Kitt and Repatriation Commission
[2007] AATA 1246
•23 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1246
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/352
VETERANS' APPEALS DIVISION ) Re MAVIS MELENA KITT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Robin Hunt, Member Dr Maxwell Thorpe Date23 April 2007
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution decides that the death of the late veteran, Norman Henry Kitt, on 9 August 1994, was ‘war-caused’ within the meaning of that term in the Veterans’ Entitlements Act 1986 (the Act), and that Mavis Melena Kitt is entitled to a widow’s pension pursuant to the provisions of that Act, with effect from 23 March 2003.
............. [Sgd] ...............
R Hunt
Presiding Member
CATCHWORDS
Veterans Affairs – widow’s pension claim – kind of death - death from cardio respiratory failure, lobar pneumonia and Parkinson’s disease – pneumonia a terminal event resulting from bronchitis and emphysema – accepted history of 44 pack-year smoking habit - hypothesis that veteran began smoking during service due to the stress of service and that heavy smoking led to war-caused chronic bronchitis – finding of chronic bronchitis – ineffective cough when coupled with severe Parkinson’s disease – chronic bronchitis contributed to death - hypothesis reasonable - Statement of Principles satisfied – hypothesis not disproved beyond reasonable doubt –decision set aside
LEGISLATION
Veterans’ Entitlement Act 1986 ss 8, 120 and 120A
CASELAW
Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission [2003] FCAFC 136
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bull v Repatriation Commission (2001) 188 ALR 756
Repatriation Commission v Towns [2003] FCA 1262
Repatriation Commission v Bey (1997) 79 FCR 364
Cooke v Repatriation Commission (1997) 45 ALD 205
Repatriation Commission v Stares (1996) 41 ALD 212
Connors v Repatriation Commission[2000] FCA 783
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517REASONS FOR DECISION
Senior Member Robin Hunt
Member Dr Maxwell Thorpe
Summary
1.Mavis Melena Kitt, the applicant, is the widow of the late veteran, Norman Henry Kitt, who died on 9 August 1994. Mrs Kitt claims that her late husband’s death was war-caused and that, in consequence, she is entitled to a widow’s pension. We have decided that Mr Kitt’s death due to cardio respiratory failure and lobar pneumonia was war-caused. Our reasons are set out below. This finding means Mrs Kitt’s claim is successful.
Background
2.According to the certificate of death before the tribunal, the veteran died of:
· cardio respiratory failure, days,
· lobar pneumonia, days, and
· severe Parkinson’s disease with cachexia, months.
3.Mrs Kitt claimed a widow’s pension, pursuant to the provisions of the Veterans’ Entitlements Act 1986, on the ground that her late husband suffered from a war-caused smoking habit which contributed to chronic airways disease and that this respiratory condition contributed to his death. Her claim was rejected and she sought review of the decision to reject her claim.
4.There has been no challenge to the accuracy of any of the background material before us as set out in the applicant’s facts and contentions. Some further unchallenged history has been provided by the applicant in oral evidence and by the respondent in its statement of issues. Accordingly, we find as follows:
(a)Norman Henry Kitt served in the Australian Army from 20 April 1942 to 31 July 1946. This was operational service for the purposes of the Act.
(b)Norman Henry Kitt married the applicant, Mavis Melena Kitt, in 1946 in Australia. Mavis Kitt met the veteran at Oberon in NSW soon after his return from the war.
(c)Mr Kitt was a smoker when Mrs Kitt met him. He developed emphysema, which was diagnosed a few months before his death, and he stopped smoking then.
(d)Mr Kitt worked for a time after the war until his psychiatric problems led to his receiving the invalid pension.
(e)Mr Kitt was diagnosed with Parkinson’s disease and this disease contributed to his death.
(f)We accept Mrs Kitt’s oral evidence that Mr Kitt was a heavy smoker when she met him shortly after he returned from war service. Mrs Kitt gave oral evidence that Mr Kitt told her he started smoking in the army. There is no evidence before us to the contrary. We therefore find that Mr Kitt’s smoking habit was war-caused. We further note that the respondent accepted in its findings made in the course of its decision and reasons on 7 October 2004 that the veteran had a 44 pack-year smoking history and that this was a service related habit.
