Clapham and Repatriation Commission - [2001] AATA 306

DECISION AND REASONS FOR DECISION [2001] AATA 306

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N2000/192

VETERANS' APPEALS DIVISION          )
           Re      Norma CLAPHAM
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date 12 April 2001
PlaceSydney

Decision The Tribunal affirms the decision of a delegate of the Repatriation Commission dated 16 June 1998 that the death of Hume Clapham was not due to war service.

..............................................
M T Lewis,
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – whether death of veteran was due to war service – veteran died from overwhelming septicaemia – whether a reasonable hypothesis was raised – whether lung condition contributed to death by accelerating death from bowel condition – whether reasonable hypothesis was dispelled beyond reasonable doubt

Veterans' Entitlements Act 1986 ss120(1), !20(3) and 120A

Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Re Etheridge and Repatriation Commission (1998) 51 ALD 175
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriaiton Commission v Stares (1996) 66 FCR 594

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr P D Lynch, Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 16 June 1998 that determined that the death of Hume Clapham ("the Veteran") was not due to his war service. That decision was reviewed by the Veterans' Review Board on 7 December 1999 and affirmed. Norma Clapham ("the Applicant") sought review of the Respondent's decision by this Tribunal on 7 February 2000.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant:

Statement of Norma Clapham dated 23 May 2000 (exhibit A)
Statement of Edward George Clapham dated 15 June 2000 (exhibit B)
Reports of Dr M Geoffrey Miller, consultant physician, dated 12 April 2000 and 20 September 2000 (exhibit C)
Letter from Applicant's solicitor to Respondent dated 31 August 2000 (exhibit D).

The following documents were tendered as evidence on behalf of the Respondent:

Clinical notes of Dr Hal Rikard-Bell (exhibit 1)
Clinical notes of Dr Larry Fingleton (exhibit 2)
Clinical notes from St Vincent's Private Hospital, Bathurst (exhibit 3)
Clinical notes from Westmead Hospital (exhibit 4)
Reports of Professor G D Tracy, surgeon, dated 12 July 2000 and 3 October 2000 (exhibit 5), and 23 October 2000 (exhibit 8)
Clinical notes from Bathurst Base Hospital (exhibit 6)
Smoking questionnaire signed by the Veteran and dated 29 November 1983, and statement in support of claim by Veteran dated 29 November 1983 in respect of "Nervous Depression" (exhibit 7).

