Neilsen and Repatriation Commission

Case [2000] AATA 83

DECISION AND REASONS FOR DECISION [2000] AATA 83

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No V99/799

VETERANS' AFFAIRS DIVISION )          

Re      Barbara Joy NEILSEN     

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Senior Member Dwyer       

Date10 February 2000

PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in substitution decides that the death of Mr Neilsen was war-caused within the meaning of that term in s 8 of the Veterans' Entitlements Act 1986.      

(Sgnd)  Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – death due to cerebrovascular accident – whether war-caused – whether material raises a reasonable hypothesis connecting death with service – smoking a factor in relevant SoP – concession that quantity and duration of veteran's smoking satisfied the requirements of the SoP – whether smoking habit was "service related" – applicant believes that veteran started smoking during naval service – enlisted at age 17 and had little money prior to service – cigarettes readily available to servicemen – consideration of "reasonable hypothesis" standard of proof – whether material raises or points to a reasonable hypothesis – hypothesis not fanciful, impossible, incredible or not tenable or too remote or too tenuous – whether SoP requirement that smoking be related to relevant service reflects the requirement of s 120(3) that there be a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran – role of assumptions in raising a reasonable hypothesis – decision set aside

Veterans' Entitlements Act 1986 ss 120(1) and (3)

Repatriation Act 1920 s 47(2)

Keeley v Repatriation Commission [1999] FCA 1103

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrnes v Repatriation Commission (1993) 116 ALR 210

Cooke v Repatriation Commission  (1997) 45 ALD 205

East v Repatriation Commission (1987) 74 ALR 518

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Bey (1997) 47 ALD 481

O'Brien v Repatriation Commission (1985) 155 CLR 422, 58 ALR 119

REASONS FOR DECISION

10 February 2000    Mrs Joan Dwyer, Senior Member             

  1. This is an application for review of a decision of the Repatriation Commission ("the Commission"), made 18 August 1997 and affirmed 14 May 1999, which decided that the death of Mr Neilsen was not war-caused within the meaning of that term in the Veterans' Entitlements Act 1986 ("the Act").

  2. At the hearing, Mr A Smith, a solicitor, appeared for the applicant.  Mr K Rudge, an advocate with the Department of Veterans' Affairs ("DVA"), appeared for the Commission.

  3. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibit tendered during the hearing, being the transcript of the Veterans' Review Board ("the VRB") hearing.  Mrs Neilsen gave evidence.

  4. Mr Neilsen died at age 68 on 8 November 1996.  His death certificate gives the cause of death and duration of last illness as follows (T9 p57):

    Bronchopneumonia – days;
    Cardiac Failure – days
    Left Cerebrovascular Accident – weeks

  5. Mr Neilsen…

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AGLC
Neilsen and Repatriation Commission [2000] AATA 83
Case
[2000] AATA 83
Decision Date

CaseChat Overview and Summary

The case of Neilsen and Repatriation Commission concerned the issue of whether the death of Mr Neilsen, who had a history of smoking, was attributable to his military service under the Repatriation Act. The Federal Court of Australia was tasked with determining whether Mr Neilsen's smoking habit was initiated during his service and if this contributed to his death from a cerebrovascular accident. The primary legal issue revolved around establishing a causal link between Mr Neilsen's smoking and his military service, specifically whether there was sufficient evidence to raise a reasonable hypothesis that his smoking was service-related.

The Court reviewed the evidence presented and the reasoning of the Tribunal that had previously dismissed the claim. It was noted that Mrs Nielsen provided evidence indicating that Mr Neilsen started smoking during his service, pointing to factors such as the ready availability of cigarettes, peer pressure, and the stresses of military life. The Tribunal had required direct evidence to establish the cause of Mr Neilsen's smoking, a standard the Court found to be too stringent. The Court referenced previous cases, including Smith and Cooke v Repatriation Commission, to support the proposition that a reasonable hypothesis could be formed from circumstantial evidence and assumptions based on common knowledge and the context of the era.

The Court held that the evidence before the Tribunal did indeed raise a reasonable hypothesis that Mr Neilsen's smoking was initiated during his service due to the circumstances of his military life and the societal norms of the time. Given that Mr Neilsen smoked upon discharge and there were plausible reasons to assume he started during service, the Court concluded that the Repatriation Act's provisions were satisfied. Consequently, the Court found that Mr Neilsen's death by cerebrovascular accident was a war-caused death and allowed the appeal.

The Court's decision ultimately mandated that Mr Neilsen's widow was entitled to benefits under the Repatriation Act due to the causal link established between his service and his smoking, which contributed to his death.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In Smith the evidence of Mrs Smith was that her husband had started smoking during service, but the only circumstance of service on which she relied was peer pressure. The Tribunal referred to Cooke v Repatriation Commission (1996) 45 ALD 205 as authority for the view that there must be "sufficient material before the Tribunal to establish" a connection between smoking and service. It stated in paragraph 17 of its reasons, as quoted by Heerey J:The Tribunal accepts that the passage of time would have somewhat diminished her recollection, but nevertheless her evidence in relation to the cause of her deceased husband's smoking is deficient. The applicant was able to give very little evidence in relation to the deceased service life as she said he spoke very little about it, and was only able to comment about the long marches that he was required to undertake. There was no evidence about stress, peer pressure, or other influencing factors that may have caused him to take up smoking as was the situation in the other cases to which the Tribunal was referred in relation to this issue. Heerey J allowed the appeal. He held that a reasonable hypothesis does not require evidence at every point but "can, in appropriate circumstances, be raised by assumption". He added at paragraphs 17 and 18:Mrs Smith's own comment that young men "sort of copy each other, don't they?" seems a valid observation on the human condition. The veteran at the relevant time was about 19 or 20, placed in an army camp in close proximity to other young men in an era when smoking was widespread and its dangers not appreciated even by medical experts. These were circumstances bearing on the instant case and not matters of theory, abstraction or speculation.The Tribunal erred in holding in effect that the causative element of the hypothesis was not raised because there was no direct evidence establishing it. In this matter Mrs Nielsen pointed only to the ready availability of cigarettes on service as a reason why her husband might have started smoking. Her statement also refers to peer pressure and stresses of service life although Mrs Nielsen conceded that she had no knowledge of those matters. The comments of Heerey J in Smith are equally applicable to this matter:The veteran at the relevant time was about [18-23], placed in [the Navy] in close proximity to other young men in an era when smoking was widespread and its dangers not appreciated even by medical experts. These were circumstances bearing on the instant case and not matters of theory, abstraction or speculation. The evidence establishes that Mr Nielsen was young and had little money to spend when he enlisted, and that he smoked on discharge. Mrs Nielsen's evidence raises possibilities or assumptions of ready availability of cigarettes during service, peer pressure, a change of milieu to life in a ship and the commencement of smoking during service. I must apply the steps laid down by the Full Court in Deledio and the comments of Heerey J in Smith. The material before the Tribunal does raise a reasonable hypothesis that Mr Neilsen started to smoke during his Naval service due to the ready availability of cigarettes to servicemen, and due to his distance from parental supervision and perhaps also due to other factors which can be assumed such as peer pressure and change of milieu. Thus s 120(3) of the Act is satisfied. I cannot be satisfied beyond reasonable doubt, under s 120(1), that Mr Nielsen did not start to smoke at some time during his relevant service. Therefore I must find, under s 120(1), that the material raises a reasonable hypothesis that his smoking was service related. Applying the relevant SoP, I find that Mr Neilsen's death by cerebrovascular accident was a war-caused death.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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