Re Betty Lennell v Repatriation Commission WA [1982] FCA 7 (3 February 1982)

FEDERAL COURT OF AUSTRALIA

Re: BETTY LENNELL
And: REPATRIATION COMMISSION
W.A. No. G.23 of 1981
Repatriation - Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
Toohey J.
Sheppard J.

CATCHWORDS

Repatriation - war widow's pension - death of former member of Armed Forces from adenocarninoma of the lung - whether death had arisen out of or was attributable to war service - standard of proof.

Administrative law - Administrative Appeals Tribunal - appeal to Federal Court of Australia - standard of proof to be applied by Tribunal - mis-direction in approach by Tribunal to evidence - remittance of matter to Tribunal.

Administrative Appeals Tribunal Act 1975 s.44 Repatriation Act 1920 ss.47, 101

HEARING

MELBOURNE
3:2:1982

ORDER

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Tribunal to be heard and determined according to law after the hearing of such further evidence as it may decide to receive.

4. The Repatriation Commission to pay the applicant's costs of the appeal.

DECISION

In this matter we have had the advantage of reading the judgment to be delivered by Toohey J. We are thus saved the necessity of setting out the essential facts, a summary of the conclusions of the Administrative Appeals Tribunal ("the Tribunal") and the effect of the decision of the High Court in Repatriation Commission v. Law (as yet unreported, 16 October 1981). Subject to the further matters hereinafter referred to we adopt those aspects of his judgment.

This is another of the increasing number of cases coming before the Repatriation tribunals in which persons claim to be entitled to pensions under the Repatriation Act 1920 ("the Act") as a result of the contracting of cancer by the claimant or by a person upon whom the claimant was dependent. In this case the essential question for decision concerns the meaning and effect of s.47 of the Act.

In essence, the applicant made two submissions. These were:

1. The evidence was such that no tribunal properly directing itself as to relevant matters of law could have reached the conclusion that it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. As a matter of law, the only course open to the Tribunal was to hold that it was not so satisfied.

2. Contrary to the principles decided upon in Law's case and to what the Tribunal itself said about them, a reading of its decision discloses that it had imposed an onus of proof upon the applicant to establish a causal link between the deceased's war service and the cancer from which he died, an onus which upon the true construction of the legislation she did not bear. It is noted that in Law's case the High Court considered the effect of s.107VH of the Act while the present case concerns the effect of s.47 of the Act, but the substantive effect of the two sections is the same.

In the submission of the Commission it was plainly open to the Tribunal to reach the conclusion which it did. Nor, in its submission, was there any failure to apply the principles of Law's case. A proper understanding of the Tribunal's decision, reading it as a whole, did not disclose that it had imposed any onus of proof upon the appellant.

It is to be observed that the two submissions relied upon by the applicant are separate and distinct, the first not being based upon anything said by the Tribunal in developing its reasons. It goes only to the Tribunal's conclusion. If that submission were upheld, the proper course would be to substitute for the Tribunal's decision, a decision that would have the effect of there being granted to the applicant the pension which she seeks. On the other hand, if the first of the applicant's submissions be rejected, but the second upheld, the appropriate course will be to remit the matter to the Tribunal so that it may decide the matter according to law. In that event it would not be appropriate for us to substitute any decision of our own for that of the Tribunal. What we have said indicates that if the first submission be upheld it will be unnecessary to consider the second.

The evidence referred to by Toohey J. in his judgment demonstrates that if the applicant had been required to make out a positive case, it would have been an extremely weak one. Indeed, there is not to be found in any of the medical opinions any support for it at all. But in the applicant's submission that is of little consequence because she carries no onus of proof; the Commission on the other hand bears the heavy onus of disproving absence of causation between the deceased's war service (including accidents and diseases suffered in the course of or as the result thereof) and the cancer from which he died; see ss.101(1) and (1A) and 47.

In summary, the matters relied upon in support of the applicant's first submission may be summarized as follows:

1. The deceased died of cancer suffered in the first instance in the lung.

2. Whilst on war service the deceased suffered bouts of tonsillitis leading eventually to the removal of his tonsils in May 1945.

3. Whilst on war service the deceased suffered stress arising from a number of distressing incidents detailed in the evidence, the principal of which were the crash of a Whitley bomber in which the deceased was carrying out pilot training, one of the engines of another bomber of which he was the pilot catching fire, a Halifax bomber crashing and bursting into flames (incinerating its crew) at the end of a runway, and a Stirling bomber, blowing up in mid air in front of his aircraft during operations over the Rhine River.

4. The deceased smoked cigarettes during the period of his war service, having taken up cigarette smoking prior to enlistment.

