FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Hancock [2003] FCA 711

VETERANS’ ENTITLEMENTS – determination of ‘kind of death’ – determination of applicable SoP – standard of proof – relationship with tests set out in Byrnes and Deledio

Veterans’ Entitlements Act 1986 (Cth) ss 120, 120A, 180A

Byrnes v Repatriation Commission (1993) 177 CLR 564 cited

Repatriation Commission v Deledio (1998) 83 FCR 82 followed

Repatriation Commission v Law (1980) 31 ALR 140 cited

Doolette v Repatriation Commission (1990) 21 ALD 489 cited

Fogarty v Repatriation Commission [2003] FCAFC 136 cited

Benjamin v Repatriation Commission (2001) 70 ALD 622 cited

REPATRIATION COMMISSION v AILEEN PATRICIA HANCOCK

S 292 OF 2002

SELWAY J

16 JULY 2003

ADELAIDE

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The decision of the Tribunal be set aside and the matter be remitted to the Tribunal for re-hearing in accordance with law.

3.                  Each party bear their own costs.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     On 19 September 1999, Mr Francis Hancock died in Port Pirie.  He was 82 years of age.  The respondent, his widow, claimed an entitlement to a pension under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) on the basis that Mr Hancock’s death was caused by his war service.  The applicant rejected that claim.  The respondent sought a review from the Administrative Appeals Tribunal (‘The Tribunal’).  The Tribunal found that Mr Hancock’s death was caused by his war service.  The applicant has appealed from that decision to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).  For the reasons given below, it is my view that the reasoning of the Tribunal involved an error of law and that the appeal should succeed.

2                     A number of facts are not in dispute.  It is not disputed that the respondent is Mr Hancock’s widow.  It is not disputed that Mr Hancock was a veteran.  It is not disputed that he saw war service in the 2^nd AIF from 6 August 1940 to 8 March 1946.  It is not disputed that, prior to his death, Mr Hancock was suffering from osteoarthrosis of both knees and that this was war-caused.

3                     It is not disputed that Mr Hancock had a colonoscopy on 6 August 1999 which showed a malignant lesion in the caecum.  He entered Port Pirie Hospital on 24 August 1999 for a right hemicolectomy plus a small bowel biopsy.  It was found that the cancer was much more extensive than had been expected.  It was sourced in the small bowel, but had spread.  In particular, approximately 60 per cent of the liver mass was replaced by tumour tissue.  The cancer was inoperable.  Four days after surgery Mr Hancock suffered a right-sided CVA.  He died some three weeks after the surgery.  The cause of death on the death certificate was stated to be ‘small bowel adenocarcinoma’.

4                     It is not disputed that Mr Hancock was suffering from small bowel adenocarcinoma.  It was not disputed that that condition was the primary cause of death.  And it was not disputed that that condition was not war-caused.

5                     What dispute there was in relation to the facts was in respect of the evidence of Mr Hancock’s general practitioner, Dr Betty.  Dr Betty treated Mr Hancock after the operation.  He provided reports and gave evidence that in his view the osteoarthrosis of both knees from which Mr Hancock was suffering contributed to and expedited his death.  Dr Betty said that, by reason of his immobility, Mr Hancock was not able to exercise properly.  As a result of this lack of exercise his view was that Mr Hancock’s life expectancy had been reduced from the 3-6 months that he otherwise would have expected, to a mere three weeks.  Dr Betty was not able to clearly identify the mechanism by which Mr Hancock’s immobility had shortened his life.  He made various suggestions – that the immobility caused depression, that the immobility caused the stroke, that the immobility caused a chest infection.  He accepted that each of these were speculative.  But his evidence was consistent that Mr Hancock’s arthritis expedited his death.

6                     On the face of it the evidence given by Dr Betty is surprising.  One would not readily assume that the cause of death of an 82 year old man suffering from inoperable cancer who died within three weeks of major surgery and within two weeks of suffering a stroke was arthritis of the knees.  Nevertheless that was the effect of Dr Betty’s evidence.  The only material put by the respondent in answer to it was a letter from the surgeon who conducted the operation, Mr Ali.  In that letter Mr Ali made the obvious comment that ‘it is a very difficult call to identify the pre-existent arthritis as a cause for a acceleration of the demise’.  Whether this constituted a disagreement with the views given by Dr Betty is left for inference.

7                     The parties are also in broad agreement as to the applicable legal principles. However, in reaching that agreement the parties have identified a number of legal issues relating to the proof of entitlements under the Act which were not expressly dealt with by the Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (‘Deledio’) at 97-98:

‘At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (that is, 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.’

8                     A couple of issues not expressly dealt with in this proposed methodology can be identified.  One is that there may be multiple medical conditions that cause a particular death.  For example, in this case it is obvious that the primary medical condition that caused death is that given on the death certificate - small bowel adenocarcinoma.  However, if Dr Betty is correct then there may have been another medical cause, at least in the sense of a medical cause which expedited the death.  This was osteoarthrosis of both knees.  It was necessary that both of these be considered.   If one of these medical causes of death (or ‘kinds of death’ to use the phrase in s 120A(2) and (4) of the Act) was itself caused by war service then this would be sufficient to establish an entitlement to a pension.  So much is clear from the terms of s 9 of the Act (e.g. ‘was attributable to’): see Repatriation Commission v Law (1980) 31 ALR 140 at 151 and see O’Loughlin J in Doolette v Repatriation Commission (1990) 21 ALD 489 at 492.

