Margaret Aspinall and Repatriation Commission
[2014] AATA 305
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/4226
Veterans' Appeals Division )
Re: Margaret Aspinall
Applicant
And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL: Dr P McDermott RFD, Senior Member
DATE: 30 May 2014
PLACE: Brisbane
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 as follows:
The date ‘7 June 2012’ where it appears in the decision on page 1; and at paragraph 48 on page 16 should instead read ‘21 July 2012’.
...........................Sgd..............................
Senior Member
[2014] AATA 305
Division Veterans' Appeals Division File Number
2013/4226
Re
Margaret Aspinall
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Dr P McDermott RFD, Senior Member
Date 16 May 2014 Place Brisbane I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that Margaret Aspinall is entitled to a widow's pension; the date of effect of my decision is 7 June 2012.
..............................Sgd.....................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Death of veteran – Death by cardiomyopathy – Operational service – Statement of Principles concerning Cardiomyopathy – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war caused – Decision under review set aside and substituted
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6B, 7, 8, 11, 13, 14, 120, 120A, 196A, 196B
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Collins v Repatriation Commission (2009) 258 ALR 204
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Gilbert v Repatriation Commission (1989) 86 ALR 713
Knight v Repatriation Commission [2010] FCA 1134
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 147 CLR 635
Repatriation Commission v Stares (1996) 41 ALD 212
SECONDARY MATERIALS
Statement of Principles concerning Cardiomyopathy (Instrument No 27 of 2003)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
16 May 2014
INTRODUCTION
Margaret Aspinall (the applicant) was a dependent of the late Ernest John Lawrence Aspinall (the veteran) who served as an Australian mariner in World War II.
The applicant has applied for a war widow’s pension. I have to decide whether the death of the late veteran was related to his service.
BACKGROUND
On 7 September 2012 the applicant made her claim for a war widow’s pension.
On 2 October 2012 a delegate of the Repatriation Commission rejected the claim.
On 22 July 2013 the Veterans’ Review Board (VRB) affirmed the decision. The applicant seeks review of the decision by this Tribunal.
SERVICE
As an Australian mariner, the veteran rendered “eligible war service” in the form
of operational service from 25 October 1943 to 17 October 1944 and from
1 November 1944 to 11 October 1945 which included service outside Australia.[1] The veteran was awarded the 1939-45 Star and the Pacific Star for his service to his country.[2]
[1] As defined by ss 6B and 7 of the Act.
[2] Exhibit P, p 2.
LEGISLATIVE FRAMEWORK
Section 8 of the Veterans’ Entitlement Act 1986 (Cth) (the Act) provides for when the death of a veteran is taken to be war-caused. This provision applies where, relevantly under s 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
Section 13(1) of the Act provides, relevantly, that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.
Subsection 14(1) of the Act provides for a dependant of a deceased veteran to make a claim for a pension. Section 11 provides for a dependant to include a “widow”.
Section 5E of the Act defines a “widow” to be a woman who was the partner of a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran.
As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and 120(3) of the Act.
Section 120(1) of the Act provides that where a claim for a pension:
in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Section 120(3) of the Act also provides that
In applying [section 120(1)] in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
STATEMENT OF PRINCIPLES
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA). The RMA is an independent medical body that issues Statements of Principles based on sound medical-scientific evidence which set out factors relating to service which must exist in order to establish a causal connection between particular diseases, injuries or death, and service.
Section 196B(2) of the Act provides that if the RMA:
(2) … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans;
…
[they] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.
A Statement of Principles is binding on decision-makers at all levels, including this Tribunal.
The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing 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
In the case of applications lodged after 1 June 1994, where the RMA has made a Statement of Principles in respect of a particular kind of injury, disease or death, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This is followed by the application of s 120A(3) of the Act, which provides that:
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
DEATH OF THE VETERAN
I am required to determine the “kind of death” that is applicable to the veteran.
The expression “kind of death” refers to the medical cause or causes of death.[3]
[3] Repatriation Commission v Hancock [2003] FCA 711 at [8]-[9] per Selway J.
