MARGARET HAYNES and REPATRIATION COMMISSION
[2009] AATA 521
•13 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 521
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3715
VETERANS' APPEALS DIVISION ) Re MARGARET HAYNES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Dr S H Toh (Part-Time Member)Date13 July 2009
PlaceSydney
Decision The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Senior Member
CATCHWORDS
Veterans' Entitlements - widow's claim for pension - kind of death - whether causes of death acute myocardial infarction, type II diabetes and hypertension were war-caused - operational service - Tribunal satisfied beyond reasonable doubt that late veteran's smoking habit and alcohol consumption were not related to service - decision under review affirmed
Veterans' Entitlement Act 1986 ss 8, 13(1), 119(2), 120(1) (3),(4), 196B(2)
Statements of Principles
Re Brown and Repatriation Commission [2003] AATA 1010
Fitzgerald v Penn (1954) 91 CLR 268
Collins v Repatriation Commission (2008) FCA 1982
Repatriation Commission v Hancock (2003) FCA 711
Fogarty v Repatriation Commission (2003) FCAFC 136
Benjamin v Repatriation Commission (20201) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) HCA 57
Kattenberg v Repatriation Commission [2002] FCA 412
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (20201) FCA 1832
Repatriation Commission v McKenna (1998) 28 AAR 7
Re Muriel Lonergan and Repatriation Commission [2007] AATA 1924
Tuite v Repatriation Commission (1993) 39 FCR 540
REASONS FOR DECISION
13 July 2009 Ms A F Cunningham (Senior Member)
Dr S H Toh (Part-Time Member)1. The applicant, Margaret Haynes, made a claim for pension based on the death of her husband, John Haynes (the veteran) as being related to his service with the Australian Army. Mrs Haynes' claim for pension was refused by a Delegate of the Repatriation Commission on the basis that the veteran's death was not war-caused which decision was affirmed by the Veterans' Review Board on 3 July 2007. Mrs Haynes now seeks a review of the Repatriation Commission's decision by the Tribunal.
Agreed Preconditions
2. There was no dispute that the veteran served in the Australian Army between 21 January 1942 and 14 September 1945 which constitutes operational service as defined by the Veterans' Entitlements Act 1986 (the VE Act). Further that Mrs Haynes was the wife of the veteran who died on 4 October 2004. As Mrs Haynes' claim for pension was lodged on 27 February 2006, the earliest date of effect for payment of pension on the basis that the Tribunal determines that the veteran's death was war-caused, would be 27 November 2005. There was also no dispute between the parties that the medical certificate correctly records the cause of the veteran's death in Part 1 - conditions leading directly to death being acute myocardial infarction, Type II diabetes, hypertension and (L) CVA and chronic renal impairment.
The Legislation
3. Mrs Haynes' claim for pension was made pursuant to section 13(1) of the VE Act which states that if the death of a veteran was war-caused the Commonwealth is liable to pay pension to a dependant of the veteran.
4. A war-caused death is defined in section 8 of the VE Act. The relevant provision in this case is sub-paragraph (b) which reads:
"the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran".
5. The standard of proof is that prescribed in section 120 of the VE Act.
6. In paragraph 2 above, the Tribunal has referred to the necessary pre-conditions for the claim. On the basis of the material contained in the documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T Documents), in accordance with section 120(4) the Tribunal can be reasonably satisfied as to these matters.
Kind of Death
7. The next issue for determination is what was the "kind of death", that is the condition(s) from which the veteran was suffering that contributed to his death. The veteran's "kind of death" has been defined as "the real or operative cause of death as opposed to the final stage of the process of dying" (Re Brown and Repatriation Commission [2003] AATA 1010 at para 6). The Tribunal in that decision referred to the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276 which said that the Tribunal must ascertain whether a particular illness or disease could fairly and properly be considered the cause of death. Emmett J in Collins v Repatriation Commission (2008) FCA 1982 said at para 21 that:
"The question of the kind of death met by a veteran is a question of medical causation of the death, although that might include contributing or underlying causes in a sense to which I have already referred".
