John Craig and Repatriation Commission

[2015] AATA 400

[2015] AATA 400 

Division	VETERANS’ APPEALS DIVISION
File Number	2014/3675
Re	John Craig
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	5 June 2015
Place	Brisbane

The decision under review is affirmed.

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Deputy President P E Hack SC

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – pleural plaque – interstitial pulmonary fibrosis – asbestosis – whether conditions are war-caused – whether hypothesis is reasonable – whether Statement of Principles upholds hypothesis – evidence does not rise above a possibility – hypothesis not reasonable – conditions not war-caused – decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth), ss 13, 120

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Bey (1997) 79 FCR 364

SECONDARY MATERIALS

Statement of Principles concerning pleural plaque No. 45 of 2014
Statement of Principles concerning fibrosing interstitial lung disease No. 53 of 2013

Statement of Principles concerning asbestosis No. 55 of 2013

REASONS FOR DECISION

Deputy President P E Hack SC

5 June 2015

Introduction

1. Mr John Craig served in the Australian Army between 1968 and 1970. He rendered operational service in Vietnam in 1968 and 1969. Mr Craig now suffers from pleural plaque, interstitial pulmonary fibrosis and asbestosis. Mr Craig contends that those conditions are “war-caused” conditions as that term is used in the Veterans’ Entitlements Act 1986 (Cth). The Repatriation Commission did not accept his claim for an incapacity pension and its decision was affirmed on review by the Veterans’ Review Board.

2. Mr Craig seeks a review of the Commissioner’s decision.

   The Statutory Setting

3. No detailed analysis of the legislation is required. By operation of s 13 of the Act the Commonwealth is liable to pay a pension, by way of compensation, to a veteran incapacitated from a war-caused injury or a war-caused disease. Where a claim for incapacity pension relates to operational service of a veteran the Commission, and the Tribunal in its stead, is required to determine that the condition was war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”.[1]

   [1] See s 120(1), Veterans’ Entitlements Act 1986 (Cth).

4. In the application of that principle the Commission can be satisfied beyond reasonable doubt that a condition was war caused,

   … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the [condition] with the circumstances of the particular service rendered by the person.[2]

   The reasonableness of any hypothesis is to be assessed by Statements of Principles made by the Repatriation Medical Authority. A hypothesis connecting a condition with the circumstances of any particular service rendered by the person is reasonable only if, relevantly, there is a Statement of Principles that upholds the hypothesis.

   [2] See s 120(3), Veterans’ Entitlements Act 1986 (Cth).

5. In Repatriation Commission v Deledio[3] the Full Court explained the decision-making process required by the Act in these terms:

   At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:

   [1] The Tribunal must consider all 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 (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 ss 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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.

   It is now accepted that there is a necessary qualification to paragraph 2 but nothing turns on that in this case.

   [3] (1998) 83 FCR 82, 97-98.

6. Each of Mr Craig’s three conditions is the subject of a Statement of Principles.[4] Pleural plaque is the subject of Statement of Principles concerning pleural plaque No. 45 of 2014. Paragraph 6 lists the factors to be considered in these terms:

   [4]           In the case of Pleural Plaque and Asbestosis there are earlier versions that have been in force during some of    the time since Mr Craig’s claim was lodged however there is no material difference with the current version.

   [6]The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting pleural plaque or death from pleural plaque with the circumstances of a person’s relevant service is:

   (a)inhaling respirable asbestos fibres in an enclosed space:

   (i)      at the time material containing asbestos fibres was being applied, removed, dislodged, cut or drilled; and

   (ii)     the first such inhalation of asbestos fibres occurred at least five years before the clinical onset of pleural plaque; or

   (b)inhaling respirable asbestos fibres for a cumulative period of at least 1 000 hours in an open environment:

   (i)      at the time material containing asbestos fibres was being applied, removed, dislodged, cut or drilled; and

   (ii)     the first such inhalation of asbestos fibres occurred at least five years before the clinical onset of pleural plaque; or

   (c)inability to obtain appropriate clinical management for pleural plaque.

