Byrne and Repatriation Commission
[2006] AATA 416
•12 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 416
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1959
VETERANS' APPEALS DIVISION ) Re MARJORIE BYRNE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell Date12 May 2006
PlaceSydney
Decision The decision under review is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
VETERANS’ APPEALS – war widow’s pension – operational service – “kinds of death” argued were accidental drowning, ischaemic heart disease or coronary artery disease – “kind of death” determined was accidental drowning – hypothesis that accepted war conditions impaired his ability to survive in the water too tenuous – hypothesis that war-caused (not accepted) ischaemic heart disease impaired his ability to survive in the water was reasonable – hypothesis that war-caused (not accepted) coronary artery disease impaired his ability to survive in the water was reasonable – satisfied beyond a reasonable doubt that neither ischaemic heart disease nor coronary artery disease contributed to his death - death not war caused - decision affirmed.
LEGISLATION
Veterans’ Entitlement Act 1986 s 8, 120 and 120ACASELAW
Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003)
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bull v Repatriation Commission (2001) 188 ALR 756
Repatriation Commission v Towns [2003] FCA 1262
Bushell v Repatriation Commission (1993) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Commissioner for Government Transport v Adamcik (1961) 106 CLR 292REASONS FOR DECISION
12 May 2006 Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell Introduction
1. Mr Eric Byrne served in the Australian Army from 1 April 1942 to 26 February 1946. On 4 November 1962 he died while on a fishing trip with two friends on Lake Tantangara Dam in the Snowy Mountains. He was 40 years of age. His widow, Mrs Marjorie Byrne, seeks the review of a decision refusing her application for a war widow’s pension.
The Issue
2. The question we have to decide is whether Mr Byrne’s death was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”) s 8, that is, that his death arose out of or was attributable to his war service.
Background
3. Mr Byrne’s service is operational service within the meaning of the Act. The standard of proof is that set out in s 120(1), (3), and s 120A of the Act because the claim was made after 1 July 1994.
4. Mr Byrne had accepted conditions of malaria (1946) and duodenal ulcer (1954) (Supplementary T documents, p 12). The parties agreed for the purpose of these proceedings that the symptoms of nervous dyspepsia are covered by the diagnosis of duodenal ulcer.
5. Mr and Mrs Byrne were married on 18 March 1944 (T16). They had three children. Mrs Byrne applied for a war widow’s pension shortly after her husband’s death, which was rejected on 14 April 1964 (T1). The claim which is the subject of these proceedings was lodged in 2003.
Date of Effect
6. If Mrs Byrne is successful the date of effect would be 28 December 2002.
What is the Kind or Kinds of death?
7. This is a matter to which the provisions of s 120(1), 120(3) and s 120A of the Act apply, being an application made after 1 June 1994. There being no dispute that Mrs Byrne is a widow of a veteran, the first matter we have to determine on the balance of probabilities, is the “kind” or “kinds” of death suffered by Mr Byrne: Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003). Mr Vincent who appeared for Mrs Byrne argued that the “kind of death”, or as he phrased it the “cause of death” was accidental drowning, ischaemic heart disease (“IHD”) or coronary artery disease (“CAD”).
8. There is relevantly no onus of proving any matter on either party (s 120(6)) of the Act.
The Evidence
9. The following is a summary of the material before the Tribunal. In this case it is appropriate to deal with all the evidence at this point because the evidence relevant to the “kind of death” issue is not readily isolated.
10. There was a coronial inquiry into Mr Byrne’s death. The Coroners Report is found at T7.
11. Dr O’Keefe, a general practitioner in Cooma, performed the post mortem on 6 November 1962. He reported that the direct cause of death was asphyxia and the antecedent cause was drowning. Upon examination he found:
“no internal signs of violence except a small bruise on forehead. Skin consistent with immersion in water. Lungs voluminous with no froth in air passages. Heart small; some atheroma aorta and coronary arteries but no obstruction of latter.”
12. A further handwritten document (Exhibit A9) signed by Dr O’Keefe set out Post Mortem Findings referred to “cyanosed head & neck” and noted “a small abrasion on forehead”.
13. The Coroner found that it was a “tragic accident”, but one that could have been avoided with a little more care. The boat was overloaded and in the new dams in the Snowy Mountains Area great care should be taken by casual visitors. The other two men in the boat did everything they could to avoid the tragedy but they were hampered by heavy clothing and the extremely cold water. The Coroner stated “I can only say that we must be thankful that there were not three tragedies”.
