Lennell v. Repatriation Commission [1982] FCA 1

Federal Court of Australia|1982-02-03|Before: Sheppard JJ, Shepperd JJ, Toohey J, Northrop J, Sheppard J

Repatriation - war widow's pension ~ death of former member of Armed Forces from adenocarninoma of the lung ~ whether death had arisen out of or was attributable to war service - standard of proof.

Administrative law - Administrative Appeals Tribunal - appeal to Federal Court of Australia - standard of proof to be applied by Trinunal - misdirection in approach by Tribunal to evidence - remittance of matter to Tribunal,

BETWEEN: BETTY LENNELL . Applicant and REPATRIATION COMMISSION Respondent ORDER JUDGES: Northrop, Toohey and Shepperd JJ. DATE: 3 February 1982 WHERE MADE: Melbourne

The decision of the Administrative Appeals Tribunal be set aside.

The matter be remitted to the Tribunal to be heard and determined according to law after the Fearing of such further evidence as 1t may Gecide to receive.

The Repatriation Commission to pay the applicant's costs of the appeal.

WESTERN AUSTRALIA DISTRICT REGISTRY W.A. No. G.23 of 1981

Applicant and REPATRIATION COMMISSION Respondent CORAM: Northrop, Toohey and Sheppard JJ. NORTHROP J. and SHEPPARD J. REASONS FOR JUDGMENT 3 FEBRUARY 1982

In this matter we have had the advantage of reading the judgment to be delivered by Toohey J. We are thus saved the necessity of setting out the essential facts, a summary of the conclusions of the Administrative Appeals Tribunal ("the Tribunal") and the effect of the decision of the High

Court in Repatrietion Commission v. Law (as yet unreported,

16 October 1981). Subject to the further matters hereinafter

referred to we adopt those aspects of his judgment.

coming before the Repatriation tribunals in which persons

Claim to be entitled to pensions under the Repatriation Act 41920 ("the Act") as a result of the contracting of cancer by the claimant or by a person upon whom the claimant was dependent. In this case the essential questicn for decision

concerns the meaning and effect of s.47 of the Act.

The evidence was such that no tribunal properly directing itself as to relevant matters of law could have reached the conclusion that it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. As a matter of law, the only course open to the Tribunal was to hold that it was not

Contrary to the principles decided upon in Law's case and to what the 'Tribunal itself said about them, a reading of its decision discloses that 1t had imposed en onus of proof upon the applicant to establish a causal link between the deceased's war service and the cancer from which he died, an onus which upon the true construction of the legislation she @ad not bear. Jt 15

noted thar in Law's case the High Coart considered the

effect of s.107VH of the Act while the present case concerns the effect of s.47 of the Act, but the

substantive effect of the two sections is the same.

In the submission of the Commission ic was plainly open to the Tribunal to reach the conclusion which 1t did. Nor, in its submission, was there any failure to apply the principles of Law's case. A proper understanding of the Tribunal's decision, reading it as a whole, did rot disclose that it had imposed any onus of proof upon the

It 18 to be observed that the two submissions relied upon by the applicant are separate and distinct, the first not being based upon anything said by the Tribunal in developing its reasons. It goes only to the Tribuna]'s conclusion. If that submission were upheld, tho proper course would be to substitute for the Tribunal's decision, a decision that would have the cffect of there being granted to the applicant the pension which she seeks. On the othor hand, if the first of tle applicant's submissions be rejected, but the second upheld, the appropriate course will be to remit the matter to the Tribunal so that it may dec:déc the matter according to law. In thac event it would not be

appropriate for us to substituie any decision of our own for

that cf the Tribunal. What we have said indicates tnar. If the first submission be upheld it will be unneccssary to consider the second.

