Thomas and Repatriation Commission
[2003] AATA 494
•30 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 494
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/422
VETERANS' APPEALS DIVISION ) Re MARY MAJELLA THOMAS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date30 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................(Sgd)......................
Mr I R Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war-widow’s pension – whether veteran’s death was caused by his war service – suicide – whether reasonable hypothesis established connecting death to war service – whether death causally related to service
Veterans’ Entitlements Act 1986 ss 68, 70, 120, 196
Statement of Principles No 72 of 1996
Repatriation Commission v Smith (1987) 15 FCR 327
Hawkins v Repatriation Commission (1993) 30 ALD 59
Repatriation Commission v Bendy (1989) 18 ALD 144
Re Repatriation Commission and Campbell (1987) 13 ALD 598
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
Doolette v Repatriation Commission (1990) 21 ALD 489Re Blyth and Repatriation Commission (1982) 4 ALN 147
REASONS FOR DECISION
30 May 2003 Mr I R Way, Member 1. This is an application by Mary Thomas (the applicant) for review of a decision of the Repatriation Commission made on 7 September 2000, and affirmed by the Veterans’ Review Board (VRB) on 14 March 2002, which determined that the death of the applicant’s late husband, Barry Thomas (the veteran), was not defence caused within the meaning of section 70 of the Veterans’ Entitlements Act 1986 (the Act).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (T1-T6) and further documentary evidence as follows:
Exhibit R1 Additional service medical documents
Exhibit R2 Medical opinion by Dr Grant dated 30 July 2002
Exhibit R3 Medical opinion by Dr Grant dated 24 September 2002Exhibit R4 Referrals to Dr Grant/Final opinion – Dr Grant dated 24 October 2002
3. The applicant was represented by Mr JF Wall and the respondent was represented by Mr M Smith. The applicant and Dr PA Grant, the Department’s Senior Medical Officer, Compensation, gave oral evidence.
4. The veteran was born on 9 July 1951 and served as a member of the Defence Force, in the Australian Army, from 27 January 1976 to 25 October 1985. This constitutes defence service pursuant to section 68 of the Act.
5. The late veteran died at 1 Military Hospital, Yeronga, on 25 October 1985, the cause of the death being hanging.
6. The applicant contends that her husband’s death was defence caused within the meaning of section 70 of the Act, as a result of the following sequence of events:
§while playing service organised sport the veteran was struck on the head by a cricket ball and as a result sustained a head injury;
§symptoms of a neurological nature appeared a short time after the cricket ball incident, which necessitated investigation;
§subsequent investigations indicated the existence of a cerebral tumour;
§the tumour was an intra-cerebral meningioma tumour, which was removed and this led to the veteran developing organic personality syndrome, which led to depression, which led to him taking his own life by suicide.
7. As such it was contended that the cricket ball incident contributed to his death and that therefore the veteran’s death should be accepted as service related.
Legislative Framework
8. The Act relevantly provides as follows:
“70 Eligibility for pension under this Part
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
…
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member 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 upon having ceased to perform duty; or
(c)the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d)the injury or disease from which the member died, or has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of 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 defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e)the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence-caused injury or defence-caused disease, as the case may be;
but not otherwise.
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
…
196B Functions of Authority
(1) This section sets out the functions of the Repatriation Medical Authority.
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
(4) If the Authority:
(a)receives a request under section 196E to carry out an investigation in respect of a particular kind of injury, disease or death; or
(b)of its own initiative, decides that a particular kind of injury, disease or death ought to be investigated for the purposes of this Act to find out whether a Statement of Principles may be determined in respect of it;
the Authority must carry out an investigation to obtain information that would enable the Authority to establish:
(c)how the injury may be suffered, the disease may be contracted or the death may occur; and
(d)the extent (if any) to which the injury, disease or death may be war-caused or defence-caused.
(5) If, after carrying out the investigation, the Authority is of the view that there is sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3), in respect of that kind of injury, disease or death, the Authority must do so as soon as practicable.
(6) If, after carrying out the investigation, the Authority is of the view:
(a)that there is no sound medical-scientific evidence on which it can rely to determine a Statement of Principles under subsection (2) or (3) in respect of that kind of injury, disease or death; or
(b)that the sound medical-scientific evidence on which it can rely is insufficient to allow it to do so;
the Authority must make a declaration in writing:
(c) stating that it does not propose to make a Statement of Principles; and
(d) giving the reasons for its decision.
…
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.
…”
9. The standard of proof required for cases in which the veteran has defence services is prescribed by section 120(4) (as effected by section 120B) of the Act. The Tribunal must, in each case, determine to its reasonable satisfaction the question whether the veteran’s death was defence service caused, applying the civil standard of proof of the balance of probabilities.
10. Where there is a Statement of Principles (SoP) made under section 196B(3) of the Act, the Tribunal must first determine whether, to its reasonable satisfaction, the material before it raises a connection between the veteran’s death and his service. Secondly the Tribunal is required to decide whether the applicable SoP upholds the contention that the veteran’s death is, on the balance of probabilities, connected with his service. This last question must also be determined to the reasonable satisfaction of the Tribunal.
11. The relationship to service required by a SoP must be one of the relationships prescribed in section 196B(14) of the Act as set out above.
12. There is no dispute between the parties and the Tribunal accepts that there is in place a RMA SoP relevant to this matter, namely Instrument No 72 of 1996 as amended by Instrument 178 of 1996, suicide or attempted suicide.
13. Instrument No 72 of 1996 relevantly provides:
“Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that suicide or attempted suicide can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. The factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, suicide or attempted suicide or death from suicide or attempted suicide is connected with the circumstances of a person’s relevant service are:
(a)suffering from depression at the time of suicide or attempted suicide; or …
Other definitions
‘depression’ means any psychiatric disorder with depressive features, such as the following disorders as defined in DSM-IV:
(i) Major depressive disorder, ICD code 296.2 or 296.3;
(ii) Dysthymic Disorder, ICD code 300.4;
(iii) Bipolar I Disorder, ICD code 296.5, 296.6 or 296.7;
(iv) Bipolar II Disorder, ICD code 296.89;
(v) Cyclothymic disorder; ICD code 301.13;
(vi) Mood disorder due to a general medical condition, ICD code 293.83
(vii) Substance-induced mood disorder, ICD code 291.8 or 292.84;
(viii)Adjustment disorder with depressed mood, ICD code 309.0, 309.1,309.4 or 309.28;
(ix) Premenstrual dysphoric disorder, ICD code 311;
(x) Minor depressive disorder, ICD code 311;
(xi) Recurrent brief depressive disorder, ICD code 311;
(xii) Depressive disorder not otherwise specified, ICD code 311; and
(xiii) Schizo-affective disorder, ICD code 295.7;
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders…”
Background Facts
14. There is substantial agreement between the parties about a number of background medical facts in respect of this matter. In view of this, and on the material before it, particularly the extensive medical evidence and medical opinions, the Tribunal finds as follows:
(a)the late veteran committed suicide on 25 October 1985;
(b)at the time of the veteran’s suicide he was suffering from depression;
(c)the veteran’s depression was causally related to organic brain damage suffered by the veteran; and
(d)the veteran suffered from a brain tumour (meningioma) and damage from this tumour and its surgical removal on 3 January 1985 caused him to suffer organic brain damage and this resulted in the veteran suffering the mental disease of organic personality syndrome.
Issues
15. Following the above findings, it is clear that factor 5(a) of the relevant SoP is met in that the veteran suffered from depression at the time he committed suicide.
16. The crucial issue then is whether the Tribunal is reasonably satisfied that the material before it raises a connection between the veteran’s depression and his service.
The Applicant’s Evidence
17. In a written statement dated 26 February 2002, the applicant said:
“The eleven years I was marred to Barry he was a very healthy person, up until the accident with the cricket ball.
He was playing a registard (sic) game of cricket for the Army The Babblers Club.
I know up until that day Barry was in good health and as a result from the accident he is not with us now.”
18. In her oral evidence the applicant said she was married to the veteran (date of marriage 30 March 1974) and that she was present at the indoor cricket match some three to four weeks prior to his admission to 1 Military Hospital on 20 December 1984, when her husband was struck between the eyes by a thrown cricket ball, resulting in his being knocked to the ground, being unconscious for about one minute. He was bowling at the time and when he got up he finished his over (one ball) and then left the field feeling dizzy. They then went home. She said her husband had subsequently attended the RAP but she did not know the outcome of this attendance. It was her evidence that the veteran complained of headaches and that his mood changed, he becoming “a different bloke altogether”, and that his performance at work also suffered. She said that just prior to Christmas she, her husband and four children were driving from Townsville to Brisbane when her husband started to drive all over the road and over median strips and that he was in extreme pain. She said that she had to take over driving from Ayr to Brisbane and that when they got to Brisbane her husband was admitted to 1 Military Hospital, where some days later his tumour was diagnosed and subsequently surgically removed. She said that post the operation he became more violent to her and the children with fights and treats of violence.
19. It was the applicant’s evidence that she was not aware of any blow to her husband’s head prior to the cricket ball incident and that prior to him becoming ill he had been a very good father and family provider with a happy-go-lucky attitude.
Medical Evidence
20. As indicated above the Tribunal had before it extensive medical evidence, particularly that given by Dr Grant about the nature and the extent of the veteran’s tumour, and, following consideration of all of this evidence, the Tribunal has made the findings in paragraph 14 above.
21. In respect to the relevance of the cricket ball incident, various medical opinions have been put before the Tribunal.
22. Dr R James, Consultant Psychiatrist, 1 Military Hospital, who had the opportunity to examine the veteran on several occasions while he was admitted to 1 Military Hospital, in a report dated 15 August 1986, said:
“Thomas had not complained of any symptoms prior to being hit on the head by a cricket ball in early December 1984. After that he had a deterioration in health which involved some confusion, fatigue, irritability and poor co-ordination. On admission to RBH on 20.12.1984 he was disorientated in time, place and person with a labile mood.
I conclude from this sequence of events that the hit on the head by the cricket ball produced some concussion, or some physical change, perhaps a small haemorrhage or some edema within the tumour which resulted in a deterioration in his general condition and therefore produced symptoms which required medical treatment and which then led to his admission to RBH. Had the hit on the head with the cricket ball not occurred, it may have been quite some time before the natural progression of the tumour produced symptoms. I am unable to say whether this period of time would have been weeks or months or years. But it does seem clear that the hit on the head by the cricket ball caused some acceleration of the progression of the condition of cerebral impairment due to the meningioma.”
23. Dr B Hall, Neurosurgeon, based on medical notes and reports, provided a written report dated 5 September 2000. In this report he stated:
“Mr Thomas had a number of admissions to the Outpatients Department at the No 1 Military Hospital through late 1984. Medical notes show that on the 2nd October, 1984, he presented with nausea and dizziness and was complaining of these symptoms since being struck on the head 4 days previously. He suffered headaches but there were not severe. There was some photophobia of his right eye only. On examination his fundi were clear, pupils equal and reacting to light. He was assessed as having either a mild viral illness or a post head injury problem and treated with reassurance.
He was next seen on 2nd November, 1984, in a highly distressed state and unable to cope. There was a query as to whether he was suffering from an inadequate personality. He was advised to go home and stay there over the week-end and his symptoms would be chased up. His next presentation was the 3rd November, 1984 when he complained of a head cold which had been present for approximately one week.
The next review of Mr Thomas was in the Casualty Department of 1 Military Hospital on the 20th December 1984. He presented with his left arm being weaker. There was a history of being hit in the right eye by a cricket ball two weeks previously and he may have suffered a loss of consciousness. Since then he had developed severe headaches, nausea, dizziness, was clumsy with memory loss.
Examination showed his right arm appeared weaker. He was noted to be confused and disoriented and was transferred to the Royal Brisbane Hospital. At Royal Brisbane Hospital, Mr Thomas was noted to be disoriented in time, place and person with a labile mood.
Neurological examination revealed cerebellar dysfunction, a right homonymous hemianopia, right pronator drift, right sensory in attentiion and other signs of parietal lobe dysfunction. A CT brain scan revealed a large, slightly hypodense uniformly enhancing rounded lesion centred at the trigon of the left lateral ventricle. The temporal and occipital horns of this ventricle were dilated. Midline structures displaced to the right.
On the 3rd January, 1985, Mr Thomas underwent a left parieto-temporal craniotomy and excision of an intraventricular meningioma. Post-operatively he was confused and had a receptive and expressive dysphasia and developed depression, becoming withdrawn and labile. He was discharged from the Royal Brisbane Hospital on the 23 January, 1985 continuing his rehabilitation through the 1st Military Hospital. He continued to improve but had ongoing problems with speech and episodes of withdrawal behaviour and depression.
On the 25th October, 1985 he was found cyanised and lifeless by staff, hanging by his own belt in the shower and a diagnosis of death by hanging suicide was made.
In answer to your query of the contribution of the blow to the head from the cricket ball to death by hanging on the 25th October, 1985, I believe there is very little if any contribution. Mr Thomas appears to have suffered from concussion following the blow to the head by the cricket ball in early December, 1984. It is noted that Mr Thomas presented to 1 Military Hospital on a number of occasions complaining of a headache prior to December and there may be some relationship between these headaches and his ventricular tumour. In any case, when he was reviewed on the 23 December, 1984, he was noted to have signs and symptoms consistent with the introventricular tumour. There was no evidence on the CR scan of cerebral trauma and in particular cerebral contusions, sub-dural and intra-cerebral haematomas were excluded. Mr Thomas subsequently underwent surgery for removal of the meningioma and suffered major complications from this including personality change, expressive and receptive dysphasia and what sound like some other parietal lobe dysfunction. These latter symptoms are what lead to Mr Thomas eventually committing suicide.
In conclusion most likely suffered from concussion following the blow to the head by the cricket ball. His symptoms on presentation at Royal Brisbane Hospital were much more in keeping with the intraventricular meningioma which was confirmed on CT scan. He had major complications from this and its surgery, eventually resulting in suicide in October, 1985. I do not believe that the blow from the cricket ball to the head of Mr Thomas affected his prognosis and that his changes were due almost solely to his intraventricular meningioma and its surgery.”
24. Dr P Grant, Senior Medical Officer Compensation, provided three written opinions (Exhibits R2, R3 and R4) and gave oral evidence.
25. In respect of the cricket ball incident Dr Grant stated (Exhibit R4):
“I consider that Dr Hall outlines a clear case as to why the cricket ball injury of December 1984 played little role, if any, in Mr Thomas being investigated for a suspected intracranial mass in late 1984. It is highly relevant that the late veteran had already attended with nausea, dizziness, and headaches on 2 November 1984 after being hit in the head in a separate incident four days earlier. In retrospect, this presentation was as a result of increasing pressure inside the brain as a result of the meningioma; the position of which lead to increased fluid in the brain ventricles or hydrocephalus (vide infra).
Dr Hall’s summary of events is consistent with the treating medical practitioners concluding that further investigations were not warranted in October 1994, in my opinion, probably because no localising signs were detected. The symptoms appear to have abated at least to some extent. The presentation in November 1984 described by Dr Hall is atypical for a intracranial mass.
Whilst I note that Dr Hall refers to left arm weakness as a presenting symptom when the late veteran attended on 20 December 1984, the examination findings on 12 February 1985 were of right pronator drift and right sensory inattention with power, tone, and deep tendon reflexes being normal and equal for both upper limbs (see T4, folio 34).
The hospital notes do not lend support to the submission that Mr Thomas would not been investigated and a brain tumour found had he not been struck in the head, in my opinion. The above history is suggestive that the mass having reached a stage where it was likely to cause more noticeable symptoms at around that time.
In that regard, the anatomical changes described by Dr Hall indicate that the lesion was a left intraventricular meningioma causing localised hydrocephalus with midline shift. This is to be distinguished from a mass between the two lateral ventricles or ‘interventricular meningioma’ as used by Dr Cornwall, then a resident medical officer, and others to describe the tumour. The latter term is almost certainly an incorrect reference to the anatomical site of the tumour, in my opinion.
The distinction is important on two accounts. Firstly, the localised collection of fluid and midline shift makes it highly likely that Mr Thomas would have presented probably within days or weeks of when he did, in my opinion, had the cricket ball injury never occurred. Secondly, the amount of key brain tissue affected in removing such a tumour is likely to be greater with an intraventricular versus an interventricular tumour, with a concomitant risk of increased organic brain damage both from pressure from the tumour and inherent difficulties of surgery required.
Whilst I note that the late Dr James, Psychiatrist, commented on 15 August 1986 that Mr Thomas may not have presented for some time with symptoms of a meningioma had he not been hit with a cricket ball, Dr Hall has opined that the CT head scan on presentation did not show significant changes of acute intracranial trauma as might be expected if the cricket ball injury had caused significant damage to the tumour or normal brain tissue. This finding, in combination with the advanced intracranial pressure changes seen on the CT head scan, makes it unlikely that the cricket ball injury was responsible for the late Mr Thomas attending two weeks later in my opinion. In saying this, I accept that the minor head trauma received in early December 1984 may have caused the late veteran to reflect on underlying symptoms similar to those leading to the presentation in early October 1984.”
26. In his oral evidence he clearly explained, with the help of visual aids, the reasons for the conclusions he had reach in respect of the nature, location and extent of the veteran’s brain tumour and the effects, if any, of the cricket ball incident.
27. When asked to give an opinion as to what would have happened to the veteran if there had been no cricket ball incident, Dr Grant opined that he would have expected to see worsening symptoms such that investigation would have been necessary but he had great difficulty in putting a timeframe on such an outcome, saying it might have been anywhere between one and three months and up to six months.
Submissions
28. Mr Wall, for the applicant, submitted that the veteran clearly met Factor 5(a) of the relevant SoP and that Dr James’ opinion should be accepted, namely that the hit on the head by the cricket ball caused some acceleration of the progression of the condition of cerebral impairment (associated with depression), due to the memingioma. Mr Wall contended that Dr Grant’s opinion leant support to Dr Hall’s opinion, in that Dr Grant had stated that the cricket ball incident could have brought the symptoms to the fore and that if the veteran had not been hit by the ball, the veteran could have survived one to three months, up to six months more than he did.
29. It was therefore submitted that the material before the Tribunal showed that the veteran may have survived longer if he had not been hit by the cricket ball and that his death had been accelerated or precipitated by a service related injury.
30. Mr Smith submitted that the veteran’s condition had become critical by the end of December 1984 and, on balance, the cricket ball incident was of little or no relevance in respect of this condition. As such it was submitted that the hypothesis that the operation on the veteran’s brain would not have taken place but for the cricket ball incident is not tenable at the required standard of proof. It was the respondent’s submission that the decision under review should be affirmed.
Consideration
31. As indicated above the Tribunal is satisfied that the veteran’s circumstances satisfy Factor 5(a) of the relevant SoP, namely “suffering from depression at the time of suicide”.
32. The crucial issue in this matter is whether the cause of the depression is related to service rendered by the veteran. Pursuant to section 196B(14) of the Act, in this case the questions before the Tribunal are:
§Did the veteran’s depression result from an occurrence while the person was rendering service?
§Did the veteran’s depression arise out of or was it attributable to his service?
§Was the veteran’s depression contributed to in a material degree, or was it aggravated, by his service? or
§Was the veteran’s depression due to an accident that would not have occurred but for the veteran’s service?
33. The Tribunal is satisfied that the veteran suffered a blow to the head from a cricket ball as described by the applicant.
34. The Tribunal is also satisfied that this blow to the veteran’s head caused concussion but there was no evidence of cerebral trauma and in particular no cerebral contusions, subdural or intracerebral haematoma.
35. The question then is whether the blow to the veteran’s head by the cricket ball was such that there is an affirmative answer to any of the questions set out in paragraph 32.
36. In respect of connecting relevant factors with service, questions of causation, attributability, contribution and aggravation have been addressed by the Federal Court in many cases.
37. While the factual basis of each case varies, his Honour Justice Davies, has set out the approach which should be taken in determining questions of attributability, materiality and contributing cause as follows.
38. In Hawkins v Repatriation Commission (1993) 30 ALD 59, Davies J stated (at 62):
“A disease will be attributable to eligible service if the service contributed in a material way to its development…issues of causation must be approached in a factual way in the light of common sense and human experience…in causation, the issue is whether one event has equivalent relationship with another. It is misleading to speak of the test as objective for it may well be the serviceman’s personal response to an event which provides the causal development. The question is simply one of fact as to whether one event contributed to another.”
39. In Repatriation Commission v Bendy (1989) 18 ALD 144, Davies J, in addressing the question of “materiality and contributing cause”, said (at 146):
“In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution that is deminimus which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The Term ‘material’ is here used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely ‘of substantial import of much consequence’, but rather in its legal sense of ‘pertinent’ or ‘likely to influence’.”
40. Insofar as service related acceleration (or precipitation) of the veteran’s condition, as contended by the applicant, the Tribunal is mindful that section 196B(14) makes no mention of acceleration. However, aggravation and acceleration are not mutually exclusive. The test before the Tribunal is whether the disease of depression has been made worse in the sense of more grave, more grievous or more serious in its effects (see Re Repatriation Commission and Campbell (1987) 13 ALD 598 at 606).
41. The Tribunal notes that in Campbell, reference was also made to what his Honour Justice Windeyer said in Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626, where his Honour, in discussing the terms as provided for in the Workers Compensation Act 1926 (NSW), said (at 639-640):
“[T]he word ‘acceleration’ probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli.”
42. In Doolette v Repatriation Commission (1990) 21 ALD 489 it was pointed out that (at 492):
“if death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war-caused condition, the proper conclusion would be that death was attributable to war service: Re Blyth and Repatriation Commission (1982) 4 ALN N147.”
43. In applying the approach as set out above the Tribunal must weigh up the medical evidence before it.
44. The Tribunal has carefully considered the opinion of Dr James and notes that Dr James examined the veteran on several occasions after his admission to 1 Military Hospital. However, the Tribunal is mindful that Dr James’ speciality is psychiatry and as such the Tribunal has given more weight to the opinion of the neurologist, Dr Hall, in consideration of what is essentially a neurological question. The Tribunal was impressed by the thoroughness of Dr Grant’s analysis of the veteran’s medical circumstances and in so doing noted that Dr Grant has had neurological experience and that he generally supported the opinion of Dr Hall.
45. For the reasons given above the Tribunal prefers the opinion of Dr Hall and on balance, taking the approach as set out above, is satisfied that the cricket ball incident did not contribute to the veteran’s depression to a material degree, nor did the veteran’s depression arise out of nor was it attributable to the cricket ball incident. The Tribunal is also satisfied that the veteran’s depression was not due to an accident that would not have occurred but for the veteran rendering service. On the evidence before it, in particular the expert medical opinions of Dr Hall and Dr Grant, it cannot be said that the veteran’s meningioma and subsequent depression would not have been contracted but for him rendering defence service and the Tribunal finds accordingly.
46. The Tribunal is therefore satisfied that the veteran’s depression is not related to his defence service.
47. As is clear from the case law in matters such as this there must be an element of causation connecting the veteran’s death with his defence service and in this case the Tribunal is satisfied, on balance, that there is no causal connection between the veteran’s defence service and his death.
48. The Tribunal therefore affirms the decision under review.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 16 May 2003
Date of Decision 30 May 2003For the Applicant Mr J Wall, Solicitor
For the Respondent Mr M Smith, Departmental Advocate
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