Repatriation Commission v Bushell

Re: REPATRIATION COMMISSION
And: ALLEN WILLIAM BUSHELL
No. G509 of 1990
FED No. 230
Veterans' Affairs
13 AAR 176
23 ALD 13

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Morling(2) and Neaves(2) JJ.

CATCHWORDS

Veterans' Affairs - whether a reasonable hypothesis as to a causal connection between war service and the veteran's medical condition - meaning of reasonable hypothesis - stress, alcohol and cardio-vascular disease - whether AAT failed to deal with the whole of the veteran's case.

HEARING

SYDNEY

#DATE 3:5:1991

Counsel for the appellant: Mr A. Robertson

Solicitor for the appellant: Australian Government Solicitor

Counsel for the respondent: M. Maurice QC with Mr M. Smith

Solicitors for the respondent: Legal Aid Commission of N.S.W.

ORDER

The orders made on 13 August 1990 be varied by substituting for Order 2 an order that the decision of the Administrative Appeals Tribunal of 7 April 1989 be set aside and the matter be remitted to the Tribunal to determine whether the material before it raises a reasonable hypothesis connecting the respondent's condition of hypertension with his consumption of alcohol and, consequently, with his war service.

Otherwise the appeal be dismissed.

There be no order as to the costs of the appeal.

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

JUDGE1

This is an appeal from a judgment of a single judge of the Court. His Honour set aside a decision of the Administrative Appeals Tribunal and remitted the matter to the Tribunal for rehearing.

