Pamment, Scotia Ada v The Repatriation Commission [1995] FCA 1043

CATCHWORDS ADMINISTRATIVE LAW - Appeal from decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal - decision whether death of veteran was war-caused - whether opinion reasonably open to Commission - substantial element of unforeseeability. DEFENCE - Veterans' Entitlements - whether death of veteran was war-caused - s6(1)(n) Veterans' Entitlements Act 1986 (Cth) - proper construction of s6(1)(n) - whether open to Veterans' Appeals Division of Administrative Appeals Tribunal ("the Tribunal") to conclude death not war-caused - whether lack of mobility caused death - standard of proof under s120 Veterans' Entitlements Act - "operational service" to have more beneficial "reasonable hypothesis" standard of proof - construction of "actual service" - whether "continuous full-time service" denotes whole of each period during which circumstances were such as to attract the specified opinion of the Repatriation Commission - whether on standard of "reasonable satisfaction" death was war-caused - connection needs to be established, conjecture is not sufficient - whether death attributable to any eligible war-service rendered by the veteran. Veterans' Entitlements Act 1986 (Cth) s6(1)(n) Younger v Repatriation Commission (1992) 28 ALD 211 Repatriation Commission v Ahrenfeld (1991) 29 FCR 556 Dorothy May McKeown v Repatriation Commission, VG488 of 1993, 25 October 1995, Jenkinson J, unreported. Repatriation Commission v Kohn (1989) 87 ALR 511 Re Searle and Repatriation Commission (1993) 29 ALD 580 Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 SCOTIA ADA PAMMENT v THE REPATRIATION COMMISSION No NG79 of 1995 Tamberlin J Sydney 22 December 1995

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG79 of 1995 GENERAL DIVISION ) BETWEEN: SCOTIA ADA PAMMENT Applicant AND: THE REPATRIATION COMMISSION Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 22 DECEMBER 1995 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs of the appeal. NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG79 of 1995 GENERAL DIVISION ) BETWEEN: SCOTIA ADA PAMMENT Applicant AND: THE REPATRIATION COMMISSION Respondent CORAM: TAMBERLIN J PLACE: SYDNEY DATED: 22 DECEMBER 1995 REASONS FOR JUDGMENT This is an appeal from the decision of the Veterans' Appeals Division of the Administrative Appeals Tribunal ("the Tribunal"). The applicant is the widow of the veteran who died on 16 July 1990 in somewhat unusual circumstances. The Tribunal affirmed a decision that the death of the applicant's husband was not war-caused. The Notice of Appeal raises three questions of law, which are as follows. (a) The proper construction of s6(1)(n) of the Veterans' Entitlement Act, (1986) (as amended) ("the Act").

(b) Whether on the findings of fact made by the Tribunal it was open to it to conclude that the death of the veteran was not caused by his disability or lack of mobility. (c) Whether the Tribunal erred in not holding that the cause of death was the lack of mobility by the deceased. On 20 October 1992 the applicant lodged an application with the Tribunal for a review of a decision of the Repatriation Commission ("the Commission"), which determined that the death of the veteran was not war-caused. The decision was reviewed by the Veterans' Review Board on 9 September 1992 and affirmed. The Tribunal on 19 January 1994 gave its reasons for decision on the preliminary issue as to whether the veteran had operational service pursuant to s6(1)(n) of the Act. The Tribunal decided that the bombing of Horn Island on 19 June 1943 by the enemy, while the veteran was either on that island or on Thursday Island, two nautical miles away, constituted the veteran being in actual combat against the enemy and that therefore on 19 June 1943 he had operational service. The Tribunal left open its findings in respect of all other aspects of the veteran's service in the Torres Strait Islands. The parties then agreed to an adjournment and the proceedings were later resumed before the Tribunal following the publication of the preliminary decision. On 19 January 1995, the Tribunal decided that it could not be reasonably satisfied that any of the veteran's war-caused disabilities contributed in any way to his fatal injury. The Tribunal affirmed the decisions of the Repatriation Commission of 25 June 1991 and the Veterans' Review Board of 9 September 1992. The veteran had a number of disabilities accepted as related to his war service, including, in particular, ligamentous injury to the right knee which was determined by a delegate of the Repatriation Commission on 24 March 1986 pursuant to s 101 of the Repatriation Act (1920). That section required the veteran to have " war service" which is defined in subs100(d) of the Repatriation Act to include service in prescribed combat areas within Australia. In its decision the Repatriation Commission determined that the veteran's service included service outside Australia and that this constituted operational service as defined in the Act. When that decision was reviewed by the Veteran's' Review Board on 9 September 1992, the Board decided that only the veteran's service in the Torres Strait Islands during the period from 26 October 1942 to 18 June 1943 was operational service for the purposes of paragraph 6(1)(n) of the Act. According to records, 18 June 1943 was the date of the last air raid in that area.

It was agreed that it was preferable that the Tribunal should decide the question of operational service before proceeding to take evidence in respect of the issues specifically related to the veteran's death. History The veteran served in the Australian Army from 20 April 1942 to 30 August 1946, including service in the Torres Strait Islands from 26 October 1942 to 8 December 1943. He was with the Australian Army Field Company, Australian Engineers. He sustained an injury to his right knee in New South Wales on 31 August 1944 which is described in the Hospital or Sick List Record Card as: "31.8.44 - Twisted (R) Knee while kicking football." This injury led eventually to the condition described as "ligamentous injury right knee" being accepted as war-caused. There was no dispute that his service in the Torres Strait Islands was service within Australia. The claim in respect of the veteran's death was that because of limited mobility arising from his ligamentous injury, he was unable to move out of the path of a car which crashed into his house in July 1990 and as a result of which he was injured and died.

The Tribunal addressed the question whether it was reasonably satisfied that the veteran's death was related to his war service. For the sake of completeness it should be noted that Dr H D Brown who was a member of the Tribunal when it gave its preliminary decision on 19 January 1994, was not a member of the Tribunal which gave its decision on 19 January 1995 on later hearing. Nothing turns on this difference in composition of the Tribunal, because the parties agreed that the Tribunal should proceed as a quorum to hear and determine the substantive case. The facts surrounding the circumstances leading to death are not materially in dispute. They are as follows. On 16 July 1990, about 47 years after the bombing incident, a car mounted the footpath at the side of the veteran's home and demolished part of a timber paling fence around the property and continued its path into the back room of the house where it stopped. A police report in evidence relevantly reads as follows: "The front section of the vehicle was angled towards south west and was completely inside the back room. The rear of the vehicle was angled towards north east and was mounted up on a slight embankment directly outside the back of the house. The damage to the back section of the premises was extensive with the whole of the back wall and back toilet being completely demolished. Amongst the debris inside the back room was the remains of a large fish tank which was resting on the bonnet of the car. In the south western corner of the back room, adjacent to the front nearside corner of the vehicle was the body of a deceased male. The deceased was in a crouching position with head curled forward towards corner. The deceased had sustained a large wound to the right side of the head and a number of lacerations to the right arm and leg. There was blood on the back wall near the deceased and on a large support post which was also positioned near the front nearside corner of the vehicle." Evidence was given that the veteran's right knee was unstable because of his knee injury and this had caused him to fall a few days before the accident. His knee had caused him a lot of pain and he was unable to kneel. The veteran had more disability from his knee in the winter. He applied ligament and crepe bandage to his knee every night and did not wear a bandage during the day. At the time of the accident the applicant, who was at home, believed that the veteran was emptying the fish tank, located in a glassed-in verandah, by siphoning the water from the fish tank into a bucket and emptying into the toilet. A short time before the accident he had already taken a bucket of water to empty. The applicant was in the kitchen at that time. She heard the smashing of the fence and the crash of breaking glass and then saw the vehicle coming in. She took six paces before the car stopped. There were two walls between her and where she believed the veteran would have been standing in front of the fish tank. She did not hear the veteran make any noise at the time, but she said that there would have been too much noise for her to hear him. When she got to the car, she saw a youth open the car door, jump over the bonnet of the car, and run away. The applicant said that veteran would have been standing facing the fish tank and that the vehicle would have been slightly to his right. The large glass window shattered by the vehicle would have been behind the veteran. She said that the car came through the back fence and the garden very fast but by the time it hit the toilet and the step the momentum had slowed, enabling her to get to the scene just before it came to a stop. She estimated she would have observed it over some seconds. The veteran's doctor attended the scene of the accident. His evidence was that the veteran died as a result of a shard of glass piercing his skull. To avoid death the veteran would have had to move out of the way of the glass. He thought it would only have required a slight movement of the head by the veteran to have avoided the glass. His evidence was consistent with the autopsy report. The veteran suffered from a number of other complaints including emphysema, chronic bronchitis, episodic atrial fibrillation, ischaemic heart disease, cervical spondylosis and arthritis. The doctor considered that the veteran had reasonably normal ambulation except during flare-ups of his condition when his mobility was more limited. He treated the veteran with steroid injections in the right knee and also with analgesics for pain control. He was mainly concerned in treating the veteran with his bronchitic, emphysema and heart conditions as they were more life threatening. The treatment of the knee with steroids would enhance mobility. The doctor observed the veteran's gait to be normal for his age and for the most part the veteran did not complain of symptoms in his right knee. The Tribunal found that most of the veteran's medical treatment was for conditions unrelated to his accepted disabilities. The doctor agreed that the veteran's knee condition would have made him slower to move than a person of his age without such a problem and he considered it "possible" that the veteran's knee condition would cause difficulty leaping out of the path of an oncoming car in an emergency. He noted however that only a very slight delay in moving out of the way of a shard of glass could have been significant. When asked whether it was more probable that had he been more agile, in not having that knee condition he would have been able to avoid the fatal blow, the doctor expressed the opinion that: "Well, as I say, that asks the question - the sort of $64,000 question. I'm not sure."

