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Federal Court of Australia - Full Court |
Last Updated: 13 February 2009
FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Money [2009] FCAFC 11
VETERANS’ AFFAIRS –
war-caused injury or disease – appeal from decision of Administrative
Appeals Tribunal – whether veteran’s
condition of idiopathic
fibrosing alveolitis (IFA) was defence-caused – Statement of Principles
requires showing of service-related
inability to obtain appropriate clinical
management – proper meaning of "appropriate clinical management" -
whether evidence
to support causal link between failure to diagnose condition
and eligible defence service – whether failure to obtain
appropriate clinical management a material contributing or aggravating factor
of the IFA – relevance
of extraneous aggravating factors or stimuli
Veterans’ Entitlements Act 1986
(Cth) s 70, s120, s120B(3), s196B
Administrative Appeals Tribunal Act
1975 (Cth) s 44
Woodward v
Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 cited
Johnston v The
Commonwealth [1982] HCA 54; (1982) 150 CLR 331 cited
Lee v Minister of Pensions [No
2] (1948) 3 WPAR 1901 cited
Johnston v The Commonwealth [1982] HCA 54; (1982) 150
CLR 331 cited
Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR
626 cited
Brew [1999] FCA 1246; (1999) 94 FCR 80
cited
REPATRIATION
COMMISSION v KAREN LAUREEN MONEY AS EXECUTOR OF THE ESTATE OF DENNIS JOHN
MONEY
WAD 59 of
2008
FINN, DOWSETT AND
EDMONDS JJ
13 FEBRUARY
2009
ADELAIDE (VIA VIDEO LINK TO PERTH)
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AND:
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DATE OF ORDER:
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WHERE MADE:
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ADELAIDE (VIA VIDEO LINK TO PERTH)
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THE COURT ORDERS
THAT:
1. The appeal be
allowed;
2. The decision of the Tribunal be set aside; and
3. The decision be remitted to the Tribunal for further hearing and determination according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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WESTERN AUSTRALIA DISTRICT REGISTRY
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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AND:
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DATE:
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PLACE:
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ADELAIDE (VIA VIDEO LINK TO PERTH)
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REASONS FOR JUDGMENT
FINN AND EDMONDS JJ:
1 Dennis Money, who died after the lodging of this appeal, was incapacitated from idiopathic fibrosing alveolitis ("IFA"), a lung disease of unknown origin. The primary issue in this appeal is whether that incapacity was defence-caused for the purposes of s 70 of the Veterans’ Entitlements Act 1986 (Cth). The Administrative Appeals Tribunal determined it was. The primary judge affirmed that decision on an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The correctness of their respective decisions required consideration both of the interaction of a number of provisions of the VE Act and of a Statement of Principles ("SoP") relating to IFA determined by the Repatriation Medical Authority under s 196B(3) of the Act.
THE STATUTORY SETTING
2 By virtue of s 70(1) of the Act, 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". A disease contracted either before the commencement of defence service or during but not arising from that service is deemed to be defence-caused if, in the opinion of the Repatriation Commission, it was "contributed to in a material degree by, or was aggravated by, any defence service": s 70(5)(d). 3 For present purposes, in making its determination under s 70(5)(d), the Commission is to decide the matter to its reasonable satisfaction: s 120(4). Because Mr Money’s claim is one in respect of which there is an SoP in force the manner in which the Commission applies s 120(4) to determine the claim is in turn contrived by s 120B(3). The Commission is only to be reasonably satisfied that a disease is defence-caused if:
(a) the material before the Commission raises a connection between the person’s disease and some particular service rendered by that person; and
(b) the SoP in force upholds the contention that the disease is, on the balance of probabilities, connected with that service.
4 Section 196B envisages that the Repatriation Medical Authority can determine two distinct types of SoP. That of present concern is prescribed in s 196B(3) of the Act. It provides, insofar as presently relevant that:
(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular ... disease ... can be related to:
...
(b) defence service (other than hazardous service) rendered by members of the Forces;
...
the Authority must determine a Statement of Principles in respect of that kind of ... disease ... setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
5 Section 196B(14) in turn defines seven circumstances in which, for the purposes of s 196B(3), a factor causing or contributing to a person’s injury or disease is "related to service rendered by [that] person". It is only necessary to note three of these. They are contained in subparas (a), (b) and (d) of s 196B(14) and are:
(a) if the factor resulted from an occurrence that happened while the person was rendering that service; or
(b) if the factor arose out of, or was attributable to, that service; or
(d) the factor was contributed to in a material degree by, or was aggravated
by, that service.
It is to be emphasised that s 196B(14) is concerned with
identifying how factors prescribed in SoPs that "must be related to service",
can be shown to be so related.
Kind of injury, disease or death
6 Because of its importance, it is necessary to refer in a little detail to the SoP for IFA. Insofar as presently relevant, it states:
2. (a) This Statement of Principles is about idiopathic fibrosing alveolitis and death from idiopathic fibrosing alveolitis.
(b) For the purposes of this Statement of Principles, "idiopathic fibrosing alveolitis" means a chronic diffuse interstitial lung disease of unknown origin, characterised pathologically by inflammation and fibrosis of the lung parenchyma ...
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that idiopathic fibrosing alveolitis and death from idiopathic fibrosing alveolitis can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factor set out in the paragraph in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, idiopathic fibrosing alveolitis or death from idiopathic fibrosing alveolitis is connected with the circumstances of a person’s relevant service are:
(a) inability to obtain appropriate clinical management for idiopathic fibrosing alveolitis.
Factors that apply only to material contribution or aggravation
6. Paragraph 5(a) applies only to material contribution to, or aggravation of, idiopathic fibrosing alveolitis where the person’s idiopathic fibrosing alveolitis was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
7 It is to be noted that clauses 4, 5 and 6 interrelate in a somewhat unusual way. Clause 4 specifies that the cl 5 factor must be related to a person’s service hence it required attention to be given to the circumstances identified in s 196B(14). Nonetheless, cl 4 makes cl 5 subject to, hence limited by, cl 6. The limitation envisaged by cl 6 is that the cl 5 factor materially contributed to, or aggravated the claimant’s IFA. In this respect, as is apparent on the face of cl 6, it ties the cl 5 factor to s 70(5). Put shortly, the SoP is bi-focal in its enquiry: Has the cl 5 factor contributed materially to, or aggravated, the person’s IFA disease? Was that factor related to that person’s defence service? These questions are to be answered on the balance of probabilities: s 120B(3).
