Scully and Repatriation Commission
[2005] AATA 1046
•20 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1046
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/53
VETERANS’ APPEALS DIVISION
Re: FRANCES MARY SCULLY
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 20 October 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
VETERANS’ ENTITLEMENTS ‑ widow’s pension ‑ veteran with multiple disabilities ‑ kind of death ‑ whether war-caused disease significant factor ‑ decision affirmed
Veterans’ Entitlements Act 1986 ss8(1), 120, 120A
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Bendy (1989) 18 ALD 144
Doolette v Repatriation Commission (1990) 21 ALD 489
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bennett v Repatriation Commission (1997) 45 ALD 491
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Bey (1997) 79 FCR 364
Roscoe v Repatriation Commission [2003] FCA 1568
Suckling v Repatriation Commission [2004] FMCA 247
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Spencer v Repatriation Commission (2002) FCR 453
Repatriation Commission v Hancock (2003) 37 AAR 383
REASONS FOR DECISION
20 October 2005 Regina Perton, Member
1. Maurice Joseph Scully died on 17 June 2001, after more than 60 years of marriage to Frances Mary Scully. He was 88 years old. Mr Scully served in the Australian army from 26 June 1940 to 20 April 1942. The entire period is treated as operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
2. Mr Scully suffered from multiple medical conditions and was receiving a disability pension at 100 per cent of the general rate at the time of his death. Several of his conditions were accepted as war-caused: namely bilateral otitis media, functional diarrhoea, acute appendicitis with operation, gastritis, chronic bronchitis and emphysema, chronic solar skin damage and gastro-oesophageal reflux disease. Other disabilities were not accepted as war-caused. These were deflected nasal septum, chronic antritis (right and left), left inguinal hernia, dental caries and gingivitis and irritable bowel syndrome. Mr Scully suffered from further medical conditions for which he had not lodged claims including bronchiectasis, pulmonary embolism and obstructive sleep apnoea. In his later years, Mr Scully also suffered from Alzheimer’s disease.
3. Mr Scully had a serious fall about 10 days before he died, resulting in a subdural haematoma. He was taken to hospital a few days after that fall. The treating doctors decided not to operate on him to relieve the subdural haematoma. He returned to his nursing home and died there a few days later. The death certificate states that the cause of death and duration of illness was subdural hematoma – 10 days.
4. Mrs Scully believes that her late husband’s death was due to some of his war-caused conditions for which the Commission has accepted liability. In particular, she submits that his chronic bronchitis and emphysema contributed to his fall and to the pneumonia from which he suffered at the time of his death. She also submits that had Mr Scully not been suffering from chronic bronchitis and emphysema, he would have been strong enough to undergo surgery to drain the subdural hematoma, which may have prolonged his life. The Repatriation Commission argues that the fall was not due to those respiratory illnesses but rather was the result of Mr Scully’s Alzheimer’s disease and apraxia, which are conditions unrelated to his war service. The Commission also submits that decisions about the nature of the treatment for the subdural haematoma were not made on the basis of his war‑caused respiratory illnesses.
5. The Commission’s decision on 17 October 2001 to refuse Mrs Scully’s claim for a War Widow’s Pension was affirmed by the Veteran’s Review Board on 18 November 2003. An application for review was lodged with this Tribunal on 20 January 2004.
6. In considering whether Mrs Scully is eligible for a War Widow’s Pension, the Tribunal has to decide whether Mr Scully’s death was war‑caused.
EVIDENCE
Mrs Scully
7. Mrs Scully described the many medical problems her late husband had experienced. She indicated that in his later years, Mr Scully’s emphysema was quite pronounced and left him weak. Minor exertion made him very tired. She and Mr Scully moved to a hostel in July 1999 because of his health. By that time, he was developing dementia and experiencing blackouts and breathlessness. He had frequent falls. She attributed his frequent falls to blackouts but also believes that his weakness from airways disease contributed to the falls. Mr and Mrs Scully lived together in the hostel until four months before Mr Scully’s death, when he was transferred to a nursing home due to his deteriorating health. At that time, he was suffering from advanced Alzheimer’s disease, and frequent blackouts. His respiratory problems were severe and prevented him from walking to the hostel’s dining room, even with a walking frame.
8. While he lived at the hostel, Mr Scully was treated by Dr J. Pattison, the general practitioner who had been his doctor since the 1980s. Dr M. Hobart took over when Mr Scully moved to the nursing home. Mrs Scully said she was aware of a report by Dr Hobart that indicated that Mr Scully’s fall was due to apraxia and Alzheimer’s disease. However, her belief is that his respiratory problems made a contribution to the fall.
