Bell and Repatriation Commission
[2004] AATA 88
•3 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 88
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/689
VETERANS’ APPEALS DIVISION ) Re CONSTANCE BELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Dr JD Campbell, MemberDate3 February 2004
PlaceSydney
Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that:
(i) the death of Mr Noel Phillip Thomas Bell is war-caused pursuant to subsection 8 of the Veterans' Entitlement Act 1986;
(ii) Mrs Constance Bell is eligible for a War Widow's Pension from and including 6 May 2001................................................
Ms SM Bullock Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement - War Widow's Pension - Reasonable Hypothesis -
Cause of Death
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 8, 11, 13, 119, 120, 120A
AUTHORITIES
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell v Repatriation Commission (1992) 175 CLR 408
McKenna v Repatriation Commission (1999) 86 FCR 144
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hughes (1990) 13 AAR 34
REASONS FOR DECISION
3 February 2004 Ms SM Bullock, Senior Member
Dr JD Campbell, Member1. Mrs Bell's husband, Mr Noel Phillip Thomas Bell, sadly died on 23 December 1977. Mr Bell served in the Royal Australian Air Force ("the Air Force") from 8 April 1941 until 18 March 1946 and this is considered to be operational service. Mrs Bell applied for a War Widow's Pension. The Repatriation Commission, the Respondent, decided on 5 September 2001, that Mr Bell's death was not related to his service and accordingly that Mrs Bell was not qualified to receive a War Widow's Pension (T2). Mrs Bell made an application for review of that decision to the Veterans' Review Board ("the Board") and on 16 April 2002 (T16), the Board affirmed the Repatriation Commission's decision. Mrs Bell has now made an application for review to the Administrative Appeals Tribunal ("the Tribunal") of the Board's decision as it affirmed the Repatriation Commission's initial decision.
2. A Hearing was held before the Tribunal in Sydney on 5 August 2003. Mrs Bell provided oral evidence. She was represented by Mr A Hill of Counsel. The Respondent was represented by Mr J Marsh, Advocate with the Department of Veterans' Affairs. Concurrent evidence was provided by Associate Professor AJ Corbett, Neurologist and Professor JG McLeod, Neurologist. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T18). A number of exhibits were also taken into evidence which are listed in Schedule 1 attached to this decision.
background
3. On 21 December 1977, Mr Bell fell from an unguarded stairwell where he was painting at the Lachlan Shire Council Chambers, Condobolin (T11, p72). Mr Bell was later transferred from Condobolin District Hospital to Royal Prince Alfred Hospital in Sydney on 22 December 1977 at 0030 hours. Mr Bell died at Royal Prince Alfred Hospital on 23 December 1977 at 9.35am (T11, p59). The cause of death as certified on the Death Certificate was due to injuries accidentally received on 21 December 1977 at the Lachlan Shire Council Chambers, Condobolin, when Mr Bell fell from an unguarded stairwell. On 10 January 1978, Dr W Fletcher, from the Division of Forensic Medicine in New South Wales, certified that the direct cause of Mr Bell's death was head injury and that another significant condition contributing to his death but not relating to the disease or condition causing it, was hypertensive heart disease (T11, p75).
issues
4. We have to decide the kind of death Mr Bell suffered from and whether or not this can be related to his operational service in the Air Force. There have been a number of hypotheses put forward by the Applicant about which we will have to make a determination. The issues are:
(i) Did Mr Bell have a war-caused excessive alcohol habit which led to his fall?
(ii) Did Mr Bell have a war-caused excessive alcohol habit leading to hypertension which in turn led to his having a stroke leading to his visual field defect leading to a fall?
legislation
5. A determination in this matter requires consideration of relevant provisions of the Veterans' Entitlements Act 1986 ("the Act"). The relevant legislative provisions are contained within Schedule 2 attached to this decision.
evidence of mrs constance bell
6. Mrs Bell stated on a number of occasions during her evidence that she found it difficult to remember specific details about matters happening so long ago. She explained that she first met her husband-to-be, Mr Noel Bell, in 1943. At that time, Mrs Bell was working in Sydney and boarding at the same boarding house as Mr Bell's sister. Mr Bell was on a period of leave from the Air Force but Mrs Bell was not sure where he was stationed when she first met him. Mrs Bell stated that her husband was not drinking alcohol at that time. Mr Bell's sister had told Mrs Bell that Mr Bell did not drink and that the family did not believe in drinking. Specifically, Mr Bell's mother and father would not allow the consumption of alcohol. There was no strict religious belief impacting on this attitude, Mrs Bell stated.
7. Mrs Bell further explained that her husband was moved around quite frequently in the Air Force and she recalled specific postings to Dubbo, Darwin and the United Kingdom. There was also possibly a posting to Wagga Wagga.
