Lynch and Repatriation Commission - [2002] AATA 689

DECISION AND REASONS FOR DECISION [2002] AATA 689

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2002/22

VETERANS' APPEALS DIVISION       )
           Re      WILLIAM LESLIE LYNCH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date14 August 2002
PlaceHobart

Decision      The decision under review is affirmed.
  ..............................................
  Part-Time Member
CATCHWORDS
Veterans' Appeals - disability pension - general rate - impairment - lifestyle - peripheral vascular disease - ischaemic heart disease - hypertension - Statements of Principle (SoPs) - Guide to Assessment of Rates of Veterans' Pensions (GARP) - whether service related - Veterans' Review Board - special rate.
Legislation

Veterans' Entitlements Act 1986 – ss6, 120(1), 120(3), 120A.

Authorities

Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) FCA 391
Dixon v Repatriation Commission (1999) 29 AAR 235

REASONS FOR DECISION

14 August 2002 Associate Professor B W Davis AM (Part-time Member)

The Application

The applicant, William Leslie Lynch, seeks review of a decision made by a delegate of the Repatriation Commission on 16 January 2001, subsequently affirmed by a decision of the Veterans' Review Board (VRB) on 7 November 2001, which refused the applicant's claims to have peripheral vascular disease, ischaemic heart disease and hypertension accepted as due to service.
Standard of Proof
The applicant has operational service within the meaning of s6 of the Veterans' Entitlements Act 1986 ("the Act"), by virtue of service in the Far East Strategic Reserve for various periods in 1959, 1960 and 1961. The application for review is therefore to be decided in accordance with s120(1) and s120(3) of the Act. Because the application was lodged after June 1994, s120A will also apply.
Background
Mr Lynch helped on his parent's farm until he joined the Royal Australian Navy at the age of 18 and served for six years before going into the Reserve for a further 5 years. He subsequently was engaged in periodic work on fishing boats and driving taxis until 1984, when he commenced duties with the Association of Hobart Tugs until retirement in 1995. He has experienced some emotional and physical illness, involving drinking and heavy smoking habits, which he attributes to anxiety and depression arising from traumas during the peace-keeping mission in Malaysia in the early 1960's. There is no evidence his ship was ever attacked, nor is there clear evidence of any instances of danger, nonetheless he speaks of periods at action stations and deck guard duty at foreign ports which he perceived as "difficult places".
Facts and Contentions
The applicant seeks to have peripheral vascular disease, ischaemic heart disease and hypertension accepted as service related, principally because a smoking habit markedly increased during the applicant's period of operational service. The relevant Statements of Principles are claimed to be:

Peripheral vascular disease – No 87 of 1995
Ischaemic heart disease – No 38 of 1999
Hypertension – Nos 25 of 1999 and No 31 of 2001

The Respondent agrees with the standard of proof, but states that it is…

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 Lynch and Repatriation Commission

Details

AGLC: Lynch and Repatriation Commission [2002] AATA 689
Case: [2002] AATA 689
Decision Date: 14 August 2002

CaseChat Overview and Summary

In the case of Lynch and Repatriation Commission, the applicant, Mr. Lynch, sought to have his peripheral vascular disease, ischaemic heart disease, and hypertension accepted as service-related, primarily due to the marked increase in his smoking habit during his operational service in the Royal Australian Navy. The dispute was heard by the Administrative Appeals Tribunal (AAT), which had to determine if the claimed disabilities were related to the increased smoking caused by operational service. The Repatriation Commission and the Veterans' Review Board had previously rejected Mr. Lynch's claims, and he sought judicial review of these decisions.

The legal issues before the court involved determining the causal relationship between Mr. Lynch's claimed disabilities and his service in the Navy, specifically whether the increase in smoking was due to the stress of service. The court had to consider the Statements of Principle (SoPs) and the Guide to Assessment of Rates of Veterans' Pensions (GARP) in making its decision. The applicant argued that the increase in smoking was due to the stress of his service, while the Repatriation Commission contended that the increase in smoking was not service-related and that it was for the Tribunal to determine whether the claimed disabilities arose from or were caused by operational service.

The Tribunal found that the applicant's evidence was not credible and that there were significant discrepancies in his smoking statements. The Tribunal noted that Mr. Lynch had signed several smoking statements without perusing the content in detail, and that he had been badly advised in doing so. The Tribunal also found that the applicant had not taken any appeal action after receiving the Repatriation Commission decision of March 1998, rejecting his claims for service-related smoking. The Tribunal concluded that the applicant's claimed disabilities were not service-related, and that the Repatriation Commission and Veterans' Review Board decisions were correct. The Tribunal dismissed the application.

The Tribunal made no orders as the application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Mr Lynch helped on his parent's farm until he joined the Royal Australian Navy at the age of 18 and served for six years before going into the Reserve for a further 5 years. He subsequently was engaged in periodic work on fishing boats and driving taxis until 1984, when he commenced duties with the Association of Hobart Tugs until retirement in 1995. He has experienced some emotional and physical illness, involving drinking and heavy smoking habits, which he attributes to anxiety and depression arising from traumas during the peace-keeping mission in Malaysia in the early 1960's. There is no evidence his ship was ever attacked, nor is there clear evidence of any instances of danger, nonetheless he speaks of periods at action stations and deck guard duty at foreign ports which he perceived as "difficult places".Facts and Contentions The applicant seeks to have peripheral vascular disease, ischaemic heart disease and hypertension accepted as service related, principally because a smoking habit markedly increased during the applicant's period of operational service. The relevant Statements of Principles are claimed to be: The Respondent agrees with the standard of proof, but states that it is for the Tribunal to determine whether the claimed disabilities are smoking related and arise from or were caused by operational service.Hearing At the Tribunal hearing conducted in Hobart on 19 July 2002, the applicant was represented by Mr R M Webster and the respondent by Mr M A Castle. Mr Lynch was sworn and gave evidence about his service in the Royal Australian Navy from 1957 until 1963. He stated he had been a non-smoker and active sportsman, recruited at age 18, serving first at Cerberus Naval Deport, then on board HMAS Vendetta at commissioning and later overseas in New Zealand, Philippines, Singapore, Penang and Hong Kong. He had commenced smoking about 5 cigarettes per day, but this increased to 50 cigarettes per day or more in late 1959. The mood of the ship had changed, they were often at action stations for unexplained reasons and the ship was guarded in port, with deck patrols in which he participated. He obeyed orders, but felt stressed about perceived dangers. Mr Lynch drew attention to a smoking statement he had signed in February 1998, stating it had been filled in by an RSL colleague, but was actually incorrect. He did not know why he had signed it, but had been urged to do so. It stated that after entry into the Navy he had been smoking 20 cigarettes per day, and that in February 1959 this had increase to 80 plus cigarettes per day during to the stress of service in the Far East. He confessed he was not always accurate about dates or details. Counsel for the respondent queried discrepancies in a number of other smoking statements. Mr Lynch responded that he had been badly advised, but admitted that he had signed statements without perusing the content in detail. He refuted the notion that he took no appeal action after receiving the Repatriation Commission decision of March 1998, rejecting his claims for service related smoking. He had assumed further (unstated) action would follow. He had later approached Mr Dilba of the RSL, but had been "knocked back", so went elsewhere. A claim for review followed, but this was rejected by the Repatriation Commission on 16 January 2001 and again by the Veterans' Review Board in November 2001, so he had them appealed to the AAT.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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