Seamons and Repatriation Commission (Veterans' entitlements)

[2023] AATA 3856

Seamons and Repatriation Commission (Veterans' entitlements) [2023] AATA 3856 (24 November 2023)

ReviewNumber:     2019/2751, 2019/2752

Division: VETERANS' APPEALS DIVISION

File Number(s):      2019/2751 & 2019/2752

Re:Andrew Seamons

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:24 November 2023

Place:Sydney

The decision under review is set aside and the matter is remitted to the Respondent for computation of the benefits payable to the applicant, with the direction that the applicant’s conditions of hepatitis C, post-traumatic stress disorder and depression are related to his service under the Veterans’ Entitlements Act 1986 (Cth).

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Deputy President B W Rayment OAM KC

CATCHWORDS

VETERAN’S ENTITLEMENTS – whether conditions are related to service – hepatitis C, post-traumatic stress disorder and depression – Royal Australian Navy – decisions under review set aside and remitted

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

CASES

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

SECONDARY MATERIALS

Statement of Principles concerning Hepatitis C (Balance of Probabilities) (No. 14 of 2018)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

24 November 2023

1. Two reviewable decisions of the Veterans’ Review Board (VRB) dated 3 April 2019 are before the Tribunal for review.

2. The decisions affirmed decisions of the Respondent dated 30 August 2017 and 28 March 2018 that the applicant’s conditions of hepatitis C, post-traumatic stress disorder (PTSD) and depression were not related to his service with the Royal Australian Navy. That service commenced on 1 June 1987 and concluded on 24 August 1995. The earlier decision of the Respondent in 2017 reached similar conclusions about some of the matters discussed in the 2018 decision, so the two reviews have been heard together. The VRB decisions of

   
   

   3 April 2019 are more comprehensive than the earlier decisions and also were given at a time when the Statement of Principles concerning Hepatitis C (Balance of Probabilities) (No. 14 of 2018) was in force. The Tribunal is similarly required to have regard to that statement of principles and other relevant statements of principles.

3. Mr Seamons was diagnosed with hepatitis C while he was still in service in March 1992. The applicant joined the Navy at the age of 27 years and was medically discharged when he was 35. Today he is about 64. He has had two liver transplants, the first in 2013 and the second in 2017. He was very distressed as a result of having contracted the disease and as a result, suffered the two mental health conditions (PTSD and depression). In 1987, when he joined the Navy, he was tested for hepatitis B and human immunodeficiency virus (HIV). These tests were negative.

4. At that time the hepatitis C virus and its genetic structure was not yet discovered and was not announced until 1989. Antibody testing for hepatitis C was rapidly taken up in Australia in 1990, as appears from the report of Dr Flecknoe-Brown, a doctor who has been in a private haematology practice since 1982 and is now a consultant physician and clinical pathologist. He also said that it was not until 1992 that blood donations were routinely tested for the hepatitis C antibodies.

5. Dr Flecknoe-Brown said in his report that while no antibody testing was available in 1987, “he would almost certainly have had liver function tests performed on commencing service.” That enabled Dr Flecknoe-Brown to conclude that it is not likely that the applicant had acquired hepatitis C before he joined the Navy. He described the test for liver function as a fairly simple test and I gather from his evidence that it was regularly done. Such a test would likely have thrown up liver damage, although the cause would need further investigation. I do not understand Dr Flecknoe-Brown to have resiled from the contents of any statement made in his written report.

6. The applicant got a tattoo in Victoria in 1987 or 1988, which was a possible source of the hepatitis C. Dr Flecknoe-Brown, whose evidence impressed me, said that at that time the HIV virus (also spread by blood-to-blood events) would have made tattooists more careful to sterilise their needles after use, and while one means of spreading the virus was in a tattoo studio, it was a less likely cause in his opinion. His comments in chief and in cross-examination seemed to me to contain appropriate concessions and to be made carefully.

7. Dr Flecknoe-Brown thought that it was likely that the applicant acquired the disease while in active service with the Navy in 1990 or 1991. He had a description from the applicant in expressing that opinion of various bloody fights and other events during the service that would have permitted blood-to-blood transmission.

8. The applicant served on board the HMAS Canberra and the HMAS Adelaide during his defence service. On each vessel he was living in close connection with other sailors numbering about sixty persons. The possible sources for blood-to-blood transmission were: the repair of equipment on which others worked, the equipment having sharp edges which often causes cuts; razors and toothbrushes left in bathrooms by other sailors after their use which were shared; ‘crossing the line’ ceremonies involving initiations by dunking of heads in a common bucket and causing abrasions; fights on shore, including in Malaysia during a time when the Australian ships called to that country together with sailors of other nationalities; games of rugby union played onshore in Tonga and America; games of hockey played on the deck of the ships; a car accident in the Solomon Islands with three other sailors involving lacerations from broken glass after the vehicle rolled over; and sex with prostitutes during shore leave overseas in Asia possibly involving no use of condoms.

