Repatriation Commission v Dunlop, Olga Pauline

[1984] FCA 171

Re: REPATRIATION COMMISSION
And: OLGA PAULINE DUNLOP
No. G43 of 1983
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Repatriation - war widows pension - death of former member of Armed Forces as the result of a stroke precipitated by hypertension - cause of hypertension unknown - consideration of onus and standard of proof provisions of Repatriation Act 1920 - analysis of facts of case and of Tribunal's decision.

Repatriation Act 1920, ss. 47, 107VH, 107VK and 107VZ

HEARING

SYDNEY

#DATE 22:6:1984

ORDER

1. The appeal be allowed

2. The decision of the Repatriation Review Tribunal of 8 February 1983 be set aside and the matter be remitted to the Tribunal to be heard and decided again.

JUDGE1

Yet again the Court is concerned with the onus and standard of proof provisions in the Repatriation Act 1920 ("the Act"). The Commission has appealed against a decision of the Repatriation Review Tribunal given on 8 February 1983 whereby the Tribunal set aside the decision of the Commission made on 16 January 1980. The Tribunal found that the Commission was liable to pay to the dependants of one Bert Davey Dunlop deceased, the pensions payable in accordance with Division 1 of Part III of the Act. The decision operated on and from 3 July 1978.

The case is one where it is said that the cause of the hypertension which eventually precipitated the death of the deceased is unknown. It is the fact that the cause of death is unknown that gives rise to the central problem in the case.

The principal matters which the Commission and the Tribunal had before them consisted of the service record of the deceased during World War II, a number of medical reports and histories and certain medical opinions. The service record shows that the deceased enlisted in the Army on 26 June 1942. On 19 October 1942 he was sent to the Northern Territory where he arrived on 1 November 1942. On 8 June 1943 he was transferred to the Australian Imperial Force. He spent most of the war at various places in the Northern Territory. He was discharged in Sydney on 3 December 1945 as the result of the end of the war. His record shows that he had a number of illnesses during his service years but none of these is particularly relevant to the present case.

In 1971 he made application for a pension because of problems with his sight and hearing. Again, these matters are not relevant to this case. In 1972 he was found to be suffering from diabetes. In 1975 and 1976 he was suffering certain digestive complaints but tests did not reveal any serious abnormality. In a medical report dated 27 February 1975 it was noted that he was suffering from ischaemic heart disease. At the end of 1975 he was involved in a motor accident and there was an investigation eventually to see whether he had suffered any cerebral damage. A lumbar puncture was performed in 1977. No abnormality was revealed.

In September 1977 he was found to have an enlarged heart, ischaemic heart disease with atreal fibrillation and heart failure. He was admitted to hospital where he remained from 6 December to 13 December 1977. His symptoms improved significantly during the week he was in hospital and "he was discharged well." He died on 1 May 1978 at the Mona Vale District Hospital to which he had been admitted the day before as the result of a stroke. Dr. Glerum, who certified the causes of his death said that they were, "I Cerebral haemorrhage, II Hypertension, cardiomyopathy."

The claim made by the widow of the deceased, the present respondent, on 6 November 1978, said, amongst other things, "My husband died in Mona Vale Hospital this year on May 1st. My claim is that war must have very bad effects on a person's health & that any man who gives his life for his country is entitled to some consideration & in my case his wife be given a war widow's pension to ease hardship."

On 13 November 1978 Dr. Warner reported on the cause of the death of the deceased. He noted the causes of death (which probably came from the death certificate) as "I Cerebral haemorrhage, one day, II Hypertension, years, cardiomyopathy, years." Dr. Warner added,

"The leading cause of death in this case is hypertension which led to the fatal cerebral haemorrhage. Clinical notes in the file reveal that the veteran also suffered from Ischaemic Heart Disease which would be causally related to hypertension. Cardiomyopathy was a coexisting disease which did not cause the death in this case. For aetiology of hypertension see insert underleaf."

