Whetton, B. v Repatriation Commission
[1991] FCA 147
•05 APRIL 1991
Re: BELLE WHETTON
And: THE REPATRIATION COMMISSION
No. N G261 of 1990
FED No. 147
Administrative Law
22 ALD 297
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)
CATCHWORDS
Administrative Law - whether veteran's death war-caused - reasonable hypothesis of connection between exposure to asbestos and malignancy causing death - finding of no hypothesis when evidence of connection uncontested - whether "plausible" hypothesis is reasonable hypothesis - whether case should be remitted to AAT when result appears certain.
Veterans' Entitlements Act 1986 sections 6, 120(1) and (3), 138(1)
Administrative Appeals Tribunal Act 1975 sections 33(1), 44
Minister for Immigration and Ethnic Affairs v Gunger (1982) 4 ALD 57 5
Repatriation Commission v O'Brien (1985) 155 CLR 422
East v Repatriation Commission (1987) 74 ALR 518
Webb v Repatriation Commission (1988) 78 ALR 696
Australian Trade Commission v Richard Shrapnel Consulting Services Pty Ltd (1988-89) 85 ALR 287
Gilbert v Repatriation Commission (1989) 86 ALR 713
Rapatriation Commission v Lowerson (1989) 22 FCR 430
Hamling v Repatriation Commission (1989) 10 AAR 121
Doolette v Repatriation Commission O'Loughlin J., 1 June 1990
Ahrenfeld v Repatriation Commission unreported 29 August 1990
HEARING
SYDNEY
#DATE 5:4:1991
Counsel and solicitor Mr A.T. McInnes QC, Mr A.C. Hill and
for the applicant Mr A.J. Clout instructed by Mr K. Harrison
Counsel and solicitor Ms M. Beazley QC and Ms R. Henderson instructed by for the respondent the Australian Government Solicitor
ORDER
Decision of Administrative Appeals Tribunal of 19 April 1990 set aside.
Claim remitted for final evidentiary resolution in accordance with these reasons for judgment.
Any necessary full rehearing to be conducted by another member of the Tribunal.
Respondent to pay applicant's costs.
NOTE: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
JUDGE1
The applicant is the widow of Frank Richard Whetton who died on 13 August 1986 from a form of cancer known as non-Hodgkin's lymphoma. He had been significantly exposed to asbestos while earlier serving in the Australian Navy. On 19 April 1990, the Administrative Appeals Tribunal (the Tribunal) affirmed a decision of the Veteran's Review Board on 10 November 1987 that Mr Whetton's death was not war-caused. The Board had earlier affirmed a decision by a delegate of the respondent on 18 November 1986 to the same effect. The late Mr Whetton was a veteran with operational service as defined by section 6 of the Veterans' Entitlements Act 1986 (the Act). The applicant now appeals to this Court from the decision of the Tribunal. The appeal is confined to questions of law by section 44 of the Administrative Appeals Tribunal Act 1975.
The deceased man served in the Navy from 1936 to 1948. He was on operational service from 3 September 1939 to 17 August 1948. His seagoing duties were to maintain and replace asbestos lagging around the pipes in the various ships in which he served. The Tribunal found that for a period in excess of 3 years his exposure to asbestos was considerable. The Tribunal received no evidence that prior to joining the Navy he had been subjected to any such exposure. Like so many others that have come before this Court in recent years, the case turns on the application of subsections (1) and (3) of section 120 of the Act. These 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.
(2) ...
(3) In applying sub-section (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-cause 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.
(4) ...
The Tribunal stood in the shoes of the Commission and possessed the same relevant duties and obligations.
In East v Repatriation Commission (1987) 74 ALR 518 at 534, a Full Court of this Court held that a reasonable hypothesis was one "... pointed to by the facts, even though not proved upon the balance of probabilities". See also Webb v Repatriation Commission (1988) 78 ALR 696; Gilbert v Repatriation Commission (1989) 86 ALR 713; Repatriation Commission v Lowerson (1989) 22 FCR 430; Hamling v Repatriation Commission (1989) 10 AAR 121; Doolette v Repatriation Commission O'Loughlin J., 1 June 1990. I also explained these provisions in Ahrenfeld v Repatriation Commission unreported 29 August 1990.
