CATCHWORDS Repatriation - war widows pension - death of former member or Armed: Forces as the result of ai stroke precipitated by hypertension - cause of hypertension unknown - consideration of onus and standard of proof provisions of Repatriation Act m aAS ser ia°9 - analysis of facts of case and of Tribunal's decr Revatriation Act 1920, ss. 47. 1O7VH, iG7VK and i07V2 REPATRIATION COMMISSION v. OLGA PAULINE DUNLOP No. G43 of 1983 Coram: Shepvard J. Date : 22 June 1984 Svdney al- boas IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT PEGISTRY No, G43 of 1983 GENERAL DIVISTON On Appeal from the Repnatriation Avveal Tribunal LITE EY REPATRIATION COMMISSTON Applicant QLGA PAULINE DUNLOP Resrondent ORDER JUDGE MAKING ORDER ve Sheppard J. DATE OF ORDER : 22 June 1994 WHERE MADE : Sydney THE COURT ORDERS TUAT: il. The aoveal be allowed 2. The decision of the Repatriation Pevyiew Tribunal of & February 1983 be set aside and the mactver be remitted to the Tribunal to be neard and decided again. - sete ' wus, -- =T - ae ~ font tie oe aes ue . > ~ eT nn NS IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G43 of 1983 ) GENERAL DIVISION ) on Aopeal trom ths Repatriation Avresal Tribunal BEDTWEEN REPATRIATION COMMISSTON Applicant OLGA PAULINE DUNLOP Respondent SHEPPARD J. 22 June 1984 REASONS FOR JUDGMENT Yet again the Court 158 concerned with the onus and standard of orocf wrovisions in the Pepatriation Act 192 iD ("the Act"). The Commission has apvealed against a decision of the Repatriation Review Tribunal given on 8 February 1983 whereby tne Tribunal set aside the decision of tha Commission made on i6 January 1980. Tne Tribunal found that the tanple to sav <to the dependanz=s of one Be yt a Commission was a fs) '< Pe) pu fs} ih) o Davey Uunloo deceased. tne pensions vayabie in ac iD oO with Diviston 1 of Parc ITI of the Acct. The 2 1 oO wu qmarsted on and fren 3 Juivy 1979. | veal poh -- 2. The case is one where it is said that the cause of thr hypertension which eventually precipitated the death of the deceased is unknown. It is the fact that the cause of death is unknown that gives rise to the central problem in the case. The principal matters which the Commission and the s Tribunal had before them consisted cf che service ceccra sf ju the deceased during World War II, a number of medical reports and histories and certain medical cpinions. The service record shows that the deceased enlisted in the Army on 26 June 1942. On 19 October 1942 he was sent to the Northern Territory where he arrived on 1 November 1942. On 8 June 1943 he was transferred to the Australian Imperial Force. He spent most of the war at various places in the Northern Territory. He was discharged in Sydney on 3 December 19¢5 as the result of the end of the war. His record shows that he had a number of illnesses during his service years but none of these is particularly relevant to the present case. In 1971 he made application for a pension because of problems with his sight and hearing. Aqain, these matters are not relevant to this case. In 1972 he was found to be suffering from diabetes. In 1975 and 1976 he was suffering certain dicestive complaints but tests did not reveal any serious abnormality. In a medical report dated 27 February 1975 it was noted that he was suffering from ischaemic heart '§ disease. At the end of 1975 ne was involved in a rotor acerde st and there was an investigation eventuallz '9 see i whether he had suffered any cerebral damage. A lumbar puncture was performed in 1977. No abnormality was revealed. In September 1977 he was found to have an enlarged heart, ischaemic heart disease with atreal fibrillation and heart failure. He was admitted to hospital where he remained from 6 December to 13 December 1977. His symotoms improved stqanificantly during the week he was in hospital and "he was discharged well." He died on 1 May 1978 at the Mona Vale District Hospital to which he had been admitted the day before as the result of a stroke. Dr. Glerum, who certified the causes of his death said that they were, "I Cerebral haemorrhage, II Hypertension, cardiomyopathy." The claim made by the widow of the deceased, the present respondent, on 6 November 1978, said, amongst other things, "My husband died in Mona Vale Hospital this year on May lst. My claim 1s that war must have very bad effects on a verson's health & that any man who gives his life for his country is entitled to some consideration & im my case his wife be aiven a war widow's pension to ease hardship." On 13 November 1978 Dr. Warner reported on the cause of the death of the deceased. He noted tne causes of death (which probably came from the death certificate) as "I Cerebral haemorrhage, one day, II Hypertension, years, cardiomyopathy, years." Dr. Warner added, "The leading cause of death in this case is hypertension which led to the fatal cerebral haemorrhade. Ciztnical notes inthe 'f1le reveal that the veteran also suffered from Ischaemic Heart Disease wnich would de causally related ta hypertension. fat veing Race