Pierce and Repatriation Commission
[2001] AATA 431
•22 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 431
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1130
VETERANS' APPEALS DIVISION )
Re Frances Louisa Pierce
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member Dr MEC Thorpe, Member
Date22 May 2001
PlaceSydney
Decision The decision under review is affirmed
....................[sgnd].................... ...................[sgnd]…..................
Dr MEC Thorpe Ms SM Bullock
Member Senior Member
Catchwords
VETERANS' AFFAIRS – War Widow's Pension – Operational and Non-operational Service – Whether Applicant's Husband Died of War-caused Ischaemic Heart Disease – Alcohol Abuse – Smoking History – Hypertension – Obesity – Diabetes Mellitus
Legislation
Veterans' Entitlements Act 1968 (Cth) ss 5C, 5D, 6B, 7, 8, 9, 13, 119, 120, 120A, 120B
Authorities
Re Towle and Repatriation Commission (2000) 31 AAR 414
Hughes v Repatriation Commission (1991) 25 ALD 192
Dixon v Repatriation Commission (1999) 59 ALD 315
McKenna v Repatriation Commission (1999) 86 FCR 144
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Bey (1997) 79 FCR 364
Bushell v Repatriation Commission (1992) 175 CLR 408
REASONS FOR DECISION
22 May 2001 Ms SM Bullock, Senior Member Dr Thorpe, Member
This is an application for review by Mrs Frances Louisa Pierce ("the Applicant") of a decision made by the Repatriation Commission ("the Commission") dated 15 December 1997 (T2), as affirmed by the Veterans' Review Board ("the Board") on 13 May 1999 (T16), that the death of her husband, Mr Raymond Hope Pierce, was not related to service.
A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") on 27 February 2001. Mrs Pierce was represented by Mr C Vindin of Counsel. Mrs Pierce provided evidence at hearing, as did Dr MG Miller, Consultant Physician. The Respondent, the Commission, was represented by Ms Philippa Hook, Departmental Advocate. Taken into evidence were documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ("T1 – T18") and the following exhibits:
Exhibit Number Description Date
T1 – T18 Section 37 Statement and Documents Various
A1 Statement of Mrs F Pierce 3 April 2000
A2 Statement of Mrs F Pierce 15 September 2000
A3 Statement of Mr S Pierce April 2000
A4 Statement of Mr D MacCallum 12 April 2000
A5 Report of Dr MG Miller, Consultant Physician 26 May 2000
A6 Report of Dr MG Miller, Consultant Physician 20 February 2001
A7 File note of Ms Mashman detailing conversation with Ms L Pierce 22 February 2001
A8 Letter from Mr D Kemp, Solicitor, Dibbs Crowther and Osborne to the Department of Veterans' Affairs 16 November 2000
A9 Photograph of Mr Pierce in Cadet Uniform Undated
A10 Photograph of Mr Pierce and his daughter Undated
A11 Photograph of Mr Pierce aged approximately 50 years Undated
R1 Statement of Mr G Ashley, Delegate of the Repatriation Commission 7 September 2000
R2 Report of Associate Professor Mattick, Director of Research at the National Drug and Alcohol Research Centre, University of New South Wales 21 August 2000
Issues
The issues to be determined in this matter are:
(a)Whether or not Mr Pierce developed alcohol abuse or dependence as a result of his service; and if so
(b)Whether or not Mr Pierce's alcohol abuse or dependence led to the development of hypertension; and if so
(c)Whether or not Mr Pierce's hypertension led to the development of his ischaemic heart disease, which led to his death;
(d)Whether or not Mr Pierce had a service-related smoking habit;
(e)Whether or not Mr Pierce had service-related obesity which led to ischaemic heart disease;
(f)Whether or not Mr Pierce had a service-related condition of diabetes mellitus which led to ischaemic heart disease;
(g)Whether or not Mr Pierce's death was war-caused.
Legislation
A determination in this matter requires consideration of the provisions of the Veterans' Entitlement Act 1986 (Cth) ("the Act").
Section 5C of the Act, amongst other things, defines Australian mariner.
Section 5D of the Act deals with the definition of injury and diseases.
Section 6B deals with qualification for operational service of Australian mariners.
Section 7 deals with qualification for eligible service for Australian mariners.
Section 8 deals with war-caused death.
As relevant, section 9 of the Act deals with war-caused injuries or diseases and provides:
"9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
Section 13 of the Act deals with eligibility for pension and as relevant states:
"13 Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused; or
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran--pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran--pension by way of compensation to the veteran;
in accordance with this Act.
…"
Section 119 of the Act reflects that decision-makers are not bound by technicalities and that decision-making under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time and the absence or deficiency in records.
Mr Pierce served in the Merchant Navy during World War II and had both operational and non-operational service. As noted by the Board, Mr Pierce was in receipt of a service pension as a British mariner. He also qualified as an Australian mariner for the purposes of the Act. The standard of proof for operational service is contained within subsections 120(1) and (3) of the Act. Mr Pierce's (non-operational) eligible war service is dealt with under subsection 120(4) of the Act. Subsections 120(1), (3) and (4) state as relevant:
"120 Standard of proof
(1)Where a claim under Part II for a pension 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.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) 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.
Note: This subsection is affected by section 120A.
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of a hypothesis must be undertaken in accordance with any Statement of Principles issued by the Repatriation Medical Authority ("RMA") or any relevant determination or declaration under the Act.
In relation to Mr Pierce's non-operational service, the Tribunal is required to apply section 120B of the Act. Thus the Tribunal has to decide matters to its reasonable satisfaction in accordance with any Statement of Principles issued by the RMA or any relevant determination or declaration under the Act.
Statements of PrinciplesThe Tribunal considers, and there is no dispute, that the relevant Statements of Principles for Mr Pierce's operational and non-operational service are:
(a)Instrument Numbers 5 and 6 of 1994 concerning Psychoactive Substance Abuse or Dependence;
(b)Instrument Numbers 140 and 141 of 1996, as amended by Instrument Numbers 77 and 78 or 1997 concerning Ischaemic Heart Disease;
(c)Instrument Numbers 83 and 84 of 1995 concerning Hypertension;
(d)Instrument Numbers 47 and 48 of 1996, as amended by Instrument Numbers 187 and 188 of 1996 concerning Diabetes Mellitus.
Background
The following information is provided by way of background and the information contained within is not disputed:
Mr Pierce was born on 13 October 1916.
Mr Pierce joined the Merchant Navy in 1932 aged 16 years.
Mr Pierce served in the Merchant Navy during World War II as follows:
Date Ship Type of Service
20 July 1940 to 4 November 1940 "BURANDA" Eligible war service (non-operational)
29 November 1940 to 20 January 1941 "AORANGI" Operational
24 January 1941 to 15 April 1941 "ZEALANDIA" Operational
16 October 1941 to 12 December 1941 "MACEDON" Eligible war service
1 February 1942 to 6 July 1942 "ASTORIA" Operational
12 August 1942 to 3 July 1945 "HENRY DUNDAS" and other ships Operational
(T3, p18)
Mr and Mrs Pierce were married on 12 September 1944 (T4, p21; T5).
