Austin and Repatriation Commission - [2001] AATA 810

DECISION AND REASONS FOR DECISION [2001] AATA 810

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/618

VETERANS APPEALS DIVISION        )
           Re      LYNETTE MARGARET AUSTIN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Dr P Fricker, Member Mr A Argent, Member

Date18 September 2001
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in substitution decides that widow's pension is payable to Mrs Austin in respect of the war-caused death of her husband, with effect from 10 June 1998.
  (Sgd) Joan Dwyer
  Senior Member

WIDOW'S PENSION – late veteran in Royal Australian Navy - only a light smoker prior to voyage which included 10 days operational service - whether service as a mechanical engineer engaged below deck during operational service in Vung Tau Harbour Vietnam contributed to increased smoking habit – evidence from fellow sailor as to stres and anxiety on voyage and as to veteran's smoking habit - excerpt from book "The Vung Tau Ferry and Escort Ships" where Lieutenant Commander Knott of HMAS Duchess wrote of suffering of those serving below decks as loud explosions reverberated through the ship – decision set aside

Veterans Entitlement Act 1986 s120(1) and (3)

Statement of Principles Instrument No. 38 of 1999

Gorton v Repatriation Commission [2001] FCA 286

Repatriation Commission v Deledio (1998) 27 AAR 144

REASONS FOR DECISION

18 September 2001 Mrs Joan Dwyer, Senior Member Dr P Fricker, Member Mr A Argent, Member

This is an application for review of a decision of the Repatriation Commission made 11 September 1998 and affirmed by the Veterans Review Board on 17 March 2000. That decision refused Mrs Austin's claim for war widow's pension under s 8 of the Veterans Entitlement Act 1986 ("the Act"). Mr Liefman, a solicitor, appeared for Mrs Austin. Mr Herman, an advocate with the Department of Veterans Affairs, appeared for the Repatriation Commission.
The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits tendered during the hearing. Mrs Austin gave evidence. Evidence on her behalf was also given by Mr Cardwell who served with Mr Austin as a junior recruit in HMAS Leeuwin and as an ordinary seaman in HMAS Yarra. Mr Austin died suddenly at age 43 as a result of a heart attack on 8 July 1993. He was a smoker. The issue is whether his death can be found to be war caused under s 8 of the Act by reason of his smoking.
Mr Austin served in the Royal Australian Navy from 5 January 1966 to 4 January 1986. He enlisted as a 16 year old junior recruit. His 20 years of service included a period of some 10 days, from 22 December 1967 to 1 January 1968, of eligible and operational service, being part of a voyage whilst serving in HMAS Yarra. It also includes a period of eligible service from 1972 to 1986 but that period is of no relevance to the issue for determination.
The Tribunal must apply the relevant Statement of Principles ("SoP") for ischaemic heart disease. On the basis of the decision of the Full Court of the Federal Court in Gorton v Repatriation Commission [2001] FCA 286, that is the SoP currently in force, unless the veteran claims that an earlier SoP, in force when the claim was first decided, is more beneficial. The standard of proof in respect of the period of operational service is that in s 120(1)and (3) of the Act which provide as follows:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:   This subsection is affected by section 120A.
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:   This subsection is affected by section 120A.
The process of deciding whether the material before the Tribunal raises a reasonable hypothesis is laid down in Repatriation Commission v Deledio (1998) 27 AAR 144 at p206 as a four step process. As to the first step, the hypothesis relied on by Mr Liefman was that Mr Austin increased his smoking habit as a result of his operational service on the voyage from Singapore to Vung Tau and back to Singapore, when HMAS Yarra was performing escort duties for HMAS Sydney.
The material on which Mr Liefman relied, as pointing to that hypotheses was:
(1)the evidence of Mrs Austin who said in her statement (A3) that in 1967, prior to leaving Melbourne in HMAS Yarra in May 1967, Mr Austin was a very light smoker. She said that when she next saw him, after HMAS Yarra returned to Melbourne in April 1968, she noticed that his level of consumption of cigarettes had changed. In her statement she said:
It was now a definite habit he was smoking more and on a regular basis. From then he brought cartons of tailor made cigarettes home on leave so that he had sufficient quantities of cigarettes available to keep him going.
She explained that cigarettes were cheaper on board ship.
(2) a statement from Mr Cardwell (A4) who said:
I joined the R.A.N. as a fifteen and a half year old JR. (Junior Recruit) at HMAS Leeuwin on 5th Jan 1966. My official number is R95220 just six ahead of Kevin Austin. At HMAS Leeuwin Kevin and I served in the same Division (Rhodes/Howden) It was during this time (Early 1966) that a large number including Kevin Austin and myself commenced smoking on a regular basis. (less than 5 per day). The JRs had a separate canteen to the rest of the ratings (Ship's Company) all JRs were aged from fifteen and a half to sixteen and a half years. Cigarette and tobacco sales were unrestricted during this time. On no occasion were we discouraged from smoking by our superiors or the medical staff. The only restriction was financial, JRs were only paid an allowance ($12-00 per fortnight) And the balance of our pay was given in a bank passbook at years end on posting to our first ship. Kevin, like myself became social smokers, a few smokes to help relax at days end.
For Kevin, myself and nineteen other JRs, HMAS Yarra, a destroyer escort. On joining HMAS Yarra on 1st Jan 12967 we JRs found ourselves in a different world. Gone were the strict routines of Recruit School. Shipboard life in dockyard was pretty laid back and with access to "Duty Free Cigarettes" habits changed. By this time, Kevin and I were messmates. Living on 3 Mike Starboard Messdeck (that is on 3 deck, water tight section Mike on the right hand side of the ship) with 20 other JRs and Ordinary Seamen. A JR was promoted to Ordinary Seaman on his seventeenth birthday. Kevin, as I remember him was still only a social smoker. (emphasis added) On 11th May 1967 HMAS Yarra sailed from Melbourne for the Sydney/Jervis Bay area for Post re-fit, pre deployment "Work-up" This was a very stressful period for all of us Ordinary Seamen, trying to fit into the Ships Company as a part of the team. The long hours and hard work. It was at this time that it was stressed on us that "if anything happens we are the front line"
