FEDERAL COURT OF AUSTRALIA

Falconer v Repatriation Commission [2002] FCA 1336

VETERANS’ ENTITLEMENTS – Appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) seeking review of decision of Administrative Appeals Tribunal that applicant’s diseases were not war-caused – Administrative Appeals Tribunal found applicant’s hypothesis connecting his disease with war service was inconsistent with relevant Statements of Principles – “being obese” is a factor that must as a minimum exist in a reasonable hypothesis connecting applicant’s disease with war service - definition of “being obese” in Statements of Principles makes reference to Statement About the Causes of “Being Obese” issued by Repatriation Medical Authority – whether Administrative Appeals Tribunal erred in considering itself bound by Statement About the Causes of “Being Obese” – whether Repatriation Medical Authority is precluded from identifying particular types of obesity in its definition

Veterans’ Entitlements Act 1986 (Cth)ss 6A, 9, 120, 120A, 196B, 196V, 196Y

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Tisdall v Health Insurance Commission [2002] FCA 97 cited

NEILSON FALCONER v REPATRIATION COMMISSION

N 813 OF 2002

TAMBERLIN J

SYDNEY

30 OCTOBER 2002

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s 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

introduction

1                     On 21 May 1999, the applicant lodged a claim for a veterans’ pension with the Department of Veterans’ Affairs (“the Department”) in respect of conditions arising from post traumatic stress disorder, alcohol abuse, ischaemic heart disease and sleep apnoea.  The service which the applicant undertook in the Second World War was “operational service”, within the meaning of s 6A of the Veterans’ Entitlements Act 1986 (Cth)(“the Act”), and he was thus entitled to have his claim that his disease was caused by war service determined in accordance with s 120 of the Act, which concerns the standard of proof on the question of whether the claimed disease is “war-caused”.  In a decision of 10 September 1999, a delegate of the Repatriation Commission (“the Commission”) accepted the claims for post-traumatic stress disorder and ischaemic heart disease but refused the claim in respect of sleep apnoea.  The claim for alcohol abuse was also refused.

2                     A senior delegate of the Commission reviewed the decision made on 10 September in response to a letter to the Department written by the applicant’s wife on 7 December 1999, which asserted on the applicant’s behalf that his alcoholism and sleep apnoea were caused by war service. The senior delegate, in a decision given on 22 December 1999, revoked the determination that the applicant’s ischaemic heart disease was “war-caused” and refused the claim in respect of that disease.  The pension entitlement to the applicant was reduced from eighty per cent of the general rate under the Act to fifty per cent.

3                     The applicant then sought review by the Veterans’ Review Board (“the Board”) in respect of the decision of the senior delegate reducing his pension from eighty to fifty per cent of the general rate.  The Board affirmed the decision of the senior delegate on 14 December 2000.  The applicant then sought review of the Board’s decision by application to the Administrative Appeals Tribunal (“the Tribunal”), which on 9 July 2002, affirmed the decision under review.

4                     On 7 August 2002, the applicant lodged a Notice of Appeal to this Court from the decision of the Tribunal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), in which the question of law raised is framed as follows:

“(1) In considering whether Mr Falconer’s obesity was relevantly related to his operational service, did the Tribunal err by considering itself bound to determine that issue in accordance with the Statement about the Causes of ‘being obese’ made by the Repatriation Medical Authority on 16 August 1996?”

5                     The Statement of 16 August 1996 referred to (“the Obesity Statement”) issued by the Repatriation Medical Authority (“the Authority”), relevantly reads:

“The Repatriation Medical Authority was not able to determine a Statement of Principles in respect of obesity as it was of the view that ‘obesity’ is not a ‘disease’ or ‘injury’ as defined in subsection 5D(1) of the Veterans’ Entitlements Act 1986.  However ‘being obese’ is accepted as a causal factor in a number of diseases.

The Authority has recently reviewed the ‘sound medical-scientific evidence’ relevant to ‘being obese’ and has decided upon a new definition for it.  In considering this information, the RMA found that the causes of ‘being obese’ are one or more of the following factors preceeding [sic] ‘being obese’:

(a)       exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight;

…

‘baseline weight’ means the weight level which was being maintained prior to the effect of the particular factor specified; …” (Emphasis added)

6                     The Tribunal based its decision on a determination that the admitted obesity of the applicant was of such a type that it could be compensated for by adequate physical activity, but that the applicant had not undertaken such adequate activity and therefore found that the applicant did not satisfy factor (a), which was relied on by the applicant.  It affirmed the decision of the Board that sleep apnoea and ischaemic heart disease were not “war-caused” within s 9 of the Act.

