Elizabeth Rennie and Repatriation commission
[2009] AATA 338
•13 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 338
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3459
VETERANS’ APPEALS DIVISION ) Re Elizabeth Rennie Applicant
And
Repatriation commission
Respondent
DECISION
Tribunal Dr I Alexander, Member
Rear Admiral Horton ao, MemberDate13 May 2009
PlaceSydney
Decision The decision under review is affirmed. ....................[sgd]..........................
Dr I Alexander
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – claim for a pension by a widow of a deceased veteran –claim that veteran’s death was war caused – whether the material before the Tribunal raises a reasonable hypothesis – consideration of Statement of Principles – whether the reasonable hypothesis is disproved beyond reasonable doubt – whether the veteran’s death was war caused – the decision under review is affirmed
…
Veterans’ Entitlements Act 1986 – sections 120, 120A
Statement of Principles concerning Atherosclerotic Peripheral Vascular Disease No. 65 of 2002
…
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bendy (1989) 18 ALD 144
Repatriation Commission v Hancock (2003) 37 AAR 393
…
REASONS FOR DECISION
13 May 2009 Dr I Alexander
Rear Admiral Horton1. In this proceeding Mrs Rennie, the Applicant, seeks review of a decision by the Veterans Review Board (VRB) to affirm a prior decision by the respondent to refuse her claim for pension in respect of her late husband’s death on the basis that his death was not related to his war service.
2. The late veteran, Mr William Rennie, served in the Royal Australian Navy. His operational service under the Veterans’ Entitlements Act 1986 (the VE Act) was from 31 August 1951 to 22 February 1952 off Korea.
3. Mr Rennie died in the Repatriation General Hospital Concord on 30 March 1994 as a result of a complication of his treatment for peripheral vascular disease.
4. Mrs Rennie claims that her husband’s death was war caused and that therefore she is entitled to a pension under the Act.
5. Section 120 of the VE Act mandates the manner in which the Tribunal is to determine a claim that involves a relationship between a veteran’s death and his or her operational service.
6. Subsections120 (1) and (3) provide that a claim that the death of a veteran was war-caused should be accepted unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of all the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis.
7. Pursuant to s 120A VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a Statement of Principles (SOP) issued by the Repatriation Medical Authority.
8. In order to ascertain whether an SOP applies it is necessary to identify the ‘kind of death” suffered by the veteran and if there is no SOP the claim is to be determined in a manner discussed in Byrnes v Repatriation Commission (1993) 177 CLR 564 (Byrnes) as cited in Repatriation Commission v Hancock (2003) 37 AAR 393.
9. In this case the parties have agreed that the kind of death suffered by Mr Rennie can be described as “died of the effects of an adverse reaction to vancomycin following a rapid intravenous dose of that drug” as determined by the NSW State Coroner on the 29 May 1995
10. As there are no SOPs for the kind of death suffered by Mr Rennie the reasonableness of any hypothesis proposed by the applicant must be addressed according to the directions of the High Court in Byrnes where Mason CJ, Gaudron and McHugh JJ said:
“The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the fact raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving , beyond reasonable doubt , the hypothesis.
Is there a reasonable hypothesis?
11. It is common ground between the parties that Mr Rennie started smoking in 1944 when serving in the Royal Navy and that he continued to smoke until his death in 1994.
12. It is also agreed that in 1993 Mr Rennie was diagnosed as suffering from peripheral vascular disease and that in 1994 he was admitted to Concord Hospital where he underwent a right femoro-perineal bypass operation.
13. Following this operation Mr Rennie developed a wound infection and treatment in the form of intravenous vancomycin was commenced.
14. On the 30 March 1994 following an intravenous dose of vancomycin Mr Rennie suffered a cardiac arrest and died.
15. The hypothesis proposed by the applicant is that Mr Rennie’s smoking caused his peripheral vascular disease and because of the circumstances of his operational service he had increased his smoking during that service and for some time after and that this increase in smoking had made a material contribution to the development of his peripheral vascular disease.
16. In support of the hypothesis in respect of the relationship between smoking and the development of peripheral vascular disease the applicant points to Repatriation Medical Authority ( the RMA) determination in the SOP concerning “Atherosclerotic Peripheral Vascular Disease “ Instrument No. 65 of 2002
17. In this SOP the RMA expresses the view that there is sound medical-scientific evidence that indicates that atherosclerotic peripheral vascular disease can be related to relevant service rendered by a veteran on the condition one of a number of factors must be related to any relevant service rendered by the veteran.
