Hassett and Repatriation Commission
[2005] AATA 16
•10 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 16
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1996/1017
VETERANS’ APPEALS DIVISION )
Re FLORENCE PEARL HASSETT Applicant
And
REPATRATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member Date10 January 2005
PlaceBrisbane
Decision The decision under review is affirmed. This means that Mrs Hassett’s application is unsuccessful. ................[Sgd]..............................
E K Christie
Member
CATCHWORDS
VETERAN’S AFFAIRS – benefits and entitlements – war widows’ pension - whether war-caused death – cerebrovascular accident – anxiety disorder – post-traumatic stress disorder - hypertension - hypothesis - reasonable hypothesis - facts associated with hypothesis necessary to support the hypothesis or which are inconsistent with the hypothesis have not been disproved beyond reasonable doubt
Veterans' Entitlements Act 1986 s 120
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408
Connors v Repatriation Commission [2000] FCA 783
Byrnes v Repatriation Commission (1993) 1777 CLR 564
Repatriation Commission v Whetton (1991) 24 ALD 690
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Jackman v Repatriation Commission [1997] FCA 564
Repatriation Commission v Hancock [2003] FCA 711
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Polivitte Ltd v Commercial Union Insurance Company Pty Ltd [1987] 1 Lloyds Rep 379
REASONS FOR DECISION
10 January 2005 Dr E K Christie, Member 1. This is an application by Florence Hassett to review a decision of the Veterans’ Review Board (“the VRB”) made on 17 September 1996, that refused her claim for a war widows’ pension on the basis that the death of her husband was not related to his service.
2. In arriving at its decision, the VRB noted that in her application for review, “Mrs Hassett had not supplied any medical evidence to support her application”. (T5, Folio 63).
3. At the hearing, Florence Hassett was represented by Mr A Harding of Counsel, instructed by Messer Gilshenan and Luton. The Repatriation Commission was represented by Mr M Smith, a Departmental Advocate.
4. At the hearing, the Tribunal had in evidence before it, the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents, exhibit R1) and the various documents tendered by the parties.
The Facts
5. The general facts were not in dispute and may be stated briefly. The late Mr Hassett served in the Signals Corp and rose to the rank of Lieutenant Colonel. He served in the Australian Army from 27 May 1940 to 13 August 1945. The whole of this period constitutes eligible war service. Because he served overseas for the entire period in Syria and New Guinea, the whole of his service constitutes operational service.
6. The late Mr Hassett suffered the following “accepted” and “rejected” disabilities:
(a) Service Related Disabilities
§Exhaustion State
§Functional Dyspepsia
§Loose Medial Meniscus Left Knee
§Periodontitis
(b) Non-Service Related Disabilities
§Refractive Error
§Cervical Spondylosis
§Osteoarthritis Right Knee
§Hypertension
§Death
7. Mr Hassett passed away on 19 March 1995 aged 83, with the cause of death being certified to be from malignant cachexia, adenocarcinoma prostate, non-insulin dependent diabetes mellitus, hypertension, cerebrovascular accidents, chronic urinary retention and chronic urinary tract infection.
8. The applicant contends that the veteran’s hypertension caused or contributed to his death and that his death was war caused within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (“the Act”).
Issues to be Decided
9. Whether the death of the late veteran in March 1995 was caused or contributed to by his hypertension and, if so, whether it was related to his operational service.
10. The hypothesis advanced by the applicant had the following elements:
Operational service à psychiatric condition à hypertension à cerebrovascular accident à death.
11. It was not in dispute that the clinical onset of hypertension was 1962 and that the onset of cerebrovascular accident was early 1994.
12. The applicant called the following family members to give evidence on her behalf: Cherie Saxby (daughter) and John Hassett (son). Dr Q Mungomery, a psychiatrist and Dr J Love, a general physician gave expert medical evidence on behalf of Mrs Hassett’s application for review. Expert medical evidence, on behalf of the respondent, was given by Dr R Kahl, the late veteran’s treating GP, and Dr J Chalk, a neurologist.
Examination of the Factual Evidence
§Evidence of Florence Hassett
13. As attempts to obtain evidence by conference telephone from Mrs Hassett proved unsuccessful, Mr Smith advised the Tribunal that the respondent would not be challenging Mrs Hassett’s statement prepared in August 1997 (Exhibit A1).
14. Mrs Hassett had met her husband in 1938. They were married in 1940. Six weeks later, Mr Hassett went overseas and served in Syria and the Middle East for 16 months. During his later operational service in New Guinea, Mr Hassett had a mental breakdown as his nerves apparently just went. From this time, Mr Hassett was not the same man that came back from the Middle East.
15. After his mental breakdown, Mr Hassett was hospitalised in Melbourne and then given three months sick leave before returning to hospital. He was later discharged as medically unfit.
16. Mr Hassett never spoke to his wife about his breakdown. Mr Hassett also suffered from very severe headaches which commenced from the time he served in the Middle East. He had written to his wife about the headaches whilst on war service. The headaches lasted several days and made him very irritable.
17. Mr Hassett’s headaches continued after he returned home and persisted for almost 30 years. The headaches were treated with pethidine injections.
§Evidence of Cherie Saxby
18. Ms Saxby’s evidence related to her observations of her late father in relation to his mobility in the 1990s, as well as her observations on his cognitive state. During the 1990s, she saw her family every three months and would stay one to two weeks with them.
19. In terms of her late father’s mobility, she said that he was very frail on his feet in the 1990s, and had very poor “wobbly” balance. From the early 1990s, she stated that he started to fall over a lot. She contrasted this situation with that immediately prior to the 1990s, when she said that her late father walked briskly each day with his dogs and was at all times a very strong person.
20. Ms Saxby said that during the final three months of his life, her father could not walk unaided and relied on a walking frame.
