Re: REPATRIATION COMMISSION And: NANCY LAW (1980) 47 FLR 57 No. W.A. G20 of 1980 War Widows Pension - Superannuation and Pensions
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION Bowen C.J.(1), Brennan(1) and Lockhart(1) JJ.
CATCHWORDS
War Widows Pension - Member of the Forces - Death of member caused by carcinoma due to smoking - Smoking commenced during war service - Connection between death and occurrence during war service - Meaning of "occurrence" - Connection between death and war service - Standard of proof under Repatriation Act 1920. Repatriation Act 1920 (Cth.) ss.23, 24, 27, 47, 101, 107VG, 107VH, 107VZZH.
Superannuation and Pensions - War widows pension - Death of former member of Armed Forces from carcinoma - Smoking commenced during war service - Whether death resulted from any "occurrence" during war service - Whether smoking, or habit of smoking an "occurrence" - Whether death has "arisen out of or is attributable to" war service - Standard of proof - Repatriation Act 1920 (Cth), ss. 23, 24, 27, 47, 101, 107DG, 107VH, 107VZZH.
HEADNOTE
On 15th September, 1976, James Law ("the deceased") died of carcinoma of the lung with myocardial infarction as a contributing cause. The respondent (his widow) applied for a pension under s. 101 of the Repatriation Act 1920 ("the Act") claiming that smoking attributable to war service had caused the carcinoma which led to his death. From June 1940 the deceased had been a member of the Armed Forces; in 1942 he became a prisoner of war of the Japanese; after release in August 1945 he was discharged from service in 1946. At that time he was in a wretched physical condition and he remained in poor health for the rest of his life. Prior to enlisting the deceased had not smoked: by the time of his repatriation to Australia he had begun to smoke heavily. Until a heart attack in 1973 he smoked twenty cigarettes a day; thereafter his smoking was reduced.
The Repatriation Review Tribunal upheld the decision of the Repatriation Commission refusing a pension and decided against the respondent's claim. On appeal to the Federal Court, Toohey J. held that the respondent was entitled to a pension.
On appeal to the Full Court,
Held, dismissing the appeal: (1) Where the death of a former member of the Armed Forces might have arisen out of war service or might be attributable to such service, a pension cannot be refused unless it is proved beyond reasonable doubt that the death was not so related to the war service.
Section 107VH (2) of the Act considered. (2) In order to be satisfied beyond reasonable doubt that there are insufficient grounds for granting a claim or application the Repatriation Review Tribunal must apply the requisite standard of proof to each stage of its factual inquiry. Thus where, for example, a medical opinion is submitted to a Tribunal in an application for a pension or on an appeal from a refusal to grant…
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
AGLC
Repartration Commission v Nancy Law [1980] FCA 112 ((1980) 47 FLR 57)
Case
[1980] FCA 112
Decision Date
CaseChat Overview and Summary
The Repatriation Commission sought to review a decision that granted a War Widows Pension to the respondent, Mrs. Law, following the death of her husband, a member of the Australian Defence Force. Mrs. Law's husband died from carcinoma, a condition that developed due to his smoking habit, which began during his war service. The central issue was whether the death, caused by smoking, was connected to an "occurrence" during war service, thereby justifying the pension under the Repatriation Act 1920. The court needed to determine the scope of "occurrence" in this context and the standard of proof required to establish a connection between the death and the war service.
The court held that the term "occurrence" in the Act should be interpreted broadly to include any event that took place during the war service, including habits or conditions initiated during that period. The court found that the smoking habit, which began during the husband's service, was an occurrence, and the subsequent carcinoma resulting from smoking was connected to this occurrence. The court emphasised that the Act requires a connection, not necessarily a direct causation, between the death and the war service. The standard of proof needed to establish this connection was one of probability, rather than certainty. The evidence presented was sufficient to meet this standard, and the decision to grant the pension was upheld.
The appeal was dismissed, and the court ordered the appellant to pay the respondent's costs of the appeal. This ruling clarifies the interpretation of "occurrence" and the standard of proof under the Repatriation Act 1920, ensuring that the pension is granted where there is a probable connection between the war service and the condition leading to the member's death.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay to the respondent her costs of the appeal.