O'Brien v Repatriation Commission

[1984] FCA 87

Re: JOHN DAVID O'BRIEN
And: THE REPATRIATION COMMISSION (1984) 1 FCR 472
No. NSW G64 of 1983
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Keely(2) and Fitzgerald(2) JJ.

CATCHWORDS

REPATRIATION - pension - former member of Royal Australian Air Force suffering from essential hypertension - stress suffered during period of war service and development of consequential anxiety neurosis - whether incapacity arising out of war service - Tribunal's failure to provide adequate reasons constituting error of law - statutory standard of proof - Tribunal required to be satisfied beyond reasonable doubt of a negative - proposition that Tribunal should be satisfied beyond reasonable doubt that there is no connection between war service and incapacity unless there is something in material pointing to possibility real as distinct from fanciful of such a connection which is not disproved by other material not a principle of law of general application - "real" possibility of existence of fact may be left open on material although nothing in material pointing to that possibility - nature of statutory process - whether investigatory - difficulty of obtaining satisfaction beyond reasonable doubt in the face of conflicting expert opinions.

Repatriation Act 1920, ss. 23, 24Aa, 24AA(1)(b), 24AB, 24Ab(3)(a), 47, 47(2), 48, 101, 101(1)(b), 101(1A), 101(2)(b), 107VG, 107VG(b), 107VH, 107VH(2), 107VZ, 107VZZB

Administrative Appeals Tribunal Act 1975, sub-s. 43(2)

Income Tax Assessment Act 1936, s.190

Repatriation - Entitlement to pension - Applicant suffering from hypertension - Stress suffered and anxiety state developed by applicant during period of war service - Whether incapacity "has arisen out of" or "is attributable to" war service - Rejection of claim by Tribunal - Error of law - Claim to be sustained unless Tribunal able to be satisfied beyond reasonable doubt that there are insufficient grounds for granting claim - Onus of proof - Quality of casual relationship required - Conflict of expert evidence - Nature and operation of statutory process - Repatriation Act 1920 (Cth), ss 47, 101, 107VH.

HEADNOTE

Section 101 of the Repatriation Act 1920 (Cth) provides:

"(1) Upon the incapacity or death -

(a) . . .

(b) of any member of the Forces whose incapacity or death has arisen out of or

is attributable to his war service, the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division 1:

Provided that . . . . "

The applicant served in the Royal Australian Air Force during 1942-1946 but only within Australia. Throughout his war service he suffered stress occasioned by his inability to live with his wife who had serious difficulty in coping with the separation and caring for children in unfavourable living conditions. Concern for his family prevented him from serving overseas which he otherwise felt compelled to do by the attitude of his co-workers in the civilian job to which he wished to return after the war. According to psychiatric evidence, this stress created an anxiety state contributing to subsequent essential hypertension.

After a refusal of his claim by the Repatriation Board and the Repatriation Commission, the applicant appealed to the Administrative Appeals Tribunal which is directed under s. 107VH(2)(a) of the Act to set aside the refusal "unless it is satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim or application".

Despite conflicting expert evidence, the psychiatric evidence in support of the claim was not rejected, however the Tribunal found as a matter of law that the anxiety state developed by the applicant during the period of his enlistment neither arose out of nor was attributable to his war service.

On appeal by the applicant against the Tribunal's findings it was contended by the respondent that claim must be rejected unless, as first step, the material in support of the claim points to a real possibility of a connection between war service and the incapacity which is not then disproved beyond reasonable doubt by other material.

Held (allowing the appeal and granting the applicant's claim): (1) The Tribunal erred in law in concluding that the anxiety state developed by the appellant during his war service neither arose out of nor was attributable to his war service within the meaning of s. 101(1)(b) of the Act. On the material, the Tribunal could not have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim.

(2) (Per Sweeney J.): Regardless of a conflict of expert evidence, where (as in this case) the expert evidence in support of the applicant's claim is not untenable, inherently incredible or manifestly erroneous by other evidence, the Tribunal could not upon the wording of s. 107VH(2)(a) be satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim.

Repatriation Commission v. Law (1981) 147 C.L.R. 635, applied.

(3) (Per Keely and Fitzgerald JJ.): A real possibility of the existence of a fact may be left open by the evidence although there is nothing in the evidence which points to that possibility. A claimant is entitled to succeed unless the respondent proves or disproves, as appropriate, essential issues of fact beyond reasonable doubt.

The proposition that the Tribunal should be satisfied beyond reasonable doubt that there is no connection between war service and the incapacity unless there is something in the material pointing to a real possibility of facts necessary to establish such a connection which is not disproved by other material is, on the authorities and on principle, unacceptable.

Repatriation Commission v. Law (1981) 147 C.L.R. 635, applied.

Lennell v. Repatriation Commission (1982) 4 A.L.N. No. 29; Repatriation Commission v. Bishop (1983) 48 A.L.R. 461; Repatriation Commission v. Compton (1984) 1 F.C.R. 99, Repatriation Commission v. Evans unreported (Federal Court of Australia, Northrop J., 1983) considered.

HEARING

Brisbane, 1984, February 14-17; April 11. #DATE 11:4:1984

APPEAL.

Appeal from the decision of the Administrative Appeals Tribunal affirming the decision of the Repatriation Commission disallowing the applicant's appeal against a decision of the Repatriation Board to disallow claim for a pension under the Repatriation Act 1920 (Cth).

J. E. H. Brownie Q.C. and D. J. Dwyer, for the appellant.

I. McC. Barker Q.C. and J. J. Steele, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Australian Legal Aid Office.

Solicitor for the respondent: T.A. Sherman, Acting Commonwealth Crown Solicitor.

N.M.

ORDER

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal dated 15 March 1983 be set aside and the appellant's claim be granted.

3. The respondent pay the appellant's taxed costs of and incidental to the appeal.

Appeal allowed with respondent to pay appellant's costs.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 15 March 1983 affirming the decisions of the Repatriation Commission ("the Commission") dated 28 October 1975, 27 October 1976, 17 May 1977, 24 November 1977 and 2 June 1978 disallowing the applicant's appeal against a decision of the Repatriation Board to disallow his claim for a pension pursuant to the provisions of the Repatriation Act 1920 ("the Act") in respect of a condition of essential hypertension.

S.101 of the Act provides as follows:

"(1) Upon the incapacity or death -

(a) of any member of the Forces who was employed on active service, whose incapacity or death has resulted from any occurrence that happened during the period from the date of his enlistment to the date of the termination of his service in respect of that enlistment; or

(b) of any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service,

the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division 1:

Provided that -

(a) (b) (c) (d) (e) . . . .

(1AA) . . .

(1A) For the purpose of paragraph (b) of sub-section (1) but without affecting the generality thereof, the incapacity or death of a member shall be deemed to have arisen out of his war service if it was the result of an accident that happened to him while travelling directly to or from his place of employment on war service or was, in the opinion of the Commission, due to an accident that occurred or to a disease or an infection that was contracted, and that would not have occurred or been contracted but for his being on war service or but for changes in his environment consequent upon his being on war service.

