Veterans' Entitlements Act 1986 (Cth) - ss.9(1)(b), 9(1)(e)(ii), 13, 120(4)

Repatriation Commission v. Law [1980] FCA 92; (1980) 31 ALR 140

Holthouse v. Repatriation Commission [1982] FCA 113; (1982) 1 RPD 287

Westgate v. Australian Telecommunications Commission (1987) 17 FCR 235

Favelle Mort Limited v. Murray [1976] HCA 13; (1976) 133 CLR 580

Potts v. The Commonwealth (1971) 18 FLR 128

Goward v. The Commonwealth [1957] HCA 60; (1957) 97 CLR 355

Solicitor for the applicant: Australian Government Solicitor

Solicitors for the respondent: Legal Aid Commission of New

The subject decision of the Administrative Appeals Tribunal be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.

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 ("the Tribunal"), given on 28 September 1988, which set aside a decision of the Repatriation Commission of 19 September 1983 and, in lieu thereof, ordered that there be substituted a determination that the Commonwealth of Australia was liable, pursuant to s.13 of the Veterans' Entitlements Act 1986 (Cth)("the VE Act") to pay to Richard Edward Bendy a pension for incapacity occasioned by the war-caused disease of solar hyperkeratoses and basal cell carcinoma as and from 3 March 1982 and that the matter be remitted to the Repatriation Commission to assess the rate of pension.

2. The question before the Tribunal, which had to be considered on the balance of probabilities in accordance with s.120(4) of the VE Act, was whether Mr Bendy's solar hyperkeratoses, a pre-cancerous skin condition, and his basal cell carcinoma, skin cancer, were, a war-caused disease as defined in s.9(1)of the VE Act, which provides inter alia:-

"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 -

...

(b) the injury suffered, or disease

contracted, by the veteran arose out of,

or was attributable to, any war service

rendered by the veteran;

...

(e) the injury suffered , or disease

contracted, by the veteran -

...

(ii) was suffered or contracted before

the commencement of the period, or

last period, of eligible war service

rendered by the veteran, but not

while the veteran was rendering

eligible war service, and, in the

opinion of the Commission, was

contributed to in a material degree

by, or was aggravated by, any

eligible war service rendered by the

veteran, being service rendered

after the veteran suffered the

injury or contracted the disease,

but not otherwise."

3. The Tribunal dealt with the matter as if the relevant provision was s.9(1)(b). On this appeal, Mr A. Robertson, counsel for the Repatriation Commission, and Mr G. Miller, counsel for Mr Bendy, did not challenge this approach; but I shall hereafter make some observations about it.

4. The principal argument put in this appeal by Mr Robertson was that the Tribunal applied the wrong test in that it considered it sufficient that Mr Bendy's war service made some contribution to his disease, albeit a minor and immaterial one. Mr Robertson submitted that the Tribunal did not apply the de minimis principle.

5. However, the Tribunal in its reasons referred to the decision of Bowen C.J., Brennan & Lockhart JJ. in Repatriation Commission v. Law [1980] FCA 92; (1980) 31 ALR 140 and went on to say:-

"13. At page 151 the Court said: 'It seems

clear that the expression 'attributable

to' in each case involves an element of

causation. The cause need not be the

sole or dominant cause; it is sufficient

to show 'attributability' if the cause is

one of a number of causes provided it is

a contributing cause. Under s 101(1)(b),

it is sufficient to show 'attributability'

if a member's war service is a

contributing cause to the incapacity or

death in respect of which the claim is

made.

...

17. Certainly in discussing the term 'arising

out of' the Full Court did say at page

150 of Law supra:

'....... a suggested relationship which

is fanciful is not sufficient; and a

suggested relationship may be so tenuous

as to preclude its consideration as

answering the description 'arising out

of' and I adopt those remarks in relation

to the phrase 'attributable to'.

However, in discussing the term

'attributable to' the Court referred to

the case of Walsh v Rother District

Council (1978) 1ALL ER 510. At page 514

Donaldson J. said, speaking of the words

'attributable to':

'Suffice it to say that these are plain

English words involving some cause or

connection between the loss of employment

and that to which the loss is said to be

attributable. However, this connection

need not be that of a sole, dominant,

direct or proximate cause and effect. A

contributory cause or connection is quite

sufficient'."

