Stone and Repatriation Commission - [2002] AATA 21

DECISION AND REASONS FOR DECISION [2002] AATA 21

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1034

VETERANS' APPEALS DIVISION       )
           Re      PHYLLIS STONE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr IR Way, Member

Date16 January 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

I R WAY
MEMBER
CATCHWORDS
VETERANS' AFFAIRS – war widow's pension – whether the veteran's death was war-caused – obesity

Veterans' Entitlements Act 1986

Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Tuite (1993) 17 AAR 158
Hilton v Repatriation Commission [2001] AATA 20

REASONS FOR DECISION

16 January 2002 Mr IR Way, Member

This is an application by Phyllis Stone for review of a decision of the Veterans' Review Board (VRB) dated 24 July 1999 which affirmed a decision of a delegate of the Repatriation Commission that the death of the applicant's husband, the late Jack Stone, was not causally related to his service.
At the hearing, the applicant was represented by Mr A Harding of Counsel, instructed by Messrs Gilshenan and Luton, and the respondent by Mr M Smith, Departmental Advocate.
The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T" Documents T1 – T6), a medical report prepared by Dr RM Goodwin (Physician) dated 17 June 2001 (Exhibit A1) and a report dated 27 April 2000 prepared by Dr J Kenardy (Psychologist) (Exhibit A2). Oral evidence was given by the applicant, Mrs D Ferney and Dr Goodwin.
Under Section 13 of the Veterans' Entitlements Act 1986 (the Act) the Commonwealth is liable to pay a pension by way of compensation to the dependents of a veteran, where the death of the veteran was war-caused. A dependent of a deceased veteran, including a widow (Section 11), may make a claim to a pension under Section 14.
Mr Stone served in the Royal Australian Air Force from 12 May 1943 until his discharge on 13 January 1946. All of his service was in Australia and hence Mr Stone rendered eligible war service. However, the veteran's service was not operational service and accordingly Section 120(4) of the Act requires the Commission, in making any determination of a decision on her application, to decide the matter to its reasonable satisfaction applying the civil standard of proof of the balance of probabilities (see Repatriation Commission v Smith (1987) 15 FCR 327 at 335). Section 120B(3) of the Act provides in part:
"(3)In apply subsection 120(4) to determine a claim, the Commission 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 Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) ….; or
(ii)……
that upholds the contention 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 Stone and Repatriation Commission

Details

AGLC: Stone and Repatriation Commission [2002] AATA 21
Case: [2002] AATA 21
Decision Date: 16 January 2002

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved a claim for a war widow's pension under the Veterans' Entitlements Act 1986. The applicant sought to establish that the veteran's death was caused by his war service, specifically citing obesity as a contributing factor. The Tribunal was required to determine whether the veteran's obesity was linked to his service and if it contributed to his death.

The key legal issue was whether the veteran's obesity, which was evident at the time of his death, was attributable to his service in the Royal Australian Air Force (RAAF). The Tribunal had to consider the evidence regarding the veteran's weight gain during his service, his dietary habits, and periods of inactivity due to illness. The decision hinged on establishing a causal link between the veteran's service and his obesity, and whether this obesity contributed to his death.

The Tribunal examined the evidence presented, including the testimony of the veteran's daughter and medical reports. Dr Goodwin, the physician, provided evidence that the veteran's weight gain during his service, coupled with his less physically demanding role and increased consumption of fatty foods, likely contributed to his obesity. Dr Kenardy's psychological report highlighted the complexities of dietary habits and the potential for habituation but did not provide conclusive evidence regarding the direct influence of fat consumption on habit formation. The Tribunal concluded that the veteran's obesity was reasonably attributable to his service and that it likely contributed to his death.

The Tribunal found in favour of the applicant, determining that the veteran's obesity was linked to his service and that it contributed to his death. Consequently, the applicant was entitled to a war widow's pension under the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mrs Ferney, the applicant's daughter, was born on 19 June 1947 and told the Tribunal that she always thought of her father as fat. She recalled a photograph of her father at her baptism in 1948 showing that at the time he was fat. She said that she thought he had been "pretty well the same" weight until he became more aware of his diet following the diagnosis of hypertension in 1980. She said her father loved food and always ate fat off the bone and liked meat pies, bread, cream and apple pie.Medical evidence Dr Goodwin, Physician, provided a written report dated 17 June 2001, Exhibit A1, and gave oral evidence. In his written report Dr Goodwin noted that on entry to the RAAF the veteran weighed 155lbs and on discharge 181lbs, "almost 20% gain". He also noted that the veteran had many weeks of relative inactivity during his service due to illnesses of mumps and excision of a pilonidal cyst. He stated that the veteran's job as a flight rigger would have required much less physical activity than being a furnaceman and this less demanding physical activity along with increased consumption of more fatty food, more meat, meat pies and diary products would be a certain recipe for a development of ischaemic heart disease. Dr Goodwin opined that the veteran conformed with factor 5(c) of the SoP relating to ischaemic heart disease, being obese for a period of at least two years within the fifteen years immediately before the clinical onset of ischaemic heart disease. He stated:"With nearly 20% weight gain evident during his actual period in the RAAF, on the evidence available, in my opinion, it is more than reasonable conclusion that obesity that was evident in 1980, was associated with adverse eating and physical habits that were required during and because of the nature of his eligible service. In 1980, with a weight of 15 stone or 95 kg, his BMI was 32.5 which is technically obese. Furthermore, such obesity is likely to have been a factor in the development of hypertension, and been a further cause of deterioration in the cause of ischaemic heart disease." In his oral evidence, Dr Goodwin highlighted that hypertension had a very strong application in the development of ischaemic heart disease and that obesity, coupled with inactivity, was almost as strong a factor as hypertension. He was not able to comment on details of the veteran's dietary intake during his period of service and placed major emphasis on the periods of inactivity that the veteran suffered as a result of illnesses in the RAAF, triggering changes in weight and the subsequent weight problems which the veteran had. Dr Goodwin told the Tribunal he had no direct knowledge of the duties of a flight rigger and with respect to the veteran's activities during his service, could not add further to what was in his written report and what he had already said in his oral evidence. Dr Kenardy (Psychologist) in his report dated 27 April 2000 (Exhibit A2) addressed in general terms the questions of high fat diet causing a habitual consumption of high fat foods and the role of habituation in relation to fat consumption."The direct relationship between fat preference and fat consumption has yet to be established, and is likely to be complex and multi-factorial. Furthermore, little is known about the pathways from fat preference and consumption to habit.……At present it cannot be concluded that fat itself is habit forming…..Is it possible that a person (specifically a young adult) could develop a generally increased preference and consumption of fact in excess of need following exposure to elevated levels of fat in a diet, in the presence of a previously lower consumption of fat? The answer is yes, it is possible. However, as stated above, the sole influence of fat itself in causing a specific response with a particular person is very difficult to determine. As stated above higher fat is generally likely to be preferred as a food, and fat generally likely to be over-consumed. Thus any specific conclusions drawn about fat exposure and preference must be tempered by these broader influences on the population of fat consumers. Furthermore, the literature at present does not provide us with the necessary information to address this issue within an individual. It could be stated, however, that the influences on formation of any habitual (eating) behaviours are likely to include factors such as accessibility, sensory and organismic factors, social and cognitive factors, and past experience, that is to say, environmental contingencies. Similar factors are likely to influence ongoing consumption of fat."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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