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VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
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Statements of Principles - chain of causation - sub-hypothesis
McKenna v Repatriation Commission
Branson, Sundberg & Nicholson JJ
29 March 1999
[Full Text]
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Mr McKenna lodged an appeal to the Full Court against the decision of Goldberg J setting aside a decision of the Tribunal that his ischaemic heart disease and atherosclerotic peripheral vascular disease were war-caused. (See 14 VeRBosity 65)
The Tribunal was required to consider the application in terms of Statements of Principles (SoPs) as determined by the Repatriation Medical Authority. The SoPs concerning atherosclerotic peripheral vascular disease and ischaemic heart disease each identify as a factor, suffering from hypertension before the clinical onset of the disease with which the particular statement is concerned.
Mr McKenna suffered from hypertension which was accepted as war-caused in 1985 under s 101 of the Repatriation Act 1920. The Repatriation Commission submitted at the Tribunal that the claimed link between the veteran's hypertension and war service based on stress/anxiety was not upheld by the SoP relating to hypertension. The Tribunal rejected the submission on the basis that the Commission had not disproved beyond reasonable doubt that the veteran's hypertension was related to service.
Goldberg J held that the Tribunal had erred in law in that it had failed to consider whether the connection between the veteran's hypertension and his war service was upheld by the SoP on hypertension. His Honour noted that in Mr McKenna's case, the connection between the two claimed disabilities and service involved a number of links or factors, each of which was required to be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles. 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. The Tribunal had therefore failed to apply s 120A(3) in the correct manner.
Full Court's consideration
The Full Court referred to Repatriation Commission v Deledio (1998) 27 AAR 144 in which the Court outlined the correct approach to applying ss 120 and 120A of the VE Act. The Full Court said:
"The first step that the Tribunal was required to take was to consider all of the material before it and determine whether that material pointed to a hypothesis or hypotheses connecting Mr McKenna's ischaemic heart disease and his atherosclerotic peripheral vascular disease with the circumstances of the particular service rendered by him (see ss 120(3) and 120A(3)). As Goldberg J pointed out, a relevant hypothesis had to consist of a link or links which connected, at the one end, the disease which was the basis of Mr McKenna's claim under Part II of the Act with, at the other end, the circumstances of the particular service rendered by Mr McKenna. The fact that in 1985 Mr McKenna's hypertension was accepted as service-related under s 101 of the Repatriation Act 1920 thus had no direct relevance so far as the identification of a relevant hypothesis for the purposes of s 120(3) of the Act was concerned."
The Full Court said that in Mr McKenna's case, the hypotheses linking ischaemic heart disease and atherosclerotic peripheral vascular disease with the circumstances of his service each comprised two sub-hypotheses: one which linked his ischaemic heart disease or atherosclerotic peripheral vascular disease with his disease of hypertension, and the other which linked his hypertension with the circumstances of the particular service rendered by him via the factors of stress or anxiety. In order for his claim to succeed, each of the sub-hypotheses had to be upheld by a Statement of Principles. The Full Court saw no difficulty in interpreting s 120A(3) so as to require a hypothesis to be upheld by more than one Statement of Principles.
The Full Court concluded as follows:
"In the circumstances it was, in our view, not open to the Tribunal to form the opinion that the sub-hypotheses linking Mr McKenna's hypertension with the service rendered by him was reasonable. For the reasons given above, if it was not open to the Tribunal to form the opinion that the sub-hypothesis linking Mr McKenna's hypertension with stress and anxiety were reasonable, it was not open to it to conclude that the hypotheses raised by the material before it were reasonable."
Formal decision
The Court dismissed Mr McKenna's appeal.