Dawn McKenzie and Repatriation Commission

Case [2013] AATA 216


[2013] AATA 216

Division Veterans' Appeals Division

File Number(s)

 2010/3682

Re

 Dawn McKenzie

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance

Date 11 April 2013
Place Melbourne

The decision under review, being the decision of the Repatriation Commission made 20 November 2009 rejecting Mrs McKenzie's claim for a pension in accordance with the Veterans' Entitlements Act 1986 (Cth), is affirmed.

.....................[sgd]...............................................

Deputy President J W Constance

CATCHWORDS

VETERANS' AND MILITARY COMPENSATION – widow’s pension – whether death was war-caused –– cardiomyopathy – malignant neoplasm of the oesophagus – whether material raises an hypothesis connecting the death with the circumstances of operational service – smoking and supply of cigarettes to members of the Australian Defence Forces –– decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A

CASES

Dixon v Repatriation Commission [1999] FCA 582

East v Repatriation Commission (1987) 16 FCR 517
Forrester and Repatriation Commission [2012] AATA 846
McKenna v Repatriation Commission (1996) 86 FCR 144

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

  1. Mrs McKenzie is the widow of the late Mr McKenzie who served in the Royal Australian Air Force during the Second World War.  He served in the Philippines.

  2. Mrs McKenzie has applied for a pension under the Veterans’ Entitlements Act 1986 (Cth). Her application has been refused by the Commission and Mrs McKenzie has applied to this Tribunal for a review of that decision.

  3. For the reasons which follow the decision under review will be affirmed.

    MATERIAL BEFORE THE TRIBUNAL

    Mr McKenzie’s service records

  4. Mr McKenzie was a member of the Royal Australian Air Force from 10 July 1942 until 25 January 1946.  He served in the Philippines from 1 August 1945 until 27 October 1945.[1]

    [1] Exhibit RR2 p.1.

    Mrs McKenzie’s evidence

  5. Mr and Mrs McKenzie were married in 1953.  Mrs McKenzie first met Mr McKenzie about one year before their marriage.

  6. Mr McKenzie did not smoke tobacco at any time after he and Mrs McKenzie met.

  7. Mr McKenzie told Mrs McKenzie the following:

    owhen he was serving in the Philippines his duties involved the interception and de-coding of Japanese Army signals;

    ohis duties in the Philippines were stressful; he undertook long shifts which were tedious and he felt keenly the sense of responsibility which these duties imposed upon him;

    ohe began smoking during his service years as he worked in a small group and he felt pressure to smoke;

    otobacco was readily available during his service and he received rations of tobacco;

    othere were long periods during service when he was inactive and felt bored and he would pass the time by smoking;

    oin the Philippines he served not far from where there was enemy contact;

    ohis habit extended for approximately 10 years, from about the time of his enlistment until shortly before [they] met.[2]

    [2]  Exhibit AA1.

  8. Mr McKenzie did not tell Mrs McKenzie how much he smoked.

  9. Mr McKenzie’s treating general practitioner for 30-40…

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Dawn McKenzie and Repatriation Commission [2013] AATA 216
Case
[2013] AATA 216
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CaseChat Overview and Summary

In the case of Dawn McKenzie and Repatriation Commission, the dispute centered on whether the Repatriation Commission was correct in rejecting Mrs McKenzie's claim for a pension under the Veterans' Entitlements Act 1986 (Cth). The central issue was whether Mr McKenzie's oesophageal cancer, which led to his death, was caused by his operational service during World War II. The Federal Court of Australia was tasked with determining whether the Commission's decision was legally sound and if there was sufficient evidence to establish a connection between Mr McKenzie's service and his illness.

The primary legal issues addressed by the court involved interpreting the statutory provisions concerning war-caused injuries or diseases and the standard of proof required for such claims. Specifically, the court examined whether there was a reasonable hypothesis connecting Mr McKenzie's oesophageal cancer with his service, supported by a Statement of Principles, and whether the Commission's decision to reject the claim was supported by the evidence. The court also considered the relevance of Mr McKenzie's smoking habits, which were inconsistently documented, and how this impacted the assessment of the claim.

