HAWE and REPATRIATION COMMISSION
[2011] AATA 504
•22 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 504
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3923
VETERANS' APPEALS DIVISION ) Re ALISON HAWE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott RFD, Senior Member and
Associate Professor J B Morley RFD, MemberDate22 July 2011
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant is entitled to a war widow’s pension with effect from 5 July 2007.
..................[Sgd]...................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions, benefits and entitlements – Widow’s pension – Applicant dependent of veteran – Operational service with Australian Army – Diagnoses of posttraumatic stress disorder, panic disorder, anxiety disorder and paranoid psychotic delusions following operational service – Death of veteran from respiratory failure caused by myasthenia gravis and cerebral ischaemia – Hypotheses that all four psychiatric conditions and cerebral ischaemia were war-caused and contributed to death of veteran – Hypotheses for panic disorder and cerebral ischaemia reasonable – Reasonable hypotheses not disproved beyond reasonable doubt – Decision under review set aside
Veterans’ Entitlements Act 1986 (Cth) ss 8, 9, 13, 120, 196A,196B
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517.
Gilbert v Repatriation Commission [1989] FCA 31; (1989) 86 ALR 713
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383
Repatriation Commission v Stares (1996) 41 ALD 212
REASONS FOR DECISION
22 July 2011 Dr P McDermott RFD, Senior Member and Associate Professor J B Morley RFD, Member INTRODUCTION
1. Ms Alison Hawe (“the applicant”) was a dependent of the late Philip Gawne (“the veteran”), who in World War II served with the Australian Army in New Guinea. The applicant has applied for a war widow’s pension. We have to decide whether the death of the late veteran was related to his service.
DECISIONS
2. On 16 October 2007, a delegate of the Repatriation Commission rejected a claim by the applicant for war widow’s pension on the ground that the death of the veteran was not related to his service.
3. The applicant sought review of the decision from the Veterans’ Review Board (“VRB”). On 22 July 2009, the VRB affirmed the decision.
4. The applicant now seeks review of the decision by this Tribunal.
SERVICE
5. The veteran served in the Australian Army from 1 June 1944 until 23 December 1946.
6. On 18 July 1945, he disembarked on operational service in New Guinea. There is evidence that the veteran served in Wewak and Rabaul from 18 July 1945 to 30 June 1946.[1] Therefore, we find that the veteran rendered operational service.[2]
[1] Exhibit A, Folios 2 and 3.
[2] Veterans’ Entitlements Act 1986 (Cth) s 6A(1).
DEATH CERTIFICATE
7. The death certificate records that the veteran died on 5 July 2007 at the Royal Brisbane Hospital, the causes being:
(a)Myasthenia gravis;
(b)Complicated by pneumonia[3].
[3] Exhibit A, Folio 16.
LEGISLATIVE FRAMEWORK
8. Section 8 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) provides when death is taken to be ‘war‑caused’. The provision applies, inter alia, where “the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service” or “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.[4]
[4] Veterans’ Entitlements Act 1986 (Cth) ss 8(1)(a), 8(1)(b).
9. Section 13(1) of the Act provides that where the death of a veteran was ‘war‑caused’, the Commonwealth is, subject to the Act, liable to pay “pensions by way of compensation to the dependants of the veteran”.[5]
[5] Veterans’ Entitlements Act 1986 (Cth) ss 13(1)(a), 13(1)(c).
10. As the veteran has performed operational service the determination of whether his death was war-caused is to be made by applying ss 120(1) and 120(3) of the Act.
11. The Act provides that:
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.[6]
The Act also provides that:
… in applying subsection (1) … 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.[7]
[6] Veterans’ Entitlements Act 1986 (Cth) s 120(1).
[7] Veterans’ Entitlements Act 1986 (Cth) s 120(3).
STATEMENT OF PRINCIPLES
12. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”). Section 196B(2) of the Act states that:
if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
a) operational service rendered by veterans;
…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
d) the factors that must as a minimum exist; and
e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
13. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). Relevantly, this provides in effect that a factor causing an injury is “related to service” rendered by a person if “it resulted from an occurrence that happened while the person was rendering that service” or if “it arose out of, or was attributable to, that service”.[8]
[8] Veterans’ Entitlements Act 1986 (Cth) ss 196B(14)(a), 196B(14)(b).
14. In the case of applications lodged after 1 June 1994, where the RMA has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from the application of s 120A(3), which provides that:
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.
ISSUES
15. These proceedings concern whether the death of the late veteran was ‘war‑caused’ within the meaning of s 8 of the Act and whether the contentions of the applicant satisfy the relevant SoPs.[9]
[9] The relevant Statements of Principles are identified in paragraphs 208 and 209 of these reasons.
EVIDENCE
16. The following documents were admitted in evidence:
· A report by Consultant Historian Dr Albert Trevino Palazzo of Weetangera, ACT[10];
[10] Exhibit J.
· A statement by the veteran's sister Margaret Ray of Cromer, New South Wales[11];
[11] Exhibit E.
· A statement by his sister-in-law Kathleen Lenore Gawne of Coffs Harbour, New South Wales[12];
[12] Exhibit D.
· Two statements by the applicant Alison Mary Hawe of Albany Creek[13];
[13] Exhibit B (dated 27 January 2010); Exhibit C (dated 24 September 2010).
· A report from Consultant Psychologist Dr Susan McCulloch of Brisbane[14];
[14] Exhibit A, Folio 21.
· The veteran's Death Certificate[15];
· A report from Consultant Urologist Dr Anthony N James of Albany Creek[16];
· A report from the veteran's General Practitioner, Dr John Alexander Ryan of Bridgeman Downs[17];
· Three reports from his Consultant Neurologist, Dr Cecilie Marion Lander of Brisbane[18];
· The Royal Brisbane Hospital's records of his final admission from 10 June to 5 July 2007[19];
· A report from his Speech Pathologist, Ms Alexandra Violet (“Cindy”) Dilworth of Burpengary[20];
· A report of a detailed medical and psychiatric assessment from Consultant Psychiatrist Dr Colin Kenneth Brennan of Chermside West[21];
· Copies of the veteran's personal documents made available to Dr Brennan[22];
· Copies of evidentiary material filed by the respondent made available to Dr Brennan[23]; and
· The veteran's service medical documents.[24]
[15] Exhibit A, Folio 16.
[16] Exhibit M.
[17] Exhibit G.
[18] Exhibit H (dated 4 January 2010); Exhibit K (dated 26 May 2005); Exhibit L (dated 12 April 2007).
[19] Exhibit R.
[20] Exhibit Q.
[21] Exhibit F.
[22] Exhibit I.
