Repatriation Commission v Cruise, G

[1994] FCA 634

REPATRIATION COMMISSION v. GWENDOLINE CRUISE
No. VG511 of 1992
FED No. 634/94
Number of pages - 8
Defence and War
(1994) 35 ALD 69

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
JENKINSON J

CATCHWORDS

Defence and War - Defence Forces - Ex-Servicemen (Veterans) - Pensions allowances and other benefits - Qualification for benefits - Connexion with war or defence service - Disease contracted before or during "operational service" - Meaning considered of requirement that "the .... disease was contributed to in a material degree by .... any eligible war service .... rendered after the veteran .... contracted that disease."

Veterans' Entitlements Act 1986 - s.8(1)(e)

HEARING

MELBOURNE, 20 and 21 June 1994
#DATE 12:9:1994

Counsel for the Applicant: Mr. N. Green

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr. J. O'Brien

Solicitors for the Respondent: De Marchi and Associates

ORDER

1. The appeal be dismissed.
2. The respondent's costs of the appeal (including costs reserved) be paid by the applicant.
(Note: Settlement and entry of orders is dealt with in Order 36 of th e Federal Court Rules.)

JUDGE1

JENKINSON J Appeal from a decision of the Administrative Appeals Tribunal.

1. Laurence Colgan Cruise died on 24 July 1984. It is common ground that the cause of his death was myeloblastic leukaemia and that condition was caused by polycythaemia rubra vera, to which he had been subject for many years. Polycythaemia rubra vera ("PRV") is a disease of unknown aetiology. Mr. Cruise served in the Royal Australian Air Force from 22 June 1943 to 25 October 1945, in New Guinea from December 1943 until June 1945. During the latter period he was rendering "operational service" and "eligible service", within the meaning with which those expressions are invested by, respectively, s.6(1)(a) and s.7(1)(a) of the Veterans' Entitlements Act 1986. Although some evidence before the Tribunal suggested a possibility that the PRV from which Mr. Cruise died was contracted while he was rendering operational service in New Guinea, the Tribunal did not unequivocally express a finding either that the contraction of the disease occurred during that period or that a reasonable hypothesis connecting Mr. Cruise's death with the circumstances of the particular service rendered by Mr. Cruise in New Guinea included the hypothesis that the contraction of the disease occurred during that period.

2. Mr. Green of counsel for the applicant Commission submitted that there was an indication in the Tribunal's reasons for its decision that the Tribunal did find reasonable a hypothesis that the contraction of the disease occurred during that period. Sub-section 8(1)(e) of the Veterans' Entitlements Act 1986 provides:
   

"Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

........ ........ ........ ........ ........ .......

(e) the injury or disease from which the veteran died:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease."

1. Mr. Cruise was a "veteran", that word being defined in sub-section 5(1) to mean "a person (including a deceased person) who is, by virtue of section 7, to be taken to have rendered eligible war service". PRV is a "disease", being a "physical ... morbid condition ... of gradual development" and so within the defined meaning of that word in the Act, but not an "injury", the definition of which excludes "disease". Mr. Green submitted, correctly as I hold, that the opening clause of sub-paragraph 8(1)(e)(i) is to be read thus:
   

"if .... the injury from which the veteran died was suffered or the disease from which the veteran died was contracted while the veteran was rendering eligible war service."

That reading, which idiom suggests, is confirmed by the final clause of paragraph 8(1)(e), and by similar usage elsewhere in the Act, of "suffer" with "injury" and "contract" with "disease".

1. Sub-sections 120(1) and 120(3) of the Veterans' Entitlements Act 1986 provide:
   

"(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.

........ ........ ........ ........ ........ .......

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

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

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

(c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."

