Talma and Repatriation Commission
[2003] AATA 866
•4 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 866
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/457
VETERANS' APPEALS DIVISION ) Re PAUL TALMA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Dr D. Weerasooriya, MemberDate4 September 2003
PlacePerth
Decision The Tribunal affirms the decision under review.
…........(sgd J Dwyer).....…….
Senior Member
VETERANS’ ENTITLEMENTS – disability pension – whether pneumonia defence-caused – reasonable satisfaction standard of proof – whether Tribunal reasonably satisfied that pneumonia caused by “Nocardia asteroides” organism – whether any evidence that it could result from “Nocardia asteroides” in the air in the vicinity of the hut where applicant worked during service – decision affirmed
ISSUES OF CAUSATION – whether applicant could succeed if evidence established that relevant circumstances – namely presence of “Nocardia asteroides” organism was detected in the air in the vicinity of hut where applicant worked even if it could also be found elsewhere
INQUISITORIAL PROCEDURES – lengthy but unsuccessful attempts by Tribunal, with assistance of respondent'’ representative, to obtain evidence to assist applicant in establishing his claim ‑–more appropriate that further steps be taken by applicant’s representative
Veterans' Entitlements Act 1986 ss 70(5) and (7), 120(4)
Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Tuite (1993) 17 AAR 158
Bushell v Repatriation Commission (1992) 109 ALR 30REASONS FOR DECISION
4 September 2003 Mrs Joan Dwyer, Senior Member
Dr D. Weerasooriya, MemberINTRODUCTION
1. In this application Mr Talma seeks to have his lung conditions resulting from pneumonia, which he suffered during his Army service, recognised as defence caused under the Veterans' Entitlements Act 1986 ("the Act").
2. His conditions resulting from pneumonia have been diagnosed by Dr A. James, a respiratory physician in his report (R1) as:
Pleural disease
Post Infectious Scarring
Focal Fibrosis
or Post Inflammatory Scarring.
3. The hearing was complicated partly because there was unsatisfactory evidence on some issues and partly because the parties had not given adequate consideration to the legal issues or to the basis for a finding that an injury or disease is defence‑caused.
4. Mr Talma was not legally represented. Mr Cooper, a lay advocate appeared for him. Mr Ponnuthurai appeared for the Repatriation Commission ("the Commission"). Mr Talma gave evidence. It is the Tribunal's view that this is a matter where Mr Talma would have benefited if his case had been prepared by a lawyer. The Senior Member, who comes from Melbourne, raised this matter at the commencement of the hearing, trans p3:
[N]o criticism of Mr Cooper at all, [but] when we do Veterans' matters in Melbourne we almost always have lawyers, not that I'm saying I prefer lawyers, but they then have the Legal Aid funding to bring the doctors to hearings and I'm told that is not common here, is that right or ‑ ‑ ‑
MR COOPER: Legal aid is in very short supply, Ma'am, and we've got quite a number of practising lay advocates. It is a member's choice.
5. Mr Ponnuthurai then explained that the Commission in Western Australia calls and pays for the relevant medical specialists to give evidence.. In this matter he took considerable steps to seek appropriate medical evidence, as requested by the Tribunal at the conclusion of the hearing. We are grateful to him for his efforts, however, we regret to say that we have concluded that on the evidence before us, we can do nothing but affirm the decision under review. We do so, with regret, because we are conscious of the unsatisfactory nature of the medical evidence. But, even bearing in mind the Tribunal's responsibilities as an investigative or inquisitorial Tribunal, we have decided that we cannot prolong the information gathering process any longer. It has already lasted for more than one year since the hearing. Nor can we ignore the expert opinion of Dr A. James set out in his report of 31 January 2003 (R3), even though it is brief and uninformative.
6. We do however suggest that Mr Talma seek a further medical opinion from a different respiratory physician, and then, if it is supportive, lodge a further claim. We hope that our discussion of the legal issues in these reasons may assist in having the claim favourably considered.
FORMAL MATTERS
7. This application seeks review of a decision of the Commission made 31 March 2000 and affirmed by the Veterans’ Review Board (“the VRB”) on 27 September 2001, refusing a claim for “chest/lung, problems” to be accepted as defence‑caused under the Act. The VRB (T28 pp220-225) affirmed the decision under review on the ground that it was reasonably satisfied that the material before it did not raise a connection between the applicant’s lung problems and defence service as required by the Act.
