Cairns and Repatriation Commission
[2007] AATA 1682
•21 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1682
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200500841
VETERANS' APPEALS DIVISION ) Re AUDREY CAIRNS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott, RFD Date21 August 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd].............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – veteran had WWII army service – no accepted medical conditions – cardiovascular accident – hypertension – Statements of Principles – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 8, 120, 120A
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Towns [2003] FCA 1262
Repatriation Commission v McKenna (1998) 52 ALD 72REASONS FOR DECISION
21 August 2007 Senior Member P McDermott, RFD Introduction
1. Mrs Audrey Cairns was a dependent of the late Mr Robert Cairns who served with the Australian Army during World War II. She has applied for a war widow’s pension. In these proceedings I have to essentially decide whether the death of the late Mr Cairns was related to his service.
Decisions
2. On 24 December 2004 the Repatriation Commission (the Commission) rejected a claim for war widow’s pension on the ground that the death of the veteran was not related to his service.
3. On 7 February 2005 Mrs Cairns sought a review of this decision from the Veterans’ Review Board (the Board). On 22 September 2005 the Veterans’ Review Board affirmed the decision of the Commission.
4. Mrs Cairns has now applied to this Tribunal to review the decision of the Veterans’ Review Board which affirmed the decision of the Commission.
Issues before the Tribunal
5. I have to decide whether the death of the late Mr Cairns was war-caused within the meaning of s 8 of the Veterans’ Entitlement Act 1986 (the Act).
Service
6. The late Mr Cairns rendered a period of operational service in the Australian Army from 1 April 1942 to 22 May 1946.
7. Mr Cairns served on Thursday Island (18 December 1943 to 23 September 1944); Morotai (26 June 1945 to 21 September 1945); Ambon (27 September 1945 to 18 January 1946) and Rabaul (23 January 1946 to 9 May 1946).
Evidence of Alcohol Consumption of Applicant
8. Mrs Cairns made a number of statements which were admitted into evidence: statement, 17 May 2006 [ex. A1]; statement, 14 September 2006 [ex. A2]; statement, 26 March 2007 [ex. A3]. She verified the contents of these statements when she gave evidence.
9. Mrs Cairns first met the late Mr Cairns in about 1962 and they married in 1966. Prior to this time there is evidence from the first wife of the late Mr Cairns that his consumption of alcohol was in the context of his socialising at rugby league functions and parties: Statement of Aileen Mary Warburton, 14 March 2007, Ex A6, para 6.
10. Mrs Cairns stated that when she met the late Mr Cairns he was a drinker and footballer. He used to play A Grade rugby for the Souths Club. He used to drink heavy beer. She stated: “Drinking was part and parcel of the football” and that “when he was playing football, he used to drink quite often. He could not afford to drink every night but he used to party with other footballers every weekend during the football seasons”. Mrs Cairns remarked: “From the time of his marriage to me things stayed the same. He did not drink as much then as he did after his retirement but still, every weekend he would be playing football and he would be drinking after each game. We would party on all night nearly and he would certainly be drinking solidly for hours” [Ex A1].
11. Mrs Cairns stated that his drinking habits did not diminish during his retirement in 1988. When he retired he drove a taxi which Mrs Cairns described as a “hobby job”. His consumption of alcohol was not such that he was charged with drink driving.
12. When he had fully retired he was home alone during the day. At that time he adopted the habit of being a social drinker during the day. It was when he was fully retired that his alcohol consumption appeared to increase. Mrs Cairns said: “when he was on his own after retirement, he then started going to the pub and he went to the pub rather than sit at home on his own. He was at the pub everyday. He would always be there when I got home from work and he had a meal cooked for me, so he did not stay at the pub and drink all day. This pattern of drinking continued up until the time of his death”.
13. I accept that Mrs Cairns has endeavoured to give her evidence of the alcohol consumption of Mr Cairns to the best of her ability. She provided evidence of his alcohol consumption in a statement that was admitted into evidence [ex A1]. As well she had also completed an alcohol questionnaire that was tendered before the Veterans’ Review Board [T1, fols. L-M]. Essentially she stated that Mr Cairns would consume 6 “tallies” (26 oz or 750 ml bottles) per day.
14. Ms Diane Parlor, sister of the applicant, gave evidence that in 2005 when Mr Cairns died, his alcohol consumption was between 2 to 4 large bottles a day.
