Repatriation Commission v McLean

[1998] FCA 373

FEDERAL COURT OF AUSTRALIA 

VETERANS’ AFFAIRS - Application for review of decision of Administrative Appeals Tribunal that death of veteran was war-caused - where decision made in reliance on a clause of the Statement of Principles which was not relied on by the respondent - whether failure to accord procedural fairness - whether the material before the Tribunal raised a reasonable hypothesis connecting the death of the veteran with the circumstances of the service rendered by the veteran - whether the matter should be remitted to the Tribunal with a direction that the Statement of Principles to be applied is the Statement in force at the date of the Tribunal decision.

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A

Beale v Administrative Appeals Tribunal (Lindgren J, unreported, 16 March 1998), refd
Director of Public Works v Ho Po Sang [1961] AC 901, refd
Lee v Department of Social Security (1996) 68 FCR 491, foll
Repatriation Commission v Bey (1997) 149 ALR 721, dist
Robertson v City of Nunawading [1973] VR 819, refd

REPATRIATION COMMISSION v JOYCE LEONIE MCLEAN
NG 946 of 1997

DAVIES J
17 APRIL 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 946  of   1997

ON APPEAL FROM A DECISION OF THE VETERANS' APPEALS               DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JOYCE LEONIE MCLEAN RESPONDENT

JUDGE:	DAVIES J
DATE:	17 APRIL 1998
PLACE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:    

The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 946 of 1997

ON APPEAL FROM A DECISION OF THE VETERANS' APPEALS               DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	REPATRIATION COMMISSION APPLICANT
AND:	JOYCE LEONIE MCLEAN RESPONDENT

JUDGE:	DAVIES J
DATE:	17 APRIL 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") in which the Tribunal found that the present respondent, Mrs Joyce Leonie McLean, had established in accordance with the standards of proof laid down by ss 120 and 120A of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), that the death of her husband, Neville Bruce McLean, was attributable to a war cause.

One of the grounds of appeal is that the Tribunal failed to accord procedural fairness to the present appellant, the Repatriation Commission ("the Commission"). Another is that the decision of the Tribunal was not open having regard to the evidence before it. Another is that the Tribunal applied the wrong statement of principles under s 120A. Relevant provisions of the Act provide as follows:

"120.(1)  Where  a  claim  under  Part  II  for  a  pension  in  respect  of  the  incapacity  from  injury  or  disease  of  a  veteran,  or  of  the  death  of  a  veteran,  relates  to  the  operational  service  rendered  by  the  veteran,  the  Commission  shall  determine  that  the  injury  was  a  war-caused  injury,  that  the  disease  was  a  war-caused  disease  or  that  the  death  of  the  veteran  was  war-caused,  as  the  case  may  be,  unless  it  is  satisfied,  beyond  reasonable  doubt,  that  there  is  no  sufficient  ground  for  making  that  determination. 

...

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

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

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

(c)that  the  death  was  war-caused  or  defence-caused; 

as  the  case  may  be,  if  the  Commission,  after  consideration  of  the  whole  of  the  material  before  it,  is  of  the  opinion  that  the  material  before  it  does  not  raise  a  reasonable  hypothesis  connecting  the  injury,  disease  or  death  with  the  circumstances  of  the  particular  service  rendered  by  the  person. 

...

120A(1)This  section  applies  to  any  of  the  following  claims  made  on  or  after  1  June  1994: 

(a) a  claim  under  Part  II  that  relates  to  the  operational  service  rendered  by  a  veteran; 

(b)a claim under Part IV that relates to: 

...

(ii)the  hazardous  service  rendered  by  a  member  of  the  Forces. 

(2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b)has declared that it does not propose to make such a Statement of Principles.

(3)       For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles under subsection 196B(2) or (11); or

(b)a determination of the Commission under subsection 180A(2); that upholds the hypothesis.

(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)       the kind of injury suffered by the person; or
           (b)       the kind of disease contracted by the person; or
           (c)       the kind of death met by the person;

as the case may be."

