Carter and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2018] AATA 1642

Carter and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2018] AATA 1642 (13 June 2018)

Division:VETERANS’ APPEALS DIVISION

File Number:           2016/3455

Re:Susanne Carter

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:13 June 2018  

Place:Perth

The decision under review is affirmed.

.....[sgd]...................................................................

Deputy President Boyle

CATCHWORDS

Veteran’s Affairs – service death – cause of death possible Non-Hodgkin’s lymphoma – did the serviceman suffer from tropical sprue – peacetime service – standard of proof – meaning of reasonable satisfaction – decision under review affirmed

LEGISLATION

Military Rehabilitation and Compensation Act 2004 (Cth) – s 6, s 23, s 24, s 27, s 28, s 28(1), s 28(1)(e), s 335(1), s 335(3)

Veterans’ Entitlements Act 1986 (Cth) – s 120(4)

CASES

Murray and Repatriation Commission [1997] AATA 117

Repatriation Commission v Smith (1987) 15 FCR 327

SECONDARY MATERIALS

Statement of Principles concerning Non-Hodgkin’s lymphoma No. 29 of 2010

REASONS FOR DECISION

Deputy President Boyle

13 June 2018

THE APPLICATION

1. This is an application for the review of a decision of the Veteran’s Review Board affirming an original decision of the Military Rehabilitation and Compensation Commission made under s 24 of the Military Rehabilitation and Compensation Act 2004 (Cth) (the MRC Act) to deny liability in respect of the death of a serviceman.

   BACKGROUND

2. The Applicant was a dependent and is the widow of the deceased serviceman Mr Carter.

3. On 13 March 2013 Mr Carter submitted a claim for compensation under s 23 of the MRC Act (T17) claiming for intestinal lymphoma and tropical sprue.

4. Mr Carter died on 17 June 2013 after a long illness and extensive periods of hospitalisation (see [23]-[35] below).

5. An autopsy was carried out on 19 June 2013. The autopsy report dated 20 June 2013 (T20) identified the cause of death as “Sepsis secondary to florid bilateral pneumonia” (T20 at 72). The report, under the heading “Clinical”, noted:

   59 year old man initially presenting with pneumonia in the setting of long standing malnutrition, suspected cardiomyopathy, artrial fibrillation and diabetes with a previous history of pulmonary embolism, cerebral infarct, and MALT lymphoma treated with chemotherapy in 2009. Clinically the patient was suspected to suffer from malabsorption and the possibility of Whipple’s disease, sprue, and recurrence of lymphoma within the bowel were raised. Additionally the patient was also suspected to suffer from polyglandular autoimmune disease.

6. The death certificate (T18) dated 27 June 2013 identified the cause of death as “Pneumonia and cardiac failure, Immunodeficiency, Chemotherapy, Possible non-Hodgkin lymphoma (4-5 years)”.

7. On 2 December 2013 (T22) a delegate of the Respondent wrote to Mr Carter (then deceased) advising of the acceptance of Mr Carter’s claim for liability under s 23 of the MRC Act for tropical sprue and declining his claim for extranoded B-cell non-Hodgkin’s lymphoma of the small bowel.

8. The Applicant submitted a claim under s 24 of the MRC Act for “Compensation for Dependants of Deceased Members and Former Members” (T24) on 11 December 2013. It is not disputed that the Applicant was a dependent and had standing to make the claim.

9. On a date unknown (the relevant letter is wrongly dated, although the Veterans’ Review Board’s Decision and Reasons of 2 March 2016 refer to the determination of the 21 February 2014) a delegate of the Respondent wrote to the Applicant advising that her claim for compensation had been declined (T15). It is also noted that the first paragraph of the reasons for decision (T15 at 52) wrongly states the date of the Applicant’s claim for compensation in respect of Mr Carter’s death as 31 July 2012, some 11 months before Mr Carter’s death.

10. The reason given for the decision to reject the claim was that the death certificate identified the cause of death as non-Hodgkin’s lymphoma (NHL) (T15 at 52) and that the relevant Statement of Principles concerning Non-Hodgkin’s lymphoma No. 29 of 2010 (SOP No. 29 of 2010) did not include “…exposure to pathogenic bacteria or viral agent while serving in rural/remote areas in Australia and overseas” as a cause of NHL. The decision identifies that cause as being what the Applicant had “…contended that the cause of death was contributed to by” (T15 at 52).

11. There are a number of issues with these reasons for decision. Firstly, the death certificate did not, as asserted, identify the cause of death as NHL. It identified the cause of death as set out in [6] above. Secondly, the Applicant had not contended that the cause of death was NHL caused by exposure as described in [10] above, but rather, in response to question 18 of the claim of 11 December 2013 (T24 at 87), the Applicant advised that she based the claim on such exposure causing tropical sprue, liability for which had been accepted by the Respondent under s 23 of the MRC Act on 2 December 2013 (T22 at 78). The decision and the reasons for decision do not address the claim as it was made which was for death caused by tropical sprue.

