Repatriation Commission v Swinden

Federal Court of Australia|2001-08-20|Before: Ryan J

REASONS FOR JUDGMENT 1 The applicant, the Repatriation Commission ("the Commission"), appeals pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision by the Administrative Appeals Tribunal ("the Tribunal") to the effect that it was not satisfied beyond a reasonable doubt that the respondent's incapacity caused by diverticular disease of the colon ("DDC") did not arise from a war-caused injury. In consequence, the Tribunal assessed the pension payable to Mr Swinden at 100% of the General Rate.

Statement of Principles ("SoP") 2 It is useful at the outset to set out a brief description of the genesis and effect of the "Statement of Principles" ("SoP"). The Repatriation Medical Authority ("the Authority"), created by s 196 of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), from time to time issues guidelines or minimal criteria which have to be satisfied for a disease or injury to be found to have been war-caused or related. Section 196B of the Act describes the relevant functions of the Authority as follows; "(1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or (b) peacekeeping service rendered by members of Peacekeeping Forces; or (c) hazardous service rendered by members of the Forces; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. . . ." 3 The Authority has determined the following SoP in respect of DDC: "DIVERTICULAR DISEASE OF THE COLON ICD CODE: 562.1 Veterans' Entitlements Act 1986 subsection 196B(2) 1. Being of the view that there is sound medical-scientific evidence that indicates that diverticular disease of the colon and death from diverticular disease of the colon can be related to operational service rendered by veterans . . . the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diverticular disease of the colon or death from diverticular disease of the colon with the circumstances of that service, are: (a) suffering from scleroderma before the clinical onset of diverticular disease of the colon; or (b) changing to a diet lower in dietary fibre more than three months before the clinical worsening of diverticular disease of the colon; or (c) inability to obtain appropriate clinical management for diverticular disease of the colon. 2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (c) must be related to any service rendered by a person. 3. The factors set out in paragraphs 1(b) and (c) apply only where: (a) the person's diverticular disease of the colon was contracted prior to a period, or part of a period, of service to which the factor is related; and (b) the relationship suggested between the diverticular disease of the colon and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act. 4. For the purposes of this Statement of Principles: "diverticular disease of the colon" means the clinical consequences of a herniation or sac-like protusion of the colonic mucosa and the submucosa through the muscular coat of the colon, attracting ICD code 562.1; . . ." 4 Although the SoP acknowledges that there are several ways in which this disease can develop, it is common ground that the relevant inquiry in respect of the respondent was whether he had changed to a diet lower in dietary fibre as contemplated by par 1(b) of the SoP.

Factual Background 5 Leonard Swinden was born on 16 July 1924. In the years of the Great Depression which preceded his entry into the Army, his diet consisted of very little fruit but plenty of white bread, suet puddings and dumplings. The meat was usually mutton, not lamb. As well, he ate rice pudding, bread and butter pudding, and a lot of stews. "Weeties" was his staple breakfast cereal, bran-based cereals being then unavailable. 6 From 31 August 1942 until 30 July 1946, Mr Swinden served at Morotai and Tarakan as a member of the Australian Army. In the course of the Tribunal hearing, he testified that during this time he ate "lots of stews, custards, stewed apple and things of that nature, the occasional roast, which would be lamb or mutton". Breakfast often consisted of powdered scrambled eggs and sometimes porridge. He added that he consumed a great deal of liver at one stage. Also, while in Borneo, he ate toasted white bread, meat and vegetable rations reconstituted in hot water, and probably wheat cereal. However, there were no fresh vegetables or fruit. During training exercises and bivouacs, he ate bully beef. 7 The respondent suffered from a significant gastric condition for a short period of his army service in Tarakan. He was hospitalised for about one week. At the time, he was provisionally diagnosed as suffering from hookworm, but he stated that he thought that the tests for that condition had come back negative. Since that time, Mr Swinden has had intermittent bouts of diarrhoea ranging in frequency from once or twice a week to once a month. It is not clear whether there is a relationship between his war-time condition and the subsequent diarrhoea or whether the latter is attributable to an ailment like DDC of later development. 8 After his discharge from the Army in 1946, on Mr Swinden's account, he resumed his pre-war diet, although he claimed to have generally eaten better than before. In addition, the respondent said that he had more fresh fruit and vegetables than during his Army service. He also stated that "high fibre wasn't regarded as being very necessary in those days". It is noteworthy that until the 1960s, the preferred treatment for DDC was to ordain a reduction, rather than an increase, in the intake of dietary fibre. 9 Mr Swinden had a history of gastro-intestinal problems after the War. In addition to the recurrent bouts of diarrhoea noted above, he had a bowel obstruction in 1974 which required surgery. That was likely to have been caused by a drug, Practalol, that Mr Swinden was taking at the time for his heart condition. In addition, over a long period before 1987, the respondent had "intermittent sort of gastric problems" in conjunction with discomfort in the abdomen. Immediately before 1987, the respondent experienced an increase in pain on the left side of his abdomen and in the region of his kidneys. In 1987, he suffered his first "severe attack" of DDC, as a result of which he underwent a course of antibiotics and since then he has increased the fibre in his diet. He is not presently suffering from any significant effects of DDC.

