respondent. The Tribunal affirmed the decision under review, finding that the material did not raise a reasonable hypothesis connecting Mr Bird’s death with his operational service.
Key principles
For a claim based on operational service, the Tribunal applied the reasonable-hypothesis approach described under ss 120(1) and 120(3) of the Veterans Entitlements Act 1986 and...
Although the Tribunal found on the balance of probabilities that Mr Bird had hypertension, the material did not establish a reasonable hypothesis connecting his death with...
Issues before the court
Whether Mr Bird’s death was war-caused for the purpose of Mrs Bird’s war widow’s pension claim.
Whether Mr Bird had hypertension.
Whether the proposed alcohol-related hypertension hypothesis conformed to the relevant SOP and was connected to service.
The operation of the reasonable-hypothesis approach and the role of fact-finding.
Cited legislation
1 cited instrument linked from this judgment.
Plain English Summary
Mrs Bird argued that her husband’s wartime experiences led him to drink, that drinking contributed to hypertension, and that hypertension contributed to his death. The Tribunal accepted that he had hypertension, but the relevant SOP required evidence about alcohol consumption at the time the hypertension began. The record did not establish when that was or how much he drank then. It also did not establish that his drinking was connected to service. The Tribunal therefore affirmed the Repatriation Commission’s decision.
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Deep Dive
1,974 words · generated 29/09/2026
What happened
Margaret Bird applied for a war widow’s pension after her husband, Frederick Bird, died on 21 June 2007. Mr Bird had served in the Royal Australian Air Force from June 1942 to November 1945. Because he served in New Guinea, the Tribunal treated his whole service as operational service for the purposes of the Veterans Entitlements Act 1986 (the Act) [2].
Mrs Bird’s case was a chain of causation: she said service-related stress led Mr Bird to drink excessively, the drinking led to hypertension, and hypertension contributed to his death. The Repatriation Commission disputed the links in that chain. The death certificate recorded myocardial infarction, renal failure and multiple myeloma in Part I, and renal calculi, atrial fibrillation and amyloidosis in Part II [3]. The Tribunal said it was not disputed that the kind of death was ischaemic heart disease [8].
The claim had already been unsuccessful before the Veterans Review Board, which affirmed the Commission’s decision [10 and 36, on the sequential paragraph numbering used in the supplied text]. The Administrative Appeals Tribunal heard the matter on 22 February 2010 and, on 12 March 2010, affirmed the decision under review.
The Tribunal made an important distinction between two questions. First, it had to consider whether Mr Bird had hypertension as a matter of fact. It decided that he did, on the balance of probabilities [9, 21–22]. Second, it had to consider whether there was a reasonable hypothesis connecting the relevant condition and death with service, applying the Act and the relevant Statement of Principles. On that second question, it found the evidence insufficient [23–25, 36–40].
Why the court decided this way
The decision was made by an Administrative Appeals Tribunal panel, not a court. Its reasoning turned on the evidentiary requirements of the hypertension Statement of Principles (SOP) and the service connection asserted by Mrs Bird.
The Tribunal considered competing medical evidence about hypertension. Professor O’Rourke found no clear evidence in the medical records that Mr Bird had hypertension. He considered that a single blood pressure reading of 150/70 was not enough: in his view, diagnosis required a persistent and permanent high reading [13–14]. He also considered that Ramipril had been prescribed for cardiac failure rather than blood pressure, relying particularly on the general practitioner’s notes [12–13].
Dr Anderson considered that hypertension could not be ruled out. He noted that Ramipril could lower blood pressure, whatever the reason it had been prescribed, and referred to Dr Wickham’s two statements that Mr Bird had been treated for hypertension or had a history of it [15–17]. The Tribunal also considered evidence of left ventricular wall thickening, which could be consistent with long-term hypertension, although it was not conclusive [20]. It ultimately gave weight to the GP’s statements, the possible significance of the medication and cardiac finding, and Mrs Bird’s evidence about blood-pressure medication. It found hypertension on the balance of probabilities [21–22].
