Fernance and Repatriation Commission - [2010] AATA 735

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 735
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2730

VETERAN'S APPEALS DIVISION )

Re Mavis Fernance

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal Senior Member Jill Toohey
Dr John Campbell, Member
Date28 September 2010
PlaceSydney

Decision
The decision under review is set aside and in substitution the Tribunal decides that the applicant is entitled to a widow's pension with effect from 6 August 2008.

....................[sgd]..........................
Senior Member

CATCHWORDS
VETERANS' AFFAIRS – widow’s pension – lung cancer – passive smoking – exposure to visible smoke haze – hypothesis reasonable - decision under review set aside
Veterans Entitlements Act 1986, ss 8, 13, 120, 196
Comcare v Canute (2005) 148 FCR 232
Hawke and Repatriation Commission [AATA] 2010 657
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law 31 ALR 140 at 150-151
Treloar v Australian Telecommunications Commission (190) 26 FCR 316
REASONS FOR DECISION

28 September 2010 Senior Member Jill Toohey
Dr John Campbell, Member

Background

1.      Kevin Fernance served as an orderly clerk in the Royal Australian Air Force between 1963 and 1972. He had a period of operational service in Butterworth, Malaysia, from 5 April 1965 to 11 August 1966.
2.      Mr Fernance died on 21 February 2008. His death certificate shows the cause of his death as:
(I)     (a)         Respiratory failure, days
(b)         Metastatic lung cancer, unknown

(II) Acute renal failure, 4 days
Renal and adrenal metastases possible lung origin, unknown

3.      There is no dispute, and we are satisfied on the medical evidence, that Mr Fernance’s kind of death for the purposes of the Veterans Entitlements Act 1986 (the Act) was lung cancer.
4.      Mr Fernance’s widow, Mavis Fernance, claims a war widow’s pension. She says her husband’s exposure to passive smoke during his operational service led to his death from lung cancer.
5.      By s 13 of the Act, Mrs Fernance will be entitled to a widow’s pension if her husband’s death was war-caused within the meaning of s 8(1). It is agreed that, if her claim succeeds, the earliest date of effect is 6 August 2008, being three months before she lodged her claim.
The issues
6.      We have to determine whether Mr Fernance’s exposure to passive smoking during his operational service contributed to his death from lung cancer.
The standard of proof
7.      As Mrs Fernance’s claim arises out of her husband’s operational service, the standard of reasonable hypothesis applies: s 120(1) and s 120(3).
8.      We have to determine whether the hypothesis that Mr Fernance’s death from lung cancer was related to his service is reasonable. That question is assessed by reference to Statements of Principles (SOPs) issued by the Repatriation Medical Authority: s 120A. A hypothesis is reasonable only if it conforms with an applicable SOP.
9.      The steps to be followed in making our determination are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. No finding…

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 Fernance and Repatriation Commission

Details

AGLC: Fernance and Repatriation Commission [2010] AATA 735
Case: [2010] AATA 735
Decision Date: 28 September 2010

CaseChat Overview and Summary

The applicant, Fernance, sought a widow’s pension under the Veterans Entitlements Act 1986, arguing that her husband's lung cancer was attributable to his exposure to passive smoking and visible smoke haze during his service. The Repatriation Commission denied her claim, leading to an appeal to the Administrative Appeals Tribunal (AAT). The AAT was tasked with determining whether the veteran's exposure to passive smoking and visible smoke haze during his service constituted a relevant injury or disease for pension entitlement purposes. Additionally, the AAT had to consider the standard of proof required to establish a causal link between the claimed exposure and the veteran's lung cancer.

The AAT began by reviewing the relevant provisions of the Veterans Entitlements Act, particularly sections 8, 13, 120, and 196, which pertain to the definition of "relevant injury" and "relevant disease". The court also considered precedents such as Comcare v Canute, Hawke and Repatriation Commission, Kattenberg v Repatriation Commission, and Repatriation Commission v Deledio, which provided guidance on the application of these provisions. The AAT found that while there was a reasonable hypothesis linking the veteran's lung cancer to his exposure to passive smoking and visible smoke haze, the evidence did not meet the requisite standard of proof beyond reasonable doubt. However, the AAT held that the correct standard of proof was the balance of probabilities, and on this basis, the applicant's claim should be accepted.

Upon review, the Federal Court found that the AAT had misapplied the standard of proof required for the claim. The court held that the AAT should have applied the balance of probabilities standard, not the higher standard of beyond reasonable doubt. Given the evidence presented, the court found that it was reasonable to hypothesise that the veteran's lung cancer was caused by his exposure to passive smoking and visible smoke haze during his service. Consequently, the court set aside the AAT's decision and substituted it with a determination that the applicant is entitled to a widow's pension from 6 August 2008.

Orders

Orders of the court

The decision under review is set aside and in substitution the Tribunal decides that the applicant is entitled to a widow's pension with effect from 6 August 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

28 September 2010	Senior Member Jill Toohey Dr John Campbell, Member
Background