Spies and Repatriation Commission (Veterans' entitlements) - [2020] AATA 2580

Spies and Repatriation Commission (Veterans' entitlements) [2020] AATA 2580 (31 July 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/1017
Re:Therese Spies
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:31 July 2020
Place:Brisbane

The Tribunal affirms the decision under review.
................[SGD]........................................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – whether death was war caused –Statement of Principles concerning hypertension – alcohol consumption – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
STATEMENT OF PRINCIPLES
Statement of Principles concerning hypertension No. 63 of 2013 (as amended) (Cth)
CASES
Budge and Repatriation Commission [2014] AATA 276
Bull v Repatriation Commission [2001] FCA 1832
Cairns and Repatriation Commission [2013] AATA 742
Collins v Repatriation Commission [2009] FCAFC 90
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 74 ALR 518
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Higgins and Repatriation Commission [2013] AATA 630
Hill v Repatriation Commission [2005] FCAFC 23; (2005) 85 ALD 1
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Hill [2002] FCAFC 192
Robertson v Repatriation Commission (1998) 50 ALD 668
Willman and Repatriation Commission [2007] AATA 1480
REASONS FOR DECISION
Member D Mitchell
31 July 2020
INTRODUCTION

Mrs Therese Spies (the Applicant) made a claim for a war widow’s pension on 22 September 2016[1] on the basis that the death of her husband, the late Mr Kevin Spies (the Veteran) was war-caused under the Veterans’ Entitlement Act 1986 (Cth) (the Act). The Veteran was not in receipt of a pension under the Act prior to his death.
[1] Exhibit 1, T Documents, T5, pages 16-25, Claim for War Widow’s Pension.

On 7 February 2017, the Respondent determined that the death of the Veteran was not service related.[2] This decision was affirmed by the Veterans Review Board (the VRB) on   28 November 2017.[3]
[2]     Exhibit 1, T Documents, T7, pages 27-29, Determination dated 7 February 2017.
[3]     Exhibit 1, T Documents, T13, pages 40-46, Reviewable Decision dated 7 December 2017.
On 28 February 2018, the Applicant sought review of the VRB decision by this Tribunal.[4]
[4] Exhibit 1, T Documents, T2, pages 3-11, Application for Review of Decision.
The Veteran served in the Royal Australian Air Force during World War II having enlisted on 13 November 1942 as an Aircraftman.[5] He was promoted to the rank of Leading Aircraftman on 1 September 1943.[6] He served in the Northern Territory between 28 February 1944 and 15 January 1945.[7] It is reported that the Veteran:[8]
[5]     Exhibit 1, T Documents, T14, pages 47-48, Statement of Service.
[6]     Exhibit 1, T Documents, T14, page 47, Statement of Service.
[7]     Exhibit 1, T Documents, T14, page 48, Statement of Service.
[8]     Exhibit 1, T Documents, T14, page 48, Statement of Service.
Departed the mainland of Australia on temporary duty on 18.2.44 and returned to the mainland on 22.2.44. Departed the mainland of Australia on 23.2.44 and returned to the mainland on 28.2.44 as per Personnel Occurrence Report records held by this office. It is not recorded where the veteran served overseas.
The Veteran’s service in World War II is considered to be operational service.
The Veteran discharged from the Royal Australian Air Force on 9 January 1946.[9]
[9] Exhibit 1, T Documents, T14, page 48, Statement of Service.
The Veteran was born in October 1924 and was 91 years of age when he passed away on 16 April 2016. The cause of death as stated in his Death Certificate was (1) Metastatic prostate cancer and (2) Chronic renal failure. The duration of the said causes was not completed.[10]
[10] Exhibit 1, T Documents, T5, page 25, Death Certificate of the Veteran.
The Applicant relies on the Statement of Principles concerning hypertension No.63 of 2013 (as amended) (Cth) (Hypertension SoP) contending that the Veteran’s hypertension was a contributing factor to his death and that it was contributed to by the Veteran’s level of alcohol consumption that arose out of or was attributable to his operational service.
THE LAW

Section 13 of the Act provides that where the death of a veteran is war-caused the Commonwealth is liable to pay a pension to the dependants of the veteran. A dependent is defined to include ‘the partner’ or ‘a widow’.[11] Relevantly in this matter a ‘widow’ includes a woman who was legally married to the veteran immediately before the veteran’s death.[12]
[11] Section 11(1) of the Act.
[12] Section 5E of the Act.
Section 8 of the Act defines when the death of a veteran is taken to be a war-caused death. Relevantly section 8(1)(b) provides that the death of a veteran shall be taken to have been war-caused if it arose out of, or was attributable to, any eligible war service rendered by the veteran.
Section 7 of the Act provides that a person who has rendered operational service shall be taken to have rendered eligible war service while the person was rendering operational service.
Where a claim for a pension is made that relates to a veteran who has performed operational service, the determination of whether the veteran’s death was war-caused is to be made by applying the ‘reasonable hypothesis’ standard of proof as set out in sections 120 and 120A of the Act.
Relevantly sections 120(1) and 120(3) of the Act provide that:
(1)… 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.
(2)…
(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:
...
(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.
Section 120A of the Act provides how a hypothesis must be assessed:
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffering 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 section 196B(2) or (11); or
...
that upholds the hypothesis.
Statement of Principles (SoP) are determined by the Repatriation Medical Authority (the Authority).[13] If the Authority is of the view that, based on available sound medical-scientific evidence, it is more probable than not that a particular kind of injury, disease or death is related to the relevant service rendered by the veteran it must determine a SoP setting out the factors that must exist and which of those factors must be related to service rendered by a person.[14]
[13] Established by section 196A of the Act.
[14] Sections 196B(2) and (3) of the Act.
A factor causing or contributing to an injury, disease or death is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in section 196B(14) of the Act. For the purpose of this application the circumstance being relied on by the Applicant is that provided by section 196B(14)(b): “it arose out of, or was attributable to, that service”.
The Hypertension SoP relates to hypertension and death attributable to hypertension. It sets out at clause 3 that for the purposes of the SoP “hypertension” means persistently elevated blood pressure, diagnosed by a medical practitioner and evidenced by:
(i)a usual clinic blood pressure reading of greater than or equal to 140 mmHg systolic or greater than or equal to 90 mmHg diastolic, or equivalent levels using ambulatory blood pressure measurement; or
(ii)a usual home blood pressure reading of greater than or equal to 135 mmHg systolic or greater than or equal to 85 mmHg diastolic; or
(iii)for persons aged under 18, a usual systolic or diastolic blood pressure reading of greater than or equal to the 95^th centile for age and sex; or
(iv)the regular administration of antihypertensive therapy to reduce blood pressure.
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia, gestational hypertension or medications.

The Hypertension SoP provides that at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.[15]
[15] Clause 5 of the Hypertension SoP.
Relevant to this application, clause 6 of the Hypertension SoP provides:
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; or
….
(r) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical worsening of hypertension; or
…

The role and application of SoPs are usefully explained in the observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:
It is necessary to repeat that the SoP has no function in relation to proof or disproof (under s120(1)) of the particular facts of a veteran’s case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994 at 1808) the SoPs were intended to ‘provide the template within which the individual’s claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
The principles followed in deciding whether a death is “war-caused” for the purposes of sections 8, 13 and 120 of the Act was established on appeal by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) at [97-98] 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)...
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 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 the 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...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.
The principles in Deledio have been widely accepted and applied, however with the understanding that they do not apply in substitution of the application of the relevant provisions of the Act.[16] There are also a number of preliminary issues that the Tribunal must consider prior to applying the Deledio principles. These preliminary issues were explained by Mansfield, Stone and Edmonds JJ in Collins v Repatriation Commission [2009] FCAFC 90 (Collins) at [80]:
[16]    Hill v Repatriation Commission [2005] FCAFC 23; (2005) 85 ALD 1 at 16-17; Dunlop v Repatriation Commission [2003] FCAFC 201 at [33].
It is common ground that there are necessarily antecedent inquiries before applying ss120 and 120A as explained by the ‘Deledio principles’. They are:
1.   whether the claimant was a veteran, or a dependant of a deceased veteran;
2.   whether the veteran has suffered an injury or disease or has died...; and
3.   the cause of death or the ‘kind of death’ of the veteran...

