Greentree and Repatriation Commission (Veterans' entitlements)

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Greentree and Repatriation Commission (Veterans' entitlements) [2019] AATA 314 (1 March 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )  No: 2016/6958
VETERANS' APPEALS DIVISION  )

Re: Carole Greentree

Applicant

And: Repatriation Commission

Respondent

DIRECTION

TRIBUNAL:  Deputy President J Sosso

DATE OF CORRIGENDUM:            5 April 2019

PLACE:            Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

The date “19 November 2015” where it appears on page 1, and also at paragraph 162 on page 43 should read “27 December 2015”.

......................[Sgd].............................................

Deputy President

Division:VETERANS' APPEALS DIVISION 

File Numbers:         2016/6958

Re:Carole Greentree

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:1 March 2019

Place:Brisbane

The decision under review is set aside and substituted with a decision that the Applicant is entitled to the war-widow's pension with effect from 19 November 2015.

.........................[Sgd]...............................................

Deputy President J Sosso

CATCHWORDS

VETERANS’ AFFAIRS – claim for war widow’s pension – veteran deceased – Statement of Principles No 9 of 2013- Adenocarcinoma of the Kidney –inhaling respirable  asbestos fibres – whether inhalation of respirable asbestos fibres in an open environment for at least 3,000 hours before clinical onset – was contributed to in a material degree – hypothesis raised is reasonable – hypothesis fits the Statement of Principles – facts not disproved beyond reasonable doubt - decision under review set aside.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)
Acts Interpretation Act 1901 (Cth)

CASES

Adler v George [1964] 2 QB 7
Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570
Cameron v Repatriation Commission [2003] FCA 1323
Collins v Repatriation Commission (2009) 177 FCR 280
Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlopv Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
Elliott v Repatriation Commission [2002] FCA 26
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Gilkinson v Repatriation Commission (2011)   197 FCR 102
Grey v Pearson (1857) 10 ER 1216
Hardman v Repatriation Commission [2005] FCAFC 83
Hill v Repatriation Commission [2004] FCA 832
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 365
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Glanville (2010) 114 ALD 616
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Knight (2012) 202 FCR 451
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Stares (1996) 66 FCR 594
Riley v Repatriation Commission [2008] FCA 531
Starcevich v Repatriation Commission (1987) 76 ALR 449

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Details
Case
[2019] AATA 314
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by Ms Greentree, the widow of a deceased veteran, against a decision of the Repatriation Commission regarding her claim for a war widow's pension. The veteran's death was attributed to end-stage congestive cardiac failure and right renal cell cancer with lung metastases. Ms Greentree contended that the veteran's adenocarcinoma of the kidney was caused by his inhalation of respirable asbestos fibres during his service, specifically while maintaining vehicles in an enclosed workshop environment. The core of the dispute revolved around whether the veteran's exposure to asbestos fibres met the criteria outlined in Statement of Principles (SOP) No. 9 of 2013, which links adenocarcinoma of the kidney to inhaling respirable asbestos fibres for at least 3,000 hours. The Administrative Appeals Tribunal (AAT) had previously found that the veteran would have only infrequently been exposed to circumstances satisfying the relevant factors of the SOP. The matter was heard by Deputy President Sosso P.

The legal issues before the court were whether the veteran's exposure to respirable asbestos fibres during his service materially contributed to his adenocarcinoma of the kidney, and consequently, whether Ms Greentree was entitled to a war widow's pension. This required the court to determine if the hypothesis that the veteran's condition was caused by asbestos exposure was reasonable and if the facts necessary to support this hypothesis had been disproved beyond reasonable doubt, or if facts inconsistent with the hypothesis had been proven beyond reasonable doubt. The court also had to consider the antecedent inquiries required before applying the methodology for determining claims under sections 120 and 120A of the relevant Act, as explained in *Collins v Repatriation Commission*. These inquiries include establishing the claimant's status, whether the veteran suffered an injury or disease or died, and the "kind of death" of the veteran, all to be determined on the balance of probabilities or to the reasonable satisfaction of the decision-maker.

