Dorothy Irene Prestegar v the Repatriation Commission [1997] FCA 74 (14 February 1997)

CATCHWORDS

REPATRIATION PENSION - Death arising from war-caused illness - claim by widow of veteran - connection between death and war service - Commission required to find death war-caused unless satisfied beyond reasonable doubt that no sufficient ground for so finding - construction of Veterans' Entitlements Act 1986 (Cth), s 120.

Bushell v Repatriation Commission (1992) 174 CLR 408

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

Repatriation Commission v Owens (1996) 70 ALJR 904

DOROTHY IRENE PRESTEGAR v THE REPATRIATION COMMISSION

No VG 772 of 1995

NORTHROP J

MELBOURNE

14 FEBRUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No VG 772 of 1995

GENERAL DIVISION

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

(VETERANS APPEALS DIVISION) CONSTITUTED BY

DEPUTY PRESIDENT G L McDONALD

B E T W E E N :

DOROTHY IRENE PRESTEGAR Applicant

A N D :

THE REPATRIATION COMMISSION Respondent

COURT: NORTHROP J

PLACE: MELBOURNE

DATE: 14 FEBRUARY 1997

MINUTES OF ORDERS

1. The appeal be allowed with costs.

2. The decision of the Tribunal be set aside.

3. The matter be remitted to the Tribunal to be determined according to law after considering such further material as is allowed.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No VG 772 of 1995

GENERAL DIVISION

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

(VETERANS APPEALS DIVISION) CONSTITUTED BY

DEPUTY PRESIDENT G L McDONALD

B E T W E E N :

DOROTHY IRENE PRESTEGAR Applicant

A N D :

THE REPATRIATION COMMISSION Respondent

COURT: NORTHROP J

PLACE: MELBOURNE

DATE: 14 FEBRUARY 1997

REASONS FOR JUDGMENT

This appeal illustrates the continuing difficulty being experienced in the construction and application of section 120 of the Veterans' Entitlements Act 1986 (the "Act"). These difficulties continue to arise despite the clear expositions, one may almost say exegesises, by Justices of the High Court in cases such as Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 and Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564. It is most important that the decision maker, in considering the construction and application of section 120, adopts the proper methodology. If that is not done, there is a real danger that the decision may be affected by error. It is accepted that the Court, in considering an appeal on a question of law under the Administrative Appeals Tribunal Act 1975 , should not look too critically at the modes of expression used by members of the Tribunal. At the same time, care must be taken to ensure that imprecise expressions of view do not prevent the Court from concluding that errors of law do in fact exist. It is because of the apparent conflict between these principles that it is important that the proper methodology be adopted. This will assist the decision maker as well as the Court in reaching the correct conclusions. At the same time the mere recital of a formula will not be sufficient to obscure an error of law.

As will appear later in these reasons, a basic defence to the appeal is that the decision of the Tribunal was based on a question of fact and did not raise any question of law. It is not easy to ascertain the basis of the decision but it appears that the Tribunal found "it is reasonable to hypothesise a connection between exposure to fuel of which benzene is one component and the onset of multiple myeloma" but that the exposure had to be "heavy". The Tribunal said it "is satisfied beyond reasonable doubt that the veteran's exposure could not be described as "heavy"" and therefore "the hypothesis connecting his war service with the multiple myeloma condition is not able to succeed".

Counsel for the Commission contended that those findings constituted questions of fact and could not constitute an appeal on a question of law. Since the hearing of the appeal, the High Court, in refusing special leave to appeal, has identified the difference between a question of fact and a question of law in cases where section 120 of the Act has application.

In Repatriation Commission v Owens (1996) 70 ALJR 904, the High Court constituted by Brennan CJ, Gaudron and Gummow JJ, refused special leave to appeal from the judgment in Owens v Repatriation Commission (1995) 59 FCR 559. The reasons of the High Court were expressed by Brennan CJ as follows:

"Section 120(3) of the Veterans' Entitlements Act 1986 (Cth) specifies the condition on which the Commission is to be satisfied of the negative proposition that there is no sufficient ground for determining that an injury was war-caused or defence-caused. The condition is the formation of an opinion by the Commission on the material before it, that is, the whole of the material before it, that that material does not raise a reasonable hypothesis connecting the injury with the circumstances of the claimant's war or defence service.

