Corbett and Repatriation Commission - [2001] AATA 498

DECISION AND REASONS FOR DECISION [2001] AATA 498

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1794

VETERAN'S APPEALS DIVISION       )
           Re      ELAINE BETTY CORBETT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell

Date7 June 2001
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefore determines that the death of the late veteran was war caused and that the Applicant is entitled to payment of a War Widow's Pension with the date of effect being 7 March 1999.

(Sgd) Dr J D Campbell
Member
CATCHWORDS
Veterans' entitlement - death of veteran - ischaemic heart disease - smoking - alcohol - hypertension - whether death war caused - widows pension

Veterans' Entitlements Act 1986

Sayer and Repatriation Commission (1999) AATA 524
Wade and Repatriation Commission (AAT 13092, 14 July 1998)
Repatriation Commission v Hughes (1990) 13 AAR 34

REASONS FOR DECISION

Dr J D Campbell

In this application Mrs Corbett ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 13 April 1999 that determined that the death of her late husband Mr Geoffrey Corbett was not related to service. This decision was reviewed and affirmed by the Veterans' Review Board ("VRB") in a decision dated 14 October 1999.
A hearing was held before the Tribunal on 13 October 2000 at which the Applicant was represented by Mr Vindin of Counsel and the Respondent by Mr Wallis, a solicitor from The Department of Veterans' Affairs. The Applicant presented oral evidence prior to the matter being adjourned for both parties to obtain further medical reports. A resumed hearing was held on 19 February 2001, with Mr Modder, a solicitor from the Department of Veterans' Affairs representing the Respondent.

The following material was placed into evidence before the Tribunal:
Exhibit No     Description    Date
T1-T15 pp1-61 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Medical Report of Dr Miller 22 May 2000
A2      Medical Report of Dr Gertler         26 June 2000
A3      Statement of Mrs Corbett   22 March 2000
A4      Statement of Mrs Corbett            16 June 2000
A5      Statement of Mr Hays        14 June 2000
A6      Statement of Mr Cowley     19 July 2000
A7      Clinical notes of Dr Romero re Mr Corbett
A8      Applicants' Statement of Facts and Contentions          25 July 2000
A9      Supplementary Medical Report of Dr Miller       11 February 2001
A10     Applicants' Amended Statement of Facts and Contentions     15 February 2001
R1      Historical Report of Lt Colonel Conant    12 October 2000
R2      Respondents' Statement of Facts and Contentions     11 October 2000
R3      Medical Report of Dr Richards, with last two paragraphs deleted      22 January 2001

Legislation

The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 5AB, 6,7,8,9,13,119,120,196B.
The relevant statements of principles are as follows:

Statement of Principles Instrument No 81 of 1998 concerning Ischaemic Heart Disease;
Statement of Principles Instrument No 77 of 1998 concerning Psychoactive Substance Abuse or Dependence;

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 Corbett and Repatriation Commission

Details

AGLC: Corbett and Repatriation Commission [2001] AATA 498
Case: [2001] AATA 498
Decision Date: 7 June 2001

CaseChat Overview and Summary

The case of Corbett and Repatriation Commission involves the widow of a deceased veteran seeking a war widow's pension. The widow, the applicant, argued that her husband's death from ischaemic heart disease was related to his war service, specifically due to his smoking habit that began during service. The Repatriation Commission, the respondent, rejected the application, leading to an appeal before the Administrative Appeals Tribunal. The Tribunal was tasked with determining whether the veteran's death was related to his war service, focusing on the onset of his smoking habit during service and its connection to his ischaemic heart disease.

The primary legal issue before the Tribunal was whether the veteran's ischaemic heart disease, which caused his death, was related to his war service. This involved examining the onset and progression of the veteran's smoking habit and its potential link to stressful events during his service. The Tribunal had to assess if the smoking habit, which started during service and continued post-service, was significantly influenced by his war experiences and if this habit contributed to his ischaemic heart disease.

In reaching its decision, the Tribunal noted that the veteran's smoking habit began during his service and escalated to 40 cigarettes a day by the time of his discharge. Despite efforts to quit, he continued to smoke until shortly before his death. The Tribunal found that the onset of his ischaemic heart disease was six months before his death and recognised the difficulties in establishing a direct causal link between the smoking habit and the disease due to the interplay of other factors such as hypertension and the passage of time. However, the Tribunal concluded that the smoking habit, which was initiated and significantly escalated during service, was a substantial factor contributing to the veteran's ischaemic heart disease. Given the clear connection between the smoking habit and service, and the role this habit played in the development of the disease, the Tribunal found that the veteran's death was related to his war service.

