McWilliam and Repatriation Commission [2010] AATA 76 (3 February 2010)

Last Updated: 3 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4991

VETERANS' APPEALS DIVISION		)
	Re		JOYCE McWILLIAM

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier C Ermert (Retd), Member Dr R McRae, Member

Date 3 February 2010

Place Melbourne

Decision

The Tribunal sets aside the decision under review and in substitution decides that the applicant is entitled to the widow’s pension.

(sgd) C Ermert
Member

VETERANS’ AFFAIRS – claim for widow’s pension – veteran’s operational service – cause of death Alzheimer’s Disease with contribution by asthma - whether causes of death are war-caused - four stages of Deledio reasoning - hypotheses connecting conditions with operational service - Statements of Principles - whether hypotheses fit Statements of Principles – Alzheimer’s Disease and asthma both war-caused –decision set aside

Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 196A, 196B

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622

Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690

Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33

Dolan v Australian and Overseas Telecommunications [1993] FCA 202; (1993) 42 FCR 206

REASONS FOR DECISION

3 February 2010

Brigadier C Ermert, Member Dr R McRae, Member

INTRODUCTION

1. Mr Leo McWilliam, the deceased veteran, served in the Australian Army from 19 May 1943 to 10 December 1946 which included some four months service in New Guinea. His service constitutes operational service in accordance with the provisions of the Veterans’ Entitlements Act 1986 (the Act).
2. Within the veteran’s family there is a belief that during his operational service he suffered a blow to the head from an artillery gun which rendered him unconscious and thereafter he had no recollection of the day. This belief was the subject of teasing of the veteran by male family members. Also, the family recall the veteran remarking about the wet and humid weather conditions in New Guinea and the terrible dust and dirt encountered while doing clean-up work there.
3. The veteran suffered asthma for many years and developed dementia in the latter years of his life. He died on 20 August 2003 at the age of 79 years from bronchitis, cachexia, dementia with bronchopneumonia being the terminal event.
4. On 7 April 2008 Mrs Joyce McWilliam, the veteran’s widow and the applicant in this case, made a claim for a widows’ pension which was refused. Mrs McWilliam applied for a review of that decision. On 26 September 2008 the Veterans’ Review Board (VRB) affirmed the earlier decision. This application is for a review of the VRB decision.

THE HEARING

5. At the hearing Mrs McWilliam was represented by Mr G Chancellor of Counsel, instructed by Williams Winter Solicitors. The respondent was represented by Mr K Rudge, an Advocate with the Department of Veterans’ Affairs. The Tribunal was informed that Mrs McWilliam was unable to give evidence due to poor health. The Tribunal heard evidence from Ms Robyn Parker, the daughter of Mr and Mrs McWilliam, and Professor J F Cade, Principal Specialist in Intensive Care at The Royal Melbourne Hospital.
6. The Tribunal had before it the documents the respondent submitted pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act). For the applicant the Tribunal took into evidence statements by Mrs McWilliam and Ms Parker (Exhibits A1 and A2). For the respondent the Tribunal took into evidence two reports by Professor Cade, a transcript of the VRB hearing, clinical notes from Southern Peninsula and Rosebud Hospital, documents from the departmental files, and medical reports from Dr D K Young and Dr W F Christophersen (Exhibits R1 to R8).

THE ISSUES

7. The first issue to be determined in this case is the cause or causes of the veteran’s death.
8. The second issue is whether those causes are war-caused.

WHAT ARE THE CAUSES OF DEATH OF THE VETERAN?

9. The Tribunal’s first task is to determine the cause or causes of the veteran’s death. The standard of proof to be applied is to the Tribunal’s reasonable satisfaction: Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200; Repatriation Commission v Cooke (1998) 90 FCR 307; and Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690. Consistent with these cases, in Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 the Full Court of the Federal Court stated at 634:

...When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: ...

10. The causes of death shown on the death certificate are:
    • (a) Bronchopneumonia - 1 week
    • (b) Bronchitis - 2 weeks
    • (c) Cachexia - 6 months
    • (d) Dementia of old age - 3 years
11. In his evidence Professor Cade stated that the immediate cause of the veteran’s death was bronchopneumonia which is a common terminal event in the elderly in our community. He said that the dominant cause of death was cachexia resulting from the veteran’s dementia which was in the form of Alzheimer’s Disease. Professor Cade also stated that the veteran’s long-standing asthma was a contributing factor albeit of lesser impact, approximately 15 per cent.
12. The cause of death was neither addressed in the applicant’s statement of facts and contentions nor by Mr Chancellor at the hearing. The respondent submitted in its facts and contentions that the cause of death was Alzheimer’s disease. Multiple myeloma may have been a cause of death, but the evidence is not clear on this point.
13. The Tribunal accepts the expert evidence of Professor Cade and is satisfied that the cause of the veteran’s death was Alzheimer’s Disease, with asthma being a contributory cause.

