Lynette Kay Humble and Repatriation Commission - [2016] AATA 123

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2015/1973
Veterans' Appeals Division  )
Re: Lynette Humble
Applicant

And: Repatriation Commission
Respondent
CORRIGENDUM TO DECISION
TRIBUNAL:   Egon Fice, Senior Member
DATE:            18 March 2016
PLACE:         Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

Delete the words this is the appropriate date on which this determination should come into effect in accordance with s. 20 of the VE Act at paragraph 80 of the decision and replace them with the appropriate date on which this determination should come into effect is 20 October 2013, in accordance with s 13, s. 20 and s177 of the VE Act.

.........................[sgd]........................
Humble and Repatriation Commission (Veterans’ entitlements) [2016] AATA 123 (2 March 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2015/1973

Re

Lynette Kay Humble

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal
Egon Fice, Senior Member

Date 2 March 2016

Place Melbourne
The decision under review dated 20 March 2015 is set aside and in substitution the Tribunal determines that the death of Mr Alan Humble was war-caused as that expression is defined in the Veterans' Entitlements Act 1986 (Cth).

[sgd]..................................................................
Egon Fice, Senior Member
VETERANS – entitlements – war widow’s pension – war caused condition – existence of reasonable hypothesis– sufficient ground for making determination - alcohol consumption - alcoholic cardiomyopathy
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 7, 8, 20, 120, 196B
Statement of Principles No. 85 (2015) (Cth)
Statement of Principles No. 23 (2007) (Cth)
Cases
Brennan v Comcare (1994) 50 FCR 555
East v Repatriation Commission (1997) 16 FCR 517
Grant v Repatriation Commission (1999) 57 ALD 1, 6
Miller v Minister of Pensions [1947] 2 All ER 372
Ogden Industries Pty Ltd v Lucas (1970) AC 113
Re Del and Repatriation Commission (1986) 5 AAR 253, 254 – 255
Rejfek v McElroy and Another (1965) 112 CLR 517, 521 – 522
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001] 110 FCR 321Repatriation Commission v Hill (2003) 69 ALD 581, 596
Repatriation Commission v Keely (2000) 98 FCR 108, 15
Secondary Materials
Australian Drug Foundation, What is a standard drink number 1.25 (2009) Drug info Of Health, The Australian Standard Drink (2012) Memorandum, Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth) 7-8.
Vardara D.R. (ed), Egan E.J., Taber’s Cyclopedic Medical Dictionary (F.A. Davis Company, 17^th ed, 1989)
REASONS FOR DECISION
Egon Fice, Senior Member

On 20 January 2014 Mrs Lynette Humble lodged a claim with the Department of Veterans’ Affairs for a widow’s pension on the grounds that the death of her husband, Mr Alan Humble, was service related. Mr Humble served in the Royal Australian Navy (RAN) from 16 January 1961 to 15 January 1970. He had operational service between 15 April and 8 May 1963 and between 10 May 1963 and 25 May 1963 when attached to the…

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: [2016] AATA 123
Decision Date: 2 March 2016

CaseChat Overview and Summary

The matter before the court involved Lynette Kay Humble, the widow of Mr. Humble, who was challenging a decision made by the Veterans’ Review Board (VRB) on 20 March 2015, which refused to grant her a widow’s pension. The dispute centred on whether Mr. Humble's death was related to his operational service, which would determine his eligibility for the pension under the relevant legislation. The Federal Court of Australia was tasked with reviewing the VRB's decision.

The primary legal issue that the court had to resolve was whether Mr. Humble's death was related to his operational service. This involved assessing the link between his excessive alcohol consumption, which was a known factor in his death, and his service in the Australian Defence Force during the Vietnam War. The court needed to determine whether Mr. Humble's alcohol consumption, which was likely above the threshold of 6.8 standard drinks per day, was sufficiently related to his service to warrant a finding that his death was war-caused. The court also had to consider the statutory provisions and applicable standards of proof.

The court concluded that there was a clear relationship between Mr. Humble's alcohol consumption and his operational service, as evidenced by the increased level of his drinking during his service period. The court found that Mr. Humble's excessive alcohol consumption, which led to his alcoholic cardiomyopathy and eventual death, was attributable to his service. This conclusion was sufficient to meet the statutory requirements for determining that his death was war-caused. Consequently, the court found that the VRB's decision to deny the widow’s pension was incorrect. The court set aside the VRB’s decision and determined that Mrs. Humble was eligible to receive the pension, with the effective date of the determination being 20 January 2014, the date she lodged the application.

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

The evidence in this case discloses a clear relationship between Mr Humble’s increased level of alcohol consumption and his operational service. While the extent of that consumption is, understandably, difficult to quantify with any precision, it is probable that it exceeded 6.8 standard drinks per day for either the 5 or 10 year period required by either SOP. In that case, I find that Mr Humble’s death was related to his operational service because his excessive alcohol consumption was attributable to that service. I am not able to conclude beyond reasonable doubt that there is no sufficient ground for determining that Mr Humble’s death was war-caused.Conclusion I have found that Mr Humble’s death was war-caused for the reason that his excessive alcohol consumption was related to the operational service Mr Humble had while serving on HMAS Hobart on the gun line in Vietnam. The development of his alcoholic cardiomyopathy was attributable to that service. I find that the decision made by the VRB on 20 March 2015 refusing to grant a widow’s pension to Mrs Humble was not the correct decision. I set aside that decision and in substitution determine that Mrs Humble is eligible to receive the widow’s pension. As Mrs Humble lodged application for the widow’s pension on 20 January 2014, this is the appropriate date on which this determination should come into effect in accordance with s. 20 of the VE Act.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2015/1973
Re	Lynette Kay Humble
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	2 March 2016
Place	Melbourne