Doyle and Repatriation Commission (Veterans' entitlements)
[2021] AATA 1023
•27 April 2021
Doyle and Repatriation Commission (Veterans' entitlements) [2021] AATA 1023 (27 April 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/3233
Re:Jennefer Doyle
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:27 April 2021
Place:Brisbane
The reviewable decision is affirmed.
................................[SGD]................................
Deputy President J Sosso
Catchwords
VETERANS' AFFAIRS – Widow's pension – Connection between kind of death and service – Cancer of the prostate – Link between alcohol consumption and service – Deledio methodology – Decision affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning malignant neoplasm of the prostate No. 53 of 2014 (Cth)
Cases
Elliott v Repatriation Commission (Elliott) (2002) 73 ALD 377
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Dunlop v Repatriation Commission [2003] FCAFC 201
Hardman v Repatriation Commission [2005] FCAFC 83
Hill v Repatriation Commission [2005] FCAFC 23
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Hancock [2003] FCA 711
Collins v Repatriation Commission (2009) 177 FCR 280
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Knight (2012) 202 FCR 451
Bull v Repatriation Commission [2001] FCA 1832
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
Cairns and Repatriation Commission [2013] AATA 742
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Bey (1997) 79 FCR 364
Cameron v Repatriation Commission [2003] FCA 1323REASONS FOR DECISION
Deputy President J Sosso
27 April 2021
INTRODUCTION
Mrs Jennefer Doyle (the Applicant) seeks a review of a decision of the Veterans’ Review Board (the Board) of 6 May 2020, which affirmed a decision of the Repatriation Commission (the Respondent) of 17 September 2019 that the death of her husband, William D’Arcy Doyle (the veteran), was not war-caused and that she was, consequently, not entitled to payment of a war widow’s pension under the Veterans’ Entitlements Act 1986 (the Act).
The veteran was born in November 1932 (Exhibit 4 T7 p. 25) and served in the Royal Australian Navy (RAN) between 2 August 1951 and 1 August 1957. During that period, the veteran had 22 days of operational service from 21 September 1956 to 13 October 1956 when he was deployed on HMAS Sydney to the Far Eastern Strategic Reserve – Exhibit 4 T3 p. 21.
The Applicant first met the veteran in December 1965 and began co-habiting with him in 1966 – Transcript (Tr.) 9.2.2021 p. 8. The veteran and the Applicant married in Brisbane on 9 July 1976 – Exhibit 4 T4 p. 22.
In July 1991 the veteran was diagnosed with metastatic cancer, with a bone scan revealing multiple metastases – Exhibit 4 T5 p. 23.
The veteran was treated by Dr Grant Trotter, who noted in a letter of 12 July 2000 that the veteran had a history of metastatic carcinoma of the prostate involving his lumbosacral spine. Dr Trotter made the following observations – Exhibit 4 T6 p. 24:
“As is common with metastatic prostate cancer, Mr Doyle is becoming less mobile and generally more tired. His disease is slowly progressive and his general health will continue to gradually deteriorate.”
On 27 November 2000 the veteran made a claim for a disability pension in relation to hearing loss, tinnitus and cancer of prostate – Exhibit 4 T7 pp. 25 – 33.
On 14 December 2000 the veteran provided information in support of his disability pension claim in relation to malignant neoplasm of the prostate. The particular Factors that the veteran claimed as the cause of his prostate cancer were increased animal fat consumption and spraying or decanting a herbicide. The following explanation was provided by the veteran – Exhibit 4 T8 p. 34:
“As a paints (shipwright) in the Navy I was required to paint and use chemicals etc, especially ‘DOPE’ within confined spaces. It has been suggested that the substances in the ‘DOPE’ Paint combined with the working environment are contributing factors to my current condition. In addition to this, the diet during my 6 year tenure in the Navy was characterized by high fat and low in fibre.”
A Delegate of the Respondent accepted the veteran’s claim for bilateral sensorineural hearing loss with tinnitus but refused the claim for malignant neoplasm of the prostate – Exhibit 4 T10 pp. 36 – 37.
The veteran passed away on 28 August 2001 at the Allamanda Private Hospital, Southport. The Death Certificate issued by the Registrar-General disclosed that the cause of death was prostate cancer and the duration of the illness was ten years -- Exhibit 4 T11 p. 44.
On 24 August 2019 the Applicant made a claim for a war widow’s pension – Exhibit 4 T12 pp. 45 – 54. In response to the Question of how the veteran’s service contributed to his death, the Applicant gave the following Answer – Exhibit 4 T12 p. 48:
“The link to service is that my husband started to drink in service and because of service. He stated to me reason for starting were peer group pressure, the service culture of drinking, how cheep [sic] it was on base and to help pass time. Further my husband had told me about drinking on board ship and how his drinking increased during his time in Asia (Operational service) the fear he had and the extra rations he was allowed to thus establishing a habit. A habit which lasted very many years. Alcohol is factor [sic] in the SOP by which DVA makes decisions.”
On 17 September 2019 a Delegate of the Respondent decided that the veteran’s death was not related to his service, and that a war widow’s pension was not payable – Exhibit 4 T14 pp. 57 – 59. The following reasons were given – Exhibit 4 T14 p. 59:
“The Repatriation Commission stance is that alcohol consumption does not necessarily result in addiction or dependence. The consumption of alcohol can be related to service in one or more of the following ways:
1.As part of a service related psychiatric condition; or
2.As part of a service related psychoactive substance abuse involving alcohol; or
3.Alcohol used as ‘self-medication’ or coping as a service related condition.
In the absence of any medical evidence regarding the presence of a diagnosable psychiatric condition in this case, I am unable to find that any part of the late veteran’s alcohol consumption can be attributed to his service covered by the VEA.
There is a no evidence on file of the veteran having consumed at least 200 kilograms of alcohol within any ten year period, within the 20 years before the clinical onset of Malignant Neoplasm of the Prostate, as the minimum factor that must exist in the relevant Statement of Principles, due to having met one of the above service related conditions.
I am reasonably satisfied in this instance none of the above factors apply, therefore I cannot link the veteran’s alcohol consumption to his operational service.”
