Cox and Repatriation Commission
[2008] AATA 368
•6 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 368
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1341
VETERANS’ APPEALS DIVISION ) Re DIANE VIOLET COX Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, MemberDate6 May 2008
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes a decision that the late Mr Cox's death was war-caused and defence-caused. The matter is remitted to the respondent to assess the rate of war widows’ pension applicable to the applicant.
...................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
Veterans’ Affairs – claim by widow – veteran performed operational service and eligible service – death by suicide – claim that suicide attributable to service – meaning of attributable to service – exposure to asbestos – reading of article triggering depression – adjustment disorder caused by fear of contracting asbestosis – disorder led to suicide – causation attributable to service – decision set aside.
Veterans' Entitlements Act 1986 ss 6-6F, 7, 8(1)(b),13(1), 14, 120(4), 196B(14)
Statement of Principles concerning suicide or attempted suicide No. 71 of 1996, as amended by Instrument No. 177 of 1996
Statement of Principles concerning suicide or attempted suicide No. 72 of 1996, as amended by Instrument No. 178 of 1996
Statement of Principles concerning adjustment disorder No. 57 of 1996Statement of Principles concerning adjustment disorder No. 58 of 1996
Benjamin v Repatriation Commission (2001) 70 ALD 622
Crane and Repatriation Commission [2003] AATA 447
McKenna v Repatriation Commission (1999) 86 FCR 144
PMT Partners Pty Limited v Australian National Parks and Wildlife Service (1995) 184 CLR 301
Repatriation Commission v Bendy (1989) 18 ALD 144
Repatriation Commission v Hawkins (1993) 45 FCR 205
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
6 May 2008 Ms Robin Hunt, Senior Member
Dr Maxwell Thorpe, Membersummary
1. Mrs Diane Violet Cox is the widow of the deceased veteran, Mr Leslie Cox. Mr Cox was exposed to asbestos dust during periods of operational service and defence service which he performed in the Royal Australian Navy. Mrs Cox believes her late husband’s suicide was attributable to his fear of contracting an asbestos related disease due to his exposure to asbestos during service periods. Mr Cox, who already had a lung disease, committed suicide after reading an article about the fate of other servicemen who had died of asbestos related diseases. Mrs Cox is seeking the widow’s pension. We have found that the late Mr Cox’s death was both war-caused and defence-caused, following a chain of events starting with his exposure to asbestos dust during service, his lung disease, the reading of the article and his developing depression which led to his suicide. The date of effect of our decision is 3 December 2004.
issue
2. The issue for the Tribunal is whether the veteran’s “kind of death”, which was death by suicide, was related to his service in such manner that it was war-caused and/or defence-caused. The only dispute between the parties is whether the veteran’s death was attributable to his service so as to give rise to liability.
agreed facts
3. The parties agree on the facts set out below, in the manner expressed as ‘agreed facts’ prepared for the hearing. The facts agreed are:
· The late Mr Cox was born on 29 July 1941 and was 63 years old when he committed suicide.
· The veteran served in the Royal Australian Navy from 22 August 1964 to 21 August 1979. He had 3 periods of operational service on HMAS Melbourne in 1965 and 2 periods of operational service on HMAS Sydney in 1966.
· While serving on HMAS Melbourne and HMAS Sydney, the veteran was exposed to asbestos dust.
· The veteran also performed defence service from 7 December 1972 to 21 August 1979 and this included being employed in the Fire/Crash Rescue section at HMAS Albatross in 1968 and for about 4 years in the early 1970s. While serving at HMAS Albatross, the veteran was a member of an aircraft crash crew and was required to wear a fire suit, which included an asbestos hood.
· From about the late 1980s, the veteran suffered from emphysema and had a history of dyspnoea for 5 years in 1994 but there is no evidence that he suffered from an asbestos related disease.
· Shortly before his death, the veteran received Volume 1 issue 11 of Flying Stations, a Journal of the Australian Navy Aircraft Handlers, containing an article that dealt with the dangers from exposure to asbestos, to those who served on aircraft carriers or who were in fire-crews at HMAS Albatross. After reading the article, the veteran went into deep depression and went very quiet and would not talk to anybody. The article led to a sudden and marked change in the veteran. He ceased talking to the family and ceased eating, which led to rapid weight loss, and he went to bed much earlier, his drinking escalated and he kept reading the article over and over.
