Sergeant and Repatriation Commission
[2007] AATA 1150
•21 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1150
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/125
VETERANS’ APPEALS DIVISION ) Re JOYCE SERGEANT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P.M. McDermott, RFD
Date21 March 2007
PlaceBrisbane
Decision
The Tribunal sets aside the decision of the Veterans’ Review Board and decides that the death of the late Mr Charles Sergeant is war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986. I remit the matter to the Repatriation Commission for the calculation of pension and arrears of pension.
...........[Sgd]............
P McDermott
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – veteran served in RAAF –– cerebrovascular accident, heart disease and hypertension – Statement of Principles – death of veteran found to be war-cased – decision set aside
Veterans’ Entitlements Act 1986 (Cth) s 9, 13, 120, 120A, 196A, 196B
Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission (2003) 37 AAR 363
Marshall and Repatriation Commission [2003] AATA 350
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Gilbert v Repatriation Commission (1989) 86 ALR 713
East v Repatriation Commission (1987) 16 FCR 517REASONS FOR DECISION
21 March 2007 Senior Member PM McDermott
Introduction
1. Mrs Joyce Clara Sergeant was a dependent of the late Mr Charles Sergeant who served with the Royal Australian Air Force during World War II. She has applied for a war widow’s pension. In these proceedings I have to decide whether the death of the late Mr Charles Sergeant was related to his service.
Decisions
2. On 27 September 2004 the Repatriation Commission (“the Commission”) rejected a claim by Mrs Sergeant for a war widow’s pension on the ground that the death of the veteran was not related to his service.
3. Mrs Sergeant sought a review of this decision from the Veterans’ Review Board. On 22 November 2005 the Veterans’ Review Board affirmed this decision.
4. Mrs Sergeant has now applied to this Tribunal to review the decision of the Veterans’ Review Board which affirmed the decision of the Commission.
Issues before the Tribunal
5. These proceedings concern whether the death of the late Mr Charles Sergeant was “war-caused” within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (“the Act”).
6. These proceedings have also raised the issue of whether the late Mr Sergeant suffered from a diagnosable panic or anxiety disorder.
Service
7. The late Mr Sergeant rendered a period of service in the Royal Australian Air Force from 22 October 1943 to 5 June 1946. A record of his service was admitted in evidence before me [T4, folio 5]. It is important to mention that Mr Sergeant rendered operational service in Morotai from 7 April 1945 until late October 1945 as a radio operator.
Medical Evidence of Death of the Veteran
8. I have already mentioned that it is important for this Tribunal to determine the “kind of death” that is applicable to the veteran: see Repatriation Commission v Hancock [2003] FCA 711 at [16]-[17] per Selway J.
9. The death certificate records that Mr Sergeant died on 28 April 2004 at the age of 78 years. The death certificate records the causes of death as “1(a) ? Cerebrovascular accident with ? seizure (b) Hypertension (c) Epilepsy 2. Ischaemic heart disease, cerebral haemorrhage, transient ischaemic attack” [T4, folio 34].
10. In terminal illness notes dated 22 September 2004 [T4, fols. Z18-19] Dr Trevor Vincent, a general practitioner, has confirmed that over the past two decades, Mr Sergeant had “…multiple admissions for his recurrent fits, TIAs and CVAs”.
11. Dr Vincent confirms that in 1986 Mr Sergeant had an admission to the Royal Brisbane Hospital for a right occipital lobe haematoma due to a right cerebral artery haemorrhage which caused left visual field changes. Dr Vincent noted that Mr Sergeant had a fall 3 days earlier but it was not clear whether the fall was the cause of this incident. Dr Vincent has also commented that he had a history of multiple seizures which were possibly exacerbated by cerebral anoxia and conversely the seizures could have caused further cerebral ischaemic damage.
12. Having regard to the decision in Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373, I am required to determine the issue of diagnosis as a preliminary matter under the standard of proof mandated by s 120(4) of the Act before examining the issues arising under ss 120(1) and (3). In Repatriation Commission v Hancock [2003] FCA 711, Selway J explained, at [9], that “in order to ascertain whether a SoP applies it is necessary to identify the … ‘kind of death’ suffered by the veteran: see s 120A(2) and s 120A(4) of the Act”.