5. The deceased suffered trouble with his back due, firstly, to some injury thereto suffered in the crash of the Whitley bomber, and secondly, to postural problems arising because of long hours in the confined space of an aircraft cockpit.

6. The cause of the cancer from which the deceased died is unknown.
7. Although the medical evidence tends to exclude war service and events and diseases associated therewith as causative of the cancer from which the deceased died, it did not positively exclude the following possibilities, each of which was said to be real and distinct:

(a) The cancer was caused by cigarettes smoked by the deceased during and after the war, and possible increased smoking being due to the stressful conditions under which he served and bouts of pain suffered by him as a

result of his back problems.

(b) The cancer was caused by the direct effect of stress upon him independently of cigarette smoking.

(c) The cancer was caused by a lowering of the immuno-sufficiency system of the deceased (immunosuppression) because of the removal of his tonsils and also problems with his back, the stress from which he suffered, his smoking, or combinations of two or more or all of these factors.

(d) The cancer was caused by an unknown and unidentifiable event, incident, disease or circumstance which happened or was suffered by the deceased either during or as a consequence of his war service.

(e) The cancer was caused by a combination of two or more of the matters specified in the previous sub-paragraphs.

As appears from the matters mentioned in paragraph 7(d), counsel for the

applicant went so far as to submit that every person who had war service and who died of a disease, the cause or origin of which could not be identified or understood, was entitled to a pension. That submission does not, however, need to be accepted in order that the applicant's first submission be upheld.

The summary of the medical evidence in the judgment of Toohey J. discloses that each of the doctors, understandably, approached the problem from the viewpoint of whether the evidence established any accident or disease or other circumstance related to war service had caused the deceased's cancer. They did not approach it from the viewpoint of negativing his war service as a possible cause. But, when asked about possibilities, their evidence was to the effect that it was most unlikely that any of the specific matters referred to in paragraph 7 above was a possible cause of the disease. In particular, we think it is correct to say that there is no suggestion whatever that the back condition from which the deceased suffered could have been a possible cause. Stress and immunosuppression, whether by reason of the removal of the deceased's tonsils or otherwise, were heavily discounted as possibilities, some of the evidence suggesting that they were not possible causes at all.

It remains to consider the effects of smoking. According to the medical evidence there were two factors militating against the view that it was the cause. The first was the period or lead time between the insult to the relevant cells and the onset of the disease. This was put as being likely to have been no longer than 25 years, which would take one back no earlier than 1952. But a longer period was acknowledged as being possible. And the fact that one was constrained by a period of 25 years, if that were the position, would not overcome a case based on increased smoking arising or continuing after the war as the result of stressful conditions suffered during and by reason of service in it.

The second factor is the evidence that the particular variety of cancer suffered by the deceased was adenocarcinoma. This is to be distinguished from squamous carcinoma of the lung which is the more usual type of cancer caused by smoking. But a survey had tended to establish that there is a somewhat higher incidence of adenocarcinoma of the lung in smokers than in non-smokers. Furthermore, the other principal cause of adenocarcinoma is said to be from the scarring of the lungs due, usually, to earlier attacks of pneumonia. There is evidence of a history of upper respiratory tract infections suffered by the deceased but no history of pneumonia and, therefore, no evidence of scarring of his lungs.

Notwithstanding the weight that has to be given to medical opinion strongly discounting the possibility of smoking as a cause, especially by reason of the two factors just mentioned, it would seem to us that there remains a serious question mark about smoking as a cause. The Tribunal was able to discount this possibility because of a view taken about the evidence of Professor Tattersall, one of the medical practitioners called before it. The Tribunal said:

"We accept that the ex-member's smoking, other than smoking between 1942 and 1945, may well have been a factor in the causation of his adenocarcinoma. We are satisfied that the ex-member had a smoking habit before enlistment; there is no evidence that that habit was increased, altered or prolonged by his war service."

Professor Tattersall is Professor of Cancer Medicine at the University of Sydney. He treats patients with cancer and also conducts research into the causes and treatment thereof. He has a distinguished record in this field which it is unnecessary to detail. The evidence of Professor Tattersall relied upon by the Tribunal to support the findings in the passages from its decision just quoted is as follows: ". . . in the context of the smoking during his war service - that is, from 1942 to 1945. Is it possible to implicate that smoking? ---
During that time?
Yes? --- No.

You are saying that it has to be a case where there has been habitual smoking before you could expect this disease to occur? --- With respect, I am saying I do not know whether it is the first or fifth cigarette.

Or the 5000th for that matter."

The last sentence was an aside from counsel which was made immediately before he turned to his next question which was on a different topic. However, it is plain from a reading of the transcript that counsel's aside had the witness's assent.

