Coleman and Repatriation Commission (Veterans’ entitlements) - [2015] AATA 757

Coleman and Repatriation Commission (Veterans’ entitlements) [2015] AATA 757 (28 September 2015)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2014/0609

Re

Valma Coleman

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms G Ettinger, Senior Member

Date 28 September 2015

Place Sydney
The Tribunal sets aside the decision under review and in substitution finds that Mr Coleman’s death was war-caused. Accordingly Mrs Coleman is eligible to receive a war widow’s pension.

................................[sgd]........................................
Ms G Ettinger, Senior Member
CATCHWORDS
Veterans’ entitlements – claim for widow’s pension – operational service – kind of death – hypertension – salt intake – reasonable hypothesis – decision under review set aside – death of Veteran was war-caused
LEGISLATION
Veterans’ Entitlements Act 1986 ss 8, 13, 120, 120A
CASES
Bull v Repatriation Commission (2001) 66 ALD 271

Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Collins v Repatriation Commission (2009) 177 FCR 280

SECONDARY MATERIALS
Statements of Principles:

No.89 of 2007, Ischaemic Heart Disease

No.63 of 2013, Hypertension
REASONS FOR DECISION
Ms G Ettinger, Senior Member
28 September 2015
SUMMARY

Mrs Valma Coleman, who is 88 years old is the Applicant before the Tribunal claiming a widow’s pension to which she says she is entitled because her late husband, the Veteran, Mr Harry Coleman, served on operational service and his death was war-caused. He served in the Royal Australian Navy, (the Navy), from 30 November 1942 to 1 April 1946. Mr Coleman died on 25 December 2012 aged 88, and Mrs Coleman subsequently made a claim for a widow’s pension on 1 March 2013.
The Repatriation Commission determined that the death of the Veteran was not war-caused. Mrs Coleman applied to the Veterans’ Review Board (the VRB), for a review of that decision, and on 26 November 2013 the VRB affirmed the decision of the delegate of the Commission.
Mrs Coleman has exercised her rights to appeal to this Tribunal. She gave evidence by telephone, and remained on the line for the full hearing which was conducted over two days. She is a credible witness, and I am satisfied that when she gave evidence she told it as it was. I note without making any adverse findings about it, that she made an error in nominating 1968 as the onset of her husband’s hypertension citing the occasion when he was admitted to Royal Prince Alfred Hospital (RPAH) with a blood pressure reading of 240/140, when it was in fact indicated in the documents before the Tribunal that the hospital admission was in 1976.
Other family members also gave evidence by telephone. They were, Pamela Godden, Ronald Coleman, and Kathleen Coleman. Their statements are before the Tribunal. There was also the statement of Major Ian Hawke RAInf Retd of Writeway Research Service Pty Ltd, as Exhibit A6, William Barlow, a colleague of Mr Coleman as Exhibit A2, salt samples as Exhibit A8, the report of…

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.

Keep reading for free

Create a free CaseChat account to read Coleman and Repatriation Commission (Veterans’ entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] AATA 757
Decision Date: 28 September 2015

CaseChat Overview and Summary

Valma Coleman, the widow of Harry Coleman, sought a widow’s pension under the Veterans’ Entitlements Act 1986 (Cth), contending that her husband's death was caused by his war service. The Repatriation Commission had previously denied her claim, ruling that Mr Coleman's death was not war-caused. The matter was brought before the Administrative Appeals Tribunal to review the Commission’s decision.

The primary legal issue was whether Mr Coleman's death was attributable to his war service, specifically whether it could be established on the balance of probabilities that his hypertension, which contributed to his death, was caused or exacerbated by his operational service. The Tribunal needed to apply sections 120(1), 120(3), and 120(4) of the Act in determining if the death was war-caused.