7                     The consideration of the Obesity Statement arose in the context of the Tribunal having regard to the Statements of Principles, as formulated by the Authority, where the Authority determined that “being obese” was one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting either ischaemic heart disease or sleep apnoea with an applicant’s war service.  The two Statements of Principles, of which No 38 of 1999 relates to ischaemic heart disease and No 37 of 1997 relates to sleep apnoea, both define “being obese” in the following terms:

“… ‘being obese’ means (having - in No 38 of 1999) an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority’s Statement about the causes of ‘being obese’ signed by the Chairman of the Authority on 16 August 1996. …”

legislative framework

8                     At this point it is convenient to give a brief summary of the legislative framework which provides the context for determination of the question before the Court. 

9                     The circumstances in which an injury or disease is “war-caused” are set out in s 9 of the Act.  Under s 120(1) of the Act the Commission must determine that a claim in respect of a disease or injury relating to operational service suffered by a veteran was “war-caused” unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  By s 120(3) the Commission must be satisfied beyond reasonable doubt that the disease was war-caused unless, after consideration of the material before it, it is of the opinion that the material does not raise a reasonable hypothesis connecting the disease with the circumstances of the war service.  By s 120A(3) a hypothesis is reasonable only if there is in force a Statement of Principles determined under ss 196B (2) or (11) of the Act which upholds the hypothesis. 

10                  Section 196B(2) provides that the Authority (which is an expert body), if it is of the view that there is sound medical-scientific evidence that a particular kind of disease can be related to the operational service of a veteran, must determine a Statement of Principles in respect of that kind of disease which sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised making the connection with war service.

11                  The amendments to the Act (by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)) also provided for the establishment of “The Specialist Medical Review Council” (“the Council”) which under s 196V, is charged with the review of the contents of Statements of Principles, in accordance with any request under s 196Y of the Act, with respect to the state of medical-scientific evidence and with determinations as to whether Statements of Principle require amendment.  Members of the Council are chosen having regard to those particular branches of medical-science expertise which are necessary to exercise the functions of the Council.  Councillors must be experienced medical practitioners or medical scientists with at least ten years experience.  In respect of particular branches of expertise at least two members of the Council must have experience in the particular branch of medical knowledge in question. 

12                  The purpose of the amendments introduced in 1994 was explained in the Second Reading Speech (Hansard, House of Representatives, 9 June 1994, vol HR 195), where the Minister said (at 1808-1809):

“…Two of the initiatives in this bill are designed to ensure a more equitable and consistent system of determining claims for disability pensions for veterans and their dependants.  The changes will involve the establishment of a Repatriation Medical Authority and amendment of the eligibility criteria for special and intermediate rate pensions.

The first of these two measures, namely, the establishment of a Repatriation Medical Authority with power to issue binding statements of principles based on sound medical-scientific evidence, is intended to overcome these problems.  These statements of principles will be legislative instruments and will be subject to disallowance.  This means that when these statements of principles are laid before the parliament they are subject to public scrutiny and normal democratic processes operate to allow veterans, or veterans organisations, to raise objections with all political parties.

This bill will, in effect, define by reference to such statements of principles the concept of ‘reasonable hypothesis’, as it appears in subsection 120(3) of the Veterans’ Entitlements Act.  The result will be that a medical hypothesis linking particular kids of injury, disease or death with war service that does not have a sound medical-scientific base will no longer be sufficient to constitute a ‘reasonable hypothesis’.  This will be a matter solely for the expert medical authority to determine.  I stress that the opinion of a single medical expert may still be sufficient to constitute a ‘reasonable hypothesis’, provided that such opinion has a sound medical-scientific base, as determined by the authority.

…

The Repatriation Medical Authority will provide the appropriate forum for the resolution of technical medical-scientific issues.  This will ensure that there will be consistency on medical-scientific issues at all levels of the determining system.  The authority will be an independent body consisting of five eminent medical specialists.  The minister will be appointing the members of the authority after consultation with the ex-service community.

…

The statements of principles themselves, which will provide the template within which individual claims will be determined, will be binding on the Repatriation Commission and review and appeal bodies.  Once again, I stress that these statements of principles will be subject to testing by the parliament, giving all sections of the ex-service community ample opportunity to raise any concerns that they may have.  I stress that the bill establishes a comprehensive system of review of the contents of statements of principles.

