Stares, Jean Margaret v Repatriation Commission
[1995] FCA 515
•24 JULY 1995
CATCHWORDS
Defence and War - Ex-servicemen (Veterans) - Pensions allowances and other benefits - Qualification for benefits - Connexion with war or defence service - Evidentiary onus - Reasonable or real hypothesis - What constitutes.
Veterans' Entitlement Act 1986 - s.120(3)
Byrnes v. Repatriation Commission (1993) 177 C.L.R. 564
Bushell v. Repatriation Commission (1992) 175 C.L.R. 408
JEAN MARGARET STARES v. REPATRIATION COMMISSION
VG403 of 1993
Jenkinson J.
Melbourne
24 July, 1995
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG403 of 1993
GENERAL DIVISION )
BETWEEN: JEAN MARGARET STARES
Appellant
AND: REPATRIATION COMMISSION
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 24 July, 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be allowed.
The decision of the Administrative Appeals Tribunal dated 23 August 1993 be set aside.
The matter, except in so far as it concerns the content of the report dated 10 February 1992 by Dr. C.C.J. Minty, be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
The parties be at liberty to adduce further evidence before the Administrative Appeals Tribunal.
The applicant's costs of the appeal (including reserved costs) be paid by the respondent.
(Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY ) No. VG403 of 1993
GENERAL DIVISION )
On appeal from The Veterans' Affairs Division of the Administrative Appeals Tribunal constituted by Commodore Gibbs, AM, RAN, (Retd) Senior Member, Mr. A. Argent and Professor R. W. Webster (Members)
BETWEEN: JEAN MARGARET STARES
Appellant
AND: REPATRIATION COMMISSION
Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 24 July, 1995
REASONS FOR JUDGMENT
Appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the Repatriation Commission that had been affirmed by the Veterans' Review Board.
Cecil John Stares claimed a pension under Part II of the Veterans' Entitlement Act 1986 in respect of bowel cancer. The Commission determined that his adeno-carcinoma of the rectum was not a war-caused injury or disease within s.9 of the Act. He thereafter died of the disease. The applicant, who is Mr. Stares' widow, was approved by the Commission under s.126 to take such action in respect of the claim as Mr. Stares could have taken if he had not died. She applied for review of the Commission's decision by the Veterans' Review Board and later for review by the Administrative Appeals Tribunal of that decision as affirmed by the Board.
Paragraph 9(1)(b) of the Act provides:
"Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
........ ........ ........ ........ ........ .......
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;"
Mr. Stares was born on 25 September 1918. He rendered continuous full-time service in the Military Forces of the Commonwealth from 18 December 1941 until 3 January 1946 and for the purposes of the Act is to be taken to have been rendering "eligible war service" during that period : s.7(1)(b). Part of that service was rendered outside Australia, from February 1943 to August 1944 in New Guinea and from February 1945 to December 1945 in New Britain. For the purposes of the Act he is to be taken to have been rendering operational service during those two periods. Sub-sections (1) and (3) of s.120 of the Act provide:
(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."
Upon review the Tribunal is required to comply with those legislative directions.
Two hypotheses were proposed by Mr. De Marchi, who appeared for the applicant both before the Tribunal and on the hearing of this appeal, as raised by the material before the Tribunal, as reasonable, and as connecting the disease of adeno-carcinoma with the circumstances of the particular operational service rendered by Mr. Stares. In respect of each hypothesis the Tribunal was of the opinion specified in sub-section 120(3) and reached the state of satisfaction
specified in sub-section 120(1). On appeal several errors of law were said to have vitiated the Tribunal's reasons.
The Tribunal found that Mr. Stares did not drink alcoholic beverages before he commenced military service in December 1941. He married the applicant in 1976. She had known him since about 1956, but until 1975 met him only once or twice a year. From 1975 they met regularly. After they were married she first became aware that Mr. Stares was habitually drinking between one and two dozen 750 millilitre bottles of beer per week as well as port. In and after 1984 his drinking of port could be described as heavy. The Tribunal appears to have accepted that account of Mr. Stares' consumption of alcohol. The Tribunal accepted authoritative medical opinion "that people who consume alcohol, particularly beer, are at an increased risk of developing rectal cancer, and that this association is likely to be causal." One of the two hypotheses proposed as reasonable and as connecting Mr. Stares' cancer with the circumstances of the particular service rendered by him was that Mr. Stares commenced to drink alcohol during his period of war service and that the mental stress occasioned by his combat activities during operational service was a cause of his forming during his period of war service, and of his perseverance thereafter, in the habit of substantial alcohol consumption.
