Kennedy and Repatriation Commission - [2000] AATA 884

DECISION AND REASONS FOR DECISION [2000] AATA 884

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/959

VETERANS' APPEALS DIVISION          )
           Re      KEVIN THOMAS KENNEDY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Capt E T Keane OAM RAN Rtd (Member) Dr K P Kennedy OBE (Member)

Date9 October 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

Decision No. 884/2000 ..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Disability Pension – Statement of Principles – Reasonable Hypothesis – Chronic Bronchitis and Emphysema – Whether Chronic Bronchitis and Emphysema causally related to service

Veterans' Entitlements Act 1986 – s9, s13, s120(1), s120(3), s120A(3), s196B

Repatriation Commission v Deledio (1998) 49 ALD 193
Davenport v Repatriation Commission [1997] FCA 918 (24 June 1997)
Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1

REASONS FOR DECISION

Mr K L Beddoe (Senior Member) Capt E T Keane OAM RAN Rtd (Member) Dr K P Kennedy OBE (Member)

The applicant seeks review of a decision made by the respondent on 14 March 1998 to refuse payment of a disability pension on the grounds that the veteran did not satisfy the Statement of Principles ("SoP") relevant to the claimed condition of Chronic Bronchitis and Emphysema. That decision was subsequently affirmed by the Veterans' Review Board ("VRB") on 17 July 1998 (T7). The applicant's claim in respect of bilateral sensori-neural hearing loss with tinnitus was accepted as war-caused with pension assessed by the VRB at 40% of the General Rate. It was noted before the Tribunal that the applicant did not wish to seek review of decisions relating to Contact Dermatitis, Eczema and Chronic Solar Skin Damage. The applicant says that the claimed condition arose out of operational service whilst serving on the HMAS Melbourne and HMAS Warramunga.
At the hearing Mr Payne appeared for the applicant and Mr Smith appeared for the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were put before the Tribunal as the T documents and further documents were tendered and marked as exhibits. The Tribunal heard oral evidence from the applicant.
The issue before the Tribunal in considering the applicant's entitlement to a disability pension is whether the applicant's Chronic Bronchitis and Emphysema are war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act"). A further issue before the Tribunal is whether pension for the accepted condition is correctly assessed at 40% of the General Rate of pension.
Section 13 of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease the Commonwealth is liable to pay a pension to the veteran.
For the purposes of this case a "war-caused disease" is defined in section 9 to mean:
"(1)…a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the…disease contracted by the veteran resulted from…

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 Kennedy and Repatriation Commission

Details

AGLC: Kennedy and Repatriation Commission [2000] AATA 884
Case: [2000] AATA 884
Decision Date: 9 October 2000

CaseChat Overview and Summary

In the case of Kennedy and Repatriation Commission, the primary focus was on determining whether the applicant's chronic bronchitis and emphysema were causally linked to his service, which would entitle him to a disability pension. The matter was heard by a tribunal under the Veterans' Entitlements Act 1986. The applicant argued that his conditions were reasonably connected to his military service, despite his pre-service smoking habit. The Repatriation Commission contested this, arguing that there was no connection between the applicant's smoking and his service, as the smoking habit predated his operational service.

The central legal issues revolved around the interpretation and application of the Veterans' Entitlements Act, particularly sections 120, 120A, and 196B. The tribunal had to ascertain if the applicant's circumstances met the criteria outlined in the relevant Statement of Principles (SoP) concerning chronic bronchitis and emphysema. This required a two-step process: first, determining if a reasonable hypothesis existed linking the service to the conditions, and second, verifying if the hypothesis satisfied the SoP criteria. The Federal Court's decision in Repatriation Commission v Deledio provided the framework for this analysis, emphasizing the need to align the hypothesis with the SoP template.

The tribunal found that while the applicant's smoking undoubtedly contributed to his chronic bronchitis and emphysema, the critical issue was whether this habit was linked to his service. The tribunal noted that the applicant's addiction began before his service, complicating the connection. However, the tribunal concluded that the hypothesis was reasonable if it fit within the SoP's template and was not fanciful or contrary to known scientific facts. After examining the material, the tribunal determined that the applicant's hypothesis was reasonable and consistent with the SoP, thus satisfying the first step of the legal test. The tribunal also found that it was not satisfied beyond reasonable doubt that the applicant's incapacity did not arise from his service, leading to a successful claim for the disability pension.

The tribunal ordered that the Repatriation Commission pay the applicant a disability pension, acknowledging the reasonable hypothesis linking his service to his chronic bronchitis and emphysema. This decision underscored the importance of aligning the applicant's circumstances with the criteria set forth in the relevant SoP, as mandated by the Veterans' Entitlements Act.

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

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Ratio Decidendi

Legal Principle Established

In terms of the applicant's reasonable hypothesis it was submitted by the respondent that there was no connection with the applicant's smoking habit and operational service as the applicant's addiction had commenced prior to his operational service.Consideration The Tribunal accepts that the applicant's smoking habit, however arising, has caused the applicant to suffer moderately severe chronic airflow limitation as well as a significant degree of emphysema (T4/45). However the difficulty before the Tribunal is whether the applicant's smoking habit which led to these conditions maybe connected to the applicant's operational service. Because of the operation of section 120A of the Act the hypothesis can only be accepted as a reasonable hypothesis if the applicant's circumstances fall within the criteria of the SoP relating to Chronic Bronchitis and Emphysema. The hypothesis will not be reasonable if it is obviously fanciful or untenable so that the claim must fail. The hypothesis will also not be reasonable if it fails the test of section 120A of the Act. The steps to be followed were set out by the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. There the Court discussed the authorities and following dicta of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1, and Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1, but taking into account the enactment of section 120A and related provisions, the Full Court set out the course which must be taken in cases where section 120A (on the facts of this case) operates to require that the reasonableness of the hypothesis is to be assessed by reference to a Statement of Principles made under section 196B of the Act. The Full Court said at 49 ALD 206:"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:1.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.2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11)……3.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 ss196B(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.4.The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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."