Markham and Repatriation Commission

[2007] AATA 1422

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1422

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/720

VETERANS' APPEALS DIVISION		)
Re		BEVERLEY MARKHAM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy, RFD, Senior Member
Associate Professor JB Morley, RFD, Member 

Date8 June 2007

PlaceBrisbane

Decision

The Tribunal decides that: The decision under review is set aside; and The veteran's death is deemed to be war-caused in terms of section 8 of the Veterans’ Entitlements Act 1986 (Cth).

.....................[Sgd].........................

Member

CATCHWORDS

VETERANS’ AFFAIRS – operational service in the Royal Australian Navy – whether veteran’s death was war-caused – whether smoking and alcohol consumption is attributable to veteran’s operational service – Statement of Principles – kind of death – Cerebrovascular Accident – Subarachnoid Haemorrhage

Veterans’ Entitlements Act 1986 (Cth) ss 8, 13, 119, 120, 120A, 152, 196B

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 37

Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Towns [2003] FCA 1262
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Bey (1997) 79 FCR 364
Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Tuite (1993) 29 ALD 609
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Milenz (2006) 93 ALD 107

REASONS FOR DECISION

8 June 2007   Dr  KS Levy, RFD, Senior Member
                   Associate Professor JB Morley, Member    

1.      The veteran, Kevin Barry Markham, died on 6 September 2003 aged 64 years.  The applicant, the veteran’s wife, is Mrs Beverley Markham who originally made an application to the Repatriation Commission on 7 November 2003 for a war widow’s pension.  That application was rejected by the Commission on 3 December 2003. 

2. The applicant has sought review of the Commission’s decision which was initially heard by the Veterans’ Review Board on 7 April 2005. However, the Board determined to adjourn that hearing under section 152 of the Veterans’ Entitlements Act 1986 (the Act) to obtain further information and an expert medical opinion about the contribution of a subarachnoid haemorrhage in 1998 and a cerebrovascular accident, towards the veteran’s cause of death, and the relationship of the veteran’s smoking and drinking to those two conditions. 

3. An expert opinion was provided by a neurologist, Dr Jonathan Chalk dated 11 May 2005. The matter was re-heard by the Veterans’ Review Board on 29 August 2005 and the decision that the veteran’s death was not related to his operational service was affirmed. The applicant now appeals that decision to the Administrative Appeals Tribunal under section 29(1) of the Administrative Appeals Tribunal Act 1975.

4.      The applicant was represented by Mr Anthony Harding of Counsel.  The respondent was represented by its Advocate, Mr Terry Thrupp.

Issues

5. The question for the Tribunal is whether the cause of death of the veteran was related to his operational service within the meaning of s 8 of the Act. In particular, the Tribunal must determine whether the pattern of smoking and alcohol consumption by the veteran could be said to be attributable to the veteran’s operational service.

Legislation

6.      The relevant provisions of the Act are as follows: 

“8 War-caused death

(1)       Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

…

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

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:

…

(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.

120  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.

…

(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.

(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.”

Evidence

7.      The following documents were admitted as exhibits:

Exhibit 1 The T documents lodged pursuant to s 37 of the Administrative                 Appeals Tribunal Act 1975

Exhibit 2        Statement of Beverley Markham dated 4 December 2006

Exhibit 3        Statement of Terrence Farrell dated 4 December 2006

Exhibit 4        Statement of Jeff Wade dated 31 May 2006

·Background

8.      The veteran enlisted in the Royal Australian Navy (RAN) at 17 years of age.  The record shows that he served two periods of enlistment in the RAN – the first period was from 13 January 1956 to 28 December 1962 when he was discharged at the expiration of that engagement; and a second period from 16 May 1966 to 26 July 1972, when he was discharged as being physically unfit for Naval service.

9.      The veteran’s operational service with the Far East Strategic Reserve is as follows:

HMAS Sydney         21 September 1956 to 13 October 1956 (approximately   3 weeks)

HMAS Melbourne    17 March 1958 to 3 April 1958 (2½ weeks)

23 April 1958 to 13 May 1958 (3 weeks)

7 April 1960 to 28 April 1960 (3 weeks)

6 May 1960 to 20 May 1960 (2 weeks)

6 June 1960 to 16 June 1960 (1½ weeks)

24 March 1961 to 17 April 1961 (3½ weeks)

10.     The official cause of death of the veteran is as follows:

“1(a)      infarction of medulla of brainstem and proximal spinal cord to T3 (approximately 3 weeks)

(b)       craniospinal arteriovenous malformation (years)

2.Smouldering myeloma (approximately 18 months), cerebrovascular accident secondary to bleed from arteriovenous malformation (5 years) (T documents folio 50).

