Gardiner and Repatriation Commission - [2007] AATA 1330

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1330
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1006

VETERANS’ APPEALS DIVISION )

Re PAULINE GARDINER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M. D. Allen, Senior Member
Dr M. E. C. Thorpe, Member
Date17 May 2007
PlaceSydney

Decision Decision under review is affirmed.
.................[sgd].............................
M. D. Allen
Senior Member

CATCHWORDS
VETERANS’ ENTITLEMENTS – claim for war widows’ pension – question of what “kind of death” was suffered – whether “kind of death” was war-caused – whether reasonable hypothesis connecting veteran’s injury with war service – veteran involved in tractor accident – whether death from tractor accident attributable to war-cause lumbar spondylosis – lack of reasonable hypothesis – decision under review affirmed
Veterans’ Entitlements Act 1986 sections 5C, 6A, 8, 120
Hayes v the Repatriation Commission [2005] FMCA 125- distinguished
Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152
REASONS FOR DECISION

17 May 2007 M. D. Allen, Senior Member
Dr M. E. C. Thorpe, Member

1.      On 10 August 1975 Malvin Ernest Gardiner died when the tractor he was driving overturned, pinning him face down in the ground causing asphyxiation. In these proceedings the deceased’s widow seeks to have the death of her late husband attributed to his war service.
2. There is no dispute that the deceased was a veteran who had operational service as those terms are defined in sections 5C and 6A respectively of the Veterans’ Entitlements Act 1986 (“VEA”). The issue before this Tribunal was whether a reasonable hypothesis had been raised connecting the death of the deceased with the circumstances of his war service, and if so, whether any of the facts supporting that hypothesis had been negatived beyond a reasonable doubt.
3. As the deceased had operational service the standard of proof in this matter is that mandated by subsections 120(1) and (3) of the VEA, whereas subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.
4.      The Applicant’s case was that the deceased, because of his war service, suffered from lumbar spondylosis and that he was so restricted in movement by his lumbar spondylosis that when the tractor he was driving “rolled” he was unable to jump clear and so became pinned underneath the overturned tractor and suffocated.
5.      A post mortem was conducted on the deceased and the cause of death stated as “asphyxia due to cerebral concussion”.
6.      As to the circumstances leading to the death of the deceased, no witnesses were present but the report of death to the Coroner stated:
At about 9.45am on the 10th August, 1975 the deceased left his residence on a Massey Ferguson tractor, carrying a disc plough on a three point linkage. He travelled down Sandy, a distance of about 1km to a property which is owned by the deceased. It would appear that at about 10am the deceased went to cross a makeshift bridge, across a deep narrow gully on…

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 Gardiner and Repatriation Commission

Details

AGLC: Gardiner and Repatriation Commission [2007] AATA 1330
Case: [2007] AATA 1330
Decision Date: 17 May 2007

CaseChat Overview and Summary

The applicant, Gardiner, sought a war widow’s pension from the Repatriation Commission. The dispute centred on the interpretation of the term “kind of death” in the Veterans’ Entitlements Act 1986, specifically whether the death of the veteran, who died in a tractor accident, was attributable to a war-related injury. The matter was heard in the Federal Court of Australia.

The primary legal issue was whether there was a reasonable hypothesis linking the veteran’s lumbar spondylosis, which was caused by war service, to his death in the tractor accident. The court had to determine if the veteran’s lumbar spondylosis contributed to his death in a manner that could be considered a “kind of death” war-caused. This involved examining if the injury was a substantial contributing factor to the death in a manner that could be reasonably hypothesised.

The court found that there was no reasonable hypothesis connecting the war-caused lumbar spondylosis to the death from the tractor accident. The court distinguished Hayes v the Repatriation Commission, noting that the situation in Hayes involved a more direct causal link between the war injury and the death. The court also considered the reasoning in Caswell v Powell Duffryn Associated Collieries Limited, which emphasised the need for a reasonable hypothesis. Given the lack of a substantial connection between the veteran’s lumbar spondylosis and the tractor accident, the court affirmed the decision under review, denying the claim for a war widow’s pension.

The Federal Court affirmed the decision of the Repatriation Commission, rejecting the claim for a war widow’s pension.

Orders

Orders of the court

Decision under review is affirmed.

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.