CM5542 Consideration of Claims Under s120 VEA

Following the Full Federal Court Case of Deledio

REPATRIATION COMMISSION GUIDELINES

Application of these Guidelines

These Guidelines are issued for assistance in approaching the task of decision-making under s 120 of the Veterans' Entitlements Act 1986.  They should be read in conjunction with other relevant legislation and Federal and High Court decisions.

Purpose of these Guidelines

Following the decision of the Full Federal Court in Deledio (1998) and subsequent decisions, these guidelines explain how decision-makers should consider claims.

Structure of these Guidelines

The structure of these Guidelines is:

•    Part 1:              Background
•    Part 2:              Determination where SoP Exists and the 'Beyond Reasonable Doubt' Standard Applies
•    Part 3:              Determination of a Claim where SOP Exist and the 'Reasonable Satisfaction' Test Applies
•    Part 4:              Determinations where no SoP Exist and the 'Beyond Reasonable Doubt' Standard Applies
•    Part 5:              Determination of a Claim where no SoP Exists and the Reasonable Satisfaction Standard Applies

PART ONE:  BACKGROUND

Standards of Proof

The VEA sets out two standards of proof that apply in determining claims for pension—“reasonable satisfaction” and “beyond reasonable doubt”.

Reasonable Satisfaction.

The reasonable satisfaction standard of proof means that the decision-maker must be satisfied that it is more likely than not that a fact exists.

• This standard of proof applies under s 120(4) throughout claims arising from Eligible War Service and Defence Service.

• The 'reasonable satisfaction' test also applies in 'beyond reasonable doubt' cases in deciding matters preliminary to determination of a claim, such as whether the claimant is a veteran under the Act, or the nature of the condition from which the veteran is suffering.

Beyond Reasonable Doubt.

• The 'beyond reasonable doubt' standard of proof applies to claims concerning Warlike, Non-Warlike, Operational, Peacekeeping, and Hazardous Service (Ss120(1) and 120(2)).

• After the judgement of a decision-maker that a reasonable hypothesis has been raised, (s120(3)), the decision-maker uses this standard of proof in determining whether facts exist that would cause the claim not to be granted.

Statements of Principles (SoP)

The Repatriation Medical Authority determines the medical factors that lead to injury, disease or death.  These factors are listed in SoP.

For each condition, separate SoP are produced showing which factors constitute a reasonable hypothesis (for use with the 'beyond reasonable doubt' standard of proof), and what factors apply at the 'balance of probabilities' (for use with the 'reasonable satisfaction' standard of proof).

However, some veterans may submit claims for conditions where no SoP applies.

SoP-related claims and non-SoP-related claims have different decision paths, and these guidelines are structured accordingly.

The role of s119 (1)

In assessing material in Stage 1, s119 (1) should be taken into account fully – that is, allowance must be made for the difficulties in ascertaining relevant matters, eg. the passage of time, or the absence of or deficiencies in official records.  While s 119 (1)(h) cannot take the place of the material, it can permit a positive finding to be made without corroborative evidence.

For example:

•      A veteran makes a statement about an occurrence on service in World War II. If that statement is credible, then s119 (1)(h) permits a finding to be made in favour of the claimant even though it is the only evidence of that event occurring.  This is because it may be unreasonable to expect the veteran or the Department to locate witnesses to the event who can corroborate the veteran's evidence given the lapse of time since it occurred.
•      A veteran may make a statement concerning the receipt of medical treatment for an injury during a particular military action.  If that statement is credible, then s119 (1)(h) can permit a finding made in favour of the claimant, even though there is no record of that treatment in the veteran's service records.  This is because it is common knowledge that the exigencies of service were such that full records of all treatment were not always made.
•      A widow may make a statement that her late husband told her certain things about circumstances of his service.  If that statement is credible, then s119 (1)(f) can permit a finding to be made in her favour even though it is merely hearsay evidence and there is no other evidence to corroborate her statement.  This is because under s119 (1)(f) the rules of evidence do not strictly apply.

However, it must be remembered that s119(1) does not remove the obligation upon decision-makers to ensure that there is compliance with the provisions of the legislation before the entitlements can be granted.

PART TWO: DETERMINATION WHERE SOP EXISTS AND THE 'BEYOND REASONABLE DOUBT' STANDARD APPLIES

Where a claim arises from Warlike, Non-Warlike, Operational, Peacekeeping or Hazardous Service, s120 (3) requires that it must raise a reasonable hypothesis connecting the applicant's condition to their war service.  Ss120 (1) and (2) require that this reasonable hypothesis must be accepted unless there are grounds beyond reasonable doubt for not doing so.

