MARGARET HAYNES and REPATRIATION COMMISSION
[2010] AATA 555
•26 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 555
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3715
VETERANS’ APPEALS DIVISION ) Re MARGARET HAYNES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S E Frost, Senior Member
Dr I Alexander, MemberDate26 July 2010
PlaceSydney
Decision The decision under review is set aside, and in substitution the Tribunal decides that the Applicant is entitled to the war widow’s pension, with a date of effect of 27 November 2005. ...................[sgd]...........................
S E Frost
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – widow’s pension – operational service – whether death related to service – kind of death – ischaemic heart disease – smoking habit – decision under review set aside
Veterans’ Entitlements Act 1986 ss 7, 8, 13, 120, 120A
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564
Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280
Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434
Re Haynes and Repatriation Commission [2009] AATA 521
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD 619
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383
Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581
Repatriation Commission v Hill [2009] FCA 270; (2009) 108 ALD 131
REASONS FOR DECISION
26 July 2010 Mr S E Frost, Senior Member
Dr I Alexander, MemberIntroduction
1. On 13 July 2009 this Tribunal, differently constituted, decided that Mrs Haynes was not entitled to a war widow’s pension.
2. Mrs Haynes appealed to the Federal Court against that decision, and on 18 November 2009 Graham J ordered, by consent, that the Tribunal’s decision be set aside and that the case be remitted to the Tribunal to be determined according to law.
Background to Mrs Haynes’ claim
3. Mrs Haynes’ husband, John Haynes (the veteran), served in the Australian Army between 21 January 1942 and 14 September 1945. That service constitutes operational service as defined by the Veterans’ Entitlements Act 1986 (the Act).
4. The veteran died on 4 October 2004, at the age of 81. Mrs Haynes lodged her claim for pension on 27 February 2006, and as a result the earliest date of effect for payment of pension if the Tribunal were to determine the claim in her favour would be 27 November 2005.
Entitlement to a war widow’s pension
5. If the veteran’s death was war-caused, then the Commonwealth is liable to pay a pension by way of compensation to Mrs Haynes[1]. The death will be taken to have been war-caused if it arose out of, or was attributable to, any eligible war service rendered by the veteran[2]. The veteran’s operational service is eligible war service[3].
[1] s 13(1) of the Act
[2] s 8(1)(b) of the Act
[3] s 7(1)(a) of the Act
The issues
6. We must determine whether the death was war-caused having regard to ss 120 and 120A of the Act. It is clear from those provisions that we must first determine the “kind of death” of the veteran before we consider the reasonableness of any hypothesis connecting the death with the circumstances of his war service. This is because the way in which we must test the reasonableness of any hypothesis depends on whether there is in force any Statement of Principles (SoP), determined by the Repatriation Medical Authority, in relation to the “kind of death” met by the veteran.
7. If there is a SoP, or more than one, then we must examine the hypothesis by reference to that SoP or those SoPs[4]. If, on the other hand, there is no SoP, then there is no relevant template against which the reasonableness of the hypothesis is to be considered because s 120A(3) does not apply. Instead, the question of causation would be determined under s 120(1) and (3) of the Act, and the application would be dealt with in the manner discussed in Byrnes v Repatriation Commission[5].
[4] s 120A(3) of the Act
[5] [1993] HCA 51; (1993) 177 CLR 564 at 571; see also Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383 at 386 [10]
8. This requirement that we first determine the “kind of death” that the veteran met is confirmed in Repatriation Commission v Hancock[6] and in Repatriation Commission v Codd[7].
[6] [2003] FCA 711; (2003) 37 AAR 383
[7] [2007] FCA 877; (2007) 95 ALD 619
The “kind of death” met by the veteran
9. The expression “kind of death” means medical cause of death[8]. There can be more than one medical cause of death[9]. In seeking to identify the medical cause of death, it is necessary to focus not on the terminal event or condition, but on the underlying cause of the death[10].
[8] Hill v Repatriation Commission [2009] FCAFC 91 at [25]; (2009) 177 FCR 434 at 439
[9] Hillv Repatriation Commission [2009] FCAFC 91 at [26]; (2009) 177 FCR 434 at 439
[10] Repatriation Commission v Hill [2009] FCA 270, per Cowdroy J at [52]-[53]; (2009) 108 ALD 131 at 141
10. The decision about the “kind of death” is made on the balance of probabilities[11]. It is not made by applying s 120 or s 120A of the Act or any SoPs, but is made independently of them[12]. In carrying out the enquiry, we should regard the death certificate as informative but not conclusive[13].
