Bailey and Repatriation Commission (Veterans' entitlements) - [2017] AATA 1909

Bailey and Repatriation Commission (Veterans' entitlements) [2017] AATA 1909 (25 October 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/6386
Re:James Bailey
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:25 October 2017
Place:Melbourne

The decision under review is affirmed
....................[sgd]....................................................
Senior Member A. Nikolic
VETERANS’ AFFAIRS – application for increase of pension – claim for cirrhosis of liver –– no reasonable hypothesis established – decision affirmed.
Legislation
Veterans’ Entitlement Act 1986
Administrative Appeals Tribunal Act 1975
Cases
Borrett v Repatriation Commission [2000] FCA 1829
Bushell v Repatriation Commission [1992] HCA 47
Byrnes v Repatriation Commission [1993] HCA 51
Bull v Repatriation Commission [2001] FCA 1832
East v Repatriation Commission [1987] 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Kattenburg v Repatriation Commission [2002] FCA 412
Meehan v Repatriation Commission [2001] FCA 597
MWJ v The Queen [2005] HCA 74
Repatriation Commission v Bey [1997] 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Deledio [1998] 83 FCR 82
Repatriation Commission v Owens [1996] HCATrans 215
Repatriation Commission v Smith [1987] 15 FCR 327
Repatriation Commission v Tuite [1993] FCA 43
Secondary Materials
Statement of Principles Concerning Cirrhosis of the Liver (Reasonable Hypothesis) (No. 1 of 2017), dated 20 December 2016.
REASONS FOR DECISION
25 October 2017
INTRODUCTION

Mr James Bailey has asked the Tribunal to review a decision by the Veterans’ Review Board (VRB) made on 27 September 2016,[1] affirming the Repatriation Commission’s (the Commission) decision of 9 October 2015,[2] that Mr Bailey’s cirrhosis of the liver was not related to his operational service. His application for an increase in disability pension from its current ‘general rate’ was also declined.
[1] T-documents dated 29 December 2016, numbering 71 pages (hereafter referred to as Exhibit R1), pp.B2-B8.
[2] Exhibit R1, pp.51-57.
The hearing was conducted on 19 July 2017. Mr Bailey was represented by Mr Adrian Hoel of counsel, instructed by Williams Winter Solicitors. The Commission was represented by Mr Ken Rudge, a departmental advocate.
Mr Bailey gave evidence at the hearing and was cross-examined. In addition to the T-documents, Mr Bailey’s Statement,[3] a bundle of Medical Records,[4] extracts from his Record of Service,[5] a transcript of his VRB hearing,[6] and a synopsis of the Indonesian Confrontation[7] were tendered into evidence. Leave was granted at the hearing for historical extracts to be provided by the Respondent, and for written submissions by the parties relating to the historical material.[8]
[3] Statement of James Alexander Bailey dated 21 November 2016, hereafter referred to as Exhibit A1.
[4] Medical Records: R93052 J.A. Bailey, numbering 36 pages, hereafter referred to as Exhibit R2.
[5] Record of Service: R93052 J.A. Bailey, numbering 9 pages, hereafter referred to as Exhibit R3.
[6] Transcript of Proceedings, VRB Hearing dated 27 September 2016, hereafter referred to as Exhibit R4.
[7] Perryman J., Indonesian Confrontation, Royal Australian Navy, accessed on 18 July 2017, hereafter referred to as Exhibit R5.
[8] The Respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1909
Decision Date: 25 October 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Bailey, a veteran who served in the Permanent Naval Forces, against a decision of the Repatriation Commission. Mr Bailey sought an increased disability pension for cirrhosis, claiming it was attributable to his operational service. The Commission had determined that while Mr Bailey was entitled to a pension at the General Rate, he was not entitled to the Special or Intermediate Rates, nor to an Extreme Disablement Adjustment.

The legal issues before the court were whether Mr Bailey's cirrhosis arose out of or was attributable to his eligible war service, and if so, whether he qualified for an increased disability pension. This involved considering the definitions of "operational service" and "war-caused disease" under the *Veterans' Entitlements Act 1986* (the Act), as well as the criteria for pension rates under sections 23 (Intermediate Rate), 24 (Special Rate), and 22(4) (Extreme Disablement Adjustment). Crucially, the court had to apply the standard of proof set out in sections 120(1) and 120(3) of the Act, which requires a determination in favour of the veteran unless satisfied beyond reasonable doubt that no sufficient ground exists for making such a determination.