These preliminary matters are to be determined on the balance of probabilities or to the reasonable satisfaction of the Tribunal.
ISSUES

The issue to be determined by the Tribunal are:
(a)Was the Applicant a dependant of the Veteran;
(b)What ‘kind of death’ did the Veteran suffer;
(c)Whether there is a Statement of Principles (SoP) in force in relation to that ‘kind of death’; and
(d)Whether the ‘kind of death’ suffered by the Veteran was war-caused.
EVIDENCE

The Tribunal notes that throughout the course of the application process the grounds on which the Applicant relies to establish that the Veteran’s death was war-caused has changed. As such the decision of the VRB and some of the initial evidence focused on the circumstances and cause of the Veteran’s malignant neoplasm of the prostate. To the extent that evidence related solely to the previous line of argument its relevance is limited and not discussed. The Applicant’s amended Statement of Facts, Issues and Contentions[17], which was confirmed at the Hearing by her Counsel provides that she was now relying on the circumstances and cause surrounding the Veteran’s chronic renal failure and the Hypertension SoP.[18]
[17] Exhibit 4, Applicant’s Amended Statement of Facts, Issues and Contentions filed on 18 November 2019.
[18] Transcript, page 2.
Applicant’s Evidence

The Applicant stated in an Alcohol Questionnaire dated 30 August 2017 that:[19]
[19] Exhibit 1, T Documents, T11, pages 36-38, Alcohol Questionnaire.
·She first met the Veteran in 1977.
·The Veteran commenced consuming alcohol in 1942.
·She did not know how much alcohol the Veteran drank however during their marriage he many times drank to excess and would get quite drunk.
·In relation to whether there were any significant changes to the amount of alcohol the Veteran drank after he first started drinking alcohol:
o From 1946, “He told me he would drink excessive amount of beer and spirits and often be quite drunk.” The reasons for the change are listed as “His war service”.
o From 1977, “10 bottles of red wine and or champagne per week plus approximately 10 spirits per week.” The reasons for the change are listed as “This what he was drinking after we established a friendship.”
o From 2000, “1-2 bottles of wine per week, about 2 spirits per week.” The reasons for the change are listed as “He bought a limousine business and needed to make sure he wasn’t affected by alcohol.”
In a statement accompanying the Alcohol Questionnaire the Applicant provided that the Veteran told her he first started to drink alcohol on joining the Air Force and this increased as his service experiences increased. She provided: “He often spoke to me about his fears and the anxiety and stress from his war service and that he used alcohol to relieve his anxiety and fears.”[20]
[20] Exhibit 1, T Documents, T12, page 39, Statement of the Applicant dated 6 September 2017.
In a written statement filed on 12 July 2018, the Applicant provided:[21]
[21] Exhibit 5, Statement of the Applicant filed on 12 July 2018.
…
3. [The Veteran] was a gunner and a Leading Aircraftman. In that capacity he had great difficulty in accepting that he would be forced to shoot at others when commanded to do so. He was shaken by the reality that friends had not come back from an aircraft raid. He would not `spill his guts' - as the saying goes - after a few drinks but when we were drinking and relaxing alone together, he would voice the anxiety and despair that he had owing to his time in the RAAF during the war. He would only talk about it when he was drinking and these emotions about the War, which were otherwise interned, came to the surface for a relatively small period of my life with him. Alcohol consumption was a feature, to both allow him to talk about, and then deal with, these heavy reflections over the loss of life.
4. Of course, with the drinking came the increase in smoking that was part of his armory when talking about his time in the War, and again, he always associated his time in the RAAF with the reason that he ever started smoking at all. It was a tool for relieving the stress and anxiety associated with, `what's next?' when they were in Darwin during the War.
5. Similarly, with his drinking, he maintained that he only started drinking when he first went to Darwin - as his father was very strict and he came from a conservative family who lived in Auburn, NSW. I think that money was too tight then, after the depression, to spend it on alcohol for recreational pursuits.
6. [The Veteran] said that when he joined the RAAF drinking was part of the RAAF culture. There was drinking on Base; there were night missions and uncertainty as to what was going on with the next (night) mission. During down times they would have a drink and smoke as part of their R and R.
7. …[the Veteran] talked less as time went on but he did say that smoking and drinking was a great stress reliever. This was in direct reference to the war - as I dealt with any general house-hold issues and family crises that arose from time to time.
At Hearing the Applicant appeared in person and gave evidence under affirmation. The Applicant:[22]
[22] Transcript, pages 7-9.
·Confirmed that her written statement (referred to as Exhibit 5) was true and correct to the best of her knowledge.
·Said, she did not fill in the alcohol questionnaire, however she provided the information.
·Clarified that the Veteran was not drinking ten bottles of wine a week when she met him, rather that is what they would consume together and that he would also have his whiskey.
·Confirmed that she told the VRB the following information (as written in the VRB decision)[23] and that it was true and correct:
[23] Exhibit 1, T Documents, T13, pages 43-44, Reviewable Decision dated 7 December 2017.
o She met the veteran in 1977. At that time, he drank quiet heavily; a bottle of wine a day plus whisky. When she met him, he was about 54. From comments he made she gathered that he drank even more heavily when he was in his 30s and 40s.
o When she first met the veteran he often drank with a friend who was also an ex-serviceman.
o Initially she and the veteran were just friend and he spoke to her about his war service. He said that he flew as a rear gunner out of Darwin. He said that he never knew what would happen when the plane went out on patrol. He was eighteen or nineteen at the time. He spoke about people he knew who had died on service with the Air force.
o The veteran told her he started drinking during his war service.
o As the veteran grew older he spoke to his children about his service and made it clear that he never wanted any of them to go through what he had experienced.

On cross-examination, the Applicant:[24]
[24] Transcript, pages 9 to 14.
·Confirmed that when she first met the Veteran in 1977, he was consuming a lot of alcohol.
·Confirmed that she has no personal experience of what the Veteran’s alcohol consumption would have been during the period from the end of the War, 1945 up to 1977 other than what he had told her.
·Confirmed that was a period of 32 years and that the Veteran was married during that time.
·Said the Veteran was working part time as an optical rep, after they moved to Queensland, he did not work for some time but then worked as an optical rep probably two to three days a week, wholesaling to optometrist.
·Confirmed that in all the evidence she provided she had not mentioned the effect of the Veteran’s alcohol consumption on his health or impacted on his day-to-day activities.
·Confirmed they had purchased a limousine service in 2000.
·Confirmed that in the period from 1977 to 2000 the Veteran’s pattern of drinking was at least a bottle of wine at night by himself plus a third of a bottle of whiskey and that she said that this did not have any impact upon his health or ability to carry out his daily activities during that time.
·Said the Veteran bought the limousine business to find himself a job and that between them they had the limousine on the road almost 24/7.
·Said that the shifts they worked were between 10 and 12 hours, which could start at 4.30 in the morning. During the week after that daytime shift the limousine would come off the road but on Friday and Saturday it would be on the road 24/7.
·When asked if whether the Veteran’s alcohol consumption affected his ability to do his job with the limousine, said that it did not as very little alcohol was consumed in that time because when you are on the road that many hours you frequently come across random breath testing units and they had discussed that a lot before they took over the business. Neither of them could drink they had to have zero alcohol consumption.
·Said that during that period they still had a drink on a Sunday, a couple of bottles of champagne and probably some whiskey and a Bloody Mary. The Veteran was not drinking every day at that time. Some nights they may have had a whisky together but not every night.
·In relation to her statement confirmed that the Veteran had told her that he was a gunner, had great difficulty in accepting that he would be forced to shoot at others when commanded to do so and that this caused him stress.
·Said that the Veteran’s memory was vague, but he said he had gone out a couple of times on missions in an aircraft as an aircraft gunner.
·When referred to Major Hawkes report and that it said that the Veteran was an Aircraftman who did repairs to military aircraft, said she cannot imagine the Veteran doing repairs on anything.
·Said that the Veteran had not told her about the aircraft that he flew on being less than mechanically sound or that he had exposure to bombardments from Kamikaze Japanese fighter planes.
Evidence of Mr Adam Spies

