FEDERAL COURT OF AUSTRALIA

Bailey v Repatriation Commission [2019] FCA 1840

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    The applicant applies for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of the Veteran’s Review Board which had affirmed a decision of the respondent, the Repatriation Commission. The subject of the Commission’s decision was a claim by the applicant that the medical condition from which he is presently suffering, namely cirrhosis of the liver, was war-caused within the meaning of certain provisions of the Veterans’ Entitlement Act 1986 (Cth) (the VE Act). In essence, the applicant claims his cirrhosis was caused by an increase in his drinking due to having been exposed to stressors while undertaking operational service.

2    For the reasons that follow the appeal is allowed.

Background

3    The applicant served with the Permanent Naval Forces from 10 July 1960 until 10 July 1972. There is a discrepancy in some of the evidence about whether the applicant commenced his service on 10 June or 10 July 1960, but nothing turns on this difference. The applicant joined the Royal Australian Navy at the age of 16. He trained at HMAS Leeuwin, before being posted to HMAS Anzac. It was while on the Anzac that the applicant says he started to drink alcohol. Although he was underage at the time, there was a beer ration supplied to the crew. At this time he said he was drinking between three and four glasses of beer per day.

4    The applicant undertook operational service on HMAS Voyager in the Malay Peninsula, Singapore, from 8 February 1963 to 1 March 1963, from 10 March 1963 to 29 March 1963 and from 15 April 1963 to 10 May 1963. He was not on board the Voyager at the time of its collision with the HMAS Sydney. However, he had friends on board who were injured or killed. The applicant claims that as a result of the distress caused by the collision, his drinking increased to around nine glasses of beer per day, and his marriage subsequently broke down.

5    The applicant also rendered operational service on HMAS Yarra, for various periods between 31 March 1965 and 9 June 1966, during what has become known as the Indonesia-confrontation. The applicant claimed that during this confrontation he was in a state of fear of attack and witnessed the gruesome aftermath of violence at sea while involved in the recovery of bodies from the water. By this time the applicant claimed he was drinking around 15 glasses of beer per day.

6    Following his service, the applicant remained a member of the Navy Reserve until his discharge on 30 September 1999.

7    The applicant has two disabilities accepted under the VE Act and for which he receives a pension, namely Chronic Bronchitis and Emphysema.

The legislative regime

8    The VE Act contains a legislative regime under which veterans who are incapacitated by war-caused injury or disease are entitled to a pension: s 13(1). A “veteran” (as defined in s 5C(1) read with s 7), who contracts a disease that “arose out of, or was attributable to” (s 9(1)(b)), any “operational service” (s 7(1)(a)), is to be assessed for a pension in accordance with the standard of proof contained in ss 120 and 120A of the VE Act. The applicant was a veteran as defined and during his deployments as set out above, he was engaged in ‘operational service’ as defined in ss 6 to 6F of the VE Act.

9    The question in this case is whether the applicant’s disease, cirrhosis of the liver, was “war-caused”. This question requires consideration of ss 120 and 120A of the VE Act. Those sections require a four step analytical process.

10    This four step process was explained by the Full Court in Repatriation Commission v Deledio [1988] FCA 391; 83 FCR 82 (at 92):

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 [Statement of Principles] 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.

11    Section 120(1) of the VE Act provides for the standard of proof to be applied:

(1)      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.

Procedural background and the decision below

12    On 29 May 2015 the applicant made a claim to the Commission for an increase in his disability pension due to cirrhosis of the liver caused by drinking alcohol, which drinking was caused by the applicant’s operational service. The applicant claimed an increase in his pension from the rate of 100% of the General Rate to which he was, and remains, entitled due to recognised disabilities.

13    On 9 October 2015 the Commission rejected the claim. It concluded that the cirrhosis was not caused by the operational service. The Commission found that the applicant was a regular drinker before the commencement of his operational service, and further, that his operational service did not exacerbate this condition.

14    On 23 October 2015 the applicant appealed to the Veterans’ Review Board, which affirmed the Commission’s decision on 27 September 2016.

15    On 23 November 2016, the applicant applied to the Tribunal for review of the decision of the Veterans’ Review Board. The applicant was represented at the Tribunal by counsel and gave evidence.