Mr Pierce died on 26 June 1997 at the Mater Misericordiae Hospital, Waratah, aged 80 years. The causes of death recorded on the Death Certificate are:
"(I) a) Cardiopulmonary arrest minutes
b) Large bowel obstruction days
c) Acute renal failure days(II) Congestive cardiac failure years"
(T7)On 3 November 1997, Mrs Pierce lodged a claim for a War Widow's Pension stating that her husband's death was directly attributable to his active service in the Merchant Navy. Mrs Pierce detailed that her husband worked in very stressful circumstances with the danger of attack by "bombing, shelling and/or torpedoing". Mr Pierce sailed on many ships convoying materials such as high explosives and fuel and also repatriating sick, wounded and dead service personnel. Mrs Pierce claimed conditions on board were very poor, including the food. Mr Pierce could not obtain treatment for diabetes which Mrs Pierce believed started in 1946. He became obese and remained so until three years before his death. Mr Pierce also noted on the claim form that her husband was a "moderate smoker and drinker" and worked in conditions where smoking and drinking were a part of daily life (T4, p23).
On 15 December 1997, the Commission decided that Mr Pierce's death was not related to service (T2).
On 9 June 1998, Mrs Pierce lodged an application for review to the Board (T14) noting that Mr Pierce's service in the Atlantic, Indian and Pacific Oceans and the English Channel would have been sufficiently stressful to cause Mr Pierce to significantly increase his smoking habit. In such circumstances, Mrs Pierce asserted that: "…it would be difficult to be satisfied beyond reasonable doubt that death (and smoking) were not related to war service." (T14).
On 13 May 1999, the Board decided that Mr Pierce's death was not war-caused or related to his eligible service (T16). The Board considered only the relationship of Mr Pierce's smoking to his death from ischaemic heart disease, finding that:
"… the evidence is simply silent as to when the mariner commenced smoking, what quantity he smoked, if he did smoke prior to operational service did he smoke more because of operational service. Reaching any conclusion based on the little evidence available would be pure speculation not based on fact." (T16, p70)
On 27 July 1999, Mrs Pierce lodged an application for review to the Tribunal (T1).
Evidence of Mrs Pierce
Mrs Pierce told the Tribunal that she first met her husband in 1943, when he was serving in the Merchant Navy. Mr Pierce was younger than Mrs Pierce and she believed her husband was aged 26 or 27 years when they met. They married a year after they met on 12 September 1994.
Mr Pierce told the Tribunal that she and her husband did not discuss the war very much at that time as he was a quiet man and did not like talking about his experiences. Mrs Pierce also stated that because of the nature of his service he had to keep matters very confidential.
When on leave during his service, Mr and Mrs Pierce would go out to restaurants or hotels and on occasion, Mr Pierce may have talked about his fear of being on convoy duty and being attacked by the enemy. Later, there were times when Mr Pierce told his wife of watching other vessels being bombed and torpedoed in the Atlantic and Pacific Oceans. Mr Pierce described how her husband would take supplies and provisions to various destinations in Europe and also would take "fresh men" to these various European destinations. He would then return with the injured or the bodies of those who had been killed at war.
In her statement, Mrs Pierce described her husband's horror at watching other vessels being bombed and torpedoed in the Atlantic and Pacific Oceans. Mr Pierce's eyes would fill up with tears when describing the number of sailors, both German and Allied, who were left in the sea to drown after attack. Mrs Pierce stated that her husband found this extremely stressful and disturbing.
Mrs Pierce described one experience when her husband was on leave when in Liverpool, England and she had joined him for this period of leave. There was bombing all around on one occasion. This sort of stress Mrs Pierce experienced herself and imagined that her husband would also have experienced this at sea. Mrs Pierce noted that out of 10 or 12 convoys, her husband's ship was one of the few which was not torpedoed or bombed and noted that her husband would have had to have witnessed other ships in the convoy being blown up (Exhibit A2).
Mrs Pierce was not sure whether or not Mr Pierce smoked or consumed alcohol before his service. She believed that he may have learned to smoke during his service. She herself also smoked. Mrs Pierce noted that Mr Pierce smoked after the war and continued smoking until 1997, and not 1967 as had been previously reported. Mrs Pierce noted that her husband would sit in the garden and smoke and she believed smoking relaxed him.
In her statement, Mrs Pierce noted that, based on her knowledge of Mr Pierce's family, which was strict, he would not have smoked prior to service. Mrs Pierce noted that her husband was raised by his mother and grandmother in a "proper manner" and neither were "smokers or drinkers" (Exhibit A1). Mrs Pierce did understand that her husband was very young when he joined the Merchant Navy.
When Mr and Mrs Pierce met, Mrs Pierce believed that her husband was smoking regularly on social occasions and he told her that he smoked at sea. Mrs Pierce was unable to estimate the quantities of cigarettes Mr Pierce smoked, either before service or during service. However, she stated that Mr Pierce smoked at sea because there was a shortage of food and they smoked to help them deal with this. Mrs Pierce estimated that after service, her husband would smoke 10 cigarettes per day both tailor made and roll your own.
Mrs Pierce stated that she came to Australia to live in 1946 because she had married an Australian. Initially, they lived in rooms in Randwick. Mrs Pierce stated that in their early married life, her husband was undertaking work dredging on the harbour and then short trips down the East Coast of Australia. At that time, Mrs Pierce thought her husband was consuming alcohol at a local hotel, noting that the landlady of their rooms had a daughter who was a bar maid at that hotel. Mrs Pierce stated that in these early days of their married life, her husband may sometimes have consumed alcohol at home or sometimes he would not. Mrs Pierce estimated that her husband was a moderate drinker before the war but after that there were times when he drank too much. He would drink with his meals.
Mr and Mrs Pierce had four years of married life before having children. When Mrs Pierce knew she was first pregnant, she and Mr Pierce moved "to the bush". Mr Pierce was growing pumpkins and Mrs Pierce was undertaking home duties. Their life was happy, Mrs Pierce recalled. Mrs Pierce could not then recall when her husband started to drink "too much". She noted a change in his behaviour when they moved to Stockton in Newcastle and Mr Pierce had commenced work at BHP. He was extremely unhappy in this work, Mrs Pierce told the Tribunal. In trying to ascertain details about Mr Pierce's drinking history at that time, Mrs Pierce told the Tribunal that she believed her husband's drinking pattern changed considerably for the worse when her oldest child was approximately 6 years old. Mr Pierce had a very "bad bout". Mrs Pierce could not be definite as to why, noting that perhaps it was just because he was fed up with BHP. For a long time, Mr Pierce went to the local Returned and Services League ("RSL") Club to drink.
Mrs Pierce noted in her statement of 15 September 2000 (Exhibit A2) that she and her husband did not separate in 1970, they just lived apart.
