Repatriation Commission v Towns

issue 8 The issue before the AAT was whether the veteran's death was war-caused. The widow's case was that the veteran's death was a "sudden unexplained death", and as such, attracted the Statement of Principles ("SoP") determined by the Repatriation Medical Authority ("RMA"), concerning sudden unexplained death, No 99 of 1996, as amended by No 185 of 1996 and No 18 of 2002 ("SoP No 99"). In the alternative, the widow argued that if SoP No 99 did not apply to the circumstances of the veteran's death, regard must be had to s 120(3) of the Act and to the long line of court decisions controlling the manner in which, and the principles by which, a decision should be made as to whether a death was war-caused.

Legislation 9 The principal relevant sections of the Act for present purposes are ss 120 and 120A. These sections concern the standard of proof required to establish that injury, disease or death is war-caused and they read as follows: "s 120 Standard of Proof (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. (2) Where a claim under Part IV: (a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or (b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member; the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-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 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 (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. Note: This subsection is affected by section 120A. (5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that: (a) an injury suffered by a person is a war-caused injury or a defence-caused injury; (b) a disease contracted by a person is a war-caused disease or a defence-caused disease; (c) the death of a person is war-caused or defence-caused; or (d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act. (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application. (7) In this section: (b) a reference to hazardous service shall be read as a reference to service in the Defence Force of a kind determined by the Minister for Defence, by instrument in writing, to be hazardous service for the purposes of this section." 10 Section 120A which came into effect after June 1994 relevantly reads as follows: "120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles (1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. Note 1: Subsection 120(1), (2) and (3) are relevant to these claims. … (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority: (a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or (b) has declared that it does nor propose to make such a Statement of Principles. (3) 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. Note: See subsection (4) about the application of this subsection. (4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person; as the case may be." 11 The RMA is assigned the function of determining SoPs in respect of kinds of injury, disease or death pursuant to s 196B of the Act. These provisions came into effect from 30 June 1994. The relevant parts of that section read as follows: "196B - Functions of Authority (1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statements 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) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to: (a) eligible war service (other than operational service) rendered by veterans; or (b) defence service (other than 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: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service. …"

SOP No 99 as amended 12 The SoP said to be relevant on the present application is SoP No 99, which reads: "Kind of injury, disease or death 2. (a) This Statement of Principles is about sudden unexplained death. (b) For the purposes of this Statement of Principles, 'sudden unexplained death' means non-traumatic death which occurs unexpectedly within 24 hours of first onset of symptoms or signs in the absence of a disease or illness which could account for the death at that time, attracting ICD code 798.1 or 798.2. … Factors that must be related to service 4. The factors set out in at least one of the paragraphs 5(b) to 5(m) in clause 5 must be related to any relevant service rendered by the person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting sudden unexplained death with the circumstances of a person's relevant service are: (a) undergoing relevant service at the time of sudden unexplained death; or (b) experiencing at least one severe psychosocial stressor within the 24 hours immediately before sudden unexplained death; or (c) undergoing strenuous physical activity within the 24 hours immediately before sudden unexplained death; or (d) suffering a blow to the chest within the 12 hours immediately before sudden unexplained death; or (e) being morbidly obese at the time of sudden unexplained death; or (f) having a blood alcohol content of at least 0.15 percent at the time of sudden unexplained death; or (g) suffering from diabetes mellitus at the time of sudden unexplained death; or (h) suffering from hypertension at the time of sudden unexplained death; or (j) being treated with non potassium-sparing diuretics within the fourteen days immediately before sudden unexplained death; or (k) suffering from epilepsy at the time of sudden unexplained death; or (m) using cocaine within the 24 hours immediately before sudden unexplained death. … 'severe psychosocial stressor' means an identifiable occurrence that evokes feelings of substantial anxiety in an individual or which is perceived as stressful, for example, being shot at, experiencing a loss such as divorce, separation, severe illness or injury, assault, legal problems, loss of employment, major financial problems, death or serious injury in a close friend or relative; …" (Emphasis added)

