Twible and Repatriation Commission [2003] AATA 117 (7 February 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 117

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/374

VETERANS' APPEALS DIVISION	)
	Re	FREDA TWIBLE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member K L Beddoe

Date 7 February 2003

Place Brisbane

Decision

The Tribunal sets aside the decision under review and substitutes a decision that the death of ERIC SYDNEY TWIBLE was war caused. The date of effect is 29 September 1997.

(Sgd) K L Beddoe

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - benefits and entitlements - whether veteran's death was caused by his defence service - whether veteran rendered operational service - whether veteran engaged in combat against the enemy

Veterans' Entitlements Act 1986 ss 6, 8, 120

Pammett v Repatriation Commission (1996) 43 ALD 565

McKeown v Repatriation Commission (1995) 39 ALD 30

Younger v Repatriation Commission (1992) 28 ALD 211

Statement of Principles:

Instrument No 22 of 1999

Instrument No 53 of 1999

REASONS FOR DECISION

7 February 2003

Senior Member K L Beddoe

1. The applicant seeks review of a decision that the death of her husband ("the veteran") was not related to his service in the Australian Army.

2. Section 8(1) of the Veterans' Entitlements Act 1986 ("the Act") relevantly provides that for the purposes of the Act, the death of a veteran shall be taken to be war-caused, if the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service, or the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.

3. Section 6A of the Act defines operational service in relation to the World Wars. So far as is relevant it provides that a member of the Defence Force is taken to have been rendering operational service during any period during which the member was rendering:

"(d) continuous full-time service rendered within Australia during World War 2 in such circumstances that the service should, in the opinion of the Commission, be treated as service in actual combat against the enemy."

Where it is claimed that the death of a veteran relates to operational service rendered by the deceased veteran the claim is to be accepted unless the Tribunal is satisfied, beyond reasonable doubt that there is no sufficient ground for coming to that decision (s 120(1)).

4. That test will be satisfied if after considering all the material before it the Tribunal is satisfied that the material does not raise a reasonable hypothesis connecting the Veteran's death with the operational service rendered by the deceased veteran (s 120(3)).

5. An hypothesis put forward connecting the veteran's death to the operational service will be a reasonable hypothesis if it comes within the terms of a Statement of Principles determined by the Repatriation Medical Authority (s 120A).

6. If, however, the deceased veteran did not render relevant operational service then the claim must be determined, to the reasonable satisfaction of the Tribunal, having regard to the material before the Tribunal, and a relevant statement of principles upholds the contention that there is a relevant connection with eligible war service (s 120B).

7. At the hearing on 19 September 2002, Mr Wall represented the applicant and Mr Smith represented the respondent Commission. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and Dr Grant, Senior Medical Officer (Compensation).

8. The veteran was born on 22 July 1919 and died on 28 September 1997. Cause of death was certified as:

Cause of Death Respiratory Failure (2 days)

Antecedent Causes Bilateral Aspiration (4 days) pneumonia

Other Significant Diffuse gastritis and upper gastrointestinal bleed

Conditions

9. The veteran was called up for full-time duty in the Australian Army on 28 June 1941 and was discharged on 31 October 1945. He was posted for coastal defence duties and was stationed at Goode Island or Thursday Island from 11 August 1941 to 31 October 1942. Throughout this period the veteran served as a gunner with the Royal Australian Artillery units located on Thursday Island and Goode Island. The batteries operating on these islands were primarily for defence of the sea lanes rather than defence from air attack.

10. Horn Island which is contiguous to Thursday and Goode Islands had an airfield and became the target of Japanese air raids including air raids on the following relevant dates. While it is reasonable to assume that the Japanese bombers were concerned to attack Horn Island it is apparent from the material that bombs were also directed at and fell on Thursday Island. Details of the bombings in the material before the Tribunal include the following raids:

3 March 1942 Thursday Island

14 March 1942 Horn Island

15 March 1942 Thursday Island

20 March 1942 Thursday Island

30 April 1942 Horn Island

11 May 1942 Horn Island

7 July 1942 Horn Island

30 July 1942 Horn Island

11 August 1942 Horn Island

27 August 1942 Thursday Island

18 June 1943 Horn Island (bombs in sea)

11. The heaviest raid took place on 14 March 1942 when seventeen Japanese aircraft attacked the airfield on Horn Island. Eleven aircraft also attacked the airfield on 30 April 1942 and it was attacked again on 11 August 1942 by thirteen aircraft. Sixteen Japanese aircraft dropped some two hundred fragmentation bombs on the RAAF base. It seems at least some of the other raids were by single Japanese aircraft.