11. The applicant’s counsel and the respondent’s advocate agreed on most facts as presented in the respondent’s statement of facts and contentions, with the exception of paragraph 7 of those facts and contention i.e. that factor 6(f) of Statement of Principles (SoP) Instrument No 51 of 2006 (for the claim of the cause of alcohol consumption) and factor 6(o)(i)(A) and (B) of SoP No 51 of 2006 (for the purpose of the claim of smoking), as being related to the veteran’s service, as required by s 196B(14) of the Act. The Tribunal considers that SoP No 39 of 2003 (Subarachnoid Haemorrhage) is also relevant to making a determination in this matter.

·     Mrs Markham

12.     Mrs Beverley Markham gave evidence on oath.  She acknowledged that her statement dated 23 June 2004 (T documents, folio 155) and her statement dated 4 December 2006 (Exhibit 2) were correct to the best of her knowledge.  She was also referred to the Smoking Questionnaire dated 14 January 1999 (T documents, folio 31-32) and stated that the questionnaire was completed by herself, in her handwriting, but it was signed by the veteran.  She stated the information contained in that questionnaire was filled out to the best of her knowledge as her husband’s state of health at that time was very poor.  She referred to the fact that he had had a stroke in June 1998 and had lost the use of his legs, and there also was severe memory loss. 

13.     The applicant stated that she met her late husband (the veteran) when she was 15 at the end of 1955.  She recalled the veteran joined the Navy in 1956 and that when he came home from overseas, he was smoking and drinking.  On further questioning, the applicant said that she could not be certain whether he was smoking before or after he returned from overseas service.  However, she thought it was in June or July in 1956 when he commenced drinking, and said he wanted to get drunk.  The applicant said they were established habits and he would go to the hotel while he was waiting for her after work.

14.     The applicant’s evidence was also that after he returned from overseas service, his drinking and smoking habits had increased.  She acknowledged that she could not observe him during the day but saw him in the evening. He was smoking regularly but his drinking was not too bad when she was with him.  She also recalled that at that time, she worked in a shop in George Street in Brisbane and that the veteran would sometimes wait for her and meet her after work.  Sometimes he would wait in the arcade outside the shop but sometimes he would be in the British Empire Hotel and she would have to open the door of the Bar to signal him to come out.  The applicant said that he usually wore his naval uniform so that he could be served in a public bar. 

15.     In cross-examination, the applicant recalled that the veteran was smoking on the first occasion she recalled him coming home.  She said he was not smoking before he joined the Navy but was not sure what happened before he came home on the first occasion – i.e. whether he had merely finished his initial training or whether he had also undertaken a period of operational service.

16.     The applicant gave evidence that the veteran had told her that when he was in Singapore, he and some naval friends had ridden bicycles off the end of the jetty in Singapore.  She concluded that he must have been drinking.  She was referred to the smoking questionnaire which she noted in her statement of 23 June 2004. Her estimate recorded there was that he commenced smoking in 1957.  That statement also refers to the veteran being on HMAS Sydney in late 1956.  The applicant admitted that her estimate of the veteran commencing to smoke in 1957 was a mistake and should have read 1956. 

·Medical Evidence

17.     A summary of the medical evidence is as follows:

• Report by General Practitioner Dr Robert Brown of Boondall of 28 August 1995 (T documents folios 13-14), Diagnostic Reports of 14 January 1999 (ibid folios 15-21), Medical Impairment Assessments of 14 January 1999 (ibid folios 22-30), and further report by Dr Robert Brown of 10 October 2004 (ibid folio 61).

• Veteran's Discharge Summary from Cardiology Registrar Dr Tony Rafter of his admission into The Prince Charles Hospital 13 to 17 December 1997 (T documents folio 71).

• Veteran's Discharge Summary of his admission by transfer to the Geriatric and Rehabilitation Unit, Rosemount of Royal Brisbane Hospital on 29 July to 30 September 1998, following his admission into Royal Brisbane Hospital on 2 June 1998 (T documents folios 140-143); his final diagnoses were:
• subarachnoid haemorrhage secondary to arteriovenous malformation
• nosocomial pneumonia
• monoclonal gammopathy of uncertain significance
• ulcerative oesophagitis and duodenitis
• Paget's disease
• cognitive impairment

• Letter from Visiting Neurosurgeon Dr Terry Coyne of Royal Brisbane Hospital of 11 December 1998 (T documents folio 145) reporting his review of the veteran in the Neurosurgical Clinic following his subarachnoid haemorrhage of five months earlier.

• Letter from Urology Registrar Dr Wesley Hii of Royal Brisbane Hospital of 31 July 2000 (folio 144).

• Veteran's Discharge Summary of his admission into the Royal Brisbane Hospital of 25 November 2002 until his discharge on 12 February 2003 (T documents folios 62-66, reproduced in folios 127-129 and folios 135-139); this includes his MRI scan reports of spine and brain (10 January 2003), and the discharge diagnoses were:
• smouldering multiple myeloma
• subarachnoid haemorrhage secondary to arteriovenous malformation in 1998
• ventriculo-peritoneal shunt secondary to above
• longstanding significant cognitive impairment MMSE 16/30
• prostatism
• constipation
• Bell's palsy
• psoriasis
• previous heavy alcohol abuse
• Paget's disease.

§Letter from clinical Haematologist/Oncologist Dr Tony Blackwell of Greenslopes Private Hospital of 7 April 2003 (T documents folios 133-134).

·Veteran's Greenslopes Private Hospital clinical notes of his admission on 10 August 2003 until his death on 6 September 2003 (T documents folios 77-126).

·Veteran's Death Certificate of 22 September 2003 (T documents folio 50), certifying death being due to:

o1(a) Infarction of medulla of brainstem and proximal spinal cord to T3 (approximately 3 weeks)

o(b) Craniospinal arteriovenous malformation (‘years')

oSmouldering myeloma (approximately 18 months), cerebrovascular accident secondary to bleed from arteriovenous malformation (5 years).

·Report by Visiting Cardiologist Dr Richard Seymour of The Prince Charles Hospital of 14 October 2004 (T documents folio 70).

·Report by Senior Medical Officer Compensation for DVA Dr Peter Grant of 2 November 2004 (T documents folio 68).

·Report from Dr J R Taylor, Senior Medical Officer for Executive Director of Medical Services for Royal Brisbane and Women's Hospital of 15 February 2005 (T documents folios 131-132).

·Report from Neurologist Dr Jonathan Chalk of Ashgrove of 8 March 2006.

·Statement of Jeff Wade of 31 May 2006.

·Statement of Terrence James Farrell of 4 December 2006.

·Statement of Beverley Markham of 4 December 2006.

18.     In addition, the Tribunal had copies of the Reports of Proceedings (with Appendices) of 'HMAS Sydney' for September and October 1956 by the Commanding Officer Captain WH Harrington.  These recorded HMAS Sydney sailing from Brisbane to Sydney via Sydney, Darwin, Singapore, Hong Kong, and Manila, and engaging in exercises en route.

19.     The applicant's uncontested evidence was that the veteran had continued to drink alcohol and smoke, both heavily, up until the time of his subarachnoid haemorrhage on 2 June 1998 (exhibit 2 page 2 paragraph 3(m) and page 3 paragraph 4(b)).  He did not drink alcohol or smoke after that date.

