Parker v Repatriation Commission
[2001] FCA 1915
•12 DECEMBER 2001
FEDERAL COURT OF AUSTRALIA
Parker v Repatriation Commission [2001] FCA 1915
AMELIA MARGARET PARKER v REPATRATION COMMISSION
N1045 of 2001MADGWICK J
12 DECEMBER 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1045 of 2001
BETWEEN:
AMELIA MARGARET PARKER
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENTJUDGE:
MADGWICK J
DATE OF ORDER:
12 DECEMBER 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant to pay the respondent’s costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1045 of 2001
BETWEEN:
AMELIA MARGARET PARKER
APPLICANTAND:
REPATRIATION COMMISSION
RESPONDENT
JUDGE:
MADGWICK J
DATE:
12 DECEMBER 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(revised from transcript)HIS HONOUR:
In this matter the applicant appeals on a question of law from a decision of the Administrative Appeals Tribunal (“the Tribunal”) that affirmed a decision of the respondent to refuse her claim for a widow’s pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The respondent’s decision had earlier been affirmed on review by the Veterans’ Review Board and it was really a review of that decision as much as anything, that was undertaken by the Tribunal. The notice of appeal indicates that the question of law is:
“Whether the Tribunal erred in law in finding that there was no evidence that the late veteran’s smoking habit increased during or following service, in relation to the question of whether the veteran’s death was war-caused within the terms of the [Act].”
The ground for appeal is that:
“The Tribunal erred in law in finding that there was no evidence that the late veteran’s smoking habit increased during or following service, in relation to the question of whether the veteran’s death was war-caused within the terms of the [Act], such finding being so unreasonable that no reasonable decision-maker could have made the finding”.
The applicant’s late husband, Mr William Thomas Parker (“the veteran”) was born on 21 August 1919 and died on 5 June 1997. He rendered eligible war-service from 14 October 1940 to 31 August 1945. His service did not qualify as “operational service” under the Act. It was common ground that the relevant standard of proof required for determination of the applicant’s claim was set out in s 120(4) of the Act, namely that the decision-maker should “decide the matter to its reasonable satisfaction”.
The applicant and the veteran first met in 1957 and married in 1959. In mid-1996 the veteran developed a worrying looking and foul smelling mass in his groin which was investigated at Westmead Hospital by a medical team headed by Dr Tiver. It was identified as a cancerous tumour. The veteran was admitted to hospital on 30 October 1996 for palliative surgery, it having been determined that there was nothing that could be done to save his life.
Surgery was performed on 31 October 1996 and he was discharged from hospital on 27 November 1996. A PET scan in May 1997 indicated that he had widely disseminated metastatic disease and soon thereafter he was admitted to Blacktown Hospital for intensive palliative care. The veteran died on 5 June 1997.
The applicant’s principal claim for a widow’s pension under the Act, was that the veteran had developed a smoking habit during his war service that led to the development of a primary lung cancer which was not, at first, detected and had caused, by way of metastasis, the secondary cancer.
The second hypothesis raised for consideration was that the veteran had developed a smoking habit during his war service which led to his contraction of chronic airflow limitation (“CAL”) and that the veteran’s CAL contributed to the cardio-respiratory failure that caused his death. The relevant Statements of Principle (“SoPs”) in force recognise that a connection can be made between lung cancer and death on the basis of a smoking history and likewise in relation to CAL, although the instrument in those circumstances is said to require quite “chronic bronchitis and/or emphysema”.
The applicant ultimately put a case to the Tribunal in the alternative that the veteran’s smoking habit was war-caused or a smoking habit that was aggravated by war service. It is fair to say that the principal battleground before the AAT concerned the claim related to lung cancer. The applicant presented evidence from a distinguished oncologist, Associate Professor Quinn, then of St Vincent’s Hospital who, in a very scholarly (and to a lay person well-argued) way, presented the theory that, for reasons connected with the study of oncology, it was more likely than not that the groin cancer was secondary to the primary lung cancer. Further, whilst the veteran had had excellent care at Westmead Hospital, the differential diagnosis would have made no difference whatever to his management and thus was unlikely to have been a focus of primary attention. This accounted for the missed but preferable diagnosis.