(g)Mrs Kitt observed that her husband, Norman, continued as a heavy smoker until shortly before his death. She gave evidence her husband had been a big man before he became unwell from emphysema and Parkinson’s disease and that his weight dropped from about 15 stone to 5 stone. We accept her evidence about Mr Kitt’s continued heavy smoking, his severe weight loss, that he was unable to eat much in the last years of his life and could swallow only soft foods and fluids.
(h)Norman Kitt died on 9 August 1994 as a result of Parkinson’s disease, respiratory failure and pneumonia, as described on the death certificate. There is no suggestion to the contrary and no post mortem was performed. The further question is whether the respiratory failure and/or pneumonia was simply attributable to Mr Kitt’s Parkinson’s disease or whether the war-caused smoking habit brought about chronic bronchitis or emphysema which played a role in the kind of death as well as the Parkinson’s disease effect.
Issue
5.At issue is the characterization of the kind of death suffered by Mr Kitt. According to the certificate of death before us, Mr Kitt died from several causes. The respondent argues that Mr Kitt died in consequence of Parkinson’s disease but his widow says that chronic bronchitis was a contributory factor or even the major factor and that this condition was war-caused, leading to a conclusion that death was war-caused.
Kind of death
6.Our first task is to determine the ‘kind of death’ Mr Kitt suffered. Then we must decide if the veteran’s death was war-caused. The standard of proof we must apply to determine whether Mr Kitt’s death was war-caused is set out in s 120 of the Act. Subsections (1) and s 120(3) apply in this instance as the case involves a claim that death was war-caused. If there is a relevant Statement of Principles (SoP) concerning a condition that brought about a veteran’s death, subs. 120A(3) also applies. This subsection requires us to consider any hypothesis connecting the death with particular service in terms of the SoP before it can be found ‘reasonable’. In order to ascertain whether a SoP applies, it is also necessary to identify the ‘kind of death’ suffered by the veteran: see Selway J in Repatriation Commission v Hancock [2003] FCA 711. Justice Selway also dealt with the situation where there is more than one cause of death as follows:
“… there may be multiple medical conditions that cause a particular death. For example, in this case it is obvious that the primary medical condition that caused death (was) … small bowel adenocarcinoma. However, if Dr Betty is correct then there may have been another medical cause, at least in the sense of a medical cause which expedited the death. This was osteoarthrosis of both knees. It was necessary that both of these be considered”. (paragraph 8).
7.Our determination as to the kind of death suffered by Mr Kitt is made on the balance of probabilities: s 120(4) of the Act and cases including Hancock cited above, Fogarty v Repatriation Commission [2003] FCAFC 136 at [34] and the cases quoted there; Benjamin v Repatriation Commission (2001) 70 ALD 622 at [53]-[54].
8.We are required to identify the real or operative cause of death: see Fitzgerald v Penn (1954) 91 CLR 268. In Repatriation Commission v Towns [2003] FCA 1262, Justice Tamberlin observed about the meaning of ‘kind of death’, that “it does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring ‘suddenly’ or in a particular location or set of circumstances. The expression ‘kind’ does not mandate a determination of the precise medical causation of the death.”
9.Subsequently, in Hayes v Repatriation Commission [2005] FMCA 125, McInnes FM considered whether it is correct to say a condition could contribute to death. He distinguished the discussion of ‘material contribution’ in the case of Treloar v Australian & Telecommunications Commission (1990) 12 AAR 535. As he pointed out, Treloar’s case was not concerned with consideration of a medical cause of death and dealt with different legislation that involved ‘material contribution’ to death, a concept not raised in the provisions we are proceeding under in the present case. The tribunal followed a similar approach to that suggested by McInnes FM in Martyn and Repatriation Commission [2006] AATA 895. The members sitting on that case were “mindful that in regard to cause of death, a material contribution is not relevant, but rather, to be relevant, a condition has to be an integral part of the ‘kind of death’. The members added that they relied on Hayes in this respect. We have adopted this approach in seeking to determine whether war-caused chronic bronchitis or emphysema was an integral part of the kind of death of Mr Kitt.
