Lillian Oliver and Repatriation Commission
[2013] AATA 525
[2013] AATA 525
Division Veterans' Appeals Division File Number
2012/5375
Re
Lillian Oliver
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 25 July 2013 Place Perth The decision under review is set aside and, in substitution therefor, it is decided that the death of the veteran, Leslie Richard Oliver, on 1 January 1980 was “war-caused”, within the meaning of s 8(1) of the Veterans' Entitlements Act 1986 (Cth), and that the applicant is eligible for a pension under Part II of that Act, with effect from 11 July 2010.
....................[sgd]....................................................
S D Hotop
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – veteran served in Royal Australian Navy from 1952 to 1958 – veteran rendered eligible war service (being operational service) from March to November 1953 – veteran experienced passive smoking throughout operational service and subsequently in civilian life from 1963 to 1979 – veteran contracted ischaemic heart disease in 1976 – veteran died from ischaemic heart disease in 1980 – applicant claimed pension as widow of veteran in October 2010 on basis that veteran’s death war-caused – reasonable hypothesis that veteran's death related to operational service – reasonable hypothesis not disproved beyond reasonable doubt – veteran's death war-caused – decision under review set aside
LEGISLATION
Veterans' Entitlements Act 1986 (Cth), s 7(1), s 8(1), s 13(1), s 120, s 120A, s 196A and s 196B
Statement of Principles concerning ischaemic heart disease No 89 of 2007 (as amended by No 43 of 2009, No 96 of 2010, and No 125 of 2011)
CASES
Byrnes v Repatriation Commission (1993) 177 CLR 564
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Knight v Repatriation Commission (2010) 52 AAR 547
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Knight (2012) 202 FCR 451
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115REASONS FOR DECISION
Deputy President S D Hotop
25 July 2013
Introduction
Lillian Oliver (“the applicant”) is the widow of Leslie Richard Oliver (“the veteran”) who died on 1 January 1980 at the age of 45 years from causes certified as “coronary occlusion, coronary atherosclerosis, hypertension”.
The veteran had served in the Royal Australian Navy (“RAN”) from 4 May 1952 to 3 May 1958 in the course of which he rendered “operational service”, within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), having been allotted for duty in an “operational area” (namely, Korean waters) on board HMAS Culgoa, from 14 March 1953 to 27 November 1953.
On 11 October 2010 the applicant lodged with the Department of Veterans’ Affairs a claim for a pension, dated 30 September 2010, on the basis that the veteran’s death was “war-caused” within the meaning of s 8 of the VE Act.
On 4 December 2010 a delegate of the Repatriation Commission (“the respondent”) decided that the death of the veteran “is not related to service, and that a war widow’s pension is therefore not payable”.
On 10 September 2012 the Veterans’ Review Board (“VRB”) affirmed the respondent’s decision of 4 December 2010.
On 28 November 2012 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 10 September 2012.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T12, pp I–XV; 1–113) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
Relevant Material Included in the T Documents
A report of Dr Neil Same, dated 27 September 1991, stated that (inter alia):
·the veteran had first consulted him in 1966 and continued to attend upon him until 1979;
·the veteran complained of “L chest pain” in 1976 and “chest pain” in 1978;
·an ECG in 1976 showed “early coronary ischaemia” and an ECG in 1979 showed “increasing coronary ischaemia”. (T5, p 24)
On 14 October 1991 a Departmental Medical Officer recorded as follows:
“ This 45 year old veteran died on 1.1.80 of Ischaemic Heart Disease.
…” (T6, p 28)
In a report dated 14 September 1992 Dr Winstone Berry, Consultant Physician, stated that the veteran “died suddenly in 1980 from an acute myocardial infarction due to coronary artery disease”. (T7)
Following a letter from the Registry of the VRB, dated 25 June 2012, to the applicant’s representative requesting that evidence be obtained “from ex-Navy personnel regarding the conditions on ships and the likelihood that Mr Oliver was exposed to the required amount of passive smoking on HMAS CULGOA …” (T12, p 108), the following letter from R B Mummery, Commander RANR (Rtd), dated 5 July 2012, was provided:
“ In response to your request via Legacy Admin Assistant … wrt Leslie Richard Oliver and his probable exposure to passive smoking I submit the following:
From my experience of having served in 1997 & 1998 as the Marine Engineer Officer of HMAS DIAMANTINA, a sister ship to HMAS CULGOA, and from a short period in 1963 living on board HMAS CULGOA when the ship was located at HMAS WATERHEN in Waverton, New South Wales as an accommodation vessel, I am able to offer some further insight to [sic] the conditions that Mr Oliver would have experienced whilst living and working aboard HMAS CULGOA.
