Ferres and Repatriation Commission
[2002] AATA 410
•24 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 410
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/225
VETERANS APPEALS DIVISION )
Re SHIRLEY HYEM FERRES
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M Sassella, Senior Member Dr J D Campbell, Member
Date24 May 2002
PlaceSydney
Decision The tribunal sets aside the decision under review and decides that the death of Arthur Elgar Ferres was caused by a cerebrovascular accident that was war-caused. It decides also that the applicant qualifies for a War Widow's Pension with effect from 28 June 1998. The matter is remitted to the respondent for it to assess the applicable rate.
[SGD] M J SASSELLA
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - War Widow Pension – veteran died of cerebrovascular accident – whether veteran consumed a weekly average of 250 grams of alcohol in alcoholic drinks for a year before death – whether alcohol consumption related to operational service – whether reasonable hypothesis raised.
Veterans' Entitlements Act 1986 ss 6A(1) Item 1(a), 7(1)(a), 8(1)(a), 11(1) ("dependant"), 13(1)(a), (c), 14(1), (3), (4), 20(1), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.
Statement of Principles concerning cerebrovascular accident, Instrument No 52/99.
Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193
Harris v Repatriation Commission (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445
Bull v Repatriation Commission [2001] FCA 1832
Re Bull and Repatriation Commission [2001] AATA 59
Bull v Repatriation Commission [2001] FCA 823
REASONS FOR DECISION
24 May 2002 Mr M Sassella, Senior Member Dr J D Campbell, Member
HISTORY OF APPLICATION
On 20 September 1998 Shirley Hyem Ferres ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") a claim for a War Widow's Pension. She stated in the claim that, to the best of her knowledge, her husband, Arthur Elgar Ferres ("the veteran") neither drank nor smoked until his Royal Australian Air Force ("RAAF") service and, therefore, that his death was related to war service, in particular that cerebrovascular disease was due to smoking and drinking (T12).
On 2 October 1998 a delegate of the Repatriation Commission ("the respondent") decided that the death of the veteran was not related to service. It was found that the veteran's condition did not meet the requirements in the Statement of Principles ("SoP") in relation to cerebrovascular disease issued by the Repatriation Medical Authority under s 196B(2) of the Veterans' Entitlements Act 1986 ("the Act") (T13).
On 30 November 1998 the applicant sought from DVA a review of the respondent's decision in accordance with s 31 of the Act (T14). On 15 February 1999 a delegate of the respondent decided (T16) that there were no grounds for intervention under s 31 of the Act. Three reasons were cited:
There was no evidence that the veteran met any factor in the SoP concerning cerebrovascular accident.
The veteran ceased smoking in about 1961, that is not within 15 years of the onset of the condition.
There was no evidence that the veteran's alcohol consumption or hypothyroidism were causally related to service.
The delegate said that the application for review would be forwarded to the Veterans' Review Board ("the VRB") for its consideration (T16).
On 7 December 1998 the applicant lodged with DVA an application for the VRB to review the decision of the respondent (T18/54).
reviewable decisionOn 23 September 1999 the VRB affirmed the decision of the Repatriation Commission (T18). The applicant's case was based on the veteran's history of alcohol consumption and its contribution to his cerebrovascular disease or cerebrovascular accident. The applicant's case was that the stresses of the veteran's war service in New Guinea led to a war-caused drinking habit which continued up until he died. The veteran also suffered from hypertension. Factors 5(a) and (b) of the SoP on cerebrovascular accident were raised, ie that the veteran suffered from hypertension before the clinical onset of the cerebrovascular accident, and that he regularly consumed an average of 250 grams a week of alcohol (contained within alcoholic drink) for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident.
The VRB considered the veteran's service history. There was no evidence of any increase in his alcohol consumption during his war service. There was no evidence as regards whether any increase was permanent. Medical records in 1964 and 1967 suggested he was a moderate drinker (two or three glasses of beer a day). He was drinking heavily in 1995, as his doctor confirmed. However, the doctor said nothing about his drinking at the time of his death in July 1997. The VRB allowed that the requirement for consumption of alcohol in the required period was met, however it was not satisfied that the drinking habit was war-caused.
The VRB found against the applicant as regards the veteran's hypertension. "That the veteran was a heavier drinker in later years is not doubted, however there was no medical evidence before the Board that he … suffered from a diagnosed psychiatric condition of psychoactive substance abuse or dependence, at the time of the onset of his hypertension which was established to be 1974" (T18/62). The VRB looked also at the veteran's obesity as a causal factor for hypertension, as permitted by the SoP on hypertension. That SoP recognised war-caused hypothyroidism as a causal factor in hypertension. However, the veteran's obesity preceded in time his hypothyroidism so the latter could not have caused the former condition.
On 23 November 1999 the VRB sent written notification of its decision to the applicant (T19).
On 14 February 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB decision (T1).
BACKGROUNDThe veteran was born on 13 January 1912 in Swanbourne, Western Australia, and died on 19 July 1997 in Sydney. The cause of death was certified as cerebrovascular accident (8 days), cerebrovascular disease (8 years) and hypothyroidism (7 years) (T12/37).
The veteran was married twice, first in 1942 and then to the applicant in this matter, in 1951 (T12/37, 42). They had two children, aged 39 and 33 as at 1997. The veteran was educated to university level, where he studied medicine for three years before leaving.
In 1933 the veteran joined the Commonwealth Oil Refineries as a draftsman (T3/13). After discharge from the RAAF he became an assistant engineer with British Petroleum.
He served in the RAAF from 17 August 1940 to 3 December 1945 (T3/13). This period of service constituted eligible war service. He saw service in New Guinea and so the whole of his service was operational service (T2).
On 8 February 1965 the veteran made submissions to the respondent seeking treatment, but not a pension, in respect of two conditions, lumbar spondylosis and chronic back strain. He claimed that the injuries resulted from "lifting heavy weights and loads during construction of steel matting airstrips in New Guinea." He also noted that he believed that his being "a lot overweight" was a direct result of war service in New Guinea (T6).
