John Geletic and Repatriation Commission
[2013] AATA 406
[2013] AATA 406
Division Veterans' Appeals Division File Number
2012/3810
Re
John Geletic
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Brigadier A G Warner, MemberDate 18 June 2013 Place Perth The decision under review is set aside and, in substitution therefor, it is decided that pleural plaque, contracted by the applicant in 2010, is a "defence-caused disease" pursuant to s 70(5)(a) of the Veterans' Entitlements Act 1986 (Cth).
............................[Sgd]............................................
S D Hotop, Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant rendered defence service in Royal Australian Air Force from 1975 to 1995 – applicant required to reside in married quarters on base – married quarters constructed of asbestos materials – applicant carried out necessary repairs – applicant exposed to asbestos fibres – applicant contracted pleural plaque in 2010 – Statement of Principles concerning pleural plaque (SoP) – SoP upholds contention that applicant's pleural plaque on balance of probabilities connected with defence service – applicant's pleural plaque arose out of or was attributable to defence service – applicant’s pleural plaque a defence-caused disease – decision under review set aside
LEGISLATION
Veterans' Entitlements Act 1986 (Cth), s 5D(1), s 68 (1), s 70(5), s 120(4), s 120B(3), s 196B(3) and s 196B(14)
Statement of Principles concerning pleural plaque (Instrument No 52 of 2003)
CASES
Holthouse v Repatriation Commission [1982] FCA 113
Re Repatriation Commission and Wicking (1987) 7 AAR 289
Roncevich v Repatriation Commission (2005) 222 CLR 115REASONS FOR DECISION
Deputy President S D Hotop
Brigadier A G Warner, Member18 June 2013
Introduction
John Geletic (“the applicant”), who was born in June 1956, served in the Royal Australian Air Force (“RAAF”) from 1 April 1975 to 3 April 1995.
On 10 August 2011 the applicant made a claim under the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”) for acceptance of a condition described as “pleural plaques” as defence-caused.
On 18 October 2011 a delegate of the Repatriation Commission (“the respondent”) decided that “pleural plaque is not related to service”.
On 28 May 2012 the Veterans’ Review Board (“VRB”) determined that pleural plaque is not defence-caused and, accordingly, affirmed the delegate’s decision of 18 October 2011.
On 31 August 2011 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 28 May 2012.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T16, pp I–XII, 1–85) lodged by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·statement of the applicant, dated 21 March 2013 (Exhibit A1);
·letter from Ian Robertson, dated 22 March 2013 (Exhibit A2);
·statement from Frank Middleton, dated 26 March 2013 (Exhibit A3);
·letters from Dr Peter Bremner, dated 26 June 2010, 12 July 2010, 12 August 2010, and 30 October 2012 (Exhibit R1); and
·the oral evidence of the applicant.
The Applicant’s Evidence
The applicant tendered in evidence his statement, dated 21 March 2013, and he confirmed that its contents are true and correct.
The applicant’s statement is as follows:
“ …
2.I joined the Royal Australian Air Force (RAAF) in April 1975 as an 18 year old.
3.I served mainly as a steward in the RAAF from 1 April 1975 to 3 April 1993 [sic] completing 20 years of defence service.
Pearce
4.Between 1975 and 1977 I was stationed at RAAF base Pearce.
5.While at Pearce my wife and I resided in married quarters that I understood to be provided by RAAF.
6.I was not given a choice of housing and was required to take up the married quarters that were allocated.
7.The married quarters that I was allocated were an asbestos house on the base and facing Great Northern Highway.
8.My recollection is that all of the married quarters on base were essentially the same 3 bedroom one bathroom asbestos houses. My recollection is that there were six married quarters on base at that time.
9.My recollection is that the internal and external walls were asbestos panels and the roof was asbestos.
10.No warnings were ever given about the dangers of asbestos or warning me not to be exposed to the asbestos fibres, or even that the houses were made of asbestos.
11.Once allocated the married quarters, I was entirely responsible for maintenance and repair while residing there.
12.The married quarters did not have any window treatments and like all others who were allocated married quarters, I installed all the fittings to install curtains and blinds which required me to drill into the asbestos walls and insert plugs to take the screws. I also drilled into the asbestos walls to put in picture hooks to hang photos etc.
13.The asbestos was hard and very brittle and I was exposed to asbestos fibres.
14.During my time at Pearce I carried out various repairs in the house.
15.The house did not have any door stops and so the door handles would often put holes in the walls.
16.I repaired these holes by filling the holes with plaster and sanding the panel before painting the repaired area.
