Norton and Repatriation Commission - [2008] AATA 1

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601234

VETERANS’ APPEALS DIVISION )

Re LORRAINE NORTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member
Date2 January 2008
PlaceMelbourne

Decision The Tribunal sets aside the decision under review and in substitution decides that Mr Goodwin’s death was causally related to his operational service. A disability pension of 70 per cent of the General Rate is payable from 6 July 2005 and the Special Rate is payable from 25 March 2006 until the veteran’s death on 30 November 2006.
(sgd) E.A. Shanahan
Member

VETERANS’ AFFAIRS - continuation of claim under s 126 – veteran deceased – death due to primary carcinoma of the liver – alcohol abuse – cirrhosis – anxiety state – claimed stressors – sub-hypotheses dependant on anxiety state or alcohol abuse being war‑caused – decision set aside
Veterans’ Entitlements Act 1986
Deledio v Repatriation Commission (1998) 49 ALD 193
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Stoddart (2003) 134 FCR 392
Statement of Principles concerning Malignant Neoplasm of the Liver
(Instrument No 171 of 1996)
Statement of Principles concerning Generalised Anxiety Disorder and Anxiety Disorder due to a General Medical Condition and Anxiety Disorder
(Instrument No 1 of 2000)
Statement of Principles concerning Anxiety Disorder
(Instrument No 102 of 2007)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse
(Instrument No 76 of 1998)
Statement of Principles concerning Chronic Gastritis
(Instrument No 75 of 2001)
Statement of Principles concerning Cirrhosis of the Liver
(Instrument No 35 of 1998)
REASONS FOR DECISION

2 January 2008 Miss E.A. Shanahan, Member
1. On 27 March 2007 Mrs Norton, as Executor of the late Perrin Goodwin’s estate, was approved, pursuant to s 126 of the Veterans’ Entitlements Act 1986 (the Act), to continue the claim of the deceased veteran. Mr Goodwin had died on 30 November 2006 from primary adenocarcinoma of the liver with widespread metastases. Mr Goodwin had lodged numerous claims for a disability pension between 30 November 1995 and 16 November 2006, all of which were rejected on the basis that the conditions from which he allegedly suffered were not war-caused, except for bilateral sensorineural hearing loss and tinnitus. The accepted disabilities had resulted in Mr Goodwin receiving a pension at 20 percent of the General Rate with effect from 27 July 2005.
2.      Mr Goodwin’s claims for disability pension for anxiety state, alcohol abuse and cirrhosis of the liver were rejected in 1995, 1999 and again in 2003, on the basis that the conditions were not war-caused. His claim for neoplasm of the liver was rejected on 3 November 2005. The Veterans Review Board (VRB) affirmed the decisions of the delegate of the Repatriation Commission on 16 November 2006. This application for review of the decisions was lodged with the Administrative Appeals Tribunal on 22 December 2006.
3.      Mr Goodwin was conscripted into the Australian Army on 1 May 1968. He…

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 Norton and Repatriation Commission

Details

AGLC: Norton and Repatriation Commission [2008] AATA 1
Case: [2008] AATA 1
Decision Date: 2 January 2008

CaseChat Overview and Summary

In the matter of Norton and Repatriation Commission, the Tribunal was called upon to review a decision regarding the pension entitlements of a veteran, Mr Goodwin, who had passed away. The dispute centred on whether Mr Goodwin's death was related to his operational service, which would entitle his estate to a disability pension. The Tribunal was tasked with determining whether the decision of the Repatriation Commission to deny the pension should be upheld or overturned.

The central legal issue before the Tribunal was whether Mr Goodwin's death was causally related to his operational service, and if so, whether this entitled his estate to a disability pension. The Tribunal was required to examine the evidence provided and apply relevant legislation and case law to determine the causal link, if any, between Mr Goodwin's service and his subsequent death.

The Tribunal found that there was a causal relationship between Mr Goodwin's operational service and his death. The evidence showed that Mr Goodwin had sustained injuries during his service which contributed to his deteriorating health and eventual death. The Tribunal concluded that the Repatriation Commission had erred in not recognising this causal link. Consequently, the Tribunal set aside the decision of the Repatriation Commission and substituted its own decision, finding that Mr Goodwin's death was indeed related to his service. As a result, a disability pension was payable from 6 July 2005, and the Special Rate was payable from 25 March 2006 until Mr Goodwin's death on 30 November 2006.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution decides that Mr Goodwin’s death was causally related to his operational service. A disability pension of 70 per cent of the General Rate is payable from 6 July 2005 and the Special Rate is payable from 25 March 2006 until the veteran’s death on 30 November 2006.

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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