The Tribunal found that the evidence, particularly the testimonies of Mrs Coleman and her wartime colleague, Mr Barlow, indicated a reasonable hypothesis that Mr Coleman's hypertension and subsequent death were linked to his service. Mrs Coleman provided compelling evidence of her husband's excessive salt consumption both during and after his service, which correlated with his high blood pressure issues. The Tribunal considered that the lack of evidence to the contrary meant that the hypothesis of a war-related cause of death was sufficiently supported. Consequently, the Tribunal set aside the previous decision of the Repatriation Commission and determined that Mr Coleman's death was indeed war-caused.

The Tribunal ordered that the decision under review be set aside and that in its place, it be found that Mr Coleman's death was war-caused. As a result, Mrs Coleman was found eligible to receive a war widow’s pension.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution finds that Mr Coleman’s death was war-caused. Accordingly Mrs Coleman is eligible to receive a war widow’s pension.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As Mr Coleman served on operational service, the determination of whether his death was war-caused must include the application of sections 120(1) and 120(3) of the Act. The kind of death is dealt with pursuant to section 120(4) of the Act, the standard of proof being to the reasonable satisfaction of the Tribunal, or on the balance of probabilities.EVIDENCE AND CONSIDERATIONMrs Valma Coleman, the Applicant & widow of Mr Harry Coleman Mrs Coleman provided a statement dated 16 April 2014, and gave oral evidence by telephone. She told me that she first met her husband in August 1950, a couple of years following his return from service. Over the next two years they would see each other approximately once a week or fortnight when he was on leave from his ship. In that time, she said that he was always using salt. She said that his body craved it. They married in 1952, and there always had to be salt on the table. Mrs Coleman said that her husband did not speak much about the diet on the ship on which he served. She said that she did all the cooking at their home. There was a salt canister on the side of the stove for cooking purposes, but in addition, her husband sprinkled salt on everything, to the extent it even went on the tablecloth. Mrs Coleman described the eight inch silver salt shaker with the base the size of a 50 cent piece, which was always on the table, and was refilled approximately once a week. Notwithstanding extensive cross-examination by Mr O’Reilly, she maintained her position regarding the silver salt shaker, and walked away from the telephone in order to get it and make her point. She described a matching pepper shaker which was not used much she said. Mrs Coleman said that both she and her children confronted Mr Coleman many times with regard to his salt consumption, but that he told her he had to have it. Mrs Coleman said that from 1968 (which factually has been shown to be 1976), when Mr Coleman was admitted to RPAH, and found to have kidney problems, her husband always had very high blood pressure. She also said that he had check-ups every 12 months in connection with his job at the railways. Mrs Coleman said that her husband was very unhappy because there was no salt available while he was at RPAH, and he accordingly, would not eat anything. She said that he told her he did not like the taste of food without salt. She said that he was very dedicated to the Veterans Association and followed meetings round Australia. She said that: The Navy was everything to him. Mr William Barlow, a wartime colleague Mr Barlow served on HMAS Lithgow with Mr Coleman, and indicated that with a crew of 90, everyone knew each other. He provided a statement and oral evidence. He said that following discharge from the Navy he lived in Melbourne and saw the Veteran at reunions once or twice a year. Mr Barlow described the salt consumption on the Lithgow, noting that the sick bay attendant handed out salt tablets at meal times. He detailed that each seaman was given one salt tablet a day with Attebrin, an antimalarial medication. Engine room personnel and cooks who worked in areas of great heat, neither of which described MrColeman’s work, were given a second salt tablet. Extra salt tablets were available on request. Mr Barlow was not able to say how much salt was in a salt tablet. He said that he no longer uses salt, and attributed his heart by-pass surgery to the excessive consumption of salt which commenced during his time at the Navy.Mrs Pamela Godden, the Colemans’ daughter

Decision

Reasons for decision

On all the material before it, the Tribunal was not made aware of any evidence which would satisfy it beyond reasonable doubt that Mr Coleman’s death was not war-caused. Mrs Coleman’s application must accordingly succeed. DECISION The Tribunal sets aside the decision under review and in substitution finds that Mr Coleman’s death was war-caused. Accordingly Mrs Coleman is eligible to receive a war widow’s pension.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/0609
Re	Valma Coleman
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms G Ettinger, Senior Member
Date	28 September 2015
Place	Sydney