Handby and Repatriation Commission
[2007] AATA 20
•16 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 20
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/1278
VETERANS' APPEALS DIVISION
Re: JOYCE INA HANDBY
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
| Tribunal | G.D. Friedman, Senior Member |
Date16 January 2007
PlaceMelbourne
| Decision | The Tribunal sets aside the decision under review and substitutes a decision that the veteran’s death was war-caused and Mrs Handby is entitled to be granted widow’s pension with effect from 25 November 2003. |
(sgd) G. D. Friedman
Senior Member
VETERANS' AFFAIRS ‑ widow’s entitlement ‑ death from mesothelioma and bronchopneumonia - obstructive airways disease - ischaemic heart disease - whether war‑caused
Veterans’ Entitlements Act 1986 ss 8(1), 120(1), (3), (4), 120A
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission [2005] HCA 40
REASONS FOR DECISION
16 January 2007 G.D. Friedman, Senior Member
Joyce Handby, widow of John Ainsley Malcolm Handby (the veteran), has sought review of a decision by the Veterans’ Review Board dated 6 October 2004 affirming a decision of a delegate of the Repatriation Commission to refuse a claim for widow’s pension because the veteran’s death was not related to his service.
BACKGROUND
The veteran was born in India on 12 April 1926 and moved to England after one or two years. His family migrated to Australia when he was aged 14 years, and he attended agricultural college before obtaining employment as a labourer on his father-in-law’s orchard. He served in the Royal Australian Air Force (RAAF) from 6 June 1944 to 1 May 1946 as a telegraphist, and his service constitutes operational service under the Veterans’ Entitlements Act 1986 (the Act). After discharge the veteran worked as a storeman in a motor vehicle business for four years before obtaining employment with the then State Electricity Commission (SEC) where he remained until his retirement at the age of 60 years.
The veteran died on 9 May 1997. The cause of death was certified as:
· bronchopneumonia – 24 hours; and
· mesothelioma – 3 months.
At the time of the veteran’s death the following conditions were accepted as service‑related:
·cervical spondylitis;
·ischaemic heart disease; and
·hypertension
The following conditions were not accepted as being service-related:
· lumbar spondylosis with sciatica; and
· mesothelioma
ISSUE
The issue before the Tribunal is whether the veteran’s death was war‑caused as a result of obstructive airways disease, ischaemic heart disease or exposure to asbestos.
EVIDENCE
In a statement dated 17 November 2004 (Exhibit A1) Mrs Handby said that when she met the veteran in 1943 he was a non-smoker, but commenced smoking during service. She estimated that he smoked 20 to 30 cigarettes per day when he was discharged, and she reported that he had told her he took up smoking after an incident in the Philippines when he killed a Japanese prisoner who had tried to escape. She said that his level of smoking continued until shortly before his death. Mrs Handby stated that the veteran suffered from a cough for many years which she believed was a smoker’s cough, and that he suffered from bronchitis as a result of the service-related smoking habit. She said that the symptoms of bronchitis persisted in the last three months of his life.
Mrs Handby stated that when the veteran was diagnosed with mesothelioma she discussed with him the possibility of exposure to asbestos, but he was not aware of any material or item of equipment used by him during service that might have contained asbestos. She said that he had speculated that cigarette filters, or buildings he entered in the Philippines, might have contained asbestos. Mrs Handby said that to her knowledge none of the houses in which the veteran lived throughout his life contained asbestos, and he had told her that none of his civilian occupations was a likely source.
In a statement dated 3 November 2005 (Exhibit A2) Mrs Handby said that the veteran was diagnosed with ischaemic heart disease in his 40s and took prescribed medication for the rest of his life. She stated that his health deteriorated from mesothelioma which was diagnosed about three months before his death, and he suffered from breathlessness and chest pain, which she attributed to the ischaemic heart disease.
Mrs Handby stated that she was a trained nurse and had assisted the veteran throughout his period of ill-health. She expressed her belief that ischaemic heart disease contributed to his death, together with lung problems, mesothelioma and bronchial pneumonia. She said that smoking-related airways disease may also have contributed.
