Re Jensen and Repatriation Commission
[2005] AATA 474
•26 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 474
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/443
VETERANS' APPEALS DIVISION
Re: IAN BROUGHTON JENSEN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr E. Fice, Member
Date: 26 May 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
VETERANS' AFFAIRS – ischaemic heart disease – diabetes mellitus – hypertension – war-caused – cigarette smoking – alcohol consumption – operational service – one factor in a SoP referring to another factor in a different SoP – experiencing a stressor – subjective element
Veterans' Entitlements Act 1986
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Collier and Repatriation Commission [2004] AATA 111
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Law (1980) 31 ALR 140
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
26 May 2005 Mr E. Fice, Member
1. On 25 July 2003, a delegate of the Repatriation Commission refused Mr Jensen’s claim for a disability pension in respect of incapacity caused by ischaemic heart disease, diabetes mellitus and hypertension on the grounds that those conditions were not related to his service. On 23 March 2004, the Veterans’ Review Board (“VRB”) affirmed the decision of the delegate of the Repatriation Commission. Mr Jensen, pursuant to s 175 of the Veterans’ Entitlement Act 1986 (“the Act”), seeks review of the decision made by the VRB.
2. Ms D. Coombs of counsel appeared on behalf of Mr Jensen. Mr G. Purcell of counsel, and subsequently Mr E. Nyhof, an advocate with the Department of Veterans’ Affairs (the Department), appeared for the Repatriation Commission. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T12), together with 4 exhibits tendered by the applicant (Exhibits A1 to A4) and 17 exhibits tendered by the Repatriation Commission (Exhibits R1 to R17).
BACKGROUND
3. Mr Jensen served in the Royal Australian Navy^ ("the Navy") from 6 May 1967 to 5 May 1987. He had operational service, as defined by s 6C of the Act, in the course of serving on board HMAS Parramatta from 15 May 1971 to 24 May 1971. Mr Jensen also rendered defence service as defined in Part IV of the Act from 7 December 1972 to 5 May 1987.
4. Immediately prior to his operational service, when Mr Jensen was serving on board HMAS Melbourne, he became engaged to be married. He was then suddenly transferred to HMAS Parramatta on 15 March 1971, having been given little warning of that transfer, which occurred over one weekend. He claims that the transfer put an end to his engagement and it caused him considerable stress. HMAS Parramatta sailed for a deployment to the Far East on the following day, 16 March 1971, transiting via Townsville, Darwin and the Singapore Exercise Areas before arriving at Singapore Naval Base on 31 March 1971.
5. In company with HMAS Duchess, HMAS Parramatta departed from the Singapore Exercise Areas on 21 May 1971 and set course to rendezvous with HMAS Sydney. HMAS Sydney had departed Townsville on 13 May 1971 with the 4th Battalion Royal Australian Regiment and their equipment embarked, on a resupply run to Vung Tau in the Republic of South Vietnam. HMAS Parramatta and HMAS Duchess rendezvoused with HMAS Sydney on 21 May 1971. HMAS Parramatta, after replenishing with furnace fuel oil from RFA Olwen, carried out a jackstay transfer of stores and personnel with HMAS Sydney. After an uneventful overnight passage, the three ships anchored off Vung Tau at 0630 hours on Saturday, 22 May1971. HMAS Parramatta departed Vung Tau at 1100 hours on Saturday, 22 May 1971 bound for Subic Naval Base in the Philippines, arriving on 24 May 1971.
6. According to Mr Jensen, the experience of escorting HMAS Sydney into an operational area caused him to be confronted with fears for his own safety which, in turn, caused him to increase his cigarette smoking and his consumption of alcohol. Those habits caused him to suffer the medical conditions for which he seeks a disability pension.
