Bruhm and Repatriaiton Commission

[2008] AATA 774

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 774

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1380

VETERANS' APPEALS DIVISION		)
Re		NORMA BRUHM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Ion Alexander, Member

Date29 August 2008

PlaceSydney

Decision The tribunal affirms the decision under review.

...................[Sgd]...................

Ms Robin Hunt
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS –  pensions and entitlements – widow’s pension claim – death of veteran from fall and head injury – hypothesis linking death to war service – finding not reasonable hypothesis – decision affirmed.

Veterans’ Entitlements Act 1986 (Cth) ss 119, 120(1), 120(3)

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

East v Repatriation Commission (1987) 16 FCR 517

Repatriation Commission v Tuite (1993) 39 FCR 540

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

29 August 2008 Ms Robin Hunt, Senior Member
Dr Ion Alexander, Member            

introduction

1.      The applicant, Norma Bruhm, is the widow of a veteran who served in the Royal Australian Air Force from 14 July 1942 to 13 December 1945. The veteran, Stephen Bruhm, did not have any conditions accepted by the Department of Veterans’ Affairs as war-caused.

2.      Mr Bruhm died on 18 September 1989 as the result of a fall which caused a head injury. The applicant linked his death to his war service. Initially, Mrs Bruhm claimed that the veteran’s death was caused by his ischaemic heart disease resulting from war-caused smoking. For the review, Counsel for Mrs Bruhm informed the tribunal that he was no longer pursuing the claim on this basis but put the claim on the basis that the veteran’s death was caused by his war-caused alcohol habit.

3.      The decision we are reviewing is the reviewable decision of the Veterans’ Review Board made on 6 September 2006 which affirmed the original delegate’s decision refusing a war widow’s pension to the applicant because of the finding that the death of Mr Bruhm was not related to his war service.

issue

4.      The issue is whether Mr Bruhm’s death was related to his war service. If his death was related to his operational service, the applicant may be entitled to a widow’s pension.

decision

5. We have decided that the hypothesis connecting the veteran’s death with operational service is not a reasonable hypothesis in accordance with subsection 120(1) of the Veterans’ Entitlements Act 1986 (‘the VE Act’) and that we are satisfied beyond reasonable doubt that there is no sufficient ground for finding that the death was war-caused for the purposes of subsection 120(3) of the VE Act. This means that Mrs Bruhm’s claim is unsuccessful.

consideration and findings

6.      Mr Bruhm died on 18 September 1989 aged 64 years.  The cause of death identified at the conclusion of an inquest on 28 February 1990 was:

1.  Direct cause: Head injury following a fall
2.  Other significant conditions contributing to the death but not relating to the disease or condition causing it: Ischaemic heart disease

7.      The parties agree that the “kind of death” for the purposes of the applicant’s claim was the head injury following the fall. They also agreed, in light of the evidence presented to the coroner, that Mr Bruhm was intoxicated at the time of the fall and that this is the reason he fell.

8.      The police brief presented for the coroner referred to a history of alcohol abuse. Written statements made for the police brief by friends and relatives said that Mr Bruhm was in a drunk state when he left a hotel to go home on the evening of his fall. A statement by the woman with whom he was living at the time said that he was drunk and rowdy when he arrived home and that she heard a loud bang during the night but did not investigate as she was scared of Mr Bruhm when he was drunk. She discovered the next morning that he was lying on the floor unconscious and covered in blood. Microscopic examination of the body later revealed that Mr Bruhm’s body displayed heart effects consistent with alcoholic heart disease.    Examination of the brain and diagnosis resulted in identification of cerebral infarction and haemorrhaging secondary to brain swelling. We see no reason to disagree with the coroner’s findings as to the cause of death and accept them as correct.

9.      The applicant contends that the veteran developed a heavy alcohol habit as a result of his operational war service. As a result of his alcohol habit, he became intoxicated on the night of 14 September 1989 and suffered a fall. In consequence of the fall, the veteran suffered a head injury. The head injury led to subdural haematoma. The haematoma caused or materially contributed to Mr Bruhm’s death. This is the hypothesis which we are required to consider in making our decision.

10.     We have already accepted that the sequence of events set out above is correct. There also is no doubt that Mr Bruhm served between 14 July 1942 and 13 December 1945. His service movement record shows that he was posted to various locations within Australia, including the island of Millingimbi. He served in Morotai from 25 June 1945 onwards until he was relocated to Bradfield Park on 28 November 1945. Morotai is located in what was then the Dutch East Indies. Mr Bruhm was demobilised and discharged on 13 December 1945.

