Webber and Repatriation Commission - [2001] AATA 841

DECISION AND REASONS FOR DECISION [2001] AATA 841

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1190

VETERANS' APPEALS DIVISION       )
           Re      FREDERICK WEBBER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date9 October 2001
PlaceSydney

Decision      The Tribunal determines that the decision under review be set aside and in substitution therefor decides that the Applicant is entitled to a disability pension payable at the special rate, with the date of effect being 3 February 1995.
  [SGD] Dr J D Campbell
  Member
CATCHWORDS
Veterans' Affairs - special rate consideration - accepted disabilities alone - over 65 years of age at date of application - remunerative work which is affected by accepted disabilities was the last paid work before lodgement of claim - undertaking such work after age 65 - undertaking such work for at least 10 years before turning 65
Veterans' Entitlement Act 1986 - sections 24, 120
Re King and Repatriation Commission (1991) 22 ALD 638
Re MacRae and Repatriation Commission (1990) 21 ALD 612
Re Cavell and Repatriation Commission (1986) 10 ALN N233
Starcevich v Repatriation Commission (1987) 76 ALR 449
Banovich v Repatriation Commission (1986) 69 ALR 395
Grant v Repatriation Commission (1999) 57 ALD 1
Re Smith and Repatriation Commission (1987) 12 ALD 534

REASONS FOR DECISION

Dr J D Campbell, Member

In this matter, Mr F Webber ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 20 July 1998, which found that the Applicant's disability pension was to be continued at 100 per cent of the general rate with effect from 17 April 1995. This latter decision was affirmed by the Veterans' Review Board ("VRB") on 28 May 1999.
A hearing was held before the Tribunal on 31 July 2000 at which the Applicant was represented by Ms Kiel of Counsel. The Respondent was represented by Mr Wallis, a solicitor from the Department of Veterans' Affairs. The Applicant and his son, Mr Daniel Webber, presented oral evidence to the Tribunal. At the end of the hearing, income tax returns for the year ending 30 June 1999 were requested and these, together with Counsel's submissions on behalf of the Applicant, were received by the Tribunal on 22 November 2000. The Respondent's submissions were not lodged with the Tribunal until 18 April 2001, delay being occasioned by the departure of the Respondent's representative to private employment.
The following material was placed in evidence before the Tribunal:
Exhibit No    Description Date
T1-24 pp1-128 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Statement of Mr Daniel Webber 20 July 2000
A2      Applicant's Statement of Facts and Contentions          2 March 2000
A3      Statement of the Applicant           26 October 2000
A4      Supplementary Statement of Applicant 19 February 2000
A5      Medical Report Dr Baz       1 February 2000
A6      Income Tax Return for Partnership of FF Webber and AR Webber for financial year 1984/85
A7      Applicant's Income Tax Return for financial year 1998/99
R1      Medical Report by Dr Lennon      29 October 1999
R2      Medical Report by Dr Hession     24 November 1999
R3      Respondent's Statement of Facts and Contentions     26 July 2000

issues

The relevant issue in this matter is whether the Applicant ought to be assessed at the special rate of pension.
legislation
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 24(2A) and 120(4).
background
The Applicant was born on 10 July 1927. On 3 May 1995 the Applicant lodged a claim with the Respondent that his scoliosis and skin cancers be accepted as war- caused diseases/injuries (T3). The condition of lumbar spondylosis was found by the VRB to be a war-caused disability on 22 January 1998, and the VRB remitted the matter to the Respondent for assessment (T5). On 20 July 1998 the Respondent assessed the Applicants' accepted disabilities at 70 points, his life style rating at 5 points and continued his disability pension at 100 per cent of the general rate, with the date of effect being 17 April 1995 (T9). This decision was affirmed by the VRB in a decision dated 28 May 1999 (T23).
The Applicant has the following diseases/injuries accepted as being war- caused:

Otitis Externa;
Right Mastoiditis and Otitis Media;
Mixed Deafness;
Anxiety State;
Lumbar Spondylosis;
Solar Skin Damage;
Tonsillitis;
Bowen's Disease of the left side of the neck; and
Scar below Left Eye.

