Cole and Repatriation Commission
[2004] AATA 3
•6 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 3
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/1435
VETERANS' APPEALS DIVISION ) Re BARRYMORE WILLIAM COLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member
Mr E Fice, MemberDate6 January 2004
PlaceMelbourne
Decision The decision under review in so far as it concerns “peptic ulcer disease” is set aside and in substitution IT IS DECIDED:
(i) The appropriate diagnosis of the disease suffered by the applicant is peptic ulcer disease and gastro-oesophageal reflux disease; and
(ii) these diseases arose out of or were attributable to eligible service; and
(iii) the application be remitted to the respondent to assess pension entitlement.
The remainder of the decision concerning varicocele and cerebral ischaemia is affirmed.
(Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS – Smoking commenced in service – subsequent diagnosis of peptic ulcer and gastro-oesophageal ulcer disease – events in and features of service – causal link between service and diseases – decision set aside.
Veterans' Entitlements Act 1986 ss.7(1)(c), 9(1)(b) 13(1), 120(4) and 120B(3)
Re Robertson and Repatriation Commission AAT No 12666 [1998] AATA 127
Re McLeod-Dryden and Repatriation Commission 53 ALD 428
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 36 ALR 411
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Keenan (1989) 19 ALD 509
Smith v Repatriation Commission (1999) 58 ALD 158
Critch v Repatriation Commission (1996) 43 ALD 574REASONS FOR DECISION
6 January 2004 Mr J Handley, Senior Member
Mr E Fice, Member1. This is an Application for Review of a Decision made by the Veterans' Review Board on 8 August 2001 affirming the decision of the Repatriation Commission made on 20 March 2000 that the Applicant's peptic ulcer disease, varicocele and cerebral-ischaemia are not related to war service.
2. In his Statement of Facts and Contentions filed with the Tribunal on 12 May 2003 and the accompanying letter from the Applicant's solicitors, the Applicant advised that he had withdrawn the claims relating to the varicocele and cerebral ischaemia.
3. The parties agree that the Veteran suffers duodenal ulcer disease and for the purposes of identifying an applicable Statements of Principles it was agreed that the Instruments with respect to “Peptic Ulcer Disease” and “Gastro-Oesophageal Reflux Disease” are applicable.
4. Mr Liefman who appeared on behalf of Mr Cole and Mr Purcell who appeared on behalf of the respondent, both conceded at the outset:
(i)The diagnosis as above.
(ii)The application of the above Statements of Principles.
(iii)The requisite quantity of cigarettes and duration of smoking thereby satisfying applicable factors in the Instruments; and
(iv)Clinical onset in the 1950’s.
5. The only issue not conceded was whether the Applicant’s smoking habit was attributable to service. This was the issue in these proceedings.
6. As we now reflect on the evidence heard and the documents lodged in these proceedings, we initially had some concerns about whether the clinical onset of the gastric disease from which the applicant suffers was in fact in 1944. If it was, the Applicant could not succeed in satisfying the Statement of Principle with respect to gastric oesophageal reflux disease because he would need to establish smoking for two (2) years before 1944 when, on his evidence, he commenced smoking in 1943.
7. However we note that whilst Dr Merrett describes symptoms of “relapsing, duodenal ulcer disease and ulcerating oesophagitis” in 1944, and the Applicant’s evidence to the Veterans’ Review Board (refer transcript, page 10) records his evidence of dyspepsia in 1944, the Applicant –
·First attended for treatment in 1950 (transcript, page 13).
·Attended Prince Henry Hospital in the 1950’s for a gastroscopy which revealed the presence of a duodenal ulcer (page 14).
·The Box Hill Hospital on 18 March 1978 records the Applicant was diagnosed with a duodenal ulcer “20 years ago” (medical records, page 21); and
·Mr Sutherland, a treating physician reported on 1 October 1973 that a duodenal ulcer was found on x-ray “15 years ago”.
8. This chronology suggests clinical onset (within the meaning of Re Robertson and Repatriation Commission AAT No 12666 [1998] AATA 127 and Re McLeod-Dryden and Repatriation Commission 53 ALD 428), later than 1944. Accordingly we are satisfied the clinical onset, if not in 1950, was in the 1950’s and certainly after 1944.
