Daley and Repatriation Commission

[2002] AATA 831

DECISION AND REASONS FOR DECISION [2002] AATA 831

ADMINISTRATIVE APPEALS TRIBUNAL        Nº N2001/552
VETERANS' APPEALS DIVISION
  Re:         BRIDGET KATHLEEN DALEY
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       Mr P.J. Lindsay, Senior Member
Date:             23 September 2002
Place:            Sydney

Decision:The decision under review is affirmed.

[SGD]Senior Member
CATCHWORDS Veterans' Affairs – whether veteran's ischaemic heart disease war-caused – whether veteran's smoking arose from war service
Veterans' Entitlements Act 1986 – ss.7(1), 9, 13, 120(4), 120B(3), 196B(14)
Repatriation Medical Authority Statement of Principles Instrument No.39 of 1999 concerning Ischaemic Heart Disease
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Keenan, Federal Court, 29 September 1989, G51/1989
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Edwards, Federal Court, 3 September 1993, G250/1993
Re White and Repatriation Commission (AAT 11417, 20 November 1996)

REASONS FOR DECISION

Mr P.J. Lindsay, Senior Member

1. This is an application to review a determination by the Repatriation Commission (the Commission) dated 5 May 2000 that the applicant, Ms Bridget Kathleen Daley, is not entitled to be granted a pension in respect of her ischaemic heart disease.  The Veterans' Review Board (the Board) had affirmed the Commission's decision on 22 February 2001.

2. At the hearing Ms Daley was represented by Mr B. Winship, solicitor, and the Commission by Mr J. Marsh, an advocate with the Department of Veterans' Affairs. Ms Daley gave evidence. There were no other witnesses. The Tribunal had before it the documents lodged under s.37 Administrative Appeals Tribunal Act 1975 and the exhibits tendered at the hearing.
   issue

3. The parties agreed that the only issue for the Tribunal's determination was whether Ms Daley's ischaemic heart disease was causally connected with her eligible war service.  It was common ground between the parties that ischaemic heart disease was connected with her smoking.  The Tribunal therefore had to decide whether Ms Daley's smoking arose out of or was attributable to her war service.
   evidence

4. Ms Daley was born at Coraki in northern New South Wales on 10 October 1922.  Her father was a riverboat captain.  She had three sisters and two brothers.

5. Ms Daley is a former member of the Royal Australian Air Force and served within Australia only.  Her service started on 2 September 1942 when she enrolled in the Women's Auxiliary Australian Air Force and then went into basic training, or rookies as she called it.  On completing her basic training at Sandgate, Ms Daley was posted to the Forward Echelon in Brisbane during November 1942.  Forward Echelon was the Chief of the Air Staff's Brisbane headquarters.  All of the head Air Force officers in Brisbane were based in that office, which was on the sixth floor of a city building.  She worked there as a telephone operator and receptionist, attaining the rank of corporal, until her discharge on demobilisation on 21 March 1946.  Ms Daley said she handled important communications and she was very busy all day.   She operated the switchboard and a scramble phone.  Ms Daley said she would quite often have to ring General MacArthur's headquarters or put their calls through. 

6. When Ms Daley was growing up, her father was the only member of her family who smoked.  Her mother did not smoke. None of her girlfriends smoked.  She said smoking was frowned upon by her parents.  Her brothers started to smoke only in later years.  There was certainly no encouragement at home or within her social group to take up smoking. 

7. On first being posted to the Forward Echelon, there were not any Women's Auxiliary Australian Air Force barracks in Brisbane.  Ms Daley lived with an uncle and aunt in Kalinga, a suburb in Brisbane, for a bit less than twelve months until the barracks were established at Clayfield.  Neither uncle nor aunt smoked, but their son, aged seventeen at the time, was a smoker.  Ms Daley occasionally bought cigarettes from the canteen at her place of work and gave them to him.  She could not recall her cousin offering her a cigarette.

