Gloria Baldock v Repatriation Commission
[2007] AATA 51
•7 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 51
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/869
VETERANS' APPEALS DIVISION ) Re GLORIA BALDOCK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date 7 February 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
........[Sgd].......
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS –application for war-widows pension – operational service – claim conditions were war-caused – application of Statement of principles –anxiety disorder –malignant neoplasm of the colorectum – decision affirmed.
Veterans’ Entitlements Act 1986 ss 6, 7, 8, 120, 120A, 196B
Adminstative Appeals Tribunal Act 1975 s 37
Secretary, Department of Social Security v Murphy [1998] FCA 809
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Starcevich v Repatriation Commission (1987) 76 ALR 449; 14 ALD 160
Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383
Bushell v Repatriation Commission (1992) 175 CLR 408
Hutton v Repatriation Commission [1998] 56 FCA (4 February 1998);(1998) 49
ALD 8
Hillier and Repatriation Commission [2004] AATA 897
Schmidt v Repatriation Commission [2004] FCA 1158
Bull v Repatriation Commission [2001] FCA 1832
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Stoddart (2003) 77 ALD 67
Repatriation Commission v Gorton (2001) 110 FCR 321
Haughey and Repatriation Commission [2005] AATA 189
Fenner v Repatriation Commission [2005] FCA 27
Hill v Repatriation Commission [2005] FCAFC 23
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Bey (1997) 79 FCR 364
Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153; (2003) 74 ALD 37
Grundman v Repatriation Commission [2001] FCA 892
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921Woodward v Repatriation Commission [2003] FCAFC 160
Lees v Repatriation Commission (2002) 125 FCR 331
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356REASONS FOR DECISION
7 February 2007 Mr SC Fisher, Member Introduction And Background
1. Mr Hedley Walter Keith Baldock (the veteran) was born on 30 November 1912. The veteran married the Applicant on 16 September 1936. The veteran served with the Royal Australian Army from 2 February 1942 until 9 January 1946. The veteran served in the Southwest Pacific area between 3 August 1945 and 29 December 1945, and so his war service constitutes operational service. The veteran died on 27 November 1998 aged 85 years.
2. The Applicant is a claimant for widow’s pension.
Jurisdiction
3. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision under Review
4. The decision under review is a decision made by the Repatriation Commission (the Respondent) on 2 December 2003 refusing the claim dated 20 November 2003 of Mrs Gloria Florence Baldock (the Applicant) that the death of her late husband, the veteran Mr Hedley Baldock, was service related. The 2 December 2003 decision was affirmed by the Veterans' Review Board on 4 August 2004. The Applicant appealed to this Tribunal on 9 November 2004.
The Role of the Tribunal
5. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] FCA 809. The Tribunal is guided by the norm that it should reach the correct or preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: section 33(1)(c) of the Administrative Appeals Tribunal Act 1975. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
6. This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as veteran’s pension and related entitlements.
The Material Before the Tribunal
7. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 2Report of Dr A Majumdar, Psychiatrist, dated 28 September 2005.
Exhibit 3Letter dated 19 October 2005 from Files Stibbe Lawyers to Dr A Majumdar and a letter dated 9 December 2005 from Dr A Majumdar to Files Stibbe Lawyers.
Exhibit 4DVA Summary of Case History (October 1979)
8. The Applicant was represented by Mr P B O'Neill of counsel. Mr O'Neill was instructed by Files Stibbe Lawyers. Exhibits 1 – 3 were lodged on behalf of the Applicant. The Applicant lodged a Statement of Facts and Contentions together with written submissions to the Tribunal.
9. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1. Exhibit 4 was lodged on behalf of the Respondent.
10. The Respondent was represented by Mr Jeff Kelly, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal. The Respondent did not call any evidence.
11. The Applicant lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence for the Applicant
12. The Applicant gave evidence in person. In addition, Dr Ashim Majumdar gave evidence for the Applicant.
Evidence of the Applicant
13. The evidence of the Applicant to the Tribunal was as follows (it included a written statement made 1 November 2004):
A.The Applicant said that she met her husband in 1933, and that they were married in 1936.