The evidence referred to by Toohey J. ain his Judgment denonstrates that if the applicant had been required to make out a positive case, it would have been an extremely weak one. Indeed, there is mor cto be found in any of the medical opinions any support for it at all. But in the applicant's submission that is of little consequence because she carries ne onus of procf:; the Commission on the other hand bears the heavy onus ef Gisproving absence of causation between the deceased's war service (including accidencs and diseases suffcrced in the cavrse of or as the result thereof) and the cancer from which he died; see ss.101(1) and (1A)

In summary, the mzcters relied upon in support of the applicant's first submission may be summarized as

The deceesed died of cance: suffered in the first

Whilst on wer service cre Geceased suffe: 7 bouts of tonsillitis leading eweatviclly to the removal of his

Whilst on war serv+ce the deceased suffered stress arising from a number of dist:essing incidents dctailed in the evidence, che prircipst of which were the crash of a Whitley bomber in which the deceased was carrying out pirlot training, one of the engines of another howher of which he was the pilor catching fire, e Halifer bomber crashing and bursting irto flamec (incinerating 1ts crew) at the end of a runway, and a Stirling bomber, blowing up in mid air in frort of his aircreft during

The deceased smoked cigcrettes during the period of his War service, haying teken up cigarette smoking prisr to

The deceased suffered ctrouble with his back due, firstly, to some injury therero suffered in the crash of the Whitley bomber, ané@ sscordiy, co posrural problers arising because of Jong Bovis in the confined spaac of

The cause of the concer from which the deceased dic is

service ang oavents and cissasce associates theresith as

did not positively exclude the following ponsihilitioe-,

The cancer was causes by cigarettes smorcd by the deceased during ard ofter the wac, and possible increascd wroting beina due to the stressful conditions under whic' ho served and bouts of pain

of stress vpon him aacepentently of cigarett is cok ty rt ft nh seartng at tne dengs uc vlecd*,. er to taer rtte

PCW! Vata. Fuero £. AL atener of a facts © of urner

hisucry vi gusumapss ant, bis reto oc, na avid ue GE fee rrain, of his lungs.

Just mentioned, 1t weuld seem to us thal theger renwins e¢ Serious Guestion mark aboun smokeng as a cuuen The Te stays

was able to discount this poseibrlity hecaus> of a view Elton

aout tae cvidence of Prefgesso., Yettierssli, ora +- the werljcal peackition.e.s ced lrd pelore yo. thls bert ends

adgentcureinona, Vic oage gabbar al! os yet gage ex-member rad ai smolrirg hahin refou onisatnency? there gs ne evidence Coen Lhat hablo was imecienas 4, Flieiesd as erolor ged te

Professcn Wetcursatt re Pye ferr or or Car os Gedicines ot the Univertias of Sy icy Te atastab eritea 4 earch cuncer aud aleo retorts raoeot ch apta yheoc .

Gas qearye pat recess toga 4hoe Seootsan Ty Toa |r tte ye r no, ca. Ga abe 27 tae ' mt tbe Cundar gs up Cie wus ae Cr a | 5

eae 18 OF tne eneh oe tae tee hts wor 4 to fren tT 78 tae Torry ic ab gases] maagcey. thak seatwc? -

be oan, Yes? --- No. You wp feyled ls ,loobas oo te on cw Me, cheers be¢ been tet to uestk swckipy? Poscb os yee euvli exoock this Uictete te oecur? s-- Vaud resvect, Toaa ey ro Logo now fro, whe etsy beorrs fa.st or Sifu, crore .etie.

ar - mee? ree ~ = L . -. was ¢') cSidee Frem ceagel which wed |

che trarsacsr@hl tiaat COurvel's ease Pad tie vary ESLENL.

Ps ove counderscend ott, the por, wri, Poe Wes'cercall vas makzng 1s thit rescsren Tees agro cm, de 1 fay whether the origimal «esd, ta cedle ay che acre Tuma. vas C.rsta by the cits mr th. Bee Net | pare ree, LIPS we Si MET Ecyear to Urs vet, btn Pay te ee I Clsalcete fuhich er istiv - vo tesor 4 cok 5 prubsbly smehoo Curinge 6h te 'ec atbeo. t,o aa. te

"LLP a ypre reed thn ob an ' thac pho 7 a SL pees to un te atta la ose tte ay ote? asp e e EG4 2 qed EPIS eee eye, roy leg t a . to aycd ll? Ie to woe 3 wee pet

