Handley and Repatriation Commission (Veterans' entitlements)

[2017] AATA 270

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)  No: 2015/4769

Veterans' Appeals Division  )

Re: Barbara Handley

Applicant

And: Repatriation Commission

Respondent

DIRECTION

TRIBUNAL:              Deputy President Dr P McDermott RFD

DATE:   13 March 2017

PLACE:                    Brisbane

The Tribunal DIRECTS the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1.at page 1 in the decision paragraph replace the date 17 February 2015 with the date 11 October 2014; and

2.at page 17 paragraph 57 replace the date 17 February 2015 with the date 11 October 2014. 

...................................................................
  Deputy President

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2015/4769
Veterans' Appeals Division  )

Re: Barbara Handley
Applicant

And: Repatriation Commission
Respondent

DIRECTION

TRIBUNAL:              Deputy President Dr P McDermott RFD

DATE:   2 March 2017

PLACE:                    Brisbane

The Tribunal DIRECTS the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the paragraph titled ‘CATCHWORDS’ that appears at the second page of the decision as follows:

VETERANS’ AFFAIRS – veteran deceased – claim for compensation by war widow – veteran’s accepted war-caused conditions of posttraumatic stress disorder and sensorineural hearing loss – hypothesis connecting the death of the veteran with the circumstances of the service rendered – whether veteran's war-caused conditions caused him to not adequately respond to the presence of a motor vehicle which struck and killed him – decision under review set aside and substituted – war widow pension granted.

.......................................................

Deputy President

Handley and Repatriation Commission (Veterans' entitlements) [2017] AATA 270 (28 February 2017)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2015/4769

Re:Barbara Handley

APPLICANT

AndRepatriation Commission

RESPONDENT

Decision

Tribunal:Deputy President Dr P McDermott RFD

Date:28 February 2017

Place:Brisbane

I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension with effect from 17 February 2015.

................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – veteran deceased – claim for compensation by war widow – hypothesis connecting the death of the veteran with the circumstances of the service rendered – Statement of Principles concerning Diabetes Mellitus (Instrument No. 89 of 2011 as amended by Instrument No. 27 of 2016) in force – Statement of Principles does not uphold a hypothesis that the diabetes condition is related to service – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 5E, 6, 7, 8, 13, 14, 120, 120A, 196B

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82

Byrnes v Repatriation Commission (1993) 177 CLR 564

Bushell v Repatriation Commission (1992) 175 CLR 408

Repatriation Commission v McKenna (1998) 52 ALD 72

Repatriation Commission v Hancock [2003] FCA 711

Forrester v Repatriation Commission [2013] FCA 898

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

28 February 2017

INTRODUCTION

1. On 17 February 2015 Mrs Barbara Handley (“the applicant”) lodged a claim for a war widow’s pension.[1] She was a dependent of the late Mr Alfred Handley (“the veteran”) who served in the Australian Army. The applicant claims that the death of her husband was war-caused. I give my reasons why I consider that the applicant should be accorded recognition as a war widow.

   [1] Exhibit A, T-Docs, T9 at p. 55-64

   SERVICE OF VETERAN

2. The veteran rendered distinguished service to Australia. The service of the veteran in the Australian Army included a number of periods of operational service: Far East Strategic Reserve (1955-1956, 1957-1959); Malaysia (1964); Brunei, Sabah and Sarawak (1965) and Vietnam (1967-1968, 1970-1971).[2]

   [2] Exhibit A, T-Docs, T5 at p. 15

   ACCEPTED CONDITIONS

3. The veteran had the following conditions accepted as war-caused: posttraumatic stress disorder; sensorineural hearing loss; osteoarthrosis of the knees and solar skin damage.[3]

   [3] Ibid at p. 16-17

   PRIOR DECISIONS

4. On 12 March 2015 a delegate of the respondent rejected her claim.[4] On 27 July 2015 the Veterans’ Review Board (“VRB”) affirmed the decision of the delegate.[5] The applicant now seeks review of the decision by this Tribunal.

