Shambler and Repatriation Commission (Veterans' entitlements)
[2019] AATA 5491
•19 December 2019
Shambler and Repatriation Commission (Veterans' entitlements) [2019] AATA 5491 (19 December 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/2056
Re:Veronica Shambler
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Senior Member Dr D. H. Katter
Date:19 December 2019
Place:Brisbane
The decision under review is affirmed.
..................................................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – widow’s pension – whether death of veteran defence-caused – material – decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Re Dell and Repatriation Commission (1986) 9 ALD 596
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
Roncevich v Repatriation Commission (2005) 222 CLR 115REASONS FOR DECISION
Senior Member Katter
19 December 2019
INTRODUCTION
This is an application to review the decision of the Respondent, refusing a claim for a pension by the Applicant.
FACTUAL BACKGROUND
Mr Kenneth Shambler served in the Royal Australian Air Force from 18 February 1957 to 17 February 1969[1]. From 8 January 1964 to 15 July 1964 Mr Shambler rendered service at Ubon, Thailand[2].
[1] Exhibit 1, Section 37 T-Documents, T14, page 61.
[2] Exhibit 1, Section 37 T-Documents, Veteran Community Details Report.
Mrs Veronica Shambler married Mr Kenneth Shambler on 28 January 1960[3], in Australia[4].
[3] Exhibit 1, Section 37 T-Documents, T3, page 2.
[4] Exhibit 1, Section 37 T-Documents, T4, page 7.
Mr Kenneth Shambler passed away on 11 October 2014[5].
[5] Exhibit 1, Section 37 T-Documents, T4, page 7.
The cause of death of Mr Shambler stated in the Queensland Death Certificate was[6]: “(a) Right sided intracerebral haemorrhage (b) Hypertension”.
[6] Exhibit 1, Section 37 T-Documents, T4, page 7.
On 4 August 2015 the Applicant claimed a war widow’s pension[7].
[7] Exhibit 1, Section 37 T-Documents, T3, pages 1 to 6.
The Applicant requested a review under ss 31 and/or 136 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) on 15 September 2015, stating the following grounds[8]:
“The delegate erred in that the Veteran served in Thailand at RAAF Base UBON and was declared Operational Service:
Pensions Officers Handbook states:
A.8 Service in Thailand
Service in North East Thailand (including Ubon) during the period 31 May 1962 to 24 June 1965 (inclusive) is classified as operational service. However such service will not count as qualifying service for service pension.
Service rendered as a member of the Defence Force in North East Thailand (including Ubon) during the period 25 June 1965 to 31 August 1968 (inclusive) as part of a unit listed on the Ministerial Determination of Warlike Service is warlike service. Warlike service is both operational service for the purpose of disability compensation, and qualifying service for service pension purposes.
A8.1 RAAF Service at Ubon BaseA RAAF contingent was stationed at the Royal Thai Air Force base at Ubon in Eastern Thailand from 31 May 1962 until 31 August 1968. The contingent was deployed as part of Australia’s commitment under SEATO, solely in the role of air defence of Thailand. Ubon was also an USAF base and a potential target for [sic] … ”
[8] Exhibit 1, Section 37 T-Documents, T5, page 8.
By a decision dated 3 November 2016 the Respondent decided that the death of Mr Shambler was not related to service and that a war widow’s pension was therefore not payable[9].
[9] Exhibit 1, Section 37 T-Documents, T10, pages 19 to 28.
By a decision of 20 March 2018 the Veterans’ Review Board (“the Board”) affirmed the decision under review, thereby not changing the decision of the Respondent[10].
[10] Exhibit 1, Section 37 T-Documents, T2.
The Application to the Tribunal, dated 16 April 2018[11], stated relevantly as to the “reasons for the application”[12]:
“The [Board] erred in their decision by failing to take into account the Veteran’s medication that was given to [Mr Shambler], in that [Mr Shambler] took Paracetemol which would have contributed to his hypertension as per the Statement of Principles for Hypertension No: 63 of 2013, which caused his Cerebral Vascular Accident.
The Veteran suffered from clinically significant Anxiety for which his medication noted he was prescribed Lexotan 3mg, which could have contributed to his Cerebral Vascular Accident. …”
[11] Exhibit 1, Section 37 T-Documents, T1, page A3.
[12] Exhibit 1, Section 37 T-Documents, T1, page A4.
ISSUE
The issue for determination is whether the Applicant is entitled to a pension pursuant to s 70 of the Act, in that the death of the veteran was defence-caused.
