Whitbourne v Repatriation Commission

Case [2001] FCA 1353

FEDERAL COURT OF AUSTRALIA

Whitbourne v Repatriation Commission [2001] FCA 1353

ADMINISTRATIVE LAW – veterans’ entitlements – appeal from decision of the Administrative Appeal Tribunal – claim by veteran for post traumatic stress disorder, respiratory incapacity and thoraco-lumbar spondylosis – where the Tribunal found applicant did not satisfy the standard of proof prerequisites for post traumatic stress disorder – where Tribunal found that applicant did not suffer any incapacity from respiratory disease – where Tribunal found that the applicant’s spondylosis was not war caused – whether Tribunal erred in its interpretation of ss 9, 19 and 120 of the Veterans’ Entitlements Act  - whether Tribunal erred in its interpretation of the post traumatic stress disorder and spondylosis instruments

Veterans’ Entitlements Act 1986 (Cth)
Administrative Appeals Tribunal Act 1975

Benjamin v Repatriation Commission [2001] FCA 522 cited

Byrne v Repatriation Commission (1993) 177 CLR 564 cited
Budworth v Repatriation Commission [2001] FCA 317 cited
Bushell v Repatriation Commission (1992) 175 CLR 408 cited
Dornan v Riordan (1990) FCR 564 cited
Meehan v Repatriation Commission [2001] FCA 597 cited
Repatriation Commission v Cooke (1998) 90 FCR 307 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 referred to
Repatriation Commission v O’Brien (1985) 155 CLR 422 cited

GREGORY KENNETH WHITBOURNE v REPATRIATION COMMISSION

NO. N 107 OF 2001

BEAUMONT J
21 SEPTEMBER 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 107 OF 2001

BETWEEN:

GREGORY KENNETH WHITBOURNE
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

BEAUMONT J

DATE OF ORDER:

21 SEPTEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 107 OF 2001

BETWEEN:

GREGORY KENNETH WHITBOURNE
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

BEAUMONT J

DATE:

21 SEPTEMBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

  1. The applicant is a war veteran who performed operational service in Vietnam between 19 December 1968 and 28 November 1969.  He lodged a claim in 1997 for a pension under Part II of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) in respect of several claimed disabilities, but relevantly for “PTSD” (i.e. post traumatic stress disorder), “respiratory” (i.e. chronic airways disease lungs) and “legs and back” (i.e. osteoarthrosis lumbar spine and knees).

  2. By s 13 of the Act, it is relevantly provided that where a veteran has become “incapacitated from” a “war-caused” “injury” or “disease” (as defined by s 9), the Commonwealth is, subject to the Act, liable to pay a statutory pension (s 13(1)(d)). Section 14 provides for the making of a claim for a pension. Section 19 directs how the Repatriation Commission (“the Commission”) shall consider and determine, a claim.

  3. Relevantly, the claim was refused by the Commission.  That decision was affirmed by the Veterans’ Review Board and then by the Administrative Appeals Tribunal (constituted by the Hon. R N J Purvis QC)…

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Whitbourne v Repatriation Commission [2001] FCA 1353
Case
[2001] FCA 1353
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Whitbourne v Repatriation Commission involved an appeal by the applicant, Whitbourne, against a decision made by the Tribunal regarding his claims for war-related pleural condition and post-traumatic stress disorder (PTSD). The Tribunal had determined that the applicant did not suffer from any war-caused pleural condition and that the evidence did not support a diagnosis of PTSD. Whitbourne argued that the Tribunal erred in its interpretation of certain sections of the Act and the instruments related to spondylosis and PTSD.

The primary legal issues before the court were whether the Tribunal had correctly applied the statutory framework in determining the causation and impact of the applicant's pleural condition, and whether it had properly assessed the evidence in relation to the PTSD claim. Specifically, the court had to consider if the Tribunal had erred in finding that the applicant did not suffer from any pleural condition or incapacity from that condition, and if it had applied the correct standard of proof in assessing the cause of the pleural condition and the PTSD claim.

