Wall v Repatriation Commission

[2019] FCA 1838

Summary of practice note

COURT	Federal Court, Victoria
JUDGE	Mortimer, J
DATE OF DECISION	8 November 2019
DECISION	The appeal was dismissed
ISSUES	Whether Tribunal erred in finding material did not raise reasonable hypothesis

Facts

The applicant, Mr Wall served with the Royal Australian Navy (RAN) for approximately eight years from 1964 until 1972 and rendered 11 days of operational service in Vietnam in 1968. Mr Wall made a claim for disability pension in respect of his primary optic atrophy (left) and major depressive disorder. On 25 November 2016, the Veterans’ Review Board affirmed the Repatriation Commission’s decision that these conditions were not war-caused. Mr Wall appealed to the Administrative Appeals Tribunal (the Tribunal). On 7 June 2018, the Tribunal decided to affirm the Repatriation Commission’s decision.

The issue before the Tribunal

The issues for determination were whether the claimed conditions of primary optic atrophy - left and major depressive disorder arose out of or were attributable to any of Mr Wall’s eligible war service.

In respect of Mr Wall’s eye condition, the Tribunal went onto note:

Where there is no SoP for a claimed condition, I must form an opinion with regard to the whole of the material before me. Allsop J has noted in Cameron[12] at [42] that the distinction between forming an opinion about the existence or otherwise of a reasonable hypothesis, and impermissible fact finding, is often a fine line to tread:

‘The dividing line between impermissible fact finding and permissible (indeed mandated) assessment of all the material, weighing it and concluding whether or not, as a whole, it points to the posited reasonable hypothesis, is not necessarily easy. The characterisation of Dr Burns’ views as assertions may be seen to be part of this weighing process of all the material. On the other hand, there is force in the applicant’s submissions that if the medical opinion is, in terms, in accordance with the hypothesis, to conclude that the hypothesis is unreasonable involves a finding that the medical opinion is without basis. I have not found this distinction easy to resolve.

The applicant’s submission before the Tribunal  

Before the Tribunal, Mr Wall submitted that his eye condition was connected with his war service on the following basis:

1. He first noticed a rapid deterioration of his vision during an 11-day period of operational service on HMAS Stuart between 25 January and 5 February 1968. He became aware of this deterioration when unable to facially recognise colleagues on adjoining ships during refuelling or replenishment, something he previously had no difficulty with;
2. Optic atrophy in his left eye was caused by exposure to an unspecified ‘environmental influence or infection,’ during that 11-day operational tour;
3. He reported the rapid deterioration in his vision approximately two weeks later in Hong Kong, electing not to do so during an intervening nine day stop in Singapore, as he did not wish to appear alarmist and thought his vision problems may have been temporary;
4. After HMAS Stuart’s arrival in Hong Kong on 17 February 1968, he reported problems with his vision and was referred by a member of the ship’s medical staff to an eye specialist in Hong Kong;
5. Tests undertaken by the Hong Kong specialist confirmed the problem was solely in Mr  Wall ’s left eye and he was provided with spectacles that day; and
6. In the alternative, Mr Wall contends he did not receive appropriate medical treatment for his left eye condition.

In relation to his depressive disorder, Mr Wall submitted that he developed depression between his ‘1968 tour to Vietnam and the surgery performed by Prof Bradley.’ He identifies a service medical record dated 20 November 1969, which records him suffering anxiety and depression. He submits that he has ‘continued to suffer ongoing chronic depression,’ requiring referral to a psychiatrist. Mr Wall contends that his mental health problems relate to ‘the emotional distress caused by the optic nerve damage’ and the devastating impact his eye condition and the loss of smell resulting from surgery in July 1970 had on his naval career.

The Tribunal’s consideration

In reaching a conclusion, the Tribunal noted:

The material points to a possible onset of optic atrophy in Mr Wall’s left eye in January 1969, approximately a year after the brief period of operational service he relies upon. By 5 June 1970, impairment of conduction in the lower half of Mr Wall’s left optic nerve had been diagnosed and surgery performed soon after to explore what was suspected to be a cancerous cause.

