Lecole and Repatriation Commission
[2004] AATA 997
•24 September 2004
|
DECISION AND REASONS FOR DECISION [2004] AATA 997
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/994
| VETERANS' APPEALS DIVISION | ) | ||
| Re | DAPHNE LECOLE | ||
Applicant
| And | REPATRIATION COMMISSION |
Respondent
DECISION
| Tribunal | Dr EK Christie, Member |
Date24 September 2004
PlaceBrisbane
| Decision | The Tribunal directs that: (a) the respondent arrange for a posthumous psychiatric evaluation of the kind of injury that the late Mr Lecole may have suffered in the immediate post-war service period as well as in the later part of the post-war period. The standard of proof in this regard to be the “reasonable satisfaction” standard in subsection 120(4); and (b) the matter be relisted for a resumed hearing on a date to be fixed. ……………[Sgd]……… |
CATCHWORDS
VETERANS' AFFAIRS – benefits and entitlements - war widow's pension - colorectal cancer - alcohol threshold - assumed fact reasonably open to be inferred from, pointed to, raised by and so permitted by the material - reasonable hypothesis raised by assumed or raised fact - satisfaction of Statement of Principles - war-caused death
Veterans’ Entitlements Act 1986 ss 120(1), 120(3)
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212
East v Repatriation Commission (1987) 74 ALR 518
Horne v Repatriation Commission (1996) 24 AAR 127
Critch v Repatriation Commission (1996) 43 ALD 574
Stares v Repatriation Commission (1996) 66 FCR 594
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commission v Whetton (1991) 24 ALD 690
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Jackman v Repatriation Commission [1997] FCA 564
Repatriation Commission v Williams [2001] FCA 1195
Borrett v Repatriation Commission [2000] FCA 1829
Re Borrett and Repatriation Commission [2000] AATA 481
McLean v Repatriation Commission [2001] FCA 1505
REASONS FOR DECISION
| 24 September 2004 | Dr EK Christie, Member |
This is an application by Daphne Lecole to review a decision of the Veterans’ Review Board (“the VRB”) made on 1 September 2003. The VRB decided that the death of her late husband, Celestin Joseph Lecole, was not war-caused.
In reaching its decision, the VRB concluded, on the evidence before it, that:
“13. While the Board accepts the correctness of the contention by Mr Clarke that aspects of service in Moratai were stressful for Australian personnel serving there, there is no evidence to link the veteran with any particular such incidents. Further, even if it were the case that the veteran’s alcohol consumption were related more than temporally with his service, there is no evidence before the Board which would suggest a causal association with service and the continued consumption for more than forty years after service was completed. For example, there is no evidence of a psychiatric condition which would trigger that response.” (T5, Folio 40)
At the hearing, Daphne Lecole was represented by Mr PB O’Neill of Counsel instructed by Files, Stibbe & Associates. The Repatriation Commission was represented by Mr M Smith, a Departmental Advocate.
At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
The general facts were not in dispute and may be stated briefly. The late veteran rendered eligible service (operational service) with the Royal Australian Air Force from 28 October 1941 until 18 January 1946. The late veteran’s service included operational service in Moratai and Borneo.
Mr Lecole passed away on 25 May 1997. The cause of death, as certified on the Death Certificate, was (a) metastatic carcinoma of the rectum and (b) carcinoma of the rectum (T4, Folio 27). The cause of death was not in dispute.
The late veteran’s accepted and rejected disabilities were:
(a) Service-Related Disabilities – Nil
(b) Eligible for Treatment (Not Service-Related) – Metastatic Disease(c) Non-Service-Related Disabilities – Death
Issues To Be Decided
The primary issue for the Tribunal to decide was whether the late Mr Lecole’s death, through carcinoma of the rectum, was caused as a direct result of operational service; and, in turn, whether his alcohol consumption was war-service-related. It was not in dispute that the clinical onset of the cancer was in 1992.
Daphne Lecole (the late veteran’s widow), her children Kerry Bliesner, Kim Lecole and Mark Lecole, as well as two colleagues of the late veteran (Max Collins and Byron Lewis) gave evidence on behalf of the applicant. The respondent called no witnesses. Neither party called for any expert medical evidence at the hearing.
Examination of the Factual Evidence
The Tribunal has considered the oral evidence of the lay witnesses in terms of the late veteran’s alcohol consumption and war-time accounts of any “traumatic” events experienced.