The Applicant has the following non-accepted disabilities:

Deviated Nasal Septum;
Benign Prostatic Hypertrophy;
Haemorrhoids with Haemorrhoidectomy; and
Cervical Spondylosis.

applicant's evidence

The Applicant informed the Tribunal that after leaving the Navy in 1949 he worked variously as a labourer, ferry boat operator, tug boat operator, welder and boilermaker, until 1972. The Applicant stated that in 1972 he built his own fishing trawler and commenced work as a professional fisherman. In his capacity as a skipper of the trawler he would go out over night and trawl three nets over extensive distances. He would work approximately 50 hours per week at that time. The work involved much bending, lifting and stooping.
The Applicant stated that in 1984 he purchased another trawler and employed one of his two sons to skipper this trawler and a deck hand to assist him, with the Applicant and his other son crewing the first trawler.
The Applicant indicated that he had experienced episodic low back pain for many years associated with his work activities as a professional fisherman. He stated that in January 1985 he was treated in Ballina Hospital for his back condition with traction, bed rest and later physiotherapy.
As a consequence of his back condition, the Applicant stated that, by 1985 he was forced to reduce his professional fishing duties at sea to some 20 to 30 hours per week, and later in 1985/86 was forced to undertake administrative and general maintenance duties on shore. Such duties included bookkeeping and accounts, general boat maintenance, minor repairs, painting, net making and mending, with the Applicant seldom going out on a boat.
The Applicant indicated that in 1976 he was successful in securing a contract with Shell and Caltex, tying up tankers at Trial Bay and maintaining a security/safety screen for the unloading. This involved some three to four days a month, for 24 hours each day, and for which $140 an hour was received.
As a result of his increasing back pain and his inability to go to sea, the Applicant employed his second son to skipper the first trawler and a deck hand to assist him, with his two sons doing most of the contract work with Shell and Caltex.
The Applicant indicated that between 1985 and 1992 he received income from the Shell and Caltex contracts and from professional fishing, with increasing outgoings to his sons and other hired crew.
In late 1993 the Applicant underwent a laminectomy, after which he stopped work in general activities, maintaining a five to six hour working week primarily undertaking bookkeeping duties.
The Applicant indicated that one trawler was sold in 1994 and the second in 1999. The contract with Shell terminated in 1992, when the depot was closed. The Applicant indicated that both sons continued to earn income from the trawlers until the last was sold in 1999.
In response to questions from the Respondent, the Applicant stated that he had problems with his neck since 1980, but that the neck pain, which was occasional, did not stop him from working.
In response to questions from the Tribunal, the Applicant stated that he had commenced a partnership with his wife in 1972 to conduct the business and activities in which he was to become involved. As a part of his fishing activities he received shares in a fishing cooperative. The Applicant also indicated that just prior to the hearing he commenced receiving a part social security pension.
mr daniel webber
Mr Webber, the Applicant's son, confirmed that between 1984 and 1994 he undertook duties involving prawn catching and servicing the contract with Shell. The witness stated that during this period the Applicant assisted on shore with supervision, maintenance, and the repair of nets.