The court affirmed the decision under review, finding that the material before it did not point to a reasonable hypothesis connecting Mr Bailey's cirrhosis to his operational service. While Mr Bailey provided evidence of increased alcohol consumption during his service, particularly on shore leave, the court noted that this behaviour was not necessarily attributable to his service. Drawing on established case law, the court emphasised that a reasonable hypothesis must be "pointed to" by the facts, not merely left open or explained by other possibilities. The court found that Mr Bailey's increased drinking could be explained by social practices or a personal liking for alcohol, rather than being a direct consequence of stressors or experiences during his operational service. Therefore, the standard of proof under section 120(3) was not met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the decision under review is affirmed.BACKGROUND Mr Bailey is a 73 year old veteran who served with the Permanent Naval Forces (PNF) from 10 July 1960 until 10 July 1972. Following completion of his initial training at HMAS Leeuwin in July 1961, Mr Bailey served at HMAS Watson and then on HMAS ANZAC for three months. He had longer postings on HMAS Voyager from 17 September 1962 until 9 January 1964, and on HMAS Yarra from 5 January 1965 until 24 September 1966.[9] Both of these longer postings encompassed operational service within the meaning of section 6C of the Veterans’ Entitlement Act 1986 (the Act), with the Far East Strategic Reserve (FESR) in 1963, and in Malaysia / Singapore during 1965-66.[9] Exhibit R3, p.91. After leaving the PNF, Mr Bailey continued to be a member of the Navy Reserve for approximately 27 years before his discharge on 30 September 1999. This included a five-month period of fulltime service in 1996.[10][10] Exhibit R3, p.100. Mr Bailey has two disabilities accepted under the Act, namely Chronic Bronchitis and Emphysema and Pleural Plaque.[11] Two claims have been rejected, namely Bronchiectasis (2006) and Cirrhosis (2016).[12][11] Exhibit R1, p.1.[12] Ibid. In refusing his claim for Cirrhosis, the VRB noted Mr Bailey ‘was a regular drinker before the commencement of his operational service,’ and that the reasons given for his drinking ‘related to social behaviours.’[13] The VRB also noted that Mr Bailey ‘did not raise any stressors that contributed to his drinking during or following his operational service’.[14] The VRB determined that Mr Bailey’s pension should remain at 100% of the General Rate, and that he was not entitled to pension at either the Special or Intermediate Rates, or to the Extreme Disablement Adjustment.[15][13] Exhibit R1, p.B7.[14] Ibid.[15] Ibid.RELEVANT LEGISLATION AND AUTHORITIES Operational Service. The expression ‘operational service’ is defined at sections 6 to 6F of the Act. Under section 6C, a person renders operational service if they, inter alia, are allotted for duty in an operational area. War-Caused Injuries or Diseases. Section 9 of the Act provides, amongst other things, that: (1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;… Special Rate. The relevant legislation for Special Rate of pension is contained in section 24 of the Act, which states in part:24 Special rate of pension(1) This section applies to a veteran if:(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and(aab)the veteran had not yet turned 65 when the claim or application was made; and(a)...

