Repatriation Commission v Webb

[1998] FCA 1411

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Veterans’ affairs – war-caused death – whether veteran’s histiocytosis was war-caused – whether evidence pointed to a reasonable hypothesis that death resulted from smoking caused by war service – whether Administrative Appeals Tribunal (“AAT”) failed to take into account relevant considerations or took into account irrelevant considerations – whether proper for AAT to “evaluate” evidence.

Veterans’ Entitlements Act 1986 (Cth) s 8, subs 120(1) and (3)

Bushell v Repatriation Commission (1992) 175 CLR 408, applied
Byrnes v Repatriation Commission (1993) 177 CLR 564, applied

REPATRIATION COMMISSION- v -

GLORIA WEBB

VG 627 OF 1997

TAMBERLIN, FINN AND MARSHALL JJ
MELBOURNE
5 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 627 of 1997

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION APPELLANT
AND:	GLORIA WEBB RESPONDENT
JUDGES:	TAMBERLIN, FINN & MARSHALL JJ
DATE OF ORDER:	5 NOVEMBER 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The matter be remitted for determination to a differently constituted AAT in accordance with these reasons.

1. The appellant pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 627 of 1997

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	REPATRIATION COMMISSION APPELLANT
AND:	GLORIA WEBB RESPONDENT

JUDGES:	TAMBERLIN, FINN & MARSHALL JJ
DATE:	5 NOVEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The Court

This is an appeal from a judgment of Finkelstein J pursuant to which his Honour set aside a decision of the Administrative Appeals Tribunal (“the AAT”) that the death of Mr Webb, the husband of the respondent, was not a war-caused death within the meaning of that term as defined in s 8 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

Factual Background

Mr Webb served with the Australian Army in New Guinea between October 1944 and June 1945.  He became ill in late 1984. In early February 1985 Mr Webb was admitted to Fairfield Hospital.  The diagnosis given at the hospital was imprecise. He continued to suffer from lethargy and fever.  Consequently he was admitted to the Royal Melbourne Hospital where further tests were carried out.  Those tests were inconclusive and more tests were required.  Mr Webb died on 17 May 1985 without the cause of his death being established.  The post-mortem report referred to a “histiocyctic proliferative disorder of uncertain aetiology”.  Slides of biopsies extracted from the veteran’s spleen, liver and lymph nodes were sent by the Royal Melbourne Hospital to the pathology departments of Stanford University Hospital and the University of Southhampton in the United States and the United Kingdom respectively.

Reports received from those overseas hospitals tended to suggest that malignancy was not the most likely diagnosis. Dr Fairley at the Royal Melbourne Hospital held a contrary view.

In 1992 the respondent, Mrs Webb, made a claim for a pension under the Act. She contended that the veteran died as a result of histiocytosis, (non-Hodgkin’s lymphoma) (“NHL”) which may have been caused by the veteran commencing to smoke whilst in New Guinea. A delegate of the Commission refused the claim. An application for review of that decision was unsuccessful before the Veterans’ Review Board. A further unsuccessful application to review the Board’s decision was made to the AAT. The AAT rejected Mrs Webb’s contention that the hypothesis that Mr Webb’s death was caused by NHL and that such lymphoma was caused by smoking.

Reasoning of the primary judge

The primary judge held that the AAT had made mistakes about the state of the evidence.  The first of these mistakes related to certain evidence given by Dr Parkin who gave evidence on behalf of Mrs Webb.  The AAT stated in its decision that Dr Parkin had abandoned his claim that there was a possible connection between smoking and NHL.  Instead the AAT said Dr Parkin had advanced a more general hypothesis that an ex-serviceman is more susceptible to NHL than the rest of the community.  The primary judge agreed that Dr Parkin had advanced the more general hypothesis but concluded that the AAT was wrong to consider that Dr Parkin had abandoned his primary hypothesis.

The second error which the primary judge identified as having been made by the AAT concerned the finding that the hypothesis connecting smoking with NHL “lacks support in the medical studies”.  His Honour found that Professor Fox, who gave evidence before the AAT, had referred to studies which did show such an association.

The third legal error identified by the primary judge was the statement by the AAT in its reasons for decision identifying its task as evaluating or weighing the evidence of Dr Parkin against what appeared “in the medical studies”.  The primary judge described this as “an impermissible task”.

