Ovenden and Repatriation Commission - [2000] AATA 80

DECISION AND REASONS FOR DECISION [2000] AATA 80

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q97/964

VETERANS' APPEALS DIVISION )

Re BERNICE JUNE OVENDEN
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member) Captain ET Keane (Member) Dr DJ Cull (Member)

Date9 February 2000
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes a decision that the veteran's death was war-caused, with effect from 18 October 1995.

(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – relevant Statement of Principles (SoP) – both current SoP and that existing at the time of death considered – salt intake – veteran's beliefs in necessity of salt was war-caused – salt intake related to hypertension – reasonable hypothesis satisfied
Veterans' Entitlements Act 1986 ss.8, 120, 120A
Statements of Principles No. 83 of 1995 and No. 25 of 1999
Keeley v Repatriation Commission [1999] FCA 1103

REASONS FOR DECISION

9 February 2000 Miss WJF Purcell (Senior Member) Captain ET Keane (Member) Dr DJ Cull (Member)

The applicant seeks review of a decision of the Repatriation Commission (the Commission) of 5 October 1995 that the death of her husband (the veteran) on 14 February 1992 was not war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 (the Act). The decision was affirmed by the Veterans' Review Board (the VRB) on 24 July 1997.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), and exhibits tendered by the parties. Mr O'Gorman was counsel for the applicant, who gave oral evidence and called Dr Goodwin, Physician, as a witness. Mr Smith represented the Commission and called Dr Kenardy, associate Professor of Psychology, as a witness.
The veteran served in the Australian Army from 6 October 1941 to 13 December 1945. He served outside Australia in the South West Pacific region for a total of 889 days, and rendered therefore, operational service. The standard of proof applicable is that of reasonable hypothesis in accordance with section 120 of the Act which, as far as is relevant for the purposes of this review provides:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(2)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be…

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.

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Details

Case: [2000] AATA 80
Decision Date: 9 February 2000

CaseChat Overview and Summary

In the case of Ovenden and the Repatriation Commission, the dispute revolved around the veteran's entitlement to benefits under the Veterans' Entitlements Act 1986. The deceased veteran had claimed that his hypertension was caused by his war service, and specifically by his excessive salt intake during that time. The case was heard by the Federal Court of Australia, which had to determine whether the veteran's beliefs regarding the necessity of his salt intake were relevant and whether the hypertension was related to his war service.

The primary legal issue before the court was whether the veteran's hypertension, which was exacerbated by his high salt intake, could be considered as a war-related condition under the Act. The court needed to examine the relevant Statements of Principles (SoP) to ascertain if the veteran's condition was covered. The court also had to decide whether the current SoP or the one that was in effect at the time of the veteran's death should be applied. Additionally, the court had to assess whether a reasonable hypothesis existed that the hypertension was related to the veteran's war service, considering his beliefs about the necessity of salt intake during that time.

The Federal Court concluded that the veteran's beliefs about the necessity of his high salt intake during war service constituted a reasonable hypothesis that the hypertension was related to his service. The court found that both the current SoP and the one existing at the time of the veteran's death should be considered. The court determined that the hypertension was indeed related to the veteran's war service, as his high salt intake was a result of his service. Therefore, the veteran's claim for benefits was upheld.

The court ordered that the Repatriation Commission review the veteran's entitlement to benefits under the Act, taking into account the hypertension as a war-related condition. The decision was based on the reasonable hypothesis that the hypertension was related to the veteran's high salt intake during his service, which was believed to be necessary at the time.

Orders