Re William Russell Hooke v Repatriation Commission [1988] FCA 25 (11 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: WILLIAM RUSSELL HOOKE
And: REPATRIATION COMMISSION
No. G578 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Spender(1), Burchett(1) and Einfeld(1) JJ.

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal in relation to an application under the Veterans' Entitlements Act 1986 - Meaning of "reasonable hypothesis" - Whether the material raised a reasonable hypothesis - Question of fact for the Tribunal - No error of law shown.

Veterans' Entitlements Act 1986, ss.9, 120.

HEARING

SYDNEY
11:2:1988

Counsel for the Applicant: Mr. J.H. Laurence, QC with Mr. G. Miller

Solicitor for the Applicant: Australian Legal Aid Office

Counsel for the Respondent: Mrs. P. Flemming, QC with Mr. A. Robertson

Solicitor for the Respondent: Australian Government Solicitor

ORDER

The appeal be dismissed.

The applicant pay to the respondent its costs of the appeal.

NOTE: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an appeal, so called, from a decision of the Administrative Appeals Tribunal, Veterans' Appeals Division, which affirmed a decision of the Veterans' Review Board, given on 6 September 1985, affirming a decision of the Repatriation Board to reject claims made by the applicant in respect of conditions of oesophageal reflux and lumbar spondylosis. The applicant has been diagnosed as suffering from these conditions, which he alleged were war related in a sense appropriate to attract the operation of s.101 of the Repatriation Act 1920, or (as he later claimed under the then newly enacted provisions of the Veterans' Entitlements Act 1986) were war-caused within the meaning of s.9 of that Act. This Court's jurisdiction is, of course, limited to the determination of questions of law.

2. The applicant served in the Royal Australian Air Force from 28 July 1943 to 20 March 1946, and engaged in operational service in the South-West Pacific, New Guinea and elsewhere. After the war, the applicant worked, as an employee and also as an independent contractor, doing house painting, over a period of some 39 years. Prior to his discharge, he had been medically examined, and the record of that examination indicates that "all body systems were normal". On 12 July 1983, the applicant lodged with the Department of Veterans' Affairs a claim for pension for incapacity from "nervous dyspepsia and hip ache". Medical assessment of the disabilities alleged resulted in a diagnosis of oesophageal reflux and lumbar spondylosis, and the applicant's claim has proceeded upon the basis that those diagnoses are correct. Nevertheless, there seems to be no doubt that the applicant has also suffered from nervous dyspepsia.

3. During the course of his service, the applicant was involved in rubbish removal duties at Noemfoor Island. For a period which he was unable to estimate more accurately than that it may have been one, two, or three months, he was required in the course of some part of these duties to crush empty jam and fruit tins, by treading on them, as an anti-malarial measure - to prevent them becoming breeding places for mosquitos. He complained that crushing the tins caused him to get pain in his hip. Also, during these duties, he was required to assist another man in lifting large garbage cans of kitchen swill. He complained that his slight physique gave him difficulty in carrying out this task, and that he suffered a lot of indigestion at this time. He also described nervous problems, particularly when the planes flew overhead.

4. The applicant's indigestion was diagnosed at about the time of his discharge as nervous dyspepsia. Over the years he continued to suffer similar symptoms. In about 1983 he noticed for the first time that he was regurgitating food. It was also then that for the first time this symptom was raised with a medical practitioner. Nevertheless, the applicant maintains that the symptoms feel "very similar as the indigestion that I have said about my war service".

5. Two specialist gastroenterologists gave evidence at the hearing before the Tribunal. Dr. C.A. McDonald saw the applicant on 14 August 1986. He diagnosed the applicant as suffering from gastro-oesophogeal reflux. He said this condition "is usually due to a combination of a number of factors", and added:

"I think it likely that Mr. Hooke would have
gone on to develop reflux whether he had had
his war service or not. However, there is a
possibility that the war service may have
contributed to the problem."

The mechanism he postulated was by way of the heavy lifting, leading to reflux, which in turn may have damaged the oesophogeal mucosa, predisposing him to further reflux.

