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
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
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- Case
- [2017] AATA 655
- Decision Date
CaseChat Overview and Summary
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.
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