Repatriation Commission v Law

[1980] FCA 112

Re: REPATRIATION COMMISSION
And: NANCY LAW (1980) 47 FLR 57
No. W.A. G20 of 1980
War Widows Pension - Superannuation and Pensions

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Brennan(1) and Lockhart(1) JJ.

CATCHWORDS

War Widows Pension - Member of the Forces - Death of member caused by carcinoma due to smoking - Smoking commenced during war service - Connection between death and occurrence during war service - Meaning of "occurrence" - Connection between death and war service - Standard of proof under Repatriation Act 1920. Repatriation Act 1920 (Cth.) ss.23, 24, 27, 47, 101, 107VG, 107VH, 107VZZH.

Superannuation and Pensions - War widows pension - Death of former member of Armed Forces from carcinoma - Smoking commenced during war service - Whether death resulted from any "occurrence" during war service - Whether smoking, or habit of smoking an "occurrence" - Whether death has "arisen out of or is attributable to" war service - Standard of proof - Repatriation Act 1920 (Cth), ss. 23, 24, 27, 47, 101, 107DG, 107VH, 107VZZH.

HEADNOTE

On 15th September, 1976, James Law ("the deceased") died of carcinoma of the lung with myocardial infarction as a contributing cause. The respondent (his widow) applied for a pension under s. 101 of the Repatriation Act 1920 ("the Act") claiming that smoking attributable to war service had caused the carcinoma which led to his death. From June 1940 the deceased had been a member of the Armed Forces; in 1942 he became a prisoner of war of the Japanese; after release in August 1945 he was discharged from service in 1946. At that time he was in a wretched physical condition and he remained in poor health for the rest of his life. Prior to enlisting the deceased had not smoked: by the time of his repatriation to Australia he had begun to smoke heavily. Until a heart attack in 1973 he smoked twenty cigarettes a day; thereafter his smoking was reduced.

The Repatriation Review Tribunal upheld the decision of the Repatriation Commission refusing a pension and decided against the respondent's claim. On appeal to the Federal Court, Toohey J. held that the respondent was entitled to a pension.

On appeal to the Full Court,

Held, dismissing the appeal: (1) Where the death of a former member of the Armed Forces might have arisen out of war service or might be attributable to such service, a pension cannot be refused unless it is proved beyond reasonable doubt that the death was not so related to the war service.

Section 107VH (2) of the Act considered.
(2) In order to be satisfied beyond reasonable doubt that there are insufficient grounds for granting a claim or application the Repatriation Review Tribunal must apply the requisite standard of proof to each stage of its factual inquiry. Thus where, for example, a medical opinion is submitted to a Tribunal in an application for a pension or on an appeal from a refusal to grant the same, before rejecting such an opinion which is a link in a chain of proof of entitlement the tribunal or appeal body has to be satisfied beyond a reasonable doubt that such an opinion is wrong.
(3) Nothing in s. 101 and in particular s. 101 (1A) requires that a disease which causes death or incapacity must be contracted during war service if the resulting death or incapacity is to attract a pension.

Meaning of "occurrence", "has arisen out of" and "is attributable to" considered.

HEARING

1980, May 8-9; August 14. #DATE 14:8:1980

APPEAL.

Appeal to the Full Court of the Federal Court and cross appeal from a decision of Toohey J. pursuant to s. 107VZZH of the Repatriation Act 1920 reversing a decision of the Repatriation Review Tribunal itself upholding a decision of the Repatriation Commission refusing the respondent's application for a pension pursuant to s. 101 of the Act.

M. H. Byers Q.C. (Solicitor-General) and G. Miller, for the appellant.

D. K. Malcolm and J. G. Mengler, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Muir Williams Nicholson & Co.

D. LEVIN

ORDER

1. The appeal be dismissed.

2. The appellant pay to the respondent her costs of the appeal.

Appeal dismissed.

JUDGE1

This is an appeal from a judgment of Toohey J. who allowed an appeal by the present respondent against the refusal of the Repatriation Review Tribunal to order the payment to her of a pension pursuant to s.101 of the Repatriation Act 1920 ("the Act"). This appeal raises for the first time before this Full Court the interpretation of amendments to the Act made by the Repatriation Acts Amendment Acts of 1977 and 1979.

