Ashford and Repatriation Commission
[2003] AATA 791
•12 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 791
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/783
VETERANS' APPEALS DIVISION ) Re MAUREEN ASHFORD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date12 August 2003
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS - Widows application; death by cirrhosis of liver; whether sub hypothesis of alcohol abuse and dependence satisfies Statement of Principles; service at Butterworth; operational period limited; whether deceased experienced a severe stressor; decision affirmed.
Veterans’ Entitlements Act 1986 s5B(2), s6D, s119(1)(g)
Statement of Principles No.76 of 1998
Connors v Repatriation Commission (2000) FCA 783
McKenna v Repatriation Commission (1999) FCA 323
Repatriation Commission v McKenna (1998) FCA 787
Repatriation Commission v Deledio (1998) 49 ALD 193
Woodward v Repatriation Commission (2003) FCAFC 160
Grundy v Repatriation Commission (2003) FCAFC 160
REASONS FOR DECISION
12 August 2003 Mr J Handley, Senior Member 1. The applicant applies to review a decision of the Veterans’ Review Board (“VRB”) made on 4 June 2002. The VRB then decided to affirm a decision made by the respondent on 24 January 2001 where it was then determined that the death of Patrick John Ashford was not war-caused.
2. This application is brought by Mrs Maureen Ashford the widow of the late veteran who died on 3 May 1982. Mr Ashford who was then 45 years of age was born on 1 April 1937. At the time of his death he was not in receipt of disability pension.
3. The cause of death per the death certificate was “pulmonary oedema-hours, portal hypertension – 18 months; acute renal failure – 4/5 days; bleeding oesophageal varices – 1/2 days”.
4. For the purposes of this application Mr Douglass who appeared on behalf of the respondent conceded that the cause of death was cirrhosis of the liver. Having been advised that the hypothesis that would be advanced by Mrs Ashford was an association between service and alcohol consumption, Mr Douglass also conceded that the quantities of alcohol found within the applicable Statement of Principle which would, as a minimum, exist before it could be said that a reasonable hypothesis connected cirrhosis and service had been met. The principle issue in this application is whether the association between service and alcohol consumption was to the extent that a “sub-hypothesis” existed. In that regard, the Statement of Principles entitled “Psychoactive Substance Abuse or Dependence” being Instrument No.76 of 1998 existed at the date of claim and throughout the assessment period.
5. The applicable factors in Instrument No.76 of 1998 are
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
6. Accordingly, the hypothesis which would need to be established in the present application is a connection between service and either a psychiatric disorder or experiencing a severe stressor, at or prior to the clinical onset or at or prior to the clinical worsening or an inability to obtain appropriate clinical management for alcohol dependence, which in turn gave rise to cirrhosis of the liver. All of the links in the chain of hypothesis must be established.
7. In Connors v Repatriation Commission (2000) FCA 783 Kenny J dismissed the submission put to the Tribunal that “no individual part or parts of the hypothesis need be supported by facts raised in or by evidence in order for that hypothesis to be upheld by the SOP”. Her Honour decided that “if an essential element in a hypothesis is not raised (or pointed to) by the material before the decision maker then that hypothesis is not raised by that material”. In reaching these conclusions, Her Honour followed the Full Court decision of McKenna v Repatriation Commission (1999) FCA 323 which upheld the primary decision of Goldberg J in Repatriation Commission v McKenna (1998) FCA 787.
8. For the purposes of Instrument No.76 of 1998 a “psychiatric disorder” is defined at paragraph 8 as:
Any Axis 1 or 2 disorder of mental heath attracting a diagnosis under DSM IV.
9. “Experiencing a severe stressor” is also defined at paragraph 8 as:
the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
10. Another feature of this application was the entirety of the deceased’s service at Butterworth Airbase at Malaya could not be regarded as being operational service. Relevantly he was posted to the RAAF base at Butterworth between 30 July 1963 and 15 August 1965.
11. For the purposes of s5B(2) of the Veterans’ Entitlements Act 1986 an Instrument was issued on 28 December 2000 with effect from 1 January 2001 which declared that a person was allotted for duty in an operational area between certain dates. For the purposes of members of the Royal Australian Airforce at Butterworth, the period of operational service commenced on 17 August 1964 and concluded on 11 August 1966. Mr Ashford left the Butterworth base on 15 August 1965 and accordingly his operational service only concerns the period 17 August 1964 until 15 August 1965.