   [4] Exhibit A, T-Docs, T9 at p. 66-69

   [5] Exhibit A, T-Docs, T2 at B2-B10

   LEGISLATION

5. Section 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service. Section 6 of the Act provides the requirements for operational service.

6. Section 8 of the Veterans' Entitlements Act 1986 (Cth) (“the Act”) provides for when the death of a veteran is taken to be war-caused. Relevantly, this provision applies where, under s 8(1)(b) of the Act, “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.

7. Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.

8. Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1)(c) of the Act provides that the term “dependant” is defined to include a “widow”.

9. Section 5E(1) of the Act defines a “war widow” to include a woman who was legally married to a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran.

10. As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying subsections 120(1) and (3) of the Act.

11. Subsection 120(1) of the Act provides that where a claim for a pension:

    …in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

12. Subsection 120(3) of the Act also provides:

    (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

    (a) that the injury was a war-caused injury or a defence-caused injury;

    (b) that the disease was a war-caused disease or a defence-caused   disease; or
               (c) that the death was war-caused or defence-caused;

    as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

    STATEMENT OF PRINCIPLES

13. Section 196A of the Act provides for the establishment of the RMA which is an independent medical body that issues Statements of Principles (“SoP”) based on sound medical-scientific evidence. The SoP sets out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.

14. Section 196B(2) of the Act provides that if the RMA:

    … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

    (a) operational service rendered by veterans; or

    the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

    (d) the factors that must as a minimum exist; and

    (e) which of those factors must be related to service rendered by a person;

    before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

15. A SoP is binding on the respondent and various review bodies, including this Tribunal.  However, after reviewing the material before me I have concluded that there is no relevant Statement of Principles which is in contention.

    CORONIAL INVESTIGATION

16. A coronial investigation was held into the death of the veteran.[6] A Traffic Incident report was before the coroner.[7]

    [6] Exhibit A, T-Docs, T12 at p. 79-81

    [7] Exhibit A, T-Docs, T6 at p. 39-46

17. One witness remarked[8]:

    I was standing on the 4th floor balcony of unit 461 of BreakFree resort and saw the whole thing. The cars were stopped at the traffic lights at Pacific Tce. The pedestrian in the red jacket was carrying a white bag. He started crossining (sic) the road from about the Cold Rock, I saw him look as he started to cross, then he did not look again, he was looking down at his bag. He was dawdling and walking more slowly than you would if you were crossing the road. I saw two lines of traffic start to move from the lights. I saw the green ute in the inside land near the median strip. I did not see the ute slow.  I thought the pedestrian would get hit, he did not look up at the traffic.

    [8] Ibid at p. 44-45

18. Christopher James Knevett, a taxi driver, remarked[9]:

    I pick (sic) up a fare from the Alex Surf club at 1749 hours. A few minutes before this I nearly hit an elderly male in a red jumper holding a chips container. He appeared to be in a daze. Walking south through the car park.

    [9] Ibid at p. 43

19. On 17 January 2015 the coroner made the following findings in respect of the death of the veteran[10]:

    At the time of his death, Alfred Frederick James Handley was attempting to cross Alexandra Parade, Alexandra Headlands in a westerly direction.

    Travelling on Alexandra Parade were two vehicles, each going in a northerly direction. Alfred Handley stepped out onto the road holding a packet of fish and chips in front of him, avoiding one vehicle when it became apparent to witnesses he had not seen the second vehicle a green utility, travelling beside it. The green utility collided with Alfred Handley which caused him to land on his back on the roadway, hitting his head with great force.

    Witnesses to the incident state that both vehicles were doing the same speed at the time of the crash and that Alfred Handley had in fact walked into the path of the oncoming vehicle which collided with him. The driver of the green utility stated he did not see Alfred Handley until he heard the crash on his windscreen.

    QAS attended and Alfred Handley was declared deceased.