In a statement dated 5 July 2018, Mr Adam Spies, the son of the Applicant and Veteran described how he had become his Father’s best friend and confidant. Mr Spies provided:[25]
[25] Exhibit 6, Statement of Adam Spies dated 5 July 2018.
…
7. There was a movie that we had watched that made Dad open up about his War time experiences and more than just a general observation. That movie was called "Broken" and was directed by Angelina Jolie. He commented specifically on how it was very much like his experiences and what it was like on the aircraft and leaving Darwin for bombing raids. The way he described his experiences were almost identical to what was being displayed in this movie. From the dodgy aircrafts they were flying in, to the bombardments from kamikaze Japanese fighter planes. To say the least his involvements were terrifying.
8. Dad would tell me in some battles that their guns would seize up and basically become sitting ducks just waiting to be shot. He described nights like this as absolutely terrifying. The worst part about it would be that his comrades would be trying to fix the weapons to no success and then be shot by enemy fire. These are the times that made Dad really express his hatred for what he had gone through as he despised the whole event of the War which in turn made him feel the way he did.
9. I had asked my Dad about going to Anzac Day or things of that nature but he would never be a part of it nor would he show me medals or any memorabilia or anything of that nature. He felt as though him and all the other survivors were getting all the credit when he had lost so much. As much as he did not like these types of events, he still did not hate the people who "celebrated" these days. As he would say to me "each to their own".
10. It was clear that whilst, in his own time and in the right environment he would talk about his War service, it was never bragging about how great it was but how sad it was, the fear of dying and the death of his mates and the uncertainty about your own life.
11. I could see it in his face and the tone of his voice that there was a lot of sadness and negative emotion about it all. Dad would always reiterate and was adamant that he never wanted any of his children to join the military because he knew how much sadness and sorrow it would bring our lives. He would always say the worst part was going to his friend's funerals and seeing their parents' mourning. He never wanted that to happen to him or to us.
12. As I got older, I also realised that he was smoking and drinking more than just what I guess people around me would be smoking and drinking. I know these habits had been the source of many discussions with my mum and him. I recall that he always tried to justify his smoking and drinking due to nerves or coping and it was something that he had always lived with after the War and would continue to do which is what he did for a substantial period of his life.
13. I always thought it was weird that he drank and smoked so much because he would always tell me how bad these habits were. I always remembered him as being health conscious when I was young. But as I mentioned it was not until I was older that I realised how much of his life was affected by these habits. It was very clear to me when I became an adult that these habits were caused by his experiences in the War. They certainly got worst [sic] when I was older too. I think because Dad knew I could make my own mind up about my actions that his influence no longer mattered and that I could work out why he had these habits all the while telling me not to take them up.
14. Overtime I think his sadness grew as he learned of the deaths of fellow Defence members and obviously as an older person, I think he reflected about his life and how he had grown older. While he still had his life whereas others around him had died young during the War, had died due to diseases from smoking and drinking associated with the War and all the nerves and problems that came with the things they went through as young men fighting for their country.
...
At Hearing Mr Spies, appeared in person, gave evidence under affirmation and told the Tribunal that his statement dated 5 July 2018 was true and correct to the best of his belief and knowledge.[26]

On cross-examination, Mr Spies told the Tribunal in relation to his statement, as set out above in paragraph 31 that after watching the movie, he had a good conversation with his Dad and it stuck out a little bit in his mind as they had never really spoken about those sort of events any other time. He said he had gathered his Dad was talking about his own experiences but whether or not he was talking about his own experience or what other people had told him about their experiences he was not sure.[27]
In response to questions asked by the Tribunal, Mr Spies said that he had seen the movie being referred to when he was in his late teens and that other than that occasion his Dad did not particularly open up very much about what happened to him during his service. He said his Dad was really sheepish about his experience other than little moments like that and especially on memorial days when he would really back off in his personality and everything.[28]
Evidence of Major Ian Hawke
[26]    Transcript, pages 14-15.
[27]    Transcript, pages 15-17.
[28]    Transcript, pages 17-18.

Major Ian Hawke provided a Historical Research Report dated 7 November 2018. The Summary of Major Hawke’s findings include:[29]
[29]    Exhibit 9, Report provided by Major Ian Hawke dated 7 November 2018.
The nature and circumstances of the late Veteran's period of service
20   The Veteran served for over three years in the RAAF. Of this over two years was spent in northern Australia with this service split roughly equally between the Northern Territory and the vicinity of Charters Towers, Queensland. Service in the Northern Territory was classified as operational service. There were two brief periods of service outside Australia which were probably delivery flights of repaired aircraft to flying units or to affect forward repairs to aircraft to enable the aircraft to be flown to Australia for major repairs. These were hard places with hard work among hard men and in marked contrast to his civilian occupation as a salesman of furnishing and drapery at a Sydney department store.
Whether the Veteran was exposed to any stressors during his service
21   Though not subject to enemy action (the last bombing raid in Northern Territory took place on 12 November 1943) there would have been a pervasive anxiety arising from being in a war zone, the threat of tropical diseases, an unfamiliar environment, being required to live in service surroundings for prolonged periods and in very remote locations, and the absence of personal freedoms which he would have previously taken for granted. The harsh hot tropical climate was very debilitating, and the Veteran would have required to take 'Salt supplements' in the form of salt tablets every day whilst in the tropics, as well as Atebrin tablets as a malaria suppressant. A reasonable person in the same circumstances as the late Veteran would consider the environment to be threatening, hostile, hazardous and/or menacing.
The availability of alcohol and the culture of drinking during his service
22 Alcohol was available, it was issued gratis whilst the Veteran was in the Northern Territory and available for purchase from Wet Canteens on the other bases on which the Veteran served. The official measures taken to manage the supply of alcohol and the data presented by Dr Barratt clearly demonstrate that there was a culture of drinking - and a propensity to drink to excess amongst many servicemen.
At Hearing, Major Hawke, appeared by telephone and gave evidence under affirmation. Major Hawke confirmed that the summary of his experience as set out at the end of his report dated 7 November 2018 were correct and that the content of the report are true and correct to the best of his knowledge and set out the opinions that he honestly and genuinely holds.[30]
[30] Transcript, page 24.
On cross-examination, Major Hawke:[31]
[31] Transcript, pages 24-25.
·Confirmed that his research indicated that the Veteran served in the Northern Territory from 28 February 1944 until 15 January 1945 and that by that time the war-like activity had moved away from Darwin.
·Confirmed that his research indicated that the Veteran worked as a Leading Aircraftman and that the unit he worked for was engaged in aircraft repair.
·Said that his research did not indicate in any way that the Veteran would have served as a gunner on any aircraft, if that had been the case it should have shown up on the Veteran’s Air Force personnel file and it does not.
·When told that it had been suggested that the Veteran had worked as a gunner on perhaps two occasions and asked if his research revealed that, said:
No. And I think it’s, well, I’m offering an opinion here. I think it’s unlikely. His unit was a, you know, a major repair depot. Had he been a gunner, he’d have been in a flying squadron, because, you know, Air Force gunners don’t work on the ground.
·When told that there had been information put before the Tribunal that the Veteran left Darwin on bombing raids and that he may have been subjected to bombardment form kamikaze Japanese fighter planes and asked if his research showed anything of that sort, said:
No, it doesn’t. I mean while it’s not impossible, it’s highly unlikely. I mean, he’s an aircraftsman working in major workshops. It’s ground based. Kamikaze attacks didn’t – did not – occur in Northern Australia. There were bombing attacks. So, while I concede quiet happily that nothing’s impossible in a war time, it does seem highly improbable, and it’s not supported by the official records.
·Confirmed that the last bombing raid in the Northern Territory took place prior to the Veteran’s arrival in Darwin.
Medical Evidence
Dr Diem Pham
On 10 October 2016, Dr Diem Pham, Contracted Medical Officer provided an opinion that the primary cause of the Veteran’s death was malignant neoplasm of the prostate. He provided the following further comment:[32]
[32] Exhibit 1, T Documents, T6, page 26, File Minute: Dr Diem Pham.
‘Chronic renal failure’ has also been listed on the death certificate. There is insufficient medical evidence for me to be clear as to the cause of the renal failure (many possibilities). [The Veteran] was 91 years old when he passed away so some degree of chronic renal impairment would be expected at his age but unless additional medical information is provided I cannot conclude the significance of his condition and whether it could have been related to service.
Evidence of Professor Richard Fox

