McLoughlin and Repatriation Commission
[2006] AATA 937
•3 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 937
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/16
VETERANS' APPEALS DIVISION )
Re Hazel McLoughlin Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member
Date3 November 2006
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision that the death of the veteran, Felix McLaughlin, was war-caused in accordance with section 8 of the Veterans Entitlement Act 1986 and that the applicant is entitled to receive a pension under section 13 of that Act with effect from and including 1 September 2003.
. .........[Sgd]..........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS –widow’s pension - death of veteran from cerebrovascular accident - application of Statements of Principles – service-related alcohol consumption - relationship to eligible war service - death war-caused – decision set aside
Administrative Appeals Tribunal Act 1975 ss, 37
Veterans’ Entitlements Act 1986 ss 7, 8, 11, 14, 120(1), 120(3), 120(4), 120A
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Keeley (2000) 98 FCR 108; (2000) 60 ALD 401; (2000) 31 AAR 150; [2000] FCA 532
Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609; (2001) 33 AAR 370; [2001] FCA 1194
East v Repatriation Commission (1987) 16 FCR 517; (1987) 74 ALR 518; (1987) 12 ALD 389; (1987) 6 AAR 492REASONS FOR DECISION
Mr RG Kenny, Member Background
1. Felix Francis McLoughlin (the veteran) served in the Australian Army during World War II from 25 September 1941 until 12 April 1943. That service constitutes eligible war service, in the form of operational service in accordance with sections 7 and 6A, respectively, of the Veterans’ Entitlements Act 1986 (the Act). Mr McLoughlin died on 8 September 1978 and, on 1 December 2003, Hazel McLoughlin, his widow and a dependant, as those terms are defined in section 11 of the Act, lodged a claim, under section 14 of the Act, for a pension 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 18 December 2003 and, in turn, by the Veterans’ Review Board (the Board) on 14 October 2005. Mrs McLoughlin now seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. Mrs McLoughlin was unable to attend the hearing because of her health. She was represented by Mr Anderson of counsel. The respondent was represented by Mr J Kelly. Material available to the Tribunal included the documents (the T documents) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Issues and Legislation
3. 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, and relevant in this matter is paragraph 8(1)(b) of the Act which provides that the death of a veteran shall be taken to have been war-caused if that death arose out of, or was attributable to, any eligible war service rendered by the veteran.
4. Where, as in this case, the veteran rendered eligible war service in the form of operational service, the standard of proof applicable to the determination 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.”
5. The operation of that provision is affected by the terms of subsection 120(3) of the Act and 120A 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
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;…
(2) …
(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.
(4) …”
6. 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 those provisions, it is necessary to determine the kind of death applicable to the veteran. The standard of proof applicable to that determination is provided in subsection 120(4) of the Act and this requires that such matters be determined to the Tribunal’s reasonable satisfaction which imports the civil standard of proof: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
Kind of Death
7. Mr McLoughlin was aged 60 years at the time of his death. His death certificate, dated 20 September 1978, referred to intracerebral haemorrhage and hypertension as the cause of death. Mr Anderson submitted that the direct cause of Mr McLoughlin’s death was cerebrovascular accident. Mr Kelly conceded that this was so and I am reasonably satisfied that this concession was properly made.
Post Traumatic Stress Disorder
8. It will be seen below that Mr Anderson relies on the stressful aspects of Mr McLoughlin’s service as being causally associated with post-service alcohol consumption which, in turn, was causally associated with Mr McLoughlin’s cerebrovascular accident. Although not pivotal to his submissions, a matter raised in the evidence led by Mr Anderson related to whether Mr McLoughlin suffered from post traumatic stress disorder as a result of his experiences at Milne Bay. Mr McLoughlin served at Milne Bay where he was based from 7 October 1942 until he was repatriated to Brisbane with malaria on 17 November 1942. He arrived at Milne Bay several weeks after the battle between Australian and Japanese forces which took place in August and September 1942.
