Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 116 ALR 210

Politis v Federal Commissioner of Taxation (1988) 88 ATC 5,029

Lennell v Repatriation Commission (1982) 4 ALN 54

Counsel and solicitor for the applicant: I. Sanderson instructed

by Vardanega Roberts

Counsel and solicitor for the respondent: S. Gageler instructed

by Australian Government

Solicitor

1. Decision of the Administrative Appeals Tribunal of 6 December

1991 set aside.

2. Order that the question of whether the applicant's arthritic and

spondylitic diseases were war-caused be remitted to the

Administrative Appeals Tribunal to be determined in accordance

with these reasons for judgment with or without a rehearing or

the hearing of further evidence.

3. Respondent to pay applicant's costs.

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

EINFELD J Henry Seymour Manley appeals from a decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal (the Tribunal) given on 6 December 1991. The Tribunal affirmed decisions of the Repatriation Commission given on 16 April and 25 November 1987 that certain physical or medical conditions of the applicant were not war-caused and as a consequence that he was only entitled to a pension at 100% of the General Rate. It is yet another case raising the much litigated provisions of section 120 of the Veterans' Entitlements Act 1986 (Cth) (the Act).

2. The applicant was born on 13 March 1921 and joined the Navy on 23 February 1938. He saw war service as an anti-aircraft gunner on various ships in the North Atlantic, Mediterranean, Arctic and other theatres of the Second World War. He was discharged on 13 December 1944 with an anxiety state and thereafter worked as a plumber until about 1980. He finally left the workforce in March 1981 when he turned sixty and qualified for a service pension on the grounds of his age. He had developed heart problems in 1970 and had cervical and lumbar spondylosis and arthritis in several joints but his claims for a special rate pension for these degenerative conditions under section 24 of the Act were rejected by the respondent Commission, the Veterans' Review Board and the Tribunal. His appeal to this Court, limited to questions of law only, seeks orders setting aside the Tribunal's determination and remitting the matter, with or without the hearing of further evidence, with the finding that as a matter of law the claimed disabilities are war-caused.

3. The case is another one of those which have been very delayed. Although some of the delay in this Court was brought about by the wait for the decision of the High Court in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 which postdated the Tribunal's determination, it is quite unconscionable that a claim by a sixty-five year old veteran who has seen active service for our country and is ill should still be awaiting final resolution seven years later. Something really cries out to be done by a feeling humane country to avoid this type of impediment to a serene and relaxed lifestyle for its war heroes in their later years. If Parliament is unwilling to facilitate such claims by appropriate legislative change, the adjudicative process should be speeded up and the claimed moneys advanced or offered pending finalisation if necessary on condition that it is paid back by arranged deductions if the claim is ultimately unsuccessful. In the balance between consolidated revenue and pensioners, there is only one place for the financial sacrifice to fall.

4. By section 24(1)(b) of the Act, a war veteran becomes entitled to the special rate of pension if inter alia s/he is unable to undertake significant remunerative work by reason alone of one or more war-caused diseases. If Mr Manley's spondylitic and arthritic conditions (the diseases) are accepted as such diseases, he will satisfy this test. His case was that while firing guns and performing other rough and heavy duties in the Navy he sustained shocks and other trauma to his spine and joints which caused the diseases. The Tribunal appears to have accepted Mr Manley's evidence that these events occurred. As they undoubtedly occurred during "operational service" within the meaning of the Act, his application falls to be determined under subsections (1) and (3) of section 120.

5. The High Court in Bushell set out the proper means of dealing with the inter-relationship of these subsections. At 414 Chief Justice Mason and Justices Deane and McHugh said that a reasonable hypothesis within the meaning of subsection (3) will be raised if the evidentiary 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. The function of subsection (3) is to determine whether or not a hypothesis is raised on the facts and if so, whether the hypothesis is reasonable. Once those steps have been taken, the function of subsection (3) is exhausted. At 414-5, it was said that it would be a rare case that the hypothesis is unreasonable if it is supported by a medical practitioner who is eminent in the relevant field of knowledge. If a reasonable hypothesis is found, their Honours say at 416 that the Commission (or the Tribunal standing in its place) will be satisfied beyond reasonable doubt under subsection (1) "that there is no sufficient ground for making the determination":

if it is satisfied beyond reasonable doubt that it cannot

accept the raised facts or so many of them as are necessary

to support the hypothesis.

