Mitchell and Repatriation Commission - [2013] AATA 654

[2013] AATA 654

Division VETERANS' APPEALS DIVISION

File Number

2011/5206

Re

Dorothy Mitchell

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 13 September 2013

Place Brisbane
The Tribunal sets aside the decision under review and substitutes its decision that the applicant is entitled to receive the widow’s pension and remits the matter of determining the date of effect of the decision to the Repatriation Commission.
.............................[SGD]...........................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Operational service with Australian Army - Death from ischaemic heart disease – Statements of Principles concerning depressive disorder (dysthymic disorder) and ischaemic heart disease – Clinical onset – Reasonable hypothesis of relationship to eligible war service raised - Death war-caused – Decision set aside
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6A, 7, 8, 11, 14,120, 120A
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission [2009] FCAFC 90
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning depressive disorder No. 27 of 2008[1]
[1] As amended by Instrument No. 40 of 2010 in a manner unrelated to this matter.
Statement of Principles concerning ischaemic heart disease No. 89 of 2007[2]
[2] As amended by Instruments No’d 43 of 2009, 96 of 2010 and 125 of 2011 in a manner unrelated to this matter.
REASONS FOR DECISION
Mr R G Kenny, Senior Member
13 September 2013
BACKGROUND

James Mitchell (“the veteran”) died on 17 January 1995 at the age of 81 years.

The applicant is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). On 18 March 2010, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission on 21 April 2010 and by the Veterans’ Review Board on 3 November 2011.
SERVICE
The veteran served in the Australian Army (“the army”) from 5 January 1942 until 18 July 1944 and this included service in the Middle East and New Guinea. All of his service constitutes eligible war service in the form of operational service in accordance with ss 7 and 6A, respectively, of the Act.
CAUSATION
In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:
(1) Subject to this section… for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b) the death of the veteran arose out of, or was attributable…

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 Mitchell and Repatriation Commission

Details

AGLC: Mitchell and Repatriation Commission [2013] AATA 654
Case: [2013] AATA 654
Decision Date: 13 September 2013

CaseChat Overview and Summary

The case of Mitchell and Repatriation Commission involved a claim for a widow's pension following the death of a veteran who had served in the Australian Army during World War II. The applicant argued that the veteran's death from ischaemic heart disease was war-caused and thus she was entitled to the pension. The Tribunal had to determine whether the death arose out of or was attributable to the veteran's eligible war service.

The central legal issue was whether the veteran's death from ischaemic heart disease was connected to his service in the war, specifically if there was a reasonable hypothesis that his war service caused his dysthymic disorder, which in turn led to his ischaemic heart disease. The Tribunal had to follow a specific procedure set out by the Federal Court, which required them to first consider whether the evidence raised a hypothesis connecting the condition with the war service, then determine if this hypothesis was reasonable in light of any relevant Statements of Principles, and finally decide if they were satisfied beyond reasonable doubt that the death was not war-caused.

The Tribunal found that the evidence did raise a hypothesis that the veteran's war service, including the stress and illnesses he experienced, contributed to his dysthymic disorder and subsequent ischaemic heart disease. This hypothesis was deemed reasonable as it fit within the framework provided by the relevant Statements of Principles. The Tribunal concluded that they were not satisfied beyond reasonable doubt that the veteran's death was not war-caused, thus the claim succeeded.

