FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Knight [2012] FCAFC 83

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

The Court:

1    In this case the Administrative Appeals Tribunal decided that the respondent, Mrs Knight, should be granted a widow’s pension because the death of her husband, Mr Knight, had been war-caused: Knight v Repatriation Commission [2011] AATA 496. The Repatriation Commission appeals to this Court from that determination.

2    Mr Knight died on 9 July 1998 then aged 51 from a myocardial infarction. The Tribunal below found that during operational service in the Royal Australian Navy in the Far East and Vietnam during 1964-1968 and thereafter during eligible defence service between 1972-1974 (also in the Navy), Mr Knight had served in enclosed spaces where he was exposed to visible environmental tobacco smoke. The Tribunal accepted the evidence of Commodore AHR Brecht (Retired) who estimated that during his operational service Mr Knight had been exposed to 1,112 hours of environmental tobacco smoke and a further 6,358 hours of exposure during other service on ships (part of which was eligible service). Mr Knight was at all times a non-smoker. The case, in short, was one of passive smoking.

3    Mr Knight had finished the relevant periods of service in 1974. In the period between that time and his death in 1998 he had continued, in various ways, to be exposed to environmental tobacco smoke. The Tribunal found, on the basis of the expert opinion of Dr Butler, that there had been a likely clinical onset of ischaemic heart disease in 1996 which was – and this should be emphasised for reasons which will become apparent later – within five years of his death in 1998.

4    The Tribunal was required to accede to Mrs Knight’s application for a widow’s pension if Mr Knight’s death ‘was war-caused’: s 13(1)(a), Veterans’ Entitlements Act 1986 (Cth) (‘the Act’). By s 120(1) the Tribunal was required to conclude that Mr Knight’s death was war-caused unless it was ‘satisfied, beyond reasonable doubt, that there [was] no sufficient ground for making that determination’. Section 120(3) prescribed the circumstances in which the Tribunal could be satisfied beyond reasonable doubt that there was no sufficient ground for such a conclusion. These were that the Tribunal was of the opinion, after a consideration of all of the material before it, that that material did ‘not raise a reasonable hypothesis connecting the…death with the circumstances of the particular service rendered by the person’. Which hypotheses of connexion are reasonable and which are not is precisely prescribed by s 120A(3) which provides that a hypothesis is reasonable if there is in force a delegated instrument known as a ‘Statement of Principles’ that ‘upholds’ the hypothesis.

5    The Act therefore required the Tribunal to ask whether the material before it raised a reasonable hypothesis connecting the veteran’s service to his death and to answer that question by locating such a hypothesis, if possible, within a Statement of Principles which upheld it. Consistently with the meaning of the word ‘hypothesis’ this inquiry was not to involve the Tribunal in fact-finding about the material before it. Instead, the Tribunal was simply to examine that material to see if such a hypothesis might reasonably be drawn from it.

6    Mrs Knight’s case was that the material before the Tribunal gave rise to a reasonable hypothesis connecting Mr Knight’s death from ischaemic heart disease to his service and that such a hypothesis was supported by the ‘Statement of Principles concerning Ischaemic Heart Disease’ No 89 of 2007. The requirements of the Statement of Principles were twofold. First, cl 6 contained a list of many factors which were accepted by the Statement as being causes of ischaemic heart disease. One of these factors was (cl 6(i)):

being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease, where the last exposure to that atmosphere did not occur more than five years before the clinical onset of ischaemic heart disease

In the interests of economy and clarity, we shall refer to this factor as ‘exposure to tobacco smoke’.

7    Secondly, the mere occurrence of a factor was not sufficient. Clause 5 also required that the factor be related to the veteran’s service (‘Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service’). The concept of being ‘related to service’ was dealt with in s 196B(14) of the Act which provided that a factor contributing to death would be ‘related to service’ if, inter alia, ‘it was contributed to in a material degree by, or was aggravated by, that service’: s 196B(14)(d).

8    There were therefore two discrete issues at play when the Tribunal came to consider whether there was a reasonable hypothesis. The first was the determination of whether the material before the Tribunal pointed to the factor relied upon (i.e. exposure to tobacco smoke: cl 6(i)). The second was to ask whether the material also pointed to that factor having been contributed to in a material degree, or aggravated by, the veteran’s service (that is, the question posed by cl 5 of the Statement and s 196B(14)(d)).