8. At the hearing the Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also an additional report dated 3 May 2002 from Dr James, a respiratory physician (R1). The Tribunal obtained further material from the respondent after the hearing which it marked as follows:
(R2)Report of Dr Lloyd dated 7 July 1998 and clinical notes from Darwin Private Hospital and letter from Mr Ponnuthurai dated 17 September 2002.
(R3)Letter from Respondent to Dr James dated 13 January 2003 and reply from Dr James dated 31 January 2003.
BACKBROUND FACTS
9. Mr Talma enlisted in the Australian Regular Army at age 20 and rendered eligible "defence service" from 7 December 1972 to 6 December 1998. He was discharged medically unfit due to “recurrent injuries to both knees and low back and hearing”. The Final Medical Board report (T3 p131) does not refer to any current lung problems, but a Medical Board Examination (T3 p130) stated “Previous pneumonia, chest now clear clinically”.. Mr Talma said his chest condition was an ongoing problem.
10. There was no dispute about the background facts. They are set out in paragraph 4 of the respondent’s Statement of Facts and Contentions as follows:
4.3 On enlistment the Applicant denied suffering from bronchitis or pleurisy, coughing up of blood or tuberculosis. (T3/26) His chest and lungs were normal on clinical examination. (T3/27)
4.4 On 5 August 1983, the Applicant was referred to a chest physician. (T3/95) The referring doctor reported that the Applicant had suffered from "'flu" in June 1983. He had been hospitalised for 3 days in July in Bellingen District Hospital with chest pains. No records from that admission were available. He still had a cough with occasional sputum and was easily fatigued. The chest physician commented that the Applicant's presentation suggested mycoplasma or respiratory viral infection. The Applicant's wife and three members of his unit had experienced similar symptoms. The Applicant's chest x‑ray was reported to be normal. (T3/96)
4.5 On 23 October 1996, the Applicant was admitted to hospital with left lateral chest pain and a cough and high fever. (T3/52) The Applicant was treated with antibiotics and was found to have left lower lobe pneumonia. He later developed a parapneumonic effusion and empyema and required intercostal drainage. There was no evidence of active infection by legionella, mycoplasma, psittacosis or mellioid.
4.6 In November 1996, microbiological testing of the air conditioner in the Applicant's office was carried out. (T3/35‑38) The report indicated that the Applicant's lung infection was caused by Nocardia asteroides, an unusual bacterium. Nocardia organisms were not isolated from the air conditioner. Nocardia were found in the outside air and the microbiologist commented that the organism occurs naturally in the soil and is distributed worldwide. The majority of the human population develops immunity to it and infection is rare. The air conditioner may have been a source but there was no evidence to prove this.
4.7 On 11 April 2001, Dr Alan James, a respiratory physician, reported that no specific organism had been found to cause the Applicant's pneumonia. (T26/216) On 2 May 2001, Dr James reported that he was unable to relate the Applicant's pneumonia or subsequent disability to specific infection related to air conditioning. (T27/217) On 3 May 2002, Dr James opined that appropriate diagnostic labels for the Applicant's chest problems include pleural disease, post infectious scarring, focal fibrosis or post inflammatory scarring (emphasis added).
11. The respondent contended:
5.1 The Respondent says that this is a matter in which the standard of proof is reasonable satisfaction, which equates to the balance of probabilities. (Repatriation Commission v MJ Smith refers). There is no statement of principles in existence for any of the proposed diagnostic labels. The Respondent says that it is appropriate to refer to the Applicant’s current disorder as post inflammatory scarring of the lungs, which was used by the Repatriation Commission in an earlier decision.
5.2 The Respondent contends that, with the cause of the Applicant’s pneumonia and subsequent scarring being either unknown or due to an organism generally prevalent in the soil (but unable to be isolated in the air conditioner in his office), it cannot be said that the condition is more probably than not due to the particular circumstances of his defence service. The Applicant developed an opportunistic infection, which he would or could have developed at any time or in any employment, not something specifically related to his service or that would not have occurred but for his service..
12. The question for determination is whether Mr Talma’s current lung problems should be accepted as "defence caused" under the Act, so as to give rise to an entitlement to general rate pension and possibly also to intermediate or special rate pension. The Tribunal, as discussed in paragraph 16 of these reasons, does not accept the correctness of the respondent’s contentions in paragraph 5.2 above. Mr Talma, at the time of the hearing, had not succeeded in finding employment since his medical discharge in December 1998.