8. In relation to Mr Bell's duties, Mrs Bell recalled her husband telling her about having to hose down aircraft after they landed because they had been shot about. She believed that the aircraft required cleaning because members of the crew had been wounded. Mrs Bell thought this occurred when her husband was in the United Kingdom but later stated that it was possible it could have been in Darwin given that her husband was in the United Kingdom from May 1945, after the cessation of the war. Mrs Bell also recalled her husband speaking to her about being in Darwin and that he was there during a number of Japanese raids. Mrs Bell knew that a friend of her husband had been killed in Darwin and that person could have been from Mr Bell's squadron. Mrs Bell stated that Mr Bell did not generally talk about the war.
9. Mr and Mrs Bell were married in December 1944. There was a period of approximately six months during which they were together before Mr Bell was posted away again. To Mrs Bell's knowledge, her husband did not consume alcohol during that period. When Mr Bell was in Darwin, Mrs Bell recalled that he had experienced difficulties with his eyes. He was examined by a doctor and prescribed glasses. Mrs Bell did not known the exact nature of the problems with Mr Bell’s eyes at that point.
10. After the war, Mr and Mrs Bell lived in Sydney from about 1946 until 1949, when they moved to Condobolin.
11. In terms of Mr Bell's alcohol consumption, Mrs Bell stated that her husband was consuming alcohol when he came back from the United Kingdom. She stated that he was drinking alcohol regularly but found it difficult to recall how often that was. Initially, Mrs Bell stated that her husband could be drinking daily and then later stated that it could have been once per week. She did not believe he was intoxicated. Mostly, Mrs Bell thought that her husband consumed alcohol when he was out with friends. After the move to Condobolin in 1949, Mrs Bell thought that her husband's alcohol consumption increased possibly because he was seeing old friends or men he had served with in the war. Mrs Bell explained that she and her husband wanted to purchase a home and that as a consequence, he wanted to obtain more work which he did through one of his brothers who was a shearing contractor. Mr Bell then undertook a period of shearing but Mrs Bell could not recall precisely the duration of this work. Mrs Bell further stated that she did not think that her husband's alcohol increased as a result of being a shearer. She believed that her husband would drink for about an hour after work at that time before coming home for dinner. In 1951, Mr and Mrs Bell had their first child, a son. Mrs Bell considered that her husband's alcohol intake decreased at that time.
12. In early 1962, Mrs Bell thought that her husband experienced a stroke. Following this, Mr Bell had restricted vision in his left eye. He consulted a specialist and she believed that was Dr Coleman in Orange on 24 February 1962 and also on 10 December 1962. Mr Bell was then referred to Dr Vanderfield at Royal Prince Alfred Hospital in Sydney, also in 1962.
13. After Mr Bell's first stroke and because of his restricted vision, Mrs Bell stated that her husband had to give up driving trucks. He then undertook more clerical or book work in the truck business he was operating. Mrs Bell did not know whether her husband had been medically advised not to drive trucks. She recalled that Mr Bell retired sometime after the stroke but again, could not recall the exact date.
14. Following Mr Bell's retirement, it was Mrs Bell's recollection that her husband's alcohol consumption increased and he was drinking whisky and water, a change from his drinking beer. Mrs Bell told the Tribunal that she found it difficult to talk about her husband's alcohol consumption. She informed the Tribunal that she had on occasions felt the need and did actually speak to her husband about him consuming too much alcohol.
15. Mrs Bell stated that her husband was President of the Condobolin RSL Club for approximately ten years. She was not sure whether he was still a President when he died. After retirement, Mr Bell would spend more time at the RSL Club. Prior to retirement, Mrs Bell reiterated that Mr Bell would drink with his friends after work, drinking beer. Mrs Bell was not in a position to estimate the quantity of alcohol consumed by Mr Bell before he came home, because she was not there. He would not come home "drunk" from the club. He could be "merry" but not badly intoxicated, she stated. This would occur at least once per week, Mrs Bell stated.
16. Mrs Bell stated that she did not think her husband would have been intoxicated on the day of his fall, because he had been working for his brother who is a painter. Mrs Bell concluded that her brother-in-law would not allow Mr Bell to be at work if he had been intoxicated. Mrs Bell had spoken to her husband's brother and he had told her that Mr Bell was all right on the day that he was working for him.
17. Mrs Bell was asked about a statement made by one of Mr Bell's friend, Mr N Crook (T11, p96). Mr Crook had noted that Mr Bell had a problem with alcohol and that on the morning of Mr Bell's fall, he had consumed some alcohol at the Condobolin RSL Club with Mr Crook. Mrs Bell was aware of the statement but noted in her view that Mr Crook was the one with the problem with alcohol. Mrs Bell was also aware of the statement by Mr H Mitchell, also a friend of Mr Bell (T11, p97). Mr Mitchell had indicated that he had consumed alcohol on the day of Mr Bell's fall on two occasions. The first occasion occurred early in the morning when Mr Bell opened the Club, as he was a director. Mr Bell returned and had "several more drinks" before returning to work with his brother at the Lachlan Shire Council Chambers. Thus, while Mrs Bell was aware of these statements about her husband’s consumption of alcohol on the day of his fall, she could only reiterate her comment that she believed her brother-in-law would not allow her husband to paint if he was intoxicated.
