Stafford v Repatriation Commission [2002] FCA 989 (30 July 2002)

Last Updated: 9 August 2002

FEDERAL COURT OF AUSTRALIA

Stafford v Repatriation Commission [2002] FCA 989

DEFENCE AND WAR- Veterans' entitlements - appeal from Administrative Appeals Tribunal affirming decision of Repatriation Commission - veteran's obesity found by Tribunal to be "disease" within s 9(1)(b) of Veterans' Entitlements Act 1986 (Cth) but no causal connection with operational service - no applicable Statement of Principles - failure by Tribunal to consider whether reasonable hypothesis existed

WORDS AND PHRASES - "reasonable hypothesis"

Veterans' Entitlements Act 1986 (Cth) ss 9(1)(b), 120(1) and (3)

Repatriation Commission v Bey (1997) 79 FCR 364 at 366 applied

Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1998) 79 ALR 267 at 276 applied

Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 276 cited

Repatriation Commission v Tuite (1993) 39 FCR 540 applied

Repatriation Commission v Deledio (1998) 83 FCR 82 at 96 applied

TERRENCE OWEN STAFFORD v REPATRIATION COMMISSION

T2 of 2002

HEEREY J

30 JULY 2002

HOBART

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T2 OF 2002

BETWEEN:	TERRENCE OWEN STAFFORD APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	30 JULY 2002
WHERE MADE:	HOBART

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The decision of the Administrative Appeals Tribunal, to the extent that it found that the applicant's condition of obesity was not war-caused, is set aside and the matter is remitted to the Tribunal, differently constituted, for further hearing and determination.

3. The respondent pay the applicant's costs of the appeal, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T2 OF 2002

BETWEEN:	TERRENCE OWEN STAFFORD APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	HEEREY J
DATE:	30 JULY 2002
PLACE:	HOBART

REASONS FOR JUDGMENT

1 The applicant appeals under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal insofar as that decision affirmed a decision of the Repatriation Commission dated 4 March 1997, in turn affirmed by the Veterans' Review Board, that the applicant's condition of obesity was not a war-caused disease within the meaning of s 9(1)(b) of the Veterans' Entitlements Act 1986 (Cth) (the VE Act).

2 There were other matters considered by the Tribunal but they are not relevant for present purposes. The Repatriation Medical Authority had not determined a Statement of Principles in respect of obesity and thus s 120A(3) of the VE Act was not applicable: see s 120A(4). The Tribunal found that obesity was a "disease" within the meaning of s 9(1)(b) of the VE Act. That finding was not disputed by the Commission on the appeal.

3 Section 9(1)(b) relevantly provides:

"(1) Subject to this section, for the purposes of this Act...a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(b) the...disease contracted...by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

4 Section 120 is in part as follows:

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

(3) In applying subsection (1)...the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining...that the disease was a war-caused disease...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... disease...with the circumstances of the particular service rendered by the person."

5 The applicant served in the Royal Australian Navy from 1954 to 1967. During his service he was engaged in periods of operational service within the meaning of s 6C of the VE Act in HMAS Anzac at the time of the Malayan Emergency.

6 Those periods commenced on 14 December 1955 and concluded on 8 October 1956. The periods were fragmented because Anzac was in and out of an operational area over that time. The longest consecutive period was between 7 August 1956 and 24 August 1956, a total period of 17 days. Apart from a period of 3 September 1956 to 14 September 1956, a period of 11 days, the other periods were for eight days and less.

7 There were two fairly long gaps in the applicant's operational service periods, namely between 22 December 1955 and 18 February 1956, a gap of almost two months, and also from 19 March 1956 to 6 July 1956, a gap of over three months. In a total period of over 10 months the operational service was 79 days.

8 The Tribunal accepted the applicant as a truthful witness and did not doubt his evidence.

9 In his witness statement, which was before the Tribunal, the applicant stated that while serving in Anzac he was a victualling stores rating. He stated:

"...As the victualling rating I was fed from the Officers Mess and I ate very well. In port, as part of my duties, I had to meet with and place orders with various contractors who provided us with our stores. Routinely I was entertained by the contractors with fine food and wine.

Whilst at sea on HMAS Anzac I engaged in little exercise. My office was next door to the galley and I was able to eat as much as I liked whenever I felt like it. As I had easy access to the food store I ate snacks throughout the day. Whilst serving on Anzac I increased my weight significantly and by 8 August 1957 my record stated that I was overweight and in the next 2 1/2 years I put on a further 3 stone."

