Robins and Repatriation Commission - [2002] AATA 860

DECISION AND REASONS FOR DECISION [2002] AATA 860

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/1388

VETERANS APPEALS DIVISION        )
           Re      KATHLEEN VERONICA ROBINS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date26 September 2002
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in substitution decides that the death of Norman James Robins was war-caused.
  .........Sgd Mr J Handley.....................
  Senior Member
CATCHWORDS
Veterans' Entitlements - Multiple hypothesis - conditions of osteoarthritis of knee & emphysema conceded as war-caused - whether contributed to death - whether deceased fell by reason of knee injury causing convalescence & infirmity in turn precipitating fatal broncho pneumonia - whether death hastened - decision of VRB set aside - death found to be war-caused.
Bushell v Repatriation Commission (1992) 109 ALR 30

REASONS FOR DECISION

26 September 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans Review Board made on 27 July 2001. The VRB then decided to affirm a decision previously made by the Repatriation Commission on 3 October 2000. The Commission decided that the death of Norman James Robins was not related to service.
Mrs Robbins brings this application as the widow of the late Mr Robbins who died on 3 June 2000. Mr Robins was born on 15 July 1924 and Mr and Mrs Robins were married on 17 May 1947.
In his lifetime Mr Robins had a number of conditions accepted as war-caused namely; malignant melanoma of the skin, multiple fractures of his left and right arms, non-melanotic malignant neoplasm of the skin, fractured ribs, osteoarthritis of the left knee and haemorrhoids. Conditions of malignant neoplasm of the prostate, bilateral sensori neural hearing loss and bilateral tinnitus were found not to be war-caused.
The certified cause of death was "broncho pneumonia - 3 days; metastatic squamous cell carcinoma - 6 months; metastatic carcinoma of prostate". The application was listed for hearing in Bendigo on 5 August. Mrs Robins then gave evidence. Mr Larkins who appeared on behalf of Mrs Robins indicated that upon the resumption of the hearing in Melbourne it was proposed to call Dr Byron Collins a consultant forensic pathologist.
The respondent, at the commencement of the hearing, was awaiting a report from Dr Stevenson with respect to the hypotheses being advanced by the applicant. The hypotheses - having regard to the nature of the deceased's service as a member of vessels engaged in minesweeping activity in the South West Pacific during the Second World War - ranged between an increased consumption of animal fat, giving rise to the prostate cancer and death by emphysema by reason of increased smoking habit associated with service. It was anticipated that between the first day of hearing in Bendigo and the resumption in Melbourne, the respondent's medical evidence would have been complete and the hypotheses being advanced by the applicant would have been identified.
At the commencement of the hearing in Bendigo Mr Douglass on behalf of the respondent conceded that a sufficient association existed between the deceased's service and his smoking habit to permit the respondent to concede emphysema as being war-caused. The issue remained however whether emphysema contributed to death.
Kathleen Veronica Robins
Mrs Robins gave evidence. She adopted a statement prepared by her on 1 March 2002, which was received into evidence. Omitting irrelevant parts that statement is reproduced as follows
I married Norman James Robins on 17 May 1947. We first met soon after his enlistment in the RAN. Norman served in the RAN from 4 November 1942 to 21 June 1946.
Norman was born on 15 July 1924 and died on 3 June 2000.
My husband was never terribly forthcoming about his war service although he did tell me that he served on Minesweepers in the South West Pacific area. His actual duties were as Ship's Writer and these duties entitled secretarial type work including recording and reporting information, allocating payrolls and the like. He told me that these duties were stressful as he had to meet deadlines and be accountable to superiors. He also told me that the vessels OIT which he served saw enemy action and that on those occasions his duties required him to man a gun
Norman was an anxious man from when I met him. He did enjoy a good time and he enjoyed life but he was always intense.
My husband told me that he took up smoking after his enlistment in the RAN. I recall that when I met him he would smoke occasionally and I regarded him as being a light social smoker at that stage. By discharge Norm was smoking substantially more than when I first met him and I guess that by that stage he was smoking approximately 30 to 40 tailor made cigarettes per day.
I understand that my husband's service was stressful. I believe that the actual nature of his duties and having to meet deadlines was stressful. Furthermore, he indicated that he found that the duties involving sailing through waters which were mined and facing enemy action caused him stress.
