Phyllis Booth and Repatriation Commission - [2012] AATA 871

[2012] AATA 871

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/1257

Re

Phyllis Booth

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms N Bell, Senior Member
Dr W Isles, Member

Date 11 December 2012

Place Sydney
The Tribunal affirms the decision under review.
.....[Sgd]...................................................................
Ms N Bell, Presiding Member
CATCHWORDS
VETERANS ENTITLEMENTS – claim for war widow’s pension – operational service – whether veteran’s service led to smoking increase – no reasonable hypothesis raised – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 120, 120A
CASES
Byrnes v Repatriation Commission (1993) 177 CLR 564
Martin v Repatriation Commission [2012] AATA 744
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stares (1996) 66 FCR 594
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles No 89 of 2007
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr W Isles, Member
11 December 2012

Phyllis Booth is the widow of the late Graham Booth, a veteran who had operational service in Vietnam from 13 March 1968 to 5 February 1969. He served in the Royal Australian Air Force from 14 August 1957 to 7 November 1975.
Mr Booth died on 26 July 2010. There is no dispute that the kind of death was ischaemic heart disease.
Mrs Booth hypothesised that Mr Booth’s ischaemic heart disease was caused by cigarette smoking. She relied on Statement of Principles 89 of 2007, concerning ischaemic heart disease. In particular, Mrs Booth relied on factor 6(h) which applies when a person has not ceased smoking prior to the clinical onset of ischaemic heart disease and:
(a)smoked an average of at least five cigarettes per day for at least the one year before the clinical onset of ischaemic heart disease; or
(b)smoked at least one pack year before the clinical onset of ischaemic heart disease.
There was considerable inconsistency in the material before us as to whether Mr Booth ever smoked at all. He had completed a claim form in which he denied ever smoking and had also described himself as a non-smoker to his treating medical practitioners. The Repatriation Commission also contended that the material does not point to a connection between Mr Booth’s smoking and his operational service.
We must consider whether Mr Booth’s ischaemic heart disease was caused by his operational service. In doing so we must apply the standard of reasonable hypothesis, in this case, by identifying the applicable Statement of Principles (SoP), in this case SoP No. 89 of 2007 concerning ischaemic heart disease. We must consider whether any hypothesis raised by the material before us conforms with one of the factors in the SoP and if so, whether that factor was related to his operational service. If so, then we must consider whether we are satisfied, beyond reasonable doubt, that the condition is not war-caused.
In so doing we will follow the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
The issues for us to consider are whether the material before us points to:

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 Phyllis Booth and Repatriation Commission

Details

AGLC: Phyllis Booth and Repatriation Commission [2012] AATA 871
Case: [2012] AATA 871
Decision Date: 11 December 2012

CaseChat Overview and Summary

Phyllis Booth sought a war widow’s pension under the Veterans’ Entitlements Act 1986, claiming that her husband's operational service led to an increase in his smoking. The Repatriation Commission rejected the claim, a decision which was reviewed by the Social Security Appeals Tribunal. The Tribunal upheld the Commission's decision, finding that there was insufficient evidence to support a reasonable hypothesis that the husband's service led to an increase in smoking. The applicant appealed to the Administrative Appeals Tribunal. The AAT was required to determine whether the evidence provided was sufficient to support a reasonable hypothesis that the husband's operational service led to an increase in his smoking. This involved examining the material before the Tribunal, including statements from the husband and wife, medical records, and the wife's own admissions about the uncertainty of her recollections.

The Tribunal found that while there were inconsistencies in the evidence provided, there was some indication that the husband had been smoking since at least 1952 and continued until his heart attack in 1990. However, the Tribunal held that the evidence did not sufficiently support a reasonable hypothesis that the husband's operational service led to an increase in his smoking. The wife's statements were largely speculative, and the assumptions required to support the hypothesis were too extensive to be reasonable. The Tribunal affirmed the decision under review, finding that the evidence did not support the claim that the husband's operational service led to an increase in his smoking.

The AAT found that the evidence, although inconsistent, indicated that the husband had smoked since at least 1952 and continued until his heart attack in 1990. However, the Tribunal held that the evidence did not sufficiently support a reasonable hypothesis that the husband's operational service led to an increase in his smoking. The wife's statements were largely speculative, and the assumptions required to support the hypothesis were too extensive to be reasonable. The Tribunal affirmed the decision under review, finding that the evidence did not support the claim that the husband's operational service led to an increase in his smoking. The Tribunal did not order any further action in relation to the claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We consider that in the circumstances of this case and on the basis of all of the material before us the assumptions required to be made to support the hypothesis are too extensive to make the hypothesis reasonable.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

We consider that, although there is inconsistent material including Mr Booth’s and Mrs Booth’s own representation to the Repatriation Commission and to medical practitioners, there is material that points to Mr Booth smoking since at least 1952 and until he had a heart attack in 1990.DOES THE MATERIAL POINT TO AN INCREASE IN SMOKING RELATED TO OPERATIONAL SERVICE? Mrs Booth said Mr Booth’s cough, which he had had ever since she had known him, got worse over time. She also said that the amount of time he spent in the garage increased over time. She also said that when Mr Booth came back from Vietnam he was very depressed and his personality had changed. She said he was stressed and did not want to talk to her. She said he spent more time in the garage and he “couldn’t stand the quietness of the house”. She said Mr Booth eventually told her about Vietnam – that he could not sleep because they were fired at every night and that “the Vietnamese were great robbers, stealing his underwear. She said he was happy in the garage where he didn’t have to talk to her or to anyone else. Mrs Booth said she has no idea how much Mr Booth smoked and the details she supplied on 20 April 2011 on the Application for Review form (at least 20 cigarettes per day) were merely a guess, but she thinks his smoking increased because his bronchial condition started to get worse in 1968/1969 when he came back from Vietnam and when he went to Malaysia. Mrs Booth was a nurse. She noted that before Vietnam he never needed antibiotics, but after Vietnam he did need them. We note that on 4 August 2011 Mrs Booth said on a form providing further information about smoking that Mr Booth smoked 15 cigarettes per day from 1952 to February 1968 and then 20 to 30 cigarettes per day from March 1968 to February 1969 due to “stress of operational service”. Mrs Booth said she really did not know how much Mr Booth smoked and she was under pressure from the advocate assisting her with the form to “put something in”. She said it was “ridiculous”. There is little material pointing to an increase in Mr Booth’s smoking and any connection between such an increase and Mr Booth’s operational service. But it could not be said there is no material pointing to the hypothesis. IS A REASONABLE HYPOTHESIS RAISED? The question remains whether the material is sufficient to make the hypothesis a reasonable one. Mrs Booth, although she never knew or observed how much Mr Booth smoked, considered that his smoking increased after his return from Vietnam. She formed this view because he spent more time in the garage – the place where he customarily smoked when he was at home. She also considered that he spent more time there because he was depressed and stressed on return from operational service and did not want to talk to anyone. This opinion of Mrs Booth’s is circular and tenuous. There is no material that has not now been described as a “guess” that directly points to Mr Booth smoking at least five cigarettes per day. It is assumed by Mrs Booth that he did. We note that she described the numbers of cigarettes she wrote on forms for the Repatriation Commission as guesses. She said she “had no idea” how much Mr Booth smoked at any time. As a nurse, she concluded from an increase in his coughing that his smoking increased but there is no medical information about his coughing or the bronchial condition she said he developed after operational service.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1257
Re	Phyllis Booth
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Bell, Senior Member Dr W Isles, Member
Date	11 December 2012
Place	Sydney