Veterans' Entitlements Act 1986 (Cth) - s.120

Solicitors for the applicant: Vandenberg, Reid, Pappas & MacDonald

Solicitor for the respondent: Australian Government Solicitor

2. Leave be reserved to the parties to apply with respect to costs.

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

This is an appeal from a decision of the Administrative Appeals Tribunal which affirmed a decision of 16 July 1984 rejecting a claim by the veteran, Arthur Leo Hamling, for a pension in respect of incapacity arising from osteoarthritis in each knee and a decision of 20 February 1985 rejecting a like claim for incapacity from lumbar spondylosis.

2. As the appeal is brought under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), it is limited to questions of law. The submissions put on behalf of the veteran proceeded on the general footing that, having regard to the evidence before the Tribunal, the ultimate decision of fact at which the Tribunal arrived was not open to it and was wrong.

3. The veteran's claims fell for consideration under s.120 of the Veterans' Entitlements Act 1986 (Cth) which provided inter alia:-

"(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.

...

(3) In applying sub-section (1) or (2) in

respect of the incapacity of a person

from injury or disease, or in respect of

the death of a person, related to service

rendered by the person, the Commission

shall be satisfied, beyond reasonable

doubt, that there is no sufficient ground

for determining -

(a) that the injury was a war-caused

injury or a defence-caused injury;

(b) that the disease was a war-caused

disease or a defence caused disease;

or

(c) that the disease was war-caused or

defence caused,

as the case may be, if the Commission,

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, disease or death with the

circumstances of the particular service

rendered by the person."

4. The application of these provisions has been considered by Jenkinson, Neaves and Wilcox JJ. in East v. Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517, by Davies, Morling and Foster JJ. in Webb v. Repatriation Commission (1988) 19 FCR 139 and by Hill J. in Gilbert v. Repatriation Commission [1989] FCA 31; (1989) 10 AAR 73. I need not restate the observations made by their Honours.

"Considering all the material before me, I am

not convinced that it raises a reasonable

hypothesis connecting the veteran's

osteoarthritis in the knees with the

circumstances of his service. I rate this as

no more than a possibility but a possibility

does not amount to a reasonable hypothesis.

No reasonable hypothesis of a causal

connection between either the veteran's lumbar

spondylosis or his osteoarthritis in the left

or right knee and the circumstances of his

service having been raised by all the material

before me, I am satisfied, beyond reasonable

doubt, that there is no sufficient ground for

determining that these diseases were

war-caused. The decisions under review are

therefore affirmed."

6. The veteran served in an engineering unit from 9 April 1940 to 28 January 1946. His unit was engaged in building roads, bridges, gun emplacements, barbed wire entanglements and so on. From time to time he handled heavy materials and equipment and from time to time he had falls of a minor nature. In his evidence, he recalled no injuries. Typical of the veteran's evidence were the following remarks:

"What type of falls were they?---Well you just

hit the ground on various occasions if you

went over a steep obstacle and did not land

the right way, like you were in full army

equipment, heavy boots, heavy army boots and

you probably hit the ground, go down on your

knees and that sort of thing, you just knocked

a bit of dust off and get up and carry on

regardless."

...

... if you did jump out and had a bit of a

knee twist or something like that, you just

straightened it out and carried on.

...

... on numerous occasions you would lose your

footing but you just scrambled back up and

pull your weight sort of thing.

...

It is pretty heavy work when you are dealing

with about five-eighths steel cable ..."

The veteran also said that, during his service, he played rugby football on grounds that were very hard. He said that from time to time he would be hurt during those games but "you just went to the RAP tent and got some ... Number 9 pill, and you were right."

"The veteran served in 7 Mechanical Equipment

Company, A.I.F. This was an engineering unit

which built roads, bridges, airstrips,

fortifications, etc. The work involved can

fairly be described as of the heavy labouring

kind. There is nothing in the service record

to show that the veteran suffered any injury

by doing this work and he testified that

during service he did not require attention

for injury beyond going to the R.A.P.".

8. The veteran's disabilities were due to arthritis in his knees and in his spine. The Tribunal said:-

"The best I can make of it is that

osteoarthritis was present in the left knee in

1969 and by 1975, in both knees and that

spondylitic changes were discovered in the

lumbar spine in December, 1983, these being

shown by X-rays in January, 1984 to be only

minor with no spondylolisthesis. This means

that osteoarthritis in the left knee was

diagnosed 23 years after demobilization, that

in the right knee 29 years from that time and

spondylosis 37 years later."