(2) Notwithstanding that, in the case of a member of the Forces, who, after his enlistment, served in camp in Australia for at least six months or was employed on active service, the origin or cause of his incapacity or death existed prior to his enlistment, then, if in the opinion of the Commission or a Board -

(a) the incapacity from which the member is suffering or from which he has died has been contributed to in any material degree, or has been aggravated, by the conditions of his war service; and

(b) . . . .

the Commonwealth shall, subject to this Act, be liable to pay to the member or his dependants, or both, as the case may be, pensions in accordance with Division 1.

(3) (4)"

A Full Court of this Court in Law's case 31 ALR 140 (affirmed on appeal by the High Court 147 CLR 635) considered the meaning of the expressions "has arisen out of" and "is attributable to" in s.101 of the Act.

The 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".

The court also said (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."

Aickin J. in Law's case discussed the amendments made to s.47 by Act No. 56 of 1977. He said (at p.642-644):

"Prior to the 1977 amendment, s.47, which had been enacted as s.39B in 1943, was as follows:-

'(1) The Commission, a Board, an Appeal Tribunal and an Assessment Appeal Tribunal, in hearing, determining or deciding a claim, application or appeal, shall act according to substantial justice and the merits of the case, shall not be bound by technicalities or legal forms or rules of evidence and shall give to the claimant, applicant or appellant the benefit of any doubt -

(a) as to the existence of any fact, matter, cause or circumstance which would be favourable to the claimant, applicant or appellant: or

(b) as to any question whatsoever (including the question whether the incapacity from which the member of the Forces is suffering or from which he has died was contributed to in any material degree, or was aggravated, by the conditions of his war service) which arises for decision under his claim, application or appeal.

'(2) It shall not be necessary for the claimant, applicant or appellant to furnish proof to support his claim, application or appeal but the Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal determining or deciding the claim, application or appeal shall be entitled to draw, and shall draw, from all the circumstances of the case, from the evidence furnished and from medical opinions, all reasonable inferences in favour of the claimant, applicant or appellant, and in all cases whatsoever the onus of proof shall lie on the person or authority who contends that the claim, application or appeal should not be granted or allowed to the full extent claimed.'

It will be observed that the onus of proof was placed on the person or authority contending that the claim, application or appeal should not be granted or allowed. In relation to appeals that meant in substance that the onus of proof was placed on the Commission. The nature of the onus was not stated specifically but there can be no doubt that it was the ordinary civil onus, ie that of proving the material facts on the balance of probabilities, but it was an onus which required that degree of proof of a negative proposition. The precise operation of the 'benefit of any doubt' in such a context is not altogether clear, but presumably it meant no more than a doubt as to the balance of probabilities in respect of each of the matters on which entitlement depended.

The amended section inserted in 1977 involved some changes in sub-s (1), including the removal of the reference to the 'benefit of any doubt'. The former s.47(2) was replaced by a new sub-section as follows:-

'The Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal shall grant the claim or application or allow the appeal, as the case may be, unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal.'

Section 12(2) of the 1977 Act provided that the terms of the new s.47(2) applied, whether or not the hearing or consideration of the claims or appeals had commenced before the amendment came into operation.

The significant difference between the old and the new provision is that the standard of proof is specified. The new provision provided that the Commission, Board or Tribunal must be satisfied beyond reasonable doubt of the negative proposition that there were insufficient grounds for allowing the claim or appeal. The new section did not use the expression 'onus of proof' but the fact that the Tribunal was placed under a duty to grant a claim or allow an appeal unless so satisfied is enough to place the onus of proof to the specified standard on the Commission."

It was not in dispute that the provisions of s.107VH of the Act applied to the Tribunal in its conduct of the review. S.107VH provides:

"(1) In a proceeding on a review, the Tribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before the Tribunal in the proceeding that was not before the Commission or the Board but would have been relevant to the making of a decision in the proceeding before the Commission or the Board.

(2) On the completion of its consideration in a proceeding on a review -

(a) where the decision the subject of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or

(b) in any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made.

(3) Where the Tribunal sets aside a decision the subject of a review, it shall substitute for that decision such decision as the Tribunal considers to be in accordance with this Act.

(4) Where the Tribunal does not set aside a decision the subject of a review, it shall affirm that decision."

The test provided for in s.107VH(2)(a) is identical with that in s.47(2).

In the present case there was conflicting medical evidence on the question whether there was a relationship between the applicant's war-time stress or anxiety state and his later essential hypertension. The approach to be adopted to such a situation was considered in Law's case (cited above) by a Full Court of this court which said: (at p.153-154)

"A feature of the evidence was a conflict in the medical opinions of Dr Perkins and Dr Stockler on the one hand and Sir Edward Dunlop on the other. The Commission and, in turn, the Tribunal, appear to have preferred the opinions of Dr Perkins and Dr Stockler. In cases involving onus of proof where the civil standard of proof applies, this may be an acceptable course. Where, however, a Tribunal has to be satisfied beyond reasonable doubt that a particular finding is not open, notwithstanding that it is supported by medical opinion, it is not sufficient to point to contrary medical opinion which is preferred. It is insufficient unless the contrary opinion is such as to destroy the favourable opinion. Here there was no contrary opinion which could support the destruction of Sir Edward Dunlop's opinion. There is simply a difference of opinion.

When all that appears are contradictory medical opinions expressed in written reports by medical practitioners of good repute, in general a finding that one of those opinions is untenable cannot be made unless that opinion is inherently incredible, or the other opinion or the evidence of other witnesses exposes a manifest error in it, or its incredibility appears on examination or cross-examination of its author. Sir Edward Dunlop's opinion was not shown to be untenable: all that was shown was that a different opinion was held by other reputable medical practitioners."

In the High Court, Aickin J, with whom Gibbs CJ, Stephen J and Mason J agreed, said: (at p.650-651)

"The conflict between the material provided by the Commission and that provided by the respondent was, in the end, a conflict of expert medical opinion on the question of whether the cancer was caused by smoking which arose out of or was attributable to war service. The Review Tribunal appears to have preferred the opinion of the Commission's medical officers to that of Sir Edward Dunlop. In a civil court it would be necessary for the judge, or the jury if there were one, to hear oral evidence from the expert witnesses and to resolve any conflect on the balance of probabilities, taking into account the impression given by each expert witness. The Review Tribunal in the present case was in a very different position. In the first place it had only the written reports of the expert witnesses. moreover, it was required to find in favour of the applicant unless it was satisfied beyond reasonable doubt that there were insufficient grounds for doing so. Thus a heavy onus was placed upon the Commission to satisfy the Tribunal beyond reasonable doubt of that negative proposition. Although the medical reports were in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong."

Repatriation Commission v Bishop (1983) 48 ALR 461 at p.468 was cited on behalf of the respondent as authority for the proposition that "while there is no onus on a claimant, there must be something in the material before the Tribunal pointing to a possibility, real as opposed to fanciful, of a connection between death and war service". (See also Repatriation Commission v Compton, Toohey J, unreported, 20 February 1984).

