GWEN FUGE and REPATRIATION COMMISSION
[2010] AATA 130
•19 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 130
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS’ APPEALS DIVISION ) No. 2008/3800
)
Re
GWEN FUGE
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr S H Toh, Member
Dr H Haikal-Mukhtar, Member
Date19 February 2010
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor the Tribunal decides that the veteran’s death was war-caused as defined in section 9 of the Veterans’ Entitlement Act 1986.
The Tribunal notes that because the veteran’s death occurred after 1 July 2007, and the claim for widow’s pension was received within six months of his death, pension can be back-dated to the day after the veteran’s death, that is, 21 December 2007.
.................[sgd].........................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that the veteran’s death from renal failure, carcinoma of the prostate, and hypertension was war-caused – alcohol consumption – renal hypertrophy – renal nephropathy - obstructive uropathy – consideration of Statement of Principles Concerning Hypertension – the Tribunal decides that the decision under review is set aside
LEGISLATION AND LEGISLATIVE INSTRUMENTS
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1), 120(3), 120A and 196
Statement of Principles – Instrument No 35 of 2003 Concerning Hypertension
AUTHORITIES
Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711
Fitzgerald v Penn (1954) 91 CLR 268
Fogarty v Repatriation Commission (2003) FCAFC 136 at 34; (2003) 37 AAR 363
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Repatriation Commission v Towns (2003) 38 AAR 77; [2003] FCA 1262
Hill v Repatriation Commission (2009) 177 FCR 434; [2009] FCAFC 91
Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280; (2009) 258 ALR 204; (2009) 110 ALD 481
Re Doolette and Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484
Bull v Repatriation Commission (2001) 188 ALR 756; (2001) 66 ALD 271; (2001) 34 AAR 326; [2001] FCA 1832
Hardman v Repatriation Commission (2004) 82 ALD 433; (2004) 40 AAR 486; [2004] FCA 1174
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (2002) 73 ALD 377; [2002] FCA 26
Youngnickel v Repatriation Commission [2004] FCA 1691
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1; (1992) 16 AAR 1
REASONS FOR DECISION
19 February 2010 Ms N Isenberg, Senior Member Dr S H Toh, Member
Dr H Haikal-Mukhtar, Member
1. The decision under review is the decision of the Repatriation Commission dated 16 April 2008, as affirmed by the Veterans’ Review Board (“the VRB”) on 25 July 2008, that refused the claim that Mr Fuge’s death was service‑related.
BACKGROUND
2. Mr Fuge served in the Australian Army Medical Corps between December 1941 and May 1946. For at least some of that time he served as a medic in New Guinea. His service was “operational service” as defined in the Veterans’ Entitlements Act 1986 (“the VE Act”).
3. Mrs Fuge contends that her late husband’s death on 20 December 2007 was causally connected to his operational service. She contends that one of the kinds of death that he suffered was death from renal failure. She contends that his hypertension, which appears to have been diagnosed in 1975, contributed materially to the development of the kidney failure. She contends that leading up to the diagnosis of his hypertension, Mr Fuge was consuming more than 300 grams of alcohol per week. She further contends that this constituted alcohol abuse and that that condition was also service-related because of the stressful nature of his service.
4. The causes of death, as listed on the death certificate, were:
Part I (a) renal failure days
(b) carcinoma prostate, years
Part II hypertension, 20 years
LEGISLATIVE BACKGROUND
5. Section 8 of the VE Act provides for when an injury or disease is taken to be war-caused:
War-caused death
(1)Subject to this section and section 9A, 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;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service;
…
6. Section 13(1) provides, in effect, that where the death of a veteran was war-caused, the Commonwealth is liable to pay a pension by way of compensation to a dependent, which includes a widow (s 11(1)(c)).
7. As the veteran had operational service, the determination of whether his death was war-caused is to be made by applying subss 120(1) and 120(3). Those subsections require the Tribunal to find that the veteran’s death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect the veteran’s death with his service.
