Webb and Repatriation Commission - [2001] AATA 633

DECISION AND REASONS FOR DECISION [2001] AATA 633

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/1350

VETERAN'S APPEALS DIVISION          )
           Re      GLORIA WEBB
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Mr A. Argent, Member Dr A. Shanahan, Member

Date22 June 2001
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED that the death of Andrew Rupert Webb was war-caused.
  ...........Sgd. Mr J. Handley.............
  Senior Member
CATCHWORDS
Veteran's Affairs – Operational Service – smoking by service conceded – death from non Hodgkins lymphoma – whether related to smoking – decision set aside.

REASONS FOR DECISION

22 June 2001 Mr J. Handley, Senior Member Mr A. Argent, Member Dr A. Shanahan, Member

This application has a long history.
The claim is brought by Gloria Jean Webb who is the widow of the late Andrew Rupert Webb who died on 17 May 1985 when he was then aged 60 years. The cause of death was certified to be-
"lobar pneumonia – 2 days
Histiocytic infiltration of reticuloendothelial system – 7 months".
The application was made to the respondent on 15 January 1992 for a pension. The respondent decided on 12 June 1992 that the death of Andrew Rupert Webb (deceased) was not war-caused. An appeal against that decision was lodged with the Veterans Review Board on 8 June 1993 and on 19 October 1994 the VRB affirmed the decision made by the respondent.
Mrs Webb then instituted proceedings in this Tribunal by application V1994/1139. The application was contested and the review was heard on 14 June 1996. On 22 November 1996 the Tribunal decided that the decision under review should be affirmed.
The applicant's solicitor subsequently lodged an appeal in the Federal Court (vg 761 of 1996) and on 24 October 1997 Finklestein J decided that the appeal be allowed, the decision of this Tribunal be set aside and the application be remitted to the Tribunal for hearing by a different member. (1997 1130 FCA).
The respondent lodged an appeal against the decision of Finklestein J in the Federal Court and on 5 November 1998 Tamberlin, Finn and Marshall JJ decided that the appeal be dismissed and the application be remitted for determination by a differently constituted Tribunal. (1998 1411 FCA).
The present decision arises out of a hearing, which was conducted on 18 & 19 October 2000. Having regard to the date of the primary decision by the respondent, Statements of Principles are not applicable and the application is to be decided by reference to s.8(1)(i) and s.120(i) and (iii) of the Veteran's Entitlements Act 1986.
An issue, which emerged in the previous AAT hearing, was the controversy as to the cause of death. Indeed the Tribunal decided, having regard to the T-documents lodged, the exhibits tendered during evidence and the medical evidence given from doctors at the hearing, that "no positive diagnosis of the disease which caused the death of Mr Webb has ever been established". Slides of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Webb and Repatriation Commission

Details

AGLC: Webb and Repatriation Commission [2001] AATA 633
Case: [2001] AATA 633
Decision Date: 22 June 2001

CaseChat Overview and Summary

The matter before the court involved a claim by Webb against the Repatriation Commission, regarding the veteran's death from non-Hodgkins lymphoma and its possible connection to smoking during his service. The central issue was whether the smoking during service led to the veteran's death, given the absence of clear biological or epidemiological evidence linking the two. The Federal Court was tasked with determining the validity of the hypothesis proposed by the veteran and the Commission's role in assessing such claims.

The court examined the precedent set in East v Repatriation Commission, which established that a hypothesis must be more than a mere hypothesis to be considered reasonable. It must have some degree of credibility and must find support in the material presented. The court also noted the High Court's view in Bushell v Repatriation Commission that a hypothesis based on facts raised by a medical practitioner in the relevant field is rarely unreasonable, even if it is opposed by other medical opinions. The Full Federal Court's decision in Repatriation Commission v Bey further clarified the Commission's duty to consider both supporting and opposing material when assessing a veteran's claim.

After considering the evidence and the applicable legal principles, the court found that the hypothesis linking the veteran's smoking during service to his death from non-Hodgkins lymphoma was not supported by sufficient biological or epidemiological evidence. The court held that the Commission's decision to reject the claim was not unreasonable, given the lack of credible evidence connecting the veteran's smoking during service to his death. The court set aside the decision of the Commission, emphasising the importance of credible evidence in establishing a connection between service and death in veteran's claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Additionally he said there was no biological or epidemiological evidence to support the hypothesis.Conclusion & Reasons For Decision In East v Repatriation Commission 1987 74 ALR 518 at 533 – 534 (adopting and approving a decision of the Veterans Review Board in Stacey and subsequently a decision of this Tribunal in Re Dell and Repatriation Commission 1986 9 ALD 596, the Court decided-"The addition of the word "reasonable" would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board to be reasonable a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be "raised" by material before the board we think it must find some support in that material – that is the material must point to; and not merely leave open the hypothesis as a reasonable hypothesis. At the same time however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical and it may be theoretical in either or both of at least two senses; by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case or by postulating a medical principle which science is not yet able to definitely prove, but is unable to describe as unreasonable". The High Court in Bushell v Repatriation Commission 1992 109 ALR 30 at page 35 said-"…. the case must be rare where it can be said that a hypothesis based on the raised facts is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out it is not the function of s.120(3) to require the Commission to choose between competing hypothesis or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean however that in performing its functions under s.120(3) the Commission cannot have regard to the medical or scientific material, which is opposed to the material, which supports the veterans claim. Indeed the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning, which supports the claim that there is a connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion". A Full Federal Court in Repatriation Commission v Bey 1997 79 FCR 372-3 reaffirmed and restated the status of East and Bushell and Byrnes v Repatriation Commission 1993 177 CLR 564.

Ratio Decidendi

Legal Principle Established

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