Garrard and Repatriation Commission (Veterans' entitlements)

[2020] AATA 538

Garrard and Repatriation Commission (Veterans' entitlements) [2020] AATA 538 (13 March 2020)

Division:VETERANS’ APPEALS DIVISION

File Numbers:         2018/5156

Re:Rodney GARRARD

APPLICANT

AndREPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:13 March 2020

Place:Brisbane

The decision as to the Applicant’s claim for hypertension is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the finding that the Applicant’s hypertension is war-caused. 

...................................[SGD]..........................................

Senior Member Katter

CATCHWORDS

VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for disability pension – standard of proof – relevant Statements of Principles – hypertension – decision set aside and remitted for reconsideration

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

CASES

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408
Ellis v Repatriation Commission (2014) 142 ALD 352; [2014] FCA 847
Kaluza v Repatriation Commission [2014] FCA 1137

SECONDARY MATERIALS

Statement of Principles concerning hypertension No. 63 of 2013

REASONS FOR DECISION

Senior Member Katter

13 March 2020

APPLICATION

1. The Applicant seeks review of the decision as to hypertension not being war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”)[1].   

   [1]           Transcript, 4 December 2019, P-4 at lines 27-30 and 44-45.

   BACKGROUND

2. The Applicant served in the Royal Australian Navy[2].  The Applicant’s eligible operational service[3] for the purposes of the Act, which dates are not in contention[4], was as follows:  (a) 31 May 1965 to 22 June 1965; (b) 25 April 1966 to 6 May 1966; and (c) 25 May 1966 to 9 June 1966[5].

   [2]           Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, paragraph 2.

   [3]           Transcript 4 December 2019, P-6 at line 11.

   [4]           Transcript 4 December 2019, P-6 at lines 40-42.

   [5]           Transcript 4 December 2019, P-6 at lines 21-26.

3. By an Application for Review to this Tribunal dated 10 September 2018[6], the Applicant applied for review of the decision made on 10 July 2018[7], describing the decision as “ … hypertension, obstructive sleep apnoea and fractured leg were rejected as not service related”[8]. In the Application for Review, the Applicant stated as to why the decision is wrong:  “The decision is contrary to the evidence”[9].

   [6]           Exhibit1, T3, page 6.

   [7]           Exhibit 1, T3, page 6.

   [8]           Exhibit 1, T3, page 6.

   [9]           Exhibit 1, T3, page 6.

4. At the hearing on 4 December 2019 the Applicant withdrew the two conditions, described as fractured leg and obstructive sleep apnoea[10]. The Applicant referred to the decision of 15 February 2017 of the Respondent, which found that the Applicant’s hypertension and obstructive sleep apnoea were not related to service under the Act[11].  The Applicant stated that the condition diagnosed as hypertension is the subject of a claim dated 3 November 2016 and is part of a reviewable decision[12].

   [10]          Transcript 4 December 2019, P-4 at lines 34-45.

   [11]          Transcript 4 December 2019, P-4 at lines 28-30.

   [12]          Transcript 4 December 2019, P-5 at lines 1-2.

5. In a claim form dated 3 November 2016[13] the Applicant stated at Part E as to details of new disabilities now claimed as war or defence caused[14]:

   Disability 1 Hypertension

   Signs and symptoms

   High Blood pressure

   Hard to breathe

   Diseyness [sic]

   How do you believe your service caused, contributed to or aggravated this           disability?

   By Serving in NAVY and By Smoking in Service

   When did you first become aware of the signs and symptoms of the disability, or the aggravation of the disability? (approx. date if known) 1975.

   [13]          Exhibit 1, T56, page 292.

   [14]          Exhibit 1, T56, page 285.

6. At Part E of the form dated 3 November 2016, a medical practitioner, Dr Grant stated[15]:

   Medical diagnosis

   Diagnosis Hypertension

   Basis for diagnosis

   Repeat Readings Above 140/90 … .

   [15]          Exhibit 1, T56, pages 285 and 286.

7. The Respondent acknowledged the receipt of the claim of the Applicant as to hypertension on 12 December 2016[16], further to lodgement on 8 December 2016[17].  

   [16]          Exhibit 1, T62, page 313.

   [17]          Exhibit 1, T66, page 319.

8. The decision of the delegate of the Respondent dated 15 February 2017 decided that hypertension was not related to service[18].

   [18]          Exhibit 1, T66, page 319.

9. By correspondence dated 13 March 2017, as received by the Veterans’ Review Board (“the Board”) on 20 March 2017, the Applicant appealed against the decision to reject the Application as to hypertension as relating to service[19].

