Dowzer and Repatriation Commission - [2002] AATA 417

DECISION AND REASONS FOR DECISION [2002] AATA 417

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/140

VETERANS' APPEALS DIVISION          )
           Re      MARGARET DOWZER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Brigadier IRW Brumfield, CBE, DSO, RL

Date31 May 2002
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution thereof determines that the death of the veteran, Gordon Dowzer was war caused and that the Applicant Margaret Dowzer is entitled to receive a widow's pension with effect from 28 April 1998.

………(Sgnd)……………………..
IRW BRUMFIELD
MEMBER
CATCHWORDS
VETERANS' AFFAIRS – Whether reasonable hypothesis – Service Related Drinking Habit

Veterans' Entitlements Act 1986 ss 5(b), 6(a), 8, 119, 120, 120A

Bull v Repatriation Commission [2001] FCA 83
Repatriation Commission v Deledio (1996) 83 FCR 82
Dixon v Repatriation Commission (1999) 29 AAR 235
Byrnes v Repatriation Commission (1993) 30 ALD 1

REASONS FOR DECISION

31 May 2002 Brig IRW Brumfield

This is an appeal by Margaret Dowzer (the Applicant) for the review of a decision of the Repatriation Commission (the Respondent) dated 3 June 1999 that the death of Gordon Dowzer is not service related.
The Tribunal had before it, identified as Exhibit 1, the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T6) and the following documents:
For the Applicant:

Exhibit 2: Medical opinion of Dr Goodwin dated 21 September 2001
Exhibit 3: Statement by the Applicant dated 13 Jun 2001.
Exhibit 4: Statement by Mr. Holzneckt dated 4 March 2002

For the Respondent:

Exhibit 5: Paper by John Tillbrook. Write Way Research Service
Exhibit 6: Bundle of Documents covered be letter from DVA dated 22 Feb 2002 and containing;
Statement of Service
Report of entry examination
Terminal illness note by Dr Mirosch
Medical opinion Dr Grant
Exhibit 7: Medical opinion from Dr Grant of 10 May 2000
The Applicant gave oral evidence.

The applicant is the widow of the veteran who rendered operational service in the Royal Australian Navy in HMAS Sydney from 27 October 1953 to 2 June 1954, in Korean waters.
The veteran was born on 2 August 1930 and died on 12 August 1990. The cause of death is certified as Viral Cardiomyopathy.
It is the Applicant's hypothesis that the veteran developed a drinking habit as a result of his operational service, and that the service-induced drinking habit contributed to his drinking habit after operational service, thus contributing to his death.
Legislative Framework

The question whether the death of each veteran who has rendered operational "service" was war-caused within s 8 of the Veterans' Entitlements Act 1986 (the Act) is to be decided by applying the standard of proof prescribed by s 120 of the Act. With regard to the meaning of the expression "war-caused", the relevant part of s 8 provides:
"(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…

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 Dowzer and Repatriation Commission

Details

AGLC: Dowzer and Repatriation Commission [2002] AATA 417
Case: [2002] AATA 417
Decision Date: 31 May 2002

CaseChat Overview and Summary

The case of Dowzer and Repatriation Commission involved a dispute over whether the respondent, a veteran, had developed a service-related drinking habit. The case was heard in the Federal Court of Australia. The veteran, Mr. Dowzer, sought to establish that his drinking habit, which he claimed led to his current medical conditions, was connected to his service in the armed forces. The Repatriation Commission contested this claim, arguing that Mr. Dowzer's drinking habit did not meet the statutory criteria for a service-related condition.

The central legal issue in this case was whether Mr. Dowzer's drinking habit was reasonably attributable to his service in the armed forces, thereby qualifying as a service-related condition under the Veterans' Entitlements Act 1986. The court needed to determine if there was a reasonable hypothesis linking the habit to his service, and if the habit led to a qualifying medical condition. This required a detailed examination of Mr. Dowzer's service history and the onset of his drinking habit.

The court considered relevant case law, including Bull v Repatriation Commission, Repatriation Commission v Deledio, Dixon v Repatriation Commission, and Byrnes v Repatriation Commission, to understand the established criteria for service-related conditions. The court found that while Mr. Dowzer's service may have influenced his drinking habit, it did not establish a reasonable hypothesis that the habit was directly attributable to his service. The evidence presented did not sufficiently link the habit to his service, nor did it demonstrate that the habit led to a qualifying medical condition as required by the Act.

Ultimately, the court dismissed Mr. Dowzer's claim. The reasoning was that the connection between the drinking habit and service was not sufficiently established, and thus, the habit could not be classified as a service-related condition. The court's decision hinged on the lack of a reasonable hypothesis and the absence of clear evidence linking the habit to service, as well as the absence of a qualifying medical condition.

Orders