Dulcie Mavis Bottriell and Repatriation Commission - [2013] AATA 878

[2013] AATA 878

Division	VETERANS' APPEALS DIVISION
File Number	2012/4881
Re	Dulcie Mavis Bottriell
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	9 December 2013
Place	Melbourne

The Tribunal affirms the decision under review.

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

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – widow’s claim – death from ischaemic heart disease and hypertension – whether alcohol consumption contributed to hypertension – clinical worsening of hypertension

Veterans' Entitlements Act 1986 ss 8(1), 9(1), 120(1), 120(3), 120A

Forrester v Repatriation Commission [2013] FCA 898

Martin v Repatriation Commission [2012] AATA 744

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Hill [2002] FCAFC 192

Repatriation Commission v Law (1981) 147 CLR 635

Repatriation Commission v Stares [1996] FCA 396

Repatriation Commission v Tuite [1993] FCA 39

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

G. D. Friedman, Senior Member

9 December 2013

Dulcie Bottriell is the widow of George Bottriell (the veteran) who was born in 1926 and died on 10 June 2010 from ischaemic heart disease (IHD) and hypertension. Mrs Bottriell applied to the respondent for a widow’s pension on the basis that the veteran’s alcohol consumption that commenced during his naval service caused hypertension that contributed to his death. The respondent refused the claim and the decision was affirmed by the Veterans’ Review Board (VRB). Mrs Bottriell seeks review of the decision.

LEGISLATIVE FRAMEWORK

The veteran rendered service in the Royal Australian Navy from 9 January 1945 to 3 March 1947. He served in the New Guinea area of the South West Pacific as a clerk in Madang from 5 April 1945 to 16 December 1945 and from 1 July 1946 to 10 February 1947 in the office of Landing Ship, Tank (LST) 3017, a vessel which was designed to support amphibious operations during World War 2 by carrying significant quantities of vehicles, cargo, and troops, and was deployed to recover Allied equipment such as tanks after the Japanese surrender. The veteran’s task was to keep relevant records. The whole of his service constitutes operational service under the Veterans’ Entitlements Act 1986.
Section 8(1) of the Act provides:
(1)Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
Section 9(1) of the Act states:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…

In Repatriation Commission v Law (1981) 147 CLR 635 and Roncevich v Repatriation Commission (2005) 222 CLR 115 the High Court confirmed that the phrase arose out of, or was attributable to referred to a causal relationship and not merely a temporal one.
The standard of proof in claims made in respect of the death of a veteran relating to operational service is specified in s 120(1) of the Act, which provides that the death of a veteran was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that:
…the Commission shall be satisfied… if… 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… death with the circumstances of the particular service rendered by the person.

Section 120A of the Act provides that, for the purposes of s 120(3) of the Act:
…a hypothesis connecting 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 Statement of Principles (SoP)… that upholds the hypothesis.
In cases where s 120A of the Act applies, the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 set out a four‑step process:
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…
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)….
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…
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 the Tribunal is so satisfied, the claim must fail.

ISSUES

The issues before the Tribunal are:

What is the kind of death suffered by the veteran?
Was the veteran’s hypertension war-caused, and if so, did it contribute to his death?

WHAT IS THE KIND OF DEATH SUFFERED BY THE VETERAN?

In Repatriation Commission v Hancock (2003) 37 AAR 383 at 386 Selway J set out the approach to be followed by the Tribunal:
(a)First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out…
(b)Next, the AAT was required to determine on balance of probabilities what ‘kind of death’ Mr Hancock had suffered. This involved the identification, on 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 SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.
…
In accordance with the approach laid down in Hancock, the Tribunal finds that the pre‑conditions, other than causation, have been made out because Mrs Bottriell’s husband was a veteran, the veteran has died and Mrs Bottriell is his widow. In relation to a determination of the kind of death suffered by the veteran (step (b)), the Tribunal notes that the death certificate states that the cause of death was: Cardiac arrhythmia ventricular fibrillation – sudden; Ischaemic heart disease - 20 years; and Hypertension – 20 years. There was no dispute between the parties that the date of clinical onset of IHD was 1990 and that the veteran suffered from hypertension before the clinical onset of IHD.

WAS THE VETERAN’S HYPERTENSION WAR-CAUSED?

