[1993] FCA 447; (1993) 123 ALR 719

Veterans' Affairs - entitlement of veteran to pension under PT II Veterans' Entitlements Act 1986 - whether veteran's nervous condition was a war-caused injury or disease - standard of proof to be applied: s.120 - conflicting medical opinion - whether Tribunal misconceived test to be applied under s.120(3)

Bushell v. The Repatriation Commission [1992] HCA 47; 175 CLR 408

Administrative Appeals Tribunal Act 1975 s.44(1),

Veterans' Entitlements Act 1986 ss.5, 9, 13, 19(7), 120(1),(3),(4)

Solicitors for the Applicant: Legal Aid Commission of New South Wales

Solicitors for the Respondent: Australian Government Solicitor

2. The applicant's application for reconsideration be remitted for

determination according to law.

3. The respondent pay the applicant's costs.

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

BEAZLEY J This is an appeal from the Administrative Appeals Tribunal pursuant to the provisions of s.44(1) of the Administrative Appeals Tribunal Act 1975, affirming a decision of the Veterans' Review Board dated 10 December 1990, which affirmed a decision of a delegate of the Repatriation Commission made on 18 April 1988, that the applicant's condition, claimed as nerves, was not an injury or disease as defined in s.5 of the Veterans' Entitlements Act 1986 (the Act).

2. The essential matter which arises for determination in this appeal is the standard of proof which must be applied in deciding whether or not the applicant was suffering from a nervous condition. The applicant contended that the standard to be applied was the reverse criminal standard under s.120(1) of the Act. The respondent contended that the issue was to be determined by applying the civil standard under s.120(4).

3. The applicant served in the Australian Army during World War II, from 1 October 1941 to 5 December 1945 as a Corporal in the Military Police. He was engaged in service outside Australia, being sent to Milne Bay in 1942, two to three days after it had been captured from the Japanese. He was also sent to Port Moresby, Buna and other parts of Papua New Guinea during the course of his overseas service. At no time did the applicant engage in any face to face combat. His duties included traffic control and guarding prisoners of war, although he was not directly involved in the capture of Japanese soldiers. His traffic and point duty on occasions required him to be in remote parts of the bush at night, often on his own for long periods of time. He gave evidence that he felt nervous and on edge during these remote postings not knowing if he was going to be "jumped by the enemy". He was never fired on by the enemy although he heard distant enemy fire. He experienced enemy bombing raids whilst at Milne Bay, Port Moresby and Pinch Haven. Some fellow soldiers were injured or killed during one of these raids, and he saw dead bodies, including those of persons with whom he had become friends.

4. The applicant was cross-examined intensively about his war experience. He was asked how many bombing raids he was subjected to whilst in New Guinea. The applicant replied "When we first ... went to Milne Bay, you would get one nearly every night and then when we moved from Milne Bay to Moresby, the same thing happened there. And then I went from Moresby ... to Finschhafen ... they were bombing there and dog fights during the day and what have you". He saw men killed in the bombing raids and he witnessed dead bodies. He was asked whether these were "particularly disfigured ...". The applicant answered "Yes, they were shot up with shrapnel pretty well". Four or five of the people he saw killed were "mates in the army".

5. The applicant gave evidence that for two to three years after his discharge in late 1945 he had some difficulties in adjusting to civilian life. However he obtained work and trained as a boilermaker, in which employment he remained until his retirement in 1987, when he was aged 67. During the whole of this time he "seemed to cope reasonably well ...". He had an excellent relationship with his employer, who did not want him to retire. He retired because his work, which involved high precision welding, became too much for him. He felt he could not cope, the high demands for accuracy in his work being one of the reasons for this. He said, however, that his nerves were not the problem with his coping with work.