B.The Applicant said that before her husband enlisted in the Australian Army in 1942, he did not suffer from any anxiety or stress-related problems, drank alcohol only on very rare occasions and suffered from no other illnesses whatsoever.
C.The Applicant said that her husband was a loving father and husband who was fit, healthy and of a good nature before his war service.
D.The Applicant said that her husband had refused to talk about his war service to her during the war.
E.The Applicant said that there was a marked change in the veteran after his World War II service. Some of these changes included in having a "very short fuse”, being very quick to anger, impatience with his children and that he was verbally and emotionally abusive towards his wife.
F.The Applicant said that the veteran drank three or four tallies a day of heavy beer, together with the occasional whisky.
- The Applicant said that her husband didn't sleep well and became extremely restless and agitated following his war service.
H.The Applicant said that after the war the veteran's nerves were "shot", that he would not talk about the war and that he appeared to her to be extremely stressed.
I.The Applicant had the clear impression that alcohol was readily available to the veteran during his war service, and that she believed it was obvious he was drinking alcohol to help them with the stress he suffered during the war.
- In cross-examination, the Applicant said that her husband had been "damn near impossible" to be with during the periods of leave he spent with her during his war service (which was once every 6 or 12 months).
Evidence of Dr Ashim Majumdar
14. Dr Ashim Majumdar is a Psychiatrist in private practice and provided a report dated 28 September 2005 which became Exhibit 2 in these proceedings. Dr Majumdar interviewed the Applicant twice, and reviewed various documents for the purpose of providing his report and giving evidence.
15. The substance of the evidence provided by Dr Majumdar to the Tribunal is as follows:
A.The factual history concerning the veteran was much the same as the written statement dated 1 November 2004 of the Applicant.
B.The veteran suffered from alcohol dependence. It was Dr Majumdar’s opinion that his alcohol dependence developed during his war service and that the diagnosis fulfilled the criteria described in the SoP.
C.Dr Majumdar said that he was of the opinion that the veteran was exposed to a severe psychosocial stressor during the war and that he developed an anxiety disorder.
D.Dr Majumdar opined also that he might have developed PTSD but the details of the stressor that he was exposed to were unavailable.
E.Dr Majumdar said that the personality changes of the veteran after his war service indicated that something had happened to the veteran during his war service, and that this would have been something in the nature of a significant stressor.
F.Dr Majumdar acknowledged in cross-examination that the veteran had been a transport driver.
G.Dr Majumdar acknowledged in cross-examination that he did not have precise details of what took place during the war service of the veteran, but that he had enough information to make a posthumous diagnosis.
H.Dr Majumdar said that the anxiety disorder of the veteran led to his alcohol abuse.
I.Dr Majumdar said that the alcohol masked the symptoms of anxiety disorder.
- Dr Majumdar said would not be possible to go through each of the criteria for general anxiety disorder in connection with the veteran because the information required to traverse each of these criteria was not available except indirectly through the Applicant.
Medical evidence relating to the veteran
16. The death certificate in evidence before the Tribunal recorded the veteran as having died from "disseminated carcinoma of [the] bowel” which had been suffered for a period of 7 years prior to his death on 27 November 1998.
17. The veteran was hospitalised for peptic ulcer in 1942 and for dyspepsia in 1944. The veteran suffered a fractured leg and underwent eye surgery during his war service.
Discussion of the Medical evidence
18. Dr Majumdar’s evidence is based on hearsay, which is understandable given the sad death of the veteran.
19. Dr Majumdar’s diagnosis of generalised anxiety disorder is speculative. The Tribunal was not persuaded that Dr Majumdar had sufficient information before him to enable him to satisfy each of the criteria for generalised anxiety disorder in DSM – IV in connection with the veteran. Dr Majumdar made sweeping assertions of compliance by the veteran in connection with the individual criteria for generalised anxiety disorder in DSM – IV. When pressed in cross-examination with details of the evidence on which it based each of the clinical findings corresponding to those criteria, Dr Majumdar was not able to substantiate these clinical findings to the satisfaction of the Tribunal.
