Repatriation Commission v Watson, E.n - [1995] FCA 578

CATCHWORDS

VETERANS' ENTITLEMENTS - Service in New Guinea - Creutzfeldt - Jakob disease - Whether reasonable hypothesis connecting disease with war service.

Veterans' Entitlements Act 1986

Bushell v. Repatriation Commission (1992) 175 CLR 408
Byrnes v. Repatriation Commission (1993) 177 CLR 564
Preston v. Repatriation Commission (1993) 45 FCR 214
East v. Repatriation Commission (1987) 16 FCR 517
McMahon v. Repatriation Commission (unreported, 21 July 1993)

REPATRIATION COMMISSION v ELSIE NANCE WATSON VG 160 of 1994

COURT:Sundberg J

PLACE:Melbourne

DATE:4 August 1995

IN THE FEDERAL COURT OF AUSTRALIA                 )
VICTORIA DISTRICT REGISTRY  )                 No VG 160 of 1994
GENERAL DIVISION  )

BETWEEN:REPATRIATION COMMISSION

Applicant

AND:ELSIE NANCE WATSON

Respondent

COURT:Sundberg J
DATE:4 August 1995
PLACE:Melbourne

MINUTES OF ORDER

The Court orders that:

The appeal is allowed.

The decision of the Administrative Appeals Tribunal (Veterans' Appeals Division) is set aside and the decision under review by the Tribunal is affirmed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 )
VICTORIA DISTRICT REGISTRY  )       No VG 160 of 1994
GENERAL DIVISION  )

BETWEEN:REPATRIATION COMMISSION

Applicant

AND:ELSIE NANCE WATSON

Respondent

COURT:Sundberg J
DATE:4 August 1995
PLACE:Melbourne

REASONS FOR JUDGMENT

SUNDBERG J:

Mr. Watson's war service
Evan Lawrence Watson served in the Australian Army from 1939 to 1945. His service included two periods of duty in New Guinea: from November 1944 to January 1945 and from March to September 1945. At the beginning of that period he was 25 years old. Mr. Watson served with the 2/8th Infantry Battalion as an infantryman. The nature and circumstances of his duty in New Guinea are not known, though while there he was hospitalised for eight days with gastroenteritis. He had a number of disabilities that were accepted as war-caused: malaria, clinical amoebiasis, psoriasis with puritis ani and scrotum, and retinal vein thrombosis.

Mr. Watson's health after his return
According to Mrs. Watson, after her husband's return from New Guinea he suffered memory, concentration and personality change, and because of this and recurrent bouts of malaria he had trouble settling down. However, significant memory problems did not develop until the late 1970s. Mr. Watson gave up his job in 1979 due to failing memory. Memory and other cognitive functions continued to deteriorate, leading to his hospitalisation in 1987. By late June 1992 he was no longer able to communicate and was then probably not aware of his surroundings.

1984-1992
Between 1984 and 1986 Mr. Watson was diagnosed by two medical practitioners in Bendigo, where he lived, as suffering from Alzheimer's disease. In June 1992 Dr. Simpkins diagnosed Mr. Watson as suffering from "a very advanced Alzheimer's disease". In July 1992 Dr. Koechne reported that "the correct diagnosis is Alzheimer's disease", and that "from the family history ... the cause is almost certainly genetic". The family history referred to is that Mr. Watson's brother and sister both suffered from some form of dementing disorder or disorders.

The pension claim
In…

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 Repatriation Commission v Watson, E.n

Details

AGLC: Repatriation Commission v Watson, E.n [1995] FCA 578
Case: [1995] FCA 578
Decision Date: 4 AUGUST 1995

CaseChat Overview and Summary

The case of Repatriation Commission v Watson involved the Repatriation Commission appealing a decision of the Administrative Appeals Tribunal (AAT) that a disease suffered by the late Evan Lawrence Watson, a former serviceman, was war-caused within the meaning of the Veterans' Entitlements Act 1986. The Tribunal had substituted Creutzfeldt-Jakob disease (CJD) for the diagnosis of Alzheimer's disease (AD) as the disease from which Mr. Watson suffered. The appeal centred on whether the Tribunal erred in finding that Mr. Watson's CJD was war-caused. The legal issues revolved around the interpretation of section 120(3) of the Act and the standard of proof required to establish a reasonable hypothesis connecting the disease with war service.

Sundberg J held that the Tribunal had erred in law. The Tribunal was required to consider the whole of the material before it in determining whether a reasonable hypothesis was raised by the material. The evidence of Dr. Whyte, a medical expert, indicated that if CJD could be transmitted by injection with a contaminated needle, the clinical features would involve motor dysfunction. However, Mr. Watson did not exhibit those clinical features, only dementia. This evidence contradicted the hypothesis proposed by Dr. Bennett, another medical expert, that Mr. Watson contracted CJD in New Guinea through a contaminated needle. As both experts accepted the clinical features of peripherally transmitted CJD and Mr. Watson did not suffer from motor dysfunction, there was no evidence on the basis of which the Tribunal could have concluded that Mr. Watson's CJD was war-caused. The appeal was allowed, the decision of the Tribunal was set aside, and the original decision of the Commission was affirmed.

Orders