CATCHWORDS
Defence and War Veterans' entitlements - Disability pension - Eligibility for pension at intermediate rate - Meaning of "remunerative work" - whether there was evidence of veteran's incapacity to undertake remunerative work - Factors relevant to assessment of claimed incapacity - Whether reference to "open [labour] market" entailed regard to matter made impermissible by s.28 - Whether evidence to support finding that veteran incapable of working 20 hours per week - whether evidence to support finding that veteran's cessation of remunerative work had been due to war-caused incapacity alone and not partly to religious commitment - Whether veteran incapacitated to undertake remunerative work - (Cth) Veterans' Entitlement Act 1986 ss 23 and 28
Veterans' Entitlements Act 1986 ss 23 and 28
Brown v Repatriation Commission (1985) 7 FCR 302
Chambers v Repatriation Commission (1995) 55 FCR 9
Althorpe v Repatriation Commission (1987) 77 ALR 42
Freeman v Defence Force Retirement and Death Benefits Authority (1985) AAR 116
Federal Commissioner of Taxation v Raptis (1990) 19 ALD 276
Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208
Repatriation Commission v Strickland (1990) 12 AAR 343
REPATRIATION COMMISSION v ALAN GEORGE BUCKINGHAM
No QG 153 of 1994
Ryan J
Melbourne
7 February 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
QUEENSLAND DISTRICT REGISTRY ) QG 153 of 1994
)
GENERAL DIVISION )
On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr D W Muller, Senior Member, Brigadier T R Gibson, Member, and Dr G S Urquhart, Member
BETWEEN: REPATRIATION COMMISSION
(Applicant)
AND: ALAN GEORGE BUCKINGHAM
(Respondent)
CORAM: Ryan J
PLACE: Melbourne (Heard in Brisbane)
DATE: 7 February 1996
MINUTE OF ORDERS
THE COURT ORDERS:
1. That the application be dismissed.
2. That the applicant pay the respondent's costs of the application, such costs to be taxed.
NOTE: Settlement and entry of orders is dealt with in O.36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
QUEENSLAND DISTRICT REGISTRY ) QG 153 of 1994
)
GENERAL DIVISION )
On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mr D W Muller, Senior Member, Brigadier T R Gibson, Member, and Dr G S Urquhart, Member
BETWEEN: REPATRIATION COMMISSION
(Applicant)
AND: ALAN GEORGE BUCKINGHAM
(Respondent)
CORAM: Ryan J
PLACE: Melbourne (Heard in Brisbane)
DATE: 7 February 1996
REASONS FOR JUDGMENT
RYAN J: This is an appeal from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal (the "Tribunal") given on 8 September 1994, whereby the Tribunal decided to vary a decision of the Veterans' Review Board and, with it, an earlier decision of the Repatriation Commission.
The Tribunal substituted for the earlier decisions a finding to the effect that certain gastric and spinal disabilities suffered by the respondent to this appeal, Alan George Buckingham, were war-caused injuries within the meaning of the Veterans' Entitlements Act 1986 (the "Act"). The Tribunal further decided that Mr Buckingham should be paid a disability pension at the intermediate rate prescribed under s.23 of the Act. Both decisions were deemed to be effective from 24 September 1991.
By its amended notice of appeal to this Court, the applicant (the "Commission") sought an order setting aside the Tribunal's decision. At the hearing of the appeal, the Commission did not dispute the finding that Mr Buckingham suffered from an injury or disability which was war-caused within the meaning of the Act. Rather, the question in dispute was whether Mr Buckingham satisfied the requirements of s.23 so as to be entitled to a pension at the Intermediate Rate.
1. BACKGROUND
According to undisputed evidence before the Tribunal, Mr Buckingham joined the Army in 1960 and served for 20 years before his discharge. He served in Vietnam for two periods, each of approximately one year, in 1966 and 1969 respectively. During the first of those tours of duty he was injured when he drove over an exploding mine in an armoured personnel carrier. He was hospitalised as a result, and it is accepted that his lumbar disc problems arose from that incident. He also injured his neck in a volleyball game whilst in Vietnam, and now suffers from a resulting degenerative cervical condition. The evidence also suggests that his gastric problems are attributable to his diet, lifestyle and duties involving heavy lifting during those periods of service.