The court found that there was insufficient evidence to establish a reasonable hypothesis that Mr McKenzie's oesophageal cancer was connected to his war service, given the inconsistencies in the documentation of his smoking habits and the lack of a Statement of Principles upholding such a hypothesis. The court affirmed that the Commission's decision to reject the claim was correct as it was not satisfied beyond reasonable doubt that the cancer was war-caused. The court concluded that the Commission's decision was legally sound and did not err in law or procedure.

The final orders of the court affirmed the decision of the Repatriation Commission made on 20 November 2009, rejecting Mrs McKenzie's claim for a pension in accordance with the Veterans' Entitlements Act 1986 (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In a report dated 18 February 2011 Professor Harper stated that he was uncertain as to whether oesophageal cancer contributed to Mr McKenzie’s death.[15]LEGISLATIVE BACKGROUND[15] Exhibit RR4.War-caused injury Section 9 of the Act sets out the circumstances in which an injury is taken to be “war‑caused”. The relevant parts of that section are:9 War‑caused injuries or diseases(1)Subject to this section and section 9A, 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:(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(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.Standard of proof Section 120 relevantly provides: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.…(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b)the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.Reasonable hypothesis and a Statement of Principles Subsection 120A(3) provides: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.APPLYING THE LAW

Evidence

Evidence Before The Court

Mrs McKenzie also gave evidence in this matter on 3 November 2011. On that occasion she said that she did not know how many cigarettes per day were smoked by Mr McKenzie.[3] She said that she believed Mr McKenzie had been a moderate smoker and that by moderate she meant a consumption of 10-15 cigarettes per day.[4][3] Exhibit AA11 p.24. [4] Exhibit AA11 p.28.Ms McKenzie’s evidence Ms McKenzie is the daughter of Mr and Mrs McKenzie. She was born in 1963. Ms McKenzie recalls that when she was about 10 years old she had a conversation with her father during which she asked him if he had ever smoked and he replied that he was a keen smoker and that he smoked anything he could get [his] hands on.[5] She also recalls her father telling her that he found smoking inconvenient whilst at work and that he smoked a lot.[6][5] Transcript 11.2.13.[6] Transcript 11.2.13.Extracts from letters from Mr McKenzie to his family while on operational service[7][7] Exhibit AA10. While overseas Mr McKenzie wrote:Cigarettes are for sale on board for 3/- per carton of 200, which of course is less duty, which boosts up prices many times ashore. On 28 June 1945 Mr McKenzie wrote:We are get [sic] 600 cigarettes for a pound very shortly. Not bad eh! On 24 July 1945 he wrote:All along the railway line the local kids + grown ups crowded around the train trying to exchange Jap invasion money for cigarettes which by the way are worth a peso a packet (3/1) of twenty to sell to the natives. On 5 August 1945 he wrote:As this is still supposed to be an operational area , we receive a free issue of American cigarettes – a packet of twenty a day …… We got our “comforts issue” as they call it tonight. It consisted of five packets of yank Raleigh cigarettes & five boxes of matches. We have an issue every five days & so are allowed twenty cigarettes per day. On 9 August 1945 he wrote:I also bought a pipe at the Yank canteen for three shillings. … On 17 August 1945 he wrote:… I still have my pipe & even went so far as to buy some cleaners for it tonight, because two chaps moved out of the tent as a protest against the high scent of the rattling thing. (It wasn’t quite as bad as that but I still have it anyway). On 17 September 1945 he wrote:I had to go to Manilla the other day to pick up our ration of smokes …References to Mr McKenzie’s smoking habit in South West Health Care clinical notes[8][8] Exhibit AA7. Date Reference to smoking Page number29/10/80 Non-smoker 44405/03/96 No 40203/11/99 Non-smoker for 50 years 17621/05/04 Former 60 years ago 34601/12/04? No 13602/01/05 No 29202/01/05 Former 297, 29516/02/09 Ever? Yes. Stopped? 60 years ago 27426/04/09 Never 24027/04/09 Ever? Yes. Stopped? 1950 24706/07/09 Former 60 years ago 211, 209References to Mr McKenzie’s smoking habit in Epworth Health care clinical notes[9][9] Exhibit AA5. Date Reference to smoking Page number09/02/99 No 12919/10/99 No 5724/05/00 No 3131/03/03 Past 50 years ago 13References to Mr McKenzie’s smoking habit in Dr Menzies’ clinical notes[10][10] Exhibit AA8.

