Greentree and Repatriation Commission (Veterans' entitlements)
[2019] AATA 314
•1 March 2019
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”.
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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.
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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
Willman and Repatriation Commission [2007] AATA 1480
Woodward v Repatriation Commission [2003] FCAFC 160REASONS FOR DECISION
Deputy President J Sosso
1 March 2019
INTRODUCITON
Mrs Carole Greentree (the Applicant) seeks a review of a decision of the Veterans’ Review Board (the Board) that affirmed a decision of the Repatriation Commission (the Respondent) that the death of her husband, Mr Peter Greentree (the veteran), was not war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the Act) and that, consequently, a war-widow’s pension was not payable.
The Applicant relies upon Statement of Principles (SoP) No 9 of 2013 – Adenocarcinoma of the Kidney. Clause 6(d) prescribes the following Factor which is advanced:
“inhaling respirable asbestos fibres in an open environment at the time material containing respirable asbestos fibres was being applied, removed, dislodged, cut or drilled:
(i)for a cumulative period of at least 3 000 hours before the clinical onset of adenocarcinoma of the kidney; and
(ii)the first inhalation of respirable asbestos fibres commenced at least five years before the clinical onset of adenocarcinoma of the kidney…”
The veteran was born in 1935 and passed away on 26 December 2015. The veteran’s Death Certificate states that his cause of death was as follows – Exhibit 1 T5 p. 30:
“1. End stage congestive cardiac failure 2. Right renal cell cancer with lung metastases”.
The veteran served in the Australian Army from 1 December 1960 until 5 December 1980. He rendered operational service in South Vietnam from 13 August 1970 until 30 September 1971. The veteran’s service from 7 December 1972 until his discharge from the Army is ‘defence service’ under the Act – Exhibit 1 T3 pp. 8 – 14.
During most of the veteran’s early military service he was a Vehicle Mechanic. After enlisting and receiving recruit training at Kapooka, the veteran was posted, in March 1961, for training with the Royal Australian Electrical and Mechanical Engineers (RAEME) Corps. Following that training the veteran was posted, in June 1961, to the Bandiana Area Workshops, Victoria. Shortly thereafter (August 1961) the veteran was posted to 1 Med Workshops, Victoria where he served until August 1967. During this time he was promoted first (in December 1964) to the rank of Corporal and then to Sergeant (in April 1967) – Exhibit 1 T3 pp. 8 - 10
The veteran was posted to Puckapunyal Area Workshops in August 1967 and promoted, in January 1969, to Staff Sergeant. In September 1969 the veteran was posted to 1 Armoured Regiment LAD (Light Aid Detachment) and in the next month promoted to Warrant Officer Class 2 – Exhibit 1 T3 p. 11.
The veteran was posted to South Vietnam from 13 August 1970 until 30 September 1971 – Exhibit 1 T3 p. 12.
On his return to Australia in 1971, the veteran was posted to the Northern Command Workshops, Brisbane – Exhibit 1 T3 p. 12.
On 5 January 1976, the veteran was promoted to Warrant Officer Class 1 and posted to 2 Base Workshop Battalion in Sydney – Exhibit 1 T3 p. 13.
In addition to his service rank, the veteran also had designated trade rankings. During his first seven years of service the veteran was designated as a Vehicle Mechanic, but on 16 July 1968 he was elevated to the trade ranking of Artificer, Vehicle (AV) – Exhibit 1 T3 p. 11.
The Tribunal was provided with an “Employment Specification” document for an AV – Exhibit 6. This position is described as:
“A soldier who as a sub-professional automotive engineer is responsible for production planning, resource management, technical staff work and the conduct of technical training.”
The main job functions were described as follows:
“a. plan production at workshop, platoon or technical support sub-unit level;
b. conduct inspections for work planning, EIS and equipment classification;
c. conduct technical investigations;
d. prepare technical documents such as EMEI;
e. interpret repair and inspection criteria;
f. advise subordinate tradesmen and users on technical matters relative to his trade;
g. supervise the preparation of statistical data;
h. maintain and determine standards and methods of repair;
i. supervise subordinate tradesmen; and
j. supervise trade repair activities.”
The usual working conditions of a AV were described as:
“The artificer, vehicle usually works in an office or workshop environment; the conditions varying from air-conditioned rooms to operating from vehicles or under tentage in the field. The artificer, vehicle may be required to work in any one of three functional areas, ie technical staff, workshop production planning or directly supervising production in the workshop. Except in periods of intensive field operations, the hours of work are normal with little requirement to work shifts.”
The Employment Specification also dealt with work hazards. In particular the non-combat hazards were described as follows:
“The artificer, vehicle is susceptible to death or injury when operating possible defective equipment on inspections. The artificer, vehicle is also exposed to similar non-combat hazards as the Mechanic, Vehicle ECN 229, that is, minor injuries, skin disorders and respiratory diseases and death or injury due to a range of industrial accidents.”
On 19 February 2016, the Applicant lodged a claim for a war widow’s pension – Exhibit 1 T9 pp. 38 – 46. In her claim, the Applicant stated that she was the legal spouse of the veteran and the date of the marriage was 2 November 1974 – Exhibit 1 T9 p. 39.
The Applicant provided a Statement which is dated 27 June 2017 - Exhibit 2. Relevant extracts are set out below:
“2. My husband Peter, when he was in South Vietnam told me that his work involved him supervising junior ranks on motor vehicles, tanks and that he was exposed to petro carbon solutions which was required for the cleaning and servicing of parts associated with his work. He also told me that he was exposed to ‘Agent Orange’, which was used to decontaminate vegetation as well as those areas targeted to eradicate enemy forces.
3. After Peter left the Army, he obtained work as a Security Guard, which was his employment, prior to his demise…
6. Peter was a ‘do it yourself’ person; he always helped others and when he was a Warrant Officer in the Army, he would assist apprentices with their respective jobs and did not care about ‘the pecking order in the Army,’ his philosophy was ‘if there was work to be done, then he would get in and help’. He always had a good rapport with his troops.
7. Peter really did not discuss his Vietnam service, the only thing that I can remember him commenting on was when he was flying in a helicopter and was shot at but landed safely without incident or injuries.”
On 11 March 2016 Dr Mei Ling Doery, Contracted Medical Advisor, wrote to Mr Jeremy Schwellinger, Delegate of the Respondent, who was considering the Applicant’s claim and provided the following advice – Exhibit 1 T10 p. 47:
“With regard to the cause of death.
The primary cause of death was Renal cell carcinoma;
SoP Malignant Neoplasm of Kidney ICD 9 189; Onset 2010
·Congestive Hear Failure SoP condition: Ischaemic Heart Disease ICD 9 410; Onset 1995, was a material contribution to the death,
·Alcohol abuse, SoP condition; Alcohol abuse disorder ICD 9 303 Onset 1970, was a material contribution to death,
Based on the available information, there are no other conditions which materially contributed to the death of this veteran.
Comment
·It is noted that the member suffered alcohol abuse disorder which is reasonably attributed to military service.
·Alongside this the member service record is consistent with probably exposure to a host of toxic chemicals including agent-orange which is likely to have contributed to his threshold for developing cancer.
Causation
·On balance of probabilities, the member’s cause of death is therefore attributable to service.”
Despite the favourable report of Dr Doery, Mr Schwellinger determined on 22 March 2016 that the death of the veteran was not related to service and that a war widow’s pension was not payable to the Applicant. In reaching this conclusion, the following reasons were given – Exhibit 1 T11 p. 52:
“Mrs Greentree has contended that Mr. Greentree’s exposure to asbestos and carcinogenic brake fluid and other dangerous chemicals such as Agent Orange while working as a tank mechanic during service contributed to the condition that led to Mr. Greentree’s death.
Malignant Neoplasm of the Kidney
In considering the relationship between the veteran’s death from Malignant Neoplasm of Kidney and his service I have used Statement of Principles, Instrument number 9 of 2013, which sets out the factors known to contribute to this condition.
Obesity
In this case there is no history of obesity.
Other factors
The evidence before me indicates that the other factors contained in the Statement of Principles do not apply in Mr Greentree’s case.