Evidence of Daphne Lecole
Mrs Lecole said that she had met her late husband in mid-1946, after he had been discharged from the RAAF. In the early years of their marriage he had spoken a lot about his service in the Pacific Islands and Borneo and had described some of the events he had experienced. However, her husband became upset when talking about these events. She said that her husband always had problems with “nerves” which led to medical problems (such as digestive problems and diarrhoea) and the need for frequent treatment at the Darwin Hospital; they had lived in Darwin after their marriage.
Mrs Lecole stated that her husband did not drink prior to enlistment but drank during their courtship and marriage and drank “a lot” after war service. She said that her husband had told her about alcohol rations during his war service and that he had “always drunk rations and could easily get more from the Americans”. He had also told her that they had made their own alcohol.
Mrs Lecole said that her husband had described distressing situations he had experienced to her, for example, seeing dead and decayed bodies on a beach. He had said to her that he had a need to drink to deal with the stress associated with the difficulties and anxiousness of living in a war zone.
Mrs Lecole gave the following summary of her late husband’s drinking patterns over time:
(a)Darwin (the first 8 years after marriage) – Drank mostly every day and at times drank heavily. He drank a minimum of 1 “tallie” [750 ml] a day.
(b)Townsville (the next 1½ years) – Only drank after work; the pattern was the same as in Darwin.
(c)Brisbane/Burpengary – Drank about 1 or more bottles a day “just about every day” and “more or less got into a habit”. He did not drink much following the diagnosis of his cancer. During this period he played golf every fortnight and drank after the game; he also went to the Redcliffe RSL every week and drank there with friends. Mrs Lecole said that her late husband retired at the age of 60 [1983]. She was unsure when he commenced playing golf.
Evidence of Kerry Bliesner
Whilst living at home until 1974, she said that for as long as she could remember, her late father drank at least one bottle of beer every day. After this time she would visit her parents each weekend and said that her father drank 1-2 “tallies” on each occasion.
She said that her father did not ever talk about his war service to her. She had seen the photos of decomposed bodies on the beach and remembered her father describing it as a “horrible photo”.
Evidence of Kim Lecole
Mr Lecole said that his late father had never discussed his war experiences or events with him. In response to a Tribunal question, he said that his father never attended Anzac Day services and never took his son along to Anzac services as he was growing up.
Mr Lecole’s recollections of his father’s drinking habits were based on the period up to 1994, that is, the year he left home. He said that there was always beer in the house, that his father drank most days and drank at least 2-3 glasses of beer a day. Her father also drank a round of beer (2-3 glasses) at the end of a round of playing golf. He said that his father also made his own home brew.
Evidence of Mark Lecole
Mr Lecole said that his father hardly spoke about his war service. Occasionally, he spoke about the convoys and the body parts that used to wash up on the beach.
He stated that he left his parents’ home around 1985. After this time he would see his family every 1-2 weeks. His recollections of his father’s drinking habits were that he had a beer every afternoon, that he would drink at least one bottle of his “home brew” each day and that he would drink a round of 2-3 pots at the end of playing golf.
Evidence of Max Collins
Mr Collins had known the late veteran for about 30 years. He played golf with him about every two weeks. They would have a round of drinks (2-4 beers) after each game. They also drank at the RSL Club at Bribie Island. They had also played pool together and the late Mr Lecole would drink 2-3 stubbies.
Evidence of Byron Lewis
Mr Lewis had known the late veteran for about 20 years. They had played golf regularly, practically every Saturday, for about 7 years over the period 1989-1991. They would have a round of 3 drinks at the end of each round.
Mr Lewis could not recall the late veteran ever talking about his war service.
Contentions and Submissions of the Parties
Mr O’Neill submitted that the late Mr Lecole’s cancer was caused and was a direct result of his alcohol consumption – which in turn, was war-service-related.
It was Mr O’Neill’s contention that the late Mr Lecole consumed at least one 750 ml bottle of “heavy beer” each day, and more on weekends and on social occasions. It was Mr O’Neill’s further contention that the consumption of one 750 ml bottle a day, over a 25 year period, would meet the threshold of 250 kg of alcohol. Furthermore, when this estimate was corrected for additional amounts drunk socially (golf, RSL, family occasions), the 250 kg alcohol threshold would be exceeded.