The Applicant sought a review of this decision by the Board. On 6 May 2020 the Board affirmed the Delegate’s decision and provided the following reasons – Exhibit 4 T20 pp. 83‑84:
“37. While peer group pressure and service culture may be contributing factors to why a member consumes alcohol, these factors, in of themselves, do not necessarily cause an excessive alcohol consumption, or an addiction to arise. We note that during the period from his enlistment in 1951 to September 1956 your late husband did not deploy on operational service and any alcohol consumption occurred in a peacetime environment.
38. In all of the circumstances we do not accept that peacetime RAN service, that does not involve a significant stressor, will be a determining factor in establishing an alcohol consumption habit. There is no evidence before us to suggest that your late husband’s service from date of enlistment to the commencement of his operational service was anything other than unremarkable. We are satisfied that he had an established habit of consuming alcohol well prior to his deployment on operational service in September 1956….
43. When considering the events experienced by your late husband while on operational service, we were not satisfied that, from an objective perspective, they constitute a life threatening event, or an event that could be objectively assessed as exposing him to death or serious injury.
44. There is no evidence before us that your late husband experienced or witnessed an event that involved actual or threatened death or serious injury, and he was not confronted with any such event. Not surprisingly, he may have been concerned and fearful for his safety while on duty in the ship’s magazine during the periods of his operational service, but we are not satisfied that any of the situations described come within what may constitute a traumatic event.
45. We have considered whether your late husband’s operational service of 22 days may have provided a material contribution to his overall alcohol consumption and we are not satisfied that it did.”
ISSUES
The issue to be determined is whether the veteran’s death was war-caused. As explained below, the Tribunal must determine if the material presented raises a reasonable hypothesis that the veteran’s death was war-caused by reference, in this matter, to Statement of Principles (SoP) No. 53 of 2014 – Malignant Neoplasm of the Prostate.
As explained above, the Applicant relies on Factor 6(d), namely:
“(d) drinking at least 200 kilograms of alcohol within any ten year period within the 20 years before the clinical onset of malignant neoplasm of the prostate.”
LEGAL OVERVIEW
It is not contested that the veteran rendered operational service for 22 days between 21 September 1956 and 13 October 1956 when serving on HMAS Sydney and attached to the Far Eastern Strategic Reserve.
Part II of the Act applies where, inter alia, the death of a veteran was war-caused and the Commonwealth is liable to pay pension, by way of compensation, to the dependants of the veteran – s 13(1).
A reverse criminal standard of proof is prescribed in s 120(1) and (3) where a veteran has rendered operational service.
In Elliott v Repatriation Commission (Elliott) (2002) 73 ALD 377, Stone J made the following observation (at [3]/379):
“The Act is strongly biased in favour of a veteran’s claim that incapacity from an injury or disease relating to operational service is war-caused.”
The same degree of bias is also evident in cases where a death of a veteran is war-caused and a claim for pension is made by a dependant of the veteran.
Before turning to the reverse criminal standard of proof, it should be noted that the SoP regime explained below applies to all service rendered under the Act – ss 120A–120B. There are, generally, two SoPs prescribed for each compensable condition – a reasonable hypothesis SoP (s 120A) and a balance of probabilities SoP (s 120B). In all, or almost all instances, the Factors prescribed in a reasonable hypothesis SoP are more generous than those prescribed in the comparable balance of probabilities SoP.
A member of the Defence Forces who has rendered continuous full-time service in an operational area, as specified in s 6C(1) of the Act, is taken to have rendered operational service in the operational area. The term “operational area” is defined in s 5B(1) as an area described in column 1 of Schedule 2 of the Act during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1.
For the purposes of the Act, the death of a veteran is taken to be “war-caused” if, inter alia:
the death resulted from an occurrence that happened while the veteran was rendering operational service – s 8(1)(a); or
the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran – s 8(1)(b).
Subsection 8(1)(a) refers to an “occurrence”. The comparable provision in the Repatriation Act 1920 was considered by the Full Federal Court (Bowen CJ, Brennan and Lockhart JJ) in Repatriation Commission v Law (1980) 31 ALR 140 (Law). The Full Court made the following observations (at 149 – 150):
“Section 101(1)(a) confers entitlement to a pension upon the death of any member of the forces who was employed on active service and whose death has ‘resulted from any occurrence’ that happened during his period of service. An entitlement is not conferred by para (a) unless there has been an ‘occurrence’, there is a relationship between that occurrence and the death (a relationship expressed by the phrase ‘resulted from’), and there is a temporal coincidence of the occurrence with the period of service. Toohey J held there was no entitlement under para (a) because there was no ‘occurrence’. In particular, he held that neither the commencement of smoking nor the formation of the smoking habit was an ‘occurrence’ within the meaning of para (a)…
The word ‘occurrence’ is not defined by the Act. The Oxford English Dictionary defines the word ‘occurrence’, so far as relevant, as ‘something that occurs, happens, or takes place; and event, incident.’
In our opinion, the world ‘occurrence’, in the context of para (a), refers to the event, incident or mishap causing incapacity or death…It is an event, incident or mishap which is susceptible of differentiation from the course of events which constitute the ordinary course of life.
Counsel for Mrs Law submitted that ‘occurrence’ may be understood in its plural sense (s 23 of the Acts Interpretation Act 1901) and thus enables one to identify the repeated acts of smoking that took place during war service as ‘occurrences’.
We do not regard the repeated acts of smoking during Mr Law’s war service as answering the description of an ‘occurrence’ or, for that matter ‘occurrences’. The smoking of a cigarette, or an indeterminate number of cigarettes over a period of years, during Mr Law’s war service, does not fairly answer the description of an ‘occurrence’ or ‘occurrences’.
Alternatively, counsel for Mrs Law submitted that it was the formation of the habit of smoking during enlistment that was the ‘occurrence’. One cannot describe the formation of the habit of smoking by Mr Law during his period of war service as an ‘occurrence’.
Subparagraph 8(1)(b) refers to a war-caused death which “arose out of, or was attributable to” eligible service rendered by a veteran.
