Bawden and Repatriation Commission (Veterans' entitlements) - [2023] AATA 3961

Bawden and Repatriation Commission (Veterans' entitlements) [2023] AATA 3961 (29 November 2023)
Division:VETERANS' APPEALS DIVISION
File Number:2022/7808
Re:Julie Bawden
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:29 November 2023
Place:Brisbane

The Tribunal affirms the decision under review.
...............................[SGD]....................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – whether death was war caused – kind of death – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
STATEMENT OF PRINCIPLES
Statement of Principles concerning Chronic Obstructive Pulmonary Disease No.17 of 2023 (Cth)
CASES
Collins v Repatriation Commission [2009] FCAFC 90
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlop v Repatriation Commission [2003] FCAFC 201
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 353
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission [2005] FCAFC 23
Hill v Repatriation Commission [2009] FCAFC 91
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Willman and Repatriation Commission [2007] AATA 1480
REASONS FOR DECISION
Member D Mitchell
29 November 2023
INTRODUCTION

On 27 July 2021, Ms Julie Bawden (the Applicant) made a claim for a war widow’s pension[1] on the basis that the death of her de facto husband, the late Mr Stephen Loughran (the Veteran) was war-caused under the Veterans’ Entitlement Act 1986 (Cth) (the Act).
[1] Exhibit 1, T Documents, T39, pages 174-190, Claim for War Widow’s Pension.
On 4 August 2021, the Respondent determined that the death of the Veteran was not service related.[2] This decision was affirmed by the Veterans Review Board (the VRB) on   17 August 2022.[3]
[2]     Exhibit 1, T Documents, T40, pages 191-193, Determination dated 4 August 2021.
[3]     Exhibit 1, T Documents, T50, pages 230-242, Reviewable Decision dated 17 August 2021.
On 21 September 2022, the Applicant sought review of the VRB decision by this Tribunal.[4]
[4] Exhibit 1, T Documents, T2, pages 3-12, Application for Review of Decision.
BACKGROUND
The Veteran served in the Royal Australian Navy between 27 November 1965 and

23 July 1970 as an Engineering Mechanic.[5]
[5] Exhibit 1, T Documents, T4, page 16, Certificate of Service.
The Veteran’s service included a period of operational service between 25 May 1966 and 11 June 1966 in relation to service in Vietnam.[6]
[6] Exhibit 1, T Documents, T44, page 203, Claims History.
In November 2007, the Veteran made a claim for disability pension in relation to hearing loss, emphysema and hypertension.[7]
[7] Exhibit 1, T Documents, T16, pages 73-87, Claim for Disability Pension.
On 12 March 2008, the Respondent:[8]
(a)Accepted the Veteran’s bilateral sensorineural hearing loss and asbestos related pleural disease, finding these conditions to be related to service.
(b)Found that the Veteran’s chronic bronchitis, emphysema and hypertension conditions were not service related.
(c)Found that the Veteran was eligible for payment of a disability pension at 30% of the General Rate with effect…

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: [2023] AATA 3961
Decision Date: 29 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision by the Repatriation Commission concerning a war widow's pension. The applicant, the de facto partner of the deceased veteran, sought to have her late husband's death declared "war-caused" to qualify for a pension. The veteran had served in the Royal Australian Navy, including operational service in Vietnam, and had a history of smoking and asbestos exposure, leading to conditions such as COPD and pleural plaques.

The primary legal issue before the Tribunal was to determine whether the veteran's death, primarily from severe chronic obstructive pulmonary disease (COPD) with respiratory failure, was "war-caused" within the meaning of the *Veterans' Entitlements Act 1986* (Cth). This required assessing the causal connection between the veteran's death and his eligible war service, considering the medical causes of death and the relevant statutory provisions.

The Tribunal applied the principles established in cases such as *Collins*, *Hill*, and *Codd*, which clarify that the "kind of death" refers to the medical causes of death and requires an examination of the causal connection between the death and the circumstances of service. The Tribunal noted that while the veteran suffered from COPD and pleural plaques, and these conditions were linked to his service and smoking history, the Commission contended that COPD and hypertension had previously been found not to be service-related. Crucially, the Commission argued that even if COPD was service-related, the veteran's death from COPD was not a "real or operative factor" in his passing, and that the specific circumstances of his service did not support a causal link to the severity of his COPD.

