Horwood and Repatriation Commission (Veterans’ entitlements)

[2017] AATA 87

Horwood and Repatriation Commission (Veterans’ entitlements) [2017] AATA 87 (31 January 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2015/0114

Re:Gloria Horwood

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member
Dr L Bygrave, Member

Date:31 January 2017

Place:Sydney

The Tribunal sets aside the decision under review dated 26 November 2013 and substitutes therefor, the decision that the applicant is granted the war widow’s pension with effect from 19 September 2013.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

Veterans' affairs - entitlements - war widow's pension - hypertension causing death - where hypertension caused by consumption of alcohol - whether there is a causal connection between consumption of alcohol and operational service - whether there is a reasonable hypothesis connecting death from hypertension with operational service - whether satisfied beyond reasonable doubt that the death was not war-caused - decision set aside and substituted

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 196B(14)(d), 120, 120A

CASES

Repatriation Commission v Deledio [1998] FCA 391, (1998) 83 FCR 82

Repatriation Commission v Tuite (1993) 39 FCR 540

Roncevich v Repatriation Commission (2005) 222 CLR 115

SECONDARY MATERIALS

Statement of Principles concerning cardiomyopathy No. 85 of 2015

Statements of Principles concerning hypertension, No. 63 of 2013
Statement of Principles concerning ischaemic heart disease (Reasonable Hypothesis), No. 1 of 2016

'Advisory from Disability Compensation Branch No 2/2000', Department of Veterans Affairs and the Repatriation Medical Authority

REASONS FOR DECISION

Mrs J C Kelly, Senior Member
Dr L Bygrave, Member

31 January 2017

THE REVIEWABLE DECISION

1. Mrs Gloria Horwood, the applicant, has asked the Tribunal to review the decision the Repatriation Commission made on 26 November 2013 refusing her claim for the war widow’s pension under the Veterans’ Entitlements Act 1986 (Cth) (the Act). That decision was affirmed by the Veterans’ Review Board on 27 October 2014.

   BACKGROUND

2. The following findings are not contentious. The applicant’s husband, Mr John Horwood, was born in 1926 and died on 18 September 2013. He enlisted in the Australian Navy on 18 May 1945. He had five months training at HMAS Cerberus and was then sent to HMAS Penguin to wait for a draft to a ship. He joined HMAS Bataan on 12 December 1945 and spent just under nine months in the ship in Australian waters and then five months on passage to Japan, service in Japan and passage back to Australia.  He remained in the ship until 24 February 1947 and was discharged on 18 April 1947.  His service is relevantly “operational” service under the Act. Therefore the standard of proof is that of reasonable hypothesis. Mr and Mrs Horwood met just after Mr Horwood turned 21 in November 1947. They were engaged in 1948 and married in 1950 and had three children, including Max who was born in 1956. The applicant suffered from hypertension at the time of his death. The parties agreed that the clinical onset of hypertension was July 1997.

3. In summary, before the hearing, the applicant’s contention was that her husband’s death was the result of his service. The connection with his service was that he began drinking alcohol because of his service, he suffered from hypertension as a result of his drinking, and his hypertension resulted in ischaemic heart disease (IHD), which was the “kind of death” Mr Horwood suffered. That contention depended on the Statements of Principles (SoP) for both hypertension and IHD being satisfied.

4. In the hypertension SoP (No. 63 of 2013), at least one of several factors listed in cl 6 “must be related to the relevant service rendered by the person” (cl 5).  Relevantly:

   6.  The factor 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 is: …

   (b) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension.

   THE PARTIES’ CONCESSIONS BY THE END OF THE HEARING

5. The applicant’s counsel made the following concessions:

   ·The applicant was not pressing the smoking aspect of her claim.

   ·Although not made explicitly, after the evidence of Associate Professor Haber and Professor O’Rourke, both very experienced cardiologists, and the respondent’s concessions, the applicant did not press ischaemic heart disease as a cause of death or rely on the relevant SoP, No. 1 of 2016.

6. The respondent’s counsel made the following concessions:

   ·There was material before the Tribunal pointing to Mr Horwood satisfying factor 6(b) of the Hypertension SoP, to the extent that he was consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension. 

