Shanahan and Repatriation Commission
[2007] AATA 2028
•10 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2028
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0508
VETERANS’ APPEALS DIVISION ) Re FLORENCE SHANAHAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date10 December 2007
Place Brisbane
Decision The Tribunal affirms the decision under review. ..................[Sgd]............................
DR EK CHRISTIE
MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – the veteran had operational service in the Royal Australian Navy – Statements of Principles – Haemochromatosis – Cirrhosis of the liver – Tribunal satisfied on the evidence that the veteran’s death was not war-caused – decision under review affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 119, 120
Jackman v Repatriation Commission [1997] FCA 564
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Stares (1996) 41 ALD 212 at 217
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408
Connors v Repatriation Commission [2000] FCA 783
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571
Critch v Repatriation Commission (1996) 43 ALD 574
Borrett v Repatriation Commission [2000] FCA 1829
Mason v Repatriation Commission [2000] FCA 1409REASONS FOR DECISION
10 December 2007 Dr EK Christie Member Introduction
1. This is an application by Florence Shanahan to review a decision of the Veterans’ Review Board (“the VRB”) made on 30 November 2006. The VRB decided that the death of her late husband, John Shanahan, was not war-caused.
2. In reaching its decision, the VRB concluded, on the evidence before it, that it was “difficult for the Board to connect the veteran’s alcohol consumption with his operational service on the available evidence”.
3. At the hearing, Muriel Shanahan was represented by Mr PB O’Neill of Counsel instructed by Files and Stibbe. The Repatriation Commission was represented by Mr M Smith, a Departmental Advocate.
4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
5. The general facts were not in dispute and may be stated briefly.
·The late veteran served in the RAN for six years from 8 February 1951 to 22 May 1957;
·During this 6 year period, his operational service comprised a period of 18 months: 3/7/52 to 11/4/53 (Korean War, HMAS Condamine); 27/1 to 27/10/54 (Korean War, HMAS Arunta); and 21/9 to 28/9/56 (Malayan Emergency, HMAS Melbourne); and
·The late veteran passed away on 10 August 2005, aged 72.
6. The causes of death, as certified on the Death Certificate (T4, Folio 2), were:
(a)Pneumonia
(b)Liver failure
(c)Haemochromatosis
7. The late veteran’s accepted and rejected disabilities were:
(a)Service-related disabilities: Nil
(b)Non-Service-related Disabilities: Death
Issues To Be Decided
8. The primary issue to decide was whether the late Mr Shanahan’s death, was caused as a direct result of his operational service.
9. Florence Shanahan (the applicant), Ian Blackshaw (the late veteran’s brother) and Catherine Shanahan-Jarvis (the late veteran’s daughter) gave oral evidence at the hearing. The respondent called no witnesses. Neither party called for any expert medical evidence at the hearing.
10. In a statement filed on 28 September 2007, Mr Smith, for the respondent conceded that “the medical evidence is settled and the only area of contention is the connection between the veteran’s alcohol consumption and eligible service”.
Statutory Requirements And Case Law
11. Section 120(1) of the Veterans’ Entitlements Act 1986 (“the Act”) provides that, 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, disease or death of the veteran was war caused…unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination” (Emphasis added).
12. Section 120(3) of the Act provides that in applying subsection (1):
“the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining…that the injury, disease or death was war-caused…if the Commission, after consideration of the whole of the material before it does not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person.”
13. The requirements for proof in accordance with the standard in subsection 120(4) – the “reasonable satisfaction” of the Tribunal – have been considered in a number of cases. As Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction… Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculation of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality”.
14. Following the introduction of Statement of Principles, the Federal Court eventually reached a position where it summarised four stages which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four stages as follows:
“At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
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 s196B(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” (Emphasis added).
15. A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
16. The plain meaning of “hypothesis” was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
“A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption.”
17. In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges concluded:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”
18. In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is :
“obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”
and:
“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 supports the hypothesis and if the hypothesis can be regarded as reasonable if the facts are true.”
19. In Connors v Repatriation Commission [2000] FCA 783 at para. 14, Kenny J rejected a submission made by Counsel that “no individual part or parts of the hypothesis need be supported by facts raised in or by evidence”.
