Rogers and Repatriation Commission [2000] AATA 76 (8 February 2000)

Last Updated: 1 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/943

VETERANS' APPEALS DIVISION )

Re Lois ROGERS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr I Campbell, Member Assoc. Professor Maynard, Member

Date 8 February 2000

Place Melbourne

Decision The Tribunal affirms the decision under review.

(Sgnd) Joan Dwyer

Senior Member

VETERANS AFFAIRS - whether death from secondary cancer of prostate war-caused - whether death arose out of or was attributable to any eligible war service - concession as to the veteran's smoking habit being war-caused - whether material raises a reasonable hypothesis that death hastened by a terminal chest infection thus connecting it to smoking habit - decision affirmed

Cases

Bushell v Repatriation Commission (1992) 109 ALR 30 12

Repatriation Commission and Bey (1998) 47 ALD 481 12

Repatriation Commission v Cooke (1998) 52 ALD 1 5

Repatriation Commission v Deledio (1998) 49 ALD 193 12

Repatriation Commission v Law (1980) 31 ALR 140 5

Repatriation Commission v Law (1981) 36 ALR 411 5

Veterans' Entitlements Act 1986 s 120(1) and (3)

REASONS FOR DECISION

8 February 2000 Mrs Joan Dwyer, Senior Member Mr I Campbell, Member Assoc. Professor Maynard, Member

1. This is an application for review of a decision of the Repatriation Commission, made 8 August 1995 and affirmed by the Veterans' Review Board ("VRB") on 25 May 1998, which determined that the death of the applicant's husband, Mr Alfred Rogers was not war-caused.

2. Ms D Coombs of Counsel appeared on behalf of Mrs Rogers. Mr K Rudge, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing. Mrs Rogers gave evidence. Her son Mr Peter Rogers gave evidence over the telephone as he lives in Western Australia. Evidence for the applicant was also given by Dr Collins, a consultant forensic pathologist. The respondent called Professor Cade, the Director of Intensive Care at the Royal Melbourne Hospital.

3. Mr Rogers died on 30 April 1974 at the age of 66 years. The death certificate (T7, p39) shows the cause of death and duration of last illness as follows:

cerebrovascular accident - hours,

Secondary carcinoma -

Carcinoma prostate -

The issue is whether Mr Rogers' death was a war-caused death within the meaning of that term in s 8 of the Veterans' Entitlements Act 1986 ("the Act"). The only relevant paragraph of s 8 is paragraph (b). Thus the issue is whether the death of Mr  Rogers "arose out of, or was attributable to, any eligible war service rendered by" him.

4. Mr Rogers served in the Australian Army from 10 February 1942 to 3 January 1946. He served in New Guinea and the South West Pacific. Accordingly the whole of his service is operational service and the relevant standard of proof is that in ss 120(1) and (3) of the Act which provide:

120. (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.

(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.

5. Because the claim was lodged after 1 June 1994, s120A is applicable. Section 120A(3) provides that where there is a Statement of Principles (SoP) in respect of a condition, a hypothesis connecting a disease with the circumstances of any particular service is reasonable only if the SoP upholds the hypothesis.

6. When this matter was considered by the VRB the SoP relied on was that dealing with Malignant Neoplasm of the Prostate. The factor specified in the SoP as to which evidence was given was the intake of fat in Mr Rogers' diet during service and afterwards. Before this Tribunal the applicant made no submission with respect to the SoP concerning malignant neoplasm of the prostate. The applicant relied on the SoP for Chronic Airflow Limitation and Chronic Bronchitis and Emphysema, although those conditions are not mentioned in the death certificate (Instrument No 73 of 1997).

7. The applicant's statement of facts and contentions relied on the opinion of Dr Collins, who had prepared a report dated 30 November 1998 (exhibit A2) stating that in his opinion Mr Rogers did not suffer an acute cerebrovascular accident. Dr Collins noted that "histological sections of the lungs showed well developed emphysema, carnification, congestion and early bronchopneumonic change in the larger airways." He concluded:

3. It would have to be accepted, in view of the undifferentiated type of primary prostatic malignancy, that this disease process would have the potential to ultimately be fatal of its own accord. However, it could be robustly argued on sound, basic pathological principles that, in all probability, his demise was hastened by the development of a terminal chest infection, which is more likely to develop in an individual with pre-existing chronic lung disease, compared with a person who has normal lung structure.

