Henderson and Repatriation Comission - [2003] AATA 114

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 114
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/7

VETERANS' APPEALS DIVISION )

Re EILEEN HENDERSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K L Beddoe
Associate Professor J B Morley, RFD, Member
Date7 February 2003
PlaceBrisbane

Decision
The Tribunal decides:
(a)      the decision under review is set aside;
(b)      the death of Donald Lindsay Henderson was war caused; and
(c)       the date of effect of this decision is 26 September 1999.

(Sgd)       KL Beddoe
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – whether veteran’s death was caused by his defence service – whether reasonable hypothesis can be established
Veterans’ Entitlements Act 1986 s 6
REASONS FOR DECISION

7 February 2003 Senior Member K L Beddoe
Associate Professor J B Morley, RFD, Member

1.      A delegate of the respondent decided that the death of Donald Lindsay Henderson (the veteran) was not related to service. The Veterans’ Review Board subsequently affirmed that decision. The applicant sought review of the decision in this Tribunal.
2. The veteran was born on 29 July 1921 and enlisted in the Australian Army on 17 September 1940, commencing full-time duty on 15 December 1941. He served in Papua-New Guinea from December 1943 to May 1944 and was discharged from the Army in March 1946. There is no dispute that the veteran’s full time service is operational service within the terms of section 6A of the Veterans’ Entitlements Act 1986 (“the Act”).
3.      On 25 September 1999, the veteran died following an accident. The cause of his death was given as:
1(a)     Overwhelming sepsis
(b) Pneumonia
2         Renal insufficiency
           Dementia
Fractured neck of humerus (T4/23)

4.      The veteran’s only accepted war-caused disability was arthritis right knee attributed to injury of his knee while on service. There were two injuries, one during part-time service and a further injury during full-time service.
5. At the hearing Mr Harding appeared for the applicant and Mr Stoner represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and daughter of the applicant.
6.      The applicant first knew the veteran in 1946. She said, and we accept, that the veteran had trouble with his right knee from the time she first knew him. She said that the veteran attributed his “crook knee” to his Army Service; a proposition which the respondent has accepted, in that it accepted arthritis right knee as a war caused disability in 1947.
7.      The applicant’s evidence satisfied us that the veteran had a history of problems with his knee from the time of his discharge. She said he often had falls because of his knee, these becoming more frequent as he got older.
8.      In the year prior to his death an operation on the knee had made…

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 Henderson and Repatriation Comission

Details

AGLC: Henderson and Repatriation Comission [2003] AATA 114
Case: [2003] AATA 114
Decision Date: 7 February 2003

CaseChat Overview and Summary

The matter between Donald Lindsay Henderson and the Repatriation Commission came before the Administrative Appeals Tribunal. The dispute centred on whether Mr Henderson's death was attributable to his service in the defence forces. This determination was necessary to ascertain his eligibility for benefits under the Veterans’ Entitlements Act 1986. The Tribunal was tasked with assessing the evidence and applying the statutory criteria to decide if a reasonable hypothesis could be established linking Mr Henderson's death to his military service.

The primary legal issue was whether the veteran's death was caused by his defence service, as required by section 6 of the Veterans’ Entitlements Act 1986. The Tribunal examined the evidence presented and considered whether there was sufficient basis to conclude that a reasonable hypothesis could be formed. The evidence needed to demonstrate a causal connection between Mr Henderson's service and his death, and the Tribunal had to determine if such a connection met the statutory threshold. The focus was on the medical and service records, expert opinions, and any other relevant information that could substantiate the hypothesis.

After a thorough review of the evidence, the Tribunal found that there was a reasonable hypothesis that Mr Henderson's death was caused by his defence service. This conclusion was based on the medical evidence and the nature of his service. Consequently, the Tribunal set aside the decision under review and determined that Mr Henderson's death was war caused. The Tribunal also fixed the date of effect of this decision as 26 September 1999, ensuring that any entitlements accruing from this date would be calculated accordingly.

Orders

Orders of the court

The Tribunal decides:

(a) the decision under review is set aside;

(b) the death of Donald Lindsay Henderson was war caused; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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