Audrey McCallum and Repatriation Commission - [2014] AATA 323

[2014] AATA 323

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3502

Re

Audrey McCallum

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member J Toohey

Date of decision

Date of reasons

26 May 2014

27 May 2014

Place

Sydney

The Tribunal affirms the decision under review.

..........................................
Senior Member J Toohey
CATCHWORDS - VETERAN’S ENTITLEMENTS – claim for war widow’s pension – ‘kind of death’ – oesophageal cancer – prostate cancer – evidence oesophageal cancer hastened veteran’s death – whether oesophageal cancer a medical cause of death – kind of death not war caused – decision under review affirmed
Legislation
Veterans Entitlements Act 1986 s 120(4)
Cases
Collins v Repatriation Commission [2009] FCAFC 90
Re Valerie FayDoolette v Repatriation Commission [1990] FCA 178; (1986) 21 ALD 489
Repatriation v Hancock (2003) 37 AAR 383
REASONS FOR DECISION
Senior Member J Toohey

These written reasons reflect the reasons given orally at the conclusion of the hearing on 26 May 2014.
Mrs Audrey McCallum claims a war widow’s pension following the death of her husband, Ian McCallum, on 19 August 2010.
Following concessions on both sides, there remains a single issue for determination, being whether oesophageal cancer was a “kind of death” for the purposes of the Veterans Entitlements Act 1986. That issue is to be determined to the reasonable satisfaction of the Tribunal: s 120(4).
Mr McCullough was diagnosed with oesophageal cancer on 5 August 2010, two weeks before he died. His death certificate lists his causes of death as:
(a)Cancer oesophagus, 2 weeks
(b)Cancer prostate, years
Mr McCallum’s records indicate that his prostate cancer had its onset in late 1999, that he remained relatively well until late 2005 when it was found to have metastasised. He was treated and seems to have done well until late July 2010 when a bone scan revealed widespread metastases and a Prostate-Specific Antigen (PSA) level which had increased from 10 to more than 2000. He was admitted to St Vincent’s Hospital where an endoscopy on 5 August 2010 revealed evidence of tumour ulceration, believed to be a new primary carcinoma.
Because of Mr McCallum’s frail condition, no biopsy was performed but there seems little doubt, and Professor John Levi, medical oncologist, gave evidence this morning that it is reasonable to assume, that he had oesophageal cancer. Evidence from Mr McCallum’s daughter, Claire Baistow, that he had been vomiting and having trouble eating in the last year of his life, suggests he may have had the condition for quite some time. Professor Levi thought it reasonable to say it had been present for several months but, in the absence of a biopsy, he could not say what its extent was.
Professor Levi gave evidence that Mr McCallum’s oesophageal cancer caused nausea and vomiting; it was debilitating and a contributing cause to his death in the sense that it was a factor associated with his decline. Professor Levi was clear, however, that while it aggravated the circumstances of the progression of the prostate cancer,…

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 Audrey McCallum and Repatriation Commission

Details

AGLC: Audrey McCallum and Repatriation Commission [2014] AATA 323
Case: [2014] AATA 323
Decision Date: 26 May 2014

CaseChat Overview and Summary

In the case of Audrey McCallum and Repatriation Commission, the Federal Court of Australia considered a claim for a war widow’s pension. The dispute centred on whether the veteran’s oesophageal cancer constituted a 'kind of death' that could be attributed to his war service, thereby qualifying his widow for the pension. The veteran had also been diagnosed with prostate cancer, and it was argued that the oesophageal cancer had hastened his death. The case required the court to determine if the oesophageal cancer was a medical cause of death and whether it could be considered a 'kind of death' that was war-caused.

The court was tasked with interpreting the relevant legislation and assessing the evidence provided regarding the interplay between the veteran's oesophageal cancer and prostate cancer. It had to decide whether the oesophageal cancer was a direct medical cause of the veteran's death and whether this cause could be attributed to his war service. The court also had to consider the overall circumstances and medical evidence to ascertain if the oesophageal cancer was a war-caused 'kind of death.'

The court reviewed the evidence and found that, while the oesophageal cancer had hastened the veteran's death, it was not the sole medical cause. The prostate cancer also played a significant role in the veteran's death. Consequently, the court held that the oesophageal cancer was not the kind of death that was war-caused. The decision of the Repatriation Commission to deny the war widow's pension was affirmed, as the oesophageal cancer did not meet the criteria for a war-caused 'kind of death.' This reasoning led to the conclusion that the widow's claim was not substantiated, and the court upheld the original decision.

Orders