Chugg and Repatriation Commission (Veterans' entitlements) - [2022] AATA 3381

Chugg and Repatriation Commission (Veterans' entitlements) [2022] AATA 3381 (17 October 2022)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/2850
Re:Aileen Chugg
APPLICANT

AndRepatriation Commission
RESPONDENT

Decision
Tribunal:Mr A. Maryniak KC, Member
Date:17 October 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.................[sgd].......................................................
Mr A. Maryniak KC, Member
Catchwords
VETERANS' AFFAIRS - War widow's pension - Whether veteran's death was "war-caused" - Applicant accepts application cannot succeed unless ischemic heart disease made a relevant contribution to the veteran's death or kind of death - cause of death held to be cerebral ischaemia, dementia, aspiration and pneumonia - kind of death held to be aspiration and pneumonia as a consequence of dementia and cerebral ischaemia - decision affirmed
Legislation
Veteran’s Entitlement Act 1986 (Cth)
Cases
Collins v Repatriation Commission [2009] FCAFC 90
Hill v Repatriation Commission [2009] FCAFC 91
REASONS FOR DECISION
Mr A. Maryniak KC, Member
17 October 2022

The Applicant seeks review of a decision to deny a claim for a pension under the Veteran’s Entitlement Act 1986 (Cth) (the Act) in respect of her late husband, Mr Geoffrey Chugg (the veteran).
background
The veteran died, aged 91, on 24 July 2017. He joined the Royal Australian Air Force on 5 January 1944 and was discharged on 26 April 1946. It is agreed that the whole of the veteran’s service constitutes operational service, hence eligible war service under ss 7(1)(a) and 6A of the Act. He served a total of 807 days, excluding 24 days of leave.
The first issue to be determined is the veteran’s cause(s) of death and kind of death, which is a question of fact to be resolved upon the evidence before the Tribunal, on the balance of probabilities or to the reasonable satisfaction of this Tribunal. In identifying the medical cause or causes of death, the focus is on the underlying cause of death, not only on the terminal event of death. The Tribunal’s task is to determine whether one or more of the conditions which the veteran suffered from had any real role in the pathological cause of his death.[1]
[1] Collins v Repatriation Commission [2009] FCAFC 90 at [44] to [52], [84] (‘Collins’); Hill v Repatriation Commission [2009] FCAFC 91 at [19] to [25].
The Applicant concedes that she cannot succeed with this review unless ischemic heart disease (IHD) made a contribution to the veteran’s death or kind of death.[2]
[2] Transcript p2 lines 38 to 44 and Applicant’s Closing Submissions (ACS) dated 21 February 2022 [13].
For the purposes of the Act, s 8 provides that the death of a veteran shall be war-caused if, by s 8(1)(b), the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran. Further relevant aspects are agreed by the parties and accepted by the Tribunal, as set out in paragraphs 6 to 8 below.
Section 13(1) of the Act provides that…

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: [2022] AATA 3381
Decision Date: 17 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the dispute between Ms Chugg and the Repatriation Commission concerning Ms Chugg's claim for a war widow's pension. The central issue was whether the death of her late husband, a veteran, was "war-caused" within the meaning of the relevant legislation.

The Tribunal was required to determine whether the veteran's death, which was recorded as cerebral ischaemia, dementia, aspiration, and pneumonia, constituted a "war-caused" death. Specifically, the Tribunal had to assess whether ischemic heart disease made a relevant contribution to the veteran's death or the kind of death.

The Tribunal affirmed the decision of the Repatriation Commission. It reasoned that the applicant accepted that her claim could not succeed unless ischemic heart disease was found to have made a relevant contribution to the veteran's death or the kind of death. The Tribunal found that the cause of death was cerebral ischaemia, dementia, aspiration, and pneumonia, and the kind of death was aspiration and pneumonia as a consequence of dementia and cerebral ischaemia. No evidence was presented to establish that ischemic heart disease made a relevant contribution to these conditions or the ultimate cause of death.

Orders