The death certificate records that the veteran died in 2012, the causes of death being:[4]
1 (a) Ventricular tachycardia, (b) Idiopathic dilated cardiomyopathy
2. Atrial fibrillation.
[4] See Exhibit A, p 5.
The duration of ventricular tachycardia is described as “immediate”. The duration of idiopathic dilated cardiomyopathy is described as “years”. The duration of atrial fibrillation is described as “years”.
Because one of the veteran's “cause[s] of death” was certified as being idiopathic dilated cardiomyopathy (which comes within the definition of cardiomyopathy in cl 3(b) of the Statement of Principles concerning Cardiomyopathy (Instrument No 23 of 2007)
(the SoP)), it is accepted (and I find) that the veteran’s kind of death was cardiomyopathy. It has been held that there may be more than one cause of death.[5]
[5] Repatriation Commission v Law (1980) 147 CLR 635 at 648; Collins v Repatriation Commission (2009) 258 ALR 204 at [51].
CONSIDERATION
As I have found that the veteran suffered from cardiomyopathy, I am required to consider the applicant’s claim in accordance with the Repatriation Commission v Deledio[6] (“Deledio”) four-step process.[7]
[6] (1998) 83 FCR 82 at 82-83.
[7] Repatriation Commission v Bawden [2012] FCAFC 176 at [40].
In Deledio, the Full Court of the Federal Court of Australia provided guidance on the four steps which I must consider:
(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a [Statement of Principles (SoP)] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(iii) If an SoP is in force, the Tribunal must then form the opinion whether the 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.
(iv) 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.[8]
[8] Deledio at 82-83.
[10] (2007) 163 FCR 35 at [31].
In Forrester v Repatriation Commission,[9] Mortimer J observed that in
Collins v Administrative Appeals Tribunal,[10]Allsop J pointed out that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.
[9] [2013] FCA 898.
Step 1 of Deledio
I must consider all the material before me and determine whether that material points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. It has been said that “a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact”.[11]
[11] Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
I consider that the VRB was correct in ruling that the material does raise a hypothesis connecting the death of the veteran with the circumstances of his operational service.
I give my reasons for coming to that conclusion.
The applicant in giving evidence explained that she was told by the veteran that he began to drink alcohol for the first time during the war. Mr Ben Aspinall, a son of the veteran, has researched the history of his family; he gave evidence that the veteran had come from a strict Methodist background and joined the Merchant Marine at the age of 15 (his actual joining age was 16 years of age) and began drinking during the war. Dr Palazzo has pointed out that the log on the SS Mungana discloses widespread consumption of alcohol as well as disciplinary infractions.
There is contemporaneous evidence which indicates that the veteran was a heavy drinker of alcohol whilst in the service of the Merchant Marine; this is despite him being a minor. The veteran wrote a number of letters to his mother and these letters were admitted in evidence. In a letter that was written on 8 September 1945 in Melbourne (just days after the formal surrender of Japan on 2 September 1945) the veteran related how he and some of the crew were “staggering aboard about midnight”;[12] the veteran was eighteen years of age when he wrote that letter. On 6 May 1946 the veteran wrote a letter from Darwin in which he related how they “made [themselves] a nuisance generally to all drink waiters” and how an “old gent” was “watching [them] knocking back drinks at an alarming rate for about five minutes” and how they “tackled a drinks waiter who was trying to sneak past unseen”;[13] that letter was written when the veteran was only nineteen years of age. On 3 July 1946 the veteran wrote a letter in which he related how “everyone has a pretty dirty liver”.[14] In a letter dated 25 May 1947 the veteran related how “the whole of the ship’s company [were] as tight as newts, but quite happy”.[15] On 30 May 1948 the veteran wrote a letter from Malta in which he remarked: “Traditionally on the first night ashore we got drunk and otherwise celebrated in a sailorlike manner”; the veteran was then twenty-one years of age.[16] On 9 June 1948 the veteran wrote another letter from Malta in which he remarked: “Only been tight once although I must admit the shares in the local brewery have gone up since our arrival apart from drinking there is not much left to do”.[17] On 10 July 1949 the applicant wrote another letter in which he mentioned that he was “liberally lubricated” and having the “most remarkable quantities of beer”; in mentioning his stay in Mombasa he remarked that there was a “big party each night we were there at the big pub”.[18] On 19 December 1949 the veteran wrote a letter from Fremantle in which he remarked: “I’ve decided to give up the beer. Temporarily anyhow”.[19]
[12] Exhibit G.
