Trevena and Repatriation Commission - [2001] AATA 707

DECISION AND REASONS FOR DECISION [2001] AATA 707

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/20

VETERANS' APPEALS DIVISION          )
           Re      MARGARET DAPHNE TREVENA
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date10 August 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review, and in substitution therefor decides that the death of the veteran, William Trevena, was war-caused and that the applicant, Margaret Daphne Trevena is entitled to receive a war-widow's pension with effect from 8 March 1998.

Signed
I R WAY
MEMBER
CATCHWORDS
VETERANS' AFFAIRS – war-widow's pension – whether reasonable hypothesis

Veterans' Entitlements Act 1986 ss 8, 13, 119, 120, 120A
Byrnes v Repatriation Commission (1993) 30 ALD 1
Repatriation Commission v Owens (1996) 70 ALJR 904
Winch v Repatriation Commission (1995) 55 ALD 351
Repatriation Commission v Webb (1998) 51 ALD 575
Gilbert v Repatriation Commission (1989) 86 ALR 713
East v Repatriation Commission (1987) 12 ALD 389
Repatriation Commission v Bey (1997) 149 ALR 721
Cooke v Repatriation Commission (1997) 45 ALD 205
Winch v Repatriation Commission (1999) 55 ALD 351
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

10 August 2001 Mr I R Way, Member

This is an application by Margaret Daphne Trevena for review of a decision of the Veterans' Review Board dated 6 October 1998, affirming the decision of a delegate of the Repatriation Commission dated 9 April 1998, which determined that the death of the applicant's late husband, William Trevena, is not related to his service. The veteran's death on 7 March 1998 was a result of cardiac arrhythmia and cholangio carcinoma.
The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T4). The Tribunal also received into evidence the following documents:
For the applicant

Exhibit A1 Complete service history of veteran
Exhibit A2 Statement of the applicant dated 3.9.99
Exhibit A3 Statement of the applicant dated 9.10.01
Exhibit A4 Report of Dr Goodwin dated 17.5.00
Exhibit A5 Report of Dr Goodwin dated 18.12.00
Exhibit A6 Report of Dr Goodwin dated 31.5.01

For the respondent

Exhibit R1 Clinical records – Redcliffe Hospital
Exhibit R2 Progress notes and doctors' reports
Exhibit R3 Hospital and nursing reports (1989)
Exhibit R4 Report of Dr Kurrle dated 28.11.49
Exhibit R5 Clinical notes (RGH Greenslopes) – August 1952
Exhibit R6 Report of Professor Cooke dated 19.2.01

Dr Goodwin and Professor Cooke gave oral evidence.
Under Section 13 of the Veterans' Entitlements Act 1986 (the Act), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (Section 11) may make a claim to a pension under Section 14.
The applicant is the widow of a veteran who rendered operational service as defined in Sections 5(b) and 6(a) of the Act, namely, continuous full-time service outside Australia during World War II.
The veteran rendered operational service as he served with the Australian Army during World War II from 5 June 1940 to 2 August 1945, including service in the Middle East, Greece, Crete and New Guinea.
The applicant has raised the hypothesis that the veteran's death was the result of the veteran contracting parasitic dysentery while on service which contributed to sclerosing cholangitis which in turn contributed to cholangio carcinoma, the stated cause of death.

