Luckwald and Repatriation Commission
[2004] AATA 714
•9 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 714
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/797
VETERANS’ APPEALS DIVISION )
Re NORMA LUCKWALD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Member Date6 July 2004
Place Brisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd].......................
MJ Carstairs
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/797
VETERANS’ APPEALS DIVISION )
Re NORMA LUCKWALD Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM
Tribunal
Ms M J Carstairs, Member
Date
9 July 2004
PlaceBrisbane
In the decision of the Tribunal in the above matter which was handed down on 6 July 2004, page 8 should read:
“Solicitor for the applicant: Mr Glen Mylne”
and not “Ms Schar” as stated
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether death of veteran causally related to his war service – death from ischaemic heart disease – veteran rendered three days eligible war service as a mariner – hypothesis raised that veteran commenced smoking during his eligible war service – insufficient evidence that smoking developed during service – hypothesis not reasonable – decision affirmed
Veterans’ Entitlements Act 1986
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Gorton (2001) 110 FCR 321REASONS FOR DECISION
6 July 2004 Ms M J Carstairs, Member 1. This is an application by Norma Luckwald (the applicant) or review of a decision made by the Veterans’ Review Board on 8 September 2003 affirming a decision of the Repatriation Commission (the respondent) rejecting the applicant’s claim to have her husband’s death attributed to service.
2. At the request of the applicant’s solicitors, McCallum Mylne Lawyers, the matter was heard on the papers.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well the applicant’s and respondent’s Statements of Facts and Contentions, a written statement signed by the applicant on 31 March 2004, a faxed copy of the applicant’s husband’s merchant seaman record, as well as a transcript of the first hearing by the VRB dated 20 May 2003.
BACKGROUND
4. The applicant was born on 2 September 1926. She married her husband, Cecil William Luckwald, on 28 June 1947. Her husband died on 28 February 1997, at the age of seventy three. The causes of death recorded on the death certificate were:
1. myocardial ischaemia
2. predisposition to ventricular fibrillation.
5. The duration of the first of these was recorded as “acute”, and of the second, “7 years”. The applicant made a claim on 23 October 2003 to have her husband’s death attributed to war service.
EVIDENCE
6. In a written statement dated 31 March 2004, the applicant said that she believed that her husband’s death was caused by a smoking habit developed during periods of service. She said that his service included a period when he travelled overseas as a merchant mariner to Ceylon and India, in addition to a period of three days in a trip between Melbourne and Adelaide which has been accepted by the respondent as service as a mariner.
7. The applicant said that her husband spoke little of his time as a mariner, but she said that he had said that his journey overseas was frightening and he felt in danger. She said that her husband was often tense and was a worrier who suffered from hypertension during his life. She said that her husband did not smoke before he joined the merchant marine. The applicant had completed a smoking questionnaire (T4, p17-18) in which the date November 1944 was recorded in relation to a question about the commencement of smoking. The Tribunal also took into account the applicant’s evidence to the VRB.
8. Extracts of the applicant’s husband’s passport showed an entry dated 19 July 1944 referring to proceeding “to Ceylon and India for the purpose of attending stock for Wm A Jones Pty Ltd”.
9. In a letter dated 11 July 2003 (T docs p31), Mr J Straczek, naval historian referred to the records for Australian merchant seamen and said that the only record for the applicant’s husband was his service on the SS MINNIP from 21 to 23 November 1944. He referred also his passage on the SS MULBERA from Ceylon, departing in August 1944 and arriving in Melbourne in September 1944. The incoming passenger list stated that he travelled as a second class passenger and his occupation was as a cattle attendant. In a computer record dated 30 March 2004, Mr D Bell, with Access and Information Services at the National Archives of Australia confirmed that there were no other records that the applicant served with the Australian merchant marine.
CONSIDERATION OF THE ISSUES
10. The first question that the Tribunal must address is that of the nature and duration of service. On this issue the applicant submitted that there was, in addition to three days eligible service in November 1944, a period of operational service as an Australian mariner arising from his travel to Ceylon and India during July and August 1944. It was submitted that, even though the applicant’s return voyage was as a passenger, it might be the case that he was engaged as part of the war effort in transporting cattle to Australian forces in Ceylon. It was additionally submitted that it was highly unlikely that Mr Luckwald travelled to India and Ceylon as a private passenger during wartime. On this basis it was submitted that this service was as an Australian mariner and was operational service within the meaning of the s6B(1) of Veterans’ Entitlements Act 1986 (the Act). It was submitted that the applicant’s husband was exposed to danger and stresses during the voyage.
