Winch, Donald Arthur v Repatriation Commission
[1996] FCA 886
•9 Oct 1996
CATCHWORDS
REPATRIATION - Veteran's pension - Medical experts differ on possibility of war-time illnesses causing aortic stenosis - Whether conflict or opposing medical opinions on a question of "fact" - Whether open to Administrative Appeals Tribunal to form opinion that the material did not raise a reasonable hypothesis connecting the illnesses with the aortic stenosis - Whether material pointed to or raised veteran's smoking during his war service as war-caused - Whether a raised fact that war-caused smoking contributed to the aortic stenosis - Whether error of law in disregarding material pointing to or raising smoking as war-caused - Whether Tribunal erred in law in forming its opinion under s.120(3) from only part of the material - Whether the Tribunal erred in law in applying an onus of proof on balance of probabilities or on some other unspecified standard of proof or satisfaction.
Veterans' Entitlements Act 1986 (Cth) ss.9, 120
Repatriation Commissioner v. Whetton (1991) 31 FCR 513
Bushell v. Repatriation Commission (1992) 175 CLR
East v. Repatriation Commission (1987) 16 FCR 517
Byrnes v. Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v. Owens (High Court of Australia, unreported 5 August 1996)
Lowerson v. Repatriation Commission (1994) 50 FCR 252
Bell v. Repatriation Commission (1992) 26 ALD 545
Steed v. Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
VG676/1995 DONALD ARTHUR WINCH V. REPATRIATION COMMISSION
CORAM:MERKEL J.
PLACE:MELBOURNE
DATE:9 OCTOBER 1996
IN THE FEDERAL COURT OF AUSTRALIA
MELBOURNE DISTRICT REGISTRY
GENERAL DIVISION
No. VG 676 of 1995
On appeal from the Veterans' Appeal Division of the Administrative Appeals Tribunal constituted by Commodore B.G. Gibbs, Senior Member, Mr. R.C. Gillham and Miss E.A. Shanahan, Members.
B E T W E E N:
DONALD ARTHUR WINCH
Applicant
- and -
REPATRIATION COMMISSION
Respondent
CORAM:MERKEL J.
PLACE:MELBOURNE
DATE:9 OCTOBER 1996
MINUTES OF ORDERS
The decision of the Administrative Appeals Tribunal is set aside.
The matter, except in so far as it concerns the hypothesis connecting the tonsillitis and fever suffered by the veteran during his war service with his calcific aortic stenosis, is remitted to the AAT for its determination in accordance with law.
The respondent pay the applicant's costs of and incidental to the appeal.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
MELBOURNE DISTRICT REGISTRY
GENERAL DIVISION
No. VG 676 of 1995
On appeal from the Veterans' Appeal Division of the Administrative Appeals Tribunal constituted by Commodore B.G. Gibbs, Senior Member, Mr. R.C. Gillham and Miss E.A. Shanahan, Members.
B E T W E E N:
DONALD ARTHUR WINCH
Applicant
- and -
REPATRIATION COMMISSION
Respondent
CORAM:MERKEL J
PLACE:MELBOURNE
DATE:9 OCTOBER 1996
REASONS FOR JUDGMENT
The facts
The applicant rendered operational service as a pilot in the Royal Australian Air Force from 23 June 1941 to 27 March 1946. He claims to be entitled to a pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act") on the ground that he has suffered war-caused injuries or diseases.
During his service the applicant was admitted to sick quarters for an illness which was recorded as "Acute Tonsillitis". His symptoms were recorded as:
"Very sore throat. Fever. Swollen & tender Submandibular Glands. Coughing. Head ache. Fauces very inflamed. Some Post Nasal discharge running down Larynx. Chest N.A.D. Heart N.A.D. Abdomen N.A.D."
After treatment of menthol inhalation, throat gargle/paint and rest he was discharged two days after admission as "Cured".
About a year or more later the applicant suffered from a fever which, despite a number of tests, was not diagnosed. He never experienced a recurrence.
After discharge from service until his retirement in 1980 the applicant was employed as a pilot, initially with Ansett and then by Trans Australia Airlines. In the course of his employment he was regularly subjected to medical examinations.
On 3 July 1991 the applicant lodged a claim for a pension in respect of aortic valve stenosis and coronary artery disease which were later diagnosed as calcific aortic stenosis and coronary atherosclerosis.
