Case: Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82
Outcome: cited
The operation of the reasonable hypothesis mechanism and the reverse onus of proof under the Act are explained in Repatriation Commission v Deledio [1998] FCA 391 ; (1998) 83 FCR 82 at 97-98. 3 The hypothesis said to be raised by Mr Goodwin's claim for the purposes of s 120A of the Act relied on the Statement of Principles Concerning Alcohol Dependence or Alcohol Abuse SoP No 76 of 1998. It was that (i) "severe stressors" related to his service (ii) caused alcohol dependence or abuse which (iii) caused the cirrhosis which (iv) caused the liver cancer. Steps (iii) and (iv) were not in dispute. 4 There was an alternative hypothesis, relying on SoPs No 1 of 2000 and No 101 of 2007, that the stressors caused generalized anxiety disorder which in turn caused the alcohol dependence or abuse and the subsequent cirrhosis and cancer. This was rejected by the Tribunal and was not relied on by the respondent on the present appeal. 10 The Tribunal was required to follow the approach explained by the Full Court in Deledio at 97-98: 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the [Repatriation Medical] Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. 11 Relevantly for present purposes (ie ignoring the anxiety disorder based hypothesis which is no longer relied on) the Tribunal at [65] found that a reasonable hypothesis relating to a causal connexion between Mr Goodwin's operational service had been raised, namely that a stressor of sufficient severity might have resulted in the worsening of pre-existing alcohol abuse or dependence. (Emphasis in original.) 12 The Tribunal said at [66], after referring to a number of medical reports, that it was unable to find in the reported histories the necessary criteria for alcohol dependence "and thus (found) that Mr Goodwin suffered from alcohol abuse ". (Emphasis in original.) 16 In my opinion, the Tribunal erred by failing to form an opinion whether the alcohol abuse hypothesis fitted, or was consistent with, SoP No 76 of 1998 ( Deledio step 3). The Tribunal did not identify, in the material before it, necessary elements which the SoP required. 17 Although there was ample material as to Mr Goodwin's heavy drinking while in Vietnam, the diagnostic criteria for "alcohol abuse" in cl 2(b) of the SoP requires very specific manifestations (as set out at [5] above): "recurrent" use resulting in failure to fulfil major role obligations or in physically hazardous situations, or recurrent alcohol-related legal problems or social or interpersonal problems. There was no attempt to identify such manifestations in the material. 18 Further, the Tribunal did not attempt to identify the date of clinical onset or clinical worsening of alcohol abuse so as to see whether the same occurred within two years of Mr Goodwin's experiencing the alleged stressors. This was a factor which had to exist before it could be said that a reasonable hypothesis had been raised connecting the alcohol abuse with the circumstances of Mr Goodwin's service: cl 5(b) and (d). 22 Since this matter will have to be remitted, I do not think I should say anything further about the merits of the events alleged to constitute severe stressors. At Deledio step 3, a fact finding exercise is not involved (in contrast to step 4). 23 The appeal will be allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal differently constituted, for further hearing and determination according to law. In its notice of appeal the Commission did not expressly seek an order for costs. Since it is not suggested that the respondent was responsible for the errors of the Tribunal, I do not propose to make any order for costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 5 August 2008 Counsel for the Applicant: J K Macdonnell Solicitors for the Applicant: Australian Government Solicitor Counsel for the Respondent: D de Marchi Solicitors for the Respondent: De Marchi &amp; Associates Date of Hearing: 23 July 2008 Date of Judgment: 5 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1132.html