Case: Repatriation Commission v Deledio (1998) 83 FCR 82
Outcome: cited
According to the Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, a four step process is required under ss120 and 120A of the Act to determine if an injury or death is war-caused. These four steps can be summarised as: &#8226; the material before the Tribunal is to be examined to see if it points to a hypothesis connecting the death with the circumstance of the veteran's service. In the absence of a hypothesis, the claim fails; &#8226; if the material does raise a hypothesis, the Tribunal must see if there is a Statement of Principles (SoP) in force. If there is no SoP in force that fits the hypothesis, it will be taken to not be reasonable and the claim fails; &#8226; if an SoP is in force relevant to the hypothesis, the Tribunal will consider if the hypothesis is reasonable. If the hypothesis is consistent with the template found in the SoP, the hypothesis is reasonable. If the hypothesis fails to fit within the template, the claim fails; &#8226; the Tribunal must then consider whether it is satisfied beyond all reasonable doubt that the death was not war-caused. If it is not so satisfied, the claim succeeds. If it is so satisfied, the claim fails. 23 Further, the Federal Magistrate was correct in stating that there was only one cause of death. Mr Gittins did not die of phobia, but because of an inability to obtain clinical management for non-Hodgkin's lymphoma. As there was a relevant SoP for that cause of death, it had to be considered. On having considered the foregoing, it was established by the Court below that Mr Gittins' circumstances did not fit the template contained in the SoP. That was the end of the matter. The claim should have been rejected on this basis alone. However, Riley FM correctly determined that the Tribunal properly applied "the first three Deledio steps" and that it was unnecessary for the Tribunal to consider step four. The Federal Magistrate also correctly determined at [52] that the SoP that applied to the kind of death found "governs the determination of whether the hypothesis that the death arose from relevant service is reasonable." 24 Counsel for Mrs Gittins contended that the Tribunal "implicitly" found that phobia was one of the causes of death. An examination of the Tribunal's reasons reveals no such implicit finding. In any event, a finding should be precise, not implicit. In its reasons for decision, the Tribunal refers at [1] to death, "from a low grade non-Hodgkin's lymphoma". "Phobia of doctors" is an aspect of, or a reason for, the "inability to obtain appropriate clinical management". It was not the actual medical cause of Mr Gittins' death. In fact, at [17], the Tribunal found that any connection between Mr Gittins' death and his experiences in Japan (that is, his phobia) were "too remote and too tenuous". The Tribunal said at [85]: There is no evidence to substantiate a claim that Mr Gittin's hospital experiences in 1954 and 1955 caused his phobia. Nor can the claim be categorically refuted. There is merely insufficient evidence. The Tribunal also said at [87]: Mr Gittins was hospitalised after his operational service on three occasions and also saw several doctors in relation to minor illnesses, discharge medicals and the like, and on no occasion reported a phobia relating to medical or hospital treatment. 25 It is unnecessary for the Court to deal with the claim that the Tribunal failed to provide adequate reasons for its rejection of the second hypothesis in circumstance where it was not necessary for the Tribunal to consider it.