Heard 18 October 1988 and 24 October 1989

This appeal first came on for hearing on 18 October 1988 when the appellant appeared before us and gave evidence, and written submissions in support of his case were ut before us. An application was then made on behalf of the appellant for an adjournment of the proceedings to enable his advocate to obtain material from Australia concerning cases decided there, in which issues similar to those arising in the present case had been considered. The hearing was accordingly adjourned sine die to be brought on by notice from the appellant when he was ready to proceed.

On 20 June 1989, the material assembled was put in. It consisted of four judgments delivered by Australian Courts. Apart from drawing attention to some passages in them, the appellant's advocate made no further submissions. We found these judgments of little assistance in the resolution of the issues which fall for consideration in the present case, but we hasten to add that they contain a deal of informative and persuasive material on other matters of common interest to the two jurisdictions.

Australian decisions both on questions of fact and questions of law are of little assistance in the resolution of specific issues in New Zealand. And the main reason for that is that for nearly fifty years past the law as to Service Pensions in Australia has differed greatly from the law thereon in New Zealand. During that period from the end of the Great War until 1929 the general law as to the burden and standard of proof in civil claims - namely that a claimant bears the onus of proving his case on the balance of probabilities - applied in Australia.

Since 1929, however, there have been a series of amendments to the law, by way of statutory presumptions and other exceptions to the general law, which effected alterations to the law as to the burden and standard of proof. The state of the law at various times and the extent of such amendments are succinctly summarised in East v Repatriation Commission (1987) 74 ALR 518 at p 533, as follows:

In 1985 there was a further amendment which reversed, to some extent, the trend towards improving the position of claimants. Thereafter, before a claim could succeed, the claimant had first to satisfy the Tribunal that there was some reason to believe that there was a causal connection between the proven disability and the claimant's service in the Forces; but when the Tribunal was so satisfied, the claimant became entitled to a pension unless the Crown established beyond reasonable doubt that the hypothesis was in fact, not valid and sustainable. The situation was put thus in East's case (supra, at p 533).

There is no doubt however, that up till 1977 when the 'beyond reasonable doubt' requirement was introduced in Australia, the nature of the onus in that country was the ordinary civil onus, ie, proving the material facts on the balance of probabilities - see the judgment of the High Court of Australia (per Aickin J, with whom Gibbs CJ, Stephen and Mason JJ all agreed) in Repatriation Commission v Law (1981) 147 CLR 635 at p 643. And in New Zealand, where 'the beyond reasonable doubt' standard has never been imported into this branch of the law, that position has always obtained and still obtains - but, as will shortly be seen, it was diminished in its effect by various provisions in the War Pensions Act but only to the extent stated in those provisions.

The law in New Zealand as to the onus and burden of proof is not now and never has been as favourable to the claimant as it previously was and now is in Australia.

And there are other reasons differentiating the law in Australia from that of New Zealand: First, the provisions in the Australian legislation akin to those to be found in ss 17(3) and 18 of our War Pensions Act 1954 apply to all factes of the claim, whereas in New Zealand they are of the limited application specified in these provisions.

Secondly, the provision of the Australian legislation entitling claimants to pensions are, in terms, wider than the comparable New Zealand provisions.

Before embarking upon a review of the relevant facts and consideration of the merits of the appeal, we think it desirable to give some consideration to the legal principles as to the onus and burden of proof in war pensions cases. We consider it opportune that we should do that for several reasons.

First and foremost, most of the rules fall for consideration in the present case.

Secondly, with the new Tribunals constituted by the War pensions Amendment Act 1988 having but lately embarked upon their duties, it is well that they should have in convenient and readily accessible form an authoritative summation of the rules which the law requires them to apply in the discharge of their duties. And that is doubly important because, as we shortly shall demonstrate, they have already been given erroneous information on such matters.

Thirdly, we have found that there is abroad among people having to do with War pensions surprisingly widespread misconception as to the law, particularly as to the scope of ss 17(3) and 18 of the Act. Such misconceptions are, we feel sure, contributed to by the misleading and inaccurate short titles to both ss 17 and 18 which readily convey, particularly to lay persons on a casual reading of them, that they are of application to all facets of war pensions claims when in fact, they are of the limited application expressly stated in their texts.