   Statement of Principles concerning fibrosing interstitial lung disease No. 53 of 2013, so far as is presently relevant, lists these factors:

   [6] …

   (b)inhaling respirable asbestos fibres in an enclosed space:

   (i)      for a cumulative period of at least 1 000 hours before the clinical onset of fibrosing interstitial lung disease; and

   (ii)     at the time material containing respirable asbestos fibres was being applied, removed, dislodged, cut or drilled; and

   (iii)    the first inhalation of asbestos fibres commenced at least five years before the clinical onset of fibrosing interstitial lung disease; or

   (c)inhaling respirable asbestos fibres in an open environment:

   (i)      for a cumulative period of at least 3 000 hours before the clinical onset of fibrosing interstitial lung disease; and

   (ii)     at the time material containing respirable asbestos fibres was being applied, removed, dislodged, cut or drilled; and

   (iii)    the first inhalation of asbestos fibres commenced at least five years before the clinical onset of fibrosing interstitial lung disease; …

   Finally, Statement of Principles concerning asbestosis No. 55 of 2013 provides:

   [6] The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting asbestosis or death from asbestosis with the circumstances of a person’s relevant service is:

   (a)inhaling respirable asbestos fibres in an enclosed space:

   (i)      for a cumulative period of at least 1 000 hours before the clinical onset of asbestosis; and

   (ii)     at the time material containing respirable asbestos fibres was being applied, removed, dislodged, cut or drilled; and

   (iii)    the first inhalation of asbestos fibres commenced at least five years before the clinical onset of asbestosis; or

   (b)inhaling respirable asbestos fibres in an open environment:

   (i)      for a cumulative period of at least 3 000 hours before the clinical onset of asbestosis; and

   (ii)     at the time material containing respirable asbestos fibres was being applied, removed, dislodged, cut or drilled; and

   (iii)    the first inhalation of asbestos fibres commenced at least five years before the clinical onset of asbestosis; or

   …

   Factual Evidence

7. There is no dispute regarding the background facts. Mr Craig was conscripted into the Australian Army in February 1968 having graduated from the University of Queensland the previous year with the degree of Bachelor of Engineering (Civil) (with First Class Honours). After basic training he was allotted to the Corps of Royal Australian Engineers and was deemed qualified as a field engineer and later as a Draughtsman Architect. He served in Vietnam between November 1968 and December 1969. Although posted to the 1^st Field Squadron, RAE, at Nui Dat, then Sapper Craig served most of his time in Vung Tau with Detachment 198 Works Section, RAE. Then Sergeant Ian Johnston was his supervisor, at least from April 1969. The task of the Section was to supervise the construction of buildings and infrastructure for the base at Vung Tau.

8. The material includes a photograph of Mr Craig sitting at the desk he worked at during his time in Vietnam. Mr Johnston, who also gave evidence, sat at a nearby desk.

9. Mr Craig was discharged from the Army in February 1970 having completed his two years of prescribed service. Thereafter he pursued his profession as an engineer but was involved generally in strategic policy research rather than construction. In 2012 he was diagnosed with pulmonary fibrosis and pleural plaque. He lodged his claim for disability pension in November 2012. On 2 May 2013 a delegate of the Commission made the decision the subject of these proceedings.

   Consideration

10. I intend no criticism of Mr Craig when I say that the hypothesis he puts forward has altered over time. I regard that as perfectly understandable as Mr Craig has applied his considerable intellectual skills to the tasks of researching his various ailments and the circumstances under which those ailments arose. As he has learned more, he has refined the hypothesis which he advances. It is now put on the footing that he worked in an office (a confined space) in front of a notice board which was made from material that comprised asbestos from which fibres were dislodged when drawing pins were inserted or removed. Additionally, those fibres, once initially dislodged, would again be dislodged by his working at the desk.

11. The first issue is whether the raised hypothesis is reasonable, that is, whether it is consistent with the “template” found in the Statement of Principles. I have come to the conclusion that it is not, on the basis that there is no evidence that the notice board was made from material that comprised asbestos. To explain why I take that view, it is necessary to set out the evidence on the point.

12. The photograph, taken at the time, shows clearly enough that in front of, and above, the desk where Mr Craig worked and adjacent to, and above, the drawing board where he also worked, was a panelled area on which an aerial photograph of the base and a map had been affixed with what appear to be drawing pins or similar. Appreciating, as I do, that I am not presently concerned with fact finding at this juncture, I start with the evidence of Mr Johnston whose recollection was that the panels were made of timber and were 3/8” thick, 1/2” thick at most. They were, on his evidence, not the same as the plywood panelling used to internally line the hut to the height of the window ledge.