Mr O’Neill submitted that the late Mr Lecole’s drinking habits arose solely as a result of his war service because of the following reasons:
§Mr Lecole did not drink prior to his war service commencing, but at the war’s conclusion was drinking on a regular daily basis;
§Mr Lecole’s drinking arose during his war service;
§Mr Lecole spent over four years in eligible service;
§Alcohol was made available to Mr Lecole throughout his war service;
§Mr Lecole was stationed in Moratai during his war service; and
§Mr Lecole told his wife that his drinking was due to his war service.
Furthermore, Mr O’Neill submitted that the late Mr Lecole experienced a number of distressing situations during his eligible service which caused or contributed to his drinking habit, including:
§seeing the bodies of war victims washed up on the beach;
§constantly being on alert and concerned about air strikes;
§always being on edge and frightened for his own safety; and
§as a driver in the convoys.
Based on these submissions, Mr O’Neill concluded that:
(a)the factual evidence supports a reasonable hypothesis that the cause of death was service-related;
(b)the respondent had not produced or referred to any evidence to rebut the reasonable hypothesis; and
(c)the Tribunal could not be satisfied beyond a reasonable doubt that the late Mr Lecole’s drinking was not materially caused or contributed to by his operational service with the RAAF in World War II.
Mr Smith submitted that a mere temporal connection between operational service and the commencement of an alcohol habit as being sufficient to establish a causal connection could not be sustained in the absence of any evidence on alcohol abuse or dependence. In Mr Lecole’s case, there was no evidence that he suffered from alcohol abuse or dependence. Mr Smith contended that his drinking was discretionary. Furthermore, as the connection to service was temporal rather than causative, no connection could be made with Mr Lecole’s drinking habit in the 40 years prior to the onset of cancer.
Mr Smith submitted that it would be extremely perverse if Mr Lecole’s discretionary drinking could be linked to service in the absence of an alcohol abuse or dependence condition. In the case of alcohol abuse or dependence, the Statements of Principles required evidence relating to a “severe stressor” and a “psychiatric condition” over some timeframe – factors which were not considered with respect to a “discretionary drinking” pattern.
Mr Smith submitted that it was “highly questionable” whether the “second hand account” of Mr Lecole’s experiences in the Pacific Islands, given that he was RAAF ground crew, would amount to representing a “severe stressor”.
It was Mr Smith’s contention that a connection between Mr Lecole’s operational service and the continuance of his drinking habit, post-service, and in particular the amount of alcohol consumed in 25 of the 40 years prior to the onset of his cancer, could not be established.
Mr Smith submitted that over the post-service period, Mr Lecole’s drinking habits were discretionary as it was his personal decision whether to vary his drinking habits. All of the circumstances that may have induced him to commence drinking during operational service no longer applied and so represented entirely new intervening factors.
Mr Smith concluded with the submission that the evidence did not support any connection between the amount of alcohol drank during operational service and his alcohol consumption in the 40 year period thereafter.
Mr Smith qualified his conclusion that drinking could never be related to service in the absence of alcohol dependence or abuse – but that this would apply in only fairly limited circumstances, for example, evidence that the veteran suffered from some form of psychiatric disorder arising from war service or drinking to deaden the memories of stressful war-service experienced.
Legal Framework
Section 120(1) of the Veterans’ Entitlement Act 1986 (“the Act”) provides that, where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran:
“the Commission shall determine … that the injury, disease or death of the veteran was war caused …unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
Section 120(3) of the Act provides that in applying subsection (1):
“the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining … that the injury, disease or death was war-caused …if the Commission, after consideration of the whole of the material before it des not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person.”
Following the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four stages as follows:
“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
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 then 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.” (emphasis added).
A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
The plain meaning of “hypothesis” was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
“A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption.”
In Horne v Repatriation Commission(1996) 24 AAR 127, Hill J decided that assumptions were permissible and that facts may be inferred. Support for this proposition was to be found by the decisions of Critch v Repatriation Commission(1996) 43 ALD 574 at 579 and 583 and Stares v Repatriation Commission (1996) 66 FCR 594.
In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-570, Mason CJ, Gaudron and McHugh JJ said:
“An assumed fact cannot arise in the abstract. Obviously it is a fact that is reasonably open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis. Using these criteria ensures that the assumed fact is ‘raised’ by the material and can be relied upon as a relevant matter and therefore a ‘raised fact’ in forming an opinion as to the reasonableness of the hypothesis.”
Furthermore, their Honours stated:
“The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.”
