NAIDA BLAKE and REPATRIATION COMMISSION
[2009] AATA 821
•26 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 821
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2361
GENERAL ADMINISTRATIVE DIVISION ) Re NAIDA BLAKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Dr J Campbell, MemberDate26 October 2009
PlaceSydney
Decision The decision under review is set aside and in its place the Tribunal decides that Mrs Blake is entitled to a war widow’s pension with effect from 18 April 2007.
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Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – War widow’s pension – Claim for – Whether veterans’ death war-caused – Statement of Principles – Cerebrovascular accident – Hypothesis raised that veteran’s accepted skin condition caused stress and increased alcohol consumption – Whether drinking related to service - Held death war-caused – Decision set aside
Veterans’ Entitlements Act 1986, ss 6A, 8, 196B, 120, 120A
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Kattenburg and Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Deledio (1998) 83 FCR 82
Statement of Principles concerning Cerebrovascular Accident (No 51 of 2006)
Statement of Principles concerning Hypertension (No 35 of 2003)
Statement of Principles concerning Non-melanotic Malignant Neoplasm of the Skin (No 81 of 2007)
REASONS FOR DECISION
26 October 2009 Senior Member Jill Toohey
Dr J Campbell, MemberBackground
1. Walter Blake served in the Australian Army in New Guinea from 2 January 1942 to 2 July 1946. He died on 8 March 1976. His widow, Naida Blake, contends that his operational service caused, or contributed to, his death and that she is entitled to a war widow’s pension.
2. Mrs Blake applied for a war widow’s pension on 18 July 2007. The Repatriation Commission (the Commission) refused her application and the Veterans Review Board (VRB) affirmed that decision. She now seeks review by this tribunal.
3. Mrs Blake has made a similar application on two previous occasions. Her first application was refused by the Commission in May 1998, on review by the VRB in September 1999, and on review by this tribunal in January 2001. Her second application was refused by the Commission in June 2003. Mrs Blake sought review of that decision by the VRB but withdrew her application in early 2004.
4. The material from the proceedings in 2001 is before the Tribunal. In addition, Mrs Blake has submitted a brief written statement in support of her current application and she gave oral evidence before the Tribunal. The only additional material submitted by the Commission is a report of the Medical Board dated 27 August 1942. We note that the Statements of Principles relevant to the earlier proceedings have been amended.
Mrs Blake’s contentions
5. Mrs Blake contends that the following factors caused, or contributed to, her husband’s death in a material way:
firstly, that Mr Blake’s service contributed to an increase in his alcohol consumption, not directly, but because he was worried about skin cancers contracted on service and would drink more before and after his regular checkups; and
secondly, that during operational service he contracted a streptococcal throat infection which led to kidney disease which in turn led to the hypertension that was a factor in his stroke.
Issue
6. There is no dispute that Mr Blake’s service constitutes operational service within the meaning of s 6A of the Veterans Entitlements Act 1986 (the Act). Nor is there any dispute about his kind of death; the Tribunal has no reason to question Mr Blake’s death certificate which gives his cause of his death as: “(a) intracerebral haemorrhage 1 day and (b) hypertension”.
7. The issue for the Tribunal is whether Mr Blake’s death was war-caused within the meaning of s 8 of the Act so that Mrs Blake is entitled to a widow’s pension.
The statutory framework
8. The death of a veteran shall be taken to be war-caused if it arose out of, or was attributable to, any eligible war service rendered by the veteran: s 8(1)(b).
9. Statements of Principles (SOPs) set out the factors that must exist as a minimum, and which of those factors must be related to service rendered by the veteran before it can be said that a reasonable hypothesis is raised connecting a death of that kind with the circumstances of that service: s 196B(2).
10. A factor causing, or contributing to, a death is related to service rendered by a person if arose out of, or was attributable to, that service; or it was contributed to in a material degree by, or was aggravated by, that service: s 196B(14)(b) and (d).
11. The approach to be adopted to determining whether a death is war-caused is set out in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal must:
a) consider all the material before it and determine whether it points to a hypothesis connecting the death with the veteran’s service; if not, the application must fail;
b) if such a hypothesis is raised, ascertain whether there is in force a relevant SOP;
c) if there is in force a relevant SOP, determine whether the hypothesis raised is reasonable; if not, then the application must fail;
d) if the hypothesis is reasonable, determine whether it is satisfied beyond reasonable doubt that the death was not war-caused; if not so satisfied, then the claim must succeed.
12. In determining the first two issues, the question is whether the material before the Tribunal points to a reasonable hypothesis; no fact-finding arises.