"18. To my mind the evidence is clear that the

sun exposure experienced by the Applicant

in Darwin was a contributory cause to his

skin conditon and that whilst being minor

was not insignificant."

Read fairly, these reasons do not support Mr Robertson's contention. It is clear that the Tribunal considered Mr Bendy's service in Darwin to be a contributory cause which was "not insignificant" and that the Tribunal had in mind that a fanciful contribution was not sufficient and that a relationship could be so tenuous as to preclude its consideration.

6. In Repatriation Commission v. Law [1981] HCA 57; (1981) 147 CLR 635 at p 648, Aickin J., with whom Gibbs C.J., Stephen and Mason JJ. agreed, when considering provisions of the Repatriation Act 1920 (Cth) accepted that it was sufficient if war service was one of a number of causes of a disease provided that it was a contributing cause. I have myself, on occasions, used the term "material contribution" in this context. The adjective "material" is not necessary but its use is familiar. See e.g. Clover, Clayton & Co., Limited v. Hughes (1910) AC 242 per Lord Loreburn at p 247; Hetherington v. Amalgamated Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 317 per Latham C.J. at p 328; Adelaide Stevedoring Co Ltd v. Forst [1940] HCA 45; (1940) 64 CLR 538 per Rich A.C.J. at p 564, Dixon J. at p 567, 568, McTiernan J. at p 571, 572. The expression "contributed in any material degree" was used in the Workers' Compensation Act 1958 (Vict) and is used in s.9(1)(e) of the VE Act and in s.7(3) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term "material" is here used not in the loose sense set out in definition 12 of the Macquarie dictionary, namely, "of substantial import or much consequence" but rather in its legal sense of "pertinent" or "likely to influence".

7. Mr Robertson pointed to the following paragraphs:-

"14. I am aware that the term 'material

contribution' has been used to describe

the degree of attributability. See for

example, Davies J. in Holthouse v

Repatriation Commission 1 Repatriation

Pension Decisions 287 at 288.

...

16. ... Also had the legislature required a

material attributability it could have

said so in plain words. Compare

paragraph 9 (1)(e) of the Veterans'

Entitlements Act 1986 where the words

'contributed to in a material degree' are

specifically used."

It appears to me, nevertheless, that this discussion arose from a misunderstanding by the Tribunal of the term "material contribution" used by me in Holthouse v. Repatriation Commission. I infer from the use of the words "I am aware" in paragraph 14 of the Tribunal's reasoning, from the contrast given in paragraph 15, which I have not set out, to what was said in Holthouse, and from the misprint of "cause or" in place of "causal" in the citation from Walsh v. Rother District Council in paragraph 17, that the Tribunal did not, in fact, look at the reports of Holthouse v. Repatriation Commission and Walsh v. Rother District Council, but was working from an earlier decision of the Administrative Appeals Tribunal which mentioned these authorities. These paragraphs can therefore be read simply as reflecting a misunderstanding of what was intended in Holthouse v. Repatriation Commission.

8. It is of more importance that the Tribunal apparently considered the issue to be whether "the sun exposure experienced by the applicant in Darwin" was a contributory cause of Mr Bendy's skin condition.

9. Mr Bendy, in the course of his service, had moved from Sydney, where he ordinarily lived, to Darwin for a little over two years. The medical practitioners who gave evidence to the Tribunal were agreed that all exposure to ultraviolet radiation, particularly exposure in the early years of life before 30 years of age, caused solar skin damage which was cumulative. Dr E. Lobel gave this evidence inter alia:-

"I feel that three years living in Darwin must

have had some contribution. The ultra violet

radiation in the tropics is very high,

particularly to a fair skinned person."

Dr Adele Green agreed with Dr Lobel in general as to the effect of ultraviolet radiation.

