Harmer and Repatriation Commission (Veterans' entitlements)

[2017] AATA 655

Harmer and Repatriation Commission (Veterans' entitlements) [2017] AATA 655 (12 May 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2015/5386

Re:Beryl Harmer

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Regina Perton, Member

Date:12 May 2017

Place:Melbourne

The Tribunal affirms the decision under review.

...........................[sgd].............................................

Regina Perton, Member

VETERANS’ ENTITLEMENTS ‑ widow’s pension ‑ eligible war service – kind of death ‑ whether Statement of Principles met – alcohol consumption – causal or temporal connection with service – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 34J

Veterans’ Entitlements Act 1986 ss 8(1), 119(1), 120(4), 120B, 196, 196B(14)

CASES

Christopher Lloyd Walmsley v Repatriation Commission [1997] FCA 703

Re Gillman and Repatriation Commission (1993) 30 ALD 545

Repatriation Commission v Tuite (1993) 39 FCR 540

Repatriation Commission v Gorton (2001) 110 FCR 321

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

Regina Perton, Member

12 May 2017

1. William George Harmer died on 25 March 1975 from a cerebral haemorrhage at the age of 48 years.  He served in the Australian Army (the army) from 16 November 1944 to 10 December 1946.  He did not serve outside Australia.  His service is treated as eligible war service for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act).

2. Mrs Harmer lodged a claim for a widow pension on 8 October 2014 (the 2014 claim). The Repatriation Commission (the respondent) refused the claim on 23 October 2014 on the basis that Mr Harmer’s death was not the result of service-related disabilities.  On 28 July 2015 the Veterans’ Review Board (VRB) affirmed the decision.  Mrs Harmer lodged an application for review with the Tribunal on 15 October 2015, claiming that Mr Harmer’s death was caused by exposure to traumatic events at Kapooka Army Camp on 21 May 1945 in which 26 soldiers were killed in an explosion (the explosion event), which caused him to drink alcohol, resulting in hypertension which in turn caused an intracerebral haemorrhage and subsequent death.

3. Under s 34J of the Administrative Appeals Tribunal Act 1975, and with the consent of the parties, the Tribunal decided to review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.  

   ISSUES

4. The issues before the Tribunal are the kind of death and whether Mr Harmer’s death was related to his service.

   Kind of death

5. The death certificate dated 7 April 1975 recorded that the cause of death was cerebral haemorrhage.  A report by the New South Wales Coroner dated 26 March 1975 recorded that the cause of death was cerebral haemorrhage that had occurred 24 hours previously.

6. In a report dated 21 June 2016 Professor R Harper, consultant & intervention cardiologist, concluded after reviewing relevant documents that Mr Harmer died of a large intracerebral haemorrhage and the most likely cause was hypertension.  He said that the clinical onset of hypertension was 10 February 1975 when an elevated blood pressure reading was recorded.

7. In a Report by a medical practitioner on the death of a member of the forces prepared in connection with a claim for widow pension lodged by Mrs Harmer in 1984 (the 1984 claim), the author noted that In this case, the most likely cause of Intracerebral Haemorrhage is Essential Hypertension of recent origin. The report states:

   Alcohol

   There is a 20-30% increase incidence of heavy drinking in “essential hypertension”.

   In this case, there is absolutely no record of alcohol consumption on file.

   …

8. The parties agreed, and the Tribunal accepts, that the kind of death was intracerebral haemorrhage caused by hypertension.

   LEGISLATIVE BACKGROUND

9. Section 8(1) of the VE Act provides:

   (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:

   …

   (b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

   …       

10. Section 120(4) of the Act provides that the standard of proof to be applied as to whether the death arose out of, or was attributable to, any eligible war service is that of reasonable satisfaction i.e. on the balance of probabilities.

11. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act. That means that where there is a Statement of Principles (SoP) formulated by the Repatriation Medical Authority under s 196 of the VE Act, the Tribunal must apply that SoP in deciding whether there is a connection between Mr Harmer’s eligible war service and the disease that led to his death.

12. For the purposes of formulating the SoPs, the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence of the necessary connections between service and the injury or disease in accordance with generally accepted medical practice for the diagnosis and management of a medical condition. Section 196B(14) of the VE Act states:

    (14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

    …

    (b)       it arose out of, or was attributable to, that service; or

    …

    (d)it was contributed to in a material degree by, or was aggravated by, that service; or

    …

    Relevant Statements of Principle

13. The relevant SoP for cerebrovascular accident is SoP No. 66 of 2015 and defines the condition to include intracerebral haemorrhage.  In accordance with the decision of the Full Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321 the Tribunal must apply the SoP in force at the date of its decision. If the requirements of that SoP are not met, the Tribunal can then consider other SoPs that were current at the time of lodgement of the claim.

