Slight and Repatriation Commission (Veterans' entitlements) - [2019] AATA 4948

Slight and Repatriation Commission (Veterans' entitlements) [2019] AATA 4948 (22 November 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/4943
Re:Gwendoline Slight
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Emeritus Professor P A Fairall, Senior Member

Date: 22 November 2019
Place:Sydney

The Tribunal decides that:
(1) the reviewable decision, being the decision of the Veterans’ Review Board made 26 April 2017, is set aside;
(2) in substitution, it is decided that the decision of the Repatriation Commission made 13 November 2015 is set aside, and the matter is remitted to the Repatriation Commission for reconsideration with directions that:
(a) Mr Slight’s death was war-caused within the meaning of the Veterans’ Entitlement Act 1988 (Cth);
(b) Mrs Slight’s application for a pension in accordance with the provisions of the Act, lodged 14 July 2015, be determined in accordance with these reasons for decision; and
(c) the effective date for commencement of payment of the pension is 17 February 2017, in accordance with section 177(2)(b)(i) of the Act.

.............................[sgd]...........................................
Deputy President J W Constance
CATCHWORDS
VETERANS’ ENTITLEMENTS – widows’ pension – application for review of decision of Veterans’ Review Board that veteran’s death was not war-caused – whether material before Tribunal points to hypothesis connecting death of veteran with circumstances of operational service – whether hypotheses raised reasonable – subarachnoid haemorrhage – hypertension – excessive alcohol consumption – Tribunal not satisfied beyond reasonable doubt that veteran’s death was not war-caused – decision under review set aside and remitted with directions
LEGISLATION
Statement of Principles concerning hypertension (No. 63 of 2013)
Statement of Principles concerning subarachnoid haemorrhage (reasonable hypothesis) (No. 67 of 2019)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Bull v Repatriation Commission [2001] FCA 1832
Collins v Repatriation Commission (2009) 177 FCR 280
Forrester v Repatriation Commission [2013] FCA 898
McKenzie v Repatriation Commission [2014] FCA 777
Re Dell and Repatriation Commission (1986) 9 ALD 596
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
REASONS FOR DECISION
Deputy President J W Constance
Emeritus Professor P A Fairall, Senior Member
22 November 2019
A: INTRODUCTION

Mrs Slight is the widow of the late veteran Mr Slight, who died on 21 February 2009.[1] Mr Slight served in the Royal Australian Air Force between 1961 and 1984.[2]
[1] Exhibit R2 at 13 and 211.
[2] Exhibit R2 at 127.
On 14 July 2015, Mrs Slight applied to the Repatriation Commission for a widows’ pension under the provisions of the Veterans’ Entitlements Act 1986 (Cth) (the Act).[3] Her application was refused by the Commission on the ground that Mr Slight’s death was not war-caused.[4] The Veterans’ Review Board affirmed this determination.[5] Mrs Slight has applied to the Tribunal to review the Board’s decision.[6]
[3] Exhibit R2 at 241.
[4] Exhibit R2 at 254.
[5] Exhibit R2 at 269.
[6] Exhibit R2 at 3.
For the reasons which follow, the Board’s decision will be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 4948
Decision Date: 22 November 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Repatriation Commission that the death of Mr Slight was not war-caused, and therefore his widow was not entitled to a pension. The applicant, Mrs Slight, sought to establish a causal link between Mr Slight's operational service and his death from a subarachnoid haemorrhage.

The court was required to determine whether the material before it pointed to a reasonable hypothesis connecting Mr Slight's death with the circumstances of his operational service. Specifically, the court considered two hypotheses: first, that Mr Slight's death was caused by hypertension, which in turn was caused by excessive alcohol consumption, used as a means of pain relief for a lower back injury sustained during service; and second, that his excessive alcohol consumption directly contributed to the subarachnoid haemorrhage. The court also had to consider whether these hypotheses were consistent with the relevant Statements of Principles concerning subarachnoid haemorrhage and hypertension.

The court found that there was material before it suggesting Mr Slight sustained a lower back injury in 1965 during his service, which led to him using alcohol for pain relief, resulting in excessive consumption. This excessive consumption was linked to hypertension, and the court considered the possibility that this hypertension contributed to the subarachnoid haemorrhage. Furthermore, the court examined evidence of Mr Slight's significant alcohol consumption, which met the threshold stipulated in the Statement of Principles for subarachnoid haemorrhage, suggesting a direct link between his drinking habits and the fatal condition.

