Wilson and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 659
•31 August 2016
Wilson and Repatriation Commission (Veterans’ entitlements) [2016] AATA 659 (31 August 2016)
Division
VETERANS APPEALS DIVISION
File Number(s)
2014/3262
Re
Elizabeth WILSON
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr P W Taylor SC, Senior Member
Date 31 August 2016 Place Sydney
The decision under review is affirmed.
……………[sgd]……………………………
Mr P W Taylor SC, Senior Member
CATCHWORDS
VETERANS AFFAIRS – war widow's pension – operational service – whether death war- caused – aortic aneurysm – hypertension – whether reasonable hypothesis connecting death to service – statement of principles concerning aortic aneurysm – statement of principles concerning hypertension – material found not to point to a reasonable hypothesis – alternative argument – whether alcohol consumption related to operational service – found that veterans death not war caused – decision affirmed
LEGISLATION
Veterans Entitlement Act 1986 ss 5B, 6A, 13(1), 120, 180A, 196B
CASES
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35; 96 ALD 536
Deledio v Repatriation Commission (1997) 47 ALD 261
Ellis v Repatriation Commission [2014] FCA 847; (2014) 142 ALD 352
East v Repatriation Commission (1987) FCA 242; (1987) 16 FCR 517
Fenner v Repatriation Commission [2005] FCA 27; 218 ALR 122
Forrester v Repatriation Commission [2013] FCA 898
Hunter v Repatriation Commission [2010] FCA 145
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321; 65 ALD 609
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192
Repatriation Commission v Keeley (2000) 98 FCR 108
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 131 FCR 473SECONDARY MATERIALS
Statement of Principles concerning aortic aneurysm No. 9 of 2012
Statement of Principles concerning hypertension No. 63 of 2013
Statement of Principles concerning hypertension No. 11 of 2008Statement of Principles concerning hypertension No. 35 of 2003
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
31 August 2016
Mr James Wilson enlisted in the RAAF in April 1941, about 6 months after he turned 18. He saw service in New Guinea from May 1942 until late November 1943. After his return to Australia he was posted to Amberley Air Force base, in late October 1945. He remained there until his discharge in March 1946. That particular posting occurred after the September 1945 Japanese surrender, but it was before both the end of the “period of hostilities” (29 October 1945), and the end of World War II (28 April 1952), recognised in s 5B(1) & (3) of the Veteran’s Entitlements” Act 1986, (“VE Act”). Consequently, the whole of Mr Wilson’s 5 year service period was “operational service” for the purposes of the VE Act - see s 6A(1) & table items 1(a) & (c).
Mr Wilson died, at the age of 90, on Christmas Eve 2012. His certified causes of death were four longstanding conditions - abdominal aortic aneurysm, hypertension, congestive heart failure and aortic stenosis. If Mr Wilson’s death was “war caused” his surviving wife was entitled to a compensation pension: VE Act s 13(1). In May 2013 Mrs Wilson applied for such a pension.
PRINCIPLES FOR DETERMINING “WAR CAUSED”
There is no presumption that a service person’s incapacitating injury or disease was “war caused”: VE Act s 120(5). But, because Mrs Wilson’s claim postulates that her husband’s death relates to his “operational service”, it must be determined to have been “war caused” in the absence of satisfaction, beyond reasonable doubt, “that there is no sufficient ground for making that determination”: VE Act s 120(1). That satisfaction must be reached if the material relating to her claim “does not raise a reasonable hypothesis connecting (the death) with the circumstances of the particular service rendered by the person”: VE Act ss 120(3).
The Repatriation Medical Authority must determine a Statement of Principles where it considers there is sound medical-scientific evidence indicating a particular “kind of death” can be related to (amongst other things) operational service: VE Act ss 196B(2)(a), (5) & 8(a). Where a Statement of Principles relates to the possible relationship between a “kind of death” and operational service, it must set out the minimum “factors” that must exist, and those that must be related to that service, before it can be said that a reasonable connecting hypothesis has been raised: VE Act s 196B(2)(d) & (e). A factor is “related to service” if, amongst other things, it has resulted from a service occurrence, arose out of the person’s service, was materially contributed to by the person’s service, or would not have occurred but for that service: VE Act s 196B(14)(a), (b), (d) & (f). If the Repatriation Medical Authority has refused to determine a Statement of Principles in relation to a particular kind of death, or where an existing Statement precludes apparently deserving claims, the Repatriation Commission may itself make a, similarly prescriptive, determination governing the circumstances that must exist, and those that must be related to service, before a claim hypothesis can be regarded as reasonable: VE Act s 180A.