16    The Tribunal rejected the appeal: Bailey and Repatriation Commission (Veterans' entitlements) [2017] AATA 1909. In the Decision Record, under the heading “Tribunal’s deliberations” the Tribunal set out four headings corresponding to the four step analysis in Deledio referred to above.

17    Under heading “Stage 1: Hypothesis Connecting Cirrhosis With Mr Bailey’s Service?” the Tribunal noted there was no dispute as to whether the applicant had the disease as claimed (cirrhosis) (at [50]). The Tribunal stated that:

The hypothesis relied upon by Mr Bailey is that his operational service in 1963 caused anxiety, which caused him to drink increased quantities of alcohol. He contends that his drinking remained at that increased pattern during his subsequent Navy service and beyond, causing him to satisfy the SoP requirement of at least 110 kilograms of alcohol within a 10 year period prior to the clinical onset of his cirrhosis. I find it is possible from the available evidence to construct that hypothesis as a starting point for further investigation.

18    Under the heading “Stage 2: Statement of Principles in Force?” the Tribunal found that an applicable Statement of Principles existed, being the Statement of Principles Concerning Cirrhosis of the Liver, dated 20 December 2016. As noted by the Tribunal, the Statement of Principles required that 110 kilograms of alcohol be consumed within a 10 year period prior to the onset of clinical cirrhosis. The Tribunal found that the applicant’s alcohol consumption met this requirement but stated at paragraph [53] that:

Paragraph 10(1) of the SoP, however, requires that the existence of any factor ‘must be related to the relevant service rendered by the person.’ Apart from the quantum of Mr Bailey’s alcohol consumption, it must also be related to his war service. A key question to consider, therefore, is the reasonableness of the hypothesis advanced by Mr Bailey.

(Emphasis in original)

19    Under the heading “Stage 3: Reasonableness of Hypothesis?’ the Tribunal construed the question to be answered as “whether the hypothesis raised by Mr Bailey is reasonable for the purposes of section 120(3) of the Act” ([54]). The Tribunal further stated “[i]t is not necessary at this stage to determine the factual correctness of the hypothesis, but whether there is material before me pointing to his cirrhosis being connected to his operational service consistent with the template in the SoP, which therefore requires determination under section 120(1) of the Act.”

20    The Tribunal next considered several factual matters it regarded as germane to the question of the reasonableness of the hypothesis. First, at paragraphs [55] to [57], the Tribunal considered the applicant’s evidence concerning his alcohol consumption prior, during and after his operational service. The Tribunal considered results of an Alcohol Questionnaire the applicant completed in 2015, in particular how his results from that questionnaire conflicted with certain statements he had made before the Tribunal (at [55]). After considering the applicant’s evidence as to alcohol consumption the Tribunal stated (at [57]):

The material before me points to a pattern of excessive alcohol consumption by Mr Bailey prior to his operational service in 1963. On his own evidence, this increased beyond the claimed baseline of 10-15 beers on other occasions prior to his operational tour. Examples include while serving with HMAS Sydney in 1962 and also during highly-anticipated shore leave in places like Japan and the Philippines. In that respect, the evidence points to Mr Bailey choosing to engage in a consistent pattern of excessive alcohol consumption prior to rendering operational service in 1963.

21    The Tribunal then considered the evidence concerning the stressors the applicant claimed to have encountered during his service (at [58] to [63]). In particular, the Tribunal considered the oral evidence given by the applicant to the Tribunal about encountering the corpses of a “significant number of Indonesian military personnel” during his service. After the applicant’s evidence in chief and cross-examination had concluded, counsel for the respondent sought leave to provide written submissions and historical records of the Indonesia-confrontation to disprove the applicant’s evidence. The applicant objected to this on several grounds, including on the basis of the rule in Browne v Dunn (1893) 6 R 67 (at [60]). The correctness or otherwise of the evidentiary approach at the Tribunal is not in issue in this appeal. Ultimately, further written submissions were filed by both the applicant and respondent and were considered by the Tribunal (at [58]-[63]).

