Re Edward Howard Thorne v Repatriation Commission [1984] FCA 259 (11 September 1984)

FEDERAL COURT OF AUSTRALIA

Re: EDWARD HOWARD THORNE
And: REPATRIATION COMMISSION
No. G172 of 1983
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.

CATCHWORDS

Repatriation - Pension - Lumbar Spondylosis - Whether incapacity arose out of or was attributable to war service - Repatriation Review Tribunal - Onus of proof - Standard of proof - Conflict of medical evidence - Whether sufficient evidence to be satisfied beyond reasonable doubt of no causal relationship.

Repatriation Act 1920 - ss.24AA, 48, 101, 107VH, 107VZ, 107VZZH.

HEARING

SYDNEY
11:9:1984

ORDER

1. The appeal be allowed.

2. The decision of the Repatriation Review Tribunal given on 6 June 1983 be set aside.

3. The Commonwealth of Australia pay to the applicant a pension in respect of his incapacity arising from lumbar spondylosis.

4. The respondent to pay the appellant's costs.

DECISION

This is an appeal from a decision of the Repatriation Review Tribunal brought pursuant to s.107VZZH of the Repatriation Act 1920 ("the Act"). That section gives to an applicant in a proceeding before the Repatriation Review Tribunal a right to appeal to the Federal Court "on a question of law, from any decision of the Tribunal in that proceeding".

2. The Tribunal, by majority, on 6 June 1983, affirmed a decision of the Repatriation Commission in which the appellant's claim for a pension was disallowed.

3. There are four grounds of appeal, as follows:

"1. The Repatriation Review Tribunal erred in law in

holding in the circumstances that a medical
explanation as to the cause of the appellant's
Lumbar Spondylosis was sufficient to discharge the
onus and standard of proof.

2. The Tribunal erred in law as to the onus and
standard of proof.

3. The Tribunal erred in law in holding that the
appellant's condition must have not existed at the
time of the appellant's discharge.

4. The Tribunal erred in deciding that 'it is
satisfied beyond reasonable doubt, that the
Repatriation Commission's decision of 18th March
1981 is the decision that the Tribunal would have
made if it had conducted the proceedings in which
the decision was made.'"

4. The appellant suffers from a degenerative back condition, lumbar spondylosis. His basic eligibility for a pension under the Act is not in issue. Indeed, a part of his application, which relates to neural deafness, was held pensionable and a pension was granted in respect thereof. Nor is it contested that the appellant complained of an injury to his back while on war service. What is in issue is whether or not there is any causal relation between the appellant's spondylosis and that injury, and in this connection, whether the Commission's onus of proof could have been discharged.

5. The sections of the Act, so far as they are relevant to the present proceedings, are as follows:

"101. (1) Upon the incapacity or death -

...

(b) of any member of the Forces whose incapacity or
death has arisen out of or is attributable to his
war service,

the Commonwealth shall, subject to this Act, be liable
to pay to the member, or his dependants, or both, as
the case may be, pensions in accordance with Division
1:

...

107VH. (1) In a proceeding on a review, the Tribunal
shall have regard to the evidence that was before the
Commission or a Board when the decision the subject of
the review was made and to any further evidence before
the Tribunal in the proceeding that was not before the
Commission or the Board but would have been relevant to
the making of a decision in the proceeding before the
Commission or the Board.

(2) On the completion of its consideration in a
proceeding on a review -

(a) where the decision the subject of the review
was a decision refusing a claim or application
for pension - the Tribunal shall set aside the
decision unless it is satisfied, beyond
reasonable doubt, that there were insufficient
grounds for granting the claim or application;
or

(b) in any other case - the Tribunal shall set
aside the decision the subject of the review
unless it is satisfied, beyond reasonable
doubt, that the decision is the decision that
the Tribunal would have made if it had
conducted the proceeding in which the decision
was made."

6. There is no onus upon the appellant to establish a causal connection between the incapacity and his war service. The onus of disproving the matters which would establish his right to a pension is on the Commission. There must of course be an initiating claim, the form of which is prescribed by s.24AA of the Act. Sub-section (1) provides that a claim shall be accompanied "by such evidence available to the claimant as he considers may support the claim". Sub-section (2) provides that the preceding sub-section "shall not be taken as imposing any onus of proof on a claimant".

7. The standard of proof resting upon the Commission can give rise to a number of difficulties. An obvious one is that, speaking generally, the less the assistance given by the applicant the greater is the difficulty of discharging the onus. In the present case the Tribunal has accepted all or nearly all that has been said by the appellant. The Tribunal, in reaching a decision, cannot regard the onus as discharged in reliance on surmise, or by placing weight on a perceived lack of corroborative evidence. The relevant principles were discussed by a Full Court of this Court in Law v. Repatriation Commission (1980) 31 ALR, where it said (at p 152):

"The scheme of the Act is not to establish an adversary
method of determining claims and applications, but to
have the Department make the relevant investigations
and then to require that, if there is some evidence
that the claimant is eligible to receive a pension, a
pension be paid unless the investigations or the course
of the proceedings throw up information which
establishes beyond reasonable doubt that a pension is
not payable."