Mr Webber stated that his father received no money after 1986, and the maintenance of the two trawlers was paid for by the sons. In relation to the contract from Shell, the money was paid to the Applicant. The witness also indicated one trawler was sold in 1994, and that the Shell contract was terminated in 1992.
taxation files
An examination of the partnership taxation returns for the following years reveals the following details:
(a) Financial year 1984/1985
(i) Fishing     Income          $90,727
           Expenses (including wages of $37,360) $49,880
           Repairs and maintenance $33,333
(ii) Contract with Shell        Income         $89,550
           Expenses (wages)   $34,548
           Repairs and maintenance $33,333
(iii) Rent       Income          $2,776
(iv) Insurance claim            $1,800
(v) Interest               $9,999
Net profit for financial year 1984/85 for the partnership           $43,758
(b) Financial year 1994/1995
(i) Fishing     Income          $20,868
           Income from the sale of fixed assets       $3,958
           Expenses (including repairs and maintenance of $11535 and wages of $15,746) $51,868
Net profit from fishing        $2,958
(ii) Interest                $18,780
Net profit for financial year 1994/95         $21,571
(c) Financial year 1995/96
(i) Business income $42,268
Business expenses (including repairs and maintenance $14,288 and subcontract for fishermen $28,589)       $65,158
Net loss from business      $22,890
(ii) Interest     $33,386
Net profit for partnership for year 1995/96          $10,496
(d) Financial year 1996/97
(i) Business income $69,917
Business expenses (including repairs and maintenance $18,912 and subcontracts $38,744)           $83,254
Net loss from business      $13,338
(ii) Interest     $37,497
Net profit for partnership for year 1996/97          $24,159
(e) Financial year 1997/98
(i) Business income $21,298
Business expenses (including subcontracts $20,112 and repairs and maintenance $4,614)           $41,975
(ii) Rent         $13,000
(iii) Insurance receipts        $3,223
(iv) Interest    $16,343
Net business income (loss)           ($4,112)
Net profit for partnership for 1997/98      $12,507
(f) Financial year 1998/99
(i) Business income (including fishing proceeds of $18,507; insurance receipts of $10,000; rents of $16,000)       $45,396
(ii) Expenses (including repair and maintenance $22,820; subcontract fishermen $4,494)           $41,062
(iii) Interest    $13,682
Net profit for partnership for financial year 1998/99      $18,305
The following details are drawn from the Applicant's personal income tax returns for the following years:
A        Financial year 1989/90                 Taxable Income $32 439  Non Primary Production    Primary Production     Interest         $22,676   Nil     $9763
B        Financial Year 1990/91                  Taxable Income   $55 686    Non Primary Production     Primary Production           Interest           $31863 $241        $31863
C        Financial Year 1991/92                 Taxable Income   $53 819          Non Primary Production     Primary Production          Interest $2054   $20372   $31419
D        Financial Year 1992/93              Taxable Income    $6587  Non Primary Production    Primary Production            Interest        $3425 $15,338 $5326
E        Financial Year 1993/94            Taxable Income $6725   Non Primary Production    Primary Production $2120   $8845
F         Financial Year 1994/95           Taxable Income $10 282          Non Primary Production   Primary Production $9307   $1479
G        Financial Year 1995/96          Taxable Income $5248    Non Primary Production   Primary Production $16693 $11445
H        Financial Year 1996/97             Taxable Income $12 080       Non Primary Production   Primary Production $18749   $6669

