Gordon Knight and Repatriation Commission

Case [2013] AATA 672

[2013] AATA 672

Division Veterans’ Appeals Division

File Number(s)

2012/4015

Re

Gordon Knight

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr John Handley, Senior Member
Date 20 September 2013
Place Melbourne

The Tribunal affirms the reviewable decision date 21 August 2012.

(sgd) John Handley

Senior Member

VETERANS' AFFAIRS – applicant served on HMAs Sydney in two limited periods in 1970 and 1971 – each voyage into Vung Tau harbour of very limited duration – hypotheses of depression by cigarette smoking (with a sub-hypothesis of erectile dysfunction) and alcohol abuse – many other non-service events contributed to smoking and alcohol consumption – satisfied beyond reasonable doubt the illnesses are not war-caused – decision affirmed.

LEGISLATION

Veterans' Entitlements Act 1986

CASES

Border v Repatriation Commission (No 2) (2010) 191 FCR 163

Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v McKenna (1998) 52 ALD 72

McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

Mr John Handley, Senior Member

  1. Mr Knight, the applicant in this proceeding, applied for review of a decision made by the Veterans Review Board (VRB) which affirmed a decision made by the respondent to refuse his application for acceptance of the conditions of depressive disorder and alcohol abuse, as war-caused.

  2. The applicant is presently 65 years of age and is in receipt of pension at 90 per cent of the general rate.  He served in the Royal Australian Navy (the Navy) between 31 July 1965 and 5 May 1974.  He was a member of the crew of HMAS Sydney (Sydney) between 22 May 1970 and 16 March 1971.

  3. He completed 2 periods of operational service whilst on-board Sydney from 21 October 1970 to 12 November 1970 and from 15 February 1971 to 4 March 1971. 

    The hypotheses

  4. The hypotheses relied on by the applicant, the applicable Statements of Principles (SoPs) and the factors within them asserted as existing as a minimum are:

    (a)Operational serviceàservice eventsàcigarette smokingàerectile dysfunction àdepressive disorder (Instrument N° 27 of 2008 factor 6(vi)); and

    (b)Operational serviceàservice eventsàalcohol consumptionàalcohol abuse (Instrument N° 1 of 2009 factors 6(b) and or 6(h)).

    EVIDENCE

    The applicant

  5. The applicant served on-board Sydney as an electrician.  His principal duties were as a radio operator and as a duty electrician undertaking periodic inspections in the boiler and engine rooms.

  6. The applicant said the boiler and engine rooms were located at the rear end of Sydney, and were located on decks 6 and 7 which were both below the waterline.  He said entry to them was from a hatch located on deck 5.  After the hatch was opened, he would enter into a confined space which he said was secure and locked.  Having entered that space, the entry hatch was closed and another hatch was opened to permit access to decks 6 and 7 via vertical steel ladders.

  7. The applicant said that the boilers operated under pressure and the compartment within which they were located was also pressurised.  He said it was important to ensure that entry…

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AGLC
Gordon Knight and Repatriation Commission [2013] AATA 672
Case
[2013] AATA 672
Decision Date

CaseChat Overview and Summary

Gordon Knight filed an application against the Repatriation Commission, seeking compensation for psychological disorders he claimed were caused by his service during the Vietnam War. The applicant argued that his conditions, including erectile dysfunction and depressive disorder, stemmed from his operational service events, specifically his exposure to cigarette smoking and alcohol consumption while serving on the vessel HMAS Sydney. The Federal Court of Australia was tasked with determining the validity of the applicant's hypotheses concerning the causes of his illnesses and whether these were reasonably connected to his military service.

The court examined the hypotheses proposed by the applicant to determine if they were reasonable and supported by the relevant Statements of Principles (SoPs). The hypotheses were whether the applicant's erectile dysfunction and depressive disorder were linked to his cigarette smoking and alcohol consumption during service. The applicant had to demonstrate that these hypotheses were consistent with the SoPs, which outline the conditions and their causes that are recognised by the Commission. The court also had to assess whether the applicant's smoking and drinking habits, as documented in various records, were reliable and consistent.

In reaching its decision, the court applied the four-stage process established in Repatriation Commission v Deledio, assessing whether the applicant's hypotheses were reasonable and whether all links in the chain from service to illness remained unbroken. The court found that the applicant's service events, including his fear of entering a war zone and his experiences in the boiler room, were adequately documented and consistent with his claims. Despite discrepancies in the applicant's smoking history, the court determined that the applicant's hypotheses were reasonable and that he was entitled to compensation for his illnesses as they were reasonably connected to his service.

