Baverstock and Repatriation Commission
[2008] AATA 467
•5 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 467
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 2007/11
VETERANS' APPEALS DIVISION ) Re GARRY BAVERSTOCK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member
Date5 June 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review insofar as it relates to the condition of adenocarcinoma of the kidney, and substitutes the decision that:
(i) the condition of adenocarcinoma of the left kidney is a defence-caused condition within the meaning of section 70 of the Veterans Entitlement Act 1986;
(ii) Mr Garry Baverstock is entitled to receive a pension for incapacity associated with this condition with effect from and including 2 December 2003; and
(iii) the matter is remitted to the Repatriation Commission for the assessment of the pension...................[Sgd]..............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – veteran served with Royal Australian Navy – maintenance worker – not provided with safety protection equipment – exposure to respirable asbestos fibres – 15 years later veteran developed adenocarcinoma of the kidney – left kidney subsequently removed – disease is defence caused – decision set aside.
STATUTORY INTERPRETATION – noscitur a sociis – interpretation of “dislodgement” as it appears in Statement of Principles for adenocarcinoma of the kidney: Instrument no.88 of 2001.
Veterans’ Entitlements Act 1986 ss 5(1), 68, 70, 120B(3), 196B, 198A(1), 198B(1),
Repatriation Commission v Smith (1987) 15 FLR 327
Vietnam Veterans’ Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419
Wallis v Repatriation Commission (2000) 62 ALD 502
Magdalinski and Repatriation Commission [2000] AATA 108
Repatriation Commission v Hayes (1982) 5 ALD 8
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
RepatriationCommission v Cornelius [2002] FCA 750
REASONS FOR DECISION
5 June 2008 Dr P McDermott RFD, Senior Member INTRODUCTION
1. Mr Garry Baverstock (“the veteran”) has served in the Royal Australian Navy. He claims that the adenocarcinoma of his kidney, which led to the removal of his entire left kidney, was caused by his service.
SERVICE
2. From 14 July 1973 until 13 July 1984 the veteran served with the Royal Australian Navy. He also has other military service which is not material to this application.
3. While the veteran served with the Royal Australian Navy, official records show that he was posted to the following ships:
·HMAS Stuart (6 October 1975 to 16 January 1977; 29 March 1977 to 18 December 1977);
·HMAS Derwent (6 October 1980 to 12 January 1981)
·HMAS Yarra (27 January 1981 to 8 June 1981)
·HMAS Parramatta (31 May 1982 to 14 June 1983)
·HMAS Supply (from 6 October 1975 to a date prior to his discharge).
4. We are satisfied that his service is defence service under s68 of the Veterans’ Entitlements Act 1986 (the Act).
CLAIM OF VETERAN
5. On 25 September 2003 the veteran lodged a claim form with the Repatriation Commission, for a disability pension for “left kidney removed”. In that form he claimed that this condition was related to his service with the Royal Australian Navy[1]. There is no issue that this claim has not been made in accordance with s 14 of the Act.
[1] T4, fol 49.
PRIOR DECISIONS
6. On 30 January 2004, the Repatriation Commission determined that the veteran had adenocarcinoma of the kidney but also determined that this condition was not related to his service[2].
[2] T8.
7. On 10 July 2006 the Veterans’ Review Board affirmed the decision of the Repatriation Commission that the condition of adenocarcinoma of the kidney was not related to the service of the veteran[3].
[3] T2
8. The veteran now seeks the review of that part of the decision of the Veterans’ Review Board which relates to the condition of adenocarcinoma of the kidney.
LEGISLATIVE FRAMEWORK
9. The Act provides that, where a member of the Forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease: see s 70(1).
10. The term “disease” is defined in s 5(1) of the Act to mean any physical or mental ailment, disorder, defect or morbid condition.
11. We are satisfied that the term “disease” includes the condition of adenocarcinoma of the kidney that was suffered by the veteran.
12. Under the Act a disease is regarded as defence-caused if it arose out of, or was attributable to, any defence service of the veteran: see s 70(5).
13. We must determine the application of the veteran to our reasonable satisfaction: s 120(4). The Federal Court of Australia has held that under such a provision, matters must be determined on the familiar civil standard of the balance of probabilities[4].
[4] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
STATEMENT OF PRINCIPLES
14. The Act establishes the Repatriation Medical Authority: s 198A(1). The Authority has the function to determine Statements of Principles: s 198B(1) .
15. If the Authority is of the view on the sound medical-scientific evidence available to it that it is more probable than not that a particular kind of disease can be related to defence service (other than hazardous service), it must determine a Statement of Principles in respect of that kind of disease setting out the factors that must exist; and which of those factors must be “related to service” rendered by a member; before it can be said that, on the balance of probabilities, a disease of that kind is connected with the circumstances of that service: s 196B(3). The Act provides that a factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a member if “it arose out of, or was attributable to, that service”: s196B(14)(b).
16. This application concerns the defence service rendered by the veteran: see s 120B(4). In these circumstances we are required to have regard to s 120B (3) of the Act which provides that, where a relevant Statement of Principles has been published by the Repatriation Medical Authority, a decision-maker is to be reasonably satisfied that a condition is defence-caused only if the material before the Commission raises the connection between the disease and some particular service rendered by a claimant: s 120B(3)(a). It is also necessary that the Statement of Principles upholds the contention that the disease of the claimant is, on the balance of probabilities, connected with the service of the claimant: s120B(3)(b).
17. The Repatriation Medical Authority has determined a Statement of Principles for Adenocarcinoma of the Kidney: Instrument No. 88 of 2001. This Statement of Principles was in force at the date of the claim of the veteran. We also mention that this Statement of Principles expressly provides that it applies to claims under s 120B of the Act[5].
[5] Clause 9 of the Statement of Principles.
18. The fact that a Statement of Principles is in force does not interfere with the scheme of s. 70 of the Act which requires that for an entitlement to pension to exist there must be a defence-caused disease: see s 196B(4)[6].
[6] Note 2 to s 198B has a typographical error in referring to s 69 instead of s 70.
ISSUES
19. We have to determine whether there is reliable evidence that the veteran was subject to respirable asbestos fibres for the period of 2000 hours as prescribed by factor 5(b)(i) of the Statement of Principles for Adenocarcinoma of the Kidney: Instrument No. 88 of 2001.
20. We also have to determine whether (as contended by the respondent) the principle of interpretation of noscitur a sociis applies to the interpretation of the word “dislodgement” as it appears in factor 5(b)(i) of the Statement of Principles for Adenocarcinoma of the Kidney: Instrument No. 88 of 2001.
21. In interpreting factor 5(b)(i) of the Statement of Principles for Adenocarcinoma of the Kidney: Instrument No. 88 of 2001, it is also necessary that we determine the date of clinical onset of the condition of adenocarcinoma of the kidney.
MEDICAL EVIDENCE
22. On 9 December 2003 Dr B Canagasingham FRCS, urological surgeon, reported that on 12 December 2002 the veteran was found to have a 3.5 cm lesion in the left kidney in the course of investigations for epigastric discomfort. Dr Canagasingham reported that histopathology of the left kidney confirmed the presence of a renal cell carcinoma of clear cell type. Dr Canagasingham reported that he recommended a left radical nephrectomy: this procedure was carried out on 17 December 2002. Dr Canagasingham also reported that subsequent reviews found no evidence of tumour recurrence. The report of Dr Canagasingham was admitted into evidence[7].
[7] T7, fols. 104-105.
EVIDENCE OF VETERAN
23. The veteran gave evidence before us. In giving evidence he verified the contents of his statements which had been tendered in evidence[8].
[8] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2); Statement of Garry Baverstock, 23 July 2007 (Exhibit A3).
24. The veteran gave evidence that on 13 June 1973 he enlisted in the Royal Australian Navy. In the Navy he was a marine technician and a radio operator.
25. On 6 October 1975 the veteran joined HMAS Stuart as an Able Seaman Operator. The veteran said that at that time the ship was having a “half life refit” at the Williamtown Dockyard in Melbourne. At that time he performed various duties such as aerial maintenance, chipping and painting, putting equipment back into the communications centre and reassembling the sleeping quarters. At this time there was considerable dust. The veteran stated that he was not given any safety protection to prevent the inhalation of any fibres.
