Law, Nancy v Repatriation Commission

O F AUSTRALIA

WESTERN AUSTRALIA DISTRICT

REGISTRY GENERiiL DIVISION

N o .

W.A-Ci

of 1979

ON APPEAL f r o m the REPATRIATION

REVIEP7 TRIBUNAL

NANCY

LAW

A p p l i c a n t

THE REPATRIATION

COi4MISSION

R e s p o n d e n t

ORDER

JUDGE :

T h e

H o n o u r a b l e

F R .

J U S T I C E

TOOHEY

DATE O F ORDER:

25th March,

1 9 8 0

WERE

MADE

P e r t h i n t h e State o f Western A u s t r a l i a .

THE COURT ORDERS THAT :

1. T h e appeal be allowed.

2 .

T h e

declsion

t h e R e p a t r i a t i o n

R e v l e w

T r l b u n a l

g i v e n

on 1 0 t h September 1 9 7 9 be

s e t aslde.

3 .

T h e clalm by

the A p p l i c a n t as the r r i d o w of

JAElES

LAW

4 1 3 4

for a

pension p u r s u a n t t o t h e provisions

Sec t lon 101

(1)

the

R e p a t r l a t l o n A c t , 1 9 2 0

granted.

4 .

T h e

R e s p o n d e n t

pay

t h e A p p l l c a n t ’ s costs

t h e appeal

t o be taxed.

THIS ORDER w a s ex t rac ted by Mulr Willlams Nlcholson & Co. of

L a w

C h a m b e r s ,

C a t h e d r a l

S q u a r e ,

P e r t h

T e l e p h o n e :

3 2 5 . 0 4 2 1

Reference:

Ji!.W.J. G0174

183.

I N THE FEDERAL COURT OF AUSTRALIA

) )

WESTERN AUSTRALIA DISTRICT REGISTRY ) No. W.A. 8 of 1979

)

GENERAL DIVISION

)

ON APPEAL from the REPATRIATION

REVIEW TRIBUNAL

NANCY

J A W

Applicant

Respondent

25 March 1980

REASONS FOR JUDGMENT

TOOHEY J . :

James Law died on 15 September 1976 .

His

death was due t o carcinoma of the

lung,

with

myocardia1

i n fa rc t ion

contr ibutory cause.

The procedures followed

f o r a pension

His widow sought a war widow's pension under the

provis ions of

the Repatr ia t ion

Act

1920.

In accordance

with the

Act the claim was submitted to

a Repatr ia t ion

Board

for

cons idera t ion and determination.

On 11 January

1977

the

Board

refused the claim,

i t s reasons noted in

summary form as "Death rejected	under	Section	101.	Not
-
r e l a t ed to se rv i ce" .

2 .

Pursuant to s . 2 8 of the Act, something of a

from Caesar to Caesar provision, Mrs. Law appealed

to the Repatriation Commission which

on 19 April 1977

disallowed the appeal, finding that "the reasoning

and conclusions of the Board are consistent with the

1 1

facts of the case

. . .

Under procedures available before amending

Commission's decision from a War Pension Entitlement

Appeal Tribunal. Additional material was placed before

the Tribunal which then referred Mrs. Law's claim to the

legislation in 1979, Mrs. Law sought a review of the reconsideration, the Connnission adhered to its

April

determination

1977.

Mrs. Law appealed against that determination

and pursuant to

s . 4 8 of the Repatriation Acts Amendment

Act

- 1979 (one

of several transitional provisions) that

appeal came before the

nerrly created Repatriation

Review Tribunal as if it were an application for review

under s.lO7VC of the Act.	On 10 September 1979 the
Tribunal concluded:

"After considering all the evidence, the Tribunal is satisfied beyond reasonable doubt, that there were insufficient grounds

for granting the claim, and affirms the decision of the Repatriation Commission".

Section 107VZZH of the Act authorises an appeal

to the Federal Court from

a decision of the Tribunal

"on a question of law". The distinction between that - provision and s.196 of the Income Tax Assessaerit Act

1 9 3 6 ,

authorising an appeal

a Supreme Court from

"any decis ion of the Board that involves

a question of

law",

i s immediately

apparent.

Appeal

t o

the Federal Court

Following

th i s c i r cu i tous rou te

Nrs.

Law

now

appeals t o the

Federal

Court.

The

unsa t i s fac tory

s i t u a t i o n of

such

chain of review procedures

i s

h ighl ighted by

the existence of

r i g h t

of appeal from

th is dec is ion to the

F u l l

Court of

the

Federal

Court,

thence by

special leave

i f no t as

of r igh t to the

High

Court

In order to decide whether the present appeal

i s t r u l y on a question of

law and i f so to assess

i t s

mer i t s

i t i s necessary to

look

a t the Tribunal ' s

reasons

for

decision.

