Falls, N.I. v Repatriation Commission [1988] FCA 268

te

JUDGMENT No. 28-7-Si=

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G439 of 1987

wwe ww

GENERAL DIVISION

BETWEEN: NORMA IRENE FALLS Appellant AND: REPATRIATION COMMISSION

Respondent

CORAM

FOSTER, J.

DATE: 13 MAY, 1988.

PLACE: SYDNEY. 2 OJUN 1988

FEDERAL COURT OF

AUSTRALIA Pon Pa, Pasi RY REASONS FOR JUDGMENT s . a ( EXTEMPORE ) HIS HONOUR: This is an appeal from a decision of the

Veterans Appeals Division of the Administrative Appeals Tribunal ("the Tribunal"), rejecting a claim for a pension brought by the appellant, Norma Irene Falls, against the respondent, the Repatriation Commission. The claim is brought under s. 8 of the Veterans Entitlements Act, 1986 ("the Act") in respect of the death of Mrs. Falls' husband, Maurice Terence Falls, on 27 March 1981, at the age of 58. Mr. Falls died of

bronchial asthma causing cardio-respiratory failure, chronic

2. obstructed airways disease and a gastric ulcer. There was no issue in the case that these conditions related to the deceased's heavy smoking of tobacco. The question was as to whether the deceased's smoking habit relevantly related to his

war service with the Australian Army.

It appears from uncontested evidence that the deceased had joined the Merchant Navy in 1940 at the age of fifteen. It further appears that he underwent highly stressful experiences over the next two years, being subjected to aircraft bombing, threats from submarines, and traumatic experiences resulting from being cooped up in close shipboard quarters with older seamen. He was on return to Australia in 1942 in a physically debilitated state and a highly nervous condition. He had commenced to smoke cigarettes and suffered to some extent from a resultant chest condition. He was erratic in his behaviour

and tended to be emotionally labile and abusive.