The Estate of Esther Whitby and Repatriation Commission (Veterans' entitlements)

[2023] AATA 1235

The Estate of Esther Whitby and Repatriation Commission (Veterans' entitlements) [2023] AATA 1235 (17 May 2023)

Division:VETERANS’ APPEALS DIVISION

File Number(s):      2018/0798

Re:The Estate of Esther Whitby  

APPLICANT

Repatriation CommissionAnd  

RESPONDENT

DECISION

The decision under review is set aside and substituted with a decision that the Applicant is entitled to a Widow’s Pension under section 13 of the Veterans’ Entitlement Act 1986 (Cth).

Tribunal:Senior Member George

Date:17 May 2023

Place:Adelaide

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Senior Member George

CATCHWORDS

VETERANS – conditions – war caused – Statement of Principles – Deledio steps – Veterans Entitlement Act – Veterans Review Board – Royal Australian Air Force – decision under review is set aside.

LEGISLATION

Veterans Entitlement Act 1986 (Cth)

CASES

Bushell v Repatriation Commission (1992) 175 CLR 408

Howard v Repatriation Commission [1999] FCA 1030

Repatriation Commission v Deledio (1998) 83 FCR 82

SECONDARY MATERIAL

Statement of Principles concerning malignant neoplasm of the colon and rectum (Reasonable Hypothesis) No. 19 of 2022

REASONS FOR DECISION

Senior Member George

17 May 2023

1. Mr Eric Carl Whitby (“the Veteran”) had served with the Royal Australian Air Force (“RAAF”) in the Second World War.

2. The Veteran passed away in January 1997, aged 73 years, at Greenslopes Private Hospital. His death certificate gives his cause of death as “Overwhelming sepsis”, which he suffered for a duration of 48 hours. Mr Whitby also suffered from “Hepatic failure 2 Carcinoma of colon”, which he suffered for a duration of “2 weeks 2 diagnosis 2 weeks”.[1]

   [1] Exhibit A1/R1, T52, Death Certificate of Eric Carl Whitby, page 108.

3. Mr Whitby was married to Mrs Esther Whitby. They were married for just over 50 years, and she became a widow.

4. In June 2017, Mrs Whitby lodged a Claim for a Widow’s Pension. That same month, the Respondent decided that Mrs Whitby was not eligible for payment of a War Widow’s Pension on the grounds that the Veteran’s death was not service-related.

5. In July 2017, Mrs Whitby lodged a request for a review of the June 2017 decision with the Veterans’ Review Board (“the VRB”) who affirmed that decision in November 2017. This decision of the VRB is the decision under review (“the Reviewable Decision”).

6. In February 2018, Mrs Whitby lodged an Application for Review of the Reviewable Decision with the Tribunal. Mrs Whitby subsequently passed away and the Application has been continued by her Estate (“the Applicant”) in accordance with s 126(1) of the Veterans’ Entitlements Act 1986 (“the Act”).

7. The hearing proceed by audio-visual means on 21 March 2023.

8. The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

9. Section 13 of the Act provides that where the death of a veteran was war-caused or where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay compensation to the dependants of the veteran or to the veteran. Section 11 of the Act defines a “dependant” to include a widow.

10. Section 8 of the Act provides the following in relation to a war-caused death:

    (1)  Subject to this section and section 9A, 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.

11. Section 9 of the Act makes similar provisions in relation to any war-caused injury or disease.

12. Sections 6 and 7 of the Act define the terms “operational service” and “eligible war service”. It is uncontroversial that the Veteran’s wartime service falls within the definition of “operational service”.

13. Where an injury, disease or death is said to relate to operational service, sections 120 and 120A of the Act provide a standard of proof and method for determining whether there is a relationship between injury, disease or death and war-service.

14. Applying the standard of proof, subsections 120(1) and (3) of the Act provide that where the Veteran has rendered “operational service”, the injury, disease or death will be found to be service related if there is a “reasonable hypothesis” connecting the injury, disease or death to service. As subsections 120A(3) and (4) of the Act apply, a hypothesis connecting the Veteran’s death with service will be “reasonable” if there is a Statement of Principles (“SoP”) in force that “upholds the hypothesis”.

15. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Court described the four-stage approach to the application of sections 120 and 120A of the Act.

    Step 1: Raising a Hypothesis

16. In Step 1, a hypothesis is raised if the evidence before the Tribunal raises a causal connection between the claimed condition and the circumstances of a Veteran’s service.

17. There is no fact finding at this stage. However, any raised hypothesis must point to the evidence and not a mere possibility left open by an absence of evidence.

