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Federal Court of Australia |
Last Updated: 6 March 2008
FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Money [2008] FCA 118
ADMINISTRATIVE LAW – appeal from
Administrative Appeals Tribunal – whether disease was defence-caused
– meaning of "inability to obtain
appropriate clinical management" –
no error in Tribunal’s finding that there was an inability to obtain
appropriate clinical
management – no error in Tribunal’s finding
that respondent’s idiopathic fibrosing alveolitis was defence-caused
– application dismissed
Veterans’
Entitlements Act 1986 (Cth) ss 31, 70, 196B, 120, 120B
Administrative
Appeals Tribunal Act 1975 (Cth) ss 37, 44
Repatriation Commission v Smith (1987)
15 FCR 327 cited
Somerset v Repatriation Commission [2005] FCA 1399
distinguished
Repatriation Commission v Wedekind [2000] FCA 649
considered
Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80
cited
Baxter Healthcare Pty Limited v Comptroller-General of Customs
(1997) 72 FCR 467 considered
Collins v Minister for Immigration and
Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598 considered
Minister for Immigration
and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 cited
Federal
Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
considered
Johnston v Commonwealth [1982] HCA 54; (1982) 150 CLR 331
cited
Repatriation Commission v Bendy (1989) 10 AAR 323 cited
REPATRIATION
COMMISSION v DENNIS JOHN MONEY
WAD 371 OF 2006
STONE
J
4 MARCH 2008
SYDNEY (HEARD IN PERTH)
THE COURT ORDERS THAT:
1. The application is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM THE VETERANS' APPEAL DIVISION OF THE ADMINISTRATIVE
APPEALS TRIBUNAL CONSTITUTED BY A MEMBER
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BETWEEN:
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REPATRIATION COMMISSION
Applicant |
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AND:
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DENNIS JOHN MONEY
Respondent |
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JUDGE:
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STONE J
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DATE:
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4 MARCH 2008
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PLACE:
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SYDNEY (HEARD IN PERTH)
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REASONS FOR JUDGMENT
1 The issue in the present proceeding is whether the respondent, Mr Money is entitled to a pension under the Veterans’ Entitlements Act 1986 (Cth). Mr Money has a severe respiratory disease known as idiopathic fibrosing alveolitis (‘IFA’). The nub of the issue is whether that disease is ‘defence-caused’ as that term is defined in the Act. Delegates of the Repatriation Commission and the Veterans’ Review Board have answered that question in the negative. The latter decision, that of the Veterans’ Review Board, was reversed by the Administrative Appeals Tribunal which decided that Mr Money’s IFA was defence-caused. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), the Commission appeals from that decision.
2 Before addressing the Commission’s grounds of appeal, it will be convenient to outline the relevant provisions of the Veterans’ Entitlements Act, which provide some explanation of the disease from which Mr Money suffers, and then set out in more detail the history of this matter. As the majority of the Tribunal’s findings of fact are not challenged, except where otherwise indicated, I shall rely on its account of the details of Mr Money’s condition, as well as upon the documents lodged with the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
BACKGROUND INFORMATION
Idiopathic Fibrosing Alveolitis
3 IFA is a rare respiratory disease of unknown cause in which fibrous tissue develops within the lungs. This stiffens the lungs and reduces their capacity to expand, and disrupts the function of the alveoli. The condition progressively reduces respiratory capacity to the point of complete respiratory failure.
4 Although it is common for sufferers to be asymptomatic during the earlier stages of IFA, in later stages coughing, wheezing, shortness of breath and the production of sputum are common. The disease may also lead to clubbing of the fingers or toes although clubbing may also be associated with other lung diseases. Among lung conditions, IFA is the most common cause of such clubbing however not every sufferer will develop clubbing.
5 IFA is difficult to diagnose but its presence may be suggested by chest x-rays. By reducing the elasticity of the lungs, IFA may restrict inspiration and lead to x-rays showing an enlarged heart. This is because during inspiration, the pull of the diaphragm elongates the heart, making it appear narrow. Accordingly, where inspiration is poor, this pull on the heart is reduced and it may appear enlarged. Poor inspiration can, however, be caused by factors other than IFA, including being overweight. Other indications of IFA may be seen in lung function tests or CT scans however the diagnosis of IFA can currently be confirmed only by post-mortem examination of lung tissue or by open biopsy of the lung of a living patient. Given the difficulty of diagnosis it is self-evident that the condition is more likely to be considered by a specialist respiratory physician than a junior doctor.
The Statutory Scheme
6 Section 70(1) of the Veterans’ Entitlements Act provides that the Commonwealth is liable to pay a pension by way of compensation to a member of the Defence Forces who is incapacitated by a "defence-caused disease". Where a disease is contracted before the commencement of defence service, or is contracted during defence service but does not arise out of that service, it will be "defence-caused" if, in the opinion of the Repatriation Commission, the defence service rendered after the disease was contracted, aggravated the disease, or contributed to it in a material degree; s 70(5)(d).
7 In forming this opinion, the Repatriation Commission is required to decide the matter to its reasonable satisfaction; s 120(4). This requires the Commission to ask itself whether it was satisfied on the balance of probabilities; Repatriation Commission v Smith (1987) 15 FCR 327. Section 120 does not impose an onus of proof on the applicant for a pension or on the Commission; s 120(6). Nevertheless, the Commission can only reach the requisite state of satisfaction if two conditions are fulfilled; s 120B(3). First, the material before the Commission must raise a connection between the disease and some particular service rendered by the person. Secondly, where there is a Statement of Principles in force concerning that disease, that Statement of Principles must uphold the contention that the disease is, on the balance of probabilities, connected with the service.