The primary judge further held that assuming the AAT was not in error in evaluating Dr Parkin’s evidence against the medical studies, it was in error in not evaluating such evidence against all relevant evidence including that of two witnesses, Professor Fox and Dr Fairley, which supported Dr Parkin’s approach.

Finally, the primary judge held that the AAT had erred in law in approaching the hypothesis contended for by Mrs Webb with a pre-disposition to its weakness as a result of there being opposition to the hypothesis.

The hypothesis

The appeal calls for a consideration of the question whether the evidence pointed to a reasonable hypothesis that the late husband of the appellant died from NHL, a form of cancer, which resulted from smoking caused by his war service.

The relevant provisions of the Act provide as follows:

“8. (1)  Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”

Sub-sections 120(1) and (3), so far as relevant provide:

“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:

…

(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.” (Emphasis added)

The present case

The important requirement in the present case is contained in s 120(3) of the Act. It relates to the formation of an opinion by the Commission after consideration of the whole of the evidence, whether a reasonable hypothesis has been raised linking the death with the circumstances of the war-service rendered.

The overall hypothesis in the present case consists of three parts; namely that:

• the war service of the veteran caused him to smoke;

• the veteran’s smoking caused him to contract NHL, which in general terms is a form of cancerous malignancy;

• NHL was a cause of the veteran’s death.

The AAT accepted that the first part of the hypothesis was made out; namely, that the operational war service caused the deceased to take up smoking.  Accordingly, the remaining questions were whether the second and third parts of the overall hypothesis were raised by the material before it.

In considering the operation of s 120(3), it is necessary to bear in mind the principles set out by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408. In that case at 414-416, it is said in the joint judgment of Mason CJ, Deane and McHugh JJ that:

“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. … So, in determining whether a hypothesis is reasonable … it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service.  Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.

…

However, a hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature.’  Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.’

… the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge.  Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.  As we have earlier pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another.  This does not mean, however, that …the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim.  Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran.  But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.

If the material does raise a reasonable hypothesis … the Commission must determine that the injury, disease or death was war caused ‘unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination’.
…

The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient reason for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis.” (Emphasis added)

The High Court again considered the operation of s 120(3) of the Act in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. In a joint judgment, Mason CJ, Gaudron and McHugh JJ summarised the operation of the provision as follows:

“(1) First sub-s.(3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service?  The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.  If the hypothesis is not reasonable, the claim fails.  Proof of facts is not in issue at this point.  (2) If a reasonable hypothesis is established, sub-s.(1) of s 120 is applied.  The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”  

The submission for the appellant is that his Honour erred in relation to several matters and that, therefore, his orders should be set aside.  We now turn to a consideration of the matters raised in the reasons of the primary judge.

1. Abandonment - Dr Parkin – nexus between smoking and NHL

His Honour said that the AAT erred in finding that Dr Parkin had abandoned his claim that there was a possible connection between smoking and NHL.

The AAT statement appears in par 48 of the decision and reads:

“48.Although Dr Parkin is an eminent haematologist he did not claim to be  an expert epidemiologist.  When he was asked to analyse the studies in order to explain the foundation for his hypothesis that there is a connection between smoking and non-Hodgkin’s lymphoma, he first claimed a lack of expertise to do so and then abandoned the hypothesis which was based on a connection between smoking and non-Hodgkin’s lymphoma.” (Emphasis added)

Examination of the evidence referred to by the Commission indicated that in the course of his evidence, Dr Parkin confirmed his view that there is a reasonable hypothesis of a connection between smoking and NHL.  While it is correct to say that he made concessions, particularly in relation to his expertise, it is not correct to say that he abandoned his opinion as to the existence of a reasonable hypothesis.  Indeed, the reasons of his Honour specifically refer to the last questions asked of Dr Parkin in re-examination, where the doctor expressly re-affirmed his opinion as to the existence of a reasonable hypothesis and said that a reasonable person could not say otherwise. This is an affirmation in the strongest terms.  Although the decision-maker had some reservations as to the general reliability of the evidence of Dr Parkin, it was erroneous to determine the question on the basis that the hypothesis had been abandoned by him.  The notion of “abandonment” indicates a total surrender of an opinion and this is not what occurred.  Although Dr Parkin raised a “new” hypothesis, he did not discard his earlier opinion.

