Starr and Repatriation Commission
[2003] AATA 1247
•11 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1247
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1173
VETERANS' AFFAIRS DIVISION ) Re JOAN STARR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date11 December 2003
PlaceSydney
Decision The decision under review is set aside. In its place the Tribunal decides that Mr Phillips’ death was war-caused and Ms Starr is entitled to a War Widow’s Pension. The matter is remitted to the Repatriation Commission to determine the correct pension that is payable in accordance with these reasons.
[Sgd] Mr S. Webb, Member
Administrative
Appeals
TribunalADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1173GENERAL ADMINISTRATIVE DIVISION )
ReJOAN STARR
Applicant
AndREPATRIATION COMMISSION
Respondent
ORDER TO AMEND WRITTEN DECISION [2003] AATA 1247
TribunalMr S Webb, Member
Date4 February 2004
PlaceSydney
WHEREAS:
1.the Tribunal released a written decision in this matter, dated 11 December 2003; and
2.it has come to the Tribunal’s attention that there was a typing error in the decision;
3.the Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act 1975.
NOW THE TRIBUNAL THEREFORE ORDERS that paragraph 61 of the decision reads as follows:
“This being the case, I find that the late veteran's death was war-caused and Ms Starr is entitled to a Widow's Pension payable from 3 months prior to the date of claim, ie. 24 April 2000 (s.20).”
[Sgd] Mr S Webb
Member
CATCHWORDS
VETERANS' ENTITLEMENTS - widow pension - marriage-like relationship - death of veteran - WWII operational service - reasonable hypothesis - ischaemic heart disease, dyslipidaemia, alcohol consumption - Statement of Principles concerning Ischaemic Heart Disease - no Statement of Principles concerning dyslipidaemia - material pointing to alcohol consumption caused by service - decision set aside
Veterans' Entitlements Act 1986 sections 5E, 6A, 8, 9, 11A, 13, 14, 119, 120, 120A, 196B
Repatriation Medical Authority Statement of Principles 53 of 2003 for Ischaemic Heart Disease
Repatriation Commission v Delidio (1998) 83 FCR 82
McKenna v Repatriation Commission (1999) 86 FCR 144
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hancock [2003] FCA 710
Bushell v Repatriation Commission (1992) 175 CLR 408
Gosewinckel v Repatriation Commission (1999) 59 ALD 690
Connors v Repatriation Commission (2000) 59 ALD 61
Elliott v Repatriation Commission (2002) 73 ALD 377
Cornelius v Repatriation Commission [2002] FCA 750
Repatriation Commission v Bey (1997) 79 FCR 364
Woodward v Repatriation Commission [2003] FCAFC 160
Hughes v Repatriation Commission (1990) 13 AAR 34
Bull v Repatriation Commission [2001] FCR 823
REASONS FOR DECISION
11 December 2003 Mr S. Webb, Member 1. On 9 October 1999 Mr David Phillips (“the late veteran”) died (T4, f23). On 24 July 2000 Ms Joan Starr, his defacto wife, lodged a claim for a War Widow’s Pension (T4). The Repatriation Commission rejected her claim on 9 August 2000 (T5). By Ms Starr’s request the Veterans’ Review Board (“the VRB”) reviewed the decision and affirmed it on 28 May 2001 (T8). Being dissatisfied with this outcome, Ms Starr applied for review by this Tribunal on 10 August 2001.
2. The issue for determination before the Tribunal is whether the late veteran’s death was war-caused.
legal principles
3. Ms Starr’s claim is under the Veterans’ Entitlements Act 1986 (“the Act”). For a person in Ms Starr’s circumstances to be eligible for a widow’s pension (s.13) pursuant to a proper claim (s.14), it must first be established that she and the late veteran were in a marriage-like relationship (s.11A). It must then be determined whether the late veteran’s death was war-caused (s.8[i]).
4. Issues of relationship, service and diagnosis are to be determined on the ‘reasonable satisfaction’ standard (s.120(4)).