After Mr Pierce left BHP, Mrs Pierce could not recall with any definity whether or not Mr Pierce's pattern of alcohol consumption changed for the better or worse. Mrs Pierce stated that she tried to protect the children from knowing about their father's drinking habit, but the children would ask questions such as "Is Dad drunk or can I ask him something?". Mrs Pierce noted therefore that she could not hide Mr Pierce's drinking from them completely, but she did try to protect them. It was, after all, a wife's job to look after the men who came back from the war, Mrs Pierce stated.
There was another occasion when a skipper of a dredge that Mr Pierce was working on told her that her husband was drinking too much. There were too many instances, the skipper explained to Mrs Pierce, where her husband's drinking was dangerous and, the skipper had told Mr Pierce that he could no longer provide him with any work. In trying to work out when this incident occurred, Mrs Pierce told the Tribunal that that was when the children were 10 and 8 years old. It seems from Mrs Pierce's evidence that it was also around this time that Mr Pierce used to "fall flat on the kitchen floor" and the children had to help him get up. Mrs Pierce thought that this was a drunken fall but on reflection, considers that it may have been the manifestation of epilepsy.
When Mr Pierce came back from work, having drunk at the local RSL club, he would eat his dinner and then go and lie down to sleep. This did not bother Mrs Pierce because it meant that she had her hands free to care for the children and it was a way for her to "get rid of him". Mrs Pierce confirmed evidence that while her husband may have consumed alcohol before the children were born, he was not drunk as far as she knew, and certainly not to the level when the children were much older, from the time when they were between 7 and 10 years old. Mrs Pierce noted that not only were there problems with the skipper at her husband's dredging work, but that Mr Pierce would often drive his car after he had been drinking.
Mrs Pierce told the Tribunal, and it was noted in her statements, that it was very difficult for her to remember all of these details so long ago and it was also painful for her to recall her husband in terms which did not portray him in such a good light. Her husband was a good man, she stated, although it had to be recognised that he did drink heavily (Exhibit A2).
Statement of Mr Stan PierceMr Stan Pierce is Mr Pierce's elder brother. In April 2000, he provided a statement (Exhibit A3) in which he noted that he had not seen his brother for 20 years but recalled that Mr Pierce did not like talking about his war-service. Mr S Pierce noted that his brother would write letters to their mother during the period of his service and their mother would read the letters out to him. From his recollection of these letters, Mr S Pierce indicated that his brother was on the "Atlantic run" for many years and involved in many invasions. Mr R Pierce would write that enemy submarines were spread around the Atlantic area and they were "a big worry" to him and he would be especially nervous and agitated before going into action. Mr S Pierce noted that his brother's service involved continual travelling in areas where there was a "gauntlet of the submarines which were spread across the Atlantic". Mr S Pierce also noted that the ships were shelled often and his brother had been very lucky that his ship was not sunk. Mr R Pierce was involved in the delivery of food and artillery supplies to England, his brother reported.
In relation to his brother's smoking history, Mr S Pierce stated that he would describe Raymond as an occasional smoker after he joined the Merchant Navy as a cadet in 1932. However, upon returning home after the war, he described his brother as a "chain smoker", estimating that Mr Pierce would smoke approximately 50 cigarettes per day.
Statement of Mr Donald MacCallumMr MacCallum provided a statement dated 12 April 2000 (Exhibit A4). Mr MacCallum noted that he had not served with Mr Pierce; however, Mr MacCallum's father was the master of the ship "HENRY DUNDAS" during the period in which Mr Pierce served in the ship.
From discussions with his father, Mr MacCallum noted that the "HENRY DUNDAS" was involved in dangerous operations. Mr MacCallum described how the ship carried 10,000 tonnes of high octane fuel and that it was a prime target for the enemy. The "HENRY DUNDAS" sailed in highly dangerous areas in the North Atlantic Ocean where there were many submarine attacks, Mr MacCallum noted. While the "HENRY DUNDAS" was not attacked, Mr MacCallum noted that approximately 30 or 40 tankers were attacked and a number of these ships were identical to the "HENRY DUNDAS" in terms of their duties.
Mr MacCallum noted that the majority of crewmen at sea smoked on these merchant ships due to the stress of war-time. He cited other reasons why crewmen smoked, namely:
" (1) it was fashionable;
(2)cigarettes were easy to obtain;
(3)cigarettes were cheap;
(4)cigarettes were widely publicised and the great number of varieties was emphasised." (Exhibit A4)
Medical Evidence
Dr Geoffrey Miller, Occupational Physician
Dr Miller provided a report dated 26 May 2000 (Exhibit A5). Dr Miller noted that the first blood pressure reading in documents appeared to be on 19 August 1962, when Mr Pierce had a reading of 190/120.
In relation to ischaemic heart disease, Dr Miller concluded that this condition was diagnosed and had its onset in 1967 when Mr Pierce was admitted to Royal Newcastle Hospital on 13 June 1967.
Dr Miller opined that in relation to Mr Pierce's smoking history, he was definitely a heavy smoker during the war and subsequently, but he noted that Mrs Pierce was vague about the actual date when he ceased smoking because they had lived apart after 1970.
In relation to Mr Pierce's alcohol intake, Mrs Pierce had reluctantly admitted to Dr Miller that her husband was frequently drunk after the war, he often drove his car after drinking and she would not let the children be driven by him when this happened. Mrs Pierce had also described to Dr Miller the occasion when the skipper of a dredge had advised her that her husband was drinking too much. Dr Miller found it difficult, in his discussions with Mrs Pierce, to assess the amount of alcohol consumed by Mr Pierce.
Dr Miller concluded that Mr Pierce suffered from recurrent congestive cardiac failure during the last few years of his life and this was a major factor contributing to his death. Dr Miller opined:
"…his ischaemic heart disease was contributed to by his long standing smoking history, his hypertension, his obesity and his diabetes mellitus. I believe, on the balance of probabilities, that his ischaemic heart disease contributed materially to his congestive cardiac failure." (Exhibit A5)
Dr Miller described the relationship between ischaemic heart disease and Mr Pierce's war-service, noting that in relation to smoking, Mr Pierce satisfied the Statement of Principles concerning Ischaemic Heart Disease, Instrument Number 38 of 1999, meeting factor 5(e)(ii). Dr Miller stated that he was unable to confirm that Mr Pierce's smoking was caused by his war-service. This was confirmed in Dr Miller's supplementary report of 20 February 2001 (Exhibit A6).
In relation to hypertension, Dr Miller noted that Mr Pierce's circumstances satisfied factor 5(a) of Instrument Numbers 38 and 39 of 1999 concerning Ischaemic Heart Disease. Dr Miller noted that on the balance of probabilities and also as a reasonable hypothesis, Mr Pierce's hypertension was contributed to by his alcohol abuse and that he satisfied the Statement of Principles concerning Hypertension, Instrument Numbers 25 and 26 of 1999 and specifically factor 5(b).
