Temple and Repatriation Commission - [2001] AATA 980

DECISION AND REASONS FOR DECISION [2001] AATA 980

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1342
VETERANS'     APPEALS       DIVISION
  Re:         JACK TEMPLE
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             30 November 2001
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that carotid arterial disease and cerebrovascular accident suffered by the applicant are war-caused with effect from 28 July 1999.

(sgd) Graham Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - carotid arterial disease - cerebrovascular accident - whether war-caused - meaning of clinical onset
Veterans' Entitlements Act 1986 ss9, 120(1), 120(3), 120(4)
Meehan v Repatriation Commission [2001] FCA 597
Re McLeod-Dryden and Repatriation Commission (AAT 13386, 21 October 1998)
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Witten and Repatriation Commission (1998) 54 ALD 605
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

30 November 2001 G.D. Friedman, Member

This is an application by Jack Temple (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 5 September 2000. The VRB affirmed a decision of a delegate of the respondent dated 28 July 1999 to refuse a claim for disability pension for incapacity from cerebral ischaemia.
At the hearing of this matter on 19 October 2001 Mr D. De Marchi, Solicitor, represented the applicant and Mr G. Purcell of Counsel represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T107), together with five exhibits lodged by the applicant (Exhibits A1-A5) and three lodged by the respondent (Exhibits R1-R3).
BACKGROUND
The applicant was born on 7 December 1918. After leaving school he worked in a grocer's shop before joining a solicitor's office as a law clerk. On 31 October 1941 he joined the Australian Army and served in the infantry as a platoon sergeant in New Guinea and Bougainville. On 20 September 1946 he was discharged and took over a family member's furniture removal business, which he operated until his retirement in 1975. He married after his war service and he and his wife had four children, all of whom are married. His wife died in 1989.
While in the Army the applicant started smoking. He ceased in 1979. He also commenced drinking occasionally in the Army, but has been a non-drinker since 1945. The applicant has suffered from hypertension since 1985. In May 1999 he suffered a stroke which left him paralysed in the right side of his body. After treatment and surgery he made a good recovery.
On 12 July 1999 the applicant lodged an application with the respondent for disability pension for incapacity from stroke, carotid artery, later amended to cerebral ischaemia. On 28 July 1999 the respondent refused the application on the grounds that the condition was not war-caused. On 5 September 2000 the VRB affirmed the decision on the grounds that there was no evidence of the clinical onset of the applicant's coronary artery disease within 15 years of his…

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 Temple and Repatriation Commission

Details

AGLC: Temple and Repatriation Commission [2001] AATA 980
Case: [2001] AATA 980
Decision Date: 30 November 2001

CaseChat Overview and Summary

In the matter of Temple and the Repatriation Commission, the Administrative Appeals Tribunal reviewed a decision by the Repatriation Commission to deny the applicant's application for a disability pension, claiming that his conditions were not war-caused. The applicant, a former serviceman, had applied for a disability pension due to carotid artery disease and cerebral ischaemia following a stroke. The Repatriation Commission initially denied the application, and this decision was affirmed by the Veterans' Review Board (VRB). The applicant then sought a review by the Administrative Appeals Tribunal.

The primary legal issues that the Tribunal had to address were whether the applicant's conditions, specifically carotid arterial disease and cerebrovascular accident, were war-caused within the meaning of the relevant statutory provisions and whether these conditions met the criteria set out in the applicable Statements of Principles. The applicant argued that his smoking habit during his service and the onset of his conditions within 15 years of cessation of smoking linked his conditions to his war service. The Tribunal had to determine whether the applicant's smoking habit and the onset of his conditions were sufficient to establish a causal link to his war service.

The Tribunal found that the applicant's smoking habit during his service and the onset of his conditions within 15 years of cessation of smoking established a causal link to his war service. The Tribunal relied on expert evidence from Associate Professor Kenneth Myers, who confirmed that the applicant's conditions could be linked to his war service. The Tribunal concluded that the applicant's conditions were war-caused and set aside the decision of the Repatriation Commission, substituting a decision that the applicant's carotid arterial disease and cerebrovascular accident were war-caused. The Tribunal's decision was based on the applicant meeting the relevant criteria in the applicable Statements of Principles and the evidence presented.

