Norris and Repatriation Commission
[2006] AATA 326
•6 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 326
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1074
VETERANS' APPEALS DIVISION ) Re SHIRLEY NORRIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Dr John Campbell, Member Date6 April 2006
PlaceSydney
Decision The decision under review is set aside and substituted for that is the decision that:
1. Mr Norris’s death from cirrhosis of the liver, was war caused; and
2. Mrs Norris is entitled to payment of a widow’s pension with effect from 8 April 2002.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
VETERANS APPEALS’ – Federal Court Remittal – widow’s pension – operational service - kind of death – kind of death cirrhosis of the liver –– hypothesis that Applicant began drinking during service due to the stress of service – hypothesis reasonable - Statement of Principles satisfied – hypothesis not disproved beyond reasonable doubt – decision set aside
LEGISLATION
Veterans’ Entitlement Act 1986 ss 120 and 120A
CASELAW
Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission [2003] FCAFC 136
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bull v Repatriation Commission (2001) 188 ALR 756
Repatriation Commission v Towns [2003] FCA 1262
Repatriation Commission v Bey (1997) 79 FCR 364
Cooke v Repatriation Commission (1997) 45 ALD 205
Repatriation Commission v Stares (1996) 41 ALD 212
Connors v Repatriation Commission [2000] FCA 783
Bushell v Repatriation Commission (1993) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517REASONS FOR DECISION
6 April 2006 Senior Member, Mrs Josephine Kelly and Dr John Campbell, Member Introduction
1. This is a further hearing pursuant to an order made by the Federal Court by consent, in which that Court upheld an appeal, set aside a previous decision in this Tribunal, and remitted the matter. This proceeding concerns a pension application made by the widow of a veteran, Mr John Norris.
2. An ‘Agreed Statement as to Errors of Law’ was submitted by the parties on 8 September 2005, upon the Tribunal’s request. The parties agreed that the Tribunal had not adopted the approach required to be taken when applying sections 120 and 120A of the Veteran’s Entitlements Act 1986 (“the Act”), as judicially considered in Repatriation Commission v Deledio (1998) 83 FCR 82 (at 97-8), which they summarised as:
“…the decision maker is, first, to consider all the material before it and determine, without making any findings of fact, whether that material points to a hypothesis connecting the death with service rendered by the person, second, whether there is an applicable Statement of Principles in force, third, whether the hypothesis is consistent with any such Statement of Principle, and fourth, only then make findings of fact from the material before it as to whether it is satisfied beyond reasonable doubt that the death was not connected with service (at 97-8).”
Background
3. Mr Norris served in the Australian Army from 17 February 1942 until 9 January 1946. He died on 23 February 1975, after being admitted to hospital on 18 February following a haemorrhage. Mrs Norris seeks the review of the decision made by the Repatriation Commission (“the Commission”) that Mr Norris’s death was not related to his service. The Veterans’ Review Board has affirmed that decision. Mr Norris’s service is operational service within the meaning of the Veterans’ Entitlement Act 1986 (“the Act”). He had no accepted “war-caused” disabilities.
4. For the purpose of these proceedings only, the Repatriation Commission (“the Commission”) maintained the concession made during the first hearing that Mr Norris’s smoking was war-caused.
The Issues
5. The issues in these proceedings are:
·The characterisation of the ‘kind of death’ suffered by Mr Norris. The Commission argues that it is “cirrhosis of the liver”, for which a Statement of Principles exists (No. 35 of 1998). Mr Vincent who appeared for Mrs Norris argued in the alternative that the “kind of death’, was cirrhosis of the liver or haemorrhage caused by stress ulcers for which there is no SoP, or both.
·Depending on our finding on that point, the question will be was Mr Norris’ death war caused. In the case of cirrhosis of the liver, the alleged connection with Mr Norris’s service is alcohol, and in relation to haemorrhage, the alleged connection is smoking.
The Law
6. The standard of proof to be applied to determine whether Mr Norris’s death was war-caused is that set out in s 120(1) and s 120(3) of the Act, subject to s 120A. This is a claim made after 1 June 1994 as specified in s 120A(1). If there is a relevant SoP, s 120A(3) also applies.
“In order to ascertain whether a SoP applies, it is necessary to identify the … ‘kind of death’ suffered by the veteran: see s 120A(2) and s 120A(4) of the Act”.
7. This is the first issue in this case as it was in the case of Repatriation Commission v Hancock [2003] FCA 711, from which that quotation comes. Justice Selway also said in that case:
“… there may be multiple medical conditions that cause a particular death. For example, in this case it is obvious that the primary medical condition that caused death (was) … small bowel adenocarcinoma. However, if Dr Betty is correct then there may have been another medical cause, at least in the sense of a medical cause which expedited the death. This was osteoarthrosis of both knees. It was necessary that both of these be considered”. (paragraph 8).