When the veteran died he was not in receipt of a Disability Pension under the Act (ex TD1/(2)).
RELEVANT LEGISLATIONThe relevant provisions of the Veterans' Entitlements Act 1986 are: ss 6A(1) Item 1(a), 7(1)(a), 8(1)(a), 11(1) ("dependant"), 13(1)(a), (c), 14(1), (3), (4), 20(1), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.
VETERANS' ENTITLEMENTS ACT 1986
Operational service - world wars
6A. (1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.
Operational service
Item 1
Person A member of the Defence Force
Nature of service (a) continuous full-time service outside Australia…
Eligible war service
7.(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and…
War-caused death
8.(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;…
Dependants
11.(1) In this Act, unless the contrary intention appears:
dependant, in relation to a veteran (including a veteran who has died), means:
(a) the partner; or
(b) a non-illness separated spouse; or
(c) a widow or widower (other than a widow or a widower who marries or re-marries); or
(ca) a reinstated pensioner; or
(d) a child;
of the veteran.
Note 1: A veteran may have more than one dependant of the kind referred to in paragraphs (a) to (d) at the same time.
Note 2: For the meaning of reinstated pensioner see section 11AA.
Note 3: Subsection (4) affects the meaning of widow in paragraph (c).…
Eligibility for pension
13.(1) Where:(a)the death of a veteran was war-caused; or
…
the Commonwealth is, subject to this Act, liable to pay:
(b)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
…
Claim for pension
14.(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).…
(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.…
Date of operation of grant of claim for pension
20.(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.…
Standard of proof
120.(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.
Note: This subsection is affected by section 120A.…
(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.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.…
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or veteran for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.…
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A.(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).…
(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.
Note: See subsection (4) about the application of this subsection.…
Functions of Authority
196B.(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or…
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
Note 3: For factor related to service see subsection (14).…
Disallowable instrument
196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901The relevant SoP concerns cerebrovascular accident. This is SoP 52/99. This was amended by SoP 30/2002 but only in requiring the deletion of a definition in clause 8 that is not relevant to the matter under consideration.
Instrument No.52 of 1999
Statement of Principles concerning CEREBROVASCULAR ACCIDENT
ICD 9-CM CODES: 431, 433.01, 433.11, 433.21, 433.31, 433.81, 433.91, 434.01, 434.11, 434.91, 435, 436, 437.1, 674.0
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.7 of 1999; and
(b) determines in its place the following Statement of Principles.Kind of injury, disease or death
2. (a) This Statement of Principles is about cerebrovascular accident and death from cerebrovascular accident.
(b) For the purposes of this Statement of Principles, "cerebrovascular accident" means cerebral ischaemia or intracerebral haemorrhage, attracting ICD-9-CM code 431, 433.01, 433.11, 433.21, 433.31, 433.81, 433.91, 434.01, 434.11, 434.91, 435, 436, 437.1 or 674.0.…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevant service are:
(a) the presence of hypertension before the clinical onset of cerebrovascular accident; or…
(e) regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident; or
…
Other definitions
8. For the purposes of this Statement of Principles:…
"alcohol (contained within alcoholic drinks)" is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
…
"death from cerebrovascular accident" in relation to a person includes death from a terminal event or condition that was contributed to by the person's cerebrovascular accident;
…
"relevant service" means:
(a) operational service; or…
"terminal event" means the proximate or ultimate cause of death and includes:
a) pneumonia;
b) respiratory failure;
c) cardiac arrest;
d) circulatory failure; or
e) cessation of brain function;…
Application
9. This instrument applies to all matters to which section 120A of the Act applies.
Dated this Twenty-Fourth day of June 1999
HEARING AND APPEARANCES
The tribunal convened a hearing in this matter in Sydney on 16 March 2001. Mr M Vincent of counsel represented Mrs Ferres. Ms S Breuer of DVA represented the respondent.
The tribunal had before it the following documentary material which was taken into evidence.
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1-T20) provided by DVA and dated 15 March 2000.
Exhibit TD2 – Replacement folio 16 for ex TD1.
Exhibit A1 – Report by Dr M G Miller, physician, 14 November 2000.
Exhibit A2 – Report by Mr B G O'Keefe, 31 July 2000.
Exhibit A3 – Statement by the applicant, 6 April 2000.
Exhibit A4 – Report by Dr R Gertler, psychiatrist, 25 September 2000.
Exhibit A5 – Applicant's statement of facts and contentions, 20 November 2000.
Exhibit R1 – Dr F Dennison's clinical notes.
Exhibit R2 – Report by Dr R Joffe, psychiatrist, 15 December 1989.
Exhibit R3 – Report by Associate Professor R P Mattick, psychologist, 16 August 2000.
Exhibit R4 – Report by Associate Professor D Richards, 4 September 2000.
Exhibit R5 – Respondent's statement of facts and contentions.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIALS IN SUPPORT OF THOSE FINDINGS
The tribunal makes the following uncontroversial findings.
The veteran served in the RAAF and rendered operational service from 17 August 1940 to 3 December 1945 (T2).
The applicant lodged a valid claim on 28 September 1998 (s 14(3) of the Act and T12).
The date of effect of any decision favourable to the applicant would be 28 June 1998 (s 20(1) of the Act).
The standard of proof in relation to whether the veteran's cerebrovascular accident was a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act).
The SoP relevant to the determination of this matter is, prima facie, SoP 52/99 as amended by 30/2002 concerning cerebrovascular accident. If the hypothesis fails in relation to the current SoP, then the SoP relating to the same medical condition in force at the time of the primary decision (2 October 1998) can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).
survey of documentary evidence
On 2 August 1940, prior to enlistment, the veteran was examined by a medical officer. The veteran had no serious medical conditions prior to enlistment (T3/7).
On 20 November 1945 the veteran was medically examined prior to discharge (T3/11). On examination he stated that he had no disabilities sustained while a member of the RAAF.
On 8 June 1964 the veteran was examined by a Repatriation Commission medical officer (T4). The veteran was described as "obese", his blood pressure was 150/100. There was a vague history of two episodes of diarrhoea "precipitated by drinking".