At the request of the Respondent, Professor Richard Fox, Physician – Medical Oncologist and Haematologist, provided a report dated 5 October 2018.[33] In this report Professor Fox provided a medical history for the Veteran based on the material provided to him. He noted that in a letter dated 4 April 2007, Dr Sankunni, Renal Physician who was seeing the Veteran at virtually six monthly intervals at the time, wrote that “he had known hypertension for the last 36 years having been on hypotensive drugs. He had developed uncontrolled high blood pressure needing a change in his drugs.”[34]
[33] Exhibit 8, Report provided by Professor Richard Fox dated 5 October 2018.
[34] Exhibit 8, Report provided by Professor Richard Fox dated 5 October 2018, page 5; source document found at Exhibit 2, Supplementary T Documents, ST1, pages 3-4, Extract records from Pindara Private Hospital, Report of Dr Krishnan Sankunni.
Professor Fox opined that the Veteran’s cause of death was a combination of the progression, quite rapidly towards the end, of this prostate cancer on a background of many years of chronic renal failure, which was hypertensive nephrosclerosis.[35]
[35] Exhibit 8, Report provided by Professor Richard Fox dated 5 October 2018, page 8.
Specifically, in relation to the Veteran’s chronic renal failure, Professor Fox opined that it was likely caused by long standing hypertension, contributed to his death and was in no way related to his service.[36]
[36] Exhibit 8, Report provided by Professor Richard Fox dated 5 October 2018, pages 10-11.
In relation to the Veteran’s alcohol consumption Professor Fox stated:[37]
[37] Exhibit 8, Report provided by Professor Richard Fox dated 5 October 2018, page 9.
I note [the Applicant’s] statement that as of 1977 he was drinking ten bottles of red wine and champagne per week plus ten spirits per week. I would note this is bizarre and would have seriously affected [the Veteran’s] day-to-day performance, but did not seem to (??).
On 6 February 2020, Professor Fox having reviewed the report of Associate Professor Smee provided a letter confirming that he agreed with the report. He said he agreed that the Veteran’s chronic renal failure would more likely not be related to his war service.[38]
[38] Exhibit 12, Report provided by Professor Richard Fox dated 6 February 2020.
At Hearing, Professor Fox appeared by telephone and gave evidence under affirmation. Professor Fox:[39]
[39] Transcript, pages 27-30.
·Confirmed his qualifications.
·Confirmed he provided reports dated 5 October 2018 and 6 February 2020 and that the contents of both of those reports were true and correct to the best of his knowledge.
·Said he formed his opinion outlined in his report that the Veteran’s renal failure was due to longstanding hypertension and was unrelated to service as he could not see any service factors that would have caused his hypertension.
·Said that hypertension is a common condition.
·Confirmed he had considered all medical records that were on hand in respect of the Veteran.
·When asked whether within the contemporaneous records was there anything that revealed any guide or any information as to what level of alcohol the Veteran was consuming or whether or not that level of alcohol led to any sort of impairment of function, said:
No, I mean, I can’t remember the exact details. I had the impression of what was recorded was quiet a high alcohol intake. But there was no implication that he had any alcohol related diseases, which one might have expected with the level of alcohol he was drinking. I note that he stated he was driving, running a business re motor car hires. I presume he was chauffeuring or driving. I mean, high alcohol levels can cause cerebral atrophy with dementia, peripheral neuritis, severe liver failure, severe cardiac failure. There didn’t seem to be any evidence of those side effects.
Evidence of Associate Professor Robert Smee
At the request of the Applicant’s lawyers, Associate Professor Robert Smee, Radiation Oncologist provided a report dated 29 August 2019.[40] Associate Professor Smee provide the following:[41]
[40]    Exhibit 11, Report provided by Associate Professor Smee dated 29 August 2019.
[41]    Exhibit 11, Report provided by Associate Professor Smee dated 29 August 2019, pages 1-2.
Q1.     Onset of hypertension — Given the notes that are provided, it is very difficult to know when hypertension was first diagnosed. In the response from Professor Fox, the comment is made that this was first documented on 4/4/2007. It should be noted at that stage that this patient was under the care of a Renal physician, thus more likely the hypertension and chronic renal failure were present at least by that timeframe, if not considerably earlier. Comment is made that there is reference to hypertension being present for over 30 years.
Q2.     Alcohol consumption — Alcohol consumption is a minor contributor to hypertension. It is noted that this patient did have for a time-frame heavy alcohol consumption, but when moving into his own business consumption, this was decreased. Irrespective of that this would have been a minor contributor. There is no comment about whether this person was a smoker, this would be a greater contributor to hypertension.
Q3.     Criteria — This patient's hypertension, as stated, had been present for a considerable timeframe. It would have been a contributor to the death of this person via the intervention of chronic renal failure. There is thus a linkage between these two circumstances that ultimately led to this patient's demise. It is unknown whether this patient was a consumer of at least 300g of alcohol per week prior to the onset of hypertension. As stated, the diagnosis of hypertension dates back over 30 years. This may have been during a period of heavy alcohol use, but not necessarily relevant to this patient's ultimate demise.
Q4.     Chronic renal failure — Longstanding hypertension would most definitely have been a dominant contributor to this patients chronic renal failure. It is also noted that this patient had progressive prostate cancer. This may have provided a component of prostate outlet obstruction, with back fill pressure onto the kidneys, this would have contributed to this patient's circumstance.
It must be specifically stated, however, that the chronic renal failure was a greater contributor.
Q5.     Cause of death — This patient's chronic renal failure was more likely the dominant cause of this patient's death. As stated above, the hypertension was the prelude to the chronic renal failure, and thus there is a link between the two events. The dialysis that this patient was commenced on was the only means to address the chronic renal failure, however a significant deterioration of this patient's condition resulted in this either never commencing or being ceased. It is uncertain from the notes provided as to which was the event.
Q6.      Related to service — This patient's chronic renal failure would more likely not be related to this patient's war service. This patient died at the age of 91, had chronic renal failure for a number of years, however well separated from war service. The presence of chronic renal failure is not uncommon in patients of that age. The co-existence of his prostate carcinoma, which was described as "aggressive" ultimately, and other medical events including hypertension (poorly controlled) and the chronic renal failure were the events that lead to this patient's death.