6. In a statement dated 13 March 1990, the applicant said that his war experiences bothered him more now than ever, that he lay awake at night thinking about the war, feeling uncomfortable. He said that such experiences were becoming more frequent. He also suffered from nerves when faced with unusual circumstances such as to cause him to worry unnecessarily over small things. He gave an example of a recent change of residence about which he worried a great deal. The applicant gave evidence that he sometimes dreamt about the war. He said that some of these dreams were particularly distressing, they were about his war experiences and some of his mates. The dreams did not cause him to wake up at night however, "I just throw my arms around and what have you ..." and his wife would give him "a dig in the ribs" and he would wake up.

7. The applicant said that his nervousness commenced more than five years before his retirement. He said that he sometimes gets tearful and that he did not like driving in heavy traffic. He did not sleep well and woke up several times during the night. He said his nervousness was with him about 90% of the time. He said he got sore across the shoulders and the back of the neck. He tired easily and loud noises startled him.

8. The applicant was referred by his general practitioner to Dr. Lambeth, psychiatrist. The impetus for this referral came from a suggestion by the applicant's advocate. Dr. Lambeth thereafter became the applicant's treating doctor. Dr. Lambeth diagnosed a chronic post traumatic stress disorder consequent upon his war service. He said that delayed onset of this disorder was now well documented. The fact that he was anxious during his war service and showed some signs of what might then have been called a war neurosis immediately following his war service, established a link between his present condition and his war service. Further, Dr. Lambeth was of the opinion that his symptomatology established a specific link between his anxiety symptoms and his war service. Dr. Lambeth gave evidence that there was literature documenting people having a delayed onset post traumatic stress disorder as long as 30 years after the relevant trauma. He thought that perhaps the applicant did not have a delayed onset of the disorder as he believed that he had post traumatic stress disorder at the end of the war, but that he had covered it up or managed it. He considered that there were factors in the applicant's background, for example, his mother being blind and his father being an alcoholic which would have contributed to his anxiety in the sense of having made him a vulnerable person. This did not mean that he did not suffer from the stress disorder. Rather it made it more likely that he would suffer such a disorder.

9. Dr. Cull, psychiatrist, saw the applicant at the request of the respondent in February 1988. Dr. Cull was of the opinion that there was no evidence of psychiatric disorder or abnormal stress reaction. Dr. Robbie also saw the applicant at the request of the respondent. He agreed with Dr. Cull's conclusion. He did not consider that the applicant was suffering a post traumatic stress disorder nor did he connect any condition he might have now with his war service. Indeed he did not accept that a post traumatic stress disorder would develop some 20 to 30 years after the traumatising event. Indeed, he considered such a suggestion to be absurd. He stated that to produce post traumatic stress disorder it was necessary for a person to experience an "obscenely horrible event".

10. The Tribunal found, and there is no issue as to this, that the applicant is a veteran, whose eligible war service was classified as operational service. The applicant's entitlement to a pension arose, therefore, if at all, under Part II of the Act. The Tribunal held that the provisions of ss.120(1) and (3) of the Act applied to the determination of the applicant's claim. However, having reached that conclusion, it then referred to the conflicting medical evidence and found, on the balance of probabilities, that the applicant did not suffer from a recognisable psychiatric injury, ailment, disorder, defect or morbid condition, and in particular did not suffer from an anxiety state or from chronic or delayed post traumatic stress disorder. In this regard the Tribunal preferred the evidence of Drs. Cull and Robbie to that of Dr. Lambeth.

11. The Tribunal then stated that if the matter could be resolved by asking, on the balance of probabilities, whether the relevant morbid condition existed, its finding in relation to the medical evidence determined the matter. It stated however, that the proper approach may be "to ask whether the whole of the material raises a reasonable hypothesis connecting a veteran's injury or disease with his war service".