· The veteran died on 30 September 2004 and the cause of death was certified as –
(i)Hanging
· Receipt of the article, containing information about asbestos-related lung disease, was an “identifiable psychosocial stressor” and triggered the onset of an adjustment disorder.
· The veteran developed an adjustment disorder with depressed mood as a result of an acute depressive reaction to reading the Flying Stations article about the dangers the veteran faced because of his exposure to asbestos during his service. His sense of alarm was amplified by his history of chronic lung disease and he feared for his life in the light of the news he had received.
4. We find there is evidence before us of the agreed facts and are satisfied that these facts are correct.
Consideration and findings
5. A person who has rendered “operational service” [sections 6-6F of the Veterans’ Entitlements Act 1986 (the Act)] is taken to have rendered “eligible war service” (section 7 of the Act) and may qualify for disability pension. The veteran’s dependants may receive compensation if the veteran died as a result of a war-caused injury or disease. Broadly, war-caused death is compensable if it resulted from an occurrence during operational service or if the death was attributable to eligible war service (section 8 of the Act).
6. There is no doubt that the late Mr Cox carried out operational service as part of his eligible war service and that, under section 14 of the Act, his dependent widow may claim a pension. Subsection 13(1) of the Act makes the Commonwealth liable to pay such a pension where the veteran has suffered a war-caused death.
7. The applicant’s claim involves attribution of her late husband’s death to operational service and eligible war service. The standard of satisfaction for deciding the applicant’s entitlement based on eligible war service is that of reasonable satisfaction according to subsection 120(4) of the Act, as modified by section 120B. A veteran who has operational service has entitlement determined under the “reasonable hypothesis” standard of satisfaction according to subsections 120(1) and (3) of the Act, as modified by section 120A. Our fact finding, for all other purposes, must be made to our reasonable satisfaction.
8. Mrs Cox is also claiming that her late husband’s defence service, played a part in his death as he was exposed to asbestos dust during this period of service as well. Eligibility for a pension in respect of defence-caused death is governed by section 70 of the Act. The standard of proof for defence-caused death is reasonable satisfaction.
9. The kind of death suffered by Mr Cox was death by suicide. There is no doubt about this aspect of the applicant’s case. As well as the certificate of death, the report of Dr Lewin, dated 22 March 2006, accepts this event occurred and examines the cause. Having established the kind of death suffered by the veteran, the next step is to determine whether there is a reasonable hypothesis about the link to relevant service.
Diagnosis of adjustment disorder -
10. The respondent accepts that Mr Cox was suffering from an adjustment disorder within the weeks prior to his death. From our reading of the medical reports and statements in evidence we are satisfied that the diagnosis of adjustment disorder with depressed mood is accurate.
The hypotheses -
11. The hypotheses for Mr Cox’s various types of service is that he developed adjustment disorder leading to suicide because of his fears resulting from his exposure to asbestos dust and the reading of the article which highlighted the risks of death from exposure.
12. In respect of the veteran’s operational service, the hypothesis is that the identifiable psychosocial stressor which the veteran experienced shortly before his death was relevantly related to his operational service.
13. In respect of the veteran’s defence service, the hypothesis put to us is that it is more likely than not that the identifiable psychosocial stressor the veteran experienced shortly before his death was relevantly related to his defence service.
14. The identifiable psychosocial stressor was caused by –
(a) the veteran’s history of chronic lung disease;
(b) the veteran learning that he had been exposed to asbestos on both operational and defence service; and
(c) the veteran learning about the dangers he faced as a result of that exposure.
15. It is the applicant’s submission that these facts mean that the identifiable psychosocial stressor was both war-caused and defence-caused.
16. The standard of proof applicable to the question whether death was war-caused is governed by sections 120, 120A and 120B of the Act. If there is a Statement of Principles (SoPs) covering the injury or death in question, we must have regard to this in order to determine the reasonableness of the hypothesis in accordance with these provisions.