At Hearing Associate Professor Smee appeared by telephone and gave evidence under affirmation. Associate Professor Smee confirmed that the opinions he expressed in his report of 29 August 2019 were his honest and genuinely held opinions.[42]
[42] Transcript, pages 19-20.
On cross-examination, Associate Professor Smee:[43]
[43] Transcript, pages 21-23.
·Agreed that based on when the Veteran’s hypertension was first documented, it is difficult to know when it was first diagnosed, which makes it difficult to be able to identify the date of clinical onset or clinical worsening.
·Said that the only document he had that applied a quantity to the amount of alcohol consumed by the Veteran was the statement from the Applicant.
·When asked if he agreed that in the medical records there was nothing indicative of any impairment or, diminution of lifestyle or anything of that order which might have been attributable to excessive consumption of alcohol, said the medical records he has cannot create that implication.
·Confirmed the statement in his report that “It is unknown whether this patient was a consumer of at least 300 grams of alcohol per week prior to the onset of the hypertension.”
·When asked why he reported that the Veteran’s chronic renal failure would more likely not be related to his war service, said:
Well, on the weight of probabilities. I mean, you know, he has chronic renal failure at the time when many in the community have chronic renal failure. Chronic renal failure is not an uncommon event as people get towards the end of their life. And it’s only a proportion of patients who have had, you know, a war service record. So, the statement is made purely on the basis of probabilities.
SUBMISSIONS
Applicant’s Submissions[44]
[44] As set out in the Applicant’s Outline of Submissions handed up at the Hearing; Exhibit 4, Applicant’s Amended Statement of Facts, Issues and Contentions, filed on 18 November 2019 and Transcript, pages 31-34.

The Applicant contends that the steps in Deledio are met and that the Tribunal should set aside the reviewable decision and instead find that the Applicants claim for a war widow pension should be granted.
The Applicant contended that in relation to Step 1 that the hypothesis arises that the Veteran’s death was contributed to by hypertension which in turn was contributed to by the Veteran’s level of alcohol consumption that arose out of, or was attributable to, his operational service.[45]
[45] Exhibit 4, Applicant’s Amended Statement of Facts, Issues and Contentions, filed on 18 November 2019, page 3, paragraphs 12-13.
The Applicant relies on the Hypertension SoP to contend that Step 2 is satisfied.
The Applicant contended in reliance upon the Respondent’s Amended Statement of Issues, Facts and Contentions that the first two steps were not in contention.
The Applicant submitted that for Step 3 it is not enough that a hypothesis exists, it must be a reasonable hypothesis and if a SoP is enforced, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. This is not a fact finding process for the Tribunal it is not a question of whether the Tribunal is satisfied on the balance of probabilities that the Veteran’s death was contributed to by hypertension – or that hypertension was contributed to by the alcohol and that the alcohol arose out of his service. The question is whether that hypothesis provides some support in the material, even though not provided on the balance of probabilities.
The Applicant referred the Tribunal to the decision in East v Repatriation Commission (1987) 74 ALR 518, where the Full Court approved the following statement of principle at 533-534:
A hypothesis may be conveniently defined as: 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary
…
The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material — that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable, even though theoretical, and it may be theoretical in either or both of at least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.
The Applicant relies on her submission that clause 6(b) of the Hypertension SoP has been met as there is material raising the hypothesis of consumption of an average of 300 grams at the relevant time surrounding the clinical onset of the Veteran’s hypertension. Noting that this rate of consumption of alcohol equates to 30 standard drinks per week.
The Applicant’s Counsel acknowledged that there is no direct evidence from the Veteran himself and the contemporaneous records are rather silent, however the Applicant has given evidence that the Veteran conveyed to her that he only started drinking when he went to Darwin with the Air Force and that drinking was part of the culture there. Counsel for the Applicant should to rely on:
(a)The evidence of the Applicant.
(b)While not pressing that the Veteran was a gunner or his involvement in bombardments, that there is material to point to what Major Hawke described as ‘a pervasive anxiety arising from being in a war zone.’ Although the Veteran went to the Northern Territory after the bombing had finished it was only a matter of months after the last Japanese bombing raid had occurred. It would hardly be a stretch to think that the soldiers and airmen in the Northern Territory, only months after a bombing raid, would be concerned that there could be more.
(c)Major Hawke refers to the ready availability of alcohol and to evidence to suggest a propensity for servicemen at large to drink to excess consistent with that the Veteran conveyed to the Applicant. The evidence comfortably meets the test of whether there is some support for the proposition that the Veteran’s drinking habit arose out of his war service and the general anxiety he would have experienced in the Northern Territory.
(d)In relation to clinical onset of the Veteran’s hypertension the evidence of Professor Fox and Associate Professor Smee, points to and provides some support for the proposition that the clinical onset was in the early 1970’s, probably around 1971, it is difficult to be precise.
(e)The evidence of the Applicant is sufficient to at least give some support to the proposition that the Veteran was drinking at least 30 standard drinks a week for the six months prior to the onset of his hypertension.
(f)It is clear on the medical evidence that alcohol is a contributory factor to hypertension.

The hypothesis relied on by the Applicant is as follows:[46]
[46] Applicant’s Outline of Submissions handed up at the Hearing, page 4.
(a)First, that [the Veteran’s] death was contributed to by hypertension. This element is raised or point to by the evidence of both Prof Fox and Prof Smee. The Respondent has conceded this.
(b)Second, that [the Veteran’s] hypertension was contributed to by his alcohol consumption. This element is raised or point to by the evidence of the Applicant regarding [the Veteran’s] heavy alcohol consumption in the 1970s, and by Prof Smee’s evidence of alcohol being a contributor to hypertension.
(c)Third, that [the Veteran’s] heavy alcohol consumption arose out of, or was attributable to, his operational service. This element is raised or pointed to by the evidence of the Applicant and Major Hawke.

The Applicant contended that for the same reasons that it says Step 3 is met, Step 4 is met on the basis that the Tribunal, if it accepts the Applicant’s contentions at Step 3, could not be satisfied beyond reasonable doubt that the Veteran’s death was not war-caused. The Applicant contended that the evidence before the Tribunal raises a reasonable and plausible causal relationship between the Veteran’s operational service and the hypertension that contributed to his death.[47]
[47] Applicant’s Outline of Submissions handed up at the Hearing, page 5.
Respondent’s Submissions[48]
[48] Transcript, pages 34-38; Exhibit 3, Respondent’s Amended Statement of Issues, Facts and Contentions, dated 20 December 2019.
The Respondent sought to rely upon the contentions as set out in their Amended Statement of Issues, Facts and Contentions.[49] To that extent the Respondent provided that there is no dispute that the Veteran was a veteran who has died, and that the Applicant is his widow.[50]
[49] Transcript, page 34
[50] Exhibit 3, Respondent’s Amended Statement of Issues, Facts and Contentions, dated 20 December 2019, page 6, paragraph 6.6.
In relation to the kind of death suffered by the Veteran the Respondent provided the following:[51]
[51] Exhibit 3, Respondent’s Amended Statement of Issues, Facts and Contentions, dated 20 December 2019, page 7, paragraph 6.11.
6.11The Respondent accepts that on the available evidence, the conditions which contributed to the Veteran’s death were renal failure and prostate cancer. The Respondent accepts on the available medical evidence that the ‘chronic renal failure’ was a terminal event which caused the Veteran’s death but the underlying cause of the chronic renal failure was longstanding hypertension. The Respondent therefore does not dispute that hypertension was a contributor to the Veteran’s kind of death.
The Respondent submitted that the critical issue is whether the Veteran’s death was “war-caused” which requires the consideration of the Deledio steps.
The Respondent submitted that it did not contend that the claim for pension fails at Step 1 or Step 2 with the relevant SoP being the Hypertension SoP.
The Respondent contended that the Applicant’s claim fails at Step 3 in relation to reasonableness of the hypothesis.
The Respondent in conjunction with the contentions outlined in their Amended Statement of Issues, Facts and Contentions, outlined below, contended that after hearing the evidence of the medical specialists there is little evidence to establish, in any way at all, just when the clinical onset of the Veteran’s hypertension would be; there is a passage of time from 1945 to 1977 where there is no clear evidence as to what took place, but theoretically that evidence could have been available in the way of medical records but there is nothing of that ilk in front of the Tribunal; and the Veteran’s alcohol consumption has been bounced around in the evidence provided by the Applicant.