12. The reviewable decision, that of the Veteran’s Review Board of 2 March 2016 (sent under cover of a letter dated 12 April 2016) (T2 at 14) which affirmed the delegate’s decision of 21 February 2014, did make its decision on the basis that it was not satisfied that Mr Carter’s death was caused by the tropical sprue for which liability under s 23 of the MRC Act had been accepted.

    THE HEARING

13. This matter was heard by Deputy President Kendall on 22 November 2017. The Applicant gave evidence. The only other witness to give evidence was Professor Duflou who was cross-examined by the Applicant. Subsequent to the hearing Deputy President Kendall was appointed to the Federal Circuit Court and the Tribunal was re-constituted to comprise Deputy President Boyle. Written closing submissions were provided by the parties after the hearing.  

    THE ISSUE

14. The issues for determination narrowed at the hearing from those identified by the parties in their respective statements of facts, issues and contentions (SFIC). In particular the Applicant’s SFIC had claimed that, in the alternative to Mr Carter’s death being caused by tropical sprue, his death was caused by NHL in circumstances which met the requirements of the relevant Statement of Principles for NHL, which is SOP No. 29 of 2010.

15. Paragraph 2.1 of the Applicant’s closing submissions (dated 23 January 2018) states that “…the contentions raised at Paragraph 74 regarding Non-Hodgkin’s Lymphoma (NHL) and Paragraph 75 regarding Gastritis can be disregarded”  and paragraph 2.2 of those submissions states that “[t]he only matter for the Tribunal to decide is whether Mr Carter’s death was a ‘service death’ as defined in s 28(1)(e) of the MRC Act which involves consideration of whether the disease from which he died was Tropical Sprue (being a disease previously determined to be a service disease)”.

16. The Respondent, in effect, agrees with the Applicant’s statement of the issue for determination at paragraph 2.3 of its closing submissions (dated 12 December 2017) and says that the only issue for the Tribunal to determine is whether Mr Carter’s death was a “service death” as defined in s 28(1)(e) of the MRC Act. This involves consideration of whether the disease from which Mr Carter died was tropical sprue, which had previously been accepted as a service disease.

17. The Respondent at paragraph 2.4 of its closing submissions summarises the issue as follows:

    In light of the wording of section 28(1)(e) of the MRC Act, if the Tribunal were to find that the Deceased suffered from tropical sprue, and that tropical sprue was ‘the disease from which he died’, the Tribunal would not be required to consider whether tropical sprue was service related. If such factual findings were made, it would follow that liability for the Deceased’s death exists pursuant to section 24 of the MRC Act.

18. Put simply, the primary issue for the Tribunal is whether tropical sprue was the cause of Mr Carter’s death. If the Tribunal finds that it was then, as the Respondent concedes, the Respondent will be liable under s 24 of the MRC Act. For the sake of completeness, however, if the Tribunal finds that Mr Carter’s death was not caused by tropical sprue, the Tribunal must also consider whether his death was caused by some other cause which would give rise to a liability under s 24 of the MRC Act.

    THE LEGISLATION

19. Section 24(1) of the MRC Act relevantly provides that:

    (1)The Commission must accept liability for the death of a person if:

    (a)the person's death is a service death under section 28; and

    (b)the Commission is not prevented from accepting liability for the death by subsection 34(4) or section 35 or 36; and

    (c)a claim for acceptance of liability for the death has been made under section 319.

    …

    Note 2: The standard of proof mentioned in subsection 335(3) applies to the following:

    (a)claims that the death is a service death that relates to peacetime service;

    (b)…

20. Section 6 of the MRC Act relevantly defines “kinds of service” as follows:

    (1)In this Act:

    (a)warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be warlike service for the purposes of this Act; and

    (b)non-warlike service means service with the Defence Force that is of a kind determined in writing by the Defence Minister to be non-warlike service for the purposes of this Act; and

    (c)peacetime service means any other service with the Defence Force;…

21. Section 335(3) of the MRC Act provides that:

    (3)Except in making a determination to which subsection (1) applies, the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.

22. Section 28(1) of the MRC Act relevantly provides that:

    (1)For the purposes of this Act, the death of a person is a service death if one or more of the following apply:

    (a)…

    …

    (e)the injury or disease from which the person died is an injury or disease that has been determined under section 27, 29 or 30 to be a service injury or a service disease, as the case may be;

    Note 1: The effect of this paragraph is that, if the person has died from an injury or disease that has already been determined by the Commission to be a service injury or disease, the death is a service death. Accordingly, the Commission is not required to relate the death to defence service rendered by the person and sections 338 and 339 do not apply.

    THE EVIDENCE

23. The evidence in this matter was substantial. The history of Mr Carter’s military service was not in dispute. He served in the Australian Regular Army from November 1973 to November 1976. He then served in the Australian Army Reserve from December 2004 up to his death in 2013.

