Greentree and Repatriation Commission (Veterans' entitlements) [2019] AATA 314 (1 March 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2016/6958
VETERANS' APPEALS DIVISION )Re: Carole Greentree
Applicant
And: Repatriation Commission
Respondent
DIRECTION
TRIBUNAL: Deputy President J Sosso
DATE OF CORRIGENDUM: 5 April 2019
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The date “19 November 2015” where it appears on page 1, and also at paragraph 162 on page 43 should read “27 December 2015”.
......................[Sgd].............................................
Deputy President
Division:VETERANS' APPEALS DIVISION
File Numbers: 2016/6958
Re:Carole Greentree
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:1 March 2019
Place:Brisbane
The decision under review is set aside and substituted with a decision that the Applicant is entitled to the war-widow's pension with effect from 19 November 2015.
.........................[Sgd]...............................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – claim for war widow’s pension – veteran deceased – Statement of Principles No 9 of 2013- Adenocarcinoma of the Kidney –inhaling respirable asbestos fibres – whether inhalation of respirable asbestos fibres in an open environment for at least 3,000 hours before clinical onset – was contributed to in a material degree – hypothesis raised is reasonable – hypothesis fits the Statement of Principles – facts not disproved beyond reasonable doubt - decision under review set aside.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
Acts Interpretation Act 1901 (Cth)CASES
Adler v George [1964] 2 QB 7
Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570
Cameron v Repatriation Commission [2003] FCA 1323
Collins v Repatriation Commission (2009) 177 FCR 280
Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlopv Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission [2002] FCA 26
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Grey v Pearson (1857) 10 ER 1216
Hardman v Repatriation Commission [2005] FCAFC 83
Hill v Repatriation Commission [2004] FCA 832
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 365
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Glanville (2010) 114 ALD 616
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Knight (2012) 202 FCR 451
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Stares (1996) 66 FCR 594
Riley v Repatriation Commission [2008] FCA 531
Starcevich v Repatriation Commission (1987) 76 ALR 449
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- Case
- [2019] AATA 314
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CaseChat Overview and Summary
The legal issues before the court were whether the veteran's exposure to respirable asbestos fibres during his service materially contributed to his adenocarcinoma of the kidney, and consequently, whether Ms Greentree was entitled to a war widow's pension. This required the court to determine if the hypothesis that the veteran's condition was caused by asbestos exposure was reasonable and if the facts necessary to support this hypothesis had been disproved beyond reasonable doubt, or if facts inconsistent with the hypothesis had been proven beyond reasonable doubt. The court also had to consider the antecedent inquiries required before applying the methodology for determining claims under sections 120 and 120A of the relevant Act, as explained in *Collins v Repatriation Commission*. These inquiries include establishing the claimant's status, whether the veteran suffered an injury or disease or died, and the "kind of death" of the veteran, all to be determined on the balance of probabilities or to the reasonable satisfaction of the decision-maker.
The court's reasoning focused on the evidence presented, particularly the statement of Mr Ian Angove, a former colleague who served with the veteran in South Vietnam. Mr Angove’s evidence detailed the practice of using compressed air hoses to clean brake dust and dirt, which contained asbestos fibres, in enclosed workshop environments. This practice, along with sweeping floors, dispersed asbestos fibres into the air, which were then inhaled by mechanics. The court noted that the Tribunal had not adequately considered this evidence when concluding that the veteran would have only infrequently been exposed to the relevant conditions. The court applied the principles from *Collins* and *Hancock*, emphasizing that the Tribunal must make an independent conclusion on the "kind of death" based on the weight of medical evidence, not solely on the terminology used in the death certificate. The court found that the hypothesis raised by Ms Greentree was reasonable and that the facts necessary to support it had not been disproved beyond reasonable doubt, nor had facts inconsistent with it been proven beyond reasonable doubt.
Consequently, the decision under review was set aside and substituted with a decision that Ms Greentree was entitled to the war widow's pension, with effect from 19 November 2015.
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
There are antecedent inquiries required of the Tribunal before applying the Deledio methodology which were explained by the Full Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280 (Collins) as follows (284 – 285):“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:1. whether the claimant was a veteran, or a dependant of a deceased veteran;2. whether the veteran has suffered an injury or disease or has died..; and3. the cause of death or the ‘kind of death’ of the veteran..these matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”CONSIDERATIONPreliminary Issues As explained in Collins it is necessary to deal with certain antecedent threshold issues. It is not contested that the Applicant is the widow of the veteran who rendered operational service whilst serving in South Vietnam between 1970-1971. It is also not contested that the veteran died on 26 December 2015 and that his Death Certificate lists his cause of death as end stage congestive cardiac failure and right renal cell cancer with lung metastases – Exhibit 1 T5 p. 30. However, the cause of death for the purposes of ss 120 and 120A requires an inquiry into the ‘kind of death’ suffered by the veteran – s 120A(4). The importance of resolving this question was explained by Selway J in Hancock as follows (at [11]):“The AAT, faced with the evidence of Dr Betty should have proceeded as follows:(a)First, the Tribunal was required to determine, on the balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.(b)Next, the Tribunal was required to determine on the balance of probabilities what ‘kind of death’ Mr Hancock had suffered. This involved the identification, on the balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.(c)If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.(d)If only a determination under s 180A(2) is applicable, then the application must fail.(e)If no SoP and no determination is applicable at all or to a particular ‘kind of death’, then the methodology in Byrnes is applicable in relation to that.” It is also the case that there may be more than one medical cause for a veteran’s incapacity or death – Collins at 289 – 290 per Mansfield and Stone JJ. Further, in reaching a conclusion on the ‘kind of death’ the Tribunal is not bound by terminology used in the Death Certificate. The Tribunal must consider the medical evidence and reach an independent conclusion based on the weight of evidence presented in the context of the specific inquiry mandated by the Act – see, generally, Willman and Repatriation Commission [2007] AATA 1480 at [23].