Hancock and Repatriation Commission - [2002] AATA 1227

DECISION AND REASONS FOR DECISION [2002] AATA 1227

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/412

VETERANS' APPEALS DIVISION          )
           Re      AILEEN PATRICIA HANCOCK
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J. A. Kiosoglous MBE

Date27 November 2002
PlaceAdelaide

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the veteran's death was war caused within the meaning of section 8 of the Veterans' Entitlements Act 1986.
  (signed)
  J. A. KIOSOGLOUS
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – whether death war-caused – veteran underwent operation for cancer – accepted condition of osteoarthrosis of knees – whether accepted condition hastened death – reasonable hypothesis.

Veterans' Entitlements Act 1986 ss.8, 120, 120A

Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Bey (1997) 47 ALD 481

REASONS FOR DECISION

27 November 2002 Senior Member J. A. Kiosoglous MBE

This is an application by Mrs Aileen Patricia Hancock (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 25 July 2000 (T2) which affirmed a decision of a delegate of the respondent dated 21 January 2000 (T28) rejecting the death of the applicant's husband Mr Francis William Hancock (the veteran) as war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 ("the Act").
The Tribunal received into evidence the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (T1-T34), together with five exhibits, three lodged by the applicant (Exhibits A1-A3) and two lodged by the respondent (Exhibits R1-R2). In addition the Tribunal heard evidence from Dr Bryan William Robert Betty, medical practitioner. The applicant was represented by Mr G. Hemsley, of Counsel, and the respondent by Mr G. Doube, a departmental advocate.
Issue
The issue before the Tribunal is whether or not the death of the veteran was due to war service pursuant to section 8 of the Act. In other words, the applicant is not entitled to a widow's pension unless the veteran's condition can be shown to have been war-caused.
History of the Application
The veteran was born on 4 April 1917 in Port Pirie, and served with the Australian Arny from 6 August 1940 until 8 March 1946 during which time he served outside of Australia and in the vicinity of the South Pacific. This whole period of service is deemed to constitute "operational service" under the Act.
The veteran died on 19 September 1999, aged 82 years. The death certificate (T5/57) lists the cause of death as being:
"small bowel adenocarcinoma 2 months".
On 11 November 1999 the applicant lodged a claim for pension in respect of the death of the veteran (T5/47-56) which was rejected by the respondent on 21 January 2000 (T28/159-165). The applicant applied to the VRB for review on 10 March 2000 (T30) and on 25 July 2000 the VRB affirmed the decision of the respondent (T2). The applicant was advised of this decision in a letter dated 28 July 2000 (T3). An application for review was lodged with the Administrative Appeals Tribunal on 24 October 2000 (T1).
Applicant's Evidence
The applicant's evidence was provided to the Tribunal by way of submissions by Mr G. Hemsley and Dr B. W. R. Betty. Mr Hemsley in his submissions stated that the primary issue before the Tribunal is whether the veteran's death could be considered to be war-caused. In determining this he submitted that the Tribunal did not need to have recourse to the Statement of Principles (SOP).
He submitted that osteoarthrosis of the left knee and osteoarthrosis of the right knee were both accepted as war disabilities. This was not disputed. He acknowledged that the condition of small bowel adenocarcinoma was not war-caused but that it was terminal. He further submitted that whilst a number of conditions are accepted disabilities and others are rejected conditions it was emphasised that the applicant's claim is that the knee conditions played a part in contributing to the veteran's death. He submitted that, even if the death was multi-factorial, a material contribution arose because of the veteran's inability to mobilise due to those accepted conditions.
Mr Hemsley submitted that the primary cause of death was the adenocarcinoma but that it was the war-related disabilities that affected the veteran's ability to recover, namely the osteoarthrosis of both knees which caused him to be immobile. He also submitted that the VRB in arriving at its decision accepted that it was possible for the service-related osteoarthrosis to have played a role but decided that it did not. He further submitted that the applicant is not disputing that the overwhelming cause of the veteran's death was his primary and secondary cancer but that the accepted war disabilities of osteoarthrosis of the right knee and of the left knee were contributory towards his death.
Mr Hemsley submitted, in relation to the applicant's knee condition, that the first reference to this appeared in historical records (T11/86) of 9 September 1982 wherein it was stated, inter alia:
"Mr Potter (Orthopaedic Surgeon) reviewed Mr Hancock and thought he had early osteoarthritis of the knees, confirmed on x-ray, affecting primarily the patella-femoral joints and recommended physiotherapy, quadriceps exercises and intermittent use of anti-inflammatory agents."

