Hook and Repatriation Commission [2003] AATA 70 (24 January 2003)

Last Updated: 24 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 70

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/875

VETERANS' APPEALS DIVISION )

Re JEAN HOOK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr I R Way, Member

Date 24 January 2003

Place Brisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd)....................

IR Way

Member

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - war widow's pension - whether death of the veteran was war-caused - death of veteran occurred following a motor vehicle accident - whether reasonable hypothesis can be established linking veteran's death with his war service

Veterans' Entitlements Act 1986 ss 5B, 6A, 8, 13, 14, 120, 196

East v Repatriation Commission (1987) 16 FCR 517

Repatriation Commission v Bey (1997) 149 ALR 721

Cooke v Repatriation Commission (1997) 45 ALD 205

REASONS FOR DECISION

24 January 2003 Mr I R Way, Member

1. This is an application by Jean Hook (the applicant) for review of a decision of the Repatriation Commission dated 8 February 2001, affirmed by the Veterans' Review Board (VRB) on 6 August 2001, that determined the death of the applicant's late husband, Frederick Hook (the veteran), was not war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 (the Act).

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and the following documentary evidence:

Report of Dr J Love dated 5 April 2002 Exhibit A1

Report of Professor Ansford dated 3 February 2002 Exhibit R1

Report of Dr J McCarthy dated 3 December 2001 Exhibit R2

Notes from original post-mortem file Exhibit R3

3. Ms M Brennan represented the applicant and Mr D McAninly appeared for the respondent. Dr Love, Dr Wilkinson and Professor Ansford gave oral evidence.

4. Under section 13 of the Act the Commonwealth is liable to pay a pension by way of compensation to the dependents of the veteran, where the death of the veteran was war-caused. A dependent of a deceased veteran, including a widow (section 11) may make a claim to a pension under section 14 of the Act.

5. The veteran served in the Australian Army during Word War [Iota][Iota] from 22 July 1940 to 4 December 1945, including service overseas.

6. The applicant is the widow of the veteran, who rendered operational service as defined in sections 5B and 6A of the Act, namely continuous full time service outside Australia during World War [Iota][Iota].

Background Facts

7. The relevant background facts in this matter are not in dispute and the Tribunal finds:

* The veteran was born on 2 August 1917.

* The veteran underwent heart surgery for replacement of a mitral valve in May 1991.

* On 28 March 2000 at 0630 hours, the veteran was struck by a rigid truck, travelling at 60 kilometres per hour, while he, as a pedestrian, was crossing a road near his home.

* At the time of the accident the applicant's war-caused accepted disabilities were:

* Solar dermatosis with malignant change;

* Mitral valve prolapse with regurgitation and sub acute bacterial endocarditis;

* Loss of teeth associated with periodontitis;

* Bilateral sensori-neural hearing loss;

* Bilateral tinnitus;

* Malignant melanoma of the skin and back.

And his non-accepted conditions were:

* Cataracts;

* Tonsillar remnants with recurrent tonsillitis;

* Death.

* Because of his accepted heart condition the veteran was taking Warfarin, a prescribed anti-coagulant medicine, prior to and at the time of his accident.

* The Queensland Ambulance Service (QAS) attended the veteran at the scene of the accident.

* The QAS took the veteran to the Prince Charles Hospital where he arrived at 0730 hours.

* The Prince Charles Hospital failed to resuscitate the veteran and recorded the time of the veteran's death as 0809 hours on 28 March 2000.

The Applicant's Hypothesis

8. The hypothesis put forward by the applicant is as follows:

* The veteran suffered from war-caused mitral valve prolapse.

* As part of the necessary treatment of this condition the veteran was taking Warfarin, an anti-coagulant medication.

* As a result of taking Warfarin the veteran's blood clotting was slowed, this causing acute bleeding and excessive blood loss when he was struck down by the rigid truck.

* The excessive blood loss could not be contained nor could the veteran be sustained by blood transfusion and hence his death was caused or contributed to by the effects of Warfarin and hence his death was war-caused.

Legislative Framework

9. The Act relevantly provides as follows:

"8 War-caused death

(1) Subject to this section, for the purposes of veteran shall be taken to have been war-caused if-

(a) the death of the veteran was rendering operational service;

(b) the death of the veteran;

(c) the death of the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) in the opinion of the veteran's environment consequent upon his or her having rendered eligible war service; or

(e) the veteran died-

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran was rendering eligible war service,

and, in the opinion of the disease, or

(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be:

but not otherwise."

Section 120 describes the relevant standard of proof:

"120 Standard of proof

120(1) Where a 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 sub-section (1) or (2) in respect of the incapacity of a person from disease or death with the circumstances of the particular service rendered by the person. ...

