te JUDGMENT No. 28-7-Si= IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G439 of 1987 wwe ww GENERAL DIVISION BETWEEN: NORMA IRENE FALLS Appellant AND: REPATRIATION COMMISSION Respondent CORAM FOSTER, J. DATE: 13 MAY, 1988. PLACE: SYDNEY. 2 OJUN 1988 FEDERAL COURT OF AUSTRALIA Pon Pa, Pasi RY REASONS FOR JUDGMENT s . a ( EXTEMPORE ) HIS HONOUR: This is an appeal from a decision of the Veterans Appeals Division of the Administrative Appeals Tribunal ("the Tribunal"), rejecting a claim for a pension brought by the appellant, Norma Irene Falls, against the respondent, the Repatriation Commission. The claim is brought under s. 8 of the Veterans Entitlements Act, 1986 ("the Act") in respect of the death of Mrs. Falls' husband, Maurice Terence Falls, on 27 March 1981, at the age of 58. Mr. Falls died of bronchial asthma causing cardio-respiratory failure, chronic 2. obstructed airways disease and a gastric ulcer. There was no issue in the case that these conditions related to the deceased's heavy smoking of tobacco. The question was as to whether the deceased's smoking habit relevantly related to his war service with the Australian Army. It appears from uncontested evidence that the deceased had joined the Merchant Navy in 1940 at the age of fifteen. It further appears that he underwent highly stressful experiences over the next two years, being subjected to aircraft bombing, threats from submarines, and traumatic experiences resulting from being cooped up in close shipboard quarters with older seamen. He was on return to Australia in 1942 in a physically debilitated state and a highly nervous condition. He had commenced to smoke cigarettes and suffered to some extent from a resultant chest condition. He was erratic in his behaviour and tended to be emotionally labile and abusive. In the year of his return he joined or was conscripted into the Army. He was employed as a cook. He served in the Sydney area in barracks. He did not have operational service; he was absent without leave for much of the time, living with his wife and children in Sydney. He obviously was a poor soldier and could not settle to Army discipline or life in barracks. Indeed, between 2 November 1942 when he entered the Army until 3 July, 1946 when he was discharged, he was absent without leave, apart from the periods from 2 July 1942 to l January 1944, and 26 April, 1944 to 3 May, 1944. Accordingly, the deceased's service was not operational service for the 3. purposes of s. 6 of the Act, but constituted eligible service for the purposes of s. 7. A consequence of this fact is that the establishment of the claim required proof to a standard of reasonable satisfaction, the onus being on the applicant. The claim was made under ss 8.1(b) and (e) of the Act, which provide as follows:- "8.1 Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if - (b) the death of a veteran arose out of, or was attributable to, any eligible war service rendered by the veteran. (e) The injury or disease from which the veteran died - (i) was suffered or contracted while the veteran was rendering eligible war service but did not arise out of that service; or (ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service, and in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease, but not otherwise." It was alleged that the conditions causing the deceased's death were brought about, contributed to or aggravated by his smoking habit which was related to his war service in the Army. This was denied by the respondent. The Tribunal in affirming the decision under review held that he 4. was not reasonably satisfied that the deceased's death was attributable to his service in the Army or that the disease from which he died was contributed to in a material degree by it, or was aggravated by it. The evidence given on behalf of the appellant is summarised by the Tribunal from pages 4 to 8 of his reasons. It consists of the evidence of the appellant and of three members of her family. All deposed to the deceased having joined the merchant navy at the age of sixteen, at which time he was in excellent health, and to his return from two years service in theatres of war in a severely debilitated physical and nervous condition. He had not been a smoker prior to his departure but on return had become one. All deposed to observing a further marked deterioration in his health upon his entering the Army shortly thereafter and a significant increase in his smoking. The evidence would seem to indicate clearly enough that from being a moderate to heavy smoker he became, after entering camp life as an army cook, a heavily addicted chain smoker with an accompanying increase in coughing and signs of chest congestion. He was in barracks for approximately fourteen months from 2 November, 1942 and thereafter, apart from one week in 1944 as indicated, he was absent without leave until being finally discharged on 3 July, 1946. 