The Estate of the Late Muriel Linigen and Repatriation Commission (Veterans' entitlements)
[2018] AATA 307
•5 February 2018
The Estate of the Late Muriel Linigen and Repatriation Commission (Veterans' entitlements) [2018] AATA 307 (5 February 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/6125
Re:The Estate of the Late Muriel Linigen
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:5 February 2018
Date of written reasons: 19 February 2018
Place:Sydney
The Tribunal affirms the reviewable decision.
............................[sgd]............................................
Mrs J C Kelly, Senior Member
Catchwords
VETERANS’ AFFAIRS – War Widow’s Pension – whether veteran’s death was war caused – kind of death – hypothesis connecting the death with the circumstances of the service rendered by the veteran – consideration of relevant Statements of Principles – hypothesis does not connect the kind of death to service - decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 7, 120, 120A, 196B
CASES
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564
Collins v Repatriation Commission [2009] FCAFC 90; (2009) 110 ALD 481
McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144
Repatriation Commission v Codd [2007] FCA 877; (2007) 85 ALD 619
Repatriation Commission v Deledio (1998) 49 ALD 1Repatriation Commission v Hancock (2003) 37 AAR 383
SECONDARY MATERIALS
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse, No. 1 of 2009
Statement of Principles concerning Moderate to Severe Traumatic Brain Injury, No. 62 of 2012
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
19 February 2018
Written reasons for oral decision
At the conclusion of the hearing of this matter on 23 January 2018, the reasons for the decision made were given orally. Shortly after the hearing, the Tribunal served both parties with a copy of the order setting out the decision that was made. On 6 February 2018, the Applicant requested that the Tribunal provide written reasons for its decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth). The written reasons are set out below. They have been prepared from the Tribunal member’s notes, recollection and the evidence because the oral decision was not recorded as a consequence of administrative error.
The reviewable decision
On 14 February 2014, Mrs Muriel Linigen, the Applicant, made a claim for War Widow’s Pension in respect of the death of her husband, Mr Jack Linigen, (the veteran) on 1 November 1973. He was born in 1920. On 6 May 2014, a delegate of the Repatriation Commission (the Respondent) determined that the death of the Veteran was not war caused. On 23 May 2014, the Applicant applied to the Veterans’ Review Board (VRB) for a review of that decision, which was affirmed by the VRB on 8 October 2015. On 23 November 2015, the Applicant applied to the Tribunal for a review of the Repatriation Commission’s decision as affirmed by the Board.
Mrs Linigen was born in 1927 and passed away on 21 January 2016. These proceedings were continued by her estate.
Service
The veteran served in the Australian Army from 18 June 1941 to 13 May 1946. This service is recognised as operational service (and thus eligible war service): s 7(1)(a)) under the Veterans’ Entitlements Act 1986 (the Act).
Death certificate
The cause of death indicated on the death certificate was:
1 Multiple injuries
Standard of proof
In considering the question of whether death is war-caused, the standard of proof is that specified in ss 120(1) and (3) of the Act (reasonable hypothesis/beyond reasonable doubt). Section 120A of the Act qualifies the application of that provision in considering any alleged relationship between the Veteran’s cause of death and his operational service.
In considering all other issues, including determining the ‘kind of death’, the standard of proof is that specified in s 120(4) of the Act (reasonable satisfaction/balance of probabilities).
The police report
A police report of the incident in which the veteran died was dated 23 November 1973. It stated:
About 8 pm on 1.11.73 the victim was crossing Warringah Road from the western side to the eastern side. He stopped at the median strip and then walked a further 12 feet towards the eastern side. He was struck by a 1964 Holden sedan… which was being driven by the offender at an estimated speed by him in his statement by his statement of 50 m.p.h. As a result of the collision, death was instantaneous to the victim. The impact was of such force that his legs and large portions of flesh were torn from the body.
Point of impact is not able to be ascertained but it is ascertained from portions of the victim’s body that the stopping distance was in excess of 350 feet. Weather conditions were fine. The offender could give no explanation as to the cause of the accident, stating that he never saw the pedestrian at any time. Street lighting good.
