Smith and Repatriation Commission [2003] AATA 238 (14 March 2003)

Last Updated: 17 March 2003

DECISION AND REASONS FOR DECISION [2003] AATA 238

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1058

VETERANS' APPEALS DIVISION	)
	Re	VERA ROSINA SMITH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 14 March 2003

Place Sydney

Decision

The decision under review is AFFIRMED.

(Sgd) M D ALLEN

........................................

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Death from pneumonia 50 years after being gassed near Ypres - Whether material pointed to a reasonable hypothesis or just left it open - Refusal of war widow's pension affirmed.

Veterans' Entitlements Act 1986 - s120

East v Repatriation Commission 16 FCR 517

Repatriation Commission v Bey 79 FCR 364

Bull v Repatriation Commission 188 ALR 756

Repatriation Commission v Owens 70 ALJR 904

REASONS FOR DECISION

Senior Member M D Allen

1. "The old lie: Dulce et decorum est

Pro patria mori"

are the concluding lines of the powerful and evocative poem by Wilfred Owen regarding the effects of a gas attack on the Western Front in World War I.

2. It is alleged in these proceedings that the late veteran Ernest Smith also died for his country as a result of inhaling poison gas in the Ypres salient on the 22 March 1918. (Reputedly the last words he said to his wife were "the Hun has me at last").

3. The deceased veteran died on the 28 April 1968, the cause of his death being set out in the Death Certificate as:

"(I) (a) Left Ventricular Failure

(b) Myocardial ischaemic

(II) Right Lower Lobe Pneumonia"

The duration of the illnesses are set out in the said Death Certificate as:

"(I) (a) 5 days

(II) 3 days"

The hypothesis advanced on behalf of the Applicant is that the pneumonia which contributed to the veteran's death was caused or contributed to by the effects of his being gassed on 22 March 1918.

4. Subsequent to the death of the deceased his widow Ms Vera Rosina Smith claimed a war-widow's pension. Her initial claim was rejected on 18 August 1969. On 17 August 1998 the veteran's widow by her attorney again claimed to have the death of her late husband attributed to his war service.

5. Again the widow's claim was rejected and that rejection was affirmed by a Veterans' Review Board. The decision to reject the claim was affirmed by this Tribunal on 17 January 2002 and an appeal to the Federal Court resulted in a Consent Order remitting the matter to the Tribunal for re-hearing.

6. In the interim and before the matter had come before the Tribunal for the first time the veteran's widow had died on 22 September 1999. These proceedings are therefore continued for the benefit of the estate pursuant to s 126 of the Veterans' Entitlements Act 1986 ("the VEA").

7. The re-hearing came on before me at Sydney on 27 February 2003. At that hearing the Appeal Book prepared for the Federal Court Appeal was taken in as Exhibit T1. No additional evidence was called and the matter proceeded upon the material contained in the said Appeal Book. Included were the documents originally produced for the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 together with the reports and transcript of evidence of Dr Rutland, Consultant Respiratory Physician called by the Applicant, and Professor Breslin, Consultant Thoracic Physician called by the Respondent.

8. As the deceased veteran had operational service as that term is defined in ss 6A(1) VEA the standard of proof in this matter is that mandated by ss 120(1) and (3) VEA. Those subsections provide that the Tribunal shall determine that the veteran's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal is deemed to be so satisfied if, after a consideration of the whole of material before it, it is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of his war service.

9. Section 120A provides that a hypothesis shall not be a reasonable hypothesis unless it conforms to a so-called Statement of Principles issued by the Repatriation Medical Authority. In this matter no Statement of Principles regarding pneumonia has been issued by the Repatriation Medical Authority and in those circumstances ss 120A(4) makes it clear that the provisions of ss 120A do not apply to these proceedings.

10. Subsection 120(6) provides that neither party to this review bears any onus of proof.

11. There can be little doubt that the pneumonia suffered by the deceased was an operative cause of his death. No doubt, as pointed out by Professor Breslin in his evidence "most people who die die with pneumonia". However in his report of February 2000 Professor Breslin states:

"The ischaemic heart disease certainly contributed to his pneumonia. He probably would have died even without the pneumonia but the pneumonia may have contributed to the cardiac failure-induced death."

Compare the report of Dr Rutland to the Respondent dated 25 November 2000 wherein he states:

"There is very strong evidence that Mr Smith had pneumonia and I feel this contributed to his death."

Later Dr Rutland states:

"I feel that Mr Smith's pneumonia was a material cause of death."

12. The real question for consideration by me is whether there exists a reasonable hypothesis that the deceased's fatal pneumonia was caused or contributed to by his being gassed in World War I.

