Stanbury and Repatriation Commission
[2007] AATA 1115
•9 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1115
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200500958
VETERANS' APPEALS DIVISION ) Re JEAN ELIZABETH STANBURY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr C. Ermert, Member Date9 March 2007
PlaceMelbourne
Decision The decision under review is affirmed. (sgd) C. Ermert
Member
VETERANS’ AFFAIRS ‑ veterans’ entitlements ‑ operational service – service on Horn Island – islands adjoining Northern Territory – service in actual combat with the enemy – exposure to benzene – myelodysplastic disorder – Statements of Principles – exposure to benzene over a five year period – exposure during civilian employment ‑ whether post‑discharge exposure arose out of eligible service.
Administrative Appeals Tribunal Act 1975 ss 34J, 37
Veterans’ Entitlements Act 1986 ss 5C, 6A, 8,120(4)
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Ahrenfeld (1991) 101 ALR 86
Solomon v Licensing Court of New South Wales (2000) 52 NSWLR 31
Re Edgar and Repatriation Commission (AAT 10439, 18 September 1995)
REASONS FOR DECISION
9 March 2007 Mr C. Ermert, Member INTRODUCTION
1. Jean Elizabeth Stanbury (the applicant) is the widow of her late husband, Leonard Aubrey Joseph Stanbury (the veteran) who died on 17 June 2004 at the age of 82. The veteran served in the Royal Australian Air Force (RAAF) from 9 June 1942 to 14 January 1946. After his enlistment he was trained to become a fitter mechanic and driver. The veteran was posted to an operational unit on Horn Island on 25 March 1943. He was present for the last enemy air raid on Horn Island on the night of 18 June 1943.
2. The veteran’s duties required him to refuel vehicles and to clean engine parts in petrol, resulting in some exposure to benzene. One of the certified causes of the veteran’s death was myelodysplasia which may have been connected with the veteran’s exposure to benzene. The applicant contends that the veteran’s service on Horn Island is operational service and that the veteran’s death was connected to his service-related exposure to benzene.
3. Mrs Stanbury lodged a claim for a widow’s pension on 1 October 2004. This claim was refused by the Repatriation Commission (the respondent). Mrs Stanbury applied to the Veterans’ Review Board (VRB) for a review of the respondent’s decision. On 19 August 2005 the VRB affirmed the decision. This hearing is an application for review of the VRB decision.
The Hearing
4. It appeared to me that the issues for determination on the review could be adequately determined in the absence of the parties. In a directions hearing conducted on 15 November 2006 the parties agreed that the review could be determined without a hearing. Therefore, under s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act), I decided to review the decision by considering the documents lodged with the Tribunal and without holding a hearing. In making my decision I have before me the documents pursuant to s 37 of the AAT Act (the T‑documents), together with the following documents submitted by the respondent:
·the transcript of proceedings of the VRB, dated 19 August 2005;
·the clinical notes of Dr Michael Stobie, Local Medical Officer;
·the clinical records of St Vincent’s Private Hospital;
·the clinical records of St Vincent’s Public Hospital;
·a report by Mr Robert Piper, Military Aviation Research Services dated 14 August 2006;
·two reports by Professor Jack Cade, Director of Intensive Care at the Royal Melbourne Hospital, dated 22 August 2006 and 20 October 2006;
·an extract from Royal Australian Air Force 1939-1942 by Douglas Gillison; and
·an extract from M.H. McLelland ‘Colonial and State Boundaries in Australia’ (1971) 45 The Australian Law Journal 671.
THE ISSUES
5. The substantive issue to be determined is whether the veteran’s death is war‑caused. A preliminary issue to be determined is whether the veteran’s service was operational service or eligible service in accordance with the provisions of the Veterans’ Entitlements Act 1986 (the Act). The answer to that question determines the standard of proof to be applied to the decision and also determines which of the Statements of Principles (SoPs) involving myelodysplasia are relevant to this case. The next issue is whether the veteran’s exposure to benzene meets the criteria specified in the relevant SoP to connect the veteran’s death with his war service.
Was the veteran’s service operational service?
6. The expression operational service is defined in ss 6 to 6F of the Act. Relevantly, under s 6A Item 1, a person is taken to have been rendering operational service during any period during which the person was rendering:
(a)continuous full-time service outside Australia during a war to which this Act applies
(ii)continuous full-time service for a period of at least 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) between 19 February 1942 and 12 November 1943 (both dates inclusive)
(iii)…
(iv)continuous full-time service rendered within Australia during World War 2 in such circumstances that the service should, in the opinion of the Commission, be treated as service in actual combat against the enemy.