Dr Tiver, however, put material before the Tribunal, through the respondent, which to a lay person also appears well-argued, in support of the proposition that the groin cancer developed first and that lesions in the lung were a secondary manifestation of that primary groin cancer. The Tribunal preferred the approach of Dr Tiver and the associated investigating specialists. No complaint is made about that aspect of the matter.
The hypothesis relating to CAL was decidedly a second string to the applicant’s bow. It nevertheless had some respectable provenance, and the Tribunal dealt with that claim and with the question of service-related smoking, in that context. The Tribunal began its work by defining the issues to be determined in the matter as follows:
A. What was the primary site of Mr Parker’s cancer?
B. Did Mr Parker have a service related smoking habit?
C. What was the cause of Mr Parker’s death?
D. Was Mr Parker’s death related to service?No criticism has been made of that definition of the issues.
The applicant told the Tribunal that, early in her relationship with her late husband, the latter had told her that he commenced smoking when he joined the army.
Mrs Parker said in her evidence she did not believe that the veteran would have smoked before his military service because he was living at home with his parents and would not have attempted to smoke. As the Tribunal put it, Mrs Parker stated that she believed this was true because the veteran came from a very prim and proper family which was of the “old school tie” type. Mrs Parker explained that, as she understood it, the veteran’s family had been very close and he was particularly close to his only other sibling, his younger brother, Mr Ronald Parker.
In a smoking questionnaire which the Secretary of the Department of Veterans Affairs caused the applicant to complete, Mrs Parker had indicated that she did not know in which year the veteran took up smoking but “as told by [the veteran]” it was during his war service. And in answer to the question, “Why did the veteran take up smoking”, she answered, “Peer pressure, stress and boredom of service life, availability of cigarette/tobacco ration”. In relation to the quantities of cigarettes or tobacco smoked by the veteran, she indicated that before service, to the best of her knowledge, he smoked nothing. During his service, he smoked an unknown quantity of tobacco as was the case between 1945 to 1959, and that from 1959 to 1996 he smoked 15 to 20 “roll your own” cigarettes per day before ceasing due to ill health.
When Mrs Parker was cross-examined before the Tribunal, she was asked about that information:
“Q: Was that just a guess or was it based on something else?‑‑‑
A:Well, if I said it, it would be a guess because, I mean, as I say, he worked outside and that and I didn’t really go into how many cigarettes he did smoke.
Q: Yes. Would it be fair to say that you’re an indoor person, or not?‑‑‑
A: I’m an indoor person and he’s an outdoor person ---.”
The veteran used to spend a lot of time in his garage on woodwork.
The main evidence adverse to the applicant’s claim is an entry in an account of his general history, given by the veteran, to the Oncology Department at Westmead Hospital. The history noted that the veteran was a “77 year old retired carpenter presenting with a fungating skin lesion of the right groin/scrotum”. An account is given that the veteran first noticed a rash in the groin crease and thereafter bilateral groin lumps followed by rapid enlargement of the skin lesion of the right groin crease and ulceration with associated right lower limb oedema. Reference is made to his father’s death by bowel cancer at the age of 83, to his marital status and to the fact that the applicant herself had had a kidney carcinoma resected. Then the following was noted: “Smokes 10 cigarettes per day since the age of 15. Consumes 30 to 40 grams alcohol per day”.
The inferences readily available to the Tribunal included that the history was given by the veteran who must have been very worried about the groin lesions and that the history was carefully taken (there was no suggestion of any recording inaccuracy in relation to any other part of the history).
The applicant, when questioned about this account, said she did not believe that the recorded statement could be true. It did not accord with what the veteran had told her. At the time this record was made, Mrs Parker explained to the Tribunal that her husband, the veteran, was in a “shocking condition” and that “he was confused, extremely ill and did not know what he was saying”. In general, Mrs Parker said that the veteran had not been a “complainer.”