concurrent evidence of associate professor a j corbett, neurologist, and professor j g mcleod, neurologist
18. Associate Professor Corbett had provided a report concerning Mr Bell dated 10 December 2002 (Exhibit A2) and Professor McLeod had provided two reports in relation to Mr Bell dated 16 May 2003 (Exhibit R1) and 19 June 2003 (Exhibit R4).
associate professor corbett
19. At Hearing, Associate Professor Corbett stated that Mr Bell died on 23 December 1977, as a result of a fall down an unguarded stairwell and he sustained severe head injury, dying at the Royal Prince Alfred Hospital two days after this fall. Associate Professor Corbett opined that there were two factors contributing to the fall:
· Firstly, Mr Bell's alcohol consumption on the day of the fall, as documented by his two friends indicating that Mr Bell had consumed alcohol prior to work and at lunchtime. Associate Professor Corbett noted that it was not clearly known at what time Mr Bell consumed the alcohol and when he had his last drink. It was also not known as to what quantity of alcohol he consumed, making it difficult to be definite about the precise impact of alcohol consumption;
· Secondly, it is Associate Professor Corbett's opinion that Mr Bell had a left hemianopia, which resulted in a left visual field defect. Associate Professor Corbett believed that Mr Bell had an inferior field defect that would have significantly reduced his perception of the left side of space, such that he would not be able to see the left side of vision when looking in any direction. This would occur only if Mr Bell was moving forward but not backwards (Transcript, p52). The visual field defect could potentially have led to Mr Bell falling down an unguarded stairwell.
20. The left hemianopia was documented by Dr Vanderfield when he examined Mr Bell on 3 April 1962. Considering that time, Associate Professor Corbett noted that Mr Bell reported 15 months earlier that he had experienced the onset of blurring of his vision with a loss of vision of one side. This improved over a month but he was left with a visual field defect as described, predominantly on the left lower quadrant. The left hemianopia, in Associate Professor Corbett's view, potentially resulted in not only an inability to see the left side of space, but the right side of the brain is effected which may also lead to a relative neglect of the left side of space. Therefore, in Associate Professor Corbett's opinion, Mr Bell had more than just a visual field deficit. There may have been some lack of awareness of the left side of space that contributed to his fall. The extent of the visual defect at the time of the fall would have been the same as when it was reported or documented in 1975, by an Ophthalmologist (T7, p38). Associate Professor Corbett considered this to be a significant visual defect which would have caused Mr Bell to cease driving a vehicle.
21. Associate Professor Corbett was referred to a statement by Ms M Copeland, an employee of Lachlan Shire Council, which indicated that she saw Mr Bell take a step backwards on the stairwell (T11, p81). Associate Professor Corbett agreed that if this were correct, then Mr Bell's visual defect would not have been relevant to the fall.
22. In early 1962, Associate Professor Corbett noted that there was a record of Mr Bell having elevated blood pressure and this in his view was the first mention of an elevated blood pressure. It seemed probable to Associate Professor Corbett that the blood pressure had been elevated prior to Mr Bell's stroke and this may have been a significant risk factor for the stroke, which caused Mr Bell’s left hemianopia.
23. In relation to Mr Bell's alcohol consumption, Associate Professor Corbett noted that this had been documented as beginning during Mr Bell’s service and at the time of his death, Mr Bell was reported in a post mortem as having a large, soft, yellow, greasy liver which was consistent on sectioning with fatty liver, strongly suggestive of excessive alcohol consumption. It is Associate Professor Corbett's opinion that Mr Bell's stroke involving the right occipital part of the brain occurred in about 1960 or 1961 and this was contributed to by an excessive alcohol intake, fulfilling the relevant Statement of Principles concerning Cerebrovascular Disease. For the Statement of Principles' purposes, Associate Professor Corbett opined that Mr Bell would have had to have been consuming at least 250 grams of alcohol per week for 12 months prior to 1960 or 1961. There is not a great deal of information about the quantity of alcohol Mr Bell was actually consuming at the time, but the appearance of Mr Bell's liver suggested a long term heavy alcohol consumption. Associate Professor Corbett also noted that Mr Bell was hypertensive following his stroke and it is also possible that Mr Bell fulfilled the criteria for Factor 5(a) in the Statement of Principles for Cerebrovascular Disease as hypertension was a factor at the time of Mr Bell's stroke. In so opining, Associate Professor Corbett agreed there was a significant family history of atherosclerotic disease, probably more to do with the heart than stroke (T7, p42). Associate Professor Corbett also noted that excessive alcohol consumption over a long period of time can elevate blood pressure.
professor mcleod
24. Professor McLeod opined that there was no doubt that the cause of Mr Bell's death was as the result of a severe head injury following a fall. There was no disagreement between Professor McLeod and Associate Professor Corbett on that issue. Furthermore, Professor McLeod did not disagree that Mr Bell had a heavy alcohol intake throughout his life, supported by the evidence on post mortem of Mr Bell having an enlarged, fatty liver. Moreover, the weight of Mr Bell's liver was well over the normal weight and consistent, in Professor McLeod's view, with alcohol liver disease.
