Hill and Repatriation Commission

[2002] AATA 136

DECISION AND REASONS FOR DECISION [2002] AATA 136

ADMINISTRATIVE APPEALS TRIBUNAL

Nº V2000/1539

VETERANS'     APPEALS       DIVISION

Re:            YVONNE RUTH HILL

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
  Dr P. Fricker, Member
Date:             5 March 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and in its stead decides that the death of the veteran, Osbourne Stanley Hill, was war-caused and the applicant is entitled to a widow's pension with effect from 22 April 1999.

(sgd) B.H. Pascoe
  Senior Member
  VETERANS' AFFAIRS — death from drowning after boating accident – whether reasonable hypothesis connecting death with ischaemic heart disease – whether ischaemic heart disease war-caused – whether satisfied factor in Statement of Principles
Veterans' Entitlements Act1986
Statement of Principles
   Instrument Nº 38 of 1999
Repatriation Commission v Deledio (1998) 83 FCR 82
Bennett v Repatriation Commission, Federal Court, 6 June 1997, 485/1997

REASONS FOR DECISION

5 March 2002  Mr B.H. Pascoe, Senior Member
  Dr P. Fricker, Member

1. This is an application to review a decision of the Veterans' Review Board ("VRB") of 29 November 2000 which affirmed a determination of the respondent dated 27 July 2000 denying a claim for a widow's pension after the death of the applicant's husband on 21 April 1999.

2. At the hearing the applicant, Mrs Yvonne Hill, was represented by Mr M. Croyle, of counsel, and the respondent by Ms J. McCulloch, an advocate with the Department of Veterans' Affairs. Evidence was given by Mrs Hill; her son, Mr R. Hill, and Dr A. Pitt, cardiologist. In addition to the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (T1-T23) (the T documents), the following documents were tendered by the parties:

   Statement of Mr Hill dated 4 January 2001 — Exhibit A1
   Statement of Mrs Hill dated 4 January 2001 — Exhibit A2
   Report of Dr Pitt dated 20 February 2001 — Exhibit A3
   Supplementary report of Dr Pitt dated 25 September 2001 — Exhibit A4
   Report of Professor R. Harper, cardiologist, dated 7 May 2001— Exhibit R1
   Report of Dr K. Bendell, pathologist, dated 4 July 2001 — Exhibit R2
   Clinical notes of Dr H. Lee, general practitioner — Exhibit R3
   Clinical notes of Goulburn Valley Hospital — Exhibit R4
   Clinical notes of Royal Melbourne Hospital — Exhibit R5
   Clinical notes of Shepparton Private Hospital — Exhibit R6

3. The late husband of Mrs Hill, Mr Osbourne Stanley Hill, served in the Royal Australian Navy ("the Navy") from 7 October 1942 to 21 September 1945 which constituted eligible war service under the Veterans' Entitlements Act 1986 ("the Act").  As he served overseas, the whole of his service was operational service.  The late Mr Hill died on 21 April 1999 at age 75 as a result of a boating accident on Lake Mokoan near Benalla, Victoria.  The cause of death shown on the death certificate was stated to be:

   Chronic immersion with pulmonary changes consistent with drowning, associated with severe triple vessel coronary atherosclerotic disease.

The coroner, without holding an inquest, found that the late veteran died in the following circumstances:

The deceased aged 75 on the 21/4/99 left Shepparton with his friend Robert Francis Rankin to go fishing on Lake Mokoan near Benalla.  They reached Lake Mokoan and put their boat on the water.  During the day the wind sprang up and apparently reached up to 20 knots, creating large waves on the lake.  At about 0030 hours on the 22/4/99, Mrs Hill contacted Police.  A search was immediately set up and Police went to the scene.  At daylight an upturned boat YA 126 was located by the SES in the trees on the north side of an open expanse of water.  There was no sign of the two fishermen.  At about 1636 hours on the 29/4/99 the body of the deceased was located among the trees on the north end of Lake Mokoan by Police.
AND I FURTHER FIND  No person contributed to the cause of death.