As we understand it, the point which Professor Tattersall was making is that research does not enable him to say whether the original insult to cells in the deceased's lungs was caused by the first or the 5000th cigarette. The first was smoked prior to the war; the 5000th or later cigarette (which equally may have been the cause) was probably smoked during it or thereafter. It is for that reason that Professor Tattersall expressed the positive view that it was not possible to implicate smoking by the deceased between 1942 and 1945 as a cause. But what he did not do was to exclude it, that is smoking between 1942 and 1945, as a possible cause. That was not a question to which Professor Tattersall expressly directed his mind. With respect to the Tribunal, it would seem to us that if Professor Tattersall had been asked whether smoking between 1942 and 1945 was a possible cause, he would have answered the question affirmatively. That is the tenor of his evidence.

Notwithstanding that criticism of the Tribunal's findings, it is true to say that there is no direct evidence that the deceased's smoking habit was increased, altered or prolonged by his war service. The only evidence about his smoking is that he said, on enlistment on 12 September 1942, that he smoked eight cigarettes per day. In the later years of his life he said, in a history given to a doctor, that he had become a moderate pipe smoker. There is no evidence of any statement made by the deceased as to the amount of his smoking in the period in between, except that the evidence would suggest that he remianed a smoker during the whole of the period between his enlistment and the latter part of his life. However, it would seem to us to be unlikely, on the basis of human experience, that his smoking habit would not have increased during the war years and thereafter. The medical evidence discloses him to have been an introspective person much concerned with his health. The experiences he had during the war, particularly the specific incidents earlier mentioned, weighed heavily upon his mind. Certainly the evidence does not discount there being a strong possibility that his smoking did increase during and as a result of his war service. Nevertheless it is true, as the Tribunal has said, that there is no evidence that his habit was increased, altered or prolonged by his war service. On the other hand, the Tribunal does not allude to the question of whether there was or was not a real or distinct possibility of its having been increased by the stressful experiences which he suffered.

Notwithstanding the strenght of the medical opinions before the Tribunal, we think there is a real question of whether there was not a real possibility that the deceased's smoking habits were not increased by his war service and that smoking was the cause of the cancer from which he died. We have given anxious consideration as to whether this is not a case, like Law's case, where it can be said that no tribunal, properly directing itself as to the matters of law relevant to be applied, could come to any conclusion other than that it was not satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. In the consideration of the problem we have had regard to what was said by Aickin J. in Law's case (p.15 of the print), namely:

"Although the medical reports were in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong."

To our mind what his Honour has said is not quite the same as what was said on the same topic by Murphy J. His Honour said (p.5);

"The role of the Commission and of the Tribunal should not be misunderstood. Their function was to decide a question of fact or of mixed fact and law. They were not, on the evidence, bound in law to find for the claimant. Even where experts differ, as here, it is open to the Tribunal to be satisfied beyond reasonable doubt that there were insufficient grounds. A conflict of testimony (expert or otherwise) does not require that the claim be upheld (anymore than in a criminal trial it would require an acquittal) although often it would have that result."

To the extent that there is a difference between the two judges, the view of Aickin J. must prevail because his judgment was agreed in by the other judges of the Court, Gibbs C.J. and Stephen and Mason JJ.

Although the cancer in the present case may, as a matter of real or distinct possibility, have been caused as the result of war service, the medical evidence is not nearly so powerful as it was in either Law's case or Repatriation Commission v. Byrne (Federal Court of Australia, unreported, 9 December 1981).

Having given the matter the consideration to which we have referred, we have formed the opinion that this is not a case where the Tribunal is bound, as a matter of law, to find that it cannot be satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. Because of the comparative weakness, from the applicant's point of view, of the medical evidence the case is to be distinguished from the class of case referred to by Aickin J. in the dictum from his judgment in Law's case above cited. We think that our real criticism of the Tribunal's decision that there was no real possibility that the cancer was caused by war service arises because of the way we consider the Tribunal misdirected itself as to the effect of smoking in the critical years 1942 to 1945. The Tribunal, to our mind, misunderstood Professor Tattersall's evidence and thus led itself to discount the part that smoking may have played. That criticism does not lead us to the view that no tribunal, properly directing itself, could have reached the same conclusion as did the Tribunal here. It follows that the applicant's first submission must be rejected.

Before turning to the second submission we should say something of the applicant's submission that in every case where a serviceman died of a disease, the cause of which was unknown, his dependents were entitled to a pension because it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. We would reject this submission because, notwithstanding that the cause may not be known, it may be possible to demonstrate beyond reasonable doubt that the cause could not have been related to war service. We do not think that that approach ought to succeed here. We are of that opinion because of the amount of evidence which there is concerning the deceased's medical history and war service. We would consider such a general approach to be unhelpful and dangerous. It over-simplifies the problem and seeks to equate the Australian legislation to that in force in the United Kingdom. In our opinion the decisions in England in Judd v. Minister of Pensions (1966) 2 Q.B. 580 and Coe v. Minister of Pensions (1967) 1 Q.B. 238 have no application in Australia.

