PENELOPE ANN WILLOUGHBY and REPATRIATION COMMISSION - [2012] AATA 97

[2012] AATA 97

Division VETERANS' APPEALS DIVISION

File Number(s)

2011/0085

Re

PENELOPE ANN WILLOUGHBY

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Senior Member K Bean
Lt Col R Ormston (Rtd) (Member)

Date 17 February 2012

Place Adelaide
The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Willoughby’s death was defence-caused and therefore Mrs Willoughby is eligible to be paid a widow’s pension, with a date of effect of 24 September 2009.
..............................[sgd]..........................................
Senior Member K Bean
CATCHWORDS
VETERANS’ AFFAIRS – Widow’s pension – Veteran died from lung cancer – Material suggests veteran took up smoking soon after joining the RAAF and partly as a result of the stress of adjusting to service life – Connection between service and smoking raised – Contention of a contribution from service to veteran’s death upheld by the SoP – Veteran’s death defence-caused and eligibility for pension established – Decision under review set aside.
LEGISLATION
Veterans’ Entitlements Act 1986, 70(1) and (5), 120(4), 120B, 120B(1) and (3)(a), 196B(3) and (14)
CASES
Collins v Repatriation Commission (2009) 177 FCR 280
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Law (1980) 31 ALR 140
Gilkinson v Repatriation Commission [2011] FCAFC 133
Military Rehabilitation and Compensation Commission v Wall (2005) FCAFC 127 (2005); 88 ALD 1
REASONS FOR DECISION
Senior Member K Bean
Lt Col R Ormston (Rtd) (Member)
17 February 2012
INTRODUCTION

The applicant, Mrs Willoughby, was married to Mr Michael Willoughby from May 1979 until his untimely death in September 2009 as a result of lung cancer when he was only fifty-three years old. Mr Willoughby served in the Royal Australian Air Force (RAAF) for six years between October 1974 and October 1980, and this application relates to Mrs Willoughby’s claim for a widow’s pension on the basis that Mr Willoughby’s death was related to his service. In particular, Mrs Willoughby seeks to establish that Mr Willoughby’s death was a consequence of him smoking and that he took up and became addicted to smoking as a result of his service.
Her claim was lodged on 20 November 2009 but was not accepted by the Repatriation Commission or the Veterans’ Review Board (VRB). On 10 January 2011, she lodged an application with this Tribunal seeking review of the decision of the Repatriation Commission, as affirmed by the VRB, giving rise to these proceedings.
Before addressing the issues which arise in this matter, we propose to first outline the applicable legislative scheme.
LEGISLATIVE SCHEME
Section 70(1) of the Veterans’ Entitlements Act 1986 (the VE Act) provides relevantly that where the death of a veteran was "defence-caused", the Commonwealth is liable to pay a pension by way of compensation to the dependants of the veteran in accordance with the terms of the VE Act.
Section 70(5) provides relevantly that for the purposes of the VE Act, the death of a veteran shall be taken to have been "defence-caused" if :
(a) the death………..arose out of, or was…

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.

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Details

Case: [2012] AATA 97
Decision Date: 17 February 2012

CaseChat Overview and Summary

The case involved Penelope Ann Willoughby and the Repatriation Commission, with the dispute centering around the eligibility of Mrs Willoughby for a widow’s pension following the death of her husband, Mr Willoughby, who was a veteran. Mr Willoughby died from lung cancer, and the central issue was whether his service in the Royal Australian Air Force contributed to his smoking habit, which in turn contributed to his death. The matter was brought before the Administrative Appeals Tribunal in Australia.

The legal issues the court needed to address were whether Mr Willoughby’s smoking was connected to his service in the military and if this connection contributed to his lung cancer and subsequent death. Additionally, the court had to determine if Mr Willoughby’s death was "defence-caused" under the Veterans' Entitlements Act 1986 (Cth), thereby making Mrs Willoughby eligible for a widow’s pension.

The court found that Mr Willoughby’s lung cancer was a result of his smoking, which began soon after he joined the RAAF. The tribunal held that the stress of adjusting to service life may have contributed to his smoking habit, establishing a link between his military service and his smoking. The connection between his service and his death was upheld by the Secretary’s Instrument No. 18 of 2006, which provides guidelines for determining defence-caused deaths. Consequently, the court concluded that Mr Willoughby’s death was indeed defence-caused, making Mrs Willoughby eligible for a widow’s pension.

The decision of the tribunal set aside the previous decision and determined that Mr Willoughby’s death was defence-caused, thus establishing Mrs Willoughby’s eligibility for a widow’s pension with effect from 24 September 2009, the day after Mr Willoughby's death.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We have concluded that the cause of Mr Willoughby’s death was “malignant neoplasm” or cancer of the lung and that one of the major contributing factors to that disease was the fact that Mr Willoughby smoked during and after his service. We have also concluded that the material raises a connection between Mr Willoughby’s service and his smoking, and further that the contention of a connection between his death and his service is upheld by the applicable SoP, Instrument No. 18 of 2006. It follows that Mr Willoughby’s death was “defence-caused” within the meaning of the VE Act and Mrs Willoughby is accordingly entitled to a widow’s pension pursuant to s 70 of the VE Act. We note that the earliest date from which Mrs Willoughby can be paid a pension is 24 September 2009, the day after Mr Willoughby passed away.DECISION The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Willoughby’s death was defence-caused and therefore Mrs Willoughby is eligible to be paid a widow’s pension, with a date of effect of 24 September 2009.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number(s)	2011/0085
Re	PENELOPE ANN WILLOUGHBY
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Senior Member K Bean Lt Col R Ormston (Rtd) (Member)
Date	17 February 2012
Place	Adelaide