Clarke and Repatriation Commission (Veterans' entitlements)
[2018] AATA 2246
•13 July 2018
Clarke and Repatriation Commission (Veterans' entitlements) [2018] AATA 2246 (13 July 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/3094
Re:Heather Clarke
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:13 July 2018
Place:Brisbane
The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ ENTITLEMENTS – war widow pension – service in Malaya and Thailand - Deledio test – Statement of Principles No. 37 of 2013 – where veteran died of malignant neoplasm of the colorectum – whether the veteran’s smoking habit increased during his operational service – whether his increase in smoking habit was connected to his rendering of operational service.
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Bassett and Repatriation Commission [2002] AATA 531
Collins v Repatriation Commission (2009) 177 FCR 280
Creaney and Repatriation Commission [2005] AATA 177
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunn v Rehabilitation Commission [2006] FCA 1703
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission (2005) 85 ALD 1
Kattenberg v Repatriation Commission [2002] FCA 412
King v Repatriation Commission [2011] FCA 1436
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2005) 222 CLR 115SECONDARY MATERIALS
Statement of Principles concerning malignant neoplasm of the colorectum No. 37 of 2013
REASONS FOR DECISION
Deputy President J Sosso
13 July 2018
INTRODUCTION
This is an application brought by Mrs Heather Clarke (the Applicant), the widow of Mr Arthur Edward Clarke (the veteran), who is seeking a war widow’s pension under the Veterans’ Entitlements Act 1988 (the Act).
The veteran passed away in 2015 aged 80 years, and the stated cause of death in his Death Certificate was metastatic colon cancer – Exhibit 1 T5 p. 20.
Attached to the Applicant’s claim for a widow’s pension was a document headed “Record of evidence” in which she stated her belief as to the ultimate cause of the veteran contracting colon cancer – Exhibit 1 T7 p. 37:
“(I) believe that my husband Arthur Edward Clarke started smoking regularly when he joined the RAAF. I believe that this habit contributed to the conditions that caused his death. Therefore I believe that his death was related to his war service.”
The veteran served in the Royal Australian Air Force (RAAF) from 1952 until 1967. He was only 16 years of age when he enlisted and after completing his apprenticeship training at RAAF Wagga was mustered as an electrical fitter from 10 December 1954. Subsequently, the veteran was posted to RAAF Amberley, RAAF Edinburgh and RAAF Williamtown – Exhibit 5.
Both the Applicant and the veteran were from Brisbane and their respective families lived in Brisbane.
The Applicant first met the veteran in 1956 and subsequently formed a long-distance relationship when the veteran was posted interstate. The Applicant and veteran only met thereafter when he returned to Brisbane during periods of leave – Exhibit 2 paras 1, 5.
The Applicant’s accounts of the veteran’s smoking habits prior to their marriage are not entirely consistent.
On the one hand, the Applicant recalls that when she first met the veteran he smoked casually at social occasions, usually smoking Rothmans cigarettes – Exhibit 2 para 4. Prior to being married the Applicant recalled that the veteran was “smoking probably a few cigarettes each day – maybe one packet per week” – Exhibit 2 para 9.
However, when questioned by the Veterans’ Review Board on 8 February 2017 the Applicant gave a somewhat different account. The Applicant recalled – Exhibit 3 p. 19:
“MRS CLARKE: Before, before Malaya he smoked, yes. But that was before we were married, when I was sort of going out with him. He smoked when we were out. He certainly smoked when, when it was, you went to the movies, of course, you couldn’t smoke. But after that, yes, he’d smoked almost, you know, what’d you call it? What’s the word? You know, not, not you know finish one, you’d light up the other one next. But, like, it was smoking, it was…
MR CARLIN: Chain smoking
MRS CLARKE: Not a, chain smoker when we were out. But he was always smoking. Do you understand what I mean?”
The Applicant also gave the following recollection about the veteran’s pre-Malaya smoking habit – Exhibit 3 p. 12:
“Well, he was definitely smoking. But I couldn’t tell you how many he would be having down at, like Edinburgh in Adelaide and South Australia. But I know that when we went out he’d always, you know, smoked, and he’d like, walk outside and light up a smoke and things like that.”
The Applicant’s statement in the Smoking Questionnaire (outlined below) that the veteran was smoking 20 cigarettes a day in the period 1952 – 1967 (Exhibit 1 T7 p. 34) is consistent with the information she provided to the Board.
The Transcript of the proceedings of the Board also disclosed some other matters.
The Applicant was somewhat confused and was unable to give a date as to when she first met the veteran. She gave at various times a time of 1950, 1952 and 1956 – Exhibit 3 pp. 9 – 11.
The Applicant said that “one of my sons, he knows all the dates and everything…So if I can’t answer can I, can I get the questions answered by Peter? I will have to ring him…if there was something that I could not definitely answer” - Exhibit 3 p. 8.
It also became clear during the Tribunal hearing that the Applicant was having great difficulty answering questions.