Cardiomyopathy was a coexisting disease which did not cause the death in this case. For aetiology of hypertension see insert underleaf." Appended to Dr. Warner's report was a document headed, "Essential Hypertension." The document distinguishes between primary and secondary hypertension, primary hypertension rtension. The o otherwise known as essertial hyp document then deals with the aetiology of essential hypertension. It says that the precise aetiology of the condition 1s not known but that it is considered to have a multifactorial cause anda number of facts are known about Eight causes are listed and dealt with. These are, in the terms used in the document, "Genetic or Hereditary, Age, and Socio-Economic Factors, Hypertension is Common in Australia, Body Build, Sex, Salt Intake and Emotional Stress." Under the latter heading the following appears:- "Although emotional stress has often been suagested as a cause of essential hypertension, the scientific evidence does NOT support this. Emotional stresses can certainly cause tetporary elevation of blood pressure, but there is no convincing evidence that they oroduce the disease essential hypertension. In one study commanding great respect William Evans found NO increased incidence of essential hypertension in a long tern study of recruits with labile blood oressure. (Wm. Evans - 'Diseases of the Heart and Arteries'). Dr. Warner later said:- "In our oresent state of knowledge it can de sazd that the main factors recoanised bv medical authorit225 as being of vorime importarce in the develoomernt of essential hytertensicn are =e ' weed ot ema oo (a) an inherited tendency to develon the disease (b) ageing which, in due course, allows the inherited factors to operate successfully. Emotional stress or disturbance is NOT considered to be of significance. In this case the main causes of the essential hvyvertension ara: 1) Genetically oredetermined factors. There is a pesitive family history of cardiovascular disease in this case - father + of heart disease. 2) Age. The incidence of raised blood pressure readings increases with age. 3) Environmental factors such as affect people living in a Western highly urbanised community, such as our own. Hypertension 1s very common in Australia, U.S.A., and other Western societies but is much less common in the developing world. However, it has been noted to be on the increase in places where urbanisation occurred. 4) Possibly another factor is excessive salt intake. Some authorities believe it to be a contributing factor. Hypertension in this case contributed partly to Ischaemic Heart Disease and vertebro basilar insufficiency (See clinical notes). There are no factors on service known to influence the onset of hypertension." The emphasis is that of Dr. Warner. Dr. Warner then answered a number of questions upon which his advice was asked. The questions and his answers are as follows:- "QCCURRENCE: Set out whether, in your opinion, the incapacity from which the veteran has died resulted from an occurrence that happened during his eligible period/s of service. ELIGIBILITY PERIODS: 26/6/42 to 3/12/45 No. There 1s no evidence of hyoertension, atherosclerosis, Ischaemic Heart Disease or any other cardicvascular disease in the service documents. Veterans heart and blood ere recorded as normal on examinatic we ior Iu w ur noo 'so aes oO wo -7 6. discharqe (D2(a). None of the injuries or illnesses recorded in the service documents would have caused such a disabililty. ATTRIBUTABILITY: Set out whether, in your opinion, the incapacity from which the veteran has died, arose out of, or is attributable to his eligible period/s of service. No. It is most likely due to heredity {father died of heart disease), age and living in a Western highly urbanised society. . There are no factors on service known to influence its onset. Not due to any factor or factors known tc exist on service. State whether, in your opinion, the death has been caused by any service-related, or non-service related disability or the treatment thereof and the reasons for such opinion: No. If the cause of death includes more than one disability, state whether there is any causal relationship between them: Yes. Hypertension and Ischaemic Heart Disease and Vertebro Basilar insufficiency are causally related. AGGRAVATION: Set out whether, in your opinion, the incapacity from which the veteran has died has been contributed to in any material degree, or has been aggravated, by the conditions of his sligible veriod/s of service. ELIGIBILITY PERIODS: 26/6/42 to 3/12/45. No. Not prior to enlistment. I have studied the records relating to the veteran." Upon the basis of this material the claim went toa Repatriation Board on 8 December 1978 which, for reasons which it gave, was satisfied beyond reasonable doubt that there were insufficient arounds for qrarting the claim. On 5 February 1979 the widow wroce to the Board saying that she wished to appeal against its decision. Amongst other things she said:- "Juchout war service he was subjected