Lydia Needs and Repatriation Commission - [2014] AATA 143

[2014] AATA 143

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/3328

Re

Lydia Needs

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President P E Hack SC

Date 14 March 2014

Place Brisbane
The decision under review is affirmed.

......................[Sgd]..................................................
Deputy President P E Hack SC
Catchwords
VETERANS’ ENTITLEMENTS – dementia – whether war caused – whether moderate to severe cerebral trauma – whether external force.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 8(1), 13, 120A(3), 196B
CASES
Benjamin v Repatriation Commission [2001] FCA 1879; 34 AAR 270 at [54]
Collins v Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles, Instrument No. 22 of 2010 (as amended by Amendment Statement of Principles No 17 of 2014)
REASONS FOR DECISION
Deputy President P E Hack SC
14 March 2014

Mr George Needs died in March 2012 at the age of 90 years. Mr Needs was a veteran of World War II. He served in the Australian Army between December 1941 and March 1946. His service included service in the South Pacific which was operational service as that term is used in the Veterans’ Entitlements Act 1986 (Cth) (the VEA).
Mr Needs’ widow, Mrs Lydia Needs, lodged a claim for a war widow pension on 20 April 2012. On 6 June 2012 the Repatriation Commission refused the claim, deciding that the death of Mr Needs was not related to his service in the Australian Army. That decision was affirmed by the Veterans’ Review Board on 17 June 2013.
Mrs Needs seeks a review of that decision.
By virtue of s 13 of the VEA the Commonwealth is liable to pay pension by way of compensation to the dependants of a deceased veteran if the death of the veteran was “war-caused”. Section 8(1) of the VEA lists the circumstances under which the death of a veteran “shall be taken to have been war-caused”. That circumstance which is presently relevant is that in paragraph (b) namely,
… the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
Because Mr Needs’ service was operational service the claim must be answered favourably to Mrs Needs unless the Commission, or the Tribunal in its stead, is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death of Mr Needs was war-caused.[1] In the application of that standard the Commission, and the Tribunal, is to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Needs' death was war-caused if satisfied that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of any particular service rendered by him.[2]
[1]See s 120(1), VEA
[2]See s 120(3), VEA
The reasonableness of any hypothesis is to be assessed by reference to Statements of Principles determined by the Repatriation Medical Authority. The effect of s 120A(3) of…

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 Lydia Needs and Repatriation Commission

Details

AGLC: Lydia Needs and Repatriation Commission [2014] AATA 143
Case: [2014] AATA 143
Decision Date

CaseChat Overview and Summary

The case involves Lydia Needs, the widow of George Needs, a World War II veteran, who is seeking a war widow pension following her husband's death. The Repatriation Commission denied the claim, a decision that was subsequently upheld by the Veterans' Review Board. The core issue in this case is whether Mr Needs' death, which was attributed to Alzheimer-type dementia, was war-caused, specifically if the dementia was related to his service in the Australian Army.

The court had to determine if there was sufficient evidence to establish a reasonable hypothesis that Mr Needs' dementia was linked to his military service. The primary contention was whether the insulin shock therapy he received in 1958, which is alleged to have caused moderate to severe cerebral trauma, qualified as an instance of "external force" as defined in the relevant Statement of Principles. The court assessed the evidence and arguments presented by both parties to decide if the hypothesis could be deemed reasonable under the applicable legislation and principles.

The court concluded that while Mr Needs did suffer physiological disruption of brain function due to the insulin shock therapy, this did not constitute "external force" as defined in the Statement of Principles. The court found that the term "external force" should be interpreted in the context provided by the types of forces listed in the definition, and that the injection of insulin did not fall within this context. As a result, the hypothesis that Mr Needs' dementia was war-caused could not be considered reasonable. Therefore, the decision to deny the war widow pension was affirmed.

The final orders of the court affirm the decision of the Veterans' Review Board, upholding the Repatriation Commission's refusal to grant the war widow pension to Lydia Needs.

Orders