The Applicant gave oral evidence at the hearing. Dr Miller gave oral evidence, called by the Applicant, and Professor Tracy was called to give oral evidence by the Respondent.
The Veteran was born on 26 June 1924. He served in the Royal Australian Air Force during World War II, from 8 September 1942 to 2 April 1946, and this constitutes operational service. This matter falls for consideration pursuant to s120(1) and (3), and s120A of the Veterans' Entitlements Act 1986.
The Veteran was involved in a serious motor vehicle accident on 15 August 1997 in Bathurst. He was taken to Bathurst hospital and resuscitated, and then transferred to Westmead Hospital by helicopter. He was discharged from Westmead Hospital on 10 November 1997 and returned to Bathurst Hospital for rehabilitation. He was discharged home on 2 January 1998.
On 20 January 1998 the Veteran was found during a routine visit by an occupational therapist to be extremely ill. He had not taken any fluids or eaten for 24 hours, he had little to eat or drink for the previous three days, he had no bowel movement for the previous four days, he had minimal urinary output, and he was hypotensive, tachycardic, confused and complaining of severe abdominal pain. He was admitted to hospital where "aggressive resuscitation", assessment, and later surgery, was performed by Dr Fingleton. The Veteran's blood pressure when he was moved to the theatre was 80/40, which the Tribunal understands to be the minimum for perfusion of vital organs. A strangulated, gangrenous portion of bowel was found caught in an internal hernia. The bowel had ruptured and produced a gross general peritonitis. The Veteran died on 27 January 1998 from overwhelming septicaemia, without regaining consciousness.
The hypothesis initially provided on behalf of the Applicant was that the Veteran had cardiovascular and respiratory disease as a consequence of his smoking habit that commenced during his operational service, and these conditions contributed to his inability to survive the strangulated bowel and general peritonitis that caused his death. Ultimately the Applicant did not press the issue in respect of ischaemic heart disease, and merely proceeded on the issue of the Veteran's respiratory disease related to his smoking habit that was alleged to be war caused.
It was accepted for the Applicant that the cause of death must be determined on the balance of probabilities: Repatriation Commission v Cooke (1998) 90 FCR 307. However, it was submitted for the Applicant that the conditions that existed in the chain of causation were part of the hypothesis and therefore they were issues to be determined on the reverse criminal standard of proof.
The Veteran had no conditions accepted as being related to his war service. A number of claims had been rejected at various times, including a claim for depressive disorder dated 29 November 1983. He had pulmonary tuberculosis diagnosed and treated in 1974. The parties agreed that the Veteran's pulmonary tuberculosis subsequently became inactive and played no part in his death. The Veteran later developed a longstanding chest problem for which he received recurrent treatment from his local doctor, Dr Rikard-Bell. The Veteran had been hospitalised because of bronchitis and pneumonia. He also suffered from ischaemic heart disease.
evidence
The Applicant provided a written statement dated 23 May 2000 (exhibit A). She noted that she met the Veteran in about 1965 and they married in 1969. They lived on a 500 acre property near Oberon that they sold in 1990 and moved to Bathurst. At that stage the Veteran was aged about 66 years.
The Applicant said that she was advised by the Veteran's brother that the Veteran was a non-smoker prior to enlistment, that he took up smoking while on service, and that when he came home on leave he smoked heavily and continued to smoke heavily thereafter. This evidence was consistent with the written statement of Mr Edward Clapham, the Veteran's older brother (exhibit B). He stated that in April 1946, immediately after the Veteran's discharge from the Army, he smoked approximately a packet of cigarettes per day. Mr Clapham acknowledged that post-service he saw the Veteran only occasionally, but at those times he smoked.
Mr Clapham had not discussed with the Veteran why he started smoking, but he recalled that the Veteran told him that the Borneo campaign was stressful as his unit was bombed on several occasions and that he suffered a burn from one of the bomb blasts. Mr Clapham also noted that cigarettes were readily available during service and that he also started smoking when he was on service.
It was the Applicant's evidence that the Veteran never discussed his service experiences with her, but he would talk with his friends in her presence. She said –
They used to discuss the feeling of lying awake at night in tents on an island near Borneo wondering whether they were going to be the subject of Japanese attack. My husband used to tell his mates that he never knew if he was going to be alive the next day. My husband and his mates would talk about having to bury their mates and loved ones during service.
The Applicant recalled that when she first met the Veteran he carried cigarettes with him, and he smoked heavily. She recalled him saying that he commenced smoking during the war. The Applicant recalled that the Veteran had difficulty sleeping and that he suffered from "extreme nerves" at night that often caused him to get out of bed and walk around the house. He took sleeping tablets and had a cigarette or smoked a pipe in order to get back to sleep.
The Applicant said that the Veteran's pulmonary tuberculosis was diagnosed in the early 1970s. The Applicant recalled that from about the early 1970's, the Veteran demonstrated severe medical symptoms. She observed that soon after tuberculosis was diagnosed he was constantly breathless on exertion. She said he had to rest for 15 to 20 minutes after any physical exertion, including walking. She said that his breathlessness and "blueness" occurred frequently. In the 1980s he was hospitalised because of pneumonia and pleurisy. She said that the Veteran was always "puffing and panting and would often have coughing fits during which he would cough up sputum" after smoking.
Before admission to hospital for treatment of tuberculosis he smoked in excess of two packets of cigarettes a day plus an occasional cigar and pipe. He was hospitalised for about three months and forced to cease smoking while in hospital. On his discharge he resumed smoking, but more heavily, smoking at least three packets of cigarettes per day plus cigars and a pipe. She attributed his smoking to his nervous condition and "hypertension" which the Tribunal interpreted in the context in which it was spoken to mean nervous tension.
The Applicant said that the last time she saw the Veteran smoke was on the morning of his motor vehicle accident in August 1997. She said that over the years he was advised to cease smoking, but "he did not have the will power to do it".
The Applicant noted that the Veteran was treated for "nerves" and "stress" and recalled that he suffered from nervous tension from the time they met. She said he was unable to relax and used cigarettes to calm him. She said that the nervous condition worsened during his life. However, in cross examination she denied that he had any mental problems prior to being diagnosed with tuberculosis but that he had a "breakdown" in late 1980 which she considered resulted from 'flu type symptoms and his "nerve" condition.
The Applicant said that the Veteran consulted his local doctor on many occasions because of chest pain and 'flu-like symptoms including a productive cough. He took antibiotics for his lung condition. She noticed that ever since he was diagnosed with tuberculosis he coughed when he woke during the night, and also during the day. She observed that in the 1980s he coughed up "dirty brown" blood stained mucus when his chest was congested. She also recalled in about 1992 he "collapsed" and was taken to Concord Hospital.
The Applicant said that the Veteran's health deteriorated over time. The main reason for leaving the farm was his severe breathing problems at the time, causing him to be unable to undertake the maintenance required. Over the last ten to twelve years they were on the farm he walked 200m to the shed but no more. She said he became more irritable and could not sleep at night. His eating pattern changed and he lost a considerable amount of weight. He could no longer participate in activities that he once enjoyed, such as attending rural shows, due to his breathlessness and chest pain. He could not assist around the house, and he suffered shortness of breath when he attempted to mow the lawn. Consequently, the Applicant was forced to carry out all the duties on the farm. It was at this time that the Veteran applied for service pension.
The Applicant said that once they moved to town the Veteran did not walk anywhere. He would drive and park close to wherever he had to go. She said he frequently complained of ankle swelling and leg ache after standing and walking.
The Applicant recalled that as the Veteran's condition deteriorated, he became more susceptible to colds and 'flu, and particularly during winter he experienced recurrent bouts of pneumonia and bronchitis which led to pleurisy. He suffered from pneumonia at least three times within the last three years of his life, each requiring hospitalisation. The longest period he spent in hospital was six weeks in St Vincents Hospital in Bathurst in about 1997 for pneumonia. He also developed a subsequent kidney infection at that time. She said the Veteran continued to smoke throughout these illnesses.
The Applicant said that just prior to the motor vehicle accident in August 1997 the Veteran's health "was not 100%". He had pneumonia in May 1997 and he always had a cough. Thereafter, although he was "a little better physically" and did not have a fever, she considered he was "run down".
When the Veteran was eventually discharged from hospital after his motor vehicle accident, the Applicant said he appeared to be very weak, he still had a cough and needed four pillows propped under his head in bed at night in order to assist his breathing. The Veteran did not smoke during his period.
The Applicant said that in January 1998 the Veteran started to "lose consciousness quite a bit. He couldn't remember things and he became quite feverish". She said that he was unable to communicate for two days. His condition worsened overnight and the next morning he was admitted to Bathurst Base Hospital and treated by Dr Fingleton, who advised her that the Veteran had "a one out of twenty" chance for recovery.
medical evidence
As a result of the motor vehicle accident the Veteran's injuries included a contused right lung with possible mediastinal haematoma, and fractures of the 5th to the 9th ribs. He had emergency surgery at Westmead Hospital for a fractured pelvis and tibia. The Veteran was classified as "Anaesthetic status IV", which the Tribunal understands to be a high anaesthetic risk. He was classified "critical" for four days, and then "critical/stable" for a further five days. He was ventilated with oxygen between 100 percent and 50 percent and Positive End Expiratory Pressure to prevent lung collapse and improve lung function, and he had an adrenaline infusion for five days. A tracheotomy was then performed when he appeared to be surviving and he required long term ventilation for his lung contusion and fractured ribs. Some time later he suffered a respiratory arrest when he had a blocked tracheotomy tube, and he returned to the "critical" list for a further three days. He required oxygen therapy until 25 September, a total of 26 days. This appears to have been the turning point in his survival.
Over the following month the Veteran had several set backs, including a deep vein thrombosis, a pressure sore, and several chest infections, one with multi-resistant staphylococcus. During this period he also underwent several orthopaedic surgical procedures and commenced physiotherapy. A total hip replacement was performed on 30 September 1997, and he was transferred to Bathurst Hospital on 10 November 1997 for further rehabilitation.
The clinical records reveal that an X-ray taken of the Veteran's chest on admission to Westmead Hospital showed the left lung was clear (exhibit 4, p400). Rib fractures and diffuse opacification of the right hemithorax was noted, which the Tribunal understands to relate to the Veteran's chest injuries.
Following extensive orthopaedic treatment at Westmead Hospital the Veteran was transferred to the Bathurst Rehabilitation Service on 10 November 1997, where it was noted subsequently that pain over the left ilium was associated with infection extending deeply from the pin site arising from a total hip replacement. He was referred to Dr Fingleton to explore the problem surgically. Dr Fingleton reported on 25 November 1997 (exhibit 2, p9) –
There was evidence of osteomyelitis extending down two of the pin tracks of the ileum and there was associated infection of the bone over the iliac crest between these two. An abscess had tracked down under the periosteum between the bone and gluteal muscles and that was debrided and laid open.
There was a fair bit of bleeding at the end of this so the wound was packed and I think he is going to need a general anaesthetic in 48 hours time to remove the pack and commence more friendly dressings ….
Dr Fingleton was also the Veteran's treating surgeon during the time of his terminal illness. He reported to the Veteran's local doctor following the surgery on 20 January 1998 (exhibit 2, p14), viz. –
He was quite septic on admission and complaining of severe abdominal pain and, in fact, needed fairly aggressive resuscitation with blood transfusion and colloids and he appeared to be in septicaemic shock. With evidence of peritonitis I was worried about gangrenous bowel and, following resuscitation, I carried out a laparotomy.
He had gross generalised peritonitis with pus throughout the entire peritoneal cavity and evidence of a distal small bowel obstruction. On following the small bowel down to the point of obstruction, there was an internal hernia through a 3cm defect in the transverse mesocolon. The distal small bowel was caught in this hernia and gangrenous and had ruptured and he was pouring small bowel contents into the abdominal cavity.
… he had quite a chronic hard abscess in the pelvis which seemed out of proportion to his present problem and one would have to postulate a second pathology there and whether this was related to his extensive diverticular disease or whether it could even be possibly be (sic) related to his osteomyelitis was difficult to say. The abscess was drained and quite a large amount of pus removed, but it could not be extensively laid open without risking perforation to his sigmoid colon. The sigmoid colon was full of soft faeces and had gross peritonitis secondary to the ruptured small bowel.
He is going to be in for a stormy time and, in fact, Stephen elected to keep him intubated up in ICU post-operatively and I have inserted a Marlex mesh into the wound to allow re-laparotomies for peritoneal toilet in the days ahead. I think we should plan to re-open him on the 22.1.98 and carry out a thorough peritoneal toilet again….
I have warned the family that his chance of survival is about 1:5 and his nutritional status at this stage is a disaster and will need reviewing if he survives the next few days.
Dr Fingleton provided a further report dated 24 August 1999 (T27) for the purpose of the Applicant's claim for war widow's pension, in which he said –
…His death some days later was due to overwhelming sepsis resulting in multi organ failure and his atherosclerosis certainly would have been a contributing factor there and his pulmonary complications also would have been exacerbated by his smoking habit.
Dr Fingleton's clinical notes (exhibit 2) referred to the fact that in 1992 the Veteran continued to smoke "although he is not a heavy smoker", and that he had peripheral cyanosis that was either respiratory or vasospasm. However there was no record of investigations to clarify the diagnosis of the peripheral cyanosis.
The Veteran's local medical officer, Dr Rikard-Bell, reported on 22 January 1999 (T.docs, p108) viz. –
I have been approached by Mr Clapham's wife to discuss the issues of his health and how this impacted on his subsequent demise.
His long standing complications were that he had atherosclerosis secondary to cigarette smoking and decreased respiratory function also because of cigarette smoking. These both negatively impacted on his surgical outcome and as you know he had a considerable amount of surgery as a result of his motor vehicle accident.
There is no doubt the effects of his cigarette smoking on his lung function and vascular function had a negative part to play in his recovery following his motor vehicle accident.
Over the years his other problems included gastric problems for which he had multiple investigations, all of which come back showing only wide spread gastritis.
He had other problems including diverticular disease for which he had several investigations and a barium enema. This confirmed his diverticular disease and lead to him having medication and anti-inflammatory medication as well. This was complicated by his personality, which lead to interesting interactions with his medical advisers.
He was a character and his medical problems were certainly amplified under the stress of the major trauma of his accident.

