Blakeney and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 862
•11 November 2015
Blakeney and Repatriation Commission (Veterans’ entitlements) [2015] AATA 862 (11 November 2015)
Division GENERAL DIVISION File Number(s)
2013/6076
Re
Francese Blakeney
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 11 November 2015 Place Sydney The Tribunal sets aside the decision under review and in substitution decides that the death of the late Mr Blakeney was defence-caused and that the date of effect of the decision is 15 November 2012.
........................................................
Deputy President J W Constance
CATCHWORDS – Veterans’ Entitlements – widow’s pension – whether veteran rendered British nuclear test defence service – smoking – ischaemic heart disease – whether material points to hypothesis connecting death with circumstances of service – reasonable hypothesis – death of Veteran defence-caused – decision under review set aside
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 7, 8, 13, 69, 70 and 120
Cases
Repatriation Commission v Deledio (1998) 83 FCR 82
Dixon v Repatriation Commission [1999] FCA 582
East v Repatriation Commission (1987) 16 FCR 517
Secondary Materials
Statement of Principles concerning Ischaemic Heart Disease, No. 89 of 2007
REASONS FOR DECISION
INTRODUCTION
Mrs Blakeney is the widow of the late Mr Blakeney who served in the Royal Australian Air Force from 1956 until 1976. During his service he was posted to the Base Squadron in Edinburgh in South Australia, which was the Base to which ground personnel were posted for duty at Maralinga. The British Nuclear Testing Program was carried out at Maralinga from February 1957 to November 1958 and for a year from February 1963. During part of this time Mr Blakeney was stationed at the Edinburgh Base. He was posted to Ubon Air Base in Thailand in 1965 when it served as a base for aircraft involved in the Vietnam War.
Mr Blakeney died in 2012. Mrs Blakeney claims that her husband’s death was related to his service in the Air Force. Her claim for a pension under the Veterans’ Entitlements Act 1986 (Cth) is based on three different aspects of his service – his British nuclear test defence service (being defence service), his service in Thailand (being operational service and therefore eligible war service) and his remaining service in the Air Force (being defence service). Her claim has been refused by the Commission and Mrs Blakeney has applied to this Tribunal for a review of that decision.
For the reasons which follow the decision under review will be set aside and it will be decided that Mr Blakeney’s death was defence-caused.
MATERIAL BEFORE THE TRIBUNAL
Mr Blakeney’s service records
Mr Blakeney was born in 1929. He was a member of the Royal Australian Air Force from 23 February 1956 until 18 August 1976. He served in Thailand from 29 July 1965 until 28 January 1966 during which time Australia was engaged in the Vietnam War.[1]
[1] Exhibit R2 p.1.
Mrs Blakeney’s evidence[2]
[2] Exhibit A1, exhibit R1 p.94 and oral evidence.
Mr and Mrs Blakeney first met in 1972. They married in 1981.
In 1972 Mr Blakeney regularly smoked 20-30 cigarettes per day. He continued to smoke at this rate until about the time of their marriage when he ceased smoking. He told Mrs Blakeney that he started smoking after he joined the Air Force as “it got a little bit stressful at times”[3] and because all of his mates were smoking.
[3] Transcript 12/8/14.
Mr Blakeney was reluctant to talk about his experiences in the Air Force. However, two to three years after they were married, Mr Blakeney told Mrs Blakeney that he was at Maralinga during the nuclear tests. He told Mrs Blakeney that after the tests:
… we were directed to go … [onto the site] and remove what was left, for the British personnel to carry out tests on. When we handed over the collected materials to the British personnel we noticed that they were in protective clothing. Upon asking why they were clothed that way and not us (we went in to do this work in our normal working attire), we learned that the area was still contaminated. On hearing this, I became concerned and stressed as we had all seen pictures and read about the atomic bombs exploded in Japan and we did not know what chemicals the bomb was composed of and we could be breathing them in and absorbing them through our skin.[4]
[4] Exhibit R1 p.94.
Mr Blakeney mentioned this experience from time to time in later years but did not provide any further information.
