CECIL GRETTON and REPATRIATION COMMISSION
[2009] AATA 908
•26 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 908
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3642
VETERANS' APPEALS DIVISION ) Re CECIL GRETTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date26 November 2009
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
..................[Sgd]................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – operational service with Royal Australian Navy – application of Statements of Principles – diagnosis and clinical onset of malignant neoplasm of the colorectum – commencement of smoking on eligible war service – temporal but no causal relationship of smoking to service – a reasonable hypothesis of relevant relationship to service not raised – satisfied beyond reasonable doubt that malignant neoplasm of the colorectum not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 6C, 7, 9, 14, 120, 120A
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Bramwell v Repatriation Commission (1998) 51 ALD 56Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Edwards, Federal Court, 3 September 1993, 612/1993REASONS FOR DECISION
26 November 2009 Mr R G Kenny, Senior Member BACKGROUND
1. Cecil Gretton served with the Royal Australian Navy (“the RAN”) from 30 June 1961 until 23 August 1968. On 27 February 2008, he lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (“the Act”), a claim for a disability pension for “adenocarcinoma of rectum” which he contended was related to his RAN service. On 19 May 2008, the respondent determined that the appropriate medical diagnosis in answer to the claim was malignant neoplasm of the colorectum. It also determined that the condition was not related to Mr Gretton’s RAN service. On 29 April 2009, the Veterans’ Review Board (“VRB”) affirmed the decision.
SERVICE, ISSUES AND LEGISLATION
2. Mr Gretton completed periods of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, from 28 February 1962 until 16 March 1962; from 15 April 1963 until 8 May 1963; and from 10 May 1963 until 25 May 1963. During those periods, Mr Gretton served on HMAS Melbourne (the Melbourne) as part of the Far East Strategic Reserve.
3. Under s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered. The standard of proof for determining diagnostic matters under the Act is provided for in s 120(4) thereof. This requires that such matters be determined to the decision-maker’s reasonable satisfaction.[1] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act which reads:
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.
[1] This means that matters are determined on the balance of probabilities: Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
4. The application of that provision is affected by the terms of s 120(3) and s 120A of the Act which require that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (“RMA”).
5. It is common ground between the parties, and I am satisfied, that the appropriate diagnosis which answers Mr Gretton’s claim is malignant neoplasm of the colorectum. The issue for determination is whether that condition arose out of, or was attributable to, any of Mr Gretton’s eligible war service.
6. Mr Jarro, for Mr Gretton, referred to an earlier Tribunal matter involving Mr Gretton in which the respondent conceded that Mr Gretton had a service-related smoking habit. He submitted that the concession should also operate in this matter. Mr Kelly, for the respondent, was not prepared to concede the smoking relationship. The circumstances surrounding the concession on the previous occasion are not before the Tribunal and I am satisfied that the previous concession does not bind the respondent in this matter.[2] Accordingly, the issue relating to smoking must be determined on the evidence before me.
[2] See Bramwell v Repatriation Commission (1998) 51 ALD 56.
CONTENTIONS
7. Mr Jarro submitted that Mr Gretton’s malignant neoplasm of the colorectum developed because of his smoking habit and that he commenced to smoke cigarettes on 6 March 1962, his 20th birthday, due to peer pressure and boredom. It was further contended that he increased his smoking levels to 40 cigarettes by the end of his operational service because of boredom and the stresses associated with that service and that he continued to smoke at that level in post-service years until he ceased the habit in 2002.
8. For the respondent, Mr Kelly submitted that there was no service-related factor which was responsible for the commencement of Mr Gretton’s smoking habit and that he took it up on his 20th birthday for reasons unassociated with his service.
EVIDENCE
Mr Gretton
9. Mr Gretton’s evidence in chief was contained in a statement dated July 2008. Before joining the RAN, he was employed as a truck driver for a shire council as part of a bridge-building gang. He was not a regular cigarette smoker then but may have smoked an occasional cigarette when given one by a fellow worker. He served initially at HMAS Cerberus and he did not smoke there. He was posted to the Melbourne on 12 February 1962. The Melbourne was in Hobart at that time. It travelled to Fremantle via Adelaide and left Fremantle for Singapore a few days before Mr Gretton’s 20th birthday.