[11] Hill v Repatriation Commission [2009] FCAFC 91 at [20]; (2009) 177 FCR 434 at 438
[12] Collins v Repatriation Commission [2009] FCAFC 90, per Mansfield and Stone JJ at [47];(2009) 177 FCR 280 at 289; Hill v Repatriation Commission [2009] FCAFC 91 at [25]; (2009) 177 FCR 434 at 439
[13] Hill v Repatriation Commission [2009] FCAFC 91 at [65]; (2009) 177 FCR 434 at 445
11. The veteran’s death certificate records at Part 1, under “Cause of Death” and “Duration between onset and death”, the following matters[14]:
(a)Acute myocardial infarction – sudden
(b)Type II Diabetes – years
(c)Hypertension – years
[14] T10-38
12. The certificate explains that line (a) is to represent the “Disease or condition directly leading to death” and lines (b) to (e) the “Antecedent causes (morbid conditions, if any, giving rise to the abovementioned cause, stating the underlying condition last)”.
13. Apart from the death certificate, we have expert reports prepared by Dr Russell J Butler for Mrs Haynes, and by Professor Michael O’Rourke for the Commission. Both experts also gave oral evidence in the original Tribunal hearing.
14. Dr Butler said in his report, at page 4:
The death certificate attributes Mr Haynes’ death to an acute myocardial infarction of “sudden” duration, secondary to type 2 diabetes and hypertension, with cerebral vascular disease and chronic renal impairment as other significant conditions. I see no reason to question the accuracy of this certificate.
15. In oral evidence, Dr Butler said, in response to a question from Mrs Haynes’ counsel[15]:
MR VINCENT: So in terms of the part 1 of the death certificate, A, B and C represent a chain of events in effect going back in time?---Not necessarily a chain, in that the hypertension and the type II diabetes are not necessarily – the diabetes is not necessarily the consequence of the hypertension. Okay. These are co-existing conditions, rather than consequent conditions.
[15] Transcript (Tx) 46.45-47.2
16. He later confirmed to Mr O’Reilly, who appeared for the Commission in the original Tribunal hearing, that his report contained no other specific comment about the causes of the veteran’s death[16].
[16] Tx 50.11-12
17. Professor O’Rourke’s written report contained answers to specific questions put to him by the Commission’s representatives. It contained this:
1.Taking into account all of the material before you, and on the balance of probabilities, from what did Mr Haynes die? Is the death certificate an accurate reflection of the causes of death in this case?
Ans.I believe that the death certificate is an accurate reflection of the causes of death in this case. ...
...
7.Did [hypertension] play an integral part in Mr Haynes’ “kind of death”[?]
Ans.Yes, I believe that the hypertension contributed to Mr Haynes’ deterioration from the cardiac and cerebral point of view. I think it was an integral part of the heart failure and the presumed arrhythmia from which Mr Haynes died.
...
14.Did [diabetes] play an integral part in Mr Haynes’ “kind of death”?
Ans.The disease did I believe play an integral part in Mr Haynes’ “kind of death” predisposing to coronary atherosclerotic disease and to cerebral vascular damage causing the cerebral infarction.
18. In oral evidence, Professor O’Rourke said, in response to a question from the Commission’s advocate[17]:
MR O’REILLY: Could you tell the tribunal, please, what you say about – or elaborate for the tribunal, what you say was Mr Haynes’ kind of death?---Well, he was very elderly at the time. He was disabled before he had been transferred to the Mercy Home. ... He was disabled by previous cerebral vascular disease, and his troubles with his ischaemic heart disease as well, and that was predisposed to by hypertension and diabetes mellitus. ... He was found deceased and presumably from an arrhythmia and the death certificate put this down as myocardial infarction, which I think is quite reasonable; the myocardial infarction contributed to by hypertension and diabetes mellitus with other associated conditions, including cerebral vascular disease and renal disease.