20. As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, said:
“The position may be summarised as follows:
(1)First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran’s service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established sub-s (1) of s 120 is applied. 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, this disproving, beyond reasonable doubt, the hypothesis.”
Consideration of the Issues and findings
21. I have taken into account all of the oral and documentary evidence, the legislation and case law in exercising the powers as the administrative decision-maker. Furthermore, I have adopted the sequential stages in Deledio’s case in resolving the factual issues in dispute.
Stage I: Whether the Material before the Tribunal points to an Hypothesis that connects the Death of the Veteran with the Circumstances of Services
22. Based on the oral and documentary evidence before me, the hypothesis that can be constructed is that the late veteran had a drinking habit arising out of his operational service which contributed to his liver disease which was a cause of his death. The late veteran commenced drinking following offensive action taken on naval ships on which he had served during the Korean War. The late veteran drank regularly in the post-war period because of stress experienced whilst on operational service.
23. Applying the principles in East, Stares and Byrnes, I conclude that the essential elements of the hypothesis are pointed to by the material before me and so raise an hypothesis connecting the death of Mr Shanahan with the circumstances of service. I recognise this hypothesis to be “a supposition made as a starting point for further investigation from known facts and no more than a conjectural explanation of an ultimate fact”.
Stage II: Whether a Statement of Principles is in Force
24. The following Statements of Principles (“SoP”) are applicable:
·Haemochromatosis, Instrument no. 5 of 1997; and
·Cirrhosis of the liver, Instrument no. 35 of 1998.
Stage III: Whether the Hypothesis is a Reasonable One
25. In relation to the hypothesis identified in paragraph 22, and pursuant to subsection 120(3) of the Act - the following factor [No.5(a)] relates to the relevant service rendered by the late veteran. Factor 5(a) is contained within each SoP and so consistent with the template of fact:
(a)Cirrhosis SoP
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cirrhosis of the liver or death from cirrhosis of the liver with the circumstances of a person’s relevant service are:
(a) for men, consuming at least 150 kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver; or ….” And
(b)Haemochromatosis SoP
“5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting haemochromatosis or death from haemochromatosis with the circumstances of a person’s relevant service are:
(a) for men, drinking at least 150kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical worsening of haemochromatosis; or ….”
26. That is, the question subsection 120(3) requires to be asked is whether all, or some, of the facts raised by the material gives rise to a reasonable hypothesis connecting the veteran’s disease with war service: see Byrnes’ case.
27. The material before me points to the fact that the late veteran drank during operational service because of stress and that he continued drinking, following discharge. Symptoms for the clinical onset of cirrhosis were noted six months before the death of the late veteran from liver disease.
28. Mr Smith has acknowledged that there is no dispute that the late veteran satisfied the SoP requirement of consuming at least 150kg of alcohol within any 10 year period before the clinical of cirrhosis as well as the clinical worsening of haemochromatosis.
29. Accordingly, I am reasonably satisfied, having considered all of the available factual evidence and materials, that the hypothesis advanced is reasonable. The hypothesis advanced by the applicant connecting operational service to his subsequent death of the late veteran is neither fanciful nor untenable.
Stage IV: Whether The Factual Evidence Discharges The Legal Standard Of Proof
30. A difficulty that arises in this application for review of the available materials is the proof of facts that point to a connection between the late veteran’s operational service and the continuation of his alcohol consumption in the post-operational service period. The outcome, in these circumstances, turns on the sufficiency of materials to establish the requisite connection: Critch v Repatriation Commission (1996) 43 ALD 574.
31. The evidence before me, in this regard, is limited.
32. The evidence of Mrs Shanahan (the applicant) was that she married her late husband in July 1965 and so had no direct knowledge of his drinking habits prior to and during operational service.
33. She said that her late husband spoke little about his war service as he kept his war service “bottled up”. She said that her husband had told her that he was a naval gunner and was required to fire on the enemy. She further stated that her late husband suffered from stress as a result of his war service. She said that her husband had been interviewed by the local Jindabyne newspaper in 1996 (where they lived at that time) when he recalled two occasions where his ship had been fired upon when in Korean waters (Exhibit 2).