9    The Tribunal determined the first question favourably to Mrs Knight and expressed itself this way at [29]:

In the Tribunal’s view, the facts raised by the Applicant point to Mr Knight being in an atmosphere with a visible tobacco smoke haze in an enclosed space for more than 1,000 hours during his operational service.

10    Given the evidence of Commodore Brecht this conclusion was unsurprising and, indeed, was not in dispute before the Tribunal. As to the second question the Tribunal reasoned this way at [38]:

However, with regard to s 196B(14)(d), in the Tribunal’s view the facts raised do point to Mr Knight’s operational service contributing in a material degree to his death as a result of ischaemic heart disease, noting, in particular, that he more than meets the threshold required by factor 6(i) of “being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease”. The Tribunal also notes that Mr Knight’s exposure to visible tobacco smoke haze while on board ship was likely to have been for close to 24 hours a day, rather than for the working day during his employment in the Department of Defence or, while he was working as a bricklayer, usually for shorter intense periods undertaking interior work or meeting with others at the pub.

(Emphasis in original.)

11    The Repatriation Commission’s appeal challenges this conclusion. The practical reasons why it might chose to do so are perhaps tolerably clear. Mr Knight’s exposure by the Navy to tobacco smoke ended no later than 1974. The evidence before the Tribunal rather suggested that his subsequent history of employment had also placed him in smokey environments (as was very common in this country into the 1980’s) and, viewed from this perspective, it is not difficult to understand the Repatriation Commission’s concern that the role played by Mr Knight’s service in the development of his ischaemic heart disease might not have been the dominant one.

12    That issue, however, is not one this Court is called upon to resolve. Instead the questions to be resolved are the Repatriation Commission’s challenges to the lawfulness of the Tribunal’s reasoning at [38] above. There were five such challenges. An unnotified sixth matter was pursued at the hearing.

First issue: erroneous consideration of connexion between service and death

13    The first challenge took issue with the first sentence of [38] (set out above at [10]). There is no doubt, as the Repatriation Commission correctly observed, that this sentence literally suggests that the Tribunal asked itself whether Mr Knight’s service materially contributed to ischaemic heart disease. Nor is it to be doubted that this is not the inquiry required by s 196B(14)(d) which seeks to discern a connexion not between the service and the veteran’s disease or death but instead between the service and the factor (here exposure to tobacco smoke). The Court has already held, in this very case, that it is an error to inquire into whether there is a connexion between service and death and that the statutory inquiry is whether there is a connexion between service and the posited factor: Knight v Repatriation Commission (2010) 52 AAR 547; [2010] FCA 1134 at [47] per Katzmann J. As Katzmann J explained in the earlier decision the difference can be critical. In this case it is the difference between asking (incorrectly) whether Mr Knight’s service in the Navy contributed to his death and asking (correctly) whether his service in the Navy contributed to his exposure to tobacco smoke.

14    In our opinion, however, whilst it is true that the Tribunal did err in law in approaching the matter in this way this error is not material to the outcome of the case. For the reasons which follow, the Tribunal’s factual finding that the veteran had been exposed to tobacco smoke during operational service determined the matter inevitably in Mrs Knight’s favour.

15    The inquiry demanded by s 196B(14)(d) in relation to material contribution &c. is significantly different to the usual questions of that kind which arise in ordinary personal injury litigation. In most personal injury litigation contexts the question of material contribution will arise in a domain where what is sought to be discerned is some species of causative connexion between an ailment (which the claimant alleges he or she has) and an event or situation for which the claimant seeks compensation. A typical example of this kind of situation was afforded by the former s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which defined a ‘disease’ as an ailment ‘that was contributed to in a material degree by the employee’s employment by the Commonwealth’.

