Estate of Eva Coates and Repatriation Commission

[2004] AATA 970

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 970

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/859   

VETERANS’ AFFAIRS DIVISION		)
Re		ESTATE of EVA COATES

Applicant

And   REPATRIATION COMMISSION

Respondent

DECISION

Tribunal   Rear Admiral A R Horton, Member

Date  17 September 2004

Place  Sydney

Decision   The decision under review is affirmed

[Sgd] Rear Admiral A R Horton, Member

CATCHWORDS

VETERANS’ APPEALS – war widows pension – whether death of James Coates was war caused – congestive cardiac failure and chronic airway limitation – RAAF service – Mr Coates posted to Townsville and New Guinea – whether exposed to chemical warfare (mustard gas) experimentation and testing – reasonable hypothesis raised – Tribunal satisfied beyond reasonable doubt that death not war caused – decision affirmed

Veterans’ Entitlements Act 1986 – ss 6C,120(1), 120(3), 120A

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrnes v Repatriation Commission (1993) 116 ALR 210

Repatriation Commission v Deledio (1998) 49 ALD 193 

REASONS FOR DECISION

17 September 2004

1.      This is an application to review a decision of the Repatriation Commission (“the Respondent”) dated 15 November 2001, as affirmed by the Veterans’ Review Board (“VRB”) on 13 March 2003, that the death of James Henry Coates was not related to service.  The Applicant in that matter was his widow, Mrs Eva Coates.

2. At a hearing before the Tribunal at Newcastle on 30 August 2004, Mr Philip Coates represented the Estate of his late mother, Mrs Eva Coates. Mr Nigel Bunn appeared for the Respondent. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975.  The Tribunal also took into evidence a letter from Philip Coates dated 6 August 2004 (Exhibit A1), a Statement of Service of James Coates (Exhibit A2), Extracts from Keen as Mustard by Bridget Goodwin, Queensland University Press, 1998 (Exhibit A3), Service Documents of James Coates (Exhibit A4) and Clinical Notes from Wyoming Residential Aged Care Facility in respect of James Coates (Exhibit R1).

BACKGROUND

3.      Mr Coates served in the Royal Australian Air Force (“RAAF”) from 10 March 1942 until 11 December 1945.  This constitutes operational service and eligible war service as defined in the Veterans’ Entitlements Act1986 (“the Act”).  Mr Coates died on 18 September 2001 aged 88 years, having been in the Wyoming Residential Aged Care Facility for almost two years. The cause of death was certified as “congestive cardiac failure”, and “chronic airways limitation”.  

4.      On 16 October 2001, Mrs Coates lodged a claim for a War Widows Pension with the Respondent.  The Respondent decided that Mr Coates’ death was not war caused, on the basis that there was no evidence to link the condition of congestive cardiac failure to his service, particularly as he was a non smoker.  Nor was there evidence to support any of the factors in the Statement of Principles relevant to chronic airway limitation.  On 13 March 2003, the VRB affirmed this decision. The VRB did not accept the contention from Mr Philip Coates that unbeknown to Mrs Coates, and contrary to her responses in both the claim and a smoking questionnaire, Mr Coates had been a smoker.

LEGISLATION

5. Subsections 120(1) and (3) of the Act set out the standard of proof in respect of operational service as follows:

“120        Standard of proof

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

              ...

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

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

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

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

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

6. Section 120A of the Act provides, so far as relevant:

“120A   Reasonableness of hypothesis to be assessed by reference to Statement of Principles

…

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

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

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

                   that upholds the hypothesis.”

7.        Subsections 120(1) and (3) were considered by the High Court in Bushell v Repatriation Commission (1992) 109 ALR 30 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Bushell, Mason CJ, Deane and McHugh JJ said at 36:

“The Commission will be satisfied beyond reasonable doubt "that there is no sufficient ground for making [the] determination" if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, "beyond reasonable doubt, that there is no sufficient ground for making the determination" even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.”

8.      In Byrnes, Mason CJ, Gaudron and McHugh JJ further explained the onus on the respondent to disprove the raised hypothesis, at 215:

“The position may be summarised as follows:
(1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.

(2) If a reasonable hypothesis is established, subs (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”.

9.      The appropriate procedure to adopt in deciding a matter such as this was authoritatively explained by the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. At 206, the Full Court said:

“1.       The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.        If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and in consequence, the application must fail.

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

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

10.     At the outset of the hearing, Mr Philip Coates stated that the issue of whether his father smoked would not be pursued; his argument resting on the claim that his father had been exposed to mustard gas, chlorine and ammonia during his service in Townsville and later in New Guinea. 

11.     There is no Statement of Principles (“SoP”) in respect of congestive cardiac failure and therefore any causal connection with service must be based on all the evidence before the Tribunal.  SoP No 73 of 1997 concerns chronic airflow limitation,  chronic bronchitis and emphysema. The relevant factors, as defined at paragraph 5 of the SOP, are:

“(c)being exposed to mustard gas or lewisite within the ten years immediately before the clinical onset of chronic bronchitis and/or emphysema; or

(d)being exposed to an irritant gas resulting in acute respiratory symptoms occurring within the 48 hours immediately after that exposure, within the ten years immediately before the clinical onset of chronic bronchitis and/or emphysema; or

(e)being exposed to mustard gas or Lewisite within the ten years immediately before the clinical worsening of chronic bronchitis and/or emphysema; or

…

(g) being exposed to an irritant gas resulting in acute respiratory symptoms within the 48 hours immediately after that exposure, within the ten years immediately before the clinical worsening of chronic bronchitis and/or emphysema; or”

EVIDENCE

12.     A Record of Service extracted from Form PP 25 (T3) confirms that Mr Coates was mustered as a flight rigger on 26 July 1942, and remustered as a fitter IIA on 15 June 1944.  The document records that on 29 July 1942 he was posted from No 1 Engineering School at Ascot Vale (where from the dates it can be assumed he undertook and completed his training as a flight rigger) to No 30 Squadron (which operated Bristol Beaufighters) based at Richmond.  To this point, the above record is in agreement with an alternate Statement of Service obtained by Mr Philip Coates (Exhibit A2).