In a written statement dated 17 November 2004 (Exhibit A4) Mr R. Handby, the veteran’s son, stated that he is employed as an environmental health officer and is familiar with asbestos, its use and disposal. He said that to his knowledge the family homes occupied by the veteran and Mrs Handby did not contain any asbestos. He said that after the veteran was diagnosed with mesothelioma, they discussed possible exposure to asbestos, including the veteran’s service in the RAAF, particularly overseas service in the Philippines, but neither he nor the veteran was able to establish any specific exposure.
In oral evidence Mr Handby said that the veteran’s civilian occupations were unlikely to have been the source of asbestos. He agreed that as there was no obvious prolonged exposure to asbestos, the source of exposure was impossible to determine. Mr Handby said that asbestos is only dangerous when it is disturbed, for example when it is cut, sawn or drilled.
In a written statement dated 28 November 2005 (Exhibit A3) Dr P. Haslau, general practitioner, said that he had been the veteran’s treating doctor for more than 20 years until the veteran’s death. Dr Haslau told the Tribunal that in 1976 the veteran had reported chest pain and was diagnosed with ischaemic heart disease and hypertension. In 1996 a fluid build-up was detected in his lungs, and after initial inconclusive tests further examination revealed the presence of mesothelioma. Dr Haslau said that the veteran continued to suffer from angina, but subsequent lung complications overshadowed the heart complaint. Dr Haslau concluded that nicotine dependency, chronic obstructive lung disease and ischaemic heart disease contributed significantly to the veteran’s death from bronchopneumonia, and that smoking-related lung cancer might have also contributed.
In oral evidence Dr Haslau could offer no explanation as to possible sources of exposure to asbestos, but suggested that building materials used at some of the bases attended by the veteran might have contained the substance. He said that the veteran’s smoking habit might have contributed to the failure of the veteran to recover fully from his breathing problems.
In a report dated 3 February 2005 (Exhibit A5) Dr J. Jenkinson, general practitioner, stated that he attended the veteran several times before the veteran’s death in the absence of Dr Haslau. Dr Jenkinson noted that the veteran must have been exposed to asbestos but was unable to comment on the likelihood of such exposure during service. With respect to ischaemic heart disease, Dr Jenkinson said that there is a possibility that the condition contributed to the veteran’s death. He stated:
Mr Handby smoked from his war years until 1992, this of course would not have helped his overall health and resistance to other diseases, in particular it could have hastened his death by causing damage to his lungs elsewhere, other than the site of his mesothelioma, so that his terminal event of bronchial pneumonia may have been also enhanced by the background of obstructive airways disease.
It is possible that his pre-existing cardiac problems could have influenced any treatment modalities to be entertained or the management of his mesothelioma. I cannot speak for the decision-making processes by those consultants who reviewed him in the terminal stages of his disease.
Certainly, smoking and ischaemic heart disease, which were pre-existing, would have not helped his outcome, and indeed may have hastened his death.
Dr R. Collins, consultant forensic pathologist, prepared reports on 18 March 2005 (Exhibit A6), 24 August 2005 (Exhibit A7), 27 March 2006 (Exhibit A8) and 12 May 2006 (Exhibit A9). In Exhibit A7 (pages 4 & 5) he concluded, after examining relevant documents and microscopic slides of the veteran’s right lung:
In summary, I am presently of the opinion that both the smoking related conditions of coronary atherosclerosis and chronic bronchitis/obstructive lung disease could have, at best, played a contributory role in the death of late Mr Handby. If it were accepted that his smoking habit was as a consequence of his war experiences, then there is a potential link between his war service and death, through the hypothesised mechanisms of the above-stated diseases and his demise with cigarette smoking being an aetiological agent in each disease.
In Exhibit A8 Dr Collins stated:
In my view, having regard to the production of clinical signs and symptoms consequent upon the development of chronic obstructive airways disease, it would be entirely reasonable to opine that there would have been an abnormality of the late veteran's respiratory tree sufficient to predispose him to the development of terminal bronchopneumonia.
