Sylvia Sandry and Repatriation Commission
[2012] AATA 71
•9 February 2012
[2012] AATA 71
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/2848
Re
Sylvia Sandry
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms J L Redfern, Senior Member
Dr I Alexander, MemberDate 9 February 2012 Place Sydney The Tribunal affirms the decision under review.
..........[sgd]..............................................................Ms J L Redfern, Senior Member
Catchwords
VETERANS’ ENTITLEMENTS – widows’ pension – whether veteran’s death war-caused – reasonable hypothesis – whether cirrhosis caused by hepatitis virus – onus of proof in relation to diagnosis of hepatitis – insufficient material to raise reasonable hypothesis – material raised does not fit the statement of principles – decision under review affirmed.
Legislation
Veterans’ Entitlement Act 1986: ss 8, 13, 120(1), 120(2), 120(3), 120(4), 120(6), 120A
Cases
Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
Cameron v Repatriation Commission [2003] FCA 1323; (2003) 77 ALD 81
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Elliott v Repatriation Commission [2002] FCA 26; (2002) 73 ALD 377
Fuss v Repatriation Commission [2001] FCA 1529
Onorato v Repatriation Commission [2011] FCA 1507
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82Secondary Materials
Statement of Principles – Chirrhosis of the Liver – Instrument No 108 of 2007
Statement of Principles – Hepatitis B – Instrument No 52 of 2008
Statement of Principles – Hepatitis C – Instrument No 54 of 2008REASONS FOR DECISION
Ms J L Redfern, Senior Member
Dr I Alexander, Member9 February 2012
BACKGROUND
The applicant, Sylvia Sandry, is the widow of Maurice Sandry, who served in the Royal Australian Air Force from 18 February 1944 to 23 November 1963. He had eligible war service from 1944 until 1951 and operational service from September 1954 to April 1955.
Mr Sandry died on 5 February 1969 at the age of 43 from cirrhosis of the liver. This is not in dispute.
Mrs Sandry seeks a review of the decision made by the Repatriation Commission (the Commission) and affirmed by the Veterans’ Review Board (the Board) to refuse her claim for a pension under the Veterans’ Entitlement Act 1986 (the Act).
The issue in dispute turned on whether Mr Sandry’s death was “war-caused” under the Act. When Mrs Sandry initially made her application, her claim was based on Mr Sandry's consumption of alcohol. The Commission and the Board rejected this claim. Mrs Sandry did not pursue this at the hearing and contended that Mr Sandry developed cirrhosis as a result of hepatitis which he was said to have contracted while being treated in hospital in Japan during his operational service. The Commission also rejected this claim.
LEGISLATIVE FRAMEWORK
Section 13 of the Act provides that where the death of a veteran is “war-caused” the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran. Section 8 provides that a death is “war-caused” if it resulted from an occurrence that happened while the veteran was rendering “operational service”.
The standard of proof to be applied in the case of operational service in determining whether a death was war-caused is that provided for in subsections 120(1) and (3). Under these provisions, if the death relates to operational service, the Commission shall determine that the death was war-caused unless it is satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the veteran’s service. Because Mrs Sandry’s claim was lodged after 1 June 1994, s 120A of the Act applies. Section 120A of the Act provides that where the Repatriation Medical Authority has made a Statement of Principles (SoP) in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis connecting the relevant injury, disease or death with the veteran’s operational service is to be assessed by reference to that SoP. The Commission (and therefore the Tribunal) must have reference to that SoP when considering whether the hypothesis is reasonable.
Subsection 120(4) provides that, except in making a determination to which subsections (1) or (2) applies (subsection (2) is not relevant in this matter), the Commission shall decide any other matter arising under the Act or the regulations "to its reasonable satisfaction". Subsection 120(6) provides that neither party has any onus of proving any matter relevant to the determination of the claim.
