Blake and Repatriation Commission
[2001] AATA 77
•15 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 77
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/268
VETERANS' APPEALS DIVISION )
Re: naida agnes blake
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date15 January 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/268
)
VETERANS' APPEALS DIVISION )
Re: NAIDA AGNES BLAKE
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 15 January 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Claim by widow of deceased Veteran. Did deceased have an habituation to alcohol caused by or contributed to by service? Hypothesis not raised on evidence before Tribunal.
Veterans' Entitlements Act 1986 - s6A, subss120(1), (3), and (6); s120A
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Bey 79 FCR 364
Connors v Repatriation Commission [2000] FCA 783
Caswell v Powell Duffryn Associated Collieries, Limited [1940] Appeal Cases 152
Treloar v Australian Telecommunications Commission 26 FCR 316
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant through his Solicitors and pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 15 January 2001
Date of Decision 15 January 2001Solicitor for Applicant Mr R Sherlock, Legal Aid Commission
Advocate for Respondent Mr P Godwin, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/268
By Mr M.D. ALLEN, Senior Member
BLAKE and REPATRIATION COMMISSION
SYDNEY, 15 JANUARY 2001MR ALLEN: In this matter, pursuant to an application for review which was made pursuant to an extension of time on 21 February 2000, the applicant seeks review of a decision by a delegate of the respondent made 22 May 1999 and affirmed by the Veterans' Review Board that the death of her late husband, Walter Blake was not attributable to his service.
The deceased veteran served in the Australian Army during WWII and served outside Australia in the South-West Pacific area, consequently he has operational service, as that term is defined in section 6A of the Veterans' Entitlements Act 1986 (the VEA) as amended and a further result is that the standard of proof applicable in this matter is that provided by subsections 120(1) and (3) of the VEA. Those particular subsections state inter alia that where a claim respecting the death of a veteran relates to operational service, the death is war-caused unless this Tribunal can be satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
Subsection (3) in turn provides that the Tribunal will be so satisfied beyond reasonable doubt if the material before the Tribunal does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof. Subsection 120(3) is in turn affected by section 120A which provides that an hypothesis is reasonable only in circumstances where there exists a Statement of Principles. The hypothesis contended for conforms with the Statement of Principles.
In this matter there is a relevant Statement of Principles which is Instrument No 23 of 1998. That was the Statement of Principles in force at the time the respondent made its initial decision in this matter and has been pointed to by the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532; that is the instrument which must apply in this matter. In that instrument the hypothesis relied upon by the applicant is that the death of the deceased which was on 8 March 1976 and due to an inter-cerebral haemorrhage and hypertension.
Factor 5(e) states that a factor is regularly consuming an average of 250 grams per week of alcohol for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident. It is common ground between the parties that that standard has been met here and, in particular, I would refer to paragraph 11.7.1 in the report of Associate Professor Mattick which is exhibit R2 in these proceedings.
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©Auscript Pty Ltd 2000As to the relationship between the Statement of Principles regime and the onus of proof provisions, I refer to the now well known principles annunciated by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82. There the court said at p97, as to the task of the Tribunal:
"1. 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.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …
3. 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.
4. 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."
It is difficult in some senses to rationalise stage one of that procedure and what fell from another Full Court in Repatriation Commission v Bey 79 FCR 364 as that particular Full Court, which was a bench of five, pointed out in the reasons of the majority, Northrop, Sundberg, Marshall and Merkel JJ stated at pages 372, 373 as follows:
"Any doubt that attends the status of East v Repatriation Commission 16 FCR 517 as a correct exposition of the law relating to s 120(3) should be dispelled. This Court re-states the position established by East, Bushell and Byrnes. A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority.
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©Auscript Pty Ltd 2000If the two passages in Cooke do depart from East, as read in isolation they appear to do, they are incorrect. Certainly in the present case the primary judge's understanding and application of the passages was inconsistent with East.
Whether material raises a 'reasonable hypothesis' for the purposes of s 120(3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904."
I would only add that the principles of Bey have been followed by the majority in another decision of the Full Court, namely Wheeldon v Repatriation Commission [1999] FCA 1397 - see the decision of Branson and Nicholson JJ. I would also refer to the decision of Kenny J in Connors v Repatriation Commission [2000] FCA 783, particularly at paragraph 19 where her Honour says quoting from Bey that:
"There is nothing in this passage, however, that would support the view that there need not be material pointing to each element of a hypothesis."