Where either a Repatriation Medical Authority’s Statement of Principles, or a Commission determination applies to a particular kind of death, a connecting hypothesis otherwise reasonably raised by the claim material can be characterised as reasonable for the purposes of the VE Act only if it is upheld by the relevant Statement of Principles or Commission determination: VE Act s 120A(3); Repatriation Commission v Deledio (1998) 83 FCR 82 at 97G. If there is neither such a Statement, nor an Authority declaration that it does not propose to make one, nor a relevant Commission determination, an hypothesis raised by the claim material will not be reasonable if it is either contrary to known scientific facts, obviously fanciful, remote or tenuous: VE Act s 120A(4); Deledio v Repatriation Commission (1997) 47 ALD 261 at 275; Ellis v Repatriation Commission [2014] FCA 847; (2014) 142 ALD 352 at [16]; East v Repatriation Commission (1987) FCA 242; (1987) 16 FCR 517; Bull v Repatriation Commission [2001] FCA 1832 at [17]-[20].
The VE Act provisions require consideration of four conceptually distinct matters in determining whether a veteran’s death was “war caused”, where the pension eligibility claim involves reliance on a circumstance “related” to a person’s operational service: Repatriation Commission v Deledio (1998) 83 FCR 82 at 97E. The first three of those matters are:-
(a) whether the claim material (ie the totality of the available information, including contentious assertions) gives rise to a reasonable hypothesis relating the person’s death to their operational service
(b) whether a Statement of Principles applies to the person’s kind of death
(c) whether the otherwise reasonable hypothesis contains any of the “factors” that an applicable Statement of Principles stipulates must be related to the claimant’s service.
The first step in the process described in paragraph 6 above necessarily involves description of the relevant “kind of death”, a factual history relating to the veteran’s service, and a reasonably hypothesised relationship between them: Fenner v Repatriation Commission [2005] FCA 27; 218 ALR 122 at [49] (“there must be some material which raises the relevant causal hypothesis”). The hypothesis must involve something more than being merely “consistent with the known facts” and must be one that is “pointed to by the facts”: East v Repatriation Commission (1987) FCA 242; (1987) 16 FCR 517 at 533; Bull v Repatriation Commission [2001] FCA 1832 at [41].
In this sense, in the first step there is “a factual element particular to the material before the decision-maker about the veteran”: Forrester v Repatriation Commission [2013] FCA 898 at [11]; Woodward v Repatriation Commission (2003) 131 FCR 473 at 493 [110]. But the particular factual element is simply as to whether any of the available material addresses facts whose existence and accuracy is “pointed to” by the available material. This enquiry can be answered affirmatively by taking into account matters that are merely asserted, assumed or inferred: Bushell v Repatriation Commission (1992) 175 CLR 408 at 414: Ellis v Repatriation Commission – [2014] FCA 847; (2014) 142 ALD 352 at [15] & [58]-[62]. This is because neither the identification of the connection hypothesis, nor the later enquiry whether it is upheld by a Statement of Principles, involves any determination about the actual (as distinct from the reasonably hypothesised) details and events related to a veteran’s service: see Bushell at 415; Deledio at 97E to 98B; Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35; 96 ALD 536 at [48].
The answer to the first question however requires the claim material to point to the relevant hypothesis with a sufficient degree of specificity about the particular hypothesis. That specificity should refer to the “essential elements” of any applicable Statement of Principles,. That is partly because of the primary requirement that the claim material must “raise a reasonable hypothesis”: see VE Act s 120(3); Bull v Repatriation Commission [2001] FCA 1832 at [40]-[42]. It is also partly because of the practical assessment involved in “testing the hypothesis” in the third step of the determination: Ellis v Repatriation Commission – [2014] FCA 847; (2014) 142 ALD 352 at [40].
The hypothesis testing in the third conceptual step does not involve a determination that the material is actually probative of the factual basis otherwise reasonably postulated in the hypothesis: see Hunter v Repatriation Commission (2010) 114 ALD 89; [2010] FCA 145 at [13]. But the material must “point to” at least one of the factors required by an applicable Statement of Principles. Unless the material satisfies the threshold criterion, the pension claim must fail: Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192 at [57].
If the material “points to” a required factor then the fourth aspect of the claim assessment arises for determination. That fourth aspect does involve a factual assessment. The required assessment is whether any of the “facts supporting the hypothesis” have been disproved, or contradicted, beyond reasonable doubt. If no supporting factual hypothesis reasonably raised by the claim material has been contradicted or disproved beyond reasonable doubt, the claim must be accepted as “war caused”: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 416; Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570; Repatriation Commission v Deledio (1998) 83 FCR 82 at 89F.
MRS WILSON’S CLAIM HYPOTHESIS
A number of matters were common ground in the review proceedings:-
(a) Mr Wilson’s relevant “kind of death” was death from abdominal aortic aneurysm
(b) sometime between December 1981 and January 1983 Mr Wilson had first been diagnosed with hypertension. (Mr Wilson’s recorded blood pressure first merited characterisation as involving hypertension on 11 November 1981. He appears to have dated the formal diagnosis to January 1983. That was when he was first treated for hypertension. Those respective dates were 25 and 27 years after the end of Mr Wilson’s service, when he was respectively 59 and 61 years of age.)
