Barton and Repatriation Commission
[2005] AATA 15
•10 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 15
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/1088
VETERANS' APPEALS DIVISION ) Re MARGARET BARTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date10 January 2005
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – widow’s claim – eligible service – prior consumption of cigarettes and alcohol – increased consumption after discharge – whether death war caused – whether injury or disease attributable, arose out of or materially contributed by service – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) s120(4), s120B(3), s8(1) (a), (b) and (d) and s196B(14)
Repatriation Act 1920 s101Acts Interpretation Act 1901
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Tuite (1993) 29 ALD 609
Re Corbett and Repatriation Commission [2001] AATA 498
Re Walmsley and Repatriation Commission (AAT 11153, 12 August 1996)
Roncevich v Repatriation Commission [2003] FCAFC 146
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Bendy (1998) 18 ALD 144
Critch v Repatriation Commission (1996) 43 ALD 574
Brennan v Repatriation Commission [2004] FCA 1431
REASONS FOR DECISION
10 January 2005 Mr John Handley, Senior Member 1. The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 22 July 2002. The VRB then decided to affirm a decision previously made by the respondent on 11 July 2001. The respondent then decided that the applicant’s claim for widows’ pension be refused.
2. Mrs Barton applies as the widow of the late Eric James Barton who died on 26 July 1993 and who was then aged 83 years.
3. The cause of death was certified as “Broncho Pneumonia/days; Aspiration Pneumonia/weeks; Parkinson’s Disease/years; Congestive Cardiac Failure/years”.
4. The late Mr Barton served as a member of the Australian Army within Australia between 17 July 1942 and 6 December 1944. Accordingly he was engaged in “eligible service” and the respondent’s liability therefore will be determined upon the balance of probabilities.
5. The case on behalf of Mrs Barton was to associate death with the effects of ischaemic heart disease and hypertension. It was put that in so far as the association with ischaemic heart disease is concerned, the deceased suffered from hypertension and had acquired a smoking habit by service. With respect to the association between service and hypertension it was submitted that the deceased acquired an alcohol habit by service. The applicant relied on Statements of Principles (“SOP”) which will be referred to later in these reasons. It was also submitted – but without specific reference to a SOP or a factor within a SOP - that an association existed between service and an “anxiety condition” which also had a relationship to smoking and alcohol consumption.
6. The respondent conceded that the deceased suffered from ischaemic heart disease and from hypertension but submitted that a connection did not exist between service and death by these conditions. The respondent also submitted that the deceased did not suffer from an anxiety condition and by reference to reports found within the T-documents, it was submitted that in fact the deceased suffered from “cardiac neurosis”.
7. The first day of hearing was convened in Ballarat on 2 September 2004. Mr De Marchi appeared on behalf of the applicant and Ms Cassamento appeared on behalf of the respondent. It was then learnt that Mrs Barton was 90 years of age and was frail and very unwell. She was unable to give evidence. The applicant’s children, Alan Barton and Edna Harmon, both gave evidence as did Wendy Ann Barton, the wife of Alan Barton.
8. A number of documents were received into evidence and will be referred to later in these reasons.
9. Mrs Barton, the applicant in these proceedings, lodged a Proof of Evidence prior to the commencement of the proceedings which was received into evidence and is reproduced as follows (Exhibit E):
My Husband went off to war – a gentle quiet man.
But when he came home he was a different person. He said he had a fall. He was not the same man when he returned. He attended a doctor Prott who prescribed Valium Tablets for him. He was always taking Valium tablets. On one occasion he drove on the wrong side of the road.
He also had fainting [sic] turns & go white in the face, we would have to stop for 20 minutes & then he would come good.
He refused to talk about army matters.
At times he was Violent to me & then to our son.
10. In the cross-examination of the three witnesses in Ballarat, Ms Cassamento extensively referred to parts of the T-documents which purported to identify the smoking and alcohol history of the deceased. She referred to histories taken by doctors over many years from the deceased where it would appear by reference to the documents that he either denied consuming cigarettes or alcohol or he admitted a very modest pattern of consumption with respect to these substances. For reasons which will follow later I am satisfied that the deceased did consume cigarettes and alcohol at a rate far greater than that which he disclosed to his doctors and I am also satisfied therefore that the evidence given by Mr and Mrs Barton and Mrs Harmon with respect to their observations of the deceased with respect to his consumption of alcohol and smoking of cigarettes is truthful.
alan james barton
11. Mr Barton lodged a Proof of Evidence prior to the commencement of the hearing which was received as Exhibit D and is reproduced as follows:
I am the eldest son of Margaret Barton and the late Eric Barton. I was nearly eleven when my father went to war and 13½ when he returned. At that stage Mum had six children to rear and later eight and the situation was extremely difficult for her.
I remember my father being mild mannered and jovial before the war. He smoked & drank on rare occasions.
He came home a changed man, argumentative, depressed and very nervous. His smoking multiplied and his level of drinking vastly increased. He refused to talk about his service and in every respect became a changed man.
I have always felt that one of the reasons for triggering Dad’s moods, caused by the war, could have been part of the following:-
Dad was an only child, & on marrying Mum he became very close to my Uncles (both single) Tom & Jim McCallum. Both Uncles helped us during the depression as we were a poor large family.
Uncle Jim was killed at AL ALAMEIN & Uncle Tom came home from Tobruk with one eye blown out. Dad never got over it.
The war did change our Dad and definitely caused illness (Heavy smoking, drinking, depression etc caused Heart trouble Hypertension etc) and in my heart and soul Mum deserves to be recognized as a War Widow.
12. Mr Barton is the eldest child of the deceased. He said that he was 11 years of age when his father enlisted. He recalled that his father “signed up” for overseas service but became enlisted in a motor transport battalion that served in Australia only.
13. Mr Barton said that there were two Uncles – Jim and Tom who had both served overseas. His Uncle Jim had been killed at El Alamein and his Uncle Tom had returned from service in Tobruk and had “lost an eye”. Both Uncles were brothers of Mrs Barton, the applicant in these proceedings. Mr Barton said that his father reacted very badly to the death of Uncle Jim and to the injury to Uncle Tom. He said his father was very close to both of them who had both supported his family during the depression. He recalled that when Uncle Tom returned from service he was “shell shocked, nervous and would wake up at night screaming”. His Uncle Tom used to live with his family extensively after service and Mr Barton said that his father “felt a lot of his pain because they were very close”.
