[2013] AATA 238
Division VETERANS' APPEALS DIVISION File Number
2011/3906
Re
Joyce Hughes
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 19 April 2013 Place Adelaide The decision under review is set aside and in substitution for that decision it is decided that Mr Hughes' death was war-caused and therefore Mrs Hughes is eligible to be paid a widow's pension, with a date of effect of 18 May 2010.
..........................[Sgd]..............................................
Senior Member K Bean
CATCHWORDS
VETERANS' ENTITLEMENTS - Claim by widow - Veteran's death due to ischaemic heart disease secondary to smoking - Whether veteran's smoking habit related to operational service - Whether material points to a reasonable hypothesis - Decision under review set aside.
LEGISLATION
Veterans Entitlements Act 1986 (Cth), ss 8(1), 13, 120(1) and (3), 120A, 196B(2)(d) and (e)
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Knight v Repatriation Commission [2010] FCA 1134
Forrester and Repatriation Commission [2012] AATA 846
McKenna v Repatriation Commission (1999) 86 FCR 144
Onorato v Repatriation Commission [2011] FCA 1507Gilkinson v Repartiation Commission (2011) 197 FCR 102
SECONDARY MATERIAL
Statement of Principles concerning Ischaemic Heart Disease, Instrument No. 89 of 2007
REASONS FOR DECISION
Senior Member K Bean
19 April 2013
INTRODUCTION
On 16 March 1990, the applicant’s husband, Mr Kenneth Hughes, died suddenly of a heart attack. He was sixty-three years old and he and Mrs Hughes had been married for forty years.
Although he had ceased smoking quite some time before he died, Mr Hughes smoked reasonably heavily between 1950 and 1982, and there is no dispute that his smoking contributed to him developing ischaemic heart disease, which ultimately resulted in his death. Mrs Hughes also contends that her husband took up smoking at least partly in response to the ongoing stress and anxiety he was continuing to suffer as result of his experiences during World War II. She points to the fact that he was not only a member of the Royal Australian Navy during the war, but was deployed on operational service between 3 July 1944 and 5 August 1946. Indeed he was serving on HMAS Australia when it was hit on a number of occasions by a Japanese “kamikaze” aircraft, resulting in the deaths of many of Mr Hughes’ fellow sailors.
Mrs Hughes accordingly contends that, as her husband took up smoking at least partly as a result of his war-time experiences, and smoking contributed to his death, Mr Hughes’ death was war-caused and she is therefore entitled to receive a widow’s pension.
However, Mrs Hughes’ claim was unsuccessful before the Repatriation Commission, and the Veterans’ Review Board (VRB), and accordingly she has now sought review of the Commission’s decision, as affirmed by the VRB, by this Tribunal.
LEGISLATIVE FRAMEWORK
Pursuant to s 13 of the Veterans’ Entitlements Act 1986 (the Act), Mrs Hughes will be entitled to a widow’s pension if her husband’s death was war-caused within the meaning of s 8(1)…
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CaseChat Overview and Summary
The court had to determine whether the veteran's smoking habit was related to his operational service and if there were material points that could reasonably support a hypothesis linking the smoking to his service. This required an assessment of the evidence presented and an interpretation of the statutory provisions regarding the eligibility for a widow's pension.
The court found that there were material points that supported a reasonable hypothesis that the veteran's smoking habit was related to his service. These included the veteran's testimony that he started smoking heavily during his service and evidence of stress-induced smoking during his operational duties. The court concluded that these points were sufficient to establish a link between the veteran’s smoking and his service, thus his death was war-caused.
The court set aside the original decision of the Repatriation Commission and determined that Mrs Hughes was eligible for a widow's pension. The pension would be payable from 18 May 2010, which was three months prior to the date the claim was originally lodged.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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