Salter and Repatriation Commission
[2000] AATA 690
•11 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 690
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1998/0863
VETERANS' APPEALS DIVISION )
Re ENID SALTER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member
Date11 August 2000
PlaceMelbourne
Decision The decision under review is affirmed.
…………………….…..
Senior Member
VETERANS' AFFAIRS: Widow's application; death from Acute Myeloid Leukaemia; whether deceased exposed to Benzene; material did not point to exposure; whether template of SoP satisfied; decision affirmed.
Administrative Appeals Tribunal Act 1975 s42D
Re: East v Repatriation Commission 1987 74 ALD 518
Re: Repatriation Commission v Deledio 1998 49 ALD 193
REASONS FOR DECISION
11 August 2000 Mr J. Handley, Senior Member
This application was heard on 19 May 1999. At the conclusion of the hearing I remitted the application to the respondent pursuant to s42D of the Administrative Appeals Tribunal Act 1975 for further investigation. That decision was made because of issues which emerged at the hearing.
The application brought by Mrs Salter was to claim pension as the widow of the late Richard Ewart Salter. The relevant Statement of Principles was Acute Myeloid Luekaemia being Instrument No. 169 of 1996. The relevant factors were (c) (d) and (e). Those factors are again reproduced as follows:
"The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Acute Myeloid Leukaemia or death from Acute Myeloid Leukaemia with the circumstances of a person's relevant service are:
(c)being heavily occupationally exposed to Benzene for a period or periods of time totalling at least two years, where the first exposure occurred more than five years before the clinical onset of Acute Myeloid Leukaemia; or
(d)being occupationally involved in the handling of AVGAS or petroleum products containing Benzene greater than 5% by volume for one month or more, where the first exposure occurred more than five years before the clinical onset of Acute Myeloid Leukaemia; or
(e)being occupationally involved in the handling of AVGAS or petroleum products containing Benzene greater than 1% by volume for one year or more, where the first exposure occurred more than five years before the clinical onset of Acute Myeloid Leukaemia."
Subsequent to the application being remitted to the respondent a further determination was made by Mr Herman. It was then determined that the decision under review in the previous hearing be affirmed. Submissions have also subsequently been made by Mrs Salter and by Mrs Salter's son. For the purposes of completing this review I have also had regard to the documents filed at the initial hearing. These reasons have been completed by reference to the documents filed, as the parties requested. For reasons which follow I am satisfied that the decision under review should be affirmed.
The introduction of Statement of Principles to the administration of Veterans' compensation and pension entitlements was described by the Federal Veterans' Affairs Minister on 9 June 1994 as providing "the template within which the individual claims will be determined". In Deledio v Repatriation Commission 1997 47 ALD 261 Heerey J at 275 said that the function of Statement of Principles is "limited to prescribing a medical – scientific standard with which a hypothesis must be consistent – so that the SoP can uphold the hypothesis". Statements of Principles are of themselves not the subject of challenge nor are the factors which must exist as a minimum before a reasonable hypothesis has been raised. Whilst proof of a fact intended to support the "template" is not required there must be "material" which "points to" the hypothesis as being reasonable. For a hypothesis to be reasonable it must be supported by more than a "possibility" (refer East v Repatriation Commission 1987 74 ALD 518).
In the present application the critical element of each of factors 5(c) 5(d) and 5(e) are the exposure to Benzene or AVGAS containing Benzene.
The case of the respondent was that the deceased was not exposed to Benzene throughout his service. The evidence giving rise to this assertion is recorded in the previous decision.
Mrs Salter and her son continue to assert that the late Mr Salter was exposed to Benzene and/or Benzene as an ingredient of AVGAS. With respect I can find nothing from the material filed prior to the earlier hearing nor subsequently which would "point to" the exposure of the deceased to this substance during his service.
Mrs Salter in her submission of 31 May 2000 records that she has "provided all the necessary information …. to establish a reasonable hypothesis that my husband's death COULD have been caused by his wartime service (emphasis provided). The submissions conclude that the late Mr Salter's exposure to "hazardous substances " …. cannot be disproven".
The submissions in my view amount to no more (in law) than a "possibility". As is referred to above the "material" must raise more than a possibility.
In Repatriation Commission v Deledio 1998 49 ALD 193 a Full Federal Court recorded four stages which must be satisfied in order to determine that a hypothesis is reasonable. The first stage is recorded as follows:
"The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail".
For the reasons given above I cannot be satisfied that there is material which points to or connects the death of the late Mr Salter with the circumstances of his service. It follows therefore that no hypothesis arises and the application cannot succeed.
In the alternative, Stage 3 of the conclusions in the Full Court decision of Deledio, record that if a Tribunal were to find that a hypothesis was established under Stage 1, it will only be regarded as reasonable if it is consistent with the "template", to be found by the Statement of Principles.
For the reasons given above I am not satisfied that there is material which is consistent with the "template" being factors 5(c), (d) and (e). It follows therefore that the hypothesis is not "reasonable" and the application cannot succeed.
I certify that the thirteen (13) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed: Linda Nemeth ............................................
SecretaryDate of Hearing 19 May 1999
Date of Decision 11 August 2000
Counsel for the Applicant
Solicitor for the Applicant
Counsel for the Respondent Ms T Chant
Solicitor for the Respondent Department of Veterans' Affairs
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