JULIETA MOFFATT and REPATRIATION COMMISSION
[2009] AATA 845
•2 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 845
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4997
VETERANS' APPEALS DIVISION ) Re JULIETA MOFFATT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date2 November 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd].......................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – claim for widow’s pension – operational service with Royal Australian Air Force – death from Parkinson’s disease – application of Statements of Principles – reasonable hypothesis of relevant relationship to eligible war service not raised –– death not war-caused – decision affirmed
Veterans’ Entitlement Act 1986 (Cth), ss 5C, 5E, 6A, 7, 8, 11, 14, 119, 120, 120A
Administrative Appeals Tribunal Act 1975 (Cth), s 34JRepatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Repatriation Commission v Bey (1997) 149 ALR 721 at 730Blair and Repatriation Commission [2005] FCA 1076
REASONS FOR DECISION
2 November 2009 Mr R G Kenny, Senior Member BACKGROUND
1. Charles Richard Moffatt served in the Royal Australian Air Force (“RAAF”) from 19 May 1942 until 18 December 1945. He died on 9 October 2007 at the age of 92 years. On 1 February 2008, Julieta Moffatt, his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (“the Act”), lodged a claim, under s 14 of the Act, for a pension. This was on the basis that Mr Moffatt’s death was believed to be war-caused under s 8 of the Act. That claim was rejected by the Repatriation Commission (“the respondent”) on 21 April 2008 and, in turn, by the Veterans’ Review Board (“the Board”) on 30 September 2008. Mrs Moffatt seeks review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).
HEARING
2. Section 34J of the Administrative Appeals Tribunal Act 1975 makes provision for a hearing to be conducted in the absence of the parties. It reads:
34J If:
(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b) the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.
3. Both parties provided written submissions and consented to the matter being dealt with in their absence. I am satisfied that it is appropriate to proceed in that manner.
SERVICE
4. Mr Moffatt served in the Northern Territory from 15 March 1943 to 28 August 1944. It is not in dispute that he is a veteran and that all of his RAAF service constitutes eligible war service in the form of operational service in accordance with ss 5C, 7 and 6A, respectively, of the Act.
STANDARD OF PROOF, CAUSATION AND KIND OF DEATH
5. In order for the death of Mr Moffatt to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:
(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) …
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …
6. Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:
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.
7. The application of that provision is affected by the terms of s 120(3) and of s 120A(3) of the Act. Those provisions read:
120(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.
120AReasonableness of hypothesis to be assessed by reference to Statement of Principles …
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
8. The provisions noted above relate to matters of causation and require a consideration of the Statements of Principles published by the Repatriation Medical Authority (“RMA”). However, before applying those provisions, the “kind of death” relevant to Mr Moffatt must be determined. That is done to the decision-maker’s reasonable satisfaction in accordance with s 120(4) of the Act. Mrs Moffatt made reference in letters written by her to the respondent that Mr Moffatt suffered from a range of health problems associated with his back, hips, prostate and stomach as well as anxiety. She also referred to Parkinson’s disease and the debilitating impact that this condition had on him. The only condition nominated in Mr Moffatt’s death certificate is “progressive end stage Parkinson’s disease” of three years in duration. In the absence of any other medical evidence, I am satisfied that the kind of death in this matter was that associated with Parkinson’s disease.
EVIDENCE
mrs moffatt
9. In letters, dated 8 May 2008 and 9 November 2008, Mrs Moffatt referred to various health problems from which Mr Moffatt suffered and also described the difficulties she had in looking after him in his later years. She was concerned that the rejection of her claim meant that Mr Moffatt was not being given the degree of appreciation he deserved because of his RAAF service, particularly in the Northern Territory. She considered that it would be appropriate for him to have been buried in the Garden of Remembrance because of that service.
mr moffatt’s “memoirs”
10. In evidence was a document completed by Mrs Moffatt but dictated to her by Mr Moffatt. It is entitled “THE CHARM: the Life of Charles Richard Chapman Moffatt September 20, 1915 – October 9, 2007”. It purports to be Mr Moffatt’s memoirs and provides insights into his life before, during and after his RAAF service. Included therein are references to incidents of trauma which he claimed were experienced by him whilst in the RAAF.
11. Two of those incidents occurred during bombing raids by Japanese aircraft. In the first, Mr Moffatt dived into a slit trench and was “trapped eating dust” as two other men landed on top of him. In the second, he rapidly descended a tower and another man, also descending the tower, landed on top of him and, again, Mr Moffatt was “eating dust”. No description is provided by Mr Moffatt of any detrimental impact on him from those experiences.
12. On another occasion, Mr Moffatt fell from a ladder while working on electrical wiring. He described a fall of “about 8 feet” to the ground where he lay for an unknown period before he “woke up” feeling “funny”. He described feeling “sick” from electric shock at the time but was ordered to return to his work. No reference is made to a head injury on that occasion.