Discussion of the non-medical evidence
20. The Tribunal is left with the impression that whether or not the veteran was involved in an event that caused him to experience a severe psychosocial stressor is largely a matter of conjecture based on circumstantial evidence. While circumstantial evidence may be influential and even be decisive in the right case (because the cumulative weight and effect of such circumstantial evidence enables the court or tribunal to draw or infer the necessary further fact or facts relevant to the ultimate issue), it is a matter for the Tribunal as an appellate decision-maker to weigh up and sift the circumstantial evidence carefully.
21. The Tribunal notes that the veteran never described to the Applicant a specific war-related incident or incidents which may have caused him to experience a severe psychosocial stressor which ultimately caused his medical conditions. The evidence of the Applicant to the Tribunal was that the veteran disliked talking about his war experience. The Tribunal accepts and finds that the veteran was a markedly different man before his overseas military service than he was afterwards, and acknowledges that his family bore the brunt of some of his changed negative behaviours after his return to Australia in 1946. There is nothing recounted by the veteran to the Applicant which described the veteran as having experienced a severe psycho-social stressor.
22. The Tribunal notes that there is no corroborating evidence which supports the contention made by the Applicant that the veteran experienced a severe psychosocial stressor (for example, evidence from anyone the veteran served with or any evidence from the unit war diary about events which constitute a severe psychosocial stressor). The veteran was engaged in a non-combatant role (transport driver) which did not expose him to direct enemy action.
Submissions of the Applicant
23. The Applicant contended that the generalised anxiety depression suffered by the veteran emanated from his operational service such that there was a reasonable hypothesis under section 120 of the Act, which reasonable hypothesis could not be disproved beyond reasonable doubt. The Applicant relied on factor 5(c) of the Statement of Principles for malignant neoplasm of the colorectum, Instrument No. 1 of 2004, as providing the necessary nexus between operational service and his medical conditions.
24. The Applicant contended that the medical evidence associated with the veteran should be seen as attributing the genesis of the anxiety disorder to his operational service.
25. The Applicant relied upon Starcevich v Repatriation Commission (1987) 76 ALR 449 at 454; 14 ALD 160, where Fox J. said:
... the legislation should in my view be given a reasonably liberal interpretation; it has often been pointed out that it is a matter of great public importance to provide adequately for incapacitated ex-servicemen.
26. The Applicant relied upon Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383 at 386 where Selway J said:
First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.
Next, the Tribunal was required to determine on balance of probabilities what ‘kind of death’ Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.
(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.
(d) If only a determination under s 180A(2) is applicable, then the application must fail.
(e) If no SoP and no determination is applicable at all or to a particular “kind of death”, then the methodology in Byrnes is applicable in relation to that.
27. Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415 was relied on, in particular:
The material will raise a reasonable hypothesis within the meaning of section 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
…
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s.120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another.
28. The following passage from Hutton v Repatriation Commission [1998] 56 FCA; (1998) 49 ALD 8 at 12 was urged on the Tribunal:
In my opinion, in taking administrative decisions under the Veterans' Entitlements Act, it is inappropriate to take such a technical approach to decision-making. An administrative decision-maker is bound to deal with the substance of the matter in a sensible, efficient, administrative manner.
29. The Applicant contended that:
A.The veteran's cancer was a direct result of his alcohol consumption which in turn was war-service related.
B.Hancock meant that the Tribunal should be satisfied on the balance of probabilities that the pre-conditions other than causation have been made out because the Applicant’s husband was a veteran, that he had died and the Applicant was his widow.
C. The Applicant relied upon SoP No 1 of 2004 (malignant neoplasm of the colorectum), in particular Factor 5(c).
D. The Deledio steps had to be applied in relation to the kind of death.
E. The alcohol questionnaire signed by the Applicant on 7 November 2003 satisfied the alcohol consumption criteria in SoP No 1 of 2004, Factor 5(c).
F. The evidence of the Applicant and the history of the veteran (as recounted above) supported the claim that the veteran’s of post war drinking increased solely as a result of this war service.
G. The evidence of Dr Majumdar supported the causal link between the medical condition of the veteran and his war service. Dr Majumdar opined that the veteran self-medicated using alcohol to alleviate his anxiety disorder.