Legislative Scheme

The question whether the death of each veteran who has rendered operational service was war-caused within Section 8 of the Act is to be decided by applying the standard of proof prescribed by Section 120 of the Act. With regard to the meaning of the expression "war-caused", the relevant part of Section 8 provides:
"War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly, the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise."
Section 120 describes the relevant standard of proof:
"Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection is affected by section 120A.
……
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:This subsection is affected by section 120B.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or defence-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."
Other relevant provisions of the Act in respect of the claim are as follows:
"119. Commission not bound by technicalities
(1)       In considering, hearing or determining, and in making a decision in relation to:
          (a)       a claim or application;
          …..
          the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."
Section 120A provides that the reasonableness of hypothesis is to be assessed by reference to the relevant Statement of Principles (SOP).
"120A. Reasonableness of hypothesis to be assessed 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 operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
Note 1:          Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2:For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(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(2) 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)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note:   See subsection (4) about the application of this subsection.
(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(2), 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."
Section 120(1) provides that the decision-maker must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the decision-maker is satisfied beyond reasonable doubt that the material before it does not suggest that Section 8 of the Act applies, may the decision-maker determine that the death of such a veteran was not war-caused.
Section 120(3) provides that the decision-maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if in the opinion of the decision-maker, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
A Statement of Principles has been determined with respect to cholangio carcinoma (Instrument No. 39 of 1995), subsequently revoked and replaced with a Statement relating to Malignant Neoplasm of the Bile Duct (Instrument No. 17 of 2000). Factor 1(b) of Instrument No. 39 and Factor 5(b) of Instrument No. 17 are identical and relevantly state that one of the factors that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting death from cholangio carcinoma with the circumstances of the veteran's service, is as follows:
"5(b)suffering from sclerosing cholangitis before the clinical onset of malignant neoplasm of the bile duct; (malignant neoplasm of the bile duct replaced the term cholangio carcinoma).
The Repatriation Medical Authority has neither determined nor declared that it does not propose to make an SOP with respect to sclerosing cholangitis.
Medical evidence
Dr Goodwin, Physician, in his written report dated 17 May 2000 (Exhibit A4) opined:
"In my opinion his death was due to cholangio-carcinoma, a malignant disease of the duct system of the liver, his terminal event most probably being a fatal pulmonary embolus as indicated above. This veteran suffered from acute dysentery during his period of war service. The cause of his dysentery was not established, but amoebic dysentery was extremely common in the Pacific area, and the presence of blood and mucus favoured a diagnosis of amoebic infection. The parasite may lie dormant for decades. It was noted by a prominent consultant physician (Dr G Kurrle) in 1949, that his liver was enlarged, and amoebic infection suspected but not proven. Sclerosing cholangitis is known to follow such infection, and ultimately be a precipitant of malignancy. SOP 34/1999 concerning malignant neoplasms of the bile duct, factor 5(b) refers to suffering from sclerosing cholangitis before the clinical onset of malignant neoplasm of the bile duct. In my opinion there is strong evidence to link his malignancy with his war service."
Professor Cooke, Pathologist, in his written report dated 19 February 2001 (Exhibit R6) opined:
"I have read the documents you submitted relating to this veteran.
Re. the causes of Sclerosing Cholangitis. Mr Trevena served in Libya, Crete, Greece and Palestine. Schistosomiasis occurs in North Africa. Amoebic dysentery also occurs in this area. He then served in Papua New Guinea. Amoebic dysentery occurs in this country but Schistosomiasis does not.
Amoebiasis – In the medical records there is no record of Amoebiasis as a possible cause of the episodes of diarrhoea and dysentery from which he suffered. In fact, even though Amoebic dysentery occurs in places like Papua New Guinea, it is a very rare cause of dysentery, being swamped by organismal-caused dysentery, mainly by the organisms Shigella, Salmonella and E. Coli. There is no record of the causative organism of Amoebic dysentery, namely Entamoeba histolytica having been identified. At one time when he returned to Australia, cysts of the parasite E. Coli were identified. This parasite does not cause disease.
If Amoebiasis is to be a cause of Sclerosing Cholangitis, it should have produced a chronic diarrhoea similar to that of chronic Ulcerative Colitis. I cannot see any record of this being so.
Re. the diagnosis of Sclerosing Cholangitis – This condition is suspected on clinical grounds if a patient has some form of chronic liver disease. The diagnosis is made by imaging the biliary system of the liver and further confirmed with a liver biopsy. Dr Andrew Hallam did perform an ERCP and the bile ducts were imaged and at least two reports were made by radiologists. There was no mention at all of the possibility of Sclerosing Cholangitis. I would have expected some mention to be made of this if it was present.
Schistosomiasis – The adult Schistosome flukes settle in the veins in the pelvic organs and discharge their eggs into the surrounding tissue and into the bloodstream. In areas where Schistosomiasis is common, the brunt of the disease occurs in the pelvic organs and eggs are found in large numbers there, particularly in the rectum, prostate and bladder. The eggs are found secondarily in the liver. When there is a heavy infestation, Periportal Fibrosis, a pathological condition similar to Sclerosing Cholangitis, occurs. There was no liver biopsy performed during life and no post mortem was performed. However, Mr Trevena did have a prostatectomy on 18/8/93. The prostate was reported as being benign. There was no mention that Schistosome ova were noticed. Schistosome ova are fairly easy to recognise in tissue sections and the pathologist who reported the prostate biopsy would have known how to identify them. The fact that no Schistosome ova were seen in the prostate is not absolute proof that they were not there, but it would be unlikely to have severe liver disease from the Schistosomes without any evidence of infestation in the prostate.
In summary, while Schistosomiasis and Amoebiasis are both possibilities that need to be considered in this case, I think it fairly unlikely that either of them would have contributed to the causation of the cholangiocarcinoma."
Dr Goodwin was also asked to consider Professor Cooke's report and commented as follows (Exhibit A6):
"I have the highest respect for the opinions of Professor Robin Cooke and interpret his remarks that Schistosomiasis and Amoebiasis were both possible diagnoses, to lend credence to my view that this Veteran developed cholangiocarcinoma with preceding development of a periportal fibrosis that developed decades after hepatic infestation with intestinal parasites, the precise nature of which had not been determined. As Professor Cooke has pointed out, the diagnosis of sclerosing cholangitis can only be suspected on clinical grounds if a patient has some form of chronic liver disease. The diagnosis can be made by confirmation with a liver biopsy, but this is not possible when the ducts are obstructed as was the case in this instance. I understand that diagnosis with ultrasound is inconsistent in identifying underlying sclerosing cholangitis.
In my opinion, it remains a reasonable hypothesis that this veteran died as a result of cholangiocarcinoma that developed as a result of parasitic intestinal infection, the precise nature of which could not be demonstrated pre-mortem and was not looked for post-mortem but was probably associated with underlying sclerosing cholangitis. I spoke with Dr Andrew Hallam who performed the investigation on this Veteran. He stated that it was impossible to perform biopsy via the hepatic ducts as they were completely obstructed, presumably by cholangio-carcinoma. The final diagnosis was presumptive, and no post-mortem was performed."