The question whether, for the purposes of s 120(3) of the Veterans' Entitlements Act 1986 , material raises a reasonable hypothesis is a question of fact for it involves no more than a determination whether an hypothesis of connection is reasonable. Here, the Administrative Appeal Tribunal, reviewing the decision of the Commission and exercising the powers conferred by s 120, found that "the circumstances and submissions put before us do not raise a reasonable hypothesis .... connecting [the present respondent's] disease with the circumstances of his war service".

The only appeal from that decision lay to the Federal Court but that appeal was limited to a question of law. The purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Administrative Appeals Tribunal. This distribution of function is critical to the correct operation of the administrative review process.

Lockhart J correctly perceived that the issue before the Administrative Appeals Tribunal was a question of fact. The Administrative Appeals Tribunal had not simply chosen between two professional opinions but accepted that the actual cause of the claimant's injury, an adenocarcinoma, had been identified and thus any hypothesis was excluded. A majority of the Full Court allowed an appeal from Lockhart J but their Honours seemed to have misunderstood the nature of the issue arising under s 120(3). It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material before the Administrative Appeals Tribunal.

Although the applicant has shown a prima facie case of error on the part of the majority of the Full Court, the insertion of ss 120A and 120B by the Veterans' Affairs (1994-94 Budget Measures) Legislation Amendment Act 1994 (Cth) substantially diminishes the ground for seeking special leave to appeal.

The problem having been elucidated by this Court in earlier cases, it is not appropriate to grant special leave in this case. For that reason, special leave is refused."

In that passage, the reference to the problem having been elucidated by the High Court is a reference, at the least, to Bushell and to Byrnes.

The background facts of the appeal are not in dispute. The applicant is the widow of Donald William Prestegar ("the veteran"). She is claiming a pension under Part II of the Act. The veteran died on 5 January when aged 68 years. The cause of death was hypercalcaemia with antecedent causes being shown as bony metastases and multiple myeloma. At the hearing before the Tribunal, the applicant claimed that the veteran's multiple myeloma was connected to the effects of benzene fumes ingested during the period of his war service. The actual cause of that disease could not be identified. As was said by the Tribunal, at the hearing before it, the "hypothesis was raised by the applicant that the veteran's multiple myeloma was connected to the effect of benzene fumes during the period of his service". Earlier in its reasons the Tribunal had said:

"It is not disputed that the veteran had operational service for the purposes of the Act. Consequently, the standard of proof to be applied is that set out in s 120(1) and (3) of the Act."

The Tribunal, in its reasons, did not set out the whole or the relevant parts of subsections 120(1) and (3). The Tribunal did not summarize the effect of those subsections. The Tribunal, in its reasons, did not refer to Bushell or Byrnes or any other authority of the High Court or the Federal Court. The Tribunal referred to another decision of the Tribunal but only with respect to matters of fact and not to any principle of law. That decision appears to have no relevance to the present appeal.

The Tribunal referred to material before it contained in reports and evidence given by Associate Professor Bisby and a Mr J Devine, called on behalf of the applicant and Professor Fox, called on behalf of the Commission. The material, apart from that provided by the experts, can be summarized.

The veteran's service commenced in Victoria on 9 March 1942 when he was 19 years of age. He served in the Northern Territory for considerable periods between 1942 and 1944 and later in Morotai and Manila. During the period he was stationed in the Northern Territory, he was principally engaged as a despatch motorcycle rider. This entailed considerable riding and a significant amount of refuelling and maintenance of both his motorcycle and probably others, including the duty officer. The Tribunal found that cleaning and maintenance was generally undertaken with the use of agents such as petrol which included benzene and that refuelling of motorcycles was done from large drums from which spills were common. The veteran also had at least two falls from his motorcycle, each of which resulted in a quantity of petrol spilling onto his body, in one case causing burns to his face. The veteran was discharged from the army on 19 November 1946, aged 23.

