JUDGMENT No. sane SQuuf Soh, Repatriation - war widow's pension - death of former member of Armed Forces from carcinoma - whether aetiology of disease unknown - whether death arose out of or was attributable to war service - preference of Tribunal for medical evidence suggesting no connection between death and war service - application by Tribunal of law consistent with authorities Repatriation Act 1920 ss.27, 107C, 107VH, 107VZ2H SARAH SYBIL BROWN v. THE REPATRIATION COMMISSION No. WA G30 of 1984 TOOHEY J. PERTH 2 JULY 1984 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G30 of 1984 — ewww ON APPEAL FROM THE REPATRIATION REVIEW TRIBUNAL BETWEEN: SARAH SYBIL BROWN Appellant and THE REPATRIATION COMMISSION Respondent CORAM: TOOHEY J. 2 July 1984 REASONS FOR JUDGMENT This is an appeal from a decision of the Repatriation Review Tribunal on 6 March 1984 in which the Tribunal decided that there were insufficient grounds for granting the applicant's claim for a pension under the Repatriation Act 1920. This appeal was argued immediately following the hearing of the appeal in Repatriation Commission v. Rector, in which I have just delivered judgment. The same counsel appeared in both appeals and, by agreement, counsel only dealt shortly with decisions that had been examined in some detail at the earlier hearing. The questions of law identified in the notice of appeal were whether the Tribunal could on the evidence before it he satisfied beyond reasonable doubt that Mr. Brown's death did not arise out of or was not attributable to his war service; whether the Tribunal could be satisfied beyond reasonable doubt that the death of an ex member of the Forces did not arise out of or was not attributable to war service where the cause of the disease from which he died was not known; and whether the Tribunal was entitled to reject the evidence of one medical practitioner and prefer the evidence of another when such evidence was in the form of medical reports. Counsel for the applicant made it clear that it was not his contention that, faced with medical evidence in the form of reports unaccompanied by oral testimony, the Tribunal could not prefer the evidence of one doctor to that of another. Rather, the submission was that there was no logical basis for preferring the evidence of one doctor to that of another. I doubt very much that this is a question of law but it is of little moment since I am satisfied that the issue whether the Tribunal, on the evidence before it, could be satisfied beyond reasonable doubt that the death of the deceased did not arise out of or was not attributable to war service is itself a question of law. This much was conceded by counsel for the respondent. The decision of the Tribunal, delivered on 14 November 1983, affirmed a decision of the Repatriation Commission dated 5 February 1982, which had rejected Mrs. Brown's claim to a pension arising from the death of her husband. This matter has had a long history. Mr. Brown died on 27 April 1974. On 26 September 1974 the Repatriation Board rejected his widow's claim and appeals by her to the Repatriation Commission were rejected on 27 November 1974, 21 August 1975 and 23 August 1976. A subsequent appeal to the War Pensions Entitlement Appeal Tribunal (a body which no longer exists) was disallowed on 15 August 1978. This Court is concerned only with the decision of the Repatriation Tribunal. The decision which that Tribunal was called upon to review was a decision refusing a claim; hence the Tribunal was required, by para. 107VH(2)(a) of the Act, to set aside the decision unless it was "satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the clain". The period of Mr. Brown's eligible service for the purposes of the Repatriation Act was 11 March 1944 until 18 May 1945. During that time he served in the RAAF and was in New Guinea from 11 March 1945 until 28 April 1945. The cause of his death was noted as fulminating infection due to widespread malignancy from carcinoma of the rectum. The Tribunal's reasons for decision are long and detailed. It posed as the matter to be decided by it "not whether it is satisfied there is a relationship between the member's war service and his death, but whether it is satisfied beyond reasonable doubt that any such relationship has been excluded". That approach is in conformity with para.107VH(2)(a) of the Act and with the decision of the High Court in Repatriation Commission v. Law (1981) 36 ALR 411. The material before the Tribunal and now before the Court shows a detailed medical history going back to 1944. During Mr. Brown's period of eligible service there is nothing in the medical records of any apparent relevance to the cancer from which he died except a reference to malaria. This was dealt with by the Tribunal in the following way: "After his discharge he had one bout of malaria in July 1945 and reported again with malaria in November 1945 but the diagnosis of malaria was not confirmed". It was not until 1973 that carcinoma was diagnosed. On 19 July 1973 Dr. Waters, a physician, noted that