Dowzer and Repatriation Commission
[2002] AATA 417
•31 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 417
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/140
VETERANS' APPEALS DIVISION )
Re MARGARET DOWZER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier IRW Brumfield, CBE, DSO, RL
Date31 May 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution thereof determines that the death of the veteran, Gordon Dowzer was war caused and that the Applicant Margaret Dowzer is entitled to receive a widow's pension with effect from 28 April 1998.
………(Sgnd)……………………..
IRW BRUMFIELD
MEMBER
CATCHWORDS
VETERANS' AFFAIRS – Whether reasonable hypothesis – Service Related Drinking Habit
Veterans' Entitlements Act 1986 ss 5(b), 6(a), 8, 119, 120, 120A
Bull v Repatriation Commission [2001] FCA 83
Repatriation Commission v Deledio (1996) 83 FCR 82
Dixon v Repatriation Commission (1999) 29 AAR 235
Byrnes v Repatriation Commission (1993) 30 ALD 1
REASONS FOR DECISION
31 May 2002 Brig IRW Brumfield
This is an appeal by Margaret Dowzer (the Applicant) for the review of a decision of the Repatriation Commission (the Respondent) dated 3 June 1999 that the death of Gordon Dowzer is not service related.
The Tribunal had before it, identified as Exhibit 1, the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T6) and the following documents:
For the Applicant:
Exhibit 2: Medical opinion of Dr Goodwin dated 21 September 2001
Exhibit 3: Statement by the Applicant dated 13 Jun 2001.
Exhibit 4: Statement by Mr. Holzneckt dated 4 March 2002
For the Respondent:
Exhibit 5: Paper by John Tillbrook. Write Way Research Service
Exhibit 6: Bundle of Documents covered be letter from DVA dated 22 Feb 2002 and containing;
Statement of Service
Report of entry examination
Terminal illness note by Dr Mirosch
Medical opinion Dr Grant
Exhibit 7: Medical opinion from Dr Grant of 10 May 2000
The Applicant gave oral evidence.
The applicant is the widow of the veteran who rendered operational service in the Royal Australian Navy in HMAS Sydney from 27 October 1953 to 2 June 1954, in Korean waters.
The veteran was born on 2 August 1930 and died on 12 August 1990. The cause of death is certified as Viral Cardiomyopathy.
It is the Applicant's hypothesis that the veteran developed a drinking habit as a result of his operational service, and that the service-induced drinking habit contributed to his drinking habit after operational service, thus contributing to his death.
Legislative Framework
The question whether the death of each veteran who has rendered operational "service" was war-caused within s 8 of the Veterans' Entitlements Act 1986 (the Act) is to be decided by applying the standard of proof prescribed by s 120 of the Act. With regard to the meaning of the expression "war-caused", the relevant part of s 8 provides:
"(1) Subject to this section, for the purposes of this Act the death of a veteran shall be taken to have been war-caused if
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable. to, an eligible war service-rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duly, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service ; or
(e)the injury or disease from which the veteran died:
(i ) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service, or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war -service rendered by the veteran, being services rendered after the veteran suffered that injury or contracted that disease,. or
(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly, the Commission is not required to relate the death to eligible war service rendered by the veteran and section 120A and 120B do not apply but not otherwise."
Section 120 describes the relevant standard of proof:
"(1) Where a claim under Part II for a pension in respect of the incapacity_from injury or disease of a veteran, or of the death of a veteran, -relates to the operational service rendered by the veteran, the Commission shall determine that the injut31 was a war-caused injury, that the disease has a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by Section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity if a person from injury or disease, or in respect of the death of a person, related to -service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the- whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by Section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or reassessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by Section 120B.
(5) Nothing in the provisions of this section, or in any other provision of this Act shall entitle the Commission to presume that:(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or defence-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under.
(6) Nothing in the provisions of this section, or in any other provision of this Act shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act. or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."
Other relevant provisions of the Act in respect of the claim are as follows:
"119 Commission not bound by technicalities
In considering, hearing or determining, and in making a decision in relation to:(a) a claim or application; …
the Commission:
(f) is not bound to act in a formal manner and is not bound by, any rules of evidence, but may inform itself on any matter in such manner as it thinks just:
(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h) without limiting the generality of the foregoing, shall take into account ant; difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, Cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency tan, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the *-servic4n of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."
Section 120A provides that the reasonableness of hypothesis is to be assessed by reference to the relevant Statement of Principles (SoP).
"120A. Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note1: Subsection 20(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping. service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(IA).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury, or disease of that kind, or in respect of a death of that kind, unless or until the Authority:(a) has determined a Statement of Principles under subsection 196B(2) in respect of that, kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement Of Principles under subsection 196-B(2), nor declared that it does not Propose to make such a Statement of Principles, in respect of(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
Applicant's Evidence
It was the Applicant's evidence that she met her husband in 1956 and married him in 1958.
She recalls that prior to her marriage and after it her husband drank quite heavily, engaged in binge drinking and had been ejected from a hotel on several occasions. Several times he had been picked up by the naval Shore Patrol and returned to his ship.
She had no knowledge of his drinking habits prior to his service in Korea but recalled that he had told her that he did not drink before joining the RAN and began to drink socially after he joined the Navy. She recalled that her husband had told her that he had only started drinking heavily about the time he went to Korea. She also recalled him recounting the incident aboard HMAS Sydney when he saw a sailor badly injured during a landing. The sailor was caught in the landing wires and suffered severe injury to his legs. The veteran thought that the sailor had lost his legs.