21. Her observations of the changes in her father’s cognitive state in the 1990s was one of deterioration as he had lost the cognitive capacity to understand things – notwithstanding that he had a “fine brain” and that he had tried to resist the change.
22. Ms Saxby recalled her late father being given a liquid food supplement during the latter days of his life in which he vomited the supplement and subsequently consumed the vomitus.
23. In response to Tribunal questions Ms Saxby gave the following responses:
(a)That her late father had suffered a lot of minor strokes and she had noticed a sudden, sharp decline in his speed/mobility over time. Whilst she was aware of strokes affecting his speed and cognitive capacity, she was unaware that it affected mobility. She described some situations in which she saw her late father as ones where “he was fighting to be able to speak”.
(b)She described her father’s employment after the war as a small crop farmer with dairy cattle, changing over to beef cattle in the 1960s. In addition, he had purchased and operated a hardware store in Pomona in 1959.
(c)She described her father’s work situation as being “fairly stable” and that he was a prodigious worker who aimed to do things well. He also had an extensive social commitment to the community, serving on the Shire Council, as well as being associated with the Scouting movement and the Masonic Lodge; and
(d)She described her father’s life as one in which stress was always present.
§Evidence of John Hassett
24. Mr Hassett described his late father as being a very good person, having a general good nature. Whilst he did not regard him as an aggressive person there were occasions when he would just snap – particularly if things were not going his way. He said that it was hard to figure out the frequency of “snapping” but thought it occurred about once a month.
25. He also described his father as being “moody”. By this he meant that the late Mr Hassett became very aggressive and readily agitated resulting in disturbed behavioural/ social interactions with individuals – or even the general community. These problems increased with age. He believed that the farm represented a place of peace and quiet for his late father.
26. Mr Hassett stated that he had noticed his late father became easily depressed over time and, in this state, would retire to his room. This problem became more frequent as he became older and occurred three to four times per week.
27. In response to a Tribunal question, Mr Hassett said that his late father very seldom spoke about his war experiences. His observations of his father were that of a person who buried himself in work on the farm and in his hardware store during the day; after hours he committed himself to voluntary work to benefit the community.
§Expert Evidence of Dr Quentin Mungomery (Psychiatrist)
28. It was Dr Mungomery’s opinion that the late Mr Hassett had suffered from an anxiety condition such as post traumatic stress disorder (“PTSD”) or a generalised anxiety disorder. Moreover, that the onset of the anxiety condition was within two years of his military service.
29. Dr Mungomery was then referred to past medical records (Exhibit R6) where a provisional diagnosis of “functional dyspepsia” had been made in 1962. In Dr Mungomery’s opinion, this diagnosis was significant because:
“there [was] no evidence of physical or path-physiological cause being able to be identified. And what you are then left with is the cause being a psychiatric or a psychological one.”
Furthermore, it was his opinion that it was not uncommon to see typical symptoms of chronic dyspepsia in patients with significant anxiety disorders.
30. Dr Mungomery expressed the further opinion that not only did the anxiety condition exist around 1962, but that it was also a “clinically significant anxiety disorder” as it warranted ongoing management:
“… because it was a functional disorder, no physical treatment or medications that a gastroenterologist or general doctor may provide him at the time would have treated this dyspepsia. The treatment of choice would have actually been a psychiatric or psychological counselling, anxiety management strategies, treating underlying stressors, and possibly using psychotropic medication to assist with his anxiety. So certainly the functional dyspepsia alone was obviously of sufficient severity to require clinical treatment… he wasn’t going to respond to the normal medical treatment. It would have likely been somebody like his GP, a psychologist, counsellor, maybe a psychiatrist. Certainly with regards to the level of his anxiety state at the time, certainly given the evidence that we found from his standards in the time, he continued to present with, in my opinion, sufficient anxiety symptoms that would warrant a referral to see somebody, because they were impacting on his capacity to function, certainly with his interpersonal relationships…
…certainly on the interpersonal side of things there’s sufficient impairment there that I would consider that he would benefit or require treatment. On the work side of things, it appears that actually what he’s done to cope with his anxiety is actually to ….work, which is not an uncommon thing we find in patients with PTSD as a way of trying to avoid thinking about the problems…
I’d certainly consider in 1962 that there was sufficient evidence that he had problems enough to warrant treatment, at that point in time.”
31. During cross-examination, Mr Smith raised the proposition that it was a “supposition” that the headaches the late Mr Hassett endured were a symptom of his psychiatric conditions. That is, the headaches were a condition quite distinct from the psychiatric conditions.
32. Dr Mungomery’s response to this proposition was as follows:
“Certainly in my clinical experience and opinion, and certainly there’s documented evidence in a number of reputable texts that there is an association between psychiatric conditions and headaches. You can actually reference that in one of my reports as well to the …. comprehensive textbook of psychiatry, which is a fairly reputable well-respected text book, which we could obviously get the references for if you like, but I’d – frequently deal with the statement of principles in relation to that. But that’s certainly my opinion.”
33. When asked by Mr Smith on his opinion as to the psychiatric conditions suffered by Mr Hassett around 1962, Dr Mungomery stated:
“…when we’re asked to assess a patient’s clinical condition one of the things we look for is a sense of internal consistency with regards to the presentation of a condition over time. And from that we can often make a diagnosis of a disorder and know that it’s probably been there, often in varying degrees of severity, over a prolonged period. Certainly the clinical history of significant symptoms that are sort of peppered through Mr Hassett’s life that is provided by the collection of information, including immediately after the war, in the first few years of leaving the Armed Services, and at times up until his death, in my opinion was consistent with him suffering from a clinically significant psychiatric disorder of some sort. Certainly the fact that there’s strong medical evidence …. of him suffering from an anxiety disorder up until – that was documented in 1962. And remembering of course that the Diagnostic Statistical Manual Version IV… wasn’t in existence at that time; the actual diagnosis of post traumatic stress disorder wasn’t actually put on paper until 1980. The doctors at that time were making a diagnosis based upon their understanding of psychiatric disorders at that time in history. So my feeling has been based upon the evidence that we have, that there is sufficient internal consistency with the evidence provided at the time that these disorders which are generally chronic will get worse at times of stress of any sort that may be current in the person’s life. It’s consistent with Mr Hassett having suffered from a significant psychiatric disorder, either post traumatic or generalised anxiety disorder spectrum. So that’s basically how I can say between – around between 1960 and 1970.”