Appended to Dr. Warner's report was a document headed, "Essential Hypertension." The document distinguishes between primary and secondary hypertension, primary hypertension being otherwise known as essential hypertension. The document then deals with the aetiology of essential hypertension. It says that the precise aetiology of the condition is not known but that it is considered to have a multifactorial cause and a number of facts are known about it. Eight causes are listed and dealt with. These are, in the terms used in the document, "Genetic or Hereditary, Age, Race and Socio-Economic Factors, Hypertension is Common in Australia, Body Build, Sex, Salt Intake and Emotional Stress." Under the latter heading the following appears:-

"Although emotional stress has often been suggested as a cause of essential hypertension, the scientific evidence does NOT support this. Emotional stresses can certainly cause temporary elevation of blood pressure, but there is no convincing evidence that they produce the disease essential hypertension. In one study commanding great respect William Evans found NO increased incidence of essential hypertension in a long term study of recruits with labile blood pressure. (Wm. Evans - 'Diseases of the Heart and Arteries').

Dr. Warner later said:-

"In our present state of knowledge it can be said that the main factors recognised by medical authorities as being of prime importance in the development of essential hypertension are

(a) an inherited tendency to develop the disease

(b) ageing which, in due course, allows the inherited factors to operate successfully.

Emotional stress or disturbance is NOT considered to be of significance.

In this case the main causes of the essential hypertension ara: 1) Genetically predetermined factors. There is a positive family history of cardiovascular disease in this case - father + of heart disease. 2) Age. The incidence of raised blood pressure readings increases with age. 3) Environmental factors such as affect people living in a Western highly urbanised community, such as our own. Hypertension is very common in Australia, U.S.A., and other Western societies but is much less common in the developing world. However, it has been noted to be on the increase in places where urbanisation occurred. 4) Possibly another factor is excessive salt intake. Some authorities believe it to be a contributing factor. Hypertension in this case contributed partly to Ischaemic Heart Disease and vertebro basilar insufficiency (See clinical notes). There are no factors on service known to influence the onset of hypertension."

The emphasis is that of Dr. Warner.

Dr. Warner then answered a number of questions upon which his advice was asked. The questions and his answers are as follows:-

"OCCURRENCE: Set out whether, in your opinion, the incapacity from which the veteran has died resulted from an occurrence that happened during his eligible period/s of service. ELIGIBILITY PERIODS: 26/6/42 to 3/12/45 No. There is no evidence of hypertension, atherosclerosis, Ischaemic Heart Disease or any other cardiovascular disease in the service documents. Veterans heart and blood pressure were recorded as normal on examination prior to discharge (D2(a). None of the injuries or illnesses recorded in the service documents would have caused such a disability. ATTRIBUTABILITY: Set out whether, in your opinion, the incapacity from which the veteran has died, arose out of, or is attributable to his eligible period/s of service. No. It is most likely due to heredity (father died of heart disease), age and living in a Western highly urbanised society. There are no factors on service known to influence its onset. Not due to any factor or factors known to exist on service. State whether, in your opinion, the death has been caused by any service-related, or non-service related disability or the treatment thereof and the reasons for such opinion: No. If the cause of death includes more than one disability, state whether there is any causal relationship between them: Yes. Hypertension and Ischaemic Heart Disease and Vertebro Basilar insufficiency are causally related. AGGRAVATION: Set out whether, in your opinion, the incapacity from which the veteran has died has been contributed to in any material degree, or has been aggravated, by the conditions of his eligible period/s of service. ELIGIBILITY PERIODS: 26/6/42 to 3/12/45. No. Not prior to enlistment. I have studied the records relating to the veteran."

Upon the basis of this material the claim went to a Repatriation Board on 8 December 1978 which, for reasons which it gave, was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim.

On 5 February 1979 the widow wrote to the Board saying that she wished to appeal against its decision. Amongst other things she said:-

"Without war service it could be proved that he was subjected to tension & strain which you will agree can cause heart conditions in later years. The foundations of his complaint could have been laid during the war years so you will also agree there were many strains & stresses during those years."