FACTUAL SETTING
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.
8 The following is taken largely from her Honour’s reasons for judgment. We begin with a note on IFA. This 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. 9 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 though not every sufferer will develop clubbing. IFA is difficult to diagnose but its presence may be suggested by chest x-rays. 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). 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. We would interpolate that the scant evidence there is would seem to suggest that he ceased to serve on submarines in 1974. His counsel appears to accept this and her Honour proceeded upon that premise: at [68]. He was posted to Exmouth in November 1974, to Sydney in 1978, and finally to Canberra in 1980. 11 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. 12 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. 13 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. 14 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. 15 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. 16 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. 17 Mr Money’s discharge medical examination was conducted on 15 September 1982. The examining medical officer noted:
18 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. 19 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. Dr Waring later had a lung biopsy done and on 9 December diagnosed Mr Money’s condition as IFA.
The Medical Evidence Concerning Mr Money’s Past "Clinical Management"
Appropriateness of the clinical management provided to Mr Money during his defence service. I believe clinical management should be considered in terms of investigation, diagnosis, treatment, and prognostic advice. In this regard 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. In my opinion he did, serendipitously, receive appropriate treatment, insofar as, it is now clear that the correct treatment was to do nothing, even though this would probably not have been the approach in the 1970’s if the condition was diagnosed then.
20 The principal expert evidence on this matter was given by Dr Waring in two reports, one provided to the Department of Veterans’ Affairs in 2004; the other, to Mr Money’s representative at the Tribunal in 2005. In light of the appellant’s contentions, it is necessary to refer to these in some detail. 21 The 2004 report responded to a series of questions asked by the Department. The following were among the opinions stated:
In the 1970’s the accepted treatment of idiopathic pulmonary fibrosis was immunosuppressive therapy, usually in the form of high dose prednisolone. It is likely that if this condition had been recognised at that time in a young man, he would have been offered this treatment. In retrospect it is now clear that this would have been inappropriate treatment and the fact that he received no treatment is serendipitously appropriate. ... 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. Mr Money has not received this therapy from me, because of the second reason, which is the fact that he has very slowly progressive disease. It is extremely unusual for UIP to progress as slowly as what is apparent from Mr Money’s 30 year course. Certainly in the two years that I have been monitoring his condition, there has been no deterioration. This would not have been expected if the condition was diagnosed in the 1970’s, however, it is now clear in retrospect that the potentially serious side effects of prednisolone therapy, would have out-weighed any benefit he may have received from this treatment in the 1970’s, given that there has been minimal deterioration for the drug to prevent.
22 Under the heading "Investigation and Diagnosis" Dr Waring observed that Mr Money’s medical record during his service included several pieces of evidence on multiple occasions (to which he referred), indicating that his interstitial lung disease was present during that service. He considered that while each of these signs could be explained away individually (as occurred), the combination of signs was highly suggestive of pulmonary fibrosis. 23 On the subject of "Treatment" he commented:
What would constitute management for idiopathic pulmonary fibrosis. This is explained above. Given that Mr Money did not receive appropriate clinical management for idiopathic pulmonary fibrosis during his defence service, was the condition aggravated as a consequence. Mr Money’s condition has clearly deteriorated since it was first present 30 years ago, albeit slowly. It is now impossible to determine with certainty whether Mr Money would have responded to prednisolone therapy had it been given, and therefore his condition not progressed. As indicated above, currently available evidence suggests that prednisolone therapy is usually ineffective in this condition, so statistically it is unlikely that such therapy given in the 1970’s would have altered the course of his illness. However, there is certainly anecdotal evidence of unusual cases that respond dramatically to prednisolone therapy, and it is theoretically possible that early in the stage of his illness the condition would have been more responsive and therefore not progressed as a consequence of prednisolone therapy. In other words, the lack of appropriate clinical management may have, but probably has not aggravated his condition. (Emphasis in original)
24 The report continued:
From your study of Mr Money’s medical documentation, at what stage was there an indication of IPF? There was adequate evidence of IPF at least as early as 30 April 1979. If Mr Money did not receive the accepted treatment at the time for IPF is that in your opinion an inability to obtain appropriate clinical management for idiopathic pulmonary fibrosis? This is a difficult question to answer, as I have indicated in a letter to Mr Money dated 6/1/2005. Although Mr Money did not have the accepted treatment of the day, in hindsight it is now clear that if he had received that treatment it would probably not have improved his condition. The evidence available to us now from research done in recent years indicates that prednisolone therapy does not in fact improve this condition. Furthermore, it is now clear that Mr Money’s idiopathic pulmonary fibrosis is unusual in the sense that it has progressed very slowly, and given how long it has been present for it has caused a relatively small loss of lung function. It is for these two reasons that he has not received prednisolone therapy or indeed any treatment for his IPF from me, even though the correct diagnosis has been made. However, notwithstanding the above, I believe Mr Money did suffer an inability to obtain appropriate clinical management for idiopathic pulmonary fibrosis. This is for several reasons:
25 In Dr Waring’s second report he again answered a series of questions. We note the following two:
If "clinical management" is considered in the broadest sense of the term, it includes diagnosis, treatment, and advice with regard to prognosis. Mr Money’s diagnosis was not correctly made and he was therefore not given any information with regard to possible treatment or prognosis.
In hindsight it is apparent that the treatment of the day 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, even though the statistical evidence is not in favour of its use.
Mr Money has also provided me with several documents indicating the poor atmospheric conditions of his service as a submariner. For example the air was apparently commonly contaminated with many substances that a person would not normally be exposed to outside of a submarine, such as HF, CO, NO2, and O3. Given this large number of contaminants and the unusual circumstances of the atmosphere in a submarine, it is likely that these could have exacerbated Mr Money’s condition. It is impossible to be definite about this either at the time or now, but I think that if the diagnosis of IPF 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, so that he was not exposed to these potentially deleterious atmospheric conditions.
