Poole and Repatriation Commission
[2006] AATA 671
•1 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 671
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/19
VETERANS' APPEALS DIVISION ) Re NOREEN POOLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date1 August 2006
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and determines that –
1. the veteran died from Chronic Obstructive Airways Disease (COAD)
2. the contribution of COAD to the veteran’s death was a significant cause
3. the death of Frederick Poole was war caused.
......[Sgd]......
KS Levy
Member
CATCHWORDS
VETERANS AFFAIRS – veterans’ entitlements – application for compensation – war-caused death – Deledio test – veterans’ death was war-caused - decision under review set aside
Veterans’ Entitlements Act 1986: ss 8 (1), 120(1) (3)
Statement of Principles No 30 of 2004
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Towns [2003] FCA 1262.
Benjamin and Repatriation Commission (2003) 70 ALD 622
Repatriation Commission and Gosewinckel (2000) ALD 690 at 691
Repatriation Commission v Deledio [1998] 83 FCR 82 at 82.
Repatriation Commission and Stares (1996) 41 ALD 212 at 217
Bushell and Repatriation Commission (1992) 175 CLR 408
Byrnes and Repatriation Commission (1993) 177 CLR 564 at 569
East v Repatriation Commission (1987) 16 FCR 517 at 532 to 533
Doolette and Repatriation Commission (1990) 21 ALD 489
Treloar and Australian Telecommunications Commission (1990) 97 ALR 321 and 328REASONS FOR DECISION
1 August 2006 Dr KS Levy, Member INTRODUCTION
1. The applicant’s husband Frederick Poole (the veteran) died on 30 August 2004. He was a veteran of World War II and served with the Royal Australian Air Force (RAAF) in the United Kingdom and saw operational service while posted there during World War II. The veteran died from aspiration pneumonia, advanced Alzheimer’s disease and a number of related or concurrent conditions.
2. The applicant submitted an application to the Repatriation Commission on 20 October 2004, for the veteran’s death to be recognised as being war caused. This application was rejected by the Repatriation Commission on 25 November 2004 and on review, was rejected by the Veterans’ Review Board on 27 October 2005. The applicant now seeks review of that decision by the Administrative Appeals Tribunal.
3. The applicant was represented by Mr P B O’Neill, Barrister-at-Law, instructed by Files Stibbe Lawyers. The respondent was represented by its advocate, Mr J Kelly.
BACKGROUND
4. The veteran was born on 16 December 1924. He enlisted in the RAAF during World War II on 30 January 1943 and saw operational service while posted to the United Kingdom. He was discharged from the RAAF on 19 December 1945. The veteran and the applicant were married on 31 January 1948. He died on 30 August 2004 at the age of 79 years.
5. The material before the Tribunal showed the veteran had recognised service related disabilities of Peripheral Vascular Disease and Bilateral Sensori-neural hearing loss with tinnitus”.
6. The causes of death shown on the death certificate for the veteran were listed as:
·Aspiration pneumonia;
·Advanced Alzheimer’s disease
ISSUES
7. The issues in this case are:
a.Whether the veteran died from chronic obstructive airways disease (COAD) or emphysema?
b.Whether that condition made a contribution to the veteran’s death, which was not merely de minimis?
c.Was the veteran’s death war-caused within the meaning of s 8 of the Veterans’ Entitlements Act 1986 (“the Act”).
RELEVANT STATUTES AND RELATED INSTRUMENTS
8. The following statutory provisions are relevant:
“VETERANS' ENTITLEMENTS ACT 1986
War-caused death
8. (1) Subject to this section, for the purposes of this Act, the death of a
veteran shall be taken to have been war-caused if-
……
(b) the death of the veteran arose out of, or was attributable to, anyeligible war service rendered by the veteran
……
120. (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;
….
(3) In applying sub-section (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.
9. As this claim was made after 1 June 1994, the application must be evaluated with respect to any relevant Statements of Principles (SoPs) issued by the Repatriation Medical Authority (RMA) under s 196B. It was common ground that the only relevant SoP is: Instrument Number 30 of 2004 – Chronic Bronchitis and Emphysema.
STANDARD OF PROOF
10. The veteran had operational service and evidence to this effect was provided in a letter dated 6 October 1993 issued by the Department of Defence (Air Force Office). See T documents (folio 1). This certification was undisputed. The Standard of Proof therefore required to link the veteran’s war service to his death is that of a reasonable hypothesis (see s 120(3)). Once a reasonable hypothesis is established, the relevant connection of the death to war service will be proved unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1)). In assessing whether the standard of proof is reached, the Tribunal must have reference to SoP Number 30 of 2004 in relation to technical definition of emphysema. In addition, the SoP prescribes under Clause 5A as follows:
“Factors
5. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and emphysema or death from chronic bronchitis and/or emphysema with the circumstances of a person’s relevant service is:
(a) smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or….”.