In raising a reasonable hypothesis, the question is not whether the material establishes the truth of a fact or a hypothesis or a connection on the balance of probabilities.  Rather a lower threshold is required.  The question is whether “after consideration of the whole material” (s120 (3)) the decision-maker is of the opinion that a reasonable hypothesis has been raised.  Establishing whether a hypothesis is reasonable is a two-part process: firstly is a hypothesis pointed to from the material; secondly is that hypothesis reasonable?

In general terms, a hypothesis will consist of two elements: an element linking the circumstance of the veteran's service to the existence of a factor or factors and a second element linking the factor or factors with the veteran's injury, disease or death.

Where SoP exist, the Full Federal Court has confirmed that there is a four-stage decision process.  The first three stages establish whether a reasonable hypothesis has been raised, and the fourth establishes, in relation to the facts of the claim, whether there are grounds beyond reasonable doubt for rejecting the claim.

Stage 1

In Stage 1 the decision maker must consider all the material, and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular veteran's service.  No question of fact finding arises at this stage.

The decision-maker must examine the material for all possible hypotheses, not simply for the one suggested by the claimant. If no hypothesis arises, the application does not proceed beyond this Stage.

In determining whether the material points to a hypothesis it is conceivable that three types of material will arise:

• material that supports a hypothesis;
• material that is inconsistent with this hypothesis;  and
• material that is neutral in relation to the hypothesis.

The presence of material that is neutral or inconsistent does not preclude the existence of a hypothesis, but for it to be reasonable it must be pointed to on the whole of the material.

Material pointing to a hypothesis should support it directly.  It is not sufficient for the material to merely leave open the possibility that a hypothesis exists, or for a hypothesis to be asserted without supporting material.  In other words, a hypothesis cannot be raised if there is no material that points to it.

Stage 2

In Stage 2, the decision-maker must ascertain the SoP in force that relates to the kind of injury, disease or death pointed to in the hypothesis that has been raised.

It may be that there is no SoP, but there is a determination by the Commission under s180A concerning the particular injury, disease, or death that should be applied.  In this case the Commission determination is treated as if it were a SoP.

Having ascertained the relevant SoP, the decision-maker proceeds to Stage 3.  If there is no relevant SoP and no s180A determination then the decision-maker should turn to Part 4 of these Guidelines.

Stage 3

In this Stage of the process, the decision-maker must consider whether the hypothesis identified at Stage 1 is reasonable.  This entails making two judgments:

•      whether the hypothesised linkage between service-related factor and the medical condition or disability is reasonable (the Medical linkage); and
•      whether the element of the hypothesis linking the service to a particular factor is reasonable (the Service linkage).

The Medical Linkage

The criterion here is that the linkage is consistent with the relevant SoP.  Does the hypothesis raised by the material include the elements prescribed by the SoP?

Either the hypothesis meets the SoP or it does not.  It is at this stage that the hypothesis pointed to by the material is measured against the template of the SoP. The veteran's circumstances should not be approximated, assumed, conjectured or surmised to be equivalent to that factor.  Nor should the elements within that be redefined.

Where a SoP exists, the factors in the SoP for that particular condition are exclusive in the establishment of any medical connection in a particular claim.  That is, no other factors can be accepted.  Furthermore, the whole and not simply a part of any medical connection must be upheld by one or more SoPs.

The SoPs to be applied are the relevant current SoPs at the time the decision-maker is deciding the claim.  In the review or appeal process, decision-makers are to first apply the current SoPs, but if the hypothesis does not fit these SoPs, then the hypothesis is to be tested against the SoPs in force at the time of the original decision.  If the hypothesis meets the original SoPs, it is considered reasonable.

The Service Linkage

The criteria for considering the general reasonableness of a hypothesis have been specified in the High Court judgements of East, Bushell, Byrnes and Bey, and these criteria should be used when considering the reasonableness of the service linkage.

These judgments establish that a hypothesis cannot be reasonable if it is contrary to scientific facts or to the known phenomena of nature.  Nor can it be reasonable if it is obviously fanciful, impossible, incredible, or not tenable, or too remote or too tenuous.

Care should be exercised in determining the reasonableness of the service linkage. A hypothesis can still be reasonable even though some material might indicate an alternate explanation.  It may be too that the hypothesis in itself is reasonable, but what is in doubt is whether the claimant's service supports such a link.  This is a matter that should be decided at Stage 4The Repatriation Commission notes that some veterans were called upon to render service that might appear out of the ordinary.  The Commission recommends that if a decision-maker has doubts about this service, then the decision-maker should contact the claimant or his representative and establish whether further relevant material is available.

Summary of Stage 3

If the element of the hypothesis linking service to the advent of factors is reasonable, and if the element of the hypothesis linking the factor(s) to the condition claimed fits the template(s) of the SoP(s), then the overall hypothesis is a reasonable hypothesis.  The decision-maker should proceed to Stage 4 of the decision-making process.  If the claim does not meet these requirements it cannot be considered a reasonable hypothesis, and the claim would be rejected on that basis.

