunal in error in not investigating an issue not pursued by applicant’s representative at the Tribunal hearing.
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Smith (1986) 15 FCR 327
Bushell v Repatriation Commission (1992) 175 CLR 408
Treloar v Australian Telecommunication Commission (1990) 26 FCR 316
Grant and Repatriation Commission (1999) 57 ALD 1
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Keeley (2000) FCA 532
| Applicant: | MARGARET DOROTHY INGRAM |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MZ 338 of 2000 |
| Delivered on: | 20 December 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 2 March 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr D De Marchi |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Mr P J Hanks QC |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
(1)The appeal be dismissed.
(2)The applicant shall pay the respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
MZ 338 of 2000
MARGARET DOROTHY INGRAM
Applicant
And
REPATRIATION COMMISSION
Respondent
REASONS FOR JUDGMENT
Background
MARGARET DOROTHY INGRAM (Mrs Ingram) is the applicant in an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Mrs Ingram seeks to appeal from a decision of the Administrative Appeals Tribunal (the AAT) delivered on
2 February 2000. In its decision the AAT had affirmed a decision under review of the Repatriation Commission (the Commission) dated 12 May 1994 which decided that the death of Mrs Ingram’s husband (the veteran) was not war caused. That decision of the Commission had been affirmed by the Veteran’s Review Board on 21 July 1995.
The AAT decision affirming the Commission’s decision meant that the death of the veteran was not war caused within the meaning of s 8 of the Veterans Entitlements Act 1986 (the VE Act).
It is appropriate to refer to the summary of the background material provided by the AAT in its decision. The veteran had served in the Royal Australian Navy (RAN) from 7 February 1964 to 6 February 1984. He was allotted for duty in the Vietnam operational area aboard the HMAS Vendetta from 25 May 1966 to 11 June 1966 and has eligible war service (which is also operational service) as defined by s 6A of the VE Act.
The veteran’s service from 7 December 1972 until discharge on 6 February 1994 constituted defence service. In relation to the veteran’s operational service the Tribunal stated that the test is that of a reasonable hypothesis in accordance with sub sections 120(1) and 120(3) of the VE Act. In relation to the veteran’s defence service the test is that of reasonable satisfaction in accordance with sub-section 120(4) of the VE Act. There is no dispute in the present case that there are essentially two periods of service covered by the VE Act from the total period served from 7 February 1964 to 6 February 1984. The two periods are:
(a)The period from 25 May 1966 to 11 June 1966 when the veteran served as a member of the crew of HMAS Vendetta on a voyage to and from South Vietnam. It is common ground this is operational service and eligible war service for the purpose of the VE Act in relation to that period (ss 5C(1), 6C(1), 7(1)(a) of the VE Act); and
(b)The period 7 December 1972 to 6 February 1984 was defence service for the purpose of the VE Act and the veteran was a member of the forces in respect of that period (ss 68(1) and 69(1) of the VE Act).
The veteran died at the age of 46 years on 16 June 1993. The cause of death was certified as “respiratory failure (3 weeks)” and “disseminated malignant melanoma (3 months)”.
Mrs Ingram lodged a claim for a pension on 19 November 1993. The AAT noted that in this matter as the claim had been made prior to
1 June 1994 then the Repatriation Medical Authority Statements of Principles are not relevant. It was further noted by the AAT that the applicant had contended that excessive solar exposure contributed to the veteran’s death. The finding by the Commission on 12 May 1994 was that there was no medical evidence of any likely primary skin lesion and the exact cause of the site of primary malignancy was unknown. The Commission was therefore satisfied that there was not a reasonable hypothesis connecting the veteran’s death with the Vietnam service nor on the balance of probabilities was the veteran’s death defence caused.
It is useful to re-state the basis for the claim made by Mrs Ingram referred to by the Tribunal as follows:-
“6. The applicant has applied to this Tribunal for review of the Commission’s decision. She does not rely upon the establishment of a reasonable hypothesis in relation to the veteran’s operational service, but maintains that the Tribunal should be reasonably satisfied that the veteran’s death was war-caused on any of the following bases:
(a)The veteran’s defence-caused smoking caused a malignant neoplasm of the lung and its metastases of which the veteran died.
(b)The veteran’s defence-caused solar exposure caused a melanoma which led to the veteran’s death.