Mr Devine was a troop mechanic in Darwin and observed the work being done of the veteran. He described some of those activities which suggested that the veteran ingested petrol fumes including benzene fumes. In its reasons, the Tribunal said:

"It was Mr Devine's evidence that he sometimes felt sick during the period in which he was the workshop mechanic and he attributed this to constant exposure to petrol fumes. It was plain that Mr Devine was exposed to the inhalation of fumes all day in the workshop environment because it was there that vehicles were being filled with petrol, that spillage was occurring and that servicing of parts, sometimes using petrol, was being carried out. Mr Devine's exposure could rightly be described as "heavy"."

It is difficult to see the relevance of this comment since Mr Devine was not making any claim.

The Tribunal summarized the evidence of Professor Bisby, a specialist in the field of occupational medicine and Toxicology. The Tribunal said of Professor Bisby:

"It was his opinion that benzene, one of the (many) component parts of petrol, was suspected of being the or a cause of an increased risk not only of multiple myeloma but also of leukaemia. Of the number of potential cancers, only multiple myeloma and leukaemia were thought to be linked to benzene exposure."

The Tribunal referred to the evidence of Professor Bisby relating to petrol and benzene and continued:

"In the case of the veteran, the Professor said that it was likely that he would be exposed to fumes when filling the petrol tanks of motor cycles and when cleaning parts (eg carburettors) where fuel was used as a cleansing agent."

The Tribunal then referred to the evidence given by Mr Devine and recorded the passage cited earlier in these reasons concerning Mr Devine.

Paragraphs 8 and 9 of the reasons of the Tribunal are set out:

"8. Professor Fox said that, whilst there was no proof of a connection between exposure to benzene and the contracting of multiple myeloma, it was reasonable to hypothesise that there was a connection in circumstances where a person had experienced heavy exposure.

9. Professor Bisby agreed in cross-examination that riding a motor cycle or driving a truck would not of itself provide significant exposure to petrol fumes. However, he maintained that the refuelling, cleaning and maintenance of such vehicles involving the use of fuel would be likely to provide daily exposure to petrol fumes, including benzene. He also agreed that the risk was directly proportional to the level and duration of the exposure. He said that it was not known if peaks of exposure, or average time weighted exposure, is the triggering factor but in either case the length of time involved in doing a job in which petrol fumes could be ingested was important. In his report of 25 July 1994 (exh A) Professor Bisby commented:

"Multiple myeloma has been linked with heavy and repeated exposures to petroleum products ...."

(emphasis added)"

The extract from the report of Professor Bisby set out in paragraph 9 appears out of context. The report was very comprehensive and was expressed under a number of headings. The extract appeared under the heading "Multiple Myeloma" which described that disease, similar diseases and the theoretical causes of that disease. The following two paragraphs are taken from that report, one of which contained the extract cited in the reasons. The paragraphs contained a general discussion only:

"Many occupations and substances have been investigated as possible causes or factors in multiple myeloma. Among the occupational groups of workers where increased risk of multiple myeloma has been reported are radiation workers; petroleum workers; painters and paint workers; asbestos workers; rubber workers; printers; automotive workers; metal machinists. Multiple myeloma has been linked with heavy and repeated exposures to petroleum products, asbestos, ionising radiation, and some pesticides. All these associations are not proven directly in individual cases, but through studies on large groups of workers demonstrating higher risk in the group. The linkages have not been shown in all workers exposed to these materials. It is known that a few (about 30) chemicals and compounds can cause cancer in workers exposed to them. The International Agency for Research on Cancer (IARC), which is part of the World Health Organisation, produces a reference list of occupational carcinogens. The cancers produced are again of a specific type or types relevant to the chemical in question.

Multiple myeloma (ICD 203), like other cancers of this broad grouping, may come on long after exposure to any causative or contributing exposure has begun or even ceased. This is the lag time between exposure and onset and may be many years after the exposure. This time is called the latency period. There is no good evidence for any numerical estimate of latency period in multiple myeloma resulting from chemicals or radiation exposure. However, the latent period may be very long, and up to several decades, such as would be the situation with Mr Prestegar if any risk arose from wartime exposures."