1. As the late veteran had operational service, section 120(1) of the Act provides that the death was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. As the claim was made after 1 June 1994, section 120A of the Act requires the Tribunal to assess the reasonableness of the hypothesis in accordance with any Statement of Principles ("SoP") issued by the Repatriation Medical Authority or any relevant determination under the Act. In this case the hypothesis advanced was that the veteran's drowning was caused by his ischaemic heart disease which in turn was the result of smoking cigarettes and the smoking was the result of war service.

2. There is no SoP relating to drowning but Instrument Nº 38 of 1999 is the SoP concerning Ischaemic Heart Disease.  Under this SoP, before a reasonable hypothesis has been raised, one of the factors must exist to connect the disease with a veteran's relevant service.  The factor relied upon in this case is 5(e), which states:

   5.. . .

   . . .

   (e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,

   (i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or

   (ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or

   (iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation; or

   . . .

The relevant definitions are:

"pack years of cigarettes or the equivalent thereof, in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes (being the "standard" cigarette pack contents) per day for a period of one calendar year, or
7 300 cigarettes.  One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight.  One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight.  Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
"cigarettes per day or the equivalent thereof, in other tobacco products" means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco by weight;
. . .

1. Mrs Hill said that her husband was a smoker when she met him in December 1945.  She estimated that he smoked 20 to 30 cigarettes a day until 1984 when he underwent surgery.  She said he stopped temporarily and resumed after recovering from surgery and continued until 1995.  He had told her that he commenced smoking during the war.  He was diagnosed with ischaemic heart disease after suffering chest pain and breathlessness while on holidays in July 1998.  Coronary bypass surgery was performed in November 1998.  Mrs Hill believed that he was still suffering symptoms subsequently and could not walk more than 200 metres without resting.

2. Mrs Hill said that her late husband left home at about 8:00 a.m. on 21 April 1999 to go fishing at Lake Mokoan with a friend, Robert Rankin.  She estimates that they would have been on the water by 9:00 a.m.  Her husband was an experienced fisherman who was very cautious and safety minded with boats.  He knew Lake Mokoan well and was aware of the potential for sudden wind gusts.  Mrs Hill said he was fanatical about everything being in place in the boat and would always take extra time to shelter from strong winds.  She understood that a witness had seen two persons in a boat crossing the middle of the lake.  She said that she could not believe that he would have steered directly across the open lake without a life jacket unless something was seriously wrong.  Her only explanation was that her husband had suffered a heart turn and that his friend Robert, a less experienced man, had taken control of the boat with the intention of getting to shore as soon as possible.

3. The late veteran's son, Mr Raymond Hill, said that he had fished regularly with his father on Lake Mokoan.  His father fished always in the same spot which was approximately 1 kilometre in a direct line from the boat ramp or approximately 3 kilometres if the boat followed the shoreline.  He said that trees provide shelter along the shoreline and his father inevitably travelled along that route when the wind blew up, it being the safest route.  He confirmed that his father was a very cautious man with boats and everything had to be done properly.  He said that it was uncharacteristic for his father to cross the middle of the lake in a strong wind and not to have put on a life jacket.  He understood that tackle boxes and other heavy objects from the boat were found in the middle of the lake.  The upturned boat and the bodies of the two men were found among the trees approximately 1 kilometre away.  His only explanation was that something had happened to his father and his friend Robert had taken control.  He said that he was aware of occasions in Robert's boat when Robert would hand control to his father in strong winds on the basis that his father had more experience and expertise.

4. Mr Raymond Hill said that his father had attempted to give up smoking on many occasions without success and there was a packet of cigarettes always on his workbench until the latter part of his life.  He maintained that, on his last fishing trip with his father in May 1988, his father was smoking.  It is noted that, in a statement provided by Mr Raymond Hill on 19 September 2000, he stated that his father was a heavy smoker, up to 20 to 30 cigarettes per day and that ". . . Dad continued to smoke up until about 1994".

5. Dr Pitt did not disagree with the autopsy findings that death was due to drowning but maintained that the presence of infarction whether recent or old was not excluded, nor was there any evidence provided about the state of Mr Hill's coronary artery grafts.  He said that blockages in bypass grafts would have resulted in the development of ischaemia or infarction.  Dr Pitt said that:

   . . . It is well recognised that in patients with coronary heart disease a common event is a major arrhythmia either fatal or non-fatal.  Further even when the arrhythmia is fatal it is well documented that there may be no post-mortem findings of myocardial infarction.  