(c)The veteran’s defence-caused smoking caused a primary malignancy in the veteran’s right kidney or his lungs, which led to his death.”
It is common ground that the Tribunal erred in that passage by referring to “war-caused” when it should have referred to “defence caused”.
In support of the claim and in material before the AAT Mrs Ingram provided a detailed statement which was usefully summarised together with conclusions and/or findings of fact by the Tribunal in the following extracts from its reasons for decision:
“8. The applicant did not attend the Hearing, but her lengthy statement dated 15 January 1997 was in evidence [Exhibit R4]. She stated that they met in December 1965 when she was 15 and he was 19; and they were both smoking in 1966, and the veteran was smoking 30 cigarettes per day by March 1966. He smoked more heavily subsequently, and by June 1970, when their son, Anthony, was born, the veteran was smoking 50 to 60 per day; but he and the applicant reduced their cigarettes to 40 per day when Anthony developed asthma in July/August 1970. The applicant states that the veteran continued to smoke cigarettes, and in the late 1970’s smoked a pipe, also one packet of pipe tobacco per week, and 30 cigarettes per day. He continued his smoking habit after leaving the Navy in 1984, and was smoking 40 cigarettes per day until his death. We are satisfied, on the evidence, that the veteran’s smoking habit was not attributable to his eligible service.
9. The applicant’s statement refers to the veteran suffering sunburn in 1967, on Manus Island. They walked about one kilometre to the canteen and both suffered burns on their shoulders, backs and arms. The veteran had blisters on his back the next day, and was left with white marks on his shoulders, which were permanent scars. The applicant refers to a further sunburn some six months later when the veteran fell asleep in the sun during his lunch break. These occasions of sunburn are clearly outside the veteran’s period of eligible service, and we are satisfied that this sun exposure was not defence-caused.”
The Tribunal concluded that there was no connection between the death of the veteran and his defence service. It found that the veteran’s smoking habit was not attributable to eligible service, that the episodes of sunburn set out in Mrs Ingram’s detailed statement occurred in 1967 and were clearly outside the period of eligible service. On the basis of expert medical opinion the Tribunal was satisfied that the primary site of the veteran’s carcinoma was his lung. Although the Tribunal was satisfied that the veteran’s smoking was sufficiently heavy and prolonged to have caused carcinoma of the lung or kidney and solar exposure would have caused a melanoma, it found that neither the smoking habit nor the solar exposure was related to the veteran’s eligible service. Its findings are set out in the following paragraph from the reasons for decision:
“17. We are satisfied also, that there is sufficient evidence that the veteran’s smoking was sufficiently heavy and prolonged to have caused either carcinoma of the lung, or carcinoma of the kidney; and that his solar exposure could have been sufficient to have caused any cutaneous melanoma. We have earlier stated in these reasons however, that we are satisfied on the evidence that neither the veteran’s smoking habit nor solar exposure was related to his eligible service. We are reasonably satisfied that the veteran’s death was not war-caused and the applicant’s claim cannot succeed.”
Again, in that paragraph it would seem to be common ground that reference to “war service” is incorrect and should again refer to “defence service”.
Grounds of appeal
Mrs Ingram relied upon four grounds of appeal as follows:
“3.1The Tribunal was wrong in law in its method of assessment of the relationship between smoking and service?
3.2The Tribunal was wrong in law in its interpretation of Section 120 of the Veterans’ Entitlements Act 1986 (“the Act”)?
3.3The Tribunal was wrong in law in the standard of proof it applied in assessing whether the Veteran’s death was service related?
3.4The Tribunal was wrong in law failing to give adequate reasons for its decision?”
Relevant legislation
The legislative framework in the present case does not appear to be in dispute. The issue essentially is one of whether the Tribunal either failed to interpret the legislation correctly or was wrong in its method of assessment between smoking, service and/or applied the wrong standard of proof.
It is common ground that s 13 of the VE Act provides that the Commonwealth is liable to pay a pension to the dependents of a veteran whose death was war caused. Liability will also arise to pay a pension to the dependents of a member of the forces whose death was defence caused (see s 70(1) of the VE Act).
I accept the submissions by the respondent that for the veteran’s death to be taken to have been war caused it would have been necessary to find one of the connections with his 18 days of eligible war service (operational service) referred to in s 8(1) of the VE Act – for example that the death arose out of or was attributable to that eligible war service.
I further accept that for the veteran’s death to be taken to have been defence caused it would be necessary to find one of the connections with his 11 year and 2 month defence service referred to in s 70(5) of the VE Act – again for example that his death arose out of or was attributable to the defence service.
It appears to me to be common ground that the appropriate standard of proof in deciding whether the death was war caused or defence caused is prescribed in s 120 of the VE Act.
For eligible war (operational service) reference is made to the standard of proof prescribed in s 120(1) and (3). I was referred to the decision of Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 where the Full Court of the Federal Court states:
“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.”
I accept that as submitted by counsel for the respondent that material arose a reasonable hypothesis where it points to such a connection, rather than simply leaving the connection open and the connection is not fanciful, too remote or too tenuous. It is helpful to refer to the decision of East v Repatriation Commission (1987) 16 FCR 517 and in particular the following passage which appears at pp 532-533 where the Court states:
“… The meaning of the phrase “reasonable hypothesis” was felicitously explained by a Veterans’ Review Board in Stacey (unreported Nos V83/0396, V84/0821 and V28/072, 26 June 1985); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254-255;
`A hypothesis may be conveniently defined as: `proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary.
…
The addition of the word `reasonable’ would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossibly, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be `raised’ by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a least sense: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case: or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.’
We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities”.
In relation to defence service the appropriate standard of proof prescribed by s 120(4) is to the decisionmaker’s reasonable satisfaction. That standard of proof I accept imports the civil standard of proof. It is useful to set out the following passage of the decision of Beaumont J in Repatriation Commission v Smith (1986) 15 FCR 327 where the Court states at page 335:
“Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation.”
Some guidance is obtained as to the process to be followed by a Tribunal in applying the appropriate standard of proof by the Court in the Smith Decision where in the previous paragraph the Court states,
“Yet, whilst the Tribunal was not bound by the technical evidentiary rules, especially the exclusionary rules, natural justice may require that it act on material that is relevant and logically probative.”
Applicant’s submissions
In support of the first ground of appeal the applicant referred the Court to paragraph 7 of the AAT decision where the Tribunal had referred to the argument of the Commission that the smoking habit of the veteran was a personal choice not causally related to eligible service and which he had continued after his service ceased. After noting the Tribunal was satisfied on the evidence that the veteran’s smoking habit was not attributable to his eligible service it was submitted that the Tribunal did not appear to have addressed the issue as to whether the smoking of the veteran which appeared to have been heavier following March 1966 and by June 1970 had reached 50 to 60 cigarettes per day was in any way related to the veteran’s operational service. That failure was claimed to be an error of law.
In support of the second ground of the appeal relating to the interpretation of s 120 of the Act it was submitted that there had been a failure by the Tribunal to apply the standard of proof required pursuant to that section in the case of a veteran who had operational service. There had been a failure by the Tribunal it was argued to assess whether the exposure during war service contributed if any to the potential malignant melanoma hypothesised by one of the medical witnesses.
Further criticism was made of the Tribunal’s decision when it found that it was reasonably satisfied the primary site of the veteran’s carcinoma was his lung. Again it was suggested that this was an error as the Tribunal had not adopted a standard of proof required by s 120(1) and (3). It was submitted that the test had to be conducted not to the reasonable satisfaction of the Tribunal but to a reasonable hypothesis pursuant to s 120(3) of the VE Act (see Bushell v Repatriation Commission (1992) 175 CLR 408).
As I understand the submissions in relation to ground 3 the applicant complains that the advocate before the Veterans’ Review Board contended that the application should be considered under both the reasonable hypothesis and balance of probabilities standards of proof and that the AAT did not appear to take this “on board”. The AAT it is said did not make its decision based on operational service but relied simply on the eligible service of the veteran. It was submitted that in those circumstances it is open to the applicant before this court to claim that the material before the AAT required it to consider whether or not the claim could have been made out pursuant to the veterans operational service and that the Tribunal had a responsibility to have considered this even if not presented to the AAT by the applicant’s counsel.
