Nowlan, R.V. v Repatriation Commission

Re: RONALD VICTOR NOWLAN
And: THE REPATRIATION COMMISSION
No. G 63 of 1990
FED No. 418
Veterans' Affairs
30 FCR 369/23 ALD 298

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Veterans' Affairs - whether a reasonable hypothesis as to a causal connection between war service and a veteran's disease - meaning of "reasonable hypothesis" - lumbar intervertebral disc lesion - aggravation of disease - whether reasonable hypothesis established

HEARING

SYDNEY

#DATE 25:7:1991

Counsel for the applicant: S. Burchett
instructed by Stephen Ralph Pinchin Trenches

Counsel for the respondent: Miss Henderson
instructed by Australian Government Solicitor

ORDER

Appeal allowed.

Decision of the Administrative Appeals Tribunal of 3 October 1989 set aside and matter remitted to Tribunal for reconsideration.

Respondent to pay appellant's costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant ("the veteran") rendered operational service in South Vietnam as a member of the Defence Force. On 14 February 1985 a delegate of the Repatriation Commission rejected his claim to have a condition from which he suffered, namely, lumbar intervertebral disc lesion, recognised as being a war-caused disease. This determination was affirmed by a Veterans' Review Board on 16 March 1988. The veteran thereupon sought further review by the Administrative Appeals Tribunal, but the Tribunal affirmed the Veterans' Review Board's decision. This appeal has been brought from the Tribunal's decision.

The essential facts relied upon by the veteran in support of his claim to have his condition recognised as a war-caused disease seem to have been accepted by the Tribunal and can be shortly stated. The veteran claimed that during his initial training as a National Serviceman he injured his back on three separate occasions. These occasions were recorded in his service medical records. Sometime later he served in South Vietnam performing mechanical work, mainly on trucks.
The work included taking cabins off trucks and moving engines and gearboxes from them. It was heavy work and though it did not involve a great deal of lifting, it was necessary for him to get under the trucks and drag gearboxes from them and push them out from under the trucks. Part of the work involved taking wheels off vehicles, including earth-moving equipment. This was also heavy work. The work involved regularly bending and straining. He was often in pain particularly when doing the heavier work. He said he did not seek treatment because he thought nothing could be done and also because he was part of a team and "did not want to let the team down". He complained of back pain in letters written from South Vietnam to his wife. On discharge he made mention of his back condition.
It was common ground that the veteran suffered from the condition of lumbar intervertebral disc lesion. The Senior Member who constituted the Tribunal found that this condition fell within the description of "disease" in the Veterans' Entitlements Act 1986 ("the Act").
Three medical practitioners gave evidence in support of the veteran's case. Dr Earner, the veteran's treating general practitioner, expressed the opinion that it was the particularly heavy work in South Vietnam, following upon the injuries received whilst training as a National Serviceman that had led to degenerative change in the veteran's back which was more severe and earlier in occurrence than if those events had not happened.
Dr Taylor, an orthopaedic surgeon called on behalf of the veteran, gave a report which included the following:
"I feel this man is entirely genuine and is (sic) rather
puzzled that his hard work in Vietnam as a mechanic is not
credited to him as a war disability but this is understandable as
there is no ... record of him having had an incident sufficiently
severe to stop him working. He really has (sic) been in
continuous and rather heavy employment during the time he was in
Vietnam and after his discharge from the Army in the Lismore and
Ballina area when he was driving trucks and doing mechanic's work.
It is difficult to say after this length of time and with the
poor documentation as to his back complaints while in Vietnam to
attribute his back condition materially to his Vietnam service.
However, he had a history of back pain before going to Vietnam and
he worked hard and was reluctant to have time off and I am sure
after a long day working with the heavy trucks and other
mechanical equipment he would have an aching back at night. The
unfortunate thing is that he tended to minimise his complaints and
therefore the records are poor and probably he was in a hurry to
get out of the Army and did not make sure that his back condition
was properly recorded.
I feel he is an honest serviceman and he worked for a
considerable period in Vietnam under high pressure conditions and
he was reluctant to take time off work even when his back was sore
because he did not `want to let the team down'."
Dr Taylor was asked to respond to a number of specific questions put to him by the veteran's solicitors. Some of the answers he gave are not as specific as they might have been.
Q3 Did our client's work in Vietnam create risks or sources of

contribution to or aggravation of his condition greater than or additional to those which would have been encountered by him as a civilian mechanic? If so, what are the relevant factors of the work in Vietnam and is the extra heaviness of the work such a factor?

A It is difficult to say what is the extent to any contribution

to or aggravation of your client's condition by his work in Vietnam. I have discussed this in the body of my report.

