Reardon and Repatriation Commission
[2008] AATA 46
•16 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 46
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/1199
VETERANS’ APPEALS DIVISION ) Re MAISIE REARDON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date16 January 2008
PlaceMelbourne
Decision The decision under review is affirmed.
(Sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – widow's application – service in New Guinea – cigarette smoking – death certificate alleged to have omitted some kinds or causes of death – examination of competing medical evidence – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) s 120 and s 120A
Benjamin v Repatriation Commission [2001] FCA 1879
Bushell v Repatriation Commission (1992) 109 ALR 30
Byrne v Repatriation Commission [2007] FCAFC 126
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
REASONS FOR DECISION
16 January 2008 Mr John Handley, Senior Member 1. Mrs Reardon claims a pension as the widow of the late Geoffrey Edwin Reardon. She contends that his death was war-caused. The Veterans’ Review Board (VRB) and the respondent did not share that view and declined her claim. These proceedings are a review of the decision to reject her entitlement to pension under the Veterans’ Entitlements Act 1986 (the Act).
2. Mr Reardon died on 7 February 2003 aged 87 years. He served overseas as a member of the Australian Army between 1942 and 1946 and he is therefore regarded as having been engaged in operational service. The death certificate recorded the cause of death as liver metastases – months; carcinoma of prostate – 13 years. A significant issue in these proceedings was whether the death certificate accurately recorded the cause of death. It followed that an attempt was made to establish other medical conditions, which if successful, would attract a Statement of Principle that would support a hypothesis linking service with death.
3. During the hearing, it emerged that some of the medical witnesses had the opinion that other conditions suffered by the deceased should have been recorded on the death certificate, yet it was their opinion that those conditions did not cause death. Professor Cade explained it was appropriate that major illnesses are so recorded for epidemiological purposes but it does not imply causation or a contribution to the death (Trans. day 3, pp10-11).
4. Since qualification for pension was changed by the introduction of Statement of Principles and the consequent legislative amendments, a number of decisions of the Federal Court considerably influence and dictate the process of decision‑making upon review.
5. Section 120 of the Act is no less relevant but it is affected – in the case of a person who was engaged in operational service – by the provisions of s 120A of the Act. In Repatriation Commission v Hancock [2003] FCA 711 Selway J decided that whilst the identification of injury or disease in most cases might be obvious, there will be cases where there were multiple injuries and in order to determine whether a Statement of Principle applies it is necessary to identify the kind of death. Section 120A (3) has determined that a hypothesis will only be reasonable if a Statement of Principle has been determined which upholds the hypothesis.
6. Prior to the commencement of the hearing of this review it was contended on behalf of Mrs Reardon that a reasonable hypothesis existed connecting her husband’s death with a cerebro-vascular accident which was said to be connected to a war‑caused smoking habit, thereby attracting a factor within Instrument No 52 of 1999. It was submitted that that hypothesis was supported by Dr Collins. It was not. In evidence, Dr Collins said that he could find no reference in any of the medical records of the deceased being treated or examined with respect to cerebro‑vascular disease, that he discounted it as a real possibility in relation to his cause of death and the deceased’s alleged changes in mental state and memory, whilst possibly an indicator of cerebro‑vascular disease, may have been indicative of other causes. In an amended Statement of Facts and Contentions lodged after the first day of hearing, it was acknowledged by the applicant’s representative that it had been the evidence of Dr Collins that it was possible that the deceased veteran had suffered a stroke but it was unlikely.
7. The amended Statement of Facts and Contentions also recited additional causes of death, each being alleged to have a genesis in cigarette smoking (which was also pleaded as war‑caused). The causes were:
(i) carcinoma of the bladder metastising into the liver;
(ii) ischaemic heart disease; and
(iii) atrial fibrillation.