Calcific aortic stenosis involves the constriction or narrowing of the aortic valve, which restricts blood flow into the atrium of the heart. This may occur due to calcific degenerative changes. Coronary atherosclerosis involves fatty degeneration of the coronary arteries. The result is an impairment of blood flow which causes harm to the functioning of the heart muscles.
The conditions were determined by the Repatriation Commission ("the Commission") and the Veterans Review Board ("the Board") not to be war-caused and the claim for a pension was refused.
Other medical conditions of the applicant, being bronchial neuritis, solar heratosis and carcinoma of larynx had been accepted by the Commission as war-caused, thereby entitling the applicant to a pension under the Act.
The acceptance of carcinoma of the larynx as war-caused is of some significance as it was common ground that it was caused or contributed to by the applicant commencing smoking as a consequence of his war service.
The applicant sought review by the AAT of the Board's decision. Before the commencement of the hearing the Commission conceded that the coronary atherosclerosis was war-caused pursuant to s.9 of the Act. The concession was also significant as it was not disputed before me that the only basis upon which that medical condition could be said to be war-caused was that it was caused or contributed to by the applicant commencing smoking as a consequence of his war service. There was material, including a medical report of Dr. Ryan, to that effect before the AAT.
In its reasons for decision the AAT referred to the concession in the following introductory passage:
Since lodgement of his application for review and before commencement of the hearing, the respondent, however, conceded that the disability coronary atherosclerosis is war-caused pursuant to section 9 of the Veterans' Entitlement Act 1986 ("the Act"). It should be stated at this point that the Tribunal is satisfied that the concession is properly made and finds accordingly. (Emphasis added).
In its decision the AAT varied the decision under review by "determining that coronary atherosclerosis is war caused". After dealing with the concession the AAT proceeded to consider whether the remaining condition, calcific aortic stenosis, was war-caused and concluded that:
From the whole of the material before us we find that the facts raised by that material do not give rise to a reasonable hypotheses connecting Mr. Winch's calcific aortic stenosis with the circumstances of his particular service.
The applicant has appealed against the decision on the ground that in arriving at it the AAT erred in law. He also appealed against the decision of the AAT that he was not eligible for payment of a pension at the special rate pursuant to s.24 of the Act. If the applicant succeeds in his challenge to the decision in respect of aortic stenosis the issues arising under ss.23 and 24 of the Act may have to be reconsidered in the light of any further decision by the AAT in respect of the aortic stenosis.
The applicant's case
The applicant claims that as a consequence of his war service he commenced smoking. He was also ill with tonsillitis and fever during his service. He has alleged that his smoking and illnesses either separately or together caused or contributed to his calcific aortic stenosis.
The main factual issue contested in the AAT related to whether the material gave rise to a reasonable hypothesis connecting
the two illnesses suffered by the applicant during his service with his calcific aortic stenosis.
The Legislation
The applicant's claim relies upon s.9(1) of the Act which provides:
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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;
(c)......
The claim relates to operational service rendered by the applicant. Accordingly the provisions of s.120 apply:
120.(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 subsection (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-caused 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.
The case law
As was pointed out in Repatriation Commissioner v. Whetton (1991) 31 FCR 513 at 516 the opinion to which s.120(3) refers is an opinion that the material before the Commission does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
The expression "the material before [the Tribunal] does not raise a reasonable hypothesis" was considered in the joint judgment of Mason CJ, Deane and McHugh JJ in Bushell v. Repatriation Commission (1992) 175 CLR 408 at 414:
The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
Their Honours continued at 415:
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 hypotheses 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 veteran's 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 the informed opinion.
In East v. Repatriation Commission (1987) 16 FCR 517 the Full Court said at 533:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. it is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
However, as was said by Mason CJ, Gaudron and McHugh JJ in Byrnes v. Repatriation Commission (1993) 177 CLR 564 at 569-70:
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified the question for determination is whether the hypothesis is reasonable.
and at 570:
In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable.
An assumed fact cannot arise in the abstract. Obviously it is a fact that is reasonably open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis. Using such criteria ensures that the assumed fact is "raised" by the material and can be relied upon as a relevant matter and therefore as a "raised fact" in forming an opinion as to the reasonableness of the hypothesis: see Byrnes at 569-7 and Lowerson v. Repatriation commission (1994) 50 FCR 252 at 260 per Einfeld and Beazley JJ.