The Respondent’s contentions in relation to Steps 3 and 4 of the Deledio steps were outlined in its Amended Statement of Issues, Facts and Contentions as follows:[52]
[52]    Exhibit 3, Respondent’s Amended Statement of Issues, Facts and Contentions, dated 20 December 2019, pages 8-14, paragraphs 6.18-6.50.
…
6.18In relation to step three, the reasonableness of a hypothesis for the purposes of s 120 is assessed by reference to the relevant SOP in force. A hypothesis connecting a death with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SOP: Repatriation Commission v Hill [2002] FCAFC 192 at [55]. It is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met: Ellis v Repatriation Commission [2014] FCA 847 at [63].
6.19 There is no issue on the material before the Tribunal that the veteran suffered from malignant neoplasm of the prostate, hypertension or chronic renal failure.
6.20 However, the SOP factors require the material that raises the hypothesis to include more than that. The SOP factors require the material that raises the hypothesis to also include the essential elements prescribed by the relevant SOP factor/s raised.
…
Hypertension
6.24     The factors raised by the Applicant in the Hypertension SOP are:
(a)Factor 6(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; and
(b)Factor 6(r): ‘consuming an average of at least 300 grams of alcohol per week for at least 6 months before the clinical worsening of hypertension’.
Clinical onset of Hypertension
…
6.28 The exact date of clinical onset of hypertension is unknown. There is no evidence of the Veteran’s blood pressure readings prior to 2009. Dr Fox and Dr Smee opine on the basis of a letter from Dr Sankunni dated 4 April 2007 that the Veteran had a history of hypertension of about 36 years and was on Tritace and Norvasc which Dr Fox opines was changed to Micardis plus and Alpharess the year prior due to the Veteran developing uncontrolled high blood pressure. There is no evidence in the available medical evidence of the cause for the Veteran’s hypertension.
6.29 At best the available evidence suggests that the Veteran was on regular medication for hypertension from around 1971, some 25 years after his discharge from service and 6 years before the Applicant and the Veteran met in 1977.
6.30The date of any ‘clinical worsening of hypertension’ is also unclear but the available medical evidence suggests that there was a clinical worsening of hypertension in around 2006 the cause of which is unclear from the available medical evidence. The Applicant’s evidence is that the Veteran reduced his consumption of alcohol in 2000 to at most 2.5 standard alcoholic drinks per day.
6.31The Respondent contends that it is not open to the Tribunal to infer or assume that essential elements of a hypothesis are met in relation to ‘clinical onset’. That the Veteran consumed the requisite amount of alcohol in the 6 months before clinical onset is an essential element of the hypothesis. The Respondent contends that the material before the Tribunal does not satisfy this essential element.
Alcohol consumption
6.32 …
6.33 To satisfy the SOP factor in the SOP for Hypertension, the Veteran would have to have been consuming at least 30 standard drinks per week or 4.2 standard drinks per day in the 6 months before the clinical onset or worsening of Hypertension.
6.34 The Applicant’s evidence is that the Veteran consumed 10 bottles of wine and 10 spirits per week between 1977 and 2000 and then reduced his alcohol consumption to 6 standard drinks per day. The Applicant stated that from 2000 the Veteran drank 1 to 2 bottles of wine per week and about 2 spirits per week.
6.35 A bottle of wine contains 8 standard drinks 6 glasses and each glass contains approximately 1.3 standard drinks. On the Applicant’s evidence the Veteran was therefore drinking at least 7-8 standard drinks per week or about 11 standard drinks per day (not including 10 ‘spirits’ per week) until 2000. On the Applicant’s evidence after 2000 the Veteran was drinking at most about 2.7 standard drinks per day including 2 ‘spirits’ per week.
6.36 The Applicant also stated that the Veteran drank even more before they met, when he was in his 30’s and 40’s.
6.37 A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts even though not proved on the balance of probabilities: East v Repatriation Commission (1987) 16 FCR 517 at 533; applied in Budge and Repatriation Commission [2014] AATA 276 at [39].
6.38 A “mere possibility” is not sufficient to make a hypothesis reasonable: Repatriation Commission v Bey (1997) 79 FCR 364 at 372.
6.39It may be that its elements are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable”: Bull v Repatriation Commission [2001] FCA 1832 at [5]; applied in Budge at [40]. Any gap or absence of information cannot be filled by inferences which would mean no more than speculation: Budge and Repatriation Commission [2014] AATA 76.
6.40It is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met: Ellis v Repatriation Commission [2014] FCA 847 at [63].
6.41The Respondent contends that there is insufficient evidence for the Tribunal to be satisfied of the Veteran’s consumption of alcohol or of its connection to the Veteran’s prostate cancer or hypertension for the following reasons:
(a)The Applicant met the Veteran in 1977. Her evidence regarding the Veteran’s alcohol consumption between 1946 and 1977 is solely based on her recollection of what the Veteran told her about his alcohol consumption during that time.
(b)In her alcohol questionnaire the Applicant stated that the Veteran consumed 10 bottles of wine and 10 spirits per week between 1977 and 2000. However, in her statement dated 6 September 2017 the Applicant stated that from the time she met him in 1977 the Veteran ‘continued to drink often and heavily up until we bought a limousine business’.
(c)The Applicant’s representative at the VRB hearing submitted to the VRB that from 2000 the Veteran consumed 6 standard drinks per night. However, in her Alcohol Questionnaire the Applicant stated that the Veteran reduced his alcohol consumption to 1 to 2 bottles of wine per week plus 2 spirits per week which on the Respondent’s calculation is about 2.5 standard drinks per day.
(d)The quantity of alcohol which the Applicant states the Veteran consumed for at least 23 years between 1977 and 2000, when he reduced his alcohol intake to 6 standard drinks per day, would have severely impacted his day to day function. However:
(i)    No information has been provided about any attempts prior to 2000 by the Veteran to reduce his alcohol consumption.
(ii)   No information has been provided about how the Veteran’s alcohol consumption affected his daily functioning, his family life or employment.
(iii) Very limited information has been provided by the Applicant about the Veteran’s employment history other than he started a limousine business in 2000 as a result of which he reduced his alcohol consumption.
(iv) Major Hawke mentions in his report that the Veteran worked as a salesman of ‘furnishing and drapery in a Sydney department store.’
(v)   In a letter dated 9 August 2010 Dr Cleaver, orthopaedic surgeon, stated that ‘Mr Spies has had a very active life. He worked in the Air Force, in real estate and now sells optical frames three days a week and is on the road a lot’ (summonsed medical records).
(vi) A consultation note in the summonsed medical records of Pindarra Private Hospital dated 4 April 2016 records that the Veteran was well and working as a sales representative until about March 2016.
(e)There appears to be no mention in the available medical records of the Applicant’s history of alcohol consumption prior to 1999. However:
(i)     A Commercial Vehicle Driver’s Health Assessment forms dated 4 June 1999 and 29 June 2005 signed by the Veteran shows that he ticked the box ‘occasionally’ in response to the question ‘how frequently do you drink alcohol?’. One of the other options was ‘daily’. The Veteran’s doctor ticked ‘absent’ to the question ‘signs of alcohol or other drug use’.
(ii)    The available ‘Health Assessments for Elderly Patients’ and ‘Geriatric Depression Scale questionnaires’ going back to 2008 indicate the Veteran’s mental health and cognitive function was normal.
(iii)   The Annual Health Assessment questionnaires going back to 2011 indicate he was a non-smoker and was drinking 4 glasses of champagne per week and his previous alcohol intake was ‘moderate’.
Alcohol consumption and link to service
6.42Even if the Tribunal is satisfied that there is sufficient evidence that the Veteran was consuming the amount of alcohol required in the relevant SOP factors, the Tribunal will also have to be satisfied that the Veteran’s alcohol consumption was causally related to his service. Section 198B (14), relevantly states:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(b) it arose out of, or was attributable to, that service; or
…
6.45 In Cairns and Repatriation Commission [2013] AATA 742, a case which is similar to this one on its facts, a causal connection between the Veteran’s alcohol consumption and his service was not established. In that case the Tribunal said:
While there is evidence that is capable of establishing the veteran experienced stress during the course of his service (see for example, the historical report of Dr A. Palazzo) and there is evidence that he began to drink more heavily at the same time, there is no evidence pointing to a causal connection between those two events....
We agree there is often a connection between stress and circumstances on the one hand and alcohol consumption on the other. And so it was in Bull: the veteran in that case became agitated when asked about the war, he drank with ex-servicemen, and exhibited a range of other behaviours suggesting he drank because of the war, even if he did not expressly identify (or even realise) that was why he resorted to alcohol. But there is nothing on the material in this case suggesting there is anything other than a temporal connection between the circumstances of Mr Cairns’ service and his pattern of alcohol consumption. In those circumstances, we are unable to identify material that points to a key part of the hypothesis.
6.46 The Respondent contends that having regard to the evidence in this case, the Veteran’s alcohol consumption was not sufficiently related to his operational service, such that it could be said that it was more than temporally related to his operational service for the following reasons:
(a)There is very little information before the Tribunal about the Veteran’s service. The Applicant’s evidence is that the Veteran was a ‘gunner and a ‘leading Aircraftman’. The available evidence is that the Veteran was posted in New South Wales, Northern Territory and Queensland for the duration of his service. The Veteran left mainland Australia on temporary duty on 18 February 1944 and returned on 23 February 1944 and on 23 February 1944 and returned on 28 February 1944.
(b)Major Hawke’s evidence, in so far as it is relied on to support the Applicant’s evidence that the Veteran’s alcohol consumption during his service and his alcohol consumption following his service was causally connected to his service, amounts to no more than speculation or assumption.
(c)There is no medical evidence that the Veteran suffered from any diagnosed physical injuries or psychiatric conditions during his service that would support a causal connection between the Veteran’s alcohol consumption and his service.
(d)The Applicant gave evidence to the VRB that the Veteran’s alcohol consumption was particularly heavy in his 30s and 40s and that he increased his alcohol consumption after his discharge from service. However, there is no evidence to explain how or why this pattern of alcohol consumption developed.
6.47 The Respondent contends that …. SOP factor 6(b) and 6(r) of the SOP for Hypertension are not met because the Veteran’s alcohol consumption or any increase in alcohol consumption was not caused by his operational service.
6.48 The Respondent contends the material in the present matter does not raise all essential elements prescribed by the SOPs for … Hypertension. To the extent the Tribunal is attracted to the Applicant’s contention that it does, the Respondent contends in the alternative that, at highest, they are raised “so slightly” that it is no more than a “mere possibility”, such that the hypothesis cannot be viewed as reasonable.
6.49 Accordingly, the Respondent contends that a reasonable hypothesis connecting the Veteran’s death was not causally related to his operational service during World War II. The claim therefore fails at step 3 of the Deledio steps.
6.50For that reason, pursuant to s 120(3) of the VEA, the Respondent contends that the Tribunal can be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Veteran’s death was war-caused.
CONSIDERATION
Preliminary Issues

