Harmer and Repatriation Commission (Veterans' entitlements) - [2017] AATA 655

Harmer and Repatriation Commission (Veterans' entitlements) [2017] AATA 655 (12 May 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/5386
Re:Beryl Harmer
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:12 May 2017
Place:Melbourne

The Tribunal affirms the decision under review.
...........................[sgd].............................................
Regina Perton, Member
VETERANS’ ENTITLEMENTS ‑ widow’s pension ‑ eligible war service – kind of death ‑ whether Statement of Principles met – alcohol consumption – causal or temporal connection with service – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 34J
Veterans’ Entitlements Act 1986 ss 8(1), 119(1), 120(4), 120B, 196, 196B(14)
CASES
Christopher Lloyd Walmsley v Repatriation Commission [1997] FCA 703
Re Gillman and Repatriation Commission (1993) 30 ALD 545
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Gorton (2001) 110 FCR 321
Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

Regina Perton, Member
12 May 2017

William George Harmer died on 25 March 1975 from a cerebral haemorrhage at the age of 48 years. He served in the Australian Army (the army) from 16 November 1944 to 10 December 1946. He did not serve outside Australia. His service is treated as eligible war service for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act).
Mrs Harmer lodged a claim for a widow pension on 8 October 2014 (the 2014 claim). The Repatriation Commission (the respondent) refused the claim on 23 October 2014 on the basis that Mr Harmer’s death was not the result of service-related disabilities. On 28 July 2015 the Veterans’ Review Board (VRB) affirmed the decision. Mrs Harmer lodged an application for review with the Tribunal on 15 October 2015, claiming that Mr Harmer’s death was caused by exposure to traumatic events at Kapooka Army Camp on 21 May 1945 in which 26 soldiers were killed in an explosion (the explosion event), which caused him to drink alcohol, resulting in hypertension which in turn caused an intracerebral haemorrhage and subsequent death.
Under s 34J of the Administrative Appeals Tribunal Act 1975, and with the consent of the parties, the Tribunal decided to review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.
ISSUES
The issues before the Tribunal are the kind of death and whether Mr Harmer’s death was related to his service.
Kind of death
The death certificate dated 7 April 1975 recorded that the cause of death was cerebral haemorrhage. A report by the New South Wales Coroner dated 26 March 1975 recorded that the cause of death was cerebral haemorrhage that had occurred 24 hours previously.
In a report dated 21 June 2016 Professor R Harper, consultant & intervention cardiologist, concluded after reviewing relevant documents that Mr Harmer died of a large intracerebral haemorrhage and the most likely cause was hypertension. He said that the clinical onset of hypertension was 10 February 1975 when an elevated blood pressure reading was recorded.
In a

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: [2017] AATA 655
Decision Date: 12 May 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Harmer against a decision of the Repatriation Commission regarding his claim for war-caused death benefits. The dispute centred on whether Mr Harmer's death from intracerebral haemorrhage, caused by hypertension, was war-caused under the *Veterans' Entitlements Act 1986* (Cth) (VE Act). The case was heard by Regina Perton, Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether Mr Harmer's death arose out of, or was attributable to, his eligible war service, applying the standard of reasonable satisfaction. Specifically, the Tribunal was required to determine if the death met the criteria set out in the relevant Statements of Principles (SoPs) formulated by the Repatriation Medical Authority, which dictate the necessary connections between service and the disease. The Tribunal had to consider the SoP in force at the date of its decision, and if its requirements were not met, then consider SoPs current at the time the claim was lodged.

The Tribunal applied SoP No. 66 of 2015, which defines cerebrovascular accident to include intracerebral haemorrhage. This SoP lists hypertension within five years before clinical onset and drinking at least 300 grams of alcohol per week for at least one year before clinical onset as relevant risk factors. The Tribunal noted that the parties agreed Mr Harmer suffered from hypertension at the time of the clinical onset of cerebrovascular accident and had consumed excessive alcohol in the periods preceding both the hypertension and the cerebrovascular accident. However, the Tribunal found that the specific requirements of SoP No. 66 of 2015 were not met. The Tribunal also considered SoP No. 52 of 2006, which was in force at the time of the respondent's decision, and also found its requirements were not met. Despite the beneficial nature of the VE Act and the passage of time, the Tribunal affirmed the decision under review, noting that a lack of evidence cannot be treated as favourable to an applicant.

Orders

Orders of the court

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Background

Background to the litigation

The parties agreed, and the Tribunal accepts, that the kind of death was intracerebral haemorrhage caused by hypertension.LEGISLATIVE BACKGROUND Section 8(1) of the VE Act provides:(1)Subject to this section…, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if: …(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;… Section 120(4) of the Act provides that the standard of proof to be applied as to whether the death arose out of, or was attributable to, any eligible war service is that of reasonable satisfaction i.e. on the balance of probabilities. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act. That means that where there is a Statement of Principles (SoP) formulated by the Repatriation Medical Authority under s 196 of the VE Act, the Tribunal must apply that SoP in deciding whether there is a connection between Mr Harmer’s eligible war service and the disease that led to his death. For the purposes of formulating the SoPs, the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence of the necessary connections between service and the injury or disease in accordance with generally accepted medical practice for the diagnosis and management of a medical condition. Section 196B(14) of the VE Act states:(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:…(b) it arose out of, or was attributable to, that service; or…(d)it was contributed to in a material degree by, or was aggravated by, that service; or…Relevant Statements of Principle The relevant SoP for cerebrovascular accident is SoP No. 66 of 2015 and defines the condition to include intracerebral haemorrhage. In accordance with the decision of the Full Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321 the Tribunal must apply the SoP in force at the date of its decision. If the requirements of that SoP are not met, the Tribunal can then consider other SoPs that were current at the time of lodgement of the claim. The factors that can lead to death from cerebral haemorrhage are set out in SoP No. 66 of 2015. The relevant risk factors in paragraph 6 are:(a)having hypertension within the five years before the clinical onset of cerebrovascular accident;…(d)drinking an average of at least 300 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident;… The SoP that was in force at the time of the respondent’s decision is SoP No. 52 of 2006 concerning cerebrovascular accident. The relevant risk factors in paragraph 6 are:(a)having hypertension at the time of the clinical onset of cerebrovascular accident; or …(c)drinking an average of at least 300 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident; The parties agreed, and the Tribunal accepts, that Mr Harmer was suffering from hypertension at the time of clinical onset of cerebrovascular accident on 24 March 1975; drank an average of at least 300 grams of alcohol per week for at least the one year before the clinical onset of cerebrovascular accident; and consumed an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension on 10 February 1975.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal takes into account the beneficial nature of the VE Act and the passage of time (s 119(1) of the VE Act). However, as was pointed out in Re Gillman and Repatriation Commission (1993) 30 ALD 545, s 119(1) does not allow the Tribunal to treat a lack of evidence as evidence favourable to an applicant. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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