JEAN MOORE and REPATRIATION COMMISSION - [2012] AATA 259

[2012] AATA 259

Division VETERANS' APPEALS DIVISION

File Number(s)

2010/5414

Re

JEAN MOORE

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Ms A F Cunningham (Senior Member)
Dr R J Walters RFD

Date 4 May 2012

Place Hobart
The decision under review is affirmed.
........................................................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - war widow’s pension – whether death of veteran from metastatic cancer of the liver war-caused - whether death contributed to by chronic bronchitis and/or emphysema - no diagnosis of respiratory disease - hypothesis not upheld by SoP - whether veteran's diet during service causative of primary carcinoma of the bowel – hypothesis not upheld by SoP- decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986, ss 8, 13, 120(1), 120(3), 120A(3)

Instrument No 1 of 2004 and Instrument No 39 of 2011 – Malignant Neoplasm of the Colorectum
Instrument No 30 of 2004 – Chronic Bronchitis and Emphysema

CASES
Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Codd [2007] FCA 877
Collins v Repatriation Commission (2009) 177 FCR 280
Repatriation Commission v Law (1981) HCA 57

Brew v Repatriation Commission (1999) 94 FCR 80
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
Dr R J Walters RFD

The applicant, Jean Moore, was the wife of Joe Richard Moore (the veteran) who died on 20 June 2007 at the age of 82 years. The veteran served in the Australian Army on two separate periods between 16 July 1943 and 24 September 1946 and between 21 September 1965 and 24 September 1966 which constituted eligible war service within the meaning of the Veterans’ Entitlements Act 1986 (the Act). Mrs Moore seeks the review of a decision which rejected her claim for a war widow’s pension on the basis that the death of the veteran was not war caused.
Oral evidence was given by the applicant, Jean Moore, Eric Colquhoun, General Practitioner, Professor Richard Fox, Physician Royal Melbourne Hospital and Professor John Cade, Principal Specialist in Intensive Care Royal Melbourne Hospital. Written statements were received in evidence from members of the applicant’s family namely Neville Moore, the veteran’s brother, Evelyn Moore the veteran’s daughter and Heather Nettle the veteran’s daughter. The T Documents were received into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Also tendered were extracts from the veteran’s departmental medical file, the veteran’s service medical documents, the Writeway Report dated 12 September 2011 prepared by Major Ian Hawke, Dr Colquhoun’s clinical notes, various medical reports prepared by the medical witnesses and annexures E to V referred to in the Applicant’s Statement of Facts, Issues and Contentions,
The Medical Certificate of Cause of Death Certificate states that the disease or condition leading to directly to death was metastatic cancer of the liver and the antecedent cause was probably primary carcinoma of bowel (based on CT scan) with other significant conditions being cachexia. The death certificate was signed…

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.

Continue reading JEAN MOORE and REPATRIATION COMMISSION

Details

AGLC: JEAN MOORE and REPATRIATION COMMISSION [2012] AATA 259
Case: [2012] AATA 259
Decision Date: 4 May 2012

CaseChat Overview and Summary

In the case of Jean Moore and the Repatriation Commission, the applicant sought a war widow’s pension under the Veterans' Entitlements Act 1986 (Cth), asserting that the veteran's death from metastatic cancer of the liver was attributable to his war service. Specifically, the applicant argued that the veteran's death was hastened by chronic bronchitis and/or emphysema, which she claimed were war-caused conditions. The Tribunal was required to determine whether the veteran's death was attributable to his war service as per the relevant Statement of Principles (SoP). This involved assessing the connection between the veteran's death and his service, and whether the hypothesis linking the death to his service was supported by the SoP.

The Tribunal examined the evidence provided by the applicant and the family members regarding the veteran’s health decline post-service. However, the Tribunal found no evidence linking the veteran's death to his service in a manner that was supported by the relevant SoP. The Tribunal noted that, under Clause 4 of the Act, at least one of the factors set out in Clause 5 must be related to the relevant service. Furthermore, the Tribunal accepted the Writeway Report which compared the standard army rations favourably with civilian diets, thereby undermining the hypothesis that the veteran's diet during service caused his primary carcinoma of the bowel.

Following the analysis, the Tribunal concluded that the veteran's death was not attributable to his war service. The decision was based on the absence of evidence connecting the veteran's death to his service in accordance with the relevant SoP. The Tribunal found that the hypothesis regarding chronic bronchitis and/or emphysema was not upheld by the SoP, as there was no evidence of exposure to a respiratory tract irritant that would meet the criteria set out in Instrument No 30 of 2004. The Tribunal was satisfied beyond reasonable doubt that there was insufficient ground to determine that the veteran's death was war-caused.