Quoting Hamling to the effect that the evidence must go further than expert theories to the point where a causal link was actually suggested by the facts of the particular case, the Tribunal was not satisfied that any hypothesis had been raised of a connection between Mr Whetton's malignancy and his exposure to asbestos in the Navy.
A specialist haematologist Dr G.G.G. Crane gave evidence to the Tribunal that there was a plausible hypothesis that Mr Whetton's non-Hodgkin's lymphoma was caused or hastened by his exposure to asbestos. The word "plausible" was used in contradistinction to "speculative" and "fanciful". Dr Crane's evidence was that the cause of non-Hodgkin's lymphoma, which is not one but actually a group of diseases, was not known nor is it confined to attacking one part of the body. There are several risk factors but in Dr Crane's opinion, based on expert analyses and writings, asbestos exposure is primarily a risk to the appearance of the disease in the gastro-intestinal tract. The fact that Mr Whetton's cancer was in the retro-peritoneum was apparently the reason Dr Crane limited his assessment of the hypothesis of a relationship between the condition and the asbestos exposure to "plausible".
There was evidence from a specialist surgeon Dr J.E. Payne that a causal connection between the exposure and the lymphoma was a reasonable hypothesis in this case. However, although he had several patients with the same disease and had a personal interest in the condition, Dr Payne stated that Dr Crane was better placed to comment on the relationship between asbestos and the malignancy. In answer to the Tribunal, Dr Payne could not say that a connection between asbestos exposure and non-Hodgkin's lymphoma was more probable than not. Having regard to the express disavowal of this test in East and other cases, I am afraid that the relevance of this question and answer escapes me. Dr Payne agreed that the association between asbestos and the lymphoma warrants further research (whether generally or in this particular case was not made clear), but he confirmed the view expressed in his report that Mr Whetton's prolonged exposure established a reasonable hypothesis of connection in this case.
The first question in the appeal then is whether a plausible hypothesis is enough to satisfy the statutory criterion that the hypothesis be "reasonable".
The Shorter Oxford Dictionary defines "plausible" as including "... having a show of truth, reasonableness or worth; apparently acceptable ...". Despite the respondent's submission that "plausible" means something worthy of investigation or further research, to me there seems little difference in this context between the dictionary definition and "reasonable" as explained in East. Dr Crane was not asked what he meant by "plausible" or what he had to say about the appropriateness of "reasonable" to describe his hypothesis. Yet the matter has to be decided on some basis other than semantics or a game with words. An eminent haematologist with expert knowledge in the area regards as a plausible (apparently truthful/reasonable/acceptable) hypothesis the causal connection between Mr Whetton's lymphoma and his personal exposure to asbestos as it was evidenced to and found by the Tribunal. His qualifications and credibility are not challenged let alone undermined. It seems to me quite pedantic and unreal for lay outsiders like the Tribunal and me to hold that the requirements of the parliament are something more.
The explanatory memorandum to the 1985 Bill which introduced what is now section 120 of the current legislation said that this section, especially subsection (3), was designed to "negate the effect" of the High Court's decision in Repatriation Commission v O'Brien (1985) 155 CLR 422. It was the dissenting judgment of Brennan J in that case that became the source of the present section 120. The memorandum went on:
A pension will not be payable in circumstances where the evidence does not provide some positive inference in favour of a connection between the injury, disease or death and the veteran's or member's particular service. The sub-clause will require the Commission to refuse the claim, where, at the end of the Commission's consideration of the material before it, no reasonable hypothesis that there is such a connection has been raised, and if raised, no such reasonable hypothesis remains.
Further, the Commission must be of the opinion that the injury, disease or death has a connection, temporal or causal as required by the legislation, with the circumstances of the person's particular eligible service. It is intended under sub-clause ... (3) that there must be some material before a determining authority for it to make a judgment on whether it is satisfied beyond reasonable doubt that there is no sufficient ground to grant a claim.
