Moore and Repatriation Commisssion

Case [2001] AATA 170

DECISION AND REASONS FOR DECISION [2001] AATA 170

ADMINISTRATIVE APPEALS TRIBUNAL           )

)         No N1999/586

VETERANS' APPEALS  DIVISION )         
          Re      RONALD MOORE      
  Applicant
          And     REPATRIATION COMMISSION         
  Respondent

DECISION

Tribunal        Ms G Ettinger  Senior Member

Date7 March 2001

PlaceSydney

Decision        The Administrative Appeals Tribunal sets aside that part of the decision of the Repatriation Commission dated 22 August 1998 as affirmed by the Veterans' Review Board on 17 February 1999, rejecting the Applicant Mr Ronald Moore's condition of chronic airflow limitation pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution for that part of the decision set aside, the Tribunal finds that the Applicant's condition of chronic airflow limitation was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The remaining parts of the decision including the claim by Mr Moore for osteoarthrosis of the left ankle are affirmed. The Tribunal remits the question of assessment of the rate of pension to the Repatriation Commission for determination taking into account the above-made findings.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veteran - operational service - whether smoking increased in stressful situation in posting in Malaya - whether veteran meets requirements of the SoPS – chronic airflow limitation war-caused - osteoarthritis left ankle not war-caused as SoP for gout not satisfied; causal connection not made.

LEGISLATION
Veterans' Entitlements Act 1986 ss9, 120(1), 120(3) and 120A

STATEMENT OF PRINCIPLES
Repatriation Medical Authority Statement of Principles No. 73 of 1997 Concerning Chronic Bronchitis and Emphysema
Repatriation Medical Authority Statement of Principles No.88 of 1997 Concerning Gout
Repatriation Medical Authority Statement of Principles No.11 of 2000 Concerning Gout
Repatriation Medical Authority Statement of Principles No. 41 of 1998 Concerning Osteoarthrosis

CASES
Brown v Repatriation Commission [2000] AATA 1118
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cook v Repatriation Commission [2000] FCA 1756
Deledio v Repatriation Commission (1997) 47 ALD 261
George Hudson Limited v Australia Timber Workers' Union (1923) 32 CLR 413
J R Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Olsen v Repatriation Commission [2000] AATA 909
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v McKenna (1998) FCA 787
Re Reading v Repatriation Commission [2000] AATA 841
Re Ryan v Repatriation Commission [2000] AATA 849
State of New South Wales v McMullin (1997) 73 FCR 246
Zoarder v Department of Social Security (1998) 26 AAR 342

REASONS FOR DECISION

7 March 2001     Ms G Ettinger Senior Member

  1. The application before the Administrative Appeals Tribunal ("the Tribunal") was to review those parts of the decision of the Repatriation Commission dated 22 August 1998 (T2) which concerned chronic airflow limitation and osteoarthrosis of the left ankle as affirmed in part by the decision of the Veterans' Review Board ("VRB") of 17 February 1999 (T25).

  2. The Repatriation Commission, in its primary decision, had held that benign prostatic hypertrophy, bilateral sensorineural hearing loss, chronic airflow limitation…

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Moore and Repatriation Commisssion [2001] AATA 170
Case
[2001] AATA 170
Decision Date

CaseChat Overview and Summary

In the matter of Moore and Repatriation Commission, the veteran, Ronald Moore, challenged the decision of the Repatriation Commission and Veterans' Review Board concerning his entitlement to a war-caused pension. Specifically, the veteran argued that his chronic airflow limitation and osteoarthritis of the left ankle were war-caused. The Administrative Appeals Tribunal was tasked with determining whether the veteran's conditions met the requirements set out in the relevant Statements of Principles (SoP) for gout and osteoarthritis.

The primary legal issue was whether the veteran's chronic airflow limitation and osteoarthritis of the left ankle were causally connected to his war service, thus qualifying as war-caused conditions under the applicable SoP. The Tribunal needed to establish if the veteran's conditions fulfilled the criteria stipulated in the relevant SoP, particularly concerning gout and osteoarthritis.