Extensive evidence was also put before the Tribunal in relation to Mr Buckingham's work history. This material was also generally undisputed. Before joining the Army, Mr Buckingham worked briefly as a food packer, shop assistant and driver during his teens. After his discharge from the Army in 1980, he was employed as a security patrol man for what appears to have been a few months only, before moving to a sales position, where he sold advertising space on a 35mm slide projector at a local hotel. When the company which conducted that form of advertising ceased business some months later, Mr Buckingham began a lawn mowing business. He enjoyed the physical work involved in that enterprise, but had to abandon it because of his ongoing back pain. From 1982, he worked for about 18 months as a relief postman for Australia Post before he was forced, according to his oral evidence, again by back pain to give up that work which had exposed him to jarring caused by rough motorcycle riding conditions.
At about this time, Mr Buckingham became a Christian. He undertook Bible studies in 1984 and 1985, apparently in contemplation of becoming a Minister within his church, but decided during the course of those studies that he did not have the other skills required for pastoral work. He moved instead in 1986 to another post associated with the Church, working as the property manager for a mission society known as WEC International ("WEC"). This position was unpaid, although free accommodation was provided by WEC for Mr Buckingham and his wife. As property manager, Mr Buckingham performed administrative duties for the first half of each working day and in the afternoon supervised others carrying out property maintenance tasks. The evidence shows that he occasionally carried out some of the maintenance work himself and that as a result, his back pain recurred. In October 1989, after three years as property manager, Mr Buckingham moved to a new position with WEC as a business agent working in Liberia. Until he left Liberia in 1990, he had been engaged in non-physical administrative work and enjoyed a relatively pain-free existence. After that time, he worked for WEC in Holland and then, after returning to Australia, as a camp caretaker at Mt Tambourine, performing some physical work which again caused him debilitating back pain.
According to his material filed with the Tribunal, Mr Buckingham completed a three year stint to early 1994 as camp caretaker at Mt Tambourine "with difficulty". In oral evidence, he stated that he had been employed full-time in that job, working a "normal" day when "physically able", but that he had been free to take time to rest and recuperate for a couple of hours whenever the pain in his back flared up. His evidence was that he had been "okay" physically for most of the time but that his back condition had deteriorated steadily whilst at Mt Tambourine, to the point where he had to ask the mission for a different position which did not entail maintenance.
In May 1994, he was transferred from WEC to another mission known as the Christian Literature Crusade. He was trained in the administration and operation of a Christian bookstore, a role which required no lifting or physical work. At the time of the hearing before the Tribunal, Mr Buckingham had intended to go to Townsville to assist his wife in the management and running of such a bookstore. According to the evidence, Mrs Buckingham had been offered a position as bookstore manager. Neither Mrs nor Mr Buckingham were to be paid for this work, but their accommodation was to be provided free of charge by the Church.
The evidence before the Tribunal also included several medical reports describing Mr Buckingham's back and gastric conditions. In summary, these reports showed that Mr Buckingham suffered from a degenerative disease in his neck (cervical spondylosis), a lumbar disc disease which caused pain and restricted movement in his back and spine, and gastro-oesophageal reflux. The Tribunal found that those injuries were war-caused within the meaning of the Act. That finding was not challenged in the course of the application to this Court.
2. BASIS OF THE APPEAL
The Commission has appealed to this Court under s.44(1) of the Administrative Appeals Tribunal Act 1975 (the "AAT Act"), which empowers a party to a proceeding before the Tribunal to appeal on a question of law from any decision of the Tribunal in that proceeding. Such appeals fall within the Court's original jurisdiction. It is an appeal in which the Court's role is limited to deciding a question of law, and does not extend to a rehearing of the matter: Brown v Repatriation Commission (1985) 7 FCR 302 at pp 304-305.
The Act embodies a complex scheme whereby compensation is payable in certain circumstances to those who have rendered eligible war service (as defined). It is not necessary for the purposes of this appeal to describe all the aspects of that scheme. In Chambers v Repatriation Commission (1995) 55 FCR 9, Moore and Sackville JJ at pp 12-14 have examined in some detail those elements of the statutory framework which bear on the present case.
Eligibility for the intermediate rate of pension is defined in s.23 of the Act. The criteria relevant to Mr Buckingham are those set out in paragraphs 23(1)(b) and 23(1)(c) which provide:
"Intermediate rate of pension
23. (1) This section applies to a veteran if: ...
