Forbes v Repatriation Commission

Statutory provision 12 The special rate of a pension is provided for in s 24 of the Act. This section may be understood in the following way. 13 It commences with the following provisions which are preliminary and which are not in issue on this application because the applicant's circumstances satisfy them: "24 Special rate of pension (1) This section applies to a veteran if: (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (aab)the veteran had not yet turned 65 when the claim or application was made; and (a) either; (i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

Then follows s 24(1)(b) which reads: "(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and …"

14 That in turn is followed by the provisions of s 24(1)(c). That paragraph is best understood by dividing it into its two limbs and relating those limbs to the relevant portions of what follows in s 24(2). 15 The first limb of s 24(1)(c) reads: "(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking…" (d) …" That limb must be read subject to the application of s 24(2)(b) which reads: "(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking." The second limb of s 24(1)(c) reads: "(c) … is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and" This is to be read in conjunction with s 24(2)(a) which provides: (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and … ." 16 There is a further requirement in s 24(1)(d) that s 25 does not apply to the veteran and it is common ground that is the case in this application.

Tribunal's reasons 17 In its reasons the Tribunal referred to the circumstances of the applicant, largely as set out above. It then referred to the relevant law and proceeded to make its own findings. 18 It is common ground on this appeal that the Tribunal was required to determine the issue of the applicant's entitlement to the special rate during the "assessment period" as defined by s 19(9) of the Act. That period starts on the application day (in this case in October 1997) and ending when the claim for application is determined: s 19(5) of the Act. The relevant time is not when the veteran originally ceased to work. 19 The first significant finding of the Tribunal was as follows: "13. The Tribunal is satisfied that the lumbar spondylosis is a serious condition and that it is of such a nature that, on its own, it renders the applicant incapable of undertaking remunerative work for periods aggregating more than eight hours per week. As such, the applicant satisfied the criteria set out in s.24(1) (a) and (b). …" 20 The Tribunal then considered the fact that the applicant had a non war-caused condition of thoracic spondylosis. In par 15 it found as follows in relation to this condition: "The neck pain/aggravation made it difficult and painful for him to read for long periods in a sitting position, to work at a computer and affected his capacity to drive motor vehicles. After hearing the applicant's evidence, it was accepted that this thoracic spondylosis, alone, did not stop the applicant from undertaking work." 21 The Tribunal then found as follows: "The Tribunal finds that the reason the applicant is prevented from continuing in his previous remunerative employment as transport company manager/driver is a combination of his lumbar and thoracic neck spinal conditions, and not lumbar spondylosis alone. For this reason, the applicant does not satisfy the "alone" test set down in s.24(1)c)." 22 Next the Tribunal turned to the application of s 24(2)(b). It concluded the applicant was not genuinely seeking work as he had rejected an offer of part-time work on the basis he would not be paid in cash. Consequently the ameliorating provisions in that paragraph could not be applied in his favour. There is no challenge to that finding on this appeal.

