Hamono and Repatriation Commission - [2001] AATA 269

DECISION AND REASONS FOR DECISION [2001] AATA 269

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/402

VETERANS APPEALS DIVISION        )
           Re      EVELINE HAMONO
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Mr A. Argent, Member Dr C. Re, Member

Date3 April 2001
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED that the death of Thomas Desmond Hamono was war-caused.
  ........Sgd. Mr J. Handley.......
  Senior Member
CATCHWORDS
Veteran's Entitlements - Respondent conceded connection between service and smoking and pack years – whether deceased suffered 'chronic bronchitis'; whether it contributed to death – whether SoP satisfied – Decision set aside.
Bushell v Repatriation Commission 1992 109 ALR 30
Repatriation Commission v Webb 1987 76 ALR 131
Repatriation Commission v Deledio 1998 49 ALD 193

REASONS FOR DECISION

3 April 2001 Mr J. Handley, Senior Member Mr A. Argent, Member Dr C. Re, Member

On 21 June 1999 the respondent decided that the death of Thomas Desmond Hamono was not war-caused. On 3 March 2000 the Veterans Review Board ("VRB") affirmed that decision.
Application is made in these proceedings by Mrs Hamono to challenge these decisions. She does so as the widow of the late Mr Hamono who died on 11 September 1983. The death certificate records the cause of death as-
"atypical pneumonia (agent unknown) – 10 days
polymyositis – 2 months".
The late Mr Hamono was born on 7 December 1921. He served in the Australian Army between 5 November 1941 and 5 December 1945. Part of his service was in Northern Australia and in Bougainville where he was engaged as a driver of vehicles, particularly ambulances. Mr Hamono commenced smoking during service and thereafter became addicted to cigarettes. He smoked 20 cigarettes per day until 1983 when he was admitted to hospital.
At the commencement of the hearing Ms McCulloch who appeared on behalf of the respondent conceded that an association existed between service and the commencement of the smoking habit. She also conceded that the applicable Statement of Principle was Instrument No. 73 of 1997, entitled "Chronic Airflow Limitation". The relevant factor was 5(b), namely-
"smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or ……".
Ms McCulloch also conceded that the relevant factors under this instrument were satisfied namely the extent of consumption of cigarettes. The principle issue in dispute was whether the deceased suffered chronic bronchitis (described in the respondent's Statement of Facts and Contentions as 'chronic obstructive airways disease').
Eveline Hamono
Mrs Hamono is the widow of the late Desmond Thomas Hamono. She and Mr Hamono married on 25 March 1948. Mrs Hamono told us that she met the deceased approximately 2 weeks prior to him leaving for Darwin. At that time he did not smoke cigarettes. She also told us that she has subsequently had discussions with her mother-in-law who confirmed that Mr Hamono did not smoke prior to service.
Mrs Hamono relied on a statement dated 3 April 2000, which was received into evidence. In that statement she referred to his smoking habit and at page 2 she recorded-
"he did develop a chronic cough which I attributed to his smoking. He had the cough for at least 5 years prior to his death".

Mrs Hamono told us that her husband did have a cough throughout most of the marriage but in the early years she said the cough was more "abdominal" in nature. For about five years prior to his demise the type of cough changed and was described a 'chest' cough. She said he would cough "day in and day out". He would wake in the morning with a cough, which was productive. She said that she would separately wash his handkerchiefs because "they were full of mucus". During this time he continued to smoke cigarettes. Mrs Hamono said her husband did not stop smoking until 1983 when he was first admitted to hospital where smoking was then prohibited.
Doctor Byron Collins
Doctor Collins is a forensic pathologist in private practice. He provided a report dated 18 September 2000, which was received into evidence. He was also referred to reports which were lodged by the respondent in the week prior to the hearing, both dated in 1948. In a report dated 27 October 1948 a Doctor has recorded that the deceased then was smoking 3 ounces of tobacco per week and the words "only slight cough at times" appear. In a report dated 22 November 1948 a Doctor Curtis (to whom the applicant was apparently referred because of persisting headaches) recorded that the deceased "smokes in moderation".
Doctor Collins said the significance of these comments is that it provides a history of smoking from at least 1948. Having regard to the evidence of Mrs Hamono with respect to coughing, he said that there was "respiratory tract involvement".