The other factors involve:
Cigarette smoking; cumulative inhalation of respirable asbestos fibres; being overweight; inhaling respirable asbestos fibres in an enclosed space; no appropriate clinical management for adenocarcinoma of the kidney; end stage renal disease; hypertension; being exposed to arsenic; inhaling cadmium fumes; inhaling, ingesting or having cutaneous contact with trichloroethylene; ionising radiation:
Having considered all of the evidence I am unable to relate Mr Greentree’s Malignant Neoplasm of Kidney to his service. I am therefore satisfied beyond reasonable doubt that his death is not service related.”
The Applicant then applied for a review of this decision by the Board. This proved On 30 November 2016 the Board affirmed the decision of the Respondent’s delegate – Exhibit 1 T15 pp. 57 – 64.
In reaching this conclusion, the Board first outlined the Applicant’s submissions – Exhibit 1 T15 p. 59:
“13. Ms Dalton advised the Board that the contention raised on behalf of Mrs Greentree was that her husband had died from adenocarcinoma of the kidney which was caused by exposure to asbestos during his service…
14. Ms Dalton contended the veteran inhaled respirable asbestos fibres in enclosed spaces at the time he was at Bandiana working on tanks and other vehicles in the workshop, and he also inhaled respirable asbestos fibres during his time in Vietnam working on the tanks.”
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.”
Mr Angove also appeared and gave evidence at the Hearing. He was asked a number of questions about his experience when serving with the veteran, and, in particular, how the veteran interacted with the men he was supervising. The following exchange occurred – Transcript (Tr.) 08/11/2018 pp. 21 – 22:
“How would you describe how he performed that role as a supervisor?---He was, it was a change because he was a quiet sort of a person, very approachable and when he spoke to you it was in a nice soft voice. Some other people, sort of typical army, issue you an order would (indistinct) like an army order. But Peter would say, can you do this, can you do that, in a quiet voce.
I’m particularly interested in your recollection of the way he went about his job, in respect of whether he got involved with any of the mechanical work directly?---He was a hands-on ASM or of supervisor. If you had a problem, you went to him and he sorted it out. In one instance, I was having a problem on a particular vehicle and he actually got under the tank itself and gave us a hand with that particular problem.
Was that unusual in your experience with individuals in his level of role?---No. If during the course of the day if you’ve seen him come out of the office once that was typical. Peter Greentree was out in the workshop area, supervising, supervising the other mechanics and staff…
Peter, as I said, he was a hands-on guy, he was there, he was looking over, basically looking over your shoulder, but not in a sort of pushy way, he’d be looking to see what you were doing and if you’re having any problems with it.”
Mr Angove was asked further questions about the workplace environment and other issues, and these are dealt with below.
EVIDENCE OF DR ALBERT PALAZZO
The Tribunal had the benefit of a report of Dr Palazzo, Consultant Historian, on the Vietnam War service of the veteran. The report is dated 2 July 2017 and is seven pages in length with extensive annexures.
Dr Palazzo’s report deals with, in a general sense, the veteran’s service in South Vietnam. It is focused on the operations of the LAD which was attached to 1 Armoured Regiment with the Australian Task Force at Nui Dat in Phuoc Tuy Province. During cross-examination, Ms J MacDonald for the Respondent, asked the following question – Tr. 08/11/2018 p. 19:
“Sure. So you’re not in a position to help the tribunal with any assessment of the amount of time Mr Greentree may have spent doing specific tasks in specific places during his deployment?---No, as I report outlines the best I can do is that we can confirm that Greentree was in Vietnam for approximately a year, and during that entire year he was a member of the Armed Regiments Light Aid Detachment, and that Light Aid Detachment which was a relatively small organisation, I believe I say it just had 35 soldier in it, so it would not be unreasonable, I believe, for him to have participated in some of the activities that I have outlined there.”
Dr Palazzo made the following observations in his report – Exhibit 7 pp. 2 – 3:
“1 Armoured Regiment LAD was responsible for the repair and maintenance of the Australian Task Force’s Centurion Tanks. Greentree’s LAD is best considered a sub-unit of a tank squadron. Each squadron would be allocated a LAD to take care of its tanks.
LADs are small units. Greentree’s LAD consisted of approximately 35 soldiers. Its work vehicles consisted of two Centurion Armoured Recovery Vehicles (ARV) and the M113 Armoured Personnel Carriers which had been converted to Fitter Vehicles. The LAD filled two roles for the tank squadron. First, it was capable of low-level maintenance of the squadron’s tanks at Nui Dat. If deeper level maintenance was necessary it was undertaken by a Workshop, which was a larger RAEME unit. A LAD’s second role was to accompany the tanks whenever they left the base at Nui Dat. Every tank movement was accompanied by at least one RAEME staffed ARV and Fitter Vehicle in order to conduct repairs or tank recovery in the field…
LAD support to the tanks was required on all operations. LAD vehicles did not remain at Nui Dat awaiting a call from the tanks for assistance but accompanied them whenever they left Nui Dat. This was so that the LAD could commence recovery or repair of an armoured vehicle immediately, even if this meant working while under fire or in the vicinity of the enemy…”
Dr Palazzo gives a lengthy account of the major operations in which 1 Armoured Regiment participated, and which, accordingly, involved LAD support. It is sufficient for present purposes to note, that the LAD was involved in a number of exercises in the period August 1970 until August 1971 which resulted in numerous Australian and Viet Cong casualties.
THE HEARING
A hearing was convened in Brisbane on 8 November 2018. The Applicant was represented by Mr A. Harding of Counsel and the Respondent by Ms J. MacDonald of Counsel. The Applicant called Dr Palazzo and Mr Angove to give evidence. No witnesses were called by the Respondent. Written closing submissions were lodged by the Applicant on 17 December 2018 and by the Respondent on 18 January 2019.
ISSUES
The only issue in contention is whether the veteran’s death was war-caused. In particular, whether the evidence adduced and led by the Applicant raises a reasonable hypothesis that the veteran’s death was war-caused by reference to SoP 9 of 2013, Adenocarcinoma of the Kidney, with reliance on Factor 6(d). Mr Harding informed the Tribunal at the Hearing that this was the only ground now being relied upon by the Applicant – Transcript (Tr.) 08/11/2018 pp. 5 – 6.
LEGAL OVERVIEW
Section 13 of the Act provides, inter alia, that when veteran’s death is war-caused, the Commonwealth is liable to pay a pension to the dependants of the veteran. “Dependant” is defined by s 11(1)(c) to include the widow of a veteran.
Subparagraph 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have rendered eligible war service while the person was rendering operational service.
The death of a veteran is taken to be “war-caused” if, inter alia:
“(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or war-caused disease, as the case may be…” – s 8(1)(f).
Importantly, the Act contains provisions facilitating proof of the relationship between death and war-service.
Subsection 120(1) of the Act provides that where a claim under Part II for a pension in respect of the death of a veteran relates to operational service by the veteran, the Respondent shall determine that the death was war-caused, unless it is satisfied beyond reasonable doubt that there is not sufficient ground for making that determination.
Subsection 120(3) provides that in applying subsection (1) in respect of the death of a veteran, the Respondent shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Respondent is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the service rendered by the veteran.
Subsection 120(3), however, must read in conjunction with s 120A. Subsection 120A(3) provides that for the purpose of s 120(3), an hypothesis connecting the death of a person to the circumstances of any service rendered by a person is reasonable only if there is in force a Statement of Principles (SoP) determined under s 196B(2) that upholds the hypothesis.
Section 196A establishes the Repatriation Medical Authority (the Authority). The main function of the Authority is to determine SoPs – s 196B(2).
If the Authority is of the view that based on available sound medical-scientific evidence that it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out:
·the factors that must exist; and
·which of those factors must be related to the service rendered by the veteran,
before it can be said that a reasonable hypothesis has been raised connecting the injury, disease or death of that kind with the circumstances of the service – s 196B(2).
A factor causing, in this case, a death, is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in s 196B(14).
In understanding the role and use of SoPs it is helpful to refer to the following observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:
“But it is necessary to repeat that the SoP has no function in relation to proof or disproof (under s 120(1)) of the particular facts of a veteran’ case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994 at 1808) the SoPs were intended to ‘provide the template within which the individual’s claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where a SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.”
The methodology to be adopted in reaching a decision mandated by ss 8, 13 and 120 as to whether a death is “war-caused” was explained on appeal by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) as follows (97 – 98):
“1. The Tribunal must consider all of 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 an SoP determined by the Authority under s 196B(2) or s 196B(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 an 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 s 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…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.”
The Deledio methodology is a helpful tool but is clearly not a substitute for complying with the requirements of the Act. To apply the Deledio methodology in a mechanistic manner and without proper regard to compliance with the Act would lead a decision-maker into error: Dunlopv Repatriation Commission [2003] FCAFC 201 at [33], Hardman v Repatriation Commission [2005] FCAFC 83 at [32].
It is important to highlight this caveat as the suggestion made by the Full Court in Deledio that if there is no SoP the application must fail, has been recognised as being incorrect – Woodward v Repatriation Commission [2003] FCAFC 160 at [55]. If there is no SoP then the question of causation is required to be determined under s 120(1) and (3) rather than s 120A – Repatriation Commission v Hancock [2003] FCA 711 at [10] (Hancock).
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..; and
3. 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…”
CONSIDERATION
Preliminary 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].
In applying the law as outlined above, the veteran’s ‘kind of death’ for the purposes of this matter is right renal cell cancer with lung metastases (adenocarcinoma of the kidney).
Having dealt with the antecedent inquiries, the issue before the Tribunal is whether the veteran’s death was “war-caused”.
The hypothesis
The hypothesis advanced by the Applicant (Applicant’s Outline of Submissions (AOS) paras 15 – 16) is that the veteran’s adenocarcinoma of the kidney was caused by the inhalation of respirable asbestos fibres in an open environment at the time material containing respirable fibres was being removed or dislodged for a cumulative period of at least 3,000 hours before the onset of the veteran’s adenocarcinoma of the kidney in circa 2010.
Deledio Methodology – First Step
The first step of the Deledio methodology is aimed at ensuring the proper application of s 120(3). At this initial stage the Tribunal does not engage in a fact-finding exercise.
The Tribunal is only required to be reasonably satisfied that the hypothesis raised has some support in the material, and that the material points to, and does not merely leave open, the hypothesis being relied upon – Forrester v Repatriation Commission [2013] FCA 898 at [14]. Moreover, as Mortimer J pointed out in Forrester (at [30]), whether that material points to or supports a hypothesis can be determined by inference or assumption.
It is not contested that the hypothesis relied upon by the Applicant finds some support in the evidence and is pointed to, and is not merely left open.
Second Step
It is also not contested that there is an SoP determined under s 196B, namely SoP 9 of 2013.
Third Step
Introduction
The third step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. This requires the Tribunal to ascertain if the hypothesis “fits” or is “consistent with” the “template” in SoP 9 of 2013.
When applying the Deledio methodology, the issue of “reasonableness” arises at both Steps 1 and 3. The Tribunal is required to assess reasonableness from both a factual and a medical/scientific perspective. Assistance is obtained from the following observations of Mortimer J in Forrester (at [32]):
“The reasonableness of a hypothesis is in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because an SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…”
It is not necessary for every element of an hypothesis to be supported, or pointed to, by the material before the Tribunal. Only the essential elements of the hypothesis must be addressed – Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352 at [59]/364 (Ellis).
However, it is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met. The material presented must raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran – Ellis at [63]/365.
In order for there to be a reasonable hypothesis, then, it must be consistent with the known facts and be not fanciful or unreal and must be more than just a possibility – see East v Repatriation Commission (1987) 16 FCR 517 at 532 – 533 and Bull v Repatriation Commission [2001] FCA 1832 at [18] – [21].
While not disputing that the Applicant’s claim satisfies Step 1, the Respondent contends that the Applicant’s claim fails at Step 3 –Exhibit 4 paras 85 – 90. Prior to the Hearing the Respondent made the following submissions as to why, in its opinion, the Applicant failed at Step 3 – Exhibit 4 para 86:
“The Respondent contends that the hypothesis raised by the Applicant in respect of either factor 6(c) or 6(d) is not reasonable because:
86.1.the meaning of inhaling the respirable asbestos fibres at the time they were ‘applied, removed, dislodged, cut or drilled’ as per the SoP means at such a time when the relevant parts of a vehicle, being brake or clutch components, were being removed, re-fitted or machined
86.2. the Veteran would have had to be carrying out the work, directly supervising a mechanic undertaking the work or been in close proximity to the work to inhale the fibres; and there is no direct or sufficiently probative and specific evidence to confirm this
86.3. the material before the Tribunal does not:
86.3.1. provide any specific indication of instances and/or regular duties when the Veteran may have inhaled respirable asbestos fibres during the course of his operational service,
86.3.2. provide any indication of the Veteran’s likely level of exposure to asbestos respirable fibres during his operational service, and/or
86.3.3. to the extent that any inhalation occurred, the circumstances in which this occurred and in particular, whether the respirable asbestos fibres were being applied, removed, dislodged, cut or drilled”.
Consequently, the thrust of the Respondent’s contentions prior to the Hearing was that there was little or no evidence that would have linked the veteran’s operational service to the specific requirements of Factor 6(d) of the SoP.
Subsequent to the Hearing, Ms MacDonald, on behalf of the Respondent, contended (Respondent’s Written Submissions (RWS) para 27) that the Applicant’s hypothesis is speculative, fanciful and too remote or tenuous to be reasonable. Further, Ms MacDonald contended that the hypothesis is only a mere possibility and assertion, and pointed out that the Federal Court has held that a hypothesis must be more than either of those things – Cameron v Repatriation Commission [2003] FCA 1323
The first task, then, is to focus on the requirements of SoP 9 of 2013.
Statement of Principles No 9 of 2013 – Adenocarcinoma of the Kidney
Subclause 3(b) of SoP 9 of 2013 defines “adenocarcinoma of the kidney” as:
“a primary malignant neoplasm arising from the renal tubular epithelium. It is also known as renal cell carcinoma, renal adenocarcinoma, hypernephroma or clear cell carcinoma. This definition includes renal medullary carcinoma and excludes soft tissue sarcoma, carcinoid tumour, non-Hodgkin’s lymphoma and Hodgkin’s lymphoma”
The term “respiratory asbestos fibres” is defined in cl. 9 to mean “asbestos fibres less than five micrometres in diameter.”
Clause 6 outlines the Factors that must as a minimum exist before it can be said a reasonable hypothesis has been raised connecting the death from adenocarcinoma of the kidney with the circumstances of a veteran’s service. In this matter, as previously noted, reliance is placed by the Applicant on Factor 6(d). In order to satisfy Factor 6(d) the following matters must be established:
(a)inhalation of respirable asbestos fibres in an open environment;
(b)the inhalation occurring at the time material containing respirable asbestos fibres was being applied, removed, dislodged, cut or drilled;
(c)inhalation for a cumulative period of at least 3,000 hours before the clinical onset of adenocarcinoma of the kidney; and
(d)the first inhalation of respirable asbestos fibres commenced at least five years before clinical onset.
Apart from Factor 6(d), reference can also be made to Factor 6(c). This Factor provides for the situation where a veteran has inhaled respirable asbestos fibres in an enclosed space for a cumulative period of 1,000 hours before the clinical onset of adenocarcinoma of the kidney and where the first inhalation of respirable asbestos fibres commenced at least five years before the clinical onset of adenocarcinoma of the kidney.
The SoP does not define what is an enclosed space, nor what is contemplated by an open environment. However, despite the absence of an explanation of these terms in the SoP their meaning is tolerably clear. For the purposes of this determination, the Tribunal proceeds on the basis that an open environment is an area without walls and which has maximum air ventilation. An enclosed space is an area which is surrounded by walls and a roof, or is area, whether large or small, not open to the elements, with restricted air ventilation and which is enclosed by some matter or substance.
Inhalation for at least 3,000 hours
In order to satisfy Factor 6(d) a veteran must, inter alia, have been exposed to the inhalation of material containing respirable asbestos fibres for at least 3,000 hours. This can be compared with Factor 6(c) which applies to inhalation of asbestos fibres in an enclosed space, where exposure for only 1,000 hours is required.
It is not disputed that the veteran’s exposure to respirable asbestos fibres while performing operational service was in an open environment. It is also not disputed that from 1961 – 1967, whilst serving as a Vehicle Mechanic at 1 Med Workshop, the veteran was working in an open environment. The Tribunal bases this assumption on the following evidence given by Mr Angow at the Hearing – Tr. 08/11/2018 pp. 38 – 39:
“Now, we see that Mr Greentree, the late veteran, was posted to – it was called One Med or Mede?---Median workshops.
Median workshops?----Yes. It was a – field workshops.
