Hutton, Thelma v Repatriation Commission [1998] FCA 56

A second report of 18 November 1994 provided, inter alia: "Following is a summary of Mr Hutton's current health situation. He has the following on-going health problems: 1. Chronic air flow limitation. This is on the background of a past history of pulmonary tuberculosis and smoking. He suffers chronic respiratory failure and requires home oxygen. He has severe dyspnoea on minimal exertion. He was admitted to Gosford Hospital on the 7th September following a respiratory arrest probably due to CO2 retention precipitated by over-use of home oxygen. Pre-discharge his spirometry was FEV. = .5. FVC = 1/15. Blood gases pre discharge on 2 litres of oxygen per minute showed an 02 of 75 and CO2 of 47. Mr Hutton is severely incapacitated by his breathing and can walk no further than 15 metres. 2. Ischaemic heart disease. Mr Hutton suffers frequent episodes of angina which tend to be precipitated by cold weather and exertion. He is on maximal medical therapy for this. 3. Cholelithiasis - Gallstones have been demonstrated on an ultrasound and Mr Hutton has had recurrent episodes of right upper quadrant pain, two of which have required admission and have been associated with abnormal liver function tests. He is unfit for surgery so has been managed with analgesia p.r.n.. Ceasing morphine, which he was previously on, has resulted in less frequent episodes of right upper quadrant pain. 4. Reflux Oesophagitis - This has been proven endoscopically and causes recurrent heartburn as well as iron deficiency anaemia. Introduction of Losec therapy earlier this year has resulted in less frequent symptoms. 5. Degenerative Disease of the Thoracic Spine - Mr Hutton suffers severe intractable pain in his back radiating down both arms. It is precipitated by minimal movement and occurs at rest. It has been extensively investigated in the past and has been assessed at the pain clinic at Royal North Shore Hospital. As well as medication, Mr Hutton uses a Tens machine. He is severely incapacitated by the pain in that any activities result in him being severely distressed. ... Mr Hutton's level of functioning is extremely poor. He requires assistance with showering, shaving, going to the toilet, dressing and all adls. He is mentally alert. His wife functions as a full time nurse and provides the assistance he requires. He can use his arms and legs but as a result of the above illnesses, his functional capacity is very very poor." Evidence in support of Mr Hutton's application was given by his widow, Mrs Thelma Hutton, who gave this evidence, inter alia: "Okay, in about 1991, which is going back five years, did he have much - did he have pain anywhere in his body?---Yes. Whereabouts in his body?---All over, back, all over his back, down his arms, down the back of the neck when he sleeps. Dr Egan says that he could not walk for longer than 15 minutes?---No, he couldn't. And was that a result of pain or was that a result of shortage of breath?---Pain and shortage of breath, that would go with emphysema. In 1991, this pain, do you know where it occurred, did it occur in his chest or his back?---Chest and back. And he also had a shaking?---Yes, very bad shaking. And so in 1991, was he able to - he was not able to bathe himself, you have given evidence of that?---No. Could he eat, could he cut up food?---Yes, he was a very poor eater and he couldn't cut up his food. No, I had to cut his food up, even in hospital, I had to tell them to cut his food up and then his food would be left on the table because he needed assistance with it. ... Did Dr Egan ever mention anything to you about your husband's capacity to use his arms?---No, well, Dr Egan didn't have much to say about that. He just said like - Dr Egan said like he could move his arms, he could move his legs, he could move his - like he could shuffle along like a real old man and he was only in his 60s, he was 68 but he could only just shuffle or fairly shuffle along if he was getting out of bed but as far as holding anything and that, no. He was too weak. Did Dr Egan ever ask you about the capacity of your husband to use his arms?---I spoke to Dr Egan about that and Dr Egan, he thought that he could move his arms and his legs but he can't cut up food and he can't hold a cup, he was too shaky and that's - like, even in the hospitals I had to repeatedly tell them that he needed assistance with feeding. I'd go in there and his food would be on the table still there and he'd be unshaved. I reported it to Gosford Hospital. I'd go in there and he hadn't even been shaved." On that evidence the Tribunal formed the view that the veteran's two arms had become permanently and wholly useless within the meaning of that term in s 98(3). However, the Tribunal rejected the claim on the basis that it had not been shown that the veteran's condition was an incapacity resulting from a war-caused injury or war-caused disease. The Tribunal said:- "Turning to the second question, there is no dispute that the veteran was in receipt of a disability pension under Part II of the Act. The medical evidence before the Tribunal connects the condition of the veteran's arms to degenerative disease of the thoracic spine. There is no evidence before the Tribunal that this is one of the veteran's accepted disabilities. The Tribunal accepts that the evidence adduced clearly points to a severely disabled veteran needing considerable assistance in the activities of daily living. However, there is no medical