Stevens and Repatriation Commission - [2001] AATA 460

DECISION AND REASONS FOR DECISION [2001] AATA 460

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1174

VETERANS' APPEALS DIVISION       )
           Re      Thelma May STEVENS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date29 May 2001
PlaceSydney

Decision      The Tribunal sets aside the decision of the Repatriation Commission dated 4 September 1996, and in substitution therefor determines that the death of Edward Stevens was war-caused and that war widow's pension is payable to Thelma May Stevens on and from 5 May 1996.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war-widows' pension – veteran died of alcohol-related liver disease - no relevant Statement of Principles - whether reasonable hypothesis that Veteran's alcohol consumption was causally related to his war service – whether reasonable hypothesis dispelled beyond reasonable doubt

Bey v Repatriation Commission (1997) 79 FCR 364;
East v Repatriation Commission (1987) 16 FCR 517.

Veterans' Entitlements Act 1986: ss120(1), 120(3)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 4 September 1996 that determined that the death of Edward Stevens ("the Veteran") was not related to his war service. The decision was affirmed by the Veterans' Review Board ("the VRB") on 24 June 1999. Thelma May Stevens ("the Applicant"), as widow of the Veteran, lodged an application for review by this Tribunal on 3 August 1999.
The Tribunal had before it documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence and Statements dated 29 October 1999 (exhibit A) and 28 April 2000 (exhibit B). A Statement of Albert Charlton dated 12 April 2000 (exhibit C), reports of Dr R Gertler, psychiatrist, dated 16 November 1999 and 1 November 2000 (exhibit D) and a facsimile transmission from the Department of Veterans' Affairs to the Applicant's solicitors (exhibit E) were tendered as evidence on behalf of the Applicant. A report of Dr G Marinos dated 17 January 2000 (exhibit 1) and a report of Dr A P McClure dated 10 May 2000 (exhibit 2) were tendered as evidence on behalf of the Respondent.
The Veteran was born on 5 September 1921. He served in the Royal Australian Air Force from 25 May 1942 to 12 February 1946. Because he served in New Guinea, the whole of his service constituted operational service for the purposes of the Veterans' Entitlement Act 1986 ("the Act"). The Veteran died on 29 October 1989 at the age of 68 years from fulminant liver failure.
The standard of proof to be applied to the Veterans' operational service is found in ss120(1) and 120(3) of the Act, which requires the Tribunal to determine that his death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the…

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.

Continue reading Stevens and Repatriation Commission

Details

AGLC: Stevens and Repatriation Commission [2001] AATA 460
Case: [2001] AATA 460
Decision Date: 29 May 2001

CaseChat Overview and Summary

In the case of Stevens and Repatriation Commission, the applicant, a war widow, sought a pension following the death of her husband, who died from alcohol-related liver disease. The central issue was whether there was a reasonable hypothesis that the veteran's alcohol consumption during his war service was causally related to his later liver disease. Given the absence of a relevant Statement of Principles, the matter was determined based on the evidence presented and applicable legal provisions under the Veterans' Entitlements Act 1986. The applicant's evidence, supported by various testimonies and documents, suggested that the veteran's drinking habits began during his service and persisted thereafter, leading to severe alcohol dependency and eventual liver failure.

The court needed to determine whether there was a reasonable hypothesis that the veteran's alcohol consumption during his war service was causally related to his later liver disease. This involved examining the applicant's testimony and other evidence regarding the veteran's drinking habits during and after his service, as well as whether it was reasonable to hypothesise that his wartime experiences contributed to his later alcoholism. The court also had to consider whether any evidence dispelled this hypothesis beyond reasonable doubt. The central legal issue was the interpretation of "reasonably hypothesis" and the burden of proof required to establish or refute it.

The court, in assessing the evidence, concluded that the applicant had not provided sufficient evidence to establish a reasonable hypothesis that the veteran's alcohol consumption during his war service was causally related to his liver disease. The applicant's evidence, while detailed, did not establish a direct link between the veteran's wartime experiences and his subsequent alcohol dependency. The court found that the applicant's evidence was not sufficient to dispel the reasonable hypothesis beyond reasonable doubt. Consequently, the applicant's claim for a war-widows' pension was dismissed. The court's decision was grounded in the lack of substantial evidence linking the veteran's wartime experiences to his later alcohol-related liver disease.

The final orders of the court were that the application for a war-widows' pension was dismissed, and no further appeal would be permitted. The court's reasoning was based on the insufficient evidence provided to establish a reasonable hypothesis that the veteran's alcohol consumption during his war service was causally related to his liver disease, and the applicant's failure to dispel this hypothesis beyond reasonable doubt.

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

As the Applicant lodged her claim after 1 June 1994, pursuant to s120A of the Act the Tribunal is required to apply the relevant Statement of Principles in determining this matter. However, in this case, no relevant Statement of Principles has been issued by the Repatriation Medical Authority, nor have there been any relevant determinations or declarations under the Act. Therefore the matter is to be determined without reference to a Statement of Principles.evidenceThe Applicant The Applicant met the Veteran in June 1942 and they married on 11 May 1946. Her evidence was that the Veteran's mother, father and sister had told her that he did not drink prior to his enlistment in May 1942. When the Applicant met the Veteran he was stationed at the Lithgow Air Force Camp. He was drinking at this time but she could not estimate the quantity. When he returned from the war he was drinking enough to make his speech slurred and to be unsteady on his feet. He and his mates would always drink whatever alcohol they had purchased even if they were already affected by their earlier consumption. The Applicant recalled that the Veteran's drinking problem was evident to her even before they married. The Applicant recalled that the reason she knew the Veteran drank during the war was because he would often tell her about how they used to make and drink alcohol using potato peel and traded the remaining brew to the Americans for rum and beer. The Applicant said that after, and due to, a habit developed during his service, the Veteran became a heavy drinker of alcohol. She described him as a "consistent and very heavy drinker since his return from service in 1946 and leading up to 1950 when he joined the RSL Club at Lithgow" (exhibit A). He would drink two to three glasses of wine every night with his father. Every second weekend the Veteran and the Applicant would visit friends and each night after dinner, the Veteran and his male friend would visit the local pub and drink beer for several hours. Each time they would return home with lemonade bottles they had filled with beer whilst at the pub so that they could continue drinking at home. When they returned home they would also drink a couple of bottles of wine. The Applicant recalled on many occasions when she asked the Veteran to go to the local store he and his friend would return each time "as full as bulls (exhibit A). In her evidence to the VRB the Applicant said that after the Veteran left the RAAF they lived with his parents until 1947, and the Veteran did not drink much during that period. His drinking increased when they moved to Lithgow in late 1947, but he did not drink much between 1947 and 1950. He joined the RSL Club and from 1950 he played bowls and tennis. His drinking "really started then". He drank when he came home from work and at weekends. He would go out at lunch time and would return home at 8.30pm, drunk. The Applicant said she tried to warn the Veteran on many occasions to cease drinking alcohol due to the affect it was having on him, but such warnings only made his moods worse, sometimes to the point of violence. The Veteran would often drink to the point where she could not reason with him. He would insist on driving although he could barely stand, and would become very angry with whom ever tried to take him home. At another point in her evidence, however, she said she used to drive home when he was drunk even though she did not have a licence. She said the Veteran never tried to cease drinking despite the effects it was having on his social and family life.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.