He went on to testify that because of the knee injury there would have been a significant impairing of the veteran's ability to move quickly. Reference was made to the fact that the veteran's wife with her ankle and back disabilities was able to take six paces after she heard the sound of the vehicle crashing through the fence before it finally stopped. The Tribunal summarised its finding in the final paragraph in the following way: "On all the evidence we cannot be reasonably satisfied that any of the Veteran's war-caused disabilities contributed in any way to his fatal injury." Statutory Provisions The relevant provisions of the Act are as follows: "Operational service 6. (1) For the purposes of this Act: (a) a person who has rendered, as a member of the Defence Force, continuous full-time service outside Australia during a war to which this Act applies shall be taken to have been rendering operational service while the person was so rendering continuous full-time service; and

(b) a person who has rendered, as a member of the Defence Force, continuous full-time service for a continuous period of not less than 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) during the period from and including 19 February 1942 to and including 12 November 1943 shall be taken to have been rendering operational service while the person was so rendering continuous full-time service; and ..... (m) a person who, while rendering continuous full- time service as a member of the Defence Force within Australia during World War 2, was injured, or contracted a disease, as a result of enemy action shall be taken to have been rendering operational service when the occurrence as a result of which the person was injured, or contracted the disease, happened; and (n) a person who has rendered continuous full-time service as a member of the Defence Force within Australia during World War 2 in such circumstances that that service should, in the opinion of the Commission, be treated as service in actual combat against the enemy shall be taken to have been rendering operational service while the person was so rendering that continuous full-time service; and ....." (Emphasis added) Section 120 - Standard of Proof "Standard of Proof 120. (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 subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of 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; (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 the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. (5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that: (a) an injury suffered by a person is a war-caused injury or a defence-caused injury; (b) a disease contracted by a person is a war-caused disease or a defence-caused disease; (c) the death of a person is war-caused or defence-caused; or (d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act. (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus on proving any matter that is, or might be, relevant to the determination of the claim or application." Case Law The question as to the meaning of s6(1)(n) was considered by Olney J in Younger v Repatriation Commission (1992) 28 ALD 211. In that case the Tribunal had accepted that the applicant had "operational service" for only two days of his service within Australia, that is to say, during his service in the north-west of Western Australia as a member of a light anti-aircraft gun crew. The Tribunal considered this to have been operational service because it was the only service in actual combat against the enemy. The applicant claimed before Olney J that by restricting the "operational service" to only two days the Tribunal had made an error of law, and that once he had qualified for "operational service" his entire service within Australia between October 1941 and October 1944 should have been classified as "operational". The argument was that the concluding words of s6(1)(n) meant that the veteran's entire service within Australia should be treated as operational. This argument was rejected. His Honour considered that no error of law had been made in the interpretation of the subsection. He said that the words must be read in context, and that the context included the expression "service" which "should, in the opinion of the Commission, be treated as service in actual combat against the enemy" (emphasis added). His Honour took the view that whether any service should be treated as "service in actual combat against the enemy" was a question of opinion for the Tribunal. He considered that the Tribunal, in concluding that only two days of the veteran's service should be treated as service in actual combat, had not made an error of law. The question of operational service was also considered by the Full Federal Court in Repatriation Commission v Ahrenfeld (1991) 29 FCR 556. In that case the respondent served in the RAAF during World War 2 as a wireless operator at postings within Australia. Whilst on duty at Onslow in May 1943 he transmitted radar plots of Japanese aircraft making a bombing raid in the area. The Tribunal held that this was not "operational service" within the meaning of s6(1)(n). The Tribunal was of opinion that the use of the words "actual combat" impose a positive test, namely that the serviceman must have been engaged in some action to "combat" the enemy. The Full Court decided that the Tribunal's opinion reflected an unduly restricted meaning of the expression "actual combat against the enemy". The expression was, in the Court's view, apt to include conduct which answered the description of integral participation in an activity directly intended for an encounter with the enemy, whether offensive or defensive