The court found that the Tribunal had erred in its interpretation of the relevant sections of the Act. It concluded that the Tribunal should have assessed the hypothesis of war-causation for the pleural condition at the standard of the reasonable hypothesis, rather than determining it on the balance of probabilities. The court also found that the Tribunal failed to properly consider the evidence and did not provide adequate reasons for its findings on the PTSD claim. Consequently, the court held that the Tribunal's decisions were incorrect and did not align with the statutory requirements.

The court ordered that the application be dismissed, with costs to be borne by the applicant. This decision underscores the importance of correctly applying statutory standards of proof and ensuring that the Tribunal provides sufficient reasons for its findings when dealing with war-related injury and disease claims.

Orders

Orders of the court

1. The application be dismissed, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BEAUMONT J
By his amended notice of appeal, the applicant propounds three grounds of appeal:(1) The Tribunal erred in its interpretation of ss 9, 19 and 120 of the Act by:(a)finding, contrary to the scheme in ss 9 and 19, that the applicant did not suffer from any pleural condition, on the basis that the applicant was not suffering any incapacity from that condition.(b)finding, on the balance of probabilities, that the pleural condition was caused by asbestos exposure, when the question of causation was to be determined at the standard of the reasonable hypothesis as provided by s 120(1) and (3) of the Act.(3)The Tribunal erred in its interpretation of the Spondylosis Instruments by failing to give any reasons (as required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”)) as to why the hypothesis raised by the applicant did not meet the requirements of the Spondylosis Instruments.(3) The Tribunal erred in its interpretation of the PTSD Instruments by:(a)finding on the balance of probabilities that there was no factor in the PTSD Instruments raised when the question was properly to be determined at the standard of the reasonable hypothesis as provided by s 120(1) and (3) of the Act.(b)finding that the evidence before the Tribunal was not capable of meeting the definition of “experiencing a stressor” contained within the PTSD Instruments.CONCLUSIONS ON THE APPEAL It will be convenient to consider each of the grounds of appeal in the order adopted by the applicant in his submissions.(1) The pleural condition (the first ground (i.e. 1(a) and (b)) of appeal)(a) The applicant’s argument On behalf of the applicant the following is submitted:·According to the evidence of the applicant, he smoked about ten cigarettes a day before his service, increasing to about thirty during service; and that in about 1977, he had a bout of chest illness.·Dr Miller considered that the illness may have been pleurisy. The applicant also had been exposed to asbestos in his civilian working life. X-rays showed some pleural thickening on the right lower lobe of the lung. In Dr Miller’s opinion, the smoking habit led to the chest infection which itself resulted in the pleural thickening. Dr Collopy agreed.·In the applicant’s original written submissions, reference was made to Professor Breslin’s evidence as, in effect, equivocal. However, in oral argument, counsel for the applicant withdrew that submission, and instead indicated that the Court may now proceed upon the assumption that the diagnostic opinion expressed by Professor Breslin in pars 3 and 4 of his report dated 2 March 2000, may be accepted.·Professor Breslin’s opinion relevantly was:“3.He has extremely mild asbestos-induced pleural disease. There is a pleural plaque on the left and the pleural blunting of the right costophrenic angle could conceivably be due to his asbestos exposure while working in the power stations. Alternatively, the pleural changes there may be due to past infection. In any event, it can be stated categorically that neither pleural change is causing any disability and it is extraordinarily unlikely that they ever will. He does not have any restriction and most certainly does not have restrictive lung disease. Restrictive lung disease requires that one’s vital capacity at least is reduced on the spirometry but this man’s vital capacity is within the normal limits (80 – 120% predicted is within normal limits and this man’s vital capacity as measured by me is 89% predicted).4.Thus the only respiratory disease that he has is some very mild pleural disease which is most likely due to his past asbestos exposure and cannot be related to his Army service in any way. In particular it is not due to his smoking. Smoking does not produce pleurisy. Certainly people who smoke are prone to develop respiratory infections but this is almost always acute bronchitis. It is possible that he developed acute right lower lobe pneumonia predisposed to by his smoking and that this has left him with a little scarring at the right base. However this is precisely just a small scar at the right base, is not causing any trapping of the lung, is not causing any disability and will not cause any disability. Whether or not the pleurisy is indirectly related to his smoking via a respiratory infection I am not able to say for certain and I must say that it is possible. The pleural scarring that is there is not causing any disability and will not cause any disability and does not predispose him to any other abnormality and is not causing trapping of the underlying lung. It is not causing restrictive lung disease. Further, it is quite possible that the pleural changes at the right base are due to his past asbestos exposure as certainly the pleural plaque on the left is.”