17. The applicable SoPs for suicide are Instrument Nos. 71 and 72 of 1996 as amended by Instrument Nos. 177 and 178 of 1996, depending on whether the claim considered is death due to operational service or death due to defence service. The applicant argues that factors 5(b) and (g) in Instrument No. 71 are met and/or the similar factors 5(a) and (f) in Instrument No. 72 are met. Respectively, factors 5(b) and (a) both involve –
… suffering from depression at the time of suicide or attempted suicide; …
Where –
“depression” means any psychiatric disorder with depressive features, such as the following disorders as defined in DSM-IV:
…
(viii) Adjustment disorder with depressed mood, ICD code 309.0, 309.1, 309.4 or 309.28; …
18. In order to for us to find the hypothesis for death related to operational service is reasonable, we must find material which points to the hypothesis. We note that each sub-hypothesis must be supported by a Statement of Principles: McKenna v Repatriation Commission (1999) 86 FCR 144 per Branson, Sundberg and Kenny JJ. This means we must find the hypothesis for adjustment disorder is reasonable as well as the hypothesis for suicide.
19. The SoPs concerning adjustment disorder includes the factor –
5(a) experiencing an identifiable psychosocial stressor or stressors within the three months immediately before the clinical onset of adjustment disorder;
…
Where –
“psychosocial stressor(s)” means an injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress (for example being shot at, being involved in a motor vehicle accident, experiencing a failure or loss such as divorce; or receiving a diagnosis of a disabling medical condition such as a malignancy or chronic cardio respiratory disorder);
20. As the respondent accepts that Mr Cox did develop an adjustment disorder with depressed mood as a result of an acute depressive reaction to reading the Flying Stations article about the dangers the veteran faced because of his exposure to asbestos during his service and we have material before us suggesting this occurred, we are satisfied there is material pointing to the reasonableness of this part of the hypothesis. We further note there is material furnished by Mr Cox’s family and doctors to suggest Mr Cox’s sense of alarm was amplified by his history of chronic lung disease and that he feared for his life in the light of the news he had received.
21. In addition, we note that the respondent accepts that receipt of the article, containing information about asbestos-related lung disease, was an “identifiable psychosocial stressor” and triggered the onset of an adjustment disorder. We further find there is material before us to point to this occurrence and its effect on the veteran.
Is the hypothesis linking death to operational service reasonable?
22. The question whether death is war-caused, in accordance with subsection 120(1) of the Act, must be determined on the “reverse criminal” standard of proof. That is, we must determine that death is a war-caused disease unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
23. Pursuant to subsection 120(3) of the Act, we shall be so satisfied if, after consideration of the whole of the material before us, we are of the opinion that the material does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the veteran’s operational service. If a SoPs determined under subsection 196B(2) of the Act is in force, a raised hypothesis connecting the death with the circumstances of operational service will be “reasonable” only if the hypothesis fulfils the tests or factors the SoPs requires: see subsection 120A(3) of the Act.
24. In turning our minds to the reasonableness of the hypothesis we note Mr Cox did experience a relevant psychosocial stressor in accordance with the SoPs and next look at material suggesting the date of clinical onset of adjustment disorder. We must see if there is material before us pointing to onset within the period provided in the SoPs.
25. The respondent has furnished a history for Mr Cox that shows he was discharged from the navy on 21 August 1979. Material before us suggests the onset of Mr Cox’s adjustment disorder was much later, a few weeks before his death on 30 September 2004. This date of onset is borne out by Dr Lewin in his written report prepared for the respondent, dated 22 March 2006. Dr Lewin says, “I think it likely that there was an acute depressive reaction over the last few weeks of Mr Cox’s life. This appears to have arisen acutely in response to the newsletter Mr Cox received. I think it likely that Mr Cox’s sense of alarm regarding the possibility of an asbestos related disease was amplified by his chronic history of lung disease”.
26. The stressor Mr Cox experienced was not the exposure to asbestos dust but his learning of the dangers to which he was exposed as a result. The adjustment disorder arose out of Mr Cox’s reading the newsletter and the parties agree that this event is an identifiable psychosocial stressor. In addition, Dr Lewin expresses the opinion, in his report dated 17 December 2007, that receiving the newsletter was an identifiable psychosocial stressor.
27. In order to determine the relationship between service and the depression and death, we are required to turn to the SoPs. Clause 4 of Instrument No. 57 of 1996, as well as in Instrument Nos. 71 and 72 of 1996, provide that the factors in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person before the hypothesis argued is reasonable.