He further referred to a number of other section 37 documents relevant to the osteoarthritis of the knees and in particular to the veteran's claim for the condition (T20/132) which was successful in their being accepted as war-caused disabilities. He also informed the Tribunal of the assessment of impairment ratings of 20 points for each impairment, namely osteoarthritis of the left knee and osteoarthritis of the right knee (T25/154).
Dr Samsher Ali

Dr Ali was not called to give evidence but a report of his dated 19 September 2001 (Exhibit R2) was tendered, which provided as follows:
"Thank you very much for talking to me this afternoon at 2.15 pm about the report that you want me to submit about Mr Hancock. Mr Hancock has presented with blood in his bowel motions and had a total colonoscopy on account of this on 6.8.1999. This showed a large lesion in the caecum. Biopsies were taken. This was reported to be malignant. He was taken to theatre on 24.8.1999 and a right hemicolectomy plus a small bowel biopsy was performed.
The tumour tissue was quite extensive. There were large metastatic deposits in the liver with approximately 60% of the liver mass being replaced by tumour tissue. There was multiple peritoneal seedlings in the pelvis. Post operatively he did poorly and reviewing the notes from the hospital I see that he had suffered a right-sided CVA and had also suffered osteoarthritis, which was accepted as a war related condition. However given the fact that post operatively he had suffered a cerebra vascular accident and was generally in a very poor state of health, it is a very difficult call to identify the pre-existing arthritis as a cause for a acceleration of his demise."

Dr B. W. R. Betty

Dr Betty, general practitioner, prepared four reports dated 19 October 1999 (T5/61), 4 February 2000 (T29/166), 30 June 2000 (T33/173), and 17 October 2001 (Exhibit A3) respectively. In his report dated 19 October 1999 (T5/61) he stated, inter alia, that the veteran died on 19 September 1999 after a period in hospital following an operation for a hemicolectomy at which secondaries from a malignant tumour in the bowel were discovered.
In the report dated 4 February 2000 (T29/166), Dr Betty stated, inter alia:
"While the cancer itself was not related to his war service, Mr Hancock's other war related disabilities I believe contributed to and hastened Mr Hancock's death after his bowel operation.
Mr Hancock's severe osteoarthritis and lung condition limited Mr Hancock's ability to mobilise and effectively recover from the operation and he never left hospital and died soon after. At the time I was looking after Mr Hancock and was concerned by the influence these other conditions were having on his recovery."
In his report dated 30 June 2000 (T33/173), Dr Betty stated, inter alia,
"As I have stated Mr Hancock suffered from a small bowel carcinoma which was operated on in Port Pirie. Subsequent to this Mr Hancock died. Mr Hancock's small bowel cancer is not war-related. However, as the treating doctor subsequent to the operation and having known Mr Hancock as his regular G.P. Mr Hancock's progress post op was complicated by his inability to mobilise. This was in large part due to his sever arthritis and in particular his arthritis of his knees which is related to war service.
While accepting that Mr Hancock's condition was terminal, I have no doubt his life was shortened by the war-related disability. This I believe should be taken into account by the appeals tribunal."
In his report dated 17 October 2001 (Exhibit A3), Dr Betty stated, inter alia:
"As I have stated previously I am of the view that Mr Hancock's severe osteoarthritis of the knees did contribute to shortening Mr Hancock's life. I agree that the cause of the death was the small bowel cancer with metastatic spread and after the operation Mr Hancock was palliative. He did suffer from a CVA on 28 August 1999 post operation and this also slowed his potential recovery. I also noted in his notes on 13 September 1999 that Mr Hancock's mood had become low, he was tearful and suggested the need for anti-depressants. This was related to the slow speed of his recovery, which was due to his underlying cancer, subsequent CVA but complicated by pre-existing poor mobility due to his osteoarthritis.
Mr Hancock's recovery post the CVA was slow but steady. On 10 September 1999 it was noted he was able to mobilise to the toilet and back with a frame and subsequently was noted to be able to walk 10 metres with a frame. However his recovery was slowed by his pre-existing osteoarthritis. This as I have said I believe directly contributed to his shortened life span post operation. It certainly contributed to the subsequent depressive symptoms which set Mr Hancock back in the final days of his life.
I note Dr Ali's statement of the difficulty in identifying the pre-existing arthritis as accelerating his demise. While I respect Dr Ali's opinion, as Mr Hancock's Medical Officer who dealt with Mr Hancock's rehabilitation, stroke and depressed mood I have no doubt that his pre-existing arthritis slowed his subsequent post operation recovery and did in fact contribute to shortening his life."
Dr Betty, who now resides in New Zealand, stated that he has been a medical practitioner for some thirteen years, of which he spent about nine years in Port Pirie as a visiting medical officer to the Port Pirie Regional Health Service as well as a general practitioner of the town. As to his qualifications he stated he has a Fellowship of the Royal Australian College of General Practitioners as well as being a Fellow of the Australian College of Rural and Remote Medicine.
Dr Betty explained that the latter qualification not only recognises him as a general practitioner of Australia but also as being a rural and country practitioner. He explained the difference between city practice and country practice. In country practice he stated that a general practitioner has
"…quite a bit to do with hospital work in terms of accident, emergency, medical and patients, surgery, post-operative care, palliative care, so we manage all our patients in hospital, plus we provide community general practices to the town, so these qualifications provide me with what is called admission rights, or visiting rights to the Port Pirie regional hospital, where I manage my patients."