14. Mr Barton said that when his father left the family home to commence his service he was then consuming half an ounce of roll your own tobacco per fortnight and would consume one bottle of beer per week on weekends. After discharge he recalled that his father had “changed a lot” and he observed him to be a heavy smoker and increased his smoking habit over the years. He was also heavily consuming alcohol. He recalled that his father initially was smoking two ounces of tobacco per week but increased it eventually to four ounces per week. He recalled that his father continued to smoke roll your own cigarettes at that rate until 1989. Mr Barton also recalled that his father progressively increased his alcohol consumption. He believed that it was because his father was often depressed and withdrawn. He recalled his father as being a jovial person prior to service and had not been depressed.
15. Subsequent to service his father did not enjoy good health and was frequently attending the Repatriation Hospital in Heidelberg for treatment for which Mr Barton understood was stomach ulcers and depression. He recalled that his father was frequently consuming antacid medication and his depression deteriorated to the extent that he was eventually prescribed Valium.
16. Mr Barton also understood that his father was treated by Dr Martin in Ballarat who eventually diagnosed congestive cardiac failure and he recalled that his father suffered from that condition together with the presence of chest pain during the last ten years of his life. He also understood that his father suffered from hypertension.
17. In cross-examination Mr Barton recalled that his Uncles Tom and Jim lived with his family for some years prior to service. He said they both contributed to their family either by contributions of money or by buying food. Mr Barton recalled that during the years of the depression, continuity of employment could not be assumed and his father was often out of work. He said that his family was grateful for the assistance given to them by his Uncles. He acknowledged that his father did worry about his ability to provide for his family and also whether he would have continuing employment.
18. Mr Barton said that his father and Uncles Tom and Jim enlisted in the same year. He understood that his father learnt of the death of his Uncle Jim whilst he was serving in the transport battalion by a letter he received from his mother. He understood that he would have learnt of the injuries of his Uncle Tom in the same manner.
19. Mr Barton said that his Uncle Tom suffered from nerves, was shell shocked and would wake up screaming for about ten years after he was discharged from service. He said that those symptoms slowly diminished and whilst he was aware that his father was close to his Uncle Tom he was visibly affected by his injuries. He thought that his father – who was an only child – treated his Uncles Jim and Tom as if they were brothers and was deeply affected by their war-time experiences.
20. With respect to his father’s smoking habit Mr Barton acknowledged that prior to service his father would smoke half an ounce of tobacco per fortnight only when he could afford to buy it. After service he was adamant that his father was smoking two ounces of tobacco per week. He said at that time his father had regular employment and could afford to buy tobacco. Mr Barton said that he left home a few years before he was married in February 1959 and had a distinct recollection of his father then smoking four ounces of tobacco per week. Initially he lived in Ballarat and saw his parents daily but in the early 1960’s when he moved to Melbourne he saw his parents once per week. He recalled that his father continued to smoke heavily and drink alcohol to excess. He said that his father continued to smoke cigarettes until the late 1980’s. This was despite him being diagnosed later with Parkinson’s Disease. He recalled that his father would have a tremor in his hands. He would roll cigarettes for his father who would be able to smoke then when the tremor did not exist but when it did – if he was then smoking – either he or his mother would take the cigarette from him.
21. When the references within the T-documents to the deceased’s smoking habits were put to Mr Barton he reacted – as was observed – with incredulity. He initially thought that his father might have given up smoking for a period of time but as the continuing references to the denial of the smoking habit were put to him he denied the accuracy of the history given by his father to doctors. He reacted in a similar manner when the alcohol history contained within the T-documents was also put to him. This was despite his father being employed as both a bus driver and as a truck driver when it might have been expected that his alcohol consumption – at least during the working week – would have been modest or non-existing. He said that his father drank alcohol most nights and most weekends he would attend the Warrandyte Hotel and consume alcohol. On the occasions that he visited his father at home he observed him to be consuming alcohol at a far greater rate than was disclosed in the T-documents.
22. As to his father’s health generally Mr Barton said that his father did not have “stomach trouble” before service but subsequently his mother took care in the food which was cooked because some foods did upset him. He recalled that he was frequently consuming antacid medication. He also recalled that his father was “concerned” about continuing chest pain but denied that his father expressed any concern about the possibility of suffering from a “heart attack”. He was aware that his father was prescribed, and did consume, Valium medication, which he understood was consumed until the late 1980’s.
23. In re-examination Mr Barton said that on some occasions that he visited his father on weekends they would each drink about “a dozen glasses of beer throughout the day and a few bottles at night”. He said that he had no recollection of his father ever giving up cigarettes or ever attempting to cease smoking. He thought that his father would not want his doctors to know about his smoking habit but he could not offer a reason why his father would deny the habit. Mr Barton said that he had a distinct recollection of his father frequently removing tobacco from a tobacco pouch to roll his own cigarettes. He was emphatic in his denial of his father having ceased smoking more than 40 years prior to death.
edna may harmon
24. Mrs Harmon is the sister of Alan Barton and the daughter of the applicant in these proceedings. Mrs Harmon prepared a Proof of Evidence prior to the commencement of the hearing which was received as Exhibit 1. That statement is relevantly reproduced as follows:
1.I am the daughter of the late Eric Barton.
2.My father served in the Australian Army7 from 17 July 1942 to 6 December 1944. He served within Australia and had rendered eligible service.
3.My parents married around 1930. My mother 16 years of age, and my father was 20 years of age.
4.My mother has told me that prior to service my father was a social drinker and a light smoker only, smoking around 5 cigarettes per day, and having a glass of beer on the Sunday with the family roast.
5.My mother has told me that during his period of service my father increased his level of smoking to around 20-30 cigarettes per day. He continued at this level until 1998.
6.My mother told me that she noticed that my father had increased his level of drinking quite significantly after service. I was 11 years of age when my father was discharged from the Army. I remember him drinking very heavily. He would go to the hotel after work. He would bring home large bottles of beer and he would consume these at night. At weekends he would consume more. My father was often intoxicated.
7.When my father was intoxicated, he would become violent towards my mother. I was very frightened of him. He would go off for days and would not talk. No-one could talk to him. He would close up.
8.I am the oldest daughter, and my mother would often comment to me. She told me that he was very much a changed man from the one she married and what he was like prior to his service, compared to after service. Prior to service, he was affable and easy going. He had a complete change of personality.