13. The issue is put with clarity by Dr Rutland in his report of 25 November 2000. At page two thereof he states:

"On the basis of the information available I think that the most likely cause of Mr Smith's death was his known cardiac disease with cardiac failure and atrial fibrillation being the main manifestations. The mechanism by which this probably occurred was by reduced cardiac output (a diminution in the volume of blood leaving the heart/unit time) with reduced perfusion of vital organs such as the kidney and the heart itself. Impaired perfusion of blood vessels to the gastro intestinal tract can predispose to the development of blood clots in arteries supplying blood to the intestines. Cardiac failure also results in congestion of the lungs with blood which can predispose to pneumonia.

There is very strong evidence that Mr Smith had pneumonia and I feel that this contributed to his death."

Dr Rutland then continues and states in answer to the postulated question "What caused Mr Smith's pneumonia?":

"Mr Smith's pneumonia was probably bacterial. The usual route of infection is inhalation of airborne bacteria. Older patients sometimes aspirate organisms from their own secretions or with food or water. The actual infection might have occurred at home or after admission to the hospital. The presence of cardiac failure would have predisposed Mr Smith to the development of pneumonia. Relative immobility in a sick elderly patient can predispose to the development of pneumonia in the dependent parts of the lung and I note that Mr Smith's pneumonia was in the right lower lobe.

Mr Smith had a history of respiratory problems and these could have contributed to the development of pneumonia."

14. At page 22 of the Appeal Book is a case summary of the deceased's final illness. It reads in part:

"This elderly man was known to suffer from ischaemic heart disease, and on previous admission to hospital for cholecystectomy was said to have had a cardiac arrest. Five days prior to admission he became irrational and difficult to manage being incontinent of urine and faeces. Two days prior to admission he complained of severe constant upper abdominal pain which was made worse by breathing.... His cardiac failure was treated and antibiotics were commenced, for his right lower lobe pneumonia. He continued to deteriorate and died 48 hours after admission.

FINAL DIAGNOSIS - Bronchopneumonia, Ischaemic Heart Disease with Cardiac Failure."

15. In a statement accompanying her most recent application to the Respondent the veteran's widow said:

"...It was the gassing that did the most damage however, causing him great distress in later years.

He had continual throat, lung and breathing problems where he would choke up and find it hard to breathe. He continually sucked on Hudson's Eumenthol Jubes. He always slept on the enclosed verandah with canvas blinds for protection, but stated he needed air otherwise he became choked and fought for the next breath all the time. There were nights when he had to be propped up with extra pillows as he would choke in his sleep. His comment to this was to say 'Don't worry it's only the effects of my War days'."

16. The widow's statement goes on to say that:

"Mr Childs (Specialist) admitted him immediately but within 48 hours he died. Mr Childs' comment at the time was "that gassed lungs and pneumonia go hand in glove."

Unfortunately no report has been lodged by Mr Childs who I take is a surgeon practising at Wagga Base Hospital.

17. In evidence in chief Dr Rutland considered that the symptomatology referred to by the late veteran's wife indicated a bronchial problem caused by the inhalation of gas. Dr Rutland did however state:

"Well I think it would be possible to develop symptoms months or years later, not decades."

18. In cross-examination Dr Rutland conceded that it was likely that a veteran who had been gassed and had chronic respiratory problems would have associated the two. He also stated that where a medical examination of the Applicant's records read "chest clear" this implied that whoever did the examination listened to the patient's chest and did not hear any abnormality with the stethoscope.

19. Dr Rutland was then asked question: "Will (sic) you expect the local doctor who had treated this man from the 1950s to 1969 (sic) to have noticed that he had a respiratory disease" to which he replied "yes, I would, I would expect him to be aware of that."

20. Professor Breslin in his report of February 2000 states:

"Following the period of recovery from the gassing he re-joined his battalion on 4 May 1918. If the gassing had caused permanent respiratory damage then it is highly likely, indeed I believe invariable, that he would have been evacuated out of the battlefield and never have been allowed to return. The fact that he re-joined his battalion suggests to me that he made a complete recovery from the gassing, and was left with no permanent sequelae. It is not possible that he made a recovery from the gassing, re-joined his battalion, and then subsequently months or years or decades later started to develop respiratory problems from the gassing, as this is not the sequence of events that occurs following gassing that occurred in World War I. If the gassing was sufficient to cause permanent respiratory damage, the symptoms and evidence of that damage occurred from the time of gassing and persisted and the fact that he re-joined his battalion suggests that he fully recovered from the gassing that had occurred and would have been left with no permanent sequelae.