The phrase “arising out of” was also considered by the Full Court in Law and the following observations were made (at 150):
“In s 101(1)(b) the words ‘arising out of’ require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause.
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’.”
Next, the Full Court considered the phrase “is attributable to” and made these observations (at 151):
“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.”
This approach has been subsequently endorsed by the High Court in Roncevich v Repatriation Commission (2005) 222 CLR 115.
Nonetheless, there must be a causal connection with defence service, rather than simply a temporal connection: Repatriation Commission v Tuite (1993) 39 FCR 540 (“Tuite”). Davies J made the following observations (at 541 – 542):
“…if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates. See Marshall v Minister of Pensions [1948] KB 106 at 110…
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
It is not contested that a claim under Part II that relates to operational service rendered by a veteran is assessed by reference to a reasonable hypothesis Statement of Principles (SoP) – s 120A(1)(b)(ii).
Subsection 120(1) provides, inter alia, that where a claim for a pension under Part II is made in respect of a war-caused death from operational service, the Respondent shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
It should be noted that s 120(1) does not create a presumption that the death was war-caused, nor does it impose an onus on a veteran to prove that it is – Repatriation Commission v Deledio (1998) 83 FCR 82 at 98.
Subsection 120(3) then outlines one circumstance where the Commission is required to find that there is “no sufficient ground” for the purposes of s 120(1) and (2). The Commission is required to find that there is no sufficient ground that a death was war-caused if:
“after consideration of the whole of the material before it, [the Respondent] 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.”
This subsection was explained in Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell) by Mason CJ, Deane and McHugh JJ (at 413-414) as follows:
“Notwithstanding the submission of counsel for the Commission, s. 120(3) is not exhaustive of the content of s. 120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact…
The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some material fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.”
In East v Repatriation Commission (1987) 16 FCR 517 (at 532), the Full Federal Court observed that the relevant hypothesis must “find some support” in the evidence adduced and that the evidence must “point to, and not merely leave open” the hypothesis relied upon.
The difficulties inherent in ascertaining from the evidence adduced, particularly that of a medico-scientific nature, the existence of a causal connection between service and the death of the veteran, was addressed by the insertion of s 120A. The purpose of this section is to provide a sound and consistent basis for determining the reasonableness of a hypothesis from a medical/scientific perspective.
Subsection 120A(3) relevantly provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting… a disease contracted by 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);…”
Similarly s 120B(2) is the comparable provision for reasonable satisfaction matters.
Section 196A establishes the Repatriation Medical Authority (the Authority). The main function of the Authority is to determine SoPs – s 196B(1).
If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out:
·the Factors that must exist; and
·which of those Factors must be related to the service rendered by the veteran,
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 – s 196B(2).
A Factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in s 196B(14).
It is helpful in this context to set out the following observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 (at 275):
“it is necessary to repeat that the SoP has no function in relation to proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to ‘provide the template within which the individual claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
Therefore when s 196B(2) says a factor ‘must…exist’ and ‘must be related to service’, it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i)contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.”
The methodology to be adopted in reaching a decision mandated by ss 8, 13 and 120 as to whether an injury or death is “war-caused” was explained on appeal by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) as follows (97 – 98):
“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 (II)..
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 s 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…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.”
The Deledio methodology is a helpful tool but is clearly not a substitute for complying with the requirements of the Act. To apply the Deledio methodology in a mechanistic manner and without proper regard to compliance with the Act would lead a decision-maker into error: Dunlopv Repatriation Commission [2003] FCAFC 201 at [33], Hardman v Repatriation Commission [2005] FCAFC 83 at [32]. In Hill v Repatriation Commission [2005] FCAFC 23 the Full Court made the following observations (at [80]):
“In general, it is a salutary practice for the AAT to follow the Deledio steps because by doing so it is less likely to overlook an hypothesis that is fairly raised by the material and must therefore be considered. On occasion, a failure to follow those steps may give rise to an error of law…However, in our view, a failure to follow the Deledio steps will not of itself give rise to an error of law, and certainly will not do so in all cases. Of course, and in any event, even if an error of law is demonstrated it does not necessarily follow that the decision must be set aside.”
It is important to highlight this caveat as the suggestion made by the Full Court in Deledio that if there is no SoP then the application must fail has been recognised as being incorrect – Woodward v Repatriation Commission [2003] FCAFC 160 at [55]. If there is no SoP then the question of causation falls to be determined under s 120(1) and (3) rather than s 120A – Repatriation Commission v Hancock [2003] FCA 711 at [10] (Hancock).
There are antecedent inquiries required of the Tribunal before applying the Deledio methodology which were explained by the Full Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280 (“Collins”) as follows (284 – 285):
“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:
1.whether the claimant was a veteran, or a dependant of a deceased veteran;
2.whether the veteran has suffered an injury or disease or has died..; and
3.…the cause of death or the ‘kind of death’ of the veteran..
those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”
THE HEARING
A Hearing was convened in Brisbane on 9 February 2021. Due to the social distancing requirements flowing from the COVID-19 pandemic, the Hearing was conducted via Microsoft Teams.
The Applicant was represented by Mr A Hornby and the Respondent by Ms J MacDonald.
The Applicant appeared and gave evidence and was cross-examined. No other witnesses were called either by the Applicant or the Respondent.
CONSIDERATION
Preliminary Issues
As explained in Collins, it is necessary to deal with certain antecedent threshold issues.
As noted previously, it is not contested that the Applicant is the widow of the veteran who rendered operational service whilst serving onboard HMAS Sydney from 21 September until 13 October 1956.
It is also not contested that the veteran died on 28 August 2001 and that his Death Certificate lists his cause of death as “Cancer of prostate” – Exhibit 1 T11 p. 44.
However, the cause of death for the purposes of ss 120 and 120A requires an inquiry into the ‘kind of death’ suffered by the veteran – s 120A(4). The importance of resolving this question was explained by Selway J in Hancock as follows (at [11]):
“The Tribunal, faced with the evidence of Dr Betty should have proceeded as follows:
(a)First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.
(b)Next, the Tribunal was required to determine on the balance of probabilities what ‘kind of death’ Mr Hancock had suffered. This involved the identification, on the balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.