9.My father suffered from an anxiety condition, which as far as I am aware, commenced during his service. He attended a Dr Prott GP, in Railway Parade, East Ringwood, for about 7 years, about 20 years ago. Dr Prott prescribed Valium in vast quantities, but I don’t think the valium appeared to help him much, although it did make him sleepy.
10.My father would never go to the ANZAC service, and he would never watch war movies. He would become very withdrawn and would just go outside and smoke by himself.
25. Mrs Harmon agreed that the statement was incorrect to the extent that it records “Mrs Margaret Barton states as follows”. She said that she did not notice the obvious error when she signed the statement but agreed that the whole of the contents were of her intended evidence. She had also amended paragraph 5 of the statement by deleting the year “1998” and substituting in handwriting the year “1993”. In evidence she said that again she had made an error because 1993 was the year of her father’s death. She said that her father smoked cigarettes until 1991 and she again amended the statement to include that year as the year that he continued to smoke at between 20 and 30 cigarettes per day.
26. Mrs Harmon said that she had been told by her mother that her father had smoked approximately five cigarettes per day prior to service. She said that her mother confided in her a great deal as to the behaviour of her father and thought that her mother did so because she was the eldest daughter. She also recalled that there were occasions that her mother had told her that she had been struck by her father when he was under the influence of alcohol. Mrs Harmon had a recollection of her own of her father becoming aggressive when he was influenced by alcohol and that she and her mother had become frightened of him. She recalled that her father would bring bottles of beer home after work and he continued to drink alcohol until he was admitted to hospital in the late 1980’s.
27. Mrs Harmon recalled that her father was depressed and anxious and would “close up a lot”. She said that he would frequently “go off on one of his moods” and there were occasions when she would talk to him but he would not respond. Mrs Harmon said that her mother had told her that her father had changed a great deal after service and whereas he had previously been jovial and personable he had become quiet, withdrawn and aggressive.
28. Mrs Harmon recalled that her Uncle Tom and her father would drink alcohol together and she also recalled that her father was very close to her Uncles Tom and Jim. In fact she thought that her father was closer to her Uncles than he was to her mother.
29. When Mrs Harmon was notified of the many references within the T-documents to her father’s smoking habit she thought that he must have been “telling lies”. She had many recollections of observing him smoking cigarettes and described his habit of smoking outside the house in the garage. Mrs Harmon acknowledged that she did not see her father frequently after she married and was raising a family of her own. But she said on those occasions that she did see him – including up until 1990 or 1991 he was continuing to smoke cigarettes. She acknowledged that he did eventually suffer from Parkinson’s Disease and had a tremor in his hands but on those occasions if he was smoking a cigarette her mother would remove the cigarette from him.
30. In cross-examination Mrs Harmon remained adamant that her father ceased smoking cigarettes only two or three years before he died. She acknowledged that she was not careful in the preparation of her statement – particularly as to paragraph 5 – but said that she did not understand at the time she prepared the statement that this would become such an important issue. She thought that her father did decrease his smoking habit from the early 1980’s when he commenced to suffer from tremors in his hands but he did not cease smoking.
31. In cross-examination Mrs Harmon remained firm on her recollection as to her father’s smoking habit. Whilst continuing to deny the references within the T-documents to the absence of a smoking habit, she said that she could recall observing him smoking 20 to 30 roll your own cigarettes per day and could also remember the packets of tobacco lying around the house. She said the evidence that she was giving was from her own recollection and not upon reliance of information given to her by her mother.
32. With respect to her father’s drinking habit Mrs Harmon said that whilst her father may not have attended a local hotel every night after work he did frequently drink at home and then it would be from large bottles of beer and on some occasions he would share a flagon of wine with her Uncle Tom. She said that her father and Uncle Tom drank together most nights and when Uncle Tom had left the home to visit other persons on weekends her father would drink alone.
33. Mrs Harmon also recalled that her father did not enjoy good health after discharge. She said that he suffered from chest and stomach complaints and frequently attended doctors. She said that he also attended Dr Prott who prescribed Valium which she thought first occurred in the 1950’s but acknowledged by reference to medical reports that it may have been in the 1960’s. She said her father was frequently anxious about his “heart condition” and she recalled him being anxious before she married in 1951.
wendy ann barton
34. Mrs Barton is the wife of Alan Barton. She did not provide a Proof of Evidence prior to the hearing.
35. Mrs Barton said that she and her husband lived with the deceased and Mrs Barton the applicant in these proceedings for a few years after they were married in 1959. She recalled her father-in-law smoking cigarettes and drinking beer. She also recalled him to be depressed and argumentative but on other occasions to be kind. She said that he had a “problem with his stomach” and was frequently consuming Mylanta.
36. Mrs Barton said that she was aware that Mrs Barton’s brother Jim had been killed in service and her other brother Tom had been severely injured. She thought that Tom was an influence over her father-in-law and she had a recollection of both of them frequently drinking alcohol often to excess. She also recalled that her father-in-law would “shake and smoke when his nerves were bad”. She recalled occasions where he had told her that he had stopped smoking cigarettes but she later observed him smoking outside the house.
37. Mrs Barton said that her father-in-law continued to smoke cigarettes until 1988 or 1989 shortly prior to being admitted into a nursing home. She thought that he had reduced his smoking habit and was then smoking at about six cigarettes per day. She had a distinct recollection of him smoking up to 20 cigarettes per day until the mid 1980’s and had another recollection of him chain smoking on Melbourne Cup Day in 1986.
38. Mrs Barton also said that her father-in-law continued to drink alcohol until at least 1986 or 1987.
39. In cross-examination Mrs Barton said that she and her husband lived with the deceased and the applicant between 1959 and 1963. She said that her father-in-law would drink alcohol on a daily basis but on the occasions that Tom came to visit, he and Tom would drink together and her father-in-law would drink in greater quantities. She also thought that Tom was an influence on his smoking habit because her father-in-law smoked more tobacco on those occasions where Tom was present in the home. She said that her father-in-law was aggressive and moody and depressed on most occasions. She had no recollection of her father-in-law of complaining of chest pain or expressing any concern that he was at risk of having a heart attack but she did recall that he suffered from indigestion and was taking antacid powders and Mylanta. She said that she had no recollection of him consuming medication for any other condition.
