FEDERAL COURT OF AUSTRALIA Repatriation Commission v Rogers (1999) FCA 489 VETERANS' AFFAIRS – Death from bowel cancer – Whether war caused – Smoking – Whether causally related to war service – Statement of Principles – Construction – Tribunal's failure to deal with party's argument – Failure to provide reasons – Error of law. Veterans Entitlements Act 1986 s 120(4), 120B(3), 196B(3) Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 99 ALR 267 applied Repatriation Commission v Smith (1997) 45 ALD 523 applied Re Poyser and Mills' Arbitration [1964] 2 QB 467 applied Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 applied Dornan v Riordan (1990) 24 FCR 564 applied Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied REPATRIATION COMMISSION v WINIFRED JOAN ROGERS VG 148 OF 1998 SUNDBERG J 22 APRIL 1999 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 148 OF 1998 BETWEEN: REPATRIATION COMMISSION Applicant AND: WINIFRED JOAN ROGERS Respondent JUDGE: SUNDBERG J DATE OF ORDER: 22 APRIL 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal made on 17 March 1998 be set aside. 3. The decision of the applicant made on 6 July 1995 be affirmed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 148 OF 1998 BETWEEN: REPATRIATION COMMISSION Applicant AND: WINIFRED JOAN ROGERS Respondent JUDGE: SUNDBERG J DATE: 22 APRIL 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT BACKGROUND 1 William John Rogers ("the veteran") died on 15 September 1988 aged 70. His death certificate recorded the cause of death as "disseminated adenocarcinoma bowel‑ 1 month". On 10 February 1995 the respondent, the veteran's widow, lodged a claim to have his death accepted as war‑caused pursuant to s 8(1)(b) of the Veterans' Entitlements Act 1986 ("the Act"), which provides that the death of a veteran is to be taken to have been war‑caused if it "arose out of, or was attributable to, any eligible war service rendered by the veteran". The claim was refused by a delegate of the Repatriation Commission and on review by the Veterans' Review Board. The Board's decision was set aside by the Administrative Appeals Tribunal which substituted a decision that the veteran's service was war‑caused. The Commission appeals to this Court. THE LEGISLATION 2 The veteran served with the Australian Army within Australia from 13 September 1941 to 26 November 1945. He rendered "eligible war service" as that term is defined in s 7 of the Act. His service was not "operational service", and thus whether his death was war‑caused depends on s 120(4), which provides that "the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, … decide the matter to its reasonable satisfaction." Section 120B(3) provides that "In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if: (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and (b) there is in force: (i) a Statement of Principles determined under subsection 196B(3) … that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service." 3 Division 1 of Part XIA of the Act (which consists of ss 196A to 196K) establishes the Repatriation Medical Authority ("the Authority) and sets out its functions and powers. Section 196B(3) provides in part that "If the Authority is of the view that on the sound medical‑scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to: (a) eligible war service (other than operational service) rendered by veterans … … the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (c) the factors that must exist; and (d) which of those factors must be related to service rendered by a person; before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service." THE STATEMENT OF PRINCIPLES 4 In January 1996 the Authority determined a Statement of Principles concerning Malignant Neoplasm of the Colon. Clause 5 of the determination is in part as follows: "The factors that must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the colon or death from malignant neoplasm of the colon is connected with the circumstances of a person's relevant service are: … (b) smoking cigarettes or other tobacco products, where the equivalent of at least 30 pack years was consumed 30 years or more before the clinical onset of malignant neoplasm of the colon; or (c) drinking at least 500 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the colon; or (d) having had an altered dietary pattern resulting in a 50% increase in animal fat consumption and a 50% decrease in dietary fibre consumption for at least 20 years before the clinical onset of malignant neoplasm of the colon; or … (f) suffering from Crohn's disease before the clinical onset of malignant neoplasm of the colon; or … (h) undergoing a course of therapeutic radiation involving the abdominal or pelvic region 10 years or more before the clinical onset of malignant neoplasm of the colon; or (j) being physically inactive for at least 15 years more than five years before the clinical onset of malignant neoplasm of the colon; or (k) being occupationally exposed to asbestos for 10 years more than 10 years before the clinical onset of malignant neoplasm of the colon …. …" Only factor (b) is directly relevant to the present case. But the other factors I have set out are