Doctor Collins observed the slides of tissue samples prepared by the pathologist who performed an autopsy on the deceased. It was the opinion of Doctor Collins that the deceased suffered from chronic bronchitis/emphysema, despite these conditions not being recorded in the death certificate or in the post mortem notes. Doctor Collins said that there was clinical evidence of the presence of these diseases observed microscopically. Having regard to the controversy within this application as to the cause of death, the report of Doctor Collins is relevantly (omitting formal parts) recorded as follows-
"The following are my initial comments on a number of aspects in this matter.
1. In view of the unfortunate absence of the hospital records relating to the late Mr. Hamono's admissions to both the Country and Prince Henry's Hospitals during his terminal illness, it is difficult to carry out an adequate assessment of the various significant disease processes which were present at that time.
2. The muscle biopsies performed during life and at the autopsy show evidence of well-established Polymyositis and this is probably the basic underlying condition, which ultimately played a major role in the late veteran's' demise.
Although the exact aetiology of Polymyositis is poorly understood, it is generally accepted to be due to an abnormal auto-immune reaction which, as a clinical entity, may involve a number of organ systems apart from the skeletal muscles. In this regard, it is well-established that pulmonary involvement can occur, which manifests itself as diffuse fibrosing alveolitis/pulmonary fibrosis.
3. I agree with the findings in the lungs as described by Dr. Cavanagh who performed the post-mortem examination. Multiple sections of the lungs show a constellation of pathological abnormalities, the predominant features being:
·pulmonary fibrosis,
·diffuse fibrosing alveolitis
·diffuse alveolar damage/infection/adult respiratory distress syndrome.
The underlying lung anatomy is difficult to ascertain due to the advanced state of the abovementioned processes however, in at least one large segment of lung tissue, there is widespread and moderately severe emphysematous change.
In some of the other lung sections the bronchi show patchy squamous metaplasia consistent with chronic bronchitis.
4. In essence therefore, there is chronic lung disease which could have, at least in part, predisposed the late Mr. Hamono to development of the acute atypical pneumonic process which no doubt played a role, in addition to that played by lung complications of polymyositis, in the death.
It could therefore be argued, in my opinion on sound pathological grounds, that the presence of chronic obstructive airways disease hastened the death of the late veteran. If it is accepted that his smoking habit were as a consequence of his war service, then such service can reasonably be linked to the death through the recognised causal relationship between cigarette smoking and development of chronic bronchitis/emphysema".
With respect to paragraph 1 above, Doctor Collins said that there were 37 slides prepared by the pathologist. He observed 5 slides concerning the deceased's lungs.
With respect to the condition of polymyositis referred to in paragraph 2 above, Doctor Collins said this was a condition of inflammation of muscles caused by a malfunction of the body's auto-immune system. He said in the present case the deceased's muscles and major organs were affected, particularly his lungs. He said the deceased's major complaint would have been pulmonary fibrosis and fibrosing alveolitis.
With respect to paragraph 3 of his report Doctor Collins said that in all of the lung sections he observed (that is, the five slides) he noticed emphysematous changes. He said this amounted to a breakdown of the alveola walls. This, he described, as the tissues of the lung having a honeycomb type appearance. Additionally he said the presence in the autopsy notes of "patchy squamous metaplasia" was damage to the airways leading into the lungs which, together with emphysema, was consistent with cigarette smoking.
With respect to paragraph 4 of his report Doctor Collins said that the deceased apparently did not respond to treatment having regard to the "anatomy of his lungs". He said the deceased suffered from an acute infection which would have caused difficulty with treatment.
Doctor Collins was taken to the autopsy report found at page 17 of the T-documents. Under the sub-heading of 'Respiratory System' the pathologist (Doctor Cavanagh) in part recorded-
"The cut surface also reflected this firmness and towards the pleural surface particularly in the upper lobes and particularly on the right side occasional small cysts were seen in the sub-plural region: the cysts were up to 5 mm in diameter".
Doctor Collins said the above findings would have been observed with the naked eye as opposed to under a microscope. He said these findings were consistent with long term changes in the deceased's lung which were consistent with either pulmonary fibrosis or with emphysema.
