Whinnen and Repatriation Commission - [2001] AATA 1039

DECISION AND REASONS FOR DECISION [2001] AATA 1039

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1432
VETERANS'     APPEALS      DIVISION
  Re:         DOROTHY WHINNEN
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:              24 December 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - cirrhosis of the liver - excessive consumption of alcohol - whether war-caused
Veterans' Entitlements Act 1986 s8, 119(1)(h), 120(1), 120(3), 120(4)
Critch v Repatriation Commission (1996) 43 ALD 574
East v Repatriation Commission (1987) 16 FCR 517
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission vLaw (1980) 31 ALR 140
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Tuite (1993) 29 ALD 609

REASONS FOR DECISION

24 December 2001 G.D. Friedman, Member

This is an application by Dorothy Whinnen (the applicant), widow of Charles William Whinnen (the veteran), 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 4 November 1999, to refuse a claim for disability pension for incapacity from cirrhosis of the liver secondary to alcohol consumption because the death was not war-caused.
At the hearing of this matter on 5 December 2001 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-T14), together with two exhibits lodged by the applicant (Exhibits A1 and A2) and five lodged by the respondent (Exhibits R1-R5).
BACKGROUND
The veteran was born on 13 October 1928. At the age of 17 years he joined the Royal Australian Navy (the navy) and served from 5 March 1946 to 13 October 1958 and from 24 October 1958 to 23 April 1961 as a steward. In accordance with s8 of the Veterans' Entitlements Act 1986 (the Act), the period from 5 March 1946 to 6 May 1948 was eligible service. The periods from 7 May 1948 to 30 September 1949, and from 5 April 1957 to 2 May 1957 (service on board HMAS Warramunga in the Far East Strategic Reserve) were operational service.
After initial training at HMAS Cerberus, the veteran was posted to HMAS Leeuwin (a ship in reserve) in Western Australia on 27 September 1946. On 13 May 1947 he was posted to HMAS Karangi, also in reserve. On 7 May 1948 he was posted to HMAS Tarangau, a naval base in Papua New Guinea. This posting ended on 3 January 1949, when the veteran returned to HMAS Cerberus. He went to sea from 1951 to 1954, and from 1956 to 1957. After his discharge from the navy the veteran worked in a service station. He then leased his own service station for seven years, after which he operated his own catering business, before working for a catering company. He then drove a courier van, before…

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 Whinnen and Repatriation Commission

Details

AGLC: Whinnen and Repatriation Commission [2001] AATA 1039
Case: [2001] AATA 1039
Decision Date: 24 December 2001

CaseChat Overview and Summary

In the case of Whinnen and Repatriation Commission, the Tribunal was tasked with determining whether the veteran's cirrhosis of the liver was a war-caused disease under the Veterans' Entitlements Act 1986. The veteran, who served in the Royal Australian Navy from 1946 to 1961, had a history of heavy alcohol use and died from complications related to cirrhosis of the liver. The applicant, the veteran's widow, sought to have the disease recognised as a war-caused condition, arguing that his service in the navy contributed to his alcohol consumption and subsequent illness.

The primary legal issue before the Tribunal was whether the veteran's cirrhosis of the liver was connected to his war service, specifically whether it was caused by factors related to his military service. This involved determining if there was a reasonable hypothesis linking the disease to the veteran's service, as outlined in the four-step process established in Repatriation Commission v Deledio. The Tribunal had to consider whether the evidence supported a hypothesis that the veteran's alcohol consumption, which led to his cirrhosis, was influenced by his service conditions, such as peer pressure, boredom, and the availability of alcohol.

The Tribunal assessed the evidence presented, including the applicant's testimony about the veteran's drinking habits and the availability of alcohol in the navy, as well as reports from a psychiatrist and a researcher detailing the veteran's service history and alcohol consumption patterns. The Tribunal concluded that while the evidence suggested that the veteran's drinking increased during his service, there was insufficient evidence to establish a reasonable hypothesis that his cirrhosis of the liver was caused by his military service. The Tribunal found that it could not be satisfied beyond reasonable doubt that the disease was war-caused, and thus denied the claim.

The Tribunal's decision hinged on the lack of direct evidence linking the veteran's cirrhosis of the liver to specific circumstances of his service, despite the presence of contributing factors such as alcohol availability and peer pressure. As a result, the Tribunal upheld the original decision of the VRB, denying the applicant's claim for recognition of the veteran's cirrhosis of the liver as a war-caused disease.