As set out earlier, it accordance with the decision in Collins it is necessary to consider a number of preliminary issues.
It is not disputed that the Applicant is the widow of the Veteran who rendered operational service while serving with the Royal Australian Air Force in World War II.
It is also not disputed that the Veteran died on 16 April 2016 and the cause of death listed on his Death Certificate was (1) Metastatic prostate cancer and (2) Chronic renal failure.[53]
[53] Exhibit 1, T Documents, T5, page 25, Death Certificate of the Veteran.
The cause of death listed on a death certificate is not necessarily conclusive of the cause of death. The Tribunal must consider the medical evidence and reach an independent conclusion.[54]
[54] Willman and Repatriation Commission [2007] AATA 1480 at [23].
For the purposes of sections 120 and 120A of the Act, the cause of death requires an injury into the ‘kind of death’ suffered by the veteran. In Repatriation Commission v Hancock [2003] FCA 711 at [11], Selway J explained the importance of resolving this issue as follows:
The AAT, faced with the evidence of Dr Betty should have proceeded as follows:
(a)    First, the Tribunal was required to determine, on the balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.
(b)    Next, the Tribunal was required to determine on the balance of probabilities what ‘kind of death’ Mr Hancock had suffered. This involved the identification, on the balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.
(c)    If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.
(d)    If only a determination under s 180A(2) is applicable, then the application must fail.
(e)    If no SoP and no determination is applicable at all or to a particular ‘kind of death’, then the methodology in Byrnes is applicable in relation to that.
In considering the evidence before the Tribunal and applying the law as set out above, the Veteran’s ‘kind of death’ for the purposes of this matter is prostate cancer and chronic renal failure (with the underlying cause of the Veteran’s chronic renal failure being longstanding hypertension).
Having considered the preliminary issues, the issue before the Tribunal is whether the Veteran’s death was “war caused” and this is considered in accordance with the principles set out in Deledio.
Deledio Principles – Step 1
The first step of the Deledio Principles looks to ensure that section 120(3) of the Act is properly applied. At this stage the Tribunal does not engage in a fact-finding exercise and is only required to be reasonably satisfied that the hypothesis raised has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied upon.[55] Whether that material points to or supports a hypothesis can be determined by inference or assumption.[56]
[55] Forrester v Repatriation Commission [2013] FCA 898 at [14].
[56] Forrester v Repatriation Commission [2013] FCA 898 at [30].
The Applicant raised the hypothesis that the Veteran’s death was contributed to by hypertension which in turn was contributed to by the Veteran’s level of alcohol consumption that arose out of, or was attributable to, his operational service.
The Respondent did not contend that the Step 1 of the Deledio Principles was not met.
As such the Tribunal finds that the hypothesis raised has some support in the material and Step 1 of the Deledio Principles is met.
Deledio Principles – Step 2
As explained by Senior Member McDermott (as he then was) in Higgins and Repatriation Commission [2013] AATA 630 at [23] it necessarily follows that where an Applicant seeks to connect an ultimate condition through an antecedent condition, then a relevant factor in the SoP for the antecedent condition must itself be met.
In this matter it is not disputed that the Veteran’s chronic renal failure was caused by longstanding hypertension and as such the SoP in force relevant to the hypothesis raised is the Hypertension SoP.
As such the Tribunal is satisfied that Step 2 of the Deledio Principles is met.
Deledio Principles – Step 3
The third step of the Deledio Principles requires that the Tribunal must form an opinion as to whether the hypothesis raised is a reasonable one. To do this the Tribunal is required to determine if the hypothesis fits or is consistent with the template found in the Hypertension SoP.
In considering the issue of reasonableness assistance is provided by the following observations of Mortimer J in Forrester v Repatriation Commission [2013] FCA 898 at [32]:
The reasonableness of a hypothesis is in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because an SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…
Although it is not necessary for every element of a hypothesis to be supported, or pointed to, by the material by the Tribunal, the essential elements of the hypothesis must be addressed.[57] It is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met, the material presented must raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.[58]
[57] Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 353 at [59]/364.
[58] Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 353 at [63]/365.
As set out above, the Respondent is not disputing that the Applicant’s claim satisfies Steps 1 and 2 of the Deledio Principles, it contends that the claim fails at Step 3. In summary the Respondent contends that the evidence before the Tribunal in relation to the clinical onset of the Veteran’s hypertension or level of alcohol consumption is not sufficient to establish that the relevant facts raised in the Hypertension SoP are met.
The Hypertension SoP requires that at least one of the factors set out in clause 6 are met as a minimum 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. The Applicant seeks to rely on factor (b) that the Veteran was consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension.
The Tribunal needs to consider when the clinical onset of the Veteran’s hypertension occurred before the timeframe within which his alcohol consumption can be examined.
Clause 3 of the Hypertension SoP defines ‘hypertension’ for the purposes of the SoP.[59] The critical requirements are that there is persistently elevated blood pressure, diagnosed by a medical practitioner which is evidenced by the relevant blood pressure test results as set out in clause 3(b).
[59] As set out in paragraph 17 above.
The term “clinical onset” is not defined in the Hypertension SoP or Act however has been considered extensively by the Tribunal and Federal Court.[60] As a result, it has been established that clinical onset of a disease occurs either:
[60] Robertson v Repatriation Commission (1998) 50 ALD 668 at 670; Repatriation Commission v Cornelius [2002] FCA 750 at [26]; Lees v Repatriation Commission (2002) 125 FCR 331 at 335-336.
(a)when the Veteran becomes aware of some features or symptoms which enables a doctor to say the disease is present at that time; or
(b)when a finding is made on investigation which is indicative to a doctor of the disease being present.
In relation to clinical onset of the Veteran’s hypertension, the Applicant contended that the Tribunal should be satisfied that the evidence of Professor Fox and Associate Professor Smee points to and provides some support for the proposition that the clinical onset was in the early 1970’s probably around 1971. The Applicant acknowledged it is difficult to be precise.
As set out above, the Respondent set out their contentions in relation to the issue of clinical onset at paragraphs 6.28 and 6.29 of its Amended Statement of Issues, Facts and Contentions as follows:[61]
[61] Exhibit 3, Respondent’s Amended Statement of Issues, Facts and Contentions, dated 20 December 2019, page 10, paragraphs 6.28-6.29.
6.28 The exact date of clinical onset of hypertension is unknown. There is no evidence of the Veteran’s blood pressure readings prior to 2009. Dr Fox and Dr Smee opine on the basis of a letter from Dr Sankunni dated 4 April 2007 that the Veteran had a history of hypertension of about 36 years and was on Tritace and Norvasc which Dr Fox opines was changed to Micardis plus and Alpharess the year prior due to the Veteran developing uncontrolled high blood pressure. There is no evidence in the available medical evidence of the cause for the Veteran’s hypertension.
6.29 At best the available evidence suggests that the Veteran was on regular medication for hypertension from around 1971, some 25 years after his discharge from service and 6 years before the Applicant and the Veteran met in 1977.
The Respondent further contended that it is not open to the Tribunal to infer or assume that essential elements of a hypothesis are met in relation to ‘clinical onset’. That the Veteran consumed the requisite amount of alcohol in the 6 months before clinical onset is an essential element of the hypothesis. The Respondent contended that the material before the Tribunal does not satisfy this essential element.[62]
[62] Exhibit 3, Respondent’s Amended Statement of Issues, Facts and Contentions, dated 20 December 2019, page 10, paragraph 6.31.
The medical evidence before the Tribunal in relation to the Veteran’s hypertension before 2007 is non-existent. Both Professor Fox and Associate Professor Smee expressed that it was difficult to know when the Veteran’s hypertension was first diagnosed and made reference to a note made by Dr Sankunni in 2004 that “he [the Veteran] had known hypertension for the last 36 years”. It is the note of Dr Sankunni and the references by Professor Fox and Associate Professor Smee that the Applicant relies upon in considering that the possible clinical onset of the Veteran’s hypertension was 1971. There is no evidence to point to on what basis Dr Sankunni noted the Veteran’s known hypertension, therefore the Tribunal cannot be certain as to whether it was based on the Veteran’s self-report or other medical material before Dr Sankunni. No such medical material has been put before the Tribunal supporting the note of Dr Sankunni.
If the Tribunal was to accept the Applicant’s contention in this regard it would be inferring or assuming essential elements of the Hypertension SoP were met as there is no contemporaneous medical evidence before it as to when the Veteran first started experiencing hypertension before 2004, there are no blood pressure readings before that time. There is no evidence of whether or when the Veteran’s elevated blood pressure readings met the requirements of the definition of hypertension for the purposes of the Hypertension SoP as set out in clause 3.
In Kaluza v Repatriation Commission [2010] FCA 1244, Jacobson J made the following observation on clinical onset at [93]:[63]
[63] This observation was approved by the Full Federal Court in Kaluza v Repatriation Commission [2011] FCAFC 97 at [51].
The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.