17.I also repaired the wall in the toilet which had cracked and pushed inwards. I used a hand saw to widen the crack.
18.I placed an ice-cream lid connected to a piece of string behind the crack to pull the wall level so it could be filled with plaster. The wall was then sanded and painted. I was exposed to asbestos fibres while conducting these repairs.
19.I also repaired the wall next to the hand basin in the bathroom using the same method.
20.I was responsible for all the maintenance on the house and so I also replaced tap washers and torn fly screens.
21.While residing in the married quarters at Pearce dust in the house was a constant problem.
22.Being so close to Great Northern Highway the vibration from the passing trucks caused dust to fall down from the ceiling. My wife would need to dust the house three or four times a week.
23.Low flying aircraft would also cause the dust to fall.
24.Often there would be dust on our beds.
25.The dust often resembled fine cobwebs.
26.I do not know what the dust was but believe that it was likely to be contaminated by asbestos.
27.On vacating the married quarters they had to be returned to their original condition.
28.I had to remove all the window fittings, picture hooks and repair any damage to the house.
29.The house had to be thoroughly cleaned and put into inspection order.
30.To put the house into inspection order I was given three days (the ‘Pre Inspection Period’) to pre pack our belongings, remove them, repair any damage, and clean the house ready for inspection.
31.During the Pre Inspection Period I was on duty and attended to the repairs that were necessary. The repairs were conducted both inside and outside the house and I was exposed to asbestos fibres through drilling, sawing and sanding the asbestos panels of the house.
32.At that time everyone would do the repairs themselves. I was not aware of any businesses that would do that sort of work until I heard that a business set up in the 1980’s to clean Defence Houses, but I wasn’t aware of any such business during my service.
33.In any event we were only paid very little back then and there was no spare money to pay anyone to do that sort of work.
34.If you didn’t do it yourself, and the inspection required work to be done, it was very expensive.
35.I recall that after I left Pearce I was charged about $18.00 each for two flyscreens that had holes in them that were bigger [sic] than a match head but which I hadn’t noticed. I am not sure of the exact amount that was charged.
Townsville
36.In 1977 I was posted to base Squadron Townsville and was allocated married quarters in Garbutt.
37.The house was two storey and weatherboard on the bottom and asbestos on the top. During my time there the Defence Force put in a new kitchen and installed venetian blinds.
38.I put up curtains, installed picture hooks, repaired holes and cracks caused by the door handles, children playing and so on.
39.In 1981 I was posted back to Pearce, and was required to restore the house to its original condition, which again required all fittings to be removed and repairs conducted.
40.During the three day Pre Inspection Period I conducted these repairs both inside and outside the house and I was exposed to asbestos fibres through drilling, sawing and sanding the asbestos walls.
Pearce
41.In 1981 I returned to Pearce and was allocated married quarters in North Avenue. This house was brick veneer, but had asbestos in the eaves and in the wood fired hot water system which had to be lit every day.
42.As our children got older, they tended to cause more minor incidental damage around the house.
43.On vacating the married quarters in 1983 the same procedure had to be followed as in previous married quarters.
44.All window fittings had to be removed, all nails and hooks, all holes and cracks had to be repaired.
45.The house had to be thoroughly cleaned, including the windows and roof, and left in inspection order.
46.I conducted the repairs both inside and outside the house and primarily carried out during the Pre Inspection Period [sic].
Butterworth
47.In 1983 I was posted to RAAF air base Butterworth.
48.At Butterworth I was allocated temporary married quarters in Vale of Tempe Penang, before moving to a brick/concrete house at Robina Park which was close to the base.
49.I do not believe that I was exposed to asbestos fibres during this period, however, on vacating the house the same procedure was involved as with other married quarters which required the removal of all fittings and repair of all damage, cleaning inside and out, including the roof so that the house was left in inspection order.
50.I did most of this work during the three day Pre Inspection Period.
Glenbrook
51.In 1987 I was posted to RAAF base Glenbrook …
52.I was again allocated married quarters.
53.The house was brick and I do not believe that I was exposed to asbestos fibres during the time I was at Glenbrook.
54.On vacating the house, however, the same procedure was involved as with other married quarters which required the removal of all fittings and repair of all damage, cleaning inside and out, including the roof so that the house was left in inspection order.
55.I did most of this work during the three day Pre Inspection Period.
Wagga
56.In 1988 I was posted to Base Squadron Wagga where I was allocated married quarters in Ashmont.