8. His Honour also recognised at paragraph 19 that there may be multiple medical conditions which cause a particular death and it is therefore necessary to consider all of the conditions for the purposes of determining whether a relevant Statement of Principles is applicable. His Honour further stated:
"If one of the multiple medical conditions is a cause of death and that condition was itself caused by war service, then that may be sufficient to establish an entitlement to a pension (see Repatriation Commission v Hancock (2003) FCA 711 at 8)".
9. In Re Hancock the primary medical condition that caused the veteran's death was stated on the death certificate as small bowel adenocarcinoma. The evidence of the medical practitioner was that there may have been another medical cause being osteoarthritis of both knees that expedited the veteran's death. As Selway J stated at paragraph 8:
"It was necessary that both of these be considered. If one of these medical causes of death ("or kinds of death" to use the phrase in s120A(2)(4) of the Act) was itself caused by war-service then this would be sufficient to establish an entitlement to a pension. So much is clear from the terms of s9 of the Act (eg "was attributable to"): see Repatriation Commission v Law (1980) 31 ALR 140 at 151 and see O'Loughlin J in Doolette v Repatriation Commission (1990) 21 ALD 489 at 492".
10. Identification of the kind of death is determined on the balance of probabilities in accordance with section 120(4) of the VE Act (see Fogarty v Repatriation Commission (2003) FCAFC 136 at 34; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 53-54).
11. His Honour in Re Hancock outlined the approach that he considered should have been adopted by the Tribunal in that case at paragraph 11 as follows:
"A. First, the Tribunal was required to determine, on the balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.
B. Next, the Tribunal was required to determine on the balance of probabilities what "kind of death" Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SOPs and/or determinations under s180A(2) of the Act and any other "kinds of death" which were applicable to that death.
C. If one or more SOPs were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death".
D. If only a determination under s180A(2) is applicable, then the application must fail.
E. If no SOP and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that".
12. Evidence was given by Russell J Butler, Consultant Physician on behalf of the applicant and Michael E O'Rourke AM, Professor of Medicine at the University of NSW. Neither medical experts had treated the veteran but based their reports and evidence on an examination of the appeal documents, relevant clinical notes and medical reports. Both medical experts accepted that the death certificate was an accurate reflection of the veteran's causes of death. It was submitted by Mark Vincent, counsel for the applicant that it is also open to the Tribunal on the evidence presented to accept that cardiovascular disease (CVA) which is listed on the death certificate as a Part 2 condition was a contributing cause of death.
13. 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 and capable of being linked to his war service. Whilst Professor O'Rourke disputed that there was sufficient evidence linking the conditions with the veteran's service, he conceded that each condition has the potential of being linked to service. It was accepted that acute myocardial infarction gives rise to the condition of ischaemic heart disease.
14. The hypothesis raised can be summarised as follows: that the veteran's death was caused by his ischaemic heart disease, hypertension and/or diabetes which conditions were attributable to the veteran's smoking habit and/or his alcohol consumption which arose out of or were attributable to his operational service.
Standard of Proof
15. The veteran performed operational service in New Guinea during World War 2 and accordingly pursuant to section 120(1) of the VE Act the Tribunal is required to determine that the veteran's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for so determining. Pursuant to section 120(3) the Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death was war-caused if after a consideration of the whole of the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of service.
16. As Mrs Haynes' claim was lodged after 1 June 1994, the provisions of section 120A are relevant. Sub-section 3 states that a hypothesis can only be considered reasonable if there is a Statement of Principles in place that upholds the hypothesis.
17. It was accepted that the relevant Statements of Principles determined pursuant to sub-section 196B referrable to the veteran's kinds of death are as follows: Ischaemic Heart Disease - No 89 of 2007, Diabetes Mellitus - No 11 of 2004, Hypertension - No 11 of 2008 and No 3 of 2004. On behalf of the applicant it was also contended that the Statements of Principles relating to Cerebrovascular Accident, namely No 51 of 2006 and No 52 of 1999 should be considered.
18. The leading case that has set out the process that should be followed in application of sections 120(1) to 120(3) of the VE Act is the Full Court decision in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 and as follows:
"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved".
19. In accordance with the third step of the Deledio process the Tribunal must form an opinion whether the hypothesis raised is a reasonable one. That is, whether it is consistent with the template of the SOP. In accordance with section 196B(2) the SOP sets out the factors that must as a minimum exist and which of those factors are related to service before it can be said that a reasonable hypothesis has been raised connecting the death with the circumstances of service.