The veteran’s brother, Mr Ronald Parker, also gave evidence before the Tribunal including that he was two years younger than the veteran and that they were very close, even sharing the same bedroom. Ronald said that, prior to his own enlistment, he had never seen his brother smoke, not even to sneak the occasional cigarette. He acknowledged that, as the younger brother, it was possible that his older brother may have covertly smoked and had not shared this with him for fear he would breach the confidence and tell their mother. The boys’ upbringing was conventionally religious and, as Ronald called it, “quite strict but fair.” The veteran had commenced full-time work at about 15 or 16 years of age. Ronald did not know whether his brother had smoked at work, although when they were out together socially his brother did not smoke. When they enlisted, the brothers undertook training together at La Perouse and it was then that Ronald noticed his older brother smoking. Servicemen at that time received packages from the Salvation Army and the Red Cross which, amongst other things, contained tobacco and/or cigarette rations. At that time, it was very acceptable to smoke and indeed Ronald described smoking as having been considered “the manly thing to do.” Ronald himself had commenced smoking when hospitalised after an army accident at Wagga. Thereafter, he recalled that he and the veteran would meet on leave and would both smoke. After the war and until the 1970s the brothers saw each other quite regularly. Ronald then moved to Port Macquarie, the brothers saw each other less frequently, two or three times a year and he observed that the veteran was always smoking. From about 1967, a date which Ronald could persuasively place, he recalled that the veteran had an irritable cough. He too was disinclined to believe the veteran’s smoking history as recorded by the Westmead Hospital.
The Tribunal found that the applicant and Ronald Parker had “provided unembellished evidence and consider[ed] them witnesses of truth”. The Tribunal continued:
“It is often difficult in matters dealing with the death of a veteran to reach a conclusion about the circumstances leading to the veteran's death. In Mr Parker's case, the Tribunal has a picture of his being reluctant to seek medical attention for any of his health issues or to discuss his problems with his wife.”
The Tribunal then dealt with the matter of smoking in the following way:
“The Tribunal must determine on the available evidence whether or not Mr Parker had a service-related smoking habit. The Tribunal considers that the medical records from Westmead Hospital, which indicated that Mr Parker had been smoking 10 cigarettes since he was 15 years old, must be taken into account. Mr R Parker's evidence was that in fact his brother was working at age 15 at Neon Signs and, whilst living at home, was obviously away from the home during the course of his attending his full-time job. Further, it is the Tribunal's understanding that Mr R Parker did not see his brother for some periods of time. Mr R Parker was two years younger than his brother and all that he could report was that he did not see his elder brother smoke. The Tribunal, having considered the authorities, is of the view that Mr Parker had a well-established smoking habit prior to his service. There is no evidence that Mr Parker's smoking habit increased, decreased or indeed stayed the same during and following service. In these circumstances, the Tribunal is reasonably satisfied that on the balance of probabilities, Mr Parker did not have a service-related smoking habit.
Based on the objective medical evidence, the opinions of Dr Tiver, Assistant Professor Quinn and the evidence of Mrs Parker and her brother-in-law, the Tribunal finds that Mr Parker did suffer from CAL. We have found, however, that Mr Parker did not have a service-related smoking habit. Accordingly, the Tribunal further determines that, on the balance of probabilities, Mr Parker's CAL was also not war-caused.”
The applicant did not take the narrow point that the Tribunal, having used the phrase “there is no evidence”, should be understood as using that term as a judge would use it. The applicant concedes that it might be reasonably understood, in the context of the Tribunal’s reasons, as a whole, including the specific recounting of the evidence of the applicant and Ronald Parker, and the complimentary remarks about their giving of evidence and the introductory material quoted above at [19], that the Tribunal meant there was no acceptable evidence to support this finding.
It is fair to say that counsel for the applicant struggled a little to express the error of law but in the end it was put that the Tribunal made a finding that no reasonable decision‑maker could have made, echoing the formulation, of course, from Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 but relying, in particular, on a formulation in Apthorpe v Repatriation Commission (1987) 77 ALR 42 at 53. The reference to counsel struggling is not, of course, to be denigratory of Mr Vincent, whose submissions were capable and fair; it is simply reflective of difficulties that judges of this Court, and even the High Court, have had in this area.
Gummow J, in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 recently expressed the opinion that “Wednesbury unreasonableness” is probably confined, in its application, to discretionary decisions. However, in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, his Honour revived earlier observations in the High Court that the Court has the ability to infer an error of law from a result that could not have been arrived at, if the law had been properly applied. There are other ways in which judicial concern with irrational, administrative fact-finding may, perhaps, be acceptably rationalised. I assume that such is the case for the purpose of this decision.
The case of the applicant was really put in two ways. The first was that the weight of the material coming from honest and careful witnesses was simply such that it was bizarre and perverse to prefer the evidence in the hospital record. Certainly, the material from the applicant and Ronald Parker was worthy of very considerable attention by the Tribunal. It would be very unlikely, though by no means impossible, that if the veteran had smoked before his army days his young brother would not have known about it. Likewise, it cannot be countenanced that the Tribunal disbelieved the applicant when she said that the veteran told her that he had begun smoking while in the army.
However, the Tribunal might very well have taken the view that the veteran was far more likely to tell his doctors as best he could, the exact truth about the commencement and degree of his smoking. It seems likely to me, and I should think it was at least open to the Tribunal to think, that his interlocutor at the hospital, probably Dr Tiver himself, would have been very interested in the extent and degree of the insults to his lungs which the veteran’s smoking had offered them. The Tribunal, despite the evidence of the applicant and Ronald Parker, in my opinion, was legally entitled to form the view which it did, that “[the veteran] had a well established smoking habit prior to his service”. On this basis, I find that the substance of the first basis on which the case was put must fail.
It was then put in the alternative that there was, contrary to the Tribunal’s understanding, acceptable evidence that the veteran’s smoking habit had increased following his army service, so that the Tribunal ought to have, but did not, deal with the proposition that that increase might have been appreciably contributed to by service factors. At first sight, that hypothesis is a narrow point but there is something to be said for it.
Questioned about the immediate post-war period during examination in-chief, Ronald Parker gave the following evidence.
“Q: Were either of you smoking then?
A: Well actually, yes we would, we’d have a smoke, we weren’t great smokers, until later on. It gradually grew on, I increased smoking and he increased smoking throughout the years.”Counsel for the applicant then moved to the evidence of the veteran coughing and wheezing and “huffing” due to shortness of breath. Ronald Parker suggested that the shortness of breath had developed by the end of the 1980s or the early 1990s. He was then asked:
“Are you able to say whether you thought your brother’s level of smoking changed much at any time?”
And he answered:
“No, no, I never said it changed at all actually. He always smoked right up to the time he went into hospital more or less. I think he didn’t give it away until he went into hospital if I remember rightly.”
On material, reasonably in my opinion, accepted by the Tribunal, the veteran smoked for 62 years. For five of those years he smoked while on eligible service. No evidence was placed before the Tribunal other than from the applicant and Ronald Parker which could at best, be described as rather ancient hearsay as to what actual conditions, related to his service, might have led the veteran to increase his smoking. I do not quote it here but the evidence about rations dissolved, as it were, into evidence given by Ronald Parker about tobacco rationing.
There was no clear, comprehensible material before the Tribunal to indicate just what the veteran did during his years of eligible service, where he did it or in what conditions, except that for a fairly short period he was stationed on Thursday Island and that during the course of the war, he was promoted to Corporal. In that context, it seems to me that the Tribunal’s conclusion that there was “no [acceptable] evidence” that the veteran’s smoking habit had materially increased following his service was open to it. Such evidence as there was on the subject was not of a sufficient kind to require that the Tribunal should deal expressly with the question of whether any such increase might have been service related.
In truth, the applicant had a somewhat difficult case to try to make before the Tribunal. Her solicitors found very credible expert evidence to put before the Tribunal and such honest evidence as she and Ronald Parker could give on the subject of the commencement of the veteran’s smoking was before the Tribunal. The Tribunal was, however, entitled to prefer the account given by the veteran as noted in the hospital record when, understandably, fear was likely to have sharpened his recollection. The rest was very much in the way of a second string to her bow, and the Tribunal, in my opinion, committed no legal error by not following every line of logical inquiry with exquisite thoroughness.
In my opinion, unfortunate as the result is, the appeal to the Court must be dismissed and the applicant should be ordered to pay the respondent’s costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate:
Dated: 12 December 2001
Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: Dibbs Barker Gosling Counsel for the Respondent: Ms R M Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 December 2001 Date of Judgment: 12 December 2001
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