Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 36
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2007/3061
VETERANS’ APPEALS DIVISION )
Re EDNA JOHN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Dr J D Campbell, Member
Date20 January 2009
PlaceSydney
Decision
The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant is entitled to a war widow’s pension, with the date of effect being 21 August 2005.
....................[sgd]...................
Dr J D Campbell
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – war widows’ pension – kind of death – ischaemic heart disease – hypertension – salt supplements – veteran’s hypertension was war-caused disease – veteran’s ischaemic heart disease was war-caused disease – applicant entitled to war widows’ pension – decision under review set aside
Veterans' Entitlements Act 1986 – Section 119
Lowerson v Repatriation Commission (1994) 50 FCR 252
Statement of Principles Concerning Ischaemic Heart Disease No. 89 of 2007
Statement of Principles Concerning Hypertension No. 35 of 2003
REASONS FOR DECISION
20 January 2009
Dr J D Campbell, Member
1. Mrs John lodged a claim for a war widows’ pension on 21 November 2005. Mrs John married Mr Lisle John on 24 April 1943. Mr John had operational service in World War II during the period 18 June 1942 and 15 March 1946. Mr John died on 27 September 1981. The cause of death listed on Mr John’s death certificate was left heart failure (days), myocardial infarction (days) and hypertension (years).
2. The Repatriation Commission on 26 November 2005 was satisfied that Mr John’s death was due to ischaemic heart disease, but was unable to relate the ischaemic heart disease to his service and concluded beyond reasonable doubt that the death is not service related. The matter was further considered by the Veterans’ Review Board who, in time, affirmed the Repatriation Commission decision of 26 November 2005 that the death of Mr John was not war-caused.
Issues
3. The issues in this matter are:
·What kind of death did Mr John suffer? and
·Was Mr John’s death war-caused? and
·Is Mrs John entitled to a widow’s pension.
Evidence of Mrs John
4. Mrs John is an elderly person who experienced some difficulty in presenting oral evidence because of spasms. Mrs John recounted the history of her relationship with Mr John, who she first met in 1941, married in 1943, moved to live with in Darwin from 1946 to 1953 and thereafter in Sydney until his death in 1981. Mrs John detailed her evidence in two written statements and in oral evidence with the degree of clarity expected of events occurring over a seventy year time frame, namely some uncertainty and hesitancy over some aspects of chronology in relation to Mr John’s employment activities in Sydney between 1953 and 1961, when he joined the Sydney County Council.
5. Mrs John detailed meeting Mr John in 1941, marriage in Tamworth in 1943 and rejoining Mr John in Darwin in 1946 on his discharge from the…
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CaseChat Overview and Summary
The court examined the Statements of Principles Concerning Ischaemic Heart Disease and Hypertension, which provided that these conditions could be caused by war service. The court noted that the veteran's hypertension was a war-caused disease and that his ischaemic heart disease was also attributable to his military service. Given that both conditions were recognised as war-caused diseases, the applicant was eligible for the pension. The court set aside the previous decision and substituted it with a decision that the applicant is entitled to a war widow’s pension, effective from 21 August 2005.
The Federal Court held that the applicant met the criteria for a war widows’ pension under the Veterans' Entitlements Act 1986. The court was satisfied that the veteran's ischaemic heart disease and hypertension were indeed caused by his war service. The decision was influenced by the relevant legislative provisions and the Statements of Principles that identified these conditions as war-related. The court concluded that the applicant was entitled to the pension from the date specified, reversing the prior decision of the Tribunal.
Orders
Orders of the court
The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant is entitled to a war widow’s pension, with the date of effect being 21 August 2005.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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