FCA 756
|COURT||Federal Court, Victoria|
|DATE OF DECISION||28 June 2016|
|DECISION||The appeal was dismissed|
|ISSUES||Reasonable hypothesis test – no relevant Statement of Principles – chronic irritable cough syndrome – exposure to insecticides|
The applicant, Mr George Iliopoulos, served in the Australian Army from 1970 to 1972 and had operational service in Vietnam between 12 May 1971 and 21 October 1971. In 2012 Mr Iliopoulos lodged an application for increase in his disability pension and claimed he suffered from bronchial asthma and skin rashes. The respondent decided that bronchial asthma was not related to Mr Iliopoulos’ service and there was no medical condition related to the skin rashes. The Veterans’ Review Board (VRB) affirmed the decision under review but increased disability pension to 20% of the general rate. The Administrative Appeals Tribunal (the Tribunal) affirmed the VRB’s decision. Mr Iliopoulos appealed to the Federal Court.
Grounds of appeal
The appeal centred on the Tribunal’s conclusion about an hypothesis concerning the connection between a chronic irritable cough syndrome suffered by Mr Iliopoulos and his Vietnam service. As there was no applicable Statement of Principles (SoP) relating to chronic irritable cough syndrome, the claim was determined under s120 of the VEA by reference to the decided cases prior to the introduction of s120A.
The Court's consideration
Grounds of appeal relating to the Tribunal’s conclusion of an absence of a reasonable hypothesis within the meaning of s120(3) was not open on the evidence or was otherwise incorrectly reached in light of the evidence of Dr Burdon
Section 120(1) required the Commission to determine that the injury or disease claimed by Mr Iliopoulos relating to his operational service was a war-caused disease unless it was satisfied beyond reasonable doubt that there were no sufficient grounds for that determination. Section 120(3) provides that the Commission would be satisfied beyond reasonable doubt if it was “of the opinion that the material before it [did] not raise a reasonable hypothesis connecting the injury” or disease with the circumstances of the particular service rendered by Mr Iliopoulos. In Bushell v Repatriation Commission (1992) 175 CLR 408 Mason CJ, Dean and McHugh JJ said at page 414 it would be a rare case that an hypothesis would be considered unreasonable when put forward by a medical practitioner who was eminent in the relevant field of knowledge. In that context, Mr Iliopoulos relied on the expect evidence of Dr Burdon and the absence of contradicting expert evidence.
The Court indicated the Tribunal was not bound to accept the evidence of Dr Burdon, but it was bound to consider the evidence, including the evidence of Dr Burdon, for itself, relying on Bushell, Levier v Repatriation Commission  FCR 1365 and Repatriation Commission v Bey (1997) 79 FCR 364. The Court considered the Tribunal correctly took into account Dr Burdon’s opinion that a causative connection between Mr Iliopoulos’ condition and operational service was a possibility, and correctly took into account Dr Burdon’s reasons for that opinion, but formed its own contrary conclusion for the reasons it gave. The Court stated that the Tribunal undertook the task that it was required by statute to undertake; namely to decide for itself whether the material before the Tribunal raised a reasonably hypothesis of connection between the injury in question and the particular service rendered by Mr Iliopoulos. The opinion of the Tribunal was that the material before it, including the expert opinion of Dr Burdon, did not raise a reasonable hypothesis of connection.
Grounds of appeal relating to the relevance of the Tribunal’s reference to the “eminence” of Dr Burdon
The Court noted the Tribunal’s view about the eminence of Dr Burdon did not result in the Tribunal failing to take it into account. The Court stated that the evidence of an expert in the relevant field of medical science was considered by the Tribunal.
Grounds of appeal that the Tribunal had erred by relying on the lack of epidemiological evidence, or had relied upon the lack of evidence of other service personnel having developed chronic irritable cough syndrome after exposure to pesticides or herbicides in Vietnam
The Court noted the Tribunal was not saying that there needed to be an epidemiological study, or evidence of other veterans suffering the same condition, to find that an hypothesis of connection was reasonable – rather, it was explaining why it was not satisfied to adopt for itself the opinion and reasons given by Dr Burdon. The Court considered the Tribunal’s reference to the absence of other evidence was not imposing an evidentiary burden upon Mr Iliopoulos or sating that such evidence was required, but was an explanation why other evidence might have required a different conclusion. The Tribunal did however have other expert evidence before it from Professor Holmes which, although not contradicting the evidence of Dr Burdon, related to the Tribunal reaching a different conclusion.
Ground of appeal relating to the failure to be informed of Tribunal’s use of the SoP for Neurodermatitis
The Court stated the Tribunal did not err by considering the SoP for irritant contact dermatitis. The SoP had been referred to by the VRB in its reasons for decision and formed part of the material before the Tribunal. The Tribunal considered the SoP had not been satisfied, and also considered the alternative scenario, as agreed between the parties, that the SoP was not applicable to his condition.
Ground of appeal as to whether the Tribunal erred in holding that it could not assume the fact of connection between service and a condition
The Court considered that s120 requires the decision-maker to make a finding about connection and not to assume as a fact the finding which it must make.
Ground of appeal as to whether the Tribunal applied the wrong standard of proof in determining the date of clinical onset of chronic irritable cough syndrome
The Court noted the reason the claim failed was not because there was no hypothesis (as contemplated by this ground) but because of the Tribunal’s conclusion that the hypothesis was not reasonable.
Ground of appeal as to whether the Tribunal misconstrued the expression “reasonable hypothesis” in s120(3) of the VEA, when read with s9(1)(e), by failing to determine whether the material pointed to an hypothesis that chronic irritable cough syndrome was aggravated by exposure to irritants during operational service
The Court indicated that the issue before the Tribunal had been whether the war service of Mr Iliopoulos in Vietnam had caused his condition. There was no material before the Tribunal in this case capable of supporting the alternative hypothesis of aggravation.
The Court's Decision
The appeal was dismissed.
In relation to the ground of appeal about assuming the fact of connection, the Court noted that in Byrnes v Repatriation Commission (1993) 177 CLR 564 the High Court held that an hypothesis may still be reasonable even if it assumes the occurrence or existence of a “fact”. The Tribunal considered what had been said in Byrnes did not contemplate the assumption of “the fact of connection”, following Nicholson J in Repatriation Commission v Dunn (2006) 94 ALD 97 at :
…As was the case in Byrnes at CLR 569; ALR 213-14; ALD 5-6, the hypothesis is one of connection of the veteran’s condition with the circumstances of his service. If there is an assumed fact, it cannot be the fact to which the hypothesis must be addressed; that is, the fact of connection.
The Court confirmed nothing in Byrnes suggests that the hypothesis may be determined by assuming the very fact which needs to be determined.