Dall and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 498

Dall and Repatriation Commission (Veterans’ entitlements) [2015] AATA 498 (10 July 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/5223
Re	Patricia Dall
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	10 July 2015
Place	Brisbane

The decision under review is set aside and substituted with a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension, the date of effect being 2 July 2013.

..........................[Sgd]..............................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS  – claim for war widow’s pension – operational service – kind of death – hypertension – ischaemic heart disease – aortic stenosis – whether conditions war-caused – reasonable hypothesis raised on the material – decision under review set aside.

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 13, 14, 120, 120A, 196A, 196B

Statement of Principles Concerning Ischaemic Heart Disease No. 89 of 2007

Statement of Principles Concerning Aortic Stenosis No. 21 of 2013

Statement of Principles Concerning Hypertension No. 63 of 2013

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82

Forrester v Repatriation Commission [2013] FCA 898

Collins v Administrative Appeals Tribunal (2007) 163 FCR 35

Repatriation Commission v Stares (1996) 66 FCR 594

Byrnes v Repatriation Commission (1993) 177 CLR 564

Bushell v Repatriation Commission (1992) 175 CLR 408

Repatriation Commission v McKenna (1998) 52 ALD 72

Repatriation Commission v Warren [2008] FCAFC 64

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Law (1981) 147 CLR 635

Collins v Repatriation Commission (2009) 177 FCR 280

Knight v Repatriation Commission (2010) 52 AAR 547

Deledio v Repatriation Commission (1997) 47 ALD 261

SECONDARY MATERIALS

G. Long, The Final Campaigns (Australian War Memorial, 1963)

G. Dickens, Never Late: The 2/9^th Australian Infantry Battalion (AHMP, 2005)

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

10 July 2015

INTRODUCTION

1. Mrs Patricia Dall (“the applicant”) was a dependent of the late Dr William Dall (“the veteran”) who served in World War II. I have to determine if the claim of the applicant for a war widow’s pension should be granted. At the hearing it was common ground between the parties that the date of effect of any decision to grant her application should be 2 July 2013.

   Prior Decisions

2. On 2 October 2013 the applicant made her claim for a war widow’s pension.

3. On 6 December 2013 a delegate of the Repatriation Commission rejected her claim. On 16 September 2014 the Veterans’ Review Board (“VRB”) affirmed the decision of the delegate. The applicant now seeks review of the decision by this Tribunal.

   Service

4. The veteran served in the Australian Army from 14 April 1944 until 28 October 1946. As the veteran served outside of Australia in Borneo the whole of his service constitutes “eligible war service” in the form of operational service.[1]

   [1] Veterans' Entitlements Act 1986 (Cth) ss 6A, 7.

   LEGISLATIVE FRAMEWORK

5. Section 8 of the Veterans' Entitlements Act 1986 (Cth) (“the Act”) provides for when the death of a veteran is taken to be war-caused. Relevantly, this provision applies where, under s 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.

6. Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.

7. Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1)(c) provides that the term “dependant” is defined to include a “widow”.

8. Section 5E of the Act defines a “war widow” to include a woman who was legally married to a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran.

9. As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and (3) of the Act.

10. Subsection 120(1) of the Act provides that where a claim for a pension:

    in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

11. Subsection 120(3) of the Act also provides:

    (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

    (a) that the injury was a war-caused injury or a defence-caused injury;

    (b) that the disease was a war-caused disease or a defence-caused   disease; or

    (c) that the death was war-caused or defence-caused;

    as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

    Statement of Principles

12. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”). The RMA is an independent medical body that issues Statements of Principles (“SoP”) based on sound medical-scientific evidence. The SoP set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.

13. Section 196B(2) of the Act provides that if the RMA:

    … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

    (a) operational service rendered by veterans; or

    the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

    (d) the factors that must as a minimum exist; and

    (e) which of those factors must be related to service rendered by a person;

    before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

14. A SoP is binding on decision-makers at all levels, including this Tribunal.

15. The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being “related to… service” is expounded in s 196B(14). This provides, relevantly, that a factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a person if:

    (a) it resulted from an occurrence that happened while the person was rendering that service; or

    (b) it arose out of, or was attributable to, that service;

    In the case of applications lodged after 1 June 1994, where the RMA has made a SoP in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This is followed by the application of s 120A(3) of the Act, which provides:

    For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

    (a) a Statement of Principles determined under subsection 196B(2) or   (11); or

    (b) a determination of the Commission under subsection 180A(2);

    that upholds the hypothesis.

