Re Nora Ellis and Repatriation Commission

[2015] AATA 431

[2015] AATA 431

DivisionVETERANS’ APPEALS DIVISION

File Number  2012/4875

ReNora Ellis

APPLICANT

And  Repatriation Commission

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  19 June 2015

PlaceMelbourne

The Tribunal decides to:

1.set aside the decision of the respondent dated 21 February 2012 and affirmed by the Veterans’ Review Board on 26 September 2012; and

2.substitute a decision that the applicant’s death from hepatocellular carcinoma was war-caused within the meaning of the Veterans’ Entitlements Act 1986.

…[sgd] S A Forgie..

Deputy President

CATCHWORDS

VETERANS’ ENTITLEMENTS – whether death war-caused – principles relevant in determining whether reasonable hypothesis on whole of material – decision set aside

LEGISLATION
Military Rehabilitation and Compensation Act 2004
Veterans’ Entitlements Act 1986; sections 5C, 6A, 7, 8, 11, 13, 120, 120A

CASES
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 18 AAR 1; 30 ALD 1
Collins v Repatriation Commission [2009] FCAFC 90; 177 FCR 280; 258 ALR 204; 110 ALD 481
Dixon v Repatriation Commission [1999] FCA 582; (1999) 29 AAR 235; 59 ALD 315
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517; 74 ALR 518; 6 AAR 492; 12 ALD 389
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Hill v Repatriation Commission [2005] FCAFC 23; (2005) 218 ALR 251; 85 ALD 1; 40 AAR 500
Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365; 34 AAR 562
McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144; 29 AAR 70
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609
Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383
Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581
Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635; 36 ALR 411
Repatriation Commission v Stares (1996) 66 FCR 594; 41 ALD 212; 23 AAR 117
Repatriation Commission v Webb (1987) 76 ALR 131; 7 AAR 233
Re Ellis and Repatriation Commission [2013] AATA 433
Summers v Repatriation Commission [2015] FCAFC 36

OTHER MATERIAL

Statement of Principles concerning malignant neoplasm of the liver No.21 of 2011
Statement of Principles concerning diabetes mellitus No.89 of 2011

REASONS FOR DECISION

1. The late Mr Leslie Harold Ellis served in the Australian Army (Army) in Morotai and Japan during World War II.  After his death, his widow, Mrs Nora Ellis, applied for a pension.  The Repatriation Commission (Commission) refused Mrs Ellis’s application and the Veterans’ Review Board (VRB) affirmed that decision.  On 26 June 2013, a differently constituted Tribunal also affirmed the decision.[1]  On 11 August 2014, the Federal Court set the Tribunal’s decision aside and remitted the matter to be determined according to law.[2]  It was agreed between the parties, that the only issue to be decided on remittal was whether Mr Ellis’s death was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (VE Act).  I agree and have decided that his death was war-caused.

   [1] [2013] AATA 433

   [2] [2014] FCA 847

BACKGROUND

1. The parties agreed on the facts that I set out in this section of my reasons.  They are supported by the evidence in the material lodged in this matter.  On that basis, I find that Mr Ellis’s service in the Army extended from 8 April 1942 until 11 June 1947.  In view of that, he is taken to have rendered operational service within the meaning of s 6A of the VE Act.  It follows that, under s 7(1)(a), Mr Ellis is also taken to have rendered eligible war service.  Having rendered operational service, Mr Ellis is a veteran as that term is defined in s 5C(1). 

1. On 5 March 1947, Mr Ellis suffered an injury to his right knee.  It is described in one record as having occurred when he stepped from a transport vehicle while on duty in Japan.[3]  It is also described as having occurred on 3 March 1947 while he was playing football[4] but the difference is of no consequence for it is noted that he was on duty in both descriptions.  With regard to that injury, the Commission accepted that two conditions were war-caused.  Those conditions were internal derangement of the right knee and secondary localised osteoarthritis of the right knee. 

   [3] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 10

   [4] T documents; T3 at 6

1. The cause of Mr Ellis’s death was hepatocellular carcinoma (liver cancer), from which he suffered for one month and Type 2 diabetes mellitus and atrial fibrillation, both of which he had suffered for years.  At the time, he was also suffering from Type 2 Diabetes or, as it was previously known, non-insulin dependent diabetes mellitus.[5] 

   [5] Death Certificate; T documents; T5 at 31

LEGISLATIVE FRAMEWORK

1. If Mr Ellis’s death was “war-caused”, the Commonwealth is liable to pay pensions by way of compensation to his dependants in accordance with Part II of the VE Act.[6]  Mrs Ellis is a dependant as that term is defined in ss 11(1)(a) and (c). 

   [6] VE Act; ss 13(1)(a) and (c)

1. The expression “war-caused death” is defined in s 8.  Of relevance in this case is s 8(1)(b), which provides:

   “Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

   (a)…

   (b)the death of the veteran arose out of, or was attributable to any eligible war service rendered by the veteran;

   (c)-(f)…

   but not otherwise.”[7]

   [7] The qualification in s 9A of the VE Act does not apply as any aggravation of, or material contribution to, Mr Ellis’s diseases or injuries occurred before the commencement of the Military Rehabilitation and Compensation Act 2004.

1. Section 120(1) of the VE Act sets out the standard of proof to be applied where a claim has been made under Part II for a pension in respect of a veteran’s incapacity or death and the claim relates to operational service rendered by that veteran.  Where that is so:

   “… 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.”[8]

   [8] VE Act; s 120(1)

1. Section 120(3) deals with the circumstances in which the Commission “… shall be satisfied, beyond reasonable doubt, that there is no sufficient ground …” for making that determination.  They are as follows:

   “(3)      In applying subsection (1) … in respect of the incapacity of the 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.”

1. The scope of s 120(3) is strictly limited for s 120(4):

   “Except in making a determination to which subsection (1) … 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 pension granted under Part II …, decide the matter to its reasonable satisfaction.

   Note: This subsection is affected by section 120B.”

1. Nothing in s 120 or in the VE Act “… shall entitle the Commission to presume that … the death of a person is war-caused or defence-caused …”.[9]  Section 120(6) ensures that no onus of proof is imposed upon either a claimant or any other person.  It provides:

   “Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

   (a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

   (b)the Commonwealth, the Department or any other person in relation to such a claim or application;

   any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”

   [9] VE Act; s 120(5)(c)

1. Section 120A deals with the reasonableness of a hypothesis which is required to be assessed by reference to a Statement of Principles (SoP).  Sections 120A(2) and (3) provide:

   “(2)     If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of the person from an injury or disease of that kind, or in respect of the death of that kind, unless or until the Authority:

   (a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

   (b)has declared that it does not propose to make such a Statement of Principles.

   (3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

   (a)a Statement of Principles determined under subsection 196B(2) or (11); or

   (b)a determination of the Commission under subsection 180A(2);

   that upholds the hypothesis.”