On the basis of Dr Collins opinion the applicant's statement of facts and contentions claimed:

[I]n all probability the veteran's demise was hastened by the development of terminal chest infection which was more likely to develop in the veteran because of existing chronic lung disease (compared with a person who had normal lung structure).

8. The applicant submitted that the factor set out in paragraph 5(b) of the SoP for Chronic Bronchitis and Emphysema was satisfied. That factor reads as follows:

(b) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or

9. Mr Rudge for the respondent conceded that Mr Rogers had a war-caused increase in smoking of at least ten pack-years of cigarettes. He also conceded that the words "attributable to" in s 8(b) of the Act must be interpreted in accordance with Repatriation Commission v Law (1980) 31 ALR 140 at p151:

It is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause.

That passage was referred to and apparently approved by the High Court in Repatriation Commission v Law (1981) 36 ALR 411 at p420.

10. The issue before the Tribunal is whether there is a reasonable hypothesis that one of the causes of death was the development of a terminal chest infection as suggested by Dr Collins. Ms Coombs submitted that the evidence of Dr Collins raised a reasonable hypothesis connecting Mr Rogers' death with emphysema, via a terminal chest infection, and that the death should be held to be war-caused because of the concession as to Mr Rogers' smoking habit being war-caused.

11. There is a question whether the reasonable hypothesis standard of proof applies to the question of whether a chest infection was present at death. The Full Court of the Federal Court in Repatriation Commission v Cooke (1998) 52 ALD 1 considered the question of what standard of proof applies to the question whether or not a veteran suffers from a disease. The Full Court held that in those circumstances the question whether a disease exists is to be decided on the "reasonable satisfaction" standard of proof. The Full Court pointed out, at p4, that s 120 (1) of the Act provides that the reasonable hypothesis standard of proof applies to the question of "war-caused causation". The Full Court explained that s 120(1) speaks of a claim in respect of "the incapacity from injury or disease of a veteran; or of the death of a veteran" and requires the Commission to determine that the injury, disease or death was war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

12. The question of the standard of proof of a component of a hypothesis that the death of a veteran was war-caused was not directly before the Full Court, but it was referred to in submissions and in the reasoning of the Court. In response to a submission by Counsel for Mr Cooke the Court said at p6:

Mr Christie suggested that there would be anomalies. He gave some examples. One was that a veteran might make a claim for a depressive disorder which was disputed. If, before the hearing of that dispute, the veteran were found dead in circumstances where suicide was an open question, there would be a separate standard of proof to be applied to the veteran's claim from that which would be applied to the widow's claim. The commission or the tribunal would make its decision as to whether a depressive disorder existed, to its reasonable satisfaction. But the question whether a depressive order existed, to meet the hypothesis of death by suicide as a result of the depressive disorder as a result of war service, would be governed by a combination of s 120 (3) and (1).

In our view there are two answers to those contentions. First, the language of s 120 (1) and (3) is so clear as to not raise any doubt on the point. Second, any suggested illogicality disappears when one focuses on the task in hand. In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily available on that issue (in the main medical evidence, one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply, as s 120 (4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question. Furthermore, one should not overlook the ameliorative effects of s 120 (5) and (6) in relation to difficulties in establishing facts.

In our respectful opinion Lee J was correct in Ferriday [(1996) 42 ALD 526, 150 ALR 67] (the decision which Beazley J declined to follow in Preston [(1993) 30 ALD 79, 123 ALR 719] and which the tribunal distinguished in this matter) when hesaid at ALD 533; ALR 74:

Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under s 120 (1) are facts to be established to the reasonable satisfaction of the commission.