First

however,

I mentlon some

other sect ions of the Repatr ia t ion	Act	that bear	on	the
appeal.

The	Repatr ia t ion Act

The

obligation of the

Commonwealth

of Austral ia

t o pay

pension to the dependants of

member

of the

Forces

i s t o b e

found i n s.101.

It i s a s well

t o s e t

out sub-s . ( l ) with

i t s

i n i t i a l p r o v i s o

and

sub-s . ( lA) .

"101. (1) Upon the

incapacity or death

(a)

any

member of

the

Forces

who

was

employed on

ac t ive serv ice ,

whose

incapaci ty or death has resul ted

from

any

occurrence

that

happened

during

the period

from

the date of his en-

l istment

the

date

the

termination

of	h i s s e r v i c e i n r e s p e c t o f t h a t

en l i s tment ;

o r

4 .

"(b) of any member of the Forces whose

incapaci ty or death has ar isen out

o r i s attributable

t o h i s

war

serv ice .

the

Commonwealth

sha l l , sub jec t t o th i s Ac t ,

b e l i a b l e t o

pay

to the

member,

o r h i s

dependants,

both,

the case

may

be ,

pensions in accordance with Division

Provided that

(a) the incapacity or death of the

member

( i )

i s no t due

the ser

ious defaul

o r

w i l fu l ac t o f t he

member;

( i i )

does not ar ise

from

in ten t iona l ly

s e l f - i n f l i c t e d i n j u r i e s ;

and

( i i i )

does n o t a r i s e

from,

o r from

any

occurrence

that

happened

during

the connnission o f , any ser ious

breach of discipline by the

member,

...

" ( 1 A )

For

the

purposes of

paragraph

(b)

of sub-section

(1) but without affect ing

thk general i ty

thereof ,

the incapaci ty o r

death of a member

s h a l l b e

deemed t o have

a r i sen out of h i s

war

serv ice

i f

i t was

t h e r e s u l t

an accident that

happened

to him

whi l e t r ave l l i ng d i r ec t ly to

o r

from

h i s

place of

employment on war se rv i ce o r was,

in the opinion of the

Commission,

due

t o

accident that occurred or to

disease

or an infec t ion tha t

was

contracted,

and

tha t

would

not have occurred or been

cont rac ted but for h i s be ing

war

serv ice

o r b u t f o r

changes

i n h i s environment

consequent upon h i s be ing

on war

serv ice ."

Section 47 governs

the

determination

applications and appeals

the Comiss ion or

Board.

After

providing in sub-s . ( l ) that these bodies are not

bound

t e c h n i c a l i t i e s , l e g a l

forms

o r

rules of

evidence

and

tha t they sha l l t ake in to account

any

d i f f i c u l t i e s a r i s i n g	from the passage of	time,	the
section concludes:

. I

5 .

"(2)

The

Commission o r a

Board

s h a l l g r a n t

a c la im or appl ica t ion ,

and

the Cormnission

shal l a l low an appeal , unless

i t

i s

s a t i s f i e d ,

beyond

reasonable doubt,

that

there

are

i n s u f f i c i e n t

grounds

for grant ing the claim

or appl icat ion or a l lowing the appeal , as

the case may be".

In a l l re levant respec ts sub-S .

( 2 )

i t now

stands was introduced by the Repatriation Acts

Amendment

Act - 1977,

assented to

June

1977 .

It vas

in opera t ion

when

the appl ica t ion

came

before the Comiss ion for

I <

recons idera t ion in

1978 .

Section

107VG

obl iges the Repatr ia t ion

Review

. .

Tr ibunal to ac t in te rms s imi la r to those in s .47(1) .

In another change of the usual onus,

s . l O 7 W t

cancludes:

"(?>

the completion

of i t s considerat ion

I ,

i n a proceeding on a review -

(-a)

where the decision the subject

the

review was-a decision refusing

claim

or appl ica t ion for pens ion

the Tribunal

sha l l s e t a s ide the dec i s ion un le s s

i t

i s s a t i s f i e d , beyond

reasonable

douht,

that

there were insufficient grounds	f o r	1 1
grant ing the claim or appl icat lon,

I n i t s se l ec t ion of

the expression

"beyond

reasonable

doubt",

the legislature

must

taken

have

borrowed

the language of the criminal

law

with the meaning that

has been a t tached to tha t express ion in tha t f ie ld .