14. The factors that can lead to death from cerebral haemorrhage are set out in SoP No. 66 of 2015.  The relevant risk factors in paragraph 6 are:

    (a)having hypertension within the five years before the clinical onset of cerebrovascular accident;

    …

    (d)drinking an average of at least 300 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident;

    …

15. The SoP that was in force at the time of the respondent’s decision is SoP No. 52 of 2006 concerning cerebrovascular accident.  The relevant risk factors in paragraph 6 are:

    (a)having hypertension at the time of the clinical onset of cerebrovascular accident; or

    …

    (c)drinking an average of at least 300 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident;

1. The parties agreed, and the Tribunal accepts, that Mr Harmer was suffering from hypertension at the time of clinical onset of cerebrovascular accident on 24 March 1975; drank an average of at least 300 grams of alcohol per week for at least the one year before the clinical onset of cerebrovascular accident; and consumed an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension on 10 February 1975.

2. The respondent conceded, and the Tribunal accepts, that there is a temporal relationship between Mr Harmer commencing to drink alcohol and his eligible service.

   IS THERE A CAUSAL RELATIONSHIP BETWEEN MR HARMER’S ALCOHOL CONSUMPTION AND HIS ELIGIBLE SERVICE?

3. In documents submitted to the Tribunal Mrs Harmer stated that she met Mr Harmer in 1952 and they married on 19 November 1955.  He had been married previously and had one son from that marriage. 

4. In the 1984 claim Mrs Harmer stated that Mr Harmer …always told me that after he enlisted in the army he desperately wanted to go to New Guinea to join his older brother.  She said that this never took place and Mr Harmer worried constantly about it, eventually taking up smoking a pipe while on service and the anxiety caused peptic ulcers after his discharge.  She said that he had given up smoking a pipe before she met him in 1952.  She also referred to a truck accident while on service that left Mr Harmer with back and neck problems that led to stress and frequent headaches that she observed.

5. In a further claim for widow pension lodged by Mrs Harmer in June 2006 (the 2006 claim) Mrs Harmer stated on 3 June 2006 that Mr Harmer …during his service had requested that he be allowed to join his brother in New Guinea but this was not allowed. She stated that he pushed himself no matter what the task and developed high blood pressure.  Mrs Harmer stated in the claim form that Mr Harmer undertook training at Kapooka army camp near Wagga Wagga in New South Wales and …was there and just left the area when one lad blew himself up in grenade training.  He witnessed this and it effected him - he always remembered.  On 28 June 2006 she stated that Mr Harmer suffered from peptic ulcer while in the army, and never drank or smoked until his army service.

6. In the 2014 claim Mrs Harmer stated that Mr Harmer began drinking alcohol on 19 July 1945 and that the amount of alcohol consumed increased markedly on 9 November 1955 to eighteen 750 ml bottles of beer per week [d]ue to recalling accidental death in 1945 in the army and more at weekends at the bowling club.   She referred to the explosion event and said:

   It is always my recollection during his training at Kappooka Army (sic) he witnessed an accident with fellow soldiers being accidentally killed with a live explosive it is my understanding and through our married life since 1955 it affected him significantly including not be allotted to the tail end of the war to serve with his older brother.  The accidental killing of this young soldier had a significant impact on Bill and to ease the burden he began to drink alcohol because of that incident and continue on until he died on 25/3/1975.     

7. In an Impact Statement submitted to the VRB in March 2015 Mrs Harmer stated:

   Never a day went by when my late husband would [not] remind himself of what occur on that horrific day in May 1945 at Kapooka Army Training Centre.

   I am certain that was the reason for him drinking around 18 Tallies Bottles of Beer per week at home after work… I believe his alcohol-related hypertensive related intracerebral haemorrhage death 25 March 1975 was the result of what occur on the 21 May 1945, of the explosion killing 26 soldiers having a significant effect on my husband’s health…     

8. In a report for Writeway Research Service Pty Ltd (Writeway) dated 21 May 2015 Major I Hawke RAINF Retd. confirmed that Mr Harmer was posted to Kapooka Army Camp with 1 RAE TRG BN (Royal Australian Engineers Training Battalion) on 31 January 1945 for basic engineer corps training and was with that unit on 21 May 1945 when 26 soldiers were killed during demolitions training.  Mr Harmer was posted out of the training battalion on 4 July 1945.  Major Hawke stated that all available soldiers in the unit would have been quickly mustered and rushed to the explosion site to help with the evacuation of casualties.  He added that the trainees would have helped with the remediation of the site after the incident, and all available unit members would have participated in the large public funeral procession and service held in Wagga Wagga.  Major Hawke conceded that the available records do not indicate how close Mr Harmer was to the explosion.

9. In a supplementary report dated 1 October 2015 (commissioned by Mrs Harmer‘s representative after the VRB decision) Major Hawke noted that the VRB had relied on an academic paper into the explosion event carried out by Dr P Rushbrook of Sturt University, who concluded that there were four engineer training battalions consisting of 960 trainees each, under what was known as the RAETC program 1.  Major Hawke stated that Dr Rushbrook did not document relevant dates and the detailed structure of the various RAE training units at Kapooka at the time of the explosion event, and the structure involving 960 trainees was a draft establishment proposal that was never adopted by the army, particularly as the proposal was dated 14 August 1945 (the date of the end of the war with Japan and after the explosion event) and was not relevant to post-war needs of the army.