8. Proof is on the balance of probabilities when determining ‘the kind of death’ (s 120(4) of the Act and see Hancock,Fogarty v Repatriation Commission [2003] FCAFC 136 at [34] and the cases quoted there; Benjamin v Repatriation Commission (2001) 70 ALD 622 at [53]-[54].
9. If there is no SoP in force relevantly for the ‘kind of death’, contrary to the suggestion in Deledio that the case must fail, the application must be assessed in the manner discussed in Byrnes v Repatriation Commission (1993) 177 CLR 564. (Hancock at [10], Bull v Repatriation Commission [2001] FCA 1832 at [14]).
10. In Repatriation Commission v Towns [2003] FCA 1262, Justice Tamblerlin distinguished Hancock, and said that where there is no relevant SoP, it is unnecessary to “make any specific determination at the preliminary stage in relation to the kind of death met by the veteran” but to proceed according to the law as it stood before the introduction of the SoP regime in 30 June 1994. (paragraph 28).
11. Justice Tamberlin also commented about the width of the expression ‘kind of death’. He said that “it does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring ‘suddenly’ or in a particular location or set of circumstances. The expression ‘kind’ does not mandate a determination of the precise medical causation of the death.” His Honour gave examples of characterisation such as death at sea, or a death where there had been exposure to the elements. He construed the Tribunal to have found in that case that death was due to natural causes.
12. There is relevantly no onus of proving any matter on either party (s 120(6)) of the Act.
Undisputed Facts
13. The following is undisputed. On 18 February 1975, Mr Norris was in a friend’s car in the street near his home. His friend told Mrs Norris that Mr Norris was haemorrhaging and that he had a box of blood in the car. Mr Norris was admitted to Sutherland Hospital. Following a gastroscopy early on 19 February, he was transferred to Prince Henry Hospital at 11.30 am:
“with continued gastro-intestinal bleeding following gastroscopy for haematemesis and melaena. Oesophageal varices were noted ± ulcerated lesion.”
14. “Haematemsis” means vomiting of blood, and “Melaena” is blood in the faeces in which dark, tarry masses are passed from the bowel. “Varices” are enlarged and tortuous veins, of which varicose veins in the legs is an example.
15. Later on 19 February, an operation was carried out to create a porto-renal shunt to divert blood from the liver to relieve the pressure on the varices to try to stop the bleeding.
16. The death certificate specified the cause(s) of Mr Norris’s death as:
(a) Massive gastric and duodenal haemorrhages, days
(b) Cirrhosis of liver, years. (T6)
17. A post mortem was carried out and a report prepared (Exhibit R3). The anatomical diagnosis stated:
Cirrhosis of the liver. Massive Haemorrhage from Erosions and Varices of Stomach and Duodenum. Fatty Change in Heart Muscle. (Histological confirmation).
Medical Evidence – characterisation of “death”
18. We had the benefit of evidence from Dr Garvey, General and Diagnostic Surgeon, and Dr Gillies, Gastroenterologist. Dr Garvey prepared two reports (Exhibits A2 an A3), as did Dr Gillies (Exhibits R1 and R2). Both doctors gave oral evidence at the first hearing and before us. Their second reports were prepared after the records of Prince Henry Hospital were available.
19. The following was agreed by both doctors:
· Cirrhosis of the liver, that is damage caused to the liver by alcohol, caused hypertensive portal gastropathy which caused bleeding varices in the oesophagus for which Mr Norris was admitted to Sutherland Hospital.
· When Mr Norris was transferred to Prince Henry Hospital a porto-renal shunt was created to divert blood from the liver to relieve the pressure on the varices. The operation was an emergency procedure and was the accepted treatment for the condition in 1975. There was less than a 20% survival rate of the procedure.
· Mr Norris suffered massive gastro-intestinal haemorrhage from which he died. It was the “terminal” event (Dr Gillies) or “direct” cause of death (Dr Garvey).
20. The essential differences between the doctors may be summarised as:
· In Dr Gillies’ opinion, the proper characterisation of Mr Norris’s death was cirrhosis of the liver, as it was the underlying cause of death. Dr Garvey considered that the “direct cause” of death was haemorrhage.
· Dr Gillies considered that the source or cause of the gastro-duodenal haemorrhaging was “portal hypertensive gastropathy” whereas Dr Garvey’s view was that the haemorrhaging was from “stress ulcers”. He also argued that because the creation of the porto-renal shunt four days before death relieved pressure from the varices “the immediate principal cause of death was not bleeding varices”, but stress ulceration, referred to in the post mortem report as “erosions” in the stomach.
