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Goldberg J

3 July 1998

[Full Text]

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The Repatriation Commission lodged an appeal to the Federal Court against a decision of the Tribunal that Mr�McKenna's ischaemic heart disease and atherosclerotic peripheral vascular disease were war-caused. (See 13 VeRBosity 103). He was first diagnosed with hypertension in 1964 and this was accepted as war-caused in 1985 under s 101 of the Repatriation Act 1920. The clinical onset of his ischaemic heart disease was in 1987 and the onset of his peripheral vascular disease was in 1990.

Mr McKenna rendered operational service during World War 2 and the "reasonable hypothesis" standard of proof as set out in ss 120(1) and (3) of the VE Act was applicable to the claim. As his claim in respect of ischaemic heart disease and atherosclerotic peripheral vascular disease was lodged after 1 June 1994, the Tribunal was required to apply Statements of Principles (SoPs) as determined by the Repatriation Medical Authority. The SoP concerning ischaemic heart disease includes as a factor related to service:

The SoP concerning atherosclerotic peripheral vascular disease includes as a factor that must be related to service:

Mr McKenna's claim in respect of ischaemic heart disease and atherosclerotic peripheral vascular disease was refused by the Repatriation Commission on the basis that his circumstances did not satisfy the SoPs for those two conditions. This decision was set aside by the VRB which determined that his ischaemic heart disease and atherosclerotic peripheral vascular disease were war-caused.

The Repatriation Commission submitted on appeal to the Tribunal that the claimed link between the veteran's hypertension and his service was not upheld by the SoP relating to hypertension. The Tribunal rejected this submission on the basis that the Commission had not disproved beyond reasonable doubt that the veteran's hypertension was related to service and therefore decided to affirm the VRB's decision.

In the Federal Court, the Repatriation Commission submitted that the Tribunal had failed to consider whether the hypothesis raised by the material and said to link ischaemic heart disease and atherosclerotic peripheral vascular disease with operational service was upheld not only by the SoPs relating to those conditions but also by the SoP concerning hypertension. It was said that as the hypothesis said to connect the two diseases relied on the presence of hypertension before the clinical onset of the two diseases and proposed that hypertension was related to operational service because of stress or psychiatric disturbance, it was necessary that the Statement of Principles concerning hypertension uphold the hypothesis. The SoP concerning hypertension did not uphold the hypothesis linking hypertension to service based on stress/anxiety.

The Repatriation Commission also submitted that an hypothesis of connection between a particular disease and a veteran's service that relies on a connection between a second disease and service cannot be regarded as upheld by the relevant Statement of Principles within subs 120A(3) of the Act where the Statement of Principles concerning the second disease does not recognise the hypothesised connection between the second disease and service.

Mr McKenna's counsel submitted that the legislation should be construed beneficially and that where a disease is causally related to a factor such as hypertension, it was not necessary to consider the application of the SoP relating to that factor.

Goldberg J followed the approach of the Full Court of the Federal Court in Repatriation Commission v Deledio (22� April 1998) concerning the role of Statements of Principles in establishing a reasonable hypothesis. Goldberg J noted that in this case, the connection between the two claimed disabilities and service involved a number of links or factors, each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles. In this case the relevant links or factors were said to be:

In Mr McKenna's case, the link between ischaemic heart disease and atherosclerotic peripheral vascular disease and hypertension was upheld by the SoPs but the link between hypertension and operational service based on stress/anxiety was not upheld by the SoP on hypertension. Goldberg J said that this final link in the chain of causation was not upheld by a SoP and the Tribunal had therefore failed to apply s 120A(3) in the correct manner. His Honour said:

Goldberg J said that the Tribunal had failed to give effect to the requirement in s�120A(3) that an hypothesis is reasonable only if there is in force a Statement of Principles which upholds it. He said:

The Repatriation Commission also submitted that the Tribunal had erred in placing on the Commission an onus of disproving beyond reasonable doubt that the veteran's hypertension was related to his operational service. Goldberg J said that s 120(6) made it clear that no onus was imposed on a claimant or the Commonwealth of proving "any matter that is, or might be, relevant to the determination of the claim or application".

Goldberg J said it did not appear that the Tribunal had resolved the issues before it by placing an onus on the Commission. Rather, the Tribunal had determined whether there was evidence before it which satisfied it of relevant matters beyond reasonable doubt.

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