Repatriation Commission v Thompson

1. This is an application by Francis Thomas Richards (the applicant) for review of a decision of the Repatriation Commission (the respondent) dated 19 February 2002, that the applicant was not eligible for treatment for any injury suffered, or disease contracted (entitlement to Gold Card) under s85(4A) of the Veterans' Entitlements Act 1986 (the Act).

2. At the hearing of this matter on 1 November 2002 conducted by telephone the applicant represented himself. Due to industrial action by the respondent's representatives, there was no appearance for the respondent.

3. The applicant was born on 18 August 1925. He served in the Royal Australian Air Force from 27 August 1943 to 16 October 1945 as a trainee pilot in military training schools and units in Victoria, New South Wales before his discharge at the end of World War 2.

4. On 21 November 2001 the applicant lodged an application for a Gold Card. On 6 December 2001 a delegate of the respondent refused the claim because the applicant had not rendered qualifying service under the Act, as he did not incur danger from hostile forces of the enemy. The applicant sought review of that decision. On 19 February 2002 a senior delegate of the respondent affirmed the decision. On 5 April 2002 the applicant lodged an application with the Tribunal for review of the decision.

5. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T9), together with one exhibit (Exhibit R1) tendered on behalf of the respondent.

6. The applicant told the Tribunal that he had incurred danger during service because training flights were risky. He stated that official military records confirmed that many deaths and serious injuries occurred in the training of pilots throughout Australia during World War 2. He referred to particular incidents where trainees and instructors died as a result of accidents at locations where he undertook his training.

7. The applicant said that on 12 and 26 April 1945 he was involved in long-range training flights in B-24 Liberator aircraft to Middleton Reef off the east coast of Australia while undertaking training at 7 Operational Training Unit at Tocumwal, New South Wales. He noted that the flights were recorded in his log-book, which was certified correct by the officer in command. The applicant stated that this training constituted service outside Australia, and he agreed that no enemy forces were encountered or were in the vicinity during the flights.

8. In a written report (Exhibit R1) dated 17 July 2002 Mr R. Piper, of Military Aviation Research Services, confirmed that at the training units attended by the applicant a number of fatal and non-fatal accidents occurred, involving various types of aircraft. He said that Middleton Reef was situated 600 kilometres off the east coast of Australia and was used as a remote bombing range and/or navigation exercise target during World War 2. Mr Piper said that there was no record that flights operated by the training unit to which the applicant was attached in April 1945 or at any other time encountered enemy air or naval forces. He said that Japanese submarines had withdrawn from Australian waters in June 1943. He also stated that there was no record that other training units encountered enemy forces.

(4A) A veteran is eligible to be provided with treatment under this Part for any injury suffered, or disease contracted, by the veteran, whether before or after the commencement of this Act, if:

(b) the veteran has rendered qualifying service during the period covered by paragraph (b) of the definition of period of hostilities in subsection 5B(1); and

(i) the Department has notified the veteran in writing that he or she is or will be eligible for such treatment; or

(ii) the veteran has notified the Department in writing that he or she seeks eligibility for such treatment.

10. Section 7A(1)(a)(i) of the Act provides that a person has rendered qualifying service if the person has:

(i) rendered service, during a period of hostilities specified in paragraph (a) or (b) of the definition of period of hostilities in subsection 5B(1), at sea, in the field or in the air in naval, military or aerial operations against the enemy in an area, or on an aircraft or ship of war, at a time when the person incurred danger from hostile forces of the enemy in that area or on that aircraft or ship;

11. In its Statement of Facts and Contentions dated 13 August 2002 the respondent referred the Tribunal to Repatriation Commission v Thompson (1988) 44 FCR 20 in which the Full Federal Court considered the meaning of the words incurred danger and stated at p.23-24:

...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 at risk or in peril of harm from hostile forces. A serviceman does not incur danger by merely perceiving or fearing that he may be in danger. The words "incurred danger" do not encompass a 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.

The danger incurred must of course be more than a merely fanciful danger or a danger so minimal that the rule of de minimis applies. But to say that is not to give a flavour to the word. Rather it is to use it in its ordinary sense.

12. In reaching its decision the Tribunal takes into account the relevant documents and the written and oral evidence. The standard of proof to be applied by the Tribunal in determining this matter is specified in s120(4) of the Act, namely, to the Tribunal's reasonable satisfaction.

13. The Tribunal accepts the evidence contained in the report by Mr Piper that there were no enemy forces in the vicinity of Middleton Reef at the time the applicant took part in training flights in 1945, or at any other time during his service. Although flight training contained inherent risks, the Tribunal finds that the applicant did not incur danger from hostile forces of the enemy in that area or on that aircraft or ship in the course of training flights. Therefore, the Tribunal finds that the applicant did not render qualifying service as defined in s7A(1)(a)(i) of the Act and does not satisfy s85(4A)(b) of the Act. Consequently, the applicant is unable to satisfy s85(4A) and there is no necessity for the Tribunal to consider the factors in s85(4A)(a) or s85(4A)(c).

14. The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

Solicitor for respondent: Advocacy Section, Department of Veterans' Affairs