ARE THE VETERAN’S CAUSES OF DEATH WAR-CAUSED?

14. The question of whether an injury or disease is taken to be war-caused is covered in section 9 of the Act. This section provides that:

(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; ...

15. There was no disagreement that the veterans’ period of service constituted operational service as defined in the Act. Thus, the question of whether his claimed causes of death are war-caused is to be determined by applying sections 120(1) and 120(3) of the Act. Those sections provide that:

(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.
Note: This subsection is affected by section 120A.
...
(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.
Note: This subsection is affected by section 120A.

16. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has determined a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from section 120A(3), which relevantly provides:

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.

17. Section 196A of the Act provides for the establishment of the RMA. Section 196B(2) of the Act provides:

If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans;
...

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

18. The reference in section 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in section 196B(14) of the Act. Section 196B(14) provides that:

A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service;
...

19. Where a condition is the subject of an SoP the Tribunal must apply the test prescribed by section 120A(3) of the Act, as explained by the Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97-98, in the following way:
    1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
    2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
    3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
    4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
20. The Tribunal will consider each cause of death that was subject of the appeal in turn.

ASTHMA

Step 1 – Does the material point to a hypothesis connecting the veteran’s asthma with his operational service?

21. The hypothesis advanced on behalf of Mrs McWilliam is that the veteran was exposed to dust and pollens during his service in New Guinea which caused the onset of asthma which subsequently contributed to the veteran’s death.
22. In her statement Mrs McWilliam said that her husband had told her that he was involved in the clean up in New Guinea after the declaration of peace. He said the clean up was dreadful. He said that the environment was filthy and that he believed that it was the dirt and dust to which he was exposed during the clean up which contributed to his chest problems. He told me that he had suffered no problems with his chest before his enlistment. He told me that by discharge he was suffering chronic bronchitis and asthma. In her oral evidence Ms Parker confirmed her written statement that her father suffered chest problems for as long as she remembered. She said that, in the mid 1970’s, the family moved from Doncaster to Rosebud as they believed the seaside air to be better for her father’s chest condition. Ms Parker also stated that her father suffered from asthma right up to his death.
23. Professor Cade’s evidence was that, although the veteran first required treatment for asthma in the 1950’s it was likely that asthma existed before then and could have had its onset during his service in New Guinea. Professor Cade said that the veteran’s asthma was long-standing and contributed to his death.
24. The Tribunal is satisfied that there is material pointing to the hypothesis connecting the veteran’s death with his war-service.

Step 2 – Is there an SoP in force which deals with the relevant condition?

25. Instrument Nº 85 of 2001 concerns Asthma and is in force.

Step 3 – Does the hypothesis fit the template of the SoP?

26. Before it can be said that the hypothesis is reasonable it must contain one or more of the factors which the RMA has determined to be the minimum which must exist and be related to the person’s service.
27. The relevant risk factors in this case are factors 5(a) and 5(b) which state:

(a) for the first episode of asthma only, being exposed to an occupational antigen within the 24 hours before the clinical onset of asthma; or

(b) for the first episode of asthma only, being exposed to an antigenic stimulus causing asthma within the 24 hours before the clinical onset of asthma;