(c) For some years before his death Mr Wilson had an aortic aneurysm. (It had been diagnosed as a result of CT examinations in August 2008 and December 2012).
Mrs Wilson originally argued her claim on the hypothesis that her husband’s death was connected to his operational service because he started smoking cigarettes during his service, and had continued to smoke until about the early 1990’s. One of the factors in the Statement of Principles concerning aortic aneurysm No 9 of 2012 (“SoP 9/2012”), supports such an hypothesis. Although they could have taken a different view (given the limited information in the claim material - and the principles discussed in paragraph 7 above), the Respondent and the Veterans Review Board, both accepted that Mr Wilson’s history “pointed to” such a hypothesis, and that the hypothesis was reasonable. Nevertheless each was satisfied that Mr Wilson’s death was not war caused. The substantial basis of the Veteran’s Review Board 15 April 2014 decision was that Mr Wilson had started smoking in the period of euphoric celebration after the September 1945 Japanese surrender, but had not smoked at any earlier time during his years of service. This was despite the fact that cigarettes were readily available to servicemen. In those circumstances the VRB was satisfied that Mr Wilson’s smoking was not “related to service” (for the purpose of VE Act s 196B(14)). He had taken up smoking because of post war celebrations, rather than because of his war service.
In the present review proceedings, Mrs Wilson’s representative expressly abandoned the hypothesis linking Mr Wilson’s death to war service because of his cigarette smoking. Instead the review application pursued an alternative hypothesis relying on Mr Wilson’s history of alcohol consumption, including some evidence that he had “drunk heavily” during his years of war service (see paragraph 23 below). This hypothesis related Mr Wilson’s death to his war service because of a postulated connection between the alcohol consumption said to have begun during the war, and his civilian drinking 25 years later. That hypothesis relied on connecting his alcohol consumption to his hypertension, and the later to the aortic aneurysm that had been his relevant kind of death.
A rather less specific hypertension hypothesis linking Mr Wilson’s war service to his death had been addressed by the Commission in its 10 May 2013 decision. (The matter was not pursued in the VRB review proceedings.) The Commission had addressed the topic, without specific consideration of Mr Wilson’s alcohol consumption, by reference to two Statements of Principle:-
(a) Statement of Principles concerning hypertension No 11 of 2008 (“SoP 11/2008”) (increasing to 300 grams the weekly alcohol consumption factors in Statement of Principles concerning hypertension No 35 of 2003 (“SoP 35/2003”) - effective from 9 January 2008.
(b) Statement of Principles concerning aortic aneurysm No 9 of 2012 (“Aneurysm SoP 9/2012”) – effective from 11 January 2012.
After the Commission’s 10 May 2013 decision both SoP 35/2003 and SoP 11/2008 were revoked. They were replaced by Statement of Principles concerning hypertension No 63 of 2013 (“Hypertension SoP: 63/2013”). This change would entitle Mrs Wilson’s claim to rely alternatively on either Statement of Principle: see Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321; 65 ALD 609; at [42]–[43], [50] & [62]; Repatriation Commission v Keeley (2000) 98 FCR 108; Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283 at [19]-[29]. But that alternative entitlement has no practical significance. The current and former SoPs are immaterially different, at least in their potential application to the circumstances of the present matter.
More specifically the two factors relied on in the hypothesis, and said to be supported by relevant Statements of Principles, were as follows:-
(a) Aortic aneurysm:- that Mr Wilson’s aortic aneurysm could be related to his operational service because he had suffered from hypertension before the clinical onset of the aneurysm: see SoP 9/2012 - “factor” 6(c)
(b) Hypertension:- that Mr Wilson’s hypertension could be related to his operational service because he had consumed an average of at least 300 grams of alcohol per week “for at least the six months before the clinical onset of hypertension”, and that alcohol consumption was relevantly “related to” his operational service: see Statement of Principles concerning hypertension No 63 of 2013 (“SoP 63/2013”) - effective from 4 September 2013 - factor 6(b); and SoP 11/2008” - factor 5(b).
The parties agreement about Mr Wilson’s relevant “kind of death”, together with the Applicant’s abandonment of the smoking hypothesis, led to the review proceedings being focussed on two main contentious issues - (i) the actual level of Mr Wilson’s alcohol consumption at the time of his hypertension diagnosis and (ii) the postulated relationship between his hypertension and his operational service.
RECORDS QUANTIFYING MR WILSON’S ALCOHOL CONSUMPTION
There is little material detailing the extent of Mr Wilson’s alcohol consumption. Such material as does exist comes mainly from the clinical records of his general practitioner, Dr McConnell. Those records include (typically brief) notes of surgery consultations spanning the period from 1969 to 2012, reports of various imaging and pathology studies, and report letters from a range of medical specialists, including dermatologists, cardiologists, respiratory physicians, ophthalmologists, neurologists and rehabilitation specialists. The potentially significant material in those records is summarised in the following paragraphs.
