Robinson and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 7

Robinson and Repatriation Commission (Veterans’ entitlements) [2016] AATA 7 (14 January 2016)

Division	Veterans' Appeals Division
File Number	2015/0892
Re	Barbara Robinson
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	14 January 2016
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Miss E A Shanahan, Member

VETERANS’ AFFAIRS – widow’s claim for pension – death from metastatic carcinoma of the prostrate – hypothesis raised linking carcinoma of the prostrate to excessive alcohol intake – operational service in the United Kingdom in 1944 and 1945 – no active service – claims relating to increased fat in diet and cigarette smoking abandoned – no material pointing to a causal relationship between service and alcohol intake – decision affirmed. 

Legislation

Veterans’ Entitlement Act 1986

Cases

Forrester v Repatriation Commission (2013) FCA 898
Bull v Repatriation Commission (2001) FCA 1832
Summers v Repatriation Commission (2015) FCAFC 36
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stares (1996) 66 FCR 594
Hill v Repatriation Commission (2005) FCAFC 23
East v Repatriation Commission (1987) FCA 242
Repatriation Commission v Codd [2007] FCA 877

REASONS FOR DECISION

Miss E A Shanahan, Member

14 January 2016

1. Mrs Barbara Robinson lodged a claim for a widow’s pension with the Department of Veterans’ Affair (DVA) on 7 February 2012.  Her claim was based on the hypothesis that her husband’s death from metastatic carcinoma of the prostate on 9 November 1996 was related to his operational service in the Second World War.  A DVA representative rejected the claim on 24 February 2012. Mrs Robinson lodged an application to the Veterans’ Review Board (VRB) for reconsideration of this decision on 20 February 2013.  On 10 December 2014 the VRB affirmed the decision under review.  Mrs Robinson was notified of this decision on 3 February 2015. She then lodged an application to the Administrative Appeals Tribunal for a review of the VRB decision on 26 February 2015.

2. At the hearing Mrs Robinson was represented by Ms Fiona Spencer of counsel, who was instructed by Williams Winter solicitors. The Repatriation Commission (the Commission) was represented by Mr Ken Rudge, a solicitor of the Commission. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) to which I assigned the Exhibit number R1.  Both parties tendered further documentation, a list of which is appended to this decision.  Mrs Robinson gave evidence before the Tribunal. 

   BACKGROUND TO THE APPLICATION

3. The veteran, Arthur Douglas Robinson, enlisted in the Australian Army (the Army) on 29 December 1941 at the age of 18 and served until 12 February 1943. He was predominantly stationed in Queensland throughout that period.  He then volunteered for the Royal Australian Air Force (RAAF) and became a member of the RAAF on 13 February 1943, where he served until 20 March 1946.  In the RAAF he served in the United Kingdom, arriving there by ship on 12 August 1944 and leaving (again by ship) on 22 January 1946.  However, he had  been removed from all active lists on 9 October 1945 and a later reports states that he had seen no active service.  On entering the RAAF he had been found to be extremely fit with no abnormal physical finding; and it was noted that he smoked two ounces of tobacco per week (which  converted to cigarettes would be  approximately 60 or 70 roll yours owns per week).  He did not drink alcohol. 

4. On 4 May 1944 the veteran was admitted to hospital in the United Kingdom (Western Fever Hospital in Fulham) with a provisional diagnosis of diphtheria.  He was considered to be dangerously ill.  His mother was notified of his illness.  He spent 44 days in hospital. Eventually bacterial cultures resulted in the growth of a beta haemolytic streptococcus and the diagnosis was altered to scarlet fever.  This was in a pre-antibiotic era and treatment for infection was limited.  From the records the treatment appears to have been predominately Thymol gargles and general supportive nursing. 

5. On 1 October 1945 the veteran was again hospitalised with a fever and was admitted to a fever hospital where he stayed for 26 days.  He was eventually diagnosed with glandular fever. 

6. Due to his service in the United Kingdom, all of the veteran’s service in the Army and RAAF is considered to be operational service. 