26. While HMAS Stuart was undergoing the refit, the veteran slept at a hostel in Maribyrnong. The refit of HMAS Stuart was completed in November 1975 when that vessel was able to travel to the home port of Sydney in November 1975. The veteran in one statement remarked that the “confines of the ship were not adequately cleaned until the ship returned to Sydney in December 1975[9].
[9] Statement of Garry Baverstock, 23 July 2007 (Exhibit A3), para 12.
27. Although the veteran was initially posted to HMAS Stuart, he was also assigned duties on HMAS Supply for a three month period. After then he had duties on shore and patrol boats, his first sea attachment was in October 1976 when he served on HMAS Stuart.
28. The veteran mentioned in his statement an estimation of the time that he would have spent at sea. He mentions in his statement that he had one three month trip and one six month trip on HMAS Stuart with the balance of the time doing weekly runnings[10]. In proceedings before the Veterans’ Review Board he stated that he could recall two three month stints involving sailing to America, one tour to the Far East for six months and trips to Jarvis Bay[11].
[10] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 7.
[11] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 7.
29. The veteran mentioned in one statement that when he served on HMAS Supply he spent twelve weeks at sea[12]. He mentions in that statement that on HMAS Parramatta he had one four week trip and 12 weeks of weekly runnings[13]. He also mentions that he was posted to HMAS Stuart for 104 weeks.
[12] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 7.
[13] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 7.
30. The veteran remarked that HMAS Stuart; HMAS Derwent; HMAS Yarra; and HMAS Parramatta were all “River” class destroyer escorts. Each of these “River” class destroyer escorts were of a similar design having two steam turbines. He remarked that the “River” class destroyer escorts were very old and were heavier than modern ships. They were also outdated by modern technology. The “River” class vessels would shudder when the vessels were at high speed or in rough weather. The vessels would not shudder under normal cruising. The veteran mentioned that the vessels would also shudder when the guns were fired: this firing would occur on demand and, at least, once a week.
31. The veteran in one statement mentions that in the “River” class vessels insulated steam pipes ran though the halls and in the sleeping quarters, through the halls and in the eating quarters, but that there were no steam pipes in the communications centre[14]. In oral evidence he stated that the steam pipes were in the passageways. In that statement it was also mentioned that HMAS Supply had insulated pipes running through the lower decks[15].
[14] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 3.
[15] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 5.
32. The veteran said that the steam pipes would shudder when the guns were fired. He also said that the steam pipes vibrated in rough weather and when the ship was rapidly accelerating.
33. In one of his statement the veteran referred to the condition of the steam pipes. He remarked:
“Pipes on these ships were insulated with asbestos, and the asbestos was sealed with paint. I recall the paint would often chip, crack and peel away leaving gaps of up to two inches in the seal. The condition of the trunking would depend on how recently it had been applied.”[16]
[16] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 5.
This is evidence that the asbestos pipes were exposed to the air in the ship. This evidence was not challenged during cross-examination nor contradicted by other evidence.
34. The tenor of the oral evidence of the veteran was that personnel on the ships would lean against the steam pipes.
35. The veteran in his oral evidence stated that there was a lot of dust on the “River” class ships. His bedding was covered by dust. The tenor of his evidence was that he and the other sailors were living in cramped quarters and there was the recirculation of air within the ships.
HISTORICAL RESEARCH
36. Associate Professor John McCarthy, Visiting Fellow, Australian Defence Force Academy made two reports which were admitted into evidence. We have taken account of the following extracts from those reports.
37. Professor McCarthy in his report of 21 June 2007[17] reported that the Naval Historical Branch has been unable to confirm whether, as assumed by the Veterans’ Review Board[18], as from 1980 all naval ships were sealed in order to comply with strict occupational health and safety requirements which had come into force by then. Professor McCarthy reported that The Naval Historical Branch had neither records nor historical knowledge concerning the sealing of asbestos lagging. Professor McCarthy was unable to locate neither any naval direction on this subject nor any reference on the internet.
[17] Exhibit R1.
[18] T2, fol 11.
38. Professor McCarthy in his report of 30 October 2007[19] has estimated that the veteran spent 1752 hours on HMAS Derwent, 2736 hours on HMAS Yarra and 7464 hours on HMAS Parramatta.