8. In her undated statement (Exhibit A1) Ms Daley said:

   I grew up at Coraki, near Lismore.  When I joined the Airforce I moved to Brisbane to live with my aunt.  Shortly after joining up I was offered a cigarette and developed the habit of smoking.  This was in 1943.  I was soon smoking 20 cigarettes a day.  Everyone else was smoking and it seemed the thing to do.  When I was discharged I was given a chit from the Discharging Officer to get cigarettes from a tobacconist.  I continued to smoke between 20 and 30 cigarettes a day until July 1979.
   …

Ms Daley's evidence at the hearing was that she did not smoke at the time she was first posted to the Forward Echelon.  She said that she had her first cigarette when she accepted one that was offered, probably by one of the girls she worked with, at a dance or other social function.   This happened at some point in 1943 when she was aged 20.  Dances, picnics and similar social functions were common.  Her next cigarette was one that was offered to her, probably the next day after her first, but from then on she began buying her own. Ms Daley said that she bought her cigarettes from the canteen at work and later stopped giving any to her cousin.  She would buy a packet of ten Capstan cigarettes on each of the two days a week that the canteen was open. 

1. Ms Daley also received a couple of cartons of cigarettes a month from an American soldier, a non-smoker, who regularly used to deliver official documents to her office.  In each carton there were ten packets of 20 Chesterfield cigarettes, which she herself would smoke.  Gradually her smoking increased and Ms Daley would buy four packets a week, supplemented by the cartons of American cigarettes.  Ms Daley would smoke at her aunt and uncle's home and she could not recall if they spoke to her about smoking or tried to discourage her from smoking.  She said she was well and truly a smoker by the time she moved into the barracks at Clayfield, towards the end of 1943.  Ms Daley said she did not know if she could have done her job without having smoked.  She said she would have needed something because it was a very stressful, very busy job.

2. When asked why she started to buy her own cigarettes, Ms Daley said that everybody was smoking at the time.  Cigarettes were readily available at the canteen for purchase.  When she was first offered a cigarette, she took it.  It became a habit she could not stop.  It also helped her to cope with her stressful job.  Apart from the odd woman, most of the people in the office were smokers.  The majority of the women were stenographers except for one or two transport drivers.  They were more or less on an equal level of seniority.  They would smoke while working and Ms Daley said her smoking at work helped her to manage.  By the time of her discharge, Ms Daley was smoking twenty cigarettes a day.

3. Upon discharge Ms Daley received a services personnel tobacco ration that entitled her to buy a certain number of cigarettes.  At a time when many commodities were in short supply, the chit enabled her to secure a certain number of cigarettes. Ms Daley had to buy extra cigarettes from the tobacconist because she smoked more than her tobacco ration entitlement.  The entitlement was discontinued from about 1949.  Ms Daley continued to smoke until 1979 when her doctor, Dr Carden, advised her to stop as she had been suffering from breathlessness and palpitations.  Ms Daley said she thought she would not have taken up smoking had she not entered service with the Air Force.  She said it was not in her environment to smoke.

4. In cross-examination Ms Daley was asked if she remembered telling the Board why she started smoking.  In her evidence to the Board Ms Daley said "Everybody was smoking and it just seemed the thing to do at that stage.  Mainly have a cigarette, have a cigarette, you know, so I did.  A bit weak-willed. …  It was just the thing. At that stage it just seemed to be the thing to do and most of the girls who I was working with, they were smoking too and if I went out anywhere I was offered a cigarette, so I took it. There didn't seem to be any one reason for taking it up." (Exhibit R5).   When asked by the Board whether something precipitated her starting to smoke, Ms Daley answered "No. … Any cigarettes that I bought at the canteen I used to take to my younger male cousin, I lived with my aunty.  Then all of a sudden he wasn't getting any cigarettes and I was smoking them myself.  But I think it was because everybody else was doing it."  In answer to a question by the Tribunal Ms Daley agreed that she had taken up smoking mainly as a social activity and although it helped her cope, it got to be a habit.  Asked by Mr Marsh whether smoking was common among the general public during the 1940s, Ms Daley answered that it was not uncommon.  Ms Daley said that she had started to buy her own cigarettes before the American serviceman began giving her cartons of Chesterfields.  Although the canteen opened only two days a week, Ms Daley had no difficulty in obtaining cigarettes and she had none of the problems that civilians had in obtaining tailor made cigarettes, as opposed to packets of tobacco.
   submissions