[13] Exhibit H.
[14] Exhibit I.
[15] Exhibit J.
[16] Exhibit K.
[17] Exhibit L.
[18] Exhibit M.
[19] Exhibit O.
There is one item of correspondence from the veteran which does not indicate the year in which it was written. It is the letter to his mother which bears the location “Cairns” and is dated “18th August”. This letter has a reference to “V.P. Day” and would have been written after the original V.P. Day (15 August 1945). The veteran writes of the local V.P. Day celebrations: “There was tons of grog on up here and all hands were absolutely rotten, bar none, & it wasn’t so bad until the effects wore off, and then were bored stiff & horibly [sic] home-sick”.[20] While I am not required to find facts at this stage of my inquiry, it would be fair to assume that the letter was written on 18 August 1945 as the ship’s log for the SS Mungana records that the ship was berthed in Cairns on that day.[21] In the letter, the veteran also remarked that he did not think that “the recent world events will affect our immediate arrangements”; this reference to “the recent world events” may well have been a reference to the Japanese surrender. I should mention that I am required by the Act[22] to have regard to the passage of time in endeavouring to ascertain when the letter may have been written.
[20] Exhibit N.
[21] SS Mungana Official Log (NAA SP290/1), Exhibit P, p 28.
[22] See s 119(1)(h)(i) of the Act.
It was in 1953 that the applicant first met the veteran when she took a ship to
New Zealand; he was then a first mate on the ship, and she did not see him drink alcohol. In 1954 she introduced the veteran to her friends at Jervis Bay where she worked as a physiotherapist; he then gave a good impression to her friends but had consumed some alcohol. In 1954 the applicant was informed by her brother that the veteran was an alcoholic: her brother was told this from the shipmates of the veteran. The applicant married the veteran in 1955. The applicant recounted how on one occasion because of his use of alcohol the veteran fell asleep in the presence of her mother. In 1956-1957 when they lived in a flat at Hobart he would have two bottles of beer when he come home for lunch; as well as having these drinks he would also have drinks in the evening.
The applicant stated that in 1960 they lived in Townsville where the veteran served as a maritime pilot. Before then they had lived apart for much of their marriage as the veteran had spent time working at sea. She stated that at this time she was then concerned about his use of alcohol and would reproach him with no effect about his use of alcohol.
She had then researched alcoholism in the local library.
The respondent has conceded that the veteran experienced severe stress during his service. This concession is appropriate having regard to the fact that Dr Palazzo has reported that that a German submarine (U-862), based in Batavia, was operating in the area where the SS Mungana was sailing. Dr Palazzo has explained that in view of the fact that all seaborne traffic had been rerouted south of Tasmania “the routes of the two vessels overlapped more than one might normally expect”.[23] Timothy Aspinall has given a statement in which he mentioned that the veteran told him how his ship was fired on by a submarine; the two torpedoes had missed the ship due to the ship going over a swell at that moment.[24] The crew of the SS Mungana would have been aware of the real danger to their existence in view of a record in the radio log of SS Mungana of distress signals from the US Liberty Ship Robert Walker which was attacked by U-862 on 24 December 1944. Dr Palazzo, whose report has been accepted “in toto” by the respondent, has pointed out that all merchant ships operating in Australian waters were warned to darken their ships at night as well to adopt a zig-zag course.
[23] Exhibit P.
[24] Exhibit D, para 7.
In this first Deledio step I am not required to make findings of fact but rather to examine the material to ascertain whether the material points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. There is evidence that the applicant first drank alcohol whilst on operational service. He was certainly a heavy drinker whilst he was a minor, and there is evidence of an incident when he was intoxicated just after the end of the war. During the war the crew of
SS Munganawould have been under severe threat from U-862.