That factual finding did not resolve the claim. Mrs Bird relied on two SOPs: an ischaemic heart disease SOP with a factor concerning hypertension before clinical onset, and a hypertension SOP with a factor requiring alcohol consumption averaging at least 200 grams per week, not reducible below that average, at the time of clinical onset [7]. The Tribunal focused on the timing specified by the hypertension factor. It found there was no evidence of when hypertension clinically began, and no evidence of how much Mr Bird drank at that time [25].
The Tribunal also examined the evidence about alcohol and service. Mrs Bird’s evidence was that Mr Bird drank socially, usually in company, and sometimes drank up to 10 schooners in an evening [29–30]. However, the evidence did not establish his consumption at the relevant onset date. His own health assessments recorded different reported levels of alcohol consumption in 2001 and 2002 [32]. Mrs Bird did not dispute those records [32]. The Tribunal described the evidence about when he began drinking as inconclusive and observed that no one could say for sure whether he started while serving [37].
The service connection was a separate gap. Mr Bird served in Darwin during a period that included Japanese bombing raids and later worked on airfield construction in New Guinea [26]. Dr Anderson thought it likely that a young serviceman exposed to such stresses and an Air Force drinking culture would take up drinking, although he could not say for sure [34]. The Tribunal did not treat that possibility as enough. It considered that Mr Bird had not recounted specific service incidents or stresses to his family, and that the reported fluctuations in his drinking were associated with later pressures such as farm work or personal bereavements, not service [33, 35]. It concluded that the evidence did not establish a causal connection between his drinking and his service [39].
Before and after state of the law
The decision does not purport to change the law. It applies the statutory approach to operational-service claims and describes the steps it understood from Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391. The Tribunal stated that it had to determine whether the proposed hypothesis was reasonable because it conformed to a relevant SOP. If the hypothesis did not conform, the claim failed. If it did conform, the next question was whether the Tribunal was satisfied beyond reasonable doubt that the condition was not war-caused [5–6].
The Tribunal also emphasised that the threshold question was not itself a fact-finding exercise. As it put it, “No finding of fact arises in determining whether or not a reasonable hypothesis exists” [6]. Fact-finding arises at the later stage described in that paragraph. In this case, the Tribunal’s conclusion was that the hypothesis was not raised by the available material, so it did not reach the further question of whether it was satisfied beyond reasonable doubt that the condition was not war-caused [40].
The decision’s practical contribution is therefore an illustration of evidentiary application, not a new general rule. A finding that the claimed condition existed did not itself satisfy the SOP or establish the service connection. The Tribunal accepted hypertension, but still required evidence addressing the particular SOP factor and the proposed link to service [22–25, 36–40].
The supplied judgment identifies the Act and the Deledio decision but does not set out the full text of either source. The account above is limited to the statutory provisions and Deledio approach as the Tribunal described them.
Key passages with plain-English translation
“No finding of fact arises in determining whether or not a reasonable hypothesis exists” [6].
Plain English: the Tribunal described the reasonable-hypothesis question as a threshold assessment of whether the proposed connection is supported and fits the relevant SOP. It distinguished that assessment from the later question involving factual satisfaction beyond reasonable doubt.
“Factor 6(b) in the SOP for hypertension requires the consumption of the specified amount of alcohol at the time of the clinical onset of hypertension” [24].
Plain English: it was not enough to show generally that Mr Bird drank. The relevant factor required information about his drinking when the hypertension began.
“There is no evidence before us about the clinical onset of his hypertension” [36].
Plain English: the Tribunal had no identified date against which it could assess the alcohol evidence under that SOP factor. The finding that hypertension existed before death could not fill that timing gap.
“The evidence does not point to a causal connection between Mr Bird’s drinking and his service” [39].
Plain English: even if the evidence could have supported the required drinking level, the Tribunal found it did not connect his drinking to his wartime service.
“We are not satisfied that a reasonable hypothesis connecting Mr Bird’s death with his service is raised by the material before us” [40].
Plain English: the material did not clear the threshold the Tribunal considered necessary for the claim to proceed under the operational-service approach.