Financial Year 1997/98 Taxable Income $6254 Non Primary Production Primary Production $6254 Nil
J Financial Year 1998/99 Taxable Income $9018 Non Primary Production Primary Production $6851 $2167

medical evidence

In a medical report dated 1 February 2000, Dr Baz, Consultant Physician in Occupational Medicine, summarised her conclusions in relation to the Applicant's capacity to work in the following comment (Exhibit A5):
"In my opinion Mr Webber in unfit for his usual work as a fisherman because of the lumbar spondylosis. In my opinion this condition on its own has caused him to be unfit for this work since 1993.
In my opinion the lumbar spondylosis caused him to effectively stop work as a professional fisherman in 1984.
In my opinion there is contribution to his inability to work as a fisherman, from 1984, and certainly from 1993, due to cervical spondylosis. However while this condition would preclude active work as a professional fisherman, I do not consider it would preclude him from alternative, lighter, maintenance work for more than 20 hours weekly which may have been available to him.
In my opinion the lumbar spondylosis, with its surgery and sequelae, has precluded him form undertaking the alternative lighter work which otherwise would have available to him.
Thus while the accepted disabilities do not 'alone' prevent him from work as a professional fisherman, in my opinion the accepted disabilities 'alone' prevent him from alternative work which may have been available to him, and which he is not prevented from doing by other disabilities."
Dr Lennon, Consultant Orthopaedic Surgeon, in a medical report dated 29 October 1999, detailed the following opinion as a consequence of examining the Applicant (Exhibit R1):
"There is little doubt that the patient suffers from diffuse degenerative disease of the cervical and lumber spine, conditions of constitutional origin, age related, degenerative in nature and certainly not due to his activities on board ship, sleeping in a hammock, etcetera, and certainly not due to the simple fall from a ladder on the "boom ship", only had discomfort for 3 days.
His acceptance has been attributed to the presence of scoliosis on the discharge documents, there were no X-rays available for perusal).
He continued at his full active working duties until 1984 some 34 years after discharge in 1949 and had an operative procedure lumbar decompression in October 1993, approximately 9 years later, for apparently canal stenosis without any significant relief.
Apparently lumbar spondylosis was eventually accepted in 1998 having initially claimed in 1995.
He virtually ceased all active duty after the operative procedure, sold a trawler in 1994 and the second trawler in 1999, the trawling activity apparently carried out by his sons.
He continues to complain also significantly of neck pain radiating to his shoulders apparently since 1980 or prior having had an X-ray in 1980 and then was diagnosed as suffering form cervical spondylosis.
I am of the opinion that he should continue at his present 100% disability pension in relationship to accepted spondylogenic disease and should not be continued on a special rate pension as his continuing inability to work is not due to his accepted disability " alone" but related to his increasing age and also the significant presence of non accepted cervical spondylosis.
I would like to have available for comments appropriate reports form his present treating local medical officer, Dr. P.N. Kerkenezov, as well as possibly from the practice of his prior treating doctor, Dr. Smith."
In a report dated 24 November 1999, Dr Hession, Consultant Occupational Physician, detailed an assessment of the Applicant, which determined that the Applicant had 100 per cent degree of incapacity from all his accepted disabilities (Exhibit R2).
submissions
the applicant
Counsel for the Applicant submitted that the Applicant must prove on the balance of probabilities, pursuant to s 120(4) of the Act, that he was prevented from working because of his war caused disabilities alone, and that because of these disabilities he has suffered a loss of income. It is the Applicant's contention that the medical report of Dr Baz indicates that the Applicant's war-caused disability of lumbar spondylosis is of such a nature that it prevents the Applicant from undertaking remunerative work of more than eight hours per week.
In noting the partnership arrangement established in 1972, Counsel contended that the partnership tax returns indicate that considerable sums of money were expended on wages and maintenance, thereby depleting partnership returns to the individual partners. It was contended that this situation arose solely as a consequence of the Applicant being unable to perform the work himself, his wife making no significant contribution to the business.
Counsel also submitted that, while the Applicant's contract work with Shell and Caltex ceased when the Trial Bay Depot was closed in 1992, such endeavours were an ancillary form of remuneration for the Applicant. The Applicant's major occupational endeavour was that of a fisherman in the fishing industry and it was from this activity that the Applicant derived his major annual income.
Counsel submitted that the Applicant was employed in remunerative work as a professional fisherman and by reason of his war-caused lumbar spondylosis was prevented from continuing to undertake that work, and as a consequence suffered a loss on income that he would not have otherwise suffered.
the respondent
The Respondent submitted that the evidence of the Applicant was extremely difficult to interpret, and that the Applicant's work history, as given to the Tribunal, was vague, unreliable and confusing.
On the history as elicited, the Respondent contended that by 1986 the Applicant, having given the business to his sons, was in effect an employee of the sons, helping out with minor repairs and administrative duties on shore. As such, the Respondent contended that the Applicant does not satisfy section 24(2A)(g) of the Act, as he had not worked for ten years as either an employee, or on his own account, prior to his sixty fifth birthday.
The Respondent also contended that the Applicant ceased remunerated work in 1994 as a consequence of the closure of the Trial Bay Depot and not because of his accepted disabilities. Thus, the Respondent contended that the Applicant's loss of income was a result of this closure and as such he fails to satisfy section 24(2A)(d).
consideration and finding
In preliminary comment, the Tribunal observes that the Applicant was 73 years of age at the date of hearing, and that the Applicant had a range of accepted disabilities including lumbar spondylosis, mixed deafness from moderate to severe, and anxiety. Further, the Tribunal acknowledges that evidence presented by the Applicant at the hearing was at times difficult to follow, as it appeared inconsistent and vague. As a consequence, the Tribunal does conclude that the Applicant presented the evidence as best as he could in the circumstances. Nevertheless, the Tribunal does conclude that the Applicant's evidence, at times, was vague and somewhat inconsistent as to some dates, events and activities. To overcome any such difficulties, the Tribunal sought further taxation return material from the Applicant and this was provided (Exhibit A7), with written submissions to be made once all written material was at hand.