The only evidentiary material as to the time when Mr. Stares began to drink alcohol was a statement signed by his aunt in June 1993, when she was in her eightieth year. The statement was:
"I knew Cecil Stares before he went to the war & as far as I can remember he didn't drink alcohol then but he did after he came back. He was so different."
The hypothesis was propounded in evidence by David Alexander Sime, a psychiatrist with extensive experience in the British Army and with the experience of having made psychiatric assessment of "somewhere around 40 to 50 veterans" in this country since 1977. While Dr. Sime conceded that the lack of information about Mr. Stares' consumption of alcohol before 1976 and the lack of information as to whether there had been a cause or causes of Mr. Stares' alcohol consumption in and after 1976, other than the stress of combat on operational service, made it difficult to confirm the hypothesis, but he adhered to the opinion that the probability was that stress caused by combat had contributed to cause the formation of, and perseverance in, the habit. There was persuasive evidence, and the Tribunal found, "that the nature of [Mr. Stares'] service in New Guinea as an infantryman was stressful". (There is nothing in the Tribunal's reasons or the material before it to suggest that the reference to service in New Guinea was intended to exclude the service in New Britain.)
The Tribunal's conclusions are stated in paragraphs 34-40 of its reasons. Some of those paragraphs should be set out:
"Opinion
34. As we have indicated, section 120(3) of the Act provides that the Repatriation Commission (and therefore the Tribunal upon review), shall be satisfied beyond reasonable doubt, that there is no sufficient ground for determining that the late Mr. Stares' disease was war-caused or that his death was war-caused, if after consideration of the whole of the material before it, the Tribunal is of the opinion that such material does not raise a reasonable hypothesis connecting the disease or death with the circumstances of the particular service rendered by him.
35. We are of the opinion that the material before us does not raise a reasonable hypothesis in terms of Bushell's case connecting the relevant disease or the late Mr. Stares' death with the circumstances of the particular service rendered by him."
Paragraph 36 is concerned with the other hypothesis which had been proposed. The Tribunal's reasons conclude:
"37. As to the submission concerning the consumption of alcohol, while we note the opinion of Dr. Sime concerning stress and while we accept that Mr. Stares did not drink prior to his Army service, there is however no evidence that he consumed alcohol while on service. This is so, even though the statement of Mr. Stares' aunt (paragraph 28) may be treated as implying otherwise. But even if we were to find that Mr. Stares' consumption of alcohol did commence while he was on service, there is no evidence upon which we could find that his post service consumption, including the level of consumption, arose out of or was in any way attributable to the circumstances of his particular service, including the element of stress.
38. Thus while there is an accepted relationship between the consumption of alcohol, particularly beer, and the subsequent development of cancer of the rectum, we are of the opinion that in the case of Mr. Stares the material before us does not raise a reasonable hypothesis connecting his development of that particular disease and his death, with the circumstances of the particular service rendered by him.
39. As required by section 120(3) of the Act, we are therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr. Stares' adeno-carcinoma of the rectum and death were war-caused in terms of sections 8 and 9 of the Act.
40. The decision under review will be affirmed."
The statement that "there is no evidence that he consumed alcohol while on service" is correct. If it be assumed that the Tribunal declined, and committed no error of law in declining, to draw an inference that Mr. Stares consumed alcohol on service, the statement indicates that the Tribunal failed to recognise that in some cases "the hypothesis may assume the occurrence or existence of a `fact'". See Byrnes v. Repatriation Commission (1993) 177 C.L.R. 564 at 570. (Byrnes' Case had not been decided when the decision of the Tribunal was published.) Such an assumption, which Dr. Sime made, could surely not, in the circumstances of this case, make the hypothesis unreasonable.
