Needs and Repatriation Commission [2014] AATA 143 (14 March 2014)

Last Updated: 14 March 2014

[2014] AATA 143

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3328
Re	Lydia Needs
	APPLICANT
And	Repatriation Commission
	RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	14 March 2014
Place	Brisbane

The decision under review is affirmed.

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Deputy President P E Hack SC

Catchwords

VETERANS’ ENTITLEMENTS – dementia – whether war caused – whether moderate to severe cerebral trauma – whether external force.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 8(1), 13, 120A(3), 196B

CASES

Benjamin v Repatriation Commission [2001] FCA 1879; 34 AAR 270 at [54]

Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280

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

SECONDARY MATERIALS

Statement of Principles, Instrument No. 22 of 2010 (as amended by Amendment Statement of Principles No 17 of 2014)

REASONS FOR DECISION

Deputy President P E Hack SC

14 March 2014

1. Mr George Needs died in March 2012 at the age of 90 years. Mr Needs was a veteran of World War II. He served in the Australian Army between December 1941 and March 1946. His service included service in the South Pacific which was operational service as that term is used in the Veterans’ Entitlements Act 1986 (Cth) (the VEA).
2. Mr Needs’ widow, Mrs Lydia Needs, lodged a claim for a war widow pension on 20 April 2012. On 6 June 2012 the Repatriation Commission refused the claim, deciding that the death of Mr Needs was not related to his service in the Australian Army. That decision was affirmed by the Veterans’ Review Board on 17 June 2013.
3. Mrs Needs seeks a review of that decision.
4. By virtue of s 13 of the VEA the Commonwealth is liable to pay pension by way of compensation to the dependants of a deceased veteran if the death of the veteran was “war-caused”. Section 8(1) of the VEA lists the circumstances under which the death of a veteran “shall be taken to have been war-caused”. That circumstance which is presently relevant is that in paragraph (b) namely,

... the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.

5. Because Mr Needs’ service was operational service the claim must be answered favourably to Mrs Needs unless the Commission, or the Tribunal in its stead, is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death of Mr Needs was war-caused.^[1] In the application of that standard the Commission, and the Tribunal, is to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Needs' death was war-caused if satisfied that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of any particular service rendered by him.^[2]
6. The reasonableness of any hypothesis is to be assessed by reference to Statements of Principles determined by the Repatriation Medical Authority. The effect of s 120A(3) of the VEA is that an hypothesis connecting 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 Statement of Principles that upholds the hypothesis. Section 196B(2) of the VEA, so far as it is presently relevant, allows the Repatriation Medical Authority to determine a Statement of Principles in respect of a particular kind of death setting out the factors that must, as a minimum, exist, and which of those factors must be related to service and to do so if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of death can be related to the operational service rendered by veterans.
7. Reference finally needs to be made to s 196B(14) which provides that a factor causing or contributing to death is related to service rendered by a person if, relevantly, it arose out of, or was attributable to, that service.
8. The first task in a case such as the present is to determine, to the reasonable satisfaction of the decision maker,^[3] the kind of death, that is, “the medical cause or causes of the death”.^[4]
9. The death certificate issued following the death of Mr Needs described the cause of death is this way:

1. (a) Aspiration pneumonia;

(b) Difficulty in swallowing;

(c) Altered level of consciousness;

(d) Dementia.
2. Fracture of left femur.

Mrs Needs contends, and the Commission accepts, that the cause of death was dementia, in particular, Alzheimer-type dementia. That condition is the subject of a Statement of Principles, Instrument No. 22 of 2010 (as amended by Amendment Statement of Principles No. 17 of 2014). The contention relies on the factor in paragraph 6(a) of the Statement:

...having moderate to severe cerebral trauma at least 10 years before the clinical onset of Alzheimer-type dementia.