12. The Tribunal found that the applicant's war experiences were traumatic, that he adjusted to civilian life, held down a job and retired against the wishes of his employer at the age of 67, mainly because the precision welding had become too much for him. The Tribunal also found that "his nerves had 'come on in later years'" and were brought on now by incidents not to his liking. It was noted that he was still involved in activities connected with the war, such as Anzac Day ceremonies and the RSL, he got along with friends and neighbours and had felt no need of psychiatric help until he was referred to Dr. Lambeth. The Tribunal concluded:

"Having regard to the opinions of Dr. Cull, Dr. Robbie and Dr.

Lambeth, I find that these facts do not support a diagnosis of

chronic or delayed post traumatic stress disorder in the Veteran.

I further find that these facts do not provide the basis for a

reasonable hypothesis connecting any such disorder with the

circumstances of the particular service rendered by the Veteran".

13. Counsel for the applicant submitted that the Tribunal erred in law as: first, the finding as to the existence or not of the relevant disease should have been determined under s.120 (1) and not under s.120 (4), as the Tribunal initially approached the matter, nor under subsection (3) as the Tribunal found in the alternative; secondly if the correct approach was to apply sub-section (3), the Tribunal misconceived the test prescribed by that subsection; thirdly, it was submitted that the Tribunal's outcome was so surprising that the Tribunal must be taken to have made such error or alternatively, its conclusion was so surprising that it must be taken to have failed to adequately explain its reasons.

14. Counsel for the respondent submitted, however, that the Tribunal correctly applied s.120(4) to the determination of the existence of the injury or disease. The essential thrust of this submission was that in determining a claim for a pension, the only matter which calls for determination under ss.120(1) and (3) is the issue of whether the incapacity arose from a war-caused injury or disease: s.9 of the Act. All other matters relevant to the determination are decided in accordance with the standard in s.120(4). He submitted that this construction of the scope and operation of s.120 was apparent from the scheme of the Act, drawing attention in particular to, inter alia, ss.9, 13, 14, 18 and 19(7).

15. Part I of the Act typically provides for a number of miscellaneous matters such as commencement and repeal, and also contains definition provisions. There is the standard general dictionary provision: s.5, as well as a number of extended definitions. Section 9 is one such extended definition section and deals with "war-caused injuries or diseases". It provides:

"(1) Subject to this section, for the purposes of this Act, an

injury suffered by a veteran shall be taken to be a war-caused

injury, or a disease contracted by a veteran shall be taken to be

a war-caused disease, if:

(a) the injury suffered, or disease contracted, by the veteran

resulted from an occurrence that happened while the veteran

was rendering operational service;

(b) the injury suffered, or disease contracted by the veteran

arose out of, or was attributable to, any eligible war

service rendered by the veteran;"

16. Entitlement to pension is provided for in Parts II, III and IV of the Act. Part II provides for pensions, other than service pensions, for veterans and their dependants. "Veteran" is defined in s.5 to mean, inter alia, a person who is taken to have rendered eligible war service. Eligible war service is defined in s.7 to include any operational service, or any continuous full-time service as a member of the Defence Force during World Wars I or II. Part III provides for a service pension for veterans who have rendered qualifying service and are permanently incapacitated for work. Part IV provides for pensions for members of defence forces or peacekeeping forces. The applicant's claim is for a pension under Part II. It is convenient therefore to refer to a pension as meaning a pension under that Part. Relevantly for present purposes, s.13 contains the eligibility provisions for pension. It provides

"13.(1) Where:

(a) the death of a veteran was war-caused; or

(b) a veteran has become incapacitated from a war-caused injury

or a war-caused disease;

the Commonwealth is, subject to this Act, liable to pay:

...

(d) in the case of the incapacity of the veteran - pension to

the veteran;

in accordance with this Act."

17. Section 14 provides for the manner in which a claim for a pension is to be made. Section 18 specifies the duty of the Commission in considering a claim, namely "to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application". Counsel next drew attention to s.19(7) which provides that a claimant cannot receive more than the maximum amount of the pension by obtaining separate and independent pensions under Parts II and IV. It was submitted that although s.19(7) was dealing with a problem different to the subject of this appeal, it indicated the manner in which the legislature intended the problem should be approached, namely that there be a two stage process: first, was an injury or disease suffered; secondly, was it war caused or not? It is submitted that this two stage process was also obvious from the provisions of s.9.