On 16 January 1980 the Commission disallowed the appeal. In its reasons the Commission referred to Dr. Warner's report and to the service of the deceased. It concluded its reasons by saying:-

"The Commission accepts the opinion expressed by the departmental medical officer as a reasonable explanation as to the cause of the incapacity that led to death and the relationship of that incapacity to service. The Commission can find no basis for accepting that service was in any way responsible for the late member's death and is satisfied beyond reasonable doubt that insufficient ground exists to grant the claim. For these reasons, the appeal will be disallowed."

The widow then applied to the Tribunal for a review of the Commission's decision pursuant to s. 107VC of the Act. Before the matter came before the Tribunal a further medical opinion was sought from a Dr. Perkins. In a report dated 21 July 1981 he said:-

"1. The veteran served from 26.6.42 to 3.12.45 nearly all of this period in the Northern Territory. Although some degree of stress would be involved I do not consider that the nature of his service should have had any continuing effects. There is no evidence in the service records of any reaction at the time. There is no clear evidence of any stress reaction since but the widow told Dr. Abrahams of a personality change on 6.12.77 which I consider to be unrelated to his war service. I do not consider there were continued effects of stress from war service in this case.

2. The veteran suffered sudden loss of consciousness while at lunch on 30.4.78 and died the next day without regaining consciousness. Death was attributed to cerebral haemorrhage secondary to hypertension but there was no proof of haemorrhage and hypertension was not remarkable. He also had auricular fibrillation (probably due to cardiomyopathy but possibly also to ischaemic heart disease) which could have caused a cerebral embolism. The onset was too sudden for cerebral thrombosis.

3. If hypertension was present it developed after 17.2.77 and was mild. I do not consider it contributed to death. There was E.C.G. evidence of ischaemic heart disease in which factors such as age and diabetes mellitus would be involved. Diabetes mellitus was diagnosed in 1971 and was not related to war service. There is mention of effects of alcohol as a cause of his ataxia. The history of alcohol intake is too meagre to justify this (12.2.71 "social at weekends"; 9.5.77 "average 5 middies/week"; 17.8.77 "moderate to heavy" (?)) but a combination of cerebellar ataxia, cardiomyopathy and liver enlargement is consistent with organic effects of alcohol. If this were so I find no relation between such effects and his war service."

The matter came before the Tribunal on 10 December 1981. The presiding member thought that there was a conflict of opinion between Dr. Warner and Dr. Perkins as to the cause of death. He decided to request the Secretary of the Department of Veterans' Affairs to arrange for a further investigation. The hearing of the application was adjourned. On 5 January 1982 the presiding member wrote to the Secretary and requested, pursuant to s. 107VZ of the Act, that he arrange "for an independent vascular specialist, and if considered appropriate, other specialists to express an opinion concerning the cause of Mr. Dunlop's death and to the possible relationship of his war service to the conditions which caused his death." The presiding member added:-

"Having regard to the decision of the High Court in the Repatriation Commission v. Law concerning the onus of disproof beyond reasonable doubt, the specialist should be asked to provide an opinion, in relation to the questions asked, as to the range of possibilities in this case, that is, how likely or unlikely a particular conclusion is. He should say, if he can, whether there is or is not a real possibility that the Applicant's war service could have caused or contributed to the conditions causing the subject incapacity."

As a result of this letter Dr. Sevier, a Sydney physician, was asked to express an opinion. A copy of the letter was sent to him and his attention particularly drawn to it. Dr. Sevier was also furnished with the departmental summary relating to the deceased. I have already referred to the most relevant documents in that summary.

Dr. Sevier reported on 19 Auguust 1982. His report was marked "Confidential". The report is too long to set out at length but the more important paragraphs of it are as follows:-

"As requested, I have reviewed the summary (returned herewith), concerning the above-named, with particular attention to the Tribunal's letter of 5th January 1982. It is noted that the Veteran never claimed for any heart or vascular condition, even though sundry other complaints were dealt with in July, 1971 (only seven years prior to his death). He had married the present claimant in February, 1964. In 1971, he gave his hobby as golf, which does not suggest any serious cardio-vascular disorder at that time, and in 1977 , he was well enough to make an Overseas trip.