    Step 2: Identifying the Relevant Statement of Principles

18. Upon the raising of a hypothesis in Step 1, the Tribunal must then determine whether or not the condition diagnosed and for which the liability is being claimed is covered by a Repatriation Medical Authority (“RMA”) SoP instrument under s 196B(2) or (11) of the Act.

    Step 3: Applying the Statement of Principles

19. If the condition claimed is covered by a relevant SoP instrument in Step 2, the Tribunal must determine whether the hypothesis raised is reasonable. The hypothesis will be reasonable if it is consistent with the template to be found in the SoP. The hypothesis raised must meet at least one of the SoP factors and be related to a Veteran’s service as required under subsections 196B(2)(d) and (e) of the Act.

    Step 4: The Final Test

20. Having applied the SoP factor template, only at Step 4 does the Tribunal find facts from the evidence before it. The Tribunal must also apply the standard of proof in subsection 120(1) of the Act. The Tribunal must determine that the injury, disease, or death was war-caused, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

    THE REASONABLE HYPOTHESIS TEST

    Step 1: Raising a Hypothesis

21. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the death with the circumstances of the service of the late Veteran.

22. The Respondent submitted that the whole of the material points to a hypothesis that the Veteran’s death from hepatic failure and/or carcinoma of the colon was related to his alcohol consumption.[2] However, that the whole of the material does not point to a hypothesis that the Veteran’s alcohol consumption was related to his war service.[3]

    [2] Respondent’s Statement of Facts, Issues and Contentions, page 11 [74].

    [3] Respondent’s Statement of Facts, Issues and Contentions, page 11 [74].

23. The hypothesis put forward by the Applicant is that the Veteran died from carcinoma of the colon, caused by his alcohol consumption, which was related to the late Veteran’s war service:

    … Service, alcohol usage, colon carcinoma and death… he went to war; he began during the war to use alcohol which he had never used before, he came from a family which didn’t use alcohol; he suffered stress through being under attack and through seeing dead bodies during the Second World War; he developed colon carcinoma to which the alcohol usage contributed; and then he died.[4]

    [4] Applicant’s Statement of Facts, Issues and Contentions, page 5.

24. The evidence before the Tribunal supports a finding that the “kind of death” of the Veteran was hepatic failure and/or carcinoma of the colon.[5]

    [5] ExhibitA1/R1, T52, Death Certificate of Eric Carl Whitby, page 108.

25. The Applicant identified a number of factors in support of the hypothesis that the Veteran’s death was war-caused within the meaning of section 8 of the Act:

    (a)The Applicant’s evidence was that prior to his war service the Veteran was a “fit and healthy young man, with no known prior medical conditions as was demonstrated by his medical intake form.”[6]

    [6] Exhibit A2, Written Submission on Behalf of Applicant, page 3 [5].

    (b)The Veteran served in World War II in the RAAF between 21 April 1942 and 29 March 1945.

    (c)The Veteran came from a “humble background and did not drink alcohol”.[7] After the Veteran returned from war service “he always seemed to be agitated. … [the Veteran’s sister] was able to tell by his behaviour that he had been drinking on regular occasions”.[8]

    [7] Exhibit A2, Written Submission on Behalf of Applicant, page 3 [4].

    [8] ExhibitA1/R1, A2, Statement of Beth Ellen Williams, page 303 [8].

    (d)Between 1945 and 1947, the Veteran suffered from kidney stones. He spent various periods in hospital, including undergoing surgery for removal of the stones and right renal calculus.

    (e)On 23 June 1959, in an application for a claim for nerves and dysentery the Veteran wrote the following:

    As a result of war service my nerves have troubled me and makes even driving a car difficult. … My health has been far from good since discharge.[9]

    [9] ExhibitA1/R1, T31, Record of Evidence, pages 70-71.

    (f)In a report dated 13 July 1959, Dr Gillies stated that the Veteran was “very irritable and shaky”.[10] Dr Gillies made a provisional diagnosis of anxiety neurosis with associated bowel syndrome.

    (g)Dr Alsinger diagnosed the Veteran as suffering from an anxiety state with associated bowel symptoms on 21 September 1959:

    Always taking something to stop bowels. Always nervous and clearly upset since war. No treatment of nerves during war. … I have seen patient on a number of occasions since, and consider he has a chronic anxiety state, and that bowel symptoms are attributable to his nervous state.[11]

    (h)The Veteran passed away in January 1997 at the age of 73 years from hepatic failure and/or carcinoma of the colon.