It is my understanding that Norm commenced smoking because of peer group pressure. ready availability of tobacco (he indicated that it was supplied in his rations and was otherwise cheap), stress of his service and long periods of boredom. My husband kept a diary which has still been kept within the family and the diary indicates that there were long periods with little to do.
After discharge Norm was employed as a Carpenter in Shepparton. He mainly worked in a workshop building furniture but on occasions Ite did assist in residential building work. In the early days after discharge he started work at 8.00am. I recall that in those days he was having his first cigarette straight after breakfast (and before he departed for work). Norm would come home for lunch. He would finish work at 5.30pm and would come straight home. Later on in our marriage he would have a drink in the pub on a Friday night before coming home. I noticed that Norm smoked fairly constantly from the time of his first cigarette before leaving for work.
I myself took up smoking in about the 1950s. I smoked at the rate of 20 cigarettes per day and Norm smoked significantly more than me.
Norm and I went onto the Land and ran a Dairy Farm in about 1956. We ran the farm for about 12 years. During that time Norm took up smoking "roll your own" instead of tailor made cigarettes. I would purchase tobacco with the grocery shopping on a Friday. I recall that the standard order was 4 packets (2oz) of roll your own tobacco and I would buy an additional 1 or 2 packets of tailor made cigarettes for him. Norm would consume all of this tobacco within the week. He smoked at the aforementioned rate until about the late 1970s/early 1980s.
My husband ceased smoking suddenly following a bad bout of bronchitis. He had suffered intermittent bouts of bronchitis for many years beforehand. I recall that he had a bad productive cough and I had to soak his handkerchiefs as a consequence. My recollection is that he first developed a cough whilst we were running the Dairy Farm (between about 1956 and 1968).
My husband told me that he injured his left knee playing football in the RAN. Certainly I was aware that his left knee caused him a lot of problems during our marriage. Norm suffered a number of heavy falls consequent upon his left knee giving way. Some of the falls were very heavy and led to fractures of both arms. I understand that the left knee injury was accepted by the Repatriation Commission as war caused. I also understand that in more recent years the fractures of the arms were accepted as war caused as a direct consequence of Norm falling due to the left knee injury.
Norm did eat a high fat diet after the war. My husband certainly believed that his liking for animal fats was due to his war service conditions and I understand that he wrote to the Department of Veterans' Affairs indicating that fact. I have already outlined in my submission to the Veterans' Review Board what I believe was a typical diet for my husband.
Cancer of the prostate was diagnosed about 2 to 3 years before Norm's death. Prior to the diagnosis of the cancer he had suffered obstruction and had undergone surgery. After the actual diagnosis of malignancy Norm's health deteriorated and particularly so in the last 9 months. He spent the last year in and out of hospital.
Norm had a pacemaker inserted earlier in the year 2000. The surgery was performed at Mercy Hospital in East Melbourne. At that time a lump in his throat was discovered and a biopsy (taken in March 2000) revealed that the lump was malignant. My husband was booked in for surgery to have the lump removed but the surgery had to be cancelled because on Easter Saturday 2000 Norm suffered a heavy fall and fractured his pelvis.
Norm's fall on Easter Saturday occurred at home. The fall was unwitnessed. He fell on the lawn beside the house. The area where he fell was flat and there was nothing that I could see would represent a tripping hazard. We found Norm after he whistled for help (being the only way that he could attract our attention). Following the fall my husband was taken to Goulburn \/alley Base Hospital and was admitted. He was diagnosed as suffering a fractured pelvis. Norm never told us how he fell and I didn't even think to ask. I believe. however. that Norm's fall quite likely was due to the instability of his left knee given the number of other heavy falls he had suffered as a consequence of that injury.
Norm was in the Goulburn Valley Base Hospital for about 10 days and was then transferred to Murray Valley Private Hospital,. Wodonga and then later again to Shepparton Private Hospital. He was immobile from the time of his fall and his health rapidly deteriorated thereaftcr. I recall that he was on oxygen in hospital.
Norm died at the Shepparton Private Hospital. I understand that there was no post mortem examination.
My husband's treating family doctor was Dr. P. O. Dwyer.
In evidence Mrs Robins said that her husband served on board the vessels 'Echuca' and 'Swann' which were both minesweepers. She said he was engaged as a "writer" which she described as having to undertake secretarial type work involving typing and shorthand. Mrs Robins said that her husband was engaged in these duties because he undertook typing and shorthand as a civilian prior to enlistment.
