Bushell v Repatriation Commission

The Deputy President went on to say: "On the history taken by Dr Pain, asthma developed in the 1960's and in his opinion the time interval, between periods of irritation and the onset of clinical asthma is too remote to be causally linked. In his view occupational exposure to epoxy glue fumes at the government aircraft factory [where Mr Noble worked in the 1960's] is a well recognised inducer of bronchial asthma. It is also well recognised, he said, that the treatment of hypertension with a Beta blocking agent such as Visken which appeared to have been prescribed for the first time in October 1979 would aggravate the asthmatic state. Before this Tribunal the hypothesis advanced on behalf of the veteran was that treatment for hypertension with a Beta-blocking agent (Visken) aggravated the development of asthma. Consequently the claim for bronchial asthma is dependent upon the outcome of the claim for hypertension." (b) The hypertension claim After considering some of the medical evidence, the Deputy President said: "I have little difficulty in concluding that the veteran was exposed to stressful events during service. There is some evidence (Dr Parkin) that, at most he suffered mild anxiety but the evidence does not indicate that a psychiatric or psychological disorder existed, sufficient to be related to the development of a hypertensive state. Blood pressure on enlistment and on discharge was normal." Having discussed some other aspects of the medical evidence, the Tribunal continued: "Clearly the veteran has suffered from hypertension in the past with variable blood pressure requiring treatment. On the most favourable view it is minimal at the present time and it does not require treatment. This has been the position since 1985. As a general proposition it is generally accepted in the medical fraternity that stress is a factor in the development of hypertension. Whether the development of hypertension in the veteran's case is linked to stress on service is another question. In my opinion the facts point inevitably to the conclusion that hypertension developed in the mid 1970's about the time the veteran was under considerable workplace stress as mentioned earlier in these reasons. For a reasonable hypothesis to be raised in the sense referred to in the cases, it must be pointed to by the facts. Here there is an absence of facts to support the hypothesis connecting hypertension with the veteran's service. Having regard to the whole of the material I am satisfied beyond reasonable doubt that there is no sufficient ground for a finding that a reasonable hypothesis is raised connecting hypertension with war service." The Deputy President went on to say that it "necessarily" followed that "the hypothesis connecting bronchial asthma with war service via treatment of hypertension with Visken also fails the statutory test". THE REASONING OF THE PRIMARY JUDGE After discussing the familiar authorities in this area, the learned primary Judge said: "In the present case, it appears that the Tribunal did not identify clearly the hypothesis relied upon by Mr Noble to establish the causation between his eligible war service and his diseases. However, it appears that with respect to the migraine, the Tribunal was not satisfied, upon the whole of the material before it, of any reasonable hypothesis connecting Mr Noble's migraine with his eligible war service. The Tribunal appears to have come to the same conclusion with respect to the hypertension, but here, unfortunately, the reference to 'beyond reasonable doubt' does give rise to some uncertainty." His Honour went on to say: "The reasons for decision illustrate the methodology adopted by the Tribunal. It appears to be correct. In some places the modes of expression used could have been chosen more carefully. The reasons introduced the matter and set out the war service of Mr Noble. Then they recite: 'The Tribunal is required to make a finding that the veteran's claimed disabilities are war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal shall be so satisfied if the material before it does not raise a reasonable hypothesis connecting the veteran's disabilities with the circumstances of his war service.' This statement is correct insofar as it goes. It appears to roll up in one step the two step process so clearly stated in .... Byrnes. In substance, although not clearly expressed, the Tribunal appears to be saying that the Tribunal, as the first step, must consider subsection 120(3) of the Act and to ask 'do all or some of the facts raised by the material before the Commission (Tribunal) give rise to a reasonable hypothesis connecting the veteran's injury (or disease) with war service?' If the answer to that question is in the negative, the Commonwealth is not liable to pay the veteran a pension. If the answer to that question is in the affirmative the Tribunal is required to consider the application of subsection 120(1)." The primary Judge then said: "It is unfortunate that subsections 120(1) and (3) were not set out. Where that is done the difference between them becomes clear. The [Tribunal's] reasons then make reference to a number of authorities including Bushell and Byrnes. Reference is made to East v Repatriation Commission (1987) 16 FCR 517 and the passage at 532-533 discussing the meaning of the term 'reasonable hypothesis'. The Tribunal then said: 'Subsection 120(3) as was pointed out in Bushell is not concerned with choosing between competing hypotheses or determining whether one medical or scientific opinion is to be preferred to another but with whether from the whole of the material before the decision maker there is a reasonable hypothesis that the circumstances of the veteran's operational service are connected with his claimed disabilities. The question for the Tribunal applying sub-s. 120(3) is whether the material before the Tribunal raises a reasonable hypothesis in the sense discussed in the passages referred to in East.' The last sentence illustrates that the Tribunal, quite correctly, was considering the application of subsection 120(3)." After considering some aspects of the evidence before the Tribunal, his Honour said: "The Tribunal was considering whether all the material before the Tribunal pointed to a reasonable hypothesis establishing a connection between Mr Noble's eligible war service and his hypertension. The hypothesis propounded depended upon the time between the stress occurring and the onset of the hypertension. The passage just quoted relates to whether an hypothesis which does not take into account that lapse of time can be said to be reasonable. This is made clear by the reference to the fact that the hypertension developed in the mid 1970's some 30 years after Mr Noble was discharged from the Navy. This is clarified by the next paragraph:- 'For a reasonable hypothesis to be raised in the sense referred to in the cases, it must be pointed to by the facts. Here there is an absence of facts to support the hypothesis connecting hypertension with the veteran's service. Having regard to the whole of the material I am satisfied beyond reasonable doubt that there is no sufficient ground for a finding that a reasonable hypothesis is raised connecting hypertension with war service.' His Honour continued: "Possibly, if the Tribunal had not included the last paragraph, this appeal would not have been brought. That paragraph appears to combine part of the wording of subsection 120(1) with part of subsection 120(3). It would have been preferable to have said that after the consideration of the whole of the material before it, the Tribunal is of the opinion that that material does not raise a reasonable hypothesis connecting the hypertension of Mr Noble with the circumstances of the particular service rendered by him (subsection 120(3)). Therefore in applying subsection 120(1) the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making the determination sought by Mr Noble under Part II of the Act. This long formulation does not need to be included in every case but it does illustrate the methodology that should be used. In the present appeal, the Tribunal, in the last paragraph, appears to have summarised the effect of the application of the two subsections 120(1) and (3) and in so doing has to some extent misstated the legal position. No question of onus of proof arises in forming an opinion on whether the facts point to a reasonable hypothesis. If the tribunal had said that none of the material before it gave rise to a reasonable hypothesis connecting Mr Noble's hypertension with his war service, there could have been no objection taken. In my opinion, this conclusion is implicit in what he did say."