34. In addition, Mrs Shanahan stated that her late husband had a fear of flying in small commercial aeroplanes because he had shot down small planes during the Korean War.
35. However, Mrs Shanahan could not recall her late husband ever saying that on the occasions when his ship came under fire, that he felt he was at risk or in danger of either being injured or killed.
36. Ian Blackshaw’s evidence relates to the time that he was aged around 10 to 12 years when the late veteran was on operational service; he said that he had no knowledge of the late veteran’s drinking habits prior to and during service in Korea. However, his evidence supports the fact that the late veteran drank the rum and beer ration whilst serving on naval ships. In addition, that late veteran drank whilst on shore leave in Australia, Japan and Hong Kong.
37. Catherine Shanahan-Jarvis stated that her father never voiced his feelings or emotions about how he felt during “stoushes” whilst in Korean waters - but there were times when he had spoken to her about his experiences in the RAN. She said that this occurred when she was serving in the Army and her father had “loosened” up after drinking. When sober, the late veteran never spoke about his service in the Navy.
38. Her father had told her about coming under fire several times. However, when asked, she could not recall her father saying that he had feared for his safety or his life during these occasions of coming under fire.
39. Catherine Shanahan-Jarvis recalled an incident when her father was watching aerial combat scenes from the movie “Pearl Harbour” on wide screen television in her home. These scenes caused a great deal of emotional distress for him causing him to seek recourse in alcohol and to become intoxicated.
40. In addition, whilst the Captain’s Log (“Report of Proceedings”) from the HMAS Condamine (Exhibit 7) records entries where the ship was fired upon or had fired at shore targets (1 September 1952; 3 October 1952; 2 December 1952 and 1 January 1953), there is no description of the likelihood of risk of the HMAS Condamine being in danger or the risk of damage or injury to the crew in these proceedings eg imminent danger for the ship.
41. Unfortunately, for this application for review, there is also no evidence to indicate whether the late veteran experienced or had been confronted with a threat of death or serious injury whilst serving on operational service. In addition, whether the events of being fired upon could be reasonably perceived to involve the threat of death or serious injury to the late veteran.
42. Consequently, based on the evidence before me that the late veteran did not talk about the “stoushes” he experienced under fire in the Korean War but kept things bottled up, it can only be concluded that he had a stoic personality such that he dealt with these issues in a manner he felt appropriate. Regrettably, his death prevents the possibility for this issue to be clarified by him.
43. In terms of the late veteran’s drinking habits, he enlisted in the RAN in 1951 as a 17½ year old lad. From the fact that he served in the RAN for six years it could be inferred that he would have been introduced to the alcohol culture of service life at that time. Certainly, the evidence of his brother supports the fact that he drank the rum and beer ration whilst serving on naval ships. In addition, that he drank whilst on shore leave in Australia, Japan and Hong Kong.
44. It is not a dispute that the late veteran’s drinking habits continued in the post-operational service period.
45. The problem for statutory proof under the VE Act, in the late Mr Shanahan’s factual circumstances, is the absence of medical evidence in the post-operational service period that could “forcefully point to a connection with war service” (Borrett v Repatriation Commission [2000] FCA 1829). Specifically, medical evidence that could establish that the drinking habit commenced during operational service and continued in the post-war period and which could corroborate the following statement of Mrs Shanahan:
“My husband did suffer from stress as a result of his war service and I believe that his drinking did help him to cope with his experiences he suffered during the war’ (Exhibit A1).
46. There is, regrettably, no medical evidence to indicate whether, at some stage, the late veteran, had sought or had received any medical treatment for “stress” during his life in the post-operational service period. In addition, whether there was a pattern of some form of stress triggered off by operational service that contributed to his drinking pattern? For example, whether at any time during the post-war period, the late veteran had become “stressed” as a result of the war-time experiences and, if so, whether alcohol consumption had become chronic and some form of self–medication?
