Dulcie Mavis Bottriell and Repatriation Commission - [2013] AATA 878

[2013] AATA 878

Division	VETERANS' APPEALS DIVISION
File Number	2012/4881
Re	Dulcie Mavis Bottriell
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	9 December 2013
Place	Melbourne

The Tribunal affirms the decision under review.

.........................[sgd]...............................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – widow’s claim – death from ischaemic heart disease and hypertension – whether alcohol consumption contributed to hypertension – clinical worsening of hypertension

Veterans' Entitlements Act 1986 ss 8(1), 9(1), 120(1), 120(3), 120A

Forrester v Repatriation Commission [2013] FCA 898

Martin v Repatriation Commission [2012] AATA 744

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Hill [2002] FCAFC 192

Repatriation Commission v Law (1981) 147 CLR 635

Repatriation Commission v Stares [1996] FCA 396

Repatriation Commission v Tuite [1993] FCA 39

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

G. D. Friedman, Senior Member

9 December 2013

Dulcie Bottriell is the widow of George Bottriell (the veteran) who was born in 1926 and died on 10 June 2010 from ischaemic heart disease (IHD) and hypertension. Mrs Bottriell applied to the respondent for a widow’s pension on the basis that the veteran’s alcohol consumption that commenced during his naval service caused hypertension that contributed to his death. The respondent refused the claim and the decision was affirmed by the Veterans’ Review Board (VRB). Mrs Bottriell seeks review of the decision.

LEGISLATIVE FRAMEWORK

The veteran rendered service in the Royal Australian Navy from 9 January 1945 to 3 March 1947. He served in the New Guinea area of the South West Pacific as a clerk in Madang from 5 April 1945 to 16 December 1945 and from 1 July 1946 to 10 February 1947 in the office of Landing Ship, Tank (LST) 3017, a vessel which was designed to support amphibious operations during World War 2 by carrying significant quantities of vehicles, cargo, and troops, and was deployed to recover Allied equipment such as tanks after the Japanese surrender. The veteran’s task was to keep relevant records. The whole of his service constitutes operational service under the Veterans’ Entitlements Act 1986.
Section 8(1) of the Act 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;
…
Section 9(1) of the Act states:
(1)Subject to this section and section 9A, 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:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out…

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: [2013] AATA 878
Decision Date

CaseChat Overview and Summary

Dulcie Mavis Bottriell, the widow of George Bottriell, a veteran who died in 2010 from ischaemic heart disease and hypertension, sought a widow's pension on the basis that the veteran's alcohol consumption during his naval service caused his hypertension, which contributed to his death. The Repatriation Commission refused the claim, and the Veterans' Review Board affirmed the decision. The applicant sought review of that decision by the Tribunal. The Tribunal was required to determine whether the veteran's hypertension was war-caused and if it contributed to his death. The Tribunal found that there was insufficient evidence to support the hypothesis that the veteran's alcohol consumption during his service led to hypertension or the clinical worsening of the condition, and therefore concluded that the veteran's hypertension was not war-caused. The Tribunal affirmed the decision under review.

Orders