Having perused the summary, and the transcript of evidence before the Tribunal, it is my opinion that the most likely cause of Mr. Dunlop's death was haemorrhage from an atherosclerotic cerebral artery, due to hypertensive cerebro- and cardio-vascular disease. I consider that this disease is part of a generalised degenerative process, associated with ageing, and as such, is constitutional, rather than envoronmental in origin. Hence, I am of the opinion, that it is not related to War service either causally, or as regards aggravation or material contribution. The elapsed period of time (December, 1945 - May, 1978) between the end of his service and the cerebro-vascular accident, would tend to support this view.

The onset of his terminal illness, with sudden collapse, loss of consciousness, bilateral clonus and bilateral extensor plantar reflexes is far more suggestive of acute massive cerebral haemorrhage, rather than a localised cerebral embolus from a fibrillating auricle. His fundi showed Grade II hypertensive signs, which are frequently associated with atherosclerotic cerebral vessels.

The stated opinions of Drs Warner and Perkins, though differing, are not necessarily contradictory. Each Doctor is agreed that the actual cause of death was a sudden cerebro-vascular accident (whether haemorrhage or embolus) and as such was in in no way related to the Veteran's War Service. The presence of hypertension (other than its degree) is not disputed, nor is the presence of auricular fibrillation. The presumed presence of cardiomyopathy would have been one of the factors leading to cardiac enlargement and congestive cardiac failure (shortness of breath, etc.), the other main factor being the ischaemic heart disease - angina diagnosed in 1968, and the old (silent) anterior myocardial infarct diagnosed by Dr. D. Abrahams in September, 1977. The hereditary factor may well have played a part in the occurrence of coronary artery atherosclerosis (father's heart disease and mother's diabetes).

In conclusion, I must concur with the causes of death as stated on the Death certificate - cerebral haemorrhage, hypertension and cardiomyopathy, and repeat that, in my considered view, these causes were in no way related to the deceased's War Service. Under the circumstances, the question as to whether the auricular fibrillation was due to ischaemic heart disease, or to cardiomyopathy, is not really pertinent. It does seem that the cardiomyopathy probably had an alcoholic aetiology, as did the cerebellar degeneration."

On 20 January 1983 the matter came before a differently constituted Tribunal. On that day the Tribunal decided to set aside the decision of the Commission made on 16 January 1980 and to substitute a decision that the Commission was liable to pay to the dependants of the deceased the pensions payable in accordance with the Act. Written notice of the Tribunal's decision was issued in Sydney on 8 February 1983.

The Tribunal purported to give reasons for its decision. I have used the word "purported" because one of the submissions made on behalf of the Commission was that the Tribunal had not in substance given reasons, as it was required to do, with the result that, for this reason alone, there was an error of law.

After a general reference to the facts, the Tribunal referred to the decision of the High Court in Repatriation Commission v. Law (1981) 55 A.L.J.R. 694. Of the decision the Tribunal said:-

"In Nancy Law, the High Court of Australia ruled that, before a claim could be refused the Repatriation Commission had to disprove, or exclude, the existence of a relevant relationship to war service and the standard required was proof beyond reasonable doubt. Insofar as the Board relied on the statutory report, it is obvious to the point of demonstration that, in the absence of finite evidence on causation (not disregarding, in this regard, what was said in Lennell), the attribution of the fatal condition to a "most likely" factor, and the inherently unsatisfactory nature of what were termed "the main causes," as listed, its decision could not be regarded as complying with the principles in Law. In short that quality of evidence cannot reasonably be regarded as disproving the claim beyond reasonable doubt."

The reference to Lennell is a reference to the decision of the Full Court of this Court in Lennell v. Repatriation Commission (3rd February 1982, unreported).

The Tribunal then referred to the request made by the earlier Tribunal on 5 January 1982 for a further medical opinion.

