MARIE DYKE and REPATRIATION COMMISSION - [2013] AATA 472

[2013] AATA 472

Division VETERANS' APPEALS DIVISION

File Number

2011/3709

Re

MARIE DYKE

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Senior Member Dr K S Levy, RFD

Date 8 July 2013

Place Brisbane
The Tribunal affirms the decision under review.
[Sgd]

Senior Member Dr K S Levy, RFD
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Widows’ pension – War service – Type of death of the veteran – Hypotheses connecting death with service – Statements of Principle – Deledio steps – Standard of proof – Death not connected to service – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 14, 120, 120A
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Fogarty v Repatriation Commission [2003] FCAFC 136
Kaluza v Repatriation Commission [2010] FCA 1244
Leesv Repatriation Commission (2002) 125 FCR 331
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles: Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008
Statement of Principles: Instrument No. 21 of 2006 as amended by Instrument No. 63 of 2006 and Instrument No. 61 of 2010
Statement of Principles: Instrument No. 51 of 2006 as amended by Instrument No. 123 of 2011
Statement of Principles: Instrument No. 5 of 2008
Statement of Principles: Instrument No. 27 of 2008
Statement of Principles: Instrument No. 68 of 2009
Statement of Principles: Instrument No. 37 of 2012; Instrument No. 9 of 2003; Instrument No. 29 of 2003
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
BACKGROUND

Mr John Dyke (“the veteran”) served in the Royal Australian Air Force (RAAF) and died on 12 July 2006, aged 81 years. The applicant in this matter, Mrs Marie Dyke, is his widow and dependant in accordance with the definitions of those terms in ss 5E and 11 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
On 4 March 2009, the applicant lodged a claim under s 14 of the Act for a war widow’s pension, claiming that the veteran’s death was war-caused in accordance with s 8 of the Act. On 24 March 2009, the Repatriation Commission (“the respondent”) rejected the claim as did the Veterans’ Review Board on 28 June 2011. On 7 September 2011, the applicant lodged an application with this Tribunal for a review of that decision.
SERVICE
The veteran served with the RAAF during World War II from 4 June 1943 to 14 September 1945 and rendered “eligible war service” in the form of “operational service” in accordance with ss 7 and 6A of the Act during that entire period.
CAUSATION
If the death of the veteran is to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevantly, in this matter is s 8(1)(b) of the Act states:
(1) Subject to this section … for the purposes of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] AATA 472
Decision Date

CaseChat Overview and Summary

The case involves Marie Dyke and the Repatriation Commission, with the primary dispute centering on whether the death of a veteran was attributable to his war service. The Federal Court was tasked with determining whether the veteran's death, caused by a cerebrovascular accident, arose out of or was attributable to his service in the Royal Air Force during World War II. The veteran served from April 1944 to June 1945 as an Air Gunner in the UK, participating in 29 operational missions over Europe. The court had to decide on the validity of various hypotheses regarding the veteran's medical conditions and their possible links to his military service.

The court was required to address several legal issues, including whether there was sufficient evidence to establish that the veteran's death was connected to his war service. This involved assessing the expert evidence and determining which hypotheses were more credible. The court needed to consider the veteran's medical history, including his blood pressure readings and the diagnoses made by various doctors. It also had to weigh the evidence regarding potential conditions such as ischaemic events, vascular dementia, hypertension, panic disorder, and PTSD, and their possible links to the veteran's service.

The court ultimately concluded that Dr Ringrose's evidence was more reliable and persuasive than that of Drs Brennan and Phillipson. Dr Ringrose's opinion was based on concrete medical facts and a logical analysis, which the court found to be more convincing. The court determined that the hypotheses proposed by the applicant, particularly those linking the veteran's death to his military service, were not substantiated by the evidence to the required standard of beyond reasonable doubt. Therefore, the court affirmed the decision under review, dismissing the claim.

