Warden and Repatriation Commission [2002] AATA 909 (11 October 2002)

Last Updated: 11 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 909

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/44

VETERANS' APPEALS DIVISION )

Re KENNETH WARDEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date 11 October 2002

Place Brisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the Tribunal's reasons for decision.

(Sgd) B J McCabe

Member

CATCHWORDS

VETERANS' AFFAIRS - pension - entitlement - whether the injury or illness the applicant is suffering from is war caused - ischaemic heart disease - whether reasonable hypothesis connecting disease with operational service

Veterans' Entitlements Act 1986

Davenport v Repatriation Commission [1997] FCA 918

REASONS FOR DECISION

11 October 2002 Mr B J McCabe, Member

Introduction

1. Kenneth Warden is suffering from ischaemic heart disease. He was a heavy smoker during his years of service with the navy, a fact that apparently contributed to the development of his coronary disease. He says he started smoking while on board HMAS Melbourne, an aircraft carrier, during a brief period in 1962 when the ship was on operational service as part of the Far Eastern Strategic Reserve.

2. The respondent did not deny Mr Warden smoked during his time in the navy, or that his heart disease was connected to his smoking. But it refused to accept Mr Warden's claim that he started smoking during his brief period of operational service in 1962. The Veterans' Review Board affirmed that decision. The applicant now asks the Tribunal to vary that decision. It follows the dispute turns on my assessment of the facts. The standard of proof applicable in this case is set out at ss 120(1) and (3) of the Veterans' Entitlements Act 1986.

The Material Before the Tribunal

3. The Tribunal was provided with the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The applicant also tendered statements prepared by Mr Warden and his wife, Marion Warden. The respondent tendered the transcript of evidence taken at the hearing before the Veterans' Review Board on 6 December 2001. I was also referred to the relevant Statement of Principles concerning ischaemic heart disease.

The Facts

4. The applicant enlisted in the Royal Australian Navy (the RAN) on 9 July 1951. He was discharged on 8 July 1971. He served on HMAS Melbourne from 28 November 1961 until late 1962. Between 28 February and 16 March 1962, the applicant rendered eligible service aboard the Melbourne. There was no dispute about the applicant's service.

5. Prior to serving on the Melbourne, he served on a variety of other vessels. He always served below decks on those ships, in the engineering spaces. When he transferred to the Melbourne in 1961, Mr Warden commenced his service below decks monitoring and maintaining machinery. He said in his evidence that it was routine, uneventful work. He said it was boring.

6. Mr Warden undertook training and accreditation in a number of specialist areas while serving on the Melbourne with a view to advancement. He also volunteered to serve on the flight deck. His responsibilities included fuelling operations and fire fighting and damage control. These tasks were new to him. He said it was stressful trying to master the new skills in the high-pressure environment of the flight deck.

7. Serving on the flight deck was much more dangerous and eventful than work below deck. The applicant said in his evidence that handling AVGAS (aviation fuel) was dangerous because of the constant risk of fire. There were also mishaps and accidents involving the aircraft on the flight deck. Sometimes planes would miss the arresting wires and bounce along the deck, or go over the side of the ship.

8. The applicant recalled one incident in particular during a period when the ship was on operational service. An aircraft had been involved in a rough landing and it spilled fuel over the flight deck. He and three colleagues in the refuelling team had to clean up the fuel in a hurry before it leaked below decks or caught fire. The pilot was rescued from the plane by another group of sailors.

9. Mr Warden said the incident was very stressful. After his watch, he retired to the canteen where he was offered a cigarette. He said he was so stressed that he took it, even though he had not smoked before. (He acknowledged under cross-examination that he had experimented with cigarettes as a boy, but he was not a smoker prior to taking it up on the Melbourne). He continued smoking thereafter with a few short breaks until he gave it up under doctor's orders in 1972. Although he was not a heavy smoker at first - he said he smoked perhaps a pack of cigarettes a week - he gradually increased his consumption top the point where he was considered a heavy smoker.