9. Dr Colin Brennan, psychiatrist, completed a report, dated 8 May 2006, which was based upon documentary material relating to Mr McLoughlin. This included statements by Mr and Mrs McLoughlin’s daughters - Joan Owens and Valmai Gunst, and their grandson - Mr Christopher Stevens. Dr Brennan also perused the service records of Mr McLoughlin and various histories of the circumstances that existed at Milne Bay. He considered that, even though the Japanese troops had moved away several weeks before Mr McLoughlin arrived, there would have been continuing “mopping up” exercises as well as the need to bury dead bodies and body parts. He conceded that he did not know what actual duties Mr Mcloughlin had been required to perform. He also noted that, before being shipped to Milne Bay, Mr McLoughlin had been detached from his own parent unit with which he had trained when first joining the army. Based on what he had read, Dr Brennan wrote in his report that Mr McLoughlin had developed at least some components of chronic, partial post traumatic stress disorder. In his oral evidence, he said that his clinical opinion was that he suffered from post traumatic stress disorder. He went on to say that this would have caused him to develop a very significant, severe chronic alcohol abuse and dependence.
10. For post traumatic stress disorder, the relevant Statement of Principles published by the RMA is Instrument No 3 of 1999 as amended by Instrument No 54 of 1999. It lists six criteria, all of which need to be met before a diagnosis of post traumatic stress disorder can be made. The first two of these are:
Kind of injury, disease or death
2. (a)...
(b) For the purposes of this Statement of Principal “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from the DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.
11. There is no evidence that Mr McLoughlin experienced the kind of event identified in paragraph A(i) of that definition or experienced a response described in paragraph A(ii) thereof. Dr Brennan said that it was Mr McLoughlin’s whole experience at Milne Bay which would have provided the triggering mechanism for the purposes of paragraph A. However, factor A requires a specific event which is persistently experienced in the manner described in paragraph B of the definition. Dr Brennan did not consult with Mr McLoughlin and his opinion is based on speculation as to what Mr McLoughlin may have experienced at Milne Bay. On the material before me, factor A of the definition is not met in this case and, therefore, I am reasonably satisfied that Mr McLoughlin did not suffer from post traumatic stress disorder.
Cerebrovascular Accident
12. The procedure to be adopted in determining whether or not a particular condition, in this case cerebrovascular accident, arose out of, or was attributable to, any eligible war service that a particular veteran rendered, was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92 in the following terms:
"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 hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused ... 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."
13. The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. Mr Anderson submitted that Mr McLoughlin developed a service-related alcohol consumption habit which led to his cerebrovascular accident. Alternatively, he submitted that the service-related alcohol consumption led to the development of hypertension which contributed to the cerebrovascular accident. I accept that these constitute hypotheses of a connection to service.
14. The second step requires identification of the relevant RMA Statement of Principles. For cerebrovascular accident, this is Instrument No. 52 of 1999 as amended by Instruments No 30 of 2002 and No 57 of 2003. For hypertension, this is Instrument No. 35 of 2003 as amended by Instrument No 3 of 2004.
15. The third step requires consideration of whether either of the hypotheses raised is a reasonable one. This requirement will be met if either hypothesis fits the template provided by a relevant factor in clause 5 and associated definition in clause 8 of the Statements of Principles. For cerebrovascular accident, these read:
5…
(a) the presence of hypertension before the clinical onset of cerebrovascular accident; or…
(e) regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident; or…
8…
hypertension means:
(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg and/or where the diastolic reading is greater than or equal to 90mmHg; or
(b) where treatment for hypertension is being administered.
alcohol (contained within alcoholic drinks) is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink.
16. At the time of the claim, the Statement of Principles for hypertension was Instrument No. 35 of 2003. It contained the following factor in clause 5 and definition in clause 8:
5…
(b) consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension; or…
8…
alcohol is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink.
17. That Statement of Principles was amended by Instrument No. 3 of 2004 which listed the alcohol factor in clause 5 as:
(b) consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol.
18. Where a Statement of Principles, which was in force at the date of the initial claim, has been amended or replaced by a subsequent Statement of Principles, the matter is to be determined in accordance with whichever of the Instruments is more favourable to the applicant: see Repatriation Commission v Keeley (2000) 60 ALD 401 at 415, 422 and Repatriation Commission v Gorton (2001) 65 ALD 609.
