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Forrester v Repatriation Commission

[2013] FCA 898

COURT Federal Court, Melbourne
JUDGE Mortimer J
DATE OF DECISION 6 September 2013
DECISION The appeal was dismissed
ISSUES Whether the Tribunal erred in finding material before it did not point to or support hypothesis advanced- whether link between events and operational service too remote or tenuous- whether Tribunal’s reasoning inconsistent with its conclusion

Facts

Mrs Forrester applied for a pension under the VEA following the death of her husband Mr Forrester. On 30 November 2012, the Administrative Appeals Tribunal (AAT) affirmed the Commission’s decision refusing to grant the pension.

The cause of death in this case (ruptured abdominal aortic aneurism) was not in dispute.  There was also no dispute that hypertension was a risk factor in the relevant Statement of Principles (SOP).  The remaining issue before the AAT was whether Mr Forrester’s hypertension could be related to his operational service by way of an increase in Mr Forrester’s pre-service alcohol consumption.

While there was evidence in Mr Forrester’s service personnel records and other historical evidence which corroborated the occurrence of the events alleged to have caused him to increase his alcohol consumption, there was no evidence of an increase in alcohol consumption during or immediately after operational service and no evidence that any of the events relied on had any particular effect on alcohol consumption. The AAT therefore concluded that there was no material pointing to the proposed hypothesis of connection and refused the claim for WWP.

An appeal was made to the Federal Court.

Court’s consideration of relevant law

The appeal centred on the Tribunal’s understanding and applications of ss120(1) and (3) of the Act.

The Court noted s120 (1) requires the Commission to determine the death was war caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination".

Section120 (3)then provides for one circumstance in which the Commission is obliged to find there is “no sufficient ground” for the purposes of s120 (1):

After consideration of the whole of the material before it, [the Commission] is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Section120 (3) effectively prescribes a circumstance in which satisfaction beyond reasonable doubt for the purpose of s120 (1) is deemed to have been established (and the causal connection deemed not to exist).  In Bushell v Repatriation Commission [1992] HCA 47, Mason CJ, Deane and McHughJJ (at 413-414) described the limited but important effect of s120 (3):

Subsection (3) is concerned with whether “the material” raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material

The material will raise a reasonable hypothesis within the meaning of s120 (3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.

The Court referred to the cases of East v Repatriation Commission [1987] FCA 242, and the commentary of the Veterans’ Review Board in Re Stacey, which indentified what subsequently became the accepted construction of the threshold required by the phrase “does not raise a reasonable hypothesis connecting” in s120(3). The Board observed that the relevant hypothesis must “find some support” in the material and that the material must “point to, and not merely leave open” the hypothesis relied upon.

In Bushell, the High Court recognised the difficulties for the Commission in determining whether, on the basis of medical and scientific information and opinion, facts raised by a veteran supported a hypothesis connecting service with injury, disease or death. It was after Bushell; in 1994 that s120A was introduced to provide the necessary basis for a finding that a hypothesis was ‘reasonable’ in a medical sense.

The Court concluded that in its current form the Act requires the decision maker to undertake a process which parliament intends to be beneficial to applicants. The Court noted the scheme imposes particular processes and standards of proof to establish the requisite connection.

Identifying the hypothesis

The Court noted a hypothesis is no more than an explanation of an ultimate fact: Repatriation Commission v Stares. In the present case the ultimate fact is Mr Forrester’s death from an aortic aneurysm. The explanation for that death is that Mr Forrester commenced drinking heavily during his operational service in Vietnam as a result of stressors during service.

The Deledio steps

The first step in Deledio, requires the Tribunal to form a view or opinion about the material before it, and a characterisation of that material as “pointing to” or “supporting” the hypothesis advanced, involves some level of factual assessment.

In Stares (pre Deledio case) the Full Court held that assuming a fact in that case, the veteran started his heavy drinking during war service - was permissible at what is now identified as the first stage of the Deledio approach. As noted in Byrnes:

By saying that “the material must point to some fact of facts” their honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion.