Mr. Brown started to develop diarrhoea in January 1973. He continued: "Rectal examination reveals a mass in the anterior wall of the rectum which feels like a carcinoma. Diagnosis: Probable Carcinoma of the Rectum". The diagnosis was confirmed and Mr. Brown died the following year. In the proceedings before the Tribunal much reliance was placed on behalf of Mrs. Brown on reports furnished by Dr. Hainsworth of the State Health Laboratory Services. On 11 June 1975 Dr. Hainsworth reported that he had read the file on the deceased and could find "no direct association between his terminal carcinoma and his death". Clearly this was an error and was corrected by Dr. Hainsworth in a later report in which he made it clear that he was speaking of association between the carcinoma and war service. In his first report, Dr. Hainsworth continued: "However, the causes of carcinoma of the rectum are unknown and there could have been some aspect of his war service which predisposed him to subsequent development of carcinoma. There is some evidence to show that the development of tumours may be related to alterations in a person's immune mechanisms as a result ef chronic infection e.g. malaria. There is no way to prove that this man's death was not the result of his war service and this should introduce sufficient doubt for your appeal to succeed under Section 47 of the Repatriation Act". In his report of 8 March 1976, Dr. Hainsworth disagreed with an opinion given by Dr. Martin that, because Mr. Brown's illness occurred so long after war service, it could not be related to war service. Dr. Hainsworth continued: Dr. "In those carcinomas where aetiological factors are known there is often a surprising length of time between exposure to the aetiological factor and the development of carcinoma. For example a particular tumour of the lung results from minor exposure to a certain type of asbestos, the tumours never develop in less than 20 years after exposure and sometimes the interval is as long as 40 years. It is also quite well known that malignant cells can lie dormant for many years and this feature can again spread the length of time between initiation of the tumour and clinical evidence of it". Hainsworth concluded his report in this way: "In the face of the gradually increasing amount of information about the aetiology of malignant disease it is unwise to be dogmatic and say thata certain period of a patient's life had no significance. There is no way to prove that this man's death was not the result of his war service and I feel that the doubt thus introduced should be resolved in favour of the appellant". Of these reports the Tribunal said that they: "... were not based on any recorded medical evidence on the member's file and thus could be considered as speculative as toa causal relationship to war service of the disease that led to the death of the member in this case. Furthermore the Act does not require proof absolute, rather it requires a proof beyond reasonable doubt". Furthermore it may be said that report was less a medical opinion than reasoning. That is not to criticise the assess the weight to be attached to it in of the material before the Tribunal. Dr. Hainsworth's earlier a piece of syllogistic report; it is simply to relation to the entirety Likewise the concluding sentence of Dr. Hainsworth report of 8 March 1976 is by way of argument rather than medical opinion. The Tribunal attached much weight to the evidence of Dr. Martin and Dr. van den Brenk. Dr. Martin was a senior medical officer (appeals). Commenting on Dr. Hainsworth's observation that there may have been some aspect of Mr. Brown's war service predisposing him to carcinoma, Dr. Martin said: "The veteran had short service and was discharged fit. There was no abdominal or bowel complaint recorded in the service documents, nor in the early post-war years. There was some evidence that the veteran had malaria in 1945 on one occasion. There is no evidence in the veteran's file that his immune mechanisms were interfered with. If war service had interfered with his immune mechanisms one would have expected him to have been incapacitated by infections at an early age, or for him to have succumbed to a fatal disease much earlier than his age of death, of 69 years". Dr. Martin was of the opinion that Mr. Brown's illness occurred too long after war service to be related to that service. In a later report, dealing with Dr. Hainsworth's reference to carcinomas where aetiological factors were known, Dr. Martin commented that with adenocarcinoma of the recto-sigmoid junction (the condition from which Mr. Brown suffered) the aetiological factors were not known. But, he added, adenocarcinoma of the recto-sigmoid was not related to leukemias or allied disorders. Dr. Martin concluded: "The time relationship between the onset of the initiating carcinogenic stimulus and the appearance of clinical symptoms is unknown. There is no medical evidence to incriminate any factor of war service in the initiation of the veteran's cancer". At the time of his report