Roscoe and Repatriation Commission
[2002] AATA 673
•9 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 673
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1281
VETERANS' APPEALS DIVISION
Re: MARY MURIEL ROSCOE
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 9 August 2002
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - passenger on ship - whether operational service - cause of death - leiomyosarcoma - cigarette smoking - whether war-caused
Veterans' Entitlements Act 1986 ss6A, 8, 120(4)
Ahrenfeld v Repatriation Commission (1990) 22 ALD 416
East v Repatriation Commission (1987) 16 FCR 517
McKeown v Repatriation Commission (1995) 39 ALD 30
Proctor v Repatriation Commission (1999) 54 ALD 343
Repatriation Commission v Ahrenfeld (1991) 23 ALD 181
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Kohn (1989) 87 ALR 511
REASONS FOR DECISION
9 August 2002 G.D. Friedman, Member
This is an application by Mary Muriel Roscoe (the applicant), widow of Thomas Edwin Roscoe (the veteran), for review of a decision of the Veterans' Review Board (VRB) dated 17 July 2000. The VRB affirmed a decision of a delegate of the respondent, dated 20 August 1999, to refuse a claim for disability pension for the death of the veteran because the death was not war-caused.
At the hearing of this matter on 16 July 2002 Mr D. De Marchi, solicitor, represented the applicant and Mr G. Purcell of Counsel represented the respondent.
BACKGROUNDThe veteran was born on 10 May 1924. At the age of 18 years he joined the Royal Australian Air Force (the air force) and served from 5 June 1942 to 30 October 1945 within the geographic boundary of Australia. In accordance with s8 of the Veterans' Entitlements Act 1986 (the Act), this period was eligible service. On 26 August 1943 the veteran embarked from Fremantle, Western Australia as a passenger on the MV Koolinda and disembarked at Broome on 31 August 1943 (the voyage).
During service the veteran suffered from rubella in 1942 and diphtheria in 1945. In 1970 he underwent thyroidectomy. In 1987 angina was detected and in 1988 a parotid adenoma was removed. The conditions of coronary heart disease, emphysema and generalised anxiety disorder were later accepted as service-related. The conditions of prostatic hypertrophy, osteoarthritis of the right knee and claustrophobia were not accepted as service-related. In June 1999 the veteran was referred to a surgeon after suffering from upper abdominal pain. A liver biopsy revealed a leiomyosarcoma (a malignant tumour of the smooth muscle-type cells). On 30 June 1999 the veteran was admitted to hospital, where he died on 6 July 1999. The death certificate listed the cause of death as leiomyosarcoma.
On 25 October 2000 the applicant sought review of the VRB decision by the Tribunal.
EVIDENCEThe Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T12), together with three exhibits lodged by the applicant (Exhibits A1-A3) and eight lodged by the respondent (Exhibits R1-R8).
The applicant gave evidence that she first met the veteran in 1944 and they married in 1947. She confirmed the contents of her written statement dated 8 April 2002 (Exhibit A3) and said that at the time he was a confirmed smoker. She said that the veteran told her that he did not smoke prior to service because he was living with his parents. She stated that the veteran continued to be a heavy smoker (40-50 cigarettes per day) for most of his life, although he reduced his consumption slightly in the 1980s after he began to experience chest pains. The applicant said that the veteran stopped smoking in 1998 or 1999.
Jean Aitken, the veteran's sister, gave evidence and confirmed the contents of her undated statement. She said that prior to joining the air force the veteran did not smoke. Ms Aitken stated that after his discharge the veteran continued to smoke heavily until breathing difficulties and chest pain forced him to reduce his consumption in the 1980s and then cease altogether.
Dr R. Collins, consultant forensic pathologist, gave evidence and confirmed the contents of his report dated 5 February 2002. He stated that he agreed with other specialists that tissue removed from the veteran in a biopsy procedure on 4 June 1999 showed a characteristic consistent with leiomyosarcoma. However, he said that there was no evidence as to the location of the primary lesion. In his report he concluded:
…
5. I understand that the late Mr. Roscoe was a heavy cigarette smoker. If it is accepted that there is a real possibility that the primary leiomyosarcoma was bronchial in origin and that his smoking habit was due to the conditions he experienced during the war then, in my view, it could be argued on sound pathological grounds, there exists a reasonable hypothesis linking his demise from leiomyosarcoma with its generation through a war-related consumption of cigarettes.
In cross-examination Dr Collins maintained that his conclusion was soundly based. He said that death from lung cancer was a real possibility.