evidence or other evidence before the Tribunal which would reasonably satisfy the Tribunal that it should accept the submission made on behalf of the applicant that the incapacity in the veteran's arms was connected to his accepted disabilities of thoracic kypho-scoliosis, lumbar spondylitis or anxiety state. Nor is there any evidence before the Tribunal to reasonably satisfy it that any of his other accepted disabilities were connected to the incapacity in his arms. The Tribunal therefore cannot be satisfied on the balance of probabilities that the veteran satisfies the condition precedent in subsection 98(1) and finds accordingly." The Tribunal's remark that there was no evidence that the incapacity in the veteran's arms was connected to his accepted disabilities of thoracic kypho-scoliosis, lumbar spondylitis or anxiety state could be well-founded only if kypho-scoliosis was not a degenerative disease of the thoracic spine. Dr Egan had in fact referred, in his report of 18 November 1994, to five conditions, three of which appear on their face to be conditions which had been accepted as war-caused disabilities. The first was chronic air flow limitation, which would appear to be a condition connected with the accepted condition of asthma and the connected condition of chronic bronchitis with emphysema. The second was ischaemic heart disease, which would appear on its face to be another description of atherosclerosis. The third was degenerative disease of the thoracic spine which, on its face, appears to encompass or describe thoracic kypho-scoliosis, which is a condition of deformity of the thoracic spine which one would think would be a degenerative condition. Because Dr Egan had said that those conditions were connected with the veteran's functional incapacity, it is perhaps not surprising that the statement of issues which had been put into the Administrative Appeals Tribunal by the respondent raised an issue only under s 98(3) of the Veterans' Entitlements Act. The statement specified the contention: "That on reasonable satisfaction, balance of probabilities, that the criteria of s 98(3) was not met by the late veteran during the period on and from 28 May 1991 up to and including 17 February 1995 being the date of death. In that during this period the late veteran's arms were not `rendered permanently and wholly useless.'" The statement of issues did not in terms raise any question about the connection between the veteran's condition and his accepted war-caused disabilities. In my opinion, the position was such that the Tribunal was bound by the principles of natural justice to give to the applicant notice if the Tribunal had it in mind that it would decide the case on a lack of evidence connecting the veteran's condition with his accepted disabilities. That is because, on the face of it, that matter was proved by the evidence of Dr Egan and no challenge on that ground was made during the hearing on behalf of the respondent. I would apply the view which I applied in a somewhat similar circumstance in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 488. Counsel for the respondent has submitted that this was a straightforward case of a lack of appropriate medical evidence, that it was for the applicant to prove the necessary connection and that such connection was not proven as Dr Egan's reports did not in terms specifically state that the veteran's conditions were war-caused disabilities. In my opinion, in taking administrative decisions under the Veterans' Entitlements Act, it is inappropriate to take such a technical approach to decision-making. An administrative decision-maker is bound to deal with the substance of the matter in a sensible, efficient, administrative manner. Generally, if any problems arise as to proof, the administrative decision-maker should raise a query and call for further evidence. Section 119 of the Act provides, inter alia, as follows:- "119. (1) In considering, hearing or determining, and in making a decision in relation to: ... the Commission: (f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just; (g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities;" In that circumstance, the Tribunal ought to have adopted an approach which arrived at the substantial justice and merits of the case without regard to legal form and technicalities. Indeed, s 33 of the Administrative Appeals Tribunal Act itself specifically provides:- "33. (1) In a proceeding before the Tribunal: ... (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit;" In the light of these provisions, it was inappropriate for the Tribunal to take the view that the claim should be dismissed simply because no medical practitioner had given specific evidence that the conditions of which Dr Egan spoke were accepted disabilities. There was, in my opinion, a duty on the part of the decision-maker, the Tribunal, to raise the issue with the applicant's representative and to give the applicant's representative a fair opportunity to adduce additional evidence, if the Tribunal thought that such evidence was required. For those reasons, there was in my opinion a breach of the principles of natural justice. The decision of the Tribunal should therefore be set aside and the matter should be remitted to the Administrative Appeals Tribunal to be heard and decided again in accordance with law. The respondent should pay the costs of the application. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Solicitor for the Respondent: Australian Government Solicitor