6. The Tribunal heard evidence from Dr (Maurice) Geoffrey Miller, a consultant physician, and had available two reports from him dated 24 April and 12 July 1990. The Tribunal found, in my view correctly, that Dr Miller's reports and oral testimony provide evidence of a reasonable hypothesis of connection of the diseases to Mr Manley's war service. Thus the case fell for assessment under subsection (1).

7. Dr Miller's recorded history from the applicant was that the symptoms of the diseases began in the early 1950s when he saw a general practitioner and was given painkillers, and that his knees in particular began to cause joint trouble in the 1960s. He said that he saw another general practitioner in the 1970s when the symptoms worsened. During Dr Miller's oral evidence a member of the Tribunal directed his attention to the applicant's relevant medical history as revealed by what are known as the T documents (the Commission's records). Dr Miller's replies to these questions included the following evidence (appeal book 248):

... I took my history from the patient. The patient gave me

a careful history. I took a careful history. I've noted

over the years when I've been looking at these documents

that there's often - they don't correlate invariably with

what the patient says. I have reported in my opinion what

the patient stated. I've made it mainly plain it's his

statement, not my statement ...

8. Dr Miller then quoted a section from his first report of which the full context was:

The fact that his postwar activities as a plumber could have

contributed to the osteoarthritis, particularly of his

hands, as stated by the Departmental Medical Officer, is in

my opinion, quite irrelevant as he has stated to me quite

clearly ways in which his hands could have suffered severe

and in fact repeated traumata before any plumbing activities

could have exacerbated a pre-existing disability.

9. Dr Miller's reports and evidence show that he gave close attention to the T documents and the histories they reveal. Some of it, including for example a report from a Dr F.J. Minogue on 3 November 1982, supported the causal nexus between Mr Manley's war service and the diseases. Dr Miller said in evidence (appeal book pages 248-9):

... we know that ..... the history is incorrect in many ways

in these documents ... And we know that Mr Manley tends to

minimise his symptoms and has done so throughout his whole

life. That is why I took the history from him and reported

the history and I didn't comment that there was a

controversy in the documents. I just quoted my history.

10. He was then asked by the same Tribunal member:

So the point I'm putting to you - and I'd like you to

address this just briefly - is in the light of the

information contained in the T documents, do you wish to

alter any of the things that you have written down in either

of your reports? -- I wrote this report at the time I was

seeing the patient, which was the day after I'd read the T

documents. It was all fresh in my mind at the time. Every

date I've given is a date which the patient has given me and

I have reported over and over again on the date as described

by the patient. In that way I cannot see any reason for

altering my history taking. As far as my conclusions are

concerned, I don't really wish to change them, no.

... even if one were to accept that the history was not as

the patient recounted it to you, but as in the document that

he first noted pain in the 70s etc, you would still be of

the opinion that it was the injuries during service which

contributed to the conditions?

I am sure of that ..... this man has had over a short

period, relatively short period of time (on active service

in the Navy) immense multiple trauma to his joints, and in

my opinion ... this was a definite contribution to his

eventual osteoarthritis.

13. As to the time delay between these events and the onset of symptoms, Dr Miller said:

There is damage to the collagen material and the cartilage

cells become damaged and you get breakdown of cartilage,

which takes many years to really break down and cause

symptoms, and the date at which a person complains of

symptoms depends entirely on the patient. Some patients may

complain early, some may complain late. Perception of pain

and discomfort is an individual thing which is quite

irrelevant to what anybody else will consider.

14. The Commission proffered in evidence Dr Anthony Leonard Geoffrey Smith, a specialist orthopaedic surgeon, who said that the applicant's diseased joints were within normal limits for a man of his age and rejected any link between the traumatic events of the naval service and the diseases. This opinion was based upon the history presumably distilled by the Commission or the doctor from medical and other reports in the T documents that the symptoms and signs of the diseases did not manifest themselves until the 1970s. Dr Smith was of the view that arthritic changes would appear within two or three years of any trauma if the two were causally linked. A report from a Dr D.G. Seaton, a general surgeon, of 16 May 1989 expressed the view that the applicant had only a very slight spondylosis and that his activities at sea would only have played a very small part in his present condition. This brand of dispute between medical practitioner witnesses is not uncommon. The Tribunal's findings concerning the applicant's experiences on board ships to which I shall come was not put to Dr Smith.

