Ferres and Repatriation Commission

Case [2002] AATA 410

DECISION AND REASONS FOR DECISION [2002] AATA 410

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/225

VETERANS APPEALS  DIVISION        )          
           Re      SHIRLEY HYEM FERRES           
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr M Sassella, Senior Member Dr J D Campbell, Member    

Date24 May 2002

PlaceSydney

Decision      The tribunal sets aside the decision under review and decides that the death of Arthur Elgar Ferres was caused by a cerebrovascular accident that was war-caused.  It decides also that the applicant qualifies for a War Widow's Pension with effect from 28 June 1998.  The matter is remitted to the respondent for it to assess the applicable rate.          
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - War Widow Pension – veteran died of cerebrovascular accident – whether veteran consumed a weekly average of 250 grams of alcohol in alcoholic drinks for a year before death – whether alcohol consumption related to operational service – whether reasonable hypothesis raised.

Veterans' Entitlements Act 1986 ss 6A(1) Item 1(a), 7(1)(a), 8(1)(a), 11(1) ("dependant"), 13(1)(a), (c), 14(1), (3), (4), 20(1), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.
Statement of Principles concerning cerebrovascular accident, Instrument No 52/99.

Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193
Harris v Repatriation Commission (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445
Bull v Repatriation Commission [2001] FCA 1832
Re Bull and Repatriation Commission [2001] AATA 59
Bull v Repatriation Commission [2001] FCA 823

REASONS FOR DECISION

24 May 2002           Mr M Sassella, Senior Member Dr J D Campbell, Member                

HISTORY OF APPLICATION

  1. On 20 September 1998 Shirley Hyem Ferres ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") a claim for a War Widow's Pension.  She stated in the claim that, to the best of her knowledge, her husband, Arthur Elgar Ferres ("the veteran") neither drank nor smoked until his Royal Australian Air Force ("RAAF") service and, therefore, that his death was related to war service, in particular that cerebrovascular disease was due to smoking and drinking (T12). 

  2. On 2 October 1998 a delegate of the Repatriation Commission ("the respondent") decided that the death of the veteran was not related to service. It was found that the veteran's condition did not meet the requirements in the Statement of Principles ("SoP") in relation to cerebrovascular disease issued by the Repatriation Medical Authority under s 196B(2) of the Veterans' Entitlements Act 1986 ("the Act") (T13).

  3. On 30 November 1998 the applicant sought from DVA a review of the respondent's decision in accordance with s 31 of the Act (T14). On 15 February 1999 a delegate of the respondent decided (T16) that there were no grounds for intervention under s 31 of the Act. Three reasons were cited:

  • There was no evidence that the veteran met any factor in the SoP concerning cerebrovascular accident.

  • The veteran ceased smoking in about 1961, that is not within 15 years of the onset of…

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Ferres and Repatriation Commission [2002] AATA 410
Case
[2002] AATA 410
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CaseChat Overview and Summary

The case of Ferres and Repatriation Commission involved the widow of a deceased veteran, who sought to establish a War Widow Pension under the Veterans' Entitlements Act 1986. The widow argued that her late husband's alcohol consumption, which she claimed was initiated due to the stresses of his war service, contributed to his cerebrovascular accident and subsequent death. The Repatriation Commission had previously denied her claim, and she sought review of this decision. The central legal issue was whether the veteran's alcohol consumption, which met the criteria of the Statement of Principles on cerebrovascular accident, was related to his operational service in the RAAF during World War II. Specifically, the court needed to determine if the veteran's consumption of a weekly average of 250 grams of alcohol in alcoholic drinks for a year before his death was linked to his service.

The court examined the evidence and found that while the veteran did consume alcohol heavily, particularly in later years, there was no medical evidence indicating that he suffered from a psychiatric condition related to alcohol consumption at the time of the onset of his hypertension, which was established to be 1974. The court noted that the veteran's heavy drinking was confirmed only in 1995, but there was no evidence regarding his drinking habits at the time of his death in July 1997. The court also considered the veteran's obesity and hypothyroidism, but concluded that these conditions could not be directly linked to his service. Ultimately, the court was not satisfied that the veteran's drinking habit was war-caused, and thus upheld the Repatriation Commission's decision to deny the claim for a War Widow Pension.