THE RELEVANT LEGISLATIVE PROVISIONS
13. Mr Talma seeks pension under s70(1)(b) and (d) of the Act. The definition of defence‑caused injury or disease is found in s70(5) and (7) of the Act which, so far as relevant, provide:
70 (5) For the purposes of this Act…an injury suffered by…a member [of the Forces] shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the … injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(c) …the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d)the injury or disease from which the member … has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service… rendered by the member, being service rendered after the member suffered that injury or contracted that disease; …
70 (7) Where, in the opinion of the Commission, the incapacity of a member of the Forces…was due…to a disease that would not have been contracted, but for his or her having rendered defence service…or but for changes in the member’s environment consequent upon his or her having rendered any such service:
…
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.
STANDARD OF PROOF
14. The relevant standard of proof is set out in s120(4) of the Act. It provides:
120(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
15. The meaning of that standard was explained by the Full Court of the Federal Court in Repatriation Commission v Smith (1987) 74 ALR 537 at pp 546‑547. Beaumont J, with whom Northrop J and Spender J agreed, said that the term “reasonable satisfaction” is intended to refer to the civil standard of proof. His Honour explained:
By contrast, s 120(4) speaks in terms of a reasonable satisfaction. This expression has a settled meaning, at least in a curial context. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J, dealing with the civil standard of persuasion, said (at 362): "… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ' reasonable satisfaction ' should not be produced by inexact proofs, indefinite testimony, or indirect inferences” (emphasis added).
…
Even if the tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation…
It follows, in my view, that the tribunal erred in adopting the Bishop test [a test of possibility rather than probability as applied in Repatriation Commission v Bishop (1983) 48 ALR 461 at 468] Instead, it should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.
THE ISSUES
16. The Tribunal stated during the hearing that it did not accept the respondent’s contention in paragraph 5.2 of the Respondent’s Statement of Facts and Contentions. The Tribunal expressed the view that if it accepted that Mr Talma’s pneumonia was “caused by Norcardia asteroides”, as stated in T22, p206, then it would be open to the Tribunal to find on the balance of probabilities that Mr Talma’s pneumonia was caused by his defence service, which required him to work in a building, the outside air in the vicinity of which showed the presence of Norcardia organism . The Tribunal suggested that it may not matter that the organism was not found in the indoor air. The following discussion took place (trans. p48):
MR PONNUTHURAI: But one would have to say then, what is it that makes that particular place, makes any concentration of it greater or his chances, given that he is one of these rare people who has that ---
MRS DWYER: Well, I don’t think one does. I don’t think that is the law on that issue. I think all one need do is show that he was exposed to it in that place. It wouldn’t matter if he might have been exposed to it somewhere else. Work took him to that place. If he had an exposure to something in that place which caused an illness to him, well then, it is service caused.
17. The Tribunal’s comments in that discussion are consistent with the views of the Full Court of the Federal Court as explained by Davies J in Repatriation Commission v Tuite (1993) 17 AAR 158 at p160:
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease (emphasis added).
The approach of Burchett and Einfeld JJ in Tuite was similar. They said at p163:
It is true that not everything which occurs while [a] man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. It was open to the Tribunal to find the circumstances persuasive. If, in the case of a particular person, one of the inevitable concomitants of war service is camp life, it must be open to the Tribunal to conclude that a consequence (in the sense explained in Repatriation Commission v Law (supra)) of camp life is a consequence of war service. In this case, the Tribunal has done so.
18. Applying the law as explained in Tuite to this matter, Mr Talma could succeed if the Tribunal were reasonably satisfied, as required by s.120(4) of the Act:
(i)that the pneumonia Mr Talma suffered in 1996 was caused by Norcardia asteroides;
(ii)that the Norcardia asteroides organism was found in the air outside the building where he worked as part of his Army Service in Darwin;
(iii)that pneumonia caused by Norcardia asteorides can be contracted from the outside air, if that air contains the Norcardia asteroides organism; and
(iv)that his current incapacity results from the pneumonia he suffered in 1996.