14. Dr O’Keefe wrote to the Department of Veterans’ affairs in August 1963. He stated:
“While the cause of his death was undoubtedly drowning while on a fishing trip, there is some doubt in her (Mrs Byrne’s) mind that because of war disability, he was unable to cope with the situation when the boat overturned and that this could be a contributing factor to his death. This may be so and would require history of his health before the accident”. (Emphasis added)
15. The two friends who went on the fishing trip with Mr Byrne the day he died gave statements to the coroner. Mr Clifford Wortes stated that he left the wall of the Tantagara Dam in a boat with Mr Byrne and Mr Armstrong at about 4.30 am. At about 9 am Mr Armstrong was steering the boat, Mr Wortes was in the middle and Mr Byrne was in the front. Mr Wortes stood up to cast a line and then sat down on the same side of the boat as Mr Armstrong. The boat overbalanced and they all fell into the lake (T7). They all “held on to the boat for some minutes but it did not appear to float properly. The back went down and the nose was out.” They were not wearing life jackets, and were all wearing heavy coats. Mr Byrne’s “coat appeared to be dragging him under and we tried to support him on a number of occasions. On the last occasion having previously endeavoured to get his coat off and failed, I pushed him up on to the boat and in doing so I went to the bottom and when I came up he was gone”. Mr Wortes then swam to the bank. Mr Byrne was a better swimmer than Mr Wortes, and Mr Wortes could not understand why they had to pull him back to the boat all the time. He felt that Mr Byrne looked shocked when he first saw him in the water, which was very cold.
16. Mr Charles Armstrong also stated they left the wall of the dam at 4.30 am, and that they were not wearing life jackets (T7). He gave the same report of how the boat came to overturn and they all fell into the water. “We tried on numerous occasions to support Dick. I saw Cliff push him on to the boat and start off towards the bank and I thought Dick followed him. I was on the opposite side of the boat and I saw Cliff swim about 20 yards and then stand up in the water. I could not see Dick, and I was exhausted and could not help any more.” He stated that Mr Byrne was a strong swimming and held a bronze medallion and was a stronger swimmer than himself or Mr Wortes. When he first saw Mr Byrne in the water, he said “What swrong, (sic) come over to the boat”. “He seemed to be in a coma and I think something happened to him before he was drowned.”… “The water was very cold – about 35 degrees.”
17. There were two summary documents dated 6 December 1962 prepared by two different medical officers apparently for the purpose of the coronial inquiry. One specified five different periods of consultation from 1959 to 8 June 1962 and identified in chronological order the conditions found to be present to be nervous dyspepsia, influenza, nervous dyspepsia, nervous dyspepsia and influenza (T6 p 29). Under the heading “Copy of any clinical notes” was written:
Patient working long hours, irregular meals
Condition of nervous dyspepsia
No tenderness on palpation. No evidence of ulcer, gastric or duodenal.
18. The second document was brief (T6 p 30). In it Dr Harbison stated that he could not provide details of dates of consultations and attendances “without going back over my records for years back. He has however reported for treatment of Peptic Ulcer, at rather infrequent intervals for many years”. Dr Harbison provided a history of constant indigestion relieved by antacid powers, that a duodenal ulcer was found to be present and that he thought all investigations had been carried out “through Repat. in Sydney”.
Mrs Byrne’s evidence
19. Mrs Byrne provided a statement to the Tribunal (Exhibit A1) and gave oral evidence at the hearing. There was also material prepared by her in the T documents. She met Mr Byrne when she was 12 years old when they were both going to school in Bermagui. They married on 18 March 1944 while Mr Byrne was home from New Guinea for 40 days leave. When he was to return to duty, he was too ill with malaria, and spent time in a hospital on the Sydney Show Ground and then convalesced in a hospital at North Sydney. That covered a period of about six months
20. Mrs Byrne first saw him have a cigarette at a dance when he was about 15. She does not remember him having his own cigarettes. She described him as a non-smoker although she did see him smoke occasionally. Before service she said that Mr Byrne was “as fit as a fiddle”. He was a very strong swimmer, had been awarded the Bronze Medallion and was very confident when swimming in the ocean currents and surf. He used to love fishing and owned a boat from 1954 onwards. Mrs Byrne stated that they did not go fishing often in the last twelve months of his life as Mr Byrne “was so tired”. He told a friend of theirs about a week before his death how tired he was feeling. She also said that he did not play golf or tennis as much as he had previously.
21. Mr and Mrs Byrne ran a hairdressing salon in Tumut. Mr Byrne did all the cutting. He worked Monday to Friday, 9 til 5 or sometimes later, and Saturday morning. He had appointments every quarter of an hour. Thursday, Friday and Saturday were the busiest days. The business was dependent on him.