Mr. James Law enlisted in the Australian Military Forces in World War II in June 1940. He served first in the Middle East and later in Java, where he became a prisoner-of-war of the Japanese in March 1942. He was recovered from the Japanese in Thailand in August 1945 and in March 1946 he was discharged. Some thirty years later, on 15 September 1976, he died. He was then aged sixty-seven. According to his death certificate, the cause of death was carcinoma of the lung (nine months) with myocardial infarction (three years) as a contributory cause. The respondent is his widow.

During the period he was a prisoner-of-war he underwent severe hardship and he suffered from enteritis, bacterial dysentery, malaria, otitis externa, beri beri and hookworm. When he was discharged from service he was in a wretched physical condition. He remained in poor health for the rest of his life.

Between the time of his discharge and October 1971 the following were at various times accepted for purposes of the Act as due to war service, namely, fibrositis of the back, dysentery, worm infestation, sigmoid diverticulitis with colectomy, perceptive deafness right, bilateral nerve deafness and tinnitus and sarcoidosis of liver and spleen. But none of these disease was a direct cause of his death.

When he joined the Army, Mr. Law had not smoked cigarettes. He had begun to smoke heavily by the time he was repatriated to Australia from a prisoner-of-war camp. After his discharge he smoked twenty cigarettes a day until 1973 when he had a heart attack after which he reduced his smoking. Claiming that smoking was attributable to war service and that smoking caused Mr. Law's carcinoma, the respondent lodged her claim for a pension on 15 October 1976.

The relevant liability of the Commonwealth to pay pensions is imposed by s.101 of the Act which provides:
"101. (1) Upon the incapacity or death -

(a) of any member of the Forces who was employed on active service, whose incapacity or death has resulted from any occurrence that happened during the period from the date of his enlistment to the date of the termination of his service in respect of that enlistment; or

(b) of any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service,

the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division 1:

Provided that -

(a) the incapacity or death of the member -

(i) is not due to the serious default or wilful act of the member;

(ii) does not arise from intentionally self-inflicted injuries; and

(iii) does not arise from, or from any occurrence that happened during the commission of, any serious breach of discipline by the member,

. . . . . . . .

(1A) For the purposes of paragraph (b) of sub-section (1) but without affecting the generality thereof, the incapacity or death of a member shall be deemed to have arisen out of his war service if it was the result of an accident that happened to him while travelling directly to or from his place of employment on war service or was, in the opinion of the Commission, due to an accident that occurred or to a disease or an infection that was contracted, and that would not have occurred or been contracted but for his being on war service or but for changes in his environment consequent upon his being on war service."

It is and has been common ground that Mr. Law was a "member of the Forces who was employed on active service" within the meaning of s.101(1).

Claims are made in accordance with s.24AA, the relevant parts of which are as follows:
"24AA (1) A claim for pension -

(a) shall be in accordance with an approved form; and

(b) shall be accompanied by such evidence available to the claimant as he considers may support the claim.

(2) Sub-section (1) shall not be taken as imposing any onus of proof on a claimant."
Where a claim is lodged with the Department of Veterans Affairs, the Secretary of the Department causes an investigation to be made into the matters to which the claim relates, and causes the claim to be submitted to a Repatriation Board for its consideration and determination (s.24AB).

The respondent's claim was rejected by the Repatriation Board on 11 January 1977 acting under the Act as it then stood upon the ground that his death was not related to war service (s.101). An appeal was lodged on 1 March 1977 to the Repatriation Commission which disallowed the appeal on 19 April 1977.

On 2 February 1978 an appeal to the War Pensions Entitlement Appeal Tribunal was lodged against the Commission's determination, with additional material not before the Board or Commission. That material consisted of a report dated 16 January 1978 from Sir Edward Dunlop, a consultant to the Peter McCallum Cancer Institute in Melbourne together with an extract of a report in "Cancer Forum" No.6 of 1976 and letters from four persons concerning Mr. Law's smoking. The Tribunal, having considered this new evidence, referred it to the Commission for reconsideration under s.64(4) of the Act.

On 1 October 1977 a new s.47, inserted by s.12 of Act No.56 of 1977, had come into force. Sub-section (2) of the new section was as follows:
"(2) The Commission, Board, Appeal Tribunal or Assessment Appeal Tribunal shall grant the claim or application or allow the appeal, as the case may be, unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal."
By s.12(2) of the amending Act the new s.47(2) applied to the hearing or consideration of claims or appeals thenceforth whether or not commenced before the amendment came into operation.

