Taylor and Repatriation Commission (Veterans' Entitlements) - [2024] ARTA 37

Taylor and Repatriation Commission (Veterans’ Entitlements) [2024] ARTA 37 (22 November 2024)

Applicant/s:  Edith Pamela Taylor
Respondent:  Repatriation Commission
Tribunal Number:                2019/4516

Tribunal:Senior Member McCarthy and Member Ormston
Place:Adelaide
Date:22 November 2024

Decision:The decision under review is affirmed.

.........................[SGND].....................................
Senior Member G McCarthy
..........................[SGND]....................................
Member R Ormston

Catchwords
VETERANS – claim for war widow pension – claim refused because Repatriation Commission and Veterans Review Board not satisfied death was war-caused – application for review to the Administrative Appeals Tribunal – transition of application from AAT to Administrative Review Tribunal – application for review based on two kinds of death: myeloma and renal impairment – death by renal impairment not established on the balance of probabilities – death by myeloma accepted – whether a reasonable hypothesis exists that the veteran’s death by myeloma was war-caused – hypothesis that the death by myeloma was caused by exposure to benzene whilst serving on a ship in World War II – whether hypothesis is reasonable assessed by reference to Statement of Principles concerning myeloma – application of Deledio steps – hypothesis found not reasonable because no relevant and probative evidence the veteran was exposed to benzene for the period at the concentration specified in the Statement of Principles – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024, s 2
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, section 2, Sch 17
Veterans’ Entitlement Act 1986 (Cth) ss 6, 8, 11, 13, 120, 120A, 196B
Cases
Beezley and Repatriation Commission [2015] FCAFC 165
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
East v Repatriation Commission [1987] FCA 242
Ellis v Repatriation Commission [2014] FCA 847
Hamling v Repatriation Commission [1989] FCA
Hill v Repatriation Commission [2009] FCAFC 91
Hill v Repatriation Commission [2005] FCAFC 23
Howard v Repatriation Commission [1999] FCA 1030
Hunter v Repatriation Commission [2010] FCA 145
Kattenberg v Repatriation Commission [2002] FCA 412
Kerns v Repatriation Commission [2022] AATA 357
Re Blake and Military Rehabilitation and Compensation Commission [2016] AATA 434
Re McCall and Repatriation Commission [2006] AATA 1006
Repatriation Commission v Codd [2007] FCA 877 ay [39];
Repatriation Commission v Deledio (1998) FCA 391
Repatriation Commission v Hill [2002] FCAFC 192
Secondary Materials
Department of Veterans’ Affairs SOP Bulletin No. 189, Benzene SOP factors dated 26 June 2023
Statement of Principles concerning MYELOMA No. 69 of 2012
Statement of Principles concerning MYELOMA (Reasonable Hypothesis) No. 95 of 2021
Statement of Principles concerning renal artery atherosclerotic disease (Reasonable Hypothesis) No. 56 of 2021

Statement of Reasons

This application arose from the Applicant’s claim for a war widow’s pension following the death of her husband, Mr Donald Taylor (the Veteran) who served as an officer in the Second World War. The Veteran served in the Australian Army from 4 September 1941 to 11 February 1942 and in the Royal Australian Navy (

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: [2024] ARTA 37
Decision Date: 22 November 2024

CaseChat Overview and Summary

In the case of Taylor and the Repatriation Commission, the primary dispute centred around the cause of the Veteran's renal impairment and its contribution to his death. The matter was heard in the Federal Court of Australia, where the Applicant, Taylor, sought to have the Commission's determination that her late husband's renal impairment was not due to renal artery atherosclerotic disease reviewed. The court was tasked with determining whether there was sufficient evidence to support the Commission's conclusion that the renal impairment was attributable to multiple myeloma rather than atherosclerotic disease.

The key legal issue before the court was whether the evidence presented justified the Commission's finding that the Veteran's renal impairment was primarily due to multiple myeloma, and not renal artery atherosclerotic disease. The Applicant argued that the medical evidence, particularly from Dr Hellestrand, supported the presence of renal artery atherosclerotic disease and its contribution to the Veteran's renal impairment and subsequent death. The Commission, on the other hand, maintained that the evidence did not support a finding that the Veteran's renal impairment was due to renal artery atherosclerotic disease.

