Forrester and Repatriation Commission

Case [2012] AATA 846

[2012] AATA 846

Division Veterans' Appeals Division

File Number

2011/3468

Re

CONSTANCE FORRESTER

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Dr K J Breen, Member
Date 30 November 2012
Place Melbourne

The decision under review, being the decision of the Repatriation Commission made 20 December 2010 rejecting Mrs Forrester’s claim for a pension in accordance with the Veterans Entitlement Act 1986 (Cth), is affirmed.

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

Deputy President J W Constance

CATCHWORDS

VETERANS' AND MILITARY COMPENSATION – whether death was war-caused – whether material raises an hypothesis connecting the death with the circumstances of the operational service – material must point to the hypothesis – hypertension – aortic aneurysm – decision under review affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) ss 9, 120 and 120A

CASES

Borrett v Repatriation Commission [2000] FCA 1829

Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 565
Kaluza v Repatriation Commission [2011] FCAFC 97
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Owens [1996] HCATrans 290

Tunks v Repatriation Commission (2008) 102 ALD 274

SECONDARY MATERIALS

Statement of Principles No. 9 of 2012 (aortic aneurysm)

Statement of Principles No. 35 of 2003 as amended by 3/2004 and 11/2008

REASONS FOR DECISION

Deputy President J W Constance
Dr K J Breen, Member

30 November 2012

INTRODUCTION

  1. Mrs Forrester is the widow of the late Mr Forrester who was a member of the Australian Army and who served in Vietnam.

  2. Mrs Forrester has applied for a pension under the Veterans’ Entitlement Act 1986 (Cth).  Her application has been refused by the Commission and Mrs Forrester has applied to this Tribunal for a review of that decision.

  3. For the reasons which follow the decision under review will be affirmed.

    MATERIAL BEFORE THE TRIBUNAL

    Mr Forrester’s service records

  4. Mr Forrester served as a member of the Australian Army from 8 June 1959 until 14 August 1976.  He served in Vietnam from 3 September 1970 to 22 July 1971.

    Mrs Forrester’s evidence

  5. Mr and Mrs Forrester were married in England in 1951.  From the time they first met Mr Forrester was an introverted personality who tended not to maintain friendships. 

  6. At the time of the marriage Mr Forrester was a member of the British Army.  Mrs Forrester understands that prior to the marriage Mr Forrester served in India and that this posting was shortened as he suffered some form of nervous condition.  For a period after they were married Mr Forrester was posted to West Africa.  Again Mr Forrester suffered from a nervous condition and was repatriated.  He was hospitalized for two to three weeks for treatment. 

  7. In 1957 Mr Forrester retired from the British Army and the couple migrated to Australia.

  8. During his first seven years in the Australian Army (1959-1966), Mr Forrester’s consumption of…

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Details
AGLC
Forrester and Repatriation Commission [2012] AATA 846
Case
[2012] AATA 846
Decision Date

CaseChat Overview and Summary

The case involves a claim by Mrs. Forrester for a pension under the Veterans Entitlements Act 1986 (Cth) in respect of her late husband, Mr. Forrester, who died from an aortic aneurysm. The Repatriation Commission rejected the claim, finding that Mr. Forrester’s death was not war-caused. Mrs. Forrester appealed to the Administrative Appeals Tribunal (AAT). The legal issues before the AAT were whether the material presented established a reasonable hypothesis connecting Mr. Forrester’s death with his operational service, and if the Commission was correct in its decision.

The AAT examined whether the hypothesis that Mr. Forrester's heavy drinking during and after his service in Vietnam, which led to hypertension and subsequently to the aortic aneurysm, was supported by the evidence. The Tribunal noted that while Mr. Forrester's drinking habits changed after his service, there was no material evidence linking the change directly to the specific stressful events he encountered during his service. Although it was acknowledged that Mr. Forrester experienced stress and drank heavily, the evidence did not support the hypothesis that the stress from his service directly caused him to drink heavily to the extent that it led to hypertension and his death. Therefore, the Tribunal concluded that the material did not point to a hypothesis connecting his death with his service.

Based on this reasoning, the AAT affirmed the Commission's decision, rejecting Mrs. Forrester's claim for a pension. The Tribunal found that the material did not establish a reasonable hypothesis connecting Mr. Forrester's death to his operational service. Consequently, the decision of the Repatriation Commission was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In October 1984 Mr Forrester is recorded as having informed a Department of Veterans’ Affairs officer that he drank “6 small cans [of beer] per week at most”.[48]LEGISLATIVE BACKGROUND[48] Exhibit A29.War-caused injury Section 9 of the Act sets out the circumstances in which an injury is taken to be “war‑caused”. The relevant parts of that section are:9 War‑caused injuries or diseases(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 of, or was attributable to, any eligible war service rendered by the veteran.Standard of proof Section 120 relevantly provides:120 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 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.…(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.Reasonable hypothesis and a Statement of Principles Subsection 120A(3) provides: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.APPLYING THE LAW