The applicant described her husband as being a man who was anxious throughout his life as a civilian and who also was meticulous and intense. She said he was smoking cigarettes when she first met him but rapidly increased his habit to 30-40 cigarettes at discharge. She produced a diary kept by him during service where between July and November 1944 there are many references to Mr Robins being stationed in hot tropical conditions with much leisure time and apparently being engaged in smoking to relieve boredom.
In about 1980 Mr Robins was diagnosed with severe bronchitis and was incapacitated for about 3 weeks. It was at that time that he gave up smoking. A reference made by the VRB to ceasing cigarette smoking in the 1990's was said by Mrs Robins to be incorrect.
Mrs Robins said that her husband had a productive cough for many years and certainly well before 1956 when she and her husband were engaged in a partnership in a dairy farm near Shepparton. Despite his persisting cough she said that her husband was keen on remaining fit and rode a pushbike daily including a 30 kilometre ride on weekends. She said he was riding his bike up until about 3 years before his death. This was despite persisting left knee pain and discomfort.
In 2000 the deceased was admitted to the Mercy Hospital in Melbourne where a pacemaker was inserted. He was due to have surgery to have a tumour removed from his neck later in 2000, however he suffered a fall at home causing a fractured pelvis which resulted in hospital admission. Mr Robins died 6 weeks later. Mrs Robins said that she understood that her husband fell at home because his left knee gave way. She denied that he tripped.
In cross-examination Mrs Robins said that her husband preferred fatty type foods particularly offal extending to brains, lambs fry and tripe. She said that he preferred food of this type and she always prepared it for him. However Mrs Robins said that she was unaware of her husbands diet before enlistment.
Upon the application resuming in Melbourne on 11 September 2002 Mr Larkin conceded that his client would have difficulty advancing the hypothesis connecting prostrate cancer with service. He relied on three hypotheses connecting service with death which he identified as follows –
(i)have regard to the concession by the respondent that the deceased suffered from emphysema, it was submitted that the death of the deceased from broncho pneumonia was accelerated. It was acknowledged that the deceased may have eventually succumbed to prostrate cancer however that would have occurred at a point much later in time than the death from broncho pneumonia.
(ii)a hypothesis based on the deceased having fallen at home on Easter Saturday 2000 by reason of the osteoarthritis in his left knee (being an accepted disability). It was put that the extent of the osteoarthritis caused left knee instability, precipitating the fall which in turn caused admission to hospital. The deceased's immobility and infirmity whilst an inpatient at hospital caused his respiratory state to deteriorate and because of the presence of emphysema, the deceased developed broncho pneumonia which caused death.
(iii)the presence on the deceased's neck of a malignant squamous cell carcinoma was secondary to the accepted conditions of malignant melanoma of the skin and non-melanotic malignant neoplasm of the skin (skin cancers). The extent and location of the squamous cell carcinoma contributed to death because it affected the deceased's ability to swallow, cough and breathe which also predisposed him to broncho pneumonia.

Dr Paul O'Dwyer

Dr O'Dwyer is a general practitioner in Shepparton who treated the deceased between September 1986 and his death on 3 June 2000.
Dr O'Dwyer was of the opinion that the squamous cell carcinoma on the deceased's neck was "very likely to be secondary to one of his skin cancers". He noted that the deceased had been attending his clinic since 1994 "repeatedly" for treatment of skin cancers affecting his arm and his face. Dr O'Dwyer described the tumour as being a "mass" which contributed to "problems" the deceased had with his breathing, sputum retention and difficulty coughing. In turn he said this contributed to "general debility" which hastened the demise of Mr Robins.
Dr O'Dwyer noted that there were few references in his notes to the deceased having suffered episodic respiratory infections or attending his clinic for treatment however he was aware that Mrs Robins had given a history of her husband having smoked cigarettes for 40 years and having observed him with a productive cough from the 1950's. She had also noted repeated bouts of bronchitis. Dr O'Dwyer was aware that there was x-ray evidence of emphysema three months prior to death. He said that with a productive cough he would not expect his patient or other patients to attend a doctor. He also recalled Mr Robins as being "an uncomplaining person who would have put up with a productive cough without coming to see me".