40. The hearing resumed in Melbourne on 8 November 2004. Mr De Marchi then decided to call Mrs Barton who gave her evidence by telephone. Both parties agreed that Dr Byron Collins and Dr Harper would not be called. Additionally it was agreed that Mr Piper, a military historian engaged by the respondent, would not be called.
Margaret Barton
41. Mrs Barton agreed that her husband died in 1993 and he was then an inpatient at a hospital.
42. Mrs Barton said that prior to enlistment her husband smoked cigarettes and drank alcohol. She described him as a “silent drinker” and he smoked “heavy”. She said that he continued to smoke cigarettes after he was discharged at a rate which she said was “pretty heavy” and he continued to drink alcohol. She understood that he smoked cigarettes because of worry associated with having to provide for a “big family”. Mrs Barton said that she and her husband had seven children at the time of his enlistment and another child was born after he was discharged. She said there “was not much money at home” and in her husband’s lifetime she had attempted to obtain a pension for him. She said that her husband “never stopped smoking” and continued to smoke cigarettes after he was diagnosed with Parkinson’s disease and until the time that he was admitted to hospital prior to his death. She said that at discharge from service he was “run down” and thereafter drank beer at either four or five or six glasses per day and on weekends. She said that he “drank for a long time”. She said that her husband suffered from “bad nerves” and “kept it to himself”. For most of his lifetime she recalled that he “lived on Valium” and had “bad stomach problems”. For most of his lifetime she recalled that he suffered from chest infections.
43. Mrs Barton understood that her husband smoked roll your own cigarettes prior to enlistment and when in the Army he was able to access and purchase cigarettes cheaply.
44. In cross-examination Mrs Barton said that when she first met her husband he was then smoking cigarettes and drinking beer. Prior to service she recalled that he was a “pretty heavy” smoker when he could afford to purchase tobacco and also drank beer heavily.
45. Mrs Barton said that before enlistment and after his discharge her husband smoked cigarettes and drank alcohol because of worry he had with providing for a large family and because of the absence of money. She recalled that her husband smoked more than a 2oz packet of tobacco each week.
46. Mrs Barton also said that her husband was influenced by her brothers Jim and Tom. She said that her husband was an only child and was lonely and enjoyed the company of her brothers. She recalled that she learnt of the death of her brother in Libya after her mother received a telegram. She later told her husband who was at home on leave (despite his service records recording that he was then stationed at Drysdale in Victoria). Mrs Barton said that her brother Tom lived with them from time to time and her husband would drink daily with him. She said they would share two or three bottles of beer “depending on how much money we had”. Despite this she said that Tom did not influence her husband because “he had a mind of his own”.
47. When Mrs Barton was referred to passages in the medical records where doctors took histories between 1960 and 1972 of very modest beer consumption by Mr Barton, she then said that her husband did decrease his alcohol consumption “over the years after discharge”.
48. Mrs Barton was then taken to a letter that she wrote that was received into evidence (refer earlier) and said that she understood that her husband did suffer a fall in service but she knew nothing about it and said that her husband had not told her anything at all about his service.
49. In re-examination Mrs Barton said that her children Alan and Edna and daughter-in-law Wendy who gave evidence on the first day of these proceedings had frequent contact with her husband and would have been aware of his consumption of alcohol and tobacco. She said that it was likely that her husband had given doctors an incorrect history with respect to his alcohol and drinking habits.
50. Mrs Barton was asked to provide greater details as to her husband’s consumption of cigarettes. She said before enlistment he smoked roll your own cigarettes and tailor made cigarettes when he could afford it. She said that he would smoke between 10 and 11 roll your own cigarettes prior to service and 15 roll your own cigarettes after service. Later she said that he increased his habit to 20 cigarettes per day of roll your own or tailor made cigarettes.
submissions
51. Mr De Marchi submitted that the death of the late Mr Barton was attributable to, or arose out of, his eligible war service within the meaning of s8(1)(b) of the Veterans’ Entitlements Act 1986 (“the Act”). Additionally it was put that a causal relationship existed between death and service within the meaning of the Federal Court decision of Law v Repatriation Commission (1980) 29 ALR 64 (“Law”). It was submitted that if death was by a number of different causes that the claim should succeed if one of those causes can be attributable to eligible service. Mr De Marchi noted that the respondent conceded that the veteran suffered from ischaemic heart disease and hypertension and it was submitted that there was agreement between the doctors that a combination of ischaemic heart disease and congestive cardiac failure contributed to death. It was noted that the deceased suffered from Parkinson’s disease which was reported by the doctors to have contributed to his cardiomyopathy. However, Dr Martin, the deceased’s LMO, reported that ischaemic heart disease contributed to cardiomyopathy.
52. It was put by Mr De Marchi that the connection between service and death had the link of alcohol and cigarettes. It was submitted that by reason of the deceased’s service being eligible only the applicable standard of proof was to be found at s120(4) of the Act being “reasonable satisfaction”. To the extent that SOPs needed to be considered it was submitted that s120B(3) applied and the “material” needed to be considered when making a finding as to whether there was a connection between service and death. It was submitted that the requirements of s120B(3) were “akin to a reasonable hypothesis”.
53. It therefore followed that if a SOP was in force consideration needed to be given as to whether an applicable factor upheld the contention of death by service. It was submitted that s119 of the Act was relevant because of the passage of time and the poor recollection of Mrs Barton although it was conceded that the deceased’s children and daughter-in-law did have a good recollection of the smoking and drinking habits of Mr Barton.
54. Mr De Marchi relied on SOP Instrument No. 54 of 2003 with respect to ischaemic heart disease and then upon factors 5(a) and/or 5(e)(ii) and 5(f). He also relied on SOP Instrument No. 36 of 2003 with respect to hypertension and then upon factor 5(d).
55. It was submitted that the material supported a connection between service and death and was consistent with the factors within the above Instruments. To the extent that there was inconsistency between the veteran’s histories to his doctors and the evidence of the applicant, her children and daughter-in-law, it was submitted that the evidence of the deceased’s family should be preferred.
56. Mr De Marchi submitted that on the basis of the Federal Court decision of Repatriation Commission v Tuite (1993) 29 ALD 609 (“Tuite”), features of the deceased’s service namely boredom, camp life, peer pressure and the ability to purchase cigarettes at reduced cost all contributed to the causal association between smoking and alcohol which in turn contributed to death. Additionally it was submitted that the deceased’s relationship with his brother-in-laws Tom and Jim contributed to his alcohol and cigarette habit and it was irrelevant to consider whether the deceased learnt of the death of Jim either when he was at home on leave or away during service. It was submitted that he was enlisted and therefore engaged in service at the time he learnt of Jim’s death.