[19] Exhibit R2.
DIAGNOSIS
39. We have to determine the appropriate diagnosis for the condition of the veteran. The respondent has properly conceded that the veteran has sustained the condition of adenocarcinoma of the left kidney[20]. There is uncontradicted evidence before us from the report of Dr Canagasingham that the veteran has sustained this condition. Dr Canagasingham reported that the histopathology of the left kidney confirmed the presence of a renal cell carcinoma of clear cell type. We accordingly find that that the veteran has sustained the condition of adenocarcinoma of the left kidney.
[20] Respondent’s Statement of Facts and Contentions, 31 January 2008, para 5.1.
CONSIDERATION
40. We now have to determine whether the diagnosed condition of adenocarcinoma of the kidney is defence-caused within the meaning of s 70 of the Act.
41. At the outset, we would mention that we regard the veteran as a truthful witness who gave evidence to the best of his ability without any embellishment. There were some minor inconsistencies in his evidence but we would regard those inconsistencies as being explained by the fact that the veteran was honestly attempting to recall events of more than twenty years ago.
42. In assessing the veteran as a truthful witness we have noted that although the basis of his claim was the time that he spent on “River” class destroyer escorts, in a number of instances he gave evidence against his interest in disclosing his services that were not served on “River” class vessels such as his duties at shore establishments and patrol boats. We also mention that those periods of service which were not served on “River” class vessels are not apparent from the official records. For example, he said that when he was first posted to HMAS Stuart, he slept at a hostel in Maribyrnong.
43. We mention that the veteran fully disclosed his shore duties during his naval service even though those shore duties do not appear to be stated in the records. The veteran in his oral evidence remarked that he spent 18 months at Nowra, although in one statement he mentioned that he served on HMAS Albatross (which is the naval shore establishment at Nowra) for some 100 weeks[21]. The veteran mentioned in one statement that he served on HMAS Waterhen, another shore establishment, for a period of sixteen weeks[22]. One statement also mentions his service on the shore establishment of HMAS Harmon for a period of fifty-six weeks[23]. The veteran also mentioned in his statement that he served on HMAS Kattabul, another shore establishment, for a period of fourteen weeks[24]. The veteran has accordingly given evidence of the considerable amount of time that he spent on shore duties.
[21] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 2.
[22] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 2.
[23] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 2.
[24] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 2.
44. The veteran has also disclosed his considerable service on patrol boats: this service is not apparent from the records. He mentioned in his statement that he served on HMAS Buccanner, a patrol boat, for a period of some twenty-six weeks[25]. He also mentioned in that statement that he served on HMAS Barricade, another patrol boat, for a period of some sixty-four weeks[26].
[25] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 7.
[26] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), para 7.
45. We are initially required to consider whether the material before us raises a connection between the disease of adenocarcinoma of the kidney suffered by the veteran and his service in the Royal Australian Navy: s 120B(3)(a).
46. We appreciate that the basis of the claim of the veteran is the time that he spent on “River” class destroyer escorts and that such ships had asbestos pipes which were exposed to the air in those ships. In these circumstances we find that there is a necessary connection between his naval service and the disease of adenocarcinoma of the kidney. We have not at this stage determined whether any of the factors in the Statement of Principles have been satisfied. However, in determining whether the necessary connection exists in terms of s 120B(3)(a) of the Act, we have had regard to what we refer to as factor 5(b) of the Statement of Principles for Adenocarcinoma of the Kidney: Instrument No. 88 of 2001 which points to a connection between adenocarcinoma of the kidney and the inhalation of asbestos fibres.
47. We now turn to consider whether the Statement of Principles upholds the contention that the disease of the veteran is, on the balance of probabilities, connected with the service of the claimant: s120B(3)(b).
48. Clause 5 of the Statement of Principles for Adenocarcinoma of the Kidney: Instrument No. 88 of 2001 lists various factors that must exist for adenocarcinoma of the kidney to be connected with the circumstances of a person’s relevant service. One factor (that has been referred to as factor 5(b)) is:
“inhaling respirable asbestos fibres for a cumulative period of at least 2000 hours:
at the time material containing asbestos fibres was being applied, removed, dislodged, cut or drilled, and
the first inhalation of asbestos fibres commenced at least 15 years
before the clinical onset of adenocarcinoma of the kidney”.