6. But the other specialist, Dr. R.C. Pirola, when asked:

"So we are therefore quite unable to exclude
the possibility that his war service actually
caused even his reflux problem forty years
later, we cannot exclude it can we?

answered:

"I think we can beyond reasonable doubt on the
basis of that fundamental point that I made
earlier that if those conditions were causing
symptoms in the 1940s then by this time he
would be severely incapacitated by the
progressive development of that condition."

It is true that the doctor also said that he did not think one can exclude the possibility of any connection whatever between the nervous dyspepsia and the gradual developing at a much later stage of oesophogeal reflux, but he added:

"I just regard it as very unlikely, that is
all."

He also said of the suggestion that there was some connection:

"I really do not think so."

7. Faced with this conflict of evidence, or perhaps rather of emphasis in the interpretation of the evidence, between the specialists, the tribunal noted that Dr. McDonald "was not prepared to allege there was any more than a possibility of the oesophogeal reflux being war-related." It decided that it was "satisfied beyond reasonable doubt to rely upon Dr. Pirola's ... evidence" that a causal connection could be excluded beyond reasonable doubt. The tribunal also reached the conclusion that "no reasonable hypothesis has been made out to connect the oesophogeal reflux with operational service."

8. So far as the claim in respect of lumbar spondylosis is concerned, the applicant suggests this condition is related to the work he did stamping on tins, which is said to have caused pain in his right hip, and the heavy lifting of cans of swill. There was no evidence of any particular injury sustained in the course of either of these activities.

9. After his discharge, while doing building work, the applicant complained of back ache, and was medically examined by a repatriation medical officer. The report stated that there was "no deformity" in his spine and that "movements (were) full and painless". An x-ray was reported as showing, as at 1 November 1949, no abnormality in the lumbar spine. As has been said, the applicant worked for some thirty-nine years as a painter.

10. The applicant relied on the report of Dr. W.G. Taylor, a general surgeon. Dr. Taylor's report stated:

"His condition is characteristic of disc
lesions ... . ... It would be fully
justified if the responsibility for his
painful back originated with the injury when
sustained due to the fall on the bottle (in
his oral evidence, he discounted this
suggestion) and prior to that when he had to
do prolonged periods of stamping on cans in
order to prevent them from containing water.
There was also the further exacerbation of
lifting heavy cans of swill and he is only
slightly built."

The doctor had earlier in his report referred to the crushing of the tins, and said:

"He gradually developed a painful back", and
"His back was also irritated by the necessity
to lift heavy containers of swill".

In his oral evidence, Dr. Taylor asserted the applicant had degenerative changes which "have obviously developed later" than his service in the war. He added: "I should think they would probably begin to develop some time in his 40s." (The applicant was aged 18 in 1943.) He said that the pain from stamping on the cans must have been muscular or involved the ligaments "because, I mean, he had a normal spine some years later." He added:

"I would say that ... it may have made his
back more liable to degenerative changes than
a normal back; I think I could say that."

It was put to him "that the hypothesis that it was due to the work he did in the army (sic) can at best be said to be speculation, would that be fair?" He answered:

"I think so ... (A)ll we can say is that the
man has a history of back ache in the service
and back ache in a sense in civilian life.
Whatever the pathology or the cause of it is
he has given that history. When we come to
examine him now in 1986 he has got this
degenerative back. Those are the only things
that we really know, and I feel it is
reasonable to suppose that he started off his
back trouble in the army. I cannot say
anything more about it. It is, as you say,
speculation."

11. On the other hand, Dr. N. Betts, orthopaedic surgeon, stated in his report:

"It is my opinion that a reasonable hypothesis
of connection between his war service and
lumbar spondylosis cannot be made. ... The
tin crushing exercise, as I interpreted Mr.
Hooke's statement, would not involve forces
on his spine such as to produce lumbar
spondylosis. To produce lumbar spondylosis
it is necessary to sustain either a fairly
major single episode of trauma, or multiple
trauma in the nature of excess bending, heavy
lifting or rotational activities. None of
these are satisfied by Mr. Hooke's
description."

12. In cross-examination, Dr. Betts conceded that he could not "exclude the possibility as being an unreasonable guess that it did start during the war". Asked:

"It is a reasonable hypothesis that it could
have?"

He answered:

"It could have, yes."