H. The Respondent did not call any medical evidence to contradict the medical evidence of the Applicant.
I. The Respondent cannot be satisfied beyond reasonable doubt that sufficient grounds do not exist connecting the veteran's medical condition with his war service.
J. The decision of the Respondent dated to December 2003 should be set aside and substituted by a decision to the effect that the veteran's death was war-caused.
Submissions of the Respondent
30. The contentions of the Respondent were to the following effect:
A. The veteran died from disseminated carcinoma of the bowel.
B. The Respondent disputed that this condition was war caused on the basis that the alcohol consumption was not due to his war service.
C. The only factor in the relevant SoP that may apply in this matter is that contained in Factor 5(b)(ii) and 5(c). It was conceded that the alcohol consumption levels mentioned in Factor 5(c) were satisfied.
D. The Respondent contended that the only time the veteran was in an operational area was between 3 August 1945 and 29 December 1945, when he was posted to Lae, New Guinea. By this stage of the war, the Japanese had been routed from the area, the area was subjected to total control of Allied forces and there were no records of any incidents concerning hostile enemy action during this time.
E. The Respondent contended that there is no evidence of any other stressful events that the veteran experienced during his service. Neither was there any evidence that he had a service-related psychiatric disorder for which alcohol may have been used to self-medication purposes.
F. The Respondent contended that is only a temporal link rather than a causal link between the alcohol consumption of the veteran and his war service. The Respondent relied on medical records which describe the veteran is a "moderate drinker" when admitted to RGH Daw Park in 1979.
G. The veteran did not experience any severe psychosocial stress source as a result of war during his war service which were causative of his alcohol abuse and ultimately of his death from bowel cancer.
The Legislation
31. Section 8(1)(b) of the Act provides that the death of a veteran is taken to have been war-caused if that death arose out of, or was attributable to, any eligible war service rendered by the veteran. It was common ground in this appeal that the veteran had rendered operational service, and so rendered eligible war service within the scheme of sections 6 to 6F and section 7 of the Act. A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: see Hillier v Repatriation Commission [2004] AATA 897 at [10].
32. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.
33. As the veteran has performed operational service, as defined in section 6 of the Act, the determination of whether his condition of bowel cancer is war-caused is to be made by applying sections 120(1) and 120(3), as affected by section 120A, of the Act. Sections 120(1) and 120(3) provide as follows:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
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.
34. Authority establishes that when applying section 120(3), decision-makers (including this Tribunal) must look at all the material, not just some of it, that is before the decision-maker, including material that supports and opposes the formation of the reasonable hypothesis. It is not entitled to find facts or reject matters. The decision maker must consider the whole of the material before it – see Bull v Repatriation Commission[2001] FCA 1832 at [21] and Kattenberg v Repatriation Commission[2002] FCA 412 at [38] and [39].
35. Under section 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
(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.
36. According to the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Stoddart [2003] FCAFC 300, at [10] the standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether an injury or a disease is war-caused where a claim relates to operational service, is dealt with in sections 120(1) and (3) of the Act.
37. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of anxiety disorder and alcohol dependence or alcohol abuse pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. There were no determinations of the Repatriation Commission under section 180A(2) that are relevant to this case, and the parties did not contend to that effect. An SoP is brought into existence in order to comply with section 196B: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42]. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15].
38. Section 196B(14) of the Act sets out the relationships to service contemplated by the SoP’s, whether the service is war service or defence service: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:
196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
Diagnosis
39. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act. The evidence of Dr Majumdar was that the veteran suffered from anxiety disorder which led to alcohol dependence.
40. The death certificate of the veteran recorded the cause of death as "disseminated cancer of the bowel". Based upon the evidence before the Tribunal, the Tribunal is reasonably satisfied that the veteran suffered from this condition for 7 years’ duration before his death. In the opinion of the Tribunal, the diagnosis of anxiety disorder made by Dr Majumdar is speculative. This diagnosis was not supported by any other evidence of any other medical practitioner who treated the veteran during his life.