On 24 April 1978 the Commission, having considered the new evidence and also a medical report from Dr. Perkins, Senior Medical Officer (Appeals), adhered to its previous determination of 19 April 1977. It did not expressly refer to the new s.47(2).

A further submission dated 5 December 1978 was then made to the War Pensions Entitlement Appeal Tribunal accompanied by a letter from Mrs. Law dated 25 August 1978, a letter from the Minister for Veterans' Affairs to Air Vice-Marshal Townsend, a statutory declaration by Mrs. Law dated 6 December 1978, and a letter from Mrs. Law to the Department of Veterans' Affairs dated 26 September 1978. On 6 December 1978 the Tribunal decided that this evidence had a substantial bearing on the claim and directed that the claim be referred again to the Commission for reconsideration under s.64(4).

The Commission considered the further evidence mentioned above and also two further medical reports, one from Dr. Stockler, Acting Senior Medical Officer (Appeals) and another from Dr. Perkins, Senior Medical Officer (Appeals). The Commission gave its decision on 11 May 1979. It stated that it adhered to its previous determination in respect of death. No express reference was made to s.47(2).

The original determination of the Commission was dated 19 April 1977, when the terms of the Act were different. When it stated on 24 April 1978 and again on 11 May 1979 that it adhered to its previous decision, it used a formula of words which suggested it saw the issue for determination as being whether its previous determination was right or wrong and had come to the conclusion on each occasion that its previous determination was right. Its reasons for decision dated 9 May 1979 do not altogether dispel the impression that it did not apply the new s.47(2).

The Repatriation Acts Amendment Act 1979 (No.18 of 1979) (apart from some provisions - not material on this appeal - which came into force on 28 March 1979) came into operation on 1 July 1979. This amending Act (inter alia) inserted a new Part, Part IIIA, in the principal Act whereby the Repatriation Review Tribunal was established. Amongst the provisions in Part IIIA were the following:
" 107VC. (1) Where the Commission has made a decision refusing a claim by a person for a pension (other than a service pension) or other benefit under this Act arising out of the incapacity or death of a member of the Forces on the ground that -

(a) the member is not suffering from any incapacity;

(b) the incapacity or death of the member has not resulted from any occurrence that happened during the period of his war service, or from his employment in connection with naval or military preparations or operations, or did not arise out of or is not attributable to his war service, as the case may be; or

(c) the incapacity from which the member is suffering or from which he has died has not been contributed to in any material degree, or has not been aggravated, by the conditions of his war service,

that person may, on or after 1 July 1979, make application to the Tribunal for a review of the decision of the Commission."

" 107VG. The Tribunal, in conducting a proceeding, or the hearing of a proceeding, or in making a decision in a proceeding, on a review -

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) shall act according to substantial justice and the merits and all the circumstances of the case, and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to -

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or

(ii) an absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a member of the Forces was not reported to the appropriate authorities."

" 107VH. (1) In a proceeding on a review, the Tribunal shall have regard to the evidence that was before the Commission or a Board when the decision the subject of the review was made and to any further evidence before the Tribunal in the proceeding that was not before the Commission or the Board but would have been relevant to the making of a decision in the proceeding before the Commission or the Board.

(2) On the completion of its consideration in a proceeding on a review -

(a) where the decision the subject of the review was a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or

(b) in any other case - the Tribunal shall set aside the decision the subject of the review unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Tribunal would have made if it had conducted the proceeding in which the decision was made.
(3) Where the Tribunal sets aside a decision the subject of a review, it shall substitute for that decision such decision as the Tribunal considers to be in accordance with this Act.

(4) Where the Tribunal does not set aside a decision the subject of a review, it shall affirm that decision."
The amending Act also altered s.47 of the Principal Act to make it appropriate to the new hierarchy of appeals which was set up but did not alter the substance of that provision as it stood following the 1977 amendment.

On 10 September 1979 a written submission on behalf of Mrs. Law was made by way of appeal to the newly-established Repatriation Review Tribunal. This Tribunal had before it, in addition to the written submission, a letter from Dr. Heymanson, a Clinical Physiologist, a passage from the Official War History on "Medicine and Surgery in Captivity - Japanese Camps", and some oral submissions by Mrs. Law's representative.