1. The Tribunal stated its conclusions, concerning the existence of a reasonable hypothesis connecting Mr. Cruise's death with the circumstances of the particular service rendered by him in New Guinea and concerning their lack of satisfaction beyond reasonable doubt that there is no sufficient ground for determining that his death was war-caused, in paragraphs 39 and 40 of their reasons for decision. Those paragraphs read:
   

"39. In these circumstances we conclude that the whole of the material before us does raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by Mr Cruise. We are satisfied that the evidence raises a reasonable hypothesis that the disease of PRV was suffered while Mr Cruise was rendering war service but did not arise out of that service but that the progress of the disease was contributed to in a material degree by Mr Cruise's service after contracting the disease, even though it was not diagnosed until much later.

40. The High Court in Bushell's case said (at p.6): `But once the material raises such a hypothesis, the operation of s.120(3) is spent and the case falls to be determined in accordance with s.120(1). That is to say, the Commission must determine that the injury etc. was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination.'

There is no evidence satisfying us beyond reasonable doubt that there is no sufficient ground for making a determination that Mr Cruise's death was war-caused. The determination under review will therefore be set aside. In substitution the Tribunal determines that the death of Mr Cruise from acute myeloblastic leukemia and polycythaemia rubra vera, a form of myeloproliferative syndrome, was war-caused."

1. It is apparent that the Tribunal was considering the application of sub-sections 120(3) and 120(1) of the Act to the evidentiary material before it in the sequential order prescribed by the High Court : Bushell v. Repatriation Commission (1992) 175 CLR 408; Byrnes v. Repatriation Commission (1993) 177 CLR 564. The Tribunal's use of the word "suffered" in the second sentence of paragraph 39 suggests that the Tribunal thought the verbs "suffered or contracted" in sub-paragraph 8(1)(e)(i) were both available for collocation with "disease" in the sub-paragraph. The first part of the sentence is expressed in the language of that sub-paragraph and no reference is made in paragraph 39 to the alternative condition specified in sub-paragraph 8(1)(e)(ii). Mr. Green submitted that it was uncertain whether the Tribunal had intended the word "suffered" in that sentence to indicate the inception of the disease at an unspecified time within the period of operational service or the existence of the disease throughout that period. (It is clear that by "war service" the Tribunal intended reference to Mr. Cruise's "operational service" in the defined meaning of that expression, because the application of sub-sections 120(1) and 120(3), in relation to a claim under Part II of the Act for a pension, is confined to a claim which relates to operational service.) If the latter meaning were intended the statement of the finding that "the disease of PRV .... did not arise out of that service" seems otiose : the existence of the disease at the time the period commenced precludes a finding that it "arose out of" that service. Further, the Tribunal's finding that it was "after contracting the disease" that "the progress of the disease was contributed to in a material degree by Mr. Cruise's war service" suggests that the Tribunal had in mind both the contraction and the progress as events occurring during the period of operational service.

2. Before considering further the statements in paragraphs 39 and 40 of the Tribunal's reasons for decision I record some of the evidence. PRV is characterised by excessive proliferation of red blood cells in the bone marrow. It runs a long and often very indolent course over as many as four decades and not uncommonly terminates in the acute leukaemia which caused Mr. Cruise's death. There was uncontradicted evidence by an eminent haematologist, Professor Penington, that the disease had probably been contracted by Mr. Cruise at least ten years before June 1955. That finding he inferred from a number of signs and symptoms which the evidence disclosed as having been manifested at various times between 1942 and Mr. Cruise's death. Professor Penington, in one of the letters from him received in evidence, wrote:
   

..."it is very possible that the polycythaemia was already present whilst he was in New Guinea and that this would have contributed to his indigestion and his taking a very poor diet during that time. The very poor diet and his general ill-health would have contributed to the progress of the polycythaemia."

(What is there said to be "very possible" was said in a later letter received in evidence to be "quite probable.") That Mr. Cruise was in New Guinea suffering indigestion and taking a very poor diet is shown by a statement of his widow, the respondent, of her husband's description of his life there, which the Tribunal accepted. The last sentence in the passage from which I have quoted was the subject of this observation by the Tribunal at the end of paragraph 37 of its reasons:

"In this matter Professor Penington clearly advanced the hypothesis that:

`The very poor diet and his general ill-health (during service) would have contributed to the progress of the polycythaemia.'"