5. As the late veteran had service during the period of WW2 (s.5B), including a period of overseas service that constitutes “operational service” (s.6A), the ‘reasonable hypothesis’ standard of proof applies to the issue of whether his death was war-caused (s.120(1) and (3)[ii]). That is, the Tribunal must be satisfied a reasonable hypothesis connecting his death with the circumstances of his service is raised on the material before it.
6. When considering whether a hypothesis is reasonable the Tribunal is bound to follow established authority (see Repatriation Commission v Delidio (1998) 83 FCR 82 at 97-98).
7. In cases such as this, where there is in force a relevant Statement of Principles (“SoP”) determined by the Repatriation Medical Authority (“RMA”) (s.196B), the hypothesis that is raised will only be reasonable if it is consistent with the relevant SoP (s.120A[iii]).
8. A hypothesis may be constructed of sub-hypotheses, each of which must be found reasonable if the claim is to proceed, and more than one SoP may apply (McKenna v Repatriation Commission (1999) 86 FCR 144). In Ms Starr’s case, one of the conditions in the hypothesised chain of connection between the former veteran's death and his war service is not the subject of an SoP. In which case, the reasonableness of that sub-hypothesis falls for determination under s.120 (3) in accordance with the process discussed in the case of Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 (see Repatriation Commission v Hancock [2003] FCA 711 at [10]).
9. It is not open to the Tribunal to accept as reasonable a hypothesis that is ‘contrary to proved scientific facts or to the know phenomena of nature’ or that is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous’ (Bushell v Repatriation Commission (1992) 175 CLR 408 at 414).
10. In the event that a raised hypothesis is found to be reasonable, the claim will succeed unless the hypothesis is disproved beyond reasonable doubt (s.120 (1)). That is, the claim will succeed unless one of the facts essential to the hypothesis is disproved beyond reasonable doubt, or a fact in the material that is contrary to the hypothesis is proved beyond reasonable doubt (Bushell v Repatriation Commission (above)). It is noted that difficulties arising from the passage of time or any deficiency in the official records are to be taken into account (s.119).
evidence
11. As Ms Starr is unable to give evidence due to a medical condition and no other witnesses are required, the matter is decided on the papers. The Tribunal has before it the following materials that are accepted into evidence and labelled.
EXHIBITDESCRIPTION
T1-T10Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
AReport by Dr M. G. Miller dated 21 June 2002.
BReport by Professor M. O’Rourke dated 12 June 2002.
CReport by Professor M. O’Rourke dated 5 June 2002.
DClinical notes of Dr R. Keatinge.
EReport by Mr B. O’Keefe dated 22 February 2003.
FClinical notes of the Tenterfield Health Service.
GMedical records from the Royal Brisbane Hospital
HSubmissions on behalf of Ms Starr dated 28 April 2003 and 19 June 2003.
ISubmissions on behalf of the Repatriation Commission dated 10 June 2003.
summary findings
12. The late veteran has operational service from 5 December 1941 until 12 September 1947.
13. The late veteran commenced a marriage-like relationship with Ms Starr in or about 1967, which continued until his death.
14. Considering all of the material, a hypothesis connecting the late veteran’s death with dyslipidaemia and alcohol consumption and his operational service is raised. There is material pointing to each of its essential elements.
15. The hypothesis is a reasonable hypothesis. In relevant part, it is consistent with SoP Instrument Number 53/2003 concerning ischaemic heart disease, satisfying factor 5(d) in relation to dyslipidaemia. There is no SoP determined in relation to dyslipidaemia. In remaining part, the hypothesis is not contrary to scientific facts or fanciful, incredible, too remote or too tenuous.
