MacDonald and Repatriation Commission - [2001] AATA 768

DECISION AND REASONS FOR DECISION [2001] AATA 768

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/705

VETERANS' APPEALS DIVISION          )
           Re      ELSA MAY MACDONALD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr IR Way, Member

Date7 September 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the death of the veteran, Ian Macdonald, was war-caused and that the applicant, Elsa May Macdonald is entitled to receive a war widow's pension with effect from 12 December 1998.

(Sgd) I R WAY
MEMBER
CATCHWORDS
VETERANS' AFFAIRS – whether reasonable hypothesis – service related drinking habit

Veterans' Entitlements Act 1986 ss 5(b), 6(a), 8, 119, 120, 120A

Bull v Repatriation Commission [2001] FCA 823
Repatriation Commission v Deledio (1998) 83 FCR 82
Dixon v Repatriation Commission (1999) 29 AAR 235
Byrnes v Repatriation Commission (1993) 30 ALD 1

REASONS FOR DECISION

7 September 2001 Mr IR Way, Member

This is an application by Elsa May Macdonald (the applicant) for review of a decision of the Veterans' Review Board dated 29 May 2000, affirming a decision of the Repatriation Commission (the respondent) dated 21 April 1999 which refused the applicant's claim that the death of her late husband, Ian Macdonald (the veteran), was related to his war service.
The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6), and the following documents:
For the applicant

Exhibit A1 Statement of the applicant dated 22 January 2000
Exhibit A2 Statement of the applicant dated 15 March 2001
Exhibit A3 Medical opinion of Dr P Grant dated 15 February 2001

For the respondent

Exhibit R1 Alcohol Questionnaire dated 2 March 1999
Exhibit R2 Veteran's Record of Service
Exhibit R3 Respondent's Guidelines – Smoking and Alcohol-related Conditions

The applicant gave oral evidence.

The applicant is the widow of the veteran who rendered operational service as defined in Sections 5(b) and 6(a) of the Veterans' Entitlements Act 1986 (the Act), namely, continuous full-time service outside Australia during World War II.
Mr Macdonald rendered operational service as he served with the Royal Australian Air Force (RAAF) including service outside Australia from 25 May 1941 to 19 October 1945.
Under Section 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of a veteran was war-caused. A dependant of a deceased veteran, including a widow (Section 11) may make a claim to receive a pension under Section 14.
The veteran was born on 21 January 1917 and died, at age 78, on 10 April 1995, the cause of death being certified as:
(a) Aspiration pneumonia; and
(b) Cerebrovascular accident.
It is the applicant's hypothesis that the veteran developed a drinking habit as a result of his war service and that this service-induced drinking habit contributed in whole or in part to his drinking habit post-war, this contributing to his death.
Legislative framework
The question whether the death of each veteran who has rendered operational service was war-caused within Section 8 of the Act is to be decided by applying the standard of proof prescribed by Section 120 of the Act. With regard to the meaning of the expression "war-caused", the relevant part of Section 8 provides:
"War-caused death
(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)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly, the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise."
Section 120 describes the relevant standard of proof:
"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.
Note:This subsection is affected by section 120A.
……
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:This subsection is affected by section 120B.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or defence-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."
Other relevant provisions of the Act in respect of the claim are as follows:
"119. Commission not bound by technicalities
(1)       In considering, hearing or determining, and in making a decision in relation to:
          (a)       a claim or application;
          …..
          the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."
Section 120A provides that the reasonableness of hypothesis is to be assessed by reference to the relevant Statement of Principles (SOP).
"120A. Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
Note 1:          Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2:For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a 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.
Note:   See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)       the kind of death met by the person;
as the case may be."
Section 120(1) provides that the decision-maker must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the decision-maker is satisfied beyond reasonable doubt that the material before it does not suggest that Section 8 of the Act applies, may the decision-maker determine that the death of such a veteran was not war-caused.
Section 120(3) provides that the decision-maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if in the opinion of the decision-maker, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
It is the applicant's contention that the Statement of Principles (SOP) relating to Cerebrovascular Accident applies, namely, Instrument No. 7 of 1999, wherein it is relevantly stated that the Repatriation Medical Authority is of the view that cerebrovascular accident and death from cerebrovascular accident can be related to relevant service rendered by a veteran if various factors exist, including:
"5(e) regularly consumed an average of 250g per week of alcohol (contained within alcoholic drinks) for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident."

and that this factor is related to the veteran's relevant service.

The SOP defines alcohol contained within alcoholic drinks as that measured by the alcohol consumption utilising the Australian standard of 10 g of alcohol per standard alcoholic drink.
Applicant's evidence
It was the applicant's evidence that she met her husband in July 1940 on Kynuna Station in north-west Queensland and that they were married on 11 April 1942. She said she met her husband-to-be when she was employed as a Governess and he was employed as an Overseer (Trainee Manager) on Kynuna Station, about four miles from the township of Kynuna. She said that she saw him every day while he was working at Kynuna and that she "didn't see him drink ever". However, she qualified this to say that he drank occasionally at social events and to her recollection this consisted of two Balls in the Kynuna township. She said there was no alcohol on the station, no hotels in the town and access to the township was limited by a lack of vehicles.
She said the veteran enlisted in the RAAF in May 1941 and that after his training he served at Horn Island and was later posted to Morotai Island where he remained until the end of the war, serving as a Wireless Operator/Air Gunner. The applicant stated that the veteran was a quiet man who did not generally discuss with her how he felt about his war service or any dangers he faced. She could recall that he told her of one incident where the veteran stated that they had been lucky to survive after one bombing raid when his plane had been damaged (she thought from gunfire from enemy ships).
It was the applicant's evidence that when the veteran returned from the war there was some change in him, he was very unsettled for some twelve months and that at this stage he drank regularly.
She said he drank on a daily basis after work, initially at hotels and later mainly at home. She said that up until the mid-1970s the veteran drank beer with a daily intake of at least six glasses. However, after the mid-1970s, his drinking habit was modified. The applicant admitted to some confusion in her mind and inconsistency in her two statements about the quantities of alcohol consumed by her husband after the mid-1970s, because she was not familiar with how much a glass held nor was she familiar with what she described as "the new weights and measures". In her oral evidence the applicant clarified the veteran's drinking habit as being three to four glasses of sherry in the evening, up to two glasses of sherry at mid-day and, in addition, consumption of other alcoholic drinks on offer at social occasions.
The applicant, in Exhibit R1, stated that the veteran started to drink alcohol on a regular basis to relieve stress during training and when in action as a Wireless Operator/Air Gunner and that thereafter he never stopped consuming alcohol.
The Tribunal notes that the RAAF entry examination of the veteran on 30 September 1940 (T4/3) records under Alcohol Habit "moderate" and that the veteran was "fit for air crew".
The Tribunal also notes that there is no dispute between the parties that the veteran first suffered a clinical onset of cerebrovascular accident on 23 December 1984 (T4/26).
Submissions
It was submitted for the applicant that the evidence clearly showed that the veteran satisfied Factor 5(e) of Instrument No. 7 of 1999, namely, regularly consuming 250 grams per week of alcohol for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident and that the veteran's drinking habit was related to his service.
With respect to the veteran's drinking habit being related to his service, it was submitted that the applicant's evidence should be accepted, namely, that the veteran did not drink prior to service, that the veteran did have a well-established drinking habit post-war and that the conditions of service, including stressful events, were a contributing factor in the veteran developing an alcohol habit.
Insofar as the description of the veteran being a moderate drinker on examination for enlistment, the applicant submitted that the plain English meaning of "moderate" as given in the Australian Concise Oxford Dictionary 3rd Edition, should be accepted, namely, "avoiding extremes, temperate in conduct or expression". It was submitted that in no sense could the description "moderate" be interpreted as "frequent, regular use of alcohol" constituting "an established pattern of alcohol consumption", as found by the Veterans' Review Board.
The respondent, in final submissions, said that the applicant's recollection of events including the veteran's post-war drinking habit, was not challenged and on this basis it was accepted that the veteran satisfied Factor 5(e) of the relevant SOP. It was submitted that the outstanding issue with respect to whether the applicant's hypothesis was reasonable, was the issue of causation of the veterans' drinking habit.
With respect to causation, the Tribunal was referred to Bull v Repatriation Commission [2001] FCA 823, where the contentious matter before the Court was whether or not there was a causal link between the deceased's excessive drinking and his war service. The Tribunal was also referred to the Department's Guidelines for Claims Assessors on Smoking and Alcohol-related Conditions and Military Service (Exhibit R3), wherein it was submitted the Guidelines relevantly stated:
"4.The consumption of alcohol can be related to service in one or more of the following ways:

Alcohol consumed during eligible or operational (including war-like and non-warlike) service and of a causal result of that service.
………
6.Material that indicates any history of alcohol consumption prior to service may argue against both a temporal and causal connection with service."