34. In response to a Tribunal question, for a situation where a person was both heavily committed to their occupational work as well as heavily committed to after hours work in the community, (i) whether the clinical onset of PTSD may be masked and (ii) whether the symptoms would only emerge following the occurrence of a traumatic event sometime later in life, Dr Mungomery responded:
“…certainly I would support that. I’ve got a number of patients who I have no doubt have a post traumatic stress disorder that appeared only later in life when they actually masked and controlled the symptoms, staying very busy in work. And interestingly though, if we looked back we found problems in their closest inter-personal relationships, which again is what Mr Hassett I think has demonstrated. But then when some other… illness or major stress occurred in their 50s and 60s, started presenting with much more significant forms of symptoms… but it’s common for people with this disorder to actually use work as a way of distracting themselves from their memories, so they keep busy.”
§Expert Evidence of Dr James Love, General Physician
35. Dr Love was asked to express an opinion on the significance of the combined effects of the following observations made on the late Mr Hassett during the 1990s:
(a)Worsening in mobility, necessitating the use of a walking frame;
(b)Deterioration in speech capacity and often in a situation where he could not find the right words to express himself;
(c)Changes in his emotional state;
(d)Problems with his hands mobility when using tools; and
(e)Immediately before death, vomiting liquid food supplements and then consuming the vomitus.
36. Dr Love gave the following response:
“All of those things taken together are very suggestive of progressive brain damage, very likely due to ischaemic cerebral disease due to progressive blockage of small arteries in the brain and loss of brain function as a result of atherosclerosis, or whichever two…”
and:
“Because that [vomiting and consumption of vomitus] would strongly suggest that a further complication of cerebrovascular disease occurred, in that his swallowing muscles of the throat had become impaired. And he was probably rather than truly vomiting, he was regurgitating liquid. Now this does happen with progressive brain disease and it’s a dangerous complication and it’s one of the features that can lead to death….
Now I’d have to say that it’s conceivable that there could be some other brain injury there, there may be some other brain process, but much the most likely is that it’s the result of cerebral vascular disease in some form or another.
37. Dr Love agreed with the following propositions put to him by Mr Smith on conclusions arising from the diagnostic investigations undertaken with the CT scan:
(a)That it was possible the mild cerebral atrophy found on the CT scan could be due to normal ageing, some other degenerative disease or to cerebrovascular disease;
(b)Based on the data at hand, and taking into account Mr Hassett’s age, it would not be possible to be certain, or even reasonably sure, whether ischaemic vascular white matter disease caused the atrophy; and
(c)That it could not be said, based on one CT scan alone, that cerebral vascular disease played a significant role in the late veteran’s death. For example, other factors such as vascular dementia were a possibility.
38. In response to a Tribunal question as to the information and diagnostic tests that were required for an effective diagnosis of cerebrovascular disease, Dr Love stated:
“The whole picture, the history of what symptoms the patient’s had and how the illness has progressed is probably the most important bit of information. Investigations are certainly important. CAT scanning, if it shows positive changes and definite changes, is very useful. These days, and Dr Chalk mentions it in his letter, that an MRI scan which is now done much more commonly than it would have been in 1994 gives a much more detailed look at the structure of the brain and you might have done an MRI scan then and seen that there were more extensive changes than could have been appreciated on the CAT scan at that time. But of course that wasn’t done and I accept that. But … my diagnosis really made as much as I know about him and the clinical history, the things that happened to him are I think of paramount importance, because they’re really telling the story of the illness. And investigations like CAT scans are supportive information, sometimes helpful, sometimes not.”
39. The Tribunal referred Dr Love to the oral evidence of Cherie Saxby in which she had stated that from the early 1990s she had noticed a sharp change in her late father in terms of his mobility and cognitive capacities. Moreover, that he had suffered a lot of minor strokes during this time. When next asked by the Tribunal whether these observations would have any impact on his opinion, Dr Love responded:
“I think that’s very important, because that’s really how we work. And in spite of all the wonders of investigation, a description of a history of an illness is still of … major importance. The fact that things were sort of happening suddenly and maybe a bit here and a bit there is most consistent with cerebral vascular disease. … I suppose there are other less common conditions that could produce the same effect. But he’s a man who suffered from hypertension as well as other illnesses that might increase his risk for cerebral vascular disease. He’s a sitting duck for cerebral vascular disease.”
§Expert Evidence of Dr Robin Kahl, Treating General Practitioner
40. Dr Kahl treated the late veteran from 1987 to 1995. He also had access to the late Mr Hassett’s medical records at his practice for the period 1973 to 1987.
41. Dr Kahl referred to the late Mr Hassett having a raised blood pressure (190/120) in May 1972. He said from this time until 1987-1988, blood pressures were occasionally significantly raised – but beyond this time “it had been reasonably well controlled”. Dr Kahl explained:
“there were times [over the period January 1973-1987] when he had significant blood pressures recorded on many occasions; very high blood pressures. Often 170, 180 over 110. That’s going through ’72, ’73. Later years occasional peaks but from probably about ’82, ’83 onwards it was improving and certainly after ’87 consistently quite good.”
