June Nobes and Repatriation Commission - [2014] AATA 742

[2014] AATA 742

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/5241

Re

June Nobes

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton

Date 14 October 2014

Place Sydney
The decision of the Veterans Review Board made on 19 August 2013 is affirmed.
....................[SGD]....................................................
Senior Member A K Britton
CATCHWORDS
VETERANS’ AFFAIRS — Widows’ pension — Emphysema and ischaemic heart disease — Whether disease was war-caused — Whether disease was defence-caused — Whether there is material that points to a hypothesis — Beneficial legislation — Decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) – ss 13; 70(1); 70(5); 120(4); 120(6); 120A; 120B(3); 196B(14)
CASES
Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
Repatriation Commission v Knight [2012] FCAFC 83; (2012) 202 FCR 451
SECONDARY MATERIALS
Statement of Principles concerning Chronic Bronchitis and Emphysema Instrument No 31 of 2004
Statement of Principles concerning Ischaemic Heart Disease 2004 Instrument No 89 of 2007
Statement of Principles concerning Ischaemic Heart Disease Instrument No 90 of 2007 Statement of Principles concerning Chronic Bronchitis and Emphysema Instrument No 31 of 2014
The Macquarie Dictionary Sixth Edition (October 2013)
Oxford English Dictionary Online ( FOR DECISION
Senior Member A K Britton
14 October 2014

Mr Barry Nobes served in the Royal Australian Navy between 1966 and 1989. His widow, Mrs June Nobes, seeks review of a decision made by the Repatriation Commission and affirmed by the Veterans’ Review Board to refuse her claim for a pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act).
It is agreed that the causes of Mr Nobes’s death include emphysema and ischaemic heart disease. Mrs Nobes’s entitlement to a pension under the Act turns on whether her late husband’s emphysema and ischaemic heart disease were “war-caused” and/or “defence-caused”. To answer that question I must decide whether:
·The available material points to Mr Nobes’s “smoking factor” being “related to” his 17 days of operational service (4 October 1971 to 14 October 1971 and 6 December 1971 to 11 December 1971)
·On the balance of probabilities, Mr Nobes inhaled smoke from the combustion of fossil fuels for a total of at least 5000 hours before the clinical onset of emphysema.
Was Mr Nobes’s ischaemic heart disease and / or emphysema war-caused?
Statutory framework
Where the death of a veteran is “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran (s 13 of the Act).
Whether Mr Nobes’ death was “war-caused” must be assessed by applying the standard of proof set out in s 120 as affected by 120A of the Act. Section 120 provides:
(1)Where a claim under Part II for a pension in respect of the ... death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that…

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 June Nobes and Repatriation Commission

Details

AGLC: June Nobes and Repatriation Commission [2014] AATA 742
Case: [2014] AATA 742
Decision Date: 14 October 2014

CaseChat Overview and Summary

In the case of June Nobes and Repatriation Commission, the primary issue was whether Mr. Nobes's emphysema and ischaemic heart disease were caused or materially contributed to by his military service. The Court had to determine if there was sufficient material to support Mrs. Nobes's hypothesis that Mr. Nobes's operational service on the HMAS SWAN significantly contributed to his increased smoking habit, which in turn led to his medical conditions. The secondary issue was whether Mr. Nobes's conditions were defence-caused under the relevant statutory framework.

The Court examined the available material, which included Mrs. Nobes's testimony and other evidence that Mr. Nobes's smoking habit intensified during and after his service on the HMAS SWAN. Despite acknowledging that there was material indicating Mr. Nobes transitioned from an occasional smoker to a heavy smoker during his service, the Court found that the material did not specifically pinpoint when this change occurred in relation to his operational service. Without a clear temporal connection between the service and the onset of the heavy smoking habit, the Court concluded that the material did not sufficiently establish the asserted relationship. Therefore, the Court ruled that Mr. Nobes's emphysema and ischaemic heart disease were neither war-caused nor defence-caused.