Dr O'Dwyer was taken to a report he prepared on 28 February 2001 found at page 195 of his clinical notes which were received into evidence as Exhibit 2. The report was prepared for an advocate of the Returned Services League (RSL) who appeared on behalf of Mrs Robins at the VRB. The report records that Dr O'Dwyer found "very little evidence of smoking related disease" however an x-ray report of 8 March 2000 records "early emphysematous changes". Dr O'Dwyer reported that "these changes would no doubt have contributed to Mr Robins terminal event of broncho pneumonia".
With respect to the hypothesis associated with the deceased falling by reason of the presence of left knee osteoarthritis, Dr O'Dwyer referred to a report he wrote to Mr Richard Houghton, an orthopaedic specialist on 16 August 1995. In that report (omitting irrelevant parts) he recorded –
. . . He is having further trouble with his left knee and found that it locked up on him recently. Examination reveals a lot of crepitus and swelling on the lateral joint line. ? cyst of lat meniscus or loose body. He may well need another arthroscopy.
Dr O'Dwyer said that the osteoarthritis in the deceased's left knee "may well have contributed to his falls".
In cross-examination Dr O'Dwyer said that the deceased attended his clinic on approximately six occasions per annum principally for his skin cancers and for his knee injury. He said that if the deceased had raised any other problems they would have been recorded and treated. At no time did Dr O'Dwyer suggest that the deceased undertake lung function tests.
Dr O'Dwyer also noted that the deceased did suffer from prostrate cancer with bony metastases. He acknowledged that the deceased became bed ridden which he agreed contributed to broncho pneumonia however he said the deceased was admitted to hospital because of the effects from the fall which occurred at home. He said the deceased was not admitted to hospital immediately prior to death because of the effects of prostrate cancer. He said that the deceased's immobility contributed to congestion on his lungs. He also had difficulty coughing and breathing which contributed to broncho pneumonia. Additionally he said that in his clinical experience a reasonable "supposition" can be drawn from the large mass on the deceased's neck causing a significant restriction in the deceased's capacity to breathe. Despite the conclusions of Dr Stevenson, a medico-legal consultant engaged by the respondent, Dr O'Dwyer thought the mass on the deceased's neck was significant.
Dr O'Dwyer was taken to a report prepared by Dr Adrienne Buncle a consultant physician in Shepparton who wrote a report on 21 March 2000 (which omitting relevant parts) reads relevantly as follows –
. . . As you know he has painful wide spread prostatic secondaries for which he is on narcotics. He has had several falls now. They have all occurred when he is up and about they come on relatively suddenly but he gets a sensation he is going to faint. He takes some time to settle down once he hits the ground.
. . . But it is possible a more protracted bout of atrial fibrillation is causing these attacks.

Dr O'Dwyer acknowledged that the history taken by Dr Buncle as evident by that report did not refer to the deceased's left knee. However he was of the opinion that the deceased was consuming narcotic drugs which in his experience affect a person's memory and the history obtained from Dr Buncle would be incomplete.

Dr O'Dwyer disagreed with a proposition put by Mr Hermann who appeared on behalf of the respondent that the deceased may have suffered a spontaneous fracture of his pelvis which caused the fall at home. The suggestion was put that the numerous secondary deposits in the deceased's pelvis could have contributed to a weakening of his bones. Dr O'Dwyer conceded that this was a possibility however in his experience a spontaneous fracture is less common where there is a secondary cancer from a primary prostate cancer.
Dr O'Dwyer also conceded that the deceased had suffered long standing vertigo and also suffered "sick sinus syndrome" which may have been responsible for the fall.
In re-examination Dr O'Dwyer said that were it not for the fall the deceased's death was not imminent. Plans had been made for him to be admitted to hospital to have the tumour removed from his neck and a short time prior to the fall a pace maker had been inserted. He said the tumour on the neck was three centimetres in width and he estimated its depth to be between 1 and 2 centimetres. He again agreed with Mr Larkin that the presence of the tumour would have caused the deceased to have difficulty swallowing and coughing. This in turn would have contributed to the presence of broncho pneumonia.
Dr Byron Collins

Dr Collins is a forensic pathologist who provided a report on 5 April 2002 at the request of the applicant's solicitors. He also provided a further report on 19 August 2002 in response to the report lodged by Dr Stevenson. In the latter report Dr Collins said that his earlier opinion remained unchanged.