In relation to the Step 1 from Deledio, the hypotheses relied upon by Mrs Bottriell were that the veteran’s hypertension, or the clinical worsening of the condition, were caused by his alcohol consumption and contributed to his death. In particular she relied on SoP Nº 63 of 2013 concerning hypertension. Factor 6 provides:
(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;
…
(r) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical worsening of hypertension;
In paragraph 9 of the SoP:
"alcohol" is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;
To satisfy Step 1 in respect of the hypothesis concerning factor 6(b) the Tribunal must consider whether the material points to:
·the veteran’s alcohol consumption before his service;
·whether there was an increase in drinking during or after service ;
·if so, whether the increase was related to his operational service;
·if so, is a reasonable hypothesis raised?
Mrs Bottriell told the Tribunal that she met the veteran in 1954 (about seven years after his discharge from the navy) and they were married on 29 March 1957. She said that the veteran did not talk much about his war service other than to indicate that he served as a clerk on an LST. Mrs Bottriell said that the veteran never specified to her the date he commenced drinking, although she recalled that before the wedding she and the veteran went out together twice each week and he consumed about two or three glasses of beer while they were out, although she could not be certain. After the wedding she and the veteran moved to St Arnaud in regional Victoria, where they operated a newsagency business until 1965. They then operated a dry cleaning business in Queenscliff, Victoria from 1965 to 1974, and from 1974 to 1985 the veteran was a self-employed sales person in the field of stationery, books and art supplies. From 1985 to 1995 she and the veteran managed holiday apartments on Norfolk Island and they retired in 1995.
She explained that, while living in St Arnaud, the veteran usually drank four or five glasses of beer or up to two bottles (26 oz. or 750 ml. per bottle) at home each day, followed by additional glasses of beer at the local RSL club several times during the week. This practice continued in each place where the couple lived. Over time he changed to wine and she and the veteran shared a bottle of red or white wine each day until his death, although she said that she consumed one or one and a half glasses and the veteran consumed the rest. She said that his consumption increased on social occasions such as when he visited the Geelong Naval Association. Mrs Bottriell agreed that she had no knowledge of whether the veteran drank or increased his consumption during naval service, or the quantity of alcohol that he consumed.
Mrs Bottriell stated that the veteran never mentioned to her any involvement in enemy action, although she said that he indicated that …at times things were a bit dicey, which she understood to refer to the process of collecting volatile material such as ammunition. She stated that she understood that the veteran and his colleagues had little to occupy their time while off-duty, so they spent time chatting, smoking and drinking. She explained that the veteran did not smoke, and may have traded his cigarette ration for alcohol.
Mrs B Miller, the veteran’s sister, told the Tribunal that the veteran spoke little about his war service. She said in a written statement that she was certain that that the veteran was a non-drinker of alcohol before joining the navy because the family would only serve alcohol on rare occasions, and that by the time he returned from his service she had left home and was not in a position to judge his alcohol consumption, although she recalled that on social occasions after the war he enjoyed red wine and consumed up to four glasses. She said that other than peer pressure, she was unaware of any reason for the veteran to commence consuming alcohol during his service in the navy. Mrs Miller agreed that the veteran worked as a telegraph messenger before joining the navy and she clarified her written statement by saying that she could not recall him drinking before his navy service.
Clinical notes filed with the Tribunal by the respondent show that the veteran’s alcohol consumption was recorded as follows:
25 September 1987: <can beer /day (Norfolk Island Hospital)
23 January 1991: Social drinker (Norfolk island Hospital)
3 May 2002: 1 wine per day (Dr Kay)
26 August 2003: 1 Glass/day (Dr Kay)
Dr J McCarthy, historian, stated in a report dated 5 August 2013 that the veteran’s only posting in the South West Pacific was to Madang, New Guinea, on 10 April 1945 as a writer or clerk whose duties included calculating naval pay, keeping a ship’s register and handling correspondence. He returned to Australia on HMAS Kanimbla which sailed on 17 December 1945.
Dr McCarthy stated that there is little information regarding the availability of alcohol in Madang at the relevant time, and the standard ration of two bottles of beer per man per day might not have applied because of a shortage of beer and bottles. In respect of exposure to enemy action, Dr McCarthy said that by 1945 the Japanese submarine offensive against Australian shipping was long over. He added that the Japanese evacuated Madang in March or April 1944 and the RAN Commissioned Shore Establishment where the veteran served in Madang did not come under enemy attack during his service at that location. Dr McCarthy could find no information about the work undertaken by LST 3017 while the veteran was on board in 1946 when he had returned from Madang, other than confirming that the vessel was used to transport equipment and stores, although he stated that sometimes ammunition that had been collected was dumped at sea.
Under cross-examination Dr McCarthy agreed that naval service in Madang at the relevant time may have been boring and unpleasant because of the tropical climate, but he was unable to explain the veteran’s use of the expression …at times things were a bit dicey, which he said was a term that depended on the circumstances relating to an individual’s perspective at a particular time.
Dr M McKernan, historian, stated in a report dated 24 September 2013 that he agreed with Dr McCarthy that supplies of beer to armed services personnel were reduced in the last years of the war, although there was a culture of drinking that was encouraged, and some men drank more than their entitlement and some drank less. He pointed to the lack of direct evidence about the drinking habit of the veteran while stationed in Madang, and said that family values were important in making decisions about drinking, although many young men such as the veteran may have been influenced by factors such as boredom, the availability of alcohol and peer pressure.
Dr McKernan speculated that the veteran’s service might have had its share of stresses, particularly working in small vessels in areas that could be seen as hazardous for a number of reasons. He suggested that there may have been some perception of fear or concern by Australian military personnel that not all Japanese opposition had been eliminated after the Japanese withdrew from the Madang area. Dr McKernan also raised the possibility that the veteran may have perceived danger from transporting potentially dangerous material because some of the equipment may have been in poor condition given the nature of jungle fighting and supply, although he agreed that the records indicate that while in Madang the veteran was performing clerical tasks at a naval establishment before his service on LST 3017 from 1 July 1946 to 10 February 1947.
Professor R Harper, consultant & interventional cardiologist, stated in a report dated 17 April 2013 that the veteran suffered a heart attack in 1990 and died in 2010 from IHD and hypertension. The veteran’s service records show that at a medical examination on 13 April 1944 before enlistment his blood pressure reading was 170/85 and was described as High Blood Pressure of nervous origin. At his discharge medical examination on 12 December 1947 his blood pressure reading was 150/90. Professor Harper concluded that the veteran had suffered from hypertension from at least 1985, but probably from much earlier, because the blood pressure readings noted prior to enlistment in the navy and at discharge were elevated. However he said that two isolated readings are not in themselves sufficient to make a diagnosis of hypertension, and the two readings may have been indicative of labile (borderline or fluctuating) hypertension, particularly in view of the nervous origin noted in the blood pressure reading during the enlistment medical examination.Professor Harper estimated that clinical onset of hypertension was probably 1957 when the veteran was observed by Mrs Bottriell to be using prescribed medication.
In respect of clinical worsening of hypertension, Professor Harper stated that the natural history of hypertension is for it to gradually become worse and require more drug therapy to produce satisfactory control. He noted that in 1985 the veteran was taking two anti-hypertensive agents, and immediately prior to his death he was taking three, which could be seen as a slight worsening of the condition over that time.
In Martin v Repatriation Commission [2012] AATA 744 the Tribunal summarised the case law on the question of reasonableness of hypotheses:
37. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities: East v Repatriation Commission [1987] FCA 242.