Tortteor, sd] e@ yeasuly care oF bez coer te Ut res Geahar ed, a voudi! Aare tee tea rou Tite nd ecd boon oeeet ehstho, aeelaig fe 4 to? >, 75 1° LOSS ple caute, n- welt inv cote mu rizplatevively. Thac te tho to nar oT Poe ce te ore, Wokled art cqdiag F + eritycie eho yt Fi ING, TL 1G rus to say ubeb rb oreo tm re Tas ¢ that the ceceased's smohing babit wei unere xl d, = pealonged by nis wer servies. The only @ecpiedus an smoking us that he said, on enlistesre on Ft Santee thao be enohed erat! ovgricuresr per d-,. Ppeounse Vee Or nis dire he said, in uw Sastary civ te 7 Sector; hed necome a mederale pipe fmen ft. phere al ag ee any Stiatetent ueeae by the deucesel as to cha opis emokrag in the porrod an beret, gecepe tee wu wobld saqgest thak bo comauncd co cmore Sugery the the peried betsvecn his enlushucue aul or "Ths bo og. Jife. Povecer, 2h would seon te us 6c bo ounlibedy nase s Of hoewan exnortence, thet ste oe vt omg tT og Save sntreasid Gurtng base vur yer my i moasca* evaier oc. Cite tones Vda ten tb a on, perce much concsried vith bie H--lit Trot Pos eurtng the wer, Berige rd yoy rte eth a G Garth po owereaonla. reaghee erty ~ 4 1 Che eta ee se ea on £ . Rees t. tarey EN eo bys Ak) ee nd 7

whe! IL hey ovat bh Tes. £44 peeves ,ooay ts oan , : 1 : Loo

Fale MLC my an
ja- Cis Fauna frau fe crores dyfasa, al ho«. jv msas ; ee ' fremal to be el tiahaes

1 - 5 as - ott that rac re rea Goss Nat cCoturee wig e

mvt thar: +. ule, ca OO Os a ia Yon od, vet ooy.y Fe)

find thac at cannot Le satis tied hoeyone cooton Ble da broth t there are insufficient grert ow uke eto, becadse OF tne ceaperct "rom ty oer, taal polnt ox view, OF Lhe Mere ab oyvadenss Ene ey ope ota | distinguished from tre clercs of craton. Prercd ore hy 7a tan 7,

in the dictum from ertad We thank thaue our Cio. that there was no ree te

by war service ari Tey ota Tribunal misdirectecé itself as to the of fect of fs. SoS the criticah years 2242 to E9°5. Wee slsben LL, re oc ac MWisunderscasd Proleerer Tereer|erti ts ove ene er Vo tu 7

Atself to discount the part inet swohirg woy beove ul yo.

That criticism does ner Joes us to tue war char rn tedbea fy properjy @nrectine Lisetr, enuld hear e.thesy tlie , eonelusion as did the Traues-Ll acre. Vt felisve eaci 4!

Say soreching of the apelrrent ts ow. cies sane char an 4

case wierve &@ Servicwtae Cost oor e's , tte ' ' was unknown. Fis cependone, a . PeCadse leo (8 NOD Hoos, be ct Cow, : , coat ' ' tro dvseage From .rrch blo odact cer moto ma ert ses, cos

bevond reason bie doubt ther cho cause could not free Poon veloced $0 sar service. We do not tink trar thot apocaach ourh: LO succced neorc. "e ace oF that opinion brecise of tin amocne OF ovicence which there df copecrning cho doce 2 Cte facaucel nistory and tar service, We woul concicrr sun ot gtmer?ti] eporcech tio be unhejotul and dongeraus. Th GOver-simplilies the probler and -e2eks te equzte the AuSttal.cn lLeqislation to thet an force 29 the tarteu Kingdom. In our opinion the decisions in cngland in Judi vy. Binister of Pensions (1966) 2 O.R. S80 end Coe v. Linister of