In my respectful opinion, the matter for the decision the Tribunal is best left in words the Act itself, so that the Tribunal should pose for itself the question whether it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. In doing so, it will avoid the difficulties which were pointed out by Windeyer, J. in the Commonwealth v Butler (1958) 102 C.L.R. 465 at 479 where his Honour said:

"On those simple facts the ordinary answer of an ordinary man to the question 'did the death of the deceased result from the occlusion of September, 1955? , would surely be: 'No. He did not die from that occlusion. He died two years later from another occlusion.' But once the simple question is elaborated by attempted para-phrases and explanations of the words 'results from', logical and philosophical difficulties emerge however much judges and lawyers may assert that they are eschewing all philosophical consideration of the chain of causation. Attempted explanations of causation and consequence can, I feel, be as unhelpful and unhappy as definitions of reasonable doubt. In the search for some grounds for isolating a particular event from the totality of circumstances preceding a later event, various adjectives, such as 'direct' 'proximate', 'decisive', 'immediate', 'effective' and 'real,' have been pressed into service to qualify 'cause'. From these there is an easy drift to such term as 'materially contributing factor"

The posing of the question in the words of the Act will not necessarily produce the answer that where the aetiology of a condition from which an applicant suffers is unknown, he must succeed in his claim. Very often such an applicant will succeed, but the state of the evidence, including the state of medical knowledge of a particular condition, may lead to the result that the Tribunal will conclude that, while it cannot be satisfied beyond reasonable doubt of the precise cause of the condition, it may be so satisfied that there was no connection between war service and the condition.

One of the witnesses relied upon by the applicant was Dr Paul. F. Finlayson, a highly qualified and experienced psychiatrist. In his report dated 30 July 1980, he referred to the applicant's enlistment on 20 January 1942 at 28 years of age in the R.A.A.F. and continued as follows:

"He had a young son at that stage and seldom sought medical attention from a Doctor. His only medical attention appears to be an Appendicectomy sixteen years prior to enlistment and a broken bone in his right foot some four years before. He served in the R.A.A.F. in Australia from the 20th January, 1942 until the 1st July, 1946. He was not involved in any overseas service.

AN ANALYSIS OF SERVICE IN THE R.A.A.F. DURING 1942-1946:

Prior to his War Service, Mr. O'Brien was a hard-working Proof Reader at the Sun Newspapers who was thwarted in his desire to enter the printing profession, having lost two training positions because of the Depression and conditions of the time. When forced to survive, hewas enterprising enough to do so by selling eggs and butter on his bike. He only sought medical treatment from a Doctor for essential conditions such as Appendicitis and a Broken Foot. This is hardly the behaviour of a 'Dependent Hypochondriac'.

During his four and a half years service in the R.A.A.F. he attended sixty-eight sick parades and thirty-eight medical examination. This is clearly a dramatic change in his attitude towards seeking medical advice. It is also directly related to his War Service as it did not occur prior to war service.

An examination of his records indicate that frequent references were made during his medical examinations and sick parades to his problems being on a functional or on a neurotic nature. In short, he was a man who became acutely anxious during his War Service. In addition, whilst he began his War Service normotensive (Blood Pressure 110/70), he finished with a Blood Pressure of 140/96. This Blood Pressure recording is clearly high. A Blood Pressure reading taken by me on the 14.7.80, indicates that despite the present treatment he is having, his blood pressure can still be high (B.P. 180/110)."

Dr Finlayson went on to outline "the nature of the anxiety during war service" as follows:

"Mr. O'Brien was clearly exposed to a factor or factors during his War Service which changed his emotional and physical states. This change has continued since his War Service.

On examination, Mr. O'Brien is a very conscientious man and I would agree with Dr Clement's opinion (a Psychiatrist) on the 11.9.61 that Mr. O'Brien is Obsessional. I would further state that he is a Compulsive as well as Obsessional. That is, he is formal, meticulous and has a strong drive to do the correct thing.

During his War Service, Mr.O'Briens wife became emotionally distressed. She became pregnant again, found her accommodation most unsatisfactory and informed Mr. O'Brien of her plight. Her condition became so critical that whilst living in a rented room in Kings Cross in her pregnant state, she wrote a letter to him threatening to commit suicide by jumping off the Gap. Mr.O'Brien became caught in the bind of loyalty and support to his wife and what he should do for his country as an enlisted member of the R.A.A.F.

So great was his desire to do overseas War Service that he enrolled in a Turner's Course. His plan was to work as a Turner on the Navy Ships, but this ambition foundered when the 'workshops for the R.A.A.F. planes were going to be on the Cruisers. However, the Navy changed their minds they probably decided they could look after their own planes and did not need the R.A.A.F.'

In summary, Mr. O'Brien was caught in an emotional entrapment. On one hand, he wanted to complete his War Service, preferably with overseas experience. On the other hand, his wife was becoming severely depressed and expressing suicidal ideas because of her pregnancy and poor living accommodation. Finally, he was aware of the nature of his work situation and the attitude of his superiors, there. This latter became a significant factor when he returned to Associated Press after the War as a Proof Reader. So anxious did he become about not completing his overseas experience that he took a demotion in a clerical position and avoided contact with his previous superiors."

The reference to his work situation and the attitude of his superiors related to the fact that the senior staff in the proof reading department of the Sun Newspaper were World War 1 veterans and the person in charge was before Mr. O'Brien's enlistment and after his return to the newspaper highly critical of men who had not served overseas.

Dr Finlayson reached the following conclusions:

"1. Mr. O'Brien has essential Hypertension which requires treatment. My examination of him on the 14.7.80 indicated that even despite treatment Hypertension was still present.

2. Mr. O'Brien is aware of the emotional and physical changes which have occurred to his well-being both during and since War Service. Because of his Obsessive-Compulsive personality, he is very sensitive to the fact that he did not have Overseas Service during the War. I have attempted to reassure him this change in his state is not of his conscious doing in order to lessen the effect of cross examinations and publicity of this hearing being detrimental to his health.

3. When one considers this man's history in a longitudinal manner I have no doubt that the anxiety of the kind suffered by him was attributable to the condition of his War Service.

4. His anxiety state developed during War Service and there was evidence during War Service that his blood pressure was capable of reaching Hypertensive levels. Not withstanding the fact that the nature of stress as presently understood is debated, I would have to regard this man's anxiety state and Hypertension as having at least some common causal factors.

5. During his Service in the R.A.A.F., he was clearly in a state of conflict between his duty to his family and his duty to his country. Although the situation was resolved to some extent by his Service being carried out in Sydney and his contact with his wife and children maintained this was at the great expense of not doing Overseas Service. As a result he has adopted a behaviour pattern whereby illness was for him the unconscious solution for his stress. It theefore becomes possible that such a pattern would have contributed to essential Hypertension.

6. Although his father died of heart disease at the age of 60 years there is no evidence that there is a genetic factor in the aetiology of essential Hypertension in his family. I do not regard the genetic basis as being of great significance in this man's history as it is an unknown factor anyway, and even if present the anxiety and 'stress' he suffered during his four and a half years with the R.A.A.F. would bethe major factor in potentiating the development of Hypertension.

