MARGARET HAYNES and REPATRIATION COMMISSION - [2010] AATA 555

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 555
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3715

VETERANS’ APPEALS DIVISION )

Re MARGARET HAYNES

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S E Frost, Senior Member
Dr I Alexander, Member
Date26 July 2010
PlaceSydney

Decision The decision under review is set aside, and in substitution the Tribunal decides that the Applicant is entitled to the war widow’s pension, with a date of effect of 27 November 2005.
...................[sgd]...........................
S E Frost
Senior Member

[14] T10-38

12.     The certificate explains that line (a) is to represent the “Disease or condition directly leading to death” and lines (b) to (e) the “Antecedent causes (morbid conditions, if any, giving rise to the abovementioned cause, stating the underlying condition last)”.
13.     Apart from the death certificate, we have expert reports prepared by Dr Russell J Butler for Mrs Haynes, and by Professor Michael O’Rourke for the Commission. Both experts also gave oral evidence in the original Tribunal hearing.
14.     Dr Butler said in his report, at page 4:
The death certificate attributes Mr Haynes’ death to an acute myocardial infarction of “sudden” duration, secondary to type 2 diabetes and hypertension, with cerebral vascular disease and chronic renal impairment as other significant conditions. I see no reason to question the accuracy of this certificate.

15. In oral evidence, Dr Butler said, in response to a question from Mrs Haynes’ counsel[15]:
MR VINCENT: So in terms of the part 1 of the death certificate, A, B and C represent a chain of events in effect going back in time?---Not necessarily a chain, in that the hypertension and the type II diabetes are not necessarily – the diabetes is not necessarily the consequence of the hypertension. Okay. These are co-existing conditions, rather than consequent conditions.
[15] Transcript (Tx) 46.45-47.2

16. He later confirmed to Mr O’Reilly, who appeared for the Commission in the original Tribunal hearing, that his report contained no other specific comment about the causes of the veteran’s death[16].
[16] Tx 50.11-12
17. Professor O’Rourke’s written report contained answers to specific questions put to him by the Commission’s representatives. It contained this:
1.Taking into account all of the material before you, and on the balance of probabilities, from what did Mr Haynes die? Is the death certificate an accurate reflection of the causes of death in this case?
Ans.I believe that the death certificate is an accurate reflection of the causes of death in this case. ...
...
7.Did [hypertension] play an integral part in Mr Haynes’ “kind of death”[?]
Ans.Yes, I believe that the hypertension contributed to Mr Haynes’ deterioration from the cardiac and cerebral point of view. I think it was an integral part of the heart failure and the presumed arrhythmia from which Mr Haynes died.
...
14.Did [diabetes] play an integral part in Mr Haynes’ “kind of death”?
Ans.The disease did I believe play an integral part in Mr Haynes’…

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: [2010] AATA 555
Decision Date: 26 July 2010

CaseChat Overview and Summary

Margaret Haynes, the applicant, sought a review of a decision by the Repatriation Commission, the respondent, which denied her entitlement to a war widow’s pension. The dispute centred on whether the applicant's late husband's death from ischaemic heart disease was related to his operational service during his military career. The case was heard and determined by the Federal Court of Australia.

The primary legal issues the court had to address were whether the applicant's late husband's death was related to his service, and if the ischaemic heart disease could be considered a service-related illness. The court also had to determine if the husband's smoking habit, which was a contributing factor to his heart disease, should exclude him from receiving a war widow’s pension. The court examined relevant statutory provisions and judicial precedents to resolve these issues.

In its decision, the court found that the applicant's late husband's ischaemic heart disease was related to his service, despite his smoking habit. The court held that smoking alone did not disqualify the husband from having his death considered service-related. The court also noted that the evidence showed a connection between his service and the heart disease, which ultimately led to his death. Based on this reasoning, the court set aside the decision of the Repatriation Commission and determined that the applicant was entitled to the war widow’s pension, effective from 27 November 2005.

The court's final order was to set aside the decision under review and to substitute a new decision that the applicant is entitled to the war widow’s pension, with a date of effect from 27 November 2005. This decision provides the applicant with the pension she sought, recognising the service-related nature of her late husband's death.

Orders

Orders of the court

The decision under review is set aside, and in substitution the Tribunal decides that the Applicant is entitled to the war widow’s pension, with a date of effect of 27 November 2005.

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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