Gale and Repatriation Commission
[2000] AATA 720
•18 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 720
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T1999/104
VETERANS' APPEALS DIVISION )
Re NELL CONSTANCE GALE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms A F Cunningham (Part-time Member)
Date18 August 2000
PlaceHobart
Decision The decision under review is affirmed.
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Part-Time Member
CATCHWORDS
Veterans' Affairs – claim for widow's pension – war-caused death – standard of proof – no relevant Statement of Principle.
REASONS FOR DECISION
18 August 2000 Ms A F Cunningham (Part-time Member)
The applicant has the review of a decision of the Repatriation Commission dated 3 December 1998 which was affirmed by a decision of the Veterans' Review Board dated 28 May 1999 rejecting the applicant's claim for a widow's pension in respect of the death of her late husband, Francis Alfred Gale, on the basis that his death was not war-caused.
The applicant was represented by Mr. R. Webster, and gave oral evidence at the hearing. The respondent was represented by Mr. M. Castle and called Dr. Brigden who gave oral evidence to the Tribunal by way of telephone link.
The Tribunal had before it the 'T' documents which were tendered pursuant to the provisions of s.37 of the Administrative Appeals Tribunal Act 1975, as well as additional medical reports from Professor R. M. Lowenthal and Dr. T. D. Barnes.
It was agreed that the applicant's late husband had rendered operational service within the meaning of the relevant legislation being s.6A of the Veterans' Entitlements Act 1986 ("the Act") between 5 June 1941 and 8 January 1946. The issue for this Tribunal to determine is whether the applicant's late husband's death was war-caused. Section 120 of the Act prescribes that the relevant standard of proof is that the Tribunal must so find "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination".
Subsection (3) of s.120 states that the Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death was war-caused or defence-caused if after considering the whole of the material before it, it is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the service.
As the claim for pension was made after 1 June 1994, the provisions of s.120A apply. It was submitted on behalf of the respondent that no relevant Statement of Principles has been issued for the applicant's deceased husband's medical condition and thus the relevant standard of proof is that of a reasonable hypothesis. As the claim was lodged after 1 June 1994, the provisions of s.120A(3) states that a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service is reasonable only if there is in force a Statement of Principle determined under the relevant subsection.
The evidence before the Tribunal as to the cause of the applicant's deceased husband's death was contained at T8 in the Medical Certificate of Cause of Death, which stated the cause of death to be (a) respiratory arrest and (b) metastatic carcinoma – unknown origin.
The hypothesis contended on behalf of the applicant is that the deceased's diet on service did not contain fresh fruit and vegetables which accordingly led to bowel cancer which in turn led to metastatic carcinoma which was a cause of death.
Evidence was given by the applicant that she married her husband on 10 January 1945. She gave evidence s to what her deceased husband had told her about service life and the fact that he had consumed a great deal of bully beef and "dog biscuits", as he used to call them. She informed the Tribunal that her deceased husband had never mentioned being provided with fresh fruit or vegetables, but had said that the food was "pretty rough" and talked mostly about the dog biscuits and bully beef.
Mr. Castle called evidence from Dr. Brigden, a departmental medical adviser in compensation with the Department of Veterans' Affairs. Dr. Brigden confirmed that the relevant medical reports in relation to the deceased cause of death referred to cancer of the bowel. His evidence was that the term "bowel" covers the area from the stomach to the anus. The term bowel cancer in medical terms implies "a cancer of the colon and rectum". Mr. Webster on behalf of the applicant conceded before the Tribunal in his opening address that if the Tribunal accepted the evidence of Dr. Brigden that the medical term bowel implies the rectum and colon then his client's claim would have to fail, as there is no related Statement of Principles.
At the conclusion of Dr. Brigden's evidence, Mr. Webster sought an adjournment before seeking to cross-examine Dr. Brigden and, following which he informed the Tribunal that he did not seek to cross-examine.
The only Statement of Principle provided to the Tribunal referred to Malignant Neoplasm of the Rectum, Malignant Neoplasm of the Colon, and Malignant Neoplasm of the Small Intestine.
There being no other evidence before the Tribunal, it accepts the evidence of Dr. Brigden that the term "bowel" comprises the rectum and colon and agrees with counsel's submissions that there being no related Statement of Principles in accordance with the requirements of s.120A of the Act, the applicant's claim cannot succeed.
The decision under review is accordingly affirmed and the appeal dismissed.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 29 June 2000
Date of Decision 18 August 2000
Solicitor for the Applicant Mr R Webster
Solicitor for the Respondent Mr M Castle (Department of Veterans' Affairs)
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