Simmons, Gary David v Repatriation Commison [1998] FCA 347

FEDERAL COURT OF AUSTRALIA VETERANS' AFFAIRS - appeal from a decision of the Administrative Appeals Tribunal refusing to allow a claim for medical treatment and a pension - war-caused injury or disease - whether the reasoning of the Administrative Appeals Tribunal conformed with the requirements under s 120 of the Veterans' Entitlement Act 1986 (Cth). Administrative Appeals Tribunal Act 1975 (Cth) - s 44 Veterans' Entitlements Act 1986 (Cth) - ss 9(1), 13(1), 120, 120A Byrnes v Repatriation Commission (1993) 177 CLR 564 GARY DAVID SIMMONS v REPATRIATION COMMISSION

QG 38 of 1997

FOSTER J 8 April 1998 SYDNEY (Heard in Brisbane)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 38 of 1997

on appeal from the administrative appeals tribunal

BETWEEN: GARY DAVID SIMMONS

Appellant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: FOSTER J

DATE OF ORDER: 8 April 1998

WHERE MADE: SYDNEY (Heard in Brisbane)

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 38 of 1997

on appeal from the administrative appeals tribunal

BETWEEN: GARY DAVID SIMMONS

Appellant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: FOSTER J

DATE: 8 April 1998

PLACE: SYDNEY (Heard in Brisbane)