evidence 13 At the hearing before the AAT, evidence was led from Dr Graham Altman, a consultant psychiatrist, and also from Dr Thomas Oettle, a pathologist. Both doctors gave evidence at the Coronial Inquiry. There was also a transcript of the Coronial Inquiry into the death of the veteran before the AAT. 14 The evidence is detailed in the decision below and I will not repeat it in full here. Dr Altman's report of 10 March 1997 noted that the veteran suffered from nightmares, recurrent distressing thoughts and flashbacks, and that he had a feeling of detachment from others, was a loner, and had difficulty showing affection. He also suffered from sleep disturbance, had poor concentration, was generally irritable and presented a number of depressive symptoms. The report did not mention the loss of $1.5 million invested in the timber business, and did not discuss the impact of that loss on the veteran. The last interview with the veteran had been on 7 March 1997. Dr Altman noted that the widow had told him that the veteran had informed his daughter that he was going to Sydney to see someone and would be way for one or two nights. The veteran was not heard of again. On 1 October 1998 his body was found near Brooklyn, approximately two months after he had spoken with his daughter and left her home. The widow told Dr Altman that the clothes that the veteran wore were not the clothes he would normally wear to Sydney, that he carried no undergarments, or anything to indicate that he was going to be staying overnight, and that there was no water with him. Dr Altman reported the widow telling him that the veteran had been disinterested in things, introverted and loath to leave the house. She said that her daughter had told her that on one occasion, she had returned home to find the veteran lying on the floor in a foetal position. These circumstances, in the view of Dr Altman, suggested deterioration and increasing depression. Dr Altman was of opinion that the loss of $1.5 million, and the manner in which it was lost, was a severe psychosocial stressor and that it came within Factor 5(b) of SoP No 99. He considered that the veteran's war-related post traumatic stress disorder and depression would have definitely made him more vulnerable to suffering from psycho-social stressors. He considered it to be a reasonable hypothesis that the veteran's war-caused post traumatic stress disorder could have worsened the impact of the psychosocial stressors to the point of causing his sudden unexplained death. This was the hypothesis claimed to be pointed to by the evidence. 15 Dr Altman considered that the traumatic stress disorder and depression normally made a person less likely to get over stressors, and aggravated the impact of stressors. He suggested that, having been depressed for several months, the veteran may have left the train at Brooklyn in a depressed state of mind, in which he wandered off with a lack of care for himself in a strange place. He noted that the body was found in isolated, rugged bushland and that the veteran had been previously observed lying on the floor in a foetal position, and that he did not dress in the usual way. Dr Altman considered that severe depression increases the risk of harm through neglect and lack of care. 16 The Coroner's finding on the probabilities was that there was nothing to indicate that the veteran was clinically depressed, but that he may have been at his "wits' end having tried to pursue some justice and dignity in relation to the money matter for some years." The Coroner raised a possibility that the veteran may have had a heart attack, but stated there was insufficient evidence to make a finding on this. His specific finding was death from natural causes. 17 In his evidence at the Coronial Inquest, Dr Oettle said that during the autopsy there was a trace of Zoloft in the veteran's body, but that this was not unusual or exceptional, and that no person had ever died from using Zoloft. No other drugs were found in the veteran's body. Dr Oettle also stated that it would be difficult to find a naturally occurring substance, since these would decompose in the same way as body tissue. Dr Oettle could not make a definite finding in relation to the veteran's heart, due to the decomposition of internal organs. He also stated that the position in which the deceased was found was consistent with a collapse or fall. He considered that there had been no apparent attempt to hide in a sheltered spot. 18 After outlining the relevant authorities and the above facts, the AAT considered submissions made by the parties. The following paragraphs in the decision are of particular relevance: "33. It is not in dispute that the veteran died, in the bush in rugged terrain, on or about 12 August 1998 and that the cause of his death is unknown. It is also not in dispute that the veteran had war caused PTSD [post traumatic stress disorder] and suffered a serious financial loss in the 1990s. 34. The Tribunal accepts, on the basis of Dr Altman's evidence and the evidence of the Applicant, that the veteran was suffering from depression in the months before he died. 35. SoP No. 99 of 1996 defines 'sudden unexplained death' as: 'non-traumatic death which occurs unexpectedly within 24 hours of first onset of symptoms or signs in the absence of disease or illness which could account for the death at that time, attracting ICD code 798.1 or 798.2' 36. The Coroner found the veteran's death to be non-traumatic but there is no evidence before the Tribunal of the first onset of any identifiable symptoms of any kind within 24 hours before the veteran's death. The SoP therefore can have no application to the circumstances of the veteran's death on any interpretation of the definition in the SoP." 19 The conclusion of the AAT was that: "49. … The exact circumstances of the veteran's death remain unknown but there is material before the Tribunal that points to the veteran having placed himself in a dangerous situation (rugged bushland) with no precautions taken as to his safety (no water, provisions, clothing or notice to others of his whereabouts). The lack of material before the Tribunal as to the exact circumstances of the veteran's death and its direct cause does not, in the Tribunal's view, stand in the way of the reasonableness of the hypothesis put by the Applicant and does not render it fanciful, impossible or incredible although it is theoretical. In the Tribunal's view, the material before it gives rise to the hypothesis." 20 The AAT then went on to consider whether there was evidence establishing beyond reasonable doubt that there was no sufficient ground for determining that the veteran's death was war-caused. It concluded that, given the lack of evidence surrounding the circumstances of the veteran's death, there was no evidence to establish beyond reasonable doubt any fact that disproved the hypothesis. Therefore, it considered that the hypothesis was reasonable, and that the veteran's death was war-caused.

