Repatriation Commission and Margaret Prior - [2013] AATA 684

[2013] AATA 684

Division Veterans' Appeals Division

File Number(s)

2012/0162

Re

Repatriation Commission

APPLICANT

And

Margaret Prior

RESPONDENT

Decision

Tribunal
Mr RP Handley, Deputy President
Dr M Couch, Member

Date 24 September 2013

Place Sydney
The decision under review is affirmed.
.............................[SGD].................................
Catchwords
VETERAN'S ENTITLEMENTS - widow's pension - death from suicide - nuclear testing in Monte Bello islands - veteran flew planes involved in Operation Mosaic – veteran suffered from on-going skin condition causing chronic pain - whether veteran rendered British nuclear test defence service - whether veteran was exposed to ionising radiation - whether veteran developed Pemphigus Erythematosus from ionising radiation exposure – reasonable hypothesis satisfied – not satisfied beyond reasonable doubt that incapacity did not arise from war-caused disease – decision affirmed
Legislation
Veteran’s Entitlements Act 1986 ss 9, 68, 69B, 70, 119, 120, 196B
Cases
Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Kaluza v Repatriation Commission [2010] FCA 1244
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Knight (2012) 202 FCR 451

Secondary Materials
Statement of Principles concerning Suicide and Attempted Suicide, No. 11 of 2010
REASONS FOR DECISION
Mr RP Handley, Deputy President
Dr M Couch, Member
Date: 24 September 2013

The Repatriation Commission (the Commission) has applied for a review of a decision of the Veteran’s Review Board (VRB) to set aside a decision of the Commission and substitute a decision that Mr Colin Prior’s death was war-caused with the result that the Commonwealth of Australia was liable to pay Mrs Margaret Prior (the Claimant) a war widow’s pension from 20 April 2010.
Background
Mr Prior served in the Royal Australian Air Force (RAAF) from 30 November 1953 to 1 December 1986, retiring at the rank of Air Commodore. The Claimant contends that Mr Prior’s service included British Nuclear Test Defence Service (BNTDS) on 16 May 1956 in addition to his accepted operational service from 30 May 1965 to 9 June 1965 in Vietnam and his other ‘defence service’ from 7 December 1972 to 1 December 1986.
Mr Prior was born in 1934 and died of carbon monoxide poisoning on 19 October 2001, aged 67. The Claimant contends that on 16 May 1956, Mr Prior, then a Flight Sergeant, was the pilot of a Neptune aircraft that penetrated a nuclear cloud resulting from the detonation of a nuclear device at the Monte Bello Islands off the north western coast of Western Australia during British nuclear weapons testing. Mr Prior subsequently developed a chronic skin condition. There are medical records of him being treated for skin conditions from 1975. The Complainant contends that Mr Prior was suffering from a skin condition and depression related to his BNTDS at the time he committed suicide by carbon monoxide poisoning.
Mr and Mrs Prior were married in 1955 and had five children.…

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.