ANALYSIS OF LEGISLATIVE FRAMEWORK

1. In the following table, I set out the questions that must be asked and answered in deciding whether a dependent of a veteran, who has operational service and who has died,[10] is eligible for a pension under s 13 of the VE Act.  The authorities, to which I refer in the table, are representative only of those that are relevant.  The references to provisions are to those in the VE Act requiring the relevant question to be asked or relating to the standard of proof.  As is made clear by s 120(6), no person carries an onus of proof. 

   [10] The questions are similar when a claim is made by a veteran for a pension in respect of a war-caused injury or war-caused disease but the section numbers differ to some extent.

1. The questions are consistent with those set out by the Full Court of the Federal Court in Repatriation Commission v Deledio.[11]  In saying that, I am mindful that “… a failure to follow the Deledio steps will not of itself give rise to an error of law. …”[12] and that “… the AAT is not obliged to proceed, step by step, in a mechanical manner. …”.[13]  As the  courts recognise, the Tribunal is obliged to apply ss 120(3) and 120A(3).  In practical terms, it may be that the four steps set out in Deledio provide an ordered and appropriate path to their application.  They provide, as it were, a deconstructed version of ss 120(3) and 120(3A) having regard to the role of the Repatriation Medical Authority (RMA) under s 196B of the VE Act.  It may be, though, that the application of the provisions requires an approach where the lines between the questions raised by those provisions is not quite so precise.  That is an approach more in tune with the provisions as they are written.  Which approach is taken depends, it seems to me, on the way in which the hypothesis is formulated.  For some the deconstructed approach offered by the Deledio steps will suit.  In this case, I have found the latter approach more appropriate.  Whichever approach is taken, the antecedent questions must be asked and findings made on the balance of probabilities.

   [11] [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144

   [12] Hill v Repatriation Commission (Hill) [2005] FCAFC 23; (2005) 218 ALR 251; 85 ALD 1; 40 AAR 500 at [80]; 266; 16; 516 per Wilcox, French and Weinberg JJ

   [13] Hill [2005] FCAFC 23; (2005) 218 ALR 251; 85 ALD 1; 40 AAR 500 at [85]; 267; 17; 517

No.	Principle	Authority	Provision
ANTECEDENT QUESTIONS
1. (1) (2) (3)	Decide antecedent questions on balance of probabilities: Has the veteran died? Is the claimant a dependant of the deceased veteran? What was the cause of death or kind of death of the veteran? (i)         “It may be observed that the Full Court variously referred to the ‘diagnosis’ of the injury or disease or the ‘characterisation’ of the injury or disease.  The same concept is conveyed by the use of the expression ‘medical cause’ of the injury or disease or death.  That is a question of fact to be decided by the decision-maker.” (ii)        “… [I]t was sufficient if the cause was one of a number of causes provided that it was a contributing cause in the sense of contributing to the death. …”	Repatriation Commission v Hancock[14] (Hancock) Collins v Repatriation Commission[15] (Collins 2009) Repatriation Commission v Law[16]	s 120(4) s 13(1)(a) ss  13(1)(c) and 11 s 13(1)(a)
CAUSATION PRINCIPLES
1.	“Section 120(1) is the ultimate provision to which ss 120(3) and 120A(3) and (4) lead. …”	Collins v Repatriation Commission[17] (Collins 2007)	s 120(1)
2.	The Commission (and so theTribunal on review): (i)         “… shall determine … that the death of the             veteran was war-caused …” (ii)        “… unless it is satisfied, beyond reasonable             doubt, that there is no sufficient ground for             making that determination.” (emphasis added)	s 120(1)
3.	The proviso is met if the Commission (and so the Tribunal on review): (i)         “… after consideration of the whole of the             material before it …” (ii)        “… is of the opinion that the material before it             does not raise a reasonable hypothesis             connecting the … death with the circumstances             of the particular service rendered by the             person.”	ss 120(3) and 120A(3)
CAUSATION QUESTIONS
1.	Identify a hypothesis or hypotheses.	ss 120(3) and 120A(3)
(1)	What is a hypothesis? (i)         “A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary.” (ii)        “To engage the process in ss 120(1) and 120A, a particular hypothesis must be identified. The language of “hypothesis” is significant: it is a textual indication of at least two matters.  First, the scheme’s recognition of the difficulties associated with establishing an injury, disease or death as war-caused, sometimes long after the relevant service; second, the beneficial threshold set by ss 120 and 120A.  A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: Repatriation Commission v Stares (1996) 66 FCR 594 at 601 per Black CJ, Ryan and Einfeld JJ.”	East v Repatriation Commission[18] (East) Forrester v Repatriation Commission[19] (Forrester)
(2)	In the context of ss 120 and 120A, “… a relevant hypothesis had to consist of a link or links which connected, at the one end, the disease [injury or death] which was the basis of … [the] claim under Pt II of the Act with, at the other end, the circumstances of the particular service rendered by … [the veteran]. …”.	McKenna v Repatriation Commission[20] (McKenna)
(3)	A claimant may identify more than one hypothesis and each hypothesis may contain one or more sub-hypotheses.	McKenna[21]
2.	Does the material raise a hypothesis?	s 120(3)
(1)	“The Tribunal must consider all the material before it …”	Deledio[22]
(2)	“No question of fact finding arises at this stage …”	Deledio[23] and Collins 2007[24]
(3)	“The formation of the opinion involves the reaching of a factual conclusion … and involves the assessment of all the material before the Tribunal but not the finding of facts or rejecting material …”	Collins 2007[25]
(4)	Does “… the material before it … raise a reasonable hypothesis connecting the … death with the circumstances of the particular service rendered by the person.”?	Collins[26]
(5)	“… Whether material points to or supports a hypothesis is a matter which can be determined by reference or assumption …”	Forrester[27]
(6)	The Commission (and the Tribunal on review) may identify a hypothesis not identified by the claimant. (i)         “           An inquisitorial review conducted by the AAT … is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, is obliged not to limit its determination to the ‘case’ articulated by the applicant …”. (ii)        An obligation to consider all the material and determine whether the material points to a hypothesis “… implies a duty to consider not merely the particular hypothesis  put forward, but also any other hypothesis fairly raised by the evidence.”	Grant v Repatriation Commission[28] Hill v Repatriation Commission[29]
(7)	“… If no such hypothesis arises, the application must fail.”	Deledio[30]
3.	Is the hypothesis reasonable? (Question asked without reference to s 120A and SoPs)	s 120(3)
(1)	“…The hypothesis will not be reasonable if it is contrary to known scientificfacts or is obviously fanciful or untenable. …”	Byrnes v Repatriation Commission[31]
(2)	“… A hypothesis will not be reasonable if it is: … obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous …”	Deledio[32]
(3)	“… The Tribunal is bound to have regard also to the material that is opposed to the material that supports a veteran’s claim for the purposes of examining the validity of the reasoning that supports the claim that there is a connection between the incapacity and the service.  However, a hypothesis may still be reasonable although it is unproved and is opposed to the weight of evidence.  The use of the terms ‘the material’ and ‘raise’ suggest that s 120(3) is not concerned with the proof or satisfaction of a claim, but whether there is some ‘material’ that calls for a determination under s 120 …”	Kattenberg v Repatriation Commission[33]
(4)	“… [W]hether an hypothesis is ‘reasonable’ is one thing; to determine whether, as a matter of professional opinion, the hypothesis represents the preferred view is a different matter; a number of opinions may be held by a number of experts in the field; each view may be reasonably held notwithstanding that they may lead to different conclusions. … It is possible, especially as here, where the aetiology of the disease is unknown, to have more than one reasonable hypothesis advanced which suggests different causes of the disease.  The exercise is not one of balancing or weighing the respective merits of a range of professional opinions.  Rather, it is a case of determining whether a particular theory has a rational foundation. …”	Repatriation Commission v Webb[34]
4.	If the hypothesis is reasonable without reference to s 120A and SoPs, is it also upheld by a SoP?	Note to ss 120(3) and 120A(3)
(1)	“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 s 196B(2) or (11). …” (i)               In any reconsideration the Tribunal should approach the question of the entitlement to the pension under the Act by reference to the SoP then currently in force and, if it becomes relevant by a negative answer to the first enquiry, then by reference to the SoP in force at the time of the Commission’s decision.”	Deledio[35] Repatriation Commission v Gorton[36] (Gorton)
(2)	If there is no SoP and the RMA does not propose to make a SoP in respect of the kind of death met by the person, s 120A(3) does not apply in relation to the claim.	s 120(4)(c)
(3)	“‘… [T]he SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case.  The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can “uphold” the hypothesis … the SoP is a subset of proved … or known … scientific fact.  Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.’	Deledio[37]	s 196B(2)
(4)	“… The hypothesis will not be reasonable if it is: ‘… inconsistent with (not upheld by) an applicable SoP’ …”	Deledio[38]
(5)	“… If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.”	Deledio[39]
(6)	“… [A]t this stage the decision-maker is not concerned with the accuracy of the material giving rise to the hypothesis; the decision-maker is still working under s 120(3). …”	Dixon v Repatriation Commission[40]
5. (1)	If there is a reasonable hypothesis, the decision-maker must decide whether he or she is satisfied beyond reasonable doubt that the death was not war-caused.   If it is not so satisfied, the claim succeeds.	s 120(1)
(2)	If so satisfied, the claim does not succeed.

