183. IN THE FEDERAG COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. W.A.G 8 of 1979 ON APPEAL from the REPATRIATION REVIEW TRIBUNAL NANCY LAW Applicant THE REPATRIATION COMMISSION Respondent ORDER JUDGE: The Honourable MR. JUSTICE TOOHEY DATE OF ORDER: 25th March, 1980 WERE MADE: Perth in the State of Western Australia. , THE COURT ORDERS THAT : 1. The appeal be allowed. 2. The decision of the Repatriation Review Tribunal given on 10th September 1979 be set aside. 3. The claim by the Applicant as the widow of JAMES LAW WX 4134 for a pension pursuant to the provisions of Section 101 (1) of the Repatriation Act, 1920 be granted. 4. The Respondent pay the Applicant's costs of the appeal to be taxed. S ' " ' dctesh DISTRICT REGISTRAR * DATE ENTERED: Prh e vk (4 THIS ORDER was extracted by Muir Williams Nicholson & Co. of Law Chambers, Cathedral Square, Perth Telephone: 325.0421 Reference: JN.MPJ.60174 183. Me a me no ee ee te meer ENA Ad ie Oven Te tet Tani a ore ha AE eine An oe IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. W.A. 8 of 1979 ) GENERAL DIVISION ) ON APPEAL from the REPATRIATION REVIEW TRIBUNAL NANCY LAW Applicant "Tree Robelral' on Comayss tent FRS- Respondent CORAM: TOOHEY J. a> March 1980 REASONS FOR JUDGMENT TOOHEY J. James Law died on 15 September 1976. His ' death was due to carcinoma of the lung, with myocardial infarction a contributory cause. The procedures followed for a pension His widow sought a war widow's pension under the provisions of the Repatriation Act 1920. In accordance with the Act the claim was submitted to a Repatriation Board for consideration and determination. On 11 January 1977 the Board refused the claim, its reasons noted in summary form as "Death rejected under Section 101. Not related to service". ok 2. Pursuant to s.28 of the Act, something of a from Caesar to Caesar provision, Mrs. Law appealed to the Repatriation Commission which on 19 April 1977 disallowed the appeal, finding that "the reasoning and conclusions of the Board are consistent with the ch facts of the case Under procedures available before amending legislation in 1979, Mrs. Law sought a review of the Commission's decision from a War Pension Entitlement Appeal Tribunal. Additional material was placed before the Tribunal which then referred Mrs. Law's claim to the Repatriation Commission "for reconsideration". After reconsideration, the Commission adhered to its determination of 19 April 1977. Mrs. Law appealed against that determination and pursuant to s.48 of the Repatriation Acts Amendment Act 1979 (one of several transitional provisions) that appeal came before the newly created Repatriation Reyiew Tribunal as if it were an application for review under s.107VC of the Act. On 10 September 1979 the Tribunal concluded: "After considering all the evidence, the Tribunal is satisfied beyond reasonable doubt, that there were insufficient grounds for granting the claim, and affirms the decision of the Repatriation Commission". Section 107VZZH of the Act authorises an appeal to the Federal Court from a decision of the Tribunal "on a question of law". The distinction between that provision and s.196 of the Income Tax Assessment Act 3. 1936, authorising an appeal to a Supreme Court from "any decision of the Board that involves a question of law", is immediately apparent. Appeal to the Federal Court Following this circuitous route Mrs. Law now appeals to the Federal Court. The unsatisfactory situation of such a chain of review procedures is highlighted by the existence of a right of appeal from this decision to the Full Court of the Federal Court, thence by special leave if not as of right to the High Court In order to decide whether the present appeal is truly on a question of law and if so to assess its merits it is necessary to look at the Tribunal's reasons for decision. First, however, I mention some other sections of the Repatriation Act that bear on the appeal. The Repatriation Act The obligation of the Commonwealth of Australia to pay a pension to the dependants of a member of the Forces is to be found in s.101. It is as well to set out sub-s.(1) with its initial proviso and sub-s. (1A). "101.