22. She felt that her husband had never been the same after the war. When Mr Byrne returned from war he had stomach problems and suffered from stomach ulcers. He frequently took Mylanta and Quickeze. He had contracted malaria. He had a very heavy smoking habit when he returned from the war, smoking 40 cigarettes a day. It got worse and worse. In the last 12 months of his life he had a puff of a cigarette every 20 minutes between appointments. She would put the cigarettes away and he would say he would not work unless she brought them back. He had a shell beside his bed which he used as an ashtray. He would awaken at night and have a cigarette.
23. Her husband was not a big drinker as he would become ill from drinking due to the ulcers.
24. Mrs Byrne gave evidence about recurrent bouts of malaria, up to eight or 10 months before he died. In cross-examination she said that at the time she had thought it was influenza, but thinking back, they could have been malaria. She did not know what he took. When asked whether Mr Byrne complained of headache during these bouts, Mrs Byrne said that he was forever pressing his head and that he had sinus trouble too.
25. He complained of nerves after the war. Mrs Byrne said his nerves would mean that he had no energy. He would shake a little bit, but “whether it was from nerves…, I don’t know, my interpretation”. Mr Byrne did not talk about the war to her but told other people, for example, about a sniper killing the man in front of him and the man behind him but he was not shot. She felt that this story caused him incredible stress.
26. Mr Byrne did not have life insurance until December 1961 when he took out a policy so that if anything happened to him, she would be okay. Mrs Byrne felt “now, thinking back, he was feeling pretty awful to take out a life insurance” policy.
27. They were going to go to Goulburn on the Saturday before he drowned to see their son receive an award at his school in Goulburn but did not go because of Mr Byrne’s health, that is, he was too tired. That would have involved driving for 2 or 3 hours to get there. When he went fishing the next morning at 4.30 am, it would have taken one to one and a half hours to drive to the fishing spot.
28. Mrs Byrne is unhappy with how the coronial inquiry was conducted and believes that there were factual errors in the report. She believes that the inquiry wanted to write the accident off as a drowning but she believed that there was ample evidence to show that her husband had died from a heart attack. She believes that he could not have drowned as he was such a strong swimmer. From the description his fishing mates gave of his drowning, she believes that he had a heart attack. She believes that he had a heart condition because in the years just prior to his death he felt tired all the time. He had not complained of chest pain. She could not recall shortness of breath.
29. She also believes that even if he did drown, then his war service is to blame for his inability to save himself in the water, due to the malaria, stomach ulcers and weak heart from smoking.
Statement of Mrs Arentz
30. A statement from Mrs Arentz was in evidence. She has known Mr and Mrs Byrne for many years as her husband served during the war with Mr Byrne. She states that she knew Mr Byrne was unwell after the war and that he suffered from malaria and ulcers, and that he was a smoker. Mr Byrne complained to her two days before he died that he was tired.
Statement of Mrs Hogg
31. Mrs Hogg is Mr and Mrs Byrne’s daughter. She recalls a conversation with her Uncle, Mr Byrne’s brother. The brothers served together. Her uncle told her that her father had gone on an expedition for him and that it had gone wrong. Mr Byrne had to lie in the jungle for days not moving, with bugs all over him, until Japanese troops left. Mr Byrne had had severe stomach ulcer pain while he was in the jungle. Her uncle said that her father’s health had never been the same after the war and that he was never strong after that. He knew there was no water in his lungs and that but for his war service he would have been strong enough to survive.
Medical Evidence
32. All the medical evidence apart from that of Dr O’Keefe was based on an analysis of documentary material and additional information provided to the doctors more than 40 years after Mr Byrne’s death.
33. Dr Peter Craig provided written statements and gave evidence at the hearing. He is a general practitioner at Randwick and a local medical officer for the Department of Veterans’ Affairs. He has been Mrs Hogg’s doctor for many years. He knew Dr James O’Keefe who performed the post-mortem examination of Mr Byrne.
34. Dr O’Keefe told Dr Craig that his practice in Cooma was the only one servicing Cooma and the Snowy Mountains Scheme. Dr O’Keefe had partners, but often there were only two doctors in the practice. He spoke about the strain of country practice and his wide ranging responsibilities. Dr Craig believes that Dr O’Keefe would have performed the post-mortem to the best of his ability, but he was not a trained pathologist, had only basic equipment, and conducted a simple anatomical examination.
35. Dr O’Keefe noted that the “lungs were voluminous with no froth in the air passages”. Dr Craig considers that that suggests smoking related lung disease, but does not rule out drowning but states that “it is not reasonably possible that Mr Byrne drowned”. As there was some atheroma of the heart, he considers that coronary heart disease (“CHD”) was present. In his opinion, Dr O’Keefe could not have excluded an acute coronary event because he did not carry out a microscopic examination.