What fact patterns trigger this precedent
This decision is relevant as an illustration where a claim for a veteran-related benefit depends on a multi-step causal hypothesis, and a particular SOP factor specifies a condition, exposure or behaviour at a defined time. Here, the asserted chain ran from service-related stress to alcohol consumption, then to hypertension, and ultimately to death [1, 23–25].
The key feature was not simply that the veteran had a relevant condition. The Tribunal accepted that Mr Bird had hypertension, but the SOP factor relied on required a particular alcohol-consumption level at the clinical onset of hypertension [22, 24]. Where the onset date and the level of consumption at that time are not established, the evidence may be unable to address that factor. That is the evidentiary problem this Tribunal identified, not a rule that all claims lacking a precise date must fail.
The case also illustrates the difference between evidence that a causal link is possible and material that supports the hypothesis under the applicable framework. Dr Anderson considered a service connection likely or possible, given the circumstances of service and a perceived drinking culture [34]. The Tribunal nevertheless found that the evidence did not show that Mr Bird’s drinking was related to service [39–40]. It also considered the absence of specific accounts of service stress and the fact that later drinking fluctuations were linked to non-service events [33, 35, 39].
The decision should be read in the context of the particular SOPs and evidence before the Tribunal. It does not establish that evidence about alcohol, service stress or hypertension will be assessed the same way in every case.
How later courts have treated it
The supplied judgment contains no discussion of later decisions treating this AATA decision. It therefore provides no basis to say whether a later court or tribunal followed, distinguished, approved or criticised this decision.
The only identified precedent in the reasons is Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391, which the Tribunal said set out the steps to be followed in applying the reasonable-hypothesis approach [6]. This is the AATA’s description and application of Deledio, not evidence of later treatment of Bird.
A researcher examining later treatment would need sources beyond the judgment supplied here. No subsequent-case history is stated in this analysis.
Still-open questions
The Tribunal resolved the application before it, but its reasons leave factual and legal questions unanswered because they were not necessary to its conclusion.
First, the evidence did not identify when Mr Bird’s hypertension clinically began [25, 36]. The Tribunal did not make a finding about an onset date. It therefore did not assess a specific alcohol-consumption figure against a specific onset date.
Second, the evidence about the amount and timing of drinking was incomplete. The Tribunal had Mrs Bird’s recollections, the 2001 and 2002 health-assessment entries, and the 2007 questionnaire, but found that the evidence did not establish drinking at the SOP level at the relevant onset time [31–32, 37–38]. It did not determine that Mr Bird never drank at that level.
Third, the Tribunal did not decide whether the asserted service experiences in fact caused stress for Mr Bird. It considered the evidence, including the bombing raids, the living conditions described by Mrs Bird, and the lack of specific accounts from Mr Bird, but concluded that the material did not connect his drinking to service [26–27, 34–35, 39].
Finally, the reasons do not determine how other SOP factors or different evidence might affect a similar claim. The Tribunal relied on the factors Mrs Bird invoked and the record before it. The result is a fact-specific application: hypertension was found, but the evidence did not support the required timing and service-connection elements of the hypothesis advanced.
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Judgment (26 paragraphs)
[1]
Bird and Repatriation Commission [2010] AATA 171 (12 March 2010)
VETERANS' AFFAIRS - War Widow's Pension - whether death related to operational service - hypertension - ischaemic heart disease - evidence does not suggest alcohol use related to service - decision under review affirmed.
Frederick Bird served in the Royal Australian Air Force from June 1942 to November 1945. He died on 21 June 2007. His widow, Margaret Bird, claims a war widow's pension on the ground that the stress of his service led to excessive drinking which in turn led to hypertension and, eventually, to his death. The respondent disputes that Mr Bird's death was related to his service.
Mr Bird served in New Guinea and so the whole of his service is operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).
According to his death certificate, the cause of Mr Bird's death was:
It is not in dispute that the kind of death suffered by Mr Bird was ischaemic heart disease. However, the respondent contends that he did not suffer from hypertension as Mrs Bird claims; that, even if he had hypertension, it was not on account of his drinking; and that, even if it was, his drinking was not related to his service.