The phrases in contention in this case are emphasised.
Does Horn Island adjoin the Northern Territory?
7. It is the applicant’s contention that Horn Island is an island that adjoins the Northern Territory and therefore the veteran’s service on Horn Island is operational service under the provisions of s 6A Item 1(b). The contention is that Horn Island is next to the Northern Territory and is joined to it by means of the common waters within the Gulf of Carpentaria and the Arafura Sea. The applicant submits that there are no restrictions on the distance from the border of the Northern Territory before the islands are excluded from the provisions of the Act.
8. The respondent contends that the veteran’s service was not operational service because Horn Island is part of Australia and is therefore not outside Australia; and refers to the Tribunal’s decision in Re Edgar and Repatriation Commission (AAT 10439, 18 September 1995). The respondent relies on an article by M.H. McLelland ‘Colonial and State Boundaries in Australia’ (1971) 45 The Australian Law Journal 671. The respondent further submits that Horn Island is part of Queensland and not the Northern Territory and accordingly the veteran did not have operational service. I note the respondent did not address the issue of whether Horn Island adjoins the Northern Territory.
9. In considering the meaning of adjoins I referred first to dictionary descriptions. The Oxford English Dictionary describes adjoin as:
1. To join on; to join or unite (a person or thing to or unto another); 2. To join on as an adjunct or supplement; to add, annex, attach, or append; to subjoin; 3. To join; 4. To join; to come into union or contact; 5. To be or lie close, or in contact; to be contiguous; 6. To be contiguous to or in contact with.
10. The Macquarie Dictionary describes adjoin as: 1. To be in connection or contact with; abut on; 2. to lie or be next. or in contact. The same dictionary describes adjoining as: bordering, contiguous.
11. The dictionary meanings include two concepts: being contiguous with, that is in contact with, and being close to. These meanings were considered by the New South Wales Supreme Court in the matter of Solomon v Licensing Court of New South Wales (2000) 52 NSWLR 31. One of the issues to be decided was whether a building that was near a shopping centre but separated from it by road and a footpath adjoined the shopping centre. At issue was whether adjoining as used in the Liquor Act 1982 (NSW) should be construed narrowly to mean “conterminous”, “touching upon”, or “sharing a common boundary” or more loosely in the sense of “nearby”, “near to” and “neighbouring”. In his judgement Whealy J said:
20. An examination of the manner in which the word “adjoining” has been construed in decided cases indicates that it may have a range of meanings dependent upon the context in which it occurs. I accept it is permissible to regard it as having a primary meaning of conterminous ie, “connecting with” or “rebutting”; and that it may have a secondary or wider meaning of “near to” or “neighbouring” …
21. Labels such as “primary” or “secondary”, however, can be misleading and are not necessarily helpful as it is necessary to examine the work in its proper context.
12. Whealy J also referred to a judgement of the New South Wales Court of Appeal in the matter of Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 in which Kirby P (as he was then) said:
…Words in the English language are constantly changing their primary meanings as any dictionary demonstrates. The word “adjoins” is no exception. Whereas originally it might well have connotated immediate physical continuity, nowadays that idea tends to require the use of the adverb “immediately”, such as “immediately adjoins”. That adverb would not be necessary if the word itself invariably connotated immediate physical proximity.
13.In the same judgement Glass JA said:
…the trial judge ruled that the word “adjoins” in the statutory phrase “adjoins land zoned for urban purposes” is used in its loose sense of “is near to” and “is neighbouring on” rather than its exact meaning “is conterminous with”. … In my opinion the word “adjoins” is currently used in both senses and must take its colour from the context in which it appears.
14. In this case the context is the threat from hostile forces faced by members of the Defence Force who served in the northern part of the Northern Territory between February 1942 and November 1943, including any of the islands adjoining the Northern Territory. It is not conceivable that the enemy forces at the time constrained their actions because of the legislated boundaries of the Northern Territory. It is, however, conceivable that enemy action aimed at the relevant parts of the Northern Territory could have spread across the border to adjoining islands. For islands to be included in this context they would have to be contiguous or at least so near to or neighbouring the Northern Territory that a member of the Defence Force would face the same threat as that faced in the relevant part of the Northern Territory. Horn Island is situated off the tip of Cape York in Queensland and separated from the Northern Territory by the full width of the Gulf of Carpentaria. I am not satisfied that Horn Island is so near or neighbouring to the relevant part of the Northern Territory that it can be considered as “adjoining the Northern Territory”. Accordingly I find that Horn Island is not in fact adjoining the Northern Territory and therefore the veteran’s service does not satisfy the provisions of s6A Item 1(b) of the Act.