[23] Exhibit N (dated 5 July 2010).
[24] Exhibit O.
17. At the hearing the applicant called all persons who made statements, except for Dr James. Apart from the applicant and Dr Brennan, both of whom appeared in person, these persons gave evidence by telephone.
Dr Albert Trevino Palazzo, Consultant Historian
18. Dr Palazzo began his report by outlining the veteran's service record. Although not mentioning the Japanese POW Cowra breakout on 5 August 1944, Dr Palazzo attached a copy of the veteran's Service and Casualty Form[25] which showed that on 8 December 1944 he completed six months training, including at Cowra, with 3 and 19 Australian Recruit Training Battalions.[26] The veteran told his sister that, armed only with bayonets, he had joined other trainees in rounding up the escapees.[27]
[25] Exhibit J (page 1 of Attachments).
[26] Some of these entries vary in handwriting and content to those on the document at Exhibit A, Folio 2.
[27] Exhibit E, paragraph 17. See also at paragraph 25 of these reasons.
19. After next joining the 13/33rd AIF Battalion, the veteran left Brisbane on 12 July 1945, marching into the 2/3rd Australian Infantry Battalion at Wewak.[28] In the remaining month of the war, between 2 and 10 August 1945, this battalion patrolled the area, engaging several times with the enemy, on one occasion only incurring three casualties (two Australians wounded and one Japanese killed).[29] At War's end, this unit then received and disarmed capitulating Japanese troops[30], apparently without incident. Still at Wewak, on 28 November 1945 the veteran transferred to the 4th Australian Infantry Battalion.[31]
[28] Exhibit J, Folio 2.
[29] Exhibit J pp 4 and 5 (see also pp 7 and 8 of Attachments).
[30] Exhibit J, Folio 9 of Attachments.
[31] Exhibit J, Folios 2 and 5.
20. In particular, Dr Palazzo described, under the heading of "Fratricide incident", the circumstances one month later of the death of the battalion's Regimental Sergeant Major, a warrant officer (“the RSM”). He was assaulted on 15 December 1945 as the battalion awaited repatriation of its longer serving personnel from Wewak to Australia.[32] Dr Palazzo quoted the Battalion's War Diary Summary entry of 2 January 1946:[33]
On Dec 15 at approximately 0015 hrs an attack was made on the life of the RSM WO1 …. Whilst in bed, petrol was thrown over his bedding and ignited by a person or persons unknown. WO1 … was later admitted to hospital suffering from second and third degree burns, from which he died on 22 Dec. His funeral was held on 23 Dec at WEWAK CEMETERY, and was attended by a large proportion of the bn [battalion]. Investigations into the case are being carried out by the DAPM SIB and CIB.[34]
[32] Exhibit J, Folio 2.
[33] Exhibit J, Folio 5 of Attachments.
[34] Exhibit J, Folio 3 at paragraph 4.
21. Dr Palazzo found no reference to a result of investigations into the RSM’s death: apparently the area's 1st Division Provost Company had already closed its war diary at the end of August 1945 and there was no reference to it in the records of the HQ 6th Division or HQ 8th Brigade (the parent formations of the veteran’s battalion). He concluded that, according to surviving records, the attackers were never identified nor charged.[35]
[35] Exhibit J, Folios 3 – 4. .
22. He stated that, although there is no record of association of the RSM with the veteran, he was the most important warrant officer responsible for the troops' welfare. He went on:
It is inconceivable that Gawne and … would not have known each other, even if on a professional basis only. In addition, it would have been impossible to hide the RSM's fiery death in an environment as close-knit as an infantry battalion. As noted above, it is also likely that Gawne attended the RSM's funeral and burial at Wewak Cemetery.[36]
[36] Exhibit J, Folio 4.
23. During cross-examination, Dr Palazzo confirmed that, although he could not assert that the veteran had personally witnessed the RSM's assault and incineration, he certainly would have known of his murder and its circumstances.[37]
[37] Transcript of Hearing, page 72 (line 8) to page 73 (line 21).
24. On 15 January 1946, the veteran then joined the 29/46th Battalion at Rabaul to undertake camp guard duties for the very large number of interned enemy soldiers in Japanese Labour Camp 14.[38] Subsequently, he embarked for Australia on 30 June 1946[39] and was discharged on 23 December 1946.[40]
[38] Exhibit J, Folio 11 of Attachments.
[39] The Australian War Crimes Commission was sitting at Rabaul during this time; the first war criminal execution was by hanging on 20 March 1946.
[40] Exhibit J, Folios 2 and 5.
Margaret Ray
25. Margaret Ray, the veteran's sister, confirmed the accuracy of her written statement in giving evidence.[41] She described the veteran in his youth as having "an outgoing personality", and that he "got on very well with everybody during his school years".[42] Like his older brother, the veteran enlisted in the Army against the wishes of his parents when he was 17 years old, but put up his age. In her statement she deposed that the veteran told her that he had been at Cowra at the time of the Japanese breakout, and was made to search for the escapees, the recruits being armed only with bayonets.[43] About five years after the War ended, after enrolling at university, the veteran lived with her and her husband in Sydney for 18 months. She referred to his "unusual behaviour", preferring to walk instead of using public transport "because he did not know who might get on the bus or train". Otherwise he was "quite easy to live with and he liked to tell my children stories". She described him as "a most gentle person and very courteous".[44] She added:
Phillip was certainly a different person after the war to the one I knew growing up. He had a different look about him after the war; it was like a stare or a wild look and quite different from the soft look that he had about him before the war. He was always so wary about everything and I think he moved 5 or 6 times when he lived in Sydney because of his concerns.[45]
[41] Exhibit E.
[42] Exhibit E, paragraph 4.
[43] Exhibit E, paragraph 17.
[44] Exhibit E, paragraph 13.
[45] Exhibit E, paragraph 14.
26. In her evidence at the hearing, she confirmed that before the veteran went into the Army he was a "hail fellow well met" person, with many friends, and that he "played much sport and joined in everything."[46]
[46] Transcript of Hearing, page 21 (lines 39 to 44).
27. She also stated that the veteran's first marriage broke down because he suspected his wife was being unfaithful: he accused his wife of harbouring another man in their residence, even though it had no fire escape and only a single (front) door.[47]
[47] Exhibit E, paragraph 15.
28. She referred as well to information given to her about an illness suffered by the veteran during his overseas service by one of his comrades:
Phillip's friend Gordon Franklin told my parents what Phillip had endured during his war service. He told them that Phillip and another soldier was [sic] so ill with dysentery that they were taking bets on who would die of thirst. Gordon became a regular visitor to our home and a friend to the family.[48]
[48] Exhibit E, paragraph 10.