57.The house was asbestos and did not have any window treatments and like all others who were allocated married quarters, I installed all the fittings to install curtains and blinds which required me to drill into the asbestos walls and insert plugs to take the screws. I also drilled into the asbestos walls to put in picture hooks to hang photos etc.
58.I resided in the house until 1990 and during the time I was there carried out repairs to the house which exposed me to asbestos fibres.
59.Again holes were made in the interior walls by the door handles and I repaired them by plastering and sanding the asbestos wall panels.
60.On one occasion I repaired an asbestos panel at the rear of the house which had been damaged by a cricket ball. I used a saw and electric grinder to open up the crack.
61.I placed a board with a piece of string attached behind the crack and pulled the wall level so I could plaster the crack, after which it was sanded and painted.
62.I recall that when I used the grinder I got a mouth full of dust which I spat out and washed my mouth out with water.
63.On another occasion I repaired a large crack in the asbestos wall alongside the driveway using the same method referred to in paragraphs 61 and 62 above. I am not sure how that damage was caused as my children would not admit to causing it.
64.I frequently repaired cracks and holes in the walls of my children’s bedrooms.
65.In 1991 I was offered married quarters on the base.
66.On vacating the house, the same procedure was involved as with other married quarters which required the removal of all fittings and repair of all damage, cleaning inside and out, including the roof so that the house was left in inspection order.
67.I did most of this work during the three day Pre Inspection Period.
Pearce
68.In 1992 I was posted to Pearce.
69.Married quarters were not available and so I rented a house in Wanneroo. We were given rental assistance until married quarters became available in 1993.
70.In 1994 I vacated the married quarters because my wife and I purchased a house.
71On vacating the married quarters, the same procedure was involved as with other married quarters which required the removal of all fittings and repair of all damage, cleaning inside and out, including the roof so that the house was left in inspection order.
72.I did most of this work during the three day Pre Inspection Period.
Summary
73.During the course of my service I was exposed to asbestos fibres when conducting installing fittings to the asbestos houses that I resided in and when conducting repairs to the asbestos panels.
74.During the various Pre Inspection Periods I was on duty while conducting the repairs.
75.It was a requirement that the houses be left in inspection order and I do not know anyone who would pay to have the repairs done by contractors.
76.We were not paid enough to be able to afford outside help.
77.The married quarters had to be made suitable to live in by installing curtains, blinds and other home comforts as these were not provided by Defence Housing.
78.The repairs were all minor in nature and never [sic] considered having anyone else do them.
79.I did not know about the dangers that conducting the repairs posed and so I did not have any reason not to undertake the repairs.
80.The reason that I conducted the repairs is because it was a requirement to put the house in inspection order.
81.I am not aware of any other time where I have been exposed to asbestos fibres.
82.I originally believed that I had been exposed to asbestos fibres when I was a child and helped my brother cut up asbestos sheets.
83.I now know that those sheets were not asbestos but hardi-board and they did not contain asbestos.” (Exhibit A1)
The applicant also gave oral evidence as follows:
·in the “Pre Inspection Period” referred to in para 30 (and subsequent paragraphs) of his statement, he was “on duty” and, if an emergency occurred at the Base, he could have been called back to Base;
·the house inspections were normally conducted by a warrant officer or a civilian employed by Defence for that purpose;
·it was the expectation of Defence that he would get the house ready for inspection;
·if, upon inspection, it was found that the house was not ready for handover, he would be charged for any necessary repairs;
·during occupancy of a Defence house, it was normal practice for airmen to do minor repairs themselves;
·it had never been suggested to him that it was not appropriate for him to do such repairs;
·an airman who left a house in a serious state of disrepair could suffer disciplinary action for “conduct unbecoming an airman”.
Additional Evidence Tendered by the Applicant
The applicant also tendered in evidence a letter from Ian Robertson, dated 22 March 2013 (Exhibit A2), and a statement from Frank Middleton, dated 26 March 2013 (Exhibit A3). It is unnecessary, however, to set out their contents in these reasons.
The Tribunal notes that neither Mr Robertson nor Mr Middleton was required by the respondent for cross-examination, and neither of them gave oral evidence.
Medical Evidence tendered by the Respondent
The respondent tendered in evidence four letters from Dr Peter Bremner, Respiratory Physician, dated 26 June 2010, 12 July 2010, 12 August 2010, and 30 October 2012 (Exhibit R1).