41. Essentially, the chain of reasoning pursued by the Applicant in these proceedings insofar as the medical conditions of the veteran are concerned is as follows. The Applicant asserts that the anxiety disorder suffered by the veteran led to his bowel cancer, which was the immediate or proximate cause of death.
The Deledio steps
42. In Deledio the Full Federal Court summarised (at 97-98) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
43. The Full Court of the Federal Court made a correction to the second sentence of the above formulation in Bull v Repatriation Commission [2001] FCA 1832 at [14]; (2001) 34 AAR 326 at 330: see Fenner v Repatriation Commission [2005] FCA 27 at [13]. This correction is not material to the present appeal.
44. Despite occasional deviations (see that noted by the Full Court of the Federal Court in Hill v Repatriation Commission [2005] FCAFC 23) the four step Deledio template continues to be normative in veterans’ jurisprudence, and it will be followed in this case consistent with the constant and consistent stream of authority in this domain. The Tribunal noted that the four step Deledio template is cumulative, that is to say it is necessary to satisfy each of the four steps if a veteran's claim or the claim of a dependant of a veteran is to be accepted as war-caused within the meaning of the Act.
The Mines and Hancock Preliminary Step
45. In Mines v Repatriation Commission [2004] FCA 1331 at [37], Gray J made these important observations about the Deledio reasoning process:
[37] …The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.
Gray J went on to say -
[38] …Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service. …
46. The Tribunal also had regard to Repatriation Commission v Hancock [2003] FCA 711 at [9]:
[9] Another problem is that there is necessarily at least two extra steps before step one of the Deledio methodology. The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation, on balance of probabilities. In this case those pre-conditions were that Mr Hancock was a veteran, that the Respondent was his widow and that Mr Hancock had died. Secondly, in order to ascertain whether a SoP applies it is necessary to identify the ‘kind of injury’ or the ‘kind of death’ suffered by the veteran: see s 120A(2) and (4) of the Act. With most injuries and probably even most diseases this will usually be obvious enough (which is probably why the step was not mentioned in Deledio). But in cases such as the present, the identification of the ‘kind of death’ is the critical step in the analysis. In determining the ‘kind of death’, proof is on balance of probabilities: see s 120(4) of the Act and see Fogarty v Repatriation Commission [2003] FCAFC 136 at [34]; Benjamin v Repatriation Commission (2001) 70 ALD 622 at [53]-[54].
47. This concludes the preliminary or antecedent investigation before the first Deledio step is applied.
48. Before the well-known Deledio framework is applied, it is necessary to make a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service: see Mines v Repatriation Commission [2004] FCA 1331 at [37] and Repatriation Commission v Hancock [2003] FCA 711 at [9]. These two preliminary findings provide the gateway into the Deledio framework of analysis. In this case, the Tribunal is satisfied that the veteran has a medical condition in the nature of a physical ailment, disorder, defect or morbid condition within the meaning of "disease" in section 5D of the Act, namely disseminated cancer of the bowel. The Tribunal is satisfied also that the veteran rendered operational service in an operational area within section 6A of the Act (this was common ground between the parties).
Application Of The Law To The Injury Alleged To Be War-caused
The first Deledio step
49. The Tribunal must determine that the material before it gives rise to a hypothesis connecting the disease to the service rendered. The Applicant's contention is that the medical conditions suffered by the veteran were related to service. This contention was put in essentially in these terms: the Applicant submitted that the veteran suffered from an anxiety disorder during his service which would infer or suggest that he experienced some form of traumatic events which in turn led to his excessive drinking. The chain of reasoning employed by the Applicant in this regard was as follows:
A.The Veteran did not drink prior to war service, but on conclusion drinking on regular basis
B.Alcohol was available during his service;
C.The Veteran told the Applicant that his drinking was due to his war service;
D.The Veteran suffered stress following his war service;
E.The Veteran’s operational service included the most stressful parts of WWII;
F.The Veteran suffered from dyspepsia during his war service;
G.The evidence of Dr Majumdar is that the Veteran suffered from alcohol dependence and that was related to war service because the Veteran suffered from an anxiety disorder arising from service and used the alcohol to self-medicate.