7. As the nature of stress is debated, an attempt to directly implicate it in the role of Hypertension will always be at least debated and probably refuted. It is for this reason my explanation of the genesis of Mr. O'Brien's Hypertension has been based on facts known about him and events which are known to have occurred during his War Service. This has led me to believe that War Service directly contributed to his Hypertension."

The Tribunal made no criticism of Dr Finlayson's qualifications or of his evidence, but it found as a matter of law that the factors which he relied upon as producing stress and anxiety state could not be said to have arisen out or to be attributable to war service. They agreed that some of the factors mentioned by Dr Finlayson were also identified by the other medical practitioners whose evidence or reports were before them.

In my opinion the Tribunal erred in concluding that the anxiety state developed by the applicant during the period of his enlistment neither arose out of nor was attributable to his war service within the meaning of s.101(1)(b) of the Act. The applicant's enlistment led to his loss of freedom of choice and in particular the right to choose where he worked and lived.

The tensions which Dr Finlayson noted arose out of or were attributable to the applicant's war service and the Tribunal was in error in holding to the contrary.

The Tribunal made the following findings:

"1. The applicant between 20 January 1942 and I July 1946, both dates inclusive, was a member of the Forces on war service.

2. The applicant experienced a period of suppressed hostility before and after the period of his war service induced by circumstances at his work.

3. Applicant developed during or after his period of war service an anxiety neurosis.

4. The cause of this anxiety state was some or all of the following, viz., having a wife with a young child, then having a wife who became pregnant; in what were said to have been unfavourable living conditions; having a wife who depended a lot on him; having a wife who was unable to obtain suitable support systems for herself within the community or reasonable accommodation; having a wife who was threatening to jump over the Gap; having a wife who was experiencing stress and he was removed from it; then having a will to go overseas and living in the bind of his wife wanting him near her; preoccupation with what he conceived to be the attitude of his colleagues at work; and with the question of overseas service.

5. If the applicant developed or there was aggravated an existing condition of anxiety state during or after the period of his war service, it did not arise out of nor was it aggravated by nor attributable to his war service within the meaning of that expression in the Act s.100.

6. On 12 December 1974 the applicant was diagnosed as having hypertension.

7. The applicant's hypertension arose out of or was developed by reason of constitutional factors.

8. Any stress which may have aggravated the applicant's anxiety neurosis or aggravated or contributed to the development of his condition of hypertension did not arise out of nor was it attributable to his said war service.

9. The applicant's incapacity from his condition of essential hypertension did not arise, was not attributable to and was not aggravated or accelerated by his war service."

Immediately following these findings it went on to say:

"On a consideration of all evidence and submissions, we are satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim or application of the applicant."

The Tribunal was satisfied that the applicant developed "during or after the period of his war service an anxiety neurosis", and went on to adopt amongst the causes of his anxiety state the factors which had been relied upon by Dr Finlayson. Its finding that his anxiety state neither arose out of nor was attributable to his war service was based upon its exclusion of the factors relied upon by Dr Finlayson.

In the light of Dr Finlayson's evidence, the Tribunal could not properly have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The other medical evidence did not destroy Dr Finlayson's opinion. His opinion was not untenable or inherently incredible, nor was aany manifest error in it exposed by the other medical evidence. All that was shown was that a different opinion was held by other reputable medical practitioners. It was conceded by other medical witnesses that the opinion that stress may be a cause of the development of essential hypertension was a respectable one.

The Tribunal's exclusion from its consideration of the war-time stress factors relied upon by Dr Finlayson also led it into error when it turned to examine the post-war stresses to which he was subjected. It should have regarded him as a person already affected by relevant stress factors who was later subject to further stress, but it did not do so.

I would allow the appeal with costs and order that the applicant's claim be granted.

JUDGE2

On 14 October 1974 the appellant, John David O'Brien, lodged a claim for medical treatment and pension pursuant to the Repatriation Act 1920 ("the Act") in respect of an alleged incapacity of essential hypertension. This appeal from the Administrative Appeals Tribunal ("the Tribunal") has come before the Court almost 10 years after the claim was originally made. The decision of the Tribunal now under appeal was given following a review by the Tribunal of decisions of the Repatriation Commission ("the respondent") pursuant to a request made under s.107VZZB of the Act. Notwithstanding the inadequate drafting of the Act in this as in many other respects, it is not in dispute that the provisions of s.107VH of the Act were applicable, mutatis mutandis, to the Tribunal in its conduct of the review: cf. Repatriation Commission v. Byrne (1981) 40 A.L.R. 296; and Lennell v. Repatriation Commission (1982), 4 A.L.N. No. 29.

Nor is it now in dispute that the appellant does suffer from essential hypertension or that his essential hypertension is a disease within the meaning of sub-s. 101(1A) of the Act. Accordingly, it was accepted that the appellant was entitled to succeed before the Tribunal unless it was satisfied beyond reasonable doubt:

(i) that the appellant's essential hypertension has not arisen out of and is not attributable to his war service (para. 101(1)(b) of the Act); and

(ii) that his essential hypertension has not been contributed to in any material degree or been aggravated by the conditions of his war service (sub-s. 101(2) of the Act).

For the purposes of para. 101(1)(b) but without limiting the generality thereof, an incapacity is deemed to have arisen out of war service if it is due to a disease or an infection that would not have been contracted but for war service or but for changes in environment consequent upon being on war service. No provision of the Act other than s.101 was suggested to be directly material to a definition of the elements of entitlement, although other provisions, for example sub-ss. 47(2) and 107VH(2), were put forward as having a bearing on the proper outcome of this appeal.

The appellant was born on 21 March 1914. On 20 January 1942, he enlisted in the Royal Australian Air Force. His war service was within Australia and not in a theatre of war (s.23 of the Act). There is nothing to indicate any incapacity prior to enlistment, but his personality was such that he was more than normally prone to tension and anxiety.

Although there is some evidence of isolated incidents in the course of his duty during his war service which might have caused the appellant some stress, his duty did not expose him to chronic stress and it was open to the Tribunal on the whole of the evidence and taking into account the conduct of the proceedings by both parties to be satisfied beyond reasonable doubt that the appellant's duties during his war service were wholly immaterial to his essential hypertension. On a reading of the Tribunal's reasons as a whole, we have concluded that the Tribunal should be considered to have so found.

However, the appellant was subjected to other stress during the period of his war service. As a result of this stress, he developed an anxiety neurosis which troubled him throughout his war service which was punctuated by medical consultations for troubles often diagnosed as being functional in origin, and which continued after his war service ceased on 1 July 1946.

The Tribunal held that the appellant's stress during the period of his war service and the consequential anxiety neurosis could not be relevantly connected to his war service (or, perhaps, to the conditions of his war service or to changes in his environment consequent upon his war service) so as to satisfy s.101 of the Act. Although the Tribunal's reasons are far from clear, its conclusion on this aspect of the matter seems to have been dependent on an erroneous view of the operation of s.101 of the Act.

