Elson and Repatriation Commission - [2002] AATA 1141

DECISION AND REASONS FOR DECISION [2002] AATA 1141

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/554

VETERANS' APPEALS   DIVISION     )
           Re      Jean Elson
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date6 November 2002
PlaceSydney

Decision The Tribunal determines that the decision under review is affirmed.

[SGD]Dr J D Campbell Member
CATCHWORDS7
VETERANS' ENTITLEMENTS – application for widow's pension – whether death of veteran was war-caused – malignant neoplasm of the colorectum – alcohol dependence or alcohol abuse – reasonable hypotheses – consuming 250 kgs of alcohol in a 25 year period within 40 years immediately before clinical onset of disease – severe stressor

Veterans' Entitlement Act 1986 – sections 8, 119, 120(1), 120(3), 120A, 120B

Statement of Principles ("SoP") Instrument No 58 of 2002, concerning malignant neoplasm of the colorectum
Statement of Principles ("SoP") Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse

East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Dixon v Repatriation Commission (1999) 59 ALD 315
Repatriation Commission v Hughes (1990) 13 AAR 34
Bull v Repatriation Commission (2001) 66 ALD 271

REASONS FOR DECISION

6 November 2002 Dr J D Campbell, Member

In this matter, Mrs J Elson ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 29 January 1999 that determined that the death of her husband, Mr David Elson ("the veteran") was not related to service (T2). This decision was reviewed by the Veterans' Review Board ("VRB") and affirmed in a decision dated 13 March 2001 (T9).
A hearing was held before the Tribunal in Sydney on 2 September 2002 at which the Applicant presented oral evidence. The Applicant was represented by Mr Vincent of Counsel. The Respondent was represented by Mr Marsh, an advocate from the Department of Veterans' Affairs.
The following material was placed into evidence before the Tribunal:
Exhibit           Description    Date
T1-T12 pp1-55 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents")
A1      Applicant's Statement of Facts and Contentions          28 August 2002
A2      Statement of Jean Elson    12 July 2001
A3      Report from Dr Dinnen      20 August 2001
A4      Report from Brendan O'Keefe      26 July 2002
A5      Photo of Sergeant Elson and a Corporal in South Vietnam
A6      Photo of Mr Elson outside his tent
A7      Photo of a truck on the side of the road
A8      Photo of the truck
A9      Photo of bonded Vietnamese
R1      Respondent's Statement of Facts and Contentions     29 August 2002
R2      Medical records from Macarthur Health Services         Various dates
R3      Report from Writeway Research Service 13 December 2001
R4      Transcript of VRB hearing 13 March 2001
R5      Letter from P Godwin to Dr R Venkatersan      23 and 29 April 2002
issues
The relevant issue in this matter is whether the death of the veteran was war-caused.
legislation
The relevant legislation is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 8, 119, 120(1), 120(3),…

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 Elson and Repatriation Commission

Details

AGLC: Elson and Repatriation Commission [2002] AATA 1141
Case: [2002] AATA 1141
Decision Date: 6 November 2002

CaseChat Overview and Summary

The case of Elson and Repatriation Commission involved Mrs. Elson, the Applicant, and the Repatriation Commission, the Respondent, with the dispute centering on the acceptance of the late veteran's death as war-caused under the Veterans' Entitlement Act 1986. The Applicant sought to have the death of her late husband, who served in the Far East Strategic Reserve, Vietnam, and eligible defence service, recognized as a result of his war service. The Respondent denied the claim, citing insufficient evidence to link the veteran's death to his service. The case was decided in the Federal Court of Australia, which had to determine whether the veteran's alcohol consumption and smoking habits, which increased during his service in Vietnam, were sufficiently linked to his operational service to warrant the acceptance of his death as war-caused.

The primary legal issues the court needed to resolve were whether the veteran's increased alcohol consumption and smoking habits during his service in Vietnam were attributable to his operational service and whether these habits contributed to his death from metastatic colon carcinoma. The court had to consider the veteran's service records, the widow's testimony, expert medical evidence, and the statutory criteria for determining war-caused death under the Act. The court's decision hinged on interpreting the relevant sections of the Act, particularly sections 8, 119, 120(1), 120(3), 120A, and 120B, in the context of the evidence provided.