The joint judgment of Davies and Beaumont JJ in Bell v. Repatriation Commission (1992) 26 ALD 545 at 546 emphasised that whether the material before the Tribunal raised a reasonable hypothesis was a question of fact. At 547 they cited the following proposition from Whetton:
What is required is "some degree of acceptability or credibility" to make the hypothesis "reasonable", and "some support in [the] material" before the tribunal, so that the hypothesis can be said to be "raise[d]" by that material.
In the transcript of the application for special leave to appeal from the decision of the Full Court (reported at (1995) 22 AAR 121) in Repatriation Commission v. Owens (High Court of Australia, unreported 5 August 1996) Brennan CJ and Gaudron and Gummow JJ said at 14:
The question whether, for the purposes of section 120(3) of the Veterans' Entitlements Act 1986, material raises a reasonable hypothesis is a question of fact for it involves no more than a determination whether an hypothesis of connection is reasonable.
........ .
A majority of the Full Court allowed an appeal from Mr. Justice Lockhart but their Honours seemed to have misunderstood the nature of the issue arising under section 120(3). It is not whether any hypothesis or connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal.
Once the "raised facts" in the material raise a reasonable hypothesis, so that the Commission or Tribunal is unable to form the opinion referred to in s.120(3), the joint judgment in Bushell makes it clear at 416 that the question is whether under s.120(1) the Commission or Tribunal "is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis", that is to say, "the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist".
The material before the AAT
The applicant relied upon the evidence of two medical experts to support his case. Dr. Maurice Rosenbaum, a Consultant Cardiologist and Professor Myers, head of the Department of Vascular Surgery, Monash Medical Centre and Clinical Associate Professor of Surgery Monash University. Each witness was cross-examined on his report which was tendered in evidence. In his report Dr. Rosenbaum stated:
"The causation of the aortic stenosis is difficult to define and can be regarded as having two major possible causes -
a.A degenerative condition often superimposed on an abnormal aortic valve. Degeneration occurs associated with the development of atherosclerosis in the area of the valve.
b.Rheumatic fever and rheumatism.
There is a plausible hypotheses linking the throat infection during military service to rheumatic activity and thus, to aortic stenosis in this patient.
If this is to be pursued, then one may find supporting evidence in the form of abnormality of the aortic valve and abnormality of other valves - while reference is made to the fact that the mitral valve is normal in the documentation, an appropriate course in this patient would be to do an echocardiogram or to review the available echocardiograms to attempt to assess the cause of the aortic valve disease, both by its nature and by associate valve lesions.
If it is not accepted that the valve lesion was due to rheumatic disease, then it is likely that it can be regarded as predisposed to by cigarette intake through the mechanism of acceleration as a result of smoking causing atherosclerosis."
In his evidence Dr. Rosenbaum was not able to identify the fever the applicant experienced but expressed a view that a possible sequence was streptococcal infection which could have led to rheumatic fever which may lie dormant and cause damage to the aortic valve thereby leading to calcific aortic stenosis. In cross-examination Dr. Rosenbaum explained his evidence:
Right. And when you say - you said that the rheumatic fever could lie dormant for years, you do not think then it is - well, are you saying then it is probable that it could have existed for at least nearly 50 years, 40 years?---I will clarify this and I thank you. There are three processes. Process 1 is the sore throat ---
Right?---with the streptococcal infection. Process 2 is an inflammatory process within the tissues that most commonly has symptoms of fever, joint pains, etcetera, but can have very few symptoms or no symptoms that goes on for a period of weeks or months and then disappears; and process 3 is years later, the appearance of narrowing or leakage through one of the heart valves, and that can occur years later as a result of the initial, unnoticed damage at the time of the initial sore throat and its immediate subsequence.
Right. What of the fact that the veteran gave evidence that as a pilot he obviously had to undergo thorough medical examinations at least six monthly and then he said the ones with regards to heart as he got older were increased, I think from every five years to almost annually. Is not it surprising that something like rheumatic fever was not ever picked up in any of those examinations?---Something like the effect of rheumatic fever on the heart valve?
Right?---It is unusual and it is - it must be conceded that if it was not picked up then it's unusual but it does not eliminate the hypothesis or make it fanciful and very often people have heart murmurs that are just simply passed over as irrelevant, even in pilots.
