Shelton, Jessie Helen v The Repatriation Commission
[1998] FCA 1132
•24 AUGUST 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 305 of 1998
BETWEEN:
JESSIE HELEN SHELTON
APPLICANTAND:
THE REPATRIATION COMMISSION
Respondent
JUDGE:
EMMETT J
DATE:
24 AUGUST 1998
PLACE:
SYDNEY
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
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 305 of 1998
BETWEEN:
JESSIE HELEN SHELTON
ApplicantAND:
THE REPATRIATION COMMISSION
Respondent
JUDGE:
EMMETT J
DATE:
24 AUGUST 1998
PLACE:
SYDNEY
EX TEMPORE REASONS FOR JUDGMENT
HIS HONOUR: Jessie Helen Shelton (“the Applicant”) is the widow of William Shelton (“the Veteran”) who died on 29 July 1995. The Veteran was born on 13 November 1921 and served in the Australian Regular Army from 29 December 1941 to 13 May 1946. It is common ground that he rendered operational service within the meaning of the Veterans Entitlements Act 1986 (Cth) (“the Act”).
The Applicant made an application for benefits under the Act. On 6 September 1995, a delegate of the Repatriation Commission decided that the death of the Veteran was not causally related to his war service. That decision was reviewed and on 22 March 1996 the Veterans Review Board decided to affirm the decision under review such that the Commission’s decision remained unchanged. The Applicant sought review of that decision by the Administrative Appeals Tribunal and on 14 March 1998 the Tribunal affirmed the decision under review. The Applicant now appeals to this Court pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
The issue before the Tribunal was whether the Veteran’s death from myocardia infarction and ischaemic heart disease was war-caused. The determination of that issue involved the application of section 120 and 120A of the Act. Those sections relevantly provide as follows:
120(1)Where a claim … for a pension in respect of the … death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the …death of the veteran was war-caused, …, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
……………………………………………………
(3)In applying subsection (1) … 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;
if the Commission … is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … death with the circumstances of the particular service rendered by the person.
……………………………………………...
120A(3)For the purposes of subsection 120(3), a hypothesis connecting 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 determined under subsection 196B(2) or (11)
……………………………………………
that upholds the hypothesis.
The Tribunal, in its reasons, concluded that, assuming all of the facts raised by the Applicant to be true, the hypothesis propounded on her behalf satisfies the requirements of section 120(3).
The Tribunal concluded therefore that:
…as a reasonable hypothesis had been raised, s 120(1) of the Act must be applied, and the applicant's claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
The way in which section 120 operates has created difficulties on many occasions. Section 120A was enacted in order to eliminate some of the disputation which arose concerning the operation of section 120(3). The following observations of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 at 416 are apposite to the task which befalls a decision maker under these provisions:
[O]nce the material raises such a hypothesis, the operation of s. 120(3) is spent and the case falls to be determined in accordance with s. 120(1).
………………………………
But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s. 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, “beyond reasonable doubt, that there is no sufficient ground for making the determination” even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury, etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.
Subsequently, the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 made the following observations (at 571):
The position may be summarised 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.
Some of those observations tend to suggest a chronological procedure whereas it is clear that what is being referred to is a process of reasoning, being a process of reasoning which is engaged in after all the evidence is before the decision maker.
Section 120A qualified the process as described to the extent there is no longer a question of determining whether a hypothesis is contrary to known scientific facts or is fanciful or untenable. Rather, the effect of section 120A(3) is to rely on Statements of Principles published in accordance with the Act.
The reasoning process in which a decision maker is to engage was described by the Full Court of this Court in Repatriation Commission v Deledio (1998) 27 AAR 144 at 159 in the following terms:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises the application must fail.
2.If the material does raise such a hypothesis the tribunal must then ascertain whether there is in force an SOP determined by the authority under section 196B(2) or (11) of the Act. If no such SOP is in force the hypothesis will be taken not to be reasonable and in consequence the application must fail.
