CM5017 Application of S120 VEA Following the Full Federal Court Case of Deledio

REPATRIATION COMMISSION GUIDELINES

CM 5017 - Application of S120 VEA Following the Full Federal Court Case of Deledio

Background

The Repatriation Medical Authority, under the June 1994 amendments to the Veterans' Entitlements Act 1986, determines the factors that cause injury, disease or death for the purposes of the reasonable hypothesis and reasonable satisfaction tests.

The RMA legislation indicates that where a Statement of Principles (SoP) exists, the factors in the SoP are exclusive in the establishment of any medical connection in a particular claim. The whole and not simply a part of any medical connection must be upheld by one or more SoPs.  The connection of any factors to the particular circumstances of the veteran's service before it can be said that the veteran's death, disease or injury is service-related must be upheld by one or more SoPs.  The necessity for the whole chain of causation to be considered by reference to all the SoPs involved in that chain is upheld by the Federal Court in McKenna.

The Deledio judgment

The Full Federal Court in Deledio (Beaumont, Hill and O'Connor JJ, 22 April 1998) found that there was no onus on any party to prove any matter. Further, they found that the decision making process is an administrative process which is inquisitorial and not adversarial and thus the concepts of legal onus and burden of proof do not apply.

This judgement highlights an important responsibility of Repatriation Commission decision-makers.  If the available material does not raise a reasonable hypothesis on the basis advanced by the claimant, the decision-maker is still obliged to consider whether or not there is another valid basis on which the claim could be considered.   A decision-maker cannot reject a claim unless all apparently valid bases have been examined.

Purpose of these Guidelines

These guidelines explain how claims should be considered in the light of the Deledio judgement. Advice is provided on how to deal with SoP and non-SoP cases, and cases where the reasonable satisfaction test is applicable. An explanation of the differences between 'beyond reasonable doubt' and 'reasonable satisfaction' tests is also included.

Where the 'Reasonable Hypothesis' Test Applies

Where the service is warlike, non-warlike, operational, peacekeeping or hazardous, the claim is tested by application of the 'beyond reasonable doubt' standard.  The Full Federal Court has confirmed that there is a four-stage process.

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, that is the existence of medical and other factors and their relationship to the veteran's service. No question of fact finding arises at this stage.

It is not necessary that each item of material should individually point to the hypothesis.  That is, the existence of inconsistent material does not necessarily preclude the raising of a reasonable hypothesis.  The question is whether, overall, the whole of the material points to and connects the hypothesis.  The concept of “pointing to” implies that the material must positively support, and not merely leave open, the applicability of the hypothesis.

The two propositions that the material must point to and positively support the hypothesis, mean that the material before the decision-maker needs to be considered for consistency, and for relevance, credibility, and reliability. Where some material is inconsistent with other material, it is necessary to consider whether the overall weight of the material still points to the hypothesis. Clearly, material that is irrelevant, incredible or unreliable should be given no weight.

In assessing material, 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 s119 (1)(h) cannot take the place of the material necessary to point to a hypothesis, it can permit a positive finding to be made without corroborative evidence.

For example:

• If a veteran makes a statement about an occurrence on service in World War 2, 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. The finding is possible because the statement by the veteran is credible.  This is because it may be unreasonable to expect the veteran or the Department to locate another witness to the event who can corroborate the veteran's evidence given the lapse of time since it occurred.

• If a veteran makes a statement concerning receiving medical treatment for an injury in New Guinea, then s119 (1)(h) permits 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 and the information is credible.

• A statement by a widow that her late husband told her certain things about the circumstances of his service 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 the rules of evidence do not strictly apply (s119 (1)(f)), and her statement is credible and consistent and reliable.

Nevertheless, after due allowance, the material may still be irrelevant or so unreliable or incredible or fanciful that the decision-maker may properly conclude that the whole of the material does not adequately point to the relevant hypothesis.

For example:

• If there is substantial reliable and credible material pointing away from a hypothesis and only a little evidence pointing towards it (the reliability and credibility of which may be doubtful), it could be said that this inconsistency means that the material does not, overall, point to the hypothesis.

