DAWN WILKIE MCKENZIE and REPATRIATION COMMISSION - [2012] AATA 108

[2012] AATA 108

Division	VETERANS' APPEALS DIVISION
File Number	2010/3682
Re	DAWN WILKIE MCKENZIE
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	23 February 2012
Place	Melbourne

The Tribunal affirms the decision under review.

...............................[sgd].....................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans' entitlements – widow's claim – cardiomyopathy – ischaemic heart disease – atherosclerotic peripheral vascular disease – malignant neoplasm of the oesophagus – smoking – alcohol consumption – whether conditions war-caused

Veterans' Entitlements Act 1986 ss 8(1), 119, 120(1), 120(3), 120A

Bull v Repatriation Commission (2001) 188 ALR 756

Bushell v Repatriation Commission [1992] HCA 47

Collins v Repatriation Commission (2009) 177 FCR 280

Fenner v Repatriation Commission (2005) 218 ALR 122

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Law (1980) 31 ALR 140

REASONS FOR DECISION

G. D. Friedman, Senior Member

23 February 2012

Dawn McKenzie is the widow of Howard Charles McKenzie (the veteran), who died on 6 July 2009 from cardiomyopathy (heart disease). On 19 July 2010 the Veterans’ Review Board affirmed a decision of the respondent to refuse her application for a widow's pension on the basis that the death was not war-caused. Mrs McKenzie seeks a review of that decision.
The issue before the Tribunal is whether there is a causal relationship between the veteran's death and his operational service. This requires an assessment of the kind of death and consideration of whether each of the following conditions contributing to the death was connected to his service: cardiomyopathy; ischaemic heart disease; atherosclerotic peripheral vascular disease; and malignant neoplasm of the oesophagus (oesophageal cancer).

LEGISLATIVE FRAMEWORK

The veteran served in the Royal Australian Air Force (RAAF) from 10 July 1942 to 25 January 1946. His service in the Philippines from August to October 1945 was operational service under the Veterans' Entitlements Act 1986 (the Act).
Section 8(1) of the Act provides:
8(1) Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
The standard of proof in claims made in respect of the death of a veteran relating to operational service is specified in s 120(1) of the Act, which provides that the death of a veteran was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that:
…the Commission shall be satisfied… if… 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… death with the circumstances of the particular service rendered by the person.
Section 120A of the Act provides that, for the purposes of s 120(3) of the…

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: [2012] AATA 108
Decision Date: 23 February 2012

CaseChat Overview and Summary

Dawn Wilkie McKenzie has appealed a decision by the Veterans' Review Board affirming the Repatriation Commission's refusal of her application for a widow's pension. The widow's pension is available under the Veterans' Entitlements Act 1986 if the death of a veteran was war-caused. The issue before the Tribunal was whether there was a causal relationship between the veteran's death and his operational service. This required an assessment of the kind of death and consideration of whether each of the following conditions contributing to the death was connected to his service: cardiomyopathy; ischaemic heart disease; atherosclerotic peripheral vascular disease; and malignant neoplasm of the oesophagus. The Tribunal found that the kind of death was cardiomyopathy; ischaemic heart disease; atherosclerotic peripheral vascular disease; and malignant neoplasm of the oesophagus. The Tribunal found that there was insufficient evidence to raise a reasonable hypothesis that any of the four conditions were connected to the veteran's operational service. Consequently, the Tribunal was satisfied, beyond reasonable doubt, that there was no sufficient ground for determining that the death of the veteran was war-caused. The Tribunal affirmed the decision under review.

Orders