10 After the hearing before the Tribunal the applicant's counsel lodged written submissions which included the following

"7 Following the principles enunciated in [Repatriation Commission v] Deledio [(1998) 83 FCR 82 at 98] the applicant contends as follows:

(a) The hypothesis is that the applicant increased his calorie intake while serving on HMAS Anzac due to his access to food by virtue of his position as a victualler and being entertained in port whilst in the Far East and his naval diet which was different from his pre-service diet.

(b) The next question is whether there is a Statement of Principles in relation to obesity. The answer is no.

(c) In the absence of an SoP the methodology to be applied is that stated in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 571. `The method of applying s 120(1) and (3) is now established' said the Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 at 366 citing the above passage [in] Byrnes with approval.

In the absence of an SoP the next step after identifying the hypothesis is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support it. The material before the Tribunal which points to the hypothesis is as follows:

(i) The applicant weighted 13st 8lb on enlistment 1954.

(ii) During 1955 and 1956 he served on HMAS Anzac and his increased calorie intake is outlined in his evidence and the last two paragraphs of his proof of evidence [quoted above].

(iii) The statement about causes of being obese at p 42 of the `T' documents include:

`(a) exposure to an environment which encourages calorie intake'

(iv) The applicant's duties as a victualling rating gave him access to any quantity of food especially snack food and he took advantage of the opportunity.

(v) By August 1957 the applicant was being advised to lose weight (see last entry on p2 an extract from daily medical record books).

(vi) By September 1957 the applicant was advised about obesity (entry on 10 September 1957 on p3 of extract).

(vii) At page 96 of the `T' document Dr Peter Janovic records the onset of obesity as 1957.

(viii) At page 96 of the `T' documents Dr Janovic thought that obesity was related to a number of factors on service including a changed dietary pattern (the applicant was already obese before his admission to hospital in November 1957).

8 None of the factors in the preceding paragraph has been disproved beyond reasonable doubt."

The Tribunal's reasons for decision contain no reference to this submission.

11 In its reasons the Tribunal recited the evidence of the applicant's weight gain. It noted that he had been offered counselling by specialist doctors in relation to his weight gain and was put on various diets but nothing seemed to make any difference and he gave up trying to lose weight.

12 The Tribunal said (at [27]):

"As there is no relevant Statement of Principles for the condition of `obesity', the Tribunal must be satisfied that the applicant's claimed condition, `arose out of or was contributable [sic, should be attributable] to' eligible service, s 8(1)(b) [sic, should be s 9(1)(b)]. In other words there must be some causal connection between the claimed incapacity for the disease and the applicant's service."

13 After noting the periods of operational service already referred to, the Tribunal said:

"30. Whilst the Tribunal does not doubt the evidence of the applicant that he availed himself of food that was readily available to him during his service on HMAS Anzac, as well as being routinely entertained in port with good food and wine, the Tribunal must nevertheless find a connection between the applicant's period of operational service and his claimed condition as the Act requires that the claimed condition must arise out of, or be attributable to eligible service. In other words there must be a causal relationship between the condition and service. As stated above, the period of eligible service was some 79 days on HMAS Anzac occurring between 14.12.1955 and 8.10.1956. It is also noted there were two significant gaps between in the service period namely between 22.12.1955 and 18.2.1956, a gap of almost 2 months, and also from 19.3.1956 to 6.7.1956, a gap of over 3 months.

31. The applicant had stated that whilst the Navy supplied him with regular meals, he chose to exceed the food supplied by availing himself of additional food that was readily available to him. The Tribunal does not accept that there was a causal connection between the food supplied to the applicant in the course of his service and his obese condition. It is difficult to accept that the applicant's weight gain arose out of or was attributable to his period of operational service on HMAS Anzac, a total period of 79 days. The other factors relevant to his service are that, when the applicant's condition was realised he was offered assistance and counselling which he chose not to fulfil.

32. As stated by the Full Federal Court in Repatriation Commission v Tuite (1993) 29 ALD 609:

`... if an injury or disease is claimed to have arisen out of or been attributable to a serviceman's camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred ...'.

As the Tribunal found in Tuite's case, the causal connection must be more than merely temporal.

33. In the present case, the Tribunal is unable to find that the applicant's claimed condition of obesity had the required causal connection with the applicant's period of service on HMAS Anzac as outlined above. This is particularly so when account is taken of the significant gaps in that period of operational service."

14 The primary submission by Mr R M Webster of counsel for the applicant, which I accept, was that the Tribunal fell into error because it failed to apply the approach mandated by s 120(1) and (3) of the VE Act. That approach is authoritatively summarised in the joint judgment of Northrop, Sundberg, Marshall and Merkel JJ in Repatriation Commission v Bey (1997) 79 FCR 364 at 366:

"In Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 571 the High Court said of the relationship between subss (1) and (3) of s 129:

`The position may be summarized as follows: (1) First, subs (3) of s 129 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, subs (1) of s 120 is applied.'