Stage 4

In this stage the decision-maker considers whether, beyond reasonable doubt, the injury, disease, or death was not war-caused.  If no such decision can be made, the claim succeeds unless the decision-maker is reasonably satisfied that a disqualifying factor applies, such as serious default, wilful act or serious breach of discipline (s8 (3), s9 (3) and s70 (9)).

It is only at this stage that fact finding is undertaken by a decision-maker.  There is still no onus on either party to prove or disprove any fact or element of the hypothesis.  Moreover, the beneficial provisions of s119 (1) remain applicable.

There are two circumstances in which a decision-maker can be satisfied beyond reasonable doubt at this point.  The first is the existence of a fact or facts inconsistent with the reasonable hypothesis.  The second is the non-existence of a fact or facts essential to the reasonable hypothesis.

For example, a decision-maker might be satisfied beyond reasonable doubt that a fact is inconsistent with the reasonable hypothesis because it conflicts with known historical data.  Likewise, a decision-maker might be satisfied beyond reasonable doubt of the non-existence of a fact essential to the reasonable hypothesis because it is inherently unbelievable.

Beyond reasonable doubt is the same degree of satisfaction that a jury must have before it can convict a person of a crime.  It does not require overwhelming evidence.  It can be achieved without any direct evidence if circumstantial evidence is sufficiently compelling.  However, in circumstantial evidence cases, the jury members must be satisfied that there is no other reasonable explanation available before a finding can be made that they are satisfied beyond reasonable doubt that the accused is guilty.

Satisfaction 'beyond reasonable doubt' does not mean satisfaction beyond all or any doubt.  A decision-maker does not have to be absolutely convinced that a fact(s) exists (or does not exist), but that any doubt about its existence (or non-existence) is unreasonable.

This standard of proof requires evidence more compelling than the reasonable satisfaction test, and its application, in its inverse form, to Warlike, Non-Warlike, Operational, Peacekeeping and Hazardous Service underlines the beneficial nature of the test which Parliament has decided should apply to these cases.

Practical application of the 4-Stage test

Applying the process in the order established by the Court will prevent an error of law being made.  However, the consideration in any stage may be influenced by the answers that can be anticipated in a later stage.  Thus it is not absolutely necessary to consider Stage 1 in isolation from what you will be considering in Stages 2 and 3.

For example, if a claim, supported by a doctor and some medical research, were to hypothesise that the bite of a mosquito might be responsible for later development of pleural plaques, the decision-maker may properly use knowledge of the relevant SoP.  If a mosquito bite is not a factor in the SoP for pleural plaque, your consideration need only be brief. A finding in Stage 1 that the hypothesis is pointed to by the material does not serve any purpose because the application of Stages 2 and 3 would necessarily cause the claim to fail.

PART THREE: DETERMINATION OF A CLAIM WHERE SOP EXIST AND THE 'REASONABLE SATISFACTION' TEST APPLIES

Where a claim arises from Eligible War Service or Defence Service, the claim is tested by application of the reasonable satisfaction standard.  Is it more likely than not that the injury, disease or death was war or defence caused?

Reasonable satisfaction does not require overwhelming evidence.  However, there must be evidence sufficient that, on balance, it supports the existence of a fact more than it denies that existence

A four-step process should be followed by decision-makers.

Stage 1

The decision-maker must consider all the material and determine whether that material raises to a level of reasonable satisfaction a contention connecting the injury, disease or death with the existence of medical factors that are in turn linked to the circumstances of the particular veteran's service.  If no contention is raised then the claim must fail.

Consideration of the effect of s119 (1) also applies in reasonable satisfaction cases (see the notes on s119 (1) under Stage 1 of Part Two of these guidelines).

Stage 2

The decision-maker must ascertain whether there is a SoP in force that relates to the relevant kind of injury, disease or death raised by the claim.

It may be that there is no SoP, but there is a determination by the Commission under s180A concerning the particular injury, disease, or death that should be applied.  In this case the Commission determination is treated as if it were a SoP.

Having ascertained the relevant SoP, the decision-maker proceeds to Stage 3.  If there is no relevant SoP and no s180A determination then the decision-maker should turn to the pathways in Part 5 of these Guidelines.

Stage 3

If there is a relevant SoP in force the decision-maker must consider whether the contention identified at Stage 1 is consistent with that SoP.  Does the contention contain one, or more, of the factors determined by the RMA to be the minimum that must exist and that must be related to the person's service?

The criteria to be considered are similar to those used in considering the medical linkage given in Stage 3 of Part Two of these guidelines.

If the contention fits the template(s) of the SoP(s), then the claim proceeds to Stage 4.  If the claim does not fit the template(s), the contention cannot meet the test of reasonable satisfaction.  The claim would be rejected on that basis.