19. The difficulties the Tribunal faced in deciding the matter on that basis were:
(i)the applicant's statement of case relied only on the applicant's lung problem being a direct result of the 1983 episode of pneumonia, not the 1996 episode;
(ii)the applicant's representative had lodged no medical evidence linking either the 1983 or the 1996 episode of pneumonia to circumstances related to Mr Talma's service;
(iii)there was no medical evidence as to the cause of the 1983 episode of pneumonia;
(iv)although the report of Top End Biocheck Microbiology Monitoring Service (Top End Biocheck) (T10 pp163‑167) set out a history that the pneumonia in 1996 was "caused by Norcardia asteroides", there was no test result or hospital record confirming that diagnosis;
(v)in spite of that report of Top End Biocheck, Dr James, a respiratory physician, wrote in a report of 11 April 2001 (T26 pp 215‑216) as to the 1996 pneumonia:
No specific organism was found to be causing his pneumonia.
(vi)there was no medical or scientific evidence on which the Tribunal could have become "reasonably satisfied" that Mr Talma could have contracted the 1996 episode of pneumonia from "Norcardia asteroides" in the air outside the hut in which he worked as part of his duties during Army service in Darwin.
20. Further, the Tribunal would have been taking both parties by surprise had it decided to make its decision on the basis that Mr Talma's lung problems result from pneumonia caused by "Norcardia asteroides" in the air outside the hut in which Mr Talma worked in Darwin.
21. The Tribunal therefore decided to seek further information, which Mr Ponnuthurai agreed to obtain. The Tribunal expected that the further information would clarify the issues and be of assistance in establishing that the pneumonia was probably caused by "Norcardia asteroides", in the air in the vicinity of the hut where Mr Talma worked during his Army service in Darwin. Unfortunately, the evidence obtained by Mr Ponnuthurai, did not clarify the situation as had been expected.
THE EVIDENCE BEFORE THE TRIBUNAL
22. The evidence was that Mr Talma was admitted to hospital with pneumonia twice during his Army service. As to the second occasion, when he was admitted to Darwin Hospital in 1996, the report of Top End Biocheck dated 1 December 1996, stated (T10 p164):
The serviceman who became ill was hospitalised on 22 October 1996. The air conditioner was consequentially switched off on November 15, 1996, when it was learned that this serviceman had a serious lung infection caused by Nocardia asteroides, and unusual filamentous bacterium with properties akin to many sorts of fungi. (emphasis added)
23. The Tribunal asked Mr Ponnuthurai to endeavour to obtain the Darwin Hospital records and the basis for the statement that Mr Talma’s lung infection was caused by “Norcardia asteroides, and unusual filamentous bacterium with properties akin to many sorts of fungi”. As a result of the efforts made by Mr Ponnuthurai, the Tribunal received further material which it took into evidence R2 and R3 as set out in paragraph 8 of these reasons. However that information did not include any test results or reports confirming that it had been found that the pneumonia was caused by “Norcardia asteroides, and unusual filamentous bacterium with properties akin to many sorts of fungi”.
24. Mr Talma, in a claim form lodged on 15 September 2000 (T21 p198) stated as to his lung/chest problems:
I suffer from shortness of breath constantly in particular when it is cold. I am not able to walk more than 300 metres without stopping to catch my breath.
25. On 11 April 2001 Mr James, a respiratory physician, reported to Mr Talma’s local doctor as to Mr Talma’s problems of chest pain and shortness of breath. He wrote (T26 pp215-6):
Thank you for referring this 49 year old man for assessment of his chest pain and shortness of breath.
History
As you know Paul has been troubled by chest pain ever since an episode of pneumonia in 1983. This is characterised by left costal margin pain, which radiates from the anterior portion to the posterolateral region of his rib cage. It is exacerbated by taking a deep breath and is worse in cold weather. It comes and goes and can abate completely in warm weather. He rarely goes more than two weeks without pain and occasionally can be exquisitely tender over the chest wall.
He is short of breath when walking uphill, with others, at his own pace and even sometimes when sitting and talking. He occasionally has chest tightness associated with shortness of breath but denies any wheeze.
In 1983 he was diagnosed with viral pneumonitis. He was apparently admitted to hospital at that time. Since then he states that he has had chest discomfort, which became much worse after pneumonia, which was treated at Darwin Hospital in 1996. He spent 21 days in hospital and had a left lower lobe collapse with a left sided effusion, which required drainage. From reading the hospital notes he sounds like he had some complications of his drainage and possible sinus formation. I note that Legionella and Mycoplasma seriology were negative at that time and that he was treated with Erythromycin, Rocephin, Gentarnycin and Ceclor.