12. Following the evacuation from Butterworth, Mr Ashford was enlisted by the RAAF in Australia until 31 May 1971 however he re-enlisted on 13 September 1971 and was eventually discharged on 11 April 1980.
13. The hearing of this application commenced in Bendigo on 4 April 2003 and concluded in Melbourne on 29 July 2003. Mr De Marchi appeared in Bendigo on behalf of Mrs Ashford and Ms Black appeared on her behalf in Melbourne. Mr Douglass appeared on both occasions on behalf of the respondent. Mrs Ashford gave evidence on both days of hearing. Dr Cole, a medico-legal psychiatrist, gave evidence on her behalf in Melbourne. Mr Owens, a retired RAAF officer, gave evidence at the request of the respondent in Melbourne. A number of documents were received into evidence and will be referred to in these reasons.
Maureen Ashford
14. Mrs Ashford said that she first met her husband in 1956. She was then ten years of age and he was 19 years of age.. She said that they were neighbours and she was close friends with other members of his family. She said that her brothers and her late husband were members of a local YCW youth club. She said that her husband did not drink alcohol prior to enlistment in 1959 and that he had come from a family which frowned upon alcohol consumption. She was adamant that her late husband did not consume any alcohol prior to his enlistment.
15. After he did enlist Mrs Ashford said that her relationship with her husband was as “pen pals”.. (She and the late Mr Ashford did not marry until 1967 being two years after he returned to Australia from Butterworth.) She said that in his letters to her he referred on occasions to he and his service comrades, “getting up to mischief” and on some occasions his letters from Butterworth said that he had “got tanked”.
16. Whilst at Butterworth Mrs Ashford said that her husband wrote to her about his boredom, the plentiful supply and availability of cheap alcohol, and the frequency of his alcohol consumption. She said there were occasions where he expressed in his letters that he was concerned that he would “get his head blown off when on guard duty”.. She also said that in his letters he expressed his wish to return to his family in Victoria and that he had not appreciated how much he would miss his family whilst he was away. He was also upset that he was not permitted to return to Australia when his father died whilst he was posted to Butterworth.
17. Mrs Ashford said that she recalled that when her husband returned to Australia in 1965 he was drinking heavily throughout the day and at night. She recalled smelling alcohol on his breath. Thereafter her husband was frequently drunk and violent. On some occasions she temporarily separated from him but he promised that he would cease alcohol consumption in order to restore the marriage. Thereafter he resumed his drinking habits and continued to drink alcohol to excess.
18. Subsequent to Mrs Ashford giving her evidence in Bendigo she later consulted with Dr Cole who interviewed her for the purposes of providing a medico-legal report. When the report of Dr Cole was filed and exchanged it contained a history taken from Mrs Ashford of her husband having flown over Vietnam. In his report of 19 May 2003 Dr Cole recorded “once they flew over Vietnam and had to turn back”. In the letter dated 19 June 2003 addressed to her solicitor, Mrs Ashford reported:
I also remember a conversation where I enquired if he had ever been in Vietnam, his reply was that he had flown over Vietnam but for some reason that he either did not tell me or I cannot recall, they had to turn back, he was quite annoyed that had he have spent 12 or 24 hours in Vietnam, he would have been automatically entitled to a War Service Home Loan.
19. When she gave her evidence in Melbourne, Mrs Ashford said that she had spoken subsequent to her evidence in Bendigo with Mr John Ison who served with her husband in Butterworth. She said that Mr Ison had told her that it was “possible because he was in the equipment section that he would be called out to help out on the plane because of a shortage of personnel”.. Mrs Ashford said that she recalled talking to her husband about a war service home loan and he had told her that he did fly over Vietnam but did not land and had the plane landed he would have qualified for a war service home loan. Mrs Ashford said that she had had the conversation with Mr Ison “three of four weeks ago”. She said that Mr Ison had told her that it was “possible” that her husband had been called upon to fly over Vietnam. She acknowledged that she did not give this evidence in Bendigo because although she did previously know of it, it had “slipped (her) mind”.. She said that she did recall having a conversation with her husband about him flying over Vietnam but he either would not or could not discuss the flight with her because he would have taken an oath at or prior to enlistment not to discuss particular events in service. Mrs Ashford said that she had also been an employee of the Department of Supply and that she had taken a similar oath and understood that her husband would have been prohibited from discussing the flight to Vietnam with her. From what she could recall, she said that her husband had told her that the flight to Vietnam had originated in Malaya but had turned back. She said that she had forgotten to speak of this during her evidence in Bendigo but had been reminded about it in her recent conversation with Mr Ison who had previously been a close friend of her husband and with whom she and her husband had previously socialised.