Dr Miller was satisfied that the definition of alcohol abuse contained within the hypertension Statement of Principles was met, in that there was a history of alcohol use in situations in which it was physically hazardous, for example, when Mr Pierce drove his car when drunk. Dr Miller concluded that Mr Pierce continued his alcohol consumption despite persistent, recurrent, social or interpersonal problems caused or exacerbated by the effects of the alcohol. In view of Mrs Pierce's history, Dr Miller opined that Mr Pierce's alcohol use satisfied the Statement of Principles concerning Alcohol Dependence or Alcohol Abuse, and specifically factors 5(b) and (d) of Instrument Number 76 of 1998. In this regard, Dr Miller opined that Mr Pierce had suffered a severe stressor.
In relation to obesity, Dr Miller opined in his report of 20 February 2001 (Exhibit A6) that Mr Pierce was obese in 1967. At that time he weighed 16 stone and 5 pounds and his Body Mass Index ("BMI") was 35.4. Dr Miller opined that it was likely, both as a reasonable hypothesis and on the balance of probabilities, that Mr Pierce's obesity was contributed to by his excessive consumption of calories in the form of alcohol and that this calorific intake was excessive. The difficulty Dr Miller found, however, was that there is no record of Mr Pierce's base line weight, so he could not conclude that there had been a weight gain of 20 per cent on his base line weight. Accordingly, it was not possible for Dr Miller to find that Mr Pierce satisfied the definition of obesity in the relevant Statements of Principles.
In relation to diabetes mellitus, Dr Miller wrote that he had little doubt that Mr Pierce's smoking and obesity contributed to diabetes mellitus, but Dr Miller did not have enough information concerning either Mr Pierce's smoking or obesity histories to relate these two factors to his diabetes and therefore to Mr Pierce's war service.
At hearing, Dr Miller heard Mrs Pierce's evidence. He concluded that although there were some gaps in Mrs Pierce's history concerning her husband and that Mrs Pierce may have had slight memory problems, been confused or contradictory of herself, despite this Dr Miller did not see any reason to change the opinions expressed in his two reports. Dr Miller stated that he believed Mrs Pierce's description of life with Mr Pierce indicated that she was adjusting to living with a person who abused alcohol. In relation to the date of onset of alcohol abuse, Dr Miller initially opined that alcohol abuse appeared to have had its onset during war-service. In cross-examination, however, Dr Miller conceded that he had no evidence of Mr Pierce's alcohol consumption during service and therefore there was not sufficient information as to whether there was indeed an onset during service. The only firm evidence provided was about the drinking of alcohol after service. All Dr Miller was able to conclude was that post-service Mr Pierce suffered from alcohol abuse, but he could not give the date of onset because Mrs Pierce herself could not be clear about this. Dr Miller was asked whether there could be other factors leading to alcohol abuse, unrelated to service. Dr Miller noted it was difficult to deal with this issue when it is not really known what alcohol consumption there was, either prior to service or during service and non-service periods. Dr Miller noted that while Mr Pierce was living in Randwick, he would go the hotel. It was difficult to tell what the level of consumption was at that time, but certainly subsequently there was heavy alcohol consumption leading to abuse.
Associate Professor RP Mattick, Director of Research, National Drug and Alcohol Research Centre, Faculty of Medicine, University of New South WalesAssociate Professor Mattick provided a report dated 21 August 2000 (Exhibit R2). Associate Professor Mattick opined that in relation to Mr Pierce's smoking, it was difficult to provide a confident analysis because of the lack of evidence. Associate Professor Mattick noted that there are a variety of smoking histories, ranging from Mr Pierce's smoking in 1942 when Mrs Pierce met him and smoking 10 cigarettes per day or at least 20 to 40 cigarettes per day. Mr Stan Pierce, Mr Pierce's elder brother noted that Mr Pierce was smoking 50 cigarettes per day. A report of a specialist on 21 November 1967, indicated that at that time Mr Pierce had not smoked for the past three months and was consuming approximately 6 pints of beer per day (T3, p13). Mrs Pierce had more recently noted that her husband did not cease smoking until 1997 (T4).
In relation to Mr Pierce's alcohol consumption, Associate Professor Mattick opined that Mr Pierce probably did meet the criteria for alcohol abuse, based on Mr Pierce having difficulty in interacting with his wife and family. Associate Professor Mattick noted Mrs Pierce's evidence to him that her husband did drink a lot but that the problem was in the 1950s, when she had to go and stay in a Salvation Army shelter for three weeks after her husband had been drinking heavily. Mrs Pierce's evidence to Associate Professor Mattick was that Mr Pierce would not drink and drive his car frequently, but may have done so once a month. Associate Professor Mattick concluded that Mrs Pierce was "a vague and poor historian without any real knowledge of her husband's life history". Associate Professor Mattick did not know whether this was because Mrs Pierce's age affected her memory or whether it was because she did not spend time with her husband, as they seemed to have lived somewhat separate lives. Associate Professor Mattick noted Mrs Pierce denied that she and Mr Pierce ever separated. What was clear to Associate Professor Mattick was that Mrs Pierce did not know very much about her husband's war-service, his pre-war history or his history after the war, except that he did drink heavily after the war.
Associate Professor Mattick noted an onset of poorly controlled diabetes from the mid 1980s.
Associate Professor Mattick concluded that it was difficult to provide confident analysis, given the lack of information in the case. He opined that there was no evidence that Mr Pierce's smoking was caused by his service, explaining that he noted Mr Pierce had joined the Merchant Navy seven years prior to the commencement of World War II. Associate Professor Mattick opined that it was very common for Merchant Navy sailors to smoke heavily. It was also common for men generally at that time to smoke. Therefore Associate Professor Mattick had difficulty forming a link between Mr Pierce's smoking and his service. Dr Miller also had difficulty finding a war-caused smoking habit, Associate Professor Mattick noted. In relation to whether or not Mr Pierce had an alcohol abuse condition, Associate Professor Mattick opined that Mr Pierce may have experienced stressful events on service, but it was difficult to conclude a war-caused alcohol abuse problem when Mrs Pierce did not know when her husband first drank. It was noted that Mr Pierce was in the Merchant Navy for eight years prior to service and it was in those circumstances extremely likely that he drank alcohol prior to war-service. After the war Mr Pierce did not drink heavily until many years after his service, Associate Professor Mattick concluded.
Associate Professor Mattick summarised his opinion, stating that he did not believe that there were any clear facts on which there could be a link established between Mr Pierce's service and his drinking and smoking. Associate Professor Mattick concluded:
"10.9.1I do not believe that it is clear whether Mr Pierce smoked and drank heavily prior to his eligible and operational service. I do not believe that anybody has this information. If a reasonable hypothesis has to be consistent with known facts, I doubt that such a hypothesis can be formed.
10.9.2I note that Dr Miller seems to have formed a reasonable hypothesis in his brief five page report. I cannot find evidence in Dr Miller's report to support his view.
10.9.3From my perspective I cannot form a hypothesis which is based on known facts which suggests that Mr Pierce's drinking after service was caused by service events.
