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No.11 November 2010

Knight v Repatriation Commission

COURT Federal Court, Sydney
JUDGE Katzmann J
DECISION Appeal allowed
ISSUES Claim for war widow’s pension - ischaemic heart disease - veteran exposed to an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours - whether clinical onset of IHD must occur within 5 years of the end of service

Facts

Mr Knight served in the Royal Australian Navy from 1964 to 1974.  He died at the age of 51 after a myocardial infarction.  Mrs Knight applied for a war widow’s pension, on the ground that passive exposure to smoke in enclosed spaces onboard ships during her husband’s naval service materially contributed to him contracting ischaemic heart disease (IHD), which in turn caused his death.  The claim was refused and after the Administrative Appeals Tribunal (Tribunal) affirmed the decision under review Mrs Knight appealed to the Federal Court.

The Tribunal’s decision

At the Tribunal a medical opinion submitted on the applicant’s behalf pointed to the clinical onset of IHD in 1996, two years before Mr Knight’s death but more than two decades after he had left the Navy.  However, it was argued that Mr Knight continued to be exposed to a visible tobacco smoke haze in an enclosed space after his operational service ceased, first during his further period of defence service with the Navy, then as an employee in the Department of Defence and his later work as a bricklayer.  Mrs Knight contended the relevant factor in the applicable Statement of Principles (SoP) was satisfied if there was material to point to the conclusion that her husband developed IHD within five years of his last exposure to the required atmosphere.

The Tribunal took the view that the SoP factor required Mr Knight’s IHD to develop within five years of the last exposure during operational service.  Alternatively, even if exposure to visible tobacco smoke haze on service contributed to Mr Knight’s IHD, the Tribunal expressed the view that the contribution had to be “material” and the Tribunal indicated there was no evidence before it that Mr Knight’s exposure during his operational and defence service made a material contribution to his IHD, which was first diagnosed in 1996.

Questions of law

Three questions of law were raised by the applicant:

  1. Whether the Tribunal is permitted to make factual findings on the material put before it when it is considering whether a reasonable hypothesis is raised and, if so, what standard of proof applies;
  2. Whether the Tribunal was wrong to interpret the relevant SoP factor to require that the clinical onset of IHD occur within five years of service-related exposure;
  3. Whether the Tribunal was wrong to find that there was no evidence that Mr Knight’s service made a material contribution to his IHD.

The Court’s Consideration

The short answer to the first question was “no”.  Both parties believed the Tribunal did not move beyond the third step of Deledio, and it is only at the fourth step that fact-finding is to occur.  Her Honour accepted one of the applicant’s submissions that the Tribunal had applied the wrong test, asking itself whether Mr Knight’s service materially contributed to his IHD, instead of whether the relevant SoP factor was contributed to in a material degree by his service.  The Tribunal’s misstatement of the statutory test meant the Tribunal had erred in law.

In relation to the second question of law, the applicant contended that it was unnecessary that IHD be contracted within five years of operational service in the required atmosphere.  The respondent maintained that the Tribunal’s interpretation was correct that the last exposure to the required atmosphere had to have occurred during service.  In Justice Katzmann’s view the Tribunal misconstrued the SoP.  The SoP sets out factors that can be connected to service, and whether or not a factor is connected with the relevant service is answered by applying s 196B(14) of the Act.  Her Honour also considered the Tribunal’s reliance on Repatriation Commission v Newson [2008] FCA 401 to support its conclusion that the word “exposure” in the relevant SoP factor was not a reference to “generic exposure” but to “exposure during a period of relevant service” was misconceived as that case was distinguishable.  Further, Justice Katzmann did not agree with the Tribunal’s decision to distinguish Kattenberg from the present case.  The Tribunal’s failure to ask itself the right question in relation to the SoP factor amounted to an error of law.

Her Honour considered it was not necessary to answer the third question of law, but pointed out it wrongly assumed that the relevant causal connection was between the disease and the service - when it is between the factor and the service.

Formal decision

Justice Katzmann allowed the appeal and the matter was remitted to the Tribunal to be determined according to law.

Editorial note

In Knight two errors of law were made by the Tribunal.  Firstly, the Tribunal misstated the statutory test, asking itself whether Mr Knight’s service materially contributed to his IHD, instead of whether the relevant SoP factor was contributed to in a material degree by his service.  Secondly, the Tribunal wrongly interpreted the relevant SoP factor to require that the clinical onset of IHD occur within five years of service-related exposure, rather than within five years of Mr Knight’s last exposure to the required atmosphere. 

It was not in dispute that Mr Knight’s death was caused by IHD, or that during his naval service he was exposed to a visible tobacco smoke haze in an enclosed space for at least 1000 hours.  On remittal, it will be interesting to see what the Tribunal decides about whether his service made a material contribution to the SoP requirements.

All Practice Notes