Counsel for the Commission submitted that the reference to “abandonment” was intended to convey that the decision-maker considered that there was no substance in the evidence of Dr Parkin in relation to the hypothesis and that Dr Parkin acknowledged this by shifting his ground to a new and different hypothesis.  However, this is not what Dr Parkin said nor is it what is conveyed on a fair reading of his evidence.  Further, in his submissions, appeal counsel for the Commission conceded that Mr Parkin did not “in terms” abandon his hypothesis.

The decision-maker’s wrong conclusion that the hypothesis had been abandoned is not insignificant or simply a matter of infelicitous expression. It is important in this case because the decision-maker’s statement to this effect is immediately followed by his conclusion which reads:

“I am satisfied that the hypothesis connecting smoking with non-Hodgkin’s lymphoma is not reasonable as it lacks support in the medical studies comprising the material before the Tribunal.”

This is a critical finding which is based, at least in part, on the erroneous finding that Dr Parkin had abandoned the hypothesis.

In light of the above, we are satisfied that no error was made by his Honour in relation to this finding.  On this ground alone the matter should be remitted to the AAT for reconsideration.

1. Association between smoking and NHL – Dr Fox

His Honour found that the AAT erred in not having regard to the evidence of Professor Fox as to the existence of studies which supported an association between smoking and NHL.  His Honour said that the issue was not the correctness of Professor Fox’s view but whether the AAT was wrong when it said that there were no medical studies to support the connection between smoking and NHL.

The evidence indicates that the relevant report, which is that of Williams and Horm was raised in oral evidence and that Dr Fox agreed it was impossible to imagine at a “biological level” that data in the relevant report was meaningful.  This conclusion was accepted by the AAT.

However, Professor Fox referred to another report, relating to a religious group of non-smokers, which showed a significantly lesser incidence of NHL when compared with the general incidence of NHL in the community at large.  Professor Fox, however, conceded that it was not possible to conclude anything from this study.

In the light of this evidence, we do not consider that the AAT erred in stating that the hypothesis connecting smoking with NHL lacked support in the medical studies in the material before the AAT.  However, as the High Court indicated in Bushell’s case lack of support in the profession is not decisive on the question of whether a reasonable hypothesis existed.

1. Evaluate or weigh

His Honour found that the AAT erred because it misconceived its task as being to “evaluate” or “weigh” the evidence of Dr Parkin against what appeared in the medical studies.  His Honour pointed out that the task of the AAT did not involve any onus and that it was required to consider the whole of the evidence and decide whether the facts pointed to a reasonable hypothesis without any onus on either party.  His Honour considered that in weighing or evaluating the evidence, the AAT in fact embarked on the impermissible task of determining whether a certain medical or scientific line of opinion was to be preferred to another.

In our view, the AAT reasons indicate that it did not simply confine its task to an evaluation or weighing of medical opinions as against each other in order to select the preferable expert or make any determination as to the correct version of competing views.  The task was approached on the basis of its consideration of the material before it.  Its reasons range over the medical and scientific material placed before it.  Any examination of the material before the AAT necessarily involves having regard to conflicting medical opinions and, as pointed out in Bushell’s case, this is a proper exercise to be undertaken by the AAT in the performance of its task.  This must involve some degree of evaluating or weighing medical opinions in the light of all the material presented to the AAT.  We are not satisfied that any error of law has been shown as a consequence of referring to evaluating or weighing the evidence.

1. 4. Diagnosis of NHL and the evidence of Dr Fairley

The AAT reasons indicate that, in its view, the assumption that the deceased had NHL was part of the hypothesis in the matter.  The other part of the hypothesis was whether there was a connection between NHL and smoking.  The latter part was considered separately by the AAT after it had considered the diagnosis section of the hypothesis.