57. It was conceded that the deceased did smoke and drink alcohol prior to enlistment but upon the evidence, particularly of Alan Barton, the deceased increased his tobacco and alcohol consumption by reason of and subsequent to discharge.
58. In conclusion it was submitted that the material was consistent with an association existing between service and the cause of death and a finding should be made on the balance of probabilities that death arose out of or was attributable to service.
59. Ms Cassamento submitted that on the basis of the decision of Selway J in Repatriation Commission v Hancock (2003) 37 AAR 383 the “kind of death” should be considered, no less in the present case where the deceased suffered from a number of illnesses prior to his death. She noted that Dr Harper found that the deceased suffered from bronchial pneumonia and congestive cardiac failure all of which she submitted had an association with the underlying conceded diseases of ischaemic heart disease and hypertension. It was necessary therefore to consider applicable SOPs. It was submitted that on the evidence heard there could be no finding, by reasonable satisfaction, of a causal connection between service and death. Ms Cassamento conceded that the decision in Law was authority for the proposition that the cause of death need not be the sole cause but rather a contributing cause. She also noted that with respect to the decision of Tuite, incidents within service including peer pressure and camp life can be considered when examining whether there is any contributing cause but those incidents, in her submission, must contribute to the cause rather than exist merely because of the “setting”. Ms Cassamento relied on the Tribunal decision of Re Walmsley and Repatriation Commission (AAT 11153, 12 August 1996) and submitted that in the context of alcohol consumption, peer pressure alone does not permit a finding of attribution by the circumstances of service.
60. It was submitted that the principle thrust of the applicant’s case was the deceased being affected upon learning of the death of his brother-in-law Jim which on the evidence of Mr Piper occurred three days after the deceased enlisted. It was submitted that such an event could not be regarded as an incident of service and whilst assumptions were permissible in attempting to connect service with injury or death, the probable reaction of the deceased would have been no different if he had been a civilian. Additionally it was submitted that civilians might obtain comfort from cigarettes or alcohol upon learning of the death of a family member.
61. Ms Cassamento distinguished the present application from a decision of the Tribunal in Re Corbett and Repatriation Commission [2001] AATA 498 where it was found that the death of the deceased veteran by ischaemic heart disease and hypertension, set against a background of heavy alcohol and smoking habit was war-caused, because there was evidence of events in service contributing to the alcohol and cigarette habit. In the present case it was submitted that the applicant pursued a connection between service and death by the effect upon him of the death of his brother-in-law (which was submitted as not attributable to eligible service) and by the deceased’s access to cigarettes at a reduced cost. Thereafter, the deceased smoked cigarettes only to obtain comfort from the worry associated with providing for a large family.
62. On balance therefore it was submitted that there was no association between service and the deceased’s alcohol and cigarette habit.
63. In the event that a finding of connection between service and the alcohol and cigarette habit was made, it was submitted that applicable SOPs could not be satisfied. It was submitted that the applicable SOP Instrument for ischaemic heart disease was No. 54 of 2003 but factor 5(f) applied only because the deceased had not ceased smoking at the onset of ischaemic heart disease. Ms Cassamento pointed to the LMO notes where in a report of 17 October 1985 the deceased had then been prescribed Anginine medication and the doctor had made a finding of ischaemic heart disease. In any event it was submitted that a significant doubt existed as to whether the deceased did smoke at the relevant levels (refer factor 5(f)(i) and (ii)) and even if it were found that a connection existed between service and cigarette consumption it was submitted that a causal connection between service and smoking could not be found.
64. The applicable Instrument with respect to hypertension was submitted to be No. 36 of 2003 as amended by Instrument No. 4 of 2004. It was noted that factor 5(b) in the former Instrument did not exist in the latter Instrument yet the consumption of alcohol and the quantities consumed remained an issue in the present case. It was submitted that a finding should be made of the deceased having consumed an average of 1 bottle of beer per day which at 7 bottles per week would not achieve the required minimum consumption of 300gms of alcohol per week. Additionally the factor in the former Instrument referred to an alcohol habit which “cannot be decreased”. It was submitted on the evidence that the deceased was capable of decreasing his alcohol habit to the extent that he only increased it when he was in the company of other persons. This in turn pointed to the connection between service and alcohol consumption not being achieved. Additionally, on the evidence heard at Ballarat the deceased enjoyed many years of employment as both a bus driver and a truck driver which would be inconsistent with him having an excessive alcohol habit.
65. In reply Mr De Marchi submitted that the calculations made by the respondent with respect to the alcohol consumed were incorrect and he referred to the SOP which prescribed – for the purposes of calculating requisite quantities – that 10gms of alcohol is to be found in each alcoholic drink. It was submitted that the expression “cannot be decreased” was not a technical term and the ordinary meaning to those words should be given namely that a person was “compelled to drink”.
66. Additionally Mr De Marchi submitted that s8(1)(d) applied in the present circumstances by reason of “changes in the veteran’s environment consequent upon his or her having rendered eligible war service” together with s8(1)(e)(ii), namely that the disease from which the deceased suffered “was contracted before commencement” of his eligible service and “was contributed to in a material degree” or “was aggravated by his eligible service”.
67. In conclusion Mr De Marchi submitted that s196B(14) applied and submitted that the death of the deceased was “related to service” because the death resulted from an occurrence which happened whilst the deceased was rendering his service. Mr De Marchi relied on a recent Full Federal Court decision of Roncevich v Repatriation Commission [2003] FCAFC 146 for which he submitted leave had recently been granted by the High Court to appeal against findings made by a Full Federal Court.
conclusion and reasons for decision
68. Section 8(1)(b) of the Act provides that the death of a veteran shall be taken to have been war-caused if the death arose out of or was attributable to any eligible war service rendered by that veteran. Section 8(1)(e) provides that the death shall be taken to have been war-caused if the injury or disease from which the veteran died was suffered or contracted while the veteran was rendering eligible war service or was suffered or contracted before the commencement of a period of eligible war service and where in the opinion of the Commission the injury or disease was contributed to in a material degree or was aggravated by any eligible war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease.
