Beverley Cleary and Repatriation Commission

[2015] AATA 352

[2015] AATA 352 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3991
Re	Beverley Cleary
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	21 May 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

VETERANS’ AFFAIRS – application for widow’s pension – claim that veteran’s death war-caused – contention that veteran’s smoking habit increased after operational service in Vietnam – material before Tribunal does not raise reasonable hypothesis connecting veteran’s death with operational service – decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 9; 120

REASONS FOR DECISION

Senior Member Bernard J McCabe

1. Mrs Beverley Cleary has claimed the widow’s pension under the Veterans’ Entitlements Act 1986 (“the Act”). She says her late husband died as a consequence of a smoking
   habit that took hold or changed during his operational service in Vietnam from
   17 December 1965 to 22 July 1966. The Repatriation Commission says Mrs Cleary does not qualify for the pension because the evidence does not support a reasonable hypothesis linking the kind of death the veteran suffered with the circumstance of his service.

2. I am not satisfied the death of Mrs Cleary’s husband was war-caused. It follows I must affirm the decision under review. I explain my reasons below.

   The kind of death

3. Jeremiah Cleary had been married to Mrs Cleary, the applicant, since late 1960. He was already a member of the Royal Australian Air Force (RAAF) when they met outside a dance in Adelaide earlier that year. He served in the military until 26 February 1980.
   Mr Cleary died on 26 June 2006. The death certificate recorded the causes of death as
   (a) Carcinomatosis and (b) Carcinoma of the bladder. The parties accept the veteran’s kind of death – a technical expression used in the legislation – was bladder cancer, or malignant neoplasm of the bladder.

   Was the applicant’s bladder cancer causally connected to this service?

4. In order to establish whether the veteran’s death was war-caused within the meaning
   of s 9 of the Act, I must follow a process set out in s 120 of the Act. The first step in that process requires me to consider whether the material before me points to an hypothesis connecting the veteran’s death with the circumstances of his service.

5. The applicant hypothesised that the veteran’s death was linked to his operational service because, as a result of stressful operational service, Mr Cleary resumed or increased his smoking habit. That habit caused his carcinoma of the bladder, which ultimately caused his death.

6. The applicant contends the material satisfies the Statement of Principles concerning Malignant Neoplasm of the Bladder, in that the veteran was:

   smoking 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.

7. The applicant’s material includes two statements (a letter to the Veterans’ Review Board reproduced in exhibit one at pp 73-74 and a statement in these proceedings marked as exhibit two) and oral evidence provided by the applicant. That evidence confirms
   Mr Cleary was a smoker when he met his future wife in 1960. In her oral evidence, the applicant said:

   ·Her late husband’s parents told her Mr Cleary had not smoked before he joined the RAAF in 1960;

   ·Mr Cleary only smoked in front of the applicant on one occasion in late 1960, and she told him she did not approve of smoking. (In her letter to the Veterans’ Review Board reproduced in exhibit one at p 73, the applicant suggested her late husband ceased smoking after she became pregnant in 1961. I do not make anything of the discrepancy; the events in question all occurred a long time ago.) She said she never saw her husband smoke after telling him she did not approve of his smoking;

   ·While Mr Cleary did not smoke in front of the applicant, she was aware he continued to smoke because she could smell the cigarettes on his clothes, and perhaps on his breath. She said she assumed he smoked at work but did not assume prior to his departure for Vietnam in 1965 that he was a heavy smoker. She confirmed she was not aware of him actually giving up cigarettes at any point between 1960 and 1965, and she was unable to say for sure how much he was smoking, or in what circumstances.

8. This evidence does not establish how much Mr Cleary was smoking before he left for operational service in Vietnam. The evidence provided by Mrs Cleary is consistent with the information provided by the veteran in a smoking questionnaire completed in 2006 (exhibit one at pp 25-27). That questionnaire reports the veteran began smoking “soon after joining service 1960”. At that time, he was consuming 10-15 cigarettes per day and the occasional cigar. He put that down to “stress” and “peer pressure”. When asked whether his pattern of consumption changed over time, he reported there was an increase in consumption evident from 1963. Between 1963 and the 1980’s, he reported smoking 20-40 cigarettes per day together with the occasional cigar. The reason given was “stress”, without elaboration. He reported he permanently ceased smoking in the

   
   

   “mid 80’s”. There is no indication his pattern of consumption changed around the time of (or in connection with) his service in Vietnam from December 1965 to July 1966.

9. The applicant said Mr Cleary wrote to her while he was in Vietnam and referred to stressful experiences. (He burned the letters when he returned home.) She recollected (exhibit one at p 73) a letter that included a photograph of her husband in uniform with a cigarette in his hand. She recalled her daughter – who was then about five years old – exclaiming: “Look mummy, daddy is smoking again”. When Mr Cleary returned home, the applicant challenged him about a bag containing “hundreds of packets” of cigarettes that he brought with him. Mrs Cleary said in her oral evidence that she was upset when she discovered the bag, but Mr Cleary said he proposed sharing the cigarettes with his father and friends. The applicant agreed she never saw him smoke the cigarettes and did not know for sure what he did with them – although she said she could smell cigarettes on his breath and assumed he smoked them himself.