Sections 107VG and 107VH,introduced

by the

Repatriation Acts

Amendment Act 1979 , operated from

l-July 1979

and

governed the decision of the Repatriation

Review

Tr ibunal in the present case .

Reasons for decision

of Tribunal

It is now appropriate to return to the reasons

for decision

o f the Tribunal. So far as relevant

this appeal, they can be

smarised thus:

Mr. Law served in the army

in Australia and

overseas duri’ng World War

11.

He was a prisoner

of the Japanese.

3 .

He ~7as

discharged from service in

1976.

4 .

He died at the age

of 67 from carcinoma of

the lung caused by smoking, with myocardia1

infarction a contributory cause.

5. He did not smoke before he joined the army.

6 .

There was no evidence

as to exactly when he

did start to smoke but by the time

of his

repatriation to Australia

he was smoking

heavily.

Until a heart attack in

1473 he smoked

cigarettes a day. Thereafter he reduced his

smoking.

The evidence did

not establish that Mr.

Law

first smoked while a prisoner

of the Japanese

or that he began smoking because

of conditions

relating to his

war service or imprisonment.

9 . He was neither addicted to smoking nor psychologically incapable of reducing his smoking in the post war period.

!	. I
I

7 .

Questions of

law

The not ice of

appeal sets out

f i r s t the quest ions

of law to be ra i sed

on the appeal

and then

the

grounds

upon

which

the app l i can t r e l i e s .

The	questions of law are said to be whether

the Tr ibunal misd i rec ted i t se l f in bas ing

i t s

decision

i n p a r t on

the f ind ings tha t

( i ) t h e r e

was

evidence to indicate that

M r .

Law

s t a r t e d t o

smoke because of the

conditions

and

demands

o f h i s pa r t i cu la r

war	service or because of the conditions

in genera l per ta in ing to pr i soners

o f

war,

and

( i i ) M r .

Law

was

not psychologically incapable

o f reducing his	smoking	i n t h e p o s t	war
period.

fur ther quest ion

is said t o be whether as

a matter of

law,

the facts properly found

and on

the evidence

before

i t ,

the Tribunal could have been satisfied

beyond

reasonable doubt that there

were

i n s u f f i c i e n t

grounds

for grant ing the claim.

Counsel

for the respondent accepted that

the

quest ion whether the Tribunal misdirected i tself in

basing

i t s

d e c i s i o n i n p a r t

the finding mentioned in

i t em ( i )

was

question of law and also that

the

question

whether the Tr ibunal misd i rec ted i t se l f in bas ing

i ts

d e c i s i o n i n

p a r t

the f ind ing in i tem ( i i ) involved

a question

law.

As to

the

th i rd mat te r ,

counse l

conceded

that the quest ion whether ,

the facts properly

found, the Tribunal could have been satisfied

beyond

reasonable doubt that there

were

i n s u f f i c i e n t

grounds

for

granting

the claim

was a question

law.

Counsel

d i d not concede that

considerat ion of

the evidence

a s d i s t i n c t

from an examination of the facts properly

found was a question of law.

As	to the spec i f ic f ind ings jus t ment ioned ,

counsel for the respondent

may

not have intended to

draw

d i s t i n c t i o n between one being

question of

law

and

the

other

involving a question of

law.

In any event,

the

attack'

made

upon

each finding, insofar as

i t i s based upon

the

a l lega t ion of

a misd i rec t ion , i s an appeal

on a

question

law.. Each concerns the interpretat ion

and construct ion

of s.101.

challenge on

the ground that the Tribunal

could not

d i s t i n c t

from should not have been satisfied

beyond

reasonable doubt that there were insufficient

grounds

for gran t ing the c la im

i s ,

think, an appeal

question of

law both as to facts properly found

and

a s

the evidence,

a t l e a s t i n

far

a s t h e l a t t e r

amounts

t o a submission that there

was no evidence upon which the

Tribunal

could

have

reached

that

conclusion.

See

Lombardo v. Federal

Commissioner

Taxation

(1979)

79 A.T.C.

4542 a t pp.4545,

4547-and

4549.

9 .

In essence the grounds

appeal pick

the

challenged findings

and then asser t that the Tribunal

should have found t,hat

i t

could not be sat isf ied

beyond

reasonable doubt that

M r .