1993 - a patient questionnaire completed by Mr Wilson. This was a single page document listing 10 questions, with five alternative multiple-choice answers, enquiring about alcohol consumption. Mr Wilson completed the document, in his own handwriting, sometime after his 71st birthday. The form is addressed “Dear Patient”, and may be a general enquiry form introduced by Mr Wilson’s general practitioner. But neither its actual purpose, nor the circumstances of Mr Wilson’s responses, was established by any other material.
The effect of Mr Wilson’s questionnaire answers was that he drank three or four standard drinks five or more times a week (ie typically at least 15 to 20 standard drinks per week). He never drank more than six standard drinks on any one occasion, and no “friend, doctor or other health worker” had ever either been concerned about his drinking or suggested that he cut it down. His drinking had never resulted in anyone being hurt. In the preceding twelve months he had never (i) found that he was unable to stop drinking, (ii) failed to do something normally expected of him, (iii) needed a drink to get himself going, (iv) felt guilt or regret after drinking or (v) been unable to remember what happened the night before.
Mr Wilson’s 1993 questionnaire responses, when read in the light of the relevant definitions in Statement of Principles No 63 of 2013, suggest that by some time in 1993 his typically weekly alcohol consumption was at least 150 to 200 grams. It might have been as high as 280 grams per week - if his answers should be interpreted as asserting that he drank four standard drinks every day. (I note that Professor Haber (to whom I refer in paragraphs 33 and 49 below) suggested that the questionnaire responses could be interpreted to give a “most likely” average weekly alcohol consumption of 350 grams. I do not accept this suggestion. Whatever subjective doubts one might have about the reliability of Mr Wilson’s responses, there was no information to contradict them and their actual details simply do not provide a factual basis for the “most likely” conclusion proffered by Professor Haber.)
19 November 1993 - cardiologist’s report. This was a report by a consultant cardiologist to Mr Wilson’s general practitioner, as a result of a referral for assessment of (apparently recently diagnosed) pulmonary hypertension. The cardiologist’s report described Mr Wilson as “essentially a fit and healthy man who leads an active lifestyle”. It went on to discuss Mr Wilson’s “general risk factors” and noted his eight year history of medicated hypertension, slightly raised cholesterol, and a previous history of smoking. The report then discussed by way of “background” Mr Wilson’s general good health. In so doing it differentiated between his respiratory and gastrointestinal systems. It described mild reflux attributed to an hiatus hernia and reported that Mr Wilson “drinks on average three cans of light beer a day”. In what must have been the result of an enquiry about his past drinking practices, the report added that Mr Wilson had only drunk heavily when he was in the war.
18 March 2004 - gastroenterologist’s report. In early 2004 Mr Wilson was referred to a gastroenterologist for assessment following several episodes of post rectal bleeding. The gastroenterologist’s 18 March 2004 report (again to Mr Wilson’s general practitioner) noted his history of medicated hypertension and cardiac arrhythmia. It also went on to record that Mr Wilson did not smoke and “drinks 40 g of alcohol daily”. That rate of consumption, although it refers to a time 20 years after the initial hypertension diagnosis in 1981 to 1983, is consistent with the range of weekly alcohol consumption suggested by Mr Wilson’s 1993 questionnaire responses - between about 150 / 200 grams and 280 grams: see paragraph 22 above.
12 November 2007 - GP consultation note. During 2006 and early 2007 the clinical notes record Mr Wilson’s increasing dyspnoea, and a sudden loss of vision in his left eye (as a result of an arterial occlusion). In April 2007 he was briefly hospitalised for neurological assessment, as a result of complaints of impaired mobility and balance. The April 2007 neurologist’s report noted his past medical history and also reported a current history that he “did not drink significant quantities of alcohol”. In September 2007 he was hospitalised again and underwent gastroscopy and colonoscopy procedures. In November 2007 there is a very brief note of a surgery consultation (not with Mr Wilson’s usual general practitioner). It records that Mr Wilson had given up drinking two years earlier, and now never drank alcohol.
These records provide some basis for concluding that Mr Wilson did drink “heavily” during his enlistment period (see paragraph 23 above). Whilst there are no details of the actual quantities to which Mr Wilson’s use of that adverb related, it is reasonable to infer that in 1993 he was contrasting his then rate of consumption with a significantly greater rate during the period of his enlistment. Consequently, his alcohol consumption in that period seems likely to have been at the 300 gram weekly average described in Hypertension SoP 63/2013 factor 6(b). On the other hand, there is no material pointing to the level of Mr Wilson’s alcohol consumption in the periods (i) after his service discharge, (ii) six months before his 1980 and 1983 hypertension diagnosis, or (iii) between that diagnosis and 1993. In both 1993 and 2004 Mr Wilson’s standard weekly consumption might have been as little as 210 grams (relying on the November 1993 cardiologist’s report) or as much as 280 grams (relying on the upper estimate in the 1993 questionnaire responses and the gastroenterologist’s March 2004 report). No doubt those consumption rates covered some of the period prior to 1993, perhaps even prior to the hypertension diagnosis. But those consumption rates are below the 300 gram weekly average described in the relevant SoP factor.
