The Repatriation Commission v Keenan, S.E

[1989] FCA 594

Re: THE REPATRIATION COMMISSION
And: STEPHEN EDWARD KEENAN
No. Qld. G51 of 1989
FED No. 594
Veterans' Affairs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Veterans' Affairs - pension - veteran first commenced smoking while in war service - whether the disease contracted was attributable to war service - discussion of causal test.

Veterans' Entitlements Act 1986, ss.7, 9(1)(b), 9(2), 13, 120

HEARING

BRISBANE

#DATE 29:9:1989

Counsel for the applicant: Mr P.R. Dutney

Solicitors for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr W.J. Thompson

Solicitors for the respondent: Petersen Cutler & Co.

ORDER

The appeal be allowed.

The orders of the Tribunal be set aside.

The matter be remitted to the Tribunal for further consideration.

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

JUDGE1

This is an appeal from the Administrative Appeals Tribunal in a repatriation matter. The Repatriation Commission determined on 13 March 1986 that a pension claim by the applicant in respect of peripheral vascular disease, coronary heart disease and cerebral atherosclerosis was refused as "not being due to service". The Commission's decision was affirmed by the Veterans' Review Board on 25 May 1987. On 12 May 1989, the Administrative Appeals Tribunal reversed the Board, set aside the Commission's decision and substituted a decision -

"... that (the respondent) is entitled to be paid a pension from 21 July, 1985 with respect to his incapacity caused by Peripheral Vascular Disease, Coronary Heart Disease and Cerebral Atherosclerosis".

1. The point taken by the Repatriation Commission, as appellant before this Court, was simply that the Tribunal had erred by overlooking the necessity of considering whether there was a causal connection between Mr Keenan's diseases and his war service. In my opinion, the Commission's argument is correct and the appeal must be allowed.

2. The central provision is s.9 of the Veterans' Entitlements Act 1986, which, among other things, differentiates between the connection required between disease and service where the veteran has rendered "operational service" and the connection required where he has rendered only any "eligible war service". Section 6 defines "operational service" elaborately; for example, a person who has rendered continuous full-time service outside Australia as a member of the Defence Force during a war to which the Act applies has rendered operational service - see s.6(1)(a). Mr Keenan did not render operational service, but only "eligible war service", which is defined in s.7 so as to include the rendering of "continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947 ..." (s.7(1)(c)); Mr Keenan fell within the description just quoted.

3. Because he did, the connection necessary to make his diseases "war-caused" was, prima facie, that prescribed by s.9(1)(b), namely
   

"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".

1. Under s.13(1)(b), where a veteran "has become incapacitated from ... a war-caused disease" a pension is payable. It is common ground that Mr Keenan is incapacitated and that he is entitled to a pension from his diseases if they were "war-caused" and that depends, as I have explained, upon showing that they "arose out of" or were "attributable to" his war service. If he had rendered operational service, it would have been enough, in order to satisfy s.9(1), to show the disease "resulted from an occurrence that happened while the veteran was rendering operational service" (emphasis added).

2. Putting that more simply, the veteran with the higher grade of service has to satisfy a temporal test only; a veteran such as Mr Keenan had to satisfy a causal test.

3. Two qualifications must be made to that. Firstly, s.120(6) negates any legislative intention to impose on Mr Keenan "any onus of proving any matter that is, or might be, relevant to the determination of the claim or application", but s.120(5) says the Commission cannot presume that a disease is war-caused; so there is no onus of proof either way.

4. Secondly, s.9(2) provides another possible route to success for a veteran such as Mr Keenan. It says, so far as relevant, that -
   

"For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission ... due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war 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 war-caused disease contracted by the veteran".

1. So that if it appears that but for the eligible war service or but for consequent changes in the veteran's environment the disease in question would not have been contracted, that is enough. No argument based on s.9(2) was advanced to the Tribunal, or to this Court.

2. In the comprehensive reasons for decision given by the Tribunal, one finds no discussion of the question whether the requirements of s.9(1)(b) were satisfied. The evidence before the Tribunal was such as to raise a question about that and the Tribunal did not deal with it, but confined itself to an issue which formed only part of that which the Tribunal had to consider:
   

"The only issue before the Tribunal was whether or not the applicant had commenced to smoke during a period of eligible war service so that those conditions could be said to relate to his war service" (para.3 of the Tribunal's reasons).

1. The expression "those conditions" referred to the diseases I have mentioned. Counsel for Mr Keenan argued that no legal error was shown, since the sentence I have quoted merely stated what was in fact litigated before the Tribunal and stated that accurately.

2. During the hearing, a number of statements were made as to what the issue was. A member of the Tribunal asked the Commission's representative -
   

"... is the position that you would not argue with the fact that smoking would be a contributing cause to Mr Keenan's condition, but the question is whether it is related to war service". The Commission's representative said: "Oh yes, that is the issue before the Tribunal".