Procedural Background and the Tribunal Decision 10 Mr Swinden, believing that his DDC and other medical problems had been either caused or aggravated by his military service, filed a Formal Claim for Disability Pension with the Commonwealth on 17 May 1996. The delegate of the Repatriation Commission, on 14 August 1996, refused the respondent's claim in respect of DDC on the ground that it was not "war-caused". The Veterans' Review Board affirmed that refusal on 20 April 1998. The respondent appealed to the Tribunal constituted by Commodore Gibbs (Senior Member), and Mr Argent and Dr Fricker (Members). On 12 October 1999, the Tribunal reversed the decisions of the delegate to the Commission and the Veterans' Review Board. 11 After a review of the law and evidence, the Tribunal analysed the respondent's circumstances by reference to the guidelines laid down by a Full Court of this Court in Repatriation Commission v. Deledio (1998) 83 FCR 82. First, the Tribunal concluded, at [38], that all of the evidence before it "points to a hypothesis connecting Mr Swinden's diverticular disease of the colon with the circumstances of the particular service rendered by him". It listed, at [39], the following matters which it regarded as supporting this conclusion; "(a) That Mr Swinden suffers from diverticular disease of the colon; (b) That upon joining the Army in August 1942 Mr Swinden changed to a diet lower in dietary fibre, being a diet which in varying degrees persisted throughout his military career; (c) That a recognised cause of diverticular disease is a low fibre diet; (d) That in about September 1945 Mr Swinden was admitted to an Army hospital with an episode of abdominal pain and diarrhoea; (e) That while he was in hospital Mr Swinden was investigated for possible causes such as hookworm, but no cause for his symptoms was found; (f) That since his admission to hospital in 1945 Mr Swinden has had a tendency to attacks of diarrhoea, being a symptom of diverticulitis, but which he treats by observing a high fibre diet; (g) That very often symptoms of diverticular disease develop many years after the onset of the condition. (h) That Mr Swinden was diagnosed with diverticular disease of the colon in 1987." 12 After noting that an SoP existed for DDC the Tribunal considered that the hypothesis raised by the facts which it had recounted was reasonable and met the minimum standards of the SoP. In other words, it found that Mr Swinden had a diet unacceptably low in fibre for more than three months before the clinical worsening of DDC. 13 Next the Tribunal concluded that it was not satisfied beyond reasonable doubt that the respondent's incapacity did not arise from a war-caused injury. After reciting that it was undisputed that the respondent had the disease, the Tribunal noted that, despite the respondent's limited recollections regarding his diet during the relevant times, it was comfortably ableto conclude that his intake of dietary fibre had decreased after he entered the Army. Additionally, the Tribunal opined at [48] that Mr Swinden's 1945 hospitalisation for diarrhoea "may have been related to the development of diverticular disease". 14 On the basis of the analysis which I have just recounted, the Tribunal found that Mr Swinden was entitled to a 100% pension as a result of the incapacity caused by DDC. The liability of the Commonwealth was dated from 17 February 1996.