8. Dr Collins, a forensic pathologist, gave evidence on the first day of hearing and it was understood that he would be called on the second day of hearing. The applicant’s solicitor then advised that it was not proposed to call him. No other evidence was led by the applicant. The respondent’s medical evidence was given by Professors Fox (an Oncologist), Harper (a Cardiologist) and Cade (The Director of Intensive Care at Royal Melbourne Hospital). Unlike Dr Collins, the respondent's doctors have extensive specialist clinical experience. But for the applicant widow’s evidence, which will be summarised briefly immediately following this paragraph, the remainder of the evidence given by the medical witnesses will be summarised under the heading of each of the medical issues advanced by the applicant during and subsequent to the first day of hearing.
evidence of mrs reardon
9. Mrs Reardon said she married her husband in 1957 having met him a few years previously. She did not know him before he was enlisted and did not know whether he then smoked cigarettes. She said she had seen photographs of her husband smoking in New Guinea where he served. She recalled that he was a heavy smoker but could not estimate quantities. Despite some references in clinical notes to her husband having ceased smoking in 1991 or 1996, Mrs Reardon was adamant that he continued to smoke up until about two years before he died in 2003. Mrs Reardon knew little about her husband’s service in New Guinea because he would not speak to her about it. She recalled that he was upset when his close friend, Max Ward, was killed in service. She said her husband had enlisted with Mr Ward and he had assumed that he would serve with him in New Guinea. She said that her husband would frequently be seen at home with his eyes closed and apparently in deep thought. He would not discuss issues with her but she said that life was never easy for him. She said her husband had endured the effects of polio from an early age.
10. Mrs Reardon said that she could not recall her husband ever complaining of chest pain but said that he was a person who would not complain. She said that the cause of her husband’s death was not ever explained to her however she was aware that he had suffered from prostate cancer for many years and despite it being first recorded in the clinical notes in 1991 she said that her husband had suffered it for many years previously. Prior to his death, Mrs Reardon recalled that her husband had deteriorated, had lost his appetite and had become confused. She did not recall any changes in his speech.
ischaemic heart disease/atrial fibrillation
11. Dr Collins noted that the deceased had been treated for cardiac failure and atrial fibrillation, the latter of which he said was a reflection of ischaemic heart disease. He also noted that Dr Richmond had reported that the deceased had gross cardiomegaly. He noted that there were pleural effusions in the right and left chest cavities which he thought – in the absence of any evidence of malignancy in those regions – would be consistent with congestive cardiac failure. It was his opinion that the death certificate was incomplete and should have recorded ischaemic heart disease as a cause of death.
12. In cross-examination it was his opinion that whilst the prostate malignancy played a significant role in the demise of the deceased, there was documented evidence of ischaemic heart disease which may well have played a contributory and hastening role to his demise (Trans. p28). He agreed with an opinion expressed by Professor Cade (in a report lodged prior to the commencement of the hearing) that there was no documentary evidence from the clinical files pointing to ischaemic heart disease contributing to the demise. He disagreed with an opinion expressed by Professor Cade that the contribution to death by ischaemic heart disease should be regarded as being speculative.
13. In re‑examination, Dr Collins said that whilst the deceased had previously been diagnosed with ischaemic heart disease, it might not have been regarded as being severe immediately prior to death because the deceased would have responded to prior treatment and medication. He thought ischaemic heart disease was a possible contributing factor to death and whilst acknowledging that there was an absence of clinical information to either disprove or prove it, he thought a reasonable hypothesis existed connecting service with death by ischaemic heart disease.
14. Professor Fox acknowledged that the deceased did suffer from other medical conditions which were present during his terminal admission one of which was controlled cardiac failure. He acknowledged the presence of ischaemic heart disease and the pre‑existence of atrial fibrillation but said the cardiac failure was controlled because the deceased had responded well to prescribed medication. He was shown an ECG dated 2 February 2003 (five days prior to death) which he said demonstrated atrial fibrillation and changes consistent with ischemia. He said that an ECG does not record heart failure.
15. It was the opinion of Professor Harper that the clinical notes and ECG reports demonstrated that the deceased suffered from atrial fibrillation and whilst an ECG would not permit a diagnosis of ischaemic heart disease he was prepared to make that finding based on other clinical material. It was his opinion that atrial fibrillation and ischaemic heart disease was first diagnosed in January 2002. He thought on the clinical material the deceased had responded well to medication, there was no evidence of heart failure during the terminal admission and atrial fibrillation and ischaemic heart disease or heart failure did not contribute to death but rather the demise of the deceased was because of wide spread cancer (Trans. day 2 p19).