Kathleen Lenore Gawne
29. Kathleen Gawne, sister-in-law to the veteran, stated that she first met the veteran during the War.[49] Her first impressions of him were that he was "a very interesting person to talk to, well-educated and very interested in life and history ... I found him interesting and thoughtful".[50]
[49] Exhibit D.
[50] Exhibit D, paragraph 4.
30. She recounted a conversation with him about 12 months after the War ended (i.e. after he had returned to Australia and was awaiting discharge). He told her that he and other soldiers were on an island, that "one particular soldier was very irritating and was annoying people" and was "killed by a handful of Australian soldiers". Without him saying so, her impression was that he had witnessed the incident, but not participated. She wrote:
He told me that one particular soldier was very irritating and was annoying people. He told me that this man was killed by a handful of Australian soldiers. Although he never directly said so, he told me the story in such a way that I formed the clear impression that he had himself witnessed the incident (but not participated). It was told to me in the context of a traumatic incident of war which he wanted to put behind him.
I formed the strong impression that Phil wanted to discuss this issue with me as he needed to talk to someone about it. We were of a similar age and I believe that Phil confided in me because whilst I would be sympathetic, I was not close enough to him (being his sister in law) to be affected by it. To the best of my knowledge, Phil never spoke about this incident to anyone else and I do not believe he would ever have told the story to his brother Bob or his parents.
I believe that Phil told me this story in total confidence and he did not want me to repeat it to anyone. I only tell the story now to assist Alison. Phil did not tell tales and I believe the story to be truthful. To the best of my recollection, this was the only time that Phil ever discussed these wartime experiences with me. I am aware that he rarely spoke about his wartime experiences with anyone. This was a one-off occasion and I believe that Phil was serious and sincere.[51]
[51] Exhibit D, paragraphs 6 – 8.
31. She was cross-examined on her impression that he had witnessed the incident:
How did you form that impression, Mrs Gawne?---Well, I formed the impression because he seemed to be sincere and very upset about the occasion. As far as I know, I felt that – he implied that he'd been there.
He implied that he'd been there?---Yes.
How do you mean he implied?---He didn't take part in it, but – well, from all accounts they were on an island, so perhaps they all experienced that occasion or were nearby when it happened.
But he never told you that he witnessed the incident? Well, sorry, I'll rephrase that: did he tell you he witnessed the incident or not?---Yes, well, he said that he'd witnessed the incident but not participated. As far as I know, because they were there in a group - and I don't think it was a particularly large group - I think he had been told to go off, but he knew what had happened and saw the results, according to what he said.
According to what he said; he said he saw the results?---Yes.
What did he tell you? This is – we're talking 60-odd years ago, Mrs Gawne?---Yes, I know, and it's extremely difficult, but when you're told something that is so dreadful, you don't tend to forget it. And I gather that it was because of the - what had happened that he was quite distraught about it, but more than - the fact that he was there with the group and that they were fellow soldiers, I think that meant that he was included in perhaps the people on the island, but not in the incident.[52]
[52] Transcript of Hearing, page 86 (lines 1 to 25).
Alison Mary Hawe
32. The applicant's statements[53] contained content of considerable medical relevance. She first came into contact with the veteran as a student at the University of Waikato in 1975.[54] Two years after he separated from his wife in 1987, she joined him as his de facto partner.[55] As well as her intimate personal experience of the veteran over the last 25 years of his life, she has had access to his extensive personal records including his many diaries and copies of his correspondence.
[53] Exhibits B and C.
[54] Exhibit B, paragraph 22.
[55] Exhibit B, paragraph 30.
33. In her first statement she wrote:
... Phil did not speak of war experiences until late in his life and never attended Anzac Day commemorations. Because I sensed that Phil was dissociating himself from some trauma, from about 2001 onwards, I encouraged him to talk about his war experiences. Thereafter, Phil would tell our children Tim, Jeremy and Jacqui humorous tales of his time in the islands but he never spoke of anything traumatic.[56]
...
Phil did mention to me later in his life some of his experiences in the jungle that he found difficult. He talked of being woken up in the dead of the night to go on route marches, having to find the way back to base in the dark and of having to strip naked for river crossings. Phil was a highly sensitive young man, from the select Sydney Boys High School, a reader and lover of classical literature, history, Romance languages, dance, the arts and was only 17 years of age when he joined the Army. Other members of his unit were drawn from the coalfields of Newcastle and Phil felt very much out of place surrounded by men with a vastly different upbringing, background, maturity and worldliness ...[57]
[56] Exhibit B, paragraph 4.
[57] Exhibit B, paragraph 8.
34. During her cross-examination she reaffirmed that, unlike his brother, the veteran never attended Anzac Day marches.[58] She later said:
…I was aware that he was avoiding associating himself with army conflict and things like the – the ANZAC march, and I was puzzled as to why he was so - so, sort of, vehemently opposed to doing those sorts of things and – and – and shying away from it.[59]
[58] Transcript of Hearing, pages 11 – 12 (line 41 to line 3).
[59] Transcript of Hearing, page 14 (lines 11 to 14).
35. Having referred to the veteran telling his sister-in-law of having witnessed the fratricide incident,[60] she remarked that he "continually" feared that "people were after him or 'out to get me'" (applicant's emphasis).[61] Under cross-examination at the hearing, she referred to his diary entries about "being pursued and somebody coming after him"[62] although she also affirmed that the veteran had not spoken to her about the fratricide incident.[63]
[60] Exhibit B, paragraph 5.
[61] Exhibit B, paragraph 10.
[62] Transcript of Hearing, pages 12 – 13 (line 46 to line 2).
[63] Transcript of Hearing, pages 11 (lines 36 to 38).
36. She then wrote of his White Russian former university colleague, who feared that the Russian secret police had resumed pursuing him, and accused the veteran of betraying him. She said that in the late 60s this man "allegedly was responsible for a series of events attributed to the name of Philip Gawne" and the police were contacted.[64] Kathleen Gawne has referred to this as occurring when he was working at the University of New South Wales.[65] Among the numerous documents (such as copies of his diary entries and various correspondence items) that the applicant appended to her statement[66] was a copy of the veteran’s handwritten diary entry on Tuesday 26 September 1967:
First issue of "Life" magazine arrived. Addressed to Dr Phil Gawne, Flat 8. 78 82820880 JUN 68
[64] Exhibit B, paragraph 23.
[65] Exhibit D, paragraph 11.
[66] Exhibit B.