   [19]          Exhibit 1, T68, page 337.

10. On 11 April 2017 the Board acknowledged the Application for Review under s 135 of the Act as to the decision of the delegate of the Respondent dated 15 February 2017 refusing hypertension[20].  On 10 July 2018 the Board decided to affirm the decision of the Respondent dated 15 February 2017 as to hypertension not being related to service[21].

    [20]          Exhibit 1, T70, page 339.

    [21]          Exhibit 1, T81, page 384.

    EVIDENCE

11. The three periods of operational service, which were all on HMAS Melbourne, are not in contention[22].

    [22]          Transcript of 4 December 2019, P-6 line 42.

12. The Applicant joined the Royal Australian Navy in February 1962, when he was sixteen years of age[23].  The Applicant underwent initial training and training as a Writer, with service at HMAS Cerberus, HMAS Watson and HMAS Waterhen, before posting to HMAS Melbourne in 1964[24].

    [23]          Exhibit 5, Statement dated 30 April 2019, paragraph 3.

    [24]          Exhibit 5, Statement dated 30 April 2019, paragraphs 4 and 5.

13. The Applicant gave evidence as to his recollections on his state of mind when first receiving communications as to posting with HMAS Melbourne to Vietnam, stating that “[w]e were very apprehensive.  I was shit scared.[25]”

    [25]          Transcript of 4 December 2019, P-9 line 30.

14. The Applicant referred to a Gannet aircraft conducting “touch and goes” on HMAS Melbourne, at night, with helicopters flying in support during that training[26].  The Applicant stated that the Gannet aircraft were, by that time, used principally for training[27].  The Applicant recalled that three aircraft were lost overboard, with one fatality[28].  The Applicant stated that his recollection was that that fatality occurred before HMAS Melbourne travelled to Vietnam[29].  The Applicant gave evidence of his awareness of that fatality in the ‘aftermath’, after the incident had occurred[30].  The Applicant recalled that the fatality involved one of the aircrew, who went over the side and was not recovered[31].  The Applicant stated that he was told to “muster onto the flight deck and [was] ordered to clean up the mess on the deck”, being dressed in gumboots, with overalls and hard hats. The Applicant further stated that he slipped over whilst undertaking that work, hurting his right ankle, resulting in a half-cast on that ankle[32].

    [26]          Exhibit 5, Statement dated 30 April 2019, paragraph 10.

    [27]          Exhibit 5, Statement dated 30 April 2019, paragraph 11.

    [28]          Exhibit 5, Statement dated 30 April 2019, paragraph 10.

    [29]          Transcript of 4 December 2019, P-9 line 16.

    [30]          Transcript of 4 December 2019, P-9 lines 18-19.

    [31]          Exhibit 5 Statement dated 30 April 2019, paragraph 11.

    [32]          Exhibit 5 Statement dated 30 April 2019, paragraph 11.

15. The Applicant referred to a crash involving a Gannet aircraft on or about 28 April 1966, during flying operations in the Sulu Sea[33].  The Applicant stated that he was aware of that crash in its ‘immediate aftermath’[34].  The Applicant stated that, as to the crashes of the Gannet aircraft, he had particular feelings at that time[35]:  “ … we were already scared shitless just for being up there.  We were amongst another lot of blokes who were seasoned sailors.  … And we just had to shut up and put up.  We were scared.”

    [33]          Transcript of 4 December 2019, P-10 lines 26-30.

    [34]          Transcript of 4 December 2019, P-10 lines 29-30.

    [35]          Transcript of 4 December 2019, P-10 lines 35-38.

16. The Applicant stated that when he was at HMAS Cerberus he did not drink in Melbourne city as he did not have enough money, but waited until going to sea, where there was a beer issue, which was usually a large can[36].  The Applicant stated that he got a ‘taste for beer’ and started drinking several cans of beer a day, in that he could get it from other junior sailors who weren’t drinkers, either purchasing the beer or taking it off them, thereby having approximately two cans a day[37].  The Applicant stated that when HMAS Melbourne went to Vietnam drinking was not permitted, but when the Ship returned from the operational area it was “hell for leather again” and that he “tended to drink a heck of a lot more to try and calm your nerves”[38].  The Applicant stated that he got as much alcohol as he could and that it wasn’t hard to procure it, as there were a lot of junior sailors on board that didn’t drink and he could buy it or get it off them[39].

    [36]          Transcript of 4 December 2019, P-9 lines 40-45.