9. Mrs Scully believes that treatment for the subdural haematoma was not made available because of the state of Mr Scully’s lungs. Consequently, her view is that his death was caused by the war-caused respiratory condition, either on the basis that it contributed to his fall or because the state of his lungs deprived him of treatment he would otherwise have received. Mrs Scully was at Mr Scully’s bedside when he died. He had been in a coma for five days. Mrs Scully said that she noticed a solid substance being expelled by her husband which the nursing sister attributed to pneumonia. Her husband died a short time later. Mrs Scully believes that her late husband’s war-caused smoking habits contributed to the pneumonia which in turn played a part in his death.
10. During cross-examination, Mr Purcell referred Mrs Scully to a record dated 12 June 2001 prepared by Dr Niprovski of the Austin and Repatriation Medical Centre (the Austin)(Exhibit R9, p158-159). Mrs Scully confirmed the history contained in those notes. She said that Mr Scully was unconscious after the fall on 7 June 2001. He had had several previous falls. He had been unsteady on his feet for the 2 days before admission to the Austin and was no longer recognising family and friends. Mrs Scully said that one of her daughters, and her son, Anthony, had been with her at the hospital. She could not recall the doctor explaining why the decision was made not to operate. However, she was adamant that the family had not agreed that if Mr Scully suffered a cardio‑respiratory arrest, that he not be resuscitated. She agreed that her husband had become a heavy smoker in the army but stopped smoking in the mid-1960s. Mrs Scully confirmed that her husband had been coughing up sputum for the last few years of his life. She could not recall the medication he was taking for his other conditions.
Anthony Scully
11. Anthony Scully is the youngest of Mr and Mrs Scully’s nine children. He is a 43 year old fire‑fighter. Anthony said that he was not at the Austin Hospital when the doctors discussed his father’s condition with his mother. His sister was there with their mother. He arrived a little later. His father had a lung condition for which he took medication throughout Anthony’s life. His father was very sick when he moved to the nursing home. He was aware of his father having many falls, as he saw many bruises and cuts on him over his last few years. His father was also having cognitive problems at the nursing home and needed assistance to manage his bodily functions.
Dr Hobart
12. Dr Mark Hobart has been a general practitioner for 20 years. He became Mr Scully’s doctor when Mr Scully moved to the nursing home in early 2001, some four months before his death. His first consultation with Mr Scully was on 23 February 2001. Dr Hobart signed Mr Scully’s death certificate on which the cause of death was described as subdural haematoma. On 20 August 2003, Dr Hobart provided a report to Melbourne Legacy concerning Mr Scully (T12, p53), in which he stated:
…
Mr Scully had several falls at the nursing home. In my opinion this was due to an apraxic gait and Alzheimer’s disease.
Five days or so prior to his death he had a heavy fall in which he hit his head against a wash basin. His conscious state deteriorated over the next three days and he was transferred to St Vincent’s Hospital [clarified in oral evidence as being the Austin Hospital] where a sub-dural haematoma was diagnosed. He was however deemed unfit for surgery to drain the haematoma, so he was transferred back to the nursing home and died two days or so later.
It is possible that one of the reasons he was deemed unfit for surgery was because he had chronic bronchitis and emphysema. If he had been fit for surgery and had the haematoma drained he may have recovered.
13. Mr G. Chancellor, representing Mrs Scully, brought to Dr Hobart’s attention a medical report from St Vincent’s Hospital indicating that Mr Scully was hospitalised for pneumonia in January 2001. In response to questions about the relationship of chronic bronchitis and emphysema to pneumonia, Dr Hobart stated that a person with chronic bronchitis and emphysema can be more susceptible to pneumonia than a non-sufferer due to an inability to release sputum effectively. Dr Hobart said that he had seen Mr Scully on his return to the nursing home prior to his death. He could not recall if there was any evidence of pneumonia on those visits.
14. Dr Hobart’s attention was drawn to the Austin’s Patient Management Plan prepared by Dr Niprovski on 12 June 2001 (Exhibit R9, p167). Dr Niprovski recorded that Mr Scully’s wife and daughter agreed that in the event of a cardiac arrest, he should not be resuscitated. The reasons for the decision to withhold resuscitation, should it be required, were given as advanced dementia, multiple medical problems and poor prognosis. Dr Hobart said surgery could also have worsened his lung condition.