(Emphasis in original.)
Treatment of idiopathic pulmonary fibrosis has traditionally been with oral corticosteroids and immunosuppressants such as Azathioprine and Cyclophosphamide which were not given. However the response to this treatment is poor unless the patient has non specific interstitial pneumonitis rather than usual interstitial pneumonitis. It is therefore likely that such treatment would have resulted more in side effects if it were continued long term rather than benefit. Nevertheless a trial of such treatment would usually have been done if the condition had been diagnosed.
26 In light of Dr Waring’s answer to the first of the above two questions, we comment in passing that Mr Money seems to have ceased serving on submarines in 1974. 27 Dr Waring referred Mr Money to Professor Musk a specialist expert in occupational lung disease for a second opinion. Professor Musk’s report of 14 September 2005 indicated he had reviewed the documents concerning Mr Money’s medical examinations while in the Navy. In his view, it seemed likely that there was early interstitial fibrosis during the period of service and that more detailed investigations could have arrived at an earlier diagnosis. The report concluded with the observation:
28 After the Tribunal hearing, but prior to its decision, the Member provided the parties with extracts from medical texts. These are in evidence. We simply note that in one of these, in discussing treatments for IFA, it is observed that there was no firm evidence that any of the treatment approaches considered "improves survival or the quality of life". For reasons we note below, the appellant has drawn this to our attention. 29 Finally, in the Tribunal’s reasons it is indicated that, as Mr Money’s claim raised medical issues, but as no specialists gave oral evidence, the Member would use his own experience and expertise as a specialist physician to understand the issues and make a decision. This he obviously did, most notably in relation to what constitutes "appropriate clinical management".
THE TRIBUNAL’S DECISION
... 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: Reasons: [82].
30 This can be stated shortly. The Member interpreted the expression "appropriate clinical management" in the SoP by reference to the ordinary meaning of the words used. The expression included the requirement that "if a disease is progressive or leaves the patient susceptible to aggravation of the effects of his illness, by extraneous matters ... there is a need ... to address these issues if they can be reduced or eradicated". 31 The Tribunal went on to find that Mr Money experienced a "systems failure" in the medical management structure that the Navy had in place in relation to his disease. It went on to find that two other "external stimuli" could be linked to his service. These were that exposure to toxic fumes from working in submarines "could (via the fumes that he had to inhale) have aggravated his IFA"; and that the development of a smoking habit which affects lung function, "was causally related to his relevant service" and "accelerated the natural course of his IFA". It then identified other prophylactic measures that could have been initiated (including advice on weight loss) "that would have protected his spare lung capacity that was being inexorably eroded". 32 The Tribunal was, in consequence -
THE PRIMARY JUDGE’S DECISION
33 Nine grounds of appeal were prosecuted before her Honour, four of which claimed that there was no evidence capable of supporting relevant findings of the Tribunal. All were rejected and the application was dismissed. 34 For present purposes it is only necessary that we note the following aspects of the primary judge’s reasons. Each relates to a ground or grounds of appeal.
(i) Of the meaning of "appropriate clinical management", her Honour concluded (at [39]):
... the plain meaning ... 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.(ii) While accepting that 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, the primary judge considered it was implicit in the Tribunal’s reasons that Mr Money was reliant upon the Navy’s medical system during his period of service. She observed (at [42]):
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 [1999] FCA 1246; [(1999) 94 FCR 80] at 88.(iii) In considering whether inappropriate clinical management had aggravated Mr Money’s IFA, her Honour referred to Dr Waring’s two reports. In the first of these he indicated that "the lack of appropriate management may have, but probably has not, aggravated his condition" (emphasis in original); while in the second he was slightly more positive about prednisolone therapy. Her Honour went on to note that if a diagnosis of the disease had been correctly made at the time, Dr Waring considered "a reasonable course of action would have been to recommend that Mr Money no longer serve as a submariner". The primary judge also noted the Tribunal’s finding that Mr Money’s smoking "accelerated the natural course of his IFA". In responding to the appellant’s objection that smoking was not a factor in the SoP, her Honour commented (at [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.(iv) In relation to the question whether the "factor" of inability to obtain appropriate clinical management of IFA was in fact related to Mr Money’s defence service in a way contemplated by s 196B(14), the primary judge noted that subpara (14)(a) referred to a factor resulting from "an occurrence that happened while the person was rendering ... service". Her Honour went on to note the Tribunal’s explicit findings and examples of systemic failures in the Navy’s medical management structure which she characterised as "occurrences while [Mr Money] was serving in the Navy": [54]. Her Honour went on to indicate that the Tribunal’s conclusion that the clinical management of Mr Money’s IFA by naval medical staff was inadequate, was sufficient to satisfy the requirement of s 196B(14). That conclusion was based on its analysis of the Navy’s medical records and Dr Waring’s expert opinion that the IFA could and should have been diagnosed while Mr Money was serving in the Navy. There was, in other words, material to support the Tribunal’s conclusion.
(v) It was contended at the hearing below that the Tribunal could not reasonably make a finding that Mr Money’s smoking was causally related to his service and "accelerated the natural course of his IFA". The basis for the contention was that 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 his IFA has been "unusually slow". Her Honour’s response was:
Plainly, a slow worsening is still a worsening. By its very terms, this submission must fail.THE APPEAL
35 All nine grounds of appeal attack in differing ways the finding that Mr Money’s incapacitation from IFA was defence-caused for the purposes of s 70 of the Act. It is necessary to deal with these seriatim.
Grounds 2.1(a) and (b)
These grounds allege the Tribunal and her Honour misconstrued the expression "inability to obtain appropriate clinical management" in cl 5(a) of the SoP.