16. In cross-examination, Professor Harper agreed that the deceased did suffer from cardiac failure which responded well to treatment after first being diagnosed in January 2002 and he could find no evidence in the clinical notes of any recurrence. He acknowledged that Dr Collins had reported that the deceased was in congestive cardiac failure at the time of terminal admission however Professor Harper said that he was unable to locate any reference to that condition in the clinical notes. He acknowledged that once cardiac failure is diagnosed, medication is prescribed to keep you out of cardiac failure. So cardiac failure doesn’t stay with you for the rest of your life but the potential for cardiac failure stays with you and that is why you require continuing treatment (Trans. day 2 p22). Professor Harper said that if cardiac failure was present immediately prior to death, it would have been documented in the clinical files that the deceased was suffering from shortness of breath, pulmonary congestion, fluid retention and elevated venous pressure. None of these symptoms were documented. He said the deceased died from overwhelming cancer and all the clinical material pointed to death being typical of such a condition. He acknowledged that he could not, – nor anyone else –say with any precision what was the cause of death but thought that it was probably by exhaustion. He said death would have occurred irrespective of whether the deceased had cardiac disease or not.
17. Professor Harper said that had he been completing the death certificate he would have recorded the primary cause as metastatic carcinoma but would have listed associated medical conditions as atrial fibrillation and probably ischaemic heart disease, not directly contributing to his death.
18. Professor Cade agreed with the opinions expressed previously by Professor Harper – both in his report and in his evidence – that there was no clinical evidence of heart failure contributing to the death of Mr Reardon. Professor Cade agreed that ischaemic heart disease should have been recorded on the death certificate. It was his opinion that the deceased did suffer from ischaemic heart disease but he was unable to find any clinical evidence that it contributed to the death nor was he able to find any mechanism by which it could have contributed to the death. He agreed that the late Mr Reardon did suffer from cardiac failure but it had been treated. Consistent with the interpretation also made by Professor Fox of the clinical records, it was the opinion of Professor Cade that cardiac failure is capable of treatment and was being successfully treated. He said that the structural problems within the heart are not reversible but the manifestations of cardiac failure are treatable and can become quiescent.
19. Professor Cade agreed that the cardiac state of the deceased was not monitored in his last few days because he had been admitted in a frail and seriously ill state, he was confused and dehydrated. He said it would have been inappropriate to investigate any other causes, given the totality of the clinical information available to the doctors caring for the deceased and by reason of his illness then being terminal. He agreed that it was theoretically possible that ischaemic heart disease did contribute to death but in the circumstances of this case, regarded that possibility as being speculative.
carcinoma of the bladder
20. Dr Collins referred to his report of 11 January 2006 where he raised the possibility of a primary bladder tumour. He acknowledged that the clinical material did not show any malignancy but said it could not be excluded. He noted that a report following cystoscopy in January 2003 identified polypoid tissue at the base of the bladder neck which had been assumed (by Dr Moss) to be a spread from the prostate however that was a clinical judgment of Dr Moss and not supported by histological diagnosis.
21. Professor Fox said in evidence that he agreed with the opinion of Dr Moss that the polypoid tumour at the base of the bladder neck was consistent with prostate cancer growing into the bladder. Accordingly he was of the opinion that the deceased did not suffer from a primary malignancy of the bladder. He agreed with a report completed at the Ballarat Hospital following the death of Mr Reardon that the diagnosis of carcinoma of the prostate accurately recorded local recurrence with bladder involvement supported by a documented history of polypoid tumour about the bladder neck consistent with locally invasive prostate cancer (Ex 2 p4). Professor Fox explained that the prostate tumour had grown upwards into the deceased’s bladder. He said that a prostate tumour growing upwards was by far and above one of the more common modes of death with prostate cancer (Trans. day 2 p6). He said the tumour in the bladder was not a primary and not necessarily a secondary tumour but rather was a direct extension from the prostate just growing straight up. He confirmed an opinion expressed in his report (lodged prior to the commencement of the proceedings) that a primary neoplasm of the bladder was not quite logical.
22. Professor Fox agreed with an opinion previously expressed by Dr Collins that multiple primary malignant lesions of different cell origin is well recognised in medical practice but said that phenomena did not exist in the present case. He said such an event would be coincidental but in the present case there was no evidence of any other primary malignancy.