Dr Collins concluded that there was a reasonable possibility that the smoking-related lung and cardiac diseases suffered by the deceased hastened his demise.
In a report dated 11 October 2005 (Exhibit A10) Dr A. Pitt, cardiologist, stated:
I agree with Dr Jenkinson that it is possible that ischaemic heart disease contributed to the death of Mr Handby. Such death due to mesothelioma was inevitable but it is possible that ischaemic heart disease hastened that death. However in my opinion although possible this is not likely.
…
Therefore although it is agreed that ischaemic heart disease may have contributed to death including hastening such death there is no evidence provided to support this possibility.
Dr Pitt noted that the veteran had been a smoker for many years and that his smoker’s cough was almost certainly due to chronic bronchitis. Dr Pitt recognised that patients with lung disease including smoking-related lung disease are prone to chest infections such as bronchial pneumonia. He concluded:
It is therefore possible that smoking induced lung disease hastened the death of Mr Handby. In my opinion however based on the circumstances of his terminal illness such hastening of death would have been only by a very short period.
Dr D. Hart, consultant respiratory physician, stated in a report dated 8 November 2005 (Exhibit A12) that he reviewed relevant documents including clinical notes. He concluded:
I have examined the evidence in the files to search for a reasonable hypothesis linking his ischaemic heart disease or smoking related lung disease to his death from mesothelioma. For both ischaemic heart disease and smoking caused lung disease there are weakly plausible hypotheses as outlined above which may have caused Mr Handby to die a very short period earlier. I can find no direct facts in the files which point to either of these scenarios to make them any more than theoretical possibilities.
Professor J. Cade, Director of Intensive Care, The Royal Melbourne Hospital, prepared reports dated 22 November 2005 (Exhibit R7), 7 March 2006 (Exhibit R8) and 28 April 2006 (Exhibit R9). In Exhibit R7 he stated:
Ischaemic heart disease had been documented to have been present for over 20 years prior to death. Moreover, it had been accepted as service-related. However, as late as three months before his death, left ventricular function was normal, and there had been no infarction, failure or arrhythmia. In addition, there was no mention of any cardiac features in any of the clinical records prior to death. Thus, I agree with Professor Pitt that a cardiac contribution to death is unlikely.
In relation to chronic airways disease, Professor Cade stated:
Chronic obstructive airways disease was never clinically diagnosed in this patient. Even during his admission to the Austin Hospital for lung surgery three months before his death, no such diagnosis was made. Lung function tests at this time were grossly abnormal but with features attributable chiefly to the mesothelioma. There was only mild obstruction at this time. More importantly, even if he did have (service-related) chronic obstructive airways disease with his predisposition to acute infective complications, there is no evidence that any such infection (if indeed it occurred) contributed materially to death, for the reasons outlined above.
In Exhibit R8 Professor Cade said:
a) Even if he had chronic obstructive lung disease (which were service-related), it was clearly mild on testing and there is no evidence in the available documentation to suggest that it had ever previously caused bronchopneumonia…
…
c) Most importantly, again as I previously indicated, terminal bronchopneumonia is a common mechanism of death in patients dying of advanced cancer, but it cannot be considered the underlying cause of death.
In Exhibit R9 Professor Cade said:
3. Dr Hart also believes, as do I, that any potential contribution to the patient’s presumed terminal bronchopneumonia by any chronic obstructive airways disease (if it existed) would have been insufficient to have made a difference of “more than perhaps hours or a day or two at most in what was an already inevitably fatal illness”.
Research on possible exposure to asbestos by the veteran during service was undertaken by Mr R. Piper, Military Aviation Research Services. In a report dated 10 October 2005 (Exhibit R6) Mr Piper stated:
· No specific area, vehicle, aircraft, ship or work environment could be discovered where Mr Handby would have been exposed to asbestos during his RAAF service in World War II, both in Australia and overseas.