The court was referred to evidence of medical experts Dr Jeal and Professor Kune who according to the Tribunal (at paragraph 15) had agreed that the veteran’s solar exposure could have been sufficient to have caused “cutaneous melanoma”. It should be noted in passing that the Tribunal in the same paragraph referred to Dr Jeal’s evidence where he expressed doubt about the diagnosis of malignant melanoma and Professor Kune had made the point that a primary (presumably cutaneous) malignant melanoma can regress (or disappear) after it has already metastasised. It should also be added for the sake of completeness that the Tribunal further referred to the evidence of Dr Jeal and the reports of Professor Kune and Maynard and came to the conclusion that it was satisfied that the most likely primary site of the veteran’s carcinoma was his lung and that of all the three main possibilities the least likely was a melanoma.
Nevertheless it was submitted on behalf of the applicant that the Tribunal had not considered the law arising out of the decision of Treloar v Australian Telecommunication Commission (1990) 26 FCR 316. It was submitted that this is a relevant case which had also dealt with beneficial legislation and that reliance upon this case would assist the applicant in establishing the reasonable hypothesis test. Again it was submitted in this context that it is open for the applicant to argue that the claim should have been considered on the basis of operational service.
During the course of submissions the following exchange occurred:
“HIS HONOUR: Just let me put this to you, …... If you look at paragraph 16 of the tribunal’s reasons at page 189, where a tribunal had medical evidence before it – and in this case I assume that Dr Morley is a medical practitioner, although I don’t know whether that’s correct, I just make that assumption and if that’s wrong I’m sure you’ll tell me.
But where you’ve got a tribunal constituted by a senior member and a medical practitioner looking at medical issues and dealing with the evidence, and they then conclude in paragraph 18 that they’re satisfied the most likely primary site of the veteran’s carcinoma is his lung and of all three main possibilities the least likely was a melanoma, and then they go on to make that finding in the final sentence, where does that leave you in terms of a failure, if there is one, to deal with exposure to the sun during the operational service period of 18 days?
MR DE MARCHI: If the tribunal is restricting itself in that finding for the defence period of service, it is a finding that is open to it to make. But if it purports in that same paragraph to pick up the operational service, then there are serious problems with that particular sentence because, first of all, it weighs up the medical evidence, which it is not permitted to do. You don’t weight up the evidence, you examine all of the factors in reaching a conclusion as to whether there is a reasonable hypothesis; this is subsection (3) of section 120.
If you are then satisfied that the most likely primary site of the veteran’s carcinoma was the lung, then you’ll have to use those magic words by introducing section 10 subsection (1), which is that `we are satisfied beyond reasonable doubt that that’s the position”, so that’s the difficulty with that sentence as it is applied to the operational service period.
The problem that the veteran faced at the Administrative Appeals Tribunal was that it did not rely on the establishment of a reasonable hypothesis in relation to the veteran’s operational service. That’s at 1986, paragraph 6 – on the establishment of a reasonable hypothesis, in relation to the veteran’s operational service, so the respondent would be justified in saying that she chose not to rely on a reasonable hypothesis. The question is, is the tribunal then justified in not making the examination that it is required to do at law?”
It is submitted by the representative of the applicant that the malignant melanoma which caused death was as a result of exposure to solar radiation sunlight during the period of operational service and/or was exacerbated by that service or thereafter during the rest of his further eligible war service.
The ground of appeal which relies upon s 43(2B) of the Administrative Appeals Tribunal Act 1975 is based primarily on the failure of the AAT to explore the whole ambit of the claim that was before it and essentially arises out of the failure to consider the relationship between operational service and the claim.
Respondent’s submissions
After referring to the legislative framework and relevant authorities it was submitted on behalf of the respondent that the application has no substance.
As noted earlier in this judgment the representative of the applicant before the tribunal had specifically indicated that the applicant would not rely upon the establishment of a reasonable hypothesis in relation to the veteran’s operational service. The representative of the applicant before this court has clearly sought to place that matter in issue and suggested that the tribunal was in error in not pursuing that issue. In relation to that issue counsel for the respondent referred me to the following passages from the Full Court Decision in the matter of Grant and Repatriation Commission (1999) 57 ALD 1 as follows:
“17. The AAT is entitled to be guided by the issues that the parties choose to put before it for its consideration: Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 342; Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-9 ALD 647) and is entitled to have regard to the case put: Noble v Repatriation Commission (Fed C of A, Full Court, No 1159/97, 3 November 1997, unreported) at para 16. In Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-5; 29 ALD 1 at 15-6; 109 ALR 30 at 43 Brennan J said of the inquisitorial procedure of the AAT:
Proceedings before the AAT may sometimes appear to be adversarial when the commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the commission, the board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it … The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.