36 The essence of the challenge here is to her Honour’s conclusion that the expression included 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. 37 The appellant’s contention is that the expression is to be construed by reference to the purpose it serves in the scheme of the Act and of the SoP. The qualification in cl 6 of the SoP – ie the cl 5(a) inability must materially contribute to or aggravate the IFA disease – raises, it is said, a question of causation which relates to the course of the disease itself. Unless the inability affects the course of the disease, it is irrelevant for the purposes of the SoP. In consequence, the definition her Honour gave to the expression which would encompass measures that would improve quality of life without effect on the progress or outcome of the disease ignores the significance of the limitation cl 6 imposes upon cl 5(a). 38 Further, it is said, "clinical management" in this context bears its medical meaning of "the technique of treating all manifestations of a disease etc": New Shorter Oxford English Dictionary, "management" (5th ed 2002); rather than its general meaning as relied upon by the Tribunal. The provenance of the SoP, it is said, suggests that this is likely to have been the intended meaning: it was developed by an expert medical panel and needs to be interpreted against that background: Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 at [113]. Put shortly, it is contended, the inability has to occasion some change, or to prevent the effective use of treatment to make a change, in the pathology of the disease: see Johnston v The Commonwealth [1982] HCA 54; (1982) 150 CLR 331 at 338-339. 39 In putting this submission counsel for the Commission has not shrunk from acknowledging that, given the evidence of the probable inefficacy of known treatments for IFA, it may be the case that the prospects of anyone being able to adduce evidence to satisfy cl 5(a) as limited by cl 6 at present is simply a pious hope. If there is a treatment that may be able to slow down or cure the disease, it is for the present unknown. 40 What is, perhaps, striking about this submission is that it raises the question why the Authority would have determined such an SoP given its statutory obligation to form the view that "on the sound medical-scientific evidence available it is more probable than not that [IFA] can be related to ... defence service" – albeit the SoP is limited to a prescribed fact which makes a material contribution to, or aggravation, of a disease which itself is of unknown origin. We will return to this. 41 We have been informed, and the primary judge had the material before her, that there are forty instances in SoP of diseases having as their only prescribed factor, a factor identical to cl 5(a). It has not, though, been suggested that all of these diseases are untreatable. 42 We are satisfied that, while the ordinary meaning of "appropriate clinical management" would encompass those matters to which the primary judge referred, that is not the meaning that the expression has in this context and this because of the limitation imposed on cl 5(a) by cl 6 of the SoP. The cl 5(a) inability must occasion a material contribution to, or aggravation of the IFA disease. The requirement that the inability affect the disease itself is the common thread that runs through s 70(5), s 120B(3), s 196B(3) and cl 5(a) as limited by cl 6 of the SoP. To this extent we agree with the appellant’s submissions. 43 However, we do not on the material before us accept that the expression "appropriate clinical management" envisages only positive treatment of the disease. Both the Tribunal and Dr Waring expressed opinions consistent with the propositions that advice properly could and should be given to a patient in the proper course of providing a prognosis that he or she desist from certain activities (eg to stop smoking) or take other steps (eg to lose weight or to cease to work on submarines) as measures designed to preclude exacerbation of the disease’s inexorable progress. Let it be accepted that, on the evidence, there was no treatment recognised to be efficacious in halting the progress of the disease let alone of curing it. Nonetheless, we are satisfied that the making of prudential recommendations as to the taking of, or refraining from, courses for the purpose of thereby foreclosing the possible impacts of extraneous causes that might be likely to accelerate the progress of the disease may, in appropriate circumstances, properly be regarded as falling within appropriate clinical management for cl 5(a) purposes. In expressing this view, we agree with the primary judge’s conclusion that providing advice as part of the appropriate clinical management of a condition in relation to factors not mentioned in the SoP does not undermine the regime of SoPs. 44 A further consequence of our view is that, notwithstanding that there may not be an efficacious positive treatment for IFA, a failure to diagnose IFA could itself be a manifestation of an inability to obtain appropriate clinical management of IFA because it would preclude the giving of advice for the purposes we have mentioned. In such circumstances the cl 6 limitation would then be brought into play. 45 We conclude, then, that the Tribunal erred in the construction it placed on cl 5(a) as limited by cl 6, as did the primary judge, to the extent that the construction given was an overinclusive one. Nonetheless, both the Tribunal and her Honour were correct in rejecting the unduly narrow construction proposed by the appellant. The significance and practical consequence in this appeal of the Tribunal’s error will later become apparent when we consider the grounds of appeal which relate to the cl 6 limitation on cl 5(a) of the SoP.
Ground 2.1(c)
The error alleged is the finding that a SoP is not a conclusive statement of the factors that may aggravate a disease.
46 We have in substance given our view on this ground in what we have said above about the proper meaning of cl 5(a) as limited by cl 6. If providing advice on extraneous factors that could possibly accelerate the progress of a disease constitutes appropriate clinical management of that disease as we have held, then it is not to the point that such other "factors" are not referred to in the SoP. Rather, they are capable of being captured by what the factor that is prescribed comprehends. We return to this matter below in our consideration of the grounds of appeal relating to cl 6 of the SoP. We reject this ground of appeal.
Ground 2.1(d)
This ground is based on the Commission’s proposed construction of cl 5(a) in light of which it is asserted there was no evidence that this factor existed.
47 The premises of this ground are that the standard treatment for IFA in the 1970’s was, in Dr Waring’s view, inappropriate and the fact that Mr Money received no treatment was "serendipitously appropriate". Again we have indicated our view that the expression used in cl 5(a) is not limited to the provision of some beneficial treatment that was available for the disease. It could encompass recommendations as to the taking of reasonable precautionary measures to preclude the exacerbation of the disease’s progress, a matter on which the Tribunal focussed in some detail.
Grounds 2.1(e) and (f)
The premise of these grounds is that if the cl 5(a) factor was made out it was not properly related to service under s 196B(14).
