Cornish and Repatriation Commission
[2005] AATA 472
•24 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 472
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/2
VETERANS' APPEALS DIVISION ) Re MARGARET ANN CORNISH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr JG Short (Member) Date24 May 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
JG SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – claim for Widow’s Pension – operational service – veteran died of ischaemic heart disease – claim that veteran’s smoking history was causally related to operational service in South Vietnam – decision affirmed
Veterans’ Entitlements Act 1986 ss 6, 7, 8, 13, 120(1), 120(3), 120A, 196B
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Deledio (1998) 83 FCR 82
Kattenberg v Repatriation Commission (2002) 73 ALD 365Statement of Principles Instrument No 53 of 2003
Statement of Principles Instrument No 9 of 2004REASONS FOR DECISION
24 May 2005 Mr JG Short (Member) 1. Mrs Cornish is the widow of a Vietnam veteran, Mr Garry Cornish, born 22 March 1935, died 11 March 2003. Mr Cornish served in the Australian Army (the Army) on full-time duty from 13 May 1968 until 20 May 1969. He served in Vietnam from 4 March 1969 until 18 March 1969. That service in Vietnam is operational service and Mr Cornish’s only period of eligible service. On 2 May 2003 Mrs Cornish lodged a claim for Widow’s Pension. On 9 May 2003 the Repatriation Commission (the Commission) rejected the claim. Mrs Cornish appealed to the Veterans’ Review Board (VRB). On 16 October 2003 the VRB affirmed the Commission’s decision. On 5 January 2004, Mrs Cornish lodged an application with the Administrative Appeals Tribunal seeking review of the Commission’s decision.
issue before the tribunal
2. The issue before the Tribunal is whether Mr Cornish’s death was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (the VE Act). It is agreed between the applicant and the respondent that the cause of the Mr Cornish’s death was ischaemic heart disease (IHD), and it is common ground that if Mrs Cornish is successful in her claim, the date of effect would be 12 March 2003, that is the day after Mr Cornish’s death.
background
3. Mrs Cornish married Mr Cornish in 1960. Mr Cornish was conscripted for National Service on 27 April 1954. He continued to serve in the Civilian Military Forces (CMF) until 27 June 1984. Mr Cornish volunteered for a period of full-time service from 13 May 1968 until 20 May 1969. It was during this period that he spent two weeks, from 4 March 1969 until 18 March 1969, in South Vietnam. He went to South Vietnam as part of an observers’ tour group. In a letter to the Department of Veterans’ Affairs dated 24 March 1993 he advised that because of a shortage of liaison officers of captain rank, he was posted on arrival as an Australian Artillery Liaison Officer with the US 101 Airborne Division at the Fire Support Control Centre at Bien Hoa.
4. Mrs Cornish contended that Mr Cornish’s IHD was war-caused as a result of a smoking habit which Mrs Cornish suggested was commenced or exacerbated as a result of Mr Cornish’s operational service. The T documents contain statements which include suggestions that Mr Cornish had experiences in South Vietnam, including crawling through Viet Cong tunnels; and seeing a friend’s severed head in a plastic bag thrown to the floor. At the outset of the hearing, Mrs Cornish’s counsel said that he did not intend to rely on any of these events as relevant to Mr Cornish’s smoking rate. He said that he simply relied on Mr Cornish performing combat related duties while on operational service in South Vietnam.
legislative framework
5. Sections 6, 7, 8, 13, 120(1), 120(3), 120A and 196B of the VE Act are relevant to this application for review.
6. Section 8 of the VE Act describes when an injury or disease or death is taken to be war-caused, and relevantly provides as follows:
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service; or
(e) the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(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 a war-caused disease, as the case may be;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise.
…”
7. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973. Further, s 7 of the VE Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
8. As Mr Cornish has performed operational service, as defined in s 6 of the VE Act, the determination of whether his condition of IHD is war-caused is to be made by applying ss 120(1) and 120(3), as affected by s 120A, of the VE Act. Those sections provide as follows:
“120 Standard of proof
(1)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.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
9. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
10. Section 196A of the VE Act provides for the establishment of the RMA. The functions of the RMA are outlined in s 196B of the VE Act and relevantly include the following:
“196B(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
(ca) warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…”
The meaning of the requirement to set out the factors which must relate to service (in this case operational service) rendered by a veteran is provided for in s 196B(14). That subsection provides as follows:
“196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease - it would not have occurred:
(i)but for the rendering of that service by the person; or … .”