In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges concluded:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”
In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is:
“obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”
and:
“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 supports the hypothesis and if the hypothesis can be regarded as reasonable if the facts are true.”
Furthermore, the High Court in Bushell said (at 415):
“As we have pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its function’s under s. 120(3) the Commission cannot have regard to the medical or scientific materials which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.”
In Connors v Repatriation Commission[2000] FCA 783 at para. 14, Kenny J rejected a submission made by Counsel that “no individual part or parts of the hypothesis need be supported by facts raised in or by evidence”. Her Honour decided:
“If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker, then the hypothesis is not raised by that material. If the material did raise the hypothesis, the decision maker must determine whether it is reasonable. It would not be reasonable if the hypothesis did not fit the relevant SoP. That is, the facts of the applicant’s service must satisfy the standards set out in the SoP. ”
As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, said:
“The position may be summarised as follows:
(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran’s service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2)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, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
Earlier, in Repatriation Commission v Whetton (1991) 24 ALD 690, the Full Federal Court held:
“(vi)The legal principle that the Tribunal had the ultimate question of deciding the standing of the hypothesis raised and should not be deflected from that task by the opinion of experts did not mean that the Tribunal was excused from understanding and making findings upon expert evidence relevant to the question it had to decide. It meant rather that the Tribunal must not abdicate its own function.
(vi)… the correct approach (s 120) was that a finding must be made in favour of an applicant unless the applicant’s case could be rejected beyond reasonable doubt or that the material before the Tribunal did not raise a reasonable hypothesis as required under the statute.” [emphasis added]
In Repatriation Commission v Hancock [2003] FCA 711, Selway J identified a further problem involving necessarily at least two extra steps before step one of the “Deledio methodology”:
“The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation, on balance of probabilities. In this case those pre-conditions were that [the applicant’s spouse] was a veteran, that the respondent was his widow and that [the veteran] had died. Secondly, in order to ascertain whether a SoP applies it is necessary to identify the ‘kind of injury' or the ‘kind of death' suffered by the veteran: see s 120A(2) and (4) of the Act. With most injuries and probably even most diseases this will usually be obvious enough (which is probably why the step was not mentioned in Deledio). But in cases such as the present, the identification of the ‘kind of death' is the critical step in the analysis. In determining the ‘kind of death', proof is on balance of probabilities.”
In relation to the standard of proof in this regard, in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, the Court held:
“The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s 120(4) and not the reasonable hypothesis standard in s 120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war caused. All other matters were to be dealt with the reasonable satisfaction standard in s 120 (4).” [Emphasis added]
The requirements for proof in accordance with the standard in subsection 120(4) - the reasonable satisfaction of the Tribunal - have been considered in a number of cases. As Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction… Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’.”
Consideration of the Issues
The Tribunal has taken into account all of the oral and documentary evidence, the legislation and case law in exerting its decision-making powers. Furthermore, the Tribunal has adopted the sequential stages in Deledio’s case in resolving the factual issues in dispute.
Stage I: Whether the Material before the Tribunal points to an Hypothesis that connects the Death of the Veteran with the Circumstances of Services
Based on the oral and documentary evidence before the Tribunal, the general hypothesis that can be constructed is the late veteran had a drinking habit arising out of his war service which contributed to his rectal cancer; that the late veteran drank regularly in the post-service period in order to relax and in order to deal with stressful situations encountered during operational service.
Applying the principles in East, Stares, Horne and Byrnes, the Tribunal concludes that the essential elements of the hypothesis are pointed to by the material before the Tribunal and so raises an hypothesis connecting the death of Mr Lecole with the circumstances of service. The Tribunal recognises the hypothesis to be “a supposition made as a starting point for further investigation from known facts and no more than a conjectural explanation of an ultimate fact”.
Stage II: Whether a Statement of Principles is in Force
The following Statements of Principles (“SoP”) is applicable: Malignant Neoplasm of the Colorectum (Instrument No 1 of 2004). However, the SoP applicable at the date of the original decision was No 58 of 2002. In practice, there is no difference between the SoPs in the factor contended by the applicant.
Stage III: Whether the Hypothesis is a Reasonable One
In relation to the hypothesis identified in paragraph 54, and pursuant to subsection 120(3) of the Act, the following factors are contained within the SoP and are consistent with the template or factor:
“Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colorectum or death from malignant neoplasm of the colorectum with the circumstances of a person’s relevant service are:
…
(c)drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum; …”
The hypothesis relied upon is that the late veteran commenced drinking during the war. Inferentially, that this was brought about by the circumstances of his operational service and that this drinking pattern continued in the post-war period and ultimately leading to his death through colorectal cancer.