H.Therefore, it could be concluded that there is material that points to the hypothesis that the Veteran drank to excess as a result of his war service.
50. Not unexpectedly, the Respondent contested the making of this hypothesis, pointing to the absence of a causal link between the service of the veteran (which ended on 9 January 1946, with operational service having concluded earlier on 29 December 1945) and the onset of the anxiety disorder which was diagnosed speculatively by Dr Majumdar on a non-specific date (which by implication was during the war service of the veteran).
51. The Tribunal took into account what the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481 at 490 that there must be material pointing to a connection between the veteran’s disease and his or her war service. Either the material points to a connection or it does not. If there is no such connection, then the deficiency cannot be cured by resort to a procedural provision such as section 119(1)(g) (see also Fenner v Repatriation Commission [2005] FCA 27 at [26] – [ 29], citing Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153 at [46]; (2003) 74 ALD 37 at 43 per Jacobsen J. and Grundman v Repatriation Commission [2001] FCA 892 at [33]; (2001) 66 ALD 125 at 135 per Gray J). In terms of aligning the statutory direction to act according to substantial justice with the requirements for a reasonable hypothesis under section 120, the Federal Court in Repatriation Commission v Bey has stated that section 119 does not displace section 120. In a similar vein, this Tribunal said in Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922 – 923 that section 119(1)(h) cannot be used to ensure a benign medical interpretation of facts once those facts have been determined relying on this legislative signpost.
52. In this case, the Tribunal is not satisfied within section 120 that there is a reasonable hypothesis linking the speculatively-diagnosed anxiety disorder of the veteran which led to his alcohol consumption which in turn led to his death from disseminated bowel cancer with his operational service. However, if the Tribunal is wrong in that regard, then alternatively based upon the evidence before the Tribunal, the Tribunal would be satisfied that there is a hypothesis linking the subsequent bowel cancer suffered by the veteran with his operational service.
The Second Deledio Step
53. The second Deledio step is to determine the relevant SoP. In this case, the relevant SoPs is:
§Malignant Neoplasm of the Colorectum (Instrument No 1 of 2004).
The Third Deledio Step: General Considerations
54. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 36. The Tribunal cannot make findings of fact at this point.
55. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the veteran’s condition and his service. The Tribunal has to decide whether the applicable SoP upholds the contention that the Applicant’s injury is, on the balance of probabilities, connected with the Applicant's service (section 120B(3)(b) of the Act). The relationship to service must be one of the relationships prescribed in section 196B(14) of the Act: Haughey and Repatriation Commission [2005] AATA 189 at [63].
The Third Deledio Step: bowel cancer
56. Relevant excerpts from Malignant Neoplasm of the Colorectum (Instrument No 1 of 2004) are as follows:
Kind of injury, disease or death
2. (a) This Statement of Principles is about malignant neoplasm of the colorectum and death from malignant neoplasm of the colorectum.(b) For the purposes of this Statement of Principles, “malignant neoplasm of the colorectum” means a primary malignant neoplasm arising from the epithelial cells of the colorectum, which extends from the caecum, including the ileocaecal junction, to the junction with the anal canal. This definition of malignant neoplasm of the colorectum excludes soft tissue sarcoma, carcinoid tumour, non-Hodgkin’s lymphoma and Hodgkin’s disease.
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 depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:…
(c) drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum;
57. The Tribunal noted that the submissions of the Applicant relied specifically on paragraph 5(c) of this SoP.
The Third Deledio Step: Consideration of the medical evidence and the SoP§
58. The chain of reasoning that the Tribunal proceeds with in this case is that the Applicant contended that her husband's war service caused his anxiety disorder which in turn caused his bowel cancer which was the immediate or proximate cause of death.
59. Clause 4 of the SoP identified above requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran. It is common ground between the parties that the Applicant has rendered “relevant service” within the meaning of clause 7 of the SoP. What is disputed (as was argued in effect by the Respondent) is whether the Applicant developed anxiety disorder because of his operational service (a subset of “relevant service”). The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of the SoP does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. To some extent, calls for operates against the backdrop of section 196B(14) of the Act (reproduced above) which states comprehensively and exhaustively the factors which provide the relevant nexus between an injury or disease sustained by a veteran and war service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd(1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker, and this determination depends upon the nature, quality and probative value of the relevant and admissible evidence before the Tribunal.
