Wyatt and Repatriation Commission
[2002] AATA 1112
•29 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1112
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/282
VETERANS' APPEALS DIVISION
Re: CHARLES WYATT
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: M.J. Carstairs, Member
Date: 29 October 2002
Place: Melbourne
Decision:The Tribunal affirms the decision under review to reject a claim for Pharmaceutical Benefits Card under s93M(1) of the Veterans' Entitlements Act 1986.
(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – entitlements – qualifying service - qualification for Repatriation Pharmaceutical Benefits Card under s93M(1) of the Veterans' Entitlements Act 1986 - whether applicant rendered qualifying service
Veterans' Entitlements Act 1986 ss7A(1), 93M(1)
REASONS FOR DECISION
29 October 2002 M.J. Carstairs, Member
This is an application by Charles Wyatt for review of a decision of the Repatriation Commission (the respondent) dated 27 February 2002, that the applicant was not eligible for a Repatriation Pharmaceutical Benefits Card under s93M(1) of the Veterans' Entitlements Act 1986 (the Act).
This matter was heard on the papers. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975. The Tribunal also took into account the applicant's letters dated 23 January 2002, 11 March 2002, 13 May 2002 and 12 August 2002, and the respondent's Statement of Facts and Contentions dated 21 August 2002; as well as a report (with attachments) by Associate Professor McCarthy, military historian, dated 28 July 2002.
BACKGROUNDThe applicant is aged 80. He served in the Royal Air Force from 1941 to 1946. He had overseas service in Italy between 24 July 1945 and 27 November 1945 (T3). On his claim, he stated that he served an additional week (20 April 1945 to 27 April 1945) in Melsbroek in Belgium, an area about 5 miles (8 kilometres) north-east of Brussels, where he went as ground crew to recover a Lancaster bomber.
The applicant lodged his claim on 28 December 2001 (T4). On 18 January 2002, a decision was made to reject the claim. The applicant sought review of that decision. On 27 February 2002, a Service Pension Review Officer affirmed the original decision. The review officer accepted that the applicant had spent a week in Belgium in April 1945, though it was not shown on his service papers. However, he was satisfied that the applicant did not incur danger from hostile forces of the enemy in that week.
The applicant sought review of the decision with this Tribunal on 14 March 2002. In his letter of appeal, he stated that he was in danger of being shot down by enemy fighters over the English Channel and while flying into and out of the area. He said that within the United Kingdom aircrew were never issued with parachutes when flying, but they were issued with them on this operation to Belgium. He said the aircrew who flew him would have recorded it as an operation, but ground crews did not have logbooks to record their flying operations. He stated that the only proof he had of being there was a 10-Franc note he received in change at a pub. He said that he receives full pharmaceutical benefits with his age pension and wished only for recognition of his war service.
EVIDENCEThe applicant stated, in a letter (T7) dated 23 January 2002, that he was in Melsbroek airfield in Belgium to recover a Lancaster bomber. He stated that British forces had only captured the airfield a few days earlier. A Scottish regiment held it and the battlefront was only a few miles away. He said Melsbroek was a forward airfield with aircraft landing and taking off all day and there …was a real danger from intruders. He also stated that one of the engines in the Lancaster stopped before they were in the air. In the UK, he said, they were in constant danger from bombing, and from hazards such as test flights in faulty aircraft, dropped bombs, accidental gunfire, aircraft fires, and danger from propellers.
In a later letter dated 12 August 2002, after receiving the report of Associate Professor McCarthy, the applicant said that he was not sure of the exact date that he was in Belgium, but thought it to be some time after 14 March 1945 when he was posted to 115 Squadron. He said that the Lancaster was parked a long way from the control tower and when he called for transport a German answered him. He said that he recalled that at the local pub there was dancing to music from BBC radio, as the locals were celebrating. When he left the pub at night he could hear rumbling in the distance which sounded like gunfire or bombs. He also said that, when they lined up on the runway to fly the Lancaster back to England, one engine died and they took off on three engines.
