Turnbull, Lionel Repatriation Commission [1997] FCA 421

Federal Court of Australia|1997-05-21|Before: Merkel J

Repatriation - Veteran's disability pension - Application for payment at special rate - Criteria for special pension - Whether veteran prevented from continuing work because of war-caused injury or disease alone - Administrative Appeals Tribunal decision that veteran not entitled because other facts contributed to cessation of work - Whether error of law - Whether Tribunal's finding open on evidence before it.

Veterans' Entitlements Act 1986 (Cth) ss.19(5), 24(1)(c), 120(4) Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259 Cavell v. Repatriation Commission (1988) 9 AAR 534 Servos v. Repatriation Commission (1995) 56 FCR 377 VG7/1996 - MR LIONEL TURNBULL V. REPATRIATION COMMISSION MERKEL J MELBOURNE 21 MAY 1997

IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY GENERAL DIVISION No. VG 7 of 1996 On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal constituted by Mrs H.E. Hallowes, Senior Member. BETWEEN MR LIONEL TURNBULL Applicant

and - REPATRIATION COMMISSION Respondent COURT: MERKEL J PLACE: MELBOURNE DATE: 21 MAY 1997 REASONS FOR JUDGMENT The applicant has appealed pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") against the decision of the Administrative Appeals Tribunal ("the AAT") made on 15 November 1995. The AAT decided, inter alia, that the applicant was not entitled to be paid a pension at the special rate under s.24 of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). At the relevant date, in so far as is material, s.24 provided: 24. (1) This section applies to a veteran, other than a veteran to whom section 25 applies, if: (a) either: (i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; (b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) the veteran, is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity. (2) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from the war-caused injury or war-caused disease, or both; or (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason;....

Before the AAT the issue in dispute between the parties related to whether, at any time during the relevant assessment period, the requirements of s.24(1)(c) were met to the "reasonable satisfaction" of the AAT: see s.120(4) and Repatriation Commission v. Smith (1987) 15 FCR 327 at 335. The requirements to be met under s.24(1)(c) are that: • the veteran is, by reason of incapacity from a war-caused injury or disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking;

• by reason of that incapacity the veteran is suffering a loss of salary or wages, or of earnings on his or her own account; and • the loss is one that the veteran would not be suffering if the veteran was free of the incapacity. If the veteran has ceased to engage in remunerative work for reasons other than the incapacity from the war-caused injury or disease, or is incapacitated or prevented from engaging in remunerative work for some other reason, the veteran shall be taken not to have met the requirements of s.24(1)(c). In the present case the assessment period for the purposes of s.24(1)(c) commenced on or about 19 January 1990 and continued until the date of determination of the applicant's claim by the AAT on 15 November 1995: see s.19(5) of the Act. The issues arising on the appeal to the Court related to the findings by the AAT that the applicant did not meet the requirements of s.24(1)(c) as: • the applicant's incapacity resulted from injuries which were war-caused and other injuries which were not war-caused; and • the applicant ceased to engage in remunerative work as a result of his incapacity and economic factors. The parties were in agreement before the AAT that the veteran's war-caused injuries were post gastric surgery syndrome, post traumatic stress disorder and lumbar spondylosis. The applicant's evidence and medical evidence adduced on his behalf before the AAT was to the effect that chronic back pain (resulting from the lumbar spondylosis) caused the applicant to cease his remunerative work as a farmer. However, there was also other medical evidence before the AAT to the effect that the applicant also experienced chronic shoulder and wrist pain which contributed to his incapacity and had interfered with his ability to continue his work as a farmer. After summarising aspects of the evidence, the statutory framework and certain case law the AAT stated its findings: 17. The Tribunal is satisfied that the applicant is not entitled to be paid pension at the special rate. The applicant's claim that his "arthritis" was war-caused was amended, with the consent of the parties, to lumbar spondylosis. Dr Infeld reported that the applicant had pain in his shoulders and wrists, reduced grip strength and digital dexterity. Mr H Hadley, orthopaedic surgeon, who examined the applicant on one occasion, expressed the opinion that the applicant did not have generalised osteoarthritis, but his report dated 28 April 1995 does not reflect examination of other than the applicant's lower back. Dr W Stone, rehabilitation and occupational physician, reported on 2 August 1995 that the applicant told him my "shoulders effect (sic) me even more than my back now" although questioning by Dr Stone failed to provide evidence of systemic arthritis. Mr J Lambert, consulting physician, referred to medication taken by the applicant for "his generalised osteoarthritis". The Tribunal is therefore satisfied that even if the applicant now only experiences pain in his wrists and shoulders occasionally it is because he no longer does activities which place stress on his shoulders and wrists. The Tribunal finds that the pain in the applicant's shoulders and wrists plays a part in preventing the applicant from engaging in remunerative work such that he has suffered a loss of earnings. Although the applicant's shoulders and wrists do not affect him as much as his war-caused diseases the Tribunal is satisfied that they add their measure to the rate of his earnings. The Tribunal also accepts the respondent's contention that economic factors contributed to the applicant ceasing to engage in remunerative work. The applicant acknowledged that the free supplement to his cattle feed contributed to his farming operation before 1989. It was after he lost access to factory wastes that he held a clearance sale. Although that occurred before the application day it is a relevant factor to the issues arising under paragraphs 24(1)(c) and now 24(2A)(e) of the Act. 18. The Tribunal is satisfied that the applicant has not lost remuneration consequent "alone" upon his capacity from war-caused injury and disease which he would not be suffering were he free of that incapacity. It is for these reasons that the Tribunal will vary the decision of the respondent as agreed between the parties.

