Re Withers and Repatriation Commission - [2000] AATA 990

DECISION AND REASONS FOR DECISION [2000] AATA 990

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N99/1140
VETERANS'      APPEALS       DIVISION)
           Re:     EDNA JOYCE WITHERS
  Applicant
           And:    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal: Mrs H. E. Hallowes, Senior Member

Date:14 November 2000
Place:Sydney

Decision: The decision under review is affirmed.

(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS —widow's pension — malignant neoplasm of the bladder — whether veteran a smoker — whether a reasonable hypothesis connecting death of veteran with war service as a result of smoking at least 10 cigarettes per day as a result of war service
Administrative Appeals Tribunal Act 1975 ss.34B, 37
Veterans' Entitlements Act 1986 ss.8, 13, 120, 120A, 196B
Statement of Principles concerning Neoplasm of the Bladder

Instrument Nº 231 of 1995 as amended by Instrument Nº 362 of 1995

Repatriation Commission v Keeley (2000) 31 AAR 150
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISIONS

14 November 2000 Mrs H.E. Hallowes, Senior Member

The applicant seeks review of a decision made by a delegate of the Repatriation Commission made on 2 July 1996, which was affirmed by the Veterans' Review Board ("VRB") on13 May 1999, that the death of Mr Robert Melville Withers ("the veteran") was not war-caused pursuant to section 8 of the Veterans' Entitlements Act 1986 ("the Act") and that his widow, the applicant, is not entitled to be paid widow's pension pursuant to section 13 of the Act.
The application was originally listed for hearing with the parties to appear in person. The Tribunal was advised that the applicant was too ill to attend the hearing and, with the consent of the parties, the matter was determined without a hearing under section 34B of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). The Tribunal had before it the documents lodged pursuant to section 37 of the AAT Act ("the documents"). The Tribunal invited the parties to lodge any further submissions they may wish to make, particularly in light of the recent decision handed down by the Full Federal Court in the matter of Repatriation Commission v Keeley (2000) 31 AAR 150. Both parties lodged further submissions.
The veteran served with the Australian Army between 20 February 1942 and 10 January 1946, including service overseas. He therefore had operational service 4. and the standard of proof the Tribunal must apply in considering the matter is provided under subsections 120(1) and (3) of the Act and, also, as the applicant lodged her claim on 12 June 1996, subsection 120A(3). The relevant provisions are as follows:
120(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…

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 Re Withers and Repatriation Commission

Details

AGLC: Re Withers and Repatriation Commission [2000] AATA 990
Case: [2000] AATA 990
Decision Date: 14 November 2000

CaseChat Overview and Summary

In the matter of Re Withers and Repatriation Commission, the applicant, Edna Joyce Withers, sought review of a decision made by a delegate of the Repatriation Commission, which was affirmed by the Veterans' Review Board, that the death of her husband, Mr Robert Melville Withers, was not war-caused. The applicant argued that her husband's smoking habit, which increased significantly after his war service, was a result of his war service and thus connected to his death from transitional cell carcinoma of the bladder. The Tribunal had to determine whether the hypothesis connecting the veteran's death with his war service was reasonable and whether the Repatriation Commission was satisfied beyond reasonable doubt that the death was not war-caused.

The Tribunal considered the evidence presented, including statements from the applicant and her husband's friend, Mr Gilvear, who both attested to the veteran's increased smoking habit post-service. However, the Tribunal also noted numerous medical records indicating the veteran was a non-smoker. Despite the applicant's claim that her husband was a heavy smoker after service, the Tribunal found that if he was indeed a smoker, his habit was well-established before his enlistment. The Tribunal concluded that the veteran's smoking habit was not attributable to his war service but rather a pre-existing habit that he may have continued and possibly increased post-war. Consequently, the Tribunal found that the death of the veteran did not arise out of or is attributable to the service rendered by him.

The decision under review was affirmed, meaning the Repatriation Commission's determination that the veteran's death was not war-caused was upheld. The Tribunal's reasoning was based on the evidence that the veteran's smoking habit, if it existed, was established before his war service, and thus his death from transitional cell carcinoma of the bladder was not connected to his war service.

Orders