18. Factor 5(a) in the SOP “smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least three years before the clinical onset of atherosclerotic peripheral vascular disease and where smoking has ceased, the clinical onset has occurred within 20 years of cessation;…”
19. We accept that smoking is causally connected to the development of peripheral vascular disease but note that factor 5(a) seems to imply that the onset of smoking at a particular level and over a minimum period, rather than the accumulated amount of smoking is the relevant issue.
20. Also in support of the hypothesis, Mrs Rennie claims that her husband had told her that he had increased his smoking during his operational service and that she had observed an increase in his smoking when he had returned from Korea.
21. After having considered the material before us we are satisfied that hypothesis proposed by the applicant is a reasonable hypothesis within the meaning of s120 of the VE Act.
Is the hypothesis disproved beyond reasonable doubt?
22. A key factor in the hypothesis is the relationship between Mr Rennie’s operational service and his smoking habit.
23. The evidence concerning Mr Rennie’s smoking particularly during and immediately after his operational service can best be described as inconsistent and somewhat unreliable.
24. In a smoking questionnaire dated 27 September 1991 Mr Rennie indicated that he started smoking in 1944 during Naval duty on a minesweeper after having been attacked by enemy aircraft.
25. He also indicated that thereafter his smoking became a ‘habit’ which did not change during or after his service. He added that he now, presumably at the time he signed the questionnaire, smoked 20 cigarettes per day.
26. Because of the format of the questionnaire the information is somewhat unsatisfactory in that it is not clear which service, Royal Navy or Royal Australian navy, he was referring to or what his smoking habit, i.e. number of cigarettes per day, actually was during the period in question.
27. When Mr Rennie was admitted to Concord Hospital in February 1994 the admitting Medical Officer recorded in the clinical notes that Mr Rennie had a risk factor of one packet of cigarettes per day for 50 years.
28. In a smoking questionnaire dated 28 August 1995 Mrs Rennie indicated that her husband had taken up smoking during his war service in 1951 because of “stress and peer pressure” and that he smoked two packet per day.
29. In a Widows Report on cigarette smoking dated 13 June 2006 Mrs Rennie indicated that her husband was a regular smoker but that he was not sure when he had first started smoking or how many cigarettes he smoked per day at that time.
30. She stated that her husband had told her that he had started smoking heavily when he had to man the guns on his ship during the Korean War but also added that Mr Rennie was a smoker when she first met him and that he had smoked at least one packet of cigarettes per day throughout the marriage.
31. Mrs Rennie also indicated that in 1993 when his peripheral vascular was diagnosed Mr Rennie tried to reduce his cigarette smoking. This is consistent with the clinical notes from Lady Davidson Hospital indicated that Mr Rennie had claimed to be smoking only ten cigarettes per day.
32. In statement dated October 2008 Mrs Rennie indicated that her late husband had a smoking habit when she first met him in early 1951 and that at that time he typically smoked one to one and a half packets of cigarettes each day. She also stated that when her husband returned from Korea his smoking habit had increased to two packets per day and that he also had started smoking a pipe and added that this increase in tobacco consumption was maintained up until 1957.
33. Mrs Rennie’s oral evidence was somewhat inconsistent with her previous documentary evidence and it was clear to the Tribunal that her recollection in respect of her late husband’s smoking was impaired.
34. For example she indicated that Mr Rennie’s smoking actually increased when he left the navy and that after he had started work with Otis in 1957 he started smoking a pipe in an attempt to reduce his cigarette smoking.
35. After having considered the evidence before us we conclude that Mr Rennie had started smoking in 1944 and by the time he had started his operational service he had been smoking for about seven years with an established habit of a least one packet of cigarettes per day.
36. We also conclude that Mr Rennie continued to smoke at least one packet of cigarettes until 1993 and continued to smoke until his death in 1994.
37. In respect of his smoking during operational service and period following his return from Korea we accept that from time to time his smoking may have increased but we are satisfied that during this period their was no material change in his well established smoking habit.
38. We conclude that any contribution made by Mr Rennie’s increased smoking, during and after his operational service, to the development of his peripheral vascular disease was de minimis, did not influence the course of events and should be ignored. See Repatriation Commission v Bendy (1989) 18 ALD 144.
39. It follows that that we are satisfied that one of the raised facts necessary to support the hypothesis has been disproved beyond reasonable doubt which means that Mr Rennie’s death was not war caused and that Mrs Rennie’ s claim fails.
Decision
40. Mr Rennie’s death was not war caused.
41. The decision under review is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I S Alexander, Member and Rear Admiral Horton ao, Member.
Signed: ………[sgd]…………………
AssociateDate of Hearing 1 May 2009
Date of Decision 13 May 2009
Solicitor for the Applicant A J Kemp
Kemp & Co Lawyers
Counsel for the Applicant Mr C Colborne
Appearance for the Respondent Jane Warmoll
Department of Veterans Affairs
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