SECTION 70
Section 6D(1)(a)(iii) of the Act states that:
(1)This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
(a)was assigned for service:…
(iii) in North East Thailand (including Ubon) at any time during the period from and including 28 July 1962 to and including 24 June 1965; …
but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.
Section 70(1) of the Act relevantly states that ‘where the death of a member of the Forces or member of a Peacekeeping Force was defence-caused the Commonwealth is, subject to this Act, liable to pay, in the case of the death of the member, pension by way of compensation to the dependants of the member, in accordance with this Act’.
Section 11 of the Act is headed “Dependants” and defines for the Act, unless the contrary intention appears, a “dependent” in relation to a veteran (including a veteran who has died) in sub-s 11(1)(c) as meaning the widow or widower of the veteran (other than a widow or a widower who marries, re-marries or enters into a de facto relationship).
Pursuant to s 70(5)(a) of the Act the death of a member of the Defence Forces or member of a Peacekeeping Force shall be taken to be defence-caused if the death arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member, but not otherwise.
Pursuant to s 70(5) of the Act a disease contracted by such a member shall be taken to be a defence-caused disease if the death is to be deemed by subsection (6) to be defence-caused. Sub-section 70(6) states that:
(6)Where, in the opinion of the Commission, the death of a member of the Forces or member of a Peacekeeping Force was due … to a disease that would not have been contracted, but for his … having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service:
(a)the death of the member shall be deemed to have resulted from that defence service or peacekeeping service, as the case may be; and
(b)the death of the member shall be deemed to be defence-caused, for the purposes of this Act.
Section 71 of the Act states that application of certain provisions of Part II of the Act apply to and in relation to pensions payable in accordance with Part IV in like manner as they apply to and in relation to pensions payable in accordance with Part II.
Section 120 of the Act states relevantly:
(1)Where a claim under Part II for a pension in respect 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.
(2)Where a claim under Part IV:
(a)in respect of the … death of such a member relates to the peacekeeping service rendered by the member; …
the Commission shall determine that the … death of the member was defence-caused, … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1:For member of a Peacekeeping Force, peacekeeping service, member of the Forces, … see subsection 5Q(1A).
Note 2: This subsection is affected by section 120A.
(3)In applying subsection (1) or (2) 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:…
(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.
Section 120A states relevantly:
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(4)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;
(b)a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; …
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2:For peacekeeping service, member of a Peacekeeping Force, … member of the Forces … see subsection 5Q(1A).
(5)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(6)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);
that upholds the hypothesis.
EVIDENCE
Mr Shambler was born on 27 August 1939[13].
[13] Exhibit 1, Section 37 T-Documents, T3, page 1.
In a Royal Australian Air Force medical examination of 11 February 1957, Mr Shambler was 5 foot 6 inches, with a weight of 8 stone 13 lbs[14].
[14] Exhibit 1, Section 37 T-Documents, T14, page 40.
The Applicant gave oral evidence that Mr Shambler, before going to Ubon in January 1964, was part of a “normal happy family”[15]. That there was never any alcohol in the home; he ‘might have drank’ or ‘maybe even had a cigarette’ with his mates but there was none at home[16]. That they were not ‘late night people or go-outers and [Mr Shambler] would go to bed fairly-early’[17].
[15] Transcript, page 6, line 37.
[16] Transcript, page 6, lines 39 to 42.
[17] Transcript, page 7, lines 15 to 16.
As referred to above, the veteran served at Ubon, Thailand from 8 January 1964 to 15 July 1964[18]. The Applicant stated that the veteran sent home cigarettes, from Ubon, just to keep, as they were so much cheaper to buy over there[19]. That there was a ‘stack’ of cigarettes when the veteran came home, sitting there[20].
[18] Exhibit 1, Section 37 T-Documents, Veteran Community Details Report.
[19] Transcript, page 7, lines 43 to 44.
[20] Transcript, page 8, line 3.
The Applicant stated that Mr Shambler did say that he had had dengue fever ‘over there’ and that he ‘thought he was going to die’, having spent two weeks in hospital[21].
[21] Transcript, page 7, lines 32 to 34.
The Applicant’s evidence was that after the veteran returned from Ubon he was a “different man”[22]. That before going to Ubon, the veteran had never smoked, but smoked after he came back[23]. Before the veteran went to Ubon he drank socially, but after returning from Ubon he drank heavily[24]. That the veteran was an anxious person after returning from Ubon[25]. That the veteran would sit up ‘drinking’, after the Applicant went to bed[26]. After Ubon the veteran didn’t do as much with the children and was quick tempered[27]. That the veteran would go ‘into a state’ and get himself ‘all uptight’ and would be quite abusive[28]. The first thing the veteran did in the morning was to pick up a cigarette and the last thing at night was to put one out[29]. The veteran would have nightmares[30].
