Case: Repatriation Commission v Hancock (2003) 37 AAR 383
Outcome: applied
Thirdly, as Selway J said in Repatriation Commission v Hancock (2003) 37 AAR 383 at [11], there are at least two additional steps before step one in the Deledio analysis. The steps were described by Selway J in Hancock as being: "First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out... Next, the AAT was required to determine on balance of probabilities what "kind of death" [the veteran] had suffered. This involved the identification, on balance of probabilities, of any and all [SoP] and/or determinations under s 180A(2) of the Act and any other "kinds of death" which were applicable to that death. If one or more SoP were applicable, then the methodology in Deledio is applicable in relation to those "kinds of death"..." 23 In the present matter then, it was necessary: (1) to establish the pre-conditions for the claim other than causation on the balance of probabilities. (For example, in the present case, it was necessary for Mrs Codd to show that her husband was a veteran; that Mr Codd had died and that Mrs Codd was a widow. None of these pre-conditions was in dispute here); and (2) in order to ascertain whether a SoP applies, to determine on the balance of probabilities the " kind of death " suffered by the veteran: s 120A(2) and (4) of the VE Act . 24 It is the second of these additional steps which is the subject of this appeal. It will be necessary to return to consider the phrase " kind of death met by the [veteran] " in s 120A(4) of the VE Act . 25 The Tribunal decided that the death of the veteran was war-caused. The hypothesis of connection between the veteran's death and his operational service was articulated by Dr Epstein in the following terms: "[The veteran's] drinking habits were probably war caused and there is a reasonable hypothesis pointing to the effects of alcohol impairing his concentration and contributing to the collision." 26 The hypothesis was summarised " as the late veteran developing a service related alcohol habit the effects of which impaired his concentration and contributed to the fatal collision." It was that hypothesis the Tribunal accepted as a reasonable hypothesis connecting the veteran's death with the circumstances of his war-service. 27 The Tribunal declared that the " kind of death " met by the veteran was death by road accident. The Commission contends that on a proper construction of ss 120 and 120A of the VE Act , the Tribunal's finding that the kind of death met by the veteran was "death by road accident" was not open to the Tribunal. 28 As a result of the Tribunal's declaration of the " kind of death " as death by road accident, the Tribunal: (1) found that there was no SoP which applied to that kind of death and proceeded on the basis that the application was to be determined by the law prevailing before the introduction of the regime of SoPs; and (2) not being satisfied beyond reasonable doubt that there were sufficient grounds to determine that the death was not war-caused, set aside the decision under review and decided that the death was war-caused.