47. Consequently, during the post-operational service period, it remains uncertain – based on the available evidence, whether the late veteran continued to drink, simply as a means of relaxation whilst living and working in rural Australia and/or whether alcohol induced relaxation was a consequence of some form of psychological disturbance caused by his war-time experiences?
48. Whilst subsection 119(1)(h) makes allowance for any difficulties that might lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effect of the passage of time, or the absence of, or a deficiency in relation official records, it may not be used to invent evidence which may serve to establish the necessary connection between an injury or death and war service: Mason v Repatriation Commission [2000] FCA 1409. Accordingly, subsection 119(1)(h) cannot be applied to address the issues in the preceding two paragraphs.
49. Each case must be considered on its merits. In this particular application, for all of the above reasons, I find that the evidence before me does not prove, at the requisite standard of proof for the purposes of ss 120(1) of the VE Act, that there is a connection between the late Mr Shanahan’s death from liver disease and his operational services. That is, the evidence before me is that one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt: Byrnes v Repatriation Commission.
DECISION
50. The decision under review is affirmed.
OBSERVATION
51. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The legislation gives me no other option than to arrive at this decision. As a matter of law, there is no discretion in the legislation for me to make any other decision based on the proved facts.
52. However, I raise for consideration by Mrs Shanahan’s legal representatives, the Departmental Policy Guideline “Act of Grace Payments” (Part 3, Chapter 9).
53. The Departmental Policy Guideline states as follows:
“Section 3 Act of Grace Payments
What is an Act of Grace payment
An Act of Grace payment may be made where a person has suffered a loss. Although there is no legal liability on the Commonwealth to meet the loss, it is considered that the Commonwealth bears some responsibility for the loss…
Eligibility for an Act of Grace payment
Eligibility for an Act of Grace payment depends on the claimant’s circumstances and a wide range of matters may be taken into account to determine eligibility although there is no set eligibility criteria for an Act of Grace payment, claims may be considered where:
§a person received incorrect advice leading to detriment, but where there is no legal liability
§a matter is covered by legislation, but its application produces a result which is unintended, anomalous, inequitable or otherwise unacceptable
§it is considered desirable to apply the benefits of proposed legislation, or
§there are other special circumstances where there may be a moral obligation to make a payment
Request for an Act of Grace payment
Requests for ‘Act of Grace payments’ can arise from almost any aspect of Commonwealth administration …
Claims for Act of Grace payments
A claim for an Act of Grace payment should first be considered under the criteria for ‘compensation for detriment caused by administrative error’. If a claim satisfies that criteria it will be determined under the compensation for detriment provisions. Claims that do not satisfy the compensation criteria may be determined under the Act of Grace provisions.”
54. The issue for Mrs Shanahan’s legal representatives is to consider whether the application of the VE Act may have produced a result which is unintended, anomalous, inequitable or otherwise unacceptable - given the difficulty of evidentiary proof to connect alcohol consumption to operational service to the death of the late Mr Shanahan, as outlined in findings I have made (see paras. 45-49). Alternatively, whether there are special circumstances where there may be a moral obligation to make a payment to Mrs Shanahan?
55. Certainly, there would be little dispute that the accepted body of psychiatric/medical knowledge on “stress” and operational service in theatres of war has made enormous advances in recent years relative to the state of knowledge that would have prevailed in 1953. This aspect needs to be considered in the light that the evidence at the hearing indicated that the late Mr Shanahan had a stoic personality when confronted with trauma.
56. I emphasise that I have no power whatsoever to order that an Act of Grace Payment be made to Mrs Shanahan. The process for such a payment is for Mrs Shanahan’s legal representatives firstly to consider whether any of the eligibility criteria may be satisfied to justify making a claim for an Act of Grace payment. The next step would be for Mrs Shanahan to make a claim to the Department for an Act of Grace payment and to request that his claim be assessed under the specified eligibility criteria that would be satisfied. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.
I certify that the preceding 56 paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed:…………………………………………..
Date of Hearing 5 November 2007
Date of Decision 10 December 2007
Counsel for the Applicant Mr PB O’Neill
Solicitor for the Applicant Files and Stibbe
Respondent Mr M Smith, departmental advocate
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