Thompson and Repatriation Commission (Veterans' entitlements)

[2018] AATA 4526

Thompson and Repatriation Commission (Veterans' entitlements) [2018] AATA 4526 (6 December 2018)

Division:VETERANS' APPEALS DIVISION

File Number:          2017/2940

Re:Valma Thompson

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:6 December 2018

Place:Brisbane

The Tribunal affirms the decision under review.

.................................[Sgd].......................................

Deputy President J Sosso

CATCHWORDS

VETERANS’ AFFAIRS – claim for war widow’s pension – veteran deceased – hypothesis connecting the death of the veteran with his war service – hypertension and ischaemic heart disease – Statement of Principles does not uphold a hypothesis that the veteran’s death is related to service – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986

CASES

Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Dunlopv Repatriation Commission [2003] FCAFC 201
Woodward v Repatriation Commission [2003] FCAFC 160
Repatriation Commission v Hancock [2003] FCA 711
Collins v Repatriation Commission (2009) 177 FCR 280
Repatriation Commission v Codd [2007] FCA 877; 95 ALD 619
Willman and Repatriation Commission [2007] AATA 1480
Forrester v Repatriation Commission [2013] FCA 898
Higgins and Repatriation Commission [2013] AATA 630
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
Duff and Repatriation Commission [2017] AATA 1405; 157 ALD 596
Repatriation Commission v Tuite (1993) 39 FCR 540
Cairns and Repatriation Commission [2013] AATA 742
King v Repatriation Commission [2011] FCA 1436

SECONDARY MATERIALS

SoP no. 63 of 2013 (Hypertension)

SoP no. 1 of 2016 (Ischaemic Heart Disease)

REASONS FOR DECISION

Deputy President J Sosso

6 December 2018

INTRODUCTION

1. This is an application brought by Mrs Valma Thompson (“the Applicant”), who is the widow of Mr Colin Thompson (“the veteran”) and is seeking a war widow’s pension under the Veterans’ Entitlements Act 1986 (the Act).

2. The veteran was born in February 1937 and passed away in March 2015 aged 87 years – Exhibit 1 T6 p. 38, T7 p. 40.

3. The veteran rendered service in the Royal Australian Navy (“RAN”) from 9 July 1956 until 30 June 1960, and rendered operational service while serving on board HMAS Sydney in Malaya from 21 September 1956 until 13 October 1956. It is not contested that the veteran had 24 days of operational service in total – Exhibit 1 T6 p. 38.

4. The Applicant and the veteran first met in 1951 when they were teenagers, and were married in November 1956 – Exhibit 1T8 pp. 43, 51; T10 p. 54.

5. The veteran’s Death Certificate list his cause of death, and the duration of his last illness,  as follows – Exhibit 1 T8 p. 51:

   “1 (a) Myocardial infarction (b) Ischaemic heart disease (c) Hypertension 2. Atrial fibrillation, obesity

   1 (a) immediate (b) years (c) years 2. years”.

6. In the Applicant’s Statement of Facts and Contentions dated 12 April 2018 the following hypothesis is relied upon to link the veteran’s death with his operational service – para 8:

   (a)as a result of the veteran’s stressful operational service he developed an alcohol consumption habit;

   (b)the veteran’s alcohol consumption habit condition led to him developing hypertension;

   (c)the veteran’s hypertension led to him developing Ischaemic heart disease (“IHD”);

   (d)the veteran’s IHD was a contributory cause of his death.

7. On 20 April 2015 the Applicant submitted a claim for a War Widow’s Pension – Exhibit 1 T8 pp. 41 - 51. The Delegate of the Repatriation Commission (“the Commission”) noted that the Applicant contended “that the veteran’s death was caused by him being putting (sic) on lot of weight due to him becoming heavier drinker and eater during and after his service” – Exhibit 1 T12 p. 59.

8. Most of the Delegate’s reasoning focused on the veteran’s smoking habit. In any event the Delegate was not satisfied that the veteran’s smoking habit or obesity were causally related to his operational service.

9. The Applicant sought a review of this decision, but on 15 December 2016 the Veteran’s Review Board (“the Board”) affirmed the Delegate’s decision – Exhibit 1 T18 pp. 74 – 79. The Board was reasonably satisfied that the cause of the veteran’s death was IHD and that the veteran suffered from hypertension before the clinical onset of IHD. The Board, however, was not reasonably satisfied that the veteran had consumed the requisite amount of alcohol (at least 300 g of alcohol per week for at least the 6 months before the clinical onset of hypertension) to meet the requirements of Factor 6(b) in SoP No 63 of 2013 (Hypertension). Further, even if the veteran had satisfied the quantity requirements of Factor 6(b), the Board was of the view that there was no evidence of a connection between the veteran’s alcohol consumption and service – Exhibit 1 T18 pp. 78 – 79.

10. On 17 May 2017 the Applicant lodged an application for a review of the Board’s decision – Exhibit 1 T2 pp. 3 – 4.

    THE EVIDENCE

11. In support of her application the Applicant submitted a statement which is dated January 2018, and which was received by the Tribunal on 18 January 2018 – Exhibit 3.  Relevant portions of the statement are set out below:

    “3. I grew up in Graceville. My father had been in the Australian Army. For a period of time, the family lived at Currumbin. When I was about 14 years of age, we returned to live in Graceville.

    4. It was when I was living at Graceville that I met my husband Colin Thomson (sic) (hereafter Colin). I actually met him when I was walking down the footpath and he was riding his bike. I was talking to another girl who introduced me to Colin. He was 14 years of age at the time of our meeting…I was a year older.

    5. Colin and I would socialise with a larger group of friends during our teen years.  We would all go to the pictures or out for picnics in the Sherwood and Oxley areas or attend local dances. There would be as many as 20 to 25 teenagers in that group. This was the way that young people socialised in those days.

    6. When Collin left school, he worked for WD&HO Wills at the time that he undertook his National Service. I was working for the Commercial Bank of Australia in Queen Street Brisbane as a Clerk.

    8. We married on 10 November 1956 at the Graceville Methodist Church. Colin was 19 years of age and I was 20 years of age. Colin had already completed part of his National Service by the time of our marriage. He commenced his National Service in July 1956.

    9. After we married, I moved down to Sydney to live with his aunt and uncle at Auburn.

    10. When I first met Colin, he did not smoke on a regular basis. He might have smoked a cigarette at one of the dances that we attended but it only (sic) be one or two at the most just to be ‘one of the boys’. In a similar way, sometimes a boy would bring along a bottle of sherry and the others would have a swig from it. That was about the extent of his alcohol consumption. His cigarette and alcohol consumption habits did not change between his teen years and when he commenced his National Service in the Navy. Colin’s father was quite strict and would not have tolerated teenage drinking or smoking.