20.     It is clear from T documents folios 62, 140 and 145 that the "bleed from arteriovenous malformation" of five years before the veteran's death, as listed on his Death Certificate, was a subarachnoid haemorrhage from his arteriovenous malformation at the base of his skull on 2 June 1998:

·     in the veteran's Discharge Summary from the Royal Brisbane Hospital Geriatric Unit Rosemount of 5 October 1998 (folio 140) the opening paragraph reads: "Mr Markham had been admitted to our Rehabilitation Unit to intend to improve his independence after having suffered a subarachnoid haemorrhage on 2.6.98 secondary to an arteriovenous malformation";

·     in his Discharge Summary from the Royal Brisbane Hospital Geriatric Assessment and Rehabilitation Unit (folio 62), of his admission from 25 November 2002 to his discharge of 12 February 2003, his past medical history is listed as including "Subarachnoid Haemorrhage secondary to AVM (ie arteriovenous malformation) in 1998"; and

·     in his letter to Dr Robert Brown of 11 December 1998 (folio 145), Royal Brisbane Hospital Visiting Neurosurgeon Dr Terry Coyne wrote "[Mr Markham] was admitted to the Neurosurgical Intensive Care Unit five months ago in a poor neurological condition having suffered a subarachnoid haemorrhage.  This was found to be secondary to a complex AVM in the region of the foramen magnum".

21.     When in the Greenslopes Private Hospital in August 2003 for internal fixation of his distal right humerus fracture, on 14 August he developed worsening weakness down the left side of his body, and lost his voice (T documents folio 88).  His CT brain scan later that day showed that he had suffered a cerebrovascular accident, of an ischaemic stroke or infarction, of both of his cerebellar hemispheres and brainstem (ibid folios 89 and 95); and his MRI scan of his brain and spinal cord of 20 August 2003 was said to have confirmed this infarct (ischaemic stroke) involving the medulla of his brainstem and upper spinal cord, as well as some involvement of both cerebral hemispheres and the right frontal lobe of his brain (ibid folio 97).

Consideration

22.     The Tribunal has considered all of the factual material, both oral and documentary, and has also taken into account the relevant statutory material and case law authorities.

·Analysis of Preliminary Issues

23.     There are four preliminary questions which must be determined.  These are as follows:

(i)        Was Mr Markham a veteran?

Independent evidence from the Department of Defence indicates that the veteran served on operational service on seven occasions between September 1956 and April 1961 (T4, folio 1).  Neither the applicant nor the respondent have taken issue with the factual position shown there.  Therefore the Tribunal accepts that Kevin Barry Markham is a veteran and was present on operational service for the purposes of the Act, as revealed by the above record. 

(ii)       Is Beverley Markham the wife of the deceased veteran?

The death certificate for the veteran refers to the informant to the Registrar-General of the veteran’s death as being “B. Markham, wife”.  The Tribunal notes also that the respondent does not dispute that the applicant is the veteran’s wife and the Repatriation Commission was likely to have had an official record of the name of the applicant as the veteran’s wife, prior to his death.  In any event, as there is no dispute as to the identity of the applicant as being the wife of the veteran, the Tribunal accepts this as a finding of fact.

(iii)      Is there evidence that the veteran had died?

A death certificate issued by the Registrar-General dated 22 September 2003, which appears to have been certified as a true copy of the original by the Commissioner for Declarations, was available to the Tribunal (T documents, folio 50).

(iv)     What was the “kind of death” suffered by the veteran?

This is an issue referred to in s 120A(2) of the Act. Where there is more than one condition, then this question should be answered in respect of each cause. If one of the causes of death is related to war service, then this would be sufficient to demonstrate that the death was “attributable to” war service and therefore justify pension for the applicant under s 8(1)(b) of the Act (see Repatriation Commission v Hancock [2003] FCA 711 at [9].

·The "kind of death" suffered by the veteran

24.     In this case, the certificate of death refers to the causes of death being cerebrovascular accident.  This is governed by SoP No 51 of 2006 – Cerebrovascular Accident.  Following the initial hearing by the Veterans’ Review Board and the subsequent expert opinion, a question arose as to whether the cause of death may also be related to subarachnoid haemorrhage.  An instrument, SoP No 39 of 2003 – Subarachnoid Haemorrhage, is also in existence in that respect.

25.     The death certificate (T documents folio 50) has certified that among his causes of death were:

·     infarction of his medulla of his brainstem and proximal spinal cord to T3 of three weeks before his death; and

·     cerebrovascular accident secondary to bleed (ie subarachnoid haemorrhage) from arteriovenous malformation of five years before his death.

