Ault and Repatriation Commission - [2001] AATA 977

DECISION AND REASONS FOR DECISION [2001] AATA 977

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/254

VETERANS' APPEALS DIVISION       )
           Re      AUDREY AULT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date30 November 2001
PlaceSydney

Decision The decision under review is affirmed.

[sgd] N Bell
Member
CATCHWORDS
Veterans' Entitlements – claim for widows pension – whether death was war-caused – reasonable hypothesis
Veterans' Entitlement Act 1986, sections 8, 120 and 120A
Langley v Repatriation Commission (1993) 30 ALD 8
McKenna v Repatriation Commission (1999) 86 FCR 144
Ogston v Repatriation Commission (1999) 56 ALD 789
Re Etheridge and Repatriation Commission (1998) 51 ALD 789
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Thompson [2001] FCA 341

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mrs Audrey Ault ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") on 19 June 1998 that the death of the Applicant's husband, Mr Francis Ault ("the Veteran") was not causally related to war service. The Respondent's decision was affirmed by the Veterans' Review Board on 22 January 1999. The parties elected to have the application considered on "the papers" and without a hearing. Documentary evidence before the Tribunal included the documents lodged under s.37 of the Administrative Appeals TribunalAct 1975 ("the T-documents"), reports from Drs P Graham, Radiation Oncologist; A Glanville, Thoracic Physician; A Langlands, Consultant Oncologist; clinical notes of Dr A Willis and clinical notes from Dubbo Base Hospital and St George Hospital. The Tribunal had the benefit of written submissions from both parties.
Background

It is common ground that the veteran was engaged in operational service from 18 February 1942 to 26 February 1946 in World War 2. Prior to his death, the veteran had the following disabilities accepted by the Respondent as being war caused:
Lumbar scoliosis  14 November 1986
Anxiety state  16 August 1990
Solar keratoses  16 August 1990
Sensori-neural deafness with tinnitus                 16 August 1990
Chronic bronchitis  30 September 1991

The veteran's non-Hodgkins lymphoma was rejected by the Respondent on 15 November 1993 as not being war caused and his malignant neoplasia-large cell non-Hodgkins lymphoma was treated by the Respondent on 7 July 1993 as "Eligible for Treatment-Not Service Related".
The veteran died on 21 October 1993 (T10). The cause of death is recorded on the veteran's death certificate as "Malignant hypercalcaemia – 1week" and "Non hodgkins lymphoma – 1 year". The Applicant claimed on 12 June 1998 for the veteran's death to be accepted as war caused. The Repatriation Commission decided on 19 June 1998 to refuse the claim. This decision was affirmed by the Veteran's Review Board on 22 January 1999.
Legislation
Section 8 of the Veterans' Entitlement Act 1986 ("the Act") provides relevantly:
8 War-caused death
(1)       Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)       the injury or disease from which the veteran died:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note:   The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise.
Sections 120 and 120A of the Act are also relevant. They provide:
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)       that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
…
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a) the kind of injury suffered by the person; or
          (b) the kind of disease contracted by the person; or
          (c) the kind of death met by the person;
as the case may be."

