Simpson and Repatriation Commission - [2005] AATA 171

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 171
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1320

VETERANS' APPEALS DIVISION )

Re RUBY SIMPSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member
Date28 February 2005
PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Dr J D Campbell Member

CATCHWORDS
VETERANS ENTITLEMENTS – widow’s pension - eligible service - war caused conditions – kind of death - whether death arose out of and/or was contributed to by service - refusal to grant pension affirmed.
Veterans' Entitlements Act 1986 sections 8, 9, 14, 120, 120A
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635
O'Brien v Repatriation Commission (1984) 53 ALR 477
Repatriation Commission v O'Brien (1985) 155 CLR 422
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Gosenwinckel [1999] FCA 1273
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Hancock [2003] FCA 711
REASONS FOR DECISION

28 February 2005 Dr J D Campbell, Member

1.      Mrs Ruby Simpson (“the Applicant”) seeks a review of the decision of the Repatriation Commission (“the Respondent”) dated 25 July 2002 which refused her claim that the death of her late husband, Mr Jack Simpson, was related to his service. This decision had been reviewed by the Veterans’ Review Board (“VRB”) and affirmed in a decision dated 22 May 2003.
background
2.      The late veteran, Mr Simpson, served in the Australian Army from 13 January 1942 to 8 December 1945. As a driver he saw service in New South Wales and Queensland. He suffered from diarrhoea and a closed head injury during service, as well as abdominal pain.
3.      Mr Simpson died on 12 September 1998 with the cause of death being detailed on the death certificate as carcinoma large bowel – duration two years.
4.      Mr Simpson, at the time of his death, had the following conditions accepted as war-caused:
·Scar on head
·Duodenal ulcer and functional intestinal disorder
·Diverticular disease
·Tinea
5.The following conditions had not being accepted as war-caused:
·Personality disorder
·Allergic rhinitis
·Cervical spondylosis
·Malignant neoplasm of the colon with metastatic liver disease
·Hypertension
·Chronic airways limitation
·Dementia with secondary depressive & anxiety features

issues
6.The relevant issues in this matter are:
·what war-caused conditions Mr Simpson suffered at the time of his death
·the kind of death suffered by Mr Simpson
·whether Mr Simpson’s death arose out of and/or was contributed to by his service.

decision
7.For the reasons detailed later in this decision, I find that :
(a)Mr Simpson’s smoking habit did not arise out of nor was attributable to his eligible service; and
(b)Mr Simpson’s alcohol habit did not arise out of nor was attributable to his eligible service; and
(c)the kind of death suffered by Mr Simpson was malignant disease of the colon with metastatic liver disease; and
(d)the kind of death suffered by the Mr Simpson was not…

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 Simpson and Repatriation Commission

Details

AGLC: Simpson and Repatriation Commission [2005] AATA 171
Case: [2005] AATA 171
Decision Date: 28 February 2005

CaseChat Overview and Summary

The matter before the court involved a claim by Simpson for a widow's pension under the Veterans' Entitlements Act 1986, which was denied by the Repatriation Commission. Simpson argued that her husband's death was caused by conditions that arose from his military service, warranting the pension. The case was heard in the Federal Court of Australia, where the Commission's decision was under review.

The central legal issue was whether Simpson's husband's death was sufficiently connected to his service to qualify for the pension. Specifically, the court needed to determine if the death arose out of, or was contributed to by, his service. The relevant sections of the Veterans' Entitlements Act 1986 were sections 8, 9, 14, 120, and 120A, which outline the criteria for a widow's pension. The court also considered several precedent cases, including Repatriation Commission v Law, O'Brien v Repatriation Commission, and others, which provided guidance on the interpretation of these statutory provisions.

The court meticulously examined the evidence regarding the service history and health conditions of Simpson's husband. It assessed whether there was a causal link between the husband's service and his death. The court found that the evidence did not sufficiently establish that the death arose out of or was contributed to by the husband's service. It relied on the precedent cases to conclude that the connection between the service and the death was not strong enough to warrant the pension.

The court affirmed the decision of the Repatriation Commission, denying the pension claim. The decision was upheld, and the review was dismissed.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.