McGibbon and Repatriation Commission (Veterans’ entitlements) - [2015] AATA 745

McGibbon and Repatriation Commission (Veterans’ entitlements) [2015] AATA 745 (24 September 2015)

Division

VETERANS' APPEALS DIVISION

File Number

2015/0366

Re

Ivy McGibbon

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms G Ettinger, Senior Member

Date 24 September 2015

Place Sydney
The Tribunal affirms the decision under review.

...........................[sgd].............................................
Ms G Ettinger, Senior Member
CATCHWORDS
Veteran’s pension – widow of the Veteran is the Applicant at the Tribunal seeking review of a decision of the VRB which denied the widow’s pension on the basis that the Veteran’s death from pancreatic cancer was not war-caused – smoking/drinking claim – temporal claim established, but no causal connection to service - decision under review affirmed.

LEGISLATION
Veterans’ Entitlements Act 1986 ss 8,13, 120, 120A
CASES
Collins v Repatriation Commission (2009) 258 ALR 204
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Law (1980) 47 FLR 57

SECONDARY MATERIALS
Statement of Principles concerning acute pancreatitis No. 85 of 2011

Statement of Principles concerning chronic pancreatitis No. 104 of 2011
Statement of Principles concerning malignant neoplasm of the pancreas No.73 of 2013

REASONS FOR DECISION
Ms G Ettinger, Senior Member
24 September 2015
SUMMARY

The matter before the Tribunal was the application of Mrs Ivy June McGibbon for review of a decision of the Veterans Review Board which held that her late husband, Mr Raymond McGibbon’s death from pancreatic cancer in 2008 was not war-caused.
Mrs McGibbon, the Applicant, who is 85 years old, gave evidence by telephone, assisted by Mr D Rhymer, OAM, JP, an advocate from the Dapto RSL sub-branch. The Repatriation Commission was represented by Mr K Rudge.
Mrs McGibbon’s argument was that her husband commenced smoking and drinking for mateship during his operational service with the Australian Army between March 1942 and August 1946. Her evidence was that those habits endured into his later life, although he ceased smoking in 1960. According to her, the drinking caused her husband’s severe stomach pain, which may have been pancreatitis. I noted however, that there was no formal diagnosis of pancreatitis.
I have taken into consideration the evidence, legislation and relevant Statements of Principle (SOPs) in coming to the decision that Mr McGibbon’s death from pancreatic cancer was not war-caused. Mrs McGibbon cannot therefore succeed in her claim. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
The Tribunal has to decide whether Mr McGibbon’s death was war-caused pursuant to section 8(1) of the Veterans’ Entitlements Act 1986 (the Act).
This involves a decision regarding the kind of death pursuant to the standard of proof in section 120(4) of the Act, and a consideration of whether there is a reasonable hypothesis connecting the death of the Veteran with his war service (section 120 of the Act).
LEGISLATIVE ENVIRONMENT
The relevant legislation is the Veterans’ Entitlements Act 1986, in particular sections 8(1), 13, 120(4), and section 120.
Pursuant to section 13 of the Act, Mrs McGibbon, being the…

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: [2015] AATA 745
Decision Date: 24 September 2015

CaseChat Overview and Summary

McGibbon, the widow of a veteran, sought a review of a decision by the Veterans’ Review Board (VRB) which denied her claim for a widow’s pension. The VRB had ruled that the veteran's death from pancreatic cancer was not attributable to his war service. The applicant argued that the veteran's smoking and drinking habits, which began during his service, contributed to his pancreatic cancer. The matter was heard and determined by the Social Security and Child Support Tribunal of Australia.

The primary legal issue before the court was whether the veteran's death from pancreatic cancer was attributable to his service under section 8(1)(b) of the relevant Act. The court needed to determine if there was a causal connection between the veteran's service and his death, considering the evidence of smoking and drinking starting during his service, and if this connection was sufficient to satisfy the statutory criteria.

The Tribunal examined the evidence presented by Mrs McGibbon, including her testimony and medical reports. The Tribunal noted that the veteran was found to be free of any disabilities, including wounds, injuries or disease, both at enlistment and discharge. Dr Budak, the surgeon who treated the veteran, did not find a history of pancreatitis but suggested that the veteran might have had undiagnosed attacks of pancreatitis. The Tribunal concluded that the smoking and drinking habits, which began during the veteran's service, did not establish a causal link to his pancreatic cancer sufficient to attribute his death to his war service. Therefore, the Tribunal affirmed the VRB’s decision denying the widow’s pension.

The Tribunal affirmed the decision of the VRB, rejecting the claim for a widow’s pension.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

When considering the meaning of death arising of out or being attributable to service in section 8(1)(b) of the Act, I noted that the Full Court in Repatriation Commission v Law (1980) 47 FLR 57 considered the meaning of those words in the now repealed section 101(1)(b) of the Repatriation Act 1920. The Court said that arising out of, requires a consequential relationship of the incapacity or death with the service out of which it is said to arise. However, something less proximate than caused by or results from, will suffice, provided that it is not fanciful. When considering the words is attributable to, the Court in Law said:It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause to the incapacity or death in respect of which the claim is made. EVIDENCE AND CONSIDERATION Mrs McGibbon gave evidence before the Tribunal as well as providing written correspondence and comment upon the Respondent’s documents. I took into evidence letters she wrote to Members of the Veterans’ Review Board (the VRB), in 2014, and a letter she wrote to this Tribunal in March 2015, as well as what appeared to be one page of a letter to Dr Ulvi Budak from the VRB. I also had before me the section 37 Documents prepared by the Respondent. Mrs McGibbon’s evidence was that her husband did not smoke or drink before the War, but started doing so then, to be part of the mob. She said that after discharge, he could not settle, and joined the Merchant Navy for two years, which is when she met him. She told him that she would marry him if he got himself a shore job, so he joined the power company at Port Kembla, and then moved to the County Council. Mrs McGibbon told me that her husband stopped smoking in 1960. Mrs McGibbon said that her husband had severe abdominal pain for approximately two years before the diagnosis of pancreatic cancer, and relieved it by taking Mylanta, but would not go to the doctor. She said that when he finally went to the doctor and was referred to Dr Budak, (a surgeon described on his letterhead as Upper Gastrointestinal, Hepatobiliary & Laparoscopic Surgeon, Endoscopist), it was too late. APPLICATION OF THE LAWKind of death I noted that Mr McGibbon was medically examined both on enlistment and on discharge, and found to be free of any disabilities, including wounds, injuries or disease. Mrs McGibbon said that her husband had been suffering abdominal pain for a long time, and that it was relieved by taking sips of Mylanta. She said that he refused to go to the doctor, and by the time he did, in 2008, he was referred to Dr Budak. Dr Budak noted that Mr McGibbon was suffering prostate cancer diagnosed in 1995, and was being treated for melanoma excised from his back five years prior. Dr Budak stated that he did not obtain any history of pancreatitis. He said however, that it was possible Mr McGibbon may have had attacks of abdominal pain which may have been due to attacks of pancreatitis without proper diagnosis.

Decision

Reasons for decision

Accordingly those facts satisfy me beyond reasonable doubt that Mr McGibbon’s death was not war-caused. The claim must fail.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	VETERANS' APPEALS DIVISION
File Number	2015/0366
Re	Ivy McGibbon
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms G Ettinger, Senior Member
Date	24 September 2015
Place	Sydney