Robinson and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 7

Robinson and Repatriation Commission (Veterans’ entitlements) [2016] AATA 7 (14 January 2016)

Division

Veterans' Appeals Division

File Number

2015/0892

Re

Barbara Robinson

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Miss E A Shanahan, Member

Date 14 January 2016

Place Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan, Member
VETERANS’ AFFAIRS – widow’s claim for pension – death from metastatic carcinoma of the prostrate – hypothesis raised linking carcinoma of the prostrate to excessive alcohol intake – operational service in the United Kingdom in 1944 and 1945 – no active service – claims relating to increased fat in diet and cigarette smoking abandoned – no material pointing to a causal relationship between service and alcohol intake – decision affirmed.
Legislation
Veterans’ Entitlement Act 1986
Cases
Forrester v Repatriation Commission (2013) FCA 898
Bull v Repatriation Commission (2001) FCA 1832
Summers v Repatriation Commission (2015) FCAFC 36
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stares (1996) 66 FCR 594
Hill v Repatriation Commission (2005) FCAFC 23
East v Repatriation Commission (1987) FCA 242
Repatriation Commission v Codd [2007] FCA 877
REASONS FOR DECISION
Miss E A Shanahan, Member
14 January 2016

Mrs Barbara Robinson lodged a claim for a widow’s pension with the Department of Veterans’ Affair (DVA) on 7 February 2012. Her claim was based on the hypothesis that her husband’s death from metastatic carcinoma of the prostate on 9 November 1996 was related to his operational service in the Second World War. A DVA representative rejected the claim on 24 February 2012. Mrs Robinson lodged an application to the Veterans’ Review Board (VRB) for reconsideration of this decision on 20 February 2013. On 10 December 2014 the VRB affirmed the decision under review. Mrs Robinson was notified of this decision on 3 February 2015. She then lodged an application to the Administrative Appeals Tribunal for a review of the VRB decision on 26 February 2015.
At the hearing Mrs Robinson was represented by Ms Fiona Spencer of counsel, who was instructed by Williams Winter solicitors. The Repatriation Commission (the Commission) was represented by Mr Ken Rudge, a solicitor of the Commission. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) to which I assigned the Exhibit number R1. Both parties tendered further documentation, a list of which is appended to this decision. Mrs Robinson gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
The veteran, Arthur Douglas Robinson, enlisted in the Australian Army (the Army) on 29 December 1941 at the age of 18 and served until 12 February 1943. He was predominantly stationed in Queensland throughout that period. He then volunteered for the Royal Australian Air Force (RAAF) and became a member of the RAAF on 13 February 1943, where he served until 20 March 1946. In the RAAF he served in the United Kingdom, arriving there by ship on 12 August 1944 and leaving (again by ship) on…

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.

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Details

Case: [2016] AATA 7
Decision Date: 14 January 2016

CaseChat Overview and Summary

In the case of Robinson and Repatriation Commission, the applicant, Mrs. Robinson, sought a widow's pension based on her late husband's alleged excessive alcohol consumption. The dispute was heard by the Administrative Appeals Tribunal, which was required to determine whether the veteran's alcohol consumption during his operational service could be considered a reasonable hypothesis connecting his disease to his service. The Tribunal was tasked with examining the evidence provided by both parties and deciding whether the veteran's alcohol consumption was related to his service in the United Kingdom during the Second World War.

The primary legal issue the Tribunal needed to resolve was whether there was a reasonable hypothesis that the veteran's alcohol consumption during his operational service contributed to his malignant neoplasm of the prostate. The Tribunal had to consider the evidence of Mrs. Robinson, the documentary evidence from the veteran's service records, and the applicable standard of proof as defined in the Veterans' Entitlement Act 1986. The Tribunal found that the material before it did not raise a reasonable hypothesis connecting the veteran's alcohol consumption to his operational service.

The Tribunal's reasoning was based on the lack of any material relating to the veteran's alcohol intake between 2 October 1942 and late 1951, the period before the clinical onset of the malignant neoplasm of the prostate. The Tribunal noted that while Mrs. Robinson claimed her late husband consumed excessive alcohol during his service, there was no evidence in the official RAAF file that the veteran was deployed or transited through San Francisco or any European country, where he allegedly drank excessively. The Tribunal concluded that the material did not point to the hypothesis raised by Mrs. Robinson and could not infer from the veteran's drinking pattern from 1951 that his excessive alcohol intake was related to his operational service.