Right. Okay. So the fact that Mr. Winch's heart murmur was not diagnosed until about the mid 1908s - are you saying that it possibly could have been present earlier, just not diagnosed?---Two things, It may not have been present or it may have been present earlier; not noticed, not diagnosed, nor revealed or not investigated.
......
Right. But how definite - well, how - you say, it is - you are going on hypotheses; how definite can you be that this is, in fact or that the sore throat, the one episode of sore throat in 42 plus the three to four days of fever was in fact rheumatic fever or in fact led to rheumatic fever which then much later led to the heart condition?---I cannot be definite.
Professor Myers gave evidence that supported but did not really add to the views of Dr. Rosenbaum. He described the connection between the tonsillitis and the fever with the aortic condition as a "distinct possibility" although the "less likely" of the possible causes put forward. Although the AAT referred to the fact that Professor Myers gave evidence it did not refer specifically to the evidence given by him. It was submitted that as a consequence the AAT erred in law in failing to consider the evidence of Professor Myers as part of the material before it.
A court does not readily infer that a tribunal failed to discharge its duty by not considering material merely because the detail of it was not expressly referred to in its reasons for decision: see Steed v. Minister for Immigration and Ethnic
Affairs (1981) 37 ALR 620 at 621. In the present case I am not satisfied that the AAT did not consider the evidence as part of the material before it. The AAT referred to the fact that Professor Myers gave evidence. It dealt with the substance of the evidence given by reference to the evidence on the same issue given by Dr. Rosenbaum rather than by Professor Myers. Having regard to the absence of any significant distinction between the evidence given by each of the witnesses and the fact that under s.120 little may turn on whether expert evidence is given by one or two experts, I am not satisfied that the AAT did not consider the evidence of Professor Myers. Further, even if it failed to properly consider that evidence I would not be satisfied that the failure could have made any difference to the result.
Evidence was given on behalf of the respondent by Dr. J.J. Hammond a specialist in cardio-vascular disease. Dr. Hammond's evidence explained but did not dispute the "possibilities" raised by Dr. Rosenbaum and Professor Myers. In that regard Dr. Hammond's evidence was not really in conflict with the medical evidence called on behalf of the applicant. Rather, Dr. Hammond's conclusion was that the material raised no more than a mere possibility of a connection between the war-time illnesses and the aortic stenosis.
The AAT in its decision discussed Dr. Hammond's evidence in the following paragraphs:
Dr. Hammond, when referred to the service medical record of Mr. Winch's admission with "Acute Tonsilitis" (sic) in 1942 (T3), noted
the absence of any reference to puss being present in the throat. He made the point that in a bacterial infection it is much more likely that puss would be present. He concluded that the sore throat experienced by Mr. Winch is much more in keeping with a viral sore throat. He based this view on the simple treatment provided, and made the further point that, had it been a bacterial infection, he would have expected a much more serious illness extending over possibly seven or ten days.
Dr. Hammond also commented on Dr. Rosenbaum's view that "there is a plausible hypothesis linking the throat infection during military service to rheumatic activity and thus, to aortic stenosis in the patient". It was again Dr. Hammond's opinion that what Mr. Winch had experienced was a sore throat, adding that:
"Now, really, in patients with rheumatic fever who suffer from rheumatic carditis sufficient to cause involvement of the heart valves, one typically will see a serious illness where patients have a severe malaise, they are unwell, general symptoms of fatigue. They feel unwell and they have a fever characterised by quite high swinging fever which might persist for several weeks."
In 1986 Mr. Winch was diagnosed with a heart murmur, some forty years after his treatment for his "Acute Tonsillitis" in 1942. In addressing the question of whether there might be a relationship between the murmur and the rheumatic fever, Dr. Hammond stated as follows:
"Now, if significant inflammation of the aortic valve due to rheumatic fever had occurred, there is set into place a progressive illness with gradual scarring, if you like, on the valve. And again, most typically this will progress in a - a fashion that is relatively aggressive and that one would really, within a period of usually five years, but - but I would think almost certainly within ten years, one would expect to see some cardiac findings on examination."
As was pointed out by Ms. Zajacek, Mr. Winch gave evidence that during his period of employment with TAA he was required to undergo six-monthly medical examinations, as well as regular acoustic and electro-cardiographic tests. These latter tests were initially at four yearly intervals, but after reaching a certain age the examinations were conducted every two years, later becoming annual. Dr. Rosenbaum stated that it was unusual that a heart murmur, if present, was not detected during Mr. Winch's employment, and Dr. Hammond made the comment that the murmur of aortic stenosis is the easiest murmur for an unskilled person to detect.