The expression “moderate to severe cerebral trauma” is defined to mean,

structural injury or physiological disruption of brain function as a result of external force, manifested by at least one of the following clinical features immediately following the event:
(a) loss of consciousness lasting at least 30 minutes or posttraumatic anterograde amnesia lasting at least 24 hours;
(b) leakage of cerebrospinal fluid;
(c) injury involving penetration of the dura mater;
(d) seizures;
(e) intracranial abnormality, including:
(i) intracranial haemorrhage;
(ii) intracranial haematoma;
(iii) cerebral contusion;
(iv) hydrocephaly; or
(v) diffuse axonal injury; or
(f) a Glasgow Coma Scale score of 12 or less.
In this definition, external force includes blunt trauma; acceleration or deceleration forces; blast force; or a foreign body penetrating the brain;

10. Some further reference needs to be made to the factual background. Mr Needs was discharged from the Australian Army in March 1946 having been diagnosed with a condition described as “anxiety state”. That condition has been accepted by the Commission as a war-caused condition. Between October 1958 and November 1958 Mr Needs received “insulin shock therapy” at what was then called the Greenslopes Repatriation Hospital. That therapy, now discredited, was a form of psychiatric treatment in which patients were repeatedly injected with large doses of insulin in order to produce daily comas over several weeks. Dr Farron Young, who was Mr Needs’ general practitioner for many years from 1994, gave evidence that the injection of insulin was intended to lower sugar levels and that, when sugar levels drop, brain cells can be damaged causing brain damage. The material before me, admittedly an extract from Wikipedia, suggests that brain damage was one of the severe risks of insulin therapy.
11. Mrs Needs advanced this hypothesis. The type of death suffered was Alzheimer-type dementia. Mr Needs suffered a moderate to severe cerebral trauma in the Greenslopes Repatriation Hospital in 1958, more than 10 years prior to the onset of dementia. The repeated injections of insulin satisfied the definition of moderate to severe cerebral trauma because,
    • (a) it created a physiological disruption of brain function;
    • (b) that disruption was the result of external force, namely the injection of insulin; and,
    • (c) the disruption of brain function was manifested by at least loss of consciousness lasting at least 30 minutes.
12. The Commission accepts all elements of this formulation save that it contends that the injection of insulin cannot amount to external force. It contends that “external force” does not encompass the injection of insulin and that, for that reason, the hypothesis cannot be regarded as being reasonable in the sense that it fits within the template of the Statement of Principles. In the jurisprudence of these cases it says that the case for Mrs Needs fails at the third Delidio^[5] stage. It accepts, though, that if the contrary argument prevails then Mrs Needs’ hypothesis is reasonable, that in that event, the hypothesis cannot be excluded beyond reasonable doubt and that Mrs Needs claim must succeed.
13. The argument then comes down to a very narrow point whether physiological disruption of brain function as a result of insulin injections was the result of external force. The question is one of statutory construction. Ms Frizelle, counsel for Mrs Needs, submitted that the expression ought be construed widely. Insofar as the term was defined, it was in inclusive terms, it did exclude other types of causes even though those listed in the concluding words of the definition were more conventional examples of force. Mr Williams, for the Commission, submitted that a reading of the definition in that way gave no effect to the words, particularly “force”.
14. I accept the Commission’s argument. The matter falls to be considered by reference to the instrument as a whole. It is right to say that the only definition of the term is an inclusive one however the types of forces there used by the drafter give a context to the construction of the words. Some meaning must be given to the use of the word “force”. The drafter might have used other expressions, for example “agency” or “event”, had it been intended to identify causes as widely as Mrs Needs submits. Whilst I accept that there is material that points to Mr Needs suffering physiological disruption of brain function I cannot accept that that was the result of external force. That being so the hypothesis is not reasonable.
15. It follows that the decision under review ought be affirmed.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 14 March 2014

Date(s) of hearing	14 March 2014
Counsel for the Applicant	Ms A Frizelle
Solicitors for the Applicant	Martin Solicitors
Advocate for the Respondent	Mr B Williams, Department of Veterans' Affairs

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^[1] See s 120(1), VEA

^[2] See s 120(3), VEA

^[3] See Benjamin v Repatriation Commission [2001] FCA 1879; 34 AAR 270 at [54].

^[4] See Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280, 288 at [44].

^[5] See Repatriation Commission v Deledio ([1998] FCA 391; 1998) 83 FCR 82, 97-98.