    (i)On 2 October 2020, Dr Sethi stated the following about the Veteran in an expert file review report:

    Heavy alcohol consumption is a well described risk factor for developing bowel cancer. The recommended safe limit for a male patient is up to 4 standard drinks daily. Mr. Whitby was consuming up to 12 drinks daily which is well in excess of this. … In my opinion, Mr. Whitby’s heavy alcohol consumption did likely significantly contribute to him developing bowel cancer.[12]

    [10] ExhibitA1/R1, T33, Record of Medical Examination, pages 73-77.

    [11] ExhibitA1/R1, T35, Medical Report, page 79.

    [12] ExhibitA1/R1, A8, Expert File Review Report of Dr Sethi, pages 1366-1369.

26. It is not disputed that the Veteran undertook operational service. There is material evidence before the Tribunal that shows the Veteran’s operational service occurred during a difficult period for Australia in World War II. Mr Hubbard’s diary records contemporaneous events of the Veteran’s operational service.

27. There is evidence from the Applicant’s younger sister, Ms Beth Ellen Williams, that the Applicant did not drink alcohol prior to his service in World War II but did drink alcohol upon his return.

    Conclusion: Step 1

28. Considering all the evidence before it, the Tribunal is satisfied that the evidence raises a hypothesis that the death of the Veteran by carcinoma of the colon was war-caused.

    Step 2: Identifying the Relevant Statement of Principles

29. Having raised a hypothesis, the Tribunal must determine whether the condition diagnosed and for which the liability is being claimed is covered by a SoP under the Act.

30. It is uncontentious in this matter that the relevant SoP, given the kind of death of carcinoma of the colon and the late Veteran’s service, is the Statement of Principles concerning malignant neoplasm of the colon and rectum (Reasonable Hypothesis) No. 19 of 2022 (“the Relevant SoP”).

31. Section 9(11) of the Relevant SoP provides:

    9 Factors that must exist

    At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colon or rectum or death from malignant neoplasm of the colon or rectum with the circumstances of a person's relevant service:

    (11)consuming at least 250 kilograms of alcohol before the clinical onset of malignant neoplasm of the colon or rectum;

    Note: Alcohol consumption is calculated utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink.

32. Section 10(1) of the Relevant SoP provides:

    10 Relationship to service

    (1) The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.

    Conclusion: Step 2

33. The Relevant SoP is the Statement of Principles concerning malignant neoplasm of the colon and rectum (Reasonable Hypothesis) No. 19 of 2022.

    Step 3: Applying the Statement of Principles

34. The Tribunal must assess the reasonableness of the hypothesis raised by reference to the evidence before it. The hypothesis will be reasonable if it contains one or more of the factors consistent with the template found in the Relevant SoP. Every element of that factor of the relevant SoP must be consistent with the raised facts.[13]

    [13] Howard v Repatriation Commission [1999] FCA 1030.

35. The Applicant contends that the hypothesis advanced is a reasonable one. The evidence the Applicant relied upon to support its factual foundation has been referred to earlier in these reasons and it is not necessary to repeat them when undertaking this step.

36. The Respondent contends that the whole of the material before the Tribunal does not raise a reasonable hypothesis giving rise to a causal connection between the Veteran’s death and his war service.

37. The Veteran served in World War II and rendered operational service during wartime. This war was described in Mr Hubbard’s diary entries and in official histories. It is supported by the Veterans’ notes.[14] There is evidence that the Applicant heavily consumed alcohol and that his death may ultimately have been caused by the effects of this heavy alcohol consumption. The Veteran’s younger sister’s evidence is that the Veteran did not drink alcohol before the war but drank afterwards.

    [14] Statement of Peter Whitby, Page’s from Eric Carl Whitby’s Notebook, pages 17-18.

38. In consideration of the material before the Tribunal, it cannot be said that the hypothesis advanced by the Applicant is obviously fanciful, impossible, incredible, or not tenable, too remote, or too tenuous.[15] On the contrary, the Tribunal is satisfied that the hypothesis is reasonable.

    [15] Bushell v Repatriation Commission (1992) 175 CLR 408.

    Conclusion: Step 3

39. Based on the evidence before it, the Tribunal is satisfied that the hypothesis raised is reasonable.

    Step 4: The Final Test

40. A reasonable hypothesis having been made, the Tribunal must undertake a fact-finding task and consider whether it is satisfied beyond reasonable doubt that the kind of death of the late Veteran was not war-caused.

41. The Veteran served in the RAAF in the Second World War during the period between 21 April 1942 and 29 March 1945. His trade was as a Fitter Armourer. The Veteran served overseas from 13 August 1943 to 9 November 1944. His character upon discharge with the rank of Corporal was described as “V.G.”, being very good.[16]

    [16] Exhibit A1/R1, A7, Certificate of Service and Discharge, page 416.