Relevant statutory provisions 15 Section 120 of the Act provides, so far as is relevant; (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. Note: This subsection is affected by section 120A. ... (3) In applying subsection (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 death 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. Note: This subsection is affected by section 120A." 16 Section 120A(3) stipulates that; "For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) or (11); or (b) a determination of the Commission under subsection 180A(2); that upholds the hypothesis." 17 The circumstances in which an SoP must be brought into existence have been described earlier in these reasons. It will be recalled that cl 3(b) of the SoP for DDC conditions its application on the existence of a relationship between the DDC and the particular service of a person being that set out in, amongst others, s 9(1)(e) of the Act. That provision is in the following terms; "War-caused injuries or diseases (1) 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: . . . (e) the injury suffered, or disease contracted, by the veteran: (i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or (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, the injury or disease 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 that injury or contracted that disease; but not otherwise."

A. Repatriation Commission 18 In its written submissions the Commission identified five grounds of appeal, but in the final analysis has pressed only four: 1) The hypothesis, which the AAT accepted in respect of Mr Swinden's condition, was not consistent with the SoP for DDC; 2) The AAT failed to consider essential elements of the SoP, being those set out or indicated in paragraphs 3(a) or 3(b) governed by the time at which the respondent contracted the disease; 3) There was no material before the AAT justifying the hypothesis; and 4) The AAT failed to provide reasons for findings it made, or should have made, on material questions of fact. 19 The Commission contended that the hypothesis identified by the Tribunal did not entail that Mr Swinden had contracted DDC before he entered the Army and switched to a diet with less fibre. Further, the hypothesis accepted by the Tribunal was not premised on the proposition that the respondent's time in the Army had materially contributed to or aggravated the DDC. Therefore, the hypothesis was not consistent with the SoP and consequently was not reasonable. 20 The Commission also claimed that the Tribunal had failed give its reasons for its findings on material issues. In particular, it instanced the Tribunal's omission to identify when Mr Swinden contracted the disease, and to find whether the change in diet had contributed to the DDC in a material degree or aggravated the DDC, and whether there had been a "clinical worsening" of the disease more than three months after the change to a low-fibre diet. In support of this contention, the applicant relied on an obiter dictum of Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, to the effect that a person aggrieved by an adverse decision should be able to identify from the statement of reasons why he or she lost the case.

B. The Respondent 21 Counsel for the respondent contended that the evidence before the Tribunal was sufficient to support the finding which it made. Moreover, that finding could be made without the Tribunal's referring specifically to cl 3 of the SoP. In addition, it was argued, a benevolent construction should be accorded to remedial or beneficial legislation like that in issue in this case. Further, the Tribunal had indicated its consciousness of gaps in the evidence when it referred to s 119 of the Act which exhorts the Tribunal to "act according to substantial justice" and "to take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance". Finally, Counsel for the respondent in his written submission disputed the suggestion that the Tribunal did not deliver adequate and sufficient reasons for its decision, but referred to no authority as vindicating the way in which those reasons were framed.

Grounds of appeal 22 An analysis of the competing submissions against the background provided by the Tribunal's decision reveals that three issues have to be resolved.

(1) Whether there was material before the Tribunal justifying the hypothesis? 23 Despite the Commission's contention that the Tribunal did not have material capable of raising the hypothesis which it identified, it appears that there were sufficient facts to support the Tribunal's findings. The Tribunal's hypothesis was that there was a "connection" between Mr Swinden's DDC and his military service. It then referred to evidence that established that Mr Swinden suffers from the disease, that his intake of dietary fibre had been reduced during his Army service, and that such a reduction is a recognised cause of DDC. Further, the various incidents of diarrhoea that Mr Swinden suffered over the years could have been symptomatic of an onset of DDC which was fully developed by 1987. In short, the initial material raised a hypothetical connection between the respondent's DDC and his war service. The Tribunal's finding was open to it and, accordingly, this issue cannot avail the Commission.

