Jolly and Repatriation Commission - [2001] AATA 940

DECISION AND REASONS FOR DECISION [2001] AATA 940

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/973

VETERANS' APPEALS DIVISION       )
           Re      Pauline Jolly
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr MEC Thorpe, Member

Date14 November 2001
PlaceSydney

Decision The Tribunal decides that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside. In substitution therefor, the Tribunal decides that Mr Jolly's death was war-caused and Mrs Jolly is qualified to receive a War Widow's Pension from and including 15 January 1999.

.........................................
Ms S M Bullock
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – War Widow's Pension – Operational Service – Helicobacter Pylori Infection – Non-Hodgkin's Lymphoma

LEGISLATION
Veterans' Entitlements Act 1986 ss 8, 9, 119, 120(1), 120(3), 120A

AUTHORITIES
Brown v Dunn (1893) 6 R 67
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bey (1997) 79 FCR 364
Harris v Repatriation Commission [2000] FCA 1687
Harris v Repatriation Commission (2000) 62 ALD 174
Dixon v Repatriation Commission (1999) 59 ALD 315; (1999) 29 AAR 235

REASONS FOR DECISION

14 November 2001 Ms S M Bullock, Senior Member Dr MEC Thorpe, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Pauline Jolly of a decision of the Repatriation Commission ("the Commission") dated 29 April 1999 (T2), as affirmed by the Veterans' Review Board ("the Board") on 13 March 2000 (T16), that the death of her husband, Mr William Lennox Jolly, was caused by his service.
A hearing was held before the Tribunal in Sydney on 20 and 23 July 2001. Mrs Jolly provided oral evidence. She was represented by Mr M Vesper of Counsel. Oral evidence was also provided by Mr Mark Lennox Jolly, the son of Mr and Mrs Jolly, and by Mr Ken G Ellis, a friend of the family. The Respondent, the Commission, was represented by Mr Peter Godwin, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T-Documents", T1-T20) and the following exhibits:
Exhibit Number    Description Date
T1 – T20 Section 37 Statement and Documents. Various
A1      Report of Dr R J Butler, Consultant Physician. Supplementary Report of Dr R J Butler. 11 January 2001 26 February 2001
A2      Report of Dr P Katelaris, Consultant Gastroenterologist and Clinical Senior Lecturer, Gastroenterology Unit, University of Sydney.    5 February 2001
A3      Report of Dr C Tiley, Clinical Haematologist, Department of Pathology, Central Coast Area Health Service. Further Report of Dr C Tiley.     4 January 1999 15 January 1999
A4      2 Letters from Mrs Pauline Jolly, Applicant.       18 May 2000
A5      Letter from Mrs Pauline Jolly, "To Whom It May Concern".     12 July 2000
A6      Medical Certificate of Cause of Death, signed by Dr Melanie Keel.   14 January
R1      Report of Professor J A Levi, Director, Department of Medical Oncology, Royal North Shore Hospital and Consultant Physician.         26 April 2001
R2      Clinical Notes of Dr J P Sturmberg, General Practitioner.       Various
R3      Clinical Notes of Dr D Bliss, Cardiologist.           Various
R4      Clinical notes from Gosford Hospital, Central Coast Health Service.          Various
R5      Report of Dr C Tiley, Clinical Haematologist.     20 July 2001
Issues
The issues to be determined in this matter are:
(a)Whether Mr Jolly's death was caused by his war-service;
(b)Whether the relevant Statement of Principles for Ischaemic Heart Disease, Instrument Number 80 of 1998 is satisfied;
(c)Whether the relevant Statement of Principles for Non-Hodgkin's Lymphoma, Instrument Number 69 of 1997 is satisfied

Service

Mr Jolly served in the Australian Army from 2 July 1940 to 4 December 1945 during World War II (T2 p3). This period constitutes eligible war-service and because he served overseas in the Middle East and New Guinea, the whole of his service is operational service as defined in the Act.
Legislation
A determination in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act"). Section 8 of the Act deals with war-caused death and as relevant, provides:
"8 War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e) the injury or disease from which the veteran died:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note:The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise.
…"
As relevant, section 9 of the Act deals with war-caused injuries or diseases and provides:
"9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
Section 119 of the Act reflects the administrative rather than the judicial nature of decision making under the Act and the need to operate with flexible procedures, not technical rules. It also recognises the difficulties that claimants may have, including providing details of matters which occurred many years ago, the paucity of official records and the frailty of human memory.
The standard of proof for Mr Jolly's operational service is that of the reasonable hypothesis, applying subsections 120(1) and 120(3) of the Act which provide:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused
disease ; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
The Tribunal is also required to apply section 120A of the Act and must therefore assess the reasonableness of any hypotheses in accordance with any Statements of Principles issued by the Repatriation Commission ("RMA) or any relevant determinations under the Act. Statements of Principles set out various factors, one of which, as a minimum, must exist in order to establish causation between, in this matter, Mr Jolly's death and his war service.
Accordingly, in relation to Mr Jolly's case, the following Statements of Principles are considered to be relevant and agreed to by the parties:
(a)Statement of Principles concerning Ischaemic Heart Disease, Instrument Number 80 of 1998;
(b)Statement of Principles concerning Non-Hodgkin's Lymphoma, Instrument Number 69 of 1997.

The Tribunal notes that the later relevant Statements of Principles contain factors in almost identical terms as those relied upon by the parties.
Background

The information contained within this section is provided by way of background and the facts contained within are not disputed.

Mr and Mrs Jolly married in 1948 (T16 p91).
In January 1999, Mr Jolly was found to have a malignant B-cell lymphoma, diffuse large cell type, on investigation of a long history of dysphagia and significant weight loss (T11 p57). Mr Jolly was found to have a posterior mediastinal mass which was biopsied at endoscopy indicating the above pathology. Mr Jolly was commenced on standard chemotherapy with "cyclophosphamide, epirubicin, vincristine and prednisolone" at reduced doses in view of his age and impaired left ventricular function, as reported by Dr Tiley on 16 March 1999.
Early in the course of his chemotherapy, Mr Jolly deteriorated acutely and died suddenly on 14 January 1999 at Gosford Hospital. The cause of death, as stated on Mr Jolly's Death Certificate and as certified by Dr M Keel, the Certifying Medical Practitioner, was:
(I) Cardiac arrest 12 hours and
(II) Lymphoma.
(T11 p55)
Mr Jolly had no conditions accepted as war-caused for the purposes of the Act. He was not therefore, in receipt of a Disability Pension.
Mrs Jolly lodged a claim for War Widow's Pension on 14 April 1999, stating:
"…I am 75 years of age, 170 cm tall and weigh a mere 40 kg. Recently one of my young grandchildren said to me "Nanna you're anorexic". I have a debilitating heart ailment and in 1989 I had 30 cm of my bowel removed. I have suffered from diverticulitis for many years. Throughout the last 10 years of my late husband's life I have suffered from hypertension. For the last 3 years I was paid a Carer's Allowance." (T11 p45)
In response to Question 24 in the Claim Form regarding the Applicant's belief as to whether the veteran's service caused or contributed to his death, Mrs Jolly stated:
"The answer to question no 24 is contained in the attached summary."

Included in attachments to the claim for War Widow's Pension was a detailed statement from Mrs Jolly and Mr Ken Ellis, a family friend representing her in the matter. Mrs Jolly's contention was that the development of her late husband's malignant lymphoma was attributable to certain circumstances or conditions that could be associated with her late husband's war-service. Mrs Jolly and Mr Ellis contended that Mr Jolly had a war-related respiratory condition which contributed to his death. It was further contended that the effects of passive smoking on Mr Jolly were not fully considered by the Commission. The Commission also did not consider the effects of the combination of desert dust and active and passive smoking.

On 29 April 1999, the Commission decided that the death of Mr Jolly was not related to service. The Commission found that the cause of death "as being directly associated with a Malignant Lymphoma (Diffuse Large Cell Type)" (T2 p4). In the Commission's view, there were no circumstances or conditions noted from within Mrs Jolly's contention or elsewhere within the available documented evidence that were covered by any of the factors listed within the RMA's Statement of Principles issued for this condition. The Commission stated that the evidence did not raise a reasonable hypothesis connecting the death of William Jolly and operational service. Therefore the Commission was unable to accept that Mr Jolly's death was war-caused.
On 30 June 1999, Mr Ken Ellis, in his capacity as Mrs Jolly's representative, lodged an application for review to the Board on her behalf (T13 p75). On 13 March 2000, the Board affirmed the Commission's decision, applying the Statements of Principles concerning Non-Hodgkin's Lymphoma and Ischaemic Heart Disease (T16). The Board concluded that the medical and other material before it did not raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act and therefore it was satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there was no sufficient ground for determining that the veteran's death was war-caused (T16 p93).
On 22 June 2000, Mrs Jolly lodged an application for review to the Tribunal (T1).

