Knight and Repatriation Commission
[2011] AATA 496
•19 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 496
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5801
GENERAL ADMINISTRATIVE DIVISION ) Re Jacqueline Knight Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Air Vice-Marshal (Dr) T K Austin AM, Member
Date19 July 2011
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Knight’s death was war-caused and Mrs Knight is granted a widow’s pension from 5 September 2006.
....................[sgd]......................
Mr R P Handley
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS - Entitlement to widow’s pension ‑ veteran's death from myocardial infarction - operational service – defence service - ischaemic heart disease - exposure to environmental tobacco smoke during operational service - application of Statement of Principles ("SoP") – material pointing to reasonable hypothesis that veteran's death war-caused – exposure to visible tobacco smoke haze contributed to a material degree to the veteran’s death - decision under review set aside
RELEVANT ACTS
Veterans’ Entitlement Act 1986 (Cth): ss 13, 120, 196B
Safety, Rehabilitation and Compensation Act 1988 (Cth): s 4
CITATIONS
Re Knight and Repatriation Commission [2009] AATA 929
Knight v Repatriation Commission (2010) 52 AAR 547; [2010] FCA 1134
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Gilkinson v Repatriation Commission (2010) 118 ALD 547; [2010] FCA 1292
Comcare v Sahu-Khan (2007) 156 FCR 536; (2007) 44 AAR 523; [2007] FCA 15
OTHER AUTHORITIES
Statement of Principles Concerning Ischaemic Heart Disease No 89 of 2007 dated 19 June 2009
Statement of Principles Concerning Ischaemic Heart Disease No 90 of 2007 dated 5 September 2007
Amendment Statement of Principles Concerning Ischaemic Heart Disease No 43 of 2009 dated 19 June 2009
Amendment Statement of Principles Concerning Ischaemic Heart Disease No 96 of 2010 dated 27 October 2010
Amendment Statement of Principles Concerning Ischaemic Heart Disease No 44 of 2009 dated 19 June 2009
Amendment Statement of Principles Concerning Ischaemic Heart Disease No 97 of 2010 dated 27 October 2010
REASONS FOR DECISION
19 July 2011 Mr R P Handley, Deputy President
Air Vice-Marshal (Dr) T K Austin AM, Member1. Following a successful appeal in the Federal Court from the decision of the Tribunal in ReKnight and Repatriation Commission [2009] AATA 929, on 22 October 2010, Katzmann J ordered that the decision of the Tribunal dated 18 November 2009 be set aside and remitted to the Tribunal to be determined according to law: Knight v Repatriation Commission [2010] FCA 1134.
2. The subject of the proceedings is Mrs Knight’s application for the review of a decision of the Veterans’ Review Board (VRB) affirming a decision of the Repatriation Commission to refuse her claim for a war widow’s pension under the Veterans’ Entitlement Act 1986 (the Act) following the death of her husband, Keith Knight.
BACKGROUND
3. Mr Knight, who was born in March 1947, served in the Royal Australian Navy from 7 January 1963 to 18 January 1974. This included the following periods of operational service totalling 194 days: in the Far East from 17 August 1964 to 5 October 1964, 16 October 1964 to 15 December 1964, and 5 January 1965 to 10 February 1965; and in Vietnam from 31 May 1965 to 22 June 1965, 8 to 22 April 1967, and 18 to 25 November 1968. Mr Knight’s service also included eligible defence service from 7 December 1972 to 18 January 1974.
4. After leaving the Navy, Mr Knight was employed in the Department of Defence until 1987, when he retrained and then worked as a bricklayer until his death on 9 July 1998 at the age of 51. The cause of Mr Knight’s death stated on the Coroner’s Certificate was myocardial infarction.
5. Mrs Knight states that her husband was a non-smoker. The Commission accepts that during both his operational service and defence service he was exposed to environmental tobacco smoke while working in enclosed spaces. Moreover, it appears Mr Knight continued to be exposed to environmental tobacco smoke during the time he was employed in the Department of Defence and that this was a reason for his ceasing work in the Department in 1987. In 1988, Mr Knight was awarded workers’ compensation by the Commissioner for Employees’ Compensation for “an aggravation of a disease, namely reactive diathesis due to cigarette smoke”.