5. His health remained bad thereafter, his heavy smoking continued as did his chest problems and nervous condition. It would appear from this evidence that he remained in this nervous condition with temperamental instability and an accompanying incapacity to hold down steady employment throughout life, with a steady worsening of his physical condition and a continuing heavy addiction to tobacco smoking until his death. This evidence asserts quite clearly that the demands of barracks life and army disciplines seriously worsened his nervous and physical condition, increased his state of psychological stress and induced a serious increase in his smoking habit. It also indicates, prima facie, that his deteriorating emotional and physical condition after fourteen months in the Army accounted for his being absent without leave. It was also indicated that he stayed at his home whilst absent without leave in circumstances where, presumably, he could fairly readily have been fined and removed by the Army authorities. The appellant also tendered a medical certificate from Doctor C.W. Clark. He had not treated the deceased but gave opinions based upon a consideration of material provided to him by the appellant's solicitors. The doctor was of the view that the deceased suffered from a chronic obstructive airways disease and that, in the context of his war service, he could "Only say that the only causative factor to his obstructive airways disease was cigarette smoking and it would appear that he was certainly smoking during the period of service. He also 6. had symptoms of lung problems during this time and one could relate this to his cigarette smoking". He also said that "His continued smoking contributed to the progression of his obstructive airways disease and that, if smoking can be regarded as a condition of service, then the obstructive airways disease would have been aggravated". On the basis of this evidence the appellant would appear to have made a fairly strong prima facie case that the deceased died from cardio-respiratory failure resulting from chronic obstructive airways disease attributable to heavy smoking which was itself either attributable to, contributed to in a material degree by, or was aggravated by nervous stress occasioned by his eligible war service, with the result that there would have been a prima facie entitlement to a pension under s. 8(1)(b) or (e). However, the Tribunal in his reasons did not indicate whether he accepted or rejected the lay evidence outlined above. He did not mention the evidence of Doctor Clark. The only evidence called for the respondent was that of Doctor G.P. Perkins who provided a short certificate and gave oral evidence. In his certificate he stated:- "The disease that caused his death had its origin and was first manifest during his service with the merchant navy and before his enlistment in the Army. The evidence in the service documents shows no aggravation during service. I do not consider that his Army service in New South Wales would have adversely affected this disorder." In his oral evidence in chief he stated again that he could not: "See any contribution from the conditions of his 7. Army service". To the morbid respiratory condition which it was: "Fair to attribute to smoking." The Tribunal, in his reasons, stated: "Generally I accept the evidence of Doctor Perkins." It is accordingly put by the respondent that the Tribunal's decision is basically one of fact only and therefore not amenable to review by the Court. On behalf of the appellant it is submitted that, when the Tribunal's reasons are examined, appellable errors of law appear. In furtherance of this submission the appellant raises the question, what exactly did the evidence of Doctor Perkins amount to? It appears from the evidence and from the findings of the Tribunal in respect of it that it was based primarily upon Army records with some regard to a letter written by the appellant herself and which was in the Army medical files. It appears that the doctor was prepared to disregard answers given by the deceased at the time of entry into the Army to standard questions as to his state of health, which answers had apparently indicated that the deceased had made no claim of ill health. The doctor indicated that such answers were quite commonly given and were of little weight in contrast with the deceased's Army medical records of September, 1943. Those records, the relevant portions of which are set out in the Tribunal's reasons, indicate that at that time the deceased had a cough and an upper respiratory tract infection 8. and that he stated that he had had the cough for one year, with blood flecked sputum. It appears that in examination on 4 September, 1943, his chest, after a period of hospitalization had become clear and that sputum was recorded = as "brown/nicotine". This examination took place after he had been in the Army for approximately ten months. As previously indicated, approximately four months later, he commenced taking absence without leave and thereafter only briefly performed duties in 1944, There was no further medical examinations by the Army after the one referred to. It is to be observed that that examination does not refer to or deal in any way with any question of the deceased's emotional condition. The doctor was asked as to whether he had heard the evidence of the lay witnesses in Court and he indicated that he had. When asked as to whether that evidence caused him to revise his view, he said "I do not think so" and "I could not say I got a clear picture from the 'various witnesses this morning but it seemed to me not everybody was aware that he had a cough, but if it was a cough that was mainly present in the mornings, as has been stated on the service document, other people might not necessarily have been aware of it." He was asked, "Were you in Court when you heard evidence from Mrs. Falls to the effect that the coughing increased considerably during his Army service as distinct from his merchant navy service?" Answer, "Yes". "And similar evidence from other witnesses?" Answer "Yes". "And that does 9. not alter your view as to what you have given in your report?" Answer "No, I am distinguishing between his cough getting worse and his coughing getting worse because of the conditions of his war service as I