3.If an SOP is in force the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say is consistent with the template to be found in the SOP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist and be related to the person's service as required by section 196B(2)(d) and (e)
If the hypothesis does contain those factors it could neither be said to be contrary to proved or known scientific facts nor otherwise fanciful. If the hypothesis fails to fit within the template it will be deemed not to be reasonable and the claim will fail.
4.The tribunal must then proceed to consider under section 121(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused or in the case of a claim for incapacity that the incapacity did not arise from a war-caused injury. If not so satisfied the claim must succeed. If the tribunal is so satisfied the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing no question of onus of proof of the application of any presumption will be involved.
The relevant hypothesis in the present case might be formulated as follows:
the war service of the Veteran caused stress; the stress gave rise to the consumption of alcohol;
the alcohol consumption constituted substance abuse;
that substance abuse led to hypertension;
that hypertension led to heart disease which was the cause of death.
The Tribunal found, as I have said, that a reasonable hypothesis had been raised. Accordingly, the first three steps of the process described by the Full Court were satisfied. The final step therefore was for the Tribunal to consider the matters that are raised by section 120(1).
The Statement of Principles which the Tribunal found upheld that hypothesis is the Statement of Principles concerning hypertension, namely instrument No 83 of 1995. Paragraph (1) of that Statement contains the following preamble:
Being of the view that there is sound medical scientific evidence that indicates that hypertension and death from hypertension can be related to operational service rendered by veterans, … the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans Entitlement Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of that service, are:
There then follow some 24 paragraphs setting out different factors. The appeal has been conducted on the basis that the only relevant factor was paragraph (b) which is in the following terms:
suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension;
Clause 4 of the Statement of Principles contains definitions including a definition of “psycho-active substance abuse”. That is defined in the following terms:
the maladaptive pattern of use as derived from DSM-1V attracting ICD code 303 and 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
The reference to DSM4 is a reference to a diagnostic and statistical manual of mental disorders published by the American Psychiatric Association which relevantly contains the following material:
SUBSTANCE ABUSE - FEATURES
The essential feature of the Substance Abuse is a maladaptive pattern of substance use manifested by recurrent and significant adverse consequences related to the repeated use of substances. There may be repeated failure to fulfil major role obligations, repeated use in situations in which it is physically hazardous, multiple legal problems, and recurrent social and interpersonal problems.
The Tribunal summarised the evidence of the Applicant and the evidence of a number of medical practitioners whose reports were before the Tribunal. The Tribunal then considered the standard of proof to be applied and referred to the Statement of Principles in question. The Tribunal then considered the question of hypertension because I have said the Tribunal found that the hypothesis, which I have briefly recounted above, satisfied the second step required under section 120(3).
The Tribunal then embarked on the question raised by section 120(1). The Tribunal referred to reports which it had from Dr Miller, a consultant physician who had interviewed the Applicant. The Tribunal also had before it a statement made by the Veteran on 6 January 1989 prior to his death where he stated that he became a heavy drinker because of the stress of his service and the availability of alcohol. He stated that he continued to drink up until 1970 when he was advised by his doctor to reduce his consumption and that since then he had found that “a drink now and again helps him to relax”.
The Tribunal then went on with its reasoning process under section 120(1) as follows:
49. The Tribunal heard evidence from the applicant that she observed no change in the veteran’s alcohol consumption, that he still drank wine and whisky and possibly also beer. The applicant was unable to tell the Tribunal exactly how much her husband drank after work before he arrived home as she was not an observer to this drinking. The Tribunal finds that in weighing this evidence, the applicant did reduce his alcohol consumption. The Tribunal was satisfied, based on the information the veteran had provided to medical practitioners and to the respondent in his claim for disability pension, that he had reduced his alcohol in the 1970s, but at the very latest, based on the concession of the applicant, there is evidence to suggest that he had reduced his consumption of alcohol by 1985.
50. The Tribunal also finds that there is no evidence to suggest that the veteran's drinking was at a level which he could not control. The Tribunal is satisfied from the evidence of Professor Mattick that the veteran did not suffer from psychoactive substance abuse. The Tribunal gives weight to the evidence of Professor Mattick. The Tribunal was satisfied that he is an expert in the field of determining alcohol dependence and based his conclusions on the view of the applicant's drinking pattern which is consistent with the evidence before the Tribunal.
