Crawford and Repatriation Commission

[2004] AATA 1064

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1064

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/187

VETERANS' APPEALS  DIVISION		)
Re		ELSIE MAUD CRAWFORD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard McCabe
Dr Kenneth Levy, Member

Date13 October 2004 

PlaceBrisbane

Decision The decision under review is set aside.  The veteran’s death was war-caused.  The matter is remitted to the respondent for calculation of the rate of pension.  The date of effect of this decision is 26 August 2000.

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

BJ McCabe
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – pensions and benefits – whether chronic bronchitis, peripheral vascular disease and ischaemic heart disease are related to service – whether respondent can disprove necessary fact beyond reasonable doubt – decision set aside

Veterans’ Entitlements Act 1986 ss 120(1), 120(3), 120(4), 120A(3), 196B(2), 196B(11)

Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission [2003] FCAFC 136
Byrnes v Repatriation Commission (1993) 177 CLR 564
Law v Repatriation Commission (1980) 29 ALR 74
Repatriation Commission v Law (1981) 147 CLR 638
Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

13 October 2004 Senior Member Bernard McCabe
Dr Kenneth Levy, Member

Introduction

1.      This is an appeal by Elsie Maud Crawford against the decision of the Veterans’ Review Board (the VRB) dated 16 December 2003.  The VRB rejected a claim for pension on the basis that the husband of the appellant, Stanley Crawford (Deceased)(“the veteran”) had not died from causes that were related to war service.

2.      That decision co-exists with reasons provided by a differently constituted VRB of 11 April 2002 whereby the appeal was adjourned for the acquisition of further information.  Both of those decisions emanate from an appeal lodged against the original decision of the delegate of the Department of Veterans’ Affairs on 15 May 2000.  The original application was lodged on 26 April 2000, approximately six weeks after the death of the veteran.

3. The matter was heard on 9 July 2004. The applicant was represented by Mr O’Neill of counsel. The respondent was represented by Mr Smith, a departmental advocate. Before the Tribunal were the documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975.  The applicant’s statement was admitted into evidence.  The respondent also submitted a transcript of the VRB hearing dated 16 December 2003.

The Facts

4.      This matter centred on the issue of Mr Crawford’s smoking on war service.  He had operational service in Korea with the Royal Australian Navy (RAN) from 3 June 1953 to 12 February 1954.  He initially served with the Royal Navy in the United Kingdom from 1940 until April 1949 when his service record shows that he was seconded or was on “loan from RN”.  His initial period of service with the Royal Australian Navy (the RAN) was for 2 years from April 1949.  He properly enlisted with the RAN from October 1952.

applicant’s argument

5.      The applicant says the veteran was smoking only 5 cigarettes per day prior to service in Korea.  On his return, she said that he was smoking 12 to 15 cigarettes per day.  (In oral evidence she stated he was smoking 15 to 20 cigarettes per day).  She also stated that he had nightmares and other changed behaviours upon his return from war service in Korea. 

6.      The applicant says the veteran’s wages were so small he would not have had money to buy cigarettes in the quantities alleged by the respondent.  She says he could only afford cigarettes in those quantities when he was on operational service.

Respondent’s argument

7.      The respondent says there is not a sufficient connection between the veteran’s death and the circumstances of his relevant service under the Veterans’ Entitlements Act 1986 (“the Act”) to give rise to liability under the Act.

8.      In particular the respondent says the applicant began heavy smoking before his eligible service.

The Evidence

9.      In a smoking questionnaire dated 22 January 1999 (f18 T4) the applicant says he began smoking in 1942.  At that time he says he was smoking 20-25 cigarettes per day.  In his reasons for commencing smoking he refers to HMS Thanet – clearly a British vessel.

10.     An out patient record dated 25 November 1959 records the applicant was then smoking “20-30 cigarettes per day” (f11 T4).

11.     In the hearing Mr Smith analysed in some detail the veteran’s postings within the RAN.  In cross-examination the applicant agreed that given the periods of service on ships, many months would often go by during which she did not see the veteran.  Nevertheless, she maintained her view that when she observed him, he never smoked more than 5 to 6 per day in the years immediately prior to his war service in Korea.  In particular, she said that prior to going to Korea they were living with her mother, who was intolerant of smoking.

12.     It is clear the applicant was not in a position to observe how much her late husband smoked when he was at work, either on a naval base or on a ship. But the applicant said she knew how much money he had at his disposal. She said by the time he returned from service in Korea, she was then working and they had an increased income available to herself and the veteran. She said he was able to keep smoking at an increased rate.

Legal Framework

13. This appeal is being considered under section 44 of the Administrative Appeals Tribunal Act 1975.  The jurisdiction of the Tribunal was not disputed by either party. 

14.     The Tribunal must first satisfy itself as to several preliminary questions.  These were conveniently set out in Repatriation Commission v Hancock [2003] FCA 711 at paragraph 9 as follows –

(a)      Was there evidence that the person had died?
(b)      Was the deceased a “veteran”?

(c)       Was the applicant the widow of the deceased?

None of these issues were disputed by either party to the appeal.

15. The substantive issue to be resolved relates to section 120A(3) of the Veterans’ Entitlements Act 1986 (“the Act”). That section was introduced as an amendment to the Act in 1994 and requires that any claim after that date must be assessed as to whether there is a reasonable hypothesis connecting the death with operational or defence service. 

16.     The approach the Tribunal must follow was usefully summarised by the Full Federal Court in Repatriation Commission v Delidio (1998) 83 FCR 82. It involves four stages.

