MAVIS MAGILL Applicant And REPATRIATION COMMISSION Respondent
[2007] AATA 9
•9 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 9
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/708
VETERANS' APPEALS DIVISION )
Re MAVIS MAGILL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member and Dr G J Maynard, Member Date9 January 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ........[Sgd]........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – operational service with Royal Australian Navy - death from pneumonia as terminal event – kind of death was that associated with Huntington’s chorea - application of Statements of Principles - reasonable hypothesis of relevant relationship to eligible war service not raised – death not attributable to and did not arise out of eligible war-service – accepted disability of chronic bronchitis and emphysema was not a condition from which veteran died - decision affirmed
Veterans’ Entitlement Act 1986 ss 5E, 6A, 7, 8(1)(b), 8(1)(f), 9, 11, 14, 120(1), 120(3), 120(4), 120A(3)
Administrative Appeals Tribunal Act 1975 s 37Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission (2003) AAR 363; [2003] FCAFC 136
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408Hammond and Repatriation Commission [2003] AATA 311
Shaw and Repatriation Commission [2005] AATA 354Repatriation Commission v Hayes (1982) 43 ALR 216
REASONS FOR DECISION
9 January 2007 Mr RG Kenny, Member
Dr G J Maynard, MemberBackground
1. Clifton Rex Magill (the veteran) served in the Royal Australian Navy (RAN) in World War II. He died on 6 August 2004 at the age of 78 years. On 27 October 2004, Mavis Magill, his widow and dependant, as those terms are defined in sections 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (the Act), lodged a claim, under section 14 of the Act, for a pension. This was on the basis that the veteran’s death was war-caused in accordance with section 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 19 November 2004 and, in turn, by the Veterans’ Review Board (the Board) on 8 August 2005. On 8 November 2005, Mrs Magill sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, Mrs Magill was represented by Mr R Anderson of counsel. The respondent was represented by Mr M Smith. Material available to the Tribunal included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Service
3. Mr Magill served in the RAN from 4 November 1943 until 24 October 1946 and we are satisfied that this constitutes eligible war service in the form of operational service in accordance with sections 7 and 6A, respectively, of the Act.
Issues and Legislation
4. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in section 8 of the Act must be met. Relevant in this matter are paragraphs 8(1)(b) and (f) which read:
Subject to this section……. 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; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war‑caused injury or a war‑caused disease, as the case may be;
5. Of relevance to paragraph 8(1)(f) of the Act is Mr Magill’s condition of chronic bronchitis and emphysema which was accepted by the respondent under section 9 of the Act as being war-caused. That condition has also been variously described in the medical reports in evidence as chronic obstructive airways disease (COAD) and chronic obstructive pulmonary disease (COPD).
6. The standard of proof applicable to determining the relationship between operational service and death is set out in subsection 120(1) of the Act which reads:
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.
7. The application of that provision is affected by the terms of subsections 120(3) and 120A(3) of the Act. Those provisions read:
120 (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...
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Kind of Death
Standard of proof
8. The provisions noted above relate to matters of causation and require a consideration of the Statements of Principles which have been published by the Repatriation Medical Authority (RMA). However, before applying the provisions of the Act relating to causation, it is necessary to determine the “kind of death” applicable to the veteran: see Repatriation Commission v Hancock [2003] FCA 711. Such matters are to be determined in accordance with the terms of subsection 120(4) of the Act: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. Thus, the “kind of death” must be determined to the decision maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
Death certificate
9. Mr Magill’s death certificate was completed on 17 September 2004 by renal physician, Dr N Gray. There, the cause of death is recorded as:
Pneumonia: duration 1 day
Huntington’s chorea: duration 5 years.