of assistance in determining the meaning of factor (b). The expression "pack‑year" in factor (b) means 7300 cigarettes, or 1460 cigars or 7.3 kg of pipe tobacco. EVIDENCE BEFORE THE TRIBUNAL 5 Having set out s 120B(3) and factor (b), the Tribunal summarised the evidence given by the respondent and by George Skinner, who had served with the veteran during the War. The Tribunal's account is in accordance with the evidence, and was not challenged by counsel. When the respondent first met the veteran in 1977 he smoked cigarettes. He was then a recently retired meat inspector. In August 1979, after he had suffered a stroke, he moved into the respondent's house where she looked after him. He continued to smoke but reduced his consumption a little. On 1 May 1980 they married. It was the veteran's custom to walk to the corner shop early each morning for cigarettes, papers and milk. He would smoke one or two cigarettes before breakfast and three or four after breakfast while he read the papers. Five days a week the respondent was away from the house from 9:30 am to 5:00 pm. She could smell cigarette smoke in the house when she returned. After the evening meal, which was usually about 6:00 pm, the veteran would have one or two cigarettes and about three more later in the evening while watching television. This pattern of cigarette consumption continued until about 1987, when he reduced it to four or five cigarettes per day upon being diagnosed with bowel cancer. The respondent said the veteran had not told her when or why he started smoking. 6 Mr Skinner and the veteran met in early 1942 whilst on Army service in Alice Springs. Both were transport drivers. Mr Skinner noticed that the veteran was smoking and drinking. According to Mr Skinner there was a good deal of stress involved in driving a load of fuel or ammunition, particularly when the truck was an International Case 6 Truck the spare tyre of which was fixed on the driver's side of the cabin in such a way as would prevent exit from the driver's side if the truck rolled. On other occasions when they met Mr Skinner noticed that the veteran was smoking. They often talked about cycling, in which they were both interested, and the lack of opportunities for training. They saw each other about every three weeks during service. Mr Skinner said that two cigarette packets per week were included in rations, but more were freely available. Later in 1943, during a period of leave when they had a few drinks together, Mr Skinner noticed that the veteran was smoking heavily. After the war they met at Army reunions during the 1970s in Melbourne, Adelaide and Mt Gambier. Mr Skinner recalled that the veteran was smoking and had heavily nicotine stained fingers. In the early 1980s, at a reunion in Mt Gambier, he remembered the veteran smoking. They had never discussed when the veteran began smoking. TRIBUNAL'S DECISION 7 The reasoning leading to the Tribunal's conclusion that the veteran's death was war‑caused is contained in the following passage from its reasons: "The evidence of the veteran's smoking history is somewhat sketchy and the applicant's evidence on that issue was not totally convincing but, I keep in mind that we are here concerned initially with facts or circumstances occurring more than fifty years ago relating to a person now deceased. For instance there is no evidence one way or the other as to whether the veteran smoked prior to joining the Army. The evidence establishes that the veteran was a smoker during his war service, on occasions moderately heavy as observed by Mr Skinner. There was no evidence to suggest that the veteran gave up smoking post war. Rather the available evidence points to the probability of the veteran continuing to be a moderately heavy smoker until the late 1970s and thereafter continuing to smoke about twenty cigarettes per day until 1987. It is of course a possibility that the veteran began smoking prior to war service but after examining the available evidence the more likely scenario is that the veteran began smoking during war service. In a temporal sense, I accept on the evidence of Mr Skinner that there is probably a connection between the commencement of smoking and war service. The evidence that the veteran was actively involved in cycle racing points to the probability that pre war service he was a non smoker and the probability is that his smoking habit was acquired under the particular conditions of his service. In the present case on all the evidence and material I am on balance reasonably satisfied that the veteran's smoking habit was causally related to his war service and that it was of sufficient duration and quantity to meet factor 5(b) in the relevant Statement of Principles. The evidence of smoking which satisfies factor 5(b) of the relevant Statement of Principles upholds the contention that the veteran's death is war‑caused." CONSTRUCTION OF FACTOR (B) 8 The Commission contends that the period in which the prescribed quantity of tobacco products must have been consumed is a period preceding 30 years before the clinical onset of the disease. The veteran began smoking in 1942 and the clinical onset of the disease was in 1987. On