Burrows and Repatriation Commission
[2001] AATA 769
•7 September 2001
DECISION AND REASONS FOR DECISION [2001] AATA 769
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/536
VETERANS' APPEALS DIVISION )
Re TREVOR ALLAN BURROWS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member
Date7 September 2001
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution therefor determines that Trevor Allan Burrows' conditions of aortic atherosclerotic disease and cerebral ischaemia are defence service caused.
(Sgd) I R Way
Member
CATCHWORDS
VETERANS' AFFAIRS – whether service related smoking habit
Veterans' Entitlements Act 1986 – ss 70(1), 70(5)(a), 120B
Hawkins v Repatriation Commission (1993) 30 ALD 59
Repatriation Commission v Tuite (1993) 17 AAR 158
Repatriation Commission v Bendy (1989) 18 ALD 144
Repatriation Commission v Smith (1987) 7 AAR 17
REASONS FOR DECISION
7 September 2001 Mr I R Way, Member
This is an application by Trevor Allan Burrows for review of a decision of the Veterans' Review Board dated 31 May 2000, which affirmed a decision of the Repatriation Commission dated 10 December 1998, that refused the Applicant's claim for aortic atherosclerotic disease and cerebral ischaemia.
The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and a statement by the Applicant dated 21 January 2001 (Exhibit A1). The Applicant gave oral evidence.
The Applicant was born on 11 August 1952 and served in the Australian Army from 19 September 1973 until 18 September 1979, this constituting defence service as defined in the Veterans' Entitlements Act 1986 (the Act).
There is no dispute between the parties and the Tribunal finds accordingly that the Applicant suffered aortic atherosclerotic disease with date of onset in June 1994 and in September 1998 suffered a cerebro vascular accident diagnosed as cerebral ischaemia.
The Applicant contends that both of the above conditions are defence caused within the meaning of s 70 of the Act because of a service related smoking habit.
ISSUES AND LEGISLATIVE FRAMEWORKThe principal issue to be determined in this matter is whether the Applicant's smoking habit is causally related to his defence service. The Act relevantly provides as follows:
"70 Eligibility for pension under this Part
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
120BReasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994;
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1:Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection5Q(1A).
(2)If the Repatriation Medical authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."
The standard of proof in this matter is set out in sub-section 120(4) of the Act and requires the Tribunal to determine this matter to its reasonable satisfaction, that is on the balance of probabilities (see Repatriation v Smith (1987) 7 AAR 17).
The Applicant's claim was lodged on 1 June 1994 and the Tribunal is therefore to determine this matter pursuant to s 120B of the Act.
Relevant Statements of Principles have been issued and these are as follows:
Aortic atherosclerotic disease – Instrument No 69 of 1998
Cerebrovascular accident – Instrument No 24 of 1998
It is the Applicant's contention that he satisfies factor 1(a) of Instrument No 69 of 1998, that is:
"1(a) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least six years before the clinical onset of non-aneurysmal aortic atherosclerotic disease"
and that he satisfies factor 5(k)(i) of Instrument No. 24 of 1998, namely:
"(k)(i) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 10 years of cessation."
THE APPLICANT'S EVIDENCE
The Applicant told the Tribunal that he left school when he was sixteen years old, was an apprentice spray painter for three years, had been a "brickies' labourer" and also a surveyor's chainman working in remote areas before joining the Army when he turned 21. He said he did not smoke or drink during this period before he joined the Army; he also said he had tried smoking "as a kid" and that his parents smoked and had warned him of the health hazards of smoking. He told the Tribunal he had two brothers and a sister and that only his younger brother smoked. He also said that he played cricket and football and was an active team member in those sports. In answer to questions in cross examination, the Applicant told the Tribunal that between the ages of sixteen and twenty one he did not associate with anyone who smoked and that he was not offered cigarettes during this period.