(c)If one or more statements of principles were applicable, then the methodology of Deledio is applicable in relation to those ‘kinds of death’.
(d)If only a determination under s 180A(2) is applicable, then the application must fail.
(e)If no SoP and no determination is applicable at all or to a particular ‘kind of death’, then the methodology in Byrnes is applicable in relation to that.”
It is also not contested that the veteran’s ‘kind of death’ was malignant neoplasm of the prostate and, accordingly, the relevant SoP is No. 53 of 2014.
Having dealt with the antecedent inquiries, the issue before the Tribunal is whether the veteran’s death was “war-caused”.
Deledio Methodology – First Step
The first step of the Deledio methodology is aimed at ensuring the proper application of s 120(3). At this initial stage the Tribunal does not engage in a fact-finding exercise.
The Tribunal is only required to be reasonably satisfied that the hypothesis raised has some support in the material, and that the material points to, and does not merely leave open, the hypothesis being relied upon. Moreover, as Mortimer J pointed out in Forrester v Repatriation Commission [2013] FCA 898 (at [30]), whether that material points to or supports a hypothesis can be determined by inference or assumption.
In this matter the hypothesis raised by the Applicant that links the veteran’s death with his operational service is as follows – Exhibit 1 para 26:
(a)the veteran enlisted at 19 years of age and was exposed to a RAN service culture, peer group pressure and available cheap alcohol. Consequently, the veteran started to drink and further into his service experienced operational service in South East Asia;
(b)the veteran feared for his life when called to action stations and he consumed alcohol to mask his underlying anxiety;
(c)whilst on operational service the veteran was given an extra ration of alcohol;
(d)having developed a drinking habit to mask his fear of being blown up or drowning, the veteran continued to consume alcohol post-service until he ceased drinking in 1999-2000.
It is not contested by the Respondent that Step 1 is met – Exhibit 2 para 65.2.
Second Step
If Step 1 is met the Tribunal must then ascertain if there is an applicable SoP determined under s 196B(2).
It is not contested that the applicable SoP having regard to the veteran’s kind of death is No. 53 of 2014 – malignant neoplasm of the prostate.
Third Step
Introduction
The third step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. This requires the Tribunal to ascertain if the hypothesis “fits” or is “consistent with” the “template” in SoP No. 53 of 2014.
The Tribunal does not engage in a fact-finding exercise at this stage of the inquiry. The Full Court in Repatriation Commission v Knight (2012) 202 FCR 451 (“Knight”) explained as follows (453/[5]):
“Consistently with the meaning of the word ‘hypothesis’ this inquiry was not to involve the Tribunal in fact-finding about the material before it. Instead, the Tribunal was simply to examine that material to see if such a hypothesis might reasonably drawn from it.”
The practical implication of this was explained by Emmett and Allsop JJ in Bull v Repatriation Commission [2001] FCA 1832 (at [21]):
“There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters…”
When applying the Deledio methodology, the issue of “reasonableness” arises in both Steps 1 and 3. The Tribunal is required to assess reasonableness from both a factual and a medical/scientific prism. Assistance is obtained from the following observations of Mortimer J in Forrester (at [32]):
“The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…”
It is not necessary for every element of a hypothesis to be supported, or pointed to, by the material before the Tribunal. Only the essential elements of the hypothesis must be addressed – Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352 at [59]/364 (Ellis).
However, it is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met. The material presented must raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran – Ellis at [63]/365.
As the Full Court pointed out in Knight, step 3 entails a two-stage process (at [8]):
“There were therefore two discrete issues at play when the Tribunal came to consider whether there was a reasonable hypothesis. The first was the determination whether the material before the Tribunal pointed to the factor relied upon (ie exposure to tobacco smoke: cl 6(i)). The second was to ask whether the material also pointed to the factor having been contributed to in a material degree, or aggravated by, the veteran’s service (that is, the question posed by cl 5 of the Statement and s 196B(14)(d).”
In this matter the first issue is whether the material presented points to the veteran having drunk at least 200 kg of alcohol within any ten year period within the 20 years before the clinical onset of malignant neoplasm of the prostate – cl. 6(d) of SoP No. 53 of 2014.
If the material points to this Factor, then the second issue is whether Factor 6(d) is related to the operational service rendered by the veteran – cl. 6 of SoP No. 53 of 2014.
First, the Respondent concedes, on the basis of the evidence given by the Applicant at the Hearing, that the requirements of Factor 6(d) are met – Respondent’s Written Submissions (RWS) para 22.
Second, the Respondent contends that even if the Tribunal is satisfied that cl. 6(d) is met, the evidence does not support a connection between his operational service and alcohol consumption, namely – Exhibit 2 para 72.2.1:
(a)the veteran only served 22 days of operational service in 1956;
(b)there is no sufficiently probative evidence about the veteran’s alcohol consumption before or during his operational service;
(c)the Applicant informed the Board that by the time of the veteran’s operational service, he had already established a drinking habit; and
(d)the Applicant concedes that any contention that the veteran suffered from alcohol abuse disorder is not supported by the evidence before the Tribunal.
The first task, then, is to focus on the requirements of SoP No. 53 of 2014.
Statement of Principles No. 53 of 2014 – malignant neoplasm of the prostate
“Malignant neoplasm of the prostate” is defined by cl. 3(b) of SoP No. 53 of 2014 in the following terms:
“a primary malignant neoplasm arising from the cells of the prostate gland. The definition excludes prostatic intraepithelial neoplasia, soft tissue sarcoma, carcinoid tumour, non-Hodgkin’s lymphoma and Hodgkin’s lymphoma.”
The term “death from malignant neoplasm of the prostate” is defined in cl. 9 of SoP No. 53 of 2014 as including:
“death from a terminal event or condition that was contributed to by the person’s malignant neoplasm of the prostate.”
As explained above, the Applicant relies on Factor 6(d). In that regard “alcohol” is defined by cl. 9 as being measured by:
“the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink.”