In a written report dated 28 July 2002, Associate Professor J. McCarthy stated:
…
As the Veteran was a member of the Royal Air Force, the records concerning the activities of his unit would be held mostly in the Public Record Office, Kew. In the documents you have forwarded, the Veteran's unit or squadron is not shown so it has been impossible given the limited secondary sources available here to be specific in research. There seems no reason to doubt, however, that RAF ground staff could have been sent to continental Europe for specific tasks and one such as described by the Veteran. It is possible that such salvage operations as the recovery of the Lancaster in question would have been under the direction of one of the four groups of RAF Maintenance Command. It does seem that the repaired Lancaster became airworthy and was flown back to Britain. …
In regard to the applicant's claim that Melsbroek was a few miles from the battlefront, Associate Professor McCarthy stated as follows:
…
To respond to part of your second question therefore it must be concluded that the "general situation" in the Melsbroek area around 20 to 27 April 1945 would have been one which was far removed from the ground war. German forces had retreated from the area early in September 1944 and did not return. A German counter-offensive through the Ardennes had been defeated by 27 December 1944. As Chester Wilmot remarked, on that date "The Germans had looked upon the Meuse for the last time". (op. cit.,p.602). Three days after the Veteran left the Melsbroek area, Russian tanks were less than half a mile away from the Fűhrerbunker and on 30 April 1945 Adolf Hitler took his own life. At midnight on 8/9 May 1945, the war in Europe ended. Between 20 and 27 April 1945 (what) was happening in the Melsbroek area of Belgium must have been of no concern to the land forces of the Third Reich or of its leaders.
The applicant had also stated that there was hostile air activity around Melsbroek during his stay. Associate Professor McCarthy said in response:
…During the period the Veteran was at Melsbroek between 20 April 1945 and 27 April 1945 there were no bomber command operations carried out around the area. [See Martin Middlebrook & Chris Everitt, The Bomber Command War Diaries: An Operational Reference Book 1939-1945, (London, 1945)]. It is difficult also to substantiate the claim made by the Veteran that there was hostile air activity around Melsbroek during the period 20 and 27 April 1945.
By 20 April 1945 the Luftwaffe had almost ceased to exist as an effective fighting force. Bereft of fuel with units ravaged by attrition over the Reich, the Luftwaffe was a force that no longer exercised any influence on the conduct of either area or ground operations … by April 1945 the area around Melsbroek had long ceased to have any significance in the conduct of the 1939-1945 war. There is no evidence which suggests it received the attention of the almost defunct Luftwaffe.The applicant stated, in a letter dated 11 March 2002:
…
My service in Belgium would entitle me to the 1939/45 and France/Germany {European} Stars, My records do not show this service and my only proof of this service is the 10 Franc Belgium note {Copy Attached} which as I said before is the change I received after buying drinks at the local pub, this money was obtained by selling my soap on the black market with the help of a Scottish soldier.
"No danger from Hostile Forces" What a laugh, If you had been there you would have thought differently, When flying in the U.K. ground crews were never issued with parachutes, but when I flew in a Lancaster to Belgium I was issued with a chute, Why? Because there was a very real danger of being shot down by enemy fighters over the English Channel and Belgium. I flew to a forward airfield only seconds away by air from the main Army front, This was no "Mere belief that there was Danger" I was exposed to real dangers by flying into and out of this area and we lost many Lancasters in this same area on daylight raids in support of the ground troops, At that time there was a lot of air activity, some of it hostile.
CONSIDERATION OF THE ISSUES
Section 93M, which is in Part VA of the Veterans' Entitlements Act 1986 (the Act), provides:
93M(1) A Commonwealth veteran, an allied veteran or an allied mariner is eligible for a pharmaceutical benefits card under this Part if the veteran or mariner:
(a)is 70 years of age or older; and
(b)has rendered qualifying service during a period covered by paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1); and
(c)has been an Australian resident for a continuous period of at least 10 years.
Note 1: For qualifying service see section 7A and Division II of Part III.
Note 2: …In s7A provision is made for qualifying service for Commonwealth veterans in the following provisions:
7A(1) For the purposes of Parts III and VA… a person has rendered qualifying service:
…
(b)if, during a period of hostilities, the person has, as a member of the defence force established by a Commonwealth country, rendered, in connection with war or war-like operations in which the Naval, Military or Air Forces of Australia were engaged:
(i)service, in an area outside that country, at a time when the person incurred danger from hostile forces of the enemy in that area; or
(ii)service within that country, being service in respect of which the person has been awarded, or has become eligible to be awarded, a campaign medal…
The respondent submitted in its Statement of Facts and Contentions:
…
3.3.The relevant category of Qualifying Service is defined in subsection 7A(1) subparagraph (b)(i)…
3.4.The "incurred danger" test was considered by the full bench of the Federal Court in Repatriation Commission v Thompson (1988) 82 ALR 352. At page 356, the Court held that: the words "incurred danger" therefore provide an objective, not a subjective, test. A serviceman incurs danger when he encounters danger, is in danger or is endangered. He incurs danger from hostile forces when he is that risk or in peril of harm from hostile forces. The serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incurred danger" do not encompass the situation where there is mere liability to danger, that is to say, that there is a mere risk of danger. Danger is not incurred unless the serviceman is exposed, at risk of or in peril of harm or injury.
