Lin Yin Mossman and Repatriation Commission - [2015] AATA 346

[2015] AATA 346

Division VETERANS' APPEALS DIVISION

File Number

2014/3348

Re

Lin Yin Mossman

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President I R Molloy

Date 21 May 2015

Place Brisbane
The decision under review is set aside and in substitution there is a finding that Barry Mossman's death on 19 September 1993 was war-caused. The date of effect is 22 April 2013.

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Deputy President I R Molloy
CATCHWORDS
VETERANS’ AFFAIRS - War widow's pension – Whether death war-caused – Whether tobacco consumption related to service – Reasonable hypothesis connecting death with service –- Hypothesis considered reasonable - Ischaemic heart disease – Decision set aside and substituted
LEGISLATION
Veterans’ Entitlements Act1986 (Cth)
Statement of Principles concerning Ischaemic Heart Disease, No. 89 of 2007
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Cornelius [2002] FCA 750
Kaluza v Repatriation Commission (2011) 280 ALR 621
Kattenberg v Repatriation Commission (2002) 73 ALD 365
REASONS FOR DECISION
Deputy President I R Molloy
21 May 2015

This is an application by Lin Yin Mossman for review of a decision of the Repatriation Commission (“the Commission”) dated 28 August 2013, affirmed by the Veterans’ Review Board on 6 June 2014.
The decision was to reject Mrs Mossman’s claim that the death of her husband, Barry Mossman (“the veteran”), who died on 19 September 1993, aged 51 years, was war-caused within the meaning of s 8 of the Veterans’ Entitlements Act1986 (Cth) (“the Act”).
It is not disputed that the deceased was a veteran and that he rendered service in the Australian Army from 24 May 1960 to 1 June 1980, including operational service in Malaya and Borneo from 9 April 1963 to 18 July 1965, and in Vietnam from 7 May 1970 to 5 May 1971.
The claim is that the veteran’s death was a result of a smoking habit attributable to his service in Vietnam. The claim is that the veteran’s cigarette consumption escalated significantly during his time in Vietnam and remained at that level for the rest of his life.
Evidence was given by Mrs Mossman and the deceased’s son, David Charles Mossman, both of whom were cross-examined. Evidence by way of a written report, dated 26 January 2015, was provided by a consultant historian, Dr Albert Palazzo.[1]
1 Exhibit 4.
BACKGROUND
Mrs Mossman said she met the veteran in 1963 or 1964 in Malacca where she was working in a bank. They married on 17 April 1965.
In 1966 the veteran was transferred to Sydney, and they lived at Holdsworthy. The veteran was transferred back to Malaysia and then back to Australia, this time to Melbourne.
There was evidence from Mrs Mossman that when she met the veteran he smoked no more than one or two cigarettes a day. She said he drank beer at the Sergeants’ Mess every week.
She said she hated his smoking, and also his drinking, and made her feelings known. In…

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: [2015] AATA 346
Decision Date: 21 May 2015

CaseChat Overview and Summary

Lin Yin Mossman, the widow of Barry Mossman, sought a war widow's pension from the Repatriation Commission, contending that her husband's death was war-caused. The dispute centred on whether Barry Mossman's ischaemic heart disease, which led to his death, was related to his service in the military, specifically his time in Vietnam. The matter was heard in the Administrative Appeals Tribunal (AAT). The primary legal issue before the AAT was whether the veteran's death was war-caused under the statutory provisions of the Veterans’ Entitlements Act 1986 (Cth), specifically section 13(1). This required the tribunal to determine if there was a reasonable hypothesis linking Barry Mossman's ischaemic heart disease to his service in Vietnam.

In reaching its decision, the AAT considered the evidence provided by Mrs Mossman and her son, David Charles Mossman, as well as the report by the consultant historian, Dr Albert Palazzo. Mrs Mossman testified that her husband's smoking and drinking habits significantly increased after his return from Vietnam, and he attributed his smoking to a coping mechanism for stress during his service. The AAT found that Mrs Mossman's testimony about her husband's changed habits post-Vietnam was credible. The tribunal also accepted Dr Palazzo's report that the veteran's service involved physically exhausting environments and the realities of war, which could contribute to stress and unhealthy habits such as smoking. The AAT concluded that there was a reasonable hypothesis that the veteran's ischaemic heart disease was related to his service in Vietnam, and thus, his death was war-caused. Consequently, the decision of the Repatriation Commission was set aside, and a war widow's pension was awarded to Mrs Mossman.

Orders

Orders of the court

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Background

Background to the litigation

Evidence was given by Mrs Mossman and the deceased’s son, David Charles Mossman, both of whom were cross-examined. Evidence by way of a written report, dated 26 January 2015, was provided by a consultant historian, Dr Albert Palazzo.[1] 1 Exhibit 4. BACKGROUND Mrs Mossman said she met the veteran in 1963 or 1964 in Malacca where she was working in a bank. They married on 17 April 1965. In 1966 the veteran was transferred to Sydney, and they lived at Holdsworthy. The veteran was transferred back to Malaysia and then back to Australia, this time to Melbourne. There was evidence from Mrs Mossman that when she met the veteran he smoked no more than one or two cigarettes a day. She said he drank beer at the Sergeants’ Mess every week. She said she hated his smoking, and also his drinking, and made her feelings known. In oral evidence Mrs Mossman said that in the five to six months before the veteran went to Vietnam he gave up smoking. Mrs Mossman said that on his return from Vietnam her husband was smoking, and drinking, in excess of what she had previously known. In particular, his consumption of cigarettes was between two and four packets a day. She said that if, when she had met him, the veteran had been smoking and drinking as heavily as when he returned from Vietnam, she would never have married him. She also said that on his return from Vietnam he was very quiet. He did not talk about Vietnam and did not like her asking about it. Mrs Mossman said they would argue over how much he drank and smoked after his return from Vietnam. She said she did not know exactly how much the veteran was drinking. He did most of his drinking at the Sergeants’ Mess. Mrs Mossman said that the veteran stopped drinking when he left the Army. However he remained a heavy smoker for the rest of his life. David Mossman was 24 years of age and living at home when his father died in 1993. The family lived in Brisbane where in civilian life the veteran had a milk run and subsequently a juice run. David Mossman, who was not himself a smoker, estimated his father smoked a pack to a pack and a half of cigarettes every day. He said: I remember going on juice runs with [him] and he would consistently smoke on these occasions. He never tried to give up smoking. It was a constant habit with him. …My father told me that smoking was the only [way] he could settle his nerves when he was in the jungles of Vietnam. He would describe how difficult it was to fall asleep in the jungle because you never knew what might happen. In his report Dr Pallazo, referring to the veteran’s service in Vietnam, offered the opinion that the veteran:did what gunners do, support friendly troops and kill enemy troops with artillery fire. During these operations, he worked in physically exhausting environments while enduring the realities of war that all soldiers face. [2]2 Exhibit 4, folio 7.STATUTORY PROVISIONS Section 13(1) of the Act renders the Commonwealth liable to pay pensions by way of compensation to the dependants of a veteran where the death of the veteran was war-caused.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am not so satisfied and consequently the claim must succeed. CONCLUSION The decision under review is set aside and in substitution there is a finding that Barry Mossman’s death on 19 September 1993 was war-caused. The date of effect of this decision is 22 April 2013.[13][13] s 20(1) Veterans’ Entitlements Act 1986 (Cth).

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2014/3348
Re	Lin Yin Mossman
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President I R Molloy
Date	21 May 2015
Place	Brisbane