Repatriation Commission v Campbell, Nancy Mary

[1984] FCA 67

Re: REPATRIATION COMMISSION
And: NANCY MARY CAMPBELL
No. QLD 2 of 1984
Repatriation - Defence and War
1 FCR 249

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.(1)

CATCHWORDS

Repatriation - pension payable to dependants - death of former member of the Forces from astrocytoma right cerebral hemisphere- aetiology of cerebral astrocytoma unknown - whether astrocytoma "connected with" war service - failure of Commission and Tribunal to implement the statutory process - no proper investigation of claim - error of law.

Repatriation Act, 1920 - ss. 47(2), 48, 101, 107Vg, 107VH, 107VH(2)

Defence and War - Ex-servicemen - Pensions - Repatriation Tribunal - Nature of proceedings before - Not adversary - Onus of proof - Whether adequate evidence to make finding - Repatriation Act 1920 (Cth).

HEADNOTE

The Repatriation Review Tribunal determined that the dependants of a deceased ex-serviceman were entitled to a pension payable in accordance with the Repatriation Act 1920 (Cth), Div. 1, Pt III. The ex-serviceman died of a disease the cause of which was unknown. On appeal.

Held: (allowing the appeal) (1) It was an error of law for the Repatriation Review Tribunal to proceed on the basis that the proceedings were adversary and that the onus was cast on the Repatriation Commission to disprove, beyond a reasonable doubt, the presence of a relationship between war service and death. Repatriation Commission v. Williams (1984) 1 FC.R 245, followed.

(2) Rather the Tribunal had a duty to examine adequate medical evidence to explore what if anything caused or contributed to the disease, the possible period until the development or manifestation of symptoms of that incapacity and/or resultant death and the possibility of a connection between war service and the disease either generally or in the specific instance.

HEARING

Brisbane, 1984, March 6, 30. #DATE 30:3:1984

APPEAL.

This was an appeal from the decision of the Repatriation Review Tribunal pursuant to the Repatriation Act 1920 (Cth).

R. E. Cooper Q.C. with D. McGill, for the applicants.

D. F. Jackson Q.C. with D. Cooper, for the respondents.

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

Solicitors for the respondents: Cannan & Peterson.

B. A. GRAY

ORDER

The appeal be allowed.

The decision of the Repatriation Review Tribunal given on 12 December 1983 be set aside.

The matter be remitted to the Tribunal to be determined according to law after the hearing of appropriate further evidence.

The Repatriation Commission pay to the respondent her costs in connection with the appeal to be taxed if not agreed upon.

Orders accordingly.

JUDGE1

The Repatriation Commission has appealed from a decision of the Repatriation Review Tribunal given on 12 December 1983. The Tribunal set aside a decision of a delegate of the Repatriation Commission made on 12 August 1983 and substituted for that decision a decision that the Commonwealth is liable, pursuant to s.101 of the Repatriation Act 1920 ("the Act"), to pay to the dependants of Lawrence Cyril Campbell the pension payable in accordance with Division 1 of Part III of the Act in the case of the death of a member of the Forces with effect on and from 14 March 1983.

1. This is still another of the numerous cases brought to this Court in which it is contended that a body appointed by the Act to determine claims under the Act has erred in law in the application of the statutory requirement that the claim be allowed unless the adjudicating body is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim: sub-ss. 47(2) and 107VH(2).

2. The primary cause of Mr Campbell's death was astrocytoma right cerebral hemisphere. The cause of Mr Campbell's astrocytoma is unknown. The only dispute concerns the Tribunal's conclusion that it was not satisfied beyond reasonable doubt that Mr Campbell's death was not or might not have been "connected with" his war service in a way which satisfied s.101 of the Act.