On 10 September 1979 the Repatriation Review Tribunal gave its decision and its reasons. In its decision it stated:
"The issue to be determined is whether the Commission's decision was correct."
It then proceeded to say:
"After considering all the evidence, the Tribunal is satisfied beyond reasonable doubt, that there were insufficient grounds for granting the claim, and affirms the decision of the Repatriation Commission."

On the face of its decision the Repatriation Review Tribunal applied the test laid down by sub-s.107VH(2).

In its reasons the Repatriation Review Tribunal stated its findings as follows:
"(a) Mr. Law died from a carcinoma of the lung caused by his smoking habits.

(b) Mr. Law did not smoke before he joined the Army but by the time of his repatriation from P.O.W. camp he had begun to smoke.

(c) There is no evidence to indicate that Mr. Law started to smoke because of the conditions and demands of his particular war service or because of the conditions in general pertaining to prisoners of war.

(d) Mr. Law was not psychologically incapable of reducing his smoking in the post war period."
It then said:
" Accordingly, the Tribunal is satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim, and affirms the decision of the Repatriation Commission."

In making its findings, the Tribunal clearly preferred the medical evidence of Dr. Stockler and Dr. Perkins to the evidence of Sir Edward Dunlop. The Commission thus appears to have proceeded in the same way as a court or tribunal which has to decide a case on the balance of probabilities where the onus of proving the claim rests upon the claimant. The Repatriation Review Tribunal appears to have accepted this way of proceeding. But the terms in which the Act is couched do not empower the Commission or the Tribunal to reject an opinion which is a link in a chain of proof of entitlement merely because it prefers another opinion. They have to be satisfied beyond reasonable doubt that such an opinion is wrong before they can reject it. Neither the Commission nor the Tribunal approached the matter in that way. Had they approached the matter in that way, they would have had to determine whether Sir Edward Dunlop's report raised a rational possibility that the claim should be granted. The Tribunal in its findings says:
"There is no evidence to indicate that Mr. Law started to smoke because of the conditions and demands of his particular war service or because of the conditions in general pertaining to prisoners of war."

The Tribunal may well have arrived at the view that there was insufficient evidence to satisfy them of the fact in question on the civil standard of proof. But it does not follow that there was no evidence of the fact. There was no direct evidence; Mr. Law was dead. But there was a good deal of evidence of the surrounding circumstances which make it a real possibility that Mr. Law started to smoke becuase of the conditions which existed while he was a prisoner-of-war. The test prescribed by s.107VH(2) required the Tribunal to determine whether that possibility (assuming that those facts are a link in the chain of entitlement) was excluded beyond a reasonable doubt.

On 5 October 1979 Mrs. Law lodged a notice of appeal to the Federal Court from the decision of the Tribunal. Under s.107VZZH an applicant in a proceeding before the Tribunal may appeal to the Federal Court "on a question of law" from any decision of the Tribunal in that proceeding. Such an "appeal" is heard by a single Judge as a matter in the Court's original jurisdiction. An appeal lies to the Full Court of the Federal Court from a decision of a single Judge (Federal Court of Australia Act 1976, s.24(1)).

In her notice of appeal to the Federal Court, Mrs. Law specified three questions of law to be raised on the appeal. The matter came on for hearing before Toohey J. who held that each of the specified questions of law did arise and that the appeal was competent. We agree with these conclusions of the learned primary Judge and with his reasons. The notice of appeal to the Full Court against his Honour's judgment filed by the Repatriation Commission does not challenge these conclusions.

Turning to the issues in the case, his Honour pointed out that s.101 specifies two situations in which the death of a member of the forces will create a liability in the Commonwealth to pay a pension to his dependants. Broadly speaking, s.101(1)(a) requires that death should result from an occurrence during enlistment, while s.101(1)(b) requires that death should arise out of or be attributable to war service. His Honour came to the conclusion that Mrs. Law could not succeed under s.101(1)(a). He took the view that the formation of a smoking habit was not an "occurrence" in the relevant sense and, in any event, death resulted from the smoking itself not from the habit. However, he held Mrs. Law succeeded under s.101(1)(b). His Honour stressed that the Tribunal was obliged to grant the pension unless satisfied beyond reasonable doubt that there were insufficient grounds for doing so. He took the view that in the light of its findings regarding the cause of death and the commencement of smoking the Tribunal should have concluded that it could not be satisfied beyond reasonable doubt that Mr. Law's death did not arise out of or was not attributable to his war service; hence, it should not have been satisfied there were insufficient grounds for granting the claim.

