CATCHWORES Repatriation - war widow's pension - aeath of former nemper of Armed Forces from carcinoma and chronic opstructive alrways disease - aetiology of disease unknown - whether death attributable to war service - onus of proof - degree of proof required to establish entitlement to pension where cause of disease unknown Repatriation Act 1320, ss.107VC(1), l1O7VH(2), LO7VK(3), LO7V2ZZH( 1), 107V22ZK(2) REPATRIATION COMMISSION v. PEARL WALKER No. G 238 of 1983 Morling J. 4 April 1984, Sydney nl Ti ee en te ae ~_ IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 238 cf 1983 GENERAL DIVISION JUDGE MAKING ORDER DATE OF ORDER WHERE MADE BETWEEN : REPATRIATION COMMISSION Applicant AND: PEARL WALKER Respondent ORDER : Morling J. 4 April 1984 : Sydney THE COURT ORDERS THAT: The appeal be allowed. The decision of the Repatriation Review Tribunal given 5 July 1983 be set aside. The respondent's claim be remitted to the Tribunal for determination in accordance with these reasons. The Commonwealth pay the respondent's costs of the appeal in accordance with the provisions of s.107VZZK(2). ee repr 2 were eee IN THE FEDERAL COUPT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 238 or 1983 wee GENERAL DIVISION BETWEEN : REPATRIATION COMMISSION Applicant AND: PEARL WALKER Respondent MORLING J. 4 April 1984 REASONS FOR JUDGMENT This 1S an appeal pursuant to s.107VZ2H(1) of the Repatriation Act 1920, as amended, ("the Act") from a decision of the Repatriation Review Tribunal ("the Tribunal"). Such an appeal may be brought only on a question of law. On 5 July 1983 the Tribunal made a decision that pursuant to s.101 of the Act the Commonwealth was liable to pay to Mrs Pearl Walker, the widow of Francis William Walker, a pension in accordance with Division I of Part III of the Act. The late Mr Walker served in the Australian Army during the period from 1 October 1941 to 21 November 1945. He died on 17 March 1980 from metastatic carcinoma and chronic obstructive airways disease. emt en a em a a = 7 — -« . oe ee ee et ba . Following her husband's death Mrs Walker lodged a claim for a pension. A Repatriation Board refused the clain. Mrs Walker thereupon exercised her right of appeal to the Repatriation Commission which disaliowed the appeal. Mrs Walker then exercised the right given to her by sub-s.107VC(1) of the Act to apply to the Tribunal fora review of the decision of the Repatriation Commission. The Tribunal set aside the Repatriation Commission's decision holding that it was not satisfied beyond reasonable doubt that there were insufficient grounds for granting Mrs Walker's claim for a pension. The appellant contended before this court that an examination of the Tribunal's reasons revealed that it made errors of law in arriving at its decision. In substance, the contention was that the Tribunal misdirected itself as to the effect of the decision of the High Court in Repatriation Commission v Law (1981) 147 C.L.R. 635. The principal submission was that the Tribunal erred in accepting a submission made to it on behalf of the respondent that in every case where a serviceman dies of a disease, the cause of which is unknown, his dependants are entitled to a pension because it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. eee ee Neen nee ee ee ne sem 0 wee nll ee tr - = we ee Counsel for the respondent conceded that sucha submission was mace to the Tribunal by tne respondent's then counsel. He further conceded that the submission was erroneous. But he argued that it could not be demonstrated feom the Tribunal's reasons that it had accepted the submission. The relevant evidence and material before the Tribunal was within a small compass. Nothing turns upon the details of the late Mr Walker's military service. In 1979 he was diagnosed as suffering from cancer of the pancreas. The only medical reports before the Tribunal dealing with the causes of Mr Walker's death were furnished by Dr Reddel and Dr Stockley. In his report Dr Reddel stated that the exact site of the primary tumour had not been found, but that ats terminal manifestation was in the lungs. He thought that the most likely cause of death was carcinoma of the pancreas and that its exact cause remained obscure. He said that Mr Walker was in an age group where this condition commonly occurs and noted that he had a history of having smoked one packet of cigarettes a day for 45 years. However, as will be seen from the Tribunal's reasons to which I shall presently refer, Mr Walker's smoking habit appears to have played no part in the Tribunali's reasons. Dr Reddel expressed the opinion that the incapacity from which Mr Walker died did not result from an occurrence that occurred during his war service. He observed that the cancer had appeared more than 30 years after Mr Walker's discharge from the services and stated, inter alia, tnat the basic cause cf