In a further medical history sheet dated 2 December 1964 (T5) the veteran was described as a non-smoker and a very moderate alcohol drinker.
On 17 November 1997 on a smoking questionnaire (T12/40), the applicant stated that she first met the veteran in 1948, that he took up smoking prior to 1948 during service and that the reason for his smoking was peer pressure. She stated that she was unaware of his tobacco consumption during service.
On 25 May 1998 the Applicant completed a Widow Report – Alcohol Questionnaire (T12/38). She stated that she understood that the veteran started drinking when he joined the RAAF because of peer pressure and ready availability of alcohol. She stated that he drank every day in the service, about 2-3 glasses of beer a day, and that even prior to his death he was still drinking about half a bottle of wine every day.
On 15 December 1989 the veteran was examined by Dr R Joffe (ex R2). In his letter to a Dr C Fraser, Dr Joffe stated that the veteran had a partial right sixth nerve lesion and that his condition resulted from a vascular disturbance. He noted also the veteran "occasionally drinks".
On 23 September 1991 Dr M Lunzer, a gastroenterologist, described the veteran's health problems, apart from his dementia, as hypertension, urinary tract infection, treated hypothyroidism and faecal incontinence, which he related to the veteran's dementia (ex R2/51).
On 18 February 1999 Dr F Dennison completed a medical report (T17) in relation to the veteran. She stated that the veteran had suffered from hypertension since 1974 and was on hypertensive medication. She stated also that he was known "to have a heavy alcohol consumption since World War II" and that "he continued to be a heavy drinker up until development of dementia in 1989. He was eventually placed in a nursing home in December 1995". She further stated that his cardiovascular disease would have been aggravated by a combination of his obesity, hypertension and heavy ethanol intake.
On 16 August 2000 Assoc Professor R Mattick also completed a medical report (ex R3) on the veteran. This report detailed the smoking and drinking history of the veteran as related by the applicant. The veteran ceased smoking in 1955. Prior to marrying he was smoking 20 cigarettes and two pipes a day. After marrying he smoked only at work. Professor Mattick noted that the applicant was unsure when her husband first started smoking and drinking. She did not know what and how much he drank on service. He found that SoP Instrument No 5 of 1994 concerning psychoactive substance abuse and dependence was not satisfied in that there was no recurrent social, occupational, psychological problem combined with continued alcohol use. The veteran did not meet SoP Instrument No 64 of 1998 (on hypertension) because he did not meet clause 5(b) – not suffering from alcohol dependence or alcohol abuse. The veteran could not meet clause 5(d) of the SoP concerning cerebrovascular accident because he did not drink an average of 250 grams of alcohol a week. There was no reasonable hypothesis for relating his death to war service.
On 4 September 2000 Associate Professor David Richards competed a medical report (ex R4), also based on the statements of the applicant. He stated "it is my opinion that his alcohol consumption would have contributed to the development of onset of hypertension in 1974…" Also, "there is a reasonable hypothesis exists to link alcohol consumption with operational service" and "it is my opinion that a reasonable hypothesis exists to link temporally the onset of obesity and heavy alcohol consumption with war service." He further stated that a reasonable hypothesis existed that alcohol consumption contributed to dementia and that this also contributed to hypertension, which would have aggravated cerebrovascular disease. Also "it is my opinion that hypertension…was aggravated by the presence of obesity which developed during the war. A reasonable hypothesis exists that the veteran's stroke was aggravated by hypertension which in turn was aggravated by war caused obesity and alcohol consumption. It is reasonable that the veteran meets both SoP no 64 of 1998 and No 23 of 1998 (concerning cerebrovascular accident), but not no 5 of 1994" for psychoactive substance abuse or dependence.
On 25 September 2000 another medical report was produced by psychiatrist Dr R Gertler (ex A4). He stated that the veteran was exposed to severe stresses during his service and that as a result he developed chronic emotional problems. The veteran's alcohol habit satisfied the SoP concerning alcohol dependence or abuse, instrument no 76 of 1998. He exhibited tolerance (factor 2(b)(1)), spent considerable time when not working in clubs (factor 2(b)(5)) and he continued to use alcohol knowing that it affected his relationships with his wife and daughter (factor 2(b)(7)). "In my opinion Mr Ferres' alcohol dependence developed within the two years after he experienced severe stressors in New Guinea in 1943/44 (factor 5(b))".
On 14 November 2000 Dr M G Miller, a physician, completed a medical report in relation to the death of the veteran (ex A1). He stated that according to the statement of the applicant of 6 April 2000 (ex A3), the veteran had been drinking about a bottle of wine, or seven standard drinks a day for the past 12 months. Dr Miller stated that the veteran satisfied the SoP, factor 5(e) of Instrument no 52 of 1999 for the onset of the cerebrovascular accident leading to his death as he was drinking 500 grams of alcohol a week for 12 months prior to this. He further reported that the applicant stated that the veteran drank half a bottle of wine daily when in the nursing home. This consumption, 13 kg of alcohol in the year before his stroke, equated to 250 grams of alcohol a week and therefore satisfied the SoP. Dr Miller also stated that the veteran satisfied SoP, factor 5(b) of instrument no 25 of 1999 for hypertension, and therefore factor 5(a) of SoP no 52 of 1999 for cerebrovascular accident. He stated that if alcohol dependence was accepted, there was a reasonable hypothesis that the veteran's cerebrovascular accidents related to his service, directly as a result of alcohol consumption and because of its contribution to hypertension.
A research report by Mr B G O'Keefe was solicited by the applicant (ex A2). Mr O'Keefe's report contained a detailed chronology of the veteran's service. It noted the following:
The veteran did not experience heavy or severe air raids in Port Moresby, except for that of 12 April 1943, which inflicted heavy damage and the deaths of several servicemen. He was present when at least four air raids took place.
The veteran was serving on Goodenough Island when two air raids took place.
The veteran experienced occasional Japanese air raids during construction of airstrips in Nadzab, December 1943 until mid April 1944.
On 22 April 1944 the veteran took part in an allied assault at Aitape. Later he was involved in construction while under sporadic sniper fire.
