Lola Stewart and Repatriation Commission

[2015] AATA 148

[2015] AATA 148

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2503
Re	Lola Stewart
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	13 March 2015
Place	Brisbane

I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that Lola Stewart is entitled to a widow’s pension. The date of effect of my decision is 1 September 2011.

...........................SGD................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

VETERAN’S AFFAIRS – Widow’s pension – Reasonable hypothesis connecting death with service – Ischaemic heart disease - Hypertension - Hypothesis considered reasonable – Applicant entitled to widow’s pension – Decision set aside.
LEGISLATION
Veteran’s Entitlements Act 1986 (Cth)

Statement of Principles concerning Ischaemic Heart Disease No. 89 of 2007 (as amended)

Statement of Principles concerning Hypertension No.63 of 2003 (as amended)

CASES

Bull v Repatriation Commission (2001) 66 ALD 271

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Collins v Administrative Appeals Tribunal (2007) 163 FCR 35

Collins v Repatriation Commission (2009) 177 FCR 280 at [51].

Deledio v Repatriation Commission (1997) 47 ALD 261

East v Repatriation Commission (1987) 16 FCR 517

Forrester v Repatriation Commission [2013] FCA 898

Gilbert v Repatriation Commission (1989) 86 ALR 713

Hill v Repatriation Commission (2007) 218 ALR 251

Knight v Repatriation Commission (2010) 52 AAR 547

Repatriation Commission v Bawden (2012) 206 FCR 296

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Law (1980) 147 CLR 635

Repatriation Commission v McKenna (1998) 52 ALD 72

Repatriation Commission v Stares (1996) 66 FCR 594

Repatriation Commission v Warren [2008] FCAFC 64

SECONDARY MATERIALS

M Berger, L M Birch and N F Conte, “The Nephrotic Syndrome Secondary to Acute Glomerulonephritis During Falciparum Malaria”, Ann Intern Med. 1967;67(6):1163-1171.

M Nynat and CV Plowe, Chapter 82, “Malaria” in Pharmacology and Therapeutics: Principles to Practice,  Scott A. Waldman et al (eds.) (1^st ed., 2009, Saunders, Elsevier Inc.), 1141-1170.

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

13 March 2015

INTRODUCTION

1. Mrs Lola Stewart (“the applicant”) was a dependent of the late Robert Stewart (“the veteran”) who served in World War II. On 1 December 2011 the applicant made her claim for a war widow’s pension.

2. The material before me indicates that the veteran was exposed to significant stress during his operational service. I have found that there is a reasonable hypothesis connecting the increased alcohol consumption (the fact of which is not disputed) of the veteran during and following the war, and the circumstances of that service. I make this determination on the basis that it is not far-fetched or fanciful, but rather quite reasonable in the circumstances, to suggest that subsequent increased alcohol consumption is related, or attributable to, exposure to extreme stress or trauma. I have therefore determined that the applicant’s claim should be granted as the death of the veteran was related to his service to his country during the war.

   Prior Decisions

3. On 27 June 2012 a delegate of the Repatriation Commission rejected the claim of the applicant for a war widow’s pension. On 11 April 2013 the Veterans’ Review Board (“VRB”) affirmed the decision of the delegate. The applicant now seeks review of the decision by this Tribunal.

   Service

4. During World War II the veteran enlisted in the Australian Army on 21 January 1941 and was discharged on 12 July 1946.[1] As the veteran served outside of Australia the whole of his service constitutes “eligible war service” in the form of operational service.[2] A report of Dr Albert Palazzo dated 7 August 2013 which is in evidence contains a summary of the service of the veteran during World War II: in particular, in his report he mentions that the veteran participated in the defence of Port Moresby against Japanese bombing and the battle for Sanananda where his battalion, the 49^th Battalion, was almost destroyed.[3]

   [1] Service record: Exhibit J.

   [2] As defined by ss 6A and 7 of the Act. 

   [3] Exhibit F.