    11. When Colin served in the Navy during his National service, I did not see much of him. He told me stories of his trips to Malaysia and the Philippines, he drank and smoked heavily in company with the other sailors when they were ashore.  This was a significant change to his previous behaviour as concerns alcohol and cigarette smoking.

    12. Colin spoke to me about the pressures of his role as a Stoker below decks on HMAS Sydney.  He spoke of the oppressive heat and humidity whilst they were in tropical waters particular (sic) below decks where there was no air-conditioning. For many years afterwards, Colin would complain of how exhausted he would get from any hot and humid conditions, much more so prior to his service.

    13. He also spoke of being away from his young family. So by the time Colin completed his National Service, he returned to me weary and a regular smoker and drinker.

    14. After Colin completed his National Service, he would only drink alcohol and smoke cigarettes at the weekend when we were socialising. He did not drink or smoke during the working week at home. We simply could not have afforded the cost of heavy cigarettes and alcohol consumption. However, he was certainly smoking more frequently after he left the Navy. His alcohol consumption mirrored that of his smoking, that is, only on social occasions, he drank fairly heavily. He appeared to have acquired a taste for cigarettes and alcohol consumption whilst in the Navy. It was a very noticeable change in his behaviour.

    15. After he completed his National Service, Colin for a time worked with my uncle who had a Cash and Carry business in Inala. He then found employment with Chandlers for a few years and then worked for Radio Station 4IP for 20 years as a sales representative.

    16. When he left 4IP, he found employment as the Manager of Pine Trees Resort at Noosa, a position he held for about 3 to 4 years.

    17. During the years that Colin worked for Chandlers and 4IP as a sales representative, he would smoke a great deal and consume a significant amount of alcohol during the course of entertaining clients which was part of his job.  I notice that once Colin had a drink in his hand, he also needed to have a cigarette in the other. These habits were in stark contrast to Collin’s smoking and drinking habits prior to him joining the Navy.

    18. Colin’s position with 4IP regularly included long lunches entertaining clients.  This could occur as often as two or three times a week. It was his job to look for advertising clients and entertaining clients with long lunches and the consumption of alcohol was a regular feature of his working life. Once again, when Colin drank alcohol, he also smoked…

    20. After Noosa, we returned to live in Springwood and Colin worked for radio station 4BK as Station Manager. Colin’s position as Station Manager at 4BK also involved regular entertaining of clients at functions and lunches on at least a couple of times a week. On these occasions, Colin would consume significant amounts of alcohol and would smoke heavily. After 5 years in this position, Colin was retrenched.

    21. He then found employment as sales manager for Radio Station 106.9 where he worked for about two years. Like his previous jobs in radio, this position also involved regular drinking with clients…

    23. Collin stopped smoking after he suffered a serious heart attack aged 50.  He was in the intensive care ward at the North Shore Sydney Hospital for 14 days.  We had been on a cruise and he took sick on the second day out from Sydney.  His condition was diagnosed by the on-board Doctor. When we returned to Sydney, we had to rush him to the North Shore Hospital for emergency treatment.  This was the beginning of Colin’s heart problems. He stopped smoking at that point in time but not drinking.

    24. Colin retired at 58 years of age when he was retrenched at 4BK.  During his retirement, his alcohol consumption decreased significantly.”

12. The Applicant completed an “Alcohol Questionnaire – Dependent” which, although undated, was received by the Department of Veterans Affairs on 15 July 2015 – Exhibit 1 T10 pp. 54 – 55. The Applicant stated that the veteran drank beer, rum and port, and on average consumed four to five standard drinks. In addition the veteran drank four to five beer (tallies) and port. It is not clear from the Questionnaire if the Applicant was referring to the veteran’s daily or weekly consumption of alcohol.

13. The Applicant also produced a statement of Mr Cornelius de Waard dated 19 May 2018 – Exhibit 4. Mr de Waard joined the RAN in March 1968 and served on a number of naval vessels including HMAS Sydney. After enlisting he was trained as a Midshipman for two years and served for part of that period on HMAS Sydney. Subsequently, between August 1972 and July 1973, Mr de Waard was posted to HMAS Sydney and served on five tours to Vung Tau, South Vietnam.

14. Mr de Waard did not serve with the veteran, but was asked to provide information on the conditions on HMAS Sydney which the veteran would have experienced. Appropriately, Mr de Waard pointed out (Exhibit 4 para 11) that by the time he served on HMAS Sydney, it had been converted from an aircraft carrier to a Troop carrier. However, Mr de Waard stated that the conditions he experienced would have been similar to those experienced by the veteran. Mr de Waard provided the following information:

    “Thompson would have joined HMAS Sydney in the most junior category in a ship which at the time numbered some 1250 personnel.  He would have been assigned to his mess desk (in his case literally a very crowded space, no natural light and very poor air supply. The Sydney was never air-conditioned as she was designed for the North Atlantic as Light Fleet Carrier. I can speak from personal experience of the sweltering, stuffy, hot spaces in that ship and I served in her as an Officer.

    15. Thompson’s duties would likely have seen him in either the boiler rooms or the engine rooms of the vessel. At his level of rank, he would have been fairly ignorant of the goings on in the vessel and most of what was happening would have been passed on to him as ‘scuttle butt’ or hearsay which in itself leads to being bullied or unnecessarily afraid by sailors vastly senior to him.

    16. All engineering spaces were incredibly noisy, extremely hot where temperatures of 120F were common. Due to the fact that the vessel was ‘Worked up’ ie ready for warlike action, there would have been many emergency situations practiced as well as the bumps and thumps associated with such actions.

    17. For a very junior recruit, in what is essentially a bewildering, hostile and intensely uncomfortable environment, without the benefit of enjoying a trusty peer group and being so new to the ship, it would have been a trying experience.”

15. The Applicant’s legal representatives commissioned a report by Dr Albert Palazzo, Consultant Historian, dated 12 November 2017 and entitled “Report on the Royal Australian Navy Service of Colin James Michael Thompson” – Exhibit 2. The focus of the report was the nature of the veteran’s service while aboard HMAS Sydney and the availability of alcohol and cigarettes during that period.

16. Dr Palazzo provided the following account of the veteran’s service on HMAS Sydney in 1956 – Exhibit 2 pp. 2 – 4:

    “On 10 September 1956 Thompson joined the crew of the Sydney. At this time in its naval career the Sydney had been converted to a training ship – its squadrons of aircraft were no longer aboard. Instead, drafts of engineering sailors were posted to the ship to complete the sea-going phase of their training…Thompson was one of them.

