Jones, N.R. v Repatriation Commission
[1993] FCA 194
•05 APRIL 1993
Re: NELLA ROSE JONES
And: REPATRIATION COMMISSION
No. G502 of 1991
FED No. 194
Number of pages - 11
Judicial Review
(1993) 29 ALD 851 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J(1)
CATCHWORDS
Judicial Review - entitlement to war widow's pension - whether Administrative Appeals Tribunal was bound to find a reasonable hypothesis that husband's death was caused by war-caused smoking - failure to make findings of fact - failure of Tribunal to disclose reasoning process involved
Administrative Appeals Tribunal Act 1975 s. 43, 43(2B)
Veterans' Entitlements Act 1980 ss 8, 9(1), 120(3),
Repatriation Commission v Law (1980-81) 147 CLR 635
Telescourt v Commonwealth of Australia (1990) 29 FCR 227
East v Repatriation Commission (1987) 74 ALR 518
Webb v Repatriation Commission (1988) 78 ALR 696
Dornan and Ors v Riordan and Ors (1990) 95 ALR 451
Secretary of Department of Social Security v Hodgson (1992) 108 ALR 322
Repatriation Commission v Bendy (1989) 10 AAR 323
Repatriation Commission v Hughes (1990) 3 AAR 34
Australian Telecommunications Commission v Barker (1990) 12 AAR 490
Soldatow v Australia Council (1991) 13 AAR 462
Australian Postal Corporation v Lucas (1991) 14 AAR 487
HEARING
SYDNEY, 1 July 1992
#DATE 5:4:1993
Counsel and solicitor for the Applicant: Mr A. McInnes QC and Mr A.L. Hill
instructed by Kenneth Harrison
Counsel and solicitor for the Respondent: Mr R. Henderson instructed
by Australian Government Solicitor
ORDER
1. Determination of Administrative Appeals Tribunal of 7 August 1991
set aside.
2. Matter remitted to Tribunal for further consideration in
accordance with these reasons for judgment.
3. Respondent to pay applicant's costs.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
JUDGE1
EINFELD J This appeal from a determination of the Administrative Appeals Tribunal concerns the eligibility of the applicant (Mrs Jones) for a special pension as the widow of a deceased war veteran, Bruce William Jones. The late Mr Jones died on 2 September 1987 at the age of about 73. Mrs Jones' application for the pension, made on 5 November 1987, was rejected by the respondent Commission on 15 January 1988. She applied for review by the Veterans' Review Board on 8 February 1988 but her application was rejected on 9 November 1988. Her appeal to the Administrative Appeals Tribunal was lodged on 8 February 1989 and rejected on 7 August 1991. It is the appeal from this rejection lodged on 4 September 1991 that is now before this Court.
It is another of the many cases coming to the Court which involve the application of the much litigated section 120(3) of the Veterans' Entitlements Act 1980 (the Act). It is also another case demonstrating the extraordinary delays to which veterans' widows are subjected when seeking such pensions. To record that over five years have elapsed since the death of Mr Jones without a final resolution of his 70 year old widow's entitlement is enough to make the point. I do not blame anyone in particular - pressure of work in this Court has made a contribution to the delay as well - although those representing Mrs Jones appear to have acted most promptly at all times. Despite the ignoring of Judges' pleas to this effect in the past, I say again that surely something can be done to address this institionalised injustice.
Prior to his death the late Mr Jones suffered for a number of years from a condition of myelofibrosis, a disorder of the bone marrow which occurs when red blood cells cease to be formed causing a breakdown of the immune system. The condition is chronic and fatal, Mr Jones living for about five years after the disease commenced or was diagnosed. During the course of his illness, Mr Jones had no less than 59 blood transfusions and 90 attendances on his local doctor and haematologist. As the condition progressed, his symptoms expanded and worsened until, in the final stages of his illness, he developed acute lymphocytic leukemia, a recognised complication which occurs in about 20% of cases. For two years prior to his death, Mr Jones is said to have also suffered from cardiac disease.
None of what I have just related was disputed before the Tribunal. The issue there and in this Court concerned the relationship between Mr Jones' death and a condition known as chronic obstructive airways disease (COAD). In this connection, paragraphs (b) and (d) of section 8(1) provide:
Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
...
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
...
(d) in the opinion of the Commission, the death of the veteran was due to ... a disease that would not have been contracted, but for his or her having rendered eligible war service ...
...
See also section 9(1).
It is not disputed that Mr Jones served in the Army between 2 June 1942 and 30 January 1946 including in what is known as operational service. It is also undisputed that before he went into the Army he did not smoke but that he took up heavy smoking while doing service and continued to smoke heavily after discharge. It is agreed that his COAD commenced in about 1957 and that it was caused by his smoking. These are the bases on which it was argued here, and seemingly not disputed, that Mr Jones' COAD was war-caused within the meaning of section 8 or 9.
