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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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Psychiatric condition - existence of disease to be decided on civil standard of proof
Repatriation Commission v Cooke
French, Drummond and Carr JJ
23 December 1998
[Full Text]
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The Repatriation Commission appealed to the Full Federal Court against a decision of the Tribunal that Mr Cooke's anxiety state was war-caused. At the Tribunal, there were conflicting expert medical opinions as to whether the veteran was in fact suffering from an anxiety state. He served in Japan during the Korean war and claimed that attendance at military funerals had caused him to develop an anxiety state. The Tribunal had determined the issue of whether he had an anxiety state by applying the "beyond reasonable doubt" standard of proof in ss 120(1) and (3) of the VE Act. (The Tribunal's decision is reported at 14 VeRBosity 8).
The Full Court noted that in applying the reverse criminal standard of proof, the Tribunal followed dicta from Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 426 as adopted by Beazley J in Preston v Repatriation Commission (1993) 123 ALR 719 (9 VeRBosity 67). It distinguished Lee J's decision in Ferriday v Repatriation Commission (1996) 42 ALD 526 (12 VeRBosity 75) on the basis that that case involved proof of "an entirely different matter".
Issue
The question of law raised before the Full Court was whether the Tribunal had applied the correct standard of proof in determining whether Mr Cooke suffered from the disease of anxiety state.
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�Submissions
The Commission submitted that the Tribunal made an error of law by applying the incorrect standard of proof and that the civil standard prescribed by s 120(4) ("reasonable satisfaction") should have been applied to the question of whether Mr Cooke was suffering from the claimed disease.
Mr Cooke's counsel contended that the Tribunal applied the correct standard of proof, that is, that the question of the existence of a disease must be part of the hypothesis connecting the claimed disease with war service and should be decided by applying the reverse criminal standard of proof.
Court's conclusion
The Full Court allowed the Commission's appeal and expressly overruled Preston's case on the standard of proof issue. The Full Court observed:
"In our opinion, the appeal should be allowed. We think that it is quite clear that the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission. In other words, s 120(1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120(1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120(3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service. That standard applies only to a 'determination' that the disease is war-caused. This can be seen by examining the precise subject matter and purpose of s 120(1) as revealed in the language in which it is expressed. The subsection speaks of:
- 'the' incapacity from injury or disease of a veteran;
- 'the' death of a veteran;
and requires the Commission to determine that
- 'the' injury was a war-caused injury; or
- 'the' disease was a war-caused disease; or
- 'the' death was war-caused;
unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The subject matter and purpose of the subsection are confined to the standard of proof of war-causation."
The Full Court cited with approval the statement of Lee J in Ferriday v Repatriation Commission that:
"Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under subs 120(1) are facts to be established to the reasonable satisfaction of the Commission."
The Full Court concluded that in a case involving operational service, it made good sense to apply the civil standard of proof in s 120(4) to the question of whether a veteran is suffering from a particular disease and then to apply the reverse criminal standard in ss 120(1) and (3) to the question of the service connection to the veteran's death or incapacity.
Formal decision
The Court allowed the Commission's appeal and remitted the matter to the Tribunal for rehearing.