Joyce Hughes and Repatriation Commission
[2013] AATA 238
•19 April 2013
[2013] AATA 238
Division VETERANS' APPEALS DIVISION File Number
2011/3906
Re
Joyce Hughes
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 19 April 2013 Place Adelaide The decision under review is set aside and in substitution for that decision it is decided that Mr Hughes' death was war-caused and therefore Mrs Hughes is eligible to be paid a widow's pension, with a date of effect of 18 May 2010.
..........................[Sgd]..............................................
Senior Member K Bean
CATCHWORDS
VETERANS' ENTITLEMENTS - Claim by widow - Veteran's death due to ischaemic heart disease secondary to smoking - Whether veteran's smoking habit related to operational service - Whether material points to a reasonable hypothesis - Decision under review set aside.
LEGISLATION
Veterans Entitlements Act 1986 (Cth), ss 8(1), 13, 120(1) and (3), 120A, 196B(2)(d) and (e)
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Knight v Repatriation Commission [2010] FCA 1134
Forrester and Repatriation Commission [2012] AATA 846
McKenna v Repatriation Commission (1999) 86 FCR 144
Onorato v Repatriation Commission [2011] FCA 1507Gilkinson v Repartiation Commission (2011) 197 FCR 102
SECONDARY MATERIAL
Statement of Principles concerning Ischaemic Heart Disease, Instrument No. 89 of 2007
REASONS FOR DECISION
Senior Member K Bean
19 April 2013
INTRODUCTION
On 16 March 1990, the applicant’s husband, Mr Kenneth Hughes, died suddenly of a heart attack. He was sixty-three years old and he and Mrs Hughes had been married for forty years.
Although he had ceased smoking quite some time before he died, Mr Hughes smoked reasonably heavily between 1950 and 1982, and there is no dispute that his smoking contributed to him developing ischaemic heart disease, which ultimately resulted in his death. Mrs Hughes also contends that her husband took up smoking at least partly in response to the ongoing stress and anxiety he was continuing to suffer as result of his experiences during World War II. She points to the fact that he was not only a member of the Royal Australian Navy during the war, but was deployed on operational service between 3 July 1944 and 5 August 1946. Indeed he was serving on HMAS Australia when it was hit on a number of occasions by a Japanese “kamikaze” aircraft, resulting in the deaths of many of Mr Hughes’ fellow sailors.
Mrs Hughes accordingly contends that, as her husband took up smoking at least partly as a result of his war-time experiences, and smoking contributed to his death, Mr Hughes’ death was war-caused and she is therefore entitled to receive a widow’s pension.
However, Mrs Hughes’ claim was unsuccessful before the Repatriation Commission, and the Veterans’ Review Board (VRB), and accordingly she has now sought review of the Commission’s decision, as affirmed by the VRB, by this Tribunal.
LEGISLATIVE FRAMEWORK
Pursuant to s 13 of the Veterans’ Entitlements Act 1986 (the Act), Mrs Hughes will be entitled to a widow’s pension if her husband’s death was war-caused within the meaning of s 8(1) of the Act. As her case relies on her husband’s operational service, the reasonable hypothesis standard applies. In other words, I must determine that Mr Hughes’ death was war-caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. I shall be so satisfied if the material before me does not raise a reasonable hypothesis connecting his death with his service: ss 120(1) and 120(3) of the Act. Section 120A of the Act requires the reasonableness of a hypothesis to be assessed by reference to any relevant Statement of Principles.
It is well established that the approach to be taken in applying these provisions is that outlined in Repatriation Commission v Deledio (1998) 83 FCR 82 as follows (at p. 97):
“…
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must them ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.” [1]
[1] The second sentence of Step 2 in Delidio was obiter and is not correct: Bull v Repatriation Commission (2001) 66 ALD 271. Where no SoP is in force, the veteran’s application will not necessarily fail, but must be determined in accordance with s 120(1) to (3) on the basis of the medical evidence before the Tribunal.
It is also apparent from subsequent cases that the hypothesis necessary to satisfy step one of the Delidio test must itself be a reasonable hypothesis.[2]
[2] See the discussion in Forrester and Repatriation Commission [2012] AATA 846 at [49] – [57].
THE ISSUES
There is no dispute between the parties that Mr Hughes died as a result of a heart attack or myocardial infarction, secondary to coronary arteriosclerosis, in turn caused by ischaemic heart disease. There is also no dispute between the parties that Mr Hughes smoked between 1950 and 1982, and that his smoking contributed to his ischaemic heart disease. What is in dispute however is whether Mr Hughes’ smoking habit was related to his operational service such as to allow a conclusion to be drawn that his death was “war-caused”. I will therefore focus primarily on that issue in considering whether Mr Hughes’ death was “war-caused” within the meaning of the Act, such that Mrs Hughes is entitled to receive a widow’s pension.