Clinical Onset
The term “clinical onset” is not defined in the SoP, but it has been the subject of extensive Tribunal and Federal Court jurisprudence: Repatriation Commission v Cornelius [2002] FCA 750 at [26], Lees v Repatriation Commission (2002) 125 FCR 331 at 335 – 336. It is not disputed that clinical onset of a disease occurs either:
(a)when the veteran becomes aware of some feature of symptom which enables a doctor to say the disease is present at that time; or
(b)when a finding is made on investigation which is indicative to a doctor of the disease being present.
It is not contested that the date of clinical onset of the veteran’s malignant neoplasm of the prostate is July 1991 – Exhibit 2 para 65.1; Respondent’s Written Submissions (RWS) para 20; Exhibit 4 T5 p. 23.
Alcohol Consumption
The Respondent contends, and the Tribunal accepts, that as clinical onset was July 1991, to meet Factor 6(d) the veteran must have consumed at least 200 kg of alcohol within any 10 year period between 1971 and 1991 – RWS para 20. This equates to a consumption of an average of at least 5.5 standard drinks per day – RWS para 19.
In an Alcohol Questionnaire dated 24 August 2019, the Applicant stated that the veteran consumed 7 – 8 standard drinks every day of the week from October 1956 until December 1998 – Exhibit 4 T13 p. 56.
In the Alcohol Questionnaire the Applicant provided the following more detailed information about the veteran’s drinking habits – Exhibit 4 T13 p. 55:
“He started with 1 – 2 standard drinks [per] day x 1 – 2 days per week (full strength beer) + spirits.
At the height of his drinking soon after coming home from operational service in Asia he was drinking 7 – 8 glasses of beer and usually 2 – 3 shots of spirits every other day.
This my husband did for many years (the habit of drinking) until family pressure finally persuaded him to give up.”
At the Hearing the Applicant testified that when she first met the veteran in 1965 he was a “social drinker” but “in the ‘70s, the late ‘70s, and in the ‘80s he got worse and worse and worse, and then in the ‘90s I had to admit him.” – Tr. 9.2.2021 pp. 8 – 9.
The Applicant also clarified her Alcohol Questionnaire statement, and testified that it “normally would be every day” in “the ‘70s and ‘80s and ‘90s” that the veteran would drink 7 – 8 glasses of beer and 2 – 3 shots of spirits – Tr. 9.2.2021 p. 16.
The Tribunal observed the Applicant give evidence and formed the view that she was a witness of credit. There is no reason to doubt her account of the veteran’s drinking habits during the time that they lived together.
The Respondent, quite properly, concedes on the basis of the Applicant’s evidence that the requirements of cl. 6(d) of SoP No. 53 of 2014 are met – RWS para 22.
The Tribunal is, therefore, satisfied that the evidence supports that the quantity of alcohol consumed by the veteran as required by Factor 6(d) in the time periods specified has been met.
Relation to service
The next step is to determine if the evidence points to the veteran’s alcohol consumption being causally related to his service.
At the outset it must be said that the Applicant’s case is based almost solely on her evidence. The only other non-medical evidence presented from a person who knew the veteran is the Affidavit of his daughter, Ms Samantha d’Arcy Ilic of 19 July 2020 – Exhibit 5.
The veteran passed away 20 years ago. Whilst he was alive he did not record his drinking history. The Tribunal has not been presented with any material from his service years relating to his alcohol consumption. In particular, there is no evidence from any other person who served with him, or from any members of his family who were aware of his drinking habits before, during and shortly after serving with the RAN. In short, from the time of the veteran’s birth until the time he first met the Applicant in late 1965 there is an absence of any material on his drinking history.
As previously noted, the veteran made a claim for a disability pension in 2000. Apart from bilateral sensorineural hearing loss with tinnitus, the veteran also raised his condition of malignant neoplasm of the prostate. However, no material was produced, or issue raised, by the veteran, concerning consumption of alcohol in relation to his prostate cancer – Exhibit 4 T7 pp.25 – 33.
It is important to note that the Respondent has not raised any issue with respect to the Applicant’s evidence nor does it dispute or make any evaluative judgment on the Applicant’s testimony – RWS para 25.
Having listened carefully to the Applicant’s testimony, the Tribunal was impressed with her evidence and she clearly was a witness of credit. It is important to record this, as the ultimate finding made by the Tribunal in no way casts any negative aspersions on the Applicant or her evidence. The ultimate finding of the Tribunal flows inexorably from the lack of primary evidence to support the causal link to service required by the SoP.
The Applicant’s evidence about the veteran’s drinking habits come from conversations she had with him from Christmas 1965 and observations she made – Exhibit 4 T13 p. 56.
The Applicant testified that the veteran told her “he loved the navy, absolutely loved his time in the navy.” The veteran would have visits from his “navy mates” and “they would talk about their experiences…” and “swap yarns”. The Applicant noticed that when the veteran talked with his naval comrades about their navy experiences “he’d get upset” – Tr. 9.2.2021 pp. 10 – 11.
In the Alcohol Questionnaire, the Applicant provided this information – Exhibit 4 T13 p. 56:
“My husband stated he started to drink soon after enlistment to be one of the boys, peer group pressure and the readily available cheep [sic] alcohol on base.
My husband told me about life on board ship and when he served on operational service how his drinking increased because of the heighten [sic] awareness of warlike activities and the issue of extra rum ration and beer during his off duty periods on board ship (boredom). My husband always drank Beer daily and on top of the beer he drank spirits every other day.”
With respect to the veteran’s operational service, the Applicant provided this information – Exhibit 4 T16 p. 61:
“My husband drank alcohol [at] the beginning of his service for a number of reasons as previously stated and his consumption increased when on board ship when they sailed to South East Asia a known hot spot. From conversations with my husband could tell that this wasn’t a boys own adventure. He felt it was the real deal and that he perceived that harm could come his way. He drank more to cope and ease the anxiety that he was experiencing whilst in the SE.”
In a statement dated 30 January 2020, the Applicant expanded on the type of stress the veteran experienced whilst on operational service – Exhibit 4 T19 p. 77:
“To the best of my recollection from many conversations and observations my husband Bill was a ship wright in the Navy as with all Navy personnel he had secondary duties.