24. During his time in the Army Reserve Mr Carter served a three month posting (July-October 2007) in Malaysia, Thailand, Vietnam and Singapore and served in tropical areas in Australia (Darwin in July 2007 and Tin Can Bay Queensland in 2008).

25. After his return from Malaysia Mr Carter’s medical condition deteriorated. The history set out in the paragraphs which follow are largely taken from Professor Duflou’s report dated 27 April 2017 (Exhibit R3).

26. Gastrointestinal symptoms manifested in November 2007 and became more severe over time. In February 2009 Mr Carter was admitted into hospital in Townsville, Queensland. Multiple tests were carried out. On 13 February 2009 a jejunal biopsy was described by the hospital’s records as showing intense plasma cell infiltrate and a provisional diagnosis of enteropathy type T-cell lymphoma was made pending review of the microscopy. Microscopy of the bowel was eventually considered unhelpful by the treating clinicians and a different diagnosis of coeliac disease, autoimmune enteropathy and B-cell lymphoma was made. Following a haematology consultation a note was made in the medical records of the hospital on 19 March 2009 that: “…It is very likely that he has lymphoma. There is a tiny element of doubt”. Mr Carter was then started on RCHOP chemotherapy. Mr Carter appeared to improve and was discharged from hospital on 25 April 2009.

27. Between January and August 2009 Mr Carter had a large number of biopsies and other tests. In May 2009 Mr Carter’s diarrhoea and vomiting returned, his weight dropped and he also developed a range of complications associated with his chemotherapy including pancytopaenia.

28. By June 2009 a probable diagnosis of autoimmune enteropathy was made and the initial diagnosis of lymphoma was noted as being considered less likely. An anti-enterocyte antibody test was negative. Antibiotics were ceased and on 10 July 2009 Mr Carter was commenced on methylprednisone.

29. In late July 2009 Mr Carter was admitted to the Princess Alexandra Hospital in Brisbane and on review at that hospital the previous diagnosis of lymphoma was noted as being “very dubious”. While in hospital Mr Carter had bloody diarrhoea. Complications also included staphylococcal bacteraemia, likely the result of a catheter, and clostridium difficile infection, for which he was treated. On 6 August 2009 a presumptive diagnosis of tropical sprue was made supported by a positive HLA-DQ2 test. A gluten free diet was commenced and Mr Carter was treated with doxycycline. He was discharged on 5 September 2009.

30. Mr Carter returned to Perth where he remained resident until his death in 2013.

31. Professor Duflou notes that during this time no firm diagnosis was made although both small bowel lymphoma and tropical sprue continued to be considered possibilities. A laparoscopy in July 2010 revealed reactive jejunal lymph nodes and no significant abnormalities in the appendix and ileal biopsies in September 2010 showed minimal non-specific inflammation only. Concurrently Mr Carter had a number of episodes of deep vein thrombosis and pulmonary embolism. His nutrition remained suboptimal as a result of diarrhoea and poor oral intake.

32. In May 2010 Mr Carter presented with intestinal obstruction and subsequent acute renal failure. Adhesions of the bowel were diagnosed and were surgically treated. There was recurrent bowel obstruction on a number of occasions, including in July, August and October 2010, which were managed without further surgical intervention.

33. Professor Duflou advises (paragraph 17 on page 6 of Exhibit R3) that no definite diagnosis of Mr Carter’s abdominal problems was made over the following years, although Mr Carter’s cardiac function appeared to deteriorate over time. In October 2012 Mr Carter had a thrombo-embolic stroke which was found to be due to a mural thrombus in the left ventricle of the heart in the setting of a severely dilated heart. The cause of the heart disease was not determined, but possibilities identified included the effects of anthracycline chemotherapy and excessive alcohol consumption.

34. In January 2013 Mr Carter was admitted to Royal Perth Hospital in decompensated cardiac failure secondary to atrial fibrillation and he required continued inotropic support for adequate cardiac output and blood pressure while in the coronary care unit. A diagnosis of cardiomyopathy was made with severely dilated left ventricle with severe global systolic impairment and ejection fraction of 25%.

35. In April 2013 Mr Carter was again admitted to hospital with severe recurrent pneumonia and his cardiac status continued to deteriorate. He had significant immunosuppression with lymphopaenia and a low CD4 count. The possibility of longstanding superior mesenteric artery syndrome was raised as were IgH lymphoma, mitochondrial neuro-gastrointestinal encephalopathy syndrome (MNGIE) and mitochondrial disorder. Professor Duflou notes that the hospital’s records indicate that the patient became profoundly depressed and discussions were held in relation to palliative care. Mr Carter died shortly after on 17 June 2013.

    The medical evidence

36. Extensive records relating to Mr Carter’s medical history and treatment were put into evidence in the T-documents (Exhibit R1).  These included:

    ·service medical records dating back to his service from 1973 to 1976 and his more recent military service;

    ·medical records from Princess Alexandra Hospital (Brisbane), Townsville Hospital, Sir Charles Gairdner Hospital and Royal Perth Hospital; and

    ·Mr Carter’s death certificate, post-mortem report (brain only), final autopsy report, autopsy report (electron microscopy), supplementary autopsy report (microscopic), and report dated 10 April 2015 by Professor J F Cade, consultant specialist in intensive care, Royal Melbourne Hospital.