Dr Bremner’s letter of 26 June 2010, which is addressed to Dr A Moffson, the applicant’s general practitioner, states as follows:
“Thanks for asking me to see this very anxious 54-year old man with a left pleural abnormality. I am concerned about the nature of the underlying abnormality and although he may have had a recent pneumonia, there was a pre-existing pleural thickening. I have arranged for his admission for a biopsy. I will keep you informed.
He was a smoker of up to 50 cigarettes a day until he quit five years ago. He worked with asbestos as a young boy helping his brother cut asbestos sheets. His brother died of mesothelioma last year. He spent twenty years in the Air Force in catering but has had no other occupational exposures. Following his brother’s death he asked his GP for a chest x-ray because he was concerned about having asbestos related lung disease. This film was reported as normal but clearly it is not with some left basal pleural thickening.
Three weeks ago he developed left sided chest discomfort while cutting wood. The next day he developed flu-like symptoms with some fevers, breathlessness and cough but no sputum. He was given antibiotics with some improvement. The left sided chest discomfort persists.
He is on no regular medication. He has just completed some klacid.
On examination today he was overweight without finger clubbing or lymphadenopathy. Breath sounds were reduced at the left base. His x-ray from last year shows pleural thickening which has progressed. Although the current x-ray and CT would be consistent with a pneumonic illness the differential diagnosis includes malignancy. There is some lobulated pleural thickening and certainly mesothelioma is possible.
…”
In his letter of 12 July 2010 to Dr Moffson, Dr Bremner stated that the applicant’s “pleural biopsy has revealed benign material only”.
In his letter of 30 October 2012 to the Department of Veterans’ Affairs, Dr Bremner “confirm[ed] that pleural plaques are benign” and added:
“The development of asbestos related lung disease, such as pleural plaques, usually occurs a long time following exposure to asbestos.”
The Relevant Legislation
The VE Act
Section 70 of the VE Act, which deals with eligibility for a pension under Part IV of that Act, relevantly provides:
“ …
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…”
The terms “disease” and “injury” are defined in s 5D(1) of the VE Act as follows:
“ disease means
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”
“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
The phrase “defence service” is relevantly defined in s 68(1) of the VE Act to mean:
“service, except peacekeeping service, of any of the following kinds:
(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date;
…”
Section 68(1) also relevantly provides:
“ terminating date means the date on which the Military Compensation Act 1994 commences.
Note: The Military Compensation Act 1994 commenced on 7 April 1994.”
Section 120 of the VE Act, which prescribes the standard of proof to be applied in making determinations in respect of pensions under that Act, relevantly provides:
“ …
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
Section 120B of the VE Act relevantly provides:
“ …
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…”
Section 196A of the VE Act establishes the Repatriation Medical Authority (“the Authority”) and s 196B(1) provides that the “main function of the Authority is to determine Statements of Principles for the purposes of the Act …”. Section 196B(3) provides:
“(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).”
Section 196B(14) of the VE Act relevantly provides:
“(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…”
The Statement of Principles
Pursuant to s 196B(3) of the VE Act, the Authority has determined a Statement of Principles concerning pleural plaque (Instrument No 52 of 2003) (“the SoP”).
The SoP relevantly states as follows:
“…
Basis for determining the factors
3.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that pleural plaque and death from pleural plaque can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, pleural plaque or death from pleural plaque is connected with the circumstances of a person’s relevant service are:
(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 10 years before the clinical onset of pleural plaque; or
…
Other definitions
8. For the purposes of this Statement of Principles:
…
‘relevant service’ means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
…”
The Issue
It is common ground, and the Tribunal finds on the basis of the medical evidence before it, that the applicant suffers from pleural plaque.
The sole issue for the Tribunal’s determination is whether the applicant’s pleural plaque is a defence-caused injury or a defence-caused disease, for the purposes of Part IV of the VE Act.
Analysis
It is common ground, and the Tribunal finds, that:
·the “clinical onset” of the applicant’s pleural plaque, within the meaning of para (a) of clause 5 of the SoP, occurred in 2010;
·the entire period of the applicant’s RAAF service from 1 April 1975 to 3 April 1995 constitutes “defence service” within the meaning of s 70(5) of the VE Act and “relevant service” within the meaning of the SoP.
The Tribunal also finds that the applicant’s pleural plaque is a “disease”, not an “injury”, as defined in s 5D(1) of the VE Act.
Pursuant to ss 120(4) and 120B(3) of the VE Act, the Tribunal will be reasonably satisfied that the applicant’s pleural plaque is a defence-caused disease only if:
·the material before the Tribunal “raises a connection between” that disease and the applicant’s RAAF service; and
·the SoP “upholds the contention that [that] … disease … is, on the balance of probabilities, connected with” his RAAF service.