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity. ..."
The concept of incapacity for the purposes of this intermediate rate is different from that of incapacity to which the general rate applies. A Full Court of this Court in Althorpe v Repatriation Commission (1987) 77 ALR 42 described that difference as follows, at 49:
"In brief, the criteria for the intermediate rate and for the special rate look to incapacity for work, that is to say incapacity to earn, whereas incapacity for the purposes of the general rate is not concerned primarily with incapacity for work but looks to incapacity which takes into account the effect of the relevant disability upon the whole of the veteran's life, not only his working life, but also his social and family life."
In seeking to set aside the finding that Mr Buckingham was entitled to the intermediate rate, the Commission has attacked the Tribunal's decision on two grounds. Its first basic submission is that the Tribunal erred in law in that it misconstrued the relevant statutory provisions. Secondly, it argues that the Tribunal's findings were not "reasonably open" to it on the evidence - in other words, that the decision was not supported by the factual material before the Tribunal.
3. INCAPACITY TO UNDERTAKE REMUNERATIVE WORK - s.23(1)(b)
Section 23(1)(b) requires a veteran seeking to qualify for the intermediate rate to show that his or her war-caused incapacity "is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work other than on a part-time basis or intermittently".
3.1 Meaning of "remunerative work"
Miss Henderson of Counsel for the Commission argued first that the Tribunal had erred in law by failing to interpret correctly the term "remunerative work". She submitted that the term should be read broadly, and that it includes work for which rent-free accommodation is provided. On this basis, it was suggested that the Court should set aside the Tribunal's decision because the evidence showed that Mr Buckingham and his wife were to be accommodated rent-free in return for managing the Christian bookshop. It was submitted, in effect, that on this evidence, no finding was open to the Tribunal other than that Mr Buckingham was capable of "remunerative work".
Mr O'Gorman for Mr Buckingham conceded that accommodation provided in return for services could amount to remuneration for the purposes of the section. However, he contended that the Tribunal's finding was nevertheless correct in law, in that it remained open to the Tribunal, on the evidence as a whole, to find that Mr Buckingham satisfied s.23(1)(b) and (c). It was suggested that the bookshop arrangement with the Church did not of itself establish that Mr Buckingham was capable of undertaking "remunerative work" for the relevant periods of time.
For Mr Buckingham it was argued that regardless of any arrangement which he may have made to assist in the bookshop, he still had the requisite kind and level of incapacity. That conclusion remained open, so it was argued, because the Tribunal had not found that his role in the bookshop was "work" in the commonly understood sense, but had regarded it as more in the nature of an activity undertaken in a sheltered environment. This suggestion is supported by the Tribunal's expression of its reasons, where it is indicated that despite the fact of his "employment" in the bookshop, "on the open market [he] would really not be able to get a job". Because the Tribunal had declined to regard the activity in the bookshop as work, Mr Buckingham's undertaking that activity was irrelevant to the question of whether he was able to undertake any work which might be available on the open labour market.
3.2 Factors relevant to determining the veteran's capacity for work - s.28
Section 28 of the Act gives some guidance as to the meaning of s.23(1)(b). It sets out three factors which the Commission (and, in turn, the Tribunal at the review stage) must consider in determining whether a veteran is incapable of undertaking remunerative work for the purposes of s.23(1)(b). These are:
"(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b)."
Section 28 provides expressly that these are the only matters to which regard may be had in deciding whether s.23(1)(b) is satisfied.
The first of these matters involves an analysis of the facts bearing on the skills and past experience of the veteran in question. According to Moore and Sackville JJ in Chambers (supra), at p 20, the purpose of the enquiry in s.28(a) is:
"to direct attention to the range of employment opportunities available to the individual but for his or her disability: re Thomson [(1987) 6 AAR 44] at 431-3. Accordingly, the skills, qualifications and experience of the veteran are to be assessed independently of the war-caused incapacity: Defence Force Retirement and Death Benefits v House (1989) 91 ALR 286."
At the stage of considering those skills and that experience, the inquiry should disregard the effect on the veteran's employment to date of the war-caused injuries. The impact of the injuries is to be addressed instead under s.28(c), which requires the decision-maker to consider how those injuries have reduced the veteran's capacity for remunerative work.