36. Dr Craig’s opinion is that Dr O’Keefe erred when determining the cause of death, and “the evidence clearly shows on the balance of probabilities that Mr Byrne suffered a fatal cardiac arrhythmia and died before drawing breath underwater”. In his letter of 14 January 2004 Dr Craig stated that Mr Byrne died of “cardiac arrhythmia, secondary to ischaemic heart disease”. In his oral evidence he stated that it was at least as likely that the cause of death was a cardiac event, as it was drowning. There was no water found in the lungs. Mr Byrne had CAD. IHD is narrowing of the arteries. It played a part in Mr Byrne not being able to help himself. Cardiac arrhythmia meant decreased cardiac output and an inability to swim. Mr Byrne may have suffered angina pain or cardiac arrhythmia and may have lost consciousness due to loss of blood pressure. He also said that a primary symptom of IHD was diminution of exercise capacity. The evidence of his being too tired to play tennis meant that he was afraid to go onto the court which may be interpreted as evidence of angina symptoms in the absence of any other explanation of those complaints.
37. He also did not consider that there was evidence that Mr Byrne suffered a significant injury prior to immersion that would have caused him to stop breathing. This was a small possibility.
38. During his oral evidence, Dr Craig said that Mr Byrne’s general tiredness may have arisen from his peptic ulcer because he may have been anaemic. He also added “chronic relapsing malaria” as a contributor to tiredness. They may have incapacitated Mr Byrne at the time of the accident. He would not defer to a cardiologist because “we can only conjecture”.
39. When he was asked about the lack of chest pain reported by Mr Byrne, Dr Craig said that he complained frequently of nervous dyspepsia and that heart pain can be referred to many places.
40. Dr Juliet Burn, a specialist pathologist, provided a report. She stated that after reading a one page summary of the autopsy findings she agrees with Dr Craig that “the presence of coronary artery disease contributed to, and was likely to be the cause of, Mr Byrne’s death.” She referred to a “recent review of sudden adult death”, which was not in evidence but which “revealed that the majority of cases of sudden death were due to previously undiagnosed cardiovascular disease, such as coronary artery disease, cardiomyopathy, myocarditis and other cardiac causes”.
41. Dr Freeman, cardiologist, wrote that “Dr Peter Craig, a colleague of mine in the Randwick area has asked me to comment on the cause of death of Mr Eric Byrne”. The doctor does not refer to the material that he had when preparing the report. He says:
From a Cardiologists’s perspective there does appear to be some evidence to support the hypothesis put forward by Dr Peter Craig that this man suffered a sudden cardiac death and did not die as a result of drowning.
Undoubtedly he had significant coronary artery disease as there was evidence of atheroma in the aorta and coronaries and it is quite possible the sudden emotional and physical stress which might result from a boat capsizing could have triggered ischaemia and the development of a fatal arrhythmia. This may explain his complete incapacity to save himself, given his background of being a good swimming in the absence of other injuries.
The lack of macroscopic evidence of myocardial infarction is quite consistent with time course of the chain of events described. Macroscopic changes of infarction may take some days to evolve.
Clearly, it is difficult 42 years later to be dogmatic as to the cause of death in this man but certainly the possibility of sudden cardiac death needs to be considered.
42. Dr Edwards, physician, provided a written report and gave oral evidence. His opinion was that the “finding of some atheroma aorta and coronary arteries but no obstruction of latter” would not be unusual in Mr Byrne, because he was smoking from his teenage years and consumed milk products to treat his peptic ulcer. He noted that Dr O’Keefe recorded that there was no coronary artery occlusion and that the heart was small. In his opinion, that this testing was carried out, demonstrates that Dr O’Keefe was considering causes of death other than drowning but was unable to find a cardiac cause of death. Dr Edwards’s opinion was that Mr Byrne did not suffer from IHD.
43. In his opinion, Mr Byrne was asphyxiated because of drowning. He considered it probable that he struck his head on the side of the boat which caused him to lose consciousness. He then died of drowning. He does not consider that Mr Byrne’s accepted conditions contributed in any way to his death.
44. He considered that Associate Professor Richards supports his position that Mr Byrne was unconscious before slipping from the boat, but that Associate Professor Richards failed to consider the bruise on the forehead or the possibility that the head injury could account for his inability to save himself. In oral evidence, Dr Edwards said that the note stating that there was an abrasion to Mr Byrne’s forehead supported his view that he was struck on the head and was unconscious.