The veteran landed with an allied assault on Noemfoor Island. Construction was started shortly afterwards, and continued in spite of at least one air raid and the presence of Japanese soldiers on the island.
A beer ration for RAAF personnel serving in New Guinea was introduced in 1944. This was two large bottles per man per week.
The applicant provided a written statement dated 6 April 2000 (ex A3). In it she said the following:
The veteran told his wife that he started drinking in New Guinea.
The veteran always drank at social events. He drank four to five beers daily at home.
She married her husband in 1951, after which the veteran started going to St George Leagues Club daily. He would come home affected by alcohol.
In 1967 he started going to the Willoughby Legion Club after moving to Castle Cove. After returning from there in the evening he would drink at least three glasses of wine during dinner.
In 1964 the veteran started drinking wine instead of beer. He drank up to a bottle a day at home.
The veteran drank at least half a bottle of wine a day in the nursing home from 1994 until his death.
The veteran "drank alcohol like it was water".
They fought about his alcohol habit quite often.
The veteran would not discuss his wartime experiences, not watch war movies nor attend ANZAC Day.
The veteran was a very irritable man.
She believed that his hypothyroidism developed much earlier than 1990. During his service he had to get four new uniforms in four months.
the hypothesis
The hypothesis proposed by Mr Vincent for the applicant to link the veteran's operational service with his death was that he died of cerebrovascular accident resulting from his alcohol consumption which was war-caused. An alternative hypothesis based on hypertension had been abandoned. Another alternative hypothesis based on the veteran's obesity was also abandoned. Ms Breuer advised the tribunal that the respondent accepted that the veteran had consumed 250 grams of alcohol a day on average as required by the cerebrovascular accident SoP. The outstanding issue between the parties was only the connection between Mr Ferres's service and his alcohol consumption.
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim that a veteran's death was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the disease that caused the death with the circumstances of the particular service rendered by the veteran.
The second step is to ascertain whether there is a relevant SoP in force.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service.
Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 31 AAR 270, 282 in paragraphs 37-40 where he said:
"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'.
"38 In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.
"39 Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) 'acute signs and symptoms of altered mobility etc', Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an 'acute sign or symptom' of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.
"40 The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility … point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."
Again, in Arnott v Repatriation Commission (2001) 32 AAR 445, 452-453 the full Federal Court put the matter succinctly in paragraph 27 when it wrote:
"However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the 'particular claim' fits the 'template' laid down in the SoP. As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage."
As the tribunal understands it, its obligation at step 3 is to consider whether the hypothesis, in all its aspects, as advanced by, or for, or in aid of the applicant, in the opinion of the tribunal, matches the template provided in the SoP. It is therefore necessary to consider what is required in the SoP.
It is difficult not to engage in a fact finding exercise in step three of Deledio (above). There is an account given by the applicant. There is a rebuttal by the respondent where the respondent refers to evidence before the tribunal. However, the tribunal takes the correct approach to be to have regard to all the material before it, noting the applicant's version in step three, and see whether that meets the SoP template.
If the tribunal finds that step three has been satisfied that means that the hypothesis raised by the applicant is a "reasonable" hypothesis in the terms of s 120(3) of the Act.
Moving on to consider step four of Deledio (supra), the tribunal must decide whether it is satisfied beyond reasonable doubt that the veteran's fatal disease was not war-caused. It is at this point that many of the arguments put by the respondent come into play. The tribunal assesses each of these in turn to ascertain whether one, some or all serve to satisfy the tribunal beyond reasonable doubt that the veteran's death was not war-caused.
The hypothesis has been identified in paragraph 42 above. There is a relevant SoP, as identified above in paragraph 26 above. Mr Vincent argued that factor 5(e) of the SoP on cerebrovascular accident is satisfied by the hypothesis. Ms Breuer effectively conceded this to be so. Ms Breuer argued that clause 4 of the SoP was not satisfied, that is that factor 5(e) was related to the operational service of the veteran. The tribunal, nevertheless, is not bound by agreements and concessions as between the parties and must be independently satisfied that mandatory requirements are met.
is the hypothesis reasonable?The applicant gave evidence at the hearing. She met the veteran while working at COR in 1948. He was an engineer. The couple married in 1951. Before they married the veteran would drink four or five beers daily at home and he would drink when they went out together to social events. After they married they moved to Sydney. The St George Leagues Club was not far away from their house. The veteran would drink after lunch and then returned to work. The applicant and the veteran would go to the Leagues club on Friday nights where they would dance and have some drinks. Jugs of beer would be on the table. They would be part of a group of anything from two to six people. The veteran would drink four or five glasses of beer, the glass being schooner size. At home there was always wine, spirits and beer. The veteran would buy in the beer, but both the applicant and the veteran would contribute to stocking the bar. When the two had dinner at home the veteran would have a drink whilst Mrs Ferres would prepare the dinner. The bottle would be finished off over dinner. A glass of sherry might also be consumed.
Later other alcohol replaced beer. It had begun to make the veteran feel sick. This was in the 1960s. The other alcohol was wine, sherry and brandy. The applicant might drink a glass of wine and a sherry. The deceased veteran would drink the rest of the bottle each day and some sherry.
The veteran belonged to five clubs: St George Leagues Club, the Mandarin Club, the North Sydney Club, the Legion Club at Willoughby and the Kirribilli Ex-Serviceman's Club. He joined the Legion Club when the couple moved to Castle Cove. He would visit the Club after work and to get the paper. He would drink there then. He would be alcohol affected when he came home. On Saturdays he would go to the North Sydney Leagues Club. He patronised the Mandarin Club because he worked in Goulburn Street near that club. The pattern remained constant until the veteran retired. After retirement he drank on a daily basis.
In the applicant's statement she commented on difficulties caused by her husband's drinking.
"11. When we used to visit our daughter in Newtown, my husband used to drink. Whenever we would leave, my daughter used to be very concerned that her father had been drinking and was now going to drive. She would warn him not to kill me in a car accident on the way home.
"12. When my husband drank, he did not sip the drink slowly. He drank alcohol as if it was water.