   Legislative Framework

5. Section 8 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) provides for when the death of a veteran is taken to be war-caused. Relevantly, this provision applies where, under s 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.

6. Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.

7. Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1)(c) provides that the term “dependant” is defined to include a “widow”.

8. Section 5E of the Act defines a “war widow” to include a woman who was legally married to a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran.

9. As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and (3) of the Act.

10. Subsection 120(1) of the Act provides that where a claim 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.

11. Subsection 120(3) of the Act also provides that:

    In applying [s 120(1)] 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.

    Statement of Principles

12. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”). The RMA is an independent medical body that issues Statements of Principles based on sound medical-scientific evidence which set out factors relating to service which must exist in order to establish a causal connection between particular diseases, injuries or death, and service.

13. Section 196B(2) of the Act provides that if the RMA:

    … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

    (a)       operational service rendered by veterans;

    …

    [they] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

    (d)       the factors that must as a minimum exist; and

    (e)       which of those factors must be related to service rendered by a person;

    before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.

14. A Statement of Principles (“SoP”) is binding on decision-makers at all levels, including this Tribunal.

15. The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides, relevantly, that a factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a person if:

    (a) it resulted from an occurrence that happened while the person was rendering that service; or

    (b)       it arose out of, or was attributable to, that service;

16. In the case of applications lodged after 1 June 1994, where the RMA has made a Statement of Principles in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This is followed by the application of s 120A(3) of the Act, which provides that:

    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.

    Death of the Veteran

17. The death certificate records that the veteran died in 1982 when he was 63 years of age, the causes of death being:[4]

    Coronary atheroma;

    Coronary thrombosis; and

    Myocardial infraction.

    [4] See Exhibit A, f. 41.

    CONSIDERATION

18. I am required to consider the applicant’s claim in accordance with the Repatriation Commission v Deledio[5] (“Deledio”) four-step process.[6] 

    [5] (1998) 83 FCR 82 at [82]-[83].

    [6] Repatriation Commission v Bawden (2012) 206 FCR 296 at [40].

19. In Deledio, the Full Court of the Federal Court of Australia provided guidance on the four steps to consider:

    (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 a hypothesis, the Tribunal must then ascertain whether there is in force a [Statement of Principles (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.

    (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 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.[7]

    [7] Deledio at [82]-[83].

20. In Forrester v Repatriation Commission,[8] Mortimer J observed that in Collins v Administrative Appeals Tribunal,[9] Allsop J (as he then was) pointed out that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.

    Step 1 of Deledio

    [8] [2013] FCA 898 at [26].

    [9] (2007) 163 FCR 35 at [31].

21. In this first Deledio step I am required to examine the material to ascertain whether the material points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. It has been said that “an hypothesis is no more than a supposition of conjectural explanation of an ultimate fact”.[10]

    [10] Repatriation Commission v Stares (1996) 66 FCR 594 at [601].

22. In Forrester v Repatriation Commission,[11] Mortimer J pointed out that “whether material “points to” or “supports” a hypothesis is, of its nature, a matter which can be determined by inference or assumption”.  Her Honour remarked that in Repatriation Commission v Stares[12] (a pre-Deledio case), the Full Court held that “assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach”. There is a hypothesis connecting the death of the veteran with the circumstances of the service rendered by him. The veteran’s stressful experiences during service resulted in the veteran’s excessive consumption of alcohol during wartime and afterwards, which caused him to develop hypertension and subsequently ischaemic heart disease. 

    [11] [2013] FCA 898 at [30].

    [12] (1996) 66 FCR 594.

    Step 2 of Deledio

23. I am required to ascertain whether there are in force any Statements of Principles issued by the RMA under ss 196B(2) or (11) of the Act. There are Statements of Principles concerning Ischaemic Heart Disease (Instrument No 89 of 2007) (“the Ischaemic Heart Disease SoP”) and Hypertension (Instrument No 63 of 2013) (“the Hypertension SoP”) that are in force as amended.