In Bill case [sic] he was to proceed to the magazine to distribute various types of ordinance’s this was done when he was called to action.
Bill rarely talked directly about the effect it had on him but I can say that on many occasions when he had a day of particularly heavy drinking, in his drunken state he would ramble on about being blown to pieces should a torpedo hit the ship. Even worse for Bill was recalling that he would drown. This was a recurrent theme which effected [sic] Bill greatly. Bill also had the odd (not to [sic] frequent) nightmares. When I woke him and quizzed Bill it was always about drowning.
Bill told me that when he was called to action he did not know if it was practice or the real deal (only being told after the fact) this I assume was to create realism.
Bill was a young man and saw the Navy as a way to get out of town and that of a boys own adventure. I don’t think he realised until faced with the fear of dying the true consequences of serving on a warship.
The fact that Bill didn’t see any action as such did not diminished [sic] the fear of death and that of dying a horrible death.”
At the Hearing the Applicant expanded on what she meant when she referred to the veteran’s heightened awareness of warlike activities whilst he rendered operational service – Tr. 9.2.2021 p. 20:
“He used to say basically he never knew whether he would drown. He’d have the nightmares about the drowning, and/or whether the ship would be blown up, things like that. It was the heightened awareness of that. I presume the guns were going boom, boom.”
The only other direct evidence of the veteran’s drinking habits is an Affidavit dated 19 July 2020 from his eldest daughter, Samantha d’Arcy Illic. Ms Illic provided the following information – Exhibit 5:
“For as long as I remember my dad was a very heavy drinker. He drank on a daily basis – he mainly drank spirits and beer (scotch, whiskey, etc). He always had an alcoholic drink in his hand. I couldn’t say how much he drank but in my opinion he was an extremely heavy drinker. He drank through the night and day and I know his sleep was affected. The alcohol affected his life and his behaviour as he couldn’t seem to function without the alcohol to support him…”
Attention must be given to s 196B(14) which provides that a Factor causing, or contributing to, an injury, disease or death is related to service rendered by a veteran if one or more of the circumstances outlined in paragraphs (a) to (g) of s 196B(14) apply.
It is tolerably clear that s 196B(14)(a) is not applicable to the facts in this matter. Paragraph 196(14)(a) applies where a death is related to service rendered by a veteran if it resulted from an occurrence that happened while the veteran was rendering that service.
As explained by the Full Federal Court in Law (at 149), an “occurrence” “refers to the event, incident or mishap causing incapacity or death.”
The evidence before the Tribunal does not disclose a particular event, incident or mishap which occurred whilst the veteran rendered operational service in 1956. As the Applicant has explained, the veteran was upset, and, perhaps, traumatised, by the ongoing tense atmosphere on board HMAS Sydney. The Tribunal does not doubt that operational service would have very stressful, and it appears that the veteran continued to experience nightmares for many years after he rendered that service. Nonetheless, there is no evidence of a discrete event, incident, mishap or series of such occurrences which befell the veteran when he was rendering operational service.
Further, the evidence of the Applicant is, understandably, very general and sometimes based on assumptions. For example, when I asked the Applicant if the “action stations” drills which traumatised the veteran occurred on a regular basis, her reply was – Tr. 9.2.2021 p. 19:
“Well, I assume it was a regular thing, when they were over there.”
The Applicant answered honestly, and it is not surprising that she is not sure of the specific details of the veteran’s operational service having regard to the fact that it occurred nine years before she first met him and she is reliant entirely upon his recollections, some of which occurred when he was under the influence of alcohol.
It is tolerably clear that the relevant paragraph in this matter is s 196B(14)(b) which provides that a death is related to service if:
“it arose out of, or was attributable to, that service”.
Before turning to this paragraph, the Respondent made the following important submission – RWS para 30:
“The question of whether or not operational service is stressful is not in issue, and that is not the criteria which the Tribunal is to have regard to. It is not a question of whether a stressor happened, but whether there was a change to the veteran’s drinking during his operational service, and a question of what led to that change.”
With one caveat, the Tribunal agrees with this submission. The existence of a “stressor” may well be a critical factor when considering s 196B(14)(a), particularly if the stressor constitutes an “occurrence” and this occurrence points towards a veteran consuming alcohol or increasing the consumption of alcohol. However, even with respect to paragraph (a), the occurrence does not stand on its own. The existence of an “occurrence” must relate back to the Factor or Factors in consideration.
Turning now to s 196B(14)(b), reference has already been made to Tuite. However, it is apposite to set out in greater length some of the helpful observations made by the Full Court in that case.
This much quoted case involved the issue of whether the veteran’s smoking habit, and consequent development of emphysema and gastric ulcer, arose out of, or was attributable to, his war-service. Davies J made the following observations (at 541 – 542):
“The words of s 9(1)(b) require that there be a causal connection between the eligible war service and the disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease: see Repatriation Commission v Law (1980) 47 FLR 57 at 67-68.
Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9(1)(b), but not under ss 9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates’. See Marshall v Minister of Pensions [1948] KB 106 at 110; W v Minister of Pensions [1946] 2 All ER 501 at 502; Minister of Pensions v Chennell [1947] KB 250 at 256. An illustration of the point may be found in Goward v Commonwealth (1957) 97 CLR 355 where Dixon CJ, Williams, Webb and Kitto JJ held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause. Their Honours said (at 364):
‘It is correct no doubt that if the camp had not been near a railway line and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.’…
If the circumstances of the eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
Burchett and Einfeld JJ reached the same conclusion and made the following observations (at 544 – 545):
“The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was ‘something within the applicant’s military service which has caused him to start smoking’. It accepted his evidence that he had not smoked before, ‘and that it was the circumstances whilst he was in camp that caused him to start to smoke’. The Tribunal added: ‘Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military’. The Tribunal pointed out that the respondent ‘was in a milieu totally different to that which he had experienced before his call-up’. (It appears that he was actually a volunteer).
