Collins and Repatriation Commission [2011] AATA 888

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 888

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2921

VETERANS’ APPEALS DIVISION		)
Re		WENDY ANNE COLLINS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  The Hon R J Groom AO (Deputy President)

Date 14 December 2011

Place Hobart

Decision  The decision under review is affirmed.

[Sgd Hon R J Groom]

Deputy President

7. There are unique provisions in the Act which facilitate proof of the relationship between a veteran’s death and his war service when the death is said to relate to operational service.

8. If a veteran’s death is related to operational service section 120(1) of the Act directs the decision maker to determine that the particular death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

9. Section 120(3) of the Act provides as follows:

In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)     that the injury was a war‑caused injury or a defence‑caused injury;

(b)     that the disease was a war‑caused disease or a defence‑caused disease; or

(c)     that the death was war‑caused or defence‑caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

10.     The requirements of section 120 are to be applied in accordance with the four stages of analysis as prescribed by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.

11. If a Statement Of Principles (“SOP”) has been issued by the Repatriation Medical Authority then any relevant SOP guides the decision maker in deciding whether a reasonable hypothesis has been raised connecting the death to the circumstances of service (see section 196B of the Act).

12. Where there is no SOP for the relevant cause or causes of death it falls to the Tribunal to consider all the material before it in order to determine whether that material points to a reasonable hypothesis connecting a cause of death with the circumstances of the late veteran’s particular service. (see Bushell v Repatriation Commission (1992) 175 CLR 408).

13.     It is necessary for the Tribunal to now determine the cause or causes of the veteran’s death. 

CAUSE OR CAUSES OF DEATH

14. Meaning of the word “death” and also the phrase “kind of death” for the purpose of the Act were considered by the Full Federal Court in Collins v Repatriation (2009) 177 FCR 280. In that case the Court held that the word “death” in the Act is a reference to…