37. Two reports by Professor Duflou were put into evidence. The first (Exhibit R3) was dated 27 April 2017 and the second (Exhibit R5) was a supplementary report dated 21 August 2017 which addressed questions raised by the Applicant in her document titled “Statement of Susanne Carter – Response to expert opinion of Prof Johan Duflou”.

38. Professor Duflou, who is a specialist forensic pathologist, has extensive qualifications and experience and senior public medical appointments. He states that for over 30 years he has, as a forensic pathologist, examined, interpreted and reported on cases involving a wide range of illnesses including those that have resulted in death (Exhibit R3 at page 1). He lectures extensively and has published over 100 peer reviewed scientific articles. His full curriculum vita (13 pages) is attached to his report of 27 April 2017 (Exhibit R3).

39. While Professor Cade’s qualifications and experience are not set out in his report which was on Royal Melbourne Hospital City Campus letterhead (T29) and prepared for the Applicant’s application to the Veteran’s Review Board, his signature block lists him as “Prof. JF Cade, AM, MD, PhD, FRACP, FANZCA, FCICM, FCCP, Consultant Specialist in Intensive Care”.

40. The Tribunal accepts that both Professor Cade and Professor Duflou are experts in their respective fields. Professor Cade’s and Professor Duflou’s reports were prepared after Mr Carter’s death on the basis of reviews of the medical records and other documentation with which they had been provided. In total, over 2500 pages of records (Transcript,  p 20) were reviewed by Professor Duflou. The documents provided to Professor Cade for him to prepare his report are set out in T28 (pages 100-177) and the documents on which Professor Duflou relied are identified at paragraph 5 of his report of 27 April 2017 (Exhibit R3).

41. In his first report (Exhibit R3) under the heading “General Comments”, Professor Duflou commented that (page 9):

    There is no doubt that this has been an exceptionally challenging and difficult case for the clinicians involved, and that Mr Carter has suffered a debilitating illness the complications of which eventually killed him. The investigations, which took place over many years in multiple hospitals have been exhaustive, yet no definitive diagnosis has been made in relation to the bowel abnormalities. Many modalities of treatment have been tried over the years, with no real improvement of the patient’s condition in the long term. In such circumstances, it is not uncommon for an autopsy to similarly come to an unclear conclusion, as is the case here. This is also reflected in a lack of definite opinion in a number of my responses to questions asked of me.

42. Similar sentiments were expressed by Professor Cade in his report (T29). In answer to the question “What was the primary cause of the veteran’s death?”, he opined:

    The primary cause of the veteran’s death was undoubtedly pneumonia, both as listed on the death certificate and as concluded by the pathologist following autopsy….

    In turn, the cause of the pneumonia appears to have been Gram-positive bacterial infection, which failed to respond to treatment. No other pathogens were identified. The failure of treatment response was presumably related to the patient’s immunocompromise, a complication which had been clinically reported for some time. Although its exact nature was not specified, it was implied that it may have been a consequence of the chemotherapy given for the initial diagnosis in 2009 of possible NHL of the bowel. Similarly, the cardiac failure which had been problematic during the last months of his life was thought to have been due to chemotherapy-induced cardiomyopathy.

1. In answer to the question “Having contracted tropical sprue in November 2007, how did this condition affect the treatment and/or management of his non-Hodgkin’s lymphoma in 2009?” Professor Cade advised that:

   The veteran may have contracted tropical sprue during his tour of duty in South-East Asia during 2008. Indeed, this condition was accepted as service-related. However, subsequent detailed and prolonged gastroenterological investigation and treatment during 2009 did not provide confirmation of this particular diagnosis, although it did not exclude this possibility. Thus, he may or may not have had tropical sprue.

   If one assumes that he did in fact suffer from tropical sprue and that it was the cause of his symptoms in late 2008-early 2009, then the diagnosis of NHL of the bowel at this time could have been flawed and its consequent treatment with chemotherapy would then have been inappropriate, with all of the risks and none of the benefits of such therapy.

   On the other hand, if he did have both conditions (which would seem unlikely in principle), the presence of tropical sprue would not have been expected to adversely affect the treatment or outcome of any concomitant NHL, except to make his symptomatic management more challenging.

2. In response to the question “Were there any other gastrointestinal conditions which the veteran suffered from?” Professor Cade answered:

   The veteran’s gastrointestinal problems were complex, severe and prolonged, and they remained without a satisfactory unifying diagnosis despite sophisticated specialist investigation in Townsville, Brisbane and Perth.

   Tropical sprue and NHL of the bowel have been discussed above. Whipple’s disease was excluded, and treatment for potential coeliac disease was ineffective. No GI pathogens were identified, and even multiple biopsies failed to yield a pathological diagnosis (after the initial suggestion of possible NHL). Auto-immune and autonomic enteropathy were considered but excluded.