45. He also commented that Dr Craig and Dr Freeman did not consider the bruise on the forehead.
46. Dr Edwards said that CAD is not IHD. The latter is a disease of the muscles resulting from reduced blood supply, not a disease of the artery. He agreed that atheroma indicates CAD which may or may not result in ischaemia. He also agreed that CAD could have impaired Mr Byrne’s ability to survive in water if it resulted in limited blood supply to the heart such that it created pain, then Mr Byrne possibly had an irregular heart beat. He could not rule out the possibility that Mr Byrne had a cardiac event. He also accepted that tiredness can be an initial manifestation of IHD but more usual complaints are breathlessness and pain.
47. Dr Edwards could not accept that malaria, remote from some chronic attack, could contribute to Mr Byrne’s inability to save himself. If there was a duocenal ulcer, he would not see that as contributing to an inability to save himself unless he was bleeding, anaemic and tired, of which there was no evidence. He did not consider that nervous dyspepsia was a factor in Mr Byrne’s inability to save himself.
48. Reports from Associate Professor Richards were in evidence and he gave concurrent oral evidence with Professor O’Rourke. Both are cardiologists. Associate Professor Richards stated that the eye-witness accounts that Mr Byrne made little or no attempt to swim was because of “cardiac arrest and death before he finally slipped from the upturned boat”. That there was no water in his lungs, together with the evidence of the witnesses, strongly supports arrhythmia. Cardiac arrest may have been due “to primary ventricular fibrillation associated with sudden immersion, or may have been due to ventricular fibrillation or asystole secondary to myocardial ischaemia due to coronary arterial spasm or thrombotic coronary arterial occlusion”. We understand this latter possibility to be what the doctor also expressed in simpler terms as a non obstructive lesion may have ruptured and caused a blockage.
49. In his opinion, Dr O’Keefe erred in his cause of death determination. Mr Byrne had IHD which was war caused because Mr Byrne developed a smoking habit while on operational service and that factor 5(f)(i) of Statement of Principle No. 53 of 2000 for IHD was fulfilled. Associate Professor Richards said that avoidance of activity is a common manifestation of IHD because activity causes discomfort. In his opinion Mr Byrne avoided tennis because of myocardial discomfort, and dyspepsia may also have been due to the same cause.
50. The opinion he expressed in his report in response to the question “What is your opinion as to the likely cause of death?” was “Cardiac arrest due to ventricular fibrillation or asystole in the context of demonstrated atherosclerotic coronary arterial disease.” He also stated in answer to another question that he believed Mr Byrne had IHD.
51. As he concluded that death was not by drowning, he stated “Not applicable” in response to the question “… is there a reasonable hypothesis to link death with peptic ulcer disease or malaria?”
52. Professor O’Rourke’s opinion was that Mr Byrne was not unconscious when he was thrown from the boat and that there was no suggestion that he did not attempt to stay afloat. He reports that “dry” lungs are found in many (up to 20%) of persons who die from drowning and this is often due to laryngeal spasm. He supports Dr O’Keefe’s opinion and the Coroner’s finding that the cause of death was drowning.
53. He does not consider that Mr Byrne suffered from a cardiac arrhythmia; rather the primary event was “immersion in cold water with heavy clothing”. He does not agree that Mr Byrne had IHD. While he did have multiple symptoms, there was no chest pain or discomfort related to exercise. There were some coronary atheroscleroses present but they were not obstructive and were insufficient to cause IHD. There was no evidence of IHD (scarring or past infarction) at autopsy. Fatigue is not a symptom of IHD. Primary evidence of IHD is chest discomfort. In his opinion, there was no evidence of ventricular fibrillation caused by IHD and no evidence of plaque rupture and thrombosis. Any thrombus would have been apparent at autopsy.
54. During cross-examination, Professor O’Rourke conceded that he does not know how Mr Byrne’s heart stopped, but it was extremely unlikely that it had stopped immediately Mr Byrne went into the water. He could not rule out a cardiac event. He also pointed out that atheroma of the artery is not a cardiac disability, whereas IHD is. He accepted that Dr Edwards’s view was a possibility. He also emphasised that the autopsy report did not say that there was no water in the lungs.
55. Associate Professor Richards and Professor O’Rouke agreed that the head and neck being cyanosed was not particularly significant.
56. Professor O’Rourke considered Associate Professor Richards’s view to be tenuous, speculative and remote. Associate Professor Richards considered the opinions of Dr Edwards and Professor O’Rourke possible but that arrythmia was more likely.
Consideration of “kind of death”
57. On the balance of probabilities, we find that the “kind of death” is drowning. We do not consider that IHD or CAD was a “kind of death”.
