Slight and Repatriation Commission (Veterans' entitlements)
[2019] AATA 4948
•22 November 2019
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 321Repatriation Commission v Keeley (2000) 98 FCR 108
REASONS FOR DECISION
Deputy President J W Constance
Emeritus Professor P A Fairall, Senior Member
22 November 2019A: 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 set aside. In substitution, it will be decided that the Repatriation Commission’s decision is set aside and the matter will be remitted to the Repatriation Commission for reconsideration with the directions set out at the conclusion of these reasons.
B: LEGISLATIVE FRAMEWORK
War-caused injury
Section 9 of the Act sets out the circumstances in which an injury is taken to be war‑caused. The relevant parts of that section are:
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;
Section 8(1)(b) provides:
War-caused death
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
Section 7(1)(a) provides:
Eligible war service
(1)Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;
Standard of proof
Section 120 relevantly provides:
Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or 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.
…
(3)In applying subsection (1) or (2) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury or a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑caused disease; or
(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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
(1)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Reasonable hypothesis and a Statement of Principles
Subsection 120A(3) provides:
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.
C: APPLYING THE LAW
In Repatriation Commission v Deledio,[7] the Full Court of the Federal Court set out the course to be taken in determining claims which arise from operational service such as this:
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.
If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] 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.
If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
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.
[7] (1998) 83 FCR 82, 97-98. The Full Court of the Federal Court has since held the last sentence in step 2 to be incorrect: Bull v Repatriation Commission [2001] FCA 1832 at [13]-[15]. However, this is not relevant to the present application.
In Forrester v Repatriation Commission,[8] Mortimer J explained what is required by the first step in Deledio as follows:
… 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.
Where the 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 judgement of Mason CJ, Gaudron and McHugh JJ in Byrnes 177 CLR 564, 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.
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.
[8] [2013] FCA 898 at [29]-[31].
D: ISSUES FOR DETERMINATION
We have to determine the following issues:
1)Did Mr Slight render “operational service”, and, if so, when?
2)What was the “kind of death” met by Mr Slight?
3)Considering all the material before the Tribunal, does it point to or support a hypothesis connecting the death with the circumstances of the operational service?
4)If such a hypothesis is raised, is there a relevant Statement of Principles in force?
5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement and, therefore, a reasonable one?
6)If so, are we satisfied beyond a reasonable doubt that the death of the late Mr Slight was not war-caused?
E: THE HYPOTHESES PUT FORWARD ON BEHALF OF MRS SLIGHT
In past matters the Tribunal has adopted the following definition of “hypothesis” from The Concise Oxford Dictionary:
“proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts”.[9]
[9] See, for example, Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615.
In deciding whether a given hypothesis arises we must consider all the material before us, not only that which supports the hypothesis: Deledio at 97.
It was put on behalf of Mrs Slight that the material before the Tribunal points to several alternative hypotheses:
(a)Mr Slight suffered an injury to, or an aggravation of a condition of, his lower back in 1965 for which he used alcohol as a means of pain relief; this caused him to develop a habit of alcohol consumption causing hypertension which contributed to the subarachnoid haemorrhage which caused his death;
(b)Mr Slight suffered an injury to, or an aggravation of a condition of, his lower back in 1965 for which he used alcohol as a means of pain relief; this caused him to develop a habit of alcohol consumption which contributed to the subarachnoid haemorrhage which caused his death;
(c)Mr Slight suffered an injury to, or an aggravation of a condition of, his lower back in 1965 for which he used alcohol as a means of pain relief; this caused him to develop a habit of alcohol consumption causing hypertension and the development of ischaemic heart disease for which he used the prescribed medication warfarin which contributed to the subarachnoid haemorrhage which caused his death;
(d)Mr Slight’s excessive alcohol consumption was caused by his service in Malaya which caused hypertension followed by the subarachnoid haemorrhage which caused his death;
(e)as a result of his service in Malaya, Mr Slight inhaled second-hand cigarette smoke which caused ischaemic heart disease which contributed to atrial fibrillation for which he used the prescribed medication warfarin which contributed to the subarachnoid haemorrhage which caused his death.
E: DETERMINATION OF THE FIRST AND SECOND ISSUES
Issue 1: Did Mr Slight render operational service and if so, when?
It is not in dispute, and we are satisfied, that Mr Slight rendered operational service between 17 August 1964 and 18 May 1966.[10]
[10] Exhibit R2 at 130 read together with Exhibit R2 at 127.