20. Mrs Ashford also said that when she reflected on her evidence in Bendigo of her husband writing in his letters that he was fearful that his head would be “blown off” when on guard duty he had been fearful of his life. She said that because of his fear of attack when on guard duty and other stressful events in service, her husband drank to excess. She recalled that her husband reported in his letters that he suffered stress “as a single man on base” and when she later asked him why he was stressed as a single man, he would reply that he had little to do and he was bored. Mrs Ashford said that had she been on base with him he would not have been as stressed.
21. Mrs Ashford acknowledged that her husband had been disciplined at Butterworth for being drunk on duty. Page 171 of the personnel records record that on 20 October 1963 at Butterworth the late Mr Ashford was found to have been drunk when on guard duty and he was disciplined. Mrs Ashford said “this would not have been the first time”.
22. At a medical examination on 2 June 1964 (medical records at page 29) the late Mr Ashford was examined. The notation of the examining medical officer was “under influence of alcohol” and “alcohol ++”. Mrs Ashford said that her husband would not have written to her about that event.
Edward Cole
23. Dr Cole is consultant medico-legal psychiatrist who interviewed Mrs Ashford on 9 May 2003 and provided a report dated 19 May 2003. In the history obtained from Mrs Ashford he recorded that the late Mr Ashford did not consume alcohol before his enlistment but commenced to drink because of boredom and because there was little to do. He also noted that the deceased consumed considerable quantities of alcohol after he returned to Australia. Dr Cole found that the concern of the deceased at being shot at whilst on guard duty and his flight over Vietnam were “causative factors in the increased consumption of alcohol”.
24. In cross-examination Dr Cole was acquainted with the notation on 20 October 1963 of the deceased being disciplined for being found drunk on guard duty. He noted that this event occurred shortly after he arrived at Butterworth. Dr Cole said that that event would indicate to him that the deceased was then dependent on alcohol. He also thought that it was noteworthy that the deceased was drunk whilst on guard duty. Additionally Dr Cole was of the opinion that the notation by the medical officer on 2 June 1964 would indicate that the deceased was then dependent upon alcohol.
25. Dr Cole said that it was implied that the flight over Vietnam by the deceased would have been a frightening experience however there was nothing else from the history given to him by Mrs Ashford which would permit him to draw any other conclusions with respect to that episode.
26. Dr Cole recorded in his report (pages 3 and 4) that the deceased was not a “nervous person” prior to enlistment but he had become nervous “by the time they were married”. He recorded that the deceased “would get the shakes and that was enough reason for him to go to the fridge again”.. When asked to expand upon this in evidence, Dr Cole said that the deceased was probably nervous because of his alcohol dependence. That is to say, in the absence of alcohol he could be observed as being nervous and consumed alcohol, consistent with his dependence.
John Terence Owens
27. Mr Owens provided two reports at the request of the respondent dated 13 January 2003 and 3 July 2003. Mr Owens was a member of the RAAF between 1956 and 1989. He was previously a fighter pilot but graduated to become a staff officer posted to Canberra and overseas. He served in Butterworth between 1969 and 1971 as the Commanding Officer of a Sabre aircraft squadron. For the last two years he has been engaged in military research.
28. In his first report Mr Owens had access to a number of service documents which assisted him in the compilation of his report. Those documents comprised “Unit History Sheets” which were the recordings of significant events reported monthly during service. He said that events that would be likely to be recorded would be any events which were “out of the ordinary or out of routine. Such events would be any intrusions onto bases, accidents or unusual personnel occurrences”. He also had access to the “Commanding Officer’s Monthly Reports” which he said were of a similar nature to the unit history documents but would be of a more “political” nature and would also contain morale issues. Additionally he had access to “Personnel Occurrence Reports” which were reports concerning personnel issues which mainly only included data concerning salaries and the identity of next of kin and other reports of an administrative nature. Additionally, Mr Owens also spoke with other RAAF personnel who were posted to Butterworth between 1963 and 1965.
