Furlong and Repatriation Commission - [2011] AATA 873

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 873
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0078

VETERANS' APPEALS DIVISION )

Re EVA ALICE FURLONG

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Lt Col R Ormston (Ret’d) (Member)
Date9 December 2011
PlaceAdelaide

Decision
The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Furlong’s death was war-caused and therefore Mrs Furlong is eligible to be paid a war widow’s pension, with a date of effect of 15 May 2010.

..............................................
K BEAN
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – Widow’s claim – World War II veteran – Veteran died from kidney disease secondary to smoking – Material raises a connection between service and smoking – Contention of a contribution from service to smoking upheld by SoP – Veteran’s death war-caused and eligibility for pension established – Decision under review set aside.
Veterans’ Entitlements Act 1986 ss 8, 7(1), 13(1), 120, 120B, 196B
Statement of Principles Instrument No 103 of 2011
Collins v Repatriation Commission (2009) 177 FCR 280
Re Keenan and Repatriation Commission (1990) 21 ALD 289
Repatriation Commission v Law (1980) 31 ALR 140
Gilkinson v Repatriation Commission [2011] FCAFC 133
Re Everett and Repatriation Commission (1991) 23 ALD 529
REASONS FOR DECISION

9 December 2011 Senior Member K Bean
Lt Col R Ormston (Ret’d) (Member)

introduction
1.At the time he died, on 14 May 2010, the applicant, Mrs Furlong, had been married to Mr Donald Furlong for 54 years. They were married in 1956 and had two children together.
2.Prior to his marriage, Mr Furlong had served in the Royal Australian Air Force (RAAF), between 28 October 1942 and 3 June 1946. Although he was not deployed on operational service, Mr Furlong experienced some stressful events during his service within Australia.
3.Following her husband’s death, Mrs Furlong lodged a claim for a war widow’s pension, on the basis of a connection between Mr Furlong’s death and his service. Mrs Furlong contended that the condition responsible for Mr Furlong’s death was a form of kidney disease known as “renal artery atherosclerotic disease” and that this was due to Mr Furlong’s smoking, which in turn was related to his eligible service.
4.However, Mrs Furlong’s claim was unsuccessful before the Repatriation Commission (the Commission) and the Veterans’ Review Board (VRB), with the VRB concluding that the material before it did not raise a connection between Mr Furlong’s death and his relevant service as required by the Veterans’ Entitlements Act 1986 (Cth) (VE Act).
5.Mrs Furlong has subsequently applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings.
6.We propose to first outline the applicable legislative scheme, before identifying and addressing each of the issues before us.

the legislative scheme
7.Section 13(1) of the VE Act provides relevantly that where the death of a veteran was “war-caused”, the Commonwealth is liable to pay pension by…

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 Furlong and Repatriation Commission

Details

AGLC: Furlong and Repatriation Commission [2011] AATA 873
Case: [2011] AATA 873
Decision Date: 9 December 2011

CaseChat Overview and Summary

Furlong and Repatriation Commission involved a widow's claim for a pension after the death of her husband, a World War II veteran. The widow contended that her husband's death from kidney disease, which was secondary to his smoking, was related to his service during the war. The Repatriation Commission initially denied her claim, finding no direct connection between the veteran's service and his smoking habit. However, the matter was reviewed by a tribunal which reversed the Commission's decision. The central legal issue before the court was whether the veteran's service could be deemed to have materially contributed to his smoking, and consequently, to his death from kidney disease.

The court examined the evidence presented regarding the veteran's service and his smoking habit. It was established that the veteran began smoking during his military service, and there was a suggestion that the habit was fostered by the conditions of service. The court acknowledged the precedent set by the SoP, which had previously ruled that service conditions could materially contribute to smoking. Given this, the court found that the veteran's smoking, and by extension, his kidney disease and death, were indeed connected to his service. This established eligibility for the widow to receive a war widow's pension.

The court set aside the previous decision of the Repatriation Commission and ruled in favour of the widow. The court's decision was based on the established connection between the veteran's service and his smoking habit, which ultimately led to his death. The widow's eligibility for a war widow's pension was confirmed, with the pension to be effective from 15 May 2010. The court's ruling highlighted the importance of considering the broader context of service conditions in assessing the impact of those conditions on veterans' health long after their service has ended.

Orders

Orders of the court

The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Furlong’s death was war-caused and therefore Mrs Furlong is eligible to be paid a war widow’s pension, with a date of effect of 15 May 2010.

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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