He agreed that as a result he is in a position to treat a person to a greater degree and for a greater area of conditions than would normally be available to a city practitioner including, as a country practitioner, having access to hospital visiting rights and to practice hospital medicine.

Dr Betty stated that it was in this capacity that he had dealings with the veteran, Mr Hancock. He stated that the veteran was first transferred to him as a patient in 1994 and he became the veteran's general practitioner. In that capacity he was responsible for managing a range of health problems and for the veteran's post-operative care. He also stated that a surgeon from Adelaide performed surgery on the veteran and attended to him when visiting Port Pirie in the next two weeks after which Dr Betty was totally responsible for the veteran's care. He stated that it is the practice for the specialist to then leave the care and management of the patient to the rural practitioner.
Dr Betty stated that when he first saw the veteran in 1994 the condition of osteoarthritis of the knees was present. He described the veteran as having quite severe restriction of his left and right knees as well as having arthritis of the ankles, feet and lower back. He stated, however, that the veteran's knees over time were the focus of the problem as they restricted mobility. He further stated that the veteran had restricted flexion extension of the knees, and that the arthritis was severe and started to restrict his lifestyle, mobility and in particular the ability to play bowls and to move around. He stated that he discussed with the veteran the possibility of joint replacements.
Dr Betty agreed that the veteran underwent an operation which in layman's terms was for small bowel cancer, as a consequence of which he was bedridden for a short time. He stated that as a result of being bedridden the veteran was not mobile and in terms of recovery such immobility increases the risk of complications. He further stated that a person who is not mobile has a risk of blood clots in the leg as well as a risk of infections such as in the chest, pneumonia, and also may experience psychological problems.
Dr Betty stated that the rate of blood-flow is not overly important in an operation, but circulation is very important post-operatively. Poor circulation and immobility lead to an increased risk of blood clots forming in the legs. In the case of a patient who is forced to lie on their back bedridden, secretions move down into the chest more thus leading to an increased risk of chest infections. He stated that the bigger the surgery the slower the recovery, hence it restricts the ability to mobilise to a greater extent. He agreed that the veteran's condition was terminal with a life expectancy of three to six months.
In relation to his comment in his report dated 30 June 2000 (T33/173) wherein he wrote of the condition being terminal and the veteran's life being shortened by the war-related disability he explained that the veteran's arthritis was severe, particularly the arthritis in the knees. He stated that this significantly restricted his movements and lifestyle prior to the operation as a result of which he considered the veteran's level of fitness being less than what it should have been. He further stated that he considered that the veteran's mobility post-operatively was compromised by his arthritis. Whilst he accepted that there may have been other factors he nevertheless believed that the arthritis was one of the factors that led to a shorter life expectancy post operation than otherwise would have been the case.
In relation to the report of Dr Ali (Exhibit R3) Dr Betty stated that he agrees that the veteran suffered a right side CVA four days after surgery. He stated that the CVA would have slowed up the veteran's mobility post operatively. Dr Betty went on to say that the veteran was psychologically becoming depressed and down and suffered with other conditions including vomiting and diarrhoea. Notwithstanding those other conditions he agreed that the lack of mobility was a material contribution to the veteran's earlier demise. Whilst he believed the life expectancy of the veteran was three to six months in fact the veteran lasted about three weeks post-operatively, hence the lack of mobility contributed to the shortening of his life.
