Betty Thompson and Repatriation Commission
[2014] AATA 518
•29 July 2014
[2014] AATA 518
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4220
Re
Betty Thompson
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Date 29 July 2014 Place Brisbane We set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension with effect from 17 May 2012.
..............................Sgd..........................................
Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Death of veteran – Death by hypertension – Operational service – Statement of Principles concerning Hypertension (Instrument No 63 of 2013) – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war caused – Decision under review set aside and substituted
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth), ss 5E, 6B, 7, 8, 11, 13, 14, 120, 120A, 196A, 196B
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Collins v Repatriation Commission (2009) 258 ALR 204
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Gilbert v Repatriation Commission (1989) 86 ALR 713
Knight v Repatriation Commission [2010] FCA 1134
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 147 CLR 635
Repatriation Commission v McKenna [1998] FCA 787
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Warren [2008] FCAFC 64SECONDARY MATERIALS
Statement of Principles concerning Hypertension (Instrument No 63 of 2013)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
29 July 2014
INTRODUCTION
Betty Thompson (“the applicant”) was a dependent of the late Walter Thompson
(“the veteran”) who served in World War II. The applicant has made a claim for a war widow’s pension. We have to determine whether the death of the veteran was related to his service during the war.
PRIOR DECISIONS
On 17 May 2012 the applicant made a claim for a war widow’s pension.
On 31 May 2012 a delegate of the Repatriation Commission rejected her claim.
On 25 July 2013 the Veterans’ Review Board (“VRB”) affirmed the decision of the delegate. The applicant now has sought review of the decision by this Tribunal.
SERVICE
The veteran rendered “eligible war service” in the form of operational service with the Royal Australian Navy from 5 October 1942 to 29 July 1946.[1]
[1] As defined by ss 6B and 7 of the Act.
LEGISLATIVE FRAMEWORK
Section 8 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) provides for when the death of a veteran is taken to be war-caused. This provision applies where, relevantly under s 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
Section 13(1) of the Act provides, relevantly, that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.
Section 14(1) of the Act provides for a dependant of a deceased veteran to make a claim for a pension. Section 11 provides for a dependant to include a “widow”.
Section 5E of the Act defines a “war widow” to be a woman who was the partner of a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran.
As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and (3) of the Act.
Section 120(1) of the Act provides that where a claim for a pension is made:
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.
Section 120(3) of the Act also provides that
In applying [s 120(1)] 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.
STATEMENT OF PRINCIPLES
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”) which is an independent medical body that issues Statements of Principles based on sound medical-scientific evidence which set out factors relating to service which must exist in order to establish a causal connection between particular diseases, injuries or death, and service.
Section 196B(2) of the Act provides that if the RMA:
(2) … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans;
…
[they] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.
A Statement of Principles is binding on decision-makers at all levels, including this Tribunal.
The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides, relevantly, that a factor causing an injury, disease or death is “related to service” rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
In the case of applications lodged after 1 June 1994, where the RMA has made a Statement of Principles in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This is followed by the application of s 120A(3) of the Act, which provides that:
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
DEATH OF THE VETERAN
The death certificate records that the veteran died in 2012, the causes of death being:[2]
1 (a) End stage kidney failure (b) Metastatic malignancy likely prostate.
2. Ischaemic heart disease, prostate cancer, type II diabetes, bowel cancer, hypertension.
[2] See Exhibit A, p 29.
CONSIDERATION
We are required to consider the applicant’s claim in accordance with the Repatriation Commission v Deledio[3] (“Deledio”) four-step process.[4]
[3] (1998) 83 FCR 82 at 82-83.
[4] Repatriation Commission v Bawden [2012] FCAFC 176 at [40].
In Deledio, the Full Court of the Federal Court of Australia provided guidance on the four steps which we are required to consider:
(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a [Statement of Principles (SoP)] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
(iv) The Tribunal must then proceed to consider under s 120(1) 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. In so doing, no question of onus of proof or the application of any presumption will be involved.[5]
[5] Deledio at 82-83.
[7] (2007) 163 FCR 35 at [31].
In Forrester v Repatriation Commission,[6] Mortimer J observed that in
Collins v Administrative Appeals Tribunal,[7]Allsop J (as he then was) pointed out that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.