Mr Blakeney suffered osteoarthritis in his knees. He had difficulty in kneeling and climbing stairs. As a result of the problems with his knees Mr Blakeney stopped gardening about 1980 and stopped dancing in about 1984. He reduced the amount of walking he did and stopped playing golf regularly at about that time although he continued to play some golf with his grandson. From about 2000 he would only use the stairs in their home when necessary. Generally he experienced greater difficulties with his knees from 2000 onwards.
Mr Shirmyer’s evidence[5]
[5] Exhibit A2 and oral evidence.
Mr Shirmyer served with Mr Blakeney in the Air Force in Australia and in Thailand. They both worked as members of ground crews in Thailand; their work was repetitive in nature.
Mr Shirmyer recalls Mr Blakeney telling him of an incident on the Ubon Base when Mr Blakeney was involved in a stressful situation. Mr Blakeney was engaged in refuelling an aircraft when an inexperienced worker working with him caused a fire in the hanger. There was a risk that the hanger may have caught fire. Mr Blakeney spoke about this incident for “quite a while.” [6]
[6] Transcript 12/8/14.
Mr Blakeney smoked while he was working at the Ubon Base. On several occasions he told Mr Shirmyer that he was giving up smoking. He would then stop smoking but would resume a short time later.
Mr Shirmyer found it difficult to sleep on the Base by reason of the noise of the aircraft. He does not know if Mr Blakeney was affected by the noise.
On occasions Mr Blakeney mentioned to Mr Shirmyer that he had served at Maralinga. He referred to the isolation of working there but he did not say what he did, except that he worked as part of a ground crew.
Claimant Report completed by Mr Blakeney on 28 January 2005[7]
[7] Exhibit R1 p.5-6.
In this report submitted to the Department of Veterans’ Affairs, Mr Blakeney stated that:
·he first started to smoke on a regular basis about 1957;
·the reason he started to smoke was “standard habit – everyone was smoking”;
·at that time he smoked approximately 20 tailor-made cigarettes and two ounces of tobacco per day;
·the amount he smoked did not change after he started smoking;
·he permanently stopped smoking on 1 January 1997.
Mr Blakeney’s Service Medical Records[8]
[8] Exhibit A5.
An Outpatient Clinical Record of the No.3 R.A.A.F. Hospital dated 5 February 1973 records Mr Blakeney as a non-smoker.
The records show that on 9 April 1963 the “R.M.O. Maralinga Village Hospital” made a request for an annual chest x-ray be taken of Mr Blakeney. The report of this x-ray is dated 19 April 1963.[9]
[9] Exhibit A5 p.57.
The records also show that Mr Blakeney received vaccinations at the Maralinga Medical Unit on 16 March 1963, 26 March 1963, 28 March 1963, 16 April 1963, 20 April 1963 and 28 October 1963.[10]
[10] Exhibit A5 p.67.
Reports of Writeway Research Services Pty Ltd
Writeway Research Services provided two reports dated 13 March 2014[11] and 5 June 2014[12].
[11] Exhibit A3.
[12] Exhibit A4.
Mr Blakeney’s service
Mr Blakeney initially enlisted for six years. His RAAF trade was “Motor Transport Fitter Grade 2”. He was re-engaged on three occasions, the last being 23 February 1973. His posting history is as follows:
·23 February 1956 No 1 Recruit Training Unit Wagga Wagga (NSW);
·12 June 1956 Adult Training Squadron Wagga Wagga;
·6 February 1957 Base Squadron Edinburgh (SA);
·17 November 1958 Adult Training Squadron Wagga Wagga;
·7 November 1960 No 2 Air Trials Unit Edinburgh;
·25 February 1963 Base Squadron Edinburgh;
·25 February 1964 Base Squadron Pearce (WA);
·3 October 1964 No1 Advanced Flying Training School Pearce (WA);
·29 July 1965 Base Squadron Ubon (Thailand);
·28 January 1966 Posting at Ubon ended;
·29 September 1970 RAAF School of Technical Training Wagga Wagga;
·28 February 1975 No 38 Squadron Richmond;
·28 July 1975 No 486 Maintenance Squadron Richmond.
