Eileen Pye and Repatriation Commission

Case [2015] AATA 201

[2015] AATA 201  

Division Veterans' Appeals Division

File Number(s)

2013/6752

Re

Eileen Pye

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Dr P McDermott RFD, Senior Member
Date 31 March 2015
Place Brisbane

I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that Eileen Pye is entitled to a widow’s pension. The date of effect of this decision is 12 March 2012.  

................................[Sgd]........................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

War widow's pension – whether death war-caused – where no operational service – whether alcohol and tobacco consumption related to service – stress – acute renal failure – decision set aside and substituted

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) s 13

Statement of Principles concerning Malignant Neoplasm of the Colorectum No. 38 of 2013
cl 5-6, 9

Statement of Principles concerning Hypertension No. 64 of 2013 cl 3, 6

CASES

Collins v Repatriation Commission (2009) 177 FCR 280

Repatriation Commission v Hancock [2003] FCA 711

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

31 March 2015

INTRODUCTION

  1. Mrs Eileen Pye (“the applicant”) is the widow of the late Mr William Pye (“the veteran”) who served in World War Two. The applicant has made a claim for a war widow’s pension. I have to determine whether the death of the veteran was war-caused.

  2. The parties accept that if the applicant succeeds in this application the date of effect of any decision to grant her widows pension should be 12 March 2012.

    PRIOR DECISIONS

  3. On 20 July 2011 the applicant lodged her claim for a war widow’s pension. On 12 September 2011 a delegate of the Repatriation Commission (“the respondent”) rejected her claim. On 5 September 2013 that decision was affirmed by the Veterans’ Review Board (the VRB). The applicant now seeks review of that decision by this Tribunal.

    SERVICE

  4. The veteran served in the Royal Australian Air Force (“the RAAF”) from 14 August 1943 until 11 February 1946.

    LEGISLATION

  5. Under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) the Commonwealth is liable to pay a pension to a dependant of a veteran whose death was “war-caused”.[1] The Act sets out the circumstances in which the death of a veteran shall be taken to be war-caused.[2]

    [1] Veterans’ Entitlements Act 1986 (Cth) s 13(1).

    [2] Ibid s 8.

  6. The service of the veteran is eligible war service under the Act.[3] As the veteran did not perform any operational service under the Act, s 120(4) requires that the Commission should decide this matter to its reasonable satisfaction.

    [3] Ibid s 7.

  7. Section 120B(3) of the Act provides that the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

    (a)the material before the Commission raises a connection between the injury, disease or death of the person disease and some particular service rendered by the person, and;

    (b)there is in force a…

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AGLC
Eileen Pye and Repatriation Commission [2015] AATA 201
Case
[2015] AATA 201
Decision Date

CaseChat Overview and Summary

Eileen Pye has brought an application before the Administrative Appeals Tribunal (AAT) for a review of a decision by the Veterans’ Review Board (VRB) to reject her claim for a war widow’s pension. The dispute hinges on whether the death of the veteran, Eileen Pye's husband, was "war-caused" under the Veterans’ Entitlements Act 1986 (Cth), thereby making her eligible for the pension. The veteran had served in the Royal Australian Air Force from 1943 to 1946 but did not engage in any operational service. The key legal issue before the Tribunal was whether the veteran's consumption of alcohol and the resulting malignant neoplasm of the colorectum, which contributed to his death, were connected to his military service. The Tribunal had to determine if the alcohol consumption and the disease met the criteria set out in the relevant Statements of Principles and whether they were war-caused.

The Tribunal examined the evidence and submissions to assess the connection between the veteran's service and the claimed conditions. The veteran's death was attributed to acute renal failure and metastatic colon cancer. The Tribunal noted that the veteran's alcohol consumption met the criteria for war-caused malignant neoplasm of the colorectum as per the relevant Statement of Principles. However, the critical issue was whether the alcohol consumption was war-caused. The Tribunal found that the veteran was a heavy drinker, a fact accepted by both parties, but the reason for this behaviour, such as the removal from a pilot’s course, did not establish a war-related cause. The Tribunal concluded that there was insufficient evidence to link the alcohol consumption to the veteran's service, thus the claim for a war widow's pension could not be substantiated.