The Tribunal found that the veteran's chronic airflow limitation was war-caused, reversing the previous decisions. However, it upheld the rejection of the veteran's claim for osteoarthritis of the left ankle, as the causal connection to war service was not established. The Tribunal relied on the principle that a veteran must satisfy all elements of the relevant hypothesis concerning the war-causation of a condition. As the SoP for gout did not support a causal link between gout and osteoarthritis, the claim for the latter condition was dismissed. The Tribunal also considered the submissions of both parties and relevant case law, concluding that the SoP current at the time of the Repatriation Commission decision should apply.

The Tribunal set aside the rejection of the veteran's chronic airflow limitation as war-caused and remitted the matter to the Repatriation Commission for reassessment of the pension rate. The decision regarding the osteoarthritis of the left ankle was affirmed, and no further orders were made in that respect.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Moore gave oral evidence before the Tribunal.EVIDENCE OF THE APPLICANT MR RONALD MOORE Mr Moore said in evidence that he enlisted in the Royal Australian Air Force on 7 July 1948 and prior to enlisting he had not smoked, but tried a cigarette as a young boy. Mr Moore said that he started smoking in 1949 when he was posted to Lithgow to break up a coalminers strike. The Applicant gave evidence that the situation that he found himself in was very hostile and he was frightened about what could happen to him. He said that he started smoking to relieve the stress. I noted that in his written statement (Exhibit A1), Mr Moore said that he:"… thought the situation to be extremely tense, the coalminers treated us as strike breakers, swearing at us, spitting at us and throwing things at us if ever we came into contact with them … It was my perception that we could not go into Lithgow proper for fear of being assaulted by the coalminers." Mr Moore gave evidence that during this period his smoking varied but that he was smoking approximately five to ten cigarettes per day, four days per week. The Applicant said that after he left Lithgow he reduced his level of smoking and smoked an estimated ten cigarettes per day. Mr Moore said that he could not smoke while he drove because he was working as an RAAF transport driver, but would smoke in the mornings and evenings. When questioned as to whether his smoking habits varied, Mr Moore said that he played a lot of sport at the time and as a result would not smoke during the training, which lasted for approximately two months during winter. Mr Moore said that there were no other variations in his smoking habits during his period of service. He gave evidence however that when he was posted to Malaya in 1953, his smoking increased considerably. He said that his duties involved making transport trips through Malaya, and that he was required to guard the airfield where he was stationed along with other men. They were equipped with a loaded rifle and bayonet he said. Mr Moore said that while he did not see actual action, he was told that there were terrorist forces in the area and this had made him very tense and frightened. In this respect, I noted that in his statement at Exhibit A1 he said that he:"… had been informed by some of my fellow servicemen that there were "terrorist" or "bandits" in the area and this caused me to be extremely nervous." The Applicant said that during this time, he smoked over 50 cigarettes a day in order to settle his nerves. He also said that the cigarettes were readily obtainable and cost the equivalent of 20 cents from the canteen on the airfield. He said that in addition he was given coupons, which enabled him to get two ounces of tobacco per week. I further noted that Mr Moore stated in his statement at Exhibit A1 that:"While I am unable to state exactly how many cigarettes I was smoking at that time, it is my view that my smoking increased three or four fold after being in Malaya for about one month. I can say that I did, on many occasions, consume at least forty to sixty cigarettes per day."