20. The factors that were submitted by the applicant as being relevant are as follows:
Ischaemic Heart Disease No 89 of 2007
6(a) having hypertension before the clinical onset of ischaemic heart disease; or
(b) having diabetes mellitus before the clinical onset of ischaemic heart disease; or
(g) where smoking has ceased prior to the clinical onset of ischaemic heart disease:
(i) smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of smoking cessation; or
(ii) smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of smoking cessation; or
(iii) smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease
Diabetes Mellitus No 11 of 2004
5(c) in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation
Hypertension No 11 of 2008
2(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
Hypertension No 3 of 2004
1A(b) consuming an average of at least 200 grams per week of alcohol
for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol
Cerebrovascular Accident No 51 of 2006
6(a) having hypertension at the time of the clinical onset of cerebrovascular accident; or
(f) drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident
(o) for cerebral ischaemia only,
(i) where smoking has not ceased before the clinical onset of cerebrovascular accident
(A) smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of cerebrovascular accident;
(B) smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of cerebrovascular accident
Cerebrovascular Accident No 52 of 1999
5(a) the presence of hypertension before the clinical onset of cerebrovascular accident;
(e) regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident;
(k) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 15 years of cessation
The Evidence
21. Dr Butler considered that the onset of the veteran's hypertension and type 2 diabetes occurred around the time when he was admitted to the Royal North Shore Hospital on 30 June 1985. An echocardiogram performed in July 1985 showed a bicuspid aortic valve with early concentric left ventricular hypertrophy. Professor O'Rourke considered that the onset of hypertension was sometime between 1980 and 1985 when the stroke occurred. Professor O'Rourke opined that the veteran most likely had elevated blood pressure prior to sustaining the stroke but noted that his blood pressure readings in 1980 were within the normal range. It was probable therefore that the onset of hypertension occurred closer to 1985. It was Professor O'Rourke's evidence that the hypertension contributed to the veteran's deterioration "from the cardiac and cerebral point of view" and was an integral part of the heart failure from which he died.
22. Professor O'Rourke also opined that the clinical onset of diabetes occurred around 1985 when the veteran was admitted with cerebral vascular accident to the Royal North Shore Hospital. He opined that this disease played an integral part in the veteran's kind of death predisposing him to coronary atherosclerotic disease and to cerebral vascular damage causing cerebral infarction.
23. Whilst Professor O'Rourke considered that these diseases contributed to the veteran's kind of death he believed they were related to factors such as hereditary predisposition, age, male sex and weight gain rather than the factors listed in the SOP.
24. With respect to CVA, it was Professor O'Rourke's opinion that whilst it may have caused an impairment from which the veteran never fully recovered, it was not necessarily causative of death. Professor O'Rourke noted the initial CVA incident occurred in 1985, some twenty years before the veteran's death which he believed would have occurred around the same time irrespective of the CVA.
25. Dr Butler was unable to say whether the CVA actually contributed to the veteran's death due to the lack of detail available. It was Dr Butler's evidence that the clinical notes indicate that the clinical onset of the veteran's diabetes and hypertension occurred about the time when Mr Haynes was admitted to the Royal North Shore Hospital in June 1985. He said that the history of the myocardial infarction is less clear but suggested that the echocardiogram recorded on 24 February 1993 showed hypokinesis of the left ventricle which is consistent with ischaemic damage.
26. With respect to the issues which are alleged by the applicant to be causative of the veteran's kinds of death, Dr Butler commented in his written report that there is some uncertainty about the veteran's alcohol consumption and difficulties concerning his smoking habits. Dr Butler said that the clinical notes indicate that the veteran had repeatedly claimed a modest intake of alcohol but that Mrs Haynes paints an entirely different picture by suggesting that his alcohol intake was fairly regular, moderate to high. Dr Butler noted that two entries in the hospital notes tend to reinforce Mrs Haynes' view, one being on 8 December 1987, when the veteran was admitted to hospital for acute urinary retention where it is recorded that the veteran "had been drinking all day in RSL" and on 7 March 1993, after he had suffered severe septic complications and renal failure, it was stated that he "wants a beer".
27.
