Harris and Repatriation Commission

[2008] AATA 1025

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1025

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1644

VETERANS' APPEALS DIVISION		)
Re		ANNA-LUISE HARRIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date14 November 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]................

Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – claim for widow’s pension – veteran had operational service with Australian Army – death from cerebrovascular accident – application of Statements of Principles – alcohol consumption – reasonable hypothesis of relevant relationship to eligible war service not raised – death not war-caused – decision under review affirmed.

Veterans’ Entitlement Act 1986 ss 5E, 6A, 7, 8, 11, 14, 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

Bushell v Repatriation Commission (1992) 175 CLR 408

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

Blair and Repatriation Commission [2005] FCA 1076

Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

14 November 2008 Mr R G Kenny, Member     

BACKGROUND

1.      Mr William Julius Henry Harris served in the Australian Army from 20 March 1942 until 16 May 1946.  He died on 13 November 2002 at the age of 79 years.  On 12 September 2007, Anna-Luis Harris, his “widow” and “dependant”, as those terms are defined in s 5E and s 11, respectively, of the Veterans’ Entitlements Act 1986 (the Act), lodged a claim, under s 14 of the Act, for a pension.  This was on the basis that Mr Harris’ death was war-caused under s 8 of the Act.  That claim was rejected by the Repatriation Commission (“the respondent”) on 18 September 2007 and, in turn, by the Veterans’ Review Board (“the Board”) on 4 March 2008.  Mrs Harris seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).

SERVICE

2.      Mr Harris served in the Northern Territory from June 1942 to July 1943 and in the Pacific region on Bougainville from April 1945 to June 1945 and New Britain from June 1945 until May 1946.  Initially, he served with artillery units on anti-aircraft duties but, in October 1945, he transferred to a provost unit.  It is not in dispute that he is a “veteran” and that all of his army service constitutes “eligible war service” in the form of “operational service” in accordance with s 5C, s 7 and s 6A, respectively, of the Act.

ISSUES AND LEGISLATION

3.      In order for the death of Mr Harris to be accepted as being war-caused, one of the requirements in section 8 of the Act must be met.  Relevant in this matter is s 8(1)(b) of the Act which reads:

“s 8 War-caused death

(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)       …

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

4.      Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:

“s 120  Standard of proof

(1)Where a claim under Part II 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.”

5.      The application of that provision is affected by the terms of ss 120(3) and 120A(3) of the Act.  Those provisions read:

“s120 Standard of proof

(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.

s120AReasonableness of hypothesis to be assessed by reference to Statement of Principles

…

(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)       a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.”

6.      The provisions noted above relate to matters of causation and require a consideration of the Statements of Principles published by the Repatriation Medical Authority (RMA).  However, before applying the provisions of the Act relating to causation, the “kind of death” relevant to Mr Harris must be determined.  That is done to the decision-maker’s reasonable satisfaction in accordance with s 120(4) of the Act.  Mr Harris’ death certificate was in evidence.  It is not in dispute and I am satisfied that the kind of death in this matter was that associated with “cerebrovascular accident”.

EVIDENCE

Mrs Harris

7.      Mrs Harris did not attend the hearing but completed a statement on 10 June 2008.  She met and married Mr Harris in 1971.  At that time and until about 2 years before his death, he was in the habit of drinking wine with his evening meal and would consume a 750 ml carafe each time.  He was a trade union official and would attend many meetings at night after which he would return home affected by alcohol.  

8.       A transcript of Mrs Harris’ Board proceedings was in evidence.  There, she gave the following evidence.  Mr Harris was born in Russia and, after his father died, he came to Australia with his mother when he was 17 or 18 years of age.  She said that Mr Harris hardly ever spoke about his war experiences and did not speak at all about what his alcohol consumption pattern was before, during or after the war prior to meeting with her in 1971.  She told the Board that Mr Harris increased his alcohol consumption after 1971.

Other evidence

9.      William Trohear, Robert Anderson and Hugh Hamilton were work associates of Mr Harris.  They completed statements dated, respectively, 30 September 2008, 2 October 2008 and 3 October 2008.  Also in evidence were reports, dated 5 June 2008 and 12 October 2008, completed by Dr Albert Palazzo who described himself as a “Consultant Historian”.  His reports were prepared at the request of Mrs Harris’ solicitor.

10.     Mr Trohear was a long term acquaintance of Mr Harris.  Mr Harris told him about some aspects of his army service including experiencing a Japanese air raid on Darwin.  He was in a gun crew which engaged the enemy aircraft and Mr Harris told him that they lowered the elevation of their guns to a level which caused concern because it raised the prospect of collateral damage. 

11.     Mr Anderson met Mr Harris in about 1955 and was his acquaintance thereafter.  He said that, though Mr Harris did not usually speak about his war-time experiences, he told him about war-crime trials of Japanese army officers that took place at the end of the war and about the subsequent hanging of some of them.  Mr Harris told him that he had no wish to watch the hangings although other army colleagues had done so.  Mr Anderson felt that these events appeared to weigh heavily on Mr Harris.

