Repatriation Commission v Reid, Iris May

[1984] FCA 148

Re: REPATRIATION COMMISSION
And: IRIS MAY REID
No. G231 of 1982
54 ALR 157
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Repatriation - pension payable to widow - death of former member of the Forces from myocardial infarction - aetiology of myocardial infarction unknown - whether Commision entitled to succeed in absence of evidence of a real possibility of a causal relationship between war service and death - whether Tribunal bound to find an absence of a causal relationship by reason of uncontradicted medical evidence - whether Tribunal bound to require the provision of further material uner s.107VZ in order to resolve uncertainty.

Repatriation Act, 1920 - ss.107VG, 107VH, 107VZ

HEARING

SYDNEY

#DATE 1:6:1984

ORDER

1. The appeal be dismissed.

2. The Appellant pay to the Respondent her costs as agreed or taxed.

JUDGE1

The respondent is the widow of Prosper James Kable who died on 1 July, 1977, aged 55 years. The deceased enlisted in the Australian Army on 19 January, 1942. He was discharged on 24 May, 1946. Apart from a period of about six months in New Guinea, from 10 November, 1942 until 11 May, 1943, he served within Australia. Mr Kable's medical record reveals that he suffered from rubella in August, 1942 and from an unidentified fever over a period of three or four days whilst in New Guinea. Otherwise he appears to have been fit throughout the whole of his period of service. In his medical discharge statement he denied any other wounds, diseases or injuries. Upon clinical examination he was passed fit, his blood pressure being measured at 130/85. No claim was ever made for repatriation benefits by the deceased.

2. On 21 April, 1977 Mr Kable was injured in a motor accident at Kariong, near Gosford, as a result of which he sustained fractures to the ribs, right humerus, wrist, hand, right tibia and fibula and to both feet. On 18 May, 1978, whilst in Gosford Hospital, he suffered a myocardial infarction, as a result of which he was transferred to Belmont Hospital where he died six weeks later. The Coroner found the cause of death as being "the combined effects of myocardial infarction and multiple skeletal injuries following a motor vehicle accident when ...."

3. On 8 September, 1978 the respondent lodged an application for a repatriation penion, as widow of the deceased. Her application claimed, without amplification, that the death was caused by war service. However, the respondent did supply a medical history of the deceased which referred to malaria in the period 1946-1949, treated by a Dr Jeeves of Thornleigh, "blood pressure and kidney condition" in the period 1950-1971, treated by a Dr Richardson of Tamworth, and "blood pressure" in the period 1971-1977 treated by a Dr Loveridge of Teralba. Letters seeking clinical notes were sent to each of Dr Richardson and Dr Loveridge but not to Dr Jeeves. Only Dr Loveridge responded. He revealed regular attendances upon the deceased between 9 April, 1973 and the date of the motor accident. When first seen the deceased "complained of frequent headaches and being short of breath on exertion. Stated he was under a lot of strain at work". His blood pressure was found to be 210/110 but three weeks later, after treatment, had reduced to 130/90. However, two weeks later the deceased complained of chest pain on exertion and on stress. On 28 June, 1973 he suffered anterio-septal infarction. Tests showed high levels of cholesterol and triglycerides. Notwithstanding, Mr Kable's condition was stabilized by regular medication until the motor accident.

4. Section 48 of the Repatriation Act, 1920, as amended requires a report of a medical practitioner in relation to any claim in respect of the death of a member of the Forces setting out the medical practitioner's opinion as to the cause of death and as to whether the incapacity from which the member has died resulted from an occurrence that happened during his war service, resulted from his employment in connection with naval or military preparations or operations, arose out of or is attributable to his war service or has been contributed to in any material degree, or has been aggravated, by the conditions of his war service. Sub-section (2) requires that:-

"Where a medical practitioner entertains any doubt concerning any of the matters which by the last preceding sub-section he is required to report upon, he shall state in his report that he entertains such a doubt and shall indicate, as far as practicable, the nature and extent of his doubt".

1. The s.48 report in this case was prepared by Dr J Fromer, a medical officer employed by the Commission. Dr Fromer had not, of course, seen the deceased but she had reviewed the material on file including Dr Loveridge's notes. The report included the following:-
   
   

"Cause: Combined effects of myocardial infarction &

multiple skeletal injuries following a motor vehicle accident when the motor vehicle he was driving collided with another motor vehicle being driven along the Pacific Highway at Kariong. The basic cause of death was coronary heart disease. The multiple skeletal injuries (fractures) may have perhaps contributed to his

death, as without them he may have survived the infarction, his heart may not have gone into failure..... He had a history of hypertension for many years & angina & previous infarction in 1973. In this case the cause of the disability (C.H.D.) was his advanced age, hyperlipidaemia (very high triglycerides), living in an economically advanced western country & male sex. The most important factor however was hypertension.

