Gordon Keith Hart and Repatriation Commission - [2014] AATA 564

[2014] AATA 564

Division VETERANS' APPEALS DIVISION

File Number(s)

2014/0838

Re

Gordon Keith Hart

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr John Handley, Senior Member

Date 14 August 2014

Place Melbourne
The Tribunal sets aside the decision of the respondent dated 19 September 2012 and in substitution decides that the applicant’s carotid artery disease, chronic obstructive pulmonary disease and cerebrovascular accident are war-caused. The application is remitted to the respondent for assessment.

..............................[sgd]...................................
Senior Member
VETERANS' AFFAIRS – applicant served with the Royal Australian Navy – three periods of operational service – increase in smoking prior to operational service – whether attributable to fear of entering a war zone or the disappointment of not being permitted to pursue preferred career path – whether carotid artery disease, chronic obstructive pulmonary disease and cerebrovascular accident war-caused – decision set aside – assessment remitted.
LEGISLATION
Veterans' Entitlements Act 1986
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82

Forrester v Repatriation Commission [2013] FCA 898

SECONDARY MATERIALS
Statement of Principles

Instrument N° 37 of 2014 concerning Chronic Obstructive Pulmonary Disease
Instrument N° 37 of 2012 concerning Carotid Artery Disease

Instrument N° 51 of 2006 concerning Cerebrovascular Accident

REASONS FOR DECISION
John Handley, Senior Member

The Veterans’ Review Board (the VRB) affirmed, on review, a decision of the respondent to refuse a claim by Mr Hart, the applicant for acceptance of the conditions of carotid artery disease, chronic obstructive pulmonary disease (COPD) and cerebrovascular accident (CVA) (the illnesses) as war-caused. The respondent concedes the applicant suffers those illnesses and also concedes that the CVA is ischaemic in origin.
The applicant contends that the illnesses are attributable to an increase in his smoking habit, which arose out of his engagement in operational service. He also contends that a reasonable hypothesis exists between that service and the illnesses.
The VRB found that the applicant’s smoking habit preceded his operational service. In this review, the respondent contends that the applicant was an established smoker prior to his operational service. He smoking habit did not arise out of and was not attributable to service (Respondent’s Statement of Facts and Contentions at [21]).
Service history-overview
The applicant served with the Royal Australian Navy (RAN) from 7 January 1970 to 11 November 1972. He was permitted an extended absence after 11 November 1972 and when he failed to return, he was officially discharged on 17 October 1980 (Exhibit R3). The applicant was initially engaged in recruit training at HMAS Leeuwin from 7 January 1970 to 31 December 1970. He then served on-board HMAS Sydney until 10 June 1971 and on-board HMAS Yarra between 11 October 1971 and 22 April 1972.
He was engaged in operational service, in 1971, between 15 February and 4 March, 26 March and 8 April and 13 May and 1 June.
Each period of operational service involved a tour, on-board Sydney, to Vietnam. During each of those periods the applicant was 16 years of age and engaged as an ordinary seaman.
When he…

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: [2014] AATA 564
Decision Date

CaseChat Overview and Summary

In the case of Gordon Keith Hart and Repatriation Commission, the primary focus was on whether the applicant's increased smoking habit, which began during his operational service, was linked to his subsequent illnesses. The applicant argued that his anxiety and boredom during his service caused him to smoke more, leading to his illnesses. The Tribunal was tasked with determining whether these illnesses were war-caused, applying the four-stage Deledio analysis as set out by the Federal Court. The central issue was whether the applicant's hypothesis of increased smoking due to operational service circumstances was reasonable and could be accepted beyond reasonable doubt.

The Tribunal found that the applicant had satisfied the first two Deledio stages by presenting a hypothesis that connected his service circumstances with his illnesses. The third stage involved assessing the reasonableness of the applicant's hypothesis. The Tribunal concluded that the hypothesis was reasonable as it was supported by the applicable Standard of Proofs (SoPs) and was consistent with medical-scientific evidence. The applicant's smoking increased from 20 to 35 cigarettes per day, a change that occurred prior to the clinical onset of his illnesses. This increase was directly linked to his anxiety and fear while approaching and being in a war zone, as well as the mundane tasks he performed during his service. These factors were deemed reasonable and consistent with the SoPs.

At the fourth stage of the Deledio analysis, the respondent argued that the applicant was already an established smoker before his operational service, and any increase in smoking was due to unrelated circumstances, such as his disappointment at not pursuing his preferred career path. However, the Tribunal found that the applicant's smoking increase was primarily due to his anxiety and fear during his service. The Tribunal was satisfied beyond reasonable doubt that the applicant's illnesses were war-caused, as his increased smoking was directly linked to his service circumstances.