17. At the first stage the Tribunal must be satisfied a hypothesis exists which connects the injury or death with the circumstances of a veteran’s service. The second stage requires the Tribunal to identify whether there is a Statement of Principles (SoP) in force in respect of the injury or death. (They are issued pursuant to section 196B(2) or (11) of the Act). The Tribunal must then be satisfied the hypothesis raised by the applicant fits the SoP. If it does, the hypothesis is deemed reasonable in accordance with section 120(3) of the Act. The Tribunal cannot make ultimate findings of fact at this point: see Elliott v Repatriation Commission (2002) 73 ALD 377 at 384. Under section 120(1) the veteran is then presumed to succeed – unless the Tribunal can be satisfied beyond reasonable doubt that a necessary fact of the hypothesis can be disproved, or an inconsistent fact proved. This is a “heavy burden of disproof” (Law v Repatriation Commission (1980) 29 ALR 74). The High Court said the section “imposes on the Commission an onus of disproof” (Repatriation Commission v Law (1981) 147 CLR 638).

Consideration and Analysis

18.      The facts show that a death certificate was issued listing the causes of death as:

“1(a) Ventricular arrhythmia (b)  Ischaemic heart disease 2. Peripheral vascular disease, chronic airways disease.”

19.     Based on the causes of death and a known smoking history of the veteran, which was apparently linked at least to the period of operational service, the Tribunal is satisfied there is a hypothesis connecting the veteran’s death with the circumstances of his relevant service.

20.     The following SoPs are relevant:

§  Instrument No 73 of 1997 – Chronic Bronchitis

§  Instrument No 65 of 2002 – Atherosclerotic Peripheral Vascular Disease

§  Instrument No 53 of 2003 – Ischaemic Heart Disease

21.     The next stage is to examine whether the hypothesis raised by the applicant “fits” the SoPs.  Based on the oral evidence given by the applicant about her husband’s smoking history, we are satisfied the relevant factors are met.

22. The final test relates to s 120(1) of the Act. That section says:

“The claim will succeed unless:

(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis.”  (Byrnes v Repatriation Commission (1993) 177 CLR 564)

23.     Can the respondent prove another inconsistent fact beyond a reasonable doubt?

24.     There is evidence that in the RAN the applicant smoked at least 5 cigarettes a day prior to his service in Korea.  There is also clear evidence that he smoked more than 5 cigarettes a day upon his return from operational service in Korea. 

25.     The medical evidence seems unequivocal that Mr Crawford’s death was linked to smoking.  His service (naval) medical records submitted to the Tribunal did not assist in relation to the question of clinical onset of his diseases.  However, it is noted that he had vascular problems as well as some anxiety and depression by the time of his discharge in 1975.  This also seems supportive of the veteran’s case (in that it does not provide any evidence contradicting the applicant’s hypothesis).

26.     There is other evidence, specifically about the causation and quantity of smoking.  A statement presented to the Tribunal (exhibit 2) highlighted that the veteran had started smoking prior to his eligible service in the RAN.  In a smoking questionnaire dated 22 January 1999 (f18 T4) the applicant says he began smoking in 1942, at which time he says he was smoking 20-25 cigarettes per day.

27. There is evidence the veteran smoked in the Royal Navy in 1940. That is not a period of eligible service for the purposes of the Act. He had been smoking for at least 13 years before his service in Korea and by his own account in quantities considerably in excess of those claimed by the applicant.

28.     The Tribunal was also conscious of some gaps in the evidence.  The respondent argued that there was no recognition in the applicant’s case of what smoking may have occurred when Mr Crawford was either at work on the naval base or on ship.  The applicant’s case seems to assume that he did not smoke at all in either of these venues.  We note he was away from the applicant for at least 9 months prior to his service in Korea (based on oral evidence presented at the hearing). However, there was evidence that his smoking had reduced at various times throughout his career in the RAN, and certainly in the years before he went to Korea.  We regarded the applicant as a credible witness and historian.

29.     We note the low cost of cigarettes to servicemen on a defence force establishment in Australia or on war service.  This throws doubt on the applicant’s contention that the veteran could not afford to smoke in large quantities.

30.     In considering whether the facts were established “beyond reasonable doubt”, the Tribunal was conscious of the decision of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408. There the Court said:

“….if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material, …. or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.”  (per Mason CJ, Deane and McHugh JJ at 416)

31.        On the basis of the evidence before us, and the credibility of the applicant, we are not satisfied that the respondent’s case is made out beyond reasonable doubt. We think the inferences required to satisfy the applicant’s claims cannot be rejected beyond reasonable doubt. We accept the applicant smoked – and may have smoked heavily – during his service with the Royal Navy. But we accept the applicant’s account that her late husband had cut back his smoking significantly in the period prior to his service in Korea. We acknowledge she could not be sure how much he was smoking at every point during every day while he was based in Brisbane and living with her and her mother. However she gave an impressive and credible account of a conscientious man who was unlikely (and had no particular reason) to conceal his smoking from his wife, and who was conscious of the limited financial resources available to the family. We are satisfied the respondent could not disprove this man settled into a pattern of smoking large amounts of cigarettes after he departed for Korea on operational service.

Conclusion

32.     The decision under review is set aside.  The veteran’s death was war-caused.  The matter is remitted to the respondent for calculation of the rate of pension.  The date of effect of this decision is 26 August 2000.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard McCabe and Dr Kenneth Levy, Member

Signed:         [Sgd]
  Associate:  Thomas Ritchie

Date of Hearing:  9 July 2004
Date of Decision: 13 October 2004
The applicant was represented by Mr O'Neill of counsel.
The respondent was represented by Mr Smith, a departmental advocate.