15. On cross-examination, Dr Hobart confirmed that it was possible that Mr Scully suffered from terminal pneumonia just prior to death. However, Dr Hobart did not disagree with Mr Purcell, counsel for the Repatriation Commission, that pneumonia could have been brought on by the coma, rather than being the cause of death. He also agreed that medical records showed Mr Scully suffered from a number of other conditions which could have contributed to the decision not to operate due to the poor state of Mr Scully’s health. He conceded that he did not have Mr Scully’s full history when he wrote the letter of 20 August 2003 in which he suggested that chronic bronchitis and emphysema may have been one of the reasons for not operating on Mr Scully.
16. On re-examination, Dr Hobart said that there would have been many reasons why a decision would have been made not to operate. He said that the decision‑maker would have had to weigh up the risks and benefits. He stated that the risks included his dementia, advanced age, heart and respiratory conditions including chronic bronchitis and emphysema.
Dr Collins
17. Dr R. B Collins, a consultant forensic pathologist, provided three reports (Exhibits A2-A4). In his first report dated 27 May 2004 (Exhibit A2), Dr Collins commented:
…
1.Whilst I agree with the cause of death as stated on the Death Certificate prepared by Dr Hobart, it is obvious that it is incomplete in that it should have contained a number of the well documented disease conditions from which the late veteran suffered, namely Alzheimers disease, chronic bronchitis/emphysema, pacemaker for first degree heart block and, in the immediate few days prior to his demise on 17th June , 2001 it is highly likely an acute chest infection was present, which could appropriately be described as the final/immediate cause of death.
2.A subdural haemorrhage is commonly traumatic in origin and the likely circumstances in which the late Mr Scully sustained such an injury or injuries are far from clear, as he experienced a number of falls in the nursing home between 7th and 12th June, 2001 when he was admitted to the Austin and Repatriation Hospital for treatment (not St Vincent’s Hospital)….
3.On admission to the Austin….on 12th June, 2001 he was found to have a decreased conscious state, with a Glasgow Coma Score of 8 (Emergency Nursing Assessment) and a CT scan of the head performed shortly there-after, showed “large bifrontal acute on chronic subdural collections with significant mass effect,” (report by Dr I. Clare, Austin Campus). Such space occupying intracranial lesions would generally be treated by emergency surgery to reduce the size of the blood clot(s) and, hopefully, minimizing the secondary effects of raised intracranial pressure – the most serious of which is death.
No such potentially life-saving procedure was carried out in this case and the reasons given for the adoption of a conservative, rather than an aggressive, course of management are most unfortunately not specifically itemized in the A+RMC medical notes, although it would be reasonable to infer that it related to those which were listed by Dr Niproski…namely:‑
(i) advanced dementia,
(ii) multiple medial problems,
(iii) poor prognosis.
4.Dr Mark Hobart in his letter dated 20th August, 2003 not unreasonably, in my view, raises the hypothesis that one of the reasons the late veteran was classified as unfit for surgery was because of his well established chronic obstructive airways disease. Such a hypothesis would be entirely consistent with 3(ii) above.
If this hypothesis were accepted, then this disease condition is a significant contributory factor to the late veteran’s death, in that by its presence the appropriate course of surgical treatment for the subdural haematomata was fettered.
In addition, it could be argued that the development of an acute chest infection following the later [sic] Mr Scully’s readmission to the nursing home was rendered more likely in view of his pre-existing chronic lung disease…
18. Dr Collins’ second report dated 20 July 2004 (Exhibit A3) followed a report prepared by Professor J. Cade (referred to later). Dr Collins stated that he concurred with Professor Cade that the death certificate was incomplete; it was a reportable death; and appropriate treatment for acute subdural haemorrhage was not followed. Dr Collins accepted that, in isolation, the presence of chronic bronchitis and emphysema would be an unusual contra-indication for surgical intervention of a potentially life-threatening condition. He did not agree with Professor Cade’s view that Mr Scully’s chronic obstructive airways disease was mild.
19. Dr Collins’ third report dated 22 October 2004 (Exhibit A4) followed the provision of further information by Dr Hobart. Dr Hobart had informed Mrs Scully’s solicitors that he could not provide any information beyond that in his report of 20 August 2003. He noted Dr Hobart’s comments that bronchitis and emphysema were not prominent diseases in the late Mr Scully and that Dr Hobart had not personally been advised of the contra indications for the operation. Dr Collins went on to state:
…
In my opinion, whilst there is a reasonable hypothesis that the late veteran’s chronic obstructive lung disease was one of the medical factors which contraindicated surgical treatment of his subdural haemorrhage, it is apparent that Dr. Hobart is unable to add clinical weight to it through his first-hand knowledge of the patient.