3. Mr Campbell was knocked down by a car on 12 April 1943 during his war service. It seems to have been accepted that trauma may cause cerebral astrocytoma. However, the Tribunal held that the head injury which he then suffered was not related to the development of the incapacity which caused his death. It did not explain the basis of that conclusion other than to say that it accepted the medical evidence that there was no relationship. There was no express consideration given to the possibility that Mr Campbell might have suffered some other trauma during his war service. However, there was medical evidence dealing with Mr Campbell's head injury in his accident which was equally applicable to any trauma during that period.

4. Mr Campbell's war service concluded on 30 August 1946. There was evidence from Mrs Campbell that her husband had suffered from headaches for very many years since the war. The Tribunal gave no indication whether it accepted or rejected that evidence. Apart from the evidence of Mrs Campbell concerning her husband's headaches, there was evidence that Mr Campbell had significant headaches for at least four years prior to his death on 30 October 1975. There was no evidence that there were other symptoms suggestive of astrocytoma until April 1975.

5. A departmental medical officer prepared a report pursuant to s.48 of the Act. There is nothing to indicate that he was aware of Mrs Campbell's evidence concerning her husband's headaches. In any event, it is clear that the Tribunal was unimpressed with the departmental medical officer's opinions. The departmental medical officer's report suffers the common vice that it contains some passages which are mere assertions of generalised and unreasoned conclusions which can add nothing to such opinions, if any, as are elsewhere expressed and explained: cf. Miller v. Minister of Pensions (1947) 2 All ER 372,374. See also Mansfield v. Minister of Pensions (1947) 1 WPAR 489, 493.

6. Even when he did descend to detail, the departmental medical officer failed to address himself fully to the correct issues. In dealing with the period which had elapsed since Mr Campbell's war service, he concerned himself with the maximum possible period between the development or the manifestation of symptoms of a cerebral astrocytoma and diagnosis, and concentrated his attention on excluding the possibility that "the tumor could have developed during or been first manifested during his war service". His report did not address the possibility that a cerebral astrocytoma might not develop or the symptoms might not become manifest until after war service although caused or contributed to by war service.

7. In dealing with the departmental medical officer's report, the Tribunal said:
   
   

"...evidence has been given in cases before the Full Federal Court and the High Court concerning the development of cancers, and this evidence is to the effect that there can be a long lead time between an initial insult to a cell and the actual diagnosis of the cancer. It is admitted that the cause of the disease is unknown, and the Tribunal cannot see how it can truly be said that time lapse since war service has excluded war service from being involved in the initial insult;"

While I do not suggest that in an appropriate case the Tribunal can never have regard to material not proved before it in respect of the particular claim (see ss. 107VG and 107VH), there are obvious limitations, including the need, required by natural justice,that those affected be given an opportunity to comment. In Repatriation Commission v. Evans, unreported judgment delivered on 21 December 1983, the Tribunal relied on evidence given in Lennell. Northrop J. said:

"The Court does not know whether any member of the Tribunal possesses specialist medical skill or qualifications which would enable it to determine the relevance of the evidence. In the absence of such medical expertise, due caution should be exercised and, in my opinion, the evidence should not be regarded as relevant of itself. It is true that inevitably the Tribunal will acquire through practice a degree of understanding of these matters. Indeed, the evidence led in re Lennell was familiar to the members of the Tribunal and had been applied in a number of cases. However, mere familiarity does not of itself amount to expertise or skill and the reference to the evidence led in that case, rather than to the general medical propositions, may indicate a lack of such expertise in the Tribunal such that it should, in exercising due caution, have placed no reliance on that evidence."