Evidence

Evidence Before The Court

The issues for determination are whether Mr Bailey’s Cirrhosis arose out of or was attributable to any eligible war service rendered by him, and if so, whether he is entitled to an increase in his disability pension.EVIDENCE OF MR BAILEY It is not contested that Mr Bailey was diagnosed with Cirrhosis of the Liver, with a date of onset of 27 October 2014.[25] In his application to the Commission,[26] Mr Bailey claims his cirrhosis was caused by ‘drinking beer, wine and spirits,’ which he attributed to his operational service on HMAS Voyager in early 1963. His contentions regarding increased consumption of alcohol relate to specific and general stressors during that operational service.[25] Exhibit R1, p.41.[26] Exhibit R1, pp.23-32. In his oral evidence Mr Bailey submits that he was not allowed to drink alcohol while undertaking recruit training at HMAS Leeuwin or during subsequent training at HMAS Watson. He claims to have never consumed alcohol before being posted to his first ship, HMAS ANZAC, in October 1961. It was while serving with HMAS ANZAC that Mr Bailey says he was first issued with a beer ration approximately 50% of the time, but not during exercises or operations. Mr Bailey submitted that alcohol was tolerated in the Navy but not encouraged. He says participation in heavy drinking behaviour was ‘normal – not only on ANZAC, but on any ship…[and that he and his shipmates would]…go to the pub every night and drink till you couldn’t drink anymore.’ When HMAS ANZAC was in harbour, Mr Bailey said the ship’s company ‘had shore leave’ and just outside the gates, ‘the pubs sprang up.’ He said crew from all of the ships would congregate at establishments like the ‘Rocks, which was a sailor’s pub’ and ‘only a five minute walk from the main gate at Garden Island.’ When asked if he drank to the point of inebriation while posted to HMAS ANZAC, Mr Bailey said not while on the ship, but during shore leave ‘you drank until you couldn’t drink anymore.’ When asked whether that was always his intent, Mr Bailey responded ‘quite often.’ In relation to how much he drank on these occasions, Mr Bailey responded ‘depending on what time you got there, but you know 10, 15… as soon as your glass was empty, it was refilled again.’ Mr Bailey agreed with Mr Rudge’s characterisation of the drinking culture during this time as ‘the social practice.’ He said his heavy drinking lifestyle continued during early 1962 when he was at HMAS Kuttabul, then at HMAS Watson, and then while posted to HMAS Sydney, which was ‘in mothballs’ and being prepared for sea. Mr Bailey explained that from March to September 1962, he stayed at HMAS Kuttabul and had easy access to local bars, ‘mainly the Rocks and Woollomooloo Hotel next to Garden Island,’ agreeing with Mr Rudge that he continued to drink at the same level of 10-15 beers a night, stating this was a ‘conservative’ estimate. Mr Bailey said his posting to HMAS Voyager on 9 November 1962 occurred while the ship was predominantly based in Singapore. Visits were undertaken to Hong Kong, Japan and the Philippines, where exercises were conducted with American and British forces. Mr Bailey said the ship’s company was allowed to consume alcohol while on shore leave in places like Singapore and ‘on virtually every occasion,’ he ‘took drinking to the point of inebriation.’ Mr Bailey submitted that during this period, he drank more than 10-15 beers per day on some occasions, stating: ‘the beer was free, so I drank as much as I could.’ By way of example, he referred to visits to the Olongapo bar district in Manila and the San Miguel Brewery, stating ‘you could sit there all day and drink, catch the barge back to Voyager and back the next day.’ He said that during shore leave in Japan, he would drink up to two bottles of wine, because Asahi beer was not to his taste.

Decision

Reasons for decision

Second, Mr Rudge highlighted the Federal Court’s decision in Codd,[34] where Gordon J, referring to Owens, held that:‘As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].’ [emphasis added][34] Repatriation Commission v Codd [2007] FCA 877. Third, Mr Rudge asked that I note the concurrence of Emmett and Allsop JJ, who cited the following from East[35] in Bull[36] at [17-18]:‘We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. [emphasis added]18. It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above.’ [35] East v Repatriation Commission [1987] 16 FCR 517.[36] Bull v Repatriation Commission [2001] FCA 1832; 188 ALR 756. Although Bull was a widow’s pension case, Mr Rudge submitted it was relevant in Mr Bailey’s case insofar as it was insufficient to show an increase in drinking behaviour. He referred to Their Honours’ comments at [41-43]:41. However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.42. On this basis, one can see that the reasons for the veteran’s increased drinking after the War might be consistent with the hypothesis in [38] above; but the drinking may also be equally explained otherwise, for example, a liking for convivial company of former service friends or a simple increased liking for alcohol consumption, especially after sporting activities.43. If the consumption had been of a pattern which bespoke a change in behaviour referable to service or to coping with the experience of service, it might point to a connection with war service.

Ratio Decidendi

Legal Principle Established

Operational Service. The expression ‘operational service’ is defined at sections 6 to 6F of the Act. Under section 6C, a person renders operational service if they, inter alia, are allotted for duty in an operational area. War-Caused Injuries or Diseases. Section 9 of the Act provides, amongst other things, that: (1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;… Special Rate. The relevant legislation for Special Rate of pension is contained in section 24 of the Act, which states in part:24 Special rate of pension(1) This section applies to a veteran if:(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and(aab)the veteran had not yet turned 65 when the claim or application was made; and(a)... Intermediate Rate. Eligibility for a pension payable at the Intermediate Rate is provided for at section 23 of the Act, which has the same eligibility criteria as section 24, except that the veteran has a capacity for more than eight but no more than 20 hours work per week. As required by section 23(1)(d), however, it is necessary to consider eligibility for the Special Rate first, before turning to the Intermediate Rate. In effect, Section 23 only applies if section 24 or 25 does not apply to the veteran. Extreme Disablement Adjustment (EDA). Section 22(4) of the Act provides for the payment of EDA as follows:22 General rate of pension and extreme disablement adjustment…(1) This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.…(4) Where:(a)either:(i) the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force;….(b)the veteran has attained the age of 65;(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25. Standard of Proof. As Mr Bailey’s claim for cirrhosis relates to operational service, the applicable standard of proof is defined in section 120(1) and section 120(3) of the Act:(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.Note: This subsection is affected by section 120A.(2)...(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war-caused injury or a defence-caused injury;(b)that the disease was a war-caused disease or a defence-caused disease; or(c)that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A.