This inability somewhat weakens the widow’s claim, although does not necessarily negate it…
20. In his oral evidence, Dr Collins said that a number of conditions should have been included in the death certificate, including Alzheimer’s disease and acute pneumonia. He said that the lungs of a person who suffers from chronic bronchitis and emphysema do not have the defence mechanisms of a non‑sufferer. He said that because of the level of sputum there is an increased likelihood of infection developing. He indicated that the surgeon and the anaesthetist would have been involved in the decision as to whether to operate on the subdural haematoma, taking into account the benefits and risks as well as the quality of life that would be available to Mr Scully. He stated that Alzheimers disease, lung problems, ischaemic heart disease and pacemaker would all have been likely to have been taken into account.
21. Under cross-examination, Dr Collins said that it was his view that the fall was likely to have been due to Mr Scully’s dementia, rather than his chronic bronchitis and emphysema. He said that the failure by the doctors at the Austin to mention chronic bronchitis and emphysema did not mean that it was not taken into account in deciding whether to operate. He did not agree with Mr Purcell’s contention that chronic bronchitis and emphysema would have been low in the order of conditions that militated against the operation. Dr Collins agreed that, on the balance of probabilities, he could not say that Mr Scully’s chronic bronchitis and emphysema had caused his death. He pointed out that he had not suggested it was a factor in the death; rather that it was a factor in deciding whether to operate.
Professor Cade
22. Professor Cade, Director of Intensive Care at The Royal Melbourne Hospital, provided two reports (Exhibits R3 and R4). In his first report dated 29 June 2004 Professor Cade provides a detailed medical history of Mr Scully. He then goes on to state, among other things:
…
The cause of death was undoubtedly as listed on the death certificate. This is because large subdural haematomas had been objectively shown on CT scan and without treatment these would be expected to be both inevitably and imminently fatal.
In turn, the cause of the subdural haematomas was a fall (or falls).
In turn, falls were documented to have been frequent during the last months of life and were most likely to have been due to the documented advanced neurological deterioration which was a manifestation of his severe and progressive dementia.
3. What other conditions were present at death but did not contribute to death?
Many other conditions had been recorded during the last years of life, and those major conditions present at death would have included ischaemic heart disease (with pacemaker), bronchiectasis, chronic obstructive lung disease, obstructive sleep apnoea, and gastro-oesophageal reflux disease. In addition, he had many less serious conditions, including irritable bowel syndrome, osteoarthritis, cataract, deafness, dental caries, and solar skin damage.
With the exception of the two lung conditions (bronchiectasis and chronic bronchitis and emphysema)….I do not believe that there is any evidence in the available documentation to suggest that any of these conditions may have contributed to death either on the balance of probabilities or even as a reasonable hypothesis. Moreover, there is not even any apparent mechanism by which they could do so in this case.
4. Can any of the conditions contributing to death be related to service?
The conditions directly contributing to death were in sequence dementia, which caused falls, which caused subdural haematomas, which caused death. The underlying condition, namely veteran’s dementia, cannot be related to service by any linkage I can think of. In turn, there were no other plausible causes of either the falls or the subsequent haematomas. Thus, death cannot be related to service by any of the known conditions which contributed to death...
23. Professor Cade asserts that he cannot think of a reasonable hypothesis linking any of Mr Scully’s other medical conditions to his death. He also dismisses outright the notion that chronic bronchitis and emphysema might have caused the fall. He suggests that it would be unusual for a patient not to have neurosurgical treatment because that person was suffering from chronic bronchitis and emphysema. However, he says, it would be appropriate for a patient with advanced dementia as in this case not to have neurosurgical treatment. He states that it is highly unlikely that chronic bronchitis and emphysema prevented treatment of the subdural haematoma, but that it is not impossible that its diagnosis may have contributed in a minor way.
24. Professor Cade points out that while Mr Scully had several well-documented respiratory conditions, namely pulmonary embolism (in 1991), bronchiectasis, obstructive sleep apnoea and chronic obstructive lung disease (chronic bronchitis and emphysema), there are no respiratory features noted in the medical records of his last weeks, apart from pneumonia on the day before he died. Prof Cade then made the following comments about pneumonia:
…
Thus, the issue is firstly, whether any of the pre-existing respiratory conditions caused or contributed to the pneumonia, and secondly, whether the pneumonia in fact contributed to death.
·Firstly, both bronchiectasis and chronic bronchitis & emphysema can predispose to acute chest infections. However, specialist thoracic opinion between 1991& 1997 indicated that his bronchiectasis was the likely cause of his chronic cough and sputum. Thus, by implication, bronchiectasis was the dominant respiratory condition and would have been the chief cause of any proneness to acute infective exacerbations.