British Nuclear Testing at Maralinga
On 5 June 2014 Writeway Research Service Pty Ltd reported:
6. The period during which (then) LAC Alonzo Blakeney was posted to Edinburgh is relevant to this report, that is from 6 Feb 1957 to 17 Nov 1958 when he was posted to the Adult Training Squadron, Wagga. Operation ANTLER was conducted during the period from August to November 1957 which was the last in the series of British atomic tests. Bombs were dropped at Maralinga on 14 Sep 1957, 25 Oct 1957 and 9 Oct 1957. Reference b) above states that
“the RAAF contribution to Operation ”ANTLER” was a Wing Commander, Flying, a fully trained Canberra crew, five operating officers, six Air Traffic Control and ground personnel for the Maralinga Range Support Unit …… RAAF ground personnel were posted to Base Squadron, Edinburgh for duty at Maralinga.” (emphasis in original)
7. These dates for Operation ANTLER align with the Veteran’s service rendered at RAAF Base Edinburgh in SA. Given that his RAAF trade mustering at the time was as a vehicle mechanic (MT Fitter), he would have been a participant as defined above. That is being one of the total of 3,201 members of the RAAF that were involved in the conduct and support of the British atomic tests – having been posted to the Base Squadron at RAAF Edinburgh for the purpose of RAAF duty at Maralinga.
……
9. There is no information in the Veteran’s service record to indicate participation in these tests. The research staff at the Office of Air Force History stated that this is not surprising given the secrecy and security surrounding the whole test series.
……
11. The (then) LAC Alonzo Blakeney was definitely posted to the Base Squadron at RAAF Edinburgh at the time of Operation ANTLER, and RAAF ground personnel were posted to Base Squadron, Edinburgh for duty at Maralinga.[13]
[13] Exhibit A4 pp4-6.
Service conditions at Ubon
The following material is taken from the report of 13 March 2014:
Shortly after being deployed in 1962 the RAAF domestic area was quite comfortable, with separate Officers’, Sergeants’ and Airman’s’ kitchens, messes and ‘wet canteens’ that sold alcohol and cigarettes etc at duty-free prices. … In summing up, boredom, tedium and isolation were the biggest issues facing the RAAF and allied forces personnel posted to UBON. The after-hours recreational activities at UBON were largely confined to sporting fixtures, but social life was largely centred around the unit’s wet canteen or at the local bars. The only alternative recreation for Allied military personnel based at UBON took the form of leave visits to Bangkok. [14]
[14] Exhibit A3 pp.6-7.
Availability of cigarettes and culture of smoking
The Writeway Report (exhibit A3) stated:
At the time the Veteran joined the RAAF, smoking as a habit was entrenched in the Australian way of life, and the servicemen’s smoking habits followed community practise [sic]. Cigarettes were readily available; they were relatively much cheaper during the period under review – especially in Ubon where they were duty-free. … The “smoko” was a well-established practise [sic], peer pressure and a smoke as a break from the task in hand encouraged smoking which was both regular and in significant amounts.[15]
[15] Exhibit A3 p.9.
British Nuclear Testing at Maralinga
The Writeway Reports provide the following material:
9. British Nuclear tests at Maralinga occurred between 1956 and 1963 at the Maralinga site, part of the Woomera Prohibited Area, in South Australia. A total of seven nuclear tests were performed, with approximate yields ranging from 1 to 27 kilo-tonnes of TNT. The site was also used for hundreds of minor trials, many of which were intended to investigate the effects of fire or non-nuclear explosions on atomic weapons.
10. The site was contaminated with radioactive materials and an initial cleanup was attempted in 1967. The McClelland Royal Commission, an examination of the effects of the tests, delivered its report in 1985, and found that significant radiation hazards still existed at many of the Maralinga test areas.
11. Maralinga was an example of extreme secrecy and there is no mention in the Veteran’s files of being deployed in support of, or after, these tests. The only reference to his involvement in atomic testing is in a statement by Mrs Blakeney. However he was posted to RAAF base Edinburgh from November 1960 to February 1964 and this is the closest RAAF base to the test site. There is a possibility that he was involved in the trials, but was he re-posted to Base Sqn Pearce WA before the clean-up operation at Maralinga – which was probably more hazardous.[16]
[16] Exhibit A3 paras 9 – 11.