Submissions
10. Mr Anderson submitted for the applicant that the kind of death in this case was pneumonia and that there was no need for further analysis of the cause of death. Rather, he submitted that consideration should move to the issue of causation for which he postulated three hypotheses:
·there was a reasonable hypothesis that there was contribution to the veteran’s pneumonia from his accepted disability of chronic bronchitis and emphysema and any such contribution could not be excluded beyond reasonable doubt. It was his contention that, in that way, the veteran’s death will be found to have arisen out of or have been attributable to his war service;
·while there was contribution to the veteran’s pneumonia from Huntington’s chorea, there was a reasonable hypothesis that the veteran’s chronic bronchitis and emphysema contributed to death on the basis that it rendered him to a state from which he was unable to recover from pneumonia; and that contribution could not be excluded beyond reasonable doubt. Again, he submitted that, in that way, the veteran’s death will be found to have arisen out of or have been attributable to his war service; and
·a cause of the veteran’s death was his accepted disability of chronic bronchitis and emphysema and, therefore, the effect of paragraph 8(1)(f) of the Act is that his death was war-caused.
11. Mr Smith submitted for the respondent that an analysis of the kind of death was necessary because the veteran’s pneumonia was merely the terminal event from which he died; that a determination of the kind of death in this case involved an analysis of the cause or causes which precipitated that event; and that, in this case, this was Huntington’s chorea and not chronic bronchitis and emphysema.
Terminal event
12. The RMA has published Instruments numbered 107 of 1995 and 30 of 2004, respectively, as Statements of Principles for Huntington’s chorea and chronic bronchitis and emphysema. It has not published a Statement of Principles for pneumonia. In recent years, the RMA has, as indicated by Mr Smith, treated the condition of pneumonia as a terminal event. Indeed, this is the case in the Statement of Principles for chronic bronchitis and emphysema which defines death from that condition in the following way:
“death from chronic bronchitis and/or emphysema” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s chronic bronchitis and/or emphysema;
13. It also gives the meaning of “terminal event” as being the proximate or ultimate cause of death and cites a list of such causes which includes pneumonia. We accept as correct the submission of Mr Smith that pneumonia was the terminal event in the death of Mr Magill.
Mrs Magill’s evidence
14. Mrs Magill said that the serious symptoms associated with Huntington’s chorea became apparent only in the last few months of her husband's life. She said that the diagnosis of Huntington’s chorea had not been confirmed and she was not aware of any family history of the condition. She described him as having had an active life but one which was marked by experiencing many chest infections which occurred on a regular basis. She said that he was diagnosed with pneumonia and hospitalised with the condition in July 2004. She said that, during that period, it had been suggested that he be transferred to a nursing home. However, she decided that he should return to their home where she looked after him. She said that, until the day before he went back to hospital, he had been able to sit at the table and eat meals and would have sandwiches for lunch and, for dinner, vegetables and meat or fish. She noted that, after about seven days at home, he began to show symptoms similar to those he had before his first period of hospitalization including a high temperature. She thought that, once again, he had contracted pneumonia. He collapsed at home and was taken by ambulance to hospital on 4 August 2004. She also recalled that a nurse visited the home during the seven days between hospitalizations and had noted that he had a "fruity cough".
Medical evidence
15. The medical evidence includes material from consultant thoracic physician, Dr M. Heiner; from Mr Magill’s treating doctor, Dr P Alroe; from his treating physician Dr N Gray who, as noted above, completed the death certificate; from consultant respiratory physician, Dr D McEvoy; and from the Senior Medical Officer Compensation with the respondent, Dr P Grant.
16. Also in evidence were notes from the Sunshine Coast Private Hospital where Mr Magill was a patient from 15 July 2004 until 27 July 2004 and from 4 August 2004 until his death two days later. This included a chest x-ray report, dated 15 July 2004, which reads:
There is a patchy consolidation in the left mid and lower zone compatible with pneumonia. There are changes of COAD. Heart and mediastinum are normal. There is probably a small left pleural effusion.