[14] [2003] FCA 711; (2003) 37 AAR 383 at [9]; 385 per Selway J

[15] Collins v Repatriation Commission [2009] FCAFC 90; 177 FCR 280; 258 ALR 204; 110 ALD 481 at [19]; 284-285; 208; 485 per Mansfield and Stone JJ with whom Edmonds JJ agreed generally.

[16] [1981] HCA 57; (1981) 147 CLR 635; 36 ALR 411 at 648; 420 per Aickin J (with whom Gibbs CJ, Stephen and Mason JJ agreed) citing with approval the approach taken by the Full Court of the Federal Court below.

[17] [2007] FCAFC 111; (2007) 163 FCR 35; 46 AAR 56; 96 ALD 536 at [3]; 37; 58; 537 per Lindgren J

[18] [1987] FCA 242; (1987) 16 FCR 517; 74 ALR 518; 6 AAR 492; 12 ALD 389 at 532; 533; 507; 403 per Jenkinson, Neaves and Wilcox JJ

[19] [2013] FCA 898 at [23] per Mortimer J

[20] [1999] FCA 323; (1999) 86 FCR 144; 29 AAR 70 at [18]; 151; 76-77; Branson, Sundberg and Kenny JJ

[21] [1999] FCA 323; (1999) 86 FCR 144; 29 AAR 70 at [19]; 151; 77

[22] [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144 at 97; 206; 159 per full court of Beaumont, Hill and O’Connor JJ

[23] [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144 at 97; 206; 159

[24] [2007] FCAFC 111; (2007) 163 FCR 35; (2007) 46 AAR 56; (2007) 96 ALD 536 at [48]; 47; 68; 547 per Allsop J

[25] [2007] FCAFC 111; (2007) 163 FCR 35; (2007) 46 AAR 56; (2007) 96 ALD 536 at [48]; 68; 547 per Allsop J

[26] [2007] FCAFC 111; (2007) 163 FCR 35; (2007) 46 AAR 56; (2007) 96 ALD 536 at [48]; 68; 547 per Allsop J

[27] [2013] FCA 898 at [30] per Mortimer J. In Repatriation Commission v Stares (1996) 66 FCR 594; 41 ALD 212; 23 AAR 117 at 601; 217-218; 123-124 the Full Court of the Federal Court (Black CJ, Ryan and Einfeld JJ) put it this way: “… An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts.  Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.”

[28] [1999] FCA 1629; (1999) 57 ALD 1 at [18]; 6 per Merkel, Goldberg and Weinberg JJ and, in the context of SoPs, see Summers v Repatriation Commission [2015] FCAFC 36 at [98] per Kenny, Murphy and Beach JJ

[29] [2005] FCAFC 23; (2005) 218 ALR 251; 85 ALD 1; 40 AAR 500 at [96]; 269; 19; 519; Wilcox, French and Weinberg JJ cited in Ellis v Repatriation Commission [2014] FCAFC 847 at [39]; Gordon J

[30] [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144 at 97; 206; 159

[31] [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 18 AAR 1; 30 ALD 1 at 569-570; 215; 6; 6 per Mason CJ, Gaudron and McHugh JJ

[32] [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144 at 96; 206; 159

[33] [2002] FCA 412; (2002) 73 ALD 365; 34 AAR 562 at [38]; 373; 570 per Emmett J

[34] (1987) 76 ALR 131; 7 AAR 233 at 135; 236-237 per Beaumont J approved by Brennan J in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 16 AAR 1; 29 ALD 1 at 428; 51-52; 16-17; 18

[35] [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144 at 97; 206; 159

[36] [2001] FCA 1194; (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609 at [69]; 337; 386; 625 per Allsop J and see also [42]-[43]; 331-332; 380-38; 620 per Heerey J and [50]; 333; 382; 621 per Emmett J agreeing with both.

[37] [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144 at 95-96;204-205; 158 approving a passage from the judgment of Heerey J in Deledio v Repatriation Commission (1997) 25 AAR 396; 47 ALD 261 at 411-412; 275

[38] [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144 at 96; 205; 158

[39] [1998] FCA 391; (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144

[40] [1999] FCA 582; (1999) 29 AAR 235; 59 ALD 315 at [24]; 242 per Wilcox J

THE HYPOTHESIS

1. The answers to the antecedent questions have been agreed upon by the parties and I have set them out above.  That brings me to the question of whether Mr Ellis’s death was war-caused and the questions that must be asked and answered under ss 120(3) and 120A(3).  At the original hearing, Mrs Ellis relied on two hypotheses but, on remittal, she relied only on one. to connect her late husband’s death with his operational service.  That hypothesis is:

   (1)Mr Ellis injured his right knee in the course of his operational service.