TESTIMONIAL EVIDENCE OF MR WILSON’S ALCOHOL CONSUMPTION
In September 2014 Mrs Wilson’s solicitors provided her unsigned and undated statement. It sets out her recollection that although her husband did like to drink, he would tend to have only one or two beers. She said he was never a heavy drinker. The former statement appears to be inaccurate (in the light of the 1993 and 2004 documents summarised in paragraphs 20 to 24 above). That inaccuracy precludes confidence in the reliability of the second statement. But that statement is, in the absence of any quantifying detail, not significantly informative for the purpose of these review proceedings.
Mr Wilson’s 60 year old son Stephen gave a written statement, and oral evidence. In his statement Stephen Wilson reported his grandmother having told him that his father had come back from the war changed and that he had started smoking while he was away. Stephen said he had not noticed his father drinking when he was a young boy, but only when he was a teenager (ie sometime likely to have been after about 1969). He nevertheless described his father as a very heavy drinker. He said his drinking was a big problem and that his father was an alcoholic. He recalled his father drinking beer each afternoon, and then drinking 1 to 1.5 bottles of wine at, or after, dinner. He speculated that drinking was his father’s way of coping. In his oral evidence Mr Stephen Wilson elaborated on those matters. At one stage he described his father as often so drunk that he was bouncing off walls.
DOES THE MATERIAL RAISE THE HYPOTHESISED CONNECTION
Mrs Wilson’s statement of facts and contentions, relying upon Mr Stephen Wilson’s written statement, asserted that Mr James Wilson had “started drinking on service and was drinking when he returned from service, and was still drinking at the time of the onset of hypertension…”. The purpose of the assertion was to link the hypertension to alcohol consumption, and in turn to Mr Wilson’s service, so as to match the relevant factor in Hypertension SoP: 63/2013. The difficulty with the assertion is that the material must reasonably “point to” the relevant hypothesis and contain the required degree of specificity: see paragraphs 7 to 9 above. And the relevant factor in Hypertension SoP 63/2013 requires a particular quantification of the level of Mr James Wilson’s average weekly alcohol consumption (300 grams) for a particular period (6 months) preceding his hypertension diagnosis.
It is doubtful that the available material, which I have summarised in the earlier sections of these reasons dealing with the records and testimonial evidence about Mr James Wilson’s alcohol consumption, does point to an hypothesis that has the specificity required by Hypertension SoP 63/2013. However, that enquiry has a limited fact finding component (see paragraph 8 above).
As I have pointed out (in paragraph 22 above) Mr James Wilson’s 1993 self report of his then alcohol consumption leads to an average weekly consumption range of between 150 and 280 grams a week. That material, when contrasted with Mr Wilson’s related claim that he drank “heavily” during the war years, supports the conclusion that, at least in those years, Mr Wilson likely consumed the weekly 300g of alcohol required by Hypertension SoP 63/2013. It was contended on Mrs Wilson’s behalf that this satisfied the minimum ‘six month” consumption period required by factor 6(b) in that SoP. But I do not accept that contention – for two main reasons. First, the actual description of the consumption period in factor 6(b) is “the six months before the clinical onset of hypertension”. The natural meaning of that description, given the use of the definite article, refers to the six months immediately preceding the diagnosis. Second, that natural meaning is consistent with the historical approach taken in all the previous Statements of Principle dealing with Hypertension. Since SoP 83 of 1995 the various Hypertension SoPs in force from time to time consistently required that the relevant rate of alcohol consumption was that prevailing at the time of the hypertension diagnosis. The additional stipulation, that the rate of consumption had to have been at least six months, had first been inserted in the Hypertension Statement of Principles in 2004. There it was unambiguously worded to refer to “a continuous period of at least 6 months immediately before the clinical onset of hypertension”. That unambiguous description, against the historical development of the various Hypertension SoPs, provides no warrant for, and points strongly against, ignoring the use of the definite article in Hypertension SoP 63/2013 factor 6(b) and having regard to periods of alcohol consumption more remote in time than six months before the hypertension diagnosis.
In relation to the six months before Mr James Wilson’s hypertension diagnosis, Mrs Wilson’s claim relied on the evidence of Stephen Wilson, with its description of his father as a daily drinker of up to one and half bottles of wine a day (see paragraph 28 above). (It was not disputed that such a rate of consumption would have satisfied the 300g average weekly consumption rate required by the relevant factor in Hypertension SoP 63/2013.)
However, Mr Stephen Wilson’s descriptions of his father’s drinking, to the extent of suggesting that by the early 1970’s it was a long standing serious problem, are not reflected in any other available material. There is nothing in the medical records indicating relevant concerns about the level of Mr James Wilson’s alcohol consumption. Indeed the contents of the positive comments made in the November 1993 cardiologist’s report (see paragraph 23 above) about Mr Wilson’s general health were regarded by both the medical expert witnesses – Professors O’Rourke and Haber as very surprising, if Mr Wilson had in fact been engaging in the level of chronic alcohol consumption initially described by Mr Stephen Wilson.
