Repatriation Commission v Hunter, J. I
[1995] FCA 908
•12 OCTOBER 1995
CATCHWORDS
VETERANS' ENTITLEMENTS - war widow's pension - whether veteran's death from bowel cancer attributable to war service - whether reasonable hypothesis raised - connection between war caused diabetes and misdiagnosis of cancer - whether facts supporting hypothesis disproved beyond a reasonable doubt
CAUSATION - connection between death and war service - effect of negligent medical treatment - war-caused disability not the direct cause of death - indirect cause
Veterans' Entitlements Act 1986 Cth ss 8(1)(b), 120(1), (3)
Repatriation Commission v Law [1981] 147 CLR 635
Mahoney v J Kruschich (Demolitions) Pty Ltd [1985] 156 CLR 522
March v E. & M.H. Stramare Pty Ltd [1991] 171 CLR 506
Bushell v Repatriation Commission [1992] 175 CLR 408
Byrnes v Repatriation Commission [1993] 177 CLR 564
Lowerson v Repatriation Commission [1994] 50 FCR 252
Re Bardwell v Repatriation Commission [1993] 29 ALD 901
REPATRIATION COMMISSION v JOYCE ISOBEL HUNTER
VG 547 of 1993
EINFELD J
MELBOURNE
12 OCTOBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 547 of 1993
GENERAL DIVISION )
ON APPEAL FROM THE VETERANS' APPEAL DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL
Between: REPATRIATION COMMISSION
Applicant
And: JOYCE ISOBEL HUNTER
Respondent
MINUTE OF ORDERS
The appeal is dismissed.
The decision of the Tribunal is affirmed.
The applicant is to pay the costs of the respondent.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
EINFELD J
MELBOURNE
12 OCTOBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 547 of 1993
GENERAL DIVISION )
ON APPEAL FROM THE VETERANS' APPEAL DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL
Between: REPATRIATION COMMISSION
Applicant
And: JOYCE ISOBEL HUNTER
Respondent
REASONS FOR JUDGMENT
EINFELD J MELBOURNE 12 OCTOBER 1995
INTRODUCTION
This appeal by the Repatriation Commission challenges a decision of the Administrative Appeals Tribunal (the Tribunal) given on 1 December 1993 to set aside a decision of the Veterans' Review Board on 4 June 1992. The Board had affirmed the decision of the Commission to reject a claim for a war widow's pension by Joyce Isobel Hunter, whose late husband Donald William Hunter served in the Royal Australian Navy between 1945 and 1947 and died of bowel cancer in 1991 aged 64.
In order to be successful in her claim, it is required by the Veterans' Entitlements Act 1986 (the Act) that the veteran's death be war caused. For this purpose section 120 of the Act requires the establishment of a reasonable hypothesis of nexus between the death and the condition which caused it on the one hand, and the veteran's war service on the other. If so, the pension will be payable unless the factual basis of the hypothesis is disproved beyond reasonable doubt.
THE MEDICAL HISTORY
It was established before the Tribunal that Mr Hunter was diagnosed in 1977 with diabetes mellitus which was accepted as war caused in 1989 retrospective to 1983. This condition was controlled with oral hypoglycaemic agents and remained stable for approximately 13 years. However, in the first half of 1990 the condition deteriorated markedly so that Mr Hunter was no longer able to be stabilised with the tablets. In April 1990 Mr Hunter had a severe feverish illness associated with rib pain and vomiting which was diagnosed as viral. Remaining unwell in May/June 1990 Mr Hunter went to his family doctor who concentrated on stabilising the diabetes that had now flared out of control. This treatment was to no avail and Mr Hunter was referred to the endocrine and diabetic clinic at the Repatriation Hospital in Heidelberg where he was treated as an outpatient for problems related to his diabetes. Despite the treatment received at the Hospital, Mr Hunter suffered weight loss, tiredness, a cough, elevated blood sugar and ketones in the urine. These developments indicated to the treating practitioners an exacerbation of the diabetes. Mr Hunter also complained of pain in his lower ribs and found it hard to sit out of bed. He
continued in the care of his general practitioner for some of these conditions and for hypertension.
In May 1991 Mr Hunter was again admitted to the Repatriation Hospital for investigation of dyspnoea, pain in his left lower ribs, distension of the left upper quadrant of the abdomen and melena (black tarry offensive smelling stools). Additionally, he suffered from burping with a foul smelling wind, loss of appetite, night sweats and shortness of breath. He was diagnosed with an extensive inoperable carcinoma and given five months to live. It was considered that the carcinoma must have been present for many months, possibly years.
