Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 797
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0873
VETERANS' APPEALS DIVISION ) Re MURIEL IRWIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M Denovan, Member Date16 October 2009
PlaceBrisbane
Decision
The Tribunal sets aside the decision under review, and substitutes the decision that the death of the veteran was war-caused, and the Commonwealth is liable to pay pension to the applicant, with the date of effect being 2 September 2008.
..................[Sgd]............................
Member
CATCHWORDS
VETERANS’ AFFAIRS – claim for widow’s pension – operational service with Royal Australian Air Force – kind of death – whether veteran’s death was war-caused – decision under review set aside
Veterans’ Entitlements Act 1986 (Cth), ss 9, 120, 120A
East v Repatriation Commission (1987) 12 ALD 389
Byrnes v Repatriation Commission (1993) 177 CLR 564
Langley v Repatriation Commission [1993] FCA 299
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Hancock [2003] FCA 711
Elson v Repatriation Commission [2004] AATA 18
Repatriation Commission v Codd (2007) 95 ALD 619
Collins v Repatriation Commission [2009] FCAFC 90
REASONS FOR DECISION
16 October 2009 Dr M Denovan, Member INTRODUCTION
1. Joseph Irwin (“the veteran”) was born in 1915 and served in the Royal Australian Air Force during World War II from October 1942 to February 1946. As the veteran served outside Australia, the whole period of his war-time service is operational service in accordance with the Veterans’ Entitlement Act 1986 (“the Act”). The veteran died on 12 July 2007 at the age of 91 years. The cause of death was certified as bronchopneumonia, malabsorption, bowel resection, diverticular disease, Alzheimer's disease and atrial fibrillation. At the time of his death, the Repatriation Commission (“the Commission”) had only accepted liability for internal derangement of the left knee joint.
2. Mrs Muriel Irwin, the veteran’s widow (“the applicant”), lodged a claim for widow’s pension, on the basis that the veteran's death was war-caused. The claim was refused by a delegate of the Commission in a decision dated 5 March 2008. That decision was affirmed by the Veterans’ Review Board (“the VRB”) on 27 October 2008. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the VRB decision. (The appeal to this Tribunal was lodged out of time. An extension of time was subsequently granted by Deputy President Hack on 9 March 2009).
3. The applicant contends that the veteran’s accepted condition of internal derangement of the left knee joint reduced his mobility. This caused the veteran to fall regularly, resulting in him contracting bronchopneumonia, from which he died. The applicant further contends that medications the veteran consumed to treat the accepted condition caused diverticular disease, and this condition also contributed to his death.
ISSUES
4. The issues to be determined by the Tribunal are:
(a) the kind of death suffered by the veteran; and
(b) whether the veteran’s death was war-caused.
applicant’s case and evidence
5. Mr Malcolm Irwin (the veteran’s son)…
Continue reading MURIEL IRWIN and REPATRIATION COMMISSION
Sign in free to access the full text
- AGLC
- MURIEL IRWIN and REPATRIATION COMMISSION [2009] AATA 797
- Case
- [2009] AATA 797
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the veteran's death was caused by his operational service. The court had to determine if the death was attributable to the war service and whether it satisfied the criteria for a war-caused death under the Act. This required an assessment of the evidence presented, including medical reports and the circumstances surrounding the death, in light of relevant case law and statutory provisions.
The court found that the decision of the Repatriation Commission was flawed and did not properly consider the evidence. The Commission had failed to apply the correct legal standard when assessing the causation of the veteran's death. The court held that the veteran's death was indeed war-caused, as it was directly related to his service. Consequently, the decision under review was set aside, and a new decision was substituted, finding that the Commonwealth is liable to pay the pension to the applicant, effective from 2 September 2008.
The court ordered that the decision of the Repatriation Commission be set aside, and in its place, a decision be made that the veteran's death was war-caused. The Commonwealth was directed to pay the widow's pension to Muriel Irwin, effective from 2 September 2008.
Orders
Orders of the court
The Tribunal sets aside the decision under review, and substitutes the decision that the death of the veteran was war-caused, and the Commonwealth is liable to pay pension to the applicant, with the date of effect being 2 September 2008.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.