And could you describe the kinds of activities – sorry, I should have said that was on 8 August 1961. At that workshop, what kinds of activities were undertaken?---Okay. Can I explain to the tribunal the difference between the different workshops?
Yes please?---The unit workshops or the OADs, which I first was in, were a unit type workshop, and we replaced components and overhauled some of the minor components. In the field workshop they changed the major components, and in the base workshops, they would change the major components plus also overhauling the major components….
And what are the major components?---The engine assembly, the transmission assembly, the clutch assembly. And if it’s a wheeled vehicle, axle assemblies as well, including brake drums.”
In contradistinction, Mr Angow described the Puckapunyal Area Workshop, as well as the Workshops where the veteran served after his return to Australia in 1971, as enclosed areas. Accordingly, the veteran served in areas that fell with the descriptions of open environment as well as enclosed space.
The Applicant submits (AOS para 32) that in calculating the hours of exposure in Factor 6(d), reliance can also be placed on exposure occurring in a closed space. The Respondent disagrees with that proposition.
If the Tribunal accepts the Applicant’s contentions (AOS paras 52 – 54) with respect to the cumulative hours that the veteran was exposed to respirable asbestos fibres in the period 1961 – 1967, then that period together with his service in South Vietnam, would equate to more than 3,000 hours. Accordingly, there would be no need to rely on the periods of time that the veteran served in enclosed spaces. As is explained below, the Tribunal accepts the Applicant’s contentions.
However, in order that both scenarios are dealt with, I will proceed to deal with the Applicant’s submission and the contentions of the Respondent.
The Respondent contends (RWS para 25) that Factors 6(c) and (d) are separate Factors and were expressly included in the SoP as separate Factors by the RMA. It is contended that the SoP requires one Factor, as a minimum, to be satisfied, and there is no provision in the Act for the satisfaction of different parts of different Factors to enable the Applicant to meet the requirements of the SoP. Further, it is contended, that the Applicant’s submission suggests that the Applicant accepts that she does not wholly meet either one of the exposure Factors in the SoP.
There is some attraction with this contention as it promotes a literal and unconstrained reading of the SoP.
The Applicant contends (AOS para 35), however, that this construction produces an illogical and absurd result. The Applicant pointed out that a deceased veteran who inhaled respirable asbestos fibres in an open environment for 3,000 hours would meet the requirement of Factor 6(d), but a veteran exposed in an open environment for 2,500 hours and a closed environment for 900 hours, would fail to meet the requirements of either Factors 6(c) or (d), although having a cumulative exposure to respirable asbestos fibres of 3,400 hours.
The Applicant further contends (AOS para 36) that a statutory construction may be adopted so as to avoid an absurd, unreasonable or anomalous consequence where it is concluded that the Parliament could not have intended a statute to operate in a particular way, and that an alternative interpretation must be preferred. Reference was made to Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 321 per Mason and Wilson JJ in support of that proposition.
The first issue in resolving this question is to recognise that it is not necessary that a veteran has to be exposed to respirable asbestos fibres for the entire 3,000 hours whilst rendering operational service.
Reference was made to both parties in their submissions to the well-known decision of Emmett J in Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 365.
In the case the veteran served in the RAN from 1964 – 1973, which included three periods of operational service. With respect to his claimed condition of intervertebral disc prolapse, the veteran claimed he had a history of smoking at least 30 pack years of cigarettes before the clinical onset of his condition. The veteran claimed he started smoking after enlisting, and his habit increased until he smoked 30 – 40 cigarettes each day. He continued smoking until he left the RAN. The veteran claimed that the increase in smoking was caused by his operational service.
His Honour Justice Emmett referred to the terms of the relevant SoP and also to s 196B(4).
His Honour pointed out that the relevant SoP is brought into existence in order to comply with s 196B and then observed at [41] – [44]/374:
“[42] The terms of SoP 130 of 1996 purport to comply with s 196B(2) by referring to the requirement ‘factors must be related to any relevant service’. That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996 as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
[43] Thus, smoking at least 30 pack years of cigarettes will be related to the relevant service rendered by a veteran…if the smoking of that quantity of cigarettes:
·arose out of, or was attributable to, that service;
·was contributed to in a material degree by, or was aggravated by, that service; or
·would not have occurred but for the rendering of that service by the person.
Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the veteran’s service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service.
[44] The Tribunal did not approach the construction of SoP 130 of 1996 in that way. The tribunal construed the SoP as requiring that he smoking of at least 30 pack years of cigarettes be wholly attributable to the service. The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996.”
It flows from Kattenberg that in determining if the veteran was exposed to respirable asbestos fibres for the mandated 3,000 hours, recourse can be made to exposure both before and after the period of operational service, provided that one of the tests of causation prescribed by s 196B(14) is satisfied.
Second, the Act should receive a beneficial interpretation – see Hill v Repatriation Commission [2004] FCA 832 at [44] per Mansfield J. Reference, in particular, can be made to the following observation of Fox J in Starcevich v Repatriation Commission (1987) 76 ALR 449 at 454:
“It is hardly necessary to say so, but the legislation should in my view be given a reasonably liberal interpretation; it has often been pointed out that is a matter of great public importance to provide adequately for the incapacitated ex-servicemen.”
Third, and having regard to the purpose of the legislation to provide for veteran’s and their dependants, attention needs to be given to s 15AA of the Acts Interpretation Act 1901 which provides:
“In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”
This principle applies to the interpretation of SoPs – s 46 Acts Interpretation Act 1901.
Fourth, it has long been a rule of statutory interpretation that if a literal interpretation will lead to manifest absurdity and injustice, such a construction should be avoided if it is tolerably open to the tribunal of fact. In the well-known decision of Grey v Pearson (1857) 10 ER 1216, Lord Wensleydale said (at 1234):
“I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”
See also Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 371 per Dixon J (as he then was).
Having regard to the above matters it is tolerably clear what the RMA intended when it included Factors 6(c) and 6(d) in SoP 9 of 2013. The intention was to ensure that a veteran who was exposed to respirable asbestos fibres in an open environment would need to satisfy 3,000 hours of such exposure, but a veteran in an enclosed space would only need to be exposed to such fibres for at least 1,000 hours. I do not read the SoP as not contemplating the situation where a veteran was exposed to both situations, and whose exposure would satisfy the relevant Factor, albeit by a process of amalgamation.
I refer, finally, to the English decision of Adler v George [1964] 2 QB 7 as an example of where the Courts have been confronted with drafting which, if followed literally, would result in an absurd result. In that case the literal wording of the statute would have criminalised conduct in the vicinity of to the prohibited place, but not actually in the prohibited place. By analogy, if one reads Factors 6(c) and (d) literally, a veteran exposed to asbestos fibres for a longer period than prescribed would potentially be deprived of his or her entitlements under the Act because of a quirk of fate. A literal reading of Factors 6(c) and (d) then, would be potentially harsh and unfair, and if an alternative interpretation is reasonably open, then such an interpretation should be adopted.
Accordingly, the interpretation of Factors 6(c) and (d) advanced by the Applicant is preferred, however, as explained below, this interpretation has not been relied upon in ascertaining if the veteran’s service met the requirements of Factor 6(d).
Clinical onset
Factor 6(d) requires that the inhalation of asbestos fibres for a cumulative period of 3,000 hours before the clinical onset of adenocarcinoma of the kidney and the first inhalation of respirable asbestos fibres commenced at least five years before the clinical onset of adenocarcinoma of the kidney.
The term “clinical onset” is not defined in the SoP, but it has been the subject of extensive Tribunal and Federal Court jurisprudence: Repatriation Commission v Cornelius [2002] FCA 750 at [26], Lees v Repatriation Commission (2002) 125 FCR 331 at 335 – 336. It is not disputed that clinical onset of a disease occurs either:
(a)when the veteran becomes aware of some feature of symptom which enables a doctor to say the disease is present at that time; or
(b)when a finding is made on investigation which is indicative to a doctor of the disease being present.
In Kaluza v Repatriation Commission [2010] FCA 1244, Jacobson J made the following observation on “clinical onset” (at [93]):
“The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.”
On appeal, the Full Federal Court referred to this passage with apparent approval – Kaluza v Repatriation Commission [2011] FCAFC 97 at [51].
Fortunately in this matter the Tribunal has the benefit, firstly, of the report of Dr Mei Ling Doery – Exhibit 1 T10 p. 47. Dr Doery opined that the primary cause of the veteran’s death was renal cell carcinoma, and the date of onset was circa 2010.