42. When asked as to the type of symptoms that Mr Hassett may have presented in the last years of his life in the 1990s, Dr Kahl stated:
“[In] October 1992 he complained of increasing headaches, forgetfulness, emotional lability. There was no obvious CNS finds and we did a CT brain at that stage, which was normal for his age. So he had an episode – well, progressive episode of poor memory and tearfulness, emotional lability…”
and:
“On 28 April 1994 I performed a CT brain for looking indeed for secondary disease from his cancer of the prostate. At that stage a CT did report that there was small areas of attenuation in various parts of his brain consistent with previous ischaemic events. So there was certainly some evidence that he had TIAs or established strokes in various parts of his brain, as at that date on a CT scan, not associated with any specific cerebral symptoms at this time”.
43. It was Dr Kahl’s opinion that, in 1992, the late Mr Hassett had an “evolving mental problem which is probably related to cerebrovascular disease” and that the prime reason for his mental deterioration was cerebrovascular disease.
44. In terms of the cause of Mr Hassett’s death, Dr Kahl expressed the following opinion:
“The cause of his death was prostate cancer and iron omission from his cancer. I do no think that his cerebrovascular disease shortened the term of his life”.
45. Dr Kahl gave the following response under cross-examination by Mr Smith: that he did not agree with the proposition of Dr Love to “any significant degree” that, in Mr Hassett’s case, hypertension and cerebrovascular disease reduced the capacity of the body to withstand the effects of other disease processes.
46. The Tribunal asked a question in terms of any linkages between elevated blood pressures, hypertension and the death of Mr Hassett arising from a cerebrovascular accident. It was Dr Kahl’s opinion that without a major cerebrovascular accident, cerebrovascular disease would not have materially contributed to the length of life or the time of his demise:
“there was no evidence that he at any stage had a major event affecting any major organ system from cerebrovascular disease. But it was still significant.”
47. In relation to a further Tribunal question concerning his access to and use of information provided by Mr Hassett’s family, Dr Kahl stated that there was “nothing recorded in the notes” and he had “no specific memory or record” of conversations with the Hassett family.
§Expert Evidence of Dr Jonathan Chalk, Neurologist
48. It was Dr Chalk’s opinion that there was no doubt that the late Mr Hassett suffered from cerebrovascular disease. However he did consider that it was more probable than not, cerebrovascular disease could have significantly contributed to his death.
49. Dr Chalk provided the following rationale for this opinion:
(a)That the CT scan in 1994 indicated the presence of only 1 or 2 small lesions of the order of 1-2mm in size;
(b)That there was a general atrophy (shrinkage) of the brain;
(c)That a large number of lesions would be required to produce that shrinkage, but that this was not shown on the CT scan;
(d)Notwithstanding that a CT was “not absolutely perfect” and it would be possible in typical studies for a CT scan to miss a 50-60% of lesions, in Mr Hassett’s case, you would not expect a CT scan to miss so many lesions that would cause brain shrinkage; and
(e)The consequences of the above conclusions led him to look for an alternative explanation for brain shrinkage – as it was his opinion that it was not due to cerebrovascular disease. For example, a dementing illness such as Alzheimer’s disease was a possibility, as there were insufficient lesions to have caused the shrinkage.
50. In reaching an opinion whether cerebrovascular disease contributed to the death of Mr Hassett, Dr Chalk’s opinion was that the presence of the following symptoms were relevant considerations to establish such a connection:
(a)Diplopia (double vision);
(b)Paralysis on one side of the body;
(c)Sudden loss of the power of speech for some period of time;
(d)A shuffling gait; and
(e)Problems with judgement, balance and insight.
51. However, in the late Mr Hassett’s case, based on all the materials available to him, Dr Chalk stated:
“And the sense I get is that he didn’t have those other symptoms that you might have expected for cerebrovascular disease”.
52. In relation to the observations in the latter stages of his life that Mr Hassett consumed vomitus associated with his intake of a liquid supplement, Dr Chalk considered this to be an effect related to confusion arising from the medication he had been taking, specifically mismorphine (a drug used in the late stages of cancer to treat bone pain). Continued nausea for the whole time this drug was taken was a side effect. Confusion was also associated with age and the presence of a dementing illness.
53. In response to the following statement of Dr Love:
“a condition which causes widespread death of brain cells would reduce the capacity of the body as a whole to withstand the adverse effects of other disease process and such also through a process of general weakening, reduce the ability of the body to maintain the normal functions of life.”
Dr Chalk stated that:
“I don’t really know the answer to that question… it might be correct… it’s plausible to think that it may have some effect, but I don’t know whether that statement is true or false.”
54. Under cross-examination, Dr Chalk gave the following responses to questions from Mr Harding:
(a)An acknowledgement that CT scans had a low sensitivity for detecting damage caused by the effects of hypertension. However, he said:
“[Even if lesions] are missed then you really need to go back to the clinical evidence and look at someone’s clinical examination of him to decide what’s the significance of a lesion that you see …we don’t have a lot of evidence – in fact, I can’t find any evidence that he’s got weakness down one side of his body, for instance. That would have been extremely helpful. Usually people lose the power of speech over a short period of time; perhaps minutes to hours. There’s no evidence that he’s got that, although there is some evidence that he’s losing his speech, as I understand it, over a period of time, and that would be entirely consistent with some sort of slowly atrophic condition in the brain such as Alzheimer’s disease. But again, I can’t prove he’s got Alzheimer’s disease. The CT scan doesn’t say that he’s got it. It’s just consistent with it”.
(b)With respect to the problem of ingesting fluid that he had already vomited up, Dr Chalk said this was:
“a problem that, as people got older if they’re taking drugs then they tend to be more sensitive to the effects of the drugs as well and more – particularly sensitive to the side effects. So whereas you or I may not be confused by taking that dose of mismorphine, someone of that age with a dementing illness may well become confused because of it.”
