Bull and Repatriation Commission - [2001] AATA 59

DECISION AND REASONS FOR DECISION [2001] AATA 59

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1192

VETERANS' APPEALS DIVISION       )
           Re      Joan BULL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date2 February 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war widow's pension – Statement of Principles applied – whether causal relationship between death from cerebrovascular accident and the Veteran's war service

Veterans' Entitlements Act 1986 – ss 120(1), 120(3) and 120A

Statement of Principles – Instrument No 23 of 1998

Repatriation Commission v Keeley (2000) 98 FCR 108
Borrett v Repatriation Commission [2000] FCA 1829
Re Wallis and Repatriation Commission [2000] AATA 1060
Repatriation Commission v Stares (1996) 41 ALD 212
Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 17 June 1998 that refused a claim made on behalf of Joan Bull ("the Applicant") that the death of her husband James Arnold Bull ("the Veteran") was related to his war service. Review by the Veterans' Review Board ("the VRB") of that decision was sought on behalf of the Applicant on 9 November 1998. That decision was reviewed by the VRB on 13 May 1999 and affirmed. The Applicant then sought review by this Tribunal.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. A statement made by Robert Pearce dated 28 June 2000 (exhibit A) and statements made by Iris Sutherland dated 26 June 2000 (exhibit B) and 8 January 2001 (exhibit C) were tendered as evidence on behalf of the Applicant. A report from Dr Hugh Pratt dated 25 July 2000 and letter of instruction from the Respondent to Dr Pratt dated 23 June 2000 were tendered as evidence on behalf of the Respondent (exhibit 1). Additionally the Respondent's advocate tendered a minute from her to Dr Kyin, Department Medical Officer, dated 13 December 2000 and minute from Dr Kyin to the advocate of the same date (exhibit 2). Mr Pearce gave oral evidence at the hearing, and Mrs Sutherland gave oral evidence by conference telephone.
background
The Veteran was born on 12 June 1916. He enlisted in the Australian Army on 1 April 1941 (aged 24 years) and served in the Middle East from 31 July 1941 until 6 June 1942, thereby having operational service. He was discharged from the Army on 15 March 1946, having been deployed in an engineering unit during his service. The Veteran died on 12 November 1997 (aged 81 years). The Death Certificate provided by Dr Pratt, the Veteran's local medical officer, shows the causes of death as (T12) –
(a)       Cerebrovascular accident (hours)
(b)       Transient ischaemic attacks – drop attacks (5 years)
(c)       Cerebral athero-sclerosis (5 years)
As the Veteran had operational service, this…

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 Bull and Repatriation Commission

Details

AGLC: Bull and Repatriation Commission [2001] AATA 59
Case: [2001] AATA 59
Decision Date: 2 February 2001

CaseChat Overview and Summary

The applicant sought a war widow's pension on the basis that her husband's death from a cerebrovascular accident was caused by his war service. The Tribunal was required to determine whether there was a causal relationship between the Veteran's death and his war service. The Applicant argued that the Veteran's drinking, which contributed to his cerebrovascular accident, was a result of his war service. The Tribunal had to assess the evidence and determine if the drinking was causally related to the Veteran's war service.

The Tribunal noted that the Applicant's son, Robert Pearce, testified that the Veteran's drinking habits worsened after his retirement, and he consumed alcohol daily, particularly in the year before his death. The Respondent did not dispute that the Veteran consumed alcohol regularly in the year before his death but argued that there was no causal link to his war service. The Tribunal had to weigh the evidence and decide if the drinking was a result of the Veteran's war service. The Tribunal concluded that the Veteran's drinking was not causally related to his war service, as there was no evidence to suggest that his war service led to his drinking habits.

The Tribunal held that the Applicant's claim for a war widow's pension was not successful because there was no causal link between the Veteran's death and his war service. The Tribunal found that the Respondent's concession that the Veteran consumed alcohol regularly in the year before his death did not establish a causal link to his war service. The Tribunal rejected the Applicant's argument that the drinking was a result of the Veteran's war service, as there was no evidence to support this claim. The Tribunal's decision was based on the lack of evidence to establish a causal link between the Veteran's war service and his drinking habits.