37. She also wrote that unidentified callers would immediately hang up when the veteran answered the telephone and that the veteran's mother received "several unnerving phone calls".[67] Although these incidents ceased when he took up his University of Waikato appointment in 1968, they resumed on his return to Sydney in 1982.[68] He became increasingly suspicious and withdrawn, and he and his wife separated in 1987.[69] Two years later he and the applicant began living together.[70]
[67] Exhibit B, paragraphs 23 and 26.
[68] Exhibit B, paragraphs 23 – 26.
[69] Exhibit B, paragraph 27.
[70] Exhibit B, paragraph 30.
38. For at least the last 20 years of his life the veteran came to believe that he was being "hounded by some unknown force or organisation, eventually concluding that he was being targeted by ASIO agents".[71] This preoccupation became the subject of many of his diary entries, and some of his correspondence. The documents that the applicant appended to her statement included a diary record for July 1987 referring to his telephone "being bugged" and letters "being intercepted". The applicant also summarised his diarised records of experiences, feelings of isolation, inability to socialise, suspicions of being subjected to surveillance and secretiveness.[72]
[71] Exhibit B, paragraph 28.
[72] Exhibit B, paragraph 29.
39. Two of his diary entries for February 1988 described him being "zapped". On 15 May 1989, he wrote to the editor of the Sydney Morning Herald, a copy of which he also submitted to The Australian:
Very few people in Australia are aware that ASIO has been equipped with a variety of devices which are being used to target certain individuals in this society. These devices, products of the new technology, enable their users to beam rays of one kind or another through walls, ceilings, floors and the like. Thus it is now possible for citizens of this country to be regularly "zapped” in the supposed security of their own homes; of course it also happens on trains, buses, ferries and in public places of all kinds. Its effect is to impair the mental and physical functioning of the person so assailed and when repeated day after day, night after night, becomes quite debilitating. In particular the eyes are affected. There is also persistent nausea, vertigo, retching, loss of balance, pains in the gut and headaches, severe all but incessant headaches. Nor are the functionaries who aim these devices (weapons?) constrained by any notion of what might be unacceptable to the Australian community. They target the genitals as readily as any other part of the body. Whether the Prime Minister to whom this organisation is answerable, knows and approves of such outrageous behaviour I cannot say. I would hope and expect not. If, however, he is unaware of what has been happening that would itself be reason for grave concern for it would mean that he has no effective control over ASIO operations. Yet, given the nature of the sophisticated devices being used by that organisation anything less than strict ministerial control would seem reckless because the potential for abuse is obviously enormous. We could well have in the community a group of men and women who, by government default, were able to target, harass and hound whomsoever they pleased, the innocent along with the guilty. In fact, whatever the cause, that outcome is already with us as I have found to my cost during the past twelve months.
I am one of the ordinary citizens of this country, a person of no public name or reputation. As do large numbers of Australians I take an interest in politics but have never been a member of any political party. Above all I am not what is commonly called a political activist. My knowledge of spies and spying is small. It has been derived almost entirely from novels, films and newspapers. Moreover my studious and very private way of life hardly betokens a threat to the security of the nation, yet for some time now I have been kept ever more closely under surveillance. My telephone has been tapped, my home broken into, listening devices planted, files searched and my person constantly targeted in the manner indicated above. Four times I have changed homes, all to no avail. And still I have no idea of what I am supposed to be guilty. Hence I write to your newspaper, firstly to warn your readers of the fate that could befall any one of them while ever ASIO is equipped as it is and allowed to operate as it does: and secondly, to offer myself for questioning by any legitimate authority provided only that I am beforehand informed of what my offence has been deemed to be. How about it Mr Hawke?[73]
[73] Exhibit I, Folios 43 – 45.
40. Neither editor published the letter. There followed copies of two other letters in similar vein: one dated 15 September 1989 was written to the Secretary of the Council for Civil Liberties[74], the second, two years later, was addressed to Mr Alan Ramsey of the Parliamentary Press Gallery in Canberra.[75]
[74] Exhibit I, Folios 31 – 33.
[75] Exhibit I, Folios 38 – 41.
41. She also described his sleeping pattern:
Philip had terrible difficulties with sleeping. At best, he would have a broken sleep with restless legs. He was always hyper-alert and in a high state of anxiety. I often wondered how he managed to keep going with so little sleep.[76]
[76] Exhibit B, paragraph 41.
42. The applicant supplied a second statement headed "Panic Attacks".[77] This detailed numerous additional instances, based on his diary entries from 1985 onwards, of his “zapping/bugging" concerns, suspected ASIO "contacts", "surveillance", and interference with his car to cause an accident when driving. He also suspected that his nephew might have been in league with ASIO. She wrote that, although he was diffident about making new friends:
Once the bridge had been crossed, social interaction with a limited number of people outside the home did occur, but they remained "special" people who he felt safe talking to. All others were regarded with suspicion.[78]
[77] Exhibit C.
[78] Exhibit C, Folio 3 (paragraph 1).
43. He was "plagued by thoughts about what others would be thinking of him" when he appeared in public, either alone carrying his infant older son, or accompanying his much younger pregnant partner. At times of stress, sometimes it was necessary for the applicant to direct him: he panicked when she came into early labour with the twins, for whom she required an emergency caesarean section, and she had to "instruct him to ring the doctor, request a home visit, and get me to the hospital." He then called a taxi instead of an ambulance.[79]
[79] Exhibit C, Folio 2 at paragraphs 2 – 3.
44. She again recorded his disturbed sleeping patterns:
Phil's night time symptoms would frequently cause him to leave the bedroom for another room in the house in search of sleep. It was very common for him to waken, feeling unwell, sick, complaining of stomach pain, nauseous, dizzy "as though the walls were coming towards me", "I was bouncing off the walls as I walked to the toilet". Feeling dizzy, visibly shaken and anxious, sometimes claiming someone was after him, he would calm after returning from the toilet. Night time sweats plagued him too and he would lie on the coolness of the family room tiles for relief. His pillow case required frequent laundering due to stains from frequent and heavy perspiration.[80]
[80] Exhibit C, Folio 4 at paragraph 3.
45. She wrote that his concerns, for example about ASIO, sometimes would cause him to panic.[81] He also was particularly fearful immediately before his 2007 admission into the Royal Brisbane Hospital, because of his experiences during his two previous immediately consecutive, late 2006, admissions there with the drugs prednisone and particularly Mestinon.[82] His apprehensions about again being administered Mestinon prompted them to complete a power of attorney.[83]
[81] Exhibit C, Folio 5 at paragraph 2.
[82] Transcript of Hearing, page 41 (lines 14 to 41).
[83] Exhibit C, Folio 5 at paragraph 4.
