Nicholson, E.M. v Repatriation Commission
[1993] FCA 162
•23 MARCH 1993
Re: EVELYN MARY NICHOLSON
And: REPATRIATION COMMISSION
No. N G421 of 1992
FED No. 162
Number of pages - 14
Veterans Affairs
(1993) 29 ALD 663
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Whitlam J.(1)
CATCHWORDS
Veterans Affairs - qualification for widows' pension - connection with war service - evidentiary onus - reasonable hypothesis - conflict of medical opinion - fact finding - satisfaction beyond reasonable doubt - construction of Veterans' Entitlements Act 1986, s 120 (1),(3).
Veterans' Entitlement Act 1986 s 120(1),(3)
Bushell v Repatriation Commission (1992) 66 ALJR 753
HEARING
SYDNEY, 1 March 1993
#DATE 23:3:1993
Counsel for the applicant: M.B. Smith
Instructed by: Vardanega Roberts
Counsel for the respondent: Alan Robertson
Instructed by: Australian Government Solicitor
ORDER
1. The decision of the Administrative Appeals Tribunal dated 3
June 1992 is set aside.
2. The case is remitted to be heard and decided again by the
Administrative Appeals Tribunal.
3. The respondent is to pay the applicant's costs.
JUDGE1
WHITLAM J. This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"). The applicant is the widow of the late Harry Nicholson ("the veteran"), who died on 3 January 1989.
The applicant had claimed a pension under Part II of the Veterans' Entitlements Act 1986 ("the Act") in respect of the death of the veteran. The respondent determined that the applicant was not entitled to such a pension. That decision was affirmed upon review by the Veterans' Review Board, and the applicant applied to the Tribunal for review of the Board's decision. The veteran had suffered from asthma for many years prior to his death. Before the Tribunal it was common ground between the parties that the veteran's asthma related to and was caused by his "operational service" within the meaning of the Act. This meant, in effect, that the Tribunal's inquiry was concerned with the causal connection between the veteran's asthma and his death.
The manner of determining the applicant's claim is laid down by s.120 of the Act, which provides (so far as relevant) as follows:
"(1) Where a claim under Part II for a pension in respect of... the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that ... the death of the veteran was war-caused, ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3) In applying subsection (1) or (2) ... in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
...
(c) that the death was war-caused ...; ... if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... death with the circumstances of the particular service rendered by the person.
(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, ... decide the matter to its reasonable satisfaction.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that: ...
(c) the death of a person is war-caused ...; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."
In this case the veteran suffered a heart attack and was admitted to hospital where he died 4 days later. A resident doctor of the hospital signed a death certificate stating, in Part I, that the cause of death was cardiorespiratory arrest due to acute myocardial infarction and, in Part II, that asthma was another significant condition contributing to death, but not related to the disease or condition causing it.
At the hearing before the Tribunal the applicant relied upon the evidence of Dr Geoffrey Miller, a consultant physician, which included the following statements in a report:
(1) "I consider that there is a reasonable hypothesis that Mr Nicholson, who certainly had severe asthma over the years before his fatal illness, suffered a pre-existing right ventricular impairment relating to his chronic incapacitating lung disease at the time of his admission to Manly Hospital."
(2) "In view of the severity of Mr Nicholson's asthma, and the association between stress and the precipitation of his asthmatic attacks, I consider it is a reasonable hypothesis to state that the respiratory arrest could have been precipitated by severe bronchospasm due to his asthma."
(3) "... I consider it a reasonable hypothesis to state that the long term steroids could have caused a degree of andreno-cortical suppression which would have interfered with his capacity to cope with the cardiac disturbance from which he suffered."
Dr Miller concluded that report as follows:
"SUMMARY
The late Mr Nicholson suffered severely from asthma for over forty years. His eventual death related to a severe anterior myocardial infarction from which he initially recovered but with an unstable myocardium. He had further chest pain which was likely to be due to further myocardial ischaemia early on 3rd January 1989 and then suffered a respiratory arrest at about 7.25 a.m.
In my opinion, it is a reasonable hypothesis to state that the respiratory arrest was related to acute bronchospasm as a result of his accepted disability of asthma which had been precipitated by the stress of having further myocardial ischaemia.
I also agree with Drs Fairbrother and Gavaghan that the presence of echocardiographic evidence of right ventricular dysfunction could well have been related to his chronic obstructive airways disease due to asthma and this cardiac damage would have contributed to his death."
