Brew v Repatriation Commission

Introduction 12 The appellant was in receipt of a pension under the Veterans Entitlements Act 1986 (Cth) ("the Act"). She applied for an increase in the amount of the pension on the ground that the varicose veins from which she suffered were "war-caused": see ss 14 and 15 of the Act. The respondent's decision to refuse the application was affirmed by the Veteran's Review Board whose decision was affirmed by the Administrative Appeals Tribunal ("the AAT"). The appellant appealed to the Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal was dismissed with costs by the learned primary Judge (Sundberg J). The appellant has appealed from the judgment of Sundberg J and seeks an order that the varicose veins from which the appellant suffered were war-caused alternatively, that the matter be remitted to a differently constituted AAT for determination according to law. The facts 13 The evidence before the Tribunal was summarised by Sundberg J as follows: "The essential facts were not in dispute before the Tribunal. Evidence was given by the applicant and by a vascular surgeon who had examined her. The applicant was born on 23 July 1922. Soon after leaving school she began working at the Maribyrnong Munitions factory. She remained there for two and a half years. Her work involved assembling parts for mortars and explosive cylinders. She stood for most of the time, mainly in one spot. Her legs used to ache, but she ignored the pain. She did not seek medical treatment. On 27 May 1944 the applicant enlisted in the Australian Army Women's Medical Service. She remained in that service as a ward orderly until her discharge on 31 August 1945. Her initial training, which she described as 'rookie training', was in Ballarat. The work involved marching, and drills such as learning to stand at attention. While at Ballarat she experienced a recurrence of the leg pain. In July 19[4]4 she was transferred to the hospital at Bonegilla near Wodonga in North Eastern Victoria, where she served until her discharge. She described her work there as that of a 'dogsbody'. She cleaned the wards and fed and washed the patients. Her legs continued to ache throughout her service. She regarded it as part and parcel of service life. She took no notice of the pain. The applicant said that the culture among personnel at Bonegilla was not to complain because it was assumed that a greater purpose was to be achieved by assisting those who were ill. She was seeking an overseas posting, and believed that her prospects of obtaining such a posting would be harmed if she went to a doctor for treatment of her leg. Those who sought medical treatment, especially for matters that were thought trivial, were subjected to ridicule by their colleagues. Some workers had returned to ward duties in tears after having been rebuked by ward sisters for seeking treatment. As a result of this, Colonel Wonderley, the medical officer in charge, took over the management of the staff clinic. The applicant said he was a 'fatherly gentleman' with whom she worked a lot. Nonetheless she did not report her leg pains to him 'because it was not the done thing and you didn't do it unless you were dead on your feet'. She said that if she had been aware that she had varicose veins she would have reported it. In cross‑examination the applicant agreed that she had chosen not to report her leg pains or obtain treatment. Dr Kenneth Myers, a vascular surgeon, examined the applicant in November 1997. He was of the view that the applicant had had varicose veins from the time she was employed at the munitions factory. He regarded her as being 'hardy', and on present day standards would have expected her to have gone to a doctor for treatment. He was of the opinion that having regard to the conditions of her service, it would have been impossible for her to justify taking the time off to manage her condition, either by injections or by an operation, which would have been the appropriate clinical management. Dr Myers said that treatment has been available for varicose veins since the 1930s in the form of surgery, injections and support stockings. Modern day technology has assisted in the diagnosis of varicose veins, particularly by the use of ultrasound." The legislation 14 The appellant was entitled to make her claim for an increased pension and to have the respondent determine her entitlement to receive that pension in respect of any incapacity she suffered from the varicose veins as a "war-caused injury or war-caused disease": see ss 13, 14 and 19(3)(a)(i) of the Act. The matter was contested before the AAT on the basis that the relevant injury or disease (ie the varicose veins) suffered by the appellant was suffered or contracted before the commencement of the eligible war service rendered by her but was contributed to in a material degree by, or was aggravated by, her eligible war service: see s 9(1)(e)(ii) of the Act. As the appellant's service was not operational service her claim was to be determined on the standard of proof provided for by s 120(4) which required the Commission, in making any determination or decision on her claim, to "decide the matter to its reasonable satisfaction". Section 120(6) provided that neither the appellant nor the respondent was to bear any onus of proving any matter that is or might be relevant to the determination of the claim. 