The Tribunal ultimately decided that the applicant's claim for a widow's pension based on the veteran's alleged excessive alcohol consumption during his operational service should be dismissed. The Tribunal found that there was insufficient evidence to support a reasonable hypothesis connecting the veteran's alcohol consumption to his malignant neoplasm of the prostate. The Tribunal's decision was based on the lack of material evidence and the absence of a causal relationship between the veteran's service and his alcohol consumption.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing Mrs Robinson was represented by Ms Fiona Spencer of counsel, who was instructed by Williams Winter solicitors. The Repatriation Commission (the Commission) was represented by Mr Ken Rudge, a solicitor of the Commission. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents) to which I assigned the Exhibit number R1. Both parties tendered further documentation, a list of which is appended to this decision. Mrs Robinson gave evidence before the Tribunal. BACKGROUND TO THE APPLICATION The veteran, Arthur Douglas Robinson, enlisted in the Australian Army (the Army) on 29 December 1941 at the age of 18 and served until 12 February 1943. He was predominantly stationed in Queensland throughout that period. He then volunteered for the Royal Australian Air Force (RAAF) and became a member of the RAAF on 13 February 1943, where he served until 20 March 1946. In the RAAF he served in the United Kingdom, arriving there by ship on 12 August 1944 and leaving (again by ship) on 22 January 1946. However, he had been removed from all active lists on 9 October 1945 and a later reports states that he had seen no active service. On entering the RAAF he had been found to be extremely fit with no abnormal physical finding; and it was noted that he smoked two ounces of tobacco per week (which converted to cigarettes would be approximately 60 or 70 roll yours owns per week). He did not drink alcohol. On 4 May 1944 the veteran was admitted to hospital in the United Kingdom (Western Fever Hospital in Fulham) with a provisional diagnosis of diphtheria. He was considered to be dangerously ill. His mother was notified of his illness. He spent 44 days in hospital. Eventually bacterial cultures resulted in the growth of a beta haemolytic streptococcus and the diagnosis was altered to scarlet fever. This was in a pre-antibiotic era and treatment for infection was limited. From the records the treatment appears to have been predominately Thymol gargles and general supportive nursing. On 1 October 1945 the veteran was again hospitalised with a fever and was admitted to a fever hospital where he stayed for 26 days. He was eventually diagnosed with glandular fever. Due to his service in the United Kingdom, all of the veteran’s service in the Army and RAAF is considered to be operational service. Upon his return to Australia the Veteran and his brother Gordon were established in a grocery business by their mother. They continued to operate and run this business for some three years. The veteran then worked in the real estate industry for R J Buxton as a salesman for five years. Thereafter, he became a used and new car salesman spending most of his working time at Bayside Motors where he was a manager. He retired in 1986 approximately, at which time he qualified for a service pension. However, he continued to work from home on a small scale buying and selling cars at auction centres and restoring motor vehicles.

Evidence

Evidence Before The Court

While Mrs Robinson described her husband as a very big drinker, she was not able to quantify the volume of alcohol he drank as most of his drinking was done in her absence. When informed of the various alcohol consumption figures recorded in medical and hospital records - which was at the most, one bottle of beer per day, Mrs Robinson insisted that the veteran hide his drinking. EVIDENCE BEFORE THE TRIBUNAL Mrs Barbara Robinson Mrs Robinson’s evidence has been summarised under BACKGROUND TO THE APPLICATION. Her recollection of events was poor with regard to dates and her evidence was at times contradictory.DOCUMENTARY EVIDENCE The relevant documentary evidence is referred to in BACKGROUND TO THE APPLICATION. Regrettably, the late veteran’s treating medical practitioners have either retired or died and records are not available. Records were provided by the Repatriation Hospital, the Alfred Hospital and Bethlehem Hospital. They have all been referred to where relevant. It is clear from the RAAF records that the veteran was termed seriously ill when he was admitted to hospital in the United Kingdom on 12 April 1944 with a provisional diagnosis of diphtheria or scarlet fever. He was subsequently found to have scarlet fever. The veteran recovered with conservative treatment. He was hospitalised for 44 days for the treatment of his scarlet fever. On 1 October 1945 he was again admitted to hospital, with a diagnosis of glandular fever. He was again treated conservatively with purely supportive therapy and was hospitalised for a total of 25 days. According to Dr Lester’s report in 1981, during the veteran’s period in United Kingdom he did not see any active service. The veteran’s cause of death has been confirmed as carcinoma of the prostrate with widespread metastatic disease, involving lymph nodes and bones. The episodes of transient ischaemic attacks occurring shortly before his death were not considered to have any bearing or contribution to death. RELEVANT LEGISLATION As all of the late veteran’s service in the Army and RAAF has been determined to be operational service the standard of proof applicable is defined in s 120(1) and s 120(3) of the Veterans’ Entitlement Act 1986 (the Act):120 Standard of proof(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.Note:This subsection is affected by section 120A....(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war‑caused injury or a defence‑caused injury;(b)that the disease was a war‑caused disease or a defence‑caused disease; or(c) that the death was war‑caused or defence‑caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note:This subsection is affected by section 120A.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Rudge relied on the decision of Gordon J in Repatriation Commission v Codd [2007] FCA 877, wherein Her Honour stated (at paragraph 12):As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532–533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366–367 and 372–373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].TRIBUNAL’S DELIBERATIONS The Tribunal notes that the veteran had operational service during the Second World War when he was posted to the United Kingdom while serving in RAAF. It would appear from the information provided that he did not see any active service while in England, presumably as a result of two bouts of ill-health which required prolonged hospitalisation in April 1944 and October 1945. His record of service does not reveal any visits to or transit through continental European countries or the United States of America. While initially Mrs Robinson’s claim for the widow’s pension was based on several relevant factors in accordance with the SoP (namely cigarette smoking, alcohol consumption and consumption of greater than 40 per cent increase in dietary fat), her application to this Tribunal relates only to the late veteran’s alcohol consumption as delineated by Instrument No 53 of 2014 concerning Malignant Neoplasm of the Prostrate. In particular, Factor 6(d): drinking at least 200 kilograms of alcohol within any 10 year period within the 20 years before the clinical onset malignant neoplasm of the prostrate; Having considered all the material before the Tribunal, I find that as a result of the lack of any material relating to the veteran’s alcohol intake between 2 October 1942 and late 1951, the material does not point to the hypothesis raised by Mrs Robinson. Nor can the Tribunal infer from the veteran’s drinking pattern from 1951 as described by her that the veteran’s excessive alcohol intake was in any way related to his operational service. The only material that might tenuously point to any such causal relationship is Mrs Robinson’s evidence that her late husband told her he was required to provide identification in order to be served with alcohol. This she said had occurred in bars in continental Europe and San Francisco. There is no evidence in the official RAAF file that the veteran was deployed or transited through San Francisco or any European country.

Division	Veterans' Appeals Division
File Number	2015/0892
Re	Barbara Robinson
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Miss E A Shanahan, Member
Date	14 January 2016
Place	Melbourne