SANDRA PARKES and REPATRIATION COMMISSION

Case [2013] AATA 226

[2013] AATA 226

Division VETERANS' APPEALS DIVISION

File Number

2012/3528

Re

SANDRA PARKES

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION  

Tribunal

Mr R G Kenny, Senior Member
Date 16 April 2013
Place Brisbane

The Tribunal affirms the decision under review.

....................[Sgd]....................................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Pensions and benefits – Widow’s pension – Operational service with Royal Australian Navy – Death from alcoholic cirrhosis – Statements of Principles – Clinical onset – Heavy alcohol consumption unrelated to eligible service – Reasonable hypothesis of relationship to eligible service not raised – Death not war-caused – Decision under review affirmed

LEGISLATION

Veterans' Entitlement Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 14, 119, 120, 120A

CASES

Benjamin v Repatriation Commission (2001) 70 ALD 622

Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331

Repatriation Commission v Deledio (1998) 83 FCR 82

SECONDARY MATERIALS

Statement of Principles: Instrument No. 107 of 2007 as amended by Instrument No. 81 of 2011

Statement of Principles: Instrument No. 1 of 2009

Statement of Principles: Instrument No. 101 of 2007 as amended by Instruments No. 42 of 2010 and 15 of 2011

REASONS FOR DECISION

Mr R G Kenny, Senior Member

BACKGROUND

  1. Brian Parkes (the veteran) served in the Royal Australian Navy (RAN). He died on 27 September 2010 at the age of 75 years. The applicant is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (the Act). On 8 November 2010, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 8 December 2010 and by the Veterans’ Review Board (the Board) on 13 July 2012.

    SERVICE

  2. The veteran’s full-time RAN service was from 3 June 1953 until 28 July 1959 and from 9 November 1959 until 8 November 1966. He rendered eligible war service in the form of operational service in accordance with ss 7 and 6C of the Act, respectively, at various times between July 1955 and May 1963 on HMAS Tobruk (the Tobruk), HMAS Queenborough (the Queenborough) and HMAS Voyager (the Voyager) as part of the Far East Strategic Reserve (FESR). He also rendered operational service in South Vietnam on HMAS Yarra (the Yarra) from 24 March 1966 until 24 April 1966, from 25 April 1966 until 9 May 1966 and from 26 May 1966 until 9 June 1966.

    CAUSATION

  3. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act, which reads:

    (1)   Subject to this section … for the purposes of this Act,…

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AGLC
SANDRA PARKES and REPATRIATION COMMISSION [2013] AATA 226
Case
[2013] AATA 226
Decision Date

CaseChat Overview and Summary

The case involves Sandra Parkes and the Repatriation Commission, where the central issue was whether the veteran's death from alcoholic cirrhosis was attributable to his eligible war service. The dispute was heard in the Administrative Appeals Tribunal. The primary legal issue was whether there was a relevant connection between the veteran's war service and his subsequent alcohol consumption, which led to his death. This required the court to determine whether there was a reasonable hypothesis linking the condition that caused the veteran's death to his service.

The court considered the evidence presented, including the veteran's statements about his service, medical reports, and alcohol consumption documentation. The veteran had served on the HMAS Voyager during the time it collided with the Melbourne, an incident he described as traumatic. Following this, he exhibited symptoms of nervousness and later developed a pattern of heavy alcohol consumption, which was believed to be linked to his service. The applicant, Sandra Parkes, provided additional context about the veteran's life after his service, including his struggles with alcohol and depression.