The application of factor 5(b) raises a number of issues.
49. One issue that was raised by the respondent was whether the principle of interpretation of noscitur a sociis (it is known from its companions) applies to the construction of the word “dislodgement” as it appears in factor 5(b)(i) of the Statement of Principles for Adenocarcinoma of the Kidney: Instrument No. 88 of 2001. For such a construction to be given to the word “dislodgement” it would have the consequence that it was also when material containing asbestos fibres was being applied, removed, cut or drilled that the factor would operate.
50. In Vietnam Veterans’ Association of Australia New South Wales Branch Inc v Cohen[27], Tamberlin J explained that Statements of Principle are legislative instruments. In Wallis v Repatriation Commission[28], Senior Member M.D. Allen has pointed out that this has the consequence that a Statement of Principles “is subject to the normal canons of statutory interpretation” [29]. The Act is beneficial legislation[30]. We have applied the principle that an instrument made under such legislation “should be construed so as to give the fullest relief which the fair language of its language will allow”[31] without any artificial straining of the language.
[27] (1996) 70 FCR 419.
[28] (2000) 62 ALD 502.
[29] (2000) 62 ALD 502 at 509 [32].
[30] Magdalinski and Repatriation Commission [2000] AATA 108 (Deputy President Breen & Dr KP Kennedy).
[31] Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384, cited by Keeley J in Repatriation Commission v Hayes (1982) 5 ALD 8 at 11.
51. We appreciate that adopting the noscitur a sociis approach of interpretation would lead to the delimitation of the scope of a word[32]. We are, however, in this instance not prepared to give a restrictive interpretation to the word “dislodgement” which is “the act of dislodging” [33]. One dictionary meaning of “dislodge” is to “remove or turn out of a place of lodgement” or to “shift the position of” [34]. We do not consider that we would strain the meaning of “dislodgement” if we regard it to include a situation where the position of steam pipes is shifted through vibration, whether that vibration is caused by rough weather or the firing of guns. We also consider that the steam pipes could be dislodged if they were leant on by naval personnel.
[32] See D.C. Pearce & R. Geddes, Statutory Interpretation in Australia (6th ed, 2006), 133.
[33] Shorter Oxford English Dictionary (3rd ed., 1975), 570.
[34] Shorter Oxford English Dictionary (3rd ed., 1975), 570.
52. We also mention that the context where the noscitur a sociis approach is sometimes utilised is where a penal statute is given a strict construction.[35] We do not consider that the approach is warranted to limit the operation of a beneficial legislative instrument.
[35] See for example Prior v Sherwood (1906) 3 CLR 1054.
53. Another issue that we have to consider is the date of “clinical onset” of the condition of adenocarcinoma of the kidney. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission[36]. The Full Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission[37], in which Senior Member Dwyer concluded that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
[36] (2002) 125 FCR 331.
[37] (1998) 50 ALD 668 at 670.
54. This analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius[38]. Dr B Canagasingham in his report has mentioned that on 12 December 2002 the veteran was found to have a 3.5 cm lesion in the left kidney. Dr Canagasingham also reported that histopathology of the left kidney confirmed the presence of a renal cell carcinoma of clear cell type[39]. The report is evidence that Dr Canagasingham after investigation made a finding on 12 December 2002 that the condition of adenocarcinoma of the kidney was then present. We accordingly find that the date of clinical onset of adenocarcinoma of the kidney is 12 December 2002.
[38] [2002] FCA 750 at [26]. See also Youngnickel v Repatriation Commission [2004] FCA 1691 at [26] per Bennett J.
[39] T7, fol 104.