"13. There was no point in my husband's life where he ceased drinking alcohol. He continued drinking up until his death.
"14. My husband and I fought about his alcohol habit quite often. When I asked him to stop drinking, he said that he would do as he pleases."
In oral evidence the applicant emphasised that the veteran insisted on always driving his car. Asked to say more about the comments in paragraph 14 about fights that she had concerning alcohol, the applicant explained that she told the veteran that she thought he should give up drinking and they could spend the money saved on other things. However, she said this cut no ice with the veteran.
The applicant was asked also about her knowledge of the veteran's access to alcohol in Papua New Guinea. The applicant said that she thought he drank alcohol in Papua New Guinea. She understood that the troops there had a live for the day attitude. The veteran had spoken little of his consumption of alcohol during the war. He had mentioned at least one binge that occurred during the war involving the veteran and some of his air force colleagues.
In cross-examination Mrs Ferres stated that she did not know if the veteran used to drink at lunchtime before he enlisted in the air force. He did do this after discharge. She also did not know of his drinking habits after work before the war. The veteran was 28 when he enlisted. The applicant was unable to describe his drinking pattern between the ages of 21 and 28.
Ms Breuer asked Mrs Ferres to address the alcohol questionnaire (T12/38-39). In that questionnaire she had said that the veteran began to consume alcohol on a regular basis only after he joined the air force. The applicant agreed this was incorrect in view of her previous answer to the effect that she did not know of the veteran's drinking habits prior to his enlistment. In the questionnaire she had said that the reason the veteran commenced drinking was due to peer pressure and the ready availability of alcohol. Mrs Ferres agreed with Ms Breuer that she had made no reference to the veteran experiencing stress as part of his war service. Ms Breuer questioned Mrs Ferres further about the answers she had given. Mrs Ferres said that she understood that alcohol had been readily available in Townsville and in Melbourne. She said she thought this to be the case. Questioned about peer pressure she thought this could have occurred in Melbourne. Questioned about the availability of alcohol in Papua New Guinea, she said that they did drink in New Guinea. They associated with Americans. The rations included drink. The applicant was not specific about when and where alcohol was available in Papua New Guinea. She said she had no idea of how it was packaged if it had been provided as part of rations. In the questionnaire she had said that the veteran drank every day after he commenced drinking. She agreed in cross-examination that she did not know whether the veteran had drunk every day at the beginning of his drinking career. She had said in the questionnaire that on occasions when the veteran drank he consumed beer at the rate of two or three or more glasses. These glasses were of schooner size.
In ex A3 the applicant had written in paragraph 3 that the veteran had told her that he started drinking alcohol whilst on service in New Guinea. She told the tribunal, however, that it could have been earlier. She explained that the veteran had said that he began to drink alcohol regularly only when he joined the forces. Prior to that he would drink only occasionally. She later said that this was a presumption on her part.
Ms Breuer asked the applicant to consider a medical report from 1967 (T3/14) which recorded that the veteran drank only one or two middies of beer a day. She said this could not be correct and that most probably the veteran had said this because he did not want people to think that he was an alcoholic.
Ms Breuer asked Mrs Ferres about the suggestion that the veteran's consumption of beer had caused him health problems. She recollected that he had experienced diarrhoea in 1961. In fact, she said, he had diarrhoea quite often. He had seen a doctor about it but had taken no time off work.
Mrs Ferres said that his employers had had no problem with the veteran drinking at lunchtime. This lunchtime drinking had occurred with his work colleagues.
In answer to questions from tribunal member Dr Campbell, Mrs Ferres said that she had never seen the veteran absolutely drunk. He had also never missed work because of alcohol. He did not take "sickies" from work. He was, however, an argumentative drinker. She said that he would drink more on weekends. When he retired from BP he did consulting into his 70s. He had had no traffic infringements.
In considering whether the hypothesis raised conforms to SoP 52/99 the tribunal finds as follows:
The SoP relates to death by cerebrovascular accident as defined in the SoP (clause 2). The tribunal finds that Mr Ferres died of cerebrovascular accident as defined. This stems from the death certificate (T12/37).
Factor 5(e) requires identification of the time of onset of cerebrovascular accident. The death certificate placed the onset at eight days before death, that is on 11 July 1997.
Factor 5(e) requires that the veteran must have regularly consumed an average of (at least) 250 grams a week of alcohol in the form of alcoholic drinks for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident. The hypothesis is based on the proposition in the applicant's statement (ex A3) where she said in paragraph 10, "My husband began living in a nursing home in approximately 1994 and remained there until his death. He would drink at least half a bottle of wine daily whilst at the nursing home until his death". Dr Miller (ex A1) saw this consumption as equivalent to an average of 250 grams of alcohol a week. Associate Professor Richards saw it as equivalent to 210-280 grams of alcohol a week (ex R4).
The alcohol consumption had to be related to the veteran's operational service (clause 4). Mr Vincent in his final submissions summarised the applicant's position on this. The applicant did not know the veteran before service. She knew what he had told her and what she absorbed by inference from the veteran's family, none of whom were drinkers (ex A3, paragraph 2). In service within Australia alcohol was readily available. The applicant presumed this was so in Melbourne. The veteran had said it was so in Townsville. The applicant was unaware of the quantities. During service in Papua New Guinea the veteran told the applicant much the same as Mr O'Keefe reported in ex A2 (in paragraph 40 above). This was to the effect that two large bottles of beer a week were provided from 1944. Prior to that a concoction known as "jungle juice", which the tribunal takes to be a distilled drink produced in the jungle in Papua New Guinea, was resorted to. The veteran experienced stress in Papua New Guinea and he told the applicant of a binge drinking episode which helped them to forget what was occurring around them. Mr Vincent referred to the evidence about the veteran's stresses and the use of drink to deal with these. Dr Gertler, a psychiatrist, saw the stresses experienced on service as likely to have been productive of alcohol dependence (ex A4). Mr O'Keefe listed a series of potential stressful aspects of Mr Ferres's service in Papua New Guinea largely in the form of air raids and sniper fire (see paragraph 40 above). Mr Vincent suggested that the veteran's alcohol consumption in war time was addictive. The pattern can settle later even if the quantities consumed during operational service were relatively low.