12. It seems that air alerts were commonplace and occurred more frequently than the listed raids set out above. It maybe (on the basis of Exhibit 1) that the above list of bombing raids is not complete or may only record successful bombing raids. Professor McCarthy says that Horn Island was bombed on 10 and 18 March 1942, dates not included in the above list. The material evidenced by Professor McCarthy suggests the raids were directed to Horn Island but Goode Island (where the veteran was stationed) was under the flight path of the Japanese aircraft.

13. While the veteran was a gunner he was not an anti-aircraft gunner, on the basis of Professor McCarthy's report. I am satisfied that it is more likely than not that the veteran was a gunner on coastal defence duties as distinct from air attack defence. That is consistent with the veteran's subsequent transfers to the heavy battery at Bribie Island which was a coastal defence battery, and the Fort Lytton heavy battery, also a coastal defence battery.

14. It is likely, as Professor McCarthy suggests, that at the time of Japanese air raids over Goode Island (and possible Thursday Island) the veteran was required to take cover rather than engage the enemy as the anti-aircraft batteries (if any) would be required to do.

15. Certainly the veteran faced the hostile forces of the enemy and but for the outcome of the Battle of the Coral Sea, would have probably been in a combat zone involving attack by sea and air.

16. A smoking questionnaire completed by the applicant in 1997 said that the veteran commenced smoking in 1941 and ceased in 1975. In her oral evidence the applicant resiled from this document because, she said, unbeknown to her the veteran had continued smoking away from home after 1975.

17. The applicant's evidence about the veteran's smoking history raises an issue as to her credit. In her written statement signed on 10 September 2001 she said:

"Eric continued to smoke until, I believe, the 1970's"

However, the applicant gave oral evidence to the effect that a couple of years back (from the date of hearing) and prior to making her statement, one of the veteran's "mates" had told her that the veteran had kept cigarettes at the bowling club and had continued to smoke there. That evidence contradicts the signed statement. The "mate" was not named at the hearing but in my view should have been called to clarify the conflict in the applicant's evidence.

18. Clinical notes at folio 37 of the T documents record smoking for 50 years at 5 August 1981. I am prepared to accept that the veteran continued smoking after the 1970s behind the applicant's back. Such covert smoking probably ceased in 1989. I do not accept that the veteran had been smoking for 50 years as at 1981 but I do accept that he was still smoking in 1981.

THE MEDICAL EVIDENCE

19. The medical examination prior to discharge, dated 19 October 1945, records that the veteran suffered dysentery while at Goode Island and that he also suffered tropical ulcers in 1941. A further medical history records dengue fever from 4 April 1942 to 9 April 1942 - dates consistent with Professor McCarthy's statement that the veteran was hospitalised on Thursday Island from 20 March 1942 to 10 April 1942.

20. Dr Grant has summarised the medical evidence in reports dated 8 April 2002 and 17 September 2002 together with his oral evidence. Dr Grant said that a barium meal test in 1980 did not suggest a peptic ulcer. But, Dr Grant said, it was apparent from the medical records that the veteran had ongoing problems with his stomach because a number of investigations were conducted between 1980 and 1997. Biopsies in 1991 showed chronic gastritis with Helicobacter Pylori organisms but no evidence of dysplasea, malignancy or an ulcer.

21. Dr Grant noted that the veteran had been treated with high dosage aspirin in the 1980s and low dosage aspirin thereafter. An endoscopy in 1988 was clear but an endoscopy in 1991 revealed gastritis which Dr Grant attributed to the Helicobacter Pylori. Those investigations did not reveal peptic ulceration.

22. Dr Grant said that the use of aspirin would be a causal factor contributing to gastro intestinal bleed.

CONSIDERATION

23. I accept that the veteran did not serve outside Australia or in circumstances that would bring the veteran's service within the terms of item 1 in subsection 6A(1) of the Act. In particular I am not satisfied that the veteran's service on Goode Island (and Thursday Island) was such that the service should be treated as service in actual combat against the enemy.

24. It may be presumed and accepted that the veteran witnessed Japanese aircraft attacking Horn Island but there is nothing to suggest that the veteran undertook any duties akin to engaging in combat against the enemy. He was assigned to coastal sea defences. Further the Japanese aircraft did not attack Goode Island or Thursday Island when he was there (Exhibit 1). The air attacks were directed at the Air Force base on Horn Island.

25. I am not satisfied that the circumstances of the veteran's service were such that it should be treated as service in actual combat against the enemy.