18. Standard of proof and onus provisions are contained in Part VIII. Section 120, which is the pivotal provision in this matter, provides:

"120(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.

(2) ...

(3) In applying subsection (1) ... in respect of the incapacity

of a person from injury or disease, ... related to service

rendered by the person, the (decision-maker) shall be satisfied,

beyond reasonable doubt, that there is no sufficient ground for

determining:

(a) that the injury was a war-caused injury ... ;

(b) that the disease was a war-caused disease ...; or

(c) ...

as the case may be, if the (decision-maker) after consideration of

the whole of the material before it, is of the opinion that the

material before it does not raise a reasonable hypothesis

connecting the injury (or) disease ... with the circumstances of

the particular service rendered by the person.

(4) Except in making a determination to which subsection (1) or

(2) applies, the Commission shall, in making any determination or

decision in respect of a matter arising under this Act or the

regulations, including the assessment or re-assessment of the rate

of a pension granted under Part II or Part IV, decide the matter

to its reasonable satisfaction."

19. Subsection (5) provides that there is no presumption that the injury, disease or death of a veteran was war-caused. Subsection (6) provides that neither party shall have "any onus of proving any matter that is, or might be, relevant to the determination of the claim or application".

20. Counsel for the respondent submitted that ss.120(1) and (3) are directed to the provisions of s.9, and that the civil onus under s.120(4) applied to all other issues which had to be determined for the purposes of deciding whether a claimant was or was not entitled to a pension. Thus, it was submitted, the issues of "veteran", "incapacity" and "war-caused injury or disease" referred to in the eligibility provision of s.13 had to be determined under the civil standard of proof specified in s.120(4), and that it was only the causation issue to which subsections (1) and (3) applied. In this case, the initial matter which had to be determined was whether the applicant was suffering from any injury or disease ("the morbid condition"), which called for the application of the civil standard under s.120(4). As there was a conflict in the medical evidence as to whether the applicant was suffering from any morbid condition the Tribunal was required to determine, on the balance of probabilities, whether the applicant was in fact suffering from any disease. In this case, that involved the Tribunal deciding whether it preferred the evidence of Dr. Lambeth or Drs. Cull and Robbie. Its finding was that it preferred the evidence of the latter.

21. This submission, as counsel for the respondent acknowledged, involves a rejection of the reasoning of Brennan J in Bushell v. The Repatriation Commission [1992] HCA 47; 175 CLR 408. Counsel submitted that there is nothing in the joint judgment in Bushell which is contrary to his submission. In Bushell, the High Court was concerned with the interrelationship of ss.120(1) and (3) and in particular whether s.120(3) exhaustively defined the content and application of the concept of "reasonable doubt" in subsection (1). Brennan J, in a separate judgment, agreed with Mason CJ, Deane and McHugh JJ that the appeal should be allowed, although his Honour did not agree that the matter should be remitted to the Tribunal, as was ordered by the Court. However, that difference in result is not relevant to the determination of the issue here. Having regard to the respondent's submission, it is convenient, therefore, to consider the judgment of Brennan J, before turning to the joint judgment.

22. Brennan J stated that s.120 prescribed the "standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts ..." His Honour then described the operation of subsections (1) and (3), in these terms at pp 425-6:

"Sub-section (1) governs the finding of each of the relevant facts

on which entitlement depends: the circumstances of the veteran's

operational service, the veteran's morbid condition and,

relevantly, the causal connexion between the two: "a reasonable

hypothesis connecting the injury, disease or death with the

circumstances of the particular service rendered by the person".

