Daphne Cross and Repatriation Commission

[2012] AATA 632

[2012] AATA 632

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/2800
Re	Daphne Cross
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton Dr Hadia Haikal-Mukhtar
Date	20 September 2012
Place	Sydney

Decision                  The decision under review is affirmed

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Senior Member A K Britton

CATCHWORDS

VETERANS’ENTITLEMENTS - war widow’s pension – whether death of veteran was war-caused – whether veteran’s smoking habit was war-caused – requires more than a temporal connection – not satisfied to requisite standard

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 13; 8(1); 119 (1); 120(4); 120(6); 120B (3); 196B (3); 196B (14)

CASES

Gilkinson v Repatriation Commission [2011] FCAFC 133

Comcare v Canute [2005] FCAFC 262

Knight v Repatriation Commission [2010] FCA 1134

Re Repatriation Commission v Tuite [1993] FCA 39

Repatriation Commission v Law (1981) 147 CLR 635

SECONDARY MATERIALS

Statement of Principles regarding Chronic Bronchitis and Emphysema (Instrument No. 31 of 2004)

Statement of Principles concerning Atrial Fibrillation (Instrument No. 20 of 2003).

REASONS FOR DECISION

Senior Member A K Britton
Dr Hadia Haikal-Mukhtar

August 2012

1. Mrs Daphne Cross seeks review of the decision made by the Repatriation Commission and affirmed by the Veterans’ Review Board to refuse her claim for a war widow’s pension. The claim was made following the death of her husband, Mr Joseph Cross, in 2009 at the age of 90.

2. It is not in issue that the “kind of death” suffered by Mr Cross was gastrointestinal haemorrhage and that his long term smoking habit contributed significantly to that condition. Nor is there any dispute that Mr Cross smoked heavily over a long period or that smoking is highly addictive. The sole issue to be decided is whether Mr Cross’s smoking habit was “war-caused”.

   STATUTORY FRAMEWORK

3. As Mrs Cross was a dependent of her husband at the time of his death the Commonwealth will be liable to pay to her a pension by way of compensation if his death was “war-caused” (s 13 of the Veterans’ Entitlements Act 1986 (Cth) (the Act)).

4. The death of a veteran shall be taken to be “war-caused” if:

   (b)  the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

   …

   (d)  in the opinion of the Commission, the death of the veteran was 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; (s 8 (1))

5. Mr Cross’s period of service, 1 October 1941 to 5 July 1943, constitutes “eligible service” within the meaning of the Act. Therefore the question of whether his death was “war-caused” must be assessed by applying the standard of proof set out in s 120 (4) of the Act – “reasonable satisfaction”. Neither party bears an onus of proving any matter relevant to that determination (s 120 (6)).

6. To be reasonably satisfied that the death of Mr Cross was war-caused the material must raise “a connection between the disease and some particular service rendered by the person” (s 120B (3) (a)), and a Statement of Principles determined by the Repatriation Medical Authority must uphold the contention that the kind of death is, “on the balance of probabilities, connected with that service” (s 120B (3)).

7. There is no Statement of Principles (SoP) in force in respect of gastrointestinal haemorrhage. However, it is agreed that the following SoPs uphold the contention that Mr Cross’s eligible service was connected with the gastrointestinal haemorrhage that caused his death:

   Statement of Principles regarding Chronic Bronchitis and Emphysema (Instrument No. 31 of 2004); and

   Statement of Principles concerning Atrial Fibrillation (Instrument No. 20 of 2003).

8. By the combined operation of ss196B (3) and 196B (14), “a factor” — in this case smoking at least 10 “pack years” (20 cigarettes per day, or the equivalent over a calendar year) before the clinical onset of bronchitis and emphysema — will be “related to service” rendered by Mr Cross if, among other things:

   ·it arose out of or was attributable to that service;

   ·it was contributed to in a material degree by … that service.

   Material relating to connection between smoking and Mr Cross’s service

9. In March 2006 Mr Cross made a claim under the Act for a disability pension. In a claim form under the question, “How do you believe your service caused, contributed to … this disability?” was written: “during my service I started to smoke and continued until 1995”.

10. Mr Cross also apparently completed a “Claimant Report – Cigarette Smoking” questionnaire in March 2006. It stated that Mr Cross started smoking cigarettes on a regular basis in November 1941 [one month after commencing service] at a rate of two to five cigarettes per day and ceased smoking in 1996. Under the question, “Why did you start to smoke on a regular basis?” was written:

    Being away from home and seeing most troops smoked and drank I looked for something to ease my loneliness. And it appeared normal to follow others.

