Borrett and Repatriation Commission
[2000] AATA 481
•16 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 481
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/747
VETERANS' APPEALS DIVISION )
Re MARGUERITE BORRETT
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr P D Lynch, Member
Date16 June 2000
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D ALLEN
..............................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Widow's claim. Hypothesis that war-caused drinking habit led to cancer of the rectum. Statement of Principles re cancer of the rectum met but no facts to support sub-hypothesis that drinking habit war-caused.
Veterans' Entitlements Act - s6A, subss120(1), (3) and (6), s120A
Repatriation Commission v Bey 79 FCR 364
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
REASONS FOR DECISION
16 June 2000 Senior Member M D Allen Dr P D Lynch, Member
By application made 20 May 1999 the Applicant sought review of a determination made by a delegate of the Respondent on 24 February 1998 and affirmed by a Veterans' Review Board on 21 April 1999 that the death of her late husband, John Borrett, was not war-caused.
The late Veteran died on 6 February 1972 and a Post Mortem Report gave as the cause of death, carcinoma of the rectum with metastasis.
At the hearing of this matter on 30 May 2000 the following documents were taken in as exhibits and marked as follows, namely:
T1 – T24: The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1986
Exhibit A1: Applicant's Statement of Facts and Contentions dated 8 November 1999
Exhibit A2: Statement by the Applicant dated 26 August 1999
Exhibit A3: Statement by Thomas Graham dated 16 May 2000
Exhibit A4: Report of Dr Robert Gertler dated 19 October 1999
Exhibit R1: Respondent's Amended Statement of Facts and Contentions dated 29 May 2000
Exhibit R2: Report of Brendan O'Keefe, Historian, dated 12 April 2000
Exhibit R3: Report of Associate Professor Richard Mattick dated 10 May 2000
As deceased Veteran had operational service as that term is defined in section 6A of the Veterans' Entitlements Act 1986 (the VEA), the standard of proof applicable in this matter is as set out in subss120(1) and (3) of the VEA, namely:
"120(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 of 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.
Note: This subsection is affected by section 120A.
(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:
…
…
(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.
Note: This subsection is affected by section 120A."
Subsection 120(6) of the VEA provides that neither party to this application for review bears any onus of proof.
As the Applicant's current claim was lodged post 1 June 1994, s120A of the VEA provides inter alia that a reasonable hypothesis connecting the death of the Deceased with his war service can only exist in circumstances where the Repatriation Medical Authority has issued a so-called Statement of Principles (SOP) if the said SOP upholds the hypothesis. Where the Repatriation Medical Authority has issued amended SOPs, the SOP applicable to the Applicant's claim is the SOP in force at the time of the original decision upon the application, in this case 24 February 1998. (See Repatriation Commission v Keeley [2000] FCA 532).
The relationship between the SOP and the standard of proof was discussed by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97:
"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."
The hypothesis contended for by the Applicant is that stress suffered by her late husband during his war service engendered a habit of drinking alcohol and that his alcohol intake was sufficient to cause or contribute to his rectal cancer.
Document T23 is a copy of the relevant SOP in force at the time of the primary decision in this matter relating to cancer of the rectum. Factor 5(c) reads:
"drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the rectum;"
It will be seen therefore that the Applicant's case depends upon two hypotheses. The first, to conform with the SOP, is that the Deceased's alcohol intake equated to 250 kilograms of alcohol within any 25 year period before the clinical onset of cancer of the rectum. The second hypothesis is that the Deceased's habit of drinking alcohol was caused by or contributed to by the incidence of his war service.
The definition section of the SOP defines alcohol in the following terms, namely:
" 'alcohol (contained within alcoholic drinks)' is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;"
250,000 grams of alcohol therefore equates to 1,000 standard drinks in a year.
There is no direct evidence of how much alcohol the Deceased drank. In evidence to the Tribunal, the Applicant stated that her late husband had drunk three to six schooners of beer every day after work. He also drank beer after golf on Sundays. Surprisingly, however, he did not drink at home and the Applicant clearly stated in her evidence "we did not have anything in the house".
In a document dated 21 August 1992, the Applicant stated that the Deceased drank three to four beers per day, with the odd glass of wine. On 17 February 1998 she stated that the Deceased "Drank with a group after work every day. 3 to 6 drinks per day usually schooners." (T15)
Upon admission to hospital on 15 January 1972, that is some three weeks before his death, the deceased Veteran is recorded as drinking alcohol every second day "Claret, Whisky, etc". What is to be noted, however, is that the Applicant never observed the Deceased drinking after work or with clients and stated that he was not affected by alcohol.