10. In his written report dated 9 March 1988, Dr Lobel referred, at least in part, not to the total sun exposure in Darwin but to the extra contribution to ultraviolet radiation which Mr Bendy had received by going to Darwin. Dr Lobel concluded:-

"I believe that the word contributed is a

correct one. i.e. a period of a little under 2

years in the tropics must have produced some

contribution to his sun-damaged skin which he

would not have achieved had he not have been

sent to the tropics. However, a lifetime in

New South Wales with the usual summer sports

would have been the major contributory

factor.

I believe that the period in the tropics was a

small contributory factor to the degree of

solar skin disease proven in this man when

seen on 3.3.88."

In his oral evidence, Dr Lobel was not asked about the extra contribution which service in Darwin caused but gave answers which seem in general to refer to "the exposure in Darwin".

11. Dr Green, in her report, made a careful analysis of the additional ultraviolet radiation which Mr Bendy would have received by being transferred to Darwin. She reported that, in the wet season, there was little difference in the level of ultraviolet radiation between Darwin and the eastern coast of New South Wales, because of the cloud cover in Darwin, and that it was only in Darwin's dry season that the ultraviolet radiation was appreciably higher. Dr Green examined the clothing worn by Mr Bendy in the Northern Territory, which included a hat, and the nature of his activities both in the Northern Territory and in New South Wales. She concluded:-

"Thus, I would conclude that while war service

could have contributed to the applicant's skin

damage, it is unlikely to have done so to any

substantial degree."

In her oral evidence, Dr Green explained what she saw as the difference in the level of ultraviolet radiation likely to have been received by Mr Bendy in Darwin from that likely to have been received by him had he remained in Sydney. She concluded:-

"I would not like to say that those years (in

Darwin) would have been a material

contribution. I am not denying at all that it

contributed."

12. Notwithstanding this evidence, the Tribunal thought the case to be a clear one and thus did not discuss the extent or effect of the incremental damage. In paragraph 8, the Tribunal expressly referred to Dr Lobel's evidence that "the two years in Darwin must have had some contribution" and, in paragraph 10, to Dr Green's evidence that "all we can say is that we cannot quantify it but every day you walk into the sun there is some contribution." Paragraph 18, which is the crucial paragraph, referred merely to "the sun exposure ... in Darwin". Accordingly, the Tribunal did not look to see what was the effect of the additional exposure to ultraviolet radiation which resulted from Mr Bendy's war service but merely looked to see what was the effect of the total exposure which he had received in Darwin. The Tribunal therefore did not address itself to the question which, at least in Dr Green's view, was a difficult one to answer, because the incremental damage suffered in Darwin was small and because Mr Bendy would have developed hyperkeratoses and carcinoma whether or not he had gone to Darwin.

13. Mr Miller, counsel for Mr Bendy, conceded this reading of the Tribunal's reasons for decision but submitted that a perusal of the transcript would show that the Tribunal had been thinking along the lines of the incremental rather than the total sun exposure received by Mr Bendy in Darwin. But, s.43 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal shall state the reasons for its decision. The Tribunal has done so and its reasons are recorded in writing. I consider this appeal on the basis of those reasons for I take those reasons to comply with ss.43(2) and (2B) of the Administrative Appeals Tribunal Act.

14. In its approach, the Tribunal was in error. Exposure to ultraviolet radiation is not in general a matter having a causal connection with war service. The ultraviolet radiation which Mr Bendy received came from his exposure to sunlight which was a matter of everyday experience. Exposure to sunlight is, in itself, a natural feature of life and, though all servicemen suffer some exposure to sunlight during their service, that exposure is not a matter which, in the ordinary case, is attributable to war service.

15. If a veteran develops a disease as a result of his war service or if some event involved in the service contributes causally to the inception or the development of the disease, it is not necessary to show that the factor involved was of a special character or involved any special risk. I have discussed this point in Westgate v. Australian Telecommunications Commission (1987) 17 FCR 235 and I need not repeat what was there said. But there are some cases where a disease has been brought about by a factor which can be connected causally to war service only if the war service placed the veteran in a position of special risk as to its occurrence. Thus, in Favelle Mort Limited v. Murray [1976] HCA 13; (1976) 133 CLR 580, the Court held that an engineer, who had been sent by his employer to a foreign country to work and who was there attacked by a virus and developed meningo-encephalitis, was entitled to workers' compensation because his transfer to the foreign country had brought about a special risk of encountering that disease. At p 585, Barwick C.J. referred to the judgments in Thom v. Sinclair (1917) AC 127 and said, inter alia:-

"Lord Shaw thought that if the nature,

condition, obligations or incidents of the

employment brought the workman within a zone

of special danger, the words of the statute

'arising out of the employment' would be

satisfied ((1917) AC, at p 142).