Ultimately, the court was not satisfied beyond a reasonable doubt that Mr Slight's death was not war-caused. Consequently, the decision under review was set aside, and the matter was remitted to the Repatriation Commission for reconsideration with directions to find that the death was war-caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Slight continued to use alcohol as a means of managing the pain in his back after he returned to Australia.Evidence of Mrs Roberts, daughter of Mr and Mrs Slight Mrs Roberts provided a statement dated 28 February 2018.[19] She gave evidence at the hearing. [19] Exhibit A5. Mrs Roberts was 5 years old when she moved to Malaysia with her family. She recalls Mr Slight being in the Base Hospital lying on a spinal board in traction. This was about the time of her sixth birthday in September 1964. When she gave evidence, Ms Roberts said that she remembered her father being in hospital after the volleyball injury and that the injury in respect of which he was hospitalised was the same injury.[20] He was in hospital for about three months.[20] Transcript, 14 May 2019, at 72. Mrs Roberts recalled seeing her father drinking alcohol heavily after the family returned to Australia. At the end of Mr Slight’s posting in Western Australia (in 1970), Ms Roberts recalls seeing him “stagger from the lounge room to the bedroom on a semi-nightly basis and on the weekend”.[21] She also said that this occurred on a fortnightly basis.[22][21] Transcript, 15 May 2019, at 95.[22] Transcript, 15 May 2019, at 107. During the 1980s, Mr Slight would drink alcohol during the weekends to the point of becoming drunk. He would drink wine as well as beer. From about 1990 onwards, Mr Slight would be drunk to the point of staggering every night.[23] Ms Roberts recalls discussing her father’s excessive alcohol consumption with him in about 2002. She recalls also being concerned at the level of his alcohol consumption in January 2009.[23] Transcript, 15 May 2019, at 108.Summary of hospitalisation The records show that Mr Slight was admitted to hospital in Malaysia on 23 August 1965. The reason recorded is low back pain.[24]Claim Form completed by Mr Slight, 19 June 1984[25][24] Exhibit R2 at 41.[25] Exhibit R2 at 35. In this form, being a claim for medical treatment and a pension, Mr Slight claimed he suffered low back pain related to service. He stated that he first noticed symptoms of this condition on 23 August 1965.[26][26] Exhibit R2 at 36. In the same form, Mr Slight described his duties during service as “machinery maintenance, instructional duties, training coordinator, WOFF I/C Maintenance”.[27]Report of Dr Huntsdale, Orthopaedic Surgeon, 28 December 1984[28][27] Exhibit R2 at 38.[28] Exhibit R2 at 48. Having examined Mr Slight on referral from his general practitioner, Dr Huntsdale reported, in part:As you know in 1964 he injured his back whilst playing volley ball in Butterworth and said he had a couple of months enforced bed rest for a chip fracture of his vertebra and a “slipped disc”. Since that time he appears to have had not too much trouble at all with his back although he says he is aware of a weakness there and does not overstress himself.Report of Medical Practitioner provided to Department of Veterans’ Affairs, 5 February 1985 Mr Slight was examined on behalf of the Department in early 1985.

