Daphne Cross and Repatriation Commission - [2012] AATA 632

[2012] AATA 632

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/2800

Re

Daphne Cross

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton
Dr Hadia Haikal-Mukhtar

Date 20 September 2012

Place Sydney
Decision The decision under review is affirmed
.................................................
Senior Member A K Britton
CATCHWORDS
VETERANS’ENTITLEMENTS - war widow’s pension – whether death of veteran was war-caused – whether veteran’s smoking habit was war-caused – requires more than a temporal connection – not satisfied to requisite standard
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 13; 8(1); 119 (1); 120(4); 120(6); 120B (3); 196B (3); 196B (14)
CASES
Gilkinson v Repatriation Commission [2011] FCAFC 133
Comcare v Canute [2005] FCAFC 262
Knight v Repatriation Commission [2010] FCA 1134
Re Repatriation Commission v Tuite [1993] FCA 39
Repatriation Commission v Law (1981) 147 CLR 635
SECONDARY MATERIALS
Statement of Principles regarding Chronic Bronchitis and Emphysema (Instrument No. 31 of 2004)
Statement of Principles concerning Atrial Fibrillation (Instrument No. 20 of 2003).
REASONS FOR DECISION
Senior Member A K Britton
Dr Hadia Haikal-Mukhtar
August 2012

Mrs Daphne Cross seeks review of the decision made by the Repatriation Commission and affirmed by the Veterans’ Review Board to refuse her claim for a war widow’s pension. The claim was made following the death of her husband, Mr Joseph Cross, in 2009 at the age of 90.
It is not in issue that the “kind of death” suffered by Mr Cross was gastrointestinal haemorrhage and that his long term smoking habit contributed significantly to that condition. Nor is there any dispute that Mr Cross smoked heavily over a long period or that smoking is highly addictive. The sole issue to be decided is whether Mr Cross’s smoking habit was “war-caused”.
STATUTORY FRAMEWORK
As Mrs Cross was a dependent of her husband at the time of his death the Commonwealth will be liable to pay to her a pension by way of compensation if his death was “war-caused” (s 13 of the Veterans’ Entitlements Act 1986 (Cth) (the Act)).
The death of a veteran shall be taken to be “war-caused” if:
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(d) in the opinion of the Commission, the death of the veteran was due to … a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; (s 8 (1))
Mr Cross’s period of service, 1 October 1941 to 5 July 1943, constitutes “eligible service” within the meaning of the Act. Therefore the question of whether his death was “war-caused” must be assessed by applying the standard of proof set out in s 120 (4) of the Act – “reasonable satisfaction”. Neither party bears an onus of proving any matter relevant to that determination (s 120 (6)).
To be reasonably satisfied that the death of Mr…

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 Daphne Cross and Repatriation Commission

Details

AGLC: Daphne Cross and Repatriation Commission [2012] AATA 632
Case: [2012] AATA 632
Decision Date: 20 September 2012

CaseChat Overview and Summary

The matter involved Daphne Cross, a widow seeking to claim a war widow’s pension, and the Repatriation Commission, which was tasked with determining the eligibility of the claim. The central dispute was whether the death of the veteran, Daphne’s husband, was caused by his war service, specifically whether his smoking habit, which contributed to his death, was also war-caused. The case was heard in the Federal Court of Australia.

The primary legal issue that the court had to address was whether the veteran's smoking habit, which was a contributing factor to his death, could be considered as being caused by his war service. The court needed to establish if there was a sufficient causal link between the war service and the smoking habit that would justify the pension claim. The court had to determine if the mere temporal connection between the war service and the onset of the smoking habit was sufficient or if a more substantial link was required.

In delivering the judgment, the court held that for a claim to be valid, it must be demonstrated that the war service was more than a mere temporal cause of the smoking habit. The court found that the evidence presented did not meet the requisite standard to establish that the smoking habit was caused by the war service. The court emphasised that a causal link must be established with a higher degree of certainty, and a temporal connection alone was insufficient. Consequently, the court found that the death was not war-caused, and the claim for the war widow’s pension was dismissed. The court's decision was based on the lack of sufficient evidence to prove that the smoking habit was a direct result of the veteran’s war service.

Orders