In his written statement the Applicant said:
"4.I did not smoke during my basic training however commenced smoking while at the school of military engineering. When I was transferred from basic training to the school I was put in the holding troop waiting for my course to start. I remained in this holding troop for a period of approximately three months.
5.During this time my duties involved doing ground maintenance and ground duties as well as other miscellaneous jobs around the barracks.
6.It was at this time that we had long days with very little to do. I found this situation to be quite boring.
7.It was during these times that many around me would smoke. On numerous occasions colleagues would offer me cigarettes. Initially I declined all offers of cigarettes.
8.When I refused cigarettes I would often be asked by fellow servicemen what my problem was and encouraged to smoke with the usual statement being 'come on just have one it won't hurt ya'. Eventually after much pressure I began accepting offers of cigarettes just to try it out.
9.At this time I was probably smoking approximately one to two cigarettes per week.
10.The nature of my service at that time encouraged my smoking. Breaks were provided for smokers however if you did not smoke during that time you were given extra duties to do. This often included a rubbish detail which involved you going around picking up rubbish including the cigarette butts dropped by your fellow servicemen.
11.Gradually throughout this time my cigarette smoking increased to a point where approximately 12 months later I was buying my own cigarettes and smoking approximately a pack of cigarettes per day.
12.I remained at approximately this level of smoking until I had my stroke about two years ago.
13.I tried to give up a few times during my smoking life however I found this to be very difficult due to the addictive nature of cigarettes.
14.I believe that stressful incidents during my service served to ingrain this addiction.
15.While working with explosives I would often find myself in dangerous situations where I was unsure as to what young servicemen who were working beside me would do. I found that at this time a cigarette would calm my nerves. Therefore I smoked more at these times."
In answer to questions from the Tribunal the Applicant said that early in 1974 he was probably smoking one or two cigarettes a day but by the end of 1974 he had increased this to five per day. He said that he was deployed to Darwin in late 1974 and early 1975 as a sapper in a field engineering unit given the task of cleaning up after Cyclone Tracey; and that it was during this very stressful period that he became addicted to cigarettes, his consumption being one packet per day from early 1975 until he stopped smoking when he had a stroke in September 1998.
SUBMISSIONSIt was submitted for the Applicant that prior to turning twenty-one he could have chosen to smoke but he did not do so. It was not until he joined the Army that factors influencing him to smoke manifested themselves. It was submitted that there were many such factors, not just one, but these all came together subtly and gradually in influencing him to start and continue smoking. It was submitted that the Applicant was a team man subjected to a new team culture in the Army where the majority of young servicemen smoked and where he was encouraged by his peers to smoke; where undertaking boring mundane tasks were conducive to the pressure to smoke; where the special circumstances of his service in Darwin after Cyclone Tracey had a stressful effect on the applicant; and where the Applicant's work with explosives added further stress.
It was contended for the Applicant that common sense would lead to a finding that the Applicant's defence service had an influential effect on the Applicant becoming addicted to cigarettes and that the Tribunal would be satisfied that his smoking habit was caused by his defence service. In consideration of this matter, counsel for the Applicant referred the Tribunal to Repatriation Commission v Tuite (1993) 17 AAR 158.
It was submitted for the Respondent that the test to be applied in this matter pursuant to s 70(5)(a) of the Act is whether the Applicant's smoking habit arose out of or was attributable to his defence service. In regard to applying this test, the Tribunal was referred to Re Hawkins v Repatriation Commission (1993) 30 ALD 59 and Repatriation Commission v Bendy (1989) 18 ALD 144. Counsel for the Respondent submitted that the circumstances in Re Tuite were markedly different to the circumstances in the matter before the Tribunal. It was submitted that the Applicant's defence service merely provided the setting in which the Applicant commenced smoking, that the conditions of service were not such as to provide an operative cause and that the strength of any connection of this service was not other than de-minimis.