The approach to be taken when applying these provisions was determined by the Full Court of the Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 (Deledio) and involves a four-step process. Those principles, as referred to by the Full Court (at 97) and as they apply to this case, can be summarised as follows:
(a)The Tribunal must consider all of the material before it and determine whether the material points to a hypothesis connecting the death with the circumstances of the particular service;
(b)If the material raises such a hypothesis, the Tribunal must ascertain whether there is a SoP in force;
(c)If there is a SoP in force, the Tribunal must consider whether the hypothesis is reasonable by determining whether it is consistent with the “template” of the SoP, namely, it must contain one or more of the factors listed in the SoP; and
(d)The Tribunal must then proceed to consider under s 120(1) of the Act whether it is satisfied beyond reasonable doubt that the death was not war-caused. According the Full Court, “It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.”
HYPOTHESIS ADVANCED AND THE EVIDENCE
The hypothesis advanced by Mrs Sandry is that her husband’s cirrhosis developed as a result of having a chronic infection with the hepatitis B virus, or alternatively the hepatitis C virus, which he contracted while being treated in hospital in Japan with an infected toe in September 1954.
It is not in dispute that Mr Sandry was in hospital in Japan, nor that he had an infected toe and was treated with penicillin and dressings. There is little detail about his treatment and it is not known whether he was given any injections while in hospital. There is no record about whether Mr Sandry contracted hepatitis B or C while he was in hospital nor is there any evidence about whether he had this condition before or at the time of his death.
After Mr Sandry left the Air Force in 1963, he worked as a labourer. There were no reports of health problems on discharge but Mr Sandry’s condition deteriorated rapidly just before he died. He was admitted to Royal Prince Alfred Hospital (the date is not known) and because of the age of the matter, there are no medical records now available relating to his admission. Similarly, there are no records from Mr Sandry’s general practitioner but Mrs Sandy provided a statement noting that Mr Sandry suffered from anaemia and this was diagnosed by his treating doctor a few months after Mr Sandry left the Air Force.
According to the death certificate, the cause of death and duration of Mr Sandry’s last illness before death was as follows:
I (a) Gastro-intestinal haemorrhage 1 day
(b)Pancytopaenia months
(c)Hypersplenism months
IICirrhosis years
Diffuse pulmonary fibrosis years
Mrs Sandry relied on the evidence of Dr Nicholas Talley, Emeritus Consultant Physician and Gastroenterologist, to support the hypothesis. Dr Talley provided a report and gave oral evidence. According to Dr Talley, it is likely that Mr Sandry would have been given antibiotics by intravenous injection. It is possible he may have been given an injection with a poorly sterilised needle, which could have “quite easily” infected him with hepatitis B or possibly hepatitis C. Dr Talley told the Tribunal that hepatitis B and C were “more common” in Japan than in Australia, although he did not provide any information to support this assertion. Any infection would have been undiagnosed at that stage, as hepatitis was not known until 1968, and in any event Mr Sandry could have had a low grade hepatitis infection for many years after 1954 “without being particularly affected by it”. There was evidence Mr Sandry drank alcohol but Dr Talley opined that it was “most unlikely” he drank enough to die of alcoholic liver disease or that this was the cause of his death at 43. Mr Sandry’s liver disease may have been subclinical and his final illness may have been hepatoma (liver cancer) which Dr Talley stated is “a common complication of cirrhosis due to hepatitis B and hepatitis C.” It was consistent with the diagnosis of pulmonary fibrosis and may have explained why he had pancytopenia (low blood cell count) and hypersplenism. According to Dr Talley, there is no other theory to explain his death from cirrhosis at such a young age.
There are a number of SoPs relevant to this matter. John Dodd, counsel for Mrs Sandry, contended that the relevant SoP was Instrument No 108 of 2007 “concerning cirrhosis of the liver” and in particular factors 6(c): “having chronic infection with the hepatitis B virus before the clinical onset of cirrhosis of the liver” or 6(d): “having chronic infection with the hepatitis C virus before the clinical onset of cirrhosis of the liver”.