[22] Transcript, page 3, lines 11 to 12.
[23] Transcript, page 2, lines 25 to 27.
[24] Transcript, page 2, lines 26 to 27.
[25] Transcript, page 7, line 32.
[26] Transcript, page 8, line 5.
[27] Transcript, page 8, lines 6 to 7.
[28] Transcript, page 8, lines 14 to 16.
[29] Transcript, page 8, lines 21 to 22.
[30] Transcript, page 8, lines 30 to 31.
The Applicant stated that before going to Ubon, Mr Shambler had not taken any medications to the Applicant’s knowledge[31]. The Applicant referred to Mr Shambler taking medications, after returning from Ubon, including phenergan[32], lyrica[33], lexatin[34], paracetemol[35], losic[36] and mylanta[37].
[31] Transcript, page 11, lines 28 to 31.
[32] Transcript, pages 8 and 12.
[33] Transcript, page 12.
[34] Transcript, pages 11, 12 and 28.
[35] Transcript, page 3, 11 and 12.
[36] Transcript, page 27, line 21 to 22; page 29, line 19 to 21.
[37] Transcript, page 12, lines 41 to 42.
The Applicant “did not know what happened over there [Ubon] to change him like that”[38].
[38] Transcript, page 11, line 24.
As to the dengue fever diagnosed as to Mr Shambler on 6 June 1964, the Applicant stated: “ … that if you have it really bad, and if you don’t die, you are left with a neurological disease … ”[39].
[39] Transcript, page 19, lines 4 to 5.
No other witnesses gave oral evidence, other than the Applicant.
In the service medical records there is an “Inpatient Record Cover Sheet”, dated 19 May 1968, by a Medical Officer, as to an admission at “BSQ Darwin” of Mr Shambler from 1430 on 14 May to 18 May 1968[40]:
[40] Exhibit 1, Section 37 T-Documents, T2, page B9.
“…19. PRIMARY DIAGNOSIS
1. ? Urinary infection
2. Anxiety State.
…
23. RESULT: … Improved…
…
25. MEDICAL CATEGORY
Unchanged …”
There was no other oral or documentary evidence as to that service medical record of 19 May 1968[41].
[41] The record being at Exhibit 1, Section 37 T-Documents, T2, page B9.
CONSIDERATION
The operational service of Mr Shambler at Ubon is not in issue[42]. It is also not in contention that Mr Shambler died from[43]: “(a) Right sided intracerebral haemorrhage; and (b) Hypertension”.
[42] Paragraph 2 of the Respondent’s submissions filed 31 July 2019.
[43] Exhibit 1, Section 37 T-Documents, T4.
The hypothesis of the Applicant is that the veteran “ … began to drink and smoke cigarettes when he was posted to Ubon”[44].
[44] Transcript, page 28, lines 32 to 33.
In applying ss 120(1), 120(3) and 120A of the Act, consideration is to be made of all the material before the Tribunal, including the oral evidence of the Applicant, and whether all that material points to some fact or facts (the ‘raised facts’) which support the hypothesis connecting the disease or death of the veteran with the circumstances of operational service and whether that hypothesis can be regarded as reasonable, in that the ‘raised facts’ are true.
Sub-section 70(5)(a), as referred to above, requires a determination as to whether the death arose out of, or was attributable to, any defence service of the member. In Roncevich v Repatriation Commission (2005) 222 CLR 115 at 126 [27] per McHugh, Gummow, Callinan and Heydon JJ it was stated that:
The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.[[45]]
[45] R v Monopolies and Mergers Commission; Ex parte National House Building Council [1994] TLR 38; Walsh v Rother District Council [1978] 1 All ER 510 at 514 per Donaldson J.
In Forrester v Repatriation Commission [2013] FCA 898 (6 September 2013) at [23] to [32] per Mortimer J, it was relevantly stated:
“Identifying a Hypothesis
23.To engage the process in ss 120(1) and 120A, a particular hypothesis must be identified. The language of ‘hypothesis’ is significant: it is a textual indication of at least two matters. First, the scheme’s recognition of the difficulties associated with establishing an injury, disease or death as war-caused, sometimes long after the relevant service; second, the beneficial threshold set by ss 120 and 120A. A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: Repatriation Commission v Stares (1996) 66 FCR 594 at 601 per Black CJ, Ryan and Einfeld JJ.
24.In the present case, the ‘ultimate fact’ is Mr Forrester’s death from an aortic aneurysm. The supposition or conjectural explanation for that death is (reducing the hypothesis as set out at [61] of the Tribunal’s reasons to its essential components) that Mr Forrester commenced drinking heavily during his operational service in Vietnam partly or wholly as a result of five identified ‘stressors’ he encountered during his service, each of which involved tasks he was said to have been charged with or events in which he was said to have been involved while in Vietnam. This heavy drinking is said to have continued on his return from Vietnam and to have caused him to develop hypertension, which in turn caused the aortic aneurysm.
The Deledio Steps
25.A Full Court of this Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97–98 set out the manner in which s 120(1), read together with the provisions that qualify it, is to be applied. The Court identified four steps:
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 a 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 a 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.
26.In Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [31], Allsop J pointed out that the second sentence in the second paragraph is not correct. Otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.
27.It is especially important to understand the difference between the first and fourth steps in Deledio, although the line between them is far from bright: see Collins 163 FCR 35 at [49] per Allsop J.
28.At the first Deledio step, the authorities are clear that the Tribunal is not to engage in ‘fact finding’: Bull v Repatriation Commission (2001) 66 ALD 271 [2001] FCA 1832; Repatriation Commission v Deledio (1998) 83 FCR 82. The fourth Deledio step is the point at which there needs to be fact finding by the decision-maker, and will occur only once the Tribunal is satisfied a reasonable hypothesis has been raised. Recalling the beneficial nature of the process established by s 120, even that task remains a confined exercise. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ described the fact-finding exercise in the following terms:
The claim will succeed unless (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
29.Nevertheless, the first step in Deledio, requiring the formation by the Tribunal of a view or opinion about the material before it, and a characterisation of that material as ‘pointing to’ or ‘supporting’ the hypothesis advanced, involves some level of factual assessment.
30.Whether material ‘points to’ or ‘supports’ a hypothesis is, of its nature, a matter which can be determined by inference or assumption: Elliott v Repatriation Commission (2002) 73 ALD 377; [2002] FCA 26 at [5]. In Stares (a pre-Deledio case), the Full Court held that assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach. Referring to the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes 177 CLR 564 at 569, the Full Court stated (66 FCR 594 at 601):
By there saying that ‘the material must point to some fact or facts’ their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion.
31.Importantly for the resolution of the issues in this case, the use of the verb ‘raise’ in s 120(3), and the subsequent approach of asking whether material ‘points to’ or ‘supports’ a hypothesis, has been held to require more than that the material before the decision-maker leaves the propounded hypothesis open as a possibility. A possibility of connection between war service and death, injury or disease is not enough: Repatriation Commission v Bey (1997) 79 FCR 364 at 372, 375.
32.The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it: see Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 at [53]. The manner in which these two aspects of reasonableness operate assists in resolving the third argument raised by the applicant.”
There is therefore a detailed statutory standard and prescription as to causation set out in s 120 and s 120A of the Act[46]. It is the establishment of the causal connection between injury, death or disease and the veteran’s service that is subject to these detailed descriptions[47]. Section 120 does not impose a presumption that a death is war-caused, nor an onus on a claimant to prove that it is[48]. Section 120, particularly s 120(1), requires a determination that a death was war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”[49]. Section 120(3) provides for the circumstance in which the Commission is obliged to find there is no sufficient ground for the purposes of s 120(1), if[50]: “ … after consideration of the whole of the material before it, [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.”
[46] See Forrester v Repatriation Commission [2013] FCA 898 (6 September 2013) at [9] per Mortimer J.
[47] See Forrester v Repatriation Commission [2013] FCA 898 (6 September 2013) at [9] per Mortimer J.
[48] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 98 as referred to in Forrester v Repatriation Commission [2013] FCA 898 (6 September 2013) at [11] per Mortimer J.
[49] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 98 as referred to in Forrester v Repatriation Commission [2013] FCA 898 (6 September 2013) at [11] per Mortimer J.
[50] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 98 as referred to in Forrester v Repatriation Commission [2013] FCA 898 (6 September 2013) at [12] per Mortimer J.
In Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ observed at 413-415:
“ … Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact. … The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.”
In Forrester at [14] it was relevantly stated that the relevant hypothesis must “find some support” in the material and that the material must “point to, and not merely leave open” the hypothesis relied upon, referring to East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 at 532 and Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615-616.
The appeal in Forrester was dismissed, where the Appellant was the widow of the veteran who had served in Vietnam and who, as referred to above, identified a hypothesis that the veteran “commenced drinking heavily during his operational service in Vietnam partly or wholly as a result of five identified ‘stressors’ he encountered during his service, each of which involved tasks he was said to have been charged with or events in which he was said to have been involved while in Vietnam. This heavy drinking is said to have continued on his return from Vietnam and to have caused him to develop hyper-tension, which in turn caused the aortic aneurysm”[51]. In Forrester the hypothesis was particularised; that the veteran commenced drinking heavily during operational service partly or wholly as a result of various ‘stressors’ encountered during service: a. There was discord between the veteran and his superior Officer; b. The veteran was ordered to inspect brothels by his superior, which he refused to do; c. The veteran had the task of sending home the affects of the deceased, and writing letters to their parents; d. Being involved in a court martial for a soldier the veteran felt some sympathy for; and e. Having been shot at by the soldier the subject of the court martial.
[51] Forrester v Repatriation Commission [2013] FCA 898 (6 September 2013) at [24] per Mortimer J.
The Applicant submits that the evidence, including the evidence of the Applicant, does point to facts which support the hypothesis connecting the death of the veteran with the circumstances of service in Ubon[52]. The Respondent submits that the Applicant cannot point to any record of incidents occurring at Ubon during the course of the veteran’s service[53], that the material before the Tribunal does not raise a reasonable hypothesis and that the death of the veteran is not related to the relevant service[54].
[52]Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions dated 9 July 2019, paragraphs 2, 4, 7 and 12.
[53] Paragraph 27 of the Respondent’s submissions lodged 30 July 2019.
[54] Paragraph 29 of the Respondent’s submissions lodged 30 July 2019.
As stated at paragraph [29] in Forrester, the first step in Deledio requires the formation by the Tribunal of a view or opinion of the material before it and a characterisation of that material as pointing to or supporting the hypothesis advanced and ‘involves some level of factual assessment’.
The Applicant, as referred to above, referred to Mr Shambler having dengue fever[55], but that material, not specifically supported by medical or scientific evidence for what was asserted, does not point to or support the hypothesis that the veteran began to drink and smoke cigarettes by reason of having dengue fever. Therefore, the death of the veteran was not due to a disease that would not have been contracted, but for the veteran having rendered service or but for changes in the veteran’s environment consequent upon the veteran having rendered such service[56].
[55] Transcript, page 7, lines 32 to 34.
[56] Section 70(6) of the Act.
The Applicant also referred to ground attacks on air bases[57] and Communist activities in Thailand, but that material is general, in that it does not point to or support the hypothesis specifically that the veteran began to drink and smoke cigarettes.
[57] Exhibit 8, extract from book “Snakes in the Eagles Nest: A History of Ground Attacks on Air Bases” by Mr A. Vick.
The dengue fever of the veteran[58], and the material as to ground attacks[59] and Communist activities[60] leave open the propounded hypothesis as a possibility, which is ‘not enough’[61]. Therefore, the relevant hypothesis does not ‘find some support’ in the ‘material’. The material of the Applicant leaves the propounded hypothesis open as a possibility[62]. As stated in Repatriation Commission v Bey (1997) 79 FCR 364 at 372 and 375, a possibility of connection between service and death, injury or disease is not enough. There is not material to point to the hypothesis connecting the injury, disease or death with the particular circumstances of the particular service in Ubon rendered by the veteran, Mr Shambler. There is the hypothesis posed that the veteran began to drink and smoke cigarettes when he was posted to Ubon[63], as referred to above[64], but it is found that there is not material that points to that hypothesis beyond a possibility of connection, having regard to the circumstances of the particular service rendered at Ubon by the veteran, Mr Shambler. It is therefore decided that the death of the veteran was not defence-caused[65].
[58] Transcript, page 7, lines 32 to 34.
[59] Exhibit 8, extract from book “Snakes in the Eagles Nest: A History of Ground Attacks on Air Bases” by Mr A. Vick.
[60] Exhibit 12, Applicant’s evidence regarding Communist activities in Thailand.
[61] Repatriation Commission v Bey (1997) 79 FCR 364 at 372 and 375.
[62] Forrester v Repatriation Commission [2013] FCA 898 (6 September 2013) at [31] per Mortimer J.
[63] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions dated 9 July 2019, paragraph 2.
[64] Transcript, page 28, lines 32 to 33.
[65] Sub-section 70(1) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
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Dated: 19 December 2019
Date of hearing: 28 June 2019 Date final submissions received: 30 July 2019 Advocate for the Applicant: Mr Brian O’Neill Solicitor for the Respondent: Mr Bruce Williams
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