Wilson and Repatriation Commission
[2003] AATA 686
•22 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 686
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/453
VETERANS' APPEALS DIVISION ) Re GLADYS WILSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date22 July 2003
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the death of Robert Neil Wilson was war caused and that his widow, Gladys Wilson, is entitled to a war widow’s pension with effect from 19 December 2000.
(Sgd) I R Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – whether death of veteran was caused by his war service – ischaemic heart disease – diabetes mellitus - whether reasonable hypothesis can be established connecting death with war service
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 83 FCR 82
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION
22 July 2003 Mr I R Way, Member 1. This is an application by Gladys Wilson (the applicant) for review of a decision of the Repatriation Commission dated 11 April 2001, and affirmed by the Veterans’ Review Board on 15 May 2002, which determined that the death of the applicant’s late husband, Robert Neil Wilson (the veteran), was not war-caused.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
Exhibit A1 Statement of Mrs G Wilson dated 25 June 2002
Exhibit A2 Report of Dr D Phillips dated 11 June 2002
Exhibit A3 Report of Dr Grosser
Exhibit R1 Allamanda Hospital Notes
Exhibit R2 Medical History Sheet dated 4 October 1963
3. The applicant gave oral evidence and was represented by Mr RJ Clutterbuck. Mr D McAninly appeared for the respondent.
4. Under section 13 of the Veterans’ Entitlements Act 1986 (“the Act”), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11) may make a claim to a pension under section 14 of the Act.
5. The applicant is a widow of a veteran who rendered operational service as defined in subsections 5B and 6A of the Act, namely continuous full-time service outside Australia during World War II.
6. Mr Wilson was born on 18 September 1910 (or 1909), and served in the RAAF during World War II from 20 November 1939 to 27 September 1945, including operational service in the Middle East and New Guinea.
7. The veteran died on 3 November 2000 at age 90 (or 91), the cause of death being recorded on the death certificate as:
“1 (a) Coronary arteriosclerosis (years)
(b) Diabetes mellitus
2 Alzheimer’s disease”
8. At the time of his death the veteran’s accepted service related disabilities were:
(a)Migraine with gastrointestinal symptoms
(b)Haemorrhoids
(c)GSW left leg
(d)Cervical intervertebral disc lesion (6-7) with spondylitis
(e)Right lateral epicondylitis
(f)Sacro iliac strain
9. His non service related disabilities were:
(a)Recurrent dislocation left temporo mandibular joint
(b)Death (the subject of this appeal)
10. The applicant contends that there is a reasonable hypothesis connecting her husband’s coronary arteriosclerosis and his diabetes mellitus with the circumstances of his war service because of a war caused smoking habit.
Legislative Framework
11. The question of whether the death of a veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression “war-caused” the relevant part of section 8 provides:
“(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
but not otherwise.”
12. Section 120 describes the relevant standard of proof:
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
13. Other relevant provisions of the Act in respect of a claim are as follows:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
14. Section 120A provides that the reasonableness of hypotheses is to be assessed by reference to the relevant Statement of Principles (SoP).
“(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
15. Subsection 120(1) provides that the Tribunal must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of such a veteran was not war-caused.
16. Subsection 120(3) provides that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the Tribunal, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
17. The Act provides that an hypothesis is not reasonable for the purpose of subsection 120(3) unless the SoP upholds the hypothesis.
18. The relation to service required by the SoP must be one of the relationships prescribed in section 196B(14) of the Act.
“(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i)to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
19. There is no dispute between the parties that the relevant SoPs in this matter are:
§Ischaemic Heart Disease – Instrument No 38 of 1999; and
§Diabetes mellitus – Instrument No 82 of 1999 as amended by Instruments No 9 and 99 of 2001.
Applicant’s Case
20. During the formal hearing of this matter it became apparent that the applicant was relying principally on there being a reasonable hypothesis connecting the veteran’s diabetes mellitus, and hence his death, with his war service.
21. The medical opinions before the Tribunal are that the veteran suffered from diabetes mellitus type 2, and that the clinical onset of this disease was in 1988. There was not dispute between the parties about these medical opinions and in view of this and on the material before it the Tribunal finds accordingly.
22. Mr Clutterbuck, for the applicant, submitted that the veteran satisfies Factor 5(c) of Instrument 82 of 1999, namely:
“in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or …”
23. Pack years of cigarettes or the equivalent thereof in other tobacco products is defined in the SoP as follows:
“pack years of cigarettes or the equivalent thereof, in other tobacco products means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes (being the “standard” cigarette pack contents) per day for a period of one calendar year, or 7 300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;…”
24. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases such as the present in which section 120A of the Act applies, namely:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
25. After careful consideration of all of the material before it, the Tribunal is satisfied that the material before it points to the hypothesis as contended by the applicant and that the relevant SoP is Instrument No 82 1999, Diabetes Mellitus.
26. The question then is whether the veteran meets Factor 5(c) as set out above and if so whether this factor can be connected with his service.
27. The evidence before the Tribunal in respect of the veteran’s smoking habit is limited to the recollections of his wife, Gladys Wilson (who first met him in 1960) and the veteran’s daughter from his first marriage, Jan Dianne Quinn, who provided a written statement based on hearsay evidence from her mother (the veterans’ first wife). Jan Quinn was not available to be questioned on her written statement. It was the applicant’s evidence that Ms Quinn had been recently subjected to two armed hold-ups and subsequent court appearance. As such the applicant said that Ms Quinn was terrified of having anything to do with court appearances and, further to providing her statement, did not wish to be involved in any way with the hearing of the applicant’s case. The Tribunal accepts this explanation.
28. In her written statement (T4/30), Ms Quinn stated:
“I Jan Quinn am the daughter of Robert Wilson.
I was told on several occasions by my mother Jean Wilson that before the war my father was a non smoker.
Before the war it was known my father disliked the smoking habit and as my mother’s sister smoked he didn’t approval (sic) and thought it was a dirty habit.
I was told by my mother that my father started smoking on service during World War II.
My mother informed me that my father commenced smoking during war service due to the stress of war which greatly affected him.
I was told by my mother that my father became a very heavy smoker during and after the war.
I can remember if people spoke of war my father would light up a cigarette.
In summary I confirm that my mother told me before the war my father was a non smoker distinctly disliked the habit and commenced smoking during the war.”
29. The Tribunal was faced with a number of difficulties in assessing the applicant’s evidence about her husband’s smoking. These difficulties arose from her lack of knowledge of her husband’s pre-war smoking; her limited knowledge of his war time smoking and smoking prior to meeting him in 1960; the inconsistencies in her recall of his attempts to reduce smoking and his eventual cessation of smoking.
30. In her written statement dated 23 February 2002, the applicant said (T4/28):
“I Gladys Wilson married Neil Robert Wilson on 8 October 1969.
My late husband was an extremely private man and was very reluctant to talk about his experiences during World War II..
My late husband did inform me that he smoked a lot as a result of stress during war times.
My husband told me he smoked because of his war service which gave him relief from the tension.
My husband informed me that during the war the doctor told him to try and cease his heavy smoking as he was having difficulty breathing in air crafts. He informed me he tried a pipe for a short time however this burnt his lips so he resumed his heavy smoking habit.
My husband smoked approximately 50 cigarettes a day and only ceased towards the end of 2000 when he went into a nursing home.
My husband did not tell doctors he was smoking as he thought they may not treat him and he knew they would disagree with him smoking.
The Smoking Questionnaire signed by me on 4 April 2001 is incorrect. My husband passed away on 3 November 2000 and when this Smoking questionnaire was completed it was filled in by an advocate as I was extremely upset and not in a position to answer the questions.
The Smoking Questionnaire dated 4 April 2001 is totally incorrect.”
31. In her written statement dated 25 June 2002 (Exhibit A1), the applicant stated:
“I have read the Medical Reports of Dr Phillips dated 11 June and Dr Grosser dated 17 June 2002. I note both Medical reports states (sic) my husband was an ex-smoker.
I refer to my previous Statement dated 23 February 2002 and confirm my late husband smoked approximately 50 cigarettes a day and only ceased towards the end of 2000 when he went into a Nursing Home.
My husband informed me that he never admitted to Doctor’s or Medical Personnel that he was still a smoker as he knew they did not approve and he may be reprimanded and they may not treat him.”
32. In her oral evidence the applicant confirmed that when she met her husband in 1960 he was smoking some 40-50 cigarettes per day and 1 or 2 cigars at night, and that she was constantly at him to reduce his smoking (she being a non-smoker), which he did. It was the applicant’s evidence that the veteran reduced his smoking gradually over the years until he finally stopped smoking in 1997.
33. The Tribunal, after consideration of all of the material before it, is satisfied that the veteran smoked at least ten pack years of cigarettes (within the meaning of the definition of that term in the SoP) before the onset of his diabetes. The Tribunal is further satisfied that the clinical onset of the veteran’s diabetes occurred within ten years of his ceasing to smoke.
34. In arriving at these conclusions the Tribunal has taken into account the various medical reports dating back to 1963 about the veteran being an ex-smoker or a non-smoker. However, the Tribunal accepts the applicant’s explanation that her husband withheld information from the doctors about his smoking habit and that he finally ceased smoking in 1997.
35. The Tribunal therefore is satisfied that Factor 5(c) of the relevant SoP is met, in that the veteran smoked at least ten pack years of cigarettes or equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus and that the clinical onset of diabetes mellitus preceded his cessation of smoking.
36. The crucial question then before the Tribunal is whether Factor 5(c) of the relevant SoP can be connected with the circumstances of the veteran’s relevant service.
37. The question of relating a factor to service has been addressed by His Honour Justice Emmett in Kattenberg v Repatriation Commission [2002] FCA 412, where at paragraph 42 and 43, His Honour said:
“An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that ‘factors must be related to any relevant service’. That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
Thus, smoking at least thirty pack years of cigarettes will be related to relevant service rendered by a veteran (see para [9] above), if the smoking of that quantity of cigarettes:
§ arose out of, or was attributable to, that service;
§ was contributed to in a material degree by, or was aggravated by, that service; or
§ would not have occurred by for the rendering of that service by the person.
Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran’s service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service.”
38. In paragraph 9 of his judgment, His Honour said:
“Section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase ‘related to service’. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, if:
‘(b) it arose out of, or was attributable to, that service; or…
(d)it was contributed to in a material degree by, or was aggravated by, that service; …
(f)in the case of a factor causing, or contributing to a disease – it would not have occurred …but for the rendering of that service by the person’.”
39. While the Tribunal, as already indicated, has some difficulty with the limited evidence before it about the veteran’s smoking habit, the Tribunal, after careful consideration of all of the material before it accepts the evidence of the applicant and Ms Quinn, such as it is, about the veteran’s pre-war and war time smoking, and, following the approach taken in Kattenburg, is satisfied that there is a causal or contributing relationship between the veteran’s smoking and his war service (see also Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, paragraph 21 and 22).
40. The Tribunal therefore is of the view that there is a reasonable hypothesis connecting the veteran’s death with his war service.
41. The Tribunal therefore is not satisfied beyond reasonable doubt, that there is no sufficient ground for determining that the death of the veteran was war caused. The Tribunal sets aside the decision under review and in substitution therefor determines that the death of Robert Neil Wilson was war caused and that his widow, Gladys Wilson, is entitled to a war widow’s pension with effect from 19 December 2000.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 2 July 2003 (at Southport)
Date of Decision 22 July 2003Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney
For the Respondent Mr D McAninly, Departmental Advocate
0
5
0