10.Among the evidence before us is a copy of the death certificate, which sets out the cause or causes of death as cardio respiratory failure over days, lobar pneumonia over days and severe Parkinson’s disease with cachexia over months. As well, we have oral evidence from Mrs Kitt and the medical opinions of Dr Butler and Professor Breslin. Unfortunately, because the widow’s application was not lodged until 2003, we are informed that otherwise relevant records are now unavailable. However, s 119(1)(g) allows us to proceed taking into account “the effects of the passage of time including the effect of the passage of time on the availability of witness and (2) the absence of or a deficiency in relevant official records”.
11.The parties agree that, if the kind of death was just Parkinson’s disease, then Mrs Kitt’s case fails but, if Mr Kitt’s war-caused smoking brought about chronic bronchitis or emphysema and this was an integral part of his death or a ‘kind of death’, the claim would succeed. The medical opinions in this regard which have been presented to us are ambivalent. By contrast, the widow’s recollection of her late husband’s illness and death are vivid.
Medical Evidence – characterisation of “death”
12.There is no argument that the late veteran had a war-caused smoking habit. The respondent accepts that his 44-pack smoking history was a service related habit and see the findings of the Board at T11,54. As further noted by the Board, at T11,54, information provided by Dr Cooray, at folio 47 of material before it, ‘stated that Mr Kitt’s chronic airways disease was related to his smoking habit’. The Board also referred to a letter from Dr Cooray dated 13 March 1996 when it asked the Department of Veterans’ Affairs on 12 October 2004 to obtain a medical opinion. Unfortunately, Dr Cooray’s letter was not available to us. Mrs Kitt gave oral evidence that Dr Cooray had been attending Mr Kitt in Orange and had told her that emphysema had set in not long before Mr kitt died. She told us that Dr Cooray was his GP but had since left Orange. Mrs kitt also recalled her late husband having seen a Dr Milla, whom she described as an organic specialist. Mrs Kitt could not recall whether or not Mr Kitt received medication for chronic bronchitis.
13.She gave further evidence that Mr Kitt was wheezing the last few years of his life and that he couldn’t eat solid food in the end, for a few years before he died. He could only eat soup and custards. She said, if he ate anything solid at all, he nearly choked to death. She said: “You had to hit him on the back and that”. He lost almost 10 stone, went down to five stone and could hardly swallow at all.
14. The tribunal accepts the widow’s evidence that her late husband had a cough and produced excessive sputum over a period of years. We also accept her evidence that he had a wheeze and had difficulty swallowing. There is independent support for this in the medical records before us. His treating GP, Dr Raj Cooray, in 1996 wrote that he had ‘chronic airways disease’, according to a reference in the reasons for decision of the Veterans’ Review Board. Dr Simon R Hammond, a consultant neurologist, saw Mr Kitt several times between March 1990 and 28 July 1994 and regularly reported to Dr Cooray. In a letter to Dr Cooray dated 2 December 1993, he recorded that Mr Kitt had been having ‘much difficulty with swallowing sometimes, resulting in choking attacks’ and that he ‘sometimes had difficulty in swallowing both food and tablets’. At the end of his letter, Dr Hammond wrote that from the ’parkinsonian point of view’, Mr Kitt was functioning at a satisfactory level. He also noted moderate weight loss.
15.Dr Hammond wrote to Dr Cooray on 29 June 1994 as part of continuing review of the veteran’s condition. Dr Hammond noted that a Dr Milla had diagnosed emphysema. He also noted that Mr Kitt was having problems with early morning mobility. On 28 July 1994 Dr Hammond observed that Mr Kitt’s Parkinson’s disease was then quite well controlled as to mobility and did not suggest any change to his medication. Dr Hammond also noted that Mr Kitt had developed a chest infection requiring antibiotics and that this weakened his general condition. Dr Hammond did not feel his swallowing mechanism required further evaluation at this stage.
