FEDERAL COURT OF AUSTRALIA
Dunlop v Repatriation Commission [2002] FCA 1400
VETERANS’ ENTITLEMENTS – appeal from Administrative Appeals Tribunal affirming decision of Repatriation Commission – claim by widow of veteran for pension – entitlement – whether veteran’s death by suicide “war-caused” – reasonable hypothesis – whether hypothesis connecting veteran’s death with war service reasonable – whether there was in fact any material pointing to a reasonable hypothesis – whether Tribunal erred in finding no reasonable hypothesis existed – veteran’s depression found by Tribunal to have no causal connection with war service – application of Statement of Principles – whether Tribunal placed an evidentiary onus on widow, or misapplied s 119 of Veterans’ Entitlements Act 1986 (Cth) – whether Tribunal failed to distinguish “operational service” from “eligible war service” – whether Tribunal erred in application of principles in Repatriation Commission v Deledio (1998) 83 FCR 82 – adequacy of Tribunal’s reasons
Veterans’ Entitlements Act 1986 (Cth) ss 8(1), 9(1), 119, 120, 120A
Administrative Appeals Tribunal Act (1975) s 43(2B)
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Connors v Repatriation Commission [2000] 59 ALD 61
Repatriation Commission v McKenna (1998) 28 AAR 7
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Stares (1996) 66 FCR 594
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Webb (1998) 51 ALD 575
Grundman v Repatriation Commission (2001) 66 ALD 125
Repatriation Commission v Keeley (2000) 98 FCR 108
Gorton v Repatriation Commission (2001) 63 ALD 723
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Whetton (1991) 31 FCR 513
East v Repatriation Commission (1987) 16 FCR 517
Hill v Repatriation Commission (2001) 66 ALD 293
Repatriation Commission v Hill [2002] FCAFC 192
Bull v Repatriation Commission (2001) 188 ALR 756
ITA SYLVIA DUNLOP -v- REPATRIATION COMMISSION
V 650 of 2001
RYAN J
15 NOVEMBER 2002
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 650 of 2001 |
On appeal from a decision of the Administrative Appeals Tribunal.
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BETWEEN: |
ITA SYLVIA DUNLOP Applicant
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AND: |
REPATRIATION COMMISSION Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS:
1. THAT the application be dismissed.
2. THAT the applicant pay the respondent’s costs, such costs to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 650 of 2001 |
On appeal from a decision of the Administrative Appeals Tribunal.
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BETWEEN: |
Applicant
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AND: |
Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 This is an application by way of appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of the Veterans’ Review Board that the death of Raymond Anzac Dunlop (“the veteran”) had not been war-caused. The applicant is the veteran’s widow, having married him on 12 December 1944.
“Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that suicide or attempted suicide can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. The factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting suicide or attempted suicide or death from suicide or attempted suicide with the circumstances of a person’s relevant service are:
(a) being a prisoner-of-war before suicide or attempted suicide; or
(b) suffering from depression at the time of suicide or attempted suicide; or
(c) suffering from post traumatic stress disorder at the time of suicide or attempted suicide; or
(d) suffering from psychoactive substance abuse or dependence involving alcohol at the time of suicide or attempted suicide; or
(e) suffering from schizophrenia at the time of suicide or attempted suicide; or
(f) suffering from borderline personality disorder at the time of suicide or attempted suicide; or
(g) having experienced, witnessed, or been confronted with a traumatic event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, within the two years immediately before suicide or attempted suicide; or
(h) experiencing a severe psychosocial stressor or stressors within the two years immediately before the suicide or attempted suicide.”
3 Clause 6 of the same SoP contained, amongst others, the following definitions;
““post-traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(b) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg. unable to have loving feelings);
(vii) sense of a foreshortened future(eg, does not expect to have a career, marriage, children, or a normal life span); and
(d) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(e) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD code 309.81;
... ... ... ... ...
“relevant service” means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service.
... ... ... ... ...
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
4 The following findings of fact pertaining to the veteran are recorded in the Tribunal’s reasons for decision;
“So far as may be gleaned from the T-documents and from a large body of historical data provided by the respondent prior to the hearing – including the report and associated documents of Mr Piper a military historian - the deceased was an apprenticed ironworker when he was called up for service in the Army on 5 November 1941. He was then aged 19 years and 7 months. It appears that the deceased was the youngest in a family of 6 children. The deceased’s father served in the Great War as a soldier, but was mainly confined after discharge in the Repatriation General Hospital suffering from “shellshock”. The deceased rarely saw his father. It appears also that the deceased was close to his mother and sisters. He had a number of brothers who, having regard to their respective ages, were much older than the deceased.
On enlistment the deceased was graded as medically class 1 and his first posting was to an anti-tank unit. After a sea voyage to West Australia, he was transferred to a Light Anti-Aircraft (LAA) regiment. He served approximately 22 months in West Australia and his battery then travelled by rail to the Eastern States and embarked at Townsville on 23 March 1944 for Merauke, a small village on the south coast of (then) Dutch New Guinea, approximately 60 nautical miles (“n.m.”) northwest of the boundary with Papua.
The role of the LAA units was the protection of air fields from enemy aircraft. Their weapons were the Bofors 40mm gun. In addition to his battery having guns at Merauke,the battery had posts at locations considerable distances away. One post was at Tanahmerah, about 140 nm due north by air but almost twice this distance by sea and then upriver and another was at Eilanden River about 240 nm northwest up the coast from Merauke.
It is not known whether the Veteran served at these remote posts. His battery was withdrawn from Meraukeafter a period of about 7 months on 19 October 1944. There is no record of the battery having fired in anger during his tour of duty, or being fired upon. The Veteran then served in infantry training battalions in New South Wales until his discharge on 20 November 1945. During his period of service he was married on 12 December 1944.
On his discharge medical examination, the veteran stated that he had suffered from malaria and dysentery during service as well as tonsillitis, infected tooth sockets and dermatitis. No abnormalities were detected in his central nervous system nor were any emotional type injuries recorded.”
5 The Tribunal then described the applicant’s observations of the veteran noting that;
“She described her husband prior to enlistment as being ‘clean cut, good looking, wonderful and not rude’. She said he did not drink or smoke cigarettes. Mr Dunlop apparently had a dry sense of humour and a number of close friends. He was not interested in sports. He was the youngest of six children and there was eight years between him and the next youngest sibling. On return from service Mrs Dunlop described her husband as being “grown up and more mature”. She said he retained his sense of humour and had a kind personality.
Prior to service Mr Dunlop was an iron worker in a pram factory but she said that he “hated” his job. He eventually left it and was unemployed for one week but was contacted by another pram manufacturer and employment was offered. Thereafter Mr Dunlop returned to that industry but did not enjoy the work. He eventually became employed repairing musical instruments.”
