Liefman and Repatriation Commission

[2000] AATA 455

DECISION AND REASONS FOR DECISION [2000] AATA 455

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V99/887
VETERANS'      APPEALS       DIVISION)  
           Re:     PETER LIEFMAN   
  Applicant
           And     REPATRIATION COMMISSION  
  Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member         

Date:9 June 2000

Place:Melbourne

Decision:      The decision under review is affirmed.   

(sgd) H.E. Hallowes
  Senior Member
VETERANS' AFFAIRS — entitlement —sterilisation by vasectomy — whether disease or injury — whether war-caused — exposure to chemicals — effect of service on decision to undergo vasectomy
Veterans' Entitlements Act 1986 ss.5D, 9, 19, 120 196B

Repatriation Commission v Cooke (1998) 52 ALD 1
Australian Postal Corporation v Burch (1998) 156 ALR 483
Repatriation Commission v Brown (1990) 12 AAR 253
Repatriation Commission v Law (1980) 31 ALR 140
Re Felton and Commonwealth of Australia (1984) 1 AAR 322

REASONS FOR DECISION

9 June 2000           Mrs H.E. Hallowes, Senior Member         
Application

1. Mr Liefman seeks review of a decision of the Repatriation Commission made on 17 January 1997, which was affirmed by Veterans' Review Board ("the VRB") on 2 July 1999, refusing his claim that he is entitled to be paid pension in respect of the disability "sterility". Mr Liefman was advised by a delegate of the Repatriation Commission that his claim for "voluntary sterilization by vasectomy has been refused". The delegate noted that Mr Liefman had operational service in Vietnam between 18 May 1971 and 4 November 1971 as part of his National Service and that the Repatriation Medical Authority ("the RMA") had not issued a Statement of Principles ("SoPs") under section 196B of the Veterans' Entitlements Act 1986 ("the Act") concerning voluntary sterilization by vasectomy.
   Evidence

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"). Mr G. Moore, of counsel, represented Mr Liefman at the hearing and Mr B. Lilley, an officer of the Department of Veterans' Affairs, appeared for the Repatriation Commission.

3. In opening Mr Liefman's case Mr Moore advised the Tribunal that the parties agreed that the claim for disability pension with respect to Mr Liefman's infertility was for a closed period between 6 February 1996 and 1 March 1997.   The documents include an adviCe to Mr Liefman dated 10 January 1983 from Dr A. Polglase, general surgeon, who performed Mr Liefman's vasectomy, that Mr Liefman's post-vasectomy semen analysis indicated that he could now consider himself sterile.   The date 6 February 1996 is the earliest date from which Mr Liefman could be paid pension, being three months before he lodged his claim for disability pension.   On 17 June 1996 Mr Liefman underwent further operation to reverse the effects of his vasectomy.   The date 1 March 1997 is the date by which Mr Liefman is satisfied that the effects of his vasectomy had been reversed.   Mr Liefman now has two children born on 15 February 1998 and 18 June 1999 respectively.  

4. When lodging his claim Mr Liefman advised the Repatriation Commission that:

   . . .
   Following service in Vietnam in 1971, I was made aware of the likelihood that exposure to various chemicals on service could result in the malformation of children born to Vietnam veterans.
   It was for this reason that I sought to have a vasectomy, . . .   .

Mr Liefman gave oral evidence to the Tribunal that, during service in Vietnam, he spent some time in areas which had been defoliated by chemicals.   He had slept on the ground at night and his eyes watered.   On one occasion he experienced breathing difficulties.   His clothing was covered in dust and mud.   He had not turned his mind to any potential risks arising out of those circumstances.  

1. Mr Liefman was married between 1975 and 1981.   There had been no need for him to take action with respect to contraception as birth control measures were undertaken by his wife.   Between 1981 and 1994, Mr Liefman was in a relationship and he became concerned about contraception.   He was apprehensive that, if he had a child, it may suffer birth defects because of his exposure to chemicals in Vietnam.   It was a risk he did not want to take.   His concern was sufficient for him to take action.   He consulted a surgeon and underwent vasectomy.   After forming a new relationship in 1995 he decided to seek a reversal of his vasectomy as he and his partner wanted children.   He told the Tribunal that, by 1996, he had acquired greater knowledge about any potential risk to children if a parent had been exposed to chemicals and he decided to take that risk.   He is now aware of the findings of the Evatt Royal Commission with respect to Agent Orange but, in his view, there remains material which contradicts that presented to the Royal Commission.  
   Legislation

2. Section 19 of the Act provides, so far as relevant:

   19 (1)      Where a claim or application is submitted to the Commission in accordance with subsection 17 (2), the Commission shall:

   (a)consider all matters that, in the Commission's opinion, are relevant to the claim or application; and

   (b)subject to this section, determine the claim as provided by subsection (3) or the application as provided by subsection (4).

