Knight and Repatriation Commission [2009] AATA 929 (18 November 2009)

Last Updated: 8 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 929

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5801

VETERANS' APPEALS DIVISION		)
	Re		JACQUELINE KNIGHT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen Dr Alexander, Member

Date 18 November 2009

Place Sydney

Decision

The decision under review is AFFIRMED.

...................[sgd]...........................
Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – was myocardial infarction materially contributed to by passive smoking – was death war-caused or connected to defence service - decision under review is affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 sections 6C, 68, 120, 120A

Statement of Principles concerning Ischaemic Heart Disease: Statutory Instrument Nos. 53 of 2003 (as amended by No.9 of 2004); 54 of 2003; 10 of 2004, 89 of 2007 and 90 of 2007

CASES

Kattenberg v Repatriation Commission [2002] 34AAR 562

Repatriation Commission v Newton [2008] FCA 401

Comcare v Canute [2005] FCAFC 266

REASONS FOR DECISION

18 November 2009

Senior Member M D Allen Dr Alexander, Member

1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.
   

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed: .............................[sgd]..................................................

K. Lynch, Associate

Date of Hearing 18 November 2009

Date of Decision 18 November 2009

Counsel for the Applicant Mr M Vincent

Solicitor for the Applicant Kemp & Co Lawyers

Counsel for the Respondent Mr Nigel Bunn

Representative for the Respondent Department of Veterans’ Affairs

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR ALLEN: The applicant is the widow of Keith KNIGHT, deceased, a former member of the Royal Australian Navy (“RAN”), who died on 9 July 1998, the certified cause of death being myocardial infarction.

In these proceedings the applicant claimed that the deceased’s myocardial infarction was materially contributed to by passive smoking, to which he was subjected whilst a member of the RAN.

The deceased had operational service, as that term is defined in section 6C of the Veterans’ Entitlements Act 1986 (“VEA”), for a total period of 194 days as well as defence service, as defined in section 68 of the Act, between 7 December 1972 and his date of discharge, namely, 18 January, 1974.

As the deceased had operational service, the standard of proof in this matter insofar as related to his operational service, is that mandated by subsections 120(1) and (3) VEA. That is to say, the tribunal must be satisfied that the death of the deceased was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The tribunal will be deemed to be so satisfied if, after a consideration of all the material before it, it is of the opinion that the material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the service rendered by him. Pursuant to s120A VEA, an hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principle (“SoP”) issued by the Repatriation Medical Authority (“RMA”).

Insofar as relates to the deceased’s defence service, the tribunal must be reasonably satisfied that the death of the deceased is connected with his defence service, s120 (4) VEA.

The tribunal will not be reasonably satisfied of that connection unless a SoP issued by the RMA upholds the contention that the death is, on the balance of probabilities, connected with the deceased’s defence service.

Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.

In this matter, the SoP in force at the time the respondent made its initial decision in this matter, were Instruments Nos.53 of 2003, as amended by Instrument No.9 of 2004, relating to operational service and Instruments Nos.54 of 2003 and 10 of 2004, relating to defence service.

Currently, the respective SoP are Instrument Nos.89 of 2007, as amended by Instrument No.43 of 2009, relating to operational service, and Instrument No.90 of 2007, as amended by Instrument No. 44 of 2009, relating to defence service.

The relevant factor in Instrument Nos.89 and 90 of 2007, is factor 6(i) in both instruments and reads in the case of operational service, atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease, where the last exposure to that atmosphere did not occur more than five years before the clinical onset of ischaemic heart disease. For defence service, the number of hours of exposure is 10,000. This difference in hours of exposure no doubt relates to the differing onuses of proof between operational and defence service.

The relevant factor in Instrument Nos.53 and 54 of 2003 is in identical terms so no question arises as to which instruments are more favourable to the applicant.

In his report dated 1 May 2008, Dr Butler, consultant physician, states that the cause of the deceased’s death was a myocardial infarction and that the clinical onset of ischaemic heart disease was 1996.

As we understand the respondent’s case, it does not dispute that during his naval service the deceased was exposed to a visible tobacco smoke haze in an enclosed space for at least 1000 hours.

The deceased had 194 days of operational service. Consequently, even if he had been exposed to passive smoke for only five hours 20 minutes a day, his period of operational service would exceed the required 1000 hours. Given the report of Commander Brecht, we are reasonably satisfied that this requirement of the SOP was met by the deceased.

As stated above, the deceased left the RAN on 18 January 1974. The clinical onset of his ischaemic heart disease was December 1996. That is to say, some 22, nearly 23, years after exposure to a visible tobacco smoke haze whilst in the RAN.

