FCAFC 83
|COURT||Federal Court, Sydney|
|JUDGE||FINN, GILMOUR & PERRAM JJ|
|DECISION||The appeal was DISMISSED|
|ISSUES||Whether The Tribunal erroneously imposed a burden of proof- whether the last exposure to tobacco smoke during operational service must be within five years of the clinical onset of ischaemic heart disease in order for cl 6(i) of the Statement of Principles to be satisfied.|
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. Justice Katzmann allowed the appeal and the matter was remitted to the Tribunal to be determined according to law. The Administrative Appeals Tribunal decided that Mrs Knight should be granted a war widow’s pension . The Repatriation Commission appeals to this Court from that determination.
Grounds of appeal and Court’s consideration
Erroneous consideration of connexion between service and death
The Full Court noted the tribunal’s reasoning;
With regard to s196(14)(d), in the tribunal’s view the facts raised do point to Mr Knight’s operational service contributing in a material degree to his death as a result of ischaemic heart disease.
The Full Court agreed this sentence suggests the tribunal asked itself whether Mr Knights service materially contributed to ischaemic heart disease. This is not the inquiry required by s196B(14)(d) which seeks to discern a connexion not between service and the veteran’s disease or death but instead between the service and the factor. The Full Court also noted the Court had already held in this case that it is an error to inquire into whether there is a connexion between service and death and that the statutory inquiry is whether there is a connexion between service and the factor. The Court noted the error was not material to the outcome of the case.
The second argument by the Commission was that the tribunal had taken into account the statement that Mr Knight had been exposed to tobacco smoke for ‘ close to 24 hours a day’. The Court agreed this is not a relevant matter and the only issue was whether the material pointed to the veteran having been exposed to 1000 hours or more. The quantum of the daily exposure was not relevant.
Findings on clause 6(i)
The third error relied upon by the Commission was that the tribunal failed to make findings in relation to the second part of clause 6(i) that is ‘ the last exposure did not occur more than five years before the clinical onset of IHD. The Full Court considered the tribunal’s reasons showed they were well aware of the need for the last exposure to occur within five years of 1996.
Failure to give reasons
The Commission submitted the tribunal failed to give reasons for its conclusion that “ in Mr Knight’s case, Sop factor was “contributed to in a material degree by, or was aggravated by service”. This, of course, was not the Tribunal’s conclusion . The Court noted the Commission’s correct submission in relation to its first argument that the tribunal erroneously found a connexion between his service and is death. The Court held there was no utility in considering whether the tribunal exacerbated that error by failing to give adequate reasons for its erroneous conclusion.
Erroneous imposition of onus of proof
The commission submitted that the tribunal conceived the Commission bore an onus of proof. It pointed to s120(6).
The Court noted the tribunal indicated that the relevant issue was whether it was so satisfied thereby correctly avoiding any notion involving a burden of proof.
The second limb of cl 6(i)
The court noted the issue of whether cl 6(i) requires that exposure which occurs within five years of clinical onset be connected to service was resolved adversely to the Commission by Katzman J. The court noted there was no appeal. And went on to say there is an issue of estoppel between the parties on that question.
The appeal dismissed with costs.
The Full Court noted the SoP factor requires 1000hrs of exposure to passive smoke and the last exposure to is not to occur more than 5 years before the clinical onset of IHD.
In this case the tribunal was aware of the need for the last exposure to occur within 5 years of 1996( the clinical onset of IHD). That is the last exposure was to occur between 1991 and 1996.
The tribunal had found on the facts that Mr Knight had been exposed to 1112 hrs of smoke during his operational service and a further 6358 hrs during other service. Although there was 28 years between Mr Knight’s operational service and the clinical onset of IHD in 1996, the tribunal found that Mr Knight had a long history exposure to tobacco smoke while working for defence and the way in which the factor is to operate means the 28 years between operational service and clinical onset is not a barrier.
For further reading on the requirement of the second limb of cl 6(i) please see the judgment of Katzman J in the practice note in Knight v Repatriation Commission.