The surgery revealed existing atrophy of Mr Wall’s left optic nerve, but not a cause for it. In relation to cause, the material before me points in many possible directions. What it doesn’t do, however, is raise facts that point to a connexion between Mr Wall’s left optic atrophy and that 11-day period of operational service on HMAS Stuart some 50 years ago.

The material also does not point to other than appropriate clinical responses and management following Mr Wall ’s presentation with eye problems in January 1969

The Tribunal found that no reasonable hypothesis had been raised connecting Mr Wall’s left optic atrophy with his operational service. The Tribunal also found that the whole of the material before it did not support Mr Wall’s alternative hypothesis that he did not receive appropriate medical treatment.

As the Tribunal did not making a finding that Mr Wall’s eye condition was war-caused, it noted that it was unnecessary to consider whether the depressive order claimed by Mr  Wall  was war-caused.

Mr Wall’s argument to the court

Before the Court, Counsel for Mr Wall argued that the Tribunal erred in finding the material did not raise a reasonable hypothesis. Specifically, it was argued that the Tribunal did not examine all (or the whole) of the material before it but ‘embarked on a process of identifying in the material all the material that it considered pointed away from the hypothesis.’ Secondly, it was argued that the Tribunal ‘crossed the boundary from factual assessment into impermissible weighing and evaluation in arriving at its decision’.

The Court’s consideration

Justice Mortimer noted that the authorities are clear that the Tribunal’s task is to consider whether, on the whole of the evidence, a reasonable hypothesis is raised connecting a veteran’s injury or disease with her or his operational service.  Her Honour noted the applicant’s reliance on the Full Court’s decision in Hardman v Repatriation Commission [2005] FCAFC 83 for the proposition that:

It is enough if the [asserted] hypothesis is available on certain of the facts before the decision-maker.

Her Honour considered:

Hardman was an occasion where the Full Court explained that the terms of s 120(3) would generally have far less work to do, after the introduction of s 120A into the VE Act, and cautioned against too rigid an adherence to the “steps” in Deledio as a substitute for the terms of the legislation itself: see [32]. Those observations, with respect, can readily be accepted.

Here, however, there was the less usual situation of an injury or disease for which there was no SoP, and thus the reasonableness of the asserted hypothesis, if raised by all of the evidence, was a question of fact for the Tribunal. That meant that s 120(3) had a material role to play, and the applicant did not submit to the contrary.

In my opinion, the circumstances in Hardman are distinguishable from the present circumstances, for the following reasons:

1. The Full Court’s decision turned very much on its interpretation of the Tribunal’s reasons. That makes its finding specific to the case before it.
2. If the distinctions in [26] of the Full Court’s reasons are applied to the present Tribunal’s reasons, in my opinion, the present Tribunal’s reasons are very much in the first category rather than the second. The Tribunal found, as I have explained above, that the evidence (or the facts) did not raise the proposed hypothesis. It then also found (at [96] of its reasons) that in any event, the proposed hypothesis was too tenuous and therefore not reasonable.
3. In Hardman, as the Full Court’s reasons at [28] made clear, the Tribunal had as a matter of fact accepted the principle concerning the point in time at which the onset of depressive disorder should be assessed, based on the display of symptoms, and there was evidence which bore out that Mr Hardman had displayed those symptoms at a point in time which brought him within the period of time required by the SoP. It was in those circumstances that the Full Court found it was erroneous for the Tribunal to have rejected the asserted hypothesis. In other words, there could be no debate that by a combination of the expert and lay evidence the hypothesis was raised, and to reject it the Tribunal had to engage in fact-finding, preferring some facts to others. That was not the situation facing the Tribunal in the applicant’s case, and not what it did.