13. Again, the tribunal was faced with the views of two specialists, who differed to some extent. The tribunal concluded that:

"(T)he most that can be postulated on the
evidence is that the occurrence of
degenerative change during operational
service, predisposed the applicant to the
pathological condition which is called lumbar
spondylosis."

The tribunal commented:

"The X-rays of 1949 do not support its
existence at that stage after the cessation
of hostilities."

The tribunal concluded:

"that the material before it does not raise a
reasonable hypothesis connecting the
applicant's lumbar spondylosis with the
circumstances of the operational service
rendered by the applicant. The question of
reasonability of the hypothesis is for the
Tribunal to decide not the witnesses."

14. On the appeal, we were referred to s.9 of the Veterans' Entitlements Act 1986 and particularly to s.9(1)(b) and s.9(1)(e). Reference was also made to s.9(2). So far as the argument in respect of s.9(1)(e) is concerned, it is unnecessary to say more than that the 1987 amendment to this provision removes the hiatus that formerly appeared to be in it, upon which the argument was founded. The real issue in the appeal turns on whether the tribunal properly decided the question raised by s.9(1)(b) in accordance with the requirements of s.120. There is no dispute that, although the applicant originally applied under the Repatriation Act 1920, his case now falls to be decided in accordance with sections 9 and 120 of the Veterans' Entitlements Act 1986.

15. Section 9(1)(b) provides that a disease contracted by a veteran shall be taken to be a war-caused disease if it arose out of or was attributable to any eligible war service rendered by the veteran. Section 120(1) and s.120(3) provide as follows:

"(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.

...

(3) In applying sub-section (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."

16. Section 120(3) makes the fate of an application, such as that with which this appeal is concerned, depend fundamentally on whether, after consideration of the whole of the material before it, the tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the applicant. Sub-s.(5) makes it clear that there is no presumption a priori that a disease is war-caused. Nor, having regard to sub-s.(6), is there any onus upon any party of proving any matter relevant to the determination of the application.

17. Prior to the argument of the appeal in this matter, a Full Court of this Court heard argument in an appeal which turned upon the true construction of s.120. The decision was subsequently given in that appeal, and is reported: East v. Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518. The joint judgment in that appeal, at pages 533-4, discusses the proposition that for an hypothesis to be reasonable it must possess some degree of acceptability or credibility, and that for the material to raise a reasonable hypothesis that hypothesis must find some support in the material, so that the material does not merely leave it open, but points to it as a reasonable hypothesis. The joint judgment of the Full Court accepts that proposition, and comments:

"A reasonable hypothesis requires more than a
possibility, not fanciful or unreal,
consistent with the known facts. It is an
hypothesis pointed to by the facts, even
though not proved upon the balance of
probabilities."

18. There is nothing in the reasoning of the tribunal in the present case which is inconsistent with the terms of s.120 as construed by the Full Court in East's case. Applying the law, as it was declared to be in East's case, the conclusions arrived at by the tribunal were clearly open to it. It was a matter for the tribunal whether it regarded the hypothesis by which each of the applicant's claims was supported as reasonable. On the evidence, the tribunal considered that the facts did not point to either hypothesis. It reached its view, in each respect, after a fair summation of the relevant material, and by a process of reasoning which disclosed no error of law. This Court has recently emphasised in Apthorpe v. The Repatriation Commission (Davies, Lockhart & Gummow JJ., unreported, 25 November 1987) that, where Parliament has committed to the tribunal a decision which requires an exercise of judgment, it is necessary for an appellant to show an error of law in that exercise of judgment before the tribunal's decision can be disturbed on appeal. Reference was made to what Lord Brightman said in Puhlhofer v. Hillingdon London Borough Council [1986] UKHL 1; (1986) 1 AC 484 at 518:

"Where the existence or non-existence of a
fact is left to the judgment and discretion
of a public body and that fact involves a
broad spectrum ranging from the obvious to
the debatable to the just conceivable, it is
the duty of the court to leave the decision
of that fact to the public body to whom
Parliament has entrusted the decision-making
power save in a case where it is obvious that
the public body, consciously or
unconsciously, are acting perversely."

A decision under s.120(3), that the tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting a disease with the circumstances of the particular service rendered by the applicant, is just such a decision as falls within Lord Brightman's dictum. In the present case, there is no reason to think that the tribunal was in error.

19. The appeal should be dismissed with costs.