At page 19 of the T-documents is the histology as recorded by Doctor Cavanagh. Under the sub heading of "Lungs" the following appears-
"Multiple sections have been examined and all show abnormalities. The abnormalities vary considerably. Some areas show marked fibrous thickening of alveolar walls and small areas of total parenchymal fibrosis with some pulmonary macrophages; occasional small cystic spaces lined by hyperplastic alveolar lining cells are seen. These are the features of fibrosing alveolitis".
Doctor Collins said Doctor Cavanagh would have observed the same slides as he did when reaching the above conclusions. Despite the opinion expressed by Doctor Cavanagh, Doctor Collins said these findings were consistent also with emphysema.
Doctor Collins said that he had observed a report prepared by Professor Cade which was sought by the respondent. Doctor Collins said he had little quarrel with that report. Doctor Collins had also observed a report prepared by Doctor Lynch, a Senior Pathologist with the Victorian Institute of Forensic Medicine. In his report (page 3, paragraph 4) Doctor Lynch recorded – "the typical autopsy findings associated with chronic bronchitis/emphysema include an increase in the mucus producing cells surrounding the airways (mucus gland hyperplasia) and destruction of alveola walls (emphysema)". He concluded (having observed the autopsy report & the slides) that there was "no significant increase in bronchial mucus glands". Doctor Collins said that in his opinion, for emphysema to exist, there did not need to be all of the conditions of squamous metaplasia, bronchial mucus glands and destruction of alveola walls.
It was his opinion that the deceased died from an acute infection contributed to by chronic bronchitis and/or emphysema. Whilst he noted that Doctor Lynch said that chronic bronchitis would have made no more than a "trifling" contribution to death, Doctor Collins noted that Doctor Lynch at least conceded that there was the presence of bronchitis and there was a contribution by it to death. Doctor Collins thought that the presence of cysts as referred to at pages 17 and 19 of the autopsy reports were of some significance yet he noted that they were not referred to by Professor Cade.
In cross-examination Doctor Collins acknowledged that the deceased did suffer from pulmonary fibrosis which was advanced and which has "honeycomb" cells as a clinical feature.
Doctor Collins was asked to comment on some extracts from a text entitled "Occupational Lung Disorders" (3rd edition by Parkes). The pages shown to Doctor Collins reproduced photographs of lung sections. With respect to the photograph of a lung shown as figure 15.13 found at page 521 of the above extract, Doctor Collins said that the cysts which were observed could be present either because of emphysema or because of pulmonary fibrosis.
When questioned as to the absence of any reference by him in his report to the bronchial mucus glands, Doctor Collins said that he "didn't pay a great deal of attention" to them, however he noted from the report of Doctor Lynch that the glands were present but were not of significance. He said at the time he prepared his report he had not been given a copy of the report of Professor Cade or Doctor Lynch and did not therefore refer to these reports.
Doctor Collins in conclusion, remained of the opinion that there was good clinical and microscopic evidence of the presence of bronchitis.
Doctor Collins said that the definition of "chronic bronchitis" as appears within the Statement of Principle was satisfied in the present case. He also said that despite the deceased having ceased smoking approximately three months prior to his demise that the damage to his lungs by cigarette smoking would have remained present at his death and the lungs would not have repaired.
John Cade
Professor Cade is a medical practitioner and the Director of Intensive Care at the Royal Melbourne Hospital. Professor Cade provided a report dated 29 January 2001, which was received into evidence.
In that report Professor Cade said that the "immediate cause of death was fulminating, untreatable respiratory failure". In his report – and in evidence – he said that the diagnosis of atypical pneumonia (as was also recorded on the death certificate as a cause of death) was not ever confirmed during the deceased's treatment in hospital. He reported that a more preferable cause of death should have been certified as "respiratory failure due to pulmonary fibrosis". He also recorded that the "underlying cause of death was correctly recorded as polymysositis" which he described as a "serious and often fatal condition" which he also noted had been diagnosed by Prince Henry's Hospital during a prior admission.
In evidence Professor Cade said that polymysositis "is a severe generalised disorder of muscle, an inflammatory condition which is commonly fatal and has an association with severe pulmonary involvement".
In his report and in evidence Professor Cade said there was no evidence of chronic bronchitis and/or emphysema. He said the pathologist who performed the autopsy at Prince Henry's Hospital did not detect the presence of chronic bronchitis or emphysema. It followed therefore – according to Professor Cade – that there was no contribution to death by chronic bronchitis or emphysema.