17. Dr Gray completed an information sheet on 23 July 2004, which was during the first period in hospital. There, he gave the principal diagnosis as pneumonia. He also noted that Huntington’s chorea was present. In his medical report, dated 15 November 2004, Dr Gray wrote that Mr Magill had a febrile illness and was treated with intravenous antibiotics which caused his fever to resolve. Suggestions of an infective process in the urinary tract were unable to be determined because Mr Magill could not provide a urine specimen to assess his urosepsis. Dr Gray described Mr Magill’s Huntington’s chorea as causing significant cognitive impairment and difficulty in swallowing. In his report of 6 February 2006, he also made reference to dementia, incontinence and choreaform movements. He referred to a review conducted by a speech pathologist, Jo Johnston, during his first period of hospitalization and to the conclusion that Mr Magill was unsafe with solid foods and at significant risk with fluids. The pathologist’s report, dated 22 July 2004, noted that he was at high risk of aspiration of food particles and that his choreaform movements were impacting on his swallowing and eating.
18. Mr Magill returned to his home on 27 July 2004 where he was attended by Mrs Magill until 4 August 2004 when he was again admitted to hospital. Dr Gray said that he was readmitted with aspiration pneumonia which had been complicated by falls at home. In hospital, Dr Gray observed Mr Magill eating and taking thickened fluids. He described great difficulty in swallowing leading to respiratory distress and prolonged coughing. Dr Gray agreed that his underlying COPD would predispose him to more frequent or severe episodes of infection and, in his first report, he expressed the opinion that this was not the primary cause of the pneumonia which caused his death. In cross-examination, Dr Gray conceded that he was not able to exclude completely Mr Magill’s lung condition as a factor contributing to death. Nonetheless, he was of the clear opinion that Mr Magill died as a direct result of aspiration pneumonia which was caused by his end stage Huntington’s chorea.
19. On 14 March 2004, Dr Alroe completed an assessment report in relation to Mr Magill’s chronic bronchitis and emphysema. He conducted lung function tests and noted that Mr Magill experienced dyspnoea on exertion when showering and dressing and that the symptomatic activity level at which symptoms occurred was at the 2-3 METS level. He noted that Mr Magill did not have a chronic productive cough and that he was not on any treatment for the condition. He also reported that approximately half of the symptoms which he had noted were related to Huntington’s chorea. He described Mr Magill as experiencing extreme embarrassment because of Huntington’s chorea, in particular, because of associated incontinence.
20. Dr Alroe also completed reports in support of Mrs Magill’s claim. On 19 May 2005, he wrote:
I would agree that COPD was a contributing factor to Mr Magill’s pneumonia. The main cause/predisposing factor was advanced Huntington’s chorea. There is little support in the records for the assertion that his COPD was advanced and the main predisposing factor. Certainly it could be argued that the cause was multifactorial.
In a second report, dated 14 January 2006, Dr Alroe stated that COPD was a material contributing factor to Mr Magill’s pneumonia. In a further report, dated 6 February 2006, he referred to the examination he conducted on 15 March 2004 and described Mr Magill’s COAD as being “moderately severe”. He wrote that it was not possible to tell whether the pneumonia was aspiration-related or bronco-pneumonia. He continued:
In the setting of considerable weakness and incoordination of swallowing, it is likely that aspiration would contribute. It is also fair to say the pre-existing COAD would make the lungs more vulnerable to community acquired infective pneumonia.
21. After reviewing all of the medical evidence in this matter, Dr McEvoy completed a report, dated 12 July 2006. He noted the results obtained by Dr Alroe in his lung function tests and considered that these did not indicate severe COPD and that the moderate degree of impairment would not normally be associated with a reduction in arterial oxygen tension which was noted on his final hospital admission. He described Mr Magill at that time as being:
…in a severely debilitated condition, unable to care for himself, confined to bed, suffering from pressure sores and having great difficulties with nutrition because of an advanced neurological condition called Huntington’s chorea.
22. Dr McEvoy was of the opinion that any COPD from which Mr Magill suffered would have been relatively minor in nature and would not have contributed in any significant way to his death. He considered that the presence of the symptoms associated with Huntington’s chorea would make it difficult to get any reliable test results. He concluded:
In my view, the main causes of this man’s death from pneumonia were malnutrition with chronic inability to eat and swallow, general debility from secondary malnutrition, progressive debility in a neuromuscular sense from inability to mobilize because of his neurological deficits and finally in this setting, an episode of pneumonia occurring as a spontaneous bacterial infection or as a secondary event following food or fluid inhalation.
23. In his evidence, Dr McEvoy confirmed his opinion that Mr Magill’s death was due to the effects of Huntington’s chorea. He conceded that a person with COPD may be more susceptible to pneumonia. However, he also said that this would be at the “bottom of his list” in Mr Magill’s case and ranked behind his age, general debility and Huntington’s chorea. Nevertheless, he conceded that he was not able to say that there could be no contribution from Mr Magill’s lung condition.
24. Dr Heiner considered that there was contribution to Mr Magill's pneumonia from his chronic bronchitis and emphysema. He said that any person who suffers from the condition is at increased risk of developing pneumonia compared to persons who have normal lung function. He referred to the report of the speech pathologist who recommended that he remain on thin fluids. He said that, in his experience, speech pathologists usually prescribe solid food so it can be "mouthed" to allow better neurological coordination so that uncomplicated swallowing could occur.
25. Dr Heiner referred to the chest x-rays taken on 15 July 2004 which noted a "patchy consolidation in the left mid and lower zone compatible with pneumonia”. He said that, because of the anatomy of the bronchi, it is more likely that a patient lying on his back, seated or in a semi-reposed position who experiences aspiration would develop aspiration pneumonia in the right lung rather than the left. He also said that, if the patient aspirates while lying on his left side, the most likely site of infection would be the left upper lobe. He considered that, only if there was a huge volume of aspirates would the left lower bronchi be affected.
26. Dr Heiner was of the opinion that Mr Magill suffered from severe COAD and that this was reflected in the results obtained by Dr Alroe. These demonstrated that he was symptomatic at the 2-3 METS level. He was referred to the opinion of Dr McEvoy who, after analysing the test results, concluded that they showed a restriction in ventilation and not airflow obstruction. Dr Heiner said that this was an incorrect conclusion. He said that the testing required the person to exhale air for six seconds and that a person who has severe COAD may not be able to do this. He considered that the data provided by Dr Alroe showed both obstruction and restriction. He also said that the lack of presentation of symptoms whilst he was in hospital did not mean that he was not suffering from a severe lung condition. He considered that this could be explained by the condition of Mr Magill who may have been too weak to cough or take a deep breath. Further, Dr Heiner considered that the absence of treatment for Mr Magill’s lung condition was not surprising because, in his experience, COAD often goes undiagnosed and, even when diagnosed, is often not treated properly.
27. Dr Heiner agreed that pneumonia was a common terminal event for persons suffering from Huntington’s chorea. However, he considered that, in a patient with COAD, the process would be hastened because the condition would make it more difficult to expel any aspirated food.
28. On 25 January 2005 and 15 February 2005, Dr Grant completed reports relating to the cause of Mr Magill’s death. In his first report, he noted the opinion of Dr Gray and expressed the opinion that the relatively advanced state of Huntington’s chorea was sufficient in itself to cause aspiration pneumonia. He also noted Dr Alroe’s opinion that chronic bronchitis and emphysema was relatively minor and also his observation that the presence of Huntington’s chorea prevented an accurate assessment of spirometry. In a diagnostic cardiorespiratory worksheet attached to this report, Dr Grant considered that the presence of Huntington’s chorea during testing probably led to an over-estimate of the severity of Mr Magill’s lung condition. In his second report, he indicated that he had reviewed the clinical notes from Mr Magill’s treating doctor and had seen limited entries to suggest that Mr Magill’s lung condition was an active condition during 2004. He also noted that there was no reference to medication which one might expect to see prescribed if there was significant chronic lung disease. Dr Grant concluded that Mr Magill’s chronic bronchitis and emphysema did not appear to make a material contribution to his death.
