Borrett v Repatriation Commission [2000] FCA 1829 (15 December 2000)

Last Updated: 18 December 2000

FEDERAL COURT OF AUSTRALIA

Borrett v Repatriation Commission [2000] FCA 1829

ADMINISTRATIVE LAW - Repatriation Commission - whether the AAT erred in holding the applicant's husband's death was not war-caused - whether the AAT made factual findings as to causation rather than deciding whether a reasonable hypothesis was raised on the evidence - where the AAT held there was no reasonable hypothesis connecting the death and the war service - where the AAT was satisfied beyond reasonable doubt that the death was not war-caused

Veterans' Entitlements Act 1986 ss 120 & 120A

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 followed

Repatriation Commission v Deledio (1998) 83 FCR 82 followed

Repatriation Commission v Bey (1977) 79 FCR 364 distinguished

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 followed

Dixon v Repatriation Commission (1999) 29 AAR 235 followed

MARGUERITE BORRETT v REPATRIATION COMMISSION

N 743 OF 2000

TAMBERLIN J

SYDNEY

15 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N743 OF 2000

BETWEEN:	MARGUERITE BORRETT APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	15 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for review is upheld.

2. The decision of the AAT is set aside.

3. The matter is remitted to the AAT for determination in accordance with law.

4. The respondent is to pay the applicant's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N743 OF 2000

BETWEEN:	MARGUERITE BORRETT APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	15 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant, Marguerite Florence Borrett, is the widow of John Borrett ("the veteran"). The veteran was born on 23 December 1915 and the applicant on 9 June 1919. The applicant and the veteran married on 20 November 1942.

2 The veteran served in the RAAF during the Second World War. The whole period of his service (from 25 April 1942 to 8 January 1946) constituted operational service under the Veterans' Entitlements Act 1986 ("the Act"). During his war service the veteran was seconded to the Royal Canadian Air Force ("RCAF") from 11 December 1942 to 4 November 1943 during which time he attempted a pilots' course. He was unsuccessful in qualifying due to illness and returned to Australia. He later served in the Pacific area.

3 The veteran died on 6 February 1972 aged 56 and the cause of death was certified as being terminal carcinoma (three years, six months) and cancer of the large colon. Although the death certificate certified colon cancer as a cause of death, the clinical evidence was that the veteran had suffered cancer of the rectum.

4 On 19 February 1998 the applicant lodged a claim with the Repatriation Commission ("the Commission") for a widows' pension pursuant to the Act. This claim was refused by the Commission on 24 February 1998 and on review by the Veterans' Review Board affirmed the Commission's determination. The applicant then sought review by the Administrative Appeals Tribunal ("the AAT").

5 As the veteran had operational service as defined in s 6A of the Act the way in which the claim must be assessed is set out in s 120 of the Act which relevantly provides:

"120 Standard of proof

(1) Where a claim under Part II for a pension in respect of ... the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that ... the death was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination

...

(3) In applying subsection (1) or (2) in respect of ... the 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:

...

(c) that the death was war-caused or defence-caused;

... 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.

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, ....

...

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application." (Emphasis added)

6 Since the applicant's claim was lodged after 1 June 1994, s 120A of the Act also applies. It provides that:

"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

...

(3) For the purpose of subsection 120(3), a hypothesis connecting ... the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2)

or (11); or

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

7 In the present case it is not disputed that a Statement of Principles ("SoP") has been made and that s 120A has been satisfied.

8 In Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 the High Court considered s120 and said at 571:

"The position may be summarised as follows: (1) First, sub-s (3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." (Emphasis added)

9 Section 120A was inserted into the Act after that decision. The Full Federal Court expanded the two step process to take s 120A into account in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92 in the following terms:

"1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...

3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.

4. The tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (Emphasis added)

THE AAT'S DECISION

10 The hypothesis contended for by the applicant before the AAT was that the veteran had a drinking habit arising out of his war service which contributed to his rectal cancer; that the veteran drank regularly in order to relax; and that this habit originated as a result of his service in Canada.

11 The matters relied on to point to the hypothesis were as follows:

* that the veteran drank little before service;

* that the veteran's service when stationed in Canada at the Flying School was very stressful and that he was affected by incidents that occurred there;

* that the flying course was arduous and that the veteran failed the course as a result of sickness and was deeply disappointed by his failure;

* that the veteran continued to drink alcohol whilst in service;

* that the veteran had a changed personality after his return from service, was nervy and disturbed, and experienced severe anxiety;

* that the veteran maintained a heavy drinking habit which began, as far as the applicant was aware, six months after his war service whereby he used alcohol for relaxation;

* that the veteran's heavy drinking commenced with his first post-war job; and

* that a psychiatrist, Dr Gertler, expressed the opinion that the veteran had developed a pattern of alcohol consumption during the war which continued after service.

12 In seeking to raise the hypothesis the applicant relied upon factor 5(c) in Instrument No 25 of 1996, the relevant SoP, which provided that a minimum factor for a reasonable hypothesis to be raised is:

"(c) Drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) within a 25 year period before the clinical onset of malignant neoplasm of the rectum".

13 After setting out the background facts and the legislative provisions the AAT said:

"9. It will be seen therefore that the Applicant's case depends upon two hypotheses. The first, to conform with the SOP, is that the Deceased's alcohol intake equated to 250 kilograms of alcohol within any 25 year period before the clinical inset of cancer of the rectum. The second hypothesis is that the Deceased's habit of drinking alcohol was caused by or contributed to by the incidence of his war service."

14 There was evidence before the AAT, given by the applicant, that from about six months after returning home the veteran would drink three to six schooners of beer every day after work, and that he also drank beer after golf on Sundays, but he did not drink at home. In a document dated 21 August 1992 the applicant stated that the veteran drank three to four beers per day, with the odd glass of wine, and at a later stage during 1998 she stated that the veteran drank with a group after work every day consuming three to six drinks, usually schooners. It is not in dispute that a standard drink (seven ounces) contains ten grams of alcohol, whereas a schooner (fifteen ounces) contains twenty grams of alcohol. The AAT accepted that even if the veteran drank at the lower range evidenced by the applicant he would easily satisfy the requirements of the SoP.

15 The AAT next considered that apart from his work there did not appear to have been any pressure on the veteran to drink, and that his post service drinking took place in the context of his work as a salesman and later as a small business proprietor entertaining, or maintaining goodwill with customers. It says that the evidence was that he never drank to excess and that he did not drink at home. Some reference is made to the opinion of Associate Professor Mattick who gave evidence for the Commission to the effect that he did not believe that the term "alcohol habit" was appropriate in this case. It was not a term that the Professor said featured in any classification system and although the veteran may have drunk regularly there was no evidence in the view of the Professor that his drinking behaviour was habitually driven by any service related events. This opinion was accepted, although it was noted that the Professor took the view that the veteran did drink sufficient alcohol to satisfy the requirements of the SoP.

16 The AAT referred to the evidence that the veteran drank alcohol prior to service but noted that on his entry medical examination into the airforce the veteran had declared he drank a "little". The AAT accepted that the veteran was under pressure during his service and that he had been bitterly "disappointed" when he was rejected for air crew after spending months in Canada at the pilot's school. Reference was made to the evidence of a contemporary of the veteran during initial training in Canada, Mr Graham, who testified as to the intense stress suffered by those in training and the dangerous conditions in which the trainees operated. He said that one of the worst things in life at that time was to be "scrubbed" from the training course and not to qualify, and that those in this position were devastated. He described the experience as "earth shattering", and remarked that he met the veteran after the war and found him to be quieter, nervous and unsure in contrast to his former experience of the veteran. Mr Graham's evidence was to the effect that the veteran drank while they were training in Canada but that most drinking was done off the base and at weekends. Drinking was on a limited basis because the trainees had to be fit for flying during the week, and it was an offence to arrive at base under the influence of alcohol.

17 The AAT accepted that on the evidence the veteran would have been very disappointed to have failed his flying course and that the sense of failure was significant. Considerable emphasis is placed in the AAT reasons on the applicant's evidence that to her knowledge the veteran did not drink when he was discharged from RAAF but took it up six months later at which time he began employment with Remington Rand typewriters as a salesman and drank with work mates after work. During the six month period after discharge from the RAAF the veteran was unemployed and the applicant gave evidence as to the intense psychological distress manifested by the veteran during that period leading up to his employment.

18 The evidence of Dr Gertler, a psychiatrist called by the applicant, was that the veteran became anxious as a result of his war time experiences and that anxiety may well have become chronic and alcohol served as a form of self medication. The AAT did not accept these reasons and stated there was simply no evidence for the statement by Dr Gertler that the veteran drank daily whilst in Canada.

19 The AAT then referred to a passage in Repatriation Commission v Bey (1977) 79 FCR 364 at 372-373 to the effect that a reasonable hypothesis requires something which is more than a mere possibility and which is not fanciful, unreal, or inconsistent with the known facts. It must be a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.

20 Essentially, the reasoning of the AAT is set out in the following paragraphs:

"29. Although later cases were cited to us by Mr M Smith of counsel who appeared for the Applicant, we do not regard them as of assistance and they can be distinguished in this case. In this matter there is no evidence as to the Deceased's drinking patterns whilst on service and there was clear and unequivocal evidence from his wife that he only began to drink alcohol six months after discharge from the RAAF when he found employment as a salesman.

30. It has been suggested that the disappointment in failing his flying course so affected the Deceased that he suffered a personality change and became anxious and lost self confidence and so self medicated with alcohol. To us this hypothesis is based upon no more than suspicion and conjecture and has no basis in fact. The hypothesis that the Applicant's post service drinking was causally related to his service is unsupported by any facts and hence cannot be classified as reasonable.

31. Even if the hypothesis referred to above was raised, we are satisfied beyond reasonable doubt, based on the Applicant's own evidence, that the Deceased only began to drink to any extent after he found employment as a salesman and that he continued to drink both as a means of relaxation and as an aid to maintaining goodwill with customers. This continued when he had his own business. At no time was his partaking of alcohol a habit, for example he did not drink at home, but his drinking was a social lubricant and not in any way connected with his service., Thus we are satisfied beyond reasonable doubt that there is no sufficient ground got determining that the death of the Deceased was attributable to his war service.

32. For the reasons above therefore we affirm the decision under review."

SUBMISSIONS

21 In substance the applicant's submissions were twofold. First, it was said that the AAT failed to address the claim in accordance with the four-step process set out in Repatriation Commission v Deledio. It was submitted that the AAT did not determine whether the material before it pointed to some fact or facts which give rise to the hypothesis, but engaged in a fact finding exercise and asked whether the facts supported a reasonable hypothesis. It was said that the AAT reached conclusions as to the facts in determining that the hypothesis of a causal relationship between post service drinking and the service was "unsupported by any facts": see par 30 of the AAT decision. The applicant says that, in accordance with Repatriation Commission v Deledio, the AAT should not engage in a fact finding exercise, in the sense of weighing conflicting material until the final stage when it became necessary to determine whether it was satisfied beyond reasonable doubt that the death was not war-caused.

22 Particularly it was said the AAT prematurely assessed the weight of Dr Gertler's opinion by reference to other evidence; incorrectly stated that there was no evidence as to the veteran's drinking patterns while on service; and stated that there was clear and unequivocal evidence from the applicant that the veteran only began to drink alcohol six months after discharge from the RAAF. It is submitted that these statements and misstatements reinforce the conclusion that the AAT fell into error by prematurely undertaking a factual enquiry.

23 The second submission for the applicant was that the AAT erred in law in finding that the raised hypothesis was disproved beyond reasonable doubt because there was no evidence capable of supporting this finding. The applicant says that the Tribunal's finding in this respect was erroneous and was infected by its improper approach to the assessment of whether the hypothesis had been raised and that the material cited by the AAT as to disproving the hypothesis was not capable of disproving it to the required standard.

REASONING ON REVIEW

24 The first task of the AAT was to consider all the material which was before it and determine whether that material pointed to some facts which support the hypothesis claimed. This approach was applied by Mason CJ, Deane and McHugh JJ, in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 414:

"The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (`the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true." (Emphasis added)

25 After discussing s 120(3) in some detail their Honours said at 415:

"Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between he incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion."

26 The relevant principles are further explained by Mason CJ, Gaudon and McHugh JJ in Byrnes v Repatriation Commission (1993) 177 CLR 565 at 569-570 as follows:

"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable ...

In some cases, the hypothesis may assume the occurrence or existence of a `fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellants sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered."

27 In Repatriation Commission v Bey the majority of the Full Court said at 372-373:

"This Court restates position established by East, Bushell and Brynes. A `reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word `reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."

28 In Dixon v Repatriation Commission (1999) 29 AAR 235 at par 24 Wilcox J expressed the principle on which the applicant relies in the present case as follows:

"However, at this stage the decision-maker is not concerned with the accuracy of the material giving rise to the hypothesis; the decision-maker is still working under s 120(3). The two steps additional to those identified in Byrnes - that is, steps 2 and 3 in the Deledio formulation - are simply limitations on the result that may be obtained in connection with the first of the two Byrnes steps. As the Full Court said in Deledio it is only at the step 4 stage of the process that the Tribunal will be required to find facts from the material before it.'"

29 In the present case it is said that the AAT erroneously fused together steps 3 and 4 of the process outlined in Repatriation Commission v Deledio. In my view this submission is made out.

30 The critical paragraphs of the reasoning, namely pars 29-31, have been set out above. The AAT makes its determination that no reasonable hypothesis is raised in par 30. Whether a hypothesis is established and is reasonable is a matter of fact. However, in my view, these paragraphs state the position in an unsatisfactory manner and demonstrate that the AAT erred in law. Firstly, it was wrong to assert in par 29 that there was no evidence of the veteran's drinking patterns whilst on service. There was evidence that he had drunk prior to service. There was also evidence from Mr Graham and Dr Gertler as to the drinking of the veteran whilst in service. These are important matters. Counsel for the respondent correctly points out that earlier in the reasons the true position has been stated but the misstatements of evidence on critical aspects when the AAT comes to evaluate whether a reasonable hypothesis was raised point to error.

31 Secondly, it is evident from the reasoning that the AAT rejected the hypothesis not on the facts raised by the material, but on the facts as found by the AAT. As the last sentence of par 30 indicates, the AAT discounted evidence pointing to a reasonable hypothesis and in so doing wrongly embarked on an evaluation of the evidence at that point to decide questions of fact and degree prematurely and contrary to the statutory scheme. This view is strengthened by the AAT's treatment of evidence throughout its decision, particularly statements such as "We accept Associate Professor Mattick's opinion as to the lack of any habit of drinking": par 15. The AAT has prematurely preferred one line of expert evidence to another, namely the evidence of Associate Professor Mattick has been preferred to that of Dr Gertler. The statements by Dr Gertler to the effect that the level of alcohol consumption prior to the war was minimal was consistent with the evidence of the applicant and the proposition that it became regular during the war is consistent with the evidence of Mr Graham. The statement that it was never excessive until after the war is also consistent with the evidence. The assertion that the veteran's drinking was sufficient to satisfy the requirements of the SoP was also correct. Dr Gertler said that it appeared that the veteran became anxious as a result of the war-time experiences and that the anxiety may well have become chronic and alcohol become a form of self medication. This is consistent with his pattern anxiety after the war and the subsequent increase in alcohol consumption.

32 The Commission relied in submissions on the decision in Repatriation Commission v Bey where the Full Court affirmed the decision of the AAT that a veteran's rheumatoid arthritis was not linked to his service in Vietnam. In that case the majority upheld the AAT's right to dismiss evidence when evaluating whether a reasonable hypothesis is raised. That case is, however, distinguishable from the present because in Repatriation Commission v Bey the evidence of the orthopaedic surgeon in question was discounted on the basis that his report did no more than misinterpret the evidence of an expert rheumatologist called on behalf of the Commission, which the surgeon lacked relevant expertise in relation to rheumatology. No such circumstances exist in the present case where there is no challenge to the expertise of Dr Gertler, where evidence was dismissed on the basis that it depended on what he was told by the veteran. As noted earlier in these reasons, Dr Gertler's factual summary accorded with the evidence of the applicant and Mr Graham.

33 It cannot be said that the evidence of the applicant, Dr Gertler, and Mr Graham does not point to a reasonable hypothesis. It is evident that the veteran experienced serious psychological disturbances in the period shortly after the war which points to a connection with war service. That the veteran's drinking problem may not have begun until he began work six months later does not of itself make the hypothesis unreasonable. The pressure of work may have been a contributing factor to the veteran's drinking problem, but this does not preclude the veteran's war service from being a cause of the dramatic increase in his use of alcohol. The AAT's conclusion demonstrates, in my opinion, that it erroneously engaged in a fact-finding exercise and did not evaluate the hypothesis raised on the material before it

34 In par 31 of the reasons the AAT considered whether it was satisfied beyond reasonable doubt that the death was not attributable to war service. Whether the AAT was so satisfied is, of course, a matter of fact to be determined by it. However, in my view, the erroneous approach adopted in relation to whether any reasonable hypothesis was pointed to also infected the AAT's reasoning on this aspect. In Dixon v Repatriation Commission Wilcox J identified an error that is likely to arise when the AAT does not keep its evaluation of a hypothesis raised by the material and its fact finding role separate. In my view his Honour's words, at 243, are apposite to this case.

"The question whether a decision-maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision-maker will rule against a claimant simply because he or she is not persuaded the claimant's story is probably true. Although the decision-maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision-maker is likely to reject the application even though he or she thinks the claimant's story may possibly be true." (Original emphasis)

35 The statement that the veteran only began to drink to any extent after he found employment as a salesman and that he continued to drink both as a means of relaxation and as an aid to maintaining goodwill with customers is not inconsistent with alcohol induced relaxation being also engaged in as a consequence of the psychological disturbance caused by his war-time experience. The evidence that during the six month period after service the veteran experienced recurrent nightmares, had restless sleep in which his feet would jerk, and that he suffered from nervous anxiety for years after the war, forcefully point to a conclusion of a connection with war service. In addition, the assertion that at no time was the partaking of alcohol by the veteran "a habit", when there was evidence that he drank three to six schooners (four and a half to nine standard drinks) per working day over a twenty-five year period, is indicative of an erroneous approach. It is true that the AAT discussed this evidence earlier in its reasons, generally in a manner adverse to the applicant's case. However the reasons given by the AAT do not demonstrate that it properly considered the conflicting evidence when it came to making a determination on the question beyond reasonable doubt. In my view the AAT's failure in this respect discloses a further error of law.

36 My conclusion is that the AAT erred in law in the manner in which it assessed the existence of a reasonable hypothesis and also when assessing whether or not the hypothesis was disproved beyond reasonable doubt.

37 I therefore allow the application for review with costs. I seta side the AAT decision and remit the matter to the AAT for determination in accordance with law.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 15 December 2000

Counsel for the Applicant:	M Vincent
Solicitor for the Applicant:	Dibbs Crowther & Osborne
Counsel for the Respondent:	I Butcher
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 2000
Date of Judgment:	15 December 2000