10. On his 20th birthday, Mr Gretton was given cigarettes and alcohol by other sailors. He said that he smoked on that day because there was “nothing else to do”. He could not recall how many cigarettes he had on his birthday. At one stage in his evidence he said that he had “a few cigarettes and a beer that night”. On another, he said that he may have smoked about ten to 14 per day at the start but then increased his smoking after his birthday and continued to smoke thereafter because it was part of the RAN culture at sea and due to boredom. He was unable to say how long it took before he was smoking 40 cigarettes per day but described himself as a “heavy smoker” 12 months later. He said that, with two watches of four hours duration each day, he had a lot of spare time which was spent playing cards or other games during which he increased his smoking of cigarettes. He said that this was assisted by the ready availability of cigarettes and because they were inexpensive. In his statement, he wrote that smoking also eased the stress of operational service. After leaving the RAN, Mr Gretton worked in a food processing factory for about 30 years. He was not permitted to smoke in the factory but he smoked heavily after work and during work breaks. He ceased smoking in 2002.
11. In his statement, Mr Gretton referred to a comment in the medical examination form completed on his entry into the RAN. This was that he was noted to have “deep nicotine staining on both hands”. He accepted that his hands were stained but he attributed this, not to nicotine, but to the sap in timber and the creosote applied to it during his bridge-building work for the shire council.
12. Mr Gretton completed a statutory declaration on 23 February 2008. There, he again nominated the bridge timber as the source of the staining on his hands which was noted on enlistment. He also wrote that he was not addicted to cigarettes before enlistment but that he “may have had the odd one that the gang gave” to him.
13. A smoking questionnaire was completed by Mr Gretton on 16 February 2007. There, he wrote that he started to smoke cigarettes on 6 March 1962 at the level of 40 per day. He also wrote that he started to smoke regularly because of the stress of operational service.
14. In cross-examination, Mr Gretton said that his duties on the Melbourne involved maintaining machinery and watch-keeping. He said that there was no difference in the circumstances that prevailed on the Melbourne on his birthday to those that were present in the voyages from Hobart to Adelaide, from there to Fremantle or from Fremantle, bound for Singapore, until his birthday on 6 March 1962. This was his first birthday at sea. He said that, on his birthday, he purchased the cigarettes from the canteen. He said that he might have had one or two cigarettes before his 20th birthday but he was not sure of this. Mr Gretton was reminded that, in his evidence to the VRB, he said that he might have had a packet of his own cigarettes available on his birthday. He was unable to explain the varying versions relating to the source of his cigarettes; were they given to him by sailors; were they purchased from the canteen; or were they obtained from a packet he had in his possession? He again described boredom and long hours with nothing to do but play games such as cards.
Melbourne’s reports of proceedings
15. The Melbourne’s reports of proceeding for February and March 1962 were in evidence. These show that the Melbourne left Hobart on 14 February 1962 en route to Adelaide, where it arrived on 17 February 1962 and remained for several days. It then left Adelaide and arrived in Fremantle on 26 February 1962. On 28 February 1962, the vessel departed Fremantle, en route to Singapore, where it arrived on 8 March 1962.
VRB proceedings
16. In evidence was a transcript of proceedings at the VRB on 8 April 2008. Those proceedings relate to an earlier claim made by Mr Gretton. There he said that, when he was working with others in the engine room, “it seemed to be the thing that most people smoked”. He described that as “peer pressure”.
17. Reference is made in that transcript to his nicotine-stained hands being noted in his RAN entry examination record and to Mr Gretton’s explanation that it was related to the sap and creosote associated with the timber used in his bridge-building work.
18. As to pre RAN smoking, Mr Gretton said that he probably had the odd smoke before he joined. He also said that he probably had a packet in his bunk or somewhere in the mess before his birthday.
Dr David Spain
19. Dr Spain is a consultant emergency physician. He completed a report on 23 April 2007. There, he recorded Mr Gretton as having a smoking history of 40 cigarettes per day over 40 years until 2002.
PRINCIPLES OF CAUSATION
20. The Federal Court, in Repatriation Commission v Deledio,[3] set out a four-step procedure for determining issues of causation in relation to operational service. The first of these steps requires that there be material which points to an hypothesis connecting a claimed condition with service. I am satisfied that this requirement is met. This is that Mr Gretton commenced smoking on service due to boredom and peer pressure and continued to smoke until 2002 thereby contributing to the development of his malignant neoplasm of the colorectum.
[3] (1998) 83 FCR 82 at 97-98.
21. The second of the four Deledio steps requires identification of the relevant Statement of Principles as published by the RMA. For malignant neoplasm of the colorectum, this is Instrument No 1 of 2004.
Step 3: is the hypothesis reasonable?
22. The third Deledio step does not involve fact-finding but requires a consideration of the advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the Statement of Principles.
23. For malignant neoplasm of the colorectum, the relevant factor and associated definition in Instrument No 1 of 2004 read:
5(b)smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of malignant neoplasm of the colorectum, and
(i)smoking commenced at least 20 years before the clinical onset of malignant neoplasm of the colorectum, and
(ii)where smoking has ceased, the clinical onset has occurred within 30 years of cessation;
…
“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 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 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
24. Clause 4 of the Statement of Principles for malignant neoplasm of the colorectum requires that the factor in clause 5 must be related to eligible service. That reflects the requirements of s 9(1)(b) of the Act.