8. The Repatriation Medical Authority (“RMA”) was established under s 196A. If the RMA is of the view that there is sound medical-scientific evidence that indicates that if a condition can be related to a veteran’s service, the RMA must determine a Statement of Principles (“SoP”) (section 196B). The SoP sets out the factors, one of which must as a minimum exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
EVIDENCE
9. Mrs Fuge gave evidence that she married her husband in 1958, and at that time he was drinking about four middies or schooners of an afternoon, and before he went to bed he was drinking about ‘four inches’ of scotch. Quite often he would get up through the night and have another glass of scotch. She estimated that he would consume two large 26 fluid‑ounce bottles of scotch through the week as well as three-four middies three times a week at the bowling club. He would also drink one or more glasses of wine with dinner. He maintained that kind of pattern until about six months before he passed away and he was too ill to drink.
10. He had previously tried to reduce the amount he drank when the family was around, but he would get depressed and he would ‘go looking for it again’.
11. This contrasted with what Mr Fuge had written in an alcohol questionnaire dated May 2006, in which Mr Fuge wrote that he commenced drinking alcohol in 1944, and that he would drink two-three beers a day, and that the amount of alcohol he consumed had not changed significantly over time. In a second alcohol questionnaire dated 14 September 2006, he wrote that he commenced drinking alcohol in 1941 and would drink an average of three middies a day. Although he wrote that there had been no significant change at the time he answered the questionnaire, he was consuming beer, wine and scotch on different occasions – wine with meals, scotch to assist sleeping. He wrote that he consumed two glasses of wine a night and three nips of scotch most nights. He wrote that his alcohol consumption was due to his service because he had been unsure about the future, was nervous about what was going to happen, was missing family and friends and it was a new situation.
12. An undated statement was also provided by Mr Fuge’s older sister, Elizabeth Phelps. Mrs Phelps wrote that her brother had been a carefree young man before his service but on return she was surprised that he had started drinking. She thought his (first) wife must have "put up with a lot as he always seemed to have too much to drink". Within a couple of years of marrying, Mr Fuge also started drinking whisky and he "was often found with the bottle beside him". Once he broke down and talked to her husband (who had also served in New Guinea) and said that drinking was the only way to block out the war. When she had stayed with the veteran and his wife, she would find him at two or three in the morning drinking.
13. A statement dated 18 March 2008 was provided by the veteran's daughter, Maree Oxford, who wrote that she became aware of her father's drinking habits in the early 1970s, when she was in her early teenage years. She observed him drinking three to four beers of an afternoon after work, some wine with his meals and then a large glass of scotch before he went to bed. In the late 1970s she became aware that he would also drink at least four nips of scotch through the night and continued to do so until his death.
14. From the tendered Writeway Report dated 12 September 2009, it appears the veteran spent about 14 months in New Guinea and Morotai Island during his service as a nursing orderly.
Medical Evidence
Dr Maher, Mr Fuge’s General Practitioner
15. In a medical Impairment Assessment form dated 26 October 2006, Dr Maher wrote that Mr Fuge had hypertensive nephropathy. Conversely, in his clinical notes of 11 December 2007 he described Mr Fuge’s impending renal failure as secondary to the prostate cancer.
16. In a medical report dated 26 October 2006 Dr Maher wrote that the clinical onset of Mr Fuge’s hypertension was in approximately 1983.
17. The T documents, however, contained a letter from a Dr Dawson dated 24 August 1983 (T4, pg 12) that referred to the veteran as having been mildly hypertensive for the previous eight years and that he had been on medication.
Dr Anderson, Occupational Physician
18. Dr Anderson provided a report dated 17 January 2009. He took the view that although hypertension was not a primary factor in the development of chronic renal failure, he thought that its existence for over 20 years would still have made it a contributing factor to Mr Fuge’s death. He observed that Mr Fuge’s creatinine levels were raised by mid‑2006, which was suggestive of chronic renal failure.
Associate Professor George, Renal Specialist
19. Associate Professor George provided a report dated 28 July 2009. He expressed the view that the clinical onset of Mr Fuge’s renal impairment was 15 August 2001 when Mr Fuge’s elevated serum urea levels were recorded. He wrote that his analysis of Mr Fuge’s case was:
“…that he first suffered from hypertension for a long period, that this hypertension significantly increased the risk that he would progress to end-stage renal failure as a direct complication of it, that this progression was in fact occurring in his case, and that consequences of his prostatic and related disease eventually accelerated that progression.”
