Day and Repatriation Commission - [2000] AATA 741

DECISION AND REASONS FOR DECISION [2000] AATA 741

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/479

VETERANS' APPEALS DIVISION       )
           Re      Veronica DAY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date24 August 2000
PlaceSydney

Decision The Tribunal sets aside the decision of the Repatriation Commission dated 3 September 1997 and in substitution therefor determines that the death of Frank Day was war-caused pursuant to s8 of the Veterans' Entitlements Act 1986 and War Widow's pension is payable to Veronica Day with effect on and from 13 July 1997.

..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERAN'S AFFAIRS – war widow pension – whether death of Veteran war-caused – Veteran died from ischaemic heart disease – Statement of Principles applied – smoking relevant factor in SoP - whether Veteran's smoking habit causally related to service

Veterans' Entitlements Act 1986 – ss8, 120(1), 120(3)
Statement of Principles – Instrument No.140 of 1996, Instrument No.38 of 1999

Repatriation Commission v Keeley [2000] FCA 532
Dixon v Repatriation Commission (1999) 29 AAR 235
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

24 August 2000 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 3 September 1997 which refused a claim for a war widow's pension lodged by Veronica Day ("the Applicant") in respect of the death of her late husband, Frank Day ("the Veteran"). On 25 January 1999, the Veterans' Review Board ("the VRB") affirmed that decision. The Applicant's application to the VRB was lodged out of time, and therefore the earliest effective date for payment of pension to the Applicant is 13 July 1997, being a date not earlier than six months before her application was lodged to the VRB.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant -

Statement of Shirley Margaret Summerson, dated 29 June 1999 (exhibit A);
Statement of William Desmond Mullins, dated 15 November 1999 (exhibit B);
Statement of Alfred Leslie Copping, dated 10 September 1999 (exhibit C).

The Applicant gave oral evidence at the hearing. Mrs Summerson and Mr Mullins gave telephone evidence. Mr Copping and Alexander Hugh Munro also gave oral evidence at the hearing.

The Veteran was born on 15 March 1915. He served in the Australian Army from 18 June 1941 to 15 December 1945 and rendered operational service. The Veteran died on 19 July 1984 at the age of 69 years from a myocardial infarct and coronary atherosclerosis. The clinical notes from the Hornsby and Ku-ring-gai Hospital at the time of his death (T27) recorded that he suffered sudden onset chest pain and acute breathlessness on 19 July 1984 and that prior to his admission he had a three week history of intermittent chest pain associated with shortness of breath, and one day prior to admission he underwent a two hour episode of prolonged chest pain.
legislation
The standard of proof to be applied to the Veteran's operational service is found in ss120(1) and 120(3) of the Act, which requires the Tribunal to determine that the cause of his death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that his death was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting his death with the circumstances of his service.
As the Applicant lodged a claim after 1 June 1994, pursuant to s 120A of the Act, the Tribunal is also required to apply the relevant Statement of Principles in determining this matter. At the time of the hearing on 2 December 1999 it was submitted that the relevant Statement of Principles was Instrument No. 38 of 1999 concerning Ischaemic Heart Disease. Factor 5(e) in Instrument No. 38 of 1999 requires –
(e)       where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)        smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)       smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii)      smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation;

Factor 5(f) in the same Instrument requires –

(f)        where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)        smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii)       smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease;

Since the hearing of this matter on 2 December 1999 the Full Federal Court has made a decision in Repatriation Commission v Keeley [2000] FCA 532, determining in effect that the Applicant has an accrued right to have her application decided by the Tribunal by applying the same Statement of Principles that applied at the time the primary decision was made, which in this case is Instrument No. 140 of 1996. In that Statement of Principles the relevant factor is 5(e) which requires –
(e) smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of ischaemic heart disease and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation;
At least one of the factors in either Statement of Principles must be found by the Tribunal to exist before it can be said that a reasonable hypothesis has been raised connecting the death from ischaemic heart disease with the circumstances of a person's relevant service.
The issue in this matter is whether the Veteran's smoking habit was war-caused. The date of commencement and cessation of his smoking as well as the quantity smoked are facts to be determined by the Tribunal. That evidence will be considered in the context of both Statements of Principles identified above.

evidence
Applicant's documentary and oral testimony

The Applicant was aged 81 at the time of the hearing. She first met the Veteran in 1942, when he was in the Army. Prior to his enlistment in the Army the Veteran was a painter. For the first two months after they met the Applicant had no knowledge that the Veteran smoked. He was then posted to a number of different locations. After he had been away and was then posted to Wollongong later in 1943 she first noticed that he smoked. This was somewhat at odds with her other evidence to the effect that she did not see the Veteran until he was discharged from the Army in December 1945. The Tribunal notes from the service documents that the Veteran was transferred to the Northern Territory on 27 July 1943. The Applicant's evidence was that she did not see the Veteran after he had gone to Darwin. The Applicant recalled that in December 1945 the Veteran "definitely smoked". In cross-examination, the Applicant admitted having no direct knowledge of when the Veteran first started smoking.
The Applicant and the Veteran married in September 1947. She lived in Wollongong for the first year while the Veteran continued to live in Hornsby. He visited her every weekend. She said that when he visited at weekends he was a heavy smoker.
The Applicant said she bought tobacco for the Veteran and sent it to him while he was on service between 1943 and his discharge from the Army. She said she probably sent 4 ozs. tobacco to him every 2 months.
Between the time of his discharge from the Army and until shortly after their marriage the Applicant said she bought 2 ozs. tobacco for him every month. The Applicant also said the Veteran bought his own cigarettes and that he always smoked tailor made cigarettes when they went out. This contradicted her evidence that she used to buy him 3 to 5 packets of cigarettes each week while she was still working, although she did say that he bought the remaining quantity himself. After she ceased work in the late 1960s, she bought 2 ozs. tobacco and a carton of cigarettes for him with her weekly shopping.
The Applicant said the Veteran ceased smoking two years before he died (he died on 19 July 1984) but she did not know why he stopped. She said he did not tell her that he was giving it up, but one day she went to his cupboard and found tobacco there from her previous purchase. In effect the Applicant said that the Veteran gave up smoking "overnight". She could not recall any other time when he tried to give up smoking nor could she recall why he commenced the habit in the first instance.
The Applicant was referred to a Departmental letter dated 7 February 1985 (T7, p20) addressed to her requesting further information regarding the Veteran's smoking habit. The Tribunal notes that there appears to be handwritten notations answering the questions proposed by the Department. Those responses in effect were that the Veteran commenced smoking in 1933, that he smoked approximately 2 ozs. tobacco and 3 packets of cigarettes a week and that he did not smoke for the past two years prior to his death. The Applicant said that the handwriting was not hers, but the answers had been recorded after the writer had spoken with her. She said that the year 1933 was written because she had known the Veteran only since 1942