28. The common element in these factors is that the exposure must be within the 24 hours before the clinical onset of asthma. The hypothesis is that the veteran’s exposure occurred in New Guinea causing the clinical onset of asthma within 24 hours.
29. In regard to the clinical onset of asthma, Mr Rudge referred to the oral evidence of Professor Cade in which he opined that the onset of asthma of note requiring treatment was in the 1950’s. Mr Rudge referred also to the veteran’s claim for asthma dated 27 June 1973 (Exhibit R6) which records a statement by the veteran 1956 Asthma Dr. N. Dowell, Doncaster Clinic. Exhibit R6 also contains an entry dated 16 July 1973 by Dr Preston for Dr Dowell ... Mr. Leo McWilliam has been treated here for bronchial asthma for the past 15 years. Mr Rudge submitted that this would take the clinical onset back to 1958. Mr Rudge referred to the report by Dr Young dated 26 October 1983 (Exhibit R7) showing Asthma for past 33 years putting the onset at 1950, and the report by Dr Christopherson dated 7 February 1984 (Exhibit R8) showing ~ 35 yr hist of asthma putting the onset at 1949. On the basis of the documentary evidence Mr Rudge submitted that the clinical onset of the veteran’s asthma was not during his war-service and that any exposure by the veteran in New Guinea did not meet the 24 hour requirement of factors 5(a) and 5(b) of the SoP.
30. In his submissions Mr Chancellor also referred to Exhibit R6 in which the veteran claimed that he first noticed signs of asthma during my service in New Guinea, and shortage of breath, wheezing, cough, sometimes with sputum which can be difficult to shift ... Began in 1942. Mr Chancellor referred also to Mrs McWilliam’s statement in which she said When I met Lee he suffered a chronic productive cough. He would cough into a handkerchief and bring up a yellow/green mucus. ... He also suffered a wheeze from the time that I met him. He continued to suffer the productive cough and the wheeze right up until his death. Mrs McWilliam also stated that the veteran told her ... that by discharge he was suffering chronic bronchitis and asthma.
31. The Tribunal also notes the oral evidence of Professor Cade in which he said ...I would concede that it was more than possible, in fact probably likely, that it had been existing before that and may well have occurred, had its onset during service .
32. After considering the evidence, the Tribunal is satisfied that there is material pointing to the clinical onset of the veteran’s asthma occurring during his war-service in New Guinea.
33. In regard to the substances to which the veteran was exposed in New Guinea Mr Rudge referred to the definition of occupational antigen contained in clause 8 of the SoP. He contended that there was no evidence that any of the substances listed in sub-paragraphs (a) to (h) had been inhaled by the veteran. Mr Rudge contended that the veteran served in New Guinea during the wet season, characterised by rain which precluded a dusty environment from which to inhale substances. Mr Rudge also referred to the evidence of Professor Cade that in New Guinea antigenic substances emanated from moulds and dust in the roofs of native dwellings, from animals and the damp from poorly ventilated dwellings. Mr Rudge contended that these conditions would not have been met in the accommodation used by soldiers in New Guinea.
34. In his submissions Mr Chancellor also referred to the oral evidence given by Professor Cade in which he stated his opinion that dust and grime purportedly encountered by the veteran in New Guinea would fit into the SoP definition of occupational antigen. Professor Cade said that there are occupational antigens in the mouldy thatch in the rooves and that ... it is hardly imaginable that he could have avoided that sort of native construction all together. Professor Cade went on to say ... So it seemed to me that there were multiple mechanisms by which asthma could have occurred ... during service, multiple mechanisms by which it could have been produced and would, to a large extent, fulfil the requirements of the statements of principles .
35. After considering the evidence the Tribunal is satisfied that there is material pointing to the exposure of the veteran during his service in New Guinea to occupational antigens and antigenic stimuli causing asthma.
36. Accordingly, as the Tribunal has found that there is material pointing to one of the essential factors of the SoP and that it is related to the veteran’s war service, the Tribunal is satisfied that the asthma hypothesis is reasonable. The Tribunal will now proceed to consider whether, under section 120(1) of the Act, it is satisfied beyond reasonable doubt that the veteran’s death was not war-caused.

Step 4 - Is the Tribunal satisfied beyond reasonable doubt that the veteran’s asthma was not war-caused?

