Winch, Donald Arthur v Repatriation Commission [1996] FCA 886

Winch, Donald Arthur v Repatriation Commission [1996] FCA 886

No error of law was shown in the AAT's rejection of the rheumatic fever hypothesis: it was open on the whole of the medical material to conclude that the wartime tonsillitis and fever raised only an extreme possibility and did not raise a reasonable hypothesis connecting those illnesses with calcific aortic stenosis. However, the AAT erred in law on the smoking hypothesis because there was material before it, including prior acceptance of carcinoma of the larynx and coronary atherosclerosis as war-caused through smoking and medical evidence from Dr. Rosenbaum, which pointed to smoking as war-caused and as a possible contributor to aortic stenosis. The AAT disposed of that hypothesis by...

Jurisdiction
Australia
Judgment Date
09 October 1996
Procedural Posture
Appeal From the Veterans' Appeal Division of the Administrative Appeals Tribunal / Federal Court Appeal Alleging Error of Law in the Aat's Decision on War Caused Calcific Aortic Stenosis and Special Rate Pension Issues
Outcome
Appeal allowed; decision of the Administrative Appeals Tribunal set aside and matter remitted in part for determination according to law.
Legal Topics
['war Caused Disease' "veteran's Pension" "reasonable Hypothesis Under S.120 of the Veterans' Entitlements Act 1986 (cth)" 'administrative Appeals Tribunal Review' 'smoking as War Caused Cause or Contribution' 'medical Evidence and Conflicting Hypotheses']
["veterans' Entitlements" 'administrative Law'] ['war Caused Disease' "veteran's Pension" "reasonable Hypothesis Under S.120 of the Veterans' Entitlements Act 1986 (cth)" 'administrative Appeals Tribunal Review' 'smoking as War Caused Cause or Contribution' 'medical Evidence and Conflicting Hypotheses']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From the Veterans' Appeal Division of the Administrative Appeals Tribunal / Federal Court Appeal Alleging Error of Law in the Aat's Decision on War Caused Calcific Aortic Stenosis and Special Rate Pension Issues

Legal Issues

  1. 1 ["Whether it was open to the AAT to form the opinion that the material did not raise a reasonable hypothesis connecting the applicant's wartime tonsillitis and fever with calcific aortic stenosis." 'Whether the AAT failed to consider the evidence of Professor Myers.' "Whether the material before the AAT pointed to or raised the applicant's smoking during war service as war-caused and as contributing to calcific aortic stenosis." 'Whether the AAT erred in law by forming its opinion under s.120(3) by reference to only part of the material or by requiring direct evidence from the applicant about smoking.' 'Whether the AAT applied an impermissible onus or standard of proof in dealing with the smoking hypothesis.' 'Whether the special rate pension issues under s.24 should be determined in the appeal.']

Ratio Decidendi

No error of law was shown in the AAT's rejection of the rheumatic fever hypothesis: it was open on the whole of the medical material to conclude that the wartime tonsillitis and fever raised only an extreme possibility and did not raise a reasonable hypothesis connecting those illnesses with calcific aortic stenosis. However, the AAT erred in law on the smoking hypothesis because there was material before it, including prior acceptance of carcinoma of the larynx and coronary atherosclerosis as war-caused through smoking and medical evidence from Dr. Rosenbaum, which pointed to smoking as war-caused and as a possible contributor to aortic stenosis. The AAT disposed of that hypothesis by...

Court Disposition

Appeal allowed; decision of the Administrative Appeals Tribunal set aside and matter remitted in part for determination according to law.

Orders

  • ['The decision of the Administrative Appeals Tribunal is set aside.' 'The matter, except in so far as it concerns the hypothesis connecting the tonsillitis and fever suffered by the veteran during his war service with his calcific aortic stenosis, is remitted to the AAT for its determination in accordance with law.'...