8. In support of his claim for a pension the appellant submitted a statutory declaration in which he stated that he "ricked or pulled a muscle" in his lower back while excavating a well during a posting (with the Royal Australian Air Force) in the Trobiand Islands in 1944. He did not report the incident to a medical officer and continued working. Shortly thereafter, he engaged in a game of football which caused him some pain, albeit not disabling pain.

9. The appellant underwent a medical examination prior to his discharge in 1946 but did not report any service-related injury. After his discharge he worked in a number of occupations, one or two of which could be said to be quite strenuous. The appellant says that the pain in his lower back has continued since the war and that he did not suffer from it before. In 1948 he sought medical treatment for his back, although no evidence is available concerning medical opinion on that occasion. In 1958 he again saw doctors in relation to the pain and in 1966 x-rays were taken of his cervical spine, but these disclosed no abnormality. X-rays were taken in January 1980, this time of the lumbar region, and these, in the opinion of the examining doctor, revealed "degenerative spondylosis".

10. In March 1980 the appellant lodged his claim for a pension. In May of that year, he was referred by the Commission to an orthopaedic surgeon who took x-rays of the appellant's back and diagnosed lumbar spondylosis. Those x-rays were later examined by a Departmental medical officer who was of the opinion that the appellant's condition was in keeping with normal wear and tear for a man of his age.

11. The Tribunal had before it medical evidence from two doctors, the Departmental medical officer and a Dr. Seaton, who was asked for his opinion by the Legal Aid Office, acting for the appellant. The Tribunal tested the severity of the original trauma and its relation to spondylosis by reference to symptoms, and disabilities (or the lack of them) and the examinations which have taken place since.

12. The evidence of the Departmental medical officer was contained in a report made pursuant to s.48 of the Act. The report concluded that the appellant's disability could not be attributed to his war service in any way. Dr. Seaton, however, was of the opinion that in some part, the appellant's spondylosis would have its origin in war service and that some causative relationship could be said to exist.

13. The Tribunal found that it was satisfied beyond reasonable doubt that there was not the necessary connection between the condition and war service and, affirming the decision of the Commission, rejected the claim for a pension.

14. The principal submission for the appellant is that the Tribunal could not be satisfied beyond reasonable doubt that the necessary connection did not exist.

15. Counsel for the respondent submitted that this was not a case where the Tribunal displayed a "mere preference" for the evidence of one medical expert over the other. He submitted that the present case is the very one postulated by Murphy J. in Repatriation Commission v. Law [1981] HCA 57; (1981) 36 ALR 411 where he said (at p 414):

"A conflict of testimony ... does not require that the
claim be upheld ... although it would often 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 ... (B)ut in law,
because there was evidence which, if accepted,
disproved the claim, the Tribunal was entitled to be
satisfied beyond reasonable doubt that there were
insufficient grounds, and, were it not for errors of
law, it is difficult to see how the decision could be
disturbed."

16. Counsel then presented a number of objective facts which he claimed were sufficient to disclose a manifest error in the premise upon which Dr. Seaton's report was based, namely that the appellant "did sustain quite a severe back injury on Service". This premise may be insecure, but so is the basis upon which it is attacked. I mention, as relevant to this argument, and generally, some of the matters raised:

1. The appellant did not seek treatment for the injury
at the time of its occurence, although he did seek
treatment for some minor complaints unassociated
with the injury while stationed in the Trobiand
Islands.

2. Following the incident, the appellant continued
with the activity (digging the well) which was said
to have given him the injury in the first place.

3. He did not describe to anyone at or about the time
of the injury the occurrence of a trauma of any
severity.

4. A short time after sustaining the injury, the
appellant participated in a football match.

5. He said nothing about the injury at the time of his
medical examination on discharge.

17. These matters are based upon the premise that any trauma sufficient to have a connection with the spondylosis subsequently diagnosed would have resulted in different conduct. One difficulty with this approach is that there is an absence of medical evidence to indicate what course of conduct would have been indicated. Counsel submits that this is a matter of common sense, but I believe in a case such as the present there should be appropriate medical evidence if the factors are to be relied upon.