Law's death did not result from

an occurrence that happened during

war

se rv ice o r

d i d

no t

a r i s e o u t

o r was

n o t a t t r i b u t a b l e t o h i s

war

serv ice

o r

t ha t t he re

were

in su f f i c i en t

grounds

for gran t ing

the

im or

appl

ica

ion

This

turn

i s a reference

to the spec ia l	onus appearing	in	s.107VH.
Section 101

Section 101

spec i f i e s

two

s i t u a t i o n s i n

which

the death

of a member of the forces

will

c rea t e a

l i a b i l i t y i n the Cormnonwealth

t o pay

pension to his

dependants.

It i s a s imi l a r though no t

i den t i ca l

dichotomy t o t h a t found i n workmens

compensation

l e g i s l a t i o n .

Broadly

speaking,

para.(a)

s.101(1)

requi res a temporal

connection,

para.(b)

causal one.

As to

the

former,

the

necessary

ingredients

are

( i ) the death of

member

of the Forces

( i i ) who

was

employed on

ac t ive serv ice

( i i i ) whose death resul ted

from an occurrence

(iv) that

happened during the period of his

enl is tment .

A s

t o

t h e

l a t t e r ,

t h e e s s e n t i a l s a r e :

( i ) the dea th

member

the Forces

( i i ) a r i s i n g o u t

o r a t t r i b u t a b l e t o

war

serv ice .

10.

Mr.

Law was a member of the Forces

on ac t ive

serv ice so

that without doubt he

met

t h e f i r s t

two

requirements of para. (a) and the first of para. (b).

The

rea l ques t ions a re .

d i d

h i s d e a t h r e s u l t

from

occurrence

during

enlistment? or,

d i d

a r i s e o u t

o r was

i t a t t r i b u t a b l e t o

war

serv ice?

. The

temporal connection

The

contrast with the language

o f workmens

compensation	l e g i s l a t i o n l i e s i n t h e u s e	of	the	term
I,

occurrence"

rather

than

"accident".

The former I

apprehend

to be of

wider

import

than

the

la t ter .

means

an event or

incident,

something

that

happens

takes place.

It does not

require

the

quali

unexpected-

ness,

of chance or misfortune that

tends

accompany

the term accident.

There

i s

no reason. e i ther as

matter of

language or in terms of the Acts Interpretation

Act

1 9 0 1

s.23,

why

occurrence should not extend to several events

o r inc idents ,

But

fo r pa ra . ( a )

t o ope ra t e

the re

must

have been something capable of description as an

occurrence and i t must have happened during

war se rv ice ,

t h a t

i s

during the period of enlistment.

A t i s sue here

i s the exis tence

and

i d e n t i f i c a t i o n

of that occurrence and

i t s

connection with the death of

the member.

It was only before

the Federal

Court

that

. I

11.

this

aspect

arose

squarely

for

decision.

Before

the

Commission and the Tribunal attention focused

the

causal connection,

i f any,

between

M r . Law's

war

serv ice

and	h i s dea th .

It was

accepted that

M r .

Law

died from carcinoma

the

lung

caused

c i g a r e t t e

smoking.

That

smoking

began

during

war

serv ice and continued

thereafter.

the appl icant ' s submission,

i t was

the formation of

the

habi t of

smoking

t h a t

was

the occurrence during enlistment

and i t was

that occurrence

from which death resulted.

The

appl icant

must ,

th ink , pu t her case tha t

way

f o r Mr. Law's smoking continued for

some 30 years

after discharge.

the evidence

i t was open ne i the r

to the

Commission

nor the Tribunal to have found that

the carcinoma of the lung from which he died

was

the

r e s u l t o f h i s

smoking

during the period of

war

serv ice .

That

i s

s o

whether , as the dea th cer t i f ica te ind ica tes ,

there was

an approximate interval

months between

onset of carcinoma

and death or whether,

as some of

the

evidence

suggested,

the causes

cancer are subt le

and long

acting.

terms

ss.47(2)

and 107VH, the

Commission and the Tribunal was each bound to be

s a t i s f i e d t h a t t h e r e

were

i n s u f f i c i e n t

grounds

f o r

granting the claim

tha t bas i s .

should

make one thing clear. Paragraph (a)

s.lOl(1)

requires an occurrence during the period

of enlistment.

The

inab i l i t y

to p inpo in t w i th

any

precision the date of an occurrence

would

no t be f a t a l

1 2 .

i f it was

evident tha t

i t took place during

the re levant per iod .

The

quest ion here

i s whether

one

can fa i r ly descr ibe the format ion

smoking

hab i t

as an occurrence

a t

a l l .

The

notion of occurrence

i n s.101 embraces

events that have taken place

reason of the conduct

the member concerned.