Decision

Reasons for decision

In the circumstances outlined above, we are not satisfied beyond a reasonable doubt that Mr Slight’s death was not war-caused.G1.5. Conclusion in relation to Hypothesis (a) Having reached the conclusion set out in the preceding paragraph, the decision under review will be set aside. In substitution, it will be decided that the decision of the Repatriation Commission made 13 November 2015 is set aside and the matter is remitted to the Commission for reconsideration with the directions set out at the conclusion of these reasons. However, if we are wrong in this conclusion we will now turn to consider an alternative hypothesis put forward by Mrs Slight. G2: Hypothesis (b) The material before us is said to point to the hypothesis that: ·Mr Slight suffered an injury to, or an aggravation of a condition of, his lower back in 1965;·he used alcohol as a means of pain relief causing him to develop a habit of excessive alcohol consumption;·his excessive alcohol consumption contributed to the subarachnoid haemorrhage which caused his death.G2.1. Does the material before the Tribunal point to a hypothesis connecting the death of Mr Slight with the circumstances of his operational service? This hypothesis is the same as the first except that it puts that there is a direct, causal link between Mr Slight’s alcohol consumption and the subarachnoid haemorrhage which caused his death. For the reasons we have set out in relation to the first hypothesis, the material before us points to the second hypothesis. G2.2. Is there a relevant Statement of Principles in force? The relevant Statement of Principles is that concerning subarachnoid haemorrhage (No.67 of 2019) to which we have referred earlier in these reasons.G2.3. Is the hypothesis consistent with the “template” within the Statement of Principles, and, therefore, a reasonable one? Clause 9 of the Statement of Principles concerning subarachnoid haemorrhage provides, in part:At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting … death from subarachnoid haemorrhage with the circumstances of a person’s relevant service:…(11)for males, consuming an average of at least 150 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of subarachnoid haemorrhage;Note: Alcohol consumption is calculated utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink. 150 grams of alcohol is the equivalent of 15 standard drinks. A litre of beer is the equivalent of 3.73 standard drinks.[68] The statement of Mrs Slight, that Mr Slight was consuming 7-10 litres of alcohol per week between 1983 and 2009,[69] is consistent with Mr Slight consuming a minimum of 26.13 standard drinks per week, well in excess of the amount referred to in clause 9(11) of the Statement.[68] Exhibit R1.[69] Exhibit R2 at 229. We have already referred to the material pointing to the onset of the subarachnoid haemorrhage occurring six days before Mr Slight’s death on 21 February 2009. The evidence of Mrs Slight, that Mr Slight was consuming 7-10 litres of alcohol per week in 2008 and 2009, together with the evidence of Ms Roberts that she was concerned at the level of his alcohol consumption in 2009, is consistent with Mr Slight having consumed that amount for a continuous period of at least the six months before the clinical onset of the subarachnoid haemorrhage.

Ratio Decidendi

Legal Principle Established

The material before us is said to point to the hypothesis that: ·Mr Slight suffered an injury to, or an aggravation of a condition of, his lower back in 1965;·he used alcohol as a means of pain relief causing him to develop a habit of excessive alcohol consumption;·his excessive alcohol consumption caused hypertension;·his hypertension contributed to the subarachnoid haemorrhage which caused his death.G1.1. Does the material before the Tribunal point to a hypothesis connecting the death of Mr Slight with the circumstances of his operational service? The material varies as to the circumstances leading to the hospitalisation of Mr Slight in August 1965 and its relation, if any, to the injury suffered by him when he was playing volleyball in 1964, just before he commenced the period of operational service. However, we are mindful that there is no fact finding exercise to be undertaken at this stage. The following material points to Mr Slight’s hospitalisation in August 1965 being connected to his operational service between 17 August 1964 and 18 May 1966:·Mr Slight required traction treatment in hospital for three months from 23 August 1965;[51]·Mr Slight first noticed symptoms of the condition (low back pain) on 23 August 1965 which he did not relate to any injury suffered by him playing volleyball 12 months earlier;[52]·the opinion of Dr Thai that the condition suffered by Mr Slight was a new injury rather than an exacerbation of a pre-existing condition;[53]·the Special Examination Record of the X-ray of Mr Slight’s lumbar spine in August 1964 which showed “no bony abnormality”;[54]·the opinion of Dr Thai that Mr Slight’s duties as a fitter in the RAAF would have included the lifting of heavy loads, bending over, twisting and laying on hard surfaces.[55][51] Exhibit R2 at 41.[52] Exhibit R2 at 36.[53] Exhibit A4.[54] Exhibit R2 at 566.[55] Exhibit A4. The material pointing to Mr Slight using alcohol as a means of pain relief and the development of a habit of alcohol consumption is as follows:·the evidence of Mrs Slight and Mrs Roberts;·the information provided by Mr Slight on the Medical History and Examination Form dated 16 March 1982;[56]·the statement of Mrs Slight that Mr Slight “started drinking heavily and in excess in 1967”[57] together with the estimates of his alcohol consumption set out in paragraph 54 of these reasons;·the evidence of Dr Thai that alcohol is a sedative which provides some pain relief.[56] Exhibit R2 at 165.[57] Exhibit R2 at 228. The material in Mr Slight’s medical records points to his having been diagnosed with hypertension no later than 14 December 1979,[58] and at the time of his death it is recorded that he was suffering from the condition for many years.[59][58] Exhibit R2 at 467.[59] Exhibit R2 at 211.G1.2. Is there a relevant Statement of Principles in force? At the time of the Repatriation Commission’s decision, and at the hearing of the present application, the Statements of Principles in force and relevant to Mrs Slight’s application were:·Statement of Principles concerning subarachnoid haemorrhage (No. 67 of 2010); and·Statement of Principles concerning hypertension (No. 63 of 2013).