RAYMOND KEMP and REPATRIATION COMMISSION

Case [2012] AATA 207

[2012] AATA 207 

Division VETERANS' APPEALS DIVISION

File Number

2010/5314

Re

RAYMOND KEMP

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal

Senior Member K Bean
Lt Col R Ormston (Rtd) (Member)
Date 12 April 2012
Place Adelaide

The decision under review is varied so as to provide that Mr Kemp is entitled to receive 100% of the general rate of disability pension from 11 June 2006.

........................[sgd]................................................

Senior Member K Bean

CATCHWORDS

VETERANS' ENTITLEMENTS – Rate of disability pension – Special rate – Whether factors other than accepted disability contributed to veteran's cessation of remunerative work – Prior decision to resign and reluctance to request alternative duties contributed to veteran's cessation of work – Alone test not satisfied but entitlement to 100% of general rate of pension established – Decision under review varied.

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) ss 19(a), 24(1) & (2)

CASES

Repatriation Commission v Connell [2011] 197 FCR 228

Cavell v Repatriation Commission (1988) 9 AAR 534
Forbes v Repatriation Commission (2000) 101 FCR 50

REASONS FOR DECISION

Senior Member K Bean
Lt Col R Ormston (Rtd) (Member)

12 April 2012

INTRODUCTION

  1. The applicant, Mr Kemp, served in the Royal Australian Navy (the Navy) for twenty years between 1973 and 1993.  During his time in the Navy he served mainly in submarines as an electrician, rising to the rank of Chief Petty Officer.

  2. During his service, Mr Kemp experienced a number of extremely traumatic events, including one in which the main vents on a submarine he was in were not closed properly, resulting in the vessel taking on water and diving uncontrollably.  As a consequence of these experiences, Mr Kemp suffers the condition of post-traumatic stress disorder (PTSD) which has been accepted as war-caused.  He also suffers from a number of other war-caused conditions, including hypertension and sleep apnoea, and has been in receipt of a service disability pension for a number of years. 

  3. In March 2010 the Repatriation Commission increased his pension to 90% of the general rate with effect from 11 June 2006 but declined to increase it further, and the Veterans’ Review Board (VRB) subsequently affirmed that decision. 

  4. However on 8 December 2010, Mr Kemp applied to this Tribunal seeking review of the decision of the Commission, as affirmed by the VRB, and giving rise to these proceedings.  Mr Kemp contends that he is entitled to the special rate of pension or, in the alternative, that he should receive 100% of the general rate of pension.

    LEGISLATION AND ISSUES

  5. In broad terms therefore, the issues before us are as follows:

    (a)whether Mr Kemp should receive 100% of the general rate of pension; and

    (b)whether Mr Kemp is entitled to the special rate of pension pursuant to s 24 of the Veterans’ Entitlements Act 1986 (the VE Act).

  6. Prior to the hearing, it was conceded by the respondent that with effect from 11 June 2006, Mr Kemp was entitled to the general rate of pension.  As we also accept that he is entitled to 100%…

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Details
AGLC
RAYMOND KEMP and REPATRIATION COMMISSION [2012] AATA 207
Case
[2012] AATA 207
Decision Date

CaseChat Overview and Summary

The case of Raymond Kemp and the Repatriation Commission revolves around the determination of the rate of disability pension for Mr Kemp, who served in the Navy from 1973 to 1993 and subsequently worked for the Australian Submarine Corporation (ASC) until 1994. Mr Kemp, who contracted Post-Traumatic Stress Disorder (PTSD) during his service, sought to establish his entitlement to a special rate of disability pension. The crux of the dispute was whether factors other than his accepted disability contributed to his cessation of remunerative work. The Federal Court of Australia was tasked with deciding this matter.

The court had to determine if Mr Kemp's cessation of work was solely attributable to his service-related disabilities, as required by the "alone" test. It was established that Mr Kemp had resigned from his position at ASC, and there was evidence suggesting he had been reluctant to request alternative duties that might have accommodated his disabilities. The court needed to assess whether these factors negated his entitlement to the special rate of pension. Furthermore, the court had to decide the appropriate rate of pension if the "alone" test was not satisfied.