Here, the area of special danger in the sense

used by Lord Shaw was the place or area where

the virus in fact entered the respondent's

system. As I have said, it is nothing to the

point that many others, members of the public,

were there exposed to the risk of viral attack. ..."

At pp 598-9, Mason J., with whom Stephen J. agreed, said:-

"The issue on the facts as found is: Did the

employment contribute to the injury? In my

opinion an affirmative answer must be returned

to this question. In the circumstances of

this case which present some distinctive

features I am of the opinion that had it not

been for the employment then on the

probabilities the respondent would not have

contracted the disease. The employment

exposed him to the risk of contracting the

disease, a disease so rare in its incidence

that it is improbable that the respondent

would have contracted it had he remained in

Sydney. ..."

See also Potts v. The Commonwealth (1971) 18 FLR 128 where Judge O'Shea held that an airman, who served in Malaysia and there contracted encephalitis caused by a mosquito-borne virus endemic in Southeast Asia, had suffered personal injury by accident which had arisen out of his employment. After examining the authorities, his Honour said, at 132:-

"In my view the authorities show that an injury

arises out of the employment, if pursuant to

his contract of employment, an employee is

required to be in a particular place, and that

exposes him to a risk, which is additional to

those which in normal circumstances he might

be expected to encounter, and the exposure to

that risk results in the injury."

16. This principle was recognised in Goward v. The Commonwealth [1957] HCA 60; (1957) 97 CLR 355 wherein it was held that compensation was not payable in the circumstance where an employee had been killed by a train on a railway line near to which he was camped, as the placement of the camp next to the railway line did not create a special risk. At p 364, Dixon C.J., Williams, Webb and Kitto JJ. referred to the statement of Lord Haldane in Upton v. Great Central Railway Co (1924) AC 302 at pp 306, 308 that it will suffice if the accident arises out of circumstances the employee has to encounter because it is within the scope of his employment to do so. Their Honours went on to say:-

"The question is one of cause, but it is not

enough to point to antecedent situations in

the absence of which there could not have been

an accident of the description involved. It

is correct no doubt that if the camp had not

been near a railway and if the deceased had

not been living in the camp the accident would

not have happened. But these are no more than

antecedent conditions which are preliminary

to, but hardly operative causes of, the

accident.

No special risk attached to the employment

simply because the camp was near the railway."

17. There was evidence before the Tribunal tending to establish that Mr Bendy's transfer to Darwin for two years involved him in a special risk. Dr Lobel said that in Australia solar keratoses and sun cancers are very common but Victoria and Tasmania have a relatively lower incidence thereof while North Queensland has a higher incidence given the same skin type. Dr Green was of the opinion that the incidence of the disease was related to distance from the equator. Both doctors agreed that Mr Bendy would have received greater exposure to the sun wearing, as he did, shorts and a short sleeved shirt in Darwin, whereas in civilian life in Sydney he tended to wear a suit.

18. Nevertheless, the Tribunal did not relate Mr Bendy's skin damage to that risk. The Tribunal considered only the contribution made by Mr Bendy's total exposure to the sun during his period in Darwin.

19. For this reason alone, the Tribunal's decision must be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and decided again.

20. As the matter is to be remitted to the Administrative Appeals Tribunal for rehearing, I should mention one point which was not a ground of appeal and which was not the subject of submissions by counsel but which will need to be considered by the Administrative Appeals Tribunal.