11. The relevant SoP in this matter is Instrument No 53 of 2003, as amended by Instrument No 9 of 2004, in respect of Ischaemic Heart Disease (the IHD SoP). In accordance with the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321 the Tribunal must apply the SoP in force at the date of its decision.
mr cornish’s experience in south vietnam
12. Mr Cornish was conscripted for National Service on 27 April 1954, and continued to serve in the CMF until June 1984. He volunteered for a period of full-time service in the CMF from 13 May 1968 until 20 May 1969, and during that period spent from 4 March 1969 until 18 March 1969 in South Vietnam.
13. Exhibit R6 is a report of Writeway Research Service Pty Ltd dated 8 July 2004. That report included the following comment:
“…
There is documentary evidence that Capt Cornish was sent to the US base at Bien Hoa to the Fire Support Coordination Centre there. I have been unable to establish his status during this attachment but anecdotal evidence and his own recollections 32 years later indicate that he had an active role with the Australian artillery liaison party.
…”
14. Mr Cornish contributed an article to a publication “Vietnam Remembered” edited by Mr Barrie Newman (extract annexed to abovementioned report). The article includes the following paragraph:
“… My task was relatively simple. When our batteries wanted to fire a mission, my obligation was to physically check by direct liaison with other FSCC members whether the intended target and trajectory would clear other friendly units in the field. If all was OK, I would transmit to our arty unit that they had ‘air and ground clearance’. …”
15. Mr Chris Hill told the Tribunal that he sat next to Mr Cornish on the trips to and from Vietnam in 1969. He said that Mr Cornish had told him on the return flight to Australia that he had worked as a Liaison Officer. He said that Mr Cornish did not mention any other aspects of his Vietnam service.
16. While there was some suggestion in the evidence that Mr Cornish had engaged in other remarkable activities, including patrolling with an American infantry unit; entering an enemy built tunnel system; seeing dismembered bodies and body parts, including the decapitated head of a South Korean officer with whom he had formed a friendship, and having a grenade explode close to his ear, the Writeway Research report prepared by Lieutenant Colonel PJ Pearson, was unable to verify any of these suggestions and as mentioned, Mrs Cornish’s counsel said that none of these events were relied upon as a basis for a causal nexus between Mr Cornish’s service in South Vietnam, his smoking habit, and his eventual death through IHD.
mr cornish’s smoking history
17. During his life, Mr Cornish provided smoking histories on a number of occasions. On 13 September 1993, Mr Cornish provided a history recorded by Dr AJ Farmer, former Departmental Medical Officer. This record is found at T8/50-55. Dr Farmer was called to give evidence, and provided background information concerning the way in which he elicited a smoking history. Dr Farmer recognised his writing and read from the document:
“Cigs. Onset at 18 yrs just before joining.
18-34 yrs about 20/day. In V.N. much the same.
Post V.N. 20/day. Ceased … ’92.”
18. At T9/60 is an entry purporting to have been written by Mr Cornish in October 1999 in support of his then claim for acceptance of emphysema as having been war-caused. Mr Cornish wrote:
“Started smoking during 3 months National Service – addicted ever since. Specialist opinion (respiratory Research Unit – Queen Elizabeth Hospital) claim disease directly related to smoking.”
The statement goes on to say that Mr Cornish first became aware of the disability of emphysema in 1994.
19. On 18 October 1999 Mr Cornish completed a smoking questionnaire in relation to the abovementioned claim for acceptance of emphysema. The questionnaire appears at T9/68, and records Mr Cornish’s then recollection that he first started smoking on a regular basis “Winter of 1954 – during National Service”. In answer to the question “Why did you start to smoke on a regular basis?” Mr Cornish has recorded:
“1.Some degree of peer pressure as member of 16NS Battalion at Woodside S.A.
2. Cigarettes readily available at canteen.
3. Seemed to suppress appertite [sic] (always hungrey [sic] back then).”
The same document records Mr Cornish as indicating that from 1960 to 1963 he smoked approximately 30 cigarettes a day due to an addiction, and from 1967 to 1975 40 per day. In relation to the reason for this change, he said “Unable to accurately state – just seemed to smoke more.”
20. Mrs Cornish’s counsel foreshadowed the evidence of his witnesses by indicating that they would provide evidence of their observations of Mr Cornish’s smoking pattern over the years. He added that he was not relying on any particular expertise held by any of these witnesses in reference to the genesis of the smoking patterns they observed.