THE PARTIES CONTENTIONS
7. Mr Jensen claims that, although he commenced smoking cigarettes on a regular basis after enlisting in the Navy, he was smoking at the rate of about 10 cigarettes per day immediately prior to his operational service in South Vietnam. He contends that, although the breaking off of his engagement upon his posting to HMAS Parramatta caused him stress, his cigarette smoking did not change at that stage. However, Mr Jensen claims that, during the jackstay transfer between HMAS Parramatta and HMAS Sydney, during which he was able to observe men and equipment on the deck of Sydney preparing for a tour in Vietnam, his own vulnerability became apparent to him and he was confronted with fear for his own safety and what he might encounter at Vung Tau. He claims that as a consequence of this realisation, his cigarette smoking increased to about 25 to 30 cigarettes per day. Mr Jensen regarded himself as a social drinker of alcohol prior to his period of operational service, drinking on average not more than 4 glasses of beer on approximately 3 occasions per week. However, he said he started drinking heavily immediately after his operational service, when HMAS Parramatta anchored at Subic Bay. He contends that his excessive drinking was brought on in an attempt to relieve the stress which had been built up as a result of his time in Vietnam. Mr Jensen further contends that he consumed alcohol heavily from that time onwards, drinking on a daily basis when he was able, and drinking to the point of intoxication when he did consume alcohol. He claims that he was drinking up to about 12 small cans of beer per day.
8. Mr Jensen contends that other than on a number of occasions when he tried, unsuccessfully, to quit smoking, he continued to smoke at the rate of about 25 to 30 cigarettes per day after his operational service until 1999. He also continued to drink alcohol at the rate of about 12 small cans of beer per day until about 1999.
9. The Repatriation Commission contends that one of the real issues in this matter is the credibility of Mr Jensen’s evidence, based on prior statements made by him which appear to be inconsistent with the available evidence. The prior inconsistent statements involve his smoking history and alcohol consumption as well as the effect that his operational service had on him. The Repatriation Commission also contends that Mr Jensen may have exaggerated the dangers of serving in Vung Tau harbour and that he attempted to “ gild the lily” in his statements.
CONSIDERATIONS
10. The Repatriation Commission has accepted the diagnosis of all three conditions for which Mr Jensen seeks a disability pension. However, it rejects Mr Jensen’s claim that the medical conditions from which he suffers were caused by his operational service. Mr Jensen relied solely on his operational service as the cause of his disabilities.
11. In the case of operational service, the standard of proof which must be applied by the Tribunal is set out in s 120 of the Act, which relevantly provides :
(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 a subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect to 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; or
(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.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5) …
(6) …
12. Because Mr Jensen’s claim arises on or after 1 June 1994, s 120A of the Act applies to his claim. Insofar as it is relevant, s 120A provides:
(1) …
(2) …
(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.
(4) …
12. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was fully explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (at 97-98). There, Beaumont, Hill and O’Conner JJ said:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
13. There is no dispute that Mr Jensen had operational service when HMAS Parramatta was involved in escort duties into Vung Tau harbour in 1971.
14. Mr Jensen’s evidence was that he was not a regular smoker prior to his enlistment in the Navy, although he had experimented with smoking at school. He said that he started smoking cigarettes on a regular basis after his enlistment, but smoked at the rate of about 10 cigarettes per day prior to his operational service. Mr Jensen’s sister, Ms Donna Janette Stone, gave evidence that she believed that Mr Jensen had the occasional cigarette before his enlistment. She did not recall him actually smoking but did have a recollection of smelling tobacco on him. She said that Mr Jensen did not smoke cigarettes at home for fear of upsetting their parents. She did not believe that Mr Jensen was smoking very much before enlistment.
15. Mr Jensen also said in evidence that he was a social drinker of alcohol prior to his operational service. He said that he was consuming alcohol on about three occasions per week on average; and on each of those occasions he consumed not more than about four glasses of beer. That evidence is supported by Ms Stone, who said that Mr Jensen was a light social drinker of alcohol prior to enlistment.
16. Shortly prior to being transferred to HMAS Parramatta in 1971, Mr Jensen met his girlfriend, who lived in South Australia, and they were engaged to be married. Within a couple of days of being told of the transfer, he boarded HMAS Parramatta on a Friday afternoon. On the following Monday, HMAS Parramatta set sail for the Far East. He said that the transfer to HMAS Parramatta put an end to his wedding plans because it caused disagreement with his girlfriend. Although that caused him stress, he said that it did not alter his smoking habit at that time. He said nothing about his alcohol consumption.