Evidence of Mrs Jolly

In relation to Mr Jolly's smoking history, Mrs Jolly told the Tribunal that her husband went to the Club with his veteran "mates" about four times per week between 5.30 and 7.30 p.m., where they would have beer and cigarettes. Mrs Jolly told the Tribunal that she could smell cigarette smoke on her husband's clothes and breath and at night in bed she would turn to the other side every couple of nights because her husband's breath was so bad.
Mrs Jolly stated to the Tribunal that she "went mad" on her husband for smoking, especially in the early years of the marriage, but he still smoked. As the years went by and in fact early in the piece, about the 1950s, she realised he was not going to change as he was set in his ways, she told the Tribunal. Mrs Jolly added that she stopped raising the issue and her husband's smoking continued unchanged over the years, as she could still smell the smoke on his breath. Mrs Jolly could not say whether her husband had considered if his smoking had had much impact on his condition, as there was not much information about smoking at that time. Mrs Jolly stated that she attended the doctors with her husband most of the time, but the doctors did not ask her about Mr Jolly's smoking in his presence, only after her husband had finished with his appointment. For example, Dr Sturmberg did not want to mention the smoking to her husband as he knew this would upset him.
In 1978, Mrs Jolly told the Tribunal that she and her husband moved to Bateau Bay and 12 years later, Mr Ellis and his wife also moved there. Mrs Jolly stated that her husband and Mr Ellis were good friends who visited each other at home and went golfing on a regular basis until the 1990s when her husband became sick.
In relation to Mr Jolly's general health, Mrs Jolly told the tribunal that during the years her husband was working, he had "gastric", but although he would occasionally come home with upset stomach, it was not that bad and he would take "mylanta" for it. The possibility of her husband having an ulcer was raised by Dr Sturmberg in 1995, but her husband did not make a fuss about it to her, sometimes mentioning it but not keeping on about it. Mrs Jolly stated that after retirement, Mr Jolly continued drinking with his friends, sometimes about five days a week. However Mrs Jolly explained that sometimes her husband experienced increasing problems with his stomach. He would occasionally have to lie on the ground to relieve his stomach, even when there were visitors, although he was not one to complain.
When Mrs Jolly was referred to T16 p91, where she had stated to the Board that her husband "had stopped and started smoking on a number of occasions, until he finally stopped in the early 1950s," she explained that she had thought he had continued to smoke because she could smell cigarette smoke on his breath, even though he had said that he had stopped. She further stated that she had not asked him about this because she was sick at the time and that she "could not keep nagging him," because this would cause arguments. When Mrs Jolly was asked why it was that the first time she had mentioned that she had known that her husband had continued to smoke was at the hearing, she replied that it was because it was the first time she had been asked.
In relation to her husband's 10 May 1988 claim for treatment and pension, Mrs Jolly told the Tribunal that she had been aware of the claim but not what it was about, since if she were to have asked her husband about it, he would have said. "Nothing. It doesn't concern you." Mrs Jolly agreed that after lodging this claim, her husband had seen medical specialists and had gone to Concord Hospital, but she could not get any of the specialists' reports. Mrs Jolly told the Tribunal that she would ring Concord Hospital every couple of days, but would be told that her husband's reports were mislaid. She stated that she believed that the Hospital staff did not want to tell her anything and her husband could not speak on the phone because of his coughing. Mrs Jolly explained to the Tribunal that her husband's coughing which had started in the late 1970s, was very serious but they did not know until later that it was related to cigarette smoking. She added that in the two weeks that her husband had spent in Concord, she did not see the doctor who attended to her husband and that she could not get anywhere with the Hospital.
Mrs Jolly also explained to the Tribunal that the reason for the two weeks of testing in Concord Hospital was for her husband's heart and reflux problems and that prior to his entering hospital, he had symptoms of reflux and coughing when he would lose his breath. Mrs Jolly further explained that in the last five years of his life, her husband could not even leave the house because of shortness of breath. Her husband retired at age 58 and they had moved to Bateau Bay because they had friends there and they wanted to get out of the city and "the rushing way of life." Mrs Jolly stated to the Tribunal that her husband had not mentioned that his wish to move was partly for his health but because "he had wanted to get out of the rush of the inner city." When Mrs Jolly was referred to her husband's statement in his 1988 claim that he "moved away from the pollution of Alexandria and Mascot area" (T4 p22), she replied that those areas had never been the best and that the air pollution "was starting to get bad there". In response to the question as to why her husband had not taken any further action following his lack of success with his 1988 claim, Mrs Jolly explained that as he was getting sick, he had not wanted the "hassle" of continuing, he was not a person to cause trouble and she could not continue to "nag".

Mrs Jolly told the Tribunal that Mr Ellis had discussed her husband's smoking with her and she had told him that she had known that her husband was still smoking. Mrs Jolly confirmed that Mr Ellis had helped pursue her husband's second claim for pension and that he had discussed this with her son Mark, who had smoked with his father from the time he was a teenager. Mrs Jolly stated that Mark knew a lot more about the cigarette smoking than she did as Mark, his father and Ken Ellis "did things together". Mrs Jolly explained that Mark is still a heavy smoker and that her daughter also smokes, but that she would not have them smoking in the house and her husband also would never smoke in the house or where she could see him because he did not want her to know that he smoked.
When the Tribunal indicated that there was scant reference to Mr Jolly's continued smoking past 1950, as well as a difficulty in finding any absolute reference by the doctors to Mr Jolly's smoking, Mrs Jolly stated that her husband had probably told his doctors that he was smoking but that he did not want her to know. When Dr Sturmberg had asked her if she knew that her husband had been smoking, and she replied that she did, Dr Sturmberg told her, "You're not supposed to know," Mrs Jolly stated to the Tribunal, adding:
"When you live together for 50 years, I didn't like arguing. My husband wasn't aggressive. He was smoking but he didn't cause trouble for me."

Mrs Jolly further stated to the Tribunal that her husband was supposed to have stopped smoking from 1988 when Dr Sturmberg became his general practitioner, but he continued smoking whilst still a patient of Dr Sturmberg until 1994.