In our opinion, if the appellant's stress during the period of his war service was occasioned by his inability to live with his wife who was experiencing considerable difficulty in coping with her separation from him and caring for young children in unfavourable living conditions and by his inability, in consequence of his family situation, to serve overseas, which he felt compelled to do by the attitude of his workmates in the civilian job to which he wished to return after the war, a sufficient causal relationship existed between the appellant's war service and the stress which caused his anxiety neurosis to satisfy the test prescribed by para. 101(1)(b) of the Act; his stress and his anxiety neurosis were attributable to his war service. We do not wish to add to what was said concerning what is required by para 101(1)(b) by the Full Court in Law v. Repatriation Commission (1980) 31 A.L.R. 140, affirmed (1981) 147 C.L.R. 635. It seems to us far too subtle for the purposes of the Act to submit, as the respondent did, that although the appellant was at the time on war service, his stress and anxiety neurosis were attributable to the war but not to war service.

It is unnecessary to consider the other provisions of s.101 of the Act relied on by the appellant and it seems preferable not to do so, particularly since a number of questions of construction were not fully debated; for example, what constitute changes of environment consequent upon being on war service in sub-s. 101(1A), what are conditions of war service in para 101(2)(b), and whether sub-s. 101(2) has any application except in respect of incapacities which antedated enlistment. It is also unnecessary to deal with the appellant's submission that the Tribunal erred in not acting upon "findings" by Repatriation Boards in 1961 and 1970 that the appellant's anxiety neurosis was attributable to war service. There was nothing pointed to in the Act which gives such "findings" conclusive effect and neither the "findings", payments under them, and/or the appellant's failure to take some course which might have been open to him had the "findings" not been acted upon, with the detrimental consequence that time had passed and evidence and opportunities been lost, could conceivably give rise to an estoppel. The "findings" and the resultant conduct of the parties simply constituted part of the material before the Tribunal which was required to form its own views.

The respondent sought to establish before the Tribunal that no connection exists between the appellant's war-time stress and resultant anxiety neurosis and his essential hypertension so that his hypertension was not attributable to his war service even if his stress during the war and his anxiety neurosis were attributable to it.

Initially, it was the respondent's contention before the Tribunal that the appellant's hypertension is not essential hypertension but is pathological, perhaps renal, in origin. The Tribunal did not accept that theory and, as previously stated, it is not now in dispute that the appellant suffers essential hypertension. Further, the respondent does not question that the Tribunal could not, on the evidence, have been satisfied beyond reasonable doubt that stress is not able to cause or contribute to or aggravate hypertension although there was an unresolved issue upon which there was a conflict of expert evidence concerning whether an anxiety neurosis could have any such effect.

Apart from the possibility that a pathological event may have occasioned the initial appearance of the appellant's hypertension (or increased hypertension) in 1973 when there was a sudden significant increase in his blood pressure level, various other hypotheses were advanced, dissected, and debated. Eight medical experts gave both reports and oral evidence and a number of others gave reports only. At least some of the doctors, including those with strongly conflicting views, were obviously highly qualified and of considerable eminence. The Tribunal made no express selection between their views by way of detailed findings.

One possible theory was that the appellant's hypertension was simply and solely the consequence of the degenerative processes of ageing in one genetically pre-disposed to such an incapacity. Support was sought to be found for this by the respondent in a statement by the Tribunal in a summary of "findings" which it included in its reasons for its decision that the appellant's hypertension "arose out of or was developed by reason of constitutional factors". However, that statement is capable of being read as meaning no more than that the appellant's hypertension was essential not pathological. It is sufficiently clear from the Tribunal's reasons taken as a whole that it was not satisfied beyond a reasonable doubt that stress did not cause, contribute to, or aggravate the appellant's essential hypertension.

Reference has already been made to the appellant's war-time stress and resultant anxiety neurosis. The Tribunal accepted that he suffered further stress in his work situation in the period from 1946 to 1957, at which time he accepted demotion as a means of relief. During these years, the appellant's work situation occasioned him resentment and "suppressed hostility".

There was evidence before the Tribunal that neither the appellant's stress during his war service nor his stress in 1946-1957 bore any relationship to his essential hypertension. On one body of expert opinion, he did not have essential hypertension prior to his sudden severe rise in his blood pressure level in 1973. It would have been consistent with that view, with the rejection of the theory that the hypertension resulted from a pathological event, and with rejection of the existence of any relationship between the hypertension and either of the appellant's periods of stress, an opinion supported by a body of evidence, for the Tribunal to have found that the sudden change in blood pressure level in 1973 was caused by a stressful occurrence at that time and there was evidence of such an occurrence. However, there is nothing in the Tribunal's reasons which could support the conclusion that the Tribunal was satisfied of this beyond reasonable doubt even if such a course was open to the Tribunal.

A number of other possibilities, including at least the following, were available for consideration:

(i) that some direct relationship existed between either or both the earlier periods of stress and the development of the hypertension;

(ii) that some direct relationship existed between the anxiety neurosis produced by the war-time stress and the development of the hypertension;

(iii) that although neither the war time stress nor the resultant anxiety hysteria bore any direct relationship to the development of the hypertension, a relationship did exist between the hypertension and

(a) the stress in the period 1946-1957; and/or

(b) a stressful occurrence associated in point of time with the sudden steep rise in blood pressure level in 1973;

and the war-time stress and/or the resultant anxiety neurosis exacerbated the effect of whichever of the later stresses was material.

The Tribunal did not deal with (iii) adequately, if it dealt with it at all. Reference has already been made to its dealing with (ii) which, so far as can be seen, involved error as to the application of para 101(1)(b) of the Act as we have already indicated. In dealing with (i), the Tribunal recognized the possibility that the stress in the period 1946-1957 may have been connected with the hypertension but rejected the war-time stress, although in doing so it used language which raises concern whether it kept in mind the standard of proof required of the respondent. Further, if the evidence which would justify the exclusion of the war-time stress as a factor connected with the appellant's hypertension were accepted, the 1946-1957 stress could not logically be acknowledged as a possible factor.

Counsel for the respondent frankly acknowledged that the Tribunal's reasons raise serious problems. However, he sought refuge in the Tribunal's summarized "findings" towards the end of its reasons and its earlier detailed discussion of the onus of proof. He submitted that the Court ought not entertain the notion that egregious error had intruded between the discussion of onus and the "findings" and that, accordingly, there being sufficient evidence which might support the Tribunal's decision, the Court should in effect conclude that the Tribunal had accepted that evidence and not only preferred it but rejected all incompatible evidence. What has previously been said reveals some obvious objections to this course, even assuming that it was possible for the Tribunal to be satisfied to the prescribed standard notwithstanding the state of the expert evidence.

But in any event, the submission depends upon attention being concentrated exclusively, or almost exclusively, upon the Tribunal's summarized "findings" and inconvenient portions of its reasons being ignored. Such a course is plainly impermissible. Further, the "findings" in question, or at least some of them, are in substance generalized assertions of ultimate issues, unsupported by any revealed process of reasoning whether in respect of law or of fact. The adoption of the terms of the Act does not necessarily mean that the Act has been applied.