• If a statement by a person is clearly self-serving, contradicted by previous statements of that person in circumstances where there was no reason to tell anything but the truth, and there is no satisfactory explanation for the contradictions, the statement could be rejected.  It would be rejected, not because of a finding of fact concerning the matter about which the evidence relates, but because of the nature of the evidence — it is inherently contradictory and thus lacks credibility.

• Evidence from a person about a matter concerning something or some event about which they could not possibly have any basis for knowledge may be inconsistent with other known facts or irrelevant or unreliable. Similarly, evidence from a person who has a very poor memory may be unreliable unless it is consistent with or corroborated by other evidence.

• Evidence about conditions of service in another theatre of war or a different time may be irrelevant if there is no reason to assume that similar conditions applied in the area in which the veteran served.

As indicated earlier, the decision-maker must consider the material for all the possible valid hypotheses, not simply the one suggested by the claimant.  Only then, if no hypothesis arises, will the claim fail.

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 in the claim.  This may not be the hypothesis advanced by the claimant.  The decision-maker must ascertain whether there is a SoP in force for all viable hypotheses.

It may be that there is no SoP but there may be a determination by the Commission under s.180A concerning the particular injury, disease, or death that should be applied.  If there is no relevant SoP and no s.180A determination then the approach outlined on page 5 of these guidelines, 'The Process Where No SoP Exists – Reasonable Hypothesis', must be considered.

Stage 3

If there is a relevant SoP in force, then the decision-maker must consider whether the hypothesis identified at Stage 1 is consistent with that SoP.  Does the hypothesis contain one, or more, of the factors determined by the Repatriation Medical Authority to be the minimum that must exist and that must be related to the person's service? This is an all or nothing question about the hypothesis that a decision-maker is dealing with — it either does or it does not. This is important because, while s119 is still applicable, it is at this stage that the various elements of the hypothesis advanced by the claimant have come together to be measured against the template of the SoP.  At this stage the veteran's circumstances should not be approximated, assumed, conjectured or surmised to be equivalent to that factor.  Nor should the elements within that factor be hypothesised into existence, nor the elements within the factor be redefined.

If the hypothesis fits the template(s) of the SoP(s), then it is a reasonable hypothesis and the decision-maker should proceed to Stage 4 of the decision-making process.  If the claim does not fit the template(s), the hypothesis cannot be a reasonable hypothesis.  The claim would then be rejected on the basis that there is no reasonable hypothesis of a connection to service.

Stage 4

If a hypothesis has advanced through Stage 3, the decision-maker must apply the final test and consider whether he or she is satisfied beyond reasonable doubt that the injury, disease, or death was not war-caused. If not so satisfied, the claim must succeed unless the decision-maker is reasonably satisfied that a disqualifying factor applies, such as serious default, wilful act or serious breach of discipline (s.8 (3), s.9 (3) and s.70 (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.

There are two circumstances in which a decision-maker can be satisfied beyond reasonable doubt. 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.  In practice, a decision-maker might for example 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.

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.

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. The consideration in any stage may be influenced by the answers that can be anticipated in a later stage. Thus it is not 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.

The Process Where No SoP Exists - Reasonable Hypothesis

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

First, the RMA may have given notice a s.196E 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.

Second, the RMA may have declared, in accordance with s.196J, that it does not propose to make a SoP in respect of that particular injury, disease or death. This means that there can be no reasonable hypothesis in respect of that particular kind of injury, disease or death.  The claim cannot succeed.  However, the Commission may have made a determination under s.180A that allows the claim and this should be considered in all instances.

Third, the RMA may not yet have considered the particular kind of injury, disease or death. In this event, the claim may legally be determined under s.120 without regard to s.120A and the SoP system. However, no decision should be made without considering an approach to the RMA to make a Statement of Principles for that condition, unless that approach would involve unreasonable delay or would be for a single, unique condition.

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.  This 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. However, Stages 2 and 3 do not apply, and instead the decision-maker must independently assess whether the raised hypothesis is reasonable. You can be satisfied that it is a reasonable hypothesis if it is:

1. more than a possibility, not fanciful or unreal, consistent with the known facts; and
2. pointed to by those facts, even though not proved on the balance of probabilities; and
3. not contrary to proved or known scientific facts; and
4. not obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous.