11. The term “pack years of cigarettes, or the equivalent thereof in other tobacco products” is defined in paragraph 8 of the SoP as follows:
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack years of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination; ….”.
12. This refers to a standard of 20 tailor made cigarettes per day for a calendar year or 7300 cigarettes per year.
13. In respect of other aspects of the claim, particularly in relation to diagnosis, the “reasonable satisfaction” standard is the appropriate standard (s 120(4)); and Repatriation Commission and Gosewinckel (2000) ALD 690 at 691. This is generally accepted as equating to the civil standard of proof. Benjamin and Repatriation Commission (2003) 70 ALD 622 and Fogarty and Repatriation Commission (2003) FCAFC 136.
EVIDENCE
14. The following documentary exhibits were admitted into evidence:
· Exhibit 1 – Statement of the Applicant dated 6 March 2006;
· Exhibit 2 - the T documents lodged under s37 of the Administrative Appeals Tribunal 1975;
· Exhibit 3 – Report of Dr Mansood Khan dated 20 February 2006
· Exhibit 4 – the Applicant’s solicitors Statement of Facts and Contentions
· Exhibit 5 – the Respondent’s Statement of Facts and Contentions
· Exhibit 6 – Article from Department of Veterans’ Affairs website entitled “Your Lungs – take a deep breath”.
15. The only witnesses who gave evidence at the hearing were the applicant, Mrs Noreen Poole together with the veteran’s treating general practitioner, Dr Mansood Khan.
MRS NOREEN POOLE
16. The witness was referred to her statement, Exhibit 1. She stated the contents of that statement were correct. It referred to the witnesses’ husband being employed as a wireless operator/gunner with the RAAF in World War II and that he served in the United Kingdom and flew in Wellington and Lancaster Bombers. The veteran had told the applicant of numerous bombing raids he participated in over Germany and that it was very stressful. He states that he lost friends who had been shot down by enemy fire who were in other aircraft.
17. The veteran told the applicant that he had taken up smoking shortly after being stationed in the United Kingdom. Cigarettes were issued to him by the RAAF and he thought that smoking helped him cope with the stress of war at that time.
18. The applicant’s statement attests to the veteran continuing smoking on his return from World War II and he smoked around 30 cigarettes per day until the early 1990s and then smoked a pipe. He smoked approximately four ounces of tobacco per week. This continued until approximately 2001 when the veteran did not have the strength to even light a cigarette.
19. The applicant’s evidence was also that her husband was diagnosed with emphysema in about 1989. He had breathing difficulties then and was prescribed inhalers to assist his breathing. He gradually ceased normal activities such as mowing the lawn and ultimately sold his boat. She said that the veteran did very little exercise from that time and he could only walk very short distances.
20. In oral evidence she reiterated that her husband was diagnosed with emphysema in 1989 by Dr Edwards. She also stated that he got colds easily and his emphysema got gradually worse and he contracted pneumonia quite a few times. He suffered pneumonia every year and went into a nursing home in 2003. He passed away in 2004.
21. In cross-examination by Mr Kelly the applicant stated that her husband had been bed-ridden from approximately 2001. She cared for him at home until he went into the nursing home in 2003 but he was incapacitated because of his chest condition and he also had Alzheimer’s Disease. She said that he lost the will to live from about 2001, as the essential incidents of living took much effort and in addition, he had other conditions such as kidney disease and oesophageal stricture.
DR MANSOOD KHAN
22. Dr Khan stated that he was admitted as a medical practitioner and had been so admitted for 15 years. He has been a general practitioner at Bribie Island for five years and the deceased Frederick Poole had been his patient from approximately 2002 until his death in 2004.
23. Counsel for the applicant referred the witness to his statement dated 20 October 2004 (folios 25 to 31 of the T documents) and his statement dated 20 February 2006 (Exhibit 3). Dr Khan said that both those statements were correct. Evidence was given that the veteran suffered emphysema which is also known as chronic obstructive airways disease. It was accepted by both counsel at this point that the terms emphysema and chronic obstructive airways disease were synonymous for the purposes of the hearing and that it was the same condition that was covered by SOP number 30 of 2004.
