Merry and Repatriation Commission [1991] AATA 745 (7 October 1991)

Last Updated: 9 July 2008

ADMINISTRATIVE APPEALS TRIBUNAL

DECISION AND REASONS FOR DECISION

VETERANS' AFFAIRS - widow's pension - whether death of applicant's husband war-caused - whether any reasonable hypothesis linking veterans' carcinomatosis (prostatic carcinoma) to his war service - decision affirmed.

Veterans' Entitlements Act 1986 ss. 8, 120

Re Broomhead and Repatriation Commission (unreported) Decision No. 6204

East v Repatriation Commission [1987] FCA 242; 74 ALR 518, 6 AAR 492

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. V90/837

GENERAL ADMINISTRATIVE DIVISION )

Re: JOAN MARGARET MERRY

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

AAT Decision No 7376

Tribunal: Deputy President B.M. Forrest

Mr A. Argent, Member Dr D. Sutherland, Member

Place: Melbourne

Date: 7 October 1991

Decision: The Tribunal affirms the decision under review.

Deputy President

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. V90/837

GENERAL ADMINISTRATIVE DIVISION )

Re: JOAN MARGARET MERRY
Applicant

And: REPATRIATION COMMISSION

Respondent

REASONS FOR DECISION

7 October 1991 Deputy President B.M. Forrest

Mr A. Argent, Member

Dr D. Sutherland, Member

This is an application by Mrs Joan Margaret Merry for a review of a decision of the respondent made on 17 August 1989 and affirmed by the Veterans' Review Board on 8 August 1990 that the death of the applicant's husband Leigh William Merry was not war-caused within the meaning of s. 8 of the Veterans' Entitlements Act 1986 ("the Act").

The late Mr Merry died on 3 February 1989 at the age of 75 years. The applicant claimed that the certified cause of death, carcinomatosis (prostatic carcinoma) was war-caused. In her pension claim dated 10 March 1989 the applicant contended that her husband's death was caused by his service related smoking habit.

Mr Merry served in the Australian Army from 22 April 1942 to 23 December 1944. He had operational service as defined in the Act, in New Guinea. That being so the Tribunal in arriving at its decision is required to determine that the death of Mr Merry was war-caused unless it is satisfied beyond reasonable doubt there is no sufficient ground for making that determination: s. 120(1) of the Act. The Tribunal is required to be so satisfied, as a matter of law, if it is of the opinion that the material before it does not raise a reasonable hypotheses connecting the death of Mr Merry with the circumstances of the particular service rendered by him: s. 120(3) of the Act.

The applicant gave evidence and was assisted by Mr Herbert. Ms Lamshed represented the respondent.

The medical history of Mr Merry included in the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") disclosed that on enlistment a medical board noted that he was of, "Poor physique - Class B". The records of the medical examination of Mr Merry prior to discharge do not contain any mention by him or the medical officer, of any signs or symptoms suggestive of urogenital abnormality.

The applicant did not seek to relate cigarette smoking to the death of her husband. However she considered it was significant that her husband had scarlet fever prior to enlistment and dengue fever during service in New Guinea. The hypotheses appeared to be that these fevers affected the white blood cells and this reaction eventually made the deceased more susceptible to developing cancer. Included at page 2 of the T documents is a portion of a report of some years ago from the Walter and Eliza Hall Institute of Medical Research regarding another person who had developed monocytic leukaemia some 23 years after service. This report which has not been reproduced in full in the T documents reads in part:

"(b) It is common for the initiation of cancer to be followed by a long lag period of apparently perfect health until cancer or leukaemia subsequently develops. This lag period is commonly a major fraction of the life-span of an animal (a period equivalent to 10-30 years in man) and in man this period would be expected to be entirely symptom-free."

The applicant gave evidence that since her husband's return from war service he had been regularly seen by doctors and that although he was in poor health for many years his carcinoma of the prostate was not diagnosed until 9 months or so before his death; his main illnesses related to his stomach, his bowels and his anxiety state. In the present case no medical evidence was tendered on behalf of the applicant. There was no evidence before the Tribunal relating to carcinoma of the prostate and the hypotheses put forward regarding leukaemia in the extract from the Walter and Eliza Hall Institute of Medical Research report.

The only medical opinion before the Tribunal is that of Dr Yates (T8) . He is unequivocal that there is no connection between the development of prostatic carcinoma and Mr Merry's service. Nor does he relate smoking or emotional state to the cause of death. Carcinoma of the prostate is characteristically a disease of old age. The cause is not known.

In Re Broomhead and Repatriation Commission (unreported) Decision No. 6204 the Tribunal (Deputy President Burns, Members Linn and Rogers) also had to consider an application concerning death due to carcinoma of the prostate. In that application a number of factors were put forward to ascertain whether any reasonable hypotheses may exist to connect the death of the veteran with his war service. The factors were diet, vitamin deficiency, bowel infection, stress, anxiety and depression. Each were examined by two cancer experts. The Tribunal decided that none of the factors raised a reasonable hypotheses which would connect any one of them with the cancer from which the veteran died.

In our opinion the evidence of the applicant and the documentary material before the Tribunal does not give rise to a reasonable hypotheses providing the necessary link between war-service and death. There is simply no evidence to which the Tribunal can point, to establish the link. The hypotheses must be pointed to by the facts even though not proved on the balance of probabilities: See East v Repatriation Commission [1987] FCA 242; 74 ALR 518 at 534 and [1987] FCA 242; 6 AAR 492 at 507.

In the present circumstances we are satisfied beyond reasonable doubt of the absence of any causal link to enable a determination be made in favour of the applicant.

For these reasons the decision under review is affirmed.