29. In his first report Mr Owens recorded the “conditions at Butterworth” as follows:
Conditions for those RAAF personnel servicing at Butterworth in the period 1963 to 1965 were very comfortable. The Malayan Emergency was declared officially ended on 31 July 1960 and the RAAF remained in Malaysia as part of the Commonwealth Strategic Reserve but taking no part in operational activities. Base operations were routine and very much identical to operations at a similar base in Australia. The base was located on the Malaysian mainland about 15 miles north of the port of Butterworth and single personnel lived on the base. Married personnel lived in married quarters near the base or on Penang Island.
30. In evidence Mr Owens said that the conditions at Butterworth were “comfortable” and well developed. He said that at least 2000 persons at any time would be located on the base which he described as “great living”.. He said there were many clubs and other social outlets and sporting events available to persons on base. He also said that there were married quarters which comprised service personnel and their families. He said that families and dependants were permitted to live on base because of the absence of any threat. He said the married quarters were within a few 100 metres of the base in homes which were permanently constructed.
31. With respect to the duties of Mr Ashford at Butterworth, Mr Owens noted that the deceased was a member of a supply unit and was employed in the “bulk ration store”. The records indicated that the late Mr Ashford was the “store keeper in charge of 5 Asian staff and all provisions stored”.. He said that he would have been responsible for the receipt, storage and dispatch to various locations throughout the base and Penang Island of all food items. Annual assessments of the performance of the deceased indicated his performance as being satisfactory and in 1965 it was reported that he was “fit for promotion to Corporal”.
32. The second report of Mr Owens was obtained when it was learnt that Mrs Ashford intended to give evidence with respect to her husband’s flight over Vietnam and to his concern of having his head “blown off” whilst on guard duty.
33. In the second page of this report Mr Owens recorded:
Confrontation between Malaysia and Indonesia started in mid-1963 and there was little activity by 1966 apart from diplomatic initiatives to formalise some understanding between Malaysia and Indonesia. A peace treaty between the two countries was signed in Bangkok on 2 June 1966. While the RAAF was not involved in any action, RAAF Sabre aircraft were on operational alert, and were deployed to Singapore and Kuching on occasion in support of the Malaysian government. Forces from the UK and New Zealand were also involved. There is no evidence of Mr Ashford’s involvement in any of these deployments nor was there any reason for Mr Ashford to have been involved. While there were some Indonesian forces detected entering the Malaysian mainland, there was no RAAF involvement. There is no record of any attack on the base at Butterworth at any time during the Malayan Emergency or during Confrontation. The base was on heightened alert at times but there were no threats to the base or to the RAAF personnel or dependents. Mr Ashford would have had to perform guard duty as would have most of the other RAAF airmen at Butterworth. While this may have been an onerous task, it was little different from the guard duty undertaken by airmen at any base in Australia. There were also Australian Army personnel in the area, RAF Regiment guards and Malaysian forces that would have been deployed in the event of a possible attack. There is no evidence that any RAAF member at Butterworth was at risk during the Confrontation period.
34. In his evidence Mr Owens said that RAAF aircraft were on stand-by alert between 1963 and 1966 but life on the base “went on as usual” except for an occasional curfew. He said that guard duty was operated on a rotational basis amongst personnel and had there been any threat to any personnel at any time it would have been reported because it would have been regarded then as being unusual.
35. When Mr Owens was informed that Mr Ison in a letter to Mrs Ashford had said that her husband’s nerves were “shot to pieces” and that he had been “walking around with loaded guns they had not been trained to use” whilst on guard duty, Mr Owens said that all RAAF personnel had been trained in weapon handling which would have been updated at least once per annum. He also noted from the personnel records that the deceased had previously been engaged as a “gunner” in the Army which would have given him experience in small arms (refer page 224 of personnel file).
36. With respect to the allegation of the deceased having flown over Vietnam, Mr Owens said that Hercules transport aircraft were used to support Australian units in Vietnam. The first flight out of Malaya to Vietnam was in August 1964. He said there was no record in any of the documents that he inspected of the deceased ever being attached to a transport support unit. He said had the deceased been attached it would have been recorded. He noted that the late Mr Ashford had no aircrew training or experience and that such experience would be inconsistent with a person being in charge of a rations store. He said that Hercules aircraft had its own specifically trained staff and a person with the work experience of the deceased would not have been considered to be a member of an aircrew upon a Hercules support aircraft.
37. In cross-examination Mr Owens said that persons on base would have been informed of any risks associated with service in Malaya by regular briefings. They would have also learnt of risks – if any – by access to local newspapers and by listening to radio. Briefings of the possibility of risk would only have occurred if there was a “heightened alert”.. Mr Owens said that there was never a confrontation on the Butterworth base and any confrontation involving Australian personnel would be more likely to have occurred in Darwin than at Butterworth.
38. Mr Owens firmly dismissed the possibility of the deceased ever having flown over Vietnam. He said it was inconceivable that there would not have been a record of that event. He said Vietnam was then regarded as a war zone and the deceased would not have been authorised to be engaged in such a flight. Had he flown over Vietnam it would have been recorded in the Personnel Occurrence Reports. He said that he did find references to those persons who did fly over Vietnam but there was no reference at all to the deceased having flown over Vietnam. Additionally he said that because there was a risk of casualty – that is by flying over a war zone – strict record keeping procedures would have been engaged.
Conclusion and Reasons for Decision
39. In all applications involving consideration of Statements of Principles there are four stages of analysis which must be followed as pronounced in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206. Those stages are as follows:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one of more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4.The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
40. Stage one is satisfied because there is material which points to a hypothesis connecting death by cirrhosis of the liver with service. Stage two is also satisfied because there are two hypotheses which apply (refer earlier).
41. Stage three is satisfied to the extent that the hypothesis, namely service giving rise to alcohol dependence or abuse which in turn was responsible for death by cirrhosis of the liver does contain factors which the Repatriation Medical Authority has determined to exist as a minimum before a raised hypothesis could be said to be reasonable.
42. Stage four of the Deledio analysis is critical, no less in the present circumstances. It is only at this stage that findings of fact are required upon the material which has been raised. Those findings of fact must be made on the civil standard of the balance of probabilities.
43. I am satisfied and find as a fact that the deceased did not consume alcohol prior to enlistment. I am satisfied that subsequent to enlistment the late Mr Ashford did commence to consume alcohol. There is much to suggest that he eventually was consuming alcohol to excess (refer page 171 of personnel file where the applicant was found to be drunk when on guard duty and page 29 of the medical file where the examining officer has noted that the deceased apparently did consume alcohol to excess).
44. Additionally it would appear that the excess consumption of alcohol lead to the deceased having a dependence upon it. In turn (and paradoxically) the deceased consumed alcohol because of his dependence.
45. The above references in the documents lodged to the apparent consumption of alcohol by the deceased, together with a notation at page 2 of the medical records of him being observed to have “slight tremors” at February 1962, were observations made by qualified medical officers of the deceased and at a period of time prior to the commencement (relevantly) of operational service namely, 17 August 1964. That is to say, prior to that date service of veterans in Malaya were not subject to the Veterans’ Entitlements Act 1986 but rather Commonwealth Legislation concerning the rights of persons to compensation as employees (refer s6D of the Veterans’ Entitlements Act and the Instrument issued on 28 December 2000 (refer earlier)).
46. The added difficulty therefore facing Mrs Ashford is whilst it would appear that her husband did suffer from alcohol dependence prior to 17 August 1964, in the absence of any knowledge of the extent of alcohol consumption prior to that date and evidence of the extent of alcohol consumption subsequently, it is not possible to determine whether there was any worsening as that term appears variously at paragraph 5 of Instrument No.76 of 1988. It would also appear that the clinical onset of alcohol dependence occurred before 17 August 1964.
47. There is no material which would permit a finding of the deceased suffering a “psychiatric disorder” as that term is defined within the Instrument.
48. Additionally there is no material which would permit a finding that the deceased did “experience a severe stressor” as that term is defined in the Instrument. The evidence of boredom, availability of alcohol, peer pressure, affordable cost, loneliness and absence from family are not events which fall within the definition of “experiencing a severe stressor”. The events described by Mrs Ashford which may approach satisfaction of that definition was the expressed fear of the deceased that his head would be “blown off” on guard duty and his flight over Vietnam.