In this case, extensive evidence concerning Mr Buckingham's past work history was before the Tribunal. In his affidavits and oral evidence, Mr Buckingham deposed to the various types of work, both paid and unpaid, which he had performed and his enjoyment of and perceived success in each. The Tribunal in its reasons adverted to major elements of that evidence, noting that the work done for the Church had been unpaid, but that accommodation had always been provided.
Section 28(b) requires the decision-maker to undertake a different kind of inquiry into the types of employment which a hypothetical person with the veteran's skills, qualifications and experience, as found under s.28(a), could reasonably undertake. Unlike that under s.28(a), this inquiry is not directed to the actual subject veteran, but to a hypothetical individual possessing the subject veteran's skills and experience.
It was submitted for the Commission that the Tribunal's reasons showed that it had not taken a sufficiently broad view of the kinds of work which a person with Mr Buckingham's skills could do. In particular, Counsel for the Commission referred to paragraph 15 of the reasons which recite that "without his injuries, Mr Buckingham would probably still be mowing lawns in Gympie, or delivering letters." This statement, it was suggested, showed that the Tribunal members had adverted only to work involving physical activity, and had not gone on further to consider remunerative activities which with Mr Buckingham's aptitudes and experience might be able to undertake with little or no physical exertion.
It was submitted for the respondent, and I accept, that the Tribunal's remark about lawns and letters was merely illustrative. Although the Tribunal did not set out to list all the kinds of work which a veteran in Mr Buckingham's position might undertake, it appears from the reasons that the members did turn their mind to the question. From its summary of the evidence in paragraphs 8 and 9 of its reasons, it is clear that the Tribunal accepted, for the purposes of s.28(a), that Mr Buckingham's skills and experience had been gained chiefly in physical work. Paragraphs 11 and 12 reveal that the Tribunal was also aware that he had undertaken work at various times for the missions which involved little physical exertion. However, the reasons indicate that the Tribunal did not regard his experience of that kind of work in the missions as equipping him to undertake clerical, administrative or other non-physical work for the purposes of the test erected by s.28(b). The Tribunal has accepted the evidence that Mr Buckingham had some experience of non-physical "work". However its guarded reference to that experience suggest that the Tribunal did not regard it as equipping a hypothetical veteran for some form of sedentary work in the requisite sense. In other words, the Tribunal declined to accept that merely because Mr Buckingham had been given accommodation (which, it was conceded, could constitute remuneration) in return for his assistance in the bookshop, it had been established that a hypothetical individual with the same experience would reasonably be able to get (or keep) a similar position in the general workforce. The Tribunal found that Mr Buckingham's experience of work in which physical activity was not significant had been confined to a short-lived venture into selling advertising and, later, Church-related clerical work in a sheltered situation. A hypothetical person with experience so confined, the Tribunal appeared to accept, could not reasonably be expected to undertake or even succeed in finding non-physical work in the general labour market. The finding was that "on the open market, the applicant would really not be able to get a job...". Having taken into account his limited skills and unusually sheltered experience of clerical or administrative work, it was open to the Tribunal to conclude that a person in Mr Buckingham's position could not reasonably undertake non-physical work.
By contrast, the Tribunal appears to have accepted that, but for his injuries, someone of Mr Buckingham's skills and experience was well qualified by his experience to undertake physical tasks. The undisputed evidence about his lawn mowing, maintenance, property management and mail delivery experience was accepted by the Tribunal.
However, those options were ruled out for Mr
Buckingham by the factor referred to in s.28(c), namely, the degree to which
his war-caused injuries had reduced his capacity to engage in work for which he
was otherwise reasonably equipped. The
medical evidence on which the Tribunal could reach this view was
extensive. It was also open to the
Tribunal to conclude in the alternative that the effects of Mr Buckingham's
injuries precluded him from undertaking even non-physical work. Even if it had
found that Mr Buckingham had sufficient experience or qualifications for
non-physical work, there was considerable evidence suggesting he could not
remain sitting or perform desk work for any sustained period. A finding to that effect
could have been sustained on the evidence of Dr Robinson, both on affidavit and
orally before the Tribunal.
