Skinner and Repatriation Commission (Veterans' entitlements) - [2023] AATA 1227

Skinner and Repatriation Commission (Veterans' entitlements) [2023] AATA 1227 (17 May 2023)
Division:Veterans' Appeals Division
File Number: 2020/6956
Re:Raelene Skinner
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak KC, Member
Date:17 May 2023
Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution, decides that the death of Gary Skinner was defence caused and pension is to be paid to the Applicant under s 70(1) of the Veterans’ Entitlement Act 1986 (Cth) with effect from 29 July 2019.
.........................[sgd]...............................................
Mr A. Maryniak KC, Member
CATCHWORDS
VETERANS' AFFAIRS - War widow's pension - Whether veteran's death war-caused - Statement of Principles - Whether alcohol consumption increase caused by service - Held factor connecting death by suicide to service - Held Applicant entitled to war widows' pension - Decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
CASES
Roncevich v Repatriation Commission (2005) 222 CLR 115
SECONDARY MATERIALS
House of Representatives Ministerial Statement, Future of Australian Forces in Vietnam and National Service, Speech 18 August 1971
Statement of Principles concerning suicide and attempted suicide (No. 66 of 2016)
Statement of Principles concerning alcohol use disorder (No. 49 of 2017)
REASONS FOR DECISION
Mr A. Maryniak KC, Member
17 May 2023

The Applicant seeks review of a decision of the Veteran’s Review Board dated 15 October 2020 to refuse an application for the grant of a war widow’s pension on the ground that her late husband’s death was not related to his defence service. This application is brought in respect of a claim under the Veterans’ Entitlement Act 1986 (the Act).
BACKGROUND
The Applicant’s late husband, Mr Skinner (the veteran) served from 26 January 1972 when he was called up for National Service in the Australian Army until he was discharged on 25 July 1973.[1] On 5 December 1972, the Government abolished conscription and serving national servicemen were free to leave the army if they wished. On 11 December 1972, the veteran elected to serve out the uncompleted portion of his National Service.[2]
[1] T10/33-35.
[2] R1/11.
The veteran and the Applicant had known each other since they were children and became engaged in December 1971.[3] In mid-1972, the veteran and the Applicant broke off their engagement. The veteran and the Applicant subsequently reconciled and were married in January 1973. The relationship ultimately broke down after an Apprehended Violence Order was issued in June 2017.[4] At the time of his death, the Veteran and Applicant had been separated for five months.[5]
[3] T6/20.
[4] T6/28.
[5] T7/19a, paragraph 16.
The veteran died aged 66 years old. The parties agree and the Tribunal finds that the veteran’s cause of death was by suicide while intoxicated on 19 October 2017.
LEGISLATION
The Act provides the relevant statutory framework and limits the relevant period of defence service to the period 7 December 1972 to 25 July 1973 (the Claimed Period).
Part IV of the Act relates to pensions to veterans and…

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: [2023] AATA 1227
Decision Date: 17 May 2023

CaseChat Overview and Summary

This matter concerned an application for a war widow's pension brought by the Applicant following the death of her late husband, the veteran, by suicide while intoxicated. The Applicant's claim was based on the assertion that the veteran's death was defence-caused, a contention previously refused by the Veteran’s Review Board. The veteran had served in the Australian Army from January 1972 to July 1973. The Tribunal was required to determine whether the veteran's death arose out of or was attributable to his defence service during the relevant period.

The central legal issues before the Tribunal were whether the veteran's death by suicide was defence-caused, and whether his alcohol consumption, which contributed to his death, was increased due to his defence service. This required the Tribunal to consider the relevant Statements of Principles concerning Alcohol Use Disorder and Suicide and Attempted Suicide, and to be satisfied on the balance of probabilities that a connection existed between the veteran's service and his death. The Tribunal was not bound by technicalities and was to act according to substantial justice, taking into account any difficulties in ascertaining facts due to the passage of time.

The Tribunal found that the veteran's time in the army was not a positive experience, with evidence suggesting he experienced bullying and developed a more anxious and pedantic personality after his service. The Applicant's evidence indicated an increase in the veteran's alcohol consumption during his service, particularly in the latter months, and a new habit of nail biting. The Tribunal was satisfied that the veteran held a belief that he might be sent to Vietnam, despite the Respondent's submissions to the contrary regarding the timing of Australian troop withdrawals. Applying the relevant Statements of Principles, the Tribunal was reasonably satisfied that the veteran's alcohol consumption increased due to his defence service, and that this, in turn, was a factor connecting his death by suicide to that service.