    Death of the Veteran

16. The death certificate records that the veteran died in 2011 when he was 85 years of age. The certified causes of death were 1. (a) Severe left ventricular dysfunction; (b) Severe aortic stenosis and 2. Ischaemic heart disease.[2]

    [2] Exhibit A p 19.

    CONSIDERATION

17. I am required to consider the applicant’s claim in accordance with the Repatriation Commission v Deledio[3] (“Deledio”) four-step process.[4] In Deledio, the Full Court of the Federal Court of Australia provided guidance to this Tribunal on the four steps to consider:

    1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

    2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

    3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

    4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved..[5]

    [3] (1998) 83 FCR 82, 97-98.

    [4] Repatriation Commission v Bawden (2012) 206 FCR 296, 304-305.

    [5] Repatriation Commission v Deledio (1998) 83 FCR 82, 97-98.

18. In Forrester v Repatriation Commission,[6] Mortimer J observed that in Collins v Administrative Appeals Tribunal,[7] Allsop J (as he then was) pointed out that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.

    [6] [2013] FCA 898 [26].

    [7] (2007) 163 FCR 35 [31].

    Step 1 of Deledio

19. I am required to ascertain whether the material which is evidence points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. It has been said that “an hypothesis is no more than a supposition or conjectural explanation of an ultimate fact”.[8] In Forrester v Repatriation Commission,[9] Mortimer J pointed out that “whether material ‘points to’ or ‘supports’ a hypothesis is, of its nature, a matter which can be determined by inference or assumption”. Her Honour remarked that in Repatriation Commission v Stares[10] (a pre-Deledio case), the Full Court held that “assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach”.

    [8] Repatriation Commission v Stares (1996) 66 FCR 594, 601.

    [9] [2013] FCA 898 [30].

    [10] (1996) 66 FCR 594.

20. There is in my view a hypothesis connecting the death of the veteran with the circumstances of the service rendered by him. The respondent in the statement of facts, issues and contentions dated 21 April 2015 has quite properly conceded that the veteran’s service was stressful. I consider that it is legitimate to draw the inference that the veteran had stressful experiences during his service which resulted in the veteran’s excessive consumption of alcohol during wartime and afterwards, which caused him to develop hypertension, subsequent ischaemic heart disease and aortic stenosis.

    Step 2 of Deledio

21. I am required to ascertain whether there are in force any SoP issued by the RMA under ss 196B(2) or (11) of the Act.

22. There are SoP concerning Ischaemic Heart Disease (Instrument No. 89 of 2007) (“the Ischaemic Heart Disease SoP”); Aortic Stenosis (Instrument No. 21 of 2013) (“the Aortic Stenosis SoP”) and Hypertension (Instrument No. 63 of 2013) (“the Hypertension SoP”) that are in force as amended.

    Step 3 of Deledio

23. In assessing whether a raised hypothesis is “reasonable”, the High Court of Australia in Byrnes v Repatriation Commission,[11] has held that a reasonable hypothesis is raised when “the material points to some fact or facts (“the raised facts”) which support the hypothesis”.[12] Furthermore, the High Court remarked that in relation to this step:

    The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? 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 in issue at this point. [13]

    [11] (1993) 177 CLR 564.

    [12] Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569, citing Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408, 414.

    [13] Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.

24. Since 1 June 1994, in accordance with s 120A(3) of the Act, a decision-maker must refer to the relevant SoP issued by the RMA to assist in establishing whether an applicant's hypothesis is reasonable, for the purposes of the Act. Therefore, this Tribunal as a decision-maker is required to ascertain if it has material before it which fits the template for the relevant SoP. It has been held that the material must pose a credible proposition, not too remote or improbable; it must be:

    ... 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 on the balance of probabilities.[14]

    [14] East v Repatriation Commission (1987) 16 FCR 517, 533.

25. Accordingly, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility.[15] The High Court of Australia held in Bushell v Repatriation Commission[16] that the s 120(3) test will reveal a reasonable hypothesis where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service”.