10. Mrs Cleary was unsure how much her husband was smoking after he returned from Vietnam. She said (in exhibit one at p 73 and in her oral evidence) that Mr Cleary refused to discuss the issue whenever she raised it: “Leave it”, he would respond. She assumed he continued to smoke because she could smell the cigarettes on his clothes and breath.

11. The evidence provided by Mrs Cleary does not point to the applicant changing his pattern of consumption over time. He did not smoke in her presence, but she knew he continued to smoke and had no reason to believe he ever stopped or moderated his habit before he went to Vietnam. She suspected he increased his smoking after he returned, but she was not aware of any evidence that clearly pointed to that conclusion. It follows that her claim can only succeed if there is evidence from someone else pointing to an increase in consumption following Mr Cleary’s return from Vietnam. (It is not necessarily sufficient to establish the existence of a temporal connection between the veteran’s service and a change in consumption: I need be satisfied there was a causal connection with service. Mr Crowe, who appeared for the Commission, suggested the Commission was inclined to accept there was a causal connection if there was also a temporal one. I am not so sure, but the first step is to identify whether the other evidence points to a temporal connection.)

    Mr Daniel Dodd served with Mr Cleary in 1960-1961, around the time Mr Cleary married the applicant. Mr Dodd provided a statement (reproduced in exhibit 5) and gave evidence at the hearing. Mr Dodd said he and Mr Cleary socialised together during the period they served together. Mr Dodd said Mr Cleary did not smoke at that time.

    
    

    Mr Dodd said in his oral evidence that he saw Mr Cleary infrequently after their service together in Ballarat. He said he did not recall Mr Cleary smoking on the few occasions they met up before 1965. Mr Dodd said he recalled seeing Mr Cleary after he returned from Vietnam. Mr Dodd said he did not recall the date or dates on which he saw

    
    

    Mr Cleary but recalled noting Mr Cleary was smoking. (I note his written statement suggested he was “taken aback” at Mr Cleary’s consumption of cigarettes following service in Vietnam, but his oral evidence was less emphatic.) I am satisfied the totality of the evidence provided by Mr Dodd does not point to a temporal connection between

    
    

    Mr Cleary’s service in Vietnam and his consumption of tobacco.

12. Mr Russell Walls served with Mr Cleary in Richmond between 1961 and 1965. Mr Walls provided a statement (reproduced in exhibit 4) and gave evidence at the hearing.

    
    

    Mr Walls said he did not recall Mr Cleary smoking prior to his posting to Vietnam.

    
    

    He said he was sure he would have noticed as he was trying to give up smoking himself at the time, and smokers could usually recognise one another. Mr Walls subsequently served with Mr Cleary in Darwin and Canberra, long after Mr Cleary returned from Vietnam. They worked in different parts of the base and had much less frequent contact. Mr Walls did have limited recollection of Mr Cleary smoking while they served in Darwin.

13. The material provided by Mr Walls does not point to a change in consumption that is temporally connected to Mr Cleary’s service in Vietnam. At most, his evidence points to Mr Cleary smoking at some point after his service in Vietnam – and perhaps not even then.

14. The applicant also called Mr Gerald Carson to give evidence, both in the form of a statement (reproduced at exhibit 3) as well as at the hearing. Mr Carson is a retired squadron leader in the RAAF. He said he knew Mr Cleary well. They served in the same unit at Richmond before Mr Cleary was posted to Vietnam, and they served together at Richmond for about nine months upon Mr Cleary’s return. Mr Carson said he and the late veteran saw each other regularly at work but also socialised together extensively.

    
    

    Mr Carson insisted he never saw Mr Cleary smoke – either before or after Mr Cleary’s service in Vietnam. While Mr Carson conceded Mr Cleary might have smoked cigarettes in secret, he thought that was unlikely.

15. Mr Carson’s evidence does not point to a change in the pattern of smoking around the time of Mr Cleary’s service in Vietnam.

16. The applicant also tendered a statement by Mr Russell Arnold, a retired squadron leader who had been Mr Cleary’s supervisor in Darwin between 1969 and 1971. Mr Arnold was unable to provide oral evidence because of deteriorating health. That was unfortunate as his statement positively asserts Mr Cleary did not smoke before he went to Vietnam but says he became addicted to tobacco products as a result of traumatic experiences during his operational service. It is unclear how Mr Arnold knew Mr Cleary was not a smoker before he went to Vietnam, or the basis upon which he concluded (a) there was a change in consumption and (b) the change in consumption was connected to service in Vietnam.

17. Mr Arnold’s evidence ultimately provides material pointing to Mr Cleary smoking heavily in 1969. But that is not, of itself, evidence pointing to a connection between

    
    

    Mr Cleary’s service in Vietnam and an increase in tobacco consumption, notwithstanding the expression of opinion to that effect. It is possible Mr Arnold might have provided that material if he were available for questioning, but sadly he was not.

18. I am not satisfied the whole of the material before me points to a reasonable hypothesis connecting the circumstances of Mr Cleary’s operational service in Vietnam with the kind of death he later suffered. I accept it is possible there is a connection: that possibility is certainly open, but that is not enough to satisfy the first step in the process required under s 120 of the Act.

    CONCLUSION

19. The decision under review is affirmed.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 21 May 2015

Date of hearing	27 April 2015
Counsel for the Applicant	Mr A Harding
Solicitors for the Applicant	Haney Lawyers
Advocate for the Respondent	Mr A Crowe