At the hearing, Dr Goodwin was given the opportunity to examine the medical documents tendered by the respondent (Exhibits R1-R5). He said that nothing he saw in these documents caused him to change his opinion. In cross-examination he was also taken to the records that showed the veteran had gastroenteritis in the Middle East in September 1941 suffering no diarrhoea, no blood/mucus in his stool and that only E. Coli was found; and his treatment for clinical dysentery suffered in New Guinea in 1943 where nothing had been found to confirm the veteran suffered amoebic dysentery. Dr Goodwin said he had arrived at his opinion based on the large amount of material before him including the evidence of the veteran's widow and his knowledge of studies of allied troops suffering dysentery in Thailand during World War II. He said that in the absence of biopsies of a post mortem, reliance had to be put on clinical examinations and clinical findings when considering the progressive malignancies suffered by the veteran. He said his opinion as expressed in his report dated 31 May 2001 (Exhibit A6) remained the same.
Professor Cooke was also given the opportunity to examine the further documentation provided at the hearing and he was also referred to the medical records showing the veteran suffered gastroenteritis in the Middle East in 1941 and dysentery in New Guinea in 1943. He said there was nothing in these documents to change his opinion. In cross-examination, Professor Cooke agreed that the hypothesis put forward by the applicant was not contrary to known scientific fact, that it was not untenable and that it was not fanciful.
Submissions
Counsel for the applicant referred the Tribunal to Byrnes v Repatriation Commission (1993) 30 ALD 1 and submitted that in light of Professor Cooke's agreement, in cross-examination, that the hypothesis put forward by the applicant was neither fanciful, tenuous or contrary to known scientific fact, the Tribunal following Byrnes would find that the hypothesis connecting the veteran's service with sclerosing cholangitis was reasonable and that the Tribunal would find that the necessary factor in the relevant SOP, namely suffering from sclerosing cholangitis before the clinical onset of cholangio carcinoma, had been met and that the applicant's claim should succeed.
It was submitted for the respondent that the veteran's history of gastroenteritis in the Middle East and dysentery in New Guinea did not point to a reasonable hypothesis connecting sclerosing cholangitis with service. It was also submitted that the reliance Dr Goodwin placed on the applicant's Statement about the veteran suffering incidents of diarrhoea had been taken out of context; that the sigmoidoscopy conducted in 1943 showed nothing to confirm amoebic dysentery; that treatment with sulphaguanidine in 1943 resulted in a return to normal bowel action in six days; that the open prostatectomy performed in 1989 did not reveal any findings relevant to the hypothesis being put forward; that the ultrasound of the veteran's liver in 1996 showed no signs of sclerosing cholangitis; that the veteran was never in Thailand; and that the Tribunal, after consideration of all the material before it, would find no evidence to support a reasonable hypothesis as contended for by the applicant.
The Tribunal was referred to the following authorities with respect to consideration of the question of whether or not an hypothesis is reasonable.