It was submitted on behalf of the applicant that the AAT erred in law in arriving at its findings. In summary it was submitted that: (a) the AAT failed to make the findings of fact required by s.24(1)(c) and s.24(2); (b) the evidence suggesting that the applicant's failure to continue remunerative work for reasons other than war-caused injuries was so slight that the AAT must have applied a standard of proof other than the civil standard of reasonable satisfaction required by s.120(4); (c) the AAT referred to statutory provisions and case law which were irrelevant to the issues before it, indicating that it misconceived its task by addressing incorrect questions of fact and law; (d) the AAT provided inadequate and insufficient reasons for its determination; and (e) the reasons provided by the AAT demonstrate that it misconceived its function in relation to the issues it was required to address under s.24(1)(c) and s.24(2). Recently in Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259 at 272 the High Court re-stated the caution with which a reviewing court should approach the reasons given by an administrative decision maker. In re-iterating that courts should not be "concerned with looseness in the language...nor with unhappy phrasing" of the reasons, Brennan CJ, Toohey, McHugh and Gummow JJ said at 272: These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

The caution is apposite to the present case. The broad nature of the challenge by the applicant to the AAT's decision and the extensive references made to the detail of the evidence before the AAT in support of those submissions suggest an endeavour to have the decision reviewed on the merits rather than on the ground of error of law. In Cavell v. Repatriation Commission (1988) 9 AAR 534 at 539 Burchett J stated the true task for the AAT under s.24(1)(c) of the Act: ....to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.

His Honour added that it is not sufficient merely to point to error in the reasons; it is necessary to show that the error played a part in the decision reached. In my view a fair reading of the reasons demonstrates that the AAT approached its task in the manner identified by Burchett J. In the AAT's reasons there was some looseness in language, reference was made to certain statutory provisions and case law which may not have been relevant to the decision made and certain findings of fact were not expressed in terms which accord with the requirements set out in s.24(1)(c). However, viewed as a whole, the reasons of the Tribunal fail to show that the AAT erred in law, misconceived its task or the civil standard of proof it was to apply, or failed to make the findings required for the refusal of a claim under s.24(1)(c). In substance the AAT found that during the assessment period: • the pain and disability in the applicant's shoulders and wrists played a part in preventing the applicant from engaging in remunerative work; • that pain and disability did not result from a war-caused injury; • although the applicant's war-caused injuries had a more substantial effect than the non-war caused injuries in preventing the applicant from engaging in remunerative work, both contributed to his loss of earnings; • economic factors also contributed to the applicant ceasing to engage in remunerative work; and • accordingly, war caused injuries alone did not cause the incapacity which prevented the applicant from continuing to undertake remunerative work, or cause his loss of earnings. The findings were open on the evidence and, as a matter of law, warranted the refusal of the application under s.24(1)(c) for a pension at the special rate. In my view it was clearly open to the AAT to not accept the applicant's evidence that only his war-caused injuries caused his incapacity to continue work as a farmer and to conclude, on the material before it, that the cessation of the applicant's farming activities and remunerative work was not caused by his war-caused injuries alone: see Servos v. Repatriation Commission (1995) 56 FCR 377 at 387. The reasoning process by which the AAT reached its conclusions was sufficiently and adequately explained in its reasons for decision. I am not satisfied that the AAT applied a wrong standard of proof or erred in law as was submitted on behalf of the applicant, nor that, if any error did occur, that error played any material role in the decision to refuse the application for a pension at a special rate under s.24(1)(c). Accordingly the appeal is to be dismissed with costs. I certify that this and the preceding 7 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel

Associate: Date: HEARD: 15 May PLACE: Melbourne JUDGMENT: 21 May 1997 APPEARANCES: Mr D De Marchi instructed by De Marchi & Associates appeared for the applicant Mr P Hanks instructed by the Australian Government Solicitor appeared for the respondent

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