Williams and Repatriation Commission

[2006] AATA 142

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 142

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1309

VETERANS APPEALS’ DIVISION		)
Re		RUBY WILLIAMS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date21 February 2006

PlaceSydney

Decision The decision under review is affirmed. 

.................................................

Ms N Bell
  Senior Member

VETERANS’ APPEALS – Hearing on the Papers - Deceased Veteran – Claim Made by Veterans’ Wife – Death Must Be War Caused – Tribunal Not Satisfied Veterans’ Death Was War Caused – Wife Not Eligible for Pension

Administrative Appeals Tribunal Act 1975 section 34B

Veterans’ Entitlements Act 1986

Statement of Principles No.40 of 2003

Repatriation Commission v Tuite (1993) 39 FCR540

REASONS FOR DECISION

21 February 2006 Ms N Bell, Senior Member

1.      Mr William Williams, who died on 20 March 2003, served in the Australian Army from 17 September 1941 to 23 October 1943.  This was a period of eligible service under the Veterans’ Entitlements Act 1986 (the Act).

2. Mrs Ruby Williams, the veteran’s widow, claimed a pension following her husband’s death. Her claim was refused on the basis that his death was not war caused. The parties agreed that the application be “heard on the papers” and so, pursuant to section 34B of the Administrative Appeals Tribunal Act 1975, I determined the application in the absence of the parties, on the basis of the documents before me and without holding a hearing.

3.      Mr Williams had the following conditions accepted by the Repatriation Commission as war caused: bronchial asthma, crush fracture at T12, osteoporosis and bilateral sensorineural hearing loss.  His death was certified as due to subarachnoid haemorrhage and intracerebral haemorrhage, with ischaemic heart disease, atrial fibrillation, gout, type II diabetes mellitus, epilepsy and osteoporosis as contributory causes.  There appears to be no dispute that the type of death he suffered from was death due to subarachnoid haemorrhage and I also note the report of Professor J McLeod, Neurologist, of 8 September in this regard.  I agree.

4.      The standard of proof applicable to the question of war causation is that of reasonable satisfaction.  Statement of Principles (SoP) No. 40 of 2003 is relevant to the condition of subarachnoid haemorrhage.  The factor in that SoP relied on by Mrs Williams, through her advocate, Mr Casey, is factor 5(b).  That factor is as follows:

“5 (b)   for men, drinking at least 10 kilograms of alcohol within the year immediately before the clinical onset of subarachnoid haemorrhage”

5.      To conform to this factor, Mr Williams’ drinking must be related to his service and his drinking must have been at the level and for the period described in the factor.

6.      I turn first to the question of whether Mr Williams’ drinking was related to his service.  The only evidence of this is contained in the statements of Mrs Williams and Mr Ronald Wright, a longstanding friend of Mr Wlliams’.

7.      In her statutory declaration of 31 March 2005, Mrs Williams said her husband had attributed his drinking and smoking to serving during the war.  She said he had not been a regular drinker or smoker before service and “was induced to become a regular smoker and drinker by older servicemen to be ‘one of the boys and a mate’”.

8.      Mr Wright, in his statutory declaration of 19 June 2005, said “as young Christians, we would never have become smokers or drinkers, but for war service, as both habits enabled us to cope.”

9.      There is no other evidence before me of a relationship between Mr Williams’ drinking and his service.

10.     I am mindful that, for me to be reasonably satisfied Mr Williams’ drinking was related to service, any connection between the two must be more than temporal and service must not simply be the setting in which Mr Williams’ drinking commenced (see Repatriation Commission v Tuite (1993) 39 FCR540). While it is not unusual for the commencement of alcohol consumption to be found to be causally linked to eligible service, in this application there is no evidence of the conditions and events of Mr Williams’ service, of the precise circumstances in which he commenced to drink or of the nature of his early alcohol consumption. In the absence of such information and on the basis only of assertions by Mrs Williams and Mr Wright, I cannot be reasonably satisfied of a connection between his drinking and his service.

11.     It follows that it is unnecessary to examine the level of his alcohol consumption in the year prior to his death.

12.     I have also considered the other factors in SoP No. 40 of 2003 and can find no evidence to support the existence of any of those factors.  In addition, none of Mr Williams’ other, accepted conditions played a significant contributory role in his death.

13.     I must therefore conclude that Mr Williams’ death was not war caused.

decision

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ............[Linda Blue]..........................................
  Associate

Heard on the Papers                 22 December 2005
Date of Decision  21 February 2006         
Advocate for the Applicant        Mr John Casey   
Solicitor for the Respondent      Department of Veterans' Affairs