Oldacres-Dear and Repatriation Commission - [2012] AATA 818

[2012] AATA 818

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/4598

Re

PHILIP OLDACRES-DEAR

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
The Hon Robert Nicholson, Deputy President

Date 15 November 2012

Place Perth
Decision Summary
1.The decision of the Veteran’s Review Board dated 7 October 2011 is set aside.
2.The Tribunal substitutes a decision that the applicant’s diabetes mellitus is related to his service.

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The Hon Robert Nicholson, Deputy President
CATCHWORDS
Catchwords
REPATRIATION PENSION– incapacity arising out of or attributable to service – veteran contracting diabetes mellitus – enlisted aged 15 years and commencing smoking prior to age 16 – whether requirement of Statement of Principles established – whether smoking defence-caused.
LEGISLATION
Legislation
Veteran’s Entitlement Act 1986, ss9, 196B.
CASES
Cases
Roncevich and Repatriation Commission (2005) 222 CLR 115.
SECONDARY MATERIALS
Secondary Materials
Statement of Principles No 90 of 2011
REASONS FOR DECISION
The Hon Robert Nicholson, Deputy President
15 November 2012

The principal issue raised by this application is whether the applicant’s diabetes mellitus arose out of or was attributable to his service or was contributed to in a material degree by, or was aggravated by, that service, specifically by his smoking during that service while he was aged between 15 and 18. The applicant claims that it was so caused and therefore seeks review of a decision to the contrary effect made by the Veteran’s Review Board on 7 October 2011.
RELEVANT REQUIREMENTS OF THE LAW
At the time of the applicant’s enlistment as an apprentice on 7 January 1975, s70(1) of the Veterans’ Entitlements Act 1986 (Cth) (‘VEA’) provided that the Commonwealth was liable to pay a pension by way of compensation to a member of the armed forces who had become incapacitated from ‘a defence-caused’ injury. Sub-section (5)(a) provided that an injury was to be taken to be a defence-caused injury if it arose out of, or was attributable to, any defence service of the member.
In Roncevich and Repatriation Commission (2005) 222 CLR 115 it was held that a tribunal should ask whether the injury arose out of, or was attributable to, any defence service of the soldier. In particular that ‘defence-caused’ should be given a broad meaning and is not necessarily to be circumscribed by considerations such as whether the relevant act of the claimant was one that he was obliged to do as a soldier.
The provisions of the VEA (as amended) both at the date of the applicant’s claim (28 January 2011) and now are identical. In s 70(1) each VEA provided (relevantly) for liability in the Commonwealth where a member of the Forces is incapacitated from a defence-caused injury. In the case of the incapacity of the member, the liability is to pay pension by way of compensation in accordance with the VEA. Section 9 now relevantly provides that an injury suffered by such a veteran shall be taken to be a defence-caused if it ‘arose out of, or was attributable to, any eligible war service.’ Section 196B(14) also provides…

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 Oldacres-Dear and Repatriation Commission

Details

AGLC: Oldacres-Dear and Repatriation Commission [2012] AATA 818
Case: [2012] AATA 818
Decision Date: 15 November 2012

CaseChat Overview and Summary

In the case of Oldacres-Dear and Repatriation Commission, the primary dispute was whether the applicant's type 2 diabetes mellitus was attributable to his military service, thus qualifying for a repatriation pension. The applicant, who enlisted in the Royal Australian Air Force at the age of 15, claimed that his service led to his condition due to the environment at the base which fostered smoking. The Repatriation Commission contested this assertion, arguing that the diabetes was more likely attributable to the applicant's smoking habits that began prior to his enlistment. The Federal Court of Australia was tasked with determining the validity of the applicant's claim.

The central legal issue before the court was whether the applicant's diabetes mellitus was attributable to his military service, specifically whether the environment at the base contributed to his smoking habit and subsequently to his condition. Additionally, the court needed to decide if the applicant's smoking was influenced by his service, despite the prohibition on smoking for apprentices under 18 years of age. The court also had to consider whether the availability of cigarettes at the base despite the prohibition could be seen as part of the service conditions that contributed to the applicant's smoking habit.

The court examined the evidence and found that the applicant's enlistment and service conditions, combined with the availability of cigarettes at the base, created an environment that likely contributed to his smoking habit. The court held that the applicant's service, despite the absence of direct encouragement to smoke, played a significant role in his becoming a smoker, which in turn led to his diabetes mellitus. This connection between the service and the condition met the requirement of Statement of Principles No. 90 of 2011. Consequently, the court concluded that the applicant's diabetes mellitus was attributable to his military service.