10.9.4There is no evidence that I could find that Mr Pierce's smoking was caused by service events." (Exhibit R2)
Dr RJ Omond, General Practitioner
Dr Omond provided a report to Newcastle Legacy on 29 October 1997 (T10). Dr Omond provided an opinion based on the history he took from Mr Pierce, as well as his observations over two years. Dr Omond noted:
"Factor (b) Diabetes Mellitus was present from the mid 80's.
(c) Obesity was present for at least 10 years prior to development of his clinical cardiac failure.
The cardiac failure (of ischaemic origin) developed in the late 80's." (T10, p35)Dr Omond noted that Mr Pierce was a smoker but ceased in 1967.
SubmissionsMr Vindin, for the Applicant, submitted that Mr Pierce had a lengthy period of stressful operational service in dangerous circumstances.
At the outset, the Tribunal was referred to Re Towle and Repatriation Commission (2000) 31 AAR 414, in which Mrs Towle was seeking to obtain a War Widow's Pension by establishing that her husband's death from prostate cancer was war-caused, arising out of Mr Towle having had an increase in animal fat consumption related to his service. In that case, the Tribunal noted the issue of Mr Towle's post-war dietary history and lack of evidence, because of impaired recall over the passage of time and other difficulties. In those circumstances, that Tribunal nevertheless was satisfied, after the careful consideration of the material, that the factor had been met in the relevant Statement of Principles.
Mr Vindin submitted that the main hypothesis upon which the Applicant relies is that Mr Pierce had a war-caused alcohol abuse problem which caused hypertension, which in turn led to congestive cardiac failure from ischaemic heart disease, the cause of Mr Pierce's death. An alternate submission presented to the Tribunal is that Mr Pierce had a war-caused smoking habit which led to his ischaemic heart disease. Other hypotheses put to the Tribunal are that Mr Pierce had war-caused obesity caused through alcohol abuse which led to ischaemic heart disease and finally, the submission that diabetes mellitus from which Mr Pierce suffered, led to the onset of ischaemic heart disease.
Mr Vindin contended that the line of causation is that stress during Mr Pierce's operational service led to his alcohol use and later abuse, and also caused his smoking to increase. These factors then contributed to Mr Pierce's death from ischaemic heart disease.
The Tribunal was referred by Mr Vindin to Hughes v Repatriation Commission (1991) 25 ALD 192, which involved a claim by a widow that her husband's death from cancer of the pancreas was linked to a war-caused smoking habit. While that case dealt with a smoking factor, Mr Vindin submitted that the principles found by the Federal Court equally applied to the issue of alcohol consumption. Mr Vindin submitted that in Hughes (supra) there was evidence that Mr Hughes had not been a smoker before service but he smoked after service, after a period. Despite no direct evidence as to when or in what circumstances Mr Hugh acquired his smoking habit during war-service, it was accepted that a reasonable hypothesis had been raised which was not disputed by the facts.
Mr Vindin contended that Mr Pierce's circumstances met factor 1(a) of Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse. factor 1(a) states:
"(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;
…
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
"stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."
Mr Vindin submitted that both Dr Miller and Associate Professor Mattick agree that Mr Pierce had an alcohol abuse condition and Mr Pierce had experienced a number of stressful events on service. Thus a reasonable hypothesis had been raised. Noting the evidence of Mrs Pierce, Mr MacCallum and Mr Stan Pierce, Mr Vindin submitted that the facts are not disproved beyond reasonable doubt, that in fact Mr Pierce did experience a stressful event as defined and that his alcohol abuse condition met the required definition of alcohol abuse. There were no facts therefore, to disprove beyond reasonable doubt the reasonable hypothesis that Mr Pierce had a war-caused alcohol abuse problem.
The next link of Mr Vindin's hypothesis is that a war-caused alcohol abuse problem caused hypertension, which then led to Mr Pierce's death from ischaemic heart disease. While Associate Professor Mattick opined that Mr Pierce's alcohol abuse was not war-caused, Mr Vindin submitted that Associate Professor Mattick's conclusion was based on the use of too high a standard of proof. Mr Vindin submitted that the Tribunal need only consider whether the facts were disproved beyond reasonable doubt. Mr Vindin submitted that on the evidence available, the facts were not disproved beyond reasonable doubt. Mr Vindin urged on the Tribunal the contention that a hypothesis can contain elements of assumption which must stand, unless they are disproved beyond reasonable doubt. There is no evidence, Mr Vindin submitted, to displace the assumptions upon which the Applicant rests her case. The Tribunal must take into account the extent and severity of stresses experienced by Mr Pierce and also the difficulties a 90 year old widow has in remembering events and evidence. Mr Vindin submitted, however, that Mrs Pierce's recall of events and anecdotes are compelling and great weight should be placed upon it.
In relation to the issue of Mr Pierce's smoking, while noting that neither Dr Miller nor Associate Professor Mattick can support a war-caused smoking habit, a reasonable hypothesis is still raised that Mr Pierce smoked because of the extreme stress of his war-service. Mr Vindin contended that the facts on this issue are not disproved beyond reasonable doubt. This contention is based on Mrs Pierce's evidence and also that of her brother-in-law, Mr Stan Pierce.
Mr Vindin noted that he did not "abandon" the contentions in relation to obesity and diabetes. He relied on the photographs provided by Mrs Pierce as indicative of a war-caused obesity through alcohol consumption and further, the inference could be drawn in relation to diabetes mellitus, that factors of obesity and smoking could have caused diabetes, which had its onset in the mid 1980's. Diabetes mellitus, it is contended, then led onto ischaemic heart disease from which Mr Pierce eventually died.
Mr Vindin referred the Tribunal to Dixon v Repatriation Commission (1999) 59 ALD 315, in which the Federal Court found that that tribunal had erred in law, in that it considered the truth of Mr Dixon's evidence when examining the reasonableness of the hypothesis raised. The testing of evidence and the facts should be left to the final stage of the Tribunal's reasoning process when considering the application of subsection 120(1) of the Act. Mr Vindin urged the Tribunal not to err in considering the facts of the matter at the stage of whether or not a reasonable hypothesis has been raised and rather, should consider this as a final step in determining whether the facts were disproved beyond reasonable doubt, as required under subsection 120(1) of the Act.
Ms Hook for the Respondent submitted that in order to prove a line of causation of death in Mr Pierce's case, that there were a number of conditions which were part of the causal chain. Ms Hook referred the Tribunal to McKenna v Repatriation Commission (1999) 86 FCR 144, which determined that when there is a chain of sub-hypotheses leading to a hypothesis, then each link in the chain must be tested and in this case tested against the Statement of Principles. Thus, since the Applicant was relying on hypertension as a link in the cause of death from ischaemic heart disease, then it must be proven that hypertension was service-related. The Applicant would then need to consider the relevant Statement of Principles concerning Hypertension and meet, as a minimum, one of the factors. From Mr Vindin's submission the relevant factor would be alcohol abuse, Ms Hook contended.