Grounds of appeal 23 The essential ground of appeal is that the Tribunal erred in law when it determined that the applicant did not satisfy the "alone" test set down in s 24(1)(c). Specifically it is contended in the way in which the ground was argued the error of law occurred because the Tribunal applied s 24(1)(c) so as to consider a combination of the war-caused condition and the non war-caused condition. It is contended that the proper understanding of the paragraph is that non war-caused conditions cannot be taken into account in the application of the paragraph unless by themselves they are capable of preventing the veteran from continuing to undertake the remunerative work that the veteran was undertaking. Requirements of paragraph 24 The requirements of s 24(1)(c) of the Act have been considered by the Full Court in Flentjar v Repatriation Commission (1998) 48 ALD 1 at 4‑5. There, Branson J, with whom Beaumont and Merkel JJ agreed, said: "In my view the issues before the tribunal in this case were as follows: 1. What was the relevant 'remunerative work that the veteran was undertaking' within the meaning of s24(1)(c) of the Act? 2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? 3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? 4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? 25 That statement was made in the context where the issue before the parties was limited to the question of whether Mr Flentjar satisfied s 24(1)(c): see Flentjar at 3. It was common argument on this 'appeal' that the four factors set out by her Honour identified the requirements for application of the paragraph. 26 In relation to point one, it was not in dispute here that the reasons of the Tribunal had identified the relevant "remunerative work that the veteran was undertaking" as "transport company manager/driver". It was common ground that the reference in s 24(1)(c) to such work was a reference to the type of work in which the applicant had engaged and not to his last form of employment or to a particular job with a particular employer: Banovich v Repatriation Commission (1986) 69 ALR 395; Starcevich v Repatriation Commission (1987) 18 FCR 221. 27 In relation to the second identified element, it was common ground here that the statement by the Tribunal in par 13 was in express terms limited to s 24(1)(b). However, it was also common ground that by implication viewed in the context of the whole of the reasons the Tribunal had made the requisite finding for the purposes of s 24(1)(c). 28 In relation to the third identified factor, the reasoning of the Tribunal at par 17 read in conjunction with its reasons at par 15 occasioned it to answer "no" to that question. It is this step which the case for the applicant contends involved an error of law. 29 As to the fourth identified factor, it has already been stated that the conclusions of the Tribunal here are not under challenge. 30 In support of the appeal, reference is made to a number of prior decisions in which it is said that the view contended for on behalf of the applicant receives support. That view is that non war-caused conditions cannot be combined with war-caused conditions in applying s 24(1)(c) unless each such conditions are themselves alone preventative of the veteran undertaking remunerative work. The first is the statement in Banovich at 404 where it is said "the tribunal found that the cause of his retirement from the employ of the State Rail Authority was in the injury to his hip occasioned by the fall at work". The Full Court there said that that injury which had not been accepted as a war-related incapacity, "thereafter would, in any event, have prevented Mr Banovich from continuing to undertake the remunerative work which he had previously undertaken". I do not read this passage as supporting the proposition that regard cannot be had in the application of s 24(1)(c) to non war-related incapacities. 31 In Repatriation Commission v Smith (1987) 15 FCR 327 at 337 it was said: "As has been said, the question posed by s 24(1)(c) is one of hypothetical facts. The Tribunal must attempt an assessment of what the respondent probably would have done if he had none of his service disabilities". I accept the submission for the respondent that this is dicta relevant to the application of the second limb of the paragraph and to question four in the identified elements listed by the Full Court in Flentjar. That is not an issue on this appeal. 32 In Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 Burchett J agreed with Davies J in Re Easton and Repatriation Commission (1987) 6 AAR 558 at 570-571 the word "alone" should not have substituted for it other words in the absence of ambiguity. He saw the requirement of the word "alone" as it appears in s 24(1)(c) as requiring a practical decision whether the veteran's loss of remunerative work is attributable to his or her service-related incapacities, and not to something else as well. He regarded that as a decision not to be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide. 33 Burchett J also referred to a statement by the Tribunal in Cavell that it followed from the use of the word "alone" in s 24, that any factor having employment consequences which played a part in the applicant's inability to work or to obtain and hold remunerative employment, is sufficient to displace the applicant's case for pension at the special rate. Burchett J regarded that statement as revealing clearly an application of the statutory test in an unexceptional manner to the material in evidence before that Tribunal. Those remarks address the third question identified in Flentjar and are, correctly in my view, relied upon for the respondent in this application. They do not provide support to the applicant's contentions. Nor do I consider that reference to Repatriation Commission v Strickland (1990) 22 ALD 10 at 18 assists the applicant's case. 34 Some support may be found for the applicant's contention in Moorcroft v Repatriation Commission [1999] FCA 862, a decision of a single judge. Referring to par 24(1)(c) Dowsett J said at pars 19-21: "There are two possible interpretations of the words: 'the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work