REASONING ON appeal 21 The original Notice of Appeal contained only one ground, namely, an error in law in that the AAT did not have regard to the whole of the material before it. 22 When the matter came on for hearing before me, an amendment was made by consent to the Grounds of Appeal to include an additional ground (b), which reads as follows: "(b) The Tribunal erred in law by failing to determine, on the balance of probabilities, what 'kind of death' the late veteran suffered." 23 In relation to the additional ground, the Commission submits that the AAT erred in the consideration and application of s 120(A). More specifically, it is said that the AAT had a duty under that section to address, consider, and determine the question as to the kind of death met by the veteran. The Commission points to the statements in [33]-[36] of the AAT reasons for decision quoted above and submits that the AAT did not there address and make a determination as to the kind of death met by the person as referred to by s 120A(2) and (4) of the Act. It is said that before a decision can be made as to whether an SoP applies, it is necessary first to determine the kind of death met by the veteran in the present circumstances. It is said that if this task is not undertaken, it is not possible to make a decision as to whether there is an SoP in force in relation to the kind of death met by the veteran. It is said that in the absence of such a determination, the requirements of s 120A(3) and (4) cannot be properly addressed, that they were not addressed as a consequence, and that accordingly, the decision of the AAT should be set aside for failure to comply with this preliminary requirement. 24 In support of this submission, reference was made to the reasons for decision of Selway J in Repatriation Commission v Hancock [2003] FCA 711 ("Hancock"). In that case, his Honour allowed an appeal from a decision of the AAT. After setting out the relevant principles, he said at [11]: "11. The importance of the correct approach is highlighted by the facts of this case. The Tribunal, faced with the evidence of Doctor Betty should have proceeded as follows: (a) First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute. (b) Next, the Tribunal was required to determine on balance of probabilities what 'kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/determinations under s 180A(2) of the Act and any other 'kinds of death' which were applicable to that death. (c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those 'kinds of death'. (d) If only a determination under s 180A(2) is applicable, then the application must fail. (e) If no SoP and no determination is applicable at all or to a particular 'kind of death' then the methodology in Byrnes is applicable in relation to that." (Emphasis added) 25 His Honour went on to say: "16. In this case the Tribunal did not determine the 'kind of death' on balance of probabilities. It did not determine, on balance of probabilities, whether a SoP was applicable. That question necessarily preceded any analysis under s 120(3) of the Act. 17. The failure of the Tribunal to determine the 'kind of death' on balance of probabilities was an error of law. Consequently, the appeal will be allowed, the decision of the Tribunal will be set aside, and the matter will be remitted to the Tribunal for re-hearing in accordance with law." 26 The judgment of Selway J in Hancock is distinguishable from the present circumstances because in that case there were two SoPs which could have applied. One in respect of arthritis and one for cancer of the small colon. It was common ground that if the kind of death was only cancer of the small colon, the war service was not a cause within the terms of the SoP. On the other hand, if the kind of death was arthritis of the knees, then war service was a cause. In the present case, because of the unknown peculiar circumstances in which the veteran died, it is not possible to say that any SoP could be applicable to the circumstances. The principal SoP was excluded by its terms. The other SoP relating to suicide was, in the view of the AAT, precluded as a consequence of the findings of the Coronial Inquest. Accordingly, this is not a case where the AAT was required to, or failed to make, a finding as to the kind of death. In the view of the AAT, it was simply not possible to do so on the balance of probabilities, having regard to the surrounding circumstances. 27 In the present case, the contention for the Commission before the AAT was that the SoP regime could not apply, given the unknown cause of death, and the consequent inability to characterise the kind of death for the purpose of an SoP. Alternatively, the Commission contended that there was no applicable SoP given the findings of the Coroner, which excluded suicide, and did not support a suggestion that the death could be characterised as a sudden unexplained death, as defined by SoP No 99. In its reasoning, the AAT considered that SoP No 99 could not apply, because there was no evidence before it of the first onset of any identifiable symptoms of any kind within twenty-four hours of the veteran's death. Apart from SoPs in relation to suicide and sudden unexplained death, no suggestion was made that there was any other SoP which could apply. 28 I do not accept the submissions of the Commission on the amended ground for several independent reasons. First, a finding of suicide under that SoP was precluded by the Coroner's finding. In its terms, SoP No 99 could not apply for the reason given by the AAT, namely, the inability in the peculiar circumstances of this case, to determine when the death took place. Therefore, it was unnecessary, given the consensus there was no relevant SoP, to make any analysis of the kind of death met by the veteran. Accordingly, in my view, the appropriate course for the AAT was to proceed directly to consider whether a claim could be made out on the law as it stood prior to the introduction of the SoP regime on 30 June 1994. It was not necessary to make any specific determination at the preliminary stage in relation to the kind of death met by the veteran. 