The court's reasoning focused on the evidence presented, particularly the statement of Mr Ian Angove, a former colleague who served with the veteran in South Vietnam. Mr Angove’s evidence detailed the practice of using compressed air hoses to clean brake dust and dirt, which contained asbestos fibres, in enclosed workshop environments. This practice, along with sweeping floors, dispersed asbestos fibres into the air, which were then inhaled by mechanics. The court noted that the Tribunal had not adequately considered this evidence when concluding that the veteran would have only infrequently been exposed to the relevant conditions. The court applied the principles from *Collins* and *Hancock*, emphasizing that the Tribunal must make an independent conclusion on the "kind of death" based on the weight of medical evidence, not solely on the terminology used in the death certificate. The court found that the hypothesis raised by Ms Greentree was reasonable and that the facts necessary to support it had not been disproved beyond reasonable doubt, nor had facts inconsistent with it been proven beyond reasonable doubt.

Consequently, the decision under review was set aside and substituted with a decision that Ms Greentree was entitled to the war widow's pension, with effect from 19 November 2015.

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

The Board made the following findings – Exhibit 1 T15 pp. 62 – 63:“29. Ms Dalton told the Board that the veteran was exposed to asbestos fibres from break and clutch linings while he was involved in maintaining and repairing vehicles, specifically tanks. She nominated his service in Bandiana as the period when he was likely to have inhaled respirable asbestos fibres as he was working in an enclosed space of a workshop. This exposure would have continued during his operational service in Vietnam where he was also involved with tank maintenance and repairs…35. Relevantly factors 6(c) and 6(d) of the SOP require the veteran to have inhaled the respirable asbestos fibres at the time the material containing those fibres (the brake and clutch pads or linings) were being ‘applied, removed, dislodged, cut or drilled’. The Board was of the opinion this requirement would be met at the time the brake or clutch components were being removed or re-fitted, or being machined. To inhale these fibres the Board was of the view the veteran would have been required to be carrying out the work, supervising a mechanic, or in close proximity to the work being undertaken.36. As discussed above, Mr Greentree was a Warrant Officer Artificer throughout his service under the Act and the Board is of the opinion he would have only infrequently been exposed to circumstances which might satisfy the requirements of the relevant factors.” EVIDENCE OF IAN ROBERT ANGOW Unlike the Board, the Tribunal had the benefit of receiving evidence from Mr Ian Angove. Mr Angove served in the Army from 1968 until 1995. In his first years of service he was a Motor Mechanic and was posted to the RAEME Corps during the 1968 – 1976 period. From 1976 until 1996 Mr Angow served as an AV. Importantly, Mr Angove served in South Vietnam with the veteran during 1970. At that time Mr Angove was a Corporal. Mr Angove provided two written statements, the first of which is dated 30 January 2018 – Exhibit 8. Relevant extracts from his Statement are set out below:“3. …Peter Greentree was an Vehicle Artificer (Vehicle Mechanic) working on Armoured Vehicles such as Centurion Tanks and Heavy (ARV) and Light Armoured (M113 Fitters Track) Recovery Vehicles with crane and winch capabilities and also medium to light vehicles (International and Landrover). These types of vehicles were used in armoured recovery and each time the Centurion tanks went bush on an operation, the Armoured Recovery vehicles would accompany them. Peter Greentree was my boss for a time until I went home…5. In South Vietnam when tanks went bush, a Corporal vehicle mechanic; two (2) Craftsmen and a Craftsmen or Corporal Electrician went out on Army recovery Vehicles to repair and service tanks and any other vehicles. If the tanks broke down when working with the other supporting arm (I.E. Infantry), these Detachments would repair them in situ or at Fire Support Bases (FSB) or at our Base Camp (Nui Dat). These Light Aid Detachments were on patrol for anything up to two (2) or three (3) month duration in the field, with the Infantry or other supporting arms. There were always about three tanks on these patrols and the tanks never went out without an ARV or M113 Fitters Track with them. Our primary duty was to repair and maintain the tanks mechanically and if vehicles required any specialized part/parts these would be sent in as re-supply of stores on board helicopters at a designated point and time, known only by Senior Personnel at the main Headquarters Unit…7. When we were working in a workshop environment, other than in the field, our work routine consisted of commencing work at about 0800 hrs. We would be delegated by a Superior Officer, Warrant Officer or Senior Non Commissioned Officer and we would work on a ‘bench shop type of a work environment’. We would clean and replace worn parts of the armoured vehicles or other mechanised vehicles such as stripping down, replacing or repairing other vehicle components such as engines, clutches, transmissions etc. We replaced brake linings and clutch plates which contained asbestos particles. When replacing or repairing brake linings or clutches, we would blow the brake dust and dirt with an air hose type device, which would disperse dust particles all over us. Up until the early to mid 80’s this was the preferred method of brake dust removal…9. As vehicle mechanics we used Carcinogenic cleaners, such as white spirit, kerosene or petrol which came in 40 gallon drums and had to be siphoned into smaller containers for use. This was all done without protective clothing, not even gloves or masks to lessen the emanating fumes from the white spirit, kerosene or petrol.10. In Army workshops (enclosed area), when we were required to replace and clean brake linings, we used an air hose to blow out (clean) the brake components of these brake linings, which contained asbestos fibres and these asbestos dust fibres covered everything including us. It was also in the air and we just dusted ourselves off and continued working. There were no face masks or protective clothing issued at all. We were also required to sweep the floors of the workshop as part of general cleaning maintenance. The process of sweeping with brooms caused the asbestos fibres to be dispersed back into the air and consequently when we finished these maintenance tasks, we were covered in asbestosis which was in our hair and on our face, as well as breathing in these particles into our repertory [sic] breathing system.”

Decision

Reasons for decision

Accordingly, there are no grounds for a finding that either one or more of the facts necessary to support the veteran’s hypothesis have been disproved beyond reasonable doubt or that the truth of any material fact which is inconsistent with the hypothesis has been proved beyond a reasonable doubt.DECISION The decision under review is set aside and substituted with a decision that the Applicant is entitled to the war-widow’s pension with effect from 19 November 2015.

Ratio Decidendi

Legal Principle Established

There are antecedent inquiries required of the Tribunal before applying the Deledio methodology which were explained by the Full Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280 (Collins) as follows (284 – 285):“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:1. whether the claimant was a veteran, or a dependant of a deceased veteran;2. whether the veteran has suffered an injury or disease or has died..; and3. the cause of death or the ‘kind of death’ of the veteran..these matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”CONSIDERATIONPreliminary Issues As explained in Collins it is necessary to deal with certain antecedent threshold issues. It is not contested that the Applicant is the widow of the veteran who rendered operational service whilst serving in South Vietnam between 1970-1971. It is also not contested that the veteran died on 26 December 2015 and that his Death Certificate lists his cause of death as end stage congestive cardiac failure and right renal cell cancer with lung metastases – Exhibit 1 T5 p. 30. However, the cause of death for the purposes of ss 120 and 120A requires an inquiry into the ‘kind of death’ suffered by the veteran – s 120A(4). The importance of resolving this question was explained by Selway J in Hancock as follows (at [11]):“The AAT, faced with the evidence of Dr Betty should have proceeded as follows:(a)First, the Tribunal was required to determine, on the balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.(b)Next, the Tribunal was required to determine on the balance of probabilities what ‘kind of death’ Mr Hancock had suffered. This involved the identification, on the balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.(c)If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.(d)If only a determination under s 180A(2) is applicable, then the application must fail.(e)If no SoP and no determination is applicable at all or to a particular ‘kind of death’, then the methodology in Byrnes is applicable in relation to that.” It is also the case that there may be more than one medical cause for a veteran’s incapacity or death – Collins at 289 – 290 per Mansfield and Stone JJ. Further, in reaching a conclusion on the ‘kind of death’ the Tribunal is not bound by terminology used in the Death Certificate. The Tribunal must consider the medical evidence and reach an independent conclusion based on the weight of evidence presented in the context of the specific inquiry mandated by the Act – see, generally, Willman and Repatriation Commission [2007] AATA 1480 at [23].