The Estate of Esther Whitby and Repatriation Commission (Veterans' entitlements)
[2021] AATA 4217
•17 November 2021
The Estate of Esther Whitby and Repatriation Commission (Veterans' entitlements) [2021] AATA 4217 (17 November 2021)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/0798
Re:THE ESTATE OF ESTHER WHITBY
APPLICANT
AndREPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:17 November 2021
Place:Brisbane
The decision under review is affirmed.
................................[SGD]........................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – widow’s pension – whether the death of the veteran was service caused – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408, [1992] HCA 47
Forrester v Repatriation Commission [2013] FCA 898
Re Evelyn Nellie East v Repatriation Commission (1987) 16 FCR 517; [1987] FCA 242
Repatriation Commission v Deledio (1998) 83 FCR 82, [1998] FCA 391
Repatriation Commission v Jean Margaret Stares (1996) 66 FCR 594; [1996] FCA 1510
Repatriation Commission v Michael George Bey (1997) 79 FCR 364; [1997] FCA 1347
STATEMENT OF PRINCIPLES
Statement of Principles concerning malignant neoplasm of the colorectum No. 37 of 2013
Statement of Principles concerning alcohol use disorder (reasonable hypothesis) No. 48 of 2017
REASONS FOR DECISION
Senior Member Katter
17 November 2021
1.This is an application to review the decision of the Respondent, refusing a claim for a pension by the Applicant[1].
[1] Exhibit 1, T69, pages 146-150.
BACKGROUND
2.The deceased Veteran, Mr Eric Carl Whitby, served in the Royal Australian Air Force from 1942 to 1945[2]. From 21 April 1942 to 29 March 1945 Mr Whitby served during World War II[3].
[2] Applicant’s Statement of Facts, Issues and Contentions dated 26 July 2019, paragraph 2.1
[3] Exhibit 1, T69, page 148.
3.Mrs Esther Whitby married Mr Whitby on 5 September 1946[4].
[4] Exhibit 1, T71, page 154.
4.Mr Whitby passed-away on 13 January 1997[5]. The cause of death identified on Mr Whitby’s Queensland Death Certificate was[6]: “1 (a) Overwhelming sepsis … (b) Hepatic failure 2 Carcinoma of colon”.
[5] Exhibit 1, T71, page 102.
[6] Exhibit 1, T71, page 102.
5.By an application signed on 13 June 2017[7], the Applicant claimed a war widow’s pension. In that application, in response to the question, “How do you believe the veteran’s service caused or contributed to his or her death?”, the Applicant stated[8]:
[7] Exhibit 1, T67, pages 134-141.
[8] Exhibit 1, T67, page 137.
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. …
6.By a decision dated 28 June 2017 the Respondent decided that “the death of Mr Eric C Whitby is not related to service, and that a war widows’ pension is therefore not payable”[9].
[9] Exhibit 1, T69, page 146.
7.By a decision dated 27 November 2017 the Veterans’ Review Board affirmed the Respondent’s decision[10] that the death was not service related[11].
[10] Exhibit 1, T69, page 149.
[11] Exhibit 1, T80, page 210.
8.On 16 February 2018, an application seeking a review of the Veterans’ Review Board’s decision dated 27 November 2017 was lodged with the Tribunal[12]. Under the heading “reasons for the application” in that application, the Applicant stated[13]: “The decision is incorrect. Significant matters were not given adequate consideration and a review of the decision is sought”.
9.The application filed on 16 February 2018 went to hearing on 11 September 2019[14]. The Applicant submitted at that hearing on 11 September 2019 that the matter should be adjourned for the provision of further evidence by the Applicant[15].
10.The practitioners who appeared, respectively for the Applicant and the Respondent at the hearing on 11 September 2019 did not appear when the matter returned for hearing in 2021, with different practitioners appearing.
11.The matter returned for further hearing on 26 March 2021[16]. At the conclusion of the hearing on 26 March 2021 it was directed that further written submissions be provided by the parties and directions were made in that regard[17].
12.On 20 April 2021 the Respondent filed written submissions[18]. On 21 April 2021 the Applicant filed written submissions in reply to those submissions filed by the Respondent on 20 April 2021[19].
[12] Exhibit 1, T2, pages 3-4.
[13] Exhibit 1, T2, page 3.
[14] Transcript dated 11 September 2019, P-1 to P-27.
