Crawford and Repatriation Commission

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1064

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/187

VETERANS' APPEALS  DIVISION		)
Re		ELSIE MAUD CRAWFORD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard McCabe
Dr Kenneth Levy, Member

Date13 October 2004 

PlaceBrisbane

Decision The decision under review is set aside.  The veteran’s death was war-caused.  The matter is remitted to the respondent for calculation of the rate of pension.  The date of effect of this decision is 26 August 2000.

.....................[Sgd].......................

BJ McCabe
  Senior Member

None of these issues were disputed by either party to the appeal.

15. The substantive issue to be resolved relates to section 120A(3) of the Veterans’ Entitlements Act 1986 (“the Act”). That section was introduced as an amendment to the Act in 1994 and requires that any claim after that date must be assessed as to whether there is a reasonable hypothesis connecting the death with operational or defence service. 

16.     The approach the Tribunal must follow was usefully summarised by the Full Federal Court in Repatriation Commission v Delidio (1998) 83 FCR 82. It involves four stages.

17. At the first stage the Tribunal must be satisfied a hypothesis exists which connects the injury or death with the circumstances of a veteran’s service. The second stage requires the Tribunal to identify whether there is a Statement of Principles (SoP) in force in respect of the injury or death. (They are issued pursuant to section 196B(2) or (11) of the Act). The Tribunal must then be satisfied the hypothesis raised by the applicant fits the SoP. If it does, the hypothesis is deemed reasonable in accordance with section 120(3) of the Act. The Tribunal cannot make ultimate findings of fact at this point: see Elliott v Repatriation Commission (2002) 73 ALD 377 at 384. Under section 120(1) the veteran is then presumed to succeed – unless the Tribunal can be satisfied beyond reasonable doubt that a necessary fact of the hypothesis can be disproved, or an inconsistent fact proved. This is a “heavy burden of disproof” (Law v Repatriation Commission (1980) 29 ALR 74). The High Court said the section “imposes on the Commission an onus of disproof” (Repatriation Commission v Law (1981) 147 CLR 638).

Consideration and Analysis

18.      The facts show that a death certificate was issued listing the causes of death as:

“1(a) Ventricular arrhythmia (b)  Ischaemic heart disease 2. Peripheral vascular disease, chronic airways disease.”

19.     Based on the causes of death and a known smoking history of the veteran, which was apparently linked at least to the period of operational service, the Tribunal is satisfied there is a hypothesis connecting the veteran’s death with the circumstances of his relevant service.

20.     The following SoPs are relevant:

§  Instrument No 73 of 1997 – Chronic Bronchitis

§  Instrument No 65 of 2002 – Atherosclerotic Peripheral Vascular Disease

§  Instrument No 53 of 2003 – Ischaemic Heart Disease

21.     The next stage…