LKFC and Repatriation Commission - [2008] AATA 535

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0217

VETERANS' APPEALS DIVISION )

Re LKFC

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member
Date26 June 2008
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
................[Sgd]...........................
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – war widow’s pension – whether death of veteran was war-caused – veteran died from neuroblastoma – satisfies statement of principles for malignant neoplasm of the brain – applicant not exposed to atomic radiation – statement of principles cannot be contradicted by scientific evidence – death of veteran was not war-caused – decision under review affirmed.
Veterans’ Entitlements Act 1986 ss8, 9, 13,120,196A, 196B, 120A.
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION

26 June 2008 Dr P McDermott, RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member

INTRODUCTION
1.      The applicant (whose name is subject to a confidentiality order) was a dependent of a veteran who served his country during World War II as a pilot with the Royal Australian Air Force. She has applied for a war widow’s pension. In these proceedings we have to decide whether the death of the late veteran was related to his service.
DECISIONS
2.      On 11 April 2007 a delegate of the Repatriation Commission rejected a claim by the applicant for war widow’s pension on the ground that the death of the veteran was not related to his service.
3.      The applicant sought a review of this decision from the Veterans’ Review Board. On 12 December 2007 the Veterans’ Review Board affirmed this decision.
4.       The applicant now seeks to review the decision of the Veterans’ Review Board.
SERVICE
5.      The late veteran rendered a period of service with the Australian Army from 12 August 1940 until 21 April 1943. The veteran also served with the Royal Australian Air Force from 22 April 1943 to 4 April 1946. A certificate of service of the veteran with the Royal Australian Air Force was in evidence before us[1].This service of the veteran with the Australian Army and the Royal Australian Air Force is certainly operational service for the purposes of the Act.
[1] Exhibit A: T4, Folio 3.
MEDICAL EVIDENCE OF DEATH OF THE VETERAN
6.      We are required to initially determine the “kind of death” that is applicable to the veteran[2].
[2] See Repatriation Commission v Hancock [2003] FCA 711.
7.      The death certificate records that the veteran died on 8 August 2001 at the age of 81 years. The death certificate records the causes of death as “neuroblastoma”[3].
[3] T4, fol 21.
8.      There is also specialist medical evidence that the veteran had a “tumour of the left temporal lobe, the size of a golfball” and that it was a “highly aggressive, poorly…

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 LKFC and Repatriation Commission

Details

AGLC: LKFC and Repatriation Commission [2008] AATA 535
Case: [2008] AATA 535
Decision Date: 26 June 2008

CaseChat Overview and Summary

The matter involved LKFC, the applicant for a war widow's pension, and the Repatriation Commission, the respondent. The dispute centred around whether the death of the veteran, who succumbed to neuroblastoma, was attributable to his war service. The case was heard by the Administrative Appeals Tribunal (AAT).

The central legal issues were whether the veteran's death from neuroblastoma met the criteria outlined in the statement of principles for malignant neoplasm of the brain, and if the statement could be contradicted by scientific evidence. Furthermore, the court needed to determine whether the veteran's death was caused by his war service, given that he was not exposed to atomic radiation.

The Tribunal found that the veteran's condition did satisfy the statement of principles for malignant neoplasm of the brain, but it was unable to be contradicted by scientific evidence. As the veteran had not been exposed to atomic radiation, the Tribunal concluded that the veteran's death was not attributable to his war service. Consequently, the Tribunal affirmed the decision under review, denying the applicant's claim for a war widow's pension.

The Tribunal's decision was based on the lack of exposure to atomic radiation, which was a necessary condition under the statement of principles. Therefore, the Tribunal upheld the Repatriation Commission's decision, and the applicant's claim for a war widow's pension was denied.

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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