Issue 2: What was the kind of death met by Mr Slight?
In Collins v Repatriation Commission,[11] the Full Court of the Federal Court said:
To proceed to determine whether an injury or a disease is war caused, it is first necessary to consider the nature of the injury or the disease. Its nature is a question of fact, based upon the medical diagnosis and other evidence. As noted, generally that is not contentious. Similarly, to proceed to determine if a death is war-caused, it is first necessary to determine the cause or causes of the death. That too is a question of fact, based upon the medical diagnosis and other evidence. Without identifying the cause or causes of death, it is not possible to determine if the death is war-caused. … It is the foundation for applying s 120, and where appropriate s 120A, to the question of whether it is war-caused. Section 120(1) directs how the decision-making process on the issue of causation is to be made in relation to a claim for a pension in respect of incapacity from injury or disease of a veteran, or the death of a veteran. It thereby ties to, and follows from, the first issue, namely the nature of any relevant injury, disease or death.
[11] (2009) 177 FCR 280 at 288-289 [45].
On the basis of the death certificate issued in respect of Mr Slight, and the report of Dr Herman,[12] we are satisfied that the cause of Mr Slight’s death was subarachnoid haemorrhage.[13] This is not in dispute.
[12] Exhibit A3 at 2.
[13] Exhibit R2 at 211.
The remaining issues
We will consider the remaining issues in relation to the individual hypotheses put forward by Mrs Slight.
F: MATERIAL BEFORE THE TRIBUNAL
Mr Slight’s date of birth
Mr Slight was born on 13 February 1931.[14]
[14] Exhibit R2 at 35.
Evidence of Mrs Slight
Mrs Slight provided statements dated 7 November 2017[15] and 28 November 2018[16] and gave evidence before the Tribunal.
[15] Exhibit A1.
[16] Exhibit A2.
Mr and Mrs Slight met in 1952 and married in 1954. Mr Slight served in the Royal Australian Air Force from 18 May 1961 until 21 May 1984.
Mr Slight was usually quiet and stoic by nature and did not complain when he was in pain. Mrs Slight could tell when he was in pain by his behaviour, which became withdrawn and distant.
Mr Slight did not drink alcohol before joining the Air Force. After joining he began to drink socially in the mess. The culture of the Air Force encouraged him to drink alcohol.
Before he was posted to Malaysia, Mr Slight was a social drinker who would drink at the mess around pay day. At the time of his posting he was not a heavy drinker.
When Mr Slight was posted to Malaysia in 1963, Mrs Slight and their three children moved with him. Although Mrs Slight did not recall the exact dates of the family’s arrival in, and departure from, Malaysia there is material before us that Mr Slight served in Malaysia from 12 December 1963 until 21 May 1966.[17]
[17] Exhibit R2 at 38 read with Exhibit R2 at 127.
In 1965, Mr Slight was hospitalised for three months for back pain when he was serving in Malaysia. Mrs Slight does not recall any particular incident directly prior to Mr Slight’s admission to hospital. While he was hospitalised he had to lie on a board. He used alcohol to self-medicate and dull the pain and his frustration.
Mr Slight hurt his back about a year prior to his hospitalisation when he was playing volleyball. Mrs Slight is uncertain as to why the pain worsened in 1965 which resulted in his hospitalisation.
The family returned to Australia from Malaysia in 1966. At that time, Mr Slight believed that he had been treated poorly by the doctors and hospitals; he expressed reluctance to see doctors because he believed they would tell him that there was nothing wrong with him. After his return to Australia, Mr Slight began drinking heavily. He had not done so previously. To describe Mr Slight as “staggering” as a result of the effects of alcohol was “a little bit exaggerated”.[18]
[18] Transcript, 15 May 2019, at 109.
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.
The Medical Practitioner, whose name is unclear on the document, reported in part:
His mild Hypertension is related to his atherosclerosis and obesity and is not due to his service, not aggravated by it.[29]
[29] Exhibit R2 at 57.
Mr Slight’s claim for Disability Pension and Medical Treatment, 8 March 1992
In this claim form Mr Slight responded to a request to provide details of any accidents, injuries or illnesses he suffered during service as follows:
5 lumbar (L5 – S1) caused by bad fall during volley ball game (Malaya) 1964.[30]
Report of Dr Padgett, General Practitioner, 17 November 2004[31]
[30] Exhibit R2 at 70.