Pensions (1967) 1 0.B. 238 have no applicetion in Mustialic.

he now consider the aprlicaunr's second suPrisstion, Ore uf une wectters to be taken inky account in relatior ou that suriaig7ian is the misunders3steuding or Professec Tacters2il's cvidence just reierie€ te. Vho orher moth ms relted toon ate, Jn Summary, based upon a serier of Fan i98|s of tae Tribunal which, in the sbbosssion of the aupl.cate, are se phrased as to indicate that the 'Pribunal, hos achstcrdiny statements to the contrery eloswere an ihe

ay fact gwepoce) an oes of proof u.an the copntic. 7

"thete IS ne evilewes "ot -ny Stren. war induged or othe.wite, aid produce snen an ecerIeratior in tht eose."

m "Havang cecurd to al} the cvisenee, awe ate sutarfied that thoes Aad necn ne ai, client oo bhe en-momoer's dmerane mecha 29m or rhat on had sufferea Fron twavne deficicucy. bere is no eyidence whieh .e eccepe as showing ay relationship svtwoer isting deficiency ld thie ex mmbe:'s edenocerciite."

"There 28 no evidence that the site of cho ex-wenbper's -adencearciicia vase in en eres of Scag OL vuat there wes eny scacring of tre ex-meroer's Inng."

"There 1S no evidence thet his smoking r-bir resulted from any occurrence that bappcned

during the pericd menrioned in cechion 191(1)(a) cf the Ack or arese out of on atiribatahic te Gis wer service. Sac ule

These findsuss apreat cotsrds the cvs of che Pritenal's deetsiow sfte: tt had comecsced 1ts fined ansdwris

of tLe owilderle, bok nefore rt led corsinored? © .47 of the Bet

tné fidgnh Court in Law's case. Tne faindanes, which are

interspersed with more detaticd discussion, are inticduced iy

eno Tribunei vate che vords "(o} recowed our fandrigs™. in ovr G apolieani le correct in tho suemiscior ect

by hex oc inset thet cho Wriourc) docs wenoerr .o be fhetar

pesitively that ceo cancer wee caused by var servic. vo Luank therzrcare thel tts EF creian faust bo Usted oe

INC lewIOns Cher the Trileest poorer dy ctl ac toe'

relovory Tosislation e¢ Veog be aha Tic tare Ll, 4h,

Laver ¢Bucer Tuatthher Landinis poss wely cretucuna cot Service of fF wanes, eer d atvetorer ure omy ra ar tie question of whether come unerown pe ckar wee gq menttanet ir 3 cause. Aagy ich poceibtlity wee said to boa feneifl o,

tenuous. Orcher parts of Professor Tattersall's «evidence voir referrcd to. Amongst other things the Profercsor had said thac 1t was extremcly improbanle chat the @eceased's var

chance was excrenaiy ew2li", Lone: UraeeSo0re Taecersall he

adnirisivcetive tribunal caught not lightly teterrero wiih 1t3 Gdecisione cven tf che cours feels that the ti abunett.

angvese ily have i dequsce 9 nol Lo inculge in @n cunreses . LL over-leatou.ly pacts ta

tritune} up in the vay bt Jas oenrececet Tbe ste, Thet 76

particuler]y so whan tt aponoers preperty 10 Rew vneore oo

true thet 2f one is concerned vith the cuestion of wheihe: of noc something may have been caused by real or diet si

possipniliv.ie:, ono way Lagivimately weckle the prioblrn fb

deciding Guar sone rejevent faccor urs pocitively ost a cause. The very positiverncas of the decision cxctude, tre

factoc 425 boing no more then teruous of fanciful. Bue Ff the

Tribunal does approech the mactec jn tnis way it coTchr,;

notwithstanding the Jlatitvde in langsage thet it should properly be allowed, be careful to kee. in mind what it jis

that 1b ts abour. ft rust be at puins to avoid vhe dan. r of

this submission should he. Hoeving reflecred on the matecr ve

have reachee the conclusion that the tiihunal's findings nay weil contain the seeds of error. Pacn we add into che

balarce its misunderstanding of Professor Taltero It's

evidence earlier referred to, we rezch the opinion that tic

Fribunal cid misdirece itsel£ in the woy than it aporacchie?