The Tribunal's final order was that the decision of the Repatriation Commission was set aside, and it was substituted with a decision that the applicant's carotid arterial disease and cerebrovascular accident were war-caused, effective from 28 July 1999. The Tribunal's decision provided the applicant with the disability pension he sought, recognising the war-caused nature of his conditions.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T107), together with five exhibits lodged by the applicant (Exhibits A1-A5) and three lodged by the respondent (Exhibits R1-R3). BACKGROUND The applicant was born on 7 December 1918. After leaving school he worked in a grocer's shop before joining a solicitor's office as a law clerk. On 31 October 1941 he joined the Australian Army and served in the infantry as a platoon sergeant in New Guinea and Bougainville. On 20 September 1946 he was discharged and took over a family member's furniture removal business, which he operated until his retirement in 1975. He married after his war service and he and his wife had four children, all of whom are married. His wife died in 1989. While in the Army the applicant started smoking. He ceased in 1979. He also commenced drinking occasionally in the Army, but has been a non-drinker since 1945. The applicant has suffered from hypertension since 1985. In May 1999 he suffered a stroke which left him paralysed in the right side of his body. After treatment and surgery he made a good recovery. On 12 July 1999 the applicant lodged an application with the respondent for disability pension for incapacity from stroke, carotid artery, later amended to cerebral ischaemia. On 28 July 1999 the respondent refused the application on the grounds that the condition was not war-caused. On 5 September 2000 the VRB affirmed the decision on the grounds that there was no evidence of the clinical onset of the applicant's coronary artery disease within 15 years of his cessation of smoking in 1979 and therefore the condition was not war-caused. On 9 November 2000 the applicant sought review by the Tribunal of the decision of the VRB. Following an application to the Tribunal for review of a decision by the respondent which refused to accept breathing problems as war-caused, on 5 June 2001 the Tribunal found that the applicant has asthmatic bronchitis which is a war-caused disease with effect from 10 March 1998, and fixed pension at 90% of the general rate from that date. EVIDENCE The applicant told the Tribunal that he has suffered from high blood pressure and chronic asthmatic bronchitis for many years and this has caused him to give up swimming and pennant bowls. He stated that before suffering the stroke in 1999 he was fairly active, could walk normally and felt that there was nothing wrong with him. The applicant said that although he made a good recovery he does not have much stamina and now has a slight speech impediment. He said that he can do basic housework and is able to use public transport and drive a motor car. The applicant gave evidence that before his Army service he was a non-smoker and was an active sportsman. He said that soon after joining he commenced to smoke cigarettes and increased consumption to 20 cigarettes per day under stressful conditions in New Guinea. He stated that this figure eventually increased to 30 per day. The applicant said that he continued to smoke until 1979 when he ceased the habit.

Evidence

Evidence Before The Court

Following an application to the Tribunal for review of a decision by the respondent which refused to accept breathing problems as war-caused, on 5 June 2001 the Tribunal found that the applicant has asthmatic bronchitis which is a war-caused disease with effect from 10 March 1998, and fixed pension at 90% of the general rate from that date. EVIDENCE The applicant told the Tribunal that he has suffered from high blood pressure and chronic asthmatic bronchitis for many years and this has caused him to give up swimming and pennant bowls. He stated that before suffering the stroke in 1999 he was fairly active, could walk normally and felt that there was nothing wrong with him. The applicant said that although he made a good recovery he does not have much stamina and now has a slight speech impediment. He said that he can do basic housework and is able to use public transport and drive a motor car. The applicant gave evidence that before his Army service he was a non-smoker and was an active sportsman. He said that soon after joining he commenced to smoke cigarettes and increased consumption to 20 cigarettes per day under stressful conditions in New Guinea. He stated that this figure eventually increased to 30 per day. The applicant said that he continued to smoke until 1979 when he ceased the habit. Associate Professor Kenneth Myers, Consultant Surgeon, gave evidence to the Tribunal. He referred to his written report of 11 February 2001 in which he stated:If one literally sticks to the definition of the clinical onset of disability as being the time at which symptoms from the condition first become manifest, then it is clear that there is a period in excess of 15 years between cessation of smoking and development of cerebrovascular insufficiency due to carotid artery disease. Professor Myers told the Tribunal that atherosclerosis (degeneration of the arterial wall) had been developing for many years prior to the stroke, so that at the 15-year cut-off date substantial occlusion or narrowing of the arteries would have occurred. He said that in his opinion Statement of Principles (SoP) Nº 52 of 1999 would be satisfied because clinical onset of cerebrovascular accident occurred within 15 years of the cessation of smoking. In a report dated 30 July 2001 Professor Myers stated:Accordingly if the Statement of Principle allows for both coronary artery disease and carotid artery disease to be accepted in its pre-clinical phase during the fifteen-year interval after a cessation of smoking then the stroke in this patient would most certainly be related to war service. The relevant SoP for carotid arterial disease is Instrument Nº 346 of 1995. Mr De Marchi, on behalf of the applicant, submitted that the applicant meets factor 1(d):Smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of carotid arterial disease and where smoking has ceased, the clinical onset has occurred within 15 years of cessation;

Decision

Reasons for decision

For these reasons, and in the absence of any matter establishing beyond reasonable doubt that that there is no sufficient ground for determining that the conditions of carotid arterial disease and cerebrovascular accident were war-caused diseases, the Tribunal finds that both conditions were war-caused in accordance with s9 of the Act.DECISION The Tribunal sets aside the decision under review and substitutes a decision that carotid arterial disease and cerebrovascular accident suffered by the applicant are war-caused with effect from 28 July 1999.I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of G.D.Friedman, Member(sgd) Catherine Thomas ClerkDate of hearing: 19 October 2001 Date of decision: 30 November 2001Solicitor for applicant: Mr D. De Marchi, De Marchi & AssociatesCounsel for respondent: Mr G. PurcellSolicitor for respondent: Advocacy Section, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

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