He remains concerned that his pneumonia was caused by contamination from his air conditioner and examination of this was undertaken at the time. This showed Bacillus cereus, Aspergillus fumigatus and Pseudomonas organisms in the air-conditioning space. Nocardia asteroides was found in an air-sampling device unrelated to the air-conditioning.
No specific organism was found to be causing his pneumonia. Following his episode of pneumonia his chest pain became worse and more persistent and has changed little since 1996 (emphasis added).
…
The Tribunal did not receive any evidence as to why Dr James did not refer to the Statement in the Top End Biocheck report that Mr Talma’s pneumonia in 1996 was caused by “Norcardia asteroides fungi”.
26. After receiving the results of lung function tests Dr James wrote a further report (T27 p217) stating:
These findings suggest loss of functioning lung as might been seen in focal fibrosis following pneumonia with collapse and subsequent scarring.
History
Paul has had an episode of severe pneumonia with left lower lobe collapse, left sided effusion and requirement for an endocostal drain.
Subsequently he has developed thickening at the left costophrenic angle consistent with scarring and there is measurable impairment of lung function consistent with loss of lung tissue most likely due to focal scarring.
Therefore he appears to have a severe episode of pneumonia, which has resulted in some destruction, and loss of lung tissue.
Tethering of the diaphragm under those circumstances may give rise to sensation of breathlessness and I am sure that this accounts for poor variable breathlessness which may sometimes even make him aware of his breathing when sitting and talking with others.
Paul’s other major problem is tenderness of the left chest wall and persisting chest pain. It is possible that this is due to neural injury at the time of his pneumonia and endocostal draining with persistent neuralgia.
I cannot relate his pneumonia or subsequent disability to specific infection related to air-conditioning.
It seems that Dr James was not asked for an opinion as to whether the pneumonia could be related to infection from the air outside the hut where Mr Talma worked.
27. Dr James, in a report of 3 May 2002 (R1), provided the diagnosis of Mr Talma's current condition as set out in paragraph 2 above, namely:
Pleural disease
Post Infectious Scarring
Focal Fibrosis
or Post Inflammatory Scarring.
28. Mr Talma said that he had had not had any chest or lung infections prior to his enlistment in the Army in July 1972 at age 20. Mr Talma described the first incident when he suffered pneumonia in late 1983, when he was hospitalised in Bellingen Hospital (trans. p8). He said:
We were on exercise up to Bellingen where we had to build bridges for the Bellingen Shire. I recall we were living in a big hall. I think it was the showgrounds. In a big hall at the showgrounds. Freezing cold. No heaters or anything like that. And I contracted pneumonia. I believe it was viral pneumonia. And I ended up in the Bellingen Hospital. And I can’t even remember how long I was in hospital. But they cleared me out of hospital, I think it was, 5 or 6 days, 4 days. I can’t remember how long I was there. And from there I was back into the scrub. Same buildings. Same cold. Until we finished the job and went back home.
29. There is no hospital record as to that admission in the material before the Tribunal. But there is clear documentation showing that Mr Talma suffered pneumonia when posted to Darwin in October 1996. He described the circumstances as follows (trans. p9):
I first recalled sitting in my desk and there was all powdery stuff on my desk, of which, when you touched the powdery stuff, it just falls apart. And I didn’t know what it was. Didn’t know where it came from. A few days later, sitting at the desk, working, with the sunlight, see all this dust coming over the top of me. Which, turned round to have a look and see where that dust came from. It was in actual fact from an air conditioner just above my head. Then I think it would have been, I think, about 10 days after that where I was taken to hospital. And I was diagnosed with pneumonia. And pre going to the hospital I got hold of my Corporal, James Collison, and I told him to have a look and see where it was coming from. And he said, "It is coming out of the air conditioner." So, I got him to clean the air conditioners so no-one else could get crook. Then it was in hospital. And I think I was in hospital for 20 days, which doctors were having a hard time trying to find out what I had. And couldn't get any better. And going through, they found that I had - my left lung collapsed. And that is when they kept me in hospital for a while. And eventually I was thrown into CT [CAT Scan] and had CT guided drainage put in through the back of my back.
30. Mr Talma said that although the records showed he had had some chest problems prior to 1983, they had become significantly worse after the attack of pneumonia in 1983. But he said that since the second pneumonia episode in 1996 he had been much worse. Mr Talma said that he goes to his doctor every six weeks, and continues to have problems with breathlessness and pain in his lung.