6. On 7 September 1998, Mrs Knight lodged a claim for a widow’s pension. On 10 September 1999, the Commission decided that Mr Knight’s death was not related to service. On 5 December 2006, Mrs Knight reapplied and, on 18 December 2006, the Commission again refused her application. This decision was affirmed by the VRB on 10 September 2007 and, on 28 November 2007, Mrs Knight applied to the Tribunal for a further review.
7. On 18 November 2009, the Tribunal affirmed the decision under review on the ground that “there is neither a reasonable hypothesis linking the deceased’s ischaemic heart disease to operational service nor is there a SoP that satisfies us that the death of the deceased is connected with his defence service”. As stated above, on an appeal to the Federal Court the Tribunal’s decision was set aside on the ground that the Tribunal made errors of law in its decision.
8. First, Justice Katzmann found that the Tribunal had made an error of law by making factual findings when considering whether a reasonable hypothesis was raised connecting the death of the veteran with the circumstances of his service. In so doing, the Tribunal was making findings at the third stage of the decision-making process prescribed by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio), at 97-98. At this third stage, the role of the Tribunal is to determine whether the material before it points to some fact or facts which support the hypothesis. It is only at the fourth stage that fact-finding is to occur.
9. Secondly, Justice Katzmann found that the Tribunal made an error of law by misconstruing the relevant Statement of Principles (SoP) concerning ischaemic heart disease, No 89 of 2007 (SoP No 89). In particular, the Tribunal had considered the meaning of the factor relied on in this case to establish that a reasonable hypothesis has been raised, factor 6(i). Paragraph 6 states relevantly:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service is:
…
(i) being in an atmosphere with a visible smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease, where the last exposure to that atmosphere did not occur more than five years before the clinical onset of ischaemic heart disease; …
10. The Tribunal found that the exposure to the relevant atmosphere had to “relate to exposure whilst on service”. Justice Katzmann noted that, effectively, this meant that the last exposure had to have occurred during service. Her Honour said that the Tribunal had thereby misconstrued the SoP. She said, at [58], that the SoP:
… sets out factors that the Repatriation Medical Authority recognises as potential causes of ischaemic heart disease. In other words, it sets out factors that can be connected with service. Whether or not a factor is connected with the relevant service is answered by applying s 196B(14) of the Act.
11. Justice Katzmann said earlier in her judgment, at [53]:
Section 196B(14) relevantly provides:
A factor causing, or contributing to...disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
...
(d) it was contributed to in a material degree by, or was aggravated by, that service;
...
(g) in the case of a factor causing, or contributing to the death of a person – it was due....to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service.
12. In relation to the factor 6(i), her Honour stated, at [61]: “The relationship between the factor and service is not established only where the last exposure occurred during service.” And, at [88], “As I have already observed, to require that the last exposure occur during service imposes an additional hurdle for an applicant which, in my view, is not erected by the terms of the SoP.” Justice Katzmann said the Tribunal had failed to ask itself the right question and had, thereby, made an error of law.
ISSUES
13. There is no dispute that the cause of Mr Knight’s death was a myocardial infarction. The parties also accept that the first indication that he suffered from ischaemic heart disease was electrocardiogram (ECG) evidence from December 1996. In a report dated 1 May 2008, Dr RJ Butler, consultant physician, said that, in his opinion, “it would be reasonable to claim the onset of clinical ischaemic heart disease as 1996”.
14. In relation to Mr Knight’s operational service, the issue to be determined is whether the raised facts give rise to a reasonable hypothesis that Mr Hunter’s ischaemic heart disease was related to his operational service. The approach to be adopted is that set out by the Federal Court in Deledio. The relevant SoP relied upon by the Applicant is SoP No 89 of 2007 (as amended by SoP No 43 of 2009 and SoP No 96 of 2010). With regard to step three of Deledio and the factor(s) that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Mr Knight’s death from ischaemic heart disease with the circumstances of his relevant service, as stated above, the Applicant relies on factor 6(i):
(i) being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease, where the last exposure to that atmosphere did not occur more than five years before the clinical onset of ischaemic heart disease; …
Pursuant to Justice Katzmann’s decision, and noting that the clinical onset of Mr Knight’s ischaemic heart disease occurred in 1996, the relevant five year period is 1991 to 1996.
15. If there is such a reasonable hypothesis, the Tribunal must then (at step four of Deledio) consider, pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that “there is no sufficient ground” for making a determination that Mr Knight’s death was war-caused.