The outcome of the case was that the applicant's appeal was dismissed, and the decision of the Repatriation Commission was affirmed. The court's reasoning was based on the lack of direct evidence linking the veteran's alcohol consumption to his war service, and the absence of a diagnosed psychiatric condition related to alcohol at the relevant time. Consequently, the court found that the reasonable hypothesis connecting the veteran's alcohol consumption and his operational service was not substantiated.

Orders

Orders of the court

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Background

Background to the litigation

On 14 February 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB decision (T1).BACKGROUND The veteran was born on 13 January 1912 in Swanbourne, Western Australia, and died on 19 July 1997 in Sydney. The cause of death was certified as cerebrovascular accident (8 days), cerebrovascular disease (8 years) and hypothyroidism (7 years) (T12/37). The veteran was married twice, first in 1942 and then to the applicant in this matter, in 1951 (T12/37, 42). They had two children, aged 39 and 33 as at 1997. The veteran was educated to university level, where he studied medicine for three years before leaving. In 1933 the veteran joined the Commonwealth Oil Refineries as a draftsman (T3/13). After discharge from the RAAF he became an assistant engineer with British Petroleum. He served in the RAAF from 17 August 1940 to 3 December 1945 (T3/13). This period of service constituted eligible war service. He saw service in New Guinea and so the whole of his service was operational service (T2). On 8 February 1965 the veteran made submissions to the respondent seeking treatment, but not a pension, in respect of two conditions, lumbar spondylosis and chronic back strain. He claimed that the injuries resulted from "lifting heavy weights and loads during construction of steel matting airstrips in New Guinea." He also noted that he believed that his being "a lot overweight" was a direct result of war service in New Guinea (T6). When the veteran died he was not in receipt of a Disability Pension under the Act (ex TD1/(2)).RELEVANT LEGISLATION The relevant provisions of the Veterans' Entitlements Act 1986 are: ss 6A(1) Item 1(a), 7(1)(a), 8(1)(a), 11(1) ("dependant"), 13(1)(a), (c), 14(1), (3), (4), 20(1), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.VETERANS' ENTITLEMENTS ACT 1986Operational service - world wars6A. (1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.Operational service Item 1 Person A member of the Defence ForceNature of service (a) continuous full-time service outside Australia…Eligible war service 7.(1) Subject to subsection (2), for the purposes of this Act: (a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and …War-caused death8.(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;…Dependants11.(1) In this Act, unless the contrary intention appears:dependant, in relation to a veteran (including a veteran who has died), means:(a) the partner; or(b) a non-illness separated spouse; or(c) a widow or widower (other than a widow or a widower who marries or re-marries); or(ca) a reinstated pensioner; or(d) a child;of the veteran.Note 1: A veteran may have more than one dependant of the kind referred to in paragraphs (a) to (d) at the same time.Note 2: For the meaning of reinstated pensioner see section 11AA.Note 3: Subsection (4) affects the meaning of widow in paragraph (c).…Eligibility for pension 13.(1) Where:(a)the death of a veteran was war-caused; or…the Commonwealth is, subject to this Act, liable to pay:(b)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or…Claim for pension 14.(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3). …(3) A claim for a pension: (a) shall be in writing and in accordance with a form approved by the Commission; (b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and (c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b). (4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim. …Date of operation of grant of claim for pension 20.(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.…Standard of proof 120.(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 injury was a war-caused injury, that the disease was 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 of 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 re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. …(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 veteran 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. …Reasonableness of hypothesis to be assessed by reference to Statement of Principles 120A.(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. Note 1: Subsections 120(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(1A). …(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.…Functions of Authority 196B.(1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or …(d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Note 1: For sound medical-scientific evidence see subsection 5AB(2). Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A). Note 3: For factor related to service see subsection (14). …Disallowable instrument 196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901