Mr McLean enlisted on 13 May 1940 and served throughout the war as an aircraft mechanic and fitter and was discharged on 18 July 1946. His work involved him in bending and twisting, working in confined spaces and carrying heavy boxes of tools and ammunition.  Mr McLean had a congenital condition involving the partial sacralisation on the right side of the fifth lumbar vertebra, which is the lowest of the lumbar vertebrae.  The partial sacralisation of the fifth lumbar vertebra is a congenital variation which is seen in a number of people.  It can give rise to lower back pain. 

Mr McLean's medical records show that, in 1943, an x-ray was taken.  A specialist reported that there was no evidence of a calculus seen in the renal tract but that "Partial Sacralisation of the 5th Lumbar Vertebra on the Rt side noted."  On 8 February 1944, Mr McLean complained of pain in the lumbar-sacral area.  I take the note "3/52" to refer to three weeks.  The remainder of the record of that date is indecipherable.  Later, on 26 June 1946, a further x-ray was taken and it was reported that there was sacralisation of the fifth lumbar segment on the right side which was congenital in origin.  The x-ray also showed an opacity in the anterior of the abdominal wall, which was a reference to a musculature or ligamentous rather than a spinal problem.  It was noted at the same time that Mr McLean had had been diagnosed "Injury to back 5/12 ago", which I take to be five months previously.  It may be assumed that pain had continued at least on and off  during that five months period leading to the request for the x-ray. 

Mr McLean's medical records did not record that he left the service with a bad back.  However, the Tribunal accepted the evidence of witnesses who knew Mr McLean that, by the time he left the Services, he had a chronic bad back and that, thereafter, this bad back limited his mobility.  In 1953, when aged 39, Mr McLean was in charge of a group of persons who were felling trees.  He was somewhere down the slope from a tree which was being felled.  As the tree was about to fall, Mr McLean told another worker to get out of the way and that worker leapt over a nearby log and took protection.  The tree fell, hitting a large half tonne rock which fell down the hillside, striking and killing Mr McLean.  The hypothesis was that war service gave rise to Mr McLean's chronic back problem, that this limited his mobility and that it was likely that, because of  limited mobility, he failed to move to a place of safety and thereby avoid the falling rock.

The case was not put that war service aggravated Mr McLean's underlying congenital condition, notwithstanding that the evidence accepted by the Tribunal was that Mr McLean had not shown any symptoms of a back problem when he entered the services but that, by the time he was discharged, he had a chronic problem. The reference in 1944 to pain which had lasted for three weeks, the reference in 1946 to problems over a period of five months and the taking of the x-rays in 1943 and 1946 which identified the congenital condition, would seem to provide a convincing case that Mr McLean's back problem was aggravated by his war service. I assume that it was considered by Mrs McLean's advisers that Mr McLean's problem with the fifth lumbar vertebra was a congenital variation and did not involve an "injury" or a "disease" for the purposes of s 9(1)(e) of the Act. As the matter was not raised, I need not consider whether that would or would not be so; but it is surprising that, if Mr McLean's war service resulted in injury to his first, second, third and fourth lumbar vertebra, as Dr Seaton thought, it did not also cause injury to his fifth lumbar vertebra.

The orthopaedic surgeon who gave evidence in support of Mrs McLean's case, Dr Douglass G Seaton, placed no weight upon the congenital condition or the x-rays taken during the war service.  When asked about the medical records of June 1946, Dr Seaton merely said:

"He [Mr McLean] has a defect in the lumbar-sacral region, and he was getting pain as a result of it."

Dr Seaton put the hypothesis on the basis that, because there was limited movement in Mr McLean's fifth lumbar vertebrae, that limitation would have placed a strain on the other lumbar disks.  Dr Seaton said:

"It would have added to his back strain because of the fact that if he were unable to move the lumbo-sacral joint, which he could not with the sacralisation, then he must have put extra weight on the only four remaining discs, that is the first, second, third, and fourth, because he did not have a fifth disc that could move."

Dr Seaton went on to say:

"Well, that is why I assume that that was the condition that he was suffering with on the balance of probabilities, giving his experience in the warfare when he served overseas in Japan that would have led to wear out his back by the age of 40.