That

i s

apparent

because

the provisos in

s,lOl(l)

that exclude death

due

t o

se r ious de fau l t o r w i l fu l ac t

o f

the

member,

death

a r i s i n g

from

i n t e n t i o n a l l y s e l f - i n f l i c t e d i n j u r i e s

and death arising

from any occurrence that happened

during the

commission of any serious breach of

d i sc ip l ine by

the member.

I t i s implici t

that

conduct

member

no t f a l l i ng wi th in

any

of these descr ipt ions

is capable

consti tuting

occurrence.

But

the

quest ian posed in the

last

paragraph

s t i l l remains.

I n my

opinion, however broadly thenotion of

occurrence is viewed,

the

formation of a smoking

habi t lacks the sense of an event

o r

inc ident

f o r

tha t mat te r

s e r i e s of

events or

incidents.

Rather

i t

connotes

s e t t l e d

tendency or pract ice , the resul t

of	occurrences , re f lec t ing the s ta te	of	mind	o r way
of	acting of the person concerned.

I f t h a t

i s r i g h t ,

i t i s unnecessary

consider

the extent of connection between formation of the

smoking hab i t and

death

the

member.

Paragraph

(a)

r equ i r e s	t ha t	one	r e s u l t s	from	the o the r .	In	th i s
-

respec t there

i s no

need

t o f i n d

any

causal re la t ionship

between death and war service as required

para . (b)

13.

Given

an occurrence during the period of enlistment,

the only remaining connection

demanded by

the Act

i s

that death resulted from that occurrence.

In my

view

i t i s not appropriate to descr ibe

M r .

Law's death as

resulting from the formation of

smoking habit.

Notwithstanding

Rothwell

Caverswall

Stone Co. Ltd. (1944) 2 All E . R . 350 and Hogan v.

Bentinck

Nest Hartley Collieries

(Orsmers)

Ltd.

(1949)

1 All E . R .

588,

decis ions ci ted

counsel for the appl icant to

emphasise the need to

examine

the chain of causation,

t he f ac t

i s

tha t dea th resu l ted

f rom

the

smoking

i t s e l f

not

from

the hab i t .

The appeal based upon para. (a) of s.lOl(1)

must

f a i l .

The	causal connection

Paragraph (b) of s.lOl(1)

crea tes a l i a b i l i t y

i n t h e

Commonwealth

t o pay

pension where the death

member

has ar isen out of or

i s

a t t r i b u t a b l e t o h i s

war

serv ice .

Thus

the notion of

some causal

re la t ionship

between

death

and

war serv ice i s introduced.

But the

ex ten t

the re la t ionship

i s

not as direct as the

expression "caused

by" might require.

I n Government Insurance Office

of N.S.W. v

R: J .

Green

and

Lloyd

P t y .

L t d .

(1965-1966)

114

C . L . R .

437

, '

the Court

was

concerned with the contents of

a motor

vehicle insurance pol icy in

which

the

words "caused

01:

ar is ing out of the use

the motor vehicle" appeared.

I	n.
i -

1 4 .

a t p.443 Barwick C . J .

commented:

"Bearing

i n mind

the general purpose of

the Act

think the expression "ar is ing

out of" must be taken to require

l e s s

proximate relat

ionship of

the injury to

the re levant use

the vehicle than

i s

r e q u i r e d t o s a t i s f y t h e

words "caused

by"".

A t p.445 Menzies

J . s t a t e d .

"The

words

"arising out of the use" have

no doubt a wid3r connotation than the

words

"caused by

. . . the use".

To my

mind, however,

they do import a relationship between the use

of the vehic le and the in jury	which has	some
causal element i n it".

to the express ion "a t t r ibu tab le

to",

Donaldson J . , i n Walsh v. Rother District Council

(1978)

1 All E.R. 510,

concluded

a t p.514:

11 . . . these are plain Engl ish

words

involving some

causal connection between

the loss of employment and t h a t t o

which

the

loss

i s

said

to be a t t r i bu tab le .

However,

this connection need not be

that of

s o l e ,

dominant,

d i r e c t o r

proximate

cause

and

effect.

contributory causal connection	is qu i t e
su f f i c i en t " .

I n my view, para. (b) of

s.lOl(1) requires no

than that the death

a member

the Forces have

some

causal connection with his

war

service.

the present

ca se th i s

means

some

causal connection between the conditiov,

of carcinoma of the lung

and the member's war

serv ice .

Counsel

for the appl icant placed

some

s t r e s s

upon

s.lOl(lA),

i n p a r t i c u l a r t h a t p a r t

deeming

the

death of

a member to have a r i sen out

of war

serv ice

1 5 .