·The claim was to be determined in accordance with s 120(1) and s 120(3), whereby a claim may be based upon “a reasonable hypothesis by which to link the condition [with] war service, … [and] the Commission [is] to accept the claim unless it was satisfied beyond reasonable doubt to the contrary”. ·(Reliance is placed by the applicant upon the reasoning in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 – 415, as explained as follows in Byrne v Repatriation Commission (1993) 177 CLR 564 at 571:“The position may be summarised as follows: (1) First, sub-s.(3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”)·Section 120A, introduced in 1994, provides that a “reasonable hypothesis” is to be assessed by reference to statutory instruments made under s 196B. In Deledio, it was held that, for claims made after 1 June 1994, the reasoning in Bushell and in Byrne was applicable in the manner explained in the four Deledio “principles”, subject to the “caveat” to the second “principle” that a “hypothesis may still be reasonable if there is no SoP in place”.·The Tribunal erred in its interpretation of ss 9, 19 and 120 of the Act by –(a)finding that the applicant did not suffer from any pleural condition, upon the basis that the applicant was not suffering any incapacity from that condition (the first ground of appeal);(b)finding, on the balance of probabilities, that the pleural condition was caused by asbestos exposure, when the question of causation was to be determined at the standard of the reasonable hypothesis as prescribed by s 120(1) and s 120(3) (the second ground of appeal).·In respect of the pleural condition, the hypothesis for war-causation put to the Tribunal was that the applicant’s smoking habit was contributed to by his war service; that the smoking led to his contracting pneumonia, which brought about the pleural condition. In accordance with the authorities, it was first necessary to determine whether an applicable statement of principal existed; and if not, the hypothesis was to be assessed without reference to any SoP.·In stating that it was “satisfied on the evidence … that the [a]pplicant does not suffer any incapacity from any respiratory disease; there being no incapacity the question as to whether one arose from a war-caused injury does not arise”, the Tribunal erred in law, for these reasons:¨Section 9(1)(a) provides that an injury or disease shall be taken to be “war-caused” if it “resulted from an occurrence that happened while the veteran was rendering operational service”. Section 5D(1) defines “disease” and “injury”. By s 5D(2)(a) it is provided that, unless the contrary intention appears, a reference to the “incapacity of a veteran from a war-caused injury or disease “is a reference to the effects of that injury or disease and not a reference to the injury or disease itself”.¨As provided by ss 9(1) and 19, the Tribunal’s task was to determine whether a war-caused condition exists, tested at the level of the “reasonable hypothesis”, as provided by ss 120(1) and (3). If a condition is found to exist, it is then necessary to consider the degree of incapacity. The degree of incapacity is to be determined in accordance with the Guide to the Assessment of Rates of Pension (“GARP”) made under s 29. (By s 29(1), it is provided that the Commission may prepare a GARP setting out (a) criteria by reference to which the extent of the incapacity shall be assessed; and (b) the methods by which the extent of that incapacity shall be assessed as a percentage of incapacity (which may be nought (s 29(5)). The level of impairment caused by a condition may fluctuate, and there are many circumstances in which a GARP will give a nil rating for a war-caused condition.)·Moreover, in stating that it accepted Professor Breslin’s view that the consolidation he identified was an asbestos related feature, the Tribunal erred in law because –¨The question of the cause of the condition “was to be determined at the reasonable hypothesis standard”.¨In accordance with Bushell, the “reasonableness” of the hypothesis is not to be assessed by reference to competing opinions.¨In any event, Professor Breslin acknowledged the possibility that the pleural condition was both “smoking and pneumonia-related”.(b) The Commission’s response to ground 1(a) of the appeal

Ratio Decidendi

Legal Principle Established

Established by: BEAUMONT J

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