The method of applying s 120(1) and (3) is now well established:

1. One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.

2. The second step under subs(3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the `raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.

3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.

4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

In some cases the hypothesis may assume the occurrence or existence of a `fact'. That itself does not make the hypothesis unreasonable: Byrnes at 570 and Critch v Repatriation Commission (1996) 43 ALD 574 at 577."

15 The failure of the Tribunal to make reference to counsel's written submission on a central issue in the case is probably a separate error in itself: see Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1998) 79 ALR 267 at 276, Casarotto v Australian Postal Commission (1989) 83 ALR 399 at 403. Perhaps more importantly, that failure highlights the error of the Tribunal in not following the steps mandated by the VE Act and explained in authorities such as Byrnes and Bey. Reading the Tribunal's reasons, one might think that it was simply a matter for the Tribunal to be satisfied as a matter of fact that the applicant's condition arose out of or was attributable to his operational service. However, the provisions of s 120 require a fundamentally different fact-finding approach.

16 Mr P J Hanks QC, senior counsel for the Commission, submitted that the facts were not in dispute and that it was open to the Tribunal to make the finding it did as to the relevant causal connection. He referred to the passage in Repatriation Commission v Tuite (1993) 39 FCR 540 at 541 cited by the Tribunal. However, Tuite was a case where the veteran had not performed operational service. The Tribunal was only obliged to decide the matter to its "reasonable satisfaction" pursuant to s 120(4): see per Burchett and Einfeld JJ at 544. The reasonable hypothesis regime of s 120(3) and the reverse onus of proof required by s 120(1) were not applicable.

17 Mr Hanks conceded that the Tribunal did not consider whether or not there was a reasonable hypothesis. But, he argued, the Tribunal could simply consider the causal relationship between operational service and disease, like any other question of fact. Because the Tribunal accepted the applicant's evidence, no question of fact-finding arose.

18 However, this argument not only ignores the mandate of s 120(1) and (3); it elides the two-step approach explained in Bey, namely, (i) what is the hypothesis? and (ii) is that hypothesis "reasonable"? Within that second step there are the subsidiary issues as to (A) whether the hypothesis points to "raised facts" which support it and (B) whether the hypothesis, assuming those raised facts to be true, is "reasonable". In the present case, there was, as it happened, no dispute about the facts, even though proof of facts was not in issue at this point: Bey (supra). But that still left the question of whether the hypothesis was "reasonable". A hypothesis for the purposes of s 120(3) is not confined to a catalogue of bare facts. The hypothesis will necessarily include an argument or opinion as to the causal link between assumed facts and the veteran's disease (or injury or death). Sometimes that causal link will be a matter of medical-scientific opinion. Since the 1994 amendments to the VE Act such an opinion will often be the subject of a Statement of Principles, a "statute-backed declaration of what is proved or known scientific fact": Repatriation Commission v Deledio (1998) 83 FCR 82 at 96. In such a case the opinion as to the causal link comes, so to speak, built in. The Repatriation Medical Authority will have already formed a view that the factors stated in the SoP can be related to a particular kind of injury, disease or death as a matter of "sound medical-scientific evidence": VE Act, s 196B.

19 But in the present case the opinion as to the causal link, as expressed in the submission which the Tribunal ignored, was the lay contention that the applicant's particular duties as a victualler in Anzac gave him unlimited access to tempting food, to which temptation he succumbed, which in turn led to obesity. A conclusion that a hypothesis advancing such a causal connection was not reasonable would be surprising. For present purposes, however, it is sufficient to say that the reasonableness of this hypothesis was a question which the Tribunal never addressed.

20 Reference was made to the fragmented nature of the applicant's operational service, but the extent to which that might have affected the causal connection between operational service and the applicant's obesity was a question of fact which fell to be determined at the s 120(1) stage and could not excuse the Tribunal from its failure to deal with the hypothesis advanced. In saying that it was "difficult to accept that the applicant's weight gain arose out of or was attributable to his period of operational service on HMAS Anzac, a total period of 79 days" the Tribunal misconceived its function. It treated the issue as a simple fact-finding exercise, without regard to s 120(1) and (3).

21 The appeal will be allowed. The decision of the Tribunal, to the extent that it found the applicant's condition of obesity was not war-caused, will be set aside and the matter remitted to the Tribunal differently constituted for further hearing and determination. There will be an order that the Commission pay the applicant's costs of the appeal, including reserved costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated: 9 August 2002

Counsel for the Applicant	R M Webster
Solicitor for the Applicant	R M Webster
Counsel for the Respondent:	P J Hanks QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 July 2002
Date of Judgment:	30 July 2002