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No.21 October 2008

Repatriation Commission v Green

[2008] FCA 1132

COURT Federal Court, Melbourne
DATE OF DECISION 30 October 2008
DECISION Appeal allowed, remitted to AAT to be reheard
ISSUES Standard of proof for existence of disease in sub-hypothesis


Mr Green served in the Australian Army in World War 2 and in the RAAF in Korea in 1953-54. He committed suicide by cutting the carotid artery and jugular vein in his neck. His widow claimed a war widow’s pension on the ground that the veteran killed himself because he had a war-caused throat cancer. The veteran had lived in the Philippines for many years and there was no medical evidence available about his illness. The claim was rejected by the Commission and the decision was affirmed on review by the Veterans’ Review Board (VRB).  She appealed to the Administrative Appeals Tribunal (AAT), which set aside the Commission’s decision and granted war widow’s pension. The Repatriation Commission appealed from the decision of the AAT to the Federal Court.

The Tribunal’s reasoning

The Tribunal found that the material before it raised a hypothesis that Mr Green suffered from either a malignant neoplasm of the larynx or some other severe illness that was related to his service-related smoking habit, and that this disease became so painful that it precipitated his suicide. This was despite there being no medical opinion to support that hypothesis. The Commission had conceded that if the AAT found that the veteran suffered from malignant neoplasm of the larynx, it would concede a link to service via the veteran’s smoking habit.

The AAT consulted a medical textbook and a website and provided those authorities to the Commission for its comments. The Commission responded by saying that its Medical Adviser, Dr Morgan, had advised that Mrs Green’s evidence of the veteran’s symptoms were consistent with throat cancer, but also with other chronic conditions such as non-malignant tumours (eg, laryngeal nodules, squamous papillomas) and chronic infections such as TB or candida, and the symptoms do not point to any specific laryngeal condition.

The AAT then consulted other internet sites concerning a number of the other chronic conditions postulated by Dr Morgan, and said that these conditions have smoking as one of the possible causes, and that no SoP exists for them. In relation to the infections, the AAT said that the medical texts and internet sites concerning these conditions did not match the symptoms as described by Mrs Green.

The AAT then found that it was open for it to find that the veteran suffered from a severe illness that was related to smoking and that this severe illness satisfied the requirement in the Statement of Principles concerning suicide that the veteran had suffered from a ‘severe illness’ within the meaning of a ‘severe psychosocial stressor’ as defined in that Statement of Principles.

The Court’s Consideration

Justice Ryan held that the AAT had to find. on the balance of probabilities. what disease the veteran suffered from before it could link that disease to the veteran’s service and to his suicide. Ryan J said:

‘[64] … the decision-maker is required to review the collection of symptoms disclosed by the evidence and determine whether or not it fits within the template afforded by any SoP considered applicable. That is to be done whether or not the claimant or any witness has ascribed to the collection of symptoms a label … The task for the decision-maker is to find whether, on the balance of probabilities, the veteran suffered from a condition specified in the SoP … and whether at least one of the factors … was related to the veteran’s service …
[68] In my view, the non-existence of an SoP for those diseases did not absolve the Tribunal from the need to make a finding as to whether it was more probable than not that the veteran suffered from one or other of them rather than from malignant neoplasm of the larynx. …
[72] [The Tribunal] overlooked the fact that the Commission’s concession was expressly conditioned on a finding of malignant neoplasm of the larynx. If the Tribunal was unable to make a finding as specific as that, it remained under the necessity, in the absence of an appropriately widened concession, of determining whether the more generalised condition which it was able to ascribe to the veteran was a “severe illness” evoking feelings of substantial distress in the veteran within the definition of “severe psychosocial stressor” in the SoP concerning “Suicide or Attempted Suicide”. The Tribunal was also obliged to find on the balance of probabilities that whatever “severe illness” it did find was related to the veteran’s war service either by the “war-caused smoking habit” which the Commission had been prepared to concede in the event of a finding of malignant neoplasm of the larynx or by some other link such as exposure to toxic fumes for which the respondent had contended in the alternative.
[73] The Tribunal’s failure to ask the questions necessary to make at least the findings of fact which I have just indicated was, in my opinion, an error of law in the construction and application of the relevant sections of the VE Act and the two SoPs in issue. …’

Formal decision

Justice Ryan allowed the Repatriation Commission’s appeal, set aside the decision of the Tribunal and remitted the matter to be reheard. The Repatriation Commission did not seek an order for costs.

Editorial Note

Standard of proof for the existence of a disease in a sub-hypothesis

In this case, the Court has held that the existence of an injury or disease that is part of the hypothesised chain of causation between service and the veteran’s death (or presumably another claimed injury or disease) is to be determined on the balance of probabilities rather than merely pointed to by the material before the decision-maker. This is required whether or not there is a SoP for the particular injury or disease.

Practical application

If it is hypothesised that a person suffered from alcohol dependence due to service, which led to hypertension, which in turn led to the claimed ischaemic heart disease, the decision-maker must first determine, on the balance of probabilities that the person suffered from alcohol dependence and hypertension as well as the ischemic heart disease before the hypothesis can be considered to be reasonable. The material needs to do more than merely point to the existence of those diseases.

All Practice Notes