Consequently, the Tribunal set aside the previous decision and substituted its own finding that the veteran's death was defence-caused. The Applicant was therefore held to be entitled to a war widow's pension.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant seeks review of a decision of the Veteran’s Review Board dated 15 October 2020 to refuse an application for the grant of a war widow’s pension on the ground that her late husband’s death was not related to his defence service. This application is brought in respect of a claim under the Veterans’ Entitlement Act 1986 (the Act).BACKGROUND The Applicant’s late husband, Mr Skinner (the veteran) served from 26 January 1972 when he was called up for National Service in the Australian Army until he was discharged on 25 July 1973.[1] On 5 December 1972, the Government abolished conscription and serving national servicemen were free to leave the army if they wished. On 11 December 1972, the veteran elected to serve out the uncompleted portion of his National Service.[2][1] T10/33-35.[2] R1/11. The veteran and the Applicant had known each other since they were children and became engaged in December 1971.[3] In mid-1972, the veteran and the Applicant broke off their engagement. The veteran and the Applicant subsequently reconciled and were married in January 1973. The relationship ultimately broke down after an Apprehended Violence Order was issued in June 2017.[4] At the time of his death, the Veteran and Applicant had been separated for five months.[5] [3] T6/20.[4] T6/28.[5] T7/19a, paragraph 16. The veteran died aged 66 years old. The parties agree and the Tribunal finds that the veteran’s cause of death was by suicide while intoxicated on 19 October 2017.LEGISLATION The Act provides the relevant statutory framework and limits the relevant period of defence service to the period 7 December 1972 to 25 July 1973 (the Claimed Period). Part IV of the Act relates to pensions to veterans and their dependants. The parties agree and the Tribunal finds that the veteran was a ‘member of the Forces’ and a ‘member of the Defence Force’ pursuant to ss 68(1), 69(1)(a) and (f), and 70 of the Act. The Applicant’s eligibility for the pension sought is pursuant to s 70(1). Section 70(1) relevantly provides that: (1) Where: (a) the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;the Commonwealth is, subject to this Act, liable to pay: (c) in the case of the death of the member—pension by way of compensation to the dependants of the member; or(d) in the case of the incapacity of the member—pension by way of compensation to the member;in accordance with this Act. The Act is beneficial and provides that the Commission (and hence the Tribunal) is not bound by technicalities, shall act according to substantial justice and the substantial merits of the case, and shall take into account any difficulties in ascertaining facts due to the passage of time, the absence or deficiencies in official records and related matters.[6][6] The Act, s 119.ISSUES The Tribunal is to determine whether the veteran’s death arose out of or was attributable to any defence service during the Claimed Period.[7] . [7] The Act, s 70(5)(a).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The application is to be decided to the Tribunal’s ‘reasonable satisfaction’ and there is no onus of proof falling on either party.[9] In so determining a claim, the Tribunal is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:(a)The material before the Tribunal raises a connection between the injury, disease or death of the person and some particular service rendered by the person;[10] and(b)there is in force a Statement of Principles determined under s 196B(3) or s 196B(12) that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.[11] The parties agree and the Tribunal accepts, from an analysis of the evidence before it, that the relevant Statements of Principles to consider are: (i)Alcohol Use Disorder (No. 49 of 2017); and(ii)Suicide and Attempted Suicide (No. 66 of 2016).[9] The Act, ss 120(4) and (6).[10] The Act, s 120B(3)(a).[11] The Act, s 120B(3)(b)(i).CONSIDERATION The Tribunal has considered the oral evidence given during the hearing by the following individuals: (a)the Applicant; (b)Mr William Reid, veteran; (c)Ms Oberholzer, clinical psychologist; (d)Dr Nigel Strauss, psychiatrist; and (e)Dr Kevin O’Daly, psychiatrist. The Tribunal has also considered the documentary evidence tendered by the parties comprising exhibits A1 to A11 and R1 to R4 and the submissions of the parties.Alcohol Use Disorder A medical examination record of the veteran indicates that prior to entering the army the veteran was fit for service, with no prior injuries and no history of nail biting.[12] The Applicant gave evidence about upsetting conversations she had with the veteran in the first six months of his service regarding bullying and the way he was spoken to.[13] Further, the Applicant gave evidence that the veteran was a changed person after he left the army. He was no longer easy going, was more pedantic and things had to be done right and correctly all the time.[14] Before going into the army the veteran was very fit, played lots of sports and was not a big drinker as he always had something on the next day, such as surfing.[15] Once in the army, and particularly in the last few months of his service, the Applicant noticed that he was drinking more alcohol more often and sometimes to excess.[16] By the time they were married the veteran had also developed a significant nail biting problem which he did not have previously.[17] [12] T13/64: Medical Examination Record dated 18 October 1971.[13] Transcript P-13, P-16 and Exhibit A2. [14] Transcript P-18.[15] Transcript P-20 and P-32.[16] Transcript P-20 and P-60.[17] Transcript P-34. It is clear from the Applicant’s evidence that the veteran did not find his time in the army a positive experience overall, that he mostly preferred not to talk about it and that as at December 1972, he thought he would be sent to fight in Vietnam.[18] The Respondent made submissions to the effect that this belief could not be validly held during that time because Australian troops had essentially been withdrawn by then,[19] so there is a question as to the validity of the belief held. The Tribunal is satisfied that the veteran held the belief at that time, whether correct or not.[18] Transcript P-46.[19] House of Representatives Ministerial Statement, Future of Australian Forces in Vietnam and National Service, Speech 18 August 1971.