The short title of the heading to s 17 is as follows:

The section in fact provides two separate presumptions, one in subs (1) and the other in subs (3). The first of them deals with medical gradings and has no affinity whatsoever with the heading. The second (subs (3)) has affinity but its text clearly shows that it is of application only to the issues of attributability or aggravation and then only in cases where the disablement or death of the claimant occurred or arose "in connection with any war or emergency".

The presumptions thus provided do not apply to questions of fact which need to be established before questions of attributability or aggravation arise and they do not apply in cases where the death or disability arose "in connection with" service other than in "any war or emergency", in other words, for instance - any by way of illustration only, if they arose in service with peace time army territorials, peace time naval reservists or air force cadets.

Subsection (3) of s 17, so far as it is relevant to the matter under discussion, provides:

The situation in respect of the heading to s 18 is, if anything, worse. That heading reads:

The section, insofar as it is relevant provides:

The section clearly applies only to the determination of the issues whether or not the death or proven disability of the member was 'attributable to ... or aggravated by his service in the forces' and not to other issues that may arise in any given case.

It follows that the dispensations from 'technicalities or legal forms or rules of evidence' of the statutory authority, 'to decide in accordance with substantial justice and the merits of the case' conferred by this subsection do not apply to the determination of all the other matters which are essential to the establishment of the claimant's case. Proof of them must be to the general standard in civil claims, namely, to the satisfaction of the Tribunal on the balance of probabilities.

Subsection (2) of s 18 commences as follows:

And those rules are set forth in paragraphs (a), (b) and (c) of the subsection. (The italics again, are ours.)

The words in italics limit the application of the rules set forth in paragraphs (a), (b) and (c) of the subsection to the provisions of subs (1). It follows that they, too, apply only on the determination of the issues of attributability - or aggravation, in any given case.

It follows that what is said in the heading to the section applies only when the issues of attributability or aggravation are under consideration and not generally as a reading of it in isolation from the texts of both its subsections would lead one to believe.

The legal situation as regards headings to sections of a statute is that they do not form part of the statute. They may, however, be looked at and considered if, and only if, the text in the section is ambiguous and then for the sole purpose of resolving the ambiguity. The legal position is stated in Shelley v LCC [1949] AC 56 at p 59 thus:

The words of ss 17(3) and 18 are clear words and admit no ambiguity. It accordingly follows that the headings to both sections are of no significance or relevance. And they are misleading. It would be a service to all having to do with War pensions and their administration if they were replaced with words not inconsonant with the texts of the sections.

Another factor which also gives rise to misconceptions as to law is a passage in a publication - an anonymous publication - entitled Instructions for the guidance of medical officers, which, has for many years past been distributed to all medical practitioners invited to examine claimants and to provide, by way of reports, expert evidence as to the disablements of such claimants and the causes of them. The passage reads:

This provision is in its first limb misleading and in its second limb totally wrong. The only reference to onus in the Act is in subs (2)(a) of s 18, which provides:

We have earlier demonstrated that the whole of s 18 was limited to the issues of attributability and aggravation. The foregoing paragraph (para (2)(a) of the section) itself restates that situation in respect of its provision as regards to onus of proof.

With regard to the second limb of the passage to effect that the Act provides that a claimant 'shall be given the benefit of any reasonable doubt', the Act provides nothing of the sort. The phrase 'reasonable doubt' has long since been enshrined in the criminal law and indeed can truly be said to be the lynch pin of it.

But it now appears in the civil law and, as we have already mentioned, presently finds a place in the law as to War pensions in Australia. In the civil law, the phrase 'beyond reasonable doubt' has been ascribed the same meaning as it has in the criminal law - see Law v Repatriation Commission (1980) 29 ALR 64 at p 74 and the cases referred to therein.

There is a reference to 'the benefit of any doubt' in subs (2)(c) of s 18 of the Act but that subsection, as we have already shown, applies only to the issues of attributability and aggravation, and not generally. In any event, 'beyond reasonable doubt' is a concept with a special meaning of its own. And for present purposes it suffices to say that the Act does not make any such provision to it as stated in the publication.

