Ford and Repatriation Commission - [2002] AATA 579

DECISION AND REASONS FOR DECISION [2002] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/190

VETERANS' APPEALS DIVISION       )
           Re      KEITHA MARY FORD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date12 July 2002
PlaceHobart

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent for determination in accordance with this decision.
  ..............................................
  Part-Time Member
CATCHWORDS
Veteran's Appeals – application lodged by widow of veteran - operational service – standard of proof – Statement of Principles – ischaemic heart disease – cause of death – whether ischaemic heart disease a contributing factor in the veteran's death.
Holthouse and Repatriation Commission (1982) 1 RPD 187
Repatriation Commission v Law (1981) 36 ALR 420
Doolette v Repatriation Commission (1980) 21 ALD 489

REASONS FOR DECISION

12 July 2002 Ms A F Cunningham (Part-time Member)

The applicant sought the review of a decision made by the Veterans' Review Board on 5 November 2001 which affirmed a decision of the Repatriation Commission dated 4 July 2000 determining that the death of Mr Collings Ford was not related to his war service.
The applicant is the widow of the late veteran, Collins Edward Ford.
At the hearing the applicant was represented by Mr R Webster and the respondent by Mr M Castle.
The only witness called was Dr Carolyn Ruth Stewart who had been the late veteran's general practitioner since late 1999. The T documents were tendered pursuant to the provisions of s37 of the Administrative Appeals Tribunal Act 1975.
The statement of facts and contentions lodged on behalf of the respondent stated that it agreed with the following paragraphs that appeared in the applicant's statement of facts and contentions:
(a)The applicant is the widow of Collings Edward Ford (the late vetran) who died on 24 May 2000.
(b)The late veteran served in the Royal Australian Air Force from 6 October 1943 to 28 March 1946 including service in New Guinea. His service therefore was operational service within the meaning of s6(1) of the Veterans' Entitlements Act 1986 ("the Act').
(c)On 13 June 2000 the applicant lodged a claim for pension under the Act on the ground that the operational service of the late veteran caused or contributed to this death.
(d)Because the late veteran had operational service the application is to be determined pursuant to s120(1) and (3) of the Act which provide that a claim will be upheld if there is a reasonable hypothesis connecting the death with service.
(e)By virtue of s120A of the Act because the claim by the applicant was lodged after 1 June 1994 the hypothesis can only be reasonable if it is upheld by a Statement of Principles determined under s196B(2) of the Act.
Mr Castle informed the Tribunal that the respondent also accepted that the late veteran's smoking habit was attributable to this service, and that the veteran's ischaemic heart disease was a consequence of his smoking habit. Mr Castle stated that what…

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 Ford and Repatriation Commission

Details

AGLC: Ford and Repatriation Commission [2002] AATA 579
Case: [2002] AATA 579
Decision Date: 12 July 2002

CaseChat Overview and Summary

The widow of a deceased veteran, Mrs Ford, filed an appeal against the Repatriation Commission's decision to deny her late husband's claim for a disability pension. The widow argued that the Commission's decision was erroneous because it failed to consider the veteran's ischaemic heart disease, which was allegedly caused by his operational service. The Full Bench of the Administrative Appeals Tribunal (AAT) was tasked with reviewing the decision.

The primary legal issue before the AAT was whether ischaemic heart disease was a contributing factor in the veteran's death, and whether this disease was related to his operational service. The AAT was required to determine whether the Repatriation Commission's decision to deny the claim was legally sound and whether the widow's appeal was justified. The AAT also needed to consider the relevant Statement of Principles and whether the veteran's ischaemic heart disease was covered by these principles.

The AAT found that the Repatriation Commission had erred in its assessment of the veteran's claim. The AAT held that ischaemic heart disease was a contributing factor in the veteran's death, and that it was likely related to his operational service. The AAT also found that the veteran's ischaemic heart disease was covered by the relevant Statement of Principles. As a result, the AAT allowed the widow's appeal and remitted the matter to the Repatriation Commission for reconsideration of the claim.

The AAT ordered that the Repatriation Commission reconsider the widow's claim for a disability pension, taking into account the AAT's findings that ischaemic heart disease was a contributing factor in the veteran's death and that it was likely related to his operational service. The AAT also ordered that the Repatriation Commission reconsider the claim in light of the relevant Statement of Principles, which covered the veteran's ischaemic heart disease.

Orders