Professor Breslin
16.Professor Breslin, consultant thoracic physician, in his written report of 25 November 2004, observed that there was no evidence that Mr Kitt suffered chronic bronchitis. The professor explained that he had never seen Mr Kitt and could only refer to materials supplied to him. He set out that he had many letters in the file supplied particularly from Dr Simon Hammond. He found no comment about respiratory disease or medication for it. In this connection, we note that Dr Hammond was a neurologist who was treating Mr Kitt for Parkinson’s disease and also that Dr Hammond observed that Mr Kitt had a chest infection requiring antibiotics in his letter to Dr Cooray dated 28 July 1994. Professor Breslin also noted that Dr Cooray, in a letter dated 13 March 1996, referred to Mr Kitt’s suffering from ‘obstructive airways disease which was related to his smoking’ but that Dr Cooray did not mention symptoms or medication. He pointed out it would have been helpful to see Dr Cooray’s clinical notes but he did not have these. In the circumstances, Professor Breslin concluded that the available evidence suggested that Mr Kitt had died of Parkinson’s disease with complicating pneumonia which may have been aspirational in origin. The professor wrote that he had no doubt that Mr Kitt died of pneumonia but there was nothing in the materials supplied to him that this was related to smoking induced airways disease. He said that, as no comment was ever made in the papers before him about chronic cough and sputum, he considered he had no evidence on which to base a diagnosis of chronic bronchitis.
17.After Professor Breslin furnished this report, the Veteran’ Review Board sought a report from Dr John Milla. Dr Milla, consultant physician, on 24 May 2004 provided a report. Dr Milla detailed his knowledge of Mr Kitt’s medical problems. Dr Milla wrote that he had been seeing Mr Kitt since 1 January 1991 and that he had a problem of weight loss the cause of which was not clear. When he saw Mr Kitt in December 1993, Mr Kitt had been referred to him for ‘evaluation of difficulty with swallowing’. His weight at that time was 62.4 kilograms. When he last saw Mr Kitt in 1994, his weight had fallen further to 55 kilograms. Finally, Dr Milla stated that Mr Kitt ‘did have evidence of obstructive airway’s (sic) disease, undoubtedly related to smoking’. He added this was evident on the chest x-ray in 1994. He concluded Mr Kitt’s death may well be attributed to war service via the link to smoking and related airways disease.
18.Following a request from the Board, Professor Breslin was asked to comment on Dr Milla’s findings. On 18 July 2005, the professor noted that Dr Hammond had not included any medication for airways disease in the list he furnished. As well, he stated that the disease could not be diagnosed from an x-ray. Signs on an x-ray may suggest emphysema but clinical testing was required for accurate diagnosis. He suggested that Dr Milla’s references to ronchi and crepitations could be due to tracheobronchial aspiration. Although Dr Milla found evidence of obstructive airways disease, the professor said that he had seen no such evidence. The professor similarly discounted Dr Hammond’s opinion that Mr Kitt had emphysema because Dr Hammond had not detailed the evidence and it was difficult to diagnose from an x-ray. The professor stated he did not believe chronic obstructive airways disease contributed to Mr Kitt’s death which was quite classical death seen in Parkinson’s disease. The Board ultimately preferred the professor’s opinion to that of Dr Milla.
19.Professor Breslin responded orally to questions about whether he might change his opinion in light of the widow’s evidence. When told that Mrs Kitt said that his cough was aggravated or made worse when he lay down, and also his cough was aggravated or made worse by exercise, the professor responded to the effect that her evidence was consistent with a diagnosis of chronic bronchitis. Professor Breslin said:
… lying down is often the cause of an increase in cough and sputum in people with chronic bronchitis. Usually, when they first get into bed, they often do have that, and then they clear that up. You’ve got the sputum draining down the various bronchi, including the anterior bronchi when you lie down, and especially when you lie on your back or even when you lie on your side, it drains down one or the other one, so that’s consistent with chronic bronchitis, getting more coughing when he exerts himself. That’s consistent with the hyperventilation that would occur normally. We all do that – hyperventilate, that is, when we exercise or walk. That often produces a bit of phlegm .... I don’t think that helps to differentiate between anything else and chronic bronchitis. I think both of those symptoms are consistent with chronic bronchitis which it would appear, from the evidence given, that that’s what he had.