13.     Thereafter, the documents vary to some extent in dates and detail, but agree that Mr Coates remained posted to No 30 Squadron until 20 December 1943, and moved with that squadron to various air bases.  The former document indicates that Mr Coates was located at Townsville from 16 August 1942, Moresby from 17 September 1942, Wards (an airfield adjacent to Port Moresby) from 17 July 1943, Goodenough (Island) from 29 July 1943 and Kiriwina from 26 November 1943 until posted to 2 Embarkation Depot at Bradfield Park on 20 December 1943.

14.     Exhibit A2 provides a clearer explanation as to Mr Coates’s movements.  He moved with the squadron from Richmond to Bohle River, an RAAF airfield near Townsville, on 17 August 1942; embarked at Townsville on 10 September 1942; disembarked at Port Moresby for Wards Airfield on 14 September 1942; moved to Goodenough on 1 July 1943 and to Kiriwina on 1 December 1943; thence to Bradfield Park on 20 December 1943.  There is no evidence that Mr Coates thereafter left the Australian mainland prior to his demobilisation on 11 December 1945.

15.     Mr Philip Coates submitted that his father had been exposed to mustard or other gas testing whilst stationed at Townsville. The basis of his argument was that all RAAF personnel to Townsville had participated in trials, or had been exposed to passive gas carried on clothing by those so involved, both in quarters and in community facilities.  Mr Philip Coates pointed to extracts in the book Keen as Mustard by Bridget Goodwin, Queensland University Press, 1998 (Exhibit A3), to support this contention. . 

16.     These extracts variously make reference to “By February, it was estimated that 43 officers and 1591 enlisted men had served …as volunteers” (the implication being that they volunteered in various tests and experiments), classification of injuries such as erythema and obstruction of the bronchi alveoli following exposure, and the use of “new RAAF recruits from Bradfield Park” in January 1943.   The extracts also referred to the different responses to various gases, irritation of the skin, dermatitis, and “RAAF volunteers sustaining serious burns”.  Mr Coates could not make the book available to the Tribunal, as it had been returned to the Salamander Library..   

17.     Mr Philip Coates referred to service medical records of his father, which note that he suffered from pharyngitis and scabies during his service.  He argued that these conditions indicate exposure to mustard or other gas, an exposure he believed had also been present in New Guinea where gas shells and weapons were being tested.   The medical documents before the Tribunal (T documents and at Exhibit A4) show that Mr Coates was treated for pharyngitis following a cold, from 9 to 12 August 1942 whilst stationed at Richmond prior to his move to Townsville and for scabies involving general erythema and rashes on the body and limbs for five days in June 1944, at which time he was stationed at Ascot Vale.  The only other medical conditions referred to are sacro iliac strain, gastro-enteritis, tinea and headaches, these being after his service in the Townsville area.

18.     The Respondent submitted that whilst the extracts from Keen as Mustard had referred to pharyngitis and erythema as conditions that could arise from exposure to mustard gas, the only recorded instances in the medical history of Mr Coates related to episodes prior to, and years after, his posting to the Townsville area.  There is no record of Mr Coates being involved in experiments at Townsville, nor having any medical treatment at that time. The Respondent submitted that there was no causal connection between war service and the death of Mr Coates. There was no evidence before the Tribunal that Mr Coates was at Townsville at the times when tests were conducted or that he had been exposed to mustard or any other gas at any time. 

19.     The Respondent referred to the discharge medical report on Mr Coates in November 1945 which indicated clinical normality, and the report of an examination by a Repatriation doctor on 9 January 1976, which indicated no clinical abnormalities other than back and left knee pain.  There was no evidence to support the contention that clinical onset had occurred within 10 years of exposure. Finally, the Respondent referred to the death certificate which recorded the illnesses leading to death as being of a duration of “months”. 

20.     In response to the concluding remarks by the Respondent, Mr Philip Coates stated that his father had coughed and spat because of respiratory problems all his life, and that the medical records at Wyoming Aged Care facility (Exhibit R1), by referring to mucous, confirmed respiratory problems.  

FINDINGS

21.     Step 1 of Deledio requires that the Tribunal consider “all the material which is before it and determine whether that material points to a hypothesis connecting the … death with the circumstances of a particular service rendered …” It goes on to state that “no fact finding arises at this stage, but if no such hypothesis arises, the application must fail” (Tribunal emphasis).  This accords with the position in Bushell, wherein the High Court stated that “if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them, … the Commission will be satisfied that there is no sufficient ground for making the determination.”

22.     The material before the Tribunal does not point to a hypothesis. There is nothing to indicate that mustard gas, or any other gas or chemical trials, were being carried out in the Townsville area in July/August 1942. There is no material before the Tribunal to indicate that Mr James Coates was a volunteer for such trails or was exposed to mustard gas. In the totality of the material before the Tribunal there is no material that supports the hypothesis put forward by Mr Philip Coates.

23.     In the circumstances, the Tribunal is satisfied beyond reasonable doubt that no reasonable hypothesis arises and accordingly the application must fail.  

24.     The decision under review that the death of Mr James Coates was not related to service is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton, Member 

Signed:  A.Krilis  Associate

Date/s of Hearing  30 August 2004
Date of Decision  17 September 2004
Representative for the Applicant    Mr Philip Coates
Solicitor for the Respondent          Mr Nigel Bunn
Solicitor for the Respondent          Ms Lyn Firth