58. All the doctors who gave evidence before us are speculating, to a greater or lesser degree, on the basis of the material provided to them. We prefer the evidence of Dr O’Keefe who did the post mortem. In his letter of August 1963, Dr O’Keefe stated that “the cause of his death was undoubtedly drowning” (our emphasis), despite his reference to Mrs Byrne’s concerns about war disability contributing to her husband’s death. That is, he had no doubt, although a war caused disability “could be a contributing factor. This may be so and would require history of his health before the accident”. There is no evidence that information about Mr Byrne’s history was provided to Dr O’Keefe for his consideration in response to his comment.
59. Dr O’Keefe’s firmly expressed opinion is inconsistent with an opinion that Mr Byrne’s death was caused by IHD or a cardiac event arising from CAD. We find Associate Professor Richards’s and Dr Craig’s evidence that tiredness reflected Mr Byrne’s suffering discomfort on physical exertion such as playing tennis, to be speculative. Mrs Byrne gave evidence that she could not recall her husband complaining of chest pain or shortness of breath. Further, evidence that he worked long hours was given by Mrs Byrne. His then treating doctor made a note to the same effect. This evidence is a more compelling explanation of why Mr Byrne was tired.
60. We found Associate Professor Richards’s evidence confused. His evidence was that IHD was narrowing of the arteries. We do not accept that. We prefer the evidence of Professor O’Rourke and Dr Edwards that IHD is a cardiac disability and CAD is not. CAD may result in IHD because of reduced flow of blood to the heart. Associate Professor Richards’s opinion of the cause of death set out above is selective. He acknowledges that immersion in the water could have caused “Primary ventricular fibrillation”, that is a cardiac event that was not associated with IHD or CAD. He then proceeds to express the view that “cardiac arrest was due to ventricular fibrillation or asystole in the context of demonstrated atherosclerotic arterial disease”. He then expressed the view that Mr Byrne had IHD. Given our finding that IHD is not CAD, in our opinion, when properly understood, the effect of Associate Professor Richards’s evidence about the causes of cardiac arrest in the context of atherosclerotic arterial disease, is that CAD was relevantly the kind of death, and not IHD.
61. Mrs Byrne’s evidence that she and Mr Byrne did not go to Goulburn for the evening presentation to their son because Mr Byrne was tired is consistent with his being tired at the end of a five and half day working week. To then drive for some hours to Goulburn would have been very tiring.
62. However, he was prepared to get up very early on Sunday morning to go fishing. It is apparent from the statements of Mr Wortes and Mr Armstrong that they were at the wall of the dam at 4.30 am the following day. Mrs Byrne’s evidence was that the drive to the dam took 1 to 1.5 hours. We prefer the contemporaneous evidence of Mr Wortes and Mr Churchill about their being at the wall of the dam at 4.30 am to Mrs Byrne’s present recollection of the time Mr Byrne left home that morning. Therefore, Mr Byrne must have left Tumut at 3 or 3.30 am to go fishing. He drowned sometime around 9 am, when he had been awake for about five and a half or six hours.
63. We find on the evidence of Mr Armstrong and Mr Wortes that Mr Byrne held on to the boat for some minutes and then seemed to be dragged down by his coat. It is significant that Mr Armstrong said that he himself “was exhausted” and could no longer help Mr Byrne. We do not accept that Mr Byrne died before going into the water as Dr Craig and Associate Professor Richards speculated. We do not consider that he made no effort to save himself. Mr Armstrong said to Mr Byrne to come over the boat when he first went into the water and Mr Wortes stated that they held on to the boat for some minutes. We find that Mr Byrne did go over to the boat and hang on to it for some minutes, and that Mr Wortes and Mr Armstrong helped him until Mr Byrne slipped off the boat and disappeared.
64. Dr O’Keefe’s opinion is supported by Professor O’Rourke and Dr Edwards, for differing reasons. Of particular assistance is Professor O’Rourke’s evidence about the incidence of laryngeal spasm in deaths by drowning. We consider that Dr O’Keefe would have carried out the post mortem to the best of his ability and was in a better position to make a finding than any doctor considering the available material 40 years later.
65. Dr Edwards’s comments about Dr O’Keefe looking for a cardiac cause of death and not finding one, and his and Professor O’Rourke’s opinions that Mr Byrne did not suffer from IHD, as set out above, support our conclusion that IHD was not a kind of death. There is a SoP for IHD, but given our finding it is not relevant.