3.3 The application of s.28 by the Tribunal
The Commission submitted that the Tribunal's decision gave no indication that it had considered the matters specified in paragraphs 28(a), (b) and (c). It is true that in its brief reasons, the Tribunal did not repeat the precise words used in those paragraphs. However, as the applicant conceded, it is not essential for the Tribunal to spell out its findings in relation to each of those criteria, provided that the reasons show that the Tribunal did have regard to the required matters and to nothing else. This was established in Chambers (supra), where Moore and Sackville JJ stated at 26:
"In our view, while it will often be desirable for the tribunal to consider separately the three subparagraphs of s 28, and to record findings in relation to "each of them" the tribunal is not compelled as a matter of law to take this course. Section 28 requires the Commission (or the tribunal) "to have regard to [three specified] matters only" in determining whether an incapacitated veteran is incapable of undertaking remunerative work. These words mean that the tribunal must give weight to each of the matters as a fundamental element in making a determination on that issue: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; 25 ALR 497, per Mason J. The tribunal is also required to exclude all other considerations in making its determination. Provided the tribunal follows this course it does not depart from the requirements of s 28. Whether it has followed the requisite course will depend upon a reading of the tribunal's reasons as a whole. Such a reading should not be concerned with looseness in language."
On behalf of Mr Buckingham it was argued that the Tribunal's findings, when read as a whole, reveal that regard was had to each of the three specified criteria and to no extraneous matters.
As in Chambers, the Tribunal's reasons for decision in this case are framed in general, rather than specific analytical, terms. The Tribunal has not explicitly stated that it has made particular findings as to Mr Buckingham's vocational skills and experience, but it has summarised the essential aspects of his employment history thereby making it clear that regard was had to his relevant work experience, (including the non-physical work done for the Church), as required by s.28(a).
The Tribunal's consideration of the matter specified in s.28(b) is less clearly articulated in its reasons. However, in paragraph 13 the Tribunal refers to Mr Buckingham's later position, and states that "he really is working in a sheltered workshop, or sheltered bookshop, situation. So, consequently, it is our view that in the open market [he] would really not be able to get a job". I infer from that passage that the Tribunal had regard to Mr Buckingham's particular experience of non-physical work, and in the light of its special, restricted, nature, rejected non-physical work in a general sense as a kind of employment which a hypothetical person with Mr Buckingham's experience might reasonably undertake.
Finally, it is apparent that the Tribunal had regard to the factor enumerated in s.28(c), namely the effect of the injury in reducing Mr Buckingham's capacity for the types of work hypothetically available to him under s.28(b). That consideration is implicit in the notice taken of the fact that Mr Buckingham's back had made it impossible to work for extended periods at some of his earlier activities, and in others to work at all.
3.4 Did the Tribunal have regard to the s.28 matters "only"?
The Commission's other objection to the Tribunal's treatment of s.28 was that it had taken into account a matter other than those enumerated in paragraphs 28(a), (b) and (c). Section 28 provides that in assessing a veteran's relevant incapacity, the decision-maker "shall have regard to the following matters only". As the Full Court pointed out in Freeman v Defence Force Retirement and Death Benefits Authority (1985) AAR 116, this precludes the decision-maker from taking into account any other matter in determining whether the veteran is incapacitated to the relevant degree.
It was submitted for the Commission that the Tribunal erred in law in that it had regard to the state of the employment market in reaching its decision. This submission was based on the Tribunal's statement in paragraph 12 of its reasons "that Mr Buckingham would really be unemployable in the open market". In paragraph 14, it was further stated that "he could manage more than eight hours per week but from the practical point of view, this would certainly not give him a job of any description on the open market these days".
In my view, these words do not of themselves reveal that the Tribunal did take account of any irrelevant or impermissible consideration. The reference to the "open market these days" does not signify a regard to merely transitory fluctuations in the demand for labour. Rather, it appears that the Tribunal used the phrase as part of its consideration of the kinds of remunerative work which a person of Mr Buckingham's skills, qualifications and experience "might reasonably undertake", as required by s.28(b). That consideration cannot be undertaken in a vacuum. In order to decide what kinds of remunerative work the postulated hypothetical person might reasonably undertake, the Tribunal has to ask itself what kinds of remunerative work are reasonably "available" to a person in the position hypothesized. This entails the taking of some notice of the general level of demand by employers for the performance of work of the kind under consideration.