8 Statements of Principles are determined by the Repatriation Medical Authority; s 196B(1). They set out the factors that must be present and must be related to service before it can be said that, on the balance of probabilities, a disease can be connected with the service; s 196B(3). Subsection 196B(14)(d) states that a factor causing or contributing to a disease is related to service if:
(d) it was contributed to in a material degree by, or was aggravated by, that service; ...
9 The Authority has determined a Statement of Principles, Instrument No. 16 of 1998, for IFA. This Statement of Principles holds that, in order for IFA to be connected with the circumstances of defence service, there must have been an "inability to obtain appropriate clinical management" for the condition; see clause 5(a). This applies only where IFA was contracted before or during service (although not arising out of that service), but was materially contributed to or aggravated by that service; see clause 6.
Mr Money
10 Mr Money was born on 7 July 1947. On 14 March 1963, at just fifteen years of age, he enlisted in the Royal Australian Navy where he remained until he was discharged on 13 March 1983. It is not in dispute that he rendered eligible "defence service" for the purposes of the Act from 7 December 1972 until his discharge; see s 68(1).
11 Early in his service with the RAN, Mr Money volunteered to serve in submarines, and was sent to the United Kingdom for training. Mr Money served in the submarine arm of the RAN from 1966 until 1980. He was posted to Exmouth in November 1974, to Sydney in 1978, and finally to Canberra in 1980.
12 In 1963, five months after joining the RAN, Mr Money was diagnosed with acute bronchitis. In January 1966 he had a routine chest x-ray to determine his suitability for submarine service. The x-ray report stated that his "lungs appear clear". The report of a further chest x-ray in 1969 also stated that his chest "appears normal". Again in 1971 a chest x-ray report said that his chest "appears clear". A photograph taken at Mr Money’s wedding in 1971 reveals no clubbing of his fingers at that time.
13 Clinical notes recorded in 1972 state that at that time Mr Money was a "moderately heavy smoker". In 1973, a routine chest x-ray revealed "some heavy markings in a cluster" on the right side and the reporting clinician recommended that these markings be carefully checked.
14 Mr Money recalled having problems with his chest from the time that he was in Exmouth, which was from 1974. In 1976, a routine chest x-ray revealed an increase in the transverse diameter of the heart as well as shadowing obscuring the right heart border. The x-ray report noted that the film appeared to be taken on an incomplete inspiration, which it attributed to Mr Money’s build, and recommended a repeat scan be taken with a deep inspiration. On 28 November 1977, Mr Money had a medical examination following a complaint of back pain which revealed clubbing of his fingers and toes.
15 In June 1978, Mr Money’s x-rays from 1976 were reviewed by the Perth Chest Clinic. The Senior Chest Physician noted that the x-rays demonstrated a heart size at the upper limit of normal, and prominent bronchovascular lung markings. He attributed these signs to Mr Money’s failure to take a full inspiration. The physician noted clubbing of Mr Money’s fingers, but expressed the opinion that, in the absence of any abnormalities of the heart or lungs, this could have been familial.
16 In 1979, a naval clinician recorded that Mr Money suffered from clubbing of fingers in both hands. A follow-up chest x-ray revealed "a little fibroti[c] shadowing at the right base possibly the result of past infection" as well as enlargement of the left cardiac ventricle.
17 In 1980, cardiac enlargement and lung congestion were noted, though this was again attributed to Mr Money’s build and "a rather poor inspiratory effort". In October 1981, another scan indicated that Mr Money’s heart was not enlarged, though the hilar regions were prominent. It was noted that it "would be most helpful to compare this film with the film taken on 15.9.80". In September 1982, it was recorded that Mr Money’s heart was not enlarged, and that although lung markings were accentuated suggesting chronic bronchitis, his lungs were "otherwise clear". It was noted, however, that the previous films were not available for comparison.
18 Mr Money’s discharge medical examination was conducted on 15 September 1982. The examining medical officer noted:
Congenital clubbing of fingers. On several occasions cardiomegaly has been noted on CXR, but investigation has presumed this to be due to inadequate inspiration. Recent X Ray – normal heart size.[Emphasis added]
19 Following his discharge from the Navy in 1983, Mr Money moved to Rockingham, where he commenced seeing a Dr Foong, who referred him to the local asthma foundation on the basis of his respiratory problems. On 7 February 1995, a chest scan revealed a "small area of linear collapse or fibrosis is seen in the left midzone laterally". The radiologist noted that the inspiratory effort was "not good", and recommended a comparison with previous chest scans.
20 In March 2002, Mr Money moved to Geraldton, and there began seeing a local general practitioner, Dr C Y Chin. Dr Chin referred Mr Money to Dr Justin Waring, a respiratory physician, in order to establish the cause of his clubbing. Mr Money’s first appointment with Dr Waring was sometime in June 2002.