the matters with che resele thet dts dacicion sheuld beouw t aside and t!* mactter remitted to che Triperci te te hess 4 a

decided ugain. Ve express no sew ap toa wh eunesr Lhe Vrvhe 7

should hear furcher cvsdence. Teac FH a rlalles wiih e

: 4 . ' . ' coir Hep gh owt ie , oy , t . yo a pat ra Cy Ce a . 7 7 1 . Seer fs Fy Pelt Cn »! ae fy ' .

) . ) a, WESTERN AUSTRALIA DISTRICT REGISTRY ) W.A. No. G23 of 1981 ) GENERAL DIVISION )

' ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

- on Kos petannientiiets REASONS FOR JUDGMENT ' ="TOOHEY J.

confers on the Federal Court jurisdiction to hear an appeal from the Administrative Appeals Tribunal ("the Tribunal") "on a question of law". , : In this appeal the applicant challenges a decision of ; the Tribunal which upheld the rejection of her claim for a ' war pension on the ground that thedeath of her husband Edward John Lennell was due to his war service. : It may be useful to set out in summary form the chronology of events associated with the making of the claim.

This summary is in large part borrowed from the reasons for

The applicant's claim was disallowed by a Repatriation Board.

The applicant appealed to the Repatriation Commission against the Board's decision.

The applicant appealed to a War Pensions Entitlement Appeal Tribunal. Further evidence was placed before that Tribunal which referred the further evidence to the Commission pursuant to s.64(4) of the

The Commission considered the further evidence and adhered to its previous decision.

Pursuant to s.48 of the Repatriation Acts Amendment Act 1979, a Further appeal by the applicant came before

if it were an application under s.107VC of the Act. During that hearing the applicant's representative made a request under s.107VZZB(3) of the

Act that the decision of the Commission be referred for review by the

The President of the Repatriation Review Tribunal referred to the President of the Administrative Appeals Tribunal the decision of the Repatriation Commission with a request that the Administrative Appeals Tribunal review that decision.

The President of the Administrative Appeals Tribunal directed a review by that Tribunal of the decision of the Repatriation Review Tribunal.

The hearing before the Administrative Appeals Tribunal began.

26 May 1981 The Administrative Appeals Tribunal delivered its decision, affirming the decision of the Repatriation Commission.

23 June 1981 The applicant lodged notice of appeal from the decision of the Administrative Appeals Tribunal to the Federal Court.

18 September 1981 The hearing of the appeal to the Federal Court began.

In Law v. Repatriation Commission (1979-80) 29 ALR 64, also concerned with a claim to a war widow's pension, I spoke of the "unsatisfactory situation of such achainof review procedures" (at p.67). Mrs. Lennell's appeal reached the Federal Court by a somewhat different route to that traversed by Mrs. Law. But it too gives cause for concern whether such a costly and time- consuming line of procedures cannot be streamlined.

This appeal concerns several questions that were argued in Law's case. At the time of hearing, the decision of the Full Court of the Federal Court in that matter (Repatriation Commission v. Law (1980) 31 ALR 140) was under appeal to the High Court. The present appeal to the Federal Court was necessarily argued onthe basis that the decision of the Full Court in Law's case was correct, the respondent however reserving all rights pending the High Court's determination.

On 16 October 1981 the High Court delivered its decision, dismissing the appeal of the Repatriation Commission. Although it will be necessary to refer to the reasons of the High Court in some detail, it is enough for present purposes to say that the Court upheld the decision and reasoning of the Full Court,

thus making it unnecessary for the present appeal to be ,

The present applicant was obliged to identify the questions of law to be raised on her appeal. This she did in some detail. I am satisfied that as formulated and as argued the appeal satisfies the requirements of s.44 of the Administrative

Appeals Tribunal Act so as to ground the jurisdiction of this Court.