The Applicant's hypothesis

The hypothesis put forward by the Applicant is that her husband's death was contributed to by pneumonia, which was, in turn, contributed to by his chronic bronchitis. The veteran's chronic bronchitis was accepted by the Respondent as a war caused disease in 1991.
The Applicant points to the report of Dr Graham dated 2 June 1999 which says:
"Pneumonia is recorded as a contributing factor to his death on 21 October 1993. He had been troubled since his first admission to St George on 27th September with a large recurrent left pleural effusion, which was attributed to his lymphoma. His chest x-ray on 18th October reported an extensive opacity at the left lung base, which was reported to be a combination of pneumonia, and associated effusion. On his last admission he was hypercalcaemic and thought to be possibly septic (due to probable respiratory source) and was treated as such with antibiotics and a septic workup. Cultures of blood and urine were negative for bacterial infection. Nonetheless, in an unwell person with an effusion and hypercalcaemia, septic death due to pneumonia is one of the most common causes of death."
It is not contended by either of the parties that the disease or condition of pneumonia is the subject of a Statement of Principles ("SoP") pursuant to s.196B(2) of the Act. The Tribunal is satisfied that that is the correct position.
At the time of the veteran's claim to the Respondent in respect of his chronic bronchitis the SoP regime was not yet in force. His claim was accepted by the Respondent on the basis of his hypothesis of war causation being reasonable, of itself, without reference to any SoP. It is common ground that the veteran's hypothesis was supported by the report of Dr Glanville dated 5 September 1991 which stated:
"It is my considered opinion that if indeed the illness that he suffered whilst an inpatient in 1942 in Lithgow was measles complicated by pneumonia, then there is a high probability in this non-smoker that his chronic cough with sputum are directly related to that event.
Measles pneumonia occurring in adults is a significant illness with a high mortality rate even in the non-immunosuppressant population. The sequellae of this infection not infrequently includes chronic damage to airways manifests as bronchiectasis…
In short, from my review it seems likely that this veteran suffered measles complicated by measles pneumonia whilst a serving member. This may be a very serious infection indeed and not infrequently predisposed with sequallae such as his lung disease and it appears that this is a primary cause for this veterans ongoing cough and sputum, particularly as he has been a lifelong non-smoker."