20. In his evidence, he said he considered Mr Fuge’s hypertension, first diagnosed in 1975, was progressively damaging his kidneys. Associate Professor George further stated that the fact that the hypertension was controlled by medication did not necessarily prevent the progression of the histological damage in the kidneys. As damage to the kidneys developed, the hypertension got worse.. Had his blood pressure not been controlled he would have expected Mr Fuge’s renal failure to progress faster.
21. Associate Professor George thought that important contributing factors to the renal failure were hypertension, principally, and the consequences of hypertension, together with an overlay of the consequences of prostatic cancer. He came to that view particularly after reviewing the hospital notes from Mr Fuge’s final admission, that Mr Fuge had significant amounts of protein in his urine whereas, ordinarily, in obstructive prostatic cancer, causing obstructive uropathy (obstruction of the urinary tract), only a trace of protein would be expected. The hypertensive nephropathy was likely to be more significant than obstructive uropathy. He considered that it was highly unlikely that the elevated protein readings were due to prostatic carcinoma or obstruction of the urinary tract. He said there was no evidence the obstructive uropathy was caused by Mr Fuge’s earlier benign prostatic hypertrophy.
22. He thought there was a ‘considerable possibility’ that Mr Fuge’s death may have been delayed to a ‘considerable extent’ if he did not have pre-existing hypertension.
23. Although he noted that Mr Fuge had diabetes mellitus – which he described as ‘borderline’ – it was unlikely to have impacted on his kidney function.
24. Associate Professor George thought Professor Levi had been looking at Mr Fuge’s condition from a “purely oncological viewpoint”, and for that reason had considered that the prostatic cancer and resulting uropathic obstruction was the principal factor in the development of Mr Fuge’s terminal renal failure.
Professor Levi, Consultant Physician Specialising In Medical Oncology
25. Professor Levi provided two reports – dated 2 March and 4 September 2009.
26. In his report of 4 September 2009 he wrote that he considered that Mr Fuge’s pre-existing hypertension had a role in the development of his renal disease:
“Accordingly his likelihood of developing terminal renal failure was increased by the presence of hypertension as a contributing factor. Nevertheless the prostatic hypertrophy and obstruction associated with this was the principal factor in the development of the renal failure.”
He went on to say:
“Nevertheless it is reasonable to say that there is some possibility that Mr Fuge’s death may have been delayed to a small extent if in fact he did not have pre-existing hypertension.”
27. In the same report, he wrote that there were at least two, if not three, causative factors in the development of Mr Fuge’s renal failure: hypertension, ureteric obstruction secondary to prostatic hypertrophy and cancer, and finally diabetes mellitus.
28. In his evidence he confirmed that he could not exclude hypertension as a factor in Mr Fuge’s renal failure.
29. In interpreting the death certificate Professor Levi said that, in general terms, the most immediate cause of death is number one and the principal underlying causes are usually just immediately below that, and any other factors that are considered pertinent beyond that. He therefore categorised the reference to Mr Fuge’s ‘carcinoma prostate (years)’ as indicative of that being a major component of his cause of death. Hypertension was considered to be part of the cause of death but less important or lesser a component of that than the previous ones.
30. Professor Levi observed that Dr Maher, Mr Fuge’s general practitioner, had found some disturbance of Mr Fuge’s renal function in mid 2005, and related it to potential hypertensive nephropathy, that is, raising the question as to whether or not the hypertension was causing disturbance in renal function. From the available material, Professor Levi thought that was ‘very possible’. He observed though that at the same time Mr Fuge was already developing other symptoms of haematuria and difficulties with urinary flow, both of which are indicative of almost certain prostatic gland enlargement and likely partial obstruction.
31. He also observed that in May 2006 prostate cancer was diagnosed and that by November 2006 Mr Fuge’s kidneys were functioning at about 30 per cent effectiveness. By November 2007, he had very poor function of his kidneys.