Should the veteran’s service be treated as service in actual combat with the enemy?
15. The applicant contends that the veteran’s service during the enemy air raid on Horn Island on the night of 18 June 1943 constitutes actual combat against the enemy and that he therefore satisfies the provisions of s 6A Item 1(d) of the Act.
16. The respondent relies on the expert opinion of Mr Robert Piper, a military historian, contained in his report dated 14 August 2006. The respondent’s contention is that the veteran was only present on Horn Island for one air raid on 18 June 1943 and that air raid required no interception and no damage resulted. At most and at best the veteran could only be deemed to have had one day of operational service for the purposes of s 6A Item 1(d) of the Act.
17. In considering this issue I had regard to the decision in Re Edgar which involved Mr Edgar’s service on Thursday Island, which is in close proximity to Horn Island, at the time of the same air raid on 18 June 1943. In its decision the Tribunal cited the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Ahrenfeld (1991) 101 ALR 86 at 87. The Full Court described the phrase actual combat against the enemy, as used in s 6A Item 1(d) of the Act, as an event which answers the description of integral participation in an activity directly intended for an encounter with the enemy whether offensive or defensive in character. In Re Edgar the Tribunal said at [12]:
… there was nothing in the applicant’s evidence to indicate that he was involved in “actual combat” in the sense outlined by the Full Court in Ahrenfeld’s case and applied in subsequent cases. Although there may have been a red alert and even though the Forces in the Torres Strait Islands had assumed operational positions, it could not be said that the applicant was engaged in “actual combat”. On his own evidence he was taking shelter in a trench and he was not involved in the firing of guns or in any activity which could be described as “directly intended for an encounter with the enemy whether offensive or defensive in character”. There was no evidence that the applicant was even armed at the time he entered the trench. Accordingly the Tribunal is satisfied that the applicant did not render operational service …
18. In this matter there is no evidence that the veteran was involved in any activity that was directly intended for an encounter with the enemy whether offensive or defensive. The applicant’s contentions contain a suggestion that one reason that some of the bombs dropped in that air raid missed their target was due to the anti‑aircraft fire from the service personnel that were stationed on Horn Island. There is no such suggestion contained in the report by Mr Piper and there is no evidence that the veteran was armed or took any part in firing a weapon of any sort. In the absence of any evidence, and following the reasoning of the Tribunal in Re Edgar, I find that the veteran was not engaged in actual combat with the enemy. Therefore, he does not satisfy the provisions for operational service in s 6A Item 1(d) of the Act.
Standard of Proof
19. As the veteran’s service satisfies none of the provisions of s 6A Item 1 of the Act I find that his service was not operational service. It follows that, in my consideration of whether the veteran’s death was war-caused, I must apply the standard of proof called for by the application of s 120(4) of the Act, that is to my reasonable satisfaction. As the claim was lodged after 1 June 1994, s 120B of the Act further provides that reasonable satisfaction is to be assessed by reference to the relevant SoP. Section 120B(3) of the Act requires that the Tribunal is to be reasonably satisfied that the death of a person was war-caused only if:
…the material before the Tribunal raises a connection between the death and the person’s particular service and the material upholds the contention that the death of the person is, on the balance of probabilities, connected with that service.
Relevant Statements of Principles
20. As I have determined that the veteran’s service was not operational service, the SoPs relevant to this case are:
·Myelodysplastic Disorder, Instrument N°16 of 2000 (SoP 16 of 2000) (revoked); and
·Myelodysplastic Disorder, Instrument N°38 of 2006 (SoP 38 of 2006).
21.Factor 5 of SoP 16 of 2000 relevantly states:
The factors that must exist before it can be said that, on the balance of probabilities, myelodysplastic disorder or death from myelodysplastic disorder are connected with the circumstances of a person’s relevant service are:
(a)….