The issues to be determined
In light of the hypothesis proposed, and despite the agreement between the parties at the hearing as to the “kind of death”, the Tribunal approached the issues in this case as follows, in accordance with the authorities, including Repatriation Commission v Hancock (2003) 37 AAR 383 at [11] and Repatriation Commission v Deledio (1998) 49 ALD 19 and Woodward v Repatriation Commission (2003) 37 AAR 383:
·What is the “kind of death”?
·Considering all the material before it, does that material point to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran? No question of fact arises at this stage. If no such hypothesis arises, the application must fail.
·If the material does raise such a hypothesis, is there in force a Statement of Principles (SoP) determined by the authority under s 196B(2) or (11) of the Act. If no such SoP is in force, the approach set out in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 (at 571), must be followed.
·If an SoP is in force, the Tribunal must form an 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” in the SoP. If the hypothesis fails to fit the template, it will be deemed not to be “reasonable” and the claim will fail.
·Is the Tribunal satisfied beyond reasonable doubt that the death was not war caused? If not so satisfied, the application must succeed. It is only at this stage that the Tribunal is required to find facts from the material before it. No question of onus or proof or application of any presumption will be involved.
Kind of death
The legal representatives for Mrs Linigen and the Respondent agreed during the hearing that the “kind of death” in this case was severe traumatic brain injury. It was agreed that there was a relevant SoP, Moderate to Severe Traumatic Brain Injury No. 62 of 2012 (SoP 62).
However, it seemed to the Tribunal that the argument put on behalf of Mrs Linigen at the hearing relied, in part, on another kind of death, “death from alcohol dependence or alcohol abuse”. That was the kind of death relied on in the Amended Statement of Facts, Issues and Contentions filed in Mrs Linigen’s case. It is therefore necessary for the Tribunal to make a finding as to the medical cause or causes of death.
The hypothesis connecting the veteran’s death and service relied on by counsel for Mrs Linigen during the hearing was:
·The veteran began consuming alcohol during service.
·He served in Darwin during the Japanese bombing in 1943.
·He served in Moratai and Balikpapan.
·While at Balikpapan, three members of his unit died, and he killed two Japanese soldiers.
·He continued to drink alcohol to help him cope with his war memories.
·He died of multiple injuries suffered while he was crossing the road when intoxicated, and stepped out in front of a vehicle.
·He had an alcohol habit as a result of his stressful service.
·His alcohol habit therefore caused or contributed to his death.
Counsel for the Applicant relied specifically on the SoP for Alcohol Dependence and Alcohol Abuse, No. 1 of 2009 (SoP 1) which provides:
“death from alcohol dependence or alcohol abuse” in relation to a person incudes death from a terminal event or condition that was contributed to by the person’s alcohol dependence or alcohol abuse
“terminal event” means the proximate or ultimate cause of death and includes:
…
(e) cessation of brain function.
[original emphasis]
It is important to note that the identical definition of “terminal event” appears in SoP 62.
Counsel for Mrs Linigen relied on Justice Gordon’s decision in Repatriation Commission v Codd [2007] FCA 877; (2007) 85 ALD 619 (Codd), and in particular at [40], where her Honour said:
In the present case, the kind of death met by the veteran was not death by road accident but death from (in the sense of arose out of, or was attributable to) alcohol dependence or alcohol abuse.
The Respondent relied on the case of Collins v Repatriation Commission [2009] FCAFC 90; (2009) 110 ALD 481 (Collins). Relevantly, in Collins, the Court explicitly agreed with her Honour’s reasoning in Codd “at [31]-[39]”.[1] The Court endorsed the approach taken by her Honour in those paragraphs, and by other judges in other cases, that the “kind of death” was the medical cause or causes of death. The Court did not endorse her Honour’s conclusion in Codd at [40], as to the proper characterisation of the death in that case.
[1] Collins at [46] and [47].
It follows from Codd and Collins, that the kind of death in this case would not be correctly characterised as “traffic accident”. Rather, the medical cause or causes of death are to be determined.
The Tribunal finds that the kind of death suffered by the veteran was severe traumatic brain injury. That finding is based on the observations of witnesses at the scene of the accident about the circumstances of the accident, the damage to the vehicle including a broken windscreen, and the damage to the veteran’s body. Those witnesses included Detective Sergeant Brown, Constables Bayes and Carrol, Sergeant Rope, Mr McMahon, an ambulance officer, the passenger and driver of the vehicle that struck the veteran, and Mr Otter, who observed the accident as he drove a vehicle on the other side of the road towards the veteran and the vehicle which struck the veteran.
The finding is also based on detailed findings in the “Medical report upon the examination of the dead body of“ the veteran, dated 3 November 1973 at 10 am. The examiner reported “Multiple injuries” as the direct cause of death.
There was no finding in the medical report as to the involvement of alcohol in the death. Blood samples were taken and submitted to the Analytical Laboratories at Lidcombe on 5 November 1973. The samples were analysed. One contained 0.335% alcohol and no drugs were found in the other. The analysis was dated 21 November 1973.
SoP 62
The factor in SoP 62 that must connect death from severe traumatic brain injury to service is set out in para 6(a):
(a)Experiencing a significant force from a specified event at the time of the clinical onset of moderate to severe traumatic brain injury.
SoP 62 provides at para 9:
“death from moderate to severe traumatic brain injury” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s moderate to severe traumatic brain injury
[original emphasis]
Counsel for Mrs Linigen agreed that SoP 62 appears to be directed to brain injuries suffered in battle conditions, for example, from bombing or bullet wounds.
The Tribunal finds that the hypothesis, if found to be raised by the material, cannot fit SoP 62 or connect the death to service as a sub-hypothesis as discussed in McKenna v Repatriation Commission [1999] FCA 323; (1999) 86 FCR 144.
The Tribunal considers that that is the end of the matter and the application must fail. However, it proceeds to consider the submissions made by counsel for Mrs Linigen which relied on SoP 1.
Does the material before the Tribunal point to an hypothesis linking death with service?
The Tribunal finds, contrary to the Respondent’s submission, that there is material before it which points to the hypothesis proposed in support of Mrs Linigen’s case. Following is a summary of that evidence.
Read strictly as the Respondent contended, Mrs Linigen’s answers in the “Widows Report – Alcohol Questionnaire”, do not connect his beginning to drink alcohol or his change in frequency of drinking, to his service. However, the Tribunal considers that the answers should be read in the context that it was a form filled out for the purpose of applying for a pension based on the claim that the veteran’s consumption of alcohol was caused by war service.
In summary the form states that the veteran began to consume alcohol on regular basis in 1941 because of peer pressure, and that he drank “10 standard” beers, 2 to 3 times per week. While it is true that the veteran turned 21 in 1941, the then legal age for consuming alcohol, it is also the year that he enlisted in the Army.
The form states that the veteran’s alcohol consumption change significantly in 1946, “started drinking daily after discharge due to stress and habit”. As stated above he was discharged in 1946.
It also stated that he consumed alcohol just prior to his death. He drank 15-20 standard drinks of beer and sherry every day.
A historical report by Writeway Research Services dated 4 July 2016 (the historian’s report) was provided to the Tribunal by the Applicant. The historian’s report stated that in December 1942 his Unit went to the Adelaide River about 100 kilometres south of Darwin and individual batteries were rotated to the Darwin area. Japanese bombing raids occurred from 19 February 1943 to 12 November 1943. The veteran left Darwin on 15 September 1944.
The veteran’s service outside Australia began when he disembarked at Moratai on 11 June 1945. The historian’s report states that he embarked “per LST454” for Balikpapan on 22 June 1945 but does not provide a date of disembarkation there. The next entry says “transferred to 2/33 Inf Bn Balikpapan 27 November 1945” and that he left Balikpapan for Australia on 25 January 1946.
The historian’s report concluded that the veteran arrived in Balikpapan in November 1945 after the surrender of the Japanese forces in August 1945. The Tribunal does not accept that finding is correct based on the records he quotes. It does not accept that it took from 22 June 1945 until 27 November 1945 to travel from Moratai which is northwest of West Papua, to Balikpapan, which is on the east coast of the island of Borneo. It finds that the historian misunderstood the veteran’s service record.
The historian’s report sets out the history of Operation Oboe 6 “a major amphibious landing” by Australian troops at Balikpapan, Borneo on 1 July 1945 and records deaths in the veteran’s unit.
It finds that that material points to the veteran being involved in Operation Oboe 6 and being transferred to 2/33 Infantry Battalion on 27 November 1947 while at Balikpapan.
In a letter dated 3 September 2002, the veteran’s brother-in-law wrote that he had known the veteran for 26 years, which the Tribunal infers means prior to his death in 1973, and that he was a very heavy drinker which lead to “excess outburst”.
The evidence of Dr Dinnen, psychiatrist, assisted the Tribunal to understand the record from Morisset Psychiatric hospital (Morisset). It shows that the veteran was referred by North Ryde Psychiatric Centre under the Inebriates Act and was hospitalised there from 19 May 1966 to 11 August 1966. One of his daughters, Mrs Kitching, recalled that that admission was after he was walking around very drunk in their backyard, and “completely out of it”.
Mr Linigen, the veteran’s younger son, was born in 1961. He only ever lived at their French’s Forest home. He said that he had a very difficult relationship with his father. He drank every day and argued. He was not violent but there was lots of verbal abuse directed towards his mother and his four older siblings. The veteran’s drinking defined his relationship with his father. The veteran did not eat with the rest of the family. When one of his sisters moved out at the end of year 10, the veteran and his wife slept in separate bedrooms. The veteran left home before his youngest son got up in the mornings. His sister told him that their aunt had said that his parents had been introduced by the veteran’s brother-in-law. He did not really know, but thought that they knew each other before the war and that his mother had said that they danced together before the war. He thinks that the veteran only drank lightly before the war. He thought that came from his mother or his grandmother and his siblings. Mrs Linigen told Mr Linigen that the veteran was like that because of the war.
He said that there were a couple of periods when the veteran was not drinking, for example, after his admission to Morisset when he was more interested in his children.
His father had a history of working in different jobs. He used to catch a bus to work. He had a Ute but the then had an accident. He had the same routine. He had to cross six lanes of Warringah Road every evening to get home. There was a median strip in the middle. The veteran did not come home sober for the last three or four years of his life. His speech was slurred when he got home at about 8:00pm or 9:00 pm.
Mr Linigen recalled going to the home of a friend of the veteran from the war, who is now dead. He recalls that friend saying to him that his father had been a good shot and got two in two minutes. He understood that to mean that is father had shot two Japanese soldiers. Generally his father was not close to others in his unit. His father said that the war was because of rich people on both sides.
He said that Mrs Linigen went into a nursing home in 2014 and was there about 18 months before she died. He would not have relied on her memory by the time she went into the nursing home.
Mrs Bennett is the eldest child of the veteran and Mrs Linigen. She was born in 1950 and left home in 1971 when she was 20. Her earliest memory of her father drinking was when she was 10 years old after they had moved from St Ives to French’s Forest. Prior to that, his drinking had not impacted on her. She recalls that he was better for a while after he had been in Morisset. She recalled that he had been admitted there twice.
She said that he spent all his money on alcohol which led to fighting. Their mother cleaned to earn money. He did not talk about his childhood or the war.
Mrs Bennett said that the veteran had left home before she got up in the morning and she was in bed before he came home. She woke up a few times to hear her parents fighting. She recalls her other brother fighting with the veteran. He pushed the veteran into the bedroom door and broke it. That happened after she had left home. She thought that the veteran had been banned from a couple of hotels. She saw him a bit at weekends. He went to hotels then. She related a history of the veteran working.
She recalls being told by a cousin that her mother and the veteran went out in a group. They were from the St Ives area. Mrs Linigen was from Dee Why. Her parents met before the war. Her mother had an exercise book of cuttings and poetry she kept during the war. It did not specifically mention the veteran.
Mrs Bennett had looked after her mother from about 2004 to 2014. Mrs Linigan had had a few strokes. She broke her hip and was hospitalised. She was in a room very seriously ill and she thinks that the staff thought that Mrs Linigen was going to die. She was badly affected the anaesthesia. Mrs Bennett started looking for a nursing home. Her mother was diagnosed with dementia while in the nursing home.
Mrs Kitching was born in 1953. She spent most of her time with her grandmother from when she was about seven years old, that is, from 1960, until she was about 10 years old. She went home for some Christmases. They lived at Frenchs’ Forest then. She did not remember living at St Ives. She has no good memories of her father. She believed that her parents first met when her aunt’s husband was dating their aunt before the war. In about 2010, she had a conversation with Mrs Linigen about why she had gone to live with her grandparents at Dee Why but Mrs Linigen could not or would not say. Her mother told her that she had broken her nose in a car accident when she was three years old. Her father was driving and was drunk.
Dr Dinnen provided a report dated 19 June 2017 and gave oral evidence at the hearing of this matter. He expressed the following opinions. The kind of death was death from multiple injuries suffered in the accident. It was more likely than not that he was intoxicated when crossing the road. The veteran suffered from alcohol use disorder in para 3(b) of SoP 1 and satisfied 6(b) and/or 6(c) of SoP 1. An alcohol level of .335 would cloud judgment and cognition. The veteran was crossing the road with impaired ability to judge distance and time. The most likely cause of the veteran’s alcohol use disorder was his five years of service, which including being in Darwin during the bombing. He had severe alcohol dependence.
Mr Otter, a witness to the accident who was driving on the opposite side of the road towards the veteran and the on-coming vehicle which struck the veteran, stated that the veteran “just walked straight into the car”.
Mr Coleman, the passenger in the vehicle that struck the veteran, said that “there was just this smash, all I saw was a glimpse of the veteran in front of the windscreen which then broke”. He calculated the speed of the vehicle was 50 mph.
Mr Jewel inspected the vehicle on 6 November 1973. He found no mechanical defects in the vehicle.
The driver of the vehicle had an alcohol level of .075, which was less than the then alcohol limit of .08. He said that the veteran stepped out suddenly from the median strip straight in to the oncoming vehicle. He was found not guilty of culpable driving in February 1975.
The Respondent provided seven journal articles which it argued demonstrated that post-mortem blood alcohol analysis was unreliable.
Does the hypothesis fit SoP 1?
The Tribunal does not accept that the hypothesis fits SoP 1 because the material does not point to the veteran experiencing a category 1A or 1B stressor within the five years before the clinical onset of alcohol dependence. Category 1A and 1B stressors are set out in SoP 1 as follows:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
If the veteran experienced a category 1A or 1B stressor while near or in Darwin, the SoP requires clinical onset to have occurred within five years of 12 November 1943, that is, before 13 November 1948. If the stressors were suffered during the conflict on Balikpapan, the SoP requires that clinical onset occurred within five years of the end of that conflict when the Japanese surrendered on 17 August 1945, that is before 18 August 1950.
In support of his diagnosis of alcohol dependence, Dr Dinnen referred to statements by the veteran’s children about the dysfunction in the family relationships, the heavy drinking, the inordinate time he was away from the family drinking, his consuming large amount of alcohol and his admission to Morriset. That evidence related to the period from 1960 onwards, after the family had moved from St Ives to French’s Forest. The Tribunal accepts that there is evidence from that time, but the material before the Tribunal, summarised above, does not point to three or more of the diagnostic criteria for alcohol dependence in SoP 1, at para 3(b), (1) to (7), occurring at any time in the same 12-month period before then or within the relevant five year period.
Therefore, the hypothesis is not “reasonable” and the claim must fail. It is therefore unnecessary to consider the submission connecting the hypothesis with the veteran’s death.
Decision
The Tribunal affirms the reviewable decision.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
.............................[sgd]...........................................
Associate
Dated: 19 February 2018
Dates of hearing: 1, 2 and 5 February 2018 Counsel for the Applicant: Mr T Saunders Solicitors for the Applicant: Kemp & Co Lawyers Solicitors for the Respondent: Ms E Baggett, Moray & Agnew Lawyers
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