When the Tribunal asked Mrs Jolly what had made her husband so sick when a CT-thorax axial scan of 19 October 1995 demonstrated no hilar mass, particularly in the right thorax (Exhibit R2 p60), she replied that although her husband was definitely not smoking in 1995, he was getting very sick at the time. Mrs Jolly further stated that in 1998 an X-ray showed a lymphoma present and her husband was having blood tests every week, although nothing showed up until two weeks before he died.
Mrs Jolly informed the Tribunal that she did not work after getting married until the late 1960s and the early 1970s, as her husband was away a lot for two to three weeks at a time with the semi-trailers for about five/six years and she needed to look after the children. Mrs Jolly added that when her husband had finished with the semi-trailers, he began working in a motor dealership selling trucks. He gave this away because his coughing was embarrassing for the customers. When Mr and Mrs Jolly first went to Bateau Bay, her son opened a small shop in which Mr Jolly worked, following which Mark had his own tourist coach business. The Tribunal asked Mrs Jolly whether she knew if her husband was smoking when they had first married and were living with her mother and father. At that time, there was the commencement of a "No Smoking Rule" in her parent's house. Mrs Jolly stated that she did know if her husband smoked because he was always smoking quite a bit, although he would not generally smoke in her presence when they were going out. Mrs Jolly added that later in life when they would go out socially to friends' houses, her husband would still go outside to smoke. Mrs Jolly could not recall the last time when her husband smoked when they were out socially. She could recall though the last time she "nagged" her husband about his smoking and this was in 1990 when Mr Jolly was becoming significantly sick and irritable. Mrs Jolly added that although her husband was not a person to answer back, he never denied that he was smoking because he knew in his heart that she would have had to have known. Although Mrs Jolly would stay back after her husband's appointments to talk to Dr Sturmberg, he did not indicate to her that he would do anything about her husband's smoking. In 1993, Dr Sturmberg said he could not do anything for Mr Jolly because the damage was done. Mrs Jolly added that she did not accompany her husband to every doctor he saw but only went with him to Drs Sturmberg and Bliss.
In relation to her husband's gastric and reflux condition, Mrs Jolly stated that she did not notice this as a problem until about the early 1980s. Mrs Jolly described her husband's symptoms "as a lot of burping after eating with heartburn", but it was not until he was in hospital before he died that he was getting a lot of pain in his chest. In relation to the possibility raised by Dr Sturmberg in 1990 that her husband had an ulcer, Mrs Jolly stated that Dr Sturmberg did know about this. Mrs Jolly also stated that although her husband did not talk about his diarrhoea, he did talk about his other "bad conditions" such as his "bad eye" from the sand in the Middle East.
The Tribunal stated to Mrs Jolly that it needed to come to terms with the information provided by her as contrasted with her husband's statements. There are obvious differences in what her husband had reported about his cessation of smoking. Although Mr Jolly had clearly been a reticent person, there was also clear evidence that he had said that he had given up smoking much earlier than being proposed by Mrs Jolly. In response to the Tribunal's question as to whether she was the mainstay of the family, Mrs Jolly replied that she would voice her opinions quite a bit and she had to be strong. Mrs Jolly was further asked why it was that although she had told some people about her husband's smoking, it was only much later that she told those in determinative organisations of her husband's continued smoking. Mrs Jolly replied that after her husband died, she was being treated for depression with "Neurolax" and other antidepressants which were then stopped because of the side effects including "being giddy, nausea" and her being a "nervous wreck". Mrs Jolly added that at the 13 March 2000 Board hearing, she was on medication.
In relation to her evidence to the Board about her husband's cough (T16 p91), Mrs Jolly confirmed that his coughing was bad and that she thought it had killed him. It was only after talking about her husband's death to a doctor that she realised that smoking was a factor. When Mrs Jolly was referred to her letter of 18 May 2000 (Exhibit A4), where she mentioned her husband's smelling of tobacco, she explained that at that time her son Mark had told her "a lot about what I didn't know". She learnt that Mark would smoke in the Club with his father. Mrs Jolly added that she did not discuss this with Mark straight after his father had died because he had not wanted to talk about it as he was grieving for his father. In 2001, Mark told her the truth after her depression had lifted.
Mrs Jolly informed the Tribunal that it was Dr Tiley who had told her about her husband's smoking and the truth about what it did to her husband and that the smoking had caused all his health problems. Mrs Jolly added that in hospital her husband had been too ill for Dr Tiley to talk to him or to her but after her husband's death, Dr Tiley told her everything. Mrs Jolly further stated that although in early 1999 she had not thought much about the effect of the cigarettes, when she saw Dr Butler again she did appreciate the significance of her husband's smoking. However at that time she was still grieving and had depression, but once she got over this she could attend to the issue and she later saw Dr Butler in late 2000.
Evidence of Mr Kenneth George Ellis
Mr Ellis informed the Tribunal that his wife and Mrs Jolly are cousins. Mr Ellis is a retired Police Officer. His occupational history is that he was a Police Prosecutor for 20 years, then joined the Commonwealth Police, retiring from the Police Force in 1972/73. Mr Ellis is also a veteran who is in receipt of a pension at the Intermediate Rate. Mr Ellis has helped seven or eight applicants in their claim for a Disability Pension, including claims for ischaemic heart disease. Mr Ellis had assisted Mrs Jolly at the Board Hearing and took the "lion's share" of the direction of the case. Mr Mark Jolly was not involved in that case before the Board.
Mr Ellis first met Mr Jolly in 1947 and they then met regularly as a family. From about the 1960s, Mr Jolly and Mr Ellis played golf together every two or three months up until 1987.
Mr Ellis recalled that Mr Jolly smoked and furthermore, Mr Ellis could not recall a time when Mr Jolly did not smoke between 1960 and the 1990s. Mr Ellis stated that he would not describe Mr Jolly as a "chain smoker".
Mr Jolly's and Mr Ellis' golf games would take approximately four and a half to five hours to play 18 holes. During this time, Mr Jolly would smoke one cigarette at each tee. After the game, Mr Jolly and Mr Ellis would have a drink at the golf club and at that time, Mr Jolly would consume four or five glasses of beer. He would then smoke four or five cigarettes. Mr Ellis explained that Mr Jolly would smoke more when he consumed alcohol.
The central issue which Mr Ellis proposed to the Board was that it was Mr Jolly's respiratory problems which led to his death. In this regard, Mr Ellis considered that Mr Jolly's service in the Western Desert caused him to inhale great amounts of dust which then caused him to develop a continuing cough.
At the Board hearing, Mr Ellis did not think Mr Jolly's smoking was the focus and certainly, he did not deal with this in any great detail before the Board. Mr Ellis told the Tribunal that he did not take Mr Jolly's smoking history into account when he looked at the relevant Statement of Principles. However, having read documents about smoking, Mr Ellis stated that he had raised with Mr Jolly his various statements that he had ceased his smoking in the 1950s. Mr Jolly responded that Mr Ellis should know the reason why he had stated he had ceased smoking and that was that Mrs Jolly forbade smoking. It was common knowledge, Mr Ellis informed the Tribunal, that Mrs Jolly had issued "instructions" to Mr Jolly not to smoke in the house or in her presence. Mr Ellis opined that Mr Jolly was very sensitive to Mrs Jolly's concerns about smoking. Mr Jolly was always concerned that his wife might find out that he was smoking. Mr Ellis noted that Mrs Jolly was well able to make her strong feelings and beliefs felt. Mr Ellis explained that "Mr Jolly did not want any eruptions in the marriage". In this regard, Mr Ellis opined that Mr and Mrs Jolly had quite a good marriage.
Mr Ellis stated that he first became aware that Mrs Jolly knew of her husband's smoking when she made statements about such matters to her Legal Aid Solicitor. Mr Ellis also saw a statement by Dr C Tiley, Clinical Haematologist, which made Mr Jolly's smoking a much more relevant issue in terms of his Disability Pension claim. Mr Ellis did not recall Mrs Jolly informing the Board that Mr Jolly stopped smoking in the 1950s (T16 p91). At the Board Hearing, Mrs Jolly was a "mess" because not only was she still grieving the loss of her husband but she was also physically sick and on medication. Mr Ellis did not specifically recall the cessation of Mr Jolly's smoking being discussed at the Board, but he did recall that he had made a point about passive smoking. This was also mentioned in a statement which he and Mrs Jolly wrote (T11 p69).
In January 2001, Mr Ellis became much more concerned to find out about Mr Jolly's smoking, particularly as Dr Butler had questioned Mrs Jolly about her husband's smoking. To find out more, Mr Ellis contacted Mr Mark Jolly, Mr and Mrs Jolly's son. Mr Ellis also contacted Mr Jolly's friends and acquaintances at the RSL Club. As a consequence, Mr Ellis stated that he became aware of a very different and more constant smoking history.
On 8 September 1999, Mr Ellis submitted further evidence in the form of a report from Dr C Tiley. The report was dated 28 May 1999. Mr Ellis could not explain the length of time between May 1999 and September 1999 when the report eventually arrived.
In 1990, Mr Ellis noted that Mr Jolly reduced his food-intake and on social occasions when Mr and Mrs Ellis visited and Mrs Ellis cooked a meal, she would prepare special dishes for Mr Jolly. In the middle of meals, Mr Jolly would often lie on the floor despite there being guests. It was like a party trick, Mr Ellis noted, although it was clear to Mr Ellis that Mr Jolly was in pain and distressed on such occasions. Such occurrences seemed to happen more frequently, Mr Ellis observed.
Evidence of Mr Mark Jolly
Mr Mark Jolly was born on 18 October 1952. He has an older sister and he grew up in Burwood. When at school, Mr Jolly often helped his father when he was working. During the 1950s and 1960s, he would travel with his father and Mr Mark Jolly recalled that his father would smoke on such occasions. As a teenager, Mark Jolly would "pinch cigarettes" from his father's golf bag. He would caddy for his father on occasion and recalled that his father constantly smoked on the golf course. Mr Mark Jolly did not consider his father a "chain smoker" but a "heavy smoker". During the course of one round, Mark further recalled that his father would smoke half a packet of cigarettes in two or three hours. Mark Jolly was also allowed to enter some parts of the golf clubhouse and he also observed his father smoking at those times.
In his late teenage years, Mr Mark Jolly and his father were both members of the Coogee-Randwick Swimming Club. They would swim on Sundays after which there was a barbecue and Mr Jolly would smoke. Mark Jolly noted that the more alcohol Mr Jolly consumed, the more cigarettes he would smoke. Mr Mark Jolly recalls that in a one-hour period, his father could smoke four or five cigarettes and the Sunday social occasions would last five to six hours.
From 1971 until 1978, both Mr Jolly and his son became members of a Billiard and Snooker Club and he would spend three or four hours with his friends. Mr Jolly was on the Club's committee and he would often bring his son Mark with him. During the meeting he would often open a second packet of cigarettes, having smoked one packet at work.
In 1979, Mr Mark Jolly married and he and his wife moved to the Central Coast, initially to live with Mark's parents but later, the couple were able to move into their own home. After that time, Mark Jolly was a heavy vehicle driver and he would meet his father after work at the Tuggerah Lakes Memorial Club, where Mr Jolly and Mark would spend three or four hours each afternoon. During this period, Mark Jolly recalled that his father was smoking between four and six cigarettes per hour.
In 1981, Mark Jolly opened a White Goods' business with his father which lasted until 1983. During this period, Mr Jolly helped his son by minding the shop and assisting with the bookwork. Mr Jolly would arrive at 10am and then stay at the shop until closing time. Both Mark and his father continued to smoke and Mark estimated that Mr Jolly was smoking approximately four to six cigarettes in one hour. After work, Mark Jolly and his father would then have a "few beers" and Mr Jolly would smoke.
In the late 1980s, Mr Jolly had bouts of illness but Mr Mark Jolly estimated that his father's rate of smoking stayed approximately the same until the 1990s. Mr Mark Jolly stated that he would often "have a go at him to slow down" and not smoke so much.
After the White Goods' business ceased, Mr Mark Jolly became a tourist coach driver as an employee. Mr Jolly would often accompany his son on these coach trips. In a two or three-month period, Mr Jolly would travel with his son on two or three occasions. The trips could be for ten, fourteen or fifteen days' duration to destinations such as Victoria, Tasmania or Queensland. There was a "No Smoking Policy" on the coaches but on rest or meal breaks, Mr Mark Jolly observed that his father would be the first off the bus in order to have a cigarette and was the last on prior to departure. Mr Jolly would also smoke at night, smoking approximately three cigarettes in 20 or 30 minutes. Mark Jolly observed that perhaps his father was suffering from withdrawal from cigarettes during the coach trip during the day and made up for it at night. Mark Jolly further estimated that his father would go through most of a 20-cigarettes pack in a day. Mark Jolly informed the Tribunal that during the 1980s and early 1990s, he and his father were very close and they had a lot of discussion about the changes in transport, vehicles and the roads.
In 1992, Mr Mark Jolly purchased his own Tourist Coach Business and his father continued to travel with him more frequently on trips. Mrs Jolly would sometimes join her son as well. On such trips, Mr Jolly would never smoke in front of his wife.
In the last few years of Mr Jolly's life, his son kept at him to cease or reduce his smoking. Mr Jolly did in fact reduce his cigarette consumption from about 1994 but Mark still caught him "puffing".
Mark Jolly explained to the Tribunal that Mrs Jolly opposed smoking. She had been greatly influenced by her father who was very much an anti-smoking person. It was "taboo" to smoke in front of Mrs Jolly and Mark Jolly did not recall any occasion when his father did this. Mr Jolly was adamant that his wife not be informed of his smoking. When Mark Jolly was 12 or 13 years of age, he remembers his mother accusing her husband of smoking, but Mr Jolly vehemently denied this. These denials occurred on a number of occasions. In early 2001, Mr Jolly in fact told his mother of Mr Jolly's continued smoking she had been very upset when told of his continued smoking. Mr Mark Jolly also believed that Mrs Jolly spoke to Mr Ellis about Mr Jolly's smoking. After that, Mr Ellis telephoned and they had a conversation about Mr Jolly's continued smoking. Mark Jolly further informed the Tribunal that over a 20 or 30 year period, he had perhaps had contact with Mr Ellis on six occasions.
Mark Jolly recalled for the Tribunal that his father's friends and business acquaintances told him that Mr Jolly was the most honest of people and had great integrity and was well respected.
Mr Jolly would avoid talking with his son about any medical problems. Mark would often drive his father to medical appointments but Mr Jolly would not discuss his health at all. "He went off" if Mark Jolly tried to raise the subject of his health. Mark was not aware of his father's pension claim in 1988 to the Department of Veterans Affairs for a "cough". In relation to the second claim for a Disability Pension in 1994, all Mr Mark Jolly could say was that he knew something was going on but as usual, his father did not tell him much. Mark Jolly was aware of his father's hearing before the Board.
Mr Jolly stated that he had observed his father having a cough for a number of years. He also had stomach problems but Mark Jolly was not aware of X-rays taken in 1989. Mark had driven his father to Concord Repatriation Hospital once or twice but he did not know the purpose of these hospital visits.
The Tribunal was informed that Mr Jolly liked to lie on the floor. Mr Jolly told his son that he had a "pinched muscle". Mr Jolly used to have a great deal of wind and would often "burp" after they moved to the Central Coast. Mark Jolly observed that his father regularly took a liquid mixture for indigestion. He took this mixture with him on the bus tours. Further, Mark Jolly recalled that his father's stomach was often distended and that Mr Jolly would often remark that he felt bloated.
Medical Evidence
Dr P Katelaris, Consultant Gastroenterologist
Dr Katelaris provided a report dated 5 February 2001 (Exhibit A2). Dr Katelaris is a Senior Staff Specialist in Gastroenterology at Concord Hospital and Clinical Senior Lecturer at the University of Sydney. He is a graduate with Honours from Sydney University, a Fellow of the Royal Australian College of Physicians (1989) and has a Doctorate from the University of London (1994). Dr Katelaris has had 12 years research experience on Helicobacter pylori and related diseases. Dr Katelaris is a co-author of "Helicobacter pylori for Health Care Providers" and is the Vice-Chair of the Digestive Health Foundation. Dr Katelaris is also a member of the Gastroenterological Society of Australia's Research Committee and Scientific Program Committee and the Society's spokesperson for upper gut disorders. Dr Katelaris has published many papers in the area of upper gut disease, including Helicobacter pylori and related issues and has had extensive clinical experience in this field in Australia and Asia, including lecturing on this and related fields.