Put broadly, the questions of law are whether the Tribunal correctly applied a number of sections of the Repatriation Act, whether it correctly applied the decision of the Federal Court in Repatriation Commission v. Law and whether, as a matter of law, the Tribunal could properly have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the appellant's claim.

The grounds of appeal reflect those questions of law, contending in the main that on the evidence before it the Tribunal could not properly have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the appellant's claim.

The Tribunal had before it a great deal of material including files relating to Mr. Lennell's war history and subse- quent medical treatment; as well it heard from a number of medical witnesses. While it is necessary to examine some of this

material and to mention same of the evidence, the requirement that the

appeal can succeed only if, in effect, the Tribunal was wrong in law makes it unnecessary to refer to the evidence in great detail or to analyse each finding of the Tribunal. The

Tribunal's reasons are expressed in a lengthy judgment.

Mr. Lennell was born on 19 February 1920 Between 24 August 1942 and 11 September 1942 he was in the Australian Army; he was then discharged to enlist in the Royal Australian Air Force. His enlistment in the RAAF lasted until 11 December 1945 and included service in Australia and in the United Kingdom. He had begun smoking cigarettes before enlistment and continued to smoke during his service,

While in the Forces Mr. Lennell received medical treatment for a variety of complaints including inpatient treatment for tonsillitis. On 22 October 1973 he lodged a claim for medical treatment and pension, based largely on anxiety and tension and pain behind the nose and eyes and temple, sometimes accompanied by pain in the neck and shoulders. He also referred to "the odd pain around the heart and chest over the years".

He began to take valium to cope with the bouts of tension. [In December 1973 and February 1974 Mr. Lennell complained of chest pains. He sought but was refused by a Repatriation Board a pension in respect of this condition. In May 1974 he appealed against the Board's decision to the Repatriation Commission but did not proceed with the appeal. ~ On 9 May 1977 Mr. Lennell was admitted to Sir Charles

Gairdner Hospital where he died on 9 June 1977. No autopsy was performed but the diagnosis of his death was in these terms:

Until the matter reached the Tribunal, the only medical evidence tendered in connection with the applicant's claim had been reports from three doctors which were submitted by the

applicant. These reports appear almost in their entirety in

Dr. Uarris, Mz. Lennell's general practitioner, referred

to Mr. Lennell's cause of death as adenocarcinoma of the Lung

"which is a form of carcinoma, which although statistically higher in occurrence in smokers, nonetheless occurs in non-smokers, so that this aspect of the mattexr might reasonably be dis- regarded. The only other feature in his history which may be of significance is a long history of URTI (upper respiratory tract infection) and

Dr. Harris's conclusions were expressed in these terms:

"Where a man dies of a condition, of which the cause is not known, it is quite impossible to say with a certainty, that something during his war service may not have caused or played a part in the production of the condition. As a doctor, I am quite unable to state that Mr. Lennell's death was not due to war service, and under these circumstances feel that

The report of Dr. Demetrius, a departmental medical officer, detailed Mr. Lemnell's condition and concluded:

"In my opinion this man developed cancer of the lung in 1977 and this rapidly spread and caused his death. He was a pipe and cigarette smoker and this was a risk factor. The cancer arose in & predisposed male and is in no way connected with service conditions or ailments (U.R.T.I., sinusitis and tonsillitis), nor is it related

The report of Dr. H.R. Elphick, whom the Tribunal described as "a highly qualified chest physician! was as

cause of Adenocarcinoma of the Lung, I advise that adenocarcinoma is one form of malignancy

never smoked a cigarette. The incidence of adenocarcinoma is slightly higher in smokers than

other cause must be active in the production of this form of malignancy. There is very strOng statistical evidence to the effect that squamous carcinoma of

smoking but the same cannot be said of adenocarcinoma."

Although none of these reports was, in medieal terms, favourable to the applicant's contention that her husband's death was related to his war service, she argued before the Repatriation Commission that, the cause of death being unknown, the evidence created a real possibility that something in the deceased's war service contributed to or was a factor in the development of the adenocarcinoma. In counsel's words: "The possibility cannot be excluded, and that is a real possibility".

