IVY HARRIS ApplicantAndREPATRIATION COMMISSIONRespondent - [2003] AATA 349

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] 349
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/310

VETERANS' APPEALS DIVISION
)

Re IVY HARRIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member
Date17 April 2003
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

.....................(Sgd).....................
IR Way
Member

3.       The applicant, the applicant’s daughter Janette Harris, Dr Love and Dr Powell gave oral evidence. The applicant was represented by Ms M Brennan of Counsel and the respondent by Mr M Smith, Departmental Advocate.
4. Under section 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act.
5.       The applicant is a widow of a veteran who rendered “operational service” as defined in subsections 5B and 6A of the Act, namely, continuous full-time service outside Australia during World War II.
6.       Mr Harris rendered operational service as he served with the Australian Army from 21 June 1941 to 13 November 1935, including service outside Australia in New Guinea.
7.       The veteran was born on 6 February 1915 and died on 16 May 1998 aged 83 years. The cause of the veteran’s death is recorded (at T4/17) as:
“1 (a) Dehyrdration, possible septicaemia and decubitus ulcers (1 week)
(b) Dementia (3 years)
2.        Fracture left hip (November 1997)”

8. At the time of his death the veteran had no service-related disabilities. His non-service-related disabilities were:
§Lumbar Spondylosis
§Chronic Solar Skin Damage
§Cervical Spondylosis
§Spondylolisthesis
§Chronic Solar Skin Damage
§Death

9. The applicant has raised the following hypothesis:
§The veteran developed a drinking habit because of his war-service.
§As a result of the veteran’s drinking habit and his regular consumption of alcohol, at an average level of 250g/week or more, the veteran suffered a cerebrovascular accident which led to the veteran suffering from dementia, this being the underlying cause of the veteran’s death.

Legislative Scheme
10. The question of whether the death of a veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression “war-caused”, the relevant part of section 8 provides:
“(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on…

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: [2003] AATA 349
Decision Date: 17 April 2003

CaseChat Overview and Summary

The applicant, Ivy Harris, applied to the Administrative Appeals Tribunal for a review of the Repatriation Commission’s decision to refuse her claim for a war widow’s pension. The central issue was whether the death of her late husband, a veteran, was caused by his war service. Ivy Harris argued that her husband’s dementia, which eventually led to his death, was connected to his service in the war. The Tribunal was tasked with determining if there was a reasonable hypothesis that linked the veteran's death to his war service, which would entitle her to the pension.

The primary legal issue revolved around establishing a causal link between the veteran’s war service and his death due to dementia. The Tribunal had to assess whether the dementia was caused by Alzheimer’s disease or a cerebrovascular accident, and whether there was a reasonable hypothesis connecting the cause of death to the veteran’s war service. The Tribunal considered the medical evidence and relevant authorities to determine if the connection between the war service and the death was sufficiently established.

In its reasoning, the Tribunal noted that for a war widow’s pension to be awarded, there must be a reasonable hypothesis linking the death to the war service. The Tribunal reviewed the evidence provided, including the medical reports and expert opinions. The Tribunal concluded that the evidence did not sufficiently establish a reasonable hypothesis connecting the veteran’s death to his war service. Consequently, the Tribunal affirmed the Repatriation Commission's decision to deny the claim for a war widow’s pension.

The Tribunal’s final order was to affirm the decision under review, denying Ivy Harris’ claim for a war widow’s pension. The reasoning was based on the lack of a reasonable hypothesis connecting the veteran’s death to his war service.

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

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Ratio Decidendi

Legal Principle Established

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