From his clinical notes over the period 1974 to the time of the Veteran's death (exhibit 1) Dr Rikard-Bell noted a number of cardio-respiratory incidents that required medical treatment. There is no reference anywhere in Dr Rikard-Bell's clinical notes of the Veteran's smoking habit.
The clinical notes show that the Veteran attended with a chest infection on 28 April 1997, for which he was prescribed medication. Dr Rikard-Bell then made a house call on 5 May 1997 because the Veteran was concerned that his chest infection was not resolving and he complained of having a productive cough with thick brown blood-tinged sputum. The Veteran's shortness of breath was not significantly worse. Dr Rikard-Bell diagnosed severe bronchitis and "± mild pneumonia". Although admission to hospital was planned if the Veteran deteriorated, his condition improved at home with treatment and on 27 May 1997 the Veteran reported that he was "pretty good". The last reference in the clinical notes to the Veteran's chest prior to the motor vehicle accident was on 18 June 1997, that he had basal creps in the right lower lobe.
In respect of the Veteran's bowel condition, the Tribunal notes from Dr Rikard-Bell's clinical notes that a Barium Enema in April 1997 showed diverticulosis.
Dr Rikard-Bell noted in a report dated 8 August 1997 (T12) –
Mr Clapham has multi organ disease, mostly a degenerative type, with infection occasionally superceding it. Of recent times he has had significant pneumonia with some consolidation in both lower zones of the left and right lungs.
A report of Dr Dutton, physician, dated 27 March 1992, is contained in Dr Fingleton's clinical notes (exhibit 2, p13). Dr Dutton apparently was consulted because of pain that the Veteran was experiencing, that was thought to be gastrointestinal rather than cardiac. He noted that he had seen the Veteran in September 1991 in St Vincents Hospital, Bathurst, with a one week history of 'flu like illness with pyrexia, upper respiratory symptoms and myalgia.This was followed by increasing shortness of breath and radiological changes of heart failure that were presumed to be secondary to viral myocarditis. He noted that the cardiograph was normal and that any chest pains at that time were probably pleurocarditic. Dr Dutton added "He checks out very well on full clinical examination".
Clinical notes from St Vincent's Hospital, Bathurst (exhibit 3), cover the period from 1974 to the time of the Veteran's death. The only reference relevant to the Veteran's chest condition was an admission to hospital from 6 to 24 September 1991, when he was suffering from 'flu, pneumonia and congestive cardiac failure. His chest was clear by 16 September. His condition improved with treatment. He was extensively investigated and ultimately a viral non-cardiac cause was considered likely.
During an admission to St Vincent's Hospital in December 1992 because of a psychiatric condition the Veteran was observed "smoking on balcony" (exhibit 3, p67). The Tribunal accepts this as corroborative evidence of a continued smoking habit despite the absence of any reference in Dr Rikard-Bell's notes to the Veteran smoking.
A discharge summary from Concord Hospital dated 23 March 1993 (exhibit 3, p52) because of a psychiatric condition, showed that the Veteran was also suffering from emphysema. Dyspnoea was noted, related to his emphysema, that was considered by a physician to be secondary to smoking and possible cardiomyopathy, in light of an increase in his heart size since 1985.
The only other admission to St Vincent's Hospital of relevance was from 12 December 1997 to 2 January 1998 when the Veteran was admitted for rehabilitation following his motor vehicle accident. Because of pain he was uncooperative with rehabilitation. During this period he developed overt osteomyelitis requiring extensive debridement by Dr Fingleton, that was complicated by poor haemostasis that necessitated control by packing. The packing had to be removed under general anaesthetic two days later.
Dr Miller, consultant physician, provided two reports and gave oral evidence at the hearing. In his report dated 12 April 2000 (exhibit C) he stated:
I consider, as a reasonable hypothesis that his immunity to infection was gravely impaired by his chest infection, his heart failure and the debility associated with these conditions. He was an appalling operative risk because of these pre-existing conditions, but it is possible that he could have survived the surgery for peritonitis and bowel resection if he did not have a chest infection and cardiac failure immediately prior to his surgery.

