Ward and Repatriation Commission - [2002] AATA 897

DECISION AND REASONS FOR DECISION [2002] AATA 897

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1549
VETERANS'     APPEALS      DIVISION
  Re:         DOROTHY RUBY WARD
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             7 October 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - claim by widow - smoking - whether war-caused
Veterans' Entitlements Act 1986 ss8, 119, 120(1), 120(3), 120(4), 120A(3)
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keenan (1989) 19 ALD 509
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

7 October 2002 G.D. Friedman, Member

This is an application by Dorothy Ruby Ward (the applicant), widow of Louis Raymond Edwin Ward (the veteran), for review of a decision of the Veterans' Review Board (VRB) dated 11 September 2001. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 17 March 1999, to refuse a claim for disability pension for death from diabetes mellitus, ischaemic heart disease and atherosclerotic peripheral vascular disease, because the death was not war-caused.
At the hearing of this matter on 26 September 2002 Mr D. Hyde, of counsel, 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-T203), together with one exhibit (Exhibit A1) lodged by the applicant and eight exhibits (Exhibits R1-R8) lodged by the respondent.
BACKGROUND
The veteran was born on 8 March 1922. On 22 January 1942 he enlisted in the Australian Army (the army) and served in Victoria, South Australia and the Northern Territory until 4 July 1945. As he served in the Northern Territory, north of the parallel 14 degrees 30 minutes south latitude, during the required period in World War 2, the period 22 January 1942 to 4 July 1945 constitutes operational service in accordance with s8 of the Veterans' Entitlements Act 1986 (the Act).
After his discharge from the army the veteran worked in a textile mill, drove a milkcart and then became a sales representative for a vegetable oil company. He retired in 1982. In 1984 he was diagnosed with diabetes and heart problems, and in 1986 he underwent major heart surgery. In 1989 the veteran and the applicant moved to Cobram in rural Victoria. In 1994 and 1995 complications arising from diabetes resulted in leg amputations. On 3 July 1995 the veteran applied for disability pension for heart problems and other disabilities. He died on 14 October 1995 before a decision was made.
On 18 March 1996 the applicant applied for war widow's pension. On 15 May 1996 the respondent refused her claim and the veteran's claim (with the exception of hearing loss). On 11 December 1997 the VRB affirmed the decision that the death of the veteran was not causally related to service.
On 17 March…

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 Ward and Repatriation Commission

Details

AGLC: Ward and Repatriation Commission [2002] AATA 897
Case: [2002] AATA 897
Decision Date: 7 October 2002

CaseChat Overview and Summary

In the matter of Ward and Repatriation Commission, the applicant, a widow, sought a war widow's pension under the Veterans' Entitlements Act 1986, claiming that the veteran's death was causally related to his service. The Repatriation Commission (the Commission) refused the claim, and this decision was affirmed by the Veterans' Review Board (the VRB). The applicant appealed to the Administrative Appeals Tribunal (the Tribunal) for review of the VRB's decision. The central issue before the Tribunal was whether there was sufficient evidence to establish a reasonable hypothesis that the veteran's death was causally related to his war service, specifically through his smoking habit during and after his service.

The Tribunal considered the evidence provided by the applicant and the veteran's daughter, Ms Kardella, regarding the veteran's smoking habits. The applicant testified that the veteran smoked between 10 to 20 cigarettes a day after his discharge from the army, and possibly up to 30 during his service, based on a completed smoking questionnaire. However, Ms Kardella's statement indicated that the veteran was a modest smoker, consuming only 5-8 cigarettes a day. The Tribunal also noted discrepancies in medical records, which often listed the veteran as a non-smoker. Given these inconsistencies, the Tribunal needed to determine if the evidence supported a reasonable hypothesis that the veteran's smoking during his service was a contributing factor to his death.