11. The form recorded that Mr Cross’s smoking habit had changed over time:

Date of Change (month and year)	New amount smoked (cigs per day/ounces per week)	Reason for change
Feb 1942	Increased to 10-15	Getting used to smoking
November 1942	Increased to 25-30	Becoming addicted
June 1943	Increased to 30-40	Addicted
Continued to smoke up to 1996	Addicted

1. After her husband’s death, Mrs Cross completed a “Widows Report – Cigarette Smoking” form. She wrote that her husband had commenced smoking “during service” due to “peer pressure – boredom” and ceased in 1996-1997. In her claim for war widow’s pension dated 23 September 2009, Mrs Cross noted:

   My husband’s death could be attributed to Ischaemic heart disease which was caused by cigarette smoking which to my knowledge started in service … [emphasis added]

2. In his statement of 30 January 2012, Mr Cross’s son, Mr Alwyn Cross stated:

   I believe that my father did not smoke before he entered the army. To the best of my knowledge he commenced smoking on service.

   The men in the army were given cigarettes which were free as part of their rations and I believe this was when he started smoking.

   I think my father also smoked on service as a way of relaxing and relieving stress throughout his time serving in the army. Also, his smoking was influenced due to the fact that the other men on service smoked and he would probably have smoked when in groups with the other men as this is what they did.

3. In his report of 29 March 2012, Associate Professor Richard Haber noted that:

   Notes dated 24 March 2005 from the Emergency Department of Manning Base Hospital referred to the fact that [Mr Cross] smoked 60 pack years. This would make the start of his smoking being therefore, close to 1945. This is therefore a reasonable approximation that he started to smoke during war service as so many other veterans smoked then.

   …

   In the notes of Manning Base Hospital, dated 24 March 2005, Mr Cross admitted to a 60 pack year history of smoking.

   Reliability of claim form and questionnaire  

4. An issue raised in these proceedings was whether Mr Cross had signed and completed the claim and smoking questionnaire lodged in these proceedings. The Commission pointed out that the signature on each differed from earlier examples of Mr Cross’s signature. In addition, each form given was plainly completed in a different hand to the signature.  

5. At the request of the Tribunal, the nominated representative on the subject claim form, Mr Kenneth Singleton, gave evidence in these proceedings. In 2006 Mr Singleton was a case officer with the Foster RSL Sub branch.  Mr Singleton recalled the occasion he met with Mr Cross in March 2006 because he had travelled a considerable distance to the meeting. Mr Singleton recollected Mr Cross being “in a poor way” but said he had no reason to believe that he lacked capacity to provide instructions and a proper history.  He understood that Mr Cross had trouble with his eyes.

6. Mr Singleton said that consistent with his usual practice he read out each question to Mr Cross and wrote down the answers given. He said he sometimes reformulated the answers given by Mr Cross but only as to expression, not as to substance. He testified that he read out each document in full before handing it to Mr Cross for signing. He said he was satisfied that Mr Cross understood and agreed with what he had written in each document.

7. According to Mr Singleton, Mr Cross and a third person, possibly a son, were present at the meeting. He stated that it was possible that they might have assisted Mr Cross with information such as dates but claimed that, consistent with his training and usual practice, he only recorded information he was confident Mr Cross understood and agreed with.

8. Mrs Cross was unable to attend the hearing because of illness and advanced age.

9. On the basis of Mr Singleton’s evidence it was conceded by the Commission that Mr Cross had signed each document. The Commission contended, however, that the evidence as to whether Mr Cross agreed to the contents of each document was, at best, inconclusive.  

10. There is no medical or other evidence to suggest that Mr Cross lacked capacity when the documents were completed. Mr Singleton impressed us as a person who appreciated that in acting as a veteran’s representative, he was obliged to only include in any documents completed on behalf of Mr Cross, material that Mr Cross agreed with and understood. While we appreciate the Commission’s misgivings, having regard to all of the material before us, in particular Mr Singleton’s evidence, we are satisfied on balance that Mr Cross directly provided, or at least understood and agreed with, the information contained in each document.  

    Was Mr Cross’s smoking habit war–caused?