In an RAAF Medical Report dated 3 March 1958, the veteran was stated to have a smoking habit – Exhibit 4.
The Applicant and the veteran married in 1960 – Exhibit 1 T6 p. 25. At this time the veteran was posted to RAAF Williamtown and he and the Applicant lived at Stockton – Exhibit 2 paras 8, 9. From December 1960 the veteran was posted to Malaya and was accompanied there by the Applicant and their baby son.
For the purposes of the Act, the veteran had three periods of operational service (Exhibit 1 T4 p. 18):
(a)Butterworth (Malaya) from 5 December 1960 to 28 August 1962;
(b)Ubon (Thailand) from 29 August 1962 to 23 October 1962; and
(c)Butterworth (Malaya) from 24 October 1962 to 24 March 1963.
The veteran’s operational service amounts to 840 days, or 2 years, 3 months and 20 days.
It should be noted that the Applicant stated that when she arrived in Malaya the Emergency was still afoot and that the veteran received a briefing about security matters when he reported for duty at Butterworth – Exhibit 2 para 14. While the Emergency was officially declared over on 31 July 1960, Australian servicemen continued to assist the Malaysian Government in any required counter-terrorism operations for a time thereafter – The Oxford Companion to Australian Military History (1995) p. 385. Accordingly, even though the Emergency had officially ended, there were ongoing security concerns that required the presence of RAAF personnel.
The Applicant stated that she and her husband lived in RAAF provided accommodation on Penang Island. The RAAF base at Butterworth was on the mainland, and RAAF personnel had to travel to the base each day by means of a ferry – Exhibit 2 para 11.
Dr Albert Palazzo prepared, on behalf of the Applicant, a very helpful and comprehensive account of life for RAAF personnel and their families at Penang and Butterworth during this time period – Exhibit 6. The report is consistent with the Applicant’s account which is set out below.
The Applicant described the life she and her family had in Malaya, and made the following observations – Exhibit 2 paras 12, 16, 17, 18:
“But there were also some issues concerning security and the need to lock your doors. She told me that you needed to be careful whom you spoke to and what you said to the local people. We were well aware of the Communist insurgents. Robberies were common, particularly on pay-days. The locals were well aware of the Thursday the Aussies were paid…
Soon after we arrived in Penang, Arthur informed me that we were always on 24-hour alert and we were required to have a suitcase packed at all times so that we could be evacuated immediately without delay in the event of a terrorist incident. This knowledge caused pressure on each of us as the constant threat of danger was very concerning…
Arthur constantly worried about our welfare and safety, especially on those occasions when he was not at home and able to protect us…Much of the stress came from not knowing what might happen at any time and never feeling entirely safe. It made matters worse that I was confined mostly to home because of my fulltime care of two very young children.
Arthur mentioned to me on a number of occasions his concerns for our safety when he was away and that he felt a profound guilt that he was the cause for his family being in peril’s way. As was his nature, he never said much, but I could tell he was deeply worried. As I indicated earlier, Arthur tended to internalise his emotions and worries and kept things to himself. Even now I can envisage Arthur smoking in the yard by himself, clearly worrying and ruminating about things that he preferred not to speak about.”
The Applicant also made the following observations of the veteran’s smoking habits whilst in Malaya – Exhibit 2 paras 21 - 24:
“…Arthur relayed that they were actually encouraged to smoke by peers as a way to battle the stress.
I noticed that Arthur was smoking far more heavily during our time on Penang Island which I put down to the stress of his regular separations from us, coupled with the guilt he had for moving his family to such a dangerous situation. The cheap cigarettes and the regular social gatherings were a crucial vent for men and families to release the pressure of their situation and gave him the opportunity to do so, but I have no doubt that Arthur’s increased smoking was entirely due to the stress that he felt as a consequence of being separated from his family and the risk that we all lived under throughout this time…
Arthur’s cigarette consumption increased suddenly and dramatically to at least two packets a day. I recall that he was smoking unfiltered Camels and Rothmans brands. These were packets containing 20 cigarettes.
Arthur maintained this higher level of smoking consumption throughout the whole of our time in Malaya. When we returned to Australia in March 1963, Arthur maintained this high level of cigarette consumption – that is, at least two packets a day. This is to say the addiction had taken a strong hold on him.”
When the Applicant claimed the war window’s pension she completed a Smoking Questionnaire - Exhibit 1 T7 pp. 33 - 34. In that document the Applicant noted that the veteran had commenced smoking on a regular basis in 1952 and was smoking 20 cigarettes each day. The reason for this was stated as follows:
“To be one of the boys – Helped relieve the stress of service”.
Later in the Questionnaire the Applicant estimated that the veteran smoked 20 cigarettes a day from 1952 to 1967 and gave as the reason: “Everyone else was smoking”. From 1967 to 2014 (when the veteran ceased smoking), the Applicant estimated that the veteran smoked 10 cigarettes a day, and the reason given for the reduction in the amount smoked was “Health concerns”.