In relation to that part of the hypothesis which concerned the diagnosis of death arising from NHL, the approach taken by the AAT is set out in the following paragraph after referring to the joint judgment in Byrnes case (supra) at 571, which is quoted above:

“40.     That passage indicates that the primary hypothesis relied on by Mr De Marchi cannot be categorised as not reasonable simply because it assumes that the disease which caused histiocytic infiltration of the reticuloendothelial system and resulted in Mr Webb’s death, was a type of non-Hodgkin’s lymphoma.  To borrow the words of the High Court the histiocytic infiltration is the ‘factual foundation’ for that part of the hypothesis.  If Mr De Marchi had been able to prove that Mr Webb had a non-Hodgkin’s lymphoma that part of the hypothesis would have been proved.  The assumption that Mr Webb had a non-Hodgkin’s lymphoma is part of the hypothesis in this matter.  It has not been proved or disproved.  The fact that the expert pathologists thought the diagnosis unlikely to be one of malignancy is not sufficient to disprove the hypothesis, or, on its own, to render it not reasonable.  It does however make it more tenuous than it would be if the diagnosis of the disease was known.” (Emphasis added)

There was evidence before the AAT from Dr Fairley, a treating specialist, to the effect that malignancy was the most likely diagnosis and that a visiting American, to whom the deceased’s case was presented, agreed with this view notwithstanding the pathologists’ insistence that this was not so.  The AAT found that the expert pathologists’ opinion, namely, that the diagnosis was unlikely to be one of malignancy, was not sufficient to render the hypothesis unreasonable.  Nevertheless, it went on to conclude that the evidence did not “point to” a diagnosis of NHL.  These two conclusions appear to be in conflict.  The conflict is not explained or reconciled in the reasoning.

In Bushell’s case, the High Court pointed out (at 415) that the case must be rare where it can be said that a hypothesis, based on raised facts, is unreasonable when it is put forward by a medical practitioner, who is eminent in the relevant field of knowledge.  In the present case, the AAT, in the penultimate paragraph of its decision, concluded that the present case was such a rare case.

The evidence of Dr Fairley must have been discounted by the AAT, to the extent that the diagnosis hypothesis was considered too tenuous to be reasonable, yet no grounds are given for this ultimate conclusion on the question of diagnosis.  It is difficult to see how it can be said, on the one hand, that the expert evidence of pathologists did not render the hypothesis of death through NHL unreasonable and yet conclude, on the other hand, that the connection was too tenuous.  This unexplained basis for discarding the diagnosis section of the hypothesis supports a conclusion that, in reaching its final conclusion on the diagnosis question, the AAT failed to take into account a relevant matter; namely, the evidence of Dr Fairley on this point.

1. The overall hypothesis

The statements in par 40 of the AAT reasons quoted above also disclose an error in approach by the AAT in its consideration of the overall hypothesis.

As mentioned earlier the overall hypothesis was considered by the AAT to have three parts; namely, smoking caused by war service; smoking causing NHL, and NHL being the cause of death. Because it is common ground that the smoking was caused by war service, it is only the two remaining parts of the hypothesis that require consideration.  The AAT accepted that the expert pathologists’ view that a malignancy diagnosis as to the cause of death was unlikely, was not sufficient to render the overall hypothesis unreasonable.  Its conclusion, however, indicates that the conflicting evidence was considered to cast doubt on the overall hypothesis to such an extent that it had the effect of rendering the overall hypothesis unreasonable.

In our view, this is not the approach required by the authorities.  The proper approach is to ask, in relation to each sequential part of the hypothesis, whether the facts point to that part of the hypothesis being reasonable. Once it is established that a relevant part of the overall hypothesis is reasonable, then any doubts as to the reasonableness of that part of the hypothesis must, for the purposes of s 120(3), be put aside, and the next part of the hypothesis considered. It is not appropriate to carry over or accumulate doubts in relation to the reasonableness of one part of the hypothesis and apply these doubts to a consideration of other parts of the hypothesis or to the hypothesis as a whole. In the present case, each sequence in the overall hypothesis raises a discrete question. What must be answered is the question whether the hypothesis pointed to by each sequential part which makes up the overall hypothesis is reasonable. If this is so then the overall hypothesis may be considered reasonable. The AAT did not do this.

We, therefore, conclude that the AAT adopted an incorrect approach when considering the reasonableness of the overall hypothesis.

Orders

We order that the appeal be dismissed and the matter remitted for determination to a differently constituted AAT in accordance with these reasons.  The Repatriation Commission is to pay the costs of the respondent.

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

Associate:

Dated:             5 November 1998

Counsel for the Appellant:	Mr P Hanks
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr DeMarchi
Solicitor for the Respondent:	DeMarchi and Associates
Date of Hearing:	2 September 1998
Date of Judgment:	5 November 1998