REASONS FOR JUDGMENT This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 19 May 1997. This decision affirmed the decision of the Veterans' Review Board which had been given on 21 November 1995. The latter decision had affirmed a previous decision of the Delegate of the Repatriation Commission given on 13 March 1995 refusing the applicant's claim for medical treatment and a pension for incapacity for chronic airflow limitation and heart condition brought under the provisions of the Veterans' Entitlements Act 1986 (Cth) ("the Act"). The present appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and is confined to questions of law. As the appeal has some unusual features it is of assistance to mention briefly the prior history of the applicant's claim. It was originally made on 31 October 1994 and was in respect of "lungs, nerves, heart". The claim for "nerves" was deferred and has never been the subject of decision. It would appear that this was done with the consent of the applicant. He made a number of complaints in the hearing before me, but this was not one of them. The claim in respect of "lungs" was accepted as one in relation to chronic airflow limitation. That in respect of "heart" was not the subject of specification in terms of any recognised disease or condition of malfunction of the heart. As the claim was brought under the Act it was necessary, for the success of the application, that the applicant establish incapacity from a "war-caused injury" or a "war-caused disease" (s 13(1)). The relevant condition would be taken as "war-caused" if it resulted from an occurrence that happened whilst the applicant "was rendering operational service" (s 9(1)). The only period of operational service rendered by the applicant while he was a member of the Royal Australian Navy was a period served in Vietnam from 15 September 1969 to 11 April 1970. His total period of service in the Navy was from 9 June 1965 until 5 November 1971. It appears that during most of his service he worked as a diver. In the determination of his claim it was relevant to consider the provisions of the Act dealing with the onus and standard of proof relating to establishing that a condition was relevantly "war-caused". I shall make reference to these later in these reasons. The decision of the Delegate referred to the applicable law in this regard. It took account of the applicant's smoking history as revealed in his claim and found that this history did not result in the establishment of his chronic airflow limitation as being relevantly war-caused, there being no "service related smoking history of 10 pack years", this being a prerequisite for the establishment of such a claim based upon cigarette smoking. In relation to the claim for "heart", the evidence failed to establish that the applicant was suffering from any relevant heart problem. Consequently the application was refused. The applicant appealed to the Veterans' Review Board. He requested that the Board deal with his appeal in his absence. He did not appear and was not represented. The Board, accordingly, dealt with his appeal on the basis of the documentary material placed before it. It affirmed the Delegate's decision. In its written reasons it referred to the relevant legislation in the following terms:- "In respect of the veteran's operational service, subsections 120(1) and 120(3) of the Act apply. Therefore, the Board is required to find that his chronic airflow limitation and heart condition were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Board must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstances of the particular service rendered by him. The meaning of the 'reasonable hypothesis' provisions has been considered by the Courts in a number of cases. The most important principles and the proper approach to be adopted by decision-makers have been set down by the High Court in the cases of Bushell and Byrnes respectively. Additionally, because the originating claim in this case was lodged after 1 June 1994, the Board is required to apply section 120A of the Act in reaching its decision. This means that the Board is required to assess the reasonableness of hypotheses in accordance with any Statements of Principles or relevant determinations or declarations under the Act. In this case, there is RMA ... Statement of Principles No 17 of 1994 as amended by [No] 65 of 1994 is relevant." In relation to the claim for "heart", the Board referred to an examination by a specialist conducted on 30 January 1995 which stated that no heart condition was found. There being nothing in the documents to challenge that opinion the Board affirmed that the application made on this basis should be rejected. In relation to chronic airflow limitation the medical evidence indicated that the applicant suffered from chronic bronchitis which seemed "to be a major contributing factor to his chronic airflow limitation". The Board considered the evidence as to the acquisition by the applicant of a smoking habit and also as to the aspiration of salt water whilst diving. It considered the smoking evidence in the context of the provisions of the "Statement of Principles". In this regard it said:- "The relevant portion of the Repatriation Medical Authority Statement of Principles Instrument No 17 as amended by Statement of Principles Instrument No 65 of 1994, set out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic airflow limitation or death from chronic airflow limitation, with the circumstances of service and the relevant one in this case is: 'Smoking at least 10 pack years before clinical onset of chronic airflow limitation, and that the smoking habit must be related to any service rendered by that person.' From the evidence provided by the veteran it is clear that he started smoking at a significant rate in 1965, associated with his commencement of diving at in [sic] the navy." The Board also said that "It is evident also that he suffered an episode of aspiration of salt water whilst diving in August 1970". The Board's determination was in the following terms:- "The Board finds that the cause of the veteran's chronic airflow limitation is his smoking habit which commenced in 1965 some four years before his period of eligible operational service in Vietnam in 1969-70, was well established by that time, and it cannot therefore be regarded as a war-caused habit. His condition was aggravated by salt water aspiration in August 1970, and again, unfortunately for the veteran, this was during a period of non eligible service in terms of the Act. Having reviewed the whole of the material before it and for the reasons given above, the Board is of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). Therefore, the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veteran's chronic airflow limitation was war-caused. In these circumstances, the Board is required to affirm the decision under review." The applicant appealed from this decision to the Tribunal. His appeal was heard on 1 April 1997. On this occasion he appeared in person and gave evidence before the Tribunal. I shall make brief reference to this evidence later in these reasons. The Tribunal, in reasons given orally at the end of the hearing, rejected the appeal. Later, on 19 May 1997, in a written decision which substantially repeated the terms of the oral reasons, it formally affirmed the decisions under review. It is this decision which, of course, is the subject of this appeal. It is convenient, now, to refer to the terms of that decision and the course of the hearing before me. At the hearing Mr Simmons appeared in person, having supplied the Court with some written submissions. The respondent was represented by counsel. At the outset of the hearing I raised with counsel some preliminary concerns that I had in relation to the Tribunal's reasons for decision. These reasons are short and it is appropriate that I set them out. They are as follows:- "1. This is an application to review a decision to reject a disability claim for 'lungs', chronic airways obstruction, and also to review a decision to disallow a pension for a condition claimed as 'heart'. 