15 The note to s 120(4) provides that the sub-section "is affected by section 120B". Section 5U(b) provides that the note is to be taken as part of the sub-section. 16 Section 120B(3) relevantly provides: "In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if: (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) …; … that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service." 17 In 1995 the Repatriation Medical Authority determined under s 196B(3) a Statement of Principles concerning varicose veins. Clause 1 sets out the factors that must exist before it can be said that, on the balance of probabilities, varicose veins are, or death from varicose veins is, connected with the circumstance of service. They are (a) having congestive cardiac failure with increased venous pressure before the clinical onset of varicose veins; or (b) having thrombophlebitis of the lower limb or pelvic veins before the clinical onset of varicose veins; or (c) having an abdominal tumour causing lower limb venous obstruction before the clinical onset of varicose veins; or (d) having been pregnant before the clinical onset of varicose veins; or (e) inability to obtain appropriate clinical management for varicose veins." Clauses 2 and 3 are as follows: "2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (e) must be related to any service rendered by a person. 3. The factor set out in paragraph 1(e) applies only where: (a) the person's varicose veins were suffered prior to a period, or part of a period, of service to which the factor is related; and (b) the relationship suggested between the varicose veins and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act." 18 A pre-condition to the appellant's entitlement to be granted a pension in respect of the varicose veins she suffered was, inter alia, that the Statement of Principles concerning varicose veins upheld the contention that the varicose veins were, on the balance of probabilities, connected with her eligible war service. The relevant clause in the Statement of Principles for the purposes of the present case was cl 1(e). Accordingly, one of "the factors that must exist before it can be said that, on the balance of probabilities, varicose veins is connected with the circumstances" of the appellant's non-operational eligible war service was her inability to obtain appropriate clinical management for varicose veins. 19 In determining that matter the AAT was under a duty to arrive at the correct or preferable decision according to the material before it and in arriving at its decision was entitled to be guided by the issues that the parties choose to put before it for its consideration: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 per Brennan J and Noble v Repatriation Commission [1997] FCA 1159 at 15-16. 20 A primary issue the parties chose to put before the AAT for its consideration was whether on the balance of probabilities there was an "inability" on the part of the appellant to obtain appropriate clinical management for her varicose veins during the period of her eligible war service. The AAT's decision 21 The crux of the AAT's decision is contained in the following paragraphs. "37. We have no doubt that the applicant was a stoic, hard working and dedicated member of the Australian Army Medical Women's Service. We accept with [that] reservation that she worked in the presence of leg pain and that she was of the belief that persons who were admitted to the wards at Bonegilia were deserving of care and attention. We also accept that she ignored her own symptoms and did not seek relief from the duties for which she volunteered. We note also that the applicant contemplated overseas service such was her dedication. 38. We are not satisfied however that the applicant, on the balance of probabilities, had an inability to obtain appropriate clinical management. 39. On the one hand the applicant said that had she sought treatment she would have been subject to being labelled as a malingerer and/or would have been reduced to tears upon returning to ward duties as apparently was the experience of other personnel. On the other hand the applicant worked in a medical environment where responsibility for management of a staff clinic was assumed by Colonel Wonderley because of complaints of staff returning in tears. He was a person regarded by the applicant as being a 'fatherly gentleman'. Her compl[i]mentary reference to Colonel Wonderley and her reference to working frequently with him suggests to us that had she sought treatment of him he would have treated her with the respect that would be expected as between doctor and patient or between work colleagues. 40. The issue of inability to obtain appropriate clinical management is frequently raised in the Veterans proceedings subsequent to the introduction of Statements of Principles. The concept is frequently considered in the context of battle and overseas service and in the absence of medical officers. A situation of that type is diametrically opposed to the present circumstance where the applicant worked in Australia, as a ward orderly in a hospital where doctors existed and where a staff clinic had been established. There was accordingly no 'inability' to obtain 'appropriate' clinical management. 