The last sentence is important. As I understand that statement in the context of this case, it means that only where evidence before the Tribunal fails to raise and sustain a reasonable hypothesis of connection between incidents of the deceased's actual service and his actual cause of death will it be possible for the Tribunal to conclude beyond a reasonable doubt that there is no ground for the pension to be paid.
On the evidence in this case, I regret being unable to agree with the Tribunal that a true reading of Hamling requires the conclusion for this case that no hypothesis of connection has been raised. After reviewing the case law on what is a "reasonable hypothesis" and the relevant facts in the case, what Davies J said in Hamling at 136 was this:
The existence of ... a (general) theory (held by some reputable orthopaedic surgeons)... would not of itself establish a reasonable hypothesis in the particular circumstances of the veteran's case. It was necessary that an appropriately qualified expert put forward a supposition which, taking into account ... the particular circumstances of the veteran's case, suggested a causal link between his disabilities and (the events) suffered during his war service.
The medical evidence in that case spoke at best of a remote possibility of a causal nexus. I do not take his Honour to have meant that so long as there was one supposition suggestive of nexus, it would be enough in every case to pass the statutory test whatever volume and weight of contrary evidence was available. Rather the view was that a theoretical possibility of nexus was not sufficient.
If in this case, Drs Crane and Payne had given conflicting evidence, or if other conflicting evidence had been called, or they had put forward the view that causal connection was only one of many available theories or theses, the case may have come within his Honour's criteria for failure. However, this was not the position. The evidence of the two doctors, whose qualifications or credibility were not rejected by the Tribunal, did precisely what Justice Davies said was necessary for success when they put forward the view that the facts of this case suggested a supposition of connection.
Whilst agreeing that the general position was still not certain and that individual cases will vary in the degree of likelihood of connection, Drs Payne and Crane expressly supported a hypothesis of connection in this very case. There was no contrary evidence. The Tribunal did not disbelieve or reject their evidence. While it is true that it was for the Tribunal to decide whether a reasonable hypothesis had been raised and maintained, a finding that no hypothesis of any kind had been raised is in the teeth of the evidence and is in my view unsustainable as a matter of law.
The Tribunal found Dr Crane's evidence that connection was a "plausible hypothesis" to be "perjurative" (sic), presumably meaning "pejorative" not "perjurous". I cannot see why. It said that this was a "new beast" which could be "put down at birth on the basis that the standing of the hypothesis raised is the ultimate question for the Tribunal and it should not be deflected from that task by the opinion of experts". I do not see any sign of an attempt at such deflection in this case. The Tribunal seemed somewhat unfairly to blame Dr Crane for releasing this new beast "into the already philologically crowded arena of veterans' legislation replete with its "reasonable", "fanciful" and "speculative" hypothesis ...". The legislation only uses the word "reasonable". The other terms are part of sturdy judicial attempts to explain the statute. It is thus legislators and lawyers who infest the scenario with expressions of this kind. We then require the doctors to fit themselves into that scenario and wax angry when they prefer to say what they mean and use words other than those prescribed. If they perchance stray from such 'holy writ', the Tribunal and the Court are still bound to decide and determine, in the context of the law, what evidence they have given and what effect it has on the legal criteria for the particular case.
I can understand the Tribunal's frustrations in applying this difficult legislation, "replete" as it is with drafting and political compromises, but I cannot agree with the Tribunal's formulation of the problem or the conclusions drawn in this case. If Dr Crane's evidence caused any problems of comprehension, he might have been asked directly if there was a difference between his terminology and the legislative "reasonable hypothesis" instead of about the irrelevant balance of probabilities. I do not think the veteran's widow should be the innocent and unwitting victim of any gap in the Tribunal's understanding of this evidence.
The Tribunal is by section 33(1) of the Administrative Appeals Tribunal Act bound to conduct its proceedings with as little formality and technicality as possible. It is not bound by the rules of evidence. Section 138(1) of the Veterans' Entitlement Act requires action in accordance with "substantial justice and the merits of all the circumstances of the case". The hearing and decision are not to be "bound by technicalities, legal forms or rules of evidence". I do not believe that these legislative mandates are complied with by converting the entitlement of a veteran's widow to a valuable pension into an "arena of philology". It is an important legal and financial right that is at stake, not a battle for the high ground of linguistic perfection.