   ·The respondent was not contending that the cause of death was cardiomyopathy and was not relying on SoP for cardiomyopathy (No. 85 of 2015).  The respondent accepted that the hypertension SoP applied because in this case, the cardiomyopathy was caused by hypertension. Those concessions were made after both Associate Professor Haber and Professor O’Rourke had given evidence. Professor O’Rourke gave evidence that the cause of Mr Horwood’s death was the effects of long standing high blood pressure, hypertension. He maintained that the hypertension was almost exclusively due to age and the stiffening of the aorta. Professor O’Rourke described the condition as hypertensive cardiomyopathy which he said was excluded from the SoP for cardiomyopathy. He explained that in general terms cardiomyopathy indicates some abnormality of the heart muscle which could be caused by a toxin like alcohol or a virus or the cause may be unknown. He explained that the distinction between the SoPs for hypertension and cardiomyopathy is that one deals with arteries and one deals with the heart muscle.

   THE ISSUE TO BE DETERMINED

7. After those concessions set out above had been made, the only issue for the Tribunal to determine was whether there was the necessary causal link between Mr Horwood’s drinking in the six months before the clinical onset of hypertension in July 1997 and his operational service in the period 1945 to 1947.

   THE LAW

8. There must be a causal connection between Mr Horwood’s alcohol consumption specified in factor 6(b) of the hypertension SoP and his operational service and not just a temporal connection: Roncevich v Repatriation Commission (2005) 222 CLR 115, per Kirby J at [55] and [56].

9. In Repatriation Commission v Tuite (1993) 39 FCR 540 Davies J (in agreement with the majority) said at page 541:

   … if an injury or disease is claimed to have arisen out of or been attributable to a serviceman’s camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred….

10. A factor causing or contributing to death is related to a person’s service if “it was contributed to in a material degree by, or was aggravated by, that service” (s 196B(14)(d) of the Act).

11. In Repatriation Commission v Deledio, the Full Federal Court set out the approach to be taken to apply the legislative scheme of ss 120 and 120A of the Act when a claim is made for a pension in relation to operational service:[1] 

    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.

    [1] [1998] FCA 391, (1998) 83 FCR 82

    THE TRIBUNAL’S CONSIDERATION

12. The respondent argued as follows. There is not material before the Tribunal pointing to the applicant’s service causing the applicant to commence drinking alcohol. The respondent accepted that there was a temporal connection but said that Mr Horwood’s statement in the 2009 alcohol questionnaire that he commenced drinking because of peer pressure does not automatically mean a causal connection without something more. It also argued that there was no material pointing to any causal connection between Mr Horwood’s service and his drinking habits later in his life and that there is no diagnosis or contention of alcohol abuse or dependence.

13. The respondent referred to the “Advisory from Disability Compensation Branch No 2/2000” (the Advisory) prepared by the Department of Veterans Affairs and the Repatriation Medical Authority which states:

    The search revealed only one epidemiological study that bears on the “habituation” issue, that is, whether a “habit” of alcohol drinking continues from the service environment into the community after discharge from service. In fact that paper suggested that not only was there no association with military service there is some evidence that military service produces the opposite effect.

14. The respondent accepted that the policy from the Department of Veterans’ Affairs is not binding on the Tribunal but submitted that the Tribunal would normally apply it unless it was unlawful.

15. Finally the respondent submitted that the material before the Tribunal is merely speculative, and in fact the general material obtained by the Department points away from the hypothesis.

16. The Tribunal has taken into account all the written and oral evidence before it and the written and oral submissions made on behalf of both parties in making the following findings.

17. The Tribunal accepts that there is material pointing to the applicant commencing drinking alcohol because of his service. It accepts that peer pressure is a cause and not just part of the setting in which he served. It does not accept that Tuite requires a contrary finding.

18. Other material before the Tribunal that also points to Mr Horwood’s service causing him some distress which contributed to his commencing and thereafter continuing drinking alcohol:

    ·Mrs Horwood said that her husband did not tell her a lot about his service but his brother explained that Mr Horwood was 19 at the time and had gone through some bad experiences. She said that he was stoic and could be moody.

