Norma Allison and Repatriation Commission - [2014] AATA 48

[2014] AATA 48

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/2170

Re

Norma Allison

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms N Bell, Senior Member

Date 31 January 2014

Place Sydney
The decision under review is affirmed.

..........[Sgd]..............................................................
Ms N Bell, Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – malignant neoplasm of the colorectum – whether reasonable hypothesis that Veteran's condition related to service – standard of reasonable satisfaction - decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) s 120
CASES
East v Repatriation Commission (1987) 16 FCR 517, (1987) 12 ALD389

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles No 37 of 2013

Repatriation Medical Authority, Statement of Principles No 39 of 2011
Repatriation Medical Authority, Statement of Principles No 1 of 2004
I Boileau, J Assad et al, ‘Alcohol Promotes Dopamine Release in Human Nucleus Accumbens’ in Synapse (2003) 49, 226-231.
V Vengeliene et al, ‘Neuropharmacology of Alcohol Addiction’, British Journal of Pharmacology (2008) 154, 299-315.
J Nordqvist, 'Just the Taste of Alcohol Triggers Dopamine Release', Medical News Today, 16 April 2013.

REASONS FOR DECISION
Ms N Bell, Senior Member
31 January 2014

Neil Allison served in the Royal Australian Air Force from 25 September 1943 to 20 December 1945. There is no dispute that the whole of his service was operational service.
Mr Allison died on 25 August 2010. Before his death, Mr Allison made a claim for pension in respect of the condition of malignant neoplasm of the colorectum. This claim was refused in July 2010. Mrs Allison, as her late husband’s legal representative, sought a review of the decision by the Veterans’ Review Board in January 2011. The decision was affirmed by the Board.
ISSUES
In considering the relationship to his operational service of Mr Allison’s malignant neoplasm of the colorectum, I must apply the standard of reasonable hypothesis, in this case, by identifying the applicable Statement of Principles (SoP) and considering whether any hypothesis raised by the material before me conforms with one of the factors in the SoP. If so, then I must consider whether I am satisfied, beyond reasonable doubt, that the condition is not war-caused.
In so doing I will follow the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
Mrs Allison relied on factor 5(c) of Statement of Principles No. 1 of 2004 as amended by No 39 of 2011. That factor requires:
(c) drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum.
Clause 4 of the SoP provides that a factor set out in the SoP must be related to any relevant service rendered by the person.
There is no dispute that Mr Allison satisfied the requirements of factor 5(c) itself, in relation to amount and timing of alcohol consumption. However, the Commission contends that his alcohol consumption during the…

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.

Continue reading Norma Allison and Repatriation Commission

Details

AGLC: Norma Allison and Repatriation Commission [2014] AATA 48
Case: [2014] AATA 48
Decision Date: 31 January 2014

CaseChat Overview and Summary

Norma Allison, as the dependant of a deceased veteran, brought a claim before the Administrative Appeals Tribunal (AAT) against the Repatriation Commission for benefits related to her husband's malignant neoplasm of the colorectum. The central issue was whether there was a reasonable hypothesis that the veteran's condition was related to his service, thus entitling the claimant to benefits. The AAT reviewed the decision of the Repatriation Commission, which had denied the claim.

The legal issue before the court was the interpretation and application of the standard of "reasonable satisfaction" in determining whether the veteran's condition was related to his service. The court needed to assess whether the hypothesis linking the veteran's condition to his service was reasonable, considering the evidence presented. The court also had to evaluate the reasoning of the Repatriation Commission in their original decision to deny the claim.

The court determined that the hypothesis linking the veteran's malignant neoplasm of the colorectum to his service was not reasonable. It concluded that the evidence did not support a reasonable connection between the veteran's condition and his operational service. The court found that the Repatriation Commission's decision was not flawed and adhered to the standard of "reasonable satisfaction." The court affirmed the decision of the Repatriation Commission, denying the claim for benefits.

Orders

Orders of the court

Full text does not contain this section.

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

For these reasons I conclude that the hypothesis is not reasonable. It follows that Mr Allison’s malignant neoplasm of the colorectum was not related to his operational service.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/2170
Re	Norma Allison
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Bell, Senior Member
Date	31 January 2014
Place	Sydney