    [37]          Transcript of 4 December 2019, P-9 lines 45-46 and P-10 lines 1-2.

    [38]          Transcript of 4 December 2019, P-10 lines 4-9.

    [39]          Transcript of 4 December 2019, P-10 lines 10-13.

17. The Applicant gave evidence that a maximum day for him, during the relevant service on HMAS Melbourne was 3 cans of beer, with that being consistent for the entire week, whilst on board[40].  At the time of the conclusion of the Applicant’s first period of service in 1972 the Applicant stated that he was drinking 8-10 cans of beer per day[41].  In the period 1972 to 1975, the second period of service, the Applicant stated that he was drinking 8-10 cans of beer per day[42].  After discharge in 1975 the Applicant stated that he was drinking 10 standard drinks a day until 1986, for four days per week[43].  From 1987 to 1994 the Applicant was drinking 3-4 cans of beer on most days, with 10 cans of beer on a weekend, together with two bottles of scotch socially[44]. 

    [40]          Transcript of 4 December 2019, P-11 lines 25-31.

    [41]          Transcript of 4 December 2019, P-11 lines 36-37.

    [42]          Transcript of 4 December 2019, P-11 lines 40-47.

    [43]          Transcript of 4 December 2019, P-12 lines 1-4.

    [44]          Transcript of 4 December 2019, P-12 lines 6-11.

18. The Applicant stated that in 1994 he gave up drinking alcohol for 6 months at the time of a medical operation[45].  After that period in 1994, till the Tribunal hearing, the Applicant stated that he was drinking 3-4 cans of beer six days per week, with 10 cans of beer on one weekend day, together with two bottles of scotch socially[46].  The Applicant stated that on the day before the hearing on 4 December 2019, a Tuesday, he consumed 6 or 8 cans of beer[47]. 

    [45]          Transcript of 4 December 2019, P-12 lines 17-19.

    [46]          Transcript of 4 December 2019, P-12 lines 24-27.

    [47]          Transcript of 4 December 2019, P-12 lines 29-30.

19. The Applicant was shown a patient admission document dated 18 October 2001 where he was asked whether he drinks alcohol and he had ticked “no”[48].  The Applicant’s response to that was that he honestly did not know why he had ticked “no”[49].  In a document dated 28 May 2002, a patient admission document, the Applicant also ticked “no” as to the question whether he drinks alcohol[50].  The Applicant’s response as to why he had ticked “no”, was that he didn’t have a clue in that regard[51].  In a patient admission document dated 1 August 2003 the Applicant also ticked “no” as to a question whether he drinks alcohol and again stated that he did “not have a clue” as to why he had ticked “no”[52].  The Applicant agreed that all those documents had his signature on them[53]. 

    [48]          Transcript of 4 December 2019, P-12 lines 44-46 and P-13 lines 1-9.

    [49]          Transcript of 4 December 2019, P-13 lines 10-12.

    [50]          Transcript of 4 December 2019, P-13 lines 25-31.

    [51]          Transcript of 4 December 2019, P-13 line 33.

    [52]          Transcript of 4 December 2019, P-13 lines 36-45 and P-14 lines 1-2.

    [53]          Transcript of 4 December 2019, P-13 lines 14 and 39 and P-14 lines 4-5.

20. The Applicant was taken to a report by Dr Tyler, a respiratory general physician, from 2004, where Dr Tyler stated:  “He drank only occasionally”[54].

    [54]          Transcript of 4 December 2019, P-14 lines 25-35.

21. The Applicant was taken to a medical attendance note from 11 November 2005 with Dr Marley where it was recorded that the Applicant drank two standard drinks a day, with the days of the week when the applicant drank alcohol being noted as “less than monthly”[55].  As to whether the Applicant remembered telling Dr Marley that history, the Applicant stated:  “Wouldn’t have a clue if I did or if I didn’t”[56].  The Applicant stated that that was not a correct history of his alcohol consumption in 2005[57].

    [55]          Transcript of 4 December 2019, P-15 lines 13-37.

    [56]          Transcript of 4 December 2019, P-15 lines 38-40.

    [57]          Transcript of 4 December 2019, P-15 lines 41-42.

22. The Applicant was taken to a medical attendance report with a Dr Neilson from 28 January 2009[58], where it was recorded that the Applicant drank once a week[59].  The Applicant could not explain why that document was different to his evidence on 4 December 2019[60].  There was a further reference to not having “taken alcohol since 1994, but being a heavy drinker in the past”[61].  The Applicant was referred to a document dated 19 November 2018[62], from the Merewether family practice that stated that he was a non-drinker[63].  As to that document the Applicant stated that he would not have stated that he was a non-drinker and that he can’t explain the document[64].

