Hawkins v Repatriation Commission

[1993] FCA 296

Re: THOMAS JAMES HAWKINS
And: THE REPATRIATION COMMISSION
No. G887 of 1992
FED No. 296
Number of pages - 9
Administrative Law
(1993) 17 AAR 290
(1993) 30 ALD 59

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J(1)

CATCHWORDS

Administrative Law - appeal - pension entitlement under Veterans' Entitlements Act 1986 - causal connection between eligible service and heart disease - scope of operational service.

Veterans' Entitlements Act 1986 (Cth) - ss.5, 6, 7, 9

Marshall v. Minister of Pensions (1948) 1 KB 106

John Stewart and Son (1912) Ltd v. Longhurst (1917) AC 249

Repatriation Commission v. Thompson (1988) 82 ALR 352

Repatriation Commission v. Doessel (1990) 95 ALR 590 and on appeal at (1990) 95 ALR 704

HEARING

SYDNEY, 19 April 1993

#DATE 13:5:1993

Counsel for the applicant: Mr M.B. Smith

Solicitor for the applicant: Raymond L. Whitten and Co.

Counsel for the respondent: Mr P. Hanks

Solicitor for the respondent: Australian Government Solicitor

ORDER

The Court orders that:

1. The decision on appeal be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.

2. The respondent pay the costs of this appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES J This is an appeal from a decision of the Administrative Appeals Tribunal constituted by senior member Mr M.D. Allen, Dr M.E.C. Thorpe and Mr T.R. Russell. The Tribunal affirmed the decision under review that the applicant, Mr Thomas James Hawkins, was not entitled to a pension under the Veterans' Entitlements Act 1986 (Cth) ("the Act") as there was no reasonable hypothesis connecting his ischaemic heart disease with his eligible service.

1. On the hearing of the appeal, Mr Matthew Smith of counsel appeared for Mr Hawkins and Mr Peter Hanks of counsel appeared for the Repatriation Commission.

2. The eligible service claimed was "operational service" as defined by s.6(1)(e) and (5) of the Act. Accordingly, the standard of proof applicable was that provided by s.120(1) and (3) of the Act, thus raising the issue of a reasonable hypothesis. The Tribunal appears to have accepted that, had there been a reasonable hypothesis connecting Mr Hawkins' smoking and thus his ischaemic heart disease with his eligible service, then the claim would have been allowable.

3. Mr Hawkins joined the Navy in 1959. In 1968, when he had reached the rank of Chief Petty Officer, he was posted to HMAS Sydney. He had married in 1966 and, at the time of posting to HMAS Sydney, had one child born in February 1968. One of the tasks of HMAS Sydney was to voyage to South Vietnam, transporting servicemen, stores and cargo to and from Vietnam as required. When engaged in this task, particularly whilst in the South China Sea, HMAS Sydney was accompanied by escort vessels and it normally embarked one flight of four helicopters for each voyage. Mr Hawkins was a crew member of HMAS Sydney when the vessel voyaged to South Vietnam arriving in Vung Tau Harbour on 15 February 1969 and again on a later voyage when it arrived in that harbour on 19 May 1969.

4. The Tribunal described events of the first of these voyages as follows:-
   

"22. Upon posting to 'HMAS Sydney' the Applicant was made aware by other crew members of the hazardous nature of the ships' being in Vung Tau Harbour. The vessel was an attractive target for the enemy and for three days prior to entering harbour and for three days after leaving, the ship was at 'defence stations' a status one down from 'actions stations' and with guns manned and loaded. Whilst in Vung Tau Harbour the vessel was constantly circled by divers in rubber boats and charges were dropped at random to guard against under water attack. There was also a recognition of the possibility of either rocket or mortar attack upon the vessel.

23. The Applicant then aged 25 was a non-smoker. During the voyage to South Vietnam, after leaving Sydney, he was apprehensive, being concerned for his own safety and for the future of his family should anything happen to him. It was in this frame of mind that during the voyage from Sydney to Fremantle, which was the 'Sydney's' last port of call in February 1969, that he was persuaded to have a cigarette and was told it would calm him down.

24. He found that a cigarette and a beer did relax him and so each time there was a beer ration he also had a cigarette. By the end of the first week he had purchased his first packet of cigarettes and, by the time the voyage was over, he was to use his words 'hooked'."