[11]
By s 13 of the Act, Mrs Bird will be entitled to a widow's pension if her husband's death was "war-caused" within the meaning of s 8(1). The relevant criterion in this case is whether Mr Bird's death "arose out of, or was attributable to", any eligible war service rendered by him.
[12]
As Mrs Bird's claim arises out of her husband's operational service, the standard of reasonable hypothesis applies: s 120(1) and s 120(3). We have to determine whether the hypothesis that Mr Bird's hypertension was related to his service is reasonable because it conforms to a relevant Statement of Principles (SOP). If it does not, then the hypothesis will not be reasonable and the claim will fail. If the hypothesis conforms to a relevant SOP, we must then consider whether we are satisfied, beyond reasonable doubt, that Mr Bird's hypertension was not war-caused.
The steps to be followed in making our determination are set out in Repatriation Commission v Deledio [1998] FCA 391; (1998)83 FCR 82. No finding of fact arises in determining whether or not a reasonable hypothesis exists. It is only in determining whether we are satisfied, beyond reasonable doubt, that a condition was not war-caused that any fact-finding arises.
[13]
Factor 6(a) - having hypertension before the clinical onset of ischaemic heart disease
[14]
No 35 of 2003 Hypertension as amended by No 3 of 2004 and No 11 of 2008
[15]
Factor 6(b) - consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension
[16]
There is no dispute, and we are satisfied on the basis of Mr Bird's death certificate, that his kind of death was ischaemic heart disease.
Mrs Bird contends that her husband suffered from hypertension and that it played a material role in his death. The respondent disputes that Mr Bird had hypertension. Whether he had that condition is a matter of fact to be determined on the balance of probabilities.
Mrs Bird gave evidence before the Tribunal as well as before the Veterans Review Board (which affirmed the respondent's decision). Her son, Trevor Bird, gave evidence before the Board, but not before us.
Mrs Bird gave evidence that her husband had high blood pressure from the early 1990s. She recalls him taking medication for high blood pressure, she thinks once a day, but she cannot recall its name. According to the written reasons of the Veterans Review Board, Trevor Bird also recalled his father taking medication for blood pressure, although he could not recall for how long.
Professor Michael O'Rourke, cardiologist at St Vincent's Hospital in Sydney, reviewed medical records and other documents concerning Mr Bird. The documents included clinical notes of Dr Warwick Wickham, Mr Bird's general practitioner from 1991 to 2007, and from Port Macquarie Base Hospital including notes and reports from Dr Kevin Alford, Mr Bird's treating cardiologist.
In a written report and in oral evidence, Professor O'Rourke concluded there was no evidence in the documents before him that Mr Bird suffered from hypertension. Professor O'Rourke could find nothing in Mr Bird's treatment history to suggest he was being treated for hypertension. He noted that Mr Bird had been prescribed Ramipril, a drug that is prescribed for elevated blood pressure as well as for cardiac failure. However, based in particular on Dr Wickham's notes, Professor O'Rourke concluded that Mr Bird had been prescribed Ramipril for cardiac failure rather than for blood pressure.
Further, Professor O'Rourke found nothing in Mr Bird's numerous blood pressure readings to indicate hypertension. He thought only one, a reading of 150/70, was above normal and was "highish". However, he said, a persistent and permanent high reading is required before hypertension can be diagnosed; a single reading of 150/70 would not amount to hypertension.
Professor O'Rourke also noted that, according to a report from Dr Alford, Mr Bird had denied any history of hypertension and, further, that alcohol did not appear anywhere as a clinical feature in relation to any of his medical conditions.
[17]
Mr Bird was being treated with (sic) hypertension prior to his death....
[18]
Dr Wickham made a similar reference in a letter in April 2008 to another advocate, in which he wrote:
[19]
Although [Mr Bird] had a past history of hypertension...
[20]
We note that, on both occasions, Dr Wickham also stated that Mr Bird's hypertension could not be related to his war service.