[31] Exhibit R2 at 144.
In a report to the Department of Veterans’ Affairs, Dr Padgett gave a diagnosis of Mr Slight’s condition as “long history of low back pain, dating from his service in Malaysia in the 1970’s when he fell. Developed crush fractures in 2 vertebrae in 2002 when fell [sic] in the shower”.
Evidence of Dr Thai, Occupational Physician
Dr Thai assessed the records relating to Mr Slight, including his service medical records. He provided a report dated 14 September 2018[32] and gave evidence at the hearing.
[32] Exhibit A4.
Dr Thai reported, in part:
In respect to Mr Slight’s back injury in July 1964, the medical records would suggest that Mr Slight sustained a musculoligamentous sprain injury to the lumbar spine.
There is documentation of a recurrence of lower back pain for which he was hospitalised from 23 August 1965 until 16 October 1965. The exact cause for the recurrent back pain is unclear. There is a lack of contemporaneous medical records around this period.
However, on balance of medical probability, Mr Slight’s symptoms would be considered a new injury around 23 August 1965 rather than an exacerbation of a pre-existing condition.
My reasoning is as follows:
There is evidence that Mr Slight sustained a musculoligamentous sprain injury in July 1964.
It appears that Mr Slight returned to service and maintained normal duties until August 1965.
Given that Mr Slight returned to his normal duties, one would reasonably deduce that his symptoms and musculoligamentous sprain of July 1964 had resolved.
Therefore, Mr Slight’s recurrence of symptoms in August 1965 would be considered a new injury rather than an exacerbation of his July 1964 injury.
…
Having reviewed the file material, I was unable to determine the exact nature of Mr Slight work duties.
However, if Mr Slight had been operational during his time in the Royal Australian Air Force, one would reasonably expect that Mr Slight would have been required to occasionally lift heavy loads, bend over, twist and lay down on hard surfaces.[33]
[33] Exhibit A4 at 4.
Dr Thai gave evidence that Mr Slight’s work as a fitter could have involved awkward lifting and the use of power tools which could have aggravated or caused an acute injury. He also said that as alcohol is a sedative, its use will provide some pain relief.
Dr Thai further expressed the opinion that there was no clear evidence that Mr Slight suffered from a degenerative spinal condition in 1964. At the time he was 33 years old. He noted that an X-ray report in August 1964 stated that there was “no bony abnormality”.[34]
[34] Exhibit R2 at 566.
Evidence of Dr Herman, Consultant Cardiologist
Dr Herman conducted a review of the papers in this matter. He provided a report dated 26 April 2018[35] and gave evidence at the hearing. In his report he stated:
The date of the subarachnoid haemorrhage appears to have occurred around 11th February 2009 when he presented with a significant headache which was, most likely, the precursor of the significant bleed thereafter.[36]
[35] Exhibit A3.
[36] Exhibit A3 at 2.
Mr Slight was suffering from hypertension by 1983 as he recorded recurrent blood pressure readings in excess of 140/90.[37]
[37] See Exhibit A3 at 3 and Transcript, 14 May 2019, at 33.
Material regarding Mr Slight’s blood pressure
The following readings are recorded in Mr Slight’s medical records:
Date Reading 18 May 1961 124/86 (reading on enlistment) 26 September 1963 140/90 November 1969 110/70 December 1970 120/100 11 December 1970 170/102 16 December 1970 150/100 4 January 1971 160/110 18 January 1971 150/100 26 February 1971 131/90 12 March 1971 170/110 27 September 1971 140/90 23 December 1971 140/100 26 April 1972 140/90 27 June 1972 150/100 4 July 1972 145/95 2 August 1972 150/100 16 August 1972 125/90 20 September 1972 130/90 11 October 1972 130/90 28 October 1972 125/80 22 November 1972 125/80 4 December 1972 140/90 22 August 1973 130/85 23 October 1973 160/95 29 November 1973 130/85 10 July 1974 150/100 21 August 1974 130/90 27 September 1974 150/100 14 November 1974 160/110 15 November 1974 145/90 7 March 1975 150/70 29 May 1975 130/90 7 July 1975 130/90 23 October 1975 148/100 27 January 1976 140/90 7 March 1976 138/70 21 June 1976 140/85 7 June 1977 150/100 21 November 1977 160/110 7 March 1978 150/100 28 April 1978 150/110 19 June 1978 140/88 9 August 1978 140/100 16 August 1978 110/80 29 September 1978 150/100 27 October 1978 130/85 12 December 1978 130/85 11 May 1979 150/100 2 July 1979 160/100 28 August 1979 155/100 4 September 1979 135/90 9 October 1979 140/95 4 December 1979 150/110 14 December 1979 150/100 (diagnosis of hypertension)[38] 30 January 1980 140/100 16 May 1980 150/98[39] [38] Exhibit R2 at 467.