(c)An acknowledgement that collateral history or observations of the late Mr Hassett provided a step in the diagnostic pathway:
“a clear cut story of what I call step-wise progression where he was normal one day, very abnormal the next from which he made some sort of slow recovery and it was a typical symptom such as weakness down one side of his body or rapid loss of speech, then irrespective, even if the CT scan didn’t show a lesion, I would trust that story” and would be “extremely useful”; and
(d)The limitations in the information and evidence available to him did not allow him to conclude that cerebrovascular disease contributed, in a material way, to the death of Mr Hassett.
55. Dr Chalk agreed with the Tribunal’s proposition that the information provided by a CT scan would be an aid to his opinion – but not the decision end-point for his opinion. In addition he stated:
“I very much rely on what a patient had to say about their problems, or a competent observer”.
56. In order to address imperfect evidence available to him and which he had identified in his oral evidence, Dr Chalk agreed with the Tribunal’s proposition that it would be beneficial for the assessment of the relationship between the contribution of cerebrovascular disease to the death of Mr Hassett to incorporate interviews with appropriate family member of the late Mr Hassett.
Tribunal’s Inquisitorial Powers Exercised
57. At the end of the hearing the Tribunal, with the consent of the parties, issued a Direction that sought to provide Dr Chalk with a clear cut account of observations on the late Mr Hassett’s physical state, emotional state and cognitive capacity through interviews with appropriate members of the late Mr Hassett’s family. This material would then be incorporated in an updated medical opinion provided by Dr Chalk to the parties and the Tribunal. The parties would then be invited to make supplementary submissions to this report.
Contentions and Submissions of the Parties
§The Applicant
58. Mr Harding contended that the death of Mr Hassett was war-caused within the meaning of section 8 of the Act.
59. Mr Harding contended that the veteran’s hypertension caused or contributed to his death. To establish this, the applicant relied on the death certificate and the report of Dr Love dated 4 December 2002.
60. It was Mr Harding’s submission that the late veteran’s hypertension was caused or contributed to by his war service within the meaning of factor 5(n) of Instrument Number 35 of 2003. That is, he suffered a significant anxiety disorder for the six months immediately before the onset of his hypertension.
61. Mr Harding further submitted that the late Mr Hassett suffered post-traumatic stress disorder and/or generalised anxiety disorder, with clinical onset during service. Mr Harding relied upon the report of Dr Mungomery dated 18 November 2003.
62. Mr Harding concluded with the submission that the late Mr Hassett’s post-traumatic stress disorder and/or generalised anxiety disorder were caused or contributed to by service within the meaning of factor 5(a) of Instrument Number 3 of 1999 and factor 5(a)(ii) of Instrument Number 1 of 2000. Details of the veteran’s stressors were outlined in the statement of John Hassett dated 15 July 2002 (Exhibit A2).
§The Respondent
63. Mr Smith submitted that the ultimate cause of death was prostate cancer. He submitted that, by June 1994, metastases had already spread to the pelvis, spine and right humerus. Although the late Mr Hassett suffered from cerebrovascular accident prior to his death, Mr Smith contended it did not make a significant contribution to his death.
64. It was Mr Smith’s submission that the diagnosis of “exhaustion state” was one that would not be made today. Accordingly, he acknowledged that Dr Mungomery’s opinion of post traumatic stress disorder or generalised anxiety disorder, was probably correct. However, the central issue was whether it was a “clinically significant anxiety disorder” as per factor 5(n) of the SoP for hypertension, and for this to be war-caused.
65. Mr Smith referred to the late Mr Hassett suffering from severe headaches and that medical opinion before the Tribunal had commented upon them, e.g. Dr Mungomery (tension-type headaches); a Departmental Medical Officer in 1985 (migraines).
66. It was Mr Smith’s contention that from the earliest days, the Commission treated the late veteran’s headaches as part and parcel of his exhaustion state. He submitted that this was based on an out-of-date theory about the causes of headaches. The SoPs for both migraine and tension-type headaches contained no risk factors of psychiatric disorders.
67. Furthermore, Mr Smith submitted that the early medical reports made it clear that, by 1960, the only symptom of “exhaustion state” complained about was headaches. Accordingly, Mr Smith contended that these contemporary documents should be preferred to Dr Mungomery’s retrospective interpretation of second-hand evidence 40 years after the event. Therefore, it was his contention that the late Mr Hassett had not suffered from a “clinically significant anxiety disorder” within the six months prior to the onset of hypertension.
68. Mr Smith concluded with the submission that the hypothesis: war à significant anxiety disorder à hypertension à cerebrovascular accident à death failed on the second and fourth steps. It was his contention that the late Mr Hassett’s cerebrovascular disease was due to his hypertension, that his hypertension was not the result of his war-caused psychiatric condition and that this condition had largely resolved by the time hypertension emerged.
Legal Framework
69. Subsection 120(1) of the Act provides that, where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran;
“the Commission shall determine … that the injury, disease or death of the veteran was war caused …unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
70. Subsection 120(3) of the Act provides that in applying subsection (1);
“the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining … that the injury, disease or death was war-caused …if the Commission, after consideration of the whole of the material before it des not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person”.
71. Following the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four stages as follows:
“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
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. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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. 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.
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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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 (emphasis added).”
72. An hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
73. The plain meaning of “hypothesis” was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
“A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption.”
74. In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges concluded:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker”.
75. In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is:
“obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”
and
“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 supports the hypothesis and if the hypothesis can be regarded as` reasonable if the facts are true”
Furthermore, the High Court in Bushell said (at 415):
“As we have pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its function’s under s. 120(3) the Commission cannot have regard to the medical or scientific materials which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.”
76. In Connors v Repatriation Commission[2000] FCA 783 at para14, Kenny J rejected a submission made by Counsel that “no individual part or parts of the hypothesis need be supported by facts raised in or by evidence”. Her Honour decided:
“If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material. If the material did raise the hypothesis, the decision maker must determine whether it is reasonable. It would not be reasonable if the hypothesis did not fit the relevant SoP. That is, the facts of the applicant’s service must satisfy the standards set out in the SoP. ”
77. As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 1777 CLR 564, at 571 said:
“The position may be summarised as follows:
(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran’s service with the 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 sub-s (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.”