25. Both experts also agreed that the left hemianopia might have played a part in Mr Bell's fall (Transcript, p40). Although Professor McLeod considered this a speculative possibility, it could not be discounted, he stated (Transcript, pp 40, 41).
26. There was no doubt in Professor McLeod's understanding of all of the evidence that Mr Bell had a stroke in about 1962, which left him with a left hemianopia. Dr Vanderfield, who was a Neurosurgeon, had documented that at the time. Once a person had a hemianopia from a stroke, then it persisted but in Professor McLeod's view, people adjust to it and the effects of the hemianopia may diminish to some extent over the period of time. It was Professor McLeod's view that it was not known precisely to what degree Mr Bell's hemianopia interfered with his way of living. Professor McLeod noted that Mr Bell was still able to work although he was disqualified from driving. The cause of original stroke in 1962 seems to have been as a result of the cerebral infarction in the parietooccipital region on the right side. There did not appear to be any weakness of limbs or reflex changes that he was aware of and Professor McLeod opined that Mr Bell was still able to function quite well.
27. Considering the cause of Mr Bell’s stroke, Professor McLeod opined that it was almost certainly caused by hypertension as Mr Bell had extensive cerebrovascular disease in addition to cardiovascular disease. He had myocardial infarctions in 1972 and 1975. There was a background of hypertension and artheromatous disease demonstrated at autopsy and cerebrovascular and cardiovascular disease. Professor McLeod accepted what Associate Professor Corbett had stated speculatively, that the hemianopia could have caused Mr Bell to fall down the stairs because he could not see to the left side. Professor McLeod explained that Mr Bell’s hemianopia was like a blind spot on the left side. Professor McLeod presumed that it was this condition which led to Mr Bell's cessation of driving because a driving licence would not have been issued to him. Considering the diagrammatic representation of Mr Bell's visual field (T7, p38), it indicated to Professor McLeod that Mr Bell could not perceive objects in the field of vision blacked out on the left side of the diagram. If Mr Bell was looking straight ahead, he would not have had any difficulty in seeing a face in front of him. In Professor McLeod's view, Mr Bell's hemianopia was not particularly bad. However, because of Mr Bell's visual field defect and considering the police report made by Sergeant W R Hansen (T11, p72) and the plan of the location of Mr Bell's fall (T11, p73), Professor McLeod agreed it could be possible that with the unguarded stairwell, Mr Bell's visual problem on his left could have meant that he was outside his field of vision when he fell. The difficulty of course, is that it is not known what direction Mr Bell was moving in when he fell. If, for example, he was looking up towards the top of the area, then that would have been part of his visual field that would have been most impaired and that is low down on the left side which was where the stairs area was located.
28. In relation to the influence of alcohol, Professor McLeod noted that even in quite small amounts, alcohol impairs balance. Professor McLeod opined that it could well have been that Mr Bell was unsteady on his feet as the result of the alcohol he consumed at lunch. If he was moving in a small one metre space, then he could have had impaired judgement and balance due to the fact that he had been drinking alcohol, regardless of what influence there might have been from the hemianopia.
29. Professor McLeod and Associate Professor Corbett agreed that the absence of observation of what happened in the relation to Mr Bell's fall, allows the possibility that the fall might have related to his hemianopia but that it was a reasonable hypothesis that there were a number of other variables, such as alcohol.
30. In relation to the condition of hypertension, Professor McLeod noted that a clinical examination on service on 8 March 1946, recorded a blood pressure reading of 140/90, which indicates hypertension, mildly elevated. At that time, this reading may have been accepted in the Air Force but it is now considered as an indication of hypertension. Both Professor McLeod and Associate Professor Corbett noted that the 1946 blood pressure record was a one off reading and it is not known whether or not hypertension continued. Professor McLeod stated that it was known that Mr Bell had hypertension throughout his life with atheroma and cardiac hypertrophy due to hypertension, as evidenced at autopsy. The mild hypertension which Professor McLeod considered to be present throughout Mr Bell's life was an important factor in suffering a stroke and two myocardial infarctions. Associate Professor Corbett opined however, as agreed by Professor McLeod, that there is a long history of hypertension extending back at least to the immediate end of Mr Bell's service in the Air Force.
evidence of dr j duflou, forensic pathologist
31. Dr Duflou provided a report, dated 28 May 2003 (Exhibit R2). Dr Duflou noted that the post mortem revealed that Mr Bell died of a head injury, having sustained a skull fracture, a large haemorrhage and bleeding into the ventricles of the brain. Mr Bell's heart was enlarged, there was extensive evidence of scarring in the left ventricle and large arteries in the body indicating advanced atherosclerosis. Mr Bell's liver was described as "Liver (2185 g) Liver was soft and yellow. On sectioning it was greasy". A specimen of blood taken at post mortem found no alcohol present in the blood.
