Anne Morley and Repatriation Commission
[2012] AATA 584
•31 August 2012
[2012] AATA 584
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5585
Re
Anne Morley
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 31 August 2012 Place Sydney The decision under review is set aside and the decision substituted that Mrs Morley is entitled to a widow’s pension with effect from 28 February 2011.
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Senior Member J F Toohey
CATCHWORDS
VETERANS ENTITLEMENTS – claim by war widow – malignant neoplasm of the bladder – whether veteran’s death connected to his operational service – whether veterans smoking habit related to operational service – decision under review set aside
LEGISLATION
Veterans’ Entitlements Act 1986 ss 8(1), 13, 120, 120A and 196B(14)
CASES
Bull v Repatriation Commission (2001) FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Gilkinson v Repatriation Commission [2011] FCAFC 133
MacLean v Repatriation Commission, (2001) FCA 1505
Owens (AJ) v Repatriation Commission (1995) 38 ALD 481
Re Byrnes and Repatriation Commission (1993) 177 CLR 564Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles concerning Malignant Neoplasm of the Bladder, No 96 of 2011, Factor 6(a)
REASONS FOR DECISION
Senior Member J F Toohey
31 August 2012
BACKGROUND
Mr Desmond Morley served as a radio and radar technician in the Royal Australian Navy from September 1956 to July 1963. Between April 1960 and March 1962, he had four periods of operational service, each lasting several weeks, in the Far East Strategic Reserve.
Mr Morley died on 28 February 2011 at the age of 75. A cause of death listed on his death certificate was cancer of the bladder, several years. It is agreed that his kind of death, for the purposes of the Veterans’ Entitlements Act1986 (the Act), was malignant neoplasm of the bladder.
Mr Morley was a heavy smoker for much of his life. His widow, Anne Morley, contends that his operational service contributed to an increase in his smoking and, ultimately, to his death. She claims a war widow’s pension.
The Repatriation Commission (the Commission) disputes that Mr Morley’s death was connected to his service.
LEGISLATIVE FRAMEWORK
By s 13 of the Act, Mrs Morley will be entitled to a widow’s pension if her husband’s death was war-caused within the meaning of s 8(1). As her case relies on her husband’s operational service, the standard of reasonable hypothesis applies. That means that I must determine that Mr Morley’s death was war-caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. I shall be so satisfied if the material before me does not raise a reasonable hypothesis connecting his death with his service: ss 120(1) and 120(3).
Whether a hypothesis is reasonable is assessed by reference to Statements of Principles (SOPs) issued by the Repatriation Medical Authority from time to time: s 120A.
The approach to be taken in applying these provisions is set out in Repatriation Commission v Deledio (1998) 83 FCR 82 and involves a process by which, in this case, I must:
(i)determine whether all of the material points to a hypothesis connecting Mr Morley’s death with the circumstances of his service;
(ii)if so, ascertain whether there is a relevant SOP in force;
(iii)if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it is “upheld” in the sense that it is consistent with the “template” in the SOP; and then
(iv)consider whether I am satisfied, beyond reasonable doubt, that Mr Morley’s death was not war-caused.
It is only at the fourth stage of the process that fact-finding is permitted.
In all other matters, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).
STATEMENT OF PRINCIPLES
When these proceedings commenced, Mrs Morley relied on SOP No 95 of 2007 Malignant Neoplasm of the Bladder. It is now agreed that the current SOP, No 96 of 2011, applies. It is also agreed that, in this case, nothing turns on any difference between the two.
Before it can be said that a reasonable hypothesis has been raised connecting Mr Morley’s death from malignant neoplasm of the bladder with the circumstances of his service, at least one of the factors in cl 6 of the SOP must exist. Mrs Morley relies on Factor 6(a):
[S]moking at least 2.5 pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the bladder, where smoking commenced at least ten years before the clinical onset of malignant neoplasm of the bladder.