(6) Nothing in the provisions of this section, or in any other provision of application.

120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran; ...

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11); or

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or

(b) the kind of disease contracted by the person; or

(c) the kind of death met by the person;

as the case may be."

10. In this case there is no dispute between the parties that the Repatriation Medical Authority (RMA) has not determined a relevant Statement of Principles (SoP) nor has the RMA given notice under section 196G that it intends to do so.

11. This matter then is to be determined within the provisions of section 120(1) and section 120(3) of the Act.

12. Section 120(1) provides that the decision-maker must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the decision-maker is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the decision-maker determine that the death of such a veteran was not war-caused.

13. Section 120(3) provides that the decision-maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the decision-maker, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular services rendered by the veteran.

Medical Evidence

14. Dr Love, physician, did not know the veteran personally. However, after reviewing the autopsy report and the veteran's DVA file, including Dr Wilkinson's report (T4/35), Dr Love prepared a written report dated 5 April 2002 (Exhibit A1). In this report Dr Love expressed the opinion that severe blood loss was one of the primary causes of the veteran's death and that the Warfarin the veteran was taking would have significantly increased the veteran's loss of blood and considerably increased the requirements for blood transfusion and for resuscitation.

15. In his oral evidence Dr Love said that there were indications of excessive bleeding in that the post-mortem examination reported that there were four tubes attached to the body for injection of fluids and blood, two tubes in the damaged area of the chest letting blood out and there was evidence of severe tearing of the veteran's lung which would have caused intense bleeding. Dr Love was of the view that it would be reasonable to assume that blood loss was not stopped. He said this conclusion was also supported by the report of Dr McCarthy where it was recorded that the veteran, on arrival by ambulance at the Prince Charles Hospital was bleeding profusely from the right side chest drain. Dr Love said that the veteran's severe injuries had caused considerable blood loss which required great efforts to try to replace this loss and which in this case resulted in the veteran's "pump system" failing because of insufficient blood. On this basis he was satisfied that the veteran's blood loss was a primary cause of death and the Warfarin medication that the veteran was taking for his heart condition contributed to the veteran's excessive bleeding. As such Dr Love said that he did not consider that the hypothesis put forward by the applicant was fanciful, untenable or contrary to known scientific fact.

16. With respect to the use and effects of Warfarin, Dr Love said that he would expect the veteran to be on a high level of medication because of his particular heart condition, such that he would be maintained at an INR level of 3 to 4. He described this level as meaning that clotting would take three to four times as long as it would if the veteran was not on Warfarin.

17. In cross-examination Dr Love accepted that the cardiac massage given by the QAS would have increased the veteran's bleeding. However, he said that in the circumstances there was no alternative to the Ambulance officers taking such action.

18. Dr Wilkinson, cardiologist, was the veteran's treating cardiologist and had been treating the veteran for some ten years prior to death. He said that he regularly checked the veteran's heart condition (every twelve months) following the veteran's mitral valve surgery and that it was essential that the veteran take Warfarin because of his mitral valve replacement and because of his atrial fibrillation (which he said could not be separated).

19. With regard to dosage and effects of Warfarin, Dr Wilkinson said that he had no direct knowledge of the level of dosage of Warfarin that the veteran was taking, however, he expected that the level of dosage would be sufficient to maintain the veteran's INR level at 3 to 3½.

20. Dr Wilkinson provided a written report dated 12 June 2001 (T4/35). Dr Wilkinson said his report was based on the post-mortem report and his own notes. He said:

"Therefore there is little doubt that sustaining an accident of the ferocity experienced by Mr Hook which caused his death, that excess bleeding would have been very difficult to control because he was adequately anti-coagulated with the Warfarin at the time.

...it is quite conceivable that the Warfarin contributed in a material way to Mr Hook's death."

21. He said that he had not seen the report of Dr McCarthy (Exhibit R2) and when taken to this report he said it did not change the opinion he had already expressed.

22. In answer to questions in cross-examination Dr Wilkinson said that it was difficult to say whether the veteran would have survived the accident if he had not been on Warfarin but he opined that the veteran's chances regardless would have been very minimal and that it would have only have been a matter of minutes or hours before the veteran died.

23. Professor Ansford, Consultant Forensic Pathologist, carried out the post-mortem examination of the late veteran. In addition to the post-mortem report (T4/20-22), Professor Ansford provided a written report dated 3 February 2002 (Exhibit R1) and notes from the original post-mortem file (Exhibit R3). In his written report Professor Ansford stated:

"This unfortunate man suffered severe head and chest injuries in his accident. The brain showed signs of diffuse injury with swelling and blood in the lateral ventricles. Small contra-coup lesions were also present.