carcinoma of the pancreas was unknown. In her report Dr Stockley excluded any contention that the primary cause of death was carcinoma of the lungs. She agreed that the primary site of the tumour had not been ascertained but thought that the pancreas could not be substantiated as the primary site of the malignancy. She thought there was nothing to support acclaim that Mr Walker's habit of smoking was acquired and fostered during his war service. I turn now to consider the appellant's primary submission, namely, that the Tribunal accepted the submission put to it that 1n every case where a serviceman dies of a disease, the cause of which is unknown, his dependants are entitled to a pension because it is not possible to demonstrate that the cause of the disease from which he died was not a war service cause. There is no doubt that it would have been an error of law for the Tribunal to have accepted such a submission. See Lennell v Repatriation Commission (3 February 1982 per Northrop and Sheppard JJ. at pp.14-15); Repatriation Commission v Bugg (27 July 1983 per Sheppard J.); Repatriation Commission v Bishop 48 A.L.R. 461 per Toohey J. at pp.468-9), and Repatriation Commission v Compton (20 February 1984 per Toohey J. at pp.7-8). Although the Tribunal did not, in as many words, accept the submission put to it on behalf of the respondent I think it 18 reasonably ciear from a perusal of 1ts reasons that it dad accept it. After referring to the submission and to the decision of the High Court in Law's Case (supra) the Tribunal said: "The High Court held that the onus of disproof placed on the Commission was absolute; no onus resting on the claimant to establish a case initially and also that the operation of $.107VH(2) requires the Tribunal to he satisfied beyond reasonable doubt that each of the factual requirements necessary to establish entitlement has not been established." The Tribunal then stated that the cause of cancer was unknown and that there was a long latency period common to its development. It said the characteristics of cancer in general were established by expert medical evidence adduced in applications before the Administrative Appeals Tribunal in other cases to which it referred. It then said: "Applying these aspects to the case before it the Tribunal finds that the basic cause of cancer is unknown, and that the evidence in this instance does not show that smoking 1s implicated as a factor in the development of metastases in the lung. " Having noted that the primary site of Mr Walker's cancer remained unknown the Tribunal said that 1t had not pursued the matter of smoking "in view of the unknown aetiology aspect of the cancer". The Tribunal then said: "The Tribunal finds that there is no medical opinion or argument to satisfy 1t beyond reasonable doubt that the member's war service has been exciuded as having any causal relation- ship to the cancer of the lung. The Repatri- ation Act requires that such should be demonstrated to the Tribunal beyond reasonabie doubt and in the absence of such satisfaction the Repatriation Act further requires the Tribunal to set aside the Tribunal's decision and to substitute its own." Counsel for the appellant submitted that 1t appeared with reasonable clarity from the Tribunal's reasons that the Tribunal had, indeed, accepted and acted upon the submission made to it by the respondent's counsel. He contended that the Tribunal had made no attempt to ascertain whether there was any material before 1t pointing to a possibility, real as opposed to fanciful, of a connection between Mr Walker's death and his war service. Counsel for the respondent conceded in argument that the possibility of such a connection was necessary: see per Toohey J. in Bishop's Case (supra) at »p.468. In my opinion the appellant's argument is sound. I can find nothing in the Tribunal's reasons, other than the implicit acceptance of the respondents argument that al explains its decision. It 1s true, as counsel for the respondent in this court pointed out, that the Tribunal said that there was no "medical opinion or argument" to satisfy it beyond reasonable doubt that war service had been ee, ene ee - - ete 8 ~ excluded as having a causal relationship with the cancer aH whicn caused Mr Waiker's death. He arguec that thi passage from the Tribunal's reasons showed tnat 1t, in effect, (a) rejected the submission put to it cn behaif of the respondent, (b) accepted that notwithstanding that the cause of the cancer was unknown it was open to it to be satisfied beyond reasonable doubt that Mr Walker's death was not attributable to war service and (c) found that on the whole of the material it was not prepared to exclude that there was a real possibility that the death was related to war service. If the Tribunal had taken this approach it would have been difficult, if not impossible, to criticise