Paragraph 38 of those reasons reads:

"38. So far from describing that hypotheses as `fanciful, impossible, incredible or not tenable or too remote or too tenuous', Dr Parkin gave examples of ways in which the conditions of Mr Cruise's service could have caused or contributed to complications of the disease or could have rendered a dormant retrovirus active. He also specified matters, namely the unusually early age of onset and the unusually lengthy course of the disease after Mr Cruise had completed his service, which he thought pointed to the hypothesis that military service in the tropics could have been active in determining the time when Mr Cruise developed the disease. In his report of 18 September 1982 Dr Parkin also commented on the only other case of early onset of PRV and long survival which he had personally seen and on one other similar case reported in the medical literature, as examples of the `atypical onset and survival in relation to a specific environmental factor impacting on a serviceman in the tropics.' As already stated, Professor Fox also gave some qualified support to the hypothesis advanced by Professor Penington and certainly did not describe it as unreasonable."

Dr. Parkin was a haematologist with long experience of PRV. Included in his oral evidence to the Tribunal was the following:

"So you are not saying that the hygienic problems and the like affected the PRV itself?---No, I can't say that I am aware of any evidence where a lifestyle would actually cause the disease, only that it might aggravate the complications of the disease."

Asked to look at the passage I have quoted from one of Professor Penington's letters, Dr. Parkin was questioned:

"See where it says the very poor diet and his general ill health would have contributed to the progress of polycythaemia. Can you tell the tribunal what you understand the professor to be saying there?---I do not. I do not know what the professor is driving at in terms of that. I mean if he is talking about complications, which was what I was talking about previously, I can understand there are a whole blether of complications of polycythaemia which might be aggravated in someone who had a very poor and debilitate lifestyle. But the actual progress of the disease I am not in any way aware that the disease progression would be influenced by hygiene and poor nutrition and factors like that."

Professor Penington had written:

"It is quite true that the cause of the disease is unknown but current research strongly points to the possibility of retroviruses or through oncogenes."

Dr. Parkin gave the following evidence:

"But retroviruses are viruses which actually gain access to a cell and insinuate themselves into the actual genetic material of the cell and stay dormant there for many years but can become active and actually have the products of those viruses expressed in the cells, some of which clearly can cause a cell to become malignant. So that this activity of retroviruses may be a very insidious activity. They are not necessarily associated with clinical infection or clinical infection that we can time in relationship to the cancer.

Well, if the veteran had a retrovirus before he ever went to service, could the difficulties of service conditions have been the sort of thing that would stop that retrovirus from being dormant and make it develop into the PRV?---Or if I can put it another way. The retrovirus might just be one of a number of events. And other events which occur during service may have been additive to the effect of the retrovirus. Well what events during service may have been additive?---I cannot identify those events because in asking me to identify them is really the same as asking me do I know the cause of the disease. Which I do not know. But I can make two observations in relation to this man's disease. One is that the median age, the kind of average age of onset of this disease is in the sixth decade of life. There is lots of evidence to support that. Although the incidence can occur from very young to very old, it is mostly people in their fifties, sixties, seventies. So it is a disease of older people. And for somebody to develop this disorder when they are in the twenties or thirties would suggest to me that some environmental factor was acting in that case, which was different to the environmental factors which acted in people who developed the disease at the age of sixty, which is a very common event. I have had very substantial experience in looking after people with polycythaemia rubravera and I have never seen it actually presenting in a person under the age of 40. Now it is recorded that it often does. I have not seen it in my experience. So it is a disease of old people. So I would like to make the point that a man developing this disorder in his twenties or thirties, I would have think is there something in his environment or lifestyle which is different. And clearly military service could have been such an event. The other point about this disorder is the average age of survival. And most patients the median survival of polycythaemia rubra vera is somewhere about 10 to 14 years. So, most people who develop it at the age of sixty die with it in their seventies. This man in fact lived with this disease for many many years. So not only did it occur at a very young age, but it actually pursued a very indolent natural history which would also to my mind make the disease unusual. Not very very rare, but very unusual. So that there is two factors in this man. The fact that he developed the disease when he was very youthful, and the fact that the disease pursued a surprisingly indolent course would suggest to me that intrinsic within the disease and the cause of it were factors which are not factors which operate normally. Now that is speculation, but I think reasonable speculation."