32. He was of the view that the damage to Mr Fuge’s prostate resulted in obstruction and secondary damage to his kidneys, and was the reason for progressive deterioration of his kidney function during 2007. However, he observed that Mr Fuge had already had hypertension for up to 30 years, and it was quite possible that in those preceding years, gradually there was some effect on his kidneys, and gradually he developed some real damage to his kidneys as a result of the hypertension. Having said that, in his view, if Mr Fuge had not developed prostate problems there is no reason to believe that, ultimately, he was going to go on to renal failure as a result of his hypertension.
Professor Mattick, Professor of Drug and Alcohol Studies, National Drug and Alcohol Research Centre
33. A report was provided by Professor Mattick dated 11 September 2009. He reported that Mrs Fuge told him that her husband kept largely to himself and would not talk about his army service at all. Mrs Phelps told him that Mr Fuge had told her that he drank to help him forget his wartime experiences - "the boys coming in with legs shot off and that". Mrs Phelps confirmed that her brother did not drink alcohol before his service, and that she believed that he started drinking six or seven months after his return to Australia. He drank to the extent that there were family arguments over trivial matters because he was argumentative. He somewhat reduced his drinking when he first married but quickly resumed his consumption pattern. When he returned to his parents after the death of his first wife he "eased off” and only drank a couple of nights a week for about five years. His parents had strict rules about drinking in the house.
34. Mrs Fuge told Professor Mattick that when she met her husband in 1957, her husband would consume the equivalent of about four stubbies of beer over the evening. Very soon after they married in 1958 he commenced drinking scotch occasionally, as well as drinking beer daily in the afternoon sufficient to "make him wobbly on his feet". He drank more on weekends. By 1966 he was drinking scotch more regularly: three inches of alcohol in two glasses before bed, and he was drinking a glass of wine with dinner. Five nights out of seven he would also have a large glass of scotch during the night. She estimated he would consume two large 26 fluid‑ounce bottles through the week as well as beer. By the early 1970s he came home later after drinking at the bowling club, and then would have a glass of wine with dinner, two large three‑inch high glasses of scotch before bed and one or more glasses of scotch through the night. By the mid 1970s he was drinking one or more glasses of wine with dinner, still drinking scotch before bed and through the night, but only drank beer twice a week socially - having two middies with friends at the bowling club.
35. Professor Mattick considered that Mr Fuge met the diagnostic criteria for alcohol abuse by 1946 or early 1947, approximately six months after he was discharged from the army. While the reasons for the development of alcohol abuse were not fully clear, Professor Mattick considered that there was a reasonable hypothesis that the events during Mr Fuge’s service may have caused his drinking.
CONSIDERATION
36. The Tribunal’s first task in the present matter is to determine, the “kind of death” suffered by the veteran: Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711. Identification of the kind of death is determined on the balance of probabilities in accordance with section 120(4) of the VE Act (see Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136 at 34; Benjamin v Repatriation Commission (2001) 34 AAR 270; [2001] FCA 1879; (2001) 70 ALD 622 at 53-54).
37. As the Federal Court said in Repatriation Commission v Towns (2003) 38 AAR 77; [2003] FCA 1262, the expression ‘kind of death’ is a wide-reaching one, and not limited to the prime cause of death in a medical sense. More recently, in Hill v Repatriation Commission (2009) 177 FCR 434; [2009] FCAFC 91, and Collins v Repatriation Commission (2009) 177 FCR 280; (2009) 258 ALR 204; (2009) 110 ALD 481; [2009] FCAFC 90, the Federal Court made clear that ‘kind of death’ refers to the medical cause of death, including the underlying medical causes of death.
38. Emmett J in Collins v Repatriation Commission (supra) said at para [31] that:
"The question of the kind of death met by a veteran is a question of medical causation of the death, although that might include contributing or underlying causes in the sense to which I have already referred".
