Kilpatrick and Repatriation Commission - [2002] AATA 638

DECISION AND REASONS FOR DECISION [2002] AATA 638

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1074
VETERANS'       APPEALS     DIVISION
  Re:         DOROTHY JEAN KILPATRICK
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             30 July 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – widow's entitlement – glioblastoma multiforme – smoking - chronic obstructive airways disease - whether chest infection accelerated death - whether death war-caused - whether Statement of Principles satisfied
Veterans' Entitlements Act 1986 s8, s120, s120A
Doolette v Repatriation Commission (1990) 21 ALD 489
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Gorton (2001) AAR 370
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Deledio (1998) 83 FCR

REASONS FOR DECISION

30 July 2002 M.J. Carstairs, Member

This is an application by Dorothy Jean Kilpatrick (the applicant) for review of a decision of the Veterans' Review Board (the VRB) made on 27 June 2000. The VRB affirmed a decision of the Repatriation Commission (the respondent) that the death of the applicant's husband (the veteran) in 1986 from the effects of a malignant neoplasm of the brain, known as glioblastoma multiforme, was not due to war service.
At the hearing Mr D. Hyde of counsel, instructed by Di Marchi and Associates, solicitors, represented the applicant and Mr G. Purcell of counsel represented the respondent.
The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Tribunal also had before it exhibits marked A1 for the applicant and marked R1 to R4 for the respondent.
BACKGROUND
The veteran was born on 20 November 1920. He died on 6 July 1986 at the age of sixty-five from the effects of glioblastoma multiforme, a vigorous and usually fatal brain tumour. He had presented in June 1986 with a five-day history of confusion and behavioural change and a craniotomy was performed which revealed the primary brain tumour. The veteran suffered a decline on 4 July 1986 while still in recovery, with severe headache, elevated temperature and blood pressure, and raised intracranial pressure. A computed tomography scan (CT scan) identified brain haemorrhage and further treatment was withheld. Death occurred two days later. The death certificate (T12) dated 7 July 1986 cited glioblastome multiforme as the disease that directly led to death and no antecedent causes were identified in the certificate.
The veteran served in the Royal Australian Navy from 14 September 1943 to 14 June 1946 and had rendered operational service for the purposes of the Veterans' Entitlements Act1986 (the Act). During his service he was a stoker, principally on mine sweepers serving outside territorial waters. He had, as accepted disabilities under the legislation, bilateral otitis externa and otitis media. He also had as accepted, for treatment purposes only, but not as related to war service, the condition of pulmonary tuberculosis. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kilpatrick and Repatriation Commission

Details

AGLC: Kilpatrick and Repatriation Commission [2002] AATA 638
Case: [2002] AATA 638
Decision Date: 30 July 2002

CaseChat Overview and Summary

The case of Kilpatrick and Repatriation Commission involved the applicant, who sought a pension in respect of her husband's death, arguing that his death was attributable to his war service. The veteran had served in the Royal Australian Navy and had conditions that were accepted as related to his service, but he ultimately died from a brain tumour. The Tribunal was tasked with determining whether the veteran's death was war-caused under the Veterans' Entitlements Act 1986.

The primary legal issue before the Tribunal was whether the veteran's death arose out of or was attributable to his war service, specifically whether his death was war-caused. The applicant argued that the veteran's lung condition, exacerbated by his smoking habit, contributed to his death. The Tribunal had to consider whether this condition, if present, connected to his war service and whether it was a sufficient ground to deem his death war-caused. The Tribunal also needed to consider the medical evidence and determine whether a lung infection, which could be related to the veteran's smoking, was present and contributed to his death.

The Tribunal found that there was no sufficient ground to determine that the veteran's death was war-caused. The evidence presented, including the expert medical reports, indicated that the primary cause of death was the brain tumour and associated complications, not the lung condition. The Tribunal was reasonably satisfied that there was no lung infection present that might have contributed to the veteran's death. Therefore, the Tribunal affirmed the decision of the Repatriation Commission that the applicant did not qualify for the pension.

As a result, the Tribunal affirmed the decision under review, rejecting the applicant's claim that the veteran's death was war-caused. The Tribunal's decision was based on the medical evidence and the absence of a reasonable hypothesis connecting the veteran's lung condition or any other factor to his war service as the cause of his death.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Tribunal also had before it exhibits marked A1 for the applicant and marked R1 to R4 for the respondent.BACKGROUND The veteran was born on 20 November 1920. He died on 6 July 1986 at the age of sixty-five from the effects of glioblastoma multiforme, a vigorous and usually fatal brain tumour. He had presented in June 1986 with a five-day history of confusion and behavioural change and a craniotomy was performed which revealed the primary brain tumour. The veteran suffered a decline on 4 July 1986 while still in recovery, with severe headache, elevated temperature and blood pressure, and raised intracranial pressure. A computed tomography scan (CT scan) identified brain haemorrhage and further treatment was withheld. Death occurred two days later. The death certificate (T12) dated 7 July 1986 cited glioblastome multiforme as the disease that directly led to death and no antecedent causes were identified in the certificate. The veteran served in the Royal Australian Navy from 14 September 1943 to 14 June 1946 and had rendered operational service for the purposes of the Veterans' Entitlements Act1986 (the Act). During his service he was a stoker, principally on mine sweepers serving outside territorial waters. He had, as accepted disabilities under the legislation, bilateral otitis externa and otitis media. He also had as accepted, for treatment purposes only, but not as related to war service, the condition of pulmonary tuberculosis. The applicant and the veteran met in 1944 and married in 1946. The applicant claimed pension in respect of the veteran's death on 2 September 1986 (T5). However, a VRB decision dated 6 July 1988 affirmed the decision of the respondent that the applicant did not qualify. On 3 May 1999 the applicant again claimed in respect of her husband's death. Her claim was again rejected by the VRB in its decision dated 27 June 2000. The applicant appealed to this Tribunal on 8 September 2000.EVIDENCE The applicant gave evidence that the veteran had part of his lung removed in 1953 after being diagnosed with tuberculosis. She said her husband was a heavy smoker who smoked until his death. She said that he was noticeably limited by breathing problems and he was easily exhausted. She said that she was told when he was admitted to hospital with the brain tumour that there was no hope for him and he could only be made as comfortable as possible. The applicant said that the veteran was totally deaf in one ear and took aspirin for his ear condition. Ms B. Clarkson, the veteran's daughter, gave evidence that her father was always short of breath and was unable to play vigorous games when she and her brother were young. She confirmed her mother's evidence, that the veteran had smoked up to his death, smoking at least one packet a day. Ms Clarkson stated that she observed her father's deterioration but could not recall him complaining of chest infections, although she was aware of his breathlessness.