Ms Hook noted that the first record of high blood pressure occurred in August 1962, as noted by Dr Miller. Ms Hook submitted that the clinical onset of hypertension was in 1962. In order to satisfy factor 1(a) or (b) of the Statement of Principles concerning Hypertension, Instrument Number 83 of 1995, Mr Pierce would need to prove to the requisite Statement of Principles that he was suffering from persistent obesity before and continuing at least until the accurate determination of hypertension (1(a)), or satisfy that he suffered from psychoactive substance abuse involving the daily consumption of alcohol before, and continuing at least until, the accurate determination of hypertension (1(b)).
Dealing firstly with obesity, Dr Miller's conclusion in relation to obesity is that Mr Pierce's circumstances do not satisfy a conclusion that he had a war-caused obesity, particularly as Mr Pierce's baseline weight was not able to be determined. Further, in relation to factor 1(b), it was difficult to make a finding beyond reasonable doubt or on the balance of probabilities that Mr Pierce was drinking on a daily basis up until 1962. Further, the Tribunal has to determine whether, if a diagnosis of alcohol abuse is satisfied, whether in fact alcohol abuse is war-caused, Ms Hook contended.
Ms Hook noted that Mr Pierce had been out of the service for approximately 10 years before there seems to be any clear evidence, as provided by Mrs Pierce, that her husband had an alcohol abuse problem. Further, Ms Hook noted that Mr Pierce had separate periods of both operational and eligible service and it was not known what happened in between the gaps of service. Also causing difficulty in terms of findings on the facts, is the evidence that Mr Pierce ran away to sea and that his first operational service was some eight or ten years after he left home.
In relation to smoking, Ms Hook submitted that there is evidence that Mr Pierce smoked before service but no evidence as to the levels of consumption at that time. There was no consistent estimate of what Mr Pierce smoked on service and again no consistent facts as to the level of cigarette consumption after service.
While Ms Hook accepted that Mr Pierce did have stressful service, she submitted that there were not sufficient facts to satisfy the requirements linking his service and death. There simply is insufficient evidence for the Tribunal to conclude any of the sub-hypotheses as put by Mr Vindin.
In relation to the issues of obesity and diabetes, that is predicated on alcohol abuse and service being linked and again, Ms Hook submitted that this link is not proven.
FindingsThe Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and case law.
In reaching a determination as to whether Mr Pierce's death was war-caused, in line with the steps as noted in Deledio v Repatriation Commission (1997) 47 ALD 26, and as cited with approval in Dixon v Repatriation Commission (supra), the Tribunal must look firstly at whether a reasonable hypothesis is raised in terms of subsection 120(3) of the Act and then whether there are facts raised pursuant to subsection 120(1) of the Act to support the raised reasonable hypothesis. In relation to Mr Pierce's eligible service, the Tribunal must determine matters on the balance of probabilities.
There have been a number of submissions made by the Applicant in relation to the chain of causation leading to Mr Pierce's death. It is common ground and found by the Tribunal that the principal cause of Mr Pierce's death was congestive cardiac failure. The relevant Statements of Principles for operational and eligible war-service are Instrument Numbers 140 and 141 of 1996, as amended by Instrument Numbers 77 and 78 of 1997 concerning Ischaemic Heart Disease. Mr Vindin, on behalf of Mrs Pierce, seeks to rely on the factors of hypertension, diabetes mellitus, obesity and smoking in those Statements of Principles. Further, the factor of hypertension is predicated on Mr Pierce having a war-caused alcohol abuse problem.
Before turning to examine each of the hypotheses put by Mr Vindin, the Tribunal considers that if there are sub-hypotheses leading in a chain of causation to Mr Pierce's eventual death from ischaemic heart disease, then each of the sub-hypotheses must be examined in relation to any Statements of Principles or determinations under the Act, as was outlined in McKenna (supra).
Alcohol AbuseThe Applicant's main contention is that Mr Pierce had a war-caused alcohol abuse condition, which then led to his suffering hypertension which eventually led to his death from ischaemic heart disease. Examining the issue of Mr Pierce's alcohol abuse condition, the general hypothesis raised is that alcohol abuse led to Mr Pierce suffering from hypertension. Firstly, the Tribunal turns to consider whether or not a reasonable hypothesis is raised that Mr Pierce has a war-caused alcohol abuse condition or on the balance of probabilities, the circumstances of his service indicate an alcohol abuse problem arising out of his eligible war-service.
In relation to Mr Pierce's operational service, the Tribunal finds that the general hypothesis raised of a stressful event causing Mr Pierce to consume alcohol to an abusive level is not fanciful. Accordingly, the Tribunal is of the view that Mr Pierce's circumstances indicate that factor 1(a) of Instrument Number 5 of 1994, concerning Psychoactive Substance Abuse or Dependence is met and a reasonable hypothesis has been raised pursuant to subsection 120(3) of the Act.
The Tribunal then turned to examine whether or not, pursuant to subsection 120(1) of the Act, there are sufficient facts which are evident to support the raised reasonable hypothesis. There is no dispute between the parties that Mr Pierce's service would have been stressful and the Tribunal accepts that Mr Pierce would have experienced a number of stressful events on operational service.
Both Dr Miller and Associate Professor Mattick agree that Mr Pierce had an alcohol abuse problem. The difference comes between these two experts as to whether the causation of the alcohol abuse condition related to Mr Pierce's service. The Tribunal finds that Mr Pierce did have an alcohol abuse condition. The great difficulty, however, lies in determining the cause of Mr Pierce's alcohol abuse and its onset. The evidence in terms of the level of alcohol consumption pre, during and post-war is extremely problematic. There are references in hospital and clinical notes of alcohol consumption at various levels after service. Mrs Pierce's evidence, as the Tribunal understands it, is that while Mr Pierce consumed alcohol during the war and post-war, the level of abusive or excessive alcohol consumption did not occur until the children were between approximately eight and ten years old. It seems also to the Tribunal, based on Mrs Pierce's consistent evidence to the Tribunal and others, that the level of abusive or excessive alcohol consumption relates to Mr Pierce being unhappy about his work at BHP in the 1950's. This was after the family moved to Stockton, well after the war and when the children were older.
There are significant gaps also in the evidence before the Tribunal as to what level of alcohol consumption Mr Pierce had prior to his periods of operational or eligible war-service. While the Tribunal notes the statement of Mr Stan Pierce, it is not clear what contact Mr Stan Pierce had with his brother when Mr Pierce left home to join the Merchant Navy, when he was approximately 16 years old. While it is clear that at that age at home it is unlikely that Mr Pierce consumed alcohol, it is also well known and asserted by an expert in the field of alcohol and drug abuse and addiction, Associate Professor Mattick, that workers in the Merchant Navy consumed high levels of alcohol. Further, Mr Pierce has periods of operational and non-operational service and gaps between these. The Tribunal has no facts as to the level of drinking or causes of drinking when Mr Pierce was not in service.