7. Upon his return to Australia the Veteran and his brother Gordon were established in a grocery business by their mother.  They continued to operate and run this business for some three years.  The veteran then worked in the real estate industry for R J Buxton as a salesman for five years.  Thereafter, he became a used and new car salesman spending most of his working time at Bayside Motors where he was a manager.  He retired in 1986 approximately, at which time he qualified for a service pension.  However, he continued to work from home on a small scale buying and selling cars at auction centres and restoring motor vehicles. 

8. Mrs Robinson met the veteran in 1951 when she was working for Buxton Real Estate in an administrative role.  She and the veteran became engaged in 1952 and married in 1953.  She had no knowledge of his smoking and drinking habits between his discharge from service and when they met.  In her evidence she said that from the time they met he was a heavy smoker and what she termed a big drinker, although she had difficulty nominating exactly how many drinks per day the veteran indulged in as she did not see him drinking other than at home. 

9. Mrs Robinson believes her deceased husband continued to smoke until the mid-1980s although he had tried to stop on several occasions prior to that date.  In terms of his alcohol consumption, she described his usual practice of having counter lunches at a hotel opposite the car yard and often conducting business at the hotel, and developing a pattern of drinking after work at the Brighton Yacht Club.  This of course was in an era when there was six o’clock closing in hotels, but yacht clubs were able to serve alcohol for an unlimited period of time. 

10. Mrs Robinson’s evidence has varied over the years in relation to the pattern of the veteran’s drinking.  In her evidence before the VRB she said that: he would spend a good couple of hours every night at the Brighton Yacht Club she presumed drinking and then come home for dinner at 7.30pm, after which time he did not drink any further alcohol although at weekends he would drink beer at nights.  She did not know how much he drank at the hotel at lunch time or after work, or how much he drank at the yacht club.  Her husband had not spoken with her about the war or his drinking habits during the war.  In her evidence before the Tribunal she stated that he would sometimes stay out drinking until 4 or 5am and would come home so inebriated he would fall asleep over the steering wheel of his car parked in the garage. 

11. There is evidence in medical records relating to the veteran’s alcohol intake that in 1981 he drank one bottle of beer per day and in 1991, two to three glasses of beer per day.  Mrs Robinson challenged these figures, stating he underestimated his drinking intentionally to give the right impression.  However, she agreed she did not know exactly how much he drank.

12. Similarly with his smoking, the medical records state that he stopped in 1977 although Mrs Robinson insists he did not stop until 1986.  However, as she has abandoned the hypothesis which relates smoking to the development of carcinoma of the prostate, his cigarette usage is irrelevant.  There is evidence in a statement in the T-documents provided by the veteran’s brother, Mr A Robinson, stating that the veteran did not smoke before enlistment.  The veteran’s brother had also been in the RAAF and had been posted to the United Kingdom.  He said he did not see the Veteran smoking whilst in England nor did he see him smoking on his return to Australia. 

13. Mrs Robinson gave evidence that when the veteran was under the influence of alcohol, which he generally tolerated well, he did become abusive and had on occasions been physically abusive toward her.  When he was sober she described him as a lovely gentleman.  At one stage, she had contemplated divorce and actually consulted a solicitor but did not proceed.  When the veteran became ill in 1991 with carcinoma of the prostrate his alcohol consumption did reduce.  In the 1970s on her recollection he had lost his licence for a period of 12 months for driving under the influence of alcohol.  On another occasion, or perhaps on more than one occasion, he had been arrested while inebriated and spent a night in the Brighton police cell.  As previously stated the medical records do not reflect this amount of alcohol intake.

14. According to Mrs Robinson, the veteran’s favourite drink was beer but he would drink up to one bottle of wine at a dinner party.  He would also occasionally drink whisky and other spirits. She described her late husband as being partial to one to three glasses of port after a meal. 

15. Mrs Robinson recollected that the veteran had developed some urinary symptoms form of frequency of micturition in the early 1980s.   He had reported to her that he had noticed blood in his urine.  He did see a general practitioner at that time and the discoloured urine was apparently attributed to drinking red wine.  Mrs Robinson was uncertain if any investigations had been conducted and if so what results had been found.  She considered this may well have been the early symptoms of his carcinoma of the prostate, which was diagnosed in 1991 on the basis of an elevated PSA (prostate-specific antigen). 

