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3.5.4 Balance of probability (BOP) cases

The standard of proof that applies to liability claims relating to peacetime service is on the 'balance of probability' or by applying the 'reasonable satisfaction' test.  Therefore, to accept the claim, a decision maker must be reasonably satisfied that contention X (due to service) caused or aggravated condition Y (injury, disease or death).

The concept of 'reasonable satisfaction' is well established within the legal framework.  The decision maker must ask, having regard for all of the material and weighing up the evidence, whether it is more likely than not that X caused/aggravated Y?  If so, the claim must be accepted;  if not, it must be rejected.

Although the MRCA is regarded as 'beneficial legislation', this does not mean a departure from the normal rules of administrative decision making in the weighing of evidence.    Generally speaking, wherever there is more than one interpretation of the facts or legislation, the interpretation adopted should favour the claimant.  A beneficial interpretation of the material does not mean that decision makers are free to depart from the law or to behave capriciously or arbitrarily.  The concept is not concerned with remedying substantive deficiencies in the evidence or the applicant's case [Bey v Repatriation Commission [1997] FCA 452].

However, if, when weighing up the material and asking whether or not contention X (due to peacetime service) caused or aggravated condition Y (injury, disease or death), a decision maker is genuinely unable to decide, the claimant should be given the benefit of any doubt.