41. Great stress was made during the hearing of unpleasantness the applicant might have been exposed [to] by her peers had she sought treatment. We could imagine that working in an environment of that type would be unpleasant and [a]ffect day to day relationships. But on the balance of probabilities, a consequence of seeking treatment is not in our opinion to be elevated to the status of causing a person to have an 'inability' to seek medical treatment. 42. These conclusions might be different were we to have heard evidence of the applicant being subjected to some overwhelming psychological or emotional incapacity such as to prohibit her from obtaining appropriate clinical management whether it be by reason of the attitude of her peers or by the injury itself or some other circumstance. The applicant however in this case readily acknowledged both to us and to the VRB that she chose not to seek treatment and did decide not to report her leg pains. 43. In addition to the above, the applicant's case was put upon the basis that the appropriate clinical management was only available from her place of employment, namely the Bonegilla Hospital where she was engaged in service. We can think of no reason why the applicant in the presence of leg pain could not have approached a medical practitioner elsewhere. This certainly could have been undertaken when she was off duty and with relative privacy. She would not then have been exposed to the risk of unpleasant comments from her workmates and by reason of the knowledge held by the medical profession of the treatment of varicose veins since the 1930's - as was told to us by Dr Myers - appropriate clinical management could have been obtained elsewhere. We can see no reason why factor 1(e) need be considered only in the immediate precinct of the applicant's service. The 'inability' contemplated might be relevant in a theatre of war but surely not when the circumstances of this case and the location of Bonegilla is considered. 44. Insofar as the applicant's representative submitted that the applicant's inability to obtain appropriate clinical management occurred by the absence of present day technology to diagnose the condition we respectfully agree with the submissions of Mr Herman. Only contemporaneous medical standards, practices and technology can be considered. The existence in the 1990s of ultrasound technology, as an aid to the diagnoses of varicose veins, has no application in our opinion when considering whether there was an inability to diagnose varicose veins - because of the absence of the ultrasound technology - in the 1940s. Dr Myers told us of the knowledge of the condition from the 1930s and the ready availability of medications and elastic stockings. In any event we understood the evidence of Dr Myers upon the issue of ultrasound only to be relevant when doctors have a suspicion of varicose veins being the cause of presenting pain but without any obvious or demonstrable signs. It seems to us that the concept of 'inability' has been confused with non‑existence. That is, technology available only recently did not create an 'inability' to have access to it 50 years ago. It did not then exist. 45. In all of the circumstances we are satisfied on the balance of probabilities that the applicant did not have an inability to obtain appropriate clinical management for her varicose veins. In the circumstances this part of the decision under review must be affirmed. Factor 1(e) is not satisfied." Decision of the primary Judge 22 A number of issues were raised before the primary Judge but the issue upon which his Honour's decision turned, and the main issue argued on the appeal, related to whether the AAT had misconstrued cl 1(e) of the Statement of Principles. In that regard his Honour said: "It was submitted that the Tribunal had misconstrued factor (e). The meaning of 'inability' is that given by the Macquarie Dictionary (2nd ed 1991) - 'lack of ability; lack of power, capacity, means'. See also the New Shorter Oxford English Dictionary (1993) - 'The condition of being unable; lack of ability, power or means'. The Tribunal was in my view correct in saying that a person who chooses not to seek medical treatment is not for that reason unable to obtain it. The word 'inability' is directed to an objective barrier to obtaining treatment, such as the absence of medical officers, and not to a lack of willingness to obtain treatment. It was also argued that the applicant was unable to obtain medical treatment because she did not during her service know she had varicose veins. If this would otherwise be an 'inability' for the purposes of factor (e), it is ruled out by clause 2 of the Statement of Principles, because her lack of awareness is not a factor that is related to her service." Reasoning on the Appeal 23 The primary contention of the appellant was that the AAT and Sundberg J had misconstrued cl 1(e) by focusing entirely upon "objective barriers" to obtaining appropriate clinical treatment and thereby failing to have regard to "subjective barriers" to obtaining treatment. It was contended that in a particular case, but more specifically in the present case, the subjective barriers believed by the appellant to exist were capable of constituting or resulting in an "inability" to obtain appropriate clinical management for her varicose veins. 