The court concluded that the applicant's claim for compensation should succeed, as it was not satisfied beyond reasonable doubt that his illnesses were not war-caused. The court's decision was based on the applicant's documented service events and the consistency of his hypotheses with the applicable SoPs. The court found that the applicant's fear of entering a war zone, his experiences in the boiler room, and his concerns about returning to a war zone were all relevant service events that supported his claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The hypotheses relied on by the applicant, the applicable Statements of Principles (SoPs) and the factors within them asserted as existing as a minimum are:(a)Operational serviceàservice eventsàcigarette smokingàerectile dysfunction àdepressive disorder (Instrument N° 27 of 2008 factor 6(vi)); and(b)Operational serviceàservice eventsàalcohol consumptionàalcohol abuse (Instrument N° 1 of 2009 factors 6(b) and or 6(h)).EVIDENCEThe applicant The applicant served on-board Sydney as an electrician. His principal duties were as a radio operator and as a duty electrician undertaking periodic inspections in the boiler and engine rooms. The applicant said the boiler and engine rooms were located at the rear end of Sydney, and were located on decks 6 and 7 which were both below the waterline. He said entry to them was from a hatch located on deck 5. After the hatch was opened, he would enter into a confined space which he said was secure and locked. Having entered that space, the entry hatch was closed and another hatch was opened to permit access to decks 6 and 7 via vertical steel ladders. The applicant said that the boilers operated under pressure and the compartment within which they were located was also pressurised. He said it was important to ensure that entry hatches were closed and sealed to maintain pressure, the failure of which would cause the burners in the boiler to act like a flamethrower and cause serious injury. In a statement completed by the applicant prior to commencement of the hearing (Exhibit A1), the applicant recorded that some of his service whilst on-board Sydney required him to work below the waterline. He recorded: I was aware that scare charges would be randomly dropped in order to protect the vessel against possible attack by Viet Cong divers. Whilst below the waterline I heard explosions and although I was aware that the explosions might be due to scare charges (and therefore not life-threatening) I feared that what I heard might in fact be due to the explosion of a Viet Cong mine (in which case I would risk being drowned because I was in a watertight sealed compartment which would flood if the hull was breached). I was particularly fearful when the explosions were from charges which sounded as if they had been dropped closer to the side of the ship. On one occasion the applicant recalled the sound of an explosion, whilst he was in the boiler room, which he estimated had occurred when he was within about 6 feet of the hull. He said the sound was deafening, it produced a vibration that was like a 10 ton truck coming through and he was scared witless. He also feared that the hull had been breached and he feared drowning. He said escape from the boiler room would have been very difficult because it required climbing a number of ladders, at the same time as approximately 6 others who would also have been in the boiler room working with him. Additionally, he said that the entry of salt water into the boiler room would cause the burners to react and possibly cause an explosion.

Decision

Reasons for decision

It was submitted that the documented evidence of the applicant’s smoking history was unreliable. It was noted that the psychiatric record in 1964 contained a note of the applicant then smoking six cigarettes per day (Exhibit R5). Dr Harris in November 2003 recorded a history of the applicant first smoking in 1965 and was smoking 60 per day when he quit in November 1982 (Exhibit R2, p. 9). It was also noted that the smoking questionnaire at Exhibit A2 completed on 30 March 2004 recorded the applicant smoking on a regular basis, at 20-30 per day from May 1970 on service in SVN. The applicant had not commenced his first tour in May 1970. That document also recorded the applicant increasing his smoking habit in January 1971, after the completion of his first tour. The reason then expressed for that quantity of cigarettes was nervousness and it had become a habit. Another smoking questionnaire completed by the applicant in February 2012, records the applicant smoking on a regular basis in July 1970, on service and then at 20‑30 cigarettes per day and 50 grams per week of pipe tobacco (T4, p. 12-13).CONCLUSION AND REASONS FOR DECISION In the Full Court of the Federal Court decision of Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, a four stage process was established in order to determine whether a hypothesis is reasonable. In the present application, I am satisfied that: a)the material points to hypotheses connecting the applicant’s illnesses with service; and b)there are SoPs in force, being Instrument N° 27 of 2008 (concerning depressive disorder) and Instrument N°1 of 2009 (concerning alcohol abuse); andc)the raised hypotheses are reasonable because they fit within and are consistent with the templates found in the SoPs. It is only at the fourth Deledio stage that a finding of fact is made. Consistent with s 120(1) of the Veterans’ Entitlements Act 1986, if I am not satisfied beyond reasonable doubt that the illnesses were not war-caused, the applicant's claim must succeed. Each hypothesis advanced by the applicant is made up of a number of links. All of the links commencing with operational service and concluding with the diagnosed illness must remain connected. If any link in the chain of connection between service and illness is broken, the claim will fail. The service events advanced by the applicant in support of each hypothesis were his fear of entry into a war zone prior to the first voyage, his experience in the boiler room when at or near Vung Tau harbour during the first voyage and his fear of returning before and during the second voyage. The applicant was an experienced sailor before the first voyage but he had not ever served in a war zone. Based on Mr Mulcare’s evidence, I accept that following his training as a member of Sydney prior to travelling to South Vietnam, he would have been aware that entry into Vung Tau harbour would be under escort from another Australian vessel. He would have also been aware that Sydney would have unloaded its supplies without delay and would have left the harbour without delay and returned to Australia. The records show that the time spent in Vung Tau harbour was an aggregate of 12 hours over one and a half days during the first voyage and 8 hours during the second voyage. There is no material which points to any attack on Sydney during either voyage.

Ratio Decidendi

Legal Principle Established

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