The messing (accommodation and meals) arrangement in that class of ship was austere and in keeping with World War II’s hastily constructed ships. As such Mr Oliver would have been accommodated in a mess deck possibly one deck below the main deck, alternatively in a wing mess adjacent to the engine room. In any case, the mess decks were not air-conditioned and, in all but the most friendly of sea ways, the ventilation was poor particularly against the standards of today. Mr Oliver’s working environment was in areas that were hot, confined and generally also poorly ventilated. Cigarettes and tobacco products were sold from the ship’s canteen on board at duty free prices and the majority of the ship’s company would have been relatively heavy smokers as is evidenced by movies of the era, the number of smoking related diseases and illnesses recorded in the post war period up to and including today. Similarly the canteen records of tobacco products sold would also indicate a high usage rate of those products. The only restrictions on smoking in the ship applied to certain areas and then only when refuelling or ammunitioning procedures were being undertaken.
Smoking in the mess deck areas was accepted as part of a sailor’s recreation rights and activities and so smoking would be undertaken at all hours by those sailors having time off in between watch-keeping duties. Even during the silent hours of 2200 through to 0630 some sailors would have been smoking as they were being called for their turn to go on watch or in fact prior to turning in (going to bed) having been relieved from watch. These times were generally around midnight and 0400 in the morning. Little regard was given to those who did not smoke. Hammocks were the form of bedding used in these ships and whilst smoking in a hammock was discouraged some individuals ignored that advice. The hammock arrangements were such that the hammocks were slung in such a manner that when the occupants of the hammocks were in fact in them they would touch, ie be in actual contact with the adjacent hammocks. Mess decks were crowded by today’s standards.
Smoking in the work place was not forbidden and men smoked openly on the job unless refuelling or ammunitioning procedures dictated otherwise, and these situations were relatively rare happening mainly on a day in port.
As can be deduced from the foregoing paragraphs, it can be seen that Mr Oliver was continually exposed to passive smoking. Even when there were no cigarettes or other tobacco products burning the smell of dirty and smouldering ashtrays and the cloying remnants of smoke in clothing, bedding and general fabrics used in the mess deck would remain very noticeable. I am able to personally verify this from my own time as a non-smoker living in a sailor’s mess deck as I was a sailor for eleven years before becoming an officer, and even as an officer I was often exposed to passive smoking.
During Mr Oliver’s service on HMAS CULGOA he would have had many hours exposed to passive smoking. In order of hours exposed, it is difficult to quantify however, as a rule of thumb, it is approximately 1,000 hours that equates to 42 days. If an assumption that approximately 5 hours per day in which Mr Oliver was not subject to passive smoking, say during the silent hours, then Mr Oliver would have been exposed to passive smoking of 1,000 hours every 50 days or so.
In conclusion I can say that life aboard HMAS CULGOA, and any other ship of WWII vintage, was not an easy one; mess decks were crowded, heavy smoking by ships’ companies was recognised, tobacco products were sold at duty free prices from the ship’s canteen, ventilation in mess decks was poor, working areas were hot, confined and often poorly ventilated and there were few restrictions on smoking within the ship, then it is true to say that Mr Oliver was regularly exposed to passive smoking.
…” (T12, pp 110–111)
A letter from the applicant addressed “To whom it may concern”, dated 6 August 2012, states as follows:
“ My husband Leslie Richard OLIVER was a member of the Yokine Bowling Club and the Yokine Bowling Club Darts team from 1967 to 1980. He was also a long term member of the South Fremantle Football Club from 1963 to 1980.
