Hopkins and Repatriation Commission - [2014] AATA 606

[2014] AATA 606

Division VETERANS' APPEALS DIVISION

File Number

2013/4267

Re

Kenneth Hopkins

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 27 August 2014

Place Brisbane
The Tribunal affirms the decision under review.
............................[Sgd]............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Operational service and defence service with Australian Regular Army – Application of Statements of Principles – Diagnosis of Alzheimer-type dementia – Clinical onset – Reasonable hypothesis of relevant relationship to service raised – Not satisfied beyond reasonable doubt that Alzheimer-type dementia war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 6C, 7, 9, 14, 68, 119, 120, 120A, 126
CASES
Dunlop v Repatriation Commission [2002] FCA 1400
Fogarty v Repatriation Commission [2003] FCAFC 136
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331.
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Sloan v Repatriation Commission [2012] FCA 1079
SECONDARY MATERIALS
Statements of Principles concerning Alzheimer-type dementia No. 22 of 2010 as amended by Amending Statement of Principles No. 17 of 2014.
REASONS FOR DECISION
Mr R G Kenny, Senior Member
27 August 2014
BACKGROUND

On 18 September 2012, Audrey Hopkins was the wife of Kenneth Hopkins

(“the veteran”) when she lodged, on the veteran’s behalf, a claim in accordance with

s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with the Repatriation Commission for “Alzheimer–type dementia”. She contended that this related to his service in the Australian Regular Army (“the army”). On 12 February 2013, a delegate of the Repatriation Commission rejected that claim. On 6 June 2013, the

Veterans’ Review Board (“the Board”) affirmed that decision. On 10 December 2013, the veteran died and, in accordance with s 126 of the Act, Mrs Hopkins has continued the claim as his legal personal representative.
SERVICE and ISSUES
The veteran served in the army from 30 May 1952 until 4 April 1975. This included the period from 13 November 1968 until 26 November 1969 of eligible war service in the form of operational service in South Vietnam under ss 7 and 6C of the Act. It also included the period of defence service, in accordance with s 68 of the Act, from

7 December 1972 until he was discharged. It is common ground that no issues arise in relation to the veteran’s defence service.
Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered”. The standard of proof to be used in determining diagnostic matters is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] For issues of causation for operational service, the standard of proof is set out in ss 120(1) and (3) of the Act. These read:
[1] Fogarty v Repatriation Commission [2003]…

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: [2014] AATA 606
Decision Date: 27 August 2014

CaseChat Overview and Summary

In the matter of Hopkins and the Repatriation Commission, the primary dispute centred on whether the veteran's Alzheimer-type dementia was attributable to his service. The case was heard in the Administrative Appeals Tribunal, tasked with reviewing the decision made by the Commission regarding the veteran's entitlement to a war-related pension. The veteran, who served in the Australian Regular Army, alleged that his condition was linked to his service in Vietnam, particularly his smoking habit during his deployment, which allegedly began when he joined the British Army and intensified during his service in Vietnam.

The court was required to determine whether the veteran's Alzheimer-type dementia was war-caused, specifically if it could be reasonably hypothesised that the condition had a relevant relationship to his service. This involved assessing the evidence provided by Mrs Hopkins, who submitted various documents and gave oral testimony regarding the veteran's smoking habits and lifestyle changes. The court also needed to evaluate the strength of the evidence linking the condition to the service, considering whether the condition was sufficiently linked to the service to be considered war-caused.

The court concluded that, although a reasonable hypothesis of a relevant relationship to service was raised, the evidence did not satisfy the threshold of being satisfied beyond reasonable doubt that the Alzheimer-type dementia was war-caused. Mrs Hopkins' testimony and the documentary evidence provided were deemed insufficient to establish a causal link between the veteran's smoking during service and his dementia. The court thus affirmed the decision of the Repatriation Commission, finding that the veteran's Alzheimer-type dementia was not war-caused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue for determination is whether the veteran’s Alzheimer–type dementia is a war-caused condition. EVIDENCE Mrs Hopkins In the claim form it was noted that, because of the veteran’s Alzheimer-type dementia, the veteran became bedridden and had no comprehension of anything. It was contended that this condition developed because of his smoking habit which was attributed to his service in Vietnam in 1968 and 1969. It was noted that, from 1981 until 1986, he smoked about 10 cigarettes per day, supplemented with pipe smoking of 2 packets of tobacco each week, until 1987. It is also noted that the veteran continued to smoke about 10 cigarettes per day until 1990 when he ceased smoking. In a smoking questionnaire completed on 12 March 2013, it was noted that the veteran commenced smoking when he joined the British Army and increased to 30 cigarettes per day in Vietnam in 1968. Cessation was noted to be in early to mid-1991. Other documents which refer to the veteran’s smoking were signed by Mrs Hopkins on 15 January 1998, 14 September 2012 and 12 March 2013. In the second of those, it was declared that the veteran ceased smoking “towards [the] end of 1990”. While those various document were signed by Mrs Hopkins, she agreed in her oral evidence that she had not completed the details contained therein. In her evidence, Mrs Hopkins was referred to statements by the veteran that he had ceased smoking in the 1980s. She said that this was not correct and she confirmed that he ceased smoking in mid-1991. Mrs Hopkins described the veteran as a keen golfer who carried administrative responsibilities at the Terranora Golf Club until 1991 when he ceased these due to his health problems. He continued to play golf over a reduced number of holes when assisted by friends. She said that the veteran had difficulties driving and would get lost at times, even when he was out walking. She and the veteran travelled to the United Kingdom in 1989 and she saw those tendencies occurring there. She also recalled that the veteran purchased duty free cigarettes on return to Australia after that trip. Mrs Hopkins and the veteran were married in 1953, having met in the previous year on board a ship bringing them to Australia. She described him as a light smoker at that time but as a heavy smoker after he returned from Vietnam. She also said that the veteran’s smoking levels increased in the last two or three years of his service because his income increased and he was more able to afford cigarettes. While in the army, the veteran and Mrs Hopkins lived in Sydney. After his army discharge in 1975, the veteran worked in the private sector for some years, although Mrs Hopkins was uncertain of the duration of this, providing estimates of three, four and five years. They moved to the Gold Coast sometime after he ceased that work and Mrs Hopkins variously described the year of that move as 1982, 1986 and 1988. She said that, after moving to the Gold Coast, she assumed responsibility for purchasing the veteran’s smoking supplies as part of her weekly shopping routine. She said that she purchased a carton of approximately 300 cigarettes and a couple of packets of pipe tobacco each week until 1990. When giving evidence of the dates of cessation of the veteran’s smoking and the dates of moving from Sydney to the Gold Coast, Mrs Hopkins declared that she was confused.

Decision

Reasons for decision

I am satisfied beyond reasonable doubt that the veteran’s Alzheimer-type dementia is not war-caused. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2013/4267
Re	Kenneth Hopkins
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	27 August 2014
Place	Brisbane