French and Repatriation Commission [2000] AATA 16 (17 January 2000)

Last Updated: 1 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 16

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/50

VETERANS' APPEALS DIVISION )

Re ERNEST GRAEME FRENCH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr C P Webster (Senior Member)

Date 17 January 2000

Place Hobart

Decision The Tribunal sets aside the decision of the Repatriation Commission dated 24 March 1997 and substitutes a decision that the applicant's ischaemic heart disease was war-caused. The date of effect of this decision is 20 November 1996.

..............................................

Senior Member

CATCHWORDS

Veterans' Appeals - entitlement - whether ischaemic heart disease war-caused- whether smoking habit commenced during operational service.

Veterans' Entitlements Act 1986 - s.120(3)

REASONS FOR DECISION

17 January 2000 Mr C P Webster (Senior Member)

Issues

1. Mr Ernest Graeme French ("the applicant") seeks a review of a decision of the Repatriation Commission ("the respondent") dated 24 March 1997 which determined that ischaemic heart disease suffered by the applicant was not war-caused.

2. The applicant also disputed the respondent's decision rejecting rheumatoid arthritis as war-caused, but that claim was abandoned at the hearing of the review.

3. The issue to be determined by the Administrative Appeals Tribunal ("the Tribunal") is whether ischaemic heart disease suffered by the veteran was war-caused.

4. The veteran served in the Royal Australian Navy from 13 January 1958 to 4 July 1964. Parts of his service were outside Australia and were operational service and therefore for those periods of service the application is to be determined on the basis of whether or not there is a reasonable hypothesis under s.120(3) of the Veterans' Entitlements Act 1986 ("the Act").

5. For the periods which did not constitute operational service the application is to be decided to the Tribunal's reasonable satisfaction.

6. It was submitted by counsel for the applicant that the relevant Statement of Principle is 140 of 1996.

7. It is of some controversy as to which Statement of Principle applies as there has been a subsequent Statement of Principle to the date that the claim was lodged. The question of which Statement of Principle applies in such cases is presently being considered by the Full Court of the Federal Court in the matter of Keeley v Repatriation Commission.

8. The decision of Heerey J in that matter, at first instance, that the Statement of Principle applicable at the time that the application is lodged is the applicable Statement of Principle is binding on the Tribunal and the Tribunal will therefore proceed on that basis.

The Evidence

9. The T documents were tendered into evidence.

10. The applicant gave oral evidence.

11. The applicant's evidence was that:-

(a) He was aged 17 when he joined the Navy on 12 January 1958.

(b) Prior to joining the Navy the applicant had not smoked cigarettes.

(c) The applicant smoked his first cigarette on the HMAS Anzac whilst on passage to Japan when caught between two typhoons when a shipmate suggested that the applicant smoke to steady his nerves.

(d) Following that introduction to cigarettes he only smoked 1 to 2 cigarettes per day until the HMAS Anzac, whilst on manoeuvrer, narrowly avoided a collision.

(e) Following that near collision, the applicant began smoking 20-25 cigarettes per week.

(f) Later the applicant served on the HMAS Vampire when it was in Saigon. During this period he was particular nervous due to exposure to danger and increased the number of cigarettes he smoked to 3 packets per day.

(g) The applicant continued to consume cigarettes at that rate until 1986 when he finished smoking.

12. The applicant was subjected to a vigorous cross-examination particularly regarding inconsistencies with his evidence given at the Veterans' Review Board ("the VRB") hearing.

13. The tape recording of the applicant's evidence at the VRB was adduced into evidence by the Department's Counsel.

14. The applicant's explanation of discrepancies in his evidence before the VRB and the Tribunal was that he was stressed when he attended before the VRB.

15. Mr Peter William Jones gave evidence. His evidence was as follows:-

(a) He enlisted in the Navy in November 1957 and was in the same intake as the applicant.

(b) At that time neither Mr. Jones nor the applicant smoked cigarettes and to Mr. Jones' knowledge the applicant did not smoke during recruit training.

(c) Later on both Mr. Jones and the applicant's service career the two men met occasionally. By that time the applicant was a regular smoker of cigarettes.

Application of the Law

16. As the applicant was engaged in operational service, his claim must be considered under sub-sections 120(1) and (3) of the Act for those periods during which he was engaged in operational service. The Tribunal is required to determine that the ischaemic heart disease was war-caused if there is a reasonable hypothesis that it was caused by his service during the relevant periods of operational service on the HMAS Anzac and HMAS Vampire, unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

17. It is common ground between the parties that if the applicant's version of events is accepted then he satisfies the criteria set out in Statement of Principle No. 140 of 1996 for establishing that his ischaemic heart disease was war-caused.

18. In the present case the applicant in his oral evidence raises material which raises a hypothesis that the applicant commenced smoking while on operational service on the HMAS Anzac and HMAS Vampire. There is evidence namely, the applicant's own evidence to the VRB which does not support that hypothesis and indeed points to the applicant commencing smoking at another time.

19. It is sufficient however to establish a hypothesis that some evidence exists to raise a reasonable hypothesis. In this case the evidence of the applicant before the Tribunal and supported by that of Mr. Jones raises a reasonable hypothesis.

20. Having decided that a hypothesis has been raised the Tribunal is required to determine whether the hypothesis between the connecting ischaemic heart disease and operational service is reasonable. The Tribunal is not required to choose between competing hypothesis at this stage. The Tribunal determines that the hypothesis raised by the applicant is reasonable.

21. The Tribunal having decided that the hypothesis is reasonable must allow the claim unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

22. In this matter the applicant's credibility was vigorously attacked by counsel for the respondent who pointed to contradictory evidence that the applicant had given to the Tribunal and the VRB.

23. If the Tribunal were to be satisfied beyond all reasonable doubt that the veteran's version of events to the Tribunal was not correct the reasonable hypothesis would be rebutted. The Tribunal has considerable concerns regarding the credibility of the applicant. On a different standard of proof the applicant may not have been successful in this application, however the Tribunal is not satisfied beyond all reasonable doubt that the applicant was not truthful in his evidence to the Tribunal. The Tribunal also notes that the applicant's version was supported by Mr. Jones, although to a limited extent.

24. In the circumstances the reasonable hypothesis established by the applicant has not been set aside.

Determination

25. That the decision of the Repatriation Commission dated 24 March 1997 be set aside and substituted with a decision that the applicant's ischaemic heart disease was war-caused. The date of effect of this decision is 20 November 1996.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 23 September, 23 November 1999

Date of Decision 17 January 2000

Solicitor for Applicant Mr R Webster

Solicitor for the Respondent Mr M Castle