Service History
9. Mr Cole enlisted in the RAAF on 23 July 1943 whereupon he was posted to No. 2 Recruit Depot, Tocumwal in New South Wales. Although Mr Cole gave evidence that his recruitment training lasted a period of six (6) weeks, his record of service history shows that he completed his recruit training on or about 27 August 1943, a period of five (5) weeks after enlistment.
10. Mr Cole was posted to No. 3 School of Technical Training in Sydney on 27 August 1943 where he remained for a period of some ten (10) months. He was then posted to No. 1 Personnel Depot in Melbourne on 7 June 1944 where he remained until being posted to No. 2 Personnel Depot in Sydney on 27 May 1946. He was discharged from the RAAF on 2 July 1946. Mr Cole did not see operational service during his period of enlistment.
Relevant Legislation
11. Sub-section 9(1)(b) of the Veterans' Entitlements Act 1986 ("the Act") provides, inter alia, that a disease contracted by a veteran shall be taken to be a war-caused disease if:
the injury suffered, or disease contracted, by the veteran arose out of or was attributable to, any eligible war service rendered by the veteran.
12. Sub-section 7(1)(c) of the Act provides that:
A person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War II being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service.
13. Sub-section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease the Commonwealth is, subject to the Act, liable to pay, in the case of incapacity of the veteran, a pension by way of compensation.
14. Sub-section 120(4) of the Act provides that, except where the claim is made in respect of operational service, the Commission shall, in making any determination or decision in respect of a matter arising under the Act or the Regulations including the assessment or re-assessment at the rate of pension granted under Part II of Part IV, decide the matter to its reasonable satisfaction.
15. Sub-section 120B(3) of the Act provides:
In applying sub-section 120(4) to determine a claim, the Commission is to be reasonably satisfied that any 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 sub-section 196B(3);
(ii) a Determination of the Commission under sub-section 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.
Relevant Statements of Principles
16. It is agreed between the parties that the relevant Statements of Principles which apply are :
(a)No.22 of 1999 dealing with peptic ulcer disease and in particular factor 5(b) which provides that it can be said, on the balance of probabilities, that peptic ulcer disease is connected with the circumstances of a person's relevant service where the person smokes at least ten (10) cigarettes per day at the time of the clinical onset of the peptic ulcer disease; and
(b)
No.63 of 1999 (which was subsequently revoked by Instrument No.53 of 2002 on 6 August 2002 although the factor referred to remains identical) where factor 5(f) provides that on the balance of probabilities,
gastro-oesophageal reflux disease is connected with the circumstances of a person's relevant service where the person has smoked at least ten (10) cigarettes per day or the equivalent thereof in other tobacco products and has smoked at least two (2) pack years of cigarettes or the equivalent thereof in other tobacco products at the time of clinical onset of
gastro-oesophageal reflux disease. The Statement of Principles defines "cigarettes per day or the equivalent thereof in other tobacco products" to mean, either cigarettes, pipe tobacco or cigars, alone or in any combination, where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco by weight. The term "pack years of cigarettes or the equivalent thereof in other tobacco products" is defined as a calculation of consumption where one (1) pack year of cigarettes equals twenty (20) tailor made cigarettes (being the standard cigarette pack contents) per day for a period of one calendar year, or 7,300 cigarettes. One tailor made cigarette approximates one (1) gram of tobacco or one (1) gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7,300 cigarettes or 7.3 kilos of smoking tobacco by weight.
17. Both parties agree that the quantity and duration of smoking cigarettes by Mr Cole satisfies the above factors.
Relevant Facts
18. Prior to enlistment in the RAAF at 18 years, Mr Cole lived at home and he worked in the local co-operative store for his father. He did not smoke and his mother did not approve of smoking.
19. Upon enlistment, Mr Cole was posted to undergo basic training at a camp situated near Tocumwal in New South Wales. Mr Cole's evidence is that it was not what he expected, it came as something of a shock to him and on arrival he was told by the drill Sergeant that the basic training would "make or break him". He realised that this was something of a bluff but agreed that the basic training was demanding. He gave evidence that he was apprehensive about "gas chamber" training and the fact that one trainee was apparently killed whilst climbing a tree after receiving inoculations. Mr Cole also gave evidence that no leave was granted during the course of basic training and that in effect training continued seven (7) days per week.