Q4 If the client had continued to work as a civilian mechanic

instead of performing the work in Vietnam what difference would you expect in his condition today and since his time in Vietnam in nature, severity and the time of development?

A I feel he worked hard in Vietnam and undoubtedly some

progression in the degenerative changes in his spine would have taken place. If he had continued to work as a civilian taking as an example the work he did after discharge from the Army I feel probably there would not have been so much strain on his back.

Elsewhere in his evidence Dr Taylor said that the work performed by the veteran in South Vietnam must have had some effect on his back as he probably would not have been working as hard in civilian life. He implicated the three incidents which occurred during the veteran's initial training as a National Serviceman as the initiating cause of his back condition and said that the work in South Vietnam would have continued the degradation of the veteran's back condition. He said he could not quantify the increment caused by the veteran's work in South Vietnam but expressed the opinion that such work caused the veteran's back to be worse than it otherwise would have been.
The third medical practitioner called on behalf of the applicant was Dr Randle, another orthopaedic surgeon. His opinion was that the veteran's back condition was the result of degenerative changes due to repetitive minor traumata over a lifetime's work, including the work performed in South Vietnam. He said, in effect, that he assumed the work done by the veteran in South Vietnam had contributed to the overall degenerative condition in his back. He was asked his opinion as to the extent of the contribution. He thought that if it was assumed that the work in South Vietnam was performed over a period of eight months (as was the case) and was twice as hard as normal work, then "possibly it contributes 16 months worth of degeneration". He said he thought the veteran's current symptoms were directly related to the period of service in South Vietnam rather than to accumulated degenerative change.
There is nothing in the reasons given by the Senior Member to indicate that he regarded the views expressed by the medical practitioners as lacking in substance. Certainly, their views were not expressly rejected.
The Repatriation Commission had initially intended to call evidence from Dr Thompson. A written report prepared by him was admitted into evidence without objection upon the basis that he would be available for cross-examination. As matters transpired, Dr Thompson was not available for cross-examination. Counsel for the veteran declined an offer made by the Senior Member to allow Dr Thompson to be cross-examined over the telephone. Because of the doctor's unavailability for cross-examination, the veteran's counsel then objected to the reception into evidence of the report. Thereupon counsel for the Repatriation Commission withdrew the tender of the report and stated that he would not be going into evidence. He did not in fact call any evidence.
However, after the commencement of addresses the Senior Member stated that he intended to have regard to the report, being of the opinion that the proceedings were, as he stated, "more inquisitorial than adversarial". He made it plain in his reasons that he had paid regard to the report but had read it "subject to the caveat that cross-examination of the author was required but not obtained".
The relevant part of Dr Thompson's report was as follows:
"Historically Mr Nowlan did not have any complaints from his
low back prior to his Vietnam service or even training, and it is
hard to understand why a specialist has stated that the 2 episodes
during his training have aggravated his back condition. My
conclusion is that there is no relationship between the above
period of service and the claimed condition, that his degenerative
back condition is the result of a lifetime's effects of general
wear and tear due to his daily activities and that at the age of
40, 8 months in Vietnam carrying out even heavy activities without
any history of injury would be mathematically negligible."
The Senior Member accepted the evidence of the veteran that he had no trouble with his back prior to being called up for National Service and that he injured his back in training prior to proceeding to South Vietnam. He further accepted that the work done by the veteran in South Vietnam was both heavy and more sustained than that to which he had been accustomed in his pre-service occupation. He found the veteran complained of backache while in South Vietnam and that, rather than continue to make complaint, he got on with his job. He said that "no evidence was adduced to any way refute the proposition that the type of work done by (the veteran) in South Vietnam was the heaviest he has experienced, and that during the course of his post-service employment he has suffered no back or other injury."
The Senior Member stated in his reasons that the evidence clearly illustrated that the veteran's back condition had been caused by a lifetime of wear and tear and that the initiating cause was the injuries received by the veteran during National Service training prior to him being posted to South Vietnam. He said that the matter before him therefore resolved itself into " ... a consideration of whether there existed on the facts adduced a reasonable hypothesis to the effect that the Applicant's back is now worse than it otherwise would have been but for the incidences of his (operational) ... service".
The Senior Member did not consider that a case had been made out for a reasonable hypothesis connecting the veteran's back condition with his operational service.
The veteran's claim was based on s.9(1)(e)(ii) of the Veterans' Entitlements Act 1986, which reads as follows:
"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 the
injury suffered, or the disease contracted, by the veteran was
suffered or contracted before the commencement of the period, or
last period, of eligible war service rendered by the veteran, but
not while the veteran was rendering eligible war service; and, in
the opinion of the Commission, the injury or disease was
contributed to in a material degree by, or was aggravated by, any
eligible war service rendered by the veteran, being service
rendered after the veteran suffered that injury or contracted that
disease; but not otherwise."
Section 120 of the Act provides, relevantly, as follows:
"120. (1) Where a claim under Part II for a pension in
respect of the incapacity from injury or disease of a veteran, or
of the death of a veteran, relates to the operational service
rendered by the veteran, the Commission shall determine that the
injury was a war-caused injury, that the disease was a war-caused
disease or that the death of the veteran was war-caused, as the
case may be, unless it is satisfied, beyond reasonable doubt, that
there is no sufficient ground for making that determination.
(2) ...
(3) In applying subsection (1) or (2) in respect of the
incapacity of a person from injury or disease, or 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:

(a) that the injury was a war-caused injury or a defence-caused injury:

(b) that the disease was a war-caused disease

or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, 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 injury, disease or death with the circumstances of

the particular service rendered by the person."

The reasons which led the Senior Member to reach the conclusion that no case had been made out for a reasonable hypothesis connecting the veteran's back condition to his operational service are encapsulated in the following passages in his decision:
"28. ... As in this matter I am satisfied that the
Applicant's back condition was initiated by the injuries received
during pre Vietnam if liability is sought it must be found
pursuant to paragraph 9(1)(e) the aggravation provisions. ...".
"29. The evidence of both orthopaedic surgeons called by the
Applicant is that type of work engaged in by the Applicant in
South Vietnam would have made some contribution to the current
state of his back. Dr Taylor specifically declined to quantify
the increment while stating that he did think that the work in
South Vietnam made the back worse than it otherwise would have
been. Dr Randle regarded any apportionment as arbitrary and
depending upon the type of work done before and after Vietnam
service. To this must be added the evidence of Dr Earner. ...
He also considers that service in South Vietnam has affected the
Applicant's back condition in that it has been more severe and
earlier as a result of that service."
"33. In this Applicant's case the hypothesis that the
incidences of his South Vietnam service aggravated his back
condition may be regarded as consistent with the known facts.
However given the reluctance of the specialists to quantify the
degree of aggravation and what I take to be their total
uncertainty as to the effects of 8 months service in South Vietnam
vis a vis the degeneration occasioned during the Applicant's total
working life, I find that the said hypothesis is not pointed to by
the facts but merely left open, and thus in terms of (i.e. East v
Repatriation Commission (1987) 74 ALR 518) supra cannot be
classed as a `reasonable hypothesis' for the purposes of the
Veterans Entitlements Act 1986."
It was submitted by counsel for the veteran that the Senior Member misdirected himself as to what was required to make out a reasonable hypothesis for the purposes of sub-s.120(3) of the Act. By virtue of sub-s.120(1) the Repatriation Commission was obliged to determine that the veteran's disease was war-caused unless it was satisfied, beyond reasonable doubt, that there was no sufficient ground for that determination. However, the effect of sub-s.120(3) is that the Commission was required to be satisfied, beyond reasonable doubt, that there was no sufficient ground for making that determination if, after consideration of the whole of the material before it, it was of the opinion that the material did not raise "a reasonable hypothesis" connecting the disease with the circumstances of the service rendered by the veteran.
In East v Repatriation Commission (1987) 74 ALR 518 at 533 a Full Court of this Court approved the following exegesis of the expression "reasonable hypothesis" made by a Veteran's Review Board in Stacey (No. V83/0396):
"`A hypothesis may be conveniently defined as: "proposition made
as basis for reasoning, without assumption of its truth;
supposition made as starting point for further investigation from
known facts; groundless assumption":' The Concise Oxford Dictionary.
...
"`The addition of the word "reasonable" would however seem to
imply that what is required is more than a mere hypothesis. In
the opinion of the Board, to be reasonable, a hypothesis must
possess some degree of acceptability or credibility - it must not
be obviously fanciful, impossible, incredible or not tenable or
too remote or too tenuous. For a reasonable hypothesis to be
"raised" by material before the Board, we think it must find some
support in that material - that is, the material must point to,
and not merely leave open, a hypothesis as a reasonable
hypothesis. At the same time, however, a hypothesis may be
reasonable without having been proved (either on the balance of
probability or beyond reasonable doubt) to be correct as a matter
of fact. Were it otherwise, it would no longer be a hypothesis
but would have been elevated to some higher status."
In view of the Senior Member's acceptance of the factual matters relied upon by the veteran it is somewhat surprising that he was of the opinion that the material before him did not raise a reasonable hypothesis connecting the veteran's disease with his operational service. Counsel for the veteran submitted that it appears sufficiently clearly from the Senior Member's reasons that he accepted that the work done by the veteran whilst in South Vietnam aggravated his back condition although to a degree which could not accurately be specified. He argued that quantification of the degree of aggravation was irrelevant, since para. 9(1)(e) of the Act does not require an aggravation to be quantified in any way at all. This submission is persuasive.
It is very difficult to read the Senior Member's reasons without coming to the conclusion that he did indeed accept that there had been some aggravation of the veteran's back condition during his service in South Vietnam. His apparent acceptance of the veteran's own evidence and of the evidence of his doctors leads to the almost irresistible conclusion that he was satisfied that there must have been some degree of aggravation of the veteran's condition caused by his war service. It is true that Dr Thompson concluded in his report that there was no relationship between the veteran's war service and his degenerative back condition. But he did not positively state there was no aggravation of the condition. Indeed his use of the words "mathematically negligible" conveys to my mind that any aggravation of the veteran's back condition may have been caused by the work he performed in South Vietnam, but the aggravation would have been negligible. More importantly, the Senior Member did not find that the degree of aggravation caused by the work performed during the veteran's operational service was de minimus.
Counsel for the Repatriation Commission submitted that the reasons expressed by the Senior Member were consistent with him holding the opinion that the condition of the veteran's back was not aggravated by his war service. In support of this submission, reference was made to the statement in the first sentence of para. 33 of the Senior Member's reasons in which he made the observation that the hypothesis that the incidences of the veteran's war service aggravated his back condition may be regarded as "consistent with the known facts". This statement, so it was submitted, fell short of an acceptance that there had been some aggravation of the condition caused by the veteran's war service. I do not agree. Read in their entirety, the Senior Member's reasons disclose that he accepted that some aggravation of the veteran's back condition was caused by the work performed by him whilst in South Vietnam.

