MYERS and REPATRIATION COMMISSION

Case [2010] AATA 710

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 710

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2716

VETERANS AFFAIRS  DIVISION )
Re HEATHER MYERS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date16 September 2010

PlaceCanberra

Decision The decision under review is affirmed.

................................[sgd]..............

Mr S. Webb, Member

CATCHWORDS

VETERANS ENTITLEMENTS – widow claim – kind of death - neoplasm of the prostate - consumption of animal fat - hypothesis connecting death with operational service not raised by whole of material - hypothesis of connection not reasonable hypothesis - decision affirmed

Veterans Entitlements Act 1986 ss 8, 13, 119, 120, 120A

Statement of Principles 28 of 2005

Byrnes v Repatriation Commission (1993) 177 CLR 564

Connors v Repatriation Commission (2000) 59 ALD 61

Critch v Repatriation Commission (1996) 43 ALD 574

Dunlop v Repatriation Commission [2003] FCAFC 201

East v Repatriation Commission (1987) 16 FCR 517

Jakab v Repatriation Commission [2007] FCA 898

Mason v Repatriation Commission [2000] FCA 1409

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Codd [2007] FCA 877

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Glanville [2010] FCA 405

Repatriation Commission v Hill [2002] FCAFC 192

Repatriation Commission v McKenna (1998) 28 AAR 7

Tunks v Repatriation Commission [2008] FCA 521

REASONS FOR DECISION

16 September 2010 Mr S. Webb, Member         

1.      The Applicant, Heather Myers, is the widow of William Myers, a veteran with operational service in the Royal Australian Navy (RAN) in World War 2. Mrs Myers claimed a service pension on the basis that her late husband’s death was war-caused. Her claim was rejected by the Repatriation Commission and on review by the Veterans Review Board. Mrs Myers is not happy with this result.

2.      I was informed at hearing that a number of matters were not in dispute:

(a)Mr Myers was born on 12 February 1926 and was raised by his parents on a farm at Bootle Park, Bittern in Victoria;

(b)he enlisted in the RAN and had operational service from 13 June 1944 to 27 August 1946, serving on the HMAS Lithgow from 27 October 1944 to 24 July 1946;[1]

(c)he married Mrs Myers on 16 February 1952 and she was his dependant;[2]

(d)he was diagnosed with “poorly differentiated adenocarcinoma of the prostate” on 24 August 1984;[3]

(e)on 19 May 1988 he claimed a disability pension;[4]

(f)he died on 5 December 1989.[5]

[1] T3.

[2] T12 folio 162.

[3] T12 folio 73.

[4] T12 folios 78 to 84.

[5] T12 folio 86.

Applying the reasonable satisfaction standard, these facts are established, and I so find.

3.      It is common ground that metastatic carcinoma and carcinoma of the prostate caused Mr Myers’ death. For the purposes of section 120A of the Veterans Entitlements Act 1986 (the Act),[6]  the ‘kind of death’ Mr Myers suffered was malignant neoplasm of the prostate.

4.      Thus, the issue to be…

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MYERS and REPATRIATION COMMISSION [2010] AATA 710
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[2010] AATA 710
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CaseChat Overview and Summary

The matter before the Federal Court of Australia involved a widow's claim under the Veterans Entitlements Act 1986 for benefits following the death of her husband, who had served in the military. The key issue was whether the husband's death from a neoplasm of the prostate, which was alleged to have been caused by his consumption of animal fat during his service, was related to his operational service. The Repatriation Commission had denied the claim, leading to an appeal by the widow. The central legal questions were whether the connection between the husband's service and his subsequent death was established on the balance of probabilities and whether the hypothesis presented by the widow was reasonable.

The court examined the evidence and submissions, considering the relevant statutory provisions and the Statement of Principles 28 of 2005. It reviewed prior case law, including Byrnes v Repatriation Commission, Connors v Repatriation Commission, and others, to assess the burden of proof and the standard of evidence required. The court concluded that the hypothesis connecting the husband's death with his military service was not substantiated by the entirety of the material before it. The evidence did not support a reasonable hypothesis that the husband's consumption of animal fat during his service was a contributing factor to his death from prostate cancer.

The court found that the hypothesis presented by the widow did not meet the necessary standard to establish a link between the husband's death and his service. The reasoning was based on the absence of sufficient evidence to support the hypothesis on the balance of probabilities. Consequently, the decision of the Repatriation Commission was upheld, and the widow's appeal was dismissed. The court affirmed the decision under review, meaning the widow's claim for veterans' benefits was denied.

Orders

Orders of the court

The decision under review is affirmed.

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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