Phyllis Horn and Repatriation Commission
[2014] AATA 520
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/5134
Veterans' Appeals Division )
Re: Phyllis Horn
Applicant
And: Repatriation Commission
RespondentDIRECTION
TRIBUNAL: Dr P McDermott RFD, Senior Member
DATE: 8 September 2014
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application, replacing 22 August 2014 at line 3 paragraph 49 and on the cover page with 26 August 2014.
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[2014] AATA 520
Division VETERANS' APPEALS DIVISION File Number
2013/5134
Re
Phyllis Horn
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Date 29 July 2014 Place Brisbane We set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow's pension with effect from 22 August 2012 to 7 April 2014.
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Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Death of veteran – Death by dementia – Operational service – Statement of Principles concerning Alzheimer-type Dementia –Statement of Principles concerning Hypertension – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war caused – Decision under review set aside and substituted
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6B, 7, 8, 11, 13, 14, 120, 126, 120A, 196A, 196B
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Collins v Repatriation Commission (2009) 258 ALR 204
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Gilbert v Repatriation Commission (1989) 86 ALR 713
Knight v Repatriation Commission [2010] FCA 1134
McKenna v Repatriation Commission [1999] FCA 323
McKenzie v Repatriation Commission [2014] FCA 777
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 147 CLR 635
Repatriation Commission v McKenna [1998] FCA 787
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Warren [2008] FCAFC 64
The Estate of the late Sarah Isabella Stewart [2014] AATA 161
SECONDARY MATERIALS
Statement of Principles concerning Hypertension (Instrument No 63 of 2013)
Statement of Principles concerning Alzheimer-type dementia (Instrument No 22 of 2010)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
29 July 2014
INTRODUCTION
Phyllis Horn (“the applicant”) was a dependent of the late Noel Horn (“the veteran”) who served in World War II. The applicant has applied for a war widow’s pension. As the applicant is now deceased, her application is being continued by her estate. We have to decide whether the death of the late veteran was related to his service.
PRIOR DECISIONS
On 22 November 2012 the applicant made her claim for a war widow’s pension.
On 23 April 2013 a delegate of the Repatriation Commission rejected the claim.
On 9 September 2013 the Veterans’ Review Board (“VRB”) affirmed the decision of the delegate. The applicant sought review of the decision by this Tribunal.
SERVICE
The veteran rendered “eligible war service” in the form of operational service from
19 April 1942 to 1 July 1946.[1]
[1] As defined by ss 6B and 7 of the Act.
LEGISLATIVE FRAMEWORK
Section 8 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) provides for when the death of a veteran is taken to be war-caused. This provision applies where, relevantly under s 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
Section 13(1) of the Act provides, relevantly, that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.
Section 14(1) of the Act provides for a dependant of a deceased veteran to make a claim for a pension. Section 11 provides for a dependant to include a “widow”.
Section 5E of the Act defines a “war widow” to be a woman who was the partner of a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran.
As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and (3) of the Act.
Section 120(1) of the Act provides that where a claim for a pension is made:
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.
Section 120(3) of the Act also provides that:
In applying [s 120(1)] 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.
STATEMENT OF PRINCIPLES
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”) which is an independent medical body that issues Statements of Principles, based on sound medical-scientific evidence, which set out factors relating to service which must exist in order to establish a causal connection between particular diseases, injuries or death, and service.
Section 196B(2) of the Act provides that if the RMA:
(2) … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans;
…
[they] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of [the veteran’s] service.
A Statement of Principles is binding on decision-makers at all levels, including this Tribunal.
The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides, relevantly, that a factor causing an injury, disease or death is “related to service” rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
In the case of applications lodged after 1 June 1994, where the RMA has made a Statement of Principles in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This is followed by the application of s 120A(3) of the Act, which provides that:
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.
DEATH OF THE VETERAN
The death certificate records that the veteran died in 2012, the causes of death being:[2]
1 (a) Lower respiratory tract infection, (b) Dementia.
2. Recurrent urinary tract infections.
[2] Exhibit A, p 13.
CONSIDERATION
The applicant has died since she made this application to this Tribunal. In evidence is the death certificate of the applicant[3] as well her will in which she appointed her legal personal representative.[4] The application does not lapse in view of the applicant having passed away, as she made the application for review to this Tribunal during her lifetime[5] and it is being continued by her legal personal representative under s 126 of the Act.