78. In Repatriation Commission v Whetton (1991) 24 ALD 690 the Full Federal Court considered the question of the Tribunal’s role when divergent expert evidence existed and held:
“The legal principle that the Tribunal had the ultimate question of deciding the standing of the hypothesis raised and should not be deflected from that task by the opinion of experts did not mean that the Tribunal was excused from understanding and making findings upon expert evidence relevant to the question it had to decide.”
79. In relation to the application of standard of proof and subsection 120(4) i.e. the reasonable satisfaction of the Tribunal, the Court held in Repatriation Commission v Gosewinckel (1999) 59 ALD 690,:
“The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s 120(4) and not the reasonable hypothesis standard in s 120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war caused. All other matters were to be dealt with the reasonable satisfaction standard in s 120 (4).” [Emphasis added]
80. As Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564, proof in accordance with subsection 120 (4) – the “reasonable satisfaction” of the Tribunal, requires:
“The AAT had to determine, to its reasonable satisfaction… Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’.”
Consideration of the Issues
81. The Tribunal has taken into account all of the oral and documentary evidence, the legislation and case law in exerting its decision-making powers. Furthermore, the Tribunal has adopted the sequential stages in Deledio in resolving the factual issues in dispute.
Stage I: Whether the material before the Tribunal points to an hypothesis that connects the death of the veteran with the circumstances of service
82. There was common ground between the parties as to the hypothesis that could be constructed based on the oral and documentary evidence before the Tribunal: a psychiatric condition arose out of traumatic events experienced during operational service which then led to hypertension and subsequently cerebrovascular disease and ultimately the death of Mr Hassett.
83. Applying the principles in East and Stares, the Tribunal concludes that the essential elements are pointed to by the material before the Tribunal and so raise an hypothesis connecting the death of Mr Hassett with the circumstances of service.
Stage II: Whether a Statement of Principle is in Force
84. The following SoPs are applicable:
(a)Cerebrovascular Accident: Instrument No 52 of 1999, as amended by Instrument Nos 30 of 2002 and 57 of 2003;
(b)Hypertension: Instrument No 35 of 2003, as amended by Instrument No 3 of 2004;
(c)Generalised Anxiety Disorder: Instrument No 1 of 2000 (Revoked SoPs: Instrument No 48 of 1994; Instrument No 275 of 1995) and
(d)Post Traumatic Stress Disorder: Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 (Revoked SoPs: Instrument No 15 1994; Instrument No 225 of 1995).
Stage III: Whether the Hypothesis is a Reasonable One
85. In relation to the hypothesis identified in paragraph 82 above, and pursuant to subsection 120(3) of the Act, the following factors are contained within the SoP and are consistent with the template or factor:
§Cerebrovascular Accident SoP Instrument No 52 of 1999:
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person’s relevant service are:
(a)the presence of hypertension before the clinical onset of cerebrovascular accident;…”
Where:
“death from cerebrovascular accident in relation to a person includes death from a terminal event or condition that was contributed to by the person’s cerebrovascular accident;
and
“hypertension means:
(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg and/or where the diastolic reading is greater than or equal to 90mmHg; or
(b) where treatment for hypertension is being administered;…”
§Hypertension SoP Instrument No 35 of 2003:
“Factors that must be related to service
4 Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:
…
(n)suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension;…”
Where:
“clinically significant anxiety disorder means any anxiety disorder attracting a diagnosis under DSM-IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;…”
§Post Traumatic Stress Disorder SoP Instrument No 3 of 1999:
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; …”
Where:
2(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event [as prescribed in the SoP]; and
(B) the traumatic event is persistently re-experienced in one or more of the ways [prescribed in the SoP]; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the [criteria prescribed in the SoP]; and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the [criteria prescribed in the SoP].”
§Generalized Anxiety Disorder SoP Instrument No 1 of 2000:
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
…
(iii)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder…”
Where:
“clinically significant means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner.”
86. Mrs Hassett’s evidence was that during operational service the late Mr Hassett had a nervous breakdown as his nerves apparently just went. He was discharged from the Army in August 1945 as medically unfit. Dr Mungomery’s expert evidence, based on an analysis of Mr Hassett’s history over time, together with collateral information collected from his family, led to his diagnosis that the late Mr Hassett suffered a significant psychiatric disorder – either PTSD or generalised anxiety disorder spectrum, around the time period 1960-1970. The medical records of the practice of the late Mr Hassett’s treating GP indicate that he had significantly elevated blood pressure (190/120) in May 1972 and through to 1973 very high levels were recorded.
87. From 1973 to 1982/83 occasional peaks in blood pressure were recorded, but from 1982/83 onwards his blood pressure improved and, after 1987, was “consistently quite good”. There is no dispute between the medical experts that the late Mr Hassett suffered from cerebrovascular disease. Included in the causes of death on his Death Certificate were “hypertension” and “cerebrovascular accidents”.
88. Accordingly, based on the evaluation of all the material, the Tribunal concludes that there is an hypothesis that points to a connection that commences with operational service and ends with death from a disease (cerebrovascular accident). Applying Byrnes and Connors to the links, the Tribunal finds the hypothesis to be reasonable.
89. Furthermore, the Tribunal finds this hypothesis to be reasonable because pursuant to subsection 120(3) of the Act, the relevant factors prescribed in the various SoPs (as set out in paragraph 84) are contained within the SoP and are consistent with the template or factor.
Stage IV: Whether the Factual Evidence Before the Tribunal Discharges the Legal Standard of Proof
90. The appropriate point for commencing this stage of the “Deledio process” to find facts from the material before it, is for the Tribunal to identify the “kind of injury” or “kind of death “suffered by the late Mr Hassett on the balance of probabilities: see Repatriation Commission v Hancock [2003] FCA 711.