16. In relation to Mr Knight’s eligible defence service, the issue to be determined is whether the Tribunal can be reasonably satisfied that that Mr Knight’s ischaemic heart disease was related to that service. The relevant SoP relied upon by the Applicant is SoP No 90 of 2007 (as amended by SoP No 44 of 2009 and SoP No 97 of 2010). With regard to the factor(s) that must exist before it can be said that, on the balance of probabilities, Mr Knight’s death from ischaemic heart disease is connected with the circumstances of his relevant service, the Applicant relies on factor 6(i):
being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 10 000 hours before the clinical onset of ischaemic heart disease, where the last exposure to that atmosphere did not occur more than five years before the clinical onset of ischaemic heart disease; …
RELEVANT EVIDENCE
Jacqueline Knight
17. Mrs Knight provided a statement dated 2 September 2009 which was part of the evidence in the original Tribunal proceedings. Mrs Knight said her husband, who was a non-smoker, was an extremely fit man who played a lot of sport, ran marathons, cycled and prided himself on being fit and healthy. She recalled him telling her about the smoking in the Navy where, in enclosed spaces, the smoke was visible in the air and which he could never escape. She said when her husband left the Navy and worked in the Defence Department, he told her that practically all his colleagues smoked, a fog of tobacco smoke would sit around his co-workers’ desks, and tobacco smoke was circulated via the air conditioning system and permeated the work environment.
18. Mrs Knight said that her husband suffered from continuous, dry, irritating coughing and sneezing both at work and at home. His skin would pale to grey, he would become blue around the lips and he would be short of breath. He sought medical advice and after the Department said there was nothing they could do about the tobacco smoke in his work environment, he eventually quit his job, and retrained as a bricklayer. However, it was the practice of bricklayers in Canberra to meet in the local pubs where they would get work or receive payment for work they had completed. She said Mr Knight “would have to spend a considerable amount of time in these pubs after work, and he would always come home smelling of cigarettes”. Also, when there was no work in Canberra and he travelled elsewhere to find work, he would stay in similar pubs because he could not afford non-smoking accommodation.
Bradley Knight
19. Mr Knight’s son, Bradley Knight (Bradley), who is now aged 35, provided a statement dated 24 June 2011 and gave oral evidence by telephone at the hearing. He said he worked with his father for just over a year after he left school, from December 1993 to February 1995. His father had a bricklaying business and typically had various people working for him at different sites. Bradley said for the first month he worked directly with his father until his skills were good enough to work with other bricklaying crews. The majority of the time was spent working on larger commercial projects in Canberra such as the Defence Force Academy, Monterey Apartments and a smaller three‑level commercial building. However, there were also smaller jobs such as building extensions to houses. When his father moved the business to Sydney in early January 1995, they were working on larger houses on the outskirts of the city.
20. Bradley said his father was usually working on inside jobs because, as the owner and manager of the business, he needed to be aware of the presence of piping for plumbing and electrical work and control the quality of the bricklaying work they were performing. His father would lay bricks, assist the labourers, and generally oversee the work. He spent a lot of time in enclosed spaces with very little ventilation such as the basements of larger buildings where they were building concrete supports or, in the case of larger houses, working in a cellar or drying room or building inside walls.
21. Bradley stated that only about two of the twenty people working together did not smoke cigarettes and he remembered being exposed to large amounts of tobacco smoke in enclosed spaces. Where they were working in a building without any ventilation installed, the air would become thick with smoke and he recalled going home smelling of cigarettes. When they were working in Sydney in early 1995, they were working 15‑hour days “under similar conditions where everyone was smoking cigarettes constantly in enclosed areas”. At the time, they were staying in three‑person cabins in a caravan park and Bradley and his father shared a cabin with a heavy smoker who would smoke inside the cabin, which smelt of cigarettes. While his father “did not like being stuck in a cabin with smokers … he put up with it to get the job done and to keep costs under control”.
22. Bradley said after working 37 days straight in Sydney from 6.00am to 7.00pm, he missed his friends and family in Canberra and had had enough. So having discussed it with his parents, he returned to Canberra and joined the Public Service.
DISCUSSION
23. The Commission accepts that during his operational service and eligible defence service Mr Knight served in enclosed spaces where he was exposed to visible environmental tobacco smoke. The Commission also accepts the evidence of Commodore AHR Brecht (Retired) who, on 4 April 2008, estimated that Mr Knight had been exposed to a total exposure of 1,112 hours of environmental tobacco smoke during operational service and a further 6,358 hours exposure during other service on ships (part of which was eligible defence service) and 4,224 hours in shore establishments.