23. In cross‑examination Professor Fox agreed that there could be a rise in the prostatic specific antigen (PSA) by metastatic disease of the bladder if it invaded the prostate but then only by a low level, 15, 20 but not to the levels that were demonstrated with respect to the deceased’s prostate cancer (PSA of 489). He agreed that there was no biopsy undertaken of the deceased’s bladder because of the risk of bleeding and because it would have been totally irrelevant to the treatment of his (prostate) disease (Trans. day 2 p15).
carcinoma of the liver
24. Dr Collins noted that ultrasounds of the deceased’s liver on 10 and 23 January 2003 were inconclusive of the presence of liver metastases and may have demonstrated the presence of fatty changes. The possibility of hepatic metastases was noted at the second ultrasound but without opinion or identification of the primary site. He agreed that it was tempting and not unreasonable to conclude that liver metastases were secondary to the prostate cancer but there was no histological diagnosis for those lesions and it was uncommon for prostatic carcinoma to metastasise in the liver without bony metastases.
25. In cross‑examination Dr Collins agreed that there was no investigation to determine whether there was any bony metastases, the elevated PSA was a good indicator of the metastatic spread of the prostate cancer and by the application of Occam’s Razor it was not unreasonable for a clinical diagnosis of metastatic prostative disease but I’m not saying there is any certainty that that’s what was in the liver (Trans. day 1 p28). He did agree that whatever the malignancy was it played a significant role in the death of Mr Reardon.
26. Professor Fox disputed a hypothesis raised by the applicant after the first day of hearing that the metastases of the liver were more likely to be secondary to cancer of the bladder than cancer of the prostate. He said that prostate cancer classically goes to the liver as well as bone, the deceased had an extraordinarily high PSA and whilst bladder cancer can spread to the liver it just doesn’t fit in with the course of the whole disease.
27. Professor Fox was taken to a report completed by Dr Moss on 7 February 2003 (being the date of the deceased’s death) which was written to a doctor in the palliative care unit at the Ballarat Hospital. The report enclosed copies of earlier letters to the deceased’s general practitioner. Dr Moss concluded I think it is highly likely that any metastases were unrelated to his prostate. Professor Fox said that that comment doesn’t make sense. He suspected that there was a typing error. He agreed that it was more common for prostatic carcinoma to metastasise to the liver with bone metastases yet he noted that a bone scan in 1992 was clear and he was not aware of any subsequent bone scan. He disagreed with the proposition put to him in cross‑examination that carcinoma of the bladder would be more likely to spread to the liver.
28. In re‑examination, Professor Fox said that it was irrelevant that there was apparently no investigation for bone metastases because the deceased was then suffering from the effects of prostate cancer, he was not complaining of pain, he was close to death and in those circumstances bone scanning would have been irrelevant. In evidence and in his report, he was of the opinion that the liver cancer was secondary to the prostate cancer.
carcinoma of the prostate
29. There was no dispute amongst any of the medical witnesses that the deceased did suffer from prostate cancer.
30. Dr Collins said that the clinical notes indicated that the deceased’s doctors were of the opinion that there was a metastatic spread from the prostate cancer but in his opinion there was no evidence of histological or definitive diagnosis. He thought the opinions held by the deceased’s doctors of a metastatic spread of prostate cancer was reasonably made because it was a known malignancy and there was a markedly elevated PSA which he said was a good indicator of metastatic spread of the prostate.
31. Professor Fox said that the deceased suffered from a malignant neoplasm of the prostate which was first diagnosed in 1991, the aetiology of prostate cancer is not known but is increasingly common with age. It was his opinion that the deceased died from prostate cancer. Based on the clinical notes, he said the deceased was admitted to Ballarat Hospital in the days prior to his death because of the prostate cancer, consistent with the opinion (expressed in the medical summary at page 4 of Exhibit 2) that the deceased had locally invasive prostate cancer.
32. Professor Fox said it was clear cut that the deceased died from prostate cancer. He said that his PSA was elevated, he had grossly abnormal biochemical liver function tests and his liver was enlarged which was consistent with liver metastases – both clinically and on ultrasound. Additionally, the deceased was admitted in a deteriorating condition, there was blood in his urine and he suffered weakness and confusion which he said was usual for persons who are dying from an advanced malignancy.