29 Secondly, it is clear from [34], [36], and [45] of its reasons that the AAT accepted the finding of the Coroner that the death was not suicide, but was due to natural causes. In my view, this acceptance supports the view that the finding was that the veteran died of natural causes, the aetiology or medical cause of which is unknown. Therefore it could be said that there had been a determination of the kind of death, leaving the question of aetiology or medical causation undetermined. On this basis, there was in fact a determination of the kind of death. 30 Thirdly, the expression "kind of death" is wide reaching. It does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring "suddenly" or in a particular location or set of circumstances. The expression "kind" does not mandate a determination of the precise medical causation of the death. A death, for example, might be characterised as a death at sea, or a death in circumstances in which there has been an exposure to the elements. This could properly be described as a kind of death using that expression in a broad sense. 31 In the present case, it is common ground that SoP No 99 could not apply because of the description as to what amounts to sudden unexplained death. Accordingly, it is appropriate to proceed with the matter on the basis of the requirements of s 120: see Woodward v Repatriation Comission [2003] FCAFC 160 at [55]; Hancock at [10]. 32 The additional submission for the Commission was that the AAT had fallen into procedural error because it mistakenly assumed that its task was first to ascertain whether there was some material capable of supporting the hypothesis propounded by Dr Altman, and secondly, to consider whether the hypothesis had been dispelled. It was said that the AAT should rather have looked at the whole of the material before it, and then asked whether, on consideration of all the evidence, the material pointed to a reasonable hypothesis that the death was war-caused. In support of this submission, the Commission referred to the final eight paragraphs of the reasons for decision of the AAT. In those paragraphs, the AAT states that the starting point for the consideration of the hypothesis was the finding that the veteran had war-caused post traumatic stress disorder, had suffered serious financial loss in the 1990s, and suffered depression in the months before he died in rugged bushland of unknown causes. The AAT referred to the fact that there was material to the effect that the veteran was found lying in a foetal position, that the body was dressed inappropriately for a trip to Sydney, and that there were no belongings that he would have been expected to have been taken, thereby indicating a lack of self care. 33 The thrust of the submission for the Commission is that the AAT did not consider all the material but narrowly focused on the evidence which supported the hypothesis, specifically the evidence of Dr Altman, without taking into account a substantial amount of other material. 34 In my opinion, it is not appropriate when reading the AAT decision to simply take into account only that part of the reasons for decision of the AAT set out in the eight paragraphs referred to by the Commission. It is necessary, in accordance with settled principle, to give a fair reading to the whole of the judgment, and to approach the reasons without any predisposition to find error in those reasons: see Minister for Immigration and Multicultural and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-6. 35 In the AAT reasons the relevant legislation is set out and the issues are defined. The evidence of Dr Altman, Dr Oettle, and the Coronial Inquiry are summarised. In addition, the submissions of the parties are recorded and the relevant leading authorities and legislative provisions are referred to. In particular, there is reference to, and extracts cited from, Bushell v Repatriation Commission (1992) 175 CLR 408, East v Repatriation Commission (1987) 16 FCR 517, Re Dell and Repatriation Commission (1986) 9 ALD 596, Bull v Repatriation Commission (2001) 188 ALR 756 and Elliott v Repatriation Commission [2002] FCA 26. 36 There is no complaint that the factual material referred to in the decision was inaccurate, or that the correct principles were not set out. Rather, it is said there are indications that the AAT misdirected itself by referring first to the hypothesis, and then seeking out and focusing on material which supported the hypothesis, and not taking other material into account. In my view, on a fair reading of the reasons, this contention cannot be made out. It is, generally speaking, difficult to establish in circumstances where a decision-maker has set out the relevant material and adverted to the correct principles, that such material and principles have been ignored and not applied. While it is true that there could have been more discussion of the evidence as a whole in the final section of the reasoning of the AAT, I do not think it has been established that the AAT did not take into account the whole of the evidence before it as required by the relevant principles. Nor do I consider that the AAT misdirected itself as to the correct approach. In my opinion, it was open to the AAT, on the material before it, to adopt the view that there was a reasonable hypothesis that the veteran's death was war-caused which possessed some degree of acceptability or credibility, and which was not obviously fanciful, impossible, incredible, or not tenable or too remote or too tenuous. The AAT could reasonably consider that there was sufficient support in the material to point to, and not merely leave open, a reasonable hypothesis that the death was war-caused. It is not necessary that the hypothesis should be proven on the balance of probability or be correct as a matter of fact. The threshold is lower in deciding this question.

37 Having regard to the above considerations, I am not persuaded that any reviewable error has been made out and accordingly, the appeal is dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Solicitor for the Appellant: Australian Government Solicitor

Solicitor for the Respondent: Dibbs Barker Gosling