The Tribunal made no comment at all on its perception of the prevailing state of the labour market. Rather, it seems to have concluded that Mr Buckingham was incapable of reasonably obtaining remunerative work in the open market whatever might be the fluctuations in demand in that market from time to time. By simply referring to the open market as the context in which the reasonable availability of remunerative work for somebody with Mr Buckingham's skills and experience has to be assessed, the Tribunal was not, in my view, erroneously having regard to a factor like "depressed labour conditions", which Moore and Sackville JJ identified in Chambers at 19 as excluded by s.28.
3.5 Work otherwise than part-time or intermittently
Under s 23(2), a veteran cannot qualify for the intermediate rate in s 23(1)(b) if he or she is capable of undertaking "work of a particular kind" for more than half of the time ordinarily worked by full-time employees in that employment, or is capable of undertaking such work for 20 hours or more per week.
Ms Henderson for the Commission submitted that the Tribunal's finding that Mr Buckingham was capable of working more than eight but less than 20 hours per week was unreasonable and unsupported by the evidence. It is now well-established in this area that an administrative tribunal, when deciding a factual question, makes an error of law if there was no evidence to support its conclusion of fact. An error of that kind is sometimes said to occur when the only true conclusion which the tribunal, properly instructed as to law, could have reached is contrary to that which it did reach, or if its decision was otherwise perverse: Federal Commissioner of Taxation v Raptis (1990) 19 ALD 726 per Gummow J at p 727 and the authorities there cited. In Lombardo v Federal Commissioner of Taxation (1979) 40 FLR 208 at 212, Bowen CJ stated that a "submission of `no evidence', however, involves the difficulty that unless some restrictions are applied, an appeal is open to any aggrieved appellant who chooses to make such a submission". In his Honour's view, that submission could not succeed in the case before him which was not one in which "on the facts deduced from the evidence there could be no other conclusion than that the taxpayer had or had not the relevant purpose".
In this case, it is not clear that there was no evidence to support the Tribunal's conclusion that Mr Buckingham was incapable of working 20 hours per week. Medical evidence adduced on each side was equivocal on the question of whether Mr Buckingham was or was not capable of more than part-time work. The respondent's treating general practitioner, Dr Comino, in a report of 3 May 1994 said:
"In regard to whether Mr Alan Buckingham('s) accepted disabilities would prevent him from working any more than eight or twenty hours per week, I am unable to comment because of my limited knowledge in this case."
Dr Robinson, an orthopaedic surgeon who examined Mr Buckingham at the request of the Deputy Commissioner for Veterans' Affairs, in a report of 18 February 1992 concluded:
"This gentleman has cervical pain which he relates to injuries occurring in 1970. He has arthritic problems clinically and radiologically - the loss of function he experiences would amount to an impairment of function in the region of 8 per cent. This will be permanent although his symptoms may improve with exercises which he has been shown."
In the course of his oral evidence before the Tribunal Dr Robinson gave the following evidence when cross-examined by Mr Hargraves for the Department:
"He
had a mild increase in movement in his cervical vertebrae. His problems were more, I felt, subjective
than which one could put an objective loss of function on. I think he would have pain. I couldn't say that they would prevent him
from working in all areas. It may
prevent him from working as a labourer, particularly with anything bending and
lifting. It may prevent him from working
as a - at a desk continually with his cervical spine flexed. He would, I think, be capable of some sort of
work applicable to his condition in
- to those two conditions, so that there wasn't continuous lifting, bending and
there wasn't continuous flexion of the neck, so that if he could adapt to that
in some occupation, I think he would be capable of working. But that would depend of course on his
occupation and his educational standard.
Sure. Can I put the proposition to you of normal office work where he is not necessarily sitting at a desk all the time; how would that be?---Well, I think he---
Physically, I mean?---I haven't seen him, of course, since that - since last year but I believe he possibly would be able to undertake such.
Would he be able to work as a salesman?---As long as it didn't - not too heavy bending and lifting, I think probably, in and out of a car might be - I think - if he was able to sit and stand intermittently then it should be satisfactory."
The Tribunal heard evidence from Mr Buckingham to the effect that he had engaged in "full-time" work at various times until May 1994. In the course of cross-examination, Mr Buckingham qualified that by saying that in the work which he had done for the mission, he had been free to stop and rest and recuperate at any time when he had trouble with his back. If he could take time for this rest and recuperation, he could usually work a "normal day" when "physically able". However, he could and would have a couple of hours off in the course of the day when his back played up. Mr Buckingham's evidence also suggested that his back forced him fairly frequently to take days off from work and rest in bed on a fairly frequent basis.