It is common ground there is no evidence that any of the other factors in SoP No 108 of 2007 are relevant or could apply in this case.
Tim O’Reilly, advocate for the Commission, contended there were specific SoPs relevant to these diseases and Mrs Sandry needed to establish one or other of these diagnoses by reference to SoP No 52 of 2008 (concerning hepatitis B) or SoP No 54 of 2008 (concerning hepatitis C) before she could satisfy SoP No 108 of 2007. These SoPs include a number of factors, none of which are relevant or could apply in this case, save for the factor that Mr Sandry must have been exposed to the hepatitis B virus (or alternatively the hepatitis C virus) before the clinical onset of hepatitis B (or hepatitis C as the case may be).
Given the above, it is fundamental to the hypothesis and the SoPs, that Mr Sandry was exposed to and/or contracted hepatitis B or hepatitis C while he was in hospital in Japan.
SUBMISSIONS OF THE PARTIES
The Commission contended there is no material to support a diagnosis of hepatitis and it is mere speculation that Mr Sandry was given injections and that he was exposed to and contracted hepatitis B or hepatitis C from those injections. The diagnosis of hepatitis must be established on the balance of probabilities, applying the onus of “reasonable satisfaction” set out in s 120(4). This being the case, an essential element of the hypothesis cannot be established and the claim therefore must fail. It was not clear from Mr O’Reilly’s submissions whether he was arguing that this was a preliminary threshold issue or whether he was arguing that the claim did not pass the first step set out in Deledio. Mr O’Reilly further submitted that even if there was material pointing to the hypothesis, it was not a reasonable one as it was speculative and was based on inferences; there being no direct evidence about Mr Sandry contracting, or even being exposed to, hepatitis B or C.
Mrs Sandry contended it was not necessary to undertake any fact finding at this stage, but merely to determine whether the material raised a reasonable hypothesis if the raised facts were true. This was a case where causation was the key issue and as such, the reverse criminal onus set out in ss 120 (1) and (3) (and as explained by Deledio) applied. The material pointed to a hypothesis connecting the death of Mr Sandry to his operational service. There is a relevant SoP, being No 108 of 2007, and the hypothesis is consistent with the template of this SoP, even though the factors were not proven on the balance of probabilities. They do not need to be. Once Mrs Sandry had satisfied the first three steps in Deledio, the Tribunal must proceed to consider whether it was satisfied beyond reasonable doubt that Mr Sandry’s death was not war caused. There was no evidence contrary to the evidence of Dr Talley and no argument that the hypothesis was not based on a scientific footing and, as such, claimed she should succeed.
CONSIDERATIONS AND FINDINGS
The first step under Deledio is for the Tribunal is to consider all the material and determine whether there is material pointing to a hypothesis connecting Mr Sandry’s death with his war service. The hypothesis is that Mr Sandry contracted hepatitis B or hepatitis C while he was being treated in hospital in Japan and is based on Dr Talley’s opinion that Mr Sandry was “likely” to have been given his antibiotic by injection. It was possible the needle was poorly sterilised (because of the lack of understanding at that time about these matters) and it was therefore possible that Mr Sandry was exposed to hepatitis B or C at this time and contracted hepatitis B or C as a result of this exposure. This is said to be a “reasonable hypothesis”, having regard to the fact that Dr Talley had formed the view alcoholic liver disease was unlikely and there was no other factor to explain the death of Mr Sandry by cirrhosis of the liver at such a young age.
The question is whether we must first form a view about the diagnosis of hepatitis to our “reasonable satisfaction” before this analysis can be undertaken. Mr O’Reilly submitted that we must but Mr Dodd submitted this is not necessary or appropriate - there should be no fact finding at this stage.
This issue was recently considered by Katzman J in Onorato v Repatriation Commission [2011] FCA 1507. In Onorato, the issue before the Tribunal was whether the death of a veteran from ischaemic heart disease was war caused. It was not in dispute that the veteran had hypertension but the issue was whether the hypertension resulted from war caused “anxiety disorder”. The Tribunal decided that this question was to be determined by reference to s 120(4) as an antecedent issue. Her Honour, Justice Katzman found the Tribunal erred. Once the Tribunal determined the kind of death to its reasonable satisfaction, s 120(4) was exhausted and the reverse onus applied to the question of whether the death was war caused (at [42]).