22    The Tribunal considered relevant historical records and submissions in paragraphs [64] to [70] of the Decision Record. At [70] the Tribunal concluded that the historical record did not support the applicant’s statements. The Tribunal stated (at [70]):

… I consider it highly implausible that incidents of the significance described by Mr Bailey would have gone unrecorded in the Official History or the Reports of Proceedings lodged by HMAS Voyager or HMAS Vampire. Additionally, in light of the activities recorded in the historical documents as having been undertaken by HMAS Voyager during Mr Bailey’s 1963 operational service, they do not point to him being put in a ‘life-threatening situation’ as a result of threats from Indonesian ships or aircraft during patrols in the Malacca Straits. I accept that these are Mr Bailey’s recollections and that he may believe these incidents occurred in the terms he describes, but I place more weight on the stronger objective evidence contained within the historical documents.

23    The Tribunal again considered the applicant’s pattern of alcohol consumption, stating (at [71]):

In relation to his alcohol consumption, Mr Bailey’s evidence points to an established pattern of heavy consumption prior to his operational service. This continued during the shore leave he and his shipmates were granted during HMAS Voyager’s operational tour in early 1963. The evidence points to opportunistic binge drinking with comrades before, during and after his operational tour, rather than a response to either general or specific stressors during operations. The causal link Mr Bailey seeks to make between his operational service in 1963, his increased drinking behaviour, and a diagnosis of cirrhosis three years ago, is too remote and tenuous. The evidence does not point to his war service as an operative cause of his excessive drinking, nor does it ‘forcefully point to a conclusion of a connection’. Even with an eye to the beneficial intent of the Act, it cannot be said Mr Bailey’s excessive consumption of alcohol would not have occurred but for the rendering of his operational service in 1963. The other two periods of increased alcohol consumption, which Mr Bailey says resulted from the Voyager accident and during his resettlement in Hamilton after Vietnam, are unrelated to his operational service.

(emphasis added)

24    The Tribunal concluded its consideration of the third step in the Deledio analysis at [73], stating:

While it is not contested that Mr Bailey consumed the requisite quantity of alcohol, section 10 of the SoP also requires that factor to be related to his operational service. The whole of the material before me does not point to a discernible pattern of increased alcohol consumption, related to Mr Bailey coping with the general or specific stressors he relies upon during his operational service. After considering the whole of the material before me, I am satisfied beyond reasonable doubt that the facts raised by the evidence do not give rise to a reasonable hypothesis.

(emphasis added)

25    Under the heading: “Stage 4: Whether the factual evidence satisfies the standard of proof?” the Tribunal stated “[a]s no reasonable hypothesis has been raised connecting Mr Bailey’s Cirrhosis with his relevant service, it is not necessary to consider the fourth Deledio stage” (at [74]).

Questions on appeal and CONTENTIONS

26    The applicant’s amended notice of appeal contained three Grounds as follows:

1.    The Tribunal misapplied s 120(3) of the Act by embarking on a fact finding exercise at step 3 of the process of reasoning referred to in … Deledio.

2.    The Tribunal erred in finding that the material before it did not point to a hypothesis connecting the veteran’s cirrhosis of the liver with the circumstances of his service.

[the amended notice of appeal deleted the previous Ground 3 and added a new Ground 4]

4.     The Tribunal erred by limiting its consideration of any causal link between the veteran’s post-war alcohol consumption and service to the circumstance set out at s 196B(14)(f) of the Act.

Grounds 1 and 2

27    By Grounds 1 and 2 the applicant contends that the Tribunal misapplied the analysis explained in Deledio. This contention was put primarily on the basis that the Tribunal conflated the analytical tasks required in the staged approach mandated in Deledio. In particular, the applicant contends that the Tribunal engaged in an assessment of the evidentiary support for the hypothesis at the third stage, thereby impermissibly accelerating that consideration to the third stage. The applicant contends that the effect of accelerating the evidentiary assessment to stage 3 was to deprive him of the benefit of the negative onus in accordance with s 120(1) of the VE Act at stage 4 of the analysis.

28    The applicant provided examples of the Tribunal impermissibly accelerating the evidentiary analysis to stage 3. These included:

(1)    The Tribunal’s statement at [70] that the historical materials “do not point to him being put in a life threatening situation”, and by placing “more weight on the stronger objective evidence contained within the historical documents”. These findings were said to constitute an impermissible weighing of the historical material against the oral evidence of the applicant.