46. When cross-examined, the applicant explained that she initially consulted Psychologist Dr McCulloch, at the suggestion of their General Practitioner Dr Ryan, because of their son Timothy's difficulties at school in Years 10, 11 and 12. The veteran also had had an appointment to see her late in July 2007.[84]
[84] Transcript of Hearing, page 12 (lines 5 to 18).
47. She was also asked questions by us regarding variations in the veteran's cognitive capabilities in the last two years of his life. She described his considerable problems in November 2006 during and after his first Royal Brisbane Hospital admission: he was disorientated, and had difficulty with the speech pathologist's simple word association tests. However, because he improved appreciably over the next few months with the speech pathologist’s rehabilitation program, the applicant had been prompted to purchase evolutionary biologist Richard Dawkins' latest book for the veteran's birthday in May 2007. She said that by the following month when he went into hospital for the last time his bookmark showed that he had read his way through at least a third of the book.[85]
[85] Transcript of Hearing, pages 32 – 35.
Dr Susan McCulloch, Consultant Psychologist
48. Dr McCulloch told us that she holds the qualifying Degree of Bachelor of Arts with Honours, and the postgraduate Degrees of Doctor of Philosophy in Psychology and Master of Applied Psychology. She has been practising for approximately 15 years, specialising in forensic psychology. She had provided her report dated 2 May 2009[86] at the request of the applicant; she had not seen the veteran before he died. She based her observations on material provided by the applicant, including excerpts from the veteran's diaries, his curriculum vitae and copies of his professional references, and various items of his correspondence.[87]
[86] Exhibit A, Folio 21.
[87] Exhibit A, Folios 21 – 22.
49. Her report first summarised the veteran's academic and professional history and his war service experiences, including the account given by his sister-in-law Kathleen Gawne[88] of him having "witnessed" the RSM’s violent death in 1945. She then outlined his post-war psychological progress, referring to his many diarised symptoms, and wrote:
Although he presented in a calm, composed and professional manner in the presence of his academic colleagues, internally he was reportedly experiencing increasing discontent, suspicion and unrest in his own life which he projected onto his surroundings.[89]
[88] Exhibit D.
[89] Exhibit A, Folio 24 at paragraph 3.
50. She also gave a brief account of the effects of his "increasingly dysfunctional behaviour" on the applicant and their children.[90]
[90] Exhibit A, Folio 25.
51. With the assistance of the applicant, she then conducted an in absentia Mental Status Examination of the veteran by applying two tests:
· The Detailed Assessment of Posttraumatic Stress (“DAPS”), designed to examine an individual's symptoms in response to a particular traumatic event, during or soon after the event, as well as later, to diagnose potential Posttraumatic Stress Disorder (“PTSD”) or Acute Stress Disorder; and
· The Posttraumatic Stress Diagnostic Scale (“PDS”), which assists the diagnosis of PTSD according to the criteria of the DSM-IV.[91]
[91] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (4th ed, American Psychiatric Association, Washington, DC, 2000).
52. Dr McCulloch prefaced her presentation of these test results with this caveat:
The objective tests were undertaken by Ms Hawe and for that reason, the results cannot be considered to be valid as intended by the test developers. However, these test results have been used as an indicator of the issues experienced by Mr Gawne, as perceived by his partner of 18 years, Alison Hawe (Dr McCulloch's emphasis).[92]
[92] Exhibit A, Folio 26 at paragraph 3.
53. In brief, Dr McCulloch interpreted the DAPS results to suggest that the veteran suffered "peri-traumatic dissociation", "effortful and numbing avoidance" and "hyperarousal", with severe posttraumatic stress symptoms and posttraumatic impairment. She noted associated features of high-level "trauma-specific dissociation", "above-average levels of substance abuse", and "a high level of suicidality." She concluded that, based on the applicant's perceptions, the veteran possibly had "more 'complex' PTSD".[93]
[93] Exhibit A, Folio 27 at paragraph 6.
54. From the self-reported PDS completed by the applicant, Dr McCulloch's impression was that the veteran suffered severe functioning impairment.[94]
[94] Exhibit A, Folio 28 at paragraph 4.
55. On the basis of this material, Dr McCulloch concluded with her opinion that it was "highly likely" that the veteran's symptoms met the criteria in the DSM-IV-TR for a diagnosis of chronic PTSD.[95] She remarked:
It appears that Mr Gawne's condition, without treatment, escalated over time and produced physiological symptoms that are likely to have contributed to his death.[96]
[95] Exhibit A, Folio 29.
[96] Exhibit A, Folio 29.
56. When cross-examined at the hearing, she confirmed that the PDS was developed as a collection of self-reporting tests. Mr Kelly, the advocate for the respondent, then referred Dr McCulloch to her PDS observations (recorded on page 7 of her report) of the applicant recounting that, regarding the fratricide incident, the veteran had:
Experienced upsetting thoughts and images about the incidents that come into his head ... Experienced bad dreams of or nightmares about the traumatic event.[97]
[97] Exhibit A, Folio 27 at paragraph 7.
57. On then informing Dr McCulloch that the evidence before us was that the veteran had never spoken of the incident to the applicant, Mr Kelly went on:
Did she tell you that he spoke to her about it?---As I understood, they had some communication about it.[98]
[98] Transcript of Hearing, pages 127 – 128 (line 16 to line 12).
Dr John Alexander Ryan, General Practitioner
58. In his report[99], the veteran's General Practitioner, Dr Ryan, addressed his diagnosis of the veteran's ischaemic cerebrovascular disease. He referred to this as compromise of the blood supply to the brain by arteriosclerosis causing ischaemic changes, as described in the copies of the reports of two of the veteran's CT brain scans attached to his report. The first, requested by Dr Lander at the veteran's first consultation with her, was reported by Dr P Landy on 27 May 2005, the relevant part reading:
Findings: There is a subtle small area of lower attenuation of the left basal ganglia in keeping with ischaemia...
Comment: A small area of ischaemia or infarction is noted in the left basal ganglia. Some prominence of the cortical sulci is noted in particular laterally on the right and left superior to the sylvian fissures and as such old small cortical infarcts can be difficult to exclude... [100]
[99] Exhibit G.
[100] Exhibit G (Attachment A).
59. Dr Ryan had requested the second report 16 months later (8 September 2006), after the veteran had had an episode of dysarthria (slurred speech) and ataxia (unsteady gait). The report, which was provided by Dr Mark Cooper, included:
Findings: ... There is periventricular hypodensity in keeping with chronic deep white matter ischaemia. There is a slightly more focal area of hypodensity cortically based within the posterior peritoneal [sic: pterional] region it [sic: which] may represent a cortical infarct. The previous examination is not available for direct comparison...