Professor O'Rourke maintained that these statements were not borne out by other evidence, in particular from Mr Bird's treating cardiologist, Dr Alford. In fact, Dr Alford stated in one report that Mr Bird had denied a history of hypertension. However, Professor O'Rourke noted that an echo-doppler study of Mr Bird's heart conducted in July 2003 showed "marked thickening of the left ventricular walls" which Dr Alford noted "is sometimes seen in long term hypertension ...". Professor O'Rourke agreed that this thickening could be consistent with hypertension.
It is difficult to know what to make of the references to hypertension in Dr Wickham's letters. However, he was Mr Bird's treating general practitioner for many years and we cannot dismiss his clear statements to the effect that Mr Bird suffered from hypertension. Nor should we dismiss the possibility that Mr Bird had been prescribed Ramipril for hypertension.
Taking into account the references in Dr Wickham's letters to Mr Bird's hypertension, that thickening of the ventricular walls may be consistent with hypertension, that Mr Bird had been prescribed Ramipril, and given the evidence of Mrs Bird (and Trevor Bird before the Veterans Review Board) that he took medication for high blood pressure, we are satisfied, on the balance of probabilities, that Mr Bird suffered from hypertension before his death.
[21]
Was Mr Bird's hypertension connected to his operational service
[22]
For the hypothesis contended for by Mrs Bird to be made out, there must be material before us capable of supporting it.
Factor 6(b) in the SOP for hypertension requires the consumption of the specified amount of alcohol at the time of the clinical onset of hypertension.
Mrs Bird contends that her husband's drinking was of such long-standing that it is reasonable to conclude it was at the required level at the onset of his hypertension. However, there is no evidence before us about the date of clinical onset of Mr Bird's hypertension. We have only a report from Dr Wickham that it was "long-standing" and that Mr Bird was being treated for it at the time of his death. Nor have we any evidence about the amount of alcohol Mr Bird was consuming at the time of the onset of hypertension.
Mr Bird's service records show that he enlisted in the Royal Australian Air Force in June 1942 at the age of 18. He spent approximately six months in Darwin working on airfield construction, during which time there were several Japanese bombing raids. From July to October 1944, and from May to October 1945, he was in New Guinea, where he was worked on airfield construction.
Mr and Mrs Bird met in 1957 and married in 1959. He did not talk to her a great deal about his service. She knows he was engaged in airfield construction in Darwin and New Guinea, she thinks as a "general hand". While she recalls him saying a few things such as that service was "stressful", Mrs Bird could not recall specifically anything that he said in this regard. She thinks it was "a bit scary" at times when Japanese forces were not far away. She thinks living conditions in both Darwin and New Guinea were "pretty rugged" because conditions were basic and the men lived in tents.
Mrs Bird told us that her husband had never been away from his family before enlisting and she thinks he started drinking then because things were stressful, and for companionship.
Mrs Bird told us that, when they met, her husband was a lovely, considerate person; they would socialise a lot, always going to balls and dances. She recalled that the men would go outside to get beer from the boots of their cars and said it seemed to be something they all did. She told us she did not know a lot about her husband's drinking but he was an honest person, including about his drinking. He always drank beer; he drank in company and seldom at home although in later life, they would have red wine at home in the evening.
[23]
We are satisfied that Mr Bird suffered from hypertension. There is no evidence before us about the clinical onset of his hypertension.
The evidence is inconclusive as to when Mr Bird started drinking. It is possible that he started drinking while engaged on service but no one can say for sure. Despite their best efforts, Mrs Bird and her son have been unable to find out anything about when Mr Bird started drinking. All we know is that, by the time Mr and Mrs Bird met, 12 years after he was discharged, he would drink. There is no evidence pointing to whether or not he drank at the level required by the SOP at the clinical onset of his hypertension.
The evidence about the level of Mr Bird's drinking suggests that he was a moderate, social drinker. However, even if the material before us indicated that he drank at the required level, it does not point to a connection with his service.
The evidence does not point to a causal connection between Mr Bird's drinking and his service. The evidence does not point to the fact that Mr Bird found service particularly stressful. There is nothing in his conduct during their marriage that Mrs Bird can point to that indicates that he found service stressful or that linked it to his drinking. If he drank more when things were stressful, Mrs Bird's evidence was that the stressors were unrelated to his service.