In his report, Dr Katelaris noted Mr Jolly's medical history as outlined in a report by Dr Butler dated 11 January 2001. Dr Katelaris noted that it appears accepted that myocardial ischaemia contributed directly to Mr Jolly's final illness and death, perhaps precipitated by chemotherapy or the affects of therapy (tumour lysis) for his lymphoma.
Dr Katelaris made the point in relation to the diagnosis of non-Hodgkin's Lymphoma that Mr Jolly appeared to have dysphagia and weight loss as a symptom of lymphoma for a considerable period of time before the diagnosis was made. By the time dysphagia had occurred it was very likely, Dr Katelaris opined, that Mr Jolly had already advanced disease. The diagnosis of lymphoma was made very late. Dr Katelaris hypothesised that the lymphoma may have begun as a low grade lesion and progressed to transform into a high grade lesion. When this occurs, Dr Katelaris noted that there is an alteration in the histology of the lesion.
In relation to whether or not Mr Jolly had been infected with Helicobacter pylori during his war service, Dr Katelaris, having reviewed the documents, opined that the presence of the Helicobacter pylori infection is supported by a number of factors. In this regard, he noted that infection rates among Australians of Mr Jolly's birth cohort are often above 50 per cent. In a recent survey conducted at Concord Repatriation Hospital, 58 per cent of well elderly people were found to be infected. Thus, it was statistically more likely than not that Mr Jolly himself was infected. A further risk factor was the fact that Mr Jolly had been sent to the Middle East and Pacific Islands and lived in an environment which had lower standards of hygiene. These geographical regions are known to have a higher prevalence of Helicobacter pylori infection than Australia and the infection risk is directly related to living standards. While Dr Katelaris noted that the acquisition occurs mostly in childhood, there is ample evidence of adult acquisition. Furthermore, Dr Katelaris noted that there are reports of acquired infection by European Military Forces sent to high risk areas in the modern era. Thus, Dr Katelaris opined, it is very possible Mr Jolly acquired infection during his war service rather than as a child.
A further pointer to Mr Jolly's having Helicobacter pylori infection is that a barium meal undertaken in 1990 reported gastric antral deformity and decreased gastric distension, relating this to probable peptic ulcer scarring. Dr Katelaris noted that Helicobacter pylori infection is the major cause of peptic ulcer disease and this is important supportive evidence in Mr Jolly's case of the presence of infection. Further, Dr Katelaris noted that Mr Jolly had upper gut symptoms, for example, there is a mention in the papers of a diagnosis of "reflux" and a "hiatal hernia". Upper gut symptoms can be difficult to correctly ascribe clinically and Dr Katelaris opined that it is possible that these were ulcer symptoms, therefore supporting the presumption of Helicobacter pylori infection. Accordingly, Dr Katelaris concluded that on the balance of the evidence available to him it was more, rather than less likely, that Mr Jolly was infected with Helicobacter pylori which was acquired during service.
Dr Katelaris noted that the anatomic sight of the origin the lymphoma was not clear. A CT scan undertaken in Gosford in December 1998 showed upper abdominal and mediastinal lymphadenopathy. A subsequent upper endoscopy undertaken in January 1999, did not establish the origin of the lymphoma. The report of this procedure indicates that it was difficult because of Mr Jolly's intractable cough. Further, the Report describes "retained contents ++" in the gastric fundus. Dr Katelaris noted that when this occurs, the retained contents may obscure any underlying abnormality. The lesion that was seen was described as beginning at 30cm in the oesophagus, in or adjacent to an area of Barrett's epithelium. Dr Katelaris explained that Barrett's epithelium can appear indistinguishable from the gastric epithelium and diagnosis relies on the precise localisation of anatomical landmarks including the diaphragmatic hiatus. Dr Katelaris noted that in a difficult procedure with a patient moving due to coughing, where normal anatomy is disrupted by a tumour and where the stomach contains copious retained material, the precise localisation of the lymphoma is very difficult. Further, retained fluid in the fundus would preclude a good view of the gastric cardia on retroflexion. Taking all of this evidence together, Dr Katelaris concluded that the precise location and extent of the lesion is not certain. The possibility exists, Dr Katelaris opined, that the lesion was a proximal gastic lesion growing up into the oesophagus, rather than a primary oesophageal lymphoma. Further, Dr Katelaris noted that a primary B cell lymphoma of the oesophagus is rare.
In relation to whether the lymphoma could be related to Helicobacter pylori infection and which then transformed from a less severe grade to a more high-grade lesion, Dr Katelaris noted that it is well recognised that Helicobacter pylori infection may cause cell lymphoma of the stomach. This is called a "MALT" lymphoma which is often recognised to be low grade and indolent before transforming into a more aggressive tumour over time. Referring to the pathology report on endoscopic biopsies, Dr Katerlaris stated that these indicated "findings consistent with large B cell lymphoma". Dr Katelaris noted that in the text book, "Diagnostic Histopathology of Tumours," 2nd Edn" at page 350, there is the following description in relation to gastric MALT lymphomas:
"…Careful studies of high-grade lymphomas with widespread sampling have identified a component with typical low-grade features in over 25% of cases and there is molecular genetic evidence that this represents high-grade transformation of the latter…"

