Contents Bill Rolfe appointed Repatriation Commissioner 2
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- The Tribunal’s decision
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What this case meansThe concepts under consideration in this case occur in the SRCA, the MRCA as well as the VEA. The general comments of the court indicate that the concept of ‘arising out of’ the relevant eligible service is very wide indeed but there still must be found a connection with the person’s service. In this case, Madgwick J placed emphasis on the ‘but for’ provision in section 6(1)(a). The ‘but for’ tests in the VEA and MRCA are of much more general application32 than the ‘but for’ test in the SRCA, which is limited only to violent acts. Whether the breadth of application given in Roberts’ case will be extended to the more general ‘but for’ test in the VEA and MRCA, or a more proximate cause will be required is a matter for speculation. There is currently very little recent case law,33 but given the convergence of the SRCA and VEA case law this might be what happens. Federal Magistrates Court of Australia 
Riley FM
[2007] FMCA 167 21 February 2007 Death – reasonable hypothesis – inability to obtain appropriate clinical management The veteran, died in 1997 from a low grade non-Hodgkin’s lymphoma. The veteran served in the Australian Army from 1949 until 1971. He had operational service in Japan from 1953 until 1955. During his period of operational service in Japan the veteran spent two periods in British Commonwealth Hospital in Japan. The first was for 13 days in 1954 for seborrhoeic dermatitis. The second was for 14 days in 1955 for an upper respiratory tract infection and hookworm. In 1976, the veteran, at the insistence of his employer, sought medical advice regarding a mass on the left side of his neck. A surgeon diagnosed the mass as a branchial cyst and advised that the matter be reviewed. The veteran did not seek review of the cyst. In April 1997, the veteran developed lethargy. On 10 July 1997, he was admitted to hospital having lost three stone in three months. Non-Hodgkin’s lymphoma was diagnosed and chemotherapy commenced on 17 July 1997. The hospital admission notes recorded that the veteran had a phobia of medical treatment and hospitalisation. The phobia was said to be due to a loss of control and the possible need for sedation. Numerous lumps were described in the notes as progressive lymphadenopathy over a period of months and the past history of a left branchial cyst was noted. The veteran died on 25 July 1997. Prior to this, the veteran had seen doctors on two or three occasions in 1957 and 1959 and was hospitalised twice in 1959. The Tribunal’s decisionIt was argued that the veteran had a phobia of doctors and hospitals as a result of his experiences in hospital during his operational service in 1954 and 1955. There were two hypotheses suggested:
With respect to the first hypothesis the Tribunal found that there was no evidence before it that the veteran had contracted non-Hodgkin’s lymphoma prior to or during his eligible service, and so it could not have been aggravated by that service. The Court’s decisionIn the Federal Magistrates court the applicant argued with respect to the first hypothesis that the Tribunal erred in finding at Step 3 of the Deledio process that the hypothesis was not reasonable because it did not fit the template in that there was no evidence of the veteran suffering from non-Hodgkin’s lymphoma prior to eligible service or during eligible service which could give rise to an inability to obtain appropriate clinical management of the disease. The applicant submitted that in fact this was fact finding to be applied at step 4 of the process where the standard or proof was ‘beyond reasonable doubt’. The Court did not accept this, saying: [58] In proceeding in that way, the Tribunal directly applied step 3 of Deledio. As stated by the Full Court at the end of its exposition of step 3 in Deledio: If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail. [59] In my view, the Tribunal correctly applied the first three Deledio steps. Because the first hypothesis did not fit within the template, it was unnecessary for the Tribunal to consider step 4. Accordingly, the Tribunal did not make the errors alleged in relation to the first hypothesis. With respect to the second hypothesis the Commission submitted that as the Tribunal had already found that the kind of death suffered by the veteran was non-Hodgkin’s lymphoma, it could not proceed as if another cause of death was ‘phobia’. As the SoP for non-Hodgkin’s lymphoma had to be applied and there was no factor relating to ‘phobia’, the claim had to fail. The Court said: [51] As there was only one kind of death, or cause of death, found by the Tribunal to have existed in this case, the claim had to fit within the template provided by the SoP for that kind of death for the claim to succeed. The claim did not fit within that template, so it necessarily failed. The Tribunal should not have looked at any alternative hypothesis because the SoP for non-Hodgkin’s lymphoma set out the matters that needed to exist for a claim based on the relevant kind of death to succeed. Accordingly, the Tribunal should not have looked at the second hypothesis. Any errors in the Tribunal’s consideration of the second hypothesis were immaterial to the result. [52] Sub-section 120A(4) of the Act does not assist the applicant. The Authority has made a SoP in relation to the veteran’s kind of death, namely, non-Hodgkin’s lymphoma. Accordingly, s120A(4) of the Act does not apply. Similarly, Repatriation Commission v Law (1980) 31 ALR 140 does not assist the applicant. That case predates the statutory regime that introduced the system of SoPs. Where there is only one cause of death, and a SoP that applies to that kind of death, that SoP governs the determination of whether the hypothesis that the death arose from relevant service is reasonable.
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