Warden and Repatriation Commission - [2002] AATA 909

DECISION AND REASONS FOR DECISION [2002] AATA 909

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/44

VETERANS' APPEALS DIVISION       )
           Re      KENNETH WARDEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date11 October 2002
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the Tribunal's reasons for decision.

(Sgd) B J McCabe
Member
CATCHWORDS
VETERANS' AFFAIRS – pension - entitlement – whether the injury or illness the applicant is suffering from is war caused - ischaemic heart disease – whether reasonable hypothesis connecting disease with operational service

Veterans' Entitlements Act 1986

Davenport v Repatriation Commission [1997] FCA 918

REASONS FOR DECISION

11 October 2002 Mr B J McCabe, Member

Introduction

Kenneth Warden is suffering from ischaemic heart disease. He was a heavy smoker during his years of service with the navy, a fact that apparently contributed to the development of his coronary disease. He says he started smoking while on board HMAS Melbourne, an aircraft carrier, during a brief period in 1962 when the ship was on operational service as part of the Far Eastern Strategic Reserve.
The respondent did not deny Mr Warden smoked during his time in the navy, or that his heart disease was connected to his smoking. But it refused to accept Mr Warden's claim that he started smoking during his brief period of operational service in 1962. The Veterans' Review Board affirmed that decision. The applicant now asks the Tribunal to vary that decision. It follows the dispute turns on my assessment of the facts. The standard of proof applicable in this case is set out at ss 120(1) and (3) of the Veterans' Entitlements Act 1986.
The Material Before the Tribunal
The Tribunal was provided with the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The applicant also tendered statements prepared by Mr Warden and his wife, Marion Warden. The respondent tendered the transcript of evidence taken at the hearing before the Veterans' Review Board on 6 December 2001. I was also referred to the relevant Statement of Principles concerning ischaemic heart disease.
The Facts
The applicant enlisted in the Royal Australian Navy (the RAN) on 9 July 1951. He was discharged on 8 July 1971. He served on HMAS Melbourne from 28 November 1961 until late 1962. Between 28 February and 16 March 1962, the applicant rendered eligible service aboard the Melbourne. There was no dispute about the applicant's service.
Prior to serving on the Melbourne, he served on a variety of other vessels. He always served below decks on those ships, in the engineering spaces. When he transferred to the Melbourne in 1961, Mr Warden commenced his service below decks monitoring and maintaining machinery. He said in his evidence that it was routine, uneventful work. He said it was boring.
Mr Warden undertook training and accreditation in a number of specialist areas while serving…

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 Warden and Repatriation Commission

Details

AGLC: Warden and Repatriation Commission [2002] AATA 909
Case: [2002] AATA 909
Decision Date: 11 October 2002

CaseChat Overview and Summary

In the case of Warden and Repatriation Commission, the applicant, a veteran, sought to establish that his ischaemic heart disease was causally connected with his service in the armed forces. The court was tasked with determining whether the disease was related to his operational service under the Veterans' Entitlements Act 1986. The primary issue before the court was whether there was a reasonable hypothesis connecting the applicant's ischaemic heart disease with his eligible service, considering the statutory requirement that a claim must be found to have been caused by service unless the decision-maker is satisfied beyond reasonable doubt that there is no such connection.

The court examined the applicant's account of taking up smoking due to stress from his duties and the high-pressure environment on the flight deck, which occurred during his operational service. The applicant provided a plausible explanation and was deemed an honest witness despite his memory lapses. The court accepted that the applicant began smoking around the time of a significant incident with an aircraft and shortly after receiving a qualification in refrigeration. By considering the relevant Statement of Principles, the court concluded that there was a reasonable hypothesis connecting the applicant's ischaemic heart disease with his service. Therefore, the court found that the ischaemic heart disease was causally connected with the applicant's eligible service.

In light of these findings, the court set aside the decision of the Veterans' Review Board and directed the Repatriation Commission to reassess the applicant's claim in accordance with the court's reasons. This decision ensures that the applicant's claim is reconsidered with the appropriate legal standards in mind.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have considered the standard of proof imposed by ss 120(1) and (3) of the Act. The applicant's account is plausible, and I accept it is accurate. I am satisfied he took up smoking shortly after he transferred to the flight deck because of stress associated with his familiar duties and the high pressure environment. I am satisfied he was on operational service at the time. It follows I am satisfied the applicant's ischaemic heart disease is causally connected with his eligible service.Conclusion I set aside the decision of the Veterans' Review Board and remit the matter to be dealt with by the respondent in accordance with these reasons. I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, MemberSigned: ..................................................................................... AssociateDate of Hearing 4 October 2002 Date of Decision 11 October 2002Solicitor for the Applicant Ms Haney, Streeting Haney Lawyers Solicitor for the Respondent Mr Smith, Departmental Advocate

Ratio Decidendi

Legal Principle Established

The applicant was candid about not recalling dates. I found him an honest witness. I note he is suffering from memory lapses, but these appear to be lapses in the short term memory. His recollection of events in the more distant past, if not his memory for dates, appears to be quite good. I am therefore satisfied he was able to fix the date he began smoking by reference to the accident with the aircraft that he remembered occurring during the relevant period. He also referred to two qualifications that he received: he received a qualification in refrigeration on 20 February 1962, and a further qualification in compressors. The compressor exam was held on 4 or 5 March 1962. Those dates were contained in the relevant records. Mr Warden said the incident with the plane happened after his first certificate but either just before, or at about the same time as, the compressor exam. Consideration Sections 120(1) and (3) of the Act combine to require that the decision-maker apply the reasonable hypothesis test in deciding a veteran's claim. That means, in effect, that a claim in respect of injury, disease or death related to eligible service must be found to have been caused by that service unless the decision-maker is satisfied beyond reasonable doubt there is no basis for making that determination. Section 120(3) goes on to provide the decision-maker shall be taken to be satisfied beyond reasonable doubt if there is a reasonable hypothesis connecting the injury, disease or death with the service rendered by the person. When examining whether or not a reasonable hypothesis has been made out, s 120A requires the decision-maker to have regard to the relevant Statement of Principles (SoP) published by the Repatriation Medical Authority. In this case, the relevant SoP is Instrument No 38 of 1999. I have considered the standard of proof imposed by ss 120(1) and (3) of the Act. The applicant's account is plausible, and I accept it is accurate. I am satisfied he took up smoking shortly after he transferred to the flight deck because of stress associated with his familiar duties and the high pressure environment. I am satisfied he was on operational service at the time. It follows I am satisfied the applicant's ischaemic heart disease is causally connected with his eligible service.Conclusion I set aside the decision of the Veterans' Review Board and remit the matter to be dealt with by the respondent in accordance with these reasons. I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, MemberSigned: ..................................................................................... AssociateDate of Hearing 4 October 2002 Date of Decision 11 October 2002Solicitor for the Applicant Ms Haney, Streeting Haney Lawyers Solicitor for the Respondent Mr Smith, Departmental Advocate