........ ........ ........ ........ ........ ....... "Do you think there is any - is it reasonable to suggest that the disease might have run a different course if he had not - well, I suppose you would have to say, yes, because it might only have arisen because of his service; we just do not know exactly?---I guess - that's the point that I was trying to make; that it came on at a very young age, that it pursued a very unusual natural history, therefore it was reasonable to look in his lifestyle for some factor that was different in him to other people who develop polycythaemia rubra vera; and the only momentous thing in his life was military service in the tropics."

1. Whether it was a progression in one or more of the "blether of complications" or a progression in the PRV itself to which Professor Penington intended reference, there is nothing in the evidentiary material of which he was the author to suggest that he was advancing any opinion or hypothesis concerning a causal relationship between Mr. Cruise's contraction of PRV and poor diet or between that contraction and his general ill-health. Dr. Parkin, on the other hand, was advancing what he called a "reasonable speculation" about a causal relationship between the contraction of PRV (the process whereby the activation of the postulated intra-cellular retrovirus leads to excessive proliferation of red blood cells) and what is called in s.120(3) "circumstances of the particular service rendered by" Mr. Cruise. Returning to a consideration of paragraph 39 of the Tribunal's reasons, I note that the language of that part of paragraph 8(1)(e) of the Veterans' Entitlements Act 1986 which follows sub-paragraph (ii) thereof is similar to, but also significantly different from, the language in which liability to pay compensation is, and was when the Veterans' Entitlements Act 1986 was enacted, prescribed in Commonwealth employee compensation legislation. In both paragraph 8(1)(e) and the compensation legislation contribution of war service or employment to disease is stated to be a condition of entitlement. But in the compensation legislation that contribution is stated as a condition both in respect of the contraction of the disease and its aggravation. Section 29(1) of the Compensation (Commonwealth Government Employees) Act 1971, which was in force when the Veterans' Entitlements Act 1986 was enacted, provided:
   

"Where -

(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of this section have effect."

But in the Veterans' Entitlements Act 1986 the definition of disease excludes "aggravation" from its ambit. Section 5 provides that unless the contrary intention appears, "`disease' includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development, and the recurrence of such an ailment, disorder, defect or morbid condition, but does not include the aggravation of such an ailment, disorder, defect or morbid condition." Because it was desired to have treated as "war-caused" any disease aggravated by any eligible war service, aggravation was made the subject of separate treatment in paragraph 8(1)(e). But it does not follow that the contribution of that service to disease, as distinct from aggravation, of which that paragraph speaks is contribution to the contraction of the disease. The terms of the paragraph preclude a contribution to the contraction of the disease because the contributing war service is limited by the final phrase of the paragraph to "service rendered after the veteran suffered that injury or contracted that disease".

1. The passages from the evidence of Dr. Parkin which I have quoted are quoted by the Tribunal in two of the four paragraphs of the reasons for decision which immediately precede paragraph 38. In those four paragraphs the Tribunal also made an unexceptionable statement of some of what had been propounded by the High Court about the expression "reasonable hypothesis" in s.120(3). The applicant assigns error of law to the Tribunal's acceptance of Dr. Parkin's hypothesis concerning the contraction by Mr. Cruise of PRV and acceptance also of Professor Penington's hypothesis. It was submitted that the two were contradictory. It is, I think, clear from a reading of the whole of the Tribunal's reasons in the light of the evidence to which I have referred that the word "suffered" in the second sentence of paragraph 39 of the reasons was intended to signify contraction of the disease. There is in my opinion no contradiction between the two hypotheses. The one has nothing to say about contraction, the other has nothing to say about the effect of war service rendered after contraction.