In cross-examination Dr Betty stated that apart from his training he did not have any formal oncology qualifications. He agreed that the operation undertaken on 23 August 1999 by the veteran was a major and necessary procedure. He stated that the operation performed was a hemicolectomy in which the right side of the large bowel was removed. He further stated that this was done after a colonoscopy which found the veteran to have a polyp in the secum on the right bowel. The hemicolectomy is a standard procedure to remove the polyp before it has any chance of spreading.
When it was put to him that one would expect an 82 year old man after such an operation to be bedridden for quite some time, Dr Betty stated that in his experience such was not the case. He further stated that patients can get up and be mobile for similar operations and be discharged from hospital some two to three weeks post operatively. He enlarged on this, saying that such depended on a lot of things such as how well one was mobilised after surgery, one's level of fitness and how much support was received at home. This also applied to people who suffered a stroke four days after the operation but it was dependent on the severity of the stroke and how quickly it was responded to. The veteran suffered a stroke to the right side which affected his arm and leg on that side.
In response to the statement of Dr Ali (Exhibit R2) that post-operatively the veteran did poorly, Dr Betty stated that initially the veteran did not do all that badly. In fact he said the hospital notes recorded that the veteran was doing "…okay post op when he [another doctor] handed over to myself". Dr Betty stated that the veteran "…was starting to get some recovery in the arm and the leg" and then there was a reasonably rapid deterioration in the last two or three days prior to his death. Dr Betty stated that there were different things that can bring on a stroke. He was unable to say of what nature the veteran's stroke was as he did not have access to a CT scanner, there not being one available in Port Pirie.
Dr Betty agreed with Mr Doube's proposition that "post-operatively is a poor risk for outcome" and that the increased risks relate to blood clots. He stated that the veteran had swelling in the legs but there was no indication of a blood clot. He further stated that on the night that the veteran died he deteriorated quite rapidly. The notes revealed that among other things the veteran's oxygen saturation had decreased on a blood test taken two days prior and that he had a slightly raised white cell count. He also found that the veteran "…had developed a raspy chest and a few crackles at the base of his chest on the right side".
When asked why he had not listed osteoarthritis of the knees as a condition on the death certificate (T5/57) Dr Betty stated that there was a lot going on but that he did list the predominant cause as he thought that that was the fact for which the veteran was in hospital, namely for a small bowel operation, and hence he "skipped" listing the knee conditions. He also stated that whilst he did not list the CVA on the death certificate he did so on the patient discharge report.
Dr Betty had no problem in expecting the veteran to survive for some three to six months after the operation. He stated that the hospital notes record that after the stroke the veteran was starting to regain mobility in moving his right arm and leg. He further stated that the veteran started to show improvement and to walk a little with difficulty with the use of a support frame and two people. When put to him that Dr Ali considers it highly unlikely that osteoarthritis of the knees contributed to the veteran's demise Dr Betty stated that he disagreed with Dr Ali on that point. He believed that it did contribute to the veteran's mobility post-operatively.