13. It is only in considering the last of these issues that the Tribunal may engage in fact-finding, at which point the standard of proof is the “reverse criminal” standard of beyond reasonable doubt: see Deledio at 97 and 98.
Relevant Statements of Principle
14. Mrs Blake says, and the Commission does not dispute, that the following SOPs, and factors in them, are relevant in this case:
No 51 of 2006: Cerebrovascular accident
6(a) having hypertension at the time of the clinical onset of cerebrovascular accident;
6(f) drinking an average of at least 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident;
No 35 of 2003 (as amended by No 3 of 2004): Hypertension
5 (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;
No 81 of 2007: Non-melanotic malignant neoplasm of the skin
6(c) Having sunlight exposure to unprotected skin at the affected site for at least 2250 hours while in a tropical area, or having equivalent sunlight exposure in other latitude zones, before the clinical onset of non-melanotic neoplasm of the skin.
15. We note that the Commission accepts that Mr Blake’s skin cancers were war-caused. We note also that there is no SOP applicable to kidney disease and so that part of the claim would have to be determined in light of the decisions in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.
16. The following issues arise:
(i) did Mr Blake consume alcohol to the required degree and for the required period;
(ii) if so, was his consumption connected to his operational service; and
(iii) if so, are we satisfied, beyond reasonable doubt, that the condition was not war-caused.
Did Mr Blake consume alcohol to the required degree and for the required period?
17. The Commission does not dispute that Mr Blake had hypertension at the onset of his cerebrovascular accident and that his consumption of alcohol meets the requirements in 6(f) in SOP No 51 of 2006 (the SOP).
18. Mrs Blake gave evidence that she noticed, when she was first married, that her husband would become more sociable when he had had a drink and he would become talkative and sing songs. It seems that his consumption increased gradually over the years from drinking beer a couple of times a week when they were first married to later when, on average, he would drink “a couple of pre-dinner drinks” and they would share a bottle of wine with a meal, of which he would drink more than half. As well, he would drink “a few beers” after playing golf on Wednesdays and Saturdays, and they would have a barbeque perhaps once a month when he would drink a few beers.
19. Mrs Blake gave evidence that her husband was a “worrier” and would drink more when worried. She noticed this in particular in the two to three weeks time leading up to, and two to three weeks after, his six-monthly check-ups for skin cancers. There is nothing to suggest that, even during these periods, he abused alcohol or that it caused him any particular problems.
20. The Tribunal has before it a report dated 24 October 2000 from Associate Professor Richard Mattick who specialises in the assessment of alcohol dependence and abuse. He saw Mrs Blake in October 2000 and took a detailed history from her. Mrs Blake disputes some of the details of their conversation as recorded by Dr Mattick but there is no dispute of any real substance.
21. On the basis of what Mrs Blake told him, Dr Mattick assessed that Mr Blake drank “lightly and socially”, consuming approximately 22 standard drinks each week, increasing to approximately 30 standard drinks around the time of his check-ups. Towards the end of his report he comments that Mr Blake was consuming “an average of 250 to 300 grams of alcohol per week before the clinical onset of the cerebrovascular accident”.
22. We find this aspect of the hypothesis, namely the amount and period of time specified by factor 6(f) of the SoP has been raised by Mrs Blake and is pointed to by the material before us.
Was Mr Blake’s consumption of alcohol connected to his operational service?
23. Mrs Blake contends that her husband’s service contributed materially to an increase in his drinking such that his alcohol consumption met the requirements of factor 6(f).
24. The causal connection is said to lie in Mr Blake’s worry and stress each time he was due for his regular check-up for skin cancers, and his increased drinking during these times. The Commission accepts that his skin cancers were contracted while on service in New Guinea.
25. The question is whether the increase in Mr Blake’s drinking was related to to the level of drinking required by factor 6(f) of the SOP that is, an average of 250 gms of alcohol each week for 12 months prior to death.
26. Mrs Blake says her husband was fair-skinned and had problems with his skin from as early as when they met in 1950. Initially he saw his general practitioner but, from about 1958, he started having regular check-ups by Dr Bruce Mackie in June and December each year. In different documents and submissions, the date that Mr Blake stated seeing Dr Mackie varies from around 1956 to as late as 1974. In oral evidence Mrs Blake put the date at around 1956 and later at after 1957. The reason for the divergence is not clear but the Commission does not dispute Mrs Blake’s evidence and we accept that Mr Blake had started seeing Dr Mackie by 1958.
27. Mrs Blake gave evidence that her husband told her “we got around practically naked” in New Guinea; he was fearful of developing melanoma and was always careful to wear sunscreen and a hat in the sun. Over the years, he had a number of skin cancers removed, two of which turned out to be non-malignant melanomas.