The Tribunal said:-

"The Tribunal respectfully considers that there are questionable features about the step taken by the Presiding Member in this instance. It is of the opinion that, bearing in mind the onus which the Commission bore, the evidence was in a condition in which it should have been concluded - and apart from what has been stated above, this is reinforced by the uncertainty as to the cause of death - that, at that stage, the Commission had not discharged its onus. The Tribunal acknowledges that section 107VZ gives the Presiding Member authority to take this step, but it questions the necessity for doing so, having regard to the unambiguous statements on onus, and the implications thereof, by the High Court of Australia in Law. There is the additional factor of the statements in the Presiding Member's letter on the principles in Law. Reference was made to the High Court ruling concerning onus of disproof beyond reasonable doubt, as in Law, but the specialist was invited "to say, if he can, whether there is or is not a real possibility that the Applicant's war service could have caused or contributed to the conditions causing the subject incapacity." This latter test antedated the High Court ruling on "onus" and, while it may be regarded as more consistent with Court rulings in Law prior to the High Court decision, these rulings, so far at least as onus was concerned, have been made largely irrelevant, as also was the stated test.

By way of response to the Presiding Members' request, there was furnished, on September, 1982, to the Tribunal report - marked "confidential" - from Dr. John Sevier, F.R.A.C.P., (Honorary Consulting Physician, Sydney Hospital). The reason why the report was marked "confidential" is not obvious to the Tribunal, but, because of the statutory provisions, this fact limits the Tribunal's capacity to refer to it. The Tribunal could seek to be released from this limitation, but, for present purposes, it is not considered necessary to do so."

A number of things need to be said about these paragraphs. Firstly, I find no justification for the view of the Tribunal that it was unable to use the report of Dr. Sevier because it was marked "Confidential". The statutory provisions to which the Tribunal refer were not mentioned in argument. In any event, if there were a problem, the Tribunal could, as it itself mentioned, have sought to be released from any embargo. Indeed, I would go so far as to say that if there were such a problem, the Tribunal should have taken steps to have any embargo lifted.

Then the first of the quoted paragraphs seems to suggest that the earlier Tribunal should not have sought the additional medical opinion from Dr. Sevier but should have proceeded to dispose of the case upon the basis of the material before it. Notwithstanding the Tribunal's later acknowledgement that the proceedings before it were inquisitorial in character, there seems to be underlying this criticism the view that the proceedings are more adversarial than inquistorial. That is not the case. The position is the reverse. No doubt each Tribunal has a wide discretion to conduct proceedings before it in the manner it considers best. But in my view attempts such as were made by the earlier Tribunal to obtain assistance in the resolution of difficult cases are to be encouraged. In Repatriation Commission v. Bugg (27th July 1983, unreported) I referred to this problem (pp. 24-25). In that case the Tribunal had complained of the absence of evidence, argument and submission to assist it in the resolution of the case before it. I expressed my sympathy for what the Tribunal had said. I would, with respect, reject the view which seems to me to be implicit in the first of the quoted paragraphs of the Tribunal's decision in this case that the course of seeking assistance by the obtaining of a further medical opinion was in some way erroneous.

Finally, in relation to the quoted paragraphs of the Tribunal's decision it was submitted on behalf of the Commission that the provisions of s. 107VZ of the Act. pursuant to which the earlier Tribunal purported to seek the report, did not permit such a course. The relevant provision is para. (1)(c) which is as follows:-

"The presiding member in relation to a proceeding before the Tribunal may, at any time, request the Secretary -

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

(c) to arrange for the making of any investigation, or any medical examination, that the presiding member thinks necessary with respect to the proceeding, and to forward to the Tribunal a report of that investigation or examination."

Senior counsel for the respondent submitted that there was not involved either the making of an investigation or a medical examination. He said that medical examinations contemplated by the provision were of living veterans and that an investigation was limited to an investigation of factual matters arising from a serviceman's or woman's military service and medical history. I express no view on the meaning in the provision of the expression "medical examination." I am satisfied that what was here done was an "investigation" for the purpose of the section. I am satisfied therefore that the report of Dr. Sevier was properly sought by the earlier Tribunal, was properly before the Tribunal which made the decision and was material which it was obliged to take into account.

That may itself be sufficient to warrant the conclusion that there is disclosed an error of law in what the Tribunal has said. In saying what I have, I have not overlooked what the Tribunal said in the immediately following paragraph of the decision where the Tribunal expressed views on the significance of what Dr. Sevier had said. The trouble is that the Tribunal went on to say that it had disregarded Dr. Sevier's opinion. The paragraphs of the decision in which these matters appear are as follows:-

"It is sufficient to say that Dr. Sevier's report did not answer either of the questions posed by the Presiding Member. Nor is it sufficiently conclusive to satisfy the proper test under Law, and, in this regard, while a most powerful opinion on the ordinarily accepted basis of medical advice, the approach by Dr. Sevier was not dissimilar, and, therefore subject to the same deficiency on the law applicable in this case, as that provided by the Departmental Medical Officer in the statutory report. Dr. Sevier makes reference to "the most likely" cause of death; states that Mr. Davey's (sic.) father's death "may well have provided an hereditary factor in the veteran's subsequent demise" and expresses an opinion, without stating the evidentary foundation for it, that it "(did) not appear" that the deceased was subjected to much trauma or stress during war service.

The Tribunal finds that, in respect of the Board's decision dated 8 December 1978 and the Commission's decision dated 16 January 1980, the onus of disproving Mrs Dunlop's claim was not discharged and, therefore, the claim should have been allowed. As stated previously and for the reasons given, the action taken by the Presiding Member of the Tribunal (above) was questionable and the further opinion from Dr. Sevier need not have been obtained. For this reason, and for the purpose of this decision, the Tribunal disregards the opinion and contents itself with above observations.

The Tribunal will set aside the Commission's decision under review and grant Mrs Dunlop's claim."

The emphasis is mine.

I do not find it necessary to express a final view on whether the Tribunal's treatment of Dr. Sevier's report itself disclosed an error of law, but I incline to the view that it does. Be that as it may, I prefer to rest my decision on a broader basis. Before I state it, I should refer to some further matters.

Prior to concluding its reasons the Tribunal referred to some other decisions of the Tribunal and of this Court. After referring to these the Tribunal said:-

"Both the Federal Court and this Tribunal, not only in Kupfer but other cases also, has made decisions the effect of which was to grant claims, under the Repatriation legislation for essential hypertension. Having regard to the characterisation of this Tribunal as an administrative tribunal, operating at present within predominantly inquisitorial procedures, it would doubtless appear paradoxical and anomalous if the Tribunal did not make the same decision, while the evidence and the law applicable remain essentially of the same kind."

The reference to Kupfer is a reference to the decision of Franki J. in Repatriation Commission v. Kupfer (5th August 1982, unreported) and to the decision of the Tribunal in the same matter.

One of the principal matters argued was that the Tribunal had misdirected itself as to the standard of proof which it was to apply. Reference was made particularly to the decision of Toohey J. in Repatriation Commission v. Bishop (1983) 48 A.L.R. 461 and also to the decisions of Northrop J. in Repatriation Commission v. Evans (21 December 1983. unreported) and of Toohey J. in Repatriation Commission v. Compton (20th February 1984, unreported). Recently in O'Brien v. Repatriation Commission (11 April 1984, unreported)), a Full Court of this Court comprising Sweeney, Fitzgerald and Keely JJ. has dealt with the question of the standard of proof. Keely and Fitzgerald JJ. reviewed the above decisions and also Law's case, Lennell's case and another decision of the Full Court of this Court, Repatriation Commission v. Byrne (1981) 40 A.L.R. 296. The learned Judges concluded that Toohey J.'s view expressed in Bishop's case (at p. 468) was erroneous and ought not to be followed. Counsel for the Commission has submitted that the judgment in O'Brien's case is in this respect itself wrong and that I ought not to follow it. He has submitted that I am able to take that course because what the Judges said about Bishop's case was obiter.

During the argument I was informed that application was being made to the High Court by the Commission for special leave to appeal against the decision in O'Brien's case. That leave was granted on 8 June 1984 after I had reserved my decision. However, I see no point in delaying this judgment until the outcome of the appeal to the High Court. I think it is better if I deal with the matter as the law at present stands and let the appellate process take its course if it is invoked.