Stage 4

Unless the decision-maker can be reasonably satisfied that the relevant contention did not occur or that a disqualifying factor applies (serious default, wilful act or serious breach of discipline in s8 (3), s9 (3) or s70 (9)), the claim must be granted.

A decision-maker can be so satisfied that a contention did not occur if a fact exists that is inconsistent with the contention; and second, if a fact essential to the contention does not exist.  Either will cause the claim to fail, provided the decision-maker is reasonably satisfied of either of these two matters.

Part four: Determinations where No SoP exist and the 'Beyond Reasonable Doubt' Standard applies

Where a claim arises from Warlike, Non-Warlike, Operational, Peacekeeping or Hazardous Service, s120 (3) requires that it must raise a reasonable hypothesis connecting the applicant's condition to their war service. Ss120 (1) and (2) require that this reasonable hypothesis must be accepted unless there are grounds beyond reasonable doubt for not doing so.

In raising a reasonable hypothesis, the question is not whether the material establishes the truth of a fact or a hypothesis or a connection on the balance of probabilities.  Rather a lower threshold is required.  The question is whether “after consideration of the whole material” – to use the words of s120 (3) itself – the decision-maker is of the opinion that a reasonable hypothesis has been raised.

Preliminary Considerations

Where no SoP exists for the particular condition being claimed, there are three separate situations that need to be considered.

Firstly, the RMA may have given notice that a s196E request has been received and that it intends to carry out an investigation in respect of the particular kind of injury, disease or death.  In this event, the claim should be determined after the RMA has concluded its consideration.

Secondly, the RMA may have declared, in accordance with s196J, that it does not propose to make a SoP in respect of that particular condition.  This means that there can be no reasonable hypothesis in respect of this condition.  Unless the Commission has made a determination under s180A that allows the claim, the claim cannot succeed.

Thirdly, the RMA may not yet have considered the condition.  In this event, the claim may be determined under s120 without regard to s120A and the SoP system.  However, no decision should be made without considering an approach to the RMA to make a SoP for that condition, unless that approach would involve unreasonable delay or would be for a single, unique condition.

Determination Process

When deciding a claim under s120, the authoritative statement of the law in relation to a situation where no SoP exists is to be found in the Full Federal Court decision of Bey.  The Bey decision reaffirms and explains the operation of the East decision in light of Bushell and Byrnes.

For East, Bushell, Byrnes and Bey to apply, there must be material pointing to a hypothesis in the same way as discussed above in Stage 1 of Part Two of these Guidelines.

However, beyond that point, it is the decision-maker who must assess whether the hypothesis is reasonable.  A decision‑maker can be satisfied that it is so if it is:

(a)more than a possibility, not fanciful or unreal, consistent with the known facts; and

(b)pointed to by those facts, even though not proved on the balance of probabilities; and

(c)not contrary to proved or known scientific facts; and

(d)not obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous.

If the decision-maker assesses that the hypothesis is not reasonable, then that decision-maker can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury, disease or death was war-caused under s120 (1).

If the decision-maker assesses that the hypothesis is reasonable, then that decision-maker is required to decide beyond reasonable doubt whether a fact exists that means the claim should not be accepted.  The considerations in this instance are the same as those applying in Step 4 of Part 2 of these Guidelines.

Part Five: Determination of a Claim where No SoP exists and the Reasonable Satisfaction Standard applies

Where a claim arises from Eligible War Service or Defence Service, the claim is tested by application of the reasonable satisfaction standard.  Is it more likely than not that the injury, disease or death was War or Defence-caused?

Preliminary Considerations

If no SoP exists for the particular condition being claimed, there are three separate situations that need to be considered.

Firstly, the RMA may have given notice that a s196E request has been received and that it intends to carry out an investigation in respect of the condition.  In this event, the claim should be determined after the RMA has concluded its consideration.

Secondly, the RMA may have declared, in accordance with s196J, that it does not propose to make a SoP in respect of that particular injury, disease or death.  This means that a decision-maker can be reasonably satisfied that there can be no connection to service in respect of that particular kind of injury, disease or death.  The claim cannot succeed.  However, the Commission may have made a determination under s180A that allows the claim and this should be considered in all instances.

Thirdly, the RMA may not yet have considered the particular kind of injury, disease or death.  In this event, the claim is to be determined under s120 without regard to s120B and the SoP system.

Determination Process

When deciding a claim under the reasonable satisfaction standard where no SoP exists, a single-step process applies.

All the material is examined to determine what propositions of connection, emerge from the material.  For a claim to succeed the decision‑maker must be reasonably satisfied that the injury, disease or death of the veteran is connected with the circumstances of his or her service.

Neil Johnston

PRESIDENT

3 February 2004