Joyce Hughes and Repatriation Commission

[2013] AATA 238

[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 1507

Gilkinson 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

1. 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.

2. 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. 

3. 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.

4. 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

5. 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)…