The Applicant has not provided any evidence in relation to when she says the Veteran’s hypertension was diagnosed.
While it is not disputed that the Veteran suffered from long-standing hypertension, the medical evidence before the Tribunal is limited and acknowledges that it is difficult to pin point a date of onset. The evidence does not allow the Tribunal to conclude that it provides some support and points to the hypothesis. The Tribunal considers that the medical evidence leaves open the hypothesis because it is entirely unclear at what time the Veteran began suffering from elevated blood pressure of the type that meets the requirements of clause 3 of the Hypertension SoP.
The Tribunal therefore agrees with the contentions advanced by the Respondent that the essential elements of the Applicant’s hypothesis in relation to the onset of hypertension have not been met.
As the Tribunal has found it is unable to determine the date of clinical onset of the Veteran’s hypertension it is unable to and unnecessary to engage with the task of determining whether the factor set out in clause 6(b) of the Hypertension SoP had been established. However, for completeness the Tribunal notes that the evidence before the Tribunal in relation to the Veteran’s alcohol consumption is limited to that provided by the Applicant.
The Applicant sought to advance evidence that the Veteran’s alcohol consumption from 1946 up until 2000 was heavy and if accepted may at the very least meet the 300 grams of alcohol consumption a week set out by clause 6(b). From 2000 the Applicant’s evidence is that the Veteran’s level of alcohol consumption reduced dramatically. Based on the evidence of the Veteran’s alcohol consumption after 2000 the Tribunal considers that he was not consuming 300 grams of alcohol per week from that time onwards.
The position in relation to the Veteran’s level of alcohol consumption for the period between 1946 and 2000 is less clear. This is especially the case for the period between 1946 and 1977, being prior to when the Applicant met the Veteran. Having considered the albeit limited evidence as a whole and given the changing nature of the Applicant’s evidence regarding the Veteran’s alcohol consumption together with the absence of any evidence of the Veteran experiencing any impacts to his health or ability to engage in his daily life as a result of the level of alcohol consumption that the Tribunal is being asked to accept in stark contradiction to the views expressed by Dr Fox, the Tribunal accepts the contentions of the Respondent as set out in paragraph 6.41 of its Amended Statement of Issues, Facts and Contentions (as reproduced in paragraph 64 above).
A mere possibility is not sufficient to make a hypothesis reasonable.[64]
[64] Repatriation Commission v Bey (1997) 79 FCR 364 at 372.
Given the Tribunal’s finding in relation to clinical onset and observations regarding consumption of alcohol it is not necessary to consider whether there was a causal link between the Veteran’s alcohol consumption and his service. Further as Step 3 of the Deledio Principles has not been met, it follows by logic neither is Step 4.
DECISION

The Tribunal affirms the decision under review.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..............[SGD]................................................
Associate
Dated: 31 July 2020

Date of Hearing: 7 February 2020

Counsel for the Applicant: Mr Matthew Black

Solicitors for the Applicant:

Counsel for the Respondent:

KCI Lawyers

Mr Charles Clark

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of Hearing:	7 February 2020
Counsel for the Applicant:	Mr Matthew Black
Solicitors for the Applicant: Counsel for the Respondent:	KCI Lawyers Mr Charles Clark
Solicitors for the Respondent:	Sparke Helmore Lawyers