Wilson and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 659

Wilson and Repatriation Commission (Veterans’ entitlements) [2016] AATA 659 (31 August 2016)

Division

VETERANS APPEALS DIVISION

File Number(s)

2014/3262

Re

Elizabeth WILSON

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr P W Taylor SC, Senior Member

Date 31 August 2016

Place
Sydney

The decision under review is affirmed.

……………[sgd]……………………………
Mr P W Taylor SC, Senior Member
CATCHWORDS
VETERANS AFFAIRS – war widow's pension – operational service – whether death war- caused – aortic aneurysm – hypertension – whether reasonable hypothesis connecting death to service – statement of principles concerning aortic aneurysm – statement of principles concerning hypertension – material found not to point to a reasonable hypothesis – alternative argument – whether alcohol consumption related to operational service – found that veterans death not war caused – decision affirmed
LEGISLATION
Veterans Entitlement Act 1986 ss 5B, 6A, 13(1), 120, 180A, 196B
CASES
Bull v Repatriation Commission [2001] FCA 1832

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35; 96 ALD 536
Deledio v Repatriation Commission (1997) 47 ALD 261
Ellis v Repatriation Commission [2014] FCA 847; (2014) 142 ALD 352
East v Repatriation Commission (1987) FCA 242; (1987) 16 FCR 517
Fenner v Repatriation Commission [2005] FCA 27; 218 ALR 122
Forrester v Repatriation Commission [2013] FCA 898
Hunter v Repatriation Commission [2010] FCA 145
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321; 65 ALD 609
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192
Repatriation Commission v Keeley (2000) 98 FCR 108
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 131 FCR 473

SECONDARY MATERIALS
Statement of Principles concerning aortic aneurysm No. 9 of 2012

Statement of Principles concerning hypertension No. 63 of 2013
Statement of Principles concerning hypertension No. 11 of 2008

Statement of Principles concerning hypertension No. 35 of 2003

REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
31 August 2016

Mr James Wilson enlisted in the RAAF in April 1941, about 6 months after he turned 18. He saw service in New Guinea from May 1942 until late November 1943. After his return to Australia he was posted to Amberley Air Force base, in late October 1945. He remained there until his discharge in March 1946. That particular posting occurred after the September 1945 Japanese surrender, but it was before both the end of the “period of hostilities” (29 October 1945), and the end of World War II (28 April 1952), recognised in s 5B(1) & (3) of the Veteran’s Entitlements” Act 1986, (“VE Act”). Consequently, the whole of Mr Wilson’s 5 year service period was “operational service” for the purposes of the VE Act - see s 6A(1) & table items 1(a) & (c).
Mr Wilson died, at the age of 90, on Christmas Eve 2012.…

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.

Keep reading for free

Create a free CaseChat account to read Wilson and Repatriation Commission (Veterans’ entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] AATA 659
Decision Date: 31 August 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Wilson against a decision of the Repatriation Commission regarding a war widow's pension. The central dispute was whether the death of her husband, Mr James Wilson, from an aortic aneurysm was war-caused, specifically in relation to his service. The appeal was heard by Mr P W Taylor SC, Senior Member.

The legal issues before the Tribunal were whether there was a reasonable hypothesis connecting Mr Wilson's death to his operational service, and alternatively, whether his alcohol consumption, which was argued to be related to his hypertension and subsequent death, was itself linked to his operational service. The Tribunal was required to consider the relevant Statements of Principles (SoPs) concerning aortic aneurysms and hypertension, and to assess the evidence presented regarding Mr Wilson's alcohol consumption.

The Tribunal's reasoning focused on the evidence of Mr Wilson's alcohol consumption. While there was evidence suggesting he drank heavily during his enlistment period, the Tribunal found that the material did not provide sufficient specificity or quantification to establish a reasonable hypothesis connecting his alcohol consumption to his hypertension, or his hypertension and subsequent death to his service. The Tribunal noted that the relevant SoP for hypertension required a specific level of weekly alcohol consumption for a particular period preceding diagnosis, which was not adequately demonstrated. Furthermore, the Tribunal found that the evidence did not support the assertion that his alcohol consumption, hypertension, and death were related to his service.

Consequently, the Tribunal affirmed the decision under review. The claim failed on the grounds that the hypertension hypothesis was not reasonably pointed to by the material, and the alcohol consumption factor relied upon was not shown to be related to the period of Mr Wilson's relevant service.

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

These records provide some basis for concluding that Mr Wilson did drink “heavily” during his enlistment period (see paragraph 23 above). Whilst there are no details of the actual quantities to which Mr Wilson’s use of that adverb related, it is reasonable to infer that in 1993 he was contrasting his then rate of consumption with a significantly greater rate during the period of his enlistment. Consequently, his alcohol consumption in that period seems likely to have been at the 300 gram weekly average described in Hypertension SoP 63/2013 factor 6(b). On the other hand, there is no material pointing to the level of Mr Wilson’s alcohol consumption in the periods (i) after his service discharge, (ii) six months before his 1980 and 1983 hypertension diagnosis, or (iii) between that diagnosis and 1993. In both 1993 and 2004 Mr Wilson’s standard weekly consumption might have been as little as 210 grams (relying on the November 1993 cardiologist’s report) or as much as 280 grams (relying on the upper estimate in the 1993 questionnaire responses and the gastroenterologist’s March 2004 report). No doubt those consumption rates covered some of the period prior to 1993, perhaps even prior to the hypertension diagnosis. But those consumption rates are below the 300 gram weekly average described in the relevant SoP factor.TESTIMONIAL EVIDENCE OF MR WILSON’S ALCOHOL CONSUMPTION In September 2014 Mrs Wilson’s solicitors provided her unsigned and undated statement. It sets out her recollection that although her husband did like to drink, he would tend to have only one or two beers. She said he was never a heavy drinker. The former statement appears to be inaccurate (in the light of the 1993 and 2004 documents summarised in paragraphs 20 to 24 above). That inaccuracy precludes confidence in the reliability of the second statement. But that statement is, in the absence of any quantifying detail, not significantly informative for the purpose of these review proceedings. Mr Wilson’s 60 year old son Stephen gave a written statement, and oral evidence. In his statement Stephen Wilson reported his grandmother having told him that his father had come back from the war changed and that he had started smoking while he was away. Stephen said he had not noticed his father drinking when he was a young boy, but only when he was a teenager (ie sometime likely to have been after about 1969). He nevertheless described his father as a very heavy drinker. He said his drinking was a big problem and that his father was an alcoholic. He recalled his father drinking beer each afternoon, and then drinking 1 to 1.5 bottles of wine at, or after, dinner. He speculated that drinking was his father’s way of coping. In his oral evidence Mr Stephen Wilson elaborated on those matters. At one stage he described his father as often so drunk that he was bouncing off walls. DOES THE MATERIAL RAISE THE HYPOTHESISED CONNECTION Mrs Wilson’s statement of facts and contentions, relying upon Mr Stephen Wilson’s written statement, asserted that Mr James Wilson had “started drinking on service and was drinking when he returned from service, and was still drinking at the time of the onset of hypertension…”. The purpose of the assertion was to link the hypertension to alcohol consumption, and in turn to Mr Wilson’s service, so as to match the relevant factor in Hypertension SoP: 63/2013. The difficulty with the assertion is that the material must reasonably “point to” the relevant hypothesis and contain the required degree of specificity: see paragraphs 7 to 9 above. And the relevant factor in Hypertension SoP 63/2013 requires a particular quantification of the level of Mr James Wilson’s average weekly alcohol consumption (300 grams) for a particular period (6 months) preceding his hypertension diagnosis.

Decision

Reasons for decision

Both Professor O’Rourke and Professor Haber were aware of Mr Stephen Wilson’s written evidence about the extent of his father’s alcohol consumption. Professor O’Rourke was sceptical of the accuracy of that evidence – bearing in mind the absence from the medical records of any of the myriad health problems that he would have expected to have arisen during the course of such a prolonged period of alcohol abuse as Mr Stephen Wilson initially described. Professor Haber, I think, also shared some surprise along the same lines (see paragraph 33 above). But he was rather more inclined to accept at face value the general thrust of Mr Stephen Wilson’s evidence and he proceeded, as I perceived his evidence, on an understanding that Mr James Wilson had a long standing problem with alcohol, and one that had been apparent from the years immediately after he ended his military service. The difficulty is that such an understanding is really not justified by any evidence, and certainly not by that of Mr Stephen Wilson – for the reasons I gave in paragraph 39 above. In the absence of a proper justification for that understanding, there is, in my view, no basis for Professor Haber’s opinion, and no basis for concluding that Mr James Wilson’s alcohol consumption prior to his hypertension diagnosis, his hypertension, and his subsequent death from aortic aneurysm, were related to the relevant service rendered by Mr James Wilson prior to his discharge in 1946.DECISION Mrs Wilson’s claim fails for the alternative reasons that (i) the hypertension hypothesis argued on her behalf does not “point to” an hypothesis that is either reasonable or covered by a factor in a relevant Statement of Principles, and (ii) the pre-diagnosis alcohol consumption factor on which her hypothesis relies was not shown to be related to the period of Mr James Wilson’s relevant service. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	VETERANS APPEALS DIVISION
File Number(s)	2014/3262
Re	Elizabeth WILSON
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr P W Taylor SC, Senior Member
Date	31 August 2016
Place	Sydney