31. In answer to questions from the Tribunal, Mr Talma said the pain is always on the left hand side and that has been the case since 1983. He said he hyperventilates, and particularly if he goes outside in winter, he starts “sucking in the cold air”. He said he is always short of breath, even at rest, and that he is “flat out” going 500 metres walking without having to stop for shortness of breath.
32. Mr Talma said that the day he went into hospital in Darwin in 1996, he told people that he believed the air conditioning was a problem, because he had noticed dust coming from the air-conditioner overhead, about a week to ten days prior to having to go to hospital. He explained that there were three air‑conditioners in the cluster hut in which he had been working. He said he had asked his Corporal to clean all three of them, before he went to hospital. He said that he understood the air conditioners had all been cleaned prior to the tests, which are reported in the Top End Biocheck report (T10 pp 163‑164). He said as soon as he was in hospital he asked to have the air conditioners checked out, but he understood it was not done for some time. The report at T10 shows the testing was done on 22 November and Dr Selva‑Nayagam’s letter of 16 January 1997 (T8 p151) states that Mr Talma was admitted to hospital on 23 October 1996. Mr Talma said that, after his hospitalisation the air‑conditioners had been cleaned and scrubbed every two weeks, and as far as he knew that was still happening.
THE SEARCH FOR FURTHER EVIDENCE
33. As explained in paragraph 16 of these reasons, there was some discussion at the hearing as to the way in which Mr Talma’s case was put. Mr Ponnuthurai pointed out that although there was no dispute about the fact that there had been an incident which was probably a case of pneumonia in 1983, it was only after the 1996 incident that there were significant and severe changes in chest X-rays showing scarring and possible tethering of the diaphragm as well. The evidence was that Mr Talma had made a virtually complete recovery, apart from a little residual lassitude and some chest symptoms, after the 1983 pneumonia (T3 p91). In considering whether the 1996 episode of pneumonia was defence‑caused, the Tribunal said it would be assisted by further information. Mr Ponnuthurai agreed to assist the Tribunal by making further enquiries as discussed.
34. That approach on the part of the respondent is appropriate as explained by the High Court in Bushell v Repatriation Commission (1992) 109 ALR 30 at p43, where Brennan J, as he then was, said:
Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.
35. The matters as to which the Tribunal requested further evidence were summarised in a letter sent by the District Registrar to the parties on 12 September 2002. The District Registrar wrote:
I have been asked by Senior Member Dwyer to write to the parties about this matter. At the conclusion of the hearing Mr Ponnuthura agreed to assist the Tribunal by seeking further material to put before the Tribunal. The steps he agreed to take were:
(i)to contact “top end biocheck” about their report of 1 December 1996 (T22) and ask them the basis of the statement in the report (at p2) that “it was learned that this serviceman had a serious lung infection caused by Nocardia asteroides, and unusual filamentous bacterium with properties akin to many sorts of fungi” (emphasis added).
(ii)If “top end biocheck” has any written report or pathology test or minute about the infection being caused by Nocardia asteroides to obtain a copy.
(iii)to seek the Darwin Private Hospital file relating to Mr Talma’s admission there from 22 October 1996. If the hospital can not locate that file, enquiries could be made of Defence Force compensation claims.
(iv)to attempt to locate a copy of the report of Dr Lloyd of 7 July 1998 referred to in the letter from the Department of Defence (T3 p31).
(v)to put any new material before Dr James and seek a further report from him as to any connection between Mr Talma’s service and his pneumonia in 1996. In that regard the Tribunal would be assisted if Dr James were asked to read the “top end biocheck” report of 1 December 1996 and to respond to the following question:
“If it is accepted that Mr Talma’s pneumonia in October 1996 was caused by Nocardia asteroides, and if on testing in November 1996, the Nocardia species organism was found to be present in the outside air around the hut where he performed his Army duties is it probable that his pneumonia arose out of or was attributable to him working in the vicinity of that organism?
36. The report of Dr E. Lloyd referred to in sub‑paragraph (iv) above was located. Dr Lloyd made no reference to the statement in the report of Top End Biocheck that the pneumonia was found to be "caused by Norcardia asteorides”.He wrote that it was not probable that the episode of pneumonia was due to an organism spread by the air‑conditioner. Dr Lloyd was asked whether employment might have contributed to the contraction, aggravation or acceleration of the disease. He answered in the negative, but it does not seem from the report that he was specifically asked to consider whether Mr Talma may have contracted the pneumonia because of exposure to the organism "Norcardia asteorides" in the air in the vicinity of the hut where he worked in Darwin.