60. In effect, the Applicant pinned her case upon establishing that her husband's war service caused anxiety disorder which led ultimately to his alcohol consumption which in turn caused or contributed to his bowel cancer which in turn led to his death. Clause 4 of the SoP identified above requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran.
61. The Applicant contended that her husband's anxiety was caused by his war service. On the evidence, the earliest formal diagnosis of anxiety was made posthumously (refer to Exhibits 2 and 3). No anxiety was ever formally diagnosed during the war service of the veteran, or during his lifetime. No post-service medical evidence was adduced from any of the treating doctors of the veteran. In medical records relating to October 1979 (Exhibit 4), the veteran was diagnosed with a "benign prostatic hyperplasia", and underwent an "benign hypertrophy of [the] prostate". The medical history of the veteran was recorded as “Appendicectomy. Left eye operation. Cartilage, left knee."
62. From the perspective of the Applicant, it is critical that she demonstrate and establish the nexus between the war service of the veteran and his anxiety disorder which led to his alcohol consumption which in turn caused his bowel cancer. Relevant excerpts from the SoP (Instrument No 1 of 2004) have been set out earlier in these Reasons for Decision. Accordingly, the question for the Tribunal is whether the veteran experienced “drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum”. The Respondent conceded the alcohol consumption levels had been met by the veteran (despite the veteran as having been described as a "moderate" alcohol consumer in October 1979).
63. The Applicant invited the Tribunal to infer from the circumstances of the veteran's war service in the Southwest Pacific area (which circumstances have been discussed above) that the veteran experienced a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of anxiety disorder. The Applicant pointed to his post-service behaviour with his family. Therefore, the Tribunal was invited to infer as a fact that the clinical onset of his anxiety disorder coincided with the (unstated and non-specific) severe psychosocial stressors the veteran is said to have experienced whilst on operational service.
64. The Respondent pointed to an absence of a causal nexus between the war service of the veteran and his medical conditions (whether the posthumously-diagnosed anxiety disorder or the bowel cancer).
65. The major difficulty facing the Applicant is that there must be an identifiable objective link between the veteran's medical conditions and his war service. There are no specific events or occurrences which may have caused his anxiety disorder. The Tribunal is not satisfied with the quality or the weight of the medical evidence adduced by the Applicant as pointing towards the satisfaction of this causal link. Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481 at 490 directs this Tribunal (and other subordinate decision-makers) that there must be material pointing to a connection between the veteran’s disease and his or her war service. Section 119 does not displace section 120 when it comes to the requirement for evidence to point to a connection between the veteran’s disease and his or her war service. The appeal by the Applicant to the beneficial nature of the Act does not meet or overcome the deficiency in the evidence relating to whether or not an identifiable occurrence connected with the operational service of the veteran did in fact take place. Accordingly, the Tribunal is not satisfied on the balance of probabilities on the evidence before it that the veteran in fact suffered from an anxiety disorder (and if he did, that it was connected with his war service). This conclusion means also that the immediate cause of death of the veteran (bowel cancer) cannot be attributed to his war service in a causative sense.
The fourth Deledio step: findings of fact
66. As the Tribunal has determined that neither of the hypotheses fit within the SoP templates, it is not necessary for the Tribunal to proceed to engage in fact-finding.
Tribunal’s Conclusion
67. The Tribunal concludes that the veteran’s death was not caused by or contributed to by service-related anxiety disorder and malignant neoplasm of the colorectum.
Tribunal’s Decision
68. For these reasons, the Tribunal decides to affirm the decision under review.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Adam Ryan
Legal Research OfficerDate of Hearing 14 December 2005 & 21 June 2006
Date of Decision 7 February 2007
Counsel for the Applicant Mr PB O’Neill
Solicitor for the Applicant Files, Stibbe & Associates
Counsel for the Respondent Mr J Kelly, Departmental Advocate
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