Thus, Dr Katelaris proposed that whereas MALT lymphomas usually show small cells, high grade transformation may be associated with histological transformation including the presence of large cells. Dr Katelaris concluded:
"In summary it is plausible (although not provable), that the veteran acquired H. pylori infection as a result of his exposure abroad during war service and, as a consequence, later developed a proximal gastric MALT lymphoma, that transformed into a high grade lesion that extended upwards into the distal oesophagus in a contiguous fashion and spread to regional lymph nodes…" (Exhibit A2 p3)
In relation to the issue of gastro-oesophageal reflux, while Dr Katelaris noted that reflux has been shown to increase the risk of oesophageal cancer, he also noted that it has not yet been associated with lymphoma and therefore an indirect war-service related sequence of events related to reflux was not supported in Mr Jolly's case.
At hearing, Dr Katelaris stated that it is a reasonable hypothesis that Mr Jolly had Helicobacter pylori. He noted that most people are asymptomatic and that a proportion of people go on to develop peptic ulcer. Mr Jolly's gastric symptoms including indigestion, bloating and the evidence arising out of a barium meal were an indication of Helicobacter pylori infection.
Dr Katelaris told the Tribunal that in 95 per cent of cases, Helicobacter pylori can cause lymphoma but not all lymphomas in the stomach are MALT lymphomas. In Mr Jolly's case, both Professor Levi and Dr Katelaris agreed that the small B cell or MALT lymphoma could transform later to another lymphoma type. Mr Jolly's lymphomas may in fact have started as a MALT lymphoma and transformed; therefore it is possible that the lymphoma arose with a different histology and then changed. The difficulty is that because Mr Jolly's lymphoma was discovered late, it was not possible at that stage to be conclusive as to the lymphoma's origin. It is clear however, Dr Katelaris stated, that Helicobacter pylori is the cause of MALT lymphomas in greater than 90 per cent of cases.
In relation to Professor Levi's opinion that Mr Jolly was not infected with Helicobacter pylori, Dr Katelaris stated that Mr Jolly was never specifically tested for this infection, whereas there is evidence from the barium meal in 1990 of antral deformity and decreased gastric distension, in addition to scarring from a probable peptic ulcer which points to and is indicative of Helicobacter pylori infection. Dr Katelaris opined that the most common outcome from Helicobacter pylori infection is peptic ulcer for which, in Mr Jolly's case, there was evidence of scarring which inferred a past peptic ulcer. Mr Jolly also had symptoms suggestive of Helicobacter pylori infection. At hearing, Dr Katelaris reiterated his conclusion in his report that a number of risk factors indicated that Mr Jolly was likely to have been infected with Helicobacter pylori. These factors included his age, his geographical location and his service in the war, with the poor hygiene associated with these particular locations.
Dr Katelaris made the point in relation to the differences of opinion between himself and Professor Levi, that Dr Katelaris is a Gastroenterologist and Professor Levi is an Oncologist.
At hearing, Dr Katelaris restated that it is difficult to conclude that the lymphoma was from the oesophagus. Consideration has to be given to where the lymphoma originated. Whether it arrived from the top of the stomach is a question to be asked and certainly a real possibility. Dr Katelaris noted that a lymphoma of the oesophagus is extremely rare. Dr Katelaris noted that it is a question now of interpretation and restated his opinion that it is plausible and most possible that the lymphoma originated in the stomach as a MALT cell lymphoma which then transformed. The difficulty is that this hypothesis can never be proved now and that because the lymphoma was not seen, it was difficult to say where the primary lesion originated and if indeed it had transformed. Dr Katelaris concluded at hearing that Helicobacter pylori infection caused a MALT lymphoma in the stomach which then transformed. This sequence is well documented in the textbooks, Dr Katelaris stated, and in the late stage of the diagnosis of Mr Jolly's condition, it was possible but not provable.
Dr Katelaris opined that the most likely cause of death was an ischaemic event as described by Dr C Tiley, Haematologist, following chemotherapy for the lymphoma.
Professor J Levi, Clinical Professor of Medicine, University of Sydney, Director of the Department of Medical Oncology, Royal North Shore Hospital, Consultant physician
Professor Levi is actively involved in the management of a wide variety of malignancies including lymphoma and is a major participant in both clinical and laboratory cancer research with over 200 publications in these areas. Professor Levi provided a report of 26 April 2001 (Exhibit R1). His report is based on documents forwarded by the Department of Veterans' Affairs, including the T-Documents; clinical notes from General Practitioner, Dr J Sturmberg; clinical notes from Dr D Bliss, Cardiologist; clinical notes regarding several admissions to Gosford Hospital; medical report by Dr R J Butler, Consultant Physician and a medical report by Dr P Katelaris, Consultant Gastroenterologist.
Professor Levi noted Mr Jolly developed problems with a chronic cough which appeared to develop in the 1950s. In the early 1990s he developed dyspnoea on exertion. An application for pension made in May 1988 included disabilities listed as indigestion and hiatus hernia in 1967, as well as chronic symptoms of a continuous cough. Professor Levi noted that a Smoking Questionnaire completed by Mr Jolly at that time indicated he commenced smoking in 1940, ceasing in 1950 with a daily consumption of between 10 and 15 cigarettes per day. Professor Levi noted a further Smoking Questionnaire completed in February 1994 which indicated a commencement of smoking in 1940 with a cessation in 1948 (T8 p35, 36).
Professor Levi noted that a barium meal performed in 1990 revealed evidence of pyloric antrum deformity and decreased gastric distension which was considered possibly related to peptic ulcer scarring.
On 29 December 1998, Mr Jolly presented with a history of a weight loss of 20 kilograms with a long history of dysphagia during the last six months. A CT scan of his chest and abdomen performed on 29 December 1998 revealed a large posterior mediastinal mass merging with the distal thoracic aorta. An endoscopy performed on 4 January 1999 revealed an area of irregularity at 30 centimetres, consistent with malignancy. Comments were made that the gastric mucosa was normal although there were retained contents. Biopsy of the oesophageal lesion indicated an infiltrate of non-cohesive cells with large oval nuclei and prominent nucleoli. Markers for B cells were positive and a diagnosis was made of a "large cell B-cell lymphoma". Mr Jolly then commenced chemotherapy on 12 January 1999. In the early hours of 14 January 1999, Mr Jolly had a cardiac arrest and sadly, then died. Professor Levi further noted Dr Tiley's comment in a letter dated 15 January 1999, that bio-chemical changes were suggestive of acute tumour lysis.
Professor Levi considered that the cause of Mr Jolly's death was that of an underlying diagnosis of diffuse large cell B-lymphoma. The information available certainly indicated, Professor Levi opined, a likely association of myocardial ischaemia at the time of diagnosis as determined by a markedly disturbed left ventricular injection fraction, with an ECG showing atrial fibrillation and ischaemic changes. Evaluation of cardiac status in 1988, 1992 and 1993 indicated normal ECGs although a stress test was never undertaken.
From the perspective of attempting to define ischaemic heart disease if indeed this was present, it is not unreasonable to consider most likely that this was first documented around 1995, Professor Levi opined. Therefore, Professor Levi considered that myocardial ischaemia contributed to Mr Jolly's death on the basis of the finding that during his final illness in December 1998, there was a potential diagnosis of ischaemic heart disease in 1995. There was a relationship then to cigarette smoking.
With regard to the possibility of Helicobacter pylori infection and its potential association with the subsequent development of Mr Jolly's lymphoma as outlined by Dr Katelaris, Professor Levi commented that while patients in Mr Jolly's age group have a greater than 50 per cent potential for Helicobacter pylori infection, Professor Levi did not think there was available evidence in Mr Jolly's notes related to this. Professor Levi did note however Mr Jolly's statement regarding the history of hiatus hernia and indigestion in 1967 and also a finding from a barium meal test, of a deformity of the pyloric antrum considered possibly related to scar formation, but without evidence of active peptic ulcer.
On the basis of all of the documentary information, Professor Levi concluded that while it is possible that Mr Jolly suffered from Helicobacter pylori infection for some time, there was no adequate evidence to support this. From the point of view of Mr Jolly's lymphoma, the information would suggest the diagnosis of a primary lymphoma arising out of the lower end of the oesophagus which was a defuse large cell type. In so concluding, Professor Levi noted Dr Katelaris had raised the question of an association between the lymphoma and Helicobacter pylori infection. In this regard, Professor Levi noted that Helicobacter pylori infection of the stomach may lead to a MALT type lymphoma which is characteristically a small to intermediate cell size tumour. The biopsy reports do not show any suggestion of MALT type lymphoma, nor other findings on endoscopy on 4 January 1999, to indicate possible Helicobacter infection within the stomach. Professor Levi anticipated that prolonged Helicobacter pylori infection would result in chronic gastritis with potential associated atrophy and yet no such findings were demonstrated on endoscopy in January 1999. Therefore Professor Levi concluded that it was most likely that Mr Jolly suffered from a primary diffuse large cell lymphoma arising from the oesophagus and that it was unlikely that this had occurred from a background of previous Helicobacter pylori infection. If there were Helicobacter pylori infection related to war service, this would be in the context of development more than 50 years previously without any evidence of chronic gastritis on CT scans in 1995, 1997 or endoscopy in 1999 and therefore, Professor Levi did not consider this was a reasonable association.
At hearing, Professor Levi reiterated his view of the most likely possibility that Mr Jolly's primary lymphoma was of the oesophagus. Further, he stated that there was no evidence of a primary lymphoma in the stomach and no evidence of any gastritis. However, Professor Levi conceded he could not rule out the possibility of a lymphoma in the stomach, but he did not think there was evidence there to support such a conclusion. The difficulty, he acknowledged, was that because the lymphoma was so advanced when it was discovered and then diagnosed, it was possible that there was infiltration from the stomach. If the lymphoma did extend into the stomach, then it could have been a type of lymphoma arising out of Helicobacter pylori infection. Professor Levi agreed that there would be a possibility of a transformation from a MALT lymphoma in the stomach to the other lymphoma which was the subject of histological examination. The fact that there were no MALT cells found on that histological examination did not exclude the possibility of a MALT lymphoma because of the knowledge that such lymphomas can transform. In relation to Dr Katelaris' views that there was evidence of possible Helicobacter pylori infection, Professor Levi noted that the barium meal in 1990 may have indicated peptic ulcer disease which was as a result of Helicobacter pylori infection, but he did not think this was conclusive.
Professor Levi further agreed that lymphoma of the oesophagus is rare and it is more common to have a lymphoma of the stomach. He also conceded that the lower end of the oesophagus has mucosa similar to that in the stomach and that there was no reason either that the Helicobacter pylori infection may have extended into the lower end of the oesophagus. Further, when presented with evidence provided to the Tribunal by Mr Jolly's family that there was a history of indigestion and pain, including the taking of a mixture for indigestion, then this could be consistent with a gastritis-type condition. Such matters were best determined by a gastroenterologist, Professor Levi stated. Professor Levi concluded that large B-cell lymphomas are not typically associated with Helicobacter pylori infection but that MALT cell lymphomas can change or transform into a large B-cell lymphoma. If there was Helicobacter pylori infection, then it could have been in the oesophagus which, as a body entity, is an extension of the stomach.
Dr C Tiley, Clinical Haematologist
The Tribunal has had the benefit of a number of Dr Tiley's reports (T11 p57; T15 p80; Exhibit A3 and Exhibit R5). In a report of 28 May 1999, Dr Tiley noted that Mr Jolly was found to have a malignant B-cell lymphoma large cell type in January 1999 following a long history of dysphagia and significant weight loss.
Dr Tiley noted that unfortunately, Mr Jolly deteriorated acutely early in the course of his chemotherapy and died suddenly of cardiac arrest in the context of congestive cardiac failure. Dr Tiley noted that Mr Jolly had been a heavy smoker and a gated heart pool scan prior to therapy was found to evidence extremely poor left ventricular function. Dr Tiley opined that it is likely that Mr Jolly's pre-existing ischaemic heart disease was the major predisposing factor behind his death in the context of chemotherapy (T15 p80). The Repatriation Commission subsequently questioned Dr Tiley in relation to his description of Mr Jolly being "a heavy smoker". By letter of 20 July 2001, Dr Tiley informed Mr Godwin of the Department of Veterans' Affairs, that he had no recollection of the precise circumstances which prompted him to write the brief medical report four months after Mr Jolly's death or the source of the information regarding Mr Jolly's smoking history. Dr Tiley noted that he had reviewed Mr Jolly's medical record and there were clear statements in his final admission and the hospital admission prior to that, that he was in fact a non-smoker. Dr Tiley specifically referred to an entry dated 5 June 1992, which stated that Mr Jolly smoked for two years in the 1940s. A further entry in December 1988 stated that he ceased smoking in 1943. Dr Tiley concluded that he could find no support in the medical record for Mr Jolly having a long history of smoking and therefore, it seemed unlikely that the brief documented smoking history contributed to Mr Jolly's deterioration and death with malignant lymphoma in 1999 (Exhibit R5).
Dr R J Butler, Consultant Physician