...

In that he has, in my opinion, over use in his back during war service, and that he served also in Japan after the war a very heavy task of being an aircraft mechanic, and did other duties in the aircraft, such as lifting boxes with ammunition.

...

I have stated that I have no proof because I do not have any autopsy record of spondylosis or spondylitis.  But on the balance of probabilities, and using common sense, he would have suffered with this condition ... then very definitely he would not be able to move out of the way of a falling rock as quickly as he would have had if he had been in a position that he had a normal back.  In other words, his mobility was limited when he was killed on 24 August 1953."

There were several difficulties with Dr Seaton's evidence.  One was that there was no objective evidence that Mr McLean had lumbar spondylosis.  The x-ray taken in June 1946 did not disclose lumbar spondylosis, which is a degenerative disease of the spine.  Nor was there any later medical evidence.  Dr Seaton relied upon his own experience.  In his view, the type of work which Mr McLean undertook would have led to the wearing out of his back at an early age.  A second difficulty was that Dr Seaton found it difficult to fit his views into any clause of the statement of principles which he had before him, which was a statement of principles incorporating amendments up to March 1997.  A third difficulty with Dr Seaton's evidence was that he did not approve of the statement of principles.  Thus, of cl (e), he said:  "The actual statement is incorrect, medically."  Of the limitation in the definition of "Trauma" to pain occurring within 24 hours of the event, Dr Seaton said:

"Trauma - they have again misinterpreted ....  Trauma does not mean anything that occurs within 24 hours; it can happen over a period of 24 years."

Not surprisingly, Dr Seaton's evidence was not very helpful. Section 120A requires that any hypothesis be upheld by the relevant statement of principles. Dr Seaton nominated clauses 1(e), (f), (g) and (h) of the composite statement of principles and these were the clauses upon which counsel for Mrs McLean relied. Counsel for the Commissioner cross-examined Dr Seaton sufficiently to show that none of these clauses was applicable to Mr McLean's circumstances.

In its reasons for judgment, the Tribunal referred to and relied upon a different clause, clause 1(b) of the 1995 statement of principles which read:

"1(b) contracting significant inflammatory joint disease in the lumbar spine before the clinical onset of lumbar spondylosis; ..."

The statement of principles defined "inflammatory joint disease" as

"`Inflammatory joint disease' means a disease affecting a joint or joints where there is swelling, inflammation and pain that persisted for at least five days".

The crux of the Tribunal's reasoning appears in these passages:

"The evidence before me establishes to my satisfaction, and I so find, that the veteran suffered symptoms of a back condition during his war service prior to 24 June 1946 when sacralisation of the fifth Lumbar segment was diagnosed.  The material before me evidencing that the veteran had a `chronic bad back' ... has not been contested.

...

The consequence of the congenital defect was said to be that the veteran's work as a mechanic working on aircraft maintenance while on war service would have placed extra stress on the lumbar region of the spine with resulting inflammation resulting in spondylitis.

...

Taking all the material into account I am therefore satisfied that it is more likely than not that the veteran suffered an inflammatory condition of the spine during his war service which I find was ankylosing spondylitis resulting in a stiffening of the veteran's spine.

...

[I]t is more likely than not that the veteran suffered spondylitis during his operational service exacerbated by the congenital defect in his spine and the resulting inflammation caused the onset of lumbar spondylosis."

However, Dr Seaton had made no reference at all to "inflammation" except that, when early in his evidence he had been asked whether there was any difference between "acute spondylosis" and "acute spondylitis", he had replied "Means exactly the same".  Counsel for Mrs McLean went on to ask, "So it is not merely that one is inflammation and the other is structural, if I can put it that way?"  Dr Seaton had replied, "Well, there have been some Indian doctors in the Department who have tried to read it that way."  There was no specific evidence from Dr Seaton that Mr McLean had suffered from inflammation of the lumbar spine, let alone "significant inflammation", as required by cl 1(b) of the statement of principles.  Presumably, the Tribunal relied upon its own knowledge that spondylosis is a condition which involves or may involve inflammation. 