11.     Service records show Mr Bruhm re-enlisted on 11 May 1949 and was discharged again on 13 July 1949. At that time, the Department of Defence noted “services no longer required (without disciplinary effect)”. Mrs Bruhm told us that Mr Bruhm was an air traffic controller and was discharged because he was drunk on duty but there is no mention of this on his service record.

12.     Mrs Bruhm first met the deceased Mr Bruhm in or around 1945. She gave oral evidence to us that she met Mr Bruhm after the war because he had been “in the islands”. Professor Richard P Mattick saw Mrs Bruhm for an assessment of her husband’s alcohol consumption and smoking history and the relationship of these to his service. The Professor recorded that Mrs Bruhm told him that she met her husband through friends in Darwin when he was in the RAAF and they were in their early twenties. The service records show Mr Bruhm was posted to Darwin on 6 February 1945 before Bradfield Park on 9 April 1945 and then Morotai on 25 June 1945 and two later dates in 1945.

13.     Professor Mattick went on to record that the applicant said she and her husband started going out a couple of years after he returned to Australia but she was unsure of precise times. Under a heading, “lifetime drinking history”, the Professor noted that the applicant said she was unsure when the veteran first consumed alcohol but thought it must have been in the services. The Professor noted Mrs Bruhm reported that she was living in Paddington at this time. When he asked her when she was first aware of his drinking, the Professor noted that Mrs Bruhm thought this was when he was still working in the RAAF but then said “the night in the park at North Sydney … after the war … he was drinking at some stage or other”. She further explained that after the war they were living in a flat at North Sydney owned by the veteran’s mother. At this time, the Professor noted that Mrs Bruhm thought her husband drank more than once a week but she could not tell how much.

14.     After a period in North Sydney, the Professor recorded that Mrs Bruhm said she and her former husband went back to the Northern Territory and she believed he drank heavily there a number of times. She believed that, after the marriage, he drank a few times a week in the Territory and in Sydney but could not say how often or how much.

15.     Mrs Bruhm gave further evidence to the tribunal that she had located the marriage certificate which showed she married Mr Bruhm in February 1948. They had one child, a son. The applicant and Professor Mattick calculated that they separated in or around 1961 and did not co-habitate or otherwise have any significant contact thereafter.

16.     Mrs Bruhm gave us a similar account to that recorded by the Professor in that she was left to raise their son when the veteran walked out. She told us that she lived with his mother as she had no other home or income. Professor Mattick recorded that Mrs Bruhm was unsure what her late husband first did in the RAAF although she later said that he was a leading aircraftsman and gave a serial number. She said he worked as a wireless air gunner but she did not know a lot about it. She told the Professor he worked in Morotai, Balapakan, Port Moresby and Borneo. Mrs Bruhm also told us that her husband’s age upon enlistment shown in the service record was wrong. She believed that he overstated his age in order to be accepted into the RAAF and was actually aged 16 or 17 rather than 18 when he enlisted in 1942. His actual date of birth was 26 October 1924 and not the earlier date he provided to the RAAF.

17.     The applicant was able to recall for the tribunal that Mr Bruhm worked in the post office in Lane Cove before he enlisted. She said that she knew this because she and his mother discussed the past when they were living together. Mrs Bruhm also said that she thought her late husband learned to drink during war service because his parents were strict Methodists and would not allow drink in the house. She told the tribunal that Mr Bruhm worked in Darwin for a time after he left the RAAF. Professor Mattick recorded that he worked for the Department of Civil Aviation for a period before rejoining the RAAF. Mrs Bruhm gave evidence that Mr Bruhm’s drinking was dreadful after they married. She gave an account to Professor Mattick of his poor work performance because of his drinking.

18.     We have several other medical reports prepared for the review but these all depend on the account of events given by the applicant and none is contemporaneous. Dr Russell J Butler in his report of 11 June 2007 noted that he was provided with no alcohol statement but that Mr Bruhm reported an intake of one bottle of beer daily in 1983 at a cardiac clinic. Dr Butler wondered if Mr Bruhm’s early discharge in 1949 may have been alcohol related. He also noted the contents of the inquest papers. He speculated that should his alcohol intake be related to his service it might be that his service contributed to his death.