WAS MR HUGHES’ DEATH “WAR-CAUSED”?
In addressing this question, I propose to follow the steps outlined in Deledio, as set out above.
Deledio step one: does the material point to a reasonable hypothesis?
The material before me suggests that during his operational service, Mr Hughes suffered a number of extremely traumatic events. In particular, as I have referred to above, he was aboard HMAS Australia in January 1945 when the vessel was hit by a Japanese “kamikaze” aircraft five times over the course of six days. Approximately thirty-nine of Australia’s crew were killed in those attacks.[3]
[3] Exhibit 3 and 6.
In a letter provided to the Tribunal, Mrs Hughes stated that her husband’s memories of those events “never faded” and it was her impression that her husband remained “on edge for the rest of his life”.[4] She said that his sleep was often disturbed and that he had been unable to talk to her about his experiences. She said that if ever his service arose in conversation, he would start to speak about it but then “choke up with emotion”.[5]
[4] Exhibit 4A.
[5] Exhibit 4A.
Also before me is a report from Dr Paul Davis, psychiatrist, dated 22 March 2012 in which Dr Davis refers to the above statements by Mrs Hughes. In light of those statements, Dr Davis says in his report:
“… It is not possible to make a formal diagnosis of psychiatric disorder in the case of Mr Hughes. However it is very likely that he was emotionally troubled by his wartime experiences and that he developed some symptoms of anxiety as a result of his war service which he probably managed to the best of his ability. In that era, it was very common for returned service men and women to endure the emotional consequences of distressing wartime experiences without complaint or seeking professional help. It is not possible to give even an approximate date of onset of any possible psychiatric disorder but any symptoms of anxiety or overwhelming stress would obviously have been after the incidents which are reported by Mrs Hughes. It is not unusual for there to be a delayed onset for anxiety symptoms after stressful incidents, even several years later. …”[6]
[6] Exhibit 7.
Dr Davis also gave oral evidence at the hearing which was consistent with the statements in his report.
Mrs Hughes also stated, in her letter and her oral evidence, that her husband began to smoke in 1950, some years after the ending of his service on 5 August 1946. In her letter she stated that at the time Mr Hughes took up smoking he said to her words to the effect that “I’m going to try smoking, it might be good for the nerves”.[7]
[7] Exhibit 4A.
She elaborated on this in her oral evidence, indicating that she had a clear memory of her husband standing in their kitchen at the time he said this to her. She said that she had come home from work to find him smoking a cigarette, at which point he indicated that he had decided to try smoking as it “might be good for the nerves”. She also said that she was “flabbergasted” that he had decided to start smoking and that he had been raised in a very strict household where there was no smoking, drinking or swearing.
In his report and oral evidence, Dr Davis also addressed the question of a possible connection between Mr Hughes’ service and his decision to take up smoking. He stated as follows in his report:
“… It seems that Mr Hughes took up smoking several years after the end of the Second World War. By the account of Mrs Hughes, her husband felt that he should try smoking to see if it would “settle his nerves”. Nicotine is a psycho-stimulant agent and is commonly used as a way of settling mild to moderate symptoms of anxiety. This is often believed to be the reason why so many patients with psychiatric illness also have a problem with nicotine addiction. I think it is quite a reasonable contention that Mr Hughes’ emotional symptoms, in particular anxiety, which stemmed from his service experiences then contributed to the commencement of his smoking habit, even several years after completing his service in the Australian Navy.”[8]
Dr Davis’ oral evidence was also consistent with his report in this respect.
[8] Exhibit 7.
Mr Keady, who appeared as counsel for Mrs Hughes, accordingly contended that the material pointed to a hypothesis that Mr Hughes’ decision to take up smoking was contributed to by the traumatic experiences he had suffered during his operational service, and their psychological aftermath. Accordingly, as his operational service contributed to his decision to commence smoking, it also contributed to his eventual death from a disease related to smoking.
However Mr Crowe, who appeared as advocate for the respondent, contended that the material, taken as a whole, did not point to a hypothesis connecting Mr Hughes’ death with his service.