It is also common ground between the parties that, were a claim to be made in respect of the veteran's chronic bronchitis by reference to the SoP now relevant to that condition (that is, SoP No. 73 of 1997 concerning chronic bronchitis and emphysema) he would not satisfy any of the factors required by that SoP to be satisfied before a reasonable hypothesis could be said to exist. Those factors are:
" (a) for chronic simple, chronic mucopurulent or asthmatic bronchitis only,
(i) being exposed to airborne irritants resulting in acute respiratory symptoms within the 48 hours immediately after that exposure, within the year immediately before the clinical onset of chronic bronchitis; or
(ii) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation; or
(iii) being exposed to airborne irritants resulting in acute respiratory symptoms within the 48 hours immediately after that exposure, within the year immediately before the clinical worsening of chronic bronchitis; or
(iv) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis, and, where smoking has ceased, the clinical worsening has occurred within one year of cessation; or
(b) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
(c) being exposed to mustard gas or Lewisite within the ten year immediately before the clinical onset of chronic bronchitis and/or emphysema; or
(d) being exposed to an irritant gas resulting in acute respirator symptoms occurring within the 48 hours immediately after that exposure, within the ten years immediately before the clinical onset of chronic bronchitis and/or emphysema; or
(e) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis and/or emphysema; or
(f) being exposed to mustard gas or Lewisite within the ten years immediately before the clinical worsening of chronic bronchitis and/or emphysema; or
(g) being exposed to an irritant gas resulting in acute respiratory symptoms within the 48 hours immediately after that exposure, within the ten years immediately before the clinical worsening of chronic bronchitis and/or emphysema; or
(h) inability to obtain appropriate clinical management for chronic bronchitis and/or emphysema."
There has been some confusion, it seems, as to whether the veteran was ever a smoker. The parties now agree that he was not.
The Applicant's contention of war caused death thus rests to a great extent on the Respondent's previous acceptance of the Applicant's chronic bronchitis as war caused. The Respondent has submitted that it is open to the Tribunal to redetermine each causal link in a chain of causation between the circumstances of service and the veteran's disability or death, notwithstanding that a disability in that causal chain had previously been accepted by the Respondent as war caused. The Respondent referred the Tribunal to several decisions of the Full Federal Court: Langley v Repatriation Commission (1993) 43 FCR 104 in this respect, and in McKenna v Repatriation Commission (1999) 29 AAR 70 and Ogston v Repatriation Commission (1999) 56 ALD 789 in relation to the submission that if a SoP is relevant to a sub hypothesis within the overall hypothesis said to connect service and injury, disease or death, then the hypothesis will not be reasonable unless the sub hypothesis fits the template of that SoP.
The Applicant referred the Tribunal to the decision of the then President of the Tribunal in Re Etheridge and Repatriation Commission (1998) 51 ALD 175, which the Applicant submits is authority for the proposition that, where pneumonia is a proximate cause of death, because there is no SoP for pneumonia, one goes directly to subsections 120(3) and (1) of the Act.
Before turning to the issues raised by these submissions, the Tribunal notes that Dr Glanville, in his report of 5 September 1991 requested by the Veterans' Review Board, and prepared without examination of the veteran, states his opinion that the condition suffered by the veteran was bronchiectasis rather than bronchosis. This, he said, was an important distinction because:
"The former is associated with structural damage to airways with impaired mucociliary clearing and hence dependency towards recurrent and ongoing infection.
The fact that Mr Auld (sic) first suffered what has been termed bronchitis whilst on service in the tropics may be coincidental, however, it is feasible that the conditions under which he was serving at the time were favourable for the development of certain bacterial infections.
I am not surprised that a chest x-ray on discharge was marked pass. The radiological diagnosis of brochiectasis is a difficult one about which there may be some debate even by experts. Certainly in the early stages of bronchiectasis, plane radiography is insensitive and thoracic CT scan or bronchiogram may be required to make a diagnosis.
Whether his local medical officer mentioned to him that his lungs had scar subsequent to previous pneumonia seems irrelevant to the issue at hand.
Regarding the report from Dr Hamill. To paraphrase this report the patient has chronic cough with purulent sputum and exertional dysponoea, but with well preserved spirometry. The chest x-ray was abnormal but the manner is not specified. These findings were thought to be compatible with chronic bronchitis which was significantly affecting his lifestyle."
The Tribunal notes that this distinction is also important because there exists a SoP, which concerns bronchiectasis, ie No. 59 of 2001, which revoked SoP No. 35 of 1997. Significantly, among the factors listed in the SoP are, in the case of SoP No.35 of 1997, "suffering from pneumonia before the clinical onset of bronchiectasis", and, in the case of SoP No. 59 of 2001:
" suffering from pneumonia before the clinical onset of bronchiectasis, with continual or recurrent respiratory symptoms in the interval between that episode of pneumonia and the clinical onset of bronchiectasis;"
A hypothesis that involves the condition of bronchiectasis has not been advanced by the Applicant. However, the Tribunal considers that it is incumbent on it to address the issue, given its view, expressed later in these reasons, in relation to the Applicant's sub hypothesis concerning chronic bronchitis.
The question of whether a veteran suffers or suffered from a disease is, according to the Full Federal Court in Repatriation Commission v Budworth [2001] FCA 1421, a question to be decided on the balance of probabilities.
The Tribunal notes that Dr Hammill, Physician, in a report dated 15 December 1989, after examining the veteran and considering x-ray and spirometry evidence, concluded that he had "chronic bronchitis and asthma". Dr Glanville was of the view, after reviewing the veteran's original service documents and medical file that he suffered from bronchiectasis. The Tribunal notes that Dr Glanville did not examine the veteran. Nor did he appear to specifically contradict or take issue with the report of Dr Hammill, which he referred to in the last numbered point in his report, reproduced above. There is no other evidence before the Tribunal in relation to the veteran's respiratory condition.
The Tribunal prefers the evidence of Dr Hammill given that he had the benefit of examining the veteran and did so close to the time when the x-ray and spirometry was done.
The definition of "chronic bronchitis" in SoP 73 of 1997 is:
"chronic bronchitis" means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases, attracting ICD code 491. The bronchitis may be present alone or may be accompanied by chronic airways obstruction or limitation, with or without a reversible component. There are four categories of chronic bronchitis: chronic simple bronchitis, chronic mucopurulent bronchitis, asthmatic bronchitis and chronic bronchitis with pulmonary obstruction. This definition specifically excludes bronchiolitis and chronic obstruction from bronchiolitis;"