16. The hypothesis is not disproved beyond reasonable doubt.
decision
17. The decision under review is set aside. The late veteran’s death was war-caused and Ms Starr is entitled to a War Widow’s Pension. The matter is remitted to the Repatriation Commission to determine the correct pension that is payable in accordance with these reasons.
reasons for decision
18. Making this decision I have carefully considered all of the material before me, the submissions of the parties, the relevant caselaw and legislation. I note there is no legal onus of proof on either party in relation to any matter that is relevant to the determination of Ms Starr’s claim for pension (s.120(6)).
marriage-like relationship
19. It is not in dispute that Ms Starr lived in a marriage-like relationship with the late veteran from 1967 until his death in 1999. Considering the evidence before me and the matters to which I must have regard (s.11A), I am satisfied that the relationship between Ms Starr and the late veteran was a marriage-like relationship. I am persuaded to that conclusion by the evidence of Ms Starr and Mr Bruschweiler, which I accept, concerning the characterisation, duration and circumstances of her relationship with the late veteran, in relation to financial matters, ownership of assets, domestic arrangements and social and intimate affairs.
service
20. It is not in dispute that the late veteran served in the Citizen’s Military Forces from 3 February 1941 to 5 December 1941, and in the Australian Infantry from 5 December 1941 to 12 September 1947 (T4, f24). On 21 June 1942 he was posted to the 2/5 Australian Armoured Regiment (“2/5AAR”) in New South Wales. He transferred with his unit to Western Australian in January 1943 and remained there until 25 March 1944 when he moved to Queensland with his unit. He remained with that unit in Queensland until 23 October 1945, when he transferred to the Special Investigation Branch. On 29 June 1946 the late veteran departed Sydney for Japan on escort duty aboard the HMAS River Mitta and returned on 23 August 1946 (Ex E, pp1-2).
21. It follows and I am satisfied that the late veteran has operational service from 5 December 1941 until 12 September 1947.
diagnosis
22. The existence of a particular disease (Gosewinckel v Repatriation Commission (1999) 59 ALD 690 at [49]) or ’kind of death’ (Repatriation Commission v Hancock (above) at [11]) is to be determined on the balance of probabilities to the reasonable satisfaction of the decision-maker.
23. I am reasonably satisfied that the late veteran died from ischaemic heart disease having previously suffered from dyslipidaemia. In so finding I am persuaded by and accept the evidence of Drs Keatinge (T25 and Ex D), O’Rourke (Ex C) and Miller (Ex A).
hypothesis
24. For Ms Starr’s claim to succeed, a reasonable hypothesis must be raised without contradiction beyond reasonable doubt. Thus, it must first be determined whether a hypothesis connecting the late veteran’s death with the circumstances of his operational service is raised on all the material before me. Each element that is essential to the hypothesis must be pointed to, by that material, before it can be said that the hypothesis is raised (Connors v Repatriation Commission (2000) 59 ALD 61).
25. Ms Starr’s representative raised the following hypothesis of connection (Ex H, par 10):
“(a) that the late veteran’s death was contributed to by ischaemic heart disease;
(b) the ischaemic heart disease was caused or contributed to by dyslipidaemia;
(c) the dyslipidaemia was caused or contributed to by alcohol consumption;
(d) the alcohol consumption was caused or contributed to by war service.”
26. It is necessary to analyse the hypothesis in relation to all the evidence before me. This process of analysis and evaluation should not be confused with a process of fact finding, which it is not. It is neither appropriate nor necessary nor is there cause to find facts at this stage. It is necessary however, to consider and analyse the material before me, and the ’raised facts’ on which the hypothesis of connection rests, in order to determine whether that hypothesis is raised on the material and whether it is reasonable. I am mindful of the authorities on this point (see Elliott v Repatriation Commission (2002) 73 ALD 377 at [25-26]) and proceed with due care.
27. There is material before me that points to the late veteran’s death being caused, at least in part, by ischaemic heart disease (see T4, f23). The late veteran’s death certificate records that the cause of his death was “respiratory failure due to coronary atherosclerosis”. Dr O’Rourke reported the firm view that the late veteran died “as a consequence of coronary atherosclerosis and ischaemic heart disease causing cardiac failure” (Ex C, p3). Ischaemic heart disease is a term that describes cardiac disability as a result of insufficient blood supply to the muscle tissue of the heart, which may be caused by atherosclerosis (see definition of Ischaemic Heart Disease in SoP 53/2003 [iv]). I note that Dr O’Rourke reports a “strong family history of ischaemic heart disease, with his father and brother dying from this” (Ex C, p.3) and “multiple risk factors for ischaemic heart disease” (Ex C, p4).