I am satisfied that I should follow the opinions of Keely and Fitzgerald JJ. in O'Brien s case. There may be something to be said for the view that their decision on the matter in question is obiter but, if for no other reason than judical comity, I should follow a considered decision of a Full Court so recently given.

This whole area is a vexed one because of the form of the legislation. In order to help the Tribunal, the Commission and the Repatriation Boards, and also parties making application for pensions, judges have endeavoured to assist the understanding of the onus and standard of proof provisions in sub-secs. 47(2) and 107VH(2) of the Act by endeavouring to explain their meaning and significance. On the basis of some of the decisions of tribunals which I have seen I do not think that their attempts have been particularly successful. The present case is another instance of this as was an earlier matter I had to consider, Bugg's case (supra). Unfortunately, what judges have said has led to glosses on the two provisions which ought not to be made. The essential task is to apply the words of the sections. I repeat my own attempt in Bugg's case to make this clear. I there said (pp. 22 - 23):-

"What a tribunal in a case such as this must do is to take into account the entirety of the evidence and material which is before it. After weighing up this material it should ask the question, "Am I satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim?" The matter which needs emphasising is that just because a doctor does not know the cause of a disease he is not prevented from expressing the opinion, as both Dr. Cutner and Dr. Stockler have done here, that the cancer was unrelated to war service. It may well be that in many cases, perhaps in this case itself, a tribunal will, after considering all the material before it, find the onus of proof not discharged. And certainly the fact that the cause is unknown is a relevant factor for it to take into account. But for the reasons given in Lennell's case it will rarely be conclusive. I stress that medical opinions that a disease is not war related may nevertheless be relevant and significant notwithstanding that the doctor is unable to assign a cause for the disease."

Nothing in O'Brien's case leads me to think that what I there said is in conflict with the views of the Court there. Upon that approach, the question in this case is whether the Tribunal has misdirected itself as to the onus and standard of proof.

I have earlier set out the principal paragraphs of the Tribunal's decision. So far as I can judge its essential reasoning is to be found in the first of the paragraphs quoted on p. 16. The Tribunal is there critical of Dr. Sevier, firstly because he did not answer the questions asked him and, secondly, because in some way Dr. Sevier's opinions did not "satisfy the proper test under Law." A comparison is drawn between Dr. Sevier's approach and that of Dr. Warner which was apparently also regarded as defective. The reason why the Tribunal made these criticisms was because the doctors had not considered the matter, at least in its view, in accordance with the decision of the High Court in Law's case.

In my respectful opinion the Tribunal fell into error itself in approaching the matter in this way. What it has done is to thrust upon the doctors who made the various medical reports the task of deciding the matter. In its opinion the doctors themselves were in some way bound, when reporting, to couch their language in terms of the language of a person charged with the duty of deciding whether he was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The formulation of the onus and standard of proof and any explanation thereof to be found in the various authorities, are not matters for doctors. They are matters for the Tribunal which has to ask itself whether, upon the whole of the material before it, it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. What it should do is to take into account the entirety of the medical and other evidence as it finds it. The fact that Dr. Sevier may not have answered questions asked him may be relevant but it does not mean that what he has said in his report is not material important to be taken into account. What the Tribunal should have done was to put aside its attempted glosses on Law's case and the other cases to which it refers in its decision and concentrate on the evidence. When it had weighed the evidence up it should then have reached a conclusion on whether it was satisfied or not that there were insufficient grounds for granting the claim.

In my opinion the Tribunal here has paid too much attention to what it has conceived to be the law and too little attention to the facts of the case. It is a fact finding tribunal and it ought not to concern itself with attempting to analyse a variety of authorities, each of which was only intended to emphasise to it that it must in each case direct its mind to the question of whether it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. I think the problem some members of the Tribunal have is that they cannot resist the temptation to become involved in a discussion of the law. This leads them, not only to gloss the statute, but also to gloss the decision of both the High Court and this Court which are binding on it.

