Silver and Repatriation Commission

[2005] AATA 779

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/239

VETERANS' APPEALS DIVISION		)
Re		KATHERINE SILVER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member
Dr P Lynch, Member

Date16 August 2005

PlaceSydney

Decision The decision under review is set aside and in substitution the Tribunal decides that the veteran’s death was war-caused.

…………………………………
  Ms R Hunt
  Presiding  Member

CATCHWORDS

VETERANS' ENTITLEMENTS – Claim by widow - Cause of death –Balance of probabilities - Death caused by or contributed to by war caused exposure to asbestos – Asbestosis – Reasonable hypothesis – Onus on Respondent to disprove - Decision under review set aside.

LEGISLATION
Veterans’ Entitlements Act 1986 s120

CASES
Fitzgerald v Penn (1954) 91 CLR 268
Chappel v Hart (1998) 195 CLR 232
R v Malcherek and Steel [1981] 1 WLR 690
Repatriation Commission v Hancock (2003) 37 AAR 383
Spencer v Repatriation Commission (2002) 74 ALD 362
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Brown v Repatriation Commission [2003] FCA 1130

REASONS FOR DECISION

16 August 2005                   Ms R Hunt, Senior Member

Dr P Lynch, Member

SUMMARY

1.      The Applicant in this matter, Mrs Katherine Annie Silver, is the widow of the late veteran, Mr Howard Silver.  Mr Silver served with the RAAF during 1943 to 1946. He died on 20 October 2002. Mrs Silver applied for a war widow’s pension, on 2 December 2002, on the basis that her husband’s death was brought about by his exposure to asbestos during his service in the RAAF. A delegate of the Respondent refused Mrs Silver’s claim on 13 December 2002 and the Veterans’ Review Board affirmed this decision on 4 February 2004. The Tribunal has reviewed the decision and has found that Mr Silver’s death was related to his war service. This means that Mrs Silver’s claim is successful.

BACKGROUND AND EVIDENCE BEFORE TRIBUNAL

2.        The facts available in this matter are sparse. The Respondent accepts that Mr Howard Silver had operational service from 19 April 1943 to 8 February 1946. He married Katherine Annie Silver on 29 January 1944. When Mr Silver died on 20 October 2002, a death certificate, issued on 4 November 2002, stated the cause of death as respiratory failure, pulmonary fibrosis and cause unknown. Medical records before the Tribunal are described and analysed below. Also before the Tribunal was a historian’s report of Brendan O’Keefe, dated 23 November 2004, that said, at page 5:

“Mr Silver may well have been exposed to some respirable asbestos during his work in the RAAF. This exposure may have been to relatively small amounts of asbestos, but it could have extended over the period from when he commenced training as Fitter in May 1943 until he left No. 2 Flying Boat Repair Depot in January 1946.”

ISSUE

3.        The issue before the Tribunal is whether Mr Silver’s death was caused by events during his war service. Mr Silver had no accepted war caused…