Vicki Chaney and Repatriation Commission

Case [2015] AATA 286

[2015] AATA 286

Division VETERANS’ APPEALS DIVISION

File Number(s)

2013/6594

Re

Vicki Chaney

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal The Hon. Brian Tamberlin, QC, Deputy President
Date 1 May 2015
Place Sydney

The decision under review is affirmed.

....................[sgd]....................................................

The Hon. Brian Tamberlin, QC, Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – widow’s pension – whether veteran’s death was connected to service – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 ss 69, 70, 120, 196B

CASES

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
Re Gardiner and Repatriation Commission [2007] AATA 1330
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Smith (1987) 15 FCR 327
Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40
Walsh v Rother District Council [1978] 1 All ER 510

Wedderspoon v Minister of Pensions [1947] KB 562

SECONDARY MATERIALS

Statement of Principles concerning joint instability No. 33 of 2010

Statement of Principles concerning moderate to severe traumatic brain injury No. 63 of 2012

Statement of Principles concerning osteoarthritis No. 14 of 2010 as amended

REASONS FOR DECISION

The Hon. Brian Tamberlin, QC, Deputy President

1 May 2015

  1. This is an application by the widow of a deceased veteran for a review of a decision of the Respondent which was affirmed by Veterans’ Review Board on 18 November 2013 refusing her claim for a pension based on the death of her husband on 8 June 2012 at the age of 59 years. The Veterans’ Review Board was “reasonably satisfied” that the material before it did not raise a connection between Mr Chaney’s death and the relevant service as required by the Veterans’ Entitlements Act 1986 (the Act).

    BACKGROUND

  2. The Applicant’s husband (the Veteran) served in the Australian Army from 1 May 1974 to 8 January 1998. This service is recognised as eligible defence service under s 69 of the Act.

  3. Under s 70 of the Act wherever a death of a member of the Forces was defence-caused, the Commonwealth is liable to pay compensation to the dependants of the member in accordance with the Act.

  4. Section 70(5) provides that the death of a member of the Forces shall be taken to be a defence-caused injury or a disease contracted by such member shall be taken to be if the death arose out of, or was attributable, to any defence service or peacekeeping service of the member.

  5. Under s 196B if the Repatriation Medical Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to eligible war service or defence service, the Authority must determine a Statement of Principles (SoP) in respect of that kind of injury, disease or death, setting out the factors that must exist and which of those factors must be related to…

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Vicki Chaney and Repatriation Commission [2015] AATA 286
Case
[2015] AATA 286
Decision Date

CaseChat Overview and Summary

Vicki Chaney sought a review of the decision of the Respondent and the Veterans’ Review Board which refused her claim for a pension based on the death of her husband, Mr. Chaney, who died on 8 June 2012. The Board held that the evidence did not establish a connection between his death and his service in the Australian Army. The Applicant contended that the Tribunal should find to its reasonable satisfaction that the Veteran suffered osteoarthritis as a result of his service, which caused joint instability that ultimately caused him to fall and suffer blunt force injuries to his head and neck that caused his death. The case raised questions regarding whether the death of the veteran was connected to his service, and whether the Tribunal was satisfied to a reasonable degree that the death was caused by or attributable to his service.

The court needed to determine whether there was sufficient evidence to establish a connection between Mr. Chaney’s death and his service in the Australian Army. The Applicant relied on the Statements of Principles concerning osteoarthritis and joint instability, but the court found that there was no evidence that the joint instability and subsequent fall were connected to his service. The court found that there was no direct or circumstantial evidence to support the inference that the joint instability in the Veteran's left knee caused or contributed to his accident and subsequent death. The court held that the attempts to infer a connection between the Veteran’s service and his death were speculative and did not justify such a conclusion.

The court found that the Applicant had not provided sufficient evidence to establish a connection between Mr. Chaney’s death and his service in the Australian Army. The decision under review was affirmed, and the Applicant's claim for a pension was dismissed. The court held that the material before it did not raise a connection between Mr. Chaney’s death and his service, and therefore the decision of the Respondent and the Veterans’ Review Board was correct. The court found that the evidence did not support a conclusion to the reasonable satisfaction of the Tribunal that the death was defence-caused or attributable to any defence service.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application by the widow of a deceased veteran for a review of a decision of the Respondent which was affirmed by Veterans’ Review Board on 18 November 2013 refusing her claim for a pension based on the death of her husband on 8 June 2012 at the age of 59 years. The Veterans’ Review Board was “reasonably satisfied” that the material before it did not raise a connection between Mr Chaney’s death and the relevant service as required by the Veterans’ Entitlements Act 1986 (the Act).BACKGROUND The Applicant’s husband (the Veteran) served in the Australian Army from 1 May 1974 to 8 January 1998. This service is recognised as eligible defence service under s 69 of the Act. Under s 70 of the Act wherever a death of a member of the Forces was defence-caused, the Commonwealth is liable to pay compensation to the dependants of the member in accordance with the Act. Section 70(5) provides that the death of a member of the Forces shall be taken to be a defence-caused injury or a disease contracted by such member shall be taken to be if the death arose out of, or was attributable, to any defence service or peacekeeping service of the member. Under s 196B if the Repatriation Medical Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to eligible war service or defence service, the Authority must determine a Statement of Principles (SoP) in respect of that kind of injury, disease or death, setting out the factors that must exist and which of those factors must be related to service rendered by a person before it can be said on the balance of probabilities that an injury, disease or death is connected with the circumstances of that service. By section 196B(14) a factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if, relevantly, it arose out of, or was attributable to, that service or was contributed to in a material degree by, or was aggravated by, that service. Under s 120(4) the Respondent or the Tribunal must in making a determination or decision in respect of a matter arising under the Act decide the matter to its reasonable satisfaction. The Applicant refers to the SoP concerning osteoarthritis No. 14 of 2010 (as amended) and also to the SoP concerning joint instability No. 33 of 2010. The Applicant contends that the Tribunal should find to its reasonable satisfaction within s 120(4) that the Veteran suffered osteoarthritis as a result of his service, and that this condition caused joint instability that ultimately caused him to fall and suffer blunt force injuries to his head and neck that caused his death. The autopsy report for the Coroner (T-document T12, pp. 121-127) dated 6 August 2012 by Dr Irvine, pathologist, concludes that the direct cause of death was “blunt force injuries of head and neck”. There was space for recording antecedent causes but there are none specified.