To this point it would seem that the hypothesis does comply with the SoP. The applicant's statements, supposedly in support of her hypothesis, were somewhat less confident than the tribunal would prefer. It is clear that she is acting on surmise, based on the alcohol histories of the veteran's nuclear family, in proffering anything on the veteran's pre-enlistment drinking pattern. Even her account of the veteran's drinking during the war was based to an uncomfortable degree on guesswork. At the same time it seems to the tribunal that the applicant, as one unused to giving evidence in legal proceedings, did her best not to embroider the picture when put to the test.
The Federal Court has held that, even where the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. In the full Federal Court decision of Bull v Repatriation Commission [2001] FCA 1832 Emmett and Allsop JJ said:
"18 It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. …
…
"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. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.
"22 The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. …
…
"41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:
'A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.'"
There are several possibilities in this case that might attract application of the principles in the Bull case (above). First, tribunal member Dr Campbell queried whether there was in fact a cerebrovascular accident in 1989 on the basis of material in ex R1 and ex R2, notably Dr Joffe's report of 15 December 1989. Dr Joffe wrote, "I am sure that [he has had] a vascular disturbance at his age [he was 77]. I can't imagine it could be due to anything else … In my experience these lesions usually get better within four to six weeks, and I have told him that." In accordance with paragraph 2(b) of the SoP, there was an incident of cerebral ischaemia in 1989. Mr Vincent agreed that a cerebrovascular accident did occur in 1989 but it was not fatal. He argued that the veteran had a fresh accident in 1997 which was fatal. The tribunal accepts this proposition.
Associate Professor Mattick did not accept that the veteran had consumed at least 250 grams a week of alcohol. The tribunal has already noted that Drs Miller and Gertler accept that the veteran probably did consume this quantity of alcohol.
However, Ms Breuer made very interesting submissions suggesting that the material relating to the hypothesis left any connection between the veteran's operational service and his drinking as too tenuous a connection to satisfy clause 4 of the SoP and, by extension, s 120(3) of the Act.
Ms Breuer said that the respondent accepted that the veteran drank alcohol and had done so from the time when he and the applicant met (which was in 1948 – ex A3, paragraph 1). The respondent also accepted that Mr Ferres's service had been stressful on the basis of ex A2 (the O'Keefe report). However, she said that there was no material linking the two phenomena. She said that the only connection was by inference. It was described as an invention. The applicant had had to presume that the veteran did not drink alcohol regularly between the ages of 21 and 28. There was no actual information as to Mr Ferres's alcohol consumption at that time. The applicant was said to have assumed that he was only a social drinker at the time.
Ms Breuer submitted that it is not permissible to make assumptions in constructing a reasonable hypothesis. Ms Breuer pointed out that Mr Ferres was somewhat mature when he enlisted. He was not the more usually raw recruit who is introduced to liquor only upon entry into the forces.
Ms Breuer pointed to the documentary evidence suggesting moderate alcohol consumption by Mr Ferres. In 1967 when Mr Ferres was aged 55 he was recorded as drinking only one or two middies of beer a day (T4). In 1964 he was recorded as "Alcohol. V moderate" and "Diarrhoea if he drinks beer". Again in 1967 he is recorded as drinking alcohol "moderate" (ex TD2/1).
Ms Breuer submitted that s 119 of the Act cannot be invoked to justify the making of assumptions. This was a reference to s 119(1)(h) of the Act, which is in the following terms:
"Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;…
the Commission:
…
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68 (1), was not reported to the appropriate authorities."
Ms Breuer referred to the decision in Re Bull and Repatriation Commission [2001] AATA 59, the tribunal decision ultimately considered by the full Federal Court in Bull v Repatriation Commission (above). In the tribunal decision [to be referred to in these reasons as Re Bull], the facts of which echo those in the instant case in some respects, the tribunal found that no reasonable hypothesis had been raised. The tribunal decision bears close scrutiny.
Most of the material presented for the widow (the applicant) in that case came from the veteran's stepson. He knew the veteran from the age of seven years in about 1947. His evidence as to the deceased veteran's drinking habits from that time was presented fairly confidently and was accepted by the tribunal. This was sufficient consumption to satisfy a SoP factor in terms similar to those of factor 5(e) in the present case. The deceased veteran's sister also gave evidence that the veteran drank a few drinks after golf of a Saturday before he enlisted. She was unaware of his drinking pattern when he was in the army. She did not see him again until a year or so after he was discharged and he was "drinking more", at that time at the RSL club with army friends.
In submissions counsel for the applicant in Re Bull (above) is described as saying the following:
"22. Counsel for the Applicant acknowledged that there was a paucity of evidence about the Veteran's service and urged the Tribunal to take account of s119 of the Act given the absence of information about his service in the Middle East. As a sapper engineer the Veteran's service would have involved him in stressful and arduous work. The information about his service in Western Australia is that it was arduous work drilling for water. It was submitted that the Veteran could have developed a drinking habit because of the nature of his service, noting however that the Veteran had a history of pre-service drinking of three beers a week.
"23. It was also submitted for the Applicant that Mrs Sutherland's evidence supports the hypothesis that the Veteran's drinking after the war was related to his service because not only was he drinking more, but whereas he had drunk at the golf club before the war, after the war he was also drinking at the RSL club with his Army friends."This raised squarely the applicability of s 119 in a case such as this.
Of the respondent's advocate's submissions the tribunal said:
"26. It was submitted for the Respondent that on Mr Pearce's evidence, which reflected a relationship with the Veteran over many years, one of the most consistent parts of the evidence is the association between the Veteran's drinking and his sporting activities, and Mrs Sutherland's evidence supported that trend both before and after service. To suggest that the changed locus of his drinking from the golf club to the RSL club was indication of a service relationship was too tenuous and indeed was not reasonable."