A pack year of cigarettes means consumption of the equivalent of one pack of twenty cigarettes per day for a period of one calendar year, or 7300 cigarettes: cl 9.
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if it arose out of or was attributable to, that service, or it was contributed to in a material degree by, or was aggravated by, that service: s 196B(14) (and see: Gilkinson v Repatriation Commission [2011] FCAFC 133).
IS A REASONABLE HYPOTHESIS RAISED CONNECTING MR MORLEY’S DEATH WITH HIS OPERATIONAL SERVICE?
There is no dispute that Mr Morley smoked at least 2.5 pack years as defined in cl 9 of the SOP for at least ten years before the clinical onset of his cancer of the bladder. The undisputed evidence is that he smoked a packet of cigarettes a day from around 1960.
Although the date of onset of his bladder cancer is not clear, in a Statutory Declaration in January 2002, referred to further below, Mr Morley stated he had had malignant neoplasm of the bladder for at least ten years and had it removed in 1992. He gave a similar account to Dr Patrick Morris, a psychiatrist to whom he was referred in 2002 for depression.
I am satisfied that there is material which points to Factor 6(a) in the SOP.
At issue is whether there is a connection between Mr Morley’s smoking and his operational service. Material concerning his smoking is found in the following:
(i)a Smoking Questionnaire which he completed in January 2000 in connection with a claim for a disability pension (which was refused);
(ii)a second questionnaire which he completed in January 2002 in relation to a claim for disability pension (which was also refused);
(iii)a Statutory Declaration which he made in April 2002 about his responses to the smoking questionnaires;
(iv)a decision of the Veterans’ Review Board (the Board) on 5 December 2002.
The first smoking questionnaire
In the first questionnaire, Mr Morley gave the following responses:
Q.2 In what year did you take up smoking?
1956 (during service)
Q.4 Why did you take up smoking?
Navy life – to be in it
In relation to the quantities of cigarettes he smoked during and after service, Mr Morley wrote that, in 1956, he smoked 5-6 cigarettes a day because it was “the in thing – navy life”; from 1959 to 1963, he smoked 20 to 30 a day because he “became addicted”; from 1963, after he left service, he smoked a packet of 30 cigarettes a day because he was “addicted”.
The second smoking questionnaire
Mr Morley completed the second questionnaire after seeing Mr Peter Ellis, a volunteer pension officer and advocate, in January 2002. Mr Ellis gave oral evidence that he asked Mr Morley for details of his responses to the first questionnaire.
The second questionnaire asked similar questions, but in a rather different form from the first. Mr Morley gave the following responses:
Q.2 When did you first start smoking cigarettes on a regular basis?
During service whilst at sea - 1960
Q.3 Approximately how many cigarettes per day … did you smoke at that time?
20. 1 packet
Q.4 Why did you start to smoke cigarettes on a regular basis?
Was worried about service at sea. Cigarettes were cheap. Everyone else was smoking.
Q.6Did the amount smoked per day ever change since you first started smoking on a regular basis?
Yes.
Asked how his smoking habit changed over time, Mr Morley did not specify any period. He stated there was a “gradual increase” to “20 to 30” cigarettes a day, the reason being “increased habit”.
Mr Morley’s Statutory Declaration
Mr Ellis saw Mr Morley for a second time on 5 April 2002. His claim for pension had been rejected and Mr Morley had sought review by the Board. Mr Ellis helped him compile a Statutory Declaration to explain the apparent discrepancies in his responses to the questionnaires.
In the Statutory Declaration, Mr Morley stated that, in 2000, he saw a pension officer about the possibility of making a claim in relation to his bladder cancer and heart disease. He “did not recall much about the process” but he recalled the officer asking him a number of questions and being asked to sign some documents. While the interview was being conducted, he gave the officer his service documents. He stated:
Even to this point in time I do not have much recollection as to what was said on the first application nor do I remember much about what the result was.