to a Smee -- ' we you will agree can cause heart conditions in later years. The foundations of his complaint could have been laid during the war years so you will also agree there were many strains & stresses during those years." On 16 January 1980 the Commission disallowed the appeal. In its reasons the Commission referred to Dr. Warner's report and to the service of the deceased. It concluded its reasons . "The Commission accepts the opinion expressed by the departmental medical officer as a reasonable explanation as to the cause of the incapacity that led to death and the relationship of that incapacity to service. The Commission can find no basis for accepting that service was in any way responsible for the late member's death and is satisfied beyond reasonable doubt that insufficient ground exists to grant the clain. For these reasons, the appeal will be disallowed." The widow then applied to the Tribunal for a review of the Commission's decision pursuant to s. 107VC of the Act. Before the matter came before the Tribunal a further medical opinion was sought from a Dr. Perkins. [In a report dated 21 July 1981 he said:- "1. The veteran served from 26.6.42 to 3.12.45 nearly all of this period in the Northern Territory. Although some degree of stress would be involved I do not consider that the nature of his service should have had any continuing effects. There is no evidence in the service records of any reaction at the time. Thera is no clear evidence of any stress reaction since but the widow told Dr. Abrahams of a personality Change on 6.12.77 which I consider to be unrelated to his war service. I do not consider there were continued effects of stress from war service in this case. wb 8. 2. The veteran suffered sudden loss of consciousness while at lunch on 30.4.78 and died the next day without regaining consclousness. Death was attributed to cerebral haemorrhage secondary to hypertension but there was no proof of haemorrhage and hypertension was not remarkable. He also had auricular fibrillation (probably due to cardiomyopathy but possibly also to ischaemic heart disease) which could have caused a cerebral embolism. The onset was foo sudden for cerebral thrombosis. 3. If hypertension was oresent it developed after 17.2.77 and was mild. I do not consider it contributed to death. There was E.C.G. evidence of ischaemic heart disease in which factors such as age and diabetes mellitus would be involved. Diabetes - mellitus was diagnosed in 1971 and was not related to war service. There is mention of effects of alcohol as a cause of his ataxia. The history of alcohol intake is too meagre to justify this (12.2.71 "social at weekends"; 9.5.77 "average 5 middies/week"; 17.8.77 "moderate to heavy" (?)) but a combination of cerebellar ataxia, cardiomyopathy and liver enlargement is consistent with organic effects of alcohol. If this were so I find no relation between such effects and his war service." The matter came before the Tribunal on 10 December 1981, The presiding member thought that there was a conflict of opinion between Dr. Warner and Dr. Perkins as to the cause of 'D death. He decided to request the Secretary of the Departrent of Veterans' Affairs to arrange for a further investigation. The hearing of the application was adiocurned,. On 5 January 1982 the ovoresiding member wrat2 to the Secretary and yecuested, oursuant tos. LO7VZ cf the Act, that he arrange wide | ee eee "for an independent vascular specialist, and if considered aporopriate, other spectalists to express an opinion concerning the cause of Mr. Dunlop's death and to the possible relationship of his war service to the conditions which caused his death." The presiding member added:- "Having regard to the decision of the High Court in the Repatriation Commission v. Law concerning the onus of disproof xaeyvond reasonable doubt. the specialist should be asked to provide an opinion, in relation to the questions asked. as to the range of possibilities inthis case, that is, how likely or unlikely a particular conclusion is. He sheuld say, if he can, whether there is or is not a real possibility that the Applicant's war service could have caused or contributed to the conditions causing the subject incapacity." As a result of this letter Dr. Sevier, a Sydney physician, was asked to express an opinion. A copy of the letter was sent to him and his attention particularly drawn to it. Dr. Sevier was also furnished with the departmental summary relating to the deceased. I have already referred to the most relevant documents in that summary. Dr. Sevier reported on 19 August 1982, His report was marked "Confidential". The report 2s too long to set out at length but the more important paragraphs of 1t are as 39) Tollows:- "As requested, I have reviewed the summary (returned herewith), concerning the above-named, with pyparticular attention to the Tribunal's letter of Sth January 1982. It is noted that the Veteran never claimed for any heart or vascular condition, even though sundry other complaints were dealt wet