37. Mr Ponnuthurai, having received the Darwin Private Hospital file, and the report of Dr Lloyd requested by the Tribunal, sent that material to Dr James. He wrote a letter (R3), dated 13 January 2003, asking Dr James whether Mr Talma’s presentation and the cause of his pneumonia was in keeping with or typical of a Norcardia asteroides infection. He also asked Dr James the question set out in paragraph (v) of the Tribunal’s letter of 12 September 2002, as set out in paragraph 35 of these reasons namely:
“If it is accepted that Mr Talma’s pneumonia in October 1996 was caused by Nocardia asteroides, and if on testing in November 1996, the Nocardia species organism was found to be present in the outside air around the hut where he performed his Army duties is it probable that his pneumonia arose out of or was attributable to him working in the vicinity of that organism?
38. Dr James replied by letter dated 31 January 2003 (R3) as follows:
Thank you for your letter dated the 13th of January 2003. I have reviewed my own notes and correspondence and the documentation that you provided.
I note that Mr Talma suffered from a left basal bronchopneumonia, which was complicated by pelural effusion, which required drainage with an intercostal catheter. This has left him with an area of scarring and tethering of the left hemidiaphragm.
I note that sampling of the air in Mr Talma’s office near to and far away from the air conditioner and further sampling from outside the office was undertaken. Nocardia spores were found only in the outside air sample. No causative organism was found for Mr Talma’s pneumonia.
In reference to your specific questions:
Was Mr Talma’s presentation and the cause of his pneumonia in keeping with or typical of a Nocardia asteroides infection?
Nocardia infection is more often seen in immunocompromised patients, that is, patients with pre-existing disorders, which result in reduced immune function. The appearances in the lung may be nodular or even cavitate although may resemble airspace shadowing as seen in any case of pneumonia. The clinical course therefore was not typical of a Nocardia asteroides infection and would not, by itself, have given rise to suspicion that this was the cause of his infection.
If it is accepted that Mr Talma’s pneumonia in October 1996 was caused by Nocardia asteroides and if on testing in 1996 the Nocardia organism was found to be present in the outside air around the hut where he performed his army duties is it probable that his pneumonia arose out of or was of attributable to him working in the vicinity of that organism?
No. It is very improbable that this was the case (emphasis added).
39. The state of the evidence is unsatisfactory in two respects -
(i)Top End Biocheck reported on 1 December 1996 that the air-conditioner was switched off “when it was learned that this serviceman had a serious lung infection caused by Norcardia asteroides, and unusual filamentous bacterium with properties akin to many sorts of fungi,” but the investigations conducted by the respondent at the request of the Tribunal have not located the source of the information that Mr Talma had an infection caused by Norcardia asteroides. Further, both Dr Lloyd and Dr James wrote that the cause of Mr Talma's pneumonia in 1996 was unknown.
(ii)Dr James advised in his letter of 31 January 2003, that even if the pneumonia was caused by Norcardia asteroides, it was "very improbable" that it arose out of, or was attributable to, Mr Talma working in the vicinity of that organism. However, Dr James did not explain the basis of his opinion, nor did he offer any suggestion as to how Mr Talma might more probably have contracted pneumonia which was caused by Norcardia asteroides.
40. The Tribunal made one further attempt to obtain satisfactory evidence on which to make an informed decision in this matter. The Tribunal arranged for the District Registrar to again write to the parties seeking further information. On 16 June 2003 he wrote as follows:
The Tribunal has asked me to write to the parties again about this matter.
The Tribunal is conscious that this matter has dragged on for a long time and that Mr Ponnuthurai has already gone to a great deal of effort to help the Tribunal obtain relevant evidence.
However, the Tribunal feels it must seek further information. It is disappointed that the Darwin Private Hospital file did not provide the source of the advice to “top end biocheck” that Mr Talma’s serious lung infection was “caused by Nocardia asteroides, and unusual filamentous bacterium with properties akin to many sorts of fungi”.
It seems to the Tribunal that the information conveyed to “top end biocheck” must have been provided as a result of a pathology test, but the test does not seem to be on the Darwin Private Hospital file. That file does show that certain tests were sent out to the Royal Darwin Hospital and to PathCentre on 6 November 1996. The results do not appear to be on the file.
