Freeman and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1650

Freeman and Repatriation Commission (Veterans' entitlements) [2020] AATA 1650 (9 June 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/6104
Re:Diane Freeman
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:9 June 2020
Place:Brisbane

The decision under review is affirmed.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veteran deceased – claim for war widow’s pension – cause of death subdural haemorrhage – relevant conditions of subdural haematoma and ischaemic heart disease – relevant Statement of Principles – whether the veteran’s smoking habit arose out of, or was attributable to, his defence service – smoking habit pre-dated defence service – decision under review affirmed
LEGISLATION
Statement of Principles concerning Subdural Haematoma No 34 of 2011 (Cth)
Statement of Principles concerning Subdural Haematoma No 101 of 2019 (Cth)
Statement of Principles concerning Ischaemic Heart Disease No 2 of 2016 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Budge v Repatriation Commission [2014] AATA 276
Kattenberg v Repatriation Commission (2002) 73 ALD 365; [2002] FCA 412
McDermott v Repatriation Commission [2011] AATA 714
Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711
Repatriation Commission v Hawkins (1993) 45 FCR 205; [1993] FCA 479
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635; [1981] HCA 57
Repatriation Commission v Tuite (1992) 37 FCR 571
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2003) 75 ALD 345; [2003] FCAFC 146
Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40
SECONDARY MATERIALS
Radcliffe, M 2017, Kampong Australia: The RAAF at Butterworth, NewSouth Publishing, Australia.
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
9 June 2020
BACKGROUND

Mrs Diane Freeman, the applicant in this matter, is the widow of the late Mr Ross Freeman (“the veteran”). The applicant has submitted a claim for war widow’s pension under the Veterans’ Entitlements Act 1986 (“the Act”), claiming that the veteran’s death was caused by his defence service with the Royal Australian Air Force (“RAAF”).
The veteran served in the RAAF from 26 August 1968 to 15 December 1988. The relevant period of defence service is from 7 December 1972 to 15 December 1988. The majority of the veteran’s service was spent as a RAAF police officer. He was also deployed to Malaysia from 4 December 1979 to 2 June 1982.
The veteran died on 23 April 2016 at 73 years of age. The causes of death listed on the death certificate were:[1]
·Primary brain injury;
·Acute on subacute subdural haemorrhage;
·Anticoagulation for mechanical aortic valve replacement; and
·Pancreatic adenocarcinoma.
[1] Exhibit A, T-Documents, T13.
The applicant lodged her claim for war widow’s pension under the Act on

23 August 2016.[2] The claim was refused by the respondent on 27 September 2016, as it was determined that the veteran’s death was not defence-caused.[3] On 18 September 2017 the Veterans’ Review Board (“VRB”) affirmed the original decision.[4] On 15 October 2017 the applicant…

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: [2020] AATA 1650
Decision Date: 9 June 2020

CaseChat Overview and Summary

This matter concerned an application for a war widow's pension by the applicant, the widow of a deceased veteran. The dispute centred on whether the veteran's death, caused by a subdural haemorrhage, was attributable to his defence service, specifically in relation to his ischaemic heart disease and smoking habit. The case was heard by Deputy President McDermott of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine whether the veteran's smoking habit arose out of, or was attributable to, his defence service, as defined by section 196B(14) of the relevant Act. This determination was crucial for establishing whether the veteran's death was a "defence-caused death" for the purposes of the war widow's pension claim. The Tribunal also considered the cause of death, noting the death certificate and hospital records indicated a subdural haemorrhage, and that chronic obstructive pulmonary disease and ischaemic heart disease were also identified as causes.

The Tribunal considered evidence that the veteran was a heavy smoker, with a smoking history that predated his defence service. While the applicant suggested the stress of his service as a RAAF policeman contributed to his smoking, the Tribunal found that the veteran's smoking habit did not arise out of, or was not attributable to, his defence service. The Tribunal acknowledged the veteran's service but concluded that, under the legislative scheme, the application could not be granted.