THE GROUNDS OF THE PRESENT APPEAL Mr Noble's grounds of appeal are as follows: · Both the Tribunal and the primary Judge failed to appreciate the "dominance" of s 120(1) in the legislative scheme; and both (incorrectly) "adopted a view of exclusivity" in the operation of s 120(3). · The Tribunal also "conflated" the two-phase approach required by Byrnes. · Instead of examining whether the raised facts supported a reasonable hypothesis, as contemplated by s 120(3), the Tribunal found that there was an absence of facts to support the hypothesis, a role properly to be undertaken pursuant to s 120(1). · In the result, in "not fully understanding its task", the Tribunal "failed to understand the full breadth of the hypothesis linking the conditions of service with stress and hypertension". Reference was made to evidence before the Tribunal of gas training undertaken by Mr Noble in Scotland and to breathing difficulties experienced by him on HMAS Shropshire, during action stations in the tropics when the ship was closed up and the ventilation shut down. CONCLUSIONS ON THE APPEAL We agree with the learned primary Judge that the appeal from the Tribunal's decision ought to have been dismissed, for the reasons given by his Honour. That is to say, we agree that the Tribunal appears to have taken an approach to its task that was more direct than may, in strictness, have been necessary, but that it did not follow, for present purposes, that any appellable error was involved. As his Honour observed, if there had been any error of law in the Tribunal adopting that course, it must have favoured Mr Noble. Observations made by Toohey J in Bushell v Repatriation Commission (1992) 175 CLR 408 (at 438-9) are, we think, in point in this connection. Toohey J said: "While sub-s. (3) is epexegetical of sub-s. (1), it is not exhaustively so. If the Commission is of the opinion that the material does raise a reasonable hypothesis, it may nevertheless refuse a pension if it is satisfied that there is no sufficient ground for making a favourable determination. Even though sub-s. (3) itself has not led to a rejection of a claim, the claim may be dismissed if, in the words of Davies J. in the present case, 'the decision-maker is satisfied beyond reasonable doubt on all the evidence that any necessary element of fact did not exist, or that the theory was, in the circumstances of the case completely untenable'. It may be, for instance, that the Commission is satisfied beyond reasonable doubt that, on the facts, an applicant did not come by the injury or the disease in the manner claimed. The claim will then be dismissed. ..." It appears that this was the way in which the Tribunal entered upon the resolution of the task entrusted to it. Essentially this task involved the determination of a question of fact (cf. Repatriation Commission v Owens (1996) 70 ALJR 904); but it did not raise any question of law, upon which this Court's jurisdiction under s 44 depends. From a reading of the Tribunal's reasons as a whole, it appears that, on the material before it, the Tribunal was: · satisfied that there was an absence of facts connecting the appellant's war service with the disabilities claimed to have been suffered by him; · satisfied beyond reasonable doubt that that material did not raise a reasonable hypothesis connecting those disabilities with war service. In order to understand how the Tribunal approached its task, it is necessary to say something about the way in which Mr Noble's case was presented to it. In the course of his examination in chief, Mr Noble gave the following evidence about the gas training in Scotland: "MR DE MARCHI: All right. Well, in the North Atlantic, what did you have to do there? A While I was on Shropshire we operated out of Scapa Flow, which was in Scotland, and while we operated there I went through a damage control course which consisted of all fire drill and escapes and repair ships and also through the anti gas school which covered anything from gas, and that covered operations under smoke and that sort of thing, because what they called in those days - a breathing apparatus in those days was a salver set which was used on submarines. Q. Right, and how long did you undergo that training for? A That was approximately two weeks - a week in each - and then we went back onto Shropshire. Q And what did that training involve? Were you locked in a sort of a simulated hull? A In a simulated building they had there which they filled - with the gas school they filled with various types of gas so as we could know the type of things; and the fire school we went through was various types of doors and operations and water and different types of hoses for certain types of firing, whether it's oil or water or electric type of thing. Q When you did your gas training were you issued with a gasmask? A Yes, when we went to London we took our gasmasks with us. Q Yes, and were you wearing the gasmask inside the hull, were you, when you were doing the damage control training? A Yes, but then we had to take it off so as we could smell what type of things, what type of gas it was we had. Q Right, I see. That was part of the training? A Part of the training, yes, so as we could distinguish when it was in the air, type of thing. Q I see. Well, did that have any effect on you at all? A Did at the time. I don't know what effect later it had but it didn't taste too good at the time." Later Mr Noble was asked by his counsel about smoking. Mr Noble then gave this evidence about lack of ventilation on HMAS Shropshire:

"Q Now... you had some problems breathing? A Yes. Q When did that first come on in? A That - we had difficulty when we - when the ships were always closed, everybody had this sort of problem. When the ship was closed up, tropics, you had 130, 140 degree heat and with the movement of the ships, when they were - at a sign of enemy aircraft, really, that sort of thing, the ship was always closed. We had a captain that had an inkling if anything happened he would close the ship up for action stations immediately. You might be there an hour, you might be there five or six hours. Q What does that mean, that you lock all the---? A Lock all the doors, watertight doors, certain ventilation is shut down and that, except for the ventilation for the engine rooms, they had to have a certain--- Q Now, and you mention that you had difficulties breathing during these periods of times? A That's right, yes. Q Well---? A Because you had a certain amount, what shall I say, you had a lot of pipes and this sort of thing and there was no covering in the decking, nothing was closed in that would stop the dust from pipes and steam pipes used to vibrate and they'd rattle dust or paint, paint used to come off because after a time it flaked and then when it was fine, you know, it'd come off the ships. Q How many times during your stay on the Shropshire, those 18 months, would you say that you had difficulties in breathing? A On, once a week sometimes, once a fortnight. It all depends on what we were doing. Q And when you came out of the navy did you experience difficulties breathing then? A Particularly when I got into the warmer weather, summertime sort of thing, dust." Mr Noble went on to give the following evidence about his hay fever and his asthma: "THE D. PRESIDENT: Suffered from hay fever, did you? A Yes. I've still got to watch it. If it's a dusty day or those sort of things you've got to be a bit more careful these days than I was. Q So is it in the spring weather it is troublesome, is it? A I had - last Friday the weather went off a bit and I had a bad day last Friday. I had to get on to my Ventolin, my Becotide, my CNU. I watch my medicine regularly to sort of balance my system. MR DE MARCHI: When were you first diagnosed as having asthma? A Well, about 10 or 15 years after I come out - 10 years or so after I come out of the navy, I suppose. I think hay fever's probably a - asthma's probably a continuation of that type of thing. It's a similar sort of problem. Q Yes. But my question was specific though, the diagnosis of asthma. I mean, you had symptoms right from the time---? A Yes. Q --- you came out, as you said, but from what you - the way you explained it it appears that some of them were sort of related to hay fever as well? A Could be, it's asthma sort of thing. I wouldn't know without - probably 10 years after I come out of the navy, I suppose, it was, that type--- Q All right? A Around about that particular time. I'm only going by memory. Q 10 or 15 years you think after you got out? A Yes, yes. That it was more chronic type of thing."

During his examination in chief by counsel for Mr Noble, Dr Pain said: Q Now, that brings us on to your second report of 20 October 1995. You say there that you believe that it is likely that the beta blocking agent, Visken, played a major role in the development of bronchial asthma? A Correct. Q You - is that an opinion fairly held by you? A Yes, it is an opinion fairly held by most thoracic physicians that beta blockers are contrary indicated in patients that have established asthma and there's a fair incidence of them actually inducing asthma. In fact, the specific prescriber information says they are contrary indicated in those two groups of people, people with a pre-disposition and those with active asthma. I spend a lot of my time taking people off beta blockers. Q Given the history that you have taken in this particular case, Dr Pain, and given the diagnosis that you have made, is it your opinion that more likely than not the asthma was caused by the beta blockers? A I think the beta blocker was a major factor. There may have been other factors as well. Q Yes? A I noted that the occupation he was at - working at the time would expose him to some factors which could be asthmagenic, but I certainly think beta blockers - a beta blocking agent is most likely to have been a major factor. THE D. PRESIDENT:So you - as an agent you discount the exposure during wartime because of the time interval, basically? A If it played a part it would be a very minor part, I think. Mainly because of the - for that long time interval." Dr Pain went on to give the following evidence: "MR DE MARCHI: On that particular point, doctor, can you rule out beyond any reasonable doubt that it did not play any part? A