The definition of "bronchiectasis" in SoP No. 59 of 2001 is:
"bronchiectasis" means irreversible focal or generalised bronchial dilatation of medium sized airways, attracting ICD code J47. It does not include congenital bronchiectasis, or bronchiectasis associated with cystic fibrosis, alpha-1-antitrypsin deficiency or other genetic disorders."
SoP No. 35 of 1997 (the earlier bronchiestasis SoP) is in similar terms. While there is some evidence of the veteran's cough and sputum production (see the statement dated 11 March 1991 of Mr Francis Fish at page 2 of the additional documents from the department medical file in relation to chronic bronchitis and the statutory declaration dated 28 February 1991 of the veteran's daughter, Ms Beverley Ault at page 19 of those documents), there is no evidence of any irreversible dilation of medium sized airways as in the bronchiectasis SoP definitions.
The Tribunal therefore finds, on the balance of probabilities that the veteran suffered from the respiratory disease of chronic bronchitis.
The Tribunal turns now to the issue of whether the previously accepted condition of chronic bronchitis may found the Applicant's hypothesis notwithstanding its failure to conform with the current SoP.
The Full Federal Court in Langley v Repatriation Commission (supra) (Spender J dissenting) said (at 24):
"24. Brennan J in his minority judgment in O'Brien found it unnecessary to decide the issue of whether the tribunal was bound to accept an earlier determination when reviewing a claim in respect of a different condition. However, his Honour said at CLR 446; ALR 137:
" Had it been necessary to decide the question, it seems to me that there are difficulties in the way of holding that an unreviewed board decision accepting a condition as being attributable to war service is binding on the AAT when it is reviewing a decision made on a claim in respect of a different condition. No issue of estoppel arises, nor does a finding in the later proceedings affect an entitlement flowing from the earlier finding."
25. We consider his Honour's comments correctly reflect the law. In our opinion, there is no prohibition on a decision-maker in considering afresh a new claim for a different condition by reason of an earlier determination.
There is a fundamental difference between the consideration of a fresh claim for a pension in respect of incapacity from an injury or disease that is different from an injury or disease the subject of a prior determination of the commission, though involving some facts and circumstances common to both the earlier determination and the later claim. Subject to specific statutory provisions enabling it to do so (see s 31 of the Act) the commission cannot review the earlier determination; but it may consider afresh the facts which underpinned the earlier determination where it is necessary do so, so that it may discharge its statutory function of determining the later claim. The later determination does not affect any entitlement of the veteran arising from the earlier determination."
On this basis, the earlier determination of the Respondent that the veteran's chronic bronchitis was war caused does not prevent the Tribunal, in the context of this new and different claim by the Applicant, from considering whether the veteran's chronic bronchitis was war caused.
The Full Federal Court in McKenna v Repatriation Commission (supra), in which a veteran's hypertension had been accepted in 1985 as service-related under s 101 of the Repatriation Act 1920 (Cth), said:
"18. The first step that the Tribunal was required to take was to consider all of the material before it and determine whether that material pointed to a hypothesis or hypotheses connecting Mr McKenna's ischaemic heart disease and his atherosclerotic peripheral vascular disease with the circumstances of the particular service rendered by him (see ss 120(3) and 120A(3)). As Goldberg J pointed out, a relevant hypothesis had to consist of a link or links which connected, at the one end, the disease which was the basis of Mr McKenna's claim under Part II of the Act with, at the other end, the circumstances of the particular service rendered by Mr McKenna. The fact that in 1985 Mr McKenna's hypertension was accepted as service-related under s 101 of the Repatriation Act 1920 (Cth) thus had no direct relevance so far as the identification of a relevant hypothesis for the purposes of s 120(3) of the Act was concerned…

20. Since the Authority had determined Statements of Principles in respect of the kinds of diseases suffered by Mr McKenna (s 120A(4)(b)), the next step which the Tribunal was required to take was to form an opinion whether the hypotheses pointed to by the material before the Tribunal were reasonable. It was only entitled to form the opinion that they were reasonable if they were upheld by, in the sense of consistent with, the relevant Statements of Principles. In our view, for either of the hypotheses to be upheld by a Statement of Principles, as required by s 120A(3) of the Act, each of its sub-hypotheses would have to be so upheld. A complex hypothesis (ie one comprising more than one element or part) can be no stronger than each of its elements or parts…
28. In view of the mischief which the Amendment Act was intended to address, as revealed by the Explanatory Memorandum, it is not a matter of surprise that ss 120 and 120A of the Act may have an operation which is inconsistent with a determination made before the enactment of the Amendment Act. In effect, a new and quite different forum has been identified as the appropriate place for the resolution of difficult issues of medical causation arising on or after 1 June 1994. Having regard to the terms of s 196B(2) of the Act, it must be concluded that the Authority has formed the view, contrary to the expert view advanced before the Tribunal, that the factors of stress and anxiety are not factors which can establish a causal link between operational service rendered by veterans and hypertension. However, it is of importance to note that the validity of determinations reached before s 120A of the Act came into operation is not undermined by the 1994 amendments to the Act. They remain in full force and effect."