Dr Butler is a Consultant General Physician with a major interest in clinical cardiology. He graduated from the University of Sydney in 1962 becoming a member of the Royal Colleges of Physicians of the United Kingdom in 1969. In 1971 Dr Butler became a member of the Royal Australasian College of Physicians and achieved Fellowship in 1978. Since 1973, Dr Butler has been in clinical practice at the Sydney Adventist Hospital, serving as a Director of the Coronary Care Unit from 1975 to 1994. Dr Butler was Medical Director of the Cardiac Rehabilitation Unit from 1980 to 2000.
Dr Butler studied a number of reports regarding Mr Jolly and interviewed Mrs Jolly and Mr K Ellis on 10 January 2001. Dr Butler noted that on 28 December 1998, Mr Jolly developed chest pain with rapid atrial fibrillation while undergoing an abdominal CT scan. The scan showed extensive lymphadenopathy and subsequently, in 1999, a B-cell lymphoma involving the oesophagus was demonstrated. Dysphagia, presumably caused by the obstructive effect of the lymphoma mass caused severe weight loss. There were also biochemical indicators of poor nutrition and Mr Jolly was fed by naso-gastric tube for most of his period in hospital. Dr Butler noted that there were at least two entries in the notes referring to impaired left ventricular function and left ventricular wall motion abnormalities. An electrocardiogram recorded on 29 December 1998 on admission, showed lateral ST segment changes consistent with ischaemia. A further tracing on 13 January 1999, again showed changes consistent with ischaemia. It was noted by Dr Butler that a few hours after the administration of the first dose of chemotherapy, Mr Jolly suffered a cardiac arrest and was resuscitated. He died later that day without regaining consciousness after respiratory support was withdrawn. Post-arrest ECGs showed changes consistent with ischaemia.
Dr Butler opined that he had no doubt that Mr Jolly suffered from ischaemic heart disease and that the fall in blood pressure and exercise ECG recorded in 1995 was probably the first definite indication of myocardia ischaemia. By late 1998, the changes in left ventricular functions were documented. Accordingly, Dr Butler concluded that Mr Jolly's cardiac arrest was probably due to extensive myocardial ischaemia, with the chemotherapy being the trigger of the terminal event.
In relation to Mr Jolly's smoking, Dr Butler noted there was no debate that Mr Jolly commenced smoking shortly after entering the Army. There is a record that he ceased smoking in about 1948 or 1950. Mr Ellis had told Dr Butler that he recalled Mr Jolly smoking when they played golf together in the 1980s. Further, Mrs Jolly recalled that when Mr Jolly came home from the local club, which was virtually a daily event, he smelt very strongly of tobacco smoke. Mrs Jolly suggested that Mr Jolly may well have been smoking other than at home. If Mr Jolly was a "cupboard" smoker, Dr Butler opined that this might explain his chronic cough. There was no reference to Mr Jolly's hospital notes of 1993.
Referring to the later Statement of Principles for Ischaemic Heart Disease, Instrument Number 38 of 1999, Factor 5 (e)(ii) requires smoking at least five pack years with the development of ischaemic heart disease occurring within 15 years of cessation of smoking. Dr Butler opined at the time of his first report that it was unlikely that Mr Jolly's smoking during and immediately after his service would be less than 5 pack years. Dr Butler wrote that if it could be documented that Mr Jolly continued to smoke to any regular extent up to 1980, then his ischaemic heart disease which first became clinically evident in 1995 could be regarded as being associated with his previous smoking. Should 1998 be regarded as the date of clinical evidence of ischaemic heart disease, the smoking up until late 1983 would need to be documented.
Dr Butler further noted that Mr Jolly's inability to exercise as a potential risk factor for ischaemic heart disease, Factor 5(h) of Instrument Number 38 of 1999 was raised, in Dr Butler's opinion. Dr Butler was not however convinced that Mr Jolly's exercise tolerance was severely limited for at least five years prior to the clinical onset of ischaemic heart disease in either 1995 or 1998. Dr Butler also noted the Statement of Principles for Non-Hodgkin's Lymphoma, which allows for the presence of Helicobacter pylori infection as a potential risk factor for lymphoma of the stomach. Dr Butler noted that Mr Jolly had a history of gastro-oesophageal reflux and a barium meal on 16 January 1990 suggested the possibility of a previous duodenal ulcer. Dr Butler noted that duodenal ulceration is frequently related to Helicobacter pylori infection. There is a tenuous suggestion therefore that Mr Jolly may have had this infection and that this could have been involved in causing his lymphoma. As there was no documentation to show that a duodenal ulcer or gastro-oesophageal reflux was service-related, Dr Butler suggested that the opinion of a gastroenterologist should be sought.
On 26 February 2001, Dr Butler provided a supplementary report, having considered a statement by Mr Jolly's son, Mark Jolly. Mark Jolly's statements suggested to Dr Butler that Mr Jolly had continued to smoke cigarettes regularly until at least 1992/1993. On this basis, Dr Butler reported that he had no hesitation in stating that Mr Jolly's cigarette smoking was a significant contributor to the ischaemic heart disease which caused his death. As Mr Jolly's smoking commenced during his military service, Dr Butler reiterated his view that Mr Jolly's tobacco intake would not have been less than five pack years and probably exceeded 20 pack years. Thus, the clinical onset of ischaemic heart disease in either 1995 or 1998 would therefore fulfil the requirements of Factor 5(e)(ii) of the relevant Statement of Principles. (Exhibit A1).
Submissions
Mr Vesper submitted that there are two alternate submissions in relation to Mr Jolly's death, namely that Mr Jolly died from ischaemic heart disease and also that the non-Hodgkin's Lymphoma also led to his death.
In relation to Mr Jolly's smoking history, Mr Vesper noted that the documented smoking histories do not conclusively show that Mr Jolly ceased smoking in the 1940s or 1950s. Mr Vesper referred the Tribunal to the Repatriation General Hospital, Concord Records at T7 p34, which record in the Admission Notes of 21 November 1983, that "smoking aggravates [Mr Jolly's] throat". Mr Vesper submitted that this entry indicates that Mr Jolly was smoking at the time of his admission in 1983. Further, Mr Vesper submitted that on other occasions, Mr Jolly was maintaining "the fiction" that he had ceased smoking in either 1948 or 1950, as noted in T4 p18, 21. When the Tribunal takes into account Mrs Jolly's near obsession that Mr Jolly should not smoke, then it is understandable, Mr Vesper contended, that Mr Jolly maintained that he did not smoke. While Mrs Jolly probably did know the truth about her husband's smoking, it was not until Christmas 2000 or early 2001 that she asked her son Mark about her husband's smoking.
Mr Vesper submitted that the Tribunal should accept that Mr Jolly and Mark Jolly had a very close relationship, with breaks in their relationship coming later as a result of their business disagreement. Mark Jolly's evidence was consistent with Mr Ellis' evidence that Mr Jolly did not wish his wife to know of his smoking and that in reality he was continuing to smoke into the 1990s. The extent of Mr Jolly's smoking as noted by Mr Ellis is consistent with evidence provided by Mark Jolly about the extent of his father's smoking.
In relation to Mr Ellis' evidence to the Tribunal about Mr Jolly's smoking history, it should be noted that previously at the Board, there was no detailed discussion of smoking start or cessation dates nor of quantities. Mr Ellis' opinion to the Board about smoking and the Statements of Principles did not indicate that he had a complete understanding of the impact and importance of the relevant Statement of Principles. The Tribunal should therefore not read anything into Mr Ellis' evidence to the Board, which would suggest that he did not know of the extent of Mr Jolly's smoking. Further, Mr Ellis did not expressly deal with Mr Jolly's smoking history at the Board Hearing, as at the time his main submission was in relation to respiratory disease and a combination of factors, including Mr Jolly's stress, his smoking and exposure to the smoking of others in the form of passive smoking (T16 p90). Mr Ellis did note Mr Jolly's "imperfection" of memory in relation to his smoking intensity.
Mr Vesper submitted that it would have been difficult in Mrs Jolly's circumstances of being distressed at the Board for her to say that her husband had not told her the truth about his smoking. "She allowed the fiction to be maintained", Mr Vesper stated and she was prepared to deceive herself. Mrs Jolly was distressed at the time of appearance before the Board and was on medication. Mrs Jolly's credibility should not be questioned and her statements to the Board are in keeping with her being in such a distressed state, Mr Vesper stated.
Mr Vesper submitted that the Respondent was asserting a theory of conspiracy between Mrs Jolly, Mark Jolly and Mr Ellis. Mr Vesper maintained that such a submission, that they lied under oath, is not sustainable or reasonable. Mr Vesper contended that Mrs Jolly gave the best evidence she could at the Board. Further, Mr Vesper referred the Tribunal to the rule in Browne v Dunn (1893) 6 R 67. That rule, which Mr Vesper maintained is good law in Australia, provides that where a party intends to suggest the drawing of an inference adverse to a witness from the evidence in the case, the suggested inference should be put to the witness in cross-examination. Mr Vesper referred to subsection 46(2) of the Evidence Act 1995 (Cth), which makes it clear that the rule in Browne v Dunn (supra) still applies.
Mr Vesper submitted that Mr Mark Jolly's credibility was not challenged and Mrs Jolly knew conclusively about the smoking at the earliest in 2000, at which point she asked Dr Butler's opinion.
Mr Vesper reiterated that Mr Jolly's own details of his smoking history over the years were inaccurate and the most likely explanation for this was his attempt to conceal his smoking from his wife who was so obsessed that her husband did not smoke. Mrs Jolly was not in a position to know of the deception even if she might have suspected that there was deceit on her husband's part. Mrs Jolly was not allowed to know what her husband smoked. Mr Vesper also noted that the existence of a persistent cough was investigated thoroughly and no one could explain this condition.
On all the evidence, Mr Vesper submitted that Mr Jolly was smoking into the 1990s when Mark Jolly had the White Goods business. This smoking continued from 1940 during war service for at least 50 pack years. Mr Vesper submitted that with an onset of ischaemic heart disease in 1995 or perhaps earlier, Mr Jolly was still smoking in the early 1990s and therefore his circumstances meet Factor 5(f)(ii) of Instrument Number 80 of 1998 which states;
"(f) where smoking has ceased prior to the clinical onset of ischaemic heart disease,
…
(ii) smoking five or more but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and clinical onset of ischaemic heart disease has occurred within 15 years of cessation;
…"
Mr Vesper provided an alternate submission in relation to the cause of Mr Jolly's death being related to non-Hodgkin's Lymphoma. Dr Katelaris had hypothesised that Mr Jolly acquired an Helicobacter pylori infection as a result of his war service and as a consequence, later developed a proximal gastric MALT lymphoma that transferred into a high grade lesion extending upwards into the distal oesophagus in a contiguous fashion spreading to the regional lymph nodes. Based on Dr Katelaris' opinion, Mr Vesper submitted that Mr Jolly's war service in the South Pacific and the Middle East made him more likely to have contracted an Helicobacter pylori infection. This other risk factor which pointed to infection by Helicobacter pylori relates to his age cohorts.
The relevant factor is Factor 5(f) of Instrument Number 69 of 1997 concerning Non-Hodgkin's Lymphoma, which states:
"…(f) for primary B-cell lymphoma of the stomach only, contracting Helicobacter pylori infection before the clinical onset of non-Hodgkin's lymphoma;
…
"Helicobacter pylori infection" means an infection of the mucus layer overlying gastric-type epithelium by the bacterium Helicobacter pylori, attracting ICD code 041.86;…"