COAD was not the cause of Mr Jones' death. The question raised at the Tribunal by this case was whether the COAD measurably or identifiably contributed to Mr Jones' death - i.e. whether the death "arose out of" his service within section 8 or 9. By section 120(3) of the Act, it was the duty of the Tribunal to reject the claim only if the material before it did not raise a reasonable hypothesis of this nexus between Mr Jones' COAD and his death. "A reasonable hypothesis is something 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": East v Repatriation Commission (1987) 74 ALR 518 at 534.
The hypothesis of nexus put forward by Mrs Jones was that evidenced to the Tribunal by Dr M.G. Miller, a cardiologist and general physician who specialises in geriatrics and rehabilitation, in a report dated 9 April 1990. This report and the doctor's evidence were based upon a review of the history and records of Mr Jones' war service and health. Among them were writings of his treating doctor, Dr Godwin. Dr Godwin was not personally called to give evidence but the material from him included the death certificate where Dr Godwin had certified that COAD contributed to Mr Jones' death but was not related to the diseases which caused it, myelofibrosis and leukemia. Dr Godwin also wrote in a certificate of 31 January 1989 that Mr Jones had died "as a result of pneumonia secondary to chronic bronchitis and his debilitation with myelofibrosis". The bronchitis, which may for present purposes be treated as indistinguishable from COAD, was said to have been "due to smoking". In a certificate of 19 June 1990 Dr Godwin wrote that the death from myelofibrosis "was accelerated by pneumonia" which "was caused by his myelofibrosis ... and his chronic airways disease". The Tribunal noted that Dr Godwin's notes and other records of Mr Jones' many blood transfusions at Wyong Hospital only infrequently referred to any bronchial symptoms. It resolved some of these inconsistencies or ambiguities by accepting, as accurately recording Dr Godwin's opinion, the contents of the death certificate completed contemporaneously with Mr Jones' death.
On this basis, Dr Miller's view was that the war-caused smoking was a major cause of Mr Jones' COAD and that it was a reasonable hypothesis that it contributed to his death through pneumonia. Dr Miller's evidence included these exchanges and statements:
1. Q. Now, what if any (part) in your opinion did his COAD
... play in his death?
A. I think the best way to put this is, if he went into his fatal illness with healthy lungs one would (presumably, not) have expected him eventually to have died probably of pneumonia but of other possible things such as heart failure, kidney failure, haemorrhage or infection. And infection could be generalised infection or a lung infection. The fact that he went into his fatal illness with an underlying lung disease made it very likely that he would develop bronchial pneumonia, and - but also, although it's impossible to quantify in my opinion make it much more likely that he would die more readily of bronchi-pneumonia and earlier than he would if he had not had underlying unhealthy lungs.
(Appeal book p 75)
2. ... in my experience, I think there's no doubt that
myelofibrosis does not kill you directly, it kills you because it causes a breakdown of the whole body, the system, the body systems; either it damages the kidneys or it damages the heart because of the prolonged anaemia or you get infection. In my experience, the commonest cause of death is infection and the commonest cause of infection is bronchial pneumonia and if you go into the bronchial pneumonia stage with healthy lungs then you have every chance of recovering temporarily whereas if you go into the bronchi pneumonia with unhealthy lungs then the condition is very seriously weighted against you. In that context I think there's an underlying chronic obstructive airways disease must accelerate the cause of death - the time of death.
(Appeal book p 76)
3. Q. Doctor, are you saying then that the chronic
obstructive airways disease, the underlying disease, might mask in some way ... physical signs of pneumonia?
A. Oh, yes.
(Appeal book p 81)
4. Referring to some evidence given by a departmental medical officer
to the Veterans' Review Board concerning the views of Dr Godwin: ... COAD and heart disease were not related to the myelofibrosis, they were co-existing with it obviously. "Pneumonia was the final event and it would be possible to say that the COAD and heart disease were partly related to pneumonia. He would in any event have died from the myelofibrosis regardless of any role of the other diseases." I agree with that last sentence obviously ... It sounds to me, from a medical point of view, quite reasonable. (Appeal book p 83)
5. I think that I can say that there was evidence that he had a lung
disturbance and I can only go back to my original statement which was, if the man had entered this situation with healthy lungs he could - he may well not have been so desperately ill as to have these unknown sequence of events as if he went in with damaged lungs.
(Appeal book p 88)
The alternative view presented to the Tribunal was that of Dr Maurice Joseph, a consultant physician who specialises in respiratory medicine. His view was that Mr Jones had only a mild COAD attributable to smoking and that it played no part in his death. Like Dr Miller, Dr Joseph did not have the opportunity to examine Mr Jones and merely gave evidence on a review of the medical history. Although Dr Joseph agreed that pneumonia was not an uncommon complication of myelofibrosis, he was doubtful of the diagnosis in this case because of the sparse evidence of lung problems. His view was that even if Mr Jones had had pneumonia, the COAD would have played "a very insignificant role in the final illness". He considered that the COAD did not contribute to Mr Jones' death or that "it played no significant part in his death". Another comment was: "If he hadn't had COAD I still think he would have died at about the same time from his myelofibrosis". Likewise: "... if he had not had myelofibrosis he would have lived on for some years and he would not have died of his COAD". And again: "I think he died with COAD but not of COAD".