21. Mrs Cornish said that she first met Mr Cornish when she was 17 and he was 21 years of age. Her recollection of Mr Cornish’s pre-eligible service smoking history seemed uncertain. She said that she did not really notice Mr Cornish smoking during their courtship. However, she did say that just prior to their marriage in 1960 he was purchasing packets of cigarettes. Mrs Cornish said that on Mr Cornish’s return from South Vietnam she found that his personality had changed, and that his rate of cigarette consumption was about a packet a day. Mrs Cornish’s written statement, made in support of her application, wherein she indicated that Mr Cornish’s smoking rate on his return from Vietnam was at a rate of 80 a day was put to her. She said that she could not explain why she had referred to 80 cigarettes a day. She then said that the maximum would have been about 70 a day.
22. Mrs Cornish later said that it was not until about July 1971 that she really noticed an increase in Mr Cornish’s rate of tobacco consumption. She said that it was at about this time that she and Mr Cornish moved to a new home. She said that Mr Cornish would not smoke inside the house, but did smoke in the garden and in his shed. She said that he was rarely home at this stage of his life. Mrs Cornish later said, after a brief adjournment in proceedings, that she had just been reminded by her daughter that the increase in Mr Cornish’s smoking occurred on his return from Vietnam, rather than in 1971.
23. Mrs Cornish was invited to comment on the statements made by Mr Cornish to the effect that he had smoked about 20-30 cigarettes a day for many years prior to travelling to Vietnam, and that his rate of consumption did not change during his service in South Vietnam. Mrs Cornish said that Mr Cornish did not always tell the truth about his illnesses.
24. Mr William Kennerwell, Mrs Cornish’s brother, gave evidence that he had noted an increase in Mr Cornish’s cigarette consumption in the 1970s to the early 1980s. He said that Mr Cornish had smoked at the time Mr Kennerwell had first met him, in about 1956. He said that he was aware that Mr Cornish had travelled to Vietnam, but did not specifically recall the occasion. He said that Mr Cornish was frequently away on camps. Mr Kennerwell said that prior to Mr Cornish going to South Vietnam he had smoked at the rate of about 20-25 cigarettes a day. Mr Kennerwell volunteered that he seemed “a normal smoker for the era”. He said however, that from the mid 70s to early 80s he had noted Mr Cornish had become a chain smoker. He understood that Mr Cornish was at that time performing a difficult job. He said that he would see Mr Cornish at family barbeques and other social events. He added that he did not look forward to those events due to Mr Cornish’s way of “cutting people down”.
25. Dr Dawn Moorhouse, Mrs Cornish’s sister, said that Mr Cornish rarely smoked before travelling to South Vietnam, and that on his return from South Vietnam he was smoking heavily. She referred to a rate of about 20 a day.
26. Mr Walter Anderson, a family friend and former member of the CMF, was called to give evidence. He said that he had first met Mr Cornish during his first week of call-up at Woodside Army Barracks. He said that Mr Cornish was smoking at that time. He was however unsure of Mr Cornish’s then rate of smoking. He said that perhaps it was the same as his, 10 a day. Mr Anderson said that he thought that everyone took up smoking when they did their National Service. Mr Anderson said that he noticed a change in Mr Cornish’s smoking rate in the 1970s. Mr Anderson said that he had given up smoking in 1971, and had noticed that Mr Cornish was still smoking. He described Mr Cornish’s then smoking rate as heavy. It was put to Mr Anderson that Mr Cornish himself had completed reports to the effect that he had smoked at a rate of 20-25 cigarettes per day on joining the CMF. Mr Anderson indicated his surprise, stating that 25 cigarettes was a lot to smoke in a day. Mr Anderson said that he “probably asked” Mr Cornish what his rate of smoking was, and was told two packets a day.
27. Mr Chris Hill had met Mr Cornish in about 1964. He said that they were both in the CMF, but in different barracks. He said that they undertook a two week course at Woodside together. He said that Mr Cornish only smoked lightly before going to South Vietnam. It was put to Mr Hill that Mr Cornish had indicated that he was smoking at a rate of about 20-25 cigarettes a day prior to travelling to South Vietnam. Mr Hill responded by saying that he would not really have taken any note of it. Mr Hill said that he undertook a promotional course at Kanungra with Mr Cornish in July 1973. He said that it was then that he noted Mr Cornish chain smoking.
