Daley and Repatriation Commission - [2002] AATA 831

DECISION AND REASONS FOR DECISION [2002] AATA 831

ADMINISTRATIVE APPEALS TRIBUNAL        Nº N2001/552
VETERANS' APPEALS DIVISION
  Re:         BRIDGET KATHLEEN DALEY
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       Mr P.J. Lindsay, Senior Member
Date:             23 September 2002
Place:            Sydney

Decision:The decision under review is affirmed.

[SGD]Senior Member
CATCHWORDS Veterans' Affairs – whether veteran's ischaemic heart disease war-caused – whether veteran's smoking arose from war service
Veterans' Entitlements Act 1986 – ss.7(1), 9, 13, 120(4), 120B(3), 196B(14)
Repatriation Medical Authority Statement of Principles Instrument No.39 of 1999 concerning Ischaemic Heart Disease
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Keenan, Federal Court, 29 September 1989, G51/1989
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Edwards, Federal Court, 3 September 1993, G250/1993
Re White and Repatriation Commission (AAT 11417, 20 November 1996)

REASONS FOR DECISION

Mr P.J. Lindsay, Senior Member

This is an application to review a determination by the Repatriation Commission (the Commission) dated 5 May 2000 that the applicant, Ms Bridget Kathleen Daley, is not entitled to be granted a pension in respect of her ischaemic heart disease. The Veterans' Review Board (the Board) had affirmed the Commission's decision on 22 February 2001.
At the hearing Ms Daley was represented by Mr B. Winship, solicitor, and the Commission by Mr J. Marsh, an advocate with the Department of Veterans' Affairs. Ms Daley gave evidence. There were no other witnesses. The Tribunal had before it the documents lodged under s.37 Administrative Appeals Tribunal Act 1975 and the exhibits tendered at the hearing.
issue
The parties agreed that the only issue for the Tribunal's determination was whether Ms Daley's ischaemic heart disease was causally connected with her eligible war service. It was common ground between the parties that ischaemic heart disease was connected with her smoking. The Tribunal therefore had to decide whether Ms Daley's smoking arose out of or was attributable to her war service.
evidence
Ms Daley was born at Coraki in northern New South Wales on 10 October 1922. Her father was a riverboat captain. She had three sisters and two brothers.
Ms Daley is a former member of the Royal Australian Air Force and served within Australia only. Her service started on 2 September 1942 when she enrolled in the Women's Auxiliary Australian Air Force and then went into basic training, or rookies as she called it. On completing her basic training at Sandgate, Ms Daley was posted to the Forward Echelon in Brisbane during November 1942. Forward Echelon was the Chief of the Air Staff's Brisbane headquarters. All of the head Air Force officers in Brisbane were based in that office, which was on the sixth floor of a city building. She worked there as a telephone operator and receptionist, attaining the rank of corporal, until her discharge on demobilisation on 21 March 1946. Ms Daley said she handled important communications and she was very busy all day. She operated the switchboard and a scramble phone. Ms Daley said she would…

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 Daley and Repatriation Commission

Details

AGLC: Daley and Repatriation Commission [2002] AATA 831
Case: [2002] AATA 831
Decision Date: 23 September 2002

CaseChat Overview and Summary

In the case of Daley v Repatriation Commission, the primary issue before the court was whether Ms. Daley's ischaemic heart disease was causally connected with her eligible war service in the Royal Australian Air Force. The central question that arose from this was whether Ms. Daley's smoking habit, which was acknowledged as a contributor to her heart disease, was attributable to her war service. The court was required to determine if there was a causal link between her war service and her smoking, and whether this could be considered as a war-caused disease under the Veterans' Entitlements Act 1986.

The court examined the statutory provisions under the Act, particularly sections 9 and 120B(3), which necessitate a connection between the war service and the disease in question. The relevant Statement of Principles concerning Ischaemic Heart Disease also played a critical role in the court's deliberations. The court considered the precedent set in Repatriation Commission v Tuite (1993) 39 FCR 540, which emphasized the need for a causal, rather than merely temporal, connection between the war service and the disease. The court scrutinised the evidence presented, including Ms. Daley's testimony and the documentary evidence, to ascertain if her smoking habit, which started during her service, was indeed attributable to her war service and not merely a consequence of the environment in which she found herself during that period.

After reviewing the evidence and the applicable legal principles, the court concluded that there was insufficient evidence to establish a causal connection between Ms. Daley's war service and her smoking habit. The court found that while Ms. Daley's smoking began during her service, it did not arise out of or was attributable to her eligible war service. Consequently, the court determined that her ischaemic heart disease was not a war-caused disease within the meaning of the Act. The Tribunal's decision was upheld, finding no relevant connection between Ms. Daley's war service and her smoking, which was a necessary prerequisite for the disease to be considered war-caused.