The Tribunal had had to apply those familiar but difficult to apply provisions of the Veterans' Entitlements Act 1986 (Cth), sub-ss.(1) and (3) of s.120. The Tribunal held that the facts before it did not raise a reasonable hypothesis as to a causal connection between Mr Bushell's war service and his medical condition of hypertension.
What is and what is not a reasonable hypothesis is a question of fact, not of law, and it is a question committed to the decision-maker of fact, that is to say, the Repatriation Commission, the Veterans' Review Board or the Administrative Appeals Tribunal. It is not a matter for this Court to determine. Moreover, this Court cannot lay down other terms to take the place of the term "reasonable hypothesis". The term means what it says. As to whether such an hypothesis exists in a particular case is a matter on which the decision-maker of fact must make a value judgment. The Court should interfere only when it appears clearly that the decision-maker has made an error of law, e.g., in the sense that the decision was perverse, that no reasonable decision-maker could have come to it. See, e.g., Puhlhofer v. Hillingdon London Borough Council (1986) 1 AC 484 per Lord Brightman at p 518, Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 per Mason C.J. at pp 355-60, Gilbert v. Repatriation Commission (1989) 86 ALR 713 at 722. My comments hereafter should be read in that light.
The concept "reasonable hypothesis" has never been better enunciated than it was by the Veterans' Review Board in Stacey's case, in a passage which was adopted subsequently by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615 and by Jenkinson, Neaves and Wilcox JJ. in East v. Repatriation Commission (1987) 74 ALR 518 at 533. The Veterans' Review Board said:-
"A hypothesis may be conveniently defined as: `proposition made as
basis for reasoning, without assumption of its truth; supposition
made as starting point for further investigation from known facts;
groundless assumption': The Concise Oxford Dictionary.
...
The addition of the word `reasonable' would however seem to imply
that what is required is more than a mere hypothesis. In the opinion
of the Board, to be reasonable, a hypothesis must possess some degree
of acceptability or credibility - it must not be obviously fanciful,
impossible, incredible or not tenable or too remote or too tenuous.
For a reasonable hypothesis to be `raised' by material before the
Board, we think it must find some support in that material - that is,
the material must point to, and not merely leave open, a hypothesis
as a reasonable hypothesis."
In East v. Repatriation Commission, it was established that, by requiring a reasonable hypothesis consistent with the known facts of the veteran's case, the Legislature had dealt with the problem which arises when the veteran's disease or disability has an unknown aetiology. The legislation now requires that a reasonable hypothesis be put forward before the veteran may succeed. That hypothesis must be related to and pointed to by the facts of the veteran's case. See East's case at 532-4.
A reasonable hypothesis will ordinarily be established if a responsible medical practitioner, speaking within the ambit of his expertise, and after considering the particular facts of the veteran's case, puts forward a theory of a likely, in the sense of a realistically possible, not fanciful, causal connection between war service and the veteran's disability. That being done, the s.120(1) standard of proof will apply. The veteran's claim may be dismissed if the decision-maker is satisfied beyond reasonable doubt on all the evidence that any necessary element of fact did not exist, or that the theory was, in the circumstances of the case completely untenable. See Webb v. Repatriation Commission (1988) 78 ALR 696 at 699-70, 705; Gilbert v. Repatriation Commission at 719-21.
Of course, to be reasonable an hypothesis must be responsible. Therefore an element of proof may be involved in the application of s.120(3). But that is not to say that, to be reasonable, an hypothesis must be supported by scientific proof or the general acceptance of the medical profession. Yet, the medical practitioners who gave evidence before the Tribunal on behalf of the Repatriation Commission suggested that that was required. Dr Freeman said:-
"From the scientific point of view it (the hypothesis) is not an
acceptable hypothesis ... the whole basis of science is that a
hypothesis is brought forward and it gains respectability by the body
of work that seems to confirm it even though there is no proof ...".
Professor O'Rourke gave this evidence, inter alia:-
"They fall within the realm as you see of hypothesis?---I think that
is the bottom line of the National Heart Foundation's report.
Yes?---But there is no conclusive statement that can be made about
this, that there is no evidence, hard evidence to support a
relationship between stress and long standing hypertension.
You said hard evidence, but you do agree that there is evidence?---
There is some evidence for, there is some evidence against and that
is dealt with in this report and also in the other reports that I
refer to on page 8 of my paper and which I came down to finish with
the text books, authoritative text books which independently and
individually have tried to assess all the information and which all
have come out either inconclusive or against."
In the light of my opening remarks, I do not propose to discuss whether the particular hypothesis put forward by the medical practitioners called on behalf of Mr Bushell, and for which there was "some evidence" but no "hard evidence", to use the terms of Professor O'Rourke, was a reasonable hypothesis. That was a matter for the Tribunal. But I should, however, take the opportunity to emphasise that s.120(3) is concerned with an hypothesis, a theory or supposition, whilst s.120(1) is concerned with the determination of facts, including disputed medical facts. To require, in the consideration under s.120(3), too strict a proof of the validity of an hypothesis would be to subvert the operation of s.120(1). Respectability or general acceptability by the medical profession of an hypothesis, as Dr Freeman had in mind, seems to go beyond the concept of "not fanciful" adumbrated in East's case.
The question before the Tribunal was whether stress had contributed to Mr Bushell's hypertension. Eminent specialists called on behalf of Mr Bushell gave evidence to the Tribunal that there was a theory that stress contributed to heart disease. Experts called on behalf of the Repatriation Commission gave evidence to the Tribunal that this theory was untenable and, in Mr Bushell's case, fanciful for, after his war service, Mr Bushell had deliberately avoided stress.
The case for Mr Bushell was put to the Tribunal in a number of ways. It was said by Dr Schiller and Dr Miller, eminent medical practitioners called on behalf of Mr Bushell, that Mr Bushell had an ongoing anxiety condition arising from his war service, that he had a fairly high blood pressure reading in 1956 at an early age and that anxiety may have contributed to the development of his hypertension. Stress was said to be a possible risk factor in cardio-vascular disease. Alternatively, it was thought by Dr Miller and others to be of significance that Mr Bushell had regularly consumed alcohol with a view to reducing or limiting his state of anxiety. Alcohol, certainly excessive consumption of alcohol, is an accepted risk factor in hypertension. Mr Bushell's regular consumption of alcohol and his maintenance of a quiet life may even have been factors which led to his becoming a little overweight. Obesity also is an accepted risk factor in hypertension. Even Dr Bender, one of the medical practitioners who gave evidence at the first hearing on behalf of the Repatriation Commission that stress was not related to hypertension, said:-
"You have acknowledged that this man's hypertension is in some way
related to smoking, salt, uric acid and family history?---As well as
alcohol and overweight.
Are you seeing these as acting together?---Yes, with a different
degree of expression of each."
The Tribunal preferred the evidence given on behalf of the Repatriation Commission. The Tribunal held that the theory of a connection between stress and hypertension was not a reasonable hypothesis. There was evidence before the Tribunal on which it could so find. My brothers Morling and Neaves JJ. have dealt fully with this aspect of the matter in their reasons for judgment, which I have had an opportunity to read in draft. I respectfully agree with their Honours' comments.
However, although it is clear that the Tribunal thought the hypothesis propounded was wrong, it is difficult to determine what the Tribunal required of a reasonable hypothesis. The Tribunal did not say, for example, that the theory put forward in respect of Mr Bushell was fanciful. And, the Tribunal did not expressly say that it was satisfied beyond reasonable doubt, on the whole of the evidence, that the hypothesis was unsound. There are indeed passages which could suggest that the Tribunal entered into the arena of determining the validity of the hypothesis, and did so on the balance of probabilities, rather than determining, under s.120(3), whether the hypothesis was, as a theory or supposition, reasonable and pointed to by the facts.
The Tribunal discussed the long-running controversy as to a connection between stress and cardio-vascular disease but it failed to discuss the particular circumstances of Mr Bushell's case, which East's case, Webb's case, Griffiths case and others have emphasised should be done. Thus, the Tribunal did not discuss whether any or what significance attached to Mr Bushell's blood pressure readings of 120/70 in December 1941, 120/80 in April 1945, 125/85 in October 1945 and 140/90 in May 1956. Indeed, the Tribunal failed to mention at all the issue of alcohol, which was specifically raised as an issue for the Tribunal's consideration. Therefore, the reasons of the Tribunal did not deal with the whole of the case put on behalf of Mr Bushell.
It follows, as the trial Judge held, that the matter should be remitted to the Administrative Appeals Tribunal for rehearing.
The trial Judge commented that, in the circumstances, the rehearing could be conducted by the Tribunal as previously constituted. However, in Northern NSW FM Pty Ltd v. Australian Broadcasting Tribunal (Davies, Burchett and Foster JJ., 12 November 1990), it was pointed out that justice is best seen to be done if a matter, remitted for rehearing, is heard by a differently constituted Tribunal. No doubt when the President comes to allocate a member or members to constitute the Tribunal on the rehearing, she will take this point into account and will also consult with the parties to ascertain their views.
I would dismiss the appeal with costs.

