Butler and Repatriation Commission (Veterans' entitlements) - [2023] AATA 2765

Butler and Repatriation Commission (Veterans' entitlements) [2023] AATA 2765 (29 August 2023)
Division:Veterans' Appeals Division
File Number: 2022/3618
Re:Sandra Butler
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:29 August 2023
Place:Brisbane

The decision under review is affirmed.
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Deputy President J Sosso
Catchwords
VETERANS’ ENTITLEMENTS —War Widows Pension—Passive Smoking—Kind of Death—Acute Myeloid Leukaemia—Death and Defence Service—Applicable Statement of Principles—Decision Affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Bringinshaw v Bringinshaw (1938) 60 CLR 336
Collins and Repatriation Commission [2008] AATA 351
Hill v Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434
Kowalski and Repatriation Commission [2009] AATA 853
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Smith (1987) 15 FCR 327
Willman and Repatriation Commission [2007] AATA 1480
Secondary Materials
Cross on Evidence (Australian 3^rd Ed)
Statement of Principles concerning Ischaemic Heart Disease No. 2 of 2016
Statement of Principle concerning Acute Myeloid Leukaemia No. 72 of 2015
REASONS FOR DECISION
Deputy President J Sosso
INTRODUCTION

Mrs Sandra Butler (the Applicant) seeks review of a decision by the Repatriation Commission (the Respondent) made on 8 February 2022 affirming a Determination of 17 August 2021 which rejected the Applicant’s claim for a war widow’s pension under s 70(1) of the Veterans’ Entitlements Act 1986 (Cth) (the Act).
The Applicant married Mr Geoffrey John Butler (the veteran) on 19 August 1994 – Exhibit 1 T16 pp. 52, 63. The veteran served in the Royal Australian Air Force (RAAF) from 28 May 1985 until 5 November 1995 - Exhibit 1 T16 p. 62. After his discharge the veteran transferred to the Reserves until he was entirely discharged from the RAAF on 2 January 2001. It is not contested that the veteran’s eligible defence service under the Act was the period between 28 May 1985 and 5 November 1995.
After completing secondary schooling in 1973, the veteran worked in a number of civilian jobs, including, for a number of years, as a bank clerk. In a document dated 24 October 1984 and headed “Advice to Recruiting Officer – Groundstaff”, a positive recommendation was given for the veteran to be accepted into the RAAF in a clerk capacity due to his experience in that field and having “the maturity to cope with the required training course” – Exhibit 2 ST1 p. 127.
A Statement of Service issued by the Department of Defence on 11 October 1988, noted that the veteran was then serving in the Administrative Support Squadron, RAAF Amberley, Queensland – Exhibit 1 T31 p. 142. Further, the veteran’s ADO Service Record reports that he served in RAAF Clerical and as a Clerk 1 – Exhibit 1 T31 p. 139.
The veteran’s Medical Examination Records indicate that he did not smoke cigarettes – Exhibit 1 T30 pp. 137, 143.
It is the Applicant’s contention that the service rendered by the veteran was as a pay clerk, which confined him mostly to office duties. 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.

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Details

Case: [2023] AATA 2765
Decision Date: 29 August 2023

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mrs Butler, against a decision of the Repatriation Commission concerning a claim for a War Widows Pension. The veteran, Mrs Butler's late husband, had died from Acute Myeloid Leukaemia. The applicant's hypothesis was that the veteran's death was attributable to his war service, specifically through passive smoking during that service. The Administrative Appeals Tribunal had affirmed the Commission's decision to deny the pension.

The primary legal issue before the court was whether the veteran's death from Acute Myeloid Leukaemia was "attributable to" his war service, within the meaning of the relevant legislation. This involved determining the applicable Statement of Principles (SoP) and whether the facts of the case satisfied the criteria within that SoP to establish a causal link between the war service and the death. The court also considered the principle that there can be multiple medical causes of death and that a contributing cause is sufficient to establish "attributability".

The court noted that the applicable SoP, SoP No. 72 of 2015, did not contain any factors that could be relied upon by the applicant to establish a connection between passive smoking during war service and Acute Myeloid Leukaemia. The court referred to established principles regarding "attributability" from cases such as *Repatriation Commission v Law*, which confirmed that war service need only be a contributing cause, not the sole or dominant cause, of death. However, without a relevant factor in the applicable SoP, the applicant could not establish the necessary link.

The decision under review by the Administrative Appeals Tribunal was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, as there are no Factors in s 9 that are applicable to the veteran, SoP No. 72 of 2015 cannot be relied upon by the Applicant.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The only person called to give evidence was Dr Kenneth Hossack, Consultant Cardiologist. Dr Hossack also appeared remotely and was subject to cross-examination.CONSIDERATIONKind of death As previously indicated, the first question to be determined is what was the veteran’s kind of death. As was explained above, there may well be more than one cause of death for a veteran. In Collins, Mansfield and Stone JJ made the following observations:51 There may be more than one medical cause for a veteran’s incapacity or death. Repatriation Commission v Law (1980) 147 CLR 635 (Law) recognised that. In that case, the veteran had died as a result of carcinoma of the lung (nine months) with myocardial infarction (three years) as a contributory cause. That was not in issue. That finding did not attract adverse judicial comment. The hypothesis presented by the widow of the veteran was that, as a result of his war service, the veteran had taken up smoking, which had led to the onset of his carcinoma and so to his death. The issue was whether, in terms of s 101 of the Repatriation Act 1920 (Cth), his death had arisen out of or was attributable to his war service. Section 101 was generally to the same effect as s 8(1)(b) of the VE Act and s 47(2) of that Act generally was to the same effect as s 120(1) of the VE Act. That Act was repealed and replaced by the VE Act: see s 3 of the VE Act. For present purposes, it is sufficient to note the similarity between the relevant wording of s 101 referred to and s 8(1)(b) of the VE Act: see also per O’Loughlin J in Doolette at 492, and the absence of any suggestion in the judgment of Aickin J (with whom Gibbs CJ, Stephen and Mason JJ agreed) that there could not be multiple medical causes of death.52 The High Court upheld the decision of the Full Court of this Court (Bowen CJ, Brennan and Lockhart JJ): Repatriation Commission v Law (1980) 31 ALR 140. Their Honours at 151 said of the expression "attributable to":It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show "attributability" if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made. That passage, of course, relates to the issue of whether the death was "war-caused", but it was a question considered in relation to each of the medical causes of the death of the veteran.53 That passage was adopted, and applied, by O’Loughlin J in Doolette. That case concerned a claim by the widow of a veteran for a pension under the VE Act, following his death. The veteran had died following a myocardial infarction, to which his condition of diabetes mellitus type 2, first diagnosed in 1954, had been a significant contributing factor. The hypothesis put forward to connect the death to the veteran’s service was that the veteran’s death was war-caused because the diabetes was war-caused, either through stress experienced during war service, or by that stress leading to obesity which in turn produced diabetes, or by that stress aggravating a latent condition of diabetes. The fact that the veteran had suffered stress during his operational service was not in dispute.54 His Honour said at 492 that:if death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war-caused condition, the proper conclusion would be that death was attributable to war service. Although the Tribunal had properly considered that the medical cause of the death included the diabetes, it was satisfied beyond reasonable doubt that no reasonable hypothesis existed connecting the veteran’s death to his war service. That conclusion was not shown to have resulted from any error of law on the part of the Tribunal.