Tipper and Repatriation Commission

[2005] AATA 1181

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1181

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/943

VETERANS APPEALS    DIVISION		)
Re		MAISIE TIPPER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member Robin Hunt  

Member Dr John Campbell

Date1 December 2005

PlaceSydney

Decision The decision under review is affirmed.

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

Ms R Hunt        
  Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Claim by widow – Cause of death – Death certified due to prostate cancer – Consideration of possible relationship to diet in the navy – Veteran’s prostate cancer not caused by any factor set out in statement of principles – Death not war-caused – Decision affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 s120

CASES

Fitzgerald v Penn (1954) 91 CLR 268

R v Malcherek [1981] 1 WLR 690

Chappel v Hart (1998) 195 CLR 232

Spencer v Repatriation Commission (2002) 74 ALD 362

Repatriation Commission v Hancock (2003) 37 AAR 383

Brown and Repatriation Commission [2003] AATA 1010

REASONS FOR DECISION

1 December 2005 Senior Member Robin Hunt 
Member Dr John Campbell           

INTRODUCTION

1.      Mrs Maisie Tipper, the applicant, is the widow of a veteran, Mr Percy Alexander Tipper. Mr Tipper served in the Australian navy during World War II. The certificate of death issued in 2002 stated that the cause of Mr Tipper’s death was prostate cancer. Mrs Tipper sought review of the decision that his death was not attributable to his war service. We have affirmed the decision that Mr Tipper’s death was not war-caused for the reasons set out below.

background

2.      Mrs Tipper married Mr Tipper in 1944 and they were together until Mr Tipper died on 12 February 2002. Mrs Tipper saw her husband suffer considerable pain over the last years of his life. After he was diagnosed with prostate cancer, he continued to deteriorate and became confined to a wheelchair. Mrs Tipper told the tribunal she believes that her husband’s death was related to his war service, and especially the trauma he was exposed to in the gunnery of HMAS Canberra, which sank with the loss of many lives.

3.      We heard the oral evidence of Mrs Tipper and one of her four sons, Mr Ray Tipper. As well, we took note of the historical, dietary and medical reports before us. We concluded that, although Mr Tipper was a veteran who gave considerable war service, his death was not war-caused. We did not find evidence to support a theory that Mr Tipper’s death was in any way related to his service. This means that Mrs Tipper’s claim must fail.

ISSUES

4.      The issues for the tribunal revolve around the cause of Mr Tipper’s death. Mrs Tipper and her son suspect that Mr Tipper’s prostate cancer may in some way be related to his diet in the navy or to the traumatic experiences he was exposed to. As there is no dispute as to death resulting from prostate cancer, the first issue is whether it is a reasonable hypothesis that Mr Tipper’s cancer…