    Step 3 of Deledio

24. In assessing whether a raised hypothesis is “reasonable”, the High Court of Australia in Byrnes v Repatriation Commission,[13] held, at 569,[14] that a reasonable hypothesis is raised when “the material points to some fact or facts (“the raised facts”) which support the hypothesis”. Furthermore, the High Court said, at 571, that in relation to this step:

    The position may be summarized 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 Commission give rise to a reasonable hypothesis connecting the veteran's injury with 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. 

    [13] (1993) 177 CLR 564.

    [14] Citing Mason CJ and Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at [414].

25. Since 1 June 1994, in accordance with s 120A(3) of the Act, a decision-maker must refer to the relevant Statement of Principles issued by the RMA to assist in establishing whether an applicant's hypothesis is reasonable, for the  purposes of the Act.  Therefore, this Tribunal must ascertain if it has material before it which fits the template for the relevant Statement of Principles. It has been held that the material must pose a credible proposition, not too remote or improbable; it must be:

    ... more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.[15]

    [15] East v Repatriation Commission (1987) 16 FCR 517 at [533].

26. Accordingly, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility.[16] The High Court of Australia held in Bushell v Repatriation Commission[17] that the s 120(3) test will reveal a reasonable hypothesis where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service”.

    [16] Gilbert v Repatriation Commission (1989) 86 ALR 713 at [721]; Repatriation Commission v Bey (1997) 79 FCR 364.

    [17] (1992) 175 CLR 408 at [416].

27. In Repatriation Commission v McKenna[18] Goldberg J emphasised that “it [was] fundamental to any enquiry under ss 120 and 120A of the Act to identify what is the relevant hypothesis”.

    [18] (1998) 52 ALD 72 at [80].

28. There are two alternative hypotheses advanced by the applicant in the statement of facts and contentions dated 18 August 2014.

29. One hypothesis is that the veteran commenced to consume alcohol heavily during and after his military service as a consequence of the extremely stressful nature of his service and that the veteran’s alcohol consumption habit caused him to develop hypertension and subsequently ischaemic heart disease. 

30. The statement of facts and contentions contains the alternative hypothesis that as a consequence of his traumatic war experiences the veteran suffered from chronic generalised anxiety disorder and anxiety disorder not otherwise specified as well as alcohol dependence/alcohol abuse with onset no later than 1943. At the hearing the applicant stated that the case of the applicant did not depend upon the veteran having any psychiatric condition.

31. The respondent in the statement of facts and contentions dated 5 September 2014 responded to the applicant’s statement of facts and contentions by recognising that “the Applicant contends the death of the veteran was caused by ischaemic heart disease preceded by hypertension or an anxiety disorder”. Another contention that was advanced by the respondent in reliance on the report dated 15 July 2014 of Dr Milad, consultant psychiatrist, which was admitted into evidence[19] was that there was no indication that the veteran “suffered from a clearly defined psychiatric disorder”. The respondent did not advance any other contentions.

    [19] Exhibit I.

32. These statements of facts and contentions which have been provided in accordance with the General Practice Direction provide the background against which each party formed its case and interchanged with the Tribunal prior to the hearing.[20] - At the hearing the respondent did not dispute that the veteran had an alcohol habit but did not concede that the alcohol habit was war caused.

    [20] Repatriation Commission v Warren [2008] FCAFC 64 at [92] per Logan J.

33. The Tribunal is required to determine the “kind of death” that is applicable to the veteran. The expression “kind of death” refers to the medical cause or causes of death.[21]  It has been held that there may be more than one cause of death.[22] In reliance on the death certificate I find that the cause of death of the veteran is ischaemic heart disease.

    [21] Repatriation Commission v Hancock [2003] FCA 711 at [8]-[9] per Selway J.

    [22] Repatriation Commission v Law (1980) 147 CLR 635 at 648; Collins v Repatriation Commission (2009) 177 FCR 280 at [51].

34. Clause 9 of the Ischaemic Heart Disease SoP contains the following definition: 

    "death from ischaemic heart disease" in relation to a person includes death from a terminal event or condition that was contributed to by the person’s ischaemic heart disease;

35. The Ischaemic Heart Disease SoP in cl 4 indicates that the RMA is of the view that there is sound medical-scientific evidence that indicates that death from ischaemic heart disease can be related to relevant service rendered by veterans. The veteran’s condition comes within the definition of ischaemic heart disease in cl 3(b) of the Ischaemic Heart Disease SoP which refers to a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis, or vasospasm of the coronary arteries. A post-mortem medical examination by Dr A. V. Jackson, Pathologist, in 1982 confirmed that there was mild left ventricular hypertrophy of the heart. Dr Jackson also reported that three coronary arteries were atheromatous and very calcified and the right coronary artery was blocked 4 cm. from its origin by a recent thrombosis.[23]

    [23] Exhibit A, f. 7 (Report of Dr A.V. Jackson, Pathologist: 4 February 1982).

1. Clause 5 of the Ischaemic Heart Disease SoP provides, subject to cl 7 (which is not material in this matter), that at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person.

2. I have to consider whether a reasonable hypothesis has been raised connecting death from ischaemic heart disease with the circumstances of the veteran’s relevant service. Clause 6 of the Ischaemic Heart Disease SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from ischaemic heart disease with the circumstances of a person’s relevant service is:

   (a)       having hypertension before the  clinical onset of  ischaemic heart disease

3. Clause 6 of the Hypertension SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the circumstances of a person’s relevant service is:

   (b)     consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension.

4. The material before me satisfies factor (b) in Clause 6 of the Hypertension SoP. Dr Hossack, cardiologist, has reviewed the post-mortem report which indicates that there was mild left ventricular hypertrophy of the heart of the veteran. Dr Hossack in his report dated 26 August 2013 has opined that it is highly probable that the left ventricular hypertrophy condition was as a result of hypertension. Dr Hossack has formed this opinion because the post-mortem report does not indicate any valvular abnormalities of the heart. This unchallenged report of Dr Hossack confirms that the veteran had hypertension before his death. There is no issue between the parties that the veteran consumed the requisite amount of alcohol stipulated in Clause 6 of the Hypertension SoP. This concession by the respondent was certainly appropriate having regard to the evidence of the applicant who confirmed her statements about the heavy drinking of the veteran.[24] It is a fair assumption that the clinical onset of hypertension may well have been in 1972 or 1973 because that is when the veteran’s heart problems began.[25] The applicant was not assisted by the destruction of medical records of the veteran by his general practitioner after the death of the veteran. These records would have indicated when the general practitioner had found that the veteran had hypertension. The applicant does not, under the SoP system, have to prove those facts which coincide with factors set out in an SoP.[26]  In any event there is no contention that the requisite alcohol consumption of the veteran had not occurred for the six months before the clinical onset of hypertension. The hypertension condition would not appear to be a congenital condition as a delegate of the respondent has recognised that the service medical documents confirm that when the veteran enlisted he was passed as fit Class 1 and that his blood pressure readings were within normal limits.[27]

   [24] Exhibit B, para. 17; Exhibit C, para 16. 

   [25] Exhibit B, para 18. 

   [26] Deledio at [275] per Heerey J.

   [27] Exhibit A, f. 13.

5. The unchallenged report of Dr Palazzo shows that the veteran was “involved in the thick of Sanananda”. The Sanananda campaign was where Australian and US troops faced a well-trained and disciplined defender. The official Australian history by Dudley McCarthy has referred to the “ghastly nightmare which the Sanananda affair had become”. McCarthy has remarked: “The primeval swamps, the dank and silent bush, the heavy loss of life, the fixity of purpose of the Japanese for most of whom death could be the only ending, all combined to make this struggle so appalling that most of the hardened soldiers who were to emerge from it would remember it unwillingly and as their most exacting experience of the whole war”.[28]

   [28] Dudley McCarthy, South-West Pacific Area First Year: Kokoda to Wau (Australian War Memorial,      Canberra, 1959), p.508 (Exhibit G).