28. The present case is unusual as Mr Cox received the newsletter, which was the acknowledged psychosocial stressor leading to his adjustment disorder, 25 years after he was discharged from the navy. The reading of the article was an occurrence that clearly did not occur during a period of operational service or eligible service. Bearing this in mind, we have considered next whether it is appropriately related to Mr Cox’s service so as to meet factor 5 provisions.
29. The material before us suggests Mr Cox read the article about the consequences of being exposed to asbestos in September 2004. This means that the clinical onset of adjustment disorder would need to occur within three months of this event as the relevant stressor. The clinical onset of Mr Cox’s adjustment disorder was in 2004 according to the medical and lay material before us. While there is nothing pointing to Mr Cox consulting his GP, Dr Wong, in relation to the dangers he faced as a result of asbestos exposure described in the article nor that Mr Cox sought other medical opinion in relation to these specific concerns, we note he frequently consulted doctors about his emphysema. More conclusively, the statements of his family suggest his reaction to the article produced an immediate change in behaviour and a very noticeable change in mood.
30. As to clinical onset of the adjustment disorder with depressed mood, Dr Lewin says that Mr Cox had an acute depressive reaction which arose acutely after reading the article. Dr Lewin recorded that he had read the statements of various family members which are before us. These noted an immediate reaction. Dr Lewin placed some importance on those statements in diagnosing adjustment disorder. The reports of Dr Breslin before us throw no light on this matter but we note that Dr Breslin is a thoracic physician and did not deal with clinical onset of Mr Cox’s mental condition.
31. We accept the opinion of Dr Lewin and find there is material before us pointing to clinical onset occurring within the requisite 3 months of experiencing a stressor related to operational service. This means there is material to suggest his condition was related to his relevant service. He therefore meets the minimum requirements of the SoPs. This leads to a conclusion that the hypothesis as to the causation of his adjustment disorder is reasonable.
32. The next question is whether there is material before us pointing to a link between the adjustment disorder and suicide. We consider there is such material as the applicable SoP for suicide, Instrument No. 71 of 1996 as amended by Instrument No. 177 of 1996, factor 5(a) is met. The factor reads:
… suffering from depression at the time of suicide or attempted suicide; …
Where –
“depression” means any psychiatric disorder with depressive features, such as the following disorders as defined in DSM-IV:
…
(viii) Adjustment disorder with depressed mood, ICD code 309.0, 309.1, 309.4 or 309.28; …
33. The respondent accepts that Mr Cox was suffering from adjustment disorder with depressed mood when he committed suicide and we find there is material before us pointing to this conclusion. This leads to a conclusion that the hypothesis as to the causation of suicide is reasonable.
Is there no sufficient ground for determining death is war-caused?
34. Next, in accordance with subsection 120(1), we must decide if we are satisfied beyond reasonable doubt that no sufficient ground exists for determining the veteran’s death was war-caused before we can reject the claim.
35. We have analysed the material concerning the likely date of onset of Mr Cox’s adjustment disorder and, on balance, find that this occurred within the requisite 3 months of experiencing a psychosocial stressor related to operational service. We are satisfied on at least the balance of probabilities that the veteran’s death in the present case satisfies subsection 8(1) paragraph (b) in that his death is attributable in some degree to his eligible war service. This is acknowledged by Dr Lewin, on whom the respondent relies. Lay witnesses also make the same link in their written statements furnished for the review.
36. In view of the medical opinion of Dr Lewin and the lay evidence of members of Mr Cox’s family, we are reasonably satisfied that Mr Cox did suffer adjustment disorder with depressed mood in the weeks leading to his death and after reading the article in September 2004. In view of the medical opinion we have considered above and the statements of Mr Cox’s family, we are satisfied beyond reasonable doubt that no sufficient ground does exist for determining that death was not war-caused. It follows that we find that Mr Cox’s death was war-caused unless disqualified by the time in which the events of adjustment disorder and death occurred.
Must the stressor occur during service?
37. The respondent submitted that a stressor must occur during service to meet requirements. None of the SoPs relevant to the applicant’s claim state that the stressor must occur during eligible service or operational service. The requirement spelt out in Instrument No. 57 of 1996 for adjustment disorder, clause 4, says at least one of the factors in clause 5 must be ‘related to’ service. Clause 5 matters refer to the interval between stressors and clinical onset. Clinical onset must be within 3 months of the stressor according to factor 5(b). The instrument for suicide, Instrument No. 71 of 1996 as amended by Instrument No. 177 of 1996, simply requires that the veteran be suffering depression at the time of suicide.
