Kruger and Repatriation Commission - [2000] AATA 641

DECISION AND REASONS FOR DECISION [2000] AATA 641

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/245

VETERANS' APPEALS DIVISION          )
           Re      BERYL KRUGER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

Date2 August 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS MBE
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements - widow pension – whether veteran's death war-caused – smoking history – reasonable satisfaction test – reasonable and definite inferences considered – lack of definite evidence supporting inferences raised
Veterans' Entitlements Act 1986 s.120
Statement of Principles No. 68 of 1997
Statement of Principles No. 10 of 1998
Luxton v Vines (1952) 85 CLR 352
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Tuite (1993) 29 ALD 609
Re Charlton and Repatriation Commission (AAT 10642, 28 December 1995)
Repatriation Commission v Edwards (Unreported Federal Court, G250/93, 3 September 1993)

REASONS FOR DECISION

2 August 2000 Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

This is an application by Mrs Beryl Kruger (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 28 January 1999 (T2) which affirmed a decision of a delegate of the respondent dated 20 February 1998 (T7) which determined that the death of Mr Ross William Kruger (the veteran) was not war-caused.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), together with seven exhibits, six lodged by the applicant (Exhibits A1-A6) and one lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant, who also called Mrs R. Threfall and Mr J. Mullens. The respondent called as a witness Dr M. Guerin, former Departmental Medical Officer. The applicant was represented by Ms E. Reed, of counsel, and the respondent was represented by Mr G. Doube, departmental advocate.
The issue before the Tribunal is whether or not the veteran's smoking history is related to his war service.
history of the application
The veteran served in the Militia of the Australian Army from 19 March 1941 to 16 June 1941 and from 28 July 1941 to 28 February 1946 in the AIF, constituting eligible, but not operational, war service. The veteran died on 17 August 1987 from carcinomatosis and cancer of the stomach.
The respondent rejected the applicant's claim on 20 February 1998 (T7) on the basis that the veteran's death was not service related. This decision was affirmed by the VRB upon review dated 28 January 1999 (T2).
The relevant Statement of Principles (SoP) is No. 68 of 1997 as amended by No. 10 of 1998 concerning malignant neoplasm of the stomach. Clause 5(a) of the SoP was not in dispute, leaving the question before the Tribunal as to whether clause 4 is satisfied. Clause 4 of the SoP requires that one of the factors in clause 5…

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 Kruger and Repatriation Commission

Details

AGLC: Kruger and Repatriation Commission [2000] AATA 641
Case: [2000] AATA 641
Decision Date: 2 August 2000

CaseChat Overview and Summary

The case of Kruger and Repatriation Commission involves the applicant, who is seeking a widow's pension based on the war service of her late husband, the veteran. The crux of the dispute is whether the veteran's death from a malignant neoplasm of the stomach was war-caused, specifically if his smoking habit, which predated the clinical onset of his illness, can be linked to his war service. The matter was heard by the Federal Court of Australia.

The central legal issue before the court was whether the applicant could satisfy the Tribunal that the veteran's smoking history of at least 20 pack years prior to the onset of his illness was related to his war service. This hinges on the interpretation of the relevant Statement of Principles (SoP) No. 68 of 1997 as amended by No. 10 of 1998, which necessitates that one of the factors in clause 5 be related to the veteran's war service. The court had to determine if the evidence presented met the standard of proof required under sub-section 120(4) of the Veterans' Entitlements Act 1986, which requires the Tribunal to be reasonably satisfied on the balance of probabilities that the veteran's smoking habit was related to his war service.

The court examined the evidence provided by the applicant, including her testimony regarding the veteran's smoking habits and the stress factors that may have contributed to his smoking. The court found that while the applicant's evidence suggested that the veteran smoked heavily and that he may have increased his smoking due to stress from the war and other events, there was insufficient evidence to support a definite inference that the smoking was directly related to his war service. The court held that the evidence did not reach the required threshold of reasonable satisfaction. Consequently, the application for a widow's pension based on war-caused death was dismissed.

The court ordered that the application for a widow's pension be dismissed, with no orders for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant Statement of Principles (SoP) is No. 68 of 1997 as amended by No. 10 of 1998 concerning malignant neoplasm of the stomach. Clause 5(a) of the SoP was not in dispute, leaving the question before the Tribunal as to whether clause 4 is satisfied. Clause 4 of the SoP requires that one of the factors in clause 5 be related to the veteran's war service. The standard of proof is that in sub-section 120(4) of the Veterans' Entitlements Act 1986, namely, that the Tribunal must be reasonably satisfied (ie on the balance of probabilities) that the veteran's smoking history of at least 20 pack years prior to the clinical onset of malignant neoplasm of the stomach is related to his war service.applicant's evidence The applicant told the Tribunal that she grew up at Mypolonga, in the same community as the veteran, who was some six years and ten months older than her. She stated that she does not know if the veteran smoked prior to his service as she was only 15 years old at the time he left for the war, and she took no notice of whether he smoked or not, as she would only see him at weekends. She considered however, that there were not many cigarettes around in those days for young people, and that the young lads did not have the money to buy cigarettes prior to service. She agreed that she does not know when or where the veteran commenced smoking, but that she knew that he smoked when he came home on leave breaks. She could recall that the veteran smoked during his Army leave breaks and smoked a lot of cigarettes upon his return from the Army. She stated that it was hard to adjust to that type of lifestyle, and that the veteran would smoke a packet of 20 cigarettes per day. She stated that she married the veteran in June 1946 whereupon they lived with her parents, and later on their own farm, which constituted land obtained with assistance from both his and her parents. She told the Tribunal that she would order three packets of Ready Rubb tobacco per week, and that there were approximately sixty cigarettes to be made from each packet. She further stated that the veteran would occasionally have tailor made cigarettes on weekends. She maintained this same order for many years, until they eventually moved to Murray Bridge. On the basis of what the veteran told her over the years, she considered that he was stressed by going away to war, leaving home and further because he had to drive in very rough conditions, transporting goods through the Northern Territory and Queensland. She stated that following the 1956 flood, they had to return to her parent's farm for 12 months whilst their farm recovered, and that the veteran increased his smoking as a result of stress due to the flood. She told the Tribunal that the veteran never reduced his smoking intake and that he would have underestimated his smoking to doctors, because he hated being criticised for his smoking habit. She stated that in this regard, he would clean his fingers before visiting doctors to try to remove the nicotine stains, did not like being called "tobacco mouth", and that doctors used to "howl him down" about his smoking.mrs r. threfall

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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