   . . .

   (3)          The Commission shall determine a claim for a pension as follows:

   (a)first, the Commission shall determine whether the claimant is entitled to be granted a pension in respect of:

   (i)the incapacity of a veteran from war-caused injury or war-caused disease, or both; or

   (ii)the death of a veteran that was war-caused;

   (b)then, if the Commission determines that the claimant is so entitled, the Commission shall proceed as set out in subsection (5). 

   . . .

It was contended on Mr Liefman's behalf that he fell within paragraph 9(1)(b) of the Act, which provides:

9 (1)        Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

. . .

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

. . .   

Section 5D provides, so far as relevant:

5D (1)      In this Act, unless the contrary intention appears:

. . .
disease means:

(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

(b)the recurrence of such an ailment, disorder, defect or morbid condition;

but does not include:

(c)the aggravation of such an ailment, disorder, defect or morbid condition; or

(d)a temporary departure from:

(i)the normal physiological state; or

(ii)the accepted ranges of physiological or biochemical measures;

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);

. . .
incapacity from a defence-caused injury or  incapacity from a defence-caused disease has the meaning given by subsection (2).
incapacity from a war-caused injury or incapacity from a war-caused disease has the meaning given by subsection (2).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(a)a disease; or

(b)the aggravation of a physical or mental injury.

War-caused injury; war-caused disease; defence-caused injury; defence-caused disease

(2)      In this Act, unless the contrary intention appears:

(a)a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or

(b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence-caused injury or a defence-caused disease;

is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
. . .

Submissions

1. In presenting Mr Liefman's application Mr Moore raised two hypotheses, either that Mr Liefman's vasectomy was a war-caused injury, resulting in incapacity, or that the state of Mr Liefman's mind had resulted in him undergoing vasectomy, a war-caused disease.   In a statement of facts and contentions, lodged on Mr Liefman's behalf, it was submitted that Mr Liefman's sterilisation had not been "truly voluntary" as he had undertaken compulsory (involuntary) National Service and that he perceived the effect of exposure to chemicals as resulting in an increased risk of birth defects in any children he may have.

2. The first issue for the Tribunal to decide is whether Mr Liefman has suffered an injury or disease. If Mr Liefman has suffered an injury or disease, the Tribunal must then decide whether the injury or disease shall be taken to be war-caused and whether pension is payable in respect of incapacity. Subsection 120(4) of the Act provides:

   (4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.  

The Full Federal Court decided in Repatriation Commission v Cooke (1998) 52 ALD 1, at p.4, that ". . . it is quite clear that the issue whether a disease exists is to be decided to the reasonable satisfaction of the commission".

1. In addressing his first hypothesis Mr Moore referred the Tribunal to the decision of the Full Federal Court in Australian Postal Corporation v Burch (1998) 156 ALR 483 where the Full Federal Court considered whether a stroke suffered by Mr Burch was an "injury" under compensation legislation. Mr Moore noted the cases cited by the Full Federal Court. The Full Federal Court said that the word "disease" was used in its statutorily defined sense. Of greater assistance to the Tribunal in considering Mr Liefman's application is the decision of the Federal Court in Repatriation Commission v Brown (1990) 12 AAR 253. That matter involved a veteran whose teeth were ground down to fit a bridge. It was held that the veteran had not suffered an "injury" under the Act because the grinding down of the teeth was a benefit to the veteran rather than a harm suffered by him. Hill J agreed with what was said by Deputy President Hall in Re Felton and Commonwealth of Australia (1984) 1 AAR 322, saying, at p.258:

   "Personal injury", for the purposes of the Act, is an expression capable of including not only accidental physical harm but also physical harm or damage intentionally caused, such as by an assault upon an employee . . . Equally, in my view, it is capable of including the harmful consequences of a surgical operation.

At page 259 in Brown's case Hill J said:

What is, however, inherent in the concept of "injury" as the above dictionary definitions and discussion reveals, is that there be suffered by the person claiming to be injured, some harm.  If one concentrates in the present case only upon the two teeth that have been ground down, it can be said that they have been injured in that there remain of the two healthy teeth but two stumps.   However, the real issue is whether the respondent has suffered an injury:  that issue is not in my view resolved in the present case by asking whether the two teeth have been injured.   The present is an unusual case because when one focuses, as one must, on the respondent, it can be seen that the grinding down of the teeth to provide a foundation for a bridge was a benefit to the respondent rather than a harm suffered by him.   In these special circumstances, which are quite different from those encountered by the Tribunal in Felton's case, it would be a strange use of language to refer to the respondent as having been injured by the grinding down of his teeth.   It is for this reason that I am of the view that the respondent has not suffered an injury and that the Tribunal erred in law in finding that he had.  