69. Section 196B(3) of the Act provides for the issue of SOPs by the RMA with respect to veterans who were engaged in eligible service. It is necessary therefore to identify the “kind of injury, disease or death” suffered by a veterans in order to determine the applicable SOP. The sub-section also provides that the SOP must record factors that must exist and which of those factors must be related to service rendered by a veteran before it can be said on the balance of probabilities that an injury, disease or death is connected with the circumstances of service.
70. In the present application the respondent concedes that the deceased suffered from ischaemic heart disease and hypertension. Those concessions are well made. They are consistent with the medical evidence and the opinions variously expressed by Dr Byron Collins, Professor Harper and Dr Martin. SOPs have been issued with respect to conditions of ischaemic heart disease and hypertension.
71. Having regard to the opinions expressed by the above Doctors I am satisfied that the kind of death suffered by Mr Barton was bronchial pneumonia and congestive cardiac failure, those conditions being related in whole or large part to hypertension and ischaemic heart disease in a person with an overwhelming disability of Parkinson’s disease. Support for this finding is to be found in the opinion of Professor Harper by his report of 2 March 2004 and Dr Martin in his report of 7 November 2003. Dr Byron Collins in an opinion of 10 March 2004 concluded that in addition to the influence upon congestive cardiac failure by ischaemic heart disease the deceased was at risk of developing a chest infection by reason of the presence of congestive cardiac failure and his immobility by reason of his Parkinson’s disease. Dr Martin was of the view that the deceased also suffered from bronchial pneumonia which was probably related to his aspiration by the effect of the Parkinson’s disease as opposed to the presence of a hiatus hernia which was an opinion initially held by Dr Byron Collins in a report of 30 May 2003 but discounted in his subsequent opinion of 10 March 2004.
72. Having regard to the date of the claim which has given rise to these proceedings, Mrs Barton must satisfy applicable SOPs. Routinely, SOPs with respect to veterans who rendered eligible service require that factors must exist on the balance of probabilities if an illness is “connected” with the circumstances of service. Section 196B(14) of the Act is in similar terms to s8(1) because it provides that a factor causing or contributing to an injury, disease or death is related to service rendered if it arose out of, or was attributable, to that service (sub-paragraph (b)) or was contributed in a material degree or aggravated by service (sub-paragraph (d)). The word “connected” appears within the SOPs applicable to veterans who were engaged in eligible service and at s196B only but I think nothing turns on this issue. The words “causing”, “contributing”, “attributable” and “aggravated” are of such a genus to embrace the word “connected”. (In concluding this part I also note that the word “contracted” appears at s196B(4) to describe the relationship between service and a disease if it is to have a relationship with service. Clearly the use of these various words is intended to describe and require a relationship with service of an injury, disease or death if it is to be found as war-caused. A relationship, as evident by these words, must exist. Mere service with subsequent injury, disease or death will not suffice to permit a finding of a war-caused relationship).
73. In Repatriation Commission v Law (1980) 31 ALR 140 (“Law”) at 151 the Full Federal Court discussed provisions similar to s8 of the current legislation with sections of the predecessor Act namely the Repatriation Act 1920. The Court noted that the previous legislation – discussed the word “attributable” and at p151 the Court concluded:
It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show “attributability” if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.
74. The former legislation also used the expression “has arisen out of”. Whilst the current legislation uses the expression either “arose out of” or “arise out of” there is no difference of any significance. The Court in Law concluded that the words “arising out of” “require a consequential relationship of the incapacity or death with the service out of which it is said to arise.”. The expression “material degree” as it appears in s8(1)(e) and s196B(14)(d) was discussed by Davies J in Repatriation Commission v Bendy (1998) 18 ALD 144 where at 146 his Honour decided that the expression “material” directs that the contribution by service must be of a causal nature and any contribution which is only de minimis is to be ignored. His Honour decided that a dictionary definition of the word “material” was not applicable and he preferred the word to be interpreted as either “pertinent” or “likely to influence”.
75. In Tuite Davies J, at 611 discussed s9(1)(b) being the equivalent of s8(1)(b) and decided that the words of that sub-section “require that there be a causal connection between the eligible war service and the disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease.”.
76. In Tuite the Tribunal at first instance heard evidence from the veteran that he had not smoked cigarettes prior to enlistment but within 14 days of entering camp he was smoking cigarettes. There was evidence that cigarettes were readily available and at cheap cost. The veteran also gave evidence that he smoked because he was bored and he started smoking because “everyone was smoking”. Davies J decided at 612:
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.
77. In order to decide therefore whether the death of the late Mr Barton was war-caused an inquiry must be made of the circumstances of his service.
78. Mr Barton enlisted at the age of 32 on 10 February 1942. He completed a medical examination on 17 July 1942 and was then found to have a gastric ulcer. At discharge in December 1944 it was noted that he continued to have symptoms of indigestion which existed prior to enlistment and an examination of service medical records indicates that throughout service Mr Barton was treated for or received medication for symptoms variously described as either dyspepsia or gastritis.
79. Save that Mr Alan Barton gave evidence that his father was a member of a “motor transport battalion” there was no other reference whatsoever throughout the two days of hearing of the circumstances of the service of the late Mr Barton or his duties in service or the nature of his service. It is known that he served within Australia and an examination of the service records would indicate that he was a member of either a motor transport regiment, a tank battalion, a training regiment or of an engineering unit. The respondent obtained a report from Mr Robert Piper who summarised the units and activities to which the deceased was posted as a “driver” in a report of 21 June 2004 which is relevantly summarised as follows:
July 1942 – April 1943.
3 Motor Transport Regiment – providing motor transport and drivers when and where required (Victoria and NSW).
April 1943 – August 1943.
1 Aust. Motor Training Regt. – a training unit for vehicle drivers (NSW).
August 1943 – October 1943.
2 Aust. Army Training Battalion – a training unit (NSW).
October 1943 – May 1944.
2 Tank Battalion – a tank battalion (NSW).
May 1944 – July 1944.
3 Royal Australian Engineers – engineering unit (NSW).
July 1944 – December 1944.
Aust. Docks Service Training Coy/1 Aust. Port Const. Coy (NSW).
80. In a report of 1 July 2004, Mr Piper also concluded – by access to other documents – that the deceased also served in Queensland by reference to an Attestation Form completed on 26 September 1944. In his former report Mr Piper concluded:
Bribie Island (Qld) It is understood that Mr Barton had mentioned service on Bribie Island as a “Batman for two officers”. This is entirely possible. Bribie Island is near Brisbane and was used during World War II to train for beach landings. A driver, temporarily posted to the area, would also have driven staff cars for officers and generally looked after their requirements. It is possible this occurred between October 1943 and July 1944 when the veteran served with 2 Tank Battalion and 3 Royal Australian Engineers.