28. Mrs Blake gave evidence that her husband would become worried and anxious in the two to three weeks leading up to his regular check-up by Dr Mackie; he would worry that the check-up would reveal a melanoma and would be even more worried and anxious in the two to three weeks after the check-up that it took to get the results; when he got the all-clear, he would be very relieved and would suggest they go out to dinner. She knew he was worried because he would become withdrawn and quiet, different from his normally easy-going self; during this time his drinking would increase.
29. Dr Mattick stated in his report that there was no reason to link Mr Blake’s alcohol consumption to his service. He conceded that Mr Blake “may have been tense for approximately five weeks in June and December” but that Mrs Blake could not state that his drinking increased because of the stress he experienced twice a year. Mrs Blake disputes this aspect of the report. We accept her evidence.
30. Factor 6(f) in the SOP requires an average alcohol consumption of 250 gm per week for one year, which is equivalent to a total of 13000 gms per year. We note that Dr Mattick was commenting in terms of SOP No 23 of 1998 which has been replaced by SOP No 51 of 2006; there is no material difference for present purposes.
31. Dr Mattick’s report was based on information provided to him by Mrs Blake but there is no reason to question his calculation. His figures do not reconcile precisely but it is not in dispute that Mr Blake met the required level of consumption.
32. According to Dr Mattick’s report, Mr Blake drank 22 standard drinks each week for many years, an average of 220gms per week. This increased to 30 standard drinks each week around the time of his six-monthly checkups. Based on Mrs Blake’s evidence, which we accept, this would mean that Mr Blake drank at the increased level for 12 weeks per year.
300gms x 12 weeks = 3600gms
220gms x 40 weeks = 8800gms
Total consumption: 12,400gms of which 960gms (80gms x 12 weeks), or 7.7%, is the increase.
33. In our view, an increase of 7.7%, while not large, is nevertheless material and it was sufficient to be an increase in Mr Blake’s alcohol consumption at the level required by the SOP.
34. Where consumption for a required period is in issue, it is not necessary that the whole of the consumption is attributable to operational service; it is sufficient if the operational service contributed in a material degree: Kattenberg and Repatriation Commission (2002) 73 ALD 365.
35. We find that the material before us points to factor 6(f) of the SOP, that Mr Blake’s service contributed in a material degree to the consumption of alcohol at the level and for the period required by the SOP and, accordingly, the hypothesis is reasonable: s 120A(3).
Are we satisfied beyond reasonable doubt that Mr Blake’s death was not war-caused?
36. Section 120(1) of the Act provides, in effect, that we must find Mr Blake’s death war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
37. In Bushell at 416, the High Court said the Commission would be so satisfied “if it is satisfied beyond reasonable doubt that it cannot accept the facts raised or so many of them as are necessary to support the hypothesis”. So, if it could not accept the facts raised “because of the unreliability of other material which is claimed to support them or because of the superior reliability of other parts of the material … or because the raised facts depends on inferences which the Commission is satisfied cannot be drawn”, it would be satisfied there would be no sufficient ground for making the determination.
38. We find nothing in the material or other evidence before us which would lead us to reject the facts necessary to support the hypothesis. We are satisfied that there is sufficient ground to support the determination that Mr Blake’s death was war-caused within the meaning of the Act.
Kidney disease
39. Mrs Blake contends that medical records support the conclusion that her husband contracted kidney disease after enlistment and while on service. She maintains that it is a reasonable hypothesis that he contracted a throat infection while on service leading to kidney disease which in turn led to hypertension which led to his stroke; that throat infections would have been common in the close confines of army barracks in New Guinea.
40. Because Mrs Blake’s claim succeeds for the reasons set out above, it is not necessary to deal with this part of her claim other than to observe that there is no evidence before us pointing to a hypothesis that Mr Blake contracted kidney disease as a result of streptococcal infection contracted in New Guinea. It is purely speculation that he contracted a throat infection while on service, and not pointed to by the facts before us.
Conclusion
41. We are satisfied that Mr Blake’s concern about skin cancers led to a material increase in his alcohol consumption such that it met the required degree and period in the relevant SOP. It follows that his death was war-caused within the meaning of the Act and that Mrs Blake is entitled to a war widow’s pension.
42. The decision under review is set aside and in its place the Tribunal decides that Mrs Blake is entitled to a war widow’s pension with effect from 18 April 2007.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.
Signed: …………….………
Steven Mulipola, Associate
Date of hearing: 31 August 2009
Date of decision: 26 October 2009Solicitors for the Applicant: Legal Aid Commission of New South Wales
Representative for the Respondent: Advocacy Section, Department of Veterans’ Affairs
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