(1) Upon the incapacity or death - . (a) of any member of the Forces who was employed on active service, whose incapacity or death has resulted from any occurrence that happened during the period from the date of his en- listment to the date of the termination of his service in respect of that enlistment; or 4. "(b) of any member of the Forces whose incapacity or death has arisen out of or is attributable to his war service. the Commonwealth shall, subject to this Act, be liable to pay to the member, or his dependants, or both, as the case may be, pensions in accordance with Division I: Provided that - (a) the incapacity or death of the member - (i) is not due to the serious default or wilful act of the member; (ii) does not arise from intentionally self-inflicted injuries; and (iii) does not arise from, or from any occurrence that happened during the commission of, any serious breach of discipline by the member, "(1A) For the purposes of paragraph (b) of sub-section (1) but without affecting the generality thereof, the incapacity or death of a member shall be deemed to have arisen out of his war service if it was the result of an accident that happened to him while travelling directly to or from his place of employment on war service or was, in the opinion of the Commission, due to an accident that occurred or to a disease or an infection that was contracted, and that would not have occurred or been contracted but for his being on war service or but for changes in his environment consequent upon his being on war service." Section 47 governs the determination of applications and appeals by the Commission or a Board. After providing in sub-s.(1) that these bodies are not bound by technicalities, legal forms or rules of evidence and that they shall take into account any difficulties arising from the passage of time, the section concludes: 5. "(2) The Commission or a Board shall grant a claim or application, and the Commission shall allow an appeal, unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal, as the case may be". In all relevant respects sub-s.(2) as it now stands was introduced by the Repatriation Acts Amendment Act 1977, assented to 16 June 1977. It was in operation when the application came before the Commission for reconsideration in 1978. Section 107VG obliges the Repatriation Review Tribunal to act in terms similar to those in s.47(1). In another change of the usual onus, s.107VH concludes: "(@) On the completion of its consideration in a proceeding on a review - (a) where the decision the subject of the review was_a decision refusing a claim or application for pension - the Tribunal shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application," In its selection of the expression "beyond reasonable doubt", the legislature must be taken to have borrowed the language of the criminal law with the meaning that has been attached to that expression in that field. Sections 107VG and 107VH, introduced by the Repatriation Acts Amendment Act 1979, operated from i-July 1979 and so governed the decision of the Repatriation Review Tribunal in the present case. 6. Reasons for decision of Tribunal It is now appropriate to return to the reasons for decision of the Tribunal. So far as relevant to this appeal, they can be summarised thus: 1. Mr. Law served in the army in Australia and overseas during World War II. He was a prisoner of the Japanese. He was discharged from service in 1976. He died at the age of 67 from carcinoma of the lung caused by smoking, with myocardial infarction a contributory cause. He did not smoke before he joined the army. There was no evidence as to exactly when he did start to smoke but by the time of his repatriation to Australia he was smoking heavily. Until a heart attack in 1973 he smoked 20 cigarettes a day. Thereafter he reduced his smoking. The evidence did not establish that Mr. Law first smoked while a prisoner of the Japanese or that he began smoking because of conditions relating to his war service or imprisonment. He was neither addicted to smoking nor psychologically incapable of reducing his smoking in the post war period. Questions of law The notice of appeal sets out first the questions of law to be raised on the appeal and then the grounds upon which the applicant relies. The questions of law are said to be whether the Tribunal misdirected itself in basing its decision in part on the findings that - (i) there was no evidence to indicate that Mr. Law started to smoke because of the conditions and demands of his particular war service or because of the conditions in general pertaining to prisoners of war, and (ii) Mr. Law was not psychologically incapable of reducing his smoking in the post war period. A further question is said to be whether as a matter of law, on the facts properly found and on the evidence before it, the Tribunal could have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim. Counsel for the respondent accepted that the question whether the Tribunal misdirected itself in basing its decision in part on the finding mentioned in item (i) was a question of law and also that the question whether the Tribunal misdirected itself in basing its 8. decision in part on the finding in item (ii) involved a question of law. As to the third matter, counsel conceded that the question whether, on the facts properly found, the Tribunal could have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim was a question of law. Counsel did not concede that a consideration of the evidence as distinct from an examination of