(b)being exposed to benzene on more days than not over a period or periods totalling five years before the clinical onset of a myelodysplastic disorder…
22.Factor 8 of SoP 16 of 2000 defines being exposed to benzene as:
(i)inhaling benzene vapour where such exposure occurs at measured or estimated ambient benzene concentration exceeding one part per million, or
(ii) having skin contact with liquids containing benzene;
23.Factor 6(e) of SoP 38 of 2006 requires:
(e)being exposed to benzene on at least 750 days within a continuous five year period before the clinical onset of myelodysplastic disorder, where:
(i)the first exposure occurred more than ten years before the clinical onset of acute myeloid leukaemia; and
(ii) where the clinical onset occurs within thirty years of that period;
CONTENTIONS
24. The applicant contends that the veteran was exposed to the benzene in petrol throughout the whole of his service. The applicant further contends that the veteran’s service of three years, seven months and five days equates to 60.84 per cent of the five year exposure required under Factor 5(b) of SoP 16 of 2000. This is considered by the applicant to be a significant contribution in accordance with the findings in Kattenberg v Repatriation Commission (2002) 73 ALD 365. The applicant also points out that, after his discharge from the RAAF, the veteran continued in like employment for the remainder of the five years.
25. The respondent concedes that there was benzene in the petrol to which the veteran was exposed but contends that the veteran’s exposure to benzene during his three and a half years of eligible service was very limited. The respondent submits that the veteran was not exposed to benzene on more days than not over a five year period, and that it has not been established that the veteran had at least 750 days exposure to benzene within a continuous five year period as required by the SoPs. The respondent further submits that the material does not raise a connection between the veteran’s death and his service, as required by the Act. In support of these contentions the respondent relies on the expert opinions of Professor Cade, Director of Intensive Care at the Royal Melbourne Hospital, and Mr Piper.
CONSIDERATION
26. I start by considering the mechanism of the veteran’s exposure to benzene. I note the applicant’s contention that the veteran was exposed to the benzene in petroleum by having to decant petrol from bulk fuel containers into jerry cans, refuel vehicles with petrol and wash parts of engines in petrol. These activities were not disputed by the respondent. Mr Piper confirms in his report that the veteran was required to refuel vehicles. Mr Piper also confirms that benzene can enter the skin through contact with petrol that contains a small percentage of benzene. I note that being exposed to benzene is defined in the SoPs as having skin contact with liquids containing benzene and that the quantity of benzene contained in the liquid is not further defined or constrained. From this undisputed evidence I accept that the mechanism of the veteran’s exposure to benzene was through his exposure to petrol as a result of his having to refuel vehicles and clean engine parts.
27. The next issue for consideration is the degree of the veteran’s exposure to benzene. The respondent contends that the veteran’s exposure was very limited. However, I note that Mr Piper said, at page 13 of his report, that:
…
it was not possible to determine how often or how long the veteran was involved in refuelling vehicles, it might have been once a day or every few days depending on mileage covered at the time.
…
With the veteran’s activity of cleaning engines added to his vehicle refuelling activities, it is possible that the veteran may have had quite frequent exposure to the benzene in petrol; on occasions more frequently than daily. However there is no direct evidence on which to base such a finding.
28. In regard to the SoP provisions of days of exposure over five years, the applicant’s contention is that the veteran’s exposure applied throughout the whole of his service, amounting to 1,335 days, and that this exceeds the minimum requirements of the SoPs. The comparable figure in SoP 16 of 2000 is at least 912 days, being more days than not over a period of five years, and in SoP 38 of 2006 the figure is 750 days within a five year period. The applicant’s argument assumes that the veteran was exposed to petrol on at least 912 days of his 1,335 days service in order to satisfy the provisions of SoP 16 of 2000 and 750 days of his 1,335 days of service in order to satisfy the provisions of SoP 38 of 2006.
29. There is no evidence available to me on which to base a definitive assessment of the number of days the veteran was exposed to benzene. On one hand the number of exposure days would be reduced by the periods of time the veteran was involved in activities other than those requiring vehicle refuelling and cleaning of engine parts. From the veteran’s record of service, such periods could include parts of his technical training, and his times at 2 Embarkation Depot, Bradfield Park, 1 Reserve Personnel Pool, Townsville and at Mount Druitt. The veteran would almost certainly have had breaks from his trade duties such as periods of leave, rest days and temporary allocations to other forms of duty within his units. On the other hand, as evidenced by Mr Piper, the veterans’ exposure to petrol from refuelling could have been on a daily basis, and that does not take into account exposure from the washing of engine parts in petrol.