Mr Vesper submitted that the material pointed to Mr Jolly having gastric-symptoms, bloating, flatulence, pain in the gastric region and using an antacid. Further, the results of a Barium meal in 1990 indicated the possible past existence of a duodenal ulcer, which points to infection by Helicobacter pylori. Mr Vesper noted that Professor Levi had conceded that the expertise of a gastroenterologist should be obtained in relation to the existence of Helicobacter pylori infection and he would defer to such opinion. Further, Professor Levi had also agreed that it was possible that in Mr Jolly's case, the initial cancer transformed from a MALT lymphoma in the stomach to a more aggressive B-cell lymphoma.
Mr Vesper submitted that a reasonable hypothesis was raised as Factor 5(f) of the relevant Statement of Principles was met. There were no facts to dispute this reasonable hypothesis beyond reasonable doubt, Mr Vesper concluded.
Going through the four steps discussed in Repatriation Commission v Deledio (1998) 83 FCR 82, Mr Vesper submitted that all the steps were met. Dr Katelaris had put forward an hypothesis which on a consideration of the material met Factor 5(f) of the Non-Hodgkin's Lyphoma Statement of Principles and there were no facts to dispute it. Thus Helicobacter pylori infection led to a B-cell lymphoma of the stomach which transformed and subsequently caused Mr Jolly's death.
Accordingly, Mr Vesper concluded that Mr Jolly's death was war-caused and therefore, Mrs Jolly was qualified for War-Widow's pension with effect from and including 15 January 1999.
Mr Godwin, for the Respondent, referred the Tribunal to a number of documents to indicate the difficulty with the Applicant's submissions concerning Mr Jolly's smoking history.
At a Board hearing held on 11 May 1989, in relation to Mr Jolly's claim for asthma, Mr Jolly is reported to have told that Board that he ceased smoking in 1950 (T5 p24). In a statement dated 8 May 1988, Mr Jolly wrote that he ceased smoking after discharge from the Army but then smoked again, eventually ceasing completely but retaining a persistent cough (T4 p21). The reference made by Mr Vesper to the Concord Hospital Admission record of 21 November 1983 is not conclusive of Mr Jolly's continuing to smoke at the date, Mr Godwin submitted, as the notation concerning "smoking aggravates throat" is in answer to a question concerning "allergies". Mr Godwin further submitted that this does not necessarily mean, Mr Godwin submitted, that as at November 1983 Mr Jolly was still smoking but more possibly, that smoking when it had occurred, had caused aggravation. The notation was not conclusive of past or present smoking, Mr Godwin contended.
While there were references in documents to Mr Jolly's persistent cough, despite many investigations and reports, there is no reference to Mr Jolly having a smoker's cough.
Mr Godwin submitted that Mr Mark Jolly's evidence was not sound. In this regard, Mark Jolly's evidence was that his father would have four or five cigarettes per hour and this was fairly standard over Mr Jolly's life. Mr Ellis, who saw Mr Jolly when playing golf every two or three months and perhaps on other social occasions, indicated that over a four or five hour period, Mr Jolly would smoke cigarettes at each tee. This would be at least twenty cigarettes or one packet over a round of golf. The description of Mr Jolly as a closet smoker is not consistent with one packet per day, Mr Godwin submitted.
In relation to Mrs Jolly's evidence, she stated that she knew full well her husband smoked because of his breath, Mr Godwin submitted. This evidence is difficult to reconcile given what Mr Ellis and Mrs Jolly told the Board on 13 March 2000. At that time, given Mrs Jolly's evidence to the Tribunal, she was fully aware of her husband's smoking, Mr Godwin added.
Mr Godwin did not think it possible that doctors investigating Mr Jolly's persistent cough, including respiratory physicians, would have missed a smoking connection to the cough if it had been there. The respiratory physician in fact stated that Mr Jolly did not smoke and it seems impossible to consider that if Mr Jolly was smoking one packet of cigarette per day that he did not have the smell of someone who smoked to that extent. Mr Jolly was suffering a severe cough and it is obvious that he would have been asked about his smoking history. Further, Dr C Tiley, Clinical Haematologist, reported on 20 July 2001 that whereas he had previously reported that Mr Jolly was a heavy smoker, when he looked at the history including Mr Jolly's final admission and hospital admission prior to that noting that Mr Jolly was a non-smoker, Dr Tiley concluded that he could find no support in the medical record of Mr Jolly having a long history of smoking. In such circumstances, Dr Tiley further concluded that it would seem unlikely that Mr Jolly's smoking history contributed to his death and that the death was caused by malignant lymphoma (Exhibit R5).
Mr Godwin submitted that the Tribunal has to reconcile Mr Mark Jolly's evidence that his father was an honest person with integrity, with the proposition that he concealed his continued smoking from doctors responsible for his care, the hospitals and Mrs Jolly. The more likely situation, Mr Godwin contended, is that Mr Jolly did give up smoking much earlier in either 1948 or 1950, than has been recently asserted by Mr Ellis, Mrs Jolly and Mr Mark Jolly. Mr Godwin contented that there must be objective evidence to confirm Mr Jolly's continued smoking past 1948 or 1950. The comparison of various oral and documentary evidence is confusing. Mr Godwin submitted further that Section 119 of the Act should not be used to solve the problem in this case where there is conflicting evidence and no conclusive position capable of being reached from the evidence.
Turning to the issue of non-Hodgkin's Lymphoma, Mr Godwin submitted that there is evidence that just prior to Mr Jolly's death, he had a large B-cell lymphoma. Dr Katelaris and Professor Levi agree that there is a possibility of the lymphoma transforming from a small low grade B-cell lesion to a more aggressive lesion which spread from the stomach to the oesophagus. Certainly, the transformation is possible. Mr Godwin referred the Tribunal to Repatriation Commission v Deledio (supra) which endorses Repatriation Commission v Bey (1997) 79 FCR 364, in which the full Court concluded:
"…A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority…"

Considering the relevant Statement of Principles for Non-Hodgkin's Lymphoma, Mr Godwin submitted that a distinction is made between the existence of a factor from the material as opposed to the possible existence of a factor.
Mr Godwin then referred to Harris v Repatriation Commission (2000) 62 ALD 174, which dealt with the trauma factor in relation to lumbar spondylosis. In that case, Finn J, in the primary decision, noted that each of the three stipulated matters in the trauma definition must be indicated or phenomena evidencing each be present. Finn J noted that while a doctor's evidence provided material consistent with one of the elements of the trauma definition, that of "altered mobility", this material was not overt and Finn J concluded that the doctor's evidence was not consistent with nor did it point to the existence of the factor. Altered mobility of which a person was unaware could not be suggestive of an "acute sign or symptom" of altered mobility. Mr Godwin submitted that in Mr Jolly's case, the Tribunal could not make assumptions if there was no material to support such assumptions. In the Full Federal Court in Harris v Repatriation Commission [2000] FCA 1687, at paragraph 51, the Court concluded that all elements of the definition of trauma must be satisfied.