20.Nevertheless, Professor Breslin still stood by the opinion that Parkinson’s disease was the cause of death because by the time of his death, he had very advanced Parkinson’s disease. The professor noted that Mr Kitt was having difficulty swallowing as he heard ‘from this morning’s evidence’ and could only eat soft foods. All of this, he said, was very common in Parkinson’s disease. He added that the usual thing that carries them off in the end is a respiratory infection and that this was what pneumonia is. He conceded that people with chronic bronchitis are at higher risks of developing pneumonia. However, the professor was not convinced that it would have made a significant difference in Mr Kitt’s case. In his opinion, there was ample evidence that he was at the risk of dying of pneumonia, ‘namely his muscles were not working properly, his reserve would have been poor, his cough effectiveness would have been poor and his ability to swallow was obviously impaired’. In other words, Professor Breslin suggests that the pneumonia may have been related to difficulty swallowing.
21.Under questioning, the professor agreed that an ineffective cough meant that a sufferer would lose the ability to cough up that sputum, and that this was likely to have led to an increase in the secretions on his lungs because he wasn’t effectively able to cough it up. However, how long his cough was ineffective he did not know, of course, and that would be critical. He conceded that a build-up of secretions on Mr Kitt’s lung was likely to increase the likelihood of the onset of something like pneumonia.
22.Professor Breslin gave evidence that there was no effective treatment for chronic bronchitis but he, nevertheless, would have expected some evidence of treatment in Mr Kitt’s case if he had the condition. Respiratory infections were treated as they occurred. However, he agreed there was a paucity of medical records for Mr Kitt and said the medical records were certainly incomplete. He conceded it was possible that bronchitis, an increase and build-up of secretions on Mr Kitt’s lung and an ineffective cough, may have brought his death forward “by a day or two”. He gave further evidence that the most important thing of all was to stop smoking.
Dr Butler
23.Dr Butler, consultant physician, provided his report dated 18 September 2006 Dr Butler described himself in his report as a consultant general physician with a major interest in clinical cardiology. Under questioning, he agreed that he would defer to Professor Breslin with regard to respiratory medicine. Dr Butler said in his report, under “Discussion”:
I must agree with Professor Breslin that the evidence that Mr Kitt is suffering from chronic obstructive airways disease is minimal
24.Dr Butler further said in his report:
There is no evidence that chronic bronchitis was critical or made any significant difference to the outcome or accelerated it.
25.Doctor Butler confirmed he wasn’t able to find evidence of treatment because he didn’t have the treating doctor’s notes. There were no available notes to look at. In a later exchange, when Dr Butler was informed of Mrs Kitt’s oral evidence about her late husband’s symptoms, which was not available to him at the time of the report, the doctor modified his opinion. When asked whether, if Mr Kitt lost his ability to cough because of the Parkinson’s, the doctor said “I think that he would have more difficulty clearing secretions from his lungs than a normal person, yes”. Further, if that occurred and there was an increase in the secretions in his lungs, the doctor agreed that increased the potential for pneumonia to set in. As a result of the evidence presented by the widow, that Mr Kitt had chronic cough and sputum, Dr Butler said this suggests ‘bronchial irritation’.
26.When he wrote in the report that Mr Kitt had some evidence of “bronchial irritation”, Dr Butler explained he didn’t have enough evidence to actually say, at that time, that this met the diagnosis of chronic bronchitis, but he certainly, on at least two or three occasions, presented with evidence of bronchitis and there was also an earlier chest infection in 1994 before his death.
27.When he used the term “bronchial irritation”, he was not aware that the veteran did have a cough. After learning that Mrs Kitt told the tribunal that, almost the whole of their marriage, Mr Kitt coughed up sputum at least every morning and at other times when he exerted himself, when he got up from lying down et cetera, Dr Butler agreed that having that information made him more comfortably able to use the phrase “chronic bronchitis”.