the facts properly found was a question of law. As to the specific findings just mentioned, counsel for the respondent may not have intended to draw a distinction between one being a question of law and the other involving a question of law. In any event, the attack" made upon each finding, insofar as it is based upon the allegation of a misdirection, is an appeal on a question of law.. Each concerns the interpretation and construction of s.101. A challenge on the ground that the Tribunal could not as distinct from should not have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim is, I think, an appeal on a question of law both as to facts properly found and as to the evidence, at least in so far as the latter amounts tq a submission that there was no evidence upon which the Tribunal could have reached that conclusion. See Lombardo v. Federal Commissioner of Taxation (1979) 79 A.T.C. 4542 at pp.4545, 4547_and 4549. 9. In essence the grounds of appeal pick up the challenged findings and then assert that the Tribunal should have found that it could not be satisfied beyond reasonable doubt that Mr. Law's death did not result from an occurrence that happened during war service or did not arise out of or was not attributable to his war service or that there were insufficient grounds for granting the claim or application. This in turn is a reference to the special onus appearing in s.107VH. Section 101 Section 101 specifies two situations in which the death of a member of the forces will create a liability in the Commonwealth to pay a pension to his dependants. It is a similar though not identical dichotomy to that found in workmens compensation legislation. Broadly speaking, para.(a) of s.101(1) requires a temporal connection, para.(b) a causal one. As to the former, the necessary ingredients are (i) the death of a member of the Forces (ii) who was employed on active service (iii) whose death resulted from an occurrence (iv) that happened during the period of his enlistment. As to the latter, the essentials are: (i) the death of a member of the Forces (ii) arising out of or attributable to war service. 1a. Mr. Law was a member of the Forces on active service so that without doubt he met the first two requirements of para.(a) and the first of para. (b). The real questions are. did his death result from an occurrence during enlistment? or, did it arise out of or was it attributable to war service? The temporal connection The contrast with the language of workmens compensation legislation lies in the use of the term "occurrence" rather than "accident". The former I apprehend to be of wider import than the latter. It means an event or incident, something that happens or takes place. It does not require the quality of unexpected- ness, of chance or misfortune that tends to accompany the term accident. ) There is no reason, either as a matter of language or in terms of the Acts Interpretation Act 1901 s.23, why occurrence should not extend to several events or incidents, But for para.(a) to operate there must have been something capable of description as an occurrence and it must have happened during war service, that is during the period of enlistment. . At issue here is the existence and identification of that occurrence and its connection with the death of the member. It was only before the Federal Court that 11. this aspect arose squarely for decision. Before the Commission and the Tribunal attention focused on the causal connection, if any, between Mr. Law's war service and his death. It was accepted that Mr. Law died from carcinoma of the lung caused by cigarette smoking. That smoking began during war service and continued thereafter. In the applicant's submission, it was the formation of the habit of smoking that was the occurrence during enlistment and it was that occurrence from which death resulted. The applicant must, I think, put her case that way for Mr. Law's smoking continued for some 30 years after discharge. On the evidence it was open neither to the Commission nor the Tribunal to have found that the carcinoma of the lung from which he died was the result of his smoking during the period of war service. That is so whether, as the death certificate indicates, there was an approximate interval of 9 months between onset of carcinoma and death or whether, as some of the evidence suggested, the causes of cancer are subtle and long acting. In terms of ss.47(2) and 107VH, the Commission and the Tribunal was each bound to be satisfied that there were insufficient grounds for granting the claim on that basis. : I should make one thing clear. Paragraph (a) of s.101(1) requires an occurrence during the period of enlistment. The inability to pinpoint with any precision the date of an occurrence would not be fatal 12. if it was evident that it took place during the relevant period. The question