Conclusion
29. The medical reports of Dr McEvoy, Dr Gray and Dr Grant attribute Mr Magill’s terminal pneumonia to Huntington’s chorea. When pressed in cross-examination, Dr McEvoy and Dr Gray conceded that a role for chronic bronchitis and emphysema could not be completely excluded. In so conceding, Dr McEvoy considered that it would be at the bottom of his list and Dr Gray said that medicine was not a precise science. As we understand the whole of their evidence, they maintained the opinion as expressed in their respective reports.
30. Dr Alroe did not give oral evidence and we had some concerns about his medical reports. When conducting an examination and undertaking tests in March 2004, the description he gave is not consistent with the condition presenting in a severe form. Dr Alroe noted that no treatment was being undertaken and, when assessing him as manifesting symptoms at the 2-3 METS level, he attributed half of the symptoms to Huntington’s chorea. In his report of 19 May 2005, he gave limited support for a causal role by Mr Magill’s lung condition in his death. On 6 February 2006, he described the condition as being “moderately severe”. In his final report, he described Mr Magill’s lungs as being more vulnerable to community-acquired infective pneumonia because of his lung condition.
31. Dr Heiner was of the opinion that Mr Magill suffered from a severe lung condition. That was not the opinion of Dr Gray, Dr McEvoy and Dr Grant. Significantly, it was not the opinion of his treating doctor, Dr Alroe. We have noted Dr Heiner’s reference to the failure, in many cases, to properly diagnose such conditions or to treat them properly when they have been identified. However, there is no suggestion in Mr Magill’s case that there was inappropriate diagnosis or incorrect treatment. Dr Heiner expressed surprise that a person with significant Huntington’s chorea would be discharged from hospital with a treatment management regimen which included the taking of thin fluids. The evidence shows that this was done in Mr Magill’s case because of the report of the speech pathologist. That report provides for the following measures to be carried out in the management of Mr Magill:
Commence a fully itemized diet to minimize length of mealtimes, increase amount of food tolerated and reduce potential risk of aspiration.
Continue thin fluids but ensure chin is tucked towards chest before swallowing
The need for thickened fluids requires monitoring.
Monitor amount of food and fluids
Mr Magill should remain upright after meals for 20 minutes.
When one considers the whole of that report, it is clearly the case that great caution was to be exercised in the administration of food and fluids to him.
32. The x-ray report which was completed when Mr Magill first went to hospital identified a patchy consolidation in the mid and lower zone of the left lung. Dr Heiner’s opinion was that aspiration would be more likely to be in the right lung. However, he also envisioned a situation where the left lung could be implicated.
33. Dr Heiner was critical of Dr McEvoy’s observations of the lung function tests conducted on Mr Magill. These criticisms were put to Dr McEvoy and he gave clear evidence of relatively minimal COAD. He based this on an explanation of the ratio of FEV1/ FVC as a measure of obstructive airways disease. He said that there could be an overall reduction in both measures due to factors such as Mr Magill’s age and infirmity. However, he said that maintenance of the ratio of the two figures confirmed minimal obstruction.
34. Dr Heiner appeared to be relying heavily on the background of symptoms provided to him by Mrs Magill. She described a long history of frequent bouts of chronic bronchitis and emphysema. That history may well be correct but it does not support the presence of the condition with any level of severity of the time of his admission to hospital in August 2004. We also noted inconsistencies in the evidence of Mrs Magill, in particular, in relation to the capacity of her husband to be sufficiently mobile to take meals, including sandwiches and vegetables with meat or fish, at the table. That level of mobility is inconsistent with the presence of pressure ulcers over Mr Magill’s sacrum as described in the hospital notes. It also conflicts with Dr Gray’s observations of a man who had great difficulty eating and the description provided by Mrs Magill bears little relationship to the management regimen nominated by the speech pathologist.
35. We have concluded that Dr Heiner’s opinion should be rejected. The criticisms and observations he made have been answered and explained by Dr McEvoy, Dr Gray and Dr Grant and we are satisfied that their evidence should be accepted. In particular, we consider it to be significant that Dr Gray had the advantage of observing and treating Mr Magill in his final weeks. On the basis of that evidence, we find that it is more probable than not that the cause of the terminal event of pneumonia in Mr McGill’s case was brought about by the debilitating and worsening effects of his Huntington’s chorea. It follows that we are reasonably satisfied that the kind of death in this matter was pneumonia resulting from Huntington’s chorea.