The Tribunal applied the four-step process outlined in Repatriation Commission v Deledio to assess the evidence. The first step involved considering all the material before the Tribunal and determining whether it pointed to a hypothesis connecting the veteran's death with his service. The second step required ascertaining whether there was a relevant Statement of Principles (SoP) in force. The third step involved forming an opinion on whether the hypothesis raised was reasonable, considering the template provided by the SoP. The final step required the Tribunal to make findings on questions of fact.

The Tribunal concluded that the evidence did not support a reasonable hypothesis that the veteran's smoking during his service was causally linked to his death. Despite acknowledging the veteran's smoking habit, the inconsistencies in the evidence and the medical records listing him as a non-smoker undermined the applicant's claims. The Tribunal found that the hypothesis could not be sustained beyond reasonable doubt, and thus, the claim was dismissed. The Tribunal affirmed the decision of the VRB, maintaining that the veteran's death was not causally related to his war service.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T203), together with one exhibit (Exhibit A1) lodged by the applicant and eight exhibits (Exhibits R1-R8) lodged by the respondent. BACKGROUND The veteran was born on 8 March 1922. On 22 January 1942 he enlisted in the Australian Army (the army) and served in Victoria, South Australia and the Northern Territory until 4 July 1945. As he served in the Northern Territory, north of the parallel 14 degrees 30 minutes south latitude, during the required period in World War 2, the period 22 January 1942 to 4 July 1945 constitutes operational service in accordance with s8 of the Veterans' Entitlements Act 1986 (the Act). After his discharge from the army the veteran worked in a textile mill, drove a milkcart and then became a sales representative for a vegetable oil company. He retired in 1982. In 1984 he was diagnosed with diabetes and heart problems, and in 1986 he underwent major heart surgery. In 1989 the veteran and the applicant moved to Cobram in rural Victoria. In 1994 and 1995 complications arising from diabetes resulted in leg amputations. On 3 July 1995 the veteran applied for disability pension for heart problems and other disabilities. He died on 14 October 1995 before a decision was made. On 18 March 1996 the applicant applied for war widow's pension. On 15 May 1996 the respondent refused her claim and the veteran's claim (with the exception of hearing loss). On 11 December 1997 the VRB affirmed the decision that the death of the veteran was not causally related to service. On 17 March 1999 the respondent refused a further claim and on 3 December 2001 the applicant lodged an application with the Tribunal for review of the decision of the VRB dated 11 September 2001. EVIDENCE The applicant gave oral evidence by telephone. She said that she met the veteran in early 1942 when he was already in the army. They married in 1944. The applicant stated that the veteran was a light smoker when she met him and she observed him smoking occasionally when he was on leave from the army. She said that after his discharge the veteran's smoking habit increased and he smoked in a sunroom at the rear of the house. She was unable to be precise about the number of cigarettes smoked by him as she did not take much interest and was a non-smoker. She estimated the daily figure at around 10 per day and up to 20 per day based on the cigarette packets she saw around the house. The applicant told the Tribunal that during the veteran's 22 years employment as a sales representative he was away from Monday to Friday each week. Consequently, she was unable to give evidence about his smoking habit during the week, although she said that on his return she could smell tobacco upon him. The applicant said that when the veteran developed severe heart and other medical conditions he gave up smoking in about 1984 or after his heart surgery in 1986. In a smoking questionnaire signed by the applicant in 1997 she noted that the veteran commenced smoking on service in 1941 and that he smoked 20-30 cigarettes per day. Under cross-examination the applicant conceded that the questionnaire was completed by a representative of the Returned Services League, and she had no recollection of the matter. She also acknowledged that some of the information provided in the questionnaire might not be accurate.