Comment: Atrophy and ischaemia.[101]
[101] Exhibit G (Attachment B).
60. Dr Ryan also recorded that at the veteran's consultation on 21 February 2006 with one of his practice colleagues, Dr Zophia Hess, she had recalled that he had had "a clinically significant 'mini stroke'".[102]
[102] Exhibit G, Folio 2 at paragraph 4.
61. He referred to the veteran having a history of predisposing factors of "excess smoking" and PTSD during his military service, with absence of other risk factors of raised blood pressure and raised blood cholesterol levels.[103]
[103] Exhibit G, Folio 2 at paragraphs 8 – 9.
62. Furthermore, Dr Ryan cited an entry in the veteran's last Royal Brisbane Hospital admission progress notes on 2 July 2007. This included a reference to a suspected episode of cerebrovascular ischaemia preceding his first two hospital admissions for myasthenia gravis in October and November 2006. This had been observed by his wife as an incident of facial weakness and slurred speech.[104]
[104] Exhibit G, Folios 2 – 3; Exhibit I, Folio 87.
63. Dr Ryan then went on to state that the veteran had suffered a "terminal 'stroke'" two days before he died.[105] Although closely cross-examined on the point, he did not amplify on this. Having recognised the significance of his myasthenia gravis as causing the veteran’s death, he added that he thought that cerebrovascular ischaemia also had "played a big part".[106] He said that there was “abundant evidence” that the veteran had cerebrovascular disease, and did not think that he had Alzheimer's Disease.[107]
[105] Exhibit G, Folio 3 at paragraph 3.
[106] Exhibit G, Folio 3 at paragraph 3.
[107] Transcript of Hearing, page 66 (lines 26 to 28).
Dr Cecilie Marion Lander, Consultant Neurologist
64. Dr Lander qualified in medicine in 1971 and completed her training in neurology seven years later; she is a Fellow of the Royal Australasian College of Physicians. In her report of 4 January 2010[108] she summarised the late veteran's clinical course, from when he first consulted her on 26 May 2005 for his hand tremor, impaired balance and deteriorating memory. At that time, his only neurological examination abnormality was his tremor; on cognitive testing (Mini Mental State Examination i.e. “MMSE”) he made only one error, scoring 29/30. Dr Lander referred to her CT brain scan report of that day (i.e. the first of the two cited by Dr Ryan in his report) as revealing ischaemic change, possibly infarction, in the left basal ganglia, and possible "old cortical infarcts" with mild cerebellar atrophy. His skeletal muscle antibody test was positive, but his anti-acetylcholine receptor antibody assay was negative.[109]
[108] Exhibit H.
[109] Exhibit H, Folio 1.
65. Dr Lander wrote in her letter to Dr Ryan that she then was uncertain whether the veteran had some underlying "vascular factors" or a "neurodegenerative condition".[110] During her evidence-in-chief, she opined that, at his age, it was "highly likely he had some cerebrovascular disease".[111] This was notwithstanding that in her main report[112] she mentioned another "normal CT brain scan" of nine months later (dated 21 February 2006). This was the date recorded by Dr Ryan in his report[113] as that when his practice colleague, Dr Hess, had seen the veteran for "a clinically significant mini stroke".
[110] Exhibit K, Folio 1 at paragraph 9.
[111] Transcript of Hearing, pages 48 – 50 (line 36 to line 7).
[112] Exhibit H.
[113] Exhibit G, Folio 2 at paragraph 2.
66. Dr Lander told us that, with hindsight, the veteran probably had both Alzheimer's Disease and low-grade cerebrovascular ischaemic events, of which that recorded by Dr Hess was one. She said:
... Well, I think if I had to sum it up, what evidence is there for cerebrovascular disease, I think – I mean, there are some – certainly some CT scan changes. That was true, and that was reported, I think, on the third CT scan as well. Secondly, he was 79 by this – 81 by the time he died. It would be highly likely he had some cerebrovascular disease. That's also likely. And there was – there's at least one event documented by Sophie [sic: Zophia] Hess and [sic] was quite possibly a TIA [transient ischaemic attack], and they often don't show up if they're very tiny they often don't on the CT scan.
Okay. Thank you. Now, you do posit in your opinion that he had early Alzheimer's disease?---Yes, I think so.
Yes. Now, is there any overlap between Alzheimer's disease and cerebrovascular disease?---Well, I mean, it's greatly argued as to whether some cases are purely cerebrovascular. But I think the current thinking is probably a little more in favour that one has a predisposition to Alzheimer's disease and the vascular events then trigger the deterioration. So it's a kind of domino effect.[114]
[114] Transcript of Hearing, page 50 (lines 1 to 16).
67. Then, 16 months later, on 8 September 2006, Dr Ryan referred the veteran urgently to Dr Lander via the Holy Spirit Northside Emergency Centre, for "acute exhaustion"; cognitively he was described as "alert and orientated".[115] In her report, Dr Lander wrote that she saw him three days later, now unwell with right ptosis (drooping eyelid), dysphagia (difficulty swallowing), and fatiguability.[116] She suspected that he now had developed myasthenia gravis. Also, his CT brain scan report of that day described considerable atrophy and "some ischaemic changes" without "an actual infarct".[117]
[115] Exhibit I, Folio 87.
[116] Exhibit H, Folio 2 at paragraph 1.
[117] Exhibit H, Folio 2 at paragraph 1.
68. For the veteran's suspected myasthenia gravis, Dr Lander started him on pyridostigmine (Mestinon) treatment. The diagnosis was confirmed after several days by a positive anti-acetylcholine receptor antibody assay result.[118] Because he deteriorated further, a week later she admitted him into the Royal Brisbane Hospital[119] to treat him with intravenous immunoglobulin (“IVIG”)[120] as well as commencing him on prednisone. As stated in her admitting letter to her Registrar[121], Dr Lander told us that the veteran and the applicant were worried that the Mestinon on which she already had started him was making him worse.[122] The applicant told the hearing that the veteran quickly found the effect of Mestinon to be "very disquieting", and described in detail his various difficulties with it.[123] Therefore, during this admission the Mestinon was discontinued.
[118] Exhibit H, Folios 1 – 2.
[119] Exhibit I, Folio 97.
[120] Exhibit H, Folio 2 at paragraph 4.
[121] Exhibit I, Folio 97.
[122] Transcript of Hearing, page 52 (lines 19 to 46).
[123] Transcript of Hearing, pages 16 – 17 (lines 1 to 18).