[17] Tx 54.25-37
19. Later, in cross-examination, he said[18]:
MR VINCENT: Now, the three conditions which I’ve just been asking you about, being the ischaemic heart disease, the hypertension and the diabetes, have all been listed on the list of those part 1 conditions, namely those either being the underlying cause of death or resulting from it or being involved with it in some direct sense. You agree with that?---Yes.
[18] Tx 57.7-11
20. The Tribunal as originally constituted had this to say about the cause of the veteran’s death[19]:
Both medical experts accepted that each of the conditions referred to in Part 1 of the medical certificate, namely acute myocardial infarction, Type II diabetes and hypertension were causative of the veteran’s death ... It was accepted that acute myocardial infarction gives rise to the condition of ischaemic heart disease.
[19] Re Haynes and Repatriation Commission [2009] AATA 521 at [13]
21. Before us, on remittal, Mr Vincent for Mrs Haynes submits that we should similarly find that there were three causes of the veteran’s death, namely ischaemic heart disease, type 2 diabetes and hypertension. Ms Henderson for the respondent Commission, on the other hand, submits that it is open to us to find that there was only one cause of the veteran’s death, and that it was ischaemic heart disease.
22. We are not at all satisfied, after taking into account the written and oral evidence of the expert witnesses, that each of the three conditions specified in part 1 of the veteran’s death certificate amounts to a “kind of death” met by the veteran.
23. Since the original Tribunal hearing, the Full Federal Court has explained in Collins v Repatriation Commission[20] that only those conditions that play a real role in the pathological changes leading to death are properly to be regarded as “kinds of death”.
[20] [2009] FCAFC 90, at [84]; (2009) 177 FCR 280 at 296-297
24. Although Dr Butler saw “no reason to question the accuracy” of the death certificate, he noted that hypertension and diabetes were co-existing conditions, rather than forming a “chain” towards the veteran’s death.
25. Professor O’Rourke said that the hypertension “contributed” to the veteran’s deterioration, and that it and the diabetes both formed an “integral part” in the veteran’s death. That opinion was not further explored orally. His answer to the ambiguous question put to him about the death certificate[21] consists of the single word “yes”, and is just as likely to have meant that he agreed that the certifying doctor considered the three conditions to be “the underlying cause of death or resulting from it or being involved with it in some direct sense” as that he himself agreed with that proposition.
[21] [19] of these reasons
26. In summary, we consider that the opinions expressed by the experts about the medical cause of the veteran’s death were at best equivocal, but to the extent that the opinions were to the effect that hypertension and diabetes were causes of the veteran’s death, they are not supported by the evidence.
27. On the basis of the material before us, we find that there was only one “kind of death” met by the veteran, and that was death from ischaemic heart disease.
Was the veteran’s death war-caused?
28. We must now follow the process set out by the Full Federal Court in Repatriation Commission v Deledio[22].
Deledio step 1
[22] [1998] FCA 391; (1998) 83 FCR 82
29. The first step in the Deledio process[23] is this:
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.
[23] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97
30. In Repatriation Commission v Hill[24] a Full Court of the Federal Court said[25]:
As already noted, the authorities have made the position with regard to ss 120(3) and 120A(3) of the Act clear enough. In Repatriation Commission v Bey[26] (which did not involve s 120A(3)), the Full Court reiterated earlier observations in East v Repatriation Commission[27] and in Bushell v Repatriation Commission[28] when it said at 372-3:
“A ‘reasonable hypothesis’ involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at 533.
[24] [2002] FCAFC 192; (2002) 69 ALD 581
[25] [2002] FCAFC 192 at [54]; (2002) 69 ALD 581 at 596
[26] (1997) 79 FCR 364
[27] (1987) 16 FCR 517 (at 531-32)
[28] [1992] HCA 47; (1992) 175 CLR 408 (at 414)
31. Mrs Haynes says that the material raises several hypotheses connecting the veteran’s death with his military service. In simple terms the hypotheses have a war-caused smoking habit or a war-caused alcohol habit as their starting point. It is convenient to deal first with smoking.
The “smoking” hypotheses
32. The “smoking” hypotheses were put by Mr Vincent with considerable precision.
33. The first smoking hypothesis, and the one on which Mrs Haynes primarily relies, is that a war-caused smoking habit led to the veteran’s ischaemic heart disease and to his death from ischaemic heart disease, and in particular, that the veteran smoked at least 20 pack years of cigarettes (that is, a pack of cigarettes per day, every day for 20 years, or its equivalent) before the clinical onset of the ischaemic heart disease.
