Horbury and Repatriation Commission

[2008] AATA 6

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 6

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V 200600850

VETERANS' APPEALS DIVISION		)
Re		ENID HORBURY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Regina Perton

Date4 January 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

VETERANS’ ENTITLEMENTS ‑ widow’s pension ‑ eligible war service – kind of death ‑ whether Statement of Principles met – alcohol – causal or temporal connection with service – decision affirmed.

Veterans’ Entitlements Act 1986 ss 8(1), 119, 120(4), 120B, 196B(14)

Christopher Lloyd Walmsley v Repatriation Commission [1997] FCA 703

Critch v Repatriation Commission (1996) 43 ALD 574

Re Gillman and Repatriation Commission (1993) 30 ALD 545

Repatriation Commission v Tuite (1993) 29 ALD 609

Repatriation Commission v Gorton (2001) 110 FCR 321

Roncevich v Repatriation Commission (2003) FCAFC 146

Roncevich v Repatriation Commission (2005) 218 ALR 733

Smith v Repatriation Commission (1999) 58 ALD 158

REASONS FOR DECISION

4 January 2008 Regina Perton       

1.       William Donald Horbury died on 13 August 1987, after more than 40 years of marriage to Enid Horbury.  He was 64 years old.  Mr Horbury served in the Royal Australian Army (the army) from 1 July 1942 to 11 March 1946.  He did not serve outside Australia.  His service is treated as eligible war service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).  Mr Horbury received a partial disability pension due to a service-related condition of osteoarthrosis right ankle.

2.       Mrs Horbury first lodged a claim for a war widow’s pension in 1988. The Commission and the Veterans’ Review Board (VRB) determined that Mr Horbury’s death was not the result of service-related disabilities.  Mrs Horbury lodged a second claim, which is the subject of this review, on 23 June 2005.  The Commission determined on 16 September 2005 that Mr Horbury’s death was not service-caused.  On 4 August 2006 the VRB affirmed the Commission’s decision.  Mrs Horbury lodged an application for review with the Tribunal on 13 September 2006.

3.       In considering whether Mrs Horbury is eligible for a war widow’s pension, the Tribunal has to determine whether Mr Horbury’s death can be related to his service, taking into account the requirements of the Act and legislative instruments.

Kind of Death

4.       Mr Horbury died on 13 August 1987.  Dr Pun, the certifying medical practitioner, indicated in the death certificate that the Cause of Death was:

Hematemesis – sudden

Hemochromatosis

Diabetes

Chronic obstructive airways disease

Hypertension

5.       The Tribunal received reports from Dr R Byron Collins, Consultant Forensic Pathologist and Professor J F Cade, Director of Intensive Care at the Royal Melbourne Hospital concerning Mr Horbury’s death.

6.       In a report to the applicant’s solicitors dated 28 December 2006, Dr Collins, based on the written evidence provided to him (which included reports from Mr Horbury’s treating medical practitioners prepared in 1982, 1987 and1988), stated:

1.    There is insufficient medical information presently available to properly assess the significance or otherwise…