Robertson and Repatriation Commission

[2011] AATA 80

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, Member

Date11 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, Member
Background

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…