The Administrative Appeals Tribunal Act 1975 (sub-s. 43(2)) specifically requires that reasons including any findings of fact be given by the Tribunal and the manifest object of the Act is that no entitlement under the Act to a pension which is claimed should remain unsatisfied. That legislative policy would be thwarted if inadequacy in the expression of reasons were to disguise any possible errors. In our opinion, this Court in its supervision of the implementation of the Act should regard a failure to comply adequately with the obligation to give reasons as itself constituting error of law, at least when a claim to a pension is rejected: see Smith v. Repatriation Commission (29 March 1983, unreported); cf. Australian Timber Workers' Union v. Monaro Sawmills Pty Ltd (1980) 42 F.L.R. 369, 374, 380; Sullivan v. Department of Transport (1978) 20 A.L.R. 323.

In the present case, the Tribunal's decision fails to expose a satisfactory process of reasoning which led to the rejection of the appellant's claim and contains a reason for concluding that there was error.

In the course of their respective arguments the parties adopted extreme opposing positions in relation to questions of evidence and proof under the Act. These questions also arose in connection with the appellant's contention that the matter should not be remitted to the Tribunal but a determination should be made that the appellant is entitled to the pension claimed. It is not easy to identify how all the rival contentions are material to the present matter. It is, however, clear that there continues to be confusion and doubt with respect to the position where the material leaves a possible issue such as cause of death unresolved. The respondent invited the Court to remove the confusion.

The respondent relied upon a statement by Toohey J. in Repatriation Commission v. Bishop (1983) 48 A.L.R. 461 at p.468 which was cited with approval by Northrop J. in Repatriation Commission v. Evans (unreported judgment delivered 21 December 1983) and has been the subject of further discussion by Toohey J. in Repatriation Commission v. Compton (unreported judgment delivered 20 February 1984). In effect the respondent argued that a claim must be rejected unless there is something in the material pointing to a "real" possibility of each element upon which an entitlement depends which is not disproved beyond reasonable doubt by other material. More particularly, it contends that Mr O'Brien's claim must be rejected because there is nothing in the material pointing to a "real" possibility of a particular identified connection between his war service and his hypertension which is not disproved beyond reasonable doubt by other evidence.

The appellant argued that no such requirement exists. According to the appellant, a claimant is entitled to succeed unless the respondent proves or disproves (as appropriate) beyond reasonable doubt every fact in respect of which an issue exists or may exist, even (it seemed) factual issues which of themselves are incidental or non-essential. The appellant's argument called in question, although not directly, dicta in Lennell's Case. In Lennell, Northrop and Sheppard JJ. said in their joint judgment:

"Before turning to the second submission we should say something of the applicant's submission that in every case where a serviceman died of a disease, the cause of which was unknown, his dependants were entitled to a pension because it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. We would reject this submission because, notwithstanding that the cause may not be known, it may be possible to demonstrate beyond reasonable doubt that the cause could not have been related to war service. . . . We would consider such a general approach to be unhelpful and dangerous. It over-simplifies the problem and seeks to equate the Australian legislation to that in force in the United Kingdom. In our opinion the decisions in England in Judd v. Minister of Pensions (1966) 2 Q.B. 580 and Coe v. Minister of Pensions (1967) 1 Q.B. 238 have no application in Australia."

The third member of the Court, Toohey J. said at p.15 of his reasons:

" . . . To say that the aetiology of a disease is unknown does not mean that logically war service cannot be excluded. In a particular case the cause of the fatal condition may be unknown but on the material available it is possible to be satisfied beyond reasonable doubt that it was not attributable to war service."

In the course of the present argument, analogies were drawn between the obligation of the prosecution and the role of the jury in a criminal trial and the task of the respondent and the role of the Tribunal under the Act, even to the extent of an unconvincing attempt by the respondent to support the statement in Bishop's Case, supra, on the footing that it accords with the proposition that the prosecution need not negative "excuses" of provocation or self-defence unless and until there is evidence upon which those issues arise. Both in subject matter and in principle such a proposition, which may itself raise problems of considerable complexity, seems far removed from the proper construction of the Act and likely to confuse, not elucidate, the present dispute.

Central to the rival contentions advanced by the parties in the present case are the meaning and effect of ss. 101 and 107VH of the Act which materially provide:

"101(1) Upon the incapacity or death -

(a) . . .

(b) of any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service,

the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division 1:

Provided that:

. . . "

"107VH

(1) . . .

(2) On the completion of its consideration in a proceeding on a review -

(a) where the decision the subject of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or

(b) in any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made."

In Bishop, Toohey J. held that the Tribunal had erred in law because it had considered that it was bound in law to allow a claim if the aetiology of an incapacity was unknown. That such a view by the Tribunal involved error is made clear by Lennell. Then, after indicating that any suggestion that a claimant bears any onus "legal or evidential" cannot stand with the High Court's decision in Law, his Honour, at p.466, quoted the following passage from the judgment of Aickin J. in that case at p.651 (of 147 C.L.R.):

". . . 'In so far as the claimant had to prove anything, she had to establish two things, first that the carcinoma from which her husband died was caused by smoking . . . and second that his smoking had arisen out of or was attributable to his war service . . . '"

Toohey J. then continued:

"I do not think that Aickin J. was referring to any onus that lay on the claimant; that would be inconsistent with the rest of his judgment. His Honour was saying no more than that there need be something from which it is possible to infer the requisite connection.

It must be remembered that in Law's Case there was, in the language of Murphy J. at p.413, 'formidable support' for the claimant's case. Hence it was unnecessary to dwell on the notion of a real or rational possibility."

Then, after referring to Byrne's Case and Lennell's Case, Toohey J. went on at the top of p.468:

"In the light of these decisions it may be accepted that, while there is no onus upon a claimant, there must be something in the material before the Tribunal pointing to a possibility, real as opposed to fanciful, of a connection between death and war service."

Law's Case was far removed from Bishop's Case or indeed the present matter. In Law, the proceedings before the Repatriation Review Tribunal had established both the incapacity which had caused death (lung cancer) and the cause of that incapacity (smoking). The dispute centred upon whether the Tribunal could be satisfied beyond reasonable doubt that the deceased's smoking was not connected with his war service. That issue was not left to speculation. There was a considerable body of expert evidence involving conflict of medical opinion. As Toohey J. pointed out at p.466 of Bishop's Case by reference to the judgment of Murphy J. in Law, there was in the evidence "formidable support" for the claimant's case.

We are satisfied that in Law's Case Aickin J. did not intend to convey that, in every case, if at all, "there need be something from which it is possible to infer the requisite connection". The particular passage from the judgment of Aickin J. in which he spoke of proof by a claimant has given trouble on a number of occasions since, especially when it is taken separately, divorced not only from its immediate context but also from other statements made by Aickin J. and the overall tenor of not only his judgment but those of Murphy J. and of the Full Court of this Court in the same case. The qualified comment of Aickin J. quoted in Bishop was made in the course of an explanation concerning what is included in the expression "insufficient grounds" in ss. 47 and 107VH. It was followed by the sentence:

"Section 101(1)(b) and (1A) require no more than that."