18. Except insofar as the medical evidence is descriptive of x-rays, it seems to combine fact-evaluation with medical opinion. This is of course, not uncommon. Expert medical evidence is, however, evidence of opinion concerning medical matters. Except when the facts are within the personal knowledge of the medical practitioner, a conclusion must be based on their separate assessment. To be of value, his medical opinion has to be linked with the facts, as found by the Tribunal. Put another way, a conclusion expressed by a medical practitioner usually proceeds on assumed facts, which have to be proved. By the Act itself, Repatriation medical officers are required to state their views as to the attribution of a particular condition to war service. This necessarily involves them in taking a view of the facts. The Tribunal must, however, form its own view of the facts from the material before it and look at the medical evidence in light of the views thus formed. The relevant principles to be applied were discussed by Aickin J. in Law's case (infra). Referring to s.107VH, he said (at p.424):

"I am satisfied that the operation of that section ...
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. The
reference in sub-s. (2) to the "completion of its
consideration in a proceeding on review" is to the
entire process of examining the evidence and
determining whether the Review Tribunal is satisfied
beyond reasonable doubt that each of the factual
requirements has not been established. Sub-section (2)
then directs the Review Tribunal as to what it must do
in the light of its determination, i.e. to set aside
the decision if it is not so satisfied, and to uphold
the decision if it is so satisfied."

19. In the present case, it cannot be said that the Tribunal formed its own view of the facts, although it did express concurrence with some of the statements of facts set out in the doctors' reports. The Repatriation medical officer said in his report that it was "very unlikely" that there was a connection between the incident and the condition, and further, that "the veteran's claim appeared unlikely". The conclusion expressed by him was, as I have mentioned, that the condition was not attributable to war service. It is not altogether clear what view the Repatriation medical officer took of the facts and what credence he gave to the appellant's account of them. Indeed, it is not clear that he had in mind all the facts so far as they are available. Annexed to his report was a statement of the nature of spondylosis, its normal degenerative character, and what might be looked for to indicate whether the original degenerative process had been accelerated or affected by a trauma. This could be useful material for the Tribunal, once it had the facts. The onus could not be satisfied by reliance on the conclusion of the Repatriation medical officer.

20. The Tribunal did cause enquiries to be made pursuant to s.107VZ of the Act, concerning the appellant's activities after discharge, but the results were inconclusive.

21. The Tribunal rejected medical opinion tendered for the appellant, that of Dr. Seaton, on the basis of what it understood to be a palpable error in it. To this I have already referred. I am not sure that the Tribunal was correct in its interpretation of what he had to say, although his report suffered from the same defect as that of the Repatriation medical officer in that it was an amalgam of fact - evaluation and opinion. One view which is open is that Dr. Seaton was expressing a view as to the severity of the original injury based upon the symptoms shown after discharge and what the appellant did in relation thereto. If his view was accepted, namely that the original trauma was very severe, the remainder of the medical evidence would support the claim for a pension.

22. The dissenting member of the Tribunal took a different view as to Dr. Seaton's report, one rather along the lines that I have suggested as a possibility, and regarded the case as one where there were conflicting medical opinions. In those circumstances, he could not be satisfied beyond reasonable doubt that the appellant's incapacity had not been contributed to in any material degree by the conditions of his war service.

23. My own view is that what is said in the reasons of the majority when examined in the light of the evidence available, does not expose a case for being satisfied beyond reasonable doubt that the necessary connection did not exist. In saying this, I am of course fully aware that fact-finding is a matter for the Tribunal, and not for this Court.

24. There are two main difficulties with the reasons, one I have already adverted to, namely the acceptance of conclusions by medical practitioners which are based upon facts as well as medical opinion, without the factual basis being established. The second is that, given such evidence as there was relating to medical matters, the factors which could negative a connection between the injury and the condition were not established.

25. I am of the opinion that the Tribunal, if it had correctly directed itself on the law, could not have come to the conclusion that it was satisfied beyond reasonable doubt that there were insufficient grounds for granting the application. This is a matter of law. In the circumstances the appeal must be allowed. In that event the appellant seeks an order that the Commonwealth of Australia be liable to pay to the appellant a pension in respect of his incapacity. The quantum of the pension has to be assessed separately. Counsel for the Commission, on the other hand, has submitted that if I were of a view adverse to its submissions, the matter should be remitted for further hearing.

26. There is some merit in the latter approach because my view is that the matter has not been fully explored and there are deficiencies in the Tribunal's analysis which could possibly be remedied. On the other hand, there seems to be no sufficient reason why the appellant should have to contest another case in the light of the circumstance that, as things stand and on the basis of the material before the Tribunal and the way it dealt with it, the onus borne by the Commission has not been discharged. In my view, therefore, I should accept the submission of the appellant and order that he be admitted for a pension.

27. I should perhaps add that in expressing its decision formally, the Tribunal mistakenly incorporated the formula given in s.107VH(2)(b), which relates to a case where the decision of the Commission was not one refusing a pension. This does not at all accord with what is otherwise stated in the reasons, and I think I can disregard it and accept as the decision both the last sentence of the reasons and what clearly appears from them.