(2)    The Tribunal’s application at [71] of the judgment of Tamberlin J in Borrett v Repatriation Commission [2000] FCA 1829, where the Tribunal stated that “[t]he evidence does not point to [the applicant’s] war service as an operative cause of his excessive drinking, nor does it ‘forcefully point to a conclusion of a connection’” (emphasis in original). The applicant contends that the Tribunal misapplied what was said in Borrett, and in particular that the above underlined passage taken from Borrett at [35] was said in connection with the analysis in stage 4.

(3)    The Tribunal’s conclusion at [73], as extracted above, that “[t]he whole of the material before me does not point to a discernible pattern of increased alcohol consumption” was characterised as a rejection of the applicant’s evidence before the Tribunal, or the impermissible assessment of its weight having regard to other evidence, for example the applicant’s consumption questionnaire, during stage 3.

29    The respondent submitted that the Tribunal had not impermissibly engaged in a weighing exercise in stage 3, but had rather examined the ‘causal link’ between the operational service and the cirrhosis. The respondent contended this analysis was both permissible and required in stage 3 in order to determine whether the hypothesis was reasonable.

30    The respondent relied upon what was said in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; FCAFC 111; 46 AAR 56; 96 ALD 536 by Allsop J (as His Honour then was) at [48]:

 (a)    The Tribunal must consider the whole of the material before it: s 120(3).

(b)    The Tribunal is to form an opinion whether the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of service: s 120(3).

(c)    The formation of that opinion involves consideration as to whether a relevant SoP upholds the hypothesis: s 120A(3).

(d)    At the stage of formation of the opinion in (b), involving the consideration in (c), no question of fact finding arises: Deledio 83 FCR at 97.

(e)    The formation of the opinion involves the reaching of a factual conclusion: Bull [v Repatriation Commission [2001] FCR 1832; 188 ALR 756] at 760-62 [17] to [25] and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material: Bull 188 ALR at 761 [22].

31    The respondent emphasised that although the task of assessment of the reasonableness of a hypothesis does not involve fact finding, it “necessarily involves some level of factual assessment” (citing Forrester v Repatriation Commission [2013] FCA 898 at [29] per Mortimer J).

32    The respondent submitted that the Tribunal’s assessment of the applicant’s case was an example of this testing reasonableness, not weighing evidence. The respondent’s written submissions state that the Tribunal’s statement at [70] “does not indicate that the Tribunal rejected the Applicant’s evidence. Rather, the Tribunal considered the Applicant’s evidence in the context of the evidence as a whole. That was a necessary part of the task of determining whether the evidence as a whole “raised” the hypothesis advanced by the Applicant.” Hence, it is said, this did not involve findings of fact.

33    The respondent put similar submissions in relation to the Tribunal’s reasoning in paragraphs [71] and [73], contending that the reasoning entailed a permissible assessment of the connection between the injury and the operational service, to assess the reasonableness of that hypothetical.

34    The question of whether there is a reasonable hypothesis for the purpose of s 120(3) is a question of fact. However, in reaching a conclusion about whether the material establishes a reasonable hypothesis, the Tribunal is not permitted to make antecedent findings of fact in the sense of making findings about a particular matter: East v Repatriation Commission (1987) FCR 517; Dixon v Repatriation Commission [1999] FCA 582; Bull v Repatriation Commission [2001] FCA 1832; Repatriation Commission v Patterson [2006] FCAFC 165; (2006) 94 ALD 66; Collins. The Tribunal must engage in a process of considering the whole of the material before it to ascertain whether it supports or points to the hypothesis, without finding that particular facts exist or not.

35    The applicant’s hypothesis is that as a result of his operational service, his consumption of alcohol increased to a level that met the applicable Statement of Principles, and that this increase in consumption caused his cirrhosis. There was evidence before the Tribunal of each of the necessary factual elements required to support the hypothesis. Some of the evidence was contested, as set out above. However, it is not permissible at stage 3 of the Deledio analysis to determine disputed facts or to prefer one characterisation of the evidence to another.