There are other references in the medical notes contained in the
T Documents to the veteran's alcohol consumption. In the Repatriation Medical History Sheet signed by the veteran on 21 July 1972, it is recorded that he averaged one schooner of beer per month. In a Veterans' Affairs Entitlement Medical Report dated 1 September 1986, it is stated "beer drinker - moderate".
28. With respect to the veteran's smoking habit Dr Butler stated in the same report "it would seem reasonable to accept a tobacco consumption exceeding 20 pack years of cigarettes with cessation in 1978 or 1985. It seems very unlikely that his consumption would have been less than five pack years". Dr Butler seems to have based his conclusion on Mrs Haynes' statement that when she met the veteran he was smoking a packet of cigarettes per day. Dr Butler also referred to the medical history contained in the T Documents including several reviews by departmental officers in 1968 and 1972 when the veteran claimed to not be smoking. In a medical history sheet dated 21 March 1968 (T4), under the heading, smoking - the word nil is written. Again in a subsequent history sheet completed on 21 July 1972 it is recorded, smoking - nil. In the September 1986 report under the heading, tobacco the following is stated:
Age started - aged 16.
Aged stopped if applicable - eight years ago.
Variations in consumption - only mild smoker at any time 1 to 2 day no increase.
29. Dr Butler suggested that perhaps Mr Haynes had under-reported his tobacco intake as well as his alcohol consumption.
30. In the Smoking Questionnaire signed by Mrs Haynes on 21 February 2006, in answer to the question in what year did the veteran take up smoking she stated: "from DVA files at 16" further that this was before service and in response why did the veteran take up smoking she responded "I presume he increased the amount of cigarettes he smoked during service due to availability and conditions of service". In the form it is stated that the veteran's smoking habit ceased in 1985 which was shortly after his stroke. Mrs Haynes states "I cannot say how many he smoked".
31. Further comments that Mrs Haynes offers with respect to the veteran's smoking habit are:
"My husband's unit was camped on a Japanese burial area in New Guinea infected by rats. He picked up a fungus in his eyes on service and regularly drank a lot of alcohol (beer) and smoked to get rid of the pain. He always visited the pub on the way home from work and would drink and smoke. I cannot say how many he smoked".
32. In her oral evidence to the Tribunal Mrs Haynes recalled a meeting between the veteran and an RSL advocate regarding the veteran's claim during which he told the advocate that he had never smoked. Whilst Mrs Haynes did not comment, she said that she was surprised because the veteran's clothing used to smell of smoke when he came home. She recalled that this meeting took place around the time when the veteran had suffered his stroke.
33. Mrs Haynes believed that the veteran had smoked up until this time and had on occasions observed a packet of cigarettes in his pocket. She confirmed that he did not smoke at home after the death of their child in 1961 and was unable to say how much he smoked after that time.
34. Mrs Haynes' evidence with respect to the veteran's smoking habits was not clear and at times inconsistent. In answer to questions from Dr Tho, Mrs Haynes said that she had not seen her husband smoke outside the home after 1961, but she presumed he was still smoking "one or two on the side". However during re-examination when asked whether her husband had smoked during lunches at the Mandarin Club, Mrs Haynes answered that he didn't have a lot of time and when pressed, answered "once in a while, perhaps two". Mrs Haynes said that she used to meet her husband for lunch at the Club every two or three months. The Tribunal was unable to give much weight to Mrs Haynes' evidence regarding the veteran's smoking habits as it is largely unconvincing and as she conceded, she really could not say how much the veteran smoked.
35. Mrs Haynes' evidence however regarding the veteran's alcohol consumption is fairly consistent and more convincing. She said that the veteran had told her that he did not drink alcohol before he joined the army and started drinking upon enlistment as the other men had encouraged him to drink and he felt peer pressure to join them. Mrs Haynes went on to state in her written statement that over the years her late husband gradually increased his alcohol consumption and that she firmly believed that he would significantly underestimate the amount he drank.