In his first report he concluded that the certified causes of death were appropriate however as a pathologist, he would have also added the conditions of chronic bronchitis/emphysema and fractured pelvis.
Dr Collins said that the deceased died from a number of "interweaving" conditions. He acknowledged that the deceased did suffer from prostate cancer which would have eventually caused his demise but on the basis of the clinical notes, that event would not have occurred "in the near future". He noted that the deceased had had a pace maker inserted in early 2000 and was consuming cardiac drugs. He also noted that arrangements had been made for the deceased to be admitted to hospital to have the tumour from his neck removed. He also noted that the deceased was not moribund nor was he bed ridden and he was apparently gardening at about the time he fell at home. In those circumstances he believed that the death of the deceased was not imminent.
Dr Collins noted that the deceased had suffered the accepted condition of osteoarthritis of his left knee which had been the subject of medical scrutiny for many years. He noted that there had been a number of instances of the deceased falling which may have been contributed to by the sick sinus syndrome and by vertigo however he said that the fall by the osteoarthritis of the knee could not be excluded. He noted that the presence of the pace maker and the cardiac drugs would have reduced the likelihood of the deceased falling. It was his opinion that a reasonable hypothesis existed connecting service with death by reason of the osteoarthritis of the knee contributing to the fall which in turn caused the deceased to be bed ridden in hospital giving rise to the fatal broncho pneumonia, because of immobility. Added to this he noted that the deceased had a long smoking history, x-ray evidence of emphysema. The deceased was, in the circumstances, pre-disposed to the development of chest and lung infections giving rise to bronchitis which in turn would have precipitated pneumonia and death. He said that cigarette smoking is a well recognised cause of emphysema and bronchitis and is also well recognised as contributing to acute chest infections.
As to the squamous cell carcinoma on the deceased's neck, Dr Collins noted that the deceased had a long and significant history of skin cancers which were also accepted as war-caused. It was his opinion that a strong connection existed between the skin cancers and the squamous cell carcinoma of the neck, being a secondary cancer. In the alternative he said that there was a strong indication that the skin cancers were the origin of the squamous cell carcinoma of the deceased's neck. Dr Collins noted that the deceased had a 3 centimetre mass which would have contributed to difficulty in breathing and coughing which in turn would have contributed to the chest infection. Whilst in his opinion it was likely that the tumour on the neck would have continued to grow and metastasised other organs, the fall supervened and the eventual broncho pneumonia accelerated death.
Dr Collins noted that Dr Stevenson reported that a combination of the carcinoma suffered by the deceased and his age placed him into a category of zero percent of chance of five years survival. Dr Collins said that there was nothing to indicate that the deceased would have died at or about the time that he did were it nor for the broncho pneumonia, either by its association with the pre-existing emphysema, the effects of the fall because of the osteoarthritis of the knee or by the effects upon respiration by the squamous cell carcinoma.
In cross-examination Dr Collins said that he could not identify from the notes of Dr O'Dwyer any references to emphysema other than the chest x-ray of March 2000. However he said this would depend on the severity of the deceased's symptoms, whether he attended for treatment and whether the condition was clinically significant. He agreed that if the deceased only attended Dr O'Dwyer on six occasions per annum for treatment of other conditions, it would suggest that the emphysema was mild or that the deceased was not informing the practitioner. It would appear however that the deceased was not compromised on a day-to-day basis by the emphysema.
As to the hypothesis submitted by Mr Hermann that the deceased suffered the effects of a spontaneous pelvic fracture which caused the fall, Dr Collins said that a scenario of that type was most unlikely. He said a pathological fracture of bone occurs if the force upon the bone is less than the normal anticipated forces, however whilst there was evidence of metastases in the deceased's pelvis, they were not at the site of the fracture. It followed he said that it was unlikely the deceased would have suffered a pathological or spontaneous fracture. He also noted from the pathology reports that the fracture was comminuted which again suggested to him that pathological fracture did not occur.
As to the opinion held by Dr Stevenson that if the deceased's left knee had given way causing him to fall, that he would have fallen to his left side, Dr Collins said that it was not possible to be dogmatic as to that conclusion. He said that the direction of the person falling is dependent on the person's weight, their movements at or about the time of the fall and whether they twisted. He said it was not possible to express any firm opinion either way as to the direction of the deceased's fall.
