George and Repatriation Commission - [2002] AATA 681

DECISION AND REASONS FOR DECISION [2002] AATA 681

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/56

VETERANS' APPEALS DIVISION          )
           Re      NORMA ETHEL GEORGE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date13 August 2002
PlaceCanberra

Decision      The decision under review is affirmed.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - War Widow Pension – solar keratoses – adjustment disorder with depressed mood – suicide – whether conditions related to eligible service – decision affirmed

Veterans' Entitlements Act 1986 ss 20(1), 120(1), (3), (4), 120A(3)
Statement of Principles 71/96 concerning suicide as amended by SoP 177/96
Statement of Principles 47/2001 concerning solar keratoses as amended by SoP 55/2001
Statement of Principles 57/96 concerning adjustment disorder

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio, Repatriation Commission v (1998) 49 ALD 193
Gorton, Repatriation Commission v (2001) 33 AAR 370
Williams, Repatriation Commission v [2001] FCA 1195

REASONS FOR DECISION

13 August 2002 Mr M J Sassella, Senior Member

This is an application for review by the Administrative Appeals Tribunal ("the tribunal") of a decision of the Veterans' Review Board ("the VRB") on 12 November 1997 (T32). In that decision the VRB affirmed a decision of the Repatriation Commission ("the respondent") dated 12 April 1995 (T2). In its decision the respondent had rejected the claim by Norma Ethel George ("the applicant") for a War Widow Pension made by her on 30 June 1994 (T16). The applicant's claim was on the basis that the death of her husband, John George ("the veteran"), on or about 3 January 1984 (T6), had been war-caused. The death certificate described the cause of death as the "[e]ffects of poisoning by carbon monoxide, self administered with the intention of taking his own life".
The tribunal convened a hearing in this matter in Canberra on 28 August 2000. That hearing was adjourned in order to permit the applicant's representative to provide further material to the respondent and to allow the respondent to consider that material. With the agreement of the parties the matter was resumed on 27 August 2001 in Canberra. At the close of that hearing the applicant's representative had some problems with some sun exposure figures that had been entered into evidence and it was agreed that the parties would cooperate to assess these figures and process any amended figures. The tribunal was notified when this work was completed and issued directions for final written submissions from the parties. The last of these was received by the tribunal on 18 February 2002.
Documentary evidence before the tribunal was:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T36) provided by the respondent.
Exhibit A1 – Material from the veteran's DVA medical file.
Exhibit A2 – Report by psychologist Ms K Barrelle, 21 February 2000.
Exhibit A3 – Statement by applicant, undated.
Exhibit A4 – Veteran's DVA solar damage assessment, 14 September 2000.
Exhibit A5 – Veteran's postings while in navy…

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 George and Repatriation Commission

Details

AGLC: George and Repatriation Commission [2002] AATA 681
Case: [2002] AATA 681
Decision Date: 13 August 2002

CaseChat Overview and Summary

The applicant, on behalf of her deceased husband, applied for a War Widow Pension under the Veterans' Entitlements Act 1986. The deceased had served in the Australian Army from 1950 to 1952 and subsequently died by suicide in 2000. The primary issue before the tribunal was whether the applicant's husband's death was related to his eligible service under the Veterans' Entitlements Act 1986. Specifically, the tribunal needed to determine if there was a reasonable hypothesis linking his death to his service, and whether the applicant's husband's conditions, including solar keratoses, adjustment disorder with depressed mood, and suicide, were related to his eligible service. The tribunal also had to consider the evidence and arguments presented by both parties regarding the relationship between the deceased's service and his conditions.

The tribunal examined the evidence and submissions from both parties, including the Statement of Principles 71/96 concerning suicide, Statement of Principles 47/2001 concerning solar keratoses, and Statement of Principles 57/96 concerning adjustment disorder. The tribunal found that the applicant's husband's solar keratoses were related to his eligible service. However, it could not identify a reasonable hypothesis linking his death to his service. The tribunal considered the deceased's lifestyle and exposure to sunlight during his service, as well as the evidence regarding his mental health. The tribunal concluded that the deceased's adjustment disorder with depressed mood was not related to his eligible service, and therefore, his suicide could not be considered related to his service either.