19. If the hypotheses under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition is war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Reasonableness of the Hypothesis
20. Mrs McLoughlin met the veteran before the war as they were neighbours in Brisbane. She was some six years younger than him. She had been friends with his younger sister and was aware that no alcohol was permitted into that family’s home. She and Mr McLoughlin married on 18 September 1948. On 10 March 2005, Mrs McLoughlin completed an alcohol questionnaire in relation to the veteran’s alcohol consumption. It was completed with the assistance of Mrs Dight, a representative from Legacy, and in the presence of Mrs McLoughlin’s two daughters. There, Mrs McLoughlin wrote that the veteran did not consume alcohol before the war and that she had been told by the veteran that he started to consume alcohol during the war. She wrote that he continued to consume alcohol on a regular basis after the war. She described his daily habit as involving the consumption of several glasses of Brandivino wine during the day, one to two large bottles of beer in the evening and one or two glasses of stout at night. She also indicated that it was her understanding that he began to consume alcohol because of “war stress”.
21. Evidence was given by Mrs Owens and Mrs Gunst. Mrs. Owens was 22 years of age when her father died. She described a close relationship with him and she was aware that he did not participate in service organisations such as the RSL and did not take part in military parades such as occur on ANZAC day. She recalled that he suffered from sleep disturbances which came to be known by the family as “one of dad’s turns”. She said that he would become agitated if questioned about his wartime experiences and would deny that he had seen anything except to state that he had merely been a “cook”. She also recalled that, whenever she raised matters relating to service with him, he would have one of his “turns” during the following evening. She confirmed that his alcohol consumption was as described by her mother in the questionnaire but added that he also would visit the local hotel on some evenings. She was not aware of what he consumed at those times. Mrs Gunst is the younger of the two daughters. She confirmed that the level of alcohol consumption was as detailed by her mother in the questionnaire.
22. Evidence was also given by Mr and Mrs McLoughlin’s grandson, Mr Stevens. He was six years of age when the veteran died. He said that he spent three or four days per week with his grandfather while he was at work driving a truck. He could remember being told stories about his wartime experiences and recalled that his grandfather would become quite distressed. He was unable to give any detail of incidents related to him but was aware that his grandfather had a deep loathing of Japanese people.
23. Other evidence relating to Mr McLoughlin’s alcohol consumption was contained in a letter, dated 12 November 1947, which was written by Mr McLoughlin to the applicant before they were married. It refers to a range of matters including a reference to a party that Mr McLoughlin had attended where ten gallons of beer was consumed. He recounted that, after the party which lasted until 2.30am, he and some friends went fishing and he said that the consumption of beer did not stop them from “getting a bag full of crabs”.
24. Based on the definitions given for alcohol in the Statements of Principles noted above, the requirement for cerebrovascular accident is 25 standard drinks per week for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident. For hypertension, it is an average of at least 20 standard drinks per week. The material before me points to those requirements being met and this was conceded by Mr Kelly.
25. Clause 4 of each of the Statement of Principles noted above lists the requirement that the identified factor set out in clause 5 “must be related to any relevant service rendered by the person”. In this matter, the only material which points to a connection of post-service alcohol consumption to Mr McLoughlin’s service are the references in the alcohol questionnaire which reflect, it was submitted, what Mrs McLoughlin was told by the veteran. These are that he started “during the war” because of “war stress”. That is consistent with the requirements in the Statements of Principles.
26. As there is material which points to the required level of alcohol and material which points to a relationship with service, this means that the material before me fits the template of each part of factor 5(e) in the Statement of Principles for cerebrovascular accident. Mr McLoughlin was hypertensive at the time of his death. Medical records completed in 1943 do not include any reference to elevated blood pressure readings. That points to the development of hypertension in post service years. The material relating to alcohol use points to the requisite level of alcohol consumption throughout his post-service years. This means that the material before me fits the template of each part of factor 5(b) in each of the Statement of Principles for hypertension. Accordingly, it raises two reasonable hypotheses of a causal relationship between Mr McLoughlin’s death and his service.
Is Death War-caused?
27. This requires a consideration of the fourth of the Deledio steps and death will be war-caused unless I am satisfied beyond reasonable doubt that such is not the case.