Evidence

Evidence Before The Court

The applicant claimed pension in respect of the veteran's death on 2 September 1986 (T5). However, a VRB decision dated 6 July 1988 affirmed the decision of the respondent that the applicant did not qualify. On 3 May 1999 the applicant again claimed in respect of her husband's death. Her claim was again rejected by the VRB in its decision dated 27 June 2000. The applicant appealed to this Tribunal on 8 September 2000.EVIDENCE The applicant gave evidence that the veteran had part of his lung removed in 1953 after being diagnosed with tuberculosis. She said her husband was a heavy smoker who smoked until his death. She said that he was noticeably limited by breathing problems and he was easily exhausted. She said that she was told when he was admitted to hospital with the brain tumour that there was no hope for him and he could only be made as comfortable as possible. The applicant said that the veteran was totally deaf in one ear and took aspirin for his ear condition. Ms B. Clarkson, the veteran's daughter, gave evidence that her father was always short of breath and was unable to play vigorous games when she and her brother were young. She confirmed her mother's evidence, that the veteran had smoked up to his death, smoking at least one packet a day. Ms Clarkson stated that she observed her father's deterioration but could not recall him complaining of chest infections, although she was aware of his breathlessness. In a written report dated 14 February 2001 (exhibit A1), Dr R.B. Collins, Consultant Forensic Pathologist, stated that after reviewing the material and medical records he agreed that the veteran's death was due to glioblastoma multiforme. He said this is a primary malignant tumour of the brain, most common in the age group 45-70, with a very poor prognosis. As the brain tumour was advanced on diagnosis in June 1986, the veteran would inevitably succumb to the condition. However, Dr Collins said his death was hastened due to fresh haemorrhage post-operatively, after which he became comatose and died. Dr Collins reported that it was likely that the veteran developed a terminal chest infection that would have limited his potential for survival after the complications of surgery. This, he said, could be related to his smoking habit. He said that with a tumour of this kind death is rapid for some individuals, but survival time may be extended with surgery, radiotherapy and chemotherapy. In oral evidence, Dr Collins said that he thought it reasonable to make the inference that the veteran's lung condition contributed to his death. He said the indicators were an increase in the veteran's temperature and signs in the veteran's chest. In saying this, Dr Collins referred to the clinical notes from the veteran's last admission (exhibit R4) where it was recorded [at p.29] "… stable chest: bilateral rhonchi". Dr Collins said that adopting a lying position post-operatively would have compounded the condition of the lung. As a result of the chronic obstructive airways disease, he said, the veteran's breathing would be poor, thus reducing the supply of oxygen to the brain, which would increase brain pressure. Dr Collins emphasised that on the admission notes the veteran did not have a chest infection. However, he said this did not rule out that he may have developed such an infection in hospital. He said that two possibilities could be offered for the veteran becoming feverish prior to death – that the source of infection was the wound in the brain, or that there was infection somewhere else. He said that the notation of bilateral rhonchi (ie abnormal whistling sounds caused by passage of air through narrowed or obstructed bronchial tubes) was consistent with chest infection.

Decision

Reasons for decision

The Tribunal is reasonably satisfied that there was no lung infection present that might have contributed to the veteran's death.DECISION The Tribunal affirms the decision under review.I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision herein of M.J. Carstairs, Member(sgd) Olympia Sarrinikolaou ClerkDate of Hearing: 12 November 2001, 26 March 2002Date of Decision: 30 July 2002Counsel for the Applicant: Mr D. HydeSolicitor for the Applicant: Messrs DeMarchi and AssociatesCounsel for the Respondent: Mr G. PurcellSolicitor for the Respondent: Advocacy Section, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

In a written report dated 5 July 2001 (exhibit R2) Dr B. Chambers, Neurologist, stated that the cause of death was raised intracranial pressure as a consequence of mass effect from the tumour and the associated haemorrhage with cerebral oedema. Dr Chambers said that the raised intracranial pressure led to compression of the brainstem with loss of regulation of cardiovascular and respiratory centres. He stated that he did not believe that chronic obstructive airways disease had contributed to the veteran's death and that the outcome would have been the same had he had normal lungs. Dr Chambers also stated that "… There may have been sepsis but this would have been a consequence of his neurological demise rather than vice versa". He also ruled out contribution from x-rays, or the administration of aspirin, which had been matters raised at one time by the applicant.CONSIDERATION OF ISSUES Section 8 of the Act, insofar as relevantly raised here, provides:(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: … (b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; Section 120 of the Act provides:(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. …(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;(c)the death of a person is war-caused or defence-caused; or(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act. (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b)the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.