[3] Exhibit I.
[4] Exhibit J.
[5] The Estate of the late Sarah Isabella Stewart [2014] AATA 161 at [11].
[6] (1998) 83 FCR 82 at 82-83.
We are required to consider the applicant’s claim in accordance with the
Repatriation Commission v Deledio[6](“Deledio”) four-step process.[7]
[7] Repatriation Commission v Bawden [2012] FCAFC 176 at [40].
In Deledio, the Full Court of the Federal Court of Australia provided guidance on the four steps which we are required to consider:
(i) 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.
(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a [Statement of Principles (SoP)] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(iii) 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.
(iv) 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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.[8]
[8] Deledio at 82-83.
[10] (2007) 163 FCR 35 at [31].
In Forrester v Repatriation Commission,[9] Mortimer J observed that in
Collins v Administrative Appeals Tribunal,[10]Allsop J (as he then was) pointed out that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.
[9] [2013] FCA 898.
Step 1 of Deledio
In this first Deledio step we are required to examine the material to ascertain whether the material points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. It has been said that “a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact”.[11]
[11] Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
There is evidence that the veteran began to drink alcohol for the first time during the war. Mr Andrew McKeever, a grandson of the veteran, was told by the veteran that he drank alcohol whilst in the Army and that he denied drinking whilst a teenager. There is also evidence that after his service he would drink heavily.
In Forrester v Repatriation Commission,[12] Mortimer J has provided guidance how to apply the first step in Deledio, and has pointed out that “whether material points to or supports a hypothesis is, of its nature, a matter which can be determined by inference or assumption”. Her Honour pointed out that in Repatriation Commission v Stares[13]
(a pre-Deledio case), the Full Court held that “assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach”.
[12] [2013] FCA 898 at [30].
[13] (1996) 41 ALD 212.
At this stage we will assume that the veteran engaged in heavy drinking during the war because within a few years after the conclusion of hostilities he was engaged in heavy drinking such as taking a bottle of whisky with him while he was fishing.[14]
[14] Supplementary statement of Andrew McKeever, dated 13 June 2014, (Exhibit E).
We consider that the material before us points to a hypothesis that the veteran commenced drinking alcohol during wartime, this caused the veteran to become a heavy drinker during and after the war and this heavy consumption of alcohol by the veteran contributed to the longstanding hypertension condition of the veteran which was a cause of Alzheimer-type dementia which has been certified to be a cause of the death of the veteran.
Step 2 of Deledio
We are required to ascertain whether there are in force any Statements of Principles issued by the RMA under ss 196B(2) or (11) of the Act. For the various components of the hypothesis, we have ascertained that the Statement of Principles concerning Hypertension (Instrument No 63 of 2013) and the Statement of Principles concerning Alzheimer-type dementia (Instrument No 22 of 2010) are in force.
Step 3 of Deledio
In assessing whether a raised hypothesis is “reasonable”, it is important to have regard to the decision of the High Court of Australia in Byrnes v Repatriation Commission,[15] which held, at 569,[16] that a reasonable hypothesis is raised when “the material points to some fact or facts ('the raised facts') which support the hypothesis”. Furthermore, the High Court said, at 571, that in relation to this step:
The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
[15] (1993) 177 CLR 564.
[16] Citing Mason CJ and Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
Since 1 June 1994, in accordance with s 196B(8) of the Act, to assist a decision-maker in establishing whether an applicant's hypothesis is reasonable, for the purposes of the Act, a decision-maker must refer to the relevant Statement of Principles issued by the RMA. Therefore, this Tribunal must ascertain if it has material before it which fits the template for the relevant Statement of Principles. We are conscious that it has been held that the material must pose a credible proposition not too remote or too improbable; it must be:
... more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.[17]
[17] East v Repatriation Commission (1987) 16 FCR 517 at 532-533.
Accordingly, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility.[18] The High Court of Australia held in Bushell v Repatriation Commission[19] that the s 120(3) test will reveal a reasonable hypothesis where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with operational service”.
[18] Gilbert v Repatriation Commission (1989) 86 ALR 713 at 721; Repatriation Commission v Bey (1997) 79 FCR 364.