51. The Tribunal heard evidence from the applicant that the veteran never took time off work because of drinking, was never violent, and never had a serious car accident, nor was he ever charged with a driving offence. She also gave evidence that he had a good relationship with his children. On the evidence of the applicant and based on the expert evidence of Professor Mattick the Tribunal is satisfied that one of the key facts of the raised hypothesis (namely, psycho-active substance abuse) has been disproved beyond reasonable doubt. The Tribunal is satisfied that none of the criteria for substance abuse as published in the DSM-IV or as truncated in the Statements of Principles that apply. The Tribunal is satisfied that the veteran did not have a maladaptive pattern of alcohol use indicated by continued use of alcohol despite knowledge of persistent or recurrent social, occupational, psychological or physical problems caused or exacerbated by alcohol consumption. In support of this, the Tribunal is satisfied on the evidence of the applicant that the veteran did not suffer such recurrent problems and the Tribunal also finds that the veteran was able to reduce his alcohol consumption when instructed to do so. The Tribunal is also satisfied that there is no evidence to establish that the veteran consumed alcohol when use would be physically hazardous. The Tribunal therefore finds that while there is evidence of a history of alcohol consumption by the veteran, there is no evidence that he exhibited psycho-active substance abuse. The Tribunal has applied the definition of psycho-active substance abuse as contained in DSM-IV as Statement of Principles Number 83 of 1995 states that its definition of this condition is derived from DSM-IV.
Two broad criticisms of that reasoning process are made on behalf of the Applicant. Before formulating those criticisms however, I should set out the questions of law which are raised in the notice of appeal. It seems to me that the questions, as formulated, do not necessarily correspond precisely with the way in which the matter was argued. The questions are set out in the supplementary notice of appeal as follows:
(a)Whether the Tribunal erred in applying Section 120(1) of the Act in coming to the conclusion that the hypothesis upon which the Applicant relied had been disproved beyond reasonable doubt by accepting the evidence of one expert as against the evidence of another.
(b)Whether the Tribunal erred in law in its interpretation of Section 120A(4) of the Act in holding that the Tribunal must take into account a Statement of Principle made after the time of the lodgement of an application for pension where, at the time of the application for pension, the Repatriation Medical Authority had neither determined a Statement of Principle or declared it does not propose to make such a statement.
(c)Whether the Tribunal erred in applying Section 120A in coming to the conclusion that the hypothesis upon which the Applicant relied had to be supported by more than one Statement of Principle.
(d)Whether the Tribunal erred in determining that the raised material upon which the Applicant relied did not satisfy the factors contained in the relevant Statements of Principles.
The questions were articulated in the course of the hearing as follows: first on proper analysis of the Tribunal's reasoning the Tribunal applied a wrong standard of proof in finding that the Veteran reduced his alcohol consumption in the 1970s. Secondly, that the definition of psycho-active substance abuse requires continued use but the Tribunal's finding was that, even if there were a reduction in use, there was nevertheless continued use. Therefore, the definition was satisfied irrespective of the level of continued use.
I shall deal with each of those contentions separately.
Standard of proof
The contention was that, on proper consideration of the Tribunal's reasoning, the Tribunal did not decide the question of whether or not the Veteran reduced the level of his alcohol consumption beyond reasonable doubt but decided the question only on the balance of probabilities. That contention is based on two matters as I understand it. First, the Tribunal said that it was satisfied that the Veteran had reduced his alcohol consumption in the 1970s but, at the very least, based on the concession of the Applicant, there is evidence to suggest that he had reduced his consumption of alcohol by 1985. It was suggested that this indicates a measure of doubt on the part of the Tribunal as to whether the Veteran had in fact reduced his alcohol consumption in the 1970s.
Secondly, reliance is placed on the passage in the reasons where the Tribunal refers to the fact that it “gives weight” to the evidence of Professor Mattick and that "based on his conclusions on the view of the Applicant's drinking pattern which is consistent with the evidence before the Tribunal". The contention was that, in expressing the matter in that way, the Tribunal was doing no more than balancing the evidence of Professor Mattick against the other evidence and that in order to determine the question beyond reasonable doubt the Tribunal should have said expressly that it did not accept the evidence of the other medical practitioners.