66. Given the evidence as it evolved during the hearing, we understood Mr Vincent to argue in submissions that another possible “kind of death” was CAD. We accept that Mr Byrne had CAD, however, we are not persuaded on the balance of probabilities that CAD was a cause of his death. The principle evidence Mr Vincent relied upon was Associate Professor’s Richards opinion, set out above. It seems to us that Associate Professor Richards started with two premises and developed his opinion from them. They were that Mr Byrne had no water in his lungs and that he made no effort to save himself. We do not accept that either premise is correct.
67. The evidence of Dr Burn and Dr Freeman also support a finding of death as a result of CAD. However, we do not find their reports very helpful. Dr Burns seems only to have seen an autopsy report and was considering the causes of a “sudden death”. Dr Freeman’s opinion was based to a significant extent on Mr Byrne’s inability to save himself. Further, Dr Freeman’s opinion was given in the context of considering Dr Craig’s “hypothesis” as to the cause of death.
68. We do not consider that the evidence of Associate Professor Richards, Dr Craig, Dr Freeman and Dr Burn is consistent with the contemporaneous evidence of Mr Armstrong and Mr Wortes as set out above or with the evidence of Dr O’Keefe. On the balance of probabilities, we are not satisfied on the evidence that CAD was a “kind of death” in this case.
69. Other than the clinical history available at the time of the coronial inquiry, no clinical history apart from Mrs Byrne’s recollections 40 years later have been put to any of the doctors who provided evidence for this proceeding. There has not been any relevant development in medical science in the last 40 years or new information provided in this case that would persuade us that the views come to from recent assessments of the available material should be preferred to the opinion of the doctor who carried out the post mortem.
70. We find that the kind of death in this case was drowning. There is no Statement of Principle (SoP) for “drowning”. If there is no relevant SoP in force, contrary to the suggestion in Repatriation Commission v Deledio (1998) 83 FCR 82that the case must fail, the application must be assessed in the manner discussed in cases such as Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 (see Hancock at [10], Bull v Repatriation Commission [2001] FCA 1832 at [14], Repatriation Commission v Towns [2003] FCA 1262 paragraph 28). The latter was a case dealing with a death claim where there was no relevant SoP. The case of East v Repatriation Commission (1987) 16 FCR 517 is also relevant as it was concerned with a death claim before the SoP regime came into existence.
Is there a reasonable hypothesis connecting Mr Byrne’s death with his service?
The case put for Mrs Byrne
71. Mr Vincent who appeared for Mrs Byrne proposed two hypotheses in the event that we found Mr Byrne’s death was from drowning and therefore outside the SoP regime.
72. Hypothesis 1: That Mr Byrne’s accepted conditions of malaria and duodenal ulcer impaired his ability to survive being thrown into the Tantangara Dam after his boat had capsized.
73. Hypothesis 2: That Mr Byrne suffered from war-caused IHD that impaired his ability to survive being thrown into the Tantangara Dam after his boat had capsized.
74. Again, given the development of the evidence, we also understood Mr Vincent to raise a third hypothesis during his final submissions. That is, that CAD impaired Mr Byrne’s ability to survive once he was in the water.
75. In considering whether there is a reasonable hypothesis, the following principles set out by the majority in Bushell v Repatriation Commission (1992) 175 CLR 408 apply. We are not concerned with conflicts of fact or opinion in the material before us. The question is does the material raise “the relevant causal hypothesis” (at 413). At p 414 the Court said:
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.
…
“However, a hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phemonena of nature”(Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at 303).
Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or tenuous (East v Repatriation Commission 1987) 16 FCR 517 at 532.
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.”
76. We note also the comments of the majority in that case at page 415 that is 120(3) does not require a choice:
“between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim. Indeed the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran”.
77. In that case Justice Brennan said:
‘It would be an exceptional case in which it would be right for the A.A.T., forming its own view of competing medical theories, to hold an hypothesis of connection favouring entitlement to be unreasonable, when the hypothesis is supported by ‘a respectable medical practitioner, speaking within the ambit of his expertise”’ (p 430).
78. In Byrne , the majority said:
In some cases, the hypothesis may assume the occurrence or existence of a “fact”. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant’s hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe head injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.
79. The assumed fact in that case was that the injury to the veteran’s neck had been severe.
80. In East the Full Federal Court approved the Tribunal’s analysis of what a reasonable hypothesis was and concluded at 533:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities”.
81. In Bull, the Court considered East in detail and said at paragraph 18:
However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis”.