36. There is a gap however of some fourteen years from the time when the veteran completed his service until he met Mrs Haynes in 1959. During their marriage Mrs Haynes described a regular pattern whereby the veteran would stop at his club on his way home from work on four nights in each week, generally returning home by 7.30 pm. Once home he would generally consume a couple of cans of beer with dinner and further beers after dinner. On one night during the week he would visit his club for a swim and a few beers, not returning home until around midnight. During the weekends he would visit his club on a Sunday. Sometimes he would leave around 1.00 pm and not return home from the club until 7.00 pm. Mrs Haynes said that she could tell that the veteran had been drinking when he got home by his manner and the fact that he smelt of alcohol. He was not very sensible, was often argumentative and sometimes lost his balance.
37. Mrs Haynes recalled that the veteran was known by the name 'Buckets' at the club because of his alcohol consumption. Mrs Haynes considered that the veteran had been a heavy drinker from the early years of their marriage and that his alcohol consumption pattern did not change until after his stroke in 1985. He was then advised to reduce his consumption to two cans per day and lost 30 kilos of weight. Mrs Haynes observed that the veteran did reduce his alcohol consumption to this limit following his stroke.
Ischaemic Heart Disease
38. There were three factors submitted as being relevant under the SOP, namely hypertension, diabetes and smoking. The actual date of clinical onset of the ischaemic heart disease is not clear on the evidence. Dr Butler suggested that it may have occurred in or around 1993. On that basis paragraph (g)(i) of factor 6 is not applicable. Sub-paragraph (ii) refers to smoking at least five pack years within fifteen years of the clinical onset. A pack year is defined as twenty tailor made cigarettes per day of a period of one calendar year or 7,300 cigarettes.
39. There was no evidence upon which the Tribunal could find that the veteran was at any time smoking twenty cigarettes per day for a period of one calendar year. Mrs Haynes was unable to inform the Tribunal as to the veteran's smoking consumption and her evidence was largely based on a presumption that he was smoking because when he returned home his clothes smelt of smoke. Initially Mrs Haynes said that she had not observed him smoke since 1961. In re-examination however, Mrs Haynes said that on occasions in later years she had seen the veteran smoke one or two cigarettes over lunch at the Mandarin Club.
40. Mr Vincent suggested that the Tribunal could nevertheless find this SOP factor satisfied on the basis of calculating the consumption of 7,300 cigarettes over the relevant period. He contended that there is evidence that the veteran was smoking from 1942 to 1985, a period of 43 years. Mr Vincent submitted that the veteran potentially meets this SOP factor if 7,300 cigarettes per year is multiplied by five (years) which figure is then divided by 43 representing the number of years over which the veteran smoked and multiplied by 365 which gives a daily average of 2.32 cigarettes per day. Mr Vincent referred the Tribunal to page 23 of the T Documents which he submitted contained the veteran's own evidence that he was a mild smoker at any time of between one and two cigarettes per day with no increase. This document also records that the veteran commenced smoking at the age of 16 and ceased eight years previously which was 1978.
41. On the same basis Mr Vincent contended that factor 6(g)(3), smoking at least 20 pack years of cigarettes before the clinical onset of the disease is also raised. Using the same calculation method, an average of 9.3 cigarettes per day would need to be satisfied. There is no evidence that the veteran smoked this quantity of cigarettes at any time prior to the onset of the disease.
42. It is submitted that the Tribunal cannot be satisfied beyond reasonable doubt that the veteran was not smoking an average of 2.3 cigarettes per day and therefore the SOP is satisfied. There is insufficient and essentially an absence of evidence to satisfy the Tribunal that the veteran had at any time smoked twenty cigarettes a day for a period of a year. Nor is there evidence that the veteran was smoking an average of 2.32 cigarettes per day for 43 years. The two issues that arise for the Tribunal are whether the Tribunal could be satisfied beyond reasonable doubt as to this and further whether the veteran's smoking habit arose out of, or was attributable to his service as required by section 8. The only evidence regarding a connection between the veteran's smoking and his service is from Mrs Haynes who has relayed what she recalls being told by the veteran many years ago. There is no direct evidence before the Tribunal regarding the circumstances in which the veteran commenced and maintained his smoking habit. There are medical reports which have been referred to above. They appear to be contemporaneous records of what the veteran had stated his smoking consumption to be from time to time.