In support of that contention, Mr Crowe placed some reliance upon a smoking questionnaire completed by Mrs Hughes or on her behalf in April 1990.[9] At question five of that questionnaire, Mrs Hughes was asked “Do you consider that the service environment or conditions of service played any part in the commencement of his smoking habit, and if so why?” to which she responded “I did not meet my husband until 1947”.[10] Mr Crowe accordingly contended that not all of the material before the Tribunal was consistent with the proposition that Mrs Hughes believed her husband had started smoking for service related reasons. He also pointed to the fact that Mrs Hughes had not in fact claimed a relationship between her husband’s smoking and his service prior to 2011.
[9] T8/38.
[10] T8/38.
In addition, Mr Crowe contended that in order for a viable hypothesis to be raised, it was necessary for the material to point to Mr Hughes having suffered from a defined or diagnosable psychiatric condition, related to his service, at the time he decided to take up smoking. In the absence of material pointing to such a diagnosis, Mr Crowe contended that a hypothesis linking Mr Hughes’ death with his service had not been established.
However in my view, there are difficulties with each of these contentions. Firstly, it is my understanding that at the first Deledio step, the decision maker’s task does not involve weighing competing evidence or fact finding. Emmett J stated in Kattenberg v Repatriation Commission (2002) 73 ALD 365, at [38] as follows:
“In considering, under s 120(3), whether the material raises a reasonable hypothesis, the tribunal should not be concerned with conflicts in the material, whether they be of opinion or fact. The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. The tribunal is bound to have regard also to material that is opposed to the material that supports a veteran's claim for the purposes of examining the validity of the reasoning that supports the claim that there is a connection between the incapacity and the service. However, a hypothesis may still be reasonable although it is unproved and is opposed to the weight of the evidence. The use of the terms "the material" and "raise" suggest that s 120(3) is not concerned with the proof or satisfaction of a claim, but whether there is some "material" that calls for a determination under s 120: Bushell v Repatriation Commission (1992) 175 CLR 408 at 413-415; 29 ALD 1; 109 ALR 30.”
Similarly, and more recently, Katzman J stated in Knight v Repatriation Commission [2010] FCA 1134 at [35]:
“… Until this stage is complete, the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis. It is not to determine whether the material before it establishes the necessary facts, only if the material “points to some fact or facts (“the raised facts”) which support the hypothesis” (Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ), which in turn must be supported by the applicable SoP. Put another way, in the other key High Court decision, “the material before the Commission [or Tribunal] must raise some fact or facts which give rise to the hypothesis” (Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 (“Byrnes”) at 569 per Mason CJ, Gaudron and McHugh JJ). …”.
Katzman J went on to observe (at [38]):
“…Thus, an hypothesis may be reasonable, though unproved, and contrary to the weight of the evidence: Kattenberg at [38]. As the Full Court put it in East at 533, a reasonable hypothesis is “an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities…”.[11]
[11] See East v Repatriation Commission (1987) 16 FCR 517.
Whilst some of these comments were made in the context of Deledio step three, insofar as they bear upon how the Tribunal should assess the existence of a hypothesis where the evidence is inconsistent, they are equally applicable to step one. Accordingly, the fact that not all of the evidence is consistent does not stand in the way of a conclusion being drawn that the material, taken as a whole, points to the requisite hypothesis. I consider that a significant part of the material before me, namely Mrs Hughes’ evidence and that of Dr Davis, points toward facts which, if true, would support a hypothesis that Mr Hughes took up smoking in response to service related stress and anxiety, thus creating a connection between his service and his subsequent death from a smoking related disease. In my view, that is sufficient to support the existence of a reasonable hypothesis and to satisfy Deledio step one.
In relation to Mr Crowe’s contention that it was essential to the hypothesis for the material to point toward Mr Hughes suffering from a diagnosable psychiatric condition at the time he commenced smoking, I am not satisfied that that is an essential part of a reasonable hypothesis linking Mr Hughes’ death with his service. In order to satisfy Deledio step one, the hypothesis need only make a connection between Mr Hughes’ death and his service. It is sufficient in my view that one of the elements of the hypothesis is that Mr Hughes suffered from emotional symptoms, including sleeplessness, tension and anxiety, which were attributable to his war service, and that Mr Hughes took up smoking at least partly in an attempt to alleviate those symptoms. That is sufficient in my view to establish a reasonable hypothesis of a causal connection between his death and his service such as to satisfy Deledio step one. In other words, so long as it postulates a plausible causal connection between service and smoking, it is not necessary in my view that the hypothesis does so via a diagnosable psychiatric condition.