34. The second smoking hypothesis, put in the alternative, is that a war-caused smoking habit led to the veteran’s ischaemic heart disease and to his death from ischaemic heart disease, and in particular, that the veteran smoked at least five pack years but less than 20 pack years of cigarettes, and the clinical onset of ischaemic heart disease occurred within 15 years of the veteran’s ceasing to smoke.
35. The Commission submits that the first smoking hypothesis is not raised by the material. Before dealing with that submission we feel obliged to acknowledge the Full Court’s statement in Deledio that “no question of fact finding arises” at this first stage of the process, but also to note that that does not incorporate a prohibition against finding, as a fact, whether or not a hypothesis is raised by the material. What the Tribunal must not do at this first stage is undertake an enquiry as to the facts which are said to underpin the hypothesis. On the other hand, we must make a finding as to whether the hypothesis has been raised, so as to enable the later stages of the Deledio process to proceed. This approach is consistent with the judgment of the Full Federal Court in Repatriation Commission v Bey[29] and of the High Court in Byrnes v Repatriation Commission[30].
[29] [1997] FCA 1347; (1997) 79 FCR 364 at 366-367
[30] [1993] HCA 51; (1993) 177 CLR 564 at 571
36. The Commission submits that there is evidence of smoking from 1942 to 1945, and then again from 1959 to 1961. It submits that the material falls short of raising the hypothesis of 20 pack years of cigarette smoking.
37. The material which we think is relevant to this question is contained in [7] and [8] of Mrs Haynes’ witness statement, in which she said:
[7]My late husband told me that upon his return from his war service he smoked about a pack of cigarettes each day.
[8]When I met him again in 1959 he was smoking about a pack of cigarettes a day.
38. Mrs Haynes submits that we should infer from those paragraphs that Mrs Haynes has raised the hypothesis of an uninterrupted smoking habit from 1945 to 1959. In our view, that is a reasonable reading of those paragraphs. While we do not at this stage make a finding as to whether or not the veteran did in fact smoke continually during that period (for that would be impermissible), we are obliged to find, one way or the other, whether the hypothesis has been raised. We find that it has.
39. For completeness, we find that the material also raises the second smoking hypothesis.
Deledio step 2
40. The second step in the Deledio process[31] is this:
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.
[31] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97
41. There is a SoP in force, No. 89 of 2007. That SoP is amended by No. 43 of 2009, but those amendments are not relevant.
Deledio step 3
42. The third step in the Deledio process[32] is this:
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.
[32] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97
43. The first smoking hypothesis comprises these elements:
· that the veteran either commenced a smoking habit during his service period, or, if he had already developed a smoking habit before service, then that habit intensified during service; and
· that the veteran smoked at least 20 pack years of cigarettes or equivalent before the clinical onset of ischaemic heart disease.
44. Those elements fit the template in SoP No. 89 of 2007 (and specifically clauses 5 and 6(g)(iii) of the SoP). The hypothesis is therefore a reasonable one.
45. The second smoking hypothesis (put in the alternative to the first) comprises these elements:
· that the veteran either commenced a smoking habit during his service period, or, if he had already developed a smoking habit before service, then that habit intensified during service; and
· that the veteran smoked at least five pack years but less than 20 pack years of cigarettes or equivalent and the clinical onset of ischaemic heart disease occurred within 15 years of the veteran’s ceasing to smoke.
46. Those elements fit the template in SoP No. 89 of 2007 (and specifically clauses 5 and 6(g)(ii) of the SoP). The hypothesis is therefore a reasonable one.
Deledio step 4
47. The fourth and final step in the Deledio process[33] is this:
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.
[33] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97-98
48. The question now is whether we are satisfied beyond reasonable doubt that the veteran’s death was not war-caused.
49. Mrs Haynes’ evidence is that the veteran’s father caught the veteran smoking, at home, at the age of 16. His father had previously lost a business through fire and was very upset about the veteran smoking in the bedroom. His father told him to stop smoking, and apparently he did.