18. An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the `case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15].”
Applying the principles referred to in Grant’s case it was submitted on behalf of the respondent that the fact that the applicant’s representative had disavowed a case related to operational service does not necessarily release the tribunal from the obligation to consider that matter but the obligation would only arise if there was material before the tribunal capable of supporting a connection with operational service.
In applying the relevant principles of law it was submitted by counsel for the respondent that when deciding whether there is a reasonable hypothesis the tribunal may be confronted with a number of options. In the present case where there appears to be general medical evidence that does not point to melanoma and that rather the conclusion is one pointing to the probability of lung cancer, it is submitted that in those circumstances there is no reasonable hypothesis that melanoma was implicated in the death. It is further submitted however that it is necessary to find some factual basis peculiar to the veteran and peculiar to his 18 days of operational service to connect the malignant melanoma to the operational service. It was submitted that if there is no material before the tribunal to raise or point to such a connection when there cannot be a reasonable hypothesis. The decision made by Mrs Ingram’s representative before the tribunal not to run the claim as an operational service reasonable hypothesis case would therefore be entirely justified.
The respondent’s counsel referred me to the Veteran’s Review Board decision following the hearing conducted on 21 July 1995. Specifically I was referred to the following extract which appears at
p. 53 of the Appeal Book:
“In answer to a question Mr Printz said he had no evidence that the veteran experienced sunburn during his 18 days of operational service.
Mr Printz stated that if his submission relating to melanoma was not acceptable then he proposed two reasonable hypotheses concerning the veteran’s operational service viz:
· Carcinoma of the kidney, recalling that the veteran commenced to smoke and drink after he joined the navy in 1964, and
· Carcinoma of the lung based on the known risk factor of smoking.”
It was submitted on behalf of the respondent that whether the veteran commenced to smoke and drink after he joined the navy is irrelevant as he had commenced smoking before any period of coverage under what was the Repatriation Act and now the VE Act.
In support of the submission that there is an absence of any material to connect the smoking habit of the veteran with operational service, I was referred to the statement of Mrs Ingram which was before the tribunal which refers to what I was invited to accept as a pattern of smoking that started not long after Mrs Ingram and the veteran met which would have been shortly after December 1965. Further reference was made to service by the veteran on the vessel `D Atlas’ which sank off Jarvis Bay. Again, the `Atlas’ was not operational service but the increase of smoking attributed to that incident is submitted by the respondent to be one of the factors which tends to reinforce the point made in Mrs Ingram’s statement concerning the smoking history of the veteran and to strengthen the submission made by the respondent that there is an absence of evidence to connect the smoking habit with operational service. In the circumstances it was submitted that the veteran already had a heavy smoking habit before commencing service on the `Vendetta’ to Vietnam for the 18 days of operational service and that the continuation of that smoking habit is not an occurrence but more of a temporal connection. It was submitted therefore that the fact that the veteran continued to consume cigarettes whilst on the `Vendetta’ for 18 days whilst undertaking operational service is quite irrelevant and cannot be used to raise any reasonable hypothesis that the smoking habit is somehow related to his operational service in a causal way.
It was submitted that on a proper reading of the evidence there is simply no material before the tribunal to even raise as an issue the sun exposure. There was no material to point to the possibility that something occurred while the veteran was serving on the `Vendetta’ that affected his smoking habit or that exposed him to excessive sunlight. It was said that in those circumstances the representative of Mrs Ingram before the tribunal made the correct decision when it was decided not to pursue any issue arising out of operational service and on the evidence the tribunal’s acceptance of that manner of dealing with the application was a decision that made good sense and no error of law could arise in the circumstances.
It was submitted that in the circumstances in applying the principles set out in Grant’s case to which I have already referred that in this application the AAT was entitled to be guided by the issues that the parties chose to put before it.