A difficulty that arises in this application for review in the materials before the Tribunal, is to raise facts that point to a connection between the late veteran’s war service and the continuation of alcohol consumption in the post-operational service period. The outcome, in these circumstances, turns on the sufficiency of materials to establish the requisite connection: Critch v Repatriation Commission (1996) 43 ALD 574.
That is, the question subsection 120(3) requires to be asked is whether all, or some, of the facts raised by the material before the decision-maker gives rise to a reasonable hypothesis connecting the veteran’s disease with war service: see Byrnes’ case at 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question: see Critch’s case.
Accordingly, the assumed fact in this application for review – the inference that the late Mr Lecole’s alcohol consumption was war-caused - must be considered in the light of all of the other material, and not raised by the assumed fact in isolation. Much of the other material bears directly upon the hypothesis. The material before the Tribunal points to the fact that the late veteran did not drink before his war service, that he drank during war service, and that he was drinking when he returned after the war, following his discharge from the Army. Furthermore, on return from the war he drank because of his nerves. Other material plainly points to the fact that he continued to consume alcohol over a very long period of time following operational service.
The important issue is whether the assumed fact – the inference between the circumstances of the late veteran’s service leading to the continuation of consuming alcohol in the post-war period, is raised by the material, rather than in the abstract: see Critch’s case.
Furthermore, it may be that it is the assumed fact which makes the hypothesis reasonable. By applying the reasoning and criteria contained in the “Legal Framework”, the Tribunal concludes that the facts that may properly be assumed to support an inference, are raised by the following material. This material relates the circumstances of the late veteran’s service to his drinking patterns:
(a)that the late veteran did not drink prior to enlistment (Mrs Lecole’s evidence);
(b)that the late veteran experienced distressing events while on operational service (see paras 11, 13, 16 and 19);
(c)that he had continued to drink post-war because of his nerves and that his drinking pattern was associated with exposure to stressful situations during operational service (paras 11 and 13); and
(d)that he never spoke about the war to his family and friends (paras 16, 17, 19 and 23).
Accordingly, based on the evaluation of all the material, including assumed facts, the Tribunal concludes that there is an hypothesis that points to a connection, which starts with a disease (colon cancer), in respect for which the application is made, and ends with the service. That connection comprises a number of links: operational service, assumed facts relating to exposure to stressors during operational service and the subsequent impacts on the drinking pattern of the late veteran, the existence of a drinking pattern following operational service because of “nerves” and the subsequent death of the late veteran because of colon-rectal cancer. Applying Byrnes and Connors, the Tribunal finds the hypothesis to be reasonable.
Furthermore, the Tribunal finds this hypothesis to be reasonable because, pursuant to subsection 120(3) of the Act, Factor 5(c) of SoP Instrument No 1 of 2004 (Malignant Neoplasm of the Colorectum) is contained within the SoP and is consistent with the template or factor.
Stage IV – Whether the Factual Evidence before the Tribunal Discharges the Legal Standard of Proof
With respect to the threshold quantity of alcohol as imposed by Factor 5(c), the Tribunal notes that the relevant phrase in the SoP refers to “…alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum”.
Applying the reasoning in Repatriation Commission v Williams [2001] FCA 1195, it would be legitimate for the Tribunal to search over the whole of the late veteran’s drinking life to the fixed time (that is, the date of clinical onset of symptoms), as the SoP does not specify a defined period of time which must end at the fixed time. It is not in dispute that the fixed time in the late veteran’s case is 1992, the date of the clinical onset of symptoms for his malignant neoplasm of the colorectum.
Accordingly, the Tribunal finds that the factual evidence before the Tribunal is consistent and indicates that the late veteran consumed at least one large bottle of heavy beer per day within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum.
Based on documentary materials provided by the Tribunal to the parties from the web pages of the brewers, Castlemaine Perkins and Fosters (and which the parties accepted), that a 750 ml bottle of their product was equivalent to 2.8 standard drinks [or 28 g alcohol], the late veteran, accordingly, would have consumed 255 kg of alcohol over the prescribed period. Allowing for drinking additional to this amount (whilst at golf and social functions with family), the Tribunal finds that the statutory threshold of 250 kg of alcohol is exceeded. That is, there is nothing in the material for the purposes of subsection 120(1) that disproves beyond reasonable doubt that the late veteran did not consume the equivalent of 250 kg of alcohol within a 25 year period within the 40 years immediately before the clinical onset of symptoms in 1992.