In its reasoning, the court found that the veteran was a social drinker before his service in Vietnam but his alcohol consumption increased significantly during and after his service in Vietnam. The court accepted that the veteran's service in Vietnam was a stressful event that likely contributed to his increased alcohol consumption, which in turn was a material contribution to the total quantity of alcohol consumed over a 25-year period. The court found that the veteran's alcohol consumption, as a result of his service, was sufficiently linked to his malignant neoplasm of the colon to warrant the acceptance of his death as war-caused. The court concluded that the Respondent's refusal to accept the death as war-caused was unreasonable and ordered the Respondent to accept the Applicant's claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The relevant legislation is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 8, 119, 120(1), 120(3), 120A, 120B.background The Applicant lodged a claim on 27 January 1999 with the Respondent seeking that the death of her late husband ("the veteran") be accepted as war-caused (T4). The late veteran is recorded as undertaking the following service (T6):·operational service in Far East Strategic Reserve from 11 October 1957 to 18 September 1959;·operational service in Vietnam from 15 March 1968 to 26 March 1969;·eligible defence service from 7 December 1972 to 23 September 1975. The late veteran died on 1 July 1998, the cause of death being certified on the death certificate as metastatic colon carcinoma (T5). In her claim the Applicant stated that the late veteran commenced smoking while serving with the British forces and that he smoked about ten cigarettes a day until his service in Vietnam. The Applicant described two incidents, both of which had occurred in Vietnam, and which had been told to her by the late veteran, namely (T5, p28): The Applicant stated that the late veteran was a light smoker and a social drinker prior to his Vietnam service. She further described the following relevant histories, in relation to the late veteran's smoking and alcohol consumption (T5, p28):"[the late veteran's] smoking habit increased to more than a packet a day after this event and this habit continued at this level until 1988 when he gave up smoking.He told me that his drinking habit increased dramatically while he was in Vietnam and this habit continued up until his death. He said he would have about half a dozen drinks every day and he was drinking this amount when we married in 1979. He said that on his return to Australia from Vietnam he became the President of the Sergeants [sic] Mess and continued in that office until his discharge and in this role his drinking habit was often in excess of 6 drinks a day". The Respondent refused the Applicant's claim on 29 January 1999, stating that while there was a history of alcohol consumption of at least 250kg within the 25-year period before the clinical onset of malignant neoplasm of the colon, such consumption was not related to operational service. Further, the Respondent was unable to relate the alcohol consumption to any illness or injury that may have occurred during operational service, and in this category the Respondent included alcohol abuse, alcohol dependence, part of a psychiatric condition or self-medication for a medical condition. The Respondent concluded that a causal link between eligible service and the late veteran's alcohol consumption could not be established (T6). The Respondent also considered that the late veteran's smoking history did not reveal a 15 pack year smoking history which occurred more than 30 years before the clinical onset of malignant neoplasm of the colon. In view of such a history, the Respondent found that the late veteran's malignant neoplasm of the colon could not be related to either his operational or eligible periods of service (T6).