Dr Miller perused the voluminous documents before the Tribunal and interviewed the Applicant. He was given a history from the Applicant that the Veteran had been diagnosed as suffering from bronchitis and emphysema since 1970 or 1980 and he had been hospitalised for pneumonia for periods over the three years before his death. The Applicant, in her claim for war widow's pension (T13) said the Veteran suffered from "chronic respiratory obstruction for years since early in the seventies when he got TB". Dr Miller also had access to Dr Rikard-Bell's report (T12) that noted "significant pneumonia with some consolidation in both lower zones of the left and right lungs". He also had access to a series of X-ray reports [in Dr Rickard-Bell's notes (exhibit 1)] showing "bilateral emphysema" on 10 October 1991, "bilateral upper lobe bullae consistent with emphysema" in May 1993 and again in May 1997. The Veteran suffered incidents of bronchitis on 16 October 1985 and 30 October 1985. The Westmead Hospital notes following his motor vehicle accident recorded "past historical CAL (chronic airways limitation) ? 10 yrs history of smoking". At autopsy "large dilated spaces lined by bronchial epithelium" were reported.

Dr Miller was also of the opinion that the Veteran had significant atherosclerosis based on the autopsy findings where it was reported –
The coronary arteries showed moderate atheroma with a 40% narrowing of the left anterior descending artery, 30% narrowing of the circumflex branch of the left coronary artery and 20% of the right coronary artery.

Dr Miller considered that the post-mortem findings were likely to be less than shown by coronary angiogram, and used that opinion to attempt to refute Professor Tracy's opinion that the post-mortem showed only mild atheroma producing no more than 40% narrowing. Dr Miller considered the Applicant's report that the Veteran had a fat base of spine immediately prior to his final admission to be significant. The Tribunal notes that this indicates some postural oedema due to reduced cardiac function.

Dr Miller noted that Dr Fingleton doubted the presence of ischaemic heart disease, which Dr Miller did not consider to be correct, and in so doing he referred to Dr Rikard-Bell's reference on 11 January 1986 to intermittent chest pain associated with shortness of breath.
Dr Miller agreed with Professor Tracy that the Veteran was in a very parlous condition, and in his oral evidence he said –
Nowhere in page 5 of my first report is the statement that Mr Clapham's pre-existing illnesses were significantly responsible for his death….
What I actually stated was that -
"the acute abdominal emergency leading to the overwhelming sepsis occurred in a seriously ill man who was already suffering, as a reasonable hypothesis, from congestive cardiac failure and an acute on chronic chest infection, superimposed on emphysema".
Professor Tracy, general surgeon, provided a medico-report dated 12 July 2000 (exhibit 5) at the request of the Respondent, which stated, in part –
On 20 January 1998 he was admitted urgently to Bathurst Hospital with peritonitis. At that stage his blood pressure was very low and he was unconscious. Laparotomy revealed a strangulating small bowel obstruction with necrosis of the small bowel trapped in an internal hernia, with extensive peritonitis and intraperitoneal abscess. Despite three reoperations for lavage and a tracheostomy for insertion of a tube to assist his ventilation, he failed to recover consciousness and died on 27 January 1998.
At autopsy it was obvious that he had died from peritonitis, described as "complications of bowel ischaemia". The term "bowel ischaemia" in my opinion is inappropriate here, as it suggests that the problem was one of arterial insufficiency. However, in this case this was a strangulating bowel obstruction, obvious from the operation notes, with gangrene of a portion of the small intestine caused by strangulation. It was inappropriate to label this "ischaemia". The appearance of well established peritonitis shows that the diagnosis was made late and he was already moribund. With or without any pre-existing or associated diseases, this is a lethal condition with a high mortality.
The autopsy findings [were] of mild atheroma in his coronary arteries, … . It was particularly noted that there was no narrowing of the main arteries to his intestine, so that there was no suggestion that intestinal ischaemia was a relevant factor. The findings in his lungs of interstitial oedema and congestion would be typical of the pulmonary findings in someone dying from peritonitis with Gram-negative shock. There was no report of emphysema.
…
2.I do not agree with Dr Miller's notes on page 5 of his report which contended that his pre-existing serious illnesses were significantly responsible for his death. The degree of pulmonary and myocardial impairment present before his fatal illness had not led to prior treatment, and I have already given my opinion that his death from peritonitis with septicaemic shock – demonstrated by an arterial blood pressure as low as 45 – would have been lethal at any age.
3.Mr Clapham had recovered from massive trunk and limb injuries sustained in his motor vehicle accident in 1997, which would have been unlikely to have caused him to be "an appalling operative risk in view of chest infection, heart failure, and associated debility". This injury certainly would have led to his ongoing health problems with chronic osteomyelitis, but his final illness episode was a strangulating small bowel obstruction with gangrene of the small bowel and perforation, which would have had no relationship to any pre-existing illnesses nor to his motor vehicle accident.
4.I do not agree with Dr Miller's contention that "he could have survived the surgery for peritonitis and bowel resection if he did not have a chest infection and cardiac failure immediately prior to his surgery". I have already given my detailed reasons why I disagree with this comment.
…
7.I do not consider the late Mr Clapham suffered from emphysema or the conditions mentioned by Dr Miller as there was no sign at autopsy of cardiac hypertrophy, congestive heart failure, nor recent myocardial ischaemia.
The laparotomy to which Professor Tracy referred (supra) was performed by Dr Fingleton and reported as follows (exhibit 6, p190) –
Midline incision. Visible pus & faecal material from 10 cm segment infarcted and ruptured small bowel caught in internal hernia. Infarcted section of small bowel resected and anastamosed. Hernial defect closed. …
The pathology report of the bowel specimen taken on 20 January 1998 (T. docs, p64) showed inflammation in the surgical margins of the specimen and tissue was viable. The pathology report of the bowel specimen taken at the time of further surgery on 24 January 1998 (T.docs, p65) showed partial thickness necrosis. The operation report on 24 January 1998 noted (exhibit 6, p206) -
10cm segment of mid-jejunum necrotic (transmural) – evidence of extensive mucosal necrosis of the entire small bowel.
Professor Tracy agreed with Dr Fingleton regarding the cause of the Veteran's death from "peritonitis with septicaemic shock – demonstrated by a preoperative arterial pressure as low as 45". However he disagreed with Dr Fingleton's optimism regarding possible survival, and opined that the degree of septicaemic hypotension recorded preoperatively "would have been lethal at any age". In his oral evidence Professor Tracy put the mortality rate once septicaemia had developed preoperatively sufficient to produce a severe hypotension, at 95%, with a statistical significance level of greater than 5%. Hence, he considered that the 5 percent difference was not of any significance. He explained that the Veteran's condition was irretrievable regardless of his lung condition, after six hours following the development of perforation. He estimated that perforation occurred at about the time the Veteran arrived at the hospital. Professor Tracy made this estimate after it was put to him that the Veteran's blood pressure responded to fluid replacement by the ambulance attendant, suggesting simple dehydration.
Although Professor Tracy initially found no evidence that the Veteran suffered from emphysema he later acknowledged that there was evidence in the documentation of emphysema of "moderate severity". He was adamant that the post-mortem pathology did not indicate significant atherosclerosis. He opined that if the pathologist considered it significant it would have been derelict not to mention it. Moreover, he considered that narrowing of the coronary artery would need to have been at least 50% before coronary artery surgery would be considered and 75% narrowing was usual before symptomatic significance was reached.
Professor Tracy was not impressed with the interventricular septal infarct hypothesis. He said there was very little damage to the heart, that was "being driven" by a blood pressure of 80/40. Additionally, the microscopic report on the pale superficial area of fibrosis was evidence of old ischaemia. Professor Tracy considered that the final state of the heart, as observed at autopsy, reflected the terminal event following septicaemic hypotension.
Professor Tracy considered that a motor vehicle accident of the nature and severity experienced by the Veteran might well have proved fatal for any person suffering from severe pre-existing cardio-respiratory disease. Professor Tracy noted that there was no medical evidence that the Veteran suffered from ongoing respiratory problems but he did have recurrent infections that responded to treatment. He doubted that the Veteran's smoking-induced moderate emphysema was significant.
After reviewing the Westmead Hospital notes relating to the Veteran's acute treatment following the motor vehicle accident, Professor Tracy said –
It could be said … his intrinsic respiratory capacity must have been relatively robust to survive this injury.