The application of these principles would require the Applicant in this application to show that the sub hypothesis involving chronic bronchitis can be upheld by the SoP concerning chronic bronchitis. It cannot be so upheld.
However, the Applicant directed the Tribunal's attention to the following passage in McKenna as indicating that the above principles have no application in a case where, as in the present application, one of the sub hypotheses involves a disease in respect of which there is no SoP:
"27. This case does not call for consideration to be given to the situation in which a hypothesis raised by the material before the decision maker consists of two or more sub-hypotheses and at least one, but not all of the of the sub-hypotheses, relates to a kind of injury, disease or death concerning which the Authority has neither determined a Statement of Principles nor declared that it does not propose to make such a Statement of Principles. Neither party made submissions touching on this eventuality. We do not consider it appropriate in the circumstances to give consideration to the way in which ss 120 and 120A would operate in such a situation. It may be, however, that insufficient consideration was given by those who drafted the Amendment Act to the possibility of complex hypotheses and to the interrelationship of ss 120A(3) and (4) in such circumstances."
The Tribunal does not consider that the above passage amounts to an indication by the court that the principles enunciated by it have no application to the circumstances of the present application. The Court does not proceed to analyse those circumstances or offer any comment on how the principles it has enunciated would (or would not) apply to them. It is also significant that their Honours do not differentiate between the sub-hypotheses that might be relevant to those circumstances, ie, the sub-hypothesis most immediately proximate to the injury, disease or death, or the sub-hypothesis closer to the circumstances of the veteran's service.
In Etheridge v Repatriation Commission (supra) Mathews J, then President of the Tribunal, considered the issue of whether intermediate steps in an hypothesis' causation process should be subject to the SoP regime notwithstanding that there is no SoP covering the immediate (hypothetical) cause of a veteran's death. Her Honour said at p 184:
"31.I am thus of the view that "the kind of death" referred to in subs 120A(4) requires consideration of the ultimate or proximate cause of death met by the veteran. If there is no SoP relating to that ultimate or proximate cause, then one reverts to the pre 1994 situation and goes direct to subss 120(3) and (1). It may be, as in this case, that there is a SoP in relation to one of the intermediate causative conditions. In that event an applicant might choose to use it in order to support a hypothesis connecting that condition with the veteran's war service. But it will not be necessary to do so. The failure of the SoP to support the hypothesis will not be fatal to the applicant's case if the hypothesis is otherwise reasonable under subs 120(3)."
Her Honour arrived at this view after considering the terms of section 120A(4) of the Act. She said at pp183-184:
"Subsection 120A(4) refers to "the kind of death met by the person" (emphasis added). This focuses attention upon the condition, which caused the veteran's death, not upon any hypothesis linking death with war service. If, as here, there is no SoP in relation to that condition, then in my view subs 120A(4) applies, and the matter falls to be considered under subs 120(3) in accordance with the principles enunciated in Bushell v Repatriation Commission (1992) 175 CLR 408, Byrnes v Repatriation Commission (1993) 177 CLR 564 and East v Repatriation Commission (1987) 16 FCR 517. I do not see this as circumventing the purpose of the 1994 amendments. To the contrary, it involves a literal application of the statutory provisions."
The Respondent submitted that Etheridge (supra) must be distinguished because in that case the veteran's death certificate read (a) respiratory failure and (b) pneumonia and there was no dispute that pneumonia was the "kind of death" suffered by him and there was no contention that any other "kind of death" should also be considered. In this case, however, the Respondent submits that the veteran's "kind of death" was not pneumonia but was, as noted on the veteran's death certificate, malignant hypercalcaemia and/or non hodgkins lymphoma. The Tribunal considers this submission to have some force. The question of the "kind of death" suffered by the veteran is a live issue between the parties in this application and may yield more than one answer. It is significant that in Etheridge Her Honour said at 183:
"27. In many cases there might be a fine line between situations where, on the one hand, there are two independent, alternative causes of death, and those where, on the other, there is a single cause of death which is precipitated or contributed to by another condition. This is a difficulty which, as Mr Hanks observes, can only occur in relation to claims arising from the death of a veteran. The categorisation of an injury or disease is not subject to the same difficulties as the identification of the proximate causes of a death. However it is unnecessary to discuss this distinction in any detail here, as both parties acknowledge that in Mr Etheridge's case there was only one ultimate cause of death, namely pneumonia."
The Applicant in this case does not deny that non-Hodgkins lymphoma was a cause of the veteran's death and does not contend that it is related to the veteran's service.
The Tribunal notes that Her Honour's views were expressed following her conclusion that, as the circumstances of the veteran in that case fell within the terms of another SoP and he would succeed on that basis, the issue as to whether the sub-hypothesis should be subject to the SoP regime was "an issue of principle only". The Tribunal considers that it does no violence to Her Honour's judgement to distinguish the views expressed by her from the circumstances of this application.
The Tribunal also had regard to the comments of Emmet J in Repatriation Commission v Thompson [2001] FCA 341 which followed a reference to the Explanatory Memorandum to the 1994 amendments to the Act. That case concerned the question of whether a SoP determined after an application for review to the Tribunal but before the Tribunal's determination should be applied by the Tribunal. However, His Honour's comments are pertinent to the issues in this application. He said:
"58. Those observations are of marginal assistance in resolution of the question before the Court. However, they do suggest an intention on the part of the Parliament to ensure that all claims made after 31 May 1994 will be determined in accordance with Statements of Principles where such Statements of Principles exist. That intention is evinced in the language of s 120A itself."
The Applicant's submission that the SoP concerning chronic bronchitis has no application in this matter is underpinned by the view that the overall hypothesis put forward by the Applicant, and the kind of death central to it, should be treated as an entity which subsumes any intermediate or sub-hypotheses. On this basis, it would be only the ultimate cause of death that would determine, according to the existence or otherwise of a relevant SoP, whether the SoP regime applies to the overall hypothesis. This appears to be at odds with the view of the Full Federal Court in McKenna (supra) which said at 20:
"A complex hypothesis (ie one comprising more than one element or part) can be no stronger than each of its elements or parts."