In view of the regular medical examinations undertaken by Mr. Winch it was the respondent's submission that it is extremely unlikely that a heart murmur was present prior to the detection in 1986. We agree with the submission and note Dr. Hammond's view that the occurrence of a heart murmur at about sixty years of age would be very much in keeping with a history of degenerative calcific aortic stenosis. Indeed, he concluded as follows:
"So, in summary, really, at each step along the way in order to really suggest that this particular case, if you like, or the case of Mr. Winch is one of rheumatic fever, one has to really extend the bounds of possibility to the extreme. And when one has to do that in a sequence of four or five times, then really to my mind that stretches the bounds of credibility just a little too far to make this a reasonable hypothesis."
In order to understand Dr. Hammond's conclusion it is necessary to consider the evidence of Dr. Hammond which preceded it. In substance, after reviewing the applicant's medical history, Dr. Hammond found nothing in it which supported or was consistent with the hypothesis which was put forward on behalf of Mr. Winch. It was in that context that he concluded that whilst he could not discard the hypothesis as a possibility it was merely that.
The AAT's opinion - the rheumatic fever hypothesis
The AAT was to form an opinion on whether the material before it did not raise a reasonable hypothesis connecting the calcific aortic stenosis with the tonsillitis and fever suffered by Dr. Winch during the war. The question was one of fact for the AAT to determine after considering all of the material. The AAT was not to:
choose between competing hypotheses or to determine whether one medical or scientific opinion was to be preferred to another
but was:
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: see Bushell at 415.
In my view the AAT discharged its duty in the manner set out in the passages I have cited from Bushell. This is not a case where the AAT was required to choose between competing hypotheses based on conflicting or opposing medical opinions on a question of "fact": Cf Jenkins v. Repatriation Commission (1996) 137 ALR 729 at 738-9. To the contrary, there was little
if any conflict between the witnesses on the underlying medical "facts"; they basically agreed on the process by which rheumatic fever may lead to aortic valve damage. The disagreement related to the possibility of that process having occurred in the present case in the light of the applicant's detailed medical history.
It was clearly open to the AAT on the material before it to arrive at the conclusion that the hypothesis put forward in the present case was at the extreme end of the possibilities. In the circumstances it was also open to the AAT to form the opinion that the material did not raise a "reasonable" hypothesis connecting the applicant's wartime illnesses with his aortic stenosis. Although "untenable" was an inappropriate word for the AAT to use in respect of the "possibility", I take the AAT as intending to mean no more than that the applicant's hypothesis was "untenable" as a reasonable hypothesis connecting the aortic stenosis with Mr. Winch's service. No error of law has been demonstrated in relation to that conclusion.
The applicant also submitted that the AAT failed to set out its reasons in the manner required by law: see McCauliffe v. Secretary Department of Social Security (1992) 28 ALD 609 at 616-617 and Australian Telecommunications Commission v. Barker (1990) 12 AAR 490 at 492-3. Applying the principles set out in those decisions I do not accept that any such failure has been established in the present case.
The AAT's opinion - the smoking hypothesis
A problem has arisen in the present case in relation to the manner in which the AAT dealt with the smoking issue.
At the outset it is necessary to examine the material before the AAT on that issue. The material included a report of Dr. William F. Ryan Consultant Cardiologist relating to the applicant's coronary artery disease which contained the following conclusion:
I believe the carcinoma of the larynx that Captain Winch developed which doubtless was also caused by cigarette smoking has been accepted as a disability. On the same basis then I believe that his coronary artery disease likewise should be accepted. Coronary disease is of course a progressive condition with a sub-endothelial plaque developing and then progressing over the years. Capt. Winch's initial coronary disease if likely to have commenced many years ago. Dr. Costello has also referred to the effects of transient hypertension associated with stress as also a possible factor in the development of coronary artery disease.
My view then is that the coronary disease process that is evident here began many years ago and was almost certainly cigarette-related which in turn was service-related. (Emphasis added).
In addition to his report Dr. Rosenbaum stated that if the fever hypothesis was not accepted then the valve lesion "can be regarded as predisposed to cigarette intake through the mechanism of acceleration as a result of smoking caused atherosclerosis". In addition Dr. Rosenbaum gave the following evidence:
Leaving that possibility aside, doctor, in your report you also indicate that there may be a predisposition to damage to the valve by virtue to the mechanism of smoking?---Yes.