    The ship’s destination was South-East Asian waters. During the cruise the crew enjoyed leave in the ports of Darwin, Singapore, Hong Kong and Manila. The ship arrived back at Sydney on 8 November and Thompson and the other engineering trainees returned to Penguin…

    I was unable to find any personal accounts of service on the Sydney during the period of Thompson’s service. The availability of records is greater for the ship’s service during the Vietnam War era and I was able to locate several recollections.  The consistent pattern was that the Sydney was an uncomfortable ship to serve in.  Originally built for the Royal Navy it had been designed for operations in the cold waters of the North Atlantic, not the hot and humid seas of South East Asia. Bill Eggins commented that he did not have to worry about going to hell, as he’d already been there having served on the Sydney. Temperatures of 37 to 60 degrees Celsius were common, he recalled…Barry Howard found conditions terrible – the ship was overcrowded, bloody hot and humid…. John Ingram also found the Sydney an uncomfortable ship in which to serve because of its lack of air conditioning and the masses of asbestos. He also noted that the ship continued to have a number of trainee sailors on it, just as Thompson was on his voyage… For David Highnam conditions were deplorable. The machinery spaces were painfully hot and there was no air conditioning… David Dwyer did nine voyages to Vietnam on the Sydney, an experience he did not want to repeat. The ship was hot and very uncomfortable for the crew and temperatures were often 45 to 48 degrees.  He also commented that every morning he would wake covered by a fine asbestos dust… Peter Weyling complained that the machinery spaces were ‘bloody hot’ as were the accommodation areas…”

17. As the veteran left no account of  his time whilst serving on HMAS Sydney, Dr Palazzo’s account of alcohol and tobacco consumption is based on historical material including recollections from other veterans who served in the RAN, and specifically on board HMAS Sydney, during the same era as the veteran – Exhibit 2 pp. 4 – 6:

    “The Australian Defence Force has a long history of alcohol availability, one that it continues to struggle with…The RAN in particular has a culture that one commentator described as dating ‘back to the colonial-era rum rations’…

    In 2011 the ADF published a major report into the use of alcohol within the force.  While the period under consideration was after Thompson’s period of service, the report speaks to the culture of the ADF with regards to alcohol consumption. The report contained a section specifically focusing on new recruits, which would have parallels for Thompson’s commencement of service with the RAN at the age of 19… The report notes that the young recruits had a culture of binge drinking that was reinforced by access to cheap alcohol at the base. Drinking was also a means to bond, and there was peer pressure to drink regularly and heavily within the male dominated environment. When off duty, the young military personnel also had ready access to alcohol off-base…

    The report also highlighted that while ADF personnel had access to normal civilian drinking environments, they also had access to others that were specifically military. These included dining-in nights as well as the RAN’s issuing of two cans of beer per day to every sailor.

    If drinking was an issue in the RAN after Thompson served, it was at least equally so before he enlisted. For example, a mortality study of Korean War veterans that was undertaken on behalf of the Department of Veteran Affairs concluded that there was ‘anecdotal evidence that this was a group that had greater alcohol consumption than the general population’. The report also reported that veterans spoke of excessive exposure to alcohol…

    In 1965 Gary Myors enlisted as an apprentice at the age of 15.  From the start of his naval career at HMAS Nirimba to his discharge, alcohol featured heavily. While at Nirimba, Myors complained of intense bullying by drunken senior apprentices who would maraud through the huts. He stuck it out but coped by escaping into binge drinking of his own.  In 1969 he joined the Sydney. Due to the stress levels he experienced, getting to the pub was a high priority. Because of difficulties with some of his shipmates, Myors began to drink alone, spending his pay on alcohol and cigarettes… Every posting was marked by ready access to alcohol and a culture that encouraged drinking….”

18. The Tribunal was also provided with a copy of a report written by Dr Nghi Mai, Cardiologist, dated 18 November 2011, who examined the Applicant – Exhibit 6. Dr Mai made the following observations:

    “Diagnoses

    1.    Syncope from multiple aetiologies

    a)Significant anaemia. Normal upper and lower GI endoscopy. Pending capsule endoscopy.

    b)AV nodal degeneration. Multiple pauses up to 4.7 seconds. Implantation of permanent pacemaker for chronotropic support.

    Background

    1.    Ischaemic heart disease:

    a)Inferior wall myocardial infarction 1989

    b)LVEDV 159 mils, EF 45% - 11.08.2009

    c)Asymptomatic status

    2.    Atrial fibrillation:

    a)Warfarin therapy

    b)Digoxin/Sotalol for rate control

    3.    Obesity: no history of obstructive sleep apnoea

    4.    Hypertension

    5.    Grade ¾ tricuspid regurgitation with oedema.

    Medications: Carvedilol 25 mg twice daily, Digoxin 250ug nocte, Imdur 120mg mane, Fosinopril 20mg mane, Lasix 120 mg twice daily, Spironolactone 25 mg twice daily, Warfarin variable dose”.

1. Finally, a Greenslopes Private Hospital Clinical Assessment dated 8 November 2011 recorded that the veteran stated that he was a social drinker of beer and wine – Exhibit 5 p. 1.

2. A hearing was held in Brisbane on 11 July 2018. The Applicant was represented by Mr A Harding of Counsel and the Commission by Mr M Hawker of Sparke Helmore Lawyers. Evidence was received from the Applicant and Dr Palazzo.

   THE LAW

3. Section 13 of the Act provides, inter alia, that when a veteran’s death is war-caused, the Commonwealth is liable to pay a pension to the dependants of the veteran. “Dependant” is defined by s 11(1)(c) to include the widow of a veteran.

4. Subparagraph 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have rendered eligible war service while the person was rendering operational service.

5. The death of a veteran is taken to be “war-caused” if, inter alia:

   “(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or war-caused disease, as the case may be…” – s 8(1)(f).

6. Importantly, the Act contains provisions facilitating proof of the relationship between death and war-service.

7. Subsection 120(1) of the Act provides that where a claim under Part II for a pension in respect of the death of a veteran relates to operational service by the veteran, the Commission shall determine that the death was war-caused, unless it is satisfied beyond reasonable doubt that there is not sufficient ground for making that determination.

8. Subsection 120(3) provides that in applying subsection (1) in respect of the death of a veteran, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the service rendered by the veteran.

9. Subsection 120(3), however, must be read in conjunction with s 120A. Subsection 120A(3) provides that for the purpose of s 120(3), a hypothesis connecting the death of a person to the circumstances of any service rendered by a person is reasonable only if there is in force a Statement of Principles (“SoP”) determined under s 196B(2) that upholds the hypothesis.