1. Mr Hawkins' evidence on the point was as follows:-
   

"Now, how did you come to have your first cigarette?---Well, I think it was prior - just prior to Fremantle - we were given quite a few beer issues by the Captain - Captain Clarke. And as petty officers we were able to get a little more than the junior sailors and as I mentioned earlier, cigarettes were always being handed out and people didn't realise you didn't smoke and I was feeling a little bit concerned and I was offered a cigarette and I took it and that's - sorry as I am now.

Well, were you conscious at the time that there was a change of behaviour by you?---I was and --- What were the reasons you had for changing your behaviour?--- I would say the concern for my safety in the future. Well, what did you think a cigarette would do to you?---I was always told it calmed everyone down. Did you find it had an effect on you, the cigarette smoking?---It did.

What effect did you find it had?---I was extremely dizzy initially. Did you have another cigarette?---I did. I probably only had a couple on the first instance.

So what was the general effect of that cigarette?---Well, that and the beer did relax me somewhat. So what happened on the subsequent days that they were smoking?---Well, I - as I - each time we had a beer issue it seemed to be a temptation I couldn't resist. And within a matter of a week or so I had bought my first packet. ...

Did you give up smoking when it returned to Sydney?---No, I didn't. Did you think about whether you should or should not continue smoking?---I did. My wife wasn't very impressed. Well, what happened?---Well, I found that at that stage I was wanting to have a cigarette more often and I was hooked."

1. Under s.9(1)(b) it is sufficient that the disease the subject of the claim arose out of or was attributable to any eligible war service. A disease will be attributable to eligible service if the service contributed in a material way to its development. When a disease is alleged to be due to camp life or life on board ship, the question will usually be whether life in camp or on board ship was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service 'must be a cause as distinct from being part of the circumstances in or on which the cause operates.' See Marshall v. Minister of Pensions (1948) 1 KB 106 at 110; W. v. Minister of Pensions (1946) 2 All ER 501 at 502; Minister of Pensions v. Chennell (1947) 1 KB 250 at 256. In Goward v. The Commonwealth (1957) 97 CLR 355 at 364, Dixon CJ, Williams, Webb and Kitto JJ indicated that it was not sufficient that there be "antecedent conditions which are preliminary to, but hardly operative causes of, the accident."

2. The principal issue with which the Tribunal had to deal was that of causation. The issue was whether the eligible service was a cause of the development of Mr Hawkins' ischaemic heart disease. It was not in issue that, for the purpose of the standard of proof established by ss.120(1) and (3) of the Act, Mr Hawkins' smoking habit was a cause of his disease. Thus, the issue was whether Mr Hawkins' eligible service contributed in a material way to the development and maintenance of his smoking habit. As smoking is addictive, the circumstances in which the habit developed were important. The Tribunal rejected Mr Hawkins' claim for this reason:-
   

"30. As pointed out by the High Court in Law ..., the connection with war service is not confined to a temporal one, all that is required is that the connection be a causal one (see 147 CLR at page 649). In this case the Applicant had, throughout some nine years of naval service, been able to resist the oft cited reasons quoted in this Tribunal for the commencement of smoking (for example, peer pressure, the ready availability of cigarettes and, in the case of the Navy at sea, duty free cigarettes). That on his way of operational service, because of apprehension regarding that service, he succumbed to the suggestion of his comrades and commenced to smoke in order to relieve tension is entirely understandable. However, the Applicant had not yet undertaken operational service. The cause of his starting to smoke was nothing connected with operational service as opposed to anticipation of that service."

1. It was not in dispute that Mr Hawkins had operational service on the two occasions when HMAS Sydney was in Vung Tau Harbour. That fact was established by an instrument published by the Minister for Defence on 22 May 1986 under s.5(12)(b) of the Act. An effect of the instrument is that HMAS Sydney was deemed to have been allotted for duty in South Vietnamese waters during the period while the vessel was present in those waters between 31 July 1962 and 11 January 1973. Accordingly, the members on board the HMAS Sydney were engaged in operational service at least on the days during which HMAS Sydney approached Vung Tau Harbour, was berthed there and departed. South Vietnam was prescribed as an operational area by item 4 of Schedule 2 to the Act.