28. That ischaemic heart disease may be caused by dyslipidaemia is a scientific fact that is accepted by the RMA and provided for at factor 5(d) in SoP53/2003. “Dyslipidaemia” is defined in SoP53/2003[v]. Consistent with that definition, Dr Miller reported that the late veteran suffered from “at least two recorded elevated levels of blood lipids” prior to the onset of ischaemic heart disease (Ex A, p 5). On 27 April 2000, Dr Keatinge reported on the late veteran’s history and treatment of raised lipid levels (T4, f25) recording in his clinical notes “Chol - 7.5 Triglicide - 5.6” on 25 September 1992 and “Cholesterol of 7.4” on 29 October 1992 (Ex D, p 4).
29. There is material pointing to the role of the late veteran’s alcohol consumption in the causation of his dyslipidaemia. It is an accepted scientific fact that daily consumption of alcohol can cause “massive and clinically significant hyperlipidemia” (Ex I, Attachment p 2). This is reflected in Dr Keatinge’s evidence that the late veteran’s elevated lipid levels were caused, at least in part, by his consumption of alcohol over a period of “ 30 plus years” (T4, f25). Dr Miller also reported that the late veteran’s alcohol consumption contributed to his raised lipid levels (Ex A, p5).
30. This much is not in dispute.
31. The remaining limb of the hypothesis contended for by Ms Starr concerns the relationship between the late veteran’s alcohol consumption and the circumstances of his operational service. It is this ’connective link’ that is in question. Dr Miller comments (Ex A, p5):
“If [the late veteran’s] alcohol consumption is considered to be war-related, then I consider that there is a reasonable hypothesis that his death from ischaemic heart disease relates to his service.”
32. Put differently, in the absence of material pointing to a relationship between the late veteran’s consumption of alcohol and his operational service, the hypothesis cannot be considered to be a “reasonable hypothesis” and the claim must fail. The requisite relationship is one in which the death of the veteran “resulted from an occurrence” on operational service or “arose out of, or was attributable to” that service. It follows that a temporal relationship, alone, is insufficient for the purpose. Elements of causation lie at the heart of the relationship, the measure of which must be material.
33. In Ms Starr’s case the evidence of Mr Bruschweiler points to a temporal relationship between the late veteran’s alcohol consumption and his operational service. Mr Bruschweiler’s evidence is that the late veteran commenced drinking during his war service and “was considered to be a heavy drinker” (T30). Mr Bruschweiler states that he did not witness at first hand the late veteran’s alcohol consumption habits in the period from 1942, when he commenced dating the late veteran’s sister, until they were married in 1946, but did so thereafter. Mr Bruschweiler’s evidence is compelling because his recollections are contemporaneous with the late veteran’s service.
34. There is no evidence before me from the late veteran concerning his consumption of alcohol during operational service or the reasons for it.
35. Ms Starr’s evidence was that the late veteran started drinking alcohol on service due to “service pressure” and drank six to eight glasses of beer on a daily basis from “1941 or 1942” for “30 – 40 years”, reducing his alcohol consumption in “about 1992…because he thought it was affecting his health” (T4, p.27-28). Dr O’Rourke reported a similar history “drinking 6-8 glasses of beer per day during the latter part of his service and up until 1992” (Ex C, p 1). Dr Keatinge makes a similar report that the late veteran’s “alcoholism … seemed to start during the War … Evidence from his brother, brother-in-law, & his partner of 33 years-Joan Starr indicated that he was drinking about 6-8 glasses of beer daily during this period” (T25).