“ i f i t was

. . . due to . . . a disease

. . .

t h a t was

cont rac ted , and

t h a t would

not have

. . . been cont rac ted but for h i s

being on war

se rv ice o r bu t fo r

changes

i n h i s environment consequent	upon h i s
being on war serv ice“ .

The

deeming provis ion seems

t o have the effect

removing the distinction emphasised

by Denning J . i n

Marshall v. Minister of Pensions

( 1 9 4 8 ) 1 K.B.

106

between a cause and something merely

par t o f the

circumstances i’n

o r on which the cause operates.

The applicant’s submission

was

t h a t M r .

Law

would

not have contracted the disease

carcinoma

b u t f o r

war

serv ice o r changed environment

i n the sense

tha t he would not have taken

up smoking, formed

the

h a b i t of

smoking

the appl icant

would

say , except for

war	serv ice .

The f a t e of

this submission

is bound up with

the

onus

provisions

the

Act,

to which

s h a l l r e f e r

l a t e r ,

Having

found

t h a t Mr.

Law

died from a carcinoma

of the lung caused

h i s

smoking

hab i t s , t ha t he

d i d

no t

smoke before he joined the

army

b u t t h a t

the

time of

h i s r e p a t r i a t i o n

from prisoner of

war

camp he

had

begun

smoke,

the Tribunal

went on

to say tha t

there

was

no ev idence to ind ica te tha t he s ta r ted to

smoke -

“because of the condi t ions

and demands of

h i s p a r t i c u l a r

war

service or because

the condi t ions in general per ta ining to

pr i soners of

war”.

16.

The

Tribunal added

fur ther f ind ing tha t

Mr.	Lav7 "was not psychologically incapable of reducing

h i s smoking in the pos t

war period".

my view tha t

f inding was

i r r e l e v a n t even i f warranted by

the evidence,

about

which

I say nothing.

I f

there was

s u f f i c i e n t

connection between

M r .

Law's death and

h i s war

serv ice

tha t t he

former arose out

o r was

a t t r i bu tab le to the

la t te r ,

the

requi rements

para.(b)

were

met.

Subsequent

events could not destroy that connection.

The

respondent submitted that

the

applicant's

case could

f a l l

wi th in para . (b) on ly i f

" there

was

an addic t ion to c igare t te

smoking hrought about

by the condi t ions

of war

serv ice which

led u l t imate ly

and

i r revers ibly to the lung cancer

from

1 1

which death resulted

. . .

This places too narrow

construct ion

upon

para . (b) of

S .lQl(l)

' and upon S . lOlC1A) .

Evidence of

addict ion

may

be usefu l , whether in re la t ion to c igare t tes

or drugs,

as poin t ing to

some

continuity of

the

process

leading

death.

But,

except

i n the

cases

mentioned

i n

the proviso to

s.101,

the conduct of the

member

himself

i s no t on t r i a l ; i t i s enough to demonstrate

causal

connection between death

and war

serv ice .

Before the Tribunal an attempt

was

made

this , par t icular ly through the wri t ten evidence of

S i r Edward

Dunlop,

medical pract i t ioner with

qua l i f ica t ions both re levant

and impressive and by chance

pr i soner of the Japanese a t the

same

t i m e and

i n t h e

same

camps

as Mr. Law,

The

doc tor

s t ressed

the

pr iva t ions to

which prisoners of

war were subject,

the

17.

re l ie f ga ined

smoking

and

t h e a v a i l a h i l i t y

c iga re t t e s

t o prisoners of

war

t h e i r

r e l e a s e .

spoke too of the several diseases contracted

M r .

Law

during his imprisonment and the

marked

de te r io ra t ion in

h i s h e a l t h a s

r e s u l t .

Such

general deter iorat ion

lessens the eff icacy

immune

surve i l lance ,

na tura l

process by

which the abnormal c e l l s which

form

the stem

c e l l s

malignancy can be

removed

from the body.

I n S i r Edward Dunlop's opinion

"the causes

cancer are suht le

and long

ac t ing

and

...

t he cance r

i t s e l f

may

f o r a long time a focus which

i s not

apparent on c l i n i c a l examination

o r X Ray".

was

n o t i n

pos i t ion to

say v7hy

M r .

Law

i n p a r t i c u l a r

took up smoking nor was there any direct evidence

on the

I	point. This	i s ha rd ly su rp r i s ing a f t e r	a	lapse of	more
than 30 years .

S i r Edward concluded:

"There a r e ample grounds to

th ink tha t

his death could well have

been ei ther

due

t o o r acce le ra t ed

by War

Service".