· The veteran may have worked in fibro buildings, travelled on a ship or been in and around vehicles that contained asbestos in one form or another during his RAAF service. However, the period of that exposure or the relevant circumstances cannot be determined at this stage.
Mr Piper referred to the veteran’s short period of service in the Philippines, but said he was unable to determine whether there was any exposure to asbestos in that country. Mr Piper noted that the veteran was employed with the SEC after service and lived in a cement or fibro sheet home. Mr Piper speculated that both sites were possible sources of asbestos. He stated that a specialist in Australian World War 2 radio equipment had not noted any asbestos in the construction of radio equipment that was likely to have been used by the veteran.
LEGISLATIVE FRAMEWORK
Section 8(1) of the Act provides:
8(1)Subject to this section …, 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;
…
The standard of proof in claims made in respect of the death of a veteran relating to operational service is specified in s 120(1) of the Act, which provides that the death of a veteran was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Section 120(3) of the Act provides that:
…the Tribunal shall be so satisfied if after considering all the material before it the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
Section 120A of the Act provides that, for the purposes of s 120(3) of the Act:
…a hypothesis connecting the death of the veteran with the circumstances of any particular service rendered him is reasonable only if there is in force a Statement of Principles (SoP) that upholds the hypothesis.
In cases where s 120A of the Act applies, the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 set out a four‑step process:
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…
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…
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… If the Tribunal is so satisfied, the claim must fail.
In Repatriation Commission v Hancock (2003) 37 AAR 383 at 386 Selway J set out the approach to be followed by the Tribunal:
…
(a) First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out…
(b) Next, the AAT was required to determine on balance of probabilities what “kind of death” Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all statement of principles and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death.
(c) If one or more statement of principles were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death".
…
In following the approach laid down in Hancock, the Tribunal finds that the pre‑conditions, other than causation, have been made out because Mrs Handby’s husband was a veteran, the veteran has died and Mrs Handby is his widow. In relation to a determination of the kind of death suffered by the veteran (step (b)), the Tribunal notes that the death certificate and medical evidence state that the causes of death were mesothelioma and bronchopneumonia.
WAS MESOTHELIOMA WAR-CAUSED?
On the basis of the death certificate and the relevant medical evidence, the Tribunal is reasonably satisfied that the kind of death suffered by the veteran includes mesothelioma, which is identified in SoP Instrument N° 52 of 1994 as amended by Instrument N° 199 of 1995. Factor 1(a) states:
1(a) being exposed to respirable asbestos fibres in an enclosed area when such fibres were:
(i) applied; or
(ii) removed; or
(iii) dislodged; or
(iv) cut; or
(v) drilled,
at least ten years before the clinical onset of mesothelioma.
As there are SoPs in force, the Tribunal is required to apply the methodology in Deledio to the kind of death. In respect of the first step, the Tribunal notes that in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 the High Court of Australia held:
The material will raise a reasonable 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 regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran.
In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-570 the High Court stated:
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell Mason CJ, Deane and McHugh JJ said:
"(A) hypothesis cannot be reasonable if it is 'contrary to proved scientific facts or to the known phenomena of nature((5) Commissioner for Government Transport v. Adamcik(1961)106 CLR 292 at p 306.)'. Nor can it be reasonable if it is 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous' ((6) East v. Repatriation Commission (1987) 16 FCR 517, at p 532.)."
The Tribunal is mindful that at 570 the Court stated:
In some cases the hypothesis may assume the occurrence or existence of a “fact”. That itself does not make the hypothesis unreasonable.
However this is not such a case. The veteran's son, an environmental health officer, discussed with the veteran the possible sources of exposure to asbestos, but was unsuccessful in identifying a source, despite efforts to eliminate possibilities such as residences and buildings occupied by the veteran in the course of his employment after service. The veteran’s general practitioner could not identify a source, and in the absence of any explanation suggested that building materials used at some military bases might have contained the substance. Mrs Handby was unable to suggest any source of asbestos and confirmed that the veteran had told her that he was not aware of any exposure to asbestos. Mr Piper was unable to determine whether exposure to asbestos occurred in any building or environment to which the veteran had access during operational service. The possibility that buildings in the Philippines or cigarette filters contained asbestos is pure speculation.