Attendance at Yokine Bowling Club and the Yokine Bowling Club Darts team averaged approximately two attendances per week up to seven hours at a time on weekends with several hours spent inside in the bar and function area.
Attendance at South Fremantle Football Club clubrooms corresponded with South Fremantle Club home games during the football season. My husband would stay at the club for up to four hours after the games.
At these venues (Yokine Bowling Club, South Fremantle Football Club) I was witness to the smoke filled bar and function areas when I accompanied my husband to events on occasions.” (T12, p 112)
A letter from S A Woodley addressed “To whom it may concern”, dated 3 August 2012, states as follows:
“ I the undersigned, certify that Leslie Richard Oliver was a member of a Bowling Club (which I also am a member of) from 1967 to 1980.
He was a regular attendee at sporting events outdoors, and social events indoors at the club.
He was a member of the darts team that practised regularly in the bar area and at other clubs in an inter club competition in the winter season.
At all these venues there was an appreciable smoke haze as there was no restriction on smoking indoors.
Attendance at the club and other similar clubs included regular Thursday nights, and Saturday [sic] and Sundays.
Attendance averaged 3 – 4 hours on Thursdays and up to 7 – 8 hours on weekend days, with up to 3 – 4 hours indoors.” (T12, p 113)
The Relevant Legislation
The VE Act
The VE Act relevantly provides as follows:
“ 7Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…
8War-caused death
(1) Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
13Eligibility for pension
(1) Where:
(a)the death of a veteran was war-caused; or
(b)a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…
120Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
120AReasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
…
196AEstablishment of Authority
(1)A Repatriation Medical Authority is established.
…
196BFunctions of Authority
(1)This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act and the MRCA.
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).
…
(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
…
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
…”
The Statement of Principles
The relevant Statement of Principles, as determined by the Repatriation Medical Authority under s 196B(2) of the VE Act, is set out below (see paragraph 21).
Analysis
The “kind of death”
It is common ground, and the Tribunal finds on the basis of the medical evidence referred to in paragraphs 8–10 above, that the “kind of death”, within the meaning of s 196B(2) of the VE Act, in the veteran’s case is “death from ischaemic heart disease”.
Was the death of the veteran “war-caused”, within the meaning of s 8(1) of the VE Act?
The question whether the veteran’s death was “war-caused”, within the meaning of s 8(1) of the VE Act, falls to be determined, in accordance with s 120(1) of the VE Act, on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the veteran’s death was war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be so satisfied if, after consideration of the whole of the material before it, it is of the opinion that the material before it “does not raise a reasonable hypothesis connection the … death … with the circumstances of” the veteran’s operational service. If a relevant Statement of Principles, determined under s 196B(2) of the VE Act, is in force, a raised hypothesis connecting the veteran’s death with the circumstances of his operational service will be “reasonable” only if that Statement of Principles upholds that hypothesis: see s 120A(3) of the VE Act.
For the purpose of determining whether the veteran’s death was “war-caused”, within the meaning of s 8(1) of the VE Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
Does the material before the Tribunal raise a hypothesis connecting the death of the veteran with the circumstances of his operational service?
The Tribunal, having considered the whole of the material before it, is of the opinion that the material before it does raise a hypothesis connecting the veteran’s death with the circumstances of his operational service. That hypothesis, in general terms, is that the veteran was present in enclosed spaces where there was a visible tobacco smoke haze throughout his operational service and subsequently in civilian life and that the “passive smoking”, to which he was exposed in those circumstances, contributed substantially to his contracting ischaemic heart disease from which he subsequently died.
The Statement of Principles
The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, Statement of Principles concerning ischaemic heart disease No 89 of 2007 (as amended by No 43 of 2009, No 96 of 2010, and No 125 of 2011) (“the SoP”).
The SoP relevantly states as follows:
“…
Kind of injury, disease or death
3(a) Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.