Furthermore, Mr Stephen Wilson’s initially claimed recollections about the extent of his father’s alcohol consumption in the early 1980’s, were significantly resiled from under cross examination. When the totality of his initial claims, and their later qualifications, is examined, his evidence provides no reliable basis from which to reach any properly informed conclusion about the extent of his father’s alcohol consumption at the relevant time.
Mr Stephen Wilson had lived at home with his parents until he married, at the age of 25. That was in 1981 - and likely some time before his father’s hypertension was diagnosed. After he married, Stephen lived near his parents for some years. In 1989 he moved to Port Macquarie, although (at least for some years) he continued to work in Sydney during the week. In 1998 he moved to Queensland. He remained there until some time in 2007. Then he moved back to Sydney and, for about 18 months, he lived with his parents.
The chronology indicated in the previous paragraphs indicate that Stephen’s memories of his father’s drinking can only relate to his teenage years. They began in early 1970’s, some 24 years after his father’s service discharge. In addition, his most definite recollection of his father’s wine drinking was linked to a time after his father took up membership of a wine society. But he was unable to say when that occurred. When he was first taken to the 1993 documents (those summarised in paragraphs 20 to 23 above), Stephen Wilson flatly contradicted them as unreliable statements about his father’s drinking. But after being asked to detail the chronology set out in paragraph 35 above, when taken back to these documents in cross examination, and to their apparent inconsistency with his own claimed recollections, he said he “did not notice Dad was drinking that much then”. When queried further about that statement, Stephen ultimately conceded that in his early years, prior to 1981, he had not really noticed the amount that his father was drinking. He said that the extent of his father’s drinking had changed over time, and that it was not until he came back from Queensland (in 2007) that he noticed its full extent. But even that explanation erodes confidence in the reliability of Stephen’s recollections. The information contained in the November 2007 consultation note suggests that Mr Wilson had stopped drinking some time in 2005, some two years before Stephen’s return to Sydney (see paragraph 25 above).
The unsatisfactory content of Mr Stephen Wilson’s evidence I have described above is exacerbated by the concessions to which I refer in paragraph 39 below. Given the unsatisfactory nature of that evidence, and the absence of any other relevantly supporting detail, I do not regard the claim material as providing even the minimal factual basis required to “point to” the hypertension hypothesis advanced on Mrs Wilson’s behalf, let alone to characterise it as a reasonable hypothesis. The requirement of a reasonable hypothesis is fulfilled only if “it is pointed to by the facts, even though not proved upon the balance of probabilities”: see Bull v Repatriation Commission [2001] FCA 1832 at [17]. In the present case the only material even suggesting that Mr James Wilson’s alcohol consumption satisfied the quantitative consumption requirements in Hypertension SoP 63/2013 factor 6(b) was that which Mr Stephen Wilson initially proffered, but from which he later resiled. In those circumstances, I do not regard it as correct to conclude that the material, taken as a whole, relevantly points to Mr James Wilson having a pre diagnosis rate of alcohol consumption that satisfies the Hypertension SoP 63/2013 factor 6(b) requirement.
WAS MR WILSON’S RELEVANT ALCOHOL CONSUMPTION RELATED TO HIS WAR SERVICE?
Although I consider the material does not reasonably raise the specific hypothesis described in Hypertension SoP 63/2013 factor 6(b), I propose to proceed on the alternative basis – against the contingency that a different view be taken elsewhere about the extent of the permissible factual enquiry, in the evaluation of claim material and in the characterisation of an hypothesis – having regard to the principles alluded to in paragraphs 7 to 9 above. On this alternative approach, Mr Stephen’s Wilson’s initial evidence is to be taken to satisfactorily point to the alcohol consumption rate requirement in Hypertension SoP 63/2013 factor 6(b). The remaining question is whether that alcohol consumption by his father in 1981 / 1983 was “related to” Mr Wilson’s operational service - as Hypertension SoP 63/2013 clause 5 requires before the hypothesis can be described as falling within the SoP and thus qualifying as a reasonable hypothesis for the purposes of VE Act s 120A.
As I have pointed out, Mr Stephen Wilson’s graphic characterisation of his father as an alcoholic and heavy drinker, is not borne out by any contemporaneous objective material in the available clinical records. Indeed it tends to be contradicted by the details his father included in his responses to the 1993 questionnaire. In addition, the speculative nature of Mr Stephen Wilson’s view that his father’s drinking was attributable to war service was rather highlighted by one obvious fact, and by two explicit concessions he made in the course of his evidence. The obvious fact was that, even at its highest, Mr Stephen Wilson’s evidence only described his father’s alcohol consumption at a time approximately 25 years after the end of his operational service. The two concessions were that (i) Mr Stephen Wilson did not know when his father had started drinking, and (ii) Mr James Wilson had never given him any reason for his drinking.