None of the veterans’ units served in combat areas or came under enemy attack, some were training units while others were engineering or dockside ones. All units required the use of transport, vehicles and drivers. The latter being the service that Mr Barton provided.
81. The Tribunal does have an inquisitorial responsibility but I doubt that this extends to having to trawl through hundreds of pages of documents in an attempt to find some reference to the nature of the deceased’s service and find some thing or some reference to the events and circumstances of service. This exercise was undertaken; if it had not been, even less would be known. In this application there are 54 pages of T-documents, 73 pages of service medical records, 66 pages of records from the local medical officer and 499 pages of records from the file of Ballarat Health Services being an amalgamation of the Ballarat Base Hospital and the Queen Elizabeth Geriatric Centre in Ballarat.
82. I can find nothing which points to the nature of the deceased’s service other than he was engaged as a “driver”. I have found earlier, as a fact, that the deceased did smoke cigarettes and drink alcohol prior to enlistment. I am also satisfied, and have found earlier, that the deceased did increase his consumption of cigarettes and alcohol after enlistment and in making that finding, I am satisfied that the various histories taken by doctors over the years subsequent to enlistment, are not accurate. It is not unusual in the veterans’ jurisdiction for veterans’ in their lifetimes to give inaccurate or untruthful histories to doctors of alcohol and cigarette consumption. The reasons given are various and need not be recorded here. I am however satisfied that the evidence given by the son, daughter and daughter-in-law of the deceased is truthful. But I can find nothing from the documents read – in the absence of evidence – that the deceased was exposed to peer pressure or that cigarettes (or tobacco) were plentiful or available at cheap cost. I do not know whether he was bored nor is there anything which points to the deceased being under stress within service so as to account for his increased consumption of cigarettes and alcohol. There is nothing which points to the deceased being engaged in any combat.
83. The SOPs do indicate that if there is a requisite period of a defined quantity of cigarettes or alcohol, the conditions of hypertension and ischaemic heart disease will be found to be war-caused. In those circumstances the injuries giving rise to the death of the deceased will be found to have been established. Of course having to make findings on the balance of probabilities – as in the present case – is more onerous than having to make a finding upon reasonable hypothesis – nonetheless there must be material pointing to (in the case of a reasonable hypothesis) or evidence (in the case of satisfaction upon the balance of probabilities) of increased consumption of alcohol and cigarettes by the circumstances of the eligible war service.
84. It seems to me, having regard to the proofs of evidence lodged in these proceedings and by reference to documents found within the T-documents, that an assumption has been held both incorrectly and unfortunately, that engagement in service alone is enough to entitle Mrs Barton to a pension.
85. I would acknowledge as I have and other Members have had in applications brought by widows that the opportunity to obtain the best evidence – from veterans – is not possible. Reference is then made to evidence of the widows but frequently – no less in the present case – the Tribunal learns that many veterans in their lifetimes were reluctant or refused to speak about service. In the present case Mrs Barton said in evidence and in the Proof of Evidence lodged in the proceedings that her husband would not talk to her about the circumstances of his service. It was also known that he was frequently drunk and abusive. His children know nothing of his service other than the evidence of Mr Barton who understood that his father was engaged in a transport regiment. The family members who gave evidence said that Mr Barton was a remarkably different person after discharge from service, who engaged frequently in consumption of alcohol to excess and smoked cigarettes in greater quantities.
86. The claim for pension upon the respondent made in July 2001 – in answer to the question “How do you believe the veteran’s service caused or contributed to his or her death?” contains the answer “I believe the conditions of my husband’s service caused or materially contributed to his death” (T-documents page 42).
87. The claim was eventually rejected and when the matter was ultimately heard upon appeal at the VRB it is noted that there were no submissions concerning an alleged connection between smoking and ischaemic heart disease and the VRB then considered whether there was any connection between the consumption of a medication known as “Belladonna” and hypertension.
88. In a claim made by Mr Barton in April 1988 (T8 pages 26-28), the disabilities then claimed as being related to service (I assume in a claim form completed by Mrs Barton) were “Heart is in a bad state; his hernia is a problem; Parkinson’s disease; nerves in a bad state; no power in hands and legs a problem”. In the claim form where a description is to be provided connecting circumstances of service and the illnesses or disabilities claimed, the response given is “He has had a lot of repatriation treatment. Always been under the doctor. Nerves were always a problem. Stomach ulcers and hernia. Now has Parkinson’s disease and diseased heart and losing power in legs and arms”.
89. The letter written by Mrs Barton which was received as her Proof of Evidence in these proceedings and a letter that she wrote to the respondent on 25 June 1993 (service medical file page 35F) refer in general terms to the ill health of her husband but contain no specific reference to the circumstances of his service.
90. The above documents are highlighted not as any criticism of the deceased or Mrs Barton (and I note that at the relevant times that these documents were prepared they were not legally represented) but to indicate that there has never been any references made to the particular circumstances of service which would give some indication of whether any of the illnesses or injuries suffered in the deceased’s lifetime or which contributed to his death can be found to be war-caused.
91. In Critch v Repatriation Commission (1996) 43 ALD 574 Merkel J decided that a connection with service may be found by assumed facts or by inference. But that decision involved overseas service where the standard of proof was reasonable hypothesis. It also involved an application where there was evidence that the deceased was engaged in combat which was unchallenged. In those circumstances the Court decided that it was open to the Tribunal to conclude that a reasonable hypothesis existed between the commencement of a smoking habit and the circumstances of service that were then known.
92. In the present case the circumstances of service other than the engagement of the deceased in various transport battalions is not known and this is an application where a finding of whether the death is war-caused is to be made upon the balance of probabilities.
93. There are many references in the T-documents and the service medical files which indicate that the deceased was worried about the welfare of his family and it is noted that he was prematurely discharged from service on compassionate grounds. The deceased was apparently so anxious to be discharged from service that he completed a certificate which was in part also completed by a medical practitioner where it was certified that upon discharge, no claim was made for any disability caused or aggravated by “war”.