    MEDICAL EVIDENCE

    Professor McFarlane, psychiatrist

    [10] Exhibit A, T-Docs, T12 at p. 80

20. Professor McFarlane, psychiatrist, made two reports dated 30 June 2015[11] and 4 March 2016[12]. These reports are in evidence. In his reports Professor McFarlane opines that at the time of the accident the veteran had an impairment of attentional processing, target detection and reaction time that contributed to his failure to effectively judge the risk and presence of approaching traffic. Professor McFarlane stated he considers that this was the case on the balance of probabilities.[13]

    [11] Exhibit A, T-Docs, T12 at p. 87-91

    [12] Exhibit B, Report of Professor Alexander McFarlane AO dated 4 March 2016

    [13] Ibid at p. 7-8

21. Professor McFarlane has reported upon the substantial literature about the impairment of working memory in attentional processing in cases of post-traumatic stress disorder. Professor McFarlane considers that because of the veteran suffering from post-traumatic stress disorder at the time of the accident, he would have at the time suffered from significant information-processing deficits which are likely to have contributed to the major error of judgment on his part in anticipating the risk of passage in front of the vehicle that led to his death.[14]

    [14] Ibid at p. 8

22. Professor McFarlane also considers that because he was suffering from post-traumatic stress disorder, the veteran had a significant neurocognitive impairment in responding appropriately to his presence on the road and the accelerating traffic.[15] Professor McFarlane in considering the veteran’s psychiatric history opined that at the time of his death he had an impairment of his capacity to detect and respond to the traffic on the road. This was above and beyond his auditory impairment, which would have had the effect of multiplying the impairment arising from his PTSD.[16]

    [15] Exhibit B, Report of Professor Alexander McFarlane AO dated 4 March 2016 at p. 8

    [16] Ibid

23. In giving evidence before the Tribunal, Professor McFarlane stood by the opinions in his reports and explained in his oral evidence how the hearing difficulties of the veteran would have aggravated his attentional deficits and concentration. Professor McFarlane remarked:

    The difficulty with hearing aids is they can amplify all of the noise in the environment, rather than selectively, the information relevant, such as the human voice. So, the hearing aid, whilst of benefit, often actually also creates difficulties because of this general increase of ambient sound. So, one of the challenges of somebody wearing a hearing aid is to then, using the secondary mechanism that allows focus and attention, have to code the information that a hearing aid provides. So, somebody with post-traumatic stress disorder who has difficulty in coding auditory information, as I've described, will be at some disadvantage because of wearing a hearing aid compared with somebody who didn't have post-traumatic stress disorder.

    So, it's an aggravating factor in terms of the effect that you described earlier in terms of attentional deficits and concentration deficits?--- Yes.

24. Professor McFarlane’s curriculum vitae contains the citations of 334 publications to which he has made a contribution.[17] When he was cross-examined he was asked about a number of those publications; he regarded publication numbers 246, 259 and 275 as significant.

    [17] Exhibit B, CV of Professor Alexander McFarlane AO

25. Publication no. 246 is entitled “Event-related Potential to Auditory Stimuli in Monozygotic Twins discordant for Combat: Association with PTSD”.[18]  This study related to a set of identical twins where one twin had been exposed to a severe conflict whilst the other twin did not have this exposure. Professor McFarlane regarded this study as important because it showed that an information processing deficit of the exposed twin is a consequence of developing PTSD in a combative environment. Professor McFarlane regarded this as relevant to the case of the veteran.

    [18] Exhibit B, CV of Professor Alexander McFarlane AO at p. 27

26. Publication no. 259 is entitled “Switching between executive and default mode networks in posttraumatic stress disorder: Alterations in functional connectivity”.[19] Professor McFarlane said that this is an important paper because it highlighted the difficulty that people with post-traumatic stress disorder have in switching from a relevantly unattended state into a state where they have got to actively attend to incoming stimuli. Professor McFarlane remarked that the study was pertinent to somebody who is walking along the road and then making the decision to cross the road, and having to then be more attentive to their environment.