15. It is undisputed that Mr Cairns did not drink alcohol before his service in the Army. This is confirmed by the statement of Ms Maureen Smith who gave evidence before the Board that he did not drink prior to service. She also then stated that he drank in “moderation” in company with the applicant [ex. A, T5, fol. 27]. In a later statement she stated that after he returned from World War II he would drink six 10 oz glasses of beer a night: statement, 15 September 2006 [ex. A4].
16. It is clear from the evidence of Ms A Warburton, the first wife of Mr Cairns, that his drinking activities were part of his football activities [ex. A6]. This was also the case when Mr Cairns was married to the applicant.
Relevant legislation
17. In deciding this application I am required to have regard to s 120 of the Act. During the hearing I adverted to the fact that the applicant does not bear any onus of proof: see s 120(6). As this application raises the application of a number of Statements of Principles, I must also have regard to s 120A which provides that the reasonableness of a hypothesis advanced by a claimant is to be assessed by reference to a Statement of Principles which has been determined by the Repatriation Medical Authority. In Repatriation Commissionv Deledio(1998) 83 FCR 82 the Court explained the four steps in the reasoning process that I must undertake in order to determine whether a condition is war caused.
Determining the kind of Death
18. It is important for this Tribunal to determine the “kind of death” that is applicable to the veteran.
19. In Repatriation Commission v Hancock [2003] FCA 711, Selway J explained, at [9], that:
“in order to ascertain whether a SoP applies it is necessary to identify the … ‘kind of death’ suffered by the veteran: see s 120A(2) and s 120A(4) of the Act”.
20. The death certificate records that Mr Cairns died on 2 August 2004. The death certificate records that the causes of his death were “thalamic haemorrhage” – duration 2 weeks and “hypertension” – duration years [ex A, T4, fol. 19].
21. There is no material before me which contradicts the causes of death which are certified in the death certificate. I also mention that in a letter from Dr R Richardson, he stated: “It would appear that Mr Cairns had a very labile blood pressure with significant high readings from the middle of 2002” [ex A7].
22. I find that Mr Cairns died from a cerebrovascular accident, and that hypertension was a contributing cause of his death.
23. I mention that the service medical records record that Mr Cairns contracted malaria whilst on service. However, no contention was advanced before me to suggest that malaria was a cause of his death.
Reasonable Hypothesis Connecting Death and Service
24. In order for Mrs Cairns to succeed it is necessary that the veteran’s hypertension and cerebrovascular accident are related to his war service. The veteran suffered from hypertension, as well he suffered from a cerebrovascular accident which had a duration of two weeks prior to his death. There are Statements of Principle for both of these conditions: Cerebrovascular Accident, Instrument No 51 of 2006; and Hypertension, Instrument No 35 of 2003, as amended by Instrument No 3 of 2004. These Statements of Principle are relied upon by the applicant: Statement of Facts and Contentions, 2 April 2007, para 5 [ex. A10].
25. The Statement of Principles for Cerebrovascular Accident, Instrument No 51 of 2006 contains the following factor: factor 6(f), “drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident”. This factor is relied upon by the applicant in the applicants’ Statement of Facts and Contentions, 2 April 2007, para 9 [ex. A10].
26. The respondent has quite properly conceded that the quantity of 250 g of alcohol per week, which is the equivalent of 3.6 standard drinks per day, appears to have been satisfied. However, there is no material before me concerning whether this consumption is service related. There has to be a reasonable hypothesis which is pointed to by the facts. Here the consumption of alcohol appears to be the linking of alcohol after sporting activities. This is the example which is given by Emmett and Allsop JJ in Bull v Repatriation Commission (2001) 66 ALD 271 at 283. I also mention that the Veterans’ Review Board pointed out that there was no evidence before the Board of any service related condition for which the veteran might have self-medicated with alcohol.
27. In addition, at the hearing the applicant also raised for contention factor 6(a) of the SoP for Cerebrovascular Accident which refers to the veteran “having hypertension at the time of the clinical onset of cerebrovascular accident”. However, whilst Mr Cairns certainly had hypertension prior to his cerebrovascular accident, for reasons which appear later, I have come to the conclusion that the hypertension is not service-related. In my view, this precludes the application of this factor.