In Onorato, as in this matter, the kind of death is not in dispute. This being the case, and following the reasoning of Katzman J, it is not appropriate to decide the issue of whether Mr Sandry was exposed to or contracted hepatitis B or C to our reasonable satisfaction but rather by reference to the process set out in Deledio. We therefore reject the submission of the Commission that it must be established on the balance of probabilities that Mr Sandry was exposed to or contracted hepatitis B or C while he was in hospital in Japan.
We nonetheless find Mrs Sandry’s claim should fail and our reasons follow.
As is clear from Deledio, there is no onus of proof or fact finding in the first three stages of the process but the Tribunal must still determine whether there is material pointing to a reasonable hypothesis and, in this case, whether the hypothesis is consistent with the relevant SoP. When making its determination, the Tribunal is “required to consider and analyse that material” (Stone J in Elliott v Repatriation Commission [2002] FCA 26; (2002) 73 ALD 377 at [25]). Her Honour went on to explain this process as follows:
This exercise is not concerned with the truth of the assertions in the material and should not be confused with an exercise in fact finding. The task is similar to scrutinising a pleading to determine if the elements of the alleged cause of action have been pleaded. A statement of claim may be struck out as failing to disclose a cause of action without any consideration of whether the facts pleaded can be substantiated. An hypothesis can be dismissed as not reasonable if the material before the commission does not raise the essential elements of the hypothesis.
However, as noted by Allsop J in Cameron v Repatriation Commission [2003] FCA 1323; (2003) 77 ALD 81 at [42]:
The dividing line between impermissible fact-finding and permissible (indeed mandated) assessment of all material, weighing each and concluding whether or not, as a whole, it points to the posited reasonable hypothesis, is not necessarily easy.
Cameron was an appeal from a decision of the Tribunal that there was no material pointing to the hypothesis that Mr Cameron had a fever, confusion or delirium on the day of his death, which contributed to his death when he was hit by a motor vehicle while crossing a street. The only evidence that there was fever and confusion was an assertion by a doctor that Mr Cameron was “likely” to have had fever and confusion resulting from his pneumonia, which was in turn related to his “war-caused” bronchitis. There was no dispute about the bronchitis and pneumonia but the key issue in dispute was whether these conditions contributed to Mr Cameron’s death. The Tribunal considered other material before it, including Mr Cameron's activities during the day, his alcohol blood reading as disclosed by an autopsy and the contrary medical evidence of another expert about the likelihood that Mr Cameron had cognitive impairment caused by fever in the circumstances, and rejected the hypothesis. The applicant appealed on the basis that the Tribunal had engaged in inadmissible fact finding.
In the view of Allsop J, the Tribunal was merely assessing all the material in coming to a view about whether that material pointed to a reasonable hypothesis. This was not fact finding and it was open to the Tribunal to reject the claim.
This is in contrast to the approach taken by the Tribunal in Fuss v Repatriation Commission [2001] FCA 1529, where Wilcox J found that the Tribunal erred when it rejected the hypothesis advanced by an expert because the applicant had not been able to “establish” that the veteran had contracted an Heliobacter pylori infection while serving in Morotai during World War 2. The Tribunal accepted that Mr Fuss served in Morotai and accepted the evidence of the expert concerning the general relationship between low socioeconomic conditions and the H pylori infection but was “disturbed by the absence of ‘particular facts’ to ‘establish’ the first element” of the hypothesis. According to Wilcox J at [55], the Tribunal applied the wrong test because:
… it is apparent that the hypothesis advanced by Dr Katelaris was rejected, not because it was "fanciful or unreal" (to use the language of East) or because it was inconsistent with known facts, but because the Tribunal was not satisfied about the factual foundation for the hypothesis. In requiring to be affirmatively satisfied of the truth of the facts assumed by Dr Katelaris, the Tribunal erred in law.