with in July, 1971 (only s2ven vears orior to his death). Ye had married the oresent claimant in Fepruary, 1964. In 1971, he at 10. gave his hobby as golf, which does not suggest any serious cardio-vascular disorder at that time, and in 1977, he was well enough to make an Overseas trip. Having perused the summary, and the transcript of evidence before the Tribunal, it is my opinion that the most likely cause of Mr. Dunlop's death was haemorrhage from an atherosclerotic cerebral artery, due to hypertensive cerebro- and cardio-vascular disease. I consider that this disease is part of a generalised deqenerati-e orcocess, associated with ageing, andas such, 12s constitutional, rather than environmental in origin. Hence, I am of the opinion, that it is not related to War service either causally, or as regards aggravation or material contribution. The elapsed period of time (December, 1945 - May, 1978) between the . end of his service and the cerebro-vascular accident, would tend to support this view. eo ewe eee em meer eee reser ree n mere ereeeesernanenne The onset of his terminal illness, with sudden collapse, loss of consciousness, bilateral clonus and bilateral extensor Plantar reflexes is far more suggestive of acute massive cerebral haemorrhage, rather than a localised cerebral embolus from a fibrillating auricle. - His fundi showed Grade ITI hypertensive sions, which are frequently associated with atheroscleroti cerebral vessels. A The stated opinions of Drs Warner and Perkins, though differing, are not necessarily contradictory. Each Doctor 1s agreed that the actual cause of death was a sudden cerebro-vascular accident (whether haemorrhage or embolus) ard as such was in in no way related to the Veteran's War Service. The presence of hyvoertension (other than its degree) is not disouted, nor is the oresence of auricular fibrillation. The presumed presence of cardiomyopathy would have been one of the factors leading to cardiac enlargement and congestive cardiac failure (shortness of breath, etc.), the otner main 'factor being tne ischaemic heart disease - angina diac¢nesed in 1962, and the old (silenc) anterior mvcecard:al "1 . 1l. infarct diagnosed by Dr. D. Abrahams in September, 1977. The hereditary factor mav well have played a part in the occurrence of coronary artery atheroscleresis (father's heart disease and mother's diabetes). In conclusion, I must concur with the causes of death as stated on the Death certificate - cerebral haemorrhage, hypertension and cardiomyopathy. and repeat that, in my considered view, these causes were in no way related to the deceased's War Service. Under the circumstances, the question as to whether the auricular fibrillation was due tO ischaemic heart disease, or to cardiomyopathy, is not really pertinent. It does seem that the cardiomyopathy probably » had an alcoholic aetiology, as did the cerebellar degeneration." On 20 January 1983 the matter came before a differently constituted Tribunal. On that day the Tribunal decided to set aside the decision of the Commission made on 16 January 1980 and to substitute a decision that the Commission was liable to pay to the devendants of the deceased the pensions payable in accordance with the Act. Written notice of the Trzbunal's decision was issued in Svdnrey on 8 February 1983. The Tribunai vourported to dive reasons for 1ts decision. tT have used the word ""nurvorted" because one of the submissions made on behalf of the Commission was that the Tribunal had not in substance given reasons, as 1t was reauired to do, with the result that, for this reason alton, tnere was an error of law. After aqeneral reference co the facts, 'the Tribunal yeferred to the decision of the Hugn Court in Rapatriation T2mmiss2on v Law (1981) 35 A.L.J.R. O94. Of the gecision +o -- 12. "In Nanev Law, the High Court of Australia ruled that. before a claim could be refused the Repatriation Commission had to disprove, or exclude, the existence of a relevant relationship to war service and the standard required was proof beyond reasonable doubt. Insofar as the Board relied on the statutory report, it is obvious to the point of demonstration that, in the absence of finite evidence on causation (not disregarding, in this regard, what was said in Lennell), the attribution of the fatal condition to 4a "most likely" factor, and the inherently unsatisfactory mature of wnat were termed "the main causes," as listed, its decision could not be regarded as complying with the principles in Law. In short that quality of evidence cannot reasonably be regarded as disoroving the claim beyond reasonable doubt." The reference to Lennell is a reference to the decision of the Full Court of this Court in Lenneli v. Revatriation Commission (3rd February 1982, unreported). The Tribunal then referred to the request made by the earlier Tribunal on 5 January 1982 for a further medical opinion. The Tribunal said:- "The Tribunal respectfully comsiders tha thers are questionable features about = step taken by the Presiding Member in thi