69. Physically he improved only slowly, and the adjustment of his prednisone dose quickly required his readmission for several more weeks in the hospital.[124] Furthermore, when he was discharged he had an unpleasant odiferous fungal rash ("thrush") on his tongue, which Dr Ryan had treated successfully.[125]
[124] Transcript of Hearing, page 17 (lines 35 to 42).
[125] Transcript of Hearing, page 17 (lines 6 to 17).
70. Meanwhile, during that admission, Dr Lander and the applicant had observed also that his memory was "much worse".[126] However, following his discharge, when Dr Lander reviewed him on 4 December 2006, the applicant told her that his memory "is improving now".[127] On then testing his MMSE, Dr Lander found that, since his previous test some 18 months prior, his score now had fallen 5 points to 24/30. She also still suspected that he had Alzheimer's Disease.[128]
[126] Exhibit I, Folio 91 at paragraph 4.
[127] Exhibit I, Folio 91 at paragraph 4.
[128] Exhibit H, Folio 2 at paragraph 4.
71. At that consultation, she also advised the veteran, from mid-January, to reduce his prednisone dose to 22.5 mg/day.[129] However, soon after that, still being worried about his prednisone dose, the veteran and the applicant returned to Dr Ryan's clinic, where one of his colleagues then reduced it slightly.[130]
[129] Exhibit H, Folio 2 at paragraph 5.
[130] Transcript of Hearing, pages 17 – 18 (line 45 to line 2).
72. At his next review seven weeks later (23 January 2007) the veteran’s physical improvement had continued; and Dr Lander and the applicant both thought that his memory had improved "a little more".[131] However, he had reduced his prednisone more than she had instructed him, to 20 mg daily.[132] At this consultation, Dr Lander cautioned him to further reduce his prednisone only slowly because of his initially severe presentation ("myasthenic crisis")[133], so that at his next review in 10‑12 weeks he would be taking 20 mg/10 mg on alternate days.[134]
[131] Exhibit I, Folio 90 at paragraph 1.
[132] Exhibit H, Folio 2 at paragraph 6.
[133] Exhibit H, Folios 2 – 3.
[134] Exhibit H, Folio 2 at paragraph 6.
73. Yet, when seen again on 13 April 2007, although his myasthenia gravis was satisfactory, he was again taking a lower prednisone dose than advised: now at 10 mg/9 mg on alternate days.[135] Dr Lander instructed him and the applicant, because of his original "myasthenic crisis", to further reduce the prednisone, but no faster than by 1 mg on the alternate daily dose each month. She indicated:
... that I would see him again in three months and for him absolutely not to go below 10 mg/4 mg alternate days at all.[136]
[135] Exhibit H, Folio 3 at paragraph 2.
[136] Exhibit H, Folio 3 at paragraph 2.
74. At the hearing the applicant was asked:
Have I got this right that, in fact, as of 13 April 2007, he wasn't taking it [prednisone] as was prescribed?---Well, he wasn't when he came but I did give them a very good talking to and said that they absolutely had to comply with this and that it was dangerous not to do so.[137]
[137] Transcript of Hearing, page 54 (lines 18 to 21).
75. She also confirmed that this was the second occasion that the veteran had reduced the dose of prednisone further than she had intended.[138] She went on:
... He was much more trusting of complementary medicine that he was of standard medicines. He was always worried that they might harm him and, in fact, he and his partner both felt that Mestinon made him worse. Now, he initially seemed to think that. Later, it was his partner who said those things and though [sic] was, as you will notice from the ICU [Intensive Care Unit] notes, that was a continual problem we had. Now, I mean, certainly medications can cause side effects but there was certainly a problem with that and was always being – he was always fearful that it wasn't good for him.
Okay. Okay, I'm just letting that digest, I think. Could you just repeat that so we've got it clear? You said, "He was fearful, it wasn't good for him."?---Well, he was always – he was always very – yes, he took standard medications reluctantly, I think.
Yes? ---I mean, you might have seen earlier, I had – there was a point at some stage where I put him on Losec when I put him on Prednisone. That's documented back in my letters – medical letters – and when he come [sic] back next time he wasn't taking Losec. You had to take Losec to protect the abdominal lining in case the steroids [prednisone] increase your risk of ulceration. But he didn't want to take Losec so he didn't take Losec. So, yes, there were – it was all for those three agents, there was a good deal of, I guess, non-compliance, yes, and a wanting to do it his way.[139]
[138] Transcript of Hearing, page 52 (lines 25 to 35).
[139] Transcript of Hearing, pages 52 – 53.
76. We had already questioned the applicant about those changes in the veteran's prednisone dose. However, the applicant added that the veteran, other than the Mestinon, was compliant with his treatment.[140] She said that he had a positive attitude to taking prednisone, and realised that it was important treatment for him. After his swallowing later worsened again, he became increasingly reliant on her for his complex medication doses.[141]
[140] Transcript of Hearing, page 18 (lines 29 to 35).
[141] Transcript of Hearing, pages 17 - 19.
77. In her report, Dr Lander also recorded that on 13 April 2007 she obtained the veteran's MMSE score, which was still at 25/30.[142]
[142] Exhibit H, Folio 3 at paragraph 2.
78. However, he was admitted for the last time, urgently, to the Royal Brisbane Hospital eight weeks later on 10 June 2007 with worsening swallowing difficulties and dysarthria (slurring of speech), which she considered to be due to acute worsening of his myasthenia.[143] Dr Lander told the hearing that she again was uncertain whether he had been taking the advised prednisone dose:
[143] Exhibit H, Folio 3 at paragraph 3.
Did you ever have occasion to wonder whether he was in fact taking the Prednisone? ---I wondered when he came in [the hospital] in June 2007 what he was taking just before that.
Yes? ---I don't know what [dose] he actually took.
June 2007, this is just before the - - -? ---Just before he came – when he had the major deterioration.
Yes? ---But maybe, maybe this – this does happen with myasthenia that you can suddenly just go too far. It was certainly faster than I had wanted to go but that was what he really wanted to do it [sic]. And, as I said, it was he and his partner, it was very hard to sort out who was thinking this but it would certainly seem to be a mutual approach.
Yes. And you say it was difficult to sort out who was seeking this. Did you form any impression?---Yes. It came with one voice really and his partner would always support - she was a very good advocate for him but they would seem to see things this way.
Yes. Okay. And that crises [sic] that occurred, the myasthenia crises [sic], just if you could put it – explain how that came about that he suffered a crises [sic]?---Well, that's always a very good question and anyone with myasthenia gravis can have this. I mean, it has – in the past was a commonly lethal disease and this was an old frail man and he had his second major attack of this disease so the immunosuppression wasn't able to hold it, it wasn't holding it perhaps at the time, and so he had a resumption of all the symptoms he'd had in the previous admission. Again, with inability to swallow, inability to speak, fatigability [sic], total weakness, unable to eat so, in fact, you fatigue incredibly quickly and it can, of course, result in an acute respiratory crises [sic] and you can't breathe. So that's what actually happens, so its [sic] an acute neuromuscular blockade when the muscles just don't respond to what you want them to do.
