MacDonald and Repatriation Commission - [2001] AATA 768

DECISION AND REASONS FOR DECISION [2001] AATA 768

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/705

VETERANS' APPEALS DIVISION          )
           Re      ELSA MAY MACDONALD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr IR Way, Member

Date7 September 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the death of the veteran, Ian Macdonald, was war-caused and that the applicant, Elsa May Macdonald is entitled to receive a war widow's pension with effect from 12 December 1998.

(Sgd) I R WAY
MEMBER
CATCHWORDS
VETERANS' AFFAIRS – whether reasonable hypothesis – service related drinking habit

Veterans' Entitlements Act 1986 ss 5(b), 6(a), 8, 119, 120, 120A

Bull v Repatriation Commission [2001] FCA 823
Repatriation Commission v Deledio (1998) 83 FCR 82
Dixon v Repatriation Commission (1999) 29 AAR 235
Byrnes v Repatriation Commission (1993) 30 ALD 1

REASONS FOR DECISION

7 September 2001 Mr IR Way, Member

This is an application by Elsa May Macdonald (the applicant) for review of a decision of the Veterans' Review Board dated 29 May 2000, affirming a decision of the Repatriation Commission (the respondent) dated 21 April 1999 which refused the applicant's claim that the death of her late husband, Ian Macdonald (the veteran), was related to his war service.
The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6), and the following documents:
For the applicant

Exhibit A1 Statement of the applicant dated 22 January 2000
Exhibit A2 Statement of the applicant dated 15 March 2001
Exhibit A3 Medical opinion of Dr P Grant dated 15 February 2001

For the respondent

Exhibit R1 Alcohol Questionnaire dated 2 March 1999
Exhibit R2 Veteran's Record of Service
Exhibit R3 Respondent's Guidelines – Smoking and Alcohol-related Conditions

The applicant gave oral evidence.

The applicant is the widow of the veteran who rendered operational service as defined in Sections 5(b) and 6(a) of the Veterans' Entitlements Act 1986 (the Act), namely, continuous full-time service outside Australia during World War II.
Mr Macdonald rendered operational service as he served with the Royal Australian Air Force (RAAF) including service outside Australia from 25 May 1941 to 19 October 1945.
Under Section 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of a veteran was war-caused. A dependant of a deceased veteran, including a widow (Section 11) may make a claim to receive a pension under Section 14.
The veteran was born on 21 January 1917 and died, at age 78, on 10 April 1995, the cause of death being certified as:
(a) Aspiration pneumonia; and
(b) Cerebrovascular accident.
It is the applicant's hypothesis that the veteran developed a drinking habit as a result of his war service and that this service-induced drinking habit contributed in whole or in part to his drinking habit post-war, this contributing to his death.
Legislative framework
The question whether the death…

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 MacDonald and Repatriation Commission

Details

AGLC: MacDonald and Repatriation Commission [2001] AATA 768
Case: [2001] AATA 768
Decision Date: 7 September 2001

CaseChat Overview and Summary

The case of MacDonald and Repatriation Commission involved the widow of a deceased veteran who sought to establish that her husband's death was related to his service in the Royal Australian Air Force (RAAF). The central dispute revolved around whether the veteran's cerebrovascular accident and subsequent death could be linked to his regular alcohol consumption, which he began during his military service. This connection was critical under the Veterans' Entitlements Act 1986, which required the establishment of a reasonable hypothesis linking the veteran's service to his condition.

The primary legal issues addressed by the court included whether the veteran's drinking habit was service-related and whether this habit could be connected to his cerebrovascular accident. The court had to determine if the veteran's alcohol consumption, as described by his widow, constituted a reasonable hypothesis under the relevant Statement of Principles (SOP). This required the court to consider whether the hypothesis was consistent with the factors outlined in the SOP and whether it was reasonable to conclude that the veteran's alcohol consumption was related to his military service.

The court found that the evidence presented by the widow, including her testimony about the veteran's drinking habits and the circumstances of his service, supported the hypothesis that the veteran's death resulted from a cerebrovascular accident connected to his regular alcohol consumption. The court considered the veteran's entry records, which indicated he was a moderate drinker at the time of enlistment, and the lack of any contradictory evidence. The court concluded that the hypothesis was consistent with the relevant factors in the SOP and thus reasonable. Consequently, the court found that the veteran's cerebrovascular accident was service-related, and the claim for entitlement was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The SOP defines alcohol contained within alcoholic drinks as that measured by the alcohol consumption utilising the Australian standard of 10 g of alcohol per standard alcoholic drink. Applicant's evidence It was the applicant's evidence that she met her husband in July 1940 on Kynuna Station in north-west Queensland and that they were married on 11 April 1942. She said she met her husband-to-be when she was employed as a Governess and he was employed as an Overseer (Trainee Manager) on Kynuna Station, about four miles from the township of Kynuna. She said that she saw him every day while he was working at Kynuna and that she "didn't see him drink ever". However, she qualified this to say that he drank occasionally at social events and to her recollection this consisted of two Balls in the Kynuna township. She said there was no alcohol on the station, no hotels in the town and access to the township was limited by a lack of vehicles. She said the veteran enlisted in the RAAF in May 1941 and that after his training he served at Horn Island and was later posted to Morotai Island where he remained until the end of the war, serving as a Wireless Operator/Air Gunner. The applicant stated that the veteran was a quiet man who did not generally discuss with her how he felt about his war service or any dangers he faced. She could recall that he told her of one incident where the veteran stated that they had been lucky to survive after one bombing raid when his plane had been damaged (she thought from gunfire from enemy ships). It was the applicant's evidence that when the veteran returned from the war there was some change in him, he was very unsettled for some twelve months and that at this stage he drank regularly. She said he drank on a daily basis after work, initially at hotels and later mainly at home. She said that up until the mid-1970s the veteran drank beer with a daily intake of at least six glasses. However, after the mid-1970s, his drinking habit was modified. The applicant admitted to some confusion in her mind and inconsistency in her two statements about the quantities of alcohol consumed by her husband after the mid-1970s, because she was not familiar with how much a glass held nor was she familiar with what she described as "the new weights and measures". In her oral evidence the applicant clarified the veteran's drinking habit as being three to four glasses of sherry in the evening, up to two glasses of sherry at mid-day and, in addition, consumption of other alcoholic drinks on offer at social occasions. The applicant, in Exhibit R1, stated that the veteran started to drink alcohol on a regular basis to relieve stress during training and when in action as a Wireless Operator/Air Gunner and that thereafter he never stopped consuming alcohol. The Tribunal notes that the RAAF entry examination of the veteran on 30 September 1940 (T4/3) records under Alcohol Habit "moderate" and that the veteran was "fit for air crew". The Tribunal also notes that there is no dispute between the parties that the veteran first suffered a clinical onset of cerebrovascular accident on 23 December 1984 (T4/26).Submissions

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was submitted that the veteran did not satisfy the Department's Guidelines in that, on the applicant's evidence, the veteran commenced drinking during his training, before his period of overseas service and related stressful events. It was further submitted that the contemporaneous records showed that the veteran was a moderate drinker on entry to the RAAF and that the Tribunal, after consideration of all the material before it, should find the hypotheses raised by the applicant to be "too tenuous" to be a reasonable hypothesis.Consideration The Tribunal is satisfied that the material before it points to an hypothesis as raised by the applicant, namely, that the veteran's death resulted from a cerebrovascular accident which was connected to the veteran's regular consumption of alcohol and that this consumption of alcohol could be connected with the circumstances of the veterans' relevant service. There is no dispute between the parties, and the Tribunal finds accordingly, that the relevant SOP in this matter is Instrument No. 7 of 1999 and that within this SOP the relevant factor is Factor 5(e), namely, "regularly consumed an average of 250g per week of alcohol (contained within alcoholic drinks) for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident." In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 the Full Court said:"3.If an SoP is in force the Tribunal must then form the opinion whether a hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." As stated in Dixon v Repatriation Commission (1999) 29 AAR 235, with respect to steps 3 and 4 outlined in paragraph 31 above, Wilcox J said:"24. ….. In the present case the Tribunal fused together steps 3 and 4. It should have resolved step 3 by determining whether the claims made in the material before it satisfied the factor requirements of the Statement of Principles relating to generalised anxiety disorder, that is, still considering them as claims and without making any judgment about their truth. If the AAT had answered this question in the affirmative, the final step would have been to consider the truth of the claims, this being a step in carrying out the obligation imposed on the Tribunal by s 120(1) of the Act to decide whether it is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused. If the Tribunal had been satisfied beyond reasonable doubt that Mr Dixon did not undergo the experiences he claimed, or that any experiences he did undergo did not cause the generalised anxiety disorder he claimed to suffer, this would have been a proper basis for achieving the satisfaction mentioned in s 120(1) and dismissing his appeal.25. The question whether a decision maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision maker will rule against a claimant simply because he or she is not persuaded the claimant's story is probably true. Although the decision maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision maker is likely to reject the application even though he or she thinks the claimant's story may possibly be true. This would defeat the protection for veterans embodied in s 120(1), whereby a claim which fits the factors in the relevant Statement of Principles must be accepted unless the decision maker is satisfied, beyond reasonable doubt, that it is without justification."