Linton and Repatriation Commission - [2000] AATA 616

DECISION AND REASONS FOR DECISION [2000] AATA 616

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/1148

VETERANS'     APPEALS     DIVISION     )
           Re      GRAHAM ALEXANDER LINTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr A. Argent, Member Dr C. Re, Member

Date27 July 2000
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and substitutes therefor the decision as follows: (a) That the diagnosis asthma is amended to chronic airflow limitation; (b) That chronic airflow limitation is war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act"); (c) That the applicant is incapacitated from chronic airflow limitation for which the Commonwealth is liable to pay pension in accordance with the Act; (d) That the degree of incapacity suffered by the applicant from war-caused injury or disease is assessed at 100 per cent for the purposes of payment of pension at the General Rate, from 11 October 1995.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – asthma – diagnosis amended – chronic airflow limitation – applicant served in HMAS SYDNEY during three periods of deployment to South Vietnam – whether smoking at least ten "pack years" before clinical onset of chronic airflow limitation – whether arose out of or was attributable to periods of operational service – Decision set aside.
Words and Phrases – "Chronic Airflow Limitation"; "Pack-Year".
Veterans' Entitlements Act 1986, ss. 5C, 9, 13, 120, 120A, 126, 196B
Statement of Principles Instrument No. 17 of 1994 (Chronic Airflow Limitation), as amended by Instrument No. 65 of 1994
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Bey (1997) 149 ALR 721
Repatriation Commission v Deledio (1998) 49 ALD 1993
Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999

REASONS FOR DECISION

27 July 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member Mr A. Argent, Member Dr C. Re, Member
Introduction

This is an application by Graham Alexander Linton for review of the decision of the respondent dated 29 November 1995, affirmed by the Veterans' Review Board on 10 August 1998, that asthma is not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
Representation
At the hearing before this Tribunal Mr Linton was represented by Mr Hyde, of Counsel. Mr Douglass, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to some of which it shall be necessary to refer, was also received in evidence during the hearing.
Witnesses
In addition to Mr Linton, evidence was also given during the hearing by Professor M.C.F. Pain and Dr R. Horsley.
Professor Pain is a thoracic physician. Dr Horsley practices in the field of occupational health and rehabilitation.

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 Linton and Repatriation Commission

Details

AGLC: Linton and Repatriation Commission [2000] AATA 616
Case: [2000] AATA 616
Decision Date: 27 July 2000

CaseChat Overview and Summary

The case of Linton and Repatriation Commission involved the veteran, Mr. Linton, challenging a decision by the Repatriation Commission regarding the causation of his chronic airway limitation, which was diagnosed as asthma. The primary dispute centred on whether this condition arose from or was attributable to Mr. Linton’s operational service in Vietnam. The Federal Court of Australia was tasked with reviewing this decision. The court had to determine if chronic airway limitation was war-caused, given that the condition was diagnosed as asthma, but the primary issue at hand was the underlying chronic airway limitation. The court was required to assess the evidence and decide if the condition was linked to Mr. Linton's service, considering the specific criteria outlined in the Veterans' Entitlements Act 1986.

The court examined the evidence regarding Mr. Linton’s smoking history and its potential impact on the development of chronic airway limitation. It considered whether the condition was attributable to his service, particularly the periods of deployment in Vietnam, or if it was predominantly due to his smoking habits. The court applied the standard of proof, which required it to be satisfied beyond reasonable doubt that there was no sufficient ground for determining that the condition was not war-caused if the evidence supported a reasonable hypothesis connecting the condition to Mr. Linton’s service. The court also had to consider whether the condition could be attributed to the smoking that occurred during his operational service, especially since the clinical onset of the condition was after his service in Vietnam.

The court concluded that the evidence did not sufficiently support a reasonable hypothesis that Mr. Linton’s chronic airway limitation was attributable to his operational service in Vietnam. The primary factor influencing the decision was the evidence that Mr. Linton had been smoking heavily, at least ten "pack years" before the clinical onset of his condition, and that this smoking habit was not limited to his periods of operational service. The court found that the smoking habit was a significant contributing factor to the development of chronic airway limitation, and it was not sufficiently established that the condition arose out of or was attributable to his service. Consequently, the decision of the Repatriation Commission was set aside, and the matter was remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

Professor Pain is a thoracic physician. Dr Horsley practices in the field of occupational health and rehabilitation.Facts Not In Dispute Mr Linton was born on 2 August 1950. He served in the Royal Australian Navy from 10 July 1966 to 31 July 1979. Mr Linton rendered operational service within the meaning of the Act. His operational service covers allotment for duty in HMAS SYDNEY involving service in Vietnam for the following periods: Mr Linton is a veteran within the meaning of the Act.War-Caused Disabilities Mr Linton has malignant neoplasm of the skin (various sites) accepted as war-caused.Current Disability Pension Mr Linton is presently in receipt of a 10 per cent General Rate pension.Issue While as stated earlier Mr Linton's application for review is in respect of a decision of the respondent that asthma is not war-caused, the parties agreed that the most significant cause of his respiratory difficulties is chronic airway limitation. Thus, although in a strictly legal sense asthma is the claimed disability which is before the Tribunal upon review, the correct approach is for the Tribunal to proceed on the basis that the issue before it is whether chronic airway limitation arose out of, or is attributable to, Mr Linton's periods of operational service.Standard of Proof The standard of proof in determining the issue of causation in respect of Mr Linton's periods of operational service is that which is provided in subsections 120(1) and 120(3) of the Act. Those subsections state as follows:"120. (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.(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." It should be recorded at this point that Mr Hyde informed the Tribunal that in making his claim Mr Linton relies solely upon his periods of operational service and not on any period of other (eligible) service.Application of Subsections 120(1) and 120(3) of the Act – Methodology

Evidence

Evidence Before The Court

It is convenient at this point to record that the respondent does not dispute that a diagnosis of chronic airway limitation was made in respect of Mr Linton and that the clinical onset of the condition occurred at some time after 1978.Evidence Mr Linton stated that upon joining the Navy on 10 July 1966 he was posted immediately to a shore training establishment HMAS LEEUWIN, in Western Australia. He remained in HMAS LEEUWIN for a period of twelve months undergoing basic training. He was then posted to HMAS SYDNEY in the rank of Ordinary Seaman. He explained that while in the SYDNEY he continued to be under training and that he was required to do various tasks throughout the ship. Mr Linton stated that he first started smoking shortly after joining the Navy, smoking "probably up to a packet a day". However, because his training activities varied, so did his level of smoking. After joining the SYDNEY he continued to smoke about a packet a day, sometimes more. Cigarettes were available from the ship's Canteen and were duty free. Mr Linton's posting to the SYDNEY lasted about three months, after which he was posted to the destroyer escort HMAS PARRAMATTA. He was then posted to the shore establishment HMAS LONSDALE for a period of about two months while waiting to be posted to the shore training establishment HMAS CERBERUS. He remained under training in CERBERUS from March 1968 to November 1968. From CERBERUS Mr Linton was posted to HMAS KUTTABUL, a shore establishment in Sydney. While in KUTTABUL he worked in the Communications Centre at Fleet Headquarters until March 1969. From March 1969 to April 1970 Mr Linton again served in HMAS SYDNEY. From April 1970 to March 1974 Mr Linton served in HMAS HARMAN, a Naval Communications Establishment in the ACT. Mr Linton then served in the Mine Sweeper HMAS IBIS, from March 1974 until March 1976. While onboard the IBIS he was promoted to the rank of Leading Seaman Signals. Mr Linton was next posted back to HMAS HARMAN, where he served from March 1976 to January 1978. From HMAS HARMAN Mr Linton was posted to the Guided Missile Destroyer HMAS PERTH in which ship he remained from January 1978 to March 1978. Postings then followed, first back to HMAS KUTTABUL, and then to the shore establishment HMAS PENGUIN, in Sydney. It was Mr Linton's evidence that while serving in the SYDNEY from March 1969 to April 1970 (being a period which includes his first period of 22 days operational service), his level of smoking increased within a short period of time, from "20 to 40, sometimes 60", cigarettes per day. Mr Linton stated that there would probably have been about 24 other Communication Branch sailors onboard the SYDNEY, nearly all of whom smoked. Mr Linton explained that during each of the SYDNEY's deployments to Vietnam he was employed as a Signalman on the ship's Bridge, reporting to the Officer of the Watch and the Captain. He was also employed as a Signalman on the ship's Flag Deck whenever the SYDNEY was in company with other ships.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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