here is whether one can fairly describe the formation of a smoking habit as an occurrence at all. The notion of occurrence in s.101 embraces events that have taken place by reason of the conduct of the member concerned. That is apparent because of the provisos in s,101(1) that exclude death due to : serious default or wilful act of the member, death arising from intentionally self-inflicted injuries and death arising from any occurrence that happened during the commission of any serious breach of discipline by the member. It is implicit that conduct of a member not falling within any of these descriptions is capable of constituting an occurrence. But the t question posed in the last paragraph still remains. In my opinion, however broadly the notion of occurrence is viewed, the formation of a smoking habit lacks the sense of an event or incident or for that matter a series of events or incidents. Rather it connotes a settled tendency or practice, the result of occurrences, reflecting the state of mind or way of acting of the person concerned. . If that is right, it is unnecessary to consider the extent of connection between formation of the smoking habit and death of the member. Paragraph (a) requires that one results from the other. In this respect there is no need to find any causal relationship between death and war service as required by para. (b). 13, Given an occurrence during the period of enlistment, the only remaining connection demanded by the Act is that death resulted from that occurrence. In my view it is not appropriate to descrihe Mr. Law's death as resulting from the formation of a smoking habit. Notwithstanding Rothwell v. Caverswall Stone Co. Ltd. (1944) 2 All E.R. 350 and Hogan v. Bentinck West Hartley Collieries (Owners) Ltd. (1949) 1 All E.R. 588, decisions cited by counsel for the applicant to emphasise the need to examine the chain of causation, the fact is that death resulted from the smoking itself not from the habit. The appeal based upon para.(a) of s.101(1) must fail. The causal connection ' Paragraph (b) of s.101(1) creates a liability in the Commonwealth to pay a pension where the death of a member has arisen out of or is attributable to his war service. Thus the notion of some causal relationship between death and war service is introduced. But the extent of the relationship is not as direct as the expression "caused by" might require. In Government Insurance Office of N.S.W. v. R.J. Green and Lloyd Pty, Ltd. (1965-1966) 114 C.L.R. 437 the Court was concerned with the contents of a motor vehicle insurance policy in which the words "caused by or arising out of the use of the motor vehicle" appeared, 14. at p.443 Barwick C.J. commented: "Bearing in mind the general purpose of the Act I think the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is (rt required to satisfy the words "caused by'". At p.445 Menzies J. stated- "The words "arising out of the use" have no doubt a widtr connotation than the words "caused by ... the use". To my mind, however, they do import a relationship between the use of the vehicle and the injury which has some causal element in it". As to the expression "attributable to", Donaldson J., in Walsh v. Rother District Council (1978) 1 All E.R. 510, concluded at p.514: " .. these are plain English words involving some causal connection between ; the loss of employment and that to which the loss is said to be attributable. However, this connection need not be \ that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient". In my view, para.(b) of s.101(1) requires no more than that the death of a member of the Forces have some causal connection with his war service. In the present case this means some causal connection between the condition: of carcinoma of the lung and the member's war service. Counsel for the applicant placed some stress upon s.101(1A), in particular that part deeming the death of a member to have arisen out of war service 15. "if it was ... due to ... a disease ..- that was contracted, and that would not have ... been contracted but for his being on war service or but for changes in his environment consequent upon his being on war service", The deeming provision seems to have the effect of removing the distinction emphasised by Denning J. in Marshall v. Minister of Pensions (1948) 1K.B. 106 between a cause and something merely part of the circumstances in or on which the cause operates. The applicant's submission was that Mr. Law would not have contracted the disease of carcinoma but for war service or changed environment in the sense that he would not have taken up smoking, formed the habit of smoking the applicant would say, except for war service. The fate of this submission is bound up with the onus provisions of the Act, to which I shall refer later, Having found that Mr. Law died from a carcinoma of the lung caused