Dr Pitt noted that there was paracetamol in the blood of the late veteran and it could be hypothesised that he had suffered pain at some site, such as pain in the chest.  Dr Pitt was not aware of the type of grafts used in the late Mr Hill, whether venous or arterial, but that the likelihood of early graft closure, although uncommon was not rare.  He believed that it was possible that left ventricular failure was a cause of pulmonary oedema and that there was severe coronary disease that may have led to an acute cardiac event prior to or on entering the water.

1. Professor Harper felt that a scenario of a non-fatal cardiac event was a possibility but he could find no direct or indirect evidence to support such a contention.  He said that it was unusual but not impossible for a person to suffer a heart attack or a severe episode of ischaemia, or a major arrhythmia four months after apparently successful bypass surgery.  He considered it unusual that no mention of the state of bypass grafts was made in the post-mortem findings.

2. Dr Bendall, who conducted the post-mortem, believed that there was good prima facie evidence that Mr Hill was alive at the time of immersion from the microscopic finding in the lung and liver, and the mud beneath his fingernails.  He said that it was not possible to either exclude or confirm the presence of a major anti-mortem occlusive event in the coronary artery graft.  He said that the only way that the state of the grafted vessels could have been assessed would have been to remove the heart intact without stripping the pericardium and to have injected the coronary artery system.  As this was a forensic necropy analysis there appeared to be no legitimate reason for performing the procedure.  He believed that, if he had been aware of an intention to claim compensation, an investigation of this type could have been undertaken.  However, it was not.

3. It was submitted for the applicant that there was a reasonable hypothesis that some cardiac event resulted in either direct death of Mr Hill, incapacity to save himself after the boat capsized or panic by him or his companion resulting in taking an unsafe way back to shore.  It was said that Mr Hill was cautious and particular in boats and water, was particularly careful in bad weather, never fished in the middle of the lake and used a life jacket when conditions were bad.  Consequently, it was said, something unexpected had happened to produce the unusual course of events of taking the boat through the centre of the lake during bad weather without a life jacket.  It was submitted that the likely precipitating event was a cardiac problem and that the late veteran's ischaemic heart disease resulted from war-caused smoking and the relevant factor in the SoP was satisfied.

4. For the respondent, it was not disputed that the late veteran suffered from ischaemic heart disease nor that he had been a smoker and he had commenced smoking during service.  What was disputed was the quantity of cigarettes smoked and the date of cessation.  It was said that the history taken on admission to the Royal Melbourne Hospital in November 1998 for bypass surgery showed that he was an ex-smoker who had smoked five cigarettes per day and had ceased in 1978.  Clinical notes of the veteran's treating general practitioner in early 1987 states ". . . reformed smoker six years" and ". . . has given up fags +7 years".  It was submitted that the most reliable evidence of smoking history was that given by the veteran himself in 1998 and that evidence did not satisfy the requirements of the SoP for the ischaemic heart disease to be accepted as war-caused.  It was submitted, further, that drowning was the cause of death and any suggested contribution of a cardiac event was no more than mere speculation and did not amount to a reasonable hypothesis.

5. The four steps involved in decision-making in cases such as this were outlined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (at pp.97-98) 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.

6. Here the applicant raised that smoking was war-caused, smoking led to ischaemic heart disease and that disease caused or contributed to death by drowning.  In the terms of the first step in the process we are satisfied that a hypothesis connecting the death with circumstances of the veteran's service has been raised.   There is no SoP relating to drowning but there is in force a SoP relating to ischaemic heart disease.  The relevant factor in this SoP is the smoking by the veteran, which is accepted as being connected with his service.  At this third stage of the process no fact finding is required.  However, it is necessary to consider whether the hypothesis connecting the veteran's death by drowning with the ischaemic heart disease is reasonable.