Based on the evidence and submissions, the tribunal found that the applicant's husband's death was not related to his eligible service, and therefore, the applicant was not entitled to a War Widow Pension. The tribunal affirmed the decision of the respondent, the Repatriation Commission, and rejected the applicant's appeal. The tribunal considered the applicant's representative's efforts to provide additional material to ensure the accuracy of the UV damage factor, but ultimately found that the deceased's eligible service sun exposure was not sufficient to establish a link between his service and his death.

The tribunal's decision was based on a thorough examination of the evidence and submissions from both parties. The tribunal found that the applicant's husband's solar keratoses were related to his eligible service, but his adjustment disorder with depressed mood and subsequent suicide were not. The tribunal concluded that there was no reasonable hypothesis linking the applicant's husband's death to his eligible service, and therefore, the applicant was not entitled to a War Widow Pension. The tribunal's decision was affirmed, and the applicant's appeal was rejected.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant's application for a War Widow Pension has not succeeded. The tribunal has not found it possible to identify a reasnable hypothesis relating Mr George's death to his eligible service.DECISION The decision under review is affirmed.I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior MemberSigned: ..................................................................................... AssociateDates of Hearing 28 August 2000, 27 August 2001, written submissions lodged up to 18 February 2002 Date of Decision 13 August 2002Counsel for the Applicant Mr P Crabb, Solicitor Solicitor for the Applicant Snedden Hall & Gallop, Solicitors Advocates for the Respondent Mr G Wright and Mr J Marsh, DVA Advocacy Service Solicitor for the Respondent Mr J Marsh, DVA

Ratio Decidendi

Legal Principle Established

The definition of "solar UV damage factor ratio" appears in clause 8 of the SoP and is as follows:"solar UV damage factor ratio" means the value obtained by applying the solar UV damage factor ratio formula. This may be calculated by using the computer program, UV Risk Version 3.3 (created by the Australian Radiation Laboratory using MicrosoftÒ Visual BasicÔ Programming System for WindowsÔ Professional Edition, Version 3.0) to the data concerning the exposure of the person to ultra violet (UV) radiation;Note: (this note does not form part of the instrument) The computer program UV Risk Version 3.3 can be run on a personal computer with at least 8 megabytes of Random Access Memory, using the MicrosoftÒ WindowsÔ version 3.1 graphical user interface. Further information may be obtained from the Department of Veterans' Affairs, PO Box 21, Woden ACT 2606."solar UV damage factor ratio formula" means: This is clearly highly technical. As the definition of "solar UV damage factor ratio formula" stated above, DVA has authored a computer program that generates the damage factor ratio once relevant figures are arrived at and put into the program. Essentially the program considers the latitudes in which a veteran served and for how long he or she served in those latitudes. If the latitudes are sufficiently sun-drenched and the veteran's time there sufficiently lengthy then the UV damage factor will rise. In the present case the figures resulted in a factor of 3.3%, well short of the 10% reflected in the SoP requirement for a ratio of 1.1. As the respondent said in ex AH4, "The respondent submits that the UV calculations should come as no surprise and are consistent with the evidence about the veteran and his lifestyle. He was fair skinned of Irish (Celtic) origin, grew up in Bondi, and was an outdoor person who enjoyed sports including swimming and tennis and golf. … The evidence also shows that the veteran spent a considerable portion of his non eligible service in tropical areas including a lengthy posting in Darwin. Conversely, for a large portion of his eligible service he endured a northern hemisphere winter in Korea where sun exposure would have been minimal; and for his final posting he did office work at HMAS Harman in Canberra. … Therefore when eligible service sun exposure is considered in its proper context it can be readily seen why the calculated differential is so minor". In the conduct of this matter before the tribunal the applicant's representative sought on the first hearing day to provide additional material to the respondent with a view to ensuring that the UV damage factor was as accurate as possible in the interests of the applicant and considering the integrity of the process. That material was provided and the resultant factor of 3.06% was before the tribunal on its second hearing day (ex R6). At that hearing the applicant's representative submitted that the parameters in ex R6 might have been based on false assumptions. The tribunal gave the applicant time to liaise with DVA with a view to arriving at figures based on revised assumptions.