It will be necessary to say something about this submission particularly in the light of Law's case, but that is best done after a consideration of the additional medical evidence presented to the Tribunal. That evidence was in the form of oral testimony from four highly qualified specialists called by the respondent. Their evidence was detailed; it was discussed and quoted from at some length by the Tribunal in its reasons for decision. For the most part I need do no more than summarise the Tribunal's analysis of the evidence.

Professor M.H.N. Tattersall, Professor of Cancer Medicine at the University of Sydney, identified cancer as an

"insult™ to a cell which requires a further process described as

"promotion" before the cell becomes a cancer cell. In terms of

what Prof. Tattersall described as the first insult, cigarette smoke is an important factor. As regards adenocarcinoma of the lung, the other factor is lung scarring or damage to the lung. In his view there was no way of knowing when the first insult to Mr. Lennell's lung occurred. The "lead time" could be as high as 35 years but it was not possible to implicate Mr. Lennell's smoking between 1942 and 1945 as having anything to do with the development of this particular cancer. There was no relationship between psychological factors and carcinogenic insult. There . was nothing in the evidence to suggest that Mr. Lennell had lowered immunity. Prof. Tattersall thought it "extremely improbable that his war service was aetiologically related or contributory to his lung cancer ... I regard the chance as extremely small". Nevertheless he was not prepared to exclude the possibility that war service was related to the development of the condition of lung cancer or that an event during war service was responsible rather than war service itself or that the cancer may have happened during that time frame. However he thought it "extrenely unlikely".

Dr. P.J. Zilko, a clinical immunologist at Royal Perth Hospital and lecturer in immunopathology at the University of Western Australia, thought it improbable that Mr. Lennell suffered from immuno-deficiency of clinical consequence. In his view there was no relationship between tonsillectomy and suppression of immune function. His conclusions were in these

"1. It is improbable that this patient suffered from immuno deficiency of clinical consequence. 2 it is most improbable that the

Dr. A.B.X. Breslin, a specialist in chest diseases and consultant to the Department of Veterans Affairs, thought that most malignancies develop in smokers some 15 to 25 years later "suggesting ... that the lead time is of that order ..." However there was evidence that the lead time ° was of shorter duration. There was no evidence that Mr. Lennell had lower immunity or immune suppresssion on service or indeed that either led to cancer. He could find no evidence from Mr. Lennell's file that on service there was any probable or possible cause of carcinoma. The lead time was against service being related to the subsequent development of the malignancy.

Dr. B.K. Armstrong, director of the National Health and Medical Research Council Research Unit in Epidemiology and Preventative Medicine in the Department of Medicine at the University of Western Australia, thought that statistically there was something like a 70% chance that smoking was the major cause of tir. Lennell's adenocarcinoma. There was no acceptable evidence that Mr. Lennell] suffered from immune deficiency from whatever cause. He could find nothing in Mr. Lennell's file and

history to lead him to believe that his war service was a factor

Beving referred to the medical evidence, the Tribimal went on to consider what conclusions should be drawn from that evidence and then to deal with various submissions put to it, Et is the way in which the Tribunal approached the material before it that lies at the heart of

this appeal. in order to determine whether the Tribunal erred

in that approach, it is necessary first to see what was said by

the High Court in Repatriation Commission v. Law (1981) 36 ALR 411.

The members of the High Court were unanimous in dismissing the Repatriation Commission's appeal. Gibbs CJ, Stephen and Mason JJ concurred in reasons delivered by Aickin J; Murphy J delivered a separate judgment.