JUDGE2

The respondent ("the veteran") has applied to the Repatriation Commission for the grant of a war service disability pension. He is incapacitated by reason of essential hypertension, a condition which he claims is related to his war service. His application was refused by the Repatriation Board whose decision was affirmed by the Veterans' Review Board. He thereupon applied to the Administrative Appeals Tribunal for a review of the Veterans' Review Board's decision. The Tribunal affirmed the Board's decision, but the Tribunal's decision was carried on appeal to this Court which set aside the Tribunal's decision and remitted the matter to it to be heard and decided again.

Upon the re-hearing the Tribunal was constituted by Deputy President C.J. Bannon, QC He affirmed the decision of the Veterans' Review Board. From his decision an appeal was carried to this Court and was heard by Wilcox J. He allowed the appeal and remitted the matter to the Tribunal for re-hearing. It is from Wilcox J's decision that this appeal is brought.
The case which was advanced on behalf of the respondent to Mr Bannon was that the veteran suffered from essential hypertension and that there existed a reasonable hypothesis that this condition was caused by his war service. The Commission conceded that the veteran suffered from essential hypertension but it contested the reasonableness of the hypothesis asserted by the veteran.
The veteran served in the Royal Australian Air Force between 1941 and 1946 during which period he served in combat areas in New Guinea and the Netherlands East Indies. He suffered stress problems during his service and in October 1945, prior to his discharge, he was declared permanently unfit for service on the grounds of temperamental instability.
There was conflicting evidence before Mr Bannon upon the question whether essential hypertension can be caused by stress. Mr Bannon described all of the expert witnesses who gave evidence as "well respected medical practitioners". In the course of his reasons he observed:
"As may be expected, the experts called in support of the
application maintain that the hypothesis is reasonable, while
those called on behalf of the respondent have a contrary opinion.
Of course the reasonability of the hypothesis is not a matter
committed by law to the witness, but is a matter for this Tribunal
to decide pursuant to s.120(3) of the Act, upon the material
before it."
After expressing a preference for the evidence given by the experts called by the Commission, Mr Bannon said:
"... I am satisfied that after consideration of the whole of
the material before me that the material does not raise a
reasonable hypothesis connecting the veteran's essential
hypertension with the admittedly war-caused condition of stress
from which he has suffered, and still suffers."
Mr Bannon then referred to the evidence of Professor O'Rourke, who also discounted the relationship between stress and essential hypertension. He expressed his conclusion on the medical evidence in the following terms:
"The evidence of Dr Freeman and of Professor O'Rourke satisfies
me that although the hypothesis of stress as contributing to the
onset of essential hypertension has been advanced in a number of
papers, that hypothesis is not reasonably based. That being so,
and however well respected Drs Schiller and Miller may be in their
profession, I am required by the terms of s.120(3) of the Act to
be satisfied beyond reasonable doubt that there is no sufficient
ground for determining that the veteran's essential hypertension
was war-caused.
"It is a matter of regret for me that the decision of disputed
matters between well respected physicians is left to a layman such
as myself, who has no expertise in medical matters. It is also a
matter of regret that elderly and ill veterans who have rendered
service to their countries are denied a war pension because of the
terms of the Act. However, I must apply the law as I see it."
Before Wilcox J., three arguments were advanced on behalf of the veteran in support of the appeal against Mr Bannon's decision. First, it was submitted that Mr Bannon had misconceived the nature of the determination called for by the combined effect of sub-ss. (1) and (3) of s. 120 of the Act. Those sub-sections provide as follows:
"120. (1) Where a claim under part II for a pension in
respect of the incapacity from injury or disease of a veteran, or
of the death of a veteran, relates to the operational service
rendered by the veteran, the Commission shall determine that the
injury was a war-caused injury, that the disease was a war-caused
disease or that the death of the veteran was war-caused, as the
case may be, unless it is satisfied, beyond reasonable doubt, that
there is no sufficient ground for making that determination.
(2) ...
(3) In applying sub-section (1) or (2) in respect of the
incapacity of a person from injury or disease, or in respect of
the death of a person, related to service rendered by the person,
the Commission shall be satisfied, beyond reasonable doubt, that
there is no sufficient ground for determining -

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

(b) that the disease was a war-caused disease or a defence-caused disease; or

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

as the case may be, if the Commission, after consideration of the

whole of the material before it, is of the opinion that the

material before it does not raise a reasonable hypothesis

connecting the injury, disease or death with the circumstances of

the particular service rendered by the person."