24 Counsel for the respondent did not dispute that subjective factors may, in an appropriate case, constitute or result in an inability to obtain appropriate clinical management but submitted that, as the arbiter of fact, it was plainly open to the AAT to conclude from the material before it that the matters relied upon by the appellant did not fall within cl 1(e). 25 It is well established that the Court is here concerned with beneficial legislation intended to confer significant benefits on veterans with the consequence that a beneficial, rather than a strict or narrow, approach should be taken to the construction of the legislation. In the present context that means that whether "inability" is established in a particular case is to be approached as a matter of practical reality rather than by a theoretical approach to that issue. 26 In my view Sundberg J was quite correct in treating the meaning of "inability" in cl (1)(e) as "lack of ability; lack of power, capacity, means" (Macquarie Dictionary (2nd ed 1991)) or "the condition of being unable; lack of ability, power or means" (New Shorter Oxford Dictionary (1993)). The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the "condition of being unable". Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case. 27 Thus, if Sundberg J was saying that cl 1(e) is confined to an inability that is an "objective barrier to obtaining treatment", I would respectfully not agree with his Honour. However, I doubt that his Honour was intending to exclude factors, whether external, objective or otherwise, that result in a claimant for a pension being in a "condition of being unable" to obtain treatment. 28 In my view, in context, Sundberg J was referring to circumstances the effect of which result in a claimant being unable to obtain treatment in the sense of any of the dictionary meanings of "inability" referred to by his Honour. Thus, as his Honour noted, the absence of medical officers would constitute a barrier in that sense but not a mere "lack of willingness to obtain treatment". His Honour ought not to be taken as having concluded that external factors, such as a threat of sanctions by superior officers if treatment is sought, cannot constitute or result in an inability to obtain treatment within the meaning cl 1(e) where, by reason of such factors, the claimant understandably concludes that she is unable to obtain appropriate treatment. 29 On the approach I take to the meaning of "inability" in cl 1(e) two aspects of the decision of the AAT raise matters of concern. The first is the suggestion in para 41 of the reasons of the AAT that "a consequence of seeking treatment" cannot be elevated to the status of causing a person to have an "inability" to seek medical treatment. Plainly, if the sanctions threatened are such that, as a matter of practical reality, the person threatened could not reasonably be expected to take steps to obtain treatment that could fall within "inability" in the sense discussed above. 30 The second aspect of the AAT's decision that causes concern is the further suggestion in para 42 of the reasons that subjective factors could constitute inability where the claimant was "being subjected to some overwhelming psychological or emotional incapacity such as to prohibit her from obtaining appropriate clinical management whether it be by reason of the attitude of her peers or by the injury itself with some other circumstance". In my view it would be erroneous to limit "inability" to "some overwhelming psychological or emotional incapacity". If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a "condition of being unable" to obtain treatment. 31 However, as has often been noted the reasons of an administrative tribunal are to be read as a whole and are not to be approached by extracting particular sentences which, taken out of context, may reveal an error of law. The task of the Court in the case such as the present was aptly described by Burchett J in Baxter Healthcare v Collector-General of Customs (1997) 72 FCR 467 at 469: "This case very well illustrates a point made in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287, and recently reiterated by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. The point is that judicial review of decisions of the Administrative Appeals Tribunal is not concerned with technical legal niceties, looseness of language, or infelicities of expression, but with whether a decision is infected in substance by some error of law. To my mind, the primary argument in the present appeal turns on whether the Tribunal in reality mistook its legal task, or whether it merely strayed into a measure of obscurity in the statement of its reasons, the actual meaning of which can nevertheless be ascertained by some perseverance, and being ascertained, reveals no error." 