[19] (1992) 175 CLR 408 at 416.
In Repatriation Commission v McKenna[20] Goldberg J emphasised that “it [was] fundamental to any enquiry under ss 120 and 120A of the Act to identify… the relevant hypothesis”. The applicant advances a hypothesis which is upheld by two Statements of Principles. In McKenna v Repatriation Commission[21] the Full Court remarked: “We can see no difficulty in the way of interpreting s 120A(3) of the Act as allowing a hypothesis to be upheld by more than one Statement of Principles”. Recently, in
McKenzie v Repatriation Commission,[22] Murphy J emphasised that two Statements of Principles may operate sequentially to uphold a hypothesis.
[20] [1998] FCA 787.
[21] [1999] FCA 323.
[22] [2014] FCA 777 at [23].
The hypothesis advanced by the applicant in the statement of facts and contentions dated 6 June 2014 is:
a.The applicant contends that at the time of his death, the veteran was suffering from dementia and that dementia was the kind of death suffered by the deceased veteran.
b.The applicant contends that the veteran’s excessive consumption of alcohol throughout his post-World war II life caused him to develop hypertension and subsequently dementia.
c.The applicant contends that the veteran was a non-drinker at the time that he joined the Australian Army. The veteran came from a family that did not drink. His family conducted a taxi service business. The veteran was only 18 years of age when he joined the Australian Army.
d.It is the applicant’s contention that the veteran commenced to consume alcohol heavily during his service in the Australian Army as a consequence of the stressful nature of that service in an operational environment in which the veteran was engaged (see the historical report of Dr Palazzo).
e.The applicant therefore submits that the causal link between the death of the veteran and his war service is established on the evidence and that she is entitled to be paid widow’s pension as and from 26 August 2012.
The respondent in the statement of facts and contentions dated 23 June 2014 responded to the applicant’s statement of facts and contentions by stating that “the single issue between the parties is whether the [veteran’s] alcohol habit was war caused. In every other respect the respondent concedes the applicant’s contentions”.
These statements of facts and contentions which have been provided in accordance with the General Practice Direction provide the background against which each party formed its case and interchanged with the Tribunal in the course of the hearing.[23] The respondent certainly accepts that the veteran had an alcohol habit but does not concede that the alcohol habit was war caused.
[23] Repatriation Commission v Warren [2008] FCAFC 64 at [92] per Logan J
We are required to determine the “kind of death” that is applicable to the veteran. The expression “kind of death” refers to the medical cause or causes of death.[24]
Dr Keren Harvey, Geriatrician, in her report of 16 June 2006 stated that the veteran was diagnosed with Alzheimer’s disease in 2002.[25]
[24] Repatriation Commission v Hancock [2003] FCA 711 at [8]-[9] per Selway J.
[25] See Exhibit H.
It has been held that there may be more than one cause of death.[26] Clause 9 of the Statement of Principles concerning Alzheimer-type dementia (Instrument No 22 of 2010),
"death from Alzheimer-type dementia" in relation to a person includes death from a terminal event or condition that was contributed to by the person’s Alzheimer-type dementia;
[26] Repatriation Commission v Law (1980) 147 CLR 635 at 648; Collins v Repatriation Commission (2009) 258 ALR 204 at [51].
The Statement of Principles concerning Alzheimer-type dementia (Instrument No 22 of 2010) (“the 2010 SoP”) in cl 4 indicates that the RMA is of the view that there is sound medical-scientific evidence that indicates that death from Alzheimer-type dementia can be related to relevant service rendered by veterans.
One of the veteran's causes of death was certified as being dementia. It is accepted that there is no issue that this was Alzheimer-type dementia (which comes within the definition of Alzheimer-type dementia in cl 3(b) of the 2010 SoP), and it is accepted (and we so find) that one of the veteran’s causes of death was Alzheimer-type dementia.
Clause 5 of the 2010 SoP provides, subject to cl 7 (which is not material in this matter), that at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person.
We have to consider whether a reasonable hypothesis has been raised connecting death from Alzheimer-type dementia with the circumstances of the veteran’s relevant service. Clause 6 of the 2010 SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from Alzheimer-type dementia with the circumstances of a person’s relevant service is:
(g) having hypertension at least 10 years before the clinical onset of Alzheimer-type dementia;
We have to determine when there was the clinical onset of Alzheimer-type dementia.