The Tribunal's final order was that the application would succeed, as the Tribunal was not satisfied beyond reasonable doubt that the applicant's illnesses were not war-caused. This decision highlights the importance of connecting the applicant's service circumstances with the onset of his illnesses, and the reasonableness of the hypothesis presented.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Each factor within the above SoPs specifies a quantity of cigarettes and a period of smoking before the clinical onset of each illness. There is no dispute between the parties that the applicant satisfies each of the above factors, in respect of the increased quantity of cigarettes smoked by him, as he contends, having commenced during operational service and which has continued subsequently. CONCLUSION AND REASONSThe Deledio steps The Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 – 98, set out 4 stages of analysis that the Tribunal must sequentially follow in order to determine, ultimately, pursuant to s 120(1) of the Veterans’ Entitlements Act1986 (the Act), whether it is satisfied beyond reasonable doubt that the claim for incapacity is not war-caused. If the Tribunal is not so satisfied, the application will succeed. If the Tribunal is satisfied beyond reasonable doubt that the incapacity was not war-caused, the application will not succeed. Without making any findings of fact, I am satisfied that the material before me does point to a hypothesis connecting the circumstances of the applicant’s service with his illnesses. It was submitted on behalf of the applicant that the anxiety he experienced at the prospect of entering a war zone during his operational service, together with the boredom he experienced performing mundane tasks whilst on tour caused an increase in his smoking which ultimately resulted in the illnesses. There are also SoPs in force for each of the illnesses which the Repatriation Medical Authority has determined, on the basis of sound medical-scientific evidence (s 196B(2) of the Act). Accordingly, the first 2 stages of the Deledio analysis have been satisfied by the applicant. Having arrived at the third Deledio stage, I am required to form an opinion whether the hypothesis raised is reasonable. The hypothesis advanced by the applicant was of an increase in his smoking habit after he commenced, during and by reason of the circumstances of his operational service. There was no dispute between the parties that he was smoking 20 cigarettes per day up to 12 February 1971. From the following day, whilst the respondent argued that he smoked 35 cigarettes per day, there was no dispute that the applicant smoked the increased quantity prior to the clinical onset of the illnesses. It follows that the applicant satisfies the third stage of the Deledio process on the basis of the increased quantity. The hypothesis, as raised by the applicant is reasonable because it is upheld, it fits and is consistent with an applicable factor in each of the SoPs as determined by medical experts and published by the Repatriation Medical Authority (Forrester v Repatriation Commission [2013] FCA 898 at [32] and [72]). The issue before the Tribunal arises at the fourth stage of the Deledio process. It was submitted on behalf of the respondent that the applicant was an established smoker prior to his operational service. Further, any increase in smoking was a result of circumstances unrelated to operational service, namely, his disappointment at not being permitted to pursue his preferred career path.

Ratio Decidendi

Legal Principle Established

The entry made on 10 December 1970 is recorded as the Final Report Remarks. This entry was made about 3 weeks before the applicant finished recruit training and transferred to Sydney. It records the applicant as being immature, which he disputed and also refers to him as Ron which caused the applicant to query whether the psychologist was reporting on another person (Exhibit R2, page 2). Operational service The applicant said he joined Sydney at the Garden Island dockyard. He then knew that it was a troop carrier and that it had previously been engaged in voyages to and from Vietnam. However, he was not told about the duties that he would undertake during his deployment on that vessel. For the first few weeks, he was assigned to cleaning duties which the applicant regarded as being mundane and boring. He continued smoking cigarettes at about 20 per day. He acknowledged that he might have increased his smoking habit by 2 or 3 cigarettes per day because of his boredom, but did not increase to the level that he did, until later, during his operational service on-board Sydney. On about the 13th or 14th of February 1971, he recalled that stores were being loaded onto the ship and its boilers were activated. The following day, Sydney left port en route to Vietnam. The applicant said after the vessel commenced to sail, he became anxious and nervous. He knew the intended destination and said he didn’t know what to expect. He associated his anxiety with a fear of the unknown. He heard comments on-board that Vung Tau harbour was mined and as the vessel approached harbour, he became increasingly worried by the presence of escort ships. Experienced sailors on-board joked that he should look out for snipers. When Sydney anchored at Vung Tau he was aware of armed sentries on the upper deck. The applicant said he increased his smoking habit during that first voyage because of fear and anxiety as he approached a war zone. He said no one told him that he had no need to worry and he was left to his own imagination. The applicant made a total of 3 trips to Vietnam on-board Sydney. On those occasions he was smoking between 35 and 40 cigarettes per day. During one of the trips, he remembered sitting on a deck and realised he was smoking about 2 packs of cigarettes per day. The applicant thought he felt anxiety more than others because of his age – he was 16 years – but also by the presence of Army personnel who, by their appearance, appeared to him to have had a rough time, he didn’t like what (he) saw and he was surprised. He said many troops were smoking marijuana and older men on-board had recommended to him that he should stick with cigarettes. The applicant did not leave Sydney on each of the 3 occasions that he travelled to Vung Tau. Whilst in harbour, he said he was scared, the mine clearance divers were busy and he had thoughts of what would happen if they’ve missed one. He also observed armed sentries at 20-30 metre intervals on the upper deck. At night, he saw the flash of gunfire or mortar in the distance and could hear gunfire. On occasions, he heard helicopters overhead. He said the most influential factor in his increase of cigarette smoking and maintaining that increased level was his fear and anxiety of travelling to and being in a war zone, on 3 occasions.Increased smoking

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/0838
Re	Gordon Keith Hart
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr John Handley, Senior Member
Date	14 August 2014
Place	Melbourne