36. There is no material from the late veteran’s brother before me.
37. In the Repatriation Commission’s submission, the evidence of Ms Starr, Dr Keatinge, Dr O’Rourke and Dr Miller does not go to the requisite relationship directly. There is no dispute that Ms Starr met the late veteran in 1965 and did not, therefore witness his consumption of alcohol before that time or during his operational service. Similarly, it is accepted that Dr Keatinge, the late veteran’s treating General Practitioner, did not actually witness the late veteran consuming alcohol on service. There is nothing to suggest, however, that Ms Starr and Dr Keatinge have done other than repeat a history given to them by the late veteran to the best of their knowledge. In the absence of the late veteran this does not mean their evidence should be discounted or dismissed.
38. The evidence of Ms Starr and Dr Keatinge points to a causal relationship between the late veteran’s consumption of alcohol and his operational service for the purpose of hypothesis. Mr O’Keefe’s evidence indicates that alcohol was available to the late veteran’s 2/5AAR unit and that (Ex E, p 5):
“…there was a culture of beer drinking within the unit. This culture may have arisen in part from the unit’s continual frustration at not being sent overseas to participate in the fight against Japan. Under these circumstances, there may have been a connection between [the late veteran’s] Army service and his consumption of alcohol after the war.”
39. In the Repatriation Commission’s submission Mr O’Keefe’s observations merely construct possibilities rather than probabilities in relation to the late veteran. That may be true, however, Mr O’Keefe’s evidence indicates there was a culture of drinking beer in 2/5AAR during the period of late veteran’s service in that unit.
40. I must consider all of the material before me. I am satisfied that the evidence of Mr Bruschweiler, Ms Starr, Dr Keatinge and Mr O’Keefe points to the requisite relationship and is sufficient to raise the hypothesis in question.
41. It follows that a hypothesis connecting the late veteran’s death with his operational service is raised on the material before me. Material may point to an occurrence or a circumstance without being proved for the purpose of hypothesis. While the reasonableness of the hypothesis is to be tested pursuant to s.120(3) or 120A(3), the test of the occurrence or circumstance is under s.120(1).
statement of principles
42. Following the Delidio formulation (above), it is necessary to determine whether a relevant SoP has been determined by the RMA. The relevant SoP that is applicable to the late veteran’s death is SoP53/2003 concerning Ischaemic Heart Disease. The RMA has neither determined a SoP concerning dyslipidaemia pursuant to s.196B nor stated its intention to investigate dyslipidaemia pursuant to s.196G. It follows that sub-hypotheses concerning the connection of dyslipidaemia with alcohol consumption and the circumstances of the late veteran’s operational service do not fall for consideration under the SoP scheme (s.120A) and must be considered under s.120(3).
43. SoP53/2003 replaced an earlier SoP concerning Ischaemic Heart Disease (Instrument Number 38 of 1999). There is nothing of consequence arising from any distinction between the two SoPs.
is the hypothesis reasonable?
44. The Full Court concluded in Delidio (above) that a hypothesis raised on the material is reasonable if it fits the template of the relevant SoP. This requires at least one of the factors set out in the relevant SoP to be satisfied.
45. In Ms Starr’s case, she submitted and I am persuaded that the raised material is consistent with factor 5(d):
“5(d)the presence of dyslipidaemia before the clinical onset of ischaemic heart disease; or”
I accept Dr Keatinge’s evidence concerning the late veteran’s raised lipid levels on at least two occasions in 1992 is consistent with the presence of dyslipidaemia at that time. The date of clinical onset of ischaemic heart disease is not clear on the evidence. However, there is clinical evidence that the late veteran experienced biventricular failure and ischaemic chest pain for which he first sought treatment on 21 August 1996 (Ex G, f38). The clinical onset of a condition occurs when the symptoms of the condition are sufficient to enable a clinician to diagnose the condition (Cornelius v Repatriation Commission [2002] FCA 750 at paragraph 26-28). On this basis I am satisfied that it is more probable than not that the late veteran’s dyslipidaemia preceded the clinical onset of ischaemic heart disease.
46. It follows that the first two limbs of the hypothesis of connection are consistent with the template of SoP53/2003 and are reasonable therefore.
