Anderson and Repatriation Commission - [2007] AATA 1189

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1189
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N200600315

VETERANS’ APPEALS DIVISION )

Re LORNA ANDERSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr Campbell, Member
Rear Admiral Horton AO, Member
Date29 March 2007
PlaceSydney

Decision The decision under review is set aside and in substitution thereof Mrs Anderson is entitled to payment of a war widow’s pension, with the date of effect being 26 May 2004.
..................[sgd].......................
Dr Campbell
Presiding Member

CATCHWORDS
VETERANS’ ENTITLEMENTS - War Widow Pension - veteran's death from myocardial infarction with prior ischaemic heart disease and long term obesity conditions - periods of operational service - a hypothesis involving nature and conditions of employment in the veteran's early years of service (operational), the development of a dietary habit leading to the condition of obesity - decision under review set aside.
Veterans’ Entitlement Act 1986 – sections 8, 13, 119, 120, 120A
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hancock (2003) 37 AAR 383
Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Hill (2002) 69 ALD 581
Cooke v Repatriation Commission (1997) 45 ALD 205
Lees v Repatriation Commission (2002) 74 ALD 68
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION

29 March 2007 Dr Campbell, Member
Rear Admiral Horton AO, Member

1.      Mr George Anderson served in the Royal Australian Navy from 19 September 1946 to his discharge on 3 January 1966. Mr Anderson rendered 14 periods of operational service, the longest period being between his date of enlistment and 2 January 1949, with other periods being for a period of a few weeks at a time in 1956(once), 1957 (twice), 1958 (twice), 1961 (three times), 1962 (once), 1963 (three times) and 1965 (once).
2.      Mr Anderson died on 23 June 2000, the cause of death nominated on the death certificate being myocardial infarction.
3.      Mrs Anderson married the late veteran in 1949. Mrs Anderson lodged a claim for a war widow’s pension on 26 August 2004. Mrs Anderson’s claim was denied by the Repatriation Commission on 14 September 2004, a decision which was affirmed by the Veterans’ Review Board on 27 February 2006.
4.      Mrs Anderson’s contends that her late husband’s death was war-caused in that the nature and conditions of his employment as a Stoker led to him developing a dietary habit early in his service. In turn, this led to an increase in his body weight, so much so that he became obese, a condition which remained with him for the remainder of his life, and that this condition was a causal or contributing factor to his ischaemic heart disease, which resulted in his death from myocardial infarction.
issues
5.The relevant issues in this matter are:
(a)What is the kind of death suffered by the late veteran?
(b)Is there a Statement of Principles (“SoP”) applicable to the kind of death suffered?
(c)What, if any, factor contained within the relevant SoP is…

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 Anderson and Repatriation Commission

Details

AGLC: Anderson and Repatriation Commission [2007] AATA 1189
Case: [2007] AATA 1189
Decision Date: 29 March 2007

CaseChat Overview and Summary

In the case of Anderson v Repatriation Commission, the central issue was the eligibility of Mrs Anderson for a war widow's pension following the death of her husband, a war veteran. The matter was heard and determined in the Federal Court of Australia. The veteran had passed away from a myocardial infarction, a condition that developed against a background of ischaemic heart disease and long-standing obesity. Mrs Anderson sought to establish a link between her husband's service and his health conditions, which the Commission had previously denied.

The legal issues that arose in the case focused on whether the veteran's operational service and the conditions of his employment during that period were sufficiently linked to the development of his ischaemic heart disease and obesity. This required an examination of the evidence presented regarding the nature and conditions of his service, the onset of his dietary habits, and their long-term effects on his health. The court had to determine whether the veteran's service was a contributing factor to his health conditions, and if these conditions were war-related, thereby qualifying Mrs Anderson for a war widow's pension.

The Federal Court, in its reasoning, found that the decision of the Repatriation Commission did not adequately consider the evidence presented regarding the veteran's service and the onset of his health conditions. The court held that there was a plausible hypothesis linking the veteran's service to the development of his obesity and subsequent ischaemic heart disease. As such, the court concluded that the Repatriation Commission's decision was flawed and set it aside. The court determined that Mrs Anderson was entitled to a war widow's pension, effective from 26 May 2004.

In its final orders, the court set aside the original decision of the Repatriation Commission and substituted it with a ruling that Mrs Anderson is entitled to payment of a war widow's pension, effective from 26 May 2004. This decision was based on the court's finding that there was a plausible connection between the veteran's service and his health conditions, which met the statutory criteria for pension entitlement.

Orders

Orders of the court

The decision under review is set aside and in substitution thereof Mrs Anderson is entitled to payment of a war widow’s pension, with the date of effect being 26 May 2004.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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