[6] [2013] FCA 898.
Step 1 of Deledio
In this first Deledio step we are required to examine the material to ascertain whether the material points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. It has been said that “a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact”.[8]
[8] Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
[10] (1996) 41 ALD 212.
In Forrester v Repatriation Commission,[9] Mortimer J has pointed out that “whether material points to or supports a hypothesis is, of its nature, a matter which can be determined by inference or assumption”. Her Honour remarked that in
Repatriation Commission v Stares[10](a pre-Deledio case), the Full Court held that “assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the
Deledioapproach”.
[9] [2013] FCA 898 at [30].
There is certainly no direct evidence that the veteran began to drink alcohol for the first time during his service in the war. The applicant has stated that she first met the veteran in 1948 when he was working with Burns Philp as a sales representative. In that capacity the veteran had to visit hotels in the course of his employment selling alcohol. The applicant stated that the veteran in his occupation would drink at the hotels. The veteran worked at Burns Philp for two years and left the position because he was drinking too much. We consider that it is reasonable to assume that the veteran would not have taken such a position if he was not then a seasoned drinker. As the veteran came from a home where his father was an Anglican canon who did not drink alcohol it is reasonable to assume that he gained his alcohol habit during the war when he was exposed to stress as the report of Dr Palazzo indicates.
We accordingly consider that the material before us points to a hypothesis that the veteran commenced drinking alcohol during wartime, this caused the veteran to become a heavy drinker after the war, this heavy consumption of alcohol by the veteran contributed to his hypertension condition which was a cause of renal failure which has been certified to be a cause of the death of the veteran.
Step 2 of Deledio
We are required to ascertain whether there are in force any Statements of Principles issued by the RMA under ss 196B(2) or (11) of the Act. We have ascertained that the Statement of Principles concerning Hypertension (Instrument No 63 of 2013) (“the SoP”) is in force.
Step 3 of Deledio
In assessing whether a raised hypothesis is “reasonable”, it is important to have regard to the decision of the High Court of Australia in Byrnes v Repatriation Commission,[11] which held, at 569,[12] that a reasonable hypothesis is raised when “the material points to some fact or facts ('the raised facts') which support the hypothesis”. Furthermore, the High Court said, at 571, that in relation to this step:
The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
[11] (1993) 177 CLR 564.
[12] Citing Mason CJ and Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
Since 1 June 1994, in accordance with s 196B(8) of the Act, to assist a decision-maker in establishing whether an applicant's hypothesis is reasonable, for the purposes of the Act, a decision-maker must refer to the relevant Statement of Principles issued by the RMA. Therefore, this Tribunal must ascertain if it has material before it which fits the template for the relevant Statement of Principles. We are conscious that it has been held that the material must pose a credible proposition, not too remote or too improbable; it must be:
... more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.[13]
[13] East v Repatriation Commission (1987) 16 FCR 517 at 532-533.
Accordingly, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility.[14] The High Court of Australia held in Bushell v Repatriation Commission[15] that the s 120(3) test will reveal a reasonable hypothesis where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with operational service”.
[14] Gilbert v Repatriation Commission (1989) 86 ALR 713 at 721; Repatriation Commission v Bey (1997) 79 FCR 364.
[15] (1992) 175 CLR 408 at 416.
In Repatriation Commission v McKenna[16] Goldberg J emphasised that “it [was] fundamental to any enquiry under ss 120 and 120A of the Act to identify the relevant hypothesis”.
[16] [1998] FCA 787.
The hypothesis advanced by the applicant in the statement of facts and contentions dated 5 May 2014 is as follows:-
a.The applicant contends that at the time of his death, the veteran was suffering from long-standing hypertension. Shortly prior to his death, the deceased veteran was hospitalised as a result of suffering a respiratory infection. Prior to his death, the deceased veteran was suffering from hypertension kidney disease. The deceased veteran’s kidney function was impaired prior to the infection because of the long-standing effects of hypertension on his kidney function. At the time of his death, the deceased veteran suffered a rapid deterioration in his kidney function leading to death (see the report of Dr Kenneth Hossack Cardiologist).
b.The applicant contends that the veteran’s excessive consumption of alcohol throughout his post-World War II life caused him to subsequently develop hypertension.
c.The applicant contends that the veteran was a non-drinker at the time that he joined the RAN. The applicant contends that the veteran’s father was an Anglican Minister and the family did not drink alcohol.
d.It is the applicant’s contention that the veteran commenced to consume alcohol heavily during his service with the RAN as a consequence of the stressful nature of that service in a warlike environment in which the veteran was engaged (see the historical report of Dr Palazzo).
e.
