Woodman, James Stanley v Repatriation Commission
[1997] FCA 488
•6 JUNE 1997
CATCHWORDS
DEFENCE AND WAR - Veterans' Entitlements - War-caused disease - Reasonableness of hypothesis of connection with circumstances of war service - a question of fact - Whether Administrative Appeals Tribunal can resolve question by accepting one medical opinion and rejecting another
Veterans' Entitlements Act 1986 (Cth) ss 9(1), 120(1), 3
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Stares (1966) 60 FCR 594
Owens v Repatriation Commission (1995) 59 FCR 559
Repatriation Commission v Owens (1996) 70 ALJR 904
JAMES STANLEY WOODMAN v REPATRIATION COMMISSION
VG 18 of 1997
Northrop, Davies and Ryan JJ
6 June 1997
Melbourne
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 18 of 1997
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: JAMES STANLEY WOODMAN
(Appellant)
AND: REPATRIATION COMMISSION
(Respondent)
CORAM: Northrop, Davies and Ryan JJ
DATE: 6 June 1997
PLACE: Melbourne
MINUTES OF ORDER
THE COURT ORDERS:
That the appeal be dismissed.
That the appellant pay the respondent's costs of the appeal, such costs to be taxed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 18 of 1997
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: JAMES STANLEY WOODMAN
(Appellant)
AND: REPATRIATION COMMISSION
(Respondent)
CORAM: Northrop, Davies and Ryan JJ
DATE: 6 June 1997
PLACE: Melbourne
REASONS FOR JUDGMENT
THE COURT: This is an appeal from a judgment of a single Judge of the Court dismissing an application by way of appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"). The appellant had enlisted in the Australian Army in August 1941. During service in New Guinea he experienced a severe pain in his lower back while helping to lift a hospital patient who was encased in a plaster cast. The appellant had experienced low back pain ever since and, in 1991, a delegate of the respondent determined that his "lumbar spondylosis" had been war-caused. However, the same delegate determined that the appellant's rheumatoid arthritis, symptoms of which he had noticed in his limbs for many years, had not been war-caused.
The Tribunal was required to consider whether the material before it disclosed a reasonable hypothesis connecting the appellant's rheumatoid arthritis with his war service. That it understood its task in this way is made clear by paragraph four of its reasons where it was observed:
Pursuant to the provisions of s.120(1) of the Act, the Tribunal is required to determine the veteran's disease as war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be satisfied beyond reasonable doubt if, after considering the whole of the material before it, that material does not raise a reasonable hypothesis connecting the disease with the service rendered by the applicant (s. 120(3) of the Act).
Two hypotheses were propounded as supporting the necessary connection, both of them advanced by Dr MacKay, a medical researcher at the Centre for Molecular Biology in Medicine at Monash University, who has specialized in immunology for many years. The first hypothesis was that "since the aetiology of rheumatoid arthritis is unknown and its manifestation at an early stage is non-specific, but may include aches and pains," there was a connection between pain suffered by the applicant following the hospital incident and the onset of the rheumatoid arthritis condition. The second hypothesis which was expressed to be quite independent of the first was that there was a connection between auto-immune diseases, of which rheumatoid arthritis may be one, and malaria which the appellant had suffered in the course of his war service. The Tribunal's summary of the evidence tending to establish this second hypothesis was in these terms:
In his report (exh B), Dr MacKay identifies three ways in which provocative infections could initiate autoimmunity. One way was through a person suffering from chronic infection caused by a persisting pathogenic organism. Malaria was such an organism which,
in the instant case, since it occurred over a number of years, could be regarded as being persistent and could have caused a derangement of the applicant's immunological function predisposing him to autoimmunity. Dr MacKay referred to literature on the subject (including an article by Abu Shakra and Shoenfeld in Autoimmunity 1991; 9:337-44), which led him to conclude that there may be the possibility of a connection between autoimmune disease and malaria. He did not state that the literature established a direct connection between malaria and rheumatoid arthritis. A copy of the article was provided to the Tribunal by Mr De Marchi after the hearing. The Tribunal notes that the authors discuss mainly the association between autoimmunity and infections with five diseases including malaria. In the section devoted to malaria, they refer specifically to only one - systemic lupus erythematosus - of the many autoimmune diseases. The authors state that "the clinical significance of the antibodies in malaria is not known". They conclude by saying, inter alia, that the specific association between infection and autoimmunity is still obscure.
A second medical practitioner, Dr Hall, a specialist rheumatologist, rejected both hypotheses, characterizing the second as "totally speculative and without any foundation". The Tribunal declined to adopt the first hypothesis as reasonable observing:
in the absence of any evidence connecting rheumatoid arthritis with trauma or with lower back pain and with positive evidence excluding both as a possibility, the Tribunal is satisfied beyond reasonable doubt that Dr MacKay's first hypothesis is not able to be supported on the material before it.
The Tribunal also preferred Dr Hall's evidence in reaching a conclusion in respect of the second hypothesis that "Dr MacKay's conclusions are too remote to be regarded as `reasonable'".
The learned primary Judge conducted an extensive review of Dr MacKay's oral evidence and concluded:
If (as may I think be doubted) Dr. MacKay was propounding what he called "a non-inconceivable possibility" as a "reasonable hypothesis", within the meaning of that expression in s.120(3) of the Act, the "opposing material" to which the Tribunal referred to paragraph 12 of its reasons for decision in my opinion justified its factual conclusion that the hypothesis was too tenuous to be accepted as reasonable. It is perhaps regrettable that Dr. MacKay was not given the opportunity to express in evidence his opinion upon the
evidence summarised in sub-paragraph 12(a) of those reasons. But there was no suggestion that the applicant's counsel was denied the opportunity to adduce that evidence by re-calling Dr. MacKay.
Accordingly, his Honour dismissed the appellant's application.
On the hearing of the present appeal, it was argued, first, that the Tribunal and the learned primary Judge had misapplied what was called the legal test directed by ss 9 and 120(1) and (3) of the Veterans' Entitlement Act 1986 ("the Act"). Section 9 of the Act defines the circumstances in which an injury suffered, or a disease contracted, by a veteran shall be taken to be war-caused. Section 120 imposes evidentiary standards for determining whether the circumstances indicated in s. 9 have been established by providing:
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.
...
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.
Mr De Marchi, who appeared for the appellant, submitted that the Tribunal and the primary Judge had erred in law in failing to assess the reasonableness of the hypotheses in the way indicated by the High Court (Mason CJ, Gaudron and McHugh JJ) in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 where it was observed:
The position may be summarized 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.
In our view, in indicating in that passage that "proof of facts is not in issue at this point" their Honours are not to be taken as suggesting that the reasonableness or otherwise of the hypothesis is not a question of fact or at least of value judgment. Rather they were recognizing that the factual investigation ordained by s. 120 is a two-stage process. The first stage involves an examination of the reasonableness of the hypothesis of the kind propounded in the present case as a general medical theory. The second stage requires consideration of whether the propounded hypothesis is available in light of the facts proved to pertain to the particular applicant veteran. The approach to be taken to what we have called a two-stage process of factual investigation was outlined in the joint judgment of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408, where it was said, 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. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc, of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. Thus in, Commissioner for Government Transport v. Adamcik (1961) 106 C.L.R. 292, this Court held that there was reasonable evidence to support a claim for damages that emotional disturbance, brought on by an accident, had caused acute lymphatic leukaemia even though only one doctor supported the claim, others rejected it, and there was evidence that for nearly twenty years the medical literature had discarded earlier suggestions that some cases of leukaemia had been the result of trauma. Windeyer J. said ibid., at p. 306:
"The most that could be urged against Dr. Haines' evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others; not that it can be scientifically established as false."
However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature" ibid., at p. 306. Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous" East v. Repatriation Commission (1987), 16 F.C.R. 517, at p. 532.
But leaving aside cases of those kinds, 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 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 connexion 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.
See also Repatriation Commission v Stares (1966) 60 FCR 594 where another Full Court of this Court observed at 601:
The question s. 120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran's injury with war service: see Byrnes' case at 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.
The submissions put by Mr De Marchi for the appellant adopt a like approach to that adopted by the majority of the Full Court in Owens v Repatriation Commission (1995) 59 FCR 559. In Repatriation Commission v Owens (1996) 70 ALJR 904, the High Court, although refusing special leave to appeal, said in clear terms that the approach was wrong. Brennan CJ, Gaudron and Gummow JJ said:
A majority of the Full Court allowed an appeal from Lockhart J but their Honours seemed to have misunderstood the nature of the issue arising under s 120(3). It is not whether an hypothesis of 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.
In the present case, the evidence of Dr Hall went further than showing that there were opinions to the contrary of that held by Dr MacKay. The effect of Dr Hall's evidence was to destroy Dr MacKay's hypotheses as reasonable hypotheses.
Indeed, the first hypothesis put forward did not satisfy s. 120(3) because it was not an hypothesis of a relevant connection between the rheumatoid arthritis and war service but merely an hypothesis that the pain suffered by the veteran during his war service may have reflected a rheumatoid arthritic condition. The second hypothesis, that tracing Mr
Woodman's rheumatoid arthritis to the malaria he contracted in New Guinea, was a theoretical possibility of the weakest sort. Dr MacKay himself put it forward only as a "non-inconceivable possibility". The Tribunal was entitled to accept Dr Hall's evidence that, having regard to the fact that rheumatoid arthritis is a very common disease in Australia and has not been linked to malaria, the hypothesis was "totally speculative and without any foundation". The Tribunal was entitled to reject the hypothesis as a reasonable hypothesis.
We agree with the learned trial Judge that, even if Dr MacKay had propounded his "non-inconceivable possibility" as a "reasonable hypothesis", which may be doubted, the opposing material to which the Tribunal referred justified its factual conclusion that the hypothesis was too tenuous to be accepted as reasonable.
The appeal should be dismissed with costs.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of the Court.
Associate:
Date:
Counsel for the Appellant : Mr D De Marchi
Solicitors for the Appellant : De Marchi & Associates
Counsel for the Respondent : Mr N. Green
Solicitors for the Respondent : Australian Government Solicitor
Date of Hearing : 3 June 1997
Date of Judgment : 6 June 1997
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