Sylvia Sandry and Repatriation Commission

Case [2012] AATA 71

[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, Member
Date 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 82

Secondary 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 2008

REASONS FOR DECISION

Ms J L Redfern, Senior Member
Dr I Alexander, Member

9 February 2012

BACKGROUND

  1. 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.

  2. Mr Sandry died on 5 February 1969 at the age of 43 from cirrhosis of the liver.  This is not in dispute.

  3. 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).

  4. 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

  5. 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…

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AGLC
Sylvia Sandry and Repatriation Commission [2012] AATA 71
Case
[2012] AATA 71
Decision Date

CaseChat Overview and Summary

Sylvia Sandry lodged an application for a widow's pension under the Veterans' Entitlements Act 1986 (Cth), claiming that her husband's death from cirrhosis was war-caused. The Repatriation Commission rejected the application, and Mrs Sandry sought review of that decision by the Administrative Appeals Tribunal. The Tribunal was required to determine if the material before it pointed to a hypothesis connecting the veteran's death with his war service, and if so, whether that hypothesis was reasonable and consistent with the relevant Statement of Principles (SoP). Additionally, the Tribunal had to consider if it was satisfied beyond reasonable doubt that the death was not war-caused.

The Tribunal examined all available evidence and concluded that while Mrs Sandry had advanced a reasonable hypothesis that her husband's cirrhosis was caused by a hepatitis infection contracted during his service in Japan, the evidence was insufficient to satisfy the Tribunal beyond reasonable doubt that the cirrhosis was war-caused. The Tribunal noted that although Dr Talley's expert opinion suggested it was likely Mr Sandry contracted hepatitis during his service, there was no concrete evidence to prove this beyond reasonable doubt. The Tribunal also found that the hypothesis did not fit the template of the relevant SoPs, specifically SoP No 108 of 2007 and SoPs No 52 and 54 of 2008. Consequently, the Tribunal affirmed the original decision of the Repatriation Commission.

The Tribunal applied the four-step process as outlined in Deledio, determining that while the hypothesis was reasonable, the material did not point to the relevant factors in the SoPs. The Tribunal held that once the hypothesis was established as reasonable, the onus shifted to the Commission to prove beyond reasonable doubt that the death was not war-caused. The Tribunal found that the evidence did not support this burden of proof, but because the hypothesis did not align with the SoPs, the claim ultimately failed. The Tribunal thus affirmed the Commission's decision denying the widow's pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 monthsIICirrhosis yearsDiffuse 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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]).