JACQUELINE LAYTON and REPATRIATION COMMISSION - [2013] AATA 37

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/3541

Veterans' Appeals Division )
Re: Jacqueline Layton

Applicant
And: Repatriation Commission
Respondent
CORRIGENDUM
TRIBUNAL:             Dr P McDermott, RFD, Senior Member
DATE:   6 February 2013
PLACE:                  Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
Insert the word “are” before “available” in paragraph 108.

...................................................................
Senior Member
[2013] AATA 37

Division VETERANS' APPEALS DIVISION

File Number

2011/3541

Re

JACQUELINE LAYTON

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

Decision

Tribunal
Dr P McDermott, RFD, Senior Member

Date 25 January 2013

Place Brisbane
I set aside the decision under review and make a decision in substitution for that decision so set aside. A decision is made that Jacqueline Layton is entitled to a widow’s pension. The date of effect of my decision is 17 August 2009.
........................................................................
Dr P McDermott, RFD, Senior Member
Catchwords
VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Death of veteran – Operational service – Ischeamic heart disease – Statement of Principles – Posttraumatic stress disorder factor – DSM-IV-TR Diagnostic Criteria – Four step procedure for determining whether death was war caused – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war caused – Decision under review set aside and substituted
Legislation
Veterans' Entitlement Act 1986 (Cth) ss 6A, 7, 8, 13, 14, 119, 120, 196A, 196B
Cases
Benjamin v Repatriation Commission (2001) 70 ALD 622

Border v Repatriation Commission [2010] FCA 264
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission (2009) 258 ALR 204
East v Repatriation Commission (1987) 16 FCR 517
Gilbert v Repatriation Commission (1989) 86 ALR 713
Harris v Repatriation Commission (2000) 62 ALD 174
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Budworth (2001) 16 FCR 200
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 147 CLR 635
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Warren (2007) 95 ALD 606

Repatriation Commission v Warren (2008) 246 ALR 279
Secondary Materials
Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, Text Revision, American Psychiatric Association

Statement of Principles (Instrument No 89 of 2007) as amended by Instrument 43 of 2009 and Instrument No 96 of 2010
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION

Jacqueline Layton (the applicant) was a dependent of the late Reginald Joseph Layton (the veteran) who in World War II served with the Australian Army in New Guinea. The applicant has applied for a war widow’s pension. I have to decide whether the death of the late veteran was related to his service.
background
On 17 November 2009, the applicant made her claim for a war widow’s pension. On 3…

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: [2013] AATA 37
Decision Date

CaseChat Overview and Summary

Jacqueline Layton, the applicant, is seeking a war widow's pension following the death of her husband, Reginald Joseph Layton, a veteran who served in World War II. The Repatriation Commission previously rejected her claim, asserting that the veteran's death was not related to his service. This decision was upheld by the Veterans' Review Board, prompting the applicant to seek further review from the Tribunal. The central legal issue before the Tribunal was whether the death of Reginald Layton was related to his war service, thus qualifying his widow for a pension under the Veterans' Entitlements Act 1986 (Cth). The Tribunal had to determine if the veteran's death, specifically due to ischaemic heart disease, arose out of or was attributable to his eligible war service.

The Tribunal examined the available evidence and found that the veteran's death certificate listed myocardial infarction and atherosclerosis as causes of death, with the latter condition being a form of ischaemic heart disease. Given that ischaemic heart disease is covered under the relevant Statement of Principles, the Tribunal proceeded with the Deledio four-step process to evaluate the claim. The first step involved considering whether the available material suggested a hypothesis linking the veteran's death to his service. The Tribunal found that such a hypothesis existed. The second step required verifying if there was a relevant Statement of Principles in effect, which was confirmed to be the case. The third step involved assessing whether the hypothesis was reasonable, and the Tribunal found it to be consistent with the criteria set out in the Statement of Principles. The final step was to determine if the Tribunal was satisfied beyond reasonable doubt that the death was not war-caused. The Tribunal concluded that it was not so satisfied, leading to the decision that Jacqueline Layton is entitled to a widow's pension.