this view the relevant period is from 1942 to 1957. The respondent submits that the relevant period is the 30 years preceding the diagnosis in 1987, namely from 1957 to 1987. Clause 5 of the Statement of Principles employs several different temporal expressions apart from that in factor (b): · an unspecified period immediately preceding the clinical onset of the malignant neoplasm (eg factor (f) – suffering from Crohn's disease before the onset) · a minimum period immediately preceding the clinical onset during the whole of which the factor must have existed (factor (d) – altered dietary pattern for at least 20 years before onset) · a minimum period immediately preceding the clinical onset before which an event must have occurred (factor (h) – radiation occurring 10 years or more before the onset) · a minimum period ending before the clinical onset during the whole of which the factor must have existed (factor (j) – being physically inactive for at least 15 years more than five years before the onset) · a specified period ending before the clinical onset during the whole of which the factor must have existed (factor (k) – being exposed to asbestos for 10 years more than 10 years before the onset) · a specified period before the clinical onset during which the factor must have occurred (factor (c) – drinking a quantity of alcohol within any 25 year period before the onset). 9 In my view factor (b) is directed to the quantity of tobacco products consumed 30 or more years before the clinical onset, and not to the quantity consumed in the 30 years or more immediately preceding the onset. Three considerations point to this conclusion. First, that is the natural meaning of the words used. This becomes more clear if the relevant part of the definition of "pack years" is inserted in the body of factor (b), so that it reads "smoking … at least 219,000 cigarettes … 30 years or more before the clinical onset …". If the Authority had intended the relevant period to be the 30 years preceding the onset, it would have used the phrase it employed in factor (d), namely "consumed for at least 30 years before". Secondly, factors (j) and (k) refer to periods ending X years before clinical onset, and although the verbiage of those factors is more distinct than that of factor (b), there is no real difference between the three factors in the manner in which they express the temporal element. In factors (j) and (k) the reference is to "more than X years", and in factor (b) to "X years or more". Thirdly, the expression "X years or more before the clinical onset" is used only in factors (b) and (h). In factor (h) it clearly refers to a period ending X years before clinical onset. It is reasonable to suppose that the expression has the same meaning wherever it is used in the determination. 10 If factor (b) is viewed in isolation, it may seem strange that there is a gap of 30 years between the smoking and the clinical onset. However, when the factors are read as a whole, any strangeness dissipates. For the factors include other cases in which there is a gap between the conduct or fact involved and the clinical onset. There is a 15 year gap in factor (j) and a 10 year gap in factor (k). No expert evidence was called as to the reasons for the periods referred to in the various factors, as to why some have gaps, or as to the scientific or medical basis of factor (b). In those circumstances I simply have to do the best I can using conventional processes of construction. THE TRIBUNAL'S APPROACH TO FACTOR (B) 11 Although the proper construction of factor (b) was explored in submissions before the Tribunal, it did not in its reasons expressly adopt a particular construction. It appears, however, that it did not adopt what I regard as the true meaning of the factor. On that construction, consumption by the veteran after 1957 would be irrelevant. Yet the Tribunal attached importance to the respondent's evidence about the veteran's consumption after she first met him in 1977, and to Mr Skinner's observations of the veteran's smoking habits in the 1970s and early 1980s. At least that appears to be what the Tribunal relied on, because, having set out the evidence, it said simply that "on all the evidence and material I am on balance reasonably satisfied that the veteran's smoking habit … was of sufficient duration and quantity to meet factor 5(b) …". GROUNDS OF REVIEW (a) Mistaken construction of factor (b) 12 It follows from what I regard as the proper construction of factor (b) that in order for the Tribunal to determine that the veteran's death was attributable to his eligible war service through the smoking of cigarettes, it was necessary that it decide, on the balance of probabilities · the date of clinical onset of the veteran's condition · whether he consumed 219,000 cigarettes during a period that ended at least 30 years before that date · whether that consumption was causally related to the veteran's service. The Tribunal did not identify the date of clinical onset of the condition. It made no findings on the length of the period (ending 30 years before the date of clinical onset) during which the veteran consumed cigarettes. It did not make