Hancock and Repatriation Commission - [2002] AATA 1227

DECISION AND REASONS FOR DECISION [2002] AATA 1227

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/412

VETERANS' APPEALS DIVISION          )
           Re      AILEEN PATRICIA HANCOCK
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J. A. Kiosoglous MBE

Date27 November 2002
PlaceAdelaide

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the veteran's death was war caused within the meaning of section 8 of the Veterans' Entitlements Act 1986.
  (signed)
  J. A. KIOSOGLOUS
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – whether death war-caused – veteran underwent operation for cancer – accepted condition of osteoarthrosis of knees – whether accepted condition hastened death – reasonable hypothesis.

Veterans' Entitlements Act 1986 ss.8, 120, 120A

Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Bey (1997) 47 ALD 481

REASONS FOR DECISION

27 November 2002 Senior Member J. A. Kiosoglous MBE

This is an application by Mrs Aileen Patricia Hancock (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 25 July 2000 (T2) which affirmed a decision of a delegate of the respondent dated 21 January 2000 (T28) rejecting the death of the applicant's husband Mr Francis William Hancock (the veteran) as war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 ("the Act").
The Tribunal received into evidence the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (T1-T34), together with five exhibits, three lodged by the applicant (Exhibits A1-A3) and two lodged by the respondent (Exhibits R1-R2). In addition the Tribunal heard evidence from Dr Bryan William Robert Betty, medical practitioner. The applicant was represented by Mr G. Hemsley, of Counsel, and the respondent by Mr G. Doube, a departmental advocate.
Issue
The issue before the Tribunal is whether or not the death of the veteran was due to war service pursuant to section 8 of the Act. In other words, the applicant is not entitled to a widow's pension unless the veteran's condition can be shown to have been war-caused.
History of the Application
The veteran was born on 4 April 1917 in Port Pirie, and served with the Australian Arny from 6 August 1940 until 8 March 1946 during which time he served outside of Australia and in the vicinity of the South Pacific. This whole period of service is deemed to constitute "operational service" under the Act.
The veteran died on 19 September 1999, aged 82 years. The death certificate (T5/57) lists the cause of death as being:
"small bowel adenocarcinoma 2 months".
On 11 November 1999 the applicant lodged a claim for pension in respect of the death of the veteran (T5/47-56) which was rejected by the respondent on 21 January 2000 (T28/159-165). The applicant applied to the VRB for review on 10 March 2000 (T30) and on 25 July 2000 the VRB affirmed the decision of the respondent (T2). The applicant was advised of this…

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 Hancock and Repatriation Commission

Details

AGLC: Hancock and Repatriation Commission [2002] AATA 1227
Case: [2002] AATA 1227
Decision Date: 27 November 2002

CaseChat Overview and Summary

The case of Hancock and Repatriation Commission involves a dispute over whether the death of a veteran, who underwent an operation for cancer and had an accepted condition of osteoarthrosis of the knees, was war-caused. The veteran's death was rejected by the respondent as war-caused, a decision which was affirmed by the Veterans' Review Board and subsequently reviewed by the Administrative Appeals Tribunal. The applicant argued that the veteran's osteoarthrosis of the knees, which was an accepted war-related condition, materially contributed to his death by causing immobility. The respondent contended that the veteran's death was due to his terminal cancer and that the war-related disabilities did not hasten his death.

The legal issues before the court were whether the veteran's death could be considered war-caused, and if the respondent had met the burden of proof to disprove that the war-related conditions hastened the veteran's death. The applicant submitted that a reasonable hypothesis had been raised that the war-related conditions contributed to the veteran's death, and that the respondent had failed to disprove this beyond reasonable doubt. The respondent argued that the evidence was insufficient to support the hypothesis and that the veteran's death was not war-caused.

The court found that the respondent had not met the burden of proof to disprove the hypothesis beyond reasonable doubt. The court held that the respondent's argument that the veteran was elderly, frail, and infirm was insufficient to meet the burden of proof. The court found that the death of the veteran was war-caused and set aside the decision of the respondent. The matter was remitted to the respondent for reconsideration in light of the finding that the veteran's death was war-caused.