In Forrester v Repatriation Commission,[25] Mortimer J has provided guidance on the first step in Deledio, and has pointed out that “whether material points to or supports a hypothesis is, of its nature, a matter which can be determined by inference or assumption”. Her Honour has pointed out that in Repatriation Commission v Stares[26]
(a pre-Deledio case), the Full Court held that “assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach”. There is material which suggests that on 15 August 1945[27] the veteran was not only engaged in heavy drinking but was intoxicated: this was during the hostilities which concluded before 3 September 1945.[28] The veteran also engaged in heavy drinking in the years after the conclusion of hostilities.[29] I consider that it is fair to assume that the veteran was a heavy drinker both during and after the conclusion of hostilities.
[25] [2013] FCA 898 at [30].
[26] (1996) 41 ALD 212.
[27] Exhibit O.
[28] See s 5B of the Act.
[29] Exhibit G.
I consider that the material before me points to a hypothesis that the veteran commenced drinking alcohol whilst he was a minor during wartime, this caused the veteran to become a heavy drinker during and after the war and this heavy consumption of alcohol by the veteran contributed to the cardiomyopathy condition which has been certified to be a cause of the death of the veteran.
Step 2 of Deledio
I must next ascertain whether there is in force any Statement of Principles issued by the RMA under ss 196B(2) or (11) of the Act. For the various components of the hypothesis, I have ascertained that the relevant Statement of Principles in force is the Statement of Principles concerning Cardiomyopathy (Instrument No 23 of 2007) (the SoP).
Step 3 of Deledio
In assessing whether a raised hypothesis is “reasonable”, I am required to follow the decision of the High Court of Australia in Byrnes v Repatriation Commission,[30] which held, at 569,[31] that a reasonable hypothesis is raised when “the material points to some fact or facts ('the raised facts') which support the hypothesis”. Furthermore, the
High Court said, at 571, that in relation to this step:
The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
[30] (1993) 177 CLR 564.
[31] Citing Mason CJ and Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.
Since 1 June 1994, in accordance with s 196B(8) of the Act, to assist a decision-maker in establishing whether an applicant's hypothesis is reasonable, for the purposes of the Act it must refer to the relevant Statement of Principles issued by the RMA. Therefore, this Tribunal must ascertain if it has material before it which fits the template for the relevant Statement of Principles. I am conscious that it has been held that the material must pose a credible proposition, not too remote or too improbable; it must be:
... more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.[32]
[32] East v Repatriation Commission (1987) 16 FCR 517 at 532-533.
Accordingly, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility.[33] The High Court of Australia held in Bushell v Repatriation Commission[34] that the s 120(3) test will reveal a reasonable hypothesis where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with operational service”.
[33] Gilbert v Repatriation Commission (1989) 86 ALR 713 at 721; Repatriation Commission v Bey (1997) 79 FCR 364.
[34] (1992) 175 CLR 408 at 416.
The RMA is of the view that there is sound medical-scientific evidence that indicates that death from cardiomyopathy can be related to relevant service rendered by veterans.[35]
[35] The SoP at cl 4.
For a kind of death involving cardiomyopathy, cl 3(b) of the SoP provides:
Kind of injury, disease or death
3. (a) ...
(b) For the purposes of this Statement of Principles, "cardiomyopathy” means a disease that involves the myocardium directly and results in dilation, restriction or hypertrophy of the heart
I have already mentioned that the death certificate records that one of the causes of death of the veteran was cardiomyopathy. I am therefore reasonably satisfied that the veteran’s cardiomyopathy was a cause of the death.
Clause 5 of the SoP provides, subject to cl 7 (which is not material in this application), that at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person.
Clause 6 of the SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from cardiomyopathy with the circumstances of a person’s relevant service is:
(b) for males only, drinking at least 250 kilograms of alcohol within any ten year period before the clinical onset of cardiomyopathy; or
Clause 9 of the SoP provides:
"death from cardiomyopathy" in relation to a person includes death from a terminal event or condition that was contributed to by the person’s cardiomyopathy;
I have to consider whether a reasonable hypothesis has been raised connecting death from cardiomyopathy with the circumstances of the veteran’s relevant service.