I do not read either of the passages in the way contended for by the Applicant. The Tribunal began its reasoning process with the proposition in paragraph 47:
that the applicant's claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
Thus at the outset the Tribunal said that it was proposing to decide the matter on the basis of the standard referred to in section 120(1).
The Tribunal’s conclusion is also expressed in terms of it being satisfied that one of the key facts of the raised hypothesis had been disproved beyond reasonable doubt. In those circumstances, I consider that the passages should be read in a manner differently from that contended for on behalf of the Applicant.
First, the Tribunal had before it cogent evidence from which it could be concluded that the Veteran had in fact reduced his alcohol consumption by the 1970s, including a statement made by the Veteran himself. The only evidence to the contrary was that of the Applicant who said that she observed no change in his alcohol consumption. However, the Tribunal observed that the Applicant was unable to express any knowledge of the matter because she was not an observer to his drinking after work before he arrived home.
In saying that, “at the very least”, there is evidence to suggest that the Veteran had reduced his consumption of alcohol by 1985, the Tribunal was not, in my view, casting doubt on the conclusion which it had already expressed, namely that it was satisfied that he had reduced his alcohol consumption in the 1970s. The Tribunal was certainly expressing its conclusion beyond reasonable doubt that there was no evidence to suggest that the Veteran's drinking was at a level which he could not control. The essence of the inquiry on which the Tribunal was embarking was whether it was possible to conclude that the Veteran continued to use the relevant substance, namely continued to consume alcohol, despite knowledge of having a persistent or recurrent problem that might be caused or be exacerbated by the use of the substance. That was the critical factor and that was the conclusion the Tribunal said that it had reached beyond reasonable doubt.
Secondly, the reference to weighing the evidence of Professor Mattick is no more than a statement of the process which must be involved in any fact finding where there is some conflict as to the evidence. It must be remembered, however, that the medical evidence was not relevant to the question of whether or not there was continued use or recurrent use within the meaning of the term “psycho-active substance abuse” as defined in the Statement of Principles. Whether there was continued use is a matter of pure fact and does not depend upon any expert medical evidence. I do not consider that the Tribunal was doing anything more in the passage relied on by the Applicant than saying that the conclusion which it had reached on that question was consistent with the conclusion that Professor Mattick had reached.
It was contended on behalf of the Applicant that the Tribunal had simply adopted Professor Mattick's view. I read the passage in question as no more than a statement that the Tribunal had regard to the evidence of Professor Mattick concerning what constituted psycho-active substance abuse by way of explaining the terms used in the definition. The Tribunal gave weight to Professor Mattick's evidence in that sense but that statement does not, it seems to me, detract from the unequivocal conclusion expressed by the Tribunal that it was satisfied that the existence of psycho‑active substance abuse had been disproved beyond reasonable doubt.
Reliance was also placed in this regard by the Applicant on paragraph (b) of the definition. At one stage in her oral evidence the Applicant said as follows:
And you would have wine with your dinner?‑‑‑Yes, we used to have wine, cask wine or just ordinary wine. It wasn’t real expensive but that’s what we used to have, it was what he liked. Even up until he died. The night before he died he still had his glass of wine because he said to me, he said, “It relaxes me”. and that’s why he had it. I said, “You know you really shouldn’t be drinking this stuff”. He said, it does me good, I like it. It relaxes me”. That's what he said up until the night he died.
When did he first say it relaxed him?‑‑‑He always said it did and he used - he drove our car. I did eventually get a licence and I said, “Bill, you really shouldn’t be drinking and driving”. And that was before we had all this drink drive business and eventually I got my licence and he could drink, if he wanted to and I would drive, but I said, “You shouldn’t be driving when you're drinking”. And he said, - he said, “It makes me more alert, I drive better when I have a drink”.