2. Issues of causation must be approached in a factual way in the light of common sense and human experience. See Mason CJ in March v. E. and M.H. Stramare Pty Ltd (1991) 171 CLR 506 at 515. In this light, the Tribunal erred in law in concluding that the event of Mr Hawkins' starting and continuing to smoke was not causally connected to his operational service. On Mr Hawkins' evidence, which was accepted by the Tribunal, there was a causal connection. Two elements played a causative role. The first was Mr Hawkins' apprehension regarding service in Vung Tau Harbour. The second was that it was the circumstances of the voyages to South Vietnam and of the return home which influenced Mr Hawkins to commence to smoke. Both of these aspects could have been regarded by the Tribunal as relevant factors of a causative nature.

3. It has long been accepted in cases dealing with employees' compensation, that events which occur prior to the commencement of work or subsequent to the cessation of work may be regarded as causally connected with that employment. See, for example, Moore v. Manchester Liners, Limited (1910) AC 498, John Stewart and Son (1912) Ltd v. Longhurst (1917) AC 249 and Lancashire and Yorkshire Railway Co v. Highley (1917) AC 352. In John Stewart and Son v. Longhurst, it was held that a widow was entitled to compensation when her husband, returning from work on a barge, fell off the quay and was drowned. Lord Lindley LC said at 254-5:
   

"On the facts, I should come to the conclusion that he did go by the Waterloo gate, and that he lost his way owing to the fog, and that the accident arose directly by reason of his being obliged to cross the dangerous zone of lines in order to get to his work. I think, therefore, that the deceased man was at the time of the accident acting in the course of his employment and that the accident arose out of his employment. The cases show that the Court is not bound by a hard and fast line to consider that a workman is not acting in the course of his employment until he actually begins the work which he has to do."

1. That principle has largely been overtaken by employees' compensation legislation, which has dealt with the circumstance of travel to and from work, as s.6(5) of the Act has dealt with the circumstance of voyaging to and from operational service. But whilst these legislative provisions deal expressly with such a circumstance, they do not make any less valid the point that issues of causation are not necessarily to be determined by the formal boundaries of location and time by which service or employment may be delineated. It appears that the Tribunal interpreted the words "arose out of", or "was attributable to" as having a meaning limited to the time and location of operational service. However, s.9(1)(b) is not so limited and there was an error of law in the Tribunal's approach in this respect.

2. Moreover, the Tribunal thought that the decision of this Court in Repatriation Commission v. Thompson (1988) 82 ALR 352, was helpful in that it laid down that the test as to whether a serviceman has incurred danger is an objective one and that a mere subjective perception of danger is insufficient. That test is inappropriate as to the issue of causation. In causation, the issue is whether one event has a causative relationship with another. It is misleading to speak of the test as objective, for it may well be the serviceman's personal response to an event which provides the causative element. The question is simply one of fact as to whether one event contributed to another.

3. I turn now to another issue, that of Mr Hawkins' operational service as defined by the Act. Provisions of the Act at the relevant time read:-
   

"5 (1) In this Act, unless the contrary intention appears: ...

'continuous full time service' means:

(a) in relation to a member of the Defence Force:

(i) service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service;" ...

'unit of the Defence Force' means a body, contingent or detachment of the Defence Force;

...

(12) In this Act, a reference to a person, or a unit of the Defence Force, that was allotted for duty in an operational area shall be read as a reference to a person, or unit of the Defence Force -

(a) that was so allotted for duty in the area in accordance with administrative arrangements applicable in the part of the Defence Force in which the person was serving, or of which that unit formed a part, as the case may be; or

(b) that is, by an instrument in writing signed by the Minister for Defence, deemed to have been allotted for duty in an area described in item 4 or 8 in Schedule 2 during the period specified in that item." "6 (1) For the purposes of this Act - ...

(e) a person who has, as a member of the Defence Force, rendered continuous full-time service outside Australia -

(i) as a member of a unit of the Defence Force that was allotted for duty; or

(ii) while the person was allotted for duty, in an operational area ... shall be taken to have been rendering operational service while the person or the unit was so allotted for duty.."