The statement that "there is no evidence upon which we could find that his post service consumption, including the level of consumption, arose out or was in any way attributable to the circumstances of his particular service, including the element of stress"indicates, in my opinion, that the Tribunal failed to recognise that in determining whether it was of the opinion specified in sub-sec. 120(3) the task is not to consider whether the evidence before it would support a finding that the hypothesis proposed actually happened. As Gummow J. observed in Repatriation Commission v. Nicholson (unreported; No. NG442 of 1995; judgment 17 February 1995):
"It will be noted that sub-s. 120 (3) refers not to consideration of `evidence', but of `the whole of the material'. The formation of the opinion referred to in sub-s. 120 (3) is not determined by application of the technical rules of evidence applicable to civil or criminal litigation; cf Mahon v Air New Zealand Ltd [1984] 1 A.C. 807 at 820-1."
As the High Court observed in Byrnes' Case 177 C.L.R. at 571):
"The position may be summarized 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."
Here there was nothing in the material before the Tribunal to suggest that the hypothesis was contrary to known scientific facts. The task the Tribunal faced was to determine whether the material pointed to "some fact or facts (`the raised facts') which support the hypothesis and .... if the raised facts are true" (see Bushell v. Repatriation Commission (1992) 175 C.L.R. 408 at 414), whether the hypothesis is "obviously fanciful or untenable", or, in the words of the Tribunal which Mason C.J., Deane and McHugh J. adopted in Bushell's Case (175 C.L.R. at 532), whether the hypothesis is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". Upon the view the Tribunal can be seen from its reasons to have taken of the material before it, its task would appear to be to determine whether the proved fact of stressful combat coupled with the assumed fact of the commencement of drinking alcohol during military service and the proved facts concerning the consumption of alcohol after discharge support the hypothesis that the stress of combat contributed to cause the proved consumption of alcohol in and after 1976 and, if so, whether that hypothesis is obviously fanciful or untenable. However, the process of considering whether it has formed the opinion specified in sub-sec. 120 (3) is for the Tribunal, not this court. My conclusion is that that the reasons of the Tribunal show that it did not form that opinion in accordance with law, as that law has been expounded in Byrnes' Case, in respect of Dr. Sime's hypothesis.
The other hypothesis proposed was that some of the nitrites present in the bully beef which Mr. Stares consumed as part of his rations during his operational service, and perhaps at other times during his war service, combined chemically, in his stomach and in lower parts of his alimentary tract, with amines (formed as a result of bacterial breakdown of protein) to form nitrosamines, which contributed to cause the cancer.
The Tribunal's conclusion concerning that hypothesis was stated in paragraphs 36 and 39 of its reasons. Paragraph 39 has been set out. Paragraph 36 reads:
"As to the submission concerning the consumption of nitrites, we respectrully adopt and apply the Tribunal's observation in Re Lucas and Repatriation Commission (Decision No. 8331 : 22 October 1992 - Mrs. R.A. Balmford, Senior Member (as she then was) presiding). That statement was as follows:
`23.The Tribunal is aware, from evidence given in other matters, that Dr Minty's expertise, gained over many years of practice, is as a treating radiation oncologist. The causation of cancers, especially of the many cancers whose causes are as yet unknown, does not, in our view, necessarily fall within the ambit of his expertise to the extent that he can be regarded as "eminent in the relevant field of knowledge" to use the words of the High Court in Bushell.'
Having regard for the opinion expressed by Professor Kune in his report, and having regard for the written and oral evidence presented by Professor Bennett, we do not find Dr. Minty's hypothesis to be reasonable, indeed we find it to be fanciful and without support in the facts. There is no evidence to link the ingestion of bully beef by the late Mr. Stares during his relevant service with the subsequent development of a rectal carcinoma, some 40 years later."
In Re Lucas and Repatriation Commission Dr Minty had advanced, as the Tribunal's reasons for decision in that case show, in respect of a malignant brain tumor a similar hypothesis to that which was contained in a report concerning Mr. Stares' bowel cancer. Professor R. W. Webster had been a member of the Tribunal in that case, as he was in Mr. Stares' case. But it should be inferred that the other two members were able to "adopt and apply" the observation quoted because they had themselves acquired in other cases the information about Dr. Minty which enabled the assessment of Dr. Minty's expertise to be made which is expressed in the passage quoted from Re Lucas and Repatriation Commission.
The observation was of limited relevance to the task the Tribunal was required to undertake, but the making of the observation does not in my opinion show any error of law.
