Armstrong and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 792

Armstrong and Repatriation Commission (Veterans’ entitlements) [2016] AATA 792 (10 October 2016)

Division:  VETERANS’ APPEALS DIVISION
File Number:  2013/5055
Re:  PAMELA JEAN ARMSTRONG
APPLICANT

And:REPATRIATION COMMISSION
RESPONDENT

DECISION
Tribunal  Deputy President S A Forgie
Date  10 October 2016
Place  Melbourne

The Tribunal decides to:
affirm the decision of the Repatriation Commission dated 10 July 2012 and affirmed by the decision of the Veterans’ Review Board dated 12 July 2013.

…………[sgd]………….
Deputy President

CATCHWORDS – VETERANS’ ENTITLEMENTS – widow’s pension – death due to ischaemic heart disease contributed to in part by hypertension - whether death defence‑caused - whether veteran consumed, on average, at least 50 standard drinks per week in six month period prior to clinical onset of hypertension – decision affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 s 37
Defence Act 1903 ss 4(1), 17, 19(1), 19(3)
Military Compensation Act 1994
Veterans’ Entitlements Act 1986 ss 5AB(1), 5AB(2), 14(1), 14(3), 68(1), 69, 69(1), 69A, 69B, 70, 70(1)(a), 70(1)(c), 70(5), 70(5)(a), 70(5)(d), 120(4), 120B, 120B(1), 120B(3), 120B(4), 196B, 196B(3), 196B(14)
Amendment Statement of Principles No 12 of 2008
Amendment Statement of Principles No 4 of 2004
Statement of Principles No 2 of 2016; ss 9, 9(1), 10, 10(1), 10(2), 11
Statement of Principles No 36 of 2003; cll 4, 5(b), 6, 8
Statement of Principles No 64 of 2013; cll 5, 6(b), 7, 9
Statement of Principles No 90 of 2007; cll 5, 6(a), 7, 8, 9
CASES

Ogston v Repatriation Commission [1999] FCA 342; (1999) 86 FCR 578
Re Greenough and Repatriation Commission [2002] AATA 774; (2002) 70 ALD 470
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 33 AAR 370
Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108
Repatriation Commission v Smith [1987] FCA 260; (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798
Repatriation Commission v Thompson [2001] FCA 341; (2001) 32 AAR 514
REASONS FOR DECISION

On 8 October 2015, Justice Kenny made an order that the decision of a differently constituted Tribunal dated 5 August 2015 be set aside and that the matter be remitted to the Tribunal to be tried according to law.[1] Attached to and numbered consecutively with the order was a document that had been prepared by the solicitors for Mrs Armstrong and for the Repatriation Commission. It set out the matters justifying the making of the consent orders. Included in the document was a statement representing the issue that I must decide on remittal:
“The Tribunal should have considered whether, on the balance of probabilities, the applicant’s late husband’s death arose out of, or was attributable to, any defence service.”
[1] Federal Court proceedings VID490/2015

It is not in dispute between the parties, and I find, that Mr Armstrong served both in the Citizen Military Forces (CMF) on a part-time and later a full-time basis as well as in the Army on a full-time basis. He died of ischaemic heart disease on 27…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 792
Decision Date: 10 October 2016

CaseChat Overview and Summary

In *Armstrong and Repatriation Commission (Veterans’ entitlements)*, the Administrative Appeals Tribunal considered an appeal by Mrs. Armstrong concerning claims for a widow's pension following the death of her husband, Mr. Armstrong. Mr. Armstrong's death on 27 July 2009 was attributed, in part, to ischaemic heart disease, which was linked to hypertension he had suffered for approximately 20 years prior to his death, with the initial diagnosis of hypertension occurring on 29 December 1977. The core dispute revolved around whether Mr. Armstrong's death was "defence-caused" and, specifically, whether his hypertension was contributed to by his alcohol consumption.

The Tribunal was required to determine whether Mr. Armstrong consumed, on average, at least 50 standard drinks per week in the six-month period preceding the clinical onset of his hypertension. This question was central to establishing whether his hypertension, and consequently his death, was defence-caused under the relevant veterans' entitlements legislation. The Tribunal also had to consider the evidence presented regarding Mr. Armstrong's alcohol consumption habits and the potential impact of his work in pastoral care, which involved supporting soldiers with drug and alcohol rehabilitation and dealing with traumatic events.