The court examined the medical reports and evidence provided by both parties. Dr Hellestrand acknowledged the likelihood of renal artery atherosclerotic disease but did not suggest it as the cause of the renal impairment. Dr Stangenberg concluded that myeloma involvement of the kidney was very likely and that renal artery atherosclerotic disease was unlikely to have caused the rapid deterioration in renal function. The court found that while there was evidence of renal artery atherosclerotic disease, it did not sufficiently demonstrate that this disease was the primary cause of the Veteran's renal impairment or that it contributed to his death. The court ultimately upheld the Commission's determination, finding that the evidence did not support the Applicant's contention that the Veteran's renal artery atherosclerotic disease was a contributing factor to his renal impairment and death.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Commission also relied on Dr Stangenberg’s report dated 6 December 2023 in which she stated that when she saw the Veteran on 13 October 2017 he had “chronic kidney disease stage 3” and that “from early 2018 until the time of his death in May 2018 he had progressively worsening renal function”. Dr Stangenberg concluded:In this case I feel that myeloma involvement of the kidney is very likely although I cannot exclude other aetologies without knowing the full history. While underlying small vessel atherosclerotic disease in the kidney is likely in a 94 year old, it is unlikely to have caused the rapid deterioration in renal function.[39] (emphasis added)[39] Exhibit R4. The Commission contended that whilst the Veteran’s renal impairment is well documented, there is no evidence that it was “a form of atherosclerosis”,[40] meaning (as we understood it) there is no evidence that the renal impairment should be attributed to renal artery atherosclerotic disease. The Commission relied on Dr Hellestrand’s opinion that “myeloma involvement of the kidney is very likely”, and renal artery atherosclerotic disease is “unlikely” to have caused the rapid deterioration in renal function.[40] Respondent's further statement of facts, issues and contentions dated 2 October 2024 at [29]. The Commission noted that in her letter to Dr Hellestrand, the Applicant asked “Is it not a reasonable hypothesis that [the Veteran’s] atherosclerosis which led to his ischaemic heart disease also affected [the Veteran’s] renal arteries and hence caused his renal impairment”. In his report in reply, Dr Hellestrand acknowledged the likelihood of renal atherosclerosis but did not suggest it as a cause of the Veteran’s renal impairment. Regarding cause of the renal impairment, Dr Hellestrand stated only it is “is well known that multiple myeloma can cause renal impairment and even renal failure”. The Commission also submitted there is no evidence that the Veteran’s renal artery atherosclerotic disease (if it existed) caused a partial or complete occlusion of a renal artery or that it warranted medical treatment or that it resulted in poorly controlled hypertension, persistent renal impairment or chronic heart failure, to adopt words from the definition in SOP 56.[41][41] Respondent's further statement of facts, issues and contentions dated 2 October 2024 at [29]. In reply, the Applicant challenged the Commission’s contention that there is “no evidence” to support a finding that the Veteran suffered from renal artery atherosclerotic disease. She relied on the passage in Dr Hellestrand’s report quoted above that this disease was “likely” and medical evidence of the Veteran suffering from at least three of the listed clinical manifestations of it.[42][42] Applicant's response to Respondent's further statement of facts, issues and contentions dated 4 October 2024 at [3] – [13]. In reply to the opinion of Dr Stangenberg (in her report) that the Veteran’s multiple myeloma was a likely contributor to his renal impairment, the Applicant acknowledged that to be so but contended that does not mean, she said, the Veteran’s likely renal artery atherosclerotic disease did not also contribute to the renal impairment which, she said, was a cause of death. The Applicant drew on paragraph 7(5) of SOP 56 which provides:Death from renal artery atherosclerotic disease(5) For the purpose of this Statement of Principles, renal artery atherosclerotic disease, in relation to a person, includes death from a terminal event or condition that was contributed to by the person’s renal artery atherosclerotic disease. (emphasis added)Consideration of renal impairment