20. Mr Cole first tried smoking when offered cigarettes by fellow trainees during "smoko" breaks. He said these usually occurred during drill training and when these "smoko" breaks were called, a number of his fellow trainees would in fact smoke. He was offered cigarettes at that time and, because he did not want to be the odd man out and wanted to feel as if he was "part of the team", he joined in and started to smoke. He saw it as being part of the camaraderie between all of the trainees.
21. It was not too long before Mr Cole was buying his own cigarettes which were readily available in the camp canteen. They were cheap and because there was no leave during the training period and he was confined to the camp, Mr Cole said the ready availability of cigarettes encouraged him to smoke and precipitated an addiction to nicotine.
22. Mr Cole said that it was not long before he was smoking between ten (10) to twelve (12) cigarettes per day and possibly up to fifteen (15) per day. Although the timing is not clear, Mr Cole subsequently began to roll his own cigarettes at which time he says he consumed about two (2) ounces of tobacco per week and then graduated to three (3) ounces per week. According to Mr Cole this happened at the time when he was at 1 Personnel Depot in Melbourne which was between 7 June 1944 and 27 May 1946. Although there is some dispute as to the exact quantity of tobacco which Mr Cole was consuming per week, there seems to be no controversy about the fact that he was consuming at least two (2) ounces per week by 1944 which would equate to approximately twenty (20) cigarettes per day.
23. Mr Cole's cigarette consumption increased after being discharged. He finally stopped smoking in July 1977.
24. Mr Cole's evidence is that while serving at No. 1 Personnel Depot in Melbourne, he suffered from what he called dyspepsia. Mr Cole described that as a burning sensation in his stomach rising up towards his throat. In order to obtain relief, he obtained antacids from a medical orderly.
25. Dr Andrew Merrett examined Mr Cole on 25 July 2002. According to Dr Merrett, Mr Cole was suffering from relapsing duodenal ulcer disease and ulcerating oesophagitis. Dr Merrett reported that the symptoms first developed in 1944 and have persisted through to the present time. There is no evidence to contradict Dr Merrett's opinion.
Determination
26.
There is no dispute that Mr Cole suffers from peptic ulcer disease and
gastro-oesophageal reflux disease. Both parties agree that these illnesses are associated with cigarette smoking. The principal issue between the parties in this matter is whether or not Mr Cole's disease is a war-caused disease in accordance with the meaning provided under sub-section 9(1)(b) of the Act. To fulfil the requirements of that sub-section Mr Cole's disease must have arisen out of or have been attributable to any eligible war service rendered by him between 23 July 1943 and 2 July 1946. Additionally, because Mr Cole's service was not operational service, the standard of proof required is that set out in sub-section 120(4) of the Act, whereby this Tribunal is required to decide to its reasonable satisfaction whether or not the disease contracted by Mr Cole arose out of or is attributable to his eligible war service. In applying sub-section 120(4) of the Act, the Tribunal must have regard to sub-section 120B (3) of the Act.
Conclusion and Reasons for Decision
27. In Repatriation Commission v Law (1980) 31 ALR 140 the Full Federal Court discussed s101(1)(b) of the Repatriation Act 1920 being the precursor to s9 of the current legislation. The Court then decided:
It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause. Under s 101(1)(b), it is sufficient to show “attributability” if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.
28. The decision of the Full Court was subsequently upheld by the High Court on appeal in Repatriation Commission v Law (1981) 36 ALR 411.
29. In Repatriation Commission v Tuite (1993) 29 ALD 609, Davies J discussed the operation of s9(1)(b) of the current legislation. He concluded at page 611:
The words of s 9 (1) (b) require that there be a causal connection between the eligible war service and the disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease.
30. Later His Honour concluded:
Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9 (1) (b),………….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.
31. At page 612 His Honour concluded:
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.
32. It follows that a temporal connection with service will not satisfy the expression “arose out of or was attributable to”. In Repatriation Commission v Keenan (1989) 19 ALD 509, Pincus J decided that an argument advanced by a veteran of having commenced smoking whilst in hospital during service would not establish a causal connection with a disease associated with smoking under s9(1)(b). His Honour concluded:
It was plainly not the law that an "eligible service" veteran, suffering from the diseases which smoking causes, must obtain a pension if he could show that he first smoked during the war. The Tribunal had erred in law in failing to consider whether the diseases arose out of or were attributable to K's war service.