Evidence

Evidence Before The Court

The SoP relevant to the determination of this matter is, prima facie, SoP 52/99 as amended by 30/2002 concerning cerebrovascular accident. If the hypothesis fails in relation to the current SoP, then the SoP relating to the same medical condition in force at the time of the primary decision (2 October 1998) can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).survey of documentary evidence On 2 August 1940, prior to enlistment, the veteran was examined by a medical officer. The veteran had no serious medical conditions prior to enlistment (T3/7). On 20 November 1945 the veteran was medically examined prior to discharge (T3/11). On examination he stated that he had no disabilities sustained while a member of the RAAF. On 8 June 1964 the veteran was examined by a Repatriation Commission medical officer (T4). The veteran was described as "obese", his blood pressure was 150/100. There was a vague history of two episodes of diarrhoea "precipitated by drinking". In a further medical history sheet dated 2 December 1964 (T5) the veteran was described as a non-smoker and a very moderate alcohol drinker. On 17 November 1997 on a smoking questionnaire (T12/40), the applicant stated that she first met the veteran in 1948, that he took up smoking prior to 1948 during service and that the reason for his smoking was peer pressure. She stated that she was unaware of his tobacco consumption during service. On 25 May 1998 the Applicant completed a Widow Report – Alcohol Questionnaire (T12/38). She stated that she understood that the veteran started drinking when he joined the RAAF because of peer pressure and ready availability of alcohol. She stated that he drank every day in the service, about 2-3 glasses of beer a day, and that even prior to his death he was still drinking about half a bottle of wine every day. On 15 December 1989 the veteran was examined by Dr R Joffe (ex R2). In his letter to a Dr C Fraser, Dr Joffe stated that the veteran had a partial right sixth nerve lesion and that his condition resulted from a vascular disturbance. He noted also the veteran "occasionally drinks". On 23 September 1991 Dr M Lunzer, a gastroenterologist, described the veteran's health problems, apart from his dementia, as hypertension, urinary tract infection, treated hypothyroidism and faecal incontinence, which he related to the veteran's dementia (ex R2/51). On 18 February 1999 Dr F Dennison completed a medical report (T17) in relation to the veteran. She stated that the veteran had suffered from hypertension since 1974 and was on hypertensive medication. She stated also that he was known "to have a heavy alcohol consumption since World War II" and that "he continued to be a heavy drinker up until development of dementia in 1989. He was eventually placed in a nursing home in December 1995". She further stated that his cardiovascular disease would have been aggravated by a combination of his obesity, hypertension and heavy ethanol intake.

Decision

Reasons for decision

On 7 December 1998 the applicant lodged with DVA an application for the VRB to review the decision of the respondent (T18/54). reviewable decision On 23 September 1999 the VRB affirmed the decision of the Repatriation Commission (T18). The applicant's case was based on the veteran's history of alcohol consumption and its contribution to his cerebrovascular disease or cerebrovascular accident. The applicant's case was that the stresses of the veteran's war service in New Guinea led to a war-caused drinking habit which continued up until he died. The veteran also suffered from hypertension. Factors 5(a) and (b) of the SoP on cerebrovascular accident were raised, ie that the veteran suffered from hypertension before the clinical onset of the cerebrovascular accident, and that he regularly consumed an average of 250 grams a week of alcohol (contained within alcoholic drink) for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident. The VRB considered the veteran's service history. There was no evidence of any increase in his alcohol consumption during his war service. There was no evidence as regards whether any increase was permanent. Medical records in 1964 and 1967 suggested he was a moderate drinker (two or three glasses of beer a day). He was drinking heavily in 1995, as his doctor confirmed. However, the doctor said nothing about his drinking at the time of his death in July 1997. The VRB allowed that the requirement for consumption of alcohol in the required period was met, however it was not satisfied that the drinking habit was war-caused. The VRB found against the applicant as regards the veteran's hypertension. "That the veteran was a heavier drinker in later years is not doubted, however there was no medical evidence before the Board that he … suffered from a diagnosed psychiatric condition of psychoactive substance abuse or dependence, at the time of the onset of his hypertension which was established to be 1974" (T18/62). The VRB looked also at the veteran's obesity as a causal factor for hypertension, as permitted by the SoP on hypertension. That SoP recognised war-caused hypothyroidism as a causal factor in hypertension. However, the veteran's obesity preceded in time his hypothyroidism so the latter could not have caused the former condition. On 23 November 1999 the VRB sent written notification of its decision to the applicant (T19). On 14 February 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB decision (T1).BACKGROUND The veteran was born on 13 January 1912 in Swanbourne, Western Australia, and died on 19 July 1997 in Sydney. The cause of death was certified as cerebrovascular accident (8 days), cerebrovascular disease (8 years) and hypothyroidism (7 years) (T12/37). The veteran was married twice, first in 1942 and then to the applicant in this matter, in 1951 (T12/37, 42). They had two children, aged 39 and 33 as at 1997. The veteran was educated to university level, where he studied medicine for three years before leaving.

Ratio Decidendi

Legal Principle Established

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