Cumming and Repatriation Commission
[2003] AATA 707
•24 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 707
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/215
VETERANS' APPEALS DIVISION ) Re LORNA CUMMING Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier R D F Lloyd, Member Date24 July 2003
PlacePerth
Decision The Tribunal affirms the decision under review, that the death of Donald Edward Cumming was not war or defence-caused.
.....…....(sgd R D F Lloyd).......................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – ex RAN – operational and defence service – death post service – claim that death was caused, or contributed to, by operational service – cause of death (renal failure) not the subject of a Statement of Principle – reasonable hypothesis standard therefore applied – smoking and obesity relevant factors – hypotheses raised connecting with eligible service but supporting evidence found to be disproved by the contemporaneous facts in the material before the Tribunal – not sufficient ground to determine death was war (or defence) caused – decision affirmed
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120(4), 120A(4)
Re Spencer v Repatriation Commission [2002] FCA 229
Benjamin v Repatriation Commission [2001] FCA 1879
Bushell v Repatriation Commission [1992] 175 CLR 408
Byrnes v Repatriation Commission [1993] 177 CLR 564
REASONS FOR DECISION
24 July 2003 Brigadier R D F Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Lorna Cumming (“the applicant”) for a review of a decision of the Veterans’ Review Board (“the VRB”) dated 13 June 2002. The VRB decision had affirmed an earlier decision by the Repatriation Commission (“the respondent”) of 11 May 2001 that the death of the applicant’s late husband, Donald Cumming, is not related to his service – under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The applicant did not attend the hearing but was represented by Mr C Hammal. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). In addition, the following document was tendered by the respondent and was taken into evidence:
· Exhibit R1: Copy of the transcript of proceedings of the VRB hearing re Donald E Cumming and the Repatriation Commission held on 22 May 2000.
No additional documentary evidence was provided by the applicant. No witnesses were called by either the applicant or the respondent.
Service
3. Mr Cumming served in the Royal Australian Navy (“the RAN”) from 3 February 1955 to 14 December 1975. His eligible service under the provisions of the Act however, is limited to the following periods:
(a) Operational Service:
Far East Strategic Reserve (FESR)
· 24 February to 7 April 1965
· 21 April to 7 May 1965
· 24 March to 25 April 1966
South Vietnam Waters
· 31 May to 22 June 1965
· 25 April to 6 May 1966
· 25 May to 9 June 1966
· 21 May to 13 June 1968
(It is noted that the periods in the FESR were not included in the consideration by the VRB in the decision under review.)
(b) Eligible Defence Service: 7 December 1972 to 14 December 1975, when Mr Cumming took his discharge from the RAN.
Cause of Death and Matters of Law
4. In regard to Mr Cumming’s operational service, the matter before the Tribunal is to be determined in accordance with s 120(1) and 120(3) of the Act. Under these provisions the Tribunal is required to decide whether, on the material before it, there is raised a reasonable hypothesis to connect the veteran’s death with his operational service. If so, it must determine, based on the facts before it, that death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
5. For Mr Cumming’s eligible defence service, as defined in the Act, and should it be applicable, the matter is to be determined by the Tribunal in accordance with s120(4) of the Act. Under this provision, it is required to decide the matter to its reasonable satisfaction – that is, on the balance of probabilities. The applicant’s advocate however advised that the contention raised on behalf of the applicant in this matter related only to operational service. Eligible defence service was not involved, and from the material available the Tribunal is fully satisfied that this is the case.
6. The initial aspect to be considered by the Tribunal is the cause of death of Mr Cumming. The Death Certificate (T documents page 190) certifies that he died on 5 January 2001. The cause of death is stated as follows:
“Acute on chronic renal failure (1 month), Ischaemic legs, Pneumonia (1 week),
(Contributory Cause) Longstanding diabetes leading to peripheral vascular disease.”
7. It is common ground that, properly disregarding pneumonia as being relevant in the matter before the Tribunal, the primary condition causing Mr Cumming’s death is renal failure (acute on chronic). From the evidence before it, the Tribunal (referring to Benjamin v Repatriation Commission [2001] FCA 1879) is reasonably satisfied that this is so. This finding is based particularly on the opinion evidence of Dr Yin, a Department of Veterans’ Affairs Medical Officer, who at page 198 of the T documents states as follows:
“The cause of death was renal failure. This was probably secondary to his [Mr Cumming’s] diabetes which is a rejected disability. Major contributory causes were the Veterans’ IHD [Ischaemic Heart Disease] and PVD (Peripheral Vascular disease] both (of) which were rejected as the Veteran did not have a Service-related smoking history. The advocate has now presented a statutory declaration and evidence regarding his smoking habit. If this fresh evidence of the Veteran’s smoking habit can be accepted as service-related, the claim [for death being service-related] can be accepted.