The Tribunal dismissed the Applicant's claim for a war widow's pension. The Tribunal found that the Respondent had properly conceded that the Veteran consumed alcohol regularly in the year before his death, but this did not establish a causal link to his war service. The Tribunal rejected the Applicant's argument that the drinking was a result of the Veteran's war service, as there was no evidence to support this claim. The Tribunal's decision was based on the lack of evidence to establish a causal link between the Veteran's war service and his drinking habits. The Applicant's claim for a war widow's pension was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. A statement made by Robert Pearce dated 28 June 2000 (exhibit A) and statements made by Iris Sutherland dated 26 June 2000 (exhibit B) and 8 January 2001 (exhibit C) were tendered as evidence on behalf of the Applicant. A report from Dr Hugh Pratt dated 25 July 2000 and letter of instruction from the Respondent to Dr Pratt dated 23 June 2000 were tendered as evidence on behalf of the Respondent (exhibit 1). Additionally the Respondent's advocate tendered a minute from her to Dr Kyin, Department Medical Officer, dated 13 December 2000 and minute from Dr Kyin to the advocate of the same date (exhibit 2). Mr Pearce gave oral evidence at the hearing, and Mrs Sutherland gave oral evidence by conference telephone.background The Veteran was born on 12 June 1916. He enlisted in the Australian Army on 1 April 1941 (aged 24 years) and served in the Middle East from 31 July 1941 until 6 June 1942, thereby having operational service. He was discharged from the Army on 15 March 1946, having been deployed in an engineering unit during his service. The Veteran died on 12 November 1997 (aged 81 years). The Death Certificate provided by Dr Pratt, the Veteran's local medical officer, shows the causes of death as (T12) –(a) Cerebrovascular accident (hours)(b) Transient ischaemic attacks – drop attacks (5 years)(c) Cerebral athero-sclerosis (5 years) As the Veteran had operational service, this matter falls for consideration pursuant to s120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). As the claim was lodged after 1 June 1994 s120A requires that the matter be determined by reference to a Statement of Principles if a relevant Instrument exists. The Applicant sought to rely on her accrued rights to have the matter determined in accordance with the Statement of Principles in place at the time of the primary decision: Repatriation Commission v Keeley (2000) 98 FCR 108. The parties submitted, and the Tribunal agreed, that the relevant Statement of Principles is Instrument No. 23 of 1998 for Cerebrovascular Accident. The Applicant sought to rely on factor 5(e) of that Statement of Principles, viz. –Regularly consuming an average of 250g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident; It was conceded for the Respondent that the Veteran consumed "an average of 250g/week of alcoholic beverage for a continuous period of at least one year immediately before the clinical onset of his cerebrovascular accident, and the Tribunal finds that this concession was properly made. The only issue between the parties was whether the Veteran's drinking was causally related to his war service.the evidence Mr Robert Pearce, the Applicant's son and the Veteran's step son, advised the Tribunal that the Applicant has resided in a nursing home for some years, she is very disabled and he holds her Power of Attorney. Moreover, the Tribunal finds from Mr Pearce's evidence that the Applicant is not mentally competent to give evidence. Mr Pearce gave oral evidence at the hearing. The Tribunal found him to be a credible witness who appeared to do the best he could without conjecture.

Evidence

Evidence Before The Court

It was conceded for the Respondent that the Veteran consumed "an average of 250g/week of alcoholic beverage for a continuous period of at least one year immediately before the clinical onset of his cerebrovascular accident, and the Tribunal finds that this concession was properly made. The only issue between the parties was whether the Veteran's drinking was causally related to his war service.the evidence Mr Robert Pearce, the Applicant's son and the Veteran's step son, advised the Tribunal that the Applicant has resided in a nursing home for some years, she is very disabled and he holds her Power of Attorney. Moreover, the Tribunal finds from Mr Pearce's evidence that the Applicant is not mentally competent to give evidence. Mr Pearce gave oral evidence at the hearing. The Tribunal found him to be a credible witness who appeared to do the best he could without conjecture. Mr Pearce said that he met the Veteran about six months before the Veteran and the Applicant married in 1947, when Mr Pearce was aged 7 years. He could not remember what impression he had of the Veteran when they first met. He recalled that he and his brother joined the Veteran and the Applicant for the second week of their honeymoon. He also understood that on the first night of the honeymoon the Veteran had met some golfers where they were staying and "he turned up in the bedroom very drunk and was sick out the window". Mr Pearce remained living at home until about 1959, and for a six month period in 1974/75. He was away from Canberra in the RAAF from 1966 to 1976, but after that time he mostly lived close by and visited the Veteran and the Applicant a few times each week. Mr Pearce recalled that after the Veteran's marriage to his mother in 1947 the Veteran only drank on Saturday nights, but after four or five years this increased to drinking also on Sundays. He recalled that if he and his brother were in bed and awake the Veteran would come in and want to talk, to give them advice or "just carry on". He observed that at these times the Veteran was "drunk and not very coherent". In the early years the Veteran did not drink at home, but that changed once he retired, aged 60 years (in about 1976). Mr Pearce did not know why the Veteran's pattern of drinking changed at that time. He noted that once the Veteran retired he drank without concern about being too ill to go to work the next day. Mr Pearce said he drank on Saturday, Sunday, Wednesday and possibly another day when he played bowls, and on the other nights he had "a couple of drinks of port". The Veteran transferred from playing golf to bowls about 1968 or 1970. Mr Pearce said that the Veteran's drinking pattern continued at much the same level until 1994 when his mother had a heart attack. He tried to modify his drinking after that time by decreasing his visits to the club, but he continued to drink at home. During the twelve months before he died he spent eight months in a hostel attached to the nursing home in which the Applicant resides and the rest of the time at home. Mr Pearce said that the Veteran would drink wine every day after 4 pm. He would have several glasses of port or sherry in his room. He also went to bowls at least three times a week and drank beer while he was there.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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