Apart from Dr Doery’s report the veteran was also assessed by Dr Tim Chan who, on 7 January 2011 after requesting a CT scan, diagnosed the veteran with a “large renal mass probable cancer with possible extension to renal vein” – Exhibit 5 p. 27.
Accordingly, a date of clinical onset of circa 2010 - 2011 was not in dispute, and for the purposes of this Determination the Tribunal accepts the finding of Dr Doery that clinical onset was circa 2010.
Clearly, then, the requirements of SoP 6(d) regarding clinical onset are met, as the 3,000 hours of inhaling respirable asbestos fibres in an open environment concluded at the expiration of the veteran’s operational service (1971) and the date of the first inhalation of respirable asbestos fibres occurred almost fifty years (1961) before the clinical onset.
The evidence
Introduction
As previously highlighted, at this stage the Tribunal does not engage in fact-finding. This, however, does not mean that the Tribunal cannot (and, indeed, must) form an opinion as to what the material points to, and ascertain if the hypothesis is reasonable – Riley v Repatriation Commission [2008] FCA 531.
Ms MacDonald concedes that during the course of his Army career from 1961 until 1980, the veteran would have inhaled respirable asbestos fibres – RWS para 28. In making that concession, the Respondent accepts that during the 1961 – 1968 period the veteran was a Vehicle Mechanic which required significant hands-on work with vehicles that contained respirable asbestos fibres. The Respondent also accepts that is “possible” that the veteran inhaled asbestos fibres after being promoted to a AV. The Respondent, in making the final concession, referred to the Employment Specification (ECN 016) for a AV which was admitted in evidence as Exhibit 6.
ECN 016 sets out 26 duties that an AV was expected to perform. Amongst those duties were: supervise subordinate tradesmen, maintain standards of repair, inspect equipment and perform repairs (limited involvement). In short, a AV was expected, from time to time, to actually be involved in performing repairs, although this was not expected to be part of day to day operations.
Ms MacDonald, properly points out (RWS para 29) that a AV’s primary duties involved supervision, and it is clear from what Mr Angove deposed to and testified, that the veteran was an exceptional officer in that he approached his duties diligently and willingly gave his time and energies to members of his Unit even in performing manual tasks.
The Respondent contends (RWS para 30), and the Tribunal accepts, that following the veteran’s return to Australia in 1971, his exposure to respirable asbestos fibres would have become less frequent having regard to the normal duties of a AV in a non-combat zone.
Finally, the Respondent contends (RWS para 32), and the Tribunal accepts, that the report of Dr Palazzo does not go to the veteran’s potential exposure to respirable asbestos fibres or the nature of the work he actually performed whilst serving in South Vietnam. The Tribunal agrees that Dr Palazzo’s report is of relatively limited assistance when considering Factor 6(d).
Evidence of Mr Angow
Mr Angow gave detailed evidence at the Hearing. At the outset it is important to note that his evidence was helpful and he presented as an honest and straightforward gentleman who retained an excellent memory of his time in South Vietnam and whose knowledge of the duties of a Vehicle Mechanic and AV was impressive. In short, Mr Angove was a witness of credit and his evidence proved of considerable assistance to the Tribunal.
In his first Statement, Mr Angove deposed that he operated in a workshop environment other than when operating in the field on patrol. He deposed that the LAD’s were on patrol for anything up to two or three months, and that his shortest operation was about two weeks – Exhibit 8 para 5, Tr. 08/11/2018 p. 45. Mr Angove testified that he operated in the field for seven of the 10 months he served at Nui Dat and was engaged on six major operations – Tr. 08/11/2018 pp . 44 – 45. On one of those field operations the veteran also participated and assisted in the repair of a Centurion tank Tr. 08/11/2018 pp. 45 – 46. Photographs were produced showing the veteran shirtless and working with two other mechanics on a Centurion tank – Exhibit 10 p. 4 photographs (g) and (h).
The following exchange occurred between Ms MacDonald and Mr Angow – Tr. 08/11/2018 p. 46:
“And you said to Mr Harding, I think, in some questions that Mr Greentree was there watching – supervising work at certain times?----Supervising, correct.
And there was only that one instance where you can recall he actually got in to assist with the tanks?---Yes, but he – if we were working on the inside of the tank, he’d be on the outside looking in or standing on the back of the tank looking down on you working. Because, as a young soldier, it surprised us to see the boss actually keeping an eye on you.”
Mr Angove’s evidence as to the duties he and other Mechanics performed in South Vietnam, was as follows:
(a)the main role of Mechanics was to repair Centurion tanks, but also trucks and generator sets – Tr. 08/11/2018 p. 30;
(b)there were initially 17 Centurion tanks in the Squadron, but by the end of Mr Angove’s operational service this had increased to 19 – Tr. 08/11/2018 p. 29;
(c)the clutch plates and steering brake assemblies of Centurion tanks contained asbestos material in the linings – Tr 08/11/2018 p. 31;
(d)the Mechanics would replace a clutch assembly by lifting it out, but in doing so the persons performing that task would be covered with asbestos dust. The clutch assembly was not disassembled, but sent to Australia for repair – Tr. 08/11/2018 p. 29;
(e)Mechanics worked in a confined space with a gap of only 6 or 8 inches to remove the brake drum lining and replace it with a new lining – Tr. 08/11/2018 p. 31;
(f)the brake drum contained asbestos dust, and if it was removed in the field it was shaken on the ground to get the dust out, or by using a brush or rag to wipe the dust off the other brake components – Tr. 08/11/2018 p. 31;
(g)when at the base camp workshop, mechanics would use a hose to blow the dust out of the components and it would go everywhere – Tr. 08/11/2018 pp. 33 - 34;
(h)no precautions were taken as people were unaware at that time of the problems caused by the inhalation of asbestos fibres – Tr. 08/11/2018 p. 32;
(i)Mechanics would changed a clutch or transmission at least once on every field operation. Out of three tanks on an operation at least one would have a faulty clutch or transmission – Tr. 08/11/2018 p. 30;
(j)it was a daily occurrence for mechanics to be engage in this activity at the base camp. Accordingly, mechanics were exposed to asbestos dust daily – Tr. 08/11/2018 p. 33;
(k)Mr Angove estimated that around 75% of his time was replacing Centurion tank clutches and brakes – Tr. 08/11/2018 p. 47;
(l)Centurion clutch and brake replacements and related work took around three hours to complete, and half of that time involved exposure to asbestos fibres – Tr. 08/11/2018 p. 47;
(m)Mr Angove served with the veteran for approximately 2 – 3 months in South Vietnam – Tr. 08/11/2018 pp. 33, 45;
(n)the veteran would supervise “on the site, not from his office” – Tr. 08/11/2018 p. 34;
(o)the veteran engaged in close supervision of Mr Angove and other mechanics on a daily basis – Tr. 08/11/2018 p. 33;
(p)the veteran would actively supervise and move from one vehicle to the next – Tr. 08/11/2018 p. 33;
(q)the veteran supervised approximately 25 - 30 mechanics at any one time whilst serving in South Vietnam– Tr. 08/11/2018 p. 34.
Mr Angove had not served with the veteran prior to South Vietnam and did not serve with him subsequently – Tr. 08/11/2018 pp. 34, 43.
Although Mr Angove only served with the veteran in South Vietnam, he did serve at some of the Army workshops in Australia that the veteran worked in..
First, Mr Angove testified about the Bandiana Workshops where the veteran served from 20 June 1961 until 7 August 1961. Under cross-examination he stated that he was never actually posted to Bandiana, but in his role as a Warrant Officer AV he visited Bandiana each year and in total around three times – Tr. 08/11/2018 p. 48. He gave the following testimony:
(a)the Bandania Workshops in Victoria were responsible for the complete overhaul and rebuilding of Centurion tanks – Tr. 08/11/2018 p. 35;
(b)approximately 50 - 60 mechanics were engaged at any one time servicing/rebuilding Centurion tanks and other equipment – Tr. 08/11/2018 p. 38;
(c)when a Centurion tank returned to Australia from South Vietnam, it was sent to Bandiana where it was completely “stripped”, dismantled and rebuilt. Certain parts of the tank were either repaired or replaced – Tr. 08/11/2018 pp. 35, 37;
(d)the Bandiana Workshops were also used for other Army equipment including bulldozers, tractors and trucks – Tr. 08/11/2018 p. 35;
(e)the Bandiana Workshops comprised very large hangars approximately 400 metres long;
(f)the clutch plates and brake linings of the trucks, bulldozers and tractors were also likely to have asbestos linings – Tr. 08/11/2018 pp. 36 – 37;
(g)Mr Angove explained that clutch plates and brake linings were adjusted and replaced on a regular basis because “you’ve got 52 tonnes of tank, and you had a small brake…trying to stop it, and they wore fairly quickly” – Tr. 08/1/2018 p. 38;
(h)on average, the working day for a mechanic at Bandiana was approximately 5 ½ - 6 hours – Tr. 08/11/2018 p. 38.