Although symptoms of mesothelioma may occur decades after exposure to asbestos, the Tribunal concludes, after assessing the material as a whole, that the evidence is highly speculative and is based largely on attempts to eliminate possible sources of asbestos. For these reasons the Tribunal concludes that there is no identifiable basis to connect exposure to asbestos by the veteran with any aspect of his service. Consequently the hypothesis connecting mesothelioma to the veteran's war service is not tenable, is too remote or is too tenuous, and does not raise facts which give rise to the hypothesis, so the hypothesis is not reasonable. For these reasons Step one of Deledio is not met and the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s death in respect of mesothelioma was related to his service.
DID ISCHAEMIC HEART DISEASE AND/OR OBSTRUCTIVE AIRWAYS DISEASE CONTRIBUTE TO THE VETERAN’S DEATH?
In relation to a determination of the kind of death suffered by the veteran with respect to bronchopneumonia, the Tribunal notes that in Doolette v Repatriation Commission (1990) 21 ALD 489 the Federal Court of Australia (per O’Loughlin J) at 490 stated:
…If death is hastened because of the accelerated progress of a disease and that acceleration was itself caused by a war-related condition, death would be attributable to service.
In Repatriation Commission v Law (1980) 31 ALR 140 the Full Federal Court stated, in respect of “attributable to” (s 8(1)(b) of the Act) at 151:
It seems clear that 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 providing it is a contributing cause.
In Roncevich v Repatriation Commission [2005] HCA 40 the majority in the High Court held (at para 27):
A causal link alone or a causal connexion is capable of satisfying a test of attributability without qualifications conveyed by such terms as sole, dominant, direct or proximate.
Professor Cade, supported by Dr Pitt and Dr Hart, concluded that ischaemic heart disease was unlikely to have contributed to the death of the veteran, with Dr Pitt saying that there was no evidence to support the possibility of a contribution by ischaemic heart disease. Dr Jenkinson referred to the possibility that pre-existing cardiac problems and smoking may have hastened the veteran's death, while Dr Collins said that there was a reasonable possibility that the smoking-related lung and cardiac diseases suffered by the veteran hastened his demise.
However Professor Cade also agreed with Dr Hart that any potential contribution to the veteran's presumed terminal bronchopneumonia by any chronic obstructive airways disease may have hastened the veteran’s death, although only by a brief amount of time. The Tribunal also gives considerable weight to the evidence from Dr Haslau that chronic obstructive lung disease and ischaemic heart disease significantly contributed to the veteran’s death from bronchopneumonia. Dr Haslau is a general practitioner who had treated the veteran for many years and who demonstrated a clear insight to the conditions suffered by the veteran over that period.
On balance the Tribunal concludes that the views expressed by Dr Haslau, Dr Jenkinson and Dr Collins are reasonable and are supported by the evidence of Mrs Handby, a qualified nurse as well as an attentive wife, and Professor Cade in relation to the hastening of the veteran’s death. For these reasons the Tribunal finds, on the balance of probabilities, that ischaemic heart disease and/or obstructive airways disease were factors relevant to the kind of death. Consequently SoPs and the methodology in Deledio are applicable. As conceded by the respondent at the hearing, because ischaemic heart disease is a condition accepted during the veteran’s life as war-caused, such a finding would result in Mrs Handby satisfying the steps in Deledio. For these reasons the application succeeds.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the veteran’s death was war-caused and Mrs Handby is entitled to be granted widow’s pension with effect from 25 November 2003.
I certify that the thirty-four [34] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Lydia Zozula
Associate
Dates of hearing: 2 November 2006, 20 December 2006
Date of decision: 16 January 2007Counsel for applicant: Mr A. Larkin
Solicitor for applicant: Williams Winter
Advocates for respondent: Mr R. Douglass (2 November 2006), Mr K. Herman (20 December 2006)
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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