The only factor in clause 5 of the SoP on which the applicant sought to rely was the factor set out in para (a). Pursuant to para (a) of clause 5 of the SoP, the factor that must exist before it can be said that, on the balance of probabilities, the applicant’s pleural plaque is connected with the circumstances of his RAAF service is:
“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 10 years before the clinical onset of pleural plaque”.
Furthermore, pursuant to clause 4 of the SoP, the factor set out in para (a) of clause 5 “must be related to any relevant service rendered by the [applicant]”, namely, his RAAF “defence service” from 1 April 1975 to 3 April 1995.
The respondent conceded that the factor set out in para (a) of clause 5 of the SoP is met in this case. Having regard to the applicant’s evidence (none of which was disputed by the respondent), and to the medical evidence indicating that the clinical onset of pleural plaque was in 2010, the Tribunal regards that concession as appropriate.
Accordingly, the critical matter for the Tribunal’s determination is whether the applicant’s inhalation of respirable asbestos, in the circumstances referred to in para (a) of clause 5 of the SoP, was “related to” his RAAF service, as required by clause 4 of the SoP.
Section 196B(14) of the VE Act relevantly provides that a “factor” is “related to service rendered by a person” if it “arose out of, or was attributable to, that service” (para (b)).
In Roncevich v Repatriation Commission (2005) 222 CLR 115, the High Court of Australia considered the interpretation of the phrase “arose out of, or was attributable to, any defence service” in s70(5)(a) of the VE Act. McHugh, Gummow, Callinan and Heydon JJ said (at 126):
“ The use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate …” (citations omitted)
Earlier (at 125) their Honours, citing Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 (per Dixon J at 294), had said:
“… whether an event arises in the course of an activity, or as here, out of ‘an activity’ [sic], depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. …” (original emphasis)
The appropriate enquiry for the purposes of s 70(5)(a) of the VE Act, it was held, is not whether the relevant injury or disease “arose out of, or was attributable to,” a particular activity or task that a member of the Forces was obliged or required to do as such a member, but rather the broader enquiry whether the relevant injury or disease “arose out of, or was attributable to, any defence service” of the member.
On the basis of the applicant’s evidence (see paragraphs 8–9 above) – none of which, as previously noted, was disputed by the respondent – the Tribunal makes the following findings:
·when stationed at RAAF Base Pearce between 1975 and 1977, the applicant was allocated married quarters on the Base and he was required by the RAAF to, and did, reside in those married quarters;
·those married quarters comprised a house which was constructed of materials containing asbestos;
·while residing in those married quarters he was personally responsible for maintenance and repairs thereto;
·those married quarters did not have any window treatments and he installed blinds and curtains which involved his drilling into asbestos walls and thereby being exposed to asbestos fibres;
·while residing in those married quarters he carried out various repairs, including repairs to a wall in the toilet and a wall in the bathroom which involved his being exposed to asbestos fibres;
·prior to vacating those married quarters, he was required by the RAAF to put them into inspection order and was allowed a pre-inspection period of 3 days (during which he remained on duty) in which to do so;
·during the relevant pre-inspection period, he carried out various repairs to those married quarters which included drilling, sawing and sanding asbestos panels and he was thereby exposed to asbestos fibres;
·the inspection of those married quarters was conducted either by Defence personnel or by civilian personnel employed by Defence for that purpose;
·in the period 1988-1990 when he was stationed at RAAF Base Wagga and resided in married quarters in Ashmont which had been allocated to him and which comprised a house which was constructed of materials containing asbestos, he carried out the installation and repairs as described in paras 57–64, 66 of his statement (Exhibit A1, set out in paragraph 8 above) and was thereby exposed to asbestos fibres.
The respondent cited Holthouse v Repatriation Commission [1982] FCA 113 in which Davies J noted the “distinction between matters which are of a purely personal or private nature and matters which have a connection with employment”, and referred to Wedderspoon v Minister of Pensions [1947] 1 KB 562 in which Denning J said (at 563–564):
“ The cases show that when the cause of death or disablement lies in the man’s own personal or domestic sphere, and the war service does no more than provide the circumstances in which the cause operated, it is not attributable to war service.”
In Holthouse a naval officer suffered incapacity from a back injury caused by his moving a heavy potted palm at his house in anticipation of his letting that house to a tenant and his moving into accommodation provided to him on a naval base to which he had been posted. It was held that that incapacity had not arisen out of, nor was attributable to, his defence service because the cause of that incapacity, namely, the moving of the potted palm, was a matter which lay entirely within the sphere of his personal life and which was of no concern to the Defence Force.