The difficulty for the applicant’s case is establishing, at the requisite level of proof under subsection 120(1), the connection between operational service and the continuation of the late veteran’s drinking patterns in the post-service period. For example, there is no factual evidence to support the applicant with respect to the existence of some defined psychiatric condition in the late veteran. In this regard, the Tribunal agrees with the limitations raised by Mr Smith’s concluding submissions, in terms of the available medical evidence before the Tribunal.
However, the Tribunal is aware of the beneficial nature of the legislation and has considered the application for review in terms of a “similar fact” case: Borrett v Repatriation Commission [2000] FCA 1829 (15 December 2000).
The following materials in the judgment of Tamberlin J in Borrett are relevant to the consideration of the outcome of this application:
“14. There was evidence before the AAT, given by the applicant, that from about six months after returning home the veteran would drink three to six schooners of beer every day after work, and that he also drank beer after golf on Sundays, but he did not drink at home. In a document dated 21 August 1992 the applicant stated that the veteran drank three to four beers per day, with the odd glass of wine, and at a later stage during 1998 she stated that the veteran drank with a group after work every day consuming three to six drinks, usually schooners. It is not in dispute that a standard drink (seven ounces) contains ten grams of alcohol, whereas a schooner (fifteen ounces) contains twenty grams of alcohol. The AAT accepted that even if the veteran drank at the lower range evidenced by the applicant he would easily satisfy the requirements of the SoP.
15. The AAT next considered that apart from his work there did not appear to have been any pressure on the veteran to drink, and that his post service drinking took place in the context of his work as a salesman and later as a small business proprietor entertaining, or maintaining goodwill with customers. It says that the evidence was that he never drank to excess and that he did not drink at home. Some reference is made to the opinion of Associate Professor Mattick who gave evidence for the Commission to the effect that he did not believe that the term “alcohol habit” was appropriate in this case. It was not a term that the Professor said featured in any classification system and although the veteran may have drunk regularly there was no evidence in the view of the Professor that his drinking behaviour was habitually driven by any service related events. This opinion was accepted, although it was noted that the Professor took the view that the veteran did drink sufficient alcohol to satisfy the requirements of the SoP.
…
18. The evidence of Dr Gertler, a psychiatrist called by the applicant, was that the veteran became anxious as a result of his war time experiences and that anxiety may well have become chronic and alcohol served as a form of self medication. The AAT did not accept these reasons and stated there was simply no evidence for the statement by Dr Gertler that the veteran drank daily whilst in Canada [air crew training].” [Emphasis added]
Essentially, the reasoning of the Tribunal is set out in the following paragraphs (in Re Borrett and Repatriation Commission [2000] AATA 481):
“30. It has been suggested that the disappointment in failing his flying course so affected the Deceased that he suffered a personality change and became anxious and lost self confidence and so self medicated with alcohol. To us this hypothesis is based upon no more than suspicion and conjecture and has no basis in fact. The hypothesis that the Applicant's post service drinking was causally related to his service is unsupported by any facts and hence cannot be classified as reasonable.
31. Even if the hypothesis referred to above was raised, we are satisfied beyond reasonable doubt, based on the Applicant's own evidence, that the Deceased only began to drink to any extent after he found employment as a salesman and that he continued to drink both as a means of relaxation and as an aid to maintaining goodwill with customers. This continued when he had his own business. At no time was his partaking of alcohol a habit, for example he did not drink at home, but his drinking was a social lubricant and not in any way connected with his service. Thus we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the Deceased was attributable to his war service.
32. For the reasons above therefore we affirm the decision under review."
The conclusion of Tamberlin J was that the Tribunal erred in law in the manner in which it assessed the existence of a reasonable hypothesis and, also, when assessing whether or not the hypothesis was disproved beyond reasonable doubt.
In arriving at this conclusion, Tamberlin J included the following conclusions in his reasons for review:
“31. …The assertion that the veteran's drinking was sufficient to satisfy the requirements of the SoP was also correct. Dr Gertler said that it appeared that the veteran became anxious as a result of the war-time experiences and that the anxiety may well have become chronic and alcohol become a form of self medication. This is consistent with his pattern anxiety after the war and the subsequent increase in alcohol consumption.