What is lacking in this case is any real analysis of the factual material. This indeed is the basis for a further submission made by counsel for the appellant, namely, that the Tribunal has not given reasons for its decision as it is required to do by para. 107VK(1)(b) of the Act. That is something with which I shall deal in a moment. I mention it now only to bring out the absence from the decision of any real attempt to analyse the facts of the matter. Really, the decision begins with a criticism of the Board's decision and continues with criticisms, firstly of the conduct of the presiding member of the earlier Tribunal, and then of doctors for not following out what was required by Law's case. Little else is to be found in the decision.

It is true that there is reference in it to the absence of evidence as to the cause of the hypertension which precipitated Mr. Dunlop's death. I agree that that is a matter which is relevant to be taken into account. But I emphasise, as was done in Lennell's case and in a number of later cases, including Bugg's case, that just because a cause of death cannot be assigned, it does not follow that a tribunal may not, in a particular case, be satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. This seems to be a concept which tribunals are having difficulty grasping. What can be done to emphasis or explain the position to them more than has been done in the various judgments I do not know.

I really would respectfully urge members of the Tribunal to go back to the words of the Act which are central to the problem and do their best to apply them without the glosses which they believe they find in the various authorities. Importantly, they should consider and analyse the facts of each case in detail. It is only when that exercise has been carefully performed that they will preceive their task. In some cases such an analysis of the facts will make it clear that no resort to the onus and standard of proof provisions of the Act is necessary. The evidence will be clear that an applicant is entitled to a pension. These cases do not usually give rise to difficulty. It is where there are uncertainties or gaps in the evidence that problems arise.

Essentially a tribunal's task in such a case is to determine whether or not it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. That in turn involves it in identifying and specifying in its reasons any matters which to it constitute doubts which are reasonable. If it has no such doubt, its decision will be for the Commission. If it has, it will be for the applicant. But I emphasise that it is the identification and specification of its doubts, if any, in its reasons which will enable it to decide matters according to law. That identification and specification will not usually be possible unless an adequate review of the facts of each case is undertaken. If tribunals do not approach their task in this way, but, instead, do what has been done by the Tribunal in this case, they will always remain on the periphery of the case and be in grave danger of not coming to grips with what is involved.

The fundamental error of law which, in my opinion, is revealed by the Tribunal's decision in this case is that it has cast upon the medical witnesses the task of deciding the matter. Because they did not couch their language in accordance with its perception of what had been decided in Law's case, it concluded tht their evidence was, if not irrelevant, then unhelpful. That approach denied it the ability to perform its tasks as it should have. It did not turn its mind to the question of whether or not it was satisfied beyond reasonable doubt, upon the whole of the material before it, that there were insufficient grounds for granting the claim; rather, it concluded that the doctors were either not so satisfied or were directing themselves to the wrong question. For the Tribunal that was the end of the matter. Yet in truth, it had not itself addressed the question which the Act required it to consider. In consequence it did not discharge the function which the legislature entrusted to it.

That makes it unnecessary for me to deal with the further submission that the Tribunal has not given reasons for its decision pursuant to the obligation it has in that regard under para. 107VK(1)(b). But I think this submission should be rejected. I think the Tribunal's reasoning process was exposed by what it said. It was that exposure that enabled me to conclude that it had committed the error of law which I have found in its decision.

It remains to say that in the circumstances it is unnecessary to deal with a further submission made by counsel for the Commission based on the Tribunal's reference to Kupfer's case (supra). In short, the submission was based on what was said to be the Commission's reliance upon a decision on similar facts providing guidance as to what it should do in this case. In other words, so it was submitted, the Tribunal had felt itself bound by Kupfer's case, not because of the legal principle for which it is authority, but because that was a case where the veteran was also suffering from essential hypertension. I express no view on the submission.

In the circumstances the decision of the Tribunal is set aside. The case is remitted to the Tribunal to be heard and decided again. I express no view as to whether the Tribunal should itself seek further evidence or offer the Commission or the respondent the opportunity of leading further evidence. That is a matter for the Tribunal hearing the case to decide upon.