6. The veteran was one of those soldiers who endured this experience, which was not assisted by the difficulties experienced in providing supplies to his unit. On 7 December 1942 the unit lost nearly 50 per cent of its members with 14 officers and 215 men killed or wounded in the battle of Sanananda. The applicant believes that the veteran was mentioned in despatches for the rescue of a comrade. Whilst Dr Palazzo has not been able to locate any of the unit’s documents which identify the veteran by name there is evidence that the veteran received rapid promotion in the field to the rank of corporal and then acting sergeant on 11 December 1942 during the Sanananda campaign.  The evidence before me also discloses supply difficulties of the unit. There can be no doubt that the Sanananda battle was a harsh experience for the veteran. The applicant has mentioned how the veteran visited the grave of his comrade Lance Corporal Victor Bust whenever he went to Bundaberg, which was the birthplace of the veteran. The World War 2 nominal roll shows that Lance Corporal Victor Bust died on 13 December 1942,[29] this was at the time of the Sanananda campaign.  It is not implausible that his visits to the grave would have brought back memories of the deaths of his comrades during the Sanananda campaign.

   [29] Exhibit K.

7. What is in issue is whether the heavy alcohol consumption of the veteran is related to his service. In determining whether there is a reasonable hypothesis, I am conscious that the High Court of Australia in Bushell v Repatriation Commission[30] explained, at 413, that s 120(3) of the Act is:

   not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis.

   [30] (1992) 175 CLR 408.

8. I have considered the material which raises the causal hypothesis. The veteran would have been of legal drinking age for just over a year before his enlistment. The applicant was a sportsman who worked and held a responsible job as an insurance salesman before the war. There is no suggestion that the applicant had an alcohol consumption habit before his enlistment. The evidence of the applicant is that after the war the veteran was a seasoned drinker who drank every day. The fact that after his discharge the veteran would drink with his comrades, without more, may not support a hypothesis if the veteran wanted simply to be in the company of his wartime comrades. It is, however, clear that the veteran did certainly drink more heavily after the war and on regular occasion “binged”. The daughter of the veteran has also verified that her father would drink some quantity of alcohol every day.

9. There is material that supports the reasonable hypothesis that the heavy drinking of the veteran after World War II was caused by his stressful experiences during World War II. Dr Palazzo in his report has indicated that the veteran was exposed to exceptionally stressful service. The applicant in her statement mentioned the traumatic experiences recounted by the veteran who in the first year of marriage would sweat, tremble and call out in his sleep.[31] A delegate of the respondent has recognised that “the veteran’s service may have been very stressful to him”. ^[32]

   [31] Exhibit B, para 14.

   [32] Exhibit A, f. 13.

10. The stressful nature of the wartime service of the veteran was discussed by Dr Milad, consultant psychiatrist, in his report dated 15 July 2014 which was commissioned by the respondent. Dr Milad has commented: “One would assume that such a traumatic experience of being involved in the war experience of Second World War at Papua New Guinea, one might suffer psychological injuries but the history provided did not indicate the impact on his social functioning, interests or hobbies, mental state or general conduct but there is evidence that he possibly drank more; even though I was unable to quantify that”.[33] The fact that Dr Milad uses the word “possibly” in the context of a discussion on the effect of stress on the veteran supports the existence of a reasonable hypothesis which links the post-war drinking of the veteran with the stress of his service.

    [33] Exhibit I, f. 16.

11. In Bull v Repatriation Commission[34] Allsop and Emmet JJ remarked: “It could hardly rationally be said that an hypothesis that the increased drinking habits were brought about by his associations in the war or were to cope with his experiences in the war was fanciful or tenuous, etc. People who experience stress sometimes cope by consumption of alcohol.” I consider that this is a case where such a hypothesis is reasonable. In forming this opinion I have particularly relied upon the considered opinion of Dr Milad who has indicated that in the case of the veteran there is a possible link between war-time stress and increased alcohol consumption. Having regard to this opinion of Dr Milad the hypothesis that has been put forward on behalf of the applicant cannot be regarded as fanciful or tenuous. The fact that Dr Milad was unable to quantify the increased amount of alcohol is not important as there is no issue that the veteran drank alcohol at the rate specified in clause 6(b) of the Hypertension SoP.