10. Major Hawke said that the War Establishment for 1RAE Training Battalion in May 1945 was 208 personnel of all ranks, but the number of personnel actually present for training on any day should be discounted by 10 per cent to make allowance for absences due to illness, leave or duties elsewhere.  He concluded that, putting aside the 10 per cent for those absent, about 68 of the unit would not have been deployed to the rescue effort, leaving about 140 who were likely to have been involved, less the 28 casualties, so that the number of potential rescuers was about 112, suggesting that the likelihood of Mr Harmer being involved was much higher than an assessment based on the 960 trainees in each of four battalions as claimed by Dr Rushbrook.  Major Hawke stated that in addition to Mr Harmer’s probable involvement in the immediate rescue and recovery task, he would certainly have been involved in the military funeral in some capacity.             

11. In Roncevich v Repatriation Commission (2005) 222 CLR 115 the High Court of Australia noted that the link between alcohol consumption and service did not have to be the sole, dominant or direct connection. In Repatriation Commission v Tuite (1993) 39 FCR 540 the Full Federal Court held that, for the purposes of establishing that there was a causal link between a disease or injury and service, the question was whether life in camp was a contributing cause and not merely the setting in which the event occurred.

12. In Christopher Lloyd Walmsley v Repatriation Commission [1997] FCA 703 Whitlam J held that whether ingestion of alcohol could be found on the balance of probabilities to arise out of or be attributable to army service was a question of fact in a particular case.

13. Mrs Harmer met Mr Harmer in 1952 and has no direct knowledge of his drinking habits before or during his eligible service.  The Tribunal takes into account that in the 1984 claim Mrs Harmer listed a truck accident and the stress of Mr Harmer not being able to join his brother in New Guinea as stressful events, but that neither was said to have led to Mr Harmer drinking alcohol.  In the 2006 claim she again referred to the refusal to allow him to join his brother, and that he always pushed himself. She mentioned an incident at Kapooka, but it involved one young soldier who blew himself up in grenade training, rather than the explosion event.  She mentioned that he never smoked or drank until in services but was not specific about the cause of the drinking.

14. In the Alcohol Questionnaire for the 2014 claim Mrs Harmer stated that the accidental death of a young soldier in a grenade accident had a significant impact on Bill and to ease the burden he began to drink alcohol because of that incident and continue on until he died on 25/3/1975.  However in the Alcohol Questionnaire she stated that he commenced drinking on 19 July 1945, two months after the explosion event, but does not provide any explanation of why she attributed that date to the commencement of his drinking, particularly as she did not know him at the time.  Further, Mrs Harmer stated in the Alcohol Questionnaire that the amount of alcohol that Mr Harmer consumed changed significantly on 9 November 1955 to 18 bottles of beer per week Due to recalling accidental death in 1945 in the army.  However this date is ten days before their wedding, and there is no explanation of the reason for a significant increase in drinking on that day, which is more than ten years after the explosion event and the claimed death of the young soldier.

15. With respect to the explosion event, the Tribunal takes into account the reports from Writeway which stated that all available personnel would have helped in some way through assistance at the time or afterwards.  The Tribunal notes in the supplementary Writeway report that the author questioned the estimate by Dr Rushbrook of the number of personnel in the training unit at the relevant time and concluded that there were fewer soldiers present at Kapooka, thus increasing the likelihood that Mr Harmer would have been involved in some capacity.

16. Even if the Tribunal accepts this conclusion there is no persuasive material that supports Mrs Harmer’s assertion in the 2014 claim that Mr Harmer witnessed the explosion event or that this contributed to him taking up drinking on 19 July 1945.  There is no explanation for her failure to include this in the 1984 or 2006 claims.        

17. For these reasons the Tribunal is not satisfied that there is anything more than a temporal link between Mr Harmer’s alcohol consumption and his eligible war service.  It is not reasonably satisfied on the available material that there is a causal connection between his alcohol consumption and his eligible war service.  Therefore Mr Harmer’s death from intracerebral haemorrhage did not arise out of, or was attributable to, his eligible service.

18. The Tribunal takes into account the beneficial nature of the VE Act and the passage of time (s 119(1) of the VE Act). However, as was pointed out in Re Gillman and Repatriation Commission (1993) 30 ALD 545, s 119(1) does not allow the Tribunal to treat a lack of evidence as evidence favourable to an applicant.

    DECISION

19. The Tribunal affirms the decision under review.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member

............................[sgd]............................................

Associate

Dated: 12 May 2017

Date of Hearing on the Papers:	14 December 2016
Advocate for the Applicant:	Mr R Embleton, Geelong RSL
Advocate for the Respondent:	Mr K Rudge
Solicitors for the Respondent:	Department of Veterans' Affairs