9. The only medical practitioner to give oral evidence before the Tribunal was Dr Lawrence Kohan, an orthopaedic surgeon. A reading of Dr Kohan's evidence suggests that he was an impressive witness, for his evidence was clear, concise and cogent. Dr Kohan said that every person develops osteoarthritis and that the issue was whether or not the veteran's service had accelerated the natural progression of the disease. I take Dr Kohan's approach to encompass the question as to whether the disease was aggravated. Dr Kohan said that activities of the type which the veteran undertook in the course of his service were conditions that a normal healthy and fit man could tolerate and those conditions would not have caused the veteran's osteoarthritis or had any effect on the rate of degeneration in his spine or knees. Dr Kohan said there was no evidence that persons who engaged in a similar type of work, who operated bulldozers or who undertook heavy road labouring suffered any greater incidence of osteoarthritis than those who did not. Dr Kohan said that the minimal degenerative change which the veteran had suffered by 1975 was normal for his then age, 55. Dr Kohan said that constant lifting will not of itself accelerate the predetermined rate of degenerative change and that, although heavy physical work is associated with pain, that is totally different from saying that it is associated with an increased rate of degenerative change. Dr Kohan said that multiple small injuries within the range of the body's functioning mechanism that allows for repair do not effect an acceleration of osteoarthritis and that what is needed to affect the degenerative process is an injury outside the ordinary range. Dr Kohan said that, having regard to the minimal osteoarthritic changes observed in 1975, he would dismiss any idea that they had been caused by something that had happened during war service.

10. The Tribunal was entitled to accept this evidence, as it did.

11. The main ground of challenge to the Tribunal's finding was that Dr Kohan agreed in cross-examination that there was a school of thought that multiple micro-traumata can contribute to the development of osteoarthritis. Dr Kohan said that "... the theory basically says that minor small injuries acting on the body act in a cumulative way as to over a period of time produce the same effect as a single major injury." Dr Kohan said that he himself rejected the theory and that "... there is nothing in the literature to suggest or to show that a whole series of smaller injuries leads to any acceleration of degenerative changes that I am aware of." Dr Kohan agreed that there were respected orthopaedic surgeons amongst those who adopted the theory but said that he himself did not believe that it was reasonable to hypothesise this way.

12. Counsel for the veteran submitted that the Tribunal had misapplied s.120(3) in that, as Dr Kohan had agreed that some reputable orthopaedic surgeons adopted a theory of multiple micro-traumata, such a theory was necessarily a reasonable hypothesis. Counsel submitted that it was not for the Tribunal to choose between one hypothesis and another. Counsel referred to the remarks of Beaumont J. at first instance in Repatriation Commission v. Webb (1987) 76 ALR 131 where his Honour said at p 135:-

"The exercise is not one of balancing or

weighing the respective merits of a range of

professional opinions. Rather, it is a case

of determining whether the particular theory

has a rational foundation."

Counsel submitted that once it was established that the theory of multiple micro-traumata was held by respected orthopaedic surgeons, then such a theory was necessarily a reasonable hypothesis which could be applied to the veteran's case.

13. However, the Tribunal correctly rejected as a reasonable hypothesis an hypothesis that was not referred to in any medical report before the Tribunal, which was rejected by the only medical practitioner to give oral evidence and which was no more than an hypothesis put forward to the Tribunal by counsel.

14. An hypothesis is "a supposition or conjecture put forward to account for known facts", per the Shorter Oxford Dictionary, and a reasonable hypothesis for the purposes of s.120(3) must take into account the known facts of the particular case and relate the veteran's disability to his war service in the light of those facts.

15. The term "reasonable hypothesis" was introduced into the Repatriation legislation after it had been used by Brennan J. in his dissenting judgment in Repatriation Commission v. O'Brien [1985] HCA 10; (1985) 155 CLR 422. At pp 438-9, his Honour referred to the investigation required to be undertaken before that claim was determined. His Honour said:-

"If the facts thus ascertained support a

reasonable hypothesis that the claimant is

entitled to a benefit under the eligibility

provisions of the Act, the Board or the

Commission must determine to grant the claim.

If a reasonable hypothesis of entitlement

arises on some of those facts, the Board or

Commission must determine to grant the claim

unless some other facts dispel the hypothesis

beyond reasonable doubt. If the Board or

Commission is satisfied that no reasonable

hypothesis of entitlement is supported by the

facts or that any such reasonable hypothesis

is dispelled beyond reasonable doubt, the

Board or Commission should reject the claim."

16. In East v. Repatriation Commission, cited above, the Court adopted the view which had been felicitously expressed by a Veterans' Review Board in Stacey's case, quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 5 AAR 253 at pp 254-5, that:-

"For a reasonable hypothesis to be 'raised' by

material before the Board, we think it must

find some support in that material - that is

the material must point to and not merely

leave open a hypothesis as a reasonable

hypothesis."

