Hague and Repatriation Commission

[2005] AATA 1090

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1090

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2005/326

VETERANS’ APPEALS DIVISION		)
Re		JOYCE HAGUE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date14 October 2005

PlaceTownsville

Decision The decision under review is affirmed.

................[Sgd]..............................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – war widows pension – material does not point to a hypothesis –  material does not point to a causal connection between the veteran’s drinking and diet and war service – veteran’s circumstances explicable by family routines – decision under review affirmed.

Veterans Entitlements Act 1986  s 120

Repatriation Commission v Deledio (1998) 49 ALD 193

WRITTEN REASONS FOR ORAL DECISION

4 November 2005 Senior Member B J McCabe         

1.      This is an application by Mrs Joyce Hague for a War Widows Pension under the Veterans Entitlements Act 1986 (the VEA).  She is claiming a pension in respect of her late husband who died on 25 January 1993 at the age of 68.  The Tribunal gave oral reasons for its decision to refuse Mr Hague’s application. She subsequently requested written reasons for the decision.

2.      There is no question Mr Hague rendered operational service during World War II, and for some period thereafter in New Guinea and Bougainville.  There is also no question that the late veterans’ cause of death was colon cancer.  Having identified the medical condition from which the late veteran was suffering, the VEA requires me to assess the claim pursuant to the provisions laid down in section 120. 

3.      The Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 says I should follow a four step process: the first step is to identify the hypothesis, which links the veteran's condition or his death with the circumstances of his service.  I must identify what the applicant says is the link between the service and the late veteran's death.  Mrs Hague says she thinks the colon cancer is connected with the late veteran’s diet and his alcohol intake, and potentially his obesity.  There is no material before me that points to Mr Hague being obese in the relevant sense.  It appears he was overweight, but he was not obese in the relevant period.

4.      There is some evidence that points to diet and alcohol consumption being factors in the development of colon cancer. It is not clear whether there is any connection between the late veteran’s diet and alcohol consumption and the circumstances of his service.  As it happens, we know little about the late veteran’s life in the services. Mrs Hague met the veteran in 1947 after he returned home. The applicant gave evidence that her husband did not talk about his experiences during the war.

5.      I am not satisfied the applicant has been able to refer to material that points to a hypothesis between the circumstances of Mr Hague’s service and his colon cancer. Even so, I will address the other matters raised in the Deledio process for the sake of completeness as if an hypothesis were made out.

6.      The next step is to identify the relevant statement of principles, and, in this case, it is clearly instrument number 1 of 2004 which deals with malignant neoplasm of the colorectum. 

7.      The third step set out in Deledio requires that I determine whether it is possible to fit the applicant's story within the template provided by the relevant statement of principles. When I look to the factors and the evidence before me it is impossible for factor 5(L) to be satisfied.  It seems to me there is some doubt on the evidence as to whether factors 5(D) and (E) are satisfied.  It is likely that factor 5(C)  (drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of a malignant neoplasm of the colorectum) is satisfied, assuming that the date of onset is in late 1992.  There is no evidence suggesting that he had a diagnosable condition prior to that point. Although Mrs Hague suggests that there may, in fact, have been some symptoms before that, there was no diagnosable condition prior to that date.

8.      But merely identifying that someone drank a large amount of alcohol is not enough in order to succeed in a claim under the VEA.  It must be established that the drinking is connected with the late veteran’s service. All the evidence before me suggests the heavy drinking and diet are not explained by the circumstances of his army service, but are clearly explicable by his family circumstances.  His dietary intake followed a pattern that was evident after the war when his mother served large numbers of meat dishes.  That was the family diet, and it is the family diet that Mrs Hague continued to serve her husband in good faith.

9.      The alcohol consumption appeared to be very much a matter of family circumstances as well. Mrs Hague has made it clear that it was the late veteran's practice to go and drink with members of the family almost every day over a long period of time.  He drank with his brothers and with his father.  It was not a product of war service; it was a product of that particular lifestyle, which was a feature of the family's existence.

10.     In all the circumstances, I cannot be satisfied there is a causal connection between the veteran's drinking and diet and his war service.  I reach that conclusion with some hesitation, because it is clear that Mrs Hague has the best of motivations in pursuing this claim.  She has made it clear her application is not motivated by a desire for the pension. Her application was made because she wants to see her late husband's memory honoured. That is understandable and appropriate.

11.     The legislation makes it clear veterans are to be treated generously when a connection is established between their illness later in life and the circumstances of their service. But there is no provision for recognition through a War Widows Pension where that link between service and illness cannot be established.  In those circumstances, the decision denying the War Widows Pension must be affirmed.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:                 Sam J Appleton

Date of Hearing  14 October 2005, Townsville
Date of Decision  14 October 2005, Townsville (oral decision)
  4 November 2005, Brisbane (written reasons)
The applicant appeared in person.
The respondent was represented by Mr Stoner, departmental advocate.