THE HYPOTHESIS
It was not submitted that the veteran's diabetes had of itself caused the cancer. Before the Tribunal Mrs Hunter submitted that the hypothesis was (AB 135):
..... that the late veteran had eligible war service. The diabetes was found to have arisen out of or been attributable to his war service and as a consequence of that a further condition, that being the cancer, was not diagnosed and it is the diabetes that caused the inability to diagnose.
In formal terms, the widow's submissions were noted by the Tribunal as (AB 197):
The symptoms of diabetes mellitus masked the symptoms of metastatic colonic cancer, in that the symptoms were similar, and as a result the veteran's treating medical practitioners were not able to detect the cancer until shortly prior to the veteran's death, but had they been able to, they would either have cured the veteran, or at least treated him so that his life expectancy would have been extended beyond the date of his death.
The veteran's diabetes mellitus either arose out of or was attributable to his war service and as a direct consequence of the masking of the cancer by the symptoms of the diabetes mellitus, the failure to diagnose the cancer and to be able to treat it effectively at an early stage arose out of, or was attributable to, the diabetes mellitus and the veteran's eligible war service.
The Tribunal articulated the hypothesis as (AB 202):
At its highest the hypothesis is that as a consequence of the war caused disability of diabetes, there was a failure to diagnose the cancer earlier because of the presence of the diabetes. The failure to diagnose and appropriately treat the cancer from which the veteran died, hastened his death, therefore his death is properly attributed to war service.
The Tribunal accepted this hypothesis (AB 205):
We accept that the early clinical features of the cancer were misinterpreted as being due to the diabetes ... there is little doubt from the medical evidence that the cancer would have been much less extensive. Thus seen, the lack of timely treatment which hastened the veteran's death is attributable to his diabetes.
There is no dispute on the essential facts upon which the hypothesis is raised. On one view, namely that of Dr Zalcberg, the hypothesis is too remote, but the issue is not one of deciding between competing expert medical opinion. While the hypothesis raised is indirect it is not, in out view, too remote or too tenuous.
On this appeal this hypothesis was summarised as that:
..... the presence of the diabetic condition has, via one mechanism or another, prevented diagnosis of the cancer at a point in time some 11 months earlier than it was in fact diagnosed.
Thus the proposition was that the veteran's diabetes had led the doctors to miss or mistake symptoms of the cancer, and that it was the failure of timely treatment due to the existence of the diabetes, an accepted war caused disability, that led to his death. There seems to be no contention between the parties that had the cancer been diagnosed 11 months earlier, the veteran may have been cured or his life expectancy greatly increased.
REASONABLENESS OF THE HYPOTHESIS
The Commission challenged the finding of a reasonable hypothesis which it argued was tainted by error of law. It submitted that the Tribunal incorrectly appraised the hypothesis in light of section 120 of the Act. This section is well known and does not need repetition here. The relationship between subsections (3) and (1) is also now well understood and it is not necessary to enunciate it again: see Bushell v Repatriation Commission [1992] 175 CLR 408; Byrnes v Repatriation Commission [1993] 177 CLR 564; Lowerson v Repatriation Commission [1994] 50 FCR 252.
The Commission took particular issue with the concept of "masking" and it is perhaps unfortunate that the word was used. It was a concept advanced by Mr Hunter's general practitioner Dr F.J. McCoy and supported by Sir Edward Dunlop who in a letter dated 4 September 1992 to the Department of Veterans' Affairs noted that he had respect for the credibility of Dr McCoy's submission that the diabetes masked the cancer and thus delayed diagnosis. The opinion of Professor Richard Clayton Bennett, Emeritus Professor of Surgery at Melbourne University, was that the diabetes would not have masked the symptoms of the cancer, in the sense that the cancer symptoms would have manifested notwithstanding the diabetes and would have been capable of being seen as symptoms of cancer, but the presence of the diabetes diverted the doctors' focus. Professor Bennett considered that it was a very reasonable hypothesis that the diagnosis and treatment of the colonic cancer was significantly delayed and impeded by the presence of diabetes. On behalf of the widow it was argued that there was no particular significance in the word "masked" because the essence of the hypothesis was that the presence of the diabetes led to a failure or inability to diagnose the cancer.
The transcript reveals that the Tribunal was perhaps swayed in choosing the words 'masked' and 'masking' by the decision of another Tribunal in Bardwell v Repatriation Commission [1993] 29 ALD 901 where the hypothesis was led that:
..... B's accepted disability of peripheral vascular disease masked and/or interfered with the diagnosis of his malignancy and consequently its effective treatment.
