Re Campbell and Repatriation Commission

Case [2001] AATA 559

Administrative

Appeals

Tribunal
 

DECISION AND REASONS FOR DECISION [2003] 349

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2001/310

VETERANS' APPEALS DIVISION

)
Re IVY HARRIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member

Date17 April 2003 

PlaceBrisbane

Decision

The Tribunal affirms the decision under review. 

.....................(Sgd).....................

IR Way
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – war widow’s pension – whether death of veteran was war-caused - dementia – whether dementia was caused by Alzheimer’s disease or a cerebrovascular accident – whether reasonable hypothesis can be established connecting veteran’s death to his war service

Veterans’ Entitlements Act 1986 ss 8, 119, 120, 120A

Re Campbell and Repatriation Commission [2001] AATA 559
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Lee (1981) 147 CLR 635
Holthouse v Repatriation Commission (1982) 1 RPD 287
Roncevich v Repatriation Commission (2001) 66 ALD 105
Bull v Repatriation Commission [2001] FCA 823
Re Cowie and Repatriation Commission [1999] AATA 334
Repatriation Commission v Deledio (1998) 83 FCR 82
Meehan v Repatriation Commission [2001] FCA 597
Benjamin v Repatriation Commission [2001] FCA 522

REASONS FOR DECISION

17 April 2003  Mr IR Way, Member            

1. This is an application by Ivy Harris (“the applicant”) for review of a decision of the Repatriation Commission made on 7 April 1999, and affirmed by the Veterans’ Review Board (“VRB”) on 19 February 2001, which determined that the death of the applicant’s husband, Richard Harris (“the veteran”) was not war-caused within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (“the Act”).

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and documentary evidence as follows:

§Exhibit A1         Statement of Ivy Harris dated 9 June 2002

§Exhibit A2         Statement of Ivy Harris dated 18 September 2001

§Exhibit A3         Statement of Janette Harris dated 9 June 2002

§Exhibit A4         Report of Dr JFR Love dated 28 March 2002

§Exhibit A5         Documents relating to previous back claim

§Exhibit R1         Report of Dr Glenda Powell dated 3 July 2002

§Exhibit R2         Report of Dr Glenda Powell dated 29 March 1996

§Exhibit R3         CT Scan – Dr Neil Orr

3.       The applicant, the applicant’s daughter Janette Harris, Dr Love and Dr Powell gave oral evidence.  The applicant was represented by Ms M Brennan of Counsel and the respondent by Mr M Smith, Departmental Advocate.

4. Under section 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused. A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14 of the Act.

5.       The applicant is a widow of a veteran who rendered “operational service” as defined in subsections 5B and 6A of the Act, namely, continuous full-time service outside Australia during World War II.

6.       Mr…

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AGLC
Re Campbell and Repatriation Commission [2001] AATA 559
Case
[2001] AATA 559
Decision Date

CaseChat Overview and Summary

The applicant, acting as the legal personal representative of the estate of a deceased veteran, sought a review of a decision by the Repatriation Commission to refuse to grant a war widow’s pension to the applicant’s mother, who was the widow of the deceased veteran. The central issue in dispute was whether the veteran’s death was caused by his war service, which would entitle the applicant’s mother to a war widow’s pension under the Veterans’ Entitlements Act 1986. The dispute was heard and determined by the Administrative Appeals Tribunal.

The primary legal issue the Tribunal had to decide was whether the veteran’s death could be reasonably attributed to his war service, given that he had died from dementia. The Tribunal had to determine whether there was a reasonable hypothesis that the veteran’s war service caused his dementia, which in turn led to his death. This involved assessing medical evidence and expert opinions on the cause of the veteran’s dementia, whether it was due to Alzheimer’s disease or a cerebrovascular accident.

The Tribunal considered the evidence presented and concluded that there was insufficient evidence to establish a reasonable hypothesis that the veteran’s war service caused his dementia. The Tribunal relied on previous cases and statutory provisions to determine that the applicant had not discharged the onus of proving a causal connection between the veteran’s war service and his death. The Tribunal found that the evidence did not support a finding that the veteran’s death was war-caused, and therefore, the decision of the Repatriation Commission to refuse the war widow’s pension was affirmed.

The Tribunal’s decision was based on the lack of sufficient evidence to establish a reasonable hypothesis connecting the veteran’s war service to his death. The Tribunal held that the onus of proof had not been met, and accordingly, the application for review was dismissed. The decision under review was affirmed.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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