After a consideration of the material provisions of the Repatriation Act, Aickin J said of the Repatriation Review

"The Tribrnal is required to set aside a decisior. refusing a claim unless satisfied beyond reasonable doubt of the negative proposition that there were insufficient grounds for granting the claim or application." (at p.418)

"Aithough the medical reports «ere in conflict, no challenge appears to have been made to the standix:g or expertise of any of the medical experts. In that situarion it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reporcrs favourable to the applicant were wrong." (at p.423)

I am satisfied that the operation of that section does not involve a two-stage process and that it requires thet, in relation to any fact necessary to establish entitlement, the Review Tribunal must be satisfied beyond ceasonable doubt that the fact does not, or did not, exist before it can refuse an application or dismiss an appeal by a claimant "' (at p.424)

Section 107VH imposes on a Repatriation Review Tribunal the obligation of setting aside a decision refusing a claim

"unless it is satisfied, beyond reasonable doubt, that there

were insufficient grounds for granting the claim...

Section 47(2) of the Act imposes a similar obligation on the Repatriation Commission and upon a Repatriation Board.

Murphy J also emphasised that the Act "thus effectively imposes on the Commission an onus of disproof, or proof of a negative, beyond reasonable doubt". (at p.412) His

"A conflict of testimony (expert ov otherwise) does not require that the claim be upheld (any- more than in a criminal trial it would require an acquittal) although often it would have that result. Nevertheless, it is not enough that the Tribunal prefer the evidence (including opinion evidence) which tends to disprove the claim. Even if it rejects the evicence in favour of the claim, the claimant ts entitled to succeed unless the Tribunal is satisfied beyond reasouable doubt that there are insufficient grounds for tbe claim." (at p414)

application to claims made under the Repatriation Act

although the decision of the high Court to uphold the judgment of the Federal Court was, of covrse, related to the facts of

that case. What the judgment of Aickin J does emphasise is that

ac no stage does any onus of prevf lie upon the claimant. A eleimant is entitled to succeed mless the relevant tribunal is satisfied boyond reasonable doubt that a fact necessary to establish entitlement did noc oz does not exist. It follows

that for a tribunal or court ro review the material before it

with a view to determining to what extent that material supperts

the claim is to take a wrong approach and one that must almost

complaint of the applicant against the decision of the

Administrative Appeals Tribunal. Whether that complaint is

for judgment of the Tribunal, its conclusions may be summed up in

L. Stress, war caused or otherwise, did not initiate Mr. Lenneil's cancer.

Stress may, in particular patients with a terminal illness, accelerate death but there was no evidence that any stress produced such an acceleration in the present case.

There had Seen no impairment of Mr. Lennell's immunc mechanisa and uo evidence that he suffered from immuno-deficiency.

There was no evidence showing any relationship between immuno-Geficiency and Mr. Lennell's adenocarcinoma. Even 1f Dr. Harvis's report be regarded as some opinion evidouce

to this effect, his opinion or theory is untenable.

There was no evidence that the site of Mr. Lennell's adenocarcinoma was in an arca of scar or that there was any scarring of his lung.

Mr Lennell's smoking, other than smoking between 1942 and 1945, may well have been a factor in causing his adenocarcinoma.

Mr. Lennell had a smoking habit before anlistment. There was no evidence that that habit was decreased, alrered or prolonged by his war service or that his smoking habit resulted from any occurrence during his service or was attributable to his service. . It was only remotely possible that an unknown factor causing or contributing to the adenocarcinoma was itself caused by or related to war service so as to constitute an occurrence in terms of the Act or that it arose out of or was attributable to war service or would answcr

the description of an accident or was due to a disease or infection that was contracted and would not have been eofitracted but for war service ox for changes in environment consequent upon war service. "We consider any such possibility 1s fanciful or tenuous".

Mr. Lennail experienced good health wnti] the sudden emergence in 1977 of adenocarcinoma, an aggressim tumor, causing his death within a month of admission to hospital. The adenocarcinoma and death.of Mr Lennell and his

period of enlistment and war service were unrelated.

ll. Any "Inenit"" presipitating carcinoma must heve been Leta, than the termination of Mr, Lermmell's service and in no way related to that service.

The Tribunal concluded its reasons with these words "We are satisfied beyond reasonable doubt there is no connection ox relatiouship between the ex-membor's adenocatcinoma or death and the period of his enlisiment or his war service. Any such connection or relacionship could only be dcecribed as fanciful or tenuous.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (227 paragraphs)

Cases Cited (2)