30. Before making a determination on that issue I will consider the further point raised by the applicant, that the veteran continued to work in a petrol related environment after his discharge. Mr Piper notes in his report that, in his 1951 application for the Citizens’ Military Forces, the veteran stated that he was then managing a city garage. This supports the evidence given by the veteran’s daughter, Ms J. Whitney, to the VRB on 19 August 2005, that after his discharge her father had been involved in the motor trade, firstly as a mechanic and then in management. The applicant contends that this post-discharge employment makes up the remainder of the five year period required to satisfy the requirements of the SoPs.
31. The applicant raised this issue in the context of the findings of the Federal Court in Kattenberg. The relevant issue in Kattenberg was that, to satisfy the provisions of a smoking-related SoP, Mr Kattenberg must have smoked at least 30 pack-years of cigarettes. In its determination of the matter, the Tribunal only took account of the cigarettes smoked during Mr Kattenberg’s period of service, and not the cigarettes he smoked after his period of service. As a consequence the Tribunal found that the number of cigarettes smoked was insufficient to meet the provisions of the SoP. The applicant appealed to the Federal Court and Emmett J found (at 43 and 44):
43. Thus, smoking at least thirty pack years of cigarettes will be related to relevant service rendered by a veteran (see para [9] above), if the smoking of that quantity of cigarettes:
* arose out of, or was attributable to, that service;
* was contributed to in a material degree by, or was aggravated by, that service; or
* would not have occurred but for the rendering of that service by the person.
Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran's service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service.
44. The Tribunal did not approach the construction of SoP 130 of 1996 in that way. The Tribunal construed the SoP as requiring that the smoking of at least thirty pack years of cigarettes be wholly attributable to the service. The Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996. The second ground of appeal is therefore made out.
32. While it is conceivable that the veteran took up his post-discharge employment as a direct consequence of his eligible service, there is no evidence available to me that that was the case. At the time there could have been a number of non-service related reasons that influenced the veteran in taking up civilian employment as a mechanic after his discharge. Without evidence, I am unable to find a direct causal link that, but for his eligible service he would not have taken up his post-discharge employment as a mechanic. The proposition that the veteran’s post-discharge employment as a mechanic arose out of, was attributable to or contributed to in a material degree by his eligible service remains no more than conjecture.
33. Even if there was a causal link between the veteran’s eligible service and his post-discharge employment as a mechanic, there would be questions as to the extent of his exposure to petrol in that post-discharge civilian employment and whether the petrol to which he may have been exposed contained benzene. Once again, there is no evidence before me on which to make a finding on the veteran’s exposure to benzene after his discharge from the RAAF.
34. From the above considerations I am not able to find that the veteran’s post-discharge employment arose out of, was attributable to or contributed to in a material degree by his eligible service. Without the inclusion of a year and a half of his post‑discharge employment, the veteran’s period of service-related exposure to benzene does not reach the total of five years required by both of the SoPs.
35. As the veteran’s exposure to benzene is not sufficient to meet the requirements of either of the relevant SoPs it can not be said that, on the balance of probabilities, the veteran’s death from myelodysplastic disorder is connected with the circumstances of his eligible service. As a consequence I find that the veteran’s death was not war-caused.
CONCLUSION
36. From the evidence I have found that the veteran’s service on Horn Island was not operational service as defined in the Act, but was eligible service. As a result the standard of proof I applied in this matter was the reasonable satisfaction standard. I accepted the evidence that the veteran was exposed to benzene during the three and a half years of his eligible service as a result of his exposure to petrol. I considered the application of the judgement in Kattenberg to this case but there was no evidence before me on which I could find that his post-discharge employment arose out of, was attributable to or contributed to in a material degree by his eligible service. Without the inclusion of a period of his post-discharge employment, the veteran’s exposure as a result of his eligible service did not amount to the five years stipulated in the SoPs. As a consequence, I have found that the veteran’s death was not war-caused and the applicant’s claim does not succeed.
DECISION
37. The Tribunal affirms the decision under review.
I certify that the thirty‑seven [37] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr C. Ermert, Member
(sgd) Olympia Sarrinikolaou
ClerkDate of Hearing: Hearing on the papers
Date of Decision: 9 March 2007
Advocate for the applicant: Mr Bruce Turner, Bayside Veterans’ Centre
Advocate for the respondent: Ms Tracey Chant, Department of Veterans’ Affairs
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