32. Dr Duflou opined that the absence of alcohol in the blood at the time of death cannot be construed to imply that Mr Bell was not affected by alcohol at the time of the actual accident, approximately 42 hours prior to his death. Dr Duflou noted that alcohol is metabolised at a fairly constant rate by an individual. Furthermore, Dr Duflou noted that an enlarged fatty liver is the most common pathological feature of excessive alcohol consumption over a considerable period of time. A normal male liver for an adult weighing approximately 87 kilograms would be 1700 grams. A liver weighing over 2000 grams is abnormally large, Dr Duflou reported. Given the description of Mr Bell's liver, a diagnosis of steatosis or fatty liver can be made.
33. At the time of the autopsy in 1977, it was not the practise to undertake histopathological examination of the liver. Dr Duflou opined that the liver features described in the autopsy "give a strong indication that the deceased ingested excessive quantities of alcohol over some considerable period of time". In Dr Duflou's opinion, it was highly likely that the cause of Mr Bell's fatty liver was past excessive alcohol consumption.
statement by mr norman crook
34. Mr Crook provided an undated, unsworn Statement noting that he was a long term friend of Mr Bell’s who had also served in the Air Force. Mr Crook opined that Mr Bell had a problem with the amount of alcohol he consumed and that on the morning of Mr Bell’s fall, Mr Bell had consumed alcohol (T11, p96).
statement by mr herbert mitchell
35. Mr Mitchell provided an undated, unsworn Statement noting that on the day of Mr Bell’s fall, he had a “few drinks” with Mr Bell when Mr Bell opened the RSL Club. Mr Bell, Mr Mitchell and Mr Crook were the first customers. At lunch time that same day, Mr Bell was reported by Mr Mitchell to have returned to the RSL Club to consume “several more drinks”, after which, Mr Bell returned to help his brother paint at the Lachlan Shire Council (T11, p97). Mr Mitchell opined that Mr Bell’s alcohol consumption on the day, contributed to his fall.
consideration and findings
36. We have made a decision in this matter taking into account the oral and documentary evidence, the legislation and the case law.
37. In dealing with this case, as is often the situation with War Widow’s Pension claims, the veteran's service occurred many years ago, the veteran is not able to provide direct evidence and the veteran's widow, family and friends have to recall details often forgotten or indeed not known. Section 119 of the Act may assist the decision-maker in dealing with such issues, but cannot be used to plug evidentiary gaps or to invent evidence as was discussed in Mason v Repatriation Commission [2000] FCA 1409.
38. A starting point in this matter, as was submitted by Mr Marsh, is that the Tribunal must determine what kind of death Mr Bell suffered as was outlined in Repatriation Commission v Hancock (2003) 37 AAR 383. Both Associate Professor Corbett and Professor McLeod agreed, as did the Coroner, that Mr Bell died as a result of severe head injury following a fall from a stairwell. This is also supported by Dr Duflou’s opinion. The Tribunal is reasonably satisfied on the balance of probabilities that Mr Bell died as a result of the severe head injuries he sustained when he fell from the stairwell at the Lachlan Shire Council Chambers. The Tribunal has some support in its finding in relation to the kind of death as discussed in Benjamin v Repatriation Commission (2001) 70 ALD 622.
39. There is no Statement of Principles which deals with Mr Bell's circumstances of dying as a result of head injuries. Accordingly, the Tribunal must apply the principles outlined in the High Court decision in Byrnes v Repatriation Commission (1993) 177 CLR 564, in which it was determined that as a first step, subsection 120(3) of the Act must be applied to decide whether or not the material raises a reasonable hypothesis connecting, in this case, the cause of death with war service. If the hypothesis is found not to reasonable, then the claim would necessarily fail. If however a reasonable hypothesis was found to exist, then subsection 120(1) of the Act is to be applied to ascertain whether or not the facts support the raised reasonable hypothesis. A claim would be successful if one or more of the facts necessarily supporting the hypothesis are not disproved beyond reasonable doubt. These circumstances were also discussed in Bushell v Repatriation Commission (1992) 175 CLR 408.
40. The Applicant has made a number of hypotheses in this matter. Firstly, it is hypothesised that Mr Bell had a war-caused alcohol consumption habit and that this caused him to drink excessively from the time of the war. It was as a result of an excessive drinking habit that Mr Bell consumed alcohol on the day he fell on the stairwell and as a result he sustained severe head injuries which led to his death. Because Mr Bell was affected by alcohol on the day of his fall, his balance and judgement were compromised. There are a number of links in that hypothesis and applying McKenna v Repatriation Commission (1999) 86 FCR 144 each of the links of hypothesis must be proven.
41. Another hypothesis put by the Applicant is that as a result of Mr Bell's war-caused drinking habit, this led to his stroke in about 1962, and as a result of that, Mr Bell suffered from a left hemianopia causing him a left visual field defect. It is hypothesised that on the day of Mr Bell's fall, because of the left visual field defect, he was not able to properly judge or see a space in which he was working and as a result, he fell. There is a further hypothesis, not strongly put by the Applicant, that Mr Bell had a war-caused hypertension leading to stroke and then the left visual field defect, which precipitated his fall.