38. Factor 4 of the statement of principles provides “the factors in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person”. Mr Cox received the newsletter that triggered his condition and subsequent death 25 years after he was discharged from the navy. In other words, the psychosocial stressor did not occur during a period of eligible service. The further question is whether it is nevertheless related to Mr Cox’s naval service.
39. In Repatriation Commission v Law (1980) 31 ALR 140 (‘Law’), the Full Court of the Federal Court considered the comparable provisions of the repealed Repatriation Act 1920 and considered the meaning of the phrases ‘has arisen out of’ and ‘is attributable to’. The court made the findings below.
"Has arisen out of"
…
The Act does not say death which is "caused by" or "results from" his war service - phrases which might connote a proximate causal relationship. The expression "arisen out of" is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description "arising out of".
"Is attributable to"
…
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show "attributability" if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made.
40. While the Law case concerned attribution or a link with service and smoking, we consider the discussion of these concepts useful. Further, there is no doubt in our minds that the events of being exposed to asbestos together with reading an article about the dire consequences combine to bring about a contributing cause of Mr Cox’s adjustment disorder and death.
41. As well, in Repatriation Commission v Bendy (1989) 18 ALD 144 (‘Bendy’), Davies J stated:
In Repatriation Commission v Law (1981) 147 CLR 635 at p 648, Aickin J, with whom Gibbs CJ, Stephen and Mason JJ agreed, when considering provisions of the Repatriation Act 1920 (Cth) accepted that it was sufficient if war service was one of a number of causes of a disease provided that it was a contributing cause. I have myself, on occasions, used the term “material contribution” in this context. The adjective “material” is not necessary but its use is familiar. See, eg Clover, Clayton & Co., Limited v Hughes [1910] AC 242 per Lord Loreburn at 247; Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317 per Latham CJ at 328; Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 per Rich ACJ at 564, Dixon J at 567, 568, McTiernan at 571, 572. The expression “contributed in any material degree” was used in the Workers’ Compensation Act 1958 (Vic) and is used in s 9(1)(e) of the VE Act and in s 7(3) of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth). In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution that is de minimis, which does not influence the cause of events or which is so tenuous as to be immaterial is to be ignored. The term “material” is here used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely, “of substantial import or much consequence” but rather in its legal sense of “pertinent” or “likely to influence”.
42. It follows from Law and Bendy that the veteran’s exposure to asbestos on operational or defence service or both made some contribution to his experiencing the psychosocial stressor. It is sufficient that the exposure influenced the course of events to an extent that cannot be ignored. We have no difficulty by any standard of proof in finding that there was a significant link between the exposure and the death. The asbestos exposure did influence the tragic outcome although not a direct physical cause of death.
43. Despite the psychosocial stressor coming about through recollection of the exposure to asbestos on service, it does not affect the issue. A disease caused by the recollection of events on eligible service may still be war-caused, as the Full Court of the Federal Court in Repatriation Commission v Hawkins (1993) 45 FCR 205 explained. The Court approved the words of Davies J at first instance when he pointed out that in workers' compensation cases events prior to commencement of work, as well as events subsequent to cessation of work, have been regarded as causally connected with the employment. The Full Court said, “No one doubts that a disease caused by the recollection of the terrors of combat would be war-caused; it would be a bizarre conclusion that attribution should depend on whether the sufferer is looking back or looking forward at the very same occasion”. Similarly, we do not doubt that Mr Cox’s recollection of his exposure contributed to his reaction and death years later.
44. In further support of our opinion that these events made a significant contribution to Mr Cox’s death, we note the outcome in the case of Crane and Repatriation Commission [2003] AATA 447 (‘Crane’). In that case, the tribunal dealt with facts similar to those in the present case. The tribunal found:
(a) The Applicant suffers from a major depressive disorder and generalised anxiety.
(b) The Applicant's psychiatric illness was caused by the stress of worry resulting from a combination of his duties during his naval service in which he was heavily exposed to asbestos dust and becoming aware, through a television programme in 1990, of the probability that he would eventually contract a very serious lung condition which could result in death or serious physical disability.