The Tribunal ordered that the application for a war widow's pension be allowed, effective from the day after the veteran's death, recognising the service-related nature of his ischaemic heart disease. This decision underscores the importance of considering the totality of evidence, including historical records and witness statements, in establishing the service-related nature of a veteran's condition.

Orders

Orders of the court

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Background

Background to the litigation

The relevant issue in this matter is whether the death of the late veteran, Mr G Corbett, was related to his service.Background and File Evidence The late veteran rendered eligible war service but not operational service in World War II from 11 June 1944 to 27 May 1946. At the time of the veteran's death on 6 March 1999, the Respondent had accepted as a war caused disability sensory- neural deafness. Cause of the late veteran's death was nominated as acute myocardial infarct, with the presence of ischaemic heart disease for six months. The Applicant lodged an application for war widow's pension with the Respondent on 8 April 1999. In this application, the Applicant described the late veteran as a very heavy smoker and drinker, having been a non-smoker and a non-drinker prior to enlistment. (T4) In a smoking questionnaire accompanying the application, the Applicant stated that the late veteran commenced smoking shortly after enlistment in 1941; that he smoked cigarettes or two ounces of tobacco per day and that he commenced smoking because of peer pressure and ready availability of tobacco. Further the Applicant indicated that the late veteran stopped smoking some "20 years ago on doctors orders" (T6). In an accompanying alcohol questionnaire the Applicant stated that the late veteran started drinking alcohol shortly after enlistment in 1941 because of peer pressure and stress of service, and that between 1941-46 he was a heavy drinker. The Applicant stated that during the period 1946 to 1994, the late veteran was a heavy drinker, consuming two to four stubbies plus wine and beer at the RSL Club, with the duration of consumption not defined. The late veteran is stated to have ceased drinking alcohol in 1994 on doctors' orders. (T6) The Applicant's claim was rejected by the Respondent on 13 April 1999, (T7). In a request dated 5 May 1999 for review by the VRB, the Applicant stated that her husband "ceased smoking in 1980 which was basically true but he often took a cigarette in certain circumstances up until and nearing his death, because he had cut it down so much he always said he had stopped smoking" (T8). The VRB affirmed the previous decision on 14 October 1999 (T13).Applicant's Evidence The Applicant informed the Tribunal that she met her husband some two months after discharge in 1946, and his family some four to five months later. At that time he did not talk much about his war experiences, but did state that he did not smoke before he enlisted. The Applicant stated that her husband had "a cigarette in his fingers from the day she met him" and that neither he nor his brother smoked prior to the Army. The Applicant said that the veteran's mother did not like her sons smoking and that she did not condone it, and when they came home on leave, they would have to go outside to smoke. The Applicant further stated that when she first met him he would smoke as much as he could get, together with smoking a pipe, which he had acquired while in the army. Further, after the late veteran joined the army, his father used to collect his tobacco ration and forward it to his sons.