[39] Exhibit R2 at 17, 27, 276, 467, 469, 470, 472, 473, 476, 478, 479, 480, 481, 484, 487, 489, 491 and 562.
Further material as to Mr Slight’s consumption of alcohol
Medical History and Examination Form, 16 March 1982
On 16 March 1982, Mr Slight reported that he consumed 1 dozen cans of beer per week.[40] This is equivalent to 16.8 standard drinks per week.[41]
[40] As recorded by a claims assessor from the Department of Veterans’ Affairs in a Minute dated 7 June 2005: Exhibit R2 at 165.
[41] Exhibit R1.
Clinical Notes of Dr Padgett, General Practitioner
These notes contain the following entries concerning Mr Slight’s alcohol consumption:
·8 August 2005 – Discussed alcohol intake – admits to 4-5 glasses “dry white” wine per day;[42]
·1 November 2006 – No recent change to … alcohol intake (drinks a stubbie of Lite Ice and 3 glasses of dry white each day). Gets through a 4 litre cask of wine within 7 days;[43]
·4 April 2007 – Urged to reduce his alcohol (but I don’t think he will take any notice of this);[44]
·7 June 2008 – Drinks white wine (5l cask each week); also has one lite beer each day);[45]
·11 July 2008 – Blood alcohol level on admission [to hospital] 0.19;[46]
·8 December 2008 – Does have some tremor (say, when he is driving) – probably a long term consequence of his previous alcohol intake.[47]
[42] Exhibit R2 at 262.
[43] Exhibit R2 at 263.
[44] Exhibit R2 at 344.
[45] Exhibit R2 at 348.
[46] Exhibit R2 at 349.
[47] Exhibit R2 at 354.
Department of Veterans’ Affairs Alcohol Questionnaire, 26 July 2010
In completing this form, Mrs Slight stated that Mr Slight “started drinking heavily and in excess in 1967. Robert started drinking heavily after he sustained a back injury in Malaya in 1964, for which he spent 3 months in traction at B’W [Butterworth] Hospital. When he was posted to Pearce RAAF [Western Australia] he would go to the local vineyards or the mess & drink or bring it home and drink till he passed out”.[48]
[48] Exhibit R2 at 227-228.
In the same form, Mrs Slight set out the following table in response to a request that she record any major changes in Mr Slight’s drinking habit:
Date of Change
New amount consumed
Reason for Change
1971-1983
≥ 4-8 litres per week
Multiple bypasses and back pain & PTSD
1983-2009
≥ 7-10 litres per week
Declined in physical health, PTSD & depression
Historical Research Report, 13 February 2018[49]
[49] Exhibit A6.
Major Hawke, Military History Researcher, reported on the culture of drinking and alcohol consumption to which Mr Slight was likely to have been exposed during his period of occupational service. He included the following excerpt from what he described as “a document which was prepared to outline the availability of alcohol to Australian soldiers on overseas service in Malaya, Malaysia and Vietnam”:
There was no restriction on the consumption of alcohol (beer & spirits) for soldiers serving in these areas when not engaged on field operations or training.
Alcohol was freely available from the unit messes … at duty free prices. The service population generally consumed the majority of their alcohol in messes on the military bases, as the cost of drinks off base in civil licensed premises was considerably more expensive.
…[In] addition to having unfettered access to duty free alcoholic drinks dispensed at messes, servicemen were also issued with a Duty Free card which enabled them to purchase 2 cartons of cigarettes, 2 litres of spirits or 2 cases of beer each month for consumption elsewhere, such as in married quarters.
When on operations in Malaya (during the Emergency), … soldiers were provided with free issues of 50 cigarettes every 2 days, and a toddy of rum each evening.