2. So far as the heart condition is concerned, the medical evidence is to the effect that currently Mr. Simmons has nothing wrong with his heart. In one of the reports by a Dr. John Hill, dated 22 April 1996, he says that he can find nothing wrong with Mr. Simmons' heart but that there is a possibility that he may have minor pericarditis. We are not satisfied that Mr. Simmons currently has anything wrong with his heart. The decision to reject the claim for 'heart' for pension purposes is affirmed. 3. So far as the claim for lung problems is concerned, the medical evidence is to the effect that Mr. Simmons suffers from chronic bronchitis. The medical records show consistently that Mr. Simmons suffered from lung and bronchitis problems during his service in the late 1960s. He was urged by treating doctors time and again, to give up smoking. The Statement of Principles that we have to be guided by says that smoking causes chronic air-flow limitation, which includes chronic bronchitis. It seems to us that Mr. Simmons' smoking is the main culprit in the development of his chronic bronchitis. 4. Mr. Simmons took up smoking and was a heavy smoker long before the period of his eligible service, 15 September 1969 to 11 April 1970. In fact, he had been smoking heavily for some three or four years prior to that. 5. Alternatively, there is some suggestion that ingestion of, or aspiration of, seawater during a diving incident in August 1970 may have something to do with his chronic bronchitis, but that occurred after the period of eligible service. 6. Mr. Simmons' lung problems were either caused by his smoking or by the aspiration of sea water, or by a combination of both. His heavy smoking habit was well established prior to his eligible service. The diving incident occurred after his eligible service. Consequently, the claim for disability pension for lung problems fails. 7. The decisions under review are affirmed." My concerns, as expressed to counsel, were that, the hearing before the Tribunal being a hearing de novo, I could detect in these reasons no indication that the Tribunal had engaged in the reasoning processes required by s 120 of the Act, as interpreted in decisions of the High Court. In particular, I discussed with counsel the absence from the reasons of any reference to the summary of the position appearing in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 per Mason CJ, Gaudron and McHugh JJ where their Honours stated:- "(1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." Counsel accepted that the Tribunal's reasons did not expose this reasoning process, but submitted that in the circumstances of the case this should not lead to a finding of relevant error of law. He contended that a reading of the totality of the material before the Tribunal together with the transcript of the applicant's evidence before it, the comments and questions of the Tribunal members, and the short oral reasons to which I have already made reference, would satisfy me that the thrust of the Tribunal's reasons was that no reasonable hypothesis had been raised in respect of either of the medical conditions relied upon. He further submitted that it would be inappropriate for the matter to be returned to the Tribunal as no other result could possibly ensue other than that the applicant's claims be rejected in toto. He also relied upon the well established principle that this Court, in reviewing decisions of the Tribunal should make due allowance for the circumstances in which they were given and not be overzealous in the finding of errors of law. I decided that my preliminary concerns should not be dealt with as a preliminary point. Accordingly, I heard the applicant's oral submissions. These were of no assistance. They consisted of a series of complaints amounting to an allegation of conspiracy to withhold from him records of his service and treatment. He made particular reference to the fact that he had been provided with different reference numbers in respect of certain of the reports in the documents before the Tribunal. He appeared to attribute this fact to conspiracy rather than mistake. In any event he failed to make clear what relevance this had to any case of error of law which he sought to raise. A reading of his evidence before the Tribunal indicated that he had adopted the same approach at that hearing. The evidence is replete with requests from members of the Tribunal that he relate any incidents in the relevant operational period upon which he relied as being the cause of his bronchitis or alleged heart condition. These questions which were put plainly enough were never answered. It is plain that the Tribunal was at some pains to elicit from the applicant the basis of the claims he made in respect of "lungs" and "heart". They were unable to do so. Before the Tribunal, as before the previous decision-makers, the applicant had the insurmountable difficulty that the current medical evidence was to the effect that he had no relevant heart problem, whatever concerns might have been felt in this regard in 1970 and 1971. Accordingly, there was no basis for any claim under the Act. Accordingly, no error of law could be demonstrated in the Tribunal's refusal of this claim and its affirmation of the finding of the Veteran's Review Board. So far as the claim for chronic airways obstruction was concerned, it was established that the applicant suffered from chronic bronchitis. The question for the Tribunal was, in the first instance, whether a reasonable hypothesis had been raised of a connection between this bronchitis and his period of operational service. The Tribunal, in this regard, referred to "the Statement of Principles that we have to be guided by". It is appropriate, at this point, to set out the section of the Act which deals with "Statements of Principles" and also to make brief reference to the Statement in question. It is sufficiently clear, in my view, that the Tribunal, without expressly referring to these provisions had them in mind when making the decision in question. Section 120A of the Act relevantly provides as follows:- "(1)This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; ... (3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B (2) or (11);... that upholds the hypothesis." At all relevant times in respect of the applicant's application there was in existence a Statement of Principles concerning chronic airflow limitation. The Statement lists "factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic airflow limitation ... with the circumstances of a person's relevant service". These factors do not include the aspiration of salt water. Accordingly, it was unnecessary for the Tribunal or the other decision-makers to have had regard to the applicant's claims that he had suffered bronchitis as a result of breathing in sea water during diving operations. This was not a factor capable of raising a relevant hypothesis. In any event, however, the decision-makers, including the Tribunal, did consider this matter and found that any sea water aspiration had taken place after the period of operational service had elapsed. I have considered the evidence bearing upon this. It fully supports this conclusion. Accordingly, there could have been no relevant hypothesis relating to the aspiration of sea water having a causal connection with the applicant's bronchitis. I am satisfied that no error of law has been demonstrated in this regard. Insofar as any claim could have been based upon the applicant's smoking, the Statement of Principles required that, for this to be a factor in the raising of a reasonable hypothesis, the applicant must have been engaged in "smoking at least 10 pack-years of cigarettes before the clinical onset of chronic airflow limitation". A pack year is 7,300 cigarettes. The Tribunal found as a fact, as had previous decision-makers, that "Mr Simmons took up smoking and was a heavy smoker long before the period of his eligible service, 15 September 1969 to 11 April 1970". In these circumstances there was no basis upon which the required reasonable hypothesis could be raised. It is, in my view, quite reasonable, in all the circumstances of this case, to treat the Tribunal's finding, although not expressed as such, as being one of absence of the required reasonable hypothesis. I am satisfied that no relevant error of law has been demonstrated in the Tribunal's decision. Accordingly, this appeal is dismissed with costs.