1. The member's statement was correct: the Tribunal had to decide whether the diseases, which clearly were causally connected with smoking, were also causally connected with war service.

2. A little later, in discussing the relevance of some material before the Tribunal, counsel for Mr Keenan answered in the affirmative when asked: "The issue today is the smoking?"

3. Lastly, during the course of her final address, the Commission's representative said that:
   

"Now, the issue, quite clearly, comes down to one of when the smoking commenced, and the various pieces of evidence before the Tribunal as to when that occurred".

She went on to discuss that point and (although the transcript is not quite complete) seems to have said nothing in her brief address specifically related to the question whether sufficient causal connection had been shown between Mr Keenan's war service and his having later smoked cigarettes extensively for forty years.

1. Mr Keenan's case was such that he could not succeed unless it was shown that he began to smoke cigarettes during the war, but it was equally plain that he would not necessarily succeed even then. The effect of his evidence was that he had never smoked in his life before a visit to a military hospital in 1943, that he then smoked little and later gave up smoking for four or five months, after leaving the Army. He was asked why he recommenced smoking and said, among other things, that he got "pretty bored". Counsel for Mr Keenan suggested in this Court that once it was shown that Mr Keenan started smoking in hospital during the war, the requirement of a causal connection with his circulatory diseases was satisfied. Smoking tobacco, he said, is notoriously addictive; there can be no difficulty about taking judicial knowledge of that, but nor can one fail to notice that most men of Mr Keenan's generation surely smoked at some stage of their lives, that some people take up smoking for a while and stop completely and that others (including, according to his evidence, Mr Keenan) start, stop for a substantial time and then restart. It is plainly not the law that an "eligible service" veteran suffering from the circulatory diseases which smoking causes must obtain a pension for them if he can show that he first smoked during the war.

2. Unless the point was conceded, it was, in my opinion, the Tribunal's obligation to determine the causation question. While the Commission's representative did not address the Tribunal in a particularly helpful way, I am satisfied that no relevant concession was made and that the Tribunal erred in law in failing to consider whether the diseases arose out of or were attributable to Mr Keenan's war service. In my view, this Court should be slow to hold, where a consideration which is plainly relevant has been left out of account by the Tribunal, that its decision can stand because of the mode of conduct of the hearing before it; the quality of representation before the Tribunal is somewhat variable and some applicants to it are not represented at all.

3. The second point raised in this Court was whether, as counsel for the Commission contended, the appeal against the Tribunal's decision should simply be allowed and its decision set aside. The other possibility is to remit the case for further hearing. The former course should not be followed unless there is no evidence on which the Tribunal could properly find for Mr Keenan.

4. This point, namely the proper form of order, requires some more detailed account of the facts to be given.

5. Before the second world war (in either 1937 or 1938) Mr Keenan suffered from a disease called polyarthritis and that necessitated his spending three months in bed, according to the medical records. He was admitted to Heidelberg Military Hospital, in June 1943 and was diagnosed as then suffering from the same disease. He spent some four months in hospital on that occasion and was discharged, from hospital and from the army, in October 1943. His pension claim, with respect to circulatory diseases, was made over forty years later, on 20 September 1985, when he was nearly 70 years of age. Mr Keenan told the Department in December 1985 that he had smoked until the year 1982, had first smoked at 31 years and first smoked regularly at the age of 35. Asked: "Why did you begin to smoke regularly? (if known)", he answered: "Not known." If these answers were true, then he first smoked in 1947 and first smoked regularly in 1951. However, a medical report supplied to the Department about this time said that Mr Keenan began smoking in 1946.

6. As I have said, the Commission rejected the claim based on the circulatory diseases and the matter came before the Veterans' Review Board. It had before it an "indication that on 14 June 1943 the veteran admitted to smoking moderately" and it also had the other two statements on the subject which I have mentioned. The indication of moderate smoking came from Army medical records. Seeking "to clarify this apparent contradiction with the veteran" the Board raised it with him:
   

"The Veteran indicated that he might have had a cigarette in the Army, but that he 'really' commenced to smoke in his thirties, that is at around 1946."

1. After failing before the Board and appealing to the Tribunal, Mr Keenan saw a Dr James Cameron and told him, among other things:
   

"He did have a few cigarettes through his period in the Army during WWII, but started smoking habitually from 1946 on".