    [34] (2001) 66 ALD 271 at [40].

12. At this stage of my inquiry I am not required to make any findings of facts as to matters of proof. In Knight v Repatriation Commission[35] Katzmann J explained that “the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis”.[36] In Deledio at 275 Heerey J pointed out that a claimant does not have to prove all the facts raised by a hypothesis.

    [35] (2010) 52 AAR 547 at [35].

    [36] [2010] FCA 1134 at [35].

13. I consider that there is a reasonable hypothesis that the death of the veteran is connected with the circumstances of his service. There is material pointing to the veteran being exposed to extreme stress whilst he was on operational service; and having regard to the opinion of Dr Milad it is reasonable to assume that this caused the veteran to become a heavy drinker of alcohol after World War II. This hypothesis fits the template that the veteran consumed alcohol at the rate that is specified by the Hypertension SoP for the six months before the clinical onset of hypertension.

    Step 4 of Deledio

14. I am now required to consider, under s 120(1) of the Act, whether or not, for the hypothesis, I am satisfied “beyond reasonable doubt” that the veteran's death was not war-caused. In Forrester v Repatriation Commission[37] Mortimer J, in discussing the fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at [this] stage”. There is no evidence which would enable me to be satisfied beyond a reasonable doubt that the death of the veteran was not war-caused. The respondent quite properly made no challenges to the authenticity of the statements tendered on behalf of the applicant. The statements of the applicant were consistent with the report of Dr Palazzo. While it is true that the applicant had informed Dr Milad that the veteran was “not an alcoholic” or a drunkard, her case was not dependant on the veteran being an alcoholic or drunkard. 

    [37] [2013] FCA 898 at [80].

    CONCLUSION

15. In my opinion the applicant is entitled to a war widow’s pension and should be accorded recognition as a war widow.

16. If the applicant had not succeeded on the reasonable hypothesis put forward by the applicant I would have remitted the application for further consideration by the respondent as there would have been a need for the further investigation of the claim in two respects which would require the consultation of any available medical records.

17. First, the post mortem report reveals that there were “several pitted scars” on each kidney of the veteran.[38] I consider that this has significance in view of the fact that renal scarring is included in the definition of a “chronic renal disease” in clause 9 of the Hypertension SoP. The fact that the veteran had six hospitalisations because of malaria would have relevance to whether there is a reasonable hypothesis based upon the satisfaction of factor 6(f) in the Hypertension SoP. This unarticulated hypothesis should have been considered as in my view it clearly arises from the material before this Tribunal.[39] The medical literature confirms that malaria can cause significant glomerular dysfunction.[40] Renal failure has long been recognised as being caused by malaria.[41]

    [38] Exhibit A, f. 7.

    [39] Hill v Repatriation Commission (2007) 218 ALR 251, 271 [107] per Wilcox, French and Weinberg JJ.

    [40] M Berger, L M Birch and N F Conte, “The Nephrotic Syndrome Secondary to Acute Glomerulonephritis During Falciparum Malaria”, Ann Intern Med. 1967; 67(6):1163-1171.

    [41] M Nynat and CV Plowe, Chapter 82, “Malaria” in Pharmacology and Therapeutics: Principles to Practice, Scott A. Waldman et al (eds.) (1^st ed., 2009, Saunders, Elsevier Inc.), 1141-1170.

18. Secondly, consideration would have to be given as to whether the medication that was administered to the veteran during wartime for malaria, dysentery and other conditions had significance in terms of each Statement of Principles.

    DECISION

19. I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension with effect from 1 September 2011.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

................................SGD...................................

Associate

Dated 13 March 2015

Date of hearing	29 January 2015
Solicitor for the Applicant	Terrence O’Connor, Solicitor
Advocate for the Respondent	Bruce Williams, Repatriation Commission