We are not satisfied that a reasonable hypothesis connecting Mr Bird's death with his service is raised by the material before us. We affirm the decision under review.
Representative for the Applicant Mr Andrew Kemp, Kemp & Co. Lawyers
[26]
Representative for the Respondent: Ms Jane Warmoll, AGS
Parties
Applicant/Plaintiff:
Repatriation Commission
Respondent/Defendant:
Deledio
Legislation Cited (1)
Entitlements Act 1986
AI Analysis
Outcomerespondent
Disposition:
The Tribunal affirmed the decision under review, finding that the material did not raise a reasonable hypothesis connecting Mr Bird’s death with his operational service.
Dr Tim Anderson, occupational physician, also examined Mr Bird's medical and other records. While he could not be sure that Mr Bird had hypertension, he thought that possibility could not be discounted. He agreed with Professor O'Rourke that only one of Mr Bird's numerous blood pressure readings appeared high. However, he thought that was to be expected, given that he was taking Ramipril, which would have the effect of lowering his blood pressure, regardless of the condition for which it had been prescribed. Dr Anderson acknowledged that Ramipril may be prescribed for other conditions but, as Mr Bird's medical records did not indicate why he was taking Ramipril, Dr Anderson thought hypertension could not be discounted.
Dr Anderson also noted that Dr Wickham referred on two occasions to Mr Bird being treated for hypertension. In a letter in August 2007 to a veterans' advocate, Dr Wickham stated:
During their marriage, Mr Bird would go to the local hotel or club two or three times a week, and on the weekend when he played bowls. Mrs Bird joined him in the late 1970s after their children had grown up and she took up bowls. She recalls him sometimes coming home happy, sometimes upset; he could always still walk but would sometimes be "a bit wobbly". He had been known to drink up to 10 schooners of beer in an evening.
In an alcohol questionnaire completed in September 2007, Mrs Bird indicated that her husband started drinking about four schooners of beer two to three times each week in 1943 due to "separation from family and friends". There is no reason to doubt her belief but the basis for this statement is not clear and appears to be speculation. Mrs Bird gave evidence that she never knew much about her husband's drinking and that he seldom drank at home. She estimates that, just prior to his death, he was drinking four schooners of beer on two days each week and two x 100ml of wine every day.
Dr Wickham's clinical notes include a health assessment checklist completed in April 2001. Mr Bird told Dr Wickham at that time that he drank 30 to 40 grams of alcohol two to four times a week and that he would have six or more standard drinks "monthly or less". When Dr Wickham completed the same form in April 2002, Mr Bird reported that he drank 20 grams of wine "5+ times per week" and never drank six or more standard drinks. Mrs Bird does not dispute any of these amounts; she believes her husband would have been honest with anyone else about his drinking, as he was with her.
Mrs Bird told us that her husband's drinking would increase at times, depending on what was happening. For instance, when times on their farm were busy, he might not drink at all for two weeks; at other times he would drink more, if things stressed him, for instance if something went wrong on the farm or someone near him died. She thought these fluctuations would have been common before their marriage as well although the basis for this is not clear. There is nothing to suggest that there was any connection to Mr Bird's wartime experiences in these fluctuations.
It was submitted for Mrs Bird that Darwin was subjected to numerous bombing raids in the time her husband was there and that he would naturally have found the experience very stressful. Dr Anderson thought it very likely that a young man, exposed to the stresses of work near Japanese bombing raids, and to a drinking culture in the air force, would take up drinking. He could not say for sure, but he could not discount the possibility that Mr Bird's drinking was related to his service and thought it very likely that it was.
It appears, from the written reasons of the Veterans Review Board, that Trevor Bird had tried to find out from family and old friends about his father's drinking in the twelve years between his discharge and his marriage, but he had been unable to learn anything. He surmised that his father would have been close to bombing, because the Japanese would have targeted airfields, but his father "had not recounted any specific incidents, concerns or stresses". There is nothing to suggest that the reasons do not accurately reflect what Trevor Bird told the Board.