Stress arising from Mr Blakeney’s family situation
There is an unexplained gap in the history of Mr Blakeney’s postings. His personnel file shows that he was posted to Darwin for some time prior to 1 December 1972 when he was posted to Richmond. At about this time he applied for posting on compassionate grounds.
The Writeway report of 13 March 2014 states:
The Veteran’s files show evidence of domestic stress. When he was posted from Darwin to NSW his then wife refused to accompany him. She, and their two daughters, moved to her parental family in Perth. The Veteran moved, with his two sons, to NSW. He made a number of attempts to be posted from Richmond to Williamtown to be closer to his brother who, together with the brother’s wife, was caring for his school aged sons. His requests for reposting on compassionate grounds were denied. A divorce followed.[17]
[17]Exhibit A3 para. 13.
Evidence of Associate Professor Haber, Consultant Physician, Cardiologist
Professor Haber provided a report dated 16 December 2014[18]and gave evidence.
[18] Exhibit A6.
In his report Professor Haber stated:
…… it appears that he had some evidence of ischaemic heart disease already in June 1976.
He had symptoms of paroxysmal tachycardia recorded already early in 1968 and again in 1972. Although at the time it was thought to be due to anxiety state, the actual episodes were not caught by an ECG and therefore one cannot state whether these attacks were due to paroxysmal sinus tachycardia (induced by stress) or other type of tachycardia (of a more serious nature). This may have been the early onset of symptoms of ischaemic heart disease.
Evidence of Professor O’Rourke, Cardiovascular Specialist
Professor O’Rourke provided a report dated 2 March 2015[19] and gave evidence.
[19] Exhibit R3.
Having perused the medical records, Professor O’Rourke was of the view that there was no evidence of the onset of Mr Blakeney’s ischaemic heart disease until 2013, being the year he died.
Additional material as to the condition of Mr Blakeney’s knees
In a Claimant Report dated 28 January 2005[20] Mr Blakeney stated that he had a history of lifting or carrying heavy loads (at least 25 kg) three or four times per day from 1956 to 1976. He gave examples of lifting tractor tyres and motors.
[20] Exhibit R1 p.73.
On the same date he reported that he had a history of kneeling or squatting for at least an hour a day, on more days than not, on a regular basis between 1956 and 1977.[21] He said this was a result of working on aircraft and vehicles and that he first noticed symptoms in his right knee “about 20 years ago & slowly worsening.” [22]
[21] Exhibit R1 p.75.
[22] Exhibit R1 p.76.
In October 2004 Mr Blakeney reported that he was “unable to dance, play sport, sit for any length of time eg. movies, concerts etc.” [23]
[23] Exhibit R1 p.87.
In January 2005, Dr Kwa, General Practitioner, assessed Mr Blakeney as experiencing stiffness in his lower limbs when he knelt, needing the assistance of a hand-rail to negotiate stairs and to rest because of aching knees when ascending or descending stairs.[24]
[24] Exhibit R1 p. 70.
On 3 March 2005[25] Dr Reece, Orthopaedic Surgeon, reported:
When he was in the armed forces he worked as a fitter and general maintenance. … He worked hard during his time in the armed forces, in the Air Force, doing heavy manual labour as required of him. He did sustain a number of injuries to his shoulders and knees while working in difficult positions and getting some neck discomfort…. He also noted that he did have a number of falls onto both knees but again he never reported any of these incidents during his time and cannot remember specific details about them as they were a very long time ago.
…
His knees have bilateral patella-femoral crepitus within them consistent with osteoarthritis but there is no effusion and they are stable.
… Patrick has evidence of osteoarthritis in multiple areas, neck, shoulders, knees but not particularly in his hips. It is hard to say whether this is directly linked to his injuries sustained in the armed force as he cannot remember specific dates or instances other than the fall onto his right shoulder, however certainly doing heavy manual labour as a young person, as he described to me, and the positions he had to get in regarding all of this could have lead [sic] to the beginning of changes to the joint surfaces consistent with what we find now in a 75 year old gentleman who, despite his arthritis, is reasonably active with no particular loss of function in walking distance or standing or sitting durations.