2. It was submitted that Dr. Parkin's evidence that he was not aware that the progress of PRV would be influenced by the circumstances which Professor Penington said would contribute to that progress raised a conflict between the two witnesses and that the Tribunal's failure to state which opinion it accepted constituted a failure to state its reasons for the decision in accordance with the law's requirements. There are, I think, two answers to the submission. One is that what Dr. Parkin called complications are morbid conditions which PRV commonly causes to occur in the patient, as for example thrombotic episodes, peptic ulceration and enlargement of the spleen. The occurrence of such a morbid condition in a person who has the disease is part of the progress of the disease, and a symptom of the disease. When that is understood no conflict is in my opinion to be found, for it is likely that by the expression "progress of the polycythaemia" Professor Penington intended to comprehend, if not exclusively to denote, the development of such morbid conditions in the patient. The other answer is that it can safely be inferred from the penultimate clause of the second sentence in paragraph 39 that, if there was a conflict, the Tribunal made its finding in favour of Professor Penington's evidence.

3. There remains a question as to the proper construction of the words "the injury or disease was contributed to in a material degree by .... any eligible war service rendered by the veteran". In the case of injury that has been suffered, in what sense may it be said that the injury was contributed to by events occurring after it was suffered? Events or circumstances which prevent or impede or delay the normal course of recovery from an injury are not in ordinary usage described as contributing to that injury. It is perhaps less difficult to accept as common usage the statement that events or circumstances which prevent or impede or delay the normal course of recovery from a disease contribute to that disease, and the statement that events or circumstances which hasten the progression of a disease contribute to that disease. Authorities expounding phrases in compensation legislation which include the word "contributing", such as Favelle Mort Ltd. v. Murray 1976) 133 CLR 580 and Treloar v. Australian Telecommunications Commission 1990 97 ALR 321, are of limited assistance because the contribution contemplated in the legislative provisions under consideration in those authorities is to the contraction of the disease or to the aggravation, acceleration or recurrence of the disease, not to the already contracted disease. I was referred to no authority upon the proper construction of the concluding clauses of paragraph 8(1)(3). I say no more than that in my opinion the disease PRV "was contributed to in a material degree by ... eligible war service", within the meaning of those words in that paragraph, if events or circumstances involved in the rendering of that service were among the causes of those changes in the disease process (whether by way of symptoms or "complications", in the sense of that word indicated by Dr. Parkin, or by way of increase in the degree of red cell proliferation) which would mark the normal progression of PRV and if that causal contribution was "in a material degree".

4. It was submitted on behalf of the applicant that the evidentiary material before the Tribunal did not provide any basis for either of the hypotheses accepted by the Tribunal in paragraph 39. That submission cannot be accepted in relation to Professor Penington's opinion. His inferred opinion that the PRV had been contracted at least ten years before June 1955 had the support of a substantial body of medical evidence concerning Mr. Cruise's clinical states on a number of occasions during the period from 1942 until his death and also his wife's description of his apparent state of health (before service in New Guinea) and of ill-health (after service in New Guinea) until 1955. His opinion concerning the contribution of diet to the progress of the disease had the support of Mrs. Cruise's evidence of Mr. Cruise's statements to her. It is unnecessary that I express a conclusion about the submission in relation to Dr. Parkin's hypothesis concerning the contraction of the disease. The conditions prescribed in sub-paragraphs (i) and (ii) of paragraph 9(1)(e) are alternatives : satisfaction of either justifies the conclusion that the disease shall be taken to be a war-caused disease.

5. The appeal must be dismissed with costs.