The Tribunal, in approaching this matter, undertook a detailed examination of the annual taxation returns for the partnership, comprising the Applicant and his wife for the financial year's 1984/85, and 1994/95 through to 1998/99. The Tribunal further notes that the partnership commenced in 1976. In financial year 1984/85 the activities of the partnership were nominated in the annual taxation return as fishing (significant income and expenses), contract with Shell (significant income and expenses) rent and interest, with net profit for the year being $43,758.
In financial year 1994/95 the activities of the partnership are described in the taxation return as fishing (significant income and expenses) with a net profit of $2,958 and interest on cash in bank accounts of $18,780, resulting in a partnership net profit of $21,571.
In financial year 1995/96 the activities of the partnership were detailed as business (income and expenses including repairs and maintenance and subcontract fishermen) with a net loss from business of $22,890 and interest from cash in bank accounts of $33,386, resulting in a net profit for the partnership of $10,496.
In financial year 1996/97 the activities for the partnership were detailed as business (Income and expenses including repairs and maintenance and subcontract fishing expenses) with a net business loss of $13,337 and interest from bank accounts of $37,497, resulting in a net profit for the partnership of $24,159.
In financial year 1997/98 the activities of the partnership return were described as business (income and expenses including repairs and maintenance and subcontract fishing expenses), rent and interest, resulting in a net profit for the partnership of $12,507 with a net business loss of $4,112.
In financial year 1998/99 the activities of the partnership return were detailed as business income (fishing products, insurance, recoveries and rents) and expenses (repairs and maintenance, subcontract fishermen), with a net profit for the partnership of $18,305.
In summarising the activities of the partnership, the Tribunal concludes that the case activity of the partnership was the conduct of a fishing business enterprise, that involved ownership of trawlers and equipment, necessary fishing licenses, ancillary equipment, including motor vehicles, and shares in particular fishing cooperatives. Further, the Tribunal concludes that the partnership commenced in 1972 and, on the evidence placed before it, remained unchanged in legal form from 1972 through to 30 June 1999. The Tribunal also concludes that the contract with Shell, which the Tribunal finds existed between 1976 and 1992, and terminated as a result of the closure of the Trial Bay Depot, was a contract carried on within the partnership arrangement, as evidenced by the partnership return for financial year 1984/85.
The Tribunal, in analysing the Applicant's income tax returns for the financial years 1989/90 to 1999/99, notes that the Applicant's personal income for financial years 1994/95 to 1998/99 is half that declared for the partnership income, except for non material variation in financial years 1994/95 and 1998/99.
In further analysis pertaining to the Applicant, and having considered all the evidence before it, the Tribunal makes the following findings of fact:
·     the Applicant was a self employed person for the period 1976 through to 1999;
·     throughout the period 1972 to 1984 the Applicant was involved as a self employed person and as a professional fisherman in the conduct of prawn trawling, having built his own trawler in 1972. Further, during this period the Applicant suffered from episodic low back pain, although he continued to work in excess of 50 hours per week;
·     in 1984 the Applicant purchased a second trawler and was required to hire a crew to man the trawler. Further, in late 1984 and early 1985 the Applicant was hospitalised with his low back pain and during his six-month period of incapacity a further crew member was hired;
·     from mid 1985 to 1993 the Applicant, as a self employed person, restricted his professional fishing duties at sea to some 20-30 hours per week during 1985 and from 1986 to 1993 worked similar hours doing general administration duties on shore. Such restriction of activity was to due to his low back pain;
·     for the period 1976 to 1992 the Applicant had a contract with Shell and Caltex and this ended with the closure of the Trial Bay Depot. The partnership received income for this activity and as indicated in the taxation return for 1984/85, expenses associated with wages for the crew were substantial;
·     in late 1993 the Applicant had an operation on his back and since then has only been able to work some five to six hours per week, doing administrative duties; and
·     the first trawler was sold in 1994 and the second in 1999.
In addressing the statutory framework nominated within s 24 of the Act, the Tribunal notes that the Applicant was over 65 years of age at the date of lodgement of his application, on 3 May 1995, for his scoliosis to be accepted as a war caused condition. The Tribunal concludes that the Applicant satisfies s 24(2A)(a) and (b) of the Act.
Further, as the Applicant is already receiving disability pension at 100 percent of the general rate the Tribunal concludes that s 24(1)(a) of the Act is satisfied.
In noting the report of Dr Baz, particularly her comments in relation to the non accepted disability of cervical spondylosis, and noting the report of Dr Lennon, which the Tribunal finds of little assistance in addressing work incapacity arising from cervical spondylosis, the Tribunal concludes that the accepted disability of lumbar spondylosis alone renders the veteran incapable of undertaking remunerative work for more than eight hours per week. The Tribunal finds that the Applicant satisfies s 24(1)(b) of the Act and as a consequence finds that s 24(2A)(c) is satisfied.
In addressing s 24(2A)(d), the Tribunal has already determined that the Applicant was self-employed and thereby working on his own account. The Tribunal notes the definition of remunerative work in s 5Q(1) of the Act to include "any remunerative activity" and also notes the comments made by the Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395 at 402:
"The term "remunerative work" is used… in a context which indicates an intention to refer to work generally… Consistently with that use, the phrase "remunerative work which the Respondent was undertaking" should be read as a reference to the type of work which the member previously undertook and not to any particular job."