We now consider the applicant's second submission. One of the matters to be taken into account in relation to that submission is the misunderstanding of Professor Tattersall's evidence just referred to. The other matters relied upon are, in summary, based upon a series of findings of the Tribunal which, in the submission of the applicant, are so phrased as to indicate that the Tribunal, notwithstanding statements to the contrary elsewhere in the decision, in fact imposed an onus of proof upon the applicant which she did not bear. These various findings were expressed by the Tribunal as follows:

1. "We are satisfied on the evidence that stress, war caused or otherwise, did not initiate the ex-member's cancer and that stress does not cause cancer but in particular patients with a terminal illness it may

accelerate the death."

2. "There is no evidence that any stress, war induced or otherwise, did produce such an acceleration in this case."

3. "Having regard to all the evidence, we are satisfied that there had been no impairment of the ex-member's immune mechanism or that he had suffered from immuno deficiency. There is no evidence which we accept as showing any relationship between immuno deficiency and the ex-member's adenocarcinoma."

4. "There is no evidence that the site of the ex-member's adenocarcinoma was in an area of scar or that there was any scarring of the ex-member's lung."

5. "There is no evidence that his smoking habit resulted from any occurrence that happened during the period mentioned in section 101(1)(a) of the Act or arose out of or was attributable to his war service. Section 101(1)(b)."

These findings appear towards the end of the Tribunal's decision after it

had commenced its final analysis of the evidence, but before it had considered s.47 of the Act and its application in accordance with the views expressed by the High Court in Law's case. The findings, which are interspersed with more detailed discussion, are introduced by the Tribunal with the words "(We) record our findings". In our opinion the applicant is correct in the submission made by her counsel that the Tribunal does appear to be stating its findings as if she bore the onus of establishing positively that the cancer was caused by war service. We think therefore that its decision must be looked at critically in order to see whether it has not in fact fallen into such an error.

Elsewhere in the decision there are clear indications that the Tribunal properly understood the relevant legislation and its implications. Moreover, there later appear further findings positively excluding war service as a cause. Special attention was paid to the question of whether some unknown factor was a contributing cause. Any such possibility was said to be fanciful or tenuous. Other parts of Professor Tattersall's evidence were referred to. Amongst other things the Professor had said that it was extremely improbable that the deceased's war service was aetiologically related to lung cancer; "the chance was extremely small". Later Professor Tattersall had said that it was extremely unlikely that war service was a possible cause of the cancer.

A court exercising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decisions even if the court feels that the tribunal's language may have a degree of looseness. Certainly it ought not to indulge in an exercise which over-zealously picks the tribunal up in the way it has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply.

Nevertheless, we remain troubled about the way the Tribunal ultimately approached the matter of decision. It is true that if one is concerned with the question of whether or not something may have been caused by real or distinct possibilities, one may legitimately tackle the problem by deciding that some relevant factor was positively not a cause. The very positiveness of the decision excludes the factor as being no more than tenuous or fanciful. But if the Tribunal does approach the matter in this way it ought, notwithstanding the latitude in language that it should properly be allowed, be careful to keep in mind what it is that it is about. It must be at pains to avoid the danger of imposing upon a party an onus which he does not bear.

Our minds have fluctuated on what the outcome of this submission should be. Having reflected on the matter we have reached the conclusion that the Tribunal's findings may well contain the seeds of error. When we add into the balance its misunderstanding of Professor Tattersall's evidence earlier referred to, we reach the opinion that the Tribunal did misdirect itself in the way that it approached the matter with the result that its decision should be set aside and the matter remitted to the Tribunal to be heard and decided again. We express no view as to whether the Tribunal should hear further evidence. That is a matter which we would leave to its discretion.

The Administrative Appeals Tribunal Act 1975 s.44 confers on the Federal Court jurisdiction to hear an appeal from the Administrative Appeals Tribunal ("the Tribunal") "on a question of law".

In this appeal the applicant challenges a decision of the Tribunal which upheld the rejection of her claim for a war pension on the ground that the death of her husband Edward John Lennell was due to his war service.