36    In my view the Tribunal erred at stage 3 of the Deledio analysis by expressly making relevant factual findings based upon its assessment of the weight of the evidence before it at that stage of the analysis. In the written submissions on behalf of the applicant (at [18] and [19]) it was submitted:

At [71] the Tribunal found "[t]he evidence does not point to [the veteran's] war service as an operative cause of his excessive drinking, nor does it 'forcefully point to a conclusion of a connection.” The italicised quotation was taken from Borrett v Repatriation Commission [2000] FCA 1829 at [35], a point in the judgment of Tamberlin J in which His Honour found that the Tribunal erred at step 4 of the Deledio process by failing to properly consider conflicting evidence when it came to making a determination on the question beyond reasonable doubt. The Tribunal's reliance on Tamberlin J's observation underscores its misunderstanding of its task at step 3 of the Deledio process which was to assess all the material before it but not to find facts or reject material. In finding that the evidence before it did not point to an increase in alcohol consumption in response to either general or specific stressors, the Tribunal necessarily rejected Mr Bailey's evidence that his rate of drinking increased considerably during the first tour as a result of stressors he experienced during his first tour and his anxiety about the threat from Indonesian aircraft and ships.

The foundation of the Tribunal's finding that the material did not point to increased alcohol consumption related to operational service was a rejection at [70] of Mr Bailey's evidence as to the nature of certain stressors and a rejection at [71] of his evidence of his increased drinking as a result of stressors experienced on the first tour. It is evident from its reasoning that the Tribunal rejected the hypothesis not on the facts raised by the material, but on the facts as found by the Tribunal.

37    The process of fact finding based upon a cogent assessment of the relative weight to be given to evidence before the trier of fact would not normally be a ground for complaint, much less amount to an analytical or legal error. On the contrary, analysis of the evidence and the weight to be given to aspects of the evidence relative to other evidence, tested and assessed against contextual or background facts is the essential craft of the primary trier of fact. It therefore seems incongruous to find error arising from the Tribunal undertaking that very task. However, the apparent incongruity evaporates once it is understood that the staged process mandated in Deledio is an astutely designed analytical guide to ensure that the ultimate question of whether the injury to the veteran was war-caused is not precipitated before giving the veteran the benefit of applying the beneficial standard in s 120(1) of the VE Act.

38    This section is often referred to as a ‘reverse criminal onus’. That shorthand expression may be apt to a degree, but not entirely. The applicant does not bear an onus and neither does the respondent. And it is only the “reverse” of the criminal standard of proof in that the Tribunal is required to be satisfied of the negative, namely that the injury was not war caused. The requirement that the Tribunal be satisfied of that negative upon the criminal standard of proof beyond reasonable doubt requires the Tribunal to affirmatively determine at the fourth stage, assuming it reaches that point, that the injury was not war caused.

39    The significant benefit of s 120(1) to the veteran is demonstrated if it is compared to the position of a claimant in a civil case. The claimant must establish the claim albeit on the lesser civil standard. If the claimant’s causation hypothesis fails then the claim fails, notwithstanding that the defendant’s alternative causal hypothesis is also rejected. In Rhesa Shipping Co SA v Edmunds and Another: The Popi M [1985] 2 All ER 712 the ship owner’s claim under policies of insurance for the total loss of their vessel, the Popi M, was rejected by the House of Lords because it had failed to prove that the vessel was lost due to a risk covered by the insurance. Lord Brandon of Oakbrook, with whom their Lordships unanimously agreed said (at 718):

My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr Watson: “How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.

In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned.

The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out.

The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.

In my opinion Bingham J adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them.

If ever a case asked to be treated as coming within the dictum with regard to burden of proof of Scrutton LJ in Cia Compania Martiartu v Royal Exchange Assurance Corporation [1923] 1 KB 650 at 657, this was it. The shipowners failed to establish that the ship was seaworthy, and they only put forward an extremely improbable cause of her loss. In these circumstances the judge should have found that the true cause of the loss was in doubt, and that the shipowners had failed to discharge the burden of proof which was on them.