19.     Professor James W Lance in his report of 29 May 2008 noted the historical report by Brendan G. O’Keefe dated 14 March 2008, which advised that the alcohol ration available to RAAF members at the time of Mr Bruhm’s service was 2 bottles of beer weekly. The Professor concluded this amount would be most unlikely to induce a lifelong excessive consumption of alcohol. In his supplementary report of 24 June 2008, Professor Lance reviewed his opinion in light of Dr Butler’s conclusion. He agreed with Dr Butler’s conclusion about the cause of death which was intracranial haemorrhage secondary to a closed head injury caused by alcohol intoxication and in the presence of warfarin anticoagulation. He again concluded that there was an insufficient link established between wartime initiation of heavy alcohol intake and the event that led to Mr Bruhm’s death.

20.     The respondent conceded in its facts and contentions that the histories given to assessing medical practitioners by the applicant concerning the deceased veteran and, while he was alive, given by the deceased veteran to his treating practitioners or recorded by them, are consistent with having a long term pattern of heavy alcohol consumption.

21.     We have no contemporaneous medical records or accounts of any kind about Mr Bruhm drinking or not drinking before or during service. Mr O’Keefe provided a historical report dated 14 March 2008 in which he advised that the ration to RAAF members at the time of Mr Bruhm’s service was 2 bottles of beer weekly. Mr O’Keefe also interviewed Mrs Bruhm in connection with providing the report and recorded that she was unsure of her deceased husband’s first work in the RAAF. He noted she thought he must have worked in radio or telegraph and may have trained for this work in the post office or the RAAF. She did not know what kind of planes he worked on.

22.     Mr O’Keefe wrote in his report that, as an airman, Mr Bruhm would have been unable to obtain alcohol before he was posted to the Northern Territory in August 1943. Before this, he would have been able to purchase alcohol in hotels when on leave or off-duty and off-base. In those parts of the Northern Territory where Mr Bruhm served, Mr O’Keefe said the alcohol ration available to airmen was two 26-ounce bottles of beer per man per week. This amounted to 52 fluid ounces or 1,539.2 ml.  He also noted that in December 1942, a report estimated 25% of RAAF airmen did not drink alcohol. 32% of World War II veterans said they did not drink when enlisting. By the end of the war, only 13% said they were still teetotalers. He provided statistics for light, moderate and heavy drinkers before and after service and these showed each category increased intake by the end of the period. However, the quantity of alcohol available to Mr Bruhm was relatively small.

is the hypothesis reasonable?

23. The standard of proof where a claim for a pension is made is set out in section 120 of the VE Act. We are required under subsection 120(1) to determine that the death of a veteran was war caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. In applying subsection 120(1) we must be satisfied pursuant to subsection 120(3), beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if, after consideration of the whole of the material before us, it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. Where a Statement of Principles (‘SoP’) applies, there are further steps. In the present case, the parties agree and we so find that no SoP applies. Mr Bruhm’s kind of death is not covered by any such statement.

24.     We note that the historical report and also certain medical reports tendered for the review suggest that Mr Bruhm may have developed a service related smoking habit. However, the initial hypothesis contending a service link to death through this cause was not pursued at the tribunal hearing. Broadly speaking, the hypothesis put to us is that Mr Bruhm’s death was related to a war-caused drinking habit.

25.     Material before us that we have taken into account in forming a view about the hypothesis includes Mrs Bruhm’s oral evidence, RAAF records about Mr Bruhm’s service, the historian’s report furnished by Mr O’Keefe and medical reports made in 2007 and 2008. The service record shows when and where Mr Bruhm served and the date of his discharge in 1945. A further brief record shows Mr Bruhm enlisted again for a few months after the war but does not touch on any drinking or give any information about alcohol.

26.     None of the material above points to a hypothesis that Mr Bruhm developed an alcohol habit during his war service apart from Mrs Bruhm’s statements that her late husband must have started drinking during that time. One of the reasons she thought this was because, when she came to know his parents, she learned they were strict Methodists and would not have alcoholic drinks in the house. As Mrs Bruhm did not know Mr Bruhm until after he performed his war service, she could not, however, say if he did or did not drink during this time. Mrs Bruhm’s knowledge of her husband and his habits only came about when she was introduced to him after the war. She told us that he drank occasionally when she first came to know him and, by contrast, was emphatic that he drank heavily after the marriage. Her evidence was that she married Mr Bruhm in 1948 after meeting him when he returned from the islands in 1945. His war service took place between 1942 and 1945 and Mrs Bruhm could tell us nothing about whether Mr Bruhm drank alcohol during that time.

27.     The historical report does not point to a reasonable hypothesis connecting the death with the circumstances of Mr Bruhm’s service. This report was prepared for the applicant but it says Mr Bruhm would not have been able to obtain alcohol either by purchase or free from canteen units or any other outlets on RAAF bases before he was posted to the Northern Territory in the North Western area in August 1943. It adds that when serving in this area, from August 1943 to April 1945, the amount of alcohol available to Mr Bruhm would have been only two 26-ounce bottles a week. When he returned to Sydney from the Northern Territory in April 1945, he again would not have been able to obtain beer or other alcohol from unit canteens. From the time of his arrival on Morotai in June 1945 until his departure from Labuan for Australia on 17 November 1945, he would have been entitled to the two bottles per week ration. Mr O’Keefe says this ration was introduced on 1 August 1944 for RAAF and other servicemen serving outside Australia.

28.     There are a number of leading cases in which the Federal Court has instructed decision-makers how to go about the exercise of examining material for a possible link connecting service to the relevant hypothesis. A hypothesis will not be reasonable if it is not pointed to by any material and is obviously fanciful or too remote or tenuous. This principle was expressed in East v Repatriation Commission (1987) 16 FCR 517 and approved by the majority in Bushell v Repatriation Commission (1992) 175 CLR 408 at p 414:

The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. ... So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.

…

Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous (East v Repatriation Commission).

29.     Expert medical opinion sometimes points to the basis for a reasonable hypothesis. In the present case there is no medical opinion before us which points to the hypothesis. All the medical opinions acknowledge how Mr Bruhm died but indicate no causation going back to war service.

30.     Again, in Byrnes v Repatriation Commission (1993) 177 CLR 564, the court referred to Bushell’s case and noted that a decision-maker must ask, “do all or some of the facts raised by the material … give rise to a reasonable hypothesis connecting the veteran’s injury (here death) with war service? … If the hypothesis is not reasonable, the claim fails.” In our view, this is what has occurred in the present case.

31.     Mrs Bruhm pointed to a temporal connection with Mr Bruhm’s starting to drink. As the respondent says, however, Kirby J was correct in Roncevich v Repatriation Commission (2005) 222 CLR 115 at paras 55-56, when he stressed that there needs to be a causal connection between service and a claimed injury or disease.

32.     Mrs Bruhm’s Counsel also referred us to cases where smoking introduced to a veteran during service suggested that army experience contributed to later smoking habits. However, a mere temporal connection is not sufficient to make a hypothesis reasonable without more material pointing to a connection between service and an injury, disease or death.  This is borne out in Repatriation Commission v Tuite (1993) 39 FCR 540 where the Full Court of the Federal Court upheld the decision of the tribunal. What was required was “something within the applicant's military service which has caused him to start smoking”. Similarly, here we need an indicator in the material before us that there was something in Mr Bruhm’s service which caused him to start drinking before the hypothesis becomes reasonable.

33.     There are some similarities with Tuite in that he, at the age of 24, had not smoked before going into camp in the army. Mr Bruhm probably was not drinking when he entered service. By the end of his period in army camp Mr Tuite was smoking about 20 cigarettes a day. We have no material suggesting Mr Bruhm had a drinking habit when he was discharged. We have only Mrs Bruhm’s recollection that, when she met him, he drank sometimes.  In Tuite, the important extra factor was material suggesting it was “the circumstances whilst he was in camp that caused him to start to smoke”. Some of those circumstances were that “cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military”.

34.     By comparison, we have no material pointing to a similar milieu or conditions possibly experienced by Mr Bruhm in respect to alcohol. We have borne in mind that section 119 allows us to take into account deficiencies in evidence due to lapse of time. However, a deficiency in material cannot equate to material which raises or points to a hypothesis.

35. In our opinion, the material before us raises a possible temporal connection with Mr Bruhm’s starting to drink but no more than that. The hypothesis from that point on is mere speculation. The material does not point to causation of a drinking habit. We consider the hypothesis seeking to connect Mr Bruhm’s death to his war service is too remote to be reasonable as no material and no “raised facts” support the hypothesis. The material does not meet the test set out in subsection 120(3). In consequence, we are not satisfied pursuant to subsection 120(1) beyond reasonable doubt that the veteran’s death was war-caused as there is no sufficient ground for making that determination. This means his widow’s claim must fail.

decision

36.     The tribunal affirms the decision under review.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Ion Alexander, Member

Signed: ........................[Sgd].............................
  Jennifer Wong, Associate

Date/s of Hearing  31 July 2008
Date of Decision  29 August 2008
Counsel for the Applicant         Mr M Vincent
Solicitor for the Applicant          Dibbs Abbott Stillman
Solicitor for the Respondent     Sparke Helmore Lawyers