Section 101 is, of course, the section which materially defines the grounds of eligibility. As we understand what Aickin J. was saying, the passage in his judgment is not directly concerned with any question of evidence but with the elements of entitlement to a pension under s.101, which are established if not disproved beyond reasonable doubt by the material.

In Law's Case in the Full Court ((1980) 31 A.L.R. 140) the effect of sub-s. 107VH(2) had been dealt with in a joint judgment of Bowen C.J., Brennan and Lockhart JJ. at pp.151 ff. The Court said that the expression "beyond reasonable doubt" bears the same meaning in sub-ss. 47(2) and 107VH(2) as it does in the criminal law although the respective exercises called for may be different because, under the Act the standard is applied to a negative proposition, and it was noted that it is undesirable to attempt to elaborate upon the meaning of the phrase. At p.152, their Honours said:

"The conditions to be fulfilled before a claim or application under s.101(1) may be granted are set out in the sub-section, and the grounds for granting a claim or application are the facts (including the relationships referred to in paras (a) and (b)) which fulfil those conditions. Where there is some evidence of facts which might fulfil the conditions of eligibility, the decision against allowing the claim must be set aside unless those facts are negatived beyond reasonable doubt - and a conclusion adverse to the claimant cannot be reached without taking account of the circumstances referred to in s.107VG. In Cadney v. Minister of Pensions and National Insurance (1966) 1 W.L.R. 80, Edmund Davies J. (as he then was) appears to have arrived at a similar construction of the onus provision in the Personal Injuries (Civilian) Scheme 1964, though he thought that 'reliable evidence' was required to raise a reasonable doubt. For our part, we should think it better to consider reliability of evidence not so much as a condition precedent to the raising of a reasonable doubt under s.107VH(2) (or under s.47(2)) but rather as a factor relevant to determining whether such a doubt exists.

Where the death of an erstwhile member of the forces might have arisen out of war service or might be attributable to it, a pension cannot be refused unless it is proved beyond reasonable doubt that his death was not so related to his war service. The scheme of the Act is not to establish an adversary method of determining claims and applications, but to have the Department make the relevant investigations and then to require that, if there is some evidence that the claimant is eligible to receive a pension, a pension be paid unless the investigations or the course of the proceedings throw up information which establishes beyond reasonable doubt that a pension is not payable. . . .

At p.153, they said:

". . . s.107VH(2) was obviously intended to operate in favour of claimants and it cannot operate sensibly unless the standard of proof beyond reasonable doubt is applied at each stage of the inquiry into the facts. Otherwise, one cannot attain satisfaction beyond reasonable doubt that there are insufficient grounds for granting the claim. Section 107VG is consistent with this view."

The respondent directed attention to the two passages "Where there is some evidence of facts which might fulfil the conditions of eligibility", and "if there is some evidence that the claimant is eligible to receive a pension. . . ". But these observations made by the Full Court did not express universal conditions which must be fulfilled if a conclusion of disproof beyond reasonable doubt is to be avoided. On the contrary, they were descriptions of a particular category of cases, of which category the case before them was an example, in which a claim must succeed; i.e. cases in which there is some evidence which positively points to an identified possibility of a connection with war service which is not disproved. Apart from the obvious requirement that what is said in a judgment must be read with reference to the topic under discussion, emphasis is given to this analysis of the Full Court's statements by the last sentence in the first paragraph quoted in which the Full Court expressly declined to accept that reliable evidence in support of a claim was "a condition precedent to the raising of a reasonable doubt", (that there were insufficient grounds for granting the claim).

Chamberlain, supra, is also of assistance in relation to the difficulty of obtaining satisfaction beyond reasonable doubt in the face of conflicting expert opinions. See also Law (1980) 31 A.L.R. 140, 153; (1981) 147 C.L.R 635, 651. Obviously, the requisite satisfaction cannot be achieved by a tribunal if even the experts admit doubt. However, that is not the only situation in which doubt must exist. In Chamberlain, Gibbs C.J. and Mason J. said:

". . . It is of course the function of the jury to consider which of two bodies of conflicting evidence, technical or otherwise, they will accept. In the present case, Bowen C.J. and Forster J., in the Federal Court, said:

'Had we seen and heard all the evidence on this topic being given, we might have concluded otherwise, but situated as we are, we have no doubt that the jury was entitled to prefer the evidence of one group of experts to that of the other group.'

Jenkinson J. took a different view. He said:

'Those means of evaluating evidence which the jury enjoys by hearing and watching witnesses, and which are denied an appellate tribunal, could not in my opinion have enabled the jury reasonably to have eliminated the doubt, as to whether the matter tested contained foetal haemoglobin, which a careful consideration of the transcript of evidence and the exhibits raises in the mind. It may be conceded, as counsel for the Crown submitted, that idiosyncracies of manner and voice may undermine confidence in the reliability of a witness. But the evidence of Professor Boettcher and of Professor Nairn claimed the consideration of the jury upon grounds which could not rationally be shaken substantially by those things which the eyes and ears of a jury receive, but which a transcript does not reveal. Each of them was giving his opinion on matters of science within disciplines of which each was a master, and at a level of difficulty and sophistication above that at which a juror, or a judge, might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation. The reasoning by which other expert witnesses criticised the conclusions of Professor Boettcher and Professor Nairn, as well as the reasoning by which the latter two witnesses supported those conclusions and criticised the conclusions of the others, were all matter for the jury's evaluation. But in my opinion no juror could reasonably have failed to acknowledge that, reason as he might, he was not in a position to assure himself of the correctness of a conclusion against the opinions of the two professors to the degree which would eliminate reasonable doubt as to that conclusion.'

We agree with Jenkinson J. The most that could be said against Professors Boettcher and Nairn was that their work was done in the comparative seclusion of academic surroundings, so that they lacked the day-to-day experience of the forensic scientists called for the Crown, and that they exhibited 'an unbecoming arrogance' (in the words of Bowen C.J. and Forster J.) and that Professor Boettcher did not fare well in cross examination. There was no challenge to their knowledge or their honesty or impartiality. The criticisms they advanced appear to be rational and compelling. Of course the Crown witnesses had answers to those criticisms. We do not doubt that if the question was whether there was evidence to support a finding that the blood in the car was foetal blood, the question should be answered in the affirmative. But when the question is asked whether such a finding could safely be made it seems to us that the answer must be in the negative. The conflicting evidence should have raised a doubt in a reasonable mind, and there is no other evidence that can resolve the doubt before a decision on the verdict is ultimately reached. We conclude therefore that, in the present case, we must proceed on the basis that the jury were entitled to accept as a fact, from which inferences might be drawn, that those parts of the car, and those articles in it, that responded affirmatively to the tests had blood upon them, but that they could not safely accept as a primary fact that the blood was foetal blood."

Deane J., who dissented in the result, also agreed with Jenkinson J., although Brennan J., the third member of the majority, did not.