6 The Tribunal next recounted the applicant’s account of the veteran’s development of depression, noting that she said “her husband was not depressed on return from service but eventually became depressed.” Then followed a summary of the veteran’s medical treatment, first from a general practitioner, Dr Jantz, and then from Dr Cunningham, a psychiatrist. As well, the applicant recalled the veteran’s attendance, on the recommendation of Dr Jantz, at weekly meetings or “recovery groups” of persons suffering from depression or anxiety. In respect of the veteran’s war service, the Tribunal summarised, as follows, the applicant’s recollections;
“Mrs Dunlop knew little about her husband’s service. She said there were many occasions where she attempted to engage him in conversation about the circumstances of his service but he would frequently respond by saying that it was “over” or that he “wanted to forget” about it. He also told her that he had no wish to discuss the circumstances. She did however learn from time to time that there were occasions where he would be engaged in “long marches” and that he was required to man a Bofors gun. She understood that there were “head hunters” in the district where he served overseas which caused him to be “petrified”. Mrs Dunlop said that her husband wrote to her daily when he was overseas and whilst he never referred to events of service, he frequently told her that he wanted to return home. She said there were occasions where he spoke about his colleagues having sustained injuries in “accidents” and she assumed that this may have been associated with “cleaning guns” or “playing sport”.
Mrs Dunlop said that her husband did not want to enlist or travel to Merauke because he feared that he would “end up like his father”. That is to say, because his father suffered injuries, which confined him as an inpatient in the Repatriation Hospital following World War I, he did not want to risk suffering a similar consequence. Additionally, Mrs Dunlop said that her husband wanted to be independent of doctors or hospitals associated with the Repatriation Commission because of the experiences endured by his father, which caused the deceased to take out private health insurance and be treated by doctors of his choosing.”
“Doctor Cole said that the history he obtained of the deceased refusing to talk about service and suffering from insomnia and a restless sleep pattern with nightmares were important diagnostic features of post traumatic stress disorder. He said that the deceased probably was also depressed, but depression is a separate diagnosis to PTSD and persons with PTSD are not necessarily depressed.
He also thought that the deceased suffered from an “adjustment disorder” as a consequence of his return to civilian life after he was discharged from service.
Doctor Cole said that he understood that the deceased’s service was “active” but he was not aware of the particular circumstances of it. He thought that the circumstances faced by the deceased after discharge from service was sufficient to satisfy the condition of “adjustment disorder” as it appears within the definition of “depression” within Instrument No. 71 of 1996. That is to say, the history given to him by Mrs Dunlop of the reaction of the deceased to his return to civilian life was sufficient to give rise to a diagnosis of “adjustment disorder”.
In cross-examination Doctor Cole said that he was not aware of the report prepared by Mr Piper, the military historian relied upon by the respondent. When he was informed that there were no reports of any enemy activity in Merauke after the deceased commenced his overseas service, Doctor Cole said that, whilst he would agree that there was no recorded account of any stressful event, and that his opinion as to the relationship between service and PTSD and depression would be strengthened if there was such evidence, he said that nothing was known about how the deceased “reacted as an individual” to service.
In re-examination Doctor Cole was asked whether he had heard anything in cross-examination which would “remove the reasonableness of the hypothesis”. Doctor Cole said he had not, but acknowledged that it was “more difficult” to maintain the “reasonableness” of the hypothesis that he had expressed in his report and in earlier evidence. He remained satisfied that the evidence of the applicant suffering disturbed sleep and refusing to talk about service was consistent with PTSD. He also thought that the applicant suffered from “depression” and had satisfied factor 5(b) of Instrument No. 71 of 1996 and also suffered from “adjustment disorder”.”
8 In relation to the evidence of Dr Walton, another psychiatrist, who had given evidence at the request of the respondent Commission, the Tribunal noted, first, that he had been unable to connect the veteran’s depression with his war service, observing that the deceased may have “suffered something but I don’t know it.” Dr Walton expressed an inability to comprehend how Dr Cole had concluded that the veteran had been suffering from Post-Traumatic Stress Disorder (“PTSD”) of which he said night sweats, insomnia and refusal to talk about war-time experiences were not necessarily indicators. Dr Walton had been unable to discern from the report of Dr Cunningham, the veteran’s treating psychiatrist, or any other material, anything to indicate that the deceased had been depressed before 1969. The Tribunal then noted;
“Doctor Walton said that he had learnt from Mrs Dunlop of the possibility of her husband being exposed to “head hunters” in Merauke, but he was not aware whether there was any actual contact or whether the deceased was in any “meaningful danger”.
When he was asked to refer to the discharge medical documents and the history of Mrs Dunlop that her husband had retained his sense of humour at discharge and was a quiet, mature person, Doctor Walton said that this did not indicate to him that the deceased at discharge was depressed.”
10 Finally, the Tribunal recounted the evidence of Mr Robert Piper, a military historian, whose research revealed that 172LAA Battery to which the veteran had been attached had been stationed at Merauke from March 1944. Although physical conditions there were unpleasant and difficult, Japanese air raids had ceased in 1943 and Mr Piper’s research indicated that the location was generally quiet. However, he did note an entry in the Battery diary for 30 June 1944 in relation to an officer “fatally drowned at post VI, body buried at sea.” As to that entry, according to the Tribunal, Mr Piper said;
“... there was nothing by that entry to indicate that the unit was under attack, or under threat, or that persons stationed there were in danger. He said if there was a drowning it could have occurred during leisure activity, or in a fast flowing stream. Alternatively, he said it was not beyond possibility that the officer could have been killed as a result of a crocodile attack and the entry of drowning would be in the circumstances less “shocking”. He said it would be unusual to bury a body at sea, when more usually any death during service would have been buried on land.”
11 As to the suggestion that the veteran had been exposed to “head hunters”, the Tribunal noted that Mr Piper had said;
“... that any native person who had a “bone through their nose” were described by the Dutch who colonised the area as “head hunters”. He said between four and five thousand Australians were in Dutch/New Guinea between 1943 and 1944 and there was never a report of any problem associated with “head hunters”. (Mr Piper referred to a photograph at page 47 of the book “My Back Seat War” which depicts a native person described as “a Merauke local – head hunter by trade”. The person is seated with his legs crossed and smiling. It would appear that the person is located at a military camp by reason of the presence in the photograph of a military vehicle and persons in uniform).”
12 Under the heading “Conclusion & Reasons For Decision”, the Tribunal noted that s 8 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) provides that the death of a veteran shall be taken to have been war-caused if:
“.....
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.”
The Tribunal appeared to accept that s 8(b) required only that war service should have made some contribution, of whatever degree, to the death of the veteran. It then made these findings of fact;
“In the present case, little is known about the deceased’s service in Merauke. He did not discuss it with his wife and positively discouraged any conversation concerning the service. Mrs Dunlop did tell us that on the rare occasions that he spoke about Merauke, he referred to accidents or injuries involving other service personnel. She understood that he was fearful of “head hunters” and being on bivouac. Whilst he wrote letters daily to Mrs Dunlop and wrote that he was anxious to return home, he did not refer to his circumstances in Merauke.