in character. At page 562 the Court said: "Accordingly, ... a person who had rendered continuous full-time service as a member of the Defence Force within Australia during World War II may be taken as having rendered operational service whilst rendering that continual full-time service only if the Commission has formed the opinion that the continuous full-time service should be treated as service in actual combat against the enemy. It is the formation of the opinion of the Commission which enlivens the other provisions of the Act which have as their criterion the rendering of operational service. We agree with that construction of the legislation." The decision of Olney J in Younger was followed by Jenkinson J in Dorothy May McKeown v Repatriation Commission (VG 488 of 1993, 25 October 1995, Jenkinson J, unreported). In McKeown's case, the applicant rendered continuous full-time service during World War 2, from 29 December 1941 until 15 November 1945. During much of that time he served in Northern Australia as a signalman attached to the 22nd Australian Lines Section. He travelled by ship from Cairns to Portland Roads near Cape Weymouth, a voyage of three days. On another occasion he travelled by ship from Brisbane to Thursday Island, for eight days. Each journey was undertaken so that the unit of which he was a member could carry out its function at, or in the vicinity of the destination. His Honour referred to the decision of Olney J in Younger and decided that the expression "that continuous full-time service", where used in s6(1)(n) denoted, not the whole period of full-time continuous service within Australia but, the whole of each period during which the circumstances were such as to attract the opinion specified in that subsection. His Honour also accepted that paragraph (n) applied to any period of service, of whatever duration, throughout which the circumstances were such as to result in the formation of the specified opinion and that it was only in respect of such periods that paragraph (n) operated to make service "operational service." Reference was also made during submissions in the instant case to Repatriation Commission v Kohn (1989) 87 ALR 511. In that case, which turned on s6(1)(a), after reviewing the relevant statutory history Hill J said at 523: "Section 6(1)(m) looks to a person who, although serving within Australia, was injured as a result of enemy action. The legislature no doubt intended to ensure that such a person should be treated as rendering operational service notwithstanding that his service was within Australia because the injury or disease from which he suffered resulted from actual enemy action. Section 6(1)(n) further extends this concept by giving to the Commission a discretion to treat service in Australia as operational service where the circumstances were such as to involve actual combat against the enemy. While paras (m) and (n) of s 6(1) show a clear legislative intention that in the case of service within Australia some actual engagement in combat or enemy action would be necessary before operational service is to be found, they do not greatly assist the interpretation of s 6(1)(a)." (Emphasis added) Construction of s6(1)(n) In the present case, the first ground of appeal relates to the construction of s6(1)(n) of the Act. The veteran has rendered continuous full-time service as a member of the Defence Force within Australia during World War 2. The question of law is whether service was rendered in such circumstances that it was open to the Commission or the Tribunal on appeal to form the opinion that the service should be treated as service in actual combat against the enemy. If so, the veteran must be taken to have been rendering operational service while he was rendering such service. The Tribunal formed the opinion that the bombing of Horn Island, by the enemy on 19 June 1943, meant that the veteran was then in actual combat against the enemy and therefore on that one day he had operational service. Paragraph (n) is formulated on the basis that it is for the Commission to form an opinion whether, having regard to all the circumstances, the service of the veteran, should be treated as service in actual combat against the enemy. The decision under review by the Tribunal was that of the Veterans Review Board. That Board decided that the veteran's service in the Torres Strait Island from 26 October 1942 to 18 June 1943, was operational service. It therefore took a substantially wider view, than that of the Tribunal, with respect to what is to be treated as service in actual combat against the enemy. On either view, the 1944 accident did not occur during operational service. In forming its opinion as to what, if any, service of the veteran should be treated as service in actual combat against the enemy, the Tribunal referred to the fact that the veteran had served in the Torres Strait Islands from 26 October 1942 to 8 December 1943 with the Australian Engineers. The reasons for decision on the preliminary issue given by the Tribunal make express reference to documentary and oral evidence furnished by Mr Fraser, a war historian, called on behalf of the Commission. In particular, there was a report in evidence by Mr Fraser, which recorded that: ".... the 17 Field Company diary records only one actual attack on its area of operation - on 19 June 1943, after 0100 hours, when a Japanese floatplane dropped nine small bombs; "four landing on the shores of Horn Island near Double Hill and the remainder landing in the sea. No damage was done."" There was also a record in the diary that on 8 July 1943 a 300lb unexploded bomb was found in the Salt Pan area of Horn Island. The