The applicant relies upon the factor at cl 6(b) of the SoP. To apply this factor it is important to determine a date when there was the clinical onset of cardiomyopathy. The respondent at the hearing has conceded that the clinical onset of cardiomyopathy was in 1989 when there was a diagnosis of cardiomyopathy at the Alderley Clinic. The respondent in its statement of facts, issues and contentions dated 5 May 2014 has also conceded at paragraph 2 that the deceased veteran certainly did consume alcohol at the level described in cl 6(b) of the SoP. These concessions were properly made as the VRB concluded that the veteran may well have consumed the required quantity of alcohol in a ten year period prior to the clinical onset of cardiomyopathy. The VRB observed that the consumption of four full size bottles of beer per day is well in excess of the required rate. The respondent did not want to question Timothy Aspinall, one son of the veteran, who gave a statement in which he detailed the excessive use of alcohol by the veteran who would “buy a case of twelve tallies at a time and would finish it within two days”.[36] The definition of “death by cardiomyopathy” in cl 9 of the SoP makes it clear that the SoP applied to a case such as this where cardiomyopathy is a contributing cause of death.
[36] Exhibit D, para 6.
In determining whether there is a reasonable hypothesis, I am conscious that the
High Court of Australia in Bushell v Repatriation Commission[37] explained, at 413, that
s 120(3) of the Act is:
not concerned with conflicts in the material, whether they be of opinion or fact. The purpose of sub-s. (3), as demonstrated by its terms and its history, is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis.
[37] (1992) 175 CLR 408.
In Knight v Repatriation Commission[38] Katzmann J explained that “the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis”.[39]
[38] [2010] FCA 1134.
[39] [2010] FCA 1134 at [35].
I consider that the hypothesis is a reasonable hypothesis in that the death of the veteran is connected with the circumstances of his service. There is material pointing to the veteran having first drunk alcohol whilst he was on operational service and exposed to severe stress, this caused the veteran to become a heavy drinker of alcohol during and after World War II whilst he was still a minor and later an adult. This hypothesis fits the template because there is no issue that the veteran consumed alcohol at the rate that is prescribed by the SoP[40] for ten years before the clinical onset of cardiomyopathy.
[40] East v Repatriation Commission [1987] FCA 242 at [44].
Step 4 of Deledio
[41] [2013] FCA 898 at [80].
I am now required to consider, under s 120(1) of the Act, whether or not, for the hypothesis, I am satisfied “beyond reasonable doubt” that the veteran's death was not war-caused. After my review of the evidence I have decided that I cannot be satisfied beyond a reasonable doubt that the veteran’s death was not war-caused. In
Forrester v Repatriation Commission[41]Mortimer J, in discussing the fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at that stage”.
There is one item of evidence that I should comment upon. The service of the applicant as an apprentice was certified by the Acting Marine Superintendent of A.U.S.N. Co. Ltd. on 27 November 1946 for the purposes of the examination of the veteran for his second mate’s certificate. The following remarks appear in that certificate: “The Commanders with whom he sailed report favourably regarding his ability, conduct and sobriety”.[42]
I do not regard this standard form of reference as being necessarily indicative of the state of sobriety of the veteran at that time. This is because there is contemporaneous evidence in the form of correspondence from the veteran who in his letters home dated
6 May 1946 and 3 July 1946 indicated that he was then a heavy drinker.
[42] Exhibit A, p 1.
The respondent in its facts and contentions dated 5 May 2014 has properly conceded at paragraph 4 that it cannot satisfy this Tribunal beyond a reasonable doubt that the death of the veteran was not war-caused.
DECISION
I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that Margaret Aspinall is entitled to a widow’s pension; the date of effect of my decision is 7 June 2012.
I certify that the preceding 48
(forty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member...........................Sgd..........................................
Associate
Dated 16 May 2014
Date of hearing 8 May 2014 Solicitors for the Applicant Terence O'Connor, Terence O'Connor Solicitors Solicitors for the Respondent Adrian Crowe, Department of Veterans' Affairs
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