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Brew v Repatriation Commission [1999] FCA 1246 (10 September 1999)

Last Updated: 16 September 1999

FEDERAL COURT OF AUSTRALIA

Brew v Repatriation Commission [1999] FCA 1246

VETERAN'S ENTITLEMENTS - war caused injury or disease - connection with eligible war service of the veteran - whether decision not to seek treatment for varicose veins because of workplace culture constitutes "inability to obtain clinical management for varicose veins" for the purposes of the Statement of Principles

WORDS AND PHRASES - "inability"

Veterans Entitlements Act 1986 (Cth) - ss8(1)(e), 9(1)(e)(ii), 13, 14, 15 19(3)(a)(i), 120(4), 120(6), 120B and 120B(3)

Administrative Appeals Tribunal Act 1975 (Cth) s44(1)

Bushell v Repatriation Commission (1992) 175 CLR 408 - cited

Noble v Repatriation Commission [1997] FCA 1159 - cited

Baxter Healthcare v Collector-General of Customs (1997) 72 FCR 467- referred

BREW v REPATRIATION COMMISSION

VG 246 of 1999

JUDGE: HEEREY, MERKEL AND MANSFIELD JJ

PLACE: MELBOURNE

DATE: 10 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY / VG 246 OF 1999
BETWEEN: / SOPHY BREW
Appellant
AND: / REPATRIATION COMMISSION
Respondent
JUDGE: / HEEREY, MERKEL AND MANSFIELD JJ
DATE OF ORDER: / 10 SEPTEMBER 1999
WHERE MADE: / MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's taxed costs of the appeal.

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 / V 246 OF 1999
BETWEEN: / SOPHY BREW
Applicant
AND: / REPATRIATION COMMISSION
Respondent
JUDGE: / HEEREY, MERKEL and MANSFIELD JJ
DATE: / 10 SEPTEMBER 1999
PLACE: / MELBOURNE

REASONS FOR JUDGMENT

HEEREY J:

1 I have had the advantage of reading in draft the reasons of Merkel J.

2 With respect, I am not sure that the issue here can be resolved in terms of a subjective/objective analysis. Sundberg J treated the critical question as one of choice. In his Honour's opinion, a person who chooses not to obtain appropriate clinical management has no relevant "inability". This was consistent with the approach taken by the AAT.

3 However "inability" can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force. Thus a child might say "I am unable to go to the pictures because my mother won't let me". (Probably the child would use the more vernacular term "can't", but the meaning remains the same.) In the sense discussed, a person may have an inability to do something notwithstanding that he or she makes a free choice. Clearly the factor operating on the person's choice would have to be a substantial one before it could be said there was "inability". How substantial is a question of fact, and not capable of definition a priori. Since all agree the present legislation is to be given a beneficial construction, it is appropriate to give "inability" the wider meaning discussed.

4 The critical parts of the AAT's reasoning are pars 40, 41 and 42.

5 Paragraph 40 contrasts the position of, on the one hand, soldiers in battle conditions without medical officers and, on the other hand, the appellant whose very workplace is a hospital, which includes a staff clinic. According to the AAT, the former is a case of "inability", the latter is not. If doctors are present, you are "able" to obtain appropriate clinical management. Therefore there cannot be inability, whatever your reasons for not seeking treatment.

6 Paragraph 41 deals with the central argument of the appellant's case. The last sentence disposes of that argument with a proposition of law which is the AAT's reading of cl 1(e) of the Statement of Principles. If you choose not to have medical treatment by reason of apprehension of some particular consequence there can be no "inability".

7 Paragraph 42 reinforces this reasoning by allowing an exception only where "overwhelming psychological or emotional incapacity ... prohibit(s)" a person from obtaining appropriate clinical management. In other words, unless you are stopped by something "overwhelming", there is no inability. The concept of a choice, freely made yet made because of some serious adverse consequence, is excluded.

8 The authorities referred to by Merkel J, which warn against an excessively pedantic approach to judicial review, do not apply to cases like the present where the decision-maker has applied an incorrect legal standard.

9 For someone like the appellant, a member of the Armed Services working in a military establishment in wartime, a group culture against seeking medical treatment could operate as a powerful disincentive. Whether that amounted to "inability" was something the appellant was entitled to have considered on the merits.

10 It is accepted that the argument in par 43 was not put to the appellant at the hearing. As a matter of procedural fairness, this argument raises matters which would need to be examined further. For example, Dr Myers said that treatment of the appellant's condition according to the medical techniques then in use would have involved time off, injections and possibly an operation. So the hypothesis that the appellant could have simply gone to a local doctor in her spare time without the knowledge of her fellow nurses might well turn out to be implausible.

11 In my opinion the appeal should be allowed and the matter remitted to the AAT differently constituted.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey .

Associate:

Dated: 10 September 1999

REASONS FOR JUDGMENT

MERKEL J

Introduction

12 The appellant was in receipt of a pension under the Veterans Entitlements Act 1986 (Cth) ("the Act"). She applied for an increase in the amount of the pension on the ground that the varicose veins from which she suffered were "war-caused": see ss14 and 15 of the Act. The respondent's decision to refuse the application was affirmed by the Veteran's Review Board whose decision was affirmed by the Administrative Appeals Tribunal ("the AAT"). The appellant appealed to the Court pursuant to s44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal was dismissed with costs by the learned primary Judge (SundbergJ). The appellant has appealed from the judgment of SundbergJ and seeks an order that the varicose veins from which the appellant suffered were war-caused alternatively, that the matter be remitted to a differently constituted AAT for determination according to law.

The facts

13 The evidence before the Tribunal was summarised by SundbergJ as follows:

"The essential facts were not in dispute before the Tribunal. Evidence was given by the applicant and by a vascular surgeon who had examined her. The applicant was born on 23 July 1922. Soon after leaving school she began working at the Maribyrnong Munitions factory. She remained there for two and a half years. Her work involved assembling parts for mortars and explosive cylinders. She stood for most of the time, mainly in one spot. Her legs used to ache, but she ignored the pain. She did not seek medical treatment. On 27 May 1944 the applicant enlisted in the Australian Army Women's Medical Service. She remained in that service as a ward orderly until her discharge on 31 August 1945. Her initial training, which she described as `rookie training', was in Ballarat. The work involved marching, and drills such as learning to stand at attention. While at Ballarat she experienced a recurrence of the leg pain. In July 19[4]4 she was transferred to the hospital at Bonegilla near Wodonga in North Eastern Victoria, where she served until her discharge. She described her work there as that of a `dogsbody'. She cleaned the wards and fed and washed the patients. Her legs continued to ache throughout her service. She regarded it as part and parcel of service life. She took no notice of the pain.

The applicant said that the culture among personnel at Bonegilla was not to complain because it was assumed that a greater purpose was to be achieved by assisting those who were ill. She was seeking an overseas posting, and believed that her prospects of obtaining such a posting would be harmed if she went to a doctor for treatment of her leg. Those who sought medical treatment, especially for matters that were thought trivial, were subjected to ridicule by their colleagues. Some workers had returned to ward duties in tears after having been rebuked by ward sisters for seeking treatment. As a result of this, Colonel Wonderley, the medical officer in charge, took over the management of the staff clinic. The applicant said he was a `fatherly gentleman' with whom she worked a lot. Nonetheless she did not report her leg pains to him `because it was not the done thing and you didn't do it unless you were dead on your feet'. She said that if she had been aware that she had varicose veins she would have reported it. In cross-examination the applicant agreed that she had chosen not to report her leg pains or obtain treatment.

Dr Kenneth Myers, a vascular surgeon, examined the applicant in November 1997. He was of the view that the applicant had had varicose veins from the time she was employed at the munitions factory. He regarded her as being `hardy', and on present day standards would have expected her to have gone to a doctor for treatment. He was of the opinion that having regard to the conditions of her service, it would have been impossible for her to justify taking the time off to manage her condition, either by injections or by an operation, which would have been the appropriate clinical management. Dr Myers said that treatment has been available for varicose veins since the 1930s in the form of surgery, injections and support stockings. Modern day technology has assisted in the diagnosis of varicose veins, particularly by the use of ultrasound."

The legislation

14 The appellant was entitled to make her claim for an increased pension and to have the respondent determine her entitlement to receive that pension in respect of any incapacity she suffered from the varicose veins as a "war-caused injury or war-caused disease": see ss13, 14 and 19(3)(a)(i) of the Act. The matter was contested before the AAT on the basis that the relevant injury or disease (ie the varicose veins) suffered by the appellant was suffered or contracted before the commencement of the eligible war service rendered by her but was contributed to in a material degree by, or was aggravated by, her eligible war service: see s9(1)(e)(ii) of the Act. As the appellant's service was not operational service her claim was to be determined on the standard of proof provided for by s120(4) which required the Commission, in making any determination or decision on her claim, to "decide the matter to its reasonable satisfaction". Section120(6) provided that neither the appellant nor the respondent was to bear any onus of proving any matter that is or might be relevant to the determination of the claim.

15 The note to s120(4) provides that the sub-section "is affected by section 120B". Section 5U(b) provides that the note is to be taken as part of the sub-section.

16 Section120B(3) relevantly provides:

"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."

17 In 1995 the Repatriation Medical Authority determined under s196B(3) a Statement of Principles concerning varicose veins. Clause 1 sets out the factors that must exist before it can be said that, on the balance of probabilities, varicose veins are, or death from varicose veins is, connected with the circumstance of service. They are

(a) having congestive cardiac failure with increased venous pressure before the clinical onset of varicose veins; or

(b) having thrombophlebitis of the lower limb or pelvic veins before the clinical onset of varicose veins; or

(d) having been pregnant before the clinical onset of varicose veins; or

(e) inability to obtain appropriate clinical management for varicose veins."

Clauses 2 and 3 are as follows:

"2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (e) must be related to any service rendered by a person.