Knight and Repatriation Commission - [2011] AATA 496

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 496
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5801

GENERAL ADMINISTRATIVE DIVISION )

Re Jacqueline Knight

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal
Mr R P Handley, Deputy President

Air Vice-Marshal (Dr) T K Austin AM, Member

Date19 July 2011
PlaceSydney

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Knight’s death was war-caused and Mrs Knight is granted a widow’s pension from 5 September 2006.

....................[sgd]......................
Mr R P Handley
Deputy President

CATCHWORDS
VETERANS’ AFFAIRS - Entitlement to widow’s pension ‑ veteran's death from myocardial infarction - operational service – defence service - ischaemic heart disease - exposure to environmental tobacco smoke during operational service - application of Statement of Principles ("SoP") – material pointing to reasonable hypothesis that veteran's death war-caused – exposure to visible tobacco smoke haze contributed to a material degree to the veteran’s death - decision under review set aside
RELEVANT ACTS
Veterans’ Entitlement Act 1986 (Cth): ss 13, 120, 196B
Safety, Rehabilitation and Compensation Act 1988 (Cth): s 4
CITATIONS
Re Knight and Repatriation Commission [2009] AATA 929
Knight v Repatriation Commission (2010) 52 AAR 547; [2010] FCA 1134
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Gilkinson v Repatriation Commission (2010) 118 ALD 547; [2010] FCA 1292
Comcare v Sahu-Khan (2007) 156 FCR 536; (2007) 44 AAR 523; [2007] FCA 15
OTHER AUTHORITIES
Statement of Principles Concerning Ischaemic Heart Disease No 89 of 2007 dated 19 June 2009
Statement of Principles Concerning Ischaemic Heart Disease No 90 of 2007 dated 5 September 2007
Amendment Statement of Principles Concerning Ischaemic Heart Disease No 43 of 2009 dated 19 June 2009
Amendment Statement of Principles Concerning Ischaemic Heart Disease No 96 of 2010 dated 27 October 2010
Amendment Statement of Principles Concerning Ischaemic Heart Disease No 44 of 2009 dated 19 June 2009
Amendment Statement of Principles Concerning Ischaemic Heart Disease No 97 of 2010 dated 27 October 2010
REASONS FOR DECISION

19 July 2011 Mr R P Handley, Deputy President
Air Vice-Marshal (Dr) T K Austin AM, Member

1.      Following a successful appeal in the Federal Court from the decision of the Tribunal in ReKnight and Repatriation Commission [2009] AATA 929, on 22 October 2010, Katzmann J ordered that the decision of the Tribunal dated 18 November 2009 be set aside and remitted to the Tribunal to be determined according to law: Knight v Repatriation Commission [2010] FCA 1134.
2.      The subject of the proceedings is Mrs Knight’s application for the review of a decision of the Veterans’ Review Board (VRB) affirming a decision of the Repatriation Commission to refuse her claim for a war widow’s pension under the Veterans’ Entitlement Act 1986 (the Act) following the death of her husband, Keith Knight.
BACKGROUND
3.      Mr Knight, who was born in…

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 Knight and Repatriation Commission

Details

AGLC: Knight and Repatriation Commission [2011] AATA 496
Case: [2011] AATA 496
Decision Date: 19 July 2011

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved Mrs Knight, who sought a widow's pension following the death of her husband, Mr Knight. The deceased had served in the Australian Defence Force and had died from a myocardial infarction. The central issue was whether Mr Knight's death was war-caused, specifically if his exposure to environmental tobacco smoke during his service materially contributed to his ischaemic heart disease. The Tribunal was required to determine whether this exposure met the criteria under the Veterans’ Entitlement Act 1986 and the relevant Statements of Principles concerning ischaemic heart disease.

The Tribunal needed to assess whether there was a reasonable hypothesis that Mr Knight's death was war-caused. This involved examining the evidence regarding his exposure to visible tobacco smoke haze during his operational service and how this exposure related to the ischaemic heart disease that ultimately caused his death. The Tribunal considered the relevant legislative provisions and the Statements of Principles, including the amendments, which outlined the criteria for establishing a war-caused link between service and disease. The Tribunal needed to determine whether the evidence supported a finding that Mr Knight's exposure to tobacco smoke haze contributed materially to his death.

The Tribunal concluded that the evidence presented a reasonable hypothesis that Mr Knight's death was war-caused. The Tribunal found that Mr Knight's exposure to visible tobacco smoke haze during his service materially contributed to his ischaemic heart disease, meeting the criteria set out in the Statements of Principles. The Tribunal set aside the previous decision and granted Mrs Knight a widow’s pension from 5 September 2006, recognising that Mr Knight’s death was war-caused.

The Tribunal's decision was based on a detailed analysis of the evidence and the applicable legal standards. The Tribunal found that the exposure to tobacco smoke haze during Mr Knight's service met the necessary criteria to establish a war-caused link to his ischaemic heart disease and subsequent death. This finding resulted in the substitution of the earlier decision, ensuring that Mrs Knight would receive the widow's pension from the relevant date.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes a decision that Mr Knight’s death was war-caused and Mrs Knight is granted a widow’s pension from 5 September 2006.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		Jacqueline Knight