On 22 March 2016 the Repatriation Commission declined the Applicant’s claim for a war widow’s pension -Exhibit 1 T8 pp. 38 – 43. On 9 August, 2016 the Applicant applied for a review of this determination – Exhibit 1 T9 pp. 44 – 45. The Veterans’ Review Board, on 8 February 2017 affirmed the decision of the Repatriation Commission – Exhibit 1 T12 pp. 50 – 55.
The Board provided the following reasons for affirming the Repatriation Commission’s decision – p. 55:
“18. The Board considered the applicant’s statement received 2 February 2016. In that statement the applicant says that the time she and the veteran spent in Malaya involved ‘the negative impacts of stress and fear…the ever-present threat…’ The applicant did not elaborate on the reason for this feeling of stress. By telephone, the applicant referred to the cheap cost and ready availability of cigarettes and the ubiquity of casual smoking on social occasions. The applicant made reference to no particular stress involved in their time in Malaya. The applicant spoke of cigarette usage linked to social occasions and gave no indication of any particular service stress that might account for the increase in the veteran’s smoking habit. The evidence indicates that the veteran had an established and heavy smoking habit before his posting to Malaya and that his smoking increased there due to the availability of cheap cigarettes and the prevailing social mores involving heavy cigarette consumption. The Board’s view is that the veteran’s increase in smoking was coincidental with but not caused by his operational service in Malaya and Thailand.”
Subsequently, the Applicant signed a letter dated 16 August 2016 – Exhibit 1 T10 pp. 46 - 48. The stated purpose of the letter was: “to convey the true nature of the deep psychological impact that Arthur’s operational service with the RAAF had on him and the direct implication of existing in that environment” – p. 46.
The letter is expressed in language and contains concepts and arguments that, from my listening to the Applicant, she would be incapable, at this stage of her life, of expressing. During the Tribunal hearing the Applicant was asked by Mr Dube about this letter and she testified that she could not recall it. She went to say that her son Peter was vitally interested in the matter, and the contents of the letter sounded “like Peter’s words”.
The Applicant also testified the handwriting on her Widow’s Pension Claim Form was not hers.
The Applicant presented at the Tribunal hearing very credibly and as a thoroughly good and honest witness. However, she also presented as an elderly lady who found the proceedings stressful and whose recall of past events was very uneven. Both during the Board proceedings and the Tribunal hearing the Applicant testified that she relied on her son, Peter. No doubt, as a loving son, Peter has tried to the best of his endeavours to advance his mother’s case. However, in doing so, it is clear that the Tribunal has before it documents prepared for the Applicant and statements attributed to her that are not her words. This, of course, presents a number of problems for the Applicant’s case.
THE HEARING
On 25 May 2017, after being granted an extension of time, the Applicant applied to the Tribunal for a review of the Board’s decision Exhibit 1 T 13 pp. 56 – 57, T1 pp. 1 – 8.
The hearing was convened in Brisbane on 13 April 2018. The Applicant was represented by Mr A Harding of Counsel instructed by Mr Warren Searle and the Respondent by Mr Dube of Sparke Helmore. The Applicant gave evidence and was cross-examined. No other witnesses were called.
THE LAW
Section 13 of the Act provides, inter alia, that when a veteran’s death is war-caused, the Commonwealth is liable to pay a pension to the dependants of the veteran. “Dependant” is defined by s 11(1)(c) to include the widow of a veteran.
Subparagraph 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have rendered eligible war service while the person was rendering operational service.
Attention is then drawn to s 6D: Operational service – other post World War 2 service. Section 6D applies, inter alia, to a member of the Defence Force who was assigned for service:
(a)in the Federation of Malaya at any time during the period from and including 1 August 1960 and including 27 May 1963; and
(b)in North East Thailand (including Ubon) between 28 July 1962 to 24 June 1965.
A person who has rendered full-time service as a member of the Defence Force in the above geographic locations during the periods enumerated is taken to have rendered operational service.
Accordingly during the three periods of operational service enumerated above, the veteran is deemed by s 7(1)(a) to have rendered eligible war-service.
The death of a veteran is taken to be “war-caused” if, inter alia:
“(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or war-caused disease, as the case may be…” – s 8(1)(f).
Importantly, the Act contains provisions facilitating proof of the relationship between death and war-service.
Subsection 120(1) of the Act provides that where a claim under Part II for a pension in respect of the death of a veteran relates to operational service by the veteran, the Repatriation Commission shall determine that the death was war-caused, unless it is satisfied beyond reasonable doubt that there is not sufficient ground for making that determination.
Subsection 120(3) provides that in applying subsection (1) in respect of the death of a veteran, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the death with the circumstances of the service rendered by the veteran.
Subsection 120(3), however, must read in conjunction with s 120A. Subsection 120A(3) provides that for the purpose of s 120(3), an hypothesis connecting the death of a person to the circumstances of any service rendered by a person is reasonable only if there is in force a Statement of Principles (SoP) determined under s 196B(2) that upholds the hypothesis.