He also said that the Veteran's ability to survive for five days (with intensive care support) during his final illness "indicate(s) surprisingly good myocardial reserve".
submissions

In the course of final submissions the Tribunal was advised by Counsel for the Applicant that their case would not rely on the Veteran's ischaemic heart disease. In light of the evidence the Tribunal considers this concession to be properly made.
It was submitted for the Applicant that there are two parallel hypotheses; – firstly, the contribution of the lung condition to the Veteran's death, and secondly, that the lung condition accelerated the Veteran's death or reduced the possibility of survival from the bowel condition. It was submitted that all the links in the chain of causation of the Veteran's death are to be determined at the reasonable hypothesis standard, which includes the lung and heart conditions as links in the chain of causation. The Applicant sought to rely on Instrument No.73 of 1997 in respect Chronic Bronchitis and Emphysema.
It was submitted for the Applicant that on the evidence a clear and extensive war-caused smoking history is established. Additionally, there is abundant evidence that the Veteran had severe and long-standing lung problems, necessitating recurrent hospitalisation because of pneumonia that on one occasion was for a period of three months in about May 1997. It was the Applicant's evidence that the Veteran had not fully recovered from that by the time of the motor vehicle accident. That he had a chronic lung condition was also supported by the Applicant's evidence that the Veteran coughed up brown sputum that was occasionally blood stained. It was submitted that this evidence goes to both the existence of a lung problem and its severity.
The Applicant submitted that, on the evidence of Dr Miller, there is a reasonable hypothesis that the Veteran's immunity to infection was gravely impaired by his chest infection and he was an "appalling operative risk" because of this. It was Dr Miller's opinion that the Veteran could have survived the surgery for peritonitis and bowel resection if he did not have the chest infection and cardiac failure immediately prior to his surgery. It was submitted that Dr Fingleton agreed with Dr Miller that it was possible that the Veteran could have survived the bowel operation. Dr Fingleton put the odds at one in five, and clearly he considered it was worth performing the surgery.
It was submitted that Dr Fingleton (T27, p 105) also supported the hypothesis before the Tribunal when he said in respect of the Veteran:
His death some days later was due to overwhelming sepsis resulting in multi organ failure and his atherosclerosis certainly would have been a contributing factor there and his pulmonary complications also would have been exacerbated by his smoking habit.
It was submitted for the Applicant that the only doubt in relation to the hypothesis is provided by Professor Tracey who said that the Veteran's chance of survival was very slim, and that the risk of death, depending on the health of the patient, was between 95 and 100 percent. Professor Tracey considered that a person suffering from lung problems such that it caused shortness of breath when lying in bed, would have about a 100 percent failure rate from the operation, while someone who was otherwise fit and healthy would have a 95 percent failure rate. The Applicant noted that Professor Tracey did not see any significant difference between 95 and 100 percent, and was quite clearly talking in a statistical scientific sense. The Applicant submitted that this is not the test that the Tribunal should apply and that a person who presented with a five percent survival risk, would be in a better position than one with a one percent survival risk. The Applicant submitted that the differences are not de minimus and that Professor Tracey's view is to be discounted in that he has reduced something of value to a scientific statistic. Even Professor Tracey's oral evidence that the Veteran suffered total organ failure that could not sustain life was capable of pointing to the hypothesis raised.
It was submitted that therefore a reasonable hypothesis had been raised in relation to the lung condition playing a role in the Veteran's death. The Applicant noted the Veteran's survival for seven days, a factor that surprised Professor Tracey, who presumably expected an earlier date of death in the circumstances. It was submitted that this, too, shows the reasonableness of the hypothesis that the Veteran might otherwise have survived the operation except for his lung condition. The Applicant submitted that considering the evidence of Dr Miller, Dr Fingleton and even Professor Tracey, a reasonable hypothesis had been raised.

