Anne Morley and Repatriation Commission

Case [2012] AATA 584

[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.

.............[sgd].........................................................

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 564

Repatriation 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

  1. 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. 

  2. 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.

  3. 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. 

  4. The Repatriation Commission (the Commission) disputes that Mr Morley’s death was connected to his service.

    LEGISLATIVE FRAMEWORK

  5. 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).

  6. 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.

  7. The approach to be taken in applying these provisions is set out in

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Details
AGLC
Anne Morley and Repatriation Commission [2012] AATA 584
Case
[2012] AATA 584
Decision Date

CaseChat Overview and Summary

The case of Anne Morley and the Repatriation Commission revolves around a claim by a war widow seeking veterans' entitlements, specifically whether the veteran's death was connected to his operational service. The veteran, Mr Morley, died from a malignant neoplasm of the bladder, and the primary legal issue was whether his smoking habit was related to his operational service. The decision of the Veterans' Review Board was set aside on judicial review.

The court was tasked with determining whether the material presented pointed to a connection between Mr Morley's smoking and his operational service. The court considered the statutory framework, which required a reasonable hypothesis to be raised based on the whole of the material. The respondent argued that the discrepancies in the evidence did not point to a connection, while Mrs Morley contended that the differences were not irreconcilable and could be explained by the different questions asked in the questionnaires.

The court found that there was sufficient material pointing to a connection between Mr Morley's smoking and his operational service. Evidence from questionnaires and a Statutory Declaration indicated that Mr Morley began smoking during his service, and his smoking habit intensified during that period. While there were discrepancies in the evidence, the court concluded that they did not preclude a reasonable hypothesis from being raised. The court found that Mr Morley's smoking habit was related to his operational service, and thus, the decision of the Veterans' Review Board was set aside.

The final orders of the court were that the decision of the Veterans' Review Board was set aside, and the matter was remitted back to the Board for reconsideration in light of the court's findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 - 1960Q.3 Approximately how many cigarettes per day … did you smoke at that time?20. 1 packetQ.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.