In the light of this material, I consider that there was an evidentiary basis for the Tribunal's finding that Mr Buckingham could not work more than half of a normal work load or 20 hours per week. It is not for the Court to indicate what view it would form if required to decide the question of fact for itself. Its function is confined to considering whether, on the facts deduced from the evidence, the conclusion reached by the Tribunal was open to it. In this case, I am not persuaded that there was no evidence to support the Tribunal's finding of fact.
4. LOSS OF SALARY OR WAGES - SECTION 23(1)(c)
A veteran must satisfy, in addition to those imposed by s.23(1)(b), requirements of s.23(1)(c). Section 23(1)(c) applies to a veteran who is:
"(c) ... by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity ... ."
Section 23(3) expands upon the meaning of that paragraph by, providing:
"(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary of that incapacity:
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;"
Counsel for the Commission submitted that the Tribunal had erred in law in failing to have regard to the evidence on the question raised by s 23(1)(c). Specifically, it was submitted that the Tribunal failed to address the question of whether some reason other than his war-caused injury had prompted Mr Buckingham to cease the remunerative work which he had undertaken in the past. It was submitted that the evidence showed a very significant commitment by Mr Buckingham to his religious beliefs and activities. This evidence, it was submitted, required the Tribunal to consider whether that religious commitment had played a role in Mr Buckingham's employment choices.
The application of s.23(1)(c) is strictly confined to veterans who are prevented from working by their war-caused incapacity "alone". It thus has no application to those veterans whose incapacity to work is caused or contributed to by any other factor. As the Full Court indicated in Repatriation Commission v Strickland (1990) 12 AAR 343, a veteran who is also prevented from working by other circumstances, such as age, cannot satisfy the requirement.
In this case, there was extensive evidence before the Tribunal concerning both Mr Buckingham's religious involvement and the effect of his war-caused injuries on his work and other activities. The question of which of these two factors really prevented Mr Buckingham from undertaking remunerative work of the kind which he had in the past was raised in cross-examination. In response to a direct question, Mr Buckingham told the Tribunal:
"I think it would be fair to say that if I had not had to - had the difficulty with my back - or didn't believe that my back was going to be bad, I would probably have continued to work as I was."
When asked why he had not tried to obtain non-physical work like that available in an administrative position or bookshop outside his Church, he stated that he did not believe that he had "the physical capability of being employed outside". He acknowledged that the religious element in his work was important to him - "I believe in what I am doing" - but in relation to his prospects for non-Church-related work, he said "I don't know of any opportunities".
It is apparent from paras 11 and 12 of the Tribunal's reasons that it was aware of Mr Buckingham's religious commitment and of the importance which he attached to it. However, it also had regard to the medical and other evidence as to the effects of his war-caused injuries on his performance of work in the positions which he had occupied up to 1994.
In my view, there was evidence before the Tribunal which entitled it to find that it was Mr Buckingham's war-caused incapacity alone and not his religious beliefs, which prompted him to give up remunerative employment like that which he had previously undertaken. A finding to that effect is implicit in the statement in paragraph 15 of the Tribunal's reasons that:
"Mr Buckingham told the Tribunal, and we accept, that if he had not had his war-caused injuries, he would never have turned to the alternative that he did."
As it happens, Mr Buckingham is now involved with the Church in a role which he finds spiritually satisfying as well as physically achievable. But in my view, the evidence does not compel the conclusion that he would have forsaken secular work if he had not been injured. It is not necessary for me to agree with the Tribunal's conclusion on this question. As discussed above in relation to s.23(1)(b), where there is an evidentiary basis to support its finding of fact, the Tribunal cannot be said to have erred in law in the manner submitted.
5. CONCLUSION
For the reasons given above, I do not find that the Tribunal erred in law in deciding that Mr Buckingham was entitled to be paid a pension at the intermediate rate under s.23 of the Act from 24 September 1991. The appeal should be dismissed with costs.
I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.
Associate:
Date:
Counsel for the applicant: Ms R M Henderson
Solicitor for the applicant:Australian Government Solicitor
Counsel for the respondent: Mr D P O'Gorman
Solicitor for the respondent: Gilshenan & Luton
Hearing date: 12 July 1995
Date of judgment: 7 February 1996