The report then sets out the facts relating to the war-time activities of the veteran and, for present purposes, they appear to have been accepted by the Tribunal. The report concludes:

"Opinion and Summary

Mr Prestegar handled and was exposed to war-time fuels at levels carrying at least a theoretical risk of causing, triggering, or contributing to his risk of developing multiple myeloma from which he died. In particular, he was exposed to Benzene (C₆H₆) in motor spirit during his war service. The concentration of Benzene in wartime gasoline was generally higher than at any period since. Mr Prestegar's exposure to Benzene may have been high at times during war service due to this factor and the conditions under which he filled his own motor cycle and because fuels were used for parts cleaning and as a general solvent. It is therefore reasonable to postulate that Mr Prestegar's exposure to Fuels and to Benzene contained in them, during Army service, could have contributed to his developing Multiple Myeloma some 40 years later.

In summary, there are reasons for concluding that Mr Prestegar's wartime exposures did contribute to the risk that he would develop multiple myeloma several decades later."

Paragraph 10 of the reasons of the Tribunal contains the conclusions of the Tribunal. The whole of that paragraph is set out although a large part of it refers to the earlier authority of the Tribunal referred to in these reasons. The relevance of that reference is doubted but no further reference is made to it.

"10. The Tribunal accepts that, since the evidence of Professors Bisby and Fox agree on this point, it is reasonable to hypothesise a connection between exposure to fuel of which benzene is one component and the onset of multiple myeloma. Again, both professors agree that there must be heavy exposure to the petroleum products and professor Bisby thought exposure must not only be heavy but also be "heavy and repeated". Such exposure could aptly be attributed to the witness for the veteran, Mr Devine, in the circumstances in which he found himself. However, since the veteran spent long periods of time (up to 12 hours a day) on a constant basis riding his motor cycle where there was no exposure to fumes which he could ingest and only short periods of time where he would have exposure, i.e. when filling the petrol tank of his and his officer's motor bike, cleaning the vehicles or occasionally servicing parts using fuel, the Tribunal is satisfied beyond reasonable doubt that the veteran's exposure could not be described as "heavy". In the matter of Evans and Repatriation Commission (unreported: Decision N⁰6427, dated 20 November 1990), the Tribunal upheld a decision regarding a similar claim. In that case the petroleum used by the veteran was aviation fuel which had a much higher benzene content (15 to 20 per cent) than motor vehicle petrol. In the instant case, the veteran spent two- thirds of his time over a 21/2 year period involved in maintenance and repair of vehicles involving the use of the aviation fuel. At paragraph 13 of its decision, the Tribunal stated:

"In order that there may no misunderstanding of the reasons for our decision, and no false hopes raised in respect of cases where veterans were exposed only to petrol for motor vehicles or only for brief periods to petrol containing benzene, we stress that we find that there is such a reasonable hypothesis because of the high benzene content of the aviation gasoline and the long and intensive exposure of the veteran to it. The scientific evidence before us would not have provided the factual basis necessary for the hypothesis to be a reasonable hypothesis if the veteran had been exposed only to petrol for motor vehicles even if the length and intensity of that exposure had been as great as was his exposure to the aviation gasoline."

Without expressing any opinion as to whether a veteran exposed only to motor vehicle petrol (containing benzene) may, if the circumstances of exposure are sufficiently heavy and repeated, be able to successfully mount a claim where multiple myeloma is subsequently diagnosed, the Tribunal is satisfied beyond reasonable doubt that for the reasons stated in the instant case the circumstances surrounding the veteran's involvement do not show heavy and/or repeated exposure. Accordingly, the hypothesis connecting his war service with the multiple myeloma condition is not able to succeed."

At this stage it is helpful to set out the relevant parts of section 120 of the Act. The section is directed to the issue of proof. No onus of proof arises; see subsection 120(6). The relevant parts of subsections 120(1) and (3) are set out:

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

.....