any findings on the rate or the total of the veteran's consumption. The Tribunal misconstrued factor (b), and as a result failed to address itself to the questions posed by s 120B(3). It thus made an error of law. I reject the respondent's submission that the construction of a Statement of Principles is a matter of fact for the Tribunal. A determination under s 196B is a form of delegated legislation. A determination is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901: s 196D. See also Shelton v Repatriation Commission [1999] FCA 181. (b) Failure to deal with appellant's argument 13 It will be apparent from what I have said that the Tribunal also failed to deal with the Commission's argument as to the true meaning of factor (b). The transcript shows that the argument was clearly propounded on a number of occasions. Failure to deal with a submission put to it may amount to an error of law by the Tribunal, either because it constitutes a non‑compliance with s 43(2) or (2B), or because it brings about a miscarriage of justice by disabling this Court from deciding whether the Tribunal's decision was vitiated by an error of law. See Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 99 ALR 267 at 276‑277 and Repatriation Commission v Smith (1997) 45 ALD 523 at 530‑531. In the present case the omission did, I think, amount to an error of law. The submission was clearly put by the Commission's representative. It was controverted by senior counsel who appeared for the respondent, in the sense that counsel sought to make out factor (b) by reference to the veteran's smoking in the 1970s and 1980s. The proper construction of factor (b) was central to the resolution of the case. The facts found by the Tribunal made the true construction a live issue. (c) Failure to provide reasons 14 Section 43(2) requires the Tribunal to give reasons for its decision. Sub‑section (2B) requires written reasons to include the Tribunal's findings on material questions of fact and a reference to the evidence or other material on which those findings were based. As I have said, the Tribunal had to reach a conclusion on each of the three matters referred to above before it could decide that the veteran's death was attributable to eligible war service through the smoking of cigarettes. It made no findings on the first two of them. Further, it did not refer to the evidence that would support findings on any of the three matters. The Tribunal's general reference to "all the evidence and material" does not satisfy the requirement in s 43(2B). After reading the Tribunal's decision the Commission would, in my view, have been unable to understand why the decision had gone the way it did. See Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 477‑478; Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507; Dornan v Riordan (1990) 24 FCR 564 at 573‑574. (d) No evidence to support the findings required by factor (b) 15 The evidence before the Tribunal was, in my view, incapable of supporting the findings required by factor (b). The date of clinical onset of the veteran's condition was 1987, when he first started to get sick and went to the doctor. Accordingly, the period referred to in factor (b) ended in 1957. The veteran began smoking after joining the Army. Thus the period referred to in factor (b) is 15 years. In order to satisfy factor (b) the veteran would need to have smoked an average of 40 cigarettes a day for all of the 15 years. According to Mr Skinner, the standard issue of cigarettes was 40 per week, though drivers could obtain more. Transport drivers such as the veteran smoked an average 20 cigarettes a day. The other evidence related to consumption outside the relevant period. When Mr Skinner met the veteran at Mt Gambier in the early 1980s, he noticed that the veteran's fingers were heavily nicotine stained, and inferred from this that he was then a heavy smoker. From his observations Mr Skinner thought that for the veteran's fingers to have become so stained he would have had to have smoked in the order of 30 or 40 cigarettes a day. He had not noticed nicotine stains on the veteran's fingers during the war, and based on his experience as a smoker and an observer of other smokers, Mr Skinner opined that someone who smokes 10 or 15 a day does not get nicotine on his fingers. The evidence is not capable of supporting a finding that from 1942 to 1957 the veteran consumed an average of 40 cigarettes a day. It might support a finding that he consumed that number in the 1970s, but that is not the relevant period. An absence of evidence to sustain a finding or inference of fact gives rise to an error of law for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑358. CONCLUSION 16 In view of my conclusion on the "no evidence" issue, the appropriate course is to allow the appeal, set aside the Tribunal's decision, and substitute a decision that the decision of the Commission be affirmed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 22 April 1999 Counsel for the Applicant: P J Hanks Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: D De Marchi Solicitors for the Respondent: De Marchi & Associates Date of Hearing: 13 April 1999