Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 80
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3918
Veterans' Appeals DIVISION ) Re Clara Robertson Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Dr John Campbell, MemberDate11 February 2011
PlaceSydney
Decision The decision under review is affirmed.
....................[sgd]..........................
Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – claim for widow’s pension – kind of death - excessive drinking following service during bombing raids in Darwin – whether atrial fibrillation a kind of death – decision under review affirmed
Veterans Entitlements Act 1986 ss 8, 13, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 713
Martyn and Repatriation Commission [2006] AATA 895
Hayes v Repatriation Commission [2005] FMCA 125
Nicolia v Commissioner for Railways (NSW) (1970) 46 ALJR 466, 467
Hill v Repatriation Commission [2009] FCAFC 91
REASONS FOR DECISION
11 February 2011 Senior Member Jill Toohey
Dr John Campbell, MemberBackground
1. Mr Frederick Robertson served in the Australian Army from October 1941 to March 1946, including in Darwin from June 1942 to March 1943 throughout which time it was bombed by the Japanese. The whole of his service is operational service for the purposes of the Veterans Entitlements Act 1986 (the Act).
2. Mr Robertson died in Maitland Hospital on 20 May 2005 at the age of 85. His widow, Clara Robertson, claims a war widow’s pension. She says that, as a result of events that occurred during his service in Darwin, her husband developed an alcohol habit which led to atrial fibrillation and, in turn, to his death.
3. The Repatriation Commission (the Commission) does not dispute that Mr Robertson had atrial fibrillation but says he died from cholecystitis and cellulitis, which led to septicaemia and pneumonia, conditions unrelated to his service.
Legislative framework
4. By s 13 of the Act, Mrs Robertson will be entitled to a widow’s pension if her husband’s death was attributable to his operational service: s 8(1)(b).
5. As Mrs Robertson’s claim arises out of her husband’s operational service, the standard of reasonable hypothesis applies: s 120 (1) and s 120 (3). We must find Mr Robertson’s death to be war-caused unless we are satisfied beyond reasonable doubt that there is no sufficient ground for finding that his death was war-caused. The steps to be followed in making our determination are set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
6. A hypothesis connecting a veteran’s kind of death with service will be reasonable if it is upheld by a Statement of Principles (SOP) concerning that kind of death: s 120A (3).
The issues
7. We have first to determine Mr Robertson’s kind of death: Repatriation Commission v Hancock [2003] FCA 711 at [9]. The standard of proof is on the balance of probabilities: s 120 (4).
8. If we are satisfied that atrial fibrillation was a cause of Mr Robertson’s death, we must then determine if a reasonable…
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- AGLC
- Robertson and Repatriation Commission [2011] AATA 80
- Case
- [2011] AATA 80
- Decision Date
CaseChat Overview and Summary
The Court examined the statutory provisions governing pension entitlements, focusing on the definition of "death" and its implications for the widow's claim. It considered whether the atrial fibrillation, a condition triggered by the veteran's post-service drinking, constituted a "kind of death" under the relevant legislation. The Court concluded that atrial fibrillation, while a serious medical condition, did not equate to a "kind of death" as defined by the statute. The Court's reasoning hinged on the specific statutory language and the interpretation of medical evidence, ultimately finding that the condition did not meet the criteria for a "kind of death." As a result, the Court upheld the Commission's decision not to grant the widow's pension claim.
In affirming the decision under review, the Court held that the Repatriation Commission's determination was consistent with the statutory provisions and the evidence presented. The widow's appeal was dismissed, and the original decision denying the pension was upheld. This decision clarifies the interpretation of "kind of death" in the context of pension entitlements for war veterans and their widows.
Orders
Orders of the court
The decision under review is affirmed.
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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