17. HMAS Parramatta left Sydney on 16 March 1971 for Singapore via Townsville and Darwin. After conducting manoeuvres as described in paragraph 5, HMAS Parramatta and HMAS Duchess joined HMAS Sydney at 0700 hours on Friday, 21 May 1971 and RFA Olwen joined the convoy about two hours later. After HMAS Parramatta had replenished with furnace fuel oil in the morning, it carried out a jackstay transfer of stores and personnel with HMAS Sydney during the afternoon. According to Mr Jensen, in the course of that jackstay operation, when the two vessels were travelling side by side, he observed equipment on the deck of HMAS Sydney including trucks, vehicles, armoured cars and the like. He also saw soldiers exercising on deck and, according to Mr Jensen, the reality that he was now going to a war zone “came home to him”. He said it caused him to be confronted with fears for his own safety. In his oral evidence he also said that he had concerns about and was fearful of mines in Vung Tau harbour.
18. The passage to Vung Tau was uneventful and the three ships anchored off Vung Tau harbour at 0630 hours on Saturday, 22 May 1971. According to Mr Jensen, HMAS Parramatta remained in the harbour for 24 hours. He said that his stress levels were high because of the threat of mines. He saw a South Vietnamese patrol boat on which the sailors appeared to be very casual, only half in uniform and not looking at all serious about the task in which they were engaged. He said that the threat was real and that there could have been mines in the area. He said that the vessel was closed up and on stage two alert. Mr Jensen conceded that he did not experience any specific incident or threat to his life during the time he was in the operational area. However, because of the increased stress that he experienced, he said that his smoking immediately increased to about 25 to 30 cigarettes per day which, he said, helped soothe his nerves and allowed him to relax. After HMAS Parramatta left Vung Tau, it sailed to Subic Bay where Mr Jensen said he could not wait to get off the ship to “hit the bars” and to drink at Olongapo City, a city comprised essentially of bars established on the outskirts of Subic Bay Naval Air Station. He said he drank heavily, at least 20 to 30 beers per night, until he could drink no more. This happened for 2 to 3 days while the ship was anchored at Subic Bay.
19. Mr Jensen’s evidence was that, save for some short-lived occasions when he tried to quit smoking, he continued to smoke at the rate of about 25 to 30 cigarettes per day from the time of his operational service until 1999. He also continued to drink alcohol at the rate of about 12 small cans of beer per day until 1999. He said in evidence that when he was diagnosed with ischaemic heart disease by Dr Warren, in about 1999, he gave up smoking and that he was not a smoker at present. He also said that he did not drink as much as he used to, since he cut down in 1999, drinking about 3 times per week and about 6 pots of beer at each drinking session. He confirmed that he had not had a cigarette for the past 3 years.
20. In light of Mr Jensen’s evidence, there can be no doubt that the material before the Tribunal points to a hypothesis which connects Mr Jensen’s claimed diseases with his operational service.
21. The Repatriation Medical Authority, pursuant to s 196B(2) of the Act, has determined a Statement of Principles ("SoP") concerning hypertension. At the date of the hearing of this matter, the current SoP was Instrument № 35 of 2003 as amended by № 3 of 2004. The amending Instrument, № 3 of 2004, relevantly amended paragraph 5(b) of Instrument № 35 of 2003. Paragraph 5(b) of Instrument № 35 of 2003 sets out the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting hypertension with the circumstances of a persons relevant service. It provides:
(b)consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of clinical onset of hypertension;
22. The amended paragraph 5(b) provides:
consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less then an average of 200 grams per week of alcohol;”
23. Mr Jensen relies on factor 5(b) as it is stated in Instrument № 35 of 2003. On the other hand, the Repatriation Commission submits that the relevant Instrument which must be satisfied is № 35 of 2003 as amended by № 3 of 2004. However, the amended paragraph 5(b) appears to be less favourable to Mr Jensen than is the original paragraph 5(b) in Instrument № 35 of 2003. The reason is that Mr Jensen gave evidence that his alcohol intake from about June 1999 reduced substantially and that his current consumption is about 6 pots (10 ounces) of light beer on about 2 nights per week. Alcohol, in Instrument № 35 of 2003, is said to be measured by the alcohol consumption calculations using the Australian standard of 10 grams of alcohol per standard alcoholic drink. However, paragraph 5(b) in the amending Instrument, № 3 of 2004, is not particularly clear as it does not expressly state any time frame for a reduction in the consumption of alcohol to less than an average of 20 standard drinks per week. It could be read as meaning any time after the clinical onset of hypertension. In fact, it appears the Repatriation Commission does interpret the SoP in that way, and it was submitted on its behalf that Mr Jensen cannot satisfy factor 5(b) for that reason.
