Pritchard and Repatriation Commission - [2002] AATA 459

DECISION AND REASONS FOR DECISION [2002] AATA 459

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2002/4

VETERANS' APPEALS DIVISION       )
           Re      MARIE KATHLEEN PRITCHARD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date14 June 2002
PlaceHobart

Decision      The decision under review is set aside and in substitution therefor, a decision that the application of Marie Kathleen Pritchard for a widow's pension in respect of her late husband, Mark Marcel Pritchard, is accepted on the basis that his death was war-caused.
  [Sgd B W Davis]
  Part-Time Member
CATCHWORDS
Veterans' Appeals - disability - eligible war service - widow's pension - onset of condition cause of death - reasonable hypothesis - Statement of Principle (SOP) - liver failure - metastatic adeno carcinoma - unknown primary site - cigarette consumption - Veterans' Review Board (VRB).
Legislation and Principles:

Veterans' Entitlements Act 1986 – ss120(1), 120(4) and 120B.
Statements of Principles:

Instrument No 18 of 2000, malignant neoplasm of the bileduct
Instrument No 24 of 1996, as amended by Instrument No 6 of 1998,re malignant neoplasm of the colon
Instrument No 56 of 1997 re malignant neoplasm of the pancreas
Instrument No 26 of 1996, as amended by Instrument No 4 of 1998, re malignant neoplasm of the rectum
Instrument No 68 of 1997, as amended by Instrument No 10 of 1998, re malignant neoplasm of the stomach.

Guide to Assessment of Rates of Veterans' Pension (GARP), Fifth Edition, 1998.
Authorities

Keenan and Repatriation Commission (1990) 21 ALD 289
Everett and Repatriation Commission (1991) 23 ALD 529
Edwards v Repatriation Commission Federal Court 612/1993
Bridgeman and Repatriation Commission (1998) 50 ALD 671
Smith v Repatriation Commission [1999] FCA 1484

REASONS FOR DECISION

14 June 2002 Associate Professor B W Davis AM (Part-time Member)

The Application

The Applicant, Marie Kathleen Pritchard, has appealed against a decision of the Repatriation Commission dated 13 June 2001, subsequently affirmed by a decision of the Veterans Review Board (VRB) dated 6 December 2001, whereby the applicant's claim for pension in respect of the death of her late husband, Mark Marcel Pritchard, was rejected on the basis that his death was not war-caused.
The Issue
The issue in this case is whether the Veteran's death was caused or contributed to by his service in the Royal Australian Navy between 23 April 1945 and 6 August 1946.
Date of Effect
All steps in this matter having been taken within the prescribed time limits, should the applicant succeed in her appeal, the date of effect will be 9 February 2001, being three months prior to lodgment of the application.
Standard of Proof
As the late veteran did not render operational service the standard of proof is that contained in ss120(4) of the Veterans' Entitlement Act 1986 ("the Act") i.e. the "reasonable satisfaction" standard. As this claim was lodged after 1 June 1994, s120B of the Act applies.
Given that the veteran died of a malignant neoplasm (metastatic adeno carcinoma, unknown primary site), a number…

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 Pritchard and Repatriation Commission

Details

AGLC: Pritchard and Repatriation Commission [2002] AATA 459
Case: [2002] AATA 459
Decision Date: 14 June 2002

CaseChat Overview and Summary

The case of Pritchard and Repatriation Commission involves Marie Kathleen Pritchard, the widow of Mark Marcel Pritchard, who sought a pension on the basis that her husband's death was attributable to his war service. The Repatriation Commission initially denied the claim, a decision that was upheld by the Veterans' Review Board. The matter was then brought before the Tribunal to review the decisions of the Commission and the Board.

The central legal issue was whether Mr Pritchard's death, which resulted from metastatic adeno carcinoma of an unknown primary site, was war-caused. This required consideration of the onset and progression of his smoking habit, which began during his naval service, and its causal relationship with his service. The Tribunal had to determine if the smoking habit was a personal choice or if it was influenced by the conditions of his service, and whether this habit played a significant role in his subsequent illness and death. Additionally, the Tribunal needed to evaluate the relevance of various Statements of Principle concerning malignant neoplasms in the context of Mr Pritchard's case.

The Tribunal concluded that while the evidence did not conclusively establish the precise reason for Mr Pritchard's smoking or its exact impact on his health, it was clear that he began smoking heavily during his naval service and continued this habit for many years. This smoking habit met the criteria specified in the Statements of Principle, and it was almost a lifelong habit that likely contributed to his death. Considering the intent of the Veterans' Entitlements Act 1986 and other relevant factors, the Tribunal found on the balance of probabilities that Mr Pritchard's death arose out of or was attributable to his eligible war service.

The Tribunal set aside the prior decisions and accepted Marie Kathleen Pritchard's application for a widow's pension on the basis that her husband's death was war-caused. The decision underscores the importance of considering the totality of circumstances and the intent of the legislation in determining the eligibility of veterans and their dependents for benefits.

