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

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.
Mr Craig seeks a review of the Commissioner’s decision.
The Statutory Setting
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).
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).
In Repatriation Commission v Deledio[3] the Full Court explained the decision-making process required by the Act in these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading John Craig and Repatriation Commission

Details

AGLC: John Craig and Repatriation Commission [2015] AATA 400
Case: [2015] AATA 400
Decision Date: 5 June 2015

CaseChat Overview and Summary

John Craig brought an appeal against the Repatriation Commission, challenging the Commission's decision to deny him a disability pension. Craig, who served in the Army until February 1970, later worked as an engineer in strategic policy research. In 2012, he was diagnosed with pulmonary fibrosis and pleural plaque, and he lodged his claim for a disability pension in November 2012. The Commission's delegate decided against his claim on 2 May 2013, a decision Craig now contests. The primary issue before the court was whether Craig's hypothesis regarding the cause of his conditions was reasonable and consistent with the Statement of Principles. Craig posited that his conditions stemmed from exposure to asbestos fibers dislodged from a notice board made of asbestos material when drawing pins were inserted or removed, and further dislodged by his working at his desk.

The court had to determine if Craig's hypothesis was reasonable, which required assessing whether it was consistent with the template outlined in the Statement of Principles. The court examined the evidence provided, including photographic evidence from the time of Craig's service and witness testimonies. Notably, Mr. Johnston, who worked with Craig, testified that the panels were made of timber and were 3/8” thick, at most 1/2” thick. Craig, on the other hand, recalled the panel having a rough, fibrous texture, unlike plywood. Despite Craig's belief that the material likely contained asbestos, there was no concrete evidence to support this. The court concluded that Craig's hypothesis was not reasonable because it was not substantiated by evidence showing that the notice board was made of asbestos material.

The court found that Craig's hypothesis did not align with the evidence, particularly the lack of proof that the notice board was made of asbestos. Given this, the court upheld the Commission's decision to deny Craig a disability pension. The court's reasoning focused on the absence of credible evidence supporting Craig's hypothesis, thereby affirming the decision under review. Consequently, Craig's appeal was dismissed, and the Commission's decision was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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.

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

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