37. Following the judgement in Deledio if the hypothesis is reasonable the claim will succeed unless: (1) one or more facts necessary to support it are disproved beyond reasonable doubt; or (2) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
38. The evidence advanced in support of the hypothesis comprises:
    • (a) the evidence of Professor Cade of the wide spread existence of antigens and the multiple mechanisms within the definitions of the SoP by which the veteran could have contracted asthma in New Guinea;
    • (b) the statement by Mrs McWilliam that her husband had told her that he was suffering asthma by the time of his discharge;
    • (c) statements made by the veteran in his 1973 claim for asthma that his signs of asthma first appeared in New Guinea; and
    • (d) the opinion of Professor Cade that the veteran’s asthma could have had an onset during his service in New Guinea.
39. Against this evidence Mr Rudge contended that the clinical onset of the asthma was not earlier than 1950, as evidenced by the various doctors’ reports. He also submitted that the substances claimed to have been inhaled by the veteran were prevalent in native dwellings but would not have been prevalent in the accommodation of soldiers in New Guinea.
40. The Tribunal notes the evidence of Professor Cade that the clinical onset of the asthma could have been during the veteran’s service in New Guinea. The Tribunal also noted Professor Cade’s evidence as to the prevalence of asthma producing substances in New Guinea. In regard to the types of asthma producing substances defined in the SoP Professor Cade said in evidence ... it’s hard to dissect that out. But I think there could be elements of all three, the occupational antigens, which would be in particularly in the roofs, in the thatch. Antigenic stimuli, which occur in most environments ... And that there was a nonantigenic stimulus, without any doubt, was the smoking. So I have not really been able to dissect out with any confidence that (sic) relative contributions of those three, but I believe they could all three well have been in play.
41. In considering all the material the Tribunal is not satisfied beyond reasonable doubt that the facts supporting the hypothesis are disproved.
42. Mr Rudge also contended that the fact the veteran’s time in New Guinea coincided with the wet season was proof of a fact inconsistent with the hypothesis in that the wet conditions precluded the dust from which the veteran inhaled the asthma producing substances. The Tribunal notes the element of conjecture in this contention and the lack of any supporting evidence and is not satisfied beyond reasonable doubt that this proved a fact inconsistent with the hypothesis
43. As a consequence the Tribunal is not satisfied beyond reasonable doubt that the veteran’s asthma was not war-caused.
44. For completeness the Tribunal will also consider whether the veteran’s Alzheimer’s Disease is war-caused.

ALZHEIMER’S DISEASE

Step 1 – Does the material point to a hypothesis connecting the veteran’s Alzheimer’s Disease with his operational service?

45. The hypothesis advanced on behalf of Mrs McWilliam is that the veteran suffered a blow to the head during his operational service in New Guinea which caused a loss of consciousness and a loss of memory (amnesia) lasting for an unspecified duration but in the order of hours which subsequently led to the onset of Alzheimer’s Disease which was a cause of the veteran’s death.
46. In her statement dated 5 November 2008 (Exhibit A1) Mrs McWilliam said ... I am aware that he suffered a blow to the head while in New Guinea. He told me of this incident and that it occurred when he was operating guns. ... Lee told me that he was rendered unconscious by the blow to the head from the gun and that he had no memory of that day. Ms Parker’s statement dated 27 October 2008 (Exhibit A2), confirmed by her oral evidence at the hearing, said that her father ... told me that during his overseas war service he suffered a blow to the head which rendered him unconscious and that he had no recollection of events for a period of a day.
47. SoP Instrument Nº 17 of 2001 concerning Alzheimer’s Disease includes suffering from a head injury as a factor that must be related to war service, with the definition of head injury including a trauma to the head resulting in post-traumatic amnesia for more than 30 minutes.
48. The death certificate includes as causes of death cachexia – 6 months and dementia of old age – 3 years. In his evidence Professor Cade stated that the dominant cause of death was cachexia resulting from the veteran’s Alzheimer’s Disease.
49. From the tendered statements and evidence the Tribunal is satisfied that there is material pointing to a hypothesis connecting the veteran’s death from Alzheimer’s Disease with his operational service.

Step 2 – Is there an SoP in force which deals with the relevant condition?

50. Instrument Nº 17 of 2001 concerns Alzheimer’s Disease and is in force.

Step 3 – Does the hypothesis fit the template of the SoP?

51. Before it can be said that the hypothesis is reasonable it must contain one or more of the factors which the RMA has determined to be the minimum which must exist and must be related to the person’s service.
52. The relevant risk factor in this case is factor 5.(a) which states:

suffering from a head injury at least 10 years or more before the clinical onset of Alzheimer’s disease.