    [58]          Exhibit 1, T46, page 232.

    [59]          Transcript of 4 December 2019, P-18 line 9.

    [60]          Transcript of 4 December 2019, P-18 line 14.

    [61]          Transcript of 4 December 2019, P-18 lines 26-27.

    [62]          Transcript of 4 December 2019, P-19 lines 45-47, P-20 lines 1-5.

    [63]          Transcript of 4 December 2019, P-20 line 8.

    [64]          Transcript of 4 December 2019, P-20 at lines 10-18.

    LEGISLATION

23. Where the Applicant has rendered “operational service”, as that phrase is defined in s 6 of the Act, the Applicant’s injury or disease will be found to be service-related if there is a reasonable hypothesis connecting the injury or disease to service: sub-ss 120(1) and (3) of the Act[65].  There is a note in sub-ss 120(1) and (3) that states that those sub-ss are “ ... affected by section 120A”.

    [65]          Paragraph 6 of the submissions of the Applicant dated 24 December 2019. See also Page 2,         paragraph 2 of the submissions of the Respondent dated 29 January 2020.

24. Sub-sections 120A(2), (3) and (4) are applicable, with the requirement for a factor stated in the relevant Statement of Principles to exist in order for a hypothesis to be considered reasonable[66].  Whilst the condition cannot be held to be related to service unless one of the factors in the Statement of Principles exist, there must be satisfaction beyond reasonable doubt that a factor does not exist before the claim can be rejected[67].

    [66]          Paragraph 7 of the submissions of the Applicant dated 24 December 2019 and page 2, page 2,      paragraph 3 of the submissions of the Respondent dated 29 January 2020.

    [67]          Paragraph 7 of the submissions of the Applicant dated 24 December 2019.

    CONSIDERATION

25. In Kaluza v Repatriation Commission [2014] FCA 1137 at [68] per Foster J, the following was stated:

    In Kaluza v Repatriation Commission (2011) 280 ALR 621 at 624 [15], the   Full Court explained the approach which the Tribunal was required to take                … .  The Full Court said:

    … As [the Applicant] contends those conditions are war-caused   based on operational service, the issues to be addressed by the   Tribunal were as follows … :

    1         The first question for the Tribunal was to identify the collection    of relevant symptoms which the Tribunal was satisfied   constituted the disease which the veteran contracted and   which was comprehended by the claim.  (Repatriation   Commission v Budworth (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCA Trans 303)).

    2         If the Tribunal was satisfied that the symptoms constituted an    injury or disease, as defined in s 5D of the … Act, then the   question of whether those symptoms were war-caused was   to be resolved in accordance with s 120(1) of the … Act as   qualified by s 120(3) and s 120A (Budworth (at [19])).

    3         In applying ss 120(1), 120(3) and 120A of the … Act, the    Tribunal was to consider all the material and determine   whether:

    (i)        it pointed to some fact or facts (the raised facts) which   supported an hypothesis connecting the disease with   the circumstances of operational service; and

    (ii)       that hypothesis can be regarded as reasonable, if the   “raised facts” are true.  (Bushell v Repatriation   Commission (1992) 175 CLR 408 (at 414)).

    4         If the “raised facts” pointed to one or more hypotheses of a    connection, then the decision-maker must decide whether a   Statement of Principles (SoP) was in force in respect of the   “kind of disease” from which the veteran suffers (Repatriation   Commission v Deledio (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCA Trans 302)).

    5         If an SoP is in force in respect of the kind of disease from    which the veteran suffers, then the hypothesis is reasonable   only if it is “upheld” by the SoP in the sense of being   “consistent with the ‘template’ to be found in the SoP”   (Deledio step three (at 97G)).

    6 If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission (1993) 177 CLR   564 (at 571)). The claim succeeds if it is not so disproved.

26. It does not appear to be in contention that the Applicant has “hypertension”[68], being persistently elevated blood pressure diagnosed by a medical practitioner[69]. There is satisfaction that the symptoms of the Applicant constitute an injury or disease as defined in s 5D of the Act.

    [68]          Page 3, paragraph 7 of the submissions of the Respondent dated 29 January 2020. 

    [69]          Paragraph 3(b) of the Statement of Principles concerning hypertension No. 63 of 2013. 