50. In her written statement, Mrs Haynes said[34]:
My late husband told me that he took up smoking upon joining the AIF as he was provided with an issue of cigarettes and there was peer pressure to smoke. He also told me that he smoked to gain comfort as he experienced distress and anxiety during his service in the AIF in New Guinea. In particular he was extremely troubled by the fact that his camp was on an old Japanese Cemetery which was infested with rats.
[34] At [5]
51. Mrs Haynes also said that the veteran stopped smoking at home in 1961 when the couple lost a child, but he told her that “he continued to smoke when at work or when he was out socialising”[35].
[35] At [11]
52. He eventually stopped smoking in 1985, according to Mrs Haynes, after he suffered a stroke. She said that he told her that “he continued to smoke about a pack of cigarettes a day up until he stopped smoking in June 1985”[36].
[36] At [12]
53. The Departmental medical records paint a somewhat different picture. A Medical History Sheet dated July 1972 states “Smoking – nil”[37] and a report dated 1 September 1986 (the year after the veteran’s stroke) says in relation to “tobacco”[38]:
·Age stopped if applicable: 8 yrs ago
·Variations in consumption: Only mild smoker at any time 1-2 day
[37] T5-16
[38] T7-23
54. “Mild breathlessness” and “occasional cough” were also reported at the time.
55. In relation to the tobacco consumption information just referred to, Mrs Haynes noted in a “smoking questionnaire”[39], dated 21 February 2006 and submitted with her pension claim:
Please note information my husband gave to the DVA Dr was shortly after a stroke (CVA). He stopped smoking because of the stroke, in 1985.
[39] T10-42
56. Her oral evidence included the following:
· she assumed that the veteran continued to smoke after 1961 (when he stopped smoking at home) because she would find packets of cigarettes in his pocket[40];
· the veteran continued to smoke intermittently after 1980[41];
· his clothes smelt of smoke after 1980[42];
· he gave up smoking in 1985, after his stroke, because “he was directed to by the geriatric doctor”[43];
· he “had an outburst” with that doctor[44] because he thought “she didn’t know what she was talking about”[45];
· nevertheless, the veteran told an RSL advocate, after suffering the stroke in 1985, that he had never smoked[46];
· Mrs Haynes was “a bit surprised”[47] when her husband said that to the RSL advocate, and when she asked him why he had said that, he said: “Oh, well, things have altered, I’m not smoking now”[48] and that “he decided that he was going to accept this new lifestyle”[49].
[40] Tx 40.27-32; Tx 41.14-15
[41] Tx 40.43
[42] Tx 41.1-5
[43] Tx 22.7-14
[44] Tx 22.16
[45] Tx 22.21-22
[46] Tx 22.46-23.4
[47] Tx 23.8
[48] Tx 23.17-18
[49] Tx 23.24
57. On balance, we consider the statements in the medical records, to the effect that the veteran was either a non-smoker or a mild smoker, to be less reliable than Mrs Haynes’ evidence of a much more extensive smoking history. According to Mrs Haynes, her husband was not truthful in his statement to the RSL advocate around 1985, and against that background we view the medical records with some scepticism.
58. We accept, on the basis of the material referred to at [49] and [50] of these reasons, that the veteran commenced his smoking habit during his war service.
59. We also accept that the veteran smoked around a pack of cigarettes per day between 1942 and 1961 (that is, an uninterrupted period of 19 years) and then, from 1961 until his cessation in 1985, at a sufficient level to reach 20 pack years prior to the clinical onset of ischaemic heart disease (which, according to Dr Butler, was in 1993, and according to Professor O’Rourke, in 2001).
60. It follows that we are not satisfied beyond reasonable doubt that the veteran’s death was not war-caused.
61. On the basis of our conclusions, it is unnecessary to consider the second smoking hypothesis, and it is also unnecessary to examine the alternative alcohol-based hypotheses.
Decision
62. The Commonwealth is liable to pay Mrs Haynes the pension she has claimed.
63. The decision under review is therefore set aside, and the Tribunal decides instead that Mrs Haynes is entitled to the war widow’s pension, with a date of effect of 27 November 2005.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member S E Frost and Dr I Alexander, Member
Signed: .............[sgd]...................................................................
AssociateDate of Hearing 7 June 2010
Date of Decision 26 July 2010
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Kemp & Co. Lawyers
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Australian Government Solicitor
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