15. The Tribunal accepted Dr Smith's evidence (with which it said Dr Seaton's opinion was not inconsistent) in express preference to Dr Miller's. In the Tribunal's opinion, the factual basis of Dr Miller's hypothesis of nexus was "demonstrably false" because the contemporary histories and medical records applicable to Mr Manley from the 1960s on show that symptoms of the diseases did not appear or were not complained of until the 1970s although there may have been some complaints in the 1960s. The Tribunal concluded (paragraph 48):

In this matter the Tribunal is satisfied beyond reasonable

doubt that the Applicant's history as given to Dr Miller is

in error. Accepting as it does Dr Smith's opinion it is,

having regard to the whole of the material before it,

satisfied beyond reasonable doubt that there is no

sufficient ground for determining that the diseases of

degenerative joint diseases, cervical spondylosis and lumbar

spondylosis are war-caused.

16. In the presence of the Tribunal's finding that Dr Miller's hypothesis was reasonable, the applicant's argument was that:

1. by entering upon an exercise of determining the relative merits of

two competing hypotheses and preferring one to the other, either

the Tribunal impermissibly dealt with the matter entirely under

subsection (3) inconsistently with Bushell; or

2. the Tribunal's finding that the history given to Dr Miller as to

the time of onset of the symptoms is disproved beyond reasonable

doubt is not a raised fact within the meaning of Bushell or was

not necessary to support his hypothesis. This submission is based

on the evidence of Dr Miller referred to earlier despite a

concession on behalf of the applicant that it was open to the

Tribunal not to accept the applicant's account to Dr Miller of the

onset of symptoms in the 1950s.

17. The respondent submitted that the Tribunal had been faithful to section 120 as explained in Bushell -- although that decision had not been given at the time -- because it accepted as reasonable Dr Miller's hypothesis but rejected the hypothesis because of its satisfaction beyond reasonable doubt that there was no sufficient ground for accepting the history as its factual foundation. The respondent said that these were questions of fact which cannot be challenged on appeal to this Court. The respondent dismissed the applicant's contention that the history of symptoms and signs were not raised or necessary facts and submitted that the history of onset of symptoms was necessary to Dr Miller's opinion. The respondent said that it was open to the Tribunal to find that the applicant had no symptoms in the 1950s and that its rejection of the history given by the applicant to Dr Miller must be taken to be an unreviewable finding of fact to that effect.

18. In my opinion the Tribunal erred in law in both respects. Whilst it is always important to avoid too minute an examination of a Tribunal determination: Politis v Federal Commissioner of Taxation (1988) 88 ATC 5,029 at 5,033 ff, and not to interfere with a decision "even if ... the Tribunal's language may have a degree of looseness": Lennell v Repatriation Commission (1982) 4 ALN 54 at 55, it is no less important not to impose perfection of language and strictly legal concepts onto doctors providing reports or giving evidence in cases of this nature especially as Bushell came after the reports and evidence in this case. Moreover, the Tribunal's expressed reasons in a particular case must be given full weight. Otherwise there is not much point in the requirement of section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) that reasons be given for each determination made.

19. Bushell makes quite clear that a comparison of expert opinions in the form of a balancing process which leads to a preference of one reasonable hypothesis over another is contrary to the requirements of section 120. The joint judgment said at 415:

Conflict with other medical opinions is not sufficient to

reject a hypothesis as unreasonable. As we have earlier

pointed out, it is not the function of s. 120(3) to require

the Commission to choose between competing hypotheses or to

determine whether one medical or scientific opinion is to be

preferred to another. This does not mean, however, that in

performing its functions under s. 120(3) the Commission

cannot have regard to the medical or scientific material

which is opposed to the material which supports the

veteran's claim. Indeed, the Commission is bound to have

regard to the opposing material for the purpose of examining

the validity of the reasoning which supports the claim that

there is a connection between the incapacity or death and

the service of a veteran. But it is vital that the

Commission keep in mind that that hypothesis may still be

reasonable although it is unproved and opposed to the weight

of informed opinion.