47. It remains for me to determine whether the remaining two limbs of the raised hypothesis, in relation to which there is no relevant SoP, are reasonable. The test of reasonableness is not founded on mere possibility. A hypothesis that is raised on material before the decision maker will be reasonable if it is “pointed to by the [raised] facts” even though the “raised facts” are not proved on the balance of probabilities (Repatriation Commission v Bey (1997) 79 FCR 364).
48. What is required is material that goes to a causal relationship between the late veteran’s alcohol consumption and the circumstances of his operational service (see Woodward v Repatriation Commission [2003] FCAFC 160 at [83-84]). It is not necessary to prove the precise circumstances in which the late veteran’s alcohol consumption occurred on operational service (see Hughes v Repatriation Commission (1990) 13 AAR 34 at pp 37-38).
49. Relying on the words of Gyles J in the case of Bull v Repatriation Commission [2001] FCR 823 at [13], the Repatriation Commission submitted that there is “no direct material before the Tribunal actually going to the central part of the hypothesis of connection between war service and excessive drinking, which remains entirely a matter of inference”. However, Bull’s case is distinguished from that of Ms Starr. In Mr Bull’s case a causal relationship between his consumption of alcohol and his service was not pointed to by the material; he drank before service, he drank during service and he drank after service.
50. In Ms Starr’s case there is material that goes to the central part of the hypothesis connecting the late veteran’s consumption of alcohol and his operational service. Her evidence is that the late veteran commenced drinking on service because of “service pressure” and continued to drink thereafter until 1992 when he reduced his alcohol consumption (T4, p27-28). The evidence of Mr Bruschweiler, the late veteran’s brother-in-law who observed him consuming alcohol after 1946, points to the late veteran starting to drink alcohol, and to drink heavily, at the time of his service (T4, p30). Dr Keatinge’s evidence concerning the commencement of the late veteran’s consumption of alcohol is consistent with Mr Bruschweiler’s statement and also goes to the requisite relationship between war service and alcohol consumption (T4, p25):
“This seemed to start during the War when he spent about 2 years with the Armoured division in WA. This was an extremely boring appointment & many soldiers started drinking heavily during the long periods of idleness.”
Dr Keatinge’s evidence is supported by the evidence of Mr O’Keefe concerning a culture of drinking alcohol in 2/5AAR (Ex E, pp 3-5).
51. I do not accept the Repatriation Commission’s submission that Dr Keatinge’s evidence “remains pure conjecture”. The Commission did not require Dr Keatinge for cross-examination to test his evidence, especially on the question of whether he was recounting a history given to him by the late veteran or “surmising from his knowledge”. Dr Keatinge was the late veteran’s treating General Practitioner for almost a decade prior to his death. There is nothing before me to suggest that Dr Keatinge’s evidence should not be accepted on its face, reflecting a history recounted to him by the late veteran.
52. In the Repatriation Commission’s submission the case of Hughes v Repatriation Commission (above) is to be distinguished from the case at hand. Clearly the cases can be distinguished on the facts, however the essential principles applying to the reasonableness of a raised hypothesis apply equally in Hughes and in Ms Starr’s case. In Hughes, a hypothesis connecting that veteran’s smoking habit with his war service was accepted as reasonable in circumstances in which the veteran commenced smoking during war service but in the absence of material clarifying how and in what circumstances the smoking commenced or continued. In the Commission’s submission there is a material difference between the “addictive qualities” of nicotine and alcohol, contending “[a]lcohol does not necessarily result in addiction or dependence, whereas smoking is highly addictive”. That may be so, although there is no material before me to support the proposition. Nonetheless, alcohol is a substance of addiction. The material before me points to the “raised fact” that the late veteran commenced drinking alcohol and drank heavily during service in 2/5AAR and continued thereafter to drink six to eight glasses of beer on a daily basis until 1992.
53. Proof of facts is not in issue at this stage. The position was succinctly set out in Repatriation Commission v Bey (above) at FCR 365:
“The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the “raised facts”) and if the hypothesis can be regarded as reasonable assuming the raised facts to be true.”
54. In this case Ms Starr relies on the following “raised facts”:
(a)The late veteran served in 2/5AAR (service records, evidence of Mr O’Keefe).