    ·Mr Max Horwood, the son of the applicant and Mr Horwood, said that his father spoke about his war service vaguely, but did talk about how it broke him.  The Tribunal does not accept the respondent’s argument that that statement could refer to breaking Mr Horwood physically.  He worked as a carpenter for many years and built his own home which is not consistent with his being broken physically. 

    ·Mr Horwood’s older brother was shot and killed by the Japanese on 15 September 1943 while serving in New Guinea and Mr Horwood named his son after his brother. Mrs Horwood said that Mr Horwood’s mother left him, his father and brother straight after her son’s death. Mr Horwood did not talk about his brother’s death but only about when they were kids.

    ·The historian’s report shows that Mr Horwood had various opportunities to go ashore while in Japanese ports, including an opportunity to visit Hiroshima, among the compatriots of those who had killed his brother.

    ·The following is based on the historian’s report. There were opportunities for the applicant to consume alcohol during his service, subject to age eligibility, at shore establishments in Australia and on the Bataan. Beer issues were made on ships to eligible sailors but were not a routine event. He had the opportunity to consume alcohol onshore in Japan. The historian’s report states that there were from time to time shortages of beer in Kure but some of the troops soon found a source of sake which was a profitable venture. Beer was probably available from US sources on shore in Sasebo and Yokohama and could have been consumed by sailors on shore leave.

    ·The historian’s report says that Mr Horwood’s ship, HMAS Bataan, undertook several patrols to intercept Korean smugglers and illegal repatriates who were possibly infected with cholera, and prevent them from landing in Japan. Although the historian’s report indicates that those patrols were uneventful, that material points to the anticipation of such interceptions being stressful.

19. The Tribunal finds that there is material before it that points to the applicant’s drinking for the rest of his life being caused by his service.  In making that finding, the Tribunal notes that the respondent did not argue that the applicant did not start drinking alcohol during his service.  The evidence was against any such submission.  The Tribunal has taken into account that the evidence does not specify the age when drinking alcohol was permissible during the applicant’s service. The respondent Mr Horwood was 18 years of age when he joined the navy and 20 years of age when he was discharged. Even if the eligible age for drinking was 21 years, the applicant’s claim that peer pressure caused him to commence drinking during service, the opportunities to drink onshore with his colleagues, as well as illicitly on ships and naval onshore facilities, and Mrs Horwood’s evidence, point to his commencing drinking because of his service. 

20. The applicant’s drinking pattern is fairly consistent over his lifetime. The Tribunal does not accept the respondent’s submission that various life events caused his drinking to increase. It does accept that the applicant drank less when he was studying and building his house, but that was likely because he did not have the leisure time to drink. The Tribunal does not accept that the Advisory assists in this case. On the evidence of Mrs Horwood and Mr Max Horwood, Mr Horwood clearly enjoyed drinking alcohol and did so throughout his life after his service. The Tribunal does not accept that there needs to be material pointing to alcohol abuse or addiction. It is not in contention that Mr Horwood satisfies factor 6(b) of the hypertension SoP.

21. In making the above findings, the Tribunal has taken into account that there were some inconsistencies in the evidence of Mrs Horwood and Mr Max Horwood, particularly about the type of alcohol Mr Horwood was drinking at a particular time. However, taking into account that both Mrs Horwood and Mr Max Horwood were recalling what had happened over periods of 65 and 57 years respectively, and that Mr Max Horwood was not living with his father from the age of 23, those inconsistencies were not significant.  

22. The Tribunal makes the following findings. There is material before it that points to the hypothesis that Mr Horwood began drinking alcohol because of his service and consequently drank alcohol throughout his life which caused hypertension which caused his death. There is a SoP in force. The hypothesis fits the SoP. The hypothesis is reasonable. On the material before it, the Tribunal is not satisfied beyond reasonable doubt that Mr Horwood’s death was not war-caused.

23. For the above reasons, the Tribunal sets aside the decision under review dated 26 November 2013 and substitutes therefor, the decision that the applicant is granted the war widow’s pension with effect from 19 September 2013.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member and Dr L Bygrave, Member

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

Associate

Dated: 31 January 2017

Dates of hearing:	14-15 July 2016
Counsel for the Applicant:	Mr T Saunders
Solicitors for the Applicant:	Kemp & Co Lawyers
Solicitors for the Respondent:	Ms L Buchanan; Australian Government Solicitor