Relationship to Service
Procedure: paragraph 8(1)(b) of the Act
36. The procedure to be adopted in determining whether or not a particular condition, Huntington’s chorea, which caused death arose out of, or was attributable to, any eligible war service that Mr Magill rendered was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following terms:
(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.
Step 1: - hypothesis
37. The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. Mr Anderson conceded that there was no hypothesis that Huntington’s chorea meets any of the causal criteria in the Act. Nevertheless, we have proceeded with the remaining Deledio steps.
Step 2: - Statement of Principles
38. The second step requires identification of the relevant Statement of Principles. For Huntington’s chorea, this is Instrument No. 107 of 1995.
Step 3: - reasonableness of the hypothesis
39. The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of subsection 120(3) of the Act. This step is not concerned with proof of the applicant’s claim. Rather, it is concerned with the question of whether there is some material which calls for a determination under subsection 120(1) of the Act: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 415. This requirement will be met if an hypothesis fits or is consistent with the template provided by a relevant factor in the Statement of Principles. There is but one factor for Huntington’s chorea. It is the inability to obtain appropriate clinical management for Huntington’s chorea. Mr Magill’s condition was first described in 1997 by Dr G Jayasinghe. Clearly, this was many years after the end of eligible service so that there is no material which points to a service-related inability to obtain appropriate clinical management for Huntington's chorea. This means that the material does not point to the requirements of the Statement of Principles and that, therefore, no reasonable hypothesis of a relationship to service is raised in this matter.
Step 4: - Is death war-caused under paragraph 8(1)(b) of the Act?
40. As no reasonable hypothesis is raised in this matter, this final step does not arise. In that situation, Mr Magill’s death from the terminal event of pneumonia as caused by Huntington’s chorea is not war-caused under paragraph 8(1)(b) of the Act.
Procedure: paragraph 8(1)(f) of the Act
41. A note to section 8 of the Act sets out the effect of paragraph (1)(f). It is that, if the veteran died from an injury or disease that has already been determined by the Commission to be war‑caused, the death is to be taken to have been war‑caused; there is no requirement to relate the death to eligible war service rendered by the veteran; and section 120A of the Act does not apply. This means that the procedure outlined above from Deledio does not apply. Chronic bronchitis and emphysema has been determined to be war-caused under section 9 of the Act. Accordingly, Mr Magill‘s death will be war‑caused if chronic bronchitis and emphysema is an injury or disease from which he died.
42. In applying paragraph 8(1)(f) of the Act, the required connection is with the accepted condition and not Mr Magill’s service. Therefore, the standard of proof in subsection 120(1) of the Act is not applicable and the determination is to be made in accordance with subsection 120(4) thereof which is referred to above (para 8 of these reasons) and see Hammond and Repatriation Commission [2003] AATA 311 (at para 51). In considering the disease “from which” Mr Magill died, the causal criteria in section 8 of the Act are not relevant and the Tribunal must be reasonably satisfied of a more direct relationship: see Shaw and Repatriation Commission [2005] AATA 354 where reference was made to Repatriation Commission v Hayes (1982) 43 ALR 216 at 222. On the basis of our findings above, we are reasonably satisfied that chronic bronchitis and emphysema was not a condition from which Mr Magill died and his death can not be taken to be war-caused under paragraph 8(1)(f) of the Act.
Decision
43. The Tribunal affirms the decision under review.
I certify that the 43 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Mr RG Kenny, Member and Dr G J Maynard, Member
Signed: Michelle Brazier
Legal Research Officer
Date of Hearing 8 December 2006
Date of Decision 9 January 2007
For the Applicant Mr A Anderson, of Counsel
Terrence O’Connor, Solicitor
For the Respondent Mr M Smith, Departmental Advocate
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