MARGARET HAYNES and REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 521

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3715

VETERANS' APPEALS  DIVISION		)
Re		MARGARET HAYNES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)
Dr S H Toh (Part-Time Member)

Date13 July 2009

PlaceSydney

Decision The decision under review is affirmed.

[Sgd Ms A F Cunningham]

Senior Member

5. The standard of proof is that prescribed in section 120 of the VE Act.

6. In paragraph 2 above, the Tribunal has referred to the necessary pre-conditions for the claim. On the basis of the material contained in the documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T Documents), in accordance with section 120(4) the Tribunal can be reasonably satisfied as to these matters.

Kind of Death

7.      The next issue for determination is what was the "kind of death", that is the condition(s) from which the veteran was suffering that contributed to his death.  The veteran's "kind of death" has been defined as "the real or operative cause of death as opposed to the final stage of the process of dying" (Re Brown and Repatriation Commission [2003] AATA 1010 at para 6). The Tribunal in that decision referred to the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276 which said that the Tribunal must ascertain whether a particular illness or disease could fairly and properly be considered the cause of death. Emmett J in Collins v Repatriation Commission (2008) FCA 1982 said at para 21 that:

"The question of the kind of death met by a veteran is a question of medical causation of the death, although that might include contributing or underlying causes in a sense to which I have already referred".

8.      His Honour also recognised at paragraph 19 that there may be multiple medical conditions which cause a particular death and it is therefore necessary to consider all of the conditions for the purposes of determining whether a relevant Statement of Principles is applicable.  His Honour further stated:

"If one of the multiple medical conditions is a cause of death and that condition was itself caused by war service, then that may be sufficient to establish an entitlement to a pension (see Repatriation Commission v Hancock (2003) FCA 711 at 8)".

9.      In Re Hancock the primary medical condition that caused the veteran's death was stated on the death certificate as small bowel adenocarcinoma.  The evidence of the medical practitioner was that there may have been another medical cause being osteoarthritis of both knees that expedited the veteran's death.  As Selway J stated at paragraph 8:

"It was necessary that both of these be considered.  If one of these medical causes of death ("or kinds of death" to use the phrase in s120A(2)(4) of the Act) was itself caused by war-service then this would be sufficient to establish an entitlement to a pension.  So much is clear…