   (2)Mr Ellis’s knee injury contributed to his becoming overweight within the definition of “being overweight” in the diabetes mellitus SoP through limiting his physical activity.

   (3)Mr Ellis’s being overweight within the meaning of the diabetes mellitus SoP for at least five years before the clinical onset of diabetes mellitus contributed to his developing that condition.

   (4)Mr Ellis’s suffering from diabetes mellitus for at least five years before the clinical onset of malignant neoplasm of the liver contributed to his developing that latter condition.

   (5)Malignant neoplasm of the liver caused Mr Ellis’s death.[41]

STATEMENTS OF PRINCIPLES

[41] Applicant’s submissions on remittal at [9]

Malignant neoplasm of the liver

1. The hypothesis relies on two SoPs.  One is SoP No. 21 of 2011 concerning malignant neoplasm of the liver.  It has been in effect at all relevant times and relates to a condition it describes as:

   “… a primary malignant neoplasm arising from hepatocytes.  This definition excludes soft tissue sarcoma, carcinoid tumour, malignant neoplasm of the intrahepatic bile duct, non-Hodgkin’s lymphoma and Hodgkin’s lymphoma.”[42]

   [42] SoP 21 of 2011 at [3(b)]

1. The RMA is of the view that there is sound medical-scientific evidence indicating that death from malignant neoplasm of the liver can be related to “relevant service”.  That expression includes operational service.[43]  Subject to cl 7, which has no relevance in this case, at least one of the factors listed in cl 6 must be related to relevant service rendered by the person.[44]  The factor relied upon by the hypothesis put forward by Mrs Ellis is cl 6(h):

   “The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting … death from malignant neoplasm of the liver with the circumstances of the person’s relevant service is:

   (a)-(g)  …

   (h)having type 2 diabetes mellitus for at least the five years before the clinical onset of malignant neoplasm of the liver; …

   (i)-(s)…”

   [43] SoP No. 21 of 2011 at cl 9

   [44] SoP No. 21 of 2011 at [5]

Diabetes mellitus

1. When the Commission made its decision on Mr Ellis’s claim on 21 February 2012 and the Veterans’ Review Board affirmed that decision, the relevant SoP concerning diabetes mellitus was No. 89 of 2011.  After the decision was reviewed by the earlier Tribunal but before the appeal was heard by Gordon J, that SoP was amended by SoP No. 88 of 2014.  As I am hearing this matter afresh on remittal from the Federal Court, the principles that were identified in the case of Gorton would mean that I have regard first to the SoP currently in effect.  Only if that SoP does not support the hypothesis do I turn to the current SoP.  As it transpires, there is no difference between the provisions of the two SoPs in so far as they relate to the hypothesis in this case.

1. There is no question that Mr Ellis suffered from diabetes mellitus as defined in cl 3 of SoP 89 of 2011.  Clause 4 states that the RMA is of the view that there is sound medical-scientific evidence indicating that death from that condition can be related to relevant service rendered by veterans.  The RMA then states at cl 5:

   “Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.”

1. Of the factors set out in cl 6, that in cl 6(b)(i) is the only relevant factor:

   “The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting … death from diabetes mellitus with the circumstances of a person’s relevant service is:

   (a)       …

   (b)       for type 2 diabetes mellitus only:

   (i)being overweight for a period of at least five years before the clinical onset of diabetes mellitus; …

   …”

   Clause 7 has no relevance to the factor in cl 6(b)(i).

1. SoP 89 of 2011 defines the expression “being overweight” in cl 9:

   “‘being overweight’ means an increase in body weight by way of fat accumulation which results in at least one of the following:

   (i)a Body Mass Index (BMI) of 25 or greater; or

   (ii)a waist circumference of greater than 80 centimetres in women or greater than 94 centimetres in men;

   The BMI = W/H² and where:

   W is the person’s weight in kilograms and

   H is the person’s height in metres”

MATERIAL

Medical material

1. The Medical History taken on 8 April 1942 from Mr Ellis at the time of his enlistment, recorded his height as 5 feet 8 inches and his weight as 140 lbs.  His occupation was noted as “Labourer”.[45]

   [45] T documents; T3 at 8

1. On 16 November 1948, Mr Ellis applied for his right knee condition to be accepted as being due to, or having been aggravated by, his war service.  The Medical Report written in response to his application diagnosed Mr Ellis as suffering from internal derangement of his right knee resulting from an occurrence during his war service.  Mr Ellis’s complaints were noted by the Medical Officer on 18 February 1949.  They included his suffering swelling in the knee when walking with the appearance of a lump on the outer edge of the joint.  He also reported a pinching sensation on the inside of the joint.  The Medical Officer noted that the knee had been operated on and that Mr Ellis had suffered from some wasting of his thigh muscles.  Mr Ellis suffered slight pain on hyperextensions but otherwise, the Medical Officer reported, “NAD” i.e. nothing abnormal detected.[46]  The Medical Officer also noted Mr Ellis’s height at the time as 6 feet and his weight as 11st 8½ lbs.[47]

   [46] Exhibit A3 at 2

   [47] Exhibit A3 at 1

1. Mr Ellis was admitted to the Repatriation General Hospital (RGH) at Heidelberg on 10 January 1949 with a history of his knee locking occasionally over the previous six months.  His weight at that time was 11st 11 lbs.  In addition to his knee’s locking, Mr Ellis had complained of a small loose body about the size of a thumb nail on the lateral side of the joint.  Mr Ellis was able to manipulate that.[48]  The diagnosis was that there was probably a loose body in his right knee as a result of a previous meniscectomy as well as some laxity in the ligaments.[49]  That diagnosis was made even though the X-rays noted that no loose bodies were to be seen.[50]  The previous operation had removed the whole medial meniscus.  On 19 March 1949, it was noted that Mr Ellis was still suffering from gross ligamentous laxity so that it was “… almost certain there was an associated lesion of the anterior cruciate ligament. …”.[51]  An operation was decided against.  Mr Ellis’s weight on discharge from the RGH on 14 April 1949 was 12 stone.

   [48] Exhibit A3 at 1 and see also at 6

   [49] Exhibit A3 at 3  A similar diagnosis was made on 29 January 1949 with a note that Mr Ellis be admitted for an operation: Exhibit A3 at 5.  The date of the earlier meniscectomy appears to have been some time in 1946: Exhibit A3 at 15.

   [50] Exbibit A3 at 3 and 4 and see also later X-ray taken on 28 March 1949 when the report stated “R Knee NAD”: Exhibit A3 at 8

   [51] RGH Records: Exhibit A3 at 9

1. The operation did not proceed until after 19 March 1949 when the Commission had accepted that internal derangement of Mr Ellis’s right knee be accepted as due to his war service. 