Professor Cade was acquainted with the evidence of Doctor Collins who said he observed the presence of cysts from the slides prepared at the autopsy. Professor Cade said that there was no indication from the pathologist's report at autopsy that cysts were present and in his experience the term "cyst" is not used by pathologists when a diagnosis of emphysema is made. He said pathologists use the term "bullae". He said "cysts" – if present – would be more characteristic of the presence of pulmonary fibrosis being a condition, which the deceased was known to have had.
Professor Cade said that the only basis that he would be prepared to find that chronic bronchitis and/or emphysema had any contribution to death – even assuming that both those conditions existed – would be
i) the pathologist who conducted the autopsy overlooked the presence of these conditions and
ii) the conditions were quantitatively significant. He said this would be difficult to establish because there was evidence of lung function tests in the hospital indicating a restriction, which was more indicative of pulmonary fibrosis rather than an obstruction, which would be indicative of chronic bronchitis and/or emphysema.
It was the opinion of Professor Cade that the deceased suffered from pulmonary fibrosis and his death was associated with that condition.
In cross-examination Professor Cade re-affirmed his earlier evidence that he would only support a connection between death by chronic bronchitis and/or emphysema if those conditions were found to exist and then to have been significantly present. He said the use by him of the expression "quantitatively significant" in his report together with the expression "rather than just a subtle histological finding", were intended to indicate that the conditions would have to be present by this degree for him to support the hypothesis.
With respect to the finding by Doctor Collins that the lung surface mounted on the slides was "firm", Professor Cade said that this was inconsistent with a diagnosis of emphysema. He said that a lung, which has emphysema "is like a floppy bag". He said that "firmness" is indicative of pulmonary fibrosis and emphysema would not cause the lung to be firm. He said the presence of bullae ("air containing spaces") would cause a lung to be "floppy".
Professor Cade said he would not debate the merits of the findings made by Doctor Cavanagh, and Doctor Collins because he was not a pathologist. Whilst acknowledging that Doctor Collins said there was "moderately severe emphysematous changes" seen in one of the slides Professional Cade said it amounted to no more than an interpretation of the slides. He acknowledged that there may have been the presence of "squamous metaplasia" which he acknowledged was consistent with chronic bronchitis but he said that squamous metaplasia could also be consistent "with a number of other things".
With respect however to the limited hospital records available which showed "mild restrictive changes and decreased diffusing capacity" arising out of a pulmonary function test undertaken by the deceased shortly prior to his death, Professor Cade said this was at variance with a finding of chronic bronchitis or emphysema which would have produced an obstructive change. He said the findings of the pulmonary function test showed restriction only. He said if lungs are restricted they are "shrunk and stiff" which would be typical of pulmonary fibrosis whereas "obstruction" would be "typical of asthma or chronic bronchitis or emphysema" because "air can't get in and out fast enough".
In answer to questions from the Tribunal, Professor Cade acknowledged that it was possible that the deceased could have had chronic bronchitis and could have also had pulmonary fibrosis and that one of these conditions could have over ridden or overwhelmed the other. He said it would have been "hard to disentangle all the elements that might originally have been there". He added that pulmonary fibrosis could have taken over from chronic bronchitis as evidenced by what he understood to be the deceased suffering from a dry cough. He said this is because a dry cough is associated with pulmonary fibrosis whereas a productive cough is associated with chronic bronchitis.
Professor Cade said in answer to further questions from us that chronic bronchitis is a separate condition evidenced by the bronchial walls having been damaged and producing excess mucous. He said if death had been precipitated by chronic bronchitis it would have been by predisposition to an acute chest infection.

In answer to a question from Ms McCulloch, Professor Cade said that if one condition had taken over from the other and the condition had caused a process within the deceased's lungs which had "obliterated" the previous condition, it must be regarded as being dominant and be the cause of death. He said a condition, which had been obliterated, could not have contributed significantly to death.
Mathew Lynch
Doctor Lynch is a forensic pathologist employed by the Monash University Department of Forensic Medicine at the Victorian Institute of Forensic Medicine. He provided a report at the request of the respondent dated 25 January 2001 which was received into evidence.