21. Section 9(1) of the VE Act has drawn a clear distinction between a disease, with which s.9(1)(b) concerns itself, and an aggravation thereof, with which s.9(1)(e) deals. Section 5(1) defines "disease" in these terms:-

"'disease' includes any physical or mental

ailment, disorder, defect or morbid condition,

whether of sudden onset or gradual

development, and the recurrence of such an

ailment, disorder, defect or morbid condition,

but does not include the aggravation of such

an ailment, disorder, defect or morbid

condition;"

22. Thus, in order to determine whether s.9(1)(b) or 9(1)(e) applies in Mr Bendy's case, it will be necessary to determine whether the skin damage which Mr Bendy suffered in Darwin aggravated a pre-existing disease, or whether that skin damage pre-dated the contraction of the disease. The medical evidence did not expressly deal with this point.

23. Both Dr Lobel and Dr Green gave evidence that probably Mr Bendy would have developed skin cancers whether or not he had gone to Darwin. In his written report, Dr Lobel said that the period in the tropics was "a small contributory factor to the degree of solar skin disease". In his oral evidence, he said that the effect of the exposure in Darwin was probably to "bring them on a little earlier, and possibly more often." Dr Green thought that the exposure resulting from war service was small and she could not say that it was material. Both doctors were agreed that the major cause of Mr Bendy's condition was the exposure he received before going to Darwin.

24. In the light of this evidence, it is not clear that Mr Bendy's war service was a contributory cause of the disease itself.

25. Events may be a contributing cause of an injury or incident if they are events in the absence of which the injury or evidence would not have occurred, or would not have occurred as and when it did. In Clover, Clayton & Co., Limited v. Hughes, cited above, where the question was whether the death of a worker had resulted from an accident arising out of his employment, Lord Loreburn said at p 245:-

"It seems to me enough if it appears that the

employment is one of the contributing causes

without which the accident which actually

happened would not have happened, and if the

accident is one of the contributing causes

without which the injury which actually

followed would not have followed."

"In each case the arbitrator ought to consider

whether in substance, as far as he can judge

on such a matter, the accident came from the

disease alone, so that whatever the man had

been doing it would probably have come all the

same, or whether the employment contributed to

it. In other words, did he die from the

disease alone or from the disease and

employment taken together, looking at it

broadly? Looking at it broadly, I say, and

free from over-nice conjecture, was it the

disease that did it, or did the work he was

doing help in any material degree?"

More recently, in Favelle, Mort Ltd v. Murray, cited above, Mason J. referred to the same concept when he said at p 599:-

" ... I am of the opinion that had it not been

for the employment then on the probabilities

the respondent would not have contracted the disease."

26. Of course, the causes of a disease may involve complexities not present in the causes of an injury or incident, when parameters of time and location may provide guidance. In examining the causes of a disease, it would be wrong to consider solely factors of which it can be said that without them the disease would not have developed for that is not the test. An issue of contributory cause should be approached in a practical, commonsense way. Nevertheless, if, as in the present case, it could not be said of the war service that, without it, the disease would not have developed, then it may be difficult to conclude that the war service was a contributing cause thereof. Indeed, if the disease had already been contracted prior to Mr Bendy's war service, then war service would not seem to have been a contributing cause.

27. If the Administrative Appeals Tribunal were to form a view that Mr Bendy's disease did not arise out of his war service and was not attributable thereto, the Administrative Appeals Tribunal would then have to consider, in terms of s.9(1)(e), when the disease was contracted and whether the disease was "contributed to in a material degree by, or was aggravated by" Mr Bendy's war service.

28. I do not wish to suggest that such a consideration would raise entirely different issues from those I have discussed generally in the course of these reasons. But it is worth pointing out that the consideration would then be under a statutory provision which specifies contribution "in a material degree". It would also be necessary to consider whether any aggravation due to war service was a material or relevant aggravation. In examining this question, the Tribunal would have to consider the facts of the case in the light of the scope and purpose of the s.9(1)(e) and its relationship to provisions such as s.9(1)(b) and the tests applicable thereto. Certainly, an aggravation which was de minimis would not suffice.

29. In concluding I must emphasise that these additional observations, which are outside the grounds of appeal, have been made, not with a view to directing the Tribunal in any way, but simply to assist it.

30. As I have mentioned, the decision under appeal will be set aside and the matter will be remitted to the Administrative Appeals Tribunal to be heard and decided again, either with or without the hearing of further evidence. As the Repatriation Commission does not seek costs in this event, each party should abide its or his own costs.