11. There is no issue that a connection has been raised between smoking and a cause of Mr Cross’s death, gastrointestinal haemorrhage. The issue in dispute is whether Mr Cross’s smoking habit arose out of, or was attributable to, or was contributed to in a material degree by, his service. To be “attributable to” service, it is not necessary that Mr Cross’s service be the sole or dominant cause of the development of his smoking habit (Gilkinson v Repatriation Commission [2011] FCAFC 133). The term “material contribution” imposes an evaluative threshold, below which a causal connection between the service and the factor that lead to disease can be disregarded (Comcare v Canute [2005] FCAFC 262 [68] (reversed on appeal where the point did not arise for consideration: 226 CLR 535); Knight v Repatriation Commission [2010] FCA 1134 [95]).

12. We are reasonably satisfied that Mr Cross commenced smoking during service. Mr Cross made that claim in the smoking questionnaire, it was corroborated by his wife, and is consistent with the history given on his admission to Manning Base Hospital in 2005.  However, as has been authoritatively determined, a temporal connection alone is insufficient to establish a causal connection between smoking and service (see for example Re Repatriation Commission v Tuite [1993] FCA 39 [8]; see also Repatriation Commission v Law (1981) 147 CLR 635 [26]).

13. In the smoking questionnaire, Mr Cross claimed that, when he left the Army, he was smoking between 30 to 40 cigarettes a day and had been smoking for 18 months.  He gave as the reason he started to smoke on a regular basis “to ease my loneliness and it appeared normal to follow others”. Mrs Cross gave a slightly different reason “peer pressure – boredom”.  Mr Alwyn Cross thought his father smoked during service: 

    [A]s a way of relaxing and relieving stress throughout his time serving in the army. Also, his smoking was influenced due to the fact that the other men on service smoked.

14. We have before us a number of different explanations for why Mr Cross started to smoke during service: to ease loneliness, out of boredom, and to relax and relieve stress.  The only common thread in the proffered explanations is that “smoking appeared normal” (as stated by Mr Cross) or peer pressure (as understood by his widow and son). The basis of Mrs Cross and Mr Alwyn Cross’s stated understanding is unknown.

15. The questionnaire is the only direct evidence of the reason or reasons Mr Cross smoked during service. The reasons provided in that document lacked particulars. The hearsay accounts given by Mr Cross’s widow and son, while not contradictory, are inconsistent with the reasons he gave. We are unable to explore the basis of this apparent inconsistency because the veteran is deceased, Mrs Cross is incapacitated and, as advised by her counsel, Mr Alwyn Cross is unable to add anything to the information contained in his statement.

16. It may be the account given by Mr Cross is accurate and the respective accounts given by his widow and son are not.  The reverse may also be the case. Alternatively it may be that Mr Cross smoked during service for all of the reasons he, his widow and son proffered, but each failed to properly record their understanding. A further possibility is that any apparent discrepancy is merely a matter of nuance and expression.  The difficulty presented by Mr Cross’s untested and unsupported account, coupled with the at least partially inconsistent accounts given by his relatives, is that it is not possible to identify with any degree of confidence the reason or reasons he began smoking during service. 

17. We are mindful that in deciding whether there was a causal connection between the development of Mr Cross’s smoking habit and service, that we must have regard to the beneficial nature of the Act together with the fact that we are not bound by the rules of evidence and must take into account any difficulties attributable to the effects of the passage of time, including the unavailability of witnesses (ss 119 (1) (f) & 119 (1) (h)). While each of the explanations proffered are plausible, on the material before us, we cannot be reasonably satisfied that the reasons given by Mr Cross or his family members, were in fact the reason he developed a smoking habit during service. In reaching that conclusion we accept that it is possible that there may be no material difference between what Mr Cross and his widow and son intended to convey by using the terms — “[it] appeared normal” and “peer pressure” — to explain why each understood Mr Cross started to smoke. While possible, we could not be satisfied to the requisite standard that this was the case.

18. The Writeway report relied upon by Mrs Cross states that smoking was commonplace among members of the service and cigarettes were readily available.  Those findings are uncontroversial and accepted by us.  The report however does not assist us in identifying the reason or reasons Mr Cross developed a smoking habit during service.  

19. In the absence of better evidence we are unable to be reasonably satisfied that the connection between Mr Cross’s smoking and service was more than temporal in nature. Accordingly we must affirm the decision under review.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr Hadia Haikal-Mukhtar, Member.

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Associate to Senior Member Britton

Dated 20 September 2012

Date(s) of hearing	16 August 2012, 23 August 2012
Counsel for the Applicant	Stephen Feredoes
Solicitors for the Applicant	Andrew Kemp, Kemp and Co Lawyers
Advocate for the Respondent	Adrian Crowe