48 The Tribunal made no express finding as to which if any of the s 196B(14) means existed by which the SoP factor could be related to Mr Money’s service. The appellant contends that the primary judge’s finding that subpara (14)(a) provided the relationship was inappropriate and inapt. That finding, to reiterate, was that the cl 5(a) inability resulted from "occurrences" while Mr Money was serving in the Navy. 49 The reason it is said subpara (14)(a) is inappropriate is because it is not one of the relevant connections with defence service envisaged by s 70(5). Seemingly that subsection is so relied upon because it is said to provide the foundation on which, in the case of the IFA SoP, s 120B(3) and s 196B(3) and (14) build. In our view, it is unnecessary to attempt to unravel this aspect of this ground of appeal. We would note that s 196B(14) does not on its face purport to so limit the ability of a claimant to establish a subpara (14) relationship with defence service in the way proposed by the appellant. This said, it is also obvious that particular SoP factors are likely to be of such a character as to limit the types of subpara (14) relationships that will be appropriate to establish their relationship to defence service. 50 We are satisfied that subpara (14)(a) is inapt in the circumstances to relate the cl 5(a) factor to Mr Money’s defence service. We agree with the appellant’s submission that it strains the ordinary meaning of the word "occurrence" in this setting. The word more naturally refers to an event, incident or happening or a combination of such events, etc which caused a factor to occur. While one may be able to isolate examples of the system’s failure in the medical management structure which affected Mr Money, these were simply manifestations of "the state of affairs" (as the Tribunal so described it) that caused Mr Money not to be provided with appropriate clinical management. It was that state of affairs (which was not an "occurrence"), not the individual instances manifesting it, that produced the cl 5(a) inability. 51 Our rejection of this conclusion does not end this matter as there was, as the Commission accepts, an alternative basis upon which a subpara (14) relationship could be advanced. This leads to the next ground of appeal.
Ground 2.1(g)
This ground asserts there was no evidence to support a finding that the cl 5(a) factor was related to Mr Money’s defence service.
52 Consistent with what we have said, a failure to diagnose and hence to recommend what the Tribunal described as appropriate "prophylactic measures", could in appropriate circumstances properly be found to constitute an inability to obtain appropriate clinical management of a disease. For the purposes of this ground of appeal we assume such to have been established, the relevant issue here being whether that inability was, for s 196B(14) purposes, related to Mr Money’s defence service. 53 The Commission apparently accepts that if the cl 5(a) factor could be shown to arise out of, or was attributable to his service, the requirements of subpara (14)(b) would be satisfied. The submission that is made is that there was no finding made by the Tribunal that Mr Money’s IFA should have been diagnosed during his defence service and would have been diagnosed if he had been a civilian. Further, it is said there is no evidence that Mr Money would have received the "prophylactic" advice if he had been properly advised at the time by a civilian doctor using reasonable care and skill. Reliance was placed on the reasoning in Lee v Minister of Pensions [No 2] (1948) 3 WPAR 1901 at 1914, approved in Johnston v The Commonwealth [1982] HCA 54; (1982) 150 CLR 331 at 339. 54 There is, in our view, a short answer to this. There was the expert evidence of Dr Waring before the Tribunal that a diagnosis could have been made in 1979 (during the period of Mr Money’s defence service) and no differentiation was made between civilian and defence medical practitioners; the Tribunal’s conclusion that there was a systems failure in the medical management structure that the Navy had in place in relation to Mr Money’s disease was itself premised upon the failure to diagnose when a diagnosis could and should have been made; and the Tribunal itself indicated what in the circumstances appropriate medical management of Mr Money would at the time have required. As her Honour concluded (at [55]), it is clear that the Tribunal did consider the comparative issues of service and civilian care mandated by Lee and Johnston which form the basis of the appellant’s submission. It is, in our view, clearly implicit in the Tribunal’s reasons that, but for the Navy’s systems failure, the IFA could and properly would have been diagnosed by doctors (service or civilian) during the period of Mr Money’s service and that, if diagnosed, he would have received appropriate advice from medical practitioners (military or civilian) concerning precautionary measures. 55 We are satisfied that for s 196B(14) purposes, the inability Mr Money suffered was attributable to his defence service. As her Honour observed (at [55]), he would not have been subject to a systems failure of the Navy’s medical management structure if he had not been serving in the Navy.
Grounds 2.1(h), (i), (j), (l)
This group of grounds all focus in varying ways on the cl 6 limitation on the cl 5(a) factor, ie to satisfy cl 5(a), the inability to obtain appropriate clinical management must materially contribute to, or be an aggravation of, the IFA.
56 The grounds assert, variously, there was no evidence that the progress of the disease was contributed to in a material degree, or was aggravated, by Mr Money’s inability to obtain appropriate clinical management; Dr Waring’s evidence could not support a finding that the IFA had been aggravated because of Mr Money’s service (its rate of progression was "extremely unusual" and very slow); the failure to advise him to cease working on submarines could not have been characterised as an ingredient in not obtaining appropriate clinical management, as he ceased such work in 1974; and there was no evidence that Mr Money’s continued smoking, his being overweight, etc could aggravate IFA. 57 We deal with these matters compositely because we are satisfied that the Tribunal erred in its dealing with cl 6 of the SoP. That clause appears to have received a somewhat different emphasis in this appeal from what appears to have been the case before her Honour. That difference probably accounts for the errors we now discern in her reasons. More importantly it reveals a vice in the Tribunal’s decision which requires correction. 58 We have already indicated that the Navy’s failure to diagnose Mr Money’s IFA, and the consequent failure to provide advice to him could, with an appropriate evidentiary foundation, have resulted in Mr Money’s inability to obtain appropriate clinical management of his disease for the purposes of the SoP. However, for such to be the case, the cl 6 limitation on cl 5(a) had to be satisfied. 59 It was insufficient to show that, according to the "plain English" meaning (the Tribunal’s description: Reasons [46]) of the expression "appropriate clinical management" or in the "broadest sense" of the term (Dr Waring’s evidence), there was simply an inability to obtain such management. Before such an "inability" could qualify as a cl 5(a) factor it had to be shown to have contributed in a material degree to, or aggravated, Mr Money’s very slowly progressive disease. 60 The Tribunal explicitly recognised that "aggravation of a disease" was an issue before it (eg Reasons [40]). However, by focussing on what it regarded as external stimuli (exposure to toxic fumes in submarines, smoking and being overweight) and whether they aggravated Mr Money’s IFA, the Tribunal failed properly to address that issue in the context of the SoP. It did so, we consider, because it did not fully appreciate the character of the limitation cl 6 imposed on cl 5(a). 