Section 196A establishes the Repatriation Medical Authority (the Authority). The main function of the Authority is to determine SoPs – s 196B(2).
If the Authority is of the view, based on available sound medical-scientific evidence, that it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out
·the factors that must exist; and
·which of those factors must be related to the service rendered by the veteran,
before it can be said that a reasonable hypothesis has been raised connecting the injury, disease or death of that kind with the circumstances of the service – s 196B(2).
A factor causing, in this case, a death, is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in s 196B(14). The Respondent submitted (Statement of Facts, Issues and Contentions of the Respondent), and it was not contested, that the relevant circumstance in this matter is:
“(b) it arose out of, or was attributable to, that service”.
In understanding the role and use of SoPs it is helpful to refer to the following observations of Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:
“It is necessary to repeat that the SoP has no function in relation to proof or disproof (under s 120(1)) of the particular facts of a veteran’ case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994 at 1808) the SoPs were intended to ‘provide the template within which the individual claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.”
The methodology to be adopted in reaching a decision as to whether a death is “war-caused” was explained on appeal by Beaumont, Hill and O’Connor JJ in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) as follows (97 – 98):
“1. The Tribunal must consider all of the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11)..
3. 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 s 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.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused…If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
The Deledio methodology is a helpful tool but is clearly not a substitute for complying with the requirements of the Act. To apply the Deledio methodology in a mechanistic manner and without proper regard to compliance with the Act would lead a decision-maker into error: Hill v Repatriation Commission (2005) 85 ALD 1 at 16 – 17.
There are antecedent inquiries required of the Tribunal before applying the Deledio methodology which were explained by the Full Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280 as follows (284 – 285):
“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:
1. whether the claimant was a veteran, or a dependant of a deceased veteran;
2. whether the veteran has suffered an injury or disease or has died..; and
3. the cause of death or the ‘kind of death’ of the veteran..
these matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”
CONSIDERATION
Preliminary Issues
As explained in Collins it is necessary to deal with certain antecedent threshold issues.
It is not contested that the Applicant is the widow of the veteran who rendered operational service in both Malaya and Thailand in the period December 1960 to March 1963.
It is also not contested that the veteran died in December 2015 and that his Death Certificate lists his cause of death as metastatic colon cancer.
However, the cause of death for the purposes of ss 120 and 120A requires an inquiry into the ‘kind of death’ suffered by the veteran – s 120A(4): see Repatriation Commission v Codd [2007] FCA 877. It was not disputed that the relevant kind of death in this matter is malignant neoplasm of the colorectum – Applicant’s Statement of Facts and Contentions para 10.
Deledio Methodology – First Step
The first step of the Deledio methodology is aimed at ensuring the proper application of s 120(3). At this initial stage the Tribunal does not engage in a fact finding exercise.
The Tribunal is only required to be reasonably satisfied that the hypothesis raised has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied upon – Forrester v Repatriation Commission [2013] FCA 898 at [14]. Moreover, as Mortimer J pointed out in Forrester (at [30]), whether that material points to or supports a hypothesis can be determined by inference or assumption.
In this matter the hypothesis raised by the Applicant is that links the veteran’s death with his operational service is as follows (Applicant’s Statement of Facts and Contentions para 6):
(a)as a result of stressful operational service, the veteran increased his smoking habit;
(b)this increased smoking led to the veteran developing metastatic colon cancer which caused his death.
It was not contested by the Respondent (Statement of Facts, Issues and Contentions of the Respondent para 56) that Step 1 is met.
Second Step
It is not contested that there is an SoP in force that is relevant to the hypothesis raised, namely No 37 of 2013 Malignant Neoplasm of the Colorectum (as amended).
Third Step
Introduction
The third step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. This requires the Tribunal to ascertain if the hypothesis “fits” or is “consistent with” the “template” in SoP 37 of 2013.
When applying the Deledio methodology, the issue of “reasonableness” arises in both Steps 1 and 3. The Tribunal is required to assess reasonableness from both a factual and a medical/scientific prism. Assistance is obtained from the following observations of Mortimer J in Forrester (at [32]):
“The reasonableness of a hypothesis is in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks to the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because an SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it…”
While not disputing Step 1, the Respondent contends that the Applicant’s claim fails at Step 3 – Statement of Facts, Issues and Contentions of the Respondent para 64:
“the Respondent contends that the hypothesis is not reasonable because, on all the raised facts, the asserted relationship between the Veteran’s operational service and the smoking factor in s 6(b) of the SoP, while not fanciful, is nonetheless not sufficient to raise a reasonable hypothesis.”
SoP 37 of 2013
Close attention needs to be given to the terms of SoP 37 of 2013.
Section 3 of the SoP defines malignant neoplasm of the colorectum. It is not disputed that the veteran’s disease fits that definition.