Decision

Reasons for decision

In applying sections 120(1) and 120(3), I was satisfied beyond reasonable doubt that there was no sufficient ground to determine that the osteoarthrosis Mr Moore suffered in his left ankle was causally connected with Mr Moore's gout within the terms of the SoP, and hence his war service. The arguments made about aggravation could not be sustained. I was convinced beyond reasonable doubt that no causal connection could be made, and that his claim must fail.DECISION The Tribunal sets aside that part of the decision of the Repatriation Commission dated 22 August 1998 as affirmed by the Veterans' Review Board on 17 February 1999 rejecting the Applicant Mr Ronald Moore's condition of chronic airflow limitation pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution for that part of the decision set aside, the Tribunal finds that the Applicant's condition of chronic airflow limitation was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The remaining parts of the decision including the Applicant's claim for osteoarthrosis of the left ankle are affirmed. The Tribunal remits the question of assessment of the rate of pension to the Repatriation Commission for determination taking into account the above-made findings.I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ettinger.Signed: ..................................................................................... AssociateDate/s of Hearing 13 June 2000 Written Submissions Finalised 7 December 2000 Date of Decision 7 March 2001Counsel for the Applicant Mr C Colborne Solicitor for the Applicant Mr B Williams Advocate for the Respondent Ms S Breuer/Ms P Hook

Ratio Decidendi

Legal Principle Established

I considered the submissions of both parties and took into account Keeley (supra), and the other decided cases on point which are discussed above. I found that the Applicant's rights accrued at the time of the Repatriation Commission decision. Notwithstanding that the Act concerned is beneficial legislation, I was not persuaded by Mr Colborne's submissions, and held that I was bound to apply the SoP current at the time of the Repatriation Commission decision in this case. I was mindful that any injustice which might be perceived through the application of the SoP applied at the time of the Repatriation Commission decision, which was said to be less favourable to Mr Moore than the later one, could always be redressed by lodging a further claim if necessary. I was, of course, not unaware of the inconvenience and cost of doing so, but my duty is to apply the law as it stands. Therefore, I found that the SoP Instrument No. 88 of 1997 concerning Gout applied in Mr Moore's case, and proceeded to consider whether his osteoarthrosis of the left ankle, applying Instrument No.41 of 1998, was war-caused pursuant to the legislation.CONSIDERATION OF MR MOORE'S OSTEOARTHROSIS OF THE LEFT ANKLE PURSUANT TO SOP INSTRUMENT NO.41 OF 1998 AND GOUT PURSUANT TO INSTRUMENT NO.88 OF 1997 Mr Colborne submitted as follows: Ms Hook for the Respondent submitted that in reliance on the Full Federal Court decision of McKenna v Repatriation Commission (1999) 86 FCR 144, there was a SoP in place dealing with each element of the hypothesis raised by the Applicant in connection with his osteoarthrosis of the left ankle, and that to be successful, each would have to be satisfied. I was mindful that Goldberg J in his decision Repatriation Commission v McKenna (1998) FCA 787 stated that: "The fundamental and vitiating error into which the Tribunal fell was that it accepted that the hypothesis involved the step that the respondent's hypertension was related to his operational service and led in turn to the two diseases and accepted that the hypothesis was upheld by the relevant Statement of Principles without determining whether the relevant Statement of Principles upheld the proposition that hypertension was related to operational service. The Tribunal failed to ask, and answer, the question whether the whole of the hypothesis was upheld by relevant Statement of Principles." Their Honours in McKenna (supra) upheld the decision of Goldberg J. They found that:"Having concluded that it was necessary to identify whether there is in force a Statement of Principles which upholds the whole, and not just part of the relevant hypothesis, Goldberg J concluded that it was fatal to Mr McKenna's claim that "there was no Statement of Principles which upholds the hypothesis that there is a factor which exists which indicates that a reasonable hypothesis has been raised connecting hypertension with the circumstances of operational service."" I respectfully consider myself bound by McKenna (supra), mindful that in Mr Moore's case the relevant Instruments were No.88 of 1997 concerning Gout and No.41 of 1998 concerning Osteoarthrosis. I was also mindful that to be successful in his claim to have his osteoarthrosis of the left ankle accepted as war-caused, Mr Moore would therefore first have to satisfy the requirements of the SoP concerning Gout.