She recalled that the veteran began to reduce his drinking after he left the RAN as due to his family responsibilities he felt the need to cut back. This process took about 12 months at which time he had reduced to about 3 to 4 stubbies a day.
SubmissionsIt was common ground that the veteran satisfied Factor 5(b) of the relevant SoP, Instrument No 7 of 1999, namely consuming 250g of alcohol over a specified period. This was conceded by the Respondent.
The question remaining for the Tribunal was to decide whether the veteran's drinking habit was related to his operational service. It was submitted that the Applicants evidence should be accepted, that the veteran did drink socially prior to his operational service, that during such service his drinking was constrained when at sea but that he began binge drinking when on shore leave, that there were stressful events connected with his operational service in Korean waters in HMAS Sydney including seeing a bad accident which left a sailor with badly damaged legs.
The Respondent in final submissions agreed that the issue to be resolved was the causation of the veteran's drinking habit and its connection with his operational service.
The Respondent also concurred with the material before the Tribunal in so far as it satisfied Factor 5(b) of the relevant SoP. The Respondent noted, also, that reference might be made to Instrument No 76 of 1998 - Alcoholic Dependence or Alcohol Abuse. This however was not pursued.
The Tribunal is satisfied that the material before it points to a hypothesis as raised by the Applicant, that is, the veteran's death from alcoholic cardiomyopathy is not incompatible with the listed cause of death that is Viral Cardiomyopathy.
In this respect there is no dispute between the parties. Accordingly, the Tribunal finds that the relevant SoP in this matter is Instrument No 7 of 1999 and that the relevant Factor 5(b) is satisfied.
In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 the Full Court said:
"If a SoP is in force the Tribunal must then form the opinion whether a hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be *-related-* to the person's -service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed.
If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it In so doing, no question of onus of proof or the application of any presumption will be involved."As stated in Dixon v Repatriation Commission (1999) 29 AAR 235, with respect to steps 3 and 4 outlined in paragraph 31 above, Wilcox J said:
"24. ... In the present case the Tribunal fused together steps 3 and 4. It should have resolved step 3 by determining whether the claims made in the material before it satisfied the factor requirements of the Statement of Principles relating to generalised anxiety disorder, that is, still considering them as claims and without making any judgement about their truth. If the AAT had answered this question in the affirmative, the initial step would have been to consider the truth of the claims, this being a step in carrying out the obligation imposed on the Tribunal by s 20(1) of the Act to decide whether it is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused. If the Tribunal had been satisfied beyond reasonable doubt that Mr Dixon did not undergo the experiences he claimed, or that any experiences he did undergo did not cause the generalised anxiety disorder he claimed to suffer, this would have been a proper basis for achieving the satisfaction mentioned in s 120(1) and dismissing his appeal.
25. The question whether a decision-maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision-maker will rule against a claimant simply because he or she is not persuaded the claimant's story is probably true. Although the decision-maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision-maker is likely to reject the application even though he or she thinks the claimant's story may possibly be true. This would defeat the protection for veterans embodied in s 120(1), whereby a claim which fits the factors in the relevant Statement Of Principles must be accepted unless the decision maker is satisfied, beyond reasonable doubt, that it is without justification."
Further, the High Court in Byrnes v Repatriation Commission (1993) 30 ALD 1 stated:
"(2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt,- or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis."
The Tribunal is satisfied that the hypothesis advanced by the Applicant is consistent with the template of that SOP and further that the requirement that Factor 5(b) be connected to the veteran's operational service is pointed to by the raised facts. The Tribunal is satisfied, therefore that the raised hypothesis is a reasonable hypothesis.
Turning now to the facts necessary to support the hypothesis:
There is no dispute between the parties and the Tribunal accordingly finds that the veteran's consumption of alcohol meets Factor 5(b) of the SoP.
The only evidence of pre-operational service drinking is that offered by the Applicant when she stated that the veteran told her that he did not drink prior to joining the Navy, began to drink socially after he joined the Navy and started to drink heavily about the time he went to Korea. The veteran also told her that, when on shore leave during his operational service "he would often go on binge drinking sessions".
The statement of John Holzneckt confirmed that sailors in HMAS Sydney" really hit the grog when ashore". There is however, no evidence of an established drinking habit prior to his operational service. There is evidence that the veteran continued to drink heavily after that service, and that he began curtailing his drinking, beginning in 1961, to try to meet his family responsibilities.
After careful consideration of all the material before it and the submissions of both parties, the Tribunal is not satisfied beyond reasonable doubt that the facts upon which the hypothesis is grounded are not present.
The Tribunal therefore cannot be satisfied beyond reasonable doubt that there is no sufficient ground for not determining that the death of the veteran is war caused.
The Tribunal finds that the death of the veteran was war caused and that the Applicant is entitled to a war widow's pension from 28 April 1998.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier IRW Brumfield, CBE, DSO, RL
Signed: .............................................................................
AssociateDate/s of Hearing 13 March 2002
Date of Decision 31 May 2002
Counsel for the Applicant Mr Harding
Solicitor for the Applicant Gilshenan & Luton
Solicitor for the Respondent Mr Smith, Departmental Advocate
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