26.     But in determining the kind of death suffered by the veteran, the Federal Court has held that this is a term of wide import and is not to be limited only to the specific cause identified on the death certificate (Repatriation Commission v Towns [2003] FCA 1262). It is apparent from the uncontested evidence, that the veteran smoked heavily and also was a heavy consumer of alcohol from early in his naval service in 1956 until 2 June 1998 when he experienced a subarachnoid haemorrhage. While there has also been some conflict in medical evidence, at least before the Veterans’ Review Board, we believe there is a sufficient pattern of indicia found in relevant SoPs and in the veteran’s medical reports associated with his subarachnoid haemorrhage as well as his cerebrovascular accident, and we are reasonably satisfied that the kind of death is some form of stroke which was consistent with, at least initially, subarachnoid haemorrhage and ultimately with a form of stroke consistent with what is known as cerebrovascular accident from cerebral ischaemia ie infarction of the medulla of the brainstem.

Substantive Analysis of the Issues

27.     There is evidence that the applicant performed operational service whilst in the RAN.  He served on seven occasions between 1956 and 1961 on HMAS Sydney or HMAS Melbourne.  None of these occasions were longer than three weeks duration.  There was no evidence presented of any incident which may have resulted in a stress level or which would have caused a consequential effect of excessive drinking and smoking in the veteran.  Also, the Tribunal notes the evidence of the applicant that it is unclear from her recollection whether the veteran’s drinking and smoking occurred before operational service or after operational service.

28.     The Tribunal was initially of the view that it was more logical that the evidence indicated that the veteran would have returned home on pre-embarkation leave prior to proceeding on operational service.  It was also a time following his basic or initial training.  If that was the case, then his drinking and smoking would have been initiated prior to operational service.  However, the applicant noted that the veteran’s smoking and drinking behaviours had certainly increased after his operational service; this evidence was not contested by the respondent.  The question for this Tribunal is therefore regarded as being how the veteran satisfies the provisions of the Act in terms of his operational service.  The Tribunal notes also there is no evidence in the Naval Medical records of any incident which would have caused a change in behaviour, and certainly not of such severity to remain a lifelong addiction to smoking and drinking.  In addition to an absence of any reporting or evidence amongst the service records, there was also no evidence of his being treated for any psychiatric condition. Therefore, for the applicant to succeed, the veteran’s smoking and drinking must be accepted as being initiated in defence service, and escalated during or following operational service, and which has led ultimately to the veteran’s subarachnoid haemorrhage and/or his cerebrovascular accident.

29.     The Tribunal accepts that both the cerebrovascular accident of ischaemic type three weeks before the veteran’s death and the subarachnoid haemorrhage five years earlier, caused the veteran's death. The Tribunal must therefore analyse any evidence based on the information available and in terms of Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 where the Court outlined four principles of analysis to be followed by the Tribunal:

“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 s196B(2) or (11)… 

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 s120(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.” 

30.     In relation to step 1 in Deledio the applicant has provided evidence which raises a scenario that allows a hypothesis to be formulated and where a connection is depicted between the veteran’s causes of death and a description of his naval service.  Without any consideration of fact finding, the Tribunal considers that step 1 is satisfied.

31.     In relation to step 2 of Deledio, the Tribunal must be satisfied that an SoP determined by the Repatriation Medical Authority (RMA) under s 196B(2) or (11) exists, and which would be relevant to the hypothesis raised in step 1. The relevant references to SoPs are –

(a)      First, for a cerebrovascular accident from cerebral ischaemia, in relation to the      veteran’s smoking habit, factor 6 of SoP No 51 of 2006 is potentially     relevant in assessing the link between cerebrovascular accident and the            veteran’s service.  In the event that the Tribunal does not find in favour of the applicant in respect of that SoP, there is a residual right to have the            application considered under the former SoP No 52 of 1999 –          Cerebrovascular Accident.

(b)      Second, for subarachnoid haemorrhage, for SoP No 39 of 2003, none of the        exclusions listed in paragraph 2(b) apply to this veteran's case.  On the face     of it, in this SoP, factor 5(b) in relation to the veteran's alcohol consumption,   and factor 5(e) for his smoking habit, up to the time of his subarachnoid haemorrhage five years before his death, appear to be relevant.