91. In response to the Tribunal’s Direction (see paragraph 57), Dr J Chalk (Neurologist) provided the following updated medical opinion (19 August 2004) on whether the late veteran suffered a vascular dementia and its contribution to his death:
“Opinion: The history obtained from Mrs Saxby was clear and easily understood. Obtaining a history from Mrs Saxby has, in my opinion, established that Mr Hassett had clinical features that were consistent with a diagnosis of probable vascular cognitive impairment and probably a dementia according to the NINDS-ARIEN criteria.
Did this problem of gait disorder, frequent falls, personality changes, difficulty manipulating tools or some other nervous system problem due to cerebrovascular disease contribute to his death? The circumstances of his death were discussed further with his daughter by telephone and notes available from the treating medical practitioner.
The GPs notes available to me from around the days and weeks preceding Mr Hassett’s death are difficult to read. I can find no mention of a cerebrovascular problem that contributed to his death. Further discussions with his daughter suggest that the main problem at the time was a failure to eat due to a lack of desire to eat food and liquid. Anorexia, the loss of a desire to eat food is seen in the late stages of cancer as well as when patients consume significant amount of morphine mixture. The failure to eat food was an important reason for his demise.
I am unable to find that the described gait disorder, frequent falls, personality changes, difficulty manipulating objects or other disorder due to cerebrovascular disease materially contributed to the problems just prior to death.” [Emphasis added]
Examination of the Supplementary Report of Dr J Chalk
92. Dr Chalk stated it was clear from the account that he had taken from Cherie Saxby that her late father had “significant vascular disease”.
93. Dr Chalk stated that on evaluating the problems of the late Mr Hassett that had been outlined to him by Mrs Saxby viz. abnormalities of his gait, abnormalities of his emotions and other problems such as lack of judgment, he had –
“tried to look at the relationship between each one of those problems which are due to his cerebrovascular disease and see whether any of those contributed to the mode of death that Mr Hassett had. And I could find no connection between any of those problems, and the mode in which Mr Hassett died.” [Emphasis added]
94. Dr Chalk was referred to the cachexia problem (i.e. the lack of desire to eat) in the late Mr Hassett. Dr Chalk stated that –
“Mrs Saxby was very clear about this, that in the last few weeks of his life, at least – and probably extending into some months before he died, he went off his food completely, he didn’t want to eat. And this would be commonly seen in people who have got a cancer, and the cause of this – like this anorexia or this lack of desire to eat is not due to cerebrovascular disease.
Cerebrovascular disease does not cause this problem. And it is usually due to the cancer producing substances – usually inflammatory substances that make people not wish to eat. So I…do not see any link between cachexia and cerebrovascular disease and anorexia.” [Emphasis added]
95. During cross-examination, Dr Chalk was asked to respond to the following proposition:
“That if the late Mr Hassett had dementia, that dementia per se could produce a failure to eat food. In turn, the failure to eat food, in fact, was the cause of death. That is, the dementia was the cause of death.”
96. In response, Dr Chalk stated:
(a)“The problem with the proposition [based on] …Mrs Saxby’s description [is] that in fact this problem with his gait, and the problem with his emotional crying, and some of the other problems that he had which include a lack of judgment are actually present for several years before he actually died. And yet the prostate cancer also is present, but in fact is accelerating, if you like, the cancer is actually spreading to his body and is increasing in mass.”
(b)that it was possible if the late Mr Hassett never had cancer at all, and dementia was the sole medical condition, “then given long enough the dementia would probably have killed him”. However, he specified that the time this would take could be “several years” from the time “when he died from his cancer”; and
(c)that the preceding point could be qualified based on Mrs Saxby’s description of the –
“functional level of problems that he had at the time that he had actually died in 1994, at that point he is still able to walk around, he is still able to function reasonably well. At the time people die from the cachexia, if you like, or the anorexia associated with a dementia, they have usually been unable to walk for a number of years, they have been unable to converse, they have usually had some problems with their swallowing…..
The problem that he has got at the time that he died is one of … a cancer that is widespread throughout his body, and the cancer per se will produce substances that will make him feel unwell, will put him off his appetite.”
97. Mr Harding commenced his supplementary submissions by stating that the central issue was whether the cerebrovascular accident was a contributing factor to Mr Hassett’s death. He referred to the oral evidence of Dr Chalk that Mr Hassett suffered a dementia relating to the cerebrovascular disease. In turn, the question became whether Mr Hassett’s dementia contributed to her cachexia.
98. Mr Harding submitted that there were a number of factors that affected the late Mr Hassett’s lack of appetite and cachexia e.g. the stage of the terminal cancer; the drugs used to treat the cancer. It was his submission that Mr Hassett’s dementia “contributed marginally to the lack of appetite”.
99. Mr Harding concluded with the submission that on the balance of probabilities that:
(a) the late Mr Hassett had dementia; and
(b)that the dementia was not “the sole, overwhelming or majority cause of his lack of appetite causing cachexia but that it was a cause, albeit a marginal cause of that cachexia”.
100. Mr Smith submitted that adenocarcinoma of the prostate was the major, if not the only cause of death. The late Mr Hassett died with cerebrovascular disease, not from cardiovascular disease.
101. Mr Smith contended that, in this regard, the Tribunal should rely on the expert opinion of Dr Chalk and Dr Kahl. Dr Chalk expressed the opinion that cerebrovascular disease did not materially contribute to the death of the late veteran. It was Dr Kahl’s opinion that the cerebrovascular accident did not shorten Mr Hassett’s life.
102. It was Mr Smith’s contention “that the cerebrovascular accident may have hastened the dying process by a short time” – but “in the scheme of things is de minimis”.