53. Head injury is defined in clause 8 of the SoP as:
    • (i) ... ,or
    • (ii) loss of consciousness for more than 15 minutes, or
    • (iii) post-traumatic amnesia for more than 30 minutes; or
    • (iv) ...
54. The hypothesis includes the contention that the veteran suffered a blow on the head during his service in New Guinea. There is no specific contention in the hypothesis regarding the clinical onset of Alzheimer’s Disease, nor was any evidence taken on this particular point. However the Tribunal notes the statement in the death certificate showing the veteran suffered from dementia of old age for three years. This statement indicates that the veteran suffered from dementia from the year 2000, which is at least 54 years after his service in New Guinea. The Tribunal accepts that the hypothesised head injury would have occurred more than ten years before the clinical onset of the veteran’s Alzheimer’s Disease.
55. The hypothesis contains the contention that the veteran suffered a loss of consciousness from a blow to the head. In regard to the post-traumatic amnesia Mrs McWilliam says in her 2008 statement that the veteran had no memory for the day and that he had lost consciousness and memory of the whole of that day. In her 2008 statement Ms Parker says that her father had told her that he had no recollection of events for a period of a day ... had no recollection of events from that time for a period of approximately a day. Mr Rudge made no submissions regarding the duration of the loss of memory. The Tribunal accepts that the hypothesised loss of memory lasted for longer than 30 minutes.
56. Mr Chancellor submitted that the third Deledio [1998] FCA 391; 83 FCR 82 step had been met. Mr Rudge submitted to the contrary and referred the Tribunal to the judgement of Black CJ, Drummond and Kenny JJ in the decision of the Full Federal Court in the matter of Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581 (9 May, 18 June 2002) where their Honours said:

(53) ... As the authorities show, however, in order to satisfy ss120(3) and 120A(3) of the Act, there must be more than a hypothesis of connection that is consistent with the relevant SoP. In order to satisfy these provisions the material must “raise” or “point to” such a hypothesis and this hypothesis, as raised or pointed to by the material, must fit the relevant SoP. ...
(54) ... If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material

57. In considering this issue the Tribunal referred further to the judgement in Hill [2002] FCAFC 192; 69 ALD 581. In which their Honours said:

[61] ... the tribunal erred by identifying the wrong issues in considering whether the material before it fitted a template in the PTSD SoP. ... the tribunal was not turning its mind to cl 1 of the PTSD SoP and to “experiencing a stressor”. Rather, ... the tribunal was considering whether the material before it pointed to the elements of “post-traumatic stress disorder” as defined in cl 4 of the PTSD SoP. This inquiry was not the correct one. The inquiry would have been relevant if there had been a dispute before the tribunal as to whether or not Mr Hill was actually suffering from PTSD. As already noted, however, there was no such dispute ....

...

[66] ...the tribunal was mistakenly directing itself to an issue about the existence of the disease. (In entering upon an inquiry as to the existence of PTSD, the tribunal would have been wrongly entering “upon the fact finding exercise” to which the primary judge referred).
[67] ... The correct issue was, assuming Mr Hill suffered from PTSD as defined in cl 4 of the SoP, did the material raise or point to his “experiencing a stressor” as defined, during his operational service?

58. In this matter, as in Hill [2002] FCAFC 192; 69 ALD 581, there is no dispute that the veteran suffered from Alzheimer’s Disease. Therefore, without entering into fact finding the Tribunal needs to consider only whether there is material that raises or points to each element of the relevant SoP. In considering how material must raise or point to a hypothesis the Tribunal will apply the principle set down by the High Court in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 414:

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.

59. The judgement of the Full Court in Deledio 83 FCR, at 97 said:

... The hypothesis raised ... must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service ... If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.

60. Factor 5(a) of the SoP for Alzheimer’s Disease requires the veteran to have suffered a head injury at least 10 years or more before the clinical onset of Alzheimer’s Disease. Clause 8 of the SoP relevantly requires the head injury to be a trauma to the head which results in post-traumatic amnesia for more than 30 minutes. In this case the Tribunal has already found material in the hypothesis pointing to the veteran suffering a head injury through a blow to the head during his service in New Guinea and that this occurred more than 10 years before the clinical onset of Alzheimer’s Disease. The Tribunal has also found that there is material pointing to post-traumatic amnesia from the head injury lasting for some hours, that is, more than 30 minutes. As a result the Tribunal is satisfied that the hypothesis contains material pointing to each element of the SoP and is related to the veteran’s war service.
61. Accordingly, as the Tribunal has found that there is material pointing to one of the factors of the SoP and that it is related to the veteran’s war service, the Tribunal is satisfied that the hypothesis is reasonable. The Tribunal will now proceed to consider whether, under section 120(1) of the Act, it is satisfied beyond reasonable doubt that the veteran’s death was not war-caused.

