Farley-Smith and Repatriation Commission

[2005] AATA 968

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 968

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/673

VETERANS' APPEALS  DIVISION		)
Re		GWENDA FARLEY-SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date4 October 2005

PlaceMelbourne

Decision The decision under review is set aside and in substitution it is decided that the death of William David Farley-Smith is war-caused.

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Senior Member

VETERANS’ ENTITLEMENTS – widow’s application – competing hypothesis – exposure to benzene conceded – finding of death by myelofibrosis – SOP not issued – whether a reasonable hypothesis – decision set aside

Veterans’ Entitlements Act 1986 (Cth) s 120

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrnes v Repatriation Commission (1993) 116 ALR 210

Commissioner for Government Transport v Adamcik (1961) 106 CLR 292

Prestegar v Repatriation Commission [1997] 762 FCA

Re Whitworth and Repatriation Commission [2002] AATA 861

East v Repatriation Commission (1987) 74 ALR 518

REASONS FOR DECISION

4 October 2005 Mr J Handley, Senior Member      

1.      The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) made on 5 May 2003.  The VRB then decided to affirm a decision previously made by the respondent on 7 March 2002 rejecting an application for widows pension.

2.      Mrs Farley-Smith applies as the widow of the late William David Farley-Smith who died on 14 November 2001.  The deceased was then 78 years of age having been born on 29 March 1923.  The certified cause of death was “myelofibrosis/4 years; oesophageal varice/2 years” (T4).

3.      The late Mr Farley-Smith served as a member of the Australian Army between 6 April 1942 and 8 August 1946.  Part of his service was in the Northern Territory and by reason of the location, the whole of his service is deemed to have been operational.

4.      The hypothesis advanced by the applicant’s representative prior to the commencement of the hearing was that service exposed the deceased to petroleum and benzene in the cleaning of guns, engines and machinery which precipitated myelofibrosis.  Another hypothesis was that the deceased smoked tobacco which produced benzene which he inhaled.  It was submitted that the deceased acquired a smoking habit by service.

5.      At the commencement of the hearing, Mr De Marchi who appeared on behalf of Mrs Farley-Smith, notified the Tribunal that another hypothesis was being pursued, namely, that the exposure to benzene in service precipitated a myelodysplastic disorder precipitating chronic myeloid leukaemia, which in turn precipitated myeloid fibrosis.

6.      It became evident after much discussion with Mr De Marchi and Mr Nyhof, who appeared on behalf of the respondent, that the Doctors engaged to provide medico-legal opinion had not been acquainted with the additional hypotheses.  It also became clear that the hearing would not conclude on 30 August 2004.  Accordingly it was decided to hear lay evidence only and adjourn the matter to date to be fixed.  In the meantime the three medico-legal witnesses would have the opportunity to consider the additional hypotheses.

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