by his smoking habits, that he did not smoke before he joined the army but that by the time of his repatriation from prisoner of war camp he had begun to smoke, the Tribunal went on to say that there was no evidence to indicate that he started to smoke ~ "because of the conditions and demands of his particular war service or because of the conditions in general pertaining to prisoners of war". . rt 16. The Tribunal added a further finding that Mr. Law "was not psychologically incapable of reducing his smoking in the post war period". In my view that finding was irrelevant even if warranted by the evidence, about which I say nothing. If there was a sufficient connection between Mr. Law's death and his war service so that the former arose out of or was attributable to the latter, the requirements of para.(b) were met. Subsequent eyents could not destroy that connection. The respondent submitted that the applicant's case could fall within para.(b) only if - "there was an addiction to cigarette smoking brought about by the conditions of war service which led ultimately and irreversibly to the lung cancer from which death resulted ,.." This places too narrow a construction upon para.(b) of s.101(1)' and upon s.101(1A), Evidence of addiction may be useful, whether in relation to cigarettes or drugs, as pointing to some continuity of the process leading to death. But, except in the cases mentioned in the proviso to s,101, the conduct of the member himself is not on trial; it is enough to demonstrate a causal connection between death and war service. Before the Tribunal an attempt was made to do this, particularly through the written evidence of Sir Edward Dunlop, a medical practitioner with qualifications both relevant and impressive and by chance a prisoner of the Japanese at the same time and in the same camps as Mr. Law, The doctor stressed the privations to which prisoners of war were subject, the 17. relief gained by smoking and the availability of cigarettes to prisoners of war on their release. He spoke too of the several diseases contracted by Mr. Law during his imprisonment and the marked deterioration in his health as a result. Such a general deterioration lessens the efficacy of immune surveillance, a natural process by which the abnormal cells which form the stem cells of malignancy can be removed from the body. In Sir Edward Dunlop's opinion - "the causes of cancer are subtle and long acting and ... the cancer itself may be . for a long time a focus which is not apparent on clinical examination or X Ray". He was not in a position to say why Mr. Law in particular took up smoking nor was there any direct evidence on the point. This is hardly surprising after a lapse of more than 30 years. Sir Edward concluded: "There are ample grounds to think that his death could well have been either due to or accelerated by War Service". While entitlement to a pension is in the end a matter for the Commission or the Tribunal (subject to cights of appeal), s.48 of the Act obliges a medical practitioner who reports on a claim to express an opinion on a wide range of matters including the very questions that s.101(1) gives rise to. There were available to the Commission on its reconsideration and to the Tribunal on appeal reports from Dr, Perkins and Dr. Stockler, each a Senior Medical 18. Officer (Appeals) appointed under the Act. Dr. Perkins stressed the absence of any addictive pattern in Mr. Law's smoking history, considered that his smoking habit was one of personal choice and concluded, as a matter of inference from the foregoing as I read the report, that the smoking was not caused by war service. The report does not advance the matter one way or the other. No choice is made in a vacuum; to say that Mr. Law chose to smoke does not exclude the possible influence of conditions associated with war service. Dr. Stockler also emphasised the aspect of personal choice, adding that there are factors other than smoking to be considered in the development of carcinomas. For the reasons just given the first consideration does not take the matter any further; the second is now foreclosed by the accepted finding of the Tribunal that Mr. Law died from a carcinoma of the lung caused by his smoking habits. In this elusive state of the evidence I turn to the onus provisions of the Act. Beyond reasonable doubt There can be no doubt that the reference in s.47(2) and s,107VH(2) to "beyond reasonable doubt" is a reference to the standard of proof in criminal {~ 19. proceedings. An attempt to water down the standard in comparable English legislation was firmly rejected in Judd v. Minister of Pensions and National Insurance (1966) 2 Q.B. 580. In that decision Edmund Davies J., referring to the standard of proof in criminal trials, commented "What that standard involves has been expounded with, if I may say so, classical