In this matter, as I understand it from Exhibit A1, the hypothesis contended for by the applicant is that his fatal intracerebral haemorrhage was caused by, or contributed to by, a drinking pattern which in turn was contributed by war service. There is a further subset, if I can put it of this hypothesis, in that the deceased had skin cancers and melanomas as a result of his service in Port Moresby; they required treatment every six months and the applicant was apprehensive prior to that treatment and for a short period thereafter until he got the results, biopsies which would state that none of the growths removed were malignant.
The applicant, in her evidence today and also what she said to Associate Professor Mattick, stated that the deceased would become agitated before he had treatment and, as she put it in evidence today, they would have an extra drink and she said to him, "Well, you know, have a drink, sit down and let's talk about it". She noticed at the times before he went to see Dr Mattick, the treating dermatologist, that he would be quiet and withdrawn.
As to his war service, the Applicant said in Exhibit A2 that she met her late husband in 1950 and he told her that he did not drink before service and he became a regular drinker on and after service, to relieve the stress occasioned by his service in New Guinea. In evidence before the Tribunal today, however, she said that the applicant had told her he did not drink before service. She said that was understandable, his mother was a Christian Scientist and they, and I took that to refer to the deceased's family, did not believe in alcohol.
The report of Associate Professor Mattick refers to matters. In para 2.2, Professor Mattick took a history that the deceased had many skin cancers and these were burnt off quite frequently. She said he was often told the cancers were melanomas and he would suffer tremendous depression until the
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melanoma was removed or cleared. It was the applicant's claim to Professor
Mattick that the deceased developed blood pressure problems which were associated with the stress of skin cancers.That belief of the applicant was confirmed by Exhibit R7 which is a transcript of her evidence before the Veterans' Review Board. In that she told the Veterans' Review Board (pp2-3):
"Living with the man I know just the tension he went through was tremendous. I mean, when he went down to get these skin – they were related to melanoma on a few occasions and his blood pressure would be sky high, and I'm quite sure that he wouldn't have died at the age he died if he hadn't had that (sic) skin cancers. I've been a widow now for 23 years and I'm sure I wouldn't have been a widow all this time if he didn't have those skin cancers because in every other way he was able to cope with things, but the tension he had to get those skins was just, it was unbelievable."
Then she told the Board of the deceased's drinking patterns which was reiterated here, namely that the deceased would have one or two scotches before dinner but not every night and then the applicant and the deceased would quite often share a bottle of wine with dinner but, as she said, not every night. Professor Mattick again took a history from the applicant in paragraph 11.5 of Exhibit R2. Professor Mattick said, in terms of his drinking history, the deceased had never met criteria for alcohol abuse or alcohol dependence. He drank lightly and socially, consuming at most approximately 30 standard drinks per week.
Professor Mattick then goes on, in a paragraph I have referred to earlier, to point out that the deceased was consuming 250 to 300 grams of alcohol per week before the clinical onset of his cerebrovascular accident and therefore met the Statement of Principles. Speaking of the tension related to the skin cancers, Professor Mattick said in paragraph 5.6
"She told me that from the early 1960s her husband visited twice a year in June and December to have lesions or moles detected and removed and he would be cleared within a week when he might be told 'we've got the lot'. She said that her husband would be very happy at that time and say 'ah, we'll go out to dinner tonight' and she added 'he was so relieved and he didn't dwell on it, he's let it go until he'd go again six months later'. She added that she and her husband learned to live with this sequence of events …"
What I deduce from this particular evidence is that the deceased certainly became apprehensive at the times he was due to go and see a skin specialist regarding these cancers and at that time he would have an increase in his alcohol consumption but, as the applicant pointed out, she had never seen the deceased drunk and, from the history given to Professor Mattick, it would
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©Auscript Pty Ltd 2000appear that he never had any habituation to alcohol nor was he an abuser of alcohol.
Where I find considerable difficulty in this matter is in attributing any of the deceased's alcohol consumption to the incidences of his service. I have evidence that the applicant stated her husband told her he did not drink before service. He did tell her they were given a ration of alcohol whilst on service, but she added to questions asked:
"He didn't really drink before he joined up. He said he didn't drink until he came out of the Army."
