Winter and Repatriation Commission

[2011] AATA 278

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 278

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6069

VETERANS’ APPEALS  DIVISION		)
Re		Alice Winter

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal J W Constance, Deputy President 

Date27 April 2011

PlaceMelbourne

Decision The decision under review, being the decision of the Repatriation Commission made 3 January 2007, is set aside.  In substitution for the decision set aside it is decided that the death of the late Mr Winter on 10 June 1988 was “war-caused” within the meaning of the Veterans’ Entitlements Act 1986 (Cth).  

……...(Sgd J W Constance).......

Deputy President

VETERANS’ ENTITLEMENTS ACT 1986 – war widow’s pension – whether death “war caused” – Deledio test – death caused by bronchopneumonia – chronic bronchitis caused by smoking - decision set aside that death “war caused”.

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120 and 120A

Administrative Appeals Tribunal Act 1975 (Cth)

Hardman v Repatriation Commission (2004) 82 ALD 433
Re Dell v Repatriation Commission (1986) 9 ALD 596
Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 711

REASONS FOR DECISION

27 April 2011   J W Constance, Deputy President

INTRODUCTION

1.      Mrs Winter is the widow of the late Mr Winter who died on 10 June 1988.  From 3 September 1939 until 2 January 1949 Mr Winter rendered operational service as a member of the Royal Australian Navy.

2.      In 1999 Mrs Winter claimed benefits under the Veterans’ Entitlements Act 1986 (Cth) on the basis that her late husband’s death was “war-caused”.  The Repatriation Commission rejected this claim and the Veterans’ Review Board affirmed the Commission’s decision.

3.      For the reasons which follow the decision under review will be set aside and a decision that the late Mr Winter’s death was war-caused will be substituted.

MATERIAL BEFORE THE TRIBUNAL

Mrs Winter’s evidence

4.      Mrs Winter told the Tribunal that she first met Mr Winter in 1945 and that they married in 1950.  Mr Winter was a heavy smoker (smoking approximately 30 cigarettes per day) at the time they met and continued to smoke heavily until 1986 when he entered a Nursing Home.  He told Mrs Winter that he started smoking after he joined the Navy when he was given rations of cigarettes while on operational service.

5.      During the whole of the time Mrs Winter knew her husband he suffered a productive cough. She did not notice any change in the nature of the cough after Mr Winter was diagnosed as suffering from Parkinson’s disease in 1980.  He suffered from chest infections and bouts of bronchitis about four times per year.  These infections would subside after about a week, but the productive cough would continue. 

6.      Mrs Winter described Mr Winter as “always chesty”.  She gave evidence that Mr Winter would cough up sputum and that she soaked his handkerchiefs in salt water to remove the sputum.  Mrs Winter said that her husband did not go to see a doctor readily and…