Falconer and Repatriation Commission - [2008] AATA 418

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 418
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No. 200600994
VETERANS' APPEALS DIVISION  )

Re MARGARET MARY FALCONER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: G. D. Friedman, Senior Member
Date:21 May 2008
Place:Melbourne

Decision:
The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Senior Member

VETERANS' AFFAIRS - veterans’ entitlements - widow’s claim - chronic obstructive airways disease - whether a contributor to death - smoking - whether condition war-caused
Veterans' Entitlements Act 1986 ss 8(1)(b), 119, 120(4)
Fenner v Repatriation Commission (2005) 218 ALR 122
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Tuite (1993) 39 FCR 540
REASONS FOR DECISION

21 May 2008 G. D. Friedman, Senior Member

1.        Margaret Falconer is the widow of William Fulton Falconer (the veteran), who died in 1995. Mrs Falconer seeks a widow’s pension on the basis of her late husband’s increased smoking during his service with the Australian Army during World War 2.
2.        The issues before the Tribunal are whether chronic obstructive airways disease contributed to the veteran’s death and, if so, whether this condition was related to his army service through smoking.
WHAT IS THE LEGISLATIVE FRAMEWORK?
3.        The veteran served in the army from 20 August 1942 to 17 December 1945.   His service in Victoria and Queensland was eligible service under the Veterans’ Entitlements Act 1986.
4.        Section 8(1) of the Act provides:
8(1)Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…

5. In Repatriation Commission v Tuite (1993) 39 FCR 540 the Full Federal Court held at 545:
The boredom of camp life clearly emerges from the respondent’s account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotine addiction.

Davies J observed at 542:
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.

6. In Repatriation Commission v Law (1980) 31 ALR 140 the Full Federal Court held at 150:
The Act does not say death which is “caused by” or “results from” his war service – phrases which might connote a proximate causal relationship. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Falconer and Repatriation Commission

Details

AGLC: Falconer and Repatriation Commission [2008] AATA 418
Case: [2008] AATA 418
Decision Date: 21 May 2008

CaseChat Overview and Summary

The case involves Margaret Mary Falconer, the widow of William Fulton Falconer, who died in 1995. Mrs. Falconer sought a widow's pension based on her late husband's increased smoking during his service with the Australian Army during World War 2. The Tribunal had to determine whether chronic obstructive airways disease contributed to the veteran's death and, if so, whether this condition was related to his army service through smoking.

The primary legal issues were the interpretation of the Veterans' Entitlements Act 1986, particularly sections 8(1)(b), 119, and 120(4), and whether the veteran's chronic obstructive airways disease was war-caused. The Tribunal had to consider whether the disease arose out of or was attributable to his war service. The relevant Statement of Principles (SoP) No. 31 of 2004 concerning chronic bronchitis and emphysema required the Tribunal to establish a causal link between the disease and the service.

The Tribunal concluded that chronic obstructive airways disease did contribute to the veteran's death, as evidenced by the symptoms described by Mrs. Falconer and her daughters. However, the Tribunal found that there was no persuasive evidence to show that the veteran's increased smoking during service was caused by his army service. Therefore, the Tribunal determined that there was no causal link between the service and the chronic obstructive airways disease that contributed to the veteran's death.

In summary, the Tribunal affirmed the decision under review, finding that Mrs. Falconer was not entitled to a widow's pension based on the criteria outlined in the Veterans' Entitlements Act 1986.

Orders