28. Mrs Cairns is also entitled to have her claim considered with reference to the SoP for Cerebrovascular Accident No 52 of 1999. I make the observation that there is no material difference between factor 5(e) in the 1999 SoP and factor 6(f) in the 2006 SoP.
29. The Statement of Principles for Hypertension, Instrument No 3 of 2004 contains the following factor: factor 5(b), “consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol”. This factor is relied upon by the applicant: Statement of Facts and Contentions, 2 April 2007, para 6 [ex. A10].
30. In the Statement of Principles for Hypertension, Instrument No 35 of 2003, the term “hypertension” is defined by permanently elevated blood pressure, evidenced by a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg or where there is regular antihypertensive therapy to reduce blood pressure.
31. I have to determine the time of the clinical onset of hypertension. I have to make a finding of the date of clinical onset of that condition on the basis of the material that is before me. Dr Richardson has pointed to the significant high readings of blood pressure which occurred from the middle of 2002. The applicant submitted that the clinical onset of the veteran’s hypertension was in June 2002.
32. I have reviewed the service medical documents which have been in evidence before me. Mr Cairns had a medical examination on 23 March 1942; this was in the month prior to his enlistment. His blood pressure readings were not entered on the usual entry point on the medical history sheet but were listed in Table VI which lists defects detected by the examining doctor, who appears to be Dr R.H. Gundelach [ex A, T4, fols 5 and 6A]. In Table VI on the medical history sheet a systolic reading of 140 is recorded [ex A, T4, 6A]. The examining officer recorded this “systolic pulmonary” condition on the examining sheet under the entry of “slight defects, but not sufficient to cause rejection” [ex. A, T4, fol. 5]. This systolic reading, which satisfies the definition of “hypertension” in the Statement of Principles, is evidence that the clinical onset of hypertension had indeed occurred before Mr Cairns had enlisted in the Australian Military Forces.
33. As there is documented evidence that Mr Cairns had hypertension prior to his enlistment there is in my view no basis for any reasonable hypothesis that the condition of hypertension was service related.
34. In determining this application it is also important to have regard to the Statement of Principles for Alcohol Dependence or Alcohol Abuse: Instrument No 76 of 1998. This Statement of Principles was not relied upon by the applicant as the case for the applicant was brought on the basis of the hypertension condition: Statement of Facts and Contentions, 2 April 2007, para 5 [ex. A10]. I consider that I am nevertheless bound to consider this Statement of Principles in view of the material which has been placed before me, particularly the material from the research of Associate Professor McCarthy and Corporal Cosgriff’s diary. The application of this Statement of Principles has been fairly raised by the respondent: see submission on alcohol abuse, submission, 17 April 2007, para. 15. The applicant advised that they did not propose to reply to this submission on 20 June 2007.
35. I have considered whether factor 5(b) of the Statement of Principles for Alcohol Dependence or Alcohol Abuse: Instrument: No 76 of 1998 is satisfied in his case. One difficulty that is placed in the path of the applicant is the requirement that if any severe stressor is experienced by the applicant, then this must be within two years before the clinical onset of alcohol dependence or alcohol abuse. There is no material before me which enables me to say that the “template” is satisfied in this respect. This is because there is no material before me which shows that the clinical onset of alcohol dependence or alcohol abuse had occurred within two years of the conclusion of hostilities.
36. I have made a ruling that the case for the applicant did not meet the “template” of the various Statements of Principles. It is therefore not necessary for me to undertake the final Deledio step, whether I am satisfied beyond reasonable doubt that the veteran’s death was not war-caused within the meaning of s 8 of the Act. The material before me included the statement of Mrs Cairns that some of the mates of her late husband “were shot and killed, some right next to him” [ex. A2, para 5]. I feel that I should record that I am satisfied from the research of Associate Professor McCarthy that the veteran was not involved in combat.
37. I acknowledge that the late Mr Cairns certainly volunteered to defend Australia at a time when the very existence of our nation was under threat. However, under the scheme of the Act I am unable to grant this application.
Decision
38. I affirm the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott RFD
Signed: .....................................................................................
F. Kamst, Legal Research OfficerDate/s of Hearing 2 April 2007
Date of final submissions 20 June 2007
Date of Decision 21 August 2007
For the Applicant Ms S Anderson of Counsel
Mullins, Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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