32.     Therefore, the Tribunal regards step 2 also as being satisfied.

33.     With respect to step 3, the Tribunal must assess whether the hypothesis raised in step 1 is reasonable when considering the association between the veteran’s death from cerebrovascular accident of ischaemic type and/or subarachnoid haemorrhage, and his smoking and drinking which commenced during his naval service.  This step is not a fact finding exercise but an assessment of whether the applicant’s version of events fits the template in the relevant SoP.

34.     In relation to SoP No 51 of 2006 (cerebrovascular accident), factor 6(o) deals with the situation, as is the case here, where the veteran has ceased smoking before the clinical onset of cerebrovascular accident. In factor 6(o)(ii)(A), a reasonable hypothesis might be raised where the veteran has smoked an average of at least five cigarettes per day for at least five years and where the clinical onset of cerebrovascular accident occurred within 10 years of cessation of smoking. The applicant satisfies that factor.  Furthermore, in factor 6(o)(ii)(B), a reasonable hypothesis might be raised if the veteran has smoked an average of at least 20 cigarettes per day for at least five years before the clinical onset of cerebrovascular accident.

35.     We note that the requirements of factor 6(o)(ii)(A) above is virtually identical with factor 5(e) of SoP No 39 of 2003 - Subarachnoid Haemorrhage. We find that the uncontested evidence that the veteran had smoked about 20 cigarettes per day from early in his naval career until 2 June 1998 is also supportive of that conclusion.

36.     We now turn to the veteran’s alcohol consumption. Factor 6(f) of SoP No 51 of 2006 requires as a minimum that a person must have drunk on average at least 250 grams of alcohol per week for at least one year before the clinical onset of cerebrovascular accident or death from cerbrovascular accident, for there to be a reasonable hypothesis that the death could be linked to the veteran’s naval service. We note in SoP No 39 of 2003 - Subarachnoid Haemorrhage - that factor 5(b) can raise a reasonable hypothesis of subarachnoid haemorrhage or death from subarachnoid haemorrhage where, for men, a veteran has drunk at least 7.5 kg of alcohol within the year immediately before the clinical onset of subarachnoid haemorrhage.

37.     The applicant has provided information that the veteran, in 1957, at least, in the period between his operational service on HMAS Sydney and subsequent service on HMAS Melbourne, that is, when he was home on leave and not on operational service, the veteran would consume one dozen glasses of beer per day and in addition would have half a dozen stubbies as well as some nips of rum.  This consumption was evidenced on a daily basis when he was at home and the applicant also provided evidence that the veteran would also binge drink.  She stated that this habit continued through to 1 June 1998 as he had a cerebrovascular accident. (The Veterans’ Review Board decision referred to Dr Chalk’s evidence as not supporting a relationship between cerebrovascular accident and/or subarachnoid haemorrhage, with the veteran’s smoking. There, the advocate for the applicant suggested that SoP 52 of 1999 showed a connection between alcohol consumption and death from cerebrovascular accident, and therefore diminished Dr Chalk’s evidence. (See paragraph 12 of the VRB decision of 29 August 2005)).

38.     Considering the quantities of alcohol which the applicant has observed in the veteran during his naval career and up to the time of death, we estimate that 12 glasses of beer per day and six stubbies alone could amount to 4.6 kg per day (approximately). This does not take account of the effect of his also drinking rum. In any event, this consumption pattern is grossly in excess of the amounts specified in either of the SoPs mentioned above. Based on the numerical quantities consumed compared with the numerical standards specified, a reasonable hypothesis could be raised that the veteran’s subarachnoid haemorrhage was related to his smoking and/or drinking alcohol. (Given the similarity in the factors which must be demonstrated, there appears to be a reasonable basis for accepting that these are related conditions and that the ultimate death, by cerebrovascular accident in 2003 was part of a continuum which commenced with the subarachnoid haemorrhage in 1998).

39.     On the face of that evidence, the Tribunal accepts that there are indicia which would raise a reasonable hypothesis on the basis of alcohol consumption between the veteran’s naval service and the cerebrovascular accident which contributed to his death.

40.     The Tribunal must have regard to the whole of the evidence, in light of the relevant legal authorities.  There must be demonstrated a temporal connection between the evidence of service and the veteran’s death, as well as a causal connection.  It is the causal connection which is ultimately critical to this evaluation.

41.     In relation to the temporal connection, the evidence outlined above is ample for the Tribunal to conclude that a temporal connection exists.

