Scanlon and Repatriation Commission - [2005] AATA 1053

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1053
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/777
VETERANS’ APPEALS DIVISION

Re: MARIE THERESE SCANLON
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             21 October 2005
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan
Member

VETERANS’ AFFAIRS – widow's application – operational service on the part of deceased veteran – death due to cardiac arrest – well‑documented hyperlipidaemia – impact of dietary factors on hyperlipidaemia – service‑related dietary intake – decision affirmed on the basis of lack of evidence
Veterans’ Entitlements Act 1986 ss 120(1), 120(3), 120(4), 120A
Statements of Principles
Instrument № 53 of 2003 as amended by Instrument № 94 of 2004 concerning
ischaemic heart disease

Byrnes v Repatriation Commission (1993) 177 CLR 564
Cooke v Repatriation Commission (1997) 45 ALD 205
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
21 October 2005  Miss E.A. Shanahan, Member
1.      This is an application by Marie Therese Scanlon (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 26 November 2002 which found that the death of the veteran was not war‑caused.   subsequently affirmed by the Veterans’ Review Board (the VRB) on 7 June 2004.
2.      The applicant was represented by Mr G. Chancellor of counsel, instructed by Williams Winter, solicitors. The decision of the Tribunal is that the decision under review be affirmed. The respondent was represented by Mr K. Herman, an advocate with the Department of Veterans’ Affairs.
3. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). The parties tendered the following documents:
Report of Professor A. Sinclair dated 25 May 2005  Exhibit A1
A supplementary report Professor Sinclair dated 6 August 2005       Exhibit A2
Report of Associate Professor A. Pitt dated 29 September 2004       Exhibit A3
Clinical Notes Dr C. Arter   Exhibit A4
Report of Dr B. Wood dated 8 July 2005  Exhibit R1
Report by Writeway Research Service Pty Ltd dated 16 April 2005   Exhibit R2
Supplementary report by Writeway Research Service Pty Ltd
dated 25 July 2005  Exhibit R3
Transcript of the VRB Hearing dated 7 June 2004  Exhibit R4

4. Mrs Scanlon, Professor Sinclair, Dr Pitt, Dr Wood and Captain Macdonald gave oral evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
5. On 15 November 2002 Mrs Scanlon applied for a veteran's widow’s pension. Her husband, Frances Kenneth Scanlon, died on 27 September 2002, having suddenly collapsed and died within minutes of attending a social event. The Death Certificate, provided by his general practitioner, stated the cause of death to be
Cardiac arrest - sudden
Cardiac arrhythmia (ventricular tachycardia) – minutes
Acute myocardial infarction with ischemic pain – minutes
Mild chronic obstructive airways disease
Early changes of cerebral atherosclerosis

The…

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 Scanlon and Repatriation Commission

Details

AGLC: Scanlon and Repatriation Commission [2005] AATA 1053
Case: [2005] AATA 1053
Decision Date: 21 October 2005

CaseChat Overview and Summary

The case of Scanlon and Repatriation Commission involved an application by Marie Therese Scanlon, the widow of Francis Scanlon, who sought a veteran's widow’s pension on the grounds that her husband's death was related to hyperlipidaemia resulting from changes in his diet during his operational service in the Royal Australian Navy. The Repatriation Commission had previously denied her claim. The matter was heard and decided by Miss E.A. Shanahan, a Member of the Administrative Appeals Tribunal. The central issue was whether there was a reasonable hypothesis that Mr Scanlon's service-related diet changes led to his hyperlipidaemia and subsequent sudden death from ischaemic heart disease.

The Tribunal examined the evidence provided by Mrs Scanlon, who claimed that her husband's diet during his naval service, which included higher animal fat intake, led to a lifelong preference for such foods, resulting in hyperlipidaemia. Expert opinions were provided by Professor Andrew Sinclair, a Professor of Food Science, Dr Aubrey Pitt, a cardiologist, and Dr Beverley Wood, a dietitian. The evidence showed that while Mr Scanlon had hyperlipidaemia, there was insufficient evidence to link this condition to his service diet. The Tribunal concluded that Mrs Scanlon's evidence was inconsistent and speculative, and there was no concrete proof of a significant dietary change during service that could be linked to her husband's hyperlipidaemia.

The Tribunal applied the legal principles outlined in relevant statutes and case law, particularly focusing on the requirement for a reasonable hypothesis to connect the claimed condition with the veteran's service. The Tribunal found that the hypothesis presented was not supported by sufficient evidence and was therefore unreasonable. Consequently, the Tribunal affirmed the decision of the Repatriation Commission, denying the widow’s pension claim.

Orders