In coming to a determination on this and a number of inconsistencies and deficits in Mrs Pierce's and others' evidence, the Tribunal has turned to consider section 119 of the Act. Section 119 of the Act generally is taken to assist veterans and applicants in noting difficulties in providing evidence, particularly with the passing of time, failing memory and poor records. The section enables a body making an administrative decision to be flexible in its procedures and attempts to ensure that technical rules do not restrict the provision of substantial justice. The Tribunal notes Repatriation Commission v Bey (1997) 79 FCR 364, in which that matter dealt with the consideration of a causative link between arthritis and war-service. The Court noted in that case;
"…For the reasons we have given, in order for the hypothesis advanced by the respondent to be reasonable there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal's obligation to act in accordance with law:…"
(At 79 FCR 373)While it is possible in matters in this jurisdiction to apply subsection 119 of the Act to possibly allow inferences or assumptions, acknowledging, for example, the difficulties of the passing of time and a person's recollections, the Tribunal does not in this case consider that the inconsistency or gaps in the evidence or absence of evidence allow it to find that the available facts point to a war-caused alcohol abuse condition. The Tribunal also has difficulty finding facts to support beyond reasonable doubt that Mr Pierce had war-caused alcohol abuse, given the evidence that Mr and Mrs Pierce lived apart for many years. To reach a finding of service-related alcohol abuse would involve gross speculation which the Tribunal does not consider is within the scope of the Act. Thus, while the Tribunal accepts that Mr Pierce had an alcohol abuse problem, the Tribunal finds that the manifestation of it occurred well after the war and for reasons more likely to be related to his dissatisfaction with his employment or other personal aspects of his life. Further, the Tribunal considers that Mr Pierce had a well-established pattern of alcohol consumption before his service that continued until his dissatisfaction with work. Accordingly, in relation to Mr Pierce's operational service, the Tribunal is not satisfied beyond reasonable doubt and, having reviewed the whole of the material before it, it cannot accept sufficient of the facts as are necessary to support the raised hypothesis that Mr Pierce had a stressful event which caused an alcohol abuse problem. Accordingly, the Tribunal is satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Pierce's condition of alcohol abuse is war-caused.
Similarly, for the reasons set out above, the Tribunal is not satisfied that factor 1(a) of Instrument Number 6 of 1994 is raised by the evidence in this case and accordingly, the Tribunal is reasonably satisfied that the material does not raise a connection between Mr Pierce's eligible war service and his alcohol abuse condition.
Alcohol Abuse and HypertensionAs the condition of alcohol abuse has been found not to be related to either Mr Pierce's operational or non-operational service, the Tribunal then turned to consider the Statements of Principles for Hypertension, Instrument Numbers 83 and 84 of 1995, in relation to factor 1(b) in both Statements of Principles. The Tribunal finds that for operational service, pursuant to subsection 120(3) of the Act, factor 1(b) is not met because Mr Pierce has been found not to have a war-caused psychoactive substance abuse condition. Accordingly, the Tribunal finds that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act and further, the Tribunal is satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Pierce's hypertension was war-caused through alcohol abuse.
In relation to Mr Pierce's non-operational service, the Tribunal finds that it is reasonably satisfied that factor 1(b) of Instrument Number 84 of 1995 is not met and therefore the material does not raise a connection between Mr Pierce's alcohol abuse and hypertension and his relevant service as required by the Act.
Obesity and Ischaemic Heart DiseaseMr Vindin further submitted that Mr Pierce was obese and his obesity was service-related, leading to the onset of ischaemic heart disease from which Mr Pierce died. The obesity was linked, Mr Vindin submitted, to Mr Pierce's having a service-related alcohol abuse problem.
In relation to Mr Pierce's operational service, certainly factor 5(c) of the relevant Statements of Principles for Ischaemic Heart Disease is raised in that Mr Pierce was obese for at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease, which was in 1967. Therefore, in relation to operational service, pursuant to subsection 120(3) of the Act, factor 5(c) is met and a reasonable hypothesis raised, linking obesity to ischaemic heart disease.
The Tribunal turned to consider the application of subsection 120(1) of the Act to ascertain whether the facts support the raised hypothesis.
The Tribunal accepts, as do the experts in this matter, that Mr Pierce was obese at the time of the onset of ischaemic heart disease. The difficulty for all concerned relates, however, to whether or not Mr Pierce's obesity is service-related. Turning to the definition of obesity within the relevant ischaemic heart disease Statement of Principles, there is no evidence as to Mr Pierce having a 20 per cent increase in his baseline weight, as there is simply no evidence as to what that baseline weight might have been. Photographs provided by Mrs Pierce, while instructive, do not assist the Tribunal, as was confirmed by Dr Miller, in coming to any understanding or appreciation of Mr Pierce's baseline weight. In such circumstances there are not any facts to support there being a war-caused obesity. Further, Mr Vindin relied on the alcohol abuse condition as causing an increase in calorific intake in excess to Mr Pierce's need. The Tribunal has, however, already found that while Mr Pierce had an alcohol abuse condition, this condition was not war-caused. In all the circumstances, in relation to Mr Pierce's operational service, the Tribunal finds pursuant to subsection 120(1) of the Act, that it is satisfied beyond reasonable doubt that it cannot accept sufficient of the facts as necessary to support the hypothesis of a war-caused obesity leading to ischaemic heart disease, from which Mr Pierce eventually died.
In relation to Mr Pierce's non-operational service, the Tribunal finds that factor 5(c) of Instrument Number 141 of 1996, as amended, is not raised by the evidence and therefore the Tribunal is reasonably satisfied that the material does not raise a connection between Mr Pierce's obesity and ischaemic heart disease.
Obesity and HypertensionFor completeness, the Tribunal has considered factor 1(a) of the relevant Statements of Principles concerning Hypertension, Instrument Numbers 83 and 84 of 1995. The Tribunal has already found that Mr Pierce did not have service-related obesity. Accordingly, considering Mr Pierce's operational service, as Mr Pierce does not meet factor 1(a) of the relevant Statement of Principles, then a reasonable hypothesis has not been raised pursuant to subsection 120(3) of the Act. Accordingly, under the provisions of subsection 120(1) of the Act, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Pierce's hypertension was war-caused through obesity. Similarly, in relation to Mr Pierce's non-operational service, the Tribunal is reasonably satisfied that factor 1(a) in the relevant Statement of Principles is also not met and no connection is raised between Mr Pierce's obesity and hypertension.
The Tribunal considered that no other factors in the relevant Statement of Principles concerning Hypertension were met. Accordingly the Tribunal finds on all the available evidence that Mr Pierce's hypertension was not service-related.
Hypertension and Ischaemic Heart DiseaseAs the Tribunal has found that hypertension is not service-related, then factor 1(a) in the relevant Statement of Principles is not met. Accordingly, in relation to operational service, as the material therefore does not raise a reasonable hypothesis for the purposes of subsection 120(3) of the Act, the Tribunal is satisfied beyond reasonable doubt under the provisions of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Pierce had war-caused ischaemic heart disease caused by hypertension. Similarly, in relation to Mr Pierce's eligible war service, the Tribunal finds that factor 1(a) is not met and the Tribunal is reasonably satisfied that the evidence does not indicate a connection between hypertension and ischaemic heart disease.