PROCEDURAL HISTORY
Pension application
21 On 13 June 2002, Mr Money lodged an application for a disability pension with the Department of Veterans’ Affairs. The application identified the relevant disability as a "breathing disorder". The signs and symptoms were recorded as being "shortness of breath, wheezing – dry cough, difficulty walking distances" and, under the heading, "Medical Diagnosis" was the notation "needs further investigations".
The Repatriation Commission
22 On 22 January 2003, a delegate of the Commission determined that the appropriate medical diagnosis for Mr Money’s lung condition was "chronic bronchitis and emphysema" and that these conditions were not related to his defence service. Between making his application and the date on which the delegate handed down his decision, Mr Money had sought further treatment and advice. On 17 October 2002 he had a lung biopsy and on 9 December 2002, Dr Waring diagnosed Mr Money’s condition as IFA. On the basis of Dr Waring’s diagnosis, Mr Money requested a review of the delegate’s decision under s 31 of the Veterans’ Entitlements Act. On 31 March 2003, a senior delegate of the Commission handed down a decision varying the medical diagnosis from "chronic bronchitis and emphysema" to "idiopathic pulmonary fibrosis" (which is synonymous with IFA) but determining that the disability was not service caused.
The Veterans’ Review Board
23 An appeal to the Veterans’ Review Board in October 2004 was unsuccessful. The Board held that the evidence before it did not establish that Mr Money’s condition was aggravated by an inability to obtain appropriate clinical management. Accordingly, the Board stated that it was "reasonably satisfied that the material before it does not raise a connection between the applicant’s idiopathic pulmonary fibrosis and the relevant service as required by the Act". Accordingly the Board affirmed the decision under review.
The Administrative Appeals Tribunal
24 On 24 January 2005, Mr Money filed an application in the Administrative Appeals Tribunal for review of the Board’s decision. The Tribunal gave detailed consideration to the medical issues involved in Mr Money’s application. On 22 November 2006 the Tribunal set aside the Board’s decision and substituted its decision namely that, "the applicant’s condition of idiopathic fibrosing alveolitis is defence-caused, with effect from 13 March 2002". It remitted the matter to the Commission for assessment of the rate of the pension.
25 Central to the Tribunal’s decision is the meaning it ascribed to the term, "appropriate clinical management", which appears in the relevant Statement of Principles concerning IFA. The Tribunal, noting that it had not been able to obtain much guidance, judicial or otherwise, considered the plain English meaning of the individual words and then described a process that it regarded as "appropriate clinical management" and which it believed would accord with relevant medical ethical guidelines. Although lengthy, it is helpful for an understanding of the Tribunal’s decision to repeat this description:
One would expect that the general meaning of ‘appropriate clinical management’ will encompass management of any disease, common or rare, that a patient presents to a doctor - ranging from the GP to the Specialist, sub specialist and super specialist. One would expect that every doctor will manage the patient up to the limit of his or her training, experience and capability. If he or she is unable to understand what is emerging from the symptoms, signs or investigations, he or she will be expected to promptly refer the patient with the history he or she elicits as well as findings and any test results obtained by him or her to someone higher up in the "expertise ladder" to sort out. One would expect that if that specialist also cannot come to a conclusion he or she would refer the patient on to a sub or super specialist or alternatively consult with one.If an impasse is reached, at any level, then it is important that the doctor of last referral keep the patient under regular surveillance as new signs and symptoms may emerge that will help clinch the diagnosis. Following on from this, one would expect that the specialist keeps the original junior doctor (or GP in civilian life) informed about the progress of the surveillance.
The patient must be kept informed and the patient must cooperate with the doctor. Furthermore, even after the diagnosis is made, if a disease is progressive or leaves the patient susceptible to aggravation of the effects of his illness, by extraneous matters, like other clinical problems that can impact on the effect of his disease, there is a need, in appropriate management, to address these issues if they can be reduced or eradicated - by explanation, counselling and support of the patient, keeping abreast of the literature during ongoing surveillance, and even using allied professionals to help.
26 The Tribunal held that the clinical management Mr Money received from naval clinicians fell short of the required standard. The Tribunal referred to a letter dated 14 April 2003 from Dr Waring to Mr Money in which Dr Waring expressed the following opinion:
You have however supplied to me, chest x-ray reports that consistently indicate increased "lung markings" and inadequate inspiration from 1973, 1976 and 1978. These are suggestive of pulmonary fibrosis at that time. A report from May 1979 in fact refers to "fibrotic shadowing at the right base". Furthermore it was noted at that time that there was clubbing of the fingers. You had demonstrated to me from a wedding photo that in 1971 you did not have clubbing confirming that it is not a congenital deformity. The marked degree of your clubbing now suggests that it has developed over a considerable period of time.I would therefore agree with you that there is evidence that the condition predated your discharge from the service.
Furthermore the breathing disorder that was attributed to chronic bronchitis and emphysema on the basis of spirometry was in fact incorrect and more likely to be the early stages of pulmonary fibrosis that was misdiagnosed.
