Dillon and Repatriation Commission - [2008] AATA 276

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 276
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No. 2007/2649
VETERANS' APPEALS DIVISION  )

Re NOLA FRANCES DILLON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: G. D. Friedman, Senior Member
Date:7 April 2008
Place:Melbourne

Decision:
The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Senior Member

VETERANS' AFFAIRS - veterans’ entitlements - widow’s claim - death from cerebrovascular accident - smoking - whether condition war-caused
Veterans' Entitlements Act 1986 ss 8, 119, 120(1), 120(3), 120A
Bull v Repatriation Commission (2001) 188 ALR 756
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Fenner v Repatriation Commission (2005) 218 ALR 122
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
REASONS FOR DECISION

7 April 2008 G. D. Friedman, Senior Member

1.        Nola Dillon is the widow of Graham Francis Dillon (the veteran), who died in 1995 from cerebrovascular accident (stroke). Mrs Dillon seeks a widow’s pension on the basis of her late husband’s increased smoking during his service with the Royal Australian Navy.
2.        The issue before the Tribunal is whether there is a causal relationship between the veteran’s death and his smoking while on operational service.
WHAT IS THE LEGISLATIVE FRAMEWORK?
3.        The veteran served in the navy from 25 June 1951 to 24 June 1957. His service in Korea from 3 June 1953 to 12 February 1954 was operational service under the Veterans’ Entitlements Act 1986.
4. 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;

…

5. 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 Act:
…a hypothesis connecting the… death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force… a Statement of Principles (SoP)… that upholds the hypothesis.

6. In cases where s 120A of the Act applies, the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 set out a four‑step process:
1.…

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 Dillon and Repatriation Commission

Details

AGLC: Dillon and Repatriation Commission [2008] AATA 276
Case: [2008] AATA 276
Decision Date: 7 April 2008

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal involved Nola Frances Dillon, who sought a widow's pension based on her late husband Graham Francis Dillon's increased smoking during his service in the Royal Australian Navy, which she argued led to his death from a cerebrovascular accident in 1995. The Tribunal needed to determine if there was a causal relationship between the veteran's death and his smoking during his operational service.

The primary legal issue was whether the veteran's death from a cerebrovascular accident was war-caused under the Veterans' Entitlements Act 1986. The relevant sections of the Act, particularly sections 8, 120(1), 120(3), and 120A, were critical in framing the Tribunal's inquiry. The Tribunal followed a four-step process as outlined in Repatriation Commission v Deledio and Repatriation Commission v Hancock, which involved determining if the material presented raised a hypothesis connecting the death with the veteran's service, ascertaining if there was an applicable Statement of Principles (SoP), determining if the hypothesis was reasonable, and deciding if it was satisfied beyond reasonable doubt that the death was not war-caused.

After reviewing the evidence, including statements from Mrs Dillon and her son, the Tribunal found that while there was a hypothesis connecting the veteran's smoking with his service, the evidence did not support a reasonable hypothesis that the smoking increased during his operational service. The Tribunal gave more weight to the veteran's own account of his smoking habits, which indicated a consistent smoking rate that did not increase during his service. The inconsistencies in Mrs Dillon's accounts and the son's recollections were deemed less reliable. Consequently, the Tribunal concluded that the claim did not meet the required standard of proof beyond reasonable doubt that the death was war-caused.

The Tribunal affirmed the decision under review, denying Mrs Dillon's claim for a widow's pension based on the causal link between the veteran's smoking and his operational service.

Orders