25. There have been cases where a smoking habit has been found to be service‑related when it developed through boredom and/or peer pressure. In Repatriation Commission v Tuite,[4] Davies J stated that “[e]ligible war service encompasses not only active service but all the incidents of service, such as life in camp”. His Honour continued:
... the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred ... If the circumstances of eligible war service provide 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.[5]
[4][5] Ibid at 611-612 and see per Burchett and Einfield JJ at 614.
26. Before referring to the evidence in this matter, I note that Mr Kelly conceded that the staining on Mr Gretton’s hands was unrelated to cigarette smoking and was associated with the timber-related activities that he undertook before enlistment in the RAN.
27. There are some inconsistencies in Mr Gretton’s evidence concerning his pre‑service smoking[6] but, generally, the material points to his being a virtual non‑smoker before joining the RAN and in the eight months of service before his posting to the Melbourne. Again, there are some inconsistencies in his evidence concerning the source of cigarettes he smoked on his birthday.[7] Mr Gretton’s evidence was that there was nothing about his circumstances on the Melbourne on 6 March 1962, when he was on operational service, which were any different from those that had prevailed during the segments of the voyage from Hobart to Fremantle, when he was not on operational service. Similarly, he described no difference between the first five days of operational service after leaving Fremantle and before his birthday. The material before me points to the peer pressure and boredom, as described by Mr Gretton, being present throughout the parts of the voyage to Fremantle and thereafter until 6 March 1962. Despite the evidence pointing to the existence of that peer pressure and boredom during that period, it also points to Mr Gretton not yielding to the temptation to smoke during that time. In his statements, he referred to the stress of operational service. However, he made no reference to this as a causal influence in his oral evidence.
[6] See paras 9, 13, 14 and 18 above.
[7] See paras 10, 14 and 18 above.
28. The evidence points to one significant factor on 6 March 1962 which differentiates it from Mr Gretton’s earlier service. It was his 20th birthday. Taken as a whole, the material before me points to the fact that it was his birthday which was the precipitating factor which caused him to commence smoking. It also points to life on the Melbourne and interaction with the crew of the Melbourne as merely the setting in which that was done. While that points to a temporal connection of the commencement of smoking to his eligible service, it does not point to the required causal association with that service.[8] The hypothesis that the commencement of Mr Gretton’s smoking habit was attributable to service is not reasonable.
[8] Repatriation Commission v Tuite (1993) 29 ALD 609 at 614.
29. Mr Gretton’s evidence was that he continued to smoke after his 20th birthday. There is no clear evidence of the specific level of Mr Gretton’s smoking on his birthday. He nominated 40 cigarettes in his questionnaire and the unlikelihood of that on the first day of smoking was put to him. In his evidence, he variously described “a few cigarettes and a beer that night” and perhaps “10 to 14 cigarettes”. He was unable to say how long it took for his smoking to reach 40 per day but said he was heavy smoker 12 months after he started. This points to his being a heavy smoker by 6 March 1963, which predates his second and third periods of operational service. Accordingly, the only operational service pointed to by the material before me that has potential relevance to the continuation of Mr Gretton’s smoking after he commenced on his birthday is the period of 11 days from 6 March 1962 until 16 March 1962.
30. The definition of “pack years of cigarettes or the equivalent thereof in other tobacco products” is set out above. It is expressed in quantitative terms. Mr Gretton’s vague evidence concerning the quantity of his smoking when he commenced points to his being a relatively light smoker by the end of his first period of operational service, i.e. 11 days later. This points to a subsequent increase such that he was a heavy smoker by 6 March 1963 with such increase being unassociated with operational service. It follows that any hypothesis that Mr Gretton’s increase in smoking after he had commenced on 6 March 1962 was service-related is not consistent with the template in the Statement of Principles and is not reasonable.
Step 4: is malignant neoplasm of the colorectum war-caused?
31. As no reasonable hypothesis of a relationship between Mr Gretton’s smoking and eligible service is raised, I am satisfied beyond reasonable doubt that his malignant neoplasm of the colorectum is not war-caused.
DECISION
32. The Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
Signed: ..........................[Sgd]..............................................
Mátyás Kochárdy, Research AssociateDate of Hearing 5 November 2009
Date of Decision 26 November 2009
Counsel for the Applicant Mr Nathan Jarro
Solicitor for the Applicant John Cockburn Legal and Consulting
Representative for the Respondent Mr Jeff Kelly
(1993) 29 ALD 609 at 611. See also Repatriation Commission v Edwards, Federal Court,
3 September 1993, 612/1993.
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