Dr Yin
24/04/01”
Contentions and Evidence
8. The applicant’s contention as expressed after some discussion at the hearing by her advocate, was that the late veteran’s smoking habit was indeed relevantly related to his operational service. Further, based on Dr Yin’s opinion evidence referred to above, the applicant’s advocate contends that should the Tribunal find this to be so, Mr Cumming’s smoking habit then becomes a relevant causal factor in his death by virtue of its contribution to his diabetes and other conditions stated to be major contributors in the chain of causation in the cause of death.
9. It is common ground that this smoking habit aspect is the essential issue in this matter and the Tribunal is satisfied of this also. The respondent additionally raised the factor of obesity also being potentially relevant and the Tribunal, based on the documented evidence, agreed that this should also be covered in its considerations.
10. The T documents include a number of statutory declarations, statements and other elements of evidence concerning Mr Cumming’s smoking history, including a statutory declaration made by him prior to his death. These, together with the documented medical opinion evidence of Dr Yin, in the Tribunal’s opinion comprise material clearly sufficient to raise a hypothesis along the lines of the applicant’s contention with respect to Mr Cumming’s smoking habit having been a significant causal factor in relation to his death.
11. In this particular case, there is no Statement of Principle (“SoP”) which is the subject of the condition which was the cause of death, ie. renal failure. The Tribunal is consequently required to apply the reasonable hypothesis standard of proof in this matter, in accordance with s 120 of the Act, and to apply the procedures determined in Bushell and in Byrnes v Repatriation Commission in this respect. There are SoPs covering related conditions suffered by Mr Cumming which were in the chain of causation of his death. However, with the cited case of Spencer v Repatriation Commission [2002] FCA 229 taken into account, the Tribunal’s resultant interpretation of s120A(4) is the same as contended by the respondent – ie. the applicant has an accrued right that SoPs for these related conditions not be applied in this situation. In any event, it is the Tribunal’s opinion that this matter should be decided on the basis of the reasonableness of the applicant’s hypothesis resulting from the contention provided in Dr Yin’s statement in evidence. The Tribunal further notes that a common causal factor in the SoPs that would be relevant to the contributory conditions is, in any case, that of smoking (and obesity). Hence whatever course of action the Tribunal takes in its consideration, the essential question to be decided is whether Mr Cumming’s smoking habit, which it is agreed by both parties and the Tribunal was quantitatively significant, was in fact caused, or materially contributed to, by his operational service. This therefore is the approach adopted by the Tribunal in its review consideration of the matter before it.
12. The applicant’s advocate pointed to a number of declarations and statements contained in the T documents in which some mention is made of Mr Cumming’s smoking history. The more relevant of these, with extracts from them, are as follows:
(a)Statutory Declaration by Donald Edward Cumming dated 21 January 2000 (T page 157 to 160).
“I first joined the Navy in 1955 and was a non-smoker … I started smoking in around 1961 – 62 while serving in HMAS Cerberus, Penguin and Nirimba (these were training bases). I started to smoke 3 or 4 cigs/day due to peer pressure … I continued this level until I joined HMAS Melbourne which I found quite stressful when preparing to go to Vietnam … increased my cigarette consumption to around 10 – 15 per day and sometimes more. I remained at this level until going to Vietnam again in HMAS Sydney. I was smoking 25 per day and sometimes more. I also started to roll my own. I often reached a level of 2oz per day … I actually stopped smoking … around 1971 – 72 … 2oz/day was the maximum I ever smoked but not continuous at that level …”
(b)Statutory Declaration by Lorna Joan Cumming dated 21 January 2000 (T Page 161 and 162).
“…I first met my husband in 1958. I can recall he was a non-smoker. He remained a non-smoker until he was posted to HMAS Cerberus about 1961. We were married in 1960…my husband remained in HMAS Cerberus (and) it was during his leave period (from there) I caught him smoking. At that time he would not have smoked more than 3-4 cigarettes. The most I saw my husband smoke (was) when he arrived back from Vietnam – that was round a packet a day. Sometimes he rolls his own. I can remember round about 1971 or even 1972 that he finally gave up smoking…”.