The court's final orders were that the decision under review was set aside and the matter was remitted to the respondent for reconsideration in accordance with the direction that the veteran's death was war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 11 November 1999 the applicant lodged a claim for pension in respect of the death of the veteran (T5/47-56) which was rejected by the respondent on 21 January 2000 (T28/159-165). The applicant applied to the VRB for review on 10 March 2000 (T30) and on 25 July 2000 the VRB affirmed the decision of the respondent (T2). The applicant was advised of this decision in a letter dated 28 July 2000 (T3). An application for review was lodged with the Administrative Appeals Tribunal on 24 October 2000 (T1). Applicant's Evidence The applicant's evidence was provided to the Tribunal by way of submissions by Mr G. Hemsley and Dr B. W. R. Betty. Mr Hemsley in his submissions stated that the primary issue before the Tribunal is whether the veteran's death could be considered to be war-caused. In determining this he submitted that the Tribunal did not need to have recourse to the Statement of Principles (SOP). He submitted that osteoarthrosis of the left knee and osteoarthrosis of the right knee were both accepted as war disabilities. This was not disputed. He acknowledged that the condition of small bowel adenocarcinoma was not war-caused but that it was terminal. He further submitted that whilst a number of conditions are accepted disabilities and others are rejected conditions it was emphasised that the applicant's claim is that the knee conditions played a part in contributing to the veteran's death. He submitted that, even if the death was multi-factorial, a material contribution arose because of the veteran's inability to mobilise due to those accepted conditions. Mr Hemsley submitted that the primary cause of death was the adenocarcinoma but that it was the war-related disabilities that affected the veteran's ability to recover, namely the osteoarthrosis of both knees which caused him to be immobile. He also submitted that the VRB in arriving at its decision accepted that it was possible for the service-related osteoarthrosis to have played a role but decided that it did not. He further submitted that the applicant is not disputing that the overwhelming cause of the veteran's death was his primary and secondary cancer but that the accepted war disabilities of osteoarthrosis of the right knee and of the left knee were contributory towards his death. Mr Hemsley submitted, in relation to the applicant's knee condition, that the first reference to this appeared in historical records (T11/86) of 9 September 1982 wherein it was stated, inter alia:"Mr Potter (Orthopaedic Surgeon) reviewed Mr Hancock and thought he had early osteoarthritis of the knees, confirmed on x-ray, affecting primarily the patella-femoral joints and recommended physiotherapy, quadriceps exercises and intermittent use of anti-inflammatory agents." Dr Ali was not called to give evidence but a report of his dated 19 September 2001 (Exhibit R2) was tendered, which provided as follows:"Thank you very much for talking to me this afternoon at 2.15 pm about the report that you want me to submit about Mr Hancock. Mr Hancock has presented with blood in his bowel motions and had a total colonoscopy on account of this on 6.8.1999. This showed a large lesion in the caecum. Biopsies were taken. This was reported to be malignant. He was taken to theatre on 24.8.1999 and a right hemicolectomy plus a small bowel biopsy was performed. The tumour tissue was quite extensive. There were large metastatic deposits in the liver with approximately 60% of the liver mass being replaced by tumour tissue. There was multiple peritoneal seedlings in the pelvis. Post operatively he did poorly and reviewing the notes from the hospital I see that he had suffered a right-sided CVA and had also suffered osteoarthritis, which was accepted as a war related condition. However given the fact that post operatively he had suffered a cerebra vascular accident and was generally in a very poor state of health, it is a very difficult call to identify the pre-existing arthritis as a cause for a acceleration of his demise."

Decision

Reasons for decision

A reasonable hypothesis having been raised on the evidence before the Tribunal, the Tribunal finds that the respondent has failed to disprove the hypothesis beyond reasonable doubt. Leaving aside the respondent's submissions as to the reasonableness of the hypothesis raised, the evidence was scant. The respondent primarily submitted that the veteran was elderly, frail and infirm. The Tribunal finds that this is insufficient to meet the burden of proof imposed on the respondent by the Act. Consequently, the Tribunal finds that the death of the veteran was war-caused. Decision Accordingly, for the reasons outlined above the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the veteran's death was war caused within the meaning of section 8 of the Act. I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J. A. Kiosoglous MBE. Signed: (signed) John Howell, AssociateDate/s of Hearing 21 June 2002Date of Decision 27 November 2002Counsel for the Applicant Mr G. HemsleySolicitor for the Applicant Mr G. HemsleyCounsel for the Respondent Mr G. DoubeSolicitor for the Respondent Department of Veteran's Affairs

Ratio Decidendi

Legal Principle Established

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