Mr James Wilson’s 1993 disclosure of “heavy drinking” during his service years (see paragraph 23 above) does provides a potentially relevant degree of association at that time. But there is no satisfactory basis for concluding that war service played any part in Mr Wilson’s alcohol consumption decades later. There is no evidence that Mr Wilson himself ever articulated such a claim. Indeed, he appears to have eschewed any such contention.
Between October 1995 and May 1996 Mr Wilson appears to have become concerned about increasing breathlessness. He saw a cardiologist in October 1995, had an echocardiogram in January 1996, saw another cardiologist in January 1996, and then saw a respiratory physician in April and May 1996. In March 1998 Mr Wilson made a claim under the VE Act for four conditions, including hypertension and pulmonary hypertension.
In his 1998 claim form Mr Wilson answered the question “why do you believe your service caused, contributed to or aggravated” the claimed disability or symptom. Mr Wilson replied “Exposure - air raids - smoking I survived 175 year raids - 75 at Port Moresby and 100 at Milne Bay where we were subjected to intense marine bombardment during the Japanese invasion. During my time in New Guinea I had many attacks of malaria and severe ear infection I started smoking at 3AD Queensland in November 1945”. He continued on, in specific answer to the question relating to his hypertension “See … above. Living conditions at very best were bad. Bad food (sometimes very little) bad climate and many times the immediate future was quite uncertain and stressful.”
As part of the investigation of this claim, in April 1998 Mr Wilson completed another questionnaire about his smoking history. He did not provide any information about his alcohol consumption, and appears never to have linked his contemporary (ie post service) drinking either to his war service or to his hypertension.
The Repatriation Commission refused Mr Wilson’s claim on 27 April 1998. The refusal was partly based on the proposition that Mr Wilson’s claim linked his hypertension to stress and smoking, and that contention did not meet any factor identified in any applicable Statement of Principles. However, the Commission’s April 1998 decision went on to record that there was “no history of psychoactive substance abuse or dependence involving alcohol or obesity. (These were references to the potentially relevant factors in the then current Statement of Principles relating to hypertension – No 83 of 1995: factors 1(b) and 1(v).)
The submission made on Mrs Wilson’s behalf was that the rejection of the hypertension claim in 1998 was explained by the terms of (what was said to be) the then current Hypertension Statement of Principles and was irrelevant to the present proceedings. I do not accept either of these submissions. The submission pointed to Statement of Principles No 25 of 1999 as the relevant SoP, and its requirement that the claimant’s alcohol consumption had to involve “dependence” or “abuse”. (In fact, at the time of the Repatriation Commission’s 27 April 1998 decision the relevant SoP was No 83 of 1995. The relevant factor in that SoP (1(b)) simply referred to a period of “psychoactive substance abuse involving daily consumption of alcohol” at the time of the hypertension diagnosis.) The submission suggested that the inclusion of the concept of alcohol “abuse” in the SoP factor description might have dissuaded Mr Wilson from attempting to associate his hypertension to his alcohol use (implicitly because he did not subjectively recognise himself as being alcohol dependent or abusive).
The submission is no more than forensic speculation. It involves a highly unlikely assumption. The assumption is that when Mr James Wilson filled out his 1998 claim form, he believed that alcohol consumption was a cause of his hypertension, and was also related to his war service, but nevertheless answered the question “why do you believe your war service caused, or contributed to” his hypertension, without reference to his alcohol consumption. The proposition underlying this unlikely assumption is that when Mr James Wilson omitted any reference to his alcohol consumption, he did so only because of a lively awareness of the requirements of the current SOP and a belief that although his alcohol consumption was relevantly related to his war service it did not involve alcohol “abuse”. The flaw in the submission, in addition to its inherently speculative character, is this: Mr Wilson’s failure to include alcohol as a relevant factor tends to indicate his contemporaneous belief that his alcohol consumption was appropriate and not relevantly related, to any extent, with his war service. And that indication is arguably strengthened by the consideration that neither Mr Wilson, nor Mrs Wilson, subsequently renewed the hypertension claim on the basis of his alcohol consumption, until the hearing of the present review proceedings. This occurred despite the fact that, from 20 August 2003 onwards (ie the introduction of SoP 35/2003) the relevant hypertension SoP factors required neither daily alcohol consumption, alcohol “abuse” nor alcohol “dependence”.
THE EXPERT EVIDENCE
As I have already noted, there was there was no evidence to show, and some evidence to contradict, that the “heavy drinking” Mr Wilson acknowledged during his war service had continued after the war and up to the time of his hypertension diagnosis. Professor O’Rourke thought that the absence of evidence of that kind was a powerful consideration in rejecting the proposition that Mr Wilson’s alcohol consumption, and hypertension, were service related.