The Tribunal also referred to "ankylosing spondylitis".  Dr Seaton did not suggest and there is no evidence that Mr McLean suffered from ankylosing spondylitis.

I need discuss whether these findings of fact of themselves involved reviewable errors.

The Tribunal's decision was flawed in that it failed to accord procedural fairness to the Commission.  The Tribunal failed to make counsel for the Commission aware of the fact that it was considering the application of clause 1(b) of the 1995 statement of principles, a clause which was not mentioned by Dr Seaton or by counsel for Mrs McLean during the hearing.  Had counsel for the Commissioner been aware that clause 1(b) was to be relied upon, he would have wished to ask further questions of Dr Seaton and he may indeed have wished to adduce evidence on the point. 

One issue under clause 1(b), is when "the clinical onset of lumbar spondylosis" occurred.  I would assume that this would be the point of time when there were symptoms from which a clinician could diagnose lumbar spondylosis but that may not be the case.  Lumbar spondylosis was not diagnosed by any medical practitioner during Mr McLean's lifetime and was not disclosed by the x-ray taken on 24 June 1946.

Another issue that counsel for the Commission would have wished to put to Dr Seaton was whether, during his war service, Mr McLean contracted significant inflammatory joint disease.  As Dr Seaton did not give evidence that this had occurred and as cl l(b) was not relied on during the hearing, counsel for the Commission had no need to cross-examine on the point.

This is a plain case where the Tribunal based its decision on a point which was not raised as an issue in the proceedings before the Tribunal.  The Commission therefore did not have a fair opportunity to bring forward the matters on which it would have wished to rely had it known that the point was an issue. 

Another issue raised on behalf of the Commission is that the hypothesis with respect to the falling rock was not a reasonable hypothesis connecting the death with Mr McLean's lack of mobility.  It was put by Mr Peter Hanks, with whom Mr Robert Beech-Jones of counsel appeared for the Commission, that it was only one amongst a range of possibilities that Mr McLean's lack of mobility played any part in the incident and that other possibilities were just as likely, that Mr McLean may have thought he was in a safe position or may not have been aware of the rock or not until it was too late for him to move out of its way.  Mr Hanks submitted that the facts must point to the hypothesis as being the correct explanation.  Mr Hanks attempted to obtain support from Repatriation Commission v Bey (1997) 149 ALR 721. But that was a case where the Administrative Appeals Tribunal had held that there was no reasonable hypothesis in the circumstance that the veteran had developed the condition of rheumatoid arthritis, a condition of unknown aetiology, where the facts as to what caused it were simply unknown. I totally agree with the decision of the Court that there was no error of law in the decision of the Administrative Appeals Tribunal in the circumstances. However, s120(3) does not require anything more than that the material raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service. A reasonable hypothesis may be one hypothesis amongst others. It is sufficient that the hypothesis is reasonable. Whether or not that is so is a matter of judgment for the decision-maker of fact.

There was evidence before the Tribunal that, shortly before the tree fell, Mr McLean had called out to a nearby workman "Get clear Jack and watch she does not shoot".  That workman, Mr CJ Jones, gave this evidence:

"I could see that we were in danger if we did not act quickly and I jumped over a big log nearby in the undergrowth and lay flat alongside the log."

From this evidence, it may be inferred that, because of his bad back, Mr McLean did not take the same steps to protect himself as he had advised Mr Jones to do.  That is not the only possibility but it is one possibility suggested by the facts.  Then there was the evidence that the rock weighing about half a tonne travelled over 60 feet when dislodged by the falling tree until it hit Mr McLean.  Another workman, Mr NK McDougal, gave evidence that:

"At the same time as I heard the tree hit the ground I heard a noise like a large rock rolling down the mountain in the direction the falling tree went."

From this evidence, it may be inferred that Mr McLean would have heard the rock as it came towards him.  Finally, there was the evidence that the rock hit Mr McLean on his back and head on the left side with the left side of his chest being crushed towards the forward portion of the opposite side of his chest.  A possible inference from this is that Mr McLean had turned to move away from the rock but was unable to avoid it.