42. At that time, RAAF conduct records of personnel made special mention of any drunkenness. In addition to listing any offences and punishments, they listed the number of cases of drunkenness and the date of the last instance of drunkenness. Cases of drunkenness were identified in red ink. The Veteran’s conduct record records no offences or punishments or instances of drunkenness.[17]

    [17] Exhibit A1/R1, A7, Conduct Records of Eric Carl Whitby, page 417.

43. At the time of his entry into the RAAF in April 1942, the Veteran’s service medical records documented that he did not suffer from any illnesses. Shortly after his enlistment in April 1942, the Veteran’s service medical records documented him being admitted to hospital with influenza on 21 May 1942. He was treated and discharged from hospital on 23 May 1942.

44. After training, the Veteran served in No. 8 Squadron in Papua New Guinea on Goodenough Island. Goodenough Island was recaptured from the Japanese in October 1942 and a RAAF base was quickly established. By the end of June 1943 there were 3,600 RAAF personnel on the island. These included those from No. 8 Squadron, which was a bomber squadron, and:

    The bomber squadrons based on the island made constant and heavy attacks on Rabaul as well as Japanese bases in the Solomons. There was surprisingly little retaliation, and in November [1943] it was considered safe to bring up nursing sisters for the M.R.S. [“Medical Receiving Station”].[18]

    [18] Exhibit A1/R1, A7, Milne Bay to Noemfoor RAN and RAAF medical viewpoint, from AVM official histories, 5519830, page 1176.

45. No. 5 Medical Receiving Station on Goodenough Island was kept busy with presentations of dysentery, skin conditions, and malaria.[19]

    [19] Exhibit A1/R1, A7, Milne Bay to Noemfoor RAN and RAAF medical viewpoint, from AVM official histories, 5519830, page 1176.

46. The evidence before the Tribunal does not point to alcohol abuse presenting as a medical problem on Goodenough Island. However, there is also no evidence to suggest that the RAAF in 1942 was as strict with its alcohol management as the Australian Defence Force is in the modern era; where today “Alcohol management in the ADF aims to minimise alcohol-related harm and deals with the supply, availability and use of alcohol, including authorised alcohol testing …”.[20] On the contrary, it is a matter of notoriety that the Barry Commission in 1945 inquired into the misuse of RAAF aircraft for illicit liquor trading.

    [20] Exhibit A1/R1, A7, MILPERSMAN Part 002, page 470.

47. Extracts of Mr Edward (Ted) Hubbard’s diary were provided as evidence before the Tribunal. Mr Hubbard and the Veteran were contemporaries in No. 8 Squadron. Mr Hubbard maintained the diary whilst performing his overseas service. The extracts describe various events occurring between 1943 and 1944 on Goodenough Island. They largely relate to experiences in that war zone.

1. No. 8 Squadron was placed in harm’s way. Mr Hubbard’s diary entries refer to the deaths of many servicemen. Some of the diary extracts read as follows:

   5 October 1943: four enemy aircraft, 15 bombs, three bombs landed on airstrip,

   11 October 1943: one of 22 Squadron Boston’s crashed whilst taking off, Pilot killed instantly Observer and Gunner got out, after it was burning for a whilst the petrol tank blew up, then the Bombs started exploding (8 100lb AS) which made us get under or behind a bank, fortunately no shrapnel came our way. Aircraft naturally blown to pieces, which you could pick up by hand.

   23 October 1943: a couple of days ago we lost another crew F/o Vincent 244. This was lost when our Squadron attacked the Cruiser of 8,000 tons.

   24 October 1943: Japanese Air raid – two bombs landed on the wharf,

   24 October 1943: Tonight 12 of our A/c raided Buka (or something. Slim Sommerville was very unlucky as he was flying around this Is. … He put his nose down to 300 ft (according to his altimetre) and found he was in the drink. Only Slim and Bob Lee had their safety belts on and were saved F/o Plumber. Davies and Hugh Pitman were killed.

   8 November 1943: Today is a very bad and sorry for us as we lost Sqd/Ld Owen Price.

   19 November 1943: A couple of days ago one chap was killed by a Python. Believed a few Japs are lurking around the place too. It is also believed one Jap was shot only yesterday which makes this place lively.

   5 December 1943: 38 Beaufort’s went out and bombed (main Jap fighter strip) at Rabaul. Included in our 16 were 6 torpedos in search of a convoy coming into Rabaul. Sqd Ldr Quinn DFC has not yet returned and so is posted missing in Air Operations, believed killed.[21]

   [21] Exhibit A2, 8 Squadron RAAF Diary of Ted Hubbard, pages 2-3.