[Tribunal’s emphasis]
27 The Tribunal referred to a letter from Dr Musk, also a specialist respiratory physician, in which Dr Musk referred to x-ray reports from the 1970s and 1980s. Commenting on those reports Dr Musk said it was likely that "there was early interstitial fibrosis during the period of service and more detailed investigations could have arrived at an earlier diagnosis". The Tribunal also referred to case notes made by Dr Brodziac, a consultant physician to whom Mr Money was referred and concluded:
Based on this rather fragmented and incomplete material the Tribunal finds that Dr Brodziac uncritically assumed that one of the well known clinical signs in medicine - clubbing of fingers and toes - was congenital or familial. He seems to have dismissed a respiratory cause without seeking other serial medical records and serial x-rays going back to enlistment which he should surely have known were available to him in the "system". For these reasons the Tribunal finds that Dr Brodziac’s clinical management fell short of the level required of a doctor (who, though not a specialist in respiratory medicine, should, as a specialist general physician, have managed his patient better).
28 The Tribunal found that Mr Money began to show abnormalities in his x-rays from about the age of 26 (1973) and "continued to have changes that caused concern" but which were explained away as being "probably within normal limits, or due to error". The Tribunal found that Mr Money, together with all clinical records dating back to enlistment, should have been sent to a senior respiratory physician for full evaluation. According to the Tribunal:
This would have allowed him to take a history, examine him and evaluate whether the clubbing was or was not familial. The physician should have listened to all segments of the lungs as any clinician would, measured the applicant’s height and weight and his chest expansion and evaluated the results. He would then almost certainly have considered very seriously the diagnosis of IFA and arranged for pulmonary function testing which was available at the time (which would have further supported the provisional diagnosis, while also being a useful start in monitoring the rate of progression of the disease).
29 In the Tribunal’s view such a referral would "almost certainly" have resulted in junior doctors being alerted to a real possibility of a diagnosis of IFA which would have resulted in a different management routine. The Tribunal also found on the basis of Dr Waring’s opinion that Mr Money’s IFA could have been aggravated by exposure to toxic fumes in submarines.
30 The Tribunal found that systemic failures in the Navy’s management of Mr Money’s IFA had aggravated his condition, as had the external stimuli of exposure to submarine fumes and the development of a smoking habit. The Tribunal acknowledged that the delegate of the Commission had held that Mr Money’s smoking was not causally related to eligible service however the Tribunal came to the opposite conclusion. It found that his smoking originated at the commencement of his service and continued during the whole period of his service and that the "amount and frequency entirely depended on varying factors, including varying stress levels, over time". The Tribunal added:
The Tribunal finds that the applicant was smoking to a significant degree during eligible service and that smoking is well known to affect lung function by interfering with diffusion of gases at alveolar level and by narrowing of the finer tubes taking air into the alveoli either by causing spasm of their walls so narrowing the lumen, or by the increase of secretions which also block and narrow the lumen restricting the passage of air in and out of the lung.The Tribunal finds that the applicant’s smoking fell into the category of an external stimulus that was causally related to his relevant service, and that accelerated the natural course of his IFA.
31 The Tribunal found that although Mr Money’s excess weight was not causally related to his service, it would have compromised his lung function.
32 The Tribunal found that the delay in diagnosing Mr Money’s IFA led to a corresponding delay in initiating appropriate prophylactic measures such as keeping him under long term surveillance, advising him to stop smoking and to lose weight and regular monitoring of his lung function. The Tribunal stated it was satisfied that:
the applicant did not obtain appropriate clinical management for his disease ... which arose during Eligible Service (but was not caused by that service) and that because of this inability, the condition which through its pathology caused the deterioration of his pulmonary function, was aggravated - in the sense of being "made worse than it otherwise would have been" - by the circumstances of his service within which the Navy’s medical system, ... failed to deliver appropriate clinical management to the applicant ...
THIS APPEAL
The Questions of Law
33 The notice of appeal filed by the applicant sets out the following nine questions:
1.1 Did the Tribunal err in its construction of the expression "inability to obtain appropriate clinical management" in clause 5(a) of Statement of Principles No 16 of 1998 concerning Idiopathic Fibrosing Alveolitis (the SoP)?1.2 Was there any material before the Tribunal capable of supporting a finding, on the standard prescribed by s 120(4) of the VE Act, factor (a) in clause 5 of the SoP existed?
1.3 Was the Tribunal required, and did the Tribunal fail, to find whether factor (a) in clause 5 of the SoP was related to the Respondent’s defence service in one of the ways listed in s 196B(14) of the VE Act?
1.4 Was there any material before the Tribunal capable of supporting a finding, on the standard prescribed by s 120(4) of the VE Act, that factor (a) in clause 5 of the SoP was related to the Respondent’s defence service in one of the ways listed in s 196B(14) of the VE Act?
1.5 Was there any material before the Tribunal capable of supporting a finding, on the standard prescribed by s 120(4) of the VE Act, that the Respondent’s putative inability to obtain appropriate clinical management for idiopathic fibrosing alveolitis had contributed in a material degree to, or aggravated, his idiopathic fibrosing alveolitis?
1.6 In finding, at [73] of its Reasons for Decision, that the Respondent’s submarine service "could" have aggravated his idiopathic fibrosing alveolitis, did the Tribunal fail to make a finding on the standard prescribed by s 120(4) of the VE Act?
1.7 Was there any material before the Tribunal capable of supporting the Tribunal’s finding, at [77] of its Reasons for Decision, that the Respondent’s smoking habit was causally related to his relevant service?
1.8 Was the material before the Tribunal capable of supporting an opinion formed reasonably on the material before the Tribunal that the Respondent’s idiopathic fibrosing alveolitis was contributed to in a material degree by, or was aggravated by, his defence service?
1.9 In deciding that the Respondent’s idiopathic fibrosing alveolitis is defence-caused, did the Tribunal fail to apply the standard of proof prescribed by s 120(4) of the VE Act or ask itself the wrong question?
The grounds of appeal reflect these questions of law. In its written submissions in reply and at the hearing of this matter, counsel for the applicant clarified that, in relation to questions 1.2, 1.4, 1.5 and 1.7, the applicant is claiming that there is no evidence capable of supporting the relevant findings of the Tribunal rather than seeking to take issue with the weight that the Tribunal attributed to evidence.
The Orders Sought
34 The Commission seeks to have the Tribunal’s decision set aside and for the Court to substitute its decision that Mr Money’s IFA was not defence-caused. Alternatively, the Commission seeks to have the matter remitted to a differently constituted Tribunal for further hearing and determination according to law.
First Ground of Appeal
35 The applicant claims that the Tribunal wrongly construed the phrase "inability to obtain appropriate clinical management". There are two aspects to the phrase. The first involves what is comprehended by appropriate clinical management. The second is what would constitute an "inability" to obtain it. Once those aspects are established there is, of course the question of whether the inability resulted in aggravation of the disease. In the decision of the Tribunal and in the submissions of the parties to this application, these elements are not always distinct. Indeed they are intertwined in a way that makes their separation difficult and sometimes impossible.
The concept of appropriate clinical management and the inability to obtain it
36 The Tribunal held that Mr Money was unable to obtain appropriate clinical management because his disease was not diagnosed when it should have been. The applicant submits that a failure to diagnose in accordance with contemporary medical knowledge does not create an inability to obtain appropriate clinical management where there is no effective treatment for the disease. Leaving aside, for the moment, the question of "inability", this submission is based on the applicant’s understanding of appropriate clinical management. The applicant asserts that this involves only active treatment and does not include measures designed to manage the disease such as advice and counselling. The applicant submits that in the case of an incurable and progressive disease, such as IFA, a failure to diagnose could not raise a barrier to obtaining appropriate clinical management, as no such management could arrest the progress of the disease. The submission ignores the possibility that even if appropriate clinical management could not arrest the natural progress of the disease, it might improve the quality of life for the sufferer by alleviating his symptoms. It also ignores the consequences of a failure to advise the patient to refrain from conduct that might accelerate the progress of the disease.
37 In his reports dated 13 April 2004 and 8 March 2005, Dr Waring expressed the view that Mr Money’s condition had not been given appropriate clinical management. In Dr Waring’s concept, clinical management involves "investigation, diagnosis, treatment and prognostic advice". In his report of 13 April 2004 Dr Waring said:
Mr Money did not receive appropriate clinical management, as he did not have the appropriate investigations, the diagnosis of interstitial lung disease was not made and he was not given prognostic advice in relation to this condition because it was not diagnosed.
38 The applicant cited Somerset v Repatriation Commission [2005] FCA 1399 as authority for the proposition that failure to diagnose may not necessarily constitute an inability to obtain appropriate clinical management. However, in Somerset Greenwood J plainly left open the possibility that it may do so; see [36]. Somerset is distinguishable on the grounds that, in that case, there was no basis for believing that the veteran was suffering from the disease during his period of service. In contrast, the expert opinion of Dr Waring is that there was adequate evidence that Mr Money had IFA "at least as early as 30 April 1979". As indicated above at [27], Dr Musk was inclined to a similar view. In Repatriation Commission v Wedekind [2000] FCA 649, Kenny J was prepared at [17] to assume, without deciding, that the Tribunal may reasonably have been satisfied that diagnostic failure could lead to an inability to obtain appropriate clinical management. Given that a beneficial approach is called for in dealing with this legislation (Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80), it seems to me that a person in Mr Money’s position may well be prevented from obtaining appropriate clinical management of a condition by lack of awareness that they suffer from it.
39 In my view the plain meaning of "appropriate clinical management" would include not only active therapeutic treatment but also advice on the management of symptoms and other measures that would improve a patient’s quality of life even if they had no effect on the ultimate progression and outcome of a condition. If the phrase "appropriate clinical management" was intended to be limited to active treatment, one might ask why the phrase "appropriate clinical treatment" was not used in its place. Dr Waring did not give the phrase this narrow meaning. He expressed his opinion in two reports that Mr Money had not received appropriate clinical management while at the same time expressing doubt that there was any available treatment for IFA.
40 The applicant submits, however, that the Tribunal has also erred in failing to consider the meaning of "inability". It is true that in its discussion of "inability to obtain appropriate clinical management" the Tribunal does not focus on the meaning of "inability". The Tribunal is, of course, not required to engage in detailed analysis of the meaning of all regulatory instruments within its contemplation. Difficulties will arise only if it has applied an erroneous construction.
41 The applicant submits that the correct construction in this matter is that adopted in Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80, namely, that as a matter of practical reality, "inability" requires barriers to obtaining appropriate clinical management. The applicant submits that it could not be said that the same outcome would have resulted if the Tribunal had considered this meaning. I do not think that the applicant has been able to establish this. As Burchett J expressed it in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 469, the issue "turns on whether the Tribunal in reality mistook its legal task, or whether it merely strayed into a measure of obscurity in the statement of its reasons, the actual meaning of which can nevertheless be ascertained by some perseverance, and being ascertained, reveals no error".
42 The Tribunal clearly found that there was an inability to obtain appropriate clinical management; it expressly states so in [82] of its reasons. Although the Tribunal made no express findings as to why the identified systemic failures in the naval medical system presented a barrier to Mr Money receiving appropriate clinical management, it is implicit in its reasons that Mr Money was reliant upon the Navy’s medical system during his period of service. As a matter of practical reality, a person in Mr Money’s position could not reasonably have been expected to take steps to obtain medical care beyond that offered by the Navy; see Brew at 88. The applicant has not demonstrated that the Tribunal applied an incorrect construction.
Aggravation of the disease
43 In addressing the question of whether the inability to obtain appropriate clinical management had aggravated Mr Money’s IFA, Dr Waring expressed slightly different opinions. In the earlier report (13 April 2004) Dr Waring discussed the usual form of treatment in the 1970s which was usually high dose prednisolone, an immunosuppressant. He said that it was "serendipitously appropriate" that Mr Money was not given this treatment because more recent studies have "not demonstrated any benefit from prednisolone therapy for the interstitial lung disease that has been diagnosed on lung biopsy". He added:
Having said this, the majority of chest physicians still consider a trial of prednisolone therapy, especially in young otherwise fit patients, who are likely to tolerate the drug relatively well.[Emphasis added]
44 Dr Waring also commented that the naturally slow progression of Mr Money’s disease would not have been expected if it had been diagnosed in the 1970s, and added that, in retrospect, this slow progress meant that the side effects of prednisolone therapy would have out-weighed any benefit he might have received had he been given this treatment. He summarised his view by saying that "the lack of appropriate clinical management may have, but probably has not aggravated his condition". [Original emphasis]
45 In his second report (8 March 2005) Dr Waring was more slightly more positive about prednisolone therapy. He said:
In hindsight it is apparent that the treatment would "probably" not have affected his condition, but this condition is highly unpredictable (as indicated by the very unusual natural history of Mr Money’s condition). There is a chance that prednisolone therapy could have influenced the condition. In other words, while this is unlikely it remains a possibility. It is for this reason that some respiratory physicians still give a trial of prednisolone therapy for this condition.[Original emphasis]
46 Dr Waring added that if the diagnosis of the disease had been correctly made at the time "a reasonable course of action would have been to recommend that Mr Money no longer serve as a submariner".
47 The Tribunal found that Mr Money’s smoking "accelerated the natural course of his IFA", and held that had a timely diagnosis been made, he should have been advised to stop smoking. The applicant submits that the Repatriation Medical Authority did not include smoking as one of the factors that must exist before it could be said that IFA was connected with the circumstances of a person’s service. Therefore, to hold that appropriate clinical management includes advice to give up smoking (and that therefore damage caused by smoking may be seen to aggravate the patient’s disease) is to subvert the system of Statements of Principles and subsume the Repatriation Medical Authority’s function of making medical determinations.
48 I do not accept that the Repatriation Medical Authority undertakes to determine every aggravating factor of a condition for which it issues a Statement of Principles. Rather, its task, as laid out in s 196B(3) is to determine whether a particular condition can be related to service. A Statement of Principles is not a conclusive statement of the factors that may aggravate a disease; rather, it is a statement of the factors that may connect a disease to service. The Repatriation Medical Authority may well be of the opinion that a factor aggravates a disease or condition but that such a factor does not raise a connection with defence service. To illustrate this point, the applicant’s written submissions annex a number of Statements of Principles for different respiratory conditions. Many of them include smoking or exposure to specific irritants as factors that raise a connection with defence service. None of them include exposure to cold or over-exertion. It does not follow that these would not aggravate such conditions. A finding that providing advice to avoid a factor that is not included within a Statement of Principles would constitute appropriate clinical management of a condition does not undermine the regime of Statements of Principles in the way that the applicant suggests.
Second Ground of Appeal
49 The applicant claims that there was no evidence before the Tribunal that Mr Money had been unable to obtain appropriate clinical management.
50 In Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598, Fox, Deane and Morling JJ said at 601:
An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.
51 The applicant argues that there was no material before the Tribunal capable of supporting a finding that there were barriers to Mr Money obtaining appropriate clinical management for his IFA. As discussed above, I am of the view that a failure to diagnose is sufficient to create a barrier to obtaining appropriate clinical management, and the evidence in this case is that a diagnosis could have been made in 1979.
52 The applicant submits that there was no material before the Tribunal capable of supporting the finding that Mr Money did not receive appropriate clinical management. This submission is founded on the equation of appropriate management with appropriate treatment and the contemporary absence of any effective treatment; two contentions which I have rejected above. In any event, there was expert evidence before the Tribunal that Mr Money did not receive appropriate clinical management. Dr Waring gave this opinion in his letter to the departmental medical officer dated 13 April 2004 and in his report dated 8 March 2005. Both of these reports are discussed in the context of the first ground of appeal. That discussion shows that there was considerable evidence on the point and that this ‘no evidence’ ground must fail.
Third Ground of Appeal
53 The applicant claims that the Tribunal was required to find whether any inability to obtain appropriate clinical management was related to Mr Money’s service in one of the ways set out in s 196B(14). The applicant further claims that the Tribunal failed to make such a finding.
54 The Tribunal’s discussion of the applicable law includes, at [28], an explicit acknowledgement that the "relationship to service must be one of the relationships prescribed in s 196B(14) of the Act". As noted above, one of those relationships is that prescribed by s 196B(14)(a), which states that a factor contributing to a disease (here, inability to obtain appropriate clinical management) can be related to service if it "resulted from an occurrence that happened while the person was rendering that service". In its reasons, the Tribunal explicitly found that one of the circumstances of Mr Money’s service – and therefore an occurrence during his service – was that "the Navy’s medical system, on this particular occasion, failed to deliver appropriate clinical management" to Mr Money. Additional examples of the "systems failure in the medical management structure that the Navy had in place in relation to this applicant’s disease at that time" were given by the Tribunal and are described above at [26] et seq. Bearing in mind that the Tribunal’s reasons should "not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272), it is clear that the Tribunal has found that Mr Money’s inability to obtain appropriate clinical management for his IFA resulted from occurrences while he was serving in the Navy.
55 The applicant submits that the Tribunal was in error in considering that the issue was governed by the decision of the High Court in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626. Alternatively, it submits that if Federal Broom were applicable, it would require the Tribunal to turn its mind to whether Mr Money’s inability to obtain appropriate clinical management was a state of affairs to which he would not otherwise have been exposed - presumably if he had not been in the Navy at the relevant time. The applicant submits that a similar comparative exercise is required by Johnston v Commonwealth [1982] HCA 54; (1982) 150 CLR 331 at 337-8. In my view, it is clear that the Tribunal did consider this issue. Implicit in the finding that the naval doctor’s "clinical management fell short of the level required" is the finding that other doctors would be capable of meeting that standard. Mr Money could self-evidently not have been subject to a systemic failure of the Navy’s medical management structure if he had not been serving in the Navy. Accordingly, this ground must fail.
Fourth Ground of Appeal
56 The applicant claims that there was no evidence before the Tribunal that an inability to obtain clinical management could be related to Mr Money’s service in one of the ways laid out in s 196B(14).
57 As was noted in addressing the third ground of appeal, the Tribunal concluded that the clinical management of Mr Money’s IFA by naval medical staff was inadequate, and this conclusion is sufficient to satisfy the requirements of s 196B(14). The Tribunal’s conclusion was based on its analysis of the medical records kept by the Navy, and Dr Waring’s expert opinion that Mr Money’s IFA could, and should, have been diagnosed while he was serving in the Navy. Whilst the applicant submits that the Tribunal made no finding that Mr Money’s IFA should have been diagnosed, it expressly found at [81] that there had been a "delay in the diagnosis"; see also [33]. It therefore cannot be said that there was no material to support the Tribunal’s conclusion.
Fifth Ground of Appeal
58 The applicant argues that there was no evidence before the Tribunal that any inability to obtain appropriate clinical management had contributed materially to, or aggravated, Mr Money’s IFA. The applicant submits that the evidence does not demonstrate that Mr Money’s defence service made his IFA worse than it otherwise would have been; Johnston v Commonwealth [1982] HCA 54; (1982) 150 CLR 331 at 338.
59 I have already held that a factor not being mentioned in the Statement of Principles is not inconsistent with it being a factor that aggravates a disease, though it cannot of itself be a factor that creates a connection with defence service. Dr Waring’s report refers to Mr Money’s exposure to poor atmospheric conditions while serving in submarines, notes that if his IFA had been correctly diagnosed it would have been reasonable to recommend that he no longer serve in submarines, and states that it is likely that his continued exposure could have exacerbated his condition. The Tribunal relied on this evidence; see [73]. There was material before the Tribunal upon which it could base its conclusion that Mr Money’s condition was aggravated by the failure to diagnose it. It is not for this Court to substitute its opinion as to the appropriate weight that should be given to that evidence. That is a task for the Tribunal. It is sufficient for this Court to note that there was some real evidence for it to reject this ‘no evidence’ claim.
60 The applicant drew the Court’s attention to the requirement that mere de minimus aggravation of IFA would not suffice, given the requirements of clause 6 of the Statement of Principles; see Repatriation Commission v Bendy (1989) 10 AAR 323 at 330. It could not, however, point to any evidence that the aggravation identified by the expert would have been de minimus. This ground must fail.
Sixth Ground of Appeal
61 The Tribunal found that Mr Money’s service in submarines "could (via the fumes that he had to inhale), have aggravated his IFA" [emphasis added]. The applicant argues that the Tribunal here misconceived its task, which is to decide to its reasonable satisfaction whether the fumes aggravated Mr Money’s IFA, as required by s 120(4).
62 The Tribunal has failed to express its satisfaction on the balance of probabilities that Mr Money’s submarine service aggravated his IFA. The Tribunal’s treatment of this topic nonetheless implies that it was satisfied to the appropriate standard on this point. In any event, even if this implication cannot be drawn, the Tribunal identified other aggravating factors, primarily smoking. The Tribunal laid out the measures that could have been taken to protect Mr Money’s lung capacity, but which were not instituted:
The prophylactic measures appropriate to the applicant’s disease are:
• making sure that the applicant has his yearly flu vaccine and five yearly pneumococcal vaccine, and having antibiotics at hand so he could promptly start taking them at the start of infection, and therefore not be delayed waiting for doctor’s appointments etc;• advising him to stop smoking;
• keeping him under long term surveillance;
• regular monitoring of his lung function by non invasive testing; and
• explaining the importance of losing weight to the patient.