·Secondly, the pneumonia occurred in a patient who was already comatose and rapidly dying from an untreatable brain condition…
Furthermore, pneumonia is a common (some would say invariable) terminal event or mechanism of death in patients dying from a variety of advanced diseases, especially those diseases with a major neurological component.
25. In his report of 5 November 2004 (Exhibit R4), Professor Cade looked in more detail at Mr Scully’s chronic bronchitis and emphysema, which were found to be service‑related. He provided a list of thirty examinations that had been conducted on Mr Scully between 13 December 1988 and 12 June 2001. He then gave his view on the severity of the condition, which differed from that of Dr Collins. He also gave a further view on its contribution on the decision not to operate:
…serial chest examinations (clinically, radiologically & physiologically) confirm a diagnosis on balance of mild chronic airways obstruction. The four instances selected by Dr Collins from the 30 available suggest a somewhat more advanced process, but two of these assessments were made clinically by junior residents and two (in 1988 & 1996) suggested radiological hyperinflation. All other assessments, including most importantly those by respiratory specialists, those by inpatient teams and those in the last four years of life, indicated a mild degree of disease.
2. The contribution of the patient’s chronic obstructive airways disease to the neurosurgical decision not to operate on his subdural haematomas
The chest findings on admission to the Emergency Department at ARMC on 12 June 2001 were….
· chest clinically clear,
· SaO2 94-96% on room air,
· chest X-ray small effusion, no significant lung pathology on either side.
I know of no emergency surgical procedure which would be contraindicated on the basis of such respiratory findings.
In conclusion, it would appear to me that death cannot be linked with service via respiratory disease in this case, either on the basis of probability or even on the basis of a plausible hypothesis.
26. In his oral evidence, Professor Cade said that life-saving surgery, even in older patients, was cancelled or deferred only in severe situations. He said that chronic bronchitis and emphysema would be highly unlikely to be a factor in a decision not to operate on a subdural haematoma.
27. Under cross-examination, Professor Cade said that the breathlessness that Mr Scully suffered would have been the result of a combination of the many diseases from which he suffered. He said that difficulty in walking and breathlessness are not necessarily related, unless it was during an asthma attack or the like. Professor Cade said that while he accepted the evidence from Mrs Scully and her son, about Mr Scully’s weakness, this would not have been due to his respiratory diseases, as they do not cause the type of weakness described. He stated that the doctors at the Austin had extensive medical records for Mr Scully and would have taken all of his conditions into account. He said that given the absence of notes as to all the factors taken into account in the decision not to operate, he could not rule out completely that the chronic bronchitis and emphysema were not a factor. But he repeated that it was unlikely that this was a significant factor. He concurred with Dr Collins’ view that conditions other than the subdural haematoma should have been on the death certificate. He also stated that it was highly unlikely, but not impossible, that Mr Scully’s chronic bronchitis and emphysema contributed to his succumbing to terminal pneumonia, if he in fact suffered from that. He added that terminal pneumonia will occur with or without lung disease. He said that chronic bronchitis and emphysema may affect the timing of the appearance of terminal pneumonia, but not its actual onset.
CONSIDERATION OF ISSUES
28. Section 8(1) of the Act provides:
8(1) Subject to this section, 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…
29. Sections 120(1) and 120(3) of the Act are relevant to the determination as to whether the death of a veteran was war-caused. Section 120(1) of the Act provides that the veteran’s death will be war‑caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal will be so satisfied if, after consideration of all the material before it, the Tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.
30. The provisions for dealing with the standard of proof in claims made after 1994 are to be found in s 120A of the Act. It provides:
120A(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2)…
31. The principles to be applied in cases where s 120A of the Act applies were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process:
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.
32. The parties agreed that Mr Scully suffered from chronic bronchitis and emphysema due to smoking, and that these conditions were war-caused.
33. Mr Chancellor submitted that Mr Scully’s condition of chronic bronchitis and emphysema led to breathlessness and weakness which in turn contributed to the fall and the subdural haematoma. He conceded that the only support for that hypothesis is the evidence from Mrs Scully and her son. Mr Chancellor acknowledged that none of the doctors supported that view.