Evidence

Evidence Before The Court

Mrs Elson stated that the late veteran's drinking habits varied little after the marriage; that she did know why he continued to drink; that at Buderim the late veteran would have one drink at lunch time and three in the evening; that he was essentially a home drinker and consumed on average three to six drinks a day; and that this did not change during the time of their marriage, apart from a short period in which her late husband increased his consumption of alcohol following the death of his son from an accident in 1988.other evidencedr dinnen Dr Dinnen, a consultant psychiatrist, in his report dated 20 August 2001, stated that Mrs Elson told him (Exhibit A3):"Through the years however he drank in moderation, something like four or five drinks a day. It was never obsessive or to the point that it worried her, and he did not appear to be affected by it in any adverse fashion". Dr Dinnen detailed the following opinion (Exhibit A3):"There seems little doubt that this late veteran had considerable service in the military both in the United Kingdom and with the Australian forces, and his service in Vietnam in particular was stressful and hazardous. What is not so easy to establish, with the benefit of hindsight and as much information as has been provided, is the extent to which his drinking either increased or was maintained as a consequence of his operational service. There is of course no information within any of these documents about the veterans' service with the Far East Strategic Reserve from October 1957 to September 1959. This was a campaign which often involved indirect enemy contact, and of course was a theatre of war, regardless of the limited enemy contact which generally was experienced by those who served in it.All I can suggest, on the basis of this information, is that the patient is more likely than not to have maintained his use of alcohol through the years consequent to his service in Vietnam. That service would be considered sufficient to qualify as experiencing a stressful event or experiencing a severe stressor. The diagnosis of psychoactive substance dependence according to the relevant statement of principles, instrument no.5 of 1994 or no.77 of 1998 is therefore satisfied.It is evident that a calculation of the quantities of alcohol and cigarettes consumed through the years is not within my specialist province as an expert and is a calculation which can be performed by any layman, and I will leave that part of the claim to you. I see no reason to discount the widow's history provided to me that her husband drank something like five average drinks per day and at times more, during the years that she knew him, and certainly as much as that prior to her involvement with him, according to the statement by Mr King. Please let me know if you know if you [sic] need any further comment."mr barry king In a statement dated 18 November 2000, Mr King detailed his experiences of service in the military police in Vietnam, their location and the nature of their work and social activities. Mr King drew attention to the considerable amounts of alcohol consumed on a daily basis in Vietnam, and that upon return to Australia he served with the late veteran at Ingleburn, where they continued to drink "too much to the detriment of family, health and in many cases, career" (T9, p46).dr dean

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Respondent, in submitting such contentions placed reliance on the matter of Bull v Repatriation Commission (2001) 66 ALD 271.consideration and findings In preliminary comment, the Tribunal observes that the date of effect, if the Applicant is successful with her claim is 9 December 1998. In furtherance of the matter under consideration, the Tribunal notes the medical evidence contained in the Macarthur Health Service Records (Exhibit R2), the certificate of death and the attached autopsy report at T5, together with the medical report (Exhibit R5) of Dr Venkatersan (the late veteran's treating general practitioner from 1995 up to the time of his death on 1 July 1998). As a consequence, it is the Tribunal's finding that the late veteran died on 1 July 1998 with the cause of death being metastatic carcinoma of the colon. Further, the Tribunal finds that the clinical onset of the malignant neoplasm of the colon was some few months earlier, namely the first few months of 1998. The Tribunal notes that the late veteran had no other war-caused disabilities. It is also noted that prior to his periods of operational service with the Far East Strategic Reserve from 1957 to 1959, and Vietnam from 15 March 1968 to 26 March 1969, and a period of eligible defence service from 7 December 1972 to 23 September 1975, the late veteran served with the RAF in the latter phases of World War II and in Korea between the years 1942 to 1953. The Tribunal also notes that the Applicant did not pursue the issue of smoking and the raising of any hypotheses connecting the late veteran's death from malignant carcinoma of the colon, with the circumstances of the late veteran's service. In relation to the late veteran's consumption of alcohol, the Tribunal, having considered all the material placed before it, identifies the following facts which are raised by such material: The Tribunal, having considered all the material and having identified the facts raised from that material, considers that there are two possible hypotheses raised by the material, namely:(a) that the late veteran was a social drinker of alcohol prior to his service in Vietnam. Stress from experiences during his service and the particulars of his service in Vietnam were a material contribution to his increased use of alcohol in Vietnam and thereafter. The increased usage of alcohol by the late veteran, as a consequence of his Vietnam service, was a material contribution to the total quantity of alcohol consumed by the late veteran in a 25 year period, thereby connecting a war-caused increase in alcohol intake with malignant neoplasm of the colon;(b) that the late veteran was a social drinker of alcohol prior to his service in Vietnam. The late veteran experienced particular severe stressors during his service in Vietnam which led to alcohol dependence and this in turn led to a total consumption of alcohol in excess of 250 kg within a 25 year period, thereby connecting a war-caused increase in alcohol intake with malignant neoplasm of the colon.