1. In his evidence before the Tribunal, Mr Keenan said that when he was in Heidelberg Military Hospital he "started to smoke a bit, not much". He explained that "everybody smoked in those days", that he was lying around with nothing to do, that the Red Cross left cigarettes on his desk and that he continued to smoke after the war was over. In a passage already averted to, he said he started smoking in the Army, in hospital and:
   

"When I came out - there were times - you know, I gave it up for four or five months, or so, but started again. But that is when I first started smoking, when I was in hospital. When did you return to smoking? --- Oh, well, I was - I do not know. I never thought it was doing me any damage, or anything like that. I just - I was bored ..."

1. The Tribunal, for reasons which are unclear, does not appear to have attached importance to Mr Keenan's evidence about having given up smoking at some time or times, apparently after leaving the Army.

2. The Board did not positively reject Mr Keenan's story that he first smoked during the war. It said:
   

"(T)he Board finds that the Veteran did not commence a smoking habit during service or because of service. He may well have had the odd cigarette in the Army, but it appears that he commenced to smoke in what might be called the usual habitual manner, that is as a regular smoker in 1946, some three years after discharge. The Board is reasonably satisfied thus that there is no connection between the Veteran's service and his smoking history."

1. That was an important finding, displaying a proper consciousness of the importance of the distinction between finding when Mr Keenan first smoked (which the Tribunal described as the "only issue") and finding the necessary connection between the whole long history of smoking and the war service.

2. In Repatriation Commission v. Law (1980) 31 ALR 140, the Full Court had to consider a claim under the Repatriation Act 1920 made on the basis that a veteran's fatal lung cancer had been caused by smoking which in turn had been due to war service. The relevant statutory provision had a significantly different form, principally in that the Commission had to show beyond reasonable doubt that the veteran's death from lung cancer was not related to war service. However, the case has some importance as dealing with the meaning of "has arisen out of" and "is attributable to his war service" in s.101(1)(b) of the Repatriation Act. That created a liability to pay a pension in respect of -
   

"... any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service."

The expressions used are indistinguishable, except as to grammatical form, from those in s.9(1)(b) I am considering. The Court said, as to the expression "has arisen out of," that it was not useful to put a gloss upon them, but as to "is attributable to" remarked:

"It seems clear that the expression 'attributable to' in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show 'attributability' if the cause is one of a number of causes provided it is a contributing cause."

1. In my opinion, this view is applicable to the construction of s.9(1)(b) of the 1986 Act.

2. That leaves for consideration s.9(2), quoted in part above. Obviously, if A would not have happened but for B, there is a causal connection between the two, but the contrary is not necessarily so. An established lawyer may be able to date his interest in the law from a visit to Court in his youth and say that his ultimately becoming a lawyer was contributed to by that visit; it is another thing altogether to say that but for the visit he would not have become a lawyer.

3. Therefore, the test imposed under s.9(2) seems more difficult for a veteran to satisfy than does that under s.9(1)(b). It is clear from s.9(1)(d) that the two are alternatives. The only possible advantage for Mr Keenan of reliance on s.9(2) that I can discern is that it refers to changes in "environment" as a possible cause of disease and that may encompass the social and other attributes of the Heidelberg Military Hospital. Nevertheless, it appears that the easiest path to success for Mr Keenan is under the "attributable to" branch of the s.9(1)(b) test, for Laws' case shows that war service need not be the sole or dominant cause and that it is enough that it be a contributing cause.

4. There may be much to be said for the view that it could not reasonably have been held, even accepting all the evidence adduced on Mr Keenan's behalf, that his service was a contributing cause. He went to hospital for treatment of a disease which he had before the war, and there was nothing to suggest that his war service caused its recurrence. He smoked for a period then for reasons which appear to have been equally applicable when he resumed doing so, after leaving hospital: boredom and the fact that others smoked. More generally, it may be argued to be fanciful to say that, because Mr Keenan first tried cigarettes while in an Army hospital, his war service was the cause of his continuing to smoke (with a substantial break or breaks) for many years and, as a result, suffering serious circulatory problems.

5. Nevertheless, it does not seem to me a proper exercise of discretion to take the fact-finding function away from the Tribunal in this case. It may be that what seems on paper to be a very weak body of evidence appears to those who heard (some of) the evidence to have more strength and to be a possible foundation for a finding that the circulatory diseases were caused by war service, particularly as the Tribunal gave no express consideration to the question of causation under either s.9(1)(b) or s.9(2). In my opinion, the matter should be remitted.

6. It should be noted that the Veterans' Entitlement Act came into force on 22 May 1986; that was three weeks after Mr Keenan applied to the Board to review the Commission's adverse decision. Under s.19 of the Veterans' Entitlement (Transitional Provisions and Consequential Amendments) Act 1986, which came into force on the same date as just mentioned, Mr Keenan's application was treated as if it had been made under s.135 of the Veterans' Entitlements Act.

7. The appeal will be allowed, the orders of the Tribunal set aside and the matter remitted to the Tribunal for further consideration in accordance with these reasons.