   Thus there was no other specific gastrointestinal condition formally diagnosed. On the other hand, he clearly suffered from chronic enteropathy, with malabsorption and later pseudo-obstruction. These, however, are functional diagnoses, and their underlying aetiology was never satisfactorily elucidated.

3. In response to the question “Can a contention be provided, on the balance of probability, relating the veteran’s death with his Army service?” Professor Cade replied:

   The only contention that comes to mind would be based on accepting (in turn) a diagnosis of tropical sprue, failure to treat this condition (initially), a mistaken diagnosis of NHL of the bowel, an inappropriate course of chemotherapy, chemotherapy-induced immunocompromise, chemotherapy-induced cardiomyopathy and cardiac failure and finally refractory pneumonia. While this may be a reasonable hypothesis to consider, it is hard to see how it might be more likely than not, given the continued diagnostic uncertainties in this case and given the prolonged time-course (of 4.5 yr) of the veteran’s illness.

4. In response to similar questions Professor Duflou provided the following opinions in his first report:

   QUESTION: On the balance of probabilities (as distinct from possibilities), are you able to say what condition caused the death of the deceased? In answering this question could you please give consideration to the deceased’s various diagnosed and undiagnosed conditions, the symptomatology of the conditions and the underlying issues as noted within the medical records and post mortem reports.

   In my opinion, the direct cause of death in this case is relatively straightforward. Both the death certificate and the autopsy conclusions are that the deceased died of pneumonia, with the death certificate additionally indicating that the deceased also died of cardiac failure. The autopsy findings, as described, are certainly consistent with death due to bacterial pneumonia in that there is a provided description of markedly heavy lungs, consolidation of lung tissue and microscopy revealed florid bronchopneumonia with a degree of diffuse alveolar damage, and gram positive cocci and occasional yeast forms. It appears from the description that the pneumonia was predominantly bacterial in nature although there may have been a fungal component as well. In all likelihood, the diffuse alveolar damage described is a typical consequence of the severe pneumonia and not a separate disease entity.

   …

   I therefore conclude that the direct cause of death is best given as “THE COMBINED EFFECTS OF BRONCHOPNEUMONIA AND CARDIAC FAILURE”.

   [Original emphasis]

5. Professor Duflou goes on to say that:

   The difficulty in this case is trying to identify the underlying cause or causes of that pneumonia and heart disease. The deceased was certainly severely debilitated as a result of his longstanding illness or illnesses, and possibly as a result of the associated treatment for the various conditions. The deceased had lost a very large amount of weight in a short period of time, and eventually he lost in the region of 40 kg. He was considered severely malnourished with a BMI of 16.9 kg/m2 (normal approx. 20 to 25) and he had recurrent very low albumin and protein levels in blood tests. He had also been suffering from chronic diarrhoea and persistent vomiting for many years, requiring episodes of parenteral nutrition with its associated complications.

   Both malnutrition and chronic debility have a number of effects on the cardiovascular system, including causing dilated cardiomyopathy. Many micronutrient deficiencies have been implicated in dilated cardiomyopathy, including but not limited to carnitine, copper, iron, magnesium, selenium, thiamine, vitamin B12 and zinc, and many metabolic abnormalities such as hypocalcaemia, hypophosphataemia and hypomagnesaemia can also be causes of this heart condition. Further, excessive alcohol use is a well-known cause of dilated cardiomyopathy, and I note that the deceased was reported as being a weekend binge drinker in a number of entries in the medical record.

   The deceased had also been on multiple chemotherapeutic agents following a diagnosis of likely non-Hodgkin’s lymphoma (NHL), and such medications are a well-known cause of cardiomyopathy. The cardiotoxicity is usually related to dose, and is often progressive over time with rates approaching 20% at five years after treatment, and heart failure associated mortality of 60% cases who have developed cardiomyopathy. However, arguing against chemotherapy related cardiomyopathy in this case is the absence of fairly characteristic histological findings in the heart seen in most cases, and no such abnormalities were described in the deceased’s heart at autopsy. I therefore conclude it is reasonably possible for the deceased’s cardiac failure to be in part the result of treatment with chemotherapeutic agents for NHL, but this cannot be stated with any degree of certainty.

   The deceased was markedly debilitated, and he was noted to be immunocompromised on a number of occasions. No viral or other microbial cause for the immunocompromise was identified, and the general view appears to be that the predominant cause of the deceased’s weakened immune system was his longterm debility, possibly with a contribution by the treatment for NHL. I agree with this view.

   In all, it is my opinion that the deceased’s chronic malnutrition and debility could reasonably be stated to be the underlying cause of the cardiac failure and terminal pneumonia, with a possible contribution by the treatment with chemotherapeutic agents.