Second, the veteran was posted to 1 Med Workshop from August 1961 until being posted to Puckapunyal Area Workshop in August 1967. Mr Angove gave the following testimony:
(a)1 Med Workshop was a “field workshops” and was in an open area – Tr. 08/11/2018 p. 39;
(b)Somewhere between 30 – 40 mechanics served at the Workshop – Tr. 08/11/2018 p. 40;
(c)field workshops were used to change and overhaul the major components of vehicles, including the engine, clutch, axle and brakes and brake drums – Tr. 08/11/2018 p. 39;
(d)air hoses were used to blow all the dust out of the brake drums of trucks and Centurion tanks – Tr. 08/11/2018 p. 39;
(e)Mr Angove testified that the “whole workshop would just fill up with dust. It would settle eventually, and if you were lucky enough, if you were a lower rank, you would have to sweep it up the next day.” – Tr. 08/11/2018 p. 40.
Third, Mr Angow also testified about the Puckapunyal Area Workshop where the veteran served between 1967–1969. Apart from his testimony, Mr Angove also deposed to a Supplementary Statement dated 6 August 2018 – Exhibit 9. Mr Angove deposed that the Puckapunyal Hangar Main Workshop was a solid structure with doors at either end allowing for both troop/workshop personnel and vehicle movement in and out. Mr Angove annexed to his Affidavit four photographs of the Puckapunyal Workshops. Mr Angove testified as follows:
(a)the main workshop comprised a large Hangar. It was an enclosed area – Tr. 08/11/2018 p. 41;
(b)there were two Workshops, one at Puckapunyal and a supplementary Workshop at Seymour – Tr. 08/11/2018 p. 42;
(c)trucks were repaired at the Seymour Workshop, but Centurion tanks were serviced and repaired at the Main Workshop at Puckapunyal – Tr. 08/11/p. 42;
(d)the Main Workshop had 10 – 12 bays for Centurion tanks, and between 40 – 50 mechanics worked there – Tr. 08/11/2018 p. 42;
(e)there was also a Workshop Service Station which employed 7 – 8 mechanics – Tr. 08/11/2018 p. 42.
Consideration
It is important to stress again, that the Tribunal is not engaged in a fact-finding exercise at this stage. It is permissible, however, for the Tribunal to assess the weight of the evidence presented to determine if the hypothesis put forward by the Applicant is reasonable – Riley v Repatriation Commission [2008] FCA 531. The assessment below, therefore, is not an exercise in fact-finding, but rather an analysis of the evidence to determine if it points to the hypothesis being fanciful or too remote, or, put differently, simply a mere possibility or assertion.
Ms MacDonald did not dispute any of the evidence deposed to, or given, by Mr Angow - RWS para 33. However, she submitted that the Tribunal should afford certain aspects of it little weight. In particular she submitted that his evidence regarding the various pre and post South Vietnam postings were not helpful as he did not work with the veteran at any of those locations, and in some instances, had not worked at or visited those locations during his service. Further, although the veteran and Mr Angow served in South Vietnam at the same time it was only for only a relatively short period. Mr Angove’s evidence, it was contended, focused on his own role and experiences and he did not recall any specific instance of the veteran being exposed to, respirable asbestos fibres during that time - RWS para 33.
Ms MacDonald also submitted (RWS para 37) that even accepting that the veteran was a “hands on” supervisor and may have been exposed to some respirable asbestos fibres in an open environment during his operational service “however compared to the mechanics in the field such as Mr Angow, this exposure would have been minimal even taking into account his supervisory approach.”
The following additional submissions were made by Ms MacDonald:
“38. The work of Mr Angow and the mechanics was very different to the evidence available to the Tribunal in respect of the Veteran’s role at base, which included supervising mechanics, and also travelling to visit repair teams. The Veteran was in Vietnam for 14 months. It is likely, and consistent with Mr Angow’s evidence, that due to the Veteran’s proactive approach as a supervisor he would have been moving around and interacting with the twenty-five mechanics he supervised. There is, however, no evidence about specific instances of the Veteran supervising in Vietnam in circumstances where asbestos fibres were being applied, removed, dislodged, cut or drilled, nor any evidence he supervised the entirety of a job to completion in respect of the potential for his exposure to asbestos fibres. Although the Applicant states that the Veteran would have been exposed to respirable asbestos fibres in the air while moving around the workshop, there is no evidence that those fibres were at the time being applied, removed, dislodged, cut or drilled. Further, on the evidence of Mr Angow, the Veteran would also have been travelling out to various groups in the field, with such travelling and visits further limiting any potential exposure.
39. Whilst the Respondent accepts that the Applicant was likely exposed to respirable asbestos fibres in Vietnam there is no evidence to support a finding that such exposure contributed in a material degree to the exposure as required by the SOP of 3,000 hours.
40. Mr Angow also gave evidence about other workshops and locations that the Veteran was posted to pre and post his operational service, as well as potential vehicles the Veteran may have worked on at these locations…The Respondent respectfully submits that this evidence can have little to no weight in the Tribunal’s considerations. Mr Angow agreed that he was never posted to at least two of the workshops the Veteran worked at, and he did not work with the Veteran at any time that the Veteran was posted to any other workshops. Mr Angow’s evidence regarding these locations is anecdotal and can only relate to his own experience and service…
42. There is no evidence before the Tribunal of specific instances or of regular duties to demonstrate when, how often or for how long the Veteran may have inhaled such fibres. There is also no evidence regarding his likely level of exposure during his operational service. Although it is accepted that some inhalation likely occurred at some time, it is also not known in what circumstances this occurred, and in particular, whether the fibres were being applied, removed, dislodged, cut or drilled as per the SOP at the time of any such inhalation.”
Before dealing with the above submissions advanced by Ms MacDonald, the Tribunal places on record its appreciation for the assistance she provided during the Hearing and the reasoned and persuasive written submissions she provided. Although the Tribunal has reached a different conclusion to that advanced by Ms McDonald, her presentation of the Respondent’s case was of a high professional standard. Suffice it to say, Mr Harding as one of the most experienced Counsel in this area of law, was of like assistance to the Tribunal on behalf of the Applicant.
The Tribunal accepts that the role and work of the veteran was vastly different to the role and work of Mr Angow when they both served in South Vietnam. The veteran’s role was that of a supervisor and manager, and not a mechanic. What was unusual about the veteran is that he was, as Mr Angow described, a “hands on” AV. The following exchange occurred between Mr Harding and Mr Angow – Tr. 08/11/2018 pp. 21 - 22:
“I’m particularly interested in your recollection of the way he went about his job in respect of whether he got involved with any of the mechanical work directly?---He was a hands-on ASM or of supervisor. If you had a problem, you went to him and he sorted it out. In one instance, I was having a problem on a particular vehicle and he actually got under the tank itself and gave us a hand with that particular problem.
Was that usual in your experience with individuals in his level of role?---No. If during the course of the day if you’ve seen him come out of the office once that was typical. Peter Greentree was out in the workshop area, supervising, supervising other mechanics and staff.
I just want to be clear on that, you said in the course of the day if you saw someone coming out once, who were you talking about?---Well that’s a previous ASM of the workshops.
Okay?—Okay, but with Peter, as I said, he was a hands-on guy, he was there, he was looking over, basically looking over your shoulder, but not in a sort of a pushy way, he’d be looking to see what you were doing and if you’re having any problems with it.”
Ms MacDonald contends that there is no evidence about specific instances of the veteran’s supervising when asbestos fibres were being applied, removed etc, nor any evidence that the veteran supervised the entirety of a job.