Dr Betty clarified that there were two identifiable causes of death, namely small bowel oedema carcinoma and another cause he was unable to name as he did not have the death certificate in front of him. He did, however, explain that the one was the operation on the bowel for cancer and the other was the subsequent discovery of the small bowel cancer.
Dr Betty also stated that it is a hypothesis that the stroke was caused as a consequence of the lack of mobility. When asked if he regarded it as a strong hypothesis, Dr Betty stated that it is a possibility but without having done a CT scan, because such was not available, it is very hard to say. He stated that by the fourth day after the operation he would have expected the veteran to be mobilising and getting out of bed. He stated that the operation occurred on the 23rd and on the 27th, after which the veteran required two assistants to help him get up from the supine position.
Dr Betty also stated that the veteran's arthritis to the knees was especially part of the reason that he was not mobilising effectively and quickly. He also agreed that it was a reasonable hypothesis that the lack of mobility by the veteran was also one of the causes of the infection, which was ultimately the cause of death.
In further cross-examination by Mr Doube, Dr Betty clarified that the death certificate noted two causes of death. There was the operation for the large bowel which revealed extensive metastatic spread of the small bowel carcinoma. He agreed that it was the small bowel carcinoma that was the prime cause of death. As to the cause of the stroke he agreed that there was speculation as to its possible cause which could not be determined due to not having access to a CT scan.
Dr Betty stated in reference to the difficulty of the veteran in being mobile and of the requirement for two assistants to get him to a sitting position that the veteran's trunk control was poor. He attributed this to the operation, the stroke and the veteran's arthritis.
Applicant's Submissions
Mr Hemsley in his closing submissions reiterated the remarks he made at the opening of this hearing as well as referring the Tribunal to Doolette v Repatriation Commission (1990) 21 ALD 489 wherein at page 492, O'Loughlin J states:
"In Repatriation Commission v Law (1980) 31 ALR 140 (affirmed on appeal 147 CLR 625; 36 ALR 411) the Full Court, after considering the meaning that had been applied to the same expression in other Acts of Parliament, said at 151 : "It seems clear the expression 'attributable to' in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show 'attributability' if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show 'attributability' if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made."
I see no reason to consider that expression "was attributable to" appearing in the present legislation should be interpreted differently. In addition, the learned deputy president pointed out, and I agree, that if death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war-caused condition, the proper conclusion would be that death was attributable to war service: Re Blyth and Repatriation Commission (1982) 4 ALN N147."
Mr Hemsley submitted that O'Loughlin J made it quite clear that it is not only just a question of the death per se that needs to be borne in mind but also that if there is an acceleration of death then that is sufficient to raise the provisions of the Act. He submitted that on the evidence of Dr Betty a reasonable hypothesis was established of an infection accelerating the veteran's death. This was based on Dr Betty's evidence of the crackles in the veteran's lungs, the heart rate, the blood cell count, and the fact that the abdomen itself, which was the source of the operation, did not appear to have any difficulties.
Mr Hemsley submitted that on the facts it is not unreasonable to postulate there was an infection and that experience has shown infections to be a normal reason for the cause of death as the final event in persons of similar age to the veteran. He submitted that Dr Betty in his evidence spoke of the ability to get people up and about and of the ability to get them moving as crucial in countering infection. He also submitted that Dr Betty did not resile from the contents of his report dated 30 June 2000 (T33/173) and in particular the passage where he writes: "I have no doubt his life was shortened by the war-related disability."
Mr Hemsley submitted that Dr Betty's specific evidence was that the veteran had a life expectancy of six months and that this was shortened, in his belief, by the lack of mobility. As to Dr Ali's evidence by way of a report (Exhibit R2) Mr Hemsley submitted that it simply refers to the fact that it is a "difficult call" to identify the pre-existing arthritis as contributing to death. On this basis it was submitted that Dr Ali leaves this open as a possibility and hence further leaves open the hypothesis provided by Dr Betty.
Mr Hemsley submitted that the respondent maintains that the cause of death is that as set out in the death certificate (T5/57), namely adenocarcinoma of the small bowel and that this is contrary to the evidence of Dr Betty. He submitted that in essence Dr Betty's evidence was that "we went in there looking for a cancer of the large bowel. In the process, we removed that and we found cancer of the small bowel which has metastasised through the liver." He submitted that nowhere in the evidence is there anything that implies that the cause of death was the operation for the large bowel cancer, which is a different condition to the small bowel cancer and that there is nothing to establish that the small bowel cancer had an effect on the death of the veteran.
In reference to Dr Ali's report (Exhibit R2) Mr Hemsley submitted that in considering it some caution needed to be taken as Dr Ali was unfamiliar with the benefits of mobilisation and that there is no evidence to say that Dr Ali knew of the veteran's subsequent health. Mr Hemsley also submitted that Dr Betty was the person on the spot observing the veteran and the one making the decisions hence it is Dr Betty's evidence that should be preferred. He submitted that the applicant does not seek any support from Dr Ali.
On the issue of raising a possibility, Mr Hemsley also submitted that this also raises a reasonable hypothesis. He submitted that in Repatriation Commission v Bey (1997) 47 ALD 481 at 492-493, Nicholson J stated:
"There may be circumstances in which evidence of a hypothesis by a suitably qualified expert founded upon some grounds whether in medical literature or experience may adduce evidence being material from which a reasonable hypothesis can be found to arise. Such evidence may be capable of description as being "a mere possibility", yet may raise a hypothesis within the principles stated in Bushell and Byrne. That is why the general description of evidence as "a mere possibility" is not helpful in that it clouds the distinction between a hypothesis raised by the material and a hypothesis of which there is evidence that it cannot be excluded but which is not otherwise raised."