Consequently, the Tribunal affirmed the decision under review, meaning the application for the war widow's pension was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 196B(14) of the Act is also relevant. It is set out as follows:(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:(a) it resulted from an occurrence that happened while the person was rendering that service; or (b) it arose out of, or was attributable to, that service; or(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:(i) to a place for the purpose of performing duty; or (ii) away from a place of duty upon having ceased to perform duty; or(d) it was contributed to in a material degree by, or was aggravated by, that service; or(e) in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:(i) but for the rendering of that service by the person; or(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or(f) in the case of a factor causing, or contributing to, a disease—it would not have occurred:(i) but for the rendering of that service by the person; or(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or(g) in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:(i) but for the rendering of that service by the person; or(ii) but for changes in the person’s environment consequent upon his or her having rendered that service.EVIDENCEThe applicant’s evidence The applicant provided a statement dated 27 February 2018.[7] She stated that she met the veteran in around 1986, but they only commenced their relationship in 1988 after he was discharged from the RAAF. They were married in 1989. She noted that the veteran had three children from his previous marriage. [7] Exhibit D. The applicant stated that the veteran was smoking when they met but he was trying to give up. She stated that about a month after they were married he stopped smoking completely. She stated that the veteran told her that he had tried to give up smoking while he was in the RAAF on a number of occasions, as he knew it wasn’t good for his health and he was experiencing health problems, especially with his heart. He had also stopped successfully before but then relapsed. The applicant stated that the veteran joined the RAAF as a medical orderly in 1968, then transferred to the RAAF Police in 1971 and remained there until his discharge in 1988. The applicant indicated that it was her understanding that it was the stress of his work as a RAAF policeman that caused the veteran to keep smoking and smoke heavily. She stated that aspects of the veteran’s job which were stressful included providing security for VIPs, and attending fatal traffic accidents; she said these “clearly deeply distressed him”, and he mentioned viewing body parts on at least one occasion. She stated that it was her impression that there were a number of these incidents. The veteran also told the applicant that he undertook drug investigations within the RAAF.

Decision

Reasons for decision

I acknowledge the service the veteran has rendered to his country. However, under the scheme of the Act I am unable to grant this application.DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The respondent ultimately submitted that the veteran’s smoking habit did not arise out of, nor was it attributable to, his relevant defence service. Therefore the veteran’s death was not defence-caused.CONSIDERATION I must be satisfied that the applicant was a ‘dependent’ of the veteran. I find that the applicant was a dependent as she was his widow.[54] [54] See definition of ‘partner’ in s 11 of the Act. I am required to make a finding as to the kind of death suffered by the veteran having regard to s 120A of the Act. This was explained by Selway J in Repatriation Commission v Hancock[55].[55] [2003] FCA 711 at [9]. In a case such as this it is necessary to have regard to evidence of the death of the veteran. An important document is the death certificate. At the outset of the hearing I voiced my concern because the death certificate that was in the Tribunal documents (T13) could not be read. Fortunately, a more legible copy of the death certificate was provided to the Tribunal. The parties should ensure that a legible copy of the death certificate is provided to the Tribunal in a case such as this. It is not in dispute between the parties that the cause of death of the veteran was a subacute subdural haemorrhage. The death certificate records that one of the causes of death was a subacute subdural haemorrhage. The hospital discharge summary of 24 April 2016 records that there was a left-sided acute subdural haemorrhage when the veteran passed away.[56] In reliance on the death certificate and the hospital record, I find that the death of the veteran was caused by chronic obstructive pulmonary disease and ischaemic heart disease and this was the kind of death suffered by the veteran. While there may be more than one medical cause for the death of a veteran, the parties have quite rightly in my view not put forward any other cause of death for the purposes of determining this application.[56] Exhibit A, T-Documents, T11, p. 56.Ischaemic heart disease – smoking There is evidence before the Tribunal that the veteran was a heavy smoker. In evidence there is a smoking questionnaire which indicates that the applicant was a regular smoker since 1968, having stopped smoking in October 1989.[57] The applicant stated that the veteran smoked 40 cigarettes per day. Dr Coles in 1983 recommended to the veteran his previous advice to the veteran to cease smoking.[58] In 1987, Dr Rowe had recorded that the smoking habit of the veteran had changed from 60 cigarettes per day to 18 cigarettes per day.[59] While during 1988 there is a record of the applicant having given up smoking,[60] at the time of his discharge in 1988 it was recorded that the applicant was a heavy smoker.[57] Exhibit A, T-Documents, T15.[58] Exhibit A, T-Documents, T31, p. 173.[59] Exhibit A, T-Documents, T31, p. 147.[60] Exhibit A, T-Documents, T31, p. 150. Having regard to the evidence before the Tribunal, the respondent has properly agreed that the veteran had smoked at least 20 pack-years of cigarettes before the clinical onset of ischaemic heart disease which satisfies factor 6(c) of SoP No 2 of 2016. I have to determine whether I can be reasonably satisfied that the smoking habit of the veteran “arose out of, or was attributable to” the defence service of the veteran.[61][61] See ss 70(5)(a) and 196B(14) of the Act.