Tribunal Reasons for Decision
103. There is no dispute that the “kind of injuries [diseases]” (the test in Hancock) that the late Mr Hassett suffered were:
(a) Hypertension (Evidence of Dr Kahl);
(b) Dementia (Evidence of Dr Chalk);
(c)Cerebrovascular Accident (Evidence of Dr Chalk, Dr Kahl, Dr Love); and
(d) Prostrate Cancer (Evidence of Dr Kahl).
104. The Tribunal accepts Dr Mungomery’s diagnosis that the late Mr Hassett suffered from PTSD and a generalised anxiety disorder based on his opinion effectively integrating:
(a)the available information collected from his wife and children combined with as much information as possible from his previous medical history;
(b)some understanding of psychiatric symptoms he may have experienced prior to military service, during military service and since that time;
(c)an assessment of the consistency in his mental state during different stages of his life and prior to his death;
with the diagnostic criteria in DSM-IV for PTSD and generalised anxiety disorder.
105. Accordingly, the Tribunal is “reasonably satisfied” that the late Mr Hassett suffered from PTSD and a generalised anxiety disorder.
106. The next question arising under the “Hancock test” is to establish the “kind of death” suffered by the late veteran in relation to these diseases and the causes of death specified on the death certificate (paragraph 7). Section 8(1)(e) of the Act is relevant in this regard:
“8 War-caused death
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…..
(e) the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or….” [Emphasis added]
107. The following legal principles are relevant in interpreting the application of this provision.
(a)In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 the Full Federal Court made the following observations in relation to the term “material contribution” (at 325,326):
“‘In Repatriation Commission v Law (1981) 147 CLR 635 at 648; 36 ALR 311, Aickin J, with whom Gibbs CJ, Stephen and Mason JJ agreed, when considering provisions of the Repatriation Act 1920 (Cth) accepted that it was sufficient if war service was one of a number of causes of a disease provided that it was a contributing cause. I have myself, on occasions, used the term ‘material contribution’ in this context. The adjective ‘material’ is not necessary but its use is familiar…..The expression ‘contributed in any material degree’ was used in the Workers’ Compensation Act 1958 (Vic) and is used in s 9(1)(e) of the Veterans’ Entitlements Act 1988 (Cth) [sic] and in s 7(3) of the Commonwealth Employees’ Rehabilitation and Compensation Act [sic] 1988 (Cth). In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term ‘material’ is here used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely, ‘of substantial import or much consequence’ but rather in its legal sense of ‘pertinent’ or ‘likely to influence’.”
‘I remarked in Bendy’s case, and have said on other occasions, eg Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 at 240, that it is sufficient that the employment contribute to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be real, proximate or effective cause of the disease or of its development. When several separate factors together cause the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker’s employment. The tribunal was, however, in error in holding that a contribution brought about by the employment, however small, was sufficient. A contribution which is so small as to be immaterial, which has no causal significance, is not sufficient. A disease or an aggravation, acceleration or recurrence thereof is not attributable to employment unless it is causally connected therewith. As s 29 states, employment must be a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence thereof.” [Emphasis added]
(b) Later (at 328) the Full Court in Treloar stated:
“The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.” [Emphasis added]
108. The Tribunal has considered the following information and evidence in terms of evaluating the question to be decided under subsection 8(1)(e) of the Act.
109. The Tribunal accepts the evidence of Dr Chalk and considers his expert opinion to provide independent assistance to the Tribunal by way of objective, unbiased opinion in relation to matters within his expertise: see Polivitte Ltd v Commercial Union Insurance Company Pty Ltd [1987] 1 Lloyds Rep 379 at 386.
110. Accordingly, the Tribunal concludes that cerebrovascular disease/dementia had not “contributed to, in a material degree” to the disease from which the late Mr Hassett died because of the following reasons:
(a)The Tribunal accepts Dr Chalk’s opinion, that at the time the late Mr Hassett died in 1994, he was still able to function reasonably well – whereas death arising from cachexia or anorexia is associated with functional problems being present in a number of years preceding death. Moreover, it was Dr Chalk’s opinion that he did not see any link between cachexia and cerebrovascular disease and anorexia in the late veteran.
(b)The Tribunal further accepts Dr Chalk’s opinion that the late veteran’s loss of desire to eat food related to a period when Mr Hassett was in the late stages of widespread cancer and the substances so produced – together with the effects of his medication regime through the use of the drug “mismorphine”. The Tribunal finds that Dr Love’s evidence in this regard to be speculative; and
(c)Whilst Dr Chalk acknowledged that vascular dementia contributes “marginally” to cause a lack of appetite, his opinion was subject to the qualification that “the illness needs to be really advanced, very advanced dementia” and gave the following application to Mr Hassett’s situation:
“They are lying in bed, they are not recognising their relatives, they have usually stopped walking some period beforehand, and at that stage of the dementia, yes, they do lose their appetite and have a loss of interest in food and water. But that wasn’t the stage that Mr Hassett was, according to his daughter.” [Emphasis added]
111. Given these conclusions, the Tribunal finds that whilst there were a number of conditions affecting loss of appetite and desire to eat in the late veteran viz. advanced widespread cancer, medication regime (‘mismorphine’) and cerebrovascular disease/dementia, the Tribunal concludes that the contribution of cerebrovascular disease/dementia to loss of appetite and subsequent death of Mr Hassett to be de minimis and did not influence the course of events that led to Mr Hassett’s death. In terms of the causal significance of cerebrovascular disease/dementia, loss of appetite and the subsequent death of Mr Hassett, the Tribunal finds that on the balance of probabilities, this link remains at best, in “the area of possibility or conjecture”.
112. Given the above findings, the Tribunal concludes that a consideration of the whole of the factual material before the Tribunal does not connect the death of Mr Hassett with the circumstances of his operational service, at the requisite level of proof arising under subsection 120(1).
113. For all of the above reasons, the Tribunal affirms the decision under review.
I certify that the 113 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 12, 13 August and 23 November 2004
Date of Decision 10 January 2005
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
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