(c)Statutory Declaration by Trevor John Robbins dated 31 March 2001 (T page 180).
“…I knew him (Mr Cumming) very well due to our time at HMAS Nirimba and on HMAS Melbourne, plus several other ships…became a fairly good friend but was never really that close to him…I think he left Nirimba in 1963. One thing I do remember was that those who smoked a fair bit used to group together particularly so that they could “bum” smokes and repay them. Bluey (Mr Cumming) was not one of those and used to sit with those of us who didn’t smoke. I think he did smoke, but not heavily and I don’t recall him having one during the day, but like many he often had a fag with a drink, and that’s pretty much the only time I can remember him smoking at all, even later on (I think 1965) when we were both on Melbourne…I do recall that there was one occasion where he was plastered pretty much, probably late 1965, and he bummed a full pack of Marlboro off me…he was smoking heavier then, but certainly not before…In brief I would say he was a very light smoker until at least 1965…”.
(d)Statutory Declaration by Kevin John Wuillemin dated 16 March 2001 (T pages 181 and 182).
“I served aboard HMAS Fremantle in 1958 with Donald (Bluey) Cumming and during that time was not aware of him having been a smoker…Once again I served with Donald Cummings at HMAS Nirimba NSW for a period of about six months and to the best of my knowledge do not recall Donald Cummings having been a smoker.”
(e)Letter from K.M. Cumming (brother of the late veteran) addressed “to whom it may concern” dated 11 March 2001 (T pages 183 and 184).
“…I was thirteen years old when Donald joined the Navy. He did not smoke and was fit and healthy and a social drinker only. On leave he did not smoke, but after he served on HMAS Melbourne my parents and myself noticed that following his time in the waters off Vietnam he began smoking and drank much more than he used to…The trip to Vietnam on HMAS Melbourne did change my brother for the worse…”.
13. The evidence summarised above, the authors of which were unable to be questioned by the Tribunal or cross-examined by the respondent’s representative at the hearing, is somewhat conflicting. However, it leads to a conclusion that Mr Cumming has a non to light smoker after enlistment – but probably not commencing until about 1961 or 1962. By 1963 he had apparently increased his smoking to 10 to 15 cigarettes per day. This and up until 1965 is prior to any period of operational service and clearly his smoking habit was well established before his first operational service voyage. By or approximately at the time of going into Vietnam waters in HMAS Melbourne in 1965, smoking had apparently increased to 25 cigarettes per day, at which time he sometimes rolled his own and to the extent of 2 ounces of tobacco per day (which equates to 60 cigarettes). However, from the evidence available in this respect, the Tribunal does not conclude that the figures of 25 and 60 per day are suggested as being cumulative (ie. 85 per day). In fact, at page 154 of the T documents, Mr Cumming clearly has indicated that he believed that a total of 60 per day – at anytime – is too high a figure.
14. From all of this, the applicant’s contention is that the increase in level of smoking from the pre-eligible service period of 10 to 15 cigarettes per day to the 25 (plus) level in the first half of 1965 was caused, according to Mr and Mrs Cumming’s evidence, by the stress or apprehension experienced by Mr Cumming concerning his forthcoming service in Vietnam waters in June of that year in HMAS Melbourne. It would appear that he continued at that increased level, and at times up to 60 per day, with subsequent trips to Vietnam including that in HMAS Sydney in 1968 – until he ceased smoking. This, according to their evidence, was in 1971-72. Hence, this increased smoking in the period 1965 to 1971-2, it is contended, was caused by operational service and was subsequently a causal factor in his death (via diabetes and other conditions).
15. The respondent’s contention concerning the smoking aspect is that while it accepts that a hypothesis is raised, the applicant’s proposition that Mr Cumming’s smoking habit, or if pre-existing its increase, being due to operational service is not substantiated by the evidence which should be preferred. That evidence being the contemporaneous documented evidence before the Tribunal contained in the T documents, rather than the more recent evidence – which largely consists of recollections of situations and circumstances occurring some 40 years earlier. The respondent’s representative also considers that the evidence given by Mr and Mrs Cumming to the VRB (Exhibit R1), albeit conflicting in part, further supports this view.
