Norris and Repatriation Commission

[2005] AATA 256

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 256

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1815

VETERANS’ APPEALS DIVISION		)
Re		SHIRLEY NORRIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Robin Hunt, Senior Member  

Dr Ion Alexander, Member

Date              29 March 2005

PlaceSydney

Decision The decision under review is affirmed.

...................[sgd]...........................

Robin Hunt

Senior Member

CATCHWORDS

VETERAN’S ENTITLEMENTS – claim by widow- cause of death - real or operative cause not a terminal condition - haemorrhage was end process of dying not cause of death – death not caused by or contributed to by war caused smoking and alcohol habits.

Veterans’ Entitlements Act 1986 s120

Fitzgerald v Penn (1954) 91 CLR 268

Chappel v Hart (1998) 195 CLR 232

Reg v Malcherek and Steel [1981] 1 WLR 690

Repatriation Commission v Hancock [2003] FCA 711

Spencer v Repatriation Commission 34 AAR 379

Brown and Repatriation Commission [2003] AATA 1010

REASONS FOR DECISION

20 March 2005 Robin Hunt, Senior Member 
Dr Ion Alexander, Member            

1.      By application heard before the Tribunal on the second of February 2005, Mrs Shirley Norris, the widow of a veteran, Mr John Thomas Norris, sought review of a decision of the Respondent as affirmed by a Veterans’ Review Board that the death of her late husband was not attributable to his war service. Mr Norris died on the 23^rd of January 1975. The certified cause of death was :

(a) Massive gastric and duodenal haemorrhages - days

(b) Cirrhosis of the liver - years

2.      As the deceased had “operational service”, as defined in section 6 (A) of the Veterans Entitlements Act 1986 (‘the VEA’), the standard of proof in this matter is that prescribed by subsections 120(1) and (3) of the Act.  The Tribunal must find that the death was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.  If, after a consideration of all the material before it, the Tribunal decides the evidence does not raise a reasonable hypothesis connecting Mr Norris’s death with his service, Mrs Norris’s claim cannot succeed.

3.      Before dealing with whether the death was war-caused, the Tribunal must determine, on the balance of probabilities, the “kind of death” suffered by Mr Norris. See Repatriation Commission v. Hancock [2003] FCA 711 and the Tribunal case, Brown and Repatriation Commission [2003] AATA 1010. In determining the “kind of death” the Tribunal is, as Senior Member Allen and Member Thorpe explained in Brown, seeking the real or operative cause of death as opposed to the final stage of the process of dying. Senior Member Allen and Member Thorpe approached this exercise in Brown by adopting the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276. See also Chappel v Hart (1998) 195 CLR 232 at 243, per Gaudron J, and compare Reg v Malcherek and Steel [1981] 1 WLR 690, especially at pp 695, 696.

4.      The Tribunal has taken the same path to ascertain whether a particular illness or disease can fairly and properly be considered the cause of death. Mrs Norris has put to the Tribunal that Mr Norris’s death was caused by smoking and alcohol. Further, the Respondent conceded during the course of the review that Mr Norris’s smoking habit was a war caused condition. Mrs Norris told the Tribunal she was aware that her husband had a lot of stomach problems and sometimes passed blood. Her counsel argued that, as a result of heavy smoking and drinking, which were war-caused conditions, Mr Norris suffered from ulceration that lead to the haemorrhaging and death. He also pointed out that no Statement of Principle (SoP) governed death by haemorrhage.

5.      The Respondent argued that Mr Norris suffered from ulceration and portal hypertension secondary to cirrhosis that lead to the haemorrhaging and death and did not die of haemorrhage alone. Therefore, Mrs Norris must demonstrate that Mr Norris met either the SoP for cirrhosis of the liver (Instrument No 35 of 1998) or the SoP for peptic ulcer disease (Instrument No 21 of 1999).