    [15] Gilbert v Repatriation Commission (1989) 86 ALR 713, 721; Repatriation Commission v Bey (1997) 79 FCR 364.

    [16] (1992) 175 CLR 408, 416.

26. In Repatriation Commission v McKenna[17] Goldberg J emphasised that “it is fundamental to any enquiry under ss 120 and 120A of the Act to identify what is the relevant hypothesis”.

    [17] (1998) 52 ALD 72, 80.

27. The hypothesis that is put forward in the applicant’s statement of facts and contentions dated 9 April 2015 is that at the time of the veteran’s death he was suffering from ischaemic heart disease and aortic stenosis and that ischaemic heart disease and aortic stenosis were the kinds of death suffered by the deceased veteran. The applicant contends that the veteran’s excessive contribution of alcohol throughout his post-World War II life caused him to develop hypertension and subsequently ischaemic heart disease and aortic stenosis. The applicant relies upon factor 6(a) of the Ischaemic Heart Disease SoP which refers to a veteran having hypertension before the clinical onset of ischaemic heart disease; factor 6(f) of the Aortic Stenosis SoP which refers to having hypertension before the clinical onset of aortic stenosis and factor 6(b) of the Hypertension SoP which refers to consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension. The applicant contended that the medical evidence indicates that the onset date for hypertension was around 1975 and that the onset of ischaemic heart disease and aortic stenosis was approximately 1993.

28. The respondent in the statement of facts, issues and contentions dated 21 April 2015 concedes the causal relationships between hypertension and ischaemic heart disease and between hypertension and aortic stenosis (cl.15). The respondent contends that the available evidence does not establish a link between the veteran’s alcohol consumption and the clinical onset of his hypertension (cl. 14). The respondent also concedes that the veteran was a regular drinker from the time when he met the applicant until shortly before his death but makes no such concession with respect to any period before the drinker met the applicant. The respondent also does not concede that the deceased was a heavy drinker for all of those periods (cl. 12).

29. These statements of facts and contentions, which have been provided in accordance with the General Practice Direction, provides the background against which each party formed its case and interchanged with the Tribunal prior to the hearing.[18]

    [18] Repatriation Commission v Warren [2008] FCAFC 64 [92] per Logan J.

30. The Tribunal is required to determine the “kind of death” that is applicable to the veteran. The expression “kind of death” refers to the medical cause or causes of death.[19] The Federal Court of Australia has held that there may be more than one cause of death.[20]

    [19] Repatriation Commission v Hancock [2003] FCA 711 [8]-[9] per Selway J.

    [20] Repatriation Commission v Law (1981) 147 CLR 635, 648; Collins v Repatriation Commission (2009) 177 FCR 280 [51].

31. The applicant has contended that the causes of death of the veteran are severe aortic stenosis and ischaemic heart disease. The respondent in the statement of facts, issues and contentions agrees that “aortic stenosis and ischaemic heart disease were kinds of death of the deceased veteran” (cl. 9(a)). In reliance on the death certificate of the veteran I find that severe aortic stenosis and ischaemic heart disease are causes of the death of the veteran.

32. Clause 9 of the Aortic Stenosis SoP contains the following definition:

    "death from aortic stenosis" in relation to a person includes death from a terminal event or condition that was contributed to by the person’s aortic stenosis

33. The Aortic Stenosis SoP in cl 4 indicates that the RMA is of the view that there is sound medical-scientific evidence that indicates that death from aortic stenosis can be related to relevant service rendered by veterans. The veteran’s condition comes within the definition of aortic stenosis in cl 3(b) of the Aortic Stenosis SoP which refers to obstruction to flow across the aortic valve during left ventricular systole.

34. Clause 5 of the Aortic Stenosis SoP provides, subject to cl 7 (which is not material in this matter), that at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person.

35. Clause 9 of the Ischaemic Heart Disease SoP contains the following definition:

    "death from ischaemic heart disease" in relation to a person includes death from a terminal event or condition that was contributed to by the person’s ischaemic heart disease;

36. The Ischaemic Heart Disease SoP in cl 4 indicates that the RMA is of the view that there is sound medical-scientific evidence that indicates that death from ischaemic heart disease can be related to relevant service rendered by veterans. The veteran’s condition comes within the definition of ischaemic heart disease in cl 3(b) of the Ischaemic Heart Disease SoP which refers to a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.