There is a lot about asthma we do not know and I think it probably is a multi-factorial condition. I can't rule it out entirely and give you a guarantee that those circumstances played no part whatever. In my experience it would be very unusual to be able to attribute factors like that to the onset of asthma 25 years later. Q If we, perhaps to complete the picture and give you the full history, if we add to that period of approximately 18 months on the HMAS Shropshire during trials and action, an earlier period of gas training, where the veteran would have been exposed to unknown agents but during evacuation drill, mock-ups of ships would be filled with water and various gases would be released and although they had gas masks, they would be asked to take them off and get a feeling of what the gases smelt like, were those factors - could they possibly be a causative agent? A The factors you've described would certainly be adverse for someone with established asthma. If they were factors that were important in the onset of asthma, I would expect the symptoms to have developed very close to the exposure. THE D. PRESIDENT: This is for a two-week period, I might add, that he is exposed to these. Only back in 19 - when he is what, 19 years of age, I think? A I really think its a very remote incident. MR DE MARCHI: If we accept the veteran's evidence that once a week, once a fortnight, when he got out of the navy, immediately after he got out, he would have difficulty in breathing. Could that be - there is an indication that he is - he was prone at that stage to hay fever and certainly when he moved to Daylesford between October and January he would have trouble with hay fever, but given the difficulty in breathing but he also - perhaps I had better also tell you, Doctor, that he felt difficulty in breathing on ship, when the ship was closed down and it was in action station. And that occurred once a fortnight or so - I beg your pardon, I think I'm getting mixed up here. THE D. PRESIDENT:Yes. I think - his evidence was that during the period he was on Shropshire that when the ship was closed down for various periods, that he - weekly or fortnightly, he might have experienced some difficulty in breathing. And that is when all the ventilation systems excepting the engine room, as I understood, were closed down? A I tried to push Mr Noble very hard to tell me about breathlessness in relation to his war service and shortly afterwards, because it clearly was a key question in my mind as to the linkage, and he simply couldn't tell me anything about disorders of breathing until some time in the 1960s. He couldn't give me any pinpointed date. He didn't mention anything about breathlessness on board ship or in relation to anything. If, however, that is true, then I suspect it is possible to say that those circumstances added in an accumulative way, to the development of his asthma. But the history I got was not that. MR DE MARCHI: But even so, you say that the major factor would have been in making the condition florid would have been the Visken? A I think that is undoubtedly true." (Emphasis added). The examination in chief concluded at that point. In Bushell, above, Brennan J said (at 424-5): "Section 120 governed the review by the A.A.T. of the decision of the Board on Mr. Bushell's claim. This section is not concerned with an onus of proof. Sub-section (6) says so expressly. It is concerned with a standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts, and it directs the decision-maker to act on the material before the Commission, the Board or the A.A.T., as the case may be. Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. Nor does s. 120 create any presumption which has to be dispelled by the material before the decision-maker." In the present case there was before the Tribunal a great deal of material. The reality is that, in the light of the evidence, especially that cited above, Mr Noble's case before the Tribunal sought to place reliance upon the role of Visken. This was understandable in the light of the medical evidence of Dr Pain that the appellant's asthma developed in the 1960's and that in his opinion the onset of clinical asthma at that time was too remote to be causally linked to the appellant's war service. In the hearing before the Tribunal, no real reliance was place upon the Scapa Flow training exercise or the absence of ventilation of HMAS Shropshire during action. In arriving at its decision on this issue the Tribunal was entitled to be guided by the issues that the parties choose to put before it for its consideration: see Sullivan v Department of Transport (1978) 20 ALR 323 at 342, Repatriation Commission v Hughes (1991) 23 ALD 270 at 274 and Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 487-489. As the arbiter of fact it was open to the Tribunal having regard to the case put to conclude, after consideration of the whole of the material before it and in particular the significance attached by Dr Pain to the lapse of time between war service and the onset of the bronchial asthma, that the material does not raises a reasonable hypothesis connecting the asthma with war