The final orders of the court affirmed the decision of the Repatriation Commission, rejecting the claim that the veteran's death was attributable to his war service. The court found that the evidence did not support the hypotheses linking the veteran's medical conditions to his service, thus concluding that the death did not arise out of or was not attributable to any eligible war service rendered by the veteran.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The respondent argued that there is evidence of ischaemic events or some vascular dementia in the six month period prior to the cerebrovascular accident on 25 March 2004, but that a hypothesis of hypertension or panic disorder is not raised. In respect of the hypothesis of PTSD, the respondent points to the posthumous diagnosis of PTSD by Dr Phillipson but he could not find sufficient evidence to substantiate panic disorder. The respondent also rejects any causal link between carotid arterial disease, vascular dementia or PTSD and the “type of death” suffered by the veteran. EVIDENCEService Department of Defence records indicate that the veteran served from 7 April 1944 to 19 June 1945 as an “Air Gunner”, based in the United Kingdom.[1] A report completed by Dr Albert Palazzo, consultant historian, dated 17 December 2011,[2] records that the veteran was attached to the Royal Air Force 101 Squadron at Bomber Command and flew in 29 operational missions in a Lancaster Heavy Bomber over the European continent. Dr Palazzo states that while the personal records of the veteran are unavailable as they are located in the United Kingdom, “flying with Bomber Command” was a “hazardous business” and “over 4,000” Australian airmen lost their lives while serving there. Dr Palazzo also describes the role of the air gunner in his report. He states that their job was to man the turret guns and protect the bombers from very sudden attacks by German fighter planes. [1] Exhibit 1, T-documents, p. 12. [2] Exhibit 3.The applicant The applicant wrote letters to a pensions advocate on 16 November 2008 and to the respondent on 15 June 2009. In both of those letters she states that the veteran suffered from “severe nightmares” throughout his life and that he suffered nerve problems which led to ulcers. In the letter to the respondent, she stated that the veteran’s mother worried about how she would “cope” with him after he had returned from service. Dr T. P. Clarke In evidence were the veteran’s medical records from 14 April 1999 to 8 July 2006, provided by his general practitioner, Dr T. P. Clarke.[3] Among other things, they record his blood pressure during that period as:[3] Exhibit 2. On 16 May 2005, Dr Clarke notes in the medical record that he is going to “trial” the veteran on “Minipress” but it is to be done “carefully in view of BP”. On 1 July 2005, Dr Clarke notes in the record that the veteran has “obstructive uropathy” and that there has been “minimal progress with Minipress, change to Flomax”. On 24 February 2005, Dr Clarke completed a “Diagnostic Report – Cerebrovascular Accident”, in regards to a right occipital lobe haemorrhage that the veteran suffered on 25 March 2004.[4] In that report Dr Clarke states that the veteran’s condition included both intracerebral haemorrhage and cerebral ischaemia. He also stated that there was “underlying cerebral artherosclerosis”. In the report Dr Clarke suggests that the “clinical onset” of the condition was “6 months prior” as there was evidence suggesting “small ischaemic events” at that time. [4] Exhibit 6, pp. “20-21”; Note that this exhibit includes material that was inadvertently omitted from the T-documents.

Decision

Reasons for decision

Taking account of all of the doctors’ opinions, all of whom are highly qualified and all of whom have some decades of experience, I have concluded that the evidence of Dr Ringrose is to be preferred to that of Dr Brennan and Dr Phillipson. While opinions provided posthumously are obviously difficult and problematic even for the most experienced professionals, I am left with greater confidence in the opinion of Dr Ringrose as his analysis is based on concrete medical facts and a logic which is difficult to attribute to the opinions of Dr Brennan and Dr Phillipson. In my view, the test for expert evidence where professionals are to explain the reasoning for their professional opinions, as set in Makita (Aust) Pty Ltd v Sprowles,[24] is satisfied to a higher degree by Dr Ringrose than are the opinions of Drs Phillipson and Brennan. Therefore, I am satisfied, having considered all that evidence, that the weight of evidence is now against the hypotheses proffered by the applicant and I am satisfied that the factual evidence outweighs the hypotheses to the standard of beyond reasonable doubt.[24] (2001) 52 NSWLR 705.DECISION In the circumstances, therefore, the decision under review should be affirmed.

Ratio Decidendi

Legal Principle Established

Dr Ringrose notes that the veteran’s blood pressure was not taken immediately before the stroke but that it was elevated to 179/98 after the stroke. However, he also notes that it had fallen a few hours later to 120-130/80. Dr Ringrose states that Dr Phillipson assumed that the veteran’s blood pressure was high prior to his stroke and that the elevated reading was brought on by an acute stress reaction. Dr Ringrose opines that, while it cannot be determined definitively either way, given the veteran’s blood pressure readings over a number of years, this “is not particularly likely” and that the one elevated blood pressure reading taken after his stroke “may well have been a response to a rise in intracranial pressure at the time of the stroke”. CONSIDERATION To determine whether the veteran’s death “arose out of or was attributable to any eligible war service rendered by him”, it is first necessary to determine a number of fundamental issues. These are:(1)That the deceased person was a veteran and that he had served on “operational service”; and (2)That the veteran had died; and (3)That the applicant was the deceased veterans widow. These issues are not in dispute and there is some evidence before the Tribunal to be satisfied that each of these is satisfied. I therefore accept these as findings of fact. A further fundamental issue is the question of what is the “kind of death” suffered by the veteran. This is to be determined on the balance of probabilities (see s 120(4) of the Act and Fogarty v Repatriation Commission [2003] FCAFC 136 at [34]). There is sufficient evidence to establish that the “kind of death” in this case is a cerebrovascular accident. The etiology of some of the conditions said to underpin death by cerebrovascular accident is subject to hypothesis or conjecture that must be viewed in light of the expert evidence, some of which is posthumously determined and some of which is counterbalanced by other “conflicting” expert evidence. The procedure, or steps, for determining whether or not a particular condition which caused death “arose out of, or was attributable to, any eligible war service that the veteran rendered” was set out by the Federal Court in Repatriation Commission v Deledio (Deledio):[16](i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. (ii) If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ... (iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail. (iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.[16] (1998) 83 FCR 82 at 82 – 83.Step 1:- Hypotheses

Division	VETERANS' APPEALS DIVISION
File Number	2011/3709
Re	MARIE DYKE
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Senior Member Dr K S Levy, RFD
Date	8 July 2013
Place	Brisbane