13. I was initially concerned that the death certificate expressed some uncertainty as to the cause of Mr Sergeant’s death. That may be explained by the fact that the medical attendant who certified the cause of death was a locum who did not regularly treat Mr Sergeant as a patient.
14. In view of the uncertainty which is expressed in the death certificate I have examined all of the material which is before me. I make the observation that there is no medical evidence that contradicts the cause of death expressed in the death certificate: Marshall and Repatriation Commission [2003] AATA 350.
15. Having regard to the terminal illness notes which have been prepared by Dr Trevor Vincent I am satisfied that cerebrovascular accident is indeed the cause of Mr Sergeant’s death. The fact that cerebral haemorrhage and transient ischaemic attack are also listed on the death certificate fortifies my conclusion as does the fact that Dr John Vincent on 23 November 1999 certified that Mr Sergeant had a “further CVA” on 3 December 1998 [exhibit A3].
16. I find, on the balance of probabilities, that a cerebrovascular accident was a main cause of the death of Mr Sergeant.
Evidence of Circumstances of the Veteran
17. Mrs Sergeant has made a number of statements which have been admitted into evidence: statement dated 12 December 2004 [T4, folio Z17]; statement dated 7 June 2006 [exhibit A4]; statement dated 13 March 2006 [exhibit A5].
18. In her statement of 13 March 2006 Mrs Sergeant stated that she first met the late Mr Sergeant in 1949 and that they married in 1951. She mentioned how he did not speak much of his war service although he mentioned that he experienced air raids and that he used to hear the bombs “coming up the island” whilst he was a radio operator in Morotai. Mr Sergeant had also mentioned to her that the wireless work that he was doing was stressful and that the “constant use of the headset could cause pain in his ears due to the loud volumes and the static which often affected the transmissions”.
19. In her statement of 13 March 2006 Mrs Sergeant has related how Mr Sergeant used salt in his diet and how he had acquired a liking for salt after salt tablets were issued to him during the war. Her statement concluded with an expression of her belief that his death is causally related to his war service.
20. In her statement of 7 June 2006 Mrs Sergeant has related how Mr Sergeant suffered from various health complaints. Predominant among them was panic and anxiety attacks. Mrs Sergeant remarks upon the fact that her husband would get agitated and experience a lot of stress. She thought that the panic attacks were brought on by the loss of his hearing. Dr John Vincent in a note of 23 November 1999 has indeed confirmed that the hearing loss had caused Mr Sergeant “considerable stress and anxiety.”
21. Mrs Sergeant has related how Mr Sergeant would also experience periods of sleeplessness. She mentioned how she would share a hot drink with him when he could not sleep.
22. Mr Graham Neil Sergeant is the son of the late Mr Charles Sergeant. His statement of 22 March 2006 was admitted into evidence [exhibit A6]. Mr Graham Sergeant mentioned how his father had told him of the “various stressors he endured whilst on overseas service.”
23. Mr Graham Sergeant discussed the air raids experienced by his father. He remarked
“My father had told me that he was involved in various air raids when he would hear the air raid sirens and he would have to take cover in the trenches immediately. He said that he could hear the anti aircraft guns firing upon the Japanese planes.”
24. Mr Graham Sergeant also remarked:
“My father told me that one of the most distressing incidents to him occurred when he saw a member of the Japanese army shot by an officer in his presence. My father thought that the Japanese man was a prisoner of war.”
25. Mr Graham Sergeant stated how his father had told him about the severe static that used to affect his headphones whilst he was on duty. He mentioned how his father always suffered from hearing problems and these became worse as he grew older. He remarked:
“The gradual loss of his hearing was a source of great anxiety and distress to my father and he became very upset because of this”.
26. Dr Trevor Vincent has stated that over the years Mr Sergeant had mood changes, panic attacks and anxiety and depression. Dr Vincent is of the opinion that the wartime experiences of Mr Sergeant had contributed to his psychological problems and his hearing loss and tinnitus.
Veteran’s Exposure to Operational Stress
27. It was part of the case of Mrs Sergeant that Mr Sergeant was exposed to stress during his operational service.
28. I make the initial observation that there is no reference in his Service Medical Record [exhibit R3] to Mr Sergeant having suffered stress effects at any stage during his Service. However I accept that this does not exclude the possibility that he experienced stress during his operational service.