42. In relation to the sub-hypothesis of Mr Bell having a war-caused alcohol consumption habit, in line with East v Repatriation Commission (1987) 16 FCR 517, it must be found that for the hypothesis to be reasonable it must be pointed to by the material. Furthermore, as noted in the Full Federal Court decision in Bull v Repatriation Commission (2001) 66 ALD 271, for an hypothesis to be reasonable, it requires more than there being mere possibility and the material must point to that hypothesis.
43. Considering the required steps in determining a reasonable hypothesis, at the stage of the application of subsection 120(3) of the Act, we are not making any finding of facts. The material points to Mr Bell coming from a family in which alcohol consumption was not allowed. The material further indicates that when Mrs Bell first met her husband he did not consume alcohol and then when she next saw him after, she thought, service in the United Kingdom, though it is not fully clear, Mr Bell was consuming alcohol. The material then indicates that Mr Bell continued to drink, sometimes more, sometimes less, during different periods of his life. On his death, at post mortem, he is found to have a yellow, fatty, greasy liver which various medical experts have indicated points to an excessive alcohol consumption. The Tribunal finds that on the material available to it, the hypothesis raised of Mr Bell having a war-caused alcohol consumption habit is made out. The material points to it, there is nothing fanciful or unrealistic about it, and accordingly, pursuant to subsection 120(3) of the Act, the Tribunal considers that on the material available, a reasonable hypothesis is raised within the meaning of subsection 120(3) of the Act.
44. Given the above finding, the Tribunal now considers the application of subsection 120(1) of the Act and whether or not we are satisfied, beyond reasonable doubt, that there is no sufficient ground to determine that the sub-hypothesis that Mr Bell had a war-caused alcohol consumption habit is made out. As was noted in Repatriation Commission v Deledio (1998) 83 FCR 82, in the different context of the application of Statements of Principles but still with some relevance in this case in relation to the correct application of subsection 120(1) of the Act, a decision-maker must consider “…whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.” There is not sufficient evidence, in the Tribunal’s view to dispute that prior to Mr Bell's Air Force service, he did not consume alcohol. This is supported by Mrs Bell's evidence and the Tribunal accepts Mrs Bell as a credible and forthright witness. Furthermore, the Tribunal accepts Mrs Bell's evidence that she was told by her sister-in-law that her parents-in-law did not allow the consumption of alcohol.
45. It is argued by Mr Marsh that there is merely a temporal connection between Mr Bell's Air Force service and his consumption of alcohol. In Repatriation Commission v Hughes (1990) 13 AAR 34, a similar submission was put by the Applicant in relation to Mr Hughes’ smoking. As Davies J stated, an hypothesis is an unproven theory or supposition. Certainly the material points to more than a temporal connection in the Tribunal's view in relation to alcohol consumption. The Tribunal notes Mrs Bell's evidence that her husband was a changed person after war service compared to his sunny disposition prior to the service. She had detailed experiences she believed occurred in the United Kingdom, where her husband was having to clean aircraft in which the crew or pilot had been wounded. While it appears certain that Mr Bell was in the United Kingdom at the end of the war and it appears that Mrs Bell has mixed up the chronology, it is certainly the case that Mr Bell’s service in Darwin included the experience of bombings by the Japanese. Mr Bell was in Darwin during November 1942 until June 1943 in which there are reported casualties as a result of Japanese bombing with some deaths also reported (T11, p95). Furthermore, Mrs Bell's evidence, which is accepted by the Tribunal, is that her husband lost an Air Force friend, who was killed when they were serving in Darwin. Mrs Bell in her statement indicated that her husband was upset about this event. Mr Bell avoided anything which reminded him of his service such as movies and when he attended Anzac Day services, these always made him very emotional.
46. As was discussed in Bull v Repatriation Commission (supra), people who experience stress sometimes cope by consuming alcohol. Also in that case, it was noted by the learned Judges, that drinking may also be explained, for example, by a liking for the convivial company of former service friends or simply an increased liking for alcohol consumption, especially after sporting activities [at paragraph 42]. Thus, in Mr Bell's case, it could have been that he increased his drinking consumption because of his work as a shearer, decreased it because of family responsibilities and increased it because later in life, he became an Office Bearer at the local RSL Club. We consider however, that there is sufficient support from the evidence to allow the Tribunal to find that, as a result of Mr Bell’s war experience, principally related to his experience in Darwin where there was active warfare resulting in death and injury and specifically the death of his friend, that those experiences led to Mr Bell commencing his alcohol consumption as a habit, not because of any temporal relationship between the availability of alcohol and service, but because of the stress he experienced during the course of active service. It is also the Tribunal's view that the alcohol consumption may have lessened or increased over the years for a combination of reasons related to service and non-service factors. However, we are of the view that the establishment of an alcohol consumption habit occurred, which became excessive as a result of the material contribution of war service and which did not diminish over the years.