Repatriation Commission v Owens (1996) 70 ALJR 904
Winch v Repatriation Commission (1995) 55 ALD 351
Repatriation Commission v Webb (1998) 51 ALD 575
Gilbert v Repatriation Commission (1989) 86 ALR 713
East v Repatriation Commission (1987) 12 ALD 389

Consideration

The Tribunal has considered all of the authorities to which it has been referred. With regard to the approach to be taken in considering whether an hypothesis is reasonable, the Tribunal notes the comments of the Full Court of the Federal Court of Australia in Repatriation Commission v Bey (1997) 149 ALR 721. In Bey, at 730, the Full Court commented on the decision in Cooke v Repatriation Commission (1997) 45 ALD 205 as follows:
"In the passages from the judgments of Einfeld J and Lee J relied on by the primary judge their Honours concluded that the mere possibility of a connection between a disease and war service is sufficient to constitute a 'reasonable hypothesis' on the ground that any hypothesis is no more than a possibility. Accordingly, for the tribunal to say that a reasonable hypothesis is not raised by a mere possibility of a connection reflects a misconception of the task imposed by s 120(3). In our view that course of reasoning ignores the fact that the expression in question is not 'hypothesis' but 'reasonable hypothesis'. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker. The reasoning is also inconsistent with what was said by Mason CJ, Deane and McHugh JJ in Bushell (at CLR 414; ALR 34):
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
It is also inconsistent with what was said by Mason CJ, Gaudron and McHugh JJ in Byrnes (at CLR 569-570; ALR 214):
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.
Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This court restates the position established by East, Bushell and Byrnes. A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."

In light of the High Court's warning it is probably acceptable to say as the Full Federal Court did in Winch at 354:

"In our view it is difficult to see how, in practice, the consideration of the question of 'reasonableness', having regard to all of the evidence, can be considered any way other than 'positively'. Therefore the practical formulation of the step required by a tribunal in carrying out its task under s 120(3) of the VE Act whenever it has been formulated in judgments has been expressed in positive terms. However, this does not, of itself, amount to an approach which reverses the onus of proof."

The Tribunal is also mindful that in Webb, at 582, the Full Court held with respect to considering the reasonableness of an overall hypothesis:
"The proper approach is to ask, in relation to each sequential part of the hypothesis, whether the facts point to that part of the hypothesis being reasonable. If so, then any doubts as to the reasonableness of that part of the hypothesis must, for the purposes of s 120(3), be put aside, and the next part of the hypothesis considered. It is not permissible to carry over or accumulate doubts in relation to the reasonableness of one part of the hypothesis and apply those doubts to a consideration of other parts of the hypothesis or to the hypothesis as a whole."
With respect to the application of Section 120(1) and (3), the Tribunal with respect follows the approach taken in Byrnes in which the High Court, explaining the steps to be taken in applying Section 120 of the Act, said at 6:
"The position may be summarized as follows:
(1)First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis."
With regard to consideration of the application of the relevant SOP, the Tribunal notes the steps as set out by the Full Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, as follows:
"the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.…..
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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
After consideration of all the material before it, the Tribunal is satisfied that the material points to an hypothesis connecting a condition of sclerosing cholangitis in the veteran with the circumstances of his particular service; and the Tribunal is further satisfied that this hypothesis is, pursuant to Section 120(3) of the Act, a reasonable hypothesis. With respect to the next limb of the hypothesis, the Tribunal accepts that the material points to an hypothesis connecting sclerosing cholangitis to cholangio carcinoma and that Factor 5(b) of the relevant SOP is satisfied and that the hypothesis is consistent with the template to be found in the SOP.
The Tribunal is therefore satisfied that the hypothesis as contended for the applicant is reasonable and so finds. In making this finding the Tribunal is mindful that the respondent's concerns with respect to such a finding (as outlined in paragraph 22 above) were put to Dr Goodwin, who maintained the view that the causal links, as contended for the veteran, were probable. And further, on all the material before him, Professor Cooke ultimately did not think the applicant's hypothesis was untenable, fanciful or contrary to known scientific fact.
After considering all of the material before it, the Tribunal cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining the veteran's death was war-caused.
The Tribunal therefore finds that the veteran's death was war-caused.
The Tribunal sets aside the decision under review and in substitution therefor decides that the death of the veteran, William Trevena, was war-caused and that the applicant, Margaret Daphne Trevena is entitled to receive a war-widow's pension with effect from 8 March 1998.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed:         .....................................................................................
           R. Hayes, Associate
Date of Hearing  17 July 2001
Date of Decision  10 August 2001
Counsel for the Applicant        Mr D O'Gorman
Solicitor for the Applicant         Gilshenan and Luton
For the Respondent                 Mr J Kelly, Departmental Advocate