Martin and Repatriation Commission - [2000] AATA 1131

DECISION AND REASONS FOR DECISION [2000] AATA 1131

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/64

VETERANS' APPEALS DIVISION          )
           Re      NORMA MARTIN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member

Date21 December 2000
PlaceCanberra

Decision      The tribunal affirms the decision under review.
  ...................(Sgd)..... ...............
  Pamela Burton
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement - widow's claim that death of the veteran was war-caused – whether stressful event in the course of war service such as to cause excessive use of alcohol – whether hypertension developed and caused ischaemic heart disease – relationship between war service, alcohol intake and cirrhosis of the liver – decision affirmed

LEGISLATION
Veterans' Entitlements Act 1986
AUTHORITIES
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gartrell [2000] FCA 1228

REASONS FOR DECISION

21 December 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member

This is an application by Norma Martin, the wife of veteran Warren Martin, for review of two decisions of the Repatriation Commission. In the first decision, dated 10 October 1997, the Repatriation Commission refused the veteran's claim for disability pension for the conditions of post-traumatic epilepsy with brain damage, psychoactive substance abuse or dependence and ischaemic heart disease. In the second decision, dated 11 March 1998, the Repatriation Commission refused the applicant's claim for war widow's pension on the ground that the veteran's cause of death from ischaemic heart disease and cirrhosis of the liver were conditions not accepted as being causally related to his war service. On 16 February 1999 the Veteran's Review Board (the "VRB") affirmed the two decisions of the Repatriation Commission.
The hearing took place on 29 September 2000. Mr Paul Crabb represented the applicant and Mr Stephen Modder represented the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents"). Medical reports and clinical notes were tendered at the hearing. In addition, the tribunal heard the evidence of the applicant, and by telephone Dr Macdonald, the veteran's general medical practitioner, and Commander Graham Vagg, who served with the veteran in the Royal Australian Navy (the "RAN") as an engineering officer on HMAS Sydney.
The veteran's claims and medical history
The veteran made a claim for a disability pension and treatment, which was received by the respondent on 3 June 1997 (T4, p.34). The claimed conditions were in respect of "alcoholism (chronic), head injury with brain damage and post traumatic epilepsy & myocardial infarction" (T5). The veteran died on 10 August 1997 at the age of 52. The certified causes of death were as follows (T14, p.71 and T19, p.94):
I. Direct cause -  (a) Myocardial infarction
Antecedent causes -  (b) Coronary artery disease
  (c) Atherosclerosis & liver disease
II. Other significant conditions          Bronchopneumonia
contributing to death -  Cirrhosis of liver

On 8 September 1997 the applicant made an informal claim for…

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 Martin and Repatriation Commission

Details

AGLC: Martin and Repatriation Commission [2000] AATA 1131
Case: [2000] AATA 1131
Decision Date: 21 December 2000

CaseChat Overview and Summary

The case involved a widow's claim for benefits under the Veterans' Entitlements Act 1986, alleging that the death of her husband, a veteran, was caused by his war service. The dispute was heard and decided by the Administrative Appeals Tribunal. The widow argued that her husband's service in the Royal Australian Navy, including tours in Vietnam, caused him to develop a drinking problem which in turn led to his death from cirrhosis of the liver.

The central legal issue for the tribunal was whether the veteran's operational service in the war had caused him to consume excessive alcohol to the point that it contributed to his death from cirrhosis of the liver. Specifically, the tribunal had to determine if there was a causal link between the stressful events during the veteran's service and the onset of his alcohol dependency, and if that dependency led to the cirrhosis that caused his death.

The tribunal found that while the veteran's drinking did increase after his tours in Vietnam, there was insufficient evidence to establish a causal link between his war service and the onset of excessive alcohol consumption. The tribunal concluded that the cirrhosis of the liver, and consequently the veteran's death, were not war-caused. Therefore, the widow's claim for benefits was rejected.