It was held at 902 that:
..... the presence of the peripheral vascular disease did complicate and delay the process of diagnosis of the tumour. An earlier diagnosis might have allowed a cure and probably would have prolonged B's life. Therefore, B's death was attributable to his service within the terms of para 8 (1)(b) of the Veterans' Entitlements Act 1986 (Cth).
RAISED FACTS
To determine whether or not an error of law has been made it is necessary to have regard to the facts raised before the Tribunal as supporting or pointing to the hypothesis. The raised facts included:
The veteran had war caused diabetes mellitus which was treated for many years with oral medication.
In early 1990, he contracted a fever which was diagnosed as a viral infection. A month later he was considered to be still suffering from the virus and his symptoms had escalated. The doctors continued to treat him for diabetes.
Mr Hunter's symptoms at this time included weight loss, tiredness, elevated blood sugar, ketones in the urine, shortness of breath and predisposition to infection. The extent of weight loss was unusual in a man of Mr Hunter's medical history, but in general these problems were considered by his family doctor and the Repatriation doctors to have originated from his diabetes.
A weakness in the veteran's left leg was attributed to nerve damage aggravated by a predisposition due to his diabetic state. Diabetes can cause vascular and/or neurogenic problems.
A mass detected in the right upper quadrant of Mr Hunter's abdomen was diagnosed as a congenital abnormality.
Continuing weight loss, a febrile episode (fever), and the other conditions from which Mr Hunter progressively suffered including flatulence, coughing, pain in the abdomen and left lower ribs, are not symptoms of diabetes.
Yet the doctors could not provide a reason other than diabetes for the sudden deterioration of Mr Hunter's health. Late onset diabetes being controlled by oral medication should not have got out of control without a good reason and no medical explanation was found until the diagnosis of cancer.
The cancer was not diagnosed until May 1991. The cancer was likely to have been present for many months if not years before it was diagnosed.
The early clinical features of colonic cancer may have aggravated the diabetic state. It is more than likely that the cancer destabilised the diabetes.
In oral evidence Professor Bennett asserted that because Mr Hunter had late onset orally treatable diabetes, any significant continuing destabilisation of his condition should have alerted the physician to look for a cause other than the diabetes itself. In his view this type of diabetes does not flare out of control without a good reason and that reason should have been investigated. The Professor said that had Mr Hunter been his patient, and had he learned that Mr Hunter was suffering from sore ribs, abdominal discomfort, and a non-specific febrile episode, he would have looked elsewhere than diabetes for the cause. He agreed that the diabetes was made worse by the cancer and that this fact would have confused the picture and deflected the doctors from identifying the cancer. He said that if the cancer had been diagnosed in early 1990 Mr Hunter may have undergone treatment that could have saved or prolonged his life. Although Mr Hunter did not complain of two of the most common symptoms of the type of cancer he was suffering from, viz. blood in the stools and obstruction, Professor Bennett explained that the veteran exhibited other symptoms that could have led to a correct diagnosis.
Dr John Zalcberg, a consultant medical oncologist, reported that it was unclear to him how the diabetes would have masked the symptoms of the cancer. He did note that a range of symptoms were common to both conditions such as asthenia, malaise and anorexia. However, in his view, given that most cancer sufferers also present with an alteration of bowel habit and bleeding, it
is unlikely that if those symptoms had been described to his physician, diabetes would have been blamed.
There can be no controversy over the fact that Mr Hunter was misdiagnosed, and that the diabetes was a significant factor in distracting the medical advisers from diagnosing the cancer earlier. As the Tribunal said (AB 205):
There is no dispute on the essential facts upon which the hypothesis is raised.
Nonetheless the Commission submitted that Professor Bennett's evidence operated to make the hypothesis unreasonable; that because the cancer had its own symptoms and that a cause should have been looked for to explain the unusual flaring up of the veteran's diabetes, the veteran's death was not attributable to the diabetes but rather to unreasonable error by the physicians. These submissions do not challenge the reasonableness of the proposed hypothesis for it is not the function of section 120(3) to choose between two competing hypotheses, nor is it concerned with proof of the suggested hypothesis. It is concerned with what might have happened, not what should have happened.
No clearer support for a hypothesis can exist than if it be shown to have actually occurred. The symptoms Mr Hunter presented were incorrectly attributed to diabetes because the focus of the physicians' attentions, including of the Repatriation doctors, was directed to the diabetes and not further afield. The raised facts more than adequately support the hypothesis that because of
the diabetes the cancer was not diagnosed in a timely fashion and as a consequence Mr Hunter's life was appreciably shortened. In my opinion no error of law has been shown in the Tribunal's finding that the hypothesis is reasonable and that is it is supported by the raised facts.