OCCURRENCE: Set out whether, in your opinion, the incapacity from which the veteran has died resulted from an occurrence that happened during his eligible period of service .... No. There is no evidence of the disability on service, nor of any illness or event likely to initiate it. The first manifestation of the incapacity was documented in 1973 when he developed chest pains & a few months later his first myocardial infarction. In this case the risk factors involved were hypertension of long standing, increasing age, hyperlipidaema, living in an affluent society & male sex.

ATTRIBUTABILITY: Set out whether, in your opinion, the

incapacity from which the veteran has died, arose out of, or is attributable to his eligible period/s of service.

No. Please see "cause & occurrence..."

1. Dr Fromer did not indicate any doubt concerning the matters canvassed in her report.

2. On 5 January, 1979 a Repatriation Board rejected the claim. On 25 January, 1959 the respondent appealed to the appellant Commission stating:-
   
   

"I consider that conditions of war service and the malaria he suffered with after his discharge from the service contributed to his death from myocardial infarction".

1. After lodgement of the appeal the matter went into the first of several periods of dormancy; nothing happened until an enquiry was made by Legacy on behalf of the respondent on 14 December, 1979. The position was reviewed by Dr G Perkins, a senior medical officer employed by the Commission, who reported on 28 December, 1979:-
   
   

"The veteran died from myocardial infarction secondary to coronary atherosclerosis. The veteran had a previous history of hypertension, type IV hyperlipoproteinaemia and renal colic. I am unable to relate any of these disorders to attacks of malaria during service or after discharge".

1. Three weeks later, on 16 January, 1980, the Commission rejected the appeal, accepting the opinions of the departmental medical officers.

2. On 4 February, 1980 the respondent appealed to the Repatriation Review Tribunal submitting fuller information:-
   
   

"I consider my late husband's death from Coronary Disease "attributable to his service" for the following reasons:-

We know stress and diet are a major cause of hypertension and corconary disease, and I maintain the years of active service would have been the beginning of this condition in my late husband's case. His chances of longevity were high for the following reasons:-

(1) Heredity (Parents & Grandparents on both sides lived a long age - over 80 years).

(2) A non-smoker.

(3) A non-drinker.

(4) A low cholesterol diet (mainly vegetarian). The medical Officer has given Hypertension as main reason for his death. For some years after his discharge from the service, my late husband was unable to sleep, and suffered from headaches, which could have been caused by high blood pressure. He did not seek medical advice. It is only in recent years, we the public, have been aware of High blood presure and its symptoms and to have regular Medical checks".

1. The Commission acknowledged the appeal but nothing was done to bring the matter before the Tribunal. On 16 May, 1980 the Commission suggested deferment of the hearing pending the determination of another case thought likely to furnish guidance. On 14 January, 1982 the Commission indicated that it was ready to proceed to a hearing and on 21 October, 1982, two years and nine months after the Commission's decision, the matter came before the Tribunal. The respondent, by now remarried, was represented by a Legacy officer. The Commission was not represented. The hearing must have lasted only a few minutes; the whole transcript occupies little more than four pages. No oral evidence was given. No criticism was offered of the views of the departmental medical officers. The respondent's representative contented himself with drawing attention to a short paper on coronary heart disease appended to Dr Fromer's report in which the statement is made that "the basic aetiology is unknown, but it is believed to be multifactorial" and to Dr. Fromer's reference to hypertension. He submitted:-
   
   

"The hypertension which they claim to be the main factor is unknown. There is nothing in the s.48 opinion, or anything in any of the rest of the reasons for dismissing the claim which excludes the possibility of the unknown causes being caused by war service or arising out of war service".

1. On 2 November, 1982 the Tribunal announced its decision. It allowed the appeal and held the respondent entitled to a pension. The totality of its reasons was expressed in three paragraphs:-
   
   

"If the Act required the Applicant to show that her former husband's death was related to his war service even on a balance of probabilities, the Tribunal would agree with the Commission's view. This, however, is not the law. The Act requires the Commission to satisfy the Tribunal beyond reasonable doubt that all of the possible relationships between war service and death have been excluded.

In the Tribunal's view, there is nothing before it which would enable it to be so satisfied. The Departmental medical officers' opinions contain a series of unexplained assertions.

