Shaw and Repatriation Commission

[2005] AATA 354

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 354

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/477

VETERANS APPEALS DIVISION		)
Re		JEAN SHAW

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr I Alexander, Member

Date18 April 2005

PlaceSydney

Decision The decision under review is affirmed.

..........................................

Ms N Bell

Presiding Member

VETERANS’ AFFAIRS – Chronic Obstructive Airways Disease – Accepted War Caused Disability but not Cause of Death – Not Compensable

Veterans’ Entitlements Act 1986; section 8(1)(f)

Repatriation Commission v Law, 47 FLR 57

East v Repatriation Commission, 74 ALR 518

REASONS FOR DECISION

18 April 2005	Ms N Bell, Senior Member Dr I Alexander, Member
Background

1.      Mrs Shaw is the widow of Mr William Shaw, a WW II Veteran, who died at 71 years of age on 7 May 1997.  Mr Shaw had, as an accepted war caused disability, chronic obstructive airways disease.  Mrs Shaw sought to have her husband’s death accepted as war caused but her claim was rejected by the Repatriation Commission.

2.      The basis on which Mrs Shaw’s claim was rejected was that Mr Shaw died from interstitial lung disease, contracted long after his service.  We agree that Mr Shaw’s interstitial lung disease was not war caused because the relevant, and only, factor (inability to obtain appropriate clinical management) in Statement of Principles No.15 of 1998 concerning Idiopathic Fibrosing Alveolitis, is not met.  Mrs Shaw takes no issue with this.

3.      However, Mrs Shaw now contends war causation by another route, that is, the operation of section 8(1)(f) of the Veterans Entitlements Act 1986 (“the Act”).  That section is an alternative to the other, more generally used, liability provisions in the Act and provides:

“(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to be war caused if:

…

(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war caused disease, as the case may be;”

Issues

4.      The question raised by this provision, in the context of Mr Shaw’s circumstances, is whether “the injury or disease from which (Mr Shaw) died” was chronic obstructive airways disease.  The parties referred to, and agreed to adopt as the correct legal position, Discussion Paper No. 7, Death from an Accepted Disability (April 2000), by Bruce Topperwien, Executive Officer of the Veterans’ Review Board.  In that paper the following position is stated:

“A similar phrase, ‘incapacity from which he died’, appeared in section 24 (2)(a) of the Repatriation Act 1920, and was examined in detail by the Federal Court in Repatriation Commission v Hayes ((1982) 43 ALR 216).  In that case, Keely J held that the Repatriation Review Tribunal had erred when it decided that the test was satisfied by finding that the incapacity ‘played some material part’ in the veteran’s…