Next, s 6 outlines the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colorectum with the circumstances of the veteran’s service. Paragraph (b) of the enumerated factors is the operative factor in this matter:
(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 15 years before the clinical onset of malignant neoplasm of the colorectum; and
(ii)where smoking has ceased, the clinical onset of malignant neoplasm of the colorectum has occurred within 30 years of cessation…”
The term “pack-years of cigarettes, or the equivalent thereof in other tobacco products” is defined in s 9 of the SoP as follows:
“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 7300 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 7.3 kilograms of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars, smoked alone or in any combination.”
The first issue is to identify the date of the clinical onset of the veteran’s colon cancer, insofar as the SoP requires it to be within 30 years of the date of the cessation of smoking.
The veteran’s Death Certificate states that he suffered from metastatic colon cancer for six months prior to his death. Neither the Applicant nor the Respondent challenged this statement. Accordingly, I find that the clinical onset of the malignant neoplasm of the colorectum was June 2015.
The next issue to ascertain is if the veteran commenced smoking at least 15 years before the clinical onset of the malignant neoplasm of the colorectum.
Again it is clear from the veteran’s service records and the evidence of the Applicant that he had been an habitual smoker from at least 1956 (when he first met the Applicant) and possibly as early as 1952. In any event, it is not disputed that the veteran commenced smoking at least 15 years before the clinical onset of colon cancer, and, accordingly s 6(b)(i) of the SoP is met.
Finally, s 6(b) of the SoP requires that the veteran smoked at least 15 pack-years of cigarettes before the clinical onset of colon cancer.
The veracity of the Smoking Questionnaire completed by the Applicant was not challenged by the Respondent. The evidence before the Tribunal, therefore, satisfies this requirement.
In conclusion, the Respondent concedes that it is open for the Tribunal to determine that the hypothesis raised is reasonable because the raised facts are consistent with, or point toward, the veteran smoking at least 15 pack-years of cigarettes before the clinical onset of his malignant neoplasm of the colorectum. Finally, the Respondent concedes that the raised facts are consistent with, or point towards, meeting the requirements of s 6(b)(i) and (ii) of the SoP – Statement of Facts, Issues and Contentions of the Respondent para 63.
Relation to service
Having determined that the relevant factor in the SoP has been satisfied or raised, attention must be given the threshold issue, namely, whether the factor is related to the operational service rendered by the veteran – s 5 SoP.
This was helpfully explained by Cowdroy J in King v Repatriation Commission [2011] FCA 1436 as follows (at [46]):
“The correct application of the SoP proceeds in the following manner. Clause 5 sets out the factors that must ‘as a minimum exist before it can be said that a reasonable hypothesis has been raised’ connecting the applicants prostate cancer with his relevant service. Accordingly, the investigation must be first directed to the question whether any one or more of the several factors itemised in clause 5 of the SoP are satisfied or ‘raised’. Only when that inquiry has been determined in favour of a veteran, does the inquiry then shift to the threshold issue, namely whether that factor is related to service.”
It is perhaps trite, but nonetheless important to point out, that the mere rendering of operational service is insufficient to found the necessary causal connection mandated by s 196B(14). The fact that a veteran has rendered operational service is not the “gateway” or “answer” to satisfying the requirement of causal connection to service see Dunn v Rehabilitation Commission [2006] FCA 1703 at [46] per Nicholson J.
The Applicant’s case, as propounded in the Applicant’s Statement of Facts and Contentions, is set out below:
“16. The next requirement is that the factor be related to the Veteran’s service. The complicating factor in this case is that the Veteran had an established smoking habit before his operational service began, albeit there is evidence that it was a light smoking habit at that time. In this regard, in the Applicant’s statement, she stated that the Veteran smoked ‘casually at this time when in special settings’. She estimated that he smoking (sic) perhaps a few cigarettes per day prior to his posting to RAAF Butterworth.
17. Notably in the same statement, the Applicant stated that when her husband returned to Australia after his operational service, he was smoking two packets per day.
18. It is submitted that this evidence points to a significant increase in smoking which was at least temporally connected to the Veteran’s operational service.
19. Further, this level of consumption continued for many years. This evidence points to a sustained increase in smoking which was at least temporally connected to the Veteran’s operational service.
20. Accordingly, there is a raised fact pointing to the element of a hypothesis requiring that the Veteran smoking at least 15 pack years of cigarettes before the clinical onset of malignant neoplasm of the colorectum.”
The Applicant drew the Tribunal’s attention to Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 365. In that matter Mr Kattenberg served in the RAN between 1964 and 1973, including three periods of operational service. One of the injuries claimed was a disc prolapse which, it was said, was related to Mr Kattenberg’s smoking history of at least 30 pack years of cigarettes before the clinical onset of the condition. Mr Kattenberg claimed he first smoked after he joined the RAN, but only between five and ten cigarettes each day. But in 1965 on his first trip away, he increased his smoking until he reached 40 cigarettes each day. The cause of the increase, he argued, was the easy availability of cigarettes, stress and peer pressure. He continued to smoke at that rate until he left the RAN in 1973. After leaving the RAN he reduced his cigarette consumption to 15 to 20 cigarettes each day.