In his oral evidence Dr Miller referred to a "large dose" of morphine given to the veteran not long before he died and said that morphine "is, in general, contra-indicated in the presence of asthma because morphine causes respiratory suppression." He later gave the following evidence:
"Summing up the various possibilities involved in that death, what in your opinion is the most likely causes, or cause, of his death?---I think the man is having chronic asthma, which was not treated with increased steroids, and therefore he would have a tendency to have low blood pressure and a possibility that he could have had high potassium precipitating arrhythmias, then given morphine which caused respiratory depression and that would have caused further anoxia and he would have stopped breathing - possibly with a severe attack of asthma with bronchospasm which would be very severe. How far does that scenario attribute his death to his asthma?---Considerably. It's a major contributing factor. It's quite impossible to say whether this is more his heart or more his asthma. All I can say is the fact that this man had asthma, died in the way in which is described here, suggests to me that the asthma had a major contribution to his death."
(Where Dr Miller says "described here", he is referring to the clinical notes relating to the veteran's admission to the hospital which were in evidence before the Tribunal.)
The respondent adduced evidence from Professor Ralph Blackett, a cardiologist, who gave reasons why he disagreed with the hypotheses erected by Dr Miller. In cross-examination, he described an hypothesis suggesting that asthma was implicated in the mechanism of the veteran's death as "very fanciful." Professor Blackett went on then to say that Dr Miller's explanation was unlikely to be true, but he agreed with the proposition put to him that it was an opinion which a responsible medical specialist could form different to his own.
The Tribunal concluded that "we find that none of the theories or hypotheses put forward by the Applicant has a rational foundation, and that no reasonable hypothesis has been raised on all of the evidence before us." Counsel for the applicant submits (and counsel for the respondent accepts) that the conclusion so stated represents the opinion of the Tribunal under s 120(3) of the Act. Counsel for the applicant submits that the Tribunal has misconstrued s 120 of the Act.
The true construction of s 120 was explained by the High Court in Bushell v. Repatriation Commission (1992) 66 ALJR 753, which was decided after the Tribunal gave its decision in this case. In dealing with the relationship between s 120(1) and s 120(3), Mason C.J., Deane and McHugh JJ. said (at 775-756):
"Notwithstanding the submission of counsel for the Commission, s 120(3) is not exhaustive of the content of s 120(1). Subsection (3) is concerned with whether "the material" raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of subs (3), as demonstrated by its terms and its history, is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis. ... The material will raise a reasonable hypothesis within the meaning of s 120 (3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. ... However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature." Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous" (East v Repatriation Commission (1987) 74 ALR 518 at 533). But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of 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 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 connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion. If the material does raise a reasonable hypothesis of a connection 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 suggest that subs
(3) is not concerned with the proof or satisfaction of a claim but with whether there is some "material" which calls for determination under s 120(1). The phrase "(i)n applying subsection (1) or (2)" (italics added) in s 120(3) also suggests that s 120(1) is the governing provision.
... ... it is the duty of the Commission under s 120 to decide the claim on the material before it and, unless there is material which raises a reasonable hypothesis connecting the operational service with the incapacity or death, there is nothing upon which the Commission can find that the incapacity or death was war caused within the meaning of s 120(1). But once the material raises such a hypothesis, the operation of s 120(3) is spent and the case falls to be determined in accordance with s 120(1). That is to say, the Commission must determine that the injury etc was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination. The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making (the) determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, "beyond reasonable doubt, that there is no sufficient ground for making the determination" even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist (cf Barca v the Queen (1975) 133 CLR 82 at 105).
Counsel for the applicant submits that the errors in the Tribunal's approach appear from the following passage in its reasons:
"23. The Tribunal notes the reference in the hospital notes to be "Found to be in resp. arrest at 07.30 - no output...". On the basis of the medical evidence the Tribunal finds that this entry does not provide evidence of whether the respiratory arrest occurred before the cardiac arrest, nor does it indicate the respiratory arrest occurred at 07.30. All it indicates is that at that time the Veteran was observed and when observed he was found to be in respiratory arrest. In relation to the respiratory arrest Professor Blackett said - "..this would be a most unusual sequence in people who've had a myocardial infarction. The usual sequence is that the heart fails and then seriatim, there are losses of cerebral function including loss of consciousness, which is the heart's function, and ultimately loss of function of the most brain-stem centres such as the respiratory centre."
24. The Tribunal finds, on the evidence before us that myocardial infarction was the cause of the death of Mr Nicholson and that he had suffered from asthma for about 40 years. A number of possible mechanisms whereby the asthma would have contributed to death have been put before the Tribunal. However, there is a paucity of documentation to indicate the presence, the degree and the severity of the asthma during his terminal illness. Mrs Nicholson, although very helpful, was not able to judge that the Veteran's breathing problems were due to asthma. There is evidence before the Tribunal by way of the clinical findings of basal creps and chest X-ray changes to indicate some degree of left ventricular failure which could at best in part explain the shortness of breath.