24. Dr Khan gave evidence that emphysema was caused by smoking. He was also the medical practitioner who certified the death certificate of the veteran. He stated that the veteran’s emphysema is recorded as going back 15 to 20 years. Emphysema is a condition that worsens over time and that it is a “progressive thing”. It was a case involving long term emphysema and when asked why he had not noted this as a cause of death on the death certificate, Dr Khan stated that the veteran had had many medical problems and at that time he thought it was mainly aspiration pneumonia which was the cause of death. However, he stated that he should have noted emphysema on the death certificate also.
25. Counsel for the applicant referred to a document from the Department of Veterans’ Affairs website. It is a publication entitled “Your lungs – take a deep breath (chronic bronchitis and emphysema)” (exhibit 6). The Respondent’s advocate had not been given prior warning that this document would be raised, and copies were made and distributed to the respondent’s advocate and the Tribunal. After referring to the content of this article in exhibit 6, Dr Khan said that the long term emphysema made the veteran more susceptible to pneumonia. He also stated that he thought pneumonia as a short term condition, was also a cause of death. It was a complex mix of factors and said that the emphysema caused a worsening of the veteran’s whole condition and caused the aspiration pneumonia. He had recurrent chest infections and gave evidence consistent with paragraphs 3, 4 and 5 of his statement of 20 February 2006 (exhibit 3).
26. In cross-examination by Mr Kelly, Dr Khan stated that he saw the veteran 19 times over a two year period. He was well aware of his condition but had two files, an old and a new file. He said that he had been aware of most of the veteran’s problems, particularly his on-going problems, but he had a number of conditions which could have contributed to his death, of which chronic bronchitis was one of them. He did not put emphysema as one of the causes in the death certificate but in his report dated 23 November 2004, shortly after the veteran’s death, he stated that the veteran had been “….. suffering from advanced Alzheimer’s disease with accompanying severe neuro psychological deficit. This led to immobility and respiratory impairment, leading to aspiration pneumonia. There was no other specific lesion contributing directly to his death.” Dr Khan stated that his opinion at that time was that aspiration pneumonia was the over-riding cause which is a mechanical form of difficulty due to the late stage of pneumonia when food and liquid ends up on the lungs and is unable to be cleared. This is also part of the consequence of the advanced stages of Alzheimer’s disease.
27. Dr Khan agreed with Mr Kelly that the veteran would have died from aspiration pneumonia. However, Dr Khan then stated that other conditions were contributory, including chronic obstructive airways disease/emphysema as well as kidney impairment. When asked which one of them might be “on the top of the list” as a cause of death, Dr Khan indicated chronic obstructive airways disease. He indicated also that while he was treating the veteran for all of his conditions up to the time of death, he was so debilitated that he was not in a condition even to puff on an inhaler. He said he was bed-ridden because of Alzheimer’s disease but when questioned how much longer the veteran may have lived had he not had this long disease, he would only say that the probability would have been higher that he would have died sooner if he had emphysema than if he did not have that condition.
SUBMISSIONS
28. Mr O’Neill referred the Tribunal to his written submissions which were lengthy. They covered detailed aspects of legal authorities as well as medical reports such as that of Dr Clifford W Pollard (folio 19). That report was dated 9 May 1997 and referred at that time to the veteran having been on courses of steroid tablets for persisting pneumonia. He also referred to Dr Khan’s evidence and particularly that his evidence before the Tribunal was that he was of the opinion that the veteran’s death was hastened by emphysema.
29. Mr Kelly also referred to various legal authorities and took a responsible position in relation to the connection of smoking and the veteran’s emphysema. However, based on the evidence that had been put to the Repatriation Commission and the Veterans’ Review Board he argued that the respondent’s case was about the role which emphysema played in the veteran’s death and whether that role was any more than de minimis. He submitted that at 79 years of age, that even without chronic obstructive airways disease, the applicant’s husband was going to die sometime from Alzheimer’s disease. He also reminded the Tribunal that Dr Khan was not a respiratory specialist.
30. Mr Kelly referred the Tribunal to the decision of Repatriation Commission v Towns [2003] FCA 1262 where, at paragraph 30, his Honour Tamberlin J stated that the term “kind of death” is “wide reaching”. That decision held that the expression “kind” did not require a precise medical causation to be delineated. The respondent’s advocate also submitted that Frederick Poole died from “a basket of conditions” and submitted that the over-riding cause was Alzheimer’s disease.