How - can you explain to the tribunal how that occurs?---Smoking predisposes to arterial disease, that is, a thickening, if you like, of the arterial wall, and this process can affect the aortic valve, leading to a thickened aortic valve with narrowing.
Now, it is possible in the case of Mr. Winch that both those two processes were at work and caused this --- ? ---It is possible that one or remotely possible that both processes were at work.
Yes. Well, certainly the smoking one appears to be a fairly well established one. Is that correct?---Both of these are defined means by which the aortic valve can be narrowed. They are basically reasonably established within the medical conventional wisdom. The effect of rheumatic fever on the aortic as - I mean it in that sense that it's in the text books. The effect of smoking, producing atherosclerosis and its effect on the aortic valve can be regarded as probable.
Objection was taken on behalf of the respondent to the medical evidence relating to smoking on the basis that Mr. Winch had not given any direct evidence in relation to his smoking. The following discussion occurred:
COMM GIBBS: Well, I was going to ask actually whether the smoking aspect was in issue.
MS ZAJACEK: As far as the respondent was concerned, this aspect had not really been raised by the applicant and had not really been put forward as a contention, and given that no evidence had been taken from the veteran as to smoking.
COMM GIBBS: Well, I think it is talked abut in the statement of case, is not it?
MS ZAJACEK: Oh, obviously, yes, and it is in the reports but given that he did not give any evidence this morning ---
COMM GIBBS: Well, perhaps we can come back to - I mean, we cannot do anything other than come back to it later on.
MS ZAJACEK: Yes, it is just - obviously.
MR DE MARCHI: I assume, sir - perhaps if I may assist my friend, that in fact the ischaemic heart disease had been accepted because of the extensive smoking history had been provided.
MS ZAJACEK: that may be so, but given that this is a separate proceeding now leading on the entitlement for a separate condition, we would believe that separate evidence would need to be raised as to smoking, and given that there was none from the veteran this morning.
The discussion concluded as follows:
MS ZAJACEK: Yes. Well, in fact, not even a 42 at this stage, given that it is more than we have offered impairment ratings on the basis of our GARP examination and a CIA and that if you would look - I can direct you to the last page of our statement of case and it is there that we, in fact, formally ask that the tribunal then accept that it is was caused.
MR DE MARCHI: Sir, the---
COMM GIBBS: But it must have been war - it must have been conceded on the basis of something.
MR DE MARCHI: Yes, sir, it is contained, I think, in the decision of the Veterans Review Board at page 61. There is a considerable - 60 and 61, the smoking history of the veteran is outlined, and I think possibly the statement of principles might have been consulted by the department, given that history, and, on the basis of that smoking history the ischaemic heart disease was conceded.
COMM GIBBS: But not by the Veterans Review Board?
MR DE MARCHI: But not by the Veterans Review Board.
COMM GIBBS: No. Well, we just do not know, do we, at the moment. Well, I think all we can do is ask Mr. Winch some questions later on about his smoking history.
MS ZAJACEK: Right. Okay. (Emphasis added).
Unfortunately no further questions were asked of Mr. Winch about the matter.
The material before the AAT discloses that the Commission had accepted that the applicant's war-caused smoking led to both his carcinoma of the larynx and coronary atherosclerosis and treated those facts as entitling the veteran to a pension under the Act. There was nothing surprising about the acceptance of smoking as war-caused as the decisions of the delegate of the Commission and of the Board which were part of that material appeared to accept that the veteran's stressful service led to his heavy smoking habit.
Further, the evidence of Dr. Rosenbaum was that it was likely that smoking contributed to the aortic stenosis of the veteran if the rheumatic fever hypothesis was not accepted.
The AAT's reasons for decision considered the smoking issue. The AAT's statement that it was satisfied that the concession in relation to coronary atherosclerosis was "properly made" and its consequential decision to determine that the condition is "war-caused" can only be taken to mean that the AAT was satisfied that the condition had been caused by smoking arising from the particular war service of the veteran. There could be no other rational explanation for the AAT's statement and decision.