…”

13                  The Explanatory Memorandum to the Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Bill 1994 (Cth) further elaborated on the role of the Authority.  It stated (at 3):

“Summary of proposed changes

In its approach to the concept of ‘reasonable hypothesis’ as it appears in subsection 120(3) of the Principal Act, the Government has sought to amplify the requirements before an hypothesis can be found to be reasonable so that an opinion held by a single medical practitioner, however eminent, that does not have sound medical-scientific support, will no longer be sufficient as the basis of a reasonable hypothesis.

As part of the requirement that hypotheses have medical-scientific credibility and to ensure consistency in the determining of claims, decisions on the reasonableness of medical hypotheses will be decided by an independent body of eminent medical practitioners and medical scientists to be known as the Repatriation Medical Authority.  Purely medical causation issues would not be decided by Departmental officers as delegates of the Repatriation Commission or, at review stages, by lawyers or laymen as at present.

The Repatriation Medical Authority will be given the power to determine from time to time those medical contentions that are based on sound medical-scientific evidence and that provide a relevant relationship between service and the disabilities claimed by applicants for pension and hence can form the basis for ‘reasonable hypotheses’ for the purposes of subsection 120(3).

…

In effect, it will be necessary, before an hypothesis can be found to be reasonable, for it to be based on sound evidence from the field of medical science: that is, an hypothesis to be accepted would need to be based on a degree of medical-scientific acceptability.

As an example, an hypothesis would not be able to be found reasonable if it were espoused by a medical practitioner whose views on the medical-scientific issues involved were speculative, fanciful, unsound or were undermined by the views of his or her peers.

On the other hand, full scientific proof will not be required for an hypothesis to be reasonable and more than a single hypothesis of causation in relation to a disease, injury or death can be reasonable.

…”

14                  It is evident from the Act and accompanying background that the Statements of Principles are formulated and kept under review by the Authority, and may be also reviewed by another specialist expert body (the Council).  The expert composition of these bodies, in my view, supports an approach whereby the Court should be reluctant to question the description of “obesity” selected under this regime for setting out factors which are relevant and sufficient to make the connection with war service.  In particular, due weight must be given to definitions of factors determined by the Authority because this is within both its statutory and expert role.

15                  Counsel for the applicant has submitted that in the present case, it is relevant to take into account that the Authority, on 22 February 2001, gave notice of its intention to carry out an investigation into whether “obesity” is a disease such that it may be made subject to a determination of a new Statement of Principles in respect of which factors may be prescribed.  It is said that the proposal indicates that because obesity is not currently regarded as a disease by the Authority, then it is not appropriate for the Authority to refer to causes of the diseases or factors which give rise to obesity itself, with the consequence that a statement as to factors involved in the causation of obesity cannot be part of a binding Statement of Principles and the causes of a factor, obesity in this case, are matters for decision by the Commission, which is not bound by the definition in par (a) in the Obesity Statement.  In my view, the circumstance that such an investigation has been initiated has no significance in relation to the determination of the present appeal.  The submissions for the applicant do not suggest that this investigation has reached any conclusion on this question which, in my view, could affect the outcome of this proceeding.  Nor do they support a conclusion that the Authority was not entitled to define “being obese” in the terms which it has selected.

the appLICANT

16                  The applicant served in the Australian Army from 1 October 1941 to 28 March 1946 and saw service in New Guinea and Moratai.  He is a “veteran” with the meaning of s 5C(1) of the Act and all his army service was “eligible war service” and “operational service”.  He had a myocardial infarcation in 1990 and the Commission accepted that he had ischaemic heart disease.  The Commission has not disputed that the applicant suffers from sleep apnoea.  The issue before the Tribunal was whether the applicant’s ischaemic heart disease and/or sleep apnoea were “war-caused” within the meaning of the Act.  It is common ground that the applicant was obese in relation to the heart disease for the relevant period and that he was also obese at the onset of sleep apnoea.  Essentially the question for consideration by the Tribunal was whether the applicant’s diseases were caused by his war service and the question on appeal is whether the Tribunal erred in law in concluding that they were not.

tribunal decision

17                  The Tribunal found that the material before it did not point to the applicant’s post-traumatic stress disorder making him incapable of adequate physical activity but considered that he preferred physically inactive pursuits.  It concluded that the hypothesis raised in relation to his obesity was not consistent with the second element of the cause of “being obese” as set out in par (a) of the Obesity Statement concerning physical activity and therefore affirmed the decision under review. 

submissions on appeal

18                  On appeal to this Court, the submissions of the applicant are encapsulated in the following paragraphs:

“26.     In the SoPs in Mr Falconer’s case, the RMA has identified the factors that need to exist for a hypothesis in respect of ischaemic heart disease and sleep apnoea to be reasonable.  One of them is obesity.  It was for the Commission and then the Tribunal to determine whether there was a reasonable hypothesis connecting that factor with the circumstances of Mr Falconer’s service.