   The great difficulty in this case is the identification of the cause of the diarrhoea and vomiting, decreased gastrointestinal motility and multiple occasions of obstruction or pseudo-obstruction of the bowel. The patient has undergone a very large number of investigations, including multiple imaging studies, many laboratory tests and multiple biopsies. After death, he has also had a comprehensive autopsy. Despite this multitude of investigations, no definite cause of the patient’s medical condition was ever positively diagnosed. Multiple biopsies of the patient’s bowel, both before and after commencing various treatments show at most a relatively minor degree of mixed inflammation in the stomach, duodenum and small bowel. There was an incidental Meckel’s diverticulum. Multiple targeted investigations for lymphoma and other forms of gastrointestinal cancer were negative in all these investigations; specifically, there were no clonal cell populations, no abnormal proteins and gene rearrangement studies were considered indeterminate. No enlarged lymph nodes were detected and the bone marrow was essentially normal, albeit reactive.

   In short, I am of the view that there is no pathological evidence of the patient ever having had gastrointestinal lymphoma or any other form of cancer.

   In August 2009, and following a lack of expected response to treatment for NHL, a presumptive diagnosis of tropical sprue was made, and the patient was treated with longterm doxycycline. The diagnosis of tropical sprue is difficult from a clinical and pathological perspective, and this condition is only rarely seen in Australian patients. However, the evidence for the patient having tropical sprue from a histologic perspective is largely lacking: There is no significant blunting/flattening of the villi, there is no indication of crypt hyperplasia, and eosinophil are not described as a prominent feature. Further, the patient, despite extensive and lengthy treatment with doxycycline, did not improve, while such treatment can be expected to result in a full clinical and histologic recovery following a 3 to 6 month treatment with the antibiotic.

   I therefore conclude that although the patient did have longstanding diarrhoea and malabsorption, both of which are seen in tropical sprue, objective evidence for the patient having tropical sprue is lacking, and given the absence of an appropriate clinical response to treatment the diagnosis of tropical sprue can be reasonably excluded.

6. In response to the question “If so, what do you consider caused the death of the deceased?” Professor Duflou responded (page 14 of his first report):

   My response to question 1 applies. I emphasise that there appears to be no convincing evidence of the patient having suffered from either extranodal B-cell non-Hodgkin’s lymphoma (or any other form of lymphoma) or tropical sprue, given the lack of clinical diagnosis of either condition based on pathological and other observations and the lack of response to treatment specific for those conditions.

7. In response to the question “Do you consider, on the balance of probabilities, (as distinct from possibilities) that the deceased suffered from tropical sprue?” Professor Duflou answered:

   See my responses to the above questions. In my opinion, on balance of probabilities the deceased did not suffer from tropical sprue.

8. In her closing submissions the Applicant, in relation to Professor Duflou’s conclusion that Mr Carter did not have NHL, says that she is of the same opinion and that she therefore does not intend to rely on NHL to establish a service related death (paragraph 4.18).

9. The Applicant in her thorough and detailed submissions (as was her SFIC) argues that Professor Duflou’s conclusion that Mr Carter did not suffer from, and, by definition, did not die from tropical sprue, is incorrect. The Applicant submits (in her closing submissions):

   ·Professor Duflou is not an expert on tropical sprue (paragraph 4.27);

   ·the diagnosis of tropical sprue was not disproved notwithstanding extensive testing over 4.5 years (paragraph 4.24);

   ·Mr Carter did respond to treatment for tropical sprue (paragraph 6.5);

   ·the Department of Veterans’ Affairs accepted that Mr Carter suffered from tropical sprue (paragraph 6.6);

   ·the presence of villous blunting indicated tropical sprue (part 7);

   ·there is no evidence that undiagnosed cardiomyopathy was the cause of death (part 8);

   ·the evidence suggests that intestinal pseudo obstruction occurred in 2010 as a result of Mr Carter’s treatments and was not the cause of the malabsorption and malnutrition (part 9);

   ·cancers and autoimmune disorders were ruled out as probable causes of Mr Carter’s condition (part 10);

   ·the cause of death as proposed by the Respondent is not clear. Immunodeficiency, which does appear on the death certificate is a sufficiently comprehensive description to cover both malabsorption and malnutrition and that that the cause of those conditions is tropical sprue (part 11); and

   ·the only conclusion that the Tribunal can reach is that Mr Carter’s permanent incapacity was evidenced as a direct result of his gastrointestinal treatments for tropical sprue, that he never fully recovered and was incapacitated from November 2008 until his death in June 2013 (paragraph 12.3).

   STANDARD OF PROOF

10. As noted in [19] above, Note 2 in s 24(1) of the MRC Act specifies that in respect of service death that relates to peacetime service, the applicable standard of proof is that in s 335(3) of the MRC Act which requires the decision-maker to make the decision “to his, her or its reasonable satisfaction”.

11. In the present case Mr Carter’s service was peacetime service as it was not warlike service or non-warlike service as those terms are defined in s 6 of the MRC Act (see [20] above).