Either way, it seems unimportant to be more precise as to the Deceased's drinking patterns. A standard drink, namely 7oz of beer contains 10 grams of alcohol whereas a schooner (15oz) contains 20 grams of alcohol, so even if the Deceased drank on average three schooners after work, he would achieve a level of 10,000 grams of alcohol in just over 166 days. Compare this to the SOP which requires 250,000 grams over 25 years.
There does not appear to have been any pressure upon the Deceased to drink apart from his work. His drinking took place in the context of his work as a salesman and later as a small business proprietor entertaining or maintaining good will with customers. The evidence is that the Deceased never drank to excess and that he did not drink at home. We find that the opinion of Associate Professor Mattick is most relevant in this regard, namely (Exhibit R3):
"I do not believe that the term alcohol 'habit' is appropriate in this case. The term 'habit' does not feature in any classification system. He may have drunk regularly, but there is no evidence that his drinking behaviour was habitually driven by any service-related events."
And we accept Associate Professor Mattick's opinion as to the lack of any habit of drinking. We do note, however, that Associate Professor Mattick opines that the Deceased did drink sufficient alcohol between the commencement of his operational service and his death to satisfy the relevant SOP.
As Associate Professor Mattick points out, the Deceased did drink alcohol prior to service. Document T3 at page 13 is the Deceased's Entry Medical Examination into the Royal Australian Air Force (RAAF). He is recorded as then smoking 2oz of tobacco weekly and alcohol is noted as "little".
The Applicant gave evidence that, to her knowledge, the Deceased did not drink prior to his enlistment in the RAAF. The document at T3 is not inconsistent with the Applicant's evidence as the Deceased may well have drunk alcohol at different times and places than when he was in the Applicant's company.
There is no doubt that during his service the Deceased was under pressure. He was selected for pilot training and, after completing a flying course in Australia, was sent to Canada for further training. We accept the Applicant's evidence that the Deceased had always hoped to become a pilot and was bitterly disappointed when he was rejected for air crew after suffering mumps while in Canada at his training squadron.
Mr Thomas Graham was a contemporary of the Deceased during initial training in Australia and in Canada. For a time he even shared a hut with the Deceased in Canada. Of the stress involved in pilot training he stated in Exhibit A3:
"5.…
a.It was stressful having to pass all of the ground and flying subjects. If you failed two ground subjects you were out.
b.Most people were not used to being away from home for so long, and were not used to living in a hut with 40 other people.
c.Some of the instructors were difficult to get along with.
d.One of my instructors, Mr Kennedy, was killed in an air crash with two New Zealand trainees. This accident occurred during night flying in approximately March 1943. The crash occurred not far from the runway. Because we were living on the aerodrome, everyone, including Mr Borrett, was aware of this accident. Mr Kennedy was also known to Mr Borrett personally. I was one of the pallbearers at the funeral.
e.Everyone had a few close accidents or forced landings, and just about everyone missed a landing.
6.From my own experience I state that training in Canada was very stressful. I was in fact diagnosed with a duodenal ulcer whilst in Canada.
7.In our course of approximately 40 men, only 26 passed. Mr Borrett was one of those who did not pass.
8.Everyone was terribly disappointed when they missed out on becoming a pilot, and I think that some even thought about suicide after failing. A lot of people were worried about the disgrace of returning home and having to tell everyone that they had failed. It was earth shattering to be 'scrubbed', and I know that this was the case for Mr Borrett."
In evidence Mr Graham added
"Everyone wanted to be a pilot. One of the worst things in life at that time was to be scrubbed. They were devastated".
He also remarked that he met the Deceased after the war and found him not to be the same person he had known whilst in training. He was no longer the exuberant person he had been but was quieter, a bit nervous and, in Mr Graham's opinion, he was a bit unsure of himself.
The historical material provided in the report by Mr O'Keefe also stresses the pressure flying trainees were under to succeed and of the sense of humiliation and failure if they were "scrubbed" off the course. For example, the extract from "A last call of empire" by McCarthy at page 60 states (Exhibit R2):
"Trainees were on duty for at least 6 days a week, and off-duty hours were simply used for study."