27. It is submitted by the Applicant “that the Applicant’s stressful experiences during his operational service resulted in him developing an increased alcohol consumption habit and alcohol consumption habit condition that led him to developing hypertension”[70].  That hypothesis does find “support” in the evidence and is not merely “left open”[71].  The Applicant, as referred to above, gave evidence that his beer intake increased considerably when he was able to drink, during the operational periods of service[72], further to stressful experiences during that particular service[73]. Therefore, in applying ss 120(1), 120(3) and 120A of the Act, there are facts which support a hypothesis connecting the hypertension with the circumstances of operational service.

    [70]          Paragraph 12 of the submissions of the Applicant dated 24 December 2019. 

    [71]          Ellis v Repatriation Commission (2014) 142 ALD 352; [2014] FCA 847 at [15] per Gordon J.

    [72]          Transcript of 4 December 2019, P-10 lines 10-13.

    [73]          Paragraph 19 and 26 of the submissions of the Applicant dated 24 December 2019.

1. The relevant statement of principles is the Statement of Principles concerning hypertension No. 63 of 2013[74].  The factor in the Statement of Principles that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the circumstances of a person’s relevant services is:  “ … (b) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension … ”[75]. 

   [74]          Paragraph 13 of the submissions of the Applicant dated 24 December 2019 and page 2, paragraph 5           of the submissions of the Respondent dated 29 January 2020.

   [75]          Paragraph 6(b) of the Statement of Principles concerning hypertension No. 63 of 2013, paragraph 14           of the submissions of the Applicant dated 24 December 2019 and page 2, paragraph 6 of the     submissions of the Respondent dated 29 January 2020. 

2. Paragraph 3 of the Statement of Principles No. 63 of 2013 states that:

   (b)       For the purposes of this Statement of Principles, “hypertension” means                persistently elevated blood pressure, diagnosed by a medical practitioner   and evidenced by:

   (i)        a usual clinic blood pressure reading of greater than or equal to    140mmHg systolic or greater than or equal to 90mmHg diastolic, or   equivalent levels using ambulatory blood pressure measurement; …

   This definition excludes temporary elevations in blood pressure from    conditions such as acute renal failure, neurogenic hypertension, eclampsia,   pre-eclampsia, gestational hypertension or medications.   

3. The Applicant submits that the “ … medical evidence points to the date of clinical onset of hypertension being circa 1999”[76], with the Respondent also referring to the Applicant’s submission as to 1999 in terms of “claimed onset” of hypertension[77].  

   [76]          Paragraph 23 of the Submissions of the Applicant dated 24 December 2019, referring to the record of          the Merewether Medical Centre.  See Merewether Family Practice fax 25 October 2004 at page 409         from Dr John Bamford stating past medical history:  “Date 14 July 1999 Condition Hypertension … ”.

   [77]          Submissions of the Respondent dated 29 January 2020, page 2, paragraph 4.

4. As to whether the Applicant was consuming an average of at least 300 grams per week of alcohol for at least the six months prior to July 1999, the Applicant’s evidence was that from 1994 to the hearing he was drinking 3-4 cans of beer six days per week, with 10 cans of beer on one weekend day, together with two bottles of scotch socially[78].  The Respondent states that apart from a brief period in 1994, the Applicant has given evidence that he has continuously consumed alcohol to an increasing level and frequency since 1965[79].  Further, the Respondent states that from 1965 to 2001 there are no documents specifically addressing the Applicant’s consumption of alcohol and that the only evidence of the Applicant, other than the oral evidence at the hearing, for that period is contained in his statement made in August 2019[80]. 

   [78]          Transcript of 4 December 2019, P-12 lines 18-27.

   [79]          Page 3, paragraph 8 of the submissions of the Respondent dated 29 January 2020. 

   [80]          Page 3, paragraph 9 of the submissions of the Respondent dated 29 January 2020. 

5. The Applicant was taken to, as referred to above, medical documents after 2001 where he was asked whether he drinks alcohol and to which he responded “no”[81].  The Applicant, as referred to above, stated that he ‘didn’t have a clue’ as to why he had responded “no”[82].  The Applicant agreed that all those documents had his signature on them[83].  In those documents there was a sole pre-2001 reference, in 2009, to not having “taken alcohol since 1994, but being a heavy drinker in the past”[84].  The Applicant submits that[85]:

   There is evidence before the Tribunal which does not reconcile with the history of alcohol consumption given by [the] Applicant in his evidence at the hearing.  The Applicant was unable to explain why he gave these other contradictory accounts. … [T]here are undoubtedly plausible possibilities as to why the Applicant might understate his level of alcohol consumption in those other forums.  For instance, it is notorious that alcoholics routinely understate their drinking habits.   Against this, it would be submitted that the Tribunal would assess the Applicant as a witness of truth endeavouring to do his best to be open[,] candid and reliable in his evidence to the Tribunal. 

   The Respondent refers to the documents after 2001, which the Respondent took the Applicant to in evidence, as referred to above, as “inconsistencies”[86].

   [81]          Transcript of 4 December 2019, P-12 lines 44-46 and P-13 lines 1-9.

   [82]          Transcript of 4 December 2019, P-13 lines 33-34.

   [83]          Transcript of 4 December 2019, P-13 lines 14 and 39 and P-14 lines 4-5.

   [84]          Transcript of 4 December 2019, P-18 lines 25-27.

   [85]          Paragraph 25 of the submissions of the Applicant dated 24 December 2019.

   [86]          Page 4, paragraph 11 of the submissions of the Respondent dated 29 January 2020.

6. The documents after 2001, to which the Applicant was taken in evidence are inexplicable and inconsistent with his evidence as to his consumption both at the time of those documents and prior, however, that lone retrospective document of 12 March 2009 did refer to the Applicant being “a heavy drinker in the past” (although it stated also that “he takes no alcohol since 1994”)[87].  In Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 413 per Mason CJ, Deane and McHugh JJ, it was stated that s 120(3) of the Act is: “ … not concerned with conflicts in the material, whether they be of opinion or fact.  The purpose of sub-s (3) … is to ensure that a claim to which s 120 applies is not met unless there is some material which raises the relevant causal hypothesis”.  It is found that the Applicant consumed an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension, by assessing all of the material in evidence, as referred to above.

   [87]          Transcript of 4 December 2019, P-18 and P-19.

7. In that that factor of the consumption of alcohol is found, it can therefore be said in accordance with sub-paragraph 6(b) of the Statement of Principles concerning hypertension No. 63 of 2013 that “a reasonable hypothesis has been raised connecting hypertension ... with the circumstances of [the Applicant’s] relevant service”.  Therefore, it is found that the hypothesis is reasonable in connecting the hypertension with the circumstances of service, as it is found that it is “upheld” by the Statement of Principles in the sense of being “consistent with the template” in the Statement of Principles.

8. As stated in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 427 per Brennan J, where there was a question as to a condition of hypertension relating to the consumption of alcohol with war service[88]:

   However, in a case where a causal connection between the circumstances of operational service and a veteran's morbid condition is a matter of hypothesis only, the raising of a reasonable hypothesis by the evidence not only precludes the operation of sub-s (3) but also will generally preclude a determination under sub-s (1) that there is no causal connection.  In such a case, where a decision-maker makes a determination under sub-s (1) on the same material as that which led to a conclusion under sub-s (3) that there is a "reasonable hypothesis" of connection, it would be impossible to conclude beyond reasonable doubt that there is no causal connection.  Before a negative conclusion could be reached, the decision-maker would have to be satisfied beyond reasonable doubt of the existence of some further    fact which destroys the applicability of the reasonable hypothesis of causal connection.

   [88]         See Bushell v Repatriation Commission (1992) 175 CLR 408 at 410 and 429 per Brennan J.

9. It is decided that the hypothesis that the Applicant’s stressful experiences during his operational service resulted in him developing an increased alcohol consumption habit and condition that led him to developing hypertension is not disproved beyond reasonable doubt. Further to the consideration of the evidence under s 120(1), where the hypothesis is upheld by the Statement of Principles and is not unreasonable under s 120(3), there is not satisfaction beyond reasonable doubt of the existence of facts which “destroy” the applicability of the reasonable hypothesis of causal connection. The claim as to hypertension succeeds therefore, as it is not so disproved.  It is therefore found that the hypertension is war-caused. 

   DECISION

10. The decision under review, rejecting the Applicant’s claim in accordance with the Act, is set aside and the matter is remitted to the Respondent for reconsideration[89], in accordance with the finding that the Applicant’s hypertension is war-caused in accordance with the Act.

    [89] Section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

...........................[SGD]..................................

Associate

Dated: 13 March 2020

Date of hearing:	4 December 2019
Date final submissions received:	29 January 2020
Counsel for the Applicant: Solicitor for the Applicant:	Mr A. C. Harding Terence O’Connor
Advocate for the Respondent: Solicitors for the Respondent:	Mr P. J. Crethary Moray & Agnew Lawyers