Therefore, the Tribunal finds that the type of remunerative work that the Applicant engaged in was that of a professional fisherman.

Further, having noted the decision of the Full Federal Court in Grant v Repatriation Commission (1999) 57 ALD 1, the Tribunal does find that the last remunerative work that the Applicant undertook before the application of 3 May 1995 was that of a professional fisherman. Further, the Tribunal notes the decision in Re Smith and Repatriation Commission (1987) 12 ALD 534 where remunerative work was considered not to necessarily be with an individual employee but with the type of work the veteran was undertaking. In noting this decision and having considered all the evidence before it, particularly the medical evidence, the Tribunal finds that the Applicant was prevented from undertaking remunerative work as a professional fisherman following his back operation in 1993, and this incapacity for work has remained from that time and during the whole assessment period. Further, the Tribunal concludes that such incapacity has arisen solely from the accepted disability of lumbar spondylosis and consequently, that the Applicant satisfies s 24(2A)(d) of the Act.
In addressing s 24(2A)(e) of the Act, the Tribunal notes the following:
·     in Re Cavell and Repatriation Commission (1986) 10 ALN N233 the word "loss" was given its plain grammatical meaning. Thus, "loss"
·     means a diminution of what a veteran might reasonably be expected to earn had the veteran not been incapacitated;
·     in Starcevich v Repatriation Commission (1987) 76 ALR 449 Fox J at 454 stated:
"It seems to me that the intention of s 24(1)(c) is that the Applicant must have suffered substantial loss of remuneration consequent alone upon the incapacity referred to in s 24(1)(a) and (b). The loss must be real, in the sense that the Applicant cannot rely upon any remunerative work that he has undertaken in the past, but it would be unnecessarily restrictive to assess the loss by reference only to the last remunerative work undertaken before the Applicant's inability to work became complete. In my opinion, a veteran's entitlement to a pension under s 24 may be based on his being prevented from his continuing to undertake substantial remunerative work that he has undertaken in the past, even if that work was followed by work of a different type taken before the veteran ceased work altogether."
·     in Re MacRae and Repatriation Commission (1990) 21 ALD 612 a loss was found to exist where income received from investments was less than the veteran's income when farming, his farm having been sold; and
·     in Re King and Repatriation Commission (1991) 22 ALD 638, it was found that where the veteran worked for both himself and for the family company, while there was no diminution in the amount received from the family company, he had suffered a loss of earning by being prevented by his war caused disabilities from working on his own account.
In returning to a consideration of the Applicant's position, having undertaken an extensive longitudinal analysis of both the partnership and personal taxation returns of the Applicant, the Tribunal is satisfied that the activities of the Applicant as a professional fisherman had to be progressively replaced over time (ie from 1985 onwards) by other labour. The hiring of this labour was an expense to the partnership, resulting not only in the loss of the Applicant's income to the partnership accounts for his activities as trawler skipper and later for his on shore activities of some 20-30 hours per week, but also in the cost of hiring replacement labour. Such increased expense experienced by the partnership was reflected in lower levels of business profit or, in some years, business loss, and this in turn was reflected in diminution of income to the Applicant – a situation which would not have occurred if the Applicant had been able to continue with his professional fishing activities.