It was submitted that the veteran did not satisfy the Department's Guidelines in that, on the applicant's evidence, the veteran commenced drinking during his training, before his period of overseas service and related stressful events. It was further submitted that the contemporaneous records showed that the veteran was a moderate drinker on entry to the RAAF and that the Tribunal, after consideration of all the material before it, should find the hypotheses raised by the applicant to be "too tenuous" to be a reasonable hypothesis.
Consideration
The Tribunal is satisfied that the material before it points to an hypothesis as raised by the applicant, namely, that the veteran's death resulted from a cerebrovascular accident which was connected to the veteran's regular consumption of alcohol and that this consumption of alcohol could be connected with the circumstances of the veterans' relevant service.
There is no dispute between the parties, and the Tribunal finds accordingly, that the relevant SOP in this matter is Instrument No. 7 of 1999 and that within this SOP the relevant factor is Factor 5(e), namely,
"regularly consumed an average of 250g per week of alcohol (contained within alcoholic drinks) for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident."
In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 the Full Court said:
"3.If an SoP is in force the Tribunal must then form the opinion whether a 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."
As stated in Dixon v Repatriation Commission (1999) 29 AAR 235, with respect to steps 3 and 4 outlined in paragraph 31 above, Wilcox J said:
"24. ….. In the present case the Tribunal fused together steps 3 and 4. It should have resolved step 3 by determining whether the claims made in the material before it satisfied the factor requirements of the Statement of Principles relating to generalised anxiety disorder, that is, still considering them as claims and without making any judgment about their truth. If the AAT had answered this question in the affirmative, the final step would have been to consider the truth of the claims, this being a step in carrying out the obligation imposed on the Tribunal by s 120(1) of the Act to decide whether it is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused. If the Tribunal had been satisfied beyond reasonable doubt that Mr Dixon did not undergo the experiences he claimed, or that any experiences he did undergo did not cause the generalised anxiety disorder he claimed to suffer, this would have been a proper basis for achieving the satisfaction mentioned in s 120(1) and dismissing his appeal.
25. The question whether a decision maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision maker will rule against a claimant simply because he or she is not persuaded the claimant's story is probably true. Although the decision maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision maker is likely to reject the application even though he or she thinks the claimant's story may possibly be true. This would defeat the protection for veterans embodied in s 120(1), whereby a claim which fits the factors in the relevant Statement of Principles must be accepted unless the decision maker is satisfied, beyond reasonable doubt, that it is without justification."
Further, the High Court in Byrnes v Repatriation Commission (1993) 30 ALD 1 stated:
"(2) If a reasonable hypothesis is established, subs (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."

After consideration of all of the material before it, the Tribunal is satisfied that the hypotheses put forward by the applicant are in part consistent with the template of the relevant SOP in that the veteran first suffered a clinical onset of cerebrovascular accident on 23 December 1984 and that the raised facts about the veteran's alcohol consumption satisfy Factor 5(e) of the SOP. The Tribunal is also satisfied that the requirement of the SOP that Factor 5(e) be connected with the veteran's service is pointed to by the raised facts. The Tribunal is therefore satisfied that the hypothesis as contended for by the applicant, is a reasonable hypothesis and that the Veterans' Review Board was correct in determining that there was a reasonable hypothesis connecting the veteran's death with service.
Turning then to truth of the facts necessary to support the hypothesis.
There is no dispute between the parties and the Tribunal finds accordingly that the veteran's consumption of alcohol meets Factor 5(e) of the SoP.
With respect to the connection of the veteran's alcohol consumption to his war service, the Tribunal does not accept the respondent's submission that the veteran fails to meet the Department's Guidelines. Whether the veteran first commenced drinking during training as opposed to during operational service is not, in the Tribunal's view, a question which the Guidelines relevantly canvass. Further, the Tribunal accepts the submission made by the applicant that the contemporaneous record of the veteran being a moderate drinker prior to enlistment does not mean that the veteran frequently and regularly used alcohol prior to commencing his service in the RAAF such that he had an established pattern of alcohol consumption prior to his service. In arriving at this conclusion, the Tribunal has taken note of the plain English meaning of "moderate" as defined in the Concise Oxford Dictionary and within the context of all of the applicant's uncontroverted evidence; and that the veteran was, on enlistment, classified "fit for air crew".
The Tribunal is satisfied that the veteran did not have a drinking habit prior to service, that his drinking habit commenced during service and continued after service and that his drinking habit was causally related to his service. The Tribunal accepts that the veteran was subject to stress as a result of his service activities, including action as a Wireless Operator/Air Gunner, and that the veteran developed a regular drinking habit during his service as a means of relieving this stress and that this habit remained with him permanently post-war.
With respect to Bull v Repatriation Commission (supra), apart from reinforcing the approach to be taken in applying the relevant legislation as outlined above, the Tribunal finds this judgment to be of little assistance. The circumstances in Bull's case are quite different from the circumstances in this matter. As His Honour Justice Gyles said at paragraph 12:
"It (the Tribunal) had a body of material before it which related to the drinking of the deceased. None of it bore directly upon the link between war service and drinking, or even his drinking during the war. He drank before the war, he drank after the war and he continued to drink for the rest of his life. Whether that material, coming as it does from varies sources, gives rise to a reasonable hypothesis is, as the High Court said in Owens, a question of fact. As with questions of fact, minds can differ. On the material before it the Tribunal could have found that the hypothesis was reasonable, but it was open to it to find to the contrary."

After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is not satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis is based is not present.
The Tribunal therefore cannot be satisfied beyond a reasonable doubt that there is no sufficient grounds for determining that the veteran's death was war-caused. The Tribunal therefore finds that the veteran's death was war-caused and that the applicant is entitled to receive a war widow's pension with effect from 12 December 1998.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed:         Robert Hayes
  Associate
Date of Hearing  9 August 2001
Date of Decision  7 September 2001
Counsel for the Applicant        Mr A Harding
Solicitor for the Applicant         Messrs Gilshenan and Luton
Solicitor for the Respondent    Mr B Williams, Departmental Advocate