Doctor Lynch said that chronic bronchitis and emphysema most commonly occurs as a result of excessive tobacco consumption. In his experience, persons often have symptoms of both conditions and they are difficult to distinguish. In his experience also a characteristic of chronic bronchitis is the increased number of mucus producing cells in the lung. He observed the slides (as did Doctor Collins) prepared at the autopsy but did not observe any significant increase in the number of mucus producing cells. He also said he did not observe any reference to chronic bronchitis or airways disease or any productive cough in the hospital records, although he did notice a reference to the deceased having suffered from a dry cough.
Doctor Lynch was aware of a report previously completed by Doctor Collins who concluded – having observed the slides – that there was the presence of "patchy squamous metaplasia consistent with chronic bronchitis". Doctor Lynch said that "squamous metaplasia" is a condition affecting the lung surface. He said that would occur as a result of any insult to the lung but he would have expected that to have occurred because of the deceased's "mixed connective tissue disorder". Doctor Lynch was also unimpressed by the description of a lung function test which was undertaken by the deceased shortly prior to his demise which recorded airways restriction. He said this was indicative of chronic scarring by pulmonary fibrosis. He said that if chronic bronchitis and/or emphysema had existed there would have been an obstruction to the airways. He reinforced this view by his observation of the slides, which in his view showed minimal emphysematous changes. He said that had there been emphysematous change there would have been enlarged spaces in the lung walls reducing the capacity of the lungs to obtain oxygen thereby giving rise to the term "obstruction".
In the context of the definition of "emphysema" as appears in Instrument No. 73 of 1997, Doctor Lynch said there was no "diffuse" respiratory tract disorder because he observed focal changes only.
With respect to the certified cause of death as appears in the death certificate Doctor Lynch said that he would not "quibble" with the reference to "atypical pneumonia" but he would not have included "chronic bronchitis" or "emphysema" or "chronic obstructive airways disease" in the death certificate because in his opinion there was no medical records to support the presence or existence of these conditions and there was no clinical diagnosis of these conditions in the deceased's lifetime. Additionally he said the post mortem confirmed the presence of fibrosis without evidence of infection and the changes which could be observed in the slides did not indicate the presence of bronchitis or emphysematous changes consistent with the definition of both these conditions as found within the applicable Statement of Principle.
In cross-examination Doctor Lynch was referred to the second last paragraph of his report where he concluded "I would not consider chronic bronchitis to have made more than a trifling contribution to Mr Hamono's death". Mr Seccull suggested to Doctor Lynch that this was a concession that there was at least some presence of chronic bronchitis. Doctor Lynch said that his report was poorly constructed and he did not intend to convey that there was the presence of chronic bronchitis at all. He said he intended to record that he found no evidence at all of the presence of bronchitis.
Doctor Lynch said that he was influenced in large part by the absence of any reference in the hospital notes to a history of chronic productive cough. He said symptoms of this type are the "sine que non" of a diagnosis of chronic bronchitis. He said that if he treated Mr Hamono and had received a history of many years of ongoing productive cough, "day in and day out", producing a 'sickening' sputum, he would have been satisfied to have made a diagnosis of chronic bronchitis. He said however there was no history of these symptoms in the hospital records. Whilst he acknowledged that the deceased would have had a respiratory infection producing the sputum he said that the undisputed presence of pulmonary fibrosis would have created a vulnerability to an infection which could have also produced sputum. He said that the production therefore of sputum was not of itself a positive factor in the diagnosis of chronic bronchitis in the deceased.
Doctor Lynch was taken to his report where he referred to his observation of the slides prepared at autopsy. He said there were 37 slides produced by the pathologists but five only related to the deceased's lungs. It followed therefore that he would have observed the same slides as Doctor Collins did. Doctor Lynch said that he had assumed that the slides were samples of both lungs but he was unable to say which slide contained a sample from which lung although he said in practice a slide is produced from each of the five lung lobes. He said in his observation two slides only indicated the presence of emphysema but the tissue sample (he said being the size of a 20-cent coin) showed emphysematous changes at 10% of the slide only. Further to this he said the slides were indicative of a focal – as opposed to a diffuse – presence of emphysema.
Byron Collins
Doctor Collins was recalled to give evidence having regard to the evidence given earlier by Professor Cade.
Doctor Collins acknowledged the use by Professor Cade of the term "bullae". Doctor Collins said that it was his preference "and that of others" to restrict use of the word "bullae" to air sac's that exist on a lung surface only. He said there is no common usage amongst pathologists of the meaning to be given to the word "bullae" and to highlight this he said that where some pathologists use the word "bullae", others use the word "bleb".