of 26 January 1982, Dr. van den Brenk was also a senior medical officer (appeals). He held specialist degrees in surgery and radiation oncology. He had been Professor of Cancer Research at London University, Director of the Richard Dimbleby Laboratory of Cancer Research, St. Thomas' Hospital Medical School and a consultant physician to St. Thomas' Hospital, London. He had spent over 30 years in the treatment and investigation of malignant diseases and had been responsible for the initiation and direction of cancer research laboratories and clinical research units in oncology in London and Melbourne as well as holding consultant posts at a major London and Melbourne teaching hospitals. There can be no doubt of his qualifications in the medical area with which the Tribunal was concerned. Dr. van den Brenk's report of 26 January 1982 may be summed up in this way. There is no record of Mr. Brown having any disease of the alimentary tract during the period of eligible service. There are certain risk factors, believed to predispose to cancer of the rectum or colon, but the deceased did not develop these diseases. He had some infection illnesses on service but none caused immunosuppression, In any event there is no evidence that immunosuppression causes cancer. If a person became severely depressed through being unable to mount an effective immunological response toa new foreign antigen, such a person would havea gross haematological disease with panhaemocytopenia and be ina state of health comparable to an individual dying from lethal irradiation. He would certainly not survive for another 29 years. Dr. van den Brenk's conclusion was: "In my opinion to submit that the member became immunodepressed on service (whether or not this has any bearing on the aetiology of cancer development) is patently false. Refer Dr. Martin's opinion (31.7.75) which I endorse". Of Dr. van den Brenk the Tribunal said that: 10. »» he is eminently qualified and has given compelling reasons to rebut the opinion expressed by Dr. Hainsworth and on that basis the Tribunal find that the evidence of Dr. Hainsworth has been destroyed by Dr. Martin and Dr. van den Brenk in regard to this specific case". While one might cavil at the use of the term "destroyed", there can be no doubt that the Tribunal accepted, as it was entitled to, the evidence of Dr. Martin and Dr. van den Brenk and not that of Dr. Hainsworth. That is not the end of the matter. The Tribunal had before it a paper given by Sir Edward Dunlop entitled "The Acceptance of Cancer as War Caused". This paper was inthe form of a submission in connection with a proposed review of the Repatriation Act. Sir Edward Dunlop's qualifications and experience are well known. His evidence featured prominently in the Law case at all levels. It must be remembered that in Law, as Murphy J. pointed out in 36 ALR at p.413, "Although the claimant did not have to adduce proof, there was formidable support for her case". There was evidence to establish the deceased's original addiction to smoking on war service and his continued addiction and heavy smoking for many years thereafter. As Murphy J. said, "the expert evidence by an eminent medical authority, Sir Edward Dunlop, fully supported the attribution of the death from lung cancer to his war service". li. Speaking of Sir Edward Dunlop's 1970 paper, the Tribunal in the present case said that it was a general paper on cancer, not relating specifically to the case under review. The Tribunal continued: "Certain claims in the paper relate to the disease from which Mr. Brown, the member, died but Sir Edward relates colon and rectal tumours with a strong association to ulcerative colitis and to a lesser extent dysentry and irritable colon disorders. None of these diseases appear in the member's medical records". This assessment of the relevance of Sir Edward Dunlop's Paper to the claim before it was an assessment open to the Tribunal to make. That is not to say it was bound to make such an assessment, any more than it was bound to prefer the evidence of Drs. Martin and van den Brenk to that of Dr. Hainsworth. But this Court does not sit as a reviewing authority from decisions of the Tribunal. Appeals are brought to this Court on questions of law, not merely where a question of law is involved. Cf. Income Tax Assessment Act 1936 sub-s.196(1). If the Tribunal has not erred in law, an appeal to this Court cannot succeed. Reference has already been made to the question posed by the Tribunal for itself to answer. Later in its reasons the Tribunal said that it "must find for the applicant and set aside the Commission decision unless it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim". 