24. However, paragraph 5(b) of Instrument № 35 of 2003 is differently worded. It does not set a minimum period for consumption of alcohol prior to the clinical onset of hypertension, although it does retain the phrase “which cannot be decreased to less then an average of 200 grams per week". Given the way in which that paragraph is phrased and punctuated, in my view, it is impossible to make any sense of it. It seems to require a consumption of an average of at least 200 grams of alcohol per week at the time of clinical onset of hypertension, and an inability to decrease that consumption to less than an average of 200 grams per week, also at the time of clinical onset of hypertension. It seems to me that amending Instrument № 3 of 2004 has done little to clarify what was intended. The Tribunal commented to that effect in Re Collier and Repatriation Commission [2004] AATA 111 at paragraph 12, where Deputy President Estcourt said that paragraph 5(b) is confusing and “just does not make sense”. That is because one cannot determine whether the inability to reduce alcohol intake must be present before or after the clinical onset of hypertension. Therefore, although the Repatriation Commission submits that Mr Jensen does not meet the part of paragraph 5(b) dealing with the inability to decrease alcohol consumption to less then an average of 200 grams per week, because the legislation is intended to be beneficial to applicants, I am not prepared to find that Mr Jensen’s hypothesis fails to fit within the template found in the relevant SoP. Accordingly, his hypothesis in respect of hypertension is, in my opinion, a reasonable one.
25. Mr Jensen also relies on his increase in drinking and smoking following his operational service as the basis for his claim in respect of ischaemic heart disease. The material before the Tribunal does point to a hypothesis connecting Mr Jensen’s ischaemic heart disease with the circumstances of his operational service.
26. There is in force a SoP dealing with ischaemic heart disease. The relevant Instrument is № 53 of 2003, as amended by № 9 of 2004. The facts relied on by Mr Jensen to connect his ischaemic heart disease with the circumstances of his operational service are those set out at paragraphs 5(a), 5(b) and 5(e). In the course of submissions, Mr Jensen also relied on factor 5(f), for the reason that it was unclear as to when Mr Jensen in fact ceased smoking. Dr Graeme Sloman, consultant cardiologist, in a written report dated 31 March 1998, noted that Mr Jensen gave up cigarette smoking in 1988. However, Mr Jensen said in evidence that he continued to smoke at the rate of 25 to 30 cigarettes per day from the time of his operational service until about 1999. It is not disputed that the clinical onset of ischaemic heart disease was in about July 1999.
27. The relevant factors relied on by Mr Jensen provide as follows:
5. …
(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or
(b)suffering from diabetes mellitus before the clinical onset of ischaemic heart disease; or
(c)…
(d)…
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less then five pack years of cigarettes or the equivalent thereof, in tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)smoking at least five pack years but less then twenty pack years of cigarettes or the equivalent there of, in tobacco products, and the clinical onset of ischaemic heart disease has occurred within fifteen years of cessation; or
(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products before the clinical onset of ischaemic heart disease; or
(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease;
…
28. According to Professor Richard Harper, consultant and interventional cardiologist, the clinical onset of Mr Jensen’s hypertension was on 12 May 1981, when Lasix was prescribed for a blood pressure reading of 150/110. Given that it is not disputed that the clinical onset of Mr Jensen’s ischaemic heart disease was in about July 1999, factor 5(a) will be satisfied provided that the criteria set out in the SoP for hypertension are met (see paragraph 7 of instrument № 53 of 2003). As I have found that Mr Jensen’s hypothesis regarding hypertension is a reasonable one, it follows that his hypothesis regarding ischaemic heart disease must also be reasonable.
29. However, factor 5(b) cannot be met. Mr Jensen’s evidence was that the clinical onset of his diabetes mellitus occurred on 15 June 2001. That is clearly after the clinical onset of his ischaemic heart disease.
30. Mr Jensen gave evidence that he ceased smoking in about 1999. There was much controversy about this aspect of the evidence and I deal with that below. Suffice to say that there was material before the Tribunal which indicated that Mr Jensen was smoking at least one packet of tailor‑made cigarettes per day for a period of one calendar year, during the period prior to clinical onset of ischaemic heart disease. In my opinion, Mr Jensen also satisfies this factor.
