Rachel Rayson and Repatriation Commission - [2012] AATA 776

[2012] AATA 776

Division Veterans' Appeals Division

File Number

2011/2482

Re

Rachel Rayson

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr Egon Fice, Senior Member
Dr Roslyn Blakley, Member

Date 7 November 2012

Place Melbourne
The Tribunal affirms the decision of the Veterans’ Review Board made on

14 October 2010.
.......[sgd Egon Fice].................................................................
Mr Egon Fice, Senior Member
VETERANS’ AFFAIRS – Widows’ pension – Royal Australian Navy – Eligible war service – Operational service – kind of death of a veteran – reasonable hypothesis – was the death of the veteran war-caused – cerebrovascular accident – hypertension – depression – cerebral haemorrhage – cerebral ischaemia – smoking
Veterans' Entitlements Act 1986 (Cth) ss 7, 8, 13, 120, 120A, 196B
Collins v Repatriation Commission (2009) 258 ALR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635
Re Rayson and Repatriation Commission (2011) 55 AAR 1
Statement of Principles concerning Cerebrovascular Accident No. 51 of 2006
REASONS FOR DECISION
Mr Egon Fice, Senior Member
Dr Roslyn Blakley, Member
7 November 2012

Mr Stanley Keith Rayson joined the Royal Australian Navy on 14 May 1951. His first period of service concluded on 13 May 1957. He had a second period of service between 10 June 1959 and 8 June 1965. During his time in the Navy Mr Rayson had a number of periods of operational service including:
·3 June 1953 – 12 February 1954 – Korea
·23 June 1960 – 8 July 1960 – Malaya
·15 July 1960 – 31 July 1960 – Malaya
·24 March 1961 – 17 April 1961 – Malaya and Singapore
·22 April 1961 – 14 May 1961 – Malaya and Singapore
·24 June 1961 – 6 July 1961 – Malaya and Singapore
Mr Rayson died on 29 June 2009. He was 77 years of age. The cause of death stated on his Death Certificate was cerebral haemorrhage – 5 hours.
Mrs Rayson lodged a claim with the Department of Veterans Affairs (DVA) for a pension by a widow of a deceased veteran on 31 August 2009. In her claim, Mrs Rayson said she believed her husband's death resulted from the stress of service in Korean waters and the smoking habit which he took up during military service.
On 4 January 2010 the Repatriation Commission notified Mrs Rayson that her husband's death was not related to his service and that the war widows' pension was not payable to her. On 8 February 2010 Mrs Rayson lodged with the Repatriation Commission an application for review of that decision by the Veterans’ Review Board (VRB). On 14 October 2010 the VRB affirmed the decision of the Repatriation Commission. Mrs Rayson lodged an appeal to the Tribunal on 23 June 2011 seeking a review of the VRB decision.
The substantive issues which we are required to determine are:
(a)whether 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 Rachel Rayson and Repatriation Commission

Details

AGLC: Rachel Rayson and Repatriation Commission [2012] AATA 776
Case: [2012] AATA 776
Decision Date: 7 November 2012

CaseChat Overview and Summary

In the case of Rachel Rayson and Repatriation Commission, the applicant, Rachel Rayson, sought to establish a connection between her husband's death and his military service in the Royal Australian Navy. The dispute was ultimately heard by the Court, which was tasked with determining whether there was a reasonable hypothesis linking the death to the military service.

The central legal issue before the Court was whether the evidence presented supported a connection between Mr Rayson's death and his military service, specifically if there was a sufficient hypothesis connecting the two. The Court was required to apply the relevant statutory provisions and guidelines to assess the material provided and determine whether the death could be considered war-caused.

After carefully examining all the evidence, the Court concluded that the material did not establish a reasonable hypothesis connecting Mr Rayson's death to his military service. The Court found that the most significant contributing cause of death was hypertension and that there was no evidence supporting any of the hypotheses proposed by Mrs Rayson. Consequently, the Court affirmed the decision of the VRB that Mr Rayson's death was not related to his military service. The Court held that there was no sufficient ground for determining that Mr Rayson's death was war-caused under s 120(3) of the VE Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given our findings regarding all possible relevant factors set out in the SoP dealing with cerebrovascular accident, after considering the whole of the material before us, we are of the opinion that the material does not raise a reasonable hypothesis connecting Mr Rayson's death with the circumstances of his military service with the Royal Australian Navy.CONCLUSION Mr Rayson suffered an intracerebral haemorrhage which was the cause of his death. The most significant contributing cause was hypertension. Although Mrs Rayson raised a number of hypotheses linking her husband's death with his military service in the Australian Navy, after careful examination of the material before us, we are of the opinion that it does not raise a reasonable hypothesis connecting his death with his military service. That is because it does not satisfy any of the relevant factors set out in the SoP concerning cerebrovascular accident which must be related to the relevant service rendered by Mr Rayson. Therefore, in accordance with s 120(3) of the VE Act, we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Rayson's death was war-caused. We find that the decision made by the VRB on 14 October 2010 that Mr Rayson's death was not related to his military service was correct. We affirm the decision.

Ratio Decidendi

Legal Principle Established

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Division	Veterans' Appeals Division
File Number	2011/2482
Re	Rachel Rayson
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr Egon Fice, Senior Member Dr Roslyn Blakley, Member
Date	7 November 2012
Place	Melbourne