Nothing has been put before the Tribunal to refute the possibility of a relationship between death and war service in this case and in particular the onus placed upon the Commission has not been discharged, the Tribunal finds. Accordingly, the Tribunal is not therefore satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim".

1. On 2 December, 1982 the Commission filed in this Court a Notice of Appeal but it was not until 7 November, 1983 that Appeal Papers were filed. It is in these circumstances, nearly seven years after the death of Mr Kable and more than five and a half years after his widow first claimed a pension, that this Court is called upon to determine whether the Repatriation Review Tribunal erred in law in its decision to uphold her claim. In this particular case there may have been some justification for delaying the hearing before the Tribunal pending determination of a case thought likely to afford guidance - presumably, although it was not identified, Repatriation Commission v. Law (1980) 31 ALR 140 (Full Federal Court), (1981) 147 CLR 635 (High Court). But, even accepting that factor, the delays which this matter has suffered are, in my view, unacceptable. A claimant entitled to a pension may suffer significant hardship by delay in payment. Even a claimant who is ultimately held not to be entitled to a pension may suffer considerable anxiety and other prejudice as a result of being left for years in a state of uncertainty.

2. Mr Burbidge, QC senior counsel for the appellant Commission, relied upon three grounds of appeal. His third ground, which I shall discuss first, was that the Repatriation Review Tribunal erred in law in failing to hold that in the absence of any evidence of a causal relationship between the death of Mr Kable and his war service the claim must fail. The proposition was said to be the same as that put to Fitzgerald J in Repatriation Commission v. Williams (not yet reported 30 March, 1984):-
   
   

"that a claim must be rejected unless there is something in the material pointing to a 'real possibility' of each element upon which an entitlement may depend which is not disproved beyond reasonable doubt by other material".

1. In Williams Fitzgerald J found it unnecessary to deal with that submission (p.3) but it was considered at some length by the members of a Full Court in O'Brien v. Repatriation Commission (not yet reported 11 April, 1984). Sweeney J, at pp 9-10, held that the matter for decision "is best left in words (of) the Act itself, so that the Tribunal should pose for itself the question whether it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim". That test "will not necessarily produce the answer that, where the aetiology of a condition from which an applicant suffers is unknown, he must succeed in his claim. Very often such an applicant will succeed, but the state of the evidence, including the state of medical knowledge of a particular condition, may lead to the result that the Tribunal will conclude that, while it cannot be satisfied beyond reasonable doubt of the precise cause of the condition, it may be so satisfied that there was no connection between war service and the condition".

2. Keely and Fitzgerald JJ, in a joint judgement, analysed the logic of the Commission's proposition before concluding at p. 38:-
   
   

"Thus, it may not be established beyond reasonable doubt that incapacity or death is not 'connected with' war service either because there is material which points positively to a cause of the incapacity or death which is or might be so 'connected' ...., or because of some inadequacy in the material to show the absence of a connection".

1. There was, before me, some discussion as to the
   extent to which the observations in O'Brien on this matter should be considered to be the ratio of the Full Court's decision and therefore binding upon me as a matter of precedent. I do not think it useful to pursue that question. As Mr Burbidge recognised, I would, as a matter of comity if not obligation, give effect to the recently expressed, fully reasoned and unanimous views of the Full Court on this matter. Mr Burbidge acknowledged that this first submission is inconsistent with what was said in O'Brien and therefore must be rejected by me.

2. The second submission of the Commission is that the Tribunal erred in law in failing to accept and act upon the uncontradicted evidence of Dr Fromer that no relevant relationship existed between the death and the war service of Mr Kable. He referred to the principle applied in the Full Court of the Supreme Court of New South Wales in Holman v. Holman (1964) 81 WN (NSW) 374 that, in a trial heard by a judge sitting without a jury or by magistrates, where there is evidence sworn to prove one side of the issue and there is no evidence on the other side to contradict it the Court is bound to accept that evidence unless it is so incredible that no reasonable man could accept it.

3. This principle applies to opinion evidence, where such evidence is admissible, and even in cases where the relevant standard is proof beyond reasonable doubt. In Hardy v. Gillett (1976) VR 392 Anderson J in the Victorian Supreme Court, held that a magistrate hearing a criminal prosecution had erred in law in failing to accept and to act upon expert evidence tendered by the prosecution to establish that a particular substance was Cannabis sativa L. At p. 396 Anderson J expressed the general principle:-
   
   

"Where uncontradicted evidence, which is inherently reasonable, probable, and conclusive of the matter, has been given, the court is bound to accept it".