12.     Mr Hamilton met Mr Harris in 1952 through trade union activities and was his acquaintance for many years thereafter.  He described Mr Harris as a very heavy drinker when they met and for all of the time that he knew him.  He would drink every day and he was aware that, at home, his practice was to drink wine.  Mr Anderson observed him drinking alcohol to excess on many occasions and said that he had a reputation as a heavy drinker.  Mr Harris did not speak to Mr Anderson about his war-time experiences.

13.      Dr Palazzo analysed documentation relevant to Mr Harris’ service while in the army and detailed the places, noted above, where Mr Harris was based.  Initially, Mr Harris was allocated to the artillery as a gunner.  On Bougainville, he was involved in emplacing anti-aircraft guns and test firing these while procedures and protocols were established for the defence of the island.  He was then transferred to Jacquinot Bay on New Britain.  Again, his unit was responsible for anti-aircraft defence.  Dr Palazzo described this as being not a “high risk” area although he referred to operational orders which raised the possibility of enemy attack by sea.  Dr Palazzo identified particular incidents which occurred at the air field to which Mr Harris was posted while he was there.  These comprised two crash landings and a crash on take-off by a plane with a full bomb load.  He attached war diary records of these incidents and advised that there had been no casualties listed.

14.     Dr Palazzo reported that, after the Japanese surrender, Mr Harris was based in Rabaul where approximately 100,000 Japanese prisoners of war were detained.  He said that there was no record of any contact between these and Mr Harris but he considered that Mr Harris would surely have known of their presence.  He described Rabaul as the main centre for the conduct of trials of Japanese accused of committing war crimes against Australian personnel.   He reported that 300 such trials were conducted in the period that Mr Harris was there.  In all, at Rabaul, he said that there were 87 executions, many of which occurred while Mr Harris was there.  Dr Palazzo reported that Mr Harris’ provost unit would have played a part in the procedures surrounding the trials although he was unable to nominate any specific role of Mr Harris.  He noted that Mr Harris left Rabaul on 2 May 1946 on the “Duntroon” and that Japanese prisoners were on that same vessel at the same time. 

Procedure

15.     The procedure to be adopted in determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service the veteran rendered was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 82 - 83 in the following terms:

“(i)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. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

(ii)If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...

(iii)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. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.

(iv)The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused… If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”

Step 1: - Hypothesis

16.     The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service.  Mr Harding submitted that Mr Harris’ cerebrovascular accident resulted from the effects upon his body of alcohol consumption which was related to his war service. I accept that this constitutes an hypothesis of a connection to service.  Mr Harding submitted that no other causal factor, such as hypertension, was relevant to the claim. 

Step 2: - Statement of Principles

17.     The second step requires identification of the relevant Statement of Principles for cerebrovascular accident.  At the date of Mrs Harris’ claim, this was Instrument No. 51 of 2006 and consideration must be given to her claim under that Instrument.

Step 3: - Reasonableness of the Hypothesis

18.     The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of s 120(3) of the Act.  This step is not concerned with proof of the claim.  Rather, it relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act[1]:  This requirement will be met if an hypothesis fits or is consistent with the template provided by a relevant factor and associated definition in the Statement of Principles.  It was common ground that the following factor and definition in the Statement of Principles[2] is relevant to Mr Harris’ circumstances:

“Clause 6

(f)drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident;

…

Clause 9

"alcohol" is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;”

[1]  See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415

[2] Statement of Principles concerning Cerebrovascular Accident, Instrument No. 51 of 2006.

19.     That factor must be related to the relevant service rendered by Mr Harris[3].  If the hypothesis under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps.

[3] See s 196B(2)(d) and (e) of the Act and clause 5 of Instrument No. 51 of 2006 (Statement of Principles concerning cerebrovascular accident).

Mr Harding

20.     Mr Harding submitted that the pattern of alcohol consumption as described by Mrs Harris was sufficient to raise a reasonable hypothesis.  He conceded that there was no direct evidence of Mr Harris’ alcohol consumption pattern at any time before about 1952.  He also conceded that a reasonable hypothesis will not be raised on the basis of mere speculation about that pattern. However, he submitted that there was sufficient factual material in evidence to enable a legitimate inference to be drawn about that pattern. He noted that Mr Harris was 19 years of age when he was taken on strength; that he lived in and enlisted in Brisbane where 21 years was the age limit for drinking in or purchasing alcohol from hotels; that he was drinking alcohol on a very heavy basis by 1952, only 6 years after his discharge; that he had a reputation of being a heavy drinker at that time; and that there were events during his service which could be relied upon as reasons for precipitating alcohol consumption.   Mr Harding also submitted that it was not necessary that all of the amount of alcohol required by the Statement of Principles (i.e. 250 grams per week) to be related to service.  

Mr Thrupp

21.     Mr Thrupp conceded that Mr Harris had consumed the level of alcohol over the period required by the Statement of Principles.  However, he submitted that there was no material which linked his alcohol consumption to his service.  At most, he submitted, the matters advanced by Mr Harding left open the hypothesis but fell short of pointing to it and that, therefore, it was not reasonable.  In particular, he noted that there was no evidence of the presence of any service-related psychiatric condition in Mr Harris which may have caused him to develop his alcohol consumption levels in the time-frames reported by Mr Anderson and Mr Hamilton.

CONSIDERATION  

22.     The material before me in relation to the clinical onset of Mr Harris’ cerebrovascular accident includes reports of his hospitalisation in 1984 and references to the presence of cerebrovascular disease at that time.  That points to clinical onset of the underlying disease process by that time.  The evidence of Mrs Harris points to the threshold level of an average of at least 250 grams of alcohol per week for more than one year before that time. Indeed, as noted above, Mr Thrupp conceded each of those matters.

23.      The remaining aspect of the hypothesis is whether the material points to a relationship between alcohol consumption and Mr Harris’ service.  Relevant material includes Mr Harris being, at the time of enlistment, under the legal age for consuming alcohol in a hotel setting and the presence of heavy alcohol usage in 1952.  Those matters are not disputed and are clearly pointed to by the material before me.  The description of Mr Harris as being a heavy drinker by 1952 does not necessarily point to his service years as being the commencement.  Even if it did, a temporal relationship to service is not sufficient as the material must point to one that is causal in nature. 

24.     There is evidence of Mr Harris’ engagement with the enemy when firing at aircraft when he was in Darwin.  Apart from that, he was involved in emplacing and test-firing anti-aircraft guns on Bougainville; in anti-aircraft defence at Jacquinot Bay on New Britain where three non-fatal aircraft accidents occurred; in being in Rabaul where a large number of Japanese prisoners of war were detained, where trials were conducted and executions were carried out; and in embarking from Rabaul on a vessel which also carried prisoners of war.  Mr Trohear described Mr Harris as telling him that the situation in Darwin caused him some concern.  Mr Anderson’s statement suggests that the executions appeared to weigh heavily on Mr Harris although, as I understand his statement, Mr Harris told him that he did not witness them.  There is no material before me in relation to whether Mr Harris witnessed any of these crashes or, if he did, in relation to his feelings concerning them.  Similarly, there is no such material in relation to his association with Japanese prisoners of war.

25.     Mr Harding submitted that those matters enable a legitimate inference to be drawn that Mr Harris commenced consuming alcohol during and because of his service.  In Caswell v Powell Duffryn Associated Collieries Ltd[4], cited by Mr Harding, Lord Wright referred to the need to distinguish drawing inference, on the one hand, and conjecture or speculation, on the other, saying that:

“There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish……but if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.[5]”

[4] [1940] AC 152.

[5] Ibid at 169-170.

26.     Clearly, this third stage, testing the reasonableness of an hypothesis, does not involve proof of facts but, rather, a consideration of whether relevant facts in the material point to the factor in the Statement of Principles.  The only objective fact about consumption of alcohol is that Mr Harris was a heavy drinker in 1952.  While the facts show that Mr Harris was under 21 years of age on enlistment, they do not necessarily point to his being a non-consumer of alcohol at that time.  That requires speculation.  That is also the case for whether there was alcohol consumption during service as well as whether any such consumption was causally related to any aspect of that service.  Mr Harris was described as expressing concern when firing anti-aircraft guns in Darwin.  He was described in terms that the executions in Rabaul, which he did not witness, appeared to weigh heavily on him.  Those matters do not enable me to infer that they would cause him to consume alcohol and to continue to do so in post-service years.  To do so would be to raise the hypothesis on mere speculation[6].  It would merely leave the hypothesis open, rather than pointed to, on the material and that is insufficient for it to be reasonable under s 120(3) of the Act[7].

[6] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 93 cited in Blair and Repatriation Commission [2005] FCA 1076 at [25].

[7] See Repatriation Commission v Bey (1997) 79 FCR 364 at 372.

Step 4: - Is Death War-caused?

27.     As a reasonable hypothesis of a relevant relationship is not raised between cerebrovascular accident and the Mr Harris’ service, it follows that his death from that condition is not war-caused.

DECISION

28.     The Tribunal affirms the decision under review. 

I certify that the 28 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Mr RG Kenny, Member  

Signed: ………………[Sgd]…….………………….

Elizabeth Young, Research Associate

Date of Hearing  30 October 2008
Date of Decision  14 November 2008
For the Applicant  Mr R Harding of Counsel
  Mr T O’Connor Solicitor
For the Respondent                  Mr T Thrupp, Departmental Advocate