While

en t i t l ement to

pension

i s i n t h e

end a

mat ter for the

Commission

or the Tribunal (subject

r i g h t s of appeal),

S .48 of the

Act

obl iges a medical

p rac t i t i one r

who

repor t s

claim to express an opinion

on a wide range of matters including the very questions

thaf S .lOl(l)

gives *se

t o .

Therewereavai lab le to the

Commission on

i t s

reconsiderat ion

and

to the Tribunal

appeal reports

from D r .

Perkins and

D r .

Stockler; each

Senior Medical

18.

Officer

(Appeals)

appointed

under

the

Act.

Dr. Perlcins stressed the absence

of any

add ic t ive pa t t e rn in

Mr.

Law's

smoking

h i s t o r y ,

considered that his

smoking hab i t was

one

of personal

choice and concluded, as

mat ter of inference

from

the foregoing as

read the repor t ,

tha t

the

smoking

was not

caused

by war serv ice .

The report does not

advance

the matter

one way

o r the o ther .

choice

i s made

i n a vacuum;

to say tha t

M r .

Law

chose t o smoke

does	not exclude the possible inf luence of condi t ions

associated with war

serv ice .

Dr.	Stockler also emphasised the aspect of

personal choice,

adding

that

there

are

fac tors o ther

than

smoking

to be considered in the

development

carcinomas. For the

reasons

just

iven

the

f i r s t

consideration

does

not

take

the matter

any

fu r the r ; t he

second i s now foreclosed by

the accepted finding of

the Tribunal that

M r .

Law

d i e d from a

carcinoma of

the

lung caused by

h i s

smoking

h a b i t s .

I n t h i s e l u s i v e s t a t e

the evidence

I turn

to the	onus provisions of	the	Act.
Beyond	reasonable doubt

There can be

doubt

t ha t t he r e fe rence in

s.47(2) and s.107YHH-2) t o "beyond reasonable doubt"

i s

reference to the s tandard

proof

i n criminal

1 9 .

proceedings. An attempt

water

down

the

s tandard

i n

comparable English legislation

c7as

f i rmly rejected

i n Judd v. Minister of Pensions

and National Insurance

(1966) 2 Q . B .

580.

In tha t dec is ion

Edmund

Davies J.,

r e fe r r ing

the s

tandard of

proof

in cr iminal

t r ia ls ,

commented

"What

that standard involves has been

expounded with,

i f I may

say s o ,

c l a s s i c a l

c l a r i t y by Denning,

J . ,

i n M i l l e r ' s c a s e

and need not here be reiterated" (at

592).

In Miller v.

Minister of Pensions

(1947)

2 A l l E . R .

372 a t p.373 Denning

3. said:

"That

degree

i s well s e t t l e d .

It need

not reach cer ta in ty , bu t

i t

must

car ry

a high

degree

probabili ty.

Proof

beyond

reasonable doubt does not

mean

proof beyond the shadow of a doubt.

I '

The

law

would

f a i l t o p r o t e c t t h e

community

i f i t admit ted fanciful

p o s s i b i l i t i e s t o d e f l e c t t h e c o u r s e o f

j u s t i c e .

I f

t%e

evidence i s s o s t rong

aga ins t a

man

as to leave only

remote

p o s s i b i l i t y i n h i s f a v o u r

which can be

dismissed with the sentence

"of

course i t

poss ib l e , bu t no t i n the

l ea s t

probable,"

the case i s proved beyond reasonable doubt,

bu t nothing

shor t o f t ha t

w i l l suf f ice" .

The

High

Court has consistently taken the

view

t h a t ,

i n the context

c r imina l

t r i a l s , a t t empt s

explain

the

ime-honoured formula are

l ikely

confuse

j u r i e s .

See

Green

The

Queen

(1971)

126 C.L .R .

and the

cases

there

referred

to .

Hence

the

absence

the Aus t ra l ian au thor i t ies of

any

statement comparable

t o t h a t i n M i l l e r ' s c a s e .

But

what Green's case does

emphasise

i s

t h a t " p o s s i b i l i t i e s

which

a r e i n t r u t h

f a n t a s t i c

o r

completely unreal'' cannot be

the

source

reasonable

doubt.

20.

In the Repatriation Act, both

Commission

and

Tribunal are enjoined to grant an application for penslon

u n l e s s s a t i s f i e d

beyond

reasonable doubt that there are

i n s u f f i c i e n t

grounds

for

doing

so.