43. As to the commencement of the veteran's smoking habit, Mrs Haynes said that she understood from what the veteran had told her that he was caught smoking by his father at the age of 16 and did not smoke after that time. Mrs Haynes' evidence on this point is inconsistent with the medical report in which it is stated that the veteran commenced smoking at 16. It was Mrs Haynes' evidence that her late husband had told her 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. She also said that he had told her 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. Mrs Haynes stated in her proof of evidence that when she first met the veteran in 1959, he was smoking about a packet of cigarettes a day. Yet from 1961 Mrs Haynes said that the veteran did not smoke at home and that she rarely observed him smoking. From 1961 there is some evidence that the veteran was at the most smoking one to two cigarettes per day and ceased smoking around 1978.
44. The connection between a smoking habit and the veteran's service must be causal and not simply temporal, that is, merely the circumstances in which the cause operated (Repatriation Commission v Law (1981) HCA 57). It is accepted that the causal connection need not be the sole or dominant or even prominent cause of the disease but can be merely a contributory cause in order to establish the requisite connection between service and the veteran's smoking habit. (Repatriation Commission v Law (1980) 31 ALR 140)
45. The only evidence as to a connection between the veteran's smoking and his service is from Mrs Haynes in the form of what she was told by the veteran. Whilst the Tribunal accepts that a veteran may experience stressful and anxious circumstances during periods of operational service, there is no evidence of such circumstances in this case. The applicant is unfortunately disadvantaged as she is not able to give any detailed account regarding the circumstances of the veteran's operational service, presumably because he chose not to discuss them with her. It is not unusual for veterans to be reluctant to speak about the circumstances of their service with their family. Much of Mrs Haynes' evidence is based on her presumption of circumstances which occurred many years ago. Mrs Haynes has no first hand knowledge of the veteran's smoking or drinking habits until she met him in 1959. Prior to that she was only able to give evidence what the veteran had told her regarding his service. There is no evidence at all relating to the period from when the veteran completed his period of service until he met Mrs Haynes in 1959.
46. Paragraph 5 of the SOP states that at least one of the factors set out in Clause 6 must be related to the relevant service rendered by the person. Thus satisfaction of the factor itself is not sufficient unless there is a causal connection with service. Paragraph 6 is prefaced with the statement "the factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease, or death from ischaemic heart disease with the circumstances of the persons relevant service ...".
47. In Kattenberg v Repatriation Commission [2002] FCA 412, Emmett J referred to the relationship between the SOPs and the requirements of the VE Act and said at paragraph 42 and 43:
"42 An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that "factors must be related to any relevant service". That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
43 Thus, smoking at least thirty pack years of cigarettes will be related to relevant service rendered by a veteran (see para [9] above), if the smoking of that quantity of cigarettes:
* arose out of, or was attributable to, that service;
* was contributed to in a material degree by, or was aggravated by, that service; or
* would not have occurred but for the rendering of that service by the person.
Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran's service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service".
48. Whilst the Tribunal has determined that the material has raised a hypothesis the question remains as to whether the hypothesis is a reasonable one. As the Court stated in East v Repatriation Commission (1987) 16 FCR 517:
"A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is hypothesis pointed to by the facts, even though not proved upon the balance of probabilities".
49. The Federal Court stated in Bull v Repatriation Commission (2001) FCA 1832 at paragraph 38:
"An hypothesis is a proposition made as a basis for reasoning or a supposition made as a starting point for further investigation from known facts. It is one connecting the death with service".
50. Whilst the material before the Tribunal has raised the hypothesis, it is for the decision-maker to determine whether it is reasonable. As Goldberg J said in Repatriation Commission v McKenna (1998) 28 AAR 7 at 15-16:
"For the purposes of s120(A)(3) of the Act the hypothesis which has to be upheld by the Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principle".
51. On the material presented, the Tribunal considers any connection between the veteran's smoking habit, such as it was, and his service is tenuous and too remote to be considered reasonable. There is no evidence as to circumstances of the veteran's service that were stressful to cause him to take up smoking. As the Full Court stated in Tuite v Repatriation Commission (1993) 39 FCR 540, what is required is "something within the applicant's military service which has caused him to start smoking". Being provided with a regular issue of cigarettes and being surrounded by servicemen who smoke, is considered a temporal rather than a causative connection, being merely the setting in which a veteran may commence smoking. Nor does the Tribunal accept that being camped on the site of an old Japanese war cemetery without further detail establishes a causative connection.
52. The Federal Court in Kattenberg v Repatriation Commission (supra) said that the Tribunal should be satisfied that smoking the requisite number of cigarettes as specified in the SOP was contributed to in a material degree by the service or that it would not have occurred for the rendering of that service. There is no evidence in the present case upon which the Tribunal could be so satisfied.
53. Whether the hypothesis is reasonable is a question of fact. The evidence does not support a finding that the veteran's smoking habit was connected with the circumstances of his service. The Tribunal is satisfied beyond reasonable doubt that there is no sufficient basis to connect the veteran's smoking habit with his service in that the requisite elements of the SOP are not satisfied.
54. The other factors referred to in the SOP for ischaemic heart disease are hypertension and diabetes which will be considered under the following headings.
Diabetes
55. The SOP factor relied on is that the veteran was smoking at least ten pack years of cigarettes or the equivalent thereof up to ten years prior to the clinical onset of his diabetes.
56. As outlined above the Tribunal is unable to conclude that the material supported the SOP factor for ischaemic heart disease, being smoking at least one pack year of cigarettes or the equivalent thereof. As the factor for diabetes refers to a higher smoking consumption, namely ten pack years, for the same reasons the Tribunal is satisfied beyond reasonable doubt that this factor is not made out. Nor does the evidence raise a connection between the veteran's smoking habit and his service as required by factor 4.
Hypertension
57. The SOP factor relied on relates to the veteran's alcohol consumption.
58. The most current SOP is Number 11 of 2008 which amends two previous Instruments. It refers to a consumption of 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. The applicant however has accrued rights to any previous SOP's that contain more beneficial provisions. In the present case to those amended by the current SOP which refer to an alcohol consumption of 200 grams per week. (No 3 of 2004)
59. The Tribunal accepts the evidence of Dr Butler that the onset of hypertension occurred sometime between 1980 and 1985. The Tribunal accepts the evidence of Mrs Haynes that the veteran had developed a fairly consistent pattern of alcohol consumption throughout the period of their marriage and was a relatively heavy drinker up until the time when he suffered the stroke in 1985. It was Mrs Haynes' evidence, which the Tribunal accepts, that the veteran would return home in the evenings at about 7.30 pm smelling of alcohol and exhibiting patterns of behaviour suggesting that he had been drinking. He then generally consumed a couple of cans of beer both prior to and following dinner. It was her evidence that the veteran consumed several cans of beer at home every evening after work. Mrs Haynes' evidence regarding the veteran's drinking habits during the weekends is also accepted.
60. The relevant SOP referring to 200 grams of alcohol per week translates to approximately 2.86 standard drinks per day. Whilst there is some inconsistency in the medical notes regarding the veteran's alcohol consumption, the Tribunal accepts that he may have underestimated his alcohol consumption to the medical practitioners. It was Mrs Haynes' evidence that the veteran had a drinking habit when they were married. In her statement of evidence she says that he had told her that he did not drink alcohol before he joined the army and commenced drinking because the other men had encouraged him to drink and he felt peer pressure to join them.
61. Whilst the Tribunal can be reasonably satisfied as to the veteran's alcohol consumption in the period prior to the clinical onset of hypertension, it must also be satisfied in relation to paragraph (4) which requires that the alcohol consumption be related to relevant service. That is, did the veteran's alcohol consumption arise out of or was it attributable to his period of service as required by section 8 to constitute a war-caused death. Mrs Haynes' evidence is based on her observations of the veteran from the time they met in 1959 and from what the veteran had told her. There is no direct evidence regarding the veteran's period of service and the circumstances in which he said he started drinking alcohol. There is no evidence regarding the veteran's alcohol consumption following his retirement from the army until he met Mrs Haynes in 1959, a period of 14 years. Despite the provisions of section 119(2) of the VE Act which require account to be taken of the difficulties in ascertaining the existence of any facts or circumstances due to the passage of time, availability of witnesses, absence or deficiency of relevant records, the Tribunal is not entitled to draw conclusions which are not supported by the material before it.
62. As stated by the Tribunal in Re Muriel Lonergan and Repatriation Commission [2007] AATA 1924 at paragraph 36:
"36. However, subsection 119(1)(h) may not be used to invent evidence which may serve to establish the necessary connection between an injury and war service: Mason v Repatriation Commission [2000] FCA 1409 per Weinberg J.