Doctor Collins was acquainted with the reports of Doctor Lynch and Professor Cade and disagreed with the opinions of firm tissue being inconsistent with emphysema. He disagreed with the analysis offered by Professor Cade that a lung which suffered from emphysema had the appearance of a "floppy bag". He said lungs which suffer from emphysema are soft and crackle but they do not collapse and they are "firm".
With respect to the conclusions reached from the results of a lung function test completed by the deceased shortly prior to his death, Doctor Collins said that the degree of restriction as reported was not necessarily indicative of pulmonary fibrosis. He queried the conclusions reached by the Doctors who performed the test and noted that all that was available was a report of findings as opposed to an analysis of the clinical data associated with the actual test.
Doctor Collins said that there was no doubt that the deceased did suffer from chronic bronchitis and/or emphysema and that these conditions were capable of interpretation from the slides. He said that emphysema was present in a "significant degree" on one of the slides and whilst changes were present in all five slides it was difficult for him to interpret the extent of scarring.
With respect to the contribution to death by chronic bronchitis Doctor Collins said that the deceased must have suffered from an acute chest infection linking bronchitis with death. He noted that the death certificate recorded a cause of death as "atypical pneumonia" which he said was the infective link with death by chronic bronchitis. He also noted that the condition "atypical pneumonia", whilst it appeared in the death certificate, did not feature in the report of the pathologist who conducted the post mortem.
With respect to the extent of lung scarring as could have been determined by the slides Doctor Collins noted that it would have a connection with both pulmonary fibrosis and with smoking. He said that where the scarring was diffuse – and he said there was evidence of diffuse scarring – that it would be consistent with the deceased's smoking.
Conclusion & Reasons For Decision
The hypothesis put forward on behalf of Mrs Hamono was that her husband took up cigarette smoking during his Army service, which led to chronic bronchitis, which in turn contributed to his death by the presence of an infective process (described in the death certificate as "atypical pneumonia").
The respondent conceded at the outset that a nexus existed between the service of the deceased and taking up cigarette smoking. The respondent also conceded that the requisite pack years pursuant to the Statement of Principle had been satisfied.
The hypothesis advanced by the widow was that her husband suffered from chronic bronchitis (which had an association with cigarette smoking) and which was ultimately responsible for his demise. The respondent relied on the certified cause of death, which did not refer to chronic bronchitis and relied also on the evidence of Doctors Cade and Lynch.
Mrs Hamono gave stark and graphic evidence of her husband having had a productive cough for many years prior to his demise. She told us of him coughing "day in and day out" and at all times producing sputum. She spoke about having to boil his handkerchiefs because of the quantity of mucus contained within the handkerchiefs. This evidence was said to satisfy the definition of "chronic bronchitis" as it appears within the Statement of Principle and which reads as follows-
"chronic bronchitis means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases ……".
The respondent pointed to references within the available Prince Henry's Hospital notes, which referred to the deceased having had a dry cough. It was said that this was inconsistent with chronic bronchitis.
The respondent relied on the results of a lung function test, which were reported to have demonstrated the deceased having an airways restriction which was said to be consistent with pulmonary fibrosis. It was said that the deceased would have had to have had a respiratory obstruction pattern on the lung function tests for the diagnosis of chronic bronchitis to have been made. Doctor Collins on behalf of Mrs Hamono said however that the report was no more than the interpretation of the data produced during the lung function test. He said he would have preferred to have had access to the data and in any event restriction in the airways was not of itself indicative of a condition other than chronic bronchitis.
Professor Cade said that he could not support the presence of chronic bronchitis and/or emphysema because he could find no evidence of it from the notes that he observed, nor could he find any reference in the post mortem report of Doctor Cavanagh, who performed the autopsy, to the presence of chronic bronchitis or emphysema. Doctor Lynch gave similar evidence, however Doctor Collins was of the opinion that there was a basis to conclude that chronic bronchitis and/or emphysema did exist based on his microscopic interpretation of the slides.
Professor Cade said that the "cysts" as referred to by Doctor Collins were in fact "bullae" which is a characteristic of pulmonary fibrosis. Doctor Collins told us that the words "cyst" and "bullae" do not have universal application or meaning.