What may be learnt from other information available to us is that the deceased arrived in Merauke in 1944, yet the last recorded Japanese air raid was in 1943. There is no material available to us which points to any hostility or the use of weapons against the enemy. There is documented information concerning instruction to troops by an officer in charge of local conditions, yet it suggests no more than instructions given with respect to local circumstances. There is a reference in the war-diary to a soldier drowning and being buried at sea, yet on the evidence of Mr Piper – even if that did occur as recorded – it could have been associated with some leisure activity. The reference to “head hunters” suggests an importance or significance has been attached which is not warranted. On the evidence of Mr Piper the term “head hunter” is unfortunate, and probably not deserved. The reference to establishing an Australian Rules football team is in our view inconsistent with hostility and is more likely to be consistent with recreation and establishing or improving morale.”
13 The Tribunal then discussed the need created by s 120(3) of the Act for a reasonable hypothesis to be raised connecting the death of the veteran with the circumstances of the particular service rendered by the veteran. It noted, after referring to East v Repatriation Commission (1987) 16 FCR 517 and Repatriation Commission v Bey (1997) 79 FCR 364, that a reasonable hypothesis involves more than a mere possibility and must be “pointed to by facts even though not proved upon the balance of probabilities.”
“At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
“If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material…. If the material does raise the hypothesis, then the decision maker must determine whether it is reasonable”.
16 The Tribunal further relied in this context on these observations by Goldberg J in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16;
“For the purposes of s.120A(3) of the Act the hypothesis which has to be upheld by a Statement of Principles, is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated the hypothesis has to point to a connection, which starts with a disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and if need be by more than one Statement of Principles.”
17 After those references, the Tribunal concluded;
“For the purposes of the present application, there is a missing “link” or element in the hypothesis namely, material, which points to a contribution by service. It is not enough that the deceased suffered depression, which probably contributed to his suicide. The depression must be connected to service. We can find no material, which points to that connection. No hypothesis therefore arises.
In the alternative if we were to assume that something or some event occurred in service which raises a hypothesis we could not be satisfied that it is “reasonable”. At best it would be a hypothesis “left open” (refer East).
We could not find that the third stage of Deledio is satisfied because even if a hypothesis has been raised it does not contain “one or more of the factors which the authority has determined to be the minimum which must exist and be related to the person’s service (as required by sub-section 196B(2)(d) and (e)”) refer Deledio.
Additionally, we could not be satisfied that paragraph 4 of Instrument No. 71 of 1996 has been satisfied. It records-
“The factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person”.
The expression “related to service” is found at s.196B(14). We could not be satisfied that paragraph (g) is satisfied in the present case. That sub-paragraph reads as follows-
“A factor causing or contributing to an injury, disease or death is related to service rendered by a person if-
(g) in the case of a factor causing or contributing to the death of a person – it was due to an accident that would not have occurred or to a disease that would not have been contracted.
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his/her having rendered that service”.
In all of the circumstances the decision under review should be affirmed.
Was s 9(1) applicable to the present claim?
18 Mr De Marchi for the applicant invoked s 9 of the Act, sub-s (1) of which provides;
“Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
“(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:-
……..
(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;”
“Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.”
Did the Tribunal fail to distinguish operational service from eligible war service?
“40. Section 8 of the Veterans Entitlement’s Act 1986 (“the Act”) provides that the death of a veteran shall be taken to have been war-caused if -
“(b) The death of the veteran arose out of, or was attributable to any eligible war-service rendered by the veteran”.
41. There is no contest that the deceased was engaged in eligible war-service. Whether his death was “attributable” to the eligible war-service will necessarily depend on the circumstances.”
22 However, this submission reflected a concern by the applicant’s advisers to preserve to the applicant the benefit of the “reverse onus of proof” imposed by s 120(1) of the Act. That sub-section provides;
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
“(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e) the injury or disease from which the veteran died:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or …”
Did the Tribunal fail to exhaust the available possible connections with war service furnished by s 8(1)?
25 In the same context, it was submitted on behalf of the applicant that s 8 provides:
“Additional possibilities of connection between service circumstances and death.”
It was said that the Tribunal had not examined all of the possible connections. I have already indicated in the last preceding paragraph that s 8(1)(a) had no application to the death of this veteran. Nor could it be suggested that the death resulted from an accident while the veteran was travelling as contemplated by s 8(1)(c). The conditions stipulated by pars (d), (e) and (f) of s 8(1) are alternative to each other as indicated by the presence of the word “or” at the end of pars (d) and (e). I shall leave for later consideration whether the Tribunal failed to consider the application to the death of the veteran of the circumstances indicated by pars (d) and (e) as well as those stated in par (b).
Did the Tribunal wrongly impose an onus on the applicant to raise a reasonable hypothesis?
“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. …
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature”. Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.”
27 The passage from the Tribunal’s reasons to which Counsel for the applicant pointed as indicating the mistaken imposition on the applicant of a burden of proving a reasonable hypothesis was [48] in these terms:
“Despite the significant modifications to section 120 of the Act by the issue of Statements of Principles by the Repatriation Medical Authority and the associated amendments to the legislation (refer particularly section 120A), a “hypothesis” which is “reasonable” needs to be “raised”.”
28 However, I do not regard that passage as going beyond indicating a need for the hypothesis to be reasonable. The suggestion that the Tribunal also regarded the applicant as sustaining a burden of proving the reasonable hypothesis is contradicted by the next paragraph but one of its reasons:
“In East v Repatriation Commission (1987) 74 ALR 518 the Full Federal Court at 534 said:
“A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.” ”
29 In the present case, the hypothesis connecting the veteran’s death in 1972 with his war service in Dutch New Guinea in 1944 is that one or more stressful incidents or conditions during that war service precipitated the onset of depression which ultimately led the veteran to take his own life. The facts said to point to that hypothesis were the presence in the Merauke area of “head hunters” of whom the veteran later indicated some fear, the death, possibly by drowning, of an officer in the same unit and the possibility that the veteran was genetically predisposed to some type of emotional disturbance.
31 Mr De Marchi sought to overcome this difficulty by contending that the missing link could, and should, have been supplied by making reasonable and appropriate assumptions. He referred in his context to Repatriation Commission v Stares (1996)66 FCR 594. In that case, it was claimed that the veteran’s death from adeno-carcinoma of the rectum was attributable to habitual consumption of large quantities of alcohol. There was evidence that the veteran had not consumed alcohol before his war service but did after he came back. The hypothesis in that case had been propounded by a psychiatrist who, according to the primary judge, as quoted by the Full Court at 596, had said that;
“…the lack of information as to whether there had been a cause or causes of Mr Stares’ alcohol consumption in and after 1976, other than the stress of combat on operational service, made it difficult to confirm the hypothesis, but he adhered to the opinion that the probability was that stress caused by combat had contributed to cause the formation of, and perseverance in, the habit. There was persuasive evidence, and the tribunal found, "that the nature of [Mr Stares’] service in New Guinea as an infantryman was stressful.”