That

requires

that

pension claim be acceded to unless the

Commission

o r

Tribunal

i s satisfied,;beyond reasonable doubt,

doubt

which must

no t spr ing

from

p o s s i b i l i t i e s t h a t

are

f a n t a s t i c

completely unreal

that

there

are

insuff

ient

grounds

€or doing

s o .

i s

"heavy burden of disproof" requiring

evidence that

i s "very c l ea r and cogent before

a pension

can be refused"

(Coe v. Minister of Pensions and National

Insurance (1967) 1 Q.B.

238 per Edmund Davies J . a t p.242)

The	appeal upheld

In the present case the Tribunal found that

Mr.

Law

died from a

carcinoma of the lung caused

by h i s

smoking

hab i t s , t ha t he d id no t

smoke

before he joined

the Army

b u t t h a t

the

t i m e of

h i s r e p a t r i a t i o n

from

prisoner of

war camp be had

begun t o smoke.

Ordinar i ly ,

in fer

from

t h i s

temporal

connection

a causal one would,

in the language

of Fowler's Modern

English

Usage,

involve the fallacy

o f

confusing consequence

with

sequence

post hoc ergo propter hoc.

But

t h i s

i s

not an ordinary s i tuat ion;

pension must be granted

unless the Tribunal

i s s a t i s f i e d beyond

reasonable doubt

t h a t t h e r e a r e i n s u f f i c i e n t

grounds

for gran t ing

i t .

21.

The

Tribunal ' s next f inding, that

there

was

no evidence to indicate that

Mr.

Law

s t a r t e d t o

smoke

because of the conditions

and

demands

o f h i s pa r t i cu la r

war	service or because of the condi t ions in general

per ta ining to pr isoners of

r.rar,

placed the onus where

i t

does not

l i e .

A comment by Edmund Davies J. i n

Coe's

case

i s ap t :

'I ... Evidence

t ha t na tu re

does

not

es tab l i sh tha t se rv ice fac tors p layed	no	p a r t ,
but merely decl ines to accept the posi t ive
asser t ion tha t se rv ice fac tors p layed	a

pa r t

i n

caus ing

the d i sease .

such

circumstances there

would have to be an

award on

the bas i s

a t t r i b u t a b i l i t y "

( a t

p . 242) .

The

Tr ibuna l ' s f i na l f i nd ing tha t

M r .

Law

was

not psychologically incapable

reducing his

smoking

in the pos t

war

period was,

for the reasons given, not

re levant .

opin ion ,

the

l igh t of

i t s

f indings

regarding the cause of death

and

the comencement of

smoking,

the Tribunal

should

have

concluded

that

i t

could not be sa t i s f ied

beyond

reasonable doubt that

M r .

Law's

death

d i d no t arise out of or

was

not

a t t r i b u t a b l e

t o h i s war

service; hence

i t

should not

have been

s a t i s f i e d t h a t t h e r e

were

i n s u f f i c i e n t

grounds

for grant ing the claim,

s t r e s s t h a t t h i s

i s

t h e r e s u l t

the onus

pro&sions of the Act to which

f u l l e f f e c t

must

be given.

This

makes

i t unnecessary to determine the

challenge to the Tribunal 's decision based

upon

the

2.2..

evidence

dis t inct

from

the

f ind ings .

i s

enough

to say tha t

when

regard i s had

t o t h e f a c t

t h a t Mr.

Law

died from carcinoma of

the

lung caused

by smoking (and smoking over a number of years,

according to smoking during war $ervice

S i r Edward Dunlop),

that

took

: l

and tha t he was a pr isoner

I ,

of war

i n poor conditions suffering from

a number of

maladies,

s i tuat ion general ly conducive

t o smoking,

there was

c l ea r and

cogent evidence to justify

conclusion

that

there

was no

causal

connection

between war serv ice and death.

Section 107VZZH(4)

and (5) of the Repatr ia t ion

Act

empowers

the Federal Court to hear and determine

th i s appea l

and

t o make

such order as

i t thinks appropriate ,

8 ,

including

power

to remi t to the Tr ibunal .

,To

rem< t

would

fur ther prolong this a l ready

pro t rac ted mat te r

and

i s unnecessary.

There

i s

suf f ic ien t mater ia l to enable

to conclude that

Mrs. Law should

receive a pension. That material

will

enable another Court to dispose of the matter

i f

i t

goes

further.

The

appeal

i s

allowed and the decision of the

Tr ibunal

se t

as ide .

shal l

hear

counsel

the

prec ise

f o r m of

the orders that should be

made.

' I

I certlfy that thls and thc 2 )

prececknz ?aTcs c4.e

a t z u e copy of the

RCdsors

f o r Juilgnxnt h e r c m g f 111s Honour

Kr.

J u s l l c e Took.,

[1980] FCA 35

25 Mar 1980