APPLICATION OF SECTION 120(1)
Having decided that the hypothesis was reasonable, the Tribunal then posed what it termed the `ultimate question'. It was clearly referring to the criteria required by section 120(1) of the Act. The Commission contended that use of the term manifested an error of law in that section 120 demands the answering of many questions, not one overriding question. This statement is no doubt correct but it is a rather shallow submission which does not lead to any finding that the Tribunal's decision was tainted. The law was succinctly stated in Byrnes at 570:
Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond a reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or facts relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis.
In Bushell it was said at 416:
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.
Having decided that the hypothesis was manifestly reasonable, the Tribunal followed the direction of the High Court and turned its mind to whether or not it was proved beyond a reasonable doubt that the connection of the type outlined in the hypothesis was not true. In my opinion the process adopted was correct. It is true that, depending on the facts, section 120 may require the Commission to answer several questions. However, in this case the questions associated with the suggested hypothesis such as `is the hypothesis reasonable?' or `is the hypothesis supported by the facts?' are resoundingly answered in the affirmative. Therefore the Tribunal correctly phrased the question raised by section 120(1) in terms of its 'ultimate' task.
Disproof of the factual basis of the hypothesis
Once the hypothesis has been accepted as reasonable, the claim will succeed unless a fact supporting the hypothesis is proven to be untrue, or a fact inconsistent with the hypothesis is proven to be true: Byrnes at 571. The Commission submitted that because diabetes and cancer are not similar, the misdiagnosis was attributable to medical error, that it was not reasonable for the diabetes to mislead the physicians, and therefore that the diabetes was not the cause of the misdiagnosis. In reality, the
Commission was thus actually promoting an alternate hypothesis, viz. that the veteran died as a result of misdiagnosis due to medical negligence, not diabetes. Reliance was placed for that hypothesis upon Professor Bennett's comments that a separate cause for the flaring up of the diabetes should have been investigated. Moreover, the Commission argued that Professor Bennett's uncontroverted evidence contradicted Mrs Hunter's hypothesis, and that his evidence should have led the Tribunal to find that the hypothesis was disproved beyond a reasonable doubt. I profoundly disagree with all this argumentation. It is the stranger for the fact that at least part of the negligence referred to was that of the Commssion's own doctors.
Even if the Commission's assertions are true and its suggested alternative hypothesis is accepted as inconsistent with the widow's hypothesis, the Commission's contentions do not even approach a level of disproof of the widow's hypothesis and its supporting facts beyond a reasonable doubt. Professor Bennett agreed that the early clinical pathology of the cancer could have aggravated the diabetes. At least some of Mr Hunter's symptoms were associated with diabetes and significantly the doctors, including the doctors at the Repatriation Hospital, treated him for diabetes when he almost certainly had cancer and when it was this disease that was causing his symptoms and signs.
The Commission nonetheless submitted that Professor Bennett's evidence that late onset diabetes does not flare up without a reason is also a fact inconsistent with the hypothesis. The reasoning was that if no reasonable doctor would have attributed the escalation of the veteran's medical problems to the diabetes alone, then the diabetes cannot have been the reason the cancer was missed. Once again this contention, if established at all, has not been proved beyond a reasonable doubt. Professor Bennett's evidence on the point included:
At AB 107:
Now, it seems to me that a man of that age who had non insulin dependent late onset diabetes should not have got out of control in the way that was suggested without a good reason, and I don't believe a reason was found.
At AB 108:
..... it was initially attributed to his diabetic state, as was his increasing weight loss and, as possibly was his fever, and certainly was his hypoglycaemia and his ketones in his urine, but none of which I believe were explained in a man who had for some years had late onset diabetes being adequately controlled with oral hypoglycaemic agents.
At AB 127:
They didn't explain why his diabetes has got worse, why it didn't really improve, why his weight continued to drop. And it didn't explain his other symptoms which he did have. Some abdominal discomfort, it went on to gastric-gastro and intestinal disturbance and pain around the ribs and those sorts of things.
Professor Bennett also highlighted that some questions remained unanswered.
No doubt medical error played a role in the veteran's death, but Professor Bennett's evidence does not prove Mrs Hunter's hypothesis untrue beyond a reasonable doubt. The tests of section 120 do not include whether there is an equally or additionally plausible alternative hypothesis, even assuming that what Professor Bennett said could be so categorised. The issue is whether the hypothesis submitted is reasonable and if so, whether it is disproved beyond a reasonable doubt. This hypothesis clearly passed both of these tests.
CAUSATION
Section 8(1)(b) relevantly provides:
8(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a).....
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran .....