Evidence

Evidence Before The Court

On 17 March 1999 the respondent refused a further claim and on 3 December 2001 the applicant lodged an application with the Tribunal for review of the decision of the VRB dated 11 September 2001. EVIDENCE The applicant gave oral evidence by telephone. She said that she met the veteran in early 1942 when he was already in the army. They married in 1944. The applicant stated that the veteran was a light smoker when she met him and she observed him smoking occasionally when he was on leave from the army. She said that after his discharge the veteran's smoking habit increased and he smoked in a sunroom at the rear of the house. She was unable to be precise about the number of cigarettes smoked by him as she did not take much interest and was a non-smoker. She estimated the daily figure at around 10 per day and up to 20 per day based on the cigarette packets she saw around the house. The applicant told the Tribunal that during the veteran's 22 years employment as a sales representative he was away from Monday to Friday each week. Consequently, she was unable to give evidence about his smoking habit during the week, although she said that on his return she could smell tobacco upon him. The applicant said that when the veteran developed severe heart and other medical conditions he gave up smoking in about 1984 or after his heart surgery in 1986. In a smoking questionnaire signed by the applicant in 1997 she noted that the veteran commenced smoking on service in 1941 and that he smoked 20-30 cigarettes per day. Under cross-examination the applicant conceded that the questionnaire was completed by a representative of the Returned Services League, and she had no recollection of the matter. She also acknowledged that some of the information provided in the questionnaire might not be accurate. In relation to the veteran's duties in the army, the applicant stated that he was a driver and when in the Northern Territory and South Australia he spent long hours on his own in remote locations. She said that boredom and peer pressure might have contributed to an increase in his smoking habit, although he did not discuss the matter with her. The applicant explained that at the first VRB hearing her representative had discussed the claim beforehand with the veteran, but she was unaware of the reasons that the claim proceeded on the basis of passive smoking rather than actual smoking. In relation to entries in medical records tendered in evidence in which a number of medical practitioners recorded non-smoker …tobacco nil, …smoke never concerning the veteran, the applicant suggested that most of these notations were made after the applicant had given up smoking and therefore were accurate. In an undated written statement Ms D. Kardella, the veteran's daughter, said that according to her recollection the veteran was a modest smoker who enjoyed smoking at home. She estimated his daily consumption at 5-8 cigarettes throughout his life. CONSIDERATION OF THE ISSUES The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.

Decision

Reasons for decision

For this reason, in all the circumstances, the Tribunal is satisfied beyond reasonable doubt that the applicant does not satisfy the fourth step. Therefore, the hypothesis cannot be sustained and the Tribunal finds that the conditions were not war-caused. DECISION The Tribunal affirms the decision under review.I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision of: G.D.Friedman, Member(sgd) Olympia Sarrinikolaou ClerkDate of hearing: 26 September 2002 Date of decision: 7 October 2002Counsel for applicant: Mr D. HydeSolicitor for applicant: De Marchi & AssociatesCounsel for respondent: Mr G. PurcellSolicitor for respondent: Advocacy Section, Department of Veterans' Affairs

Ratio Decidendi

Legal Principle Established

In an undated written statement Ms D. Kardella, the veteran's daughter, said that according to her recollection the veteran was a modest smoker who enjoyed smoking at home. She estimated his daily consumption at 5-8 cigarettes throughout his life. CONSIDERATION OF THE ISSUES The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran. The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis; that is to say, the hypothesis is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact. Mr Hyde submitted that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran, and that the hypothesis fits within the template and is reasonable. He acknowledged that there were inconsistencies between the evidence of the applicant and Ms Kardella concerning the veteran's cigarette consumption. He also noted that in documentation dated between 1984 and 1986 medical practitioners had recorded that the veteran was a non-smoker. However, Mr Hyde referred to the beneficial nature of the legislation and submitted that although the details of cigarette consumption outlined by the applicant and Ms Kardella were imprecise, the Tribunal should find that the veteran was a smoker during his army service and after the war. Mr Hyde said that if the Tribunal accepts that the veteran was a smoker then on the evidence the Tribunal would be entitled to conclude that a factor in the relevant SoPs concerning the level of cigarette smoking in at least one of the claimed conditions would be met. On the question of a causal link with operational service, Mr Hyde submitted that the veteran was in the Darwin area of the Northern Territory at the time of Japanese bombing in 1943. The Tribunal could draw an inference that the stress arising from this situation, as well as other factors, such as boredom and peer pressure, during the veteran's army service might have led to an increase in cigarette consumption.