28. Exhibit R5 is a statement of Mr Cornish’s Medical Officer, Dr WH Otten, dated 22 March 2005. This statement is to the effect that Dr Otten was Mr Cornish’s General Practitioner from 1983 until 1993, including the time of Mr Cornish’s heart attack in December 1989. Dr Otten said that smoking was identified as an issue in relation to Mr Cornish’s IHD, and that Mr Cornish’s smoking was discussed on numerous occasions. He said that Vietnam service was never discussed in relation to smoking, stress, or any other issue. He said that stressful conditions of Mr Cornish’s police service were discussed on numerous occasions, and that a link between his stressful police work and his smoking was raised. Dr Otten said that he had provided a letter in support of Mr Cornish’s invalidity retirement from the Police Force on the grounds that work related stress had contributed to his continuing smoking, and was a factor that would aggravate his heart condition.
29. The respondent called Mr David Brook, a retired Army Officer. Mr Brook said that he had known Mr Cornish through CMF duties for 10 years prior to Mr Cornish’s trip to South Vietnam, and had frequent contact with Mr Cornish over those years. He said that he would see him four times a month and on Army camps. He said that he recalls two CMF officers as being heavy smokers, and that Mr Cornish was one of those officers.
consideration
30. In determining this matter I have followed the approach laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, which is as follows:
“1 The Tribunal must consider all 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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 ss 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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.”
31. I have considered all of the material before me. That material points to a hypothesis connecting IHD with the circumstances of Mr Cornish’s operational service. The hypothesis is that Mr Cornish commenced or increased a pathological smoking habit as a result of operational service, and that his smoking habit eventually led to his death through IHD.
32. Furthermore, SoPs have been determined by the RMA pursuant to s 196B(2) of the VE Act in respect of IHD. Instrument No 53 of 2003 relevantly provides as follows:
“Statement of Principles
Concerning
ISCHAEMIC HEART DISEASE
…
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:
…
(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease;
…”
33. The first two steps in Deledio (supra) are satisfied and I now turn to the third. This entails determining whether the hypothesis fits one or more of the factors referred to in the SoP. Once again, this step involves considering the material before the Tribunal, but without making any findings of fact at this stage of the process.
34. In respect of IHD, the only relevant factors are those referred to in sub-paragraph 5(f)(i) and (ii) of the SoP. Factors 5(e)(i), (ii), and (iii) are not applicable as Mr Cornish did not cease smoking prior to the clinical onset of IHD. Mr Cornish suffered a heart attack in December 1989, and was still smoking at about that time.
35. I will now consider whether the hypothesis raised by the applicant complies with one of the relevant factors in SoP 53 of 2003. For IHD, this will involve considering whether the material before me points to Mr Cornish having smoked at least five cigarettes a day or the equivalent thereof, for a period of at least one year immediately before the clinical onset of IHD, or at least one pack year (7,300) or the equivalent thereof before the clinical onset of IHD. The material before me indicates that Mr Cornish’s rate of consumption of cigarettes was at least one pack year (7,300) prior to the clinical onset of this condition, which occurred no later than December 1989, thus meeting factor 5(f)(ii) of the IHD SoP.
36. The respondent contested not only the suggestion that Mr Cornish’s smoking rate had increased during his operational service, but also contested the suggestion that there had been a causal connection between Mr Cornish’s rate of smoking and his operational service. I refer to the judgment of the Federal Court in the matter of Kattenberg v Repatriation Commission (2002) 73 ALD 365, where Emmett J analysed a SoP which included a factor of 30 pack years of smoking before the clinical onset of intervertebral disc prolapse. His Honour said, at pages 42-43:
“[42] An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that “factors must be related to any relevant service”. That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).
[43] Thus, smoking at least 30 pack years of cigarettes will be related to relevant service rendered by a veteran … if the smoking of that quantity of cigarettes:
·arose out of, or was attributable to, that service;
·was contributed to in a material degree by, or was aggravated by, that service; or
·would not have occurred but for the rendering of that service by the person.
Accordingly, the requirement … 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.”
37. Mrs Cornish’s evidence is that she noted a change in Mr Cornish’s demeanour on his return from his two weeks of operational service in South Vietnam. She also said that Mr Cornish had increased his rate of cigarette consumption. This is part of the material before the Tribunal. The Tribunal has also noted that the material contains an indication that Mr Cornish, although being posted to South Vietnam as a CMF Artillery observer, ended up serving a brief period as a Liaison Officer. I remind myself that at this stage I have not yet reached the point of making findings of fact. The evidence before me includes evidence of a pathological smoking habit and of operational service suggested by the applicant to be causally related to that smoking habit. Accordingly, I find that the third test in Deledio has been met in that the hypothesis fits at least one relevant factor in the IHD SoP.