CONSIDERATION
31. In arriving at a determination in this matter, the Tribunal has considered all of the oral evidence and documentary exhibits. Also, all relevant statutory and case law and relevant legislative instruments have been thoroughly considered.
Diagnosis
32. It is the role of the Tribunal to determine the most appropriate diagnosis. In the present case, this amounts to the most appropriate diagnosis of the cause of death. This determination is to be made by the Tribunal on the balance of probabilities and must consider the “collection of relevant symptoms” and to the appropriate SoPs (see Fogarty and Repatriation Commission 2002 FCA 1541).
33. The diagnosis here is the diagnosis of the cause of death. Relevantly, the death certificate shows the causes of death to be:
a.Aspiration pneumonia; and
b.Advanced Alzheimer’s disease.
34. Durations of these illnesses were certified as:
a.Aspiration pneumonia – one week;
b.Advanced Alzheimer’s disease – two years.
35. The medical attendant certifying the causes of death was Dr Mansoon Khan, the treating general practitioner of the deceased. Dr Khan also provided evidence at the hearing.
36. The history shows, and it was common ground with both the applicant and the respondent, that the veteran had emphysema (chronic obstructive airways disease) and this was due to his tobacco smoking addiction. It was also common ground that the veteran had started smoking while in the RAAF during World War II, when he was issued with cigarettes. The applicant argued that emphysema was a significant factor contributing to the veteran’s death. The respondent argued that it had a de minimis effect.
37. The report of Dr Khan of 23 November 2004 (folio 32, exhibit 2) shows that the over-riding cause of death being Alzheimer’s disease which resulted in “immobility and respiratory impairment leading to aspiration pneumonia”. In his report dated 3 December 2004 (folio 39), Dr Khan indicates “a significant history of COAD/emphysema” and concluded “emphysema could have hastened his demise”.
38. The facts show that some of Dr Khan’s current opinions were not apparent to the Veterans’ Review Board or made available to the respondent prior to that hearing. Dr Khan, in his report of 20 February 2006 (exhibit 3), elaborated some of his views even further than he did in his report of 3 December 2004. In exhibit 3, he stated that the veteran suffered chronic obstructive airways disease, oesophageal stricture, cervical and thoracic spondylosis, renal impairment, post herpetic neuralgia, skin cancers (non melanotic) and dementia of Alzheimer’s disease. He also had had some vascular procedures in 1994. He noted also the diagnosis by Dr John Vincent of emphysema in 1989 and a spirometry assessment by Dr Edwards in 1996 and confirmed moderately severe airways obstruction. Subsequent investigations were said to reveal gradual deterioration of pulmonary disease. Dr Khan’s report also noted that the veteran’s emphysema limited his exercise endurance and had a tendency to develop respiratory conditions and also to aspiration pneumonia in the terminal phase of his illness.
39. Clearly, of relevance to this application, is the evidence that the applicant was 79 years of age and had smoked for about 45 years. He had consumed, using the basic calibrations set out in SoP number 30 of 2004 a minimum of 5 pack years of cigarettes as specified. In fact, based on 1½ pack years per calendar year from 1943 to 1990, would result in the veteran consuming 72 pack years of tobacco. The applicant argued another four ounces of tobacco was consumed between 1990 and 2000 (approximately). This would amount to a further 7.5 to 8 pack years of tobacco. Therefore the veteran would have consumed approximately 80 pack years of tobacco in his life since his service in RAAF in World War II, compared to the minimum standard in the SOP of 5 pack years..
40. Based on this estimated quantity, the veteran had consumed about 16 times the minimum pack year specification set out in SoP number 30 of 2004. This is a relevant consideration in determining what would be a reasonable link to the diagnosed condition of COAD/emphysema.
41. The difficulty with a diagnosis in this case, is that the conditions suffered by the deceased at the time of his death, were numerous. These are mentioned above and were contained in Dr Khan’s report of 20 February 2006 (exhibit 3). That assessment includes reliance on earlier evidence by other medical practitioners including Dr John Vincent in 1989, Dr Edwards in 1996 and a more recent report by Dr McLaren in September 2005, where, the latter practitioner undertook a cardiac assessment of the veteran “which ruled out cardiac failure” .
42. Dr Khan’s evidence was that the veteran’s conditions limited his exercise endurance and increased tendency to develop respiratory infection, including aspiration pneumonia. He also said in oral evidence that he believed the veteran’s emphysema did contribute to his death and that with the benefit of hindsight, he should have also included emphysema on the death certificate.