32 His Honour acknowledged that the Tribunal’s statement that “there is no evidence that [the veteran] consumed alcohol while on service” was correct. However, he continued in a passage quoted by the Full Court at 597;
“If it be assumed that the tribunal declined, and committed no error of law in declining, to draw an inference that Mr Stares consumed alcohol on service, the statement indicates that the tribunal failed to recognise that in some cases “the hypothesis may assume the occurrence or existence of a ‘fact’”. See Byrnes v Repatriation Commission (1993) 30 ALD 1; at 5; 177 CLR 564; at 570. (Byrnes’ case had not been decided when the decision of the tribunal was published.) Such an assumption, which Dr Sime made, could surely not, in the circumstances of this case, make the hypothesis unreasonable.”
33 In upholding the primary Judge’s conclusion that the Tribunal in Stares had erred in law, the Full Court referred to a passage in the joint judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes v Repatriation Commission (1993) 177 CLR 564, where it was observed, at 570:
“In some cases, the hypothesis may assume the occurrence or existence of a “fact”. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant’s hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.”
34 After venturing an explanation of the concept of a hypothesis, the Full Court in Stares continued, at 217;
“The question s 120 (3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran's injury with war service: see Byrnes’ case at ALD 6; CLR 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.
In the present case the learned primary judge did not hold that a reasonable hypothesis for the purposes of s 120 (3) may be raised by an assumed fact in isolation. The assumed fact was to be considered by the decision-maker in the light of all the other material. Much of that other material bore directly upon the hypothesis. It was, for example, common ground on the appeal that the material before the tribunal pointed to the fact that Mr Stares did not consume alcohol before his war service, that his war service exposed him to stressful events and that Mr Stares consumed alcohol in or about 1946 after his return from war service in that year. It was common ground too that the level of Mr Stares’ consumption of alcohol after 1976 (when he married Mrs Stares) was of the order of one or two dozen bottles of beer a week and that he drank quantities of port as well. There was also material before the tribunal in the form of the opinion of Dr Sime that there was a likelihood “unless there are other facts which become apparent which could link with it, that the setting of a bren gun mortar soldier seems the most likely background to stress drinking which carried on afterwards”. In cross-examination Dr Sime referred to the absence of other known stress factors; in response to questions about Mr Stares' history of drinking he said: “All I can say is that this man had a serious alcoholic habit which appears to have gone back probably to his military service, the only major stress that I can identify”.
35 In the present case, the postulated hypothesis depends on the assumed fact that either or both the veteran’s fear of “head hunters” or the death of the officer from his unit precipitated the onset of depression which ultimately resulted in his death. Unlike the evidence of Mr Stares’ habitual consumption of alcohol immediately after his discharge, the material before the Tribunal here did not include evidence that the veteran suffered from depression at the time of his return to civilian life. That was a matter, I consider, which the Tribunal was entitled to take into account as part of all the circumstances bearing on the reasonableness of the hypothesis in question.
Did the Tribunal ignore relevant considerations or take account of irrelevant considerations?
36 It was next submitted on behalf of the applicant that the Tribunal had failed to take into account relevant considerations related to the veteran’s fear of “head hunters”, the accidental death of the officer from his unit and the remote and hostile environment in which he had been required to serve. In the same part of the applicant’s submission it was contended that the Tribunal had taken account of irrelevant considerations being the fact that the last recorded Japanese raid on Merauke had been in 1943 and that there had been no “hostility or the use of weapons against the enemy.”
37 In the same context, it was urged that the Tribunal had erroneously transported a doubt concerning one part of the hypothesis propounded by the applicant to “create a doubt in another part of the hypothesis.” Reference was made to Repatriation Commission v Webb (1998) 51 ALD 575, where a Full Court of this Court considered a hypothesis raised by the widow of a deceased veteran that his death in 1985 from non-Hodgkin’s lymphoma (“NHL”) had been caused by his having commenced to smoke while serving in New Guinea between 1944 and 1945. It was observed early in the Full Court’s reasons that the hypothesis in that case consisted of three parts, namely that;
· “the war service of the veteran caused him to smoke;
· the veteran’s smoking caused him to contract NHL, which in general terms is a form of cancerous malignancy;
· NHL was a cause of the veteran’s death.”
38 Their Honours then undertook, at 582, this analysis of the Tribunal’s treatment of the overall hypothesis;
“As mentioned earlier the overall hypothesis was considered by the AAT to have three parts; namely, smoking caused by war service; smoking causing NHL, and NHL being the cause of death. Because it is common ground that the smoking was caused by war service, it is only the two remaining parts of the hypothesis that require consideration. The AAT accepted that the expert pathologists’ view that a malignancy diagnosis as to the cause of death was unlikely, was not sufficient to render the overall hypothesis unreasonable. Its conclusion, however, indicates that the conflicting evidence was considered to cast doubt on the overall hypothesis to such an extent that it had the effect of rendering the overall hypothesis unreasonable.
In our view, this is not the approach required by the authorities. The proper approach is to ask, in relation to each sequential part of the hypothesis, whether the facts point to that part of the hypothesis being reasonable. Once it is established that a relevant part of the overall hypothesis is reasonable, then any doubts as to the reasonableness of that part of the hypothesis must, for the purposes of s 120(3), be put aside, and the next part of the hypothesis considered. It is not appropriate to carry over or accumulate doubts in relation to the reasonableness of one part of the hypothesis and apply these doubts to a consideration of other parts of the hypothesis or to the hypothesis as a whole. In the present case, each sequence in the overall hypothesis raises a discrete question. What must be answered is the question whether the hypothesis pointed to by each sequential part which makes up the overall hypothesis is reasonable. If this is so then the overall hypothesis may be considered reasonable. The AAT did not do this.
We, therefore, conclude that the AAT adopted an incorrect approach when considering the reasonableness of the overall hypothesis.” (original emphasis)
39 As already indicated in these reasons, the Tribunal in the present case did not analyse the hypothesis proposed by the applicant into separate parts. Rather, it considered whether the hypothesis as a whole was raised or pointed to by the material before it. It held that it was not because the material did not reasonably suggest a connection between the war service and the depression which presumptively resulted in the veteran’s death. The Tribunal did not appear to doubt that part of the hypothesis which asserted that war service may precipitate depression or post-traumatic stress disorder. Rather, it was unable to identify any particular exigencies of the veteran’s war service as disclosed by the material which, in the light of his known history, could reasonably be regarded as having had such an effect on him. The known facts about the veteran’s war service in New Guinea were clearly relevant to be taken into account in that part of the exercise in which the Tribunal was engaged. Nor was this a case where the Tribunal, in the words of the Full Court in Webb “carried over” or “accumulated” doubts in relation to the reasonableness of one part of the hypothesis and applied those doubts to a consideration of some other part of the hypothesis or the hypothesis as a whole.
Sufficiency of the Tribunal’s reasons.
40 Under this head, Counsel for the applicant submitted that the Tribunal’s reasons were inadequate and insufficient to explain the conclusion which it reached. That was said to be a contravention of s 43(2B) of the Administrative Appeals Tribunal Act (1975) and a breach of the Tribunal’s duty at common law. Sub-section 43(2B) provides;
“Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”
“The factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person”. (emphasis added)
42 The reasons why those parts of the SoP did not uphold the hypothesis propounded on behalf of the applicant is made clear by the Tribunal in the first of the paragraphs from its reasons quoted at [17] above, namely that there was no material connecting or relating the depression instanced in cl 5(b) of the SoP to any relevant service rendered by the veteran as required by cl 4. It follows that, contrary to the submissions of Mr De Marchi, the Tribunal’s reasons did sufficiently explain why it rejected the asserted connection between the veteran’s war service and his depression and why it declined to accept as reasonable the hypothesis propounded on behalf of the applicant. The explanation common to both of those conclusions is that the Tribunal did not regard the material considered as a whole as supporting the connection or as pointing to, or raising, the hypothesis. There was no need for the Tribunal to explore “the relationship between the events experienced and service” because the events experienced, for all relevant purposes, constitute the service of the veteran on which the requisite hypothesis has to be erected.
43 For these reasons, the attack on the sufficiency of the Tribunal’s reasons cannot succeed.
Was the Tribunal wrong in its application of s 120(1) and s 120(3)?
44 In contending that the Tribunal had erred in this respect, Counsel for the applicant acknowledged that the Tribunal had set out in its reasons the steps which the Full Court in Deledio (supra) had ordained as necessary for the proper application of sub-ss 120(1) and (3). Nevertheless, it was said that the Tribunal had been confused in taking each of those steps and in particular in failing “to recognise the primacy of s 120(1) in the context of examining the hypothesis pursuant to s 120(3)” as required by Bushell v Repatriation Commission (supra) at 414 and Deledio at 96.
45 It is true that, in the extract from the joint judgment in Bushell quoted at [26] above, it was said that a hypothesis will be reasonable if the “raised facts” pointing to it are true. However, as the Tribunal here was at pains to point out, there was missing from the raised facts in the present case something like proximity in time between the war service and the onset of depression or some other fact connecting the veteran’s death with his war service. It was therefore open to the Tribunal, if not mandatory for it, to conclude that no reasonable hypothesis had been raised.
46 The quotation from the judgment of the Full Court in Deledio is set out at [14] above. It is clear from the first passage from its reasons reproduced at [17] above that the Tribunal considered that the present application failed to satisfy the first test postulated in Deledio because “no hypothesis arises.” There may be some circularity in the Tribunal’s alternative finding that any hypothesis which had been raised did not establish the relation necessitated by cl 4 of the SoP with one of the paragraphs in cl 5. That was probably because cl 4 which requires at least one of the paragraphs in cl 5 to be related to the relevant service rendered by the veteran effectively imports into the SoP the first test postulated by the Full Court in Deledio. However, for the reasons explained at [30] above, no error can be discerned in the Tribunal’s primary finding that the material did not raise or point to the requisite hypothesis. That primary finding is not invalidated by the understandable circularity or “confusion” created by the terms of cl 4 of the SoP. Indeed, the existence of the SoP and the operation of s 120A(3) required that, for the present claim to succeed, the SoP had to uphold a hypothesis connecting the veteran’s death with the circumstances of his particular service. Accordingly, this contention cannot avail the applicant.
Did the Tribunal err in its application of s 8 of the Act?
47 It was argued in written submissions filed on behalf of the applicant that the Tribunal had failed to examine each of the paragraphs of subs 8(1) of the Act and “in doing so it only tested the validity of the applicant’s claim by reference to eligible war service and not operational service.” The contention that subs 8(1)(f) of the Act was relevant to the present application has already been rejected for the reasons explained at [19] and [20] above. I have also explained at [21] to [24] why nothing turns on the Tribunal’s concentration on “eligible war service” rather than “operational service”. At [24] to [25] of these reasons I have concluded that neither par (a) nor par (c) has any application to the death of this veteran. It therefore remains to consider only whether the Tribunal should have contemplated the application of pars (d) and (e) of s 8(1) as well as of s 8(1)(b) on which it clearly concentrated. The relevant parts of the text of s 8(1) have been set out at [21] and [23] of these reasons.
49 Paragraph (e) of s 8(1) contemplates that death from an injury or disease suffered or contracted during eligible war service but not arising from that service or suffered or contracted before the commencement of eligible war service, will be deemed to have been war-caused if, in the opinion of the Commission, the injury or disease was materially contributed to, or was aggravated by, eligible war service rendered after the injury had been suffered or the disease had been contracted. In the present case, it was common ground that the veteran’s death had resulted from a disease, depression. However, there was no material suggesting that disease had been contracted before, during, or even immediately after, the veteran’s war service. There was therefore no basis on which the Tribunal could have invoked the extended concept of war-caused death erected by par (e) of s 8(1).
Did the Tribunal fail properly to apply s 119?
50 It was also contended that the Tribunal had been wrong in law in its application of s 119 of the Act. By way of explaining that contention it was asserted that “Much of the information missing was due to the passage of time and the unavailability of witnesses, including the deceased who had taken his life while relatively young.”
51 Section 119(1) provides that “in considering, hearing or determining, and in making a decision in relation to” various applications, claims and reviews in respect of which decision-making power is reposed in the Commission, 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, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
52 No specific attack has been made on the way in which the Tribunal informed itself for the purpose of determining the applicant’s claim. Nor has it been suggested that substantial justice or the merits of the applicant’s case have been disregarded or that there has been some pre-occupation with legal forms and technicalities. I take it, therefore, that this submission is directed to the evidentiary difficulties encountered by the applicant in identifying material raising or pointing to a hypothesis connecting the veteran’s death from suicide-induced depression in 1972 with his war service in New Guinea in 1944. It is self-obvious that an applicant asserting that the death of a veteran was war-caused no longer has the veteran available as a witness. However, that does not present an insuperable obstacle to a successful claim as the applicant may have access to detailed records, including communications made by the veteran during his or her lifetime, medical records, operational logs, unit histories and the like. It is also true, as s 119(1)(h) implies, that the passage of time may adversely affect the comprehensiveness or, indeed, the very availability of records of that kind. However, to acknowledge that implication is not to say that an applicant’s inability to identify any material pointing to or raising, the requisite reasonable hypothesis can be overcome by recourse to s 119(1)(h). As four members of a Full Court of this Court have observed in relation to s 119(1)(g) and (h) in Repatriation Commission v Bey (1997) 79 FCR 364, at 373;
“(b) The second complaint is that his Honour was wrong in ruling that the Tribunal had no obligation to raise any favourable inference pursuant to s 119 of the Act. Section 119(1)(g) requires the Tribunal (standing in the place of the Commission) to act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities. Section 119(1)(h) requires the Tribunal to take into account any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance. The respondent’s contention appears to be that in requiring a causative link between the arthritis and war service the Tribunal was acting contrary to s 119. For the reasons we have given, in order for the hypothesis advanced by the respondent to be reasonable there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal’s obligation to act in accordance with law: Collins v Repatriation Tribunal (1980) 48 FLR 198 at 209; Re McKay and Repatriation Commission (1988) 8 AAR 215 at 222; Kumer v Immigration Review Tribunal (1992) 36 FCR 544 at 555‑556. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it ‑ “without limiting the generality of the foregoing”. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions. In any event, we do not regard the phrase “difficulties that ... lie in the way of ascertaining the existence of any ... cause” as enabling the Tribunal to ignore current medical evidence that there is no proved connection between arthritis and war-caused stress.”