Mr Hemsley submitted that by this Nicholson J was saying that if in someone's past there was an event that could have given rise to a subsequent health condition, such is a mere possibility, but that it is a possibility that is not raised on the evidence. He submitted that where a possibility is raised on the evidence, it is no less still a possibility, but it is also a reasonable hypothesis.
Respondent's Submissions

Mr Doube submitted that at the time the veteran contracted a terminal cancer he was 81 years of age and that on 24 August 1999, now 82 years of age, he underwent a major operation. This found that he had extensive malignant neoplasm of the small bowel with extensive metastatic spread in both the liver and the pelvis. He submitted that subsequent to that, and within three weeks, the veteran died and the cause of death on the death certificate stated adenocarcinoma of the small bowel. He further submitted that it was Dr Betty who signed the death certificate and that it was he who was treating the veteran at the time.
Mr Doube submitted that subsequent to the operation, and whilst still bedridden, the veteran suffered a major stroke. He submitted that prior to the stroke, Dr Betty was unaware of any attempt to mobilise the veteran. Mr Doube submitted that this is hardly surprising in someone at 82 years of age who had undergone a major operation just two days before. He submitted that the knees could not have been a condition contributing to an inability to mobilise as with assistance the veteran at that time was sitting up in bed. He further submitted that there is evidence, subsequent to the stroke, that attempts had been made to mobilise the veteran but that he was suffering significant impairment down his right side in both his arm and his leg. Mr Doube submitted that the cause of death was the adenocarcinoma of the small bowel and that any other condition is either de minimis or was not a factor contributing to the cause of death.
Mr Doube submitted that the cancer was clearly terminal from the time it was discovered and that in the post-operative period, the veteran did poorly. He submitted that Mr Hemsley has argued that the death was multi-factorial, and that in particular the osteoarthritis of the knees was a factor causing the death. Mr Doube stated that for the Tribunal to accept such argument then it was to accept that that was more than a possibility, and that it was not enough that that be a mere possibility.
Mr Doube submitted that Dr Betty mentioned that there may have been a number of possible causes for the stroke but in the end agreed that the cause of it was speculative. As to the fact that the veteran appeared to contract a chest infection Mr Doube submitted that Dr Betty gave evidence of the sorts of factors that a lack of mobility would cause, namely blood clots, pneumonia and chest infections. Mr Doube further submitted that Dr Betty's concluding remarks were that the chest infection was the terminal event. By this, Mr Doube submitted that Dr Betty was implying that at the moment of death it is either due to the heart stopping or the lungs stopping and that in the present case it was a chest infection that caused the veteran's lungs to stop. He further submitted that in this regard, the osteoarthrosis of the knees is not similar to other conditions such as those affecting the heart and lungs.
Mr Doube referred to the report of Dr Ali (Exhibit R2) wherein that Doctor stated that it is very difficult to identify the pre-existent arthritis as a cause for the acceleration of the veteran's demise. Mr Doube submitted that the evidence in this case clearly points to the fact that death was caused by adenocarcinoma of the small bowel and the SOP factors for that condition are not met. He also submitted that the law is quite clear in that the possibility on the facts has to be more than a mere possibility.
Discussion and Findings
The Tribunal has not set out the evidence and submissions before it in full, but in arriving at its decision has taken the evidence as a whole, including submissions, into account.
The applicant's contention is that one of the contributing factors towards the death of the veteran was osteoarthritis of the right and left knees. It is not disputed and the Tribunal is satisfied that the veteran suffered from cancer for which he underwent surgery. The applicant did not at any time contend that the cancer be accepted as war-caused. Rather, the applicant contended that whilst cancer was present it was not the only cause of death.
The contention by the applicant that the osteoarthritis of the knees was one contributing factor towards the veteran's death was based on the veteran's reduced mobility after the surgery. It was further contended that the reduced mobility hastened death. The standard of proof required is that a reasonable hypothesis must be raised. If such hypothesis is raised on the evidence before the Tribunal then the applicant must succeed unless the respondent disproves it beyond reasonable doubt.
The focus of the dispute in this matter is whether a reasonable hypothesis was raised on the evidence, or whether or not it was a "mere possibility" or "pure speculation" that there was some connection between the accepted condition and the death of the veteran. It is not enough for the possibility to be that it merely be "left open" that the condition may have caused the death.
In the matter of Bey it was stated that the phrase "mere possibility" was not inconsistent with "reasonable hypothesis", and it depended on how the phrase "mere possibility" was used. However, the case law emphasises that such hypothesis must be reasonable. Nicholson J stated in Bey that expert testimony alone may raise a reasonable hypothesis but that depends on how the Tribunal evaluates the level of expertise of the expert in the field. He stated at 493:
"….
(7) A "mere possibility", in the sense of an hypothesis advanced, eg: by a medical practitioner speaking within the ambit of his expertise, will ordinarily raise a reasonable hypothesis. The evidence of expertise will provide the acceptability or credibility to the hypothesis even if the evidence is the hypothesis cannot be excluded: Bushell (at [(1992) 175] CLR 414 and 430). While eminence in such field alone, in a case where the medical opinion is no more than to the effect the possibility of causation of the morbid condition by the nature of the service cannot be excluded, is close to an hypothesis unsupported by any evidence, it will, however, be a matter of judgment whether the eminence is such as to give rise to raised facts.
(8) A "mere possibility", in the sense of an hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility, cannot qualify as a reasonable hypothesis - it will not be an hypothesis "raised by the facts."
(9) An hypothesis which satisfies s 120(3), that is reasonable having regard to the raised facts, will create the position where it cannot be conceived there is any ground for a conclusion by the Commission under s 120(1) that "there is no sufficient ground for making that determination": compare Bushell at CLR 416.