It was submitted for the Applicant that it was not inevitable that the Veteran's bowel condition was a lethal condition and that therefore all that could be argued for the Applicant was acceleration of death. Dr Fingleton's very optimistic view about the chances of survival had to be acknowledged. While it is not known whether Dr Fingleton was making a relative and mollifying allowance to give hope, his expression is recorded as one in five that clearly, in a statistical sense, is a significant chance of success.

It was submitted for the Applicant that very little could be raised on the side of disproof of the hypothesis. Dr Miller's view had not changed, the view of the treating surgeon had not been discounted in any way, and even Professor Tracey's view is capable of supporting the reasonable hypothesis test in s120(3) of the Act and it does not disprove the hypothesis. The concessions made by Professor Tracey were the only concessions that the Applicant required – it does not matter that Professor Tracey considered that the Veteran's chances of survival were slim.
Turning to acceleration, the Applicant submitted that Professor Tracey's acknowledgment as to when the Veteran was expected to die from septicemia undercut the potential for his view to disprove the reasonableness of the hypothesis. Further, while Professor Tracey stated that in a "significant sense" there were no prospects of survival, he acknowledged that there was some point in performing the operation and it was not an operation that should not have been performed. This too, the Applicant submitted, renders Professor Tracey's opinion incapable of disproving the hypothesis.
The Applicant submitted that those few days of survival are days that the Tribunal can take into consideration in determining the question of acceleration of death. Even the hastening of death by one day in the course of an illness or disease that would eventually cause death, would, in the appropriate circumstances, ground a finding of a material contribution in respect of that illness or disease. Counsel for the Applicant cited the decision of the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 as authority for the submission that a "significant contribution" is not required, as long as the contribution is more than de minimus.
It was submitted for the Respondent that the Tribunal should look globally at all the evidence before it. Although the Respondent acknowledged that the Veteran suffered from a lung condition, nevertheless he survived a serious motor vehicle accident despite the development of complications. He later developed peritonitis and bowel strangulation. The Tribunal should note the evidence of Dr Miller that this latter condition has killed a lot of younger, fitter people, and he was amazed that the Veteran survived as he did.
It was submitted for the Respondent that although the Veteran died of multi-organ failure it is quite artificial to focus on his lungs and use this to argue a link with his death. The Veteran's death was clearly precipitated by the overwhelming sepsis. To this extent, Professor Tracey agrees with Dr Fingleton.
The Respondent also submitted that the Applicant's evidence that the Veteran never recovered from his mid-winter chest problems was not supported by the medical records of Dr Rikard-Bell. These records suggest that the Veteran was improving well before the accident.
It was submitted that Professor Tracey addressed the respiratory failure that occurred on 28 August 1997 in Westmead Hospital. The respiratory failure was the result of the major accident where the Veteran suffered injuries to his chest, fractured ribs on the right side and associated problems, as well as orthopaedic injuries.
It was submitted for the Respondent that the cause of death was obvious from the records and the post mortem. Dr Fong, who performed the post mortem, was in no doubt that the bowel condition caused the Veteran's death and that there was no real contribution from the lungs. In reply, it was submitted for the Applicant that this was an overstatement. Dr Fong in the pathology summary lists all the conditions that appeared to be present, one of which was bilateral pneumonia (T27, p116). It was submitted for the Applicant that that condition was significant by virtue of being included in the report.
It was submitted for the Respondent that on the totality of the evidence a reasonable hypothesis has not been raised that chronic airflow limitation contributed to the Veteran's death. Further, it was submitted that the case law requires that there be a "material contribution" to death. It was submitted that the evidence in relation to the lung condition did not meet the criteria. At most, there is a "mere possibility", and relying on the decision of the Full Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 that is not enough to satisfy the criteria. It was submitted for the Applicant in reply that Bey is to be distinguished from the present case because in that case the Court held that it could not be said that an hypothesis was raised on the facts because the condition, in that case, had no known aetiology. This is quite different from the present case.
the case law
There is no Statement of Principles for death from peritonitis and septicaemia. The Tribunal notes that this matter is on all fours with the decision of the then President of the Tribunal Re Etheridge and Repatriation Commission (1998) 51 ALD 175 on this issue. Matthews J held Re Etheridge that if there is no Statement of Principles in relation to the proximate cause of death, then the decision-maker has no choice but to turn to s120(3) and determine whether the material before it raises a reasonable hypothesis connecting the death with the Veteran's war service. If there was a Statement of Principles in relation to an intermediate causative condition then it could be used to support an hypothesis connecting that condition with the Veteran's war service. However, if the Statement of Principles did not support the proposed hypothesis it would not be fatal to the case if the hypothesis was otherwise reasonable. The Tribunal will follow the decision Re Etheridge and in so doing interprets the submission for the Applicant that she sought to rely on the Statement of Principles Instrument No.73 of 1997 in respect of Chronic Bronchitis and Emphysema, as indicating that this is being sought voluntarily only because it is perceived to support the Applicant.
In considering whether an hypothesis is reasonable, the Full Federal Court in East v Repatriation Commission (1987) 16 FCR 517 (at 533) said –
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.

The High Court said in Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571) –

The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not an issue at this point.

In Byrnes the Court also stated (at 569) –

In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That in itself does not make the hypothesis unreasonable.

The Full Federal Court in Repatriation Commission v Stares (1996) 66 FCR 594 (at 601) said in respect of the High Court decision in Byrnes -

By their saying that 'the material must point to some fact or facts' their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion.
...Nor do we understand the High Court in Byrnes' case to say that an assumption is only permissible at the stage of determining whether or not an hypothesis is reasonable and we see no good reason why the permissible use of an assumption should be confined to that stage in the process.
The question s120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran's injury with war service: see Byrnes' case at 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.
In the present case the learned primary judge did not hold that a reasonable hypothesis for the purposes of s120(3) may be raised by an assumed fact in isolation. The assumed fact was to be considered by the decision-maker in the light of all the other material. Much of that other material bore directly upon the hypothesis.