The Tribunal recorded some parts of these opinions, presumably as possible hypotheses of the nexus of the COAD with Mr Jones' death, but did not state which views it accepted and which it rejected. It emphasised Dr Joseph's movement from the position that the COAD played no part at all in the veteran's death to the view that it played no significant part, but drew no conclusions from the apparent or possible concession. It said nothing about the reasonableness or otherwise of the positions taken by either of the specialist witnesses; in fact it made no comment at all about Dr Miller's opinions. The Tribunal stated its task as being the need to answer the question, required by sections 8 and 9 of the Act, "whether relevant facts exist to provide a causal connection between the war service and the death including, when considering the hypothesis put forward, consideration of the question of contribution to the disease causing the death by a particular factor ...". But it merely concluded (paragraph 15):
However, in considering all the material before it the Tribunal determined that the decision under review be affirmed. The Tribunal is unable to find that the death was related to eligible war service. The Tribunal finds no reasonable hypothesis based upon chronic obstructive airways disease, with chronic bronchitis or pneumonia, upon the evidence presented.
Section 43 of the Administrative Appeals Tribunal Act 1975 requires the Tribunal to give reasons for its decisions. By subsection (2B) of that section, it is provided that:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
The applicant complained that the question posed by the Tribunal, correctly, was never answered, that no or no true findings of fact were made, and that no reasoning process for rejecting the hypothesis put forward by the applicant was disclosed. In these regards, the applicant said, the Tribunal erred in law: Dornan and Ors v Riordan and Ors (1990) 95 ALR 451; Repatriation Commission v Hughes (1990) 3 AAR 34; Australian Telecommunications Commission v Barker (1990) 12 AAR 490; Telescourt v Commonwealth of Australia (1990) 29 FCR 227; Soldatow v Australia Council (1991) 13 AAR 462; Australian Postal Corporation v Lucas (1991) 14 AAR 487; Secretary of Department of Social Security v Hodgson (1992) 108 ALR 322. The applicant suggested that the preference for Dr Godwin's death certificate over his other writings may have been a finding of fact but I think that the Tribunal was only resolving any possible doubt about what Dr Godwin's opinion was. It did not accept the chosen opinion as a fact. Hence the only facts "found" were the matters conceded. Without expert medical evidence, these could provide no basis for the conclusions required by section 120(3) of the Act.
Certainly there was ample evidence to support the hypothesis propounded by the applicant. The concessions that Mr Jones' smoking commenced during his Army service and that the smoking caused the COAD establish a perfectly possible or reasonable basis for attributing the COAD to war service: Repatriation Commission v Law (1980-81) 147 CLR 635; Hughes (above); Repatriation Commission v Bendy (1989) 10 AAR 323. Dr Miller's opinions and Dr Godwin's selected or preferred view both advanced the hypothesis that pneumonia, as a complication of the COAD, contributed to Mr Jones' death. Together, the facts conceded, agreed or not disputed and those doctors' evidence provided a more than adequate basis for holding the hypothesis of causal nexus to be reasonable and "not fanciful or unreal". If then the doctors' evidence was credible, the required hypothesis of causal nexus between the COAD and the death is established.
The applicant argued that the Tribunal was bound to find a reasonable hypothesis and that she was therefore entitled to a declaration from the Court that the respondent is liable to pay her the requisite pension. Regrettably I doubt that the case goes quite so far as yet: Barker (above). It is true that the Act does not involve the comparing of hypotheses: East (above); Webb v Repatriation Commission (1988) 78 ALR 696, but ascertaining if there is available one reasonable hypothesis of nexus.
But however unlikely the possibility is, the Tribunal might have decided that Dr Miller's and Dr Godwin's attributions to COAD of a role in or contribution to Mr Jones' death were not believable or reasonable and might have accepted Dr Joseph's view as the only reasonable hypothesis available. As it made no findings of fact and disclosed no reasoning process, it is not possible to know. As far as I can see, there was abundant evidence of the required reasonable hypothesis but I simply cannot know whether that evidence was accepted. Nor is it permissible for me, judging only questions of law, to make the findings of fact the Tribunal should have made: Barker (above). In view of the applicant's long wait for a resolution of this dispute, it is highly unsatisfactory that she should be subjected to yet another hearing and a further delay in what seems an inevitable finding in her favour but the law apparently requires that course in cases such as this.
I find that the Tribunal erred in law in failing to make findings of fact or disclose its reasons for or the process involved in reaching its conclusion. I set aside the Tribunal's determination but regret that I am bound to remit the matter to the Tribunal for further consideration in accordance with these reasons for judgment. I urge the earliest possible hearing. The respondent will pay the applicant's costs.
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