It was contended on behalf of the Applicant that the Tribunal’s finding that the Tribunal was satisfied that there is no evidence to establish that the Veteran consumed alcohol when use would be physically hazardous ignores the Applicant's evidence that he drove a motor vehicle whilst affected by alcohol.
The passage which I have set out above does not appear to me to be capable of supporting a conclusion that at any relevant time the Applicant drove a motor vehicle whilst affected by alcohol. The clear evidence of the Applicant is that after the Applicant obtained her driving licence the Veteran could drink if he wanted to and she would drive. It may well be that before that time, whenever it was, the Applicant had occasionally or perhaps regularly driven a motor vehicle whilst affected by alcohol. That, however, is a far cry from recurrent use of alcohol when it is physically hazardous, such as driving while intoxicated.
The evidence before the Tribunal, in my opinion, was clearly capable of supporting a conclusion beyond reasonable doubt that the Applicant had reduced his alcohol consumption in the 1970s when advised to do so by his medical adviser and that he did not, on any recurrent basis, drive when under the influence of alcohol. Accordingly I do not consider that the first ground as articulated in the course of the hearing has been made out.
Psycho-active substance abuse
The second ground concerns the proper construction of the definition of “psycho-active substance abuse”. It is contended on behalf of the Applicant that the fact that the Veteran could or did reduce his alcohol intake is not a relevant factor in considering whether the Veteran suffered psycho-active substance abuse. The definition refers to continued use despite knowledge of having a problem that is caused or exacerbated by use of the substance.
The argument is that notwithstanding that the Veteran reduced his alcohol consumption, it is unarguable that he continued to use alcohol and that so far as the definition is concerned, continued use is all that is relevant, irrespective of its significance. That does not seem to me to be a reasonable construction of the paragraph. It is concerned with continued use at a level where a persistent or recurrent problem is caused or exacerbated by use of the substance at that level. It would follow from the Applicant’s argument that if a Veteran used a substance at a level which caused or exacerbated a problem but, without any difficulty, reduced the use to a level which was beneficial to the problem and helped to eliminate it, there would nevertheless be psycho-active substance abuse. That seems to me to be the logical consequence of the construction contended for and that, in my view, cannot be right.
I consider that it was relevant for the Tribunal to consider whether the Veteran was able to reduce his consumption of alcohol to a level of use which no longer caused or exacerbated any problem such as hypertension or high blood pressure which, on the evidence, he was advised to do. In the circumstances, I do not consider that the second ground is made out.
Questions of law
The first question of law said to have been raised by the appeal is whether, having found that there was a reasonable hypothesis, the Tribunal erred in, , failing to apply section 120(1) by not considering whether the hypothesis had been disproved beyond reasonable doubt. That formulation appears to me to involve a misconception of the process which is involved. It is not a question of whether a hypothesis has been disproved but whether a fact which is necessary for the establishment of a hypothesis has been disproved. It may be that that is all that the question was intended to raise. In other words, it is the first question with which I have already dealt.
The second question of law said to be raised by the appeal is whether the Tribunal erred in making findings of fact and preferring the evidence of some witnesses to others. That appears to be a formulation of the first question as well.
The third question is whether the Tribunal erred in that, after finding that there was a reasonable hypothesis, it determined the matter on what it considered to be the weight of the evidence. Once again, that seems to be a different way of formulating the same question, namely, whether or not the Tribunal did in fact reach its conclusion beyond reasonable doubt or whether it reached its conclusion on the balance of probabilities.
For the reasons which I have indicated, I do not consider that there is any basis for reaching a conclusion that the Tribunal did otherwise than what it said in its reasons it was doing, that is, determining whether it was satisfied beyond reasonable doubt that one of the steps in the establishment of the hypothesis had been disproved, namely, the existence of psycho-active substance abuse.
For those reasons it seems to me that the appeal will fail. Accordingly, I order that the appeal be dismissed with costs.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett
Associate:
Dated: 24 August 1998
Counsel for the Applicant: A.T. McInnes QC with A.L. Hill Solicitor for the Applicant: Kenneth Harrison Counsel for the Respondent: P.J. Hanks Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 August 1998 Date of Judgment: 24 August 1998
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