In Repatriation Commission v Bey (1997) 149 ALR 721 (at 724-5) Northrop ACJ, Sundberg, Marshall and Merkel JJ set out the method of applying s120(1) and (3), viz –
(1)       One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
(2)       The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the "raised facts") and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.
(3)       Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
(4)       If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

consideration of the evidence and findings of fact
Subsection 120(3)

The hypothesis raised for the Applicant is that the Veteran developed a smoking habit on service because of his conditions of service and he continued to smoke until the time of his motor vehicle accident on 15 August 1997. Because of his smoking he developed chronic bronchitis and emphysema, and for some months prior to his accident he suffered from pneumonia from which he had not fully recovered. At this point, two parallel hypotheses are raised; firstly, that the Veteran's chronic lung condition contributed to his death, and secondly that it accelerated his death or reduced the possibility of survival from the bowel condition that developed in January 1998. The first task for the Tribunal is to consider, pursuant to s120(3) of the Act, whether either of these hypotheses are reasonable.
On the evidence the Tribunal accepts that there is a reasonable hypothesis that the Veteran developed a war-caused smoking habit and that he continued that habit until the time of the motor vehicle accident. The Tribunal also accepts that there is a reasonable hypothesis that the Veteran suffered from moderate emphysema arising from his smoking habit. It seems that at the conclusion of the evidence these parts of the hypothesis were not in contention.
The Tribunal notes that the Veteran survived the accident despite the Applicant's evidence that the Veteran was a very heavy smoker up to the time of his motor vehicle accident. He also survived despite her evidence that at the time of the accident he had not properly recovered from a bout of pneumonia he suffered in May 1997. His injuries from the accident included a contused right lung with possible mediastinal haematoma and fractures of the 5th to 9th ribs. He had fractures of the pelvis and tibia requiring pins and external traction. He had immediate emergency surgery despite being assessed as status IV anaesthetic risk (status V being the highest anaesthetic risk). His condition was critical for some 9 days. During that time he received intensive treatment to prevent lung collapse and improve lung function. He had a tracheotomy performed when it appeared that he was going to survive as he required long-term ventilation for his lung contusion and fractured ribs. He suffered a respiratory arrest when his tracheotomy tube became blocked, and he was again classified as being in a critical condition for three days following that event. Thereafter, over the next month, he had a deep vein thrombosis, a pressure sore and several chest infections, one of which involving multi-resistant staphylococcus. During this period he also underwent several orthopaedic procedures including a right total hip replacement. Apart from the evidence of the injury to the Veteran's lung and ribs, the chest X-ray taken immediately after his admission to hospital following the accident was reported to be clear.
On this evidence the Tribunal finds that the Veteran demonstrated an astounding survival capacity despite the high odds against his survival at so many points in the four months following his accident. The fact that he survived despite the injuries to his lung, his subsequent respiratory arrest and the staphylococcal infection, is strong evidence that any underlying chronic airways disease did not impede that survival. There was no evidence that he had any acute lung condition when he eventually returned home from hospital early in January 1998, nor is there any evidence of the development of any lung problem after his discharge. This entire scenario is one that needs to be taken into account in considering the reasonableness of the hypothesis raised. Even Dr Miller, who supports the hypothesis for the Applicant, was "amazed" that the Veteran survived as he did.
The Tribunal is being asked to find that it is a reasonable hypothesis that the Veteran's chronic airways disease contributed to his death from peritonitis and septicaemia, or that it accelerated his death from those conditions. However he had survived such a litany of medical events, many of which had directly impacted on his respiratory capacity, including the lung and rib injury, respiratory arrest and staphylococcal infection.
The Tribunal notes that Dr Miller's hypothesis relies on the evidence of the Applicant that the Veteran suffered from a chest infection for the three months immediately prior to the motor vehicle accident. That is not consistent with the evidence in Dr Rikard-Bell's clinical notes. Although the Applicant referred to brown blood-stained sputum, it appears from the clinical notes that this was a problem for the Veteran only when he had an acute infection, and his last acute infection resolved some three months before his motor vehicle accident. Hence, the hypothesis built on Dr Miller's evidence, is weakened significantly. Although the Veteran continued to suffer from emphysema, that condition was not exacerbated by smoking after the accident, as he ceased smoking at the time of the accident.
The Veteran was admitted to hospital on 20 January 1998 suffering from peritonitis, he was in septicaemic shock and he needed to be resuscitated. His blood pressure when he was moved to theatre was 80/40, which the Tribunal understands to be the minimum for perfusion of vital organs. Part of his small bowel had been caught in an internal defect in the transverse mesocolon. It was gangrenous, it had ruptured and was pouring small bowel contents into the abdominal cavity. There was also a chronic hard abscess in the pelvis that was drained of pus and packed. This required peritoneal lavage under general anaesthetic two days later. The abscess appeared to be unrelated to the peritonitis, but it could have been related to the osteomyelitis that had developed following his total hip replacement. The Veteran died on 27 January 1998 from overwhelming septicaemia, without regaining consciousness.
The Tribunal notes that the autopsy report simply identifies the cause of death as "complication of small bowel ischaemia". No antecedent causes were stated. Professor Tracy criticised the wording of the pathology report using the term "bowel ischaemia" because it suggested a primary vascular event rather than the mechanical trapping of the bowel.
The reliance on "bilateral pneumonia" being a cause of death, as submitted for the Applicant, on the basis that it was "included in the autopsy report", appears to misinterpret that part of the report. That condition is merely listed, amongst other conditions, under a heading "Pathology Summary". It is no more than that - a summary of the areas of pathology found in various anatomical areas at autopsy. There is no justification for interpreting that the condition of "bilateral pneumonia" was a cause of death or contributed to death. It was merely present at the time of death. The cause of death was stated as "Complications of small bowel ischaemia". There was noting identified as an "antecedent cause" or as an "other significant condition contributing to the death but not relating to the disease or condition causing it". The Tribunal rejects the submission for the Applicant that bilateral pneumonia "is significant by virtue of being included in the report".
The estimate of Dr Fingleton that the Veteran had a 1in 5 chance of survival of the peritonitis and septicaemia, and the estimate of Professor Tracey that it was a 1in 20 chance of survival, are accepted by the Tribunal on its face. Nevertheless the Tribunal notes the Applicant's evidence that Dr Fingleton told her that the Veteran had a 1 in 20 chance of survival. Both are relevant specialists. However, it is logically fallacious to argue on that basis, that the Veteran's slim chance of survival, whether it be a 20 percent chance or a 5 percent chance, has been negatively affected, albeit in a very minimal way, by his chronic respiratory disease when it did not affect his ultimate recovery from the severe injuries he sustained a few months previously. The pathology reports arising from the surgery performed on the Veteran in the last few days of his life confirm that during his post-operative period (that is, after the first operation) the Veteran continued to absorb bacteria from pus issuing from the incompletely drained pelvic abscess and cellular toxins and bacteria from necrotic bowel. The Tribunal finds that the massive contamination of the peritoneal cavity described by Dr Fingleton clearly indicates the process of septicaemia progressing to multi-organ failure that was well established at the time of the initial operation and was irreversible.
In this context, the Tribunal considers that any impairment of the Veteran's respiratory functioning because of his underlying chronic respiratory disease during the time of his terminal illness was de minimus. Contribution is a relative concept. The Tribunal must consider the contribution of the Veteran's underlying lung condition in the context of all other factors that were implicated in his death. It was akin to a bath tub of water being tipped into the river. While one could drown in a bath tub or in a river, the Veteran, metaphorically, was in the river, and the fact that an extra bath tub of water had been tipped in was so insignificant as to be de minimus. It had no material effect on the metaphorical drowning.
The Tribunal notes the evidence of Dr Miller that he considered the hypothesis raised to be a reasonable hypothesis. With respect, that is a decision to be made by the Tribunal and not by an expert witness. The difficulty with Dr Miller's evidence is that he has strayed from his role as an expert medical witness. When he stated, as he did in effect, that it was a reasonable hypothesis that the acute abdominal emergency leading to the overwhelming sepsis occurred in a seriously ill man who was already suffering from an acute on chronic chest infection superimposed on emphysema, it stands more as an assertion than as an hypothesis supported by the scientific facts.