24. With regard to Mr Knight’s operational service, the first step in Deledio requires the Tribunal, having considered the material before it, to be satisfied that the material points to a hypothesis connecting Mr Knight’s death with the circumstances of his service. This is not a stage at which the Tribunal makes any findings of fact. In the Tribunal’s view, there is sufficient medical evidence provided by the Applicant to be satisfied that there is material pointing to such a hypothesis.
25. If such a hypothesis arises, the second step is to ascertain whether there is a relevant Statement of Principles (SoP). As stated above, the relevant SoP in this case is Instrument No 89 of 2007, as amended.
26. The third step requires the Tribunal to form an opinion as to whether the hypothesis is a reasonable one, consistent with the template in the relevant SoP(s). The third step was explained by the Court in Deledio in the following terms:
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.
27. The Full Court quoted Heerey J at first instance (see: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275) where his Honour said:
The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
28. Of particular importance in this case is whether the material before the Tribunal points to the factor(s) that must as a minimum exist to support the hypothesis being related to the person’s service in accordance with s 196B(14). In this case, the relevant factor is factor (i) being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1,000 hours where, relevantly, the last exposure to that atmosphere occurred in the period 1991 to 1996.
29. In the Tribunal’s view, the facts raised by the Applicant point to Mr Knight being in an atmosphere with a visible tobacco smoke haze in an enclosed space for more than 1,000 hours during his operational service. This is not disputed by the Commission. The Commission does, however, question whether factor (i) relates to Mr Knight’s operational service.
30. Justice Katzmann identified three subparagraphs of s 196B(14) as being relevant: (b), (d) and (g), set out above at [11]. (Her Honour also mentioned subparagraph (a) but did not later pursue this.) Justice Katzmann stated, at [78]:
… Here, provided that Mrs Knight could show, for example, that her husband’s presence in the relevant atmosphere arose out of, or was attributable to his service, was contributed to in a material degree by that service, or would not have occurred but for the rendering of that service or but for changes in Mr Knight’s environment consequent upon his having rendered that service (see s 196B(14)(b), (d) and (f)[sic]), later exposure to such an atmosphere could bring Mr Knight within the five year latency period. …
31. With regard to s 196B(14)(b), Miss Henderson, for the Commission, referred to the discussion of the words “arose out of or was attributable to the service” in Gilkinson v Repatriation Commission (2010) 118 ALD 547, at 559, where Stone J said:
…[subclause] (b) is concerned with causation in fact not causation at law. The ordinary language meaning of “caused by” when referring to causation in fact involves the concept of the relevant cause being the dominant or effective, although not necessarily the sole, cause of the nominated effect. This can be seen from the definition of “cause” in the Macquarie Dictionary, 2nd revised edition as “that which produces an effect; the thing, person, etc, from which something results”. In other words subcl (b) requires the applicant’s operational service to be the dominant or effective cause of the factor causing or contributing to the applicant’s disease.
Miss Henderson noted that this decision is under appeal.
32. Mr Vincent, for the Applicant, said Mr Knight’s being in an atmosphere with a visible tobacco smoke haze in an enclosed space for more than 1,000 hours during his operational service was the effective or dominant cause of his death due to ischaemic heart disease. Miss Henderson contended that this could not be established on the raised facts.
33. However, the principal basis on which the Applicant contends there is a connection to service is s 196B(14)(d). Miss Henderson noted that the words “contributed to in a material degree” have not been defined in the context of the Act. However, in relation to the use of similar words in s 4 (1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), she noted that in Comcare v Sahu-Khan (2007) 156 FCR 536, at 543, Finn J said that:
…
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.
34. Mr Vincent contended that Mr Knight’s death was contributed to in a material degree by being in an atmosphere with a visible tobacco smoke haze in an enclosed space for more than 1,000 hours during his operational service. Despite Mr Knight’s healthy lifestyle, he has a long history of exposure to tobacco smoke which is effectively an unbroken continuum and a significant cumulative process. Miss Henderson submitted that it is implicit that the effect of exposure to tobacco smoke dissipates over time and, in this instance, Mr Knight’s operational service should not be found to have made a material contribution to his death from ischaemic heart disease.