61 Influenced perhaps by observations of Windeyer J in Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 640 concerning a progressive disease being "susceptible of being hastened by external stimuli", the Tribunal focussed on the external stimuli at the expense of pursuing the inquiry necessitated by cl 6 of the SoP. 62 The factor specified in cl 5(a) as qualified by cl 6 must exist before it can be said that IFA is connected with the circumstances of a person’s relevant service. If it does not, it is irrelevant that there may have been other "external stimuli" which aggravated Mr Money’s condition. For cl 5(a) purposes, the exposure to toxic fumes, smoking and being overweight would only be relevant if, as a result of the failure to diagnose, there was a failure, or inability, to advise Mr Money on precautionary measures and this resulted in continued exposure to toxic fumes, etc so materially contributing to, or aggravating, his IFA. 63 While Mr Money’s exposure to toxic fumes in submarines may in fact have aggravated his IFA it would seem likely that he ceased so to work long before his IFA could or should have been diagnosed. The evidence on this, as we have said, is somewhat uncertain. In these circumstances, the question of advising him to give up such work after he had been diagnosed simply would not arise at all as an element in appropriate clinical management for cl 5(a) purposes. 64 In relation both to his smoking (which he gave up in 1994) and to his being overweight, like connections to cl 5(a) and cl 6 had to be established if the failure to advise him earlier to give up smoking and to lose weight and his consequent failure to do so until some later time with a resultant aggravation of his disease, could be relied upon to help establish via cl 5(a) that his disease was connected with his service. 65 The Tribunal did find that Mr Money’s smoking was an "external stimulus that was causally related to his service, and that accelerated the natural course of his IFA". Unless and until the Tribunal had found that the cl 5(a) factor existed, the first of these findings was irrelevant. The second, in our view, seems to be without evidentiary foundation at all. That Mr Money’s disease was progressive cannot be used to support an inference that his continued smoking because of the failure to diagnose and then warn him accelerated the disease’s progress. 66 Mr Money’s being overweight was found not to be causally relate to his service. We again note that the cl 5(a) inquiry does not raise this as a relevant question. The Tribunal went on to hold that if he had been advised to lose weight earlier, he would have and that "would have prolonged his life span and improved the quality of the life left for him". Again we question where the evidence was for this finding. 67 What the above displays is that the Tribunal simply did not appreciate the task set for it by cll 5(a) and 6. In consequence it devoted its attention primarily to three external stimuli which, unless linked to the cl 5(a) inquiry in the way we have indicated, were irrelevant to it. 68 The Tribunal concluded this part of its reasons with a general ("Furthermore") paragraph in which it found that because of the delay in the IFA diagnosis, "there was delay in initiating prophylactic measures that would have protected his spare lung capacity that was being inexorably eroded": Reasons [81]. What the Tribunal did not address (save earlier and obliquely in relation to being overweight) was whether the delay in initiating all or any of such measures could properly have been said on the evidence to have made a material contribution to, or to have aggravated, his disease. 69 We are not prepared to conclude that this must have been implicit in the Tribunal’s findings because we are not satisfied that the Tribunal actually identified what was its primary task. This was to determine whether the cl 5(a) factor as limited by cl 6 existed. It is on this basis that we allow the appeal.
CONCLUSION
70 The appellant not only seeks an order that the appeal be allowed but that we find that Mr Money’s disease was not defence-caused, it being said that this would be the only conclusion open to the Tribunal if the matter be remitted. We are unprepared to make such a finding. The appellant’s submission is based in some degree on the construction it placed upon the SoP. We have not accepted that construction. 71 We will order that –
(1) the appeal be allowed;
(2) the decision of
the Tribunal be set aside; and
(3) the decision be remitted to the Tribunal for further hearing and determination according to law.
Associate:
Dated: 13
February 2009
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WESTERN AUSTRALIA DISTRICT REGISTRY
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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AND:
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DATE:
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PLACE:
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ADELAIDE (VIA VIDEO LINK TO PERTH)
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REASONS FOR JUDGMENT
DOWSETT J:
Where: (a) ...
72 I have read the reasons prepared by Finn J. Although I concur in the orders proposed by his Honour, my reasons for so doing are somewhat different. However I will try to avoid repetition of the facts of the case. 73 This is an appeal from a decision of Stone J, upholding a decision of the Administrative Appeals Tribunal (the "Tribunal"). By that decision the Tribunal upheld an appeal against a decision of the present appellant (the "Commission") pursuant to s 70 of the Veterans’ Entitlements Act 1986 (Cth) (the "Act"). Section 70(1) provides relevantly:
(b) a member of the Forces ... has become incapacitated from a ... defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) ...
(d) in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
For the purposes of this Act ... a disease contracted by such a member shall be taken to be a defence-caused disease if: ... (d) the ... disease from which the member ... has become incapacitated:
74 The Tribunal held that Dennis John Money (the "Veteran") was entitled to a pension pursuant to s 70. Since the hearing at first instance, the Veteran has died. However the question of his entitlement to a pension is still of practical importance to his estate. 75 Pursuant to s 70(5):
(i) was ... contracted during any defence service ... of the member, but did not arise out of that service; or(ii) was ... contracted before the commencement of the period, or the last period, of defence service ... of the member, but not during such a period of service;
...and, in the opinion of the Commission, the ... disease was contributed to in a material degree by, or was aggravated by, any defence service ... rendered by the member, being service rendered after the member ... contracted that disease;
Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
76 At some time prior to the Veteran’s discharge from the Royal Australian Navy (the "Navy") on 13 March 1983, he contracted a respiratory disease known as idiopathic fibrosing alveolitis ("IFA"). The evidence indicated that this condition should have been diagnosed on or before 30 April 1979. In para 69(3) et seq of its reasons the Tribunal suggested an earlier date, namely 9 June 1978, but that does not matter for present purposes. The Veteran had rendered "defence service" for the purposes of the Act from 7 December 1972 until his discharge. By virtue of s 70(5)(d) the disease was to be treated as a "defence-caused disease" if the Commission formed the opinion that it was contributed to in a material degree by, or was aggravated by, his defence service. In considering the matter, the Commission was obliged to comply with the requirements of s 120(4) which provides:
In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that ... a disease contracted by a person ... was ... defence-caused only if:
77 This obligation is further regulated by s 120B(3) which provides:
(a) the material before the Commission raises a connection between the ... disease ... of the person and some particular service rendered by the person; and
(b) there is in force:
that upholds the contention that the ... disease ... of the person is, on the balance of probabilities, connected with that service. ...(i) a statement of principles determined under subsection 196B(3) or (12); ...