It may be useful to set out in summary form the chronology of events associated with the making of the claim. This summary is in large part borrowed from the reasons for decision of the Tribunal.
Date Event

10 January 1978 The applicant's claim was disallowed by a Repatriation Board.

21 February 1978 The applicant appealed to the Repatriation Commission against the Board's decision.

11 April 1978 The Commission disallowed the applicant's appeal

28 April 1978 The applicant appealed to a War Pensions Entitlement Appeal Tribunal. Further evidence was placed before that Tribunal which referred the further evidence to the Commission pursuant to s.64(4) of the Repatriation Act.

17 May 1979 The Commission considered the further evidence and adhered to its previous decision.

25 October 1979 Pursuant to s.48 of the Repatriation Acts Amendment Act 1979, a further appeal by the applicant came before the Repatriation Review Tribunal as if it were an application under s.107VC of the Act. During that hearing the applicant's representative made a request under s.107VZZB(3) of the Act that the decision of the Commission be referred for review by the Administrative Appeals Tribunal.

28 March 1980 The President of the Repatriation Review Tribunal referred to the President of the Administrative Appeals Tribunal the decision of the Repatriation Commission with a request that the Administrative Appeals Tribunal review that decision.

2 May 1980 The President of the Administrative Appeals Tribunal directed a review by that Tribunal of the decision of the Repatriation Review Tribunal.

22 October 1980 The hearing before the Administrative Appeals Tribunal began.

26 May 1981 The Administrative Appeals Tribunal delivered its decision, affirming the decision of the Repatriation Commission.

23 June 1981 The applicant lodged notice of appeal from the decision of the Administrative Appeals Tribunal to the Federal Court.

18 September 1981 The hearing of the appeal to the Federal Court began.

In Law v. Repatriation Commission (1979-80) 29 ALR 64, also concerned with a claim to a war widow's pension, I spoke of the "unsatisfactory situation of such a chain of review procedures" (at p.67). Mrs. Lennell's appeal reached the Federal Court by a somewhat different route to that traversed by Mrs. Law. But it too gives cause for concern whether such a costly and time-consuming line of procedures cannot be streamlined.

This appeal concerns several questions that were argued in Law's case. At the time of hearing, the decision of the Full Court of the Federal Court in that matter (Repatriation Commission v. Law (1980) 31 ALR 140) was under appeal to the High Court. The present appeal to the Federal Court was necessarily argued on the basis that the decision of the Full Court in Law's case was correct, the respondent however reserving all rights pending the High Court's determination. On 16 October 1981 the High Court delivered its decision, dismissing the appeal of the Repatriation Commission. Although it will be necessary to refer to the reasons of the High Court in some detail, it is enough for present purposes to say that the Court upheld the decision and reasoning of the Full Court, thus making it unnecessary for the present appeal to be reargued.

The present applicant was obliged to identify the questions of law to be raised on her appeal. This she did in some detail. I am satisfied that as formulated and as argued the appeal satisfies the requirements of s.44 of the Administrative Appeals Tribunal Act so as to ground the jurisdiction of this Court.

Put broadly, the questions of law are whether the Tribunal correctly applied a number of sections of the Repatriation Act, whether it correctly applied the decision of the Federal Court in Repatriation Commission v. Law and whether, as a matter of law, the Tribunal could properly have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the appellant's claim.

The grounds of appeal reflect those questions of law, contending in the main that on the evidence before it the Tribunal could not properly have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the appellant's claim.

The Tribunal had before it a great deal of material including files relating to Mr. Lennell's war history and subsequent medical treatment; as well it heard from a number of medical witnesses. While it is necessary to examine some of this material and to mention some of the evidence, the requirement that the appeal can succeed only if, in effect, the Tribunal was wrong in law makes it unnecessary to refer to the evidence in great detail or to analyse each finding of the Tribunal. The Tribunal's reasons are expressed in a lengthy judgment.

Mr. Lennell was born on 19 February 1920. Between 24 August 1942 and 11 September 1942 he was in the Australian Army; he was then discharged to enlist in the Royal Australian Air Force. His enlistment in the RAAF lasted until 11 December 1945 and included service in Australia and in the United Kingdom. He had begun smoking cigarettes before enlistment and continued to smoke during his service.

While in the Forces Mr. Lennell received medical treatment for a variety of complaints including inpatient treatment for tonsillitis. On 22 October 1973 he lodged a claim for medical treatment and pension, based largely on anxiety and tension and pain behind the nose and eyes and temple, sometimes accompanied by pain in the neck and shoulders. He also referred to "the odd pain around the heart and chest over the years". He began to take valium to cope with the bouts of tension. In December 1973 and February 1974 Mr. Lennell complained of chest pains. He sought but was refused by a Repatriation Board a pension in respect of this condition. In May 1974 he appealed against the Board's decision to the Repatriation Commission but did not proceed with the appeal.