Mr Morley stated that, in January 2002, after being alerted to his possible entitlement to a service pension, he arranged to see another pension officer. He saw Mr Ellis who asked him about his medical conditions and whether he had claimed for them or not, and Mr Ellis asked him “considerable questions” about his smoking history. He stated:
I recall that during this time I referred to my service record as a guide to when I increased my smoking whilst serving in the navy.
He stated that the signature on the first questionnaire was his but the other handwriting on the document was not. He disagreed with “some of the information” in it. In particular, he disagreed with the answer that from 1959 to 1963 “became addicted … 20-30 cigarettes a day”.
Mr Morley stated that his smoking increased in 1960 as indicated in the second questionnaire. He said that Mr Ellis asked him a lot more questions about what he was doing at the time that his smoking increased, and why it increased. He stated:
I used my service record as an aid when I indicated the date of 1960.
I now wish to state in most positive terms that I increased by smoking intake when I went to sea on the HMAS Melbourne for the second time. I was posted to the Melbourne on this occasion on the 15 February 1960 as Acting Leading Hand. I recall that we went into Malayan wasters during this time at sea. I remember that life aboard the ship was far more serious than it had previously being (sic) and I suffered substantial worry concerning my new duties and responsibilities as acting leading hand. This was the reason that I increased my smoking habit and it occurred whilst at sea and whilst in the Malayan waters.
Prior to this I was only a very light smoker. Following this time at sea I increased my smoking habit many times over and I maintained that habit right up until present times.
The Veterans’ Review Board hearing on 5 December 2002
On 5 December 2002, Mr Morley attended a hearing of Board in relation to his claim for pension. A transcript of the hearing is not available. The Board’s written reasons show the following.
Mr Morley’s advocate, Mr Tony Latimore, stated that his smoking increased significantly during operational service, from five to six cigarettes a day to between 20 and 30 a day; that, when he joined the navy, he had only experimented with smoking; he began smoking after joining up and gradually reached about five to six cigarettes a day; during his first period of operational service, in 1960, his smoking increased; cigarettes were cheap and everyone lit up after action stations.
Mr Latimore told the Board that Mr Morley had problems with his memory which could account for the differences in his answers in the two questionnaires. Mr Latimore did not know how the first questionnaire came to be completed but he was aware that Mr Ellis has helped with the second.
The Board then telephoned Mr Morley, apparently to clarify his answers about his smoking. The Board noted in its written reasons that he said he could not recall when he started smoking cigarettes on a regular basis, although he had only experimented before joining the navy. He said he smoked in the navy because others were smoking and it was due to “peer pressure”. The Board recorded that:
[A]lthough questioned by the Board and his advocate, [he] could not specify the rate of cigarettes or any time when he might have smoked more. He said it increased over time, and he likened it to finding yourself overweight and realising you have been having an extra serving of pudding.
Mr Morley acknowledged to the Board that his memory was “not good” and said he was undergoing tests to determine the problem. He said it had been getting worse, but he could not identify when the problem began.
The Board wrote that it was clear from its conversation with him that Mr Morley was having problems with his memory and it was unable to accept the statements in his second questionnaire and the Statutory Declaration. It noted the report of a psychiatrist that Mr Morley had “significant short-term memory impairment”.
Evidence of Mr Ellis
Mr Ellis gave evidence that Mr Morley came to him in January 2002 for help with his second claim for a disability pension, rather than because he was dissatisfied with the outcome of his earlier claim, but it would have come out in the course of their discussion that he was dissatisfied.
Mr Ellis gave evidence that, in contrast to the person who helped Mr Morley complete the first questionnaire (whom he knew), he asked Mr Morley for more details about when his smoking increased and why, especially in relation to his operational service. He recalled that Mr Morley had his service folder with him and referred to it when answering his questions.