16. The veteran was admitted to the Heidelberg Repatriation Hospital for a radical prostatectomy on 23 June 1991.  However, at operation he was found to have metastases in his iliac lymph nodes.  Radical resection was abandoned and instead a transurethral prostatectomy, to ensure unobstructed micturition, was undertaken.  Shortly thereafter he was found to have secondary deposits in his ribs.  In 1994 a bilateral orchidectomy was performed at the Alfred Hospital in order to control or at least slow the development of his bony metastases.  He received radiotherapy for the bony metastases. 

17. The veteran was admitted to Bethlehem Hospital for palliative care in 1996.  Shortly before his death he suffered two transient ischaemic attacks with adverse impact on his speech and some problems with swallowing but these apparently improved.  At this time Mrs Robinson was in St Vincent’s Hospital undergoing resection for carcinoma of the colon.  The veteran died in Bethlehem Hospital on 9 November 1996. 

18. Mrs Robinson did not know her husband until mid-1951 and appears to have had little to do with his family, in terms of obtaining further information regarding his smoking and drinking history, although there is a statement from his brother to the effect that he did not smoke before his enlistment, during the war or after the war. 

19. The veteran’s enlistment medical examination for the Army stated that he smoked but was a non-drinker.  Two years later that is, in 1943, when he transferred from the Army to the RAAF he was once more noted to be a non-drinker. 

20. In her evidence Mrs Robinson repeatedly said that her husband did not discuss his war experiences with her.  However, she gave evidence that he had been required to produce identification before he was permitted to order alcohol in a bar in Europe and in a bar in San Francisco.  She thought this occurred during WWII. There is no evidence whatsoever that the veteran went to continental Europe (as opposed to the United Kingdom) or to the United States of America.  His travel to and from Australia to the United Kingdom was by boat, the trip between Sydney and the United Kingdom taking some 42 days and the return trip from United Kingdom to Melbourne taking 33 days.  It is not known what the veteran’s duties in England entailed after cessation of hostilities in May 1945.

21. While Mrs Robinson described her husband as a very big drinker, she was not able to quantify the volume of alcohol he drank as most of his drinking was done in her absence.  When informed of the various alcohol consumption figures recorded in medical and hospital records - which was at the most, one bottle of beer per day, Mrs Robinson insisted that the veteran hide his drinking. 

    EVIDENCE BEFORE THE TRIBUNAL 

    Mrs Barbara Robinson

22. Mrs Robinson’s evidence has been summarised under BACKGROUND TO THE APPLICATION.  Her recollection of events was poor with regard to dates and her evidence was at times contradictory.

    DOCUMENTARY EVIDENCE

23. The relevant documentary evidence is referred to in BACKGROUND TO THE APPLICATION.  Regrettably, the late veteran’s treating medical practitioners have either retired or died and records are not available.  Records were provided by the Repatriation Hospital, the Alfred Hospital and Bethlehem Hospital.  They have all been referred to where relevant. 

24. It is clear from the RAAF records that the veteran was termed seriously ill when he was admitted to hospital in the United Kingdom on 12 April 1944 with a provisional diagnosis of diphtheria or scarlet fever.  He was subsequently found to have scarlet fever.  The veteran recovered with conservative treatment.  He was hospitalised for 44 days for the treatment of his scarlet fever. 

25. On 1 October 1945 he was again admitted to hospital, with a diagnosis of glandular fever.  He was again treated conservatively with purely supportive therapy and was hospitalised for a total of 25 days.  According to Dr Lester’s report in 1981, during the veteran’s period in United Kingdom he did not see any active service.

26. The veteran’s cause of death has been confirmed as carcinoma of the prostrate with widespread metastatic disease, involving lymph nodes and bones.  The episodes of transient ischaemic attacks occurring shortly before his death were not considered to have any bearing or contribution to death. 