The Tribunal accepts the submission for the Respondent that it should look globally at all the evidence before it. Applying the decision of the Full Federal Court in Bey (supra) consideration of whether an hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. On consideration of the whole of the material, as we have in the abovementioned analysis, the Tribunal finds that the hypothesis is fanciful and untenable. Therefore, pursuant to s120(3) of the Act a reasonable hypothesis has not been raised.
Subsection 120(1)
If the Tribunal is in error in determining that no reasonable hypothesis has been raised, and if indeed the hypothesis, which has been supported by Dr Miller, is a reasonable hypothesis despite the holistic scenario depicted above, then it is prudent for the Tribunal to consider whether such a reasonable hypothesis has been dispelled beyond reasonable doubt.
Issues of credibility are to be considered under s120(1) of the Act. The Tribunal has some concern about the Applicant's evidence. It was focussed essentially on the Veteran's smoking and cardio-respiratory problems, to the apparent exclusion of his major psychiatric problems and the effect on their marital relationship. Her evidence was that he was admitted to Concord Hospital in 1993 because of emphysema and cardiomegaly, whereas the clinical records from Concord Hospital indicate that the primary problem was the Veteran's mental state functioning. While in hospital some attention was given to the Veteran's cardiac functioning and dyspnoea, and it was noted that the dyspnoea was related to emphysema secondary to smoking and possible cardiomyopathy. The Tribunal concludes from the clinical records, however, that the reason for hospitalisation, first at Bathurst Hospital and then by transfer to Concord Hospital, was because of the Veteran's mental state. The Tribunal finds that the Applicant's evidence has been skewed in such a way as to assist her case.
There are numerous references in the documentary evidence before the Tribunal that when the Veteran was in various hospitals the staff found him to be aggressive, uncooperative and abusive. The Tribunal notes from the Westmead Hospital clinical notes (exhibit 4 p2) that the Veteran's marital status was listed as "separated" and his son was his next of kin. In a subsequent social work report (exhibit 4, p99) the Veteran's son advised that the Veteran and the Applicant lived "separate lives". It is curious that the Applicant gave no hint of the Veteran's psychiatric problems or the major strains on their relationship. While at one level one may argue that these issues are not directly relevant to his death, they certainly provide a context in which the Applicant's evidence must be considered in order to assess the weight to be given to her evidence. The Tribunal is left wondering about the Applicant's motivation in not providing this contextual information and must question her credibility in looking for the reason why she downplayed a significant factor in the totality of her evidence.
The Tribunal could have been helped by the parties' representatives on this issue, but instead these facts remained buried in the large volume of clinical notes (totalling some 1,300 pages) that the Tribunal has had to consider after the conclusion of the hearing. Cross-examination on these issues would have been of considerable assistance to the Tribunal. For example, the Tribunal is left wondering what level of day to day contact was experienced between the Veteran and the Applicant, in order to assess the Applicant's evidence that at the time of the motor vehicle accident the Veteran had not completely recovered from the pneumonia he suffered in May 1997. As it now stands the Tribunal has had to rely heavily but not completely on evidence other than the Applicant's evidence in coming to an understanding of the Veteran's respiratory disease. We hasten to add that if it appeared that this was likely to have been the turning point in our decision it might have been necessary to recall the Applicant to give further evidence. However, as the decision turned ultimately on the medical evidence, this was not necessary.
The Tribunal notes the report of the Veteran's local doctor, Dr Rikard-Bell, dated 22 January 1999, (T27, p108) and would give considerable weight to this report. In particular it provides an objective backdrop about the Veteran's health problems at the time of his motor vehicle accident, within which to consider the Applicant's evidence. Dr Rikard-Bell noted the negative effects of the Veteran's smoking on his lung function and vascular function that impeded his recovery following the accident, and that these impacted on the outcome of the considerable surgery he had as a result of that accident. Interestingly, however, he made no reference to the effect of his lung function on the final illness and surgery before he died.
Dr Rikard-Bell provides evidence of the fact that the Veteran suffered from intermittent, significant bronchitis and chest infections, and on some occasions this was associated with heart failure probably arising from his lung infection. It does not provide evidence of the fact that at the time of the Veteran's death he was suffering from a lung infection.
The Tribunal finds that the Veteran suffered from smoking related chronic airways disease that was significantly less severe than the Applicant would have us believe. On the basis of the analysis of the evidence relating to s120(3) (supra) the Tribunal finds that despite the Veteran's chronic lung disease that would have been an inhibiting factor in his survival from the injuries arising from the accident, he survived a series of significant medical and surgical hurdles. By the time he was discharged from hospital early in January 1998, and thereafter, there was no evidence of any lung infection. He had not smoked since 15 August 1997. The weakness reported by the Applicant after his discharge from hospital, would have arisen from his grossly debilitated state as a sequel of his injuries. The Tribunal is satisfied beyond reasonable doubt that the Veteran's lung condition at the time peritonitis developed was at least no worse than it had been at the time of the motor vehicle accident which he survived in spite of his lung condition. The Tribunal also finds that, even though the injuries from the motor vehicle accident and his general physical condition was critical, the overwhelming sepsis following the development of peritonitis put his life in a parlous state. He remained unconscious for the duration of his admission until his death seven days later. That alone would cause the development of bilateral pneumonia that was found at autopsy, and therefore this pathological incidental finding is considered by the Tribunal as an agonal event.
The Tribunal is satisfied beyond reasonable doubt, pursuant to s120(1) of the Act, that there is no sufficient ground for determining that the Veteran's death was war caused. The decision under review is therefore affirmed.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member and Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  18 and 25 October 2000
Date of Decision  12 April 2001
Counsel for the Applicant        Mr M Vincent
Solicitor for the Applicant         Ms Mashman, Dibbs Barker Gosling
Solicitor for the Respondent    Mr S Modder