If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of ... disease ... can be related to: (a) ...
78 It might be thought that the concluding words of the subsection, commencing with the words "that upholds", apply to both paras (a) and (b). However such a construction would, in effect, require that the "connection" postulated in para (a) uphold its own validity. I reject that construction. The preferable construction is that s 120B(3)(a) contemplates a postulated connection between the disease and the Veteran’s service. Section 120B(3)(b) requires a consideration of whether the relevant statement of principles upholds that postulate. 79 Section 196B provides for the formulation of statements of principles. Section 196B(3) provides:
the Authority must determine a Statement of Principles in respect of that kind of ... disease ... setting out: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that on the balance of probabilities, ... [a] disease ... of that kind is connected with the circumstances of that service.(b) defence service (other than hazardous service) rendered by members of the Forces;
The "Authority" is the Repatriation Medical Authority (s 196A).
A factor causing or contributing to, ... [a] disease ... is related to service rendered by a person if:
80 The reference to "balance of probabilities" reflects the concluding words in s 120B(3)(b). A statement of principles will only be "determined" if the Authority is satisfied that, on "sound medical-scientific evidence", it is probable that the disease in question can be related to defence service. It does not follow from such satisfaction that every contraction of that disease by a veteran, even whilst serving, will necessarily be related to such service. It will merely demonstrate that such an etiology is possible. Once it is so satisfied, the Authority is to determine the factors which must exist before it can be said that, on the balance of probabilities, the disease is connected with the circumstances of the relevant service. 81 Where numerous factors are prescribed, not all need necessarily be connected to the circumstances of the relevant service. See s 196B(3)(d). The phrase "related to service rendered by a person" differs from the clause "that, on the balance of probabilities, [a] disease ... of that kind is connected with the circumstances of that service", which clause appears in the concluding words of s 196B(3). The phrase is concerned with the relationship between a factor (as determined by the Authority) and relevant service. The clause is concerned with the connection between the disease and the circumstances of such service. The use of these different terms suggests that a factor may not be a disease; a relationship may not necessarily be a connection; and service may not necessarily be the circumstances of such service. 82 A factor will be related to service rendered by the relevant person if one of the tests prescribed by s 196B(14) is satisfied. For present purposes the section relevantly provides:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
...
(d) it was contributed to in a material degree by, or was aggravated by, that service ... .
(Original emphasis.)
Factors that apply only to material contribution or aggravation Paragraph 5(a) only applies to material contribution to, or aggravation of, idiopathic fibrosing alveolitis where the person’s idiopathic fibrosing alveolitis was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 75(d) of the Act refers.
83 The words "contributed to in a material degree by, or was aggravated by" here apply to a relevant factor. The same words are also used in s 70(5)(d) where they apply to the disease. 84 The statement of principles is set out in the reasons prepared by Finn J. In para 5 one factor is identified as necessary in order that IFA be capable of connection to a veteran’s service. It is "inability to obtain appropriate clinical management for [IFA]". Paragraph 4 provides that the factor identified in para 5 must be related to relevant service. For present purposes, it must satisfy one of the three paragraphs of s 196B(14) to which I have referred. However para 4 is also said to be subject to para 6 which provides:
85 In my view this paragraph does not address the relationship between the para 5 factor and a veteran’s service. It rather addresses the causal connection between the disease and such service which is contemplated in s 70A(5)(d). As the cause of IFA is unknown, it cannot be shown to have been caused by relevant service. However s 70(5)(d) requires that it be treated as defence-caused if it has been materially contributed to, or aggravated by, relevant service. Paragraph 6 of the statement of principles is designed to exclude the possibility that it might be argued (perhaps faintly) that (contrary to the medical-scientific evidence) the condition may have been caused by (rather than materially contributed to, or aggravated by) an inability to obtain appropriate clinical management. 86 Section 120B(3) imposes a significant limitation upon the circumstances in which the Commission may find that a disease is defence-caused. It prescribes a two-step process. Firstly, the Commission must, on the material before it, identify any connection between the disease and a veteran’s service. Secondly, it must consider whether the relevant statement of principles "upholds the contention" that the disease is, on the balance of probabilities, connected with such service. If that question is answered in the affirmative, the Commission may proceed to consider whether it is reasonably satisfied as to the relevant causal link contemplated by s 70. In the present case there was no established link between contracting the disease and the Veteran’s service. He necessarily relied upon s 70(5)(d). Hence the question to be answered is whether his service materially contributed to, or aggravated, his condition. The Commission must answer that question in accordance with ss 120(4) and 120B(3). Section 120(4) requires that the Commission be reasonably satisfied as to such matter. Section 120B(3)(a) requires that before the Commission can be so satisfied, it must identify a connection between the material contribution or aggravation of the Veteran’s IFA and his service. The Commission must then consider whether the statement of principles upholds the contention that any contribution to, or aggravation of, his IFA was connected with his service. The statement of principles would only do so if he had been unable to obtain appropriate clinical management for his IFA, and such inability was related to his service. 87 The logical starting point is identification of the connection. It is to be found in the material before the Tribunal, not in the statement of principles. However, in practice, it may be convenient to start with the statement of principles simply because it may help the Commission to identify relevant aspects of the material which it must consider. Nonetheless, the connection must have a factual basis demonstrated in such material. For present purposes, it would not be sufficient to identify the connection as being simply "inability to obtain appropriate clinical management". That inability would not, itself, demonstrate a connection between any material contribution to, or aggravation of, the Veteran’s condition and his service. That process necessarily involves: • identification of a discernible material contribution or aggravation; and • description of the connection between such contribution or aggravation and the Veteran’s service. 88 As far as I can see the Tribunal did not seek to identify any discrete contribution to, or aggravation of, the Veteran’s condition. It rather concluded that the Veteran had been unable to obtain appropriate clinical treatment of the disease because the Naval medical personnel had failed to diagnose it, and then identified ways in which such failure may have affected his health. At para 73 of the reasons, the Tribunal opined that fumes inhaled in submarine service could have aggravated his IFA. At paras 74-77 the Tribunal found that his smoking was causally related to his service and that it had "accelerated the natural course of his IFA". The Tribunal concluded that the Veteran’s being overweight could not be related to his service but "has a bearing on whether there was inability to obtain appropriate clinical management". 89 The Tribunal was concerned to determine whether these matters were related to the Veteran’s service. That question was, as far as I can see, irrelevant to its task. Setting aside the provisions of the Act, the submarine fumes, the Veteran’s smoking or his being overweight could only be connected to his IFA if it had: • caused him to contract it; or • aggravated it. 90 Another possibility is that one or other of those matters may have caused its own, discrete damage. 91 The evidence demonstrates that there is no basis for concluding that any of these matters caused his IFA. The statement of principles reflects that position. If any of those matters caused separate, and discrete damage, then that may have been a basis for a separate claim (depending upon the medical-scientific evidence), but no such claim was made in these proceedings. The claim was that his IFA had been aggravated. In my view, those matters were relevant only to the extent that they were part of a possible causal connection between the inability to obtain appropriate clinical management and some contribution to, or aggravation of, his IFA. 92 The Commission appears to have treated the fumes, his smoking and his being overweight as having, apart from the Veteran’s inability to obtain appropriate clinical management, materially contributed to, or aggravated, his condition. That this was the Tribunal’s approach is suggested by its initial consideration of whether they were service-related and its later, and separate, consideration of the consequences of his inability to obtain appropriate clinical management (which included his continued smoking and being overweight). In my view, that was their only relevance. It did not depend upon their being service-caused. I should also point out that the Veteran’s submarine service ended in 1974. As the evidence demonstrates that the disease should have been diagnosed not later than 30 April 1979 (or 9 June 1978), failure to diagnose the condition did not deprive the Veteran of the opportunity to avoid any aggravation of his condition by continuing to serve in submarines. 93 In para 81 the Tribunal considered the steps which might have been taken had there been an earlier diagnosis. They were:
• 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.