instance. It is of the opinion that bearing in mind the onus which th Commission bore, the evidence was in a condition in which it should have been comcluded - and apart from what has been stated above, <chis is reinforced by the uncertainty as to the cause of death - that, at that stage. the Commission had not discharged it onus. The Tribunal acknowledges chat section 107VZ gives the Presiding Member authority to taxe this step, put it auestions the necessity for doing so, having regard to the unambiguous statements cn onus, anc the imolictations thereof, by the Hien Court of Austraiza in Law. 13. There is the additional factor or the statements in the Presiding Member's letter on the principles in Law. Reference was made to the Hicgh Court ruling concerning onus of disproof beyond reasonable doubt, as in Law," but the specialist was invited "to say, if he can, whether there is or is nota real possibility that the Applicant's war service could have caused or contributed to the conditions causing the subject incapacity." This latter test antedated the High Court ruling on "onus" ard, while it may be reqarded as more comsistent withn Court rulings in Law prior to the High Court decision. these rulings, so far at least as onus was concerned, have been made largely irrelevant, as also was the stated test. By way of response to the Presiding Members' request, there was furnished, on September, 1982, to the Tribunal report - marked . "confidential" - from Dr. John Sevier, F.R.A.C.P., (Honorary Consulting Physician, Sydney Hospital). The reason why the report was marked "confidential" is not obvious to the Tribunal, but, because of the statutory provisions, this fact limits the Tribunal's capacity to refer to it. The Tribunal could seek to be released from this limitation, but, for present purposes, it is not considered necessary to do so." A number of things need to be said about tnese oaragraphs. Firstly, I find no rtuscificacion for the view af the Tribural that it was unable to use the report of Dr. Sevier because it was marked "Confzdentzal". The statutory provisions to which the Tribunal refer were not mentioned in arqument. In any event, if there were a orcblem, the Tribunal could. as it itself mentioned, have soucht 'to he released from any eroargo. iIrdeed, I would yo so far as vo say that if there were such a oroplem, the Tribunal snould be -- 14, Then the first of the quoted paragraphs ssems to suggest that the earlier Tribunal should not have sougnt the additional medical opinion from Dr. Sevier but should have proceeded to dispose of the case upon the basis of the material before it. Notwithstanding the Tribunal's later acknowledgement that the proceedings before it were s anquisiterial in character, there seems to be underlying ctnis criticism the view that the proceedings are more adversarial than inauisitorial. That is not the case. The position is the reverse. No doubt each Tribunal has a wide discretion to conduct proceedings before it inthe manner it considers best. But inmy view attempts such as were made by the earlier Tribunal to obtain assistance in the resolution of difficult cases are to be encouraged. In Repatriation Commission v. Bugg (27th July 1983, unreported) I referred to this problem (po. 24-25). In that case the Tribunal had complained of the absence of evidence, argument and submzssion to assist it in the resolution of the case before 1t. I expressed my sympathy for what the Tribunal had said. QO I would, with respect, reject the view which seems to me to be implicit in the first of the quoted paragraphs of the Tribunal's decision in this case tnat the course of seeking assistance by the obtaining of a further mecical opinion was in some way erroneous. Finally, ain relation to the quoted paragraphs of the Tribunal's decision it was submitted on behalf of the a Tommissicn that the orovisions oF s. l107V% of th t, 1 15. pursuant to which the earlier Tribunal purported to seek the report, did not permit such a course. The relevant orovision 1s para. (1)(c) which is as follows:- "The presiding member in relation to a proceeding before the Tribunal may, at any time, request the Secretary - eee we em heme remem eer een eer eevee erreeeeenseeraene (c) to arrange for the making of anv investzqation, or any medical examination, that the presiding member thinks necessary wit respect to the sroceeding, and to forward to the Tribunal a report of that investigation or examination." Senior counsel for the respondent submitted that there was not involved either the making of an investigation or a medical examination. He said that medical examinations contemplated by the provision were of living veterans and that an investigation was limited to an investigation of factual matters arising from a serviceman's or woman's military service and medical history. I express no view on the meaning in the provision of the expression "medical eyamination." I am satisfied that what was here done was an "anvestigation" for the purpose of the section. Tam satisfied therefore