Blain and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 702

Blain and Repatriation Commission (Veterans’ entitlements) [2016] AATA 702 (9 September 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2014/2034

Re

Anne Blain

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President Dr P McDermott RFD

Date 9 September 2016

Place Brisbane
The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veteran deceased – claim for compensation by war widow – hypothesis connecting the death of the veteran with the circumstances of the service rendered – Statement of Principles concerning Diabetes Mellitus (Instrument No. 89 of 2011 as amended by Instrument No. 27 of 2016) in force – Statement of Principles does not uphold a hypothesis that the diabetes condition is related to service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 13, 14, 120, 120A, 196B
CASES
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Deledio (1998) 83 FCR 82
Forrester v Repatriation Commission [2013] FCA 898
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Byrnes v Repatriation Commission (1993) 177 CLR 564
Re Dell and Repatriation Commission (1986) 5 AAR 253
Bushell v Repatriation Commission (1992) 175 CLR 408
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v McKenna (1998) 52 ALD 72
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1981) 147 CLR 635
Woodward v Repatriation Commission (2003) 131 FCR 473
Collins v Repatriation Commission (2009) 177 FCR 280
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Bey (1997) 79 FCR 364
SECONDARY MATERIALS
Statement of Principles concerning Diabetes Mellitus (Instrument No. 89 of 2011 as amended by Instrument No. 27 of 2016)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
9 September 2016
INTRODUCTION

Ms Anne Blain (“the applicant”) was a dependent of the late Mr Milton Blain (“the veteran”) who served in World War II. I have to determine if the claim of the applicant for a war widow’s pension should be granted.
At the time that final submissions were made by the parties the Repatriation Medical Authority (“RMA”) had not concluded an investigation into passive smoking and diabetes mellitus and so the claim of the applicant could not then be determined.[1] After the conclusion of the investigation the RMA issued an amendment to the Statement of Principles (“SoP”) concerning Diabetes Mellitus (Instrument No. 27 of 2016) and the parties were afforded an opportunity to make further submissions. The applicant did not make further submissions. The Repatriation Commission (“the respondent”) maintained that there is insufficient material establishing a connection to eligible operational service rendered by the veteran to meet the amended SoP.
[1] Veterans’ Entitlements Act 1986 (Cth) s 120A(2).
BACKGROUND
The death certificate records that the veteran passed away in 2010 when he was 86 years of age. The certified causes of death were listed as:[2]
(a) Apnoea
(b) Aspiration pneumonia
(c) Progressive supra nuclear palsy.
[2] Exhibit A, T-Documents, T9.
On 30…

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 702
Decision Date: 9 September 2016

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Repatriation Commission to reject a claim for a war widow's pension. The applicant was the widow of a veteran who had served in the Australian Army between 1942 and 1946. The veteran died in 2010, with the certified causes of death being apnoea, aspiration pneumonia, and progressive supra nuclear palsy. The applicant's claim for a war widow's pension was initially rejected by a delegate of the Repatriation Commission and subsequently affirmed by the Veterans’ Review Board. The applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the death of the veteran arose out of, or was attributable to, his eligible war service, as required by section 8(1)(b) of the Veterans’ Entitlements Act 1986 (Cth). This determination was to be made in accordance with section 120A(2) of the Act, which requires that for a hypothesis connecting a death with service to be reasonable, there must be in force a Statement of Principles (SoP) determined by the Repatriation Medical Authority that upholds that hypothesis. The Tribunal was required to consider the material before it, ascertain if an SoP was in force, and if so, determine if the hypothesis raised by the material fit within the SoP's "template."

The Tribunal considered the SoP concerning Diabetes Mellitus, which had been amended during the course of the proceedings. The Tribunal found that neither the original nor the amended SoP upheld a hypothesis that the veteran's diabetes condition was related to his service, particularly given the significant time elapsed since his last day of service. Applying the principles from *Repatriation Commission v Deledio*, the Tribunal concluded that the material before it did not point to a reasonable hypothesis connecting the veteran's death with the circumstances of his service.

Consequently, the Tribunal affirmed the decision under review, finding that it could not be reasonably satisfied that the veteran's death was war-caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the time that final submissions were made by the parties the Repatriation Medical Authority (“RMA”) had not concluded an investigation into passive smoking and diabetes mellitus and so the claim of the applicant could not then be determined.[1] After the conclusion of the investigation the RMA issued an amendment to the Statement of Principles (“SoP”) concerning Diabetes Mellitus (Instrument No. 27 of 2016) and the parties were afforded an opportunity to make further submissions. The applicant did not make further submissions. The Repatriation Commission (“the respondent”) maintained that there is insufficient material establishing a connection to eligible operational service rendered by the veteran to meet the amended SoP.[1] Veterans’ Entitlements Act 1986 (Cth) s 120A(2).BACKGROUND The death certificate records that the veteran passed away in 2010 when he was 86 years of age. The certified causes of death were listed as:[2](a) Apnoea (b) Aspiration pneumonia (c) Progressive supra nuclear palsy. [2] Exhibit A, T-Documents, T9. On 30 July 2010 the applicant lodged a claim for a war widow’s pension.[3] [3] Exhibit A, T-Documents, T5. On 6 December 2010 a delegate of the respondent rejected her claim.[4] On 1 April 2014 the Veterans’ Review Board (“VRB”) affirmed the decision of the delegate.[5] The applicant now seeks review of the decision by this Tribunal.[4] Exhibit A, T-Documents, T15.[5] Exhibit A, T-Documents, T2.LEGISLATIVE FRAMEWORK Section 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service. Section 6A of the Act provides the requirements for operational service. The veteran served in the Australian Army from 24 June 1942 until 30 August 1946. As the veteran served outside of Australia the whole of his service constitutes “eligible war service” in the form of operational service.[6] [6] Veterans' Entitlements Act 1986 (Cth) ss 6A, 7. Section 8 of the Veterans' Entitlements Act 1986 (Cth) (“the Act”) provides for when the death of a veteran is taken to be war-caused. Relevantly, this provision applies where, under s 8(1)(b) of the Act, “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”. Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants. Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1)(c) of the Act provides that the term “dependant” is defined to include a “widow”. Section 5E(1) of the Act defines a “war widow” to include a woman who was legally married to a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran. As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying subs 120(1) and (3) of the Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The SoP, either before or after its amendment, does not uphold a hypothesis that the diabetes condition is related to service as considerably more than 15 years had elapsed from the last day of service and the mid-1990s. The application was adjourned to enable a search to be made of available hospital records but no records of relevance have been found. Having regard to s 120B(3) of the Act I cannot be reasonably satisfied that the material before me points to a reasonable hypothesis that the death of the veteran is connected with the circumstances of his service to his country.DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

In the case of applications lodged after 1 June 1994, where the RMA has made a SoP in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This is achieved by the application of s 120A(3) of the Act, which provides:For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a) a Statement of Principles determined under subsection 196B(2) or (11); or(b) a determination of the Commission under subsection 180A(2);that upholds the hypothesis. CONSIDERATION It was held in Repatriation Commission v Bawden (2012) 206 FCR 296 at 304-305 that I am required to consider the applicant’s claim in accordance with Repatriation Commission v Deledio (1998) 83 FCR 82. (“Deledio”). In Deledio, the Full Court of the Federal Court of Australia provided at 97-98 guidance to this Tribunal on the four steps to consider:1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

Division	VETERANS' APPEALS DIVISION
File Number	2014/2034
Re	Anne Blain
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President Dr P McDermott RFD
Date	9 September 2016
Place	Brisbane