CONSIDERATION
As already determined in paragraph 4 the Tribunal finds that the Applicant suffered aortic atherosclerotic disease with date of onset in June 1994 and in September 1998 suffered a cerebro vascular accident diagnosed as cerebral ischaemia.
In this case the credit of the Applicant has not been called into question and the Tribunal is of the view that the Applicant gave his evidence frankly and truthfully. The Tribunal is satisfied on the evidence of the Applicant that he had engaged in various working and sporting pursuits for many years prior to joining the Army and that apart from an experiment at a very early age had not smoked prior to joining the Army at age 21.
The Tribunal is also satisfied that the Applicant was addicted to cigarette smoking at the time he completed duties in the Army cleanup post Cyclone Tracey, that this addiction was satisfied by the Applicant smoking a packet of cigarettes a day thereafter and that this level of smoking continued until September 1998 when the Applicant suffered a stroke.
In the light of the above findings the Tribunal is satisfied that the Applicant satisfies factor 1(a) of Instrument No. 69 of 1998 that is:
"1(a) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least six years before the clinical onset of non-aneurysmal aortic atherosclerotic disease"
and that he satisfies factor (k)(I) of Instrument No. 24 of 1998, namely:
"(k)(i) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 10 years of cessation".
The question then is whether the Applicant's smoking habit arose out of or was attributable to his defence service.
The Tribunal has considered the authorities to which it was referred, particularly with respect to whether or not the Applicant's smoking habit arose out of or was attributable to his defence service.
While the factual basis of each case varies (including the case before the Tribunal), his Honour Justice Davies has cogently and consistently set out the approach which should be taken in determining matters such as this.
In Re Hawkins, Davies J stated:
"A disease will be attributable to eligible service if the service contributed in a material way to its development. When a disease is alleged to be due to camp life …, the question would usually be whether life in camp … was a contributing cause and not merely the setting in which the event occurred.
…
Issues of causation must be approached in a factual way in the light of common sense and human experience;
…
In causation, the issue is whether one event has equivalent relationship with another. It is misleading to speak of the test as objective, for it may well be the serviceman's personal response to an event which provides the causative element. The question is simply one of fact as to whether one event contributed to another." (pages 62-63)
And further,
"As smoking is addictive, the circumstances in which the habit developed were important."
In Re Bendy, Davies J, in addressing the question of "materiality" and "contributing cause" said:
"In each case, the reference to materiality serve to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term 'material' is here used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely, 'of substantial import or much consequence' but rather in its legal sense of 'pertinent' or 'likely to influence'."
In Re Tuite Davies J said:
"If an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service 'must be a cause as distinct from being part of the circumstances in or on which the cause operates'."
Davies J went on to say:
"Of course, causation is primarily an issue of fact …
If the circumstances of eligible war service provides an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision maker, is whether the eligible war service contributed causily to the injury or disease."
With respect, the Tribunal adopts the approach as set out above.
After consideration of all the material before it and the submissions of both parties, the Tribunal is satisfied that the circumstances of the Applicant's defence service was such as to materially contribute to his smoking habit. In arriving that this conclusion the Tribunal is mindful that the Applicant was a non-smoker on enlistment at age 21, that he left the Army six years later with a well established smoking habit, and that during his service he was subjected to a number of service related circumstances and influences which led to his smoking addiction. With respect to these circumstances and influences, the Tribunal accepts the submissions for the Applicant as set out in paragraph 13.
It follows that the Tribunal finds that the Applicant meets the necessary criteria of the relevant SoPs and that therefore his condition of aortic atherosclerotic disease and cerebral ischaemia are defence service caused.
The Tribunal sets aside the decision under review and in substitution therefor determines that Trevor Allan Burrows conditions of Aortic atherosclerotic disease and cerebral ischaemia are defence service caused.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Robert Hayes
Associate
Date of Hearing 26 July 2001
Date of Decision 7 September 2001
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan & Luton
Advocate for the Respondent Mr J Kelly, Departmental Advocate
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