29. Evidence was presented to the Tribunal regarding a possible operational stressor to the veteran as being the exposure to the shooting of a Japanese soldier. Dr Vincent is of the opinion that this event would be consistent with causing Mr Sergeant to suffer from a panic disorder or an anxiety disorder.
Legislative Background
30. Section 9 of the Act provides for when a disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1) Subject to this section, and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
31. I find that the service of Mr Sergeant is operational service for the purposes of the Act.
32. Section 13(1) of the Act provides that where the death of a veteran is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the dependants of the veteran.
33. It is not in issue that Mr Sergeant was a veteran and that Mrs Sergeant is his widow.
34. As Mr Sergeant had operational service, the determination of whether his death was war-caused is to be made by applying s 120(1) and (3) of the Act. That involves determining first the “kind of death” and then applying the four step process identified by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio(1998) 83 FCR 82 at 97-98.
35. Under s 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, a hypothesis connecting a disease with a veteran’s operational service can only be raised if it is upheld by a SoP.
36. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veteran, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B (14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
37. In considering the application of Mrs Sergeant I have to apply the four “steps” outlined in Repatriation Commission v Deledio (1998) 83 FCR 82.
38. What is commonly referred to as the “first step” in Repatriation Commission v Deledio requires me to consider all the material that is before me and determine whether that material points to an hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
39. I consider that the whole of the material does indeed point to an hypothesis connecting the death of Mr Sergeant with the circumstances of his service and accordingly the first Deledio step is satisfied.
40. The “second step” in Repatriation Commission v Deledio requires me to ascertain whether there is a SoP which has been determined by the RMA. It is not in issue that there are the following Statements of Principles:-
· Statement of Principles for Cerebrovascular Accident (Instrument No 51 of 2006).
· Statement of Principles for Ischaemic Heart Disease (Instrument No 53 of 2003, as amended by Instrument No 9 of 2004).
· Statement of Principles for Hypertension (Instrument No 35 of 2003, as amended by Instrument No 3 of 2004).
41. These are the various Statements of Principles, and the second step is accordingly satisfied.
42. I also mention that for the purposes of deciding this application there are no SoPs which are more favourable to the applicant: see Repatriation Commission v Gorton (2001) 110 FCR 321.
43. I also mention that soon after the hearing I ascertained that the SoP for Cerebrovascular Accident (Instrument No 51 of 2006) was issued. As that SoP would be operative at the date of my decision, I informed the parties of the new SoP and gave them the opportunity to make further submissions to me.
44. The “third step” in Repatriation Commission v Deledio requires me to consider whether the hypothesis raised is a reasonable one for the purposes of s 120(3) of the Act.
45. This requirement will be met if a hypothesis fits or is consistent with the template provided by the SoP. In considering this “third step” I emphasise that I am not concerned with the proof of the claim of an applicant.
46. At this stage of my enquiry I have assumed the truth of the facts which have been put forward on behalf of Mrs Sergeant. The version of facts must “point to” or support a hypothesis connecting the death of Mr Sergeant with his operational service. Any such hypothesis must be grounded in fact: see Gilbert v Repatriation Commission (1989) 86 ALR 713 at 719.
47. I am concerned whether the hypothesis connecting the death of Mr Sergeant with his operational service is reasonable.
48. The Full Court of the Federal Court remarked in East v Repatriation Commission (1987) 16 FCR 517 at p 532:
“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.”
49. In applying this third step, I mention that there is evidence capable of showing that Mr Sergeant may have been exposed to events (such as air-raids and the death of a Japanese soldier) that in turn may have caused him to be fearful and anxious. I also mention that the official historian has concluded that air raids ceased on Morotai on December 1944 (G Odgers, Air War Against Japan 1943-1945, Canberra, 1957, pp. 311-316). However, Professor J McCarthy has found secondary evidence of a significant air raid on Morotai on 22 March 1945 that occasioned loss of life as well as demolishing a USA mess building [exhibit R1]. This significant raid occurred just prior to Mr Sergeant being posted to Morotai, and the damage caused by that raid would have been evident to him. The difficulty in undertaking my enquiry is that the veteran is not present to give evidence of his war-time experiences.