(b)For the purposes of this Statement of Principles, ‘ischaemic heart disease’ means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
…
Basis for determining the factors
4The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
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 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; or
…
Other definitions
9. For the purposes of this Statement of Principles:
…
‘death from ischaemic heart disease’ in relation to a person includes death from a terminal event or condition that was contributed to by the person’s ischaemic heart disease;
…
‘relevant service’ means:
(a) operational service under the VEA;
(b) peacekeeping service under the VEA;
(c) hazardous service under the VEA;
(d) warlike service under the MRCA; or
(e) non-warlike service under the MRCA;
‘terminal event’ means the proximate or ultimate cause of death and includes:
(a) pneumonia;
(b) respiratory failure;
(c) cardiac arrest;
(d) circulatory failure; or
(e) cessation of brain function.
Application
10.This Instrument applies to all matters to which section 120A of the VEA or section 338 of the MRCA applies.”
Does the material before the Tribunal raise a reasonable hypothesis connecting the death of the veteran with the circumstances of his operational service?
Pursuant to s 120A(3) of the VE Act, the hypothesis raised by the material before the Tribunal, connecting the veteran’s death with the circumstances of his operational service, will be a reasonable hypothesis only if it is upheld by the SoP.
The only factor in clause 6 of the SoP relied on by the applicant is the factor set out in para (i), namely:
“ 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”.
Clause 5 of the SoP, furthermore, requires that that factor be “related to” the operational service rendered by the veteran
In Knight v Repatriation Commission (2010) 52 AAR 547 the Federal Court of Australia (Katzmann J) held that para (i) of clause 6 of the SoP does not, in terms, require that the last exposure to “an atmosphere with a visible tobacco smoke haze in an enclosed space” within five years of the “clinical onset of ischaemic heart disease” occur during the relevant service. In Repatriation Commission v Knight (2012) 202 FCR 451 the Full Court of the Federal Court of Australia, in an appeal from a decision of the Tribunal following a remittal by Katzmann J in Knight (above), agreed with Katzmann J’s interpretation of para (i) of clause 6 of the SoP (at 461 [46]). In Knight Katzmann J also said (52 AAR at 559 [61]):
“ Whether a factor is related to service, as required by clause 5, is to be determined by considering whether it meets the statutory definition of ‘related to service’ in s 196B(14). The relationship between the factor and service is not established only where the last exposure occurred during service.”
Likewise, the Full Court said (202 FCR at 455 [19]):
“ … In this case the factor was exposure to tobacco smoke. The question raised by s 196B(14)(d) (through cl 5) becomes, in that context, whether the service contributed to the exposure to tobacco smoke.”
In Gilkinson v Repatriation Commission (2011) 197 FCR 102 the Federal Court of Australia (Full Court) considered the relationship between para (b) and para (d) of s 196B(14) of the VE Act. The Court held that each paragraph involves a broad test of causation and that the test of causation in para (d), namely, “contributed to in a material degree by …”, is not necessarily broader than the test of causation in para (b), namely, “arose out of, or was attributable to”. As Nicholas and Robertson JJ said (at 107 [32]):
“ … the words in the two provisions are different and the operation of them may be different depending on the facts of a particular case.”
In the Tribunal’s opinion, the material before it does point to the existence or fulfilment of the factor set out in para (i) of clause 6 of the SoP in this case, namely:
·the letters set out in paragraphs 11, 12 and 13 above relating to the veteran’s exposure, for more than 1,000 hours, to an atmosphere with a visible tobacco smoke haze in enclosed spaces throughout his operational service from 14 March 1953 to 27 November 1953 and subsequently in civilian life at the Yokine Bowling Club and the South Fremantle Football Club from 1963 to 1979; and
·the medical material set out in paragraphs 8 and 9 above relating to the veteran’s contracting ischaemic heart disease in the period 1976–1979.
The Tribunal is also of the opinion that that material points to that factor being “related to” (within the meaning of s 196B(14) of the VE Act) the veteran’s operational service, as required by clause 5 of the SoP, in that it “arose out of, or was attributable to, that service” (s 196B(14)(b)) or was “contributed to in a material degree by … that service” (s 196B(14)(d)).
The Tribunal, having regard to the whole of the material before it, is of the opinion, therefore, that the SoP upholds the abovementioned hypothesis connecting the veteran’s death with the circumstances of his operational service. That being the case, it cannot be said that that hypothesis is “contrary to proved or known scientific facts” or is “otherwise fanciful”: Deledio (above) at 97.
Accordingly, pursuant to s 120A(3) of the VE Act, the hypothesis raised by the material before the Tribunal, connecting the veteran’s death with the circumstances of his operational service, is a reasonable hypothesis.
Is the Tribunal satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death of the veteran was war-caused?
The death of the veteran shall, for the purposes of the VE Act, be taken to have been war-caused if it (relevantly) “arose out of, or was attributable to,” the operational service rendered by him: s 8(1)(b) of the VE Act.
In Repatriation Commission v Law (1980) 31 ALR 140 the Federal Court of Australia (Full Court) considered the meaning of the phrase “has arisen out of or is attributable to” in s 101(1)(b) of the Repatriation Act 1920 (Cth). The Court said (at 150, 151);
“ Section 101(1)(b) confers entitlement to a pension upon the death of any member of the forces whose death has ‘arisen out of or is attributable to’ his war service. This provision is disjunctive, which suggests that each limb has a different operation. …
…
In s 101(1)(b) the words ‘arising [sic] out of’ require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause.
The Act does not say death which is ‘caused by’ or ‘results from’ his war service – phrases which might connote a proximate causal relationship. The expression ‘arisen out of’ is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description ‘arising [sic] out of’.
…
It seems clear that the expression ‘attributable to’ in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show ‘attributability’ if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show ‘attributability’ if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.”
Similarly, in Roncevich v Repatriation Commission (2005) 222 CLR 115 the plurality in the High Court of Australia, referring to s 70 (5) of the VE Act, 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]
In Gilkinson (above) the Full Court also held that the phrase “arose out of, or was attributable to,” in ss 8(1)(b), 9(1)(b) and 70(5)(a) of the VE Act, bears the same meaning, and involves the same broad test of causation, as the identical phrase in s 196B(14)(b) of the VE Act (197 FCR at 105–107, 110-111).
On the basis of the evidence referred to in paragraphs 8–13 above (none of which was disputed by the respondent), the Tribunal makes the following findings:
·the veteran was in an atmosphere with a visible tobacco smoke haze in enclosed spaces for several hours per day throughout the whole of his operational service from 14 March 1953 to 27 November 1953;
·the veteran was subsequently in an atmosphere with a visible tobacco smoke haze in enclosed spaces at the Yokine Bowling Club and the South Fremantle Football Club on a regular basis for several hours per week throughout the whole of the period from 1963 to 1979;
·the veteran contracted ischaemic heart disease in 1976 and that disease progressively worsened until he died from that disease on 1 January 1980.
The Tribunal notes that the respondent did not dispute any of the facts necessary to support the abovementioned reasonable hypothesis connecting the veteran’s death with the circumstances of his operational service. The Tribunal is satisfied, furthermore, that:
·none of the facts necessary to support that hypothesis has been disproved beyond reasonable doubt; and
·there is no material before the Tribunal which is inconsistent with that hypothesis.
It follows that the Tribunal cannot be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s death was war-caused, and, accordingly, pursuant to s 120(1) of the VE Act, the applicant’s claim that the death of the veteran was war-caused must succeed: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.
Conclusion
The Tribunal concludes that the death of the veteran on 1 January 1980 “arose out of, or was attributable to”, the “eligible war service” (being “operational service”) rendered by him from 14 March 1953 to 27 November 1953 and is, accordingly, pursuant to s 8(1)(b) of the VE Act, “taken to have been war-caused” for the purposes of that Act.
It is common ground, and the Tribunal accepts, that the appropriate date of effect of its determination that the veteran’s death was war-caused is 11 July 2010.
Decision
For the above reasons, the decision under review is set aside and, in substitution therefor, it is decided that the death of the veteran on 1 January 1980 was “war-caused”, within the meaning of s 8(1) of the VE Act, and that the applicant is eligible for a pension under Part II of that Act, with effect from 11 July 2010.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ...........[sgd D Brodie]..............................................
Administrative Assistant
Dated 25 July 2013
Date of hearing
11 July 2013
Representative of the Applicant
Mr P Eddy
Perth Legacy
Representative of the Respondent
Mr C Ponnuthurai
Compensation and Review Branch Department of Veterans’ Affairs
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