Professor Kune, to whose report the Tribunal referred, was undoubtedly eminent in the relevant field of knowledge. The passage in the report to which reference was intended - and which the Tribunal had set out in para. 24 of its reasons - is in these terms:
"His service diet of bully beef and biscuits would be regarded as a high risk diet, however, it is most unlikely that he was on this diet for any length of time and furthermore, this diet was separated from the diagnosis of his rectal cancer by some 40 years, and this length of time would be regarded as too long for this diet to have had any measurable effect on the subsequent development of his rectal cancer."
Professor Bennett was also eminent in the relevant field of knowledge and he had reviewed the literature on carcinogenesis of large bowel carcinomas. He had examined the report of a study of nitrosamines in cultured human tissue and in mice to which Dr. Minty had referred in a report which formed part of the material before the Tribunal, and he gave substantial oral evidence before the Tribunal under informed cross-examination. (Dr. Minty did not give oral evidence.) Professor Bennet shared the opinion expressed by Professor Kune and he gave other detailed reasons for the opinion he expressed that the hypothesis was fanciful. As was pointed out in Bushell's Case (175 C.L.R. at 415) the Tribunal, in performing the function required by sub-sec. 120(3), is bound to have regard to the medical or scientific material which is opposed to the material which supports the hypothesis, for the purpose of examining the validity of the reasoning which supports the hypothesis. Dr. Minty's report consisted of less than a page of typing. Having carefully considered the other medical reports and the oral evidence of Professor Bennett, I can find no error of law which vitiates the opinion formed by the Tribunal under s.120(3) concerning the second hypothesis. The reference to "evidence" in the last sentence of paragraph 36 of the Tribunal's reasons, unlike the references to "evidence" in paragraph 37, does not lead me to conclude that there was error, having regard to the context in which the reference occurs.
Paragraph 33 of the Tribunal's reasons reads:
"Section 119(1) of the Act requires that in making a decision in relation to a claim or application the Repatriation Commission, and thus the Tribunal in these proceedings, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effect of the passage of time on the availability of witnesses. Having regard for these provisions and accepting the statement made by the late Mr. Stares' aunt (paragraph 28 supra), we find that Mr. Stares did not drink prior to entering the Army. We further accept and find that the nature of his service in New Guinea as an infantryman was stressful."
Section 119 in part provides that "[i]n considering, hearing or determining, and in making a decision in relation to ... a claim" for a pension under Part II [of the Act] the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
Counsel for the applicant su bmitted that, although the Tribunal had applied paragraph 119(1)(h)(i) in ascertaining the existence of the facts specified in paragraph 33 of its reasons - which facts he submitted, with some justification, the evidence before the Tribunal established - no recourse was had to that paragraph when the Tribunal was considering whether Mr. Stares had between the end of his operational service and 1976 been drinking substantial quantities of alcohol and experiencing continuing effects of his stressful war time experiences. In that respect the Tribunal had erred in law, it was submitted.
There are in my opinion two answers to the submission. The failure of the Tribunal to refer to paragraph 119(1)(h)(i) elsewhere in its reasons does not show that the Tribunal was failing to apply the paragraph. And evidence was not put before the Tribunal to show why no person acquainted with Mr. Stares between 1946 and 1976, except his widow and his aunt, had provided the Tribunal with evidentiary material about those facts. There was evidence that in his widow's presence he had been very reticent about his wartime experiences, and evidence by her that he had in and after 1976 been "a secret drinker". But that hardly established, or even strongly suggested, the unavailability of witnesses in respect
of the whole of those 30 years. I find no error of law in relation to s.119.
My conclusion is that the appeal should be allowed, the decision of the Tribunal set aside and the matter, except in so far as it concerns the content of the report dated 10th February 1992 by Dr. C. C. J. Minty, remitted to the Tribunal to be heard and determined according to law. I will order that the parties be at liberty to adduce further evidence. There will be an order that the applicant's costs of the appeal be paid by the respondent.
I certify this and the 14 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.
Associate
Dated: 24 July, 1995
Counsel for the Appellant : Mr. D. De Marchi
Counsel for the Respondent : Mr. N. Green
Solicitors for the Appellant : De Marchi & Associates
Solicitors for the Respondent : Australian Government Solicitor
Date of Hearing : 28 February, 1995
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