Hammond and Repatriation Commission (Veterans’ entitlements) - [2015] AATA 723

Hammond and Repatriation Commission (Veterans’ entitlements) [2015] AATA 723 (17 September 2015)

Division

VETERANS’ APPEALS DIVISION

File Number

2014/4651

Re

Ivy Margaret Hammond

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Dr Gordon Hughes, Member

Date 17 September 2015

Place Melbourne
The Tribunal affirms the decision under review.

..........[sgd]..................................................
Dr Gordon Hughes, Member
VETERANS’ AFFAIRS – Claim for pension in respect of war-caused death – alternative possible causes of death – conflicting opinions of medical experts – burden of proof – standard of proof – decision affirmed
Legislation
Veterans’ Entitlements Act 1986 s 8, s 120(1), s 120(6)
Cases
Benjamin v Repatriation Commission [2001] FCA 1879
Collins v Repatriation Commission [2009] FCAFC 90
Doolette v Repatriation Commission [1990] 21 ALD 489
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
Dr Gordon Hughes, Member
17 September 2015

The applicant sought review of a decision by the Veterans' Review Board on 17 July 2014 affirming the Respondent's decision of 31 July 2013 to refuse her claim for the acceptance of the death of her husband as being due to war service.
Specifically, the Tribunal was required to determine whether Maurice Hammond’s death was war-caused. The veteran was suffering from a number conditions at the time of his death, and the question facing the Tribunal was whether one of those conditions – malignant melanoma, which the Repatriation Commission (the respondent) acknowledged was war-caused – was a contributing factor.
LEGISLATION
Section 8 of the Veterans' Entitlements Act 1986 (the Act) provides, relevantly:
(1) the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
Section 120(1) of the Act provides:
Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Section 120(6) of the Act provides:
Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
DISCUSSION
The applicant's husband died on 30 May 2013 at the age of 88 years.
He served in the Australian…

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.

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Details

Case: [2015] AATA 723
Decision Date: 17 September 2015

CaseChat Overview and Summary

The case of Hammond and Repatriation Commission (Veterans’ Entitlements) was heard by the Veterans’ Review Board, involving a claim for pension in respect of a veteran's death allegedly caused by war-related circumstances. The central dispute was whether the veteran's malignant melanoma, which was believed to have been caused by his military service, contributed to his death, or if there were other causes that might have played a role.

The primary legal issue that the court had to address was the burden of proof required to establish that the veteran's malignant melanoma was a contributing factor to his death. Given the conflicting opinions of two equally credible medical experts, the court needed to determine the appropriate standard of proof and how to weigh the evidence when faced with competing expert opinions. The court also needed to decide whether the observations and conclusions of the treating specialist should be given greater weight in this instance.

The court found that neither medical expert could definitively state that the veteran's malignant melanoma contributed to his death, and both acknowledged the possibility that it might have done so. The court concluded that the evidence did not establish, on the balance of probabilities or to the reasonable satisfaction of the Tribunal, that the melanoma was a contributing factor. The Tribunal considered that, in this case, some weight should be given to the observations and conclusions of the treating specialist. Consequently, the Tribunal affirmed the decision under review, upholding the initial determination that the claim for pension in respect of the veteran's death should not be granted.

ORDERS:
The Tribunal affirms the decision under review.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In weighing up the divergent opinions of two equally credible expert witnesses, the Tribunal simply cannot conclude that, on the balance of probabilities, or to its reasonable satisfaction (if that term implies a different standard of proof) the veteran’s malignant melanoma contributed to his death. It is possible that it did, but there is simply insufficient persuasive evidence to this effect. Neither witness could discount the possibility, but this does not render the scenario likely, or even more likely than not. The Tribunal is left with competing medical opinions with no logical basis for preferring one over the other, save that it considers that some weight should, in this instance, be given to the observations and conclusions of the treating specialist.DECISION For the above reasons, the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	VETERANS’ APPEALS DIVISION
File Number	2014/4651
Re	Ivy Margaret Hammond
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Dr Gordon Hughes, Member
Date	17 September 2015
Place	Melbourne