12. At paragraph 12.4 of her closing submissions, the Applicant submits that:

    In consideration of MRC Act section 24(1) the decision maker needs to be satisfied, beyond reasonable doubt, that there is no sufficient ground for making the determination of service related death. In this regard the Respondent has not satisfactorily disproven the disease. Their evidence, pointing to cardiomyopathy or pseudo bowel obstruction as alternative hypotheses, has not been substantiated.

13. That submission is based on the standard of proof identified in s 335(1) of the MRC Act. That subsection, however, relates only to warlike service and non-warlike service. It does not relate to peacetime service which is governed by s 335(3) of the MRC Act.

14. It is therefore not incumbent on the Respondent to disprove the cause of death as being tropical sprue or to substantiate an alternative cause of death. As was conceded by the Applicant’s representative at the hearing (Transcript, p 14), the applicable standard is reasonable satisfaction which, in this case, means the Tribunal being reasonably satisfied that Mr Carter’s death was caused by tropical sprue.

15. The term reasonable satisfaction has been considered in the context of s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) which is in very similar terms to s 335(3) of the MRC Act. The most frequently cited case, which also dealt with the standard of proof to be applied by the Tribunal, is Repatriation Commission v Smith (1987) 15 FCR 327 in which Beaumont J (with whom Northrop and Spender JJ agreed) explained the standard of proof as follows (at 334 – 335):

    By contrast, s 120(4) speaks in terms of a reasonable satisfaction. This expression has a settled meaning, at least in a curial context. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J, dealing with the civil standard of persuasion, said (at p 362):

    “...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the  inherent unlikelihood of an occurrence of a given  description, or the gravity of the consequences  flowing from a particular finding are considerations  which must affect the answer to the question whether  the issue has been proved to the reasonable  satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” [Emphasis added.]

    Similarly, in Rejfek v McElroy (1965) 112 CLR 517, the Full High Court spoke of the civil standard of proof (at p 521):

    “No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied...” [Emphasis added.]

    Difficulties have arisen because of the use of different expressions in describing the civil standard but, as the learned authors of Cross on Evidence (3rd ed, 1986) D M Byrne QC and J D Heydon, say of this standard (at p.246):

    “In ordinary civil cases it is usually expressed as involving the ‘preponderance of probability’, the ‘balance of probabilities’, or the ‘preponderance of evidence’. It might be argued that the last of these seems to involve no more than the preponderance of the evidence produced by the proponent of an issue over that produced by its opponent. It is more common, however, to regard all of these terms as synonymous, and as connoting not really relative preponderance over the evidence of the opponent but satisfaction of a prescribed level of probability. The possibility of a contrary finding does not prevent a finding reached on that standard from being appropriate. It is not enough for a plaintiff to fail that his account ‘may not be correct’.”

    The foregoing is, of course, dealing with the standard required in court proceedings where the rules of evidence are applicable. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit (Administrative Appeals Tribunal Act 1975 s 33(1)(c); McDonald v Director-General of Social Security (1984) 1 FCR 354). Yet, whilst the Tribunal was not bound by the technical evidentiary rules, especially the exclusionary rules, natural justice may require that it act on material that is relevant and logically probative (see Mahon v Air New Zealand Ltd [1984] AC 808; Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; 4 ALD 139; E Campbell and L Waller (eds), Well and Truly Tried: Essays on Evidence in Honour of Sir Richard Eggleston (1982) pp 70-71, 86; Cross, op cit, at pp11-13; M Aronson and N Franklin, Review of Administrative Action (1987), pp 95, 174).

    Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. McDonald's case, (supra) dealing with social security legislation is not authority to the contrary. Rather, it is a case of s 120(4) introducing the civil standard for our purposes (see Minister for Health v Thomson (1985) 8 FCR 213 at 223-224; Campbell, op cit at p 53; also see East v Repatriation Commission (1987) 6 AAR 492 per Jenkinson, Neaves and Wilcox JJ at 508-509); cf. under the English legislation, Miller v Minister of Pensions [1947] 2 All ER 372 per Denning J at p 374).

    It follows, in my view, that the Tribunal erred in adopting the Bishop test. Instead, it should have asked itself whether on the facts of the case, it was, persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 4 AAR 344; Re Easton and Repatriation Commission (1987) 6 AAR 558; Re Repatriation Commission and Faulkner (1987) 12 ALD 87.

16. A very thorough and useful analysis of the judicial consideration of the term “reasonable satisfaction” and its application to matters before the Tribunal is set out in the decision of Senior Member Lewis in Murray and Repatriation Commission [1997] AATA 117 at [24]-[54]. At [53] the learned Senior Member summarises the effect of the standard as being “The Tribunal, therefore, is bound to apply the civil standard of proof and will only be satisfied by a probability not a mere possibility.” This Tribunal agrees that that is the appropriate standard.

    Was tropical sprue the cause of Mr Carter’s death?

    The evidence

1. The Tribunal must make its decision on the basis of the evidence. Whether Mr Carter died from tropical sprue or not is, in the end, a medical question. It must be determined on the medical evidence. While the Applicant has in her SFIC and her closing submissions set out in great detail an argument that the cause of Mr Carter’s was tropical sprue, the Tribunal must be guided by the opinions expressed by the medical experts.