The Tribunal set aside the earlier decision and determined that the applicant was entitled to receive the widow's pension. The matter of determining the effective date of the pension was remitted to the Repatriation Commission for further consideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue for the Tribunal is whether the veteran’s death arose out of, or was attributable to, any eligible war service rendered by him. EVIDENCEThe veteran At the time of his enlistment, the veteran was medically examined and assessed as being “class one”.[8] He was in the Middle East from 10 October 1942 until January 1943 when his Battalion departed for Australia. En route, he experienced diarrhoea and he is recorded as having had amoebic dysentery as well as “secondary” anaemia and glossitis at that time.[9] He was hospitalised in Toowoomba until July 1943. Following a period of leave, the veteran embarked for New Guinea in August 1943 where he again became ill and was medically evacuated to Australia in November 1943. He remained in care until January 1944 before being reclassified medically to “B” which precluded him from tropical service.[10] He was then assigned to the Australian Translator and Interpreter Section but again became ill in March 1944 and was hospitalised with anaemia. He was medically classified “D” on 29 May 1944,[11] and was subsequently discharged in July 1944. [8] Exhibit 7, Annexure B.[9] Exhibit 7, Annexure F.[10] Ibid.[11] Exhibit 12, p. 53. In evidence was an undated letter[12] and a statement written by the veteran.[13] His letter describes his circumstances for the 12 months from October 1942 when he arrived in the Middle East. He referred to diarrhoea in November 1942 with light duties undertaken because of continuing bowel problems until January 1943. He also noted his return voyage to Australia in February 1943 when he again experienced bouts of diarrhoea with hospitalisation on return to Australia where he was treated for a blood deficiency and sore tongue, and was noted to have lost 3½ stone in weight. He described a period of leave in July/August 1943 before being transported to New Guinea where he again suffered from diarrhoea and sore tongue, and was repatriated to hospital in Australia. [12] Exhibit 1, T-Document 3, pp.19-20.[13] Exhibit 7, Annexure H. In his statement, he wrote that he had “never at any stage been drafted into a company” of his unit and that he found himself a reinforcement for over twelve months.The Applicant The applicant’s evidence at the hearing and in her written statements[14] was that she met the veteran in 1941 and that they married in February 1942. He was a “fun-loving man” and “good company” in those years. However, he had changed by the time he returned from the Middle East. His weight had reduced dramatically and he remained in hospital for some four or five months. Because of his difficulty in eating, he consumed a substance called Exephos which appeared similar to vegemite. She was shocked on learning that he was to serve in New Guinea as she believed he had not fully recovered his health. When he was discharged from the army, he had become a ghost of his former self in that he was very distant from her. She described a “faraway look” in his eyes and said he always “appeared to be down in the dumps” and unable to enjoy life. She described him as withdrawn and morose.[14] Exhibits 2, 3 and 4.

Decision

Reasons for decision

On the basis of those findings, none of the facts necessary to support the hypothesis raised by Mr Harding are disproved and no facts have been established which are inconsistent with that hypothesis. Accordingly, I am not satisfied beyond reasonable doubt that the Veteran’s death was not war-caused in accordance with s 8 of the Act. DECISION The Tribunal sets aside the decision under review and substitutes its decision that the applicant is entitled to receive the widow’s pension and remits the matter of determining the date of effect of the decision to the Repatriation Commission.

Ratio Decidendi

Legal Principle Established

Dr Palazzo completed a report dated 15 March 2012[23] and gave evidence. He is an historian with particular expertise in the circumstances of World War Two. He noted that the veteran enlisted voluntarily in January 1942 which was a short time after Japan entered the war. He described a high level of concern among the Australian public at that time and a strong response by young Australian men to enlist in the armed services. He noted that the veteran had not been engaged with the enemy while he was in the Middle East but that he may have had some contact with enemy forces, in the form of air raids by Japanese aircraft, after he had landed at Finchhaven in New Guinea. [23] Exhibit 7.PROCEDURE FOR CONSIDERATION The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[24](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 hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ... (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 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... 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.[24] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82–83.Step 1:- Hypotheses The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. Two hypotheses have been raised by Mr Harding: during service, the veteran experienced a stressor[25] and also suffered from a serious medical illness[26] which, individually, led to a clinically significant dysthymic disorder[27] from which he suffered from the time of his service; that his dysthymic disorder resulted in the clinical onset of ischaemic heart disease after 1975; and that his ischaemic heart disease was the cause of his death. [25] See factor 6(a)(vi) of the Statement of Principles concerning depressive disorder No. 27 of 2008.[26] See factor 6(a)(viii) of the Statement of Principles concerning depressive disorder No. 27 of 2008.[27] As provided for in the Statement of Principles concerning depressive disorder No. 27 of 2008.Step 2:- Statements of Principles

Division	VETERANS' APPEALS DIVISION
File Number	2011/5206
Re	Dorothy Mitchell
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	13 September 2013
Place	Brisbane