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Codd and Repatriation Commission

Codd and Repatriation Commission

Case [2008] AATA 1177 19 November 2008

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Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1177
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200500662

VETERANS' APPEALS DIVISION )

Re KATHLEEN MARY CODD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Justice PRA Gray, Presidential Member
Miss EA Shanahan, Member
Date19 November 2008
PlaceMelbourne

Decision The Tribunal’s decision is that:
1.The decision of the Veterans’ Review Board made on 10 October 2002 be set aside.
2.There be substituted for that decision a decision that the applicant is entitled to pension, pursuant to the Veterans’ Entitlements Act 1986 (Cth), as the dependant widow of Ronald Kevin Codd, who died on 7 December 1968, and whose death was war-caused.
(sgd) PRA GRAY
Presidential Member

VETERANS’ AFFAIRS – widow’s pension – veteran killed in road accident – kind of death – whether death was caused by consumption of alcohol – hypothesis advanced connecting veteran’s death with a habit of heavy drinking developed as a result of operational service
Defence Act 1903 (Cth) s 30
Veterans’ Entitlements Act 1986 (Cth) ss 5B(1), 5C(1), 6A(1) item 1(a), 7(1)(a), 8(1), 11(1)(c), 13(1), 14, 119, 120, 120A, 120B, 196B(1), 196B(2), 196B(3)
Statement of Principles concerning alcohol dependence and alcohol abuse No. 76 of 1998
Statement of Principles concerning alcohol dependence and alcohol abuse No. 17 of 2008
Benjamin v Repatriation Commission [2001] FCA 1879 (2001) 70 ALD 622
Re Codd and Repatriation Commission [2004] AATA 876
Re Codd and Repatriation Commission [2006] AATA 905
Lees v Repatriation Commission [2002] FCAFC 398 (2002) 125 FCR 331
Mines v Repatriation Commission [2004] FCA 1331 (2004) 86 ALD 62
Preston v Repatriation Commission (1993) 45 FCR 214
Repatriation Commission v Budworth [2001] FCA 1421 (2001) 116 FCR 200
Repatriation Commission v Codd [2005] FCA 888
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton [2001] FCA 1194 (2001) 110 FCR 321
Repatriation Commission v Gosewinckel [1999] FCA 1273 (1999) 59 ALD 690
Repatriation Commission v Hancock [2003] FCA 711 (2003) 37 AAR 383
Repatriation Commission v Keeley [2000] FCA 532 (2000) 98 FCR 108
Repatriation Commission v Smith (1987) 15 FCR 327
Shelton v Repatriation Commission [1999] FCA 181 (1999) 85 FCR 587
REASONS FOR DECISION

19 November 2008
Justice PRA Gray, Presidential Member
Miss EA Shanahan, Member
THE NATURE AND HISTORY OF THE PROCEEDING
1. The applicant in this proceeding, Kathleen Mary Codd, has applied for a widow’s pension, pursuant to the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). Mrs Codd is the widow of Ronald Kevin Codd (“the deceased”), who died on 7 December 1968 when the passenger train from Albury to Melbourne, known as the Spirit of Progress, collided with the truck the deceased was driving for his employer, the Country Roads Board (“the CRB”), at the Witt Street level crossing in Benalla. The principal issue in the proceeding is whether the deceased’s death was war‑caused. For a number of reasons, including the paucity…

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 Codd and Repatriation Commission

Details

AGLC: Codd and Repatriation Commission [2008] AATA 1177
Case: [2008] AATA 1177
Decision Date: 19 November 2008

CaseChat Overview and Summary

This case involved a claim for a widow's pension under the Veterans' Entitlements Act 1986 (Cth) by Kathleen Mary Codd, the widow of Ronald Kevin Codd, who died in a road accident in 1968. The primary issue was whether Ronald's death was war-caused, specifically whether it resulted from his war service in World War II, which might have led to alcohol dependence or alcohol abuse. The Administrative Appeals Tribunal (AAT) was required to determine if Ronald's death was connected to his war service, particularly if his excessive drinking, which contributed to the accident, could be linked to his wartime experiences.

The Tribunal considered the evidence and the relevant Statement of Principles concerning alcohol dependence and alcohol abuse, which sets out the criteria that must exist to connect such conditions with service rendered by a person. The Tribunal found that Ronald's heavy drinking was part of a pattern of alcohol abuse, which was likely triggered by his exposure to traumatic events during his service in New Guinea. The Tribunal concluded that Ronald's drinking habits, which began after his war service, were a result of his experiences as a stretcher-bearer and his exposure to the sight of casualties, fitting within the definition of a severe stressor under the Statement of Principles.

The Tribunal also found that it was not satisfied beyond reasonable doubt that Ronald's death was not war-caused. Although there was conflicting evidence about the exact nature of his war service and the onset of his drinking habits, the Tribunal considered the hypothesis connecting his death to his war service to be reasonable and consistent with the evidence. Therefore, the Tribunal set aside the previous decision of the Veterans' Review Board and determined that Ronald's death was war-caused, entitling Mrs. Codd to a pension as his widow under the Veterans' Entitlements Act 1986.

Orders