On 9 May 1977 Mr. Lennell was admitted to Sir Charles Gairdner Hospital where he died on 9 June 1977. No autopsy was performed but the diagnosis of his death was in these terms:

"Adenocarcinoma right lower lobe bronchus complicated by pleural effusion, hepatic secondaries, deep vein thrombosis and ischaemia of the left foot prior to death".

Until the matter reached the Tribunal, the only medical evidence tendered in connection with the applicant's claim had been reports from three doctors which were submitted by the applicant. These reports appear almost in their entirety in the reasons for decision of the Tribunal.

Dr. Harris, Mr. Lennell's general practitioner, referred to Mr. Lennell's cause of death as adenocarcinoma of the lung

"which is a form of carcinoma, which although statistically higher in occurrence in smokers, nonetheless occurs in non-smokers, so that this aspect of the matter might reasonably be disregarded. The only other feature in his history which may be of significance is a long history of URTI (upper respiratory tract infection) and removal of tonsils, and this may have presumably had some effect on his immunization mechanism".

Dr. Harris's conclusions were expressed in these terms:

"Where a man dies of a condition, of which the cause is not known, it is quite impossible to say with a certainty, that something during his war service may not have caused or played a part in the production of the condition. As a doctor, I am quite unable to state that Mr. Lennell's death was not due to war service, and under these circumstances feel that Mrs. Lennell's claim must be accepted".

The report of Dr. Demetrius, a departmental medical officer, detailed Mr. Lennell's condition and concluded:

"In my opinion this man developed cancer of the lung in 1977 and this rapidly spread and caused his death. He was a pipe and cigarette smoker and this was a risk factor. The cancer arose in a predisposed male and is in no way connected with service conditions or ailments (U.R.T.I., sinusitis and tonsillitis), nor is it related to anxiety depression from which he suffered."

The report of Dr. H.R. Elphick, whom the Tribunal described as "a highly qualified chest physician," was as follows:

"In answer to your question regarding the cause of Adenocarcinoma of the Lung, I advise that adenocarcinoma is one form of malignancy in the lung which occurs in people who have never smoked a cigarette. The incidence of adenocarcinoma is slightly higher in smokers than in non smokers but there is no doubt that some other cause must be active in the production of this form of malignancy. There is very strong statistical evidence to the effect that squamous carcinoma of the lung is almost entirely due to cigarette smoking but the same cannot be said of adenocarcinoma."

Although none of these reports was, in medical terms, favourable to the applicant's contention that her husband's death was related to his war service, she argued before the Repatriation Commission that, the cause of death being unknown, the evidence created a real possibility that something in the deceased's war service contributed to or was a factor in the development of the adenocarcinoma. In counsel's words: "The possibility cannot be excluded, and that is a real possibility".

It will be necessary to say something about this submission particularly in the light of Law's case, but that is best done after a consideration of the additional medical evidence presented to the Tribunal. That evidence was in the form of oral testimony from four highly qualified specialists called by the respondent. Their evidence was detailed; it was discussed and quoted from at some length by the Tribunal in its reasons for decision. For the most part I need do no more than summarise the Tribunal's analysis of the evidence.

Proffessor M.H.N. Tattersall, Professor of Cancer Medicine at the University of Sydney, identified cancer as an "insult" to a cell which requires a further process described as "promotion" before the cell becomes a cancer cell. In terms of what Prof. Tattersall described as the first insult, cigarette smoke is an important factor. As regards adenocarcinoma of the lung, the other factor is lung scarring or damage to the lung. In his view there was no way of knowing when the first insult to Mr. Lennell's lung occurred. The "lead time" could be as high as 35 years but it was not possible to implicate Mr. Lennell's smoking between 1942 and 1945 as having anything to do with the development of this particular cancer. There was no relationship between psychological factors and carcinogenic insult. There was nothing in the evidence to suggest that Mr. Lennell had lowered immunity. Prof. Tattersall thought it "extremely improbable that his war service was aetiologically related or contributory to his lung cancer . . . I regard the chance as extremely small". Nevertheless he was not prepared to exclude the possibility that war service was related to the development of the condition of lung cancer or that an event during war service was responsible rather than war service itself or that the cancer may have happened during that time frame. However he thought it "extremely unlikely".

Dr. P.J. Zilko, a clinical immunologist at Royal Perth Hospital and lecturer in immunopathology at the University of Western Australia, thought it improbable that Mr. Lennell suffered from immuno-deficiency of clinical consequence. In his view there was no relationship between tonsillectomy and suppression of immune function. His conclusions were in these terms:

"1. It is improbable that this patient suffered from immuno deficiency of

clinical consequence.

2. It is most improbable that the carcinoma of the lung that this patient suffered from was due to the mild immuno deficiency that it is claimed was present".