(3) In applying subsection (1) .... in respect of the death of a person related to the service rendered by the person, the Commission shall be satisfied beyond reasonable doubt, that there is no sufficient ground for determining:

(a) ....

(c) that the death was war-caused ....

if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... death with the circumstances of the particular service rendered by the person."

The method of applying subsections 120(1) and (3) can be summarized:

(a) Subsection 120(1) is the governing provision but its application depends first on consideration of matters arising under subsection 120(3).

(b) The first step is to identify the hypothesis said to establish the causation between the veteran's eligible war service and the death, injury or disease. The process of identifying the proper hypothesis from the material is a question of fact.

(c) The decision maker must be satisfied that the hypothesis is reasonable, by reference to the whole of the material, including expert evidence, where applicable. It is important to note, in this context, that subsection 120(3) does not prescribe an onus of proof for a hypothesis and the existence of alternative or conflicting hypotheses is irrelevant.

(d) Whether or not the hypothesis is reasonable is also a question of fact, not of law (Gilbert v Repatriation Commission (1989) 86 ALR 712).

(e) The decision maker must identify the facts said to provide a basis for the application of the hypothesis and determine whether these have been established in evidence. These are frequently referred to in the cases as the "raised facts".

(f) If the decision-maker concludes that the hypothesis is reasonable and supported by the raised facts (even though not required to be proved for this purpose) then the decision-maker must apply subsection (1) on the reverse onus of proof basis beyond reasonable doubt.

The true position is illustrated by the following extracts from the joint judgment of Mason CJ, Deane and McHugh JJ in Bushell at pages 414-416:

"The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ('the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. .... So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists ...."

".... a hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or to the known phenomena of nature' (Commissioner for Government Transport v Adamcik [1961] HCA 43; (1961) 106 CLR 292 at p. 306). Nor can it be reasonable if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous' (East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 at p. 532)."

"But leaving aside cases of those kinds, the case must be rare when it can be said that a hypothesis, based on raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge."

".... once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient to simply treat the case as governed by the application of s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist (cf. Barca v. The Queen [1975] HCA 42; (1975), 133 CLR 82 at p. 105)."

The application of the principles is illustrated in Byrnes in the joint judgment of Mason CJ, Gaudron and McHugh JJ at pages 569- 571. The following extract appears at p 571:

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

From a reading and re-reading of the relevant parts of paragraph 10 of the reasons of the Tribunal, the Court is satisfied that the Tribunal did not adopt the correct methodology in construing and applying subsections 120(1) and (3) of the Act. The two step procedure so clearly stated by the High Court was not followed. There appears to have been a confusion and stumble between the two steps. There is no clear statement of the hypothesis established from the raised facts. Is the hypothesis based on exposure to petrol containing benzene ? Must that exposure be "heavy" ? Must it be "heavy and repeated" ? Is the Tribunal's finding that it "is satisfied beyond reasonable doubt that the veteran's exposure could not be described as "heavy" directed to the establishment of the hypothesis under subsection 120(3) or the application of subsection 120(1) ? These doubts are strengthened by referring to the last part of paragraph 10; " .... the Tribunal is satisfied beyond reasonable doubt that for the reasons stated in the instant case the circumstances surrounding the veteran's involvement do not show heavy and/or repeated exposure. Accordingly, the hypothesis connecting this war service with the multiple myeloma condition is not able to succeed".

The Court does not accept the contention made on behalf of the Commission that the appeal to this Court is on a question of fact only. It is not clear what finding of fact had been made. The correct methodology had not been applied. This involves a question of law. It is unsafe in law to permit the decision to stand.

Accordingly, the appeal must be allowed with costs. The decision of the Tribunal must be set aside. The matter must be remitted to the Tribunal to be determined according to law after considering such further material as is allowed.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment of the Honourable Justice R M Northrop.

Associate:

Date:

ATTACHMENT

Counsel for the applicant Mr M J Croyle

Solicitors for the applicant Williams, Winter & Higgs

Counsel for the respondent Mr P J Hanks

Solicitors for the respondent Australian Government Solicitor

Date of hearing: 15 May 1996