In a report dated 10 May 2002 (Exhibit A1) Dr C. Ronan, the veteran's treating doctor, stated that for the purposes of providing a death certificate the sole diagnosis of death from leiomyosarcoma was sufficient, and that he was not aware of any other health circumstances that contributed to the veteran's death. However, in a report dated 16 August 2001, to the solicitor then acting for the applicant, he said that in the context of a medico-legal claim it was reasonable to raise the possibility, no matter how small, of an alternate diagnosis such as lung cancer co-existing with the diagnosis of leiomyosarcoma.
In a report dated 4 April 2002 (Exhibit R6) Professor R. Fox, Director, Department of Clinical Haematology and Medical Oncology, The Royal Melbourne Hospital, stated that a biopsy of the liver lesion was reviewed by a specialist who concurred with the diagnosis of leiomyosarcoma. He said that while no specific primary site was found or was unequivocally determinable, the assumption was that it came from the retroperitoneum. Professor Fox said that the veteran did not have a primary malignant tumour of the lung.
In a report dated 24 April 2002 (Exhibit R8) Professor J. Cade, Director of Intensive Care, The Royal Melbourne Hospital, stated that the veteran undoubtedly died from advanced metastatic cancer (leiomyosarcoma) and its complications. He agreed with Dr Collins that a biopsy of only one site was carried out and the primary site was not identified, but he said that the mechanism of death was the liver involvement. Professor Cade said that Dr Collins had agreed that it was not unreasonable to consider all the lesions to be due to the same cancer. Professor Cade also stated that:
… the exact site of the primary lesion would seem not to matter, in that the Statement of Principles for soft tissue sarcoma would permit 'a course of therapeutic radiation' as the only service-related factor potentially applicable for this type of tumour and clearly this factor could not have applied in this patient.
Professor Cade said that there was no link that he could identify which might suggest a potential relationship between service and the death of the veteran.
Associate Professor J. McCarthy, Visiting Fellow, Australian Defence Force Academy, gave evidence and confirmed the contents of his reports dated 12 August 1998 and 27 November 2001. He told the Tribunal that the MV Koolinda was a standard commercial/cargo vessel that in 1943 was used by the Western Australian Government in the evacuation of women and children from New Guinea and Darwin. He noted that the veteran was a passenger from Fremantle to Broome where he was to join the 326 Radar Station at Cape Leveque.
On the question of whether the MV Koolinda was in the presence of enemy submarines in August/ September 1943, Professor McCarthy stated that submarines were operating in the Indian Ocean during 1943, but it is most unlikely that the Western Australian coast would have been approached in August/September 1943. He concluded that the MV Koolinda was not threatened by attack from such craft in this period. The Tribunal was told that research indicates that the veteran was in Perth when Broome was attacked on 16 August 1943 by Japanese aircraft. He was at Cape Leveque when Onslow was attacked on 15 September 1943. However, Broome is 2237 kilometres from Perth and Cape Leveque is more than 1000 kilometres from Onslow.
On this basis Professor McCarthy concluded that there was no evidence that the veteran would have been placed in any danger from enemy forces during the sea voyage. He added that there was no evidence that, as a military passenger, the veteran was called upon to perform watch or guard duties on the vessel. In cross-examination Professor McCarthy stated that his research showed that on the relevant journey there was little danger to the vessel from mines.
CONSIDERATION OF THE ISSUESMr De Marchi submitted that the period of the journey by the veteran from Fremantle to Broome from 26 August 1943 to 31 August 1943 on the MV Koolinda was operational service for the purposes of s6A of the Act. He referred the Tribunal to McKeown v Repatriation Commission (1995) 39 ALD 30 in which Jenkinson J stated, at p.33:
… In my opinion there was evidence before the tribunal to justify a finding that, during each of the periods on board ship, when watch was kept for mines, submarines and enemy aircraft, and guns were manned, by the members of Mr McKeown's unit, the members of that unit were engaging in conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive. To watch for an enemy whose imminent presence is reasonably thought likely, with a view to encountering, or combating, that enemy either offensively or defensively, is to engage in an activity directly intended for an encounter with the enemy.
Mr De Marchi said that, on the balance of probabilities, the veteran and members of his unit would have been performing similar duties on the MV Koolinda. He said that the voyage could be considered hazardous because the voyage was during a period of World War 2 when the eventual outcome could not be envisaged. He also stated that there was a degree of enemy activity in parts of Australia, and that the 2000 kilometre voyage was potentially dangerous.
On the question of the cause of death, Mr De Marchi submitted that the Tribunal should accept Dr Collins's evidence, that there were metastatic malignancies in parts of the veteran's body such as the lungs, and that lung cancer co-existed with leiomyocarcoma. For this reason he said that the evidence given by the applicant regarding the smoking habits of the veteran suggests that the smoking factors in the Statement of Principles (SoPs) for malignant neoplasm of the lungs and liver have been met, and the death should be accepted as service-related.