And that – the medication he was on, which you'd prescribed - - -? ---Yes.
- - - leading up to that period of time- - -? ---Mm.
- - - was the intent of taking that- - -? ---It was to suppress it.
- - - to effectively control it? ---Yes.
And by not taking the medication, did that increase the risk of getting out of control? ---I – if he didn't take it, that would certainly – I mean, if he didn't take it, that would certainly have precipitated it...[144]
[144] Transcript of Hearing, pages 53 – 54.
79. In response to questions from us about this later point of his clinical course, Dr Lander remarked that it was the veteran and the applicant together, and no other persons (such as their general practitioner), who were lowering his prednisone doses further than she had wanted.[145]
[145] Transcript of Hearing, page 56 (lines 23 to 37).
80. With regard to any possible cognitive difficulties that the veteran may have had in following the instructions for his treatment, she said that that only became evident in the later stages.[146] When the applicant's evidence was put to her about the fluctuations in the veteran's cognitive capabilities between late 2006 and April 2007, she agreed that they could have been consistent with a cerebrovascular ischaemic component to his cognitive problems.[147]
[146] Transcript of Hearing, page 60 P-60 lines 9 to 16.
[147] Transcript of Hearing, pages 60 – 61.
81. Dr Lander continued her report by describing the veteran as then progressing to respiratory failure, due to severe myasthenic crisis, which despite prolonged Intensive Care Unit (“ICU”) support could not be controlled. This led to his death on 5 July 2007.[148] She concluded by recording that the veteran had died of respiratory failure and subsequent pneumonia, resulting from severe myasthenia gravis which no longer responded to treatment. She added that he also had early Alzheimer's Disease and clinically mild ischaemic cerebrovascular disease.[149]
[148] Exhibit H, Folio 3 at paragraph 3.
[149] Exhibit H, Folio 4 at paragraphs 1 and 2.
82. In her evidence-in-chief she confirmed that his respiratory failure was the predominant cause of the veteran’s death, and that his ischaemic cerebrovascular disease contributed to it.[150] During cross-examination she added that the pneumonia, which used to be a very common final outcome of myasthenia gravis, followed on from his respiratory failure.[151]
[150] Transcript of Hearing, pages 50 – 51.
[151] Transcript of Hearing, page 54 (lines 33 to 42).
83. Dr Lander's other two reports[152] were copies of her progress letters to Dr Ryan, describing various details of the veteran's clinical state that she later had summarised in her main report.[153]
[152] Exhibits K and L.
[153] This constitutes Exhibit H.
Dr Anthony Neale James, Consultant Urologist
84. On 16 August 2005, Dr James wrote to Dr Ryan, after seeing the veteran the previous day by Dr Ryan's referral, for recent minor bleeding in his urine. In passing he observed[154]:
... He is seventy-nine (79) and is a little bit vague and I noted that he has had a few minor CVA's [cerebrovascular accidents] this year. They seem to have effected [sic] balance and memory according to his partner...[155]
[154] Exhibit M, Folio 1 at paragraph 1.
[155] Exhibit M, Folio 1 at paragraph 1
85. Dr James was not called to give evidence at the hearing.
Ms Alexandra ('Cindy') Violet Dilworth, Speech Pathologist
86. In her report[156], Ms Dilworth recorded her observations of the veteran's dysphagia (swallowing difficulties) and cognitive and communication difficulties from the time that she first saw him by referral from Dr Lander on 29 November 2006 until just before his last admission into the Royal Brisbane Hospital in June 2007. At the hearing she explained that, in Australia, speech pathologists care for patients with swallowing problems because the same muscles are used for swallowing as for speech.
[156] Exhibit Q.
87. Ms Dilworth began her report by stating that, at the time that the veteran first saw her, soon after his first two Royal Brisbane Hospital admissions for his myasthenia gravis, his swallowing difficulties had "largely resolved". However, her initial assessment in the Royal Brisbane Hospital Speech Pathology Outpatient Clinic revealed that he had a "cognitive communication disorder", with "word finding difficulty, poor topic maintenance and difficulty determining the key points from context". She went on:
... The etiology of the communication deficit was unclear. His performance could have been consistent with a moderate dementia, acute delirium or a specific right hemisphere communication involvement. This latter possibly would normally have been related to a right hemisphere stroke and during the interview, Alison, his partner described transient episodes of left upper limb weakness, however there was no other indication for this diagnosis in the referral or medical chart.[157]
[157] Exhibit Q, Folio 1 at paragraph 3.
88. She opined that these features were inconsistent with being caused by myasthenia gravis.[158] During her evidence-in-chief she explained this opinion by stating that, because it is a motor disorder blocking the connection between nerves and muscles, myasthenia gravis does not cause cognitive and communication difficulties.[159]
[510] Exhibit Q, Folio 2 at paragraph 5; Transcript of Hearing, page 91 (lines 8 to 26).
[511] Exhibit R, Folio 24
[512] Exhibit R, Folios 204 and 213.
337. His third course of intravenous immunoglobulin treatment, (his second during his last hospital admission), began on 20 June, concluding on 24 June, and the first of his 'terminal' central sleep apnoea episodes resumed six days later, on 30 June.
338. Hence, we do not consider that there is any evidence that these three courses of intravenous immunoglobulin treatment for his myasthenia gravis can be shown to have contributed to the death of the veteran.
339. For the foregoing reasons, we are not satisfied beyond reasonable doubt that the death of the veteran was not war-caused.
DECISION
340. We set aside the decision under review and decide that the applicant is entitled to a war widow’s pension with effect from 5 July 2007.
341. We have already mentioned that the Hospital records of the terminal admission of the veteran were tendered on the second day of the hearing of the application, on the request of the Tribunal. In cases such as this, where the kind of death of the veteran is an important issue, we consider it to be at least desirable that such records be filed prior to the hearing. These records were very substantial, (numbering 218 pages with much detailed technical information) and had to be minutely examined before we could determine the application.
I certify that the 341 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member and Associate Professor J B Morley RFD, Member
Signed: ........................[Sgd]...........................................
Danielle Armstrong, Research AssociateDate/s of Hearing 24 September and 26 October 2010
Date of final submissions 26 May 2011
Date of Decision 22 July 2011
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Mr Terence O'Connor
Advocate for the Respondent Mr Jeff Kelly
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