MAVIS MAGILL Applicant And REPATRIATION COMMISSION Respondent - [2007] AATA 9

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 9
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/708

VETERANS' APPEALS DIVISION
)

Re MAVIS MAGILL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member and Dr G J Maynard, Member
Date9 January 2007
PlaceBrisbane

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

5. Of relevance to paragraph 8(1)(f) of the Act is Mr Magill’s condition of chronic bronchitis and emphysema which was accepted by the respondent under section 9 of the Act as being war-caused. That condition has also been variously described in the medical reports in evidence as chronic obstructive airways disease (COAD) and chronic obstructive pulmonary disease (COPD).
6. The standard of proof applicable to determining the relationship between operational service and death is set out in subsection 120(1) of the Act which reads:
120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

7.      The application of that provision is affected by the terms of subsections 120(3) and 120A(3) of the Act. Those provisions read:
120 (3)     In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)     that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person...
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.

Kind of Death
Standard of proof
8. The provisions noted above relate to matters of causation and require a consideration of the Statements…

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: [2007] AATA 9
Decision Date: 9 January 2007

CaseChat Overview and Summary

Mavis Magill applied for a determination that the death of her husband, a former member of the Royal Australian Navy, was attributable to his eligible war service. The Repatriation Commission dismissed the application, concluding that Mr Magill's death was not attributable to his service and did not arise out of it. The Federal Circuit Court considered whether the Tribunal had applied the correct legal principles in reaching its decision. The central issue was whether Mr Magill's death from pneumonia, which was linked to Huntington’s chorea, was attributable to his war service. The court had to determine if there was a reasonable hypothesis that Mr Magill's death was related to his service, as required under the relevant legislative provisions.

The court examined the evidence and found that while Mr Magill had service-related disabilities, including chronic bronchitis and emphysema, these conditions were not the cause of his death. Instead, his death resulted from pneumonia, which was associated with Huntington’s chorea. The court noted that the relationship between the veteran's death and his service was not established as required by the Statements of Principles. The Tribunal's conclusion that the death was not attributable to and did not arise out of Mr Magill’s eligible war service was affirmed, as the evidence did not support a connection between his service and the terminal event.

In affirming the Tribunal's decision, the court held that the Commission's assessment was correct. The evidence did not establish a reasonable hypothesis that Mr Magill's death was related to his war service. Therefore, the application was dismissed. The Federal Circuit Court upheld the Tribunal's decision, finding no error in its application of the law or its evaluation of the evidence.

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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