43. While Dr Khan’s opinions have vacillated to some degree at times between 2004 and 2006, the evidence is unequivocally multi-factorial. However, the pulmonary conditions of COAD/emphysema are recorded back as far as 1989 and is also recorded independently as showing a gradual deterioration through the mid-1990s. The effect of emphysema on the veteran’s state of health at the time of his death, may be open to speculation, but Dr Khan, the treating medical practitioner, who had seen him 19 times before his death, and since the date of death, has had access to a greater analysis of the historical medical information. It seems reasonable to conclude that diagnosis should recognise that the veteran died from emphysema, in addition to the conditions which are formally certified by Dr Khan on the death certificate.
Preliminary Questions
44. The Tribunal must consider two pre-conditions before the substantive questions set out in the relevant legislation and SoPs are dealt with. These pre-conditions are:
a.Was Mr Poole a veteran under the Veterans Entitlements Act 1986?
b.Is the “kind of injury or disease” in question consistent with a Statement of Principle which has been issued?
45. In respect of (a) no challenge is made to the veteran’s apparent war service. In respect of (b), the Tribunal has found that the applicant had emphysema, which is covered by SoP number 30 of 2004. Therefore the veteran satisfies both pre-conditions.
Clinical Onset
46. Factor 5 of SoP number 30 of 2004 refers to a minimum criterion before a reasonable hypothesis can be raised connecting the death of the veteran with war service. This is:
“(a) Smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or …..”
47. Identifying the “clinical onset” within the chronology of facts requires establishing a sufficient proximity of the events claimed to be associated with the veteran’s operational service and the manifestation of the disease and death.
48. Given the analysis presented under “diagnosis”, and the evidence of the medical records of Dr John Vincent in 1989, diagnosing chronic obstructive airways disease for the veteran, the Tribunal accepts that clinical onset of emphysema first occurred in 1989. This is corroborated by the evidence that by that time, the applicant would have smoked over 70 pack years of cigarettes in comparison to the minimum standard of five pack years set out in the SoP.
Is The Standard Of Proof Satisfied?
49. The standard of proof is set out in s 120 (1) and s 120(3). To evaluate the requirements of s 120(3), four steps were set out by the Full Court of the Federal Court in Repatriation Commission and Deledio 1998 83 FCR 82 at 82. These steps are:
“1. 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.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(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.
3. 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 s196B(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.
4. The tribunal must then proceed to consider under s120(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.” (at 49 ALD 206)”.
Step 1 of Deledio
50. In Step 1, the evidence must contain material which can establish an hypothesis which connects the applicant’s emphysema with facts or evidence generally which could link the veteran’s smoking habit which emanated during World War II to his emphysema and death. An hypothesis is a proposition which can be accepted as being intuitively logical but without any substantive truth at that stage. In Repatriation Commission v Stares (1996) 41 ALD 212 at 217, it was said that “a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact”.
51. The Tribunal must also have regard to the requirements that it must make its decision “after consideration of all of the material” (Bushell and Repatriation Commission 1992 175 CLR 408). In addition to all of the oral and documentary evidence, the Tribunal has considered Exhibit 6. That document suggests that chronic bronchitis and emphysema “usually occur in people who have smoked or continue to smoke cigarettes”. It also explained that air passes into the bronchi in the lungs and then into further subordinate bronchial passages called bronchioles and alveoli. It is the latter category where oxygen is absorbed into the blood stream. In emphysema, alveoli are destroyed and those suffering the disease have difficulty absorbing enough oxygen. Therefore, their capacity to breathe in and breathe out is progressively diminished.
52. On the basis of this material and the submission made by the applicant and the acknowledgement by the respondent, the Tribunal finds an hypothesis is made out which connects the condition of emphysema at death to smoking which commenced during RAAF service.
Step 2 of Deledio
53. Step 2 seeks to identify a SoP which has been issued by the RMA and which is relevant to the disease and death in question. The relevant instrument is number 30 of 2004 – chronic bronchitis and emphysema.
Step 3 of Deledio
54. This step requires an assessment of whether the hypothesis in Step 1 is reasonable. A reasonable hypothesis is raised not by the existence of a mere possibility, but where the evidence shows “….. some positive inference in favour of a connection between the injury, disease or death and the veteran’s or members particular service” (see explanatory memorandum to Act Number 98 of 1994 at page 107).
55. In assessing whether a raised hypothesis is “reasonable”, the Tribunal is obliged to follow the decision of the High Court of Australia in Byrnes and Repatriation Commission 1993 177 CLR 564 at 569 which held that a reasonable hypothesis is raised when “….. the material points to some fact or facts (‘the raised facts’) which support the hypothesis”. Further, at page 571, the High Court said in relation to this step that:
“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.”