The tribunal's handling of these sets of submissions was as follows:
"31. The hypothesis raised is that the Veteran's pre-service drinking increased by the time of his discharge from the Army, that it increased further about five years after his discharge, and was maintained at that level until after his retirement when it increased further until the time of his wife's heart attack and invalidity, when he reduced his drinking somewhat. The Veteran considered his service in the Middle East to be "pretty grim" and he refused to talk about it. After the war he continued to be a gentle, "happy go lucky" man, except for occasional outbursts with his family, and except when he had been drinking. When he had been drinking he became aggressive. His post-service drinking venue included drinking with his Army friends at the RSL club, whereas his pre-service drinking was only at the golf club.
"32. The Tribunal is required to consider whether a reasonable hypothesis has been raised to connect the Veteran's drinking with his war service. While it is reasonable to infer that his war service in the Middle East and in Western Australia were both stressful, albeit in different ways, the nature of that stress is not known and the effect that it had on the Veteran is not known, except to say that he did not want to talk about it. There is no evidence that the Veteran suffered from any psychiatric disorder arising from his war service. There is no evidence that he drank to deaden the memories of his stressful war service. It was not until his retirement that he drank at home, apart from coming home with his friends to continue drinking after he was already drunk. His drinking appeared to revolve around his sport, both golf and later bowls, and for many years it was confined to weekends. There is no evidence that his drinking affected his work in any way. He was well respected by his friends and his work colleagues and bosses, and appears to have had no difficulty in maintaining those relationships. While he did not move into a parenting relationship with his step-son to any extent, there is no evidence that it was his drinking that inhibited that relationship.
"33. The Veteran gave no indication to his family that he was drinking because of his war service. Merely, he refused to discuss his war experiences and he refused to admit that his drinking was a problem. The juxtaposition of these two negatives does nothing more than leave open a possible relationship rather than pointing to it. The closest relationship that the Applicant can point to in associating the Veteran's drinking with his war service is that post-service he drank with his Army friends at the RSL club. This on its own is a fairly tenuous relationship with his war service. If it was one of a number of facts pointed to in the hypothesis it could be seen differently from being one of the main facts raised of an association.
"34. In terms of the raised facts, when considered in relation to those in Stares, the Applicant's case would appear to be weaker. Certainly it is a much weaker case when compared with the Tribunal's decision Re Wallis, in which the facts can be clearly distinguished.
"35. In considering the evidence as a whole in respect of the raised facts, the Tribunal is concerned that so much of the hypothesis is left open as to make it so tenuous as to be not reasonable, taking into account the definition of a 'reasonable hypothesis' endorsed by the High Court in Bushell, v Repatriation Commission (1992) 175 CLR 408, where Mason CJ, Deane and McHugh JJ said, at 414:'[An] hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature". Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous".
In the words of the High Court in Bushell, the hypothesis raised by the Applicant in this matter is 'too tenuous' and therefore the Tribunal considers that, pursuant to s120(3) of the Act a reasonable hypothesis has not been raised on the evidence.
"36. Therefore the Tribunal finds that although the Applicant meets the words of factor 5(e) of the relevant Statement of Principles, the link between the Veteran's drinking and his war service has not been met. The decision under review will therefore be affirmed."Re Bull (above) was appealed to the Federal Court where it was considered by a single judge, Gyles J, in Bull v Repatriation Commission [2001] FCA 823 and by the full court in Bull (above). At both levels in the court the tribunal's decision was upheld. The full court concluded that the tribunal could, on the material before it, have decided that there was a reasonable hypothesis, but it was equally able to find as it did, that there was not. The full court, relevantly, said:
"30 The primary judge accepted the submissions of the respondent. Paragraphs [12] and [13] of his reasons reflect his Honour's reasoning:
'[12] In my opinion, despite the well crafted argument by counsel for the applicant, the respondent's argument must be accepted. There is nothing to indicate that the Tribunal did not address the task it was given pursuant to s 120(3) of the Act or that it impermissibly entered into fact-finding which is of a kind reserved to it only when considering s 120(1) at a later stage. It had a body of material before it which related to the drinking of the deceased. None of it bore directly upon the link between war service and drinking, or even his drinking during the war. He drank before the war, he drank after the war and he continued to drink for the rest of his life. Whether that material, coming as it does from various sources, gives rise to a reasonable hypothesis is, as the High Court said in Owens, a question of fact. As with questions of fact, minds can differ. On the material before it the Tribunal could have found that the hypothesis was reasonable, but it was open to it to find to the contrary. Decisions in other factual situations are of little assistance in a case such as the present, but I found the judgments of Lockhart J in Owens v Repatriation Commission (1994) 35 ALD 278 and Davies J in the Full Court in the same case (Owens v Repatriation Commission (1995) 59 FCR 559) useful, considering the approval of those judgments by the High Court when refusing leave (see Owens).
'[13] I agree with the submission of the respondent's counsel that the reasons of the Tribunal do not reveal or reflect any error of law. No error of law can be identified in them. On the contrary, the reasons refer to the relevant authority. For my own part, I think that there is some danger in a Tribunal guiding itself by judicial paraphrases rather than by the statutory language, but that did not lead to any error here. Counsel for the applicant sought to make much of the words "so much of the hypothesis is left open". In my view, those words, taken in context, simply mean that there was no direct material before the Tribunal actually going to the central part of the hypothesis of connection between war service and excessive drinking, which remains entirely a matter of inference. Even if that were wrong, it would not be an error of law but, in my opinion, it is plainly correct. The language of decision-makers is not to be scrutinised with too fine or pedantic an approach.'"31 As developed, the appellant's submissions before us were to the effect that on the material before it, it was not open as a matter of law for the Tribunal to come to the opinion that the material before it did not raise a relevant reasonable hypothesis. This was for two reasons: first, material was said not to have been taken into account by the Tribunal and so regard had not been had to all the material before it; and, secondly, even if regard had been had to all the material, no tribunal properly understanding its task, in the way described in [23] to [25] above, could have reached the conclusion it did.
