Sach and Repatriation Commission - [2000] AATA 1064

DECISION AND REASONS FOR DECISION [2000] AATA 1064

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N98/1382
VETERANS'     APPEALS        DIVISION)
           Re:     VIOLET SACH
  Applicant
           And     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       Mrs     H.E.    Hallowes, Senior     Member Dr    J.R.     Vallentine,     Member
Date:             4 December 2000
Place:            Sydney

Decision:The decision under review is set aside and the Tribunal substitutes a decision that the death of the veteran was war-caused and the applicant is entitled to be paid pension under the Veterans' Entitlements Act 1986.

(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — widow's pension — whether veteran's death war-caused — operational service — malignant carcinoid tumour of the colon — whether Statement of Principles ("SoPs") concerning disease —which SoPs should be applied — smoking and drinking habits — whether connected with war service
Veterans' Entitlements Act 1986 ss.6, 8, 120, 120A, 196B
Statement of Principles concerning Malignant Neoplasm of the Colon

Instrument Nº 37 of 1995
Instrument Nº 23 of 1996
Instrument Nº 5 of 1998

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Ogston v Repatriation Commission (1999) 29 AAR 89
Repatriation Commission v Keeley (2000) 31 AAR 150
Repatriation Commission v Deledio (1998) 49 ALD 193
Gartrell v Repatriation Commission (2000) FCA 1228 (decided 9 August 2000)

REASONS FOR DECISION

4 December 2000 Mrs H.E. Hallowes, Senior Member

Dr J.R. Vallentine, Member

This is a review of a decision of the Repatriation Commission made on 1 February 1996, which was affirmed by the Veterans' Review Board ("the VRB") on 20 July 1998, that the death of the veteran, Mr R. Sach ("the veteran") was not war-caused.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), together with further material lodged by both parties at the hearing.
The documents disclose that Mrs Sach lodged a claim for widow's pension under section 8 of the Veterans' Entitlements Act 1986 ("the Act") on 31 July 1995. She provided details of the veteran's service history. The veteran died on 23 January 1985. The causes of death listed on the death certificate were
. . .
(a)Peritonitis 2 days
(b)Perforated caecum 2 days
(c)Primary hepatoma 1 year
. . .

The veteran's general practitioner, who certified his death, Dr R. Tinning, advised on 20 July 1984 that the veteran was suffering from "carcinoma of liver".

In rejecting Mrs Sach's claim for widow's pension the delegate of the Repatriation Commission advised:
. . . Our records show the cause of death as carcinoid syndrome.
. . .
In this case the RMA has not yet issued a Statement of Principles for Carcinoid syndrome. . . .
Medical advice is that the cause of carcinoid syndrome is unknown. It is not clear where the carcinoid tumour originated but they can arise from the appendix or the ileum; the cause of malignant tumours in these areas is also unknown. Exposure to coal dust is not a known cause of these tumours.
.…

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 Sach and Repatriation Commission

Details

AGLC: Sach and Repatriation Commission [2000] AATA 1064
Case: [2000] AATA 1064
Decision Date: 4 December 2000

CaseChat Overview and Summary

Violet Sach, a widow, sought a pension under the Veterans' Entitlements Act 1986, claiming her husband's death was war-caused. The Repatriation Commission rejected her claim, asserting that the veteran's death was not connected to his war service. The case was reviewed by the Administrative Appeals Tribunal (AATA), which found the Commission's decision was flawed. The AATA overturned the Commission's decision and ruled that the veteran's death was war-caused, entitling Mrs Sach to a pension. The central issue was whether the veteran's malignant carcinoid tumour of the colon was connected to his war service. Another issue was whether the Statements of Principles (SoPs) in force at the time of the claim or the determination should apply. The AATA determined that the veteran's condition was covered by SoPs in force when Mrs Sach lodged her claim, but not when the Commission made its decision. Despite this, the AATA found that the veteran's death was reasonably connected to his war service through either his smoking habit or alcohol consumption, as these factors were consistent with the SoPs. The AATA concluded that Mrs Sach was entitled to a pension.

Orders