On the appeal before us, it was argued for the appellant that Toohey J. fell into error by discarding causality. But we do not so read his judgment dealing with s.101(1)(b). His Honour did not discard causality; he held in effect that the Tribunal could not properly hold that it was satisfied beyond reasonable doubt "that there was no causal connection between war service and death".

The question is not whether one is satisfied that a causal relationship existed between war service and death, but whether the requisite relationship is excluded beyond reasonable doubt. Before answering this question, reference should be made to some of the provisions of ss.23, 24, 27 and 101. In argument attention was drawn to the lack of symmetry in the language of ss.24 and 101 and the language in the other sections, and it was submitted that the construction of s.101 standing alone is to be modified by reason of the asymmetrical provisions.

So far as is relevant to the argument, the provisions of s.27(1)(a) specify the duties of a Repatriation Board determining a claim for a pension:
"27(1) Each Board shall be charged with the duties of -

(a) determining whether the incapacity from which a member of the Forces is suffering or from which he has died -

(i) in fact resulted from an occurrence that happened during his war service;

(ii) in fact resulted from his employment in connection with naval or military preparations or operations;

(iii) arose out of or is attributable to his war service; or

(iv) has been contributed to in any material degree or has been aggravated, by the conditions of his war service,

and in the case of incapacity the nature and extent thereof."
Sub-para (i) is reflected in s.101(1)(a); sub-para (ii) in s.24(1)(b); sub-para (iii) in s.101(1)(b); and sub-para (iv) in s.101(2). Curiously s.27 speaks of incapacity and of death from the incapacity. Sections 101 and 24 alike speak of incapacity and of death, but neither links death with an antecedent incapacity.

Sections 24 and 101 impose liability upon the Commonwealth to pay pensions, and each is expressed in language which differs from s.27. Thus, s.101 provides for payment of pensions on incapacity or death of a member of the forces whose incapacity or death has resulted from any occurrence that happened during the period from enlistment to discharge in respect of that enlistment or of any member of the forces whose incapacity or death has arisen out of or is attributable to his war service. Whether a claim for a pension be made under either s.24 or s.101, a Board has a duty to direct its investigation and make its determination in relation to the conditions of eligibility specified by either section, and it is not prevented by the terms of s.27 from doing so.

An argument for the appellant was based upon the terms of s.27 and the definition of "incapacity" in s.23. These appear in Division 1, and so extend, by virtue of s.99, to s.101. As we understand the argument, it involves the notion that what one is looking for to satisfy s.101(1)(b) is death from an "incapacity", that is, from the disease of lung cancer in the present case, and one must find that the relevant "incapacity" "has resulted from any occurrence" specified in s.101(1)(a) or "has arisen out of or is attributable to his war service" (s.101(1)(b)).

As a matter of construction, the argument would introduce "incapacity" into the conditions of eligibility in s.101(1)(b) because it is referred to in s.27, a section which relates to the ascertainment of the answer to the question whether the s.101(1)(b) conditions of eligibility are fulfilled. Section 27 does not add a further condition to the s.101(1)(b) conditions of eligibility, for that would be inconsistent with the express provisions which confer the right to a pension, and it is not necessary to imply a further condition in order to give s.27 an intelligible operation. In the present case, the argument would not lead to a result different from that to which a construction of s.101(1)(b), standing alone, would lead. Mr. Law's death was no doubt caused by carcinoma of the lung. Whether it is the death or the carcinoma which is said to have resulted "from an occurrence" under s.101(1)(a) or to have "arisen out of or (to have been) attributable to war service" under s.101(1)(b), the conclusion will be the same.

To avoid this application of s.101(1) to the facts of the present case, it was further argued that a disease which causes death or incapacity must be contracted during war service if the resulting death or incapacity is to attract a pension. But there is nothing in s.101 to support this argument, and in particular, s.101(1A) does not bear the construction that the disease or infection therein referred to must be contracted while the member of the Forces is on war service.