10. Section 196A establishes the Repatriation Medical Authority (“the Authority”). The main function of the Authority is to determine SoPs – s 196B(2).

11. If the Authority is of the view that, based on available sound medical-scientific evidence, it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out:

    ·the factors that must exist; and

    ·which of those factors must be related to the service rendered by the veteran,

    before it can be said that a reasonable hypothesis has been raised connecting the injury, disease or death of that kind with the circumstances of the service – s 196B(2).

12. A factor causing, in this case, a death, is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in s 196B(14). 

13. In understanding the role and use of SoPs it is helpful to refer to the following observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:

    “It is necessary to repeat that the SoP has no function in relation to proof or disproof (under s 120(1)) of the particular facts of a veteran’ case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994 at 1808) the SoPs were intended to ‘provide the template within which the individual’s claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.”

14. The methodology to be adopted in reaching a decision mandated by ss 8, 13 and 120 as to whether a death is “war-caused” was explained on appeal by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) as follows (97 – 98):

    “1. The Tribunal must consider all of 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 an SoP determined by the Authority under s 196B(2) or (11)..

    3. If an 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 s 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…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.”

15. The Deledio methodology is a helpful tool but is clearly not a substitute for complying with the requirements of the Act. To apply the Deledio methodology in a mechanistic manner and without proper regard to compliance with the Act would lead a decision-maker into error: Dunlopv Repatriation Commission [2003] FCAFC 201 at [33].

16. It is important to highlight this caveat as the suggestion made by the Full Court in Deledio that if there is no SoP the application must fail, has been recognised as being incorrect – Woodward v  Repatriation Commission [2003] FCAFC 160 at [55]. If there is no SoP then the question of causation falls to be determined under s 120(1) and (3) rather than s 120A – Repatriation Commission v Hancock [2003] FCA 711 at [10] (“Hancock”).

17. There are antecedent inquiries required of the Tribunal before applying the Deledio methodology which were explained by the Full Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280 (“Collins”) as follows (284 – 285):

    “It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:

    1.    whether the claimant was a veteran, or a dependant of a deceased veteran;

    2.    whether the veteran has suffered an injury or disease or has died..; and

    3.    the cause of death or the ‘kind of death’ of the veteran..

    these matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”

    CONSIDERATION

    Preliminary Issues

18. As explained in Collins it is necessary to deal with certain antecedent threshold issues.

19. It is not contested that the Applicant is the widow of the veteran who rendered operational service whilst serving on board HMAS Sydney from 21 September until 13 October 1956.

20. It is also not contested that the veteran died on 28 March 2015 and that his Death Certificate lists his cause of death as myocardial infarction, IHD, hypertension, atrial fibrillation and obesity – Exhibit 1 T8 p. 51.

21. However, the cause of death for the purposes of ss 120 and 120A requires an inquiry into the ‘kind of death’ suffered by the veteran – s 120A(4). The importance of resolving this question was explained by Selway J in Hancock as follows (at [11]):

    “The AAT, faced with the evidence of Dr Betty should have proceeded as follows:

    (a)First, the AAT was required to determine, on the balance of probabilities, whether the pre-conditions, other than causation, had been made out. None of these were in dispute.

    (b)Next, the AAT was required to determine on the balance of probabilities what ‘kind of death’ Mr Hancock had suffered. This involved the identification, on the balance of probabilities, of any and all statement of principles and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.

    (c)If one or more statements of principles were applicable, then the methodology of Deledio is applicable in relation to those ‘kinds of death’.

    (d)If only a determination under s 180A(2) is applicable, then the application must fail.

    (e)If no statement of principle and no determination is applicable at all or to a particular ‘kind of death’, then the methodology in Byrnes is applicable in relation to that.”

22. The importance of ascertaining at the outset the “kind of death met by the person” is illustrated by Repatriation Commission v Codd [2007] FCA 877; 95 ALD 619. Mr Codd was killed when a truck driven by him was struck by a train at a level crossing. The post-mortem found the cause of death was “Multiple injuries including brain damage”. His widow claimed a war widow pension after his death. The Tribunal accepted the hypothesis that Mr Codd’s drinking habits were war-caused and the effects of alcohol consumption impaired his concentration and contributed to the fatal accident. The Tribunal found that the kind of death met by Mr Codd was death by road accident.

23. Gordon J provided the following explanation of the task required of the Tribunal when ascertaining the kind of death ([35] – [36]/626):

    “[35] What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.

    [36] The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service.  In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service.  In the present case, the hypothesis was that the death was war-caused and that the cause, or at least one of the causes of death, was the veteran’s ‘service related alcohol habit[,] the effects of which [had] impaired his concentration and contributed to the fatal accident’.”

24. Gordon J then observed that the relevant SoP before the Court was itself directed to questions of medical causation. Accordingly, her Honour found that the ‘kind of death’ met by a veteran is a medical cause of death, including the contributing or underlying medical cause of death - [39]/627.

25. Her Honour found that the kind of death met by Mr Codd was not death by road accident but death from alcohol dependence or alcohol abuse, in that his death arose out of, or was attributable to, that dependence or abuse – [40]/627.  Further, her Honour specifically rejected a submission that ‘kind of death’ should be concerned with the way in which a veteran met his or her death – [41]/627.

26. It is also the case that there may be more than one medical cause for a veteran’s incapacity or death – Collins at 289 – 290 per Mansfield and Stone JJ.

27. Further, in reaching a conclusion on the ‘kind of death’ the Tribunal is not bound by terminology used in the Death Certificate. The Tribunal must consider the medical evidence presented and reach an independent conclusion based on the weight of evidence presented in the context of the specific inquiry mandated by the Act – see generally, Willman and Repatriation Commission [2007] AATA 1480 at [23].

28. Applying the law as outlined above, the veteran’s ‘kind of death’ was IHD.

29. Having dealt with the antecedent inquiries, the issue before the Tribunal is whether the veteran’s death was “war-caused”.

    Deledio Methodology – First Step

30. The first step of the Deledio methodology is aimed at ensuring the proper application of s 120(3). At this initial stage the Tribunal does not engage in a fact-finding exercise.

31. The Tribunal is only required to be reasonably satisfied that the hypothesis raised has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied upon – Forrester v Repatriation Commission [2013] FCA 898 at [14] (“Forrester”). Moreover, as Mortimer J pointed out in Forrester (at [30]), whether that material points to or supports a hypothesis can be determined by inference or assumption.

32. In this matter the hypothesis raised by the Applicant links the veteran’s death with his operational service as follows :

    (a)as a result of stressful operational service, the veteran developed an alcohol consumption habit;

    (b)this habit led to the veteran developing hypertension;

    (c)the veteran’s hypertension led to the veteran developing IHD; and

    (d)the veteran’s IHD contributed to his death.

33. It was not contested by the Respondent (Respondent’s Statement of Issues, Facts and Contentions – RSIFC para  6.15) that Step 1 is met.

    Second Step

34. It is permissible to use two SoP’s sequentially to uphold a hypothesis put forward by a veteran – Forrester at [20] – [22].

35. It necessarily follows that where an applicant seeks to connect an ultimate condition (here, IHD) through an antecedent condition (here, hypertension), then a relevant factor in the SoP for the antecedent condition must itself be met – Higgins and Repatriation Commission [2013] AATA 630 per Senior Member McDermott (as he then was) at [23].

36. It is not contested that there are two SoP’s in force that are relevant to the hypothesis raised, namely:

    (a)No 1 of 2016 – IHD; and

    (b)No 63 of 2013 – Hypertension.

    Third Step

    Introduction

37. The third step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. This requires the Tribunal to ascertain if the hypothesis “fits” or is “consistent with” the “template” in SoP No 63 of 2013 and No 1 of 2016.

38. When applying the Deledio methodology, the issue of “reasonableness” arises in both Steps 1 and 3. The Tribunal is required to assess reasonableness from both a factual and a medical/scientific prism. Assistance is obtained from the following observations of Mortimer J in Forrester (at [32]):

    “The reasonableness of a hypothesis is 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 an SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…”

39. It is not necessary for every element of a hypothesis to be supported, or pointed to, by the material before the Tribunal. Only the essential elements of the hypothesis must be addressed – Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352 at [59]/364 (“Ellis”).

40. However, it is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met. The material presented must raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran – Ellis at [63]/365.

41. While not disputing Step 1, the Commission contends that the Applicant’s claim fails at Step 3 – RSIFC at paras 6.20 – 6.21:

    “6.20 The only factor raised by the Applicant in the Ischaemic Heart Disease SOP is factor 9(1) which provides:

    Having hypertension before the clinical onset of ischaemic heart disease.

    6.21 There is insufficient evidence before the Tribunal that the Veteran had hypertension before the clinical onset of IHD. In any event, for the reasons outlined below, the Respondent contends that none of the relevant factors raised in the SOP for hypertension is met.”

42. It will be noted that, inter alia, two issues necessarily arise with the issue of hypertension. The first is the requirement that the veteran’s hypertension arose before the clinical onset of IHD. The second is that the hypertension was related to the operational service rendered by the veteran.

    Statement of Principles No 63 of 2013 - Hypertension

43. Subclause 3(b) of SoP No 63 of 2013 defines “hypertension” as:

    “persistently elevated blood pressure, diagnosed by a medical practitioner and evidenced by:

    (i)a usual blood pressure reading of greater than or equal to 140 mmHg systolic or greater than or equal to 90 mmHg diastolic, or equivalent levels using ambulatory blood pressure measurement; or

    (ii)a usual home blood pressure reading of greater than or equal to 135 mmHg systolic or greater than or equal to 85 mmHg diastolic….”

44. The Applicant’s case is predicated, firstly, on the premise that the veteran suffered hypertension before the onset of IHD and met the requirements of the relevant factor of the Hypertension SoP. In this case it is Factor 6(b):

    “consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension.”

45. Clause 6 of SoP No 63 of 2013 outlines the factors that must at a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the circumstances of a veteran’s service.

    Clinical Onset

46. The term “clinical onset” is not defined in the SoP, but it has been the subject of extensive Tribunal and Federal Court jurisprudence: Repatriation Commission v Cornelius [2002] FCA 750 at [26], Lees v Repatriation Commission (2002) 125 FCR 331 at 335 – 336. It is not disputed that clinical onset of a disease occurs either:

    (a)when the veteran becomes aware of some feature or symptom which enables a doctor to say the disease is present at that time; or

    (b)when a finding is made on investigation which is indicative to a doctor of the disease being present.

47. The Commission contends (RSIFC para 6.27) it is not open for the Tribunal to infer or assume the essential elements of the hypothesis are met in relation to ‘clinical onset’.  It is an essential element of the hypothesis that the veteran had hypertension before the clinical onset of IHD. In this regard the Commission contends (RSIFC para 6.28) that the only evidence of clinical onset of hypertension is the Death Certificate which states that the veteran had hypertension for two years prior to his death, and the report of Dr Mai of 18 November 2011 in which it is noted that the veteran suffered from hypertension – Exhibit 6 p. 1.

48. There is also a relative dearth of evidence about the veteran’s heart condition. It is clear that the veteran suffered a serious heart attack in 1987 – Exhibit 1 T9 p. 53, Exhibit 3 para 23. The longevity of the veteran’s heart condition is also confirmed by his Death Certificate which states that he had IHD for “years” – Exhibit 1 T8 p. 51.

1. The Applicant contends (Applicant’s Statement of Facts and Contentions – ASFC at para 13) that although the date of onset of hypertension is “not clear from the material it does not appear to be in dispute that this requirement is met on the facts of the case. The VRB accepted that the Veteran had hypertension before the onset of IHD.”

2. At the hearing Mr Harding submitted that the veteran had hypertension in the 1960s and 1970s. In that regard, the Applicant testified that the veteran was treated by Dr Jim Yates, a General Practitioner, who had a surgery at Spring Hill. The Applicant testified that Dr Yates had advised the veteran that he was suffering from hypertension by the time he was approximately 30 years of age. She also testified that the veteran was taking blood pressure tablets from the mid to late 1960s.

3. During cross-examination, the Applicant testified that the veteran last saw Dr Yates when he was aged in his late 40’s. The Applicant also testified that she did not accompany the veteran when he visited Dr Yates and that her husband was a private man who was not prone to discussing such matters. The veteran subsequently was treated by a Dr Douglas.

4. The Board did find that there was “material pointing to Mr Thompson having hypertension before the time of clinical onset of ischaemic heart disease” – Exhibit 1 T18 p. 77.  However, although making this finding, the Board did not explain what material it relied upon.

5. The Tribunal has before it no medical evidence as to when the veteran first started experiencing hypertension. The only medical evidence is that the veteran was suffering from hypertension from at least 2011, which is of course 24 years after the serious heart attack the veteran experienced in Sydney in 1987.

6. Further, the Tribunal has not been presented with any evidence regarding the veteran’s blood pressure readings. In short, there is no empirical evidence of whether and when the veteran’s elevated blood pressure readings met the requirements of clause 3(b)(i) of SoP No 63 of 2013.

7. In Kaluza v Repatriation Commission [2010] FCA 1244, Jacobson J made the following observation on “clinical onset” (at [93]):

   “The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.”

8. On appeal, the Full Federal Court referred to this passage with apparent approval – Kaluza v Repatriation Commission [2011] FCAFC 97 at [51].

9. During the course of the hearing, Mr Hawker drew the Tribunal’s attention to Duff and Repatriation Commission [2017] AATA 1405; 157 ALD 596 (“Duff”). That determination also involved a claim for a war widow’s pension where the deceased veteran had rendered operational service and where the ‘kind of death’ was IHD and the antecedent condition was hypertension. Unfortunately, as with this matter, there was scant medical evidence presented on the history of the veteran’s elevated blood pressure. As with this matter, there was no evidence regarding the veteran’s blood pressure readings. The Tribunal made the following observations – [79] – [81]/ 609 – 610:

   “[79] …The Applicant’s case is predicated on the veteran suffering from hypertension. The fact that the veteran was suffering from hypertension is conceded by the Respondent and confirmed by Dr Wong in his May 2002 correspondence. The Applicant relies, in particular, on the statement of Dr Wong that the veteran had a history of hypertension…

   [80] However, the Tribunal has before it zero evidence of any high blood pressure readings. There is a huge gap in the evidence between the veteran’s blood pressure reading of 5 October 1945 (when it was 130/50) to readings of May 2002 (100/70 as at 29 May 2002). The Death Certificate lists as a cause of death hypotension not hypertension. Mr Harding submits (AOS para 15 fn 6) that the low blood pressure readings should be expected as the veteran was being treated with Propranolol. The Tribunal accepts this, however, what cannot be disputed is that there is not one document before the Tribunal which discloses a blood pressure reading which is higher than average. Clause 3 of SoP 63 of 2013 defines ‘hypertension’ in a specific way. It requires that a person suffering from that ailment be diagnosed by a medical practitioner and have evidence of enumerated blood pressure readings or the administration of a particular therapy. In this matter, there is no material which clearly and unequivocally demonstrates that the threshold requirements of clause 3 have been met. While not necessarily fatal to the Applicant’s case, it highlights the shallow evidentiary base upon which the Applicant’s case is constructed.

   …It should also be observed that at various times the Applicant has invited the Tribunal to make inferences about various aspects of the veteran’s lifestyle and medical conditions. It is, of course, open to the Tribunal to draw inferences, however an inference requires a factual foundation…”

10. The difficulty faced by the Tribunal is that there is no medical evidence which gives any guidance as to when the clinical onset of hypertension occurred. The Tribunal has been invited to draw inferences based on the evidence of the Applicant, however it is impermissible for a tribunal of fact to ignore the threshold requirements of an SoP. To do so would be an error of law and to ignore the fundamental purposes of mandating an SoP regime whereby a hypothesis is required to fit the prescribed medical requirements.

11. SoP No 63 of 2013 requires the Tribunal to find from the raised facts that the veteran suffered “elevated blood pressure” which was “diagnosed by a medical practitioner” and “evidenced” by one or more of the four scenarios outlined in cl 3(b)(i) – (iv). In this matter, the only medical evidence of hypertension is for a period of time 24 years after the veteran suffered his first heart attack.

12. Mr Harding invites the Tribunal to have regard to the evidence of the Applicant and draw inferences therefrom. The Tribunal has no reason to disbelieve the Applicant. It was clear that when she gave her testimony she was an honest and forthright witness and the Tribunal formed a very favourable view of her and her credibility as a witness.

13. It is not open to the Tribunal, however, to ignore the mandatory requirements of the SoP. In that regard reference can be made to the following observations in Duff:

    “[105] However, there has to be a proper medical underpinning to meet the requirement of Step 3 so far as the SoP’s under consideration. It is fundamental in this matter that the hypertension preceded the onset of IHD. To get to that point, there must be a solid medical base that points to that state of affairs. Lay evidence can assist in reaching that state of affairs, but cannot be substitute for medical evidence.

    [106] So while the evidence need not be given by a doctor, an applicant must present, in support of their case, medical evidence that assists the Tribunal in ascertaining if the hypothesis fits, or is consistent with, the relevant SoP.

    [107] Next, Mr Harding again correctly contends that it is important not to raise the bar too high. The relevant hypothesis has to find ‘some support’ and ‘point to’ and ‘not leave open’ the hypothesis being relied upon. However, it is important not to confuse the requirements of step one and step three. Step three is aimed, by virtue of the legislation, at an investigation of the medical underpinnings of an Applicant’s case within the prism of the relevant SoP.”

14. The key issue before the Tribunal is whether there is evidence that the veteran was suffering with hypertension before the clinical onset of IHD as required by Factor 9(1) of SoP No 1 of 2016. In order that an affirmative response is evinced to that question, it is necessary to ascertain if the evidence presented points to and does not leave open the hypothesis that the veteran suffered from hypertension as defined by cl 3 of SoP No 63 of 2013 and that clinical onset of hypertension was before the clinical onset of IHD.

15. The evidence presented supports the proposition that prior to his death the veteran was suffering from hypertension. The veteran’s Death Certificate states that he was suffering from hypertension for “years”. The 11 November 2011 report of Dr Mai reports that at that time the veteran was suffering from hypertension. However, those two documents are all the medical evidence presented to the Tribunal.

16. The Applicant is not medically qualified. She did not accompany her husband when he was examined by his GP. She was not present when the relevant GP prescribed medication, and she was not present when (or if) the GP tested the veteran’s blood pressure. The Applicant was unaware of what her husband’s blood pressure readings were and her recollections of the medications he was taking 30 or 40 years ago are clouded by the mists of time.

17. In the Applicant’s Statement of Facts and Contentions it is correctly conceded (at para 18):

    “Because the date of onset of hypertension is not clear from the medical evidence…”

18. The medical evidence before the Tribunal which is said to support the Applicant’s hypothesis that the veteran was suffering from hypertension before the clinical onset of IHD is scant and inadequate, and does not allow the Tribunal to conclude that it provides some support and points to the hypothesis. Rather, the medical evidence leaves open the hypothesis because it is entirely unclear at what time the veteran began suffering from elevated blood pressure of the type that meets the requirements of cl 3(b)(i) of SoP No 63 of 2013.

19. The Tribunal therefore agrees with the submission of Mr Hawker that the essential elements of the Applicant’s hypothesis in relation to the clinical onset of hypertension have not been met.

    Alcohol Consumption

20. While the finding on clinical onset renders further consideration of the Applicant’s case unnecessary, in the event that I am in error in my finding of clinical onset of hypertension, I will proceed to the next task, which is ascertaining if Factor 6(b) of SoP No 63 of 2013 has been raised on the evidence presented connecting the veteran’s hypertension to the circumstances of his service.

21. Factor 6(b) provides for the situation where a veteran was consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension. It will be assumed that the clinical onset of hypertension was, if the Applicant’s evidence is determinative, circa 1970.

22. There are two tasks that are required of the Tribunal. The first is to ascertain if the evidence supports the proposition that the veteran was actually consuming the prescribed quantity of alcohol at the relevant time. The second only arises if the first is satisfied, and requires that the consumption of alcohol was related to the relevant service rendered by the veteran. In this matter that is his operational service – cl 5 SoP No 63 of 2013.

23. The Applicant’s submission on the first task was as follows – ASFC paras 15 – 18:

    (a)The Applicant completed an Alcohol Questionnaire dated 15 July 2015 in which she stated that the veteran drank beer, rum and port, and the quantity was said to be 4-5 beer “tallies” and port each week;

    (b)The veteran’s alcohol consumption increased after he completed his military service and whilst working for Chandler’s and 4IP;

    (c)The level of alcohol consumption meets the requisite amount; and

    (d)The Applicant’s evidence is that the veteran continued to drink after his 1987 heart attack and it is submitted that the evidentiary material points to the satisfaction of the requirements of SoP No 63 of 2013.

24. “Alcohol” is explained in cl 9 as “measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink.”

25. A quantity of 300g of alcohol per week is the equivalent, then, of 30 standard drinks or approximately 4.25 standard drinks per day. Further a “tallie” is a 750 ml bottle of beer, which if “full strength” equates to 2.8 standard drinks. A 60 ml glass of port is the equivalent of 0.9 standard drinks.

26. As the Respondent correctly contends (RSIFC at paras 6.31 – 6.35), if the Tribunal accepts that the veteran was drinking five 750 ml bottles of full strength beer each as well as a 60 ml glass of port each night, that would only amount to 20 standard drinks per week, which is considerably less than the 30 standard drinks threshold.

27. The Tribunal is also presented with a further difficulty. Two days after the death of the veteran, the Applicant had a bad accident. She fell and broke her left hip and had two operations. During her hospitalisation she suffered from pneumonia – Exhibit 1 T9 p. 52.  At the hearing the Applicant testified that she did not complete the Alcohol Questionnaire and that her son filled it out on her behalf. The Applicant testified that she was hospitalised for more than five months, was taking pain killers and could not remember the document.

28. The Applicant did not, however, disavow the Alcohol Questionnaire and the Tribunal is prepared to accept its accuracy. 

29. The Applicant testified that after the 1987 heart attack the Applicant continued drinking but not as heavily as he did previously. The Tribunal accepts that the quantity of alcohol consumed by the Applicant in his later years was most probably less than he was consuming when he was a younger man.

30. However, Factor 6(b) requires that the evidence presented points to the veteran consuming an average of 30 standard drinks each week for at least the six months before the clinical onset of hypertension.

31. If the Tribunal accepts that the clinical onset of hypertension was 2011, being the first medical record of this ailment, then the evidence presented would not support that hypothesis. At most the evidence suggests that in the Applicant’s later years he was drinking approximately 20 standard drinks each week.

32. However, if the clinical onset of hypertension was circa 1970 then the evidence of the Applicant is that the veteran was drinking heavily due to the nature of his work, which resulted, inter alia, in him becoming overweight.

33. The Tribunal found the Applicant an honest and credible witness, and accepts her testimony that the veteran was a very heavy drinker in the 1960s and through to the time of his 1987 heart attack. If, in his later years, he was still drinking 20 standard drinks each week, the Tribunal is prepared to infer that his alcohol consumption in his earlier years was much higher, and certainly greater than 30 standard drinks each week.

34. The Tribunal is therefore satisfied that the evidence before the Tribunal points to the Applicant consuming an average of at least 300g of alcohol per week for at least six months before the clinical onset of hypertension, if that onset was accepted as circa 1970.  Clearly, though, if clinical onset was in 2011, then Factor 6(b) cannot be made out.

    Relation to service

35. The next task is to determine if the evidence points to the veteran’s alcohol consumption being causally related to his service.

36. A factor causing, or contributing to, inter alia, a disease or death is related to service rendered by a veteran if one or more of the circumstances outlined in s 196B(14) are satisfied. In this matter the relevant circumstance is s 196B(14)(b):

    “it arose out of, or was attributable to, that service”.

37. Both the Applicant and Respondent drew the Tribunal’s attention to Repatriation Commission v Tuite (1993) 39 FCR 540. This much quoted case involved the issue of whether the veteran’s smoking habit, and consequent development of emphysema and gastric ulcer, arose out of, or was attributable to, his war-service. Davies J made the following observations (at 541 – 542):

    “The words of s 9(1)(b) require that there be a causal connection between the eligible war service and the disease or injury.  That is, eligible war service must contribute in a causal way to the injury or disease: see Repatriation Commission v Law (1980) 47 FLR 57 at 67-68.

    Eligible war service encompasses not only active service but all the incidents of service, such as life in camp.  Under s 9(1)(b), but not under s 9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred.  Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates’: see Marshall v Minister of Pensions [1948] KB 106 at 110; W v Minister of Pensions [1946] 2 All ER 501 at 502; Minister of Pensions v Chennell [1947] KB 250 at 256. An illustration of the point may be found in Goward v Commonwealth (1957) 97 CLR 355 where Dixon CJ, Webb and Kitto JJ held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause.  Their Honours said (at 364):

    ‘It is correct no doubt that if the camp had not been near a railway line and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.’…

    If the circumstances of the eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service, contributed causally to the injury or disease.”

38. Burchett and Einfeld JJ reached the same conclusion and made the following observations (544 – 545):

    “The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was ‘something within the applicant’s military service which has caused him to start smoking’.  It accepted his evidence that he had not smoked before, ‘and that it was the circumstances whilst he was in camp that caused him to start to smoke’. The Tribunal added: ‘Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military’. The Tribunal pointed out that the respondent ‘was in a milieu totally different to that which he had experienced before his call-up’. (It appears that he was actually a volunteer).