The tribunal affirmed the original decision under review, upholding the Repatriation Commission's refusal to accept the widow's claim for benefits. This decision was based on the tribunal's findings that the veteran's cirrhosis of the liver was not causally related to his operational service, and thus his death was not considered war-caused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Act requires that for a claim to be accepted the disability or death of the veteran must be related to operational and/or eligible defence service. The veteran was born on 18 March 1945. He enlisted in the RAN on 7 July 1961 and was discharged on 17 April 1968 (Exhibit 1 and T3, p.12). Between 4 May 1966 and 26 April 1968 he served on the HMAS Sydney. The veteran's operational service in Vietnam was between 4 May 1966 to 6 May 1966; 6 June 1966 to 8 June 1966; and on 9 April 1968. The periods in Vietnam were in the course of his service on each of three tours on the HMAS Sydney. The periods of his operational service therefore extend to the periods of the three tours, being: 24 April 1966 to 18 May 1966; 25 May 1966 to 11 June 1966; and 27 March to 26 April 1968. (T3, p.12). The veteran was absent from Naval Service without leave from August 1966 to 28 January 1968. He received a sentence of 42 days detention on 7 February 1968 of which he served 32 days (service records Exhibit 1). The applicant's evidence The applicant and the veteran had known each other since they were children. They met in Woodburn, New South Wales, and were "boyfriend and girlfriend" since the ages of 13 years. They were engaged in 1964 and married on 23 July 1966 (applicant's statement Exhibit F). During the veteran's early training as an apprentice fitter and turner in the RAN, the couple lived in Sydney (report of Ms Kate Barrelle, clinical psychologist, Exhibit B). The applicant recollects that the veteran was always "very fit and sports minded". He played rugby football at high school and representative rugby for the RAN and Parramatta. It was during this period, according to the applicant, that the veteran started drinking in a social context and on weekends. He never drank at home. He had many friends in the navy. At some point during his period with the RAN the veteran increased his drinking. The applicant recalled in her statement (Exhibit F):… when he returned home on leave after his tours of duty in Vietnam his drinking had increased dramatically. During his heavy drinking episodes he would mention different incidents in particular the hot, cramped conditions on board the Sydney and also an incident in Vung Tau Harbour – Vietnam where it was left to him to prevent a boiler from exploding. From memory it was his second tour of duty. After the veteran's discharge the couple moved to the North Coast of New South Wales, and then to Brisbane. His drinking continued to increase. In her statement the applicant said:Being his wife and mother of his two children I did not want to admit that Warren had a drinking problem, I found myself making excuses for him. He became very withdrawn, lost all interest in sport and showed little if any interest in his sons' Rugby playing. He isolated himself from family, friends and Navy mates. He never attended any Anzac Day marches or re-unions except once which was the year he passed away. The veteran's work experiences were not successful. The applicant recalled in evidence that her husband was able to obtain good jobs, "well paid managerial positions", but found it hard to keep work. The veteran's life, by the time the couples' children left home, "revolved around drinking and trying to hold down a job" (Exhibit F). He tried share farming, then worked at ACI (a glass factory) in Brisbane, followed by work in the insurance industry and then in real estate. According to the applicant, he lost the last two jobs "because of alcoholism". The applicant recalled that the veteran often left for work early in the morning, sometimes at 4.30am. She later learned that this was because he was drinking before work, and found the veteran had kept bottles of alcohol in the boot of his car. He drank at work, mostly scotch and port. Not long before his death, the veteran started a lattice factory "which lasted about three months leaving many debts" (Exhibit F). One of the reasons for the failure of the business is that the veteran lost his drivers' licence in 1996 and his work required him to drive.

Decision

Reasons for decision

The tribunal does not accept that the veteran's level of consumption of alcohol in any ten-year period before the clinical onset of cirrhosis of the liver was causally related to his operational service. The tribunal finds that the veteran's cirrhosis of the liver, which contributed to his death, was not war caused. Decision The tribunal affirms the decision under review. I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member and Dr Michael Miller, AO, MemberSigned: James Enderbury ..................................................................................... AssociateDate/s of Hearing 29 September 2000 Date of Decision 21 December 2000Counsel for the Applicant Mr Paul Crabb Counsel for the Respondent Mr Stephen Modder

Ratio Decidendi

Legal Principle Established

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