In its decision, the court found that Mr Kemp did not satisfy the "alone" test for the special rate of pension because factors other than his accepted disability contributed to his cessation of work. However, the court concluded that Mr Kemp was entitled to 100% of the general rate of pension due to the significant impact of his service-related disabilities. Consequently, the decision under review was varied to reflect this outcome.

The final orders of the court were that the decision under review is altered to provide that Mr Kemp is entitled to receive 100% of the general rate of disability pension from 11 June 2006. This decision recognises the impact of Mr Kemp's service-related disabilities while also considering the contributing factors to his cessation of work.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We propose to first discuss the most salient aspects of the evidence before us, before turning to our analysis of this issue.The Evidence There was no factual dispute between the parties as to the employment undertaken by Mr Kemp and the circumstances in which that employment ended. As we have alluded to above, Mr Kemp gave evidence that he had enlisted in the Navy in January 1973, when he was eighteen years of age, and served in the Navy until January 1993. He said that from approximately May 1992 he was on long leave from the Navy prior to his discharge, and in May 1992 he commenced work with the Australian Submarine Corporation (ASC). Mr Kemp said that throughout his Navy career he worked in submarines as an electrician, rising to the rank of Chief Petty Officer. As we have also referred to above, in the course of his Naval service he experienced a number of traumatic and life threatening events whilst on board submarines, resulting in him contracting PTSD. He said that one of the effects of this condition was that he would suffer symptoms of PTSD when required to enter submarines, including compartments of submarines known as “tanks”, whilst the submarines were under construction or undergoing maintenance. Mr Kemp said that when he commenced working with the ASC in May 1992 he was working as a Trials Officer in the Trials Group writing “Set to Work” and “Harbour Release Test” documents. He said this work essentially involved paperwork in an office working from plans, drawings and manuals. In his statement he said he had no significant problems with any of his accepted disabilities during this period of time[4]. [4] Exhibit 2. However in May 1994 he was moved to the more responsible position of Electrical Supervisor in the “Set to Work Group” because of his previous submarine experience. This position involved working on various submarine systems including battery systems, domestic services, sewerage, combat systems and internal and external communications. He had a crew of approximately ten to twenty people working for him and he said this position involved some actual work on submarines. In his statement he estimated that approximately 40% of this job involved doing work in and around submarines. Mr Kemp explained that while he was carrying out this job he began to have some problems which he now associates with his accepted condition of PTSD. He said:“I was required on some occasions to get into tanks (component areas of submarines of varying sizes).This caused me some difficulty on occasions.I felt anxious and worried about confined spaces. The size of the tanks varied. A ballast tank for example was approximately the size of a small room.Some smaller tanks were the size of a toilet cubicle.The various tanks had a variety of functions including fuel tanks, battery compartments and sullage tanks. The smaller tanks in particular caused my distress and anxiety.”[5][5] Exhibit 2. Mr Kemp also explained that he had problems with some of the other work on the submarines, including the requirement to perform vacuum tests. He said this required the atmosphere in the submarine to be reduced to create a vacuum and he explained:“Being in a submarine during this test causes me great stress if the temperature rises and reminds me of the two incidents on HMAS Orion during my RAN service where a vacuum was created and people collapsed due to lack of oxygen.”[6] [6] Exhibit 2.

Decision

Reasons for decision

As we have concluded that Mr Kemp did not satisfy the “alone” test at any time during the assessment period, it follows that we are not satisfied that he is qualified to receive disability pension at the special rate. For the reasons we have indicated above however, we have decided that the decision under review should be altered such that he is entitled to receive 100% of the general rate of pension from 11 June 2006.DECISION The decision under review is varied so as to provide that Mr Kemp is entitled to receive 100% of the general rate of disability pension from 11 June 2006.

Ratio Decidendi

Legal Principle Established

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