Doctor Lynch said that had he received a history from the deceased of an ongoing productive cough with sputum that he would have made a diagnosis of chronic bronchitis because chronic productive cough was the sine que non of the diagnosis. He said however that he found no history of these symptoms in the hospital records that production of sputum was not a "positive factor" alone in the diagnosis and from his observations of the slides he was not prepared to find that chronic bronchitis was present.
We are satisfied that Doctors Collins, Cade and Lynch are all eminent medical practitioners who reported and gave opinions based on their expertise and experience (save that Professor Cade acknowledged that he was not a pathologist and would not express a preference for the opinion of either Doctor Collins or Lynch).
We found the evidence of Mrs Hamono to be compelling and truthful. She observed her husband on a daily basis suffering from the effects of a chronic productive cough. There was nothing to suggest to us that she exaggerated or embellished her evidence.
In Bushell v Repatriation Commission 1992 109 ALR 30, the High Court – particularly Brennan J, (as he then was) - gave a history of the development of the concept of "reasonable hypothesis". In this analysis, Brennan J, relied on a passage from a decision of Beaumont J in Repatriation Commission v Webb 1987 76 ALR 131 at 135 where His Honour said-
"Thus the central question in the present case was to determine whether the hypothesis advanced by the respondent as to the cause of his disease was "reasonable" or not. It is hardly necessary to observe that the question whether an hypothesis is "reasonable" is one thing; but to determine whether as a matter of professional opinion that hypothesis represents the preferred view is a different matter; a number of opinions may be held by a number of experts in the field; each view may be reasonably held, notwithstanding that they may lead to different conclusions. The point sought to be achieved by the introduction of s.120 of the notional of "reasonable" hypothesis is the distinction between a theory that is rationally based on the one hand and an opinion or view that is irrational, absurd or ridiculous on the other …. The exercise is not one of balancing or weighing the respective merits of a range of professional opinions. Rather it is the case of determining whether the particular theory has a rational foundation".
Mason C.J., together with Deane and McHugh J.J., at page 35 in Bushell said-
"But leaving aside cases of those kinds, the case must be rare when it can be said that a hypothesis based on 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 hypothesis or to determine whether one medical or scientific opinion is to be preferred to another".
At page 34 of Bushell there Honours said-
"The material will raise a material hypothesis within the meaning of s.120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be said as reasonable if the raised facts are true".
In the present application we are satisfied that the material before us raises a reasonable hypothesis because the material points to facts which support the hypothesis. We are further of the opinion that the hypothesis can be regarded as being reasonable because the raised facts are "true". We are not satisfied that the hypothesis advanced by Mrs Hamono can be regarded as "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". (Re East).
This hypothesis was supported by Dr Collins who is an experienced medical practitioner and eminent in the field of pathology. His opinion is in conflict with the opinions of Professor Cade and Doctor Lynch but it does not render the hypothesis as unreasonable.
In Repatriation Commission v Deledio 1998 49 ALD 193, four stages were recited by the Full Court which should be followed by the Tribunal involving claims decided after the 1994 amendments to the Veterans Entitlements Act which introduced Statements of Principles.
As we have said above, we are satisfied that stages 1 and 2 are satisfied because the material points to a hypothesis connecting the death of Mr Hamono with his service. As may be seen from the introduction to this decision, there is a relevant Statement of Principle in force having been issued by the Repatriation Medical Authority.
Insofar as the third stage is concerned we are satisfied that the hypothesis fits within and/or is consistent with the "template" of the Statement of Principle because the hypothesis raised contains one or more of the factors which we are satisfied exist as a minimum and which related to service. It follows that the hypothesis is reasonable & cannot be said to be "contrary to proved or known scientific facts nor otherwise fanciful". Additionally, we are satisfied the deceased did suffer chronic bronchitis actually and as defined in the SoP and it was related to cigarette smoking.
With respect to the fourth stage and the consideration of s.120(1), we are not satisfied beyond reasonable doubt that the death of the late Mr Hamono was not war-caused.
It follows therefore that the decision under review must be set aside.
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member, Mr A. Argent, Member & Dr C. Re, Member.
Signed:         .....................................................................................
  Secretary
Date/s of Hearing  7 March 2001 & 19 February 2001
Date of Decision  3 April 2001
Counsel for the Applicant        Tim Seccull
Solicitor for the Applicant
Counsel for the Respondent    Jean McCulloch
Solicitor for the Respondent