Evidence

Evidence Before The Court

Mr Forrester served as a member of the Australian Army from 8 June 1959 until 14 August 1976. He served in Vietnam from 3 September 1970 to 22 July 1971.Mrs Forrester’s evidence Mr and Mrs Forrester were married in England in 1951. From the time they first met Mr Forrester was an introverted personality who tended not to maintain friendships. At the time of the marriage Mr Forrester was a member of the British Army. Mrs Forrester understands that prior to the marriage Mr Forrester served in India and that this posting was shortened as he suffered some form of nervous condition. For a period after they were married Mr Forrester was posted to West Africa. Again Mr Forrester suffered from a nervous condition and was repatriated. He was hospitalized for two to three weeks for treatment. In 1957 Mr Forrester retired from the British Army and the couple migrated to Australia. During his first seven years in the Australian Army (1959-1966), Mr Forrester’s consumption of alcohol was “infrequent and light”.[1] The pattern of his drinking changed in 1966 when he was promoted to the rank of Major. He engaged in more social drinking, including in the mess after work, at dining-in nights, at social dinners and at a local hotel on Saturday afternoons; he usually drank approximately ten stubbies per week. He did not drink excessively and Mrs Forrester cannot recall that he was ever drunk or that his mood was affected by alcohol. She does recall that he always drank full-strength beer.[1] Exhibit A1, p.1 Prior to his tour of duty in Vietnam Mr Forrester suffered a lot of anxiety, and he would become angry quickly over incidents which Mrs Forrester described as “odd things”.[2] [2] Transcript 30.7.12 p.12. Mrs Forrester described Mr Forrester’s drinking habits upon his return from Vietnam in July 1971 as follows:Duncan was drinking virtually every day by his return to Australia from Vietnam. He tended to drink at home during the week and on those occasions would consume on average six small cans (375mL) of beer. I recall that his consumption was at the rate of approximately six cans of beer on average (because I would clear the cans in the morning and place them in the rubbish). On weekends he would also consume at the hotel on Saturdays for approximately one hour in addition to drinking six cans on Saturday and Sunday at home. In short, I regarded Duncan as a heavy drinker of alcohol on his return from Vietnam and I disliked this. He became verbally aggressive when he drank and his drinking habits were a cause of friction between us. We had never had an argument about his alcohol consumption before he served in Vietnam because it had not been an issue.[3]Mr Forrester’s drinking pattern did not change until 1996 when he began taking medication for a heart condition. He then stopped drinking alcohol on medical advice.[3] Exhibit A2 p.2 When Mr Forrester returned from Vietnam it appeared to Mrs Forrester that he had gained considerable weight and was overweight. He had not been overweight when he left for Vietnam.

Decision

Reasons for decision

COL J COL J
Had it been necessary we would have found that Statement of Principles No. 9 of 2012 (aortic aneurysm) and Statement of Principles No. 35 of 2003 as amended by 3/2004 and 11/2008 are in force and are relevant. We would have determined that the hypothesis put forward is consistent with the templates in these Statements. We would not have been satisfied beyond a reasonable doubt that Mr Forrester’s death was not war-caused.CONCLUSION The decision under review, being the decision of the Repatriation Commission made 20 December 2010 rejecting Mrs Forrester’s claim for a pension in accordance with the Veterans Entitlement Act 1986 (Cth), will be affirmed.

Ratio Decidendi

Legal Principle Established

Established by: COL J, COL J

The parties agree that death was a result of a ruptured abdominal aortic aneurysm. This is the cause of death shown on the death certificate.[61]Issue 3: Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?[61] Exhibit A3. It is put on behalf of Mrs Forrester that the material before us points to the following hypothesis:a.Forrester commenced drinking heavily during his operational service in Vietnam, partly or wholly as a result of various stressors he encountered during his service in Vietnam, including:i. discord between him and his superior, Col. Hooten (Hooten);ii. being ordered to inspect brothels by his superior, which he refused to do;iii. having the task of sending home the effects of the deceased, and writing letters to their parents;iv. being involved in a Court Martial for a soldier he felt some sympathy for; andv. having been shot at by the soldier the subject of the court martial.b.Forrester continued drinking heavily, approximately 6 cans of heavy beer almost every night, and no less than 6 cans of heavy beer during the weekend, when he returned from his ‘operational service’.c.This drinking continued up to the onset of hypertension, which occurred no earlier than 1973 and no later than 1993.d.Forrester’s hypertension caused his aortic aneurysm.e.Forrester died from aortic aneurysm. The various authorities to which we have referred make it clear that the hypothesis under consideration must be more than one which is left open on the material before us. It must be a hypothesis which is pointed to, or supported by, the material. This requirement has also been expressed as requiring the hypothesis to be a reasonable one. The determination of whether the hypothesis is pointed to or supported by the material or is reasonable is not to be confused with the reasoning required at the third step of the Deledio process. That step requires the determination of whether the hypothesis fits the “template” to be found in any relevant Statement(s) of Principles. If the hypothesis does not fit the template it will be deemed not to be reasonable. Having considered all of the material before us we determine that it does not point to a hypothesis connecting Mr Forrester’s death from aortic aneurysm to his operational service. It was argued on behalf of Mrs Forrester that the particular circumstances of Mr Forrester’s operational service previously referred to were so stressful as to cause Mr Forrester to commence drinking heavily. This increased consumption of alcohol is said to have at least contributed to his hypertension and subsequent aortic aneurysm. The material before us does not “point to” or “support” the hypothesis that Mr Forrester increased his consumption of alcohol on an ongoing basis as a result of all or any of the events said to have caused him particular stress. The evidence of Mrs Forrester, Ms Swan and Mr Swan indicates that there was friction between Mr Forrester and his superior officer and that he found some of the tasks he was required to undertake as part of his duties to be distressing. This material also indicates that he was angry as a result of events which occurred during his operational service, particularly the incident involving the Court Martial. The material does not point to any connection between the soldier firing his weapon in the vicinity of Mr Forrester and Mr Forrester’s consumption of alcohol. There is no material which points to any change in Mr Forrester’s drinking habits as a result of all or any of these events.