Betty Smith and Repatriation Commission - [2014] AATA 500

[2014] AATA 500

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/4388

Re

Betty Smith

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr Dean Letcher, QC, Senior Member

Date 22 July 2014

Place Sydney
The decision under review is affirmed.

.........................[sgd]...............................................
Mr Dean Letcher, QC, Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – claim for war widow’s pension – operational service – whether veteran’s service led to death – complex hypothesis - decision under review affirmed
LEGISLATION
Veterans Entitlement Act 1986 (Cth), ss 8(1), 12, 120(1), 120(3), 120(4), 120A
CASES
Allison and Repatriation Commission [2014] AATA 48

East v Repatriation Commission [1987] FCR 517
McKenna v Repatriation Commission [1999] FCA 323

Repatriation Commission v Deledio (1998) 83 FCR 82

SECONDARY MATERIALS
Statement of Principles concerning Anxiety Disorder, No 101 of 2007, factor 6(a)

Statement of Principles concerning Hypertension, No 35 of 2003, factor 6(b)

Statement of Principles concerning Ischaemic Heart Disease, No 89 of 2007, factors 6(a), 6(o)

REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
22 July 2014

The Applicant, Mrs Betty Smith, seeks review of a decision of the Veterans Review Board, dated 13 August 2012, refusing her application for a war widow’s pension on the basis that the death of her husband Mr Victor Smith was not war-caused.
FACTUAL BACKGROUND
Mr Smith had operational war service in New Guinea between 14 February 1945 and 13 December 1945. He was a trained motor mechanic. After discharge he conducted his own successful cleaning business until he sold it and continued as a manager until retirement. He died on 22 December 2010, aged 87 years, with the main cause of death given as Ischaemic Heart Disease (“IHD”).
The Applicant had no direct evidence of Mr Smith being involved in direct enemy action. Certainly Japanese stragglers were still active in 1945 in areas of New Guinea and he could have been subjected to major stressors.
After discharge, the deceased resumed his sport of competitive cycling, and was training in hopes of making the Australian team for the 1952 Helsinki Olympic Games, when he fell and suffered an injury which ended his racing career.
There was evidence of post-war erratic behaviour and excessive alcohol use from his two daughters, but the time and reliability of those observations were in issue.
LEGISLATIVE FRAMEWORK
By s 13 of the Act, Mrs Smith will be entitled to a widow’s pension if her husband’s death was war-caused within the meaning of s 8(1). As her case relies on her husband’s operational service, the standard of reasonable hypothesis applies. That means that I must determine that Mr Smith’s death was war-caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. I shall be so satisfied if the material before me does not raise a reasonable hypothesis connecting his death with his service: ss 120(1) and 120(3).
Whether a hypothesis is reasonable is assessed by reference to Statements of Principles (SOPs) issued by the Repatriation Medical Authority from time to time:…

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 Betty Smith and Repatriation Commission

Details

AGLC: Betty Smith and Repatriation Commission [2014] AATA 500
Case: [2014] AATA 500
Decision Date

CaseChat Overview and Summary

The case of Betty Smith and Repatriation Commission revolves around the applicant's attempt to establish a connection between Mr Smith's service and his ischaemic heart disease (IHD) under the Veterans Entitlement Act 1986. The Tribunal was tasked with determining whether there was a reasonable hypothesis that Mr Smith's war service led to his IHD through a series of intervening health conditions, including hypertension. The case required the Tribunal to examine the chain of causation proposed by the applicant and assess whether it was supported by the relevant Statements of Principles (SoP) under the Act.

The primary legal issue before the court was whether the applicant could prove, on the balance of probabilities, that Mr Smith's hypertension and subsequent IHD were reasonably connected to his war service. This involved establishing that each link in the proposed chain of causation was supported by the relevant SoP. The court had to determine if the applicant's proposed hypotheses connecting the war service, PTSD or anxiety, hypertension, and IHD were sustainable under the Act. The court also needed to assess whether the applicant had provided sufficient evidence to support the necessary factors for each condition, particularly concerning the presence of hypertension before the onset of IHD, and whether there were any psychiatric disorders severe enough to warrant ongoing management before the onset of hypertension.

