Sweeting and Repatriation Commission - [2002] AATA 617

DECISION AND REASONS FOR DECISION [2002] AATA 617

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/406

VETERANS' APPEALS DIVISION          )
           Re      ANITA SWEETING
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date26 July 2002
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  ..................(Sgnd)...................
  Mr I R Way
  Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – whether veteran's condition of multiple myeloma was war-caused – whether factors in SoP exist or are satisfied - whether reasonable hypothesis established

Veterans' Entitlements Act 1986 ss 8, 13, 14, 119, 120

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

26 July 2002 Mr I R Way, Member

This is an application by Anita Sweeting (the Applicant) for a review of a decision of the Veterans' Review Board dated 20 February 2001, affirming a decision of the Repatriation Commission (the Respondent) dated 4 September 2000, that refused the applicant's claim to have the death of Lionel Sweeting (the applicant's husband) accepted as war-caused.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-12). The applicant was self-represented and gave oral evidence.
Under section 13 of the Veterans' Entitlements Act 1986 ("the Act"), the Commonwealth is liable to pay a pension by way of compensation to the dependants of the veteran, where the death of the veteran was "war-caused". A dependant of a deceased veteran, including a widow (see section 11) may make a claim to a pension under section 14.
The applicant is the widow of a veteran who rendered "operational service" as defined in sections 5B and 6A of the Act, namely continuous full time service outside Australia during World War II.
Mr Sweeting (the veteran) rendered operational service, having served with the RAAF from 27 October 1942 to 18 September 1947, including service in Japan from 22 February 1946 to 13 August 1947.
The applicant contends that her husband's death was a result of his service in Japan.
The Applicant has raised the following hypothesis:

the veteran's death was the result of multiple myeloma;
multiple myeloma can be caused from being in Hiroshima after the explosion of the atomic bomb dropped on that city on 6 August 1945;
the veteran served with the RAAF at Hiroshima from 22 February 1946 to 13 August 1947 and, as a result of exposure to the after effects of the bomb on Hiroshima, developed multiple myeloma, the ultimate cause of his death.

The veteran was born on 6 April 1923 and died on 12 June 2000, the cause of death shown on the death certificate as:
"(a)     uraemia – 2 weeks
(b)    chronic renal failure – years
(c)    multiple myeloma – years"

Legislative Framework

The question whether the death of each veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regards to the meaning of the expression "war-caused", the relevant part of section 8 provides:
"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;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
but not otherwise."

Section 120 describes the relevant standard of proof:
"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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."

Other relevant provisions of the Act in respect of the claim are as follows:
"119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a)a claim or application;
…
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

Section 120A provides that the reasonableness of the hypothesis is to be assessed by reference to the relevant Statement of Principles (SoP):
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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;
…
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be."

Section 120(1) provides that the decision-maker must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Only if the decision-maker is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the decision-maker determine that the death of such a veteran was not "war-caused".
Section 120(3) provides that the decision-maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the decision-maker, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
The Act provides that a hypothesis is not reasonable for the purposes of section 120(3) unless the Statement of Principles (SoP) upholds the hypothesis.
The relevant SoP in this matter is Instrument No 72 of 1999. The SoP provides as follows:
"Basis for determining the factors
3.     The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that myeloma and death from myeloma can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.     Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.     The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting myeloma or death from myeloma with the circumstances of a person's relevant service are:
(a)   having been within four kilometres of the epicentre of the atomic bomb explosions on either Hiroshima or Nagasaki within the seven days immediately following the explosion on either of those cities, before the clinical onset of myeloma; or
(b)   being occupationally required to work as a painter for an average of three or more days per week over any two year period, or working as a painter for a period or periods of time totalling at least 312 days before the clinical onset of myeloma, and where that occupational exposure has ceased, the clinical onset of myeloma has occurred within 20 years of cessation; or
(c)   spraying or decanting a herbicide containing 2,4-dichloro-phenoxyacetic acid (2,4-D) or 2,4,5- trichlorophenoxyacetic acid (2,4,5-T), in circumstances likely to result in inhalation or absorption of the herbicide, at least five years before the clinical onset of myeloma; or
(d)   being on land in Vietnam or at sea in Vietnamese waters, for at least 30 days, at least five years before the clinical onset of myeloma; or
(e)   inability to obtain appropriate clinical management for myeloma.
Factors that apply only to material contribution or aggravation
6. Paragraph 5(e) applies only to material contribution to, or aggravation of, myeloma where the person's myeloma was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers."

Applicant's Evidence and Submissions

The applicant was born on 21 April 1922 and married Lionel Sweeting on 29 June 1956, having first met him in 1953. She said that her husband was a welder/mechanic during his service in the RAAF and it was in this capacity that he served with 5 Airfield Constructions Squadron (ACS) in Japan, restoring the airfield at Hiroshima. It was the applicant's evidence that her husband was first diagnosed with Myeloma 13-14 years ago and for a long time he could not hear or walk. She said the veteran never smoked and never drank, except in the last year of his life when he might share a can of beer with her.
She said there was no history of myeloma in her husband's family. Her husband used to like exercise and lived a normal life. It was her contention that in the absence of any other reason she was of the view that it was his exposure to atomic contamination and the radiation in Hiroshima that led to him contracting myeloma. It was her evidence that the Applicant suffered from a rigorous existence in Japan, there being no protective clothing, either for severe winter conditions or radiation protection. In respect of the veteran's service in Japan, the applicant showed the Tribunal a photograph the veteran had taken of the devastation at the epicentre of the atomic bomb in Hiroshima and she also provided a book, including some pages outlining the activities of 5 ACS in Japan.
Further in her evidence the applicant told the Tribunal of the many difficulties she faced in looking after her husband in the later years of his life.
She said her husband never made any claim at all for assistance from the Government and that she suffered severe financial hardship because of the expenses of looking after her husband. It was her evidence that she had to sell her home after her husband died to pay her debts.
Respondent's Submissions
The respondent submitted in respect of the Hiroshima bomb that the bomb was dropped on 6 August 1945, that there is no record of any Australian involvement in the bombing of Hiroshima or in areas adjacent to where the bomb was exploded and that, by the time Australian troops arrived at Hiroshima in February 1946, radiation levels had returned to background levels.
The respondent contended that the veteran's myeloma was not caused by or as a result of his service, in that his service circumstances were such that he did not meet the criteria of the relevant SoP, namely Factor 5(a).
Consideration
In Repatriation Commission vDeledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98):
"the approach to be taken by the Tribunal in cases such as the present, (ie one involving a claim to be decided after the 1994 amendments in respect of the death of a person related to service rendered by that person [is], as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
With respect to the third step, determining when a hypothesis is reasonable, Heerey J followed the test for 'reasonableness' approved in Byrnes v Repatriation Commission (1993) as follows:
'Therefore when s 196B(2) says a factor "must ….exist" and "must be related to service", it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact' (at 47 ALD 275)."

With respect the Tribunal adopts this approach.
After consideration of all of the material before it, the Tribunal is satisfied that the veteran died from multiple myeloma and that he rendered operational service in Hiroshima in Japan from 22 February 1946 to 13 August 1947.
Within this context the Tribunal is of the view that the material before it points to a hypothesis as contended by the applicant.
The Tribunal is further satisfied that there is in force a relevant SoP, Instrument No 72 of 1999 concerning multiple myeloma.

The question then before the Tribunal is whether the hypothesis raised by the applicant is a reasonable one. As stated in Deledio the hypothesis raised must be consistent with the "template" to be found in the SoP and as such the hypothesis raised must contain one or more of the factors set out in paragraph 5 of the SoP (see paragraph 16 above).
While the Tribunal is sympathetic to the applicant's contention that her husband's service in Hiroshima had an adverse effect of his health and that she had, with considerable difficulty, looked after and supported her husband for many years prior to his death, the applicant's hypothesis must fit within the template of the SoP to be deemed reasonable.
Factor 5(a) of the relevant SoP requires the veteran to have rendered relevant service "within 4 kilometers of the epicentre of the atomic bomb explosion on either Hiroshima or Nagasaki within the 7 days immediately following the explosion on either of those cities, before the clinical onset of myolema". In so far as this factor is concerned, the uncontroverted evidence before the Tribunal is that the veteran commenced service in Hiroshima on 22 February 1946, some 6½ months after the bomb was exploded. As such the Tribunal finds that Factor 5(a) of the relevant SoP does not exist or is not satisfied.
After consideration of all of the material before it and the submissions of both parties the Tribunal is also satisfied that none of the other minimum factors in paragraph 5 of the relevant SoP exist or are satisfied.
Consistent with its findings above, the Tribunal finds that there is no reasonable hypothesis connecting the veteran's death with the circumstances of his operational service.
Accordingly the Tribunal finds pursuant to sub-sections (1) and (3) of section 120 of the Act that the veteran's death was not war-caused within the meaning of section 8 of the Act.

The Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  2 July 2002
Date of Decision  26 July 2002
The Applicant Appeared in Person
For the Respondent                 Mrs McConnell

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Citations

Sweeting and Repatriation Commission [2002] AATA 617

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Repatriation Commission v Gosewinckel [1999] FCA 1273