Handby and Repatriation Commission

[2007] AATA 20

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 20

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1278

VETERANS'     APPEALS        DIVISION

Re:        JOYCE INA HANDBY

Applicant

And:        REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G.D. Friedman, Senior Member

Date16 January 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that the veteran’s death was war-caused and Mrs Handby is entitled to be granted widow’s pension with effect from 25 November 2003.

(sgd) G. D. Friedman

Senior Member

VETERANS' AFFAIRS ‑ widow’s entitlement ‑ death from mesothelioma and bronchopneumonia - obstructive airways disease - ischaemic heart disease - whether war‑caused

Veterans’ Entitlements Act 1986 ss 8(1), 120(1), (3), (4), 120A

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Doolette v Repatriation Commission (1990) 21 ALD 489
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Law (1980) 31 ALR 140

Roncevich v Repatriation Commission [2005] HCA 40

REASONS FOR DECISION

16 January 2007  G.D. Friedman, Senior Member

1. Joyce Handby, widow of John Ainsley Malcolm Handby (the veteran), has sought review of a decision by the Veterans’ Review Board dated 6 October 2004 affirming a decision of a delegate of the Repatriation Commission to refuse a claim for widow’s pension because the veteran’s death was not related to his service.

BACKGROUND

1. The veteran was born in India on 12 April 1926 and moved to England after one or two years.  His family migrated to Australia when he was aged 14 years, and he attended agricultural college before obtaining employment as a labourer on his father-in-law’s orchard.  He served in the Royal Australian Air Force (RAAF) from 6 June 1944 to 1 May 1946 as a telegraphist, and his service constitutes operational service under the Veterans’ Entitlements Act 1986 (the Act).  After discharge the veteran worked as a storeman in a motor vehicle business for four years before obtaining employment with the then State Electricity Commission (SEC) where he remained until his retirement at the age of 60 years.

2. The veteran died on 9 May 1997.  The cause of death was certified as:

   ·           bronchopneumonia – 24 hours; and

   ·           mesothelioma – 3 months.

3. At the time of the veteran’s death the following conditions were accepted as service‑related:

   ·cervical spondylitis;

   ·ischaemic heart disease; and

   ·hypertension

The following conditions were not accepted as being service-related:

·           lumbar spondylosis with sciatica; and

·           mesothelioma

ISSUE

1. The issue before the Tribunal is whether the veteran’s death was war‑caused as a result of obstructive airways disease, ischaemic heart disease or exposure to asbestos.

EVIDENCE

1. In a statement dated 17 November 2004 (Exhibit A1) Mrs Handby said that when she met the veteran in 1943 he was a non-smoker, but commenced smoking during service.  She estimated that he smoked 20 to 30 cigarettes per day when he was discharged, and she reported that he had told her he took up smoking after an incident in the Philippines when…