    [19] Ibid at p. 28

27. Publication no. 275 is entitled “Default Network Connectivity during the Working Memory Task.”[20] Professor McFarlane remarked that the study related to people with post-traumatic stress disorder who when attending to a task were required to review emerging information in their environment. He remarked that the study showed that people with post-traumatic stress disorder had a less efficient activation of the networks that are normally engaged in that activity and so had an inefficient information processing system.

    [20] Ibid at p. 29

28. In his report of 4 March 2016 Professor McFarlane referred to the statement by the witness before the coroner whose name was redacted and put forward that the statement would suggest that the veteran did not anticipate or react to the forthcoming traffic.[21] Professor McFarlane remarked that this could be explained by several hypotheses. The first hypothesis is that he did not hear the approaching traffic and respond in the appropriate self-defence manner. The second hypothesis is that the veteran had underlying difficulties with concentration and attention which meant that he did not respond appropriately to the perceived stimuli as a consequence of the underlying attentional problems associated with posttraumatic stress disorder.  Professor McFarlane’s final hypothesis is that there could be an interaction between these deficits, increasing the probability of the veteran not perceiving the oncoming traffic and taking the appropriate self-protective actions.[22]

    [21] Exhibit B, Report of Professor Alexander McFarlane AO dated 4 March 2016 at p. 5

    [22] Exhibit B, Report of Professor Alexander McFarlane AO dated 4 March 2016 at p. 5

29. In his report of 4 March 2016 Professor McFarlane referred to the observations made by the applicant about how the veteran was “detached and away with the birds in the presence of friends and family”. Professor McFarland stated that the observations suggest that the veteran was in a dissociative state or preoccupied with traumatic memories at this time.[23] In his report Professor McFarlane had commented upon the fact that the applicant had referred to the nightmares which had intensified in the months prior to the death of the veteran who was preoccupied with the death of a trooper who had been struck on the head by helicopter blades.[24] Professor McFarland also made reference to the veteran’s daughter who had sustained spinal injuries from a fall two months prior[25], stating that the observations of the applicant in the months prior to his death were consistent with the probability that the injuries of the daughter of the veteran had exacerbated his PTSD symptoms.

    Mr Darcy Little, exercise physiologist

    [23] Ibid

    [24] Ibid at p. 5-6

    [25] Ibid at p. 3

30. Mr Darcy Little, exercise physiologist, in his report dated 28 August 2014 remarked:

    “Mr Handley at times appeared to become disorientated and confused which I attest to his requirement of hearing aids”.[26]

    [26] Exhibit A, T-Docs, T6 at p. 29

    EVIDENCE OF RELATIVES AND FRIENDS OF THE VETERAN

31. There was evidence about the veteran from relatives and friends of the veteran.

32. The applicant remarked that in the period of between 12 and 24 months before his death, the veteran became vague, had difficulty remembering details of significant events in his life and appeared to lose confidence and self-esteem[27] and that he had become prone to lengthy periods of becoming detached and “away with the birds”.[28] The applicant remarked that on the day of his death, she had observed that the veteran was in one of his detached states[29] and that it was highly out of character for him to step off the footpath in front of oncoming traffic[30].

    [27] Exhibit C, p. 3 at [8]

    [28] Exhibit A, T-Docs, T12 at p. 82

    [29] Ibid at p. 83 and Exhibit C, p. 4 at [12]

    [30] Exhibit C, p. 5 at [18]

33. Mr Geoffrey Handley, the son of the veteran, remarked that when he visited his father on the weekend prior to his death he saw that his father was not himself. [31] He also remarked that it was totally out of character for the veteran to take a risk such as stepping onto a roadway in the path of oncoming traffic. He stated:

    ……Dad in his whole life was quite - he wouldn't just do things without thinking them through. He was quite precise and clear in his thinking. He didn't take risks. He had too many overseas experiences in his training and stuff to, you know, not do silly things, and talking a lot about not going off the handle or not, you know, being controlled, being - those things. And those - it was clear that - when I got the phone call that somehow he had been taken out in a car accident, I just couldn't believe it. Just couldn't believe it. But (indistinct) couldn't believe it either, but this was so clearly out of character, that that would be - that he would step off the kerb or do something that would be slightly risky.