33. Professor Harper said that the terminal event was typical of someone with overwhelming cancer.
34. Professor Cade said that there was no doubt that the deceased did suffer from advanced carcinoma of the prostate which was first documented 13 years before his demise. He noted from the clinical file that the prostate carcinoma had progressed to require hormonal therapy, it was refractory and an enormous PSA level was found during routine pathology. He also noted that there was extensive liver metastases. He agreed with an opinion expressed by Professor Fox that the tumour thought to be existing in the deceased’s bladder did not spread from the prostate but rather, it was an extension of the prostate tumour. Professor Cade said that it would have been inappropriate to conduct a biopsy of the deceased’s bladder because of his terminal state on admission. In those circumstances any biopsy would have been invasive, intrusive and would not have been useful therapy. In the absence of any clinical data identifying another primary tumour, it was his opinion that the prostate cancer metastasised to the liver.
conclusions and reasons for decision
35. In reaching the conclusions which follow, regard has been given to the extensive medical and clinical data lodged during the proceedings, the evidence heard and written submissions of the representatives of each party.
36. The principal issue in this application is identification of the kind of death. Since the first day of the hearing of this review, there has been two Federal Court decisions of considerable assistance in comprehending the expression kind of death.
37. In Repatriation Commission v Codd [2007] FCA 877 at paragraph 31, Gordon J decided as follows:
31 The phrase "kind of death met by the person" in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks "questions of medical causation" about the cause of death and does so in a particular context – the VE Act and, in particular, Part VIII of the VE Act: see also Explanatory Memorandum to the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) pp i-ii.
38. In Byrne v Repatriation Commission [2007] FCAFC 126 the Full Federal Court at paragraph 34 decided:
An important initial question for the AAT was, therefore, to decide what caused Mr Byrne ’s death in order to establish whether a relevant Statement of Principles applied. That conclusion was required to be reached on the balance of probabilities (s 120(4)). Of necessity, it required findings of fact to be made. [emphasis added]
39. Accordingly, before the reasonableness of the applicant's hypothesis in the present case can be determined, it is necessary to make a finding on the balance of probabilities (s 120(4)) of the cause of death of the late Mr Reardon. That exercise will require findings of fact. Only when the kind or cause of death has been determined, can a decision then be made whether a Statement of Principle (SoP) has any application. If it does, it will then be necessary to determine whether a reasonable hypothesis has been raised. That will only occur if a factor within an applicable SoP exists as a minimum.
40. In making findings as to the kind or cause of death, it is impermissible to resort to the SoP (refer Benjamin v Repatriation Commission [2001] FCA 1879; Fogarty v Repatriation Commission [2003] FCAFC 136; Repatriation Commission v Budworth [2001] FCA 1421).
cerebrovascular accident
41. When this application was initiated and immediately prior to the first day of hearing, the only illness or disease relied upon by Mrs Reardon connecting her husband's death with his service, was of cerebrovascular accident. As a fact, that illness was not supported by Dr Collins. He could find no record in the clinical data of that catastrophe having occurred. The applicant's amended Statement of Facts and Contentions lodged after the first day of hearing recorded that Dr Collins had thought that it was unlikely that a cerebrovascular accident had occurred. I agree. There is no clinical evidence of the deceased ever having suffered a cerebrovascular accident. On the balance of probabilities I am therefore not satisfied that cerebrovascular accident was the kind or cause of the veteran's death.
ischaemic heart disease/atrial fibrillation
42. Dr Collins said that ischaemic heart disease was a possible contributing factor to death and may well have played a contributory and hastening role to his demise. He acknowledged that there was an absence of clinical information to disprove or prove it. Professor Fox described the phenomena of controlled cardiac failure where he acknowledged that ischaemic heart disease and atrial fibrillation had previously existed but was under control by prescribed medication. ECG evidence five days prior to death showed the deceased was not in heart failure. Professor Harper also agreed that previous cardiac failure suffered by the deceased had been treated and there had been a good response. He found nothing in the clinical data documenting shortness of breath, pulmonary congestion, fluid retention or elevated venous pressure all of which he said would have been documented if there had been cardiac failure. Professor Cade agreed with the opinions of Professor Harper and also said that his interpretation of the clinical data did not reveal the presence of cardiac failure. He noted that there had been previous and adequate treatment for cardiac failure and whilst acknowledging that it was theoretically possible that ischaemic heart disease did contribute to death, he regarded that possibility as being speculative.