16    Section 196B(14) is quite different because its focus is on the connexion between the employment (that is, in this context the veteran’s service) and the ‘factor’ specified in the relevant Statement. On occasions, this can generate confusion. That confusion can arise because of the conceptually malleable nature of a ‘factor’, its intermediate role in the elaborate apparatus of s 196B and because the ultimate causal questions posed by s 196B(14) do not seek to determine whether the operational service caused the death or disease. In many ways, this is a counterintuitive posture for the Act to adopt but it is an inevitable consequence of seeking to specify in advance, through the system of statements of principles, the outcome of various – often controversial – medical issues of causation. To give perhaps a simplistic example, if the relevant Statement specifies that exposure to Agent Orange is accepted to cause cancer then the issue is not, as it might be in ordinary personal injury litigation, whether the employment caused cancer, but rather whether the employment (i.e. service) caused exposure to Agent Orange. It is these intermediate events which are the ‘factors’ upon which the Act operates. It does so not only by way of specification though a Statement but also by way of causal inquiry under s 196B(14). By adopting that approach, complex as it is, the Act ensures that these at times controversial causation questions are determined in the same way in every case and without the need for the summoning of expert evidence on the issue in each hearing before the Tribunal.

17    Despite the centrality of the concept of a ‘factor’ to the operation of these provisions the Act does not define what a factor might be. It is true that by s 196B(2) a Statement of Principles is to set out ‘the factors that must as a minimum exist’ and also ‘which of those factors must be related to service rendered by [the] person’ but this does not take the matter very far.

18    Here then is the problem: the breadth of these requirements is such that a ‘factor’ may embrace not only a medical or psychological condition but may also include physical surroundings. The effect of that potential difference in the nature of factors redounds significantly when the inquiry is into whether the factor is related to service under s 196B(14). The present Statement shows this with some clarity. Some of the factors it specifies are diseases in themselves whilst others are situations or environments, such as exposure to tobacco smoke. On the disease front, cl 6(c) specifies as a factor ‘being obese for at least five years before the clinical onset of ischaemic heart disease’. The Statement accepts the soundness of the posited link between obesity and ischaemic heart disease but what it requires (through cl 5) is that the obesity be connected to service. Put simply, did service contribute to obesity?

19    Where the factor specified is itself not a disease but a situation, a less subtle inquiry is called for. In this case the factor was exposure to tobacco smoke. The question raised by s 196B(14)(d) (through cl 5) becomes, in that context, whether the service contributed to the exposure to tobacco smoke.

20    The Tribunal’s conclusion that Mr Knight’s death was materially contributed to by his service is an example of the precise trap thrown up by s 196B(14)(d). The error was, in all likelihood, exacerbated by the Repatriation Commission’s attempt in the Tribunal to define the expression ‘contributed to in a material degree’. This was done by reference to a decision concerned with the definition of ‘disease’ in s 4(1) of the former Safety, Rehabilitation and Compensation Act which, as noted above, required a causal link between ailment and employment, and not, as in this Act, between factor and service. At [33] the Tribunal said this:

However, the principal basis on which [Mrs Knight] contends there is a connection to service is s 196B(14)(d). Miss Henderson noted that the words ‘contributed to in a material degree’ have not been defined in the context of the Act. However, in relation to the use of similar words in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), she noted that in Comcare v Sahu-Khan (2007) 156 FCR 536, at 543, Finn J said that:

…

(i)    “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);

(ii)    whether this will be so in a given case will be a matter of fact and degree.

(Emphasis added.)

21    It is not difficult to see, in the light of the emphasised words, how the Tribunal ended up seeking a link between service and disease rather than service and the relevant factor.

22    However, the demonstration that the Tribunal committed this error cannot assist the Repatriation Commission. The Tribunal found as fact that Mr Knight had been exposed to the requisite amount of tobacco smoke during his operational service. To the correct question of whether his operational service materially contributed to that exposure there could be only one answer in light of that finding and this was that it had.

23    In that circumstance, whilst accepting that the Tribunal did make an error, it could not be material in light of its factual findings. The Statement accepts that there is a link between ischaemic heart disease and being exposed to tobacco smoke. The Tribunal found that Mr Knight had been so exposed during his operational service. In effect, that was the end of the matter. In that circumstance, there would be no utility in remitting the matter to the Tribunal where the result would have to be the same: Hill v Repatriation Commission (2005) 218 ALR 251 at 267 [83]; [2005] FCAFC 23 at [83] per Wilcox, French and Weinberg JJ. Subject to the Repatriation Commission’s remaining arguments, on the material before it the Tribunal’s decision was plainly correct despite this error.

Second issue: irrelevant considerations

24    The Commission’s second argument was that the Tribunal had taken into account an irrelevant consideration. This was its statement at [38] (set out above) that Mr Knight had been exposed to tobacco smoke for ‘close to 24 hours a day’. We agree that this was not a relevant matter. The only issue for it was whether the material pointed to the veteran having been exposed to 1,000 hours or more of environmental tobacco smoke (which it did) and whether his service contributed to this. The quantum of the daily exposure was not relevant. Again, however, this makes no difference. The Tribunal’s finding of fact that there had been 1,112 hours of exposure during operational service meant that the s 196B(14)(d) question could be answered only one way.

Third issue: findings on clause 6(i)

25    The third error relied upon by the Commission is that the Tribunal failed to make any findings relating to the second part of clause 6(i) (that is, the further requirement that ‘the last exposure to [an atmosphere with a visible tobacco smoke haze] did not occur more than five years before the clinical onset of ischaemic heart disease’). We accept that the Tribunal did not expressly consider this issue in its discussion at [38] (set out above at [10]). However, the full context of the Tribunal’s reasons shows that the Tribunal was well-aware of the need for the last exposure to occur within five years of 1996 when it concluded Mr Knight’s ischaemic heart disease had its clinical onset. The reasons for this are four. First, the Tribunal expressly considered the issue of when the clinical onset took place and, at [13], accepted the evidence of Dr Butler that it had occurred in 1996. Secondly, it was plainly aware that this conclusion meant that it had to consider the issue of last exposure in the five years preceding 1996. So much flows from [28]:

Of particular importance in this case is whether the material before the Tribunal points to the factor(s) that must as a minimum exist to support the hypothesis being related to the person’s service in accordance with s 196B(14). In this case, the relevant factor is factor (i) being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1,000 hours where, relevantly, the last exposure to that atmosphere occurred in the period 1991 to 1996.

26    Thirdly, the Tribunal recorded the Commission’s explicit submission on this issue at [40]:

[Counsel for the Commission] noted that factor 6(i) gives particular emphasis to the last exposure to an atmosphere of visible tobacco smoke haze occurring within 5 years of the clinical onset of ischaemic heart disease.

27    Fourthly, in response to that submission the Tribunal plainly examined this issue. At [41] it said this:

The Tribunal is not satisfied that the Commission has disproved beyond reasonable doubt any of the facts raised in order to support the hypothesis. While it is certainly true that some 28 years passed between Mr Knight’s operational service, which ended in 1968, and the clinical onset of his ischaemic heart disease in 1996, including, in particular, exposure to visible tobacco smoke haze over a long period while Mr Knight was working in the Department of Defence, the way in which factor 6(i) is to operate means this is not a barrier to liability under the Act. The Tribunal therefore concludes that Mr Knight’s death was war-caused and the Commission is liable to pay a widow’s pension to the Applicant pursuant to s 13(1) of the Act.

28    That statement needs to be read in the context of the evidence of the veteran’s son and wife that the veteran had been continually exposed to environmental tobacco smoke throughout his life ([17]-[22]) and also the Tribunal’s finding at [34]:

Mr Vincent contended that Mr Knight’s death was contributed to in a material degree by being in an atmosphere with a visible tobacco smoke haze in an enclosed space for more than 1,000 hours during his operational service. Despite Mr Knight’s healthy lifestyle, he has a long history of exposure to tobacco smoke which is effectively an unbroken continuum and a significant cumulative process. Miss Henderson submitted that it is implicit that the effect of exposure to tobacco smoke dissipates over time and, in this instance, Mr Knight’s operational service should not be found to have made a material contribution to his death from ischaemic heart disease.

29    In those circumstances, the Repatriation Commission’s submission in this Court that the Tribunal made no finding about this matter is simply not correct.

30    As a variant of this argument the Commission also submitted that the Tribunal had failed to give reasons for the same finding. We reject this argument too. The Tribunal not only found that the veteran had been exposed to environmental tobacco smoke within five years of the clinical onset of his ischaemic heart disease in 1996 but also, on a fair reading of its reasons, that it did so because it accepted the evidence of his wife and son about his lifelong exposure to environmental tobacco smoke.

Fourth issue: failure to give reasons

31    Next the Commission submitted that the Tribunal had failed to give any reasons for its conclusion that ‘in Mr Knight’s case, the SoP factor was “contributed to in a material degree by, or was aggravated by [operational] service”’. This, of course, was not the Tribunal’s conclusion for, as the Commission correctly submitted in relation to its first argument, the Tribunal erroneously found a connexion between his service and his death when it should have inquired into the link between his service and his exposure to tobacco smoke.

32    There is, however, no utility in considering whether the Tribunal exacerbated that error by failing to give adequate reasons for its erroneous conclusion.

33    Had it asked itself the correct question – whether the veteran’s service had contributed to a material degree to his exposure to tobacco smoke – its finding of fact that he had been exposed to 1,112 hours of such exposure during operational service would (as we have already observed) have permitted of only one answer. Consequently, regardless of the Tribunal’s final process of reasoning the conclusion was inevitable.

Fifth issue: erroneous imposition of onus of proof

34    Paragraph [41] is set out above at [27]. The Commission submits that the first sentence shows that the Tribunal conceived that the Commission bore an onus of proof. It pointed to s 120(6) which provides relevantly that nothing in the Act shall be taken to impose upon the applicant for a pension or the Commission ‘any onus of proving any matter that is, or might be, relevant to the determination of the claim or application’. Instead, the Tribunal was to determine that Mr Knight’s death was war-caused ‘unless it [was] satisfied, beyond reasonable doubt, that there [was] no sufficient ground for making that determination’: s 120(1).

35    However, in at least two other parts of its reasons the Tribunal indicated that the relevant issue was whether it was so satisfied thereby correctly avoiding any notion involving a burden of proof. So at [15] the Tribunal recorded:

If there is such a reasonable hypothesis, the Tribunal must then (at step four of Deledio) consider, pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that “there is no sufficient ground” for making a determination that Mr Knight’s death was war-caused.

36    And at [40] it said this:

Having formed the opinion that the hypothesis raised is a reasonable one, the Tribunal must then (at step four of Deledio) consider, pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that “there is no sufficient ground” for making a determination that Mr Knight’s death was war-caused. Mr Vincent contended that there is no medical evidence discounting Mr Knight’s operational service as a cause of his ischaemic heart disease. Miss Henderson submitted that the Tribunal should be satisfied beyond reasonable doubt in these terms because of the long period of time between the end of Mr Knight’s operational service in November 1968 and the clinical onset of his ischaemic heart disease in 1996. She noted that factor 6(i) gives particular emphasis to the last exposure to an atmosphere of visible tobacco smoke haze occurring within 5 years of the clinical onset of ischaemic heart disease.

37    We do not think when the Tribunal’s reasons are considered as a whole that this error was, in fact, made. In that regard it is important, particularly with a statute of the present complexity, to keep in mind the need to avoid reading the Tribunal’s reasons with an eye attuned to the detection of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J.

38    The facts undisputedly were that the veteran had been exposed to more than 1,000 hours of tobacco smoke. As the Tribunal put it (at [23]):

The Commission accepts that during his operational service and eligible defence service Mr Knight served in enclosed spaces where he was exposed to visible environmental tobacco smoke. The Commission also accepts the evidence of Commodore AHR Brecht (Retired) who, on 4 April 2008, estimated that Mr Knight had been exposed to a total exposure of 1,112 hours of environmental tobacco smoke during operational service and a further 6,358 hours exposure during other service on ships (part of which was eligible defence service) and 4,224 hours in shore establishments.

39    Given that fact, there was only one possible outcome of this issue, namely, that the Tribunal was satisfied of this undisputed fact.

Sixth issue: the second limb of cl 6(i)

40    The text of cl 6(i) is set out above at [6]. When Mrs Knight’s application for a pension was rejected on the first occasion by the Tribunal it concluded that the second limb of cl 6(i) meant that Mr Knight had to suffer a clinical onset of ischaemic heart disease within five years of his last exposure to an atmosphere of visible tobacco smoke haze during operational service. Since his last exposure to such tobacco haze during operational service had been in 1974 and since he suffered a clinical onset of ischaemic heart disease in 1996 this led the Tribunal to conclude that Mr Knight’s situation did not fall within cl 6(i): Knight v Repatriation Commission [2009] AATA 929. On appeal Katzmann J concluded that this was not the proper construction of the second limb of cl 6(i) and that all that was required was that the requisite exposure to visible tobacco smoke haze take place within five years of the clinical onset of ischaemic heart disease regardless of whether that exposure took place during operational service or not. Her Honour reasoned this way (Knight v Repatriation Commission (2010) 52 AAR 547; [2010] FCA 1134 at [58]-[59]):

