Fay Collins and Repatriation Commission - [2014] AATA 787

[2014] AATA 787

Division VETERANS’ APPEALS DIVISION

File Number(s)

2012/3658

Re

Fay Collins

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr D Letcher QC, Senior Member

Date 24 October 2014

Place Sydney
The decision under review is affirmed.

.........................[SGD]...............................................
Mr D Letcher QC, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – pension – operational service – claim that the veteran’s death was war-caused – consideration of Statement of Principles – the Tribunal affirms the decision under review
LEGISLATION
Veterans Entitlement Act 1986 ss 7(1)(a), 8, 13(1), 120A, 120B

Statement of Principles Concerning Anxiety Disorder (Instrument No 102 of 2007)
CASES
Repatriation Commission v Cornelius [2002] FCA 750

Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
Mr D Letcher QC, Senior Member
24 October 2014

The Applicant, Mrs Faye Collins, is the widow of the veteran, Mr Vincent Collins. On 5 November 2010 Mrs Collins made a claim for pension in respect of the death of her late husband. On 28 February 2011, a delegate of the Repatriation Commission determined that Mr Collin’s death was not war-caused and refused Mrs Collin’s claim. On 16 July 2012 the Veteran’s Review Board affirmed the decision of the delegate. The Applicant now seeks review of this decision with this Tribunal.
Mr Collins was born on 23 June 1917 and passed away on 25 August 2010 aged 93 years. He served as a medical orderly in the Field Ambulance of the Australian Army from 28 May 1942 to 28 July 1945, including service overseas at Merauke, Dutch New Guinea from 1 June 1943 to 29 February 1944. His whole army service period is classified as “operational war service”, and thus eligible service, for the purposes of this application: s 7(1)(a) of the Veterans Entitlement Act 1986 (“the Act”).
The Applicant claims that Mr Collins met his “kind of death” following a chain of conditions satisfying the Statements of Principles. Those conditions are generalised anxiety disorder leading to hypertension then cardiovascular accident then vascular dementia.
LEGISLATION
Section 8 of the Act provides for when an injury or disease is taken to be war-caused:
War-caused death
(1)Subject to this section and section 9A, 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;
(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 an accident that would not have occurred, or 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
...
Section 13(1) provides, in effect, that where the death of a veteran was war-caused, the Commonwealth is liable to pay a pension by way of…

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 Fay Collins and Repatriation Commission

Details

AGLC: Fay Collins and Repatriation Commission [2014] AATA 787
Case: [2014] AATA 787
Decision Date: 24 October 2014

CaseChat Overview and Summary

The case involves Fay Collins, who sought a pension based on the claim that her late husband's death was caused by his war service. The matter was heard by the Administrative Appeals Tribunal, which was required to decide if the death of the veteran was caused by his service, thus making him eligible for a pension under the relevant legislation. The Tribunal had to consider whether the death was connected to the veteran's service, and if so, whether this connection was sufficient to warrant a pension.

The key issue before the Tribunal was whether the veteran's death was sufficiently linked to his operational service to be considered a war-caused death. The Tribunal had to interpret the relevant legislation and the Statement of Principles to determine if the veteran's death could be attributed to his service. The Tribunal also needed to consider whether the evidence provided by Mrs Collins and other witnesses was sufficient to establish the required causal link.

The Tribunal carefully reviewed the evidence and the relevant legal criteria. It concluded that while the veteran's service did involve stresses and hardships, the evidence did not establish a sufficient causal link between the service and the veteran's death to warrant a pension under the legislation. The Tribunal acknowledged the hardships faced by veterans and their families but found that the evidence did not meet the necessary standard for a war-caused death. Therefore, the Tribunal affirmed the decision under review.

The Tribunal's final order was to affirm the decision that Mrs Collins' claim for a pension based on her late husband's war service was not substantiated. The Tribunal expressed understanding for her belief that her husband's service adversely affected his life but found the evidence insufficient to meet the statutory requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

While unable to give Mrs Collins the satisfaction of having her claim succeed, the Tribunal wishes to express its understanding of her stated belief that her late husband’s life was adversely affected by the service he gave to his country in time of war. That such service involved stresses and hardships for those who served and also for the families they left behind is acknowledged with appreciation. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS’ APPEALS DIVISION
File Number(s)	2012/3658
Re	Fay Collins
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr D Letcher QC, Senior Member
Date	24 October 2014
Place	Sydney