6 (5) For the purposes of this Act, the operational service of a person in an operational area, being the operational service of the person described in paragraph (1)(e) -

(a) shall be taken to have commenced -

(i) if the person was in Australia on the day as from which the person was allotted for duty in that area - on the day on which the person departed from the last port of call in Australia for that service; or

(ii) if the person was outside Australia on the day as from which the person was so allotted for duty - on the day as from which the person was so allotted for duty; and

(b) shall be taken to have ended at the expiration of -

(i) if the person was allotted for duty from an operational area to another area outside Australia (not being an operational area) - on the day on which the person arrived at that other area or on the day as from which the person was allotted to that other area at a time when the person was in that other area; or

(ii) in any other case - on the day on which the person arrived at the first port of call in Australia on returning from operational service." "7 (1) Subject to sub-section (2) for the purposes of this Act -

(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service..."

1. It will be seen that s.6(5) incorporates the principle I have already discussed, namely that operational service may extend beyond the place where and the time during which service in the operational area occurs. Section 6(5) deals with travel to and from an operational area and, ordinarily, incorporates within operational service the period from the departure from the last port of call in Australia for that service to the arrival at the first port of call in Australia on return from service.

2. It was submitted by Mr Hanks, counsel by the Repatriation Commission, that the unit, HMAS Sydney and its complement, was not allotted for duty in Vung Tau. I need not discuss the submission at any length for it was inconsistent with the decision of Spender J at first instance in Repatriation Commission v. Doessel (1990) 95 ALR 590 and of Lockhart, Pincus and Ryan JJ on appeal at (1990) 95 ALR 704. The Full Court said, at 710, that the words "allotted for duty" simply meant assigned or posted for duty. The Full Court indicated that a serviceman would not be allotted for duty in an operational area merely by being there in the course of his service. The Full Court indicated by way of example, at 709, that a serviceman might find himself located by accident, such as shipwreck, in an area to which he had not been allotted for duty.

3. Mr Hanks submitted that it was necessarily to be implied from the Act that a unit or person was allotted for duty in an operational area only if placed within the structure of local control which governed the movement and duties of servicemen in that operational area. That principle is not negated by the facts of Doessel's case or Davis' case. Nevertheless, the Act does not so provide and I am unaware of any circumstance which would make it a necessary condition of allotment for duty in an operational area. As the facts of the present case illustrate, a serviceman may serve in an operational area in the ordinary course of his duty without being subject to the control structure which governs the local forces. The Act defines operational service by reference to allotment for duty in an operational area, not by reference to service within a command structure.

4. The Tribunal applied the principle for which Mr Hanks contended and found that the HMAS Sydney and its complement were not allotted for duty in South Vietnam. The Tribunal said:-
   

"In this case the 'Sydney' was not sent to serve in South Vietnamese waters nor was it posted or assigned. It was tasked to make a voyage which took it into South Vietnamese waters for one day or slightly more than one day. It did not serve in the sense of being attached to any naval or other military formation within South Vietnam to be tasked according to the operational requirements of the Commanding Officer of that formation."

1. I cannot find in the words "allotted for duty" any such requirement that the unit or person be attached to a naval or other military formation within the operational area. The word "allot" is an ordinary word of the English language, not a term having special signification when used in relation to the defence forces. It therefore cannot carry the signification which the Tribunal applied to it of requiring attachment to any specific naval or military formation or command structure.

1. HMAS Sydney and its complement were assigned to serve in the waters of South Vietnam for such time as was required to pass through those waters into Vung Tau Harbour, to unload the troops and cargo designated for that port, to take on board any troops and goods to be returned to Australia and to leave the port and surrounding waters. The Tribunal considered that such service was not "in" an operational area. But it was service within that area.

2. Mr Hawkins was not individually allotted for duty in South Vietnam. However, a unit of the Defence Force is defined by s.5(1) as "a body, contingent or detachment of the Defence Force". Counsel were agreed that HMAS Sydney and its complement comprised a unit of the Defence Force. No doubt, most such bodies, contingents and detachments would be attached to the naval and military formations within the area and under the control structure established for units operating in that locality. However, such attachment is not required by the Act.

3. The Tribunal thus erred in law by implying into the words "allotted for duty" a requirement for which the Act does not provide. This error affected its decision that Mr Hawkins did not fall within s.5(12)(a) of the Act.