The court ordered that the decision of the Veterans’ Review Board of 7 October 2011 should be reviewed and the application for acceptance of the applicant’s diabetes mellitus as service-related should be granted. This decision acknowledges the impact of the service environment on the applicant’s health and allows for the appropriate pension benefits to be considered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Par 4 provides that the basis for determining the factors is that diabetes mellitus can be related to relevant service rendered by veterans or members of the Forces under the VEA or members under the Military Rehabilitation and Compensation Act 2004 (Cth) (‘MRCA’). “Relevant service’ is defined in Par 9 to mean eligible war service (other than operational service) under the VEA or defence service (other than hazardous service) under the VEA or peacetime service under the MRCA. It has not been contended for the respondent that the applicant was not engaged in eligible war service.EVIDENCE The applicant enlisted on 7 January 1975 as an apprentice in the Royal Australian Air Force. He served in the Royal Australian Air Force until 6 January 1984 and in the Royal Australian Navy from 14 May 1985 to 13 March 1989. The applicant was aged 15 years on his enlistment. A psychologist’s view of the applicant given on 3 September 1974 was that he was ‘a bit boyish – fair hair – neatly dressed.’ On the same date a recruiting officer found him to be ‘a very keen young fellow’ with ‘a liking to weapons and armament duties.’ At the date of his enlistment the applicant weighed only 49kgs and was 164 cms (5’4.1/2”) tall.Smoking: The applicant’s evidence is that some time into 1975 he commenced smoking and gradually increased this until he was smoking 10-12 cigarettes per day until 1977. Around then he advanced to a packet of 20 cigarettes per day and by 1981 he was smoking 25 cigarettes per day. From 1983 to 2005 he smoked 20-25 cigarettes per day. In 2006 he ceased smoking. It was in 2010 that his diabetes mellitus manifested itself clinically. It is common ground that the diabetes is type 2. The respondent contended that it was more probable than not that the applicant commenced smoking when he was aged 16 years. The applicant firmly adhered to his recollection of having commenced before he attained the age of 16 years. I accept his evidence on that fact. Upon enlistment apprentices were subject to certain conditions of service which had been agreed upon when the apprentice training scheme was established at RAAF Wagga. Part of those terms and conditions included a provision in the following terms under the heading ‘accommodation’:“Apprentices are accommodated separately from men….Consumption of intoxicating liquor by apprentices is prohibited on or off duty. Permission to smoke while off duty may be given to apprentices above the age of eighteen.’ The respondent stated that it had no issue that cigarettes were available notwithstanding those rules. At the time of the applicant’s enlistment the Juvenile Smoking Suppression Act of 1903, No 11 (‘JSS Act’) was in force in the New South Wales, in which Wagga is located. It provided that:‘any dealer in tobacco, cigars, or cigarettes, and any licensed tobacconist, or other person who supplies any person actually or apparently under the age of sixteen years with tobacco in any shape or form, cigars, or cigarettes, shall be liable to a fine not exceeding ten dollars.’‘Boredom’:

Decision

Reasons for decision

I accept that in contrast with the circumstances in Roncevich, there is not here evidence of expectation of smoking as part of service. However, even the absence of that evidence does not preclude the link with service arising in other ways. Here the link comes from the maintenance by the RAAF of ready and continuing supply of cigarettes as part of life at the base. That, coupled with the applicant’s work at the base and its affect upon him, resulted in the circumstances of his service occasioning him to become a smoker.CONCLUSION For the above reason I conclude that the applicant’s evidence establishes the factor in SOP No 90 of 2011 so that his diabetes mellitus is shown to be connected with his eligible war service. His injury by diabetes mellitus is therefore established as having arisen out of or been attributable to any eligible war service rendered by the applicant or as being related to his service because of the contribution to a material degree of his service or the aggravation from that service. I therefore consider that the application for review of the decision of the Veterans’ Review Board of 7 October 2011 should be allowed and his application for acceptance of his diabetes mellitus as service related be granted.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4598
Re	PHILIP OLDACRES-DEAR
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	The Hon Robert Nicholson, Deputy President
Date	15 November 2012
Place	Perth