(c) The Applicant's psychiatric condition was aggravated in 1995 and again in 2000 and 2002, when his fears about contracting an asbestos related lung condition began to show medical signs of coming true.
The Full Court of the Federal Court on appeal upheld the tribunal’s decision.
45. In Crane, the tribunal accepted that the shock caused by learning of the dangers of exposure to asbestos, some 17 years after discharge, brought about war-caused depressive disorder. A similar chain of events afflicted Mr Cox. We therefore find that the necessary link to operational service is established.
46. We have found the events leading to death need not occur during service. In accordance with subsection 120(1), we are satisfied beyond reasonable doubt that no sufficient ground exists for determining the death was not war-caused.
Section 8 – war-caused death and attribution to operational service
47. We have already noted subsection 8(1) paragraph (a) is a provision concerning operational service while subsection 8(1) paragraphs (b), (c) and (e) concern eligible service. The requirement in (a) is that the death of the veteran resulted from an occurrence that “happened while the veteran was rendering operational service”. It is clear that the occurrence of reading the article did not occur during operational service but that exposure to asbestos dust did occur during operational service. Therefore we consider that there is a link between an occurrence that happened while the veteran was rendering operational service even though it was not the same event as that which triggered the adjustment disorder and the suicide. In our view, Mr Cox’s death, nevertheless, is attributable to operational service for the purposes of subsection 8(1)(a) although the full consequences to Mr Cox depended on events outside the period of service.
48. We also have no doubt in our minds that the death was attributable to some extent to the veteran’s eligible war service via the exposure to asbestos and the identifiable psychosocial stressor he experienced 25 years later when reading about the consequences. We find that Mr Cox’s death comes within subsection 8(1)(b) in that his death was in part attributable to his eligible war service.
49. Mr Cox’s not suffering an asbestos related disease does not change our view about the relationship to his death. Mr Cox’s reading of the newsletter article in 2004 may not have been the first time Mr Cox learned naval personnel on HMAS Sydney, HMAS Melbourne and HMAS Albatross were exposed to asbestos. However, the written statements from members of Mr Cox’s family confirm the article profoundly affected him. Dr Lewin’s medical opinion also confirms this.
50. The article Mr Cox read may have exaggerated the effects of asbestos. This is the opinion of Dr Breslin expressed in his report dated 26 July 2007, “the newsletter Flying Stations tends to exaggerate the effects of asbestos”. However, this does not alter the reaction to the article that Mr Cox experienced. His perception was increased by his already having a lung disease and by his exposure to asbestos not only during operational service but also during his defence service.
51. The next question is whether the attribution is sufficient basis for liability. In forming a view on the degree of attribution, We refer to the cases of Law, Bendy and Crane which show that the causation need not be the sole or dominant cause and that "attributability" may occur where the cause is one of a number of causes, provided it is a contributing cause. On balance, we find the outcome in the present case is attributable to eligible war service in this sense. The exposure to asbestos was quite a significant factor in the death of Mr Cox. We are satisfied beyond reasonable doubt that the death is to some extent attributable to exposure to asbestos during operational service and to eligible war service.
52. We have already gone through the process of finding death was caused according to the standards set out for operational service in sections 120 and 120A. In respect to defence service, we note that sections 120 and 120B require reasonable satisfaction. For the same reasons and taking the links from the starting point of exposure, through experiencing a relevant stressor by reading the relevant article, the ensuing adjustment disorder and death by suicide, we find the parallel SoPs for depression and suicide in regard to eligible war service are met. We find no sufficient reason for determining that the SoPs are not met and consequently find that Mr Cox’s death was due in part to defence service.
Section 196B – death related to service
53. We have further searched for a link demanding an occurrence during service according to section 196B of the Act as suggested by the respondent. Subsection 196B(14) sets out that a factor “causing, or contributing to, an injury, disease or death” is related to service rendered by the person in a number of ways. These ways of establishing the required link to service are not cumulative but are all separately stated possibilities from paragraph (a) to (g). Subsection 196B(14) paragraph (b) states that an event is “related to service” if “it arose out of, or was attributable to, that service”. This is in clear distinction to paragraph (a) which provides that the death or injury is related to service if it resulted from an occurrence that happened while the person was rendering the relevant service.