4. The Tribunal relied upon s.5(12)(b) of the Act, taking the view that the case was covered by the instrument issued by the Minister for Defence on 22 May 1986 which read, inter alia:-
   

"I, Kim Christian Beazley, Minister of State for Defence, pursuant to paragraph 5(12)(b) of the Veterans' Entitlements Act 1986 and with effect on and from 22 May 1986, HEREBY DEEM -

(A) each unit of the Defence Force specified in Part 1 of the Schedule hereto to have been allotted for duty in the area comprising the operational areas specified at items 4 and 8 of Schedule 2 to that Act during each period between 31 July 1962 and 11 January 1973 (both dates inclusive) during which that unit was present in that area;

..."

1. The Tribunal held that, under this instrument, Mr Hawkins was allotted for duty in South Vietnam only when HMAS Sydney approached and anchored in Vung Tau Harbour on 15 February 1969 and 19 May 1969. The Tribunal did not set out the terms of s.6(5) of the Act, and it may be inferred that the Tribunal considered that s.6(5) had no application.

2. However, s.6(5) may apply whether the allotment for duty occurs under paragraph (a) or paragraph (b) of s.5(12). Section 6(5) is a general provision of the Act which sets out the principle that, if a member of the service is within Australia and is called to travel from Australia to an area of operational service, then the period of operational service will encompass both the service in the operational area and also the period from the departure from the last port of call in Australia to the return to the first port of call in Australia. That is a general principle and there is no reason why it should not be given effect in Mr Hawkins' case. The unit was sent from Australia and returned to Australia. The Minister's instrument merely specified the term of duty to which the unit was deemed to have been allotted, that is to say, it specified the period of duty within the operational area, just as a posting to a unit in South Vietnam might record the date of commencement of service in South Vietnam and the period thereof.

3. When s.6(1)(e) refers to "the period in which the person or the unit was so allotted for duty", it refers to the period in the operational area. The Minister's instrument likewise specified that period. Section 6(5) on the other hand, looks not to that period but to the point of time when the allotment, in the sense of a posting or assignment, took effect. Section 6(5) speaks of "the day as from which the person was allotted for duty in that area." The application of s.6(5) may not always be clear, for the words "allotted for duty" are not words of precision or technicality. There may on occasions be difficulty in ascertaining what was the precise event that constituted the allotment for duty. Nevertheless, the principle which s.6(5) posits is clear and, if given a practical commonsense application, there should be little difficulty in applying it. Mr Hanks submitted that s.6(5) cannot apply to a deemed allotment, but that is not so. If an allotment is deemed by an instrument of the Minister to have occurred, the issue still remains as to when, for the purposes of s.6(5), that allotment occurred. As the Tribunal failed to consider the application of s.6(5), it erred in law.

4. Mr Hanks submitted that s.6(5) did not apply where a unit and not an individual serviceman was allotted for duty. However, s.6(5) must be read with s.6(1)(e), which encompasses the position where a serviceman was a member of a unit that was allotted for duty in an operational area.

5. Mr Hanks referred to the past history of the legislation and to the reason for the introduction of s.5(12)(b). However, I have not found the examination to be helpful. The past history merely shows that the interpretation of "allotted for duty" enunciated in Doessel's case was not always understood to be its meaning. Doessel's case must now be applied.

6. In the present case, if the decision were mine, I would draw the conclusion that, regardless of whether paragraph (a) or paragraph (b) of s.5(12) applied, HMAS Sydney and its crew had operational service in South Vietnam and that s.6(5) should be given effect by including the voyage to and from South Vietnam within that operational service.

7. However, I am reluctant to make an order allowing Mr Hawkins' claim. The Tribunal is the decision-maker of fact and has not made a finding of fact that HMAS Sydney and its crew were assigned duty in South Vietnam or that Mr Hawkins ischaemic heart disease was causally related to his operational service. In this circumstance, as there were errors of law in the Tribunal's reasoning, I am of the view that the proper order is to set aside the decision of the Tribunal and to remit the matter to the Administrative Appeals Tribunal to be heard and decided again with or without hearing further evidence. The respondent should pay the costs of this appeal.