HMA Yarra sailed from Darwin on 15th Sept 1967 and arrived at Singapore on 20th Sep 1967 under the Command of the Flag Officer 2, Far East Fleet. (Far East Strategic Reserve) It was during this deployment that HMAS Yarra was allotted for duty as escort to HMAS Sydney to VungTau, Sth Vietnam. Once again it was impressed on us most strongly "Sydney and the soldiers are relying on us" On rendezvous with HMAS Sydney at Sunda Strait (Java/Sumatra) exercises of various "States of Readiness" were exercised continuously. We were under considerable stress during this period. Kevin Austin was an ORD.M(E) Ordinary Seaman Mechanical Engineer. His cruising, defence and action stations were below decks in the machinery spaces. Even our messdeck was below the waterline.(3 Deck) While at anchor in Vung Tau harbour the Ships Company remained at a heightened State of Readiness, "Operation Awkward – State 2, Condition Y" ie. After Action Stations on entering VungTau the crew were stood down to defence watches – armed upperdeck sentries, divers ready and in the water doing random sweeps of the ships hull (Yarra and Sydney) Our sea boat and zodiac boats in the water throwing 14oz TNT scare charges, also at random intervals, into the sea to deter North Vietnamese swimmers from attaching explosive charges to the ships hull, it was believed that the North Vietnamese swimmers were a real threat to us and HMAS Sydney. For those below decks this was a most harrowing time, the charges would go off without notice with a very loud concussion. The feeling was "Theirs or Ours" and the expectation to see the hull had been breached.
This strain was continuous for the whole time at anchor in VungTau. It was during this time that Kevin, myself and others smoked quite heavily, specially when not on watch. Or in the case of engineering sailors even when on watch. My recollections of this time was that those of us who smoked, smoked quite heavily during and after this period. (emphasis in this paragraph added)
After HMAS Yarra had escorted HMAS Sydney to Mombok Strait (East Java) we were to go to Bangkok with HMAS Stuart but were diverted to HongKong at the last moment. During this passage one night we closed up at Action Stations on dusk, later going to Defence Stations for the remainder of the night then Action Stations again at dawn. It was only in later years that we found out that we were intelligence gathering off the coast of Vietnam. We knew something was going on because the Call to Action Stations was not preceded with "for exercise-for exercise-for exercise" as was with all exercise routines. Non smokers were the exception, and in the messdeck at times the smoke levels were high. At times, specially for non smokers considering the poor ventilation the atmosphere became quite unbearable.
The last that I saw of Kevin Austin he was a heavy smoker (probably over 30 per day) in April 1968. Ken went on to HMAS Cerberus to Engineering School and I to HMAS Watson for torpedo & anti submarine weapons training prior to Submarine service in the United Kingdom. (emphasis in this paragraph added)
(3) Mr Cardwell's statement about the ordinary seamen below decks, which is where Mr Austin served as a mechanical engineer, derived some support from other material before the Tribunal.
Mr Liefman tendered an excerpt from a book, The Vung Tau Ferry and Escort Ships (A5). At page 71 it has an excerpt from a report by Lieutenant Commander Knott who served in HMAS Duchess, another of the escort ships, at a later time in November 1969. While HMAS Duchess was at Vung Tau there was some action ashore. This did not occur while Mr Austin was serving in HMASD Yarra. However, the crew of HMAS Yarra, like the crew of HMAS Duchess, did use scare charges during the time the vessel was at Vung Tau.
Lieutenant Commander Knott of HMAS Duchess wrote that the noise of the scare charges reverberated throughout the ship. He went on to say of the ordinary seamen who filled action stations below decks that they:
[S]uffered, in varying degrees claustrophobic anxiety, disorientation and fright, (a few were sick, as loud explosions from the action ashore and from scare charges reverberated through the ship.
Mr Mulcare of Writeway Research Service (R1) wrote:
On board a ship the sound of a scare charge explosion is typically a loud thud but it varies with, amongst other things, distance from the ship, depth of water, depth of explosion and the characteristics of the seabed. The sound is much sharper and louder in compartments below the waterline.
The experience of those serving in HMAS Yarra would have been less intense than that of those serving below decks in HMAS Duchess, as there was no action on shore and they had been on board ship longer. However, we consider that the ordinary seamen serving below decks in HMAS Yarra would have had somewhat similar reactions to the sound of scare charges, to those described by Lieutenant Commander Knott among the ordinary seamen serving in HMAS Duchess.
Mr Liefman submitted that the material raised a hypothesis that smoking was a common way to deal with fear and anxiety in the war zone and that Mr Austin increased his smoking during this period and kept on smoking at that increased level subsequently.
Applying Deledio, the second issue is whether there is a relevant SoP. There is and the relevant SoP, applying Gorton is Instrument No. 38 of 1999. It provides in paragraph 5(f) the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service. Paragraph 5 includes the following:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service are:
. . .
(f) where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i) smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii) smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease; or