(emphasis added)

40    Unlike the usual civil claim, the Tribunal was required, if it reached the fourth stage, to eliminate war as a cause, not to the degree of finding it impossible as described by Mr Sherlock Holmes, but to the criminal standard of satisfaction beyond reasonable doubt. The third alternative referred to by Lord Brandon of finding that the party who bears the onus of proof has failed to discharge the onus is not open to the Tribunal, if stages 1, 2 and 3 are satisfied and if in stage 4 it is not able to conclude beyond reasonable doubt that the injury was not war caused. This is plainly intended to confer a significant evidentiary and forensic benefit upon a veteran in the proof of causation; quite literally the benefit of the doubt, save in cases where it may be concluded beyond reasonable doubt that there is no causal connection between the war service and the injury.

41    The Tribunal at [70] to [73] expressly adverted to conflicts in evidence. In finding that the hypothesis was unreasonable it implicitly resolved those conflicts against the applicant. In assessing at paragraph [70] whether the applicant’s version of the stressors were present during his service in connection with the Indonesia-confrontation, the Tribunal implicitly rejected the applicant’s evidence.

42    For the reasons discussed above, this was impermissible at the third stage. The Tribunal therefore erred in its consideration of the application, and the matter must be remitted to the Tribunal for reconsideration.

Ground 3

43    Having regard to my conclusion in relation to Grounds 1 and 2, it is strictly not necessary to consider Ground 3 (being Ground 4 in the amended notice of appeal). However, in case I am wrong in relation to Grounds 1 and 2, for the following reasons I would allow the appeal on Ground 3.

44    The applicant’s third Ground is of narrower compass. He contends that the Tribunal’s reasoning at [71] (which as stated above, concerned the third step of the Deledio analysis), incorrectly narrowed the scope of the causal analysis the Tribunal was bound to undertake pursuant to s 196B(14) of the VE Act. 196B(14) provides numerous formulations of the test for causation to be applied when determining whether the service of a veteran contributed to or caused a particular injury, disease or death. The tests for causation in this subsection must be considered in circumstances, as present, where the Statement of Principles requires that the consumption of alcohol in the volume identified in paragraph 9(1) of the Statement of Principles was “related to service” for the purpose of paragraph 10 of the Statement of Principles: Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365 at [42].

45    The applicant contends that the Tribunal’s reasons that “[e]ven with an eye to the beneficial intent of the Act, it cannot be said that Mr Bailey’s excessive consumption of alcohol would not have occurred but for the rendered of his operational service” (emphasis added), discloses that the Tribunal applied only the ‘but for’ test for causation, contained in s 196B(14)(f), and impermissibly ignored the other tests for causation.

46    Subjection 196B(14) provides:

196B Functions of Authority

…

(14)     A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a)     it resulted from an occurrence that happened while the person was rendering that service; or

(b)     it arose out of, or was attributable to, that service; or

(c)     it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:

(i)     to a place for the purpose of performing duty; or

(ii)     away from a place of duty upon having ceased to perform duty; or

(d)     it was contributed to in a material degree by, or was aggravated by, that service; or

(e)     in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:

(i)     but for the rendering of that service by the person; or

(ii)     but for changes in the person’s environment consequent upon his or her having rendered that service; or

(f)     in the case of a factor causing, or contributing to, a disease—it would not have occurred:

(i)     but for the rendering of that service by the person; or

(ii)     but for changes in the person’s environment consequent upon his or her having rendered that service; or

(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 or her having rendered that service.

47    The applicant relied, in particular, on the absence of consideration of the tests for causation contained in ss 196B(14)(b) and (d). He contended that his disease “arose out of, or was attributable to, that service”, and (d), that it “it was contributed to in a material degree by, or was aggravated by, that service”. The applicant submitted that there were likely to have been multiple causal contributors to his alcohol abuse. He pointed to Chief Justice Mason’s warning in March v E & MH Stramare Pth Ltd (1991) 171 CLR 506 about applying the ‘but for’ test where there are multiple sufficient causes (at [22]):

The "but for" test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test "gives the result, contrary to common sense, that neither is a cause"... In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury … The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations. That in itself is something of an irony because the proponents of the "but for" test have seen it as a criterion which would exclude the making of value judgments and evaluative considerations from causation analysis …

(citations omitted)

48    The respondent submitted that, properly characterised, the Tribunal did not find there was no causal connection between the alcohol consumption and the cirrhosis only on the basis of the ‘but for’ test. The respondent pointed to the immediately preceding statement of the Tribunal at [71]. The Tribunal there said: “[t]he evidence does not point to his war service as an operative cause of his excessive drinking, nor does it ‘forcefully point to a conclusion of a connection’” (emphasis added).” The respondent submitted that this sentence demonstrates that the Tribunal also considered whether the consumption of alcohol was an ‘operative cause’ in addition to the ‘but for’ test. The respondent submitted that the Tribunal was not required to consider all of the formulae in ss 196B(14), and that having considered the ‘but for’ and ‘operative cause’ formulations, the Tribunal did not need to go further.

49    The Tribunal is not required to consider each formulation for causation if it is satisfied that by applying one or more of the criteria in ss 196B(14) it may allow the veteran’s application. However, to be faithful to the demonstrable legislative intention to in effect give the veteran the benefit of the doubt, if the Tribunal is not satisfied upon one of the criteria for causation, it is required to consider all criteria that may be applicable to the circumstances of the veteran’s claim. The Tribunal is required to consider whether one or more of the criteria pose a causation test that is more beneficial from the veteran’s perspective than an other or others.

50    The Tribunal used the language of ‘an operative cause’, presumably as a convenient shorthand for the diverse criteria for causation in ss 196B(14). There is no error in adopting a shorthand expression in the interests of clarity and economy of expression. But the use of a shorthand expression as a global reference to various criteria must be accompanied by an explanation of which of the sub-paragraphs in ss 196B(14) are encapsulated. The plain meaning of ‘an operative cause’ suggests a connection which is significant, direct and material. Because the Tribunal did not explain what it intended to encapsulate in the expression ‘operative cause’ it is not possible to discern whether it meant to encapsulate the criteria in ss 196B(14) which contemplate less direct factors as expressed in ss 196B(14)(b) and (d). For this reason, I am not satisfied that the Tribunal gave consideration to the diverse criteria in ss 196B(14) which may have been more favourable in their application to the facts of the applicant’s claim.

51    Further, the Tribunal did not explain whether the expression ‘operative cause’ used in [71] was used as a shorthand encapsulation as discussed above, or used in the sense described by the High Court in Goward v Commonwealth (1957) 97 CLR 355 at 364 (as adopted in the VE Act context by cases such as Repatriation Commission v Tuite [1993] FCA 43; 17 AAR 158 and, citing Tuite, Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711 at [34] appeal dismissed in Military Rehabilitation & Compensation Commission v Wall [2005] FCAFC 127; 88 ALD 1). Goward concerned a claim for compensation by the widow of an employee of the Postmaster-General. The deceased-employee was part of a team engaged in maintaining a particular length of telephone line. The team camped near a railway line on the occasion of the fatal incident and the deceased was struck on the railway line. The exact circumstances of the fatal incident were not known to the Court. The question for the High Court was whether the employee’s death arose out of his employment, which the magistrate below had resolved in favour of the employer (at 361). In dismissing the appeal, Dixon CJ, Williams, Webb and Kito JJ held (at 364-365):

The question is one of cause, but it is not enough to point to antecedent situations in the absence of which there could not have been an accident of the description involved. It is correct no doubt that if the camp had not been near a railway and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.

No special risk attached to the employment simply because the camp was near the railway. Anybody desirous of using the station or posting a letter must use the crossing unless he was on the south side of the line. It was a public crossing open for all to use.

52    The above passage expresses the principle well established in later authorities that it is not sufficient for the proof of causation to identify an anterior event or events ‘but for’ which the event which was the immediate cause of the injury would not have occurred (see, e.g. March as referred to above). I respectfully adopt the helpful description of the ‘anterior event’ by McHugh J as being “a background condition as opposed to a cause” (Roncevich v Repatriation Commission [2005] HCATrans 208). To be an ‘operative cause’ something more than being a background condition is required. If the Tribunal used the language of ‘operative cause’ in this sense, that should have been made clear.

disposition

53    The appeal is allowed with costs.

Associate:

Dated:    11 November 2019