The Tribunal calculated that Mr Kattenberg had smoked in excess of 219,000 cigarettes between 1964 and 1998, and accordingly was satisfied that he had smoked 30 pack years of cigarettes before the clinical onset of the disc prolapse. However, the Tribunal concluded that the material did not raise a reasonable hypothesis connecting the disc prolapse with the circumstances of the operational service because only about 20 cigarettes a day during the period 1965 – 1973 could be taken into account. That totalled 58,300 cigarettes, which was well short of the 219,000 cigarettes constituting 30 pack years of cigarette smoking.
In rejecting this approach, Emmett J said ([43] – [44]/374):
“Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the veteran’s service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service.
The tribunal did not approach the construction of SoP 130 of 1996 in that way. The tribunal construed the SoP as requiring that the smoking of at least 30 pack years of cigarettes be wholly attributable to the service. The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996…”
The principle the Tribunal is required to apply is not that all of the required pack years of cigarettes were smoked during the period of operational service, rather the Tribunal must ascertain if there is a causal relationship between the rendering of the operational service and the smoking of the specified number of pack years.
As previously noted, the Applicant had a smoking habit before he served at RAAF Butterworth. Accordingly, the issue to be determined is whether the evidence supports the proposition that his smoking increased as a result of his operational service.
In determining this issue, it is important to recognise that there must be a causal, as distinct from merely a temporal, connection as explained by the Full Federal Court in Repatriation Commission v Tuite (1993) 39 FCR 540. Davies J made the following observations (541-542):
“Eligible war service encompasses not only active service but all the incidents of service, such as life in camp…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…An illustration of the point may be found in Goward v Commonwealth (1957) 97 CLR 355 where Dixon CJ, Williams, Webb and Kitto JJ held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause. Their Honours said (at 364):
‘It is correct no doubt that if the camp had not been near a railway line and if the deceased had not been living in the camp the accident would not have happened. But these are not more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.’
…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. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
The phrase “arose out of, or was attributable to that service” is to be given a broad and generous interpretation. In Roncevich v Repatriation Commission (2005) 222 CLR 115 McHugh, Gummow, Callinan and Heydon JJ made the following observations (at [23] – [24]):
“whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be causal and not merely a temporal one.
There is little doubt in this case that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance at the Sergeants’ Mess and the consumption in some quantity, even perhaps to the point of intoxication short of physical incapacity, of alcoholic drinks. So too, the need for the appellant’s return to his quarters and the preparation of his uniform for the next day, are capable of being seen to have arisen out of, or have been attributable to, his defence service…”
The Applicant invites the Tribunal to conclude that the veteran increased his smoking habit when he was stationed in Malaya due to a variety of factors related to his service, including stress, peer pressure, easy availability of cheap cigarettes and the ubiquitous lifestyle enjoyed by RAAF personnel and their families at Penang.
Dr Palazzo’s report details that although the Malayan Emergency had officially ended by the time the veteran arrived at Butterworth there were ongoing hostilities. Dr Palazzo stated – Exhibit 6 pp. 3 - 4:
“However, this declaration did not mean that combat operations had ended, as the communist insurgents continued to resist and Australian troops continued to conduct anti-insurgency operations in the border area between Malaya and Thailand. When 2 RAR arrived in Malaya in October 1961, for example, its men found themselves conducting anti-insurgency operations in the Malayan provinces of Perlis and Kedah, to the north of Butterworth. Therefore, while the enemy were cornered, the fight against the communists continued…
Alan Stephens, a historian of the RAAF, provides a good synthesis of the situation confronting the Australian military personnel serving at Butterworth. He admits that it was a pleasant posting and the operational focus provided high job satisfaction. However, as Stephens also notes, a posting to Butterworth was not a sinecure. Throughout Clarke’s time at Butterworth and long after he left, the Australians at Butterworth were on operational footing.”
Dr Palazzo also provided useful information on the social conditions that existed at Penang – Exhibit 6 pp. 4 – 5:
“RAAF Base Butterworth was an unusual operational deployment because it was accompanied. The RAAF made provision for married quarters and a host of social services for spouses and children, including schools, hospitals and recreational facilities. Clarke would have worked during the day at the base which was on the mainland while his family lived in a provide (sic) house on the island of Penang. He would have commuted by a bus and ferry…
It was a very different, even strange environment that awaited the Australians and the heat, smells, food and even the people all exaggerated the sense of foreignness. For some it was an adventure, for others a torment to which they were unable to adjust. For the airmen, life had a degree of regimentation. They reported to work each day and did their jobs. For their spouses, it was harder…
Celebrations, of which there were many, were an excuse to consume copious amounts of alcohol which was available in abundance and was cheap to purchase…Radcliffe’s book makes no mention of smoking but it would have been a common accompaniment to the drinking that took place while socialising.”
