Linning and Repatriation Commission
[2011] AATA 115
•22 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 115
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1369
VETERANS' APPEALS DIVISION ) Re GLORIA LINNING Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member and
Dr G J Maynard, Brigadier (Rtd), Member
Date22 February 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[SGD]...........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Benefits and entitlements – War widows pension – Operational service with Australian Army – Death from hypertension – Application of Statements of Principles - Reasonable hypothesis of relevant relationship to eligible war service not raised – Death not war-caused – Decision under review affirmed
Veterans’ Entitlement Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 14, 119, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Bey (1997) 149 ALR 721
REASONS FOR DECISION
22 February 2011 Mr R G Kenny, Senior Member and
Dr G J Maynard, Brigadier (Rtd), MemberBACKGROUND
1. Ernest Linning (the veteran) served in the Australian Army in World War II. He died on 29 April 1997 at the age of 76 years. On 24 July 2009, his widow and dependant, as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (the Act), lodged a claim, under s 14 of the Act, for a pension. This was on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 10 August 2009 and then by the Veterans’ Review Board on 18 March 2010.
SERVICE
2. The veteran’s full-time army service was from 22 September 1941 until 9 November 1945 during which he was based for periods in the Northern Territory. It is common ground that all of his service constitutes eligible war service in the form of operational service in accordance with sections 7 and 6A[1], respectively, of the Act.
[1] This was in respect of the terms of s 6A, Item 1 para (b) of Column 3 of the Act.
ISSUES AND LEGISLATION
3. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:
(1)Subject to this section … for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) …
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
4. Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
5. The application of that provision is affected by the terms of s 120(3) and by s 120A(3) of the Act. Those provisions read:
120 (3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person ...
120AReasonableness of hypothesis to be assessed by reference to Statement of Principles…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
6. Those provisions are concerned with matters of causation and require a consideration of the Statements of Principles which have been published by the Repatriation Medical Authority (RMA). However, before applying the provisions of the Act relating to causation, it is necessary to determine the “kind of death” applicable to the veteran. That matter is to be determined to the decision-maker’s reasonable satisfaction in accordance with s 120(4) of the Act. The veteran’s death certificate nominates the cause of death to be:
1(a) uraemia [1 week] (b) chronic renal failure [years] (c) hypertension [years]
2 ischaemic heart disease [years].
7. Anthony Harding, for the applicant, submitted that the kind of death in the veteran’s case was that related to kidney failure due to hypertension[2] or, alternatively, ischaemic heart disease due to hypertension. In either case, he submitted that the operative cause of death was hypertension. This was conceded by Jeff Kelly, for the respondent. We are reasonably satisfied that the kind of death was that relating to hypertension. It was common ground and we are reasonably satisfied that the clinical onset of the veteran’s hypertension was in 1971[3]. The issue for the Tribunal is whether the veteran’s hypertension arose out of, or was attributable to, any eligible war service rendered by the veteran.
[2] See the medical report, dated 3 April 1999, of Dr Robert Goodwin MB., BS., FRACP. See also the opinion of Dr Stephen Cramb, medical advisor with the respondent, dated 6 October 1997.
[3] See the report, dated 28 April 1999, of Dr Graham Row MB.,BS., FRACP.
CONTENTIONS
8. Mr Harding advanced two hypotheses for the relationship of the veteran’s hypertension to service. He submitted that the veteran developed a pattern of alcohol consumption during and because of his service in the Northern Territory which coincided with Japanese bombing raids and that this continued in post-service life at a level averaging 300 grams of alcohol per day until 1971 when hypertension was diagnosed. An alternative hypothesis was that the veteran commenced smoking cigarettes during and because of his service in the Northern Territory which coincided with the bombing raids; that this continued in post-service life until 1955 when he ceased smoking; that he then developed the habit of eating sweets, in particular chocolates, as a substitute for nicotine; and that this resulted in weight gain to the extent where he became obese as at 1971 when hypertension was diagnosed. However, after examining the veteran’s files, it was conceded that there was no support for the contention that the veteran had been obese, in the technical sense required by the Statement of Principles, before he became hypertensive and this second hypothesis was not pursued. On the material before us, we are satisfied this was the appropriate approach.
9. For the respondent, Mr Kelly submitted that there was no evidence that the veteran’s post-service alcohol consumption was related to any aspect of his service or that it was at the level of 300 grams per week until 1971. He also submitted that the veteran was not obese as at the time of the clinical onset of hypertension.
EVIDENCE
10. The applicant met the veteran in 1957. They cohabited from 1958 and were married in 1976.
11. The applicant completed an alcohol consumption questionnaire on 11 May 2009. Therein, she wrote that the veteran told her that he started drinking alcohol during the war because “everyone was drinking and it helped them to relax”. She described his consumption level as one 26 oz/750 ml bottle (“tallie”) per day with one or two nips of scotch in his later years. She also wrote that he would binge-drink in that he would consume a considerable amount of alcohol at a single session and that he did this sometimes on weekends.