Accordingly, I am satisfied that the material points to a reasonable hypothesis connecting Mr Hughes’ death with his operational service. If the hypothesis had postulated a particular psychiatric condition, then, as both parties conceded in submissions filed after the hearing,[12] it would have been necessary to refer to the applicable SoP relevant to that condition.[13] However it does not follow from that proposition that, if emotional symptoms are put forward as part of a hypothesis, then that hypothesis must include a psychiatric condition.
[12] At the Tribunal’s request, the applicant provided further written submissions dated 27 November 2012 and 21 January 2013 and the respondent provided further written submissions dated 5 December 2012.
[13] See McKenna v Repatriation Commission (1999) 86 FCR 144, at [21].
If I had been against Mrs Hughes on the question of whether a reasonable hypothesis was raised linking her husband’s smoking with his service via his emotional symptoms, I would have needed to consider whether the material pointed to the existence of a psychiatric disorder.[14] However as I am satisfied that a reasonable hypothesis has been raised on the basis of Mr Hughes’ emotional or psychological symptoms, it is unnecessary on my reasoning to consider whether an alternative hypothesis is raised linking Mr Hughes’ smoking with his service via an actual psychiatric condition.
Deledio step two – is there a SoP?
[14] See Onorato v Repatriation Commission [2011] FCA 1507.
There was no dispute between the parties that the applicable Statement of Principles is that relating to ischaemic heart disease, being Instrument Number 89 of 2007 (the SoP) which relevantly provides as follows:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service is:
…
(g) where smoking has ceased prior to the clinical onset of ischaemic heart disease:
(i) smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of smoking cessation; or
(ii) smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of smoking cessation; or
(iii) smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; or
…”
Deledio step three – does the hypothesis fit the SoP?
Mr Crowe conceded, properly in my view, that if a reasonable hypothesis was raised, it did fit the template of the SoP, as the hypothesis included the requisite amount of smoking such as to satisfy factor 6(g)(ii), and that level of smoking was pointed to by the material. Further the hypothesis also postulated a relationship to service, via the stress and emotional sequelae of service contributing to Mr Hughes taking up smoking, which as I have indicated above, I consider is also pointed to by the material. In this regard, I note that a factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a person if it “was contributed to in a material degree by, or was aggravated by, that service”: s 196B(14) of the Act.[15] Accordingly it is sufficient to satisfy step three that the material points to a material contribution from Mr Hughes’ service to his smoking.
[15] See also Gilkinson v Repatriation Commission (2011) 197 FCR 102.
It follows that the hypothesis which I consider has been raised on the material fits SoP number 89 of 2007 and therefore step three of Deledio is also satisfied.
Deledio step four – is it established beyond reasonable doubt that the veteran’s death was not war-caused?
Mr Crowe also conceded that, if I was satisfied that the other steps were met, I could not be satisfied beyond reasonable doubt that Mr Hughes’ death was not war-caused, and I also consider that concession to have been properly made.
Whilst there are some tensions or inconsistencies in the evidence, which I have alluded to above, those inconsistencies are not such as to cause me to seriously doubt the substance of Mrs Hughes’ evidence. Indeed, whilst her recollection may have been affected by the passage of time in some respects, I accept that her husband did tell her that one of the reasons he took up smoking was that he believed it “might be good” for his nerves. Further, I also accept the explanation Mrs Hughes gave at the hearing as to why she had not relied upon a connection between her husband’s smoking and his service earlier. I note that part of the explanation she gave was that at the time she completed a smoking questionnaire in April 1990, her husband had only very recently passed away and she was still in a state of acute distress.
As I am not satisfied beyond reasonable doubt that there is no sufficient ground for finding Mr Hughes’ death was war-caused, I am accordingly required to conclude that it was war-caused within the meaning of the Act.
I therefore propose to set aside the decision under review and substitute for that decision a decision that Mrs Hughes is entitled to a widow’s pension with effect from 18 May 2010, being three months before her original claim was lodged.[16]
[16] See s 20(1) of the Act.
DECISION
The decision under review is set aside and in substitution for that decision it is decided that Mr Hughes’ death was war-caused and therefore Mrs Hughes is eligible to be paid a widow’s pension, with a date of effect of 18 May 2010.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean .......................[Sgd].................................................
Administrative Assistant
Dated
Date(s) of hearing 11 September 2012 Date final submissions received 21 March 2013 Advocate for the Applicant Mr Paul Keady, The Legacy Club of Adelaide Inc. Counsel for the Respondent Mr Adrian Crowe Solicitors for the Respondent Department of Veterans' Affairs Advocacy Section
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