5. Mr Winship submitted that Ms Daley was encouraged to take up smoking by other Air Force personnel.  He referred to the ready availability of cigarettes at the office canteen, her evidence that smoking helped her cope with her busy and stressful occupation, and a work environment in which most of her colleagues smoked.  In Mr Winship's submission, after her discharge the Air Force lent encouragement to her continuing to smoke by providing her with the tobacco ration chit.  Ms Daley, he argued, was given no real opportunity to end her smoking addiction.

6. Mr Marsh submitted that Ms Daley's service provided merely the setting for her commencing to smoke.  The connection between service and her smoking was not causative but temporal.
   consideration and findings

7. Subject to the Act, the Commonwealth is liable to pay pension by way of compensation to a veteran who has become incapacitated from a war-caused injury or war-caused disease: s.13 of the Act.  The circumstances in which a veteran's injury or disease will be taken to be a war-caused injury or war-caused disease are set out in s.9 of the Act.  There was no dispute between the parties that Ms Daley rendered eligible war service (s.7(1)(c)) but not operational service.  Relevantly, s.9(1) provides:

   Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
    …
   (b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
   …

The Commission must have regard to s.120 of the Act, which deals with the standard of proof, when determining a veteran's claim for pension by way of compensation for incapacity from injury or disease.  Since Ms Daley did not have operational service, the Commission must determine to its reasonable satisfaction, matters relating to her claim for pension: s.120(4).

1. In determining whether Ms Daley's ischaemic heart disease was war-caused, s.120B(3) requires the Tribunal to be satisfied that there is material that raises a connection between the disease and service, and a Statement of Principles (SoP) that upholds the contention that the disease is on the balance of probabilities connected with service.  The relevant SoP is Instrument No. 39 of 1999 concerning Ischaemic Heart Disease which states:

   Basis for determining the factors
   3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans or members of the Forces.

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 exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person's relevant service are:
…
(e) where smoking has ceased prior to the clinical onset of ischaemic heart disease,
…

(ii) smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 10 years of cessation;

…

Mr Winship contended that Ms Daley satisfied factor 5(e)(ii) of the SoP.  The Tribunal must be reasonably satisfied that the SoP upholds the contention that Ms Daley's ischaemic heart disease is connected with the circumstances of her service.  Clause 4 of the SoP requires the relevant factor to "be related to any relevant service."  Section 196B(14) of the Act provides that a factor will be related to service if:

(b) it arose out of, or was attributable to, 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
(ii) but for changes in the person's environment consequent upon his or her having rendered that service;

…

1. It was contended for the Commission that the Tribunal ought to affirm the decision under review by finding that there was no relevant connection between Ms Daley's war service and her smoking.  In support of this argument, reliance was placed on the Full Federal Court's judgment in Repatriation Commission v Tuite (1993) 39 FCR 540. Davies J (at 541) discussed the meaning of the expressions "arose out of, or was attributable to" eligible war service in s.9(1)(b) of the Act as follows:

   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. … Under s.9(1)(b), but not under ss.9(1)(d) and 9(2), 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.

There was also reliance on the following passage from Pincus J's judgment in Repatriation Commission v Keenan, Federal Court, 29 September 1989, G51/1989 where his Honour was discussing submissions by the veteran's counsel (at para 16):

Counsel for Mr Keenan suggested in this Court that once it was shown that Mr Keenan started smoking in hospital during the war, the requirement of a causal connection with his circulatory diseases was satisfied.  Smoking tobacco, he said, is notoriously addictive; there can be no difficulty about taking judicial knowledge of that, but nor can one fail to notice that most men of Mr Keenan's generation surely smoked at some stage of their lives, that some people take up smoking for a while and stop completely and that others (including, according to his evidence, Mr Keenan) start, stop for a substantial time and then restart.  It is plainly not the law that an "eligible service" veteran suffering from the circulatory diseases which smoking causes must obtain a pension for them if he can show that he first smoked during the war.