47. In relation to the Applicant’s further hypothesis of Mr Bell having an excessive alcohol consumption over a long period of time causally related to the war, the Tribunal has already found that there is a causal relationship between the commencement of consumption of alcohol and Mr Bell's service. The opinions from Associate Professor Corbett and Professor McLeod were in agreement with the opinion provided in the report of Dr Duflou, that long-term excessive alcohol consumption is not something that would have occurred in recent times. Again, this is not fanciful or speculative that there was a long-term excessive use of alcohol. It is supported by the material and agreed to by the eminent medical experts in the field of neurology and of forensic pathology. Thus, we are of the view that pursuant to subsection 120(3) of the Act, the material supports a reasonable hypothesis that Mr Bell’s war-caused alcohol consumption habit became excessive and was longstanding. Applying subsection 120(1) of the Act, and having considered the whole of the material available to us, we are not satisfied beyond reasonable doubt, that there is no sufficient ground for determining that Mr Bell’s war-caused alcohol consumption was excessive and longstanding. We find that the links in the sub-hypotheses have been proven beyond reasonable doubt and that is, that Mr Bell had a war-caused alcohol consumption and that he consumed alcohol excessively over a long period of time.
48. The next and final link in the hypothesis proposed by the Applicant is that on the day Mr Bell fell, he had consumed alcohol and that this led to some error in judgement or impaired balance causing him to fall and suffer severe injuries. In relation to looking at whether there is a reasonable hypothesis pursuant to the requirements of subsection 120(3) of the Act, there are statements in the material from Mr Bell’s colleagues, Mr Crook and Mr Mitchell, indicating that they consumed alcohol with Mr Bell on the day he fell, commencing with the opening of the local RSL Club. There is also in material a statement from Mr Mitchell that at lunchtime he and Mr Bell had "several more drinks" after which Mr Bell returned to the Lachlan Shire Council Chambers. There is also material from Associate Professor Corbett and from Professor McLeod that the consumption of alcohol even in small amounts impairs balance and judgement. While it is true that it is not known what quantity of alcohol Mr Bell consumed, certainly at this stage of establishing whether or not there is a reasonable hypothesis raised, it is not speculative or fanciful and as supported by the material, that alcohol consumed by a person over a period of time in a day could lead to a loss of judgement and balance. Accordingly, pursuant to subsection 120(3) of the Act, we are of the opinion there is sufficient material available to support a reasonable hypothesis that consumption of alcohol by Mr Bell in the morning and at lunchtime on the day of his fall, caused him to overbalance or loose judgement just prior to his fall.
49. Turning then to the application of subsection 120(1) of the Act, we must determine whether or not one or more of the facts necessary to support the raised reasonable hypothesis are disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. The claim will succeed, unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making the determination that Mr Bell consumed alcohol on the morning and at lunchtime of the day of his fall which impaired his balance and /or judgement and caused him to fall. Mrs Bell states that her husband, whom she met in 1944 when he was on leave, did not drink at that time. They were married in December 1944, after which he undertook service in the United Kingdom in 1945. When he returned in December 1945, he was drinking alcohol. In her statement to the Department of Veterans' Affairs made on 18 September 2001 (T12), Mrs Bell wrote that she considered her husband’s death was a result of poor judgement after drinking. In evidence to the Tribunal, Mrs Bell noted that she found it difficult to talk about her husband's drinking and she also said that she found it difficult to accept that her brother-in-law would have allowed her husband to paint if he had been intoxicated. It is, as Mrs Bell stated and in the Tribunal's experience, difficult for widows to talk about their husbands’ difficulties, including, as relevant in this matter, the consumption of alcohol, particularly in the context of preserving a positive memory of a deceased husband.
50. Thus, while it may appear that Mrs Bell's evidence is contradictory, the Tribunal is of the view that this evidence must be considered in light of the difficulty Mrs Bell expressed in terms of discussing her husband’s drinking habit. In addition, as was urged in Bull v Repatriation Commission (supra), the Tribunal must consider all of the available material. Other material available to the Tribunal from Professor McLeod is that there does not need to be a large amount of alcohol consumed before balance and judgement are impaired. Furthermore, there has been discussion about the absence of alcohol in Mr Bell's blood at the time of post mortem. It is not surprising, as Dr Duflou reported and as agreed by Associate Professor Corbett and Professor McLeod, that no blood alcohol reading was taken at the time of the fall, that is, upon of admission to Condobolin District Hospital, but the blood alcohol test was undertaken some 42 hours later after Mr Bell’s death by which time any alcohol in Mr Bell's system would have metabolised, on the opinions provided by the medical experts. While Mr Marsh submitted that it was speculative to consider that alcohol played a part in Mr Bell's fall when it was not known what quantity of alcohol was consumed on the day of the fall, given Professor McLeod's opinion that not very much alcohol needs to be consumed to impair balance or judgement and given the evidence accepted by the Tribunal that Mr Bell consumed alcohol on the morning of his fall as well as at lunchtime and that the fall occurred at sometime around 3pm, it is conceivable and not out of the realm of possibility that the amount of alcohol consumed even if small, would have impaired Mr Bell's judgement and balance when working in the stairwell.
