Ault and Repatriation Commission - [2001] AATA 977

DECISION AND REASONS FOR DECISION [2001] AATA 977

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/254

VETERANS' APPEALS DIVISION       )
           Re      AUDREY AULT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date30 November 2001
PlaceSydney

Decision The decision under review is affirmed.

[sgd] N Bell
Member
CATCHWORDS
Veterans' Entitlements – claim for widows pension – whether death was war-caused – reasonable hypothesis
Veterans' Entitlement Act 1986, sections 8, 120 and 120A
Langley v Repatriation Commission (1993) 30 ALD 8
McKenna v Repatriation Commission (1999) 86 FCR 144
Ogston v Repatriation Commission (1999) 56 ALD 789
Re Etheridge and Repatriation Commission (1998) 51 ALD 789
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Thompson [2001] FCA 341

REASONS FOR DECISION

Ms N Bell, Member

This is an application by Mrs Audrey Ault ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") on 19 June 1998 that the death of the Applicant's husband, Mr Francis Ault ("the Veteran") was not causally related to war service. The Respondent's decision was affirmed by the Veterans' Review Board on 22 January 1999. The parties elected to have the application considered on "the papers" and without a hearing. Documentary evidence before the Tribunal included the documents lodged under s.37 of the Administrative Appeals TribunalAct 1975 ("the T-documents"), reports from Drs P Graham, Radiation Oncologist; A Glanville, Thoracic Physician; A Langlands, Consultant Oncologist; clinical notes of Dr A Willis and clinical notes from Dubbo Base Hospital and St George Hospital. The Tribunal had the benefit of written submissions from both parties.
Background

It is common ground that the veteran was engaged in operational service from 18 February 1942 to 26 February 1946 in World War 2. Prior to his death, the veteran had the following disabilities accepted by the Respondent as being war caused:
Lumbar scoliosis  14 November 1986
Anxiety state  16 August 1990
Solar keratoses  16 August 1990
Sensori-neural deafness with tinnitus                 16 August 1990
Chronic bronchitis  30 September 1991

The veteran's non-Hodgkins lymphoma was rejected by the Respondent on 15 November 1993 as not being war caused and his malignant neoplasia-large cell non-Hodgkins lymphoma was treated by the Respondent on 7 July 1993 as "Eligible for Treatment-Not Service Related".
The veteran died on 21 October 1993 (T10). The cause of death is recorded on the veteran's death certificate as "Malignant hypercalcaemia – 1week" and "Non hodgkins lymphoma – 1 year". The Applicant claimed on 12 June 1998 for the veteran's death to be accepted as war caused. The Repatriation Commission decided on 19 June 1998 to refuse the claim. This decision was affirmed by the Veteran's Review Board on 22 January 1999.
Legislation
Section 8 of the Veterans' Entitlement Act 1986 ("the Act") provides relevantly:
8 War-caused death
(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 resulted from an occurrence that happened while…

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 Ault and Repatriation Commission

Details

AGLC: Ault and Repatriation Commission [2001] AATA 977
Case: [2001] AATA 977
Decision Date: 30 November 2001

CaseChat Overview and Summary

This case involves a review application by Mrs Audrey Ault (the Applicant) regarding the decision of the Repatriation Commission (the Respondent) that the death of her husband, Mr Francis Ault (the Veteran), was not related to his war service. The Applicant's husband had served in World War 2 and had several disabilities accepted as war-caused, but his non-Hodgkin's lymphoma was rejected. The Applicant claimed that the Veteran's death was war-caused, but the Respondent refused the claim, a decision which was affirmed by the Veterans' Review Board.

The primary legal issue in this case was whether the Respondent's decision to deny the Applicant's claim that the Veteran's death was war-caused was correct. The Applicant's argument was based on a hypothesis that the Veteran's death was due to pneumonia, which in turn was contributed to by his chronic bronchitis, which the Applicant contended was war-caused. The legal issue, therefore, was whether the Applicant had established a reasonable hypothesis that the Veteran's death was war-caused. This required consideration of the relevant provisions of the Veterans' Entitlement Act 1986 and the relevant case law.

The Tribunal reviewed the evidence and submissions from both parties and concluded that the Applicant's hypothesis was not supported by the evidence. The Tribunal found that the Veteran's chronic bronchitis could not be assessed as war-caused under the relevant Schedule of Pensions (SoP) or under section 120 of the Act. As the Applicant's hypothesis relied on the Veteran's chronic bronchitis being war-caused, the Tribunal found that the hypothesis failed and affirmed the Respondent's decision.

The Tribunal's final orders affirmed the decision of the Repatriation Commission that the death of the Veteran was not war-caused. The Applicant's application for review was dismissed, and the decision of the Repatriation Commission was upheld.

Orders

Orders of the court

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Background

Background to the litigation

This is an application by Mrs Audrey Ault ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") on 19 June 1998 that the death of the Applicant's husband, Mr Francis Ault ("the Veteran") was not causally related to war service. The Respondent's decision was affirmed by the Veterans' Review Board on 22 January 1999. The parties elected to have the application considered on "the papers" and without a hearing. Documentary evidence before the Tribunal included the documents lodged under s.37 of the Administrative Appeals TribunalAct 1975 ("the T-documents"), reports from Drs P Graham, Radiation Oncologist; A Glanville, Thoracic Physician; A Langlands, Consultant Oncologist; clinical notes of Dr A Willis and clinical notes from Dubbo Base Hospital and St George Hospital. The Tribunal had the benefit of written submissions from both parties.Background It is common ground that the veteran was engaged in operational service from 18 February 1942 to 26 February 1946 in World War 2. Prior to his death, the veteran had the following disabilities accepted by the Respondent as being war caused:Lumbar scoliosis 14 November 1986Anxiety state 16 August 1990Solar keratoses 16 August 1990Sensori-neural deafness with tinnitus 16 August 1990Chronic bronchitis 30 September 1991 The veteran's non-Hodgkins lymphoma was rejected by the Respondent on 15 November 1993 as not being war caused and his malignant neoplasia-large cell non-Hodgkins lymphoma was treated by the Respondent on 7 July 1993 as "Eligible for Treatment-Not Service Related". The veteran died on 21 October 1993 (T10). The cause of death is recorded on the veteran's death certificate as "Malignant hypercalcaemia – 1week" and "Non hodgkins lymphoma – 1 year". The Applicant claimed on 12 June 1998 for the veteran's death to be accepted as war caused. The Repatriation Commission decided on 19 June 1998 to refuse the claim. This decision was affirmed by the Veteran's Review Board on 22 January 1999.Legislation Section 8 of the Veterans' Entitlement Act 1986 ("the Act") provides relevantly:8 War-caused death(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 resulted from an occurrence that happened while the veteran was rendering operational service;(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or(e) the injury or disease from which the veteran died:(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.but not otherwise.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In summary, the hypothesis raised by the Applicant was that the veteran died of, among other things, pneumonia and that his pneumonia was contributed to by his chronic bronchitis, which, in turn, it is contended, was war caused. The veteran's chronic bronchitis may be assessed as war caused or not by reference to either the SoP regime, in accordance with section 120A of the Act or by reference to section 120 of the Act. For the reasons set out above, the Tribunal has concluded that such assessment must be done by reference to the SoP relevant to the condition of chronic bronchitis, that is, SoP No. 73 of 1997. It is not contended by the Applicant that the veteran, in relation to his chronic bronchitis, satisfied any of the factors set out in that SoP and the Tribunal concludes that he did not. It follows that, as the first causative link in the Applicant's hypothesis fails to connect the veteran's chronic bronchitis with his war service, the remainder of the hypothesis also fails.Decision The Tribunal affirms the decision under review.I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, MemberSigned: R Quinn ..................................................................................... Associate

Ratio Decidendi

Legal Principle Established

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