The undisputed evidence of Mr Angow’s service in South Vietnam was that on most days he and other mechanics, whether at the base, or whilst in the field, were engaged in working on the clutch and brakes of Centurion tanks. This task involved the removal of parts of the tank and resulted in respirable asbestos fibres being spread around the workshop or the area in the field where the Centurion tank was positioned. A sensible interpretation of that undisputed evidence is that, as the veteran was supervising 25 – 30 mechanics, and having regard to his supervisory approach, it is likely that he was being exposed to respirable asbestos fibres on a daily basis and for a significant portion of each working day.
Mr Angow described the work patterns of mechanics at Nui Dat in South Vietnam in circa 1970 in clear and precise language. The picture painted is of a sizeable group of mechanics who were involved in servicing or dismantling Centurion tanks and other vehicles on a daily basis and constantly coming into contact with respirable asbestos fibres. The veteran was closely supervising the mechanics, and Mr Angow describes the veteran standing close to the mechanics and climbing onto Centurion tanks to watch what was going on. He personally witnessed and photographed the veteran under a Centurion tank assisting the mechanics with their dismantling and removal work whilst in the field.
Ms MacDonald pointed out that Mr Angow only worked with the veteran for two or three months in South Vietnam and the majority of his time was spent in the field – RWS para 37. Whilst that is the case, Mr Angow’s direct working experience with the veteran over a period of approximately three months provides the Tribunal with sufficient evidence to draw inferences about what the veteran’s work behaviour and style of supervision would have been during his period of operational service.
The thrust of Ms MacDonald’s contentions would normally have much force, as Mr Angow explained that other AV’s did not have a “hands on” approach and would only infrequently come into the workplace and observe what was going on. In such instances the points raised by Ms McDonald would be accepted with the consequences she advances.
Whilst Ms MacDonald is correct in submitting that there is no specific evidence of the veteran being present when respirable asbestos fibres were dislodged, the totality of the evidence inevitably leads to this conclusion. Ms MacDonald conceded that the veteran was exposed to respirable asbestos fibres whilst serving in South Vietnam (RWS para 39). The only issue in dispute, then, is the extent of that exposure.
Accepting that the veteran operated in the manner described by Mr Angow, and further accepting the work patterns of the mechanics he described and the type of work on Centurion tanks they performed, it is open to infer that the veteran was exposed in South Vietnam to respirable asbestos fibres on most days and for at least two or three hours each day.
The resolution of this issue, however, does not finalise the inquiry required of the Tribunal. The first stage of the inquiry requires a determination whether the material presented points to the Factor relied upon. In other words, in the context of this inquiry, does the material point to the veteran being exposed to the inhalation of respirable asbestos fibres for at least 3,000 hours.
Mr Harding submitted (AOS para 51), and the Tribunal accepts, that it is impossible to determine with exactitude the number of hours the veteran was exposed to the inhalation of respirable asbestos fibres. However, as Mr Harding submits, the Act does not require the Tribunal to do so. Whether the material “points to” or “supports” a hypothesis can be determined (as in this case, and as highlighted above) by inference or assumption
Mr Harding, on behalf of the Applicant, submitted (AOS para 53(c)) that the veteran served for more than 13 months in South Vietnam and would have been exposed to the inhalation of respirable asbestos fibres at the time material containing such fibres were being removed etc when mechanics were performing mechanical work on clutch plates, steering brake assemblies and brake assemblies of Centurion tanks and on the clutch plates and brake assemblies of trucks. Accordingly, Mr Harding submitted, the veteran’s operational service would have contributed in a material degree to the inhalation of the total requisite period of inhalation of at least 3,000 hours.
Mr Harding referred (AOS para 51) to a number of decisions and principles which supported his submission:
(a)whether material “points to” or “supports” a hypothesis is, of its nature, a matter which can be determined by inference or assumption – Elliott v Repatriation Commission [2002] FCA 26 at [5];
(b)it is not open to the Tribunal at this stage to infer or assume that each essential element is met – Ellis v Repatriation Commission [2014] FCA 847 at [63];
(c)it is necessary that the hypothesis be supported by some evidence, but there is no requirement that there be evidence to support the hypothesis at every point – Repatriation Commission v Stares (1996) 66 FCR 594 at 599 – 600;
(d)it is only necessary that the hypothesis, including any element based upon an assumption, be supported by the material before the Tribunal – Repatriation Commission v Glanville (2010) 114 ALD 616 at [57]; and
(e)it is not necessary that material point only to one conclusion.
The Tribunal agrees that this an accurate summary of the legal principles underpinning step 3.
Mr Harding submitted (AOS para 53) that the evidence before the Tribunal supports a finding that the raised facts uphold the essential elements of the hypothesis for the following reasons:
(a)Mr Angow’s evidence that mechanical duties were performed in South Vietnam for approximately 5 ½ to 6 hours per day out of an 8 hour day i.e. the time when mechanics were in the workshop when workshop activities were being undertaken;
(b)the veteran served for more than 6 ¼ years at Bandiana Area Workshop and 1 Med Workshops in an open environment where he would have inhaled respirable asbestos fibres at the time material containing respirable asbestos fibres were being removed and dislodged when mechanics performed mechanical work on the clutch plates, steering brake assemblies and brake assemblies of the Centurion tanks and on the clutch plates and brake assemblies of the trucks. Mr Harding submitted, that assuming an average of say 260 working days per year, the veteran’s period of service at Bandania and 1 Med Workshops equates to at least 1625 working days. To reach a cumulative period of 3,000 hours would require an exposure to, and inhalation of, respirable asbestos fibres for approximately 1.8 hours per day;
(c)the veteran served for more than 13 months in South Vietnam in an open environment where he would have inhaled respirable asbestos fibres at the time material containing respirable asbestos fibres was being removed and dislodged when mechanics performed mechanical work on the clutch plates, steering brake assemblies and brake assemblies of the Centurion tanks and on clutch plates and brake assemblies of the trucks. The veteran’s Vietnam service would have contributed in a material degree to the inhalation of the total requisite cumulative period of inhalation of 3,000 hours; and
(d)after his service in South Vietnam, the veteran served in Puckapunyal Area Workshop an enclosed area and then Northern Command Workshop. These periods of service would also have also contributed in a material degree to the veteran’s inhalation of the total cumulative requisite period of inhalation of at least 3,000 hours.
Two points need to be made about Mr Harding’s final submission. First, the veteran’s service at Puckapunyal Area Workshop was prior to the veteran being posted to South Vietnam in August 1970. Second, the test of materiality is only germane to the veteran’s period of operational service.
The undisputed evidence is that the veteran was serving as a Mechanic in Victoria from 1961 until 1967 in working conditions that meet the description of an “open environment” in Factor 6(d) of SoP 9 of 2013. It is also not disputed that during this time the veteran, as a Mechanic, would have been working with Centurion tanks, trucks and other heavy equipment. Further, it is also undisputed, that this work would have involved the dismantling, removal etc of clutch and brake components, and thus would have resulted in exposure to respirable asbestos fibres. The only matter which is not clear is that quantum of time that the veteran was exposed to respirable asbestos fibres.
Assuming that the veteran worked a five day week for approximately 40 weeks per year on mechanical work (thus excluding holiday and sick leave plus time for training and other work related matters), and further assuming that the average hourly exposure rate per day to respirable asbestos fibres was no more than three hours, one is presented with a yearly average of approximately 600 hours of exposure. If one then extrapolates that over six years (1961 – 1967), a figure of 3,600 hours is arrived at.
If one also accepts the veteran was exposed, as a supervisor in South Vietnam, to respirable asbestos fibres for approximately 5 hours each day (having regard to the style of his supervision), then one arrives at a figure of approximately 1,000 hours of exposure during his operational service. Clearly, these figures are estimates, but such an exercise is unavoidable when a tribunal of fact with limited information, and decades after the event, has to sensibly apply the very specific and arithmetic requirements of an SoP. Nonetheless, based on the evidence presented, the above figures comport with a sensible reading of the uncontested material.
Despite the lack of arithmetic certainty in the figures outlined above, there is one matter that is not in dispute. Having regard to the veteran’s years of service, the nature of his occupation, the type of work he was performing and his style of supervision, the requirement that he was exposed to respirable asbestos fibres in an open environment, in the manner mandated by Factor 6(d) for a period of at least 3,000 hours was met.