There is no medical evidence that he had chronic respiratory symptomatology following World War I."

Professor Breslin continues:

"For the gassing to have produced permanent respiratory problems I believe the symptoms would have been present since World War I and there is no evidence that this was the case."

Professor Breslin concludes in his summary by stating inter alia:

"Indeed there is no evidence that he had chronic lung disease at the time of his admission with the terminal illness...

The pneumonia was the terminal event but was not related to his gassing. The pneumonia was due to his age and debility, possibly with some gastro-oesophageal aspiration. The ischaemic heart disease certainly contributed to his pneumonia... "

21. In evidence in chief Professor Breslin stated that in his opinion if the deceased hadn't got heart failure he would not have got pneumonia.

22. Speaking of the events at the time the deceased was wounded Professor Breslin said:

"If the patient was evacuated, go to hospital, or out of the front line, the gassing was either a bit more than mild or severe. Generally speaking if it was severe that was it for them and they didn't get back to service. So I anticipate that the gassing that occurred in Mr Smith was mild to moderate such as to cause his evacuation from the front line at the time but that based on the evidence available to me that his symptoms which would have been predominantly respiratory resolved and left him with no sequelae. After that few weeks he went back to Lewis gun work and so on..."

23. I would interpose here that the following passage occurs at page 54 of "Official history of the Australian Army Medical Services 1914 - 1918" volume III (published by the Australian War Memorial 1943), dealing with the period January 1917 to mid 1918:

In the series of Yperite cases it was found that of those who reached the Base, 60 to 70 per cent could be cured in France within 6 weeks; and except for a small number of cases all had returned to duty within 2 months."

Which is exactly what happened to the late veteran. (Note: Yperite was the technical name for mustard gas).

24. Professor Breslin was further questioned regarding events following gassing. At transcript page 35 the following passage occurs:

"Now you've said in your report that those ongoing symptoms would be ongoing from the time of the gassing?---Yes, generally speaking with a significant gassing they are evacuated and they really never get better though they improve. If the symptoms are going to be permanent and ongoing and you will usually find that they've got chronic cough, chronic shortness of breath which interferes with their life, they've got wheezes when you listen to their chest....

More significant gassing may be evacuated but it usually recovers and it usually recovers within two years, that's the natural history of this sort of reactive airwaves dysfunction which term was never thought of in World War I."

Further evidence of Professor Breslin is also relevant as he points out (transcript pp36-37):

"I think it's very enlightening...an entry on 19 September 1956 from Dr Smith LMO where he makes the comment about - chest clear. In other words, ostentation, on listening to his chest he heard no wheezes or ... which you would expect if this man had ongoing respiratory disease".

Professor Breslin referred further to the report by Dr Lewis where on 17.2.69 an entry by Dr Lewis says:

"Also has some various gastric and liver upsets."

but he makes no reference whatsoever to any respiratory disease in 1969 but that letter in 1969 was referring to the late 1950s. Professor Breslin then referred to the notes regarding the deceased colististectomy and states:

"The important bit is, in that paragraph, the last, second last and third last line: 'His post operative course' that is, after this relatively major surgery in 1965 - 'was entirely uneventful'."

and stated:

"Respiratory problems, in somebody with respiratory problems, is a major problem post operatively."

Professor Breslin then sums up the matter by stating:

"So even when he was in for his terminal illness, he was reported to be not dysneaic, thus he had never seen a doctor for his chest symptoms from World War I until his terminal illness, that I can deduce, and even when his chest was checked, it was found to be clear, he was otherwise fit, no mention was made of it by Dr Lewis. He tolerated quite a significant operative procedure without any respiratory problem at all....

All these things add up to me to indicate that he had no significant respiratory symptoms from World War I until his terminal illness that are objectively documented in the notes... and that to me is extraordinarily strong evidence against ongoing effect from the gassing 50 years later on."

25. Cross-examined Professor Breslin referred to the lack of objective evidence as to any ongoing disability. He stated:

"Yes, never saw a doctor, clear chest in the '50s, tolerated an operative procedure extremely well all strong - kept working. Didn't seem to lose any time because of his chest. Had a few colds but we all do. There is nothing objective there to suggest that he's got ongoing respiratory disease."

26. Professor Breslin also pointed out that if the deceased's gassing was so severe as to start causing permanent damage, it occurs from that time, you do not have a period of recovery. He added that "once you've got reactive airways dysfunction the variability is not within the first year or two, it's thereafter".

