CLEGG and REPATRIATION COMMISSION

[2011] AATA 410

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 410

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3297

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL CLEGG

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date17 June 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd]..................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Defence service with Royal Australian Navy – Application of Statements of Principles – Diagnosis and clinical onset of emphysema – Commencement of smoking during defence service – Temporal but no causal connection of smoking to service – Emphysema not defence-caused – Decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 5, 14, 68, 70, 120, 120B

Repatriation Commission v Smith (1987) 15 FLR 327
Repatriation Commission v Tuite (1993) 17 AAR 158

REASONS FOR DECISION

17 June 2011 Mr R G Kenny, Senior Member    

BACKGROUND

1. Michael Clegg served with the Royal Australian Navy (“the RAN”) from 13 November 1973 until 2 October 1979. On 12 June 2009, he lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension for “emphysema” which he contended was related to his RAN service. On 10 February 2010, the respondent rejected the claim. On 12 July 2010, the Veterans’ Review Board (“the Board”) affirmed that decision.

SERVICE, ISSUES AND LEGISLATION

2. Mr Clegg’s service with the RAN is a period of defence service in accordance with s 68 of the Act. The standard of proof for determining diagnostic matters and issues of causation for defence service are set out in s 120(4) of the Act. This provision requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance the probabilities.[1] The application of that provision to matters of causation is affected by the terms of s 120B of the Act. This provides that, where a relevant Statement of Principles (“SoP”) has been published by the Repatriation Medical Authority (“RMA”), a decision-maker may be reasonably satisfied that a condition is defence-caused only if the SoP upholds the contention that the condition is, on the balance the probabilities, connected with that service.

[1] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.

3. Subsection 70(1) of the Act provides that, where a member of the RAN is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The term “disease” is defined in s 5D(1) of the Act to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. I am satisfied that the term extends to the condition of emphysema. Subsection 70(5) of the Act sets out criteria of causation. Accordingly, the disease is taken to be defence-caused if it arose out of, or was attributable to, any defence service of Mr Clegg.

4.      It is not in dispute and I am satisfied that the appropriate diagnosis which answers Mr Clegg’s claim is emphysema. In that regard, I have noted the report dated 30 September 2009 from Dr Robert Edwards, Thoracic and Sleep Physician. The RMA has published Instrument No 31 of 2004 as a SoP for that condition.

CONTENTIONS

5.      Mr Clegg submitted that his emphysema developed because of his smoking habit, which commenced during and because of the stresses of his eligible service. For the respondent, Mr Kelly conceded that Mr Clegg’s emphysema developed because of his smoking habit, that he commenced smoking during eligible service but that the only relationship between that smoking and Mr Clegg’s service was temporal and not causal.

EVIDENCE

6.      Mr Clegg joined the RAN at the age of 17 years and 10 months. Until then, he had lived at home with his family. He completed his three months basic training and then commenced a four to six month course to become a quarter master gunner. All of this service was at HMAS Cerberus. His first sea posting was to HMAS Swan. He then served on HMAS Duchess from around Christmas 1974.  

7.      Mr Clegg began smoking in April 1974 during his quarter master gunner course which he found stressful. He also commenced consuming beer at that time, considering that the two habits went hand in hand. He found that, when he increased his alcohol consumption, his smoking levels also increased. He was subjected to harsh treatment at times by senior sailors and recalled an occasion when he was pulled from his bunk and assaulted by three to five sailors, with the result that he was hospitalised. He did not implicate that assault as contributing to his pattern of smoking. He believed that the long hours of work, especially on night watches at sea, contributed to his need to smoke to stay alert. When he was at sea, both cigarettes and alcohol were available at prices substantially below what they were in civilian life. This encouraged him to smoke more, as did the fact that almost all of the sailors he served with were smokers. He smoked up to 20 tailor made cigarettes per day from April 1974 and described himself as having become a committed smoker by the end of 1974 when he joined the Duchess. In 1977, he increased his smoking to up to 40 tailor made cigarettes per day as well as some roll‑your-own cigarettes. In a smoking questionnaire completed on 15 April 2005, and in his evidence, he attributed this increase to stress associated with his marriage breakdown and separation from his children at that time. He ceased smoking in 2008. 

