Case: Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80
Outcome: cited
The applicant cited Somerset v Repatriation Commission [2005] FCA 1399 as authority for the proposition that failure to diagnose may not necessarily constitute an inability to obtain appropriate clinical management. However, in Somerset Greenwood J plainly left open the possibility that it may do so; see [36]. Somerset is distinguishable on the grounds that, in that case, there was no basis for believing that the veteran was suffering from the disease during his period of service. In contrast, the expert opinion of Dr Waring is that there was adequate evidence that Mr Money had IFA "at least as early as 30 April 1979". As indicated above at [27], Dr Musk was inclined to a similar view. In Repatriation Commission v Wedekind [2000] FCA 649 , Kenny J was prepared at [17] to assume, without deciding, that the Tribunal may reasonably have been satisfied that diagnostic failure could lead to an inability to obtain appropriate clinical management. Given that a beneficial approach is called for in dealing with this legislation ( Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80) , it seems to me that a person in Mr Money's position may well be prevented from obtaining appropriate clinical management of a condition by lack of awareness that they suffer from it. 41 The applicant submits that the correct construction in this matter is that adopted in Brew v Repatriation Commission [1999] FCA 1246 ; (1999) 94 FCR 80 , namely, that as a matter of practical reality, "inability" requires barriers to obtaining appropriate clinical management. The applicant submits that it could not be said that the same outcome would have resulted if the Tribunal had considered this meaning. I do not think that the applicant has been able to establish this. As Burchett J expressed it in Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 469, the issue "turns on whether the Tribunal in reality mistook its legal task, or whether it merely strayed into a measure of obscurity in the statement of its reasons, the actual meaning of which can nevertheless be ascertained by some perseverance, and being ascertained, reveals no error". 42 The Tribunal clearly found that there was an inability to obtain appropriate clinical management; it expressly states so in [82] of its reasons. Although the Tribunal made no express findings as to why the identified systemic failures in the naval medical system presented a barrier to Mr Money receiving appropriate clinical management, it is implicit in its reasons that Mr Money was reliant upon the Navy's medical system during his period of service. As a matter of practical reality, a person in Mr Money's position could not reasonably have been expected to take steps to obtain medical care beyond that offered by the Navy; see Brew at 88. The applicant has not demonstrated that the Tribunal applied an incorrect construction. 43 In addressing the question of whether the inability to obtain appropriate clinical management had aggravated Mr Money's IFA, Dr Waring expressed slightly different opinions. In the earlier report (13 April 2004) Dr Waring discussed the usual form of treatment in the 1970s which was usually high dose prednisolone, an immunosuppressant. He said that it was "serendipitously appropriate" that Mr Money was not given this treatment because more recent studies have "not demonstrated any benefit from prednisolone therapy for the interstitial lung disease that has been diagnosed on lung biopsy". He added: Having said this, the majority of chest physicians still consider a trial of prednisolone therapy, especially in young otherwise fit patients, who are likely to tolerate the drug relatively well. [Emphasis added] 44 Dr Waring also commented that the naturally slow progression of Mr Money's disease would not have been expected if it had been diagnosed in the 1970s, and added that, in retrospect, this slow progress meant that the side effects of prednisolone therapy would have out-weighed any benefit he might have received had he been given this treatment. He summarised his view by saying that "the lack of appropriate clinical management may have, but probably has not aggravated his condition". [Original emphasis]