its decision as being erroneous in point of law. But I do not think it took this approach. If it had I would have expected it to have expressed its dissent from the respondent's argument and also to have given some reason for not accepting the only medical evidence before it. In this respect it is to be noted that sub-s. 107VK(3) of the Act provides that a written statement of the reasons for a decision of the Tribunal shall include any findings on material questions of fact and shall refer to the evidence or other material on which those findings are based. Counsel for the respondent argued that the statement in the Tribunal's reasons that the characteristics 8. of cancer in qeneral were established by expert medical evidence adduced in applications before the Administrative Appeals Tribunal is a shorthand expression of its findings for the purposes of sub-s. 107VK(3). I. do not think this 1s the case, since immediately following this passage in its reasons the Tribunal said that in "the case before 1t the Tribunal finds that the basic cause of cancer is unknown eee e As I read this statement the Tribunal is saying no more than that a consideration of the medical evidence given in a number of other cases led it to the conciusion that the cause of cancer is unknown. If anything, this statement reinforces my opinion that the Tribunal did accept the correctness of the argument put to it on behalf of the respondent. I am therefore of the opinion that this matter must be remitted to the Tribunal for reconsideration. It is apparent from the number of appeals to this court in cases involving the application of sub-s. 107VH(2) of the Act that considerable difficulty is being experienced by the Repatri- ation Commission and the Tribunal in applying the legislation to pension claims they are required to determine I readily understand this difficulty because it cannot be easy to apply the terms of the sub-section to many factual situations. In my opinion what was said by Toohey J. in Repatriation Commission v Compton (supra) at pp. 7-8 of his unreported decision affords valuable guidance when deciding : cases where the Tribunal is required to set aside a decision unless it is satisfied beyond reasonable doubt chat there are insufficient grounds for granting the application. fis Honour there said: "What I sought to do in Bishop's case was to examine certain decisions of this Court and of the High Court with a view to explaining that in the material before the particular tribunal there must be something pointing to a possib- ility, real as opposed to fanciful, of a connection between death and war service. If there is not, the tribunal is likely to conclude that it is satisfied beyond reasonable doubt that there was no relationship between the war service and the death. Where there is evidence to support a connection between death and war service, the onus cast by the Act upon the Commission would ordinarily lead to a conclusion that the onus had not been satisfied 'unless the evidence pointing to a connection between death and war service could be dismissed as merely fanciful" (at p.467). "Where the aetiology of a disease is unknown the same principle 1s in operation but its application may be somewhat different. Where the cause of the disease from which an ex-serviceman died 1s unknown, it does not follow as a matter of law that the tribunal cannot be satisfied beyond reasonable doubt that the disease was not attributable to war service. In many cases that, no doubt, will be the conclusion reached. But ina particular case the tribunal may decide that the evidence is against the disease having its origin as early as the war years or against it having an origin having anything to do with war service or any circumstances connected therewith. A conclusion by a tribunal that it is satisfied beyond reasonable doubt that the disease was not attributable to war service may, in the partic- ular circumstances, be a proper conclusion, See Lenneli v Repatriation Commission (1982) 4 ALN No. 29." memenrrrwnnpeenne en ee ne een nee tere a ee 10. I. respectfully agree with his Honour's observ- ations. They are apposite to the facts of the present case. Given that the Tribunal reached the conclusion that the evidence did not show that smoking was implicated as a factor in the development of Mr Walker's cancer, it would be well open for it to find that it was satisfied beyond reasonable doubt that Mr Walker's death was not attributable to war service. For the reasons I have given the appeal should be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal to be heard and determined according to law. As required by sub-s. 107VZZK(2) of the Act the respondent's costs of the appeal must be paid by the Commonwealth. nd the NINE C7) tru: copy of the herein of his Honour | Mr. Justice Musi.ing Cur E. [Kavplst Associate ted: 4 APRIL-g 198 |