12. The applicant completed a statement on 6 July 2010. There, she wrote that the veteran’s family had advised her that, before the war, he was only a social drinker who only went to a hotel occasionally and never drank alcohol to excess. She wrote that a brother of the veteran, Ronnie Linning, told her that the veteran had brought “baggage” back with him from the war. She wrote that the veteran had not talked to her about his army experiences while he was in the Northern Territory. She confirmed that the veteran told her he began consuming alcohol on service “because everyone drank alcohol” to help them to relax and continued thereafter for that reason. The applicant wrote that the veteran was a regular drinker at the hotel when she first met him and, if he attended a party, he was usually the last to leave as he would be drinking “with the boys”. She wrote that this binge drinking was to become his normal drinking pattern on one or two Saturday nights per month when he would drink with his mates. Nonetheless, she also wrote that his drinking slowed down for a while after she began living with him but that he maintained his consumption of one tallie per day at that time. She said that, from 1961 to 1974, he had worked for a company which installed ceilings in hotels throughout Queensland; that, during that period, he was away from home for up to six weeks at a time; that he would stay in hotels; and that he would drink alcohol heavily.
13. In her evidence, the applicant said that the veteran was an angry man who was never completely happy. She confirmed that he drank one tallie at home each evening but would have binge sessions with his mates about every three months. She said that, on these occasions, he would become paralytic. She referred to his working trips to country Queensland and said that the wife of one of his work-mates advised that the veteran’s drinking had caused her husband to cease that work. She referred to file notes which declared that the veteran was a moderate drinker and she described these as being inaccurate. She said that she understood the comment about bringing baggage back from the war as being a reference to alcohol consumption but agreed that it may also have been a reference to the circumstances of his two previous marriages.
14. Raymond Linning is the veteran’s younger brother, being 11 years his junior. He said that he had never seen his brother consume alcohol at home before the war but that he would go to a hotel with work-mates at times and he described him as a moderate drinker who would frequent hotels before the war and consume about two beers in the hotel. He recalled an incident when his father became aware that the veteran was in a hotel with work-mates. Mr Linning said that, on that occasion, his father forcibly removed the veteran from the hotel. He said that the veteran had referred to the bombing in the Northern Territory in terms that it was terrifying because bombs had landed close to the guns of his regiment and that he had nightmares about this. Mr Linning said that he had not socialised with the veteran prior to the war but had done so after the war and had never seen him drunk. The applicant also said that the veteran had little to do with his brother Raymond after 1958.
15. In a medical history sheet completed in February 1975, the following reference is made to the veteran’s alcohol intake: “moderate beer – RSL Club – 3 days week”. In the report completed in 1954 when the veteran was 33 years of age, he is noted to be a “very occasional drinker” of alcohol.
16. The respondent utilised Writeway Research Service Pty Ltd to obtain background information about the veteran’s location as a member of 5 Field Regiment during the Japanese air raids in the Northern Territory. The report, dated 19 October 2010, was completed by Col P J Langford (Rtd). Therein, he noted that there were 64 air raids in the Northern Territory from 19 February 1942 until 12 November 1943 and concluded that there were two air raids in the general area of 5 Field Regiment. These were at Coomalie airstrip on 13 August 1943 and in Darwin on 12 November 1943. However, he was unable to establish from the records he consulted how close to the veteran’s position that the bombs fell or how many bombs there were.
17. A report was also completed, on 15 August 2010, by consultant historian Dr Albert Palazzo. In addition to the two incidents of bombing described in the Writeway report, Dr Palazzo identified a further raid, noted in the 5 Field Regiment diaries, on 18 July 1943. He described some of the raids as being “quite close” to 5 Field Regiment’s position.
PROCEDURE FOR CONSIDERATION
18. The procedure to be adopted in determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms[4]:
(i)The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(ii)If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) ...
(iii)If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
(iv)The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[4] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 – 98.
Step 1 - Hypothesis
19. The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. We accept that the hypertension-related contention nominated by Mr Harding constitutes an hypothesis of a connection of the veteran’s death to service.
Step 2 - Statement of Principles
20. For hypertension, the relevant Statement of Principles is Instrument No 35 of 2003 as amended, relevantly[5], by Instrument No 11 of 2008[6]. Therein, factor 5(b) and the relevant associated definition read:
(b)consuming an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension;
“alcohol” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
[5] The Statement of Principles was also amended by Instrument No 3 of 2004.
[6] The Statement of Principles for ischaemic heart disease is Instrument No 89 of 2007 (as amended), factor 6(a) of which is “having hypertension before the clinical onset of ischaemic heart disease”.
Step 3: - Reasonableness of the Hypothesis
21. The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of subsection 120(3) of the Act. This step is not concerned with proof of the claim. Rather, it relates to the question of whether there is some material which calls for a determination under subsection 120(1) of the Act[7]. This requirement will be met if an hypothesis fits or is consistent with the template provided by factor 5(b) and the associated definition in the Statement of Principles.