In light of the Court's findings, it was determined that Mrs. Nobes's claim for a widows’ pension based on the alleged war or defence-caused conditions of Mr. Nobes was not substantiated. The Court's reasoning hinged on the necessity for material that not only indicates a correlation between the service and the smoking habit but also establishes a causal link in a manner that satisfies the statutory requirements. The Court's decision was based on the lack of specific evidence regarding the timing of the increased smoking habit in relation to Mr. Nobes's operational service.

Orders

Orders of the court

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Background

Background to the litigation

Mrs Nobes advances the following hypothesis:(a)Mr Nobes’s period at sea on the HMAS SWAN, which included two periods of operational service, was stressful and demanding(b)That stressful experience made a material contribution to him changing from being an occasional to a heavy smoker (at least 20 cigarettes per day)(c)Mr Nobes continued to smoke at those levels for 30 years or so after his return on the HMAS SWAN(d)Mr Nobes smoked at least 20 cigarettes per day for at least 20 years before the clinical onset of ischaemic heart disease in 2009(e)The circumstances of Mr Nobes’s operational service made a material contribution to his sustained increased in smoking.Background to the smoking factor Mr Nobes joined the Royal Navy in 1951. In 1966 he was recruited by the Royal Australian Navy (RAN), apparently because of his significant experience in submarine command. His first posting with the RAN was to oversee the building of, and on completion to sail to Australia, the Oberon class submarine, HMAS OVENS. He arrived in Australia in October 1969. He was joined by his wife and children. Mr Nobes continued to command HMAS OVENS until appointed chief executive officer or second-in-command of the HMAS SWAN, in March 1971. During that appointment, Mr Nobes served under Commander Ian James. Mr Nobes returned to Australia in April 1972. During the period Mr Nobes was at sea (16 October 1971 to 25 April 1972), the HMAS SWAN was deployed on two occasions to escort the HMAS SYDNEY to Vung Tau harbour, Vietnam. The 17 days spent travelling to and from, and being anchored at, Vung Tau, constitutes “operational service” in respect of Mr Nobes (4 October 1971 to 14 October 1971 and 6 December 1971 to 11 December 1971). Mr Nobes started smoking during his period of service with the Royal Navy. The available material contains a number of conflicting accounts about Mr Nobes’s smoking history. In deciding whether the material “points to” the smoking factor being related to Mr Nobes’s operational service I have had regard to all of the available material but for current purposes refer only to that material favourable to the hypothesis advanced by Mrs Nobes. Mrs Nobes testified that up until the time her husband joined the HMAS SWAN, he was an occasional smoker. As she recalled, during the period he served in the Royal Navy her husband frequently gave away his issue of 300 cigarettes per month. She testified that:·the amount her husband smoked remained largely unchanged up until his posting on the HMAS SWAN·on his return to Australia in April 1972, her husband smoked significantly more than he had before he left; he “seemed to be smoking all the time”·he continued to smoke heavily until his 50th birthday in 1985. According to Mrs Nobes, her husband had been apprehensive about his tour of duty in the HMAS SWAN knowing that he would be leaving her to care for their three young children without any support (the Nobes’s extended family resided in the UK). She stated that she learnt from corresponding with her husband while he was at sea and from conversations on his return, that he found his period on the HMAS SWAN to be demanding and stressful. According to Mrs Nobes, her husband found Commander James to be an exceedingly difficult man who, on occasion, was very spiteful and treated him badly in front of the crew.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

While there is no requirement that the “raised facts” or material be proven, nonetheless there must be some material that points to the smoking factor being “related to” Mr Nobes’s operational service. Absent from the available material is any indication of at what point at which during his time at sea in the HMAS SWAN, Mr Nobes increased his level of tobacco consumption and/or developed a heavy smoking habit. On the available material it is possible that one or both occurred prior to, during or after his tour of duty. Absent some material about when that increase commenced and/or Mr Nobes developed a heavy smoking habit, in my opinion the asserted relationship between service and the smoking factor is merely “left open” and is not raised by the material (East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 at 519). Conclusion The available material does not point to the hypothesis advanced by Mrs Nobes. It follows that neither Mr Nobes’s emphysema, nor his ischaemic heart disease, were “war-caused”.Was Mr Nobes’s ischaemic heart disease and/or emphysema defence-caused? Mrs Nobes contends that her husband’s ischaemic heart disease and emphysema were also defence-caused. Mr Nobes’s period of eligible defence service commenced on 7 December 1972 and ended on 6 March 1989.Statutory framework Section 70(1) of the Act provides that where the death of a member of the Forces was defence-caused, the Commonwealth is liable to pay a pension by way of compensation to their dependents. Section 70(5) of the Act provides that the death of a member of the Forces is taken to be defence-caused if: (a)the … arose out of, or was attributable to, any defence service, … of the member; …(d)the injury or disease from which the member died … (iii) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or (iv) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or … Section 120(4) requires the Tribunal to decide matters “to its reasonable satisfaction”. Section 120B(3) states:(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that … 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 … that upholds the contention that the … death of the person is, on the balance of probabilities, connected with that service.Statement of principles

Ratio Decidendi

Legal Principle Established

According to Captain Rothwell, naval records describe the HMAS SWAN’s deployments to Vietnam in November and December 1971 as “uneventful”. He stated that nonetheless the threat of enemy attack was ever present and being anchored at Vung Tau harbour would have been a very “tense time” for all members of the crew. He pointed out that as second-in-command responsibility for Operation Awkward — patrolling for enemy activity while the ship was anchored — probably fell to Mr Nobes. In Captain Rothwell’s opinion, overseeing that operation would have been demanding.Does the material point to the smoking factor being related to Mr Nobes’s operational service? As pointed out by Counsel for Mrs Nobes, Mr Saunders, there is material that points to:·MrNobes leaving Australia on the SWAN as an occasional smoker and returning a heavy smoker, a habit which persisted for over 20years·MrNobes having a difficult and stressful time while at sea·there being a correlation between an increase in the consumption of tobacco by naval officers and periods of stress·MrNobes’s period of operational service being a period of heightened stress There is no issue that there is material that points to the elements of the smoking factor being satisfied. The issue in dispute is whether there is material that also points to Mr Nobes’s sustained increase in tobacco consumption arising out of, or being attributable to, or being contributed to in a material degree by, Mr Nobes’s operational service, or would not have occurred, but for that service. While there is no requirement that the “raised facts” or material be proven, nonetheless there must be some material that points to the smoking factor being “related to” Mr Nobes’s operational service. Absent from the available material is any indication of at what point at which during his time at sea in the HMAS SWAN, Mr Nobes increased his level of tobacco consumption and/or developed a heavy smoking habit. On the available material it is possible that one or both occurred prior to, during or after his tour of duty. Absent some material about when that increase commenced and/or Mr Nobes developed a heavy smoking habit, in my opinion the asserted relationship between service and the smoking factor is merely “left open” and is not raised by the material (East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 at 519). Conclusion The available material does not point to the hypothesis advanced by Mrs Nobes. It follows that neither Mr Nobes’s emphysema, nor his ischaemic heart disease, were “war-caused”.Was Mr Nobes’s ischaemic heart disease and/or emphysema defence-caused? Mrs Nobes contends that her husband’s ischaemic heart disease and emphysema were also defence-caused. Mr Nobes’s period of eligible defence service commenced on 7 December 1972 and ended on 6 March 1989.Statutory framework Section 70(1) of the Act provides that where the death of a member of the Forces was defence-caused, the Commonwealth is liable to pay a pension by way of compensation to their dependents. Section 70(5) of the Act provides that the death of a member of the Forces is taken to be defence-caused if: (a)the … arose out of, or was attributable to, any defence service, … of the member; …(d)the injury or disease from which the member died … (iii) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or (iv) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or …

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5241
Re	June Nobes
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member A K Britton
Date	14 October 2014
Place	Sydney