Although the Tribunal is satisfied that the requirements of Factor 6(d) are met, attention must also be directed to the requirements of Clause 5 of SoP 9 of 2013, namely that Factor 6(d) “must be related to the relevant service rendered by the person.” This, in turn, requires consideration of s 196B(14) which enumerates circumstances that satisfy the requirement that a Factor causing, or contributing, to a death is related to the service rendered by a veteran.
The task required of the Tribunal at this stage is to ascertain if there is a connection between a person’s service and relevant Factor in the SoP, and not whether there is a connection between the service rendered and that person’s disease or death. This was explained by the Full Federal Court (Finn, Gilmour and Perram JJ) in Repatriation Commission v Knight (2012) 202 FCR 451 as follows (at [13]/454):
“…the Tribunal asked itself whether Mr Knight’s service materially contributed to ischaemic heart disease. Nor is it to be doubted that this is not the inquiry required by s 196B(14)(d) which seeks to discern a connexion not between the service and the veteran’s disease or death but instead between the service and the factor (here exposure to tobacco smoke)…it is an error to inquire into whether there is a connexion between service and death and that the statutory inquiry is whether there is a connexion between service and the posited factor…”
The rationale for mandating the connexion between service and relevant Factor(s) in an SoP rather than, as in personal injuries litigation the connexion between the ailment and the situation or event for which a claimant seeks compensation, was explained by the Full Court as follows ([16]/455):
“By adopting that approach, complex as it is, the Act ensures that these at times controversial causation questions are determined in the same way in every case and without the need for summoning expert evidence on the issue in each hearing before the Tribunal.”
It was not contested that the relevant “test” of causation in s 196B(14) for this matter was subparagraph (d):
“(d) it was contributed to in a material degree by, or was aggravated by, that service…”
Ms MacDonald submitted (RWS para 39) that there was no evidence to support a finding that the veterans’ exposure to respirable asbestos fibres whilst on operational service contributed in a material degree to the 3,000 hours of exposure as required by Factor 6(d) of SoP 9 of 2013.
Conversely, Mr Harding submitted (AOS para 53(c)) that the veteran’s 13 months service in South Vietnam where, it was contended, he would have inhaled respirable asbestos fibres, contributed in a material degree to the inhalation of the total requisite cumulative period of inhalation of 3,000 hours.
Paragraph 196B(14)(d) was considered by the Full Federal Court in Gilkinson v Repatriation Commission (2011) 197 FCR 102. In particular, reference can be made to the judgment of Perram J. His Honour made the following observations [5], [12]/104, 106:
“As a matter of ordinary English the expression ‘arose out of, or was attributable to, that service’ is not narrower in its operation than the expression ‘was contributed to in a material degree by, or was aggravated by, that service.’ Material contribution and aggravation connote, in ordinary English, a relationship of substantial causality although it is clear that sole causality is not meant…
The learned primary judge was concerned that if para (b) was not given some more confined operation then it would effectively render para (d) superfluous. However, I do not think this can, with respect, be correct. Although there is some apparent similarity, the two provisions deal, I think, with discrete topics. Paragraph (b) is concerned with those cases where the factor (which stands as proxy for the injury or disease within the intersticies of ss 120 and 120A) would not exist without the service; para (d) with those cases where the factor would have existed in some form without the service but where the service can be seen as contributing to or aggravating it.”
As his Honour highlighted, a relationship of substantial but not sole causality is intended by the phrase “contributed to in a material degree”. The evidence before the Tribunal is that the veteran was a “hands on” AV who directly supervised the mechanics in the workplace on a daily basis. The photographic evidence highlights that at times the veteran went beyond supervision and sometimes physically assisted the mechanics in the performance of their duties.
The Tribunal was very fortunate to receive evidence from Mr Angow who served with the veteran for a period of time in South Vietnam and was able to produce contemporary photographs of the veteran interacting and working with, the mechanics he supervised.
That uncontested evidence leads inexorably to the conclusion that during the veteran’s operational service in South Vietnam he was exposed to the inhalation of respirable asbestos fibres on most days of the week and for a number of hours each day. Further, that exposure was substantial and over a long period of time.
It is the case that the veteran served in an open environment for approximately six years (1961 – 1967) prior to his operational service whilst serving as a Vehicle Mechanic and was exposed to the inhalation of asbestos fibres. However, I do not read Perram J as explaining that the test of materiality can only be met if a majority of the hours of inhalation of respirable asbestos fibres occurred during operational service. Rather, a more nuanced approach is required. The Macquarie Dictionary ( 7th Ed 2017) defines “material”, inter alia, as “13. of substantial import or much consequence”. The veteran’s operational service in South Vietnam was for more than one year, and he served both at the Base and in the field. The veteran was an energetic and dedicated professional who took great care of both the work performed by his mechanics and the welfare of the mechanics. He played an active and interventionist role. The evidence, then, leads to the conclusion that the veteran was substantially exposed to the inhalation of respirable asbestos fibres during this period. In these circumstances, the degree of inhalation was of substantial import and of much consequence, and thus satisfies the requirement of material contribution in s 196B(14)(d).
Accordingly, Step 3 of the Deledio methodology is satisfied.
Fourth Step
Having dealt with the requirements of s 120(3), the Tribunal is now required to consider s 120(1). This subsection requires that the Commission shall determine that injury, disease or death was war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
The task required of the Tribunal at this stage was helpfully explained by Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 (at 416) as follows:
“The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, ‘beyond reasonable doubt, that there is no sufficient ground for making the determination’ even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that he factual foundation upon which the hypothesis can operate does not exist.”
As such in order that the Applicant’s claim be rejected at this stage of the inquiry, the tribunal of fact must find that the facts necessary to support the hypothesis are disproved beyond reasonable doubt or that a fact contrary to the raised hypothesis, and which is fatal to it, has been proved beyond reasonable doubt – see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570 – 571.
The term “beyond reasonable doubt” carries with it the criminal law standard of proof. The policy rationale for this unusual state of affairs was explained by Murphy J in Repatriation Commission v Law (1981) 147 CLR 635 at 638 – 639 as follows:
“In ancient and modern civilizations the treatment of former soldiers and sailors has been an important social issue. Historically the tendency has been to discard them and ignore the physical, social or economic damage to them by military service. The Australian solution to the problem of ensuring that the costs of war-related loses were borne by society rather than fall on the injured persons or their dependents was the adoption (along with other measures) of the ‘onus of proof’ section in war veterans legislation which requires the Commonwealth or its agency to disprove a claim rather than to require the claimant to prove it. It has been obvious that this remedial section would result and has resulted in many claims being allowed which in truth were not well-founded. This was the price of ensuring that no valid claim was rejected because of insufficiency of proof.”
It flows from these explanations that it is at this stage of the inquiry that findings of fact are made by the Tribunal. In this matter the following factual findings are made:
(a)the veteran served in the Australian Army from 1 December 1960 until 5 December 1980;
(b)the veteran served as a Vehicle Mechanic at various locations in Victoria between 1961 – 1968;
(c)the veteran was exposed, while serving as a Vehicle Mechanic, to the inhalation of respirable asbestos fibres in an open environment at the time material containing respirable asbestos fibres was being applied, removed, dislodged, cut or drilled between 1961 – 1967;
(d)the veteran rendered operational service whilst posted to South Vietnam between August 1970 until September 1971;
(e)the veteran was a Warrant Officer Class 2 (AV) during his service in South Vietnam;
(f)the veteran was exposed, whilst serving in South Vietnam, to the inhalation of respirable asbestos fibres in an open environment at the time material containing respirable asbestos fibres was being applied, removed, dislodged, cut or drilled;
(g)whilst serving at Puckapunyal Area Workshop from August 1967, and also whilst serving at North Command Workshops (1971 – 1975) and No 2 Base Workshop, Holsworthy Barracks (1976 – 1980) the veteran was exposed to the inhalation of asbestos fibres in an enclosed space at the time material containing respirable asbestos fibres was being applied, removed, dislodged, cut or drilled;
(h)the veteran was exposed to the inhalation of asbestos in an open environment for more than 3,000 hours before the clinical onset of adenocarcinoma of the kidney.
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.
I certify that the preceding 162 (one hundred and sixty - two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
............................[Sgd]............................................
Associate
Dated: 1 March 2019
Date of hearing: 8 November 2018 Date final submissions received: 17 December 2018 and 18 January 2019 Counsel for the Applicant: Mr Anthony Harding Counsel for the Respondent: Ms Jessica MacDonald Solicitors for the Respondent: Australian Government Solicitor
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