[15] Transcript dated 11 September 2019, P-24.
[16] Transcript dated 26 March 2021, P-28 to P-68.
[17] Transcript dated 26 March 2021, P-67 to P-68.
[18] Respondent’s Submission dated 20 April 2021, pages 1 to 3.
[19] Applicant’s Reply to Respondent’s Further Submission dated 21 April 2021, pages 1 to 3.
On 13 July 2021 a directions hearing was listed for the purpose of asking the parties to provide further specific submissions as to particular questions, where the submissions made by the parties at the 2019 and 2021 hearing days were different. At the commencement of the directions hearing on 13 July 2021 the parties communicated that the Applicant had passed away in the preceding days.
14.On 16 August 2021 there was a directions hearing where questions were posed to the parties and where, further to submissions by the parties, directions were made as to the filing of submissions and a listing for further oral submissions. On 22 August 2021, the Applicant filed written submissions[20]. On 30 August 2021, the Respondent filed written submissions[21]. Oral submissions were made by the parties on 6 September 2021.
[20] Applicant’s Answer to Questions Raised by the Tribunal on 16 August 2021, pages 1 to 5.
[21] Respondent’s Further Submission dated 30 August 2021, pages 1 to 4.
15.The parties both submitted that the Tribunal continued to have the statutory basis to review the decision, further to the passing of the Applicant on 4 June 2021. The Applicant referred specifically to sub-s 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which states:
Where this Act or any other enactment … provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons … whose interests are affected by the decision.
16.The Applicant further submitted[22]:
[22] Applicant’s Answer to Questions Raised by the Tribunal on 16 August 2021, page 5.
The … death of Mrs Whitby does not make the matter before the Tribunal into a new application. The statute prescribes that the application can be taken over by another person; it does not prescribe that some other application based on the same facts can be lodged, or that another person must remake the application or make a new and different application. …
17.The Respondent referred specifically to sub-s 126(1) of the Veteran’s Entitlements Act 1986 (Cth) (“the Act”), which states:
On the death of a claimant, the claim does not lapse in respect of any period before the death of the claimant, but the legal personal representative of the claimant, or a person approved by the Commission, may take such action in respect of the claim as the claimant could have taken if the claimant had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the claimant.
18.The Respondent further submitted that: “The Act therefore provides for the proceedings before the Tribunal to continue with Mr [Peter] Whitby, as legal personal representative, substituted as the [A]pplicant”[23].
[23] Respondent’s Further Submission dated 30 August 2021, page 1, paragraphs 6 and 7.
19.Where the claim does not lapse in respect of any period before the death of the Applicant, where there is no contention by the parties otherwise, there continues to be a statutory basis to review the decision.
ISSUE
20.The issue is whether the death of the Veteran was caused by service, entitling the Applicant to a pension by way of compensation in accordance with the Act.
EVIDENCE
21.As referred to above, Mr Whitby served in the Royal Australian Air Force, during World War II, from 21 April 1942 to 29 March 1945[24].
[24] Respondent’s Statement of Facts, Issues and Contentions dated 26 August 2019, paragraph 9.
22.The Applicant’s evidence was that prior to his military service Mr Whitby was “happy go lucky, he went to work, he came home and enjoyed life as a teenager”[25]. Mr Whitby’s brother, Mr Brian Whitby, recalled that “there was never alcohol in the house”[26] (before the War) and that Mr Whitby did not drink before the War[27].
[25] Transcript dated 26 March 2021, P-40, lines 3-4.
[26] Transcript dated 26 March 2021, P-40, line 15.
[27] Transcript dated 26 March 2021, P-41, line 44.
23.There was oral evidence that Mr Whitby suffered from dysentery “given the conditions that the veteran would have been subjected to as a result of service in Papua New Guinea for the period of 15 months and the year in which he was serving there… ”[28]. It was stated that Mr Whitby was “suffering with … no clean water, [in that Mr Whitby was] working in mosquito-infested areas near swamps”[29]. It was stated that Mr Whitby and others “would not have had any effective medical treatment [as] to those conditions at that point in time”[30].
[28] Transcript dated 11 September 2019, P-9, lines 23-25.
[29] Transcript dated 11 September 2019, P-9, lines 30-31.
[30] Transcript dated 11 September 2019, P-9, lines 38-40.
24.The Applicant was questioned about Mr Whitby’s alcohol consumption during service and whether Mr Whitby’s age (under 21 years old at the time) was relevant[31]. The Applicant stated that those serving in World War II “were all treated as adults, whether you were over or above 21”[32]. The Applicant further referred to the diary entry of an Australian stationed in Papua New Guinea around the same time-period, as evidence of beer being issued as part of rations[33].
[31] Transcript dated 26 March 2021, P-50, lines 20-21.
[32] Transcript dated 26 March 2021, P-50, lines 20-21.
[33] Transcript dated 26 March 2021, P-49, lines 2-3.
25.The Applicant stated that after Mr Whitby returned from Papua New Guinea “he was very moody, and you know, pretty down in the dumps”[34]. Mr Whitby “would come home intoxicated”[35], never commemorated ANZAC day[36] and “continued to drink alcohol excessively until he passed away”[37]. Further, Mr Whitby’s son, Mr Eric Whitby, stated that the Applicant and Mr Whitby would argue about his “drinking”, “on occasion”[38].
[34] Transcript dated 26 March 2021, P-40, lines 8-9.
[35] Transcript dated 26 March 2021, P-41, line 38.
[36] Exhibit 6, Statement of Eric Kenneth Whitby dated 26 September 2018, paragraph 17.
[37] Exhibit 7, Statement of Beth Ellen Williams dated 11 September 2018, paragraph 15 .
[38] Exhibit 6, Statement of Eric Kenneth Whitby dated 26 September 2018, paragraph 17.
26.On 4 January 1945 Mr Whitby was diagnosed with right renal calculus, which was observed as two small kidney stones[39]. Radiological investigations undertaken on 13 December 1946 identified that there was a calculus in the pelvis of Mr Whitby’s right kidney[40]. On 31 December 1946, Mr Whitby underwent surgery to remove kidney “stones”[41]. On 24 February 1947 Mr Whitby underwent surgery to remove a calculus in the right pelvis area[42].
[39] Respondent’s Statement of Facts, Issues and Contentions dated 26 August 2019, paragraph 13.
[40] Respondent’s Statement of Facts, Issues and Contentions dated 26 August 2019, paragraph 17.
[41] Respondent’s Statement of Facts, Issues and Contentions dated 26 August 2019, paragraph 17.
[42] Respondent’s Statement of Facts, Issues and Contentions dated 26 August 2019, paragraph 19.
27.Clinical notes from an x-ray of Mr Whitby’s abdomen from 13 July 1959 state that he suffered from abdominal pain, occasional vomiting and bouts of diarrhoea[43].
[43] Respondent’s Statement of Facts, Issues and Contentions dated 26 August 2019, paragraph 25.
28.The Applicant stated that Mr Whitby’s dysentery was ‘caused by malaria’ and that “the malaria was in fact brought back with him when he came back to Australia and remained undiagnosed right up until the time of his death, due to the fact he was never ever treated for malaria”[44].
[44] Transcript dated 11 September 2019, P-10, lines 3-5.
29.On 2 October 2020, Dr Siddarth Sethi, gastroenterologist and hepatologist, provided a report as to Mr Whitby[45]. The opinion in the report by Dr Sethi is that there is no evidence in the medical and scientific literature supporting the view that dysentery predisposes a patient to bowel cancer[46]:
[45] Exhibit 12.
[46] Exhibit 12, page 3.
OPINION
Mr Whitby was posted to New Guinea during his wartime service between 1943 to 1944. He likely acquired a gastrointestinal infection during his posting. In my opinion, Mr Whitby likely developed post infectious irritable bowel syndrome with intermittent diarrhoea.
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. This is well described in the medical and scientific literature. If Mr Whitby had started drinking heavily due to his military service as a result of being encouraged to drink while serving or due to developing post traumatic stress disorder later, this would have very likely significantly contributed to him developing bowel cancer later. In my opinion, Mr Whitby’s heavy alcohol consumption did likely significantly contribute to him developing bowel cancer.
Dysentery does not predispose a patient to bowel cancer. There is no evidence supporting this in the medical and scientific literature.
IN ANSWER TO YOUR SPECIFIC QUESTIONS
1) Dysentery, the symptoms of which persist for at least 14 years does not predispose a patient to bowel cancer.
30.Dr Sethi in that report of 2 October 2020 further stated that Mr Whitby’s heavy alcohol consumption contributed to the development of bowel cancer[47]. Further, Dr Sethi stated[48]:
[Mr] Whitby’s wife reports that he was diagnosed with an anxiety state in 1957 and began self-medicating with alcohol.
31.The Applicant also referred to a report by a Dr George, which stated that Mr Whitby’s “Anxiety neurosis with bowel and stomach reference” did not arise out of and was not attributable to Mr Whitby’s war service[49].
32.In a medical examination report dated 13 July 1959, Dr Gillies noted that Mr Whitby was “very irritable and shaky”[50] and made the provisional diagnosis of “… anxiety neurosis with functional diarrhoea”[51]. In a further medical report dated 21 September 1959, Dr Alsinger diagnosed Mr Whitby as “suffering from an anxiety state with associated bowel syndrome”[52]. Dr Alsinger’s report stated thar Mr Whitby was “always nervous and clearly upset since the War”[53].
CONSIDERATION
33.In Forrester v Repatriation Commission [2013] FCA 898 at [23]-[32] per Mortimer J, it was relevantly stated:
[47] Exhibit 12, page 3.
[48] Exhibit 12, page 3.
[49]Applicant’s Amended Statement of Facts, Issues and Contentions dated November 2020, Exhibit 13, page 5, paragraph 14.
[50] Exhibit 1, T33, page 76.
[51] Exhibit 1, T33, page 76.
[52] Respondent’s Statement of Facts, Issues and Contentions dated 26 August 2019, paragraph 26.
[53] Exhibit 1, T35, page 79.
“Identifying a Hypothesis
23.To engage the process in ss 120(1) and 120A, a particular hypothesis must be identified. The language of ‘hypothesis’ is significant: it is a textual indication of at least two matters. First, the scheme’s recognition of the difficulties associated with establishing an injury, disease or death as war-caused, sometimes long after the relevant service; second, the beneficial threshold set by ss 120 and 120A. A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: Repatriation Commission v Stares (1996) 66 FCR 594 at 601 per Black CJ, Ryan and Einfeld JJ.
24.In the present case, the ‘ultimate fact’ is Mr Forrester’s death from an aortic aneurysm. The supposition or conjectural explanation for that death is (reducing the hypothesis as set out at [61] of the Tribunal’s reasons to its essential components) that Mr Forrester commenced drinking heavily during his operational service in Vietnam partly or wholly as a result of five identified ‘stressors’ he encountered during his service, each of which involved tasks he was said to have been charged with or events in which he was said to have been involved while in Vietnam. This heavy drinking is said to have continued on his return from Vietnam and to have caused him to develop hypertension, which in turn caused the aortic aneurysm.
The Deledio Steps
25. A Full Court of this Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97–98 set out the manner in which s 120(1), read together with the provisions that qualify it, is to be applied. The Court identified four steps:
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 a 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 a 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.
26. In Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 at [31], Allsop J pointed out that the second sentence in the second paragraph is not correct. Otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.
27.It is especially important to understand the difference between the first and fourth steps in Deledio, although the line between them is far from bright: see Collins [2007] FCAFC 111; 163 FCR 35 at [49] per Allsop J.
28. At the first Deledio step, the authorities are clear that the Tribunal is not to engage in ‘fact finding’: Bull v Repatriation Commission (2001) 66 ALD 271 [2001] FCA 1832; Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82. The fourth Deledio step is the point at which there needs to be fact finding by the decision-maker, and will occur only once the Tribunal is satisfied a reasonable hypothesis has been raised. Recalling the beneficial nature of the process established by s 120, even that task remains a confined exercise. In Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 at 571, Mason CJ, Gaudron and McHugh JJ described the fact-finding exercise in the following terms:
The claim will succeed unless (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
29. Nevertheless, the first step in Deledio, requiring the formation by the Tribunal of a view or opinion about the material before it, and a characterisation of that material as “pointing to” or “supporting” the hypothesis advanced, involves some level of factual assessment.
30. Whether material “points to” or ‘supports’ a hypothesis is, of its nature, a matter which can be determined by inference or assumption: Elliott v Repatriation Commission (2002) 73 ALD 377; [2002] FCA 26 at [5]. In Stares (a pre-Deledio case), the Full Court held that assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach. Referring to the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes [1993] HCA 51; 177 CLR 564 at 569, the Full Court stated (66 FCR 594 at 601):
By there saying that “the material must point to some fact or facts” their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion.
31. Importantly for the resolution of the issues in this case, the use of the verb ‘raise’ in s 120(3), and the subsequent approach of asking whether material ‘points to’ or ‘supports’ a hypothesis, has been held to require more than that the material before the decision-maker leaves the propounded hypothesis open as a possibility. A possibility of connection between war service and death, injury or disease is not enough: Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364 at 372, 375.
32. The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it: see Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 at [53]. The manner in which these two aspects of reasonableness operate assists in resolving the third argument raised by the applicant. [underlining added]”
34.The Applicant submitted the following hypothesis[54]: “ … that [Mr] Whitby’s death from colon cancer was connected with his war service, in that his heavy drinking likely contributed to his death from bowel cancer, and that heavy drinking was acquired behaviour arising from the norms of the service at the time and/or his way of dealing with the stress arising from his wartime experience”.
[54]Applicant’s Amended Statement of Facts, Issues and Contentions dated November 2020; Exhibit 13, pages 3 and 4, paragraph 6.
35.The Applicant in 2019 had submitted that Mr Whitby’s suffering of dysentery and diarrhoea “over a long period”[55] lead to carcinoma of the colon[56]. That is that the Applicant had provided, previously, a hypothesis that the war service of Mr Whitby, led to mental stress, which led to drinking, causing bowel cancer, causing death. That alternative previous hypothesis was not submitted by the Applicant in 2021.
[55] Transcript dated 11 September 2019, P-13, lines 17.
[56] Transcript dated 11 September 2019, P-10, line 34.
36.In closing submissions the Applicant submitted the hypothesis of “… service, alcohol usage, colon carcinoma and death”[57]. The Applicant particularised the hypothesis further, stating[58]:
[57] Transcript 6 September 2021, P-80, lines 8-10.
[58] Transcript 6 September 2021, P-80, lines 35-40.
“ … 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.”
37.In relation to the hypothesis, the Respondent submitted that the Respondent “ … accepts that a hypothesis exists connecting the veteran’s death from colon carcinoma to alcohol consumption”[59].
[59] Respondent’s Further Submissions dated 30 August 2021, page 3, paragraph 19.
38.As referred to above, the late Veteran died from[60]: “1 (a) Overwhelming sepsis … (b) Hepatic failure 2 Carcinoma of colon”. The Applicant’s hypothesis only relates to the last of those named causes of death: service, mental state, alcohol, carcinoma of colon. The Respondent ‘accepted’ that Mr Whitby died from “hepatic failure and carcinoma of colon”[61] and did not contend that the multiple causes of death created any issue, having regard to the hypothesis.
[60] Exhibit 1, T71, page 102.
48Respondent’s Amended Statement of Facts, Issues and Contentions dated 25 March 2021, Exhibit 14, paragraph 12.
39.In accordance with the first Deledio step referred to above, all the material which is before the Tribunal has been considered and it is determined that that material points to the hypothesis connecting the death with the circumstances of the particular service of Mr Whitby. As stated in Deledio: “ … no question of fact finding arises at this stage”. Mr Whitby served operationally in World War II for nearly 3 years. The Applicant’s evidence was that prior to his military service, Mr Whitby was “happy go lucky, he went to work, he came home and enjoyed life as a teenager”[62]. The Applicant stated that after Mr Whitby returned from the War “he was very moody, and you know, pretty down in the dumps”[63]. In the medical examination report dated 13 July 1959, Dr Gillies stated that Mr Whitby was “very irritable and shaky”[64] and referred to “ … anxiety neurosis with functional diarrhoea”[65]. In the further medical report dated 21 September 1959, Dr Alsinger diagnosed Mr Whitby as “suffering from an anxiety state with associated bowel syndrome”[66]. Dr Alsinger’s report stated that Mr Whitby was “always nervous and clearly upset since the War”[67]. Dr Sethi stated that the Applicant[68]: “… reports that he was diagnosed with an anxiety state in 1957 and began self-medicating with alcohol”. Dr Sethi further stated that Mr Whitby’s heavy alcohol consumption contributed to the development of bowel cancer. A cause of death included carcinoma of the colon. The hypothesis therefore arises.
[62] Transcript dated 26 March 2021, P-40, lines 3-4.
[63] Transcript dated 26 March 2021, P-40, lines 8-9.
[64] Exhibit 1, T33, page 76.
[65] Exhibit 1, T33, page 76.
[66] Respondent’s Statement of Facts, Issues and Contentions dated 26 August 2019, paragraph 26.
[67] Exhibit 1, T35, page 79.
[68] Exhibit 12, page 3.
40.As the material does “raise” the hypothesis, there must then be the ascertainment as to whether there is in force a statement of principles determined by the Repatriation Medical Authority under s 196B(2) or (11) of the Act.
41.The parties referred to the Statement of Principles concerning alcohol use disorder (reasonable hypothesis) No. 48 of 2017[69].
[69] Transcript 6 September 2021, P-86, lines 24-26; Respondent. Applicant’s Answer to Questions Raised by Tribunal dated 22 August 2021, page 1.
42.Clause 7 of that Statement of Principles relevantly states:
7 Kinds of injury, disease or death to which this Statement of Principles relates
1This Statement of Principles is about alcohol use disorder and death from alcohol use disorder.
Meaning of alcohol use disorder
2For the purposes of this Statement of Principles, alcohol use disorder means a disorder of mental health meeting the following diagnostic criteria (derived from DSM-5):
A problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least four of the following, occurring within a 12-month period:
A. Alcohol is often taken in larger amounts or over a longer period than was intended.
B. There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
C. A great deal of time is spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects.
D. Craving, or a strong desire or urge to use alcohol. …
G. Important social, occupational or recreational activities are given up or reduced because of alcohol use. …
Death from alcohol use disorder
3For the purposes of this Statement of Principles, alcohol use disorder, in relation to a person, includes death from a terminal event or condition that was contributed to by a person’s alcohol use disorder. …
43.The Applicant submitted that Mr Whitby suffered from alcohol use disorder, specifically referring to ss 7(2), C, D and G of the Statement of Principles No 48 of 2017[70]. Further, the Applicant submitted that Mr Whitby’s death met the requirements of s 7(3) because “… it is likely that his heavy drinking contributed to his bowel cancer”[71].
[70] Applicant’s Answer to Questions Raised by Tribunal on 16 August 2021, page 1.
[71] Applicant’s Answer to Questions Raised by Tribunal on 16 August 2021, page 2.
44.Clause 9 of that Statement of Principles states:
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 alcohol use disorder or death from alcohol use disorder with the circumstances of a person’s relevant service: …
2experiencing a category 1A stressor within the five years before the clinical onset of alcohol use disorder;
Note: category 1A stressor is defined in Schedule 1 – Dictionary.
3experiencing a category 1B stressor within the five years before the clinical onset of alcohol use disorder;
Note: category 1B stressor is defined in Schedule 1 – Dictionary. …
45.The Applicant submitted in relation to those two factors[72]:
[72] Transcript 6 September 2021, P-81, lines 30-45.
So, there’s [a] category 1B stressor being an eyewitness to somebody killed, and that’s attested to in the Hubbard diary. … There were life-threatening events. They talk about hundreds of bombs being dropped, and then the Hubbard diary refers to the category 1B stressors being an eyewitness to someone being killed. … And so his sister said he saw dead bodies. [The] Hubbard diary says that he saw dead bodies. So he had category 1A stressors, category 1B stressors … . [Mr Whitby] was confronted with dead bodies all the time. And so he suffered – within the meaning of the SOP the evidence meets the required factors for the SOP.
46.As to the meaning of the phrase “clinical onset”, the Respondent submitted[73]:
[73] Transcript 6 September 2021, P-86, lines 1, 12-15.
Clinical onset has a particular meaning. … It requires diagnosis from a doctor, and in the … particular concept, which puts it at a point in time, a particular point in time for the purposes of the SOP, when that condition that was diagnosed was suffered.
47.The Respondent submitted that the medical evidence provided by the Applicant did not demonstrate that Mr Whitby suffered from an alcohol use disorder in a five-year period after World War II[74]. In response to whether there was any medical evidence from this specific time period that referred to Mr Whitby’s alcohol usage, the Applicant referred to the relevant medical reports from “… the later 1950s”[75]. The Applicant further submitted: “We don’t have anything – I don’t have anything that went before that”. As such, the hypothesis does not ‘fit within the template’ of that Statement of Principles No 48 of 2017.
[74] Transcript 6 September 2021, P-86, P-87, line 1.
[75] Transcript 6 September 2021, P-91, lines 3-6.
48.The parties both also referred to the Statement of Principles concerning malignant neoplasm of the colorectum No. 37 of 2013[76].
[76] Transcript 26 March 2021, P-30, lines 4-25: Respondent; Applicant’s reply to Respondent’s further submission dated 21 April 2021, paragraph 1: Applicant.
49.The Respondent submitted that factor 6(c) of that Statement of Principles “is met in this case”[77]:
[77] Transcript 26 March 2021, P-30, lines 24-25. See also the Applicant’s reply to the Respondent’s further submission dated 21 April 2021, paragraph 1.
Factors
6The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colorectum or death from malignant neoplasm of the colorectum with the circumstances of a person’s relevant service is:
…
(c)drinking at least 250 kilograms of alcohol before the clinical onset of malignant neoplasm of the colorectum; or
…
50.Clause 5 of that Statement of Principles relevantly states:
Factors that must be related to service
5at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
51.The Respondent submitted that factor 6(c) of that Statement of Principles was “ … met in this case”[78]; that is that the hypothesis as to alcohol and carcinoma of the colon causing death was consistent with the template to be found in that Statement of Principles. The hypothesis raised does therefore contain one factor which is determined to be the minimum which must exist. There is, however, the additional requirement in that Statement of Principles, that the factor be related to Mr Whitby’s service (as required by ss 196B(2)(d) and (e) of the Act and clause 5 of that Statement of Principles).
[78] Transcript 26 March 2021, P-30, lines 24-25. See also the Applicant’s reply to the Respondent’s further submission dated 21 April 2021, paragraph 1.
52.For Mr Whitby’s death to be caused by service-related alcohol consumption the hypothesis must be “reasonable” in accordance with both s 120(3) of the Act and with the Deledio steps.
53.In Repatriation Commission v Michael George Bey (1997) 79 FCR 364; [1997] FCA 1347, Northrop, Sundberg, Marshall and Merkel JJ stated at 730:
In our view that course of reasoning ignores the fact that the expression in question is not “hypothesis” but “reasonable hypothesis”. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker.
54.In Re Evelyn Nellie East v Repatriation Commission (1987) 16 FCR 517; [1987] FCA 242, Jenkinson, Neaves and Wilcox JJ at [42] stated:
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.
55.In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ stated at 414:
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
56.As referred to above, it was stated in Forrester that:
The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. … A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it: see Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 at [53].
57.In Repatriation Commission v Jean Margaret Stares (1996) 66 FCR 594; [1996] FCA 1510, Black CJ, Ryan and Einfield JJ stated relevantly at [19]:
The question s 120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran’s injury with war service … An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts.
58.The Applicant submitted that Mr Whitby’s “heavy drinking was acquired behaviour arising from the norms of service at that time and/or his way of dealing with the stress arising from his wartime experience”[79]. The Applicant submitted that relevant factual aspects that supported the hypothesis as “reasonable” include that[80]:
50Applicant’s Amended Statement of Facts, Issues and Contentions dated November 2020; Exhibit 13, pages 3 and 4, page 6.
[80] Applicant’s Reply to Respondent’s Further Submissions dated 21 April 2021, page 2, paragraph 4.
The deceased veteran Eric Whitby was a non-drinker before the war and came home as someone who could not go without a drink … Alcohol was provided with the rations supplied to Eric’s unit … the inclusion of alcohol in the rations is by itself sufficient to establish that his drinking was “service connected” … Eric’s unit experienced the full trauma of the war … Eric himself provided a statement … in which he averred that he had suffered from nerves and dysentery, which began on Goodenough Island, continued in New Guinea, and thereafter since his return …
The appeal in Forrester was dismissed, where there was the identification in evidence of five particular factual “stressors” as to the Veteran, during service in Vietnam: the facts in that appeal were specific to the Veteran.
60.The Applicant’s references to the availability of alcohol in rations[81] and the traumatic experiences of serving in Papua New Guinea[82] was not specific to Mr Whitby. The Applicant submitted that the “heavy drinking” resulted from the “norms of service at that time”. In the diary of Edward Hubbard dated 16 December 1943, it is stated, for example: “ … then came two bottles of rum, a bottle of wine and cordial between 18 of us … ”. The diary indicates alcohol consumption in the relevant unit in the relevant period. The medical report by the Applicant states that it was “likely” that Mr Whitby acquired a gastrointestinal infection in Papua New Guinea[83] and that either heavy drinking during his service or developing post-traumatic stress disorder would have “very likely significantly contributed” to his diagnosis of bowel cancer[84]. The Respondent submitted that[85]:
[81]Applicant’s Amended Statement of Facts, Issues and Contentions dated November 2020, Annexure G, Diary of Ted Hubbard, entry dated 18 December 1943.
[82]Applicant’s Amended Statement of Facts, Issues and Contentions dated November 2020, Annexure G, Diary of Ted Hubbard, entry dated 20 December 1943.
[83] Exhibit 12, page 3.
[84] Exhibit 12, page 3.
[85] Respondent’s submission dated 20 April 2021, paragraph 17.
“ … a reasonable hypothesis is not raised on the whole of the material, including because the applicable [Statement of Principles] does not uphold the hypothesis connecting the veteran’s death with the circumstances of his operational service. … [T]he … broad submission is that, at its highest, the whole of the material does no more than identify a temporal connection between the date the veteran commenced drinking alcohol and the period of his service. … While it is accepted by the [Respondent] that the veteran consumed at least 250 kilograms of alcohol before the clinical onset of malignant neoplasm of the colorectum as set out in [clause] 6(c) of the [Statement of Principles], that says nothing about the causal relationship between the veteran’s drinking of that quantity of alcohol over many decades and the circumstances of his operational service. As such, [where] the quantitative element relating to the consumption of alcohol in the factor is met, the [Statement of Principles] does not uphold the hypothesis in that all the essential elements prescribed by the [Statement of Principles] are not raised by the material.”
61.The medical treatment of Mr Whitby, the information as to the availability of alcohol, the medical report as to the mental state of Mr Whitby “since the war” and the oral evidence of the Applicant and Mr Whitby’s brother are “some support” for the relevant hypothesis. The Respondent submitted that “at its highest, the whole of the material does no more than identify a temporal connection between the date the veteran commenced drinking and the period of his service”[86]. That material leaves the propounded hypothesis “open” as a possibility. That possibility of connection between service and death is not enough; where there is not material that ‘points’ to the hypothesis connecting the death with the particular service of Mr Whitby.
[86] Respondent’s Submission dated 20 April 2021, page 2, paragraph 17.
62.The alcohol consumption in factor 6(c) must be related to the relevant service of Mr Whitby.
The factor in clause 6(c) “must be related to the relevant service” rendered by Mr Whitby[87] in accordance with clause 5. The hypothesis does not fit with the “template” to be found in clause 5 of the Statement of Principles: that the factor in 6(c) “must be related to the relevant service rendered by the person”. Whilst the existence of an assumption does not necessarily preclude a hypothesis from being “reasonable”, the medical evidence and general material tendered does not support the Applicant’s hypothesis that Mr Whitby’s alcohol consumption was service related. There is not therefore sufficient factual circumstances relating particularly to Mr Whitby, connecting the Veteran’s death with war service in Papua New Guinea. There does exist the possibility of a connection between Mr Whitby’s service and death, which following the decision of Bey is not enough to satisfy the requirement of s 120(3) of the Act that the hypothesis is reasonable. A reasonable hypothesis requires more than a possibility and is to be consistent with the known facts as to Mr Whitby, where there are not sufficient known facts.
[87]Statement of Principles concerning malignant neoplasm of the colorectum No. 37 of 2013, clause 5.
63.As the hypothesis fails to fit within the template in the Statement of Principles (including clause 5), it will be deemed not to be “reasonable” and the claim “will fail”. The remaining Deledio step, which is the consideration of s 120(1)[88] will not therefore be considered.
[88] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 98 as referred to in Forrester v Repatriation Commission [2013] FCA 898 (6 September 2013) at [11] per Mortimer J.
DECISION
64.The decision under review is affirmed.
I certify that the preceding 64 (sixty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
..................................[SGD]......................................
Associate
Dated: 17 November 2021
Dates of hearing:
11 September 2019, 26 March and 6 September 2021 Date of final submissions:
30 August 2021
Counsel for the Applicant:
Solicitors for the Applicant:
Ms M. Reid (11 September 2019); The Hon. D. Wells (26 March and 6 September 2021)
Alexander Law
Advocate for the Respondent: Ms R. Blake (11 September 2019);
Mr B. O’Brien (26 March and 6 September 2021)Solicitors for the Respondent: Moray & Agnew Lawyers
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