1. Clause 5 of the Ischaemic Heart Disease SoP provides, subject to cl 7 (which is not material in this matter), that at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person.

2. I have to consider whether a reasonable hypothesis has been raised connecting death from ischaemic heart disease or aortic stenosis with the circumstances of the veteran’s relevant service. Clause 6 of the Ischaemic Heart Disease SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from ischaemic heart disease with the circumstances of a person’s relevant service is: “(a) having hypertension before the clinical onset of ischaemic heart disease”. Clause 6 of the Aortic Stenosis SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from aortic stenosis with the circumstances of a person’s relevant service is: “(f) having hypertension before the clinical onset of aortic stenosis”.

3. I consider that the material before me satisfies factor (a) in cl 6 of  the Ischaemic Heart Disease SoP as well as factor (f) in cl 6 of the Aortic Stenosis SoP. The respondent concedes the causal relationships between hypertension and ischaemic heart disease and hypertension and aortic stenosis. The death certificate refers to severe left ventricular dysfunction. Dr Mor in his report of 14 November 2013 has certified that the hypertension condition was first diagnosed in 1975. Dr Mor in his report has also given his opinion that the veteran suffered from hypertension prior to the onset of aortic stenosis and ischaemic heart disease.

4. The respondent contends that the available evidence does not establish a link between the alcohol consumption of the veteran and the clinical onset of his hypertension. Clause 6 of the Hypertension SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the circumstances of a person’s relevant service is:

   (b) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension

5. In 1975 when the hypertension condition was first diagnosed the veteran was a regular drinker of alcohol for more than the requisite six months that is stipulated in cl 6. The evidence of the applicant is that from at least 1969 the veteran would have 2 or 3 shots of scotch prior to dinner with 2 rather large glasses of wine during dinner and sometimes a glass of port or liquor would follow the meal.[21] The son of the veteran has given evidence that the veteran would consume more than 30 standard drinks per week.[22] The definition of “alcohol” in cl 9 of the Hypertension SoP provides that "alcohol" is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink. The level of consumption of alcohol as indicated by the son would satisfy factor (b) in cl 6 of the Hypertension SoP.

   [21] Exhibit B [4].

   [22] Exhibit C [5].

6. The respondent makes no submissions as to the quantum of alcohol consumed by the veteran. This concession by the respondent was appropriate having regard to the evidence of the applicant and the son of the veteran who confirmed the heavy drinking of the veteran.[23] This hypothesis fits the template that the veteran consumed alcohol at the rate that is specified by the Hypertension SoP for the six months before the clinical onset of hypertension.

   [23] Exhibit B [4]; Exhibit C [5].

7. What is in issue is whether the heavy alcohol consumption of the veteran is related to his service. In determining whether there is a reasonable hypothesis, the High Court of Australia explained that s 120(3) of the Act is:

   not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis.[24]

   [24] Bushell v Repatriation Commission (1992) 175 CLR 408, 413.

8. There is no evidence that the veteran had an alcohol consumption habit before his enlistment. During the hearing I remarked that the veteran was not of legal drinking age before his enlistment at age 18. The respondent has submitted that there are cases where individuals will commence drinking at that age. While this may be so in the case of some individuals it would not be fair in my view to draw an inference in this instance that the veteran drank before his enlistment. I have come to this conclusion because the applicant has stated that the veteran came from a family that rarely drank alcohol.[25]

   [25] Exhibit B [2].

9. The applicant has remarked that the veteran first drank alcohol while he was in the Army.[26] This was accepted by the VRB which commented:

   He commenced drinking alcohol during his service and, given the stressful nature of his service, his commencement of consumption of alcohol, and his continued consumption of alcohol during service could well have been as a result of his service.[27]

   [26] T5 p 17.

   [27] T2 p 9 [25].

10. The applicant could not give evidence of the alcohol consumption of the veteran before she met the him in 1950. However, she has stated that while the veteran was then a University student he “had bouts of drinking when meeting ex-army friends but between such episodes was a keen and serious student”.[28] The applicant in giving evidence stated that the veteran would be intoxicated on those occasions. It is reasonable to assume that the veteran would not have commenced having such reunions with his comrades at the time that he met the applicant but would have had such reunions after his discharge in 1946.

