Tinkler and Repatriation Commission - [2001] AATA 253

DECISION AND REASONS FOR DECISION [2001] AATA 253

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1996/1145

VETERANS' APPEALS DIVISION       )
           Re      Gladys Irena TINKLER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date29 March 2001
PlaceSydney

Decision      The Tribunal affirms the decision of a delegate of the Repatriation Commission dated 19 April 1995 that determined that the death of Usher Gordon Tinkler was not war-caused.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS AFFAIRS – war widow's pension – death of veteran from myocardial infarction and ischaemic heart disease - whether hypertension contributed to death from ischaemic heart disease – whether reasonable hypothesis that war-caused stress contributed to development of hypertension – whether hypothesis raised is consistent with factors in Statement of Principles - whether earlier or later Statements of Principles are more beneficial

Veterans' Entitlements Act ss 120(1), 120(3), 120A

Statement of Principles - Instruments No 85 of 1995, No 83 of 1995, No 38 of 1999, No 25 of 1999

Arnott v Repatriation Commission [2001] FCA 262
Gorton v Repatriation Commission [2001] FCA 286
Ogston v Repatriation Commission (1999) 86 FCR 578
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") made on 19 April 1995 that determined that the death of Usher Gordon Tinkler ("the Veteran") was not war-caused and that his widow, Gladys Irena Tinkler ("the Applicant"), was not entitled to war widow's pension. That decision was reviewed by the Veterans' Review Board on 22 August 1996 and affirmed. An application for review was lodged with this Tribunal on 24 September 1996.
At the hearing the Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. A report from Dr E Schiller, cardiologist, dated 23 September 1997, was tendered on behalf of the Applicant. The Applicant and her son, Ian Geoffrey Tinkler, gave oral evidence at the hearing.
The Veteran was born on 2 June 1919. He served in the Australian Army from 4 March 1941 until 19 October 1944, including service in Darwin and New Guinea, and he is therefore determined to have had operational service.
The Veteran died on 11 October 1994 from acute myocardial infarction and ischaemic heart disease. It is the Applicant's case that the Veteran suffered from an anxiety state arising from his war service and that this caused the later development of hypertension that contributed to his ischaemic heart disease and ultimately to his death.
legislation and applicable statements of principles
As the Veteran had operational service, the standard of proof to be applied in determining this matter is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act"), which requires the Tribunal to determine that the Veteran's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that…

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 Tinkler and Repatriation Commission

Details

AGLC: Tinkler and Repatriation Commission [2001] AATA 253
Case: [2001] AATA 253
Decision Date: 29 March 2001

CaseChat Overview and Summary

The matter before the court was a challenge by the applicant, Tinkler, against the decision of the Repatriation Commission to deny her entitlement to a war widow's pension. The central issue was whether the veteran's death from myocardial infarction and ischaemic heart disease was linked to hypertension, and if that hypertension could be reasonably attributed to war-caused stress, thus qualifying under the relevant Statement of Principles. The applicant argued that the Commission's decision failed to properly consider the potential connection between the veteran's war service and his hypertension.

The legal issues before the court required it to interpret the Veterans' Entitlements Act and relevant Statements of Principles, and to determine whether the Commission's decision was legally sound. Specifically, the court had to assess whether there was a reasonable hypothesis that war-caused stress contributed to the development of hypertension, which in turn contributed to the veteran's death from ischaemic heart disease. The court also needed to consider whether this hypothesis was consistent with the factors outlined in the relevant Statement of Principles and whether the earlier or later versions of these principles should apply.

In examining the case, the court found that the Commission had appropriately applied the relevant legislative framework and correctly interpreted the applicable Statement of Principles. The court determined that there was no reasonable hypothesis linking the veteran's hypertension to war-caused stress, and therefore, the applicant's claim for a war widow's pension was properly denied. The court held that the Commission's decision was legally sound and based on a reasonable interpretation of the evidence and applicable law.

Consequently, the court dismissed the application, affirming the Repatriation Commission's decision. The court found that the Commission had correctly applied the relevant legal principles and that the evidence did not support a connection between the veteran's war service and his hypertension, thus upholding the denial of the pension entitlement.

Orders