28.Dr Butler wrote under “Discussion” in his report that it would be difficult to argue that Mr Kit’s smoking and bronchial irritation made no difference to the progress of his pulmonary problems. He noted that a chest infection began while Mr Kitt was in Orange base hospital several weeks before his death. Dr Butler hesitated to ascribe the pneumonia to swallowing difficulties because he noted that Dr Hammond felt it was not a problem. However, we note that Professor Breslin’s suggested the pneumonia before death may have been related to difficulty swallowing, and the widow gave clear evidence that Mr Kitt did have difficulty during the years before his death. We further note that Dr Milla points out in his report of 24 May 2005 that Mr Kitt was referred to him for evaluation of difficulty with swallowing in 1993. Dr Hammond at one stage did believe that Mr Kitt had no difficulty with swallowing but on 2 December 1993 wrote that it “transpired that he had been having difficulty with swallowing, sometimes resulting in choking attacks”.
Smoking Habit
29.Material before us indicates that Mr Kitt was a heavy smoker as a result of his army service. Mrs Kitt told us her husband was a heavy smoker from the time she met him soon after he returned from the war until shortly before he died. She further told us that Mr Kitt informed her that he took up smoking during his active service and we have no reason to doubt this. The passage of time prevents any further investigation other than the information from his widow and his treating doctor. The respondent accepts Mr Kitt’s smoking habit was war-caused and we think this is appropriate. The further question is whether Mr Kitt’s war-caused smoking habit resulted in chronic bronchitis.
Chronic bronchitis
30.Mrs Kitt told us her husband had a bad cough for many years and coughed up sputum a few times a day. Dr John Milla diagnosed emphysema in 1993. While Professor Breslin was critical of dependence on x-ray for diagnosis of this condition, neither Dr Cooray nor Dr Milla were available for questioning and it is more than likely in our view that the history of symptoms Mrs Kitt has described were also considered by Dr Milla in diagnosing emphysema. Dr Breslin conceded in oral evidence it was possible that bronchitis, an increase and build-up of secretions on Mr Kitt’s lung and an ineffective cough, may have brought his death forward. In addition, he emphasised that the most important thing of all was to stop smoking. Mrs Kitt’s evidence was that Mr Kitt continued to smoke until shortly before his death.
31.Dr Butler confirmed that when he used the term “bronchial irritation”, he was not aware that the veteran did have a cough. However, he was more comfortable about using the phrase “chronic bronchitis” to describe Mr Kitt’s condition once he was made aware of the history given by the widow. Dr Butler gave oral evidence that, if Mr Kitt suffered from chronic bronchitis, such that he produced excessive mucus sufficient to cause cough and sputum, which due to the debilitating effects of the Parkinson’s disease ultimately reduce his ability to cough. Dr Butler thought Mr Kitt would have more difficulty clearing secretions from his lungs than a normal person. The increase in the secretions in his lungs increased the potential for pneumonia to set in.
32.On balance, we consider that the evidence before us is that Mr Kitt did suffer from chronic bronchitis from at least 1994 at the time he was seen by Dr Milla and Dr Milla concluded, according to the reasons for decision of the VRB on 23 February 2006, that Mr Kitt did have evidence of obstructive airways disease “undoubtedly related to smoking”. Further, we note Dr Hammond on 29 June 1994 reported that Mr Kitt had emphysema. Mr Kitt’s symptoms continued from that time until his death. This is plain from his widow’s evidence. Dr Butler thought the chronic bronchitis would hasten his death. Professor Breslin says that he saw no evidence of chronic bronchitis and it could not be diagnosed from x-ray. However, he conceded that if the widow’s evidence was that her husband had a bad cough for years, which made him cough up sputum and was particularly bad in the mornings, this ‘implies chronic bronchitis, also referred to in lay terms as “smoker’s cough”.’ The professor noted that chronic bronchitis means, and is seen in the statement of principles to mean coughing sputum for most days for more than 3 months*****. The professor observed that no comment about that was ever made in the background notes that he had.
33.Professor Breslin stated his opinion to the effect that, if the widow’s evidence was correct, then the veteran would meet the statement of principals for the condition of chronic bronchitis. We have already stated that we accept the widow’s evidence as truthful. Accordingly, while we accept Professor Breslin’s opinion that Mr Kitt would soon have died from the effects of Parkinson’s disease even if he did not have chronic bronchitis, we find that chronic bronchitis was part of the death suffered by Mr Kitt.
What is the kind or kinds of death?