16. The respondent points in particular to the following documented evidence concerning Mr Cumming’s smoking history:
(a) Medical In-Patient Record concerning Mr Cumming while serving in HMAS Gascoyne in 1960, which in part states at page 62 of the T documents:
“24.6.60 Admitted for Tonsillectomy & Adenoidectomy under L A [local anaesthetic] 27.6.60 – He is in good health at present…smokes 1 ounce of cigarette tobacco per day…”
(b) Repatriation Department Medical History Sheet dated 29 April 1976 concerning Mr Cumming, which in part states at page 108 of the T documents:
“Habits: 1.He’s not smoked for 6 years [ie. since about 1970-71]. Previously 60 per day for 12 years [ie. from about 1959 to 1971].
2.Drinks occasionally but when he does so it is heavy drinking…”
(c) Report by Dr M J Chan of Willagee Winthrop Surgery concerning Mr Cumming dated 10 April 2000, which states at page 165 of the T documents:
“To Whom It May Concern
This is to certify that Mr Donald Cumming first saw me on 25.2.93
According to my record he told me in 1993 that he stopped smoking since 1967.”
17. This documented evidence, in summary, clearly leads to the conclusion that Mr Cumming had commenced smoking by 1960. By mid that year he was smoking the equivalent of 30 cigarettes per day (1 ounce of tobacco). This figure, according to the evidence at paragraph 16(b) above, could well have been higher – as much as 60 cigarettes per day – from 1959-60 until he ceased smoking in approximately 1971.
18. The relevant parts of Exhibit R1, in the Tribunal’s opinion are as follows:
“Mr Hawkes (VRB): …in your own words, tell us firstly when you commenced smoking?
Mr Cumming: Well I don’t remember exactly when I commenced to smoke but in the service I remember I spent about 4 years out of my 21 sitting in classrooms and the classrooms were always full of smoke because everybody smoked. And – and I started smoking after one – after one of those classroom things when – when I was either in – as Academic class or Marine Engineering class, something like that. But I generally was sitting in a – in a classroom full of smoke and I was being offered smokes by different blokes and I quite often used to have one and then I started to roll my own.
…
Mr Hawkes: Right. And you can’t remember the year in which you commenced?
Mr Cumming: No I don’t. I think it would have been soon after I joined which was 1955 and I spent the most time in classrooms and about every hour or so you would knock of (sic) for smoko and I think I started smoking around then, when you were doing parade training and stuff like that.
Mr Hawkes: Okay. And how much do you think you were smoking at that time?
Mr Cumming: … I used to smoke cigarettes in those days, tailor mades, and I started – I started to roll my own after a while … But the tailor mades, I think I used to smoke about 20 a day …
Mr Hawkes: Right. And once you started rolling your own, did the amount that you smoked increase?
Mr Cumming: Probably from 3 or 4 a day increase to, probably to – I still smoked around the 20 or 30 I suppose … I remember when I gave up smoking … And that was 8 April 1967.
…
Mr Hawkes [addressing Mrs Cumming]: Can you recall any details about his smoking history; when do you think he started?
Mrs Cumming: Well he didn’t smoke much when I married him … he was 25 [ie. 1960] … And he hasn’t … smoked since 8 April 1967 [Mrs Cumming subsequently indicates that this date, provided by her husband, was incorrect] …”.
19. The evidence from Exhibit R1 – the transcript of proceedings at the VRB hearing on 22 May 2000 – as indicated above, in the Tribunal’s opinion more than anything else shows the difficulties people have recalling with accuracy matters which occurred some 40 years earlier. As examples, did the smoking commenced in 1955 – 56 as Mr Cumming indicated in that evidence and at a level of 3 or 4 cigarettes per day, or was it 20 per day? Alternatively, did it begin in 1960 and was it in fact 30 cigarettes (1 ounce of tobacco) per day? Did it cease in April 1967, or was it 1970 – 71/72? The conflicting evidence and apparent inaccuracies are self-evident, albeit the Tribunal emphasises that it makes no criticism of Mrs Cumming or her late husband in this regard.
20. Despite this, based on the overall material before it, and without at this stage making findings of fact, the Tribunal is of the opinion that the applicant’s hypothesis of Mr Cumming’s smoking habit being a relevant causal factor in his death and of this smoking habit being war-caused, should validly be regarded as a reasonable one in terms of the Act. It is neither fanciful nor contrary to accepted medical opinion. However, in the end result the hypothesis must be subjected to the test of examination against the yet to be stated conclusions and findings of fact by the Tribunal.