10. The applicant said he did not react to his first cigarette with the typical fit of coughing. He pointed out he had been serving in a smoke-filled environment for years. He found that smoking helped him deal with the stress.

11. The respondent accepted Mr Warden began smoking began while he was served on the Melbourne. Mrs Warden was able to confirm that much in her evidence. She said she was not happy to discover her husband had become a smoker when he returned home and took leave in the latter part of 1962. But the respondent did not accept Mr Warden commenced smoking during the brief period of operational service. Mr Smith for the respondent pointed out the events occurred forty years ago, and in the meantime the applicant has begun to suffer from the early stages of dementia after a long period of ill-health. Mr Smith referred in particular to the Federal Court's decision in Davenport v Repatriation Commission [1997] FCA 918 where Heerey J acknowledged that the Tribunal could take into account the applicant's health when assessing his reliability.

12. Mr Smith also referred to a number of apparent inconsistencies in the applicant's evidence to support the respondent's claims about the applicant's credibility. At the Veterans' Review Board hearing, the applicant suggested he had commenced smoking because of stress and the fact that he had just been promoted. The applicant conceded in the hearing before the Tribunal that he was not promoted in rank until May 1962, which was outside the relevant period. But he explained that his move to the flight deck, while not a promotion in rank or pay, was nonetheless regarded as an advance. I am satisfied after hearing his explanation that the earlier reference to a promotion is a reference to his new duties on the flight deck.

13. I am also unconcerned about the entry in the smoking questionnaire contained in the T-documents. Mr Warden signed a document suggesting he quit smoking in 1963. He said the form was completed for him by an RSL officer who misunderstood his instructions - perhaps because the officer in question was attempting to fill out forms on behalf of two veterans at the same time. I accept his explanation.

14. The applicant was candid about not recalling dates. I found him an honest witness. I note he is suffering from memory lapses, but these appear to be lapses in the short term memory. His recollection of events in the more distant past, if not his memory for dates, appears to be quite good. I am therefore satisfied he was able to fix the date he began smoking by reference to the accident with the aircraft that he remembered occurring during the relevant period. He also referred to two qualifications that he received: he received a qualification in refrigeration on 20 February 1962, and a further qualification in compressors. The compressor exam was held on 4 or 5 March 1962. Those dates were contained in the relevant records. Mr Warden said the incident with the plane happened after his first certificate but either just before, or at about the same time as, the compressor exam.

Consideration

15. Sections 120(1) and (3) of the Act combine to require that the decision-maker apply the reasonable hypothesis test in deciding a veteran's claim. That means, in effect, that a claim in respect of injury, disease or death related to eligible service must be found to have been caused by that service unless the decision-maker is satisfied beyond reasonable doubt there is no basis for making that determination. Section 120(3) goes on to provide the decision-maker shall be taken to be satisfied beyond reasonable doubt if there is a reasonable hypothesis connecting the injury, disease or death with the service rendered by the person.

16. When examining whether or not a reasonable hypothesis has been made out, s 120A requires the decision-maker to have regard to the relevant Statement of Principles (SoP) published by the Repatriation Medical Authority. In this case, the relevant SoP is Instrument No 38 of 1999.

17. I have considered the standard of proof imposed by ss 120(1) and (3) of the Act. The applicant's account is plausible, and I accept it is accurate. I am satisfied he took up smoking shortly after he transferred to the flight deck because of stress associated with his familiar duties and the high pressure environment. I am satisfied he was on operational service at the time. It follows I am satisfied the applicant's ischaemic heart disease is causally connected with his eligible service.

Conclusion

18. I set aside the decision of the Veterans' Review Board and remit the matter to be dealt with by the respondent in accordance with these reasons.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

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

Associate

Date of Hearing 4 October 2002

Date of Decision 11 October 2002

Solicitor for the Applicant Ms Haney, Streeting Haney Lawyers

Solicitor for the Respondent Mr Smith, Departmental Advocate