In McKenna, the Full Federal Court concluded that:
"a new and quite different forum has been identified as the appropriate place for the resolution of difficult issues of medical causation arising on or after 1 June 1994"
and that
"(h)aving regard to the terms of s 196B(2) of the Act, it must be concluded that the Authority has formed the view, contrary to the expert view advanced before the Tribunal, that the factors of stress and anxiety are not factors which can establish a causal link between operational service rendered by veterans and hypertension."

On the same grounds, the Tribunal concludes that the Authority has formed the view that suffering measles pneumonia is not a factor that can establish a causal link between operational service rendered by veterans and chronic bronchitis. That is, the decision in McKenna applies to require compliance by the Applicant's sub-hypothesis concerning chronic bronchitis with the relevant SoP. Its undisputed failure to do so renders it, and therefore the Applicant's overall hypothesis, not reasonable within the meaning of the Act.

In summary, the hypothesis raised by the Applicant was that the veteran died of, among other things, pneumonia and that his pneumonia was contributed to by his chronic bronchitis, which, in turn, it is contended, was war caused. The veteran's chronic bronchitis may be assessed as war caused or not by reference to either the SoP regime, in accordance with section 120A of the Act or by reference to section 120 of the Act. For the reasons set out above, the Tribunal has concluded that such assessment must be done by reference to the SoP relevant to the condition of chronic bronchitis, that is, SoP No. 73 of 1997. It is not contended by the Applicant that the veteran, in relation to his chronic bronchitis, satisfied any of the factors set out in that SoP and the Tribunal concludes that he did not. It follows that, as the first causative link in the Applicant's hypothesis fails to connect the veteran's chronic bronchitis with his war service, the remainder of the hypothesis also fails.
Decision
The Tribunal affirms the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member
Signed: R Quinn .....................................................................................
Associate

Date of Decision  30 November 2001
Solicitor for the Applicant         Mr R Sherlock
Solicitor for the Respondent    Ms P Hook