58    Clause 6 is concerned with the aetiology of ischaemic heart disease, not its relationship to service. I accept the argument put by Mr Vincent, counsel for Mrs Knight, that the purpose of the qualification in the last clause of factor 6(i) was to incorporate a medical requirement for attribution of ischaemic heart disease to passive smoking, namely, the existence of a latency period of no more than five years from last exposure. But an applicant does not fit into the template of the SoP unless, in addition to meeting one of the factors in clause 6, at least one of the factors is related to operational service. That is what clause 5 provides. The SoP does not, therefore, “set out factors that connect ischaemic heart disease with relevant service”. Rather, it sets out factors that the Repatriation Medical Authority recognises as potential causes of ischaemic heart disease. In other words, it sets out factors that can be connected with service. Whether or not a factor is connected with the relevant service is answered by applying s 196B(14) of the Act.

59    That conclusion is reinforced by an examination of other parts of clause 6 – other factors listed in the clause (of which there are 45 in total). For example, amongst the factors in clause 6 are:

(f)     having dyslipidaemia [persistently abnormal lipid profile] before the clinical onset of ischaemic heart disease; or

…

(p)     undergoing a course of therapeutic radiation involving the mediastinum or the chest wall region overlying the heart, before the clinical onset of ischaemic heart disease; or

(q)    using a combined oral contraceptive pill for at least the 21 days before the clinical onset of ischaemic heart disease…

…

(s)    using amphetamines or amphetamine-like compounds, within the 24 hours before the clinical onset of ischaemic heart disease;

(Emphasis in original.)

41    That matter was the subject of a question of law which was explicitly posed by Mrs Knight’s notice of appeal before Katzmann J. This was Question Two in the appeal and it was as follows:

Does the meaning of:

    ‘being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1,000 hours before the clinical onset of ischaemic heart disease, where the last exposure to that atmosphere did not occur more than five years before the clinical onset of ischaemic heart disease:

as those words appear in factor 6(i) of the Statement of Principles No 89 of 2007 concerning Ischaemic Heart Disease made under section 196B of the Act, require that that part of the exposure to visible tobacco smoke haze in an enclosed space which occurs within 5 years of the clinical onset of ischaemic heart disease, itself needs to be exposure which is connected to service rendered by a veteran.

42    Katzmann J answered this question ‘No’. The Commission did not thereafter seek to appeal from her Honour’s conclusions.

43    In her address to this Court, counsel for the Commission submitted that at the second hearing the Tribunal had failed to consider whether Mr Knight’s exposure to tobacco haze in the five years preceding the onset of his ischaemic heart disease in 1996 was itself connected with service.

44    To embrace that proposition it would be necessary to conclude that the requirements of the second limb of cl 6(i) had themselves to be connected to service. This is, of course, the very matter which was determined adversely to the Commission by Katzmann J. As her Honour explained at [58] (above) the required connexion is with the factor, not its second limb. The contrary view encounters the conceptual difficulties explained by her Honour at [59].

45    When confronted with this difficulty the response of counsel was twofold. The first was to submit that the conclusions of Katzmann J had been an obiter dictum leaving this Court free to arrive at a different conclusion. The second was to confront directly her Honour’s conclusion and to contend it to have been wrong.

46    Neither of these responses should be accepted. Her Honour’s conclusion was not an obiter dictum – it was the very holding in the case – and, as shown above, the subject of an explicit answer to the second posited question of law. As to counsel’s direct assault on the conclusion of Katzmann J, we would reject it as not being open. The issue of whether cl 6(i) requires that the exposure which occurs within five years of clinical onset be connected to service was resolved adversely to the Commission by Katzmann J. There was no appeal. That controversy has been quelled. There is, in effect, an issue estoppel between the parties on that question. Even if it were open to us to disinter that issue and to consider it afresh we would, in any event, respectfully agree with the conclusion reached by Katzmann J on this issue for the reasons given by her Honour.

47    There is, accordingly, no substance in this final argument.

Conclusion

48    The appeal must be dismissed with costs.

Associate:

Dated:    6 June 2012