Dr. A.B.X. Breslin, a specialist in chest diseases and consultant to the

Department of Veterans Affairs, thought that most malignancies develop in smokers some 15 to 25 years later "suggesting . . . that the lead time is of that order . . . " However there was evidence that the lead time was of shorter duration. There was no evidence that Mr. Lennell had lower immunity or immune suppression on service or indeed that either led to cancer. He could find no evidence from Mr. Lennell's file that on service there was any probable or possible cause of carcinoma. The lead time was against service being related to the subsequent development of the malignancy.

Dr. B.K. Armstrong, director of the National Health and Medical Research Council Research Unit in Epidemiology and Preventative Medicine in the Department of Medicine at the University of Western Australia, thought that statistically there was something like a 70% chance that smoking was the major cause of Mr. Lennell's adenocarcinoma. There was no acceptable evidence that Mr. Lennell suffered from immune deficiency from whatever cause. He could find nothing in Mr. Lennell's file and history to lead him to believe that his war service was a factor in the development of his adenocarcinoma.

Having referred to the medical evidence, the Tribunal went on to consider what conclusions should be drawn from that evidence and then to deal with various submissions put to it. It is the way in which the Tribunal approached the material before it that lies at the heart of this appeal. In order to determine whether the Tribunal erred in that approach, it is necessary first to see what was said by the High Court in Repatriation Commission v. Law [1981] HCA 57; (1981) 36 ALR 411.

The members of the High Court were unanimous in dismissing the Repatriation Commission's appeal. Gibbs CJ, Stephen and Mason JJ concurred in reasons delivered by Aickin J; Murphy J delivered a separate judgment.

After a consideration of the material provisions of the Repatriation Act, Aickin J said of the Repatriation Review Tribunal:

"The Tribunal is required to set aside a decision refusing a claim unless satisfied beyond reasonable doubt of the negative proposition that there were insufficient grounds for granting the claim or application." (at p.418)

Speaking of the case in hand, Aickin J said:

"Although the medical reports were in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong." (at p.423)

His Honour's reasons concluded with these words:

"Accordingly the submission that s.107VH is not an 'evidentiary provision' should be rejected. I am satisfied that the operation of that section does not involve a two-stage process and that it requires that, in relation to any fact necessary to establish entitlement, the Review Tribunal must be satisfied beyond reasonable doubt that the fact does not, or did not, exist before it can refuse an application or dismiss an appeal by a claimant." (at p.424)

Section 107VH imposes on a Repatriation Review Tribunal the obligation of setting aside a decision refusing a claim "unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for grating the claim . . . " Section 47(2) of the Act imposes a simliar obligation on the Repatriation Commission and upon a Repatriation Board.

Murphy J also emphasised that the Act "thus effectively imposes on the Commission an onus of disproof, or proof of a negative, beyond reasonable doubt". (at p.412) His Honour commented:

"A conflict of testimony (expert or otherwise) does not require that the claim be upheld (anymore than in a criminal trial it would require an acquittal) although often it would have that result. Nevertheless, it is not enough that the Tribunal prefer the evidence (including opinion evidence) which tends to disprove the claim. Even if it rejects the evidence in favour of the claim, the claimant is entitled to succeed unless the Tribunal is satisfied beyond reasonable doubt that there are insufficient grounds for the claim." (at p.414)

The reasons in Law's case are of general application to claims made under the Repatriation Act although the decision of the High Court to uphold the judgment of the Federal Court was, of course, related to the facts of that case. What the judgment of Aickin J does emphasise is that at no stage does any onus of proof lie upon the claimant. A claimant is entitled to succeed unless the relevant tribunal is satisfied beyond reasonable doubt that a fact necessary to establish entitlement did not or does not exist. It follows that for a tribunal or court to review the material before it with a view to determining to what extent that material supports the claim is to take a wrong approach and one that must almost inevitably lead to error. In essence this is the complaint of the applicant against the decision of the Administrative Appeals Tribunal. Whether that complaint is justified is for this Court to determine.

At the risk of doing some injustice to the reasons for judgment of the Tribunal, its conclusions may be summed up in this way.

1. Stress, war caused or otherwise, did not initiate Mr. Lennell's cancer.

2. Stress may, in particular patients with a terminal illness, accelerate death but there was no evidence that any stress produced such an acceleration in the present case.

3. There had been no impairment of Mr. Lennell's immune mechanism and no evidence that he suffered from immuno-deficiency.

4. There was no evidence showing any relationship between immuno-deficiency and Mr. Lennell's adenocarcinoma. Even if Dr. Harris's report be regarded as some opinion evidence to this effect, his opinion or theory is untenable.