understand it". It is difficult to assess the weight, if any, that this evidence has in relation to what appears to be the main factual issue in the case, namely, whether Army life induced emotional stress in the deceased, which led to a significant increase in his smoking habit. It seems at least likely that the true import of Doctor Perkin's evidence appears in the final question and answer in his evidence. This question and answer reads as follows: "Doctor, you say in your report the evidence in the service documents shows no aggravation during service, when he continued to smoke heavily, the fact of smoking would show aggravation temporarily while he was still in the Army, would it not?" Answer "Smoking over a period of time, yes. I mean, that is the main factor, I think in the cause of his respiratory disorder and in its progress over the years. There ts nothing in the service documents to show any change in the overall state of his chest condition. There is nothing to find on enlistment. He did have a respiratory infection in 1942 but his chest, it was only a matter of three days and his chest was described as clear prior to discharge. And, of course, we did not get another examination after that. So there is nothing in the service documents to show there has been any deterioration. Whether some had occurred as a result of continued smoking, one cannot really say." 10. This evidence makes no reference to any question of emotional stress in the army situation. It 1s clear, of course, from cases such as Sprod v. Repatriation Commission, (unreported Full Federal Court, G226 of 1982); O'Brien v. Repatriation Commission, F.F.C. 53 A.L.R. 477; and Re Foulger and Repatriation Commission, 2 A.L.D. 789; that emotional conditions related to the stress of non-combat Army life can be held to contribute to injury or disease or conditions causing death and thus give rise to entitlement to pension rights. In Sprod's Case, there was a question as to whether nervous tension and stress associated with war service could have contributed to the applicant's essential hyper-tension. Davies, J. said (at page 507):- "It is not necessary for attributability that such a nervous state or anxiety condition be caused by or contributed to by enemy action or by active service on the field of war. Camp life, service discipline and inter-personal relationships between servicemen can equally cause or contribute to its development." Indeed, the learned Tribunal cited this passage in the course of his reasons. The appellant's first claim that an error of law has occurred relates to the Tribunal's contrasting of Sprod's Case with Holthouse v. Repatriation Commission, 1 R.P.D. 287. In the latter case, Davies, J. had held that injuries sustained by the applicant serviceman whilst moving a pot plant in his home preparatory to moving to a new station, was, in the circumstances, not something arising out of his defence service but a matter purely within his private life. 11. Contrary to the appellant's submission, I do not think that this passage of the Tribunal's reasons, when read with a later reference to the cases in those reasons, indicates that Holthouse was being treated as in some way overruling Sprod, with the result that the Tribunal was holding, as a matter of law, that a condition caused or contributed to by camp life and service discipline was no longer a basis for pension entitlement. I consider that the Tribunal was merely indicating that some conditions, although arising during Army service, could nevertheless be regarded as being of purely domestic or private origin, a principle clearly exemplified by Holthouse. The Tribunal held that the facts of the present case were "more analogous" to those in Holthouse's Case than to those in Sprod's Case and that the factors which caused the deceased to smoke while in the Army were not matters that raised a reasonable hypothesis, that the deceased's incapacity and subsequent death were "attributable to his service in the Army or were contributed to in a material degree or aggravated by any elgible war service." The appellant claims that in reaching this ultimate conclusion of fact the Tribunal fell into other errors of law. It is, of course, clearly established on the facts that the deceased was absent without leave for about the latter two-thirds of his Army service and that in 1944 he was in fact 12. charged with desertion, being found not guilty of that serious offence but guilty only of being absent without leave. In this context, the Tribunal made the following findings:~ "In my view the stress that the deceased suffered while he was in the army was not stress which was due to the nature of the employment with the army but stress which resulted from his conflict with the army authorities resulting from his persistently being AWOL. The position was well described by the applicant's evidence where she told of the deceased asking permission to go home and when he was refused he just left and told the soldiers concerned to cook their own breakfast. Whether the reason the deceased was absent without leave was because he was helping his wife with the children or because he was suffering from bronchitis contracted from the smoking he commenced while in the merchant navy is not, I think, material. Neither was due to his service as a cook in the Army." This passage precedes and appears to provide the basis for the Tribunal's holding that the case was more analogous to Holthouse than to Sprod. In considering this passage, it appears appropriate to have regard to what the Tribunal said before the commencement of addresses:- "I think