Stuart and Repatriation Commission (Veterans' entitlements) - [2018] AATA 694

Stuart and Repatriation Commission (Veterans' entitlements) [2018] AATA 694 (29 March 2018)
Division:Veterans' Appeals Division
File Number(s): 2016/1983
Re:Shirley Stuart
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:29 March 2018
Place:Brisbane

I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement Act 1986, the date of effect of this decision is 20 December 2014.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veteran deceased – cause of death lung cancer – claim for pension by widow – standard of proof ss 120(1), 120(3) and 120A of the Act – relevant Statement of Principles – whether operational service rendered – whether death related to operational service – whether there is a reasonable hypothesis supported by the relevant SoP – Deledio steps – factors of the SoP are satisfied – reasonable hypothesis raised connecting the death of veteran with his service – decision under review set aside and substituted – applicant entitled to widow’s pension.
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Repatriation Commission and Kohn (1989) 87 ALR 511
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Bawden (2012) 206 FCR 296
Forrester v Repatriation Commission [2013] FCA 898
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Repatriation Commission v Stares (1996) 66 FCR 594
Byrnes v Repatriation Commission (1993) 177 CLR 564.
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v McKenna (1992) 175 CLR 408
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 147 CLR 635
Collins v Repatriation Commission (2009) 177 FCR 280
Knight v Repatriation Commission (2010) 52 AAR 547
Re Keenan and Repatriation Commission (1990) 21 ALD 289
Re Everett and Repatriation Commission (1991) 23 ALD 529
Repatriation Commission v Tuite [1993] FCA 39; (1993) 39 FCR 540
Cooke v Repatriation Commission (1997) 45 ALD 205
SECONDARY MATERIALS
Statement of Principles (SoP) concerning malignant neoplasm of the lung (Instrument No.92 of 2014)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
29 March 2018
INTRODUCTION

The applicant in this matter is Mrs Shirley Stuart. She is the wife of the late veteran Mr William Gordon Stuart, who passed away on 23 August 1977 at the age of 81 years. Mr Stuart was not in receipt of a pension prior to his death.
The applicant submitted a claim to the Department of Veterans’ Affairs (“DVA”) for the payment of war widows’ pension on the basis that the death of her husband was related to his service. On 28 April 2015, the respondent decided that the death of Mr Stuart was not related to service, and therefore a war widows’ pension was…

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: [2018] AATA 694
Decision Date: 29 March 2018

CaseChat Overview and Summary

This case concerned a claim for a widow's pension by the applicant, whose veteran husband died from lung cancer. The dispute centred on whether the veteran's death was war-caused, which required determining if his lung cancer was related to his operational service. The matter was heard by Deputy President McDermott.

The court was required to determine whether a reasonable hypothesis existed, supported by the relevant Statement of Principles (SoP), that the veteran's death from lung cancer was related to his operational service. This involved assessing the evidence regarding the veteran's smoking habits, when they commenced, and whether these habits were influenced by his military service, particularly during World War II.

The court applied the four-step process established in *Repatriation Commission v Deledio*. It found that the veteran's service in 1945 constituted operational service. The court considered the conflicting evidence regarding the commencement of the veteran's smoking, noting statements from the applicant and the veteran's step-son. Crucially, the court identified that the step-son's statement, referring to smoke-filled offices during wartime and the veteran's exposure to potential environmental hazards like radon and beryllium, raised a hypothesis consistent with factor 6(b) of the relevant SoP. This factor related to exposure to certain environmental conditions during service.