7. In Bennett v Repatriation Commission, Federal Court, 6 June 1997, 485/1997, the veteran embarked alone on a fishing expedition in his boat from Port Albert.  He was seen at sea during the afternoon during which a strong wind blew.  He failed to return and the following morning his empty boat was found on the shore.  Nearly two years later, skeletal remains, believed to be those of the veteran, were found.  There was no indication of the cause of death.  The veteran had significant accepted war-caused disabilities of both feet and a hypothesis was raised that the conditions had caused him to fall into the water or to be unable to swim or reboard the boat.  On appeal from a decision of this Tribunal, Heerey J found that the veteran's death was war-caused.  His Honour accepted that the hypothesis raised was one of many possible causes of the death, that the known facts pointed to it as a possibility and there were no facts pointing to it not being a possibility so that a reasonable hypothesis had been raised.  In this case, we are satisfied from the evidence that there were unusual circumstances surrounding the drowning of Mr Hill.  The presence of the boat in the middle of the lake where he never fished, the strong winds and the normal procedure of Mr Hill in such circumstances, the absence of life jackets and the doubt as to who was in control of the boat all indicate a possibility of some problem having eventuated.  Certainly, a cardiac problem is only one possibility, it being also possible that some misfortune had occurred to his companion, but there are no facts pointing to it not being the possible cause of the ultimate overturning of the boat and the drowning.  Consequently, we are satisfied that the material before us does raise a reasonable hypothesis.

8. Having made that finding, it is then necessary to move to the fourth step in the process.  This involves a consideration of whether the Tribunal can be satisfied beyond reasonable doubt that the condition of ischaemic heart disease was not war-caused, that is, whether the relevant factor in the SoP was satisfied.  It must be acknowledged that we have some reservations about the evidence given by Mrs Hill and Mr Raymond Hill.  Mrs Hill said that her husband had difficulty walking.  In a letter dated 8 January 1999 to the veteran's general practitioner, Dr N. Nanayakkara, consultant physician, said that ". . . His exercise tolerance seems to be quite good and complains of no chest problems".  Mrs Hill said that the veteran continued smoking until 1995 with a brief cessation in 1984.  Mr Raymond Hill said that his father was still smoking in 1998.  In a statement prepared by Mr Raymond Hill on 19 September 2000 (T18) he stated that ". . . Dad continued to smoke up until about 1994".  The consistency of evidence of histories taken by doctors and hospitals is that the veteran ceased smoking in either 1978 or the early 1980s.  It was put by Mr Wicks that it was not untypical of smokers who have been advised to give up smoking cigarettes to not admit to medical practitioners that they continue to smoke.  However, if the veteran was smoking 20 to 30 cigarettes a day it is difficult to believe that an astute medical practitioner, particularly his general practitioner seen on a regular basis, would not recognise that he remained a smoker.

1. The evidence of the veteran's widow and son was that, from 1942 or 1943, the veteran smoked the equivalent of 20 to 30 cigarettes a day and continued at that rate until 1995 or 1998.  The notes of the Royal Melbourne Hospital say that he smoked 5 cigarettes per day and ceased in 1978.  There is no evidence of the clinical onset of ischaemic heart disease prior to 1998.  Consequently, to satisfy the factor of the SoP, the veteran had to have smoked between 1 and 5 pack years up to 1993, between 5 and 20 pack years up to 1983 or more than 20 pack years to 1978.  On the evidence before us we are not satisfied on the balance of probabilities that the veteran ceased prior to 1978 and that he did not smoke 20 to 30 cigarettes per day for the 25 years prior to that.  As a consequence his smoking satisfies clause 5(e)(iii) of the SoP.  It is unnecessary for us, in the circumstances, to make a finding of the actual date of cessation although we would be of the opinion that it was no earlier than 1984 and, in all probability, much later.

2. As a consequence of our findings, the decision under review should be set aside and in its stead decide that the death of the veteran was war-caused and that the applicant, Mrs Hill, is entitled to a widow's pension with effect from 22 April 1999.

   I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mr B.H. Pascoe, Senior Member
   Dr P. Fricker, Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of Hearing:  23 November 2001
   Date of Decision:  5 March 2002
   Counsel for the Applicant:           Mr M. Croyle
   Solicitor for the Applicant:           Messrs Williams Winter & Higgs
   Solicitor for the Respondent:       Ms J. McCulloch, departmental advocate