Evidence

Evidence Before The Court

The Respondent contends that there is no SoP relevant which applies to circumstances where death is caused by “blunt force injuries of the head and neck”, but accepts that it is possible that the SoP concerning moderate to severe traumatic brain injury No. 63 of 2012 could apply in this matter but submits that no factor within the SoP is able to be causally related to the Veteran’s service. The Respondent notes that the fall happened 14 years after the conclusion of the Veteran’s service and if it is accepted that the Veteran had climbed the roof with known knee problems and a history of knee failure related falls then s 70(10) precludes compensation being payable.EVIDENCE The Applicant gave evidence that she met her husband in 1982. He was then serving at Holsworthy where he completed most of his service. Her husband was very quiet and did not discuss his physical problems with her to any extent. She noted over the years that his left knee troubled him more than any other problem. He would take an early morning walk because he felt he needed to move to stop his legs becoming stiff. A pattern developed whereby he would come home early and relax, take a pain killer and go to bed. He used to go to a chiropractor but he thought that the treatment was aggravating the condition. The Applicant noted that in mid-November 2011 when they were at a club she saw that the Veteran’s left knee had come completely out of its socket and she watched him knock it back in. It was his left knee that gave him all the trouble and she noted that his left leg was much less substantial than his right leg. She also recollected that in December 2011 he could not hold his weight with his left leg and he slipped off the seat and down the steps of a bus. He had been a very fit man in previous years and until the early 1990s he would regularly run distances of five kilometres or more. He had an arthroscopy on his knee in about 1990. He would not use crutches as he did not want to be seen as disabled. The Veteran had fallen on a retaining wall a couple of months before his death but did not tell the family what had happened until he started to worry that he had broken his hip. The Veteran discussed matters with his wife and just before his death they decided that because of his knees he should not do repairs around the house anymore. The Applicant believes that the Veteran waited until she had gone to work and then climbed up a ladder to check out that workmen had done a proper job on the roof. Precisely what occurred at this time is not known as there was no one present, but it appears that he fell from the roof of his house, injured his head and died. The Applicant mentioned that the Veteran’s arm and wrist muscles were very strong and that if he had something to grab on he would not have fallen in her opinion. Evidence was also given by Mr Crump who employed the Veteran in the years prior to his death and who noticed that his left knee definitely slowed him down in the last couple of years of his life. He noticed that the Veteran would limp placing his weight on his right leg, and when he was working and going up steps he would support himself with his arms on the rails because of pain in his left knee. He noticed that the Veteran massaged his knee like it was giving him grief.

Decision

Reasons for decision

Accordingly, I am not satisfied that the material before me can support a conclusion to my reasonable satisfaction that there is any probative evidence that the death was defence-caused, in that it arose out of or was attributable to, in any way, solely or partially to any defence service.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

See also Re Gardiner and Repatriation Commission [2007] AATA 1330.CONSIDERATION The evidence establishes in my view that the Applicant suffered from osteoarthritis and also from joint instability in the left knee at the time of his death. There was a history of the left knee giving way and of tender, swollen and unstable knee joints. The evidence directed to the left knee indicates that it would give him most of the trouble and could give way. The evidence also indicates that his left knee caused him to fall down, especially in the last years of his life and this problem was linked to his service. However, there is no evidence that his left knee problem caused or contributed to his accident. There was no one present to witness the fall of the Veteran from the roof and therefore a complete lack of any direct evidence as to what occurred. Nor is there any useful circumstantial or contextual evidence as to what occurred. The submissions to the effect that there was some connection between the joint instability and the death is therefore a matter of inference without any basis to back up the inference sought to be made in this case. The Applicant has led some evidence that at the time of the accident, it is more likely than not there was no rain at the premises and indeed there was no evidence as to the roof itself being slippery or moist. The evidence before the Coroner indicates that the Veteran had a history of atrial fibrillation and hypertension in addition to degenerative joint disease in the knees. There is no evidence of any breakage, fracturing or failure of the left knee consistent with that being a contributing cause of the death. Some of the evidence from the medical records speculates that weakness of the left knee may have been the cause of the fall but there is no sound basis for such a conclusion and are no more than speculation. There is evidence that some x-rays were obtained but these show no fracture or acute injury. The left leg possibly had a fracture at some levels as it was externally rotated and slightly shortened, but no fracture was identified on manual examination or on x-rays of the hips and knees. The medical history of the Veteran until the date of death indicates that he had cardiac arrhythmia, depression, glaucoma and hypertension. In the absence of any evidence as to what occurred, the Applicant makes a suggestion that because of the history of joint instability and in the absence of any evidence that there was any other operative medical condition, then it should be concluded that the fall and death were consistent with failure of the left knee. In my opinion, these attempts to infer that there was a connection between eligible defence service and the death in this case, in the absence of any indication whatsoever as to what happened at the time of death, is speculation and falls far short of a justification for reaching such a conclusion. Accordingly, I am not satisfied that the material before me can support a conclusion to my reasonable satisfaction that there is any probative evidence that the death was defence-caused, in that it arose out of or was attributable to, in any way, solely or partially to any defence service.DECISION