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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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Death due to histiocytosis - whether resulted from smoking
Repatriation Commission v Webb
Tamberlin, Finn and Marshall JJ
5 November 1998
[Full Text]
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The Repatriation Commission appealed to the Full Court of the Federal Court against the decision of Finkelstein J setting aside a decision of the AAT that the death of Mr Webb was not war-caused. (See 13 VeRBosity 112). As Mr Webb rendered operational service during World War 2, the claim was required to be considered in terms of subsections 120(1) and (3) of the VE Act and the principles enunciated by the High Court in the cases of Bushell v Repatriation Commission (1992) and Byrnes v Repatriation Commission (1993).
Mr Webb died in 1985 and the precise cause of his death was not established. The post-mortem report referred to "histiocyctic proliferative disorder of uncertain aetiology". Mrs Webb contended that her late husband died as a result of histiocytosis, (non-Hodgkin's lymphoma) ("NHL") which may have been caused by him commencing to smoke while in New Guinea. The AAT rejected the hypothesis that Mr Webb's death was caused by NHL and that such lymphoma was caused by smoking.
Finkelstein J held that the AAT had made a number of errors about the state of the evidence. The first error related to evidence given by Dr Parkin on behalf of Mrs Webb. The AAT stated in its decision that Dr Parkin had abandoned his claim that there was a possible connection between smoking and NHL. Instead, the AAT said Dr Parkin had advanced a more general hypothesis that an ex-serviceman is more susceptible to NHL than the rest of the community. Finkelstein J agreed that Dr Parkin had advanced the more general hypothesis but concluded that the AAT was wrong to consider that Dr Parkin had abandoned his primary hypothesis.
The second error made by the AAT concerned the finding that the hypothesis connecting smoking with NHL "lacks support in the medical studies". His Honour found that Professor Fox, who gave evidence before the AAT, had referred to studies which did show such an association.
The third legal error identified was the statement by the AAT in its reasons for decision identifying its task as evaluating or weighing the evidence of Dr Parkin against what appeared "in the medical studies". His Honour described this as "an impermissible task".
Finkelstein J further held that assuming the AAT was not in error in evaluating Dr Parkin's evidence against the medical studies, it was in error in not evaluating such evidence against all relevant evidence including that of two witnesses, Professor Fox and Dr Fairley, which supported Dr Parkin's approach.
Finally, Finkelstein J held that the AAT had erred in law in approaching the hypothesis contended for by Mrs Webb with a pre-disposition to its weakness as a result of there being opposition to the hypothesis.
Full Court appeal
In relation to the AAT's finding that Dr Parkin had abandoned his claim that there was a possible connection between smoking and NHL, the Full Court agreed with Finkelstein J that it was not correct to say that Dr Parkin had abandoned his opinion as to the existence of a reasonable hypothesis. Although the AAT had some reservations as to the general reliability of the evidence of Dr Parkin, it was erroneous to determine the question on the basis that the hypothesis had been abandoned by him. Although Dr Parkin raised a "new" hypothesis, he did not discard his earlier opinion. The Full Court concluded that on this ground alone, the matter should be remitted to the AAT for reconsideration.
In relation to an association between smoking and NHL, the Full Court did not consider that the AAT erred in stating that the hypothesis connecting smoking with NHL lacked support in the medical studies in the material before the AAT. However, as the High Court indicated in Bushell's case, lack of support in the profession is not decisive on the question of whether a reasonable hypothesis existed.
The Full Court also did not consider that the AAT erred by referring to "evaluating or weighing" the evidence. The Full Court said:
"Any examination of the material before the AAT necessarily involves having regard to conflicting medical opinions and, as pointed out in Bushell's case, this is a proper exercise to be undertaken by the AAT in the performance of its task. This must involve some degree of evaluating or weighing medical opinions in the light of all the material presented to the AAT."
Concerning the diagnosis of NHL, the evidence of Dr Fairley, a treating specialist, was that malignancy was the most likely diagnosis, whereas expert pathologists considered that this was unlikely. The AAT concluded that this was not sufficient to render the hypothesis unreasonable but went on to conclude that the evidence did not "point to" a diagnosis of NHL.
The Full Court observed that these two conclusions appeared to be in conflict and this was not explained by the AAT in its reasons for decision. The Full Court said:
"The evidence of Dr Fairley must have been discounted by the AAT, to the extent that the diagnosis hypothesis was considered too tenuous to be reasonable, yet no grounds are given for this ultimate conclusion on the question of diagnosis. It is difficult to see how it can be said, on the one hand, that the expert evidence of pathologists did not render the hypothesis of death through NHL unreasonable and yet conclude, on the other hand, that the connection was too tenuous. This unexplained basis for discarding the diagnosis section of the hypothesis supports a conclusion that, in reaching its final conclusion on the diagnosis question, the AAT failed to take into account a relevant matter; namely, the evidence of Dr Fairley on this point."
Finally, the Full Court held that the AAT also erred in its consideration of the overall hypothesis. The AAT accepted that the expert pathologists' view that a malignancy diagnosis as to the cause of death was unlikely was not sufficient to render the overall hypothesis unreasonable. Its conclusion, however, indicated that the conflicting evidence was considered to cast doubt on the overall hypothesis to such an extent that it had the effect of rendering the overall hypothesis unreasonable.
The Full Court concluded that the AAT had adopted an incorrect approach when considering the reasonableness of the overall hypothesis. The Court said:
"In our view, this is not the approach required by the authorities. The proper approach is to ask, in relation to each sequential part of the hypothesis, whether the facts point to that part of the hypothesis being reasonable. Once it is established that a relevant part of the overall hypothesis is reasonable, then any doubts as to the reasonableness of that part of the hypothesis must, for the purposes of s 120(3), be put aside, and the next part of the hypothesis considered. It is not appropriate to carry over or accumulate doubts in relation to the reasonableness of one part of the hypothesis and apply these doubts to a consideration of other parts of the hypothesis or to the hypothesis as a whole. In the present case, each sequence in the overall hypothesis raises a discrete question. What must be answered is the question whether the hypothesis pointed to by each sequential part which makes up the overall hypothesis is reasonable. If this is so then the overall hypothesis may be considered reasonable. The AAT did not do this."
Formal decision
The Full Court dismissed the Repatriation Commission's appeal and ordered that the matter be remitted to the AAT for rehearing.