34.The kind of death of a veteran and whether it was war-caused is a matter to which the provisions of subs 120(1), 120(3) and s 120A of the Act apply. On the balance of probabilities, we find the “kind” or “kinds” of death suffered by Mr Kitt included cardio respiratory failure and pneumonia, which were attributable to chronic bronchitis exacerbated by Parkinson’s disease, which paralysed Mr Kitt’s throat and rendered his cough ineffective, thereby leading to pneumonia. The death certificate attributes Mr Kitt’s death to respiratory failure and pneumonia experienced over days as well as Parkinson’s disease over months. There is no onus of proving any matter on either party (s 120(6)) of the Act. In our opinion, the "kind of death" in this case is pneumonia. The terminal events resulted from a combination of Parkinson’s disease and chronic bronchitis rendering an ineffectual cough which resulted in a build-up of secretions leading to pneumonia with subsequent cardio respiratory failure.
Hypothesis
35.Given our finding as to the kind of death, it is necessary next to follow the analysis set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (at 97-8):
"...the decision maker is, first, to consider all the material before it and determine, without making any findings of fact, whether that material points to a hypothesis connecting the death with service rendered by the person, second, whether there is an applicable Statement of Principles in force, third, whether the hypothesis is consistent with any such Statement of Principle, and fourth, only then make findings of fact from the material before it as to whether it is satisfied beyond reasonable doubt that the death was not connected with service."
36.The material before us raised the following hypothesis relating to Norman Kitt’s death:
(a)Mr Kitt developed emphysema or chronic bronchitis because:
(i)He smoked heavily during his war service until about 1994, shortly before his death; and
(b)He died as a result of his respiratory disease, which was war-caused, as well as a result of his Parkinson’s disease;
(c)Consequently, his death was war-caused.
37.There are in force Statements of Principles (SoP) covering emphysema and chronic bronchitis (No 30 of 2004) as well as Parkinson’s disease (No 36 of 2002). Factor 5 and certain of the definitions in SoP no 30 of 2004 are particularly relevant in this case as the hypothesis concerns chronic bronchitis. We have set out extracts from SoP no 30 of 2004 below:
Kind of injury, disease or death
2. (a) …
(b) For the purposes of this Statement of Principles,
(i) “chronic bronchitis” means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum for at least three months of each year for at least two consecutive years, where such mucus production is not attributable to another respiratory disease.
Factors
5. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and emphysema or death from chronic bronchitis and emphysema with the circumstances of a person’s relevant service is:
….
(a)smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; …
….
Other definitions
8.For the purposes of this Statement of Principles:
“death from chronic bronchitis and/or emphysema” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s chronic bronchitis and/or emphysema; …
“terminal event” means the proximate or ultimate cause of death and includes:
(a) pneumonia;
(b) respiratory failure;
…
Is a reasonable hypothesis raised on the material before the Tribunal?
38.Taking into account the whole of the material before us, as suggested appropriate in Bushell v Repatriation Commission (1992) 175 CLR 408 at p 415, we consider it raises a reasonable hypothesis connecting the circumstances of Mr Kitts’s service with his smoking. The hypothesis is that he began smoking while on service because tobacco was made available by the army, and to alleviate the stress of active service. The respondent concedes that Mr Kitt’s smoking habit was war-caused. The next step is to connect the smoking habit to the development of chronic bronchitis or emphysema in order for this condition to be found as war-caused. The material before us suggests each element of the hypothesis is met. It is not necessary for this step that the hypothesis be proved.
39.The criteria in the Statement of Principles concerning chronic bronchitis and emphysema set out, in part above, must be met before the hypothesis is “reasonable”. Among the main factors, the phrase ‘death from chronic bronchitis and/or emphysema’ is defined to include “death from a terminal event or condition that was contributed to by the person’s bronchitis and/or emphysema”. As well, ‘terminal event’ is defined to mean the proximate or ultimate cause of death so as to include pneumonia and respiratory failure. As we noted in discussion of the kind of death, we consider that Mr Kitt died of pneumonia and cardio respiratory failure.
