Buckley and Repatriation Commission - [2002] AATA 1286

DECISION AND REASONS FOR DECISION [2002] AATA 1286

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/495

VETERANS' APPEALS DIVISION          )
           Re      VERONICA MARY BUCKLEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date13 December 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd)......................
Mr B J McCabe
Member
CATCHWORDS
VETERANS' AFFAIRS – war-widows' pension – entitlement – whether death of veteran causally related to war-service - hypertension - whether reasonable hypothesis established connected war-service with applicant's salt intake
Veterans' Entitlements Act 1986

REASONS FOR DECISION

13 December 2002 Mr B J McCabe, Member

Introduction

The applicant in these proceedings is Mrs Veronica Buckley. Mrs Buckley has applied for a war widows' pension under the Veterans' Entitlements Act 1986.
Mrs Buckley is the widow of the late Kevin Martin Buckley, a veteran of World War II. Mr Buckley died on 20 November 1998. The death certificate lists bronchial pneumonia as the cause of death. Mrs Buckley says the underlying cause of death was vascular dementia. She says that condition was brought on by hypertension caused by excessive salt consumption that began when he was in the services. The respondent says the death of the veteran was not service-related, so no entitlement to a pension arises.
The issue in dispute between the parties was whether the evidence established the late veteran was consuming enough salt prior to the onset of hypertension to satisfy Clause 5(c) of Statement of Principles No 31 of 2001.
The applicant initially claimed alcohol consumption was a factor in the veteran's hypertension and death. That aspect of the claim was abandoned at the outset of the hearing.
The Material before the Tribunal
The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It heard oral testimony from the applicant, who also provided two written statements. The applicant's brother, Mr John Hennessy, also gave evidence. His written statement was read into the record. Mr Hennessy's statement was prepared in haste immediately prior to the commencement of the hearing: an earlier statement that was not tendered in evidence discussed the late veteran's alcohol consumption. The respondent did not have the opportunity to consider the fresh statement in detail before cross-examination, but there was no request for an adjournment. The respondent did not call any witnesses. It filed a medical report of Dr Grant dated 3 June 2002.
The applicant was represented by Mr O'Gorman of counsel. The respondent was represented by Mr Smith.
The Legislative Framework and the Statements of Principles
The applicant must establish the veteran's death was war-caused in order to qualify for a war widows' pension. Section 120(1) of the Veterans' Entitlements Act 1986 (the VEA) says the Commission:
"shall determine that the injury was a war-caused injury… unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."

Section 120A requires the reasonableness of the hypothesis to be tested against the relevant statement…

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 Buckley and Repatriation Commission

Details

AGLC: Buckley and Repatriation Commission [2002] AATA 1286
Case: [2002] AATA 1286
Decision Date: 13 December 2002

CaseChat Overview and Summary

In the case of Buckley and Repatriation Commission, the applicant sought a war-widows' pension under the Veterans' Entitlements Act 1986, asserting that the veteran's death was causally related to his war service due to his hypertension. The key issue for determination was whether the veteran's hypertension was reasonably connected to his consumption of large amounts of salt during his service. This required establishing if the veteran's salt consumption was both directly linked to his war service and occurred within six months prior to the onset of his hypertension.

The court considered the evidence provided by the applicant and witnesses, including the veteran's habit of using excessive salt in his meals and his consumption of bully beef, which is preserved in salt. However, the court found that while the veteran did consume large amounts of salt, the evidence did not sufficiently establish that this habit was formed during his service or that it directly caused his hypertension. There was no clear link between the veteran's salt consumption and his war service, nor was it established that he consumed significant amounts of salt immediately before developing hypertension. As a result, the court concluded that the applicant could not prove the necessary causal relationship required for entitlement to the pension.

Based on the findings, the court upheld the respondent's decision and affirmed the decision under review. The applicant's claim for a war-widows' pension was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

It is therefore necessary for me to determine as a matter of fact whether the veteran was consuming large amounts of salt immediately before he developed hypertension.The Factual Background Mr Buckley served in the Australian Army between 22 July 1942 and 3 October 1946. He served in New Guinea during that time. There is no dispute he was on operational service. Mrs Buckley did not meet the applicant until 1966. They married in 1969. She said she observed her husband using a lot of salt on his meals. He would add salt to every meat dish and to vegetables and salads. He always put salt on his tomato sandwiches for lunch. She said this came on top of the salt she used in her cooking in the ordinary course. The applicant says she went through the contents of a salt shaker each day. Mr Hennessy confirmed this evidence. He met Mr Buckley through his sister in the late 1960s, and came to know him well during the 1970s. He said he saw the late veteran use the salt shaker every meal. Mr Buckley would shake the salt shaker several times over his meal at the start and at least once more during the course of the meal. Mr Hennessy said he was a heavy salt user himself. He added Mr Buckley certainly used more salt than a normal person. Mr Smith pointed out in his cross-examination of Mrs Buckley that it must have been difficult to determine precisely how much salt was being used. He was suggesting it would be difficult to establish the late veteran had been ingesting at least 12 grams of salt each day. I am satisfied the late veteran was consuming at 12 grams of salt each day during the time he knew the applicant. I accept it is difficult to be precise as to the amount he consumed, but I am satisfied from the descriptions of his salt consumption that it was at least 12 grams during that period. It is not enough to establish the veteran consumed upwards of 12 grams of salt each day, of course. It must be established the salt consumption was related to his war service. The Tribunal must also be satisfied he was consuming the requisite amount of salt within six months prior to the onset of the hypertension. The applicant said in her statement of 27 May 2002 that she had been told her husband consumed salt tablets while he was in the Army. Mr Hennessy says soldiers in the tropics were ordered to consume salt tablets regularly because they sweated so heavily. (I note Mr Hennessy did not serve in New Guinea alongside the veteran. He was in the navy from 1954 for six years and subsequently served in the Air Force in Vietnam and elsewhere in Asia.) Mr Smith acknowledged that soldiers in the tropics did consume salt tablets, but it was not clear how much salt the veteran consumed, or whether he took salt regularly. The applicant also said in her statement that her husband consumed bully beef. Bully beef was preserved in salt because of the difficulties associated with refrigeration. There was no evidence provided on the salt content of bully beef, but I am prepared to assume it had a relatively high salt content because it was preserved in salt. Once again, Mr Smith pointed out there was no evidence about how much bully beef was consumed by the late veteran.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I agree with the respondent. The evidence does not establish the late veteran's preference for large amounts of salt was formed during the course of his service in the Army. The preference may have emerged previously or subsequently. The evidence does not establish the veteran was consuming salt prior to the onset of hypertension. It may be that his hypertension was brought on by something else, like excessive alcohol consumption. Conclusion I am unable to conclude the late veteran satisfies the relevant statement of principles. The applicant's claim must therefore fail. The decision under review is affirmed. I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, MemberSigned: Sarah Oliver AssociateDate of Hearing 6 December 2002 Date of Decision 13 December 2002Counsel for the Applicant Mr D O'Gorman Solicitor for the Applicant Gilshenan and Luton Solicitor for the Respondent Mr M Smith, Departmental Advocate

Ratio Decidendi

Legal Principle Established

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