Munday and Repatriation Commission
[2008] AATA 398
•15 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 398
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N 2005/0832
VETERANS’ APPEALS DIVISION )
Re CICELY BERYL MUNDAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J D Campbell, Member
Date15 May 2008
PlaceSydney
Decision The decision under review is affirmed.
..................[sgd]...................
M D Allen
Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – review of decision of veterans’ review board affirming prior determination by respondent that applicant’s death was not attributable to war service – whether material raises reasonable hypothesis connecting disease suffered by applicant with circumstances of service – to be reasonable, hypothesis must be pointed to or supported and not merely left open as a possibility – hypothesis must conform to a statement of principles – civil standard of proof – neither party bears any onus of proof – evidence said to establish a hypothesis connecting disease suffered with circumstances of service disproved beyond reasonable doubt – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 sections 6A, 120A, 120(1), 120(3), 120(4) and120(6)
CASE LAW
Repatriation Commission v Cooke (1998) 90 FCR 307
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Bey (1997) 79 FCR 364
East v Repatriation Commission 1987) 16 FCR 517
REASONS FOR DECISION
15 May 2008 Senior Member M D Allen
Dr J D Campbell, Member
1. By application made the 28th day of June 2005, the Applicant sought review of a decision by the Veterans’ Review Board, that affirmed a prior determination by a delegate of the Respondent, that the death of her late husband, Ernest William Munday, was not attributable to his war service.
2. As the deceased veteran had “operational service”, as that term is defined in section 6A of the Veterans’ Entitlements Act 1986, the standard of proof in this matter is that mandated by the subsections 120(1) and (3) VEA.
3. Subsections 120(1) and (3) VEA provide that the death of a veteran shall be accepted as being war-caused, unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the veteran with the circumstances of the service rendered by him. Pursuant to section 120(A) VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called Statement of Principles issued by the Repatriation Medical Authority.
4. In Repatriation Commission v Cooke (1998) 90 FCR 307, the Full Court of the Federal Court pointed out that, whereas the beyond reasonable doubt standard of proof prescribed by ss 120(1) VEA applied to those facts necessary to establish the connection with operational service, other facts need only be established to the Tribunal’s reasonable satisfaction. The Full Court decision of Benjamin v Repatriation Commission (2001) 70 ALD 622 established that the Tribunal must be reasonably satisfied as to the cause of a veteran’s death, or the diagnosis of any injury or disease suffered by the veteran.
5. Repatriation Commission v Smith (1987) 15 FCR 327 is authority for the proposition that the term “reasonable satisfaction” in ss 120(4) VEA equates to the civil standard of proof, that is to say, proof on the balance of probabilities.
6. Subsection 120(6) VEA provides neither party to this review bears any onus of proof.
7. The deceased died on the 20th April 2000, the certified cause of death being:
1. (a) Bronchopneumonia
(b) Transient Ischemic attack – cerebral vascular disease
2. Dementia
8. The medical evidence before us clearly establishes that the cause of death as shown on the death certificate is wrong. It is highly unlikely that the deceased did have cerebral vascular disease, as opposed to cerebral and cerebellar atrophy due to his dementia. The cause of death was bronchopneumonia following the ingestion of food due to an inability to swallow caused by his dementia. In other words, the effective cause of the veteran’s death was dementia.
9. The real question in these proceedings concerns the nature and cause of the deceased’s dementia. The Respondent submits that the deceased suffered from Alzheimer’s disease and, if this is accepted, then the deceased does not meet any of the factors in Instrument No. 17 of 2001, the SoP relating to Alzheimer’s disease.
10. For her part, the Applicant submits that the deceased’s dementia was either alcoholic dementia or a combination of Alzheimer’s disease and alcoholic dementia. If this is accepted, then the Applicant argues that a reasonable hypothesis exists, connecting the deceased’s dementia with war service by way of a war-caused habit of drinking alcohol.
11. The Applicant met the deceased in 1955. At that time he was drinking alcohol. After their marriage, the Applicant and the deceased moved to Dubbo, where the deceased had lived prior to enlistment in the army at the age of 21. At Dubbo, the deceased was employed in his trade of a carpenter.
12. The Applicant described the deceased’s drinking habits, and this evidence was corroborated by her eldest daughter, Mrs Van Volten. Apparently, the deceased would finish work around 4.00 pm and then go to a hotel with friends, coming home at about 6.00 or 6.30 pm for dinner. He might then have one beer while dinner was being prepared. On Saturdays, he would go to the hotel around 11.00 am and return for lunch. He would then have some drinks before dinner. On Sundays he would have some drinks at home. He only ever drank beer.
13. After he retired from work, the deceased commenced to drink more. In 1997, liver function tests were found to be elevated, and the Applicant stated that on the advice of the deceased’s general practitioner she then bought him light beer. This apparently had a beneficial effect, because liver function tests on 14 October 1999 gave normal results.
14. In the interim, the deceased had started to exhibit the signs and symptoms of dementia. Mrs Van Volten gave evidence that she had noticed a change in her father after she had returned to Australia in 1990. Later, she noticed a further change in his condition in that he was neglectful of his personal hygiene and appearance and was starting to drink in the mornings, whereas previously, even after retirement, he did not drink until the afternoon.
15. Whereas it is not possible to state the time of clinical onset of the deceased’s dementia, Dr Gibson, consultant physician, on 29 January 1998, stated that the deceased’s dementia had been slowly progressing over the last 12 months. Dr Gibson opined that the dementia was due to Alzheimer’s disease.
16. In the opinion of neurologist Dr Fitzsimons, who was called by the Applicant, the deceased’s dementia was either caused by his alcohol intake or alcohol toxicity, caused an insult to neurons which, with the onset of another dementing process i.e. Alzheimer’s disease, resulted in a clinical presentation with dementia significantly earlier and more serious than otherwise would have been the case.
17. Dr Fitzsimons was, however, unable in cross-examination to specify what doses of alcohol would be required to achieve this effect, and did concede that alcoholic dementia would not progress upon the cessation of drinking. She concluded her second report to the Applicant stating as to her opinion “I acknowledge the uncertainties of this statement”.
18. Professor Lance accepted that alcohol consumption could possibly have played a part in the cerebellar atrophy, which was demonstrated on CT scans, but pointed out that cerebellar atrophy does not lead to dementia, although it is associated with all forms of dementia. In the deceased’s case, his history was a very typical history of Alzheimer’s disease.
19. In the opinion of Professor Lance, up to 1997, the deceased was apparently functioning normally, then his dementia progressed. His alcohol intake reduced, at the suggestion of a general practitioner when light beer was substituted for normal beer, and in October 1999 his liver function tests were normal. Despite this, his dementia progressed, which should have reversed somewhat with the cessation of heavy drinking. That the deceased’s dementia progressed was evidence that it was Alzheimer’s disease unaffected by alcohol.
20. We note that specialist physician Dr Gibson, of the Lourdes Hospital Memory Disorder Clinic, also opined that the deceased had Alzheimer’s disease.
21. Given the diagnosis by the specialist at the hospital, at which the deceased was managed for his dementia, and the opinion of Professor Lance, plus the concessions made by Dr Fitzsimons, we are not reasonably satisfied that alcohol played any part in the deceased’s dementia. We are further satisfied, for the reasons given above, that the correct diagnosis of the deceased’s condition was Alzheimer’s disease.
22. There is no material before us which would conform to the SoP for Alzheimer’s disease, therefore no reasonable hypothesis exists to connect the death of the deceased with his war service. The decision under review will, therefore, be affirmed.
23. Even if we had been reasonably satisfied that the alcohol caused or contributed to the deceased’s dementia, we are not satisfied that a reasonable hypothesis has been raised with respect to the deceased’s alcohol habit and service.
24. Little is known of the deceased’s antecedents. The Applicant met the deceased in 1955, some nine years after his discharge from the AIF. There was no evidence before us as to how the deceased spent his time before enlistment in the army. All that was before the Tribunal was that he was aged 21, at the time of enlistment, and an apprentice carpenter by trade.
25. In a statement the deceased’s sister stated she did not remember the deceased drinking before the war. This does not mean, however, that the deceased did not drink alcohol. As to his war service, we accept that as a member of the 2/1 Australian Pioneer Battalion, he most likely would have been involved in combat against the enemy following the landing of Australian forces at Balikpapan.
26. The Applicant gives estimates of the amounts the deceased was drinking during his military service. Even in her statement to the Tribunal the Applicant (who met the deceased in 1955) did not reveal how she obtained this information. According to her evidence, and the evidence of Mrs Van Volten, the deceased would not discuss his military service. Further, it is unlikely that the deceased had access to alcohol whilst on active service in Balikpapan.
27. Thus, all that is known of the deceased is that he saw active service towards the end of the war, and that when the Applicant met him in 1955, he was drinking alcohol. There is some reference to a friend who “went missing”, but the statement of the deceased’s sister refers to that friend being a member of the RAAF who disappeared over in Germany.
28. As pointed out in Repatriation Commission v Bey (1997) 79 FCR 364 at 372, while a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East v Repatriation Commission (1987) 16 FCR 517 states, “be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker …”. The Court went on to state “a reasonable hypothesis involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”
29. In this matter, we are satisfied that the material does no more than leave open, as a possibility, that the deceased’s habit of drinking alcohol, particularly as a regular occurrence after finishing his work as a carpenter for the day, was attributable to his war service. As the matter is left open, no reasonable hypothesis has been raised, and so we are deemed to be satisfied, beyond reasonable doubt, that the death of the deceased is not connected with his war service.
30. For the above reasons also the decision under review is affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Allen and Dr J D Campbell
Signed: [sgd] [sgd] .....................................................................................
Mwela Kapapa, AssociateDate/s of Hearing 5 May 2008
Date of Decision 15 May 2008
Counsel for the Applicant Ms E Wood
Solicitor for the Applicant Legal Aid Commission
Solicitor for the Respondent Sparke Helmore Lawyers
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