26. In Pammett v Repatriation Commission (1996) 43 ALD 565 it was accepted that the veteran was on either Horn Island or Thursday Island on 19 June 1943 when the Japanese aircraft attacked Horn Island. In that case there was uncertainty as to whether the attack took place on 18 or 19 June. The Tribunal found 19 June and the Federal Court adopted that date. I am satisfied that was the same attack as I have found occurred on 18 June 1943. While the provision has been the subject of revision - previously it was paragraph 6(1)(n) - I am satisfied, on the basis of the dicta of the Court, that item 6A(1)(i)(d) counts as operational service, that service which the veteran rendered in such circumstances should, in the Commission's opinion, be treated as service in actual combat against the enemy (see Re Pammett at 570).

27. In McKeown v Repatriation Commission (1995) 39 ALD 30 the claimed period of operational service was rejected because the veteran had merely manned a gun while on board two ships for a few days and there was an apprehension or fear of combat with the enemy.

28. In Younger v Repatriation Commission (1992) 28 ALD 211, Olney J is reported as finding that the Tribunal, in concluding that the applicant's service on only two days should be treated as service in actual combat against the enemy, had not misconstrued or misapplied paragraph 6(1)(n).

29. Each of the decisions cited, although not directly in point, satisfies me that a mere perception of, or proximity to, enemy action is not sufficient to justify an exercise of the discretion to deem operational service. A favourable exercise of discretion should embrace circumstances of actual combat and circumstances of actual preparation for imminent combat. Mere proximity to combat is not, in my view, sufficient when, on the material, it is more likely than not that combat would not take place.

30. It follows that the applicant's claim is to be decided to the Tribunal's reasonable satisfaction.

31. I am so satisfied that the veteran's smoking habit was service related because it is more likely than not that he became a regular user of tobacco during service.

32. As already indicated it is less certain as to when the veteran ceased smoking. Given the nature of the Act, being beneficial legislation, and keeping an eye on paragraph 199(1)(h) of the Act, I am prepared to accept that the veteran did not give up his smoking habit until, say, 1989, albeit that he ceased smoking in front of the applicant at a much earlier time.

33. It follows I can be satisfied that it is more likely than not that the veteran was smoking at least ten cigarettes per day at the time of the clinical onset of peptic ulcer disease as defined in SoP Instrument No 21 of 1999.

34. In his evidence, Dr Grant said that he had been unable to find evidence of an ulcer before 1997. He did note a number of investigations from 1980 which indicated that the veteran was having stomach problems. He conceded that small ulcers could be missed by the procedure followed in 1980. An endoscopy in 1988 showed no abnormality.

35. On the material before me I cannot be satisfied that the clinical onset of peptic ulcer disease occurred while the veteran was smoking at least ten cigarettes per day.

36. In so far as it was sought to suggest that heavy dosages of aspirin in years prior to death were causative of the peptic ulcer disease I have to be satisfied that the aspirin intake arose out of circumstances relevant to the veteran's service.

37. It seems, and I accept, that low dosage aspirin was prescribed after the veteran had a stroke in 1996. I infer that the veteran continued to take low dosage aspirin on a daily basis until his death so that the diagnosis of duodenal ulcer in 1997 is relevant to a finding of death from peptic ulcer disease as defined.

38. I am satisfied that it is more likely than not that the veteran ceased smoking on a regular basis some time proximate to 1989. It seems on the material before me that the veteran smoked covertly away from his wife. As already noted it would have been better if there had been more direct evidence about this rather than the Tribunal being left to consider what weight it should give to hearsay.

39. However I am satisfied that it more likely than not that the veteran's smoking history was such as to satisfy a finding that factor 5(k)(i) of SoP Instrument No 53 of 1999 is satisfied, the smoking being related to the veteran's service.

40. As I am satisfied that the veteran's stroke can be related to his war service because the requirements of Instrument No 53 of 1999 have been satisfied, and because I am satisfied on the balance of probabilities that the veteran had been taking low dosage aspirin from the time of the stroke and am satisfied that factor 5(c) of Instrument 22 of 1999 is satisfied.

41. I am therefore satisfied that the veteran's death was in part caused by gastrointestinal bleeding caused by peptic ulcer disease which I am satisfied was war caused.

42. The decision under review will be set aside and I will substitute a decision to the effect that the death of Eric Sydney Twible was war caused.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe

Signed: Sarah Oliver

Associate

Date of Hearing 19 September 2002

Date of Decision 7 February 2003

For the Applicant Mr Wall, Solicitor

For the Respondent Mr Smith, Departmental Advocate