It was submitted by counsel for the respondent that when the tribunal refers to being reasonably satisfied that the primary site of the veteran’s carcinoma was his lung that it was in fact applying the correct standard proof as prescribed by s 120(4).
In relation to the criticism by the applicant’s representative of the tribunal “weighing up” medical evidence, the respondent’s counsel referred me to the decision of Bushell v Repatriation Commission which had also been referred to by the applicant’s representative. I was reminded that the decision is of less significance since the introduction of the Statements of Principles in claims arising under the VE Act. However, it was relevant in this application for the court to consider the following extract which appears at page 414:
“… 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” (13). Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”(14).
But leaving aside cases of those kinds, the cause 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 connexion between the incapacity or death and the service of the 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 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.”
Counsel for the respondent submitted that whilst the above extract is relevant is terms of assessing what is meant to be a reasonable hypothesis, it is not relevant to the tribunal in the present case which did not pursue the issue of operational service and therefore did not need to apply the standard referred to in Bushell’s case.
In summary the respondent as I understand it submits that the fact that Mrs Ingram’s representative did not rely upon the veteran’s operational service in part is an answer to the first ground of the appeal. When combined however with the absence of material which would suggest a connection between the veteran’s smoking and his 18 days operational service does however provide a basis upon which it can be found that there is no error of law. Hence, any failure to correctly apply an appropriate standard of proof in relation to the issue of operational service must also fail. Again, it is submitted that there is no evidence of sunburn or significant exposure to sunlight during the 18 day period of operational service and accordingly there does not appear to be an error of law in relation to ground 2.
In relation to the third ground of appeal reference was made to the medical evidence and the manner in which the case had been presented to the Veterans Review Board. The alleged connection between exposure to sunlight during operational service and the alleged malignant melanoma is a matter which it is said only arose after the case presented to the Veterans Review Board. As indicated, I was referred to the representative Mrs Ingram advising the board that he had no evidence that the veteran experienced sunburn during 18 days of operational service. In essence it was submitted that there was no material before the AAT to point to the possibility of any connection at all between operational service and the death of the veteran.
It was submitted on behalf of the respondent that the reference to the decision of Treloar and Australian Telecommunication Commission (1990) 26 FCR 316 was ill conceived. In that case there was reference to exposure to sun for 14 to 15 years and medical evidence referred to exposure as being “a contributing factor although perhaps … a small one” (see page 319). Whilst accepting that the Full Court in Treloar’s case found that it mattered not that the contribution be large or small so long as the features of the employment did in fact in all truth contribute to the condition complained of, it was submitted by counsel for the respondent that in the present case there was simply no evidence of sun exposure during the 18 days of the veteran’s operational service. There was no medical opinion suggesting the operational service played any role however slight in the development, aggravation or acceleration of malignant melanoma. It was emphasised that the veteran’s service was for 18 days compared with Mr Treloar’s service of 14 to 15 years.
Reasoning
In the present case it is clear that the legislative framework and principles of law which should apply are to a large extent the subject of agreement. As indicated at the commencement of this judgment for the veteran’s death to be taken to have been war caused it would have been necessary to find one of the connections with his 18 days of operational service. The standard of proof as to whether the death was war caused or defence caused (operational service) is found in
s 120(1) and (3) of the VE Act and I rely upon the decision of Byrnes and Repatriation Commission (1993) 177 CLR 564 (See also East v Repatriation Commission (1987) 16 FCR 517).
The standard of proof in relation to a claim to be made arising out of defence service is prescribed by s 120(4) and as indicated earlier in this judgment reliance is placed upon the decision of the Federal Court in Repatriation Commission v Smith (1986) 15 FCR 327.
I accept as stated by the applicant’s representative that the significant issue in the present case is the failure of the AAT to take operational service into account at all.
In my view however whilst the tribunal is able to pursue its task in an inquisitorial manner, it should not necessarily be required to conduct a further investigation into an issue which has been disavowed by representatives of a party and about which there is simply no evidence upon which the tribunal can rely.
In the present case I am satisfied on all the material before me that there was a clear indication to the tribunal that the applicant’s counsel did not seek to rely upon the establishment of a reasonable hypothesis in relation to the veteran’s operational service. In any event I am further satisfied that the decision not to rely upon operational service was well founded. There was no evidence upon which the tribunal could act to suggest that there was any connection between the applicant’s operational service and cause of death even if one were to find in the present circumstances that the applicant’s smoking had led to the carcinoma of the lung because in the present case the tribunal was entitled to find as indeed it did find that on the evidence the smoking habit of the veteran was not attributable to his eligible service let alone not attributable to operational service.
If one were to further make allowance for what is suggested to be a connection between the malignant melanoma, it is clear in my view that again the tribunal had competing medical evidence and at best had before it evidence to suggest that the least likely cause of death was a melanoma. It is to be remembered that the evidence of the medical experts related to observations based upon a renal biopsy shortly before death together with the nature of the spread (metastases) of the carcinoma to other regions in the body and in the light of those findings made observations about exposure to cancer causing factors including smoking, alcohol intake and solar exposure. Even if the tribunal had, despite submissions by the representative of the applicant to the contrary, sought to investigate the effect of operational service and claimed smoking and/or solar exposure, there was simply no evidence in my view upon which the tribunal could rely to usefully draw a conclusion that operational service contributed to what was speculated to be a malignant melanoma.
The tribunal was entitled to find on the medical evidence that the primary site of the carcinoma was in the lung of the veteran and that of all the three possibilities the least likely was a melanoma. It is difficult to see how the tribunal upon finding the cause of death was the lung carcinoma should then enquire as to whether during an 18 day period of operational service there was exposure to sun which may have caused a melanoma which the tribunal had already found was the least likely of all three possibilities to cause death. If the smoking habit and solar exposure did not relate to eligible service it is inconceivable in my view that a tribunal in reviewing the medical evidence and facts could then have concluded in favour of the applicant that there was some connection between operational service and those risk factors leading to the carcinoma of the lung or if it were found to be the fact a melanoma and thereby linked to the cause of death.
I do not think it matters, on the material before me, that the tribunal did not take into account the operational service as to do so would be to reach an entirely different finding about cause of death and to then seek to conclude in the absence of any evidence that there was sun exposure which may have led to the diagnosis of a melanoma. Likewise in the absence of evidence concerning smoking during operational service the AAT could not draw a conclusion connecting that service to the carcinoma of the lung.
I do not accept that the tribunal has applied the wrong test given that it did not focus as it was asked not to do on the aspect of operational service. I accept however that in the circumstances the concession made by the representative of the applicant in not relying upon operational service was in fact well founded and easily understood having regard to the absence of evidence which would assist in establishing a claim based upon any aspect of operational service. Any weighing up of the evidence by the Tribunal in this case could not constitute an error of law accepting as I do the submissions and principles of law referred to by the respondent.
It is important to keep in mind what the court said in Repatriation Commission v Keeley (2000) FCA 532 where at paragraph 15 it stated:
“15. It is to be noted that in respect of veteran who rendered `operational service’, s8(1)(a) contemplates that the link between the death of the veteran and the war service rendered may be no more than temporal. Where s8(1)(a) refers to `an occurrence that happened while the veteran was rendering operational service’, it is not necessary that the occurrence arose out of, or was attributable to, the `operational service’. That is, the connection between the event, or events, and the `operational service’ may be coincidental and not causal. Furthermore, the occurrence may be an event with a direct consequence, such as the suffering of injury or contraction of a disease, or it may be an event, or series of events, with a latent or delayed consequence in which the effect of an injury, or onset of a disease, is not manifested until some later date. Irrespective of when the consequence is manifested, the event, or series of events, would be an occurrence that happened whilst the veteran was rendering `operational service.’”
Applying what the court said in that case and noting the submissions made for and on behalf of the respondent it is my view that in the present case it cannot be said that there is any evidence upon which a tribunal could have relied to connect the operational service with the conditions complained of even if one were to make the concession that there was sufficient material available to conclude that the veteran suffered from a melanoma rather than accept the finding that the cause of death was the carcinoma of the lung.
Given that I can find no error of law and to the contrary have concluded that the tribunal was entitled to consider the application on its merit as it was invited to do by the representative of the applicant, I cannot therefore see any error which may be said to have occurred as a result of any breach of s 43(2B) of the AAT Act.
For those reasons I propose making the following orders:
(1)The appeal be dismissed.
(2)The applicant shall pay the respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 20 December 2001
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