82. In the case of Hypothesis 1, there is material pointing to the following raised facts. Mr Byrne had accepted conditions of malaria, duodenal ulcers and nervous dyspepsia. Mrs Byrne gave evidence about how each of those conditions affected Mr Byrne, and about Mr Byrne’s tiredness during the 12 months before he died. Ms Hogg gave evidence about her Uncle’s story and his opinion that Mr Byrne’s health never recovered. Mrs Arentz gave evidence that she knew Mr Byrne suffered malaria and ulcers and was unwell after the war, and that he looked unwell and was tired on the Friday before he died. Dr Craig expressed the opinion that the conditions impaired Mr Byrne’s ability to save himself. In oral evidence he said that Mr Byrne’s general tiredness may have arisen from his peptic ulcer because he may have been anaemic. Mr Byrne was a good swimmer but had to be helped as described by Mr Wortes and Mr Armstrong.
83. However, Mrs Byrne’s opinion that her husband had suffered bouts of malaria was come to “in hindsight”. At the time she thought he had influenza. The clinical notes for the period 1959 to 8 June 1962 listed dyspepsia, nervous dyspepsia and influenza a number of times during that period but not malaria. The last mention of influenza was in June 1962. There was no mention of malaria. Dr Harbison’s document prepared on 6 December 1962, reported treatment for peptic ulcer at infrequent intervals “for many years” although dates could not be given “without going back over my records for years back”. Dr Edwards considered that the accepted conditions did not contribute to Mr Byrne’s death. Given his opinion as to the cause of death, Associate Professor Richards said those conditions were inapplicable. There was no evidence that Mr Byrne was anaemic because of a duodenal ulcer or at all.
84. On the authorities, taking into account all of the material before us, we do not consider that a reasonable hypothesis has been raised. In our opinion this hypothesis is too tenuous.
85. The raised facts in relation to Hypothesis 2 are that Mr Byrne suffered IHD. That evidence was given by Dr Craig and Associate Professor Richards. They concluded that this was because Mr Byrne was tired and speculated that that meant he did not undertake activities such as tennis because he was suffering from chest pain. He had no water in his lungs. He was a good swimmer but was unable to save himself. Mr Byrne’s developed a smoking habit during service according to Mrs Byrne. Smoking causes IHD. The sniper incident had caused him “incredible stress”. He had trouble with his nerves.
86. Material opposed to that evidence was that Mr Byrne had never complained of chest pain to Mrs Byrne, and that Professor O’Rourke and Dr Edwards were of the opinion that Mr Byrne did not have IHD although they accepted that he had CAD. Their opinion was that IHD was a cardiac disability, and CAD was not.
87. In our view, this material does raise a reasonable hypothesis, for hypothesis 2, that connects Mr Byrne’s death with his service.
88. The material raises the following facts in relation to Hypothesis 3. Associate Professor Richards, Dr Freeman and Dr Burn relate death to CAD. Associate Professor Richards’ opinion was that the cardiac arrest was due to ventricular fibrillation or asystole in the context of demonstrated atherosclerotic coronary arterial disease. Dr Edwards accepted that Mr Byrne’s intake of milk for his accepted ulcer condition would have contributed to CAD. As summarised above, Professor O’Rourke and Dr Edwards disagree that Mr Byrne’s death was related to CAD.
89. Having considered all the material before us, we find that this is a reasonable hypothesis connecting Mr Byrne’s death with his war service.
90. Having found that there are reasonable hypotheses raised by the material before us, the approach set out in Byrne at [571] by Mason CJ, Gaudron and McHugh JJ is relevant. Their Honour said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
91. Having considered all the evidence, we are satisfied beyond reasonable doubt that Mr Byrne’s death did not arise out of and was not attributable to a cardiac event of a kind described by Associate Professor Richards, Dr Craig, Dr Freeman or Dr Burn, that is, a cardiac event that was a consequence of IHD or CAD.
92. Taking into account Dr O’Keefe’s findings and the opinions of Dr Edwards and Professor O’Rourke, we are satisfied beyond reasonable doubt that Mr Byrne did not suffer from IHD. Dr Craig’s and Associate Professor Richards’s opinions were based on speculation that the reason Mr Byrne did not participate in tennis was that he suffered discomfort attributable to IHD. He had not complained of any such discomfort to his wife or to his treating doctors.
93. The opinions relating death to IHD and CAD were based essentially on there being no water in Mr Byrne’s lungs and his “inability” to save himself. Those opinions concluded that death was caused by such a cardiac event rather than by drowning. On the evidence, we are satisfied beyond reasonable doubt that Mr Byrne drowned, and that neither IHD nor CAD contributed to his death.
Decision
94. Accordingly, we affirm the decision under review.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Member, Dr John Campbell
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 23-24 March 2006
Date of Decision 12 May 2006
Counsel for the Applicant Mr M. Vincent
Solicitor for the Applicant Dibbs Abbott Stillman
Advocate for the Respondent Department of Veterans' Affairs
11
0