JOYCE HOWES and REPATRIATION COMMISSION - [2013] AATA 278

[2013] AATA 278

Division VETERANS' APPEALS DIVISION

File Number

2012/4381

Re

JOYCE HOWES

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 8 May 2013

Place Brisbane
The Tribunal sets aside the decision under review and substitutes its decision that the death of the veteran was war-caused and that the applicant is entitled to receive the war widow’s pension with effect from 7 August 2011.
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Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and Benefits – Widow’s pension – Operational service with Royal Australian Air Force – Kind of death from cerebrovascular accident – Statements of Principles – Clinical onset – Increase in alcohol consumption or cigarette smoking – Increase related to operational service – Reasonable hypotheses of relationship to eligible service raised – Not satisfied beyond reasonable doubt death not war-caused – Decision set aside and substituted
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 14, 70, 120, 120A, 177
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622

Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
East v Repatriation Commission (1987) 12 ALD 389
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Law (1981) 36 ALR 411

Repatriation Commission v Roncevich (2005) 222 CLR 115
Repatriation Commission v Tuite (1993) 39 FCR 540

SECONDARY MATERIALS
Statement of Principles: Instrument No. 51 of 2006 as amended by Instrument No. 123 of 2011

REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND

John Howes (the veteran) served in the Royal Australian Air Force (RAAF). He died on 15 September 2009 at the age of 78 years. The applicant is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (the Act). On 7 February 2011, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 16 September 2011 and by the Veterans’ Review Board on 5 September 2012.
SERVICE
The veteran’s RAAF service was from 20 March 1950 until 26 August 1974. He rendered eligible war service in the form of operational service in accordance with ss 7 and 6C, respectively, of the Act from 22 June 1958 until 24 October 1960 as part of the Far East Strategic Reserve in Butterworth, Malaysia. He also rendered a period of defence service in accordance with s 70 of the Act from 7 December 1972 until his discharge.
CAUSATION
It is common ground that the veteran’s defence service is not relevant to the applicant’s claim. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act…

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 JOYCE HOWES and REPATRIATION COMMISSION

Details

AGLC: JOYCE HOWES and REPATRIATION COMMISSION [2013] AATA 278
Case: [2013] AATA 278
Decision Date

CaseChat Overview and Summary

The case between Joyce Howes and the Repatriation Commission was heard by the Tribunal. The central issue was whether the veteran's death from a cerebrovascular accident was attributable to his war service, specifically his service in Butterworth. The applicant argued that the stress and conditions of service led to an increase in the veteran's smoking and alcohol consumption, which contributed to his death. The respondent contended that any increase in smoking and drinking was temporally related to the service and not causally connected to it.

The Tribunal had to determine if the veteran's service in Butterworth contributed to his continued alcohol consumption and if this was a war-caused factor leading to his death. The Tribunal considered the veteran's predisposition to duodenal ulcers, his increased smoking and alcohol consumption during service, and the nature of his duties as an armourer. The Tribunal found that the material before it supported a hypothesis that the veteran's service in Butterworth was a contributing cause to his continued alcohol consumption, including the introduction of spirits, until his cerebrovascular accident. As a result, the Tribunal concluded that the veteran's death was war-caused and that the applicant was entitled to a widow's pension from 7 August 2011.

The Tribunal's reasoning hinged on the connection between the veteran's service in Butterworth and his increased smoking and alcohol consumption. It found that the material supported a hypothesis that these habits were exacerbated by the stress of service. The Tribunal also noted the relevance of the departmental medical opinion that the veteran's duodenal ulcer, treated during service, was due to his predisposition, aggravated by heavy smoking and drinking. The Tribunal determined that the hypothesis was reasonable and consistent with the Statement of Principles. The Tribunal was not satisfied beyond reasonable doubt that the veteran's death was not war-caused and thus set aside the previous decision, substituting its own that the veteran's death was war-caused.