9. The applicant’s evidence about fights on shore overseas is consistent with the fights being service-related. In one case, while the applicant and another crew member were on shore leave in Thailand, they were attacked and attempted to be robbed. They fought the robbers and some injury was suffered by the applicant. In another case the applicant was with other crew members to observe some kind of naval celebration in Malaysia, and the crew members from the navies of other nations were nearby. A brawl broke out on the dock between the different navies, and the applicant assisted his crew mates in the scuffle, suffering injuries. In another case, he and fellow crew members were in a car in the Solomon Islands, probably touring. The car was involved in an accident as a result of which the applicant  suffered lacerations for which he was treated by the Navy. His colleagues also sustained some injuries. These incidents appear to be related to the service in that the shore leave of the applicant was part of his service with the navy.

10. Transmission by heterosexual sex with prostitutes was described as much less likely by Dr Flecknoe-Brown and also by the expert relied upon by the respondent, Adjunct Professor Korman, at page 107 of the transcript. As such, the applicant’s engagement in unprotected heterosexual sex in the Australian community prior to and during his time of service is also not a likely source of his condition.

11. Homosexual sex, intravenous drug use and blood transfusions (none of which affect this case) are much more likely sources of blood-to-blood events compared to unprotected heterosexual sex. It seems in any event that the applicant’s vaginal sex overseas involved condom use, although Dr Flecknoe-Brown doubts that his vaginal sex always involved a condom for reasons to which he referred in his report.

12. According to the applicant, the Navy knew its single men would engage in the use of prostitutes after being at sea for longer periods and distributed condoms and gave advice about sexually transmitted diseases. Whether that kind of activity constituted defence service may be doubted, but because it was not likely to involve transmission of hepatitis C it may not arise.

13. Dr Korman regarded it as possible, but not more likely than not, that the disease was contracted during service.

14. On this matter, it being necessary to prefer one or the other, I prefer the evidence of Dr Flecknoe-Brown. It may be added that Dr Jakobovits remarked at page 128 of the transcript that he presumed that when the applicant had HIV and hepatitis B testing done, he probably would have had liver functions tests done too.

15. Section 70 of the Veterans’ Entitlements Act 1986 (the Act)  relevantly provides as follows:

    70 Eligibility for pensions by way of compensation to members of Defence Force or Peacekeeping Force and their dependants

    1Where:

    […]

    (b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;

    the Commonwealth is, subject to this Act, liable to pay:

    […]

    (d)in the case of the incapacity of the member—pension by way of compensation to the member;

    in accordance with this Act.

    […]

    5For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:

    (a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;

    […]

    (c)the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or

    (d)the injury or disease from which the member died, or is incapacitated:

    (i)     was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or

    (ii)    was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;

    and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; […]

16. Those provisions were considered by the High Court in Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115. The plurality (McHugh, Gummow, Callinan and Heydon JJ) decided that the relevant question for the Tribunal in that case was the one posed by s 70(5), whether the injury arose out of, or was attributable to any defence service of the veteran. The same question is one of those arising on this review. For reasons already mentioned I find that test to be satisfied in this case.

17. The High Court also held that the expression “defence-caused” should be given a broad meaning and should not necessarily be circumscribed by considerations such as whether the relevant act of the claimant was one he was obliged to do as a member of the defence forces, and explained that proposition by reference to some examples. Those examples do not assist much in this case, except to the extent to which the Court referred to expected activities, which may extend to the use of prostitutes. While Commodore Cordner knew well that his younger sailors, or many of them, would engage prostitutes ashore, he said that the Navy did not encourage them to do so.

18. The review also raises issues arising under s 120B of the Act and certain statements of principles published. The respondent has submitted, including in its written submissions of October, that s 120B of the Act suggests that the causation question must relate the contraction of the disease to “some particular service”. The findings I have made above suggest that it is more likely than not that one of a number of events which occurred during defence service (although which one is impossible to determine) were the cause of the applicant contracting hepatitis C. In my opinion, s 120B(3)(a) of the Act requires no more than that.

19. The applicant referred to many occasions when he was doing things connected with his defence service. Each of those things could have led to his acquiring hepatitis C. He also accepted that events occurred before his service commenced which could have been the time when he acquired hepatitis C. Broadly speaking the parties also agree that the hepatitis C led to his acquiring the PTSD and depression. He was severely distressed by the need to have not one but two liver transplants as a result of his hepatitis C.

20. If I had accepted the evidence of Dr Korman mentioned in [13] above, I would not have been able to conclude that the applicant’s case was made out on the balance of probabilities.

21. For reasons expressed above, the reviewable decisions will be set aside and the matter will be remitted to the respondent for computation of the benefits payable to the applicant, with the direction that the applicant’s conditions of hepatitis C, PTSD and depression are related to his service under the Act.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

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Associate

Dated: 24 November 2023

Date(s) of hearing:	18-20 September 2023
Date final submissions received:	12 October 2023
Counsel for the Applicant:	Mr T Saunders
Solicitors for the Applicant:	Kemp & Co Lawyers
Solicitors for the Respondent:	Sparke Helmore Lawyers