Davis and Repatriation Commission (Veterans' entitlements) - [2017] AATA 816

Davis and Repatriation Commission (Veterans' entitlements) [2017] AATA 816 (5 June 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/1871
Re:Ruth Davis
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:05 June 2017
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution determines that the death of the late veteran, Joseph Davis, was war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986.
.................................[Sgd].......................................
Senior Member J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – war widow pension – Second World War veteran – Deledio test – Statement of Principles – where Veteran died in a pedestrian-vehicle traffic accident – kind of death – whether kind of death related to the Veteran’s osteoarthritis – whether osteoarthritis was war-related – hypothesis – whether Veteran’s death was causally related to his osteoarthritis - the decision under review is set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986, ss 8, 13, 120, 120A
CASES
Blain v Repatriation Commission [2017] FCA 114
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission [2009] FCAFC 90; 177 FCR 280
Deledio v Repatriation Commision
(1997) 47 ALD 261
Dixon v Repatriation Commission (1999) 29 AAR 235

East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission [2002] FCA 26; 73 ALD 377
Forrester v Repatriation Commission [2003] FCA 898
Hill v Repatriation Commission (1985) 85 ALD 1
Kattenberg v Repatriation Commission
[2002] FCA 412; 73 ALD 365
Knight v Repatriation Commission [2010] FCA 1134

McLean v Repatriation Commission [2001] FCA 243
Repatriation Commission v Bey
(1997) 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877; 95 ALD 619

Repatriation Commission v Deledio
(1998) 83 FCR 82
Repatriation Commission v Webb [1998] FCA 1411; 51 ALD 575
Vietnam Veteran’s Association of Australia NSW Branch Inc v Cohen (1996) 70 FCR 4

SECONDARY MATERIALS
Statement of Principles No 13 of 2010
REASONS FOR DECISION
Senior Member J Sosso
05 June 2017
INTRODUCTION

Mrs Ruth Davis (the Applicant) seeks a review of a decision of the Veterans’ Review Board which determined that the death of her husband, Mr Joseph Davis (the veteran), was not related to his war service and that, accordingly, a war widow’s pension was not payable – Exhibit 1 T2 B2. The Board upheld a decision of the Repatriation Commission (the Respondent) dated 26 February 2015 – Exhibit 1 T7 p. 34.
The veteran was born in August 1923 and grew up in rural New South Wales. Prior to enlisting he worked on rural properties around Leeton as a farm labourer. The Applicant states that he worked on farms that grew fruit for the local cannery. She states that the veteran picked fruit and engaged in general labouring, which entailed heavy manual work. For twelve months he also worked on a rice farm, which requiring lifting heavy bags of rice – Exhibit 3 para 2.
The Applicant met the veteran…

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: [2017] AATA 816
Decision Date: 5 June 2017

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, the widow of a deceased veteran, against a decision of the Repatriation Commission regarding a war widow's pension. The veteran died in a pedestrian-vehicle traffic accident. The core dispute revolved around whether the veteran's death was causally related to his osteoarthritis, and whether that osteoarthritis was war-related, thereby establishing a war-caused death for the purposes of the Veterans' Entitlements Act 1986.

The Tribunal was required to determine the "kind of death" of the veteran and whether this kind of death was war-caused. This involved considering antecedent inquiries, including whether the claimant was a dependant of a deceased veteran, whether the veteran had died, and the medical cause or causes of death. The Tribunal also had to assess whether the veteran's osteoarthritis was war-related and if there was a reasonable hypothesis connecting the veteran's death to his service.

The Tribunal applied the principles outlined in *Collins* and *Codd*, which establish that the "kind of death" is a question of medical causation, determined independently of Statements of Principles. Once the medical cause of death is established, the *Deledio* methodology is applied to determine if the death is war-caused. In this instance, the Tribunal accepted the applicant's hypothesis that the veteran's death was war-caused, finding a reasonable connection between the veteran's death and his service, despite the immediate cause being a traffic accident.

Consequently, the Tribunal set aside the decision under review and substituted a determination that the veteran's death was war-caused within the meaning of the Veterans' Entitlements Act 1986.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The overall hypothesis advanced by the Applicant for her claim for a war widow’s pension is accepted as raising a reasonable hypothesis connecting the veteran’s death with his service. The Tribunal is therefore satisfied, according to the standard of proof mandated by s 120(3), that the veteran’s death was war-caused.DECISION The Tribunal sets aside the decision under review and in substitution determines that the death of the late veteran, Joseph Davis, was war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986.

Ratio Decidendi

Legal Principle Established

In Collins, Mansfield, Stone and Edmonds JJ outlined the antecedent inquiries required of the Tribunal before adopting the Deledio methodology ([18], [20]/284-285):“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:1whether the claimant was a veteran, or a dependant of a deceased veteran;2whether the veteran has suffered an injury or disease or has died…; and3the… cause of death or the ‘kind of death’ of the veteran…those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker...”CONSIDERATIONPreliminary Issues Before applying the Deledio methodology it is first necessary to deal with any anterior or threshold issues. It is not contested that the Applicant is the widow of the deceased veteran and that the veteran rendered eligible war service, including operational service, for the time he was enlisted. It is also not contested that the veteran was struck and fatally injured by a motor vehicle whilst attempting to cross Mains Road Runcorn on 13 December 2013. The next issue is the cause of death. In Collins, the Full Court made the following observations – [47]:“ 47. the ‘kind of death’ in terms of s 120A(2) and (4) is also one which refers to the medical cause or causes of death…The decision about the ‘kind of death’ is also not made by applying s 120 or s 120A or any Statement of Principles under s 196B(2) of the VE Act. It is made independently of them. Once it is made, then for the purpose of deciding whether the ‘kind of death’ is war-caused, in accordance with the Deledio principles, those provisions and any relevant Statement of Principles are to be applied.” A decision of particular relevance and assistance in this context is Repatriation Commission v Codd [2007] FCA 877; 95 ALD 619 (‘Codd’). In that matter the Applicant was the widow of a veteran who served in the Australian Army from 1942 – 1946. In 1968 the veteran was killed when the truck he was driving was struck by a train at a level crossing. The Tribunal found that the ‘kind of death’ was death by road accident. This was despite the Tribunal finding that the veteran had a drinking problem, and the effects of alcohol consumption were likely to impacted on the veteran’s concentration and contributed to the accident. As there was no SoP which applied, the Tribunal applied the law prevailing before the introduction of SoPs. Gordon J made the following observations [31]-[40]:“31 The phrase ‘kind of death met by the person’ in s120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks ‘questions of medical causation’ about the cause of death and does so in a particular context…35 What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.36 The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that death was war-caused and that the cause or at least one the causes of death, was the veteran’s ‘service related alcohol habit[,] the effects of which [had] impaired his concentration and contributed to the fatal collision’…39 On the proper construction of the VE Act, consistent with its evident statutory purpose and existing authority, the ‘kind of death met by the [veteran]’ that is to be considered is the question of medical causation or the kind of death, being a medical cause of death, including the contributing or underlying medical cause of death.40 In the present case, the kind of death met by the veteran was not death by road accident but death from (in the sense of arose out of, or was attributable to) alcohol dependence or alcohol abuse.”