53 In my view, that passage can be paraphrased to apply with equal force to the Tribunal’s consideration in the present case of the hypothesis propounded to connect the veteran’s suicide with his war service. See also Grundman v Repatriation Commission (2001) 66 ALD 125 per Gray J, at 135.
Did the Tribunal misapply s 196B(2)?
54 Counsel for the applicant contended under this head that the Tribunal was required to identify, from the available SoPs, the one more favourable to the applicant. Section 196B(1) and (2) provide;
“(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
55 However, as Mr Hanks QC for the respondent pointed out, those sub-sections are directed to the Repatriation Medical Authority, not the Commission or the Tribunal. The obligation of the Tribunal in relation to SoPs is imposed by s 120A, sub-s (3) of which requires that, in the application of s 120(3), a hypothesis connecting the death of a veteran with the circumstances of his or her service is only reasonable if there is in force an SoP determined under s 196B(2) or s 196B(11) that upholds the hypothesis. By s 196B(4), the preceding sub-s (3) does not apply to a claim in respect of the death of a person if the Repatriation Medical Authority has not determined an SoP under s 196B(2) in respect of the kind of death met by that person.
56 I have already noted at [2] of these reasons that it was common ground that the SoP No 71 of 1997 entitled “Suicide or Attempted Suicide” applied to the present claim. Even if that understanding be wrong, it is clear, as explained at [41] above that the Tribunal regarded that SoP as the one which it was obliged by s 120A(3) to apply to a claim in respect of the death of this veteran. It is difficult to conceive how any other SoP could have been regarded as applicable. There was thus no scope for the Tribunal to have applied an SoP which was more favourable to the applicant than No 71 of 1996. This was not a case like Repatriation Commission v Keeley (2000) 98 FCR 108 where an applicable SoP had been determined on 12 January 1995 and later revoked on 26 September 1995 when it was replaced by a new SoP which imported additional criteria which the facts relevant to the deceased veteran did not raise. In the meantime, the veteran’s widow had, in December 1994, applied for a pension under the Act. It was held both at first instance and on appeal that the applicant, when she lodged her claim, had an accrued right to have it determined in accordance with the more favourable, revoked, SoP.
57 Keeley’s case was considered by Stone J in Gorton v Repatriation Commission (2001) 63 ALD 723 where, at the time when the veteran’s claim in relation to hypertension was made on 5 September 1996, the relevant SoP in force was No 83 of 1995. That SoP was succeeded by two later instruments, No 64 of 1998 and No 25 of 1999. For the purpose of the argument, her Honour assumed that the latest instrument was more favourable to the veteran than No 83 of 1995 so, as she noted at 731, “the situation here is the opposite of that considered by the court in Keeley.” Her Honour then concluded, at 732;
“The decision of the Court in Keeley can thus be seen as an exception to this position, dictated by the beneficial nature of the legislature [sic] to which the Court referred. The exception applies to preserve the benefit of an existing entitlement to be assessed in the context of a more favourable Statement of Principles. In my opinion, the AAT is obliged to consider the applicant's claim in the context of the Statement of Principles No 25 of 1999 unless Instrument 83 is more favourable. If the latter position is the case, then the applicant´s claim must be considered in the context of Instrument 83.”
58 Here the decision reviewed by the Tribunal had been made by the respondent on 4 January 1999 and subsequently affirmed by the Veterans’ Review Board on 21 October 1999. The only change to SoP No 71 of 1996 effected by No 177 of 1996 was to the definition of the expression “psycho-social stressor” quoted at the end of [3] of these reasons. It therefore could not be said that there was, at any relevant point, an occasion for the Tribunal to make a choice between two possibly applicable SoPs.
59 It was faintly submitted in the same context that the Tribunal, by preferring the evidence of Dr Walton to that of Dr Cole, had precluded itself from upholding the hypothesis propounded by the applicant because it did not consider whether the material raised the possibility that the veteran had suffered from PTSD. However, the definition of PTSD quoted at [3] of these reasons makes it an essential component of that disorder that the person has been exposed to a traumatic event, ie having experienced, witnessed or been confronted with an event that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others. The material in this case simply did not point to the veteran’s having experienced, witnessed or been confronted with an event of that kind.
60 Even if, in the light of Dr Cole’s evidence, the possibility had been admitted that the veteran had, as required by cl 5(c) of the SoP, been suffering from PTSD at the time of his suicide, it was still necessary, by force of cl 4 for the material to point to that factor having been related to some relevant service rendered by the veteran. The Tribunal found itself unable, as a matter of fact, to identify a relation of that kind.
Did the Tribunal err in its application of Deledio?
61 On behalf of the applicant it was said that the Tribunal had erred in applying the principles distilled by the Full Court in Deledio (supra) which “required the Tribunal to recognise that, if it had doubt about the accuracy of any sort of the factors which raised hypothesis, such doubt had to be expelled by reference to s 120(1).” That requirement was said to be supported by a passage from Deledio, at 96. At that page, the Full Court quoted with approval this passage from the judgment of Heerey J at first instance [(1997) 47 ALD 261 at 275], which the Full Court regarded as correctly stating the questions of law to be addressed by the decision-maker where the provisions of s 120(1) and (3) are to be applied in the light of the 1994 Amendments;
“Therefore when s 196B(2) says a factor `must... exist´ and `must be related to service´, it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc.). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv) one or more facts necessary to support it are disproved beyond reasonable doubt ; or
(v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact.”
62 Here the Tribunal found that the hypothesis propounded by the applicant was inconsistent with (not upheld by) the applicable SoP because the material said to point to or raise the hypothesis did not disclose the relation required by cl 4 between the relevant service rendered by the veteran and his suffering from depression or any of the other factors enumerated in cl 5. This was not a case where the material did suggest or point to the necessary relation but the Tribunal doubted whether it could be proved. In that event, as Heerey J pointed out in the passage just quoted, the Commission would have borne the onus of proving beyond reasonable doubt the non-existence of a fact necessary to sustain the hypothesis or the existence of a fact inconsistent with it. The present claim fell at the first hurdle of propounding, not proving, a reasonable hypothesis which fitted the template embodied in the SoP. See also Connors v Repatriation Commission (supra) at 70 [18] and Repatriation Commission v Gosewinckel (1999) 59 ALD 690, at 704 [61].
Did the Tribunal wrongly require the applicant to raise a reasonable hypothesis?