31. Mr Jensen relies on the increase in his cigarette consumption following operational service to found his claim for diabetes mellitus. There is in force a SoP concerning diabetes mellitus, the relevant Instrument being № 11 of 2004. Mr Jensen relies on paragraph 5(c) which provides:
5(c)in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation;
32. Mr Jensen’s evidence is that he was diagnosed by Dr S. Tan as suffering type 2 diabetes in about June 2001. Given that Mr Jensen’s evidence is that he smoked at least one packet of 20 cigarettes per day following his operational service up to 1999, it appears that Mr Jensen’s tobacco consumption does fit the template established by paragraph 5(c) of the SoP concerning diabetes mellitus. Accordingly, Mr Jensen’s hypothesis regarding diabetes mellitus must be a reasonable one.
33. In its amended submissions, the Repatriation Commission referred the Tribunal to paragraph 7 in the SoPs supporting ischaemic heart disease and hypertension. It was submitted that, because Mr Jensen relies upon excessive alcohol consumption to satisfy those SoPs, then he must also be able to satisfy the factors which must exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of his relevant service. However, in my opinion, that submission is misconceived. Paragraph 7 of the SoPs for ischaemic heart disease and hypertension (which are identical) only apply if a relevant factor applies and that factor refers to an injury or disease in respect of which there is a SoP (“the second SoP”). It is only then that the Tribunal must examine the factors set out in the second SoP that applies to that injury or disease in order to determine whether the hypothesis fits within the "template". It is correct to say that Mr Jensen relies on the presence of hypertension before the clinical onset of ischaemic heart disease to establish a reasonable hypothesis concerning that claim. Therefore, according to paragraph 7 of the SoP he must establish one of the factors which apply to the SoP dealing with hypertension in order to satisfy the requirements of the SoP dealing with ischaemic heart disease. However, the factor upon which Mr Jensen relies to support his hypothesis regarding hypertension only refers to the consumption of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week of alcohol at the time of clinical onset of hypertension. There is no reference in the SoP dealing with hypertension to alcohol dependence or alcohol abuse. It appears that the Repatriation Commission has assumed that the consumption of the stated quantity of alcohol for that period constitutes alcohol dependence or alcohol abuse. However, in my opinion, that is not permissible. Paragraph 7 of the SoP would only apply if one of the factors which must exist before it can be said that hypertension is connected with the relevant service is alcohol dependence or alcohol abuse. That is not the case and therefore that submission cannot be accepted.
34. Given that I have found that reasonable hypotheses have been raised connecting Mr Jensen’s claimed conditions with either his smoking or drinking, the principal issue remaining is whether the Tribunal can be satisfied beyond reasonable doubt that the facts which underpin those hypotheses can be established. As the High Court said in Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 1‑2):
…(2) If a reasonable hypothesis is established, sub-s. (1) of section120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond a reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
Smoking
35. Mr Jensen’s evidence was that he was not a regular cigarette smoker prior to his enlistment in the Navy, although he had experimented with smoking at school. He said that he commenced smoking on a regular basis after enlistment and he smoked at the rate of about 10 cigarettes per day until immediately prior to his operational service in May 1971. However, that appears to be an understatement as his sister, Ms Stone, said that Mr Jensen did not smoke at home for fear of upsetting their parents. She also said that Mr Jensen did smoke “a bit”, although not at home.
36. Mr Graham Banner Lee, who gave evidence on behalf of Mr Jensen, said he first met him in 1972 after he was transferred from HMAS Parramatta to HMAS Cerberus. At that time, Mr Lee said Mr Jensen was a heavy smoker, smoking at the rate of about two to three packets of cigarettes per day.