39. The death certificate recorded as follows:
(I)(a) Renal failure days
(b) Carcinoma prostate years
(II) Hypertension 20 years
Associate Professor George explained that the interpretation of the death certificate is that the immediate or primary cause of Mr Fuge’s death was renal failure, due to prostate cancer which was the underlying or contributing cause of death. Associate Professor George and Professor Levi considered hypertension to have been recorded as a significant condition which had also contributed to the death, but was not part of the morbid train of events leading to the death.
40. A death certificate, however, is not definitive and can be contradicted by other more cogent evidence: Hill at [61].
41. Professor Levi was of the view that, had Mr Fuge not developed prostate problems, there was no reason to believe that Mr Fuge would experience renal failure as a result of his hypertension. Against this view was the evidence of Drs George, Anderson and Mattick.
42. Dr George thought that the most important contributing factor to the renal failure was hypertension, and that hypertensive nephropathy was likely to be more significant than obstructive uropathy due to prostate cancer. The Tribunal noted that he had come to that view observing that Mr Fuge had significant amounts of protein in his urine whereas, ordinarily, in obstructive prostatic cancer, only a trace of protein would be expected. Dr Maher, Mr Fuge’s GP, had found some disturbance of Mr Fuge’s renal function in mid 2005 which he related to potential hypertensive nephropathy. Dr Anderson took the view that hypertension for over 20 years would have been a contributing factor to Mr Fuge’s death. Dr George also expressed the view that Mr Fuge’s longstanding hypertension significantly increased the risk that he would progress to end-stage renal failure as a direct complication, and that Mr Fuge’s hypertension progressively damaged his kidneys. Even Professor Levi agreed that was possible.
43. Death may be contributed to by an injury or disease if that condition hastened the death: Doolettev Repatriation Commission (1990) 21 ALD 489. Dr George thought there was a ‘considerable possibility’ that Mr Fuge’s death may have been delayed to a ‘considerable extent’ if he did not have pre-existing hypertension. Professor Levi also considered that Mr Fuge’s death may have been delayed to a small extent if he had not had hypertension.
44. The Tribunal finds that the preponderance of the evidence was that Mr Fuge’s hypertension was an underlying condition, which played a real role in the pathological changes leading to his death, and that hypertension hastened his death: Collins [2009] FCAFC 90 at [84]. Accordingly, the Tribunal finds that hypertension was one of Mr Fuge’s ‘kinds of death’.
45. Where an SoP exists for a condition – as there does for hypertension – the Tribunal must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 49 ALD 193; (1998) 27 AAR 144; (1998) 83 FCR 82 at 97 in the following way:
“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).
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.”
Steps 1 and 2: is there a hypothesis and is there a sop?
46. The hypothesis is that Mr Fuge’s war-caused alcohol consumption contributed to his hypertension which, in turn, contributed to his death.
47. The current SoP in relation to hypertension (which was also the SoP in force at the date the veteran’s claim was first decided) is Instrument 35 of 2003, as amended by Instrument 3 of 2004 and Instrument 11 of 2008. Factor 5(b) provides:
“consuming an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension.
The definition of “alcohol” is provided in s 8:
“alcohol” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink.”
Step 3: does the hypothesis conform to the template in the sop?
48. This step entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. This step involves considering all of the material before the Tribunal, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484.
49. The Tribunal must consider all of the material before it, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 188 ALR 756; (2001) 66 ALD 271; (2001) 34 AAR 326; [2001] FCA 1832, Hardman v Repatriation Commission (2004) 82 ALD 433; (2004) 40 AAR 486; [2004] FCA 1174, and Elliott v Repatriation Commission (2002) 73 ALD 377; [2002] FCA 26. In the last of these cases, Stone J likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
50. A ‘reasonable hypothesis’ involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364; (1997) 149 ALR 721; (1997) 47 ALD 481; (1997) 26 AAR 298.
51. The question for the Tribunal at this stage is therefore: is there material pointing to each element of the factor? Each element of the hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material.
52. Firstly, there is material pointing to the clinical onset of hypertension from at least 1983, and more likely about 1975: per Drs Maher and Dawson.