In light of the above, the Tribunal affirmed the decision under review, upholding the Repatriation Commission's decision to deny the war widow’s pension. The Tribunal held that the applicant's claim, made after 1 June 1994, could only be reasonable if supported by a SoP, which was not the case here.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Whilst the Tribunal has no reason to doubt the evidence of the applicant and the evidence contained in the statements from family members regarding the veteran’s decline in health following his return from service, it finds that there is no evidence that links his death with his service in the manner contemplated by the relevant SoP. As stated in Clause 4 at least one of the factors set out in Clause 5 must be related to the relevant service rendered by the person. There is no evidence that the veteran was unable or lacked the power to consume the quantities of fibre and/or folate referred to in Clause (m) and (o) of the SoP. In the absence of any other evidence, the Tribunal accepts the material contained in the Writeway Report regarding the standard army rations which compared favourably with civilian diets of the period.CONCLUSION Section 13 of the Act states that the Commonwealth is liable to pay a pension to a claimant where the death of a veteran is war caused. Under section 8 a war caused death must arise out of or be attributable to any eligible war service rendered by the veteran. The claimed connection between the veteran’s death and his service is assessed pursuant to section 120 of the Act in the manner considered in the preceding paragraphs. For the above stated reasons the Tribunal is satisfied beyond reasonable doubt that the veteran’s death was not attributable to his war service and it is accordingly the Tribunal’s decision to affirm the decision under review.

Ratio Decidendi

Legal Principle Established

As the claim was made after 1 June 1994, pursuant to section 120A(1) and (3), a hypothesis connecting the veteran’s death with the circumstances of service can only be reasonable where a Statement of Principles upholds the hypothesis.CONSIDERATION The leading case explaining the application of subsections 120(1) to (3) is Repatriation Commission v Deledio (1998) 83 FCR 82 at 97. In that case the Full Court (Beaumont, Hill and O’Connor JJ) outlined four steps which can be summarised as follows:·Step 1 – Whether the material points to the requisite hypothesis.·Step 2 – Is injury, disease or death the subject of an SoP?·Step 3 – Is the hypothesis upheld by the relevant SoP?·Step 4 – Is the Tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury, disease or death was war caused?CHRONIC BRONCHITIS AND/OR EMPHYSEMAStep 1 The Tribunal is satisfied that the hypothesis raised by the applicant and outlined above is raised by the material before it and in particular the medical evidence of Dr Colquhoun who opined that:“It is an entirely reasonable hypothesis that Mr Moore’s death of metastatic cancer, deposits in the liver was hastened or accelerated by COAD (Chronic Obstructive Airways Disease)”.Step 2 The Statement of Principles relied upon by the applicant is Instrument No 30 of 2004 concerning Chronic Bronchitis and Emphysema The Tribunal is satisfied that the identified SoP is relevant to the stated cause of the veteran’s death. Dr Colquhoun stated that it was his understanding that Mr Moore’s duties had involved working with chlorine powder which he said, when mixed with water, generates chlorine. Step 3 The next question for the Tribunal to determine is whether the hypothesis raised is upheld by the relevant SoP. That is whether the hypothesis is consistent with the template found within the SoP. This involves a consideration of the material before the Tribunal. With respect to Instrument No 30 of 2004 the factor relied on, namely 5(b) requires exposure to a respiratory tract irritant resulting in signs and symptoms of acute and serious insult to the lower respiratory tract within ten years immediately before the clinical onset of chronic bronchitis and/or emphysema. The definition of respiratory tract irritant as stated in paragraph 8 means:“(a) mustard gas; or(b) Lewisite; or(c) chlorine gas; or(d) phosgene; or(e) phthalic anhydride; or(f) anhydrous ammonia gas; or(g) another respirable agent which causes comparable tissue damage”. There are references to COAD in the veteran’s Repatriation Department medical documents where “mild COAD” was reported on 18 October 1989 by the medical examiner. In a report from Dr George Cowen dated 29 June 1989, he includes chronic obstructive airways disease in his summary. Dr Shirley MacIntyre’s radiological report of 1 June 2007 states “the lungs are moderately overinflated and the appearance of the lung fields is consistent with COPD”.

Division	VETERANS' APPEALS DIVISION
File Number(s)	2010/5414
Re	JEAN MOORE
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Ms A F Cunningham (Senior Member) Dr R J Walters RFD
Date	4 May 2012
Place	Hobart