Austin and Repatriation Commission - [2001] AATA 810

DECISION AND REASONS FOR DECISION [2001] AATA 810

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/618

VETERANS APPEALS DIVISION        )
           Re      LYNETTE MARGARET AUSTIN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Dr P Fricker, Member Mr A Argent, Member

Date18 September 2001
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in substitution decides that widow's pension is payable to Mrs Austin in respect of the war-caused death of her husband, with effect from 10 June 1998.
  (Sgd) Joan Dwyer
  Senior Member

WIDOW'S PENSION – late veteran in Royal Australian Navy - only a light smoker prior to voyage which included 10 days operational service - whether service as a mechanical engineer engaged below deck during operational service in Vung Tau Harbour Vietnam contributed to increased smoking habit – evidence from fellow sailor as to stres and anxiety on voyage and as to veteran's smoking habit - excerpt from book "The Vung Tau Ferry and Escort Ships" where Lieutenant Commander Knott of HMAS Duchess wrote of suffering of those serving below decks as loud explosions reverberated through the ship – decision set aside

Veterans Entitlement Act 1986 s120(1) and (3)

Statement of Principles Instrument No. 38 of 1999

Gorton v Repatriation Commission [2001] FCA 286

Repatriation Commission v Deledio (1998) 27 AAR 144

REASONS FOR DECISION

18 September 2001 Mrs Joan Dwyer, Senior Member Dr P Fricker, Member Mr A Argent, Member

This is an application for review of a decision of the Repatriation Commission made 11 September 1998 and affirmed by the Veterans Review Board on 17 March 2000. That decision refused Mrs Austin's claim for war widow's pension under s 8 of the Veterans Entitlement Act 1986 ("the Act"). Mr Liefman, a solicitor, appeared for Mrs Austin. Mr Herman, an advocate with the Department of Veterans Affairs, appeared for the Repatriation Commission.
The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits tendered during the hearing. Mrs Austin gave evidence. Evidence on her behalf was also given by Mr Cardwell who served with Mr Austin as a junior recruit in HMAS Leeuwin and as an ordinary seaman in HMAS Yarra. Mr Austin died suddenly at age 43 as a result of a heart attack on 8 July 1993. He was a smoker. The issue is whether his death can be found to be war caused under s 8 of the Act by reason of his smoking.
Mr Austin served in the Royal Australian Navy from 5 January 1966 to 4 January 1986. He enlisted as a 16 year old junior recruit. His 20 years of service included a period of some 10 days, from 22 December 1967 to 1 January 1968, of eligible and operational service, being part of a voyage whilst serving in HMAS Yarra. It also includes a period of eligible service from 1972 to 1986 but that period…

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.

Continue reading Austin and Repatriation Commission

Details

AGLC: Austin and Repatriation Commission [2001] AATA 810
Case: [2001] AATA 810
Decision Date: 18 September 2001

CaseChat Overview and Summary

This case involves an application for review by Lynette Margaret Austin against the Repatriation Commission's decision to refuse her claim for war widow's pension under the Veterans Entitlement Act 1986. The central issue before the Tribunal was whether Mr Austin's death could be found to be war-caused due to his smoking habit, which allegedly increased during his operational service in Vung Tau Harbour, Vietnam.

The Tribunal had to determine if there was a reasonable hypothesis connecting Mr Austin's smoking habit with his operational service. The evidence presented included testimony from Mrs Austin and Mr Cardwell, a fellow sailor, who both noted an increase in Mr Austin's smoking after his operational service in Vung Tau. Additionally, an excerpt from the book "The Vung Tau Ferry and Escort Ships" described the suffering of those serving below decks due to loud explosions, which could have contributed to increased smoking. The Tribunal had to assess whether this evidence met the criteria outlined in the relevant Statement of Principles for ischaemic heart disease.

The Tribunal concluded that the evidence did raise a reasonable hypothesis that Mr Austin increased his smoking habit during his operational service, which could have contributed to his ischaemic heart disease. While there were some inconsistencies in Mrs Austin's testimony regarding her husband's smoking habits, the Tribunal found that these did not preclude a determination that Mr Austin's death was war-caused. The Tribunal set aside the original decision and found that widow's pension was payable to Mrs Austin from 10 June 1998.

The final orders of the Tribunal were that the decision under review was set aside and that Lynette Margaret Austin was to be paid widow's pension in respect of the war-caused death of her husband, with effect from 10 June 1998.

Orders