Section 5A of the War Pensions Amendment Act 1988 constituted a body corporate called the War pensions Advisory Board which has among its powers and functions, power '(b) To approve guidelines for the determination and assessment of war pensions to be used by medical examiners and claims panels'. A claims panel is 'a district claims panel established under section 15' of the same Act.

In a purported exercise of this power, the War Pensions Advisory Board has issued to the claims panel written summaries as to the law applicable to various facets of their duties, including the law on 'onus of proof and presumptions'. We have the documents before us and have considered them.

In the document issued, the texts are referred to as 'Policy Guidelines'. The Act does not refer to 'guidelines' in terms of 'policy' but as guidelines 'for the determination of war pensions to be used - by claims panels'. By whatever terms the term 'guidelines' is qualified, the guidelines cannot lawfully be different from the provisions of the statutory enactment of the law whether by statute or regulation. The claims panels are bound to act in accordance with the law and it goes without saying that the powers conferred upon the War Pensions Advisory Board do not give it power to over-ride, repeal or vary the law as enacted by Parliament or the Executive under delegated power from Parliament.

Unfortunately, the statement for guidance of the panels is at variance with the law. It makes no reference at all to the general law as to onus and standard of proof and it deals with the exceptions to it contained in subss (1) and (2) of s 18 erroneously in that it states them to be of general application.

The matter is compounded by the fact that the so called 'guidelines' do not bind the national review officers, who are empowered by the 1988 Act to review decisions of claims panels (section 15D), or the Appeal Boards. Indeed, s 5(1) does not empower the Advisory Boards to issue guidelines other than to the claims panels. Accordingly, the gilbertian situation presently obtains that the claims panels are likely to be operating under opinions as to the law issued by the Advisory Board, under the mantle of guidelines, at variance with the law of the land as interpreted and applied by this Board.

The difficulties canvassed in the previous two paragraphs are compounded by the contents of lectures given to prospective New Zealand Returned Services' Association nominees to claims panels before such were established. The text of those lectures were printed and no doubt are in the hands of such of those nominees who were subsequently appointed to the panels. Mr Mandahl, a New Zealand Returned Services' Association advocate who, over the past few years, has frequently and regularly appeared before us, courteously made available to us copies of the printed lecture notes. We regret to say, however, that they too, contain grave errors on the topic of onus and standard of proof. They, too, make no allusion to the primary general rule in civil cases on such topics, and they contain no reference whatsoever to the important limitations upon the operations of ss 17(3) and 18 which are expressly provided in those sections and to which we have earlier made reference.

The situation as to the operation of the claims panels is thus most unsatisfactory. And it is grossly unfair to the members of such panels in that some, at least, of the appeals from their decisions will be dealt with by Appeal Boards on legal principles propagated by bodies and people the views of whom they were entitled to accept and respect, in the mistaken belief that they correctly stated the law.

Other exceptions to the general law as to onus and standard of proof not referred in either the guidelines or the notes on the NZRSA lectures, are to be found in subs (2) and (5) of s 19 of the Act. Section 19(2) will be more readily explicable if we first set out the relevant provisions of s 19(1). It provides that:

Section 19(2) provides:

In practical terms, if a member of the forces proves to the civil standard of proof (a) the claimed disablement and (b) that such disablement 'occurred' whilst he was on service overseas in connection with a war or any emergency, then his disablement is deemed to be attributable to such service. The important feature of this provision is that the issue of attributability - if the prerequisites are met - is concluded without recourse to or the need for recourse to the provisions of ss 17(3) and 18.

Subsection (5) of s 19 is, in its essential elements, identical with subs (2) and we need say no more about it.

Although Mr Auld's service with the forces was in the main, overseas and in connection with the Second World War, his present claim for a pension does not fall for consideration under s 19(2). The onset of his emphysema occurred many years after his war service had concluded but he claims that it had its genesis, in part at least, in events that happened during such service and that it is accordingly attributable to such service (s 19(1)(b)).

