Zelma Taber and Repatriation Commission

[2009] AATA 504

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 504

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2729

VETERANS' APPEALS DIVISION		)
Re		Zelma Taber

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Hon. Justice Brian Tamberlin, Deputy President

Date3 July 2009

PlaceSydney   

Decision The application is dismissed and the Delegate’s decision is affirmed.

.....................[sgd].........................

Deputy President Tamberlin

CATCHWORDS

VETERANS’ ENTITLEMENTS – claim for war widows’ pension – whether death related to war service – entries in veteran’s service record – Sick List Record Card – whether reasonable hypothesis connecting veteran’s death with war service – decision under review affirmed – application dismissed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

CITATIONS

Bull v Repatriation Commission [2001] FCA 1832
Byrnes v The Repatriation Commission (1993) 177 CLR 564 at 571
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Gardiner v Repatriation Commission [2007] AATA 1330

REASONS FOR DECISION

3 July 2009   Hon. Justice Brian Tamberlin, Deputy President

INTRODUCTION

1.      This is an application to review a decision of the Repatriation Commission of 13 December 2007, as affirmed by the Veterans’ Review Board on 30 April 2008, that the death of Mr Edwin Taber (the veteran) was not related to service and that therefore a War Widows’ pension was not payable to the Applicant widow, Mrs Zelma Taber.

2.      On 12 June 2007 Mrs Taber lodged a claim for acceptance of the death of her late husband as being “war service related”.  Under the Veterans’ Entitlement Act 1986 (Cth) (the Act) for a claim to be accepted the cause of death must be related to a period of war service.  It is common ground that Mr Taber had operational service in Word War II during the period 12 February 1942 to June 1946.

3.      The Act provides that if there is a reasonable hypothesis raised on the material which connects the veteran’s death with a period of operational service, then the Commission must accept the claim unless satisfied beyond reasonable doubt that the death is not related to the service.

4.      At all relevant times there is no Statement of Principles, which applied to the death of Mr Edwin Taber, under which the claim falls to be considered.

5.      In the decision under review the Delegate of the Commission observed that entries in the veteran’s service record had been entered by a clerk and transcribed from other documents.  The Delegate considered that the entries themselves were not significant as they were not medical records.

6.      The Delegate considered that the key document in the case was a Hospital or Sick List Record Card dated 1 November 1944 which, in his view, recorded that the veteran was admitted to the 1st Australian Orthopaedic Hospital on 18 October 1944 and discharged on 1 November 1944.  This card contained a section where the diagnosis of the condition to be treated was to be inserted.  On the original card a diagnosis of ’Otitis Media‘ had been written in pencil.  On the instructions in brackets…