FEDERAL COURT OF AUSTRALIA

Brew v Repatriation Commission [1999] FCA 494

VETERANS AFFAIRS – Hospital orderly – Leg pains during service – Subsequent diagnosis of varicose veins – Statement of Principles concerning varicose veins – Factors that must exist before it can be said, on balance of probabilities, that varicose veins connected with service – Inability to obtain appropriate clinical management for varicose veins – Meaning of “inability” – Repatriation Commission – Required to take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance – Whether “difficulties” include lack of current day diagnostic techniques.

Veterans’ Entitlements Act 1986 ss 119(1)(h), 120(4), 120B(3)

SOPHY BREW v REPATRIATION COMMISSION

VG 229 OF 1998

SUNDBERG J

23 APRIL 1999

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     The applicant was in receipt of a pension under the Veterans’ Entitlements Act 1986.  She applied for an increase in the amount of the pension on the ground that the varicose veins from which she suffered were war‑caused.  The respondent refused the application.  That decision was affirmed by the Veterans’ Review Board.  The Board’s decision was affirmed by the Administrative Appeals Tribunal.  Pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 the applicant appeals to the Court from the Tribunal’s decision.

EVIDENCE BEFORE THE TRIBUNAL

2                     The essential facts were not in dispute before the Tribunal.  Evidence was given by the applicant and by a vascular surgeon who had examined her.  The applicant was born on 23 July 1922.  Soon after leaving school she began working at the Maribyrnong Munitions factory.  She remained there for two and a half years.  Her work involved assembling parts for mortars and explosive cylinders.  She stood for most of the time, mainly in one spot.  Her legs used to ache, but she ignored the pain.  She did not seek medical treatment.  On 27 May 1944 the applicant enlisted in the Australian Army Women’s Medical Service.  She remained in that service as a ward orderly until her discharge on 31 August 1945.  Her initial training, which she described as “rookie training”, was in Ballarat.  The work involved marching, and drills such as learning to stand at attention.  While at Ballarat she experienced a recurrence of the leg pain.  In July 1994 she was transferred to the hospital at Bonegilla near Wodonga in North Eastern Victoria, where she served until her discharge.  She described her work there as that of a “dogsbody”.  She cleaned the wards and fed and washed the patients.  Her legs continued to ache throughout her service.  She regarded it as part and parcel of service life.  She took no notice of the pain.

3                     The applicant said that the culture among personnel at Bonegilla was not to complain because it was assumed that a greater purpose was to be achieved by assisting those who were ill.  She was seeking an overseas posting, and believed that her prospects of obtaining such a posting would be harmed if she went to a doctor for treatment of her leg.  Those who sought medical treatment, especially for matters that were thought trivial, were subjected to ridicule by their colleagues.  Some workers had returned to ward duties in tears after having been rebuked by ward sisters for seeking treatment.  As a result of this, Colonel Wonderley, the medical officer in charge, took over the management of the staff clinic.  The applicant said he was a “fatherly gentleman” with whom she worked a lot.  Nonetheless she did not report her leg pains to him “because it was not the done thing and you didn’t do it unless you were dead on your feet”.  She said that if she had been aware that she had varicose veins she would have reported it.  In cross‑examination the applicant agreed that she had chosen not to report her leg pains or obtain treatment.

4                     Dr Kenneth Myers, a vascular surgeon, examined the applicant in November 1997.  He was of the view that the applicant had had varicose veins from the time she was employed at the munitions factory.  He regarded her as being “hardy”, and on present day standards would have expected her to have gone to a doctor for treatment.  He was of the opinion that having regard to the conditions of her service, it would have been impossible for her to justify taking the time off to manage her condition, either by injections or by an operation, which would have been the appropriate clinical management.  Dr Myers said that treatment has been available for varicose veins since the 1930s in the form of surgery, injections and support stockings.  Modern day technology has assisted in the diagnosis of varicose veins, particularly by the use of ultrasound.

THE LEGISLATION

5                     The applicant’s service was not operational service, and accordingly s 120(4) of the Veterans’ Entitlements Act 1986 required the Commission, in making any determination or decision on her application, to decide the matter to its reasonable satisfaction.  Section 120B(3) provides in part:

“In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:

(a)               the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b)               there is in force:

(i)                 a Statement of Principles determined under subsection 196B(3) …;

…

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”

6                     In 1995 the Repatriation Medical Authority determined under s 196B(3) a Statement of Principles concerning varicose veins.  Clause 1 sets out the factors that must exist before it can be said that, on the balance of probabilities, varicose veins are, or death from varicose veins is, connected with the circumstance of service.  They are

(a)               having congestive cardiac failure with increased venous pressure before the clinical onset of varicose veins; or

(b)               having thrombophlebitis of the lower limb or pelvic veins before the clinical onset of varicose veins; or

(c)               having an abdominal tumour causing lower limb venous obstruction before the clinical onset of varicose veins; or

(d)               having been pregnant before the clinical onset of varicose veins; or

(e)               inability to obtain appropriate clinical management for varicose veins.”

Clauses 2 and 3 are as follows:

“2.       Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (e) must be related to any service rendered by a person.

3.                  The factor set out in paragraph 1(e) applies only where:

(a)               the person’s varicose veins were suffered prior to a period, or part of a period, of service to which the factor is related; and

(b)               the relationship suggested between the varicose veins and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act.”

TRIBUNAL’S DECISION

7                     The Tribunal set out factor (e) of the Statement of Principles, and after examining the evidence concluded that it was not satisfied on the balance of probabilities that the applicant was unable to obtain appropriate clinical management for her varicose veins.  Its reasoning is contained in the following passages from its determination:

“41.     Great stress was made during the hearing of unpleasantness the applicant might have been exposed [to] by her peers had she sought treatment.  We could imagine that working in an environment of that type would be unpleasant and affect day to day relationships.  But on the balance of probabilities, a consequence of seeking treatment is not in our opinion to be elevated to the status of causing a person to have an ‘inability’ to seek medical treatment.