    [31] Exhibit A, T-Docs, T6 at p. 52

1. Mr Handley believed that the judgment of the veteran was clouded at the time of the accident. He remarked:

   I wasn't there, but certainly after the fact, after the - the shock and thinking it and then reading, you know - the eldest son and having to read all this to try and - all these police reports and things, it was clear that he was in a daze in a way, not thinking. And this is only Friday afternoon, you know, about 6 o'clock or something. It's not that he was tired or something (indistinct) it's just so out of character, but in character for that period of time when he was making the first application, in my view.

2. Mr Allan McLean, a friend of the veteran, had remarked that in the period leading up to the death of the veteran that his mind seemed vague and his speech and attitude would change when he became stressed.[32] Mr Neil Eiby, another friend of the veteran, remarked that the veteran had confided in him that he suffered problems with concentration and balance which caused him to become momentarily confused and that he put this condition down to his hearing problems.[33]

   [32] Exhibit A, T-Docs, T6 at p. 48

   [33] Exhibit A, T-Docs, T6  at p. 47

   CONSIDERATION

3. For the applicant to succeed the evidence must “point to” or “support” the hypothesis and not merely be “left open” as a possibility.  The High Court of Australia held in Bushell v Repatriation Commission (1992) 175 CLR 408 at 416 that a reasonable hypothesis exists where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service”.

4. In Repatriation Commission v McKenna (1998) 52 ALD 72, Goldberg J emphasised at 80 that it is fundamental to any enquiry under section 120 of the Act to identify what is the relevant hypothesis.

5. The hypothesis that is put forward by the applicant is that the Veteran's war-caused conditions of PTSD and hearing loss caused him to suffer from information-processing deficits and a neurocognitive impairment which contributed to him not seeing and/or adequately responding to the presence of the vehicle which struck and killed him.[34]

   [34] Exhibit A, T-Docs, T12  at p. 75-78 and 87-91

6. The Tribunal is required to determine the type of death that is applicable to the veteran, that is, the medical cause or causes of death.  The Federal Court of Australia has held that there may be more than one cause of death (Repatriation Commission v Hancock [2003] FCA at [8]- [9] per Selway J). The Veteran died on 10 October 2014 at the age of 83 years. The causes of his death were certified to be the head and chest injuries.[35]   The Veteran suffered these injuries as a result of being hit by a motor vehicle as he attempted to cross Alexandra Parade, Alexandra Headland.[36] The war-caused conditions of post-traumatic stress disorder and sensorineural hearing loss are put forward as being most relevant for the purposes of the claim.

   [35] Exhibit A, T-Docs, T6 at p. 20 and T12 at p. 81

   [36] Exhibit A, T-Docs, T12 at p. 80    

7. Section 120(1) of the Act requires the Tribunal to make a finding that the death of a veteran was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making such a determination. As a preliminary step, the Tribunal is required to consider whether, ‘after consideration of the whole of the material before it’, it is of the opinion that the material before it raises a reasonable hypothesis connecting the death with the circumstances of the service.

8. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 the Justices of the High Court of Australia, in a unanimous judgement, remarked:

   The position may be summarized as follows: (1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

9. Determining whether a reasonable hypothesis has been made out is a question of fact which requires an assessment of the factual material, but proof of facts and onus of proof are not an issue at this stage of the Tribunal’s consideration.