As to the opinion held by Dr Stevenson that the fall by left knee osteoarthrosis would have only occurred in the presence of ligamentous instability and quadriceps wasting, Dr Collins noted that at August 1995 Mr Houghton noted the quadriceps wasting and he (Dr Collins) anticipated that wasting would have continued.
Dr Collins agreed that the hospital notes had no reference to the presence of the squamous cell carcinoma affecting the deceased's ability to swallow and to breathe, although he noted at page 51 of the hospital notes there was an indication given that the deceased was not coughing "properly". When he was shown page 45 which referred to the deceased consuming food and drink, Dr Collins said that the deceased may have been consuming small portions "to get past the obstruction".
When Dr Collins was asked to comment as the reports of a radiologist at hospital admission not identifying the presence of emphysema, Dr Collins said that the hospital would have been concerned with the apparent fractures and the radiologist may not have then been looking for any chest injury or emphysema.
Dr Collins was adamant that the deceased did suffer from emphysema and disputed an opinion expressed by Dr Stevenson that there was "no evidence of bronchial disease". Dr Collins pointed to the x-ray of March 2000 and of the evidence of Mrs Robins who spoke of her husband being breathless and having a productive cough.
Peter Stevenson
Dr Stevenson is a consultant physician who reviewed the documentation lodged in this application on behalf of the respondent and provided a report dated 2 August 2002.
Dr Stevenson noted that x-rays taken on admission to hospital in April 2000 made no reference to the deceased's chest or lung or the presence of emphysema. He was aware that a chest x-ray of March 2000 did indicate the presence of emphysema but he regarded the condition as being "mild".
Dr Stevenson regarded broncho pneumonia as being the cause of death but said that was a typical cause of the demise of elderly persons. He described broncho pneumonia as being "the old man's friend".
With respect to the hypothesis that the presence of the squamous cell carcinoma on the neck contributed to difficulty in breathing, swallowing, coughing and excluding sputum, Dr Stevenson said that the tumour was "golf ball size". He regarded it as being "sizeable" but "not massive". He said it would "not necessarily affect the airway". He said the persons treating the deceased were apparently not concerned about it because there was nothing in the hospital notes to indicate that the tumour was presenting any difficulties with the respiration or retention of sputum. He said that had there been complications the hospital would have "sucked out the sputum" or provided "airway relief". He thought that the tumour of the neck was not inhibiting respiratory function. If it was, it was his opinion that it would have been untreated only if the hospital thought that the deceased's condition was terminal.
With respect to the fall at home, Dr Stevenson was of the opinion that the degree of muscle wasting in the deceased's legs was not sufficient to cause the fall. He thought that if the deceased had severe osteoarthritis, with ligament instability and severe muscle wasting that the fall would have occurred for reasons other than either vertigo or sick sinus syndrome. Dr Stevenson was of the opinion that the deceased fell to his right side which he said was inconsistent with his left knee giving way.
In cross-examination Dr Stevenson said that he was aware that the deceased was to have surgery to remove the tumour from his neck and that arrangements for that surgery were cancelled by reason of the hospital admission following the fall. He also agreed that the deceased's doctors were of the opinion that he was well enough to undertake the surgery.
CONCLUSION AND REASONS FOR DECISION
I am satisfied on the whole of the material that a reasonable hypothesis does exist connecting the circumstances of the deceased's service with his death.
Whilst three hypotheses were advanced by Mr Larkin connecting service with death, I would prefer that those hypotheses would be "merged". For reasons which follow I am satisfied that the deceased suffered a war-caused and accepted condition of osteoarthritis of his left knee. By reason of his left knee "giving way" because of the presence of that disease the deceased stumbled and fell and was ultimately admitted to hospital. He remained an inpatient until his demise approximately six weeks later. Death was eventually due to the certified cause of broncho pneumonia which had its origin in at least three causes namely –
(i)the immobility caused by the deceased's status as an inpatient and being bed ridden;
(ii)the affects upon the airways by the presence of emphysema as was evident upon chest x-ray of March 2000 being the month before admission and set against the background of heavy smoking, breathlessness and productive cough; and
(iii)the presence of a squamous cell carcinoma on the deceased's neck which by reason of its size and location caused the deceased difficulty with respiration, coughing and removal of sputum which in turn contributed to the acute chest infection giving rise to broncho pneumonia and death.