Dr Harvey has reported that the veteran was diagnosed with Alzheimer’s disease in 2002. We therefore consider that the clinical onset of Alzheimer-type dementia was in 2002. The material before us indicates that the veteran was diagnosed with hypertension in about 1976 or 1977 by his treating general practitioner Dr Walton, and from then he was given medication for this condition.[27] The circumstances of the veteran meet the requirements of cl 6(b) in that the applicant had hypertension for at least 10 years before the clinical onset of Alzheimer-type dementia.
[27] Exhibit A, p 54.
What is important is to relate the hypertension condition to the service of the veteran. The Statement of Principles concerning Hypertension (Instrument No 63 of 2013) (“the 2013 SoP”) provides that a reasonable hypothesis connecting hypertension with a person’s relevant service is “consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension”.[28] There is evidence before us which indicates that the veteran was a very heavy drinker after
World War II. Mrs McKeever in her statement has indicated that the veteran was a heavy drinker. The respondent has not taken issue that the level of consumption of the veteran applicant satisfies cl 6(b) of the 2013 SoP.
[28] See cl 6(b) of the 2013 SoP.
What is in issue is whether this consumption is related to service. Mr Andrew McKeever, the grandson of the veteran, has stated that he was informed by the veteran that he did not drink as a teenager. The legal drinking age was then 21 years of age.
Mr Andrew McKeever has also stated that the veteran drank alcohol whilst in the Army and that they would drink whatever they could get their hands on. The veteran did not smoke and would swap his cigarette ration for alcohol. He also commented that alcohol brought up from Port Moresby was “good currency”. Mr Andrew McKeever also indicated that the veteran would drink heavily after the war.
The respondent has quite properly conceded that the veteran had stressful service.
Dr Palazzo has indicated that the veteran was exposed to stressful service, one instance being the crash of a loaded US bomber with a loss of 59 men and 92 wounded.
Mr Andrew McKeever has also stated that the veteran was involved with anti-aircraft defence and Zero aircraft being shot down by Bofers guns. The veteran has had to search Japanese aircraft that had been shot down; on one occasion they found the decomposed Japanese bodies in an aircraft.
In determining whether there is a reasonable hypothesis, we are conscious that the
High Court of Australia in Bushell v Repatriation Commission[29] explained, at 413, that
s 120(3) of the Act is:
not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis.
[29] (1992) 175 CLR 408.
In Knight v Repatriation Commission[30] Katzmann J explained that “the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis”.[31]
[30] [2010] FCA 1134.
[31] [2010] FCA 1134 at [35].
We consider that there is a reasonable hypothesis that the death of the veteran is connected with the circumstances of his service. There is material pointing to the veteran having first drunk alcohol whilst he was on operational service and exposed to severe stress, this caused the veteran to become a heavy drinker of alcohol after World War II. This hypothesis fits the template because there is no issue that the veteran consumed alcohol at the rate that is prescribed by cl 6(b) of the 2013 SoP, that is, for six months before the clinical onset of hypertension. At this time the veteran was working in a bottle shop where he was allowed to drink after work as well as take alcohol home.
We also consider that once we have determined that the hypothesis advanced by the applicant is a reasonable hypothesis, there is no need to consider whether the applicant has to satisfy an alternate hypothesis based on the Statement of Principles concerning Alcohol Dependence and Alcohol Abuse (Instrument No 1 of 2009).
Step 4 of Deledio
We are now required to consider, under s 120(1) of the Act, whether or not, for the hypothesis, we are satisfied “beyond reasonable doubt” that the veteran's death was not war-caused. In Forrester v Repatriation Commission[32] Mortimer J, in discussing the fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at that stage”.
[32] [2013] FCA 898 at [80].
The respondent has properly conceded that it cannot satisfy this Tribunal beyond a reasonable doubt that the death of the veteran was not war-caused.
DECISION
We set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension with effect from 22 August 2012 to 7 April 2014.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member ............................[Sgd]............................................
Associate
Dated 29 July 2014
Date of hearing 25 June 2014 Counsel for the Applicant Mr Anthony Harding Solicitors for the Applicant Mr Terence O'Connor Solicitors for the Respondent Mr Adrian Crowe, Department of Veterans' Affairs
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