Whether Mrs. Law is entitled under s.101(1)(a)

Section 101(1)(a) confers entitlement to a pension upon the death of any member of the Forces who was employed on active service and whose death has "resulted from any occurrence" that happened during his period of service. An entitlement is not conferred by para (a) unless there has been an "occurrence", there is a relationship between that occurrence and the death (a relationship expressed by the phrase "resulted from"), and there is a temporal coincidence of the occurrence with the period of service. Toohey J. held there was no entitlement under para (a) because there was no "occurrence". In particular, he held that neither the commencement of smoking nor the formation of the smoking habit was an "occurrence" within the meaning of para (a).

Mrs. Law gave a notice pursuant to Order 52 rule 22(3)(a) in lieu of notice of cross-appeal that she proposed to contend that Toohey J. was in error in arriving at this conclusion and on the appeal her counsel argued accordingly.

The word "occurrence" is not defined by the Act. The Oxford English Dictionary defines the word "occurrence", so far as relevant, as "something that occurs, happens, or takes place; an event, incident."

In our opinion, the word "occurrence", in the context of para (a), refers to the event, incident or mishap causing incapacity or death: see Distillers Co. Biochemicals (Aust.) Pty. Limited v. Ajax Insurance Co. Limited (1974) 130 C.L.R.1 per Stephen J. at p.19. It is an event, incident or mishap which is susceptible of differentiation from the course of events which constitute the ordinary course of life.

Counsel for Mrs. Law submitted that "occurrence" may be understood in its plural sense (s.23 of the Acts Interpretation Act 1901) and thus enables one to identify the repeated acts of smoking that took place during war service as "occurrences".

We do not regard the repeated acts of smoking during Mr. Law's war service as answering the description of an "occurrence" or, for that matter, "occurrences". The smoking of a cigarette, or of an indeterminate number of cigarettes over a period of years, during Mr. Law's war service, does not fairly answer the description of an "occurrence" or "occurrences".

Alternatively, counsel for Mrs. Law submitted that it was the formation of the habit of smoking during enlistment that was the "occurrence". One cannot describe the formation of the habit of smoking by Mr. Law during his period of war service as an "occurrence".

To the extent that Mrs. Law's case is based upon s.101(1)(a) it fails.

Whether Mrs. Law is entitled under s.101(1)(b)

Section 101(1)(b) confers entitlement to a pension upon the death of any member of the Forces whose death has "arisen out of or is attributable to" his war service. This provision is disjunctive, which suggests that each limb has a different operation. The application of para (b) requires consideration of -
. "has arisen out of"

. "is attributable to his war service"

. section 101(1A)

. section 107VH(2).

"Has arisen out of"

The expressions "injury arising out of and in the course of employment" and "injury arising out of or in the course of employment" found in workers' compensation legislation, have been the subject of much judicial discussion (see for example Kavanagh v. Commonwealth (1960) 103 C.L.R.547; Favelle Mort Limited v. Murray (1976) 133 C.L.R.580; Thom v. Sinclair (1917) A.C.127; Upton v. Great Central Railway Company (1924) A.C.302; and Dover Navigation Co. Limited v. Craig (1940) A.C.190). The expression "injury caused by or arising out of the use of an insured motor vehicle" has also been the subject of discussion (see Government Insurance Office of New South Wales v. R.J. Green and Lloyd Pty Limited (1966) 114 C.L.R.437 and Commercial and General Insurance Co. Limited v. Government Insurance Office of New South Wales (1973) 129 C.L.R.374). The precise nature of the relationship denoted by the phrase depends upon the subject matter being dealt with, the context in which the expression is used and the circumstances of the particular case.

In s.101(1)(b) the words "arising out of" require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or "proximate" or by saying it connotes a "real", "sole" or "dominant" cause.

The Act does not say death which is "caused by" or "results from" his war service - phrases which might connote a proximate causal relationship. The expression "arisen out of" is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description "arising out of".