20. See also Byrnes v Repatriation Commission [1993] HCA 51; (1993) 116 ALR 210 at 213-214. Of course the Tribunal stands in the shoes of the Commission. Having accepted as reasonable Dr Miller's hypothesis of nexus, what the Tribunal was then required to do was to put aside Dr Smith's and Dr Seaton's competing or contrary views and proceed to an analysis of the factual foundation for Dr Miller's accepted though not preferred thesis. In fact it fused these two steps into one.

21. The Tribunal's confusion thus led it into a second error of law. The evidence of Dr Miller incontrovertibly established his opinion that the question of when symptoms of such conditions as these diseases are first complained of will in many cases have little to do with when they were actually first contracted because there are so many variables, including human endurance of pain and discomfort. The accepted reasonable hypothesis of nexus was based on more than merely a history of complaints. Further, Dr Miller warned against acceptance, especially selective acceptance, of the T documents as fully accurate on all occasions. The Tribunal accepted the applicant's evidence that his experience on board Navy destroyers would have caused him injuries and bruising which, although not severe enough to require medical attention in wartime, would have left him with aches and pains. It acknowledged that reporting "minor injuries not requiring immobilisation or immediate treatment would be positively discouraged" at that time. Yet it discounted and rejected the applicant's own symptomatic history in favour of its own reading of the T documents.

22. The respondent claimed that the applicant had conceded that the history (seemingly all the history) given to Dr Miller was wrong. Before me the applicant's counsel limited himself to a concession that it was open to the Tribunal to reject his client's assertion to Dr Miller of a 1950s onset of symptoms from the diseases. Assuming in favour of the respondent, in the light of this concession, that the Tribunal found that the applicant's symptoms first became manifest in the 1970s -- and the Tribunal did not expressly say that it did and would have had to ignore some of the T documents to do so, it nevertheless substituted for or superimposed on Dr Miller's own explanation of why he believed the diseases to be war-caused, and the applicant's sworn testimony on a number of matters, including his stoicism, which grounded the doctor's opinion, some of the unsworn historical records found in the T documents. If these were "raised facts" as distilled in Bushell, they were, on the uncontradicted evidence of the very doctor whose hypothesis was or was supposed to be under examination for its factual foundation, not necessary or essential to support it. The words of the joint judgment in Bushell at 416 must be remembered -- that to dismiss a claim on this basis, the Tribunal must be:

satisfied beyond reasonable doubt that the factual

foundation upon which the hypothesis can operate does not

exist.

23. This was not the question addressed by the Tribunal in this case. It was Dr Miller who explained what the factual foundation of the hypothesis was -- and it was not the timing of the onset of symptoms although that timing may have been one relevant consideration. The hypothesis was certainly not supported only by the timing of the first recorded complaint of symptoms, or for that matter the first symptoms. At the highest the Tribunal found that the applicant reported no symptoms in the 1950s. Even if this finding were available and were amplified to embrace a further finding, nowhere expressed, that the applicant therefore had no symptoms at that time -- although the Tribunal found that he had some during his war service itself some ten years or more earlier -- this was not the matter at issue because it was not the foundation for Dr Miller's hypothesis. Dr Miller's evidence was that either the applicant's own history of a 1950s onset of symptoms or the collation of materials from the T documents suggesting, though not exclusively, later onset, or both, is quite consistent with his hypothesis. The time of onset was thus equivocal -- it was at most one of the raised or relevant facts. None of the others were addressed by the Tribunal at all in this context because it became confused by its preference for Dr Smith's hypothesis. Although its task was to determine whether the diseases were war-caused, and this evidence of Dr Miller was vital to that issue, the Tribunal failed to address and make any findings on that evidence as it was required by section 120(1) to do. If it had done so, the result of the case would, in all probability it seems, have been in favour of Mr Manley. However, as his counsel conceded, there is still some possible factfinding to be done so it is not permissible for the Court to make the finding of nexus itself. Unfortunately this will cause still further delay of which no doubt the learned President of the Tribunal will be acutely conscious when the matter is again fixed for disposition. At that time, it will be noted, Mr Manley will be seventy-three years of age and in even more fragile health.

24. I set aside the two decisions of the Tribunal under appeal and order that the question of whether the diseases were war-caused be remitted to the Tribunal to be determined in accordance with these reasons for judgment with or without a rehearing or the hearing of further evidence. The respondent will pay the applicant's costs.