"A reasonable hypothesis requires more than a

possibility, not fanciful or unreal,

consistent with the known facts. It is an

hypothesis pointed to by the facts, even

though not proved upon the balance of

probabilities."

An Administrative Appeals Tribunal, of which I was a member, made observations to the same effect in Repatriation Commission and Bramston (1987) 12 ALD 53. The Tribunal said at p 59:-

"In our opinion, the requirement for a

reasonable hypothesis is a requirement that

there be a reasonable theory as to a

connection, not unreal or fanciful between the

claimants' disability and war service. What

is reasonable must be judged in the light of

the circumstances of each case."

17. Thus, although an hypothesis is merely a theory or proposition and is not required to be proved, it must be "supported by the facts", per Brennan J. in O'Brien's case, "pointed to by the facts", per the Court in East's case or "judged in the light of the circumstances of (the) case", per the Tribunal in Re Bramston. In applying this principle, the Tribunal in Re Bramston rejected the evidence of Dr P.N.J. Ironside, in part because, although Dr Ironside had put forward a theory connecting the development of an haemangioma with herbicides, he had not given attention to the particular facts of Mr Bramston's case. The Tribunal said at p 63:-

"Furthermore, before expressing his view as to

'reasonable to expect' and 'reasonable

possibility', Dr Ironside appears to have

given no attention to the particular

circumstances of Mr Bramston's case. In other

words, he did not approach the matter as a

clinician would do."

18. In the present case, it was not sufficient for counsel appearing before the Tribunal to establish that there was a general theory held by some reputable orthopaedic surgeons as to the effect of multiple micro-traumata or small injuries upon osteoarthritis. The existence of such a theory would not of itself establish a reasonable hypothesis in the particular circumstances of the veteran's case. It was necessary that an appropriately qualified expert put forward a supposition which, taking into account the nature of osteoarthritis and the particular circumstances of the veteran's case, suggested a causal link between his disabilities and multiple micro-traumata suffered during his war service.

19. In the absence of such evidence, the Tribunal properly rejected the contention that multiple micro-traumata during war service was reasonably proposed as a contributing factor to the veteran's osteoarthritis.

20. Other medical evidence before the Tribunal favoured the veteran's case but was not accepted by the Tribunal. Dr David Bornstein reported in writing that:-

"I suppose it is possible that damage did occur

to the superficial layers of cartilage forming

the joint during the course of his war service

and that these changes in fact did not limit

him for protracted periods of time until

ultimately the patient developed progressive

osteoarthritis. There is, therefore, the

outside chance that his back and knee problems

did originate during the war ..."

This opinion simply expressed a possibility or "outside chance". However, it did not provide "more than a possibility ... consistent with the known facts" to use the words of the Court in East's case. To say that there may have been damage during war years is to say no more than that there is a possibility for which there is no evidence in the circumstances of the particular case.

21. Dr D.G. Seaton provided a more positive report for the veteran. He said:

"... there is no doubt that this man did hard

active service for a period of four years and

would, to a certain degree, have initiated the

arthritic changes due to wear and tear during

his Service period ... In that time, some

wear would have occurred from the heavy

labouring work that he did on Service.

Whether this is significant in regard to the

injuries and wear and tear that he had out of

service, is something which has to be

considered. My belief is that it is significant."

This report provided an hypothesis relating the development of the veteran's osteoarthritis to his "hard active service" and "heavy labouring work". Had Dr Seaton's report been the only medical evidence before the Tribunal, the Tribunal might have been entitled to find in favour of the veteran. But Dr Seaton was not called to give oral evidence before the Tribunal and his report did not explain how the veteran's work during his service initiated, aggravated or accelerated the osteoarthritis. Dr Seaton did not say, for example, that the veteran's osteoarthritis had developed at an unusually early age or that it was known that servicemen had a greater than usual incidence of osteo-arthritis or that persons working on the roads or in the construction industry or the like were known to have a greater incidence of osteoarthritis than others. Thus, Dr Seaton reported what his view was but did not explain the basis for it.

22. In these circumstances, the Tribunal was entitled to prefer the evidence of Dr Kohan and to find that Dr Seaton's report did not provide a reasonable hypothesis to attribute the veteran's disability to his war service. Indeed, by the end of Dr Kohan's detailed evidence, Dr Seaton's opinion could have had little more weight than an unsupported allegation. It must be remembered that both parties are entitled to call oral evidence before the Administrative Appeals Tribunal and that, if party one does and the other does not, the Tribunal, which acts on the basis of the material before it, is entitled to prefer oral evidence which has been the subject of cross-examination to a brief written report which has not been supported in the witness box.

23. In these circumstances, the challenge to the Tribunal's decision must fail. The application will be dismissed. I shall reserve leave to the parties to apply with respect to costs.