"Is attributable to"

This expression used in different contexts has also been the subject of judicial discussion. The courts have construed the phrase when it appears in workers' compensation legislation, depriving a claimant of his right to relief where his injury was "attributable to serious and wilful misconduct" (see Sneddon v. Glasgow Coal Co. (1905) 42 Sc.L.R.365; cf. Richards v. Faulls Pty Limited (1971) W.A.R.129); in an instrument conferring an entitlement to war pensions, where the question was whether a disease was "attributable to war service" (Marshall v. Minister of Pensions (1947) 2 A11 E.R.706); in local government legislation, where the question was whether loss of employment was "attributable to" local government re-organization (Walsh v. Rother District Council (1978) 1 A11 E.R.510); in limitation statutes, where the question was whether a plaintiff knew at the material time that his injuries were "attributable to" the defendant's negligence (Smith v. Central Asbestos Co. Limited (1973) A.C.518).

It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s.101(1)(b), it is sufficient to show "attributability" if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made.

Effect of s.101(1A)

Section 101(1A) appears to be intended to extend the operation of s.101(1)(b). Thus, where a person has died from a disease, it renders para (b) applicable if, in the opinion of the Commission, it was due to a disease that was contracted and that would not have been contracted but for his war service or but for changes in his environment consequent upon his being on war service. Though causation seems to be required, a "but for" cause will suffice. As Toohey J. observed, it appears to eliminate the distinction drawn by Denning J. (as he then was) in Minister of Pensions v. Chennell (1947) K.B.250 and Marshall v. Minister for Pensions (1947) 2 All E.R.706 between a cause and something which should rather be regarded as being part of the circumstances in which the cause operates.

Effect of s.107VH(2)

Where the decision of the Commission which comes before the Tribunal is a decision refusing a claim for pension, the Tribunal is bound by s.107VH(2) to set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application. The Commission or a Board are, by reason of s.47(2) bound by a similar standard of proof.

In criminal trials the words "beyond reasonable doubt" are the time-honoured formula used to describe to the jury the standard of proof required and it has been said that it is undesirable to attempt to expound the meaning of the expression, which is readily understood (Green v. The Queen (1971) 126 C.L.R. 28; La Fontaine v. The Queen (1976) 136 C.L.R.62). In our opinion, the expression bears the same meaning when it is used in ss.47(2) and 107VH(2) (cf. Judd v. Minister of Pensions and National Insurance (1966) 2 Q.B.580 at p.592; Coe v. Minister of Pensions and National Insurance (1967) 1 Q.B.238).

But the standard of proof in a criminal trial is applied to allegations which the Crown bears the onus of proving, and these are usually allegations of a positive kind: the Crown seeks to show that conduct has been engaged in, or circumstances or relationships exist. Under s.107VH(2), the standard is applied to a negative proposition: "that there were insufficient grounds for granting the claim or application". The conditions to be fulfilled before a claim or application under s.101(1) may be granted are set out in the sub-section, and the grounds for granting a claim or application are the facts (including the relationships referred to in paras (a) and (b)) which fulfil those conditions. Where there is some evidence of facts which might fulfil the conditions of eligibility, the decision against allowing the claim must be set aside unless those facts are negatived beyond reasonable doubt - and a conclusion adverse to the claimant cannot be reached without taking account of the circumstances referred to in s.107VG. In Cadney v. Minister of Pensions and National Insurance (1966) 1 W.L.R.80, Edmund Davies J. (as he then was) appears to have arrived at a similar construction of the onus provision in the Personal Injuries (Civilian) Scheme 1964, though he thought that "reliable evidence" was required to raise a reasonable doubt. For our part, we should think it better to consider reliability of evidence not so much as a condition precedent to the raising of a reasonable doubt under s.107VH(2) (or under s.47(2)) but rather as a factor relevant to determining whether such a doubt exists.

Where the death of an erstwhile member of the forces might have arisen out of war service or might be attributable to it, a pension cannot be refused unless it is proved beyond reasonable doubt that his death was not so related to his war service. The scheme of the Act is not to establish an adversary method of determining claims and applications, but to have the Department make the relevant investigations and then to require that, if there is some evidence that the claimant is eligible to receive a pension, a pension be paid unless the investigations or the course of the proceedings throw up information which establishes beyond reasonable doubt that a pension is not payable. It is not for this Court or for the Tribunal to question whether this provision is excessively generous or to endeavour to read it down so that it does not have an operation beyond that which might be thought to be reasonable: the legislature has chosen its language and all that remains is to apply it.