11. The respondent submitted that, the evidence concerning the travel to Ceylon and India indicated that the applicant’s husband was an employee of Wm Jones Pty Ltd and this was supported by his return to Australia as a 2nd class passenger assigned to a private cabin. The respondent submitted that there was no evidence to show when the smoking habit commenced, except that he was not smoking before he “went to sea” and was smoking on his return. The respondent contended that Mr Luckwald did not experience any danger aboard the SS Minnipa nor experience conditions that may have led to a smoking habit.
12. The parties agree that the applicant’s husband had three day’s service as a mariner in November 1944, as confirmed by Department of Defence records that he served in the SS Minnipa from 21 to 23 November 1944 on a voyage from Melbourne to Adelaide. The Tribunal finds that the applicant has service as a mariner on those dates, because this comes within 5C(a) of the Act which includes in the definition of Australian mariner a person who was:
“A master officer or seaman employed under agreement…in sea going service on a ship registered in Australia that was engaged in trading between a port in a State or Territory and any other port”
13. In regard to the period travelling to and from India and Ceylon in July and August 1944, all relevant investigations have been carried out in the course of the review of the decision on the claim. The Tribunal is reasonably satisfied, based on the records from the Australian Archives and the Department of Defence that this travel was not as an Australian mariner. The Tribunal was satisfied that the applicant’s husband was working in private employment, as confirmed by his return voyage travel as a passenger.
14. Section 5C(5) provides that the employment as a mariner on a ship going from one place in Australia to another place in Australian is taken as employment within Australia for the whole of the voyage. The Tribunal is satisfied that the travel from Melbourne to Adelaide was within Australia and it follows from this that it is eligible war service within the meaning of s7(1)(e)(ii). Section 5C defines veteran as including a person who has rendered eligible war service within the meaning of s7 of the Act.
15. Section 8(1) of the Act, insofar as relevantly raised here, provides:
“Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;”
16. For claims made after 1994, it is necessary to apply any relevant SoP. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant's condition and his or her service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant's service (s120B(3)(b)). The relationship to service must be one of the relationships prescribed in s196B(14) of the Act:
“A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or…”
17. The Tribunal took into account the decision of the Federal Court in Repatriation Commissionv Hancock [2003] FCA 711. The Tribunal must first determine on the balance of probabilities what kind of death the veteran suffered. This was not disputed and the Tribunal finds that the death was due to ischaemic heart disease. The Tribunal is first required to ascertain the relevant SoPs in force. The applicable SoP for ischaemic heart disease is Nº 54 of 2004 (as amended by Nº 10 of 2004), which replaced Nº 38 of1999 which was in force at the time of the primary decision. The Tribunal must apply the SoP in force at the time of the Tribunal’s decision; unless the current SoP does not uphold the connection, in which case the applicant may argue an accrued right to consideration under an earlier SoP in force at the time of the respondent’s (primary) decision (Repatriation Commission v Gorton (2001) 110 FCR 321).
18. The applicant relied on the factor 5(e) within the SoP for ischaemic heart disease as the bases of her claim, namely that, on the balance of probabilities, the factor connected with the circumstances of a person’s relevant service was:
“where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i) smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within three years of cessation; or
(ii) smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 5 years of cessation;”
19. The respondent conceded that the applicant’s husband would have satisfied the quantities of cigarettes referred to in the SoP based upon the smoking questionnaire (T-docs p17-18) which showed consumption in excess of 30 cigarettes per day. The Tribunal accepts the correctness of that concession. The evidence however is very unclear concerning when smoking may have commenced. The applicant had indicated in the questionnaire that smoking commenced in November 1944. In her evidence to the VRB she said that he was smoking heavily when he returned from sea in 1944 and that she did not recall him smoking in 1943. The applicant was eighteen years old in 1944 and, in the transcript from the VRB hearing, clearly she was doing her best to recall events from a long time ago. It was not clear from her evidence exactly when her husband may have started smoking in 1944.
20. The evidence taken as a whole does not point to the necessary connection between smoking and the veteran’s service. The period of three days in service in Australian waters in 1944 when there was no danger from the enemy does not raise the necessary connection. Even if it were clear on the evidence now available, which it is not, that there was a temporal connection between the commencement of smoking and the period as a mariner, the legislation requires that there be more than a temporal connection. There is only speculation of any connection in this case, and it is insufficient to point to any connection of smoking with service. For these reasons and essential element of the factor in the SoP is not pointed to by the evidence and thus the claim fails.
DECISION
21. The Tribunal affirms the decision under review.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Member
Signed: Sarah Oliver
AssociateThe Matter was Heard on the Papers
Date of Decision 6 July 2004Solicitor for the Applicant Ms Schar, McCallum Mylne Lawyers
For the Respondent Mr Kelly, Departmental Advocate
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