LEGISLATIVE BACKGROUND
[25] Exhibit R1 p.65.
A. Pension payable to a dependant under Part II of the Act
Section 13 provides for the payment of a pension to a widow of a veteran by way of compensation when the death of the veteran was war-caused.
War-caused death
Section 8 of the Act sets out the circumstances in which the death of a veteran is taken to be war‑caused. The relevant parts of that section are:
8 War‑caused death
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to be war‑caused if:
(a) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
Eligible war service includes operational service – subsection 7(1)(a).
B. Pension payable to a dependant under Part IV of the Act
Section 70 provides for the payment of a pension to a widow of a member of the Forces by way of compensation when the death of the member was defence-caused.
Defence-caused death
Subsection 70(5) sets out the circumstances in which the death of a member is taken to be defence-caused. The relevant parts of that subsection state:
(5) For the purposes of this Act, the death of a member of the Forces … shall be taken to have been defence-caused …… if:
(a) the death … arose out of, or was attributable to, any defence service … of the member.
Defence service includes British nuclear test defence service – subsection 68(1).
C. Standard of proof
Section 120 relevantly provides:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect … of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine … that the death of the veteran was war‑caused, … 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)Where a claim under Part IV:
…
(c) in respect of the incapacity … of a member of the Forces, or the death of such a member, relates to British nuclear test defence service rendered by the member… the Commission shall determine … that the death of the member was defence‑caused, … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination
…
Note 2: This subsection is affected by section 120A.
(3)In applying subsection (1) or (2) … 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:
…
(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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
Reasonable hypothesis and a Statement of Principles
Subsection 120A(3) provides:
For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
APPLYING THE LAW
In Repatriation Commission v Deledio[26] the Full Court of the Federal Court set out the steps to be taken in determining claims which arise from operational service such as this:
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 a SoP [Statement of Principles] 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 a 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 or 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.
[26] (1998) 83 FCR 82, 97-98.
ISSUES FOR DETERMINATION
I have to determine the following issues.
1)Did Mr Blakeney render “operational service” and if so, when?
2)Did Mr Blakeney render “British nuclear test service” and if so, when?
3)Within the meaning of s 120A(4) of the Act, what was the “kind of death” met by Mr Blakeney?
4)Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of Mr Blakeney’s British nuclear test service or his operational service?
5)Is there a relevant Statement of Principles in force?
6)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement?
7)If so, am I satisfied beyond a reasonable doubt that the death of the late Mr Blakeney was not caused by his British nuclear defence service or his operational service?
DETERMINATION OF THE ISSUES
Issue 1: Did Mr Blakeney render operational service and if so, when?
On the basis of Mr Blakeney’s service records I am satisfied that he rendered operational service in Thailand between 29 July 1965 and 28 January 1966. This is not in dispute.
Issue 2: Did Mr Blakeney render British nuclear test defence service and if so, when?
Subsection 69B(2) of the Act provides, in part:
(1) This Part applies to a person who has rendered British nuclear test defence service.
(2) A person rendered British nuclear test defence service while the person was a member of the Defence Force and rendered service in an area described in the table at any time during a period described in the table for that area:
British nuclear test defence service in an area within a period
Item
Area
Period
…
…
3
The area within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga
The period:
(a) starting at the start of 27 September 1956; and
(b) ending at the end of 30 April 1965
(3) A person rendered British nuclear test defence service while the person was a member of the Defence Force and was involved at any time during a period described in the table in the transport, recovery, maintenance or cleaning of a vessel, vehicle, aircraft, or equipment that was contaminated as a result of its use in an area described in the table for that period.
British nuclear test defence service relating to work on contaminated things
Item
Period in which involvement occurred
Area where thing was contaminated
…
…
3
The period:
(a) starting at the start of 27 September 1956; and
(b) ending at the end of 30 May 1965
The period:
(a) starting at the start of 27 September 1956; and
(b) ending at the end of 30 April 1965
(4) A person rendered British nuclear test defence service while the person was a member of the Defence Force and, at a time between the start of 3 October 1952 and the end of 31 October 1957, flew in an aircraft of the Royal Australian Air Force or the Royal Air Force that was at that time:
(a) used in measuring fallout from nuclear tests conducted in an area described in the table in subsection (2); and
(b) contaminated by the fallout.