at that the veteran was undertaking…' They are:- (a) that these words look to the extent of the war-caused condition to ascertain whether it is actually preventing the veteran from working in his previous employment; or (b) that they are designed to exclude a claim where, notwithstanding such a condition, other factors (including other medical conditions) prevent such employment. … A powerful criticism of the second interpretation is that it would leave little or no room for the operation of s 24(2)(a). For that reason, I am inclined to the view that s 24(2) is intended to deal with what might be called "supervening causes", by which expression I mean factors preventing the veteran from working, other than his war-caused condition, and that s 24(1)(c) is not concerned with those matters. …" However this obiter dicta makes no reference to the Full Court decision in Flentjar nor, in my view, to the other authorities to which I have referred and will refer. 35 In Jackman v Repatriation Commission (Tamberlin J, Federal Court of Australia, 30 June 1997, unreported) it was accepted by the Court that the approach of Burchett J in Cavell was the correct one. Consequently, it was appropriate for the approach of the Tribunal to be guided by common sense with an eye to reality. 36 In Turnbull v Repatriation Commission (Merkel J, Federal Court of Australia, 21 May 1997, unreported), Merkel J noted that the Tribunal had found that the pain and disability in the applicant's shoulders and wrists played a part in preventing the applicant from engaging in remunerative work; that pain and disability did not result from a war-caused injury; and that although the applicant's war-caused injuries had a more substantial effect than the non war-caused injuries in preventing the applicant from engaging in remunerative work, both contributed to his loss of earnings. The Court found such findings were open on the evidence and, as a matter of law, warranted the refusal of the application under s 24(1)(c) of the Act. 37 The nub of the argument for the applicant is that where the Tribunal has made a finding of the character which the Tribunal here made in par 13, the threshold is crossed for the purposes of s 24(1)(c) and it does not matter that there may be other non war-caused conditions in respect of the veteran. I accept the submission for the respondent that this seeks to add a gloss to question three identified by the Full Court in Flentjar. In my view, it is not a gloss supported by either that authority or other authorities or, by a plain reading of the language in the first limb of s 24(1)(c). 38 In further support of the applicant's case, it is submitted that there are three possible conceptual environments in which that limb may call for application. The first is that the only injury or disease is war-caused and does have the effect of preventing the veteran from continuing to undertake remunerative work that the veteran was undertaking. The second is where there are two independent conditions, one war-caused and one non war-caused. The third is whether neither a war-caused nor non war-caused condition is sufficient to create the preventative effect but there is a question whether the two together have such preventative effect. It is the second conceptual environment which is in issue here. 39 The applicant's case requires the Tribunal to not have regard to the non war-caused condition where there is a finding that it alone did not stop the applicant from undertaking work. In my view, that course is not open to the Tribunal in the light of the words used in the first limb of s 24(1)(c). The question whether the veteran by reason of the war-caused condition "alone" has been prevented from continuing to undertake remunerative work can only be answered by reference to all the circumstances in which the war-caused condition exists. The fact that a non war-caused condition is not alone causative of such preventative effect does not prevent it having that effect in combination with the war-caused condition. The possibility of combination is recognised in the third conceptual environment identified in the applicant's case. Furthermore it is consistent with the application by a Tribunal of a common sense approach "with an eye to reality". 40 As in the case of the present applicant, it is possible that the war-caused condition will be by far and away the more dominant of the causes of the preventative effect where there is also present a non war-caused condition having such effect in combination. The result is that the presence of the latter will deny to a veteran qualification for the special rate of pension. Parliament has sought to ameliorate this position by the provisions in s 24(2)(b), to which reference has been made. To date, the applicant has been unable to qualify pursuant to that provision. Whether he can qualify pursuant to that provision in the future remains a question for consideration. 41 For the applicant it was also submitted that the application of s 24(1)(c) comes down in the end to an issue of causation. It is said where there is a finding in terms of par 13 that should be considered as the causative factor, a non war-related condition cannot also be causative. In my view this submission overlooks the requirements of the wording of the first limb of the paragraph. Furthermore, the finding in relation to the thoracic spondylosis of the applicant was not that it was non causative but rather that "alone" it was not causative of the preventative effect. That finding in par 15 did not preclude the Tribunal from proceeding as required by s 24(1)(c) to consider with an eye to reality and common sense the combined effect of the war-caused and non war-caused conditions. That is a different question to whether the non war-caused condition "alone" was causative of the requisite preventative effect. Conclusion 42 For these reasons I consider that the application by way of appeal should be dismissed. 43 I certify that the preceding forty‑two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson J.

Dated: 24 March 2000 Counsel for the Applicant: Mr H Christie

Solicitor for the Respondent: Australian Government Solicitor