13. Mr Craig had a different recollection. He recalled the panel as having a “rough, fibrous texture, not the texture of plywood”. Mr Craig did not profess any recollection of knowing or believing during his time of service that the panel contained asbestos. The hypothesis is based on research and reconstruction, not recollection. The extent of his recollection is set out in his affidavit in these terms:[5]

    [36] The notice board / pin board in question (which was installed prior to 1969) was used for displaying drawings / maps / other working documents at one end of an engineering office.

    [37] For about 11 months in 1969 I worked at a desk that was close to, and faced directly towards, that wall [see Exhibit JDC 1]. I have a quite clear memory that it had a rough fibrous texture similar to that illustrated by Exhibit JDC 2. It was soft enough to make a good notice board / pin board. It was fairly large sheets and covered an entire wall at the end of the office. I can’t reliably say what the colour the wall sheeting was as I am colour blind. I have drawn attention to the rough fibrous nature of this material repeatedly, and also noted my belief that such material was likely to have contained asbestos [eg see DVA T22 Folio 157]. I had initially, and wrongly, presumed that similar material was also used for lining walls elsewhere in Vung Tau.

    [5]           Exhibit 2.

14. Mr Craig’s research was detailed, and undertaken with intellectual rigour. He summarises the results in his affidavit in this way:

    [39]There must be a reasonable doubt about any claim that the notice / board pin board was asbestos-free because:

    (i)      Exhibit JDC 1 shows that the notice board / pin board in front of my desk in the ‘office’ was not plywood – though plywood was supposedly the only wall lining material in use in Vung Tau (except at the Badcoe Club) – see Appendix A: Paragraph 13;

    (ii)     given the photo in Exhibit JDC 1 and the texture that I remember [Exhibit JDC 2], the notice board / pin board could not confidently be declared to be asbestos-free;

    (iii)    asbestos contaminated materials were used at the Badcoe Club. The practice in 1969 of using only asbestos-free materials that Historical Reports documented [Appendix D: Paragraphs 5 and 10] had not always applied. And the ‘office’ was built at about the same time as the Badcoe Club (ie in 1966 when the 1ALSG base was established).

    (iv)     In the course of the Internet scan that is mentioned below, some images of asbestos-contaminated sheeting [Exhibit JDC 10] were identified that look somewhat like the material in the notice board / pin board in Exhibit JDC 1

    [40]An Internet scan was undertaken seeking information concerning internal wall sheeting with a goal of identifying materials that would have had a texture similar to that I recollect while being soft enough to be suitable as a notice board / pin board (See Exhibit JDC 4: ‘Possible Materials in the Notice Board / Pin Board’). The scan addressed:

    (i)      Its reliability in achieving the purpose stated above [JDC 4 Paragraphs 4-6];

    (ii)     The history of the development of ‘dry’ internal wall sheeting [JDC 4 – Paragraph 8];

    (iii)    Asbestos-contaminated materials [JDC 4 – Paragraphs 9-13];

    (iv)     Asbestos-contaminated boards [JDC 4 – Paragraph 14];

    (v)      Millboard [JDC 4 – Paragraphs 15-19];

    (vi)     Uses of millboard [JDC 4 – Paragraph 20];

    (vii)   The US Army’s use of millboard [JDC 4 – Paragraphs 21-23];

    (viii)     Non-asbestos fibrous wall sheeting [JDC 4 – Paragraph 24];

    (ix)     Risks from pinning to soft asbestos-contaminated materials [JDC 4 – Paragraph 25];

    (x)      ‘Friable’ versus ‘bonded’ asbestos-contaminated materials [JDC 4 –Paragraph 25]

    [41]As is clear from the above, my Internet scan paid particular attention to millboard. This was because, as I knew little about asbestos contaminated materials, I sought advice about where to start from two contacts who deal with asbestos contaminated materials. Both were advised of the situation (ie that the material in the notice board / pin board was soft) and shown a photograph of my memory of its texture [Exhibit JDC 2]. One was also sent an image of my desk area [Exhibit JDC 1]. As both suggested informally that the material involved was likely to have been millboard, my scan paid millboard particular (but by no means exclusive) attention.

    [42]     Amongst other things my scan indicated that:

    (i)      There are over 3000 asbestos contaminated materials, most of which are used in construction. It is usually not possible to tell whether a particular material is asbestos contaminated simply by looking at it;

    (ii)     There are several asbestos-contaminated wall sheetings and some of the latter have very high asbestos content and are soft enough to have been used for a notice-board / pin-board (eg millboard, asbestos insulating board / low density board);

    (iii)    Such asbestos-contaminated materials can be particularly dangerous if disturbed because their asbestos content tends to be very high and their binding agent is soft;

    (iv)     There are also fibrous non-asbestos-contaminated wall sheetings;

    (v)      Millboard is a soft material that typically has a (say) 70-80% asbestos content (compared with 10-15% for ‘fibro’);

    (vi)     Millboard was on a list of asbestos-contaminated materials that had been used by the US Army that was developed as part of a 1990s’ clean-up process. It was characterised as 80-85% asbestos in a starch, lime, clay binding material;

    (vii)   There has been union, media and official concern about the dangers of pinning to asbestos-contaminated materials (probably asbestos insulating board) in UK schools;

    (viii)     There has recently also been a great deal of official concern about ‘friable’ asbestos contaminated materials (ie those that can be easily broken). ‘Friable’ materials (as compared with those where the asbestos is firmly ‘bonded’) can release asbestos fibres in normal use (rather than only when subjected to severe disturbance – eg by being applied, removed, dislodged, cut, drilled etc).

    [43]     In relation to millboard in particular it is further noted in passing that:

    (i)      the texture of millboard [Exhibit JDC 11]can be like my memory of the texture of the notice board / pin board in the 198 Works Section office [Exhibit JDC 2];

    (ii)     millboard would be soft enough to make a good notice board / pin board. An image of asbestos millboard in use as a notice board / pin board forms Exhibit JDC 12.

    (iii)    The most dangerous form of asbestos (crocidolite) was sometimes used in millboard until the late 1960s [Exhibit JDC 4 Paragraphs 14(i) and 16(ii)];

    (iv)     millboard has variously been seen to be ‘friable’, ‘easily damaged or abraded’ or ‘easy to break’ [Exhibit JDC 4 – Paragraphs 16(i); 16(vi), 17(i) and 17(ii)].

15. But the difficulty I have with the research is that it falls well short of evidence that this particular notice board comprised asbestos. It demonstrates that in the 1960s, when it might reasonably be inferred the hut was constructed, building material containing asbestos was in fairly common use throughout the world. It demonstrates that some of those materials had a texture similar to, in the sense of being able to be penetrated by a drawing pin, that in Mr Craig’s notice board. But it is not evidence that the notice board was, or might have been, made from asbestos.

1. The legal flaw in Mr Craig’s argument appears in the prefatory words of paragraph 39,

   There must be a reasonable doubt about any claim that the notice/board pin board was asbestos-free…

   The requirement to be satisfied beyond reasonable doubt that there is no sufficient ground to determine a claim favourable does not operate in an evidentiary vacuum. Thus the Commission’s task is to determine whether the whole of the material raises a reasonable hypothesis. It is only a reasonable hypothesis that needs to be considered and excluded. In Repatriation Commission v Bey,[6] Northrop, Sundberg, Marshall and Merkel, JJ said this:

   While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker.

   …

   A “reasonable hypothesis” involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word “reasonable”, is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister’s second reading speech with authority.

   [6] (1997) 79 FCR 364, 372-3.

2. Here the material, including Mr Craig’s evidence of the absence of exposure to asbestos otherwise, does not rise above a possibility. There is no evidence that the notice board contained asbestos or even evidence that it might have. The hypothesis is not reasonable.

3. Against the possibility that conclusion is affected by legal error, I should deal, albeit briefly, with the final question that would have arisen had I concluded the hypothesis was reasonable, whether I was satisfied beyond reasonable doubt that Mr Craig’s conditions were not war-caused. I would have been so satisfied. Mr Johnston’s evidence was particularly helpful in reaching that conclusion. He was, at the time, a qualified carpenter and joiner. He was familiar and experienced with building materials. His failure to recall that the office building was lined in part does not deter me from regarding his evidence as reliable. His recollection was that the panel was timber. He did not accept that it resembled any of the samples put forward by Mr Craig as possible materials used. I am satisfied to the requisite standard that the panel was made of timber. That being so, I would have been satisfied beyond reasonable doubt that Mr Craig’s conditions were not war-caused.

4. The decision under review will be affirmed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 5 June 2015

Date of hearing	27 May 2015
Applicant	In person
Advocate for the Respondent	Bruce Williams