42.     In relation to whether there is a causal connection between the veteran’s smoking or drinking and his naval service, it is to be observed that the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564, in referring to the previous High Court authority of Bushell v Repatriation Commission (1992) 175 CLR 408, quoted from the joint judgment of Mason CJ, Deane and McHugh JJ in the following terms:

“The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis.  When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.”  (At 569 - 570).

43.     The Court went on to summarise the position as follows:

“(1)     …

The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.  If the hypothesis is not reasonable, the claim fails.  Proof of facts is not in issue at this point. 

(2)       If a reasonable hypothesis is established, sub-s (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 they hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.” (Page 571).

44.     For the hypothesis to be reasonable therefore, it must be “…more than a mere possibility.  It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities”. (Repatriation Commission v Bey(1997) 79 FCR 364 at 372-273).This position has been confirmed in Connors v Repatriation Commission (2000) 59 ALD 61 at 68.

45.     The Tribunal was also referred to the authority of Repatriation Commission v Tuite (1993) 29 ALD 609 where, the Full Court of the Federal Court considered whether a smoking habit, including the influence of camp life (and not active service), was attributable to war service. In the judgment of Davies J, His Honour said:

“Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. … the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred.  Denning J has said that the service ‘must be a cause’ as distinct from being part of the circumstances in or on which the cause operates.  See Marshall v Minister of Pensions [1948] 1 KB 106 at 110 …. Minister of Pensions v Chennell [1947] 1 KB 250 at 256.

An illustration of this point may be found in Goward v Commonwealth (1957) 97 CLR 355 where Dixon CJ, Williams, Webb and Kitto JJ held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause.  Their Honours said at 364:

‘It is correct no doubt that if the camp had not been near a railway line and if the deceased had not been living in the camp, the accident would not have happened.  But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident’.”

Of course, causation is primarily an issue of fact. As Mason CJ said in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515:

‘The common law tradition is that what was the cause of a particular occurrence is a question of fact which ‘must be determined by applying common sense to the facts of each particular case …’ .”

46.     Looking therefore to the causal connection between the veteran’s smoking and/or alcohol consumption, and his naval service, the question is whether there is more than a mere temporal connection with his Naval service. The effect of alcohol on the veteran's behaviour even at the age of 18, was demonstrated by the applicant when she referred to an incident in operational service where the veteran rode a bicycle off a jetty in Singapore and which the applicant presumed was when the veteran was inebriated. It was not an incident of active service (albeit he was on operational service) but the veteran’s early addiction was evident to the applicant. While she did not witness the incident in Singapore, she saw the impact on her husband from about that age and continuing up to when he had a subarachnoid haemorrhage on 2 June 1998, at the age of 59.

47. In assessing this matter, we are conscious of the fine balance which might be required because of the paucity of facts available here. As the advocate for the respondent submitted, this is a matter that could go either way. The Tribunal is mindful of section 119 of the Act and that evidence cannot be constructed where it does not exist. However, we are also required by that section to act in accordance with “substantial justice and the substantial merits of the case". The fact that the applicant in this case is the widow and could not have direct evidence of her husband's naval service, she is at a disadvantage in being able to demonstrate aspects of his service life which are more factual and supportive of showing a reasonable hypothesis.

48. Nevertheless, the hypothesis here is not without any supporting evidence and the evidence is not contradicted and is not fanciful. In considering whether there is a reasonable hypothesis which can be linked to operational service, we believe there is such a reasonable hypothesis, supported by our obligation under s 119. In addition, we note the judgment of Emmett J in Kattenberg v Repatriation Commission (2002) 73 ALD 365, where he said at paragraph 38 “In considering, under s 120(3), whether the material raises a reasonable hypothesis, the Tribunal should not be concerned with conflicts in the material, whether they be of opinion or fact. The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. The Tribunal is bound to have regard also to material that is opposed to the material that supports a veteran's claim for the purposes of examining the validity of the reasoning that supports the claim that there is a connection between the incapacity and the service. However, a hypothesis may still be reasonable although it is unproved and is opposed to the weight of the evidence. The use of the terms "the material" and "raise" suggest that s 120(3) is not concerned with the proof or satisfaction of a claim, but whether there is some "material" that calls for a determination under s 120”: [see] Bushell v Repatriation Commission (1992) 175 CLR 408 at 413-415.