Ultimately, the Tribunal was not satisfied beyond reasonable doubt that the veteran's death from COPD was war-caused. Consequently, the reviewable decision of the Repatriation Commission was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 21 September 2022, the Applicant sought review of the VRB decision by this Tribunal.[4] [4] Exhibit 1, T Documents, T2, pages 3-12, Application for Review of Decision.BACKGROUND The Veteran served in the Royal Australian Navy between 27 November 1965 and 23 July 1970 as an Engineering Mechanic.[5][5] Exhibit 1, T Documents, T4, page 16, Certificate of Service. The Veteran’s service included a period of operational service between 25 May 1966 and 11 June 1966 in relation to service in Vietnam.[6] [6] Exhibit 1, T Documents, T44, page 203, Claims History. In November 2007, the Veteran made a claim for disability pension in relation to hearing loss, emphysema and hypertension.[7][7] Exhibit 1, T Documents, T16, pages 73-87, Claim for Disability Pension. On 12 March 2008, the Respondent:[8](a)Accepted the Veteran’s bilateral sensorineural hearing loss and asbestos related pleural disease, finding these conditions to be related to service.(b)Found that the Veteran’s chronic bronchitis, emphysema and hypertension conditions were not service related.(c)Found that the Veteran was eligible for payment of a disability pension at 30% of the General Rate with effect from 6 August 2007.[8] Exhibit 1, T Documents, T35, pages 143-150, Decision regarding claim for Disability Pension. The Veteran was born in September 1947 and was 73 years of age when he passed away on 15 June 2021. The cause of death as stated in his Death Certificate was:[9](1)(a) Severe chronic obstructive pulmonary disease with type 1 respiratory failure (b) Hypoxic seizure (c) Right neck of femur fracture (d) Right apical segment pulmonary embolism 2. Hypertension 1(a) 30 years (b) 2 days (c) 2 days (d) 2 days 2. 10 years[9] Exhibit 1, T Documents, T38, page 173, Death Certificate.THE LAW Section 13 of the Act provides that where the death of a veteran is war-caused the Commonwealth is liable to pay a pension to the dependants of the veteran. A dependent is defined to include ‘the partner’ or ‘a widow’.[10] Relevantly in this matter a ‘widow’ includes a woman who was the partner of the veteran immediately before the veteran’s death.[11] The circumstances taken into account when determining whether two people are living together in a de facto relationship include financial aspects of the relationship, nature of the household, social aspects of the relationship, any sexual relationship between the people and the nature of their commitment to each other.[12][10] Section 11(1) of the Act.[11] Section 5E of the Act.[12] Section 11E of the Act. Section 8 of the Act defines when the death of a veteran is taken to be a war-caused death. Relevantly section 8(1)(b) provides that the death of a veteran shall be taken to have been war-caused if it arose out of, or was attributable to, any eligible war service rendered by the veteran. Section 7 of the Act provides that a person who has rendered operational service shall be taken to have rendered eligible war service while the person was rendering operational service.

Evidence

Evidence Before The Court

The Applicant made herself available to give evidence at the Hearing. She gave affirmed evidence in relation to the poor health of the Veteran during his final hospital admission and in the lead up to his death.[16][16] Transcript, pages 12-15.Medical Evidence In assessing the Veteran’s claim for a disability pension the Respondent sought a report from Dr Andrew Scott, consultant thoracic, sleep and transplant physician. In a report dated 31 January 2008, Dr Scott provided the following:[17]…background history of smoking which he commenced at the age of 17.5 years when he joined the Royal Australian Navy. He has previously smoked up to 50 cigarettes a day, but is now down currently smoking 20 cigarettes a day.….He has given a history of asbestos exposure when working as an engineering stoker with the Navy. He was often exposed to asbestos lagging around the boilers and pipes, for at least two years.…Overall [the Veteran] has evidence of moderate COPD, with moderately severe gas diffusion impairment as suggested by his reduced diffusion coefficient KCO. There are also radiological features suggestive of pleural disease, which may be asbestos related.[17] Exhibit 1, T Documents, T31, pages 129-131. Report of Dr Andrew Scott. In a report dated 1 February 2008, a CT of the Veteran’s thorax provided:[18]History of asbestos exposure. Heavy smoker … abnormal chest x-ray October 2007 with moderate scarring and pleural changes.…Comment: There is evidence of previous asbestos exposure with extensive pleural thickening and calcification in both hemi thoraces. There is a background of chronic obstructive airways with gross overinflation and emphysematous changes in the lungs. Some fibrotic scarring is noted at the lung apices and also the lateral aspect of the right midzone.[18] Exhibit 1, T Documents, T32, page 132, Radiology Report – CT Thorax by Dr Albert Chong. On 5 February 2008, Dr Scott, having reviewed the radiological report provided a further report outlining that the CT thorax showed:[19]…evidence of asbestos related pleural disease, with evidence of pleural thickening and calcification within both hemi thoraces. There was fibrotic scarring in both apices, and the lateral aspect of the right mid-zone. The pleural plaques are predominately located in the anterior and lateral aspect of both mid and upper zones, with pleural thickening and calcification at the posterior aspect of both mid and lower zones. Calcified pleural plaques are noted over the right hemidiaphragm, and non-calcified pleural plaques of the left hemidiaphragm. In addition, there are background changes consistent with chronic obstructive airways disease, with gross hyperinflation and bilateral emphysema.Overall [the Veteran] has features consistent with moderate COPD/emphysema, on a background of asbestos-related pleural thickening with calcification bilaterally.…The medical condition which impacts on [the Veteran’s] work capacity relates to his underlying moderate COPD/emphysema, which is smoking related. In addition, there are asbestos related changes involving the pleural membrane, which will also be contributing to a restrictive ventilatory impairment. The relative contribution of the emphysema is 90% and the pleural disease 10%.[19] Exhibit 1, T Documents, T33, pages 133-134, Report of Dr Andrew Scott.