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-T14), together with two exhibits lodged by the applicant (Exhibits A1 and A2) and five lodged by the respondent (Exhibits R1-R5). BACKGROUND The veteran was born on 13 October 1928. At the age of 17 years he joined the Royal Australian Navy (the navy) and served from 5 March 1946 to 13 October 1958 and from 24 October 1958 to 23 April 1961 as a steward. In accordance with s8 of the Veterans' Entitlements Act 1986 (the Act), the period from 5 March 1946 to 6 May 1948 was eligible service. The periods from 7 May 1948 to 30 September 1949, and from 5 April 1957 to 2 May 1957 (service on board HMAS Warramunga in the Far East Strategic Reserve) were operational service. After initial training at HMAS Cerberus, the veteran was posted to HMAS Leeuwin (a ship in reserve) in Western Australia on 27 September 1946. On 13 May 1947 he was posted to HMAS Karangi, also in reserve. On 7 May 1948 he was posted to HMAS Tarangau, a naval base in Papua New Guinea. This posting ended on 3 January 1949, when the veteran returned to HMAS Cerberus. He went to sea from 1951 to 1954, and from 1956 to 1957. After his discharge from the navy the veteran worked in a service station. He then leased his own service station for seven years, after which he operated his own catering business, before working for a catering company. He then drove a courier van, before retiring in 1988. The veteran had a long history of heavy alcohol use and many admissions to hospital, mainly as a result of complications from cirrhosis of the liver and liver failure. He died on 21 May 1999. On 23 November 2000 the applicant sought review of the VRB decision by the Tribunal. EVIDENCE The applicant told the Tribunal that she first met the veteran in 1950, at a hotel. He was already in the navy and drank alcohol on a regular basis. The applicant stated that she and the veteran were married in 1951, when the veteran was stationed at HMAS Cerberus. Following their marriage she became concerned at his level of drinking, and the couple argued frequently about this subject, although she said that he did not try to modify his drinking. She said that on a number of occasions he would drink and fall asleep whilst driving his motorcycle or car, and on one occasion their first child, who was aged three months at the time, was thrown out of the car when the veteran's vehicle ran off the road. The applicant told the Tribunal that the veteran usually drank at home by himself, or at the local hotel. The applicant said that the veteran drank beer and wine, and she estimated that his consumption rose to the equivalent of four bottles of beer or one cask of wine, each day. She stated that she and the veteran did not discuss whether he believed that his navy service contributed to his alcohol problems, although she said that the veteran's brother told her that the veteran was a non-drinker when he enlisted in the navy. The applicant stated that a former member of the navy, who served with the veteran, confirmed to her that in the 1950s the veteran drank whilst on duty, but was never charged with any alcohol-related offence.

Evidence

Evidence Before The Court

On 23 November 2000 the applicant sought review of the VRB decision by the Tribunal. EVIDENCE The applicant told the Tribunal that she first met the veteran in 1950, at a hotel. He was already in the navy and drank alcohol on a regular basis. The applicant stated that she and the veteran were married in 1951, when the veteran was stationed at HMAS Cerberus. Following their marriage she became concerned at his level of drinking, and the couple argued frequently about this subject, although she said that he did not try to modify his drinking. She said that on a number of occasions he would drink and fall asleep whilst driving his motorcycle or car, and on one occasion their first child, who was aged three months at the time, was thrown out of the car when the veteran's vehicle ran off the road. The applicant told the Tribunal that the veteran usually drank at home by himself, or at the local hotel. The applicant said that the veteran drank beer and wine, and she estimated that his consumption rose to the equivalent of four bottles of beer or one cask of wine, each day. She stated that she and the veteran did not discuss whether he believed that his navy service contributed to his alcohol problems, although she said that the veteran's brother told her that the veteran was a non-drinker when he enlisted in the navy. The applicant stated that a former member of the navy, who served with the veteran, confirmed to her that in the 1950s the veteran drank whilst on duty, but was never charged with any alcohol-related offence. In a written report dated 29 May 2001 (Exhibit A1) Dr E. Cole, psychiatrist, stated he interviewed the applicant in connection with the death of the veteran. He said that the veteran's death from cirrhosis of the liver was due to his drinking, which had increased whilst the veteran was at sea and continued after his discharge from the navy. Dr Cole noted that:One can only speculate as to why he started drinking after he joined the Navy, but the usual reasons given by ex-servicemen are peer pressure, the ready availability of alcohol, long periods of boredom and perhaps periods of stress. Little seems to be known about his experiences during the period, that he served overseas, but, according to his widow, there is no evidence to suggest that he suffered from any nervous symptoms upon his return apart from the fact that his alcohol consumption had increased. In written reports dated 27 August 2001, 12 September 2001 and 30 November 2001 (Exhibits R1-R3), Mr P. Mulcare, on behalf of Write Way Research Service, described the movements of ships on which the applicant was posted. In oral evidence Mr Mulcare said that there was no issue of beer on naval ships until the mid-1950s. He stated that alcohol was freely available to naval personnel when they were not on duty. CONSIDERATION OF THE ISSUES The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury to war service is laid down 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 disease with the circumstances of the particular service rendered by the applicant.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In written reports dated 27 August 2001, 12 September 2001 and 30 November 2001 (Exhibits R1-R3), Mr P. Mulcare, on behalf of Write Way Research Service, described the movements of ships on which the applicant was posted. In oral evidence Mr Mulcare said that there was no issue of beer on naval ships until the mid-1950s. He stated that alcohol was freely available to naval personnel when they were not on duty. CONSIDERATION OF THE ISSUES The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury to war service is laid down 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 disease with the circumstances of the particular service rendered by the applicant. Mr Hyde, on behalf of the applicant, noted that there was no dispute between the parties that the veteran had rendered operational service, so that s120(1) and s120(3) of the Act apply, and the Tribunal must determine that the disease was a war-caused disease unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. Mr Hyde submitted that the applicable SoPs were Nº 35 of 1998 and Nº 36 of 1998 concerning cirrhosis of the liver. Risk factor 5(a) states:for men, consuming at least 150kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver. 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. It will do so if the hypothesis fits within, that is to say, 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. Mr Hyde submitted that the hypothesis fits within the template and is reasonable. He relied on an undated letter to the Returned Services League, by the veteran's brother, who stated that he was positive that the veteran …never drank alcohol when he joined the Navy at 17 years. By discharge he became [an] alcoholic. Mr Hyde also relied on the applicant's evidence that when she met the veteran in 1950 he was a regular drinker, and the evidence of Mr Mulcare that alcohol was freely available to naval personnel. The fourth step requires the Tribunal to consider, under s120(1) of the Act, whether it is satisfied beyond reasonable doubt that the disease was not war-caused, and at this stage the Tribunal is required to make findings on questions of fact. Mr Hyde said that when the applicant joined the navy he was a 17 year-old who was a non-drinker, or at most, a very light drinker. He stated that because of peer pressure, boredom, inactivity and the availability of alcohol an inference should be drawn that the applicant had developed a drinking habit after joining the navy, and that he began to consume alcohol because of those factors.