The Tribunal also notes that the Respondent placed great issue on the contract termination with Shell in 1992 as being the creator of the partnership and Applicant's loss of earnings. There is no doubt that the termination of the contract because of closure of the depot resulted in a loss of income to the business. However, in the Tribunal's view, this was nothing more than an incident of business and it should be seen in such light, for with any long term business activities, arrangements and contracts will be entered into and ceased in accordance with the commercial decisions of the participants. The Tribunal would also comment that such diminution in earnings would in the normal course of events be attempted to be recouped by other business activities. However, again in this matter, the decisive and restricting influence is the work incapacity arising from the Applicant's accepted disability of lumbar spondylosis, which prevented him from activities which would have helped make good such diminution of income.
In summary on this issue, the Tribunal finds that the Applicant did suffer a loss of earnings on his own account and this loss arose directly from the Applicant being prevented from undertaking his last paid work as a professional fisherman. In essence, the Tribunal finds that s 24(2A)(e) of the Act is satisfied by the Applicant.
In considering s 24(2A)(g), having undertaken an analysis of the partnership agreement, the partnership taxation returns and the Applicant's taxation returns, the Tribunal again concludes from all the material before it, that the Applicant was not at any stage from 1972 an employee. Further, from 1972 it is clear that the Applicant has been working as a self-employed person, on his own account. The fact that the Applicant was the owner of trawlers, equipment and fishing licenses, albeit through the medium of a partnership arrangement with his wife, and that the partnership had business contracts with the likes of Shell and Caltex, should not, in the Tribunals findings, be permitted to obfuscate the fact that the Applicant was a self-employed person at all times from 1972 until his cessation of work in 1994. That the partnership business activity continued after 1994 is a reflection of owners realising their business assets in a timely and appropriate manner – an activity which is particularly distinct from the Applicant's incapacity to work because of his war- caused disability on one hand, but nevertheless may be a direct consequence of such an incapacity to work.
The Tribunal also notes that the Respondent argued that the Applicant may have well become an employee of the two sons post 1985. The Tribunal, while understanding the contention, finds that this was not the case, for it is clear from the partnership taxation returns and the Applicant's personal taxation returns that income was derived from a number of sources, none of which being defined as either son.
It is the Tribunal's finding, as a result of the consideration in the previous two paragraphs, that:
· the applicant was undertaking his last paid work after he turned 65; and
· he had been working on his own account as a professional fisherman for a continuous period of ten years that began before he turned 65.
In conclusion, the Tribunal finds that the Applicant satisfies s 24(2A)(g) of the Act and that as a consequence of satisfying all the necessary conditions contained within s 24(2A) of the Act, the Applicant is entitled to a disability pension payable at the special rate, with the date of effect being 3 February 1995.
determination
The Tribunal determines that the decision under review be set aside and in substitution therefore determines that the Applicant is entitled to a disability pension payable at the special rate, with the date of effect being 3 February 1995.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  31 July 2001
Date of Decision  9 October 2001
Counsel for the Applicant        Ms Kiel
Counsel for the Respondent    Mr Wallace