In the present case, the Tribunal seems to have considered its function to be the making of findings on the evidence applying the civil standard of proof and then, having come to a conclusion, to consider whether its conclusion established beyond reasonable doubt that there were insufficient grounds for granting the claim. The introductory words of s.107VH(2) lend some support for this approach: the words "After the completion of its consideration in a proceeding on a review" suggest that the standard of proof beyond reasonable doubt is not intended to apply during consideration of the facts but only after that consideration has been completed. However, s.107VH(2) was obviously intended to operate in favour of claimants and it cannot operate sensibly unless the standard of proof beyond reasonable doubt is applied at each stage of the enquiry into the facts. Otherwise, one cannot attain satisfaction beyond reasonable doubt that there are insufficient grounds for granting the claim. Section 107VG is consistent with this view.

The finding of the Tribunal that there was no evidence to indicate that Mr. Law started to smoke because of the conditions and demands of his particular war service or because of the conditions in general pertaining to prisoners-of-war was erroneous in point of law. While there was no direct evidence from Mr. Law, he being dead, there was evidence of circumstances which raised a real possibility that he did start to smoke because of those conditions. If the question were whether the claimant had proved that that was the correct conclusion, we should not disagree with a finding that she had not. However, that is not the question which the legislation posed for the Tribunal. The Tribunal could not properly be satisfied that Mr. Law had not started to smoke for the reasons stated.

We are doubtful whether the finding that Mr. Law was not psychologically incapable of reducing his smoking in the post-war period, was of any relevance. But in any event, it seems that on the evidence this finding could not be arrived at beyond a reasonable doubt.

These conclusions do not end the matter. The next question is whether as a matter of law, on the facts properly found and on the evidence before it, the Tribunal could have been satisfied beyond a reasonable doubt that there were insufficient grounds under s.101(1)(b) for granting the claim.

A feature of the evidence was a conflict in the medical opinions of Dr. Perkins and Dr. Stockler on the one hand and Sir Edward Dunlop on the other. The Commission and, in turn, the Tribunal, appear to have preferred the opinions of Dr. Perkins and Dr. Stockler. In cases involving onus of proof where the civil standard of proof applies, this may be an acceptable course. Where, however, a Tribunal has to be satisfied beyond reasonable doubt that a particular finding is not open, notwithstanding that it is supported by medical opinion, it is not sufficient to point to contrary medical opinion which is preferred. It is insufficient unless the contrary opinion is such as to destroy the favourable opinion. Here there was no contrary opinion which could support the destruction of Sir Edward Dunlop's opinion. There is simply a difference of opinion.

When all that appears are contradictory medical opinions expressed in written reports by medical practitioners of good repute, in general a finding that one of those opinions is untenable cannot be made unless that opinion is inherently incredible, or the other opinion or the evidence of other witnesses exposes a manifest error in it, or its incredibility appears on examination or cross-examination of its author. Sir Edward Dunlop's opinion was not shown to be untenable: all that was shown was that a different opinion was held by other reputable medical practitioners.

The question remains whether the opinion of Sir Edward Dunlop, taken with and in the context of the other facts of the case, furnishes a basis for reaching a decision on the footing that the death of Mr. Law arose out of or was attributable to his war service in the sense we have discussed.

This evidence shows that Mr. Law died from carcinoma of the lung which may have been caused by his smoking; that Mr. Law may have started to smoke because of the conditions of his particular war service or because of the conditions pertaining to prisoners-of-war. The possibilities then are that his smoking while on war service was the start of a cumulative process which ultimately produced cancer of the lung which caused his death; that his habit of smoking formed while on war service and continued afterwards ultimately resulted in cancer of the lung and death; and that the debility produced by his war service, followed by one debilitating disease after another, interfered with the function of his body referred to as "immune surveillance" and so damaged the self-protective process of his body against cancer, permitting it to take hold. If these were the facts, then Mr. Law's death would be attributable to his war service, and would have arisen out of it. The case would fall within s.101(1) (b), and the respondent would be entitled to a pension. These possibilities are not fantastic - they are real possibilities.

In the result, we are of opinion that the Tribunal could not properly be satisfied beyond a reasonable doubt that there were insufficient grounds for granting the claim or application. We would dismiss the appeal with costs.