Case: Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408
Outcome: referred to
Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 Mason CJ, Deane and McHugh JJ, said (at 413): Notwithstanding the submission of counsel for the Commission, s. 120(3) is not exhaustive of the content of s. 120(1). Sub-section (3) is concerned with whether "the material" raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis. At 414 their Honours said: The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. At 415 their Honours said: If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s. 120(1). That is to say, the commission must determine that the injury, disease or death was war caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination." Section 120(1) and (3) are affected by s 120A. Section 120A applies in respect of claims made under the VE Act on or after 1 June 1994. Section 120A and ss 196A to 196ZP were introduced in order to establish a more certain basis for the finding of a medical hypothesis and to ensure that ' medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion ' (see Explanatory Memorandum to the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 ). Such changes allow for the creation of a Statement of Principles ('SoP') to be determined by the Repatriation Medical Authority ('the Authority') which establish the relevant relationship between service and the death claimed by applicants for pensions. Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting, inter alia, the death of the person with the circumstances of any particular service rendered by the person is reasonable only if there is a SoP that upholds the hypothesis. Section 196B(1) authorises the Authority to formulate SoPs for the purpose of the VE Act. Section 196B(2) relevantly provides: (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of... death can be related to: (a) operational service rendered by veterans; or ... the Authority must determine a Statement of Principles in respect of that kind of... death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting [a]... death of that kind with the circumstances of that service. Believing that there was no applicable SoP, the Tribunal then considered whether there was a reasonable hypothesis connecting the veteran's death with his service (at [40]): As there is no SoP, we therefore proceed according to the principles outlined in Bushell and Byrne . Section 120 (3) of the Act provides, inter alia, that, for there to be no sufficient ground for determining Dr Walker's death was war caused, the material before us must not raise a reasonable hypothesis connecting the injury, disease or death with the service rendered by Dr Walker... The Tribunal concluded that a hypothesis was established. That hypothesis was that the veteran developed a heavy smoking habit during and in consequence of his service which caused IHD and that IHD was one cause of his death. The Tribunal found that such hypothesis was reasonable and that it was not satisfied beyond a reasonable doubt that any element of the hypothesis had been disproved beyond reasonable doubt. Having determined that there was no applicable SoP for heart failure or kidney failure, the Tribunal then applied ss 120(1) and 120(3) of the VE Act and had regard to the observations of the High Court in Bushell to determine whether there was a reasonable hypothesis that established the veteran's cigarette smoking habit was connected to his death. Having observed that there was evidence that the veteran's tobacco consumption had been between 30 and 50 pack years as estimated by Dr Butler, the Tribunal found that the hypothesis raised by the respondent linked the veteran's service with his death from heart failure. In such deliberation the Tribunal noted the evidence of Dr Butler that the requirements of the IHD SoP in respect of the veteran's tobacco consumption would be met. The Tribunal also observed at [52]: Given the terms of s 196B we accept that the existence of the SoP for IHD, which includes smoking as a factor, is a relevant matter in respect of this element of the hypothesis. Later in its decision the Tribunal observed (at [54]): As we understand the evidence of Dr Butler and Professor O'Rourke, they agreed that there was no evidence of damage as a result of ischaemia within the two weeks before Dr Walker's death, but previous damage could have contributed to heart failure. Further, Dr Butler said that there was 10 or 20 per cent likelihood of systolic failure on the basis of IHD. Professor O'Rourke also said that there was a less than 10 per cent probability that IHD played a role in Dr Walker's death. That is evidence from both doctors of a likelihood of a contribution from IHD to Dr Walker's death.