63 This was the last of the attacks on the Tribunal’s decision mounted by the applicant in her written submission. It called in aid a principle said to have been established by Repatriation Commission v Whetton (1991) 31 FCR 513. In that case, a Full Court of this Court identified what it called a “fundamental error” by the Tribunal which had expressed itself as “not satisfied” that there had been raised on the facts any hypothesis which connected the deceased veteran’s NHL with his exposure to asbestos during war service. The Full Court said, at 521;
“There is a fundamental error in this approach, since s 120 made it mandatory to reach a finding in favour of the respondent unless her case could be rejected beyond reasonable doubt or, applying subs (3), the Tribunal could form the opinion that the material before it did not raise the reasonable hypothesis referred to in the statute. It was not a question whether the Tribunal could be satisfied that there had been raised an appropriate hypothesis, a reformulation of the problem in terms obviously unfavourable to the respondent.
But there is an even more fundamental error in the Tribunal's formulation, as applied to the facts in evidence. It confuses the nature of a reasonable hypothesis with the circumstances which raise such a hypothesis in a particular case. In the present case, it was undoubted that the deceased had died as a result of the contraction of non-Hodgkin's lymphoma. It was also undoubted, and expressly conceded during the course of the evidence by the representative of the Repatriation Commission, that the deceased's operational service had exposed him to asbestos and asbestos dust. In the context of the concession, and upon the evidence, that exposure was substantial, and extended over a period of at least 3 years. If the hypothesis that substantial exposure for a period of that order may be a factor in the development in later life of non-Hodgkin's lymphoma is a reasonable hypothesis, there could be no question at all that the material before the Tribunal did raise that hypothesis in the particular case.”
64 Mr De Marchi pointed to several passages in the Tribunal’s reasons in the present case which he said convicted it of a similar fundamental error. The first was the concluding paragraph reproduced at [17]. However, in its context, that was a reference to a statutory definition of what is required in order for the Repatriation Medical Authority to form the view required for determining an SoP that a particular kind of injury, disease or death can be related to service rendered by a person. The Tribunal called it in aid in construing the SoP applicable to the death of the applicant’s husband. Paragraph (g) of s 196B(14) to which the Tribunal referred substantially mirrors s 8(1)(d) of the Act quoted at [23] of these reasons. For the reasons explained at [48] above, I can discern no error in the Tribunal’s treatment of the extended concept of war-caused death enshrined in s 8(1)(d) and s 196B(14)(g).
65 The Tribunal’s conclusion in the first of the paragraphs from its reasons quoted at [17] above that there was a “missing link” in the hypothesis raised by the material does not entail a view that there was any evidentiary onus on the applicant. It simply reflects the truism that an applicant must propound a hypothesis consistent with the material which coherently or reasonably connects the death with the circumstances of the veteran’s service. The Full Court in Whetton similarly recognised the need for an applicant to make a case or propound a hypothesis when it said that “s 120 made it mandatory to reach a finding in favour of the respondent unless her case could be rejected beyond reasonable doubt.” (emphasis added).
66 In a similar vein, Mr De Marchi pointed to the ultimate conclusion expressed in the second of the paragraphs quoted at [17] above that if, contrary to the Tribunal’s primary conclusion, a hypothesis connecting death with war service had been raised by the material, “we could not be satisfied that it is reasonable.” That conclusion, in my view, did not imply that the applicant had to discharge an evidentiary onus. Rather it was an application, in slightly different words, of the requirement recognised in the last sentence of the extract from Whetton which I have quoted above that the hypothesis propounded by an applicant must be a reasonable one. See also East v Repatriation Commission (1987) 16 FCR 517, where the Full Court observed, at 534;
“It would have been an error for the tribunal to see Mrs East as bearing an onus even to establish a reasonable hypothesis.
However, having said that, the practical situation remains that it will often be in the interests of a party to proceedings before the tribunal to adduce particular evidence; the reason being that, in the absence of that evidence, the tribunal will not be free to make the decision sought by that party. In a case where that party apparently makes a conscious decision, with the benefit of legal advice, not to deal with that matter the tribunal would be justified in assuming that the party had no evidence on the point which would assist the case: cf Jones v Dunkel (1959) 101 CLR 298.”
67 Likewise, it is a misunderstanding of the Tribunal’s reasoning in the remaining parts of the extract quoted at [17] above to regard its inability to “find that the third stage of Deledio is satisfied” or its statement that “we could not be satisfied that paragraph 4 of Instrument No 71 of 1996 has been satisfied” as signifying the imposition of an onus of proof on the applicant. In those passages, the Tribunal was doing no more than reiterate its conclusion that the material related to the veteran’s death and his war service did not raise or point to the relation required by cl 4 of the SoP between the depression which presumptively precipitated his death and the circumstances of his war service.
The effect of Hill v Repatriation Commission.
68 In his submissions in reply on the hearing of the application, Mr De Marchi referred for the first time to the judgment of von Doussa J in Hill v Repatriation Commission (2001) 66 ALD 293. That judgment was relied on as establishing that the rejection of a particular factor postulated by an SoP cannot occur at the third Deledio stage but only at the fourth stage of the process described in the passage reproduced at [14] of these reasons.
69 In Hill the applicant suffered from alcoholism which he sought to relate to two incidents in the course of service with the Royal Australian Navy from October 1965 to March 1978. In the first incident, he claimed to have been electrocuted while handling a pedestal fan in the cafeteria of an aircraft carrier, the HMAS Melbourne. The second incident involved a “Sea Venom” aircraft attempting to land on the Melbourne while she was en route from Singapore to Vietnam. The arrester hook intended to restrain the Sea Venom aircraft broke and the aeroplane fell into the sea. The applicant claimed to have then seen a man in the aircraft trying to punch his way out of the cockpit canopy. The applicant asserted before the Tribunal that the psycho-active substance abuse or dependence (his alcoholism) or PTSD had arisen from the Sea Venom incident or a combination of his electrocution and the Sea Venom incident which had aggravated the effects of the electrocution. von Doussa J summarised the conclusions reached by the Tribunal and why he found its reasoning to be erroneous in this passage at 299 - 300;
“The tribunal confined its consideration to the claim for PTSD and found that while the material before it pointed to the applicant meeting some of the criteria required by the relevant SoP for a finding of PTSD, it did not point to his meeting all of them. Accordingly it found that there was "no material pointing to" the applicant's PTSD arising out of or being attributable to the Sea Venom incident which occurred during his eligible war service. Accordingly the claim for PTSD failed at the third stage of the four stage approach advocated by the Full Court in Deledio. However, the tribunal went on to consider the fourth stage. It said (at (96)):
If I am incorrect in my conclusion, I am satisfied that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt. That relates to the man who Mr Hill said was trapped in the cockpit. Having regard to the material in the publication, Sea Fury, Firefly and Sea Venom, by Stewart Wilson, as well as the extract from HMAS Melbourne 25 Years by Ross Gillett, I am find [sic] beyond reasonable doubt that the Sea Venom was a two seater aircraft. On the same basis, I also find that the model of aircraft that crashed had both ejection seats and an ejection canopy. I also find that both the pilot and observer ejected from the aircraft. As there were only two people in the aircraft and as they had ejected, there could not have been any person trapped under the canopy. Even if only one person had ejected, one could not be trapped under the canopy as it must have ejected when the other person ejected. Mr Hill could not have seen a person trying to get out of the aircraft as it sank. It follows that I am satisfied that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt.