28. There are some difficulties with the evidence in relation to Mr McLoughlin’s service. He served in Australia for almost 12 months before he went to Milne Bay and there is no evidence concerning his activities during that period. He was in Milne Bay for only 5 to 6 weeks. This was after the Japanese had left and all that is known about his activities in that period is that he was engaged in a supply unit and that he contracted malaria. He was discharged medically unfit and, again, there are no details of his final period of service. Apart from that of Mrs McLoughlin in the alcohol questionnaire, there is no evidence of alcohol consumption before, during or after the war until November 1947 when he wrote a letter to Mrs McLoughlin. There is evidence that he was consuming alcohol at that time, at the time of his marriage in 1948 and thereafter until his death. Mr Kelly referred to the age difference between Mr and Mrs McLoughlin and to the relevance of that to the extent that Mrs McLoughlin would be aware of the veteran’s consumption habits before his service. However, she was 18 when Mr McLoughlin entered the army and both of her daughters were able to say that Mrs McLoughlin described his family as being against alcohol consumption. I accept the submission of Mr Anderson that this is evidence that Mr McLoughlin did not consume alcohol before his army service and, on that evidence, I cannot be satisfied beyond reasonable doubt that Mr McLoughlin was not a non-consumer of alcohol before his army service.
29. The only evidence of the commencement of Mr McLoughlin’s alcohol consumption is that of Mrs McLoughlin. Mr Kelly questioned Mrs Owen and Mrs Gunst about the manner in which the alcohol questionnaire was completed. While I accept that there was discussion between Mrs McLoughlin and the Legacy representative at the time, their evidence was that the recorded responses were those of their mother. Mr Kelly submitted that there was no evidence on which a finding of a causal relationship to service can be based. However, Mrs McLoughlin’s responses bespeak both a temporal connection (during the war) and a causal connection to service (war stress). This is not a situation where previous inconsistent statements have been made by either Mr or Mrs McLoughlin or anyone else about alcohol consumption which might cast doubt on the accuracy of the alcohol questionnaire that Mrs McLoughlin completed. Clearly, it would have been preferable if Mrs McLoughlin’s evidence had been tested at the hearing. However, I accept the evidence given by Mrs Owens and Mrs Gunst that their mother’s health was such as to prevent her from giving oral evidence at the hearing.
30. As I have determined above, the evidence is not sufficient to suggest that Mr McLoughlin suffered from post traumatic stress disorder and there is no material before me that he was suffering from any other psychiatric condition which might manifest itself in his weekly alcohol consumption. However, unlike some others, it is not a precondition of any of the Statements of Principles noted above that alcohol abuse or dependence be present and, indeed, it was not contended that Mr McLoughlin suffered from either of these conditions. The relevant Statements of Principles require only a threshold quantity of alcohol to have been consumed within a particular time-frame.
31. I have noted the evidence of Dr Brennan about the difficulties facing those serving in Milne Bay even after the Japanese forces had withdrawn. I also note that Mr McLoughlin was afflicted with a serious health problem on service. Dr Brennan gave evidence that this would have increased Mr McLoughlin’s level of vulnerability in coping with stress. This is consistent with the observation made by the veteran to Mrs McLoughlin that he commenced consumption during the war because of war stress.
32. Sub-section 120(6) of the Act makes it clear that no onus of proof is borne by Mrs McLoughlin in these proceedings. However, in practical terms, it is in the interests of an applicant to lead evidence of the matters on which reliance is placed to show that a particular condition is causally associated with service: see East v Repatriation Commission (1987) 12 ALD 389 at 404-405. In this matter, this has been done and I accept Mrs McLoughlin’s evidence that the veteran related relevant information to her about his alcohol consumption and that this is what she recorded in the alcohol questionnaire.
33. On all the evidence before me, I am not satisfied beyond reasonable doubt that Mr McLoughlin’s post-service alcohol consumption was not related to his service or that this led to the cerebrovascular accident which caused his death. Also, I am not satisfied beyond reasonable doubt that Mr McLoughlin’s post-service alcohol consumption did not lead to the development of hypertension which contributed to his cerebrovascular accident. Accordingly, I am not satisfied beyond reasonable doubt that his death from that condition was not war-caused in accordance with section 8 of the Act.
Decision
34. The Tribunal sets aside the decision under review and substitutes its decision that that the death of the veteran was war-caused in accordance with section 8 of the Act and that the applicant is entitled to receive a pension under section 13 of the Act with effect from and including 1 September 2003.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Michelle Brazier
Legal Research OfficerDate of Hearing 1 September 2006
Date of Decision 3 November 2006
Counsel for the Applicant Mr Anderson
For the Respondent Mr J Kelly, Departmental Advocate
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