Williams and Repatriation Commission
[2001] AATA 319
•20 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 319
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/548
VETERANS' APPEALS DIVISION )
Re HAROLD SEXTON WILLIAMS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr P D Lynch, Member
Date20 April 2001
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely: THAT Harold Sexton Williams is entitled to pension for the war-caused disease of bronchiectasis as and from the 8th day of February 1998; AND THAT this matter is remitted to the Respondent, Repatriation Commission, in order that it might assess the rate of pension to be paid to the said Harold Sexton Williams for incapacity occasioned by all war-caused injuries and diseases suffered by him.
(Sgd) M D ALLEN
..............................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - whether hypothesis had been raised on the material before the Tribunal. Facts supporting the hypothesis not negatived beyond reasonable doubt, consequently Tribunal satisfied disease war-caused.
Veterans' Entitlements Act 1986 - s120 and s120A
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Cooke 90 FCR 307
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commission v Smith 15 FCR 327
REASONS FOR DECISION
20 April 2001 Senior Member M D Allen Dr P D Lynch, Member
By application made 10 April 2000 the Applicant sought review of a decision of the Respondent as affirmed by a Veterans' Review Board that the conditions of bronchiectasis, bronchial asthma and chronic bronchitis were not war-caused.
Although the Applicant's original claim was for the three conditions nominated in paragraph 1 above, at the hearing of this matter before the Tribunal the claim for bronchial asthma was withdrawn and the evidence is such that the Tribunal can be affirmatively satisfied that the Applicant does not suffer from chronic bronchitis. The only matter therefore that was required to be considered by the Tribunal was the question of whether the Applicant's bronchiectasis was war-caused.
The Applicant had operational service in the South West Pacific area in the period 1 October 1941 to 3 January 1946. The Applicant served with Field Ambulance Units on the Kokoda Trail in the Gona-Sanananda campaign and later in the Wewak Aitaipe campaign.
As the Applicant had operational service the standard of proof in this matter is that prescribed by subsections 120(1) and (3) of the Veterans' Entitlements Act 1986. Those subsections provide that the disease claimed as being war-caused is war-caused unless the Tribunal is satisfied beyond reasonable doubt there is no sufficient ground for making that determination. The Tribunal is deemed to be so satisfied if, on consideration of the whole of the material before it, there is no reasonable hypothesis linking the claimed disease with the circumstances of the particular service rendered by the Veteran.
Section 120A of the Veterans' Entitlements Act 1986 then goes on to provide that an hypothesis will not be reasonable unless it conforms with a so-called Statement of Principles determined by the Repatriation Medical Authority.
The relationship between subsections 120(1) and (3) Veterans' Entitlements Act 1986 and the Statement of Principles regime was explained by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97. The Court there said that the task of the Tribunal was:
"1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force 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 ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
As pointed out by the Full Court of the Federal Court in Repatriation Commission v Cooke 90 FCR 307 the issue of whether a disease exists is to be decided to the reasonable satisfaction of the Commission (and hence this Tribunal). As pointed out by another Full Court in Repatriation Commission v Smith 15 FCR 327, the term "reasonable satisfaction" equates to the civil standard of proof. Further, as was pointed out by Kenny J in Connors v Repatriation Commission [2000] FCA 783, following the institution of the Statement of Principles regime, an hypothesis must be supported by evidence pointing to each individual element in the Statement of Principles for the hypothesis to be reasonable.
In this matter the hypothesis contended for by the Applicant is that an undiagnosed pneumonia on service led to the condition of bronchiectasis. The Statement of Principles regarding bronchiectasis in force at the time that the Respondent made its initial decision in this matter is Instrument No 35 of 1997. That Instrument states that a factor which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting bronchiectasis with the circumstances of a person's relevant service is:
"5. …
(a) suffering from pneumonia before the clinical onset of bronchiectasis;"
There is no dispute that the Applicant does suffer from bronchiectasis. In this regard we would refer to the report of his treating respiratory physician, Dr Peiris, (see Exhibit R2 at page 5 and Document T14) and the reports of Professor Breslin and Dr Burns.
The Applicant's evidence was that following the Gona-Sanananda campaign and still posted to a Field Ambulance, he was admitted as an in-patient to the ward of the Field Ambulance suffering from high fever and delirium. He was an in-patient in the ward for some five days and was then, because of overcrowding in the wards of the unit, discharged from the medical wards to the unit lines where he lay on his bunk for about another 6 days, still suffering from a fever and some delirium. He then recovered and continued with the unit, namely the 3rd/14th Field Ambulance in the Wewak Aitaipe campaign.
The Applicant's history of this matter is confirmed by a Field Medical card which is at page 19a of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. That Field Medical Card also reveals that the diagnosis of the Applicant's condition was "pharyngitis" and also bears the notation that upon admission an examination was carried out and an entry made "chest – nil" which would seem to indicate that no abnormality was detected with respect to the Applicant's bronchial system.
In Document T14, Dr Peiris says:
"From your description of the symptoms, wherein you tell me that you were seriously ill with fever and delirium which lasted many days, my feeling would be that you are more than likely to have suffered from a pneumonia rather than a mere upper respiratory tract infection. As I have discussed with you previously, it is possible that the bronchiectasis followed on a poorly resolved pneumonia."
That hypothesis is also supported by Dr Michael Burns, Respiratory Physician, both in his reports (Exhibits A5 and A6) and in his evidence before the Tribunal.
Professor Breslin, on the other hand, considers that the Applicant's main problem is bronchial asthma and, whilst he does have a mild bronchiectasis, the records give absolutely no support for any suggestion that whilst hospitalised in New Guinea he suffered an undiagnosed pneumonia.
What the evidence tendered in this matter does achieve is the raising of an hypothesis, namely that of undiagnosed pneumonia leading to bronchiectasis. That hypothesis conforms with the template for bronchiectasis set forth in paragraph 5(a) of Instrument No 35 of 1997.
The fourth stage of the Deledio enquiry is well demonstrated in the evidence of Dr Burns. At Transcript page 19, commencing at line 31, he stated:
"Mild pneumonia doesn't necessarily have the same signs and symptoms or the same prognosis. … So if he had mild pneumonia, they may not have picked it as pneumonia because he didn't have all the signs and if he was better in 5 days, then if it was pneumonia it was mild. So I think the fact that they didn't diagnose it as pneumonia doesn't rule out pneumonia."
Given that evidence, although we are inclined to favour the evidence of Professor Breslin, we cannot be satisfied beyond reasonable doubt that the Applicant did not have pneumonia when hospitalised in New Guinea and, as the other material conforms with the Statement of Principles, a reasonable hypothesis does exist connecting the Applicant's disease of bronchiectasis with the circumstances of his service and we are not satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
The decision under review will therefore be set aside and the Tribunal will substitute its decision, namely that the Applicant's disease of bronchiectasis is a war-caused disease and that he is entitled to pension for incapacity occasioned by the said disease as and from 8 February 1998. This matter is remitted to the Respondent in order that it might assess the rate of pension to be paid for incapacity occasioned by all war-caused injuries and diseases suffered by the Applicant.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr P D Lynch, MemberSigned: Kwai-Ling Wong .....................................................................................
AssociateDate of Hearing 29 March 2001
Date of Decision 20 April 2001
Counsel for the Applicant Mr p Skinner
Solicitor for the Applicant Mr B Belling, Abbott Tout Solicitors
Advocate for the Respondent Mrs M Doggett, Department of Veterans' Affairs