94. On balance therefore I am unable to find that the illnesses or diseases which arose out of the increase in the consumption of alcohol and cigarettes are “attributable to” or “arose out of” the deceased’s eligible service nor can I find any “material contribution” by the service.
95. Another feature of this review was the frequent references made by the applicant widow and her children and daughter-in-law to the death of the applicant’s brother and the severe injury to another brother during the period of the deceased’s eligible service. There was evidence that the deceased was close to both those persons. Whether the deceased veteran increased his alcohol and smoking habit as a reaction to the death and injury of his respective brother-in-laws in my view amounts to no more than speculation.
96. There is no reference at all to those persons or to any affect upon the deceased in the applicant’s Statement of Facts and Contentions save that there is a passing reference to the deceased suffering from an anxiety neurosis. Little attention was paid to it in the applicant’s closing submissions. Indeed greater focus was placed upon the relationship between the deceased and his brothers-in-law by Ms Cassamento in anticipation (I suspect) of the alternate basis that the applicant’s claim would be put.
97. Coincidentally, between the first day of hearing and the resumed day in Melbourne, Selway J heard an appeal and published a decision in the Federal Court in Brennan v Repatriation Commission [2004] FCA 1431 (“Brennan”) where His Honour considered whether a hypothesis existed in the case of a veteran who learnt of the death of his brother in service and a subsequent severe psychosocial stressor. Coincidentally also the applicant’s representative in the present appeal appeared in Brennan.
98. For reasons similar to those of Selway J, I would dismiss, on the probabilities, any connection between the deceased learning and subsequently reacting to the death and injury of his brothers-in-law and either an increase in his smoking or alcohol habit or any affect upon his hypertension or ischaemic heart disease.
99. In the extensive medical records lodged in these proceedings spanning almost 50 years of treatment, I can find not one reference to the deceased ever giving any medical practitioner any history of the affect upon him of the death of those persons. I would acknowledge for many years the deceased was prescribed Valium and there are references in the notes to him suffering from anxiety and on occasions from depression. But so far as I can interpret those notes – and in the absence of any assistance in submissions from the applicant’s representative – the references to those diagnoses and the description of the Valium medication appears to relate principally – if not only – to the belief and observations of the various medical practitioners of the deceased’s complaints of chest pain, which was often found by the doctors to have no organic basis. For example, in the medical assessment of the deceased on 1 September 1972, frontal headaches then recorded by the examining doctor were thought to be psychogenic and chest pain and radiated pain into the right arm were thought to be pseudo-angina. The same medical officer recorded that the deceased then had a functional overlay, that assessment of his gastric symptoms were “difficult” but the diminution of symptoms by Valium pointed to a “strong psychogenic element” (refer service medical records page 25T). Indeed there are repeated references to the concern and worry expressed by the deceased as to his ability to be a provider to his wife and eight children. On 30 August 1988 a medical officer examined the deceased and found that he was then suffering from advanced Parkinson’s disease. Notes taken of interview with Mrs Barton are recorded as “no history of any mental disorder, serious disorder or emotional disorder prior to the onset of his Parkinson’s disease. She (illegible) to do all the (illegible) a good husband and father of eight children” (service medical records page 25GG).
100. In a claim for medical treatment and pension for the condition of Parkinson’s disease made on 8 August 1985 the symptoms of “shaking, trembling, muscular cramps, paralysis, not good bladder control” were recorded as having “started while in the army”. The relationship to service was expressed as being “worry and wife in country with large family” (service medical records page 25AA, BB and CC).
101. There were no submissions – nor evidence – that the deceased satisfied any SOP for any psychiatric type illness which – if this were a case involving operational service – would amount to a “sub-hypothesis”. A connection between service and death must incorporate all relevant links including applicable SOPs. No such SOP was identified.
102. Selway J discussed in Brennan whether any hypothesis might exist (and I acknowledge that this is an application where a more rigid standard of proof applies) under s196B(14)(a) on the basis that there was a contribution of injury, disease or death by “an occurrence” that happened whilst rendering service, the “occurrence”, being receipt of news of the death and injury of the deceased brothers-in-law. Whilst His Honour acknowledged that receipt of such news must be related to a veteran’s own war service, he did discuss the potential – as a hypothesis – for satisfying the above section if there was evidence in support.
103. The word “occurrence” has been infrequently considered under Repatriation legislation. Indeed the only reference I can find to it being discussed is in Law v Repatriation Commission (1980) 29 ALR 64 where Toohey J, at first instance, discussed that word in the context of the former Repatriation legislation. Under s101 of the Repatriation Act 1920 an entitlement to pension existed if incapacity or death resulted from any occurrence which happened during a period of service. His Honour discussed that word and distinguished it from the word “accident” as the latter word appears frequently in workers’ compensation legislation. His Honour decided that the word “occurrence” has a broader meaning than the word “accident” and decided that in the context of s101 of the former Act (and by reference also to the Acts Interpretation Act 1901) “an occurrence” must have happened during a period of enlistment and an occurrence “embraces events that have taken place by reason of the conduct of the member concerned” (refer pages 70 and 71).
104. I cannot for the above reasons find that there was any occurrence which caused or contributed to the death of the late Mr Barton within s196B(14) of the Act. I also note in concluding this part that for the purposes of s8(1)(a), the death of a veteran from an occurrence shall be war-caused only if the occurrence “happened” whilst the deceased was rendering operational service.
105. In conclusion I note that Mrs Barton referred in her Proof of Evidence to Mr Barton having suffered a “fall” during service. I can find no reference to that event in any of the documents lodged on the Tribunal file. I note however that on 5 October 1942 the late Mr Barton was transferred from camp at Drysdale in Victoria to hospital at Puckapunyal with a complaint of “swollen leg – skin irritation” for which he was hospitalised for three days (T-documents page 6). I also note that at discharge medical examination on 6 December 1944 the medical officer recorded that the deceased had “slight pain in back which disappeared without treatment”.
106. It is impossible from these references to make any findings on the probabilities associating those events with an increase in the consumption of alcohol or cigarettes or any impact upon hypertension or ischaemic heart disease.
107. In all of the circumstances, and for the above reasons, I am unable to find that the death of the late Mr Barton was war-caused. Accordingly the decision under review is affirmed.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: Grace Carney
Personal AssistantDates of Hearing 20 May, 2 September and 8 November 2004
Date of Decision 10 January 2005
Solicitor for the Applicant Mr D De Marchi
Departmental Advocate Ms R Cassamento
10
0