1. Mr Ellis returned to the RGH in 1953.  Dr Balcombe Quick assessed Mr Ellis’s disability at that stage as “say 40%” but he was strongly of the opinion that there was a body that had been mobile in the knee but was now incarcerated in the centre of the joint.[52]  At a consultation on 30 March 1953, Dr Bottomley reported that:

   “… Right knee, not too bad.  No swelling of joint.  Aches, dull, after walking any distance, and aches at night occasionally.  Leg gives way all of a sudden. … Weight constant. …

   Age: 28.    Height: 6.0.    Weight: 12.7.”[53]

Dr Bottomley noted that Mr Ellis was tall and had a good physique and that he walked with a slight limp.  With regard to his right knee, Dr Bottomley wrote: “… Movements free and painless.  No crepitus.  No swelling.  Some lateral mobility.”[54]

[52] Exhibit A3 at 10  An increase to 40% was subsequently approved and backdated to 20 September 1948: Exhibit A3 at 9

[53] Exhibit A3 at 10

[54] Exhibit A3 at 10

1. The Medical Officer’s notes dated 11 June 1953 refer to Mr Ellis’s injuring his right knee during service and his undergoing a medial meniscectomy.  Mr Ellis is recorded as saying that he had little trouble after the surgery until 1949 when he was admitted to the RGH complaining of weakness in the knee joint when doing heavy work.  In 1949, he could feel a small lump on the lateral side of his knee above the patella.  He could do so for approximately two months but then he could not.  In 1953, the Medical Officer wrote, Mr Ellis described his:

   “… present trouble as ‘giving’ or on closer questioning sliding of the joint surfaces.  …

   The above instability of joint occurs only on heavy effort, eg pushing car out of a bog, etc.”[55]

   [55] Exhibit A3 at 12

1. An X-ray taken on 16 June 1953 reported no changes from the previous X-rays on 29 March 1949 and the presence of no foreign bodies.[56]  An arthrogram was performed on 18 June 1953.  It revealed a large amount of scarring in the medial aspect of the capsule.[57]  On 25 June 1953, a specialist wrote that he considered Mr Ellis had a rupture of his anterior cruciate ligament and did not intend to explore his knee further.[58]  Mr Ellis was discharged from RGH on 26 June 1953 weighing 12 stone 7 lbs.  Mr Ellis’s disability was assessed by the Medical Officer as 20%[59] but his assessment for pension purposes remained at 40%.[60] Two years later, on 27 July 1955, a Medical Officer recommended that Mr Ellis be given a knee cage.[61] 

   [56] Exhibit A3 at 14

   [57] Exhibit A3 at 15

   [58] Exhibit A3 at 16

   [59] Exhibit A3 at 16

   [60] See above

   [61] Exhibit A3 at 19

1. At a medical examination on 8 October 1976, Mr Ellis was recorded as weighing 13 stone.  At that time, he had been away from work for 3½ months and complained that his right knee was getting progressively more painful and that he could hardly walk on it.[62]  The Medical Officer noted that in his report on 8 October 1976.  He also noted that Mr Ellis’s right knee would deteriorate further due to increasing osteoarthritis.  Mr Ellis would not be able to work in the future not only because of his knee problems but because of other illnesses such as gout, diabetes and paroxysmal atrial fibrillation.  His high blood pressure was also being followed up.[63]

   [62] Exhibit A3 at 20

   [63] Exhibit A3 at 23

1. On 26 October 1976, a Medical Officer noted that Mr Ellis’s right knee had been getting progressively worse and would deteriorate further due to increasing osteoarthritis.  The Medical Officer noted that Mr Ellis was unable to do any physical work.  Most of his inability was due to his knee problem but it was also due to his suffering from other conditions including gout and atrial fibrillation.[64] 

   [64] Exhibit A3 at 23

1. On 20 April 1977, Mr Ellis was reviewed by Dr Grice and Dr Howard, Medical Members of the War Pensions Assessment Appeal Tribunal.  They recorded his weight at 13st 7lbs and then wrote:

   “Has not been in employment for the past 10 months.  The main factor affecting his activity is his right knee.

   This has become much worse in past 3 years.  It is painful, unstable and swells a lot.  He wears a calper [sic], and with this he can walk up to about ½ mile but no more.

   O.E.Right knee:

   Quadriceps wasting, no restriction of movement and no crepitus on movement.  No excess fluid in joint.

   Increase in AP movement and light increase in later movement.

   Slight pain in patella movement.”[65]

   [65] Exhibit A3 at 24

1. Four years later on 28 March 1981, Mr Ellis was again examined by a Medical Officer.  His weight was recorded as 82kg and his height continued to be 6 feet.  The condition of his right knee was recorded as having been stable over the previous 12 months.[66]

   [66] Exhibit A3 at 25

1. Mr Richard McArthur, a surgeon, examined Mr Ellis at the request of the Department of Veterans’ Affairs (DVA).  On 26 July 1985, he wrote a report beginning with a summary of Mr Ellis’s knee condition.  He noted that Mr Ellis also had:

   “          A past history of mild diabetes controlled with diet, gout which was treated with Xyloprim and a cardiac arythmia requiring digoxen was recorded.”[67]

As to Mr Ellis’s knee condition, Mr McArthur reported that:

“          The disability in the right knee is due to osteoarthritis of the medial tibio-femoral compartment and to a lesser extent the patello-femoral joint.  This will be investigated with appropriate x-rays.

Mr Ellis would benefit from a high valgus tibial osteotomy so designed to transfer weight to the relatively normal lateral compartment.  This procedure provides good pain relief in the long term and should improve Mr Ellis’s quality of life. ”[68]

[67] Exhibit A3 at 27

[68] Exhibit A3 at 28 and see also further report dated 7 August 1985: Exhibit A3 at 30

1. Mr McArthur recommended that Mr Ellis undergo a high valgus tibial osteotomy[69]  and he performed that surgery on 24 September 1985.[70]  In a report dated 25 August 1987, Mr McArthur reported that the high tibial osteotomy performed two years before had been successful in relieving the medial compartment pain suffered by Mr Ellis.  He required an outer heel and sole wedge added to his bowling shoes in order to unload the medial compartment.[71]

   [69] Exhibit A3 at 28 and 30

   [70] Exhibit A3 at 32

   [71] Exhibit A3 at 35

1. On 17 October 1991, Mr Ellis was discharged from the Cardiology Unit of the RGH.  He had been admitted for a coronary angiogram as he had suffered three episodes in a three week period:

   “67 year old NIDDM 12 yrs diet controlled NIDDM 12 yrs diet controlled …”[72]

   [72] Exhibit A3 at 36

1. Mr Ellis reported loss of stability in his right knee.  It gives way after only very short distances, he told his doctor whom he first consulted on 21 September 1998.  His doctor noted that in his report of 8 September 2000.[73]

   [73] Exhibit A3 at 37

1. Mr Ellis’s general practitioner, Dr Prowse, reported on 13 September 2005 that the date of the clinical onset of his diabetes mellitus had been 1975.[74]

   [74] Exhibit A3 at 38

Family and friends

1. Mrs Eileen Callaghan is the late Mr Ellis’s sister.  She recalled her brother as a skinny child.  When he returned from the war, she wrote, her brother’s:

   “… leg was always swelling and painful.  He could not dance or do normal walking for long.  Because he had trouble with his leg, he became self-employed as a shoe repairer and rented a small shop where he mended shoes sitting on a stool.