I am satisfied that the deceased did fall at home because of the presence of osteoarthritis in his left knee. That he fell in the circumstances as described and for the reasons as described is in my opinion more than a possibility. Whilst the deceased suffered "sick sinus syndrome" he had had a pace maker inserted and was consuming cardiac drugs which, on the evidence of Dr Collins, would suggest that the risk of falling had been minimised. There is evidence of prior falling because of the knee injury and this part of the hypothesis in my view is not fanciful or untenable. It is not raised in the "abstract", there is material which points to the possibility of having fallen because of the osteoarthritis of the knee.
The presence of emphysema is undoubted. Firstly it is a condition which was conceded by the respondent as being related a war-caused smoking habit. It is a concession properly made, is consistent with and would satisfy Statements of Principles No. 73 of 1997. There was evidence from Mrs Robins that her husband was breathless and he had had a productive cough for many years. There was x-ray evidence of emphysema in March 2000 being the month before the deceased fell. It is hardly surprising that there were no x-ray reports of emphysema at hospital admission in April 2000 when the deceased presented with pelvic fractures. There is nothing which points to the radiologist taking x-rays of the deceased chest. It is unfair on the part of Dr Stevenson to point to the absence of the radiological absence of emphysema at that time in the absence of any evidence that there were chest x-rays taken at all. I am satisfied that the deceased's lungs would have been compromised by reason of the emphysema and upon the evidence of Dr Byron Collins and Dr O'Dwyer, the deceased was pre-disposed to broncho pneumonia by reason of his prior smoking history and the presence of emphysema. Having become infirm upon hospital admission by reason of the fall at home, the deceased became exposed to the risk of severe chest infection which ultimately contributed to his broncho pneumonia.
Additionally there was a reasonable hypothesis connecting the squamous cell carcinoma of the deceased's neck and his accepted war-caused condition of skin cancers. There appears to be no controversy between the doctors that the squamous cell carcinoma on the neck metastasised from the primary skin cancers. The tumour on the neck was of considerable size. It was described by Dr Stevenson as being "golf ball size" and was more precisely described by Dr O'Dwyer as being 3 centimetres in diameter and between 1 and 2 centimetres in depth. In addition to the infirmity of the deceased, I am satisfied on the material that the presence of that tumour contributed to the eventual fatal broncho pneumonia because of its restriction on the deceased's capacity to respirate, to swallow and to expel sputum and the inability to cough. There is material which points to the development of an acute chest infection by those factors and by the pre-existing emphysema. On the material read and the evidence heard I am satisfied that broncho pneumonia eventually did develop and contribute to death.
I am also satisfied that the demise of the deceased occurred at a point in time much earlier than the anticipated demise which in all probability would have been from the prostate cancer.
There is much to indicate that the deceased would have survived a considerable period beyond the date of his death, having regard to the prior insertion of a pace maker and the plans which were made to have the tumour of the neck removed. I am therefore satisfied that death was hastened and was hastened because of war-caused injuries or illnesses. The death of the deceased is therefore attributable to his service (refer Doolette v Repatriation Commission 1990 21 ALD 489).
The respondent submitted that the hypotheses advanced by Mrs Robins were in the circumstances speculative. I believe this submission to be harsh. I am satisfied that the hypothesis advanced is reasonable because it does possess "some degree of acceptability or credibility". It is not "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous". It is a hypothesis which in my view has been "raised" by the material and is supported by the material. The hypothesis is pointed to by that material, it is not left open and it is in the circumstances a hypothesis which is reasonable (refer East v Repatriation Commission (1987) 74 ALR 518).
I am also satisfied that the opinions held by Drs O'Dwyer and Collins are sound and have been expressed by responsible medical practitioners speaking within the ambit of their expertise, refer Bushell v Repatriation Commission (1992) 109 ALR 30.
In regard to the provisions of s.120 of the Act I am not satisfied that there is sufficient ground to determine that death was not war-caused.
It follows in all of the circumstances that the decision under review should be set aside and in substitution it is decided that the death of Norman James Robins was war-caused.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         Katherine Navarro...........................
  Associate
Date/s of Hearing  5 August 2002 and 11 September 2002
Date of Decision  26 September 2002
Counsel for the Applicant        Mr A Larkin
Solicitor for the Applicant         Williams Winter & Higgs
Counsel for the Respondent    Mr R Douglass
Solicitor for the Respondent    Department of Veterans' Affairs