In the current matter the only evidence before the Tribunal indicating that there is some connection between the osteoarthritis of the knees and the veteran's death is that of Dr Betty. He considered several possible connections, for example the veteran suffering a blood clot, or the possibility that the immobility caused the veteran's stroke. In his final assessment he stated that these were all speculation, with the exception being the hypothesis of an infection in the chest. Dr Betty stated that whilst being in one sense "speculation", it was nevertheless a reasonable hypothesis. He had regard to the fact that he heard rasping noises when he listened to the veteran's chest shortly before death, as well as the decreased oxygen levels and increased white blood cell levels in the veteran's blood noted several days before death.
During his evidence, Dr Betty stated that the immobility of the veteran quite possibly caused an infection causing death. He also stated, however, that this immobility was materially contributed to by the arthritis of the knees as well as arthritis in other areas of the body and in particular the back. Dr Betty also referred to the veteran's weakness of the trunk after the operation and the effects of the stroke. In addition the veteran was depressed, had advanced cancer and was frail.
For the applicant to succeed in this matter the Tribunal will need to accept Dr Betty's evidence and be satisfied to the relevant standard of proof that the veteran's arthritis increased his immobility and hence was a factor resulting in death. Dr Betty has listed a number of factors playing a role in the death of the veteran including, in his view, the contribution of the accepted condition of the osteoarthritis of the knees. In considering the effect of the osteoarthritis the Tribunal also needs to give consideration to the effect of the stroke which followed soon after the surgery. In normal circumstances it would be acceptable that after surgery every effort would be made to mobilise a patient. How soon such would be effected would be dependent on the seriousness of the surgery. Had the veteran not had the stroke one would have expected efforts to mobilise him within a few days following surgery.
Unfortunately, the veteran suffered a stroke which Dr Betty insisted affected mobilisation. On the evidence it was clear that efforts were made to lift and mobilise the veteran, but without much success. The Tribunal has before it for its consideration two matters, the first being the degree of severity of the stroke and secondly its effect on mobilisation.
There is little evidence before the Tribunal to indicate the seriousness of the stroke. On this basis the Tribunal would have to lean on the side of caution in that the stroke, while having affected the veteran, enabled him to be lifted up with difficulty in a sitting position with the support of two persons. The veteran slowly regained movement after the stroke and could move with the support of a frame and two assistants. In the meantime, however, Dr Betty described the veteran suffering with symptoms of an infection in the chest. Dr Betty's evidence is the only medical evidence before the Tribunal which indicates that being able to walk and be mobile helps to prevent such infections. He stated that failure to be mobilised would result in the infection hastening death. Dr Betty also stated that whilst it is a hypothesis that the stroke was a consequence of the lack of mobility it was not possible to say to what extent such would be the case as he did not have the assistance of a CT scan.