12. That approach accords with authority. The Tribunal said that it found as facts: " , the member did not suffer during war service from chronic infection of any kind which might have presumed to have altered his immune mechanisms. » there is no evidence showing any immune deficiency or any relation- ship between immuno-deficiency and the member's carcinoma of the rectum from which he died". The Tribunal continued in a passage which I set out as it was the subject of attack by the applicant: "'No evidence' of course is not the the test to be applied. Rather the test is: 'Is there evidence of disproof?' and the fact that there is 'no evidence' is one of the factors that the Tribunal must take into account when deciding for itself whether the Commission's onus of disproof beyond reasonable doubt has been discharged". Referring to the reasons of the Commission for the claim, the Tribunal concluded with this finding: ",.. those reasons and the medical opinion on which they were based established beyond reasonable doubt that the illness that caused the member's death was unrelated to his war service in terms of Section 101 of the Act". rejecting 13. Counsel for the appellant submitted that "the fact that the tribunal considers that the departmental evidence has disproved any evidence in favour of the claim is not the final question". Counsel referred to the joint judgment of Keely and Fitzgerald J. in O'Brien v. Repatriation Commission (unreported decision of Full Court of Federal Court delivered 11 April 1984) at p.38 where their Honours said: "If there is no material in respect of a fact, or if the material is neutral in the sense that it leaves the existence of the fact unknown, there is no rational basis for a choice between the conclusion that the fact does exist and the conclusion that it does not. The non-existence of that fact is not the only rational conclusion. There is no need that there also be material which points toa 'real' possibility of the existence of that fact. That 'real' possibility is left open by the evidence". Counsel then submitted that the material fact in the present application is whether or not some factor in the deceased's war service was related to the ultimate development of his cancer and that, where that fact was not known one way or the other, "then there is no other conclusion that can be drawn than that the claim must he granted; because that fact has not been - or the possibility that that occurred, that there was some factor in war service, has not been negatived beyond reasonable doubt". It should be noted that in O'Brien, Keely and Fitzgerald Jd. continued: 14. "Thus, it may not be established beyond reasonable doubt that incapacity or death is not 'connected with' war service either because there is material which points positively to a cause of the incapacity or death which is or might be so 'connected' (as, for example, in Law, Byrne, and Morcombe), or because of some inadequacy in the Material to show the absence of a connection". But it is apparent that the Tribunal did not consider the material before it to be neutral or think that there was inadequacy in the material before it to show the absence of a connection. The Tribunal expressed its clear preference for the evidence of Dr. Martin and Dr. van den Brenk, and by reason of the acceptance of their evidence it was satisfied beyond reasonable doubt that there was no connection between the carcinoma from which Mr. Brown died and his war service. The situation here is different from that in Law where there was competing medical evidence so that Aickin J. said at p.423: "Although the medical reports were in conflict, no challenge appears to have been made to the standing or expertise of any of the medical experts. In that situation it is difficult indeed to see how the Tribunal could properly have been satisfied beyond reasonable doubt that the reports favourable to the applicant were wrong". 15. And, in O'Brien, there were conflicting medical opinions. But, in the present case, there was in truth no conflict of medical evidence. No criticism of Dr. Hainsworth is intended when I say that his reports were essentially argumentative, expressing a view of the operation of the Act. On the other hand, the reports of Dr. Martin and Dr. van den Brenk did not leave the situation simply where the aetiology of the disease was unknown. In effect they said that had the carcinoma been attributable to war service, its symptoms would have been apparent much earlier than they were. The situation was one of those to which Sweeney J. alluded in O'Brien when he said at p.10: ",.. the state of the evidence, including the state of medical knowledge of a particular condition, may lead to the result that the Tribunal will conclude that, while it cannot be satisfied beyond reasonable doubt of the precise cause of the condition, it may be so satisfied that there was no connection between war service and the condition". See also Lennell v. Repatriation Commission (1982) 4 ALN No. 29. The real question in this appeal is whether it was open to the Tribunal to be satisfied beyond reasonable doubt that Mr. Brown's death did not arise out of or was not attributable to war service. In my view it was open to the Tribunal to be so satisfied. The appeal should be dismissed. I certify that this and the fourteen preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey Associate Dated: 2 July 1984