The Tribunal said that these measures "would have protected [Mr Money’s] spare lung capacity that was being inexorably eroded".
Seventh Ground of Appeal
63 The Tribunal found that Mr Money’s smoking "was causally related to his service, and was perpetuated by circumstances of his eligible service". The applicant asserts that there was no material before the Tribunal capable of supporting this finding.
64 The transcript of the evidence given by Mr Money before the Tribunal forms part of the appeal papers before this Court. It reveals that Mr Money was questioned about why he took up smoking, and that he adopted the assertions made in a claimant report relating to his cigarette smoking. Mr Money signed this report on 14 August 2002, and it is on the Tribunal file. Responding to the question of why he began to smoke cigarettes regularly, Mr Money wrote:
Not exactly sure – but they were available for purchase in the dry canteen at junior recruit training school in HMAS Cerebus in 1963 – stress quite possibly contributed plus peer pressure and being absent from family and close friends at such a young age.When asked to describe the reasons for changes in his smoking patterns, Mr Money repeatedly referred to the stress of his postings, as well as to the easy availability of cheap cigarettes and his isolation from his family. Mr Money also noted that, during his period of service, his workplaces and mess decks were not smoke free.
65 It therefore cannot be said that there was no material on the basis of which the Tribunal could decide to its reasonable satisfaction that Mr Money’s use of cigarettes was causally related to his defence service.
Eighth Ground of Appeal
66 The applicant argues that the material before the Tribunal was incapable of supporting an opinion that Mr Money’s defence service contributed in a material degree to his condition or that it was aggravated by his service either by his smoking or his exposure to the atmospheric conditions inside submarines.
67 The Tribunal found that Mr Money’s smoking was an "external stimulus that was causally related to his relevant service, and that accelerated the natural course of his IFA". The applicant submitted that the Tribunal could not reasonably make such a finding as there was "no material before the Tribunal to the effect that Mr Money’s IFA had worsened during his defence service. Rather the evidence was that the course of Mr Money’s IFA had been unusually slow". Plainly, a slow worsening is still a worsening. By its very terms, this submission must fail.
68 As noted above, on the basis of Dr Waring’s evidence, the Tribunal found that Mr Money’s submarine service could have aggravated his IFA. The applicant submits that there was no evidence that Mr Money had contracted IFA by the time that his service on submarines ended in 1974. As noted above, however, the report prepared by Dr Musk and tendered by the Commission states that the "heavy markings" shown in Mr Money’s 1973 x-ray "would be consistent with early interstitial lung disease". Dr Waring also stated, in a letter dated 14 April 2003, that these markings are "suggestive of pulmonary fibrosis at that time".
69 It is not the role of this Court to assess minutely the Tribunal’s conclusions of fact. The applicant has not succeeded in establishing that the material before the Tribunal was incapable of supporting its conclusions. This ground must fail.
Ninth Ground of Appeal
70 The final ground of appeal advanced by the applicant relates to the Tribunal’s finding that it was "not satisfied on the balance of probabilities that the incapacity resulting from the disease idiopathic fibrosing alveolitis was not defence-caused". The applicant submits that this demonstrates that the Tribunal did not apply the standard prescribed by s 120(4), namely that it should decide matters to its reasonable satisfaction. Alternatively, the applicant submits that the Tribunal asked itself a wrong question.
71 The applicant submits that the Tribunal has erroneously applied the reverse onus which is relevant to applications relating to operational service, as opposed to defence service. That reverse onus, as it appears in sub-sections 120(1) and (2), requires the decision-maker to be satisfied beyond reasonable doubt that there is not sufficient ground for making the determination. Here, the Tribunal has correctly referred to the balance of probabilities. Furthermore, earlier in its reasons, the Tribunal explicitly referred to its obligation to "decide the matter to its reasonable satisfaction". Finally, it is clear from the Tribunal’s findings that it was satisfied on the balance of probabilities of each of the elements of its reasons:
After considering all of the material before it, including the relevant opinions expressed by the Respiratory physicians in their Reports, the Tribunal is satisfied that the applicant did not obtain appropriate clinical management for his disease of idiopathic fibrosing alveolitis which arose during Eligible Service (but was not caused by that service) and that because of this inability, the condition which through its pathology caused the deterioration of his pulmonary function, was aggravated – in the sense of being "made worse than it otherwise would have been" – by the circumstances of his service within which the Navy’s medical system, on this particular occasion, failed to deliver appropriate clinical management to the applicant for his disease of idiopathic fibrosing alveolitis.
72 The phrasing of which the applicant complains is unfortunate, however, the rather clumsy use of a double negative is not to be confused with the application of the reverse onus test. This ground must also be rejected.
CONCLUSION AND ORDERS
73 The essential findings of the Tribunal are clear: Mr Money’s IFA
was aggravated by his inability to obtain appropriate clinical
management of his
condition, and that inability arose from a systemic failure of the Navy’s
medical structures. Those findings
were open to the Tribunal on the evidence.
The applicant has not identified any error that would entitle this Court to set
aside
the Tribunal’s decision. For that reason the application must be
dismissed with costs.
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J Macdonnell
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Counsel for the Respondent
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R J L McCormack
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/118.html