In the Tribunal’s opinion, however, the activities carried out by the applicant by way of window fittings and general repairs of, in particular, the married quarters on RAAF Base Pearce in which he was required by the RAAF to reside, and did reside, in the period 1975-1977, whereby he (it is common ground) inhaled respirable asbestos fibres in enclosed spaces, cannot reasonably be regarded as activities “of a purely personal or private nature” unconnected with his RAAF service. The Tribunal has formed this opinion on the basis of its findings set out in paragraph 34 above and on the following additional findings made by it on the basis of the applicant’s evidence:
·given the absence of any window treatments in those married quarters, it was reasonable, and must have been within the reasonable contemplation or expectation of the RAAF, for the applicant to carry out the necessary activities for the installation of curtains and blinds referred to in paragraph 34 above;
·the activities carried out by the applicant by way of repairs of those married quarters referred to in paragraph 34 above were reasonable and appropriate, and must have been within the reasonable contemplation or expectation of the RAAF.
In the Tribunal’s opinion the present case is more analogous to Re Repatriation Commission and Wicking (1987) 7 AAR 289 in which a shoulder injury, sustained by a member of the RAAF when he slipped on the bathroom floor in service quarters on a RAAF base in which he was required to reside, was held to be defence-caused. The Tribunal said (at 293–294):
“ Before considering the provisions of s 70(5) … it is necessary to consider the meaning of the expression ‘defence service’, which for present purposes is defined in s 68 of the VE Act as meaning:
‘(a)continuous full time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date.’
So defined, ‘defence service’ is apt to describe the overall service in which the member is or was engaged. It is not however, as is the word ‘employment’, apt to describe the nature of the service in question or to state what are its incidents. The service of a member of the Defence Force is continuous and full time notwithstanding that he is not on duty 24 hours a day. …
Looking first at s 70(5)(a), we are of the opinion that under that heading of liability alone the respondent’s claim should be allowed. The respondent’s accommodation was service accommodation at RAAF Bankstown. He was required to live there rather than at the ‘off-base’ accommodation which he had procured at HMAS Kuttabul, the reason given being that he could be required to travel at short notice with other members living there, to anywhere in New South Wales as directed. It seems to us that in the absence of some requirement in the legislation that the incapacity be tied to some incident of the employment, or to the general nature of the employment, neither of which is, for reasons explained above, the case, it is not possible to deny to a member who is living in service quarters on a base or the equivalent thereof, the attribution to his defence service of the death, injury or disease in question, or that the death etc arose therefrom. …”
Having regard to the abovementioned considerations and to the principles expounded in Roncevich (above), the Tribunal is satisfied that the factor set out in para (a) of clause 5 of the SoP is, pursuant to s 196B(14)(b) of the VE Act, “related to” the “defence service” rendered by the applicant, within the meaning of clause 4 of the SoP. Accordingly, clause 4 of the SoP is also met in the applicant’s case.
In terms of s 120B(3) of the VE Act, the Tribunal is satisfied that:
·the material before it “raises a connection between” the applicant’s pleural plaque and his RAAF “defence service”; and
·the SoP “upholds the contention that [the applicant’s pleural plaque] is, on the balance of probabilities, connected with” his RAAF “defence service”.
Pursuant to ss 120(4) and 120B(3) of the VE Act, therefore, the Tribunal is reasonably satisfied that the applicant’s pleural plaque is a defence-caused disease.
Conclusion
The Tribunal concludes that pleural plaque, which was contracted by the applicant in 2010, “arose out of, or was attributable to,” the RAAF service (being “defence service” within the meaning of Part IV of the VE Act) rendered by him and is, accordingly, a “defence-caused disease” pursuant to s 70(5)(a) of the VE Act.
Decision
For the above reasons, the decision under review is set aside and, in substitution therefor, it is decided that pleural plaque, contracted by the applicant in 2010, is a “defence-caused disease” pursuant to s70(5)(a) of the VE Act.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Brigadier A G Warner, Member.
................[Sgd B Mitchell]....................................
Administrative Assistant
Dated 18 June 2013
Date of hearing
27 May 2013
Representative of the Applicant
Mr R Grayden
Solicitors for the Applicant
Robert Grayden Legal
Representative of the Respondent
Mr C Ponnuthurai
Compensation and Review Branch
Department of Veterans’ Affairs
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