The Tribunal notes that Mr Ponnuthurai pointed out in his letter of 17 September 2002 that “top end biocheck” reported to Asset Services, 41 Bishop St. Winellie NT 0820. The Tribunal has decided to ask Mr Ponnuthurai to seek the relevant file from the Army Asset Services to see whether it contains the test result which formed the basis of the instructions to “top end biocheck”.
The Tribunal has asked me to point out further that it regards Dr James’ report of 31 January 2003 as unsatisfactory in its response to the Tribunal’s question whether, if the pneumonia was caused by Nocardia asteroides, it is probable that it arose out of or was attributable to Mr Talma working in the vicinity of that organism.
Dr James responded, “It is very improbable that this was the case.” He did not explain the basis of that opinion, nor did he offer any suggestion as to how Mr Talma might more probably have contracted pneumonia which was caused by Nocardia asteroides.
The Tribunal requests that Mr Ponnuthurai send it a copy of the information held by Asset Services if that information is available. It will then decide what further action is required in respect to Dr James’ report.
41. On Monday 18 August 2003, the Tribunal was advised that Mr Ponnuthurai's letter to Asset Services had been returned unclaimed and that he was seeking a further address.
42. As we said in the introduction to the reasons for decision we have decided that the process of the Tribunal seeking, with the assistance of Mr Ponnuthurai, to gather information to help Mr Talma establish his case cannot be indefinitely prolonged. Further, it is our opinion that the appropriate person to make such enquiries on Mr Talma's behalf would be his representative. He should seek the test results as to his pneumonia being "caused by Norcardia asteorides".. But even if those results cannot be obtained, the report of Top End Biocheck does provide evidence that could establish to a decision-maker'’ “reasonable satisfaction"” that Mr Talma’s pneumonia was caused by “Norcardia asteorides”. However there is no evidence that it could then have been contracted from the “Norcardia asteorides” organism found in the air outside the hut which Mr Talma worked. A report should be sought from a different respiratory physician as to whether or not it is probable that Mr Talma contracted pneumonia from the organism “Norcardia asteorides”, which was shown to be present in the air outside the hut where he was working at the time of his hospitalisation. He may need a legal representative to obtain the necessary funding and to write to the respiratory physician requesting such a report.
CONCLUSION
43. The issue before the Tribunal is whether there is any material on which the Tribunal can be reasonably satisfied that Mr Talma’s lung problems are defence‑caused. We find on the evidence that Mr Talma is now troubled by shortness of breath and left costal margin pain which is caused by scarring resulting, in particular, from his second episode of pneumonia during service in 1996, while stationed in Darwin (T26 p215). The question is therefore whether that pneumonia is defence-caused.
44. We cannot find on the evidence that Mr Talma’s pneumonia arose out of or was attributable to him working in the vicinity of Norcardia asteroides or of any other organism which played a causative role in the development of his pneumonia. We have borne in mind the comments of Brennan J in Bushell, as set out in paragraph 34 of these reasons. We wondered whether Dr James should be asked to explain his opinion as to it being “very improbable” that Mr Talma’s pneumonia, if it was caused by Norcardia asteroides, arose out of or was attributable to exposure in the vicinity of Mr Talma’s workplace. We have concluded that in the light of the peremptory way in which Dr James responded to the question asked of him in the letter referred to in paragraph 37 of these reasons, a further request to him would not be likely to provide material of assistance to the Tribunal.
45. We are conscious that further enquiries should be made and that further information may resolve this matter. But we have concluded that, in spite of Mr Ponnuthurai's efforts, he is not the appropriate person to conduct those further enquiries. Nor is this application the appropriate proceeding. We suggest that Mr Talma's representative should consider these reasons and that a further application should be lodged by Mr Talma, supported by appropriate medical or scientific evidence. It is the experience of the Senior Member that in Melbourne Legal Aid is usually available for such enquiries to be made, but maybe only when the matter is before the Tribunal.
46. The evidence before us now does not allow us to find that Mr Talma's lung conditions are defence caused. The decision under review will be affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mrs Joan Dwyer, Senior Member and
Dr. D Weerasooriya, MemberSigned: Grace Carney
Personal AssistantDate of Hearing 20 August 2002
Date of Decision 4 September 2003
Representative for Applicant Mr Cooper, Advocate
Departmental Representative Mr Ponnuthurai
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