Later she added:
"He didn't start to drink until he was discharged from the Army."
In the history taken by Professor Mattick, the applicant told him that the deceased enjoyed mixing and was mainly happy except for the skin cancers. The applicant and the deceased married in 1953 and the marriage was stable. There were no personal, family or social problems or traumatic life effects. The only other matter I would comment on is that the deceased did work in the liquor trade. Apparently he and the applicant ran hotels at one stage and, at the time of his death, the deceased was the proprietor of a liquor store.
From his service records there is nothing to indicate that the deceased had an unusual stress on service and his record of service does not contain any disciplinary offences, so certainly there is no indication that during his service alcohol caused any problem for him. There is nothing in any of the other material before me which indicates that the deceased had any negative reaction to his time in the services, such as one might find with other veterans with post traumatic stress disorders, or anxiety states or other matters which would cause them to drink. As I said, the evidence really is quite equivocal as to when the applicant started to drink and why.
I am aware that, as was pointed out by Heerey J, in Smith v Repatriation Commission [1999] FCA 1484, that an element of a hypothesis can be raised by assumption and it does not have to be proved. As he said at paragraph 18 of his unreported reasons for decision:
"the Tribunal erred in holding in effect that the causative element of the hypothesis was not raised because there was no direct evidence establishing it."
However, I refer back to the decision of the Full Court in Repatriation Commission v Bey supra, which states unequivocally that (pp372-373):
"A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
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©Auscript Pty Ltd 2000Now, in this matter if one has regard to decisions such as Repatriation Commission v Tuit 29 ALD 609, comments there, albeit regarding smoking, there perhaps an assumption might be raised that because of the incidents of his service, the deceased started to drink. However, to make that assumption, one really is putting oneself in the position referred to by Lord Wright in Caswell v Powell Duffryn Associated Collieries, Limited [1940] Appeal Cases 152 at 169. His Lordship there said:
"My Lords, the precise manner in which the accident occurred cannot be ascertained, as the unfortunate young man was alone when he was killed. The court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.
In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture."
I would simply say as an aside, when one comes to regard reasonable hypotheses, etcetera, the case from which the citation has been taken, namely Re Newman's Appeal 13 FLR 268, repays study, particularly when one has regard to leading counsel for the appellant.
Now, in this matter, as I see it, there is simply no material to point to a hypothesis that the deceased had a drinking habit which was attributable to his war service. He may have started whilst he was a serviceman, but there is not a scintilla of evidence to state that his drinking habit was in any way caused or contributed to by any incidents of his service. As opposed to that, and which can certainly be applied in the final Deledio test, the applicant gave evidence that the veteran did not drink until he came out of the Army or until he was discharged.
If it is argued that stress because of his war-caused skin cancers contributed to his cerebrovascular accident the evidence before me, and I so find, is that he would mildly increase his drinking as it grew close to the time to visit his specialist. In Treloar v Australian Telecommunications Commission 26 FCR 316 at 323, the Full Court of the Federal Court discussed contribution. They said, referring to the decision of His Honour Windeyer J in Federal Broom Company Pty Limited and Semlitch 110 CLR 626:
"… 'contribution' does not require that the contributing factor be a causa sine qua non; the 'but for' test is not appropriate nor is the causa causans or 'real effective cause' or 'proximate cause' formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its
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aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not 'contribute'."
The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small. In this matter, given the very small increase in the deceased's intake of alcohol at the time when he was seeing his specialist, this is one of these rare cases where, if there was a contribution of increased alcohol, it was truly de minimus compared with the regular amounts which were partaken of by the deceased as part of his normal everyday life. In saying that, I again stress what Professor Mattick said, that the deceased was a man who was by no means at risk in his drinking. As Professor Mattick said:
"He drank …, consuming at most approximately 30 standard drinks per week consistent with the current NH&MRC recommendations for safe and responsible drinking."
In this matter, therefore, I am satisfied that the material before me does not raise or point to any hypothesis connecting the death of the deceased with his service. If an aggravation by way of contribution is relied upon then I am satisfied beyond reasonable doubt that the extra alcohol partaken of by the deceased prior to visiting his skin specialist is such that it was truly de minimus and played no part whatsoever in the cerebrovascular accident or in contributing to it. For those reasons, therefore, the decision under review will be affirmed.
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