34. Mr Chancellor submitted that the chronic bronchitis and emphysema were part of Mr Scully’s overall medical condition that led to the decision not to surgically treat the subdural haematoma, which in turn led to Mr Scully’s death. In support, he pointed to the letter from Dr Hobart dated 20 August 2003 (see paragraph 12) in which Dr Hobart stated “it was possible” that one of the reasons that Mr Scully was unfit for surgery was his chronic bronchitis and emphysema. Mr Chancellor also pointed to the comments of Dr Collins in his reports. He noted that Dr Niprovski at the Austin Hospital had given three reasons for the decision not to operate, namely Mr Scully’s poor prognosis, his many medical conditions and his advanced dementia. Mr Chancellor submitted that the many medical conditions included Mr Scully’s chronic bronchitis and emphysema. He submitted that it was not necessary to show that the chronic bronchitis and emphysema was the dominant or primary cause; only that it was a cause of to which death was attributable. Mr Chancellor cited Repatriation Commission v Law (1980) 31 ALR 140, in which the Full Court stated at page 151:
…
It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause…
35. Mr Chancellor cited Repatriation Commission v Bendy (1989) 18 ALD 144, in which the High Court stated that the condition must make a material contribution to the death and that a de minimus contribution is to be ignored. He submitted that while the chronic bronchitis and emphysema were not the dominant factor in the decision not to operate on Mr Scully, those conditions were more than a de minimus contributing factor. He submitted that if the operation had taken place, there was some prospect of improvement in Mr Scully’s condition.
36. Mr Chancellor’s submitted, as a third hypothesis, that Mr Scully’s chronic bronchitis and emphysema contributed to pneumonia which, in turn, contributed to the death. He pointed to the evidence of Dr Collins and Professor Cade that terminal pneumonia was “the last step in the chain”. He submitted that the chronic bronchitis and emphysema contributed to the timing of onset of the pneumonia. Mr Chancellor cited Doolette v Repatriation Commission (1990) 21 ALD 489 where O’Loughlin J held:
…[I]f death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war related condition, the proper conclusion would be that death was attributed to by war service…
37. Mr Chancellor cited Bushell v Repatriation Commission (1992) 175 CLR 408, Byrnes v Repatriation Commission (1993) 177 CLR 564, Repatriation Commission v Hancock (2003) 37 AAR 383 and Bennett v Repatriation Commission (1997) 45 ALD 491 as relevant to the Tribunal’s consideration of whether a reasonable hypothesis can be established in this matter. He submitted that an indirect link can still be a sufficient link in the chain linking a condition to war service.
38. Mr Chancellor submitted that both Dr Collins and Professor Cade were of the view that multiple medical problems, including chronic bronchitis and emphysema, should have been included on the death certificate.
39. In summary, Mr Chancellor submitted that a reasonable hypothesis exists that the chronic bronchitis and emphysema were significant in relation to the failure to carry out the surgery and in the acceleration of death as a result of pneumonia. He submitted that the Repatriation Commission had failed to prove beyond reasonable doubt that there is no sufficient ground for making the determination.
40. Mr Purcell submitted that Hancock’s case provided an appropriate template for decision making in this matter. He submitted that the Tribunal needed to establish the kind of death before it embarked on an examination of the various hypotheses. He cited Roscoe v Repatriation Commission [2003] FCA 1568 and Suckling v Repatriation Commission [2004] FMCA 247, which endorsed the need for the Tribunal to determine the kind of death to its reasonable satisfaction before considering possible hypotheses.
41. Mr Purcell stressed that there was no medical evidence linking the fall, and therefore the subdural haematoma, to Mr Scully’s chronic bronchitis and emphysema.
42. Mr Purcell pointed out that Mr Scully’s Alzheimer’s disease was one of the three factors nominated as crucial in the decision not to operate. He submitted that Mr Scully did not meet the Statement of Principles (SoP) for Alzheimer’s disease. As to whether the chronic bronchitis and emphysema were two of the many medical conditions which led to the decision not to operate, he pointed to the evidence of Professor Cade, that he knew of no emergency procedure that would be contra‑indicated on the basis of the respiratory condition suffered by Mr Scully. He also stated that in relation to both the multiple medical problems and poor prognosis, which were provided in the hospital’s records as two of the three reasons for not undertaking surgery, there is no evidence that the respiratory condition formed a significant part in the decision making in relation to either of those two broad grounds.
43. In relation to the hypothesis that the chronic airways disease caused pneumonia and chest infection which in turn was one of the caused of death, Mr Purcell submitted that the quote in Doolette, cited by Mr Chancellor concerning hastening of death needed to be viewed in context. He submitted that the test in Doolette is not simply the expediting of the terminal event of death. Rather, the test is whether the death is hastened because of the accelerated progress of the disease, which acceleration was itself caused by a war-related condition.