32 Although I would not describe the AAT's reasons as having "strayed into a measure of obscurity" the AAT did seek to provide examples of "inability" which might reveal error in its approach. Accordingly, it is appropriate to ascertain whether its decision was infected in substance by some error of law. 33 In my view, the reasons for the decision of the AAT when read as a whole reveal that the conclusion reached by it, although not expressed in these terms, was that the appellant was inhibited from seeking, rather than unable to seek, appropriate clinical management for her varicose veins. The AAT referred to the culture in the appellant's workplace, which plainly sought to deter the appellant and other persons in her position from obtaining clinical management for any condition that was not thought to be serious at the time. However, the AAT also referred to three other factors which suggested that, notwithstanding that culture, it was open to the appellant to obtain appropriate clinical management but she elected not to do so. 34 The first factor was the appellant's complimentary reference to Colonel Wonderley; the AAT viewed him as a person to whom the appellant could refer on the basis that if she needed treatment from him he would have treated her with the respect that would have been expected as between doctor and patient or between work colleagues (para 39). The second factor was the statement that the appellant readily acknowledged that "she chose not to seek treatment and did decide not to report her leg pains" (para 42). The third factor was the statement by the AAT that it could think of "no reason why the applicant in the presence of leg pain could not have approached a medical practitioner elsewhere" (para 43). Whilst it is correct to say that that issue was not raised directly with the appellant in the course of her evidence in my view it is a matter to which the AAT was entitled to have regard. The general availability of appropriate treatment was raised by the evidence of Dr Myers, who was called by the appellant. He said that, at the time, treatment was readily available for varicose veins in the form of surgery, injections and support stockings. 35 The AAT was obliged to arrive at the correct decision on the basis on the whole of the material before it. In my view in the present case it did so without unfairness to the appellant. The fact that the issue of "inability" appears to have been contested by the appellant by reference to her alleged inability to obtain appropriate clinical management for varicose veins at the hospital where she worked, does not require the AAT to confine its analysis of "inability" to treatment at those premises. Plainly, cl 1(e) refers to inability in general terms. 36 The evidence volunteered by the appellant did not put forward any reason why she could not have approached a medical practitioner elsewhere if she was of the view that the pain suffered by her was sufficient to warrant her doing so. One explanation for the appellant not seeking treatment at the time appears from her last answer in examination in chief: "If you had known at the time that in fact you were suffering from varicose veins and that they would give you so much trouble in later life, would you have reported them?---Yes." 37 Accordingly, it was open to the AAT on the material before it to have regard to the availability of appropriate clinical management outside of the appellant's workplace. 38 The AAT formed a view on the material before it that the circumstances were not such, whether approached objectively or subjectively, as to constitute an inability to obtain appropriate clinical management for varicose veins within the meaning of cl 1(e). I am satisfied that that was a conclusion that was reasonably open to the AAT on the whole of the material before it. When its reasons for arriving at that conclusion are read as a whole I am not persuaded that it erred in law in construing or applying cl 1(e) in reaching its conclusion. 39 A number of other grounds were argued on behalf of the appellant before Sundberg J and also on the appeal. In my view those grounds were correctly rejected by Sundberg J for the reasons set out by his Honour. I cannot usefully add to his Honour's reasons in that regard. Conclusion 40 Accordingly, for the above reasons in my view the appellant has failed to demonstrate that the learned primary Judge or the AAT erred in law in concluding that on the whole of the material before the AAT the appellant was not entitled to a pension under the Act in respect of the varicose veins from which she suffered during her eligible war service. 41 The appellant also contended that his Honour erred in concluding that costs ought to follow the event. In my view there were no special circumstances before his Honour, or on the appeal, that would warrant the Court from departing from the usual course that costs follow the event. In these circumstances the appeal is to be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

MANSFIELD J: 42 I have read the reasons for judgment of Merkel J. I agree with his Honour's reasons, and do not think that I can usefully add to them. In my view, the appeal should be dismissed with costs. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 10 September 1999 Counsel for the Appellant: Mr D De Marchi

Solicitor for the Appellant: De Marchi & Associates

Solicitor for the Respondent: Australian Government Solicitor