Mr Moore said that Mr Liefman's desired outcome was the avoidance of any birth defects in a child, "His was a means to an end", but in achieving his desired end he had suffered a harm which was his inability to father healthy children.   Mr Lilley relied on Brown's case, contending that Mr Liefman did not suffer any harm as the result of his vasectomy.   The Tribunal notes that Mr Liefman's evidence is that he has fathered two healthy children.

1. In the alternative Mr Moore contended that Mr Liefman's infertility was a "disease" under the Act, being a defect or ailment or physical ailment. He sought to distinguish the exclusions in the definition of disease in subsection 5D(1) of the Act, saying that, in the circumstances of this case, "any" temporary departure from:

   (i)        the normal physiological state; or

   (ii)       the accepted range of physiological or biochemical measures;

could only be changed by surgical intervention. Mr Lilley contended that Mr Liefman's condition, following sterilisation, fell within the exclusions in the definition of "disease" in subsection 5D(1) in that Mr Liefman's sterility was a temporary departure from a normal physiological state or was the temporary effect of an extraneous agent, that is, the surgery Mr Liefman underwent.

1. Mr Moore contended that it was Mr Liefman's mental condition, a mental defect, as his thoughts were not soundly based, which led him to the decision to undergo vasectomy.   Mr Moore put to the Tribunal that Mr Liefman's fears were not baseless or groundless.   He noted the report from Dr J. Cooper, consultant psychiatrist, dated 21 November 1997.   Dr Cooper formed the view that it was not views of a fringe group which caused Mr Liefman to undergo vasectomy, rather, it was his Vietnam war experience and associated exposure to chemicals.   Mr Moore relied on the decision of the Full Federal Court in Repatriation Commission v Law (1980) 31 ALR 140 in attempting to establish a causal link between Mr Liefman's infertility and his service where the Full Federal Court said, at p.150:

   In s 101(1)(b) the words "arising out of" require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or "proximate" or by saying it connotes a "real", "sole" or "dominant" cause.
   The Act does not say death which is "caused by" or "results from" his war service phrases which might connote a proximate causal relationship. The expression "arisen out of" is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description "arising out of".

And further, at p.151:
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show "attributability" if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made.                     
Findings

1. The Tribunal is satisfied that Mr Lilley's submission is correct and that Mr Liefman has not suffered any physical or mental ailment, disorder or defect.   The Tribunal finds that Mr Liefman's vasectomy resulted in, as is now known, a temporary departure from his otherwise normal physiological state.   It was only some time after his service when fertility became an issue for him that Mr Liefman introduced an outside agent to take measures to assist him with fertility control.   Mr Liefman was aware of reversal techniques at the time he chose to undergo vasectomy and he accepted some risk that reversal may not have been achieved.   The Tribunal does not accept that Mr Liefman's decision to undergo sterilisation resulted in him having an ailment, disorder or defect.   It was his choice to control his fertility by undergoing vasectomy.   It was a choice he made and he has not suggested that it was a choice he made when he was not thinking clearly.

2. Turning to the issue as to whether Mr Liefman suffered an "injury" and, applying what was said by the Federal Court in Brown's case, the Tribunal has considered whether Mr Liefman suffered a harm or a benefit during the period he was infertile.   The Tribunal finds that Mr Liefman did not suffer harmful consequences as a result of his surgical operation.   It would be a strange use of language to refer to the benefit he sought at the relevant time, to prevent conception, to now be found to be a harmful effect of surgery.   It was his choice to undergo the operation.  

3. The Tribunal finds that Mr Liefman has not suffered an "injury" or "disease" as defined in the Act, but, if it is wrong in that conclusion, it also accepts Mr Lilley's contention that Mr Liefman has not suffered incapacity which would entitle him to a grant of pension under the Act (subsection 19(3)). If his incapacity was his inability to father a child during the period before his vasectomy was reversed, that was the very outcome he sought to achieve and it cannot be an "incapacity" which would entitle him to pension. He may have been incapacitated if he had wished to have a child at the time but that was not his wish. Nor did Mr Liefman give evidence that he "suffered" during the relevant period (subsection 9(1)). He and his former wife and former partner achieved what they set out to do, that is, to prevent having children.

4. For these reasons, the Tribunal will affirm the decision under review and, being satisfied that Mr Liefman has not suffered an injury or disease, the Tribunal will not consider the hypotheses put forward by Mr Moore.

   I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mrs H.E. Hallowes, Senior Member
   (sgd)   Catherine Thomas
             Personal Assistant

   Date of Hearing:  16.03.00
   Date of Decision:  09.06.00
   Counsel for the Applicant:           Mr G. Moore
   Solicitor for the Applicant:           Messrs Ball & Sons

   Solicitor for the Respondent:       Mr B. Lilley, Advocate