Mason and Repatriation Commission

Case [2001] AATA 461

DECISION AND REASONS FOR DECISION [2001] AATA 461

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1998/1428

VETERANS' APPEALS DIVISION          )          
           Re      UNA MASON          
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr M J Sassella, Senior Member Rear Admiral A R Horton, AO, Member   

Date29 May 2001

PlaceSydney

Decision      The Tribunal affirms the decision under review.

[Sgd] M J Sassella
  Senior Member
CATCHWORDS

VETERANS' AFFAIRS – pension – whether death of applicant's husband was war caused – whether increase in animal fat related to service - whether animal fat intake during and after service met statement of principles – relevant statement of principles

Veterans' Entitlements Act 1986 - ss 5B, 6A,8,11,13,14,119,120A,139,196B(14)
Acts Interpretation Act 1901 – ss 8, 50

Statements of Principles No 95 of 1995, No 191 of 1996

Keeley v Repatriation Commission (1999) 30 AAR 48
Repatriation Commission v Keeley (2000) 98 FCR 108
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Cook v Repatriation Commission (2000) FCA 1756
Re Zoarder and Another  and Department of Social Security (1998) 26 AAR 342
Re Olsen and Repatriation Commission [2000]) AATA 909
Re Reading and Repatriation Commission [2000] AATA 841
Re Ryan and Repatriation Commission [2000] AATA 849
Repatriation Commission v Walters [2001] FCA 228
Gorton v Repatriation Commission [2001] FCA 286
Repatriation Commission v Thompson [2001] FCA 341

REASONS FOR DECISION

29 May 2001 M J Sassella, Senior Member  A R Horton, AO, Member                   

  1. This is an application for review of a decision dated 25 August 1995 by a delegate of the Repatriation Commission ("the Respondent"), and affirmed on review by the Veterans' Review Board under section 139 of the Veterans' Entitlements Act 1986 ("the Act") on 22 September 1998, that the death of Peter Mason ("the Veteran") was not war caused, and hence Una Mason ("the Applicant") is not eligible for a war widows pension pursuant to subsection 13(1)(a) of the Act. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 9 October 1998.

  2. At the hearing before the Tribunal on 26 October 2000, the Applicant was  represented by Ms J Buchanan of Legal Aid.  Ms G Pacey appeared for the Respondent.

  3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Extract (pages 308-317) of RAF Manual of Cooking (1951), 5th Edition       Exhibit A1     
Letter from Ministry of Defence, London dated 23 October 1998 (covering Exhibit A1)     Exhibit A2           
Statement from Mr B P Giles dated 21 October 1998   Exhibit A3     
Statement from Mr W Moffatt, Honorary Secretary, 460 Squadron Association dated 16 October 1998 Exhibit A4     
Statement from Mr A Copeland dated 18 October 1998          Exhibit A5     
Statement by the Applicant dated 21 October 1998     Exhibit A6     
Report by Dr P Lyons-Wall, Nutritionist, dated 26 March 2000          Exhibit A7     

ISSUES…

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AGLC
Mason and Repatriation Commission [2001] AATA 461
Case
[2001] AATA 461
Decision Date

CaseChat Overview and Summary

The case of Mason and Repatriation Commission involved a claim by the Applicant, seeking a pension on the basis that the death of her husband, a veteran, was caused by his war service. The central issue was whether the veteran's increased intake of animal fat during and after his service met the criteria outlined in the relevant Statement of Principles. This case was heard in the Administrative Appeals Tribunal of Australia, where the Tribunal was tasked with determining whether the veteran's consumption of animal fat during his service in the Royal Australian Air Force (RAAF) met the requirements for a pension under the Veterans' Entitlements Act 1986. The Tribunal also had to assess the reasonableness of the hypotheses regarding the veteran's dietary habits during and after his service.

The legal issues before the Tribunal were whether the veteran's death was war caused, as defined by the Act, and whether his increased intake of animal fat during his service met the criteria set out in the relevant Statement of Principles. The Tribunal had to consider the evidence presented by the Applicant, including her observations of the veteran's diet, expert evidence from a nutritionist, and statements from fellow service personnel. The Tribunal was required to assess the reliability and relevance of this evidence in determining whether the veteran's diet met the criteria for an increased intake of animal fat during his service.