The views which we have earlier expressed persuade us that the appeal must be allowed, but leaves us less certain whether it is appropriate to reverse the Tribunal's decision or to remit the case for re-determination, although most reluctantly. Our reluctance is increased because it is obvious that the Tribunal members who have thus far been involved and are familiar with the matter would be embarrassed and the appellant might be dissatisfied if the Tribunal is not reconstituted. Further, the actual outcome of this case may not determine other seemingly similar claims. Each must be decided on its own facts and there will always be differences which may or may not be material. For example, while many who served during the war experienced stress, by no means all would have developed an anxiety neurosis during war service as a result.

The error of law involved in the Tribunal's failure to provide adequate reasons, including any findings of fact, to justify its conclusion plainly justifies no more than the remission of the proceedings for redetermination.

Had the Tribunal rejected the appellant's claim merely because of a view that the appellant's war time stress and resultant anxiety neurosis were not attributable to war service, it might be sufficient to hold that its decision was substantially founded on an erroneous view of the legal questions involved in that aspect of the matter.

Such an error of law would no doubt have infected the Tribunal's decision that the appellant's essential hypertension was not attributable to war service. However, it is possible that the Tribunal also might have considered that, even if the appellant's war-time stress and resultant anxiety neurosis were attributable to his war service, no connection exists between the appellant's war time stress and resultant anxiety neurosis and his essential hypertension. If so, this critical portion of the Tribunal's conclusions would have been entirely factual in character. It would be necessary to reverse any such factual finding before it could be ordered that the appellant's claim be granted.

Somewhat similar difficulties seem to us to lie in the path of the appellant at this point as confronted the respondent's attempt to uphold the decision to reject the appellant's claim by reference to the findings, with the difference that it is the negative which must be established under the Act. It is necessary to be cautious not to engage in artificial analysis and interpretation of segments of what the Tribunal said in order to arrive at what is considered to be a preferred result. It is therefore not without considerable hesitation that we have concluded that the Tribunal's decision should be reversed.

The evidence was canvassed at length in the course of the appeal which extended over 4 days. We see no purpose in discussing it in detail. There was a serious conflict of expert evidence. Where as here, there has been a comprehensive investigation, the claim must succeed if no tribunal, properly directing itself as to relevant matters of law, could have been satisfied beyond reasonable doubt that there was no "connection" between Mr O'Brien's war service and his hypertension: cf. Byrne at pp. 302-303 (40 A.L.R.). We have the gravest doubts whether such a conclusion was open to the Tribunal consistently with the observations in Law and Chamberlain with respect to conflicts of expert evidence.

But, in any event, there seems to us to be another basis for the conclusion that the pension should be granted.

Shortly stated, we think that the Tribunal's reasons support the view that it was not satisfied beyond reasonable doubt that the appellant was not caused stress during the war by his inability to handle the pressures which we have earlier described. It erred in law in our opinion in concluding that such stress was not attributable to war service. Its reasons, taken as a whole, indicate that it was not satisfied beyond reasonable doubt that his post-war stress in the period 1946-1957 did not have a causal relationship with his essential hypertension. That being so, the evidence could not have persuaded it beyond reasonable doubt that the war-time stress did not have such a relationship. No sufficient basis emerged to distinguish between the two periods to the requisite degree of certainty, if at all.

In our opinion, therefore, the Tribunal could not have been satisfied beyond reasonable doubt that the appellant's essential hypertension is not attributable to the stress to which he was subjected during and by his war service. On the material, including in this case material which in fact pointed to such a possibility, that was a real possibility.

Reference has been made in previous cases to problems caused by the drafting of the Act and in this case the Tribunal criticised "the costly and inefficient procedures" which attend the resolution of claims for pension under the Act. One may add how obviously unsatisfactory it is for a claimant where, as here, so many years have elapsed before the final determination of his claim. In the ten years since the claim was made, the dispute has been before a Repatriation Board, the Repatriation Commission (five times), a War Pensions Entitlement Appeals Tribunal (five times), a Repatriation Review Tribunal, the Administrative Appeals Tribunal, and this Full Court.

The bodies appointed to decide claims and expert witnesses who give evidence before them continue to be troubled by the application of the requirement that negative propositions be established beyond a reasonable doubt to circumstances in which there are deficiencies in the evidence or conflicts of evidence, particularly conflicts of expert opinions. Evidence is frequently directed to attempts to establish a positive rather than a negative conclusion, and it is apparently not found easy to apply that evidence to answer the question posed by the Act.

The difficulties experienced in the implementation of the Act are a matter of obvious concern and it may be open to question whether the means which have been chosen to ensure a beneficial attitude towards ex-service personnel are really advancing their interests and those of the community as a whole. The expense of administering the system for determining claims must be very large. Often a decision is made by a body of three members. There is a tendency for the same basic medical issues to be relitigated time and again, with ever increasing escalation of the number and weight and variety of experts called on each side. There are an increasing number of cases coming before the Court on appeal, many legally aided with of course the Commonwealth's resources also being used to attempt to support the respondent Repatriation Commission. Technicalities are constantly intruded into a system in which they can be intended to have no place. The questions of law said to arise almost invariable include the question whether the decision appealed from was open on the evidence consistently with the evidentiary obligations under the Act, involving the preparation of lengthy and expensive records and lengthy and expensive review of the evidence by the Court. Particularly in respect of those who saw service during or prior to the Second World War, who must now be decreasing significantly in number, it may be that the cost of administering the system to preclude claims by those who are incapacitated but do not otherwise satisfy the prescribed statutory requirements is not warranted. However, conditions of eligibility remain part of the existing law.

It was pointed out in Law that the consequences of the Act are likely to include the grant of pensions on what may be unfounded claims. That is not a matter for concern by the Commission or the Tribunal or the Courts. Their role is simply to give effect to deliberate legislative policy, once understood, however difficult the language in which it is expressed and however surprising the results. There are numerous factors which lead to such results, not only the requirement of proof of the negative beyond reasonable doubt. Medical science remains imperfect and language of extremely wide import has been used in the Act to express the conditions of eligibility. Nonetheless, there are limits upon what can be said to arise out of or be attributable to war service, to take para 101(1) (b) of the Act as an example. The provisions of the Act can only be correctly implemented by reference to adequate and properly directed material. Although the proceedings should not be seen as strictly adversary, the responsibility for the provision of such material must rest heavily upon the Commission. Departmental medical reports which constitute mere literal compliance with s.48 of the Act will seldom if ever be adequate and such a report in isolation may often prove positively unhelpful. That is not to say that medical opinions on whether or not an incapacity of unknown aetiology was "connected with" war service may not be of assistance; obviously they will frequently be of assistance: cf. Bugg per Sheppard J. However, perhaps especially in cases where causation is in doubt, an expert's opinion will probably be useless if based upon a misconception of the Act's operation and will be difficult, if not impossible, to evaluate if the reasoning which led to it is not disclosed. The task of the Commission and departmental employees is to facilitate the operation of the Act, not frustrate if (cf. Law's Case at p.640 per Murphy J.); claims are not to be defeated by problems being disguised.

We would allow the appeal and grant the appellant's claim. The respondent must pay the appellant's taxed costs of and incidental to the appeal.