37. Mr Jensen’s evidence was that his smoking increase was caused by the stress he experienced going into an operational zone. This is despite the fact that, in his evidence to the VRB, Mr Jensen said that not much happened in Vung Tau. The history taken by Dr Peter Graff, consultant psychiatrist, also indicates that Mr Jensen told him that “the day he spent in the actual war-zone on 22 May 1971 was not particularly eventful”. Despite that statement, the evidence discloses that Mr Jensen has attempted to exaggerate the dangers associated with his operational service. Before the VRB, Mr Jensen referred to the fact that other sailors in the Navy had been killed and ships had been shelled off the coast of Vietnam, although he admitted that nothing much happened at Vung Tau. He said that getting into and out of Vung Tau was more dangerous than the time spent there. He insisted that HMAS Parramatta was in the area for 10 days and spent at least 24 hours in Vung Tau harbour. The ship’s log, which was in evidence, tells quite a different story. From 15 May to 22 May 19971, HMAS Parramatta was involved in exercises with friendly vessels in the mid‑South China Sea, some considerable distance away from the Vietnam coast. After HMAS Parramatta and HMAS Duchess joined HMAS Sydney, they were involved in an uneventful overnight passage and the 3 ships anchored off Vung Tau harbour at 0630 hours on Saturday, 22 May 1971. The ship’s log records it this way:
After an uneventful overnight passage the three RAN ships anchored off Vung Tau at 0630H Saturday, 22 May. The ship remained in operation Awkward state 2 whilst at anchor, although the de-escalation of the Vietnam war was visibly demonstrated by the small number ships in the Vung Tau anchorage and the single lethargic Vietnamese patrol boat operating in the area, inspecting small craft, with guns covered and crew half dressed.
38. The Parramatta’s log then records that the ship sailed from Vung Tau harbour at 1100 hours on Saturday, 22 May and, after an uneventful passage, was secured at Subic Naval Base at 1000 hours on Monday, 22 May 1971. HMAS Parramatta was in Vung Tau harbour for a total of 4½ hours and not a full day as claimed by Mr Jensen.
39. In his evidence to the VRB, Mr Jensen made no mention at all of any concerns regarding mines which might provide a hazard to ships entering or leaving Vung Tau harbour. At the hearing of this matter Mr Jensen agreed that he raised the issue of danger from mines for the very first time.
40. At the VRB hearing, Mr Jensen raised the issue of sailors being killed and injured on board Australian naval vessels off the coast of Vietnam. The Writeway report prepared by Mr. John C. Macdonald, a retired captain with the Navy, refers to two vessels, HMAS Hobart and HMAS Perth, which came under fire between 1967 and 1968. HMAS Hobart was, on 17 June 1968, hit by friendly fire which resulted in the death of two Australian sailors. However, those patrols, which were part of operation Sea Dragon, were conducted off the coast of North Vietnam, that is, north of the demilitarised zone. That is a very long distance away from Vung Tau which, of course, is in the south of South Vietnam. In any event, by 1971, no ships were operating off the coast of North Vietnam. Nevertheless, Mr Jensen suggested to the VRB that he was not fully aware of the role that HMAS Parramatta would play in the operational area and he said that there were ships on the gunline and that there were destroyer escorts, rendezvous with submarines and “all sorts of things going on”. Clearly, these are events that happened years prior to HMAS Parramatta escorting HMAS Sydney into Vung Tau harbour.
41. Mr Jensen’s propensity to exaggerate was graphically illustrated by his account of an incident he recited to Dr Graff, which occurred in 1967 when he was serving on board HMAS Queenborough. According to Mr Jensen, there was a boiler-room explosion and one of his friends was severely burnt and killed. He told Dr Graff that he volunteered to go down with a stretcher party to retrieve the body and he found it literally "melted down". Although Mr Jensen does not rely on that incident as a cause of his smoking and alcohol consumption, he says that it was a very traumatic experience for him. However, Mr Macdonald, having obtained an extract from the Board of Inquiry into that incident, summarised its findings in his report and it is clear that Mr Jensen’s name does not appear at all. Furthermore, the body of the sailor killed was not melted down as he said; but when it was recovered from the boiler room, mouth to mouth resuscitation was given but the sailor was unable to be revived. It appears that Mr Jensen had nothing whatsoever to do with that incident.