37. Nor does subsection 119(1)(h)) authorise or require a decision-maker to ignore the evidence before it and decide the case on the basis of quite different evidence: per Weinberg J in Mason v Repatriation Commission.
38. The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where four judges of a five-judge Court said at 373-4:
‘...in order for the hypothesis advanced ... to be reasonable, there must be material pointing to a connection between [the] disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). ...Paragraph (h) of s 119(1) is a provision of the same character as paragraph (g)...par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions.’
39. The decision of LJ Wright in Caswell v. Powell Duffryn Associated Collieries (1939) All ER 722 at 733 is particularly relevant with respect to understanding the common law evidentiary requirements that apply to “inferences”: -
"There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish... But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture."
63. This approach is consistent with that adopted by the Federal Court in East v Repatriation Commission (supra) and its dicta as to the reasonableness of a hypothesis being that it must be more than a possibility, consistent with known facts and not fanciful or unreal or too tenuous or remote. There is in effect no evidence upon which the Tribunal can conclude that the veteran's alcohol habit was connected to his service. Mrs Haynes' claim that he started drinking upon enlistment because the other men had encouraged him to drink is merely temporal. It does not found a causal connection, that is where the circumstances of the veteran's service caused him to commence drinking. In her affidavit Mrs Haynes referred to skin damage suffered by the veteran as a result of his war service which caused disfiguration and upset to the veteran. She went on to state that she believed that the veteran's alcohol consumption was in part a response to this distress. However Mrs Haynes' belief is not in the Tribunal's view sufficient to sustain a connection between a circumstance of the veteran's service and his alcohol consumption.
64. The Tribunal is accordingly satisfied beyond reasonable doubt that there is no connection between the veteran's alcohol consumption and his war service.
Cerebrovascular accident
65. This condition is raised by the applicant as founding a hypothesis on the basis of the evidence of Professor O'Rourke.
66. Professor O'Rourke was asked about the possible role of CVA in the death of the veteran. He said that the initial occurrence was some twenty years before his death, in around 1985, which may have caused some impairment from which he never recovered. He then said that his death would have occurred about the same time that it did, whether or not he had sustained CVA. On this basis the Tribunal does not accept that the material gives rise to a hypothesis connecting the veteran's death with CVA. In any event, even if this conclusion is not correct on the basis of the above findings the Tribunal is not satisfied that the raised factors in the relevant SOP are made out. The factors relied on in the SOP are hypertension, alcohol consumption and smoking. Paragraph 5 of the SOP of No 51 of 2006 states that at least one of the factors set out in clause 6 must be related to the relevant service.
67. For the reasons outlined above, the Tribunal has determined that the material does not connect any of the raised factors with the veteran's service.
Conclusion
68. Apart from the condition of CVA, the Tribunal is satisfied that the material before it raised a hypothesis potentially connecting the veteran's death with his operational service. Each of the conditions was also the subject of Statements of Principles that had been determined by the Repatriation Medical Authority in accordance with section 196B.
69. For the reasons outlined above the Tribunal is satisfied beyond reasonable doubt that the hypothesis raised is not reasonable in that the material does not fit the templates for the relevant SOPs. The material does not establish a causal connection between the veteran's death and his service. The evidence with respect to the veteran's smoking habit did not match the SOP criteria, nor was there evidence of a causal connection between the veteran's smoking habit and his service.
70. Whilst the evidence regarding the veteran's alcohol consumption may satisfy a SOP factor for hypertension, the requisite connection with the veteran's service is not established. There was no evidence regarding the veteran's alcohol consumption during and following service until he met Mrs Haynes in 1959. Whilst the Tribunal can accept Mrs Haynes' evidence that the veteran had a fairly established pattern of drinking when she met him, this may have been due to circumstances other than his service. There was nothing in the veteran's service that was causative of his alcohol consumption.
71. Accordingly for the reasons outlined above, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran's death was war-caused and affirms the decision under review.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) and Dr S H Toe (Part-Time Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 2 June 2009
Date of Decision 13 July 2009
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Kemp & Co Lawyers
Advocate for the Respondent Mr T O'Reilly
Solicitor for the Respondent Repatriation Commission
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