Bennett and Repatriation Commission

[2003] AATA 1319

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1319

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/801

VETERANS' APPEALS DIVISION		)
Re		FLORENCE BENNETT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date22 December 2003 

PlaceBrisbane

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the death of the late veteran, Herbert Bennett, was war-caused and that the applicant, Ms Florence Bennett, is entitled to receive a war widow's pension.

...................(Sgd)......................

EK Christie
  Member

CATCHWORDS

VETERANS' AFFAIRS – benefits and entitlements – war widows’ pension - whether war-caused death - malignant neoplasm of the stomach - Helicobacter pylori infection - hypothesis - reasonable hypothesis - facts associated with hypothesis necessary to support the hypothesis or which are inconsistent with the hypothesis have not been disproved beyond reasonable doubt – decision set aside

Veterans' Entitlements Act 1986, ss 120, 120A, 196B

Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation commission v Law (1980) 31 ALR 140
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Hancock [2003] FCA 711
Re Starcevich and Repatriation Commission (1986) 10 ALN 202
Re Doyle and Repatriation Commission (1986) 47 ALD 187
Jackman v Repatriation Commission [1997] FCA 564
Bushell v Repatriation Commission (1992) 175 CLR 408
Connors v Repatriation Commission [2000] FCA 783
Byrnes v Repatriation Commission (1993) 177 CLR 564
Re Thomas and Repatriation Commission [2003] AATA 65

REASONS FOR DECISION

22 December 2003  Dr EK Christie, Member    

1.      Herbert Bennett, the late veteran, passed away on 17 February 2000.  He was 79 years of age.  The applicant, his widow, claimed an entitlement to a pension under the Veterans’ Entitlements Act 1986 (“the Act”).  The Veterans’ Review Board, on 10 July 2001, determined the death of the veteran was not caused by his war service.

2.      The late Mr Bennett had no accepted or rejected service-related disabilities.

3.      Because of her hospitalisation, Florence Bennett could not attend the hearing.  At the hearing she was represented by her daughter, Ms Jacqueline Ferguson.  The respondent was represented by Mr M Smith, a Departmental Advocate.

4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.

Facts

5.      The general facts were not in dispute and may be stated briefly.  Florence Bennett is the legal widow of the late veteran.  The late Mr Bennett had operational service in World War II in New Guinea from 8 April 1942 to 25 September 1944.

6.      The late veteran suffered for many years from hypertension, ischaemic heart disease, cardiac arrhythmia and syncopal attacks (that is, blackouts).  He had a pacemaker inserted on 11 November 1999.  It was at this time that it was first discovered that he was suffering from stomach cancer.

7.      The cause of the late veteran’s death was certified as:

“1.       Disseminated gastric carcinoma

2.        Hypertension, pacemaker”  (Exhibit…