Reardon and Repatriation Commission

[2008] AATA 46

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 46

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2004/1199

VETERANS’       APPEALS      DIVISION		)
Re		MAISIE REARDON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date16 January 2008

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
Senior Member

  

VETERANS’ AFFAIRS – widow's application – service in New Guinea – cigarette smoking – death certificate alleged to have omitted some kinds or causes of death – examination of competing medical evidence – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) s 120 and s 120A

Benjamin v Repatriation Commission [2001] FCA 1879

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrne v Repatriation Commission [2007] FCAFC 126

Fogarty v Repatriation Commission [2003] FCAFC 136

Repatriation Commission v Budworth [2001] FCA 1421

Repatriation Commission v Codd [2007] FCA 877

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 711

REASONS FOR DECISION

16 January 2008   Mr John Handley, Senior Member

1.      Mrs Reardon claims a pension as the widow of the late Geoffrey Edwin Reardon.  She contends that his death was war-caused.  The Veterans’ Review Board (VRB) and the respondent did not share that view and declined her claim.  These proceedings are a review of the decision to reject her entitlement to pension under the Veterans’ Entitlements Act 1986 (the Act).

2.      Mr Reardon died on 7 February 2003 aged 87 years.  He served overseas as a member of the Australian Army between 1942 and 1946 and he is therefore regarded as having been engaged in operational service.  The death certificate recorded the cause of death as liver metastases – months; carcinoma of prostate – 13 years.  A significant issue in these proceedings was whether the death certificate accurately recorded the cause of death.  It followed that an attempt was made to establish other medical conditions, which if successful, would attract a Statement of Principle that would support a hypothesis linking service with death.

3.      During the hearing, it emerged that some of the medical witnesses had the opinion that other conditions suffered by the deceased should have been recorded on the death certificate, yet it was their opinion that those conditions did not cause death.  Professor Cade explained it was appropriate that major illnesses are so recorded for epidemiological purposes but it does not imply causation or a contribution to the death (Trans. day 3, pp10-11).

4.      Since qualification for pension was changed by the introduction of Statement of Principles and the consequent legislative amendments, a number of decisions of the Federal Court considerably influence and dictate the process of decision‑making upon review.

5. Section 120 of the Act is no less relevant but it is affected – in the case of a person who was engaged in operational service – by the provisions of s 120A of the Act. In Repatriation Commission v Hancock [2003] FCA 711 Selway J decided that whilst the identification of injury or disease…