Mr Bannon, so it was argued, had asked himself the wrong question. It was submitted that, instead of considering whether the view advanced by the experts called on behalf of the veteran was a reasonable hypothesis linking stress with essential hypertension, he had sought to determine the factual correctness of the hypothesis. It was common ground before Mr Bannon that the Tribunal's task was to determine whether the evidence demonstrated the existence of a reasonable hypothesis connecting the veteran's essential hypertension with his war service, not whether the hypothesis represented the preferred view of medical experts: see East v Repatriation Commission (1987) 74 ALR 518, Webb v Repatriation Commission (1988) 78 ALR 696 and Gilbert v Repatriation Commission (1989) 86 ALR 713.
Wilcox J rejected the first argument advanced on behalf of the veteran and it was submitted on appeal that he was in error in doing so. We do not agree. It is true that there are some passages in Mr Bannon's reasons which, looked at in isolation, afford some support for the view that he set himself the task of determining the factual correctness of a hypothesis advanced on behalf of the veteran. But we share Wilcox J's view that a reading of the whole of Mr Bannon's reasons discloses that he did indeed address the question whether the evidence disclosed a reasonable hypothesis connecting the veteran's essential hypertension with his war service and that he decided that question adversely to the veteran. It may be conceded that Mr Bannon might have used more positive language to describe his non-acceptance of the existence of a reasonable hypothesis of the requisite kind. It might also be said that the reference at the conclusion of his reasons to the necessity for him to make a decision on "disputed matters between well respected physicians" could, considered in isolation from the rest of his reasons, raise a doubt whether what he did was to accept the opinions of the Commission's witnesses as to the correctness of the hypothesis rather than reach a conclusion that the material before him did not raise a reasonable hypothesis connecting the veteran's condition with his service. But as was said by Northrop and Sheppard JJ. in Lennell v Repatriation Commission (1982) 4 ALN N29:
"A court exercising supervisory jurisdiction over an
administrative tribunal ought not lightly interfere with its
decisions even if the court feels that the tribunal's language may
have a degree of looseness. Certainly it ought not to indulge in
an exercise which overzealously picks the tribunal up in the way
it has expressed itself. That is particularly so when it appears
properly to have understood the legal principles which it is to
apply."
See also Freeman v Defence Force Retirement and Death Benefits Authority (1985) 8 ALN, N97 where Sheppard J observed that "what may appear to be a loose or unhappy way of phrasing a thought ought not to be determinative of the outcome unless it is apparent that the Tribunal has, by its language, been led to make an error of law." We agree with Wilcox J that a reading of the entirety of Mr Bannon's reasons make it sufficiently plain that he was aware that the question for him to answer was whether the material before him demonstrated the existence of a reasonable hypothesis of the requisite kind.