9                     Another problem is that there is necessarily at least two extra steps before step one of the Deledio methodology. The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation, on balance of probabilities. In this case those pre-conditions were that Mr Hancock was a veteran, that the respondent was his widow and that Mr Hancock had died. Secondly, in order to ascertain whether a SoP applies it is necessary to identify the ‘kind of injury’ or the ‘kind of death’ suffered by the veteran: see
s 120A(2) and (4) of the Act.  With most injuries and probably even most diseases this will usually be obvious enough (which is probably why the step was not mentioned in Deledio).  But in cases such as the present, the identification of the ‘kind of death’ is the critical step in the analysis.  In determining the ‘kind of death’, proof is on balance of probabilities: see s 120(4) of the Act and see Fogarty v Repatriation Commission [2003] FCAFC 136 at [34]; Benjamin v Repatriation Commission (2001) 70 ALD 622 at [53]-[54].

10                  In addition, the suggestion made obiter in paragraph numbered two of the above quotation from Deledio to the effect that if there is no SoP ‘the application must fail’ is clearly in error.  If there is no SoP or determination by the Commission under s 180A(2) of the Act, then the question of causation falls to be determined under s 120(1) and (3) of the Act, rather than s 120A.  This is made clear from the terms of s 120A(3) and (4).  The result is not that the application necessarily fails.  Rather the application would be dealt with in the manner discussed in Byrnes v Repatriation Commission (1993) 177 CLR 564 (‘Byrnes’) at 571:

‘The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.’

11                  The importance of the correct approach is highlighted by the facts of this case.  The Tribunal, faced with the evidence of Dr Betty should have proceeded as follows:

(a)           First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.

(b)          Next, the Tribunal was required to determine on balance of probabilities what ‘kind of death’ Mr Hancock had suffered.  This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.

(c)     If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.

(d)     If only a determination under s 180A(2) is applicable, then the application must fail.

(e)     If no SoP and no determination is applicable at all or to a particular “kind of death”, then the methodology in Byrnes is applicable in relation to that.

12                  In this case there is a SoP for both arthritis and for cancer of the small colon.  Indeed, there was no dispute that if the kind of death was only cancer of the small colon then war service was not a cause within the terms of the SoP.  On the other hand, if the kind of death was or included arthritis of the knees then war service was a cause.  The issue in dispute was not directly one about the causative relationship between war service and the various injuries and illnesses that Mr Hancock was suffering from.  The issue was whether Mr Hancock’s arthritis was related to his death.  If it was then the relevant SoP was applicable.  If it was not, then the SoP in relation to cancer of the small colon was applicable.

13                  Although it does not arise in this case, if some other ‘kind of death’ had been identified for which there was no SoP and no applicable determination then the connection (if any) between that kind of death and Mr Hancock’s war service would need to be determined using the Byrnes methodology.  So in this case, for example, if it had been established on balance of probabilities that cancer of the small colon was a cause of Mr Hancock’s death, and if there had not been a SoP in relation to cancer of the small colon, then it would have been necessary to determine whether the death was caused by Mr Hancock’s war service by using the Byrnes methodology.

14                  Mr Collett, who appeared for the respondent, argued gamely that the Tribunal had proceeded correctly to determine the ‘kind of death’ suffered by Mr Hancock.  In particular, he argued that the Tribunal had made a finding on balance of probabilities about the kind of death.  It is true that the reasons of the Tribunal disclose:

‘The Tribunal is further satisfied, considering the comments of O’Loughlin J in Doolette at page 492…that the death being “hastened because of the accelerated process of a disease, which acceleration was itself caused by a war-caused condition”, the death can be attributed to that war-caused condition (ie the osteoarthrosis of the knees).’

15                  However, looked at in the context, it is clear that the Tribunal was engaged in an analysis under s 120(1) and (3) of the Act, of the sort identified by the High Court in Byrnes.  For example:

‘It was further contended that the reduced mobility hastened death.  The standard of proof required is that a reasonable hypothesis must be raised.  If such hypothesis is raised on the evidence before the Tribunal then the applicant must succeed unless the respondent disproves it beyond reasonable doubt.

The focus of the dispute in this matter is whether a reasonable hypothesis was raised on the evidence, or whether or not it is a “mere possibility” or “pure speculation” that there was some connection between the accepted condition and the death of the veteran…

For the applicant to succeed in this matter the Tribunal will need to accept Dr Betty’s evidence and be satisfied to the relevant standard of proof that the veteran’s arthritis increased his immobility, and hence was a factor resulting in death.

Based on this evidence, the Tribunal is satisfied that, as a matter of fact, the hypothesis linking the veteran’s osteoarthrosis of the knees to his death was reasonable.

A reasonable hypothesis having been raised on the evidence before the Tribunal, the Tribunal finds that the respondent has failed to disprove the hypothesis beyond reasonable doubt.’

16                  In this case the Tribunal did not determine the ‘kind of death’ on balance of probabilities.  It did not determine, on balance of probabilities, whether a SoP was applicable.  That question necessarily preceded any analysis under s 120(3) of the Act.

17                  The failure of the Tribunal to determine the ‘kind of death’ on balance of probabilities was an error of law.  Consequently, the appeal will be allowed, the decision of the Tribunal will be set aside, and the matter will be remitted to the Tribunal for re-hearing in accordance with law.

18                  It appears that the main benefit to the respondent from obtaining the veteran’s pension is access to a card which provides benefits not generally available to other pensioners.  Presumably Mrs Hancock had the benefit of this card during her husband’s life.  It might be wondered whether the pursuit of these proceedings could be justified if the only effect of them was to remove those benefits from Mrs Hancock.  However, Ms Maharaj, who appeared for the applicant, put to me that the applicant was concerned in this case to establish the correct principle in light of the many occasions where it has been overlooked.  In circumstances where the purpose of the proceedings is to determine what law should be applicable in future cases there seems little reason why the respondent should not only be at risk of her benefit card, but also costs.  In the circumstances I think it appropriate that each party bear their own costs and I so order.

Associate:

Dated:              16 July 2003