27. Commencing at page 129 of Exhibit T1 the Appeal Book is a copy of the War Pensions Entitlements Appeals Tribunal file prepared at the time of the Applicant's first attempt to obtain a war widow's pension. That file contains the following entries which have been referred to in evidence by Professor Breslin namely:

"19.9.56

FORM KK PENSION REVIEW EXAM DR. SMITH L.MO.

Disability - Deafness Right and Left Ears.

States is suffering from - complete deafness...

Heart regular - BP 190/100 vessels now palpable. Chest clear.

Stationary and permanent deafness.

Otherwise fit.

17.2.69

CLINICAL NOTES DR. LEWIS L.M.O.

I had treated Mr Smith since the late 1950' for hypertension. He had had complete deafness apparently since the first world war. Also he had various gastric and liver upsets and in 1967 & 1968 he spent some time in Calvary Hospital Wagga. Dr A Collins was the specialist and he could enlighten you on a more concise data concerning these illnesses.

21.3.69

CLINICAL NOTES DR. J. R . DALTON L.M.O.

Dates of first consultation and subsequent attendances:

21.10.65 Cholecystectomy. 28.10.65 Choledocho-duodenostomy....

On 28.10.65 under a general anaesthetic, I opened the abdomen and .... His post-operative course was entirely uneventful and he was discharged from hospital 14 days after operation."

28. At page 141 the Appeal Book is a copy of a letter written by the deceased to the Repatriation Commission and dated 3 May 1955 when the deceased applied for a pension for war-caused deafness. That letter sets out in detail the Applicant's history and although he refers to his deafness, the gunshot wound to his right heel and its effect upon him (and the refusal of the Repatriation Commission to grant a pension for incapacity occasioned thereby) and his sinus trouble no mention whatsoever or at all is made of any chest problems or problems arising as a result of being gassed..

29. The meaning of the term "reasonable hypothesis" was explained by the Federal Court in East v Repatriation Commission 16 FCR 517 at 532, 533. In Repatriation Commission v Bey 79 FCR 364 at 372-3 the majority decision (Northrop Sundberg, Marshall and Merkel JJ) said:

"Any doubt that the attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This Court re-states 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 at the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority."

30. The primacy of East supra was reinforced in Bull v Repatriation Commission 188 ALR 756 at 761 where the majority said:

"It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible, or tenable, or not too remote or not to tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis."

31. In Repatriation Commission v Owens 70 ALJR 904 at 904 the Hight Court emphasised that the whole of the material before the Tribunal must be examined before determining whether a reasonable hypothesis exists or not.

32. To my mind there is no doubt that a hypothesis has been raised on the material before me. In its simple form the hypothesis is that the death of the deceased was contributed to by his pneumonia which disease was in turn caused or contributed to by bronchial restriction brought about by the inhalation of a poison gas in 1918.

33. That however is not the end of the matter. To be a reasonable hypothesis the said hypothesis must be pointed to by the facts having reference to the whole of the material that is before the Tribunal.

34. Here there is direct evidence that the Applicant was medically examined in 1956 and his chest noted as "clear". His local medical officer (LMO) who had treated him since the late 1950s makes no mention in his report of any respiratory problems. In 1965 the deceased underwent a serious operation at Calvary Hospital Wagga Wagga and his post-operative cause was entirely uneventful. The significance of this was pointed out by Professor Breslin in his evidence.

35. Throughout all the documentation relating to the deceased there is no objective evidence of any respiratory problems. In a lengthy letter by him to the then Repatriation Department no mention is made of any problems arising from his being gassed although other wounds and injuries (predominantly deafness) are referred to.

36. As pointed out by Professor Breslin if the deceased was to have suffered damage to his lungs severe enough to have caused permanent damage it would have occurred forthwith. There is no evidence of this. Even Dr Ruthland says the symptoms could have developed months or years later not decades. Yet in 1956 the deceased's chest is noted as "clear".

37. Having regard to all the material before me I am satisfied that the hypothesis sought to be raised by the Applicant cannot be regarded as reasonable as the said material does not point to that hypothesis but on the contrary undermines its very foundation.

38. As the said hypothesis is not a reasonable one I am deemed to be satisfied beyond reasonable doubt that the death of the deceased veteran was not war-caused. The decision under review will therefore be AFFIRMED.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed: .......................................................................................

Associate

Date/s of Hearing 28 February 2003

Date of Decision 14 March 2003

Counsel for the Applicant Mr M Vincent

Solicitor for the Applicant Dibbs Barker Gosling

Counsel for the Respondent Miss R Henderson

Solicitor for the Respondent Australian Government Solicitor