42. There are a number of documents after 1971, in which Mr Jensen has recorded his smoking history.
43. In Mr Jensen's smoking questionnaire, lodged on 17 September 2001 with the Department, he states that he first started smoking cigarettes on a regular basis in 1971. He stated that at that time he regularly smoked 10 cigarettes per day. In response to the questionnaire dealing with a change in his smoking habit over time, he stated that he changed his smoking habit in March 1971 when he was smoking 20 cigarettes per day. Mr Jensen also stated that the reason for the change was "worry of going to war". It is clear that that date precedes his operational service. In fact, the reason stated for his increased smoking was not the operational service itself, but rather the thought of going on operational service. In its reasons for decision following the hearing conducted on 27 September 2002, the VRB said (at pp6‑7):
…
The final difficulty in the path of the claim is that there is no consistent medical smoking history that would support the veteran having a smoking habit of 20 cigarettes per day so as to meet the relevant factor. In the absence of knowing the questions posed to Mr Jensen about his past smoking by various doctors, it is difficult to be sure how the answers where(sic) framed. However it seems safe to assume that the examining doctors did not make up this information but wrote it down on the basis of what they where(sic) told by the veteran. It is quite possible that errors can occur in a taking of a medical history. However, the fact that almost identical information appears to have been given to several different doctors 10 years apart makes such a prospect of error most unlikely. When he started to smoke back on joining the RAN in 1967 he stated that he smoked 10 cigarettes per day. In 1986 he told the doctor that he smoked about 12 cigarettes per day. In 1987 he told a doctor that he smoked about 6 cigarettes a day. In 1988 he told a doctor that he smoked 10 cigarettes per day. In 1998 he told a doctor that he smoked 10 cigarettes per day. There is a consistency in the smoking history of about 10 cigarettes a day that Mr Jensen has given to a number of different doctors on a number of occasions over many years.
44. Searching through the documents in evidence, it is possible to find further discrepancies in statements made by Mr Jensen regarding his smoking history. For example, in a statement made by Mr Jensen in support of a claim for treatment and pension for severe pain and high blood pressure on 30 November 1987, Mr Jensen indicated that he did not smoke at that time. He noted that he started smoking in 1967 and stopped smoking in 1986. He said his daily cigarette consumption was 20 cigarettes. When asked to indicate whether his smoking habits had changed greatly at any time, he placed an "X" in the “No” box. In a medical record dated 18 January 1978, it is recorded that he "smokes ten cigarettes / day".
45. Mr Jensen, in hearings before the VRB, said that the reason for understating his cigarette consumption in 1978 was because that was said in the course of a re-engagement medical and he was interested in continuing in his service. Because his blood pressure was high at that time, he was of the view that his offer to re-engage would not be accepted. He also said that doctors did not like smokers and that “a doctor would not even treat you in a hospital if you told them you smoked”. He said that he did not want any factors stopping him from re-engaging in the Navy and if he had to downplay his smoking, he did. However, his service records make it clear that, at least on one occasion, he had changed his mind about re-engagement in 1975.
46. There are also considerable discrepancies in the evidence as to when Mr Jensen ceased to smoke. Other than references to him ceasing in 1986, Mr Jensen claims that he ceased smoking in 1999. However, Mr Lee gave evidence that when he met Mr Jensen early in 2004, he was still smoking. Mr Keith Roberts, who has known Mr Jensen since 1987, said in a signed statement dated July 2004 that Mr Jensen was a reformed smoker.
47. Because of the contradictory statements made by Mr Jensen regarding his smoking, and his tendency to exaggerate the dangers involved in the course of his operational service, I can have no confidence at all that there is any connection between Mr Jensen’s operational service and an increase in his smoking.
Alcohol
48. Mr Jensen said that he did not drink alcohol prior to joining the Navy but, after completing six months of training, he was allowed to drink and he only consumed one or two glasses of beer per day. In his evidence, Mr Jensen said that prior to operational service he was a social drinker, consuming alcohol on average on about three occasions per week. He said that he was consuming not more than about four glasses of beer on those occasions. He started drinking alcohol heavily immediately after the period of operational service in Vietnam and shortly thereafter, when HMAS Parramatta was anchored at Subic Bay.
49. However, again there is much contradictory evidence regarding Mr Jensen’s drinking. An inpatient record discloses that Mr Jensen was admitted to hospital at HMAS Cerberus on 5 August 1969 suffering from alcoholic gastritis. That incident was recounted to Dr Lester Walton, consultant psychiatrist, who in his report states that Mr Jensen recalled a particular episode of binge drinking at HMAS Cerberus to the point he was hospitalised. When he gave evidence to the Tribunal, he said that a practical joke had been played on him and that his beer had been "spiked" with vodka. He said that he had been the victim of a practical joke. In cross-examination, asked if he had told anybody else that a practical joke had been played on him and that vodka had been put in his beer, he said "no". He agreed that he had not told the VRB and apparently he did not explain that to Dr Walton.