The Tribunal concluded that no reasonable hypothesis existed connecting the veteran's alcoholic cirrhosis and his eligible war service. As such, the Tribunal found that his death from this condition was not war-caused. This decision was affirmed based on the lack of a reasonable hypothesis linking the condition to his service, thus the claim was dismissed. The court's reasoning was based on the absence of a connection between the veteran's service and his alcohol consumption as required by the Deledio steps.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Kelly submitted that the common law authorities and those based on the Act but which pre-dated the operation of Statements of Principles were not relevant to the applicant’s claim.EVIDENCEThe veteran The veteran completed a statement on 14 April 1995. Therein, he referred to incidents when ships’ boilers exploded. He also referred to his service on the Yarra:[8]In march [sic] 1966 I was sent to HMAS Yarra, that was the straw that broke my spirit. We were deployed to escort the Melbourne to Vietnam. I didn’t get much sleep at night and usually came off watch and sat until daylight on the quarterdeck with other Voyager survivors who were on board. Whilst refuelling in the Bight on our return from Vietnam, Melbourne came very close to Yarra, which I observed and I gave up.[8] See Exhibit 1, T-documents, p. Z1.Service records The veteran was a member of the crew of the Voyager when it sank after a collision with the Melbourne in February 1964. He completed a statement in the same month.[9] It provides detail of the terrifying circumstances in which the veteran found himself when thrown into the ocean, rescued and returned to Australia. [9] See Exhibit 1, T-documents, pp. R-U. In evidence was a “Medical Statement of an Officer or Rating on Discharge or Demobilisation or Reversion to the Royal Navy”, dated 1 November 1965.[10] It was signed by the veteran and contains the following question/response.Do you suffer from any disabilities at present? If so, record details.Attacks of nervousness since Voyager incident.[10] See Exhibit 1, T-documents, pp. Y-Z. In another such document, dated 10 October 1966 and signed by the veteran, the same question received the following response:[11]Temporary tension. (nervous) after collision of HMAS Voyager. Feb 1964.[11] See Exhibit 1, T-documents, pp. W-X.Alcohol consumption documentation The veteran completed an alcohol consumption questionnaire on 13 February 2006.[12] Therein, he wrote that he commenced drinking alcohol in “1953 on joining RAN” and that he would consume 40 to 50 drinks per day when he was on shore leave and three per day while on board ship. He described the connection of that consumption to his RAN service as being due to “peer pressure”. He wrote that he was unable to recall the dates of any changes in the levels of his consumption but confirmed that he was “regularly involved in binge drinking” when ashore but was limited to “issued quantities” on board ship. [12] See Exhibit 1, T-documents, pp. 27-29. A medical report, dated 7 February 2006, also made reference to the veteran’s alcohol consumption from approximately 1953 at the level of 20 to 60 grams per day.[13][13] See Exhibit 1, T-documents, pp. 9-10.The Applicant The applicant’s evidence was that she and the veteran met and married in 1967. She described the veteran as “a drinker” at that time. His pattern of alcohol usage settled when their first child was born in 1969, but his drinking became a problem from the time he began working at a Sydney club. They moved to Queensland in the early 1970s and he continued his alcohol consumption and began to show signs of depression which, she believed, he self-treated with alcohol. The veteran worked for some years with a government body and his practice was to consume alcohol after each day’s work and on week-ends. He continued to suffer from depression. The applicant recalled that the veteran attempted to control his alcohol intake and would cease from time to time for two to three months but would then return to his previous usage levels. The applicant referred to the veteran’s “demons” from his Navy days, the Voyager incident and his drinking problems which started when he joined the Navy. Elvy Lowe

Decision

Reasons for decision

As no reasonable hypothesis of a relevant relationship is raised between alcoholic cirrhosis and the veteran’s eligible service, it follows that his death from that condition is not war caused. Consequently, it is not necessary for consideration to be given to the fourth of the Deledio steps. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Dr Raphael wrote:The phenomena and current symptomatology which is now present reinforce that this occurred as a consequence of the ‘Voyager’ disaster as the traumatic incident, and was further exaggerated by any reminders which reflected similar situations or circumstances and added to the levels of heightened arousal, distress and preoccupation that he suffered.PROCEDURE FOR CONSIDERATION The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[17](i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the 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. (ii) If the material does raise such hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) ... (iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail. (iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused ... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.I have noted the authorities referred to by Mr McDermott. However, I accept as correct the submission by Mr Kelly that the common law authorities and those based on the Act but which pre-dated the operation of Statements of Principles were not directly relevant to the applicant’s claim because consideration must be given to the impact of Statements of Principles.[17] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82-83.Step 1:- Hypotheses The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. As I understand it, two hypotheses were relied upon by Mr McDermott.