…
3.6.The respondent accepts that the Applicant was present at Melsbroek between 20 and 27 April 1945, but relies on the report compiled by Associate-Professor McCarthy on 28 July 2002 and contends that the Applicant could not have incurred danger from hostile forces of the enemy while serving in the Melsbroek [area] at that time. The respondent contends that Melsbroek is in the close vicinity of Brussels and that Brussels had been recaptured by Allied Forces on 3 September 1944, which precedes the Applicant's arrival by more than 7 months. The respondent further contends that, by the time the Applicant arrived at Melsbroek, Allied Forces had reached the Elbe river (see Appendix III - a line running approximately from Hamburg to Leipzig) and that German forces in this area were not in a position to attack Melsbroek (and most likely lacked the inclination to do so). The respondent further notes that the photograph of Melsbroek airfield as at March 1945 indicates that no enemy attacks on the airfield were expected at that time, as the aircraft are parked out in the open, rather than in fortified revetments.
3.7.The respondent further relies on the attached extracts from R.J Overy, The Air War 1939-1945 and Royal Air Force Air Historical Branch, The Rise and Fall of the German Air Force 1933-1945 and submits that these materials confirm that the only branch of the German forces capable of operating against targets in the Melsbroek area in April 1945, the German Air Force, had ceased to be of any influence even in the areas it was concentrated in (defence of Berlin in the east and defence of selected areas of Germany in the West).
3.8.In a letter dated 12 August 2002, the Applicant adds further details to his case. He refers in particular to the loss of an aircraft over Germany in the last weeks of the war. The respondent submits that while this indicates that Allied airmen operating over Germany might have been at a significant risk of the enemy attack at this time, this evidence throws little light on the issue of whether ground crew at Melsbroek were at risk of enemy attack at that time. The Applicant also provides details of faults in the aircraft which he was tasked recovering to the United Kingdom. The respondent concedes that this evidence clearly indicates that the task of recovering damaged aircraft involved significant intrinsic dangers. Unfortunately, the legislation imposes a narrower test, in that danger has to be incurred from "hostile forces of the enemy".
The Tribunal has reached its decision taking into account the documentary evidence and the submissions. The standard of proof to be applied by the Tribunal in determining this matter is that specified in s120(4) of the Act, namely to the Tribunal's reasonable satisfaction.
The Tribunal is satisfied that no issue arises under s7A(1)(b)(ii) as the applicant does not have any of the campaign medals that are set out in s7A(2) of the Act for his service within the UK. The essential issue then is, did the applicant incur danger from hostile forces of the enemy in that area? The Tribunal accepts, and so finds, that the applicant went to Melsbroek during a period of hostilities, as a member of the defence forces established by a Commonwealth country and in doing so rendered service there in connection with war-like operations (s7A(1)(b) of the Act).
However, the Tribunal does not accept that he incurred danger from hostile forces of the enemy in that area. The Tribunal accepts the evidence of Associate Professor McCarthy as the area around Brussels and Melsbroek had been recaptured by allied forces in September 1944, some seven months before the applicant arrived. The Tribunal accepts that the danger from hostile forces, based on historical evidence, had passed. The Tribunal notes the applicant's letter stating that he may have been at Melsbroek earlier than the time he stated in the claim. The Tribunal accepts that these events happened a long time ago, and is mindful that, under s119(1)(h) of the Act, the Tribunal is to take into account the difficulties that lie in the way of ascertaining the existence of any fact for reasons of the passage of time or absence of records. However, in raising the possibility of a slightly earlier date the applicant appears to have been influenced by the receipt of Associate Professor McCarthy's report and conclusions. The Tribunal does not accept that the dates now advanced are a better recollection on the applicant's part than his earlier recollection. Nor would it make a difference to the outcome, as even on the earlier dates now raised by the applicant, the same conclusion follows, namely that the applicant would not have incurred danger from hostile forces of the enemy . Neither does the Tribunal accept the new evidence of the applicant that he heard someone speaking in German from the control tower as an indication that there was danger from hostile forces of the enemy at the time that the applicant was in Melsbroek.
The Tribunal is reasonably satisfied on the basis of the report of Associate Professor McCarthy that the applicant did not incur danger from hostile forces of the enemy at the time that he was in Melsbroek. For these reasons, the decision under review will be affirmed.
DECISIONThe Tribunal affirms the decision under review to reject a claim for Pharmaceutical Benefits Card under s93M(1) of the Veterans' Entitlements Act 1986.
I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J.Carstairs, Member(sgd) Catherine Thomas
ClerkDate of hearing: Nil - decision on papers
Date of decision: 29 October 2002
Solicitor for applicant Nil — self-representedAdvocate for the respondent: Mr R. Douglass, Department of Veterans' Affairs
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