The Respondent, correctly, pointed the following raised facts as being of particular relevance to the Tribunal – Statement of Facts, Issues and Contentions of the Respondent para 71:
·the veteran had a pre-existing smoking habit before his operational service;
·when deployed he was 25 years old;
·he worked as an electrical fitter;
·the veteran’s posting was pleasant but not a sinecure, and RAAF Butterworth was not attacked during the veteran’s posting there;
·the veteran was accompanied by his wife (the Applicant) and their second son was born during the deployment; and
·the veteran attended regular social gatherings, including with locals, where there was heavy smoking.
While any operational posting can be stressful, it could not be said that the veteran’s time at Butterworth falls into the category of a very stressful posting.
By the time he was posted to Malaya he had served in the RAAF for eight years. He was a married man with one child and had the benefit of his wife and baby son accompanying him from Australia.
The veteran had a smoking habit prior to his marriage and I accept the veracity of what the Applicant told the Board in this regard. Clearly, he was a heavy smoker.
The veteran was an electrical fitter. He was not flying aircraft or, from the meagre evidence before the Tribunal, regularly going out on patrols where there would have been a risk of injury or death.
The strong theme that emerges from the evidence is that if there was in fact an increase in the veteran’s level of smoking while stationed at RAAF Butterworth, it was connected to the lifestyle he and the Applicant lived and not any operational service he rendered.
The Applicant gave the following account of her life in Penang – Exhibit 3 p. 15:
“MR CARLIN: In Malaya for those three years, his smoking intake…
MRS CLARKE: Increased, yes.
MR CARLIN: Increased considerably, not just a little bit.
MRS CLARKE: Considerably, I’d, I’d, I would have to agree with that. Ah, but as to the num-, like, when, when he sat with Indian people, like they would take us out to various places. You know what I mean? Like, night-time, like, what do you call it? Like, you know, like cabaret, all that sort of stuff. You know what I mean?
MR CARLIN: Yep.
MRS CLARKE: Well, it was just non, non-stop smoking. The whole table was non-stop. You know the Indians were all smoking and he was smoking. And, um, it was during that period that I’d had my first Peter Stuyvesant and I said, oh, I’ll go on, a anyway. But it was just non-stop. And, like they were regular visitors. As a matter of fact, one of, one of the ah, Indian chaps, he eventually took us to his home in Dato Keramat Road, in, ah, on Penang. And, ah, I met his wife for the first time there. And, oh, she …had about eleven or twelve children. And from that time until even now I’m still in contact with two of his daughters….”
The Applicant expanded on this aspect of her stay in Penang in her statement of 25 August 2017 – Exhibit 2
“21. During those occasions when Arthur was home, there were regular recreational activities. We both joined a badminton club. I recall regular parties at various homes. The Indian friends mentioned earlier were often the instigators of much of the partying. This gave Arthur the opportunity to consume more alcohol than he would ordinarily do and also increase his smoking. Arthur relayed that they were actually encouraged to smoke by peers as a way to battle the stress.
22. I noticed that Arthur was smoking far more heavily during our time on Penang Island which I put down to the stress of his regular separations from us, coupled with the guilt he had for moving his family to such a dangerous situation. The cheap cigarettes and the regular social gatherings were a crucial vent for men and families to release the pressure of their situation and gave him the opportunity to do so, but I have no doubt that Arthur’s increased smoking was entirely due to the stress that he felt as a consequence of being separated from his family and the risk we all lived under throughout this time…”
Despite the Applicant suggesting that she and the Applicant were under great stress and in a dangerous situation, the fact of the matter is that Butterworth during this time was not a combat posting nor was Penang an unpleasant locale.
The RAAF ensured that families were not separated and great care was taken so that families could lead a relatively comfortable life. Certainly, the Applicant and the veteran had a lifestyle that would have exceeded the expectations of most ordinary Australians of that time. For example, the Applicant stated – Exhibit 2 para 15:
“Like all families posted to Penang, we were allowed the services of an Amah who is usually a live-in maid/housekeeper. Our Amah was a young Chinese girl named Sue. We also had the services of a gardener/tukang kebun.”
The Tribunal’s attention was drawn to Bassett and Repatriation Commission [2002] AATA 531. In that matter the veteran enlisted in the RAAF in 1956 at the age of 19. He rendered operational service in Malaya for a short period in 1957 and was medically discharged with a “psychopathic personality” disorder on 26 November 1957.