The court's final orders affirmed the decision of the Repatriation Commission, denying Ms. Daley's claim for pension on the basis that her ischaemic heart disease was not a war-caused disease.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties agreed that the only issue for the Tribunal's determination was whether Ms Daley's ischaemic heart disease was causally connected with her eligible war service. It was common ground between the parties that ischaemic heart disease was connected with her smoking. The Tribunal therefore had to decide whether Ms Daley's smoking arose out of or was attributable to her war service.evidence Ms Daley was born at Coraki in northern New South Wales on 10 October 1922. Her father was a riverboat captain. She had three sisters and two brothers. Ms Daley is a former member of the Royal Australian Air Force and served within Australia only. Her service started on 2 September 1942 when she enrolled in the Women's Auxiliary Australian Air Force and then went into basic training, or rookies as she called it. On completing her basic training at Sandgate, Ms Daley was posted to the Forward Echelon in Brisbane during November 1942. Forward Echelon was the Chief of the Air Staff's Brisbane headquarters. All of the head Air Force officers in Brisbane were based in that office, which was on the sixth floor of a city building. She worked there as a telephone operator and receptionist, attaining the rank of corporal, until her discharge on demobilisation on 21 March 1946. Ms Daley said she handled important communications and she was very busy all day. She operated the switchboard and a scramble phone. Ms Daley said she would quite often have to ring General MacArthur's headquarters or put their calls through. When Ms Daley was growing up, her father was the only member of her family who smoked. Her mother did not smoke. None of her girlfriends smoked. She said smoking was frowned upon by her parents. Her brothers started to smoke only in later years. There was certainly no encouragement at home or within her social group to take up smoking. On first being posted to the Forward Echelon, there were not any Women's Auxiliary Australian Air Force barracks in Brisbane. Ms Daley lived with an uncle and aunt in Kalinga, a suburb in Brisbane, for a bit less than twelve months until the barracks were established at Clayfield. Neither uncle nor aunt smoked, but their son, aged seventeen at the time, was a smoker. Ms Daley occasionally bought cigarettes from the canteen at her place of work and gave them to him. She could not recall her cousin offering her a cigarette. In her undated statement (Exhibit A1) Ms Daley said:I grew up at Coraki, near Lismore. When I joined the Airforce I moved to Brisbane to live with my aunt. Shortly after joining up I was offered a cigarette and developed the habit of smoking. This was in 1943. I was soon smoking 20 cigarettes a day. Everyone else was smoking and it seemed the thing to do. When I was discharged I was given a chit from the Discharging Officer to get cigarettes from a tobacconist. I continued to smoke between 20 and 30 cigarettes a day until July 1979.… Ms Daley also received a couple of cartons of cigarettes a month from an American soldier, a non-smoker, who regularly used to deliver official documents to her office. In each carton there were ten packets of 20 Chesterfield cigarettes, which she herself would smoke. Gradually her smoking increased and Ms Daley would buy four packets a week, supplemented by the cartons of American cigarettes. Ms Daley would smoke at her aunt and uncle's home and she could not recall if they spoke to her about smoking or tried to discourage her from smoking. She said she was well and truly a smoker by the time she moved into the barracks at Clayfield, towards the end of 1943. Ms Daley said she did not know if she could have done her job without having smoked. She said she would have needed something because it was a very stressful, very busy job.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Marsh submitted that Ms Daley's service provided merely the setting for her commencing to smoke. The connection between service and her smoking was not causative but temporal. consideration and findings Subject to the Act, the Commonwealth is liable to pay pension by way of compensation to a veteran who has become incapacitated from a war-caused injury or war-caused disease: s.13 of the Act. The circumstances in which a veteran's injury or disease will be taken to be a war-caused injury or war-caused disease are set out in s.9 of the Act. There was no dispute between the parties that Ms Daley rendered eligible war service (s.7(1)(c)) but not operational service. Relevantly, s.9(1) provides:Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: …(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; … In determining whether Ms Daley's ischaemic heart disease was war-caused, s.120B(3) requires the Tribunal to be satisfied that there is material that raises a connection between the disease and service, and a Statement of Principles (SoP) that upholds the contention that the disease is on the balance of probabilities connected with service. The relevant SoP is Instrument No. 39 of 1999 concerning Ischaemic Heart Disease which states:Basis for determining the factors3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans or members of the Forces. It was contended for the Commission that the Tribunal ought to affirm the decision under review by finding that there was no relevant connection between Ms Daley's war service and her smoking. In support of this argument, reliance was placed on the Full Federal Court's judgment in Repatriation Commission v Tuite (1993) 39 FCR 540. Davies J (at 541) discussed the meaning of the expressions "arose out of, or was attributable to" eligible war service in s.9(1)(b) of the Act as follows:The words of s.9(1)(b) require that there be a causal connection between the eligible war service and the disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease. … Under s.9(1)(b), but not under ss.9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. On the basis of Ms Daley's uncontradicted evidence, the written evidence tendered at the hearing and the material in the T documents, the Tribunal makes the following findings of fact: