Manwaring and Repatriation Commission (Veterans' entitlements) - [2018] AATA 88

Manwaring and Repatriation Commission (Veterans' entitlements) [2018] AATA 88 (30 January 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/2069
Re:Satsuko Manwaring
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:30 January 2018
Place:Brisbane

The Tribunal affirms the decision under review.
.............................[SGD]...........................................
Deputy President J Sosso
CATCHWORDS
VETERANS AFFAIRS – war widow’s pension – whether death of veteran was war caused – prostate cancer – claim that veteran’s service led to change in diet and to continuing high animal fat intake – relevant service – no evidence linking increased intake to operational service – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning Malignant Neoplasm of the Prostate No. 53 of 2014
CASES
Starcevich v Repatriation Commission (1987) 76 ALR 449
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Deledio (1998) 83 FCR 82
Hill v Repatriation Commission (2005) 85 ALD 1
Dunlop v Repatriation Commission [2003] FCAFC 201
Collins v Repatriation Commission [2009] 177 FCR 280
Repatriation Commission v Codd [2007] 85 ALD 619
Bushell v Repatriation Commission (1992) 175 CLR 408
McLean v Repatriation Commission [2001] FCA 243
Repatriation Commission v Hill (2002) 69 ALD 581
Ellis v Repatriation Commission (2014) 142 ALD 352
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Dunn [2006] FCA 1703
Mason and Repatriation Commission [2003] AATA 931
King v Repatriation Commission [2011] FCA 1436
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION
Deputy President J Sosso
30 January 2018
INTRODUCTION

Mrs Satsuko Manwaring (the Applicant) seeks a review of a decision of the Veterans’ Review Board of 8 February 2017 which determined that the death of her husband, Mr William Manwaring (the veteran), was not related to his war service and that, accordingly, a war widow’s pension was not payable – Exhibit 1 T15 pp. 125 – 128. The Board upheld a decision of the Repatriation Commission (the Respondent) dated 4 July 2016 – Exhibit 1 T12 pp. 107-109.
Pursuant to s 13 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) the Applicant is eligible to receive the war widow’s pension if the veteran died as a result of eligible war service. Section 8 of the Act prescribes what is a “war-caused death”. Relevantly, s 8 provides that the death of a veteran is taken to be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran” – s 8(1)(b).
The veteran was born in August 1921 in Gladstone, Queensland – Exhibit 1 T9 p. 83, T3 p. 11. He was the eldest of three sons, and his father passed away during World War II – Exhibit 1 T4 p. 23. Prior to enlisting on 7 January 1942, he was a labourer – Exhibit 1 T3 p. 11. The veteran served…

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: [2018] AATA 88
Decision Date: 30 January 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, the war widow of a deceased veteran, against a decision of the Repatriation Commission regarding her entitlement to a war widow's pension. The central dispute was whether the veteran's death from prostate cancer was "war-caused" within the meaning of the relevant legislation. The Administrative Appeals Tribunal (AAT) made its determination on the papers, without a formal hearing, in accordance with section 34J of the Administrative Appeals Tribunal Act 1975 (Cth).

The legal issues before the Tribunal were to determine whether the veteran's death from prostate cancer was war-caused, and consequently, whether the applicant was entitled to a war widow's pension. This required the Tribunal to consider the "kind of death" suffered by the veteran and to assess the causal connection, if any, between his World War II service and his subsequent death from prostate cancer, applying the principles established in cases such as *Collins v Repatriation Commission* and *Repatriation Commission v Codd*.

The Tribunal's reasoning focused on the lack of evidence to establish a link between the veteran's service and his death. Despite the applicant's assertions about the veteran's diet, there was no direct evidence from the veteran himself regarding his dietary habits before, during, or after his service. The applicant, who married the veteran after his service, could not provide first-hand evidence of his early dietary patterns. While a dietitian provided an analysis of the veteran's post-war diet, the Tribunal found that the evidence, on the balance of probabilities, did not satisfy the requirements of Statement of Principles No. 53 of 2014, which governs claims related to malignant neoplasm of the prostate. Specifically, there was no evidence linking any increased intake of animal fats, as described in the applicant's dietary survey, to operational service.

Consequently, the Tribunal concluded that the veteran's death by prostate cancer was not war-caused. The decision under review, which denied the war widow's pension on this basis, was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) provides that if it appears to the Tribunal the issues for determination on review can be adequately determined in the absence of the parties, and the parties consent, a decision can be made “on the papers”. In this matter a hearing was not convened and a determination has been made in the absence of the parties. The Tribunal admitted into evidence and marked as Exhibit 1 the s 37 T Documents.THE EVIDENCEFamily evidence Unfortunately due to the death of the veteran some time ago, there is no direct evidence from him regarding his food habits prior to enlisting, whilst enlisted or subsequent to his return to civilian life in 1946. As the Applicant only met the veteran and married him in 1960 she is not in a position to give first-hand evidence of his food consumption habits for the first 39 years of his life. The Tribunal also was not presented with any historical first hand evidence from persons who knew the veteran or members of his family who would have observed his type and quantity of food he consumed in the period 1921 – 1960. The Applicant appeared before, and gave evidence to, the Veteran’s Review Board on 8 February 2017. The Tribunal was provided a copy of the transcript of those proceedings. However, a perusal of the Transcript elicits no additional information about the veteran’s dietary habits. While the Applicant confirmed that she met her husband in 1960 (Transcript p. 4), there was no evidence given by her about his food habits. A perusal of the Transcript discloses that the proceedings were extremely short and dealt in a relatively brief manner with expert evidence which will be discussed below. In short, the Transcript provides little assistance to the Tribunal. The Applicant did, however, complete a “Dietary Survey – (Widow) Malignant Neoplasm of the Prostate” form. This form is a document prepared by the Department of Veterans’ Affairs, and was completed by the Applicant on 28 September 2016 – Exhibit 1 T14.2 pp. 115 – 124. The Applicant claimed that her husband’s pre-war diet was “much leaner in fat content” - p. 124. She stated that she produced most dinners during their married life as well as breakfasts and lunches – p.115. Included in the meals cooked were roasts twice weekly with roast vegetables served with gravy. Most meals were cooked in butter, dripping, lard or vegetable oil. Condiments were regularly applied to meals, including tomato and Worcestershire sauce and gravy. In addition, the veteran had take-away meals 2-4 times each week, including meat pies and fish and chips. The veteran would consume cheerios/frankfurts, potato chips, fried pork sausages, fried lamb chops, fried bacon, lard and tinned soups 2-4 times each week – pp. 120-122.Julie Gilbert – Dietitian Ms Julie Gilbert was engaged by Legacy Brisbane to provide a dietary analysis on the amount of fat consumed by the veteran in his post-World War II diet. Ms Gilbert is an Accredited Practising Dietitian, and had in 2016 13 years’ experience in this field. She is also the owner of “Solutions with Food” and employs five dietitians to provide services to various hospitals, aged care facilities and 20 medical centres – Exhibit 1 T14.1 p.113.

Decision

Reasons for decision

The material presented does not meet the requirements of Statement of Principles No. 53 of 2014, in that the evidence, on the balance, does not satisfy the Tribunal that the veteran’s death by malignant neoplasm of the prostate was war-caused.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Further, there are antecedent inquires required of the Tribunal before applying the Deledio methodology. Those antecedent inquiries were explained by Mansfield, Stone and Edmonds JJ in Collins v Repatriation Commission [2009] FCFAC 90; 177 FCR 280 (Collins) as follows ([18]/284-285):“It is common ground that there are necessarily antecedent inquiries before applying ss120 and 120A as explained by the ‘Deledio principles’. They are:1. whether the claimant was a veteran, or a dependant of a deceased veteran;2. whether the veteran has suffered an injury or disease or has died…; and3. the cause of death or the ‘kind of death’ of the veteran…those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”CONSIDERATIONPreliminary Issues As explained in Collins it is necessary to deal with certain antecedent or threshold issues. It is not contested that the Applicant is the widow of the veteran who rendered eligible war service during World War II in New Guinea. It is also not contested that the veteran died on 18 February 2016, and that his Death Certificate lists the causes of death as prostate cancer and advanced dementia. However, the cause of death for the purposes of ss 120 and 120A of the Act, requires an inquiry into the “kind of death” suffered by the veteran. The manner of approaching this issue was explained in Repatriation Commission v Codd [2007] FCA 877; 85 ALD 619. In that matter, the Applicant was the widow of a veteran who served in the Australian Army from 1942 – 1946. In 1968, Mr Codd was killed when the truck he was driving was struck by a train at a level crossing. The Tribunal found that the ‘kind of death’ was death by road accident. This was despite the Tribunal finding that Mr Codd had a drinking problem, and the effects of alcohol consumption were likely to have impacted on his concentration and contributed to the fatal accident. Gordon J made the following observations ([31], [35] – [36], [40]):“31. The phrase ‘kind of death met by the person’ in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks ‘questions of medical causation’ about the cause of death and does so in a particular context…35. What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.36. The ‘kind of death met by the [veteran]’ that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service. In the present case, the hypothesis was that death was war-caused and that the cause, or at least one of the causes of death, was the veteran’s ‘service related alcohol habit[,] the effects of which [had] impaired his concentration and contributed to the fatal collision’.…40. In the present case, the kind of death met by the veteran was not death by road accident but death from (in the sense of arose out of, or was attributable to) alcohol dependence or alcohol abuse.”