We are unable to find anything suggestive of error in this reasoning. It was for the Tribunal to decide whether it accepted the evidence of the respondent. Nothing seems to have been put before it to contradict that evidence, nor was the respondent seriously challenged in cross-examination. Apart from the matters specifically mentioned in the Tribunal’s reasons, there were indeed other things adduced in evidence which tended to the same conclusion. The boredom of life in camp clearly emerges from the respondent’s account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction…”
Reference can also be made to Cairns and Repatriation Commission [2013] AATA 742. That was also a matter where the question of the veteran’s alcohol consumption was of critical importance. The veteran’s widow in that case claimed a widow’s pension on the basis that her husband’s death from vascular dementia was related to his World War Two service in the RAAF. The veteran was trained as a tail-gunner on B-24 aircraft and enlisted when he was only 18 years of age. He commenced drinking after he enlisted and his habit continued throughout his life. The Applicant in this matter only met the veteran in 1959 and they married in 1960. The Applicant had no direct knowledge of the veteran’s drinking habits prior to 1959, and stated that the veteran moderated his drinking after they were married. After 1960 the veteran only drank on a weekend and in conjunction with social events. There was no evidence that the veteran abused alcohol in response to stress or to self-medicate. The Applicant stated that the veteran did not speak much of his war-time experiences and he never said that he was drinking because of his war service.
The Tribunal was not satisfied that there was a reasonable hypothesis connecting the circumstances of the veteran’s service with his death. The following reasons were given (at [8]):
“8. While there is evidence that is capable of establishing the veteran experienced stress during the course of his service (see, for example, the historical report of Dr A. Palazzo), and there is evidence that he began to drink more heavily at the same time, there is no evidence pointing to a causal connection between those two events. There are certainly a number of other possible explanations for the increase in alcohol consumption during service: the high temperature and humidity in the remote locations where the veteran was based, boredom, peer-group pressure and camaraderie might all have played a role. Mr Harding argued we could readily infer a connection between the consumption of alcohol and the stress: he noted the Court in Bull acknowledged (at [40]) ‘People who experience stress sometimes cope by consumption of alcohol.’
9. We agree there is often a connection between stress and circumstances on the one hand and alcohol consumption on the other….But there is nothing on the material in this case suggesting there is anything other than a temporal connection between the circumstances of Mr Cairn’s service and his pattern of alcohol consumption. In those circumstances, we are unable to identify material that points to a key part of the hypothesis.”
The undisputed evidence before the Tribunal is as follows:
(a)the veteran commenced consuming alcohol from the time he enlisted in the RAN – Exhibit 4 T13 p. 55;
(b)initially the veteran consumed 1 – 2 standard drinks one or two days per week – Exhibit 4 T13 p. 56;
(c)the veteran started drinking due to peer group pressure and the ready availability of cheap alcohol -- Exhibit 4 T13 p. 56;
(d)the veteran’s drinking habit increased over time, and by January 1956 he was drinking 1 – 2 standard drinks three to four days each week – Exhibit 4 T13 p. 56;
(e)the veteran’s consumption of alcohol increased during operational service to 6 – 7 standard drinks each day of the week – Exhibit 4 T13 p. 56;
(f)after completing operational service the veteran’s drinking habit got worse, and he was then drinking 7 – 8 standard drinks each day of the week – Exhibit 4 T13 p. 56; and
(g)the veteran’s drinking habits remained at this level until approximately December 1998 – Exhibit 4 T13 p. 56.
The evidence presented by, and on behalf of, the Applicant has a number of difficulties:
(a)the Tribunal has been provided with no primary evidence from the veteran or any person who served with the veteran;
(b)the Tribunal has not been provided with any detailed secondary evidence of the operational service rendered by the veteran on HMAS Sydney or any of the other years he served with the RAN;
(c)the Applicant first met the veteran in approximately December 1965, nine years after his operational service and eight years after his discharge from the RAN;
(d)the Applicant has no personal recollections of the veteran’s service and all of her evidence about his service is based on what she was told;
(e)the only other primary evidence was that of the veteran’s eldest daughter, Ms Ilic, and she could only provide her memories of her father’s drinking habit when she was growing up which would have been more than 20 years after his discharge from the RAN;
(f)the Tribunal has been presented with evidence that suggests that the veteran was a drinker from 1951 until 1998, a period of some 47 years, but his operational service was only for 22 days in 1956.
Having set out the factual matrix presented, the key question is whether a reasonable hypothesis has been raised linking the veteran’s alcohol consumption to his 22 days of operational service. It must be again emphasised that this inquiry entails no question of fact finding. Indeed, the Tribunal at this stage is entitled to make assumptions about the existence of facts – Repatriation Commission v Stares (1996) 66 FCR 594 at 600-601, Elliott at [5]/379.
The Full Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 made the following observations (372 – 373):
“…the mere possibility of a connection between a disease and war service is sufficient to constitute a ‘’reasonable hypothesis’ on the ground that any hypothesis is no more than a possibility…While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker…
A ‘reasonable hypothesis’ involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”
The Respondent makes the following submission based on the evidence presented – RWS para 38:
“In this application, there is less evidence before the Tribunal than in Elliott and Bey, with no direct evidence to assist it in establishing any connection to service. The only evidence available to the Tribunal is from the applicant, who didn’t know the veteran at the relevant time and only met him some nine years after his operational service. As a result, and without commenting in any way on the applicant’s credibility, her evidence is necessarily speculative at best. The hypothesis is missing those ‘essential’ elements that are required to point to a connection between the veteran’s operational service and his post-service alcohol consumption…There is no specific event that can be pointed to by the applicant, nor any witness that can speak to that operational service, being the veteran or any of his crew mates. On the material before the Tribunal, the hypothesis cannot rise higher than assertion, which the Full Court concluded in Cameron is not enough…”
The decision of Cameron v Repatriation Commission [2003] FCA 1323, which is referred to by the Respondent, is not a decision of the Full Court but of Allsop J (as he then was).
In that case the hypothesis put forward was that the deceased veteran’s war-caused chronic bronchitis gave rise to periodic bouts of pneumonia, the latest of which developed shortly before his death. It was put that the veteran’s pneumonia debilitated him and made him unable to properly react to an oncoming car which subsequently hit and killed him.