· Dr Gillies disagreed with Dr Garvey about the cause of stress ulceration. Dr Garvey said that blood loss resulted in a lack of blood supply to the stomach which caused erosion of the lining. The stress of the transfer from Sutherland Hospital and being in intensive care also contributed to the ulceration. Dr Gillies’ opinion was that where there is portal hypertensive gastropathy, when the gastric mucosa (lining) was damaged by acid or any other cause, it bled profusely. This occurs less often now as there are effective acid suppressants. A lot of acid is produced and the stomach was empty. The mucosa can be damaged. A lot of alcohol the night before, for example half of bottle of whiskey, could also cause erosions which then bled. Dr Gillies also considered that it was highly likely that there was coagulopathy, such that there was an inability of the blood to clot. She gave a comprehensive and persuasive explanation of why that would have been the case. The consequence would be that although pressure is reduced by the shunt, there is still blood in the varices and they can still bleed. She also said that the erosions or ulceration “as it turned out, … played a very significant role. They probably were the terminal event, but even if they could have been controlled which I think would have been impossible, even today, I think his outlook was very poor” (Trcpt p 88). By “terminal event” Dr Gillies meant the last thing that the patient actually died form.
21. It is unnecessary for us to determine whether the haemorrhage was caused by bleeding varices and/or stress ulcers. In any case, both doctors agree that the haemorrhage was an end consequence of complications arising from cirrhosis of the liver. Dr Garvey said that he would issue the death certificate as it existed, and that cirrhosis of the liver caused massive gastric and duodenal haemorrhages (p 44 of the transcript). His emphasis on stress ulceration as the direct cause of death was in the context of his asserting an hypothesis linking that condition with smoking and ultimately with Mr Norris’s war service.
22. In our opinion, the “kind of death” in this case is cirrhosis of the liver, for which there is an SoP as stated above. It is not a case where there is a number of “kinds of death” as discussed in Hancock. This is a case in which the terminal event, the haemorrhage, was an end consequence of complications directly arising from cirrhosis of the liver.
23. Given our finding, it is necessary to follow the analysis set out in Deledio referred to above, subject to one clarification. In Deledio, “the nature of the hypothesis” in the sense described in Repatriation Commission v Bey (1997) 79 FCR 364, ‘ was not an issue‘ (Deledio, at 97).
24. In Bey, the Court criticised the decision in Cooke v Repatriation Commission (1997) 45 ALD 205:
“In our view that course of reasoning ignores the fact that the expression in question is not ‘hypothesis’ but ‘reasonable hypothesis’. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East* states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker” at 372
(*East v Repatriation Commission (1987) 16 FCR 517)
25. In Bull v Repatriation Commission (2001) 188 ALR 756, in which there was a relevant SoP, the Court applied the reasoning in East and held that s 120(3) requires the formation of a factual opinion whether the material before the decision-maker, in this case, the Tribunal, does or does not raise a reasonable hypothesis connecting, relevantly, death with service. In Bull, the Court said at paragraph 18:
It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis.
26. The Court described the phrases used in East, such as “not obviously fanciful” and “not impossible”, as “useful elucidators of the meaning of ’reasonable’” but concluded: “the words of elucidation should not be substituted for the words of the statute”.
27. As we understand the authorities, where there is an SoP, to be reasonable, the hypothesis must be reasonable as discussed in Bull, and also be upheld by the SoP.
Is a reasonable hypothesis raised on the whole of the material before the Tribunal?
28. Mr Vincent who appeared for Mrs Norris, proposed the following hypothesis connecting Mr Norris’s service and his death from cirrhosis of the liver. Mr Norris started drinking during service because of the stress of his service; he consumed the necessary quantity of alcohol set out in the SoP, and died from cirrhosis of the liver. He relied on the time that Mr Norris was in Balikpapan.
29. The material before the Tribunal going to that hypothesis is summarised below.
30. Mrs Norris said that her husband did not talk much about his time in the services. He told her that it was during his service that he started drinking. This points to a temporal link between his service and drinking.
31. Mr O’Keefe, historian, provided a history of Mr Norris’s service (Exhibit R4) and of the conditions where he was. He wrote that Mr Norris was a member of the Australian Army Education Service (AAES) and described the role of that organisation. Mr Norris was not involved in direct combat. By mid-June 1945 Mr Norris was on Moratai, although when he arrived was not known because of deficiencies in his service records. The last air raid on Morotai was on 22 March 1945. From 15 September to 4 October 1944 three or four barges of Japanese reinforcements reached Moratai and in the subsequent months a few barge loads slipped through the Allied blockade and “caused some trouble, especially by harassing Allied outposts”, but “their arrival had no real effect up the situation at Morotai.”