The applicant also submitted that because there was expert opinion to the effect that the asserted hypothesis was reasonable, it was not open to the Tribunal to conclude the hypothesis was not “raised” on the material, or that the material did not “point” to it. Her Honour rejected this submission and accepted that of the respondent that:

It should not be inferred that the Tribunal rejected Associate Professor White’s evidence that one of the two causes of the Applicant’s optic atrophy that he thought “more likely” had an onset during the Applicant’s operational service in early 1968: cf AS [20]. The statement at TR [90] that the “material points to a possible onset of optic atrophy in Mr Wall’s left eye in January 1969” does not indicate that the Tribunal found that was the date of onset; it is clear from the Tribunal’s language that it merely found that was a possibility pointed to by the material. It was the existence of multiple possible causal explanations for the Applicant’s left optic atrophy that led the Tribunal to conclude that the material as a whole did not raise a reasonable hypothesis: TR [90] and [95]. That does not mean that the Tribunal discounted or rejected Associate Professor White’s evidence by preferring other evidence, simply that the Tribunal properly undertook the statutory task of determining whether a reasonable hypothesis was raised having regard to all of the material, including that which pointed in a different direction to the part of Associate Professor White’s evidence relied upon by the Applicant.

Her Honour went on to note:

The difficulty here was that the Tribunal considered, on all of the material, that the way Associate Professor White’s expert opinion relied on the (bare) account of the applicant about his experience of a vision disturbance during his 11 days of operational service in Vietnam was too tenuous, and was not sufficient to point to a reasonable hypothesis. That was a judgment for the Tribunal to make.

The Tribunal’s reasons

Justice Mortimer also considered that the Tribunal’s reasons were not incomplete or inaccurate, as argued by the applicant. Her Honour noted that:

…the Tribunal’s task was not to “record” all the evidence before it. Its task was to set out its findings of fact and the evidence on which they were based.

...The Tribunal’s reasons should be read as identifying the matters it saw as significant, and on which it based its decision. Provided the Tribunal understood its statutory task (which I consider it did) and applied the evidence before it to that task in a way which was open to it (which I consider it did), then the fact that it chose not to refer to certain evidence, or not to include certain evidence in its reasons is not, without more, indicative of any legal error, and certainly not a misconception of its task…

The Court’s Decision

The appeal was dismissed.

Editorial note

The court’s decision in Wall provides useful guidance for decision-makers on the approach to be taken in cases where there is no relevant Statement of Principles (SoP) to be applied.

In reasonable hypothesis cases, the four-step Deledio processes apply for a case if there is no SoP for the claimed injury, disease or death. If at step two, no SoP is identified, the decision-maker moves to step three in which the hypothesis is tested for reasonableness.

Instead of having to meet a factor in a SoP, the Bushell standard of medical evidence applies. That is, it would ‘be rare where it can be said that a hypothesis … is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge’. 

The East & Bey test of a reasonable hypothesis applies: a reasonable hypothesis is more than a mere possibility, consistent with known facts, not too tenuous, remote, fanciful, impossible, or speculative. If the hypothesis is reasonable, the decision maker moves to step four to decide whether the hypothesis has been disproved beyond reasonable doubt. There is no fact-finding until step four.

However, as emphasised by Brennan CJ in Owens, ‘it is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to the whole of the material …’

In Wall the Court found that the Tribunal had properly discharged its statutory duty under section 120(3) of the VEA.  It had not become involved in resolving conflicts in evidence, nor had it gone outside the process of forming an opinion as to whether, on the material before it, there was a hypothesis which was reasonable.  As such, there was no error of law.

Additionally, the Court’s decision serves as a useful reminder to decision makers that in preparing reasons for a decision it is not necessary to “record” all of the evidence before them. Rather, decision makers must set out their findings of fact and the evidence on which they were based.

See further:

• Bushell v Repatriation Commission (1992) 175 CLR 408, per Mason CJ, Deane & McHugh JJ.
• East v Repatriation Commission (1987) 16 FCR 517, 74 ALR 518, 6 AAR 492
• Repatriation Commission v Bey [1997] FCA 1347, (1997) 149 ALR 721, 47 ALD 481, 26 AAR 298
• Repatriation Commission v Owens S147/1995 [1996] HCATrans 290