43. On balance it would appear that the deceased had previously suffered from ischaemic heart disease and atrial fibrillation which had responded well to treatment. In the absence of supporting clinical data it would not appear to have caused, contributed or hastened death. None of the medical witnesses elevated the likelihood of ischaemic heart disease and or atrial fibrillation beyond a possible cause. Professor Cade regarded that possibility as being speculative. I cannot find, on the balance of probabilities, that the kind or cause of death was ischaemic heart disease or atrial fibrillation.
carcinoma of the bladder
44. Dr Collins, who did not give evidence on the second day of hearing, reported on 11 January 2006 that there was a possibility of the deceased having suffered a primary bladder tumour. He reported that the clinical data did not demonstrate any malignancy but said the possibility of a primary tumour could not be excluded. Professor Fox said in evidence that he agreed with an opinion expressed by Dr Moss, the deceased's treating urologist, that a polypoid tumour observed at the base of the bladder neck was consistent with the prostate tumour growing into the bladder. It was his opinion that the deceased did not suffer a primary malignancy of the bladder, that is, there was an invasive prostate cancer. He also dismissed the possibility that there was a secondary bladder tumour.
45. On the balance of probabilities, I am not satisfied that the deceased did suffer from carcinoma of the bladder. I cannot find that it was the kind or cause of the deceased's death. The connection between this condition and death was put no higher than possibility. The requisite standard of proof is therefore not achieved.
carcinoma of the liver
46. Dr Collins reported that it was not unreasonable to conclude that the deceased suffered from liver metastases secondary to prostate cancer but he acknowledged that such a condition had not been diagnosed and it was uncommon for prostatic cancer to metastasise into a person's liver without metastases of the bones.
47. Professor Fox acknowledged that it was common for prostate cancer to metastasise into a liver with bony metastases. In the absence of that pathology he remained adamant the prostate cancer was the primary site. He noted:
(i)a finding of liver metastases in the clinical notes and recorded on the death certificate;
(ii)a finding of metastases on ultrasound; and
(iii)the absence of any other known primary site.
He also dismissed involvement from the bladder because of his opinion that it was invaded by the prostate tumour as opposed to it being a primary site.
48. On balance, I am satisfied that the deceased did have liver metastases with the prostate being the primary site. In his report of 1 January 2007, Professor Fox recorded his opinion of death being due to locally advanced prostate cancer as well as liver metastases. In evidence he said it was clear cut the deceased died from prostate cancer. Professor Cade said the deceased died from advanced refractory malignancy being cancer of the prostate and multiple liver secondaries related to the prostate.
49. I am satisfied the deceased was overwhelmed by an advanced and refractory malignancy which caused a very limited life expectancy. The prostate cancer was in very large part responsible for the demise of Mr Reardon. Whilst liver secondaries were present, their origin was the prostate cancer. The contribution to death, by the liver cancer, is impossible to quantify but I would think it to be very small, probably less than de minimus, having regard to the clinical data associated with the prostate cancer.
50. A Statement of Principle of the liver (171 of 1996) has been issued by the Repatriation Medical Authority (contrary to the submissions of the applicant – refer paragraph 6.14) but it has no application. It specifically is concerned with a primary malignant tumour arising from the cells of the liver (refer paragraph 2(b)). As may be seen earlier, the liver cancer suffered by the deceased was secondary to the prostate malignancy.
51. Whilst the absence of a Statement of Principle may enliven the principles decided in Bushell v Repatriation Commission (1992) 109 ALR 30 giving rise to a reasonable hypothesis pre-existing the Statement of Principle regime, I am not satisfied that a contribution to the death by liver cancer has been raised by the material. The link of connection to service has been broken by the inability to satisfy the Statement of Principle for prostate cancer. Unless it is satisfied, (by reason of the prostate being the primary site of the secondary liver cancer) the hypothesis is not reasonable. As will be seen later, I am not satisfied that the factors within the prostate Statement of Principle exist as a minimum. A reasonable hypothesis connecting service with prostate cancer cannot be raised.
carcinoma of the prostate
52. This was a condition over which there was no controversy by any of the doctors. The deceased did suffer from it, he had been treated for it for many years and by reason of the medical evidence heard in these proceedings it was the predominant illness suffered by the deceased. It ultimately caused him to become infirm and be admitted for palliative care. It was the condition which overwhelmed the deceased by a considerable degree and was the kind or cause of death.
