Spies and Repatriation Commission (Veterans' entitlements) - [2020] AATA 2580

Spies and Repatriation Commission (Veterans' entitlements) [2020] AATA 2580 (31 July 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/1017
Re:Therese Spies
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:31 July 2020
Place:Brisbane

The Tribunal affirms the decision under review.
................[SGD]........................................................
Member D Mitchell
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – whether death was war caused –Statement of Principles concerning hypertension – alcohol consumption – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
STATEMENT OF PRINCIPLES
Statement of Principles concerning hypertension No. 63 of 2013 (as amended) (Cth)
CASES
Budge and Repatriation Commission [2014] AATA 276
Bull v Repatriation Commission [2001] FCA 1832
Cairns and Repatriation Commission [2013] AATA 742
Collins v Repatriation Commission [2009] FCAFC 90
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 74 ALR 518
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Higgins and Repatriation Commission [2013] AATA 630
Hill v Repatriation Commission [2005] FCAFC 23; (2005) 85 ALD 1
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Hill [2002] FCAFC 192
Robertson v Repatriation Commission (1998) 50 ALD 668
Willman and Repatriation Commission [2007] AATA 1480
REASONS FOR DECISION
Member D Mitchell
31 July 2020
INTRODUCTION

Mrs Therese Spies (the Applicant) made a claim for a war widow’s pension on 22 September 2016[1] on the basis that the death of her husband, the late Mr Kevin Spies (the Veteran) was war-caused under the Veterans’ Entitlement Act 1986 (Cth) (the Act). The Veteran was not in receipt of a pension under the Act prior to his death.
[1] Exhibit 1, T Documents, T5, pages 16-25, Claim for War Widow’s Pension.

On 7 February 2017, the Respondent determined that the death of the Veteran was not service related.[2] This decision was affirmed by the Veterans Review Board (the VRB) on   28 November 2017.[3]
[2]     Exhibit 1, T Documents, T7, pages 27-29, Determination dated 7 February 2017.
[3]     Exhibit 1, T Documents, T13, pages 40-46, Reviewable Decision dated 7 December 2017.
On 28 February 2018, the Applicant sought review of the VRB decision by this Tribunal.[4]
[4] Exhibit 1, T Documents, T2, pages 3-11, Application for Review of Decision.
The Veteran served in the Royal Australian Air Force during World War II having enlisted on 13 November 1942 as an Aircraftman.[5] He was promoted to the rank of Leading Aircraftman on 1 September 1943.[6] He served in the Northern Territory between 28 February 1944 and 15 January 1945.[7] It is reported that the Veteran:[8]
[5] Exhibit 1, T Documents, T14, pages 47-48, Statement of Service.
[6] Exhibit 1, T Documents, T14, page 47, Statement of…

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: [2020] AATA 2580
Decision Date: 31 July 2020

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding a decision by the Repatriation Commission (the Commission) to affirm a decision that the death of the Veteran was not war-caused. The Applicant sought a war widow's pension, which required establishing that the Veteran's death was war-caused. The central dispute revolved around whether the Veteran's hypertension, which led to his death, was a consequence of his war service.

The Tribunal was required to determine several issues: whether the Applicant was a dependant of the Veteran, the 'kind of death' the Veteran suffered, whether a Statement of Principles (SoP) was in force for that kind of death, and crucially, whether that kind of death was war-caused. The Applicant provided evidence detailing the Veteran's alcohol consumption, stating that he commenced drinking in 1942 and that his drinking increased significantly, with the Veteran attributing this to his war service. She further stated that the Veteran used alcohol to relieve anxiety and fears stemming from his war experiences, particularly his role as a gunner and the stress of combat.