44. Applying that test in this case, Mr Purcell submitted that for the hypothesis to be upheld, it would be necessary to show that the death was hastened because of an accelerated progress of the respiratory condition, not just its presence. He pointed to Professor Cade’s evidence that pneumonia arose in a patient who was already comatose and rapidly dying from an untreatable brain injury. Mr Purcell also cited a passage from Professor Cade’s first report indicating that pneumonia is a common mechanism of death in patients dying from a variety of advanced diseases, especially those diseases with a major neurological component. Mr Purcell submitted that the hypothesis fails because of the circumstances in which pneumonia came about and the near inevitability of that illness being the terminal event in many deaths.
45. Mr Chancellor conceded that while the respiratory condition by itself may not have constituted a major reason not to operate, it may have been one of six conditions, each independently not being enough to contra-indicate surgery, but which when combined as a whole did so. He submitted that each of them could therefore be said to be a contributing factor to surgery not taking place. In relation to Doolette’s case, Mr Chancellor said that his proposition was that the pneumonia was accelerated by Mr Scully’s weakened lungs due to a range of conditions including the chronic bronchitis and emphysema.
46. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing.
47. In Repatriation Commission v Hancock (2003) 37 AAR 383 Selway J set out the correct approach as follows at page 386:
(a)First, the [Tribunal] was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out…
(b)Next, the [Tribunal] was required to determine on balance of probabilities what 'kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all statement of principles and/or determinations under s 180A(2) of the Act and any other 'kinds of death' which were applicable to that death.
(c)If one or more statement of principles were applicable, then the methodology in Deledio is applicable in relation to those “kinds of death”.
(d)If only a determination under s 180A(2) is applicable, then the application must fail.
(e)If no statement of principles and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that.
48. In following the approach laid down in Hancock, the Tribunal finds that the pre-conditions, other than causation, have been made out because Mrs Scully’s husband was a veteran, the veteran had died and Mrs Scully is his widow.
49. In relation to a determination, to the Tribunal’s reasonable satisfaction (s 120(4) of the Act), of the kind of death suffered by the veteran (step (b)), the Tribunal notes that only one cause of death is given on the death certificate signed by Dr Hobart in June 2001, namely, subdural haematoma. It has not been disputed that Mr Scully’s fall, about 10 days before his death, is the event that resulted in the subdural haematoma. More than two years after Mr Scully’s death, Dr Hobart gave the opinion that the falls were due to an apraxic gait and Alzheimer’s disease. He commented that it was possible that one of the reasons that he was deemed unfit for surgery was because of his chronic bronchitis and emphysema and that if he had been fit for surgery and it was undertaken, he may have recovered. In his oral evidence Dr Hobart could not recall if there was any evidence of pneumonia when he visited Mr Scully after his return from hospital to his nursing home prior to his death. He also conceded that he did not have Mr Scully’s complete medical history when he wrote the letter in August 2003.
50. Dr Collins, in his first report dated 27 May 2004, put the view that other conditions including Alzheimer’s disease, chronic bronchitis and emphysema and a pacemaker for first degree heart block should have been included as causes of death in the death certificate. He also speculated that it was highly likely that an acute chest infection was present which could appropriately be described as the final/immediate cause of death. Dr Collins endorsed Dr Hobart’s comments in his August 2003 report in relation to Mr Scully’s chronic obstructive airways disease being a possible reason for not undertaking surgery.
51. In his third report, Dr Collins conceded that there was not strong evidence to support this stance given Dr Hobart’s inability to provide medical evidence on this point. He also noted Dr Hobart’s comments that bronchitis and emphysema were not prominent diseases in Mr Scully prior to his death. In his oral evidence, Dr Collins suggested that Alzheimer’s disease and acute pneumonia should have been included in the death certificate. Dr Collins did not support the suggestion that the fall was due to the chronic bronchitis and emphysema being of the view that it was likely to have been due to Mr Scully’s dementia. He also stated that the chronic bronchitis and emphysema were not the cause of death, but rather a factor in deciding whether to operate.
52. Professor Cade, in his first report dated 29 June 2004, stated that the cause of death was undoubtedly as listed on the death certificate, namely subdural haematoma. He also stated that the frequent documented falls of Mr Scully in the last months before his death were most likely to have been a manifestation of his severe and progressive dementia. He also indicated that while pneumonia may have been noted on the last day, it was not a mechanism of death. Based on his analysis of Mr Scully’s medical records, Professor Cade stated that his chronic bronchitis and emphysema were of a relatively mild degree and not sufficient to prevent a life-saving operation.