8.      Mr Clegg also said that he spent many hours in circumstances where he would breathe fumes from oil tanks, which he was required to clean from time to time, as well as dust from cleaning and scraping to remove paint and rust. 

CAUSATION

9.      Instrument No 31 of 2004 sets out the following causal factors and associated definitions for relating emphysema to Mr Clegg’s service:

Factors

5.The factor that must exist before it can be said that, on the balance of probabilities, chronic bronchitis and emphysema or death from chronic bronchitis and/or emphysema is connected with the circumstances of a person’s relevant service is:

(a)smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or

(b)       being exposed to a respiratory tract irritant, resulting in signs and symptoms of acute and serious insult to the lower respiratory tract, within the ten years immediately before the clinical onset of chronic bronchitis and/or emphysema; or

(c)       inhaling respirable crystalline silica dust, at the time material containing crystalline silica was being:

(i)        produced, or

(ii)       excavated, or

(iii)      drilled, or

(iv)used in manufacturing, cleaning or blasting,

for a period or periods of time totalling at least 925 days before the clinical onset of chronic bronchitis and/or emphysema; or

(d)inhaling smoke from the combustion of biomass or fossil fuels whilst in an enclosed space, for a total of at least 5000 hours before the clinical onset of chronic bronchitis and/or emphysema;

…

Other definitions

8. For the purposes of this Statement of Principles:

“an enclosed space” means a substantially enclosed area, for example, the interior of a building, ship or aircraft, a covered workshop or factory;

“a respiratory tract irritant” means:

(a)       mustard gas; or

(b)       Lewisite; or

(c)       chlorine gas; or

(d)       phosgene; or

(e)       phthalic anhydride; or

(f)       anhydrous ammonia gas; or

(g)       another respirable agent which causes comparable tissue damage;

“death from chronic bronchitis and/or emphysema” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s chronic bronchitis and/or emphysema;

“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 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 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;

10.     While Mr Clegg referred to the inhalation of matter apart from cigarette smoke, there were no submissions made and no evidence before me relating to factors (b) to (d) of the SoP. Cigarette smoking in clause 5(a) is the only factor for consideration. Mr Kelly conceded that Mr Clegg had smoked at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of his emphysema. I am reasonably satisfied that his concession was properly made and that the factor in clause 5(a) is met. Clause 6 of the SoP also requires that the factor in clause 5 must be related to the relevant service rendered by the person. In that regard, I accept Mr Kelly’s submission that a mere temporal connection with service is not sufficient to satisfy the SoP, in the sense that Mr Clegg’s service must have been a contributing cause to his smoking and not merely the setting in which his smoking began or increased.[2]

[2] See Repatriation Commission v Tuite (1993) 17 AAR 158 at 160.

11.     Mr Clegg commenced smoking in April 1974, well before he commenced service on the Swan or the Duchess. He was faced with long hours while completing his quarter master gunner course and he described himself as a committed smoker by the end of 1974 when he joined the Duchess. That habit commenced shortly after his eighteenth birthday and paralleled his newly developed pattern of alcohol consumption. He continued those habits in tandem for many years in the company of his peers. Service at sea enabled him to continue this pattern of smoking and drinking at lower cost and his evidence was that an increase in smoking occurred in 1977. However, his evidence was that this increase was because of stress associated with his marriage problems and separation from his children. 

12.     While Mr Clegg began to smoke cigarettes during his service, I am reasonably satisfied that this practice was not causally associated with any aspect of that service. He chose to commence smoking in 1974 while undertaking his quarter master gunner course and was smoking up to 20 tailor made cigarettes per day by the end of 1974 when he served on the Duchess. He subsequently increased his smoking levels in 1977 but this was associated with factors apart from his service. I am reasonably satisfied that Mr Clegg’s smoking is not causally related to his service and it follows that the requirements of the SoP are not met. For that reason, I am satisfied that Mr Clegg’s emphysema did not arise out of and was not attributable to defence service and, in accordance with s 70(5)(a)of the Act, is not defence-caused.

DECISION

13.     The Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed:  .....................[Sgd]........................................
              Danielle Armstrong, Research Associate

Date/s of Hearing  31 May 2011
Date of Decision  17 June 2011
The applicant was self-represented
The Respondent was represented by Jeff Kelly, departmental advocate