56. Clearly, to establish a reasonable hypothesis, there must be material before the Tribunal which fit the template of the SoP for chronic bronchitis and emphysema. The relevant provisions in the SoP are as follows:
“Chronic Bronchitis and Emphysema
2. (a) This Statement of Principles is about chronic bronchitis and emphysema and death from chronic bronchitis and/or emphysema, either alone or in combination (my underlining).
…….
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and emphysema or death from chronic bronchitis and/or emphysema with the circumstances of a person’s relevant service is:
(a)smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
…..
Other definitions
8. For the purposes of this Statement of Principles:
….
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;”.
57. Having regard to the SoP, the third step in the Deledio process involved the Tribunal making a macro level assessment of the applicant’s story to see whether it fits the template in the SoP. Findings of fact are not made on the basis of this assessment. At this point, however, if the applicant’s story does not fit within the template of the SoP, it will be rejected, but the applicant’s story must be a credible proposition and one that is 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.” (East v Repatriation Commission 1987 16 FCR 517 at 532 to 533).
58. In practical terms, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility (Gilbert and Repatriation Commission 1989 86 ALR 713). (Repatriation Commission v Bey 1997 79 FCR 364). The “points to” test was approved by the High Court in Bushell (supra) and it was held that the test in s 120(3) will manifest a reasonable hypothesis in circumstances where “….. there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with operational service”. The Tribunal must therefore consider whether the applicant’s health was severely undermined by his emphysema, and whether it was significant or de minimis in the scheme of other conditions which the veteran suffered prior to death. In other words, the Tribunal must determine whether the veteran’s death was, among the array of conditions he suffered, predominantly attributable to his smoking addiction and emphysema, and that these conditions would seem reasonably to have their origins during the veteran’s operational service.
59. The respondent argued that emphysema had a de minimis effect. If so, the applicant’s case fails. In arguing to the contrary, the applicant referred the Tribunal to Doolette and Repatriation Commission (1990) 21 ALD 489, where it was held that with respect to causation, the factor involved does not have to be the sole causation. Counsel for the applicant also submitted to the Tribunal, the relevance of the judgment of O’Loughlin J at page 490, where his Honour said: “…. if death is hastened because of the accelerated progress of a disease and that acceleration was itself caused by a war-related condition, death would be attributable to service.”
60. That case is also authority for the principle that ‘the cause need not be the sole or dominant cause’ – it only needs to be established that where there are a number of causes, the cause in dispute is one of the contributing causes (see page 492).
61. The applicant’s Counsel also urged the Tribunal to follow the Full Federal Court decision in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 and 328, where the Court said that in determining the effect or contributing factors, “…. it matters not whether the contribution was of any particular size or degree”.
62. The Tribunal considers that, having accepted that emphysema should have been included on the death certificate (as put in evidence by Dr Khan), and given that a number of the veteran’s conditions at the time of death were related to or emanated from his emphysema, and that the relationship between emphysema and war service is accepted by the respondent, it must follow then for the purposes of s 120(3), that the evidence is not “contrary to known scientific facts” nor is the hypothesis fanciful or untenable. The facts, particularly the evidence provided by Dr Khan of earlier medical evidence which was not available to the Veterans Review Board, points to the material raising a “reasonable” hypothesis that the death was war caused.
Step 4
63. This is the last step in the Deledio analysis. It assesses whether s 120(1) is satisfied. That is, the Tribunal must accept that the death was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. As was held by the High Court in Byrnes and Repatriation Commission (1993) 177 CLR 564 at 571:
“(2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless¨ (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.” (my emphasis)
64. In this case, there is no evidence to disprove any facts which support the hypothesis beyond reasonable doubt. Equally, the Tribunal finds that there are no other facts inconsistent with those submitted which are proved beyond reasonable doubt and which could disprove the reasonable hypothesis beyond reasonable doubt.
65. In the circumstances, based on all of the evidence now available, the Tribunal sets aside the decision and determines that –
a. the veteran died from Chronic Obstructive Airways Disease (COAD)
b. the contribution of COAD to the veteran’s death was a significant cause
c. the death of Frederick Poole was war caused.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: J Lauriston
(for) Legal Research Officer
Date/s of Hearing 21 June 2006
Date of Decision 1 August 2006
Solicitor for the Applicant Files Stibbe Lawyers
Respondent Mr J Kelly, departmental advocate
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