The approach of asking whether the material points to or supports a hypothesis, has been held to require more than that the material before the decision maker leaves the hypothesis open as a possibility. A possibility of connection with service and death is not enough: Repatriation Commission v Bey [1997] FCA 1347.

The Court concluded the reasonableness of a hypothesis therefore has two aspects: a medical or scientific aspect and a factual aspect. It said:

One looks to the factual circumstances relating to the particular veteran and the other looks to the medical basis for what is factually asserted. Since the introduction of s120A consideration of these aspects has become somewhat separated. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP upholds it.

Tribunal’s decision

The Tribunal rejected Mrs Forrester’s claim at the first step of the Deledio process.

The Court noted the following conclusions of the Tribunal:

[34] Having considered all of the material before us we determine that it does not point to a hypothesis connecting Mr Forrester’s death from aortic aneurysm to his operational service.

[35] The material before us does not point to or support the hypothesis that Mr Forrester increased his consumption of alcohol on an ongoing basis as a result of all or any events said to have caused him particular stress. The evidence of Mrs Forrester, Ms Swan and Mr Swan indicates that there was friction between Mr Forrester and his superior officer and that he found some of the tasks he was required to undertake as part of his duties to be distressing. This material also indicates that he was angry as a result of events which occurred during his operational service. The material does not point to any connection between the soldier firing his weapon in the vicinity of Mr Forrester and Mr Forrester’s consumption of alcohol. There is no material which points to any change in Mr Forrester’s drinking habits as a result of all or any of these events.

[36] The hypothesis put forward links particular events in Vietnam with a substantial increase in Mr Forrester’s alcohol consumption and subsequent hypertension. This hypothesis must be considered in the light of all of the material before us. On this basis the linking of the hypertension with the particular events of the operational service is too remote and too tenuous.

Applicant’s case

There were three questions of law raised by the applicant:

  1. In the circumstances, there was only one conclusion available to the Tribunal at the first Deledio step: namely that  the whole of the material did point to, or support, the hypothesis relied upon.
  2. It was also not open to the Tribunal to find that the linking of the hypertension with the particular events in Vietnam was “too remote and too tenuous”
  3. The Tribunal’s finding at [72] of its reasons was inconsistent with its conclusion that the material did not point to or support the hypothesis relied on by Mrs Forrester.

Court’s consideration of the applicant’s arguments

The first argument

Centred on the inference the Tribunal should have drawn from the whole of the material. The applicant submitted an inference was available that Mr Forrester’s increased consumption of alcohol had been caused by the circumstances of service because the material before the Tribunal revealed: He was a social drinker before operational service; upon his return from operational service he was drinking every day and was a heavy drinker of alcohol; the veteran’s drinking habits upon his return from Vietnam became a cause of friction between him and the applicant.

The Court noted the Tribunal correctly used and applied the language of the first step in Deledio to the material before it, and briefly discussed the particular events relied on for the hypothesis. The Tribunal concluded there was no link between these events and the increase in Mr Forrester’s alcohol consumption. These conclusions are based on what the Tribunal identified as the most pertinent material before it. Although its conclusion could have been explained in more detail, the conclusion was open to the Tribunal on the material before it to which it referred.

The Court noted at [48]

Where a Tribunal is applying a statutory expression (here, s120(3), as construed in Deledio) to the evidence or material before it, there will be no error of law in the conclusion or determination reached if it is reasonably possible to arrive at different conclusions or determinations; see Vetter 202CLR 439 at 451 per Gleeson CJ, Gummow and Callinan JJ and the authorities there referred to. An error of law ( and therefore a question of law about the orders and decision made by the Tribunal) will arise if on the facts only one conclusion was open. This in turn requires characterisations at the level of perversity, irrationality or illogicality to be applied to the Tribunal’s reasoning and factual conclusion.

The Court considered the conclusion reached by the Tribunal was of several reasonably open to it on the material. The Court also noted that what emerges from  the reasons of the Tribunal is that the particular events relied upon in the hypothesis as “stressors” was what led the Tribunal to the conclusion that the material before it did not point to or support a hypothesis that connected those events with any increase in drinking.