…
"34 We have examined the factual material referred to by the Tribunal at paras [3] to [21] of its reasons and the submissions of the appellant and we cannot conclude that the statement by the Tribunal in the first sentence of para [35] of its reasons that it had examined all the material before it was not an accurate reflection of what the Tribunal did. This is so especially in the light of the various statements in the cases that it is not incumbent on a Tribunal to cover every aspect of every factual matter: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620, 621 (per Fox J); Bisley Investment Corp v ABT (1982) 40 ALR 233; and FCT v Caneiro (1988) 15 ALD 368, 369; and in the light of the approach not to examine the Tribunal's reasons with an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
"35 Thus, the real question in the appeal is whether the conclusion of the Tribunal was on the material open at law to it. For it not to be, it would have to be an opinion of the kind referred to in [23] and [24] above.…
"39 In any event, the material disclosed the following:
(a) Prior to the War, the veteran was a light social drinker at the golf club on the weekends.
(b) In the War, the veteran was a sapper who served in the Middle East in 1941 and 1942 and in Western Australia and the Northern Territory in 1943 and 1944.
(c) After the War, the veteran described his war experiences as "pretty grim". However, he spoke little about the War and was seen to become upset when asked about it. He would try and avoid the subject and would become upset when the subject of war was discussed.
(d) The drinking habits of the veteran after the War were described as follows. His sister said that after the War he would drink a couple of sherries at night after work but drank heavily on the weekends with his friends. She also said that he became bad tempered and impatient when drinking. He was placid before the War. The veteran's stepson said that from 1947 the veteran would drink heavily on the weekends. He would become more voluble and aggressive when drinking, being normally "meek". He would drink a few glasses of wine each evening at home during the week - 3 to 4 glasses of fortified wine. The stepson said that this pattern of drinking continued until 1974 when his consumption increased and he would drink heavily on Friday, Saturday and Sunday nights and at the bowling club at least two days per week. This increased drinking from 1974 coincided with his retirement.
(e) He often drank with ex-servicemen."40 The above is not intended to be exhaustive. The Tribunal dealt with the veteran's drinking in paras [7] to [21] of its reasons. However, the above is enough to disclose that on the material available it could hardly be denied that an hypothesis of the kind referred to in [38] above was by no means fanciful or impossible or incredible or untenable. He drank lightly before the War, experienced stress in the War, spoke in guarded and repressed terms of the War and drank more heavily after the War. It could hardly rationally be said that an hypothesis that the increased drinking habits were brought about by his associations in the war or were to cope with his experiences in the war was fanciful or tenuous, etc. People who experience stress sometimes cope by consumption of alcohol.
"41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:'A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.'
"42 On this basis, one can see that the reasons for the veteran's increased drinking after the War might be consistent with the hypothesis in [38] above; but the drinking may also be equally explained otherwise, for example, a liking for convivial company of former service friends or a simple increased liking for alcohol consumption, especially after sporting activities.
"43 If the consumption had been of a pattern which bespoke a change in behaviour referable to service or to coping with the experience of service, it might point to a connection with war service.…
"45 From the above discussion it is clear that, as the primary judge said, whether or not the material before the Tribunal pointed to or raised a connecting hypothesis was very much a matter of debate. It was a factual question which the Tribunal determined.
"46 The complaint about the primary judge's reasons set out in [26] above is misconceived. What his Honour said in para [13] (see [30] above) must be set in the context of what he said in paragraph [12] (see [30] above). It is doubtful whether the primary judge needed to use the adjective "direct", but what he was clearly saying was that the Tribunal was of the view that the material did not point to the hypothesis connecting war service and service drinking and so war service and death. His Honour was of the view that the material was such as to permit the Tribunal to come to the view it did. On the approach dictated by East, supra, his Honour was correct in that conclusion. Therefore, if the Tribunal was wrong in its conclusion there was no error of law, only an error of fact. That was his Honour's view. He was correct."
There was a little more in the material available in Re Bull (above) about that veteran's drinking history than is the case in the instant matter. A living witness knew of his pre-service drinking pattern, a very little, anecdotal, bit about his in-service drinking, and there was much known about his post-service drinking history. In the present case nothing is known directly about his alcohol consumption before or during service. In contrast to Re Bull (above), in the present case there is psychiatric evidence from Dr Gertler. He speaks in terms of the veteran suffering from psychoactive substance abuse and dependence as a result of stressful events in Papua New Guinea.
The tribunal considers that this is material that supports a connection between the veteran's operational service and his alcohol history. The tribunal therefore finds that the applicant has established a reasonable hypothesis.
can the tribunal be satisfied beyond a reasonable doubt that the veteran's death was not war-caused?This question is prompted by step four in the Deledio case (above). The respondent's arguments have largely been considered already in relation to step 3 of the Deledio (above) principles. Of these arguments the strongest relate to Mrs Ferres's credibility given her vagueness and inconsistency regarding the deceased veteran's drinking history prior to their meeting. There was also the documentary evidence suggesting that the veteran drank less, notably in the 1960s, than Mrs Ferres suggested. The tribunal does not consider these matters sufficient to prove beyond a reasonable doubt that the veteran's cerebrovascular accident was not war-caused. While relevant, the inconsistent documentary evidence could be explained by under-reporting on the part of the veteran, or by fluctuations in his drinking pattern over the years. In the tribunal's view there is a credible link between the veteran's stress in war time and his final level of alcohol consumption which serves as the backbone to a finding that he died because of a war-caused disease. This has not been dislodged by the respondent.
CONCLUSIONThe tribunal has concluded that the veteran's death was war-caused as required by the Act. This means that the applicant qualifies for a War Widow's Pension with effect from 28 June 1998.
DECISIONThe tribunal sets aside the decision under review and decides that the death of Arthur Elgar Ferres was caused by a cerebrovascular accident that was war-caused. It decides also that the applicant qualifies for a War Widow's Pension with effect from 28 June 1998. The matter is remitted to the respondent for it to assess the applicable rate.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Sassella, Senior Member and Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate of Hearing 16 March 2001
Date of Decision 24 May 2002
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Dibbs Barker Gosling
Counsel for the Respondent Ms S Breuer, DVA Advocacy Service
Solicitor for the Respondent Mr J Marsh, DVA
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