13. A further incident occurred while Mr Moffatt was involved in the use of a crane to unload a barge. The crane malfunctioned, its jib swung towards him and he was knocked down “into the haul [sic] which was five or six metres deep”[1]. Mr Moffatt described passing out for an unknown period and waking up “already in a hospital tent” where he stayed for some 10 days. Whilst there, his treatment related to a back injury. Again, no reference is made by Mr Moffatt to a head injury on that occasion. He described his back injury as continuing to cause him pain after he returned to duties and noted that, a few days later when scaling a rope ladder on the side of a barge, he “passed out once or twice” before he could complete the climb. He attributed the occasions of passing out to his back pain.
[1] It may be that this was reference to the cargo “hold” of the barge.
14. In the memoirs, Mr Moffatt also referred to a period of hospitalisation in 1 Mobile Receiving Station (“1 MRS”) at Bachelor on the Stuart Highway because of a stomach complaint.
medical records
15. Mr Moffatt’s service medical records were in evidence. They identify two periods of hospitalisation at 1 MRS in June/July 1943 and in June/July 1944 while Mr Moffatt was serving in the Northern Territory. On each occasion, the admission was for dyspepsia. On each occasion, he was discharged fit for duty. Also in evidence was Mr Moffatt’s discharge medical report, dated 13 December 1945. The first question in that report reads:
From what disabilities (wounds, disease injuries) have you suffered while a member of the RAAF?
16. The response is a reference to the two periods of hospitalisation, noted above, for dyspepsia. As a result of a clinical examination at that time, Mr Moffatt is described as having no abnormality detected (“NAD”). No reference is made in that report or any other service records to any incident of trauma to Mr Moffatt’s head.
17. Documents from the Royal Darwin Hospital refer to two periods of hospitalisation in 2007. In the first, reference is made to the presence of Parkinson’s disease, prostate cancer, lip cancer, bilateral hip replacement and hiatus hernia. In the second, the principal diagnosis is Parkinson’s disease.
writeway report
18. Writeway Research Service Pty Ltd is, from time to time, engaged by the respondent to prepare reports on contentions raised by veterans. These reports are prepared by retired service personnel after consultation with relevant records and individuals who were involved in aspects of service relevant to the particular veteran. Such a report, dated 20 May 2009, was completed in this matter. The reporter, Dr David Wilson, confirmed that Japanese raids were conducted in the Northern Territory while Mr Moffatt served there but was not able to confirm that Mr Moffatt personally experienced any air raids during that time.
CONTENTIONS
19. Mrs Moffatt’s solicitor, Mr Bill Piper, completed a written submission on 14 October 2009. He submitted that Mr Moffatt had experienced three episodes of cerebral trauma during his service and that each was sufficient to satisfy the requirements of the Statement of Principles for Parkinson’s disease. These were the dive into a slit trench, the fall from a ladder and the fall after being struck by a crane. In particular, he submitted that the last of these pointed to a loss of consciousness which, because Mr Moffatt did not become conscious until he was in hospital, must have lasted for the period required by the Statement of Principles.
20. For the respondent a written submission was completed on 19 October 2009 by Mr John Stoner. He submitted that there was no reference in Mr Moffatt’s service records of any trauma to his head or to any of the incidents relied on by Mr Piper and that this was not a matter where s 119 of the Act could be relied on to remedy any deficiency in the evidence. Rather, he submitted that there must be material which points to each element of the factor in the Statement of Principles. Mr Stoner submitted that there was no material which pointed to any service-related factor as provided for in the relevant Statement of Principles for Parkinson’s disease.
CONSIDERATION
21. The procedure to be adopted in determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service the veteran rendered was set out by the Federal Court in Repatriation Commission v Deledio[2] in the following terms:
(i)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.
(ii)If the material does raise such an hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
(iii)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.
(iv)The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused… 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.
[2] (1998) 83 FCR 82 at 92 – 93.
step 1: - hypothesis
22. The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. Mr Piper submitted that Mr Moffatt’s Parkinson’s disease resulted from the effects upon his body of any of the three incidents which he had identified. I accept that these constitute hypotheses of a connection to service. No other causal factor was submitted as being relevant to Mrs Moffatt’s claim and no hypothesis is raised in relation to any other factor.
step 2:- statement of principles
23. The second step requires identification of the relevant Statement of Principles for Parkinson’s disease. At the date of Mrs Moffatt’s claim, this was Instrument No. 65 of 2007. Consideration must be given to her claim under that Instrument.