After considering all of the material before it, and for the reasons outlined above, the Tribunal finds that it is not satisfied on the balance of probabilities that the incapacity resulting from the disease idiopathic fibrosing alveolitis was not defence-caused.
94 In para 81 the Tribunal asserted that such measures would have "protected his spare lung capacity that was being inexorably eroded", presumably by his IFA. The Tribunal had previously (in para 77) found that smoking had accelerated the natural course of his disease. To the extent that the statement in para 81 referred to the consequences of his smoking, the two statements were inconsistent. The statement in para 77 asserted aggravation of his IFA. The statement in para 81 suggested that his smoking had, itself, damaged his lungs, producing an effect which was separate from, but cumulative upon, that of his IFA. His being overweight also seems to have been treated as causing its own damage to the lungs, rather than as contributing to, or aggravating, his IFA. Further, it seems that the Veteran smoked and was overweight for many years prior to 30 April 1979. No attempt was made to identify the extent to which those circumstances had contributed to, or aggravated, his condition before, rather than after, that date. 95 All of this highlights the consequences of the Tribunal’s apparent failure to identify any particular contribution or aggravation which could be attributed to the Veteran’s inability to obtain appropriate clinical management. In the present case such identification was especially important given that his disease actually progressed more slowly than might usually be expected. The failure to identify the contribution or aggravation necessarily led to there being no identification of the connection between it and the Veteran’s service. It was simply assumed, as was the "upholding" of the contention that there was such a connection as contemplated in s 120B(3)(b). In my view the Tribunal failed to observe the requirements of ss 120 and 120B. It became preoccupied with the failure to diagnose the disease and the steps which would have been taken thereafter. Its treatment of those matters was very helpful. However, unlike the primary Judge, I conclude that the Tribunal misunderstood its function when, at para 83, it observed:
96 Pursuant to s 120(4) the Commission was required to consider whether it was reasonably satisfied that the Veteran’s condition was materially contributed to, or aggravated by, his service. The Tribunal bore the same responsibility. The wording of para 83 (above) may have been derived from ss 120(1) and 120(2), the "civil" onus being inserted in lieu of the "criminal" onus. This suggests that the Tribunal appreciated that there was a difference between the requirements of ss 120(1) and (2), on the one hand, and s 120(4), on the other, but did not appreciate the full extent of the difference. Such a misunderstanding may account for the failure to consider whether the evidence demonstrated any material contribution to, or aggravation of, the Veteran’s IFA as a result of the failure to diagnose it at an earlier stage. The Tribunal proceeded upon the basis that once the Veteran had postulated a theory, it was for the Commission to exclude it. 97 It is not strictly necessary that I say any more about this case. However two other important issues were raised. I will say a little about them but will not express concluded views. The first is whether the Veteran was "unable" to obtain appropriate clinical management of his condition. The question involves construction of the statement of principles. The word "inability" may suggest physical incapacity, but impracticability may be sufficient. The Authority probably had in mind a situation in which a veteran’s service made such management impracticable. In any event, where a person is unaware of a medical condition requiring clinical management, he or she may be unable to obtain such management simply because no medical practitioner would advise it, or provide it, in the absence of an appropriate diagnosis. 98 The second issue is whether that factor was related to the Veteran’s service in one of the ways identified in s 196B(14). The answer may depend upon his conditions of service, including his entitlement to medical attention provided by the Navy, and any aspects of his service which may have prevented his obtaining medical advice and care from "non-Naval" sources. It seems to have been assumed that the Veteran was entitled to rely upon the adequacy of the medical treatment and advice offered by the Navy. That may be so. However it was still necessary to decide whether his incapacity to obtain appropriate clinical management was within one of the three possible "relationships" contemplated in paras (a), (b) and (d) of s 196B(14). 99 The Tribunal erred in focussing on the statement of principles to the exclusion of any proper consideration of the question posed by s 70(5) in accordance with ss 120(4) and 120B(3). The question posed by s 120B(3)(a) was not addressed, and so that posed by s 120B(3)(b) could not be addressed.
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I certify that the preceding twenty-eight (28) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Dowsett.
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Associate:
Dated: 13 February 2009
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Solicitor for the Appellant:
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Australian Government Solicitor
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Counsel for the Respondent:
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Mr R McCormack with Mr R Grayden
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Solicitor for the Respondent:
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Sonia Edwards & Associates
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/11.html