The deceased veteran was a very heavy drinker throughout his post World War II life (see the statements of the applicant and the applicant’s sons and nephew). The applicant met the deceased veteran in 1948 and married him on
18 December 1948. In 1948, the deceased veteran was drinking very heavily. The applicant refers to ‘mischief’’ that the deceased veteran and his ex-servicemen friends got up to that involved alcohol. From 1948 onwards, there is evidence from the applicant, and subsequently from the deceased veteran’s nephew and his children as to the frequency and quantity of alcohol consumed by the deceased veteran. On the evidence, the Tribunal will readily find that the deceased veteran was a heavy drinker, consuming at least 300 grams of alcohol per week but most likely exceeding that amount of alcohol.
f.The applicant therefore submits that the causal link between the death of the veteran and his war service is established on the evidence and that she is entitled to be paid widow’s pension as and from 3 April 2012.
The respondent in the statement of facts and contentions dated 23 June 2014 responded to the applicant’s statement of facts and contentions by stating that “the single issue between the parties is whether the [veteran’s] alcohol habit was war caused. In every other respect the respondent concedes the applicant’s contentions”.
These statements of facts and contentions which have been provided in accordance with the General Practice Direction provide the background against which each party formed its case and interchanged with the Tribunal in the course of the hearing.[17] The respondent certainly accepts that the veteran had an alcohol habit but does not concede that the alcohol habit was war caused.
[17] Repatriation Commission v Warren [2008] FCAFC 64 at [92] per Logan J
We are required to determine the “kind of death” that is applicable to the veteran.
The expression “kind of death” refers to the medical cause or causes of death.[18] It has been held that there may be more than one cause of death.[19] In reliance on the death certificate we find that one cause of death of the veteran is hypertension.
[18] Repatriation Commission v Hancock [2003] FCA 711 at [8]-[9] per Selway J.
[19] Repatriation Commission v Law (1980) 147 CLR 635 at 648; Collins v Repatriation Commission (2009) 258 ALR 204 at [51].
Clause 9 of the SoP provides:
"death from hypertension" in relation to a person includes death from a terminal event or condition that was contributed to by the person’s hypertension;
The SoP in cl 4 indicates that the RMA is of the view that there is sound medical-scientific evidence that indicates that death from hypertension can be related to relevant service rendered by veterans. As one cause of death was hypertension, there is no issue that this condition comes within the definition of hypertension in cl 3(b) of the SoP.
Clause 5 of the SoP provides, subject to cl 7 (which is not material in this matter), that at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person.
We have to consider whether a reasonable hypothesis has been raised connecting death from hypertension with the circumstances of the veteran’s relevant service. Clause 6 of the SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from hypertension with the circumstances of a person’s relevant service is:
(b) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension.
The applicant has quite properly acknowledged that it is not possible to determine the date when there was the clinical onset of hypertension. However, Dr Hossack has reported on the long history of hypertension suffered by the veteran: he has referred to the progress notes from the Deagon Family Clinic which indicates that the veteran was receiving hypertensive treatment in March 2002. The medical chronology that was admitted into evidence indicates that from 2004 the veteran had a number of documented incidents of hypertension. We therefore assume that the clinical onset of hypertension would have been sometime before the veteran received treatment in 2002.
We consider that the material before us satisfies cl 6(b) which requires that the veteran had to consume an average of at least 300 grams of alcohol per week for at least the
six months before the clinical onset of hypertension. It was not in issue that the veteran had consumed alcohol at this level of consumption (about 4 standard drinks per day) for some period of time before 2002. The respondent has quite properly recognised that the veteran had an alcohol habit.
The applicant in her evidence and in her statement has verified that the veteran had heavily consumed alcohol when he was married to the applicant in 1948. The applicant stated that at this time the veteran would “get up to mischief” after he drank with his comrades.