Dr Betty stated that after the veteran's operation he estimated the veteran's life expectancy as being from three to six months. In fact the veteran died nineteen days after surgery. The Tribunal is satisfied on the evidence that this is not a large discrepancy given the condition of the applicant.
Before further commenting on the evidence of Dr Betty, the Tribunal refers to the brief report of Dr Ali (Exhibit R2) and is satisfied that, while noting his opinion, it cannot give much weight to his views. On the other hand the evidence of Dr Betty has to be considered carefully as he was the medical practitioner primarily responsible for the treatment of the veteran immediately prior to the surgery and subsequently. Dr Betty was adamant that the condition of the osteoarthritis of the knees, being accepted as war-caused, was a contributing factor towards the death of the veteran as this prevented his mobility, causing an infection to bring about death.
There is no doubt, and the Tribunal is satisfied on the evidence, that Dr Betty, whilst not possessing specialist qualifications, is an experienced medical practitioner. The Tribunal accepts the evidence that doctors in regional areas develop a greater degree of skill in treating patients by virtue of the opportunities and experience provided in hospitals in country-regional areas. This experience encompasses, accepting the testimony of Dr Betty, post-operative and palliative care.
The Tribunal is satisfied that the experience acquired by Dr Betty as a regional/country medical practitioner does enable him to give a view that would need to be given serious consideration. In the light of very little or no other medical evidence relevant to the issues before the Tribunal then the evidence of Dr Betty is significant. Throughout his evidence, Dr Betty was insistent that the veteran was immobilised due to the war-caused osteoarthrosis of the knees, which condition in this manner contributed to death. Based on this evidence, the Tribunal is satisfied that, as a matter of fact, the hypothesis linking the veteran's osteoarthrosis of the knees to his death was reasonable. The Tribunal is further satisfied, considering the comments of O'Loughlin J in Doolette at page 492 (quoted herein at paragraph 35), that, the death being "hastened because of the accelerated process of a disease, which acceleration was itself caused by a war-caused condition", the death can be attributed to that war-caused condition (ie the osteoarthrosis of the knees).

A reasonable hypothesis having been raised on the evidence before the Tribunal, the Tribunal finds that the respondent has failed to disprove the hypothesis beyond reasonable doubt. Leaving aside the respondent's submissions as to the reasonableness of the hypothesis raised, the evidence was scant. The respondent primarily submitted that the veteran was elderly, frail and infirm. The Tribunal finds that this is insufficient to meet the burden of proof imposed on the respondent by the Act. Consequently, the Tribunal finds that the death of the veteran was war-caused.
Decision
Accordingly, for the reasons outlined above the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the veteran's death was war caused within the meaning of section 8 of the Act.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J. A. Kiosoglous MBE.
Signed:   (signed)
  John Howell, Associate
Date/s of Hearing  21 June 2002
Date of Decision  27 November 2002
Counsel for the Applicant        Mr G. Hemsley
Solicitor for the Applicant         Mr G. Hemsley
Counsel for the Respondent    Mr G. Doube
Solicitor for the Respondent    Department of Veteran's Affairs