The second argument

This relied on the Full Court’s decision in Bull v Repatriation Commission. The applicant submitted that by using the phrase “too remote and too tenuous”, the Tribunal misdirected itself because that characterisation according to Bull, was reserved for hypotheses that were fanciful or irrational.

The terms “too tenuous” or “remote” are orthodox terms to use in this context. The Court considered these terms were not the same as irrationality, but rather suggests a different problem with a  causal link between war service and the veteran’s death.

The Court noted:[65]

It is important to recall that the hypothesis in Mr Forrester’s case sought to link, in whole or in part, five particular events in Vietnam with the change in Mr Forrester’s drinking habits. That is why [40] of  Bull , even if it could be taken as some kind of general endorsement for the purposes of s120(3) of hypotheses of the kind with which it deals ( and I do not consider it could be so taken), does not assist the resolution of the question of law in the present case. In the present case, what the Tribunal was saying at [69] was too remote or tenuous was, in its own words, the link between “ particular events of operational service” relied on by the applicant, and Mr Forrester’s alcohol consumption and hypertension. That conclusion was open to it and no misunderstanding of s120(3) is disclosed by that conclusion.

The third argument

Whether the Tribunal’s reasons at [72] is inconsistent with its conclusions on s120(3).

We would have determined that the hypothesis put forward is consistent with the templates in these statements.

Firstly it was put that in relation to this sentence the Tribunal’s reasoning at step 3 of the Deledio test; namely, that a decision maker will find a hypothesis to be reasonable if it fits, that is to say, is consistent with the template’ to be found in the SoP.

We would not have been satisfied beyond a reasonable doubt that Mr Forrester’s death was not war caused.

Secondly it was contended that the above sentence was the Tribunal’s reasoning at step 4 of Deledio; namely the fact finding stage, where the decision maker determines if it is satisfied beyond reasonable doubt that the death was not war caused.

It was submitted by the applicant that a hypothesis cannot be found to be inconsistent with the template of a SoP if a Tribunal has already found the material before it does not point to or support the hypothesis.

The Court noted that at first reading an inconsistency does seem apparent.

The Tribunal appears to be saying at [72] that it would have found first that the Sop upheld the hypothesis and second, that, insofar as the s120(1) exercise was concerned, it would have been obliged to find Mr Forrester’s death was a war caused. Yet on the least demanding test – whether the whole of the material pointed to or supported the hypothesis that Mr Forrester’s death was connected to his increased consumption of alcohol and hypertension because of what he experienced  during his service in Vietnam – it found adversely to Mr Forrester.

The Court considered although it may not amount to fact finding, the first step in Deledio has a factual element particular to the material before the decision maker about the veteran. This is an integral aspect of determining the reasonableness of the asserted hypothesis. It involves a different comparison to the third step, and centres much more on the specific factual material relied on by the veteran. The Court considered that the different exercises involved mean that the decision maker could reach a conclusion adverse to a veteran on the first step, and assuming against itself and moving to the following steps – a conclusion favourable to the veteran at the third step. That is because they are distinct aspects of reasonableness.

In relation to the Tribunal having determined that Mrs Forrester’s application failed because the material before the Tribunal did not point to or support the hypothesis advanced, the Court said at [79]:

The Tribunal was acting out of an abundance of caution and indicating there would have been no obstacles to the claim to be accepted. The brevity with which this part of its reasons is expressed has given rise to the question over what is meant.

The Court concluded that read fairly and in context this last sentence is no more than a recognition by the Tribunal of the effect of the reverse standard of proof in s120(1). The Court went on to say it is important to recall that the Tribunal was considering what it might have found, had its conclusion on the first Deledio step been different. Contrary to the applicant’s characterisation it is not engaging in fact finding in these paragraphs.

Decision

None of the questions of law in the appeal were answered in favour of the applicant and the appeal was dismissed.

Editorial note

This decision emphasises the need to evaluate the reasonableness of an asserted  hypothesis of connection between operational service and the claimed injury, disease or death.  It also highlights the potential risk resulting from of a decision-maker working through the whole Deledio process out of an abundance of caution, even where the decision-maker has reached an adverse conclusion on the first or second stage of that process.

All Practice Notes