53. There is material pointing to the consumption at that time of a weekly average of at least 300 grams of alcohol, that is 30 standard drinks per week: per Mrs Fuge, Mrs Oxford, Mr Fuge’s second alcohol questionnaire, Mrs Phelps’ statement. Further, there is material before pointing to Mr Fuge having that pattern of consumption of alcohol in the six months before clinical onset: Mrs Fuge’s evidence, Mr Fuge’s second alcohol questionnaire, Mrs Oxford’s statement.
54. Therefore, the Tribunal has come to the view, without making a finding of fact, that every essential element of the hypothesis is pointed to by the material before it. A reasonable hypothesis therefore is raised.
Step 4: can the tribunal be satisfied beyond reasonable doubt that the veteran’s hypertension was not war-caused?
55. This step involves making findings of fact from the material before the Tribunal. Section 120(1) of the VE Act provides that the claim will succeed unless the Tribunal is satisfied, beyond reasonable doubt, that there are no sufficient grounds for determining that the veteran’s hypertension was war-caused. If the Tribunal is not so satisfied, Mrs Fuge’s claim must succeed: s 120(1) of the VE Act. In examining this question, the Tribunal notes that there is no onus of proof: section 120(6) of the VE Act and Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1; (1992) 16 AAR 1.
56. As to clinical onset of Mr Fuge’s hypertension, there was no evidence other than that he suffered the condition by the mid 1970s or so.
57. Professor Mattick considered that Mr Fuge met the diagnostic criteria for alcohol abuse soon after discharge. For the purposes of the factor, however, it is not necessary that the veteran suffered alcohol dependence or alcohol abuse, only that he had consumed the requisite quantity of alcohol, and that the consumption of alcohol was connected with the veteran’s service.
58. The Tribunal accepts from Mrs Phelps’ account to Professor Mattick that Mr Fuge did not drink alcohol before his service, but commenced drinking soon after his return to Australia.
59. On the basis of the Writeway Report, the Tribunal has no hesitation in accepting that there he observed a significant number of war casualties, and that this would have been most distressing. He would not talk about his wartime experiences at all, although he opened up to his brother-in-law – also a New Guinea veteran - on one occasion.
60. The evidence was that Mr Fuge came from a conservative family and commenced drinking during or after his service. There was some evidence that reasonably soon after the war he drank to excess. The veteran’s explanation as to the connection between his service and his alcohol consumption was consistent and, in the circumstances of the nature of his service, likely to be conservative. He may have reduced his consumption somewhat as his family circumstances changed but he never gave up completely.
61. The evidence as to his alcohol consumption during the relevant period was that by the early 1970s he would drink beer at the bowling club, have a glass of wine with dinner, two large scotches before bed and at least one more through the night. By the mid 1970s he continued the wine and scotch consumption but only drank about four middies of beer a week. The consumption of even only the two bottles of scotch per week, as Mrs Fuge estimated, would amount to well in excess of 30 standard drinks per week. The veteran’s own account of his consumption (as at 2006) in his second alcohol questionnaire was more conservative, but at two glasses of wine and three nips of scotch per night, his consumption still exceeds 30 standard drinks per week. (It is noted that Mrs Fuge’s evidence was that by that time the veteran had reduced his alcohol consumption.)
62. The Tribunal therefore finds that no facts which are inconsistent with the hypothesis have been proved beyond reasonable doubt.
CONCLUSION
63. For the above reasons, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s condition was war-caused. The Tribunal must accordingly determine, by virtue of s 120(1) of the VE Act, that Mr Fuge’s condition was war-caused.
DECISION
64. For the above reasons, the Tribunal sets aside the decision under review, and in substitution therefor decides that the veteran’s death was war-caused as defined in s 9 of the VE Act.
65. Because the veteran’s death occurred after 1 July 2007, and the claim for widow’s pension was received within six months of his death, pension can be back-dated to the day after the veteran’s death, that is, 21 December 2007: per subs 20(2A).
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member, Dr S H Toh, Member, and Dr H Haikal-Mukhtar, Member.
Signed: .................[sgd].......................................................................
AssociateDate of Hearing 15 December 2009
Date of Decision 19 February 2010
Advocate for the Applicant Mr T Latimore, Legal Aid Commission
Counsel for the Respondent Mr G Purcell
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