I would be assisted in this matter if you would deal with what the result is of a possible finding that the cause of any stress, which made the applicant smoke while he was in the army, was the fact he did not like army discipline and the fact that he got himself across the army authorities by going AWOL, and it was that sort of stress rather than the sort of stress that he might have been subjected to when he was on a merchant ship going through a war zone, or the sort of stress that Mr. Law was subject to in a prisoner-of-war camp. I do not know whether that is war service stress; and I would ask you to refer me to any authorities dealing with that sort of thing." Quite clearly, authorities such as Sprod and Foulger show that stress resulting from an adverse reaction to Army discipline and camp life and causing disability is "war service 13. stress." Moreover, going AWOL or even deserting can also result from such stress. In the present case, the appellant was certainly entitled to have considered the question whether the deceased's conflict with Army authorities and his going absent without leave was not simply another manifestation, along with his smoking, of his reaction to what was to hin, especially in the condition he was left in after his service in the merchant navy, the intolerable conditions of service in the Army. The passage set out above from the Tribunal's reasons shows two quite likely sources of legal error. - Firstly, the learned Tribunal may have adopted the approach that the deceased's negative or hostile attitude to authority and to his work as a cook, and also his going absent without leave inevitably constituted an independent cause of his stress-related disabilities, that in effect, when he petulantly refused to perform his duties and de-camped without authority, he necessarily broke the chain of causation between whatever stress he was suffering in his army life and his later stress-induced heavy smoking with its deleterious effect upon his health. If this be so, then the Tribunal would not have considered a crucial matter, namely whether stress and accompanying heavy smoking throughout 1943, resulting from his reaction to Army life itself, brought about his refusal of duty and his going absent without leave, in which case, of course, 14. the continuance of his disabilities whilst away from the Army could still be seen as causally connected with that stress. Secondly, the references to "natue of employment", and to "service as a cook in the army" suggest that the Tribunal may have applied too restrictive a test in determining whether the deceased's smoking was attributable to, or aggravated by his Army service. The consideration of the deleterious effect upon the deceased of his Army service is not in any way to be restricted to his work as a cook. The whole effect of camp life and discipline upon him is clearly, upon the authorities, a proper matter for consideration. It may be that the Tribunal was not seeking to restrict the area of his investigation simply to stress relating to the deceased's culinary duties, but, if that be so, I consider, with respect, that the Tribunal has failed to make this clear. In the result, by reason of the matters just adverted to, and also because the Tribunal has not indicated whether, and if so, to what extent, he has accepted the lay evidence referred to above, and also what precise effect in the case he has given to the evidence of Doctor Perkins. I have come to the conclusion that there has been a failure on the Tribunal's part to comply with the provisions of 8. 43(2) of the Administrative Appeals Tribunal Act, 1975. 15. I consider that this case is one to which the principles expressed by Keely and Fitzgerald, JJ. in O'Brien's Case at page 491, should be applied. There their Honours say:~ "The Administrative Appeals Tribunal Act, 1975 (s 43(2)) specifically requires that reasons including any findings of fact be given by the Tribunal and the manifest object of the Act is that no entitlement under the Act to a pension which is claimed should remain' unsatisfied. That legislative police would be thwarted if inadequacy in the expression of reasons were to disguise any possible errors. In our opinion, this court in its supervision of the implementation of the Act should regard a failure to comply adequately with the obligation to give reasons as itself constituting error of law, at least when a claim to a pension is rejected: see Smith v. Repatriation Commission, 29 March 1983 - unreported; cf Australian Timber Workers' Union v. Monaro Sawmills Pty. Ltd. (1980) 29 A.L.R. 322; 42 F.L.R. 369 at 374, 380; Sullivan v. Department of Transport (1978) 20 A.L.R. 323. In the present case, the Tribunal's decision fails to expose a satisfactory process of reasoning which led to the rejection of the appellant's claim and contains a reason for concluding that there was error." I am therefore satisfied that error of law has been demonstrated and that the MTribunal's decision should accordingly be set aside. It is clearly not an appropriate case, there being outstanding questions of credibility of witnesses, for this Court to deal with the grant of a pension. I therefore make the following orders:- 1. The decision of the Tribunal is set aside; 2. The case is remitted to the Tribunal to be dealt with in accordance with these reasons, with or without the taking of further evidence; and 16. The respondent is to pay the appellant's costs of this Appeal. I certify that this and the iS preceding pages are a true copy of the reasons for judgment herein of his Honour, Mr. Justice Foster. Dated: IS Jue, LAeR .