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Details

Case: [2013] AATA 684
Decision Date

CaseChat Overview and Summary

The Repatriation Commission sought judicial review of a decision by the Veteran’s Review Board (VRB) which overturned the Commission’s decision that Mrs Margaret Prior was not entitled to a war widow’s pension following the death of her husband, Mr Colin Prior. The VRB held that Mr Prior’s death was attributable to his British Nuclear Test Defence Service and thus war-caused, entitling Mrs Prior to a pension. Mr Prior had served in the Royal Australian Air Force from 1953 to 1986 and the Claimant contended that he was exposed to a nuclear cloud during British nuclear testing in 1956. She claimed that this exposure led to chronic skin conditions and ultimately depression, which contributed to his death by carbon monoxide poisoning in 2001. The Commission had twice rejected Mrs Prior’s claims for a pension, decisions which were overturned by the VRB. The central legal issues were whether Mr Prior’s death was attributable to his service, specifically his British Nuclear Test Defence Service, and whether this rendered his death war-caused under the Veteran’s Entitlements Act 1986. The Tribunal examined whether Mr Prior’s death arose out of or was attributable to his defence service, as defined by the Act. The Tribunal concluded that the evidence did not establish beyond reasonable doubt that Mr Prior’s death did not arise from the chronic pain from which he suffered, satisfying the criteria for a war-caused death. The decision of the VRB was affirmed, upholding the entitlement of Mrs Prior to a war widow’s pension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Repatriation Commission (the Commission) has applied for a review of a decision of the Veteran’s Review Board (VRB) to set aside a decision of the Commission and substitute a decision that Mr Colin Prior’s death was war-caused with the result that the Commonwealth of Australia was liable to pay Mrs Margaret Prior (the Claimant) a war widow’s pension from 20 April 2010. Background Mr Prior served in the Royal Australian Air Force (RAAF) from 30 November 1953 to 1 December 1986, retiring at the rank of Air Commodore. The Claimant contends that Mr Prior’s service included British Nuclear Test Defence Service (BNTDS) on 16 May 1956 in addition to his accepted operational service from 30 May 1965 to 9 June 1965 in Vietnam and his other ‘defence service’ from 7 December 1972 to 1 December 1986. Mr Prior was born in 1934 and died of carbon monoxide poisoning on 19 October 2001, aged 67. The Claimant contends that on 16 May 1956, Mr Prior, then a Flight Sergeant, was the pilot of a Neptune aircraft that penetrated a nuclear cloud resulting from the detonation of a nuclear device at the Monte Bello Islands off the north western coast of Western Australia during British nuclear weapons testing. Mr Prior subsequently developed a chronic skin condition. There are medical records of him being treated for skin conditions from 1975. The Complainant contends that Mr Prior was suffering from a skin condition and depression related to his BNTDS at the time he committed suicide by carbon monoxide poisoning. Mr and Mrs Prior were married in 1955 and had five children. Mrs Prior is now aged 76. She first lodged a claim for a war widow’s pension on 24 July 2003 contending that Mr Prior’s death was as a result of depression due to his experiences in the RAAF, but on 5 August 2003, the Commission decided that Mr Prior’s death was not related to his service. On 22 July 2010, Mrs Prior lodged a new claim for a war widow’s pension claiming that at the time of his death as a result of carbon monoxide poisoning her husband was suffering from chronic pain of at least three months’ duration attributable to a skin condition. On 28 January 2011, the Commission once again decided that Mr Prior’s death was not related to his service. On 21 February 2011, Mrs Prior lodged an application for a review of this decision with the VRB. On 11 October 2011, the VRB decided to set aside the Commission’s decision and substitute a decision that Mr Prior’s death was war-caused and that Mrs Prior was therefore entitled to payment of a pension from 20 April 2010. On 12 January 2012, the Commission applied to the Tribunal for a review of the VRB decision.Issues and Legislation Under s 70 of the Veteran’s Entitlements Act 1986 (Cth) (the Act), a veteran’s widow will be eligible for a pension where the death of a member of the Defence Forces was defence-caused. The death of the member will be defence-caused if, relevantly, the death arose out of or was attributable to any defence service of the member. Section 68(1) defines ‘defence service’ as including British nuclear test defence service (BNTDS). Section 69B states relevantly:…(2) A person rendered British nuclear test defence service while the person was a member of the Defence Force and rendered service in an area described in the table at any time during a period described in the table for that area:

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

We have therefore concluded that the evidence does not establish beyond reasonable doubt that Mr Prior’s death did not arise from the chronic pain from which he suffered. Step Four is therefore satisfied and the Tribunal concludes that Mr Prior’s death was defence-caused.Decision The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	Veterans' Appeals Division
File Number(s)	2012/0162
Re	Repatriation Commission
APPLICANT
And	Margaret Prior
RESPONDENT

Tribunal	Mr RP Handley, Deputy President Dr M Couch, Member
Date	24 September 2013
Place	Sydney