    [28] Exhibit B.

11. While the veteran certainly wanted to be in the company of his wartime comrades, there are indications that his drinking would have been influenced by his stressful experiences. There is material that supports the reasonable hypothesis that the heavy drinking of the veteran after World War II was caused by his stressful experiences during that conflict. The VRB did not have the benefit of the report of Dr Albert Palazzo dated 1 March 2015 which contains a summary of the service of the veteran during World War II: in particular, Dr Palazzo’s report mentions that the veteran participated in the Balikpapan campaign:

    At Balikpapan, Dall experienced war for real. The Japanese, although outnumbered, remained tenacious defenders. The Australians fought back and Dall would have witnessed terrible things. He would have seen the enemy set alight by flame thrower tanks and witnessed his opponent being entombed under the earth. Yet he did his duty as did his mates, and contributed to the Australian success at Balikpatan.[29]

    [29] Exhibit D (p.8).

12. The report of Dr Palazzo is accepted in toto by the respondent who has quite properly conceded the stressful nature of the veteran’s service. The report of Dr Palazzo refers to the official historian who records that when Balikpapan was seized evidence was found of the slaughter of large groups of native men and women who had been the victims of atrocities and mutilation.[30] The applicant in her statement has referred to the frequent nightmares experienced by the veteran.[31]

    [30] Exhibit D; G. Long, The Final Campaigns (Australian War Memorial, 1963), p 522.

    [31] Exhibit B [10].

13. The autobiography of the veteran referred to an incident when his battalion (the 2/9^th Infantry Battalion) “moved over to the south of the river and we chased the Japs inland”.[32] While at this stage of my inquiry I am not concerned with issues of credit, I wish to state that this account of the veteran is corroborated by the history of his battalion.[33]

    [32] Exhibit B [11].

    [33] G. Dickens, Never Late: The 2/9^th Australian Infantry Battalion (AHMP, 2005), p. 342 (Exhibit D).

14. I consider that the material before me points to a reasonable hypothesis that the death of the veteran is connected with the circumstances of his service to his country. There is material pointing to the veteran as a youth being exposed to extreme stress whilst he was on operational service. It is certainly reasonable and not fanciful to assume that this caused the veteran to become a heavy drinker of alcohol.

15. At this stage of my inquiry I am not required to make any findings of facts as to matters of proof. In Knight v Repatriation Commission[34] Katzmann J explained that “the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis”.[35] In, Deledio v Repatriation Commission[36] Heerey J pointed out that a claimant does not have to prove all the facts raised by a hypothesis.

    [34] (2010) 52 AAR 547.

    [35] (2010) 52 AAR 547 [35].

    [36] (1997) 47 ALD 261, 275.

    Step 4 of Deledio

16. I am now required to consider, under s 120(1) of the Act, whether or not, for the hypothesis, I am satisfied “beyond reasonable doubt” that the veteran's death was not war-caused. In Forrester v Repatriation Commission[37] Mortimer J, in discussing the fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at [this] stage”. After my review of the evidence I have come to the conclusion that there is no evidence which would enable me to be satisfied beyond a reasonable doubt that the death of the veteran was not war-caused. The respondent quite properly submitted that it has “no case” at Step 4 of the Deledio consideration.

    [37] [2013] FCA 898 [80].

    CONCLUSION

17. In my opinion the applicant is entitled to a war widow’s pension and should be accorded recognition as a war widow.

18. If the applicant had not succeeded on the reasonable hypothesis that has been put forward by the applicant I would have remitted the application for further consideration by the respondent. In such circumstances there may be a need for the further investigation of the claim in view of the hospitalisation in 1945 of the veteran in Rabaul for malaria. There is also evidence from 1946, which is contemporaneous with the period of service, that indicates the veteran was concussed when he sustained a fractured skull before his discharge; this added to the stress of the veteran who suffered from periodic migraines.

    DECISION

19. I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension. The date of effect of my decision to grant the applicant a widow’s pension is 2 July 2013.

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

..........................[Sgd]..............................................

Associate

Dated 10 July 2015

Date(s) of hearing	11 May 2015
Counsel for the Applicant	Mr A Harding
Solicitors for the Applicant	Terrence O'Connor Solicitors
Solicitors for the Respondent	Mr A Crowe, Repatriation Commission