(2) Was the hypothesis consistent with the SoP? 24 A fair reading of the Tribunal's decision indicates that it did not test the hypothesis against the whole SoP for DDC. Clause 3 of the SoP, which incorporates by reference other parts of the Act concerned with aggravation of pre-service conditions, makes it clear that the Authority intended that DDC should only be capable of being war-related if contracted before, not during, a period of eligible war service. The Tribunal did not make a finding as to whether or not Mr Swinden had contracted the disease before joining the Army. There was evidence to support such a finding, including that which suggested that Mr Swinden's pre-service diet had been undesirably low in fibre; and the 1945 episodes of diarrhoea, which may have been symptomatic of an onset of DDC which ante-dated his war service. The fact that there was evidence to support the requisite finding does not permit the Court to infer that it was made. Nor does it relieve the Tribunal from expressly making the finding and, if affirmative, pointing to evidence on which it relied as establishing that element of the SoP. In Connors v Repatriation Commission [2000] FCA 783 at [18], Kenny J said that "[t]he effect of s 120(A)(3) . . . is that a hypothesis must be supported by evidence pointing to each individual element in an SoP for the hypothesis to be reasonable." If there was evidence which pointed to the elements indicating that Mr Swinden might have contracted DDC before his war service, it was not identified as such by the Tribunal in its decision. 25 It might be thought anomalous that Mr Swinden could have contracted DDC because of a low-fibre diet in the Army and not be eligible for a pension, and yet qualify for a pension if he contracted it before the War and only aggravated it during the period of eligible service. Dr Marshall testified before the Tribunal that the SoP was too narrow in that regard. However, neither this Court nor the Tribunal can substitute its own formulation of the appropriate elements of the relevant hypothesis for that contained in an SoP. 26 In my view, the failure of the Tribunal, which I have just identified, to make an essential finding of fact indicates that, in that respect, it failed to ask itself a necessary question and so committed an error of law.

(3) Whether the Tribunal failed to provide reasons for findings of material fact which it made or should have made. 27 This matter has already been considered in relation to the second issue discussed above. As there explained, the Tribunal failed to make a finding of material fact as to whether Mr Swinden contracted DDC before his Army service. Since there was no express acknowledgment of the failure to make that finding, it is not surprising that no reason for it has been set forth. Since the matter must return to the Tribunal for the requisite finding to be made, it can be presumed that reasons for making it, one way or the other, will be provided. 28 The Commission also contended that inadequate reasons were given for the Tribunal's conclusion that the respondent's war-time change in diet contributed in a material degree to, or aggravated, the DDC. It also argued that the Tribunal failed to address the "clinical worsening" issue. Neither of these criticisms is fully borne out by an examination of the Tribunal's reasons. The Tribunal directly addressed the issue of clinical worsening by noting the respondent's long bouts of diarrhoea after 1946 and the eventual diagnosis of DDC in 1987 - all well beyond the minimum period of three months stipulated in cl 1(b) of the SoP. The Tribunal concluded that the change in diet could have caused the DDC. Such a finding was reasonable and open to the Tribunal. Moreover, even though the Tribunal's reasoning tends to suggest that the respondent's war-time diet was a cause, the failure to make the finding discussed above leaves open the implication that the Tribunal considered that the respondent's war-time diet had materially contributed to, or aggravated, the disease contracted before the commencement of his war service..

Conclusion 29 Because of the single error of law which I have imputed to the Tribunal the appeal will be allowed, the decision of the Tribunal will be set aside and the matter will be remitted to it to be heard and determined according to law. In the circumstances, there will be no order as to the costs of the application to this Court. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Applicant: Australian Government Solicitor

Solicitors for the Respondent: De Marchi & Associates

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