It is fair to say that binge drinking was commonplace amongst all ranks posted to the Far East as social drinking was part of the military culture of that era. Organised activities such as inter-unit sports, military training, and other extra-curricular events usually culminated in alcohol being consumed.[50]
G: CONSIDERATION OF THE REMAINING ISSUES
[50] Exhibit A6 at 6-7.
G1: Hypothesis (a)
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).
At the time of the hearing, it was not in dispute that each of these Statements related respectively to the kind of death suffered by Mr Slight.
Since the hearing, however, those Statements of Principles have been repealed and amended, respectively.
The following Statements of Principles are currently in force and relevant to the kind of death suffered by Mr Slight:
·Statement of Principles concerning subarachnoid haemorrhage (reasonable hypothesis) (No. 67 of 2019); and
·Statement of Principles concerning hypertension (No. 63 of 2013), which includes amendments up to Amendment Statement of Principles concerning hypertension (No. 89 of 2019).
Owing to the decision of the Full Court of the Federal Court in Repatriation Commission v Gorton,[60] we have approached the question of Mrs Slight’s entitlement to the pension by reference to the Statements of Principles in force at the date of our decision, being No. 67 of 2019, and No. 63 of 2013 as amended. It is only if Mrs Slight is unsuccessful by reference to the current Statements of Principles that it will then be necessary to assess Mrs Slight’s claim by reference to the superseded Statements of Principles.[61]
[60] (2001) 110 FCR 321.
[61] Repatriation Commission v Keeley (2000) 98 FCR 108.
Each Statement provides that the Repatriation Medical Authority “is of the view that there is sound medical-scientific evidence that indicates that” death from each of the respective conditions “can be related to relevant service rendered by veterans…”.[62]
G1.3. Is the hypothesis consistent with the “template” within the Statements of Principles, and, therefore, a reasonable one?
[62] Statement of Principles concerning subarachnoid haemorrhage (reasonable hypothesis) (No. 67 of 2019), cl 8, and Statement of Principles concerning hypertension (No. 63 of 2013), which includes amendments up to Amendment Statement of Principles concerning hypertension (No. 89 of 2019), cl 4.
In McKenzie v Repatriation Commission,[63] the Federal Court considered the effect of the following finding by the Tribunal in relation to its consideration under the third step in the Deledio process:
Although Mrs McKenzie said that she believed Mr McKenzie was a moderate smoker and that in her mind moderate was equivalent to smoking about 20 cigarettes per day, this was speculation on her part. She said that she did not know how many cigarettes Mr McKenzie smoked and properly raised the rhetorical question, how could I know?
[63] [2014] FCA 777 at [30], quoting Re McKenzie and Repatriation Commission [2013] AATA 216 at [60].
The Court held that the Tribunal erred in concluding, at the third step of the Deledio process, that part of the evidence of the applicant in that case was “speculation”. The Court said (at [65]):
… the Tribunal’s conclusion (at [59]) that there is “no material” pointing to Mr McKenzie having smoked the required minimum quantity of cigarettes and/or other tobacco products must be seen as a rejection of Mrs McKenzie’s evidence that he expressly told her that he smoked 10-15 cigarettes per day. The Tribunal’s conclusion (at [60]) that Mrs McKenzie did not know how many cigarettes Mr McKenzie smoked and that her evidence as to his cigarette consumption was “speculation” must also be seen as a rejection of that evidence. These conclusions indicate that the Tribunal evaluated and selectively dealt with the material before it, and that it was finding facts rather than simply identifying the raised facts.
(Citation omitted.)
In this matter, some of the material before us is conflicting. That material, however, is not to be evaluated when considering whether a particular hypothesis is consistent with the template in a relevant Statement of Principles.
Subarachnoid Haemorrhage
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:
…
(3)having hypertension before the clinical onset of subarachnoid haemorrhage;
Clause 11 provides:
In this Statement of Principles:
(1)if a factor referred to in section 9 applies in relation to a person; and
(2)that factor refers to an injury or disease in respect of which a Statement of Principles has been determined under subsection 196B(2) of the VEA;
then the factors in that Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
The material contained in Mr Slight’s death certificate that (a) he suffered a subarachnoid haemorrhage six days prior to his death and (b) at the time of his death, and for many years previously, he was suffering from hypertension is consistent with subclause 9(3) of the Statement of Principles.
