Talbot and Repatriation Commission - [2005] AATA 1116

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1116
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1363

VETERANS' APPEALS DIVISION )

Re JOYCE TALBOT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Robin Hunt
Date11 November 2005
PlaceSydney

Decision The tribunal affirms the decision under review.
..............................................
Ms R Hunt
Senior Member

CATCHWORDS
VETERANS’ APPEALS - War widow’s pension – Cause of death Ischaemic Heart Disease – Claim that veteran’s increased smoking was a result of stress of service - Claim that war-caused death – No sufficient ground to determine death was war-caused – Decision under review affirmed.
legislation
Veterans’ Entitlements Act 1986
Statement of Principles concerning Ischaemic Heart Disease (Instrument No 53 of 2003)
cases
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Gleeson and Repatriation Commission (1995) 41 ALD 726
Bull v Repatriation Commission [2001] FCA 1832
McLean v Repatriation Commission [2001] FCA 1505
Meehan v Repatriation Commission [2003] FCA 1371
REASONS FOR DECISION

11 November 2005 Senior Member Robin Hunt

SUMMARY

1.      Mrs Joyce Talbot, claims her late husband, Mr Alan Reeson Talbot, died from a war-caused disease and that she is entitled to a war widow’s pension on this basis. Official records show Mr Talbot was an outstanding officer who rendered operational service in the RAAF during 1942 to 1945. Mrs Talbot acknowledges that Mr Talbot was a smoker when he entered service but claims that her husband’s smoking habit increased during service due to stress and other factors. He continued smoking until 1982 and died in 1985. A cause of Mr Talbot’s death was ischaemic heart disease, which may be related to his smoking. If Mr Talbot’s smoking habit arose from or became worse due to his service, his death may be attributable to his war service. However, the tribunal has decided that Mr Talbot’s smoking was not attributable to his service. The tribunal is satisfied beyond reasonable doubt that that there is no sufficient ground for determining Mr Talbot’s death was war-caused. This means that Mrs Talbot’s claim has failed. The reasons are set out more fully below.
BACKGROUND
2.       Mr Talbot served in the Royal Australian Air Force (RAAF) from 30 March 1942 until 30 November 1945. He performed operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act) during this period. Mr and Mrs Talbot met in 1950 and were married in 1959. Mr Talbot died on 3 May 1985. The certificate of death records the causes of his death as:
(a)Myocardial ischaemia
(b)Severe coronary atherosclerosis and thrombosis
(c)Carcinoma of the right lung with invasions of heart, superior vena caval obstruction and pneumothorax
(d)Perforated duodenal ulcer with peritonitis

ISSUES
3. The main issue for the tribunal is whether Mr Talbot had a war-caused smoking habit. The tribunal must decide first whether the material before it points to a hypothesis connecting Mr…

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.

Continue reading Talbot and Repatriation Commission

Details

AGLC: Talbot and Repatriation Commission [2005] AATA 1116
Case: [2005] AATA 1116
Decision Date: 11 November 2005

CaseChat Overview and Summary

The Tribunal was asked to review a decision regarding a claim for a war widow’s pension. The deceased veteran had passed away due to ischaemic heart disease, and the applicant claimed that his increased smoking was a result of the stress of his service. The argument was that his death was war-caused, and therefore, the applicant was entitled to the pension. The case was heard in the Federal Circuit Court of Australia, with Talbot being the applicant and the Repatriation Commission the respondent.

The primary legal issue was whether there was sufficient evidence to determine that the deceased veteran’s death was caused by his war service. The applicant argued that the veteran’s smoking habits increased due to the stress of his service, which subsequently led to his ischaemic heart disease and death. The Tribunal was tasked with examining the evidence presented and determining whether it was sufficient to establish a causal link between the veteran’s service and his death.

The Tribunal carefully reviewed the evidence provided and concluded that there was insufficient evidence to determine that the veteran’s death was war-caused. The Tribunal found that while the veteran’s smoking habits may have increased due to the stress of his service, there was no direct evidence linking his smoking to his ischaemic heart disease or his death. The Tribunal held that the applicant had not provided sufficient evidence to establish a causal connection between the veteran’s service and his death, and therefore, the claim for a war widow’s pension was not substantiated.

The tribunal affirmed the decision under review, denying the claim for a war widow’s pension. The Tribunal found that the evidence presented was insufficient to establish a causal link between the veteran’s service and his death, and therefore, the applicant’s claim was not substantiated. The decision highlights the importance of providing clear and compelling evidence to establish a causal connection between a veteran’s service and their death in order to be eligible for a war widow’s pension.

Orders

Orders of the court

The tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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