In my opinion, it would have been an error of law for the Senior Member to conclude that the material before him did not raise a reasonable hypothesis connecting the veteran's back condition with his war service merely because the extent of the aggravation of the condition could not be certainly identified. The reference in s.9(1)(e)(ii) is, relevantly, to a disease which is aggravated by war service. As counsel for the veteran submitted, quantification of the degree of aggravation is irrelevant. Yet the reluctance of the veteran's medical witnesses to quantify the degree of war-caused aggravation and their uncertainty as to the extent to which war service caused the back condition to degenerate seem to have been central to the Senior Member's decision. It was because of those matters that he found that the hypothesis advanced on behalf of the veteran, although consistent with the known facts, was nevertheless not pointed to by those facts.
In my opinion this was an erroneous approach. It virtually placed the veteran in the position of having to demonstrate not only that there was some aggravation of his back condition caused by his war service but also the extent to which that aggravation subsisted when he made his claim.
It seems to me to be almost impossible to say that the material before the Senior Member did not raise a reasonable hypothesis connecting the veteran's degenerative back condition with the work which he performed during the course of his war service in South Vietnam. Of course, as was stated in Webb v Repatriation Commission (1988) 78 ALR 696 at 700, an hypothesis which is otherwise reasonable may be dispelled or brought to nought if there is proof beyond reasonable doubt that one of the facts, which, according to the hypothesis is essential to the connection of the disease with the war service does not exist. But there was nothing in the material before the Senior Member in the present case proving beyond reasonable doubt that any of the facts giving rise to the hypothesis did not exist.
In my opinion, it is reasonably plain from a reading of the Senior Member's reasons that his ultimate conclusion that there was no reasonable hypothesis to connect the aggravation of the veteran's condition with his war service was based upon a misapprehension of what was required to establish a reasonable hypothesis in the context of the present case. The inability of the medical witnesses to quantify the degree of aggravation of the veteran's back condition could not justify a conclusion that there was no reasonable hypothesis connecting the aggravation of the condition with the veteran's war service. Accordingly, the matter should be returned to the Tribunal to be further considered in accordance with these reasons.
What I have so far said makes it unnecessary to consider the additional argument advanced on behalf of the veteran that he was denied natural justice because the Senior Member took Dr Thompson's report into account. However, because Dr Thompson's opinion seems to have been at odds, in some respects, with the opinions of the veteran's expert witnesses it will obviously be desirable for him to be available for cross-examination when the matter is reheard if his report is tendered by the Commission's counsel.
The appeal is allowed and the decision of the Administrative Appeals Tribunal is set aside. The matter is remitted to the Tribunal to be reconsidered in the light of these reasons.

[1991] FCA 418

25 JULY 1991