49.     In the final analysis, we find that the veteran’s smoking and drinking habits commenced in the earliest part of his naval service and got considerably worse after he had been on operational service. The pattern of smoking and drinking in particular, would be regarded as excessive by the standards and habits of most people in the community. The veteran served one period of service of six years and then was discharged. Almost three and a half years later, he re-enlisted for a second period of service and was discharged at the end of that period as being physically unfit for naval service. The pattern of smoking and drinking developed while in the Navy and remained unabated for most of the rest of his life. On 2 June 1998, he had a subarachnoid haemorrhage. He was virtually immobilised and dependent on others for the remaining five years of his life. In our view, there is evidence which points to the development of nicotine and alcohol addictions from early in the veteran’s naval service and even though not proved on the balance of probabilities it is more than a possibility. It is not fanciful or untenable nor is it contrary to known scientific evidence. The evidence is also consistent with the definitions of “death from subarachnoid haemorrhage” or “death from cerebrovascular accident” and with the factors outlined in the relevant SoPs. The hypothesis is based on this evidence and is consistent with the manifestations required under the SoPs (Repatriation Commission v Milenz (2006) 93 ALD 107). We are therefore satisfied that there is also a causal connection and that the raised facts in the evidence are consistent with the templates contained in the relevant SoPs and therefore create a reasonable hypothesis.

50.     We now consider Step 4 of the Deledio process. This requires a determination under section 120(1) of the Act and specifically, whether the Tribunal can be satisfied beyond reasonable doubt that the death was not war caused. If we are not satisfied beyond reasonable doubt that the death was not war-caused, then the applicant is entitled to succeed in her application.

51.     We have considered the evidence and the numerical standards to be met under the relevant SoPs. In relation to the veteran’s smoking habit, the Tribunal makes the following findings of fact:

(a)the veteran commenced smoking in 1956 whilst in the Navy and before he commenced operational service;

(b)that his smoking habit increased by the time he had completed at least one period of operational service in late 1956 or at some time in 1957. 

(c)there was a gradual increase in smoking due to nicotine addiction from 1957 through to 2 June 1998 when the veteran ceased smoking following a stroke.  The Tribunal accepts the evidence that the veteran then had a nicotine habit of 40 cigarettes a day and had maintained such a habit for some decades.

(d)the veteran’s alcohol consumption also progressively increased from 1957.

52.     We are satisfied beyond reasonable doubt that the veteran's smoking and drinking meets the numerical standards required as a matter of fact. Equally, we are satisfied that the development of these habits in such close proximity to his operational service must have made a significant impact on him, either due to age or constitutional factors. The veteran seems to have been adversely affected by his naval service, and his smoking and drinking addictions seemed to have contributed to his discharge on the grounds of medical unfitness at a relatively young age. There is evidence of a consistency of addiction to alcohol and nicotine for the remainder of his life from his early naval service through until 2 June 1998 when he suffered a subarachnoid haemorrhage, notwithstanding a separation from service life for a very long time (about 26 years) before this first stroke.

53. We are also satisfied that the uncontradicted evidence of these addictions is related to both the veteran’s subarachnoid haemorrhage and his cardiovascular accident. We make this finding on the basis that in relation to smoking and alcohol consumption, there are common factors in both SoPs which the veteran satisfies, and accepting as a fact that he suffered a semi-vegetative state for over five years after the subarachnoid haemorrhage until his demise, we are not satisfied beyond reasonable doubt that the veteran's death was not war-caused within the meaning of section 8 of the Act.

54.     In the circumstances, we therefore determine as follows:

1. The decision under review is set aside;
2. The veteran's death is deemed to be war caused in terms of section 8 of the Veterans’ Entitlements Act 1986.

This means that the applicant is entitled to pension under section 13 of the Act.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KS Levy, RFD and Associate Professor JB Morley, RFD Member

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  8 March 2007
Date of Decision  8 June 2007
Counsel for Applicant                Mr A Harding, of Counsel
Solicitor for Respondent           Woods Prince, Lawyers  
Respondent  Mr T Thrupp, Departmental Advocate