The Tribunal considered the Applicant's statements regarding the Veteran's alcohol consumption and his association of this habit with his war service. The Applicant asserted that the Veteran only began drinking upon joining the RAAF and that this was a response to the stress and anxiety of his wartime experiences, including the uncertainty of missions and the loss of friends. The Tribunal noted the Veteran's own statements that drinking and smoking were stress relievers directly related to his time in the war. The Tribunal's reasoning focused on whether the evidence established a causal link between the Veteran's war service and his hypertension, as required by the relevant SoP.

The Tribunal affirmed the Commission's decision, finding that the evidence did not establish that the Veteran's hypertension was war-caused. Consequently, the Applicant was not entitled to a war widow's pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue to be determined by the Tribunal are:(a)Was the Applicant a dependant of the Veteran;(b)What ‘kind of death’ did the Veteran suffer;(c)Whether there is a Statement of Principles (SoP) in force in relation to that ‘kind of death’; and (d)Whether the ‘kind of death’ suffered by the Veteran was war-caused.EVIDENCE The Applicant stated in an Alcohol Questionnaire dated 30 August 2017 that:[19] [19] Exhibit 1, T Documents, T11, pages 36-38, Alcohol Questionnaire.·She first met the Veteran in 1977.·The Veteran commenced consuming alcohol in 1942.·She did not know how much alcohol the Veteran drank however during their marriage he many times drank to excess and would get quite drunk. ·In relation to whether there were any significant changes to the amount of alcohol the Veteran drank after he first started drinking alcohol:o From 1946, “He told me he would drink excessive amount of beer and spirits and often be quite drunk.” The reasons for the change are listed as “His war service”.o From 1977, “10 bottles of red wine and or champagne per week plus approximately 10 spirits per week.” The reasons for the change are listed as “This what he was drinking after we established a friendship.”o From 2000, “1-2 bottles of wine per week, about 2 spirits per week.” The reasons for the change are listed as “He bought a limousine business and needed to make sure he wasn’t affected by alcohol.” In a statement accompanying the Alcohol Questionnaire the Applicant provided that the Veteran told her he first started to drink alcohol on joining the Air Force and this increased as his service experiences increased. She provided: “He often spoke to me about his fears and the anxiety and stress from his war service and that he used alcohol to relieve his anxiety and fears.”[20][20] Exhibit 1, T Documents, T12, page 39, Statement of the Applicant dated 6 September 2017. In a written statement filed on 12 July 2018, the Applicant provided:[21][21] Exhibit 5, Statement of the Applicant filed on 12 July 2018.…3. [The Veteran] was a gunner and a Leading Aircraftman. In that capacity he had great difficulty in accepting that he would be forced to shoot at others when commanded to do so. He was shaken by the reality that friends had not come back from an aircraft raid. He would not `spill his guts' - as the saying goes - after a few drinks but when we were drinking and relaxing alone together, he would voice the anxiety and despair that he had owing to his time in the RAAF during the war. He would only talk about it when he was drinking and these emotions about the War, which were otherwise interned, came to the surface for a relatively small period of my life with him. Alcohol consumption was a feature, to both allow him to talk about, and then deal with, these heavy reflections over the loss of life.4. Of course, with the drinking came the increase in smoking that was part of his armory when talking about his time in the War, and again, he always associated his time in the RAAF with the reason that he ever started smoking at all. It was a tool for relieving the stress and anxiety associated with, `what's next?' when they were in Darwin during the War.5. Similarly, with his drinking, he maintained that he only started drinking when he first went to Darwin - as his father was very strict and he came from a conservative family who lived in Auburn, NSW. I think that money was too tight then, after the depression, to spend it on alcohol for recreational pursuits.6. [The Veteran] said that when he joined the RAAF drinking was part of the RAAF culture. There was drinking on Base; there were night missions and uncertainty as to what was going on with the next (night) mission. During down times they would have a drink and smoke as part of their R and R.7. …[the Veteran] talked less as time went on but he did say that smoking and drinking was a great stress reliever. This was in direct reference to the war - as I dealt with any general house-hold issues and family crises that arose from time to time.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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