The term "pack years of cigarettes or the equivalent thereof in tobacco products" is defined in paragraph 8 of the SoP:

"pack years of cigarettes or the equivalent thereof, in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes (being the "standard" cigarette pack contents) per day for a period of one calendar year, or
7 300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination.

Step 3 in Deledio says:
If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
The hypothesis relied on by Mr Liefman does not specify a particular number of cigarettes by which the veteran increased his smoking due to the period of operational service, but it claims that he was a light smoker before the commencement of the voyage in HMAS Yarra and a regular smoker thereafter. He continued to smoke at least a packet a day or up to 30 or more cigarettes a day for the rest of his life, said Mrs Austin. That habit therefore lasted for a period of approximately 26 years.
Ischaemic heart disease was not diagnosed during Mr Austin's life. Thus paragraph 4 and sub-paragraph (ii) of factor (f) in the SoP require the smoking of 7300 cigarettes related to relevant operational service, over the period from 22 December 1967 to Mr Austin's death in 1993. What is required is only a very small increase in smoking habit of less than one cigarette a day, subsequent to and related to the operational service. The Full Court of the Federal Court in Repatriation Commission v Williams [2001] FCA 1195 said of sub-paragraph (ii) of factor (f):
[I]n contrast to that in the earlier SoP this factor contained no limitation as to the period of smoking other than it must be before the clinical onset of ischaemic heart disease. It was apparent why the appellant would wish to rely upon that instrument at any new hearing undertaken by the Tribunal.

There seems to be a typographical error in paragraph 16 of the decision of the Federal Court where factor (f) (ii) is set out, but that does not affect the Court's conclusion as to this factor being easier for a veteran to satisfy because it contains no limitation as to the period of smoking.

Mrs Austin said her husband had an increased smoking habit after the voyage which included his operational service. Mr Cardwell gave evidence that he and the other ordinary seamen increased their smoking during the operational service at Vung Tau and maintained that increase. He said in his statement:
My recollections of this time was that those of us who smoked, smoked quite heavily during and after this period.

That evidence and the evidence of Mrs Austin does raise a reasonable hypothesis which contains factor (f) (ii). It points to an increase in smoking related to operational service of at least 7,300 cigarettes between operational service and death.

Step 4 from Deledio requires that we consider s 120(1). It provides:
(i)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
There are a number of inconsistencies in the smoking histories given by Mrs Austin. There are gaps in her evidence due to the time her husband spent away at sea. The fact that this is a widow's claim, of necessity, means that the Tribunal could not hear the veteran's own account of the relevant circumstances. The process of asking a widow in the 1990s, or in the year 2001, how much her husband smoked in 1967 and 1968, prior to their marriage or even their engagement, is clearly an artificial and very fallible procedure. In this matter it is made more fallible by the fact that Mrs Austin only saw Mr Austin in that period on occasions when he came ashore on leave. Even after he left HMAS Yarra, she did not see him frequently, and even after their marriage in 1969 he was at sea for more time than he spent at home during his 20 year engagement with the Navy. We are conscious of the deficiencies in the evidence, but they do not mean that we can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Austin's death was war caused.

The decision under review will be set aside. In substitution we find that Mr Austin's death was a war-caused death and that Mrs Austin is entitled to widow's pension. The date of effect was agreed to be 10 June 1998.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member Dr P Fricker, Member Mr A Argent, Member
Signed:         Grace Carney
  Associate
Date/s of Hearing  18 September 2001
Date of Decision  18 September 2001
Counsel for the Applicant        Nil
Solicitor for the Applicant         Mr P Liefman
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Mr K Herman