13. It is clear from that passage from the reasons of the Full Court, that the question whether a chest infection was present, as part of a hypothesis that Mr Rogers death was war-caused, is to be decided in accordance with s 120(1) and (3). That issue depends mainly on medical evidence, although there was evidence as to Mr Rogers' health given by his wife and son. They said that he had shown signs of shortness of breath in his last few years and had given up golf and gardening about two years before his death. Mr Peter Rogers said that he thought his father's health had deteriorated quite markedly in his 60's. He said he developed breathlessness and a persistent cough and cold and seemed to be lacking energy.

14. It is not in issue that Mr Rogers had emphysema. Both Dr Collins and Professor Cade have expressed that opinion and emphysema was shown at autopsy and confirmed by Dr Collins' examination of the post mortem histological slides. The point as to which there is an issue, is whether Mr Rogers' death was in any way attributable to that emphysema.

15. Both Mrs Rogers and Mr Peter Rogers described the incident shortly before Mr Rogers admission to hospital as a stroke. The hospital records (Ex R4 p66) say:

Recently seen at night with signs or symptoms suggestive of brain secondary, or possibly pressure.

16. Mr Peter Rogers said that when he visited his father in hospital "his breathing was laboured. He was a little bit out of it" (trans. p20). He said that when he visited his father was propped up on pillows. He believed there was an oxygen mask near the bed but he did not see his father using oxygen.

17. Professor Cade was quite clear on the cause of death. He wrote in his report of 7 April 1999 (R2 at p2):

Death occurred in a major hospital after a one-month admission. It occurred in the setting of recent neurological deterioration in a patient with known metastatic cancer, including particularly an enlarging secondary tumour in the parietal bone of the skull. The direct cause of death was shown at autopsy to be brain stem damage (i.e. coning), due to raised intracranial pressure due to encroachment on the brain of a large metastatic tumour in the skull. The primary tumour was undifferentiated carcinoma of the prostate. There was associated lung disease, with emphysema, congestion and sputum plugs.

The direct cause of death was thus unequivocally established, and both Dr Gilligan and Dr Collins are in agreement with the diagnosis made.

18. Dr Collins did not disagree with that analysis. He wrote in his report of 30 November 1998 (A2):

2. It would have to be accepted, in view of the undifferentiated type of primary prostatic malignancy, that this disease process would have the potential to ultimately be fatal of its own accord.

But, as set out in paragraph 7 above, he then went on to formulate a hypothesis as to contribution to death by a terminal chest infection:

However, it could be robustly argued on sound, basic pathological principles that, in all probability, his demise was hastened by the development of a terminal chest infection, which is more likely to develop in an individual with pre-existing chronic lung disease, compared with a person who has normal lung structure.

19. There are no entries in the detailed hospital notes (Ex R4) showing that Mr Rogers' "demise was hastened by the development of a terminal chest infection". Dr Collins addressed that fact in his second report (A3) paragraphs 2, 3 and 4:

2. I agree with Professor Cade it appears that there is no documented evidence, at least readily identifiable in the medical records, to indicate that the late veteran suffered from overt chronic obstructive airways disease producing significant clinical signs and symptoms.

However, the clinical absence of this condition in no way mitigates against the anatomical abnormalities associated with it and their ability to predispose an individual to the development of an acute chest infection.

3. The lack of documentation of symptoms referrable to the respiratory tree in the terminal admission notes does NOT necessarily mean that the late Mr Thomas [sic] was not suffering from an acute pneumonic process. Similarly, the failure to aggressively treat such a condition with antibiotic therapy may also be a reflection of a considered regime to provide only palliative care in view of the advanced prostatic disease, rather than an indication of its non-existence.

4. In summary, I am of the same opinion as Professor Cade, that the late Veteran's deteriorating metastatic disease of the prostate considerably shortened his life expectancy, but it CANNOT be realistically disputed that his death was not hastened by the presence of emphysema which predisposed him to the development of a terminal chest infection.

