The incapacity referred to in paragraph (c) is the same incapacity referred to in paragraph (b):
Banovich v. Repatriation Commission. It must be that incapacity, "alone" (ie, the only cause), that prevents the veteran (at the relevant time in the assessment period) from continuing to undertake remunerative work that he or she was undertaking.In
Cavell v. Repatriation Commission, Burchett J held that:"the true task [of the tribunal is] to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
In that case, the Court criticised the Tribunal for substituting for the word, "alone", the phrase, "sole, unique and absolute cause". At p.540, the Court indicated that a theoretical, "no matter how small" test would be wrong. Thus some other reason that was insignificant might not disentitle a person to the special rate.
In
Jackman v. Repatriation Commission, Tamberlin J said that war-caused disabilities must be the "only reason" for not being in remunerative work and that the approach to this question is to be guided by commonsense. The Court said:"The AAT had to determine, to its reasonable satisfaction, whether the applicant's war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon 'nice philosophical distinctions', equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an 'eye to reality'."
In
Turnbull v. Repatriation Commission, the Federal Court stated:"If the veteran has ceased to engage in remunerative work for reasons other than the incapacity from the war-caused injury or disease, or is incapacitated or prevented from engaging in remunerative work for some other reason, the veteran shall be taken not to have met the requirements of s.24(1)(c)."
The Court in
Turnbull v. Repatriation Commission noted that the AAT had found that "the pain and disability in the applicant's shoulders and wrists played a part in preventing the applicant from engaging in remunerative work; that pain and disability did not result from a war-caused injury; although the applicant's war-caused injuries had a more substantial effect than the non-war caused injuries in preventing the applicant from engaging in remunerative work, both contributed to his loss of earnings". The Court then said that the "findings were open on the evidence and, as a matter of law, warranted the refusal of the application under s.24(1)(c)". The Court also accepted the statement in Cavell v. Repatriation Commission quoted above as stating "the true task for the AAT". Thus, if some other factor has "played a part" in preventing the veteran from continuing to undertake remunerative work, the veteran cannot meet s.24(1)(c).In
Flentjar v. Repatriation Commission, the Full Federal Court again emphasised that the war-caused disabilities must be the only factor preventing the veteran from continuing to undertake the remunerative work that he or she had been undertaking. It set out the issues concerning paragraph 24(1)(c) in four questions:"1. What was the relevant 'remunerative work that the veteran was undertaking' within the meaning of s.24(1)(c) of the Act?
2. Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3. If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4. If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?"
This approach was also approved in Repatriation Commission v. Boyle.