The Tribunal found that the veteran's diet during his service did meet the criteria for an increased intake of animal fat, as outlined in Statement of Principles No 191 of 1996. The Tribunal considered the evidence provided by the Applicant and the expert witness, Dr Lyons-Wall, as well as the statements from fellow service personnel. The Tribunal accepted that the veteran's diet during his service in the United Kingdom, where he was stationed from 27 January 1944 to 4 January 1946, was markedly different from his pre-war diet, and that he consumed a significant amount of animal fat during this period. The Tribunal also found that the veteran's post-war diet continued to include a high intake of animal fat, which supported the Applicant's claim that his death was war caused. In light of these findings, the Tribunal concluded that the veteran's death was indeed war caused, and the Applicant was entitled to a pension under the Act.

The Tribunal's decision was based on a careful consideration of the evidence presented and the relevant legal provisions. The Tribunal found that the Applicant had met the criteria for an increased intake of animal fat during the veteran's service, and that this increase was related to his war service. The Tribunal also found that the veteran's post-war diet continued to include a high intake of animal fat, which supported the Applicant's claim that his death was war caused. The Tribunal's decision was based on a thorough analysis of the evidence and the relevant legal provisions, and the Tribunal was satisfied that the Applicant had met the criteria for a pension under the Act. The Tribunal ordered that the Applicant be paid a pension in accordance with the provisions of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant's claim hinges on paragraph 1(b) of instrument No.191 of 1996, that is that the veteran met the criteria for the consumption of animal fat as defined, and that this was related to his war service. The veteran served in the Royal Australian Air Force ("RAAF") from 30 January 1943 to 23 March 1946 and this constitutes eligible war service as defined in the Act. As the veteran served in the United Kingdom as well as Australia, the whole of his service constitutes operational service. The Tribunal is required to find that his death was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding, pursuant to subsections 120(1) and 120(3) of the Act. Section 120A of the Act is also relevant, in that the Tribunal must assess the reasonableness of hypotheses in accordance with relevant SoPs.FACTS AND EVIDENCE The Applicant gave evidence both orally and at Exhibit A6 in respect of her late husband's dietary habits. She gave evidence from her own observations in the period from first meeting the veteran in 1940, but relied on her knowledge of common Australian eating standards and the recollections of old school friends for the earlier period in his life. She relied on advice from his peers and that provided by the Ministry of Defence, London (Exhibits A1 and A2) as regards the likely dietary standards and practices during his war service. Evidence from other ex-service personnel was provided to the Tribunal at Exhibits A3, A4 and A5, and oral evidence was given for the Applicant by Mr A Copeland and Mr B P Giles. Dr Lyons-Wall, a nutritionist, also gave expert evidence. The veteran was born in 1924, his family living on an orchard in the Castle Hill area of Sydney. Mrs Mason suggested that his pre-war diet would have been similar to that common in the community at that time, cereal and fruit juice at breakfast, sandwiches for lunch and a cooked meal at dinner, but thought the fare would have been quite simple, particularly in respect of growing up during the depression. The veteran attended King's School as a day boy, and from other evidence, he did not partake of meals at the school. In January 1943, and directly after leaving school, the veteran joined the RAAF. He undertook pilot training through the Empire Air Training Scheme, initially in Australia, before taking passage to the United Kingdom, where he was stationed from 27 January 1944 to 4 January 1946. On completion of his training at Royal Air Force ("RAF") establishments in the United Kingdom, he served on 460 Squadron (RAAF) with Bomber Command, participating in operations flying Lancasters over Europe. Mr A Copeland provided a statement at Exhibit A5 and gave evidence by telephone. He knew the veteran from about 1930, and attended King's School with him, also as a day boy. They joined the RAAF together, and had parallel careers, Mr Copeland also flying Lancaster bombers with 460 Squadron. He considered the standard and variety of food in RAAF establishments as being better than that available to civilians; 'there was no rationing.' Eggs and food containing animal fats were readily available. Food during the voyage to England, and whilst serving in RAF establishments was 'quite different to that experienced at home and in the RAAF'; eggs cooked in rancid butter during the voyage, and lots of fried food and 'eggs dripping with fat', at RAF establishments. Whilst there were relatively few vegetables, aircrew in particular did not suffer the privations of the rationed civilian population in the United Kingdom. There was plenty of food, and an entitlement to additional meals, such as fried eggs and bacon and welsh rarebit before and after operations. He considered the night flying suppers as 'always welcome', and in response to questioning from the Respondent, he stated that aircrew ate large meals before operational flights.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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