1. The report of Dr Fromer was part of the Commission's file. It was therefore properly before the Tribunal: see s.107VH(1) of the Act. The opinion of Dr. Fromer was not verified by oath but s.107VG of the Act specifically provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence. This must include a permission to have regard to the content of the file properly before it. In those circumstances it is not surprising that Dr Fromer's report was treated by both the members of the Tribunal and the representative of the respondent as evidence before the Tribunal of the matters contained therein. In my view this attitude was correct.

2. In Hardy the relevant opinion evidence arose out of an analysis of a substance which had been carried out by the witness. In this case, Dr Fromer had never examined the deceased. She was not, therefore, able to express any opinion based upon her own observations as to his medical condition or as to the cause of any disability from which he had suffered. But she did not purport to do so. She addressed herself to the matter of cause by reference to the content of the file she had read, and which was available to the Tribunal, and her understanding of the nature of coronary heart disease. I see no difficulty about a medical witness expressing a view as to causation of death based not upon personal examination of the deceased but upon an assumption as to the correctness of specified facts. Where the witness feels able, upon that material, to express a view then the principle recognised in Holman and Hardy applies. In a case where the evidence is neither contested nor inherently unreasonable or incredible a tribunal of fact is not, as a matter of law, entitled to decline to act upon it.

3. In a decision given since the argument in this matter, Repatriation Commission v. Perrot (29 May, 1984, not yet reported) Kirby J considered Holman/Hardy in the context of a submission by the Repatriation Commission that the Tribunal had erred in law in failing to give adequate reasons for its decision. In that case the Commission contended that the only medical evidence before the Tribunal was that there was no connection between the war service of the respondent's husband and the cancer from which he died and that the Holman/Hardy principle should have compelled a finding favourable to the Commission.

1. Kirby J rejected that conclusion. He did not doubt that the principle applied to proceedings in the Tribunal but he pointed out that it did not go far enough. The certificate in that case indicated the view of the (unidentified) medical practitioner that there was no causal relationship between the war service and the cancer. It did not, aetiology being unknown, exclude the possibility of such a relationship.

2. Mr Milne, QC, for the respondent in the present case, put an argument along similar lines. He did not contest the application of the Holman/Hardy principle to Dr Fromer's evidence but he argued that the Tribunal should be understood merely to have said that it did not regard Dr Fromer's evidence as negating, beyond reasonable doubt, the necessary causal relationship.

3. The reasoning of the Tribunal is cryptically expressed. It is not very clear just what was meant by the statement that the "medical officers' opinions contain a series of unexplained assertions". This dismissive statement appears unfair; the officers were, after all, asked to report their opinions and in Dr. Fromer's case she did support her view by reference to published material. On one interpretation the sentence is a rejection of everything the officers have said - even opinions within the expertise of the medical officers and based upon assumed facts gleaned from the file such as the relationship between hypertension and the deceased's heart disease (Dr Fromer) and the non-relationship between malaria and coronary disorders (Dr Perkins). Upon that interpretation the Tribunal would have offended the Holman/Hardy principle and erred in law.

4. However, I bear in mind the undesirability of a pedantic approach to the Tribunal's reasons. In Lennell v Repatriation Commmission noted (1982) 4 ALN No. 170 at p. 17 of their joint judgement Northrop and Sheppard JJ said:-
   
   

"A court exercising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decisions even if the court feels that the tribunal's language may have a degree of looseness. Certainly it ought not to indulge in an exercise which over-zealously picks the tribunal up in the way it has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply".

See also per Sheppard J in Repatriation Commission v. Bugg noted (1983) 5 ALN No. 264 at p 24 pf the judgement.

1. Adopting that approach, and considering the passage in context, I have come to the conclusion that Mr Milne's submission ought to be adopted. In the preceding paragraph of its reasons the Tribunal had referred to the onus and standard of proof. It went on to express the view that "there is nothing before it which would enable it to be satisfied". Then follows, apparently in amplification of this conclusion, the sentence about the medical officers' opinions. I think that the sentence should be read merely as saying that the medical officers' opinions do not bridge the gap. Dr. Fromer does not negative the possibility of a causal relationship. She does not purport to do so. Very properly, she limits herself to an opinion based upon the material in the file. It is consistent with that opinion that there are causative facts unknown to Dr Fromer.

