Kuhn and Repatriation Commission (Veterans' entitlements) - [2023] AATA 536

Kuhn and Repatriation Commission (Veterans' entitlements) [2023] AATA 536 (28 March 2023)
Division: GENERAL DIVISION

File Number(s): 2020/3297
Re:Glenda Kuhn
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Sosso
Date:28 March 2023
Place:Brisbane

The decision under review is set aside and substituted with a decision that the Applicant is entitled to a war widow’s pension pursuant to section 13 of the Veterans’ Entitlements Act 1986.
...................[Sgd].....................................................
Deputy President Sosso
Catchwords

VETERANS’ ENTITLEMENTS — War widows’ pension — Operational service — Veteran killed while in a plane crash — Hypothesis that veteran’s service-caused PTSD contributed to plane crash — Standard of reasonable hypothesis applies — material pointing to a connection between PTSD and service— Hypothesis reasonable — Whether veteran’s death resulted from serious default or wilful act on his part — No evidence of a wilful act — Decision under review set aside and substituted.
Legislation

Veterans’ Entitlements Act 1986 (Cth)
Crimes (Aircraft) Act 1963 (Cth)
Cases
Boral Resources v Pyke (1989) 93 ALR 89
Bushell v Repatriation Commission (1992) 175 CLR 408
Bull v Repatriation Commission [2011] FCA 1832
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission (2009) 177 FCR 280
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Forrester v Repatriation Commission [2013] 16 FCR 898
Hardman v Repatriation Commission [2005] FCAFC 83
Hill v Repatriation Commission (2009) 177 FCR 434
Lynch and Repatriation Commission (1988) 8 AAR 240
McClure and Repatriation Commission [2000] AATA 292
McLean v Repatriation Commission [2001] FCA 243
McPherson v Repatriation Commission [1989] FCA 84
Nelson and Repatriation Commission [1988] AATA 148
Onorato v Repatriation Commission [2011] FCA 1507
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Codd (2007) 95 ALD 619
Repatriation Commission v Law (1981) 147 CLR 635
Russell v Commonwealth [1999] VSC 437
Ryan and Repatriation Commission [2010] AATA 230
Willman v Repatriation Commission [2007] AATA 1480
Woodward v Repatriation Commission [2003] FCAFC 160
Secondary Materials
Statement of Principles No. 97 of 2022 – Posttraumatic Stress Disorder
Civil Aviation Safety Regulation 1998
REASONS FOR DECISION
Deputy President Sosso
28 March 2023
1. Ms Glenda Kuhn (the Applicant) seeks a review of a decision of the Veterans’ Review Board (the Board) of 17 March 2020 which affirmed a decision of a Delegate of the Repatriation Commission (the Respondent) dated 3 September 2019 that the death of the Applicant’s husband, Mr Anthony Francis Kuhn (the veteran) was not war-caused and that, accordingly, a war widow’s pension was not payable to her.
2. The veteran was born in January 1949 and served in the Royal Australian Airforce (RAAF) from 15 April 1966 until 15 April 1971. The veteran rendered operational service in South Vietnam from 20 April 1968 until…

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: [2023] AATA 536
Decision Date: 28 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Mr. Kuhn concerning a war widow's pension following the death of his late wife, a veteran. The dispute centred on whether the veteran's death, which occurred in a plane crash, was attributable to her service, specifically a hypothesised contribution from service-caused Post-Traumatic Stress Disorder (PTSD). The AAT was tasked with determining if the standard of a reasonable hypothesis applied to the connection between the veteran's PTSD and the crash, and if the veteran's death resulted from a serious default or wilful act on her part.

The Tribunal's reasoning focused on the application of the "reasonable hypothesis" standard, which is applicable in determining whether a condition is service-related for the purposes of veterans' entitlements. Deputy Sosso P found that there was material pointing to a connection between the veteran's PTSD and her service. Crucially, the Tribunal determined that the hypothesis that her service-caused PTSD contributed to the plane crash was reasonable. Furthermore, the AAT found no evidence to suggest that the veteran's death resulted from a serious default or wilful act on her part.

Consequently, the AAT set aside the previous decision under review and substituted it with a new decision. The outcome was that the veteran's death was accepted as being attributable to her service, thereby entitling Mr. Kuhn to a war widow's pension.

Orders