The Coronial inquest found that the dark clothing worn by the veteran, his level of intoxication and the fact that the area where the accident occurred was not well lit, all contributed to the accident – at [23].
There was a divergence of medical evidence with one Doctor opining that it “was more likely than not” that the veteran’s pneumonia was “accompanied by fever” and that “fever itself is sometimes associated with mental confusion called delirium” – at [27].
Conversely another Doctor opined that although the veteran had chronic bronchitis there was “absolutely no objective data whatsoever to support the theory that he had a fever at the time of the accident.” Moreover, this Doctor observed that “suggesting that a fever impaired his judgment is fanciful and not consistent with any of the known facts apart from the fact that the post mortem reports pneumonia…” – at [30].
The Tribunal in that matter provided the following reasons for not accepting the Applicant’s contentions (at [39]):
“39. It could not be said that the ‘most likely explanation’…for the Veteran being struck by the vehicle is the symptoms of his pneumonia. There is no material, other than the assertions of Dr Burns, that points to the Veteran being confused or delirious. Indeed there is a body of material that points away from it. The Inquest into his death concluded that there were a number of other reasons for him having been struck by the vehicle including his level of intoxication, his dark clothing and the poorly lit street. This alone, however, does not prevent the hypothesis from being found to be reasonable.
40. However, it should be noted that two witnesses to the inquest have the Veteran running across the road, presumably after he saw the vehicle. Most notably, the Veteran had, notwithstanding his illness, left his home on three occasions that day: first, on foot for about one hour, to attend to an errand; second, again on foot, to consume an amount of alcohol over approximately one and a half hours sufficient to give him, after a lapse of more than two hours, a blood alcohol reading of 0.2 percent and: third, to attend the hotel again, and presumably to return on foot, in order to purchase more alcohol. Commonsense informs that a man with a fever sufficient to cause confusion or delirium would not undertake these activities and nor would he be inclined, as a normally moderate drinker, to consume an amount of alcohol sufficient to give him a reading of 0.2 per cent…
42.Having considered the whole of the material before it, the Tribunal is of the view that there is no material pointing to the Veteran having had, on the day of his death, fever, confusion or delirium of a degree sufficient to impact on his ability to avoid an oncoming vehicle. Rather, there is material before the Tribunal which points to the Veteran being sufficiently well to leave his home on three occasions, twice on foot, and to consume enough alcohol to produce a blood alcohol reading of 0.2 per cent.
43. In these circumstances, the Tribunal considers that the material before it is neither consistent with the suggestion that the Veteran was suffering from a fever sufficient to produce delirium or confusion, nor allows that to be assumed. It follows that the hypothesis is not, pursuant to section 120(3) of the Act, reasonable. In the absence of a reasonable hypothesis, the Applicant’s death cannot be found to be war caused.”
Allsop J held that the Tribunal correctly reached a view on all the material that no reasonable hypothesis had been raised. In doing so, his Honour found that the Tribunal had appropriately weighed all the evidence before it and had come to a factual conclusion as to the reasonableness or otherwise of the hypothesis that had been raised by the Applicant – at [46] and [48].
There are some obvious differences between the material before the Tribunal in this matter and that in Cameron. In Cameron there was no material before the Tribunal that the deceased veteran was suffering from a fever other than the assertion of one Doctor who had not treated the deceased veteran on the day of the accident. In short, there was no material before the Tribunal that upheld the hypothesis raised by the deceased veteran’s wife.
In this matter the Tribunal has at least been presented with the Applicant’s recollections of what the veteran told her. The Tribunal in this instance has not been presented with bald assertions which lack all of the essential elements of a reasonable hypothesis. However, the key question to be resolved is whether the material before the Tribunal is sufficient to raise a reasonable hypothesis.
The relevant service which allows the Applicant to rely on the “reasonable hypothesis” SoPs, is the veteran’s operational service in 1956. There must be something arising out of, or attributable to, that service that led to the veteran’s alcohol consumption habit, or, as in this matter, exacerbated that habit thereafter – King v Repatriation Commission [2011] FCA 1436 at [56].
The Tribunal has before it no independent evidence from either any of the veteran’s comrades who served with him on HMAS Sydney in 1956, or from any other person, including, importantly, family members, who could recall the impact that his operational service had on his alcohol consumption. There is, unfortunately, a total absence of any information about the veteran’s life prior to December 1965.
The Tribunal has not been presented with any material prior to the time the veteran first met the Applicant in 1965. The period of the veteran’s service in the RAN between 1951 and 1957 is devoid of any primary evidence. Importantly, there is no material about the impact, if any, that the veteran’s operational service had on his alcohol consumption. Certainly the Applicant is able to recount the stories the veteran told her. It is with no disrespect to her, or her advocate, that her estimates of the amount of alcohol he consumed at particular time periods prior to and after his operational service in 1956, must be regarded as, at best, just estimates. In fact, the Applicant, having not met the veteran until 1965, would not be in a position to provide any realistic estimate of what her husband was drinking a decade or more before she met him.
As in Cairns, the evidence presented suggests that there was only a temporal connection between the circumstances of the veteran’s service and his pattern of alcohol consumption.
As previously noted, the Tribunal formed the view that the Applicant was a witness of credit and there is no reason to doubt the truthfulness of her statements and testimony. Likewise, with the material to hand, Mr Hornby made the best submissions that were possible. Unfortunately, the material presented does not permit the Tribunal to conclude that the Applicant has raised a reasonable hypothesis. Not only is there no primary material supporting the hypothesis, but whilst the veteran was alive he, apparently, never raised his alcohol condition as being related to his service.
The Tribunal therefore finds that the Applicant’s raised hypothesis is not a “reasonable” one in that it does not fit, or is inconsistent with, the template found in SoP No. 53 of 2014.
CONCLUSION
The Tribunal affirms the reviewable decision.
I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
............................[SGD]............................
Associate
Dated: 27 April 2021
Date of hearing: 9 February 2021 Date final submissions received: 9 March 2021 Representative for the Applicant: Mr Anthony Hornby Representatives for the Respondent: Ms Jessica Macdonald and Ms Kate Shedden
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