Day and Repatriation Commission - [2000] AATA 741

DECISION AND REASONS FOR DECISION [2000] AATA 741

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/479

VETERANS' APPEALS DIVISION       )
           Re      Veronica DAY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date24 August 2000
PlaceSydney

Decision The Tribunal sets aside the decision of the Repatriation Commission dated 3 September 1997 and in substitution therefor determines that the death of Frank Day was war-caused pursuant to s8 of the Veterans' Entitlements Act 1986 and War Widow's pension is payable to Veronica Day with effect on and from 13 July 1997.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERAN'S AFFAIRS – war widow pension – whether death of Veteran war-caused – Veteran died from ischaemic heart disease – Statement of Principles applied – smoking relevant factor in SoP - whether Veteran's smoking habit causally related to service

Veterans' Entitlements Act 1986 – ss8, 120(1), 120(3)
Statement of Principles – Instrument No.140 of 1996, Instrument No.38 of 1999

Repatriation Commission v Keeley [2000] FCA 532
Dixon v Repatriation Commission (1999) 29 AAR 235
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

24 August 2000 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 3 September 1997 which refused a claim for a war widow's pension lodged by Veronica Day ("the Applicant") in respect of the death of her late husband, Frank Day ("the Veteran"). On 25 January 1999, the Veterans' Review Board ("the VRB") affirmed that decision. The Applicant's application to the VRB was lodged out of time, and therefore the earliest effective date for payment of pension to the Applicant is 13 July 1997, being a date not earlier than six months before her application was lodged to the VRB.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant -

Statement of Shirley Margaret Summerson, dated 29 June 1999 (exhibit A);
Statement of William Desmond Mullins, dated 15 November 1999 (exhibit B);
Statement of Alfred Leslie Copping, dated 10 September 1999 (exhibit C).

The Applicant gave oral evidence at the hearing. Mrs Summerson and Mr Mullins gave telephone evidence. Mr Copping and Alexander Hugh Munro also gave oral evidence at the hearing.

The Veteran was born on 15 March 1915. He served in the Australian Army from 18 June 1941 to 15 December 1945 and rendered operational service. The Veteran died on 19 July 1984 at the age of 69 years from a myocardial infarct and coronary atherosclerosis. The clinical notes from the Hornsby and Ku-ring-gai Hospital at the time of his death (T27) recorded that he suffered sudden onset chest pain and acute breathlessness on 19 July 1984 and that prior to his admission he had a three week history of intermittent chest pain associated with shortness of breath, and one day prior to…

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 Day and Repatriation Commission

Details

AGLC: Day and Repatriation Commission [2000] AATA 741
Case: [2000] AATA 741
Decision Date: 24 August 2000

CaseChat Overview and Summary

In the case of Day and Repatriation Commission, the applicant, a war widow, sought a war widow pension under the Veterans' Entitlements Act 1986. The dispute centred on whether the death of the veteran, who died from ischaemic heart disease, was caused by his military service. The court had to consider whether the veteran's smoking habit, which was a relevant factor in the applicable Statement of Principles, was causally related to his service.

The primary legal issue was whether the veteran's smoking habit, which began during his service, was causally related to his military service, and thus could be considered a war-caused death. This required the court to weigh the evidence provided by various witnesses, including the applicant, who had provided inconsistent statements about the veteran's smoking habit, and to assess the credibility of this evidence. The court also had to determine the relevance of the veteran's smoking habit to his ischaemic heart disease in light of the applicable Statement of Principles.

The court found that the evidence indicated that the veteran began smoking during his service in 1942 and continued to smoke until his death. The court accepted the applicant's evidence that the veteran was a smoker in late 1942, despite inconsistencies in the evidence about the exact dates. The court also found that the evidence of the other witnesses, including the veteran's nephew, supported the applicant's evidence that the veteran was a heavy smoker. The court held that the veteran's smoking habit, which began during his service, was causally related to his military service and therefore his death was war-caused. The court relied on the decision in Deledio, which held that a war-related injury could include a disease contracted during service even if the disease only manifested itself after the service ended.

The court ordered that the war widow pension be paid to the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Munro could not remember the Veteran being a carpenter in the Army. He did not see the Veteran when he was discharged from the Army, nor did he keep in touch with the Veteran after the war. other documentary evidence A letter from Dr H Davis, consultant physician, addressed to Dr W Cook dated 27 July 1984 in relation to the Veteran stated, inter alia, (T25)-He normally has no cough and has been a non-smoker for ten years and has never been a heavy smoker. David Thomas Mason (T19), who the Tribunal understands to be the Veteran's nephew, provided a Statutory Declaration on 19 March 1998 stating that he was unable to recall that his uncle (the Veteran) smoked prior to his enlistment in World War 2, at which time Mr Mason was 14 years of age.submissionsApplicant It was acknowledged that there existed inconsistencies in the Applicant's evidence about the commencement and cessation of the Veteran's smoking. However it was submitted that the inconsistencies, at least with respect to her documentary evidence, namely whether the Veteran started smoking in 1933, did not have much significance, because the oral evidence given by her and all the other witnesses was to the contrary. Furthermore, it was submitted that there was no value in the inconsistency about whether the Veteran ceased smoking two years before his death, or that he smoked until death, as the Applicant was adamant in her oral evidence that he ceased two years before his death. Notwithstanding those inconsistencies, it was submitted that the Applicant was certain that she did not recall the Veteran smoking when she first met him in 1942 but that he was smoking in late 1942. It was conceded that the Applicant's credibility was at issue. However it was submitted that her testimony was not deceitful and it corresponded with Mr Mullins' evidence. With respect to the evidence given by all other witnesses, it was submitted that it had a "ring of truth", notwithstanding the minimal time they had spent with the Veteran. In relation to the statement from Dr Davis that the Veteran had been a non-smoker for 10 years and had never been a heavy smoker, it was submitted that on balance, that assertion was clearly not true. According to the testimony of several witnesses the Veteran was in fact quite a heavy smoker when he was in Darwin. Overall, it was submitted that the weight of evidence indicated that the Veteran commenced smoking some time in 1942 on service and remained a smoker until 1982.Respondent It was submitted for the Respondent that the credibility and reliability of the witnesses who gave evidence about the Veteran's smoking should be questioned. It was clear that the Applicant signed the relevant forms without reading them. On that basis, her documentary evidence, at least with respect to the commencement date of smoking and the reason why he began, was not reliable and should be given little weight. It was submitted that the Applicant did not know when the Veteran commenced smoking. The Respondent accepts that the quantity smoked by the Veteran was 2 ozs. tobacco and 3 packets of cigarettes before the Applicant stopped working and 2 ozs. and a carton of cigarettes after she stopped working.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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