When determining whether an hypothesis raised is reasonable, the Tribunal should consider whether it is “contrary to proved or known scientific facts”, “obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous”; or “inconsistent with (not upheld by) an applicable SoP” per the test for reasonableness formulated by Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 (at 275) and cited with approval by the Full Court in Deledio at 96. Further, as stated by Emmett and Allsop JJ in Bull v Repatriation Commission [2001] FCA 1832 at [17]; (2001) 66 ALD 271 at 276, citing with approval the analysis of the Full Court in East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517:
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
In summary, the Tribunal must consider all the material and form an opinion about whether that material points to a reasonable hypothesis. The hypothesis will be reasonable if it is consistent with the relevant SoP and the material points to one or more of the factors in the SoP. In forming this opinion, it is permissible for the Tribunal to make an assessment about the material and whether it is fanciful, tenuous or too remote but it is not permissible for the Tribunal to reject an hypothesis as unreasonable on the basis that it cannot be proved on the balance of probabilities. If the hypothesis is consistent with the relevant SoP, it could not be said to be “fanciful”.
In our view, the available material (being the matters referred to in the opinion of Dr Talley, the fact that Mr Sandry was being treated in hospital in Japan for an infected toe in 1954 and died in 1969 of cirrhosis of the liver) does not raise a reasonable hypothesis connecting factors 6(c) or 6(d) of SoP No 108 with the circumstances of Mr Sandry’s service.
The difficulty is that there is little information about Mr Sandry’s condition while in hospital in 1954 or since that time. His medical records have been destroyed and his Air Force records are brief. Hepatitis was not known until 1968 and Mr Sandry was not, nor would he have been, tested for hepatitis B or hepatitis C prior to his death. There was a paucity of available material upon which to form a view, as was conceded by Dr Talley, but he nonetheless maintained his opinion that his was a “reasonable theory” based on the known facts.
Given the time that has elapsed and the lack of medical records, the hypothesis, which is based on an assumption that Mr Sandry had chronic hepatitis B or C, is based entirely on speculation: first, that Mr Sandry was given injections with poorly sterilised needles while he was being treated in hospital and, secondly, that he was exposed to and contracted the hepatitis B or hepatitis C virus. There is no other material to support this, such as evidence of incidents of this happening at the time or complaints that Mr Sandry may have had after discharge, other than anaemia, that may have supported the diagnosis. Dr Talley conceded the hypothesis (and therefore the diagnosis of chronic hepatitis) was based on the fact he could not “think of any other source”.
In summary, the matters referred to in Dr Talley’s opinion are based on speculation. There is no material to point to any basis for the opinion that Mr Sandry was “likely” to have been injected with antibiotics. On the assumption Mr Sandry did receive injections in hospital, there is no material to point to any basis for the opinion that Mr Sandry was “possibly” injected with a poorly sterilised needle or that he was exposed to the hepatitis B or hepatitis C virus. Finally, there is no material to point to any basis for the opinion that Mr Sandry contracted hepatitis B or hepatitis C. These are essential elements of the hypothesis and the relevant factors in the SoP. The opinion, and therefore the hypothesis, is speculative and tenuous.
Based on our assessment of all of the material, we are not satisfied that the material points to the hypothesis as fitting the template of the relevant SoPs.
CONCLUSIONS
In our view Mrs Sandry’s claim must fail because we are not satisfied, on our assessment of all the material, that this material points to the relevant factors in SoP No 108 of 2007 or SoPs No 52 and 54 of 2008. We therefore affirm the decision under review.
I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member and Dr I Alexander, Member.
.........[sgd]...............................................................
Associate
Dated 9 February 2012
Date(s) of hearing 21 September 2011 Counsel for the Applicant John Dodd Advocate for the Respondent Timothy O'Reilly
0
9
0