The Tribunal's reasoning focused on assessing the evidence of Mr. Armstrong's alcohol consumption against the threshold of 50 standard drinks per week. While Mrs. Armstrong acknowledged her husband drank, she was unable to quantify the amount, stating she only knew he "drank too much." She also noted his work in drug and alcohol counselling, which she found inconsistent with significant personal drinking, though she conceded she had not asked him about it. The Tribunal considered a Standard Drinks Guide to interpret potential consumption levels based on different beverages. Ultimately, the Tribunal affirmed the decision that the evidence did not establish that Mr. Armstrong consumed, on average, at least 50 standard drinks per week in the relevant period.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Armstrong was first diagnosed as suffering from hypertension on 29 December 1977.[2] Hypertension suffered for the previous 20 years was specified as one of the causes of Mr Armstrong’s death on 27 July 2009.[3][2] Exhibit 1 at 17a[3] T documents; T17 at 90THE EVIDENCE The written records contain the following relevant entries of information given by Mr Armstrong regarding his drinking alcohol: Mrs Armstrong lodged two claims for a pension following her late husband’s death. Together with her related applications for review and supporting statements, they are: The extract from sets out the approximate number of standard drinks represented by volume of various strengths of beer, wines and spirits (Standard Drinks Guide). Of relevance in this case are the figures for beer and red wine:“NUMBER OF STANDARD DRINKS - BEERFull strength 4.8% alc. vol285 ml glass – 1.1 standard drinks375 ml bottle or can – 1.4 standard drinks425 ml glass – 1.6 standard drinks24 x 375 ml case – 34 standard drinksMid strength 3.5% alc. vol285 ml glass – 0.8 standard drinks375 ml bottle or can – 1 standard drink425 ml glass – 1.2 standard drinks24 x 375 ml case – 24 standard drinksLow strength 2.7% alc. vol285 ml glass – 0.6 standard drinks375 ml bottle or can – 0.8 standard drinks425 ml glass – 0.9 standard drinks24 x 375 ml case – 19 standard drinksNUMBER OF STANDARD DRINKS - WINERed wine 13% alc. vol100 ml standard serve – 1 standard drink150 ml average restaurant serving – 1.5 standard drinks750 ml bottle – 7.7 standard drinks2 litre cask – 21 standard drinks4 litre cask – 41 standard drinks…”[22][22] Exhibit C Mrs Armstrong said that she was aware that her husband had conducted Drug and Alcohol counselling with the young ones. When asked how he could conduct that if he were drinking, she replied that she had never asked him. In response to the suggestion that his drinking was inconsistent with his conducting that counselling, she agreed that it was but could not say that her husband had not drunk when he had. It really upsets her to say that he did. Mrs Armstrong said that she has always known that her husband drank but not how much he drank. A long time ago, someone told her that, had he drunk that much today, he would have been over the limit for driving. She had a fit about the thought of that. At the time, all that she knew was that he drank too much. In her statement, Mrs Armstrong referred to her husband’s work:“Fred’s hours were a minimum of 8.00am (causing him to leave home between 7.00am and 7.30am) until about 4.30pm (so that on occasions he would be home by about 5.00pm to 5.30pm). He, however, usually worked longer hours. He worked with soldiers who were undertaking drug and alcohol rehabilitation. He would visit families experiencing marital difficulties. He would help soldiers with financial and legal difficulties. He would visit soldiers or members of their family in hospital. In short, he provided all aspects of pastoral care. He also endured a number of traumatic events (one example of a traumatic event was that after farewelling a discharging soldier in Broadmeadows that person was killed in a motor vehicle accident on his way home on a motorbike and Fred attended the scene). There were numerous occasions when Fred provided support to grieving families following deaths (for example, the cot death of a child while his father was on camp and on that occasion the police asked him to attend because the child’s mother would not relinquish the body).”[23][23] Exhibit A at 1-2

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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