Woolnough and Repatriation Commission - [2001] AATA 609

DECISION AND REASONS FOR DECISION [2001] AATA 609

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1996/765

VETERANS' APPEALS DIVISION )

ReBeryl Catherine Rebecca WOOLNOUGH
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

TribunalMrs M T Lewis, Senior Member
Date29 June 2001
PlaceSydney
DecisionThe Tribunal sets aside the decision of a delegate of the Repatriation Commission dated 3 March 1995, and in substitution therefor determines that the death of Reginald Woolnough was war-caused, and that Beryl Woolnough is entitled to the payment of War Widow's Pension, on and from 7 February 1995.

..............................................
M T Lewis,
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - operational service by mariner - whether death of mariner from non-Hodgkin's lymphoma was war-caused – whether Statement of Principles applies – whether Applicant can rely on her accrued rights - whether a reasonable hypothesis raised – whether reasonable hypothesis disproved beyond reasonable doubt

Veterans' Entitlement Act 1986, ss. 5C(1), 6(1)(n), 120(1) and (3), 120(A)

Bushell v Repatriation Commission 175 CLR 408
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Thompson [2001] FCA 341
Woolnough and Repatriation Commission (AAT 12100, 8 August 1997)

REASONS FOR DECISION
Mrs M T Lewis, Senior Member

This is an application for review lodged by Beryl Catherine Rebecca Woolnough ("the Applicant") on 21 June 1996 for review of a decision of the Repatriation Commission ("the Respondent") dated 3 March 1995 which determined that the death of the Applicant's husband, Reginald Woolnough ("the Mariner") was not war caused within the meaning of the Veterans' Entitlements Act 1986 ("the Act"). The decision of the Respondent was affirmed by the Veterans' Review Board ("the VRB") on 24 May 1996.
It is not at issue that the late Mariner rendered operational service on the S.S. Anhui from 1 May 1943 to 19 July 1944, and therefore the matter falls for consideration pursuant to s. 120(1) and (3) of the Act. He also served on the S.S. Baltic (also referred to in the documents as S.S. Baltyk) from October 1944 to July or August 1945 when it was under service to the British Ministry of War (T5).
The late Mariner was married to the Applicant on 26 September 1942 (T19) such that the Applicant was a dependant of the late Mariner for more than 12 months and by implication resident in Australia prior to his entering into the agreement concerning the service on the S.S. Baltic. Accordingly, and as the Respondent submitted, the late Mariner's service aboard the S.S. Baltic constituted eligible war service because he was an Australian mariner being a seaman employed under agreement in seagoing service on a ship registered outside Australia for at least 12 months immediately before he entered into the agreement: s5C(1) of the Act. Section 6(1)(n) of the Act states that "a person is taken to have been rendering operational service while the person was employed outside Australia on a ship as an Australian mariner". Thus the Tribunal finds that the late Mariner's service aboard the

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 Woolnough and Repatriation Commission

Details

AGLC: Woolnough and Repatriation Commission [2001] AATA 609
Case: [2001] AATA 609
Decision Date: 29 June 2001

CaseChat Overview and Summary

The case of Woolnough and Repatriation Commission involved the applicant, Woolnough, seeking a war widow's pension based on the death of her husband, a mariner who died from non-Hodgkin's lymphoma. The dispute centred on whether the deceased mariner's death was war-caused, whether the applicable Statement of Principles applied, and whether Woolnough could rely on her accrued rights under the Veterans' Entitlement Act 1986. The matter was heard by the Administrative Appeals Tribunal (AAT).

The central legal issues were whether the Statement of Principles applied to the applicant's claim, and if a reasonable hypothesis was raised that the deceased mariner's exposure to ultraviolet radiation during his service caused or materially contributed to his non-Hodgkin's lymphoma. The Tribunal needed to determine whether the hypothesis was disproven beyond reasonable doubt and whether the applicant could rely on her accrued rights as of the date she lodged her claim.

The Tribunal found that the Statement of Principles did not apply as it was not in force at the time Woolnough lodged her claim. It examined whether a reasonable hypothesis was raised that the mariner's exposure to ultraviolet radiation during his service caused his non-Hodgkin's lymphoma. Dr Peter McCullagh provided a report suggesting that the mariner's service likely exposed him to significantly more ultraviolet radiation than would have occurred in the absence of such service, and that increased ultraviolet exposure could increase the risk of developing non-Hodgkin's lymphoma. The Tribunal concluded that while a reasonable hypothesis was raised, it was not disproven beyond reasonable doubt, and thus Woolnough was not entitled to the pension.

The Tribunal dismissed Woolnough's claim for a war widow's pension, finding that the hypothesis that the mariner's exposure to ultraviolet radiation during his service caused or materially contributed to his non-Hodgkin's lymphoma was not disproven beyond reasonable doubt.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In applying the decision of the majority of the Full Federal Court in Thompson (supra) the Tribunal notes that the Applicant lodged her claim for war widow's pension on 31 October 1994, and at that time Instrument No.79 of 1994 for Non-Hodgkin's Lymphoma was not in place. Indeed it was not gazetted until 21 December 1994. Therefore, as the Applicant seeks to rely on her accrued right to have this matter determined on the law as it stood at the time she lodged her claim on 31 October 1994, the Statement of Principles does not apply.evidence The Tribunal had before it the documents provided by the Respondent pursuant to s.37 of the Administrative Appeals Tribunal 1975. The Tribunal also had before it the following documents: The Mariner was a ship's engineer during World War II. After the War he worked for W.D. and H.O. Wills. Apparently in 1960 the Mariner provided the following summary about his service and service related medical treatment (T5):9.3.1960 Evidence on Form "U" given by member.The "Anhui" was a troop carrier and carried Australian and American troops. The "Baltic" was a merchantman. The "Anhui" carried troops from Australia to the New Guinea area. The "Anhui" was bombed at Finschaffen, Buna, Goodenough Island and Hollandia. The "Anhui" was never actually hit. ...My attacks of nervous dyspepsia commenced at Buna. The ship had a couple of near misses at Buna and the constant air attacks effected me considerably. A Dutch ship tied up at the wharf was hit. I reported sick a couple of times. There was no doctor on board. The Captain sent me ashore a couple of times for R.A.P. treatment. ...Whilst on the "Baltic" I still suffered from nervous dyspepsia and was treated constantly. There was no doctor aboard and I treated myself. ...I was treated in London... This doctor gave me a very brief examination and considered I was suffering from sub-acute appendicitis. I have gone to numerous doctors but the complaint was never correctly diagnosed.I left the sea August 1945. Since then I have been working at W.D. & H.O. Wills. Dr Peter McCullagh, MD, D.Phil, MRCP, a Senior Fellow at the John Curtin School of Medical Research, provided a report dated 4 April 1997 that was not based on any Statement of Principles. He noted that the Mariner had visited South America and Papua New Guinea in the course of his service, and that he spent some time ashore in Papua New Guinea after contracting malaria. Dr McCullagh assumed from the s.37 documents provided to him, that the Mariner spent most of his working life in Sydney and in activities that were predominantly indoor. In contrast, his period as a mariner was likely to have entailed more outdoor exposure, much of which was in tropical and sub-tropical regions. Dr McCullagh raised the hypothesis that the Mariner during his service, occasioned exposure to ultraviolet radiation to a considerably greater extent than would have occurred in the absence of such service. He noted that there is a substantial body of evidence from epidemiological and experimental sources to suggest that increased exposure to ultraviolet radiation increased the risk of developing non-Hodgkin's lymphoma. He opined that the association between ultraviolet exposure and non-Hodgkin's lymphoma was placed on a particularly strong basis by the research of Adami et al ["Evidence of an association between non-Hodgkin's lymphoma and skin cancer". (1995) British Medical Journal, 310, 1491]. He also noted that ultraviolet light has been demonstrated conclusively to be immunosuppressive. He opined that suppression of the immune system by ultraviolet exposure was not localised to the irradiated area of skin, but it affects the immune system throughout the body. He considered that the liability of individuals with a suppressed immune system to develop non-Hodgkin's lymphoma has been very well established, most notably in individuals subject to therapeutic immunosuppressive regimes. Dr McCullagh considered it likely that the Mariner received significantly more ultraviolet radiation than would otherwise have been the case because of his service. Much of his two years of service was in the tropics, during the Pacific campaign, which conferred an increased risk of developing non-Hodgkin's lymphoma.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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