Decision

Reasons for decision

Further as step 3 of the Deledio Principles has not been met, it follows by logic neither is step 4.DECISION Based on the evidence before it, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the Veteran’s death from COPD was war-caused. Consequently, the reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

At the Hearing the Respondent contended that:[53]·There has not been a diagnosis of asbestosis.·Both COPD, emphysema and hypertension have previously been found not to be service-related.·The new COPD SoP still contains the factors that were raised in its written submissions, albeit by different numbering.·Causation aside with reference to COPD and the issue around inhaling gas fumes, practically you are looking at 10,000 hours which would require over a year, which would not be possible given the Veteran’s service history.·It is not in dispute that at the time of his death the Veteran was suffering from pleural plaques, however it was not a real or operative factor relevant to his passing.CONSIDERATION[53] Transcript, pages 9-11.Preliminary Issues As set out earlier, in accordance with the decision in Collins it is necessary to consider a number of preliminary issues. It is not disputed that the Applicant, was the de facto partner of the Veteran for at least 40 years before his death and as such for the purposes of the Act, is the widow of the Veteran who rendered operational service while serving with the Royal Australian Navy in Vietnam. It is also not disputed that the Veteran died on 15 June 2021 and the causes of death listed on his Death Certificate were (1) (a) Severe chronic obstructive pulmonary disease with type 1 respiratory failure (b) Hypoxic seizure (c) Right neck of femur fracture (d) Right apical segment pulmonary embolism 2. Hypertension.[54][54] Exhibit 1, T Documents, T38, page 173, Death Certificate of the Veteran. The cause of death for the purposes of section 120 and 120A of the Act requires consideration pursuant to section 120A(4) of the ‘kind of death’ met by the veteran. The Full Federal Court in Collins at [47] found that the ‘kind of death’ for the purpose of sections 120A(2) and (4) of the Act refers to the medical cause or causes of death, it is not made by applying sections 120, 120A or any SoP, rather it is made independently of them.[55][55] Also see Hill v Repatriation Commission [2009] FCAFC 91 (Hill) at [25] and Repatriation Commission v Hancock [2003] FCA 711 at [11], In Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD, Gordon J gave the following reasons for rejecting the kind of death found by the Tribunal in that case:[56][31] The phrase ‘kind of death met by the person’ in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It ask ‘questions of medical causation’ about the cause of death and does so in a particular context – the VE Act and, in particular, Pt VII of the VE Act...[32] The notion of ‘causing’ has been said to be one of common sense...[33] The answer to the question of causation posed by s 120A(4)...requires identification and examination of the purpose for which the question is being asked. The purpose or reason for asking the question is not at large. The nature and scope of the purpose for asking the question is to be found in the VE Act...the purpose for which the question in s 120A(4) is being asked, is to be found in s 120A(3)....one identifies the nature and purpose of the causal question in s 120A(4) (the ‘kind of death met by the person’) by reference to the matters identified in s 120A(3) – a hypothesis connecting a veteran ’s death with circumstances of that veteran ’s service...[35] What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.[36] The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that the death was war-caused and that cause, or at least one of the causes of death, was the veteran’s ‘service related alcohol habit [,] the effects of which [had] impaired his concentration and contributed to the fatal collision’...[56] Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD at [31]-[36]/625-626, principles of which the Full Federal Court in Collins and Hill agreed.