2. The difficulty about the use by the Commission in this context of the Holman/Hardy principle is the standard of proof which s.107VH(2) requires. The Holman/Hardy principle requires acceptance by the tribunal of fact, subject to the relevant qualifications, of the expert opinion as expressed. It will be a rare case indeed in which a medical practitioner will be prepared to say, in relation to a disease of unknown aetiology, that there is no possibility of a causal connection. Acceptance of an opinion that there is no evidence of a causal connection, or that a causal connection is unlikely, is not enough to negative the claim beyond reasonable doubt.

3. Mr Burbidge's third submission was that the Tribunal erred in law in holding that the Repatriation Commission bore the onus of satisfying the Tribunal beyond reasonable doubt that all of the possible relationships between war service and death had been excluded. He points to the Tribunal's statement that the Act "requires the Commission to satisfy the Tribunal" and its reference to "the onus upon the Commission". He complains of two matters: first, the indication that the Tribunal placed an evidentiary onus on the Commission and, secondly, that it perceived its function as being to consider the material advanced by the Commission "where in truth its obligation is to retry the question itself on the material before it plus any other material it need call". He contends that this is to treat an appeal to the Tribunal as being adversarial proceedings whereas they are properly to be considered as investigatory in nature.

4. There is, I think, little doubt that the Tribunal did act upon the basis that the Commission bore an onus to satisfy it beyond reasonable doubt, which onus being not discharged the respondent's claim must be upheld.

5. As to the first complaint, I see no error in law in speaking of an onus resting upon the Commission. Disproof at the requisite standard, beyond reasonable doubt, may emerge from evidence from any source, including evidence called by the Tribunal itself, but the position remains that the Commission bears the burden of an order if, at the end of the day, the evidence is insufficient to negative the claim. I note that in Law, in the High Court, Murphy J at p. 639 spoke of the present legislation establishing "the standard of proof by the Commonwealth or its agents as proof beyond reasonable doubt". Aitken J, at p. 643, said "in relation to appeals that meant in substance that the onus of proof was placed on the Commission".

6. The second matter is more substantial. In a case where there is no affirmative evidence to establish the claim but where the Tribunal reaches the conclusion that the evidence is insufficient to exclude the claim is there an obligation upon the Tribunal to have the parties (in practical terms, the Commission) seek out and call further evidence?
   

7. Toohey J has emphasised that the consideration of a
   claim by a Board or by the Commission is an investigative rather than an adversarial process: see Repatriation Commission v Compton (20 February, 1984, not yet reported). Sheppard J has referred to the power of the Tribunal in s.107VZ of the Act to require further evidence. (Bugg, judgement p.25). In two judgements delivered on 30 March, 1984, Repatriation Commission v Williams and Repatriation Commision v Campbell (neither yet reported) Fitzgerald J held that, in the circumstances of those cases, the Tribunal had erred in law in failing to insist upon the provision of further material and he remitted the matters accordingly.

8. In Williams (p.5) His Honour made specific reference to a situation 'where the medical evidence is deficient and could be improved'. I do not doubt that cases will arise in which it is the duty of the Tribunal consciously to address itself to the desirability of exercising its powers under s.107VZ and in which failure to do so will constitute an error of law. But I do not understand Fitzgerald J to have suggested any general rule that whenever there is no affirmative evidence on causation and the medical evidence is insufficient to negative causation beyond reasonable doubt then the Tribunal must call for fresh material under s.107VZ. Such a rule would add consideraby to administrative costs and to the delays experienced by applicants, probably with only marginal benefits in terms of decision making. In the vast majority of cases, one may reasonably assume, the Commision will have obtained whatever information is available to it. Unless there is some specific material to be obtained, or lead available, which is likely significantly to assist in resolving the problem then it would seem an unwarranted step to further adjourn the matter. A fortiori, in such a case it seems to me incorrect for this Court to say that the Tribunal erred in failing to exercise a discretion to require further material and to remit the matter for this purpose.

9. In this case no suggestion was put to the Tribunal that it should exercise its powers under s.107VZ, notwithstanding the considerable opportunity which the Commission had to further consider the matter. Even before me, no suggestion was made as to any specific material or lead which might help to resolve uncertainty. Looking at the matter for myself, I have wondered whether the records of Dr Richardson would cast additional light on the question of causation but there is nothing before me to suggest either that the records are available or that, if available, they would take the matter any further. In these circumstances I am not prepared to say that the Tribunal fell into error in failing to address itself to the desirability of having these records obtained or otherwise exercising its powers under s.107VZ.

10. The appeal should be dismissed with costs.