(5) A person rendered British nuclear test defence service while the person was a member of the Defence Force if the person satisfies the requirements specified in an instrument under subsection (6).
(6) The Commission may, by legislative instrument, specify requirements for the purposes of subsection (5).
The Commission concedes that Mr Blakeney rendered British nuclear test defence service from 25 February 1963 to 25 February 1964. I am satisfied that this is a proper concession.
There is an issue as to whether Mr Blakeney rendered British nuclear test defence service during the period of his posting to Base Squadron Edinburgh from 7 February 1957 to 17 November 1958. I am to decide this question on the balance of probabilities.
Unlike the 1963/1964 posting, there is no direct evidence that Mr Blakeney was deployed at Maralinga in 1957/1958. However on the basis of the evidence of the report from Writeway Research Service I am satisfied that Operation ANTLER was conducted during the period August to November 1957 and that this was the last in the series of British tests. I am satisfied further that RAAF ground crews were posted to Base Squadron Edinburgh for duty at Maralinga. Mr Blakeney was posted to the Base as ground crew during the whole of the time of Operation ANTLER.
Mrs Blakeney said that Mr Blakeney told her that he had gone onto the test sites before and after the explosions and removed debris for testing. On the basis of this evidence I am satisfied that Mr Blakeney was present at the site of the testing and that on the balance of probabilities it was during the tests carried out in 1957.
I am satisfied that Mr Blakeney rendered British nuclear test defence service from 7 February 1957 to 17 November 1958 and from 25 February 1963 to 25 February 1964.
Issue 3: What was the kind of death met by Mr Blakeney?
The kind of death is the medical cause of death[27] and must be established on the balance of probabilities.[28] The death certificate records ischaemic heart disease and congestive cardiac failure (of four hours duration) as the causes of Mr Blakeney’s death.[29] I am satisfied that the kind of death suffered by Mr Blakeney was ischaemic heart disease. This is not in dispute.
Issue 4: Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of Mr Blakeney’s British nuclear test defence service or his operational service?
[27] Collins v Repatriation Commission [2009] FCAFC 90.
[28] Repatriation Commission v Hancock [2003]FCA 711.
[29] Exhibit R1 p.9.
It is put on behalf of Mrs Blakeney that the material before me points to the following hypothesis:
a.Mr Blakeney commenced smoking during his period of British nuclear test defence service in 1957 as a result of peer group pressure and stress arising from his involvement in the nuclear testing;
b.Mr Blakeney smoked tobacco from approximately 1957 until 1997;
c.Mr Blakeney’s smoking habit caused him to suffer ischaemic heart disease;
d.Mr Blakeney died from the effects of ischaemic heart disease.
The hypothesis under consideration must be more than one which is left open on the material before me. It must be a hypothesis which is pointed to, or supported by, the material.
Having considered all of the material before me I determine that it does point to a hypothesis connecting Mr Blakeney’s death to his British nuclear test defence service.
The material indicates that Mr Blakeney did not smoke tobacco on a regular basis until after he enlisted in the Air Force and that he did not start smoking until he was 28 years old. This was at a time when between 43% and 72% of Australian men smoked and when smoking was entrenched in the Australian way of life.[30]
[30] Exhibit A3 pg 9.
The report completed by Mr Blakeney indicated that he continued to smoke until 1997 at the rate of approximately 20 tailor-made cigarettes and 2oz. of tobacco per day.
The material points to the following hypothesis:
a. Mr Blakeney commenced smoking during his period of British nuclear test defence service in 1957 as a result of peer group pressure and stress arising from his involvement in the nuclear testing at Maralinga;
b. Mr Blakeney smoked tobacco from approximately 1957 until 1997 at a rate of 20 tailor-made cigarettes and 2 oz of tobacco per day;
c. Mr Blakeney’s smoking habit caused him to suffer Ischaemic heart disease;
d. Mr Blakeney died from the effects of ischaemic heart disease.