If it is not a reasonable hypothesis then as a consequence you 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 it is a reasonable hypothesis, then the test in stage 4 above should be applied.

Where the Reasonable Satisfaction Test Applies

Where the service is 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?  This can also be considered a four step process.

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 s 119 (1) also applies in reasonable satisfaction cases.

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 in the claim.  This may not be the contention advanced by the claimant.  The decision-maker must ascertain whether there is a SoP in force for all viable contentions.

It may be that there is no SoP but there may be a determination by the Commission under s.180A concerning the particular injury, disease, or death that should be applied.  If there is no relevant SoP and no s.180A determination then the approach outlined on page 7 of these guidelines, 'The Process Where No SoP Exists – Reasonable Satisfaction', must be considered.

Stage 3

If there is a relevant SoP in force then, 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 Repatriation Medical Authority to be the minimum that must exist and that must be related to the person's service? This is an all or nothing question about the contention that a decision-maker is dealing with — it either does or it does not. This is important because, while s119 is still applicable, it is at this stage that the various elements of the contention advanced by the claimant have come together to be measured against the template of the SoP.  At this stage the veteran's circumstances should not be approximated, assumed, conjectured or surmised to be equivalent to that factor.  Nor should the elements within that factor be assumed into existence, nor the elements within the factor be redefined.

If the contention fits the template(s) of the SoP(s), then it a decision-maker should proceed to Stage 4 of the decision-making process.  If the claim does not fit the template(s), the contention cannot meet the test of reasonable satisfaction.  The claim would then be rejected on the basis that the connection to service of the claimed condition could not be established to the reasonable satisfaction of the decision-maker as require by s.120 (4).

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), 9(3) or 70(9)), the claim must be granted. A decision-maker can be so satisfied: first, 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.

The Process Where No SoP Exists – Reasonable Satisfaction

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

First, the RMA may have given notice a s.196E 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.

Second, the RMA may have declared, in accordance with s.196J, 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 s.180A that allows the claim and this should be considered in all instances.

Third, the RMA may not yet have considered the particular kind of injury, disease or death. In this event, the claim may legally be determined under s.120 without regard to s.120A and the SoP system. However, no decision should be made without considering an approach to the RMA to make a Statement of Principles for that condition, unless that approach would involve unreasonable delay or would be for a single, unique condition.

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 hypothesis is sometimes advanced as a standard of proof, but it is not one.  In Owens' case, the High Court said that it is a finding of fact—after considering all the material, a decision-maker must judge whether or not that material has raised a reasonable hypothesis.

Reasonable Satisfaction

The reasonable-satisfaction standard of proof applies to all matters to be decided in claims that concern eligible war service and defence service. A claims assessor must be satisfied that it is more likely than not that a fact exists before a finding can be made that it does exist. Reasonable satisfaction does not require overwhelming evidence. However, there must be sufficient evidence so that it can be said, on balance, that, taken as a whole, the evidence supports the existence of a fact more than it denies its existence.

Beyond Reasonable Doubt

The beyond-reasonable-doubt standard of proof applies to claims concerning warlike, non-warlike, operational, peacekeeping, and hazardous service, and then only after the judgement of a decision-maker that a reasonable hypothesis has been found to have been raised by the material. This standard is applied to decide:

•       whether a fact exists that is inconsistent with the reasonable hypothesis; or
•       whether a fact does not exist that is essential to the hypothesis.

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, 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.

This standard of proof requires far more compelling evidence 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.

Application of These Guidelines

These Guidelines are issued for all claims assessors, review officers and advocates for guidance in approaching their delegated task of decision-making. They should be read in conjunction with the Veterans' Entitlements Act 1986, other relevant legislation and Federal and High Court opinions both before and after these guidelines that provide further information on the application of the law.

Nothing in these Guidelines is intended to conflict with the legislation or the proper understanding of what the Full Federal Court has said in Deledio, McKenna, East, Bushell, Byrnes, Owens and Bey or any other matter.

Signed

Neil Johnston

PRESIDENT

16 December 1998