(b)Alcohol was available and there was a culture of beer drinking in 2/5AAR, due at least in part to the frustration arising from remaining in Australia rather than engaging on active service overseas, commenced consuming alcohol on service (evidence of Mr O’Keefe).
(c)The late veteran commenced consuming alcohol during the period of his operational service (evidence of Ms Starr, Mr Bruschweiler, Dr Keatinge).
(d)He commenced consuming alcohol because of service pressures (evidence of Ms Starr, Dr Keatinge).
(e)He was a heavy drinker at that time (evidence of Mr Bruschweiler).
(f)His regular consumption of alcohol persisted after service (evidence of Ms Star, Mr Bruschweiler) until 1992 (evidence of Ms Starr).
(g)Consumption of alcohol is a factor in the causation of dyslipidemia (Ex I, Attachment, p2; evidence of Dr Keatinge, Dr Miller).
55. The “raised facts” in this case point to the essential elements of the sub-hypotheses in question, that is to a temporal and a causal relationship between the late veteran’s dyslipidaemia and his consumption of alcohol and the circumstances of his operational service. It is true that there is no direct evidence of the specific circumstances in which the late veteran commenced drinking alcohol on service, or the precise “service pressure” to which Ms Starr attributes that occurrence. Although Dr Keatinge’s evidence attributes his drinking to boredom, Mr O’Keefe’s evidence goes to a culture of beer drinking and frustration in 2/5AAR.
56. The lack of illumination on the precise circumstances in which the late veteran started drinking alcohol and his reasons for doing so does not lead me to conclude that the raised hypothesis is too remote or too tenuous. Ms Starr is not available to give further evidence in support of her claim. The late veteran and his brother have passed away. There is no available witness to shed further light on the precise circumstances in question that occurred sixty years ago. Nonetheless, the material before me points to a causal relationship between the late veteran’s consumption of alcohol and the circumstances of his operational service to the extent that the raised hypothesis concerning that relationship is not too remote or too tenuous.
57. I am required to take into account any difficulties arising from the passage of time (s.119), such as those to which I have referred, and I note the beneficial nature of the veterans’ entitlements legislative scheme.
58. Considering all the material before me I am satisfied on the balance of probabilities that the hypothesis connecting the late veteran’s death with the circumstances of his operational service in 2/5AAR is a reasonable hypothesis, comprising more than mere possibilities that are consistent with the known facts.
59. The test of the hypothesised causal connection between the late veteran’s operational service and his death is under s.120(1). That is, a causal connection will be found unless the contrary is proved beyond reasonable doubt.
was the death war-caused?
60. There is nothing in the material before me that disproves, beyond reasonable doubt, any of the “raised facts” on which the raised hypothesis of connection rests or proves, beyond reasonable doubt, the truth of a fact that is inconsistent with the hypothesis. It follows that the raised hypothesis is not disproved beyond reasonable doubt and Ms Starr’s claim must succeed.
61. This being the case, I find that the late veteran’s death was war-caused and Ms Starr is entitled to a Widow’s Pension.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: A. Krilis
AssociateDate of Decision 11 December 2003
Solicitor for the Applicant Ms Nell Archer
Advocate for the Respondent Ms Philippa Hook
[i] Section 8 War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
[ii] Section 120 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.
…
(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.
…
[iii]Section 120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A (1) …
(3)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.
…
[iv] SoP 53/2003: Kind of injury, disease or death
2. …
(c)For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
…
[v] SoP 53/2003: Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:
…
(d)the presence of dyslipidaemia before the clinical onset of ischaemic heart disease; or
…
8.For the purposes of this Statement of Principles:
…
“dyslipidaemia” generally means evidence of a persistently abnormal lipid profile after the accurate evaluation of serum lipids following a 12 hour overnight fast, and estimated on a minimum of two occasions as :(a)total serum cholesterol level greater than or equal to 5.5 mmol/L; or
(b)fasting serum triglyceride level greater than or equal to 2.0mmol/L together with high density lipoprotein cholesterol level less than 0.9 mmol/L;
…
0
13
0