Gittins and Repatriation Commission - [2006] AATA 453

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 453
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/839
VETERANS' APPEALS DIVISION

Re: PATRICIA ANN GITTINS
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:25 May 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan
Member

VETERANS' AFFAIRS – widows' pension – veteran’s death due to non‑Hodgkin's lymphoma – fear or phobia of doctors and hospitals leading to delay in diagnosis and treatment – fear or phobia claimed to be due to the veteran’s medical treatment and hospitalisation in Japan – operational service – no Statement of Principles for fear or phobia
Veterans' Entitlements Act 1986
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cooke v Repatriation Commission (1997) 45 ALD 205
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1981) 147 CLR 635
REASONS FOR DECISION
25 May 2006  Miss E.A. Shanahan, Member
1.      The applicant, Mrs Patricia Ann Gittins, lodged a claim on 16 October 2002 for a widow's pension following the death of her husband, Philip George Gittins on 25 July 1997 from a low grade non‑Hodgkin's lymphoma. Mrs Gittins applied to the Veterans’ Review Board (VRB) for review of the respondent's decision on 19 November 2002. On 20 May 2004 the VRB affirmed the respondent's decision.
2.      The veteran served in the Australian Army from 14 July 1949 until 2 December 1971. He had operational service in Japan from 9 July 1953 until 24 July 1955. While his operational service was in the same period as the Korean War, there is no record that Mr Gittins ever served in Korea.
3. Mrs Gittins' application for review by this Tribunal is based on the hypothesis that as a result of the veteran’s fear or phobia of doctors and hospitals, arising from his experiences in Japan, he failed to obtain and receive adequate and appropriate treatment for his lymphoma. Thus his death was war‑caused within the provisions of s 8 of the Veterans' Entitlements Act 1986 (the Act).
4.      Mrs Gittins had no knowledge of her husband's illnesses and treatment in Japan, as they had met in 1959 and married in 1960. Her late husband had told her very little about his service in Japan, as he refused to discuss it (trans p12), but she had overheard his conversations with male friends. While Mr Gittins had never discussed his periods of hospitalisation in Japan with Mrs Gittins, he had repeatedly stated that doctors are butchers (trans p15), and hence his refusal to seek medical attention.
5.      It would appear, and the Tribunal has no reason to doubt the second‑hand reports, that Mr Gittins experienced a traumatic childhood. His father, stepmother and half brother were killed by the Japanese in the invasion of Singapore in 1942 (T2 p xvi) and Mr Gittins had been required to identify the…

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 Gittins and Repatriation Commission

Details

AGLC: Gittins and Repatriation Commission [2006] AATA 453
Case: [2006] AATA 453
Decision Date: 25 May 2006

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, Miss E.A. Shanahan, Member, reviewed a decision of the Veterans’ Review Board which dismissed an application for a widow’s pension by Patricia Ann Gittins, the widow of Philip George Gittins. Mr Gittins had died from non-Hodgkin’s lymphoma on 25 July 1997. Mrs Gittins’ application for a widow’s pension was based on the hypothesis that her husband’s death was war-caused as a result of his fear or phobia of doctors and hospitals which had led him to delay any treatment until his condition was in an advanced stage. The Tribunal found that the hypothesis raised by Mrs Gittins was not reasonable as, on all the facts before it, any connection between Mr Gittins’ death in 1997 from non-Hodgkin’s lymphoma and his experiences while hospitalised in Japan in 1954 and 1955 were too remote and too tenuous. The Tribunal affirmed the decision under review.

Orders