38. A “mere possibility” is not sufficient to make a hypothesis reasonable: Repatriation Commission v Bey [1997] FCA 1347; nor is an assumption sufficient to make a hypothesis reasonable: Byrnes v Repatriation Commission [1993] HCA 51

39. Nor is a reasonable hypothesis one that is merely plausible. It may be that its elements are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable”: Bull v Repatriation Commission [2001] FCA 1832.

40. A hypothesis will not be reasonable if it is “is obviously fanciful or impossible or not tenable or too remote or too tenuous”: East (above) at 532. That said, it does not follow, merely because a hypothesis is “not obviously fanciful or not possible, or not incredible or tenable or not too remote or not too tenuous”, that it is reasonable: see Bull (above) at [5]

In Repatriation Commission v Stares [1996] FCA 396 the Full Federal Court said:
The question s 120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran’s injury with war service. ... An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.
In Repatriation v Hill [2002] FCAFC 192 the Full Federal Court stated at [54]:
54. As already noted, the authorities have made the position with regard to ss 120(3) and 120A(3) of the Act clear enough. In Repatriation Commission v Bey (1997) 79 FCR 364 (which did not involve s 120A(3)), the Full Court reiterated earlier observations in East (at 531-32) and in Bushell (at 414) when it said at 372-3:
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.
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at 533.
In Forrester v Repatriation Commission [2013] FCA 898 Mortimer J stated:
28. At the first Deledio step, the authorities are clear that the Tribunal is not to engage in “fact finding”…
29. Nevertheless, the first step in Deledio, requiring the formation by the Tribunal of a view or opinion about the material before it, and a characterisation of that material as “pointing to” or “supporting” the hypothesis advanced, involves some level of factual assessment.
30. Whether material “points to” or “supports” a hypothesis is, of its nature, a matter which can be determined by inference or assumption…: Elliott v Repatriation Commission…[2002] FCA 26 at [5]. In Stares (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. Referring to the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes … the Full Court stated (66 FCR 594 at 601):
By there saying that “the material must point to some fact or facts” their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion.
31. Importantly for the resolution of the issues in this case, the use of the verb “raise” in s 120(3), and the subsequent approach of asking whether material “points to” or “supports” a hypothesis, has been held to require more than that the material before the decision-maker leaves the propounded hypothesis open as a possibility. A possibility of connection between war service and death, injury or disease is not enough: Repatriation Commission v Bey…