5. There was no evidence that the site of Mr. Lennell's adenocarcinoma was in an area of scar or that there was any scarring of his lung.

6. Mr. Lennell's smoking, other than smoking between 1942 and 1945, may well have been a factor in causing his adenocarcinoma.

7. Mr. Lennell had a smoking habit before enlistment. There was no evidence that that habit was decreased, altered or prolonged by his war service or that his smoking habit resulted from any occurrence during his service or was attributable to his service.

8. It was only remotely possible that an unknown factor causing or contributing to the adenocarcinoma was itself caused by or related to war service so as to constitute an occurrence in terms of the Act or that it arose out of or was attributable to war service or would answer the description of an accident or was due to a disease or infection that was contracted and would not have been contracted but for war service or for changes in environment consequent upon war service. "We consider any such possibility is fanciful or tenuous".

9. Mr. Lennell experienced good health until the sudden emergence in 1977 of adenocarcinoma, an aggressive tumor, causing his death within a month of admission to hospital.

10. The adenocarcinoma and death of Mr. Lennell and his period of enlistment and war service were unrelated.
11. Any "insult" precipitating carcinoma must have been later than the termination of Mr. Lennell's service and in no way related to that service.

The Tribunal concluded its reasons with these words :

"We are satisfied beyond reasonable doubt there is no connection or relationship between the ex-member's adenocarcinoma or death and the period of his enlistment or his war service. Any such connection or relationship could only be described as fanciful or tenuous.

We have borne in mind the provisions of section 47 of the Act.

We are satisfied beyond reasonable doubt that there are insufficient grounds for granting the Applicant's claim."

It is true that in its reasons for decision the Tribunal appears at times to be weighing the evidence for and against the applicant. It is also true that in some passages the Tribunal appears to be looking for evidence as if it could not uphold the claim unless satisfied that certain elements had been made out. Page 47 of the reasons contains examples of this. But the reasons must be looked at in their entirety and not subjected to a piecemeal criticism which divorces passages from their context.

What was required to reject the claim was that the Tribunal be satisfied beyond reasonable doubt that any facts necessary to establish entitlement to a pension do not or did not exist.

In my view, when the reasons are looked at in their entirety, the Tribunal was so satisfied although it might well have chosen language more consonant with the approach taken in Law's case, both by the High Court and the Federal Court.

On a proper analysis of the Tribunal's reasons I am satisfied that at each relevant step it considered the material before it and was satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. The Tribunal was satisfied that stress did not initiate Mr. Lennell's cancer, that it did not produce an acceleration of his death, that there was no impairment of his immune mechanism, that he did not suffer from immuno-deficiency, that the site of his adenocarcinoma was not in an area of scar, that there was no scarring of his lung, that he had a smoking habit before enlistment which was not increased, altered or prolonged by his war service, and that if any unknown factor caused or contributed to the adenocarcinoma it was "only remotely possible" that such a factor was war caused or related to war service.

I do not think it is inconsistent with Law's case to say that it is only remotely possible that an unknown factor was war caused or related to war service and then go on, as the Tribunal did, to conclude: "We consider any such possibility as fanciful or tenuous". To say that the aetiology of a disease is unknown does not mean that logically war service cannot be excluded. In a particular case the cause of the fatal condition may be unknown but on the material available it is possible to be satisfied beyond reasonable doubt that it was not attributable to war service. Dr. Harris' conclusions upon which the applicant placed much reliance is as much an exercise in syllogistic reasoning as a medical opinion. The Tribunal was entitled to reject those conclusions and it did so. Once those conclusions were rejected there was no medical opinion standing in the way of the Tribunal being satisfied beyond reasonable doubt that Mr. Lennell's death was not due to war service.

The Tribunal was satisfied that the time of any "insult" associated with the adenocarcinoma must have been later than the termination of Mr. Lennell's service and not in any way related to it.

It seems to me that what the Tribunal was doing was considering each aspect of the evidence that might throw some light upon the claim and then satisfying itself that the relevant fact or facts did not exist. It would be asking too much to require that at each step of this exercise the Tribunal repeat the formula: "We are satisfied beyond reasonable doubt". That it was so satisfied emerges with sufficient clarity from the totality of its reasons and its ultimate conclusion:

"We are satisfied beyond reasonable doubt that there is no connection or relationship between the ex-member's adenocarcinoma or death and the period of his enlistment or his war service. Any such connection or relationship could only be described as fanciful or tenuous."

In challenging the decision of the Tribunal, the applicant is confined to questions of law. As the grounds of appeal recognise, the applicant is driven to establishing that the Tribunal failed to apply the principles in Law's case or alternatively that there was no evidence upon which it could have reached its conclusion. In my view she has not done so and the appeal should be dismissed.