It was also submitted to Wilcox J that even if Mr Bannon correctly understood the nature of the inquiry under s.120(3) of the Act, the evidence referred to in his reasons for decision was not capable of establishing the conclusion which he reached. This argument succeeded before Wilcox J. He thought that the evidence given by the medical experts called by the Commission established no more than that they preferred the view that there was no relationship between the veteran's essential hypertension and his war service. He did not think they went so far as to assert that the contrary view was unreasonable. Accordingly, he thought the matter should be returned to the Tribunal for reconsideration.
We are bound to say there is much to be said in support of the conclusion reached by Wilcox J on this issue. But we have come to the conclusion from a perusal of all the evidence which was before Mr Bannon that there was sufficient material before him to enable him to reach the conclusion that it did not raise a reasonable hypothesis connecting the veteran's essential hypertension with his war service. For instance, Dr Freeman gave the following evidence in relation to the views of the experts called by the veteran:
"In your own view, ... are these contrary views a
respectable hypothesis today, the stress based
hypothesis?---Well, not in my own experience, no. I
would not regard them as a respectable hypothesis."
In his evidence, Professor O'Rourke said:
"In this case severe anxiety developed in the absence of
hypertension. Later severe hypertension developed in the absence
of anxiety. Other factors - familial predisposition and age
account for the development of hypertension. In this case there
is no credible link between war service and hypertension; I
believe that the hypothesis linking the two is fanciful."
Elsewhere in his evidence Professor O'Rourke said that there is no substantial body of opinion to suggest that there is a relationship between stress and hypertension. He also said that those who support the hypothesis of a causal connection between stress and hypertension are within what he described as "a fringe group in medicine."
Dr Brender, another witness called by the Commission, said:
"I cannot find any relationship at all between this man's
anxiety state and `temperamental instability' that was diagnosed
between 1941 and 1946, and his development, in 1972, of essential
hypertension. There is no evidence in the literature to support
the hypothesis that, in humans, oft repeated stresses, which may
or may not cause transient increases in systolic blood pressure,
lead to the later development of established hypertension. Also,
it must be clearly pointed out at this stage that even when Mr
Bushell was diagnosed and being treated for an anxiety state, he
remained normotensive, that is to say, his blood pressure was not
elevated even though he did have the anxiety at the time. His
anxiety state manifested itself in other ways, and did not appear
to affect the cardio-vascular system. To postulate that any
stress that Mr Bushell might have suffered during war service
between 1941 and 1946, and which was not documented as leading to
even transient rises in blood pressure, could produce, in 1972, a
sustained elevation in blood pressure leading to a diagnosis of
essential hypertension is, in my opinion, fanciful."
The above statement was made in a written report furnished by Dr Brender and he supported the statement in oral evidence.
It must be conceded that the experts called by the Commission acknowledged that other experts did not share their views. Mr Bannon could have come to the view that the material before him did raise a reasonable hypothesis connecting the veteran's hypertension with his war service, but he was not obliged to reach that conclusion. In our opinion it was open to him on the evidence to reach the conclusion which he did.
Davies J in his reasons has referred to problems with the Tribunal's reasons for decision which have led him to the conclusion that the Tribunal's decision should be set aside. We agree that there are passages in the Tribunal's reasons which might suggest that it embarked upon a consideration of the validity of the hypothesis raised on behalf of the veteran, rather than determining whether the hypothesis was reasonable. Nevertheless, we do not think it can confidently be said that that is what the Tribunal did. In these circumstances, although the Tribunal's language has "a degree of looseness" (to adopt a phrase from Lennell's case, supra) we do not think that of itself is a sufficient reason for setting aside the decision.
The third submission put to Wilcox J was that Mr Bannon failed to address an alternative case advanced to him on behalf of the veteran.
This case was that there was a relationship between the veteran's consumption of alcohol and his hypertension, the consumption of alcohol being, so it was submitted, related to his war service. Mr Bannon made no reference to his alternative case in his reasons for decision. There was some dispute before his Honour as to whether the alternative case was indeed relied upon by the veteran's counsel before the Tribunal. Examination of the transcript of the proceedings before the Tribunal satisfied Wilcox J that the alternative case was relied upon. Accordingly, he was of the opinion that the veteran was entitled to have a ruling on that part of his case and that the omission of Mr Bannon to deal with it was an error of law.
It is only fair to the Tribunal to say that the alternative case received scant attention in the final submissions put on behalf of the veteran. The stress hypothesis was pressed on the Tribunal almost to the exclusion of any other case. Nevertheless we agree with Wilcox J that the alternative case was put. Accordingly, the matter should be returned to the Tribunal for the determination of the issue left undecided by it, namely whether the respondent is entitled to a pension on that alternative basis.
It is most unfortunate that this matter, which has already had a long history, should have to be further heard before the Tribunal but we see no escape from that conclusion. The orders made by Wilcox J should, however, be varied by substituting for his Honour's order (Order 2) that "The decision of the Administrative Appeals Tribunal of 7 April 1989 be set aside and the matter be remitted to the Tribunal for further hearing and determination according to law" an order in the following terms:
"The decision of the Administrative Appeals Tribunal of 7 April
1989 be set aside and the matter be remitted to the Tribunal to
determine whether the material before the Tribunal raises a
reasonable hypothesis connecting the respondent's condition of
hypertension with his consumption of alcohol and, consequently,
with his war service."
Otherwise the appeal should be dismissed. We would not disturb the order for costs made by Wilcox J, but would make no order as to the costs of the appeal.

[1991] FCA 230

03 MAY 1991