Smoking and Ischaemic Heart Disease
The Tribunal next considers the issue of Mr Pierce's smoking and whether or not he had a service-related smoking habit, which then related either directly to ischaemic heart disease or through diabetes mellitus, to ischaemic heart disease. Considering Mr Pierce's operational service, factor 5(e) of Instrument Number 140 of 1996, as amended required the smoking of at least 5 cigarettes per day for at least three years before the clinical onset of ischaemic heart disease. At the outset, based upon Mrs Pierce's evidence, the Tribunal took the cessation of smoking as 1997, although there is other medical evidence that Mr Pierce's smoking ceased in 1967. Taking the cessation of smoking as 1997, then certainly at the time of the onset of ischaemic heart disease, which was in 1967, factor 5(e) is met. Accordingly, pursuant to subsection 120(3) of the Act, a reasonable hypothesis is raised and the Tribunal turns to consider the application of subsection 120(1) of the Act, as to whether or not there are facts available to support the raised reasonable hypothesis.
As with the difficulties discussed above in relation to making findings about Mr Pierce's alcohol consumption history, similar difficulties have been experienced by the Tribunal in relation to Mr Pierce's tobacco consumption. The Tribunal finds that the evidence on Mr Pierce's smoking history is extremely varied and on many occasions inconsistent. There are also gaps in the history. The Tribunal finds that Mr Pierce ran away to join the Merchant Navy when he was approximately 16 years old. It is accepted that he smoked before service but the question as to what level is unable to be determined. Mr Pierce's brother, Stan, states that to his knowledge Mr Pierce was an occasional smoker before service and a chain smoker after he returned. The difficulty in considering Mr Pierce's smoking is that there is a gap as to what the actual level of smoking was between Mr Pierce working in the Merchant Navy and his eventual war service some eight years after leaving home. Further, Mrs Pierce's smoking questionnaire stated that she did not know when her husband commenced smoking or at what rate, only being able to confirm he ceased smoking in 1997 (T9). In later statements and at hearing, however, Mrs Pierce's evidence was that there was a shortage of food when Mr Pierce was on war service and he smoked to compensate. He also used smoking to relax himself. Dr Miller concluded that he did not have enough information concerning smoking to link this to Mr Pierce's war-service. This was still the case despite Dr Miller hearing Mrs Pierce's evidence. Associate Professor Mattick was also unable to conclude on the information available to him that there was a war-cased smoking habit. It is difficult in these circumstances to make any finding as to war-caused smoking, given the lack of evidence concerning pre-service and service tobacco consumption levels.
The Tribunal also considered Mr McCallum's statement concerning smoking amongst those in the Merchant Navy. The Tribunal reiterates, however, that it does not know the level of smoking and reasons associated with the individual circumstances of Mr Pierce, particularly noting that he had served in the Merchant Navy from age 16 years. There are also gaps in Mr Pierce's service which the Tribunal has no way of accounting for in terms of the level of cigarette consumption, nor the reasons for it.
Accordingly, the Tribunal finds, pursuant to subsection 120(1) of the Act that on all of the information available to it, the Tribunal is satisfied beyond reasonable doubt that it cannot accept sufficient of the facts as necessary to support the raised hypothesis that Mr Pierce had a war-caused smoking habit. It follows therefore, that the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Pierce had a war-caused smoking habit of at least five cigarettes per day for at least three years before the clinical onset of ischaemic heart disease.
Similarly, in relation to Mr Pierce's non-operational service, the Tribunal finds that factor 5(e) of Instrument Number 141 of 1996, as amended, are not raised by the evidence. The Tribunal is therefore reasonably satisfied that the evidence does not raise a connection between Mr Pierce's smoking and his ischaemic heart disease.
Diabetes Mellitus and Ischaemic Heart Diseasefactor 5(b) in the relevant Statements of Principles concerning Ischaemic Heart Disease requires suffering diabetes mellitus before the clinical onset of ischaemic heart disease. The Tribunal is also required to consider the Statements of Principles concerning Diabetes Mellitus, which are Instrument Numbers 47 and 48 of 1996, as amended by 187 and 188 of 1996, as diabetes mellitus is part of the sub-hypotheses leading to ischaemic heart disease and death. factors 5(b) and (c) deal with firstly, being obese for a period of at least ten years before the clinical onset of diabetes mellitus (5(b)), or smoking at least ten cigarettes per day for at least 20 years and continuing to do so within the ten years immediately before the clinical onset of diabetes mellitus (5(c)). The Tribunal has already determined that Mr Pierce did not suffer from either war-caused obesity or a war-caused smoking habit. In such circumstances, in relation to Mr Pierce's operational service, pursuant to subsection 120(3) of the Act, factors 5(b) and (c) are not met and therefore no reasonable hypothesis is raised. Accordingly, the Tribunal is satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Pierce's diabetes mellitus was caused either because of obesity or his smoking.
In relation to Mr Pierce's non-operational service, similarly the Tribunal finds that on the available evidence, factors 5(b) and (c) of the relevant Statement of Principles dealing with the obesity and smoking factors and are not met by the evidence. Accordingly, the Tribunal is reasonably satisfied that there is no connection between Mr Pierce's condition of diabetes mellitus and his eligible war service.
As the sub-hypothesis of diabetes mellitus being linked to ischaemic heart disease is not found, in relation to factor 5(b) of the relevant Statements of Principles concerning Ischaemic Heart Disease, the Tribunal finds that in relation to Mr Pierce's operational service, no reasonable hypothesis is raised pursuant to subsection 120(3) of the Act and accordingly, the Tribunal is not satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act that there is no sufficient ground for determining that Mr Pierce's ischaemic heart disease was caused by diabetes mellitus.
Similarly, in relation to Mr Pierce's non-operational service, the evidence does not support the diabetes mellitus factor being met and accordingly, the Tribunal is reasonably satisfied on that material before it that Mr Pierce's ischaemic heart disease was not related to his non-operational service through diabetes mellitus.
In conclusion and for all the reasons set out above, the Tribunal finds that for both Mr Pierce's operational and non-operational service, his death from ischaemic heart disease was not linked to any period of service through factors such as smoking, alcohol abuse, hypertension, obesity or diabetes mellitus. In all these circumstances the Tribunal affirms the decision under review.
I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr MEC Thorpe, Member
Signed: ...........[sgnd]...................................................................
Stella Vaughan, AssociateDate of Hearing 27 February 2001
Date of Decision 22 May 2001
Counsel for the Applicant Mr C Vindin
Solicitor for the Applicant Mr D Kemp, Dibbs, Crowther and OsborneAdvocate for the Respondent Ms P Hook, Advocate, Department of Veterans' Affairs
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