clarity by Denning, J., in Miller's case and need not here be reiterated" (at p 592). In Miller v. Minister of Pensions (1947) 2 ALL E.R. 372 at p.373 Denning J. said: "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course it is possible, but not in the least probable," the case is proved beyond reasonable doubt, but nothing short of that will suffice". The High Court has consistently taken the view that, in the context of criminal trials, attempts to explain the time-honoured formula are likely to confuse juries. See Green v. The Queen (1971) 126 C.L.R. 28 and the cases there referred to. Hence the absence in the Austraiian authorities of any statement comparable to that in Miller's case. But what Green's case does emphasise is that "possibilities which are in truth fantastic or completely unreal" cannot be the source of reasonable doubt. 20. In the Repatriation Act, both Commission and Tribunal are enjoined to grant an application for pension unless satisfied beyond reasonable doubt that there are insufficient grounds for doing so. That requires that a pension claim be acceded to unless the Commission or Tribunal is satisfied,beyond reasonable doubt, a doubt which must not spring from possibilities that are fantastic or completely unreal, that there are insufficient grounds for doing so. It is a "heavy burden of disproof" requiring evidence that is 'very clear and cogent before a pension can be refused" (Coe v. Minister of Pensions and National Insurance (1967) 1 Q.B. 238 per Edmund Davies J. at p.242) The appeal upheld In the present case the Tribunal found that Mr. Law died from a carcinoma of the lung caused by his smoking habits, that he did not smoke before he joined the Army but that by the time of his repatriation from prisoner of war camp be had begun to smoke. Ordinarily, to infer from this temporal connection a causal one would, in the language of Fowler's Modern English Usage, involve the fallacy of confusing consequence with sequence - post hoc ergo propter hoc. But this is not an ordinary situation; a pension must be granted unless the Tribunal is satisfied beyond reasonable doubt that there are insufficient grounds for granting it. 21. The Tribunal's next finding, that there was no evidence to indicate that Mr. Law started to smoke because of the conditions and demands of his particular war service or because of the conditions in general pertaining to prisoners of war, placed the onus where it does not lie. A comment by Edmund Davies J. in Coe's case is apt: " .. Evidence of that nature does not establish that service factors played no part, but merely declines to accept the positive assertion that service factors played a part in causing the disease. Im such circumstances there would have to be an award on the basis of attributability" (at p.242). The Tribunal's final finding that Mr. Law was not psychologically incapable of reducing his smoking in the post war period was, for the reasons given, not relevant. In my opinion, in the light of its findings regarding the cause of death and the commencement of smoking, the Tribunal should have concluded that it could not be satisfied beyond reasonable doubt that Mr. Law's death did not arise out of or was not attributable to his war service; hence it should not have been satisfied that there were insufficient grounds for granting the claim, I stress that this is the result of the onus provisions of the Act to which full effect must be given. This makes it unnecessary to determine the challenge to the Tribunal''s decision based upon the 22, evidence as distinct from the findings. It is enough to say that when regard is had to the fact that Mr. Law died from carcinoma of the lung caused by smoking (and smoking over a number of years, according to Sir Edward Dunlop), that he took up smoking during war service and that he was a prisoner of war in poor conditions suffering from a number of maladies, a situation generally conducive to smoking, there was no clear and cogent evidence to justify a conclusion that there was no causal connection between war service and death. Section 107VZZH(4) and (5) of the Repatriation Act empowers the Federal Court to hear and determine this appeal and to make such order as it thinks appropriate, including a power to remit to the Tribunal. To remit would further prolong this already protracted matter and is unnecessary. There is sufficient material to enable me to conclude that Mrs. Law should receive a pension. That material will enable another Court to dispose of the matter if it goes further. The appeal is allowed and the decision of the Tribunal set aside. I shall hear counsel as to the precise form of the orders that should be made. I certify that this and the 2} Reasons for Judgment herein of bis Honour Mr. Justice Torker Assocaatg faente Dated: 2S - 3-80 prececing pases u.e a tzue copy of the | \