Armstrong and Repatriation Commission (Veterans’ entitlements) - [2015] AATA 566

Armstrong and Repatriation Commission (Veterans’ entitlements) [2015] AATA 566 (5 August 2015)

Division

Veterans’ Appeals Division

File Number

2013/5055

Re

PAMELA JEAN ARMSTRONG

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Dr Gordon Hughes, Member

Date 5 August 2015

Place Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that the applicant qualified for widow’s pension from 5 January 2012.

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CATCHWORDS
VETERANS’ ENTITLEMENTS - widows' pension – whether death of veteran ‘war caused’ - excessive alcohol intake during full time Army service between 1975 and 1983 – death from ischaemic heart disease, with hypertension a contributing factor – whether Army service contributed to hypertension – "drinking culture" in the regular Army – whether exposure to a "drinking culture" which contributed to hypertension means that the hypertension arose out of or was attributable to defence service.
LEGISLATION
Veterans' Entitlements Act 1986 ss 70(5)(a), 120(1)
CASES
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 49 ALD 193
SECONDARY MATERIALS
Statement of Principles Concerning Hypertension No. 64 of 2013Statement of Principles Concerning Ischaemic Heart Disease No. 90 of 2007
REASONS FOR DECISION
5 August 2015
Background

A claim by the applicant for widows' pension was refused by the respondent on 10 July 2012. This decision was affirmed by the Veterans' Review Board on 12 July 2013.
The applicant's husband Fred Carlisle Armstrong (Mr Armstrong) died of ischaemic heart disease on 27 July 2009, aged 80 years. He had served in the regular Army between 18 September 1979 and 24 October 1983 as an Army chaplain. Previously he had served in the Citizen Military Forces (CMF) part-time between 24 February and 30 December 1949, and between 10 April 1963 and 17 September 1979. After retiring at the age of 55 years, he worked variously as a hospital chaplain, religious instruction teacher, security officer and locum priest.
The deceased had a record of exemplary service in the Army. Upon his retirement in 1983, the following was included in his service record:
Chaplain Armstrong is a dedicated officer who has contributed immensely to the welfare of all servicemen and their families in the Area.
He has constantly sought to improve his knowledge and his new skills have been most effective in the consulting of young soldiers.
He is readily accepted and respected by all ranks in the Broadmeadows Area and his retirement will be a loss to the Army.
Notwithstanding his impressive record of service, according to his widow the deceased drank heavily during his time in the Army. He died from ischaemic heart disease, consequent upon hypertension, 26 years after being discharged from the Army. It was acknowledged that there was a link between his period of heavy drinking and his heart condition. The issue before the Tribunal was whether, and to what extent, there was a link between his service in the Army and the development of his drinking habits.
Legislation
Section 70(5)(a) of the Veterans' Entitlements Act1986 provides:
For the purposes of…

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: [2015] AATA 566
Decision Date: 5 August 2015

CaseChat Overview and Summary

The parties involved in the case were Armstrong and the Repatriation Commission. The dispute pertained to the entitlement of the applicant, Armstrong, to a widow's pension. Armstrong sought the pension on the basis that the death of her husband, a veteran, was "war caused," as defined under the relevant legislation. The case was heard by the Administrative Appeals Tribunal (AAT), an Australian administrative law body.

The primary legal issue the AAT had to resolve was whether the death of the veteran was "war caused" under the applicable legislation. Specifically, the AAT had to determine if the veteran's hypertension, which contributed to his ischaemic heart disease, was attributable to his service in the Army. The evidence presented included the veteran's excessive alcohol intake during his service, the existence of a "drinking culture" in the regular Army, and whether this exposure to the drinking culture contributed to the hypertension.

The AAT found that the veteran's hypertension, which was a contributing factor to his death, likely arose from his service in the Army. The tribunal considered the "drinking culture" in the regular Army and its potential impact on the veteran's health. The AAT concluded that the hypertension could be attributed to the veteran's Army service, leading to the finding that the veteran's death was "war caused." Consequently, the AAT determined that the applicant was entitled to the widow's pension from 5 January 2012.

The final orders of the AAT set aside the previous decision and substituted a decision that Armstrong qualified for the widow's pension starting from 5 January 2012. This decision recognised the veteran's service as the contributing factor to his hypertension and, ultimately, his death.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In light of this evidence, the Tribunal cannot be satisfied beyond a reasonable doubt that the hypertension which ultimately contributed to the deceased's death did not arise as a direct consequence of his service in the Army. Decision The Tribunal cannot be satisfied beyond a reasonable doubt that there are no sufficient grounds for determining that the veteran’s death was war caused. For the reasons set out above, the Tribunal sets aside the decision under review and substitutes a decision that the applicant qualified for widow’s pension from 5 January 2012.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	Veterans’ Appeals Division
File Number	2013/5055
Re	PAMELA JEAN ARMSTRONG
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Dr Gordon Hughes, Member
Date	5 August 2015
Place	Melbourne