that the report of Dr. Sevier was properly sought by the earlier Tribunal, was properly before the Tribunal which made the decision and was material which it was obliged to taxe into accounc. That may itself be sufficient to warrant the conclusion of iaw in what che Tribunal Ss 'S Q "Ss "hat there ig disclosed an 2 hat said. In saying wnat TI have, I nave not overlooned «nat 16. the Tribunal said in the immediately following paragraph of the decision where the Tribunal expressed views on the siqnificance of what Dr. Sevier had said. The trouble is that the Tribunal went on to say that it had disregarded Dr. Sevier's opinion. The paragraphs of the decision in which these matters appear are as follows:- "It aus sufficient to say that Cr. Sevier's report did not answer eltner or the questions vosed by the Presiding Member. Nor is it sufficiently conclusive? to satisfy the voroper test under Law, and, in this reaard, while a most powerful opinion on the ordinarily accepted basis of medicai advice, the approach by Dr. Sevier was not dissimilar, and, therefore subject to the same deficiency on the law applicable in this case, as that provided by the Departmental Medical Officer in the statutory report. Dr. Sevier makes reference to "the most likely" cause of death; states that Mr. Davey's (sic.) father's death "may well have provided an hereditary factor in the veteran's subsequent demise" and expresses an opinion, without stating the evidentary foundation for it, that it "(did) not appear" that the deceased was sudjected to much trauma or stress during war service. The Tribunal finds that. in ressect of the Board's decision dated 8 December 19793 and the Commission's decision dated 16 January 1980, the onus of disproving Mrs Dunlop's claim was not discharged and. therefore, the claim should have been allowed. As stated previously and for the reasons given, the action taken by the Presiding Member of the Tribunal (above) was questionable ard che further opinion from Dr. Sevier need not have been obtained. For this. reason, and for the £ this decision. tne he er The Tribunal will sect aside the Commission s cecision unaer review and crant Mrs LCunico''s claim." . 17. The emphasis is mine. I do not find 1t necessary to @xpress a final view on -thether the Tribunal's treatment of Dr. Sevier's report itself disclosed an error of law. but I incline te the view that it does. Be that as it may, I prefer to rest my aecision on a broader basis. Befor2 [I state it, I should . 8) oms further mar IAD eee . yefear to in t ut th ns vu) Prior to concluding its reasons the Tribunal referred to some other decisions of the Tribunal and of this Court. After referring to these the Tribunal said:- "Both the Federal Court and this Tribunal, not only in Kupfer but other cases also. has made decisions the effect of which was to grant claims, under the Repatriation legislation for essential hypertension. Having regard to the characterisation of this Tribunal as an administrative tribunal. operating at present within predominantly inquisitorial procedures, it would doubtiess appear paradoxical and anomalous 1f the Tribunal did not make the same deciszon, while the evidence and the law applicable remain essentially of the same kind." One of the ovrincipal matters arqued was chat the Tribunal haa misairected itself as to tne stanaard OF orocr : 13. 1983, unreported) and of Toohey J. in Repatriation Commission v. Compton (29th- February 1934, unreported). Recently in O'Brien vy. Repatriation Commissicn (11 April 1984, unreported)), a Full Court of this Court comprising Sweeney, Fitzgerald and Keely JJ. has dealt with the question of the standard of vsroof. Keelv and Fuitzaerald JJ. reviewed the above aecisiors and als. Law's <rase, Lenreii': 1as3 274 another decision ofr the Full Court of this Court, Repatriation Commision v. Byrne (1981) 40 A.L.R. 296. tne learned Judges concluded that Toohey J.'s view expressed in Bishop's case (at p. 468) was erroneous and ought not to be followed. Counsel for the Commission has submitted that the judgment in OQ'Brien's case is in this respect itself wrong and that I ought not to follow it. He has submitted that I am able to take that course because what the Judges said about Bishoo's case was obiter. During the arqument I was informed chat application was Deing made cto the High Court by the Commission for special leave to anneal against the decision in )'Brien's case, That leave was granted on 8 June 1984 after I haa reserved nv Gecision. However, I see no point in delaving this judomens until the outcome of the appeal to the High Court. I think + ier, | 19. gomething to be said for the view that their decision on the matter in question is obiter but. .f for no other reason tnan rudicial comity, I should follow a considered decision of a Full Court so recently given. This whole area is a vexed one because of the form of the ledqislation. In order to help the Tribunal, tne Commission and the Revcatrration Ecards, ani also caries making application for pensions, judges