There must be objective evidence, Mr Godwin submitted of Helicobacter pylori infection and when dealing with the statistical likelihood of infection, there must be judgement bought to bear based on objective evidence. Factor 5(f) of Instrument Number 69 of 1997 deals with the stomach only and therefore, to meet the factor, Mr Godwin submitted that the material must point to a lymphoma in the stomach.
Mr Godwin further submitted that there is no concrete evidence of Helicobacter pylori infection, while he agreed there are risk factors relating to Mr Jolly's service in the Middle East and the South Pacific. There is however no evidence that Mr Jolly was infected. It is impossible to tell, Mr Godwin submitted. All the Tribunal has is that Mr Jolly might have been infected and that if he was, this infection continued during service.
Mr Godwin referred the Tribunal to Dixon v Repatriation Commission (1999) 59 ALD 315; (1999) 29 AAR 235, in which Wilcox J described the interaction between steps three and four as outlined in Repatriation Commission v Deledio (supra):
"25. The question whether a decision-maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision-maker will rule against a claimant simply because he or she is not persuaded the claimant's story is probably true. Although the decision-maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision-maker is likely to reject the application even though he or she thinks the claimant's story may possibly be true. This would defeat the protection for veterans embodied in s120(1), whereby a claim which fits the factors in the relevant Statement of Principles must be accepted unless the decision-maker is satisfied, beyond reasonable doubt that it is without justification…"

In conclusion, Mr Godwin noted that in relation to the hypothesis that ischaemic heart disease caused Mr Jolly's death through his war-related smoking, he conceded that following the application of subsection 120(3) of the Act, that a reasonable hypothesis is raised. However, in the fourth Deledio step, the credibility of the evidence is so poor such as to make it clear that the facts do not support the raised hypothesis. Therefore the claim for a war-caused death through smoking leading to ischaemic heart disease is not supported by the facts and the claim must fail.
In relation to non-Hodgkin's Lymphoma, there is no issue of credibility. It is a matter of whether under subsection 120(3) of the Act a reasonable hypothesis can be raised and it would seem that a hypothesis is raised by Dr Katelaris of Helicobacter pylori infection occurring. This is open to conjecture however, Mr Godwin submitted. The Respondent says that there is no reasonable hypothesis because the mere assertion of the possibility of Helicobacter pylori infection is inferential and not conclusive or supported by the facts. In all the circumstances, Mr Godwin submitted that Mrs Jolly's claim for a War Widow's pension must fail.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and caselaw.
At the outset and based upon the Death Certificate supported by medical opinion, the Tribunal finds that the cause of Mr Jolly's death on 14 January 1999 was cardiac arrest arising out of the rapid progression of a lymphoma.
The Tribunal considers that Mrs Jolly provided evidence to the best of her ability. However there were some gaps in her knowledge due in large part to her memory and the obvious distress of having to discuss matters relating to her husband's death.
The Tribunal first deals with the submissions relating to Mr Jolly having been infected by Helicobacter pylori which led to a lymphoma of the stomach and eventually Mr Jolly's death.
Dr Katelaris has raised an hypothesis that Mr Jolly had a number of risk factors which would indicate that he had an Helicobacter pylori infection. In this regard, the Tribunal notes statistical analysis in relation to the high likelihood of infection with Helicobacter pylori given Mr Jolly's age cohorts, the fact that he was in the war in the Middle-East and the South Pacific and that these geographical locations made it highly likely that he was infected. These risk factors combined with the results of a barium meal in 1990 indicating a past duodenal ulcer. There was also evidence that Mr Jolly had gastric problems including bloating, flatulence and gastric- type pain for which he used a white liquid, considered by Dr Katelaris to be an antacid. All this material strongly points to the presence of Helicobacter pylori infection.
Factor 5(f) of the relevant Statement of the Principles, Instrument Number 69 of 1997, requires that to be met, there must be prior Helicobacter pylori infection before the clinical onset of a lymphoma of the stomach. The further hypothesis from Dr Katelaris and conceded as a possibility by Professor Levi, is that the primary lymphoma occurred as a small B-cell lymphoma in the stomach which then transformed later to a more aggressive lesion which extended from the stomach upwards into the oesophagus.
Considering subsection 120(3) of the Act, and acknowledging that at this stage the Tribunal is not engaged in a fact-finding exercise, the Tribunal concludes that the material available to it, particularly the opinion of Gastroenterologist, Dr Katelaris, concerning the presence of Helicobacter pylori infection, raises a reasonable hypothesis as Factor 5(f) of the Statement of Principles is met.
The Tribunal sees its next task as considering, under the provisions of subsection 120(1) of the Act, whether or not there are sufficient facts which the Tribunal is satisfied beyond reasonable doubt, support the raised hypothesis. The Tribunal finds that a barium meal undertaken in 1990 indicates a past duodenal ulcer. Further, the Tribunal finds that Mr Jolly experienced bloating, flatulence and gastric-type pain for which he took a white liquid considered by Dr Katelaris and the Tribunal to be an antacid. All these facts point to there being Helicobacter pylori infection and there are no facts to dispute this beyond reasonable doubt.
In relation to whether or not the lymphoma had its site in the stomach, the Tribunal notes that Mr Jolly was diagnosed very late in the course of his illness and shortly before his death. The endoscopic examination was difficult because of Mr Jolly's extensive coughing, in addition to the presence of retained gastric material obscuring full disclosure of the tumour. Dr Katelaris hypothesised and, Professor Levi conceded, that there was a possibility that the primary lymphoma had commenced as a small B-cell lymphoma in the stomach which then transformed to a more aggressive lesion which extended upwards from the stomach and into the oesophagus. It was as a result of the endoscopic examination which pointed to the lesion at a site in the oesophagus. The Tribunal is not satisfied beyond reasonable doubt that the primary lymphoma was in the oesophagus, noting the very real and not fanciful possibility that the more likely course of this disease was that a primary lymphoma commenced in the stomach. This primary lymphoma in the stomach then transformed into the more aggressive tumour which was at the late stage of the disease's progress, discovered in the oesophagus. This hypothesis has its basis arising out of clinical facts and experience and Professor Levi concedes that this is a very real possibility, particularly as lymphomas in the oesophagus are rare.
In such circumstances, considering all the available material, the Tribunal is not satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Jolly's death was war-caused. The facts point to there being an Helicobacter pylori infection of the stomach leading to a B-Cell lymphoma in the stomach, which then transformed into an aggressive tumour in the oesophagus from which Mr Jolly ultimately died. Accordingly, as the Tribunal has determined that Mr Jolly's death was war-caused, then it follows that Mrs Jolly is qualified for payment of a War Widow's pension from and including 15 January 1999.
For completeness, the Tribunal has also considered the submission in relation to Mr Jolly having a war-caused smoking habit which led to his developing ischaemic heart disease which then led to his death.
The Tribunal has no difficulty in accepting that Mr Jolly commenced smoking as a result of his war service. The difficulty for the Tribunal is, however, trying to reconcile the oral and documentary evidence as to the course of Mr Jolly's smoking history. Mrs Jolly informed the Tribunal that as early as January 2000, she definitely knew of her husband's continued smoking, yet she did not provide evidence of this continued smoking to the Board. This non-disclosure to the Board could in part be explained by Mrs Jolly's obvious distress by the recent death of her husband and her being on medication. These same reasons for non-disclosure cannot be utilised by Mr Ellis, who also knew by at least early 2000, of Mr Jolly's continued smoking beyond that on the occasion of their golf games. Mr Ellis did not provide the Board with the benefit of his more extensive knowledge. Mr Ellis, the Tribunal finds, does have sufficient knowledge and did, at the time of the Board's hearing, have sufficient knowledge, given his experiences in assisting veterans in previous claims, of the importance of such evidence in the Statement of Principles concerning ischaemic heart disease.
Mr Mark Jolly's evidence does indicate a continued smoking history by his father. The Tribunal must however reconcile this evidence with other evidence, including contemporaneous documentary material from Mr Jolly himself and his various medical practitioners.
Turning to Factor 5(f)(ii) of the relevant Statement of Principles, which requires smoking greater than five but less than 20 pack years of cigarettes or equivalent with the onset of ischaemic heart disease occurring within 15 years of cessation, the Tribunal takes the date of onset of ischaemic heart disease as 1995.
On the material available to the Tribunal, and following the Deledio steps, the Tribunal has already accepted that there was a service-related smoking history. If the Tribunal were to accept that smoking ceased in the early 1990s before the onset of ischaemic heart disease in 1995, there could, without there being a fact finding exercise, be support for such an hypothesis as required by subsection 120(3) of the Act.
Considering subsection 120(1) of the Act however, the Tribunal must be satisfied beyond reasonable doubt that there are sufficient facts to support such a raised reasonable hypothesis. The difficulty in this is that if the Tribunal accepts that Mr Jolly ceased smoking prior to the onset of ischaemic heart disease, it is not able to be determined beyond reasonable doubt as to what the level of smoking was or when he ceased smoking. There is an assertion that it was to the level of 20 cigarettes per day. Mr Mark Jolly however had not seen his father for many years in the 1990s following a break in their relationship. There is conflicting evidence as to in fact whether Mr Jolly was smoking at all in the 1990s, with evidence that he ceased much earlier in 1950. Decision-makers such as this Tribunal are often faced with conflicting or incomplete evidence. Section 119 no doubt was inserted into the legislation to assist with such difficulties. The Act is beneficial legislation. There comes a point, however, as there is in this case, where the evidence is in such conflict or so incomplete that beneficial determinations cannot be made beyond reasonable doubt. The Tribunal cannot, in this case, be satisfied on the evidence before it that there are sufficient facts to support continuing smoking to the level required by Factor 5(f)(ii). There are in the Tribunal's view, too many unexplained discrepancies and inconsistencies between the oral and documentary evidence. In such circumstances, the Tribunal is not satisfied beyond reasonable doubt that there are sufficient facts to support the raised hypothesis, either in terms of the level of smoking or the cessation date as required by the Statement of Principles. In such circumstances, in relation to Mr Jolly's smoking causing ischaemic heart disease, the Tribunal does not consider that this is made out and hence ischaemic heart disease is determined to be not war-caused.
In conclusion therefore, and as detailed previously in this decision, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, that Mrs Jolly is qualified for a War Widow's pension. The Tribunal has found that Mr Jolly suffered an Helicobacter pylori infection which led to a primary B-Cell lymphoma of the stomach which led eventually to his death in 1999. The War Widow's pension is payable from and including 15 January 1999.

I certify that the 131 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior
Member and Dr MEC Thorpe, Member
Signed:         ..............................................................................
  Rachel Quinn, Associate
Dates of Hearing 20, 23 July 2001
Date of Decision   14 November 2001
Solicitor for the Applicant          Mr Adam Halstead, NSW Legal Aid
Commission

Counsel for the Applicant Mr M Vesper of Counsel

Representative for the Respondent Mr P Godwin, Departmental Advocate.