Not surprisingly, given that the interview was ten years ago, Mr Ellis could not recall it in detail. However, as he could recall, he was not aware that Mr Morley had any problems with his memory; he spent about two hours with him and he was “quite fluent” and answered questions “quite well”. He was not sure if he asked Mr Morley when he started smoking. He was not sure whether he saw Mr Morley’s responses to the first questionnaire at the time, and he agreed there were substantial discrepancies in his responses. He acknowledged that, in the second questionnaire, Mr Morley said he started smoking in 1960 but in the Statutory Declaration said it increased in 1960, and he could not explain the different responses.
Mr Ellis served as a police officer for many years and has extensive experience in criminal investigations and interviewing witnesses. He now helps some 200 veterans each year. He agreed that it would be difficult to recall a particular individual without documents to refer to.
Evidence of Mrs Morley and Ms Nicholls
Mrs Morley and her daughter, Ms Kylie Nicholls, gave evidence at a hearing of the Board on 5 December 2011. The transcript shows that Mrs Morley told the Board that, when she met her husband in 1963, he was a heavy smoker and smoked about a packet of cigarettes a day and she tried over many years, without success, to get him to give up. She said he did not talk much to her about his operational service, other than to talk about the noise of the guns, which was frightening. Ms Nicholls confirmed that her father did not like to talk about his operational service.
A cause of Mr Morley’s death, according to his death certificate, was “dementia, several years”. Mrs Morley and Ms Nicholls told the Board that he had first shown signs of dementia in about 1990, possibly earlier. Mrs Morley said it only affected his short term memory. Ms Nicholls agreed that he suffered from short term memory loss but also said he “would only remember longer term memories when focussed on that point”.
Dr Morris’ report
According to Dr Morris’ report dated 28 February 2002, Mr Morley reported being forgetful “for the past few years”. He could not remember where he had put things and his wife had commented on his forgetfulness. He reported getting lost at home sometimes. Dr Morris concluded that he had “significant short term memory impairment” which should be investigated to see whether it could be due to vascular dementia or Alzheimer’s Disease.
CONSIDERATION
I have to determine whether the material “points to” a connection between the level of Mr Morley’s smoking and his operational service Bushell v Repatriation Commission (1992) 175 CLR 408 at 413. In undertaking this task, I must have regard to “the whole of the material”: s 120(1). At this stage, no fact-finding is permitted; difficulties of proof, or the credibility of the material, are matters for consideration in the fourth step of the Deledio process.
The respondent contends that the material as a whole does not point to the hypothesis, and it is therefore not reasonable, because it does not point to a connection between any increase in Mr Morley’s smoking and his operational service. The respondent relies on Bull v Repatriation Commission (2001) FCA 1832, MacLean v Repatriation Commission, (2001) FCA 1505, and Owens (AJ) vRepatriation Commission (1995) 38 ALD 481.
The respondent points in particular to the discrepancies between Mr Morley’s responses in the first and second questionnaires, and the Statutory Declaration, and the lack of any reference to operational service in the first questionnaire or, apparently, at the Board hearing in 2002.
For Mrs Morley it is contended that it cannot be said that a reasonable hypothesis is not raised merely because of apparent discrepancies in the material, and that the differences are not irreconcilable. It is submitted that discrepancies between the questionnaires can be explained by the different questions asked in them, and by Mr Ellis’ closer questioning of Mr Morley. By way of example, it is said that Mr Morley’s statement in the second questionnaire that he first started smoking cigarettes in 1960 (rather than in 1956 as he started in the first) is explained by the question “When did you first start smoking on a regular basis” (emphasis added).
The Commission submits that is at odds with Mr Morley’s statements that he smoked five to six cigarettes a day from 1956 and his description of himself as a “light smoker”, both of which indicate regular smoking before 1960. Further, that there is no reason to think the Board’s reasons did not reflect accurately what Mr Morley said at the hearing; that he did not refer to his operational service or link in any way to any increase in his smoking, and could recall very little at all about it. For Mrs Morley it is submitted that it is possible that he found being questioned by telephone confusing.