Sub-section (3) contains a particular provision relating to the

last of those issues. Sub-section (3) is not directed either to

the morbid condition of the veteran or to the circumstances of the

veteran's operational service, but solely to the hypothesis

connecting the two. Unless the material before the

decision-maker, unaffected by any notion of onus of proof or by

any presumption, raises a reasonable hypothesis of a causal

connexion between the morbid condition and the veteran's

operational service, the decision-maker is directed to form the

relevant negative conclusion specified in par. (a), (b) or (c).

... it is clear that any reasonable hypothesis raised by the

material must relate to the circumstances of the instant case,

that is to say, it must relate to the morbid condition and to the

circumstances of the veteran's operational service which the

decision-maker finds to exist. The finding of these facts is

governed solely by sub-s.(1)."

23. However, his Honour considered that it would be an exceptional case where the Commission would be concerned with determining whether the morbid condition existed or whether there had been operational service. The more usual case would be where there was material tending to show that a particular morbid condition existed and a relevant circumstance of operational service occurred, but it was the causal connection between the two which was in contest. As his Honour said at p 427: "That is the case to which sub-s.(3) is directed".

24. If Brennan J's view as to the operation of subsections (1) and (3) is correct, the Tribunal's approach in accepting the evidence of Drs. Cull and Robbie on the balance of probabilities was clearly wrong. Rather, it should have determined the existence or not of the morbid condition under subsection (1). However, as I have been invited by counsel for the respondent not to accept his Honour's reasoning, it is necessary to look at the reasoning in the joint judgment to ascertain whether his Honour's reasoning is inconsistent with it.

25. In the joint judgment, their Honours stated that s.120 applies "where the claim involves a relationship between a veteran's injury and his or her operational service", and explained the relationship and operation of subsections (1) and (3) in the following terms:

"....the claim, having been made, must succeed unless the

Commission "is satisfied, beyond reasonable doubt, that there is

no sufficient ground for making that determination": s.120(1).

However, the meaning of the expression beyond reasonable doubt is

not left at large. Satisfaction beyond reasonable doubt is deemed

to be established if, after considering the whole of the material

before it, the Commission is of the opinion that that material

"does not raise a reasonable hypothesis connecting the injury,

disease or death with the circumstances of the particular service

rendered by the person": s.120(3)". (p 412-3)

"Subsection (3) is concerned with whether "the material" raises a

reasonable hypothesis that the relevant injury, disease or death

was connected with the service of the veteran. It is not

concerned with conflicts in the material, whether they be of

opinion or fact. The purpose of sub-s. (3), as demonstrated by

its terms and its history, is to ensure that a claim to which

s.120 applies is not met unless there is some material which

raises the relevant causal hypothesis ... ". (p 413-4)

"If the material does raise a reasonable hypothesis of a connexion

between the service and the injury, disease or death, the claim

must be dealt with in accordance with s.120(1). That is to say,

the Commission must determine that the injury, disease or death

was war caused "unless it is satisfied, beyond reasonable doubt,

that there is no sufficient ground for making that determination".

The use of the terms "the material" and "raise" strongly suggests

that sub-s. (3) is not concerned with the proof or satisfaction of

a claim but with whether there is some "material" which calls for

a determination under s.120(1).....

... we cannot conceive of a case where, for the purpose of

s.120(3), the hypothesis is reasonable having regard to the raised

facts, yet the Commission could be satisfied, "beyond reasonable

doubt, that there is no sufficient ground for making the

determination" even though the raised facts are not disproved.

Indeed, once there is sufficient factual material to point to a

reasonable hypothesis connecting the injury etc. with the

operational service, it seems convenient simply to treat the case

as governed by the application of s.120(1). If that is done, the

claim will succeed unless the Commission is satisfied beyond

reasonable doubt that the factual foundation upon which the

hypothesis can operate does not exist".