The Tribunal concluded that the hypothesis was a reasonable one and said:

"In this case I am satisfied that Dr Seaton's hypothesis is not fanciful and is, in fact, the most likely explanation for the veteran's death.  He was an experienced log getter, clearly aware on the day of the dangers of the situation in which he was working but died because he was unable to avoid the descending boulder.  His restricted mobility is a likely explanation for this situation and a material reason for that restricted mobility was the war-caused condition of lumbar spondylosis."

In my opinion, this was a finding based on the facts of the case.  Although there were other possibilities. I am satisfied that the hypothesis was raised by the facts which were before the Tribunal.  Whether or not the hypothesis was a reasonable one was a matter for the Tribunal.  I am satisfied that its decision on this point was open.

Because of the lack of procedural fairness, the matter will be remitted to the Administrative Appeals Tribunal for rehearing.  In this circumstance, Mr Hanks submitted that the matter should be sent to the Administrative Appeals Tribunal with a direction that the statement of principles to be applied will be the statement in force at the date of the decision of the Administrative Appeals Tribunal.  Mr AT McInnes QC, with whom Mr MG Vincent of counsel appeared for Mrs McLean, submitted, however, that the relevant statement was Instrument No 105 of 1995 which was in force when, on 2 June 1995, Mrs McLean lodged her claim for pension and when, on 4 July 1995, the Commission rejected that claim.

I do not propose to give any direction on this point.  The decision of the Court (Cooper & Moore JJ, Davies J dissenting) in Lee v Department of Social Security (1996) 68 FCR 491 has laid it down in general, I believe, that once an application for an administrative decision has been lodged and a decision made thereon, then any review of that decision, whether it be internal review, review by an intermediate administrative tribunal or review by the Administrative Appeals Tribunal, must apply the law as it stood when the primary decision was made. That view was taken in Lee, notwithstanding that the applicant had sought waiver of a debt under an absolute discretion, as s 1237 of the Social Security Act 1991 (Cth) was then expressed. The majority considered that an amendment to s 1237, which came into effect prior to internal review in the Department of Social Security, and which limited the Secretary's right to waive a debt, did not affect the internal review or subsequent reviews by the Social Security Appeals Tribunal and the Administrative Appeals Tribunal. The issue is a debateable one as the view of the majority does not accord with the approach adopted in those off-cited authorities, Director of Public Works v Ho Po Sang [1961] AC 901 and Robertson v City ofNunawading [1973] VR 819. However, special leave to appeal to the High Court, which was at first granted, was subsequently revoked when there was another change to the relevant legislation. This issue was not discussed by Lindgren J in his judgment in Beale v Administrative Appeals Tribunal (unreported, 16 March 1998). 

But for the decision in Lee, I would agree with Mr Hanks' submission.  However, I could not give the direction sought, that the Administrative Appeals Tribunal should apply the statement of principles in force at the date of its decision, confident that it did not conflict with Lee. 

Mr Hanks submitted that the provisions of the Act, particularly s 120A, made it clear that the Commission was to apply the statement of principles in force at the time of its decision. That is so but neither s 120 nor s 120A deal with the position of the review authority.

I would advise the Administrative Appeals Tribunal on its rehearing to make findings under the statement of principles which was operative when the Commission gave its decision in 1995 and also under any statement of principles which may be in force when the Administrative Appeals Tribunal gives its decision.  Such findings will enable the legal issues to be sorted out at a higher level should there be further debate about them. 

For the reasons I have given, the decision of the Tribunal should be set aside.  The matter will be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.  In this circumstance, the parties do not seek an order as to costs.    The notice of contention was not pressed.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date:  17 April 1998

Counsel for the Applicant:	PJ Hanks with RT Beech-Jones
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	AT McInnes QC with MG Vincent
Solicitor for the Respondent:	Kenneth Harrison
Date of Hearing:	19 March 1998
Date of Judgment:	17 April 1998