step 3:- reasonableness of the hypothesis
24. The third step requires consideration of whether an hypothesis raised is a reasonable one for the purposes of subsection 120(3) of the Act. This step is not concerned with proof of the claim. Rather, it relates to the question of whether there is some material which calls for a determination under subsection 120(1) of the Act[3]: This requirement will be met if an hypothesis fits or is consistent with the template provided by a relevant factor and associated definition(s) in the Statement of Principles. The following factor and definition in the Statement of Principles for Parkinson’s disease are potentially relevant to Mr Moffatt’s circumstances:
having cerebral trauma more than five years before the clinical onset of Parkinson’s disease;
cerebral trauma means:
(a) a head injury that results in skull fracture;
(b)a blunt head injury that causes loss of consciousness lasting at least thirty minutes or post-traumatic amnesia lasting at least thirty minutes, or which causes signs or symptoms of brainstem dysfunction; or
(c)n injury that results in intracranial or brainstem haemorrhage or subdural haematoma;
[3] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.
25. That factor must be related to the relevant service rendered by Mr Moffatt[4]. If the hypothesis under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
[4] See s 196B(2)(d) and (e) of the Act and clause 5 of Instrument No. 65 of 2007 (Statement of Principles concerning Parkinson’s disease and Parkinsonism).
26. There is no material before me which points to Mr Moffatt suffering a skull fracture, an intracranial or brainstem haemorrhage or a subdural haematoma as referred to in paras (a) or (c) of the definition of cerebral trauma. There is no material before me which points to post-traumatic amnesia or signs or symptoms of brainstem dysfunction as referred to in para (b) of the definition of cerebral trauma. No reasonable hypothesis of a relevant relationship is raised in relation to those matters. That leaves for consideration the question whether that material points to a blunt head injury which caused loss of consciousness lasting at least thirty minutes. The terms injury and blunt are not defined in the Statement of Principles. The Australian Concise Oxford Dictionary[5] defines injury as “a physical harm or damage”. It does not define blunt in the context of an injury but refers, generally, to lacking in sharpness”.
[5] 4th Edition, 2004.
27. Mr Moffatt’s memoirs refer to two occasions of servicemen falling on top of him. No injury to Mr Moffatt’s head is described by him on those occasions. The memoirs point to a fall from a ladder to the ground and a fall from the deck into the hold of a barge. For the fall from the ladder, the memoirs point to some form of electric shock, rather than a head injury, as being the reason for what may have been a loss of consciousness. For the fall into the barge, the memoirs describe back pain and, subsequent to being in hospital for that condition, point to back pain as being a reason for what may have been a loss of consciousness. The material does not point to any form of cerebral trauma or to physical harm or damage to his head. Neither does Mr Moffatt’s discharge medical make any reference to a head injury. Indeed, the response to the first question on that report denies any disabilities on service apart from dyspepsia.
28. The terms of s 119(h) of the Act require that account be taken of any difficulties which lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including those attributable to the passage of time and the absence or deficiency in relevant official records. In this matter, there is no apparent shortfall in documentation which includes the discharge medical and hospital treatment records. None of these makes reference to a head injury. The memoirs of Mr Moffatt describe two situations where there may have been a loss of consciousness but they make no reference to trauma to his head which would constitute any head injury, let alone a blunt head injury. Mr Moffat’s account relating to the fall from the ladder which left him feeling “funny” points not to a head injury but to the effects of electric shock. Mr Moffat’s account of the fall into the barge’s hull focuses on back pain and to the severity of the back pain rather than to any head injury. The reference is to back pain at such a level that it caused Mr Moffatt, subsequently, to “pass out”. Neither does the material before me point to the duration of any loss of consciousness as required by the Statement of Principles. The first loss of consciousness is said to be for an “unknown period” and the other lasted until he was in a hospital tent. There is no material which points to the time-frame involved in that process. It is not the case that the Tribunal can proceed on the basis of an assumption that the material points to a lapse of the required period of 30 minutes.
29. The hypothesis advanced by Mr Piper is based on the memoirs of Mr Moffatt. It relies on assumptions; it lacks objective material which points to the terms of the template of the Statement of Principles; and it is speculative in nature[6]. Such an hypothesis is not a reasonable one for the purposes of s 120(3) of the Act.
[6] Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170; Repatriation Commission v Bey (1997) 149 ALR 721 at 730; Repatriation Commission v Deledio (1998) 83 FCR 82 at 93 cited in Blair and Repatriation Commission [2005] FCA 1076 at para 25.
step 4:- is death war-caused?
30. As a reasonable hypothesis of a relevant relationship is not raised between Parkinson’s disease and Mr Moffatt’s service, it follows that his death from that condition is not war-caused in accordance with s 8 of the Act.
DECISION
31. The Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Mr R G Kenny, Senior Member.
Signed: ……………[Sgd]…………………
Emily Clarke, Associate
Date of Reserved Decision 22 September 2009
Date of Decision 2 November 2009
Solicitor for the Applicant Mr B Piper
Advocate for the Respondent Mr J Stoner
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