The hypothesis contended for by the applicant is that the exposure to this tobacco smoke haze suffered by the diseased, both on operational service of itself and the passive smoking suffered whilst on defence service, made a material contribution to the total exposure of the deceased to tobacco smoke, which exposure only ceased within the five years prior to the clinical onset of his ischaemic heart disease or, in fact, did not cease.

The foundation for this hypothesis is the evidence given by the applicant who said that upon discharge from the navy, her late husband started working in the Department of Defence. According to the deceased, smoke permeated his work environment and he informed the applicant that working in the Department of Defence was as bad as working on navy shifts. He described a fog of smoke sitting around his co-worker’s desk and circulating via the air conditioning. He said to the applicant that smoke permeated his work environment. We pause to say that we know of our knowledge that at that time smoking was not discouraged in offices of the Commonwealth Public Service. In fact, the exposure to smoke whilst in the Department of Defence affected the applicant’s health and he was forced to cease work in the Commonwealth Public Service. As we understand the applicant’s evidence, he attempted to obtain work in the Commonwealth Public Service away from the Department of Defence but was unable to do so. Exhibits A5 and A6 corroborate the applicant’s evidence as to her late husband’s exposure to smoke whilst a civilian employee of the Department of Defence. That said, we do not accept that the deceased would have been exposed to visible tobacco smoke haze whilst actually working as a bricklayer, the work which he undertook following his enforced retirement from the Department of Defence.

As authority for the hypothesis, the Applicant relies upon the judgement of Emmett J in Kattenberg v Repatriation Commission (2002) 34 AAR 562. In that case, his Honour said that the Administrative Appeals Tribunal had made an error of law in holding that, with regard to a SoP regarding intervertebral disc prolapse, a factor requiring the smoking of at least 30 pack years of cigarettes before clinical onset, that the 30 pack years must have occurred during service.

At page 571 at paragraph 44, his Honour said:

“The tribunal did not approach the construction of the SOP 130 of 1996 in that way. The tribunal construed the SOP as requiring that the smoking of at least 30 pack years of cigarettes be wholly attributable to the service. The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service, or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SOP 130 of 1996.”

The second ground of appeal is then made out, that the service element of a disease process need only make a material contribution to the ultimate disease was made clear by the later decision of Repatriation Commission v Newton (2008) FCA 401. At paragraph 35, Edmonds J said, inter alia:

“As a matter of construction, the periods referred to in clauses 5(j) (within any 10 year period) and (k) (for at least two years), must encompass at least part of a period of relevant service for the requirement of clause 4 of Instrument No. 82 of 2001 to be met.”

However, as is made clear by his Honour’s discussion of the relevant SoP in paragraphs 37 and 38 of his judgment, regard must be had to the actual wording of the SoP and the exact time periods prescribed.

Kattenberg supra was a case whose facts led to the question of material contribution concerning, as it did, the intensification of a smoking habit and the ongoing effects of that increase in smoking.

This matter is quite different. There is no dispute that the deceased was exposed to passive smoke whilst in the navy. It may have had a cumulative effect upon passive smoke endured by him after naval service but the SoP requires that the clinical onset of ischaemic heart disease occur not more than five years after the last exposure to that atmosphere.

What must be kept in mind is that the SoPs set out factors that connect ischaemic heart disease with relevant service. Kattenberg supra is distinguishable as a smoking habit formed on service can extend post service. As pointed out in Newson supra at paragraphs 38 to 40, the reference to exposure is not to generic exposure but to exposure during a period of relevant service.

Accepting, as we do, that the period of exposure must relate to exposure whilst on service, whether operational service or defence service, to conform to the SoP No.90 of 2007 (defence service), the clinical onset of the deceased’s ischaemic heart disease would have had to have been prior to 19 January 1979. Any link to operational service would have had to have been prior to 26 November 1973.

Even if exposure to a visible tobacco smoke haze on service contributed to the deceased’s ischaemic heart disease, the contribution must be a material contribution. In Comcare v Canute (2005) FCAFC 266, the inclusion of the term “material contribution” was held to impose an evaluative threshold, below which a causal connection can be disregarded. There is no evidence before us that exposure to a visible tobacco smoke haze in the 194 days of operational service, together with exposure between December 1972 to January 1974, whilst on defence service, made a material contribution to the deceased’s ischaemic heart disease, which was first diagnosed in 1996.

As there is neither a reasonable hypothesis linking the deceased’s ischaemic heart disease to operational service nor is there a SoP that satisfies us that the death of the deceased is connected with his defence service, the decision under review is AFFIRMED.