Norris and Repatriation Commission - [2005] AATA 256

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 256
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1815

VETERANS’ APPEALS DIVISION )

Re SHIRLEY NORRIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Robin Hunt, Senior Member

Dr Ion Alexander, Member

Date 29 March 2005
PlaceSydney

Decision The decision under review is affirmed.
...................[sgd]...........................
Robin Hunt
Senior Member

CATCHWORDS
VETERAN’S ENTITLEMENTS – claim by widow- cause of death - real or operative cause not a terminal condition - haemorrhage was end process of dying not cause of death – death not caused by or contributed to by war caused smoking and alcohol habits.
Veterans’ Entitlements Act 1986 s120
Fitzgerald v Penn (1954) 91 CLR 268
Chappel v Hart (1998) 195 CLR 232
Reg v Malcherek and Steel [1981] 1 WLR 690
Repatriation Commission v Hancock [2003] FCA 711
Spencer v Repatriation Commission 34 AAR 379
Brown and Repatriation Commission [2003] AATA 1010
REASONS FOR DECISION

20 March 2005 Robin Hunt, Senior Member
Dr Ion Alexander, Member

1. By application heard before the Tribunal on the second of February 2005, Mrs Shirley Norris, the widow of a veteran, Mr John Thomas Norris, sought review of a decision of the Respondent as affirmed by a Veterans’ Review Board that the death of her late husband was not attributable to his war service. Mr Norris died on the 23^rd of January 1975. The certified cause of death was :
(a) Massive gastric and duodenal haemorrhages - days
(b) Cirrhosis of the liver - years

2. As the deceased had “operational service”, as defined in section 6 (A) of the Veterans Entitlements Act 1986 (‘the VEA’), the standard of proof in this matter is that prescribed by subsections 120(1) and (3) of the Act. The Tribunal must find that the death was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof. If, after a consideration of all the material before it, the Tribunal decides the evidence does not raise a reasonable hypothesis connecting Mr Norris’s death with his service, Mrs Norris’s claim cannot succeed.
3. Before dealing with whether the death was war-caused, the Tribunal must determine, on the balance of probabilities, the “kind of death” suffered by Mr Norris. See Repatriation Commission v. Hancock [2003] FCA 711 and the Tribunal case, Brown and Repatriation Commission [2003] AATA 1010. In determining the “kind of death” the Tribunal is, as Senior Member Allen and Member Thorpe explained in Brown, seeking the real or operative cause of death as opposed to the final stage of the process of dying. Senior Member Allen and Member Thorpe approached this exercise in Brown by adopting the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276. See also Chappel v Hart (1998) 195 CLR 232 at 243, per Gaudron J, and compare Reg v Malcherek and…

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 Norris and Repatriation Commission

Details

AGLC: Norris and Repatriation Commission [2005] AATA 256
Case: [2005] AATA 256
Decision Date: 29 March 2005

CaseChat Overview and Summary

The case of Norris and the Repatriation Commission involves a claim by a widow for veteran's entitlements under the Veterans’ Entitlements Act 1986. The widow sought compensation for the death of her husband, arguing that his death was caused by or contributed to by his war service. The Repatriation Commission denied the claim, asserting that the husband's death was not attributable to his war service, but rather to his personal habits of smoking and excessive alcohol consumption. The matter was brought before the court to determine the validity of the widow's claim.

The primary legal issues for the court to decide were whether the husband's death was caused by or contributed to by his war service and whether the haemorrhage that occurred was the real or operative cause of his death. The court needed to consider the relevant statutory provisions under the Veterans’ Entitlements Act 1986, as well as relevant case law, to ascertain the proper interpretation and application of the legislation. The court had to balance the statutory language with the principles established in cases such as Fitzgerald v Penn, Chappel v Hart, and Reg v Malcherek and Steel, alongside decisions from administrative tribunals like Repatriation Commission v Hancock and Spencer v Repatriation Commission.

The court found that the haemorrhage, which was the immediate cause of death, was not the real or operative cause but rather the end process of the dying. It was determined that the husband's death was due to his personal habits of smoking and excessive alcohol consumption, which were not connected to his war service. The court relied on the reasoning in Brown and Repatriation Commission and the principle that the cause of death must be attributable to the war service to affirm the Repatriation Commission's decision. Consequently, the court held that the widow's claim was not substantiated as the death was neither caused by nor contributed to by the husband's war service.

The court's decision affirmed the Repatriation Commission's denial of the widow's claim for veteran's entitlements. The widow's appeal was dismissed, and the original decision was upheld. The court's ruling underscores the necessity for a direct link between the veteran's service and the cause of death for a claim to be successful under the Veterans’ Entitlements Act 1986.

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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