    RELEVANT LEGISLATION

27. As all of the late veteran’s service in the Army and RAAF has been determined to be operational service the standard of proof applicable is  defined in s 120(1) and s 120(3) of the Veterans’ Entitlement Act 1986 (the Act):

    120  Standard of proof

    (1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

    Note:This subsection is affected by section 120A.

    ...

    (3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

    (a)that the injury was a war‑caused injury or a defence‑caused injury;

    (b)that the disease was a war‑caused disease or a defence‑caused disease; or

    (c) that the death was war‑caused or defence‑caused;

    as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

    Note:This subsection is affected by section 120A.

28. As Mrs Robinson’s claim was lodged after 1 June 1994, s 120A of the Act is attracted.  Therefore, the Tribunal is required to assess the reasonableness of a hypothesis in accordance with the existing Statement of Principles (SoP).  In this instance, the relevant SoP is Instrument No 53 of 2014 concerning Malignant Neoplasm of the Prostate.  In her application to this Tribunal she relied purely on the alcohol factor in Instrument No 53 of 2014, which states in part:

    Factors

    6....

    (d)drinking at least 200 kilograms of alcohol within any ten year period within the 20 years before the clinical onset of malignant neoplasm of the prostate; or ...

29. Section 13 of the Act provides for the Commonwealth liability to pay pensions where the death of the veteran was war-caused. 

30. Section 8 of the Act provides for a disease or an injury to be taken as war-caused if:

    8War‑caused death

    (1)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:

    ...

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

31. The Tribunal is also required, where it finds the existence  of a hypothesis, to proceed to determine the reasonability and validity of the hypothesis advanced by the claimant in accordance with the steps set out by the Federal Court  in Repatriation Commission v Deledio (1998) 83 FCR 82:

    1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

    2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

    3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

    4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

    SUBMISSIONS

32. Ms Spencer addressed the evidence, which covered the period from 1953 until 1996 when the veteran died.  Mrs Robinson’s evidence included her observations of her husband’s drinking habits up until 1986 when he is said to have decreased his alcohol intake.  Mrs Robinson had no knowledge of her late husband’s drinking prior to meeting him in 1951.  Ms Spencer acknowledged there was a gap in the record of the veteran’s alcohol intake between 1946 and 1951, although it was well documented that as of 2 October 1942 his alcohol intake was zero.  This was documented on his entry to the RAAF. 

1. Ms Spencer submitted that the Tribunal should draw the inference that the Veteran’s drinking in 1951 was the same as it had been in 1946.  In doing so,  Ms Spencer contended that the facts in this matter were similar to those in Repatriation Commission v Stares (1996) 66 FCR 594 (Stares), where it was held that the question asked:

   ... is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis ... is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts.

   Mr Stares had served in New Guinea as an infantryman and this was considered to have been stressful.  In Stares the Full Court of the Federal Court determined that whether a hypothesis is raised in a particular case, the decision-maker is entitled to make assumptions about the existence of facts.  In addition, they stated that whether the assumption of a particular fact means that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstance of a veteran’s service must depend upon all the circumstance of the case in question.

2. Ms Spencer also relied on the decision of Hill v Repatriation Commission (2005) FCAFC 23, where at paragraph 103 the Full Court said:

   It is one thing to say that a tribunal must consider any inferences that are reasonably open on the material before it. It is altogether another to say that a tribunal must consider every conceivable permutation of the facts, and engage in speculation and conjecture as to possible hypotheses. The former is a course that Deledio not only permits but requires. The latter has no place under the VE Act.

3. Ms Spencer referred the Tribunal to the decision of the Full Court in Summers v Repatriation Commission (2015) FCAFC 36; and to the decision of Mortimer J in Forester v Repatriation Commission (2013) FCA 898. Both of these decisions made similar consideration to the matters in Hill and Stares.

4. Ms Spencer contended that the Tribunal should make inferences regarding the late veteran’s alcohol consumption both during his service and in the period between 1946 and 1951, despite there being no material pointing to any alcohol intake during that period.