Orders

Orders of the court

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Background

Background to the litigation

Mr Pritchard's widow (Marie Kathleen Pritchard) sought a pension on the basis that her husband's death was war-caused. A delegate of the Repatriation Commission refused her claim in a decision dated 13 June 2001. The VRB affirmed this decision on 6 July 2001.Facts and Contentions Counsel for the applicant, filed a statement of facts and contentions on 18 February 2002, asking the Tribunal to consider the circumstances which led to a non-smoker at enlistment becoming a heavy smoker thereafter, with subsequent major illness and death. She requested the Tribunal review the Repatriation Commission and VRB decisions and find Mr Pritchard's death was war-caused. The respondent contended there was no material upon which the Tribunal could be reasonably satisfied that the deceased's smoking habit had a causal as distinct from a temporal relationship with his service.Evidence At the Tribunal hearing conducted on 5 May 2002, the applicant was represented by Mr Robert Gibbs and the respondent by Mr Michael Castle. The applicant, Mrs Maria Kathleen Pritchard, was sworn and gave evidence about her late husband's smoking habits. She did not know precisely when he commenced smoking, but knew that it started during his naval service. He was a heavy smoker at the time she first met him and she could confirm that although he contemplated giving it up, he remained a heavy smoker from 1945 until 1994, when he decided it was too expensive and quit. Mrs Pritchard was questioned by counsel for the respondent, but could not add any supplementary information, other than she considered his Potts fracture caused some frustration and stress early in his naval career and the resultant inactivity and boredom may have contributed to his smoking habit. Many of his friends and members of her family were smokers; it was regarded as a normal social activity at the time.Analysis In reaching the decision that her husband's death was not war-caused, the delegate of the Repatriation Commission and later the Veterans' Review Board (VRB) relied upon a number of factors, including the nature of his final illness, the smoking issue and the relevant Statements of Principle applicable to a range of malignant neoplasm situations. The delegate of the Repatriation Commission noted that the veteran's smoking habit equated to approximately 20 cigarettes per day until the mid 1990's, but decided there was no causal relationship relative to eligible service, as there was no evidence to cause him to commence smoking. Aggravation as a cause of death could not be considered, as the medical condition developed after eligible service. The VRB noted that Mr Pritchard was aged 20 at enlistment and considered the veteran was of sufficient maturity to make a personal choice about smoking or non-smoking; therefore arguments about peer pressure as a contributing factor should be discounted. The Board also noted a comment made in Repatriation Commission v Edwards Federal Court 612/1993, where Lockhart J cautioned against accepting smoking as war-caused, where this commenced during a period of non-operational service. The veteran had served a year before being assigned to a ship and the war had ended while he was recovering from his ankle injury. There was no record of unusual or stressful events other than his accidental injury and the Board therefore found the veteran's smoking habit was a personal choice.

Evidence

Evidence Before The Court

The respondent contended there was no material upon which the Tribunal could be reasonably satisfied that the deceased's smoking habit had a causal as distinct from a temporal relationship with his service.Evidence At the Tribunal hearing conducted on 5 May 2002, the applicant was represented by Mr Robert Gibbs and the respondent by Mr Michael Castle. The applicant, Mrs Maria Kathleen Pritchard, was sworn and gave evidence about her late husband's smoking habits. She did not know precisely when he commenced smoking, but knew that it started during his naval service. He was a heavy smoker at the time she first met him and she could confirm that although he contemplated giving it up, he remained a heavy smoker from 1945 until 1994, when he decided it was too expensive and quit. Mrs Pritchard was questioned by counsel for the respondent, but could not add any supplementary information, other than she considered his Potts fracture caused some frustration and stress early in his naval career and the resultant inactivity and boredom may have contributed to his smoking habit. Many of his friends and members of her family were smokers; it was regarded as a normal social activity at the time.Analysis In reaching the decision that her husband's death was not war-caused, the delegate of the Repatriation Commission and later the Veterans' Review Board (VRB) relied upon a number of factors, including the nature of his final illness, the smoking issue and the relevant Statements of Principle applicable to a range of malignant neoplasm situations. The delegate of the Repatriation Commission noted that the veteran's smoking habit equated to approximately 20 cigarettes per day until the mid 1990's, but decided there was no causal relationship relative to eligible service, as there was no evidence to cause him to commence smoking. Aggravation as a cause of death could not be considered, as the medical condition developed after eligible service. The VRB noted that Mr Pritchard was aged 20 at enlistment and considered the veteran was of sufficient maturity to make a personal choice about smoking or non-smoking; therefore arguments about peer pressure as a contributing factor should be discounted. The Board also noted a comment made in Repatriation Commission v Edwards Federal Court 612/1993, where Lockhart J cautioned against accepting smoking as war-caused, where this commenced during a period of non-operational service. The veteran had served a year before being assigned to a ship and the war had ended while he was recovering from his ankle injury. There was no record of unusual or stressful events other than his accidental injury and the Board therefore found the veteran's smoking habit was a personal choice. This view was challenged by counsel for the applicant, both in the State of Facts and Contentions filed on 18 February 2002 and during the Tribunal hearing. Cases cited included Keenan and Repatriation Commission (1990) 21 ALD 289 and Everett and Repatriation Commission (1991) 23 ALD 529, both of which drew attention to the fact that cigarette smoking was actively promoted within the armed services during the war years and there was considerable peer group pressure on individuals to adopt this habit.

Decision

Reasons for decision

Taken together the evidence is not totally convincing about the reason for smoking or how large a factor it played in the ultimate malignant neoplasm, yet it cannot be gainsaid the late veteran commenced smoking during naval service to such an extent it met criteria specified in the Statements of Principle, it became almost a lifelong habit and must have played its part in his ultimate demise. Bearing in mind the beneficial intent of the Act, as well as other factors, the Tribunal is satisfied, on the balance of probabilities, that Mr Pritchard's death arose out of or was attributable to his eligible war service within the meaning of s9(1)(b) of the Act.Decision The decision under review is set aside and in substitution therefor, the application of Marie Kathleen Pritchard for a widow's pension in respect of her late husband Mark Marcel Pritchard is accepted on the basis that his death was war-caused.

Ratio Decidendi

Legal Principle Established

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