Evidence

Evidence Before The Court

The Applicant's claim was rejected by the Respondent on 13 April 1999, (T7). In a request dated 5 May 1999 for review by the VRB, the Applicant stated that her husband "ceased smoking in 1980 which was basically true but he often took a cigarette in certain circumstances up until and nearing his death, because he had cut it down so much he always said he had stopped smoking" (T8). The VRB affirmed the previous decision on 14 October 1999 (T13).Applicant's Evidence The Applicant informed the Tribunal that she met her husband some two months after discharge in 1946, and his family some four to five months later. At that time he did not talk much about his war experiences, but did state that he did not smoke before he enlisted. The Applicant stated that her husband had "a cigarette in his fingers from the day she met him" and that neither he nor his brother smoked prior to the Army. The Applicant said that the veteran's mother did not like her sons smoking and that she did not condone it, and when they came home on leave, they would have to go outside to smoke. The Applicant further stated that when she first met him he would smoke as much as he could get, together with smoking a pipe, which he had acquired while in the army. Further, after the late veteran joined the army, his father used to collect his tobacco ration and forward it to his sons. The Applicant further stated that her late husband cut down his cigarette smoking to six a day in 1987 and that he more or less stopped some 18 months prior to his death, because of a history of some chest pain, for which he received much medication. The Applicant also described some particular events which were stressful for her late husband during his period of service, namely:(a) when exercising with LCM'S at Trinity Bay to the north of Cairns, there were young soldiers involved who could not swim and when laden with full packs they became anxious and cried. This the Applicant reports as upsetting her late husband, as he felt they should have been taught to swim, before being involved in such beach landing exercises;(b) the death in a motor bike accident during service of Leslie Clack, who served with the late veteran in his early army career; and (c) experiences in Broome which he did not talk about to any great extent. In response to questions in cross examination, the Applicant confirmed that during his period of heavy smoking he would smoke 40 a day; that he would enjoy an Anzac Day reunion at home; and that he never talked about his Western Australian experiences or about experiences in Newcastle and was much more interested in talking about his children. Further when he did tell her things about Dallas he was upset and stressed, that "he was not a man to talk about his responsibility, he just accepted it" and the episode with the landing barges did not make him smoke more.Statement of the Applicant In relation to the issue of when her late husband stopped smoking, the Applicant detailed the following in her statement of 16 June 2000:". . .9. I refer to folio 30 of the T-documents. I note that I stated on this questionnaire that my husband ceased smoking in approximately 1979 on doctor's orders. This is incorrect. In 1979, my husband's doctor did tell him that he had to quit as his health was being affected by his habit. He told the doctor that he would quit but he never gave the habit away. My husband kept on smoking especially when he was drinking. He did try very hard to give away his smoking addiction but found it too hard and therefore, he cut down quite significantly and was smoking from this time at least twenty cigarettes per day.10. I filled out the smoking questionnaire only one month after my husband died and was very stressed when I was filling it out. My husband had cut down his smoking but had certainly not ceased. I felt that if I had not stated that he quit smoking on the doctor's advice, that I would be being disloyal to my husband as he felt very bad and also stressed that he had not stopped as the doctor advised him. He used to tell everyone he had ceased due to this guilty feeling, however, he had only cut down the number of cigarettes he was smoking. I think that part of my husband's embarrassment and guilt in this regard was because I ceased smoking on the day that he was advised to quit in an effort to try and encourage him to do so also. I remember that he did not believe that I would do it and so I went out into the back yard and threw away all my cigarettes and told him that if I could do it, then he could too. I know he tried very hard but he found it too difficult to quit the habit altogether.11. My husband's smoking habit changed again in approximately 1987 when he was diagnosed with pernicious anaemia. He was very frightened about the deterioration in his health and therefore, cut down on the number of cigarettes he was smoking to approximately six per day. He knew he should have given up but could not cut the habit out entirely.12. My husband ceased smoking approximately one and a half years before he died. I think he recognised that he could no longer take his health for granted and his deteriorating health was scaring him.. . . " (Exhibit A4)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Respondent contended that the recorded history of alcohol and smoking failed to establish a causal link between alcohol, smoking and service, and that it had not been demonstrated that the late veteran was exposed to the necessary stressful events or that smoking increased as a result of his service. In making such a contention the Respondent relied upon the decision in Repatriation CommissionvHughes (1990) 13 AAR 34. In relation to the issue of alcohol, the Respondent relies upon the opinion of Dr Miller, and for both smoking and alcohol on the opinion of Dr Richards.Consideration and Findings In preliminary observations the Tribunal notes that the standard of proof in this matter is one of reasonable satisfaction pursuant to s120(4) of the Act in that the late veteran's service did not involve any operational service. Further the Tribunal notes that the date of effect is 7 March 1999, if the Applicant is successful in her claim, being the day after the date of her late husband's death. In turning to issues of fact, the Tribunal, having reviewed the evidence of the Applicant, and the medical and historical evidence as obtained from the particular statements and Write Way Research and importantly noting and acknowledging that the Respondent does not contest the revised history of smoking for the late veteran as described by the Applicant, makes the following findings of fact:(a) the late veteran's cause of death was ischaemic heart disease;(b) the clinical onset of the late veteran's ischaemic heart disease was six months prior to his death (Drs Miller and Richards);(c) the late veteran had suffered from hypertension for many years (1987 noted in clinical records of Dr Romero);(d) the late veteran did not smoke before enlistment;(e) the late veteran commenced smoking while in the army and prior to his first leave;(f) the late veteran was smoking at the rate of 40 cigarettes per day at the time of discharge;(g) the late veteran continued to smoke at this rate until 1987 when he reduced the rate to approximately six a day;(h) the late veteran continued to smoke at the rate of six a day until 18 months before his death;(i) the late veteran did not drink prior to enlistment;(j) the late veteran commenced drinking during his service and was a heavy drinker in 1946; and(k) the late veteran continued to drink considerable daily quantities of alcohol to 1994 when he ceased. The Tribunal recognises that in this matter there are particular difficulties in obtaining exact details of significant issues and that this is due to a variety of records, the effluxion of time, difficulties with memories and the death of the late veteran. The Tribunal particularly acknowledges the difficulties associated with the detailing of stressful experiences. The Tribunal observes that the Applicant has submitted that there are two possible contentions in this matter, by which the late veteran's death can be causally related to his service. The first of these relates to the late veteran's smoking habit being a causal factor in his ischaemic heart disease, with the issue remaining as to whether his smoking habit was connected to service.