25. In respect of Dr Miller's hypothesis that asthma was a possible contribution factor, there is nothing before the Tribunal to indicate the possibility of severe bronchospasm as a terminal event precipitating respiratory failure. The steroid hypothesis has little by way of support. The Tribunal could consider that if asthma had been a problem requiring more than his normal dose of Prednisone, the dosage would have been increased. Professor Blackett did not support his hypothesis. In oral evidence (transcript p 21) Dr Miller stated that in the absence of enough Cortisone there is a rise in potassium. The hospital records indicated the potassium to be low and not high. The question of right ventricular dysfunction (cor pulmonale) was refuted by Professor Blackett who stated it was readily explainable on the basis of coronary artery disease and in any case survival depended ultimately on left ventricular performance.
26. Under cross examination Dr Miller agreed on the balance of probabilities that the infarction involved the right side of the heart as well as the left side of the heart, leaving Dr Gavaghan alone in his contention that there is some evidence of pre-existing chronic lung disorder and right ventricular impairment. The question of the administration of Morphine in the last hour of life when there is obvious extension of the myocardial infarction is irrelevant. ...
28. ...The case file note of respiratory arrest has to be taken in content, as being only part of the terminal event and in no way indicative of asthma as the responsible factor.
29. The Tribunal finds that the Veteran died from an acute myocardial infarction and that the outcome would have been no different irrespective of the presence or absence of his asthma. The possibilities of pre-existing right heart strain consequential of his asthmatic condition, the need for more Prednisone, the effect of Morphine administration, when measured against the extent and progression of the myocardial damage, are de minimus. There is nothing to support the hypothesis that severe bronchospasm precipitated the terminal event.
30. The point was made by Beaumont J in Repatriation Commission v Webb 76 ALR 131 at p 135 in respect of establishing a 'reasonable hypothesis' that -
"...it is a case of determining whether the particular theory has a rational foundation. It is not a question of considering the probabilities or even the possibilities."
I think that in the above passage the Tribunal is dealing, in the main, with whether or not it accepts "the raised facts." As the High Court has now made clear, this is not an exercise that may be undertaken under s 120(3) for the purpose of forming the opinion whether there is sufficient factual material to point to a reasonable hypothesis connecting the veteran's death with his operational service. It seems to me that only the validity of the reasoning connecting the morphine with death properly falls for consideration under s 120(3). The other hypotheses relating to the pre-existing right ventricular impairment, bronchospasm and andrenal insufficiency depend upon raised facts, which the Tribunal must be satisfied beyond reasonable doubt that it cannot accept in order to reject the applicant's claim. In my view, it would certainly have been open to the Tribunal, had it come to consider the application of s 120(1), to be satisfied on the material before it that the raised facts were disproved beyond reasonable doubt. However, that is not what has happened in this case.
Counsel for the respondent submits that in this case the tribunal has simply found that there is not sufficient material within the meaning of s 120(3) to support the hypotheses. I think that this submission must be rejected and that the passage set out above from its reasons makes it plain that the Tribunal has winnowed the material before it in a way not permitted by s 120(3). Counsel for the respondent also submitted that, whereas in Bushell the Tribunal there had not made clear the basis upon which the material before it persuaded it to one view or another, here the Tribunal had given clear reasons for its decision. It is true that in Bushell the High Court did criticize the unsatisfactory nature of the reasons, but it also held that the Tribunal had misconceived the task required of it by s 120.
So too in the present case, the fact that the Tribunal has dealt with the raised facts in the passage set out above as part of its consideration of the question posed for its opinion under s 120(3) raises the inference that it applied the wrong test or was "not in reality satisfied of the requisite matters." The Tribunal did state the standard of proof required under s 120(1) at the very start of its reasons. However, it nowhere repeats that standard when later finding some of the raised facts disproved.
It follows that I consider the Tribunal erred in law. The applicant is entitled to have the Tribunal first consider whether the reasonable hypotheses of connection required by s 120(3) of the Act are raised. Only then can one be sure that the applicant is not being deprived of the benefit of s 120(1) of the Act. Accordingly, I make the following orders:
1. The decision of the Administrative Appeals Tribunal dated 3 June 1992 is set aside.
2. The case is remitted to be heard and decided again by the Administrative Appeals Tribunal.
3. The respondent is to pay the applicant's costs.
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