Repatriation Commission v Codd [2005] FCA 888

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Codd [2005] FCA 888 REPATRIATION COMMISSION v KATHLEEN M CODD V 1152 of 2004

RYAN J

30 JUNE 2005

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1152 of 2004

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal

BETWEEN: REPATRIATION COMMISSION

Applicant

AND: KATHLEEN M CODD

Respondent

JUDGE: RYAN J

DATE OF ORDER: 30 JUNE 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application by way of appeal be allowed. 2. The decision of the Veterans' Appeals Tribunal made on 20 August 2004 be set aside. 3. The matter be remitted to the Tribunal to be heard and determined according to law. 4. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1152 of 2004

On appeal from the Veterans' Appeals Division of the Administrative Appeals Tribunal

BETWEEN: REPATRIATION COMMISSION

Applicant

AND: KATHLEEN M CODD

Respondent

JUDGE: RYAN J

DATE: JUNE 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 This is an application by way of appeal from a decision of the Veterans' Appeals Tribunal ("the Tribunal") made on 20 August 2004. By that decision, the Tribunal set aside the decision of the applicant Repatriation Commission that the death of the late Ronald Kevin Codd ("the veteran") was not war-caused and substituted a decision, that the death of the veteran was war-caused.

Background facts 2 The veteran had served in the Australian Army from 5 October 1942 until 9 August 1946. Between 2 January 1945 and February 1945 he served with 2/4 Dental Unit. He was then diagnosed with cognitive nystagmus and returned to Australia in February 1945. His service had been with the 2/1st Field Ambulance Service to which was attached a Dental Unit. Among the veteran's war-caused disabilities were infected tonsils, chronic eczema and mild labile hypertension. 3 On 7 December 1968 the veteran was killed when a timber truck which he was driving was struck by a train at a level crossing at Benalla in country Victoria. At a subsequent coroner's inquest there was evidence that the veteran's view of the approaching train had been impaired or blocked by the rising sun. There was evidence to the effect that the concentration of alcohol in the veteran's blood at the time of the collision was equivalent to that which would have been brought about by the consumption of one seven-ounce glass of beer. There was also evidence before the Tribunal from the respondent who had met the veteran in 1950 and married him on 16 August 1952. That evidence included these passages; 'I understand from talking to Ron's family that he was a non-drinker before the war. I understand that he commenced drinking during his service. It is my recollection that he was a nervy man when I met him. I recall that from the beginning of our marriage he was a restless sleeper and suffered frequent nightmares. He would scream in his sleep words such as "don't, don't" and "here it comes, here it comes". He was a man who was easily upset and sudden noises and the loud noise of children irritated him.