In Repatriation Commission v Tuite [1993] FCA 39 the majority in the Full Federal Court found that the circumstances of camp life were capable of having a causal influence on the veteran’s decision to take up smoking.
In respect of the hypothesis relating to factor 6(b) the Tribunal accepts Professor Harper’s evidence that the clinical onset of hypertension was in 1957. The only evidence about the veteran’s drinking habit before his naval service is from his sister, who stated that the veteran did not drink prior to service, and she clarified her evidence to state that she did not observe him to drink. According to Mrs Bottriell’s evidence he was a light drinker (possibly 2-3 glasses of beer on social occasions) when she met him about seven years after service. On all the material the Tribunal concludes that the veteran was a non-drinker or at most an occasional drinker when he enlisted in the navy, and that after service he was a light to moderate drinker, leading to the conclusion that there is a temporal relationship between the veteran’s alcohol consumption and his operational service. As stated in Bull, any increase might be due to a liking for convivial company of former service friends or a simple liking for alcohol consumption after certain activities.
However there is no evidence of the veteran’s level of drinking during service. After considering the evidence from Dr McCarthy and Dr McKernan about conditions in New Guinea during the closing stages of World War 2 and shortly afterwards, the Tribunal notes that there might have been a perception by some Australian service personnel in Madang between April 1945 and December 1945 that individual Japanese soldiers posed a threat despite the Japanese having evacuated Madang in March or April 1944, which may have led to an increase in alcohol consumption. Nevertheless such perception is highly speculative and there is no material to suggest that the veteran expressed or felt such fear, or that he drank or increased his consumption of alcohol as a result. Mrs Bottriell’s evidence that the veteran stated that …at times things were a bit dicey does not assist because that expression has a number of possible meanings and does not show a connection with alcohol consumption. Similarly, any increase in alcohol consumption by service personnel in New Guinea arising from stress caused by the collection of hazardous or dangerous material such as ammunition is no more than a mere possibility in the veteran’s case and is not supported by the evidence.
Mrs Bottriell speculated that the veteran and his colleagues may have been bored during service and that this might have led to them spending time chatting, smoking and drinking, but there is no evidence of this in the veteran’s case concerning drinking, and he was a non-smoker. In Tuite there was direct evidence from the veteran of a causal connection between service and smoking, but there is no evidence to support Mrs Bottriell’s speculation concerning drinking. Similarly the evidence from Mrs Bottriell about the veteran’s alcohol consumption after the marriage (when she was better placed to observe his level of alcohol consumption on a daily basis) does not indicate whether any increase in his drinking after service was due to his service.
Applying the principles set out in relevant judgments such as Bull and East, the hypothesis is not fanciful or impossible or incredible or untenable. However the hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts and pointed to by the facts, even though not proven on the balance of probabilities. In the circumstances of this case and on the basis of all the material before the Tribunal, the hypothesis does not raise or point to a causal connection between the veteran’s service and alcohol consumption leading to hypertension. Consequently the hypothesis is not reasonable and the veteran does not satisfy Step 1.
In respect of the hypothesis relating to factor 6(e) the Tribunal takes into account that paragraph 7 of SoP Nº 63 of 2013 states:
Factors that apply only to material contribution or aggravation
7. Paragraphs 6(q) to 6(gg) apply only to material contribution to, or aggravation of, hypertension where the person’s hypertension was suffered or contracted before or during (but not arising out of) the person’s relevant service.
The Tribunal has already accepted Professor Harper’s evidence that clinical onset of hypertension was in 1957. The Tribunal also accepts his evidence that an elevated blood pressure reading prior to enlistment and another prior to discharge do not constitute hypertension. In any event the reading taken in 1944 was described at the time as …of nervous origin, which supports Professor Harper’s conclusion that the veteran may have suffered from labile (or fluctuating) hypertension where readings may vary from time to time for different reasons.
Accordingly the veteran did not suffer from hypertension before or during his service and because of paragraph 7 of the SoP the veteran cannot satisfy factor 6(r).
In the circumstances of this case and on the basis of all the material before the Tribunal, the hypothesis does not raise or point to a causal connection between the veteran’s service and any clinical worsening of hypertension. Consequently the hypothesis is not reasonable and the veteran does not satisfy Step 1.

CONCLUSION

The Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s hypertension was war-caused. Therefore the veteran’s service did not contribute to his death, and his death was not war-caused within the meaning of s 8 of the Act.

DECISION

The Tribunal affirms the decision under review.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member.

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

Associate

Dated 9 December 2013

Dates of hearing	2 and 3 December 2013
Counsel for the Applicant	Ms L Martin
Solicitors for the Applicant	Williams Winter
Advocate for the Respondent	Mr K Rudge
Solicitors for the Respondent	Department of Veterans' Affairs