…
33. It cannot be said that the evidence of the applicant, Dr Gertler, and Mr Graham does not point to a reasonable hypothesis. It is evident that the veteran experienced serious psychological disturbances in the period shortly after the war which points to a connection with war service. That the veteran's drinking problem may not have begun until he began work six months later does not of itself make the hypothesis unreasonable. The pressure of work may have been a contributing factor to the veteran's drinking problem, but this does not preclude the veteran's war service from being a cause of the dramatic increase in his use of alcohol. The AAT's conclusion demonstrates, in my opinion, that it erroneously engaged in a fact-finding exercise and did not evaluate the hypothesis raised on the material before it.
34. In par 31 of the reasons the AAT considered whether it was satisfied beyond reasonable doubt that the death was not attributable to war service. Whether the AAT was so satisfied is, of course, a matter of fact to be determined by it. However, in my view, the erroneous approach adopted in relation to whether any reasonable hypothesis was pointed to also infected the AAT's reasoning on this aspect.”
On remittal to the Tribunal, the decision under review was set aside, by consent (N2000/1909, 26 April 2001) with the applicant entitled to the widow’s pension.
The Tribunal has applied the facts and reasoning in Borrett’s case to the decision end-point in this application for review.
In this application for review the Tribunal has concluded:
(a)that a reasonable hypothesis exists;
(b)that the late veteran had developed a pattern of alcohol consumption which continued after service; and
(c)that the threshold amount for alcohol consumption for colorectal cancer over the prescribed period has been met.
However, in order to establish a connection between operational service, alcohol consumption (particularly in the post-service period) and death from colorectal cancer, the Tribunal concludes that an additional step is necessary before undertaking Step 1 of Deledio. That is, there is a need to identify the kind of psychiatric injury that may have been suffered by the late veteran in the post-service period. The Tribunal accepts the evidence of Mrs Lecole, Kerry Bliesner, Kim Lecole and Mark Lecole that the late veteran was exposed to stressful or distressing events during service.
Turning to Borrett’s case, there was expert evidence before the Tribunal that the late veteran had become nervous as a result of his war-time experiences. In addition, that his anxiety may well have become chronic and alcohol become a form of self-medication. Furthermore, that there was a pattern of anxiety after the war related to alcohol consumption; and that the late veteran experienced nervous psychological disturbances in the period after the war that contributed to his drinking pattern.
Whilst there may have been intervening causes affecting the alcohol consumption by Mr Lecole in the post-operational service period, this does not preclude the late veteran’s war service from being a cause of his alcohol intake pattern.
Borrett’s case had the advantage of psychiatric opinion. This application for review has none whatsoever. Borrett’s case had evidence, for example, of psychological disturbance in the late veteran in the six month period after service, including recurrent nightmares, restless sleep, nervous anxiety (which continued for years after the war), which “forcefully pointed to a conclusion of a connection with war service” (see paragraph 35, Borrett).
The application of lay opinion and expert opinion in areas of medical uncertainty, and legal decision-making, have been addressed by our Courts. For example, where there was “uncertainty” whether expert medical evidence was able to advance any hypothesis linking aggravation of the veteran’s back condition to his war service, the Full Federal Court stated in McLean v Repatriation Commission [2001] FCA 1505 (26 October 2001):
“In the absence of this expert opinion it may have been permissible, at least, for the purpose of assessing the reasonableness of the hypothesis to infer a causal link between the veteran’s post war symptoms and his heavy duties during war service. However, given that the medical practitioners were apparently unable to establish the possibility of such a link, lay opinion could hardly be relied upon to establish it.”
For all of the above reasons the Tribunal makes the following directions:
(a)that the respondent arrange for a posthumous psychiatric evaluation of the kind of injury that the late Mr Lecole may have suffered in the immediate post-war service period as well as in the later part of the post-war period. The standard of proof in this regard to be the “reasonable satisfaction” standard in subsection 120(4); and
(b)that the matter be relisted for a resumed hearing on a date to be decided.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Denise Burton
Administrative Assistant
Date of Hearing 29 July 2004
Date of Decision 24 September 2004
Counsel for the Applicant Mr PM O'Neill
Solicitor for the Applicant Files, Stibbe and Associates
For the Respondent Mr M Smith, Departmental Advocate
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