have snaeavoured to assist the understanding of the onus and standard of proof provisions in sub-secs. 47(2) and 107VH(2) of the Act by endeavouring tO explain their meaning and significance. On the basis of some of the decisions of tribunais which I have seen I do not think that their attempts have been particularly successful. The resent case is another instance of this as was an earlier matter I had to consider, Buaga's case (supra). Unfortunately, what jludges have sa:d has led to glosses on the cwo creovisiors which ought net to be made. The essential task is tO apvoiy tne woras oF tne sections. T reveat my cum attempr in Buce's tas2 To "ake this clear. I tnere said (po. 22 - Z23):- "What a tribunal in a case such as this must do 1s to take into account the entirecy of the evidence and material wnich 1s sefore ut. After we1gning up This material ict should ask the auestion, "Am IT satisfied beyond reasonaple acubt that tnera are unsufricient qarounds for aranting tne claim?" The matter whicn neecs enchasisirg 1s that just decause a docter aces not know the caus2 of a disease he 1s not mrad trom exyressing tne srt 1sn. as ir. Cutner and Dr. Staceuier nave done Tnat Tr@ tanter was unrelatec to war se . ort mav well ope that in tany cases, es oun -- 20. this case itself, a tribunal will. aft considering all the material before it, 71 the onus of oweroof not discharged. And certainly the fact that the cause 1s unknown 1s arelevant factor for it to take into account. But for the reasons diven in Lennell's case it will rarely be conclusive. I stress that medical opinions tnat a disease is not war related may nevertheless be relevant and significant notwithstanding tnat the doctor is unable to assign a cause for the disease." . ads me to think that wnat i wo Nothing in O'Brien's case i there said is in conflict with the views of the Court there. Upon that approach, the question in this case is wnether the Tribunal has misdirected itself as to the onus and standard of proof. I have earlier set out the principal paragraphs of the Tribunal's decision. So far as I can judge its essential reasoning is to be found in the first of the paragrapns auoted onp. 16. The Tribunal is there critical of Dr. Sevier, firstly because he did not answer the auestions asked him and, secondly, because in some way Or. Sevier's ovinicns did not "satisfy tne coroner tast under Law." A comparison is drawn between Dr. Seviear's aporoach and tnat of Cr. Karner which was apparentiy also regarded as defective. The reason why the Tripunal made these criticisms was because the doctors had 19 a re) fe)nun re a. iD "$ iD A cay p i)iy at at wm ny fu wv rop ma ut tt oo)a nm i]" 1D a am accordance with the decisicn of tne High Court in Lawi=c (on s if pe: "s 1D mn a) oy tay a ty $2 Hany oO 'St tt s uw Ooct w id s fe vy Pe be] ry anyi — ran) fe :3 a Oo 1D '5 "y uv "s ' a) a fy at ray w ia] au i a p i m zt DD oeBy at An tt ty ul tat -- 2i. done ius to thrust upon the doctors who made the various medical reports the task of deciding the matter. In its opinion the doctors themselves were in some way bound. when reporting, to couch their lanquage in terms of the language of a person charged with the duty of deciding whether he was satisfied beyond reasonable doubt that there were insurficrent grounds for qrantirg che claim. The formulation of the opus and standard of proof ana any explanation thereof - to be found in the various authorities, are not matters for doctors. They are matters for the Tribunal which has to ask itself whether. upon the whole of the material berore it, it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim. What it should do is to take into account the entirety of the medical and other evidence as it finds it. The fact that Dr. Sevier may not have answered questions asked him may be relevant but it does not mean that what he has said in his report is not material important to be taren iunta account. What the td 'S Tryrzbunal should have dore was t2 out aside its attempted glosses on Law's case and the other cases to which it refers in its decision and concentrate on the evidence. When it had weraned the evidence up it snould then have reacned a aw -- 22. finding tribunal and it ought not to concern itself with re) a attempting to analyse a varlety of authorities, #ach of which was only antended to emphasise to 1t that 1¢ must in each case direct its mind to the question of whether it is satisfied beyond reasonable doubt that there are insufficient qrounds for granting the claim. I think the vroblem sore merncers of che Tribunal have 1s tnat <iner tannot resiit tne remotation to become involved in a daiscussicn of the Law. This leads them, not only to gloss the statute, but also to gloss the decisions of both the High Court and this Court which are bincing on it. What is lacking in this case 1s any real analysis of the factual material. This indeed is the basis for a further submission made by counsel for the appellant. namely, that the Tribunal has not given reasons for 1ts