50. Having regard to all of the material, I consider that there is sufficient factual material before me to “point to” a reasonable hypothesis connecting the death of Mr Sergeant with his operational service.
51. Clause 4 of the SoP for Cerebrovascular Accident (Instrument No 51 of 2006) states that the RMA is of the view that “there is sound medical-scientific evidence that indicates that…death from cerebrovascular accident can be related to relevant service rendered by veterans”.
52. Clause 6 of the SoP for Cerebrovascular Accident (Instrument No 51 of 2006) lists the “factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person’s relevant service”.
53. Factor 6(a) of that SoP is “having hypertension at the time of the clinical onset of cerebrovascular accident”. I consider that this factor is satisfied by the material before me. The respondent has quite properly submitted that “[t]he onset of hypertension is unknown, but was sometime before the veteran’s arrival at the surgery on 25.11.84”: respondent’s submissions, para 5. The respondent has also quite properly submitted that “the onset of cerebrovascular accident would have been 10.2.86”: respondent’s submissions, para 5. There is also of course the onset of cerebrovascular accident at the time of death. On this material it is clear that there is the presence of hypertension before the clinical onset of cerebrovascular accident so as to satisfy factor 6(a).
54. I consider that this factor is related to the operational service of Mr Sergeant. Professor McCarthy has adverted to how starving Japanese troops would attempt to infiltrate into areas occupied by the allies in order to obtain food, and how the shooting of a Japanese prisoner of war would not have warranted an official mention. There is also the unchallenged evidence concerning Mr Sergeant’s experiences with air raids.
55. The third step in Repatriation Commission v Deledio is accordingly satisfied.
56. Having found that factor 6(a) of the SoP for Cerebrovascular Accident (Instrument No. 51 of 2006) is satisfied, it is unnecessary for me to consider factor 6(c) of that SoP or indeed any other SoPs.
57. The ‘fourth third step’ in Repatriation Commission v Deledio requires me to proceed to consider under s 120(1) whether I am satisfied beyond reasonable doubt that the death was not war-caused.
58. I accept that Mrs Sergeant and Mr Graham Sergeant were credible witnesses. Their evidence was not challenged under cross-examination. Professor McCarthy gave evidence of how starving Japanese troops would attempt to infiltrate an allied area to obtain food. Professor McCarthy was also not prepared to discount the possibility that Mr Sergeant witnessed the shooting of a Japanese soldier by an allied officer.
59. I also mention that Mrs Sergeant does not bear any onus of proof: see s 120(6). In this case the applicant has placed material before me to show the stressful nature of the environment in which Mr Sergeant was required to serve. Indeed the research of Professor McCarthy has revealed a significant air raid just prior to Mr Sergeant being posted to Morotai
60. At the date of his death the veteran had already had a number of accepted war-caused conditions, including bilateral sensori neural deafness and bilateral tinnitus. I have already mentioned that Dr John Vincent had considered that his hearing condition had caused the late Mr Sergeant considerable stress and anxiety. It is also important to mention that the evidence of Mrs Sergeant concerning her late husband’s recurrent episodes of anxiety are verified by Dr Trevor Vincent who stated that those episodes were reported by the late Mr Sergeant himself (Exhibit A1). For all these reasons, I cannot be satisfied beyond a reasonable doubt that Mr Sergeant’s death was not war-caused within the meaning of s 9 of the Act.
61. I also mention that there was no medical evidence put forward by the Commission which would lead me to conclude that Mr Sergeant’s death was not war-caused.
Decision
62. For the above reasons, I set aside the decision of the Veterans’ Review Board and decide that the death of the late Mr Charles Sergeant is war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986. I remit the matter to the Repatriation Commission for the calculation of pension and arrears of pension.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P.M. McDermott, R.F.D
Signed: Fiona Kamst
Legal Research OfficerDate/s of Hearing 4 October 2006, 23 January 2007
Final Submissions received 6 February 2007
Date of Decision 21 March 2007
For the Applicant Mr P O'Neil, of Counsel
For the Applicant Files Stibbe Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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