Later in its reasons for decision, the AAT referred to part of the material before it in paragraph 26 of its decision stating:
While no evidence was given at the hearing as to whether Mr. Winch had a history of smoking, the material before the Tribunal indicates that he commenced smoking at the age of fifteen years and that he continued to smoke up to some twenty cigarettes per day while on service. It also appears that he continued to smoke post service until 1947 when he ceased the habit due to brachial neuritis. He appears to have later resumed smoking, in 1950, but abstained for various periods before finally ceasing in 1970.
I say "part" of the material as other parts of the material disclosed matters that pointed to the applicant's heavy smoking habit as being war-caused.
The AAT's conclusion was as follows:
From the whole of the material before us we find that the facts raised by that material do not give rise to a reasonable hypothesis connecting Mr. Winch's calcific aortic stenosis with the circumstances of his particular service. The hypothesis relied upon is untenable and therefore not reasonable. We should make it clear that our finding takes into account our understanding of what may have been Mr. Winch's smoking habit. However, as we have indicated at paragraph 26 above, no evidence was given at the hearing concerning the habit, or any relationship or relevance it may have had with Mr. Winch's war service. (Emphasis added).
The AAT addressed and disposed of the alternative hypothesis based on smoking solely by reference to the evidence given by Mr. Winch at the hearing rather than by reference to the "facts" raised by or from all of the material before it. Indeed, as the discussion in the course of the hearing to which I have referred above demonstrates, the reference to the evidence "given" in truth is a reference to the evidence not given by Mr. Winch. He did not give that evidence as he was not asked the questions which Commander Gibbs indicated he would be asking of Mr. Winch "later on about his smoking history".
The problem was that Mr. Winch's solicitor, Mr. De Marchi, stated he was relying upon the fact that before the AAT, the Commission had accepted that smoking was a war-caused event in respect of the arterial disease and accordingly there was no need for his client to go into evidence on that issue. Also, the material before the AAT pointed to smoking as being war-caused. Accordingly, there was material before the AAT which in my view pointed to or raised the requisite connection but which was not considered by the AAT in relation to the smoking hypothesis.
In that regard the AAT erred in law. I am of the view that the finding relied upon by the AAT in its conclusion on the absence of a connection between the aortal stenosis and smoking could only have been arrived at in the present case by reference to only part of the material: see Owens at 14.
If, contrary to my conclusion, the AAT considered all of the material but disregarded some of it as not being "evidence" upon which it could act, then in imposing such an evidentiary onus and standard the AAT erred in law. The AAT appeared to erroneously approach the smoking issue as one in which the applicant carried an onus to establish his case by giving direct evidence on that issue. Although the AAT appeared to be satisfied on the material that the arterial disease was war-caused by smoking, it appeared to require direct evidence of causation of the same matter to be given by Mr. Winch in respect of his aortal stenosis. The AAT clearly set a higher standard for the facts to be established as "raised facts" and for the testing of the hypothesis than is contemplated by s.120(1) and (3): see Bushell at 414, Byrnes at 569-70 and Lowerson at 260.
I should add that it may well be that the course followed by the AAT in deciding the smoking issue in the manner it did may have denied procedural fairness to the applicant. However, it is unnecessary to decide that question.
The decision involved an error of law in relation to the smoking issue and that aspect of the matter ought to be remitted back to be determined by the AAT in accordance with law. As the matter is to be remitted in respect of the claim based on aortal stenosis it is preferable that I do not deal with the s.24 issues raised in the present hearing but leave those matters to be reconsidered by the AAT in the light of any further evidence adduced and submissions made at the further hearing. The Commission's submissions to the AAT accepted that a finding that the aortic stenosis was war-caused would affect the pension payable to the veteran.
The appeal is allowed and the decision of the AAT is set aside. The matter, except in so far as it concerns the hypothesis connecting the tonsillitis and fever suffered by the veteran during his war service with his calcific aortic stenosis, is remitted to the AAT for its determination in accordance with law.
The parties are to be at liberty to adduce further evidence and make further submissions to the AAT on the remitted hearing.
Although the applicant has not succeeded in respect of the whole of his claim he has succeeded in obtaining the remission back to the AAT sought by him. In all of the circumstances it is appropriate that the respondent pay the applicant's costs of and incidental to the appeal.
I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel
Associate:
Date:
Heard:16 September 1996
Place:Melbourne
Judgment:9 October 1996
Appearances: Mr. D. De Marchi of the firm of De Marchi & Associates appeared for the applicant.
Mr. P. Hanks instructed by the Australian Government Solicitor appeared on behalf of the respondent.
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