Hypertension
Clause 5 of the Statement of Principles concerning hypertension provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 6 provides, in part:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service is:
…
(b) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension;
Clause 8 provides:
In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
Clause 9 provides, in part:
“alcohol” is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;
Mr Slight’s medical records point to the clinical onset of his hypertension occurring no later than December 1979, at which time a diagnosis is recorded. The aforementioned Alcohol Questionnaire completed by Mrs Slight points to Mr Slight consuming 4-8 litres of alcohol per week in the period 1971-1983. This is in excess of 300 grams of alcohol per week.
The hypothesis is consistent with the template in that the material points to the factor in subclause 6(b).
Reasonable hypothesis raised
Taking into account the material pointing to the connection between Mr Slight’s operational service and his excessive alcohol consumption, to which we have already referred, a reasonable hypothesis is raised connecting the onset of hypertension in 1979 and the circumstances of Mr Slight’s operational service in 1965.
G1.4. Are we satisfied beyond a reasonable doubt that the death of Mr Slight was not war-caused?
The first question to be considered is whether we can be satisfied beyond a reasonable doubt that Mr Slight’s excessive consumption of alcohol was not related to his operational service.
It was argued on behalf of the Commission that the condition for which Mr Slight was hospitalised and for which he started using alcohol for pain relief, was caused by the injury he suffered while playing volleyball in 1964. This was prior to his period of operational service. However, in view of the evidence of Dr Thai, we are not satisfied that this was the case. His evidence raises a reasonable doubt that Mr Slight was hospitalised in 1965 for a new injury suffered as a result of the nature of his duties as an aircraft fitter carried out during his operational service.
Turning to the quantities of alcohol consumed by Mr Slight from 1965 onwards, the evidence varies, particularly that of Mrs Slight. We are not to be taken to suggest that Mrs Slight was anything other than an honest witness who gave her evidence to the best of her recollection. However, it is likely that her recollection has been clouded by the passage of time.
Mrs Slight gave evidence that Mr Slight began drinking heavily after the family returned from Malaysia, but not to such an extent that he staggered while walking. However, in the Alcohol Questionnaire, Mrs Slight said that when they lived in Western Australia Mr Slight would drink until he passed out. When she gave evidence at the hearing she said that Mr Slight “was never a drunk”.[64]
[64] Transcript, 14 May 2019, at 18.
Ms Roberts gave evidence that Mr Slight drank “a lot” during the entirety of her childhood, which included when the family lived in Malaysia.[65] She also gave evidence that during the 1980s Mr Slight would regularly start drinking around 4pm “and then drink subsequently after that until oblivion”.[66] In addition, the quantities of alcohol Mrs Slight recorded as being consumed by Mr Slight between 1964 and 2009 indicate a substantial increase in consumption over that period.[67]
[65] Exhibit A5 at [15].
[66] Transcript,15 May 2019, at 96.
[67] Exhibit A2 at 229.
Having considered all of the evidence, and taking into account the variation in the evidence as to the extent of Mr Slight’s drinking, we are not satisfied that Mr Slight’s alcohol consumption did not contribute to his death in the manner set out in the hypothesis.
We are satisfied that Mr Slight’s alcohol consumption contributed to his suffering hypertension by no later than 1979 and that this condition contributed to his suffering a subarachnoid haemorrhage which caused his death.
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.
We conclude that the second hypothesis is consistent with the template within the relevant Statement of Principles.
G2.4. Are we satisfied beyond a reasonable doubt that the death of Mr Slight was not war-caused?
For the reasons already stated in connection with the first hypothesis, we are not satisfied beyond a reasonable doubt that Mr Slight’s death was not war-caused.
G3: The remaining hypotheses
In view of the conclusions we have reached above we consider it unnecessary to address the remaining hypotheses put forward by Mrs Slight.
H: CONCLUSION
The reviewable decision, being the decision of the Veterans’ Review Board made 26 April 2017, will be set aside.
In substitution, the decision of the Repatriation Commission made 13 November 2015 will be set aside.
The matter will be 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.
I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Emeritus Professor P A Fairall, Senior Member
........................................................................
Associate
Dated: 22 November 2019
Dates of hearing: 14 and 15 May 2019 Date final submissions received: 31 May 2019 (Applicant); 31 May 2019 (Respondent) Counsel for the Applicant: Mr T Saunders Solicitors for the Applicant: Kemp & Co Lawyers Solicitors for the Respondent: Mr K Eskerie of Sparke Helmore Lawyers
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