Mr Graham gave evidence that his recollection is that the Deceased did have a few drinks while they were training in Canada. Most drinking was done on weekends and although the Base had a Wet Bar, most drinking was done off Base. Alcohol consumption was limited as trainees had to be fit for flying on the Monday morning and they were also studying quite hard. If they had arrived back at the Base under the influence of alcohol, they would be charged with an Air Force offence and placed in the Guard House.
On the evidence before us we can conclude that the Deceased would have been very disappointed to have failed his flying course and it would have remained a matter of life long regret. No doubt, amongst other feelings, he would have felt that he had been put to the test and failed.
The Applicant's evidence is, however, quite unequivocal and it is that the Deceased did not drink when he was discharged from the RAAF but six months later, when he began employment for what became Remington Rand typewriters as a salesman, he began to drink with his workmates after work.
Although the Applicant stated that she felt the Deceased had had a rough time in the RAAF and that drinking relaxed him, she also stated that "He did not drink before – he started when he got into the job".
There is no record of any alcohol related offences in the Deceased's service documents, nor is there any evidence of any form of psychiatric illness whilst on service. Post service, there is no record of the Applicant having consulted any medical practitioner for any illness which might be related to stress whilst on service, nor is there any material, for example drink driving offences, to show that the Applicant drank to excess. Likewise, there is no evidence that the Applicant's marriage was in any way affected by the Deceased's drinking habits, indeed she seems to have been most understanding of the Deceased's need to entertain clients and relax after work with a drink.
Dr Gertler, Psychiatrist, in his report of 19 October 1999 (Exhibit A4) does opine, referring to the Deceased's war service:
"It does appear that he became anxious as a result of those experiences and that anxiety may well have become chronic; alcohol became a form of self-medication."
However, that opinion depends upon what he was told by the Applicant, for example there was simply no evidence for Dr Gertler's statement that the Deceased drank daily whilst in Canada, indeed such evidence as exists mitigates against this due to the imperative to pass the course. Also the statement regarding the Deceased being subjected to bombing raids, while in the South West Pacific area, is not in accord with history (see Exhibit R2). We find that we derive no assistance from Dr Gertler's report.
In Repatriation Commission v Bey 79 FCR 364 the majority (Northrop, Sundberg, Marshall and Merkel JJ) said at p372/373:
"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.
…
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. …"
Cf R D Nicholson J at p376:
"(3)An hypothesis can be reasonable without being proved and in that sense may be theoretical: …
(4)Nevertheless there must be some material which points to some fact or facts (the raised facts) which support the hypothesis and from which the hypothesis can be regarded as reasonable if the raised facts are true: Bushell at 414. It is from the evidence that the raising of a reasonable hypothesis comes: Bushell at 427. This means the material before the Commission must raise some fact or facts which give rise to the hypothesis: Byrnes at 569-570. It will be this which gives a degree of acceptability or credibility to the hypothesis: East at 531."
Although later cases were cited to us by Mr M Smith of counsel who appeared for the Applicant, we do not regard them as of assistance and they can be distinguished in this case. In this matter there is no evidence as to the Deceased's drinking patterns whilst on service and there was clear and unequivocal evidence from his wife that he only began to drink alcohol six months after discharge from the RAAF when he found employment as a salesman.
It has been suggested that the disappointment in failing his flying course so affected the Deceased that he suffered a personality change and became anxious and lost self confidence and so self medicated with alcohol. To us this hypothesis is based upon no more than suspicion and conjecture and has no basis in fact. The hypothesis that the Applicant's post service drinking was causally related to his service is unsupported by any facts and hence cannot be classified as reasonable.
Even if the hypothesis referred to above was raised, we are satisfied beyond reasonable doubt, based on the Applicant's own evidence, that the Deceased only began to drink to any extent after he found employment as a salesman and that he continued to drink both as a means of relaxation and as an aid to maintaining goodwill with customers. This continued when he had his own business. At no time was his partaking of alcohol a habit, for example he did not drink at home, but his drinking was a social lubricant and not in any way connected with his service. Thus we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the Deceased was attributable to his war service.
For the reasons above therefore we affirm the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr P D Lynch, MemberSigned: Ivanka Mamic .....................................................................................
AssociateDate of Hearing 30 May 2000
Date of Decision
Counsel for the Applicant Mr M Smith
Solicitor for the Applicant Mr S Lurie
Dibbs, Crowther & Osborne
Advocate for the Respondent Mr S Modder,
Department of Veterans' Affairs
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