The Tribunal set aside the VRB's decision and substituted it with its own decision that the applicant's claim for a war widow's pension should be rejected. The Tribunal's decision was based on the lack of evidence to establish that the veteran's alcohol consumption and the resulting malignant neoplasm of the colorectum were war-caused. The Tribunal emphasized the need for clear evidence connecting the claimed conditions to the veteran's service under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties accept that if the applicant succeeds in this application the date of effect of any decision to grant her widows pension should be 12 March 2012.PRIOR DECISIONS On 20 July 2011 the applicant lodged her claim for a war widow’s pension. On 12 September 2011 a delegate of the Repatriation Commission (“the respondent”) rejected her claim. On 5 September 2013 that decision was affirmed by the Veterans’ Review Board (the VRB). The applicant now seeks review of that decision by this Tribunal.SERVICE The veteran served in the Royal Australian Air Force (“the RAAF”) from 14 August 1943 until 11 February 1946. LEGISLATION Under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) the Commonwealth is liable to pay a pension to a dependant of a veteran whose death was “war-caused”.[1] The Act sets out the circumstances in which the death of a veteran shall be taken to be war-caused.[2][1] Veterans’ Entitlements Act 1986 (Cth) s 13(1).[2] Ibid s 8. The service of the veteran is eligible war service under the Act.[3] As the veteran did not perform any operational service under the Act, s 120(4) requires that the Commission should decide this matter to its reasonable satisfaction. [3] Ibid s 7. Section 120B(3) of the Act provides that the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:(a)the material before the Commission raises a connection between the injury, disease or death of the person disease and some particular service rendered by the person, and;(b)there is in force a Statement of Principles that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service. The applicant in her statement of facts and contentions dated 27 June 2014 relies upon the SoP concerning Malignant Neoplasm of the Colorectum No. 38 of 2013 and the SoP concerning Hypertension No. 64 of 2013, each of which is still in force.DEATH OF VETERAN I am required to determine the medical cause of the veteran’s death. While the expression “kind of death” is often used to refer to the medical cause or causes of death of a veteran,[4] the expression is not to be found in s 120B(3) of the Act. The death certificate by Dr Grimes, oncologist, records that the veteran died on 28 May 2011 when he was 85 years of age. The certified causes of death were (a) acute renal failure and (b) metastatic colon cancer. On 27 May 2011 the day prior to the death of the veteran Dr Grimes made the following notes on the final admission of the veteran: “85 [year old] advanced colon cancer, liver [secondaries]. Palliative care. Unable to manage at home. Admitted for symptom control.” [4] Repatriation Commission v Hancock [2003] FCA 711 [8]-[9]. There was no issue that one cause of death of the veteran was metastic colon cancer. There can, of course, be more than one cause of death of a person.[5] The applicant contends that another cause of death of the veteran is chronic kidney disease as this was causally relevant to the acute renal impairment which also caused the death of the veteran. There was a difference of opinion between the renal specialists who gave evidence about whether the chronic kidney disease of the veteran played a real role in the pathological changes leading to acute renal failure. [5] Ibid.

Ratio Decidendi

Legal Principle Established

During the examination-in-chief of Dr George the respondent asked whether the veteran had a constitutional condition. The report of Dr George that had been admitted into evidence did not advert to the veteran having such a condition and the applicant would not have had the opportunity to consult with her expert witness on this issue who, because of the interposition of witnesses, had already been excused. In the circumstances I ruled that the applicant would be at a disadvantage in cross-examining Dr George and that if the respondent wished to introduce such new evidence this would necessitate an adjournment which would involve the applicant in more expense. There was no submission by the applicant that the veteran had a constitutional condition that caused chronic kidney disease. Dr George mentioned that in 1943 the veteran had a blood pressure reading which might not have then been looked upon as abnormally high but would now be classified as hypertension. However Dr George quite properly mentioned that there are no details of how that reading was taken. Dr George mentioned that the veteran has readings from 1946 which are just within the normal range. Dr George remarked that there were two readings in 1965 which were above the normal range.CONSIDERATION The applicant contends that malignant cancer of the colon was war-caused and relies upon factor 6(c) of the relevant SoP which refers to drinking at least 500 kilograms of alcohol within any 25 year period, before the clinical onset of malignant neoplasm of the colorectum.[9] The evidence before the Tribunal was that the veteran satisfied this level of consumption by being a very heavy drinker. The evidence from the applicant and his daughters (Ms Gannon and Ms Kopp) as well as Mr Gannon confirms that the veteran was a very heavy drinker. In particular, Ms Kopp remarked that the veteran and his wife would usually have a bottle of wine with dinner and how it was the veteran’s habit to have a scotch or brandy after dinner. The respondent in the statement of facts, issues and contentions dated 5 September 2014 accepts that the veteran drank alcohol at levels that may well have met the requirement for the consumption of 500 kg of alcohol within any 25 year period before the clinical onset of malignant neoplasm of the colorectum.[10] In final submissions it was accepted that the level of alcohol consumption which is prescribed in factor 6(c) equates to about five and a half drinks per day. The respondent has quite properly conceded that the veteran met that level of consumption within any 25 year period before the clinical onset of malignant neoplasm of the colorectum; the clinical onset of the condition was accepted as being in 2009. [9] Statement of Principles concerning Malignant Neoplasm of the Colorectum No. 38 of 2013 cl 6(c).[10] At paragraph 5.2 What is squarely in issue is whether this consumption of alcohol is war-caused. The entry medical documents confirm that the veteran did not drink alcohol at the time of his enlistment. The applicant was then 18 years of age and would have then been below the legal drinking age. One reason which was pressed to explain the high level of alcohol consumption was the removal of the veteran from a pilot’s course. Dr Palazzo has examined the available records that concern the veteran’s pilot training. Dr Palazzo remarked there was no evidence that his transfer out of pilot training was as a result of poor behaviour or a disciplinary infraction.