    We are unable to find anything suggestive of error in this reasoning. It was for the Tribunal to decide whether it accepted the evidence of the respondent. Nothing seems to have been put before it to contradict that evidence, nor was the respondent seriously challenged in cross-examination. Apart from the matters specifically mentioned in the Tribunal’s reasons, there were indeed other things adduced in evidence which tended to the same conclusion. The boredom of life in camp clearly emerges from the respondent’s account.  It is true that not everything which occurs while a man is in camp is attributable to his war service.  But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction…”

39. Both the Applicant and Respondent also referred the Tribunal to Cairns and Repatriation Commission [2013] AATA 742 (“Cairns”). The veteran’s widow claimed a widow’s pension on the basis that her husband’s death from vascular dementia was related to his World War Two service in the RAAF. The veteran was trained as a tail-gunner on B-24 aircraft and enlisted when he was only 18 years of age.  He commenced drinking after he enlisted and his alcohol habit continued throughout his life. The Applicant only met the veteran in 1959 and they married in 1960. The Applicant had no direct knowledge of the veteran’s drinking habits prior to 1959, and stated that the veteran moderated his drinking after they were married. After 1960 the veteran only drank on a weekend and in conjunction with social events. There was no evidence that the veteran abused alcohol in response to stress or to self-medicate. The Applicant stated that the veteran did not speak much of his war-time experiences and he never said that he was drinking because of his war service.

1. The Tribunal was not satisfied that there was a reasonable hypothesis connecting the circumstances of the veteran’s service with his death. The following reasons were given:

   “8. While there is evidence that is capable of establishing the veteran experienced stress during the course of his service (see, for example, the historical report of Dr A. Palazzo), and there is evidence that he began to drink more heavily at the same time, there is no evidence pointing to a causal connection between those two events. There are certainly a number of other possible explanations for the increase in alcohol consumption during service: the high temperature and humidity in the remote locations where the veteran was based, boredom, peer-group pressure and camaraderie might have played a role. Mr Harding argued we could readily infer a connection between the consumption of alcohol and the stress; he noted the Court in Bull acknowledged (at [40]) ‘People who experience stress sometimes cope by consumption of alcohol.’

   9. We agree there is often a connection between stress and circumstances on the one hand and alcohol consumption on the other….But there is nothing on the material in this case suggesting there is anything other than a temporal connection between the circumstances of Mr Cairn’s service and his pattern of alcohol consumption. In those circumstances, we are unable to identify material that points to a key part of the hypothesis.”

2. The Respondent contends (RSIFC para 6.45) that the evidence adduced suggests a temporal rather than a causal connection between the veteran’s operational service and his alcohol consumption. The following reasons were advanced:

   (a)The veteran was an occasional social drinker prior to his service;

   (b)Whilst the veteran was enlisted for 4 years, his operational service only consisted of  24 days onboard HMAS Sydney between September and October 1956;

   (c)The veteran drank heavily in company with other sailors when they were ashore;

   (d)The veteran reduced his alcohol intake after his discharge from service and only drank on weekends;

   (e)The veteran increased his alcohol consumption while working as a sales representative in the radio industry;

   (f)The veteran’s alcohol consumption decreased significantly after his retirement in 1995;

   (g)There is no evidence the veteran was suffering any particular mental health concerns related to his service to support a connection between his alcohol consumption and service; and

   (h)There is no evidence of the veteran experiencing any stressors or stressful events during his service that would raise a connection between any increase in alcohol consumption and service.

3. The Tribunal accepts that the above contentions are soundly based and are in accord with the evidence presented.

4. A number of observations can be made. First, unfortunately, the Tribunal does not have the benefit of any primary evidence from the veteran. Instead the Tribunal has relatively scant medical evidence and the written and oral evidence of the Applicant.  Whilst the Applicant presented as a thoroughly trustworthy and credible witness, it was also clear that she is a lady of advanced years and was having difficulty at times remembering events in the distant past. No doubt, her extensive hospitalisation after she broke her left hip in 2015 has had a deleterious impact on her health.

5. Second, the relevant service which allows the Applicant to rely on the “reasonable hypothesis” SoPs, is the veteran’s operation service in 1956. There must be something arising out of, or attributable to, that service that led to the veteran’s alcohol consumption habit – King v Repatriation Commission [2011] FCA 1436 at [56].

6. Third, the Tribunal has before it evidence from Dr Palazzo about the uncomfortable conditions faced by sailors on board HMAS Sydney, particularly when that ship was in tropical areas. Dr Palazzo also provided historical information about the culture on board RAN ships of that era, including bullying, drinking, smoking and skylarking whilst on shore leave. This historical account was also consistent with the personal experiences of Mr de Waard as outlined in his Statement. Further, the Applicant stated how the veteran complained about the oppressive heat and humidity on board HMAS Sydney and the heavy drinking and smoking that he engaged in – Exhibit 3 paras 11 – 12.

7. Fourth, there is no evidence before the Tribunal that the veteran experienced any particular stress whilst rendering operational service, nor is there evidence of the veteran’s drinking habits after he returned to Australia in October 1956 until the time he returned to civilian life in 1960.

8. Fifth, the Applicant stated that when the veteran completed his service with the RAN he “would only drink alcohol and smoke cigarettes at the weekend when we were socialising. He did not drink or smoke during the working week at home”- Exhibit 3 para 14. It was some years after completing his RAN service that the veteran starting working as a sales representative and only at that time, and as part of his work commitments, that he started drinking to excess. In short, the undisputed evidence suggests that when the veteran left the RAN he was more than capable of managing his alcohol intake. In fact that intake decreased considerably after 1960 and only increased when drinking was required as part of his civilian work commitments.

9. The evidence, then, discloses a pattern of drinking which rose and fell according to the temporal situations faced by the veteran. In the environment of early 1950s Brisbane, and as a young man, he had little exposure to alcohol. When the veteran was serving in the RAN the scant evidence suggests that he increased his level of alcohol consumption. However, when he returned to civilian life he again adapted to his new situation and only drank on weekends and in social situations. Years later when he began working as a sales representative he started drinking to excess as according to the Applicant his position “regularly included long lunches entertaining clients” – Exhibit 3 para 18.

10. As in Cairns, the evidence presented suggests that there was only a temporal connection between the circumstances of the veteran’s service and his pattern of alcohol consumption.

    Conclusion

11. The Tribunal therefore finds that the Applicant’s raised hypothesis is not a “reasonable” one in that it does not fit, or is inconsistent with, the template found in SoP No 63 of 2013.

    Fourth Step

12. As the Applicant fails at the third step, it is not necessary to consider the fourth step of the Deledio methodology.

    DECISION

13. The Tribunal affirms the decision under review.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

................................[Sgd]...................................

Associate

Dated: 6 December 2018

Date of hearing:	11 July 2018
Counsel for the Applicant:	Mr Anthony Harding
Solicitors for the Applicant:	Terence O'Connor Solicitors
Counsel for the Respondent:	Mr Matthew Hawker
Solicitors for the Respondent:	Sparke Helmore Lawyers