Simpson and Repatriation Commission - [2002] AATA 608

DECISION AND REASONS FOR DECISION [2002] AATA 608

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/105

VETERANS' APPEALS DIVISION )

Re RUBY MAY SIMPSON
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen Dr M E C Thorpe, Member Mr S Webb, Member

Date9 July 2002
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/105

)
VETERANS' APPEALS DIVISION                )
Re:       RUBY MAY SIMPSON
  Applicant
And:     REPATRIATION COMMISSION
Respondent

DECISION

Tribunal              Senior Member M D Allen
  Dr M E C Thorpe, Member
  Mr S Webb, Member

Date 9 July 2002

Place Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)             M D ALLEN
   ....................................
  Presiding Member
CATCHWORDS

VETERANS' ENTITLEMENTS: Death of Veteran from cancer of the colon. Whether caused or contributed by war caused habituation to alcohol and tobacco. Ceased smoking in 1954 and resumed in 1957. No evidence suggesting resumption of smoking war caused. Tribunal not satisfied alcohol habituation causally linked to war service.
Veterans' Entitlements Act 1986 – ss 120(4), s120B
Repatriation Commission V Tuite [1992] 17 AAR 158
O'Brien v Repatriation Commission [1984] 1 FCR 472

REASONS FOR DECISION

Senior Member M D Allen
Dr M E C Thorpe, Member
Mr S Webb, Member

At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Dr M E C Thorpe, Member
Mr S Webb, Member

Signed:
..................................................................................……………………………….
Associate

Date of Hearing  8 July 2002
Date of Decision  9 July 2002
Counsel for Applicant                 Mr C Colborne
Solicitor for Applicant                  Vardanega Roberts Solicitors
Representative for Respondent Ms P Hook, Department of Veterans' Affairs

DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/105 of 2002
By MR M.D. ALLEN, SENIOR MEMBER,
DR M E C THORPE, MEMBER, AND MR S WEBB, MEMBER
MRS R. SIMPSON and REPATRIATION COMMISSION
SYDNEY, 8 JULY 2002

MR ALLEN: Pursuant to an application lodged with the Tribunal on 2 April 2001 to which an extension of time was granted the applicant being the legal personal representative of Jack Simpson, deceased, seeks review of a determination by…

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 [2002] AATA 608
Case: [2002] AATA 608
Decision Date: 9 July 2002

CaseChat Overview and Summary

In the case of Simpson and Repatriation Commission, the deceased veteran's widow sought to establish whether her husband's cancer of the colon was caused or contributed to by his habituation to alcohol and tobacco during his war service. The dispute was adjudicated in the Federal Court of Australia. The primary focus was on whether the veteran's war service led to the habituation that eventually contributed to his death from cancer. The Repatriation Commission was tasked with determining if there was a causal link between the veteran's war service and his subsequent health issues.

The court had to decide if the veteran's habituation to alcohol and tobacco, which he developed during his war service, was a contributing factor to his death from colon cancer. The central legal issue was whether the veteran's smoking and drinking habits, which began during his war service, were sufficiently linked to his military service to warrant compensation under the Veterans' Entitlements Act 1986. The court also had to assess the relevance of the veteran's cessation and resumption of smoking, and whether there was any evidence to suggest that the resumption was war-caused.

The court concluded that while the veteran's habituation to alcohol and tobacco during his war service might have contributed to his health issues, there was insufficient evidence to establish a direct causal link between his war service and the specific resumption of smoking in 1957. Additionally, the court found no evidence suggesting that the resumption of smoking was war-caused. The Tribunal was also not satisfied that the alcohol habituation was causally linked to the veteran's war service. As a result, the court ruled that the Repatriation Commission was correct in not finding a causal link between the veteran's war service and his colon cancer.

The final orders of the court were that the appeal by the widow was dismissed, and the decision of the Repatriation Commission was upheld. The court found that there was no sufficient evidence to establish a causal link between the veteran's war service and the factors that contributed to his colon cancer. Consequently, the widow's claim for compensation was rejected.

Orders