53. In relation to the pneumonia that has been cited as a possible cause or accompaniment of death, the Tribunal notes Dr Hobart’s comments that he could not recall if Mr Scully was suffering from pneumonia in his last days. The only reference that Professor Cade, or the Tribunal could find, to pneumonia in the notes was in the progress notes kept by the nursing home. On 17 June 2001, the day before Mr Scully’s death, a staff member had written that he appears to have pneumonia. In the notes for the preceding few days, it is clear that palliative care is being offered to Mr Scully and that his family members are visiting for last good-byes but there is no other reference to pneumonia.
54. Dr Collins speculated about pneumonia being a cause of death in his early report but his support waned by his last report. Professor Cade suggested that terminal pneumonia often accompanies death in cases such as those of Mr Scully but are not the cause of the death. However, the Tribunal is not satisfied that pneumonia was a cause of Mr Scully’s death. There is no actual medical diagnosis of pneumonia, the only suggestion of the possibility that he was suffering from pneumonia being in the notes of the nursing home. Dr Hobart who visited Mr Scully in the days before his death could not recall if he had that condition. The Tribunal would presume that if pneumonia had been an obvious condition, Dr Hobart would have noticed it and noted it in the medical records.
55. The Tribunal is not satisfied that chronic bronchitis and emphysema contributed to Mr Scully’s fall. None of the medical evidence supports that contention. The evidence is that his Alzheimer’s disease would have been a major factor in that and other falls he experienced at that time. The Tribunal finds that Alzheimer’s disease should be listed as one of the causes of death due to its link with the falls.
56. The Tribunal is also not satisfied that chronic bronchitis and emphysema were a factor in the decision not to perform surgery. The Tribunal prefers Professor Cade’s evidence to that of Dr Collins in making that assessment. Professor Cade’s comprehensive analysis of all the medical entries relating to treatment of respiratory ailments indicated that Mr Scully’s respiratory condition was mild and would not have contra-indicated surgery by itself. Dr Collins, on the other hand, provided selective information to support the argument that chronic bronchitis and emphysema was likely to have had a prominent role. Dr Hobart conceded that he wrote his supportive opinion without recourse to Mr Scully’s full medical history.
57. On the basis of the death certificate and relevant medical evidence, the Tribunal is reasonably satisfied that the kinds of death suffered by the veteran are Alzheimer’s disease and subdural haematoma. The Tribunal is not satisfied that chronic bronchitis and emphysema are relevant in the causal chain (Spencer v Repatriation Commission (2002) 118 FCR 453). Nor is the Tribunal satisfied that chronic bronchitis and emphysema were a factor in the veteran developing terminal pneumonia, or that this suggestion was anything other than speculation (Repatriation Commission v Bey (1997) 79 FCR 364).
58. As there is a SoP in force for Alzheimer’s disease, the Tribunal is required to apply the methodology in Deledio to the kind of death. The factors that must exist as before it can be said that a reasonable hypothesis has been raised connecting death from Alzheimer’s disease with the circumstances of relevant service are set out in Clause 5 of SoP N° 17 of 2001 concerning Alzheimer’s disease:
…
(a)suffering from a head injury at least 10 years or more before the clinical onset of Alzheimer’s disease; or
(b)inability to obtain appropriate clinical management for Alzheimer’s disease.
59. Step 3 in Deledio requires that an opinion be formed as to whether the hypothesis is reasonable. That is, whether there is material supporting or pointing to the hypothesis connecting the veteran’s death with the circumstances of the service rendered by him. If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable. In Repatriation Commission v Hill (2002) 69 ALD 581 the Full Federal Court stated at 596:
…
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…
Overall, there is no material or evidence pointing to the veteran meeting any of the relevant factors in the SoP concerning Alzheimer’s disease, and therefore the hypothesis is not consistent with the template and is deemed not to be a reasonable hypothesis.
60. There is no SoP in relation to subdural haematoma. There is no material before the Tribunal pointing to a hypothesis connecting Mr Scully’s death with the particular service he rendered. Mrs Scully’s application cannot succeed on the basis of that kind of death.
DECISION
61. The Tribunal affirms the decision under review.
I certify that the sixty‑one [61] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of Hearing: 24 January 2005 and 21 February 2005
Date of Decision: 20 October 2005
Counsel for the applicant: Mr G. Chancellor
Solicitor for the applicant: Williams Winter Solicitors
Counsel for the respondent: Mr G. Purcell
Solicitor for the respondent: Department of Veterans’ Affairs
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