32. Mr Norris embarked for Balikpapan on 10 July 1945. From the information available, Mr O’Keefe said that Mr Norris may have landed at Balikpapan on 12 July. A report of the AAES for the week ending 29 July 1945 referred to Mr Norris and another officer having given four lectures to troops during the voyage to Balikpapan. It went on to state:
“Operational duties and requirements have not permitted the commencement of this activity [at Balikpapan] and will continue to prevent extensive programmes until the consolidation of the area is completed.”
33. Balikpapan was subject to enemy air raids and one red alert during the period 24 to 27 July 1945:
· 24 July: Air raid at 0300 hours. Bombs dropped in the dock area. One soldier was wounded, but there was otherwise no damage.
· 24 July: One source reported a Red alert 2330 hours but no bombs being dropped, and another source said that there was an aircraft raid between 2000 and 2200 hours and 25 bombs were dropped.
· 25 July: Air raid at 0300 hours; bombs dropped in the dock area and at the aerodrome but no damage was done.
· 27July: Air raid at 0500 hours; bombs were dropped in the area occupied by 58 Bulk Issue Petrol and Oil Depot Platoon
34. Given the location of his unit, Mr O’Keefe stated that Mr Norris could not have been more than 2 kms away from the bombs and may have been closer.
35. Mr Norris returned to Morotai on 17 September 1945 and was transferred to the 33 Infantry Brigade. Mr O’Keefe set out the activities carried out by that Brigade but noted that there was no information as to which group Mr Norris was with.
36. Mr O’Keefe wrote that from mid-1944 a beer ration was introduced for Australian soldiers serving in the Pacific Islands. The ration was two 26 fluid-ounce bottles of beer per man per week, which had to be purchased. Transcripts of interviews with soldiers indicate that supplies to units in the island were erratic and did not always materialise. Free issues of two 26 fluid ounce bottles of beer were made to each soldier at Balikpapan on 17 August 1945 to celebrate the Japanese surrender and at Morotai “and presumably at other locations in September 1945 to celebrate Victory in Europe Day”.
37. On the basis of that material from Mr O’Keefe, by Mr Vincent said that there was an ’hypothesised’ causal link between Mr Norris’s service and drinking. He argued that there is an inference from Mr O’Keefe’s material that given his unit’s posting, Mr Norris would have been in the immediate vicinity of a number of enemy air raids on Balikpapan. As a consequence he would have suffered stress which in turn caused him to start drinking to alleviate that stress.
38. Mr Vincent referred to the authorities of Byrnes v Repatriation Commission (1993) 177 CLR 564, Repatriation Commission vStares (1996) 41 ALD 212 and Connors v Repatriation Commission [2000] FCA 783 which he argued established that an hypothesis may assume a fact or facts, and therefore in this case, the material before us raises an hypothesis which included the necessary causal link.
39. Taking into account the whole of the material before us (Bushell v Repatriation Commission (1992) 175 CLR 408 at p 415), those cases referred to by Mr Vincent, and Bey and East, we consider that the material before us raises a reasonable hypothesis connecting the circumstances of Mr Norris’s service with his drinking. The hypothesis is that he began drinking while on service because alcohol was made available by the Army, and to alleviate the stress caused by the air raids that occurred at Balikpapan. His drinking habit, so formed, contributed to the cause of his death, cirrhosis of the liver. Such an hypothesis, in our view, is not too remote or tenuous, fanciful, impossible or incredible, for the material as stated points to each element of the hypothesis.
40. Is that hypothesis consistent with the SoP?. The relevant factor “that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting … death from cirrhosis of the liver with the circumstances of a person’s relevant service” is 5(a), which provides:
“For men consuming at least 150 kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver”.
41. Dr Gillies was satisfied that factor 5(a) of the SoP had been met, that is that Mr Norris had consumed 150 kilograms of alcohol within 10 year period before clinical onset, which she put at around 1970.
42. We therefore find that there is a reasonable hypothesis pursuant to s 120(3).
43. The Tribunal now turns to the fourth step of Deledio, which requires us to make findings of fact from the material before us, bearing in mind that the claim will succeed unless we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Norris’s death war-caused as provided by s 120(1).
44. In Byrnes at [571], Mason CJ, Gaudron and McHugh JJ said:
“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 is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.”
45. In this case, the hypothesis has not been disproved beyond reasonable doubt. Accordingly we find that Mr Norris’s death from cirrhosis of the liver was war caused.
Decision
46. Accordingly, the decision under review is set aside and substituted for that is the decision that:
1. Mr Norris’s death from cirrhosis of the liver was war caused, and
2. Mrs Norris is entitled to payment of a widow’s pension with effect from 8 April 2002.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Dr John Campbell, Member
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 14 February 2006
Date of Decision 6 April 2006
Counsel for the Applicant Mr M. Vincent
Solicitor for the Applicant Dibbs Abbott Stillman
Counsel for the Respondent Miss R. Henderson
Solicitor for the Respondent Australian Government Solicitor
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