Mr Bassett smoked three to four cigarettes daily in 1956 and this had increased to 25 per week by early 1957. Following his posting to Malaya he smoked up to 60 cigarettes each day and maintained a high level of smoking for many years after leaving the RAAF. The Tribunal gave the following account of his smoking habits whilst in Malaya:
“35. In Malaya he did a great deal of guard duty and enjoyed plenty of leave. He visited bars on a regular basis. Work was three or four days on and then three or four days off duty. A work day was eight hours. He smoked unfiltered cigarettes and did so more when on leave than when on duty. He visited gambling houses where his smoking increased because he was exposed to exotic conditions. The excitement caused him to smoke more. He bought tobacco both on the base and off-base. It was extremely cheap….In Malaya he smoked cigars, pipe tobacco and roll-your-owns. He was able to remain awake for over 24 hours at a time and could smoke up to 60 cigarettes a day, or 40 cigarettes plus perhaps five cigarillos, a cigar and a pipe of tobacco. When on duty he would smoke 15 cigarettes, five roll-your-owns and an occasional pipe or cigar over a 24-hour period.”
In finding in favour of the veteran, the Tribunal made the following observations:
“50. Clause 4 of the SoP requires that the hypothesis relate the tobacco use to Mr Bassett’s operational service. Ms Sadleir did this by indicating that when Mr Bassett was assigned to Malaya he was a guard and defender. His smoking rose dramatically because he was bored. When on leave he would smoke significantly heavier. His smoking had been light until Malaya…Similarly, operational service introduced Mr Bassett to gambling and the culture of the Malayan gambling house, of which smoking was part…
53….the tribunal considers the exotic nature of Mr Bassett’s location, his exposure to the temptations of the gambling houses of Malaya, his personal psychological problems, his relatively young and impressionable age, and his opportunities for heavy smoking in Malaya combine to add credibility to his account.”
Bassett is distinguishable from this matter. Bassett was an unmarried 20 year-old when he was posted to Malaya. He had underlying psychological problems and did not have a long-standing cigarette smoking habit when he took up duties. He was engaged in security duties. In short he was an impressionable young man who due to a range of circumstances engaged in a pattern of behaviour, including chain smoking, that resulted in a psychiatric collapse within only a few months of his arrival in Malaya. This factual matrix bears little if no relation to the facts presented in this matter.
There appears to be a number of matters that the Applicant relies upon that must be addressed:
(a)the availability of cheap cigarettes;
(b)the exotic and ubiquitous lifestyle of Penang;
(c)the ongoing danger presented by the Emergency;
(d)the pressure experienced by the veteran of being separated, at times, from his family.
The availability of cheap cigarettes of itself cannot provide the relevant connection with operational service – Creaney and Repatriation Commission [2005] AATA 177. Such availability, taken with other factors, may be productive of a positive answer to the causation question, but can never be determinative in isolation.
The posting to an exotic location also cannot provide, alone, the connection with operational service. It is merely a temporal, and not a causal, connection. If it were otherwise then every single person who was posted to Butterworth, could, by that fact alone, establish the necessary connection to service.
Much was made of the veteran’s alleged stress. Unfortunately, as the veteran has passed away it is not possible to ask direct questions as to how he felt. Much of the evidence about his stress is supposition many decades after the event. However, as an electrical fitter in a base that was not subject to attack and at a time when the Malayan Emergency had officially ended, it is difficult to accept that the veteran was under the degree of stress suggested. No doubt he did experience stress, but that is what would be expected when being posted to an RAAF base in a foreign country.
Finally there is the question of the stress caused by the separation of the veteran from his family. The reality is that he was hardly separated from them. They accompanied him to Malaya and he stayed with them every night except for four discrete occasions. Those occasions were when he was posted to Ubon between August and October 1962, Singapore, Bangkok and Saigon between February and March 1961, RAF Tengah for one week in June 1961 and two weeks at Clark Air Base the Philippines in November to December 1961. In short, of the two years plus that the veteran was posted to Butterworth, he was separated from his family for only 13 weeks.
The Applicant and veteran lived a comfortable and ostensibly happy lifestyle in Penang. They made life-time friends, experienced the joy of the birth of their second child and, apparently, had an extensive and rewarding social life.
The evidence presented, then, does not support the hypothesis that this was a hardship post and that the Applicant and her husband lived a stressful and unhappy existence. On the contrary the evidence points to the Applicant and the veteran having a comfortable lifestyle surrounded by Australian and Malayan friends.
The evidence, accordingly, points to the fact that if the veteran’s smoking increased while he was stationed in Malaya (and this is assumed), then this was not caused by any stress related to his service, or any incident of his service.
The veteran’s operational service in Malaya was merely the setting for the increase in his smoking habit, and not the cause. Accordingly, the increase in the veteran’s smoking habit whilst rendering operational service in Malaya and Thailand did not arise out of, or was attributable to, his operational service.
Fourth step
Having determined that that Step three cannot be satisfied, it is not necessary to deal with the fourth step.
DECISION
The decision under review is affirmed.
I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
........................[Sgd]................................................
Associate
Dated: 13 July 2018
Date of hearing: 13 April 2018 Counsel for the Applicant: Mr Anthony Harding Solicitors for the Applicant: Terence O'Connor Solicitor Advocate for the Respondent: Mr Ben Dube Solicitors for the Respondent: Australian Government Solicitor
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