Phyllis Horn and Repatriation Commission

Case [2014] AATA 520

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )

)        No: 2013/5134

Veterans' Appeals Division  )

Re: Phyllis Horn
Applicant

And: Repatriation Commission
Respondent

DIRECTION

TRIBUNAL:             Dr P McDermott RFD, Senior Member

DATE:   8 September 2014

PLACE:                  Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application, replacing 22 August 2014 at line 3 paragraph 49 and on the cover page with 26 August 2014.

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[2014] AATA 520

Division VETERANS' APPEALS DIVISION

File Number

2013/5134

Re

Phyllis Horn

APPLICANT

And

Repatriation Commission

RESPONDENT

Decision

Tribunal

Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member
Date 29 July 2014
Place Brisbane

We set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow's pension with effect from 22 August 2012 to 7 April 2014.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

VETERANS' AFFAIRS – Pensions and benefits – Widow's pension – Death of veteran – Death by dementia – Operational service – Statement of Principles concerning Alzheimer-type Dementia –Statement of Principles concerning Hypertension – Reasonable hypothesis connecting death with circumstances of service – Not satisfied beyond reasonable doubt that death was not war caused – Decision under review set aside and substituted

LEGISLATION

Veterans' Entitlement Act 1986 (Cth) ss 5E, 6B, 7, 8, 11, 13, 14, 120, 126, 120A, 196A, 196B

CASES

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Collins v Administrative Appeals Tribunal (2007) 163 FCR 35

Collins v Repatriation Commission (2009) 258 ALR 204

East v Repatriation Commission (1987) 16 FCR 517

Forrester v Repatriation Commission [2013] FCA 898

Gilbert v Repatriation Commission (1989) 86 ALR 713

Knight v Repatriation Commission [2010] FCA 1134

McKenna v Repatriation Commission [1999] FCA 323

McKenzie v Repatriation Commission [2014] FCA 777

Repatriation Commission v Bawden [2012] FCAFC 176

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Law (1980) 147 CLR 635

Repatriation Commission v McKenna [1998] FCA 787

Repatriation Commission v Stares (1996) 41 ALD 212

Repatriation Commission v Warren [2008] FCAFC 64

The Estate of the late Sarah Isabella Stewart [2014] AATA 161

SECONDARY MATERIALS

Statement of Principles concerning Hypertension (Instrument No 63 of 2013)

Statement of Principles concerning Alzheimer-type dementia (Instrument No 22 of 2010)

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

29 July 2014

INTRODUCTION

  1. Phyllis Horn (“the applicant”) was a dependent of the late Noel Horn (“the veteran”) who served in World War II. The applicant has applied for a war widow’s pension. As the applicant is now deceased, her application is being continued by her estate. We have to decide whether the death of the late veteran was related to his…

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Phyllis Horn and Repatriation Commission [2014] AATA 520
Case
[2014] AATA 520
Decision Date

CaseChat Overview and Summary

The case involves Phyllis Horn, the applicant, who is applying for a war widow’s pension following the death of her husband, the late Noel Horn, who served in World War II. The application is being pursued by the estate of the applicant, who has since passed away. The central legal issue is whether the death of the veteran can be considered war-caused, which is necessary for the applicant to qualify for the pension. This determination hinges on whether the veteran's death arose out of or was attributable to his eligible war service, as outlined in the Veterans’ Entitlement Act 1986.

The court had to determine if there was a reasonable hypothesis connecting the veteran's death to his war service. The death certificate indicated that the veteran died of a lower respiratory tract infection and dementia, with recurrent urinary tract infections as a contributing factor. The court applied the Deledio four-step process to assess the claim. Initially, the court examined whether the material presented pointed to a hypothesis connecting the veteran's death to his service. It found that there was a basis for such a hypothesis. Next, it checked for any relevant Statements of Principles, which were not present. The court then assessed if the hypothesis was reasonable, concluding it was, as it was consistent with the veteran's service. Finally, the court had to determine if it was satisfied beyond reasonable doubt that the death was not war-caused, which it was not.

Based on the findings, the court decided that the veteran's death was war-caused, thereby satisfying the criteria for the pension. Consequently, the claim for a war widow’s pension by the applicant's estate was upheld. The decision was made that the pension should be paid to the applicant's estate, as she had applied for it during her lifetime, and the application is being continued by her legal personal representative.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Phyllis Horn (“the applicant”) was a dependent of the late Noel Horn (“the veteran”) who served in World War II. The applicant has applied for a war widow’s pension. As the applicant is now deceased, her application is being continued by her estate. We have to decide whether the death of the late veteran was related to his service.PRIOR DECISIONS On 22 November 2012 the applicant made her claim for a war widow’s pension. On 23 April 2013 a delegate of the Repatriation Commission rejected the claim. On 9 September 2013 the Veterans’ Review Board (“VRB”) affirmed the decision of the delegate. The applicant sought review of the decision by this Tribunal.SERVICE The veteran rendered “eligible war service” in the form of operational service from 19 April 1942 to 1 July 1946.[1] [1] As defined by ss 6B and 7 of the Act. LEGISLATIVE FRAMEWORK Section 8 of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) provides for when the death of a veteran is taken to be war-caused. This provision applies where, relevantly under s 8(1)(b), “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”. Section 13(1) of the Act provides, relevantly, that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants. Section 14(1) of the Act provides for a dependant of a deceased veteran to make a claim for a pension. Section 11 provides for a dependant to include a “widow”. Section 5E of the Act defines a “war widow” to be a woman who was the partner of a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran. As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying ss 120(1) and (3) of the Act. Section 120(1) of the Act provides that where a claim for a pension is made: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. Section 120(3) of the Act also provides that:In applying [s 120(1)] 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 satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war-caused injury or a defence-caused injury;(b)that the disease was a war-caused disease or a defence-caused disease; or(c)that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.STATEMENT OF PRINCIPLES

Ratio Decidendi

Legal Principle Established

The death certificate records that the veteran died in 2012, the causes of death being:[2] 1 (a) Lower respiratory tract infection, (b) Dementia. 2. Recurrent urinary tract infections.[2] Exhibit A, p 13.CONSIDERATION The applicant has died since she made this application to this Tribunal. In evidence is the death certificate of the applicant[3] as well her will in which she appointed her legal personal representative.[4] The application does not lapse in view of the applicant having passed away, as she made the application for review to this Tribunal during her lifetime[5] and it is being continued by her legal personal representative under s 126 of the Act. [3] Exhibit I.[4] Exhibit J.[5] The Estate of the late Sarah Isabella Stewart [2014] AATA 161 at [11]. [6] (1998) 83 FCR 82 at 82-83.We are required to consider the applicant’s claim in accordance with the Repatriation Commission v Deledio[6] (“Deledio”) four-step process.[7] [7] Repatriation Commission v Bawden [2012] FCAFC 176 at [40]. In Deledio, the Full Court of the Federal Court of Australia provided guidance on the four steps which we are required to consider:(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a [Statement of Principles (SoP)] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. (iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail. (iv) The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.[8][8] Deledio at 82-83.