available records did not show the actual places within the unit in which the veteran served. In his oral evidence Mr Fraser said that at the time of the air raid it was impossible to say from the records whether the veteran would have been on Thursday Island or Horn Island. The distance between the two islands is about 2 nautical miles. The only relevant evidence of bombing being in relation to the incident on 19 June referred to above. In the course of cross-examination of Mr Fraser, the following exchange took place: "Q. Right. Could I just ask you a question regarding that; would it be safe to say that if there was a raid that there would be some record that the raid occurred? A. If they knew about it certainly they'd record it yes I feel sure of that. Q. Okay? A. If they knew about it." The Tribunal also noted that in the veteran's claim for pension lodged on 11 May 1984, which was in evidence, he wrote the following in response to a question as to the "type of duties" in which he was "employed during service, including combat engagements": "My duties ... included mining of roads, maintenance of motors, ... pumps and generators. Serving Army, RAAF, RAN, US Air Force establishments. This entailed long hours of work. I was on call twenty four hours a day. We were subject to enemy action bombing frequently." It is clear that the Tribunal, in relation to enemy action, preferred the evidence of Mr Fraser to that of the veteran, when it formed the opinion that only one day should be treated as service in actual combat against the enemy. In my view, in relation to the preliminary question concerning "operational service", the Tribunal has not made an error of law in its interpretation of the provisions of s6(1)(n), nor in the application of that subsection to the circumstances of the present case. Moreover, on the evidence before it, I am of the view that it was reasonably open to the Tribunal to conclude that it was only on 19 June 1943 that the veteran had service which should be treated as operational service and that the veteran's service in New South Wales in August 1944, when he sustained the injury, was not operational service. Causation The second and third grounds of appeal raise questions as to whether it was open to the Tribunal, on the relevant standard of proof, to conclude that the death of the veteran was not caused by his disability of lack of mobility. The relevant standard of proof was the reasonable satisfaction of the Commission which in turn calls for proof on the balance of probabilities. See Re Searle and Repatriation Commission (1993) 29 ALD 580.

Immediately before making its findings, the Tribunal referred to the decision of the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 where the Court said at 328: " .... "contribution" does not require that the contributing factor be a causa sine qua non; the "but for" test is not appropriate nor is the causa causans or "real effective cause", or "proximate cause" formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then they do not "contribute". The Tribunal formulated the question for decision as being whether the veteran's knee condition added in some measure to his death. It noted that the cause or connection must be established on probabilities and not left in the realm of conjecture. In my view, having regard to the fact that the were no eye witnesses to the injury or to the path and impact of the shard of glass, and having regard to the pandemonium and chaos which must have prevailed, as the vehicle smashed through the house, it could be no more than mere speculation to suggest that the injury could have been avoided if the veteran had been more mobile. There was, inherent in the circumstances, a high degree of randomness and unforeseeability. It was the apparent randomness of, and lack of evidence as to the path of the shard of the glass, projected as a result of the impact of the vehicle on the large glassed area, which the Tribunal saw as the central issue. There is nothing in the evidence to diminish the force of this observation and the fact that whether the glass hit or missed the veteran was on the evidence a pure matter of chance so that it was impossible to determine what, if any, consequences flowed from any lack of mobility arising from the knee condition. In its conclusion the Tribunal referred to the testimony of Dr Sheps to the effect that a slight change in position of the veteran's head was all that was necessary to avoid the head injury which caused the death. The veteran's limited mobility did not necessarily affect his ability to move his head slightly and avoid injury. Whether this was feasible is a matter of conjecture. In any event, it was open to the Tribunal to take into account that the veteran could possibly have moved his head without moving his lower limbs so as to avoid the glass. Nevertheless, these possibilities reinforce the elements of chance and unforeseeability surrounding the circumstances of the veteran's death. There was, in my opinion, ample evidence on which the Tribunal could reasonably have reached its conclusion that the death of the veteran did not arise out of, or was not attributable to war service. Accordingly, I am not persuaded that there was any error of law in this matter. The appeal is dismissed with costs. I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Tamberlin. Associate: Date: 22 December 1995 Counsel for Applicant: Mr A I McInnes QC Mr A L Hill Solicitor for Applicant: Kenneth Harrison Counsel for Respondent: Mr J S Hilton SC Ms R M Henderson Solicitor for Respondent: Australian Government Solicitor Date of Hearing: 16 November 1995 Date Judgment Delivered: 22 December 1995