   … [W]hen he came back from the war with his bad leg, he couldn’t exercise like he used to and put on weight which he kept on until he became sick before he passed away.  I would say he was solidly built but not obese.

   My brother didn’t drink before joining the Army as he was too young but I believe he started drinking during the war and continued after he came back from the war.  He never drank much when he was around me and I cannot recall having ever seen him drunk. …

   In the early 1970’s he came to live on our farm for six months and during that time his leg was always giving him pain, particularly while he was trying to relax.  In the last twenty years of his life he played lawn bowls when his health allowed.”[75]

   [75] Exhibit A4 

1. The late Mr Ellis’s brother, Mr Richard Ellis, was too young to recall his brother’s habits before he enlisted.  He was still young when his brother returned but, later on, he recalled, his brother suffered chronic knee problems and had a noticeable limp.  His brother suffered pain and discomfort from his knee injury, he noticed.  Between 1968 and 1976, Mr Richard Ellis would see his brother a couple of times each year.  They would meet to go fishing and, occasionally, duck shooting.  In his view, his brother was “pretty heavy … far too heavy …”.[76]

   [76] Transcript of previous hearing at 56

1. Mr Richard Ellis said that his brother had been a blacksmith before his enlistment but, on his return, worked in the hospitality industry.  His reasons for not resuming his work as a blacksmith were, Mr Richard Ellis said, his inability to cope physically with the crouching, lifting, bending, turning and other physical tasks that would have been required of him.  Mr Richard Ellis recalled his brother’s weight reaching 18 stone.  In the 1970s, his brother told him that he had been given medical advice to reduce his weight because of the diabetes and also because his weight was aggravating his knee problems.  Mr Richard Ellis wrote in a statement made on 26 March 2013:

   “Les was conscientious about weight reduction once he received the medical advice.  Whereas he previously enjoyed food such as cake and desert and he enjoyed a beer, he was very careful about his diet after the diagnosis of diabetes and he lost weight rapidly.  His weight loss was so dramatic that I became concerned and told him that he had become too skinny.

   It is my belief that the knee problems contributed to Les’s weight gain in the first place because they restricted his ability to exercise.  His problems became a cycle because the increase in weight in turn apparently aggravated the knee problems.  He only broke this cycle after the diabetes was diagnosed.

   Les and I lived a fair distance apart and therefore I tended to only see him on a couple of occasions per year.  Often we would spend time together fishing or duck shooting.  We often stayed with each other when we caught up.  Prior to the diagnosis of the diabetes Les would typically consume approximately 6 cans of beer during the late afternoon (from about 4.00pm to about 6.30pm).  After the diagnosis of the diabetes he continued to consume a similar quantity but drank diet ale rather than regular beer.”[77]

   [77] Exhibit A2

1. Mrs Nora Ellis was the late Mr Ellis’s second wife.  They first met in the 1960s when both worked in hospitality in Bendigo.  At that time, she regarded him as:

   “… a big man.  He was really big.

   … I don’t know how heavy he was but he was very big and fat, overweight or something.  No, he was big.”[78]

Mrs Ellis said that Mr Ellis continued to be the same size throughout the time that she, her first husband and he owned a hotel at Echuca.  Mr Ellis continued to be the same size up until the time that they sold the hotel in or about 1973.  She identified him in a photograph that appeared in the Sunday Observer dated 3 January 1971.  He was standing behind the bar.  Mrs Ellis said later in her evidence that she did not know what Mr Ellis drank at the time when he was in the bar as she was cleaning the hotel and doing the books.[79]

[78] Transcript of previous hearing at 27

[79] Transcript of previous hearing at 32

1. As to Mr Ellis’s knee and his physical activity at the time, Mrs Ellis said:

   “… Yes, he – always had a limp in the – in the hotel and the – I never saw him go for a walk or anything cause he – he was limping.  He used to limp all the time in the hotel and that’s about all I know about him.”[80]

   [80] Transcript of previous hearing at 29

1. Mrs Ellis said that she never saw Mr Ellis lift anything while they owned the hotel.  Her then husband did the lifting.  Mr Ellis worked behind the bar serving beer.  She did not know whether he sat on a stool while he was doing that.  Mrs Ellis had no memory of his playing sport in those days.  The following exchange occurred between Mrs Ellis and her barrister, Ms Spencer:

   “--- do you think there’s any relationship between that – his weight and his knee? --- Well, I never – never saw him ever go for a walk or do anything.

   So is that a yes?  Do you think they’re related? --- Well, he – yes.  Yes, I’d say he is.  We didn’t do any exercise that I ever – I never saw him even go for a walk.

   Do you know if he used a - any sort of assistance for his knee back in the pub time? --- Well, I don’t know in the pub but I know he did when I married him.

   Yes? --- He had a brace on it and he used it.

   A brace for his knee? --- Yes, that’s when I married him.  I don’t know what he had in the pub.”[81]

   [81] Transcript of previous hearing at 30

1. Some three years after she separated from her first husband and had moved to Adelaide, Mr Ellis visited her.  That was in approximately 1976.  She said that Mr Ellis “… looked exactly the same as what he did in the hotel.  He hadn’t lost any weight.”[82]  By 1979 when they married, “He’d thinned down.  He’d thinned down quite a bit.”[83]  Mrs Ellis only found out about Mr Ellis’s diabetes after they married.  Until near the end of his life, he would drink two stubbies of beer each day but, if it were a hot day, he would have three.[84]

   [82] Transcript of previous hearing at 31

   [83] Transcript of previous hearing at 31

   [84] Transcript of previous hearing at 33-34

1. Mr Ellis played bowls for all but the last two years of his marriage to Mrs Ellis.  He would take his walking stick but put it down to bowl the ball.  Then, he would limp down to the other end but he would always use his walking stick.