Professor O’Rourke additionally disputed that the hypertension with which Mr Wilson was first diagnosed in 1981/1983 (at the age of at least 59) was relevantly related to war service and alcohol consumption. Professor O’Rourke thought that a hypertension diagnosis at that age was most likely attributable to aortic degeneration and stiffening as a consequence of ageing and unlikely to be relevantly attributable to alcohol consumption.
Professor Harber agreed that there was an age related condition of “essential” hypertension. Its onset was typically associated with people in the middle age ranges from 45 to 65. But although Mr James Wilson was within that range (he was aged about 59) at the time of his hypertension diagnosis, Professor Haber thought his condition could still be attributed to his war service period.
In his written report Professor Haber stated, but gave no basis for, his opinion that Mr Wilson’s death was related to his war service. In his oral evidence, in a joint session with Professor O’Rourke, Professor Haber adhered to his opinion - essentially on the basis of an assumption that Mr Wilson had started drinking during the war, and speculation that this started a practice that had just continued on into his civilian life.
The assumption that Mr Wilson started drinking during his service period is a reasonable one – given (i) Mr Wilson’s youth (aged 18.5) and (ii) the ready availability of a weekly alcohol ration to personnel serving overseas. But it is simplistic to hypothesise, and even more simplistic to conclude, that alcohol consumption 25 years after discharge, is relevantly related to war service. It is simplistic at least because moderate alcohol consumption was a ubiquitous social activity, widely both condoned and encouraged (by advertising and the availability of hotel, club and restaurant venues). In the absence of any identifiable causative link, and in the absence of any historical claim by the servicemen himself, the mere contemporaneity of service life and first use of alcohol, is in no sense either indicative or probative of a relevant relationship between war service and later alcohol consumption. The VE Act criteria for determining whether or not a matter is relevantly related to war service are that it either resulted from a service occurrence, arose out of the person’s service, was materially contributed to by the person’s service, or would not have occurred but for that service: VE Act s 196B(14)(a), (b), (d) & (f). None of these alternative criteria is satisfied, in relation to the Hypertension SoP 63/2013 alcohol consumption factor (factor 6(b) – relating to the level of alcohol consumption in the six months preceding diagnosis) by pointing to either (i) the (reasonably assumed) fact that Mr Wilson started drinking sometime during his service period, or (ii) the additional fact that he drank heavily during his service period.
This scepticism of the relevant relationship significance between Mr Wilson’s pre-diagnosis alcohol consumption in 1981, and the facts of his first use of alcohol (including heavy drinking) during his service period, was reflected in the report and evidence of Professor O’Rourke. Professor O’Rourke, like Professor Haber, was unable to identify any factor, other than that he began drinking during his service period, to relate Mr Wilson’s pre diagnosis alcohol consumption to that service. But unlike Professor Haber, and in my view, with significantly more analytical force, he concluded that the circumstances of Mr Wilson’s alcohol consumption prior to his discharge in 1946 could not be related, on any factual basis, to his pre-diagnosis alcohol consumption in 1981. I regard Professor O’Rourke’s opinion as obviously forceful, and also correct.
Both Professor O’Rourke and Professor Haber were aware of Mr Stephen Wilson’s written evidence about the extent of his father’s alcohol consumption. Professor O’Rourke was sceptical of the accuracy of that evidence – bearing in mind the absence from the medical records of any of the myriad health problems that he would have expected to have arisen during the course of such a prolonged period of alcohol abuse as Mr Stephen Wilson initially described. Professor Haber, I think, also shared some surprise along the same lines (see paragraph 33 above). But he was rather more inclined to accept at face value the general thrust of Mr Stephen Wilson’s evidence and he proceeded, as I perceived his evidence, on an understanding that Mr James Wilson had a long standing problem with alcohol, and one that had been apparent from the years immediately after he ended his military service. The difficulty is that such an understanding is really not justified by any evidence, and certainly not by that of Mr Stephen Wilson – for the reasons I gave in paragraph 39 above. In the absence of a proper justification for that understanding, there is, in my view, no basis for Professor Haber’s opinion, and no basis for concluding that Mr James Wilson’s alcohol consumption prior to his hypertension diagnosis, his hypertension, and his subsequent death from aortic aneurysm, were related to the relevant service rendered by Mr James Wilson prior to his discharge in 1946.
DECISION
Mrs Wilson’s claim fails for the alternative reasons that (i) the hypertension hypothesis argued on her behalf does not “point to” an hypothesis that is either reasonable or covered by a factor in a relevant Statement of Principles, and (ii) the pre-diagnosis alcohol consumption factor on which her hypothesis relies was not shown to be related to the period of Mr James Wilson’s relevant service.
The decision under review is affirmed.
I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member .......................[sgd].................................................
Associate
Dated 31 August 2016
Date(s) of hearing 23 February 2016 Counsel for the Applicant T Saunders Solicitors for the Applicant Kemp & Co Lawyers Advocate for the Respondent Department of Veterans' Affairs
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