33. In this application we were given considerable assistance by well researched and comprehensive written submissions lodged by the representatives of both parties. We have concluded, for reasons which follow, and find as a fact that the gastric diseases suffered by Mr Cole arose out of, or were attributable to his eligible war service.
34. The Federal Court has dealt with a number of cases where the commencement of smoking may be connected to military service and has held that circumstances within a military service environment which are capable of establishing the relevant causal connection are: that cigarettes were cheap; there was peer pressure to smoke; there was some apprehension as regards the enlisted person's future in the military; boredom (Repatriation Commission v Tuite (1993) 29 ALD 609), (Smith v Repatriation Commission (1999) 58 ALD 158); and stress (Critch v Repatriation Commission (1996) 43 ALD 574).
35. The evidence given by Mr Cole which the Tribunal accepts is that he did not commence smoking until such time as he joined the RAAF in 1943. He came from an environment where smoking was disapproved. In fact he described his pre-enlistment domestic environment as being “protective”.. He described enlistment as a “open life” and he was apprehensive. During his initial training, Mr Cole was confined to camp for a period of five (5) weeks in an environment where training was conducted seven (7) days per week. He was a young male in an environment where many of the males also training with him smoked and significant pressure was put on Mr Cole to commence smoking. He did so because he did not want to be the "odd person out" and he believed that it contributed to a sense of camaraderie amongst the trainees. He had access to the camp canteen where cigarettes were readily available at a cheap price. He found the training demanding and not what he expected. He was apprehensive in the course of training particularly in respect of training dealing with a simulated gas attack where he was subjected to tear gas in what was described as the "gas chamber". Mr Cole told us that following that experience he “panicked”.. He was aware of a fellow trainee being killed in a fall from a tree, apparently as a consequence of an inoculation received a short time before the accident occurred. Mr Cole also told us that he and other recruits were described as “mother’s boys”, that they had been told that they would be “made to be mature because war was a serious business”. Additionally, a drill sergeant had told Mr Cole and others that he would “make or break” them, and his reaction, then, was shock and beyond his expectation. Whilst Mr Cole told us in evidence that some of the comments made by his superior’s were regarded, now, as bluff, at the time he regarded those comments as serious and contributed to his apprehension.
36. In addition to the events and circumstances experienced by Mr Cole in his initial training, he recalled that when he volunteered for service, submarines had been detected in Sydney Harbour in 1942 and an Australian boat had been torpedoed. He recalled that the United States occupied an air base at Bankstown and “everyone was talking about he war on the radio and in newspapers”.
37. During the hearing it was obvious that Mr Cole had given a number of different histories as to his smoking habit comprising different estimates as to quantities and when he smoked. We need not recount that evidence here, save that we are satisfied that the requisite number of cigarettes according to the Statement of Principle were smoked and the relevant factors have been satisfied. We should also say that having regard to passage of time since 1942, and Mr Cole subsequently having suffered a cerebrovascular accident, it is to be expected that his recollection of quantities and comprehension of questions asked of him over the years in various questionnaires would be dubious. We agree with the submissions put by the respondent that later in service he had developed a confirmed and substantial smoking habit but we do not resile from the above findings and the decision which we ultimately make that a contribution by service to his smoking habit has, as a fact, been established.
38. In all of the circumstances the events in service as described above are capable of giving rise to the required causal connection under s9(1)(b). We are satisfied that the requisite minimum quantity of cigarettes was smoked by Mr Cole and his subsequent gastric diseases arose out of or were attributable to his war service. We reject the submission put that the connection with service was no more than temporal. Accordingly, we are reasonably satisfied on the balance of probabilities, the material before us raises the required causal connection between the gastric diseases from which Mr Cole suffers and the eligible war service rendered by him.
39. The decision therefore of the Veterans’ Review Board made on 8 August 2001 with respect to the condition of peptic ulcer disease should be set aside. The application should be remitted to the respondent for assessment of pension entitlement in accordance with these reasons. The remaining parts of the decision under review should be affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior Member and
Mr E Fice, MemberSigned: Grace Carney
Personal AssistantDate/s of Hearing 20 August 2003
Date of Decision 6 January 2004
Counsel for the Applicant Nil
Solicitor for the Applicant Mr P Liefman
Counsel for the Respondent Mr G Purcell
Departmental Advocate Ms J McCulloch
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