The appeal will be upheld. The second question is what I should do next. To me it is clear that on the evidence as I read it the applicant's case for a pension has been made out.
Subsections (4) and (5) of section 44 of the Administrative Appeals Tribunal Act state:
(4) The Federal Court ... may make such orders as it thinks appropriate by reason of its decision.
(5) Without limiting by implication the generality of subsection
(4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.
Justice Sheppard in Minister for Immigration and Ethnic Affairs v Gunger (1982) 4 ALD 575 at 585 stated that these subsections contained a number of implicit restrictions. His Honour concluded that this Court has no express power to substitute what it sees as the correct decision unless that is the appropriate order "by reason of its decision" on the point of law in the context of the particular proceedings. Other cases have supported this view by emphasising that it is for the Tribunal and not the Court to determine questions of fact.
Therefore, the only occasion the Court may substitute its decision is when the facts as found by the Tribunal admit, upon the application of the law as laid down by the Court, of only one result. This means that the Court cannot substitute its finding on the facts, but merely apply its findings of law to the given facts as found by Tribunal.
In Truchlik v Repatriation Commission (1989) 87 ALR 263 at 269 Justice Davies (with whom Justices Sheppard and Foster agreed) stated:
The Court may substitute a decision of its own if it is of the view that there was only one decision to which the Tribunal, properly instructed, could have come.
In another Full Court decision, Justice Burchett stated that the Tribunal alone can decide questions of fact; but there are cases where only one decision is in law open on the facts which have been found, or which are not in dispute: Australian Trade Commission v Richard Shrapnel Consulting Services Pty Ltd (1988-89) 85 ALR 287 at 290.
Clearly if additional evidence is or may be needed or if relevant questions of fact have yet to be determined, the case must be remitted. On the other hand, further postponement of long delayed entitlements to permit the formal application to existing evidence of legal principle defined by this Court, or obvious answers to existing questions, or efforts to find further evidence, thereby to prolong the agonies of a claimant who is ultimately bound to be successful, seems to me to be unworthy of a modern and just system of case disposal. The public and private cost is forbidding. Complaints about the cost and delay of litigation remain hollow while such procedures are continually countenanced. If a Court at first instance is bound by the current legislation to remit cases such as this, consideration should be given to changing the legislation so as to encourage a corresponding attitudinal change by everyone concerned towards the earliest possible final resolution of such cases.
I am most reluctant to send this matter back for re-hearing what the Tribunal felt was a "philological" dispute, the outcome of which appears certain. The evidence establishes that Mr Whetton was almost 74 years old when he died. He served his country in and out of war. His widow is now 71 years old. The taking of 5 years to resolve her entitlement to a prescribed financial payment as a result of his death is in my view quite unacceptable. With a woman of this age there is a positive incentive to delay and a disincentive to expedite, even if not deliberately so.
The finding that no hypothesis arose from this evidence is an erroneous finding of law. The question of whether the hypothesis raised is reasonable is a question of fact. Only if I could positively find that the evidence that it was reasonable was unanswerable could I substitute my conclusion for that of the Tribunal. Whilst I have no doubt what the conclusion should be, the Administrative Appeals Tribunal Act and the authorities seem to mandate that this conclusion is for the Tribunal alone to draw.
Some may view this case to be on the borderline because it was decided below by speculating on the meaning of Dr Crane's evidence rather than by ascertaining precisely what it was. It seems unlikely that the doctor had a dictionary at hand when he was giving his evidence. It was the duty of the Tribunal to ascertain what he meant. The case failed because that was not done. For that reason alone I feel that I am bound to remit the matter for the evidentiary resolution of this matter in accordance with these reasons for judgment. The matter should be dealt with expeditiously by the Tribunal. If it has to be re-heard, this should be done by another member of the Tribunal. The respondent will pay the applicant's costs.
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