FEDERAL COURT OF AUSTRALIA

VETERANS’ AFFAIRS - application for payment of disability pension at special rate - veteran 68 years old at application date - finding that veteran would not have continued to work if free of incapacity from war-caused disabilities - no error of law.

Veterans’ Entitlement Act 1986 s 24(1)(c)

Repatriation Commission v Maley (1991) 24 ALD 43 considered

Repatriation Commission v Smith (1987) 15 FCR 327 applied

Repatriation Commission v Strickland (1990) 22 ALD 10 considered

WILLIAM NOEL TOMLIN v REPATRIATION COMMISSION

NG 950 of 1995

JUDGE:           WHITLAM J

PLACE:           SYDNEY

DATED:           1 AUGUST 1997

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

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

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

The question of law raised in this appeal is whether the Administrative Appeals Tribunal (“the Tribunal) correctly applied the test set out in s 24(1)(c) of the Veterans’ Entitlements Act 1986 (“the Act”).  Section 24 of the Act is concerned with eligibility for payment of a disability pension at the so-called special rate.  The scheme of the relevant part of the Act is explained in Repatriation Commission v Smith (1987) 15 FCR 327.  (Certain observations in that case need to be read in the light of subsequent amendments to the Act which have been given retrospective effect and which are discussed in Repatriation Commission v Braund (1991) 23 ALD 591, but the amendments are not relevant for present purposes.)

Section 24 specifies three qualifying criteria which Beaumont J described in Smith (at 329) as (a) receipt of 100 per cent general rate pension, (b) total and permanent capacity, and (c) economic loss.  Before the Tribunal the respondent accepted that the first two of these criteria were satisfied in he present case.  The issue for determination before the Tribunal was whether, in terms of par (c) of s 24(1), the applicant:

“is by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that [he] was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his ... own account, that [he] ... would not be suffering if [he] were free of that incapacity.”

The applicant was born on 25 September 1925.  So, when he lodged the relevant application in this case on 29 November 1993, he was sixty-eight years old.  This fact by itself presented a considerable forensic hurdle: Repatriation Commission v Strickland (1990) 22 ALD 10 at 17-18.  In addition, the applicant had worked in a succession of unskilled jobs culminating in seven years as an hospital orderly before his war-caused disabilities forced him to retire in 1985.  Nonetheless, the evidence he adduced from Ms Carmen Gauci, the hospital’s domestic services manager, led the Tribunal to make a most favourable finding:

“14.     I find, on the evidence of Ms. Gauci, that the Applicant could have obtained work at the Blacktown Hospital as a porter as at the application date, except for his war-caused disabilities, notwithstanding that he would have been 68 years of age then.”

However, the Tribunal had earlier referred to evidence from the applicant:

“10.     The Applicant’s evidence was that he understood that his job was still there for him if he was well enough to do it, he had no superannuation benefits, and he liked his work.  He had difficulty in reading and writing but he found that his job at the hospital did not require these skills.  He had no plans to retire from the hospital at any particular age, but he and his wife had thought that when they retired they would go to live at Nambucca Heads because it was a place where they had spent many holidays and they liked the area.  Indeed he and his wife moved to Nambucca Heads the year after his retirement.  He sold his house in Sydney on which he had a mortgage and bought a house in Nambucca Heads free of debt.  By that time his children had moved from home and were more or less independent.”

The Tribunal concluded:

“15.     The turning point in this decision is whether, at the application date and without his war-caused disabilities, the Applicant would in any event have retired from his work at Blacktown Hospital.  By that time his children would not have required him to continue to live in Sydney - they were already independent by the time of his retirement in 1985.  The long term plans of the Applicant and his wife to move to Nambucca Heads on his retirement are of significance despite the fact that the Applicant had no time factor built into these plans.  He has demonstrated that by moving to Nambucca Heads he was able to obtain debt free housing and he was then residing in an area which he and his wife knew they liked.  It was obviously not in his financial interests or in the interests of his lifestyle to stay working in Sydney.

16.       The question for the Tribunal is whether I am reasonably satisfied that except for the Applicant’s war-caused disabilities, he would still have been working at Blacktown Hospital in November 1993.  While I accept that it is quite possible that the Applicant would have continued to work to the age of 68 years, that is not the test.  I must be reasonably satisfied.  It must be more probable than not that he would have been working at the Blacktown Hospital at the age of 68 years.  Unfortunately for the Applicant the evidence does not support that level of satisfaction because he was not clear about how long he would have continued to work and because of his intention to retire ultimately to Nambucca Heads.  The evidence does not allow me to find anything more than that it was possible that he would continue to have been working at the Blacktown Hospital at the application date, and that is not sufficient.

17.       I am not reasonably satisfied that the Applicant has suffered a loss of salary or wages that he would not have suffered if he were free from his war-caused conditions, and consequently I affirm the decision of the Veterans’ Review Board of 1 December 1994.”

Counsel for the applicant submits that the Tribunal has misunderstood or wrongly applied what he calls the “alone” test prescribed by s 24(1)(c).  The error is said to be revealed in paragraphs 15 and 16 of the Tribunal’s reasons.  In reaching those conclusions, it is said, the Tribunal looked at the applicant as he was, rather than at “the hypothetical man” that he would have been but for his war-caused disabilities.

In Smith Beaumont J described (at 337) the question posed by s 24(1)(c) as “one of hypothetical fact”.  But his Honour continued: “The Tribunal must attempt an assessment of what the [veteran] probably would have done if he had none of his service disabilities.”  Counsel for the applicant relies on a particular formulation of the “hypothetical position” that a Full Court of this Court said it was necessary to inquire into for the purposes of s 24(1) in Repatriation Commission v Maley (1991) 24 ALD 43 at 51.  But that statement was made in the context of a specific submission, and the Full Court had earlier (at 50) referred to the prospects of the veteran’s employment being considered “on the requisite statutory assumptions”.

Counsel for the respondent submits, correctly in my view, that neither of these cases suggests that the decision-maker must construct an imagined life for an hypothetical man.  The hypothetical fact identified by Beaumont J reflects the language of

s 24(1)(c), which is plainly acknowledged by the phrases used in the first sentence of both paragraphs 15 and 16 of the Tribunal’s reasons. 

The Tribunal was bound to engage in speculation as to what the applicant would have done at the application date if he had none of the war-caused disabilities.  In doing so, it may have regard to all the evidence before it, including the fact that the applicant did move to Nambucca Heads.  Here the Tribunal has carefully addressed the issue before it, observing the distinction between probabilities and mere possibilities drawn by Beaumont J in Smith (at 335).  The Tribunal’s findings of fact were reasonably open to it, and the applicant has demonstrated no error of law.

The appeal will be dismissed with costs.

Associate:

Dated:              1 August 1997