54. For a stressor to be attributable to service under subsection 196B(14) paragraph (b), in our view, there must be an established link or chain of causation and not necessarily an occurrence during service. In the present case, a chain commenced with the exposure to asbestos during service, followed by a stressor experienced when reading the article about the consequences of exposure to asbestos, progressing through reactive adjustment disorder and culminating in death by suicide. We find the applicant’s claim comes within subsection 196B(14) paragraph (b).
55. We do not consider the causal link unduly remote by reference to the chain of causation. The respondent argued that the connection was too removed in terms of the purpose of the legislation but we do not agree. In PMT Partners Pty Limited v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at page 313, when considering the connection required by the words “in relation to” in the Commercial Arbitration Act 1985 (NT), the High Court explained:
Inevitably, the closeness of the relationship required by the expression “in or in relation to” in section 48 of the Act, indeed, in any instrument must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears.
56. Having found no disqualification by virtue of the requirements of section 196B, we are satisfied beyond reasonable doubt that the veteran’s death was defence-caused. The finding that the death was defence-caused is sufficient for Mrs Cox’s claim to succeed.
Was the death war-caused?
57. In summary, our answer to the question whether the necessary link can be made to operational service and to eligible war service for section 8 purposes is “yes”. Subsection 8(1) paragraph (a) requires that the death of the veteran result from an occurrence that happened while the veteran was rendering operational service. We have already found that there was an occurrence during operational service and that subsection 8(1)(a) is met. By contrast, subsection 8(1)(b) provides that the death must have arisen out of or be attributable to eligible war service. We have already found above that the death was attributable to or arose out of such service. Therefore, having examined all the steps that must be satisfied to make the finding that the death of Mr Cox war-caused, and being satisfied that these are all fulfilled, we find beyond reasonable doubt that his death was war-caused.
Was the death defence-caused?
58. For defence caused death, see the standard set out in subsection 70(5). This provision, in paragraph (a), sets out that the death of a person shall be taken as defence caused if it arose out of or was attributable to defence service. This requirement is in similar terms to subsection 8(1)(b) in respect to war-caused death. To our way of thinking, the requirement in subsection 70(5) paragraph (a) that the death of the veteran ‘arose out of or was attributable to’ any defence service, makes it plain that there is no requirement that there be an occurrence during service.
59. We have come to the conclusion that Mr Cox’s adjustment disorder arose from a combination of his duties during his naval service, in which he was heavily exposed to asbestos dust, and his becoming aware, through an article in a services magazine in 2004, of the probability that he would eventually contract a very serious lung condition which could result in death or serious physical disability. In other words, his psychiatric condition came about through a combination of service-related events and ultimately led to his suicide. On balance, we consider the material before us indicates it is more likely than not that Mr Cox’s death was related to his defence service.
60. On the agreed facts, it follows that the veteran’s exposure to asbestos on defence service causally contributed to the identifiable psychosocial stressor he experienced shortly before his suicide. We therefore find the death of the veteran comes within subsection 70(5) and is defence caused as well as war-caused. In respect of his defence service, we find it is more likely than not that the same identifiable psychosocial stressor the veteran experienced shortly before his death was relevantly related to his defence service. It follows that we find that attribution of death to defence service is reasonable. We find therefore that Mr Cox’s death was defence-caused in addition to being war-caused.
conclusion
61. Therefore we will set aside the decision of the Veterans’ Review Board made on 7 October 2005 and substitute the decision that the death of Mr Cox was war-caused as well as defence-caused and the Commonwealth is liable to pay pension to Mrs Cox on and from 3 December 2004.
decision
62. The Tribunal sets aside the decision under review and substitutes a decision that the late Mr Cox's death was war-caused and defence-caused. The matter is remitted to the respondent to assess the rate of war widows’ pension applicable to the applicant.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Maxwell Thorpe, Member
Signed: ........................[Sgd]............................
Jennifer Wong, AssociateDate of Hearing: 23 January 2008
Date of Decision: 6 May 2008
Counsel for the Applicant: Mr C ColborneAdvocate for the Applicant: Ms C Malcolm, Legal Aid Commission – Veterans’ Advocacy Service
Advocate for the Respondent: Ms J Warmoll, Department of Veterans’ Affairs
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15
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