Decision

Reasons for decision

By reason of my determination set out in the preceding paragraph I do not need to decide this issue. However, had the hypothesis raised fitted within the template of the Statement of Principles I would not have been satisfied beyond a reasonable doubt that Mr McKenzie’s death was not war-caused.CONCLUSION The decision under review, being the decision of the Repatriation Commission made 20 November 2009 rejecting Mrs McKenzie’s claim for a pension in accordance with the Veterans’ Entitlements Act 1986 (Cth), will be affirmed.

Ratio Decidendi

Legal Principle Established

Ms McKenzie recalls that when she was about 10 years old she had a conversation with her father during which she asked him if he had ever smoked and he replied that he was a keen smoker and that he smoked anything he could get [his] hands on.[5] She also recalls her father telling her that he found smoking inconvenient whilst at work and that he smoked a lot.[6][5] Transcript 11.2.13.[6] Transcript 11.2.13.Extracts from letters from Mr McKenzie to his family while on operational service[7][7] Exhibit AA10. While overseas Mr McKenzie wrote:Cigarettes are for sale on board for 3/- per carton of 200, which of course is less duty, which boosts up prices many times ashore. On 28 June 1945 Mr McKenzie wrote:We are get [sic] 600 cigarettes for a pound very shortly. Not bad eh! On 24 July 1945 he wrote:All along the railway line the local kids + grown ups crowded around the train trying to exchange Jap invasion money for cigarettes which by the way are worth a peso a packet (3/1) of twenty to sell to the natives. On 5 August 1945 he wrote:As this is still supposed to be an operational area , we receive a free issue of American cigarettes – a packet of twenty a day …… We got our “comforts issue” as they call it tonight. It consisted of five packets of yank Raleigh cigarettes & five boxes of matches. We have an issue every five days & so are allowed twenty cigarettes per day. On 9 August 1945 he wrote:I also bought a pipe at the Yank canteen for three shillings. … On 17 August 1945 he wrote:… I still have my pipe & even went so far as to buy some cleaners for it tonight, because two chaps moved out of the tent as a protest against the high scent of the rattling thing. (It wasn’t quite as bad as that but I still have it anyway). On 17 September 1945 he wrote:I had to go to Manilla the other day to pick up our ration of smokes …References to Mr McKenzie’s smoking habit in South West Health Care clinical notes[8][8] Exhibit AA7. Date Reference to smoking Page number29/10/80 Non-smoker 44405/03/96 No 40203/11/99 Non-smoker for 50 years 17621/05/04 Former 60 years ago 34601/12/04? No 13602/01/05 No 29202/01/05 Former 297, 29516/02/09 Ever? Yes. Stopped? 60 years ago 27426/04/09 Never 24027/04/09 Ever? Yes. Stopped? 1950 24706/07/09 Former 60 years ago 211, 209References to Mr McKenzie’s smoking habit in Epworth Health care clinical notes[9][9] Exhibit AA5. Date Reference to smoking Page number09/02/99 No 12919/10/99 No 5724/05/00 No 3131/03/03 Past 50 years ago 13References to Mr McKenzie’s smoking habit in Dr Menzies’ clinical notes[10][10] Exhibit AA8. On 18 June 2003 Dr Menzies recorded that Mr McKenzie smoked 60 years ago.Report of Dr Lynch, Radiation Oncologist On 1 June 2009 Dr Lynch reported that histopathology carried out in May 2009 revealed Mr McKenzie had moderate to poorly differentiated adenocarcinoma arising in an area of Barrett’s oesophagus … .[11][11] Exhibit AA6 p.4.Report of Dr Ung, Radiology Oncology Registrar In a report dated 25 June 2009[12] Dr Ung noted that Mr McKenzie had completed a course of palliative radiotherapy which commenced on 1 June 2009 and was completed on 22 June 2009.[12] Exhibit AA6 p.5.Report of Dr Collins, Consultant Forensic Pathologist