The final order of the Tribunal was that the decision under review was set aside, and a new decision was substituted, finding that the veteran's death was war-caused and that the applicant is entitled to receive the widow's pension with effect from 7 August 2011.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the respondent, Mr Kelly submitted that the veteran was an established smoker and drinker from well before he was posted to Butterworth. He also submitted that any subsequent increase during service bore merely a temporal relationship to his operational service. He submitted that the nature of his duties at Butterworth was not materially different from those he performed at Amberley before his overseas posting and that any increase in smoking and drinking was associated with social activities on weekends with other family members, including children. He submitted that the decision under review should be affirmed. EVIDENCEThe applicant The applicant met the veteran in Brisbane in 1950 and they were married in 1951. She noted that, at that time, he smoked about five cigarettes per day and drank socially, usually in the form of a few drinks on a Friday afternoon. In Butterworth, they lived in the married quarters in Penang with their young son, Peter. She believed that the veteran’s service there was stressful for him and she became aware of his increase in smoking and alcohol consumption because of it. She described the veteran as a perfectionist and she believed that his high standards increased the stress associated with carrying out his duties as an armourer handling live 500 pound bombs. The applicant said that the veteran had been promoted to corporal in Butterworth and that this further increased his stress levels because of the additional responsibility of supervising younger airmen. She recalled that he would call out in his sleep on matters relating to that responsibility. She also recalled an incident when an aircraft, loaded with live bombs, crashed on take-off with the navigator being trapped by the legs. She said that the veteran was on duty at the time and was involved in releasing the man from the plane and extinguishing a fire. The applicant said that, in Butterworth, cigarettes and beer, but particularly spirits, were substantially less expensive than in Australia. She noted that, while there, the veteran would have a cigarette on waking and before going to bed at night and that, from then onwards, the veteran smoked about two packets of cigarettes per day until he finally ceased smoking in 1988 after a stroke. She said that the veteran took advantage of the lower alcohol prices to purchase and consume more of it but also began to consume spirits, either scotch or bourbon. The applicant referred to the veteran’s medical evacuation from Butterworth because of a duodenal ulcer which required him to undergo treatment in Australia at Richmond. The applicant said that his smoking and alcohol consumption continued in subsequent postings to Amberley, Williamtown and Evans Head and she recalled that the veteran would usually repair to a hotel after stand-down from duty on Friday afternoons, remain there until closing and continue to “binge drink” during the weekends with beer and spirits. After he left the RAAF and retired, the applicant and the veteran lived at Yandina and she recalled that, each week, he would purchase and take home from the hotel a carton of beer and a bottle of Captain Morgan rum. She described the pattern of drinking as continuing until shortly before he died.

Decision

Reasons for decision

On the material before me, I can not be satisfied beyond reasonable doubt that the veteran’s service in Butterworth was not a contributing cause to the continued level of the veteran’s alcohol post-Butterworth consumption, especially with the inclusion of spirits, until the clinical onset of his cerebrovascular accident in 1987. It follows that I am not satisfied beyond reasonable doubt that the veteran’s death from cerebrovascular accident was not war-caused, in accordance with s 8 of the Act, by that means. The applicant is entitled to be paid the widow’s pension with effect from 7 August 2011, a date set in accordance with s 177 of the Act and agreed to by the parties.DECISION The Tribunal sets aside the decision under review and substitutes its decision that the veteran’s death was war-caused under s 8 of the Act and that the applicant is entitled to receive the widow’s pension with effect from 7 August 2011.

Ratio Decidendi

Legal Principle Established

The veteran underwent treatment for a duodenal ulcer which was accepted as being related to his service because it had its onset during that service in 1960. A departmental medical opinion in relation to his claim noted:[10]In member’s case duodenal ulcer is due to inherent predisposition, aggravated by heavy smoking and heavy alcohol consumption.[10] See Exhibit 6.PROCEDURE FOR CONSIDERATION The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[11](i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. (ii) If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ... (iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail. (iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.[11] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82 – 83.Step 1:- Hypotheses The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. I accept that two hypotheses have been raised on behalf of the applicant. The first hypothesis is that the veteran increased his smoking by at least five cigarettes per day because of a combination of service-related matters and maintained that increase until the clinical onset of his cerebrovascular accident. The second is that the veteran was a social consumer of alcohol before his posting to Butterworth and that a combination of factors during that service was causally associated with his increase in the level of consumption and the change in its nature from drinking beer only to consuming spirits as well which continued until the clinical onset of his cerebrovascular accident. Step 2:- Statement of Principles

Division	VETERANS' APPEALS DIVISION
File Number	2012/4381
Re	JOYCE HOWES
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	8 May 2013
Place	Brisbane