DECISION AND REASONS FOR DECISION [2001] AATA 59
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N1999/1192
VETERANS' APPEALS DIVISION )
Re Joan BULL
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member
Date2 February 2001
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war widow's pension – Statement of Principles applied – whether causal relationship between death from cerebrovascular accident and the Veteran's war service
Veterans' Entitlements Act 1986 – ss 120(1), 120(3) and 120A
Statement of Principles – Instrument No 23 of 1998
Repatriation Commission v Keeley (2000) 98 FCR 108
Borrett v Repatriation Commission [2000] FCA 1829
Re Wallis and Repatriation Commission [2000] AATA 1060
Repatriation Commission v Stares (1996) 41 ALD 212
Bushell v Repatriation Commission (1992) 175 CLR 408
REASONS FOR DECISION
Mrs M T Lewis, Senior Member
This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 17 June 1998 that refused a claim made on behalf of Joan Bull ("the Applicant") that the death of her husband James Arnold Bull ("the Veteran") was related to his war service. Review by the Veterans' Review Board ("the VRB") of that decision was sought on behalf of the Applicant on 9 November 1998. That decision was reviewed by the VRB on 13 May 1999 and affirmed. The Applicant then sought review by this Tribunal.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. A statement made by Robert Pearce dated 28 June 2000 (exhibit A) and statements made by Iris Sutherland dated 26 June 2000 (exhibit B) and 8 January 2001 (exhibit C) were tendered as evidence on behalf of the Applicant. A report from Dr Hugh Pratt dated 25 July 2000 and letter of instruction from the Respondent to Dr Pratt dated 23 June 2000 were tendered as evidence on behalf of the Respondent (exhibit 1). Additionally the Respondent's advocate tendered a minute from her to Dr Kyin, Department Medical Officer, dated 13 December 2000 and minute from Dr Kyin to the advocate of the same date (exhibit 2). Mr Pearce gave oral evidence at the hearing, and Mrs Sutherland gave oral evidence by conference telephone.
backgroundThe Veteran was born on 12 June 1916. He enlisted in the Australian Army on 1 April 1941 (aged 24 years) and served in the Middle East from 31 July 1941 until 6 June 1942, thereby having operational service. He was discharged from the Army on 15 March 1946, having been deployed in an engineering unit during his service. The Veteran died on 12 November 1997 (aged 81 years). The Death Certificate provided by Dr Pratt, the Veteran's local medical officer, shows the causes of death as (T12) –
(a) Cerebrovascular accident (hours)
(b) Transient ischaemic attacks – drop attacks (5 years)
(c) Cerebral athero-sclerosis (5 years)As the Veteran had operational service, this…
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CaseChat Overview and Summary
The Tribunal noted that the Applicant's son, Robert Pearce, testified that the Veteran's drinking habits worsened after his retirement, and he consumed alcohol daily, particularly in the year before his death. The Respondent did not dispute that the Veteran consumed alcohol regularly in the year before his death but argued that there was no causal link to his war service. The Tribunal had to weigh the evidence and decide if the drinking was a result of the Veteran's war service. The Tribunal concluded that the Veteran's drinking was not causally related to his war service, as there was no evidence to suggest that his war service led to his drinking habits.
The Tribunal held that the Applicant's claim for a war widow's pension was not successful because there was no causal link between the Veteran's death and his war service. The Tribunal found that the Respondent's concession that the Veteran consumed alcohol regularly in the year before his death did not establish a causal link to his war service. The Tribunal rejected the Applicant's argument that the drinking was a result of the Veteran's war service, as there was no evidence to support this claim. The Tribunal's decision was based on the lack of evidence to establish a causal link between the Veteran's war service and his drinking habits.
The Tribunal dismissed the Applicant's claim for a war widow's pension. The Tribunal found that the Respondent had properly conceded that the Veteran consumed alcohol regularly in the year before his death, but this did not establish a causal link to his war service. The Tribunal rejected the Applicant's argument that the drinking was a result of the Veteran's war service, as there was no evidence to support this claim. The Tribunal's decision was based on the lack of evidence to establish a causal link between the Veteran's war service and his drinking habits. The Applicant's claim for a war widow's pension was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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