20. Professor Cade in his report of 7 April 1999 (R2) responded to the suggestion that Mr Rogers' death may have been hastened by an acute chest infection (R2):

iii. . . . Chest infection serious enough to cause or contribute to death would be expected to provide some clinical evidence of its presence (e.g. cough, sputum, fever, consolidation on clinical or radiological examination). It is hard to accept that a completely silent chest infection could contribute significantly to death in hospital.

iv. The lung findings at autopsy of sputum plugging and congestion are typical of those expected secondarily in patients terminally ill with any serious illness, particularly cancer or neurological disease, and thus do not imply the necessary presence of a primary lung condition.

v. The patient had a deteriorating malignant condition with brain involvement and thus with a life expectancy of only a few days at most once consciousness became impaired on 28 April.

21. In a second report of 17 September 1999 (R3) Professor Cade repeated those opinions and added:

Dr Collins and I appear to be in complete agreement on the cause of death (i.e. malignancy) and on the presence of subclinical emphysema. Where we disagree is the potential contribution of emphysema to death. Dr Collins postulates that clinical silence does not exclude a contribution to death from emphysema. Although agreeing with this view in principle, I do not believe that it can apply in the present case because of the absence of confirmatory evidence in a setting where there should be some clinical clues and because of a powerful alternative diagnosis. I therefore reaffirm my previous opinion that 'based on the available documentation of the present case, I do not believe that an hypothesis linking service -> smoking -> emphysema -> chest infection -> death can properly be regarded as plausible'.

22. Dr Collins in his evidence repeated that Mr Rogers could have developed a chest infection which could have impeded breathing and hastened his demise, but he could not refer to any facts which raised, pointed to or supported that hypothesis. In cross-examination Mr Rudge took him to a number of entries in the hospital notes (R4) none of which provided any support for the hypothesis raised by Dr Collins. The only relevant references in the notes are as follows (pp58-59):

pp58-59 Clinical History Examination Sheet

CVS [cardio vascular system] - no SOA [swelling of ankles]

no PND [paroxysmal nocturnal dyspnoea]

- sleeps on 2 pillows

RS [respiratory system] - no cough/SOB [shortness of breath]

. . .

Chest lung field clear heart S1 S2 / no extra sounds/no murmurs

p41 X-ray report 1/4/74 Chest: The heart is not enlarged. The lung fields appear clear. No abnormality is seen in the ribs.

p51 Nursing Notes

10/4/74 Chest clear, afebrile

11/4/74 afebrile chest clear - no pain

p52 12/4/74 Feels well, no chest pain/cough chest clear

p53 27/4/74 afebrile . . . Chest S1 S2; no extra sounds, no murmurs Creps Bilateral basal creps [crepitations]

23. Dr Collins agreed that those entries showed no evidence of a chest infection. He said (trans. p31):

They've certainly examined a number of this man's major systems and documented a number of conditions involving those systems, but it may well be that in this situation, where he's got, as I said before, secondary carcinoma of the prostate, that there may have been some decision not to treat any chest infection and if that were so, then it may well not be documented.

24. Although Dr Collins in his report (A2) had suggested that Mr Rogers had early bronchopneumonia, in answer to a question from the Tribunal, he said (trans. p36) he had seen no signs of bronchopneumonia on the two slides he saw. He said he had seen occasional inflammatory cells but not in the lung itself.

25. The microscopic report forming part of the post-mortem report refers to "some atelectasis and emphysema", but makes no mention of chest infection. There is nothing in the medical records to raise or point to the hypothesis that Mr Rogers' death was hastened or caused in any way by a terminal chest infection. In fact Dr Collins was not able to identify any material which raises or points to Mr Rogers having had a chest infection while in hospital prior to his death.

26. When giving evidence Dr Collins said (trans. p24):

I think all that one can say is that this man had life threatening metastatic carcinoma of the prostate, but that he did have a condition in the lungs, namely emphysema, which would render him more likely to infection and therefore it could be reasonably argued that this hastened his demise.

27. Dr Collins agreed that the pathologist's notes and final diagnosis at pp8-11 of the hospital notes do not refer to evidence of emphysema on the examination of the lungs. Dr Collins added (trans. p32):

[N]obody has suggested that there was marked emphysema with breakdown and what's called bullous formation where there are large air-filled sacs as an end result of the emphysema. What I'm saying to you is that there is evidence of breakdown of the alveoli walls which is of mild to moderate degree which therefore, depending on the pathologist, may or may not be documented in the macroscopic description.

28. Mr Rudge then asked Dr Collins (trans. pp32-33):

Would it be correct to say that given the lack of comment on emphysema here and the lack of a clinical record of symptoms of emphysema or chest infection, that one would have to conclude that if present and it was confirmed on microscopic analysis, it is so minor as to have no effect on the clinical symptoms or clinical progress of this man's disease?

Dr Collins replied (trans. p33):

No, I don't think that's a reasonable assumption at all. As I understand it, his clinical symptoms prior to at least coming to hospital, as we were talking about before, suggested shortness of breath.

Yes, but one month of close examination from the medical doctors in the hospital and reports from Mr Rogers found no respiratory symptoms or chest infection?---Well, they didn't - and I'm sorry to labour the point - but they didn't document it. It's not necessarily that they didn't find it and what I'm saying to you is that there may well have been an overall plan that they were concentrating on treating this man's acute problems of his-related to his neurological system and his cancer, rather than his underlying emphysema. Now, that's as far as I can go in that situation.

29. Dr Collins agreed to a suggestion from the Tribunal that basically what he was saying was that there was nothing on the file that pointed to Mr Rogers having had respiratory trouble in hospital, but it could not be ruled out, certainly on histological grounds.

30. There are a number of authorities as to the raising a reasonable hypothesis, as required by s 120(3) of the Act, and as to how to apply s 120(1) and (3). In Repatriation Commission v Deledio (1998) 49 ALD 193 at p206 the Full Court set out the four steps to be applied.

31. The first step is set out 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.

32. Dr Collins certainly gave evidence advancing a possible hypothesis linking Mr Rogers' death with war service by way of a contribution to or hastening of that death by reason of a chest infection. But he could not identify any material pointing to that hypothesis.

33. The joint judgment of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 109 ALR 30 contains the following passage at p34:

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. (emphasis added)

34. In Repatriation Commission and Bey (1998) 47 ALD 481, a Full Bench of the Federal Court explained that it is significant that the legislation uses the term "reasonable hypothesis" rather than simply "hypothesis". The reasons of the majority state, at p489, "While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable it must . . . be pointed to or supported and not merely left open as a possibility, by the material before the decision-maker." Their Honours reiterated what was said by Mason CJ, Deane and McHugh JJ in Bushell at ALR 34, as set out in the previous paragraph and stated at p490:

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. (emphasis added)

. . .

Whether material raises a "reasonable hypothesis" for the purposes of s 120 (3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904. For the reasons it gave, the tribunal was entitled to discard Mr Hadley's evidence. That left the evidence of Dr Mackay and Dr Hall. Neither put forward material which pointed to the hypothesis advanced by the respondent. Neither went further than to say that the suggested cause of the disease was a possibility. Since the cause of the disease is not known and they were not able to say when it was contracted, they could not put it higher than that. In our view the tribunal was entitled to conclude that in those circumstances the material did not raise a reasonable hypothesis connecting the respondent's rheumatoid arthritis with his war service.

35. We consider that the material or facts in this matter do not point to the hypothesis advanced by Dr Collins. Dr Collins did not put forward material which pointed to the hypothesis advanced on behalf of Mrs Rogers. He did not go further than to say that it was a possibility that a chest infection may have hastened death.

36. In the circumstances we have concluded that the material does not raise or point to a hypothesis under s 120(1) of the Act connecting Mr Rogers' death with the particular circumstances of his death.

37. The decision under review will be affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr I Campbell, Member and Assoc. Professor Maynard, Member

Signed: Anne O'Rourke

Associate

Date of Hearing 13 December 1999

Date of Decision 8 February 2000

Counsel for the Applicant Ms D Coombs

Solicitor for the Applicant Williams Winter & Higgs

Counsel for the Respondent Nil

Solicitor for the Respondent Nil

Departmental Advocate Mr K Rudge