It is further contended for Mrs Morley that Dr Morris refers to Mr Morley’s short term memory impairment only, whereas he was being asked about the more distant past. Ms Nicholls thought that her father’s long-term memory was affected as well. Mrs Morley thought only her husband’s short-term memory was affected.
The formation of the opinion called for by s 120(3) involves an assessment of the factual material before the Tribunal, and the Tribunal must look at all of the material, not just some of it: Bull (above). Section 120(3) is not concerned with conflicts in the material, whether of opinion or fact, but whether there is “some material” which calls for a determination under s 120(1): Bushell (above) at 413, 415; Re Byrnes and Repatriation Commission (1993) 177 CLR 564. That said, a reasonable hypothesis requires more than a mere possibility, it must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be “raised” by material – that is, the material must point to and not merely leave open a hypothesis as a reasonable hypothesis: East v Repatriation Commission (1987) 16 FCR 517.
In MacLean (above) the Full Federal Court upheld a decision of the Tribunal that no reasonable hypothesis was raised where the Tribunal had found there was no evidence pointing to any lack of mobility being attributable to the veteran's operational service or any such a lack having contributed to, or causing his death. In my view, that case can be distinguished from the present case.
The discrepancies in Mr Morley’s statements are not such that they infect the “whole of the material”. Plausible explanations have been advanced for most of them. Without finding any facts at this stage, I am satisfied that the material, considered as a whole, raises a reasonable hypothesis connecting his smoking to the level required by the SOP with the circumstances of his operational service.
Am I satisfied beyond reasonable doubt that Mr Morley’s death was not war-caused?
There is clearly reason to doubt the information provided by Mr Morley in the questionnaires and the Statutory Declaration. However, I agree that the discrepancies are not irreconcilable. In particular, whereas the first questionnaire asked when did he “take up smoking” (to which Mr Morley answered “1956”), the second asked when he first started smoking “on a regular basis” (“1960”). Further, although the second questionnaire describes the reason for a “gradual increase” to “20-30” per day as “increased habit”, it also refers to regularly smoking 20 per day because he was “worried about service at sea”. There seems little doubt from his responses that, prior to service, he was a regular, but relatively light, smoker.
Mr Ellis was a credible witness, although he conceded could not recall his interview with Mr Morley in any detail. I accept that he questioned Mr Morley closely about the relationship between his smoking and his operational service. I accept that Mr Morley referred to his service records while completing the questionnaire.
The respondent contends that material inconsistent with the hypothesis has been proved beyond reasonable doubt, and says it is beyond reasonable doubt that Mr Morley told the Board, when asked by the Board and his advocate, that he could not specify the rate or cigarettes or any time when he might have smoked more.
The reliability of Mr Morley’s responses is clearly open to question given the evidence that he had suffered dementia for some years. This condition is the likely explanation for his statements about his poor memory and his evidence before the Board in 2002. For Mr Morley it was suggested that speaking to the Board by telephone might have confused him, but that is speculation. It may be that he had no memory at all that day but, if so, that does not make all of his statements necessarily unreliable and, while it may be beyond reasonable doubt that he made that statement, that is not the same as my being satisfied beyond reasonable doubt that his death was not war-caused.
Taking into account the clear statement made by Mr Morley in the Statutory Declaration, Mr Ellis’s evidence about how it was compiled, and the plausible explanations for the discrepancies in the material, I am not be satisfied beyond reasonable doubt that there is no sufficient ground for finding that Mr Morley’s death was war-caused.
The decision under review is set aside and the decision substituted that Mrs Morley is entitled to a widow’s pension with effect from 28 February 2011.
I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ...........[sgd].............................................................
Associate
Dated 31 August 2012
Date(s) of hearing 28 August 2012 Solicitors for the Applicant Mr G Isolani, KCI Lawyers Solicitors for the Respondent Mr N Bunn, Department of Veterans' Affairs Advocacy Section
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