Step 4 - Is the Tribunal satisfied beyond reasonable doubt that the veteran’s Alzheimer’s Disease was not war-caused?

62. There is clear medical evidence that the veteran suffered Alzheimer’s Disease and that its consequences were a major contributor to the veteran’s death. These issues are not in contention. The issues in contention are whether the veteran did actually suffer a blow to the head during his war service in New Guinea and whether the blow was sufficient to cause a loss of memory for more than 30 minutes. Evidence on these facts was submitted in the 2008 statements of Mrs McWilliam and Ms Parker and the oral evidence of Ms Parker. For the Tribunal to be satisfied beyond reasonable doubt that the veteran’s Alzheimer’s Disease was not war-caused it would need to be satisfied beyond reasonable doubt that the veteran did not suffer a blow to the head during his war-service or that the blow, if suffered, did not cause a loss of memory of longer than 30 minutes.
63. Mr Chancellor submitted that he put to Professor Cade the case of a footballer who might be knocked out, get back up and be able to play, albeit not at his best, and be symptom free the next day. Professor Cade’s response was that he would expect some headaches and dizziness but if the person was under enough pressure and the blood was pumping, he would probably push on and manage and it would not be unusual that when he woke up the next day he might feel as though nothing had happened. Mr Chancellor submitted that such a situation might explain why the head injury is not in the veteran’s medical records. Mr Chancellor submitted further that if the veteran had been monitored by others but had not required hospital admission it would also explain the lack of medical records of the incident. Mr Chancellor submitted that the lack of records of the incident is not definitive in proving that the incident did not occur. He said that sometimes the records are just not there.
64. Mr Chancellor referred to the judgement in Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 where Brennan J said there is no reason why logically prohibitive hearsay should not be given credence. Mr Chancellor contended that this judgement had been applied over a number of years. He referred also to section 33(c) of the AAT Act which states the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. He then referred to the judgement in Dolan v Australian and Overseas Telecommunications [1993] FCA 202; (1993) 42 FCR 206 and submitted that the Tribunal in standing in the footsteps of the VRB:

... is not bound by technicalities, legal forms or rules of evidence. It shall act according to substantial justice and the merits and all the circumstances of the case and, without limiting the generality of the foregoing, it shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(1) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or
(2) the absence of or deficiency in relevant official records, including an absence or deficiency resulting from the fact that the occurrence happened during service of a veteran.

65. Mr Chancellor submitted that the effluxion of time becomes a real problem in most World War II cases and that many widows’ cases inevitably involve hearsay and second hand evidence. He referred to the evidence of Ms Parker who said that Mr M Jorgensen, solicitor for the applicant, was very slow and methodical when taking the statement of Mrs McWilliam. Mr Chancellor contended that the whole of the evidence of Ms Parker was entirely plausible and submitted that:

... when one gets to the fourth Deledio step in these matters, where it is operational service, the onus rests with the Repatriation Commission to establish, beyond reasonable doubt that the hypothesis from the events and the facts that support it did not occur. And in our submission, the evidence is sufficient to support the case and that the commission cannot meet that onus.