Based on the findings, the Tribunal set aside the previous decisions and ruled that Jacqueline Layton is entitled to a war widow's pension, effective from 17 August 2009. The decision hinged on the acceptance that the veteran's ischaemic heart disease was connected to his war service, thereby fulfilling the statutory criteria for a war-caused death under the Veterans' Entitlements Act 1986 (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Jacqueline Layton (the applicant) was a dependent of the late Reginald Joseph Layton (the veteran) who in World War II served with the Australian Army in New Guinea. The applicant has applied for a war widow’s pension. I have to decide whether the death of the late veteran was related to his service.background On 17 November 2009, the applicant made her claim for a war widow’s pension. On 3 February 2010, a delegate of the Repatriation Commission rejected the claim on the ground that the death of the veteran was not related to his service. The applicant sought a review of this decision from the Veterans’ Review Board (VRB) which, on 5 July 2011, affirmed the decision. The applicant now seeks review of that decision by this Tribunal.SERVICE During World War II the veteran served in the Australian Army. It is not in dispute that he rendered “eligible war service” in the form of operational service from 6 March 1941 until 1 February 1946.[1] [1] As defined by ss 7 and 6A of the Act. LEGISLATIVE FRAMEWORK Section 8 of the Veterans’ Entitlement Act 1986 (Cth) (the Act) provides for when the death of a veteran is taken to be war-caused. The provision applies where, relevantly under sub 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”. Subsection 13(1)(c) of the Act provides, relevantly, that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants. Subsection 14(1) of the Act provides for a dependant of a deceased veteran to make a claim for a pension. Section 11 provides for a dependant to include a “widow”. Section 5E defines a “widow” to be a woman who was a partner of the person immediately before his death. It is not in dispute that the applicant was a dependant of the veteran. As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying subs 120(1) and 120(3) of the Act. Subsection 120(1) of the Act provides that where a claim for a pension:in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Subsection 120(3) of the Act also provides thatIn applying subsection 120 (1) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a) that the injury was a war-caused injury or a defence-caused injury;(b) that the disease was a war-caused disease or a defence-caused disease; or(c) that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.STATEMENT OF PRINCIPLES

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I express my appreciation to the respondent for obtaining what records of the service of the veteran available.DECISION I set aside the decision under review and make a decision in substitution for that decision so set aside. A decision is made that Jacqueline Layton is entitled to a widow’s pension. The date of effect of my decision is 17 August 2009.

Ratio Decidendi

Legal Principle Established

The first cause of death is described as “immediate” and the second cause of death is described as “years”. Because one of the veteran's “cause of death” was certified as being atherosclerosis (which come within the definition of ischaemic heart disease cl 3(b) of Statement of Principles (Instrument No 89 of 2007 as amended by Instrument 43 of 2009 and Instrument No 96 of 2010), it is accepted (and I find) that the veteran’s kind of death was ischaemic heart disease. It has been held that there may be more than one cause of death: see Repatriation Commission v Law[4] and Collins v Repatriation Commission.[5] [4] (1980) 147 CLR 635.[5] (2009) 258 ALR 204 at [51].CONSIDERATION The claim of the applicant is based upon Statement of Principles (Instrument No 89 of 2007 as amended by Instrument 43 of 2009 and Instrument No 96 of 2010) for Ischaemic Heart Disease. In this case there is no preliminary issue whether the cause of death of the veteran was ischaemic heart disease. The death certificate records that the cause of death was myocardial infarction and atherosclerosis and that the veteran had suffered from the latter condition for some years. My task is different from that considered in some cases where there was a preliminary issue whether there could be reasonable satisfaction that a veteran suffered from a particular disorder before applying the Statement of Principles for that disorder. As I have found that the veteran suffered from ischaemic heart disease, the applicant is entitled to have her claim determined in accordance with the Statement of Principles (Instrument No. 89 of 2007 as amended by Instrument No 43 of 2009 and Instrument No 96 of 2010) for Ischaemic Heart Disease and the Repatriation Commission v Deledio[6] (Deledio) four-step process.[7] [6] (1998) 83 FCR 82 at 82-83.[7] Repatriation Commission v Budworth (2001) 16 FCR 200 at [19]; Repatriation Commission v Bawden [2012] FCAFC 176 at [40]. In Deledio, the Full Court of the Federal Court of Australia, at 82-83, provided guidance on the four steps which I must consider:(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a Statement of Principles (SoP) determined by the Authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. (iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. (iv) The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.Step 1 of Deledio

Division	VETERANS' APPEALS DIVISION
File Number	2011/3541
Re	JACQUELINE LAYTON
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Dr P McDermott, RFD, Senior Member
Date	25 January 2013
Place	Brisbane