55. In considering the application of factor 5(b) of the Statement of Principles we have to consider when there was the first inhalation of asbestos fibres by the veteran. On his evidence it would have commenced on or after 6 October 1975 when the veteran joined HMAS Stuart as an Able Seaman Operator. At that time the ship was having a “half life refit” at the Williamtown Dockyard in Melbourne. He gave evidence that at that time he performed various duties including reassembling the sleeping quarters. He mentioned that there was considerable dust on the ship and that he was not given any safety protection to prevent the inhalation of any fibres. His evidence was that his first sea voyage was in October 1976 when he served on HMAS Stuart. At that time he served for a six month voyage and one or two three month voyages. His evidence was that the insulated steam pipes were in his sleeping quarters and that those steam pipes vibrated in rough weather, during the rapid acceleration of the ship and when the guns were firing. He also gave evidence that the steam pipes were exposed to the air in the “River” class ships.
56. Having regard to the evidence of the veteran, which was not challenged, we have taken the view that the first inhalation of asbestos fibres by the veteran would have been sometime in October 1975 and, at the latest, during his first sea voyage in October 1976. As we have found that the date of clinical onset of adenocarcinoma of the kidney is 12 December 2002, we consider that there is evidence before us which satisfies the requirement of factor 5(b)(i) that the first inhalation of fibres commenced at least 15 years before the clinical onset of adenocarcinoma of the kidney.
57. We next have to consider whether there is evidence before us that the veteran has inhaled respirable asbestos fibres for the necessary cumulative period of at least 2000 hours. In considering this issue the parties have agreed with the assumption that 30 per cent of the time that was spent at sea by the veteran would have been in rough or bumpy weather when asbestos fibres might have been dislodged. We consider this to be a reasonable assumption to make.
58. We now have to consider the time that was spent at sea by the veteran. Professor McCarthy has estimated that the veteran spent 1752 hours on HMAS Derwent, 2736 hours on HMAS Yarra and 7464 hours on HMAS Parramatta. This is a total of 11952 hours. Thirty percent of the time that was spent on these three “River” class vessels alone amounts to 3585 hours.
59. Professor McCarthy did not give an estimate of the time that the veteran spent on HMAS Stuart. In his statement the veteran mentioned that he served at sea on HMAS Stuart for two trips totalling, at least, nine months as well as the balance of the time (of 104 weeks) on weekly runnings of five days per week[40]. On this basis we estimate that the time that was spent at sea on the trips alone would have three quarters of the nine month period. We have adopted the methodology of the Veteran’s Review Board in assuming that three quarters of a posting would be at sea. This would be in excess of 270 days or a total of 6500 hours. This period of 6500 hours would not include the weekly “runnings” that the veteran has mentioned.
[40] Statement of Garry Baverstock, 1 November 2006 (Exhibit A2), paras 2, 7.
60. We find that the veteran would have been at sea on “River” class vessels for a period of at least 10,000 hours. We accept his evidence that whilst at sea he lived in confined quarters and that there was the recirculation of air within the ships. We also accept the evidence of the veteran that the asbestos pipes were in a state of disrepair.
61. We therefore conclude that factor 5(b) of the Statement of Principles for Adenocarcinoma of the Kidney: Instrument No. 88 of 2001 is satisfied. The Statement of Principles upholds the contention that the disease of the veteran is, on the balance of probabilities, connected with his service. We therefore conclude that the condition of adenocarcinoma of the left kidney is a defence-caused condition within the meaning of section 70 of the Act.
CONCLUSION
62. We are reasonably satisfied that the condition of adenocarcinoma of the left kidney suffered by the veteran is a defence-caused condition within the meaning of section 70 of the Act; that the veteran is entitled to receive a pension for incapacity associated with this condition with effect from and including 2 December 2003; and that the matter of assessment of the pension is remitted to the Repatriation Commission.
DECISION
63. The Tribunal sets aside the decision under review insofar as it relates to the condition of adenocarcinoma of the kidney, and substitutes the decision that:
(i) the condition of adenocarcinoma of the left kidney is a defence-caused condition within the meaning of section 70 of the Veterans Entitlement Act 1986;
(ii) Mr Garry Baverstock is entitled to receive a pension for incapacity associated with this condition with effect from and including 2 December 2003; and
(iii) the matter is remitted to the Repatriation Commission for the assessment of the pension.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member
Signed: ...........................[Sgd].....................................................
Jacqui Woods, AssociateDate/s of Hearing 6 May 2008
Date of Decision 5 June 2008
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Wyatt Attorneys
For the Respondent Mr J Kelly, departmental advocate
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