27. Their Honours indicated that in a practical sense, in dealing with any claim to which s.120 applies, the decision-maker would approach the matter by looking first at sub-section (3). If the decision-maker found that a reasonable hypothesis exists, the decision-maker must then determine the matter in accordance with sub-section (1). Provided that the hypothesis which is propounded is put forward by a medical practitioner who is eminent in the relevant field of knowledge, then it would be a rare case where it could be said that a hypothesis is unreasonable.

28. In my opinion, there is no relevant distinction between the joint judgment and the reasons of Brennan J in respect of the operation and relationship of ss.120(1) and (3). It follows therefore that the Tribunal erred in law in determining the application on the balance of probabilities.

29. However, the Tribunal also looked at the matter on the basis that the correct test to apply was under sub-section (3), stating:

"Approached in this way, the existence or not of the veteran's

injury or disease and the required connection with war service are

subjected to the test of reasonable hypothesis".

30. I have already referred to the view expressed in the joint judgment that it would be unusual to find that an hypothesis was unreasonable where it was put forward by a medical practitioner "eminent in the relevant field of knowledge". Their Honours rejected the proposition that conflict with other medical opinions was sufficient to reject an hypothesis as unreasonable, stating that there was nothing in s.120(3) which required the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion was to be preferred to another. As their Honours pointed out, the purpose of the Commission examining the competing evidence, which it was bound to do, was to determine the validity of the reasoning which supported the claim that there was a connection between the incapacity or death and the relevant service. However, an hypothesis may be reasonable although unproved and opposed to the weight of informed opinion.

31. Counsel for the respondent conceded that it was difficult to defend the Tribunal's statement that the existence of the injury, was "subjected to the test of reasonable hypothesis", that is, the test in s.120(3). As I have already stated, it is clear from Bushell that that issue is to be determined under s.120(1). However, counsel for the applicant submitted that in this case the diagnosis issue may be so inextricably linked with the causation issue, the correct test to apply was under s.120(3). Strictly, this submission overlooks the practical approach to the determination of a claim referred to in the joint judgment, namely, that the decision-maker would consider the matter first under sub-section (3). However, accepting that this alternative submission of the applicant is correct, the Tribunal clearly applied the wrong test under the subsection. The Tribunal stated that Dr. Lambeth's evidence provided the only hypothesis of a connection with the war service. However, it failed to consider whether this hypothesis was reasonable. That failure in itself constituted an error of law. In any event, it seems to me that by stating "whether the particular facts of the Applicant's war service support Dr. Lambeth's hypothesis", and in finding that the facts did not provide such a basis, the Tribunal misunderstood the nature of the test to be applied under s.120(3). As their Honours stated in the joint judgment in Bushell at p 414:

"The material will raise a reasonable hypothesis within the

meaning of s.120(3) if the material points to some fact or facts

("the raised facts") which support the hypothesis and if the

hypothesis can be regarded as reasonable if the raised facts are

true ... a relevant consideration in forming an opinion whether a

particular hypothesis is reasonable is whether, as a matter of

common or medical experience, the occurrence of an injury etc. of

the kind sustained by the veteran is commonly accompanied by or

associated with the occurrence of raised facts of the kind which

constitute the relevant incidents of the service of the veteran.

However, a hypothesis may still be reasonable even though such an

accompaniment or association is not demonstrated or even if it is

shown to be uncommon. So, in determining whether a hypothesis is

reasonable for the purpose of s.120(3), it is not decisive that a

connexion has not been proved between the kind of injury which

occurred and circumstances of the kind which constitute the

relevant incidents of the veteran's service. Nor is it decisive

that the medical or scientific opinion which supports the

hypothesis has little support in the medical profession or among

scientists".

32. Accordingly, I am of the opinion that the Tribunal erred in law first in approaching the matter by reference to the balance of probabilities and secondly, in its application of the reasonable hypothesis test. Having regard to my conclusion in these regards, it is not necessary to consider the third alleged error of law.

1. That the decision under review be set aside.

2. That the applicant's application for reconsideration be remitted

for determination according to law.

3. That the respondent pay the applicant's costs.