51. The Tribunal also notes that while the statements from Mr Mitchell and Mr Crook are unsworn and undated, there is nothing to disprove their statements beyond reasonable doubt, particularly in view of the objective medical evidence that Mr Bell had a very large, yellow, fatty liver which indicated long-term excessive alcohol use. This is why, as the Federal Court urges decision-makers, it is so important to consider the whole of material available.
52. This has been a difficult case in which to make a determination. We have considered the difficulties with the lack of specific details about quantity of alcohol consumed at various times and of gaps in the evidentiary trail. The Tribunal is dealing with beneficial legislation and while there are difficulties in the factual material as envisaged by section 119 of the Act, when all of evidence is considered as a whole, the Tribunal is not satisfied beyond reasonable doubt for the purposes of subsection of 120(1) of the Act, that there is not sufficient ground to determine that Mr Bell's death was war-caused. Thus, the Tribunal finds that Mr Bell had a war-caused excessive alcohol consumption problem and that this was evident on the day of his fall when he consumed alcohol both in the morning and at lunchtime following which he fell from the stairwell sustaining severe head injury which eventually led to his death. Thus, the Tribunal has decided pursuant to section 43 of the Administrative Appeals Tribunal Act1975 to set aside decision under review and to determine that:
(1) the death of Mr Noel Bell was war-caused pursuant to section 8 of the Act;
(2) Mrs Constance Bell is eligible for a War Widow's Pension from and including 6 May 2001.
53. In relation to the hypothesis put by the Applicant that Mr Bell's war-caused excessive drinking habit caused his stroke which in turn led to his left hemianopia and that this left field vision deficit caused him to misjudge and fall from the stairwell, the Tribunal will not go into a great deal of detail in this matter, having already found for the Applicant. However, it may well be that Mr Bell's circumstances satisfy Factor 5(e) of Instrument Number 52 of 1999 as amended by Instrument Numbers 30 of 2002 and 57 of 2003 concerning Cerebrovascular Accident in that Mr Bell consumed alcohol in excess of 250 grams over a certain period. However, the next link in the hypothesis that the visual field deficit caused Mr Bell to fall, is not, in the Tribunal’s view, raised by the material at the stage of the application of subsection 120(3) of the Act. The material indicates that Mr Bell was walking backwards when he fell. Furthermore, the material also indicates, from the evidence of Professor McLeod and Associate Professor Corbett, that if Mr Bell was walking backwards, then the left visual field deficit would have played no part in causing him any difficulty with vision. Thus, the hypothesis is not supported by the material and cannot be considered reasonable, pursuant to subsection 120(3) of the Act.
54. In relation to the alternative submission that Mr Bell had war-caused hypertension as a result of excessive alcohol consumption which in turn led to the stroke leading to the left visual field deficit and subsequent fall, the Tribunal considers that there is not sufficient material to support hypertension as a war-caused condition and agrees with Mr Marsh in his submission that such an hypothesis is extremely speculative.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr JD Campbell, Member
Signed:......................................................................................
AssociateDate of Hearing 5 August 2003
Date of Decision 3 February 2004
Counsel for the Applicant Mr A HillRepresentative for the Applicant Ms N Archer, Dibbs Barker Gosling
Representative for the Respondent Mr J Marsh, Departmental Advocate
SCHEDULE 1
NUMBER DESCRIPTION DATE A1 Statement of Mrs C Bell 11 October 2002 A2 Report of Associate Professor AJ Corbett, Neurologist 10 December 2002 R1 Report of Professor JG McLeod, Neurologist 16 May 2003 R2 Report of Dr J Duflou, Forensic Pathologist 28 May 2003 R3 Clinical Notes from Royal Prince Alfred Hospital Various R4 Further Report of Professor JG McLeod, Neurologist 19 June 2003 SCHEDULE 2
Legislation
1. Section 8 of the Act deals with war-caused death and states as relevant:
"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…"
2. Section 11 of the Act deals with dependents and specifically, a dependent in relation to a veteran includes a widow.
3. Section 13 of the Act deals with eligibility for pension and as relevant states:
“13 Eligibility for pension
(1) Where:(a) the death of a veteran was war-caused; or
(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act
..”.
4. Section 119 of the Act reflects that the decision-maker is not bound by technicalities, that the Act is of an administrative nature rather than judicial and also allows the decision-maker to take into account matters such as the effect of the passage of time, the absence or deficiency in records or the unavailability of witnesses, in this case, Mr Bell, the deceased veteran.
5. As Mr Bell rendered operational service, this matter must be determined by the Tribunal in accordance with subsections 120(1) and (3) of the Act which state:
“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.
…”
6. Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be assessed by reference to a relevant Statement of Principles, if one exists.
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