35. Finally, with regard to s 196B(14)(g), Miss Henderson submitted that the “but for” requirement imposes a high causal threshold. She contended that the facts of Mr Knight’s case do not meet this threshold, especially in the light of the fact that Mr Knight had a long exposure to tobacco smoke during his civilian employment, and the fact that Mr Knight’s operational service ended in 1968 with the clinical onset of his ischaemic heart disease not being until 1996. Mr Vincent contended that “but for’ Mr Knight being on board ship during his operational service, he would not have been exposed to more than 1,000 hours of visible tobacco smoke haze.
36. In the Tribunal’s view, the facts raised do not point to Mr Knight’s service being the effective or dominant cause of his ischaemic heart disease in accordance with s 196B(14)(b). In addition to Mr Knight’s operational service, eligible defence service and other onshore service in the Navy, the facts raised point to a long period of exposure to visible tobacco smoke haze while he was working in the Department of Defence from 1974 to 1987 in respect of which, on 2 May 1988, he was awarded workers’ compensation by the Commissioner for Employees’ Compensation for “an aggravation of … reactive diathesis due to cigarette smoke”, which gave rise to a total incapacity for work on 6 July 1983. The facts raised indicate Mr Knight continued to be exposed to visible tobacco smoke during the period of his self-employment as a bricklayer.
37. In the Tribunal’s view, the facts raised also do not point to the “but for” threshold in s 196B(14)(g) being met given Mr Knight’s other exposure to visible tobacco smoke after he left the Navy.
38. However, with regard to s 196B(14)(d), in the Tribunal’s view the facts raised do point to Mr Knight’s operational service contributing in a material degree to his death as a result of ischaemic heart disease, noting, in particular, that he more than meets the threshold required by factor 6(i) of “being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease”. The Tribunal also notes that Mr Knight’s exposure to visible tobacco smoke haze while on board ship was likely to have been for close to 24 hours a day, rather than for the working day during his employment in the Department of Defence or, while he was working as a bricklayer, usually for shorter intense periods undertaking interior work or meeting with others at the pub.
39. The Tribunal therefore considers the hypothesis raised to be a reasonable one given that it is not contrary to proved or known scientific facts, is not obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous and is not inconsistent with the applicable SoP: see above, Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.
40. Having formed the opinion that the hypothesis raised is a reasonable one, the Tribunal must then (at step four of Deledio) consider, pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that “there is no sufficient ground” for making a determination that Mr Knight’s death was war-caused. Mr Vincent contended that there is no medical evidence discounting Mr Knight’s operational service as a cause of his ischaemic heart disease. Miss Henderson submitted that the Tribunal should be satisfied beyond reasonable doubt in these terms because of the long period of time between the end of Mr Knight’s operational service in November 1968 and the clinical onset of his ischaemic heart disease in 1996. She noted that factor 6(i) gives particular emphasis to the last exposure to an atmosphere of visible tobacco smoke haze occurring within 5 years of the clinical onset of ischaemic heart disease.
41. The Tribunal is not satisfied that the Commission has disproved beyond reasonable doubt any of the facts raised in order to support the hypothesis. While it is certainly true that some 28 years passed between Mr Knight’s operational service, which ended in 1968, and the clinical onset of his ischaemic heart disease in 1996, including, in particular, exposure to visible tobacco smoke haze over a long period while Mr Knight was working in the Department of Defence, the way in which factor 6(i) is to operate means this is not a barrier to liability under the Act. The Tribunal therefore concludes that Mr Knight’s death was war-caused and the Commission is liable to pay a widow’s pension to the Applicant pursuant to s 13(1) of the Act.
42. Having so determined, it is unnecessary for the Tribunal to consider whether Mr Knight’s death is related to his eligible defence service which, as Mr Vincent acknowledged, would be more difficult to establish because of the higher threshold of “being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 10,000 hours before the clinical onset of ischaemic heart disease” (SoP No 90 of 2007).
Decision
43. The Tribunal sets aside the decision under review and substitutes a decision that Mr Knight’s death was war-caused and Mrs Knight is granted a widow’s pension from 5 September 2006.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President, and Air Vice-Marshal (Dr) T K Austin AM, Member.
Signed:.......[sgd]........................................................................
AssociateDate of Hearing 1 July 2011
Date of Decision 19 July 2011
Counsel for the Applicant M Vincent
Solicitor for the Applicant Kemp & Co Lawyers
Counsel for the Respondent R Henderson
Solicitor for the Respondent Australian Government Solicitor
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