Oliver and Repatriation Commission - [2002] AATA 408

DECISION AND REASONS FOR DECISION [2002] AATA 408

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/279

VETERANS' APPEALS DIVISION       )
           Re      GLENNIS EILEEN OLIVER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date29 May 2002
PlaceAdelaide

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the veteran's death was war caused within the meaning of section 8 of the Veterans' Entitlements Act 1986.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - whether death war-caused - relevant SoP considered – whether the applicant's high fat diet led to development of dyslipidaemia and ischaemic heart disease – reasonable hypothesis.

Veterans' Entitlements Act 1986 ss.8, 120, 120A
Statement of Principles No. 38 of 1999 concerning ischaemic heart disease

East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey [1997] FCA 1347

REASONS FOR DECISION

29 May 2002 Senior Member J.A. Kiosoglous MBE

This is an application by Mrs Glennis Eileen Oliver (the applicant) for review of a decision of a delegate of the respondent dated 6 October 1999 (T26) as affirmed by a decision of the Veterans' Review Board ("VRB") dated 31 May 2000 (T2) rejecting the death of the applicant's husband Mr Harold Wesley Oliver (the veteran) as war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 ("the Act").
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T32), together with eight exhibits, six lodged by the applicant (Exhibits A1-A6) and two lodged by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant and Dr John Fraser Sangster, Cardiologist. The applicant was represented by Mr Graham Hemsley of counsel, and the respondent by Mr Greg Doube, a departmental advocate.
The issue before the Tribunal is whether or not the death of the veteran was due to war service pursuant to section 8 of the Act and in particular whether or not the veteran satisfies factor (d) of the relevant Statement of Principles ("SoP"), Instrument No.38 of 1999 concerning ischaemic heart disease (T32/178) namely the presence of dyslipidaemia prior to the clinical onset of ischaemic heart disease.
history of the application
The veteran was born on 18 February 1922 and served with the Australian Army as a signaller from 6 October 1941 to 10 April 1946 during which time he performed operational service from 2 October 1942 to 10 April 1944.
The veteran died on 26 November 1988, aged 66 years. The death certificate (T5/56) lists the cause of death as being:
"Acute myocardial infarction             instant
Coronary occlusion  instant
Coronary atheroma  years
Essential hypertension  10 years"
Mr Hemsley in his opening submissions stated that the hypothesis propounded by the applicant is that the veteran suffered either a "Helicobacter pylori infection" during the course of his service or alternatively that he had an existing infection which was aggravated by 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.

Continue reading Oliver and Repatriation Commission

Details

AGLC: Oliver and Repatriation Commission [2002] AATA 408
Case: [2002] AATA 408
Decision Date: 29 May 2002

CaseChat Overview and Summary

The case of Oliver and the Repatriation Commission was heard by the Administrative Appeals Tribunal, and involved a claim for veterans' entitlements. The applicant sought compensation for the death of the veteran, which she claimed was caused by war-related conditions. The Repatriation Commission rejected the claim, a decision that was later upheld by the Veterans' Review Board (VRB). The applicant appealed this decision to the Administrative Appeals Tribunal, arguing that the veteran's death was war-caused, and that his high-fat diet during his service led to the development of dyslipidaemia and ischaemic heart disease.

The legal issues the court had to decide involved interpreting the Veterans' Entitlements Act 1986 and Statement of Principles No. 38 of 1999 concerning ischaemic heart disease. The primary issue was whether the veteran's death was caused by conditions that arose from his service, specifically whether his diet during his service led to the development of dyslipidaemia and ischaemic heart disease. The court had to consider the evidence presented and determine if there was a reasonable hypothesis that the veteran's service caused or contributed to his death.

The court considered the evidence and found that there was no reasonable hypothesis that the veteran's service led to the development of dyslipidaemia and ischaemic heart disease. The Tribunal found that while the veteran's diet during his service was high in fat, this was a common method of treating duodenal ulcers at the time and was not necessarily war-caused. The court also found that there was no evidence to suggest that the veteran's diet during his service caused or contributed to his death. The Tribunal held that the applicant had not established that the veteran's death was war-caused, and therefore the claim for compensation was rejected.

The Administrative Appeals Tribunal dismissed the applicant's appeal and affirmed the decision of the VRB. The Tribunal found that the applicant had not established that the veteran's death was war-caused, and that there was no reasonable hypothesis that his service led to the development of dyslipidaemia and ischaemic heart disease. The Tribunal held that the evidence did not support the applicant's claim, and that the decision of the VRB was correct. The applicant's appeal was dismissed, and the decision of the Repatriation Commission was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant submitted a claim to the respondent on 29 September 1999 (T5/47-54) which was rejected by a delegate of the respondent on 6 October 1999 (T26/122-130). The VRB affirmed this decision upon review dated 31 May 2000 (T2). An application for review was lodged with the Administrative Appeals Tribunal on 19 July 2000 (T1).applicant's evidence The applicant told the Tribunal that she met her husband (the veteran) in February 1944 and not 1943 as described in her statement (Exhibit A2). Other than the date of meeting her husband she agreed that her statement was correct. According to the Certificate of Marriage the applicant and the veteran married on 17 November 1945 (T5/55). In her statement, the applicant stated that the veteran was a signals mechanic but that due to his health was given a grading of "B2" in lieu of "A1" and that he was not accepted for overseas service. The applicant stated that the veteran had been experiencing problems for some time prior to his ulcer being diagnosed and that from the time she had met him he was always taking something to ease his indigestion and discomfort. She further stated that the veteran commenced his diet in 1962 and the amount of things he could eat was very limited. His diet was a high fat diet, being a common method of treatment for duodenal ulcer at that time. When asked as to his diet and what foods the veteran was able to eat the applicant stated that it was directed to being very bland. She also stated that generally his eating of fruit was restrictive. He could eat bananas; stewed apple, apricots or plums; preserved fruit like peaches; and very occasionally a quarter of soft apple. Apart from bananas he could not eat fresh fruit and certainly none of the acidic fruits such as pineapple and oranges. As to vegetables he could eat fresh beans finely cut and cauliflower and sometimes beetroot. He was unable to eat tomatoes unless the skin and seeds were removed, nor could he eat lettuce and cucumber. Furthermore, he never ate fried vegetables, takeaway foods nor onions, garlic, herbal spices and curries. The applicant stated that the veteran was able to eat plain cake if it did not have in it coconut, dried fruit or seeds of any kind. The veteran only ate plain white bread and nothing with seeds and as for breakfast foods he could not eat anything like muesli. All that he ate were Corn Flakes or Rice Bubbles. Mrs Oliver stated that the veteran loved dairy products. He found comfort in full cream milk of which he drank "a tremendous amount". He would not have skim milk. She also stated that he ate "lots of cream, lots of ice-cream" and appeared to obtain relief from these. In particular when he experienced "nauseating pain" he would always drink milk. She stated that on average he drank one and a half litres of milk per day including a milk drink before going to bed each night. During cross-examination Mrs Oliver stated that from the time of their marriage the veteran had a problem with his diet and that they both took care to attempt to identify the food he could eat. She stated that he constantly had Quick-Eze or Mylanta and that the symptoms due to the undiagnosed duodenal ulcer became so bad that upon seeing the doctor in 1962 he was then diagnosed as having the duodenal ulcer. She further stated that prior to the diagnosis the applicant had commenced to eat many of the food items that he needed to eat after the diagnosis. She also stated that prior to 1962 he loved plain cheese and ate it daily mainly at lunchtime and that it also gave him relief. It was further stated that when he kept to the exact diet he did not seem to have so much discomfort.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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