Yvonne Palmer and Repatriation Commission - [2013] AATA 670

[2013] AATA 670

Division VETERANS' APPEALS DIVISION

File Number

2011/4928

Re

Yvonne Palmer

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 20 September 2013

Place Brisbane
The Tribunal affirms the decision under review.
....................[Sgd]....................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Operational service with Australian Army – Death from carcinoma of the stomach – Statement of Principles concerning malignant neoplasm of the stomach – No material pointing to the presence of Helicobacter pylori – Clinical onset – Reasonable hypothesis of relationship to eligible war service not raised – Death not war-caused – Decision affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 14, 120, 120A
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622

Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Re Bennett and Repatriation Commission [2003] AATA 1319
Re Cunningham and Repatriation Commission [2007] AATA 1790

Repatriation Commission v Deledio (1998) 83 FCR 82

SECONDARY MATERIALS
Statement of Principles concerning malignant neoplasm of the stomach No. 3 of 2007[1]
[1] As amended by Instrument No. 65 of 2011 in a manner unrelated to this matter.

Brendan O’Keefe and F B Smith, Medicine at War, Allan and Unwin in association with the Australian War Memorial, 1994.

REASONS FOR DECISION
Mr R G Kenny, Senior Member
20 September 2013
BACKGROUND

Robert Palmer (“the veteran”) died on 20 February 2005 at the age of 55 years.

The applicant is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). On 13 May 2010, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission on 12 July 2010 and by the Veterans’ Review Board on 31 August 2011.
SERVICE
The veteran served in the Australian Army (“the army”) from 8 July 1970 until

7 January 1972. That included a period of service in South Vietnam from

5 February 1971 until 18 November 1971. His Vietnam service constitutes eligible war service in the form of operational service in accordance with ss 7 and 6C, respectively,

of the Act.
CAUSATION
In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:
(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 arose out of, or was attributable to, any eligible war service rendered by the veteran;…
Where, as in this case, operational service was rendered, 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.

Keep reading for free

Create a free CaseChat account to read Yvonne Palmer and Repatriation Commission 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: [2013] AATA 670
Decision Date

CaseChat Overview and Summary

In the matter of Yvonne Palmer and the Repatriation Commission, the primary issue before the Tribunal was whether the death of the veteran was attributable to or arose from his war service in Vietnam. The applicant, Yvonne Palmer, argued that her late husband's death from stomach cancer was linked to his service, potentially caused by exposure to unhygienic conditions or contaminated water during his time in Vietnam. The Tribunal was tasked with evaluating this claim and determining if there was a reasonable hypothesis that connected the veteran's stomach cancer to his war service.

The legal issues the court had to address involved the application of statutory provisions and the procedure for assessing the veteran's claim under the relevant legislation. Specifically, the court needed to determine whether the material presented raised a hypothesis that connected the veteran's death to his war service. If such a hypothesis was raised, the court had to evaluate whether it was reasonable and consistent with the applicable standard of proof. The court also had to consider if there was any evidence or expert opinion that supported a link between the veteran's exposure to conditions in Vietnam and his subsequent illness.

The court found that the evidence did not support a reasonable hypothesis that the veteran's stomach cancer arose from or was attributable to his war service. The expert evidence provided indicated that while Helicobacter pylori, the bacteria causing the gastric ulcer that led to the veteran's cancer, could have been contracted in Vietnam, it was not a certainty. Moreover, the results of the tests conducted on the veteran were negative for Helicobacter pylori, and the other symptoms he experienced during his service did not align with this infection. The court concluded that no reasonable hypothesis was raised, and therefore, the claim could not succeed. The Tribunal affirmed the decision under review, determining that the veteran's death was not war-caused.

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

The issue for the Tribunal is whether the veteran’s death arose out of, or was attributable to, any eligible war service rendered by him. EVIDENCEThe Applicant The applicant’s evidence was that she met the veteran in 1979 and that they married in 1981. She described him as a quiet man who had not discussed aspects of his service in Vietnam with her. He had been employed by a bank from shortly after leaving school and travelled around Queensland for many years with the bank. The applicant is a registered nurse with experience in surgical procedures. She was unaware of any complaint by the veteran about his stomach before he experienced an episode of severe stomach pain in January 2003. This resulted in his admission to hospital where he underwent surgery for a gastric ulcer perforation. No tests were conducted at that time for Helicobacter pylori but he was directed to have a gastroscopy done within six weeks. This procedure revealed the carcinoma of the stomach for which he underwent further surgery in 2003. The veteran made no complaint of stomach pain before 2003 but the applicant recalled that, for a year or two before surgery, he would rub his stomach which made her believe that he may have been experiencing stomach discomfort from about 2001. She was aware that, over the years, he suffered from indigestion and self-medicated with antacids.Dr David Hetzel Dr Hetzel, physician, completed a report on 31 May 2012 and gave evidence. He provided an outline of the mechanism for infection by Helicobacter pylori. It is one of the world’s most common pathogens, colonising approximately one-half of the world’s population with humans being the only known reservoir. Only a small percentage develops a clinical disease, making the process of transmission difficult to determine. He described the major risk factor as the socio-economic status of a family and he identified unhygienic conditions in food preparation and contaminated water supply as factors which may raise the risk of infection. He noted the Writeway report[6] concerning the sources of potable water for soldiers in Vietnam and opined that it was unlikely, but not impossible, for the applicant to have acquired Helicobacter pylori in Vietnam. [6] See para 20 (below). Dr Hetzel examined the veteran’s history of illness and noted that he had described episodes of diarrhoea in Vietnam. Dr Hetzel said that this was not a symptom of acute or chronic Helicobacter pylori infection and that more likely symptoms were upper abdominal pain or dyspeptic discomfort. Dr Hetzel described mucosal biopsy and histological examination of the specimen for the presence of Helicobacter pylori as the ideal diagnostic method of choice. He noted the opinion of general surgeon Dr Andrew Russell that, as the veteran was treated with acid-lowering medication for some weeks before his endoscopy test for Helicobacter pylori, the results of that test may have been flawed. However, he said that less powerful acid inhibitors which the veteran had been using such as Ranitidine (Zantac) rarely gave rise to false negatives in testing for Helicobacter pylori. He noted that biopsies were taken by Dr Russell at endoscopy and five samples were examined microscopically and that the results were negative. He also noted that the histopathology report on gastrectomy specimens were negative. Dr Hetzel referred to the review of CLO test results directed by Dr Russell in which no evidence of Helicobacter pylori infection was seen.

Decision

Reasons for decision

As a reasonable hypothesis of a relevant relationship is not raised between malignant neoplasm of the stomach and the veteran’s service, it follows that the applicant’s claim cannot succeed. Accordingly, I am satisfied beyond reasonable doubt that the veteran’s death was not war-caused in accordance with s 8 of the Act. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

David Gibson, from Writeway Research Service Pty Ltd, completed a report, dated 23 March 2012, in which he set out aspects of the conditions experienced by the veteran during his service in Vietnam in 1971. In particular, he referred to the way soldiers were rationed, how water was obtained and provided and the processes available for cleaning utensils in Nui Dat and in fire support bases in the field. He concluded that soldiers in Nui Dat were provided with fresh rations with food preparation in Nui Dat being undertaken by qualified cooks. In fire support bases, ration packs were issued and, once the base was established, catering staff at Nui Dat prepared lunches in hot boxes which were transported to the fire support bases. Potable water was available to all units based at Nui Dat from controlled wells and water. In the fire support bases, it was stored in jerry cans which were replenished from rubber bladders transported from Nui Dat.PROCEDURE FOR CONSIDERATION The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[9](i)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. (ii)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 s 196B(2) or (11). ... (iii)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 ss 196B(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. (iv)The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... 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.[9] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82–83.Step 1:- Hypothesis

Division	VETERANS' APPEALS DIVISION
File Number	2011/4928
Re	Yvonne Palmer
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	20 September 2013
Place	Brisbane