10. An important element of the hypothesis that is put forward by the applicant is based upon the evidence of Professor McFarlane who considers that the capacity of the veteran to deal with the situation he faced immediately prior to his death was significantly impaired as a result of his auditory loss and his cognitive and concentration difficulties caused by his PTSD.[37]

    [37] Exhibit A, T-docs, T12 at p. 87-91 and Exhibit B, Report of Professor Alexander McFarlane AO dated 4 March 2016

11. The professional standing of Professor McFarlane as currently being the head of the University of Adelaide Centre for Traumatic Stress Studies and other current and past leadership and advisory positions in the fields of psychiatry, veteran’s affairs and trauma, his supervision of research in the field of PTSD as well as the considerable number of publications in this field to which he has made a contribution indicates that he is well qualified to give his opinion.[38] Professor McFarlane was careful not to stray beyond the limits of his expertise. For instance, in his report dated 4 March 2016 he would not express an opinion on whether a person who wears hearing aids does not have their hearing capacity fully restored.[39]

    [38] Exhibit B, CV of Professor Alexander McFarlane AO at p. 1-2, 9-35

    [39] Exhibit B, Report of Professor Alexander McFarlane AO dated 4 March 2016 at p. 1

12. Under cross-examination Professor McFarlane referred to publications nos. 246, 259 and 275.[40] I accept his explanation that those studies provide a basis for his opinion that prior to the veteran’s death he was significantly impaired as a result of cognitive and concentration difficulties caused by his PTSD. His analysis of these publications points to the hypothesis raised. While Mr Little opines that those episodes are related to the use of hearing aids it certainly may well the case that the veteran did suffer from information-processing deficits resulting from PTSD. 

    [40] Ibid at p. 27-29

13. The Traffic Incident report[41] contains statements which point towards the hypothesis. The unnamed witness stated that prior to the death of the veteran he was “dawdling and walking more slowly than you would if you were crossing the road… He did not look up at the traffic”[42]. Another witness, Mr Knevett, remarked that the veteran “appeared to be in a daze” at a time shortly prior to his death.[43] These statements are consistent with the opinion of the Professor McFarlane that the veteran was a person who was suffering information-processing deficits by reason of a neurocognitive impairment by reason of his PTSD condition.

    [41] Exhibit A, T-docs, T6 at p. 39-46

    [42] Exhibit A, T-docs, T6 at p. 45

    [43] Exhibit A, T-docs, T6 at p. 43

14. Professor McFarlane in his report of 30 June 2015 has raised the possibility of the veteran developing dementia.[44] The applicant confirmed that there was such a possibility when giving evidence.  However, I accept the submission of the respondent that the material before me does not raise a diagnosis of dementia so as to apply the SoP for vascular dementia and the SoP for Alzheimer’s dementia.   The respondent pointed out that the clinical records do not reveal that the applicant was investigated for dementia.

    [44] Exhibit A, T-docs, T12 at p. 91

15. One of the matters raised by Professor McFarlane was that the age of the veteran had relevance in his experience of PTSD symptoms. He explained that the inhibitory function plays a very important role in the modulatory systems and there are a significant number of veterans whose symptoms worsen with age because of the loss of that inhibitory function.

16. One of the matters which was raised in argument by the respondent concerned the statistical significance of some studies that were referred to by Professor McFarlane who placed reliance on studies that were published in the Annals of Epidemiology journal.  The respondent submitted that the Boscarino study on posttraumatic stress injury and mortality among US army veterans notes a higher risk from external causes of death which appeared isolated to the first five years after discharge from active duty and that the study did not contain a reliable predictor of risk for motor vehicle accidents alone.[45] The respondent has pointed out that Table 4 in the Watanabe study[46] refers to a motor vehicle relative risk of 1.05 with a confidence interval of 0.76 -1.44.

    [45] Boscarino J. Posttraumatic Stress Disorder and Mortality among U.S. Army Veterans 30 years after military service. Annals of Epidemiology, 2006 April;16(4):248-56.

    [46] Watanabe KK, Kang HK. Military service in Vietnam and the risk of death from trauma and selected cancers. Ann Epidemiol. 1995;5:407-412.