53. The Full Court decision of Repatriation Commission v Deledio (1998) 83 FCR 82 provides a useful framework in order to determine whether a veteran can establish a reasonable hypothesis.
54. Having regard to the above findings, I am satisfied that the only hypothesis which can be pursued is that of war‑caused carcinoma of the prostate. The first two stages of Deledio can be established to the extent that there is a hypothesis between service and death and SoPs with respect to malignancy of the prostate did exist within the assessment period namely; Nos 84 of 1999 and 28 of 2005, (Instrument No 69 of 2002 is not relevant to these proceedings.)
55. The application however fails at stage three of Deledio because none of the factors in either SoP exist as a minimum. Put another way, none of the factors in either Instrument refer to smoking. The hypothesis therefore is not consistent with the template of the SoP because it does not contain one or more of the factors determined by the Repatriation Medical Authority which must exist as a minimum. The hypothesis therefore is not reasonable.
56. The decision under review will be affirmed.
footnote
57. The Tribunal has objectives of providing a mechanism for review that is fair, just, economical, informal and quick (refer s2A of the Administrative Appeals Tribunal Act 1975). Sadly, some of those objectives were not fulfilled, as may be seen by the following.
58. This application was lodged in October 2004. There was delay in the applicant's representatives' identifying the hypothesis being pursued. This caused an inability by the respondent to investigate it and obtain opinions. During the first day of hearing on 10 November 2006 (having been adjourned from a previous listing on 29 September because a witness was then unavailable), the applicant's representative then sought to raise hypotheses which had not ever been pleaded in a Statement of Facts and Contentions lodged when the application was certified as ready to proceed. This caused considerable debate during the hearing (refer Trans. day 1, pp19 – 23). I allowed the new hypotheses to be put to Dr Collins but adjourned to another date to allow further investigation and cross‑examination, by the respondent (of Dr Collins) and for filing of amended Statement of Facts and Contentions by both parties.
59. At the resumption on 28 May 2007, Dr Collins was not called. One of the respondent's witnesses was not then available and the matter was adjourned to 14 August when the evidence concluded. Both representatives accepted an invitation I offered them to lodge written submissions, having regard to the dislocation of the hearing and the complexity of the medical evidence.
60. I subsequently became aware of the Repatriation Medical Authority issuing another Statement of Principle for ischaemic heart disease. I caused a copy of it to be sent to the representatives for consideration.
61. Both representatives did not comply with the Directions timetable for lodging submissions despite also being given an extension of time to do so. I intended to deliver the Reasons for Decision on 29 November 2007, more than two weeks after the date for submissions had been directed from the respondent and which had not then been lodged. When the respondent learnt that the Decision was to be delivered, a request was made for a further extension of time – which I granted – for 48 hours. I offered the applicant's representative a right of reply to 6 December 2007, being mindful that the Decision could be concluded and delivered on 7 December 2007, from which date I would be absent until January 2008. It was learnt, on 7 December 2007 that the representative was interstate and the Reply had not been drafted. The Reply was lodged on 11 December 2007.
62. Despite the provision to both parties of transcript and notification of a recently issued Statement of Principle for ischaemic heart disease, the applicant's submissions were lodged on 29 October and the respondent lodged its submissions on 29 November (when it was learnt a decision was about to be delivered). Whether it is procedurally unfair to deliver a decision when representatives fail to comply with Directions for lodging submissions – which are intended to advance their respective cases and assist the Tribunal – can be debated on another occasion. The reasons for the delays in this application were unacceptable. The parties deserved better from their representatives.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Grace Carney Personal Assistant
Dates of Hearing 10 November 2006, 28 May and 14 August 2007
Date of Decision 16 January 2008
Solicitor for the Applicant Mr D De Marchi
Departmental Advocate Ms T Chant
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