The sons of the veteran have provided statements which verify the heavy alcohol consumption of their father. Mr Edward Thompson, Mr Malcolm Thompson and
Mr Anthony Thompson have stated that when they were living in Stanthorpe the applicant would regularly drink at the pub after work and spend about 3-4 hours at the pub before coming home. Mr Edward Thompson had stated that the veteran was a heavy consumer of alcohol: when he was young his father would consume a “tallie” of beer and some rum. Later after they moved to Sandgate in 1966, Mr Edward Thompson stated that the veteran would have two to three stubbies every day or two usually followed by a glass of rum. Mr Anthony Thompson stated that after they moved to Sandgate the veteran would drink at the bowls club after work. Mr Alasdair McDougall, the veteran’s nephew, has stated that when the veteran visited the bowls club he would usually have 3-6 beers on these occasions.
The alcohol consumption of the veteran is recorded in contemporaneous medical notes. Dr Brown had reported that in November 1993 the veteran had what was then considered to be “a moderate alcohol consumption of beer and rum up to 6 drinks per day”.
The veteran continued his heavy consumption of alcohol after he had been diagnosed with hypertension. The clinical notes of the Redcliffe Hospital reveal that in 2004 the veteran would regularly consume two whiskies in the evening and at times a small glass of red wine.
The evidence before us indicates that the veteran had a heavy consumption of alcohol for at least the required six month period before the clinical onset of hypertension.
What is in issue is whether the heavy alcohol consumption of the veteran is related to his service. There is evidence before us which indicates that the veteran was a very heavy drinker after World War II. There is no evidence that the veteran began to drink alcohol for the first time during his service in the war. The veteran would consume alcohol to excess in 1948 when he was working with Burns Philp as a sales representative. We have earlier mentioned that it is reasonable to assume that the veteran would not have taken such a position if he was not then a seasoned drinker. The veteran at the time of his enlistment would not have consumed alcohol in view of his age and his family background with his father being an Anglican canon who did not drink.
Dr Palazzo in his report, which has been accepted in toto by the respondent, has indicated that the veteran was exposed to stressful service. The veteran participated in the landing at Finschhafen as an amphibious scout, and at Scarlett beach his commanding officer was killed whilst coming under fire from the Japanese. The report of Dr Palazzo was written after the claim of the applicant was considered by the VRB.
In determining whether there is a reasonable hypothesis, we are conscious that the
High Court of Australia in Bushell v Repatriation Commission[20] explained, at 413, that
s 120(3) of the Act is:
not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis.
[20] (1992) 175 CLR 408.
In Knight v Repatriation Commission[21] Katzmann J explained that “the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis”.[22]
[21] [2010] FCA 1134.
[22] [2010] FCA 1134 at [35].
We consider that there is a reasonable hypothesis that the death of the veteran is connected with the circumstances of his service. There is material pointing to the veteran being exposed to stress whilst he was on operational service; we consider that it is reasonable to assume that this caused the veteran to become a heavy drinker of alcohol after World War II. This hypothesis fits the template that the veteran consumed alcohol at the rate that is prescribed by cl 6(b) of the SoP for six months before the clinical onset of hypertension, which is one cause of the death of the veteran. In view of this conclusion it is not necessary that we consider any hypothesis related to the death of the veteran from renal failure.
Step 4 of Deledio
We are now required to consider, under s 120(1) of the Act, whether or not, for the hypothesis, we are satisfied “beyond reasonable doubt” that the veteran's death was not war-caused. In Forrester v Repatriation Commission[23] Mortimer J, in discussing the fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at that stage”.
[23] [2013] FCA 898 at [80].
The respondent has properly conceded that it cannot satisfy this Tribunal beyond a reasonable doubt that the death of the veteran was not war-caused. The respondent quite properly made no challenges to the authenticity of the statements tendered on behalf of the applicant.
DECISION
We set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension with effect from 17 May 2012.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member, and Dr G J Maynard, Brigadier (Rtd) ............................Sgd............................................
Associate
Dated 29 July 2014
Date of hearing 26 June 2014 Counsel for the Applicant Mr Nathan Jarro Solicitors for the Applicant Mr Terence O'Connor Solicitors for the Respondent Mr Adrian Crowe, Department of Veterans' Affairs
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