17. The respondent did not wish to respond to the reply of the applicant who submitted that that the evidence of Professor McFarlane did not depend upon the published papers establishing a relative risk of greater than 2 of PTSD causing accidental death. The applicant submitted that Professor McFarlane relied on those papers as indicating a relationship between PTSD and accidental death. In this respect the papers as well as the expertise of Professor McFarlane are sufficient factual material to point to a reasonable hypothesis: Bushell v Repatriation Commission (1992) 175 CLR 408 at 416 (“Bushell”).

18. Spigelman CJ explained in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at page 279 (“Seltsam”) that the concept of relative risk in epidemiological studies is used where it is necessary to make an inference in a case where a causal relationship has to be proved on the balance of probabilities. However, in a case where there is a reasonable hypothesis it is not decisive that a connection has not been proved between the death of the veteran and the circumstances of the veteran’s service: Bushell at 416.

19. Even in a case where it is necessary for a claimant to prove a causal relationship, it is not necessary for the applicant to meet a relative risk of greater than 2. In Seltsam, Spigelman CJ remarked, at 285:

    In Australian law, the test of actual persuasion does not require epidemiological studies to reach the level of a Relative Risk of 2.0, even where that is the only evidence available to a court. Nevertheless, the closer the ratio approaches 2.0, the greater the significance that can be attached to the studies for the purpose of drawing an inference of causation in an individual case.

20. In Seltsam, at page 280-281 Spigelman CJ referred to the Federal Judicial Centre's, Reference Manual on Scientific Evidence where it was recognised that in the United States a plaintiff may satisfy an evidentiary burden if a relative risk of less than 2.0 emerges from the epidemiological evidence. In the Reference Manual on Scientific Evidence the following passage appears: "If genetics can be ruled out in an individual's case, then a relative risk of greater than 1.5 might be sufficient to support an inference that the agent was more likely than not responsible for the plaintiff's disease”.[47] In this context the Watanabe study in referring to a motor vehicle relative risk of 1.05 is not insignificant and supports what the High Court of Australia has referred to as the “relevant causal hypothesis”: Bushell at 413.

    [47] Seltsam at [122]

21. I consider that the material before the Tribunal points to a hypothesis connecting the Veteran’s death with the circumstances of his service. The hypothesis is based upon the accepted PTSD condition of the veteran as rendering him unable to process information to enable him to safely cross the road which caused his death. I consider that the hypothesis is a reasonable hypothesis having regard to the evidence of Professor McFarlane who I regard as an eminent expert on the effect of PTSD on veterans. The High Court of Australia has observed that “the case must be rare where it can be said that a hypothesis based in the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the field of knowledge”: Bushell at 413. The opinion of Professor McFarlane has not been contradicted by any other professional opinion. The hypothesis cannot be regarded as fanciful or not tenable. There is, for instance, no evidence that the driver of the vehicle that ran over the veteran was driving at an excessive speed so that a pedestrian who was acting prudently would have been injured in any event.

22. I am now required under section 120(1) of the Act to consider whether I can be satisfied beyond reasonable doubt that the death was not war-caused. In Forrester v Repatriation Commission [2013] FCA 898, Mortimer J, in discussing the fourth step in Repatriation Commission v Deledio (1998) 83 FCR 82, has referred to “the very high level of satisfaction required to reject a veteran’s claim at [this] stage”. After my review of the evidence I have come to the conclusion that there is no evidence which would enable me to be satisfied beyond a reasonable doubt that the death of the veteran was not war-caused. The respondent has quite properly not made any submission that there is any such evidence.

    CONCLUSION

23. In my opinion the applicant is entitled to a war widow’s pension. Having regard to s 20(2A) of the Act I specify the date of effect as 11 October 2014.

    DECISION

24. I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension with effect from 17 February 2015.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

........................................................................

Associate

Dated: 28 February 2017

Date(s) of hearing:	27 July 2016
Date final submissions received:	12 September 2016
Counsel for the Applicant:	A.C. Harding
Solicitors for the Applicant:	Terence O'Connor Solicitor
Advocate for the Respondent:	B Williams