The court set aside the previous decision and substituted a new decision finding that the veteran's death was war-caused, entitling the applicant to a widow's pension. The decision was to take effect from 20 December 2014.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I find that the veteran’s service over the two days in 1945 is properly characterised as service outside of Australia and on that basis that the veteran’s service from 17 June 1940 to 29 October 1945 constitutes eligible war service in the form of operational service within the meaning of the Act.[7] [7] Sections 6A(1) Items 1(a) and 1(c), section 5B(3) and 7 of the ActEVIDENCE The death certificate of the veteran states the cause of death was bronchopneumonia and bronchogenic carcinoma.[8] The length of the illness of bronchogenic carcinoma is listed as two years before the veteran’s death on 23 August 1977. There is no other medical documentation in evidence. [8] Exhibit A, T-documents, T6 at p. 1B There is a lack of first hand evidence of the veteran’s smoking habits, and when they were formed. The applicant indicated in a Smoking Questionnaire Form completed on 23 January 2015 that the veteran had commenced smoking on a regular basis in 1940. She further stated that the reason the veteran started smoking was: “the stress of re-enlisting after being in WW1 and the events of the war caused him to start smoking in the RAAF”.[9] [9] Exhibit A, T-documents, T8 at p. 4 However, in a Claimant Report on cigarette smoking completed by the applicant on 8 January 2001 she indicated in relation to when the veteran commenced smoking: “Date of commencement unknown. He was smoking when I met him in 1952”. The applicant further states in response to why the veteran started to smoke cigarettes: “He said it helped to calm his nerves”.[10][10] Exhibit A, T-documents, T7 at p. 2 The applicant’s step-son Mr Peter Stuart submitted a statement dated 16 June 2016 in which he stated:[11]“… I can state, emphatically, that my father began smoking the strong, unfiltered cigarettes… when they became available part-way through his service in the RAAF. I believe he probably started smoking milder domestic brands before taking up the American brands mentioned when he gained access to the US Air Force PX stores in Ballarat. He continued smoking those brands for more than 12 years until he moved out of my life…As to whether he smoked before World War II I cannot say with certainty. But I believe, on the balance of probability, that it was unlikely he smoked cigarettes until, perhaps, the early 1940’s.”[11] Exhibit B, Statement of Mr Peter Stuart dated 16 June 2016 at p. 1 Mr Stuart also said of his father: “He definitely did not smoke during his service in the Royal Marines in World War 1, and his athleticism and financial state during the years between 1925 and 1940 made it unlikely he smoked then”.[12] [12] Exhibit B, Statement of Mr Peter Stuart dated 16 June 2016 at p. 1 Mr Stuart further cited discussions that he had with the veteran’s first wife and the daughter to his first wife where they failed to mention that the veteran smoked.SUBMISSIONS The applicant submitted that a reasonable hypothesis can be established that the veteran’s smoking habits commenced in 1940 during WWII based on the evidence of the applicant and the veteran’s son, Mr Stuart, where they outline that the veteran particularly liked American branded cigarettes and that he did not smoke during WWI.

Decision

Reasons for decision

There are a number of matters that would have required investigation. The statement of Mr Stuart which refers to the smoke filled offices used by the veteran during wartime fairly and squarely raises for consideration a hypothesis which is based on factor 6(b) of the SoP. The veteran suffered dengue fever during World War II. He also had possible exposure to radon and beryllium as radon and beryllium were used for aircraft equipment. DECISION I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement Act 1986, the date of effect of this decision is 20 December 2014.

Ratio Decidendi

Legal Principle Established

The respondent submitted that a hypothesis cannot be raised as the material does not point to a hypothesis that the applicant commenced smoking in WWII nor that his smoking habit was influenced or increased by his service. The respondent submitted that the evidence of the applicant and her step-son Mr Stuart was not a first-hand account but rather it was based on inferences drawn from the veterans’ physical health during WWI, which the applicant states would have prevented him from taking up smoking; his first wife’s aversion to cigarette smoking, which may have prevented him from smoking; and his financial incapacity, which may have made cigarettes unaffordable for him between 1925 and 1940.CONSIDERATION The applicant is eligible for a pension if it can be shown that the veteran’s death was related to his operational service, by way of a reasonable hypothesis supported by the relevant SoP.[13][13] See Veteran’s Entitlement Act 1986, section 120A The Full Court of the Federal Court of Australia in Repatriation Commission v Deledio[14] (“Deledio”) formulated this four-step process:[15] (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 a hypothesis, the Tribunal must then ascertain whether there is in force a [Statement of Principles (SoP)] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. (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 s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.[16][14] (1998) 83 FCR 82 at [82]-[83][15] Repatriation Commission v Bawden (2012) 206 FCR 296 at [40][16] Deledio at [82]-[83]