49. I cannot be satisfied on the evidence and therefore I am not able to find as a fact that the deceased did “experience a severe stressor”.. In making these findings I am mindful of the extensive discussion and analysis of the words “experienced”, “witnessed” and “was confronted with” by the Full Federal Court in the joint judgement of Woodward v Repatriation Commission and Grundy v Repatriation Commission (2003) FCAFC 160. In reaching these conclusions I am mindful of the evidence of Mr Owens who, having examined relevant documentation, was satisfied that the period of hostility in Malaysia ceased many years prior to the deceased having been transferred to Butterworth. I am mindful also that there was no record of any hostility or incursion or risk throughout the whole period of the deceased being located at Butterworth – no less during the period of his operational service – where it could be found that the late Mr Ashford did experience or witnessed or was confronted with an event or events that involved actual or threat of death or serious injury or threat to his or another persons physical integrity. This is consistent with the RAAF having families and dependent children on base and the employment of local civilians. These features alone would suggest the level of risk being so minimal that the safety and security of those persons, if not assured, could be regarded with a great deal of confidence. The apparent concern of the deceased that he would have his head “blown off” is a belief I am satisfied was consistent with his apparent “nervousness” which was initially found upon enlistment and consistent also with his alcohol dependence. Additionally, I am not satisfied that the deceased was ever exposed to any “threat” and the subsequent consequences as contained within the definition.
50. On the second day of hearing, Mrs Ashford said in evidence that her husband was engaged in a flight over Vietnam. This was raised as an indication of the stress which the deceased suffered. I am satisfied and find as a fact that the deceased did not fly over Vietnam. I make this finding by regard to the evidence of Mr Owens. Mrs Ashford put the proposition on the basis of a conversation she had with Mr Ison who said that it was “possible” that her late husband was engaged in such a flight. Mrs Ashford said that she could recall a conversation with her husband where he did refer to that flight in the context of his regret that the aeroplane did not land because it disqualified him from obtaining a war service home loan. It is of significance that when this information was learnt on the second day of hearing it was not expressed by Mrs Ashford as evidence of her husband being in fear during that flight but rather expressing regret that by reason of the plane not landing the war service home loan was not available. But on the evidence of Mr Owens the deceased would not have ever qualified to be a member of the aircrew which would have been engaged in such a flight. I do not doubt that Mr and Mrs Ashford may have had a discussion about their eligibility for a war service home loan and it may have been during that conversation that the deceased may have expressed his regret that he did not fly over Vietnam and land in order to qualify for such a loan. But on the evidence heard from Mr Owens, which I accept and find as a fact, I am not satisfied that the deceased was ever engaged in such a flight.
51. Additionally it was put on behalf of the applicant that she should have the benefit of the provisions of s119 of the Veterans’ Entitlements Act.. It was put that substantial justice and the substantial merits of the case should be considered in making a decision. This would suggest that s119(1)(g) was contemplated. This submission must also be dismissed. In Mason v Repatriation Commission (2000) FCA 1409 Weinberg J said (paragraph 76) “the role of section 119 is not to invent evidence which may serve to establish that connection”. In Repatriation Commission v Bey (1997) FCA 1347 the majority of the Full Court recorded “the material either points to a connection or it does not. If it does not the deficiency cannot be remedied by resort to a procedural provision such as s119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal’s obligation to act in accordance with law”. In Grundman v Repatriation Commission (2001) FCA 892 Gray J (paragraph 33) recorded “it cannot be suggested that s119(1)(g) is intended to provide an easy route to a favourable decision for a veteran any more than it could be suggested that the provision was intended to provide such an easy route for the Repatriation Commission. The argument should be put to rest entirely”.. Of course I follow and adopt the above conclusions.
52. In all of the circumstances and having regard to the findings made above I am satisfied beyond reasonable doubt that the death of the late Mr Ashford was not war-caused.
53. It follows that the decision under review must be affirmed.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.
Signed: Elsa Genovese
Personal AssistantDate/s of Hearing 4 April (Bendigo) & 29 July 2003 (Melbourne)
Date of Decision 12 August 2003
Representative for the Applicant Mr D De Marchi & Ms I Black
Counsel for the Respondent Mr R Douglass
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