1. On the basis of Ms Daley's uncontradicted evidence, the written evidence tendered at the hearing and the material in the T documents, the Tribunal makes the following findings of fact:

• Ms Daley had her first cigarette in 1943 when she accepted a cigarette offered by a female work colleague at a social function.  Her habit of smoking cigarettes commenced almost immediately thereafter.  She was then was stationed at the Forward Echelon and working in an office job. 

• At the time of her starting to smoke and for the immediately following period while she was a smoker, Ms Daley lived with her uncle and aunt in suburban Brisbane. Once she had started smoking, she would smoke at their home and was a smoker well before moving into barracks.

• Ms Daley took advantage of the ready availability of cigarettes for purchase at the canteen.  Ms Daley smoked at work and at social functions.

• Ms Daley smoked because "everyone else was smoking and it seemed the thing to do" (Exhibit A1).  There was not any one particular reason for her starting to smoke.  She took up smoking mainly as a social activity but it became a habit. Although smoking helped her cope with stress at work, Ms Daley did not commence smoking because of her service.

1. The Tribunal is mindful of the judgment of Lockhart J in Repatriation Commission v Edwards, Federal Court, 3 September 1993, G250/1993 and in particular the following passage (at para. 25):

   Considerable care must be exercised by the Tribunal when considering a case such as the present where the veteran commenced smoking during war service, but was not in a theatre of war.

2. Ms Daley's case should be distinguished from others where, for example, the veteran commenced smoking whilst a prisoner of war (eg. Repatriation Commission v Law (1981) 147 CLR 635) or commenced to smoke due to the boredom of the services job (eg. Edwards case).  In the latter situation, for instance, the veteran may start to smoke because smoking is part of the camp's culture and smoking relieves some of the boredom of camp life.   Ms Daley's situation is different to that of a veteran who was influenced to commence smoking by the circumstances and incidents of camp life and by the other service personnel in the camp (eg. Tuite's case).  It is not a case where the veteran is confined to a camp, separated from family and bored, with little available entertainment (eg. Re White and Repatriation Commission AAT 11417, 20 November 1996).

3. Here, Ms Daley was serving in Brisbane and did not have to live in a camp.  She worked in an important and busy defence services' office in Brisbane, but it was, as she said "a day job … we started at half past 8 and finished at half past 5" (Exhibit R5).  She began to smoke at a social function, albeit by accepting a work mate's offer of a cigarette, and was a confirmed smoker well before moving into barracks.  While Ms Daley's smoking may have helped her cope with the stress of her very busy work in an office where senior Air Force personnel were based, the Tribunal is not satisfied to the requisite standard that her service was a contributing cause to her becoming a smoker.  Service in the Brisbane office was merely the setting for her smoking.  

4. No submissions were made regarding the application of s.9(2) of the Act to this matter; the sub-section relevantly provides:

   For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due 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:
   …
   (b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.

It would need to be established to the decision-maker's reasonable satisfaction that Ms Daley's ischaemic heart disease would not have been contracted but for her service or but for the consequential changes in her environment.  The Tribunal notes Pincus J's observation (at para 30) in Keenan's case that " … the test imposed under s.9(2) seems more difficult to satisfy than does that under s.9(1)(b)".  However, as Ms Daley's service was not a contributing cause to her becoming a smoker, the Tribunal cannot be reasonably satisfied that she meets the test in s.9(2). Therefore the decision under review should be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of 

Signed:         .....................................................................................
  Associate

Date of Hearing  13 May 2002
Date of Decision  23 September 2002

Solicitor for the Applicant  Mr B Winship

Advocate for the Respondent  Mr J Marsh