38. I am now required to apply the fourth test in Deledio. This requires me to decide whether any of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or whether another fact that is inconsistent with the hypothesis has been proved beyond reasonable doubt. Unless I so decide, by virtue of s 120(1) of the VE Act, I must determine that Mr Cornish’s condition of IHD and death was war-caused. The respondent argued that the suggestion that Mr Cornish increased his smoking rate as a result of his two weeks service in South Vietnam was mere speculation. The respondent also submitted that Mr Cornish’s own evidence should be preferred wherever it conflicted with that of witnesses called by the applicant.
39. I have considered the various statements provided by Mr Cornish during his lifetime relating to his smoking pattern. In answer to specific questions put by Dr Farmer, Mr Cornish said that he had not increased his smoking habit during his time in Vietnam. His clear answers to Dr Farmer’s questions were that he had started smoking at about age 18 years, and continued smoking at virtually an unchanged rate of about 20 cigarettes a day for the following 16 years, and did not alter that rate during his two weeks service in South Vietnam. This statement provided to Dr Farmer is in general consistent with Mr Cornish’s hand written statement made in support of his claim for acceptance of emphysema in October 1999. That statement was to the effect that Mr Cornish started smoking during his three months National Service, and had been addicted ever since.
40. In relation to Mr Cornish’s pre-operational service smoking pattern, Mrs Cornish eventually said that she really could not remember. She said that Mr Cornish did buy some packets of cigarettes. She also told the Tribunal that on his return from South Vietnam he smoked about a packet a day. She assumed this would be a rate of 20-25 cigarettes a day. She initially said that it was not until July 1971 that she noticed an increase in Mr Cornish’s rate of cigarette consumption. She later said that her daughter had reminded her that the increase was from the time of his return from Vietnam. Mr Kennerwell recalled Mr Cornish smoking at 20-25 a day from 1956, and then noted an increase in his smoking pattern between the mid 1970s and early 1980s. Dr Dawn Moorhouse said that her recollection was that Mr Cornish rarely smoked before South Vietnam, and on his return smoked at a rate of about 20 a day. Mr Walter Anderson said that his best recollection was that Mr Cornish smoked at a rate of about 10 cigarettes a day when they first met, and that he was smoking at a heavier rate in the 1970s. He said that he was surprised to hear that Mr Cornish had indicated that he had smoked at the rate of about 20-25 cigarettes a day before operational service as he considered 25 cigarettes a day was a lot. Mr Chris Hill referred to Mr Cornish as being a light smoker before travelling to South Vietnam, then “fairly solid” on his return from South Vietnam until about July 1973 when he noted he was chain smoking. David Brook’s evidence was that he saw Mr Cornish virtually each week until about 1965 as part of their duties with the CMF, and that he recalled him being one of two heavy smokers.
41. In my view, Mr Cornish was in the best position to describe his pattern of smoking. People who see a smoker only during social occasions will witness that person’s rate of smoking during those social occasions. This will not necessarily give a reliable picture of a general rate of smoking. It may be for example, that a person will smoke far more frequently during social occasions, or conversely may refrain from smoking during a social occasion. It is difficult for an observer to form any reliable view in such circumstances. On the evidence before me, including the evidence of Mr Cornish’s statements concerning his smoking pattern before, during and after his two weeks service in South Vietnam, and Dr Otten’s written statement to the effect that he and Mr Cornish had discussed a connection between Mr Cornish’s pathological smoking habit and stressful police service, I find that Mr Cornish, by the time of his two weeks service in South Vietnam in March 1969, had a well established smoking habit of about 20-25 cigarettes a day, a habit which had existed for at least 10 years prior to emplaning for South Vietnam. In terms of s 196B(14) of the VE Act therefore it cannot be said that Mr Cornish’s pathological smoking habit would not have occurred but for the rendering of operational service. I further find that Mr Cornish did not increase his smoking habit during his service in South Vietnam, and that any increase in his smoking habit which may have occurred later was not related to his brief period of war service. That is, I find that Mr Cornish’s smoking pattern did not result from an occurrence which happened on operational service or arise out of, or was attributable to, that service or was contributed to in a material degree by, or aggravated by, that service.
decision
42. For the reasons provided above, the decision under review is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JG Short (Member)
Signed: .....................................................................................
AssociateDates of Hearing 21/22/23 March 2005
Date of Decision 24 May 2005
Counsel for the Applicant Mr E Jolly
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr S Campbell
Solicitor for the Respondent DVA
1
4
0