[7] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.
22. There are inconsistencies in the material concerning the veteran’s alcohol consumption. The applicant described the veteran as consuming one tallie each day at home but also described heavy drinking while working at hotels in country Queensland and heavy binge drinking sessions with his mates in Brisbane. She variously described these sessions as occurring two times per month and, in her evidence-in-chief and under cross-examination, as every three months. Raymond Linning’s evidence was that he had never seen the veteran drunk but, on the applicant’s evidence, he and the veteran saw little of each other after 1958. The medical history sheet dated February 1975 describes “moderate beer – RSL Club – 3 days week”. That is some four years after the six month period relevant to the Statement of Principles. The report completed in 1954 notes him to be a “very occasional drinker” of alcohol. That is some 17 years before the period relevant to the Statement of Principles and, with Raymond Linning’s evidence, points to a low level of consumption prior to 1958. The applicant’s evidence points to a higher level of consumption during her period of cohabitation with the veteran. The raised material, particularly that of the applicant, points to a pattern of consumption of an average of at least 300 grams (or 30 standard drinks) of alcohol for a continuous period of at least the six months before the clinical onset of the veteran’s hypertension in 1971 such as to meet factor 5(b) in the Statement of Principles.
23. There are also inconsistencies in the evidence concerning the commencement of the veteran’s alcohol consumption. The applicant’s evidence is that he told her that he commenced during his service. At the commencement of his full-time service, the veteran was still a few months under the legal age of 21 years for consuming alcohol in licensed premises. However, Raymond Linning was clear in his evidence that the veteran consumed beer in hotels to a moderate degree before the war and he detailed a situation where he was removed from a hotel by his father. Consistent with that is the evidence of the applicant that the family had told her that, before the war, the veteran was a social drinker who went to a hotel occasionally and never drank alcohol to excess. The raised material points to a degree of pre-service use of alcohol and a continuation of use during and after service.
24. Factor 5(b) of the Statement of Principles requires that there be material which points to a causal connection between the veteran’s alcohol consumption in the six months before the clinical onset of hypertension and his eligible war service[8]. As to the reasons for the taking of alcohol, the applicant’s evidence was that he commenced during the war because “everyone was drinking and it helped them to relax” and that he continued after service for that reason. It is not uncommon for a veteran to refer to circumstances of stress or trauma as a reason for developing a habit of alcohol consumption. While 5 Field Regiment experienced Japanese bombing raids, the evidence is unclear as to the proximity of these to the veteran. There is no evidence that the veteran ever suffered from any diagnosed psychiatric condition which may have manifested itself in alcohol consumption. He told the applicant that he had been terrified and had nightmares but there is no reference in the applicant’s evidence to any such disturbance in the veteran from 1957 to 1971. Significantly, the evidence does not point to the veteran having referred the applicant to the bombing at any time from when she met him in 1957 until the onset of hypertension. The applicant said that Ronnie Linning told her that the veteran had brought “baggage” back with him from the war. However, she was not clear whether this was a reference to alcohol consumption or to the two previous marriages of the veteran prior to her meeting him in 1957.
[8] See clause 4 of the Statement of Principles.
25. To raise a reasonable hypothesis, that material relied on must point to the hypothesis. It is not sufficient for the material merely to raise a possibility or merely to leave the hypothesis open[9]. The material before us falls into that category in that it raises no more than a possibility of a relationship between the veteran’s service and his alcohol consumption. In that way, the material merely leaves the hypothesis open. For that reason, the hypothesis advanced on behalf of the applicant is not reasonable and it follows that the third of the Deledio steps is not satisfied.
[9] See Repatriation Commission v Bey (1997) 149 ALR 721 at 730.
Step 4 - Is Death War-Caused?
26. As no reasonable hypothesis of a relevant relationship is raised between hypertension and the veteran’s eligible service, it follows that his death from that condition is not war-caused and it is not necessary for consideration to be given to the fourth of the Deledio steps. However, if a reasonable hypothesis were raised in this matter, we would be satisfied beyond reasonable doubt that the veteran’s consumption was unrelated to service. He consumed alcohol before his service and he continued its use during service to assist in relaxation. That was the reason he gave to the applicant for continuing his post-service alcohol consumption. From the time that the applicant met the veteran, his consumption of alcohol seems to have increased to the point where he engaged in periodic episodes of binge drinking in hotels in Brisbane and when working away from Brisbane. These drinking sessions were conducted in the company of the veteran’s friends and/or work-mates and support his statements to the applicant that he continued to use alcohol in post-service years to assist him to relax.
DECISION
27. The Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed:..................................[SGD]............................................
Danielle Armstrong, Research AssociateDate/s of Hearing 9 December 2010
Date of final submissions 4 February 2011
Date of Decision 22 February 2011
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Mr Terence O'Connor
Solicitor for the Respondent Mr Jeff Kelly
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