For these reasons the tribunal held that any PTSD from which the applicant suffers was not a war caused or defence caused injury or disease within the meaning of the Act, and affirmed the decision denying him a pension.
In my opinion, the tribunal fell into error of law in three significant respects. First, I consider that the tribunal erred at the third stage of the four stage approach in that it engaged upon a fact finding exercise. At the third stage the tribunal should still be dealing with the hypothesis. Fact finding, in so far as it is necessary, does not arise until the fourth stage. Moreover, in doing so, the tribunal departed from the requirement of s 120 (1) which requires that the commission (and in turn the tribunal) shall determine that a disease was a war caused disease unless it is satisfied, beyond reasonable doubt that there is no sufficient ground for making that determination. Second, I consider the truth of the fact about which the tribunal was satisfied was not a fact inconsistent with the hypothesis that disproved it beyond the reasonable doubt. Third, the tribunal failed to consider at all the claim based on psycho-active substance abuse or dependence, the SoP requirements for which are considerably less onerous than those for PTSD.”
70 His Honour explained that conclusion in part by observing at 302 [31];
“However, in my opinion, the tribunal erred in finding that the hypothesis did not fit the template requirement of para (a) in the way that it did. The hypothesis advanced by the applicant was that he did suffer an emotion of helplessness that was intense, and sufficiently so to cause him recurrent distressing recollections of the event. As an hypothesis, it fitted the requirement of para (a), and that was sufficient to meet the third stage requirement. It was not until the fourth stage that the tribunal should have engaged upon the fact finding exercise of whether in truth the applicant's emotion of helplessness was "intense". At that stage, it was for the commission to disprove the fact beyond reasonable doubt. That is a very different burden of proof to the one which the tribunal has applied in its reasoning in the passage set out above.”
71 After the hearing of the present application, a Full Court of this Court (Black CJ, Drummond and Kenny JJ) on 18 June 2002 published sub nom Repatriation Commission v Hill [2002] FCAFC 192, its reasons for judgment in an appeal from the orders pronounced at first instance in Hill. After reviewing the authorities examined earlier in these reasons, the Full Court pointed out, at [51];
“In this case, the Tribunal was required to measure any hypothesis raised (or pointed to) by the material before it against the “template” of the PTSD SoP; and, if the hypothesis as raised (or pointed to) by the material fitted the template, then the Tribunal could accept the hypothesis as a reasonable hypothesis for the purposes of s120(3) of the Act. If the hypothesis did not fit (because it did not contain the factors which the SoP set out as the minimum that must exist and be related to the veteran's service), then the hypothesis would not be reasonable for the purposes of s120(3) and Mr Hill's claim would fail. That is, before Mr Hill could succeed on his pension claim for PTSD, the Tribunal had to be satisfied that the material before it raised a hypothesis of connection that was upheld by the PTSD SoP. (If the Tribunal was so satisfied, then it had to go on to consider whether it was satisfied beyond reasonable doubt that the factual basis upon which the hypothesis depended did not exist.)”
72 The Full Court then went on to observe, at [52] that “the only possibility that fell for consideration by the primary judge was whether Mr Hill experienced a stressor prior to the clinical onset of PTSD.” For that hypothesis to warrant consideration, it was then noted;
“… ... the Tribunal had to be satisfied, amongst other things, that the material pointed to Mr Hill “witnessing” an event that involved “actual or threatened death”, and that he responded with feelings involving “intense ... helplessness or horror”: …… The hypothesis put forward by Mr Hill was that he had witnessed the crash of the Sea Venom aircraft on 28 April 1966 and had seen a man's unsuccessful attempt to escape from the cockpit; that he had responded with a feeling of what could be properly described as intense helplessness or horror; and that his response was experienced prior to the clinical onset of his PTSD or the clinical worsening of it. As a mere hypothesis, this fitted one of the templates in the PTSD SoP: cf stage 3 of the Deledio … …
As already noted, the primary judge stated, at [31] of his reasons, that it was sufficient to satisfy s120(3) and s120A(3) of the Act that the hypothesis relied on by Mr Hill fitted the SoP in this way. As the authorities show, however, in order to satisfy s120(3) and s120A(3) of the Act, there must be more than a hypothesis of connection that is consistent with the relevant SoP. In order to satisfy these provisions, the material must “raise” or “point to” such a hypothesis and this hypothesis, as raised or pointed to by the material, must fit the relevant SoP. Although the terms of [31] of his Honour's reasons may signify error, we doubt that his Honour in truth failed to appreciate this latter requirement.”
73 As I perceive it, a critical difference between the present case and Hill is that in that case a response of intense helplessness or horror was a reasonable assumption from what the material suggested Mr Hill had witnessed when the Sea Venom aircraft was lost. By contrast, in the present case, the material did not reveal or suggest what reaction, beyond a generalised feeling of fear, Mr Dunlop had to the proximity of people labelled “head hunters.” Nor did it disclose that he had any reaction at all (assuming that he knew of it) to the death of the officer from his unit. There was therefore missing from the hypothesis raised by the material, as the Tribunal found, an essential element prescribed by the SoP, namely a relation between the depression which is assumed to have led to the veteran’s suicide and the service rendered by the veteran. As Emmett and Allsop JJ said in their joint judgment in Bull v Repatriation Commission (2001) 188 ALR 756, at 761;
“The formation of the opinion called for by s 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, above, at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented.
If the tribunal examined all the material and if the tribunal followed the correct approach to its task under s 120(3) as enunciated in East, any error will be one of fact, unless the opinion was one which could not have been formed by a reasonable person who correctly understood the law under which he or she acted or unless the opinion was one which was not capable of being reasonably formed;”
74 It will be apparent from the analysis undertaken earlier in these reasons that I have not identified any error of law in the Tribunal’s formation of the requisite opinion in the present case. Nor have I been able to conclude that the opinion that the material did not disclose a reasonable hypothesis connecting the death of the veteran with his war service was one which no reasonable Tribunal could have formed. It follows therefore that nothing in the reasoning in Hill either at first instance or on appeal can avail the applicant.
Conclusion.
75 Despite the earnest and wide-ranging submissions of Mr De Marchi, I have been unable, for the reasons which I have endeavoured to explain, to discern any error of law by the Tribunal in its evaluation of the hypothesis raised or pointed by the material in this case. The application must therefore be dismissed with costs.
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I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 15 November 2002.
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Counsel for the Applicant: |
Mr D De Marchi |
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Solicitor for the Applicant: |
De Marchi & Associates |
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Counsel for the Respondent: |
Mr P J Hanks QC |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
22 April 2002 |
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Written Submission filed: |
9 May 2002 |
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Date of Judgment: |
15 November 2002 |