66. Mr Rudge submitted that Mrs McWilliam’s statement could not be relied upon as it was made about a year after she suffered a stroke and was at that time, according to the oral evidence of Ms Parker, confused. Mr Rudge further submitted that there was doubt over the evidence of Ms Parker. In regard to her evidence of the veteran’s head injury, Mr Rudge submitted that her oral evidence comprised second and third hand information overheard by a then ten year old girl in the context of male only family member humour and teasing.
67. Mr Rudge submitted medical facilities were available to servicemen in New Guinea, evidenced by the veteran’s record of treatment for dengue fever. Mr Rudge referred to Professor Cade’s evidence that after a loss of memory for a whole day the veteran would not be able to function independently and there would have been some presentation to medical facilities and some record of that presentation. Mr Rudge submitted that there is no record of a presentation and, at his discharge, when asked specific questions about illnesses and injuries suffered during his service the veteran referred only to his admission to hospital as a result of dengue fever.
68. The factors in contention are whether the veteran suffered a blow to the head during his operational service in New Guinea and whether the blow was sufficient to cause a loss of memory for longer than 30 minutes. In considering the issue the Tribunal is cognisant of the reasoning in Deledio [1998] FCA 391; 83 FCR 82 that if the hypothesis is reasonable the claim will succeed unless one or more facts necessary to support it are disproved beyond reasonable doubt; or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
69. In considering the issue of the blow to the veteran’s head and the post-traumatic amnesia the Tribunal notes the oral evidence of Ms Parker that she had no direct knowledge of how her father suffered a blow to the head or when it happened. In her oral evidence she said that her father had told her that ... he couldn’t remember what happened to him that day. When asked how her father knew that he suffered a blow to the head Ms Parker said ... Because he was told, I guess, by the other men. As I said I don’t know. I don’t have details of it. I can only tell you what I know. I have no idea.
70. The Tribunal notes also the material from Mrs McWilliam who said in her written statement Lee did confirm the occurrence of the incident to me and that he had lost consciousness and memory of the whole of that day. In considering this material the Tribunal notes the evidence of Ms Parker that Mrs McWilliam’s statement was made after she had suffered a stroke and that at times Mrs McWilliam could be confused.
71. The Tribunal notes also the evidence of Professor Cade on the effects of a blow to the head. When asked about the force required to generate an injury that might cause a loss of memory in the order of 12 to 24 hours Professor Cade said that ... it would have to be a significant blunt injury that would cause unconsciousness. I’m surprised that it didn’t cause a superficial injury requiring suturing or bleeding or bruising or some evidence ... of external damage. . Professor Cade said that he would expect a person suffering such a blow would have received medical attention, and be confined to bed for observation for 24 to 48 hours. Professor Cade’s evidence was that after a blow to the head involving both loss of consciousness and loss of memory, it was remarkable that there was no external injury consequent to the necessary trauma required to cause the brain injury, and which would be likely to require medical attention in its own right. Professor Cade considered the veteran would not have been able to function independently and would have presented or been taken by others to a medical facility for at least observation and possibly treatment unless life-threatening circumstances prevailed. In this case the Tribunal notes that there is no evidence of life threatening circumstances, nor is there evidence of treatment at a medical facility.
72. In regard to the lack of entries in the medical records Mr Chancellor submitted that, like an injured footballer, the veteran could have continued to perform his functions without recourse to medical treatment. Further, Mr Chancellor submitted that sometimes the records are simply not there.
73. In regard to the injured footballer analogy the Tribunal takes into account the whole of Professor Cade’s evidence, the weight of which was that a blow to the head sufficient to cause amnesia of some hours would have rendered the veteran incapable of continuing to perform his normal functions and require some form of treatment. The Tribunal is aware that the lack of an entry in the veteran’s medical records of such an incident is not definitive in determining the existence or otherwise of a blow to the head. However, the Tribunal notes that the veteran did not mention the blow to the head at the time of his discharge when specifically asked about injuries received during his service.
74. In summary, the evidence for a blow to the veteran’s head and subsequent amnesia are the recollections of Mrs McWilliam and Ms Parker of statements purportedly made by the veteran or other family members. On the other hand Professor Cade gave evidence that a blow sufficiently severe to cause the loss of memory as described would cause a loss of function and would require treatment. There is no record of such treatment and in his discharge procedures the veteran himself recorded no such incident or injury.
75. In considering the whole of the evidence the Tribunal is satisfied that the fact of a blow to the head sufficient to cause a loss of 30 minutes or more is disproved beyond reasonable doubt. As a consequence the Tribunal is satisfied beyond reasonable doubt that the veteran’s Alzheimer’s Disease is not war-caused.

CONCLUSION

76. The Tribunal is not satisfied beyond reasonable doubt that the veteran’s asthma was not war-caused. Asthma was a contributory cause of the veteran’s death. As a consequence, and applying section 120(1) of the Act, the Tribunal determines that the veteran’s death was war-caused. This means that Mrs McWilliam’s claim succeeds.

DECISION

77. The decision under review is set aside and in its place the Tribunal decides that the applicant is entitled to the widow’s pension as claimed.

I certify that the seventy seven [77] preceding paragraphs are a true copy of the reasons for the decision herein of

Brigadier C Ermert (Retd), Member

Dr R McRae, Member

Signed: Dianne Eva

Clerk

Date of Hearing: 26 November 2009

Date of Decision: 3 February 2010

Counsel for the applicant: Mr G Chancellor

Solicitor for the applicant: Williams Winter Solicitors

Solicitor for the respondent: Mr K Rudge, Department of Veterans’ Affairs