Pamment, Scotia Ada v The Repatriation Commission
[1996] FCA 843
•20 Sep 1996
CATCHWORDS
VETERANS' AFFAIRS - construction of para 6 (1) (n) of Veterans' Entitlements Act 1986 - whether person who had, in Australia, rendered service in actual combat against the enemy for one day was to be treated as having rendered "operational service" throughout entire period in which he had rendered continuous full-time service as a member of the Defence Force within Australia during World War 2 or merely for the one day in question - whether Administrative Appeals Tribunal and trial Judge had erred in approach to causation of death - whether lack of mobility in knee arising from war-caused injury was a cause of death where veteran killed by shard of glass when vehicle mounted footpath and crashed into his house - whether Tribunal should have been reasonably satisfied that lack of mobility arising from war-caused knee injury had contributed to death.
Veterans' Entitlements Act 1986, s 6 (1) (n)
Younger v Repatriation Commission (1992) 28 ALD 211 (FCA/Olney J)
McKeown v Repatriation Commission (1995) 39 ALD 30 (FCA/Jenkinson J)
Repatriation Commission v Kohn (1989) 87 ALR 511 (FCA/Hill J) Repatriation Commission v Ahrenfeld (1991) 29 FCR 556 (FC)
Repatriation Commission v Smith (1987) 15 FCR 327 (FC)
SCOTIA ADA PAMMENT v THE REPATRIATION COMMISSION
No NG 008 of 1996
Jenkinson, O'Loughlin, Lindgren JJ
Sydney
20 September 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 008 of 1996
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
BETWEEN:
SCOTIA ADA PAMMENT
Appellant
AND:
THE REPATRIATION COMMISSION
Respondent
CORAM:Jenkinson, O'Loughlin, Lindgren JJ
PLACE:Sydney
DATE:20 September 1996
MINUTE OF ORDERS
THE COURT ORDERS:
THAT the appeal be dismissed.
THAT the appellant pay the respondent's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 008 of 1996
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
BETWEEN:
SCOTIA ADA PAMMENT
Appellant
AND:
THE REPATRIATION COMMISSION
Respondent
CORAM:Jenkinson, O'Loughlin, Lindgren JJ
PLACE:Sydney
DATE:20 September 1996
REASONS FOR JUDGMENT OF THE COURT
THE COURT:
INTRODUCTION:
The appellant appeals from a decision of a Judge of the Court dismissing her appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") in its Veterans' Appeals Division. The appellant is the widow of a veteran ("the Veteran") who died on 16 July 1990. On 25 June 1991, the respondent ("the Commission") decided that the Veteran's death was not war-caused. On 9 September 1992 that decision was affirmed by the Veterans' Review Board ("the Board"). On 19 January 1995 the Tribunal also affirmed the Commission's decision.
BACKGROUND FACTS:
The Veteran was born on 5 November 1922. He served in the Australian Army from 20 April 1942 to 30 August 1946. For part of that time, from 26 October 1942 to 8 December 1943, he served in the Torres Strait Islands. It was not in dispute that his service there was service within Australia. On 19 June 1943, Horn Island was bombed by the enemy. (There was a conflict in the evidence as to whether the attack took place on 18 or 19 June. We will refer to the date as 19 June as the Tribunal did. Nothing turns on the difference.) At the time of the attack the Veteran was on either Horn Island or Thursday Island, some two nautical miles away.
On 30 August 1944, while the Veteran was playing football at Port Kembla, he suffered an injury to his right knee. As a result, he suffered from a condition described as "ligamentous injury right knee".
On 16 July 1990, 46 years after the football injury, the Veteran was at his home at 43 Rose Street, Leichhardt when a motor car mounted the footpath, crashed through a timber paling fence and into the house. As a result of the crash, a shard of glass pierced the Veteran's skull and caused his death virtually instantly.
The appellant's case is that the Veteran's ligamentous injury to his right knee restricted his mobility and that the restriction, by limiting his ability to escape the path of the
shard of glass, was a cause of his death which, by reason of the facts outlined above, was "war-caused" for pension entitlement purposes.
PROCEDURAL HISTORY
The appellant applied on 7 September 1990 to the Department of Veterans' Affairs for a pension as a dependant of the Veteran. On 25 June 1991, the Delegate of the Commission determined that the Veteran's death was not "war-caused" within the meaning of s 8 of the Act.
That decision was affirmed by the Board on 9 September 1992. However, the Board decided that the Veteran's service in the Torres Strait Islands from 26 October 1942 to 18 June 1943 was "operational service" for the purpose of para 6 (1) (n) of the Veterans' Entitlements Act 1986, the date 18 June 1943 having been taken by the Board to be the date of the last air raid in the area (see earlier).
On 20 October 1992, the appellant lodged an application with the Tribunal for a review of the Commission's decision.
On 19 January 1994, the Tribunal gave its reasons for decision on a preliminary issue as to whether the Veteran had had operational service by virtue of para 6 (1) (n) of the Act. The Tribunal decided that the bombing of Horn Island on 19 June 1943 while the Veteran was either there or on Thursday Island constituted the Veteran's being in actual combat against the enemy and therefore that on 19 June 1943 he had had "operational service" by reason of para 6 (1) (n) of the Act. The Tribunal varied the decision of the Board, decided that the Veteran had had operational service only on 19 June 1943 (thereby restricting the earlier finding of the Board), and decided that he was not on operational service on the date in August 1944 on which he suffered the injury to his right knee.
One year later, on 19 January 1995, the Tribunal further decided that it could not be reasonably satisfied that the Veteran's disability associated with his right knee contributed in any way to his death.
On appeal to this Court, the trial Judge decided that the Tribunal had not erred in its decision that it had been only on 19 June 1943 that the Veteran had had "operational service" and that his service in New South Wales in August 1944 when he suffered the injury to his knee was not operational service. Further, his Honour held that the Tribunal had not erred in failing to be satisfied on the balance of probabilities that the Veteran's death was contributed to by the ligamentous injury to his right knee.
RELEVANT PROVISIONS OF THE ACT
Section 13 of the Act provides that where the death of a Veteran was "war-caused", the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the dependants of the Veteran in accordance with the Act. The notion of a "war-caused" death is dealt with in s 8. The appellant relied on paras 8 (1) (b) and (d) which are as follows:
8.(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)........ ........ ........ ........ ......
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)........ ........ ........ ........ ......
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred ..., but for his or her having rendered eligible war service or ...;"
These paragraphs describe different causative links between the death and "eligible war service".
The expression "eligible war service" is not defined but s 7 identifies sets of circumstances in which a person is to be taken to have rendered such service. Paragraphs 7 (1) (a) and (c) are relevant to the position of the Veteran:
"7.(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
(b)........ ........ ........ ........ ....
(c)a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; ..."
The Veteran satisfied the terms of both paras (a) and (c), albeit for only one day in the case of para (a) according to the first of the Tribunal's two decisions referred to earlier.
It is para 6 (1) (n) on which the first issue in the appeal turns. Paragraphs 6 (1) (a), (b) (c) (d), (m), (n) and (r) are as follows:
"6.(1)For the purposes of this Act:
(a)a person who has rendered, as a member of the Defence Force, continuous full-time service outside Australia during a war to which this Act applies shall be taken to have been rendering operational service while the person was so rendering continuous full-time service; and
(b)a person who has rendered, as a member of the Defence Force, continuous full-time service for a continuous period of not less than 3 months in that part of the Northern Territory that is north of the parallel 14 degrees 30 minutes south latitude (including any of the islands adjoining the Northern Territory) during the period from and including 19 February 1942 to and including 12 November 1943 shall be taken to have been rendering operational service while the person was so rendering continuous full-time
service; and
(c)a person who, while living on a Torres Strait Island, enlisted in the Defence Force and rendered, as a member of the Defence Force, continuous full-time service for a continuous period of not less than 3 months on that Island during World War 2 shall be taken to have been rendering operational service while the person was rendering any such service so rendered by the person during the period from and including 14 March 1942 to and including 18 June 1943; and
(d)a person who has rendered, as a member of the Defence Force, service of a kind described in paragraph (a), (b) or (c) during world War 1 or World War 2 shall be taken to have been rendering operational service during any period of continuous full-time service rendered by the person during that war, within Australia, immediately before, or immediately after, the person rendered that service of a kind so described; and
(e)... (f) ... (g) ... (h) ...
(i)... (j) ... (k) ... (l) ...; and
(m)a person who, while rendering continuous full-time service as a member of the Defence Force within Australia during World War 2, was injured, or contracted a disease, as a result of enemy action shall be taken to have been rendering operational service when the occurrence as a result of which the person was injured, or contracted the disease, happened; and
(n)a person who has rendered continuous full-time service as a member of the Defence Force within Australia during World War 2 in such circumstances that that service should, in the opinion of the Commission, be treated as service in actual combat against the enemy shall be taken to have been rendering operational service while the person was so rendering that continuous full-time service; and
(o)... (p) ... (q) ...; and
(r)a person who was employed within Australia on a ship as an Australian mariner, in such circumstances that the employment should, in the opinion of the Commission, be treated as employment in actual combat against the enemy is taken to have been rendering operational service while the person was so employed."
The significance of the notion of "operational service" in the present case is found in s 120 of the Act. That section affords an evidentiary advantage to claimants for pensions in respect of the incapacity from injury or disease of a veteran and in respect of the death of a veteran, where the claims "relate to the operational service rendered by the veteran". In such cases sub-s 120 (1) provides that the Commission must determine that the injury, disease or death was war-caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination." Sub-section 120 (3) elaborates on sub-s 120 (1). Where, however, a claim for a pension does not relate to operational service rendered by the veteran, sub-s 120 (4) applies. It provides that the Commission must decide "to its reasonable satisfaction." This formula imports the standard of proof required in civil litigation, and usually referred to as the balance or preponderance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 (FC).
In the context of the present facts if the Veteran's football injury to his right knee was sustained while he was rendering operational service the appellant would enjoy the procedural advantage of sub-ss 120 (1) and (3); if not she would have to persuade the Commission, according to the balance of probabilities, that the Veteran's death was "war-caused" for the purposes of the Act.
GROUNDS OF APPEAL
There were two broad issues argued on the appeal. Grounds 2 and 3 were as follows:
On the proper construction of S.6(1)(n) of the Veterans Entitlement [sic] Act, 1986 (as amended) when a person has rendered continuous full-time service within the meaning of the Act and part of such service is combat service, the whole of the continuous service is deemed to be rendering operational service.
The Tribunal having held that the deceased person was in combat against the enemy should have held that injury received by the deceased person was received during operational service and therefore Sections 120(1) and 120(3) of the Veterans' Entitlements Act, 1986, should apply."
The appellant submits that once the Tribunal decided that the Veteran was in combat against the enemy on 19 June 1943, para 6 (1) (n), on its proper construction, required that the whole of the Veteran's full-time service as a member of the Defence Force within Australia during World War 2 be taken to have been operational service, with the result that the football injury suffered on 30 August 1944 was suffered while the Veteran was rendering operational service. The consequence of that view would be that sub-ss 120 (1) and (3) would apply to the appellant's advantage.
The second issue debated on the appeal was the issue whether, in any event, the Tribunal had erred in its approach to the factual question whether the ligamentous injury to the Veteran's right knee had contributed to his death. The grounds of appeal relevant to this issue are as follows:
His Honour should have held that the Tribunal should have considered whether the veteran's lack of mobility was the proximate cause of the veteran's death.
His Honour erred in not holding that the shard of glass was but one factor to be considered in attributing the death of the veteran to his war service, and the primary factor was whether the lack of mobility was the reason for the veteran being in the place where he was, when killed because of the lack of mobility."
We will refer to the two issues as "the construction issue" and the "causation issue" respectively.
REASONING ON THE APPEAL
The construction issue
In our opinion, the words "so" and "that" in para 6 (1) (n) plainly signify that a person's continuous full-time service which is deemed "operational service" is his or her full-time service which satisfies all the words which precede the future perfect verbal expression in the paragraph, "shall be taken". That is to say, the person's operational service is only the
full-time service that he or she has rendered as a member of the Defence Service within Australia during World War 2 in such circumstances that the service should, in the Commission's opinion, be treated as service in actual combat against the enemy. To express the point differently, it is not all full-time service that a person has rendered as a member of the Defence Force within Australia during World War 2 that counts as "operational service": it is only that part (or the whole where appropriate) which the person rendered in such circumstances that it should, in the Commission's opinion, be treated as service in actual combat against the enemy.
The general scheme of sub-s 6 (1) supports this construction. The successive paragraphs of the sub-section conform to a general pattern. They describe a connection between a person and "operations" and provide that the person "is" or "shall be", "taken to have been" or "be treated as", "rendering operational service" during a period co-extensive with that connection. Paragraph 6 (1) (n) can be analysed in that way as follows:
["a person"]
["who has rendered continuous full-time service as a member of the Defence Force within Australia during World War 2 in such circumstances that service should, in the opinion of the Commission, be treated as service in active combat against the enemy"]
["shall be taken to have been rendering operational service against the enemy"]
["while the person was so rendering that continuous full-time service".]
The qualifying condition identified in para 6 (1) (n) is not simply the rendering of continuous full-time service within Australia during World War 2: it is that, but only if and to the extent that such service should, in the Commission's opinion, be treated as service in actual combat against the enemy.
The construction urged by the appellant leads to extreme results which are discordant with the legislative intent. Firstly, it is clear that full-time service as a member of the Defence Force within Australia during World War 2 is not, ipso facto, "operational service". Yet, according to the appellant's submission, if, in the Commission's opinion, the circumstances are such that one day of a period of such full-time service should be treated as service in actual combat against the enemy, the entire period of continuous full-time service is to be treated as operational service, with the odd result that an injury suffered at any time during that full time service, no matter how remote in time, place and circumstance from "the activating day", is to be taken as having been sustained on operational service. The present is such a case.
Secondly, if the appellant's submission is correct, para 6 (1) (n) is apt to be more favourable to a claimant than paras 6 (1) (a), (b) and (c), quoted earlier. Take, for example, para 6 (1) (a). The words "while" and "so" make it clear that a claimant under para (a) is to be taken to have been rendering operational service only while he or she rendered, as a member of the Defence Force, full-time service outside Australia during a war to which the Act applies. (The extensions allowed by para 6 (1) (d), also quoted earlier, for continuous full-time service within Australia "immediately before" and "immediately after" the service rendered outside Australia during World War 1 or World War 2, do not affect the substance of the present point.) Under para 6 (1) (a), a person who rendered, as a member of the Defence Force, continuous full-time service outside Australia for (say) six months out of a total period of full-time service of two years, would be taken to have been rendering operational service during the period of six months only. Yet, according to the appellant's submission, under para 6 (1) (n) a person who rendered qualifying service of as little as one day is to be taken to have rendered operational service throughout the whole period of two years. Paragraphs 6 (1) (a)-(k) indicate an intention to favour persons who rendered service outside Australia. Paragraphs 6 (1) (m) and (n), quoted earlier, extended this favourable treatment of those who rendered service outside Australia to closely limited classes of persons who rendered service within Australia. The policy evident in sub-s 6 (1) is conducive to an expectation that if service in Australia is to qualify under paras 6 (1) (m) and (n) as operational service, it will do so only for a period temporally limited by reference to the qualifying condition.
Paragraph 6 (1) (n), like para 6 (1) (r) quoted earlier, introduces as an aspect of the qualifying condition, an opinion of the Commission. But in our view, this does not provide a basis on which those paragraphs should be construed differently from the other paragraphs of sub-s 6 (1). It is wrong, while taking the Commission's opinion into account for the purpose of determining whether the activating condition is satisfied, to ignore it for the purpose of identifying the "continuous full-time service" and "employment", that are declared by paras (n) and (r) respectively to be "operational service".
In sum, we think that the construction contended for by the appellant is inconsistent with the plain meaning of para 6 (1) (n) in itself, with the structural pattern of the various paragraphs of sub-s 6 (1), with the legislative policy to be found in sub-s 6 (1), and with a reasonable and sensible meaning of the paragraph.
We note that our construction is that which was adopted by Olney J in Younger v Repatriation Commission (1992) 28 ALD 211 (and see judgment transcript at pp 9-11) and by Jenkinson J in McKeown v Repatriation Commission (1995) 39 ALD 30.
In the course of argument, reference was also made to Repatriation Commission v Kohn (1989) 87 ALR 511 (FCA/Hill J) ("Kohn") and to Repatriation Commission v Ahrenfeld (1991) 29 FCR 556 (FC) ("Ahrenfeld"). The construction outlined by us as being correct is consistent with the legislative policy referred to by Hill J in Kohn of providing "preferential treatment in pension claims to persons whose service was in a real sense outside Australia" (at 522). Our construction of para 6 (1) (n) also receives some support from dicta in Ahrenfeld at 562 (but cf 558).
The causation issue
We now turn to the third and fourth grounds of appeal set out earlier. Because the Veteran's death was not related to operational service rendered by him, the appellant was not entitled to the advantage of the "relaxed standard of proof" afforded by sub-ss 120 (1) and (3) of the Act. But it remained a possibility that the Commission might decide "to its reasonable satisfaction" that the Veteran's death was war-caused after all, by reason of the matters referred to in para 8 (1) (b) or (d) quoted earlier.
The relevant findings of the Tribunal were as follows:
"21.The Tribunal finds that, on the balance of probabilities, the Veteran was working at the fish tank just before the vehicle entered his property. We also find that he suffered from some restrictions in his mobility albeit minimal, as a result of his knee disability. Given that the fish tank was on top of the vehicle and that there was no direct impact of the vehicle to the body of the deceased Veteran, we find that the Veteran's mobility was sufficient to move out of the path of the oncoming vehicle. However, he was killed by a shard of glass and not by the vehicle directly. In order for the matter to succeed it is necessary for the Tribunal to find that the Veteran was unable to move out of the way of the shard of glass because of his limited mobility related to his knee condition. Dr. Sheps noted that a slight change in the position of the Veteran's head was all that was necessary in order to avoid the head injury which caused his death. The Tribunal finds on the evidence that the Veteran's limited mobility was not of necessity a factor in his moving his head slightly. He could have moved his head without moving his lower limbs. However, the central issue for the Tribunal is the apparent randomness of the path of the shard of glass from a very larger window when hit by a vehicle with some obvious force. We find that the Veteran probably had auditory warning of the vehicle crashing through his fence. Even if the Veteran had visual warning of the vehicle coming towards him, and even if he took evasive action to move out of the direct path of the vehicle, which on the evidence we find he did, nevertheless we find that he had virtually no time to identify the precise direction of the shard of glass in order to avoid being hit by it. Whether the glass hit him or missed him was, we find, a matter of chance.
22.On all the evidence we cannot be reasonably satisfied that any of the Veteran's war-caused disabilities contributed in any way to his fatal injury."
The trial Judge noted that the Tribunal had formulated the question for decision as being whether the Veteran's knee condition "added in some measure to his death" (AB 240). His
Honour continued as follows:
"In my view, having regard to the fact that the [sic] were no eye witnesses to the injury or to the path and impact of the shard of glass, and having regard to the pandemonium and chaos which must have prevailed, as the vehicle smashed through the house, it could be no more than mere speculation to suggest that the injury could have been avoided if the veteran had been more mobile. There was, inherent in the circumstances, a high degree of randomness and unforeseeability. It was the apparent randomness of, and lack of evidence as to the path of the shard of the glass, projected as a result of the impact of the vehicle on the large glassed area, which the Tribunal saw as the central issue.
There is nothing in the evidence to diminish the force of this observation and the fact that whether the glass hit or missed the veteran was on the evidence a pure matter of chance so that it was impossible to determine what, if any, consequences flowed from any lack of mobility arising from the knee condition.
In its conclusion the Tribunal referred to the testimony of Dr Sheps to the effect that a slight change in position of the veteran's head was all that was necessary to avoid the head injury which caused the death. The veteran's limited mobility did not necessarily affect his ability to move his head slightly and avoid injury. Whether this was feasible is a matter of conjecture. In any event, it was open to the Tribunal to take into account that the veteran could possibly have moved his head without moving his lower limbs so as to avoid the glass. Nevertheless, these possibilities reinforce the elements of chance and unforeseeability surrounding the circumstances of the veteran's death. There was, in my opinion, ample evidence on which the Tribunal could reasonably have reached its conclusion that the death of the veteran did not arise out of, or was not attributable to war service.
Accordingly, I am not persuaded that there was any error of law in this matter."
We think that on a fair reading of its reasons for decision, the Tribunal did consider "whether the veteran's lack of mobility was the proximate cause of the veteran's death" (fourth ground of appeal). Similarly, we think that a fair reading of the learned trial Judge's judgment shows that his Honour did not lose sight of the fact that the primary factor was whether the lack of mobility was a cause of the Veteran's being in the place where he was when he was killed by the shard of glass (see fifth ground of appeal).
The appellant did not point to any evidence suggesting, for example, that the Veteran had been moving to a place of safety behind a protective wall or doorway, which, it might have been open to infer, he was incapable of reaching because of his knee disability. So far as the evidence reveals, the Veteran may have been moving into the path of the shard of glass or further into its path, or further but not completely out of its path. The evidence permits us only to reach the obvious conclusion that the Veteran's head was in the path of the shard of glass at the point of impact. All else is "mere speculation" as the trial Judge observed. Obviously, the location of a human body anywhere is in part a function of the mobility of the body, but it is an altogether different thing to say that the Veteran's restriction of mobility caused him to be where he was and not somewhere else at the moment of impact.
In our view, no error is shown in the reasoning of the Tribunal or of the trial Judge in the present respect.
CONCLUSION
The appeal will be dismissed and the appellant will be ordered to pay the respondent's costs.
I certify that this and the preceding 18 pages are a true copy of the Reasons for Judgment of the Honourable Justices Jenkinson, O'Loughlin and Lindgren.
Associate:
Dated:20 September 1996
Heard: 16 September 1996
Place: Sydney
Decision: 20 September 1996
Appearances: Mr A T McInnes QC with Mr A L Hill of counsel, instructed by Kenneth Harrison solicitor, appeared for the appellant.
Mr J S Hilton SC with Ms R M Henderson of counsel, instructed by the Australian Government Solicitor, appeared for the respondent.
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