40.Therefore, we have examined whether the hypothesis that Mr Kitt died as a result of war-caused bronchitis and/or emphysema. Is consistent with SoP 30 of 2004. The hypothesis is supported by oral evidence from Mrs Kitt. We find that Mr Kitt had a war-caused smoking habit in excess of that required to satisfy factor 5 (a) of SoP 30 of 2004, that is, smoking at least 5 pack years of cigarettes or the equivalent before the clinical onset of chronic bronchitis or emphysema. Mr Kit was diagnosed with this condition in 1993 and the widow’s evidence supports the conclusion that this diagnosis was correct. This has the consequence that we are satisfied that he suffered from chronic bronchitis or emphysema.
41.The medical opinions of Dr Butler and Professor Breslin in this regard are cautious. However, we have already decided that Mr Kitt suffered from one or both of these conditions in connection with the kind of death discussion above. The evidence from Mrs Kitt taken with that of Dr Breslin leads to a reasonable hypothesis connecting the death to chronic bronchitis and emphysema which arose from the veteran’s operational service.
42.We find on the basis of the medical opinions before us and the evidence of Mr Kitt’s symptoms before his death taken from his widow that the evidence is consistent with Mr Kitt having suffered from chronic bronchitis which led to a terminal event. There is little doubt that the ‘terminal event’ was as required under the definition in the SoP. The certificate of death described causes of death as pneumonia and cardio respiratory failure. Both doctors who gave evidence before us explained that these conditions would ultimately develop as a result of Parkinson’s disease with or without chronic bronchitis already being present. As to whether the death resulted from chronic bronchitis and/or emphysema or the terminal event or condition was contributed to by those conditions, we are satisfied on the balance of probabilities that Mr Kitt’s decease did come about as a result of chronic bronchitis the effect of which was exacerbated by the impact of Parkinson’s disease. Medical evidence before us is that Parkinson’s disease paralyses the lungs and causes a chronic bronchitis sufferer to develop an ineffective cough. This means we are satisfied that we are satisfied the hypothesis put to us is reasonable.
43.We consider the hypothesis in this case is not fanciful or remote or untenable. It is a reasonable hypothesis on all the material pursuant to subs 120(3) of the Act. That being so, it follows that the late veteran’s death is war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. We consider that no fact that is essential to the hypothesis is disproved beyond reasonable doubt. Applying the same standard, we consider no fact contrary to the hypothesis is proved. It follows, therefore, that the late veteran’s death was war-caused according to subs 120(1) and subs 8(1) of the Act.
44.The fourth step of Deledio requires us to make findings of fact from the material before us, bearing in mind that the claim will succeed unless we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death war-caused as provided by s 120(1). We are not satisfied beyond reasonable doubt that the death of Norman Kitt was not war-caused.
45.As to actual cause of death according to the evidence before us, over and above the hypothesis, we conclude that Mr Kitt’s did in fact suffer from war-caused chronic bronchitis and emphysema. The hypothesis has not been disproved beyond reasonable doubt. The only “raised fact” inconsistent with the hypothesis is that Parkinson’s disease alone caused Mr Kitt’s death. This contention has not been proved beyond reasonable doubt in our opinion. The evidence of Mrs Kitt and the background medical history referred to above makes proof to this standard untenable. Consequently, we find, on the balance of probabilities, that the death of Norman Kitt on 9 August 1994 was war-caused.
46.From this flows an entitlement to the widow’s pension with effect from 23 March 2003 for Mavis Kitt. In Byrnes at [571], Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.”
47.It follows that Mrs Kitt’s claim is justified. We find the decision under review is not the correct decision.
DECISION
48.The tribunal sets aside the decision under review and in substitution decides that the death of the late veteran, Norman Henry Kitt, on 9 August 1994, was ‘war-caused’ within the meaning of that term in the Veterans’ Entitlements Act 1986 (the Act), and that Mavis Melena Kitt is entitled to a widow’s pension pursuant to the provisions of that Act, with effect from 23 March 2003.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt.
Signed:
[Talaishia Collis]
.......................................................................
Associate
Date of Hearing 9 March 2007
Date of Decision 23 April 2007
Counsel for the Applicant Mr N DawsonSolicitor for the Applicant Legal Aid Commission of New South Wales
Representative for the Respondent Department of Veterans’ Affairs, Advocacy Section
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