Tribunal Conclusions and Findings – Smoking
21. The Tribunal can come to no other reasonable conclusion in this matter than that the evidence in support of the applicant’s claim concerning Mr Cumming’s smoking history is very conflicting indeed in the areas that are of importance in the Tribunal’s consideration. This particularly applies to the more recently authored documentary evidence. This is conflicting within itself and also between sources. For example evidence contained in Exhibit R1 when compared with other statements and declarations made by Mr Cumming, the applicant and others in 2000 and 2001. It is certainly directly in conflict with documented evidence from Mr Cumming’s Service Records and other official material in the T documents, which is contemporaneous evidence regarding smoking in statements made by him to doctors at various times in the navy and since. This is not to say that the late Mr Cumming, the applicant and others have not attempted in more recent times to properly recollect or reconstruct the facts as they applied some 40 years before. The Tribunal acknowledges that they clearly have attempted to do so and their evidence is useful in trying to gain a more complete picture of the smoking history.
22. Nevertheless, from the documented evidence in the records, and taking due account of the facts and conclusions summarised in paragraph 21 above, the Tribunal after careful consideration is unable to discount the apparent accuracy of the contemporaneous factual and compelling evidence regarding the smoking history of Mr Cumming as provided in the official records. Consequently, it finds as follows:
(a)Mr Cumming commenced smoking sometime between 1955 and 1960. From 1960 he developed the habit at a level of between 20 and 60 cigarettes per day. He clearly had reached these levels by 1965. This was all prior to any period of eligible service in terms of the Act.
(b)He maintained that level of smoking, approximately, during the years of 1965 onwards, albeit the level may well have temporarily lessened and increased from time to time – but apparently never exceeded that 60 cigarettes per day figure. This, from his evidence, Mr Cumming was adamant about and so is the applicant.
(c)During that period of 1965 onwards to 1968, Mr Cumming had seven periods at sea, parts of which have been determined as operational service under the Act. This service was not continuous and the operational service periods ranged in duration from 32 days to periods of 11 days at a time. The Tribunal finds insufficient evidence in the material before it to be satisfied that such periods of operational service, either individually or collectively, had a specific or sufficiently relevant effect on his smoking habit. This having been well established at a high level before that service.
(d)The evidence of ceasing smoking is conflicting, however the Tribunal finds it was either in 1967 or in 1970 – 72. Nothing of consequence turns on this aspect, other than to find that Mr Cumming’s eligible defence service – commencing in December 1972 – clearly was not relevant to the smoking habit issue.
23. As a consequence of the above conclusions and findings, the Tribunal is of the opinion that facts necessary to adequately support the applicant’s hypothesis that Mr Cumming’s smoking habit was relevantly related to his operational service are, from the contemporaneous evidence available, disproved beyond reasonable doubt. The claims therefore cannot succeed on the basis of a smoking connection.
Obesity Contention
24. The respondent has raised, quite properly in the Tribunal’s opinion, the possible relationship of Mr Cumming’s obvious overweight condition during his RAN service and that of diabetes, and hence its relevance in the cause of death. The material before the Tribunal validly raises this as a hypothesis.
25. However, the facts in this regard from the T documents are that he was a heavy man at the time of enlistment in 1955. By 1960, prior to the start of his eligible service he was already obese, his weight being over 14 stone. By 1969 it was some 16 stone and on discharge it is recorded that his weight was 248 pounds (ie. over 17 ½ stone) – and that was after he had recently lost 3 stone under an enforced navy medical programme.
26. The Tribunal finds that there is no evidence before it that provides any relevant causal relationship between Mr Cumming’s obvious obesity and his operational or eligible defence service. It is also clear from the Service records that the navy authorities took appropriate action to attempt to reduce this overweight problem. Additionally, no evidence or contention was raised by the applicant in this regard..
27. As a consequence of the above, the Tribunal is satisfied beyond reasonable doubt that the hypothesis raised possibly connecting Mr Cumming’s obesity to his operational service and hence connecting that service with his diabetes condition in this manner is not reasonable. Similarly, it is reasonably satisfied that there is no relevant connection between his obesity and his eligible defence service, and thence his diabetes.
Final Conclusion
28. Based on the reasons as described, the Tribunal is satisfied beyond reasonable doubt that death of the late Mr Cumming was not war-caused. It is also reasonably satisfied that it was not caused, or materially contributed to, by his eligible defence service either.
Decision
29. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal’s decision is to affirm the Veterans’ Review Board’s decision under review of 13 June 2002.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member
Signed: ................(sgd V Wong)..............................
AssociateDate/s of Hearing 8 July 2003
Date of Decision 24 July 2003
Counsel for the Applicant Mr C Hammal
Counsel for the Respondent Mr C Ponnuthurai
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