42.              … The applicant … readily acknowledged both to us and to the VRB that she chose not to seek treatment and did decide not to report her leg pains.

43.              In addition to the above, the applicant’s case was put upon the basis that the appropriate clinical management was only available from her place of employment, namely the Bonegilla Hospital where she was engaged in service.  We can think of no reason why the applicant in the presence of leg pain could not have approached a medical practitioner elsewhere.  This certainly could have been undertaken when she was off duty and with relative privacy.  She would not then have been exposed to the risk of unpleasant comments from her workmates and by reason of the knowledge held by the medical profession of the treatment of varicose veins since the 1930’s – as was told to us by Dr Myers – appropriate clinical management could have been obtained elsewhere.  We can see no reason why factor 1(e) need be considered only in the immediate precinct of the applicant’s service.  The ‘inability’ contemplated might be relevant in a theatre of war but surely not when the circumstances of this case and the location of Bonegilla is considered.

44.              Insofar as the applicant’s representative submitted that the applicant’s inability to obtain appropriate clinical management occurred by the absence of present day technology to diagnose the condition we respectfully agree with the submissions of Mr Herman.  Only contemporaneous medical standards, practices and technology can be considered.  The existence in the 1990’s of ultrasound technology, as an aid to the diagnoses of varicose veins, has no application in our opinion when considering whether there was an inability to diagnose varicose veins – because of the absence of the ultrasound technology – in the 1940’s.  Dr Myers told us of the knowledge of the condition from the 1930’s and the ready availability of medications and elastic stockings.  In any event we understood the evidence of Dr Myers upon the issue of ultrasound only to be relevant when doctors have a suspicion of varicose veins being the cause of presenting pain but without any obvious or demonstrable signs.  It seems to us that the concept of ‘inability’ has been confused with non‑existence.  That is, technology available only recently did not create an ‘inability’ to have access to it 50 years ago.  It did not then exist.”

GROUNDS OF REVIEW

Failure to consider s 120B

8                     It was submitted that the Tribunal had not dealt with the issue posed by s 120B(3)(a) – whether the material before it raised a connection between varicose veins and some particular service rendered by the applicant.  It is true that the Tribunal did not mention s 120B(3)(a).  But the requirements in pars (a) and (b) of s 120B(3) must both be met before the Commission can be reasonably satisfied that a disease is war‑caused.  Since the Tribunal was of the view that the requirement in par (b) was not met, there was no need for it to consider par (a).

Failure to consider s 119

9                     Section 119 of the Act provides that in considering a claim, the Commission

“(f)      is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;

(g)               shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h)               without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i)                 the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii)               the absence of, or a deficiency in, relevant official records ….”

It was submitted that the Tribunal had failed to ask, under par (h), whether there were “difficulties” presented by the fact that equipment and techniques that are now available for the accurate diagnosis of varicose veins did not exist in 1944.  In my view the “difficulties” referred to in s 119(1)(h) do not encompass matters such as the primitive state of medical knowledge at an earlier time.  The paragraph is concerned with problems of proof inherent in the nature of the disputes that arise under the Act, which often concern events that happened many years ago.  It is not directed to impediments to diagnosis and treatment attributable to the state of medical science in earlier times.

Factor (e)

10                  It was submitted that the Tribunal had misconstrued factor (e).  The meaning of “inability” is that given by the Macquarie Dictionary (2^nd ed 1991) – “lack of ability; lack of power, capacity, means”.  See also the New Shorter Oxford English Dictionary (1993) – “The condition of being unable; lack of ability, power or means”.  The Tribunal was in my view correct in saying that a person who chooses not to seek medical treatment is not for that reason unable to obtain it.  The word “inability” is directed to an objective barrier to obtaining treatment, such as the absence of medical officers, and not to a lack of willingness to obtain treatment.  It was also argued that the applicant was unable to obtain medical treatment because she did not during her service know she had varicose veins.  If this would otherwise be an “inability” for the purposes of factor (e), it is ruled out by clause 2 of the Statement of Principles, because her lack of awareness is not a factor that is related to her service.

Clause 3 of the Statement of Principles

11                  The complaint here is that the Tribunal failed to consider the issues raised by clause 3 of the Statement of Principles.  The Tribunal set out the clause, but did not consider whether it applied to the applicant.  The reason is obvious.  Clause 3 operates as a restriction on factor (e).  If, as the Tribunal correctly found, factor (e) was not satisfied in its unrestricted condition, there was no occasion to examine the restriction.

Failure to consider s 9(1)(b) and (e)

12                  It was submitted that the Tribunal should have considered the question raised by s 9(1)(b), namely whether the applicant’s varicose veins arose out of or were attributable to war service, and that raised by s 9(1)(e), namely whether the condition was contributed to in a material degree, or was aggravated, by eligible war service.  On the view the Tribunal took, these questions did not need to be considered.  Since s 120B(3)(b) was not satisfied, there was no need to consider the issue the subject of par (a), namely whether there was a connection between the disease and service.  Nor was it necessary to consider s 9(1)(e).  The only reason for resorting to s 9(1)(e) is that it is one of the sections referred to in clause 3(b) of the Statement of Principles.  Since clause 3 operates as a restriction on factor (e), there is no occasion to deal with the clause if the factor is not satisfied in its unrestricted form.

CONCLUSION

13                  None of the grounds of review has been made out, and the application must be dismissed.

Associate:

Dated:              23 April 1999