Issue 4: Is there a relevant Statement of Principles in force?
I am satisfied that a relevant Statement of Principles is in force being the Statement of Principles concerning Ischaemic Heart Disease, No. 89 of 2007.
Clause 4 of the Statement of Principles concerning Ischaemic Heart Disease provides:
The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Clause 5 provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Sub-clauses 6(g) and 6(h) relevantly provide:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service is:
…
(g)where smoking has ceased prior to the clinical onset of ischaemic heart disease:
…
(iii) smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; or
(h) where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
……
(ii) smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease
Clause 5 provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Pack years of cigarettes, or the equivalent thereof in other tobacco products is defined in clause 9 to mean:
a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
Issue 5: Is the hypothesis consistent with the template within the Statement of Principles?
In Dixon v Repatriation Commission [31] the Federal Court said:
The question whether a decision maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality. If belief is addressed at the step 3 stage, there is a risk that the decision maker will rule against a claimant simply because he or she is not persuaded the claimant's story is probably true. Although the decision maker should not think in terms of onus of proof, in a practical sense at the step 3 stage the claimant is likely to be left with this burden. Moreover, the decision maker is likely to reject the application even though he or she thinks the claimant's story may possibly be true. This would defeat the protection for veterans embodied in s120(1)…(original emphasis).
[31] [1999] FCA 582, [25].
Counsel for the Commission referred to the judgement in East v Repatriation Commission[32] in which the Full Court of the Federal Court said:
The necessity for quantitative evidence in a particular case must depend upon the nature of the hypothesis being expounded. For example, if a Tribunal accepts medical evidence that condition B may be caused by any degree of exposure to factor A, that the veteran was exposed to factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of the exposure. The hypothesis itself makes quantity irrelevant. If, on the other hand, the evidence is that exposure to quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reason to believe that the veteran was exposed to factor A to the extent of quantity X.
[32] (1987) 16 FCR 517, 533.
The material before me as to Mr Blakeney commencing smoking on a regular basis and his failed attempts to cease smoking while posted in Thailand, points to his smoking being related to his British nuclear test defence service. Mr Blakeney’s statement in the claimant report in 2005 points to his continuing to smoke until 1997.
The hypothesis is consistent with the template as there is material pointing to Mr Blakeney smoking at least 20 cigarettes per day over a period of 40 years, the equivalent of 40 pack years before he ceased smoking in 1997. There is material which points to the clinical onset of Mr Blakeney’s ischaemic heart disease in 2013. The hypothesis is consistent with factor 6(g)(iii) of the Statement of Principles.
Issue 6: Am I satisfied beyond a reasonable doubt that the death of Mr Blakeney was not war-caused?
On the basis of the evidence to which I have referred, and in particular the evidence of Mrs Blakeney as to Mr Blakeney’s statements as to the circumstances in which he commenced smoking and the quantity of tobacco consumed, I am not satisfied beyond a reasonable doubt that the death of Mr Blakeney was not war-caused.
CONCLUSION
In view of the conclusion I have reached it is unnecessary that I consider the alternative hypothesis put forward on behalf of Mrs Blakeney that:
·Mr Blakeney’s repeated lifting and/or his repeated kneeling or squatting caused him to suffer osteoarthritis in his knees;
·the osteoarthritis prevented him from exercising adequately;
·his inability to exercise caused him to suffer ischaemic heart disease which caused his death.
The decision under review, being the decision of the Repatriation Commission made 1 March 2013 rejecting Mrs Blakeney’s claim for a pension in accordance with the Veterans’ Entitlements Act 1986 (Cth), will be set aside.
In substitution it will be decided that the death of the late Mr Blakeney was defence- caused and that the date of effect of the decision is 15 November 2012.
I certify that the preceding 73 paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
.......................................................................
Associate
Dated 11 November 2015
Date(s) of hearing
12 August 2014 and 20 July 2015
Counsel for the Applicant
T Saunders
Solicitors for the Applicant
A-L Peterson, Kemp & Co
Counsel for the Respondent
T O’Reilly
0
4
1