HICKS and REPATRIATION COMMISSION

[2010] AATA 327

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 327

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3609

VETERANS' APPEALS  DIVISION		)
Re		SYLVIA HICKS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M.D. Allen, Senior Member
Dr M.E.C. Thorpe, Member

Date5 May 2010

PlaceSydney

Decision The decision under review is AFFIRMED.

.................[sgd]..........................

M. D. Allen, Presiding Member  

CATCHWORDS

VETERANS’ ENTITLEMENTS:  Widows claim.  Hypothesis that the deceased’s Ischaemic Heart Disease was caused by clinically significant depressive disorder.  Statement of Principles for Depressive Disorder not met.  As sub-hypothesis not reasonable, major hypothesis not reasonable.  Decision refusing claim AFFIRMED.

LEGISLATION

Veterans’ Entitlements Act 1986 Ss 6A, 120, 120A

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Owens (1996) 70 ALJR 904

McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

5 May 2010 M.D. Allen, Senior Member
Dr M.E.C. Thorpe, Member           

1.      By application made 7 August 2008, the Applicant sought review of a decision by the Respondent that the death of her late husband, Albert Edwin HICKS was not war-caused.

2.      The deceased died on 19 October 2006 and there was no dispute in these proceedings that the cause of the deceased’s death was a coronary occlusion as a result of his Ischaemic Heart Disease (“IHD”).

3. As the deceased had operational service as that term is defined in Section 6A of the Veterans’ Entitlements Act 1986 (“VEA”), the standard of proof in this matter is that mandated by subsections 120(1) and (3) VEA.

4. Subsections 120(1) and (3) VEA provide that the death of a Veteran shall be accepted as being war-caused, unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the Veteran with the circumstances of the service rendered by him. Pursuant to section 120A VEA a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority (“RMA”).

5. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.

6. The method the Tribunal must adopt in applying the provisions of any SoP issued pursuant to section 120A to the standard of proof mandated by subsections 120(3) and (1) VEA was set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 @ viz:

(a)All the material which is before the decision maker must be considered and determined as to whether the material points to a reasonable hypothesis connecting the death with the particular service rendered.  No finding of fact arises at this stage.  If no hypothesis arises the application must fail. 

(b)If a hypothesis is raised…