The Commission did not challenge that the hypothesis articulated for Mrs Hunter satisfies the relevant causal connection test, but it maintained that the hypothesis should not have been accepted as reasonable and that the highest any reasonable hypothesis could be put on the basis of Professor Bennett's evidence is that the death of the veteran was due to misdiagnosis not due to the diabetes. Counsel for the Commission then argued:
Such a misinterpretation is the real contributing cause. It is identified in the hypothesis as the contributing cause. It is not war service but the misinterpretation and so there was no basis, we would say, on which the late Mr Hunter's death could be attributed to circumstances of his service within s 8(1)(b). However, if I might, before concluding, go back a moment. Our primary attack here is on what we say were failures on the part of the tribunal to undertake the task of evaluating the hypothesis in the light of all the material before it, material which we say clearly undermined the reasoning which supported the hypothesis and a failure on the part of the tribunal to address the question as to whether the material before it disproved a fact essential to the hypothesis beyond a reasonable doubt.
In this as in all such cases there is of course a need to establish a relevant causal connection. The diabetes was not the cause of the cancer, so that if the presence of the diabetes had not contributed in some way to the misdiagnosis, there would be nothing to link the war service to the veteran's death. To come within section 8(1)(b), the death must have arisen from the diabetes as an accepted war caused condition.
As was noted by the Tribunal, the decision of Repatriation Commission v Law [1981] 147 CLR at 635 confirmed that the consequential relationship between death and operational service is not so strict as to require the connection to be the sole or predominant cause, as long as there is a causal nexus of some real degree. If on the other hand this misdiagnosis had nothing whatever to do with the diabetes, the requisite connection could not have been made out. If, for instance, the veteran's diabetes had not destabilised, but instead he had suffered head injuries in an accidental fall and the doctors had negligently failed to diagnose the cancer because they had been misled by symptoms of the head injuries, it could not be said that the death was war caused. In effect the Commission's argument sought to make out this type of case, substituting medical negligence for the fall and the head injuries in arguing that Professor Bennett's evidence proved that the misdiagnosis had nothing at all to do with the diabetes.
Before the Tribunal it was submitted for the widow that it was irrelevant for the purposes of this case whether the failure to diagnose the cancer was due to negligence rather than reasonable error on the part of the physicians. In my view, this position understates the requirement of a causal connection postulated by section 8(1)(b). There is a limit to what can genuinely or with commonsense be said to be "caused by" or "attributed to" or to have "arisen out of" war service because at some point the chain of causation will be broken by subsequent acts or circumstances. In Mahoney v J Kruschich (Demolitions) Pty Ltd [1985] 156 CLR 522, the High Court said at 530:
Some degree of medical negligence in the treatment of an injury may well be a reasonably foreseeable result of the act or omission by which that injury was inflicted, and then no clear line can be drawn to limit the original tortfeasor's liability to exclude the consequences of medical negligence.
However, in the ordinary case where efficient medical services are available to an injured plaintiff, the original injury does not carry the risk of medical treatment or advice that is "inexcusably bad"(Martin v Isbard (1946) 48 WALR 52 at 56), or "completely outside the bounds of what any reputable medical practitioner might prescribe" (Lawrie v Meggitt (1974) 11 SASR at p 8) or "so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury" (South Australian Stevedoring Co Ltd v Holbertson [1939] SASR 257 at
264) or "extravagant from the point of view of medical practice or hospital routine: Hart and Honore, Causation in the Law (1959), p 169. In such a case it is proper to regard the exacerbation of the plaintiff's condition as resulting solely from the grossly negligent medical treatment or advice, and the fact that the plaintiff acted reasonably in seeking and accepting the treatment or in following the advice will not make the original tortfeasor liable for that exacerbation.
For example, the facts before the Court in March v E. & M.H. Stramare Pty Ltd [1991] 171 CLR 506 did not establish a break in the chain of causation, either by a novus actus interveniens, or because the risk of injury was not foreseeable. Similarly the facts of this case do not suggest that the misdiagnosis was so grossly negligent as to break the chain of causation. It would in any event have left the Commission with the somewhat difficult argument that negligence by its own doctors entitled it to avoid the pensionability of their victim's widow.
I agree with the Tribunal that the untimely death of the veteran was caused by misdiagnosis due to the accepted disability of diabetes and that for the purposes of the Act the death was therefore war caused. The Tribunal's decision is affirmed and the appeal dismissed with costs.
Counsel for the applicant Mr P.J. Hanks instructed by the Australian Government Solicitor
Counsel for the respondent Mr T. Keely instructed by John W. Ball & Sons
Date of hearing 26 April 1995
Date of judgment 12 October 1995
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