1. Mr Peter Wells is Mrs Ellis’s son by her first marriage.  He said that he first met Mr Ellis when he was approximately six or seven years of age.  That was in Bendigo but then he and his mother and father lived with Mr Ellis in the hotel in Echuca.  His parents and Mr Ellis ran the hotel from 1964 until 1973.  Mr Wells thought Mr Ellis was “… huge and very imposing.”[85]  Mr Wells identified Mr Ellis in the photograph from the Sunday Observer and said that was his normal size for the whole time.  The picture was how he remembered Mr Ellis; just standing behind the bar.  He was always very slow and had a limp.  His walking pace was significantly slower than the average person’s, Mr Wells thought.  He described Mr Ellis as “very stagnant”[86] and “sedentary”.[87]  He recalled Mr Ellis’s sitting at the bar on a stool.  Often the bar was not busy and the drinkers would gather around him while he drank with them.[88]  His father did the same.[89]  Mr Wells also recalled Mr Ellis’s pushing the trolley that was used to shift kegs but he did not have to lift the kegs.[90]  There were no cartons of beer to lift as they did not run a bottle shop, Mr Wells said, but he had no recollection of whether bottles of beer were sold over the bar at the hotel.

   [85] Transcript of previous hearing at 8

   [86] Transcript of previous hearing at 9

   [87] Transcript of previous hearing at 11

   [88] Transcript of previous hearing at 17

   [89] Transcript of previous hearing at 19

   [90] Transcript of previous hearing at 18

1. Mr Wells said that he next saw Mr Ellis when Mr Ellis married his mother in 1979.  At that time, Mr Ellis had, in Mr Wells’ view, lost a lot of weight and he was then somewhere between normal weight and overweight.  After 1979, Mr Wells said that Mr Ellis put on weight gradually and he remained overweight until near the time of his death.  Mr Wells recalled Mr Ellis’s playing bowls in the early years of his marriage but he would have only done so for a year or two.  After that time, bending became too difficult for him.[91]

   [91] Transcript of previous hearing at 15-16

1. Mr Wells did not recall Mr Ellis’s ever playing sport while they all lived at Echuca.  He liked fishing and duck shooting, though, Mr Wells recalled.[92]

   [92] Transcript of previous hearing at 20

1. Dr Prowse said in giving evidence that he had started treating Mr Ellis in 1991 but that he had relied on his predecessor’s notes.  Those notes had recorded that his predecessor had diagnosed Mr Ellis as suffering from diabetes mellitus in 1975.  When shown the photograph from the Sunday Observer, Dr Prowse said that he could see that:

   “… there’s quite a significant abdominal girth there on that – on Mr Ellis and I would say that his BMI would be over 25.  Yes, I would think you could say that with a reasonable degree of certainty.”[93]

   [93] Transcript of previous hearing at 83

CONSIDERATION

1. It is not unexpected that there are gaps in the late Mr Ellis’s history as that history is recalled by those who have survived him.  His sister and his brother knew him for much of his life but, as is often the case with siblings whose lives take them in different directions, their contact with him was occasional.  Mrs Nora Ellis was with him from 1979 when they married and she knew his history from that point.  She also knew it from 1976 when the late Mr Ellis followed her to Adelaide to renew his acquaintanceship with her and, as things turned out, to court her.  There was a gap between 1973 and 1976 when Mrs Ellis’s first marriage came to an end.  Before 1973, Mrs Ellis had known Mr Ellis for many years but that was, first, as fellow workers and, later as business partners.  Mrs Ellis’s son, Mr Wells, had quite a bit of contact with Mr Ellis between 1964 when his parents were Mr Ellis’s business partners in the hotel.  His knowledge was shaped from the view point of a young child.  His later memory of him is at his mother’s wedding in 1979 when she married Mr Ellis. 

1. The picture that comes from their accumulated memories is something like a mosaic floor that has been excavated.  Part of the mosaic pattern has been lost in sections but is almost whole in others.  In yet others, the mosaics have lifted and either covered other parts or disappeared so that the picture is somewhat obscured and difficult to read.  Without the person who is the subject of the picture, it will always be difficult to read.  So, for example, why does Mrs Callaghan recall her brother as a shoe repairer and the Death Certificate records his occupation at that of a a bootmaker.[94]  At the same time, his brother, Mr Richard Ellis, recalls him as a blacksmith.  It would seem that both are true but for different periods of time.  A Medical Officer recorded Mr Ellis’s having retrained as a boot repairer and following that trade in 1953.[95]  Whatever the case, the truth or otherwise of Mr Ellis’s past work history is not a matter on which I must make a finding just as I am not required to make a finding at this stage on the various elements that make up the hypothesis in this matter.  I have only to find whether there is material pointing to those elements.

   [94] T documents at 31

   [95] Exhibit A3 at 11

1. Beginning with the first element, there is material pointing to Mr Ellis’s not being able to move or exercise when he came home from the war as he had before he injured his knee.  In the main, that material comes from the evidence of Mrs Callaghan who is the only person who has a clear memory of her brother both before and after the war.  Her memory is that he put on weight as a result of his not being able to exercise as he had before the war and she ascribed his lack of exercise to his having injured his knee.  That continued to be the case in the early 1970s when he lived with her and her family for a few months.  Mrs Ellis’s evidence pointed to her husband’s lack of activity while she knew him and to his walking with a limp.  That points to his continuing a pattern of behaviour through the years.

1. The medical material following Mr Ellis’s return from war service also points to his continuing to suffer from some laxity in his right knee.  The medical records note that from early in 1949.  There is discussion of whether a body had first been mobile in the joint and then become incarcerated at its centre.  That view did not gain support from subsequent medical practitioners whose exploratory athrogram in June 1953 revealed a large amount of scarring but no foreign body.  The laxity continued in 1955 but it only troubled him a few times a year at that stage a note dated 27 July 1955 would suggest.  In 1953, for example, the laxity troubled him only when he undertook heavy work such as pushing a car out of a bog.  By 1977, Mr Ellis was complaining to the War Pensions Assessment Appeal Tribunal that his knee had become much worse in the previous three years.  His knee was painful and unstable as well as swelling a lot.  He wore his calliper but, even then, could walk no more than half a mile.

1. There is a significant gap in the medical evidence between 1955 and 1977.  There is nothing that records a worsening of Mr Ellis’s knee condition but I think it can be said that the material points to a deterioration in his condition over the intervening years.  It points to the worsening condition being the same condition as that which he had suffered during his service or related to it in the sense that it points to his suffering from laxity in the joint and arthritis, both of which related to his accepted knee condition.

1. That brings me to whether the material points to Mr Ellis’s gaining weight due to his knee condition.  Mrs Callaghan described her brother as “solidly built but not obese.”  The evidence of Mrs Ellis is that her husband was “… a big man.  He was really big.”  Mr Wells recalled him as “… a huge and very imposing man.”  That does not point to Mr Ellis’s being overweight in the five years before the diagnosis of his suffering from diabetes mellitus in 1975.  Dr Prowse had found reference to that diagnosis in the notes of his predecessor.  He is also the source of material pointing to Mr Ellis’s being overweight in the sense in which that term is defined in the SoP relating to diabetes mellitus i.e. with a BMI of over 25.  Dr Prowse expressed that opinion when shown the photograph taken of Mr Ellis in 1971.

1. The medical reports do not cover the five year period before 1975.  In the following table, I have shown the height and weight as originally recorded in italics and, where necessary, have converted imperial measurements to metric.