service. Accordingly, no error on the part of the Tribunal in this respect can be demonstrated. Criticism has also been made of the Tribunal's treatment of some of the psychiatric evidence. As has been seen, the Tribunal said that Mr Noble had been "exposed to stressful events during service" and that "[t]here is some evidence [from Dr Parkin] that, at most he suffered mild anxiety..." However, it will be recalled that the Tribunal added that: "...but the evidence does not indicate that a psychiatric or psychological disorder existed, sufficient to be related to the development of a hypertensive state. Blood pressure on enlistment and discharge was normal." In his written submissions, counsel for Mr Noble contended for the following: "6. The result of not fully understanding its task was that the Tribunal failed to understand the full breadth of the hypothesis linking the conditions of service with stress and hypertension. 6.1 [The Tribunal] [h]aving found that stress was a factor in the development of hypertension, and that Dr Parkin found that the veteran suffered from mild anxiety, all this material pointed to an anxiety condition associated with service, and leading, according to established medical evidence, to hypertension. The hypothesis did not depend upon the time of onset of hypertension, but whether on the basis of a reasonable hypothesis that hypertension could be said to be service-related. Neither of these matters were examined by the Tribunal in its fact-finding task pursuant to S.120(3). 6.2 A failure to examine all of the material is a fundamental error in the assessment pursuant to S.120(3). 7. Similarly, the Tribunal and his Honour failed to consider the relationship of the factors of service, and the subsequent development of bronchial asthma. 7.1 The Tribunal focused on whether the bronchial asthma was related to the treatment of hypertension, and once that relationship failed, concluded that the condition was not service-related before examining the other factors; gas training on service, smoking on service and Dr Pain's evidence that he had discounted the hypothesis because of his understanding of the lack of symptoms on service or soon after discharge. 7.2 But the Tribunal had accepted this evidence. AB460. 7.3 Having found these factors to exist, the Tribunal appeared to have overlooked the evidence of the Appellant's exposure to gas training at Scapa Flow and his smoking period related to Navy service. The Appellant also smoked 1-2 packets of cigarettes following discharge for approximately 8-9 years. 7.4 In his evidence, Dr Pain believed that if all the material accepted by the AAT was true then it was possible to say that those circumstances add in a cumulative way to the development of his asthma. 'But the history I got was not that'. The AAT failed to comment on this, and if the evidence of the appellant was to be rejected, it ought to have been rejected pursuant to S.120(1). 8. The Tribunal and his Honour erred in requiring the hypothesis be raised by the Appellant." As has been seen, in par 7.2 above, reference is made to Appeal Book p.460. This appears to be a reference to the following part of the Tribunal's reasons:

"EVIDENCE The veteran gave evidence of experiencing breathing difficulties in the tropical heat during periods of service in HMAS Shropshire when the ship was closed for action stations and ventilation except to engine rooms was shut down. When the guns were fired causing the ship to vibrate, dust from the asbestos lagging on the pipes was a problem. Breathing difficulties occurred about once a fortnight depending on activity. From time to time he also experienced headaches. When he was discharged from service his nerves were 'not the best'." We cannot accept that the Tribunal failed to understand the nature of the hypothesis contended for on behalf of Mr Noble. It is true that the Tribunal did not feel it necessary to accept that there was a relevant link with Scapa Flow, the lack of ventilation of HMAS Shropshire, or with smoking. It is also true that each of these matters was mentioned during the evidence. However, as has been said, no real reliance was placed upon them. The Tribunal was entitled, after considering the whole of the material before it, not to accept the hypothesis now contended for in the light of the material it regarded as appropriate to rely and act upon. Moreover, on the question of the nature of the hypothesis contemplated by s 120(3), it should be noted that, in its reasons, the Tribunal cited the following observations, quoted with approval by the Full Federal Court in East v Repatriation Commission (1987) 16 FCR 517 (at 532-3): "The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a[t] least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.' The critical distinction between material which, on the one hand, "points to" a hypothesis, and that which merely "leave[s] [it] open" is apposite in the present context. The appeal will be dismissed, with costs. I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Court

Solicitor for the Appellant: De Marchi & Associates

Solicitor for the Respondent: Australian Government Solicitor