Delaney and Repatriation Commission
[2009] AATA 507
•3 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 507
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4597
GENERAL ADMINISTRATIVE DIVISION ) Re LILLA DELANEY Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM
On 17 August 2009, the Tribunal directed the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by replacing the date “1 January 2006” with “2 January 2006”.
DECISION
Tribunal Mrs Josephine Kelly, Senior Member Date3 July 2009
PlaceSydney (heard in Bathurst)
Decision The decision of the Veterans’ Review Board dated 1 August 2007 is set aside. I substitute the decision that Mr Delaney’s death was war-caused and a war widows’ pension is payable to Mrs Delaney with effect from 1 January 2006.
....................[sgd]..........................
Senior Member
Mrs Josephine Kelly
CATCHWORDS
VETERANS’ AFFAIRS – War widow’s pension – Claim for – Refused – Whether veterans’ death war-caused – Kind of death – Statement of Principles – Malignant neoplasm of the Colorectum – Held factor connecting death by cancer to eligible service – Alcohol consumption caused by service - Decision set aside – Substituted decision eligible for war widows' pension
Veterans’ Entitlements Act 1986, ss 119, 120, 120A
Statement of Principles concerning Malignant Neoplasm of the Colorectum (No 2 of 2004)
REASONS FOR DECISION
3 July 2009 Mrs Josephine Kelly, Senior Member INTRODUCTION
1. Mr James Delaney died on 1 January 2006. His widow, Mrs Lilla Delaney, seeks the review of the decision made on 30 March 2006 by the Repatriation Commission (the Commission) to refuse her claim for a pension in respect of the death of her husband. The Commission determined that Mr Delaney’s death was not related to service, pursuant to the Veterans’ Entitlements Act 1986 (the Act). The Veterans’ Review Board (VRB) affirmed that determination on 1 August 2007.
ISSUES
2. By the end of the hearing, the only issue between the parties in these proceedings was whether I should accept the evidence of Mrs Delaney that her husband did not drink alcohol before serving in the Army during World War II but did drink when he left the Army as a result of his service.
3. In order to understand the significance of the acceptance or rejection of Mrs Delaney's evidence, it is necessary to understand what the issues were at the beginning of the hearing. In simple terms the question was whether Mr Delaney's service caused his death. The relevant legislation makes answering that question rather more complex (ss 120 and 120A of the Act). The legislation requires the following questions to be answered:
- Was the "kind of death" suffered by Mr Delaney, Ischaemic Heart Disease (IHD), and/or colon cancer or a non-malignant colorectal adenoma?
- If either or both are the kind or kinds of death, there being Statements of Principle (SoP) in force for each of them, are the necessary criteria in the relevant SoP satisfied which link Mr Delaney's service with IHD and/or colon cancer?
THE AGREED FACTS
4. It was agreed that Mr Delaney's service between 7 October 1939 to 5 November 1939, 9 May 1940 to 24 July 1940 and finally 19 January 1942 to 19 January 1944 was eligible war service as defined by the Act. The consequence is that this case is to be determined on the balance of probabilities (s 120(4) of the Act).
5. If Mrs Delaney is successful, the earliest date of effect is 1 January 2006, being the date after Mr Delaney's death and within three months of the application to the Commission.
6. Both parties accepted that the "kind of death" suffered by the Veteran was death from colon cancer. Mr Snell, solicitor who appeared for the Commission, said that the tumour was probably malignant. Mr Vincent put an alternative argument based on IHD, However, given the conclusion I have come to it unnecessary for me to consider that argument.
7. Mr Snell conceded, on behalf of the Commission, that Mr Delaney had a very significant level of alcohol consumption which was sufficient to attract the thresholds in each of the Statement of Principles relied upon in the case put by Mr Vincent who appeared for Mrs Delaney. Relevantly, that is factor 5(c) of Statement of Principles concerning Malignant Neoplasm of the Colorectum (No 2 of 2004) (the SoP) which provides:
5. The factor that must exist before it can be said that, on the balance of
probabilities, malignant neoplasm of the colorectum or death from
malignant neoplasm of the colorectum is connected with the
circumstances of a person’s relevant service is:
…
(c) drinking at least 500 kilograms of alcohol within a 25 year period
within the 30 years immediately before the clinical onset of
malignant neoplasm of the colorectum; or
.
8. Therefore, the only question for me to decide was whether I accepted Mrs Delaney's evidence that Mr Delaney's drinking had the necessary causal connection with his service.
THE CASE FOR THE COMMISSION
9. Mr Snell argued that Mrs Delaney's evidence was unsatisfactory and therefore I should not find the necessary causal relationship between Mr Delaney's service and his consumption of alcohol. He cautioned against applying s 119 of the Act to make a finding of fact where there is insufficient evidence.
10. He submitted that Mrs Delaney's oral evidence was difficult to align with the content of her written statement. When asked questions about the matters she had included in her statement she was unable to give a response. She was unable to recall any discussions she had had with her husband about his war service.
11. Mr Snell also pointed to other chronological inconsistencies in her evidence about when Mr Delany had driven her home from shopping, after having said that at that time he was using a motorised scooter. He said that he did not criticise, Mrs Delaney but her age and frailty contributed to her evidence being unreliable.
12. His concluding submission was that I would not be satisfied more probably than not by her account that Mr Delaney's service had caused him to start drinking alcohol.
CONSIDERATION
13. When Mrs Delaney gave oral evidence before me, she was 89 years old. I accept Mr Snell's submission that she was frail and her oral evidence was not persuasive. However, I think it is appropriate to take into account that Mrs Delaney was in unfamiliar surroundings - a large, old-fashioned country courthouse, which can be intimidating to anyone not used to court proceedings. I do not consider that that circumstance should cause me to disbelieve what she had set out in her written statement, prepared and signed in June 2008, about nine months before she gave her oral evidence. I infer that her statement would have been prepared in less unfamiliar and less intimidating surroundings than the court room. I also note that at that time she was sufficiently clear of mind to make corrections to hers and her husband's ages when they met. The typed ages were 16 and 18 respectively. She has carefully struck out those ages and written by hand "14" and "16" and initialled and dated the changes "18.6.08".
14. I accept Mrs Delaney's evidence that her husband's service caused him to begin drinking alcohol. Mrs Delaney said in her statement that Mr Delaney did not drink alcohol at all before he was called up for service on 19 January 1942 and that, after his return, he drank alcohol, and his consumption of alcohol increased over time until Mr Delaney was admitted to Bathurst hospital in 2001. Mr Delaney told Mrs Delaney that he felt isolated, and he drank to relieve anxiety and loneliness while on service.
15. It follows, that I am satisfied that Mr Delaney's death from malignant neoplasm of the colorectum was war-caused (ss 120 and 120A of the Act).
DECISION
16. The decision of the VRB dated 1 August 2007 is set aside. I substitute the decision that Mr Delaney’s death was war-caused and a war widows’ pension is payable to Mrs Delaney with effect from 1 January 2006.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.
Signed: ………[sgd].……..
Steven Mulipola, Associate
Date of hearing: 23 March 2009
Date of final submissions: 31 March 2009
Date of decision: 3 July 2009
Counsel for the Applicant: Mr M Vincent
Solicitors for the Applicant: Kemp & Co Lawyers
Solicitors for the Respondent: Sparke Helmore
0
0
0