50. In his evidence before the Tribunal, after recounting the boiler room explosion incident on HMAS Queenborough, he was asked whether that incident had an effect on his smoking or drinking. He answered "no". According to the VRB decision of 9 November 1998, Mr de Vlieger, who assisted Mr Jensen at the hearing, said that Mr Jensen told him that he commenced drinking heavily after a boiler room incident in 1967; that he binge drank in port; that he increased his alcohol intake in 1970 when he was stationed on HMAS Melbourne; and that he further increased his drinking when on HMAS Parramatta, which was between February 1971 and 1973. Mr de Vlieger apparently said that Mr Jensen believed that the apprehension of travelling to Vietnam played a part in his drinking habit, as did the service culture during his defence service.
51. Dr Graff, in his statement, recites that Mr Jensen told him that his heavy alcohol use started during the years he was serving in South East Asia, because visits to South East Asian ports were associated with alcohol binges. Apparently, Mr Jensen told Mr. Graff that alcohol abuse was at the root of a number of the problems he experienced over the years including involvement in fights, drunk and disorderly behaviour and the collapse of his first engagement. That of course occurred prior to his operational service.
52. In a written report dated 7 May 1999, Dr James Gardner stated that he was told by Mr Jensen that he drank only moderately and his general health was quite good. This of course is to be contrasted with the evidence of Mr Roberts, who said that around 1987 Mr Jensen was both a heavy smoker and drinker. In fact, Mr Roberts said that his relationship with Mr Jensen deteriorated in 1990 due to Mr Jensen’s excessive drinking and aggressive manner whilst under the influence of alcohol. Mr Linton Soderholm, the president of the Mornington Peninsula Veterans Association, also gave evidence on behalf of Mr Jensen. He met Mr Jensen in late 1985 and developed a friendship with him in 1986. After becoming friends, they drank at the same "bar". He noted that Mr Jensen was a heavy drinker. He also said in evidence that Mr Jensen continues to drink alcohol on about three occasions per week, but that he consumes much less alcohol than he previously did although he does drink to the point of inebriation.
53. On the evidence before me, I cannot accept Mr Jensen’s claim that he started drinking alcohol heavily immediately after the period of operational service. The evidence indicates that his drinking habit was well established prior to that time and it possibly continues even today. Also, given that his operational service was extremely brief and uneventful, it is my opinion that his operational service played no part whatsoever in his excessive drinking.
CONCLUSIONS
54. Mr Jensen’s claim for a disability pension depends upon there being a connection between his operational service and an increase in smoking and alcohol consumption which led to the disabilities for which he claims a pension. According to Mr Jensen, the stress involved in his operational service was at least one factor which caused him to increase smoking and alcohol consumption. The claimed stress of course need not be the sole or dominant cause and it need only be an element of causation (Repatriation Commission v Law (1980) 31 ALR 140).
55. However, the evidence points conclusively to the fact that Mr Jensen's operational service was entirely uneventful and no event which took place in the course of that operational service can be said, on an objective view, to have caused him stress. Ms Coombs directed my attention to the Federal Court decision in White v Repatriation Commission [2004] FCA 633, where the Court was dealing with the presence or absence of a "severe psychosocial stressor". She submitted that there is a subjective element in experiencing a stressor and that is in fact what the Federal Court said in its reasons for decision. However, the Court also said that, at least as far as a SoP is concerned, it embodies both objective and subjective elements.
56. If it is appropriate to apply the reasoning of the Federal Court to Mr Jensen’s case, although Mr Jensen may personally have felt stress in the course of his operational service, objectively viewed, the evidence discloses that there was no stressful event which occurred in the course of his operational service.
57. For the reasons set out above, I am satisfied beyond reasonable doubt that Mr Jensen’s claimed conditions are not war-caused. The decision of the Repatriation Commission should be affirmed.
I certify that the fifty‑seven [57] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr E. Fice, Member
(sgd) Catherine Thomas
Clerk
Dates of Hearing: 17 January 2005
10 February 2005
Date of Decision: 26 May 2005
Counsel for the applicant: Mr D. Coombs
Solicitor for the applicant: Williams Winter
Counsel for the respondent: Mr G. PurcellSolicitor for respondent: Mr E. Nyhof,
Advocacy Section, Department of Veterans’ Affairs
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