The phrase 'is attributable to' was considered by a full court (Bowen CJ, Brennan and Lockhart JJ) of the Federal Court of Australia in Repatriation Commission v Law (1980) 31 ALR 140 at p 151, where the relevant authorities are collected and discussed. The Court expressed the following opinion (at p 151):

We respectfully concur with that statement and adopt it as our own. And we proceed to consider the instant case in the light of it.

The appellant's case is that he developed emphysema over a long period, subsequent to his discharge from the army; that whilst he was reasonably fit on his discharge, he became progressively short of breath over the years until 1977, when his condition was diagnosed at the Palmerston North Hospital, and later confirmed by Dr Malcolm H Watson. He contended that his condition was either wholly or partly caused by smoking of cigarettes over the years.

He deposed that prior to his enlistment and indeed prior to his embarkation for service overseas he had been a non-smoker; that during his overseas service, he started smoking cigarettes and in due time he became an habitual smoker. He served overseas both in North Africa and in Italy with the 22 Battalion from 7 April 1941 until April 1945, and was wounded in action in November 1942. He contends that smoking was not actively discouraged by the army establishment as it is, in the interests of health, generally discouraged today; and that to the contrary, it was tacitly encouraged; that cigarettes and tobacco were made available by the army through its canteen services at nominal cost and provided free of cost in vast quantities be welfare and patriotic agencies without disapproval and indeed with the approbation and support of the army establishment. The evidence also goes to show that in the war years the cigarette was regarded not only in the services but also generally, as a sedative, if not essential treatment for all forms of emotional reverses from mere ennui and boredom to natural fear and shock following physical injury, and that the war novel and the film invariably displayed the first recourse in aid to the injured, the wounded and indeed the emotionally disturbed serviceman was the lighted cigarette.

We are satisfied that the appellant did indeed become afflicted with emphysema. We accept also that that disablement had its genesis in his smoking over the thirty-five years preceding its ultimate diagnosis.

We accept his evidence that he did not commence smoking until he was on service overseas. There is, of course, nothing in his medical records to substantiate this but we have no hesitation in declaring him to be a witness of truth and that his evidence on the topic meets the civil standard of proof.

It can, of course be said - and said with truth - that the appellant could have at any time given up smoking and even when it became a habit or an addiction, could have, by exercise of his own will power, with or without medical or psychological help, or both, broken the habit. In our view, such considerations are irrelevant. The appellant's attitude to smoking and his conduct in its regard over the years are not in issue. By continuing to smoke after the war he infringed no law nor breached any obligation, but merely exercised his freedom of choice. It is a fact of life that he smoked as he did. And it is trite law to say that those having to do with service pensions that they have to take the subject as they find him. His personal conduct was not on trial at the initial hearing and it is not on trial in this appeal.

The appellant was 20 years of age when he went overseas. Having resisted peer pressure and the allurements which encourage the young and adolescent to smoke, until that age, there is, in our view, a distinct possibility, that, if his war service and its concomitants had not supervened, he might never have smoked.

The evidence as to the attitude to smoking in the early nineteen forties within the 2nd New Zealand expeditionary Force and of the appellant having first commenced to smoke in that prevailing climate, is accepted. And in our view such evidence is 'reasonable evidence' within the terms of s 17(3). It is also evidence 'in connection with' the second World War and thus satisfies the other prerequisite to the invocation and application of that subsection. And, we hold such evidence to show that the appellant's emphysema was 'possibly attributable to his service with the forces'.

In that circumstance the presumption as to attributability provided for in s 17(3) is established and operates in appellant's favour, unless we are satisfied that his condition 'was not so attributable - but was due strictly to other causes'.

We are not so satisfied. Accordingly it follows that the disablement of emphysema is attributable to appellant's 'service with the forces'.

The italics in the three preceding paragraphs are ours. The words italicised are relevant phrases and sentences from s 17(3).

In the result, the appeal must be allowed and it is allowed accordingly.

Sadly and unfortunately the appellant died on 2 November 1988 whilst this appeal was still undetermined. Regulation 31 of the War pensions Regulations 1956, however, provides, in that circumstance, 'that the appeal may be continued ...'.

We fix the quantum of the pension at 70% of total, effective from the nearest pension pay date to 12 August 1987 until 2 November 1988 and thereafter, if the claimant's widow survived him, pursuant to s 32 of the Act.