2. The salient parts of the opinions of Professor Cade and Professor Duflou, the only two medical experts to specifically express opinions on the cause of Mr Carter’s death, are set out above (see [36]-[49]).

   Applying the standard of proof to the evidence

3. The relevant standard is the civil standard of reasonable satisfaction (s 335(3) of the MRC Act) as analysed at [52]-[58] above. What then is the evidence that must be assessed on that standard? In broad terms there are three general bodies of evidence being:

   (a)the opinion of Professor Duflou as set out in his first report and his supplementary report;

   (b)the opinion of Professor  Cade set out in his report; and

   (c)the argument put forward by the Applicant in her SFIC and closing submissions.

4. Professor Duflou’s conclusion is unequivocal. Critically, Professor Duflou concluded that:

   In my opinion, on balance of probabilities the deceased did not suffer from tropical sprue. (see [49] above)

   …

   I maintain my opinion that on the balance of probabilities that deceased’s condition, deterioration and death were not the result of tropical sprue (Supplementary report (Exhibit R5) at page 5).

5. On the critical issue of whether tropical sprue was the cause of Mr Carter’s death, Professor Cade said:

   The only contention that comes to mind would be based on accepting (in turn) a diagnosis of tropical sprue, failure to treat this condition (initially), a mistaken diagnosis of NHL of the bowel, an inappropriate course of chemotherapy, chemotherapy-induced immunocompromise, chemotherapy-induced cardiomyopathy and cardiac failure and finally refractory pneumonia. While this may be a reasonable hypothesis to consider, it is hard to see how it might be more likely than not, given the continued diagnostic uncertainties in this case and given the prolonged time-course (of 4.5 yr) of the veteran’s illness.(See [45] above)

6. The Applicant’s argument pointing to the cause of Mr Carter’s death being tropical sprue is summarised in [51] above. The main elements of the argument are that the symptoms that Mr Carter had were consistent with tropical sprue, that the onset of the symptoms coincided with his return from tropical service, that he did, albeit only temporarily, improve when treated for tropical sprue, and that the Respondent has not established any alternative cause of death or that Mr Carter did not die from tropical sprue. The various medical arguments put forward by the Applicant were addressed in Professor Duflou’s supplementary opinion. The argument based on the proposition that the Respondent had  to establish an alternative cause of death or to disprove tropical sprue as a possible cause of death is misconceived for the reasons set out above (see [55] and [56]).

7. The question therefore is whether the Tribunal is reasonably satisfied that the cause of Mr Carter’s death was tropical sprue. Put at its highest, the Applicant has put forward a case that it is a possibility that Mr Carter’s death was caused by tropical sprue. The evidence of the medical experts, however, is, in Professor Duflou’s case, that tropical sprue was not the cause of death and, in the case of Professor Cade, that “it is hard to see how it might be more likely than not” that tropical sprue was the cause of death.

8. On that basis the Tribunal cannot be reasonably satisfied, applying the relevant standard of proof, that on the balance of probabilities, the cause of Mr Carter’s death was tropical sprue.

   Was Mr Carter’s death otherwise a service death?

9. As noted at the outset, although the Applicant in the end limited her claim to arguing that Mr Carter’s death was a service death for the purposes of s 28 of the MRC Act because the cause of death was tropical sprue which had been accepted as a service disease and s 28(1)(e) of the MRC Act would apply, for the sake of completeness the Tribunal should also consider whether the death might by a service death otherwise than by operation of s 28(1)(e) of the MRC Act. As tropical sprue was the only disease accepted as being a service disease under s 27 of the MRC Act then one of the other subsections of s 28(1) of the MRC Act would need to apply.

10. In the Tribunal’s view Mr Carter’s service history and the medical records and expert opinions do not support any other cause of death which might give rise to a liability arising under s 24 of the MRC Act. While there was a range of conditions and possible conditions considered and, in some cases, treated, from the time that Mr Carter became ill in late 2008 until his death in 2013, there is insufficient evidence to establish any of these conditions as having caused his death, nor is there evidence to establish any such condition or conditions being related to his military service for the purposes of subsections (a) to (d) of s 28 of the MRC Act.

11. Accordingly, the Tribunal finds that Mr Carter’s death was not a service death for the purposes of s 24 of the MRC Act.

    DECISION

12. The Tribunal finds that:

    (a)Mr Carter’s death was not caused by tropical sprue and was therefore not a service death for the purposes of s 28(1)(e) of the MRC Act; and

    (b)Mr Carter’s death was not otherwise a service death for the purposes of s 28 of the MRC Act.

13. The Tribunal affirms the decision under review.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

....[sgd]....................................................................

Associate

Dated: 13 June 2018

Date of hearing:	22 November 2017
Applicant:	In person: self-represented
Advocate for the Applicant:	Mr Trevor Robbins
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers