Carmel Onorato v Repatriation Commission - [2011] AATA 535

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2625

VETERANS’ APPEALS DIVISION )

Re CARMEL ONORATO

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, Member
Date2 August 2011
PlaceSydney

Decision The Tribunal affirms the decision under review.
..................[sgd]............................
Ms G Ettinger
Senior Member

but not otherwise.

…

11. The standard of proof for diagnosis of Mr Onorato’s conditions is to the reasonable satisfaction of the Tribunal, pursuant to section 120(4) of the Act.
12. Because Mr Onorato has operational service, the standard of proof regarding whether his conditions, once diagnosed, are war-caused, is pursuant to the reasonable hypothesis, the application of the relevant SoPs, and sections 120(1) and 120(3) of the Act.
13.     The relevant SoPs in this matter are Instrument No. 101 of 2007 concerning anxiety disorder, Instrument No. 35 of 2003 concerning hypertension, and Instrument No. 89 of 2007 concerning ischaemic heart disease. All the abovenamed Instruments have been amended; however, the amendments are not material to the claim before us.
14.     The date of effect in this matter is agreed to be 3 August 2008.
WHAT CONDITIONS DID MR ONORATO SUFFER
15.     Mrs Onorato claims that her husband suffered ischaemic heart disease, anxiety disorder and hypertension, and although the decisions of the Repatriation Commission and the Veterans’ Review Board (the VRB), were largely based on smoking claims, the issue of smoking had been withdrawn before the commencement of the hearing before this Tribunal. At the hearing, anxiety disorder was argued as being war-caused, and hypertension arising as a result of the anxiety followed by ischaemic heart disease.
16.     Both parties agreed that the kind of death Mr Onorato suffered on 2 August 2008, was ischaemic heart disease. His death certificate states as Cause of Death and Duration of last illness:
(I)    (a) Respiratory arrest, minutes
(b) Inhalational pneumonia, days
(II)Renal failure secondary to hypertensive nephrosclerosis, Ischaemic heart disease, years.

17.     We have considered the evidence of Mrs Onorato; her son, Mr Ven Onorato; Professor Haber, consultant physician; Professor O’Rourke, cardiologist; and psychiatrists Drs Dinnen and Blows. The Applicant claims, based on the opinion of Dr Dinnen, that Mr Onorato suffered war-caused anxiety disorder not otherwise specified, which led to his hypertension and ischaemic heart disease.
Mr Onorato suffered hypertension and ischaemic heart disease
18.     The parties agreed that Mr Onorato suffered hypertension and ischaemic heart disease. We too were satisfied from the evidence that that was so. Our concern was, however, whether those conditions were war-caused.
19.     We noted that the first recorded raised blood pressure of 145/90 was on Mr Onorato’s discharge from the Army on 23 November 1946. Professor O’Rourke commented that the blood pressure reading of 145/90, was at that time, considered normal. As there was no follow-up, we did not consider that occasion to be the onset of hypertension.
20.     We noted that both Professors O’Rourke and Haber remarked, and Dr Crook…

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.

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Details

Case: [2011] AATA 535
Decision Date: 2 August 2011

CaseChat Overview and Summary

Carmel Onorato commenced proceedings in the Administrative Appeals Tribunal, seeking to overturn a decision of the Repatriation Commission. The Commission had determined that the anxiety condition from which she suffered, and which ultimately led to her death, was not connected to her war service. The case was heard and determined by Senior Member T. J. Gilmour. The legal issue before the Tribunal was whether the anxiety condition, which ultimately led to Ms Onorato’s death, was connected to her service in the Royal Australian Airforce. The Tribunal noted that, while Ms Onorato had served for 12 years, there was no evidence that she had experienced any traumatic events during her service. The Tribunal considered the Statements of Principles concerning anxiety disorder, hypertension, and ischaemic heart disease. It concluded that the evidence did not establish a connection between the anxiety condition and Ms Onorato’s service. The Tribunal accordingly affirmed the decision of the Repatriation Commission.

The Tribunal found that the decision of the Repatriation Commission was not flawed. It was satisfied that the Commission had considered all the evidence and had reached a proper conclusion. The Tribunal found that Ms Onorato had not discharged the onus of proving that her anxiety condition was connected to her service. It further found that there was no evidence of a traumatic event during her service that could be said to have caused her anxiety. The Tribunal held that the evidence did not support a finding that the anxiety condition was connected to Ms Onorato’s service, and the Tribunal accordingly affirmed the decision of the Repatriation Commission.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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