2. When available, alcohol became an enjoyable part of life. Extracts of Mr Hubbard’s diary read as follows:

   18 December 194; Helping to pull out the Turret of 235, which is going to be the Squadron’s Beer Kite.

   24 December 1943 It is Xmas Eve today. Very pleased to see 235 come back from the mainland loaded with beer.

   On 21 March 1944 Jack got a bottle of whiskey and one of Gin which they got stuck into. It was a very enjoyable night on spirits.

   On 2 September 1944: “beer issue” today was one bottle but expecting three bottles tomorrow.[22]

   [22] Exhibit A2, 8 Squadron RAAF Diary of Ted Hubbard, pages 2-3.

3. There is no evidence before the Tribunal that the Veteran consumed alcohol prior to his service in the RAAF, however the evidence is clear that alcohol was available on Goodenough Island.

4. After his discharge from service in 1945, the Veteran engaged in civilian employment as a porter for Queensland Railways in Maryborough. He then engaged employment as a conductor for Queensland Railways at Roma Street in Brisbane.

5. On 4 January 1945, the Veteran was admitted to Greenslopes Hospital on account of haematuria (blood in his urine). The medical records documented his diagnosis of right renal calculus, observed as two small kidney stones that were too small to remove. He received treatment and was discharged on 18 January 1945.

6. The Veteran discharged from service in the RAAF in March 1945. In his Member Statement at Discharge, the Veteran claimed his kidney condition was connected to military service “through his tropical service (IN PNG)”. He also reported that he was not suffering from any persisting disability at the time of discharge.

7. After the Veteran’s discharge in 1945, he presented for medical treatment in December 1946 on account of blood in his urine and pain associated with kidney stones. Dr Hooper reported that the Veteran was having several attacks of right renal colic with haematuria since his discharge. A radiological investigation revealed there was calculus in the pelvis of the right kidney.

8. In September 1946, the Applicant and the Veteran were married.

9. On 31 December 1946, the Veteran was admitted to the Greenslopes Hospital. He underwent surgery to remove the kidney stones and was discharged on 18 January 1947.

10. On 3 February 1947, the Respondent issued a decision accepting the Veteran’s renal calculus condition. The Applicant was eligible for payment of a disability pension at 20 per cent of the General Rate for six months under what was then section 101(1)(a) of the Act.

11. On 14 February 1947, the Veteran was re-admitted to the Repatriation General Hospital at Brisbane for treatment of his right renal calculus. The medical records documented that the Veteran reported suffering daily attacks of pain post-surgery. The Veteran underwent surgery on 24 February 1947 to remove a calculus in the right pelvis are. He was discharged on 21 March 1947.

12. On 21 March 1947, the Veteran received a decision, issued by the Respondent, finding his right renal calculus to be related to his war service and that he was eligible for a disability pension at 20 per cent of the General Rate.

13. On 23 June 1959, the Veteran completed a claim for acceptance of disability, medical treatment and/or surgical aid in respect of a condition described as “nerves and dysentery”. To support the claim, the Veteran provided a “Record of Evidence” which stated the following:

    I make application for entitlement for nerves and dysentery. Since return from New Guinea I have been troubled with dysentery. This started on Goodenough Island and afterwards in New Guinea. Since discharge this has increased [so] that I have had in the last six months to visit Dr George twice. This does not include times, which, with patent medicine I have been able to ease myself. This causes me great discomfort and makes working difficult. As a result of war service my nerves have troubled me and makes even driving a car an effort. My previous complaint Kidneys still gives me a great deal of pain and then causes to upset my nerves. I have been restricted in employment and have not been able to follow promotion, having only recently to relinquish a position as a foreman on account of my nerves and general health. My health has been far from good since discharge.[23]

    [23] ExhibitA1/R1, T31, Record of Evidence, page 76.

14. The Tribunal notes that the Veteran’s complaint of having been troubled with dysentery on Goodenough Island is consistent with the official history’s account of the work of No. 5 Medical Receiving Station.

15. On 13 July 1959, Dr Gillies noted in a medical examination report that the Veteran was not a smoker and was a “light beer drinker”. Dr Gillies noted that the Veteran first attended Dr Hooper for dysentery in 1948 and later in 1956. It was also noted that the Veteran consulted Dr Donnelly in 1957 for dysentery and nerves and similarly upon Dr George in 1958 and 1959. Dr Gillies made the following comments and observations:

    Present complaints – nervous & dysentery condition.

    History – (1) 6 weeks since return from N.G. and it has been deteriorating since then. He is very irritable and shaky. His memory and concentration are with fair. Present worry unduly, but always feels tense. He has consulted Dr George of Chermside. When he gets upset his stomach churns and he has diarrhoea. No blood has been seen in his motion. (2) he has bouts of diarrhoea which seem to be connected with (1) and this may last two days. He has several motions in an hour and the condition is weakening. So far he has had no investigation.[24]

    [24] ExhibitA1/R1, T33, Report of Medical Examination, pages 79-83.

16. Dr Gillies made a provisional diagnosis consisting of:

    (1)   Anxiety neurosis with functional diarrhoea and (2) Ba enema.[25]

    [25] ExhibitA1/R1, T33, Report of Medical Examination, pages 79-83.

17. Dr Gillies advised for the following investigations:

    (1)   CNA Dr George, Chermside, still attending for nerves, and psychiatrist; (2) Ba med. …[26]

    [26] ExhibitA1/R1, T33, Report of Medical Examination, pages 79-83.

18. On 13 July 1959, there was a radiological request for an x-ray of the Veteran’s abdomen.  The clinical notes indicate that the Veteran was suffering from abdominal pain, occasional vomiting, and bouts of diarrhoea.

19. On 21 September 1959, Dr Alsinger diagnosed the Veteran as suffering from an anxiety state with associated bowel symptoms. His medical report stated the following:

    On 25 May 1959: patient first consulted me in relation to gastro-enteritis and nerves. Following notes were made:

    Esasto since last night 7-8 times. No vomiting or nausea. No feverishness. Abdominal pains. Has had episodes of gastro on and off since in Islands – severe attack then. Worse when examined. Outpatient treatment in islands. Always taking something to stop bowls. Always nervous and clearly upset since war. No treatment of nerves during war. Discharged 1945 – was in Greenslopes 1945 with kidney stones. 1947 – nephrolithiasis …

    OP – abds – hyperperistalsis. No tenderness of guarding.

    R_{1 –} chleromyatin 250 91d ….

    I have seen patient on number of occasions since, and consider has a chronic anxiety state, and that bowel symptoms are attributable to his nervous state.

    Diagnosis: anxiety state and abdominal reference.[27]

    [27] ExhibitA1/R1, T35, Medical Report, page 85.

20. In October 1959, the Veteran attended upon psychiatrist Dr Charles. Dr Charles provided a report dated 16 October 1959 and diagnosed the Veteran as suffering from an anxiety state. He made the following comments and observations:

    This ex/sm suffering from anxiety state – his psychosomatic symptoms being expressed others’ G-I tract. He is ---- mild tremor, and exaggerated tendon jerks. He is tense and tentative and flushed. His wife manages finances. Ex/m seems a steady drinker. His symptoms are – “regularly upset, can’t concentrate, diarrhoea, irritability.” He is dissatisfied in his job, blames his health for his arrested promotion – he “could not take responsibility”[28]

    [28] ExhibitA1/R1, T37, Treatment and Report Form, page 88.

21. In response to questions posed by the Respondent, Dr George noted the following in a medical practitioner’s report dated 20 October 1959:

    Nature – Anxiety neurosis with stomach and bowel reference. 10%

    Nature and extent of any doubt entertained – functional and positive. Recommend reflection.

    Has the incapacity resulted from an occurrence that happened during his war service? – No – W.W

    Did the incapacity arise out of or is it attributable to his war service? – No – W.W 2

    Has the incapacity been contributed to in any material degree, or has it been aggravated, by the conditions of his war service? – No – W.W 2

    Have the disabilities found been present for six months prior to the date of application – yes.

    What is the assessment in respect of that period? 10%[29]

    [29] ExhibitA1/R1, T38, Record of a Medical Practitioner Upon the Incapacity of the Above Member, pages 89-92.

22. In a decision dated 17 November 1959, the Respondent rejected the Veteran’s claim for “anxiety neurosis with stomach and bowel reference” finding the condition to not be related to his war service.

23. On 19 January 1960, the Veteran lodged documentation with the Respondent requesting a review of the decision dated 17 November 1959. He contended that “this complaint is a result of war service and I have been unjustly treated by the Repatriation department”.

24. Consequently, the Respondent sought reports from his treating practitioners, namely Dr Hooper and Dr Donnelly.

25. On 12 April 1960, a reviewable decision was issued affirming the decision of 17 November 1959.

26. In a statement provided to the Tribunal, the Veteran’s son Mr Peter Whitby said the following about the Veteran:

    I am aware that my father suffered from kidney stones during his time in the Royal Australian Air Force to the extent that he was eventually discharged. He blamed the water, or what was put in it, for his kidney stones because he could not drink the water.

    … I recall that he would often joke about being given day passes from the hospital to go to the pub and that he was encouraged to drink alcohol as part of his treatment and that he would have to drink to “flush the kidneys”.

    … Although my father did not speak a lot about his war experiences and got on with life after he returned from the war and worked hard for our family, I have no doubt that he drank to keep his kidneys flushed and to forget whatever he had experienced.[30]

    [30] Exhibit A1/R1, A4, Statement of Peter Whitby, pages 306-309.

27. The Veteran’s son, Mr Eric Whitby, provided a statement to the Tribunal. He described similar experiences with the late Veteran’s kidney stones and alcohol consumption:

    I am aware from conversations with my father that he always stayed away from Doctors unless absolutely necessary due to his experiences with kidney stones while serving in the Royal Australian Air Force.

    I can specifically recall that my father would say that he drank as much as he did to keep the kidney stones away and that during his time in the service his doctors had told him to “drink plenty of fluids including beer” and he did not want to have any chance of ending up with kidney stones and the pain again.

    … My father took medication for blood pressure and gout and did not see a doctor unless he needed a new prescription. As far as I can recall he did not take any sleeping tablets or anti-depressant drugs. I recall on one occasion I asked my father how to sleep during the day and he replied “have a couple of beers at lunch time and sleep in the afternoon. Don’t take sleeping tablets”.[31]

    [31] Exhibit A1/R1, A4, Statement of Eric Kenneth Whitby, pages 325-327.

28. In an application to the Department of Veterans’ Affairs dated 13 June 2017, the late Mrs Whitby claimed a War Widow’s Pension. When asked “How do you believe the veteran’s service caused or contributed to his or her death?”, Mrs Whitby stated:

    Eric was a ‘moderate drinker’ … while serving and suffered from severe bouts of stomach reflux and diarrhoea. After discharge he self-medicated using alcohol to excess to treat his conditions – identified as anxiety neurosis with stomach and bowel reference. …[32]

    [32] Applicant’s Statement of Facts, Issues and Contentions, page 2 [12].

29. In support of her claim, Mrs Whitby wrote the following in relation to an alcohol questionnaire about the late Veteran’s alcohol consumption:

    10-12 standard drinks daily at home normally consumption 4 large bottles of beer plus a bottle of rum when working away from home (railway worker).

    … Eric – joined the forces at age 18 (under drinking age) and started drinking due to peer pressure and stress and the need to be socially accepted within the forces. He commenced drinking at a young age (turning 21 in New Guinea). He drank moderately at Sandgate prior to discharge around 10 standard drinks a day or what was available on the day. He was encouraged by senior staff to join them drinking by signing his pass out of barracks.

    After discharge he self medicated with alcohol to relieve his symptoms of stress and anxiety as well as ongoing pain from kidneys. (Systems similar to PTSD today).

    He drank right up until his death.[33]

    [33] Exhibit A1/R1, T68, Alcohol Questionnaire, pages 148-151.

30. Mr Peter Whitby later clarified that:

    T10 Alcohol Questionnaire stated Eric drank a bottle of rum when working away, this is an overstatement, he was a regular rum drinker. Only first thing in the morning with a pot of tea before breakfast but not a whole bottle. (1 or 2 “good” nips) He did drink the stated amount of beer.[34]

    [34] Exhibit A1/R1, T78, Email of Peter Whitby, pages 199-200.

31. Materially, Ms Beth Williams, the Veteran’s younger sister, provided a statement to the Tribunal. By this stage, she was aged 88 years old. She stated the following about the Veteran and his war service:

    I was approximately 12 years old when Eric enlisted in the Royal Australian Air Force and left for service.

    At this time I had not seen Eric consume alcohol and I assume that he had not as he was only 19 years of age at the time.[35]

    [Emphasis added]

    [35] Exhibit A1/R1, A2, Statement of Beth Ellen Williams, pages 303-304.

32. Ms Williams described her brother, the Veteran, after he returned from the war:

    When Eric returned from service I was approximately 15 years old. Eric then resided in the family home until he married Esther Whitby. He then moved to the other side of town. As far as I can recall no one mentioned anything about the war or Eric’s experiences and it was just something that was not spoken about.

    Eric was not the same person when he returned from service. Before Eric enlisted he was a very active and jovial man but when he returned he always seemed to be agitated.

    During this period I do not recall witnessing Eric drinking but I was able to tell by his behaviour that he had been drinking on regular occasions.

    I believe that Eric was drinking to appease himself because of what he had experienced. As far as I am aware Eric spent a period of time in Papua New Guinea and would have been required to clean out aeroplanes that had been shot at, removing dead bodies from the back of the aeroplane.

    I believe that Eric would have seen this time and time and time again during his service and continued to drink alcohol after his service ended to forget what he had seen.[36]

    [Emphasis added]

    [36] Exhibit A1/R1, A2, Statement of Beth Ellen Williams, pages 303-304.

33. Although the Veteran did not directly confide in Ms Williams any trauma from his war service, the beliefs that she describes are consistent with the other evidence before the Tribunal. Indeed, it may be that the Veteran did not confide in anyone about his wartime experiences. Ms Williams wrote:

    As far as I can recall, the war and Eric’s experiences were just not spoken about and everyone just wanted to forget what had happened.

    I am aware that Eric continued to drink alcohol excessively until he passed away and have no doubt that Eric drank to try to forget whatever he witnessed during his time in the Royal Australian Air Force.[37]

    [Emphasis added]

    [37] Exhibit A1/R1, A2, Statement of Beth Ellen Williams, pages 303-304.

34. The Veteran and Ms Williams both resided in the family home immediately before and immediately after the Veteran’s wartime service. Ms Williams did not believe that the Veteran had consumed alcohol prior to joining the RAAF. Upon his return to the family home three years later, after rendering operational service, Ms Williams’ evidence was that the Veteran was drinking alcohol regularly.

35. A material aspect of Ms Williams’ evidence is that she knew her brother, the Veteran, both before the war and after it. Of all witnesses, her evidence is best placed to inform the Tribunal as to the commencement of the Veteran’s alcohol consumption.

36. In the absence of any other sufficient ground, the Tribunal is satisfied principally from Ms Williams’ evidence that it was the rendering of the Veteran’s operational service that resulted in his excessive alcohol consumption. In making this finding, the Tribunal notes that it is consistent with Mr Hubbard’s diaries that alcohol was both available on Goodenough Island and that it was a part of service life there. Also, this finding is not contradicted by any other evidence before the Tribunal that would indicate that the Veteran consumed alcohol prior to his operational service.

37. Noting the factors that must exist in section 9(11) of the Relevant SoP, the question arises as to whether the Veteran consumed at least 250 kilograms of alcohol before the clinical onset of malignant neoplasm of the colon where alcohol consumption is calculated utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink.

38. The Respondent accepts that the Veteran satisfies the alcohol quantity requirement of clause 9(11) of the Relevant SoP.[38]

    [38] Respondent’s Statement of Facts, Issues and Contentions, page 12 [81].

39. The Tribunal has considered the evidence of Dr Gillies that the Applicant was a “light beer drinker”. The difficulty for the Tribunal is to interpret what is meant by this phrase. In the first instance, the Tribunal is satisfied that it means to lightly drink what is now called full-strength beer as compared to drinking a product that is today referred to as light beer. However, on the evidence before it, it is impossible for the Tribunal in 2023 to objectively measure what it meant to drink beer lightly in 1959. To this end, this evidence of Dr Gillies is of little assistance and the Tribunal affords it little weight.

1. Dr Charles’ evidence in 1959 was that the Veteran seemed to be a “steady drinker”. The meaning of this phrase remains clear in 2023.

2. The Tribunal has clear evidence from the Applicant and Mr Peter Whitby that the Veteran drank at least four large bottles of beer a day over the course of decades. To some extent, he also drank rum. Precise mathematical calculations are impossible to make as to the grams of alcohol in each bottle of beer and the number of bottles consumed over decades. However, the Tribunal is satisfied that the Veteran steadily consumed well in excess of 250 kilograms of alcohol from at least 1945 until the clinical onset of his malignant neoplasm of the colon and his consequent passing.

   Conclusion: Step 4

3. Having regard to the whole of the evidence before it and for the reasons given above, the Tribunal determines that the Veteran’s death was war-caused as it is not satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

4. Accordingly, the Tribunal must set aside the decision under review and substitute it with a decision that the Applicant is eligible for a Widow’s Pension under section 13 of the Act.

   DECISION

5. The decision under review is set aside and substituted with a decision that the Applicant is entitled to a Widow’s Pension under section 13 of the Veterans’ Entitlement Act 1986 (Cth).

I certify that the preceding 91 paragraphs are a true copy of the reasons for the decision herein of Senior Member George

.............................[sgnd]..................................

Date of Decision:	17 May 2023
Date of Hearing:	21 March 2023
Solicitor for the Applicant:	Mr Gordon Harris Keyworth Harris & Lowe Family Lawyers
Solicitor for the Respondent:	Mr Brendan O’Brien Moray & Agnew Lawyers

ANNEXURE A – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	DATE TENDERED
A1/R1	Joint Hearing Bundle	R	Various	13/03/2023	21/03/2023
A2	Written Submission on Behalf of the Applicant	A	21/03/2023	21/03/2023	21/03/2023