5. Mr Rudge contended that the material before the Tribunal did not quantify the alcohol the veteran had consumed other than the evidence contained in medical and hospital reports which stated that the veteran had said he consumed one bottle of beer per day at the most.  (This would have been a 26 ounce or 750ml bottle.)  Mr Rudge did accept that if the Tribunal relied purely on Mrs Robinson’s evidence as to the late veteran’s alcohol consumption between 1971 and 1981, then the veteran would have met the requirement of imbibing the equivalent of 20 kilograms of alcohol per annum in that 10 year period.

6. Mr Rudge submitted that there was no material before the Tribunal indicating the cause of the veteran’s alcohol consumption and that the material did not point to any causal relationship with the veteran’s operational service.  He noted that the veteran had not seen active service and that his alcohol consumption had been zero prior to 2 October 1942.  While there was a lack of evidence regarding the veteran’s war-service, there was extensive evidence regarding his involvement in the Brighton Yacht Club and his subsequent employment as a car salesman, both of which were associated with a substantial alcohol intake. 

7. Mr Rudge distinguished the decision in Forrester and Bull v Repatriation Commission (2001) FCA 1832, in that in both those instances the veteran had experienced stressful episodes in service and had been a drinker prior to enlistment.

8. Mr Rudge relied on the decision of Gordon J in Repatriation Commission v Codd [2007] FCA 877, wherein Her Honour stated (at paragraph 12):

   As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532–533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366–367 and 372–373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].

   TRIBUNAL’S DELIBERATIONS

9. The Tribunal notes that the veteran had operational service during the Second World War when he was posted to the United Kingdom while serving in RAAF.  It would appear from the information provided that he did not see any active service while in England, presumably as a result of two bouts of ill-health which required prolonged hospitalisation in April 1944 and October 1945.  His record of service does not reveal any visits to or transit through continental European countries or the United States of America.

10. While initially Mrs Robinson’s claim for the widow’s pension was based on several relevant factors in accordance with the SoP (namely cigarette smoking, alcohol consumption and consumption of greater than 40 per cent increase in dietary fat), her application to this Tribunal relates only to the late veteran’s alcohol consumption as delineated by Instrument No 53 of 2014 concerning Malignant Neoplasm of the Prostrate. In particular, Factor 6(d):

    drinking at least 200 kilograms of alcohol within any 10 year period within the 20 years before the clinical onset malignant neoplasm of the prostrate;

11. Having considered all the material before the Tribunal, I find that as a result of the lack of any material relating to the veteran’s alcohol intake between 2 October 1942 and late 1951, the material does not point to the hypothesis raised by Mrs Robinson.  Nor can the Tribunal infer from the veteran’s drinking pattern from 1951 as described by her that the veteran’s excessive alcohol intake was in any way related to his operational service. 

12. The only material that might tenuously point to any such causal relationship is Mrs Robinson’s evidence that her late husband told her he was required to provide identification in order to be served with alcohol.  This she said had occurred in bars in continental Europe and San Francisco.  There is no evidence in the official RAAF file that the veteran was deployed or transited through San Francisco or any  European country. 

13. Despite the beneficial nature of the Veteran’s Entitlement Act 1986, and the provisions of s 119(h)(i) and (ii) of the Act with respect to the passage of time, and the absence of  complete military records, the Tribunal in the words of Gordon J in Codd finds that:

    ... A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis:

14. Having found that there is no reasonable hypothesis, the Tribunal, the claim fails at Step 1 of the Deledio process. The Tribunal affirms the decision under review.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

[sgd]........................................................................

Administrative Assistant

Dated 14 January 2016

Date of hearing	4 November 2015
Counsel for the Applicant	Fiona Spencer
Solicitors for the Applicant	Williams Winter Solicitors
Advocate for the Respondent	Mr Ken Rudge, Department of Veterans' Affairs

APPENDIX

A1Statement of Barbara Rita Robinson dated 20 February 2015

R1T-Documents

R21-17 Entry Examination RAAF Flying Ranks

R31-17 Repatriation Hospital (Drug therapy)

R4Alfred Hospital Reports

R5      Extracts from Repatriation Hospital pages 170-173

R6      VRB Transcript dated 10 December 2014