In the chest, there were multiple rib fractures and a fractured sternum, which would have produced a "flail chest" during life and a fractured thoracic spine. The severity of the right sided chest injuries was such that the lower part of the right lung was completely torn away and lay free within the cavity.

It was difficult to assess the amount of blood loss, as there were intercostal drains in place, which would have drained much of the blood away.

In view of the above, it is my opinion that the injuries were of such severity that death would have been inevitable whether the deceased had been anticoagulated or not.

If anticoagulation had played a role in exacerbating the blood loss, the contribution would be minor at the most."

24. In his notes (Exhibit R3) Professor Ansford said:

"The deceased had a Glasgow coma score 3 when seen by the Ambulance at the scene with the pupils nonreactive and nil pulse and blood pressure. Resuscitation attempts at the Prince Charles Hospital."

25. Dr McCarthy, Director, Intensive Services Prince Charles Hospital, provided a written report dated 3 December 2001 (Exhibit R2). In this report he said:

"On arrival at The Prince Charles Hospital he was in cardiac arrest with fixed pupils. He had obvious severe head and chest injuries and was bleeding profusely from a right-sided chest drain.

He had been intubated and ventilated by QAS Officers. Thorough resuscitation failed to re-establish any heart action and he died at 0809 hours on 28.3.2000."

Submissions

26. Ms Brennan, for the applicant, submitted that both Dr Love and Dr Wilkinson were of the opinion that the hypothesis, as put forward by the applicant, was established and it was not proved, beyond reasonable doubt, that the veteran's death was inevitable because of the extent of injuries the veteran suffered as a result of the motor vehicle accident and regardless of any anti-coagulant medication the veteran was taking at the time. It was submitted that because the accident took place at 0630 hours and the veteran did not arrived at the Prince Charles Hospital until 0730 hours, excessive blood loss during this time would have been critical and that the material before the Tribunal did not disprove, beyond reasonable doubt, that the Warfarin being taken by the veteran had contributed to the veteran's excessive blood loss.

27. It was submitted, therefore, that the Tribunal could not be satisfied beyond reasonable doubt, that there is no sufficient ground for determining that the death of the veteran was war-caused.

28. Mr McAninley for the respondent, submitted that the extent of injuries suffered by the veteran was such that the Tribunal would be satisfied, beyond reasonable doubt, that his death was not war-caused. The respondent further submitted that because of the impact from a rigid truck travelling at 60 km per hour the 82 year old veteran suffered such severe head and chest injuries that his death was inevitable and that any contribution from Warfarin to the veteran's death was minimal.

29. It was therefore submitted that the decision under review should be affirmed.

Consideration

30. The Tribunal is satisfied that the veteran, at the time of the accident, was taking the anti-coagulant drug Warfarin, such that his INR would have been maintained at a level between 3 and 4. The Tribunal is also satisfied that at this ratio level blood clotting takes significantly longer than it would if Warfarin was not being taken (of the order of three to four times as long); and therefore can lead to increased bleeding in the event of injury.

31. The hypothesis put forward by the applicant however is not contested by the respondent on the ground that the veteran actually suffered excessive bleeding at the time of the accident. The respondent's contention is that the extreme severity of the impact suffered by the veteran inevitably causing his death regardless of any coagulant medication being taken by the veteran. As such the respondent contends that the hypothesis put forward by the applicant is not a reasonable hypothesis.

32. The Tribunal, being satisfied that there is no SoP in force or pending pursuant to the Act, is to determine this matter within the provisions of sections 120(1) and 120(3) of the Act.

33. The Tribunal is mindful that the Courts have addressed the correct approach to be taken in matters such as this.

34. The joint judgment of the Full Court in East v Repatriation Commission (1987) 16 FCR 517 cited with approval the following passage:

"...To be reasonable a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be raised by the material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis ...a reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities (at 532-3)."

35. With regard to the approach to be taken in considering whether an hypothesis is reasonable, the Tribunal notes the comments of the Full Court of the Federal Court of Australia in Repatriation Commission v Bey (1997) 149 ALR 721. In Bey, at 730, the Full Court commented on the decision in Cooke v Repatriation Commission (1997) 45 ALD 205 as follows:

"In the passages from the judgments of Einfeld J and Lee J relied on by the primary judge their Honours concluded that the mere possibility of a connection between a disease and war service is sufficient to constitute a 'reasonable hypothesis' on the ground that any hypothesis is no more than a possibility. Accordingly, for the tribunal to say that a reasonable hypothesis is not raised by a mere possibility of a connection reflects a misconception of the task imposed by s 120(3). In our view that course of reasoning ignores the fact that the expression in question is not 'hypothesis' but 'reasonable hypothesis'. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker. The reasoning is also inconsistent with what was said by Jason CJ, Deane and McHugh JJ in Bushell (at CLR 414; ALR 34):

'The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.'