27.       Once the RMA found that obesity was not a disease then it had no power to issue a statement as to its ‘causes’ or purport to incorporate that statement in SoPs.  It could no more issue a statement about the causes of smoking or heavy lifting, unless it first found them to be diseases.

28.       By issuing its obesity statement in a form and manner for which the Act makes no provision, the RMA has implicitly acknowledged that the obesity statement does not come within its statutory functions.  This may be why, on 22 February 2001, it gave notice of its intention to carry out an investigation to find out whether a SoP may be determined in respect of ‘obesity’.  A copy of that notice is annexed and marked ‘A’.

29.       Furthermore, the obesity statement does not comply with the requirement in s 196B for a statement to be based on either the reasonable hypothesis or the reasonable satisfaction standard of proof.  The second paragraph of the obesity statement states ‘the RMA found that the causes of ‘being obese’ are …’.  This ignores both the different standards of proof and the definition of ‘war-caused’ in s 9, which does not limit eligibility to where war service ‘causes’ the disease or injury.” (Original emphasis)

reasoning on appeal

19                  The power of the Authority is to determine a Statement of Principles “in respect of injury or disease” which sets out factors that must as a minimum exist.  The expression “in respect of the disease” used in conjunction with the expression “factor” is to be read in a broad sense because of the generality of those expressions and the expert nature of the body to which the selection and formulation of factors is entrusted.  The word “factor” itself is not defined.  But in ordinary usage it conveys the meaning of “one of the elements that contribute to bringing about any given result”: Macquarie Dictionary, 2nd ed. 1991. 

20                  There is a definition of “disease” in the Statements of Principles which incorporates by reference selected parts of the Obesity Statement.  Therefore, the incorporated description of obesity must be read as forming part of the Statements of Principles which, as the Tribunal has found, do not uphold the hypothesis in respect of either disease.  “Being obese” is not a free standing concept to which a general reference is made in the Obesity Statement.  Rather, it is obesity of a particular description which is incorporated as part of the Statements of Principles.  Therefore, it is only a certain class or subset of the condition of “being obese” which is incorporated as a binding Statement of Principles.

21                  In defining “being obese’ in this way it is not correct to contend that the Authority is not setting out factors but only “causes” of a factor.  In substance the Statements of Principles identify those types of obesity which must as a minimum exist before there can be a reasonable hypothesis that the disease to which they relate is “war-caused”.  The definition is not selecting all types of obesity as the relevant factor regardless of their cause or description.  There is nothing to prevent the Authority in the language of the relevant statutory provisions from identifying “being obese” by reference to that type of excess intake of calories which cannot be compensated by adequate physical activity.  Therefore, the relevant factor in both diseases is “being obese” as used in that special sense.  On its face such a description seems appropriate in relation to the concept of disease.

22                  In my view the Authority has not purported to determine that lack of adequate exercise is a factor in the disease.  The factor selected is “being obese” which is brought about by lack of adequate compensating exercise.  The description in par (a) of the Obesity Statement does not in terms purport to be the factor.  It is not an independent statement of the causes of the factor.  Because it is part of the description of the factor “being obese” it is properly within the Statement of Principles.

23                  As a general approach, in my view, there is nothing on its face which is inconsistent with the Act for the expert body to select a particular type of obesity as being the relevant factor to raise a hypothesis of connection with operational service.  This is an area where the expertise of the Authority has been brought to bear in defining and delineating the factors.  The determination of the expert body (or bodies, given the role of the Council) is such that the Court should give considerable weight to those views and should also be careful not to override the determination made in the exercise of that expertise unless it is clear that the determination travelled beyond the statutory function.  As to the role of expert bodies and the way in which expert evidence can be brought to bear, see Tisdall v Health Insurance Commission [2002] FCA 97 at [97]-[109]. 

24                  I therefore conclude that the challenge to the incorporation of the relevant paragraph of the Obesity Statement into the Statements of Principle as invalid must fail.  Accordingly, I dismiss the appeal with costs.

Associate:

Dated:              30 October 2002