Date	Height (Imp)	Height (Met)	Weight (Imp)	Weight (Met)	BMI
8 April 1942	5 ft 8 in	1.524 metres	140 lbs	63.5 kg	27.3
18 Feb 1949	6 ft	1.829 metres	11 stone 8.5 lbs	73.703  kg	22.03
14 April 1949	6 ft	1.829 metres	12 stone	76.203 kg	22.78
30 March 1953	6 ft	1.829 metres	12 stone 7 lbs	79.375 kg	23.73
8 October 1976	6 ft	1.829 metres	13 stone	82.553 k8	24.68
20 April 1977	6 ft	1.829 metres	13 st 7 lb	85.076 kg	25.43
28 March 1981	6 ft	1.829 metres	82.0 kg	24.51

The BMI for 1942, which was 27.3, appears out of kilter with the other figures but it may not be.  At the time Mr Ellis’s height was recorded as 5ft 8ins in 1942, he had just turned 18 years of age.  His growth might have continued after that date and that it did would seem to be supported by the record of his increased height in all subsequent years.

1. Even though they do not cover the relevant five year period, they do cover years both before and after it.  Ignoring for the moment the BMI for 1942, they point to Mr Ellis’s gradually increasing his weight and so his BMI in the years up to 1953.  The figures show that his BMI was just under 25 in 1976 but just over 25 in 1977.  That was in the two year period after his receiving a diagnosis of diabetes mellitus.  His brother said that his doctor had told him to reduce his weight when his diabetes mellitus was diagnosed.  The reduction in his BMI from 25.43 to 24.51 would be consistent with that advice even though it was some six years after the diagnosis.  I have no records of Mr Ellis’s weight in the period between 1953 and 1976 but the records that I do have are consistent with an increasing BMI and a reduction from a figure above 25 when he was given the diagnosis.  It is true that his BMI in 1976 was just under 25 but it then increased to over 25 before plateauing to 24.5 in 1981.  Therefore, I have concluded that there is material pointing to Mr Ellis’s having a BMI over 25 in the five years before the onset of his Type 2 diabetes. 

1. That means that the hypothesis put forward on behalf of Mrs Ellis is consistent with SoP No. 89 of 2011.  Furthermore, there is nothing that is obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous about the hypothesis that is put forward on behalf of Mrs Ellis linking her late husband’s war-caused knee injury with his diabetes. 

1. As cl 5 of SoP No. 89 of 2011 states, Mr Ellis’s being overweight for a period of at least five years before the clinical onset of diabetes mellitus must be related to the service he rendered.  I have already concluded, I have material pointing to his war-caused knee condition worsening over the years.  I have also made reference to the material pointing to Mr Ellis’s having decreased mobility and ability to engage in the activities he pursued before his war service.  That is found in the evidence of his sister.  The other material relating to his physical activities does not relate to his activities before and after his service because it comes from his brother and his widow, who do not recall him before his service.  His stepson is the same.  Their evidence is, however, consistent with that of Mrs Callaghan when regard is had to the level of physical activity in which he engaged in later years.  It is also consistent with the medical reports and particularly those from 1949 to 1955 when the increased difficulties he experienced from his knee led to his being prescribed a calliper.  A low level of physical activity continued through the 1960s and 1970s on the evidence of Mrs Ellis and her son, Mr Wells.  There is, therefore, material pointing to his decreased levels of activity in the five year period before the diagnosis of his Type 2 diabetes in 1976 being attributable to his war-caused knee injury and to that knee injury’s worsening over time.

1. I have already concluded that there is material pointing to his having suffered from diabetes mellitus for the five year period before the onset of his hepatocellular carcinoma.  That means that the hypothesis is consistent with the SoP relating to malignant neoplasm of the liver. 

1. That brings me to the final issue.  That is whether I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making the determination that Mr Ellis’s death by reason of hepatocellular carcinoma is war-caused.  I agree with Ms Dowsett’s submission that she made on behalf of the Commission to the effect that there are a number of explanations that would explain Mr Ellis’s weight gain over the years.  His injured knee is only one of them.  To say that, however, is very different from my finding that I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making the determination. 

1. While it is true to say that Mr Ellis’s BMI was under 25 in the year after he received the diagnosis of diabetes mellitus, I do not think that this is sufficient to be satisfied beyond reasonable doubt that the hypothesis is not supported.  The evidence other than the medical evidence is consistent with Mr Ellis’s being a large man and being consistently so until 1979 when he married Mrs Ellis.  The fluctuation in his weight between 1976 and 1977 does not persuade me beyond reasonable doubt that the upward trend in his weight from 1949 did not continue through to 1975.  The fluctuations in weight in 1976 and 1977 are in fact consistent with a person who is trying to lose weight. 

1. As for his physical activity, it is true that he referred in 1953 to his knee causing him trouble when he did heavy work such as pushing a car out of a bog, but his being able to push a car in 1953 is not inconsistent either with his experiencing increasing difficulties over the years from his knee or with evidence that was given regarding restrictions in his physical activities such as walking.  The evidence regarding his fishing and duck shooting is in the same position.  Mr Richard Ellis said that he did that with him a couple of times a year and he would pitch the tent for his brother and drive him from point to point.  Very little walking was involved.  The evidence of Mr Ellis’s physical activity does not persuade me beyond reasonable doubt that he was physically active.

1. It follows that, after considering the whole of the material, I have concluded that it raises a hypothesis that is both reasonable and consistent with the SoPs determined by the RMA connecting the circumstances of Mr Ellis’s service with the onset of his Type 2 diabetes.  It also raises a hypothesis that was reasonable and consistent with SoP No. 21 of 2011 relating to malignant neoplasm of the liver.  The onset of his diabetes was 1975, which was more than five years before he was diagnosed as suffering from malignant neoplasm of his liver.  That diagnosis was made a month before he died on 3 January 2012.[96]  Putting that another way and adopting the words of s 120(3) of the VE Act, I am not satisfied that the material does not raise a reasonable hypothesis connecting Mr Ellis’s death with the circumstances of his service.

   [96] T documents at 31

DECISION

1. For the reasons I have given, I am satisfied that Mr Ellis’s death was war-caused within the meaning of the VE Act.  Therefore, I set aside the decision of the respondent dated 21 February 2012 and affirmed by the VRB on 26 September 2012 and substitute a decision that the applicant’s death from hepatocellular carcinoma was war-caused within the meaning of the VE Act.

I certify that the sixty four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie

Signed:    ………[sgd]...........................................

Associate

Date of Hearing  22 January 2015

Date of Decision  19 June 2015

Counsel for the Applicant  Ms F Spencer

Solicitor for the Applicant  Mr M Jorgensen

Williams Winter

Counsel for the Respondent                 Ms C Dowsett

Solicitor for the Respondent                 Ms C Canning

Australian Government Solicitor