1. The Tribunal's approach in the present case also contains other difficulties.

2. The departmental medical officer's report noted that Mr Campbell was in the age group which showed the highest incidence of cerebral astrocytomas in adult life. The Tribunal said, quite correctly in my view, that that did not prove that Mr Campbell's astrocytoma could not have been connected with war service - the "not" was omitted, obviously by inadvertence, from the Tribunal's reasons. However, it does not follow that the fact that Mr Campbell was in the age group which showed the highest incidence of cerebral astrocytomas in adult life was not an appropriate factor to be brought into account by the Tribunal with other matters (including the period which had elapsed since Mr Campbell's war service) in arriving at its conclusion. Further, the Tribunal did not discuss or make any express finding in relation to the evidence of Professor John H. Tyrer, Head of the Department of Medicine, University of Queensland. Professor Tyrer thought that the possibility that a head injury during Mr Campbell's war service might have been a factor in the subsequent development of a cerebral astrocytoma was "extremely remote". However, there is nothing to indicate whether Professor Tyrer was made aware of Mrs Campbell's evidence that her husband had suffered from headaches for very many years since the war.

3. As is by no means uncommon, a specific possibility connected with war service, namely that Mr Campbell's cerebral astrocytoma may have been caused or contributed to by a particular trauma during the war, was impermissibly allowed to become the central if not the sole issue, and most at least of the medical experts' attention was concentrated on the incident in which Mr Campbell was struck by a car in 1943. Were it the case that cerebral astrocytoma must always be traced to trauma, for the reasons which I have mentioned the expert evidence might have been a questionable basis for excluding trauma during the war as a real possibility, particularly without any investigation directed to establishing whether there was any other trauma at another time which could have caused Mr Campbell's astrocytoma. In any event, the Repatriation Commission could contend at most that the evidence established beyond reasonable doubt that the cause of the astrocytoma was not a trauma during Mr Campbell's war service. It is unnecessary to consider that further because it is insufficient.

4. The Tribunal did not refer to any evidence before it concerning whether cerebral astrocytoma could be caused other than by trauma but it was apparently convinced of that possibility. It said:
   
   

"...no mention has been made of all the other causes of astrocytoma."

So far as can be told from the Tribunal's reasons, neither Professor Tyrer nor the departmental medical officer expressed any direct opinion concerning what, if anything, other than trauma can cause or contribute to cerebral astrocytoma or concerning the possible period until the development or manifestation of symptoms of that incapacity and/or resultant death and there was no exploration of the possibility of a connection between war service (apart from trauma) and cerebral astrocytoma, either generally or in Mr Campbell's case in particular.

1. The Tribunal said:
   
   

"... if the Commission fails to produce evidence to disprove beyond reasonable doubt the presence of a relationship between war service and death, the claim must be granted. This is a heavy burden for the Commission to discharge, especially where the death is caused by disease of unknown aetiology."

Later it described the issue as being:

"... notwithstanding that the cause of the disease which led to the member's death is unknown, has the Commission demonstrated beyond reasonable doubt that the cause could not have been related to war service."

The Tribunal's conclusion was expressed as follows:

"Having considered the evidence in its entirety, the Tribunal finds that the cause of Mr Campbell's astrocytoma, which was the cause of his death, is unknown. The cause being unknown, the Tribunal, for the reasons set out above, is not satisfied beyond reasonable doubt that the possibility of a relationship between his death and his war service has been excluded."

1. On the state of the material as it appears from the Tribunal's decision, it was not an adequate performance by the Tribunal of its statutory function to proceed on the footing that the proceedings were adversary and the Commission had failed to discharge the onus upon it. There was no proper investigation of the claim. Insofar as it could be said that, on the material, the Tribunal could not be satisfied beyond reasonable doubt that, whatever the cause of Mr Campbell's astrocytoma, it was not "connected with" war service, that inability presently stems not from the material but from the failure of the Commission and the Tribunal to implement the statutory process. For reasons which I have given in Repatriation Commission v. Williams, judgment delivered today, it follows that the Tribunal's decision is affected by error of law.

2. The Court orders that the appeal be allowed, the decision appealed from be set aside, and the matter be remitted to the Tribunal to be determined according to law after the hearing of appropriate further evidence, and that the Repatriation Commission pay to the respondent her costs in connection with the appeal to be taxed if not agreed upon.