decision as it 1s required todo by para. 1O7VK{1)(b) of the Act. That is sorething with which I shall deal in a rement. I mention ir veal attemet to analyse the facts of the ratter. Fealix decision begins with a triticisr of the Boeard's decis continues with criticisms. firstly of 'the conduct cf the at 15 true that tnere 15 reference in 12 tO tne ansencre =F widance ag to the causa 3f tne nyrertensisn wnicta se ' -° 23. matter which ig relevant to be taken into account. But I emphasise, as was done in Lennell's case and in a number of later cases, including Buag's case, that just because a cause of death cannot be assiaqned, it does not follow that a tribunal may not, in a particular case, be satisfied beyond reasonable doubt that there are insufficient grounds for arantirg the clain. TRS gears T2028 2 Conesert wnitn tribunals are having difficuity grasping. What can be done to emphasise or explain the position to them more than has been done in the various judaments I do not know. I really would respectfully urge members of the Tribunal to go back to the words of the Act which are central to the problem and do their best to apply them without the glosses which they belfeve they find in the various authorities. Importantly, they should consider and analyse the facts of each case in detail. It ius only wnen that exercise has been carefully performed that tney will perceive their task. In some cases such an analysis of the facts will maze it clear chat no resort to the onus and standard of sroof srcvisions a eo @ » s ft py p rag w fo] of the Act 18 necessary. The evidence will he apolicant is entitled to a pension. These cases do rot usually give rise to difficulty. It 2s where there ars mouBt tnat tnere are insuriicsient greuras for aoranting tne clain. That imo oturn oairvcives 22 in iientiivin ana oe -"Mero -7 24. svecifying in its reasons any matters which to it constitute doubts which are reasonable. If it has no such doubt. its decision will be for the Commission. If it has. it will be for the applicant. But I emphasise that it is the identification and specificaticn of its doubts, if any, in 1ts reasons which will enable it to decide matters according =o law. That udentificaticn ana specification wili noc usually be possible unless an adequate review of the facts of each case 1s undertaken. If tribunals do not approach their task in this way, but, instead, do what has been done by the Tribunal in this case, they will always remain on the periphery of the case and be in grave danger of not coming to grips with what is involved. The fundamental error of law which. in my opinion. is revealed by the Tribunal's decision in this case is that it has cast upon the medical witnesses the task of deciding the matter. Because they did not ccsuch their lanquage in accordance with its perception of what had been decided in haw's case, it concluded that tneir evidence was. if not irrelevant. then unhelpful. That approach denied it the ability to perform its task as it should have. It did not turn its mind to che question of whether or not it was ne tr satisfied beyond reasonable doubt, upon the whole of material before it. that there were insufficiant crounas for Granting the ciaim: rather, 11 concluded that the doctors - [= an 3 - . on - wt 25, matter. Yet in truth. it had not itself addressed the question which the Act required it to consider. In consequence it didnot dischargqe the function which the legislature entrusted to it. That makes it unnecessary for me to deal with the further submission that the Tribunal has not given reasons decision dursuant tO cne eblicacticn nas im inact -~- LO7VK(1)(b). But I tnink this submission I think the Tribunal's reasonirg process was exposed by what 1t said. It was that exposure that enabled me to conclude that it had committed the error of law which I have found in its decision. It remains to say that in the circumstances it is unnecessary to deal with a further submission made by counsel for the Commission based on the Tribunal''s reference to Kupfer's case (supra). In short, the submission was based on what was said to be che Commission's reliance upon decision on similar facts pr [e) viding quicance a3 to ehould do in this case. in other words. so i= was suomitced, the Tribunal had felt itself bound by Kupfer 3 case, nov because of the legal principle for which 1t 15 authority, but because that was a case where the veteran was also suffering from essential hypertension. I axpress no view on thea submissicn. In tne circumstances che decision of the Tribunal 1s 327 aside. The case ig remicced to the Tribunal to be "eara and decided acain. <i express no view as to wnhstner tne Tribunal 26. should itgelf seek further evidence or offer the Commission or th respondent the opportunity of leading further evidence. That is a matter for the Tribunal hearing the case to decide upon. | certify that this and the 2S" preceding pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Sheppard. S p. HUTe HiSow Associate ee ee nee Dated 22 DowE /98L-