Mr Purcell submitted that the period of the voyage was not operational service. He referred the Tribunal to Repatriation Commission v Kohn (1989) 87 ALR 511 in which Hill J stated at p524:
…
It seems to me that to give effect to what I believe to be the legislative policy behind the current legislation and indeed the policy which the foregoing analysis of the history of the legislation indicates was behind all previous manifestations of it, an interpretation of s 6(1)(a) should be advanced which would exclude mere transitory passages outside Australia from the definition of "operational service" in s 6(1)(a).
At p 525 Hill J said:
…
However, where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia.
Mr Purcell also referred to Proctor v Repatriation Commission (1999) 54 ALD 343, Ahrenfeld v Repatriation Commission (1990) 22 ALD 416 and Repatriation Commission v Ahrenfeld (1991) 23 ALD 181 and said that the Federal Court has held that the expression service in actual combat against the enemy specified in s6A of the Act should be determined on the facts of the particular case.
Mr Purcell said that the veteran had been a passenger on the MV Koolinda and there was no evidence to refute the research by Professor McCarthy that suggested the veteran took no part in watch or guard duties while on the vessel. He said that the evidence from Professor McCarthy also showed that there was no objective threat to the vessel from enemy aircraft or submarines at that time. He urged the Tribunal to apply the test as set out in Kohn and find that the voyage did not constitute operational service.
On the question of the cause of death, Mr Purcell submitted that the medical evidence was clear that the diagnosis of leiomyosarcoma was correct. He said that the report from Dr Collins attempted to inject doubt into the diagnosis by suggesting that lung cancer could not be excluded specifically because a biopsy of the lung had not been performed. Mr Purcell submitted that, if the Tribunal accepts leiomyosarcoma as the cause of death, then the appropriate SoPs are Nº 50 of 1998 and Nº 24 of 2001 concerning soft tissue sarcoma, and that smoking is not a factor listed in the SoPs. He stated that, in any event, there was no reliable evidence of the date or circumstances in which the veteran commenced smoking, the quantity of cigarettes consumed or the nexus with his service in the air force.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing. With regard to the voyage, the Tribunal accepts Professor McCarthy's evidence that, during the relevant period, the veteran had been a passenger on the MV Koolinda with other members of his unit for the purpose of establishing a radar station at Cape Leveque, and that he was unlikely to have taken part in watch or guard duties while on the vessel. The Tribunal also accepts Professor McCarthy's evidence that there was no objective threat to the vessel from enemy aircraft, submarines, mines or personnel at that time. In applying the test as set out in Kohn, the Tribunal finds that during the voyage the veteran did not engage in service in actual combat against the enemy. So he did not render operational service for the purpose of the Act. Therefore, under s120(4) of the Act the Tribunal must determine the matter to its reasonable satisfaction.
With regard to the cause of death, the Tribunal agrees that the reservations expressed by Dr Collins show that certainty of diagnosis in this case might not be possible. However, the Tribunal is reasonably satisfied that the treating medical practitioners and other specialists have reached conclusions that are soundly based and reasonable. The Tribunal accepts the evidence of Dr Ronan, Professor Fox and Professor Cade and finds that the cause of the veteran's death was leiomyosarcoma.
The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a death, disease or injury to war service is laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. In respect of the first step the Tribunal finds that the material points to a hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. In view of the Tribunal's findings in respect of the cause of death, the relevant SoPs are Nº 50 of 1998 and Nº 24 of 2001 concerning soft tissue sarcoma. Therefore, SoPs concerning malignant neoplasm of the lung are not relevant.
Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits within, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.
The Tribunal notes that in East v Repatriation Commission (1987) 16 FCR 517, the Full Federal Court stated at p 533:
… A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
The Tribunal agrees with Mr Purcell that in this case the raised facts fall short of fitting the template. There is no evidence that the veteran satisfied any of the factors listed in paragraph 5 of the relevant SoPs, particularly as smoking is not a factor. For these reasons the Tribunal is not reasonably satisfied that the applicant satisfies the third step in the Deledio process. Therefore, the applicant cannot succeed and there is no need to consider the fourth step. As a result, the Tribunal finds that the death of the veteran was not war-caused within the meaning of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member(sgd) Catherine Thomas
ClerkDate of hearing: 16 July 2002
Date of decision: 8 August 2002
Advocate for applicant: Mr D. De Marchi, De Marchi & Associates
Counsel for respondent: Mr G.Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans' Affairs
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