It is also inconsistent with what was said by Mason CJ, Gaudron and McHugh JJ in Byrnes (at CLR 569-570; ALR 214):

'The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.'

Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This court restates the position established by East, Bushell and Byrnes. A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."

36. With respect to the application of section 120(1) and (3), the Tribunal, with respect, follows the approach taken in Byrnes in which the High Court, explaining the steps to be taken in applying section 120 of the Act, said at 6:

"The position may be summarised as follows:

(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.

(2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless:

(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,

thus disproving, beyond reasonable doubt, the hypotheses."

37. The Tribunal is mindful that Dr Love, who did not know the veteran and has based his opinion solely on the papers before him, has formed the view that the hypothesis put forward by the applicant is not fanciful, untenable or contrary to known scientific fact. Dr Wilkinson who has been the specialist cardiologist treating the applicant for his mitral valve dysfunction has opined, again based on the papers before him, that the veteran would have suffered excessive bleeding at the time of the accident, because of the anti-coagulant medication he was taking. However when asked about the inevitability or otherwise of the veteran's death from the accident if he was not taking Warfarin, Dr Wilkinson said it was difficult to say. However, he opined that the applicant's chances of survival were minimal, and while he said it was hard to put a timeframe on survival he thought in Mr Hook's circumstances that it would only have been a matter of minutes or hours from the time of the accident to the time of his death.

38. Professor Ansford, an experienced Forensic Pathologist, conducted the post-mortem on the deceased and was in the position of being able to specifically and accurately describe the extent of the late veteran's injuries. He said he had seldom seen as severe or horrendous an injury as the veteran had suffered to his right lung, the lower half being ripped off; and furthermore the brain injury the veteran suffered was, in his opinion, severe enough to likely be fatal. He noted that while he found some bleeding in the veteran's brain it was not excessive. It was Dr Ansford's conclusion that given the massive impact the veteran suffered and the extent of the injuries he received, these would be sufficient of themselves to inevitably cause death particularly in someone at the veteran's age of 82 years.

39. With respect to Professor Ansford's notes from the original post-mortem file (Exhibit R3) tendered at the hearing, the Tribunal notes the applicant's objection to these notes being taken in to account given that the applicant was not in a position to consult the doctors appearing for the applicant with respect to their content. The Tribunal however has allowed these notes to be included in the material to be considered by the Tribunal on the basis that they are Professor Ansford's relevant comments included in the internal historical file related to the doctor's post-mortem examination of the late veteran, that Professor Ansford was present in person to speak to these notes and answer questions about them and that the Tribunal was willing to grant an adjournment to allow the applicant time to seek further medical opinion with respect to the contents of the notes (an opportunity the applicant declined to take). Professor Ansford said the notes reinforced his view that the veteran's death was inevitable because of his horrendous injuries, that it was probable that the veteran was close to death if not actually dead when attended to at the accident scene and despite quite extensive resuscitation efforts he was eventually certified dead shortly after his arrival at the Prince Charles Hospital.

40. The Tribunal accepts the fact that the anti-coagulant medication (Warfarin) that the veteran was taking at the time of the accident was such that it would have significantly increased the level of bleeding that the veteran suffered as a result of his motor vehicle injuries. The Tribunal also accepts that the material before it points to an hypothesis as put forward by the applicant.

41. However, after careful consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied, beyond any reasonable doubt, that the contribution to the cause of the veteran's death attributable to the Warfarin he was taking is de minimus. The Tribunal therefore is satisfied, beyond reasonable doubt, that the hypothesis put forward by the applicant is too tenuous to be a reasonable hypothesis and finds accordingly.

42. It follows from the above findings that the Tribunal, pursuant to section 120(3) of the Act, is satisfied beyond reasonable doubt that the material before it does not give rise to a reasonable hypothesis connecting the veteran's death with his war-service.

43. The Tribunal affirms the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member

Signed: Sarah Oliver

Associate

Date of Hearing 13 December 2002

Date of Decision 24 January 2003

Counsel for the Applicant Ms Brennan of Counsel

Solicitor for the Applicant Gilshenan & Luton

Solicitor for the Respondent Mr McAninley, Departmental Advocate