6.      The actual circumstances of Mr Norris’ death were unclear as a result of a lack of clinical records and this led to some confusion in the medical evidence. Dr J Garvey and Dr M Gillies both gave written and oral concurrent evidence. In her written report of 7 October 2004, Dr Gillies concluded that the most likely cause of death was portal hypertension secondary to cirrhosis of the liver and that the hypertension was secondary to his alcohol consumption. Dr Garvey reported, on 16 June 2004, that in his opinion Mr Norris’s death might have been caused by massive haemorrhage linked to ulceration connected to Mr Norris’s war-caused smoking as well as alcohol consumption causing cirrhosis of the liver. Dr Garvey opined that duodenal and gastric haemorrhage played a part in the death while cirrhosis was the primary cause.

7.      Mrs Norris did not give oral evidence to the Tribunal, however a description of the ‘events’ leading up to and surrounding the death of Mr Norris, given to the Veterans Review Board On the 25^th of September 2003, was read to both doctors. Dr Gillies indicated that this description of the event supported her opinion as to circumstances of the death. Dr Garvey conceded that the description of the events would suggest that haemorrhage from varices caused by the cirrhosis was the most likely primary event and that if stress ulceration were to be considered it would be secondary.

8.      Dr Garvey’s second hypothesis about the cause of the haemorrhaging has some difficulties. In oral evidence (by telephone) Dr Garvey modified this hypothesis and introduced the concept of acute stress ulceration. He suggested that this could have been the actual cause of death. This hypothesis was less clear to the Tribunal. The evidence of the two doctors on this issue was severely hampered by the lack of comprehensive clinical records. The proposed connection with smoking and possible haemorrhage was not clearly enunciated.

9.      On balance, and without going into further detail of the evidence of Drs Gillies and Garvey, where the evidence of Dr Garvey conflicts with that of Dr Gillies we prefer the evidence of Dr Gillies. There is no doubt that Mr Norris had cirrhosis of the liver. This is the opinion of both doctors’ and the doctor who provided the certificate of death. Having had the advantage of hearing the evidence of both Dr Garvey and Dr Gillies, we are satisfied on the balance of probability that the cause of death was cirrhosis of the liver in which massive haemorrhaging was but the end of the dying process and not an operative cause.

10.     As we have determined that cirrhosis was the cause of death, the next key issue is whether there is a link between war service and the cirrhosis condition. There is strong evidence as to the significant amount of alcohol that Mr Norris consumed and there is no disagreement that Factor 5(a) of the SoP, Instrument No 35 of 1998, with reference to the amount of alcohol consumed is satisfied. There is no evidence before the Tribunal that the various other factors contained in the SoP are present in this case.

11.     In addition, there is no convincing evidence before the Tribunal that Mr Norris’s alcohol habit was a war-caused condition. Mrs Norris has stated that her husband never discussed his war service with her. She was unable to give a reason for her husband’s drinking to the Tribunal or the Board or in written statements. Mrs Norris observed that Mr Norris was a heavy drinker when she met him in 1948 and that he continued to drink.  She also stated that Mr Norris told her he started drinking during his time in service. This statement is not sufficient to base a finding that Mr Norris’s habit was war-caused. The sparsity of material before the Tribunal prevents us finding that Mr Norris developed a drinking habit due to his war service.

12.     There are two hypotheses before the Tribunal and we find as follows in respect to these:

(a)Increasing alcohol consumption during and after war service resulted in the development of cirrhosis of the liver and portal hypertension with subsequent massive fatal haemorrhage. The Tribunal accepts that this is a reasonable hypothesis. In this instance, the SoP No 35 of 1998 applies. The criteria, apart from Factor 5(a) are not met.

(b)(b)     Increasing tobacco dependence during and after war service resulted in peptic ulceration or acute stress ulceration which led to massive fatal haemorrhage. The Tribunal has already rejected this hypothesis for the reasons set out above. In summary, the medical evidence does not indicate that any form of ulceration was responsible for Mr Norris’s death. The haemorrhage was brought about through weakening of the varices stressed by cirrhosis of the liver. The haemorrhaging was not the condition which brought about the death but the final event in the manner of dying.

13.     As the remaining hypothesis before the Tribunal is that the death of Mr Norris was brought about by a condition that was not war-caused, that is, cirrhosis of the liver, the result is that the decision under review must be affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member and Dr Ion Alexander, Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of hearing  2 February 2005
Date of decision     29 March 2005

Representative for the Applicant  Dibbs Barker Gosling

Representative for the Respondent  Department of Veterans Affairs