[2014] AATA 571
Division Veterans' Appeals Division File Number
2013/5229
Re
Ida Palmer
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr M Denovan, Member
Date 15 August 2014 Place Brisbane The Tribunal affirms the decision under review.
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Dr M Denovan, Member
CATCHWORDS
VETERAN’S AFFAIRS – Pensions and benefits – Widow’s pension – Whether veteran’s death was war-caused – No causal connection between veteran’s service and his increased animal
fat consumption – Reasonable hypothesis test not satisfied – Decision under review affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) ss 120, 196B
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 12 ALD 389
Mason v Repatriation Commission [2000] FCA 1409Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning Malignant Neoplasm of the Prostate (No. 53 of 2014)
REASONS FOR DECISION
Dr M Denovan, Member
15 August 2014
INTRODUCTION
Walter Palmer (“the veteran”) was born in 1912 and served in the Australian Army during World War II from 18 December 1941 to 21 February 1946. As the veteran served outside Australia, the whole period of his war-time service is “operational service” in accordance with the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The veteran died on 9 April 1989 at the age of 77 years. The cause of death was certified as metastatic carcinoma and carcinoma of the prostate.
Mrs Ida Palmer, the veteran’s widow (“the applicant”), lodged a claim for pension, on the basis that the veteran's death was war-caused. The claim was refused by a delegate of the Repatriation Commission (“the respondent”) in a decision dated 5 February 2013. That decision was affirmed by the Veterans’ Review Board (“the VRB”) on 2 August 2013. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the VRB decision on 10 October 2013.
Mrs Palmer has advanced the hypothesis that her husband developed prostate cancer as a result of increasing his animal fat intake by at least 40% and to at least 50g a day, for at least 5 years of the 25 years prior to the clinical onset of the condition, as a result of his service.
The respondent contends that it is unlikely Mr Palmer consumed the requisite 50g of animal fat at any time, as he was reportedly an unwell man, and was advised to consume a low fat died in the 1950s and became emaciated. The respondent also contends that even if Mr Palmer did consume the requisite amount of animal fat, this was a matter of personal choice, and not related to his service.
ISSUES AND THE LAW
The relevant law is contained in the Act. The Tribunal is required to determine, on the balance of probabilities, whether the pre-conditions other than causation had been made out. Next, the Tribunal is required to determine on the balance of probabilities what ‘kind of death' the veteran suffered. This involves the identification, on the balance of probabilities, of any “kinds of death” which were…
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- Case
- [2014] AATA 571
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether there was a reasonable hypothesis that the veteran's service caused the increased consumption of animal fat, which then led to his death. This involved assessing the evidence provided and determining if it supported a causal link between the veteran's service and his dietary habits. The court had to apply the "reasonable hypothesis" test to ascertain if the hypothesis proposed by the applicant was plausible based on the evidence presented.
The court examined the evidence and concluded that there was no reasonable hypothesis linking the veteran's military service to his increased animal fat consumption. The evidence did not demonstrate a causal connection between his service and the dietary change, thereby failing to satisfy the reasonable hypothesis test. Consequently, the court affirmed the decision under review, denying the widow's pension claim.
The final orders of the court were to affirm the decision of the Repatriation Commission, thereby upholding the denial of the widow’s pension to Ida Palmer.
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Background
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Decision
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