The court found that while hypertension and IHD could be reasonably connected, the other links in the proposed causal chain were not supported by the evidence. The applicant's hypothesis linking war service to anxiety, and subsequently to hypertension, was not sustainable as the required psychiatric disorder was not sufficiently severe or supported by evidence of ongoing management. Additionally, the evidence did not support the connection between alcohol consumption and hypertension as required by the SoP. As a result, the Tribunal was satisfied that the hypertension and IHD were connected but the other essential links in the causal chain were absent.

The decision under review was affirmed, upholding the original determination that there was insufficient evidence to support a connection between Mr Smith's war service and his ischaemic heart disease through the proposed chain of health conditions. The Tribunal's findings were based on the lack of support for the necessary sub-hypotheses connecting service, anxiety, hypertension, and alcohol consumption. The court concluded that the applicant had not met the required standard of proof to establish the proposed causal links.

Orders

Orders of the court

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Background

Background to the litigation

In all other matters, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).LEGAL BACKGROUND The Applicant’s case was that the factual material points to a hypothesis connecting the IHD to the circumstances of Mr Smith’s service. In this matter it is not a direct connection but a “complex hypothesis”, involving a chain of health conditions leading up to the IHD. It was necessary to show that each of these links in the chain was a reasonable hypothesis supported by a relevant Statement of Principles (SoP) under the Veterans Entitlement Act 1986 (Cth) (“VE Act”) as amended. The Applicant submitted that there were a number of alternative paths of causation which may be summarised:(a)war service – PTSD – hypertension – IHD(b)war service – anxiety – hypertension – IHD(c)war service – hypertension – IHD The first path suggested was abandoned during the hearing for reasons which will be explained. The parties accepted that the ‘kind of death’ suffered by Mr Smith was IHD. It is convenient to work backwards from that condition to examine the possible connections with war service.ISCHAEMIC HEART DISEASE IHD is the subject of a SoP No 89 of 2007. One factor which must, as a minimum, exist before a reasonable hypothesis connecting IHD with service is:“6(a) having hypertension before the clinical onset of ischaemic heart disease”. It was accepted by the medical witnesses that the deceased had chronic sustained elevation of blood pressure, sufficient to justify a diagnosis of hypertension only from about 1974, but this was well before a diagnosis of IHD. Thus the SoP was satisfied, but in this case the real issues lay in the earlier parts of the alleged chain of causation.HYPERTENSION The cardiological evidence from Professor O’Rourke and Associate Professor Haber was that they were satisfied that the deceased was first found to be hypertensive in about 1974. One factor that, as a minimum, must exist before a reasonable hypothesis can be said to exist connecting hypertension with service is in the SoP for Hypertension No 35 of 2003:“6(b) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension” Each doctor accepted that this level had been exceeded for the required period on the basis of the evidence of the daughters and a report of cardiologist Dr Yiannikas. This meant that the factor was established. A further possible factor was:“6(o) having a clinically significant psychiatric disorder from the specified list before the clinical on set of hypertension” The ‘specified list’ in the SoP did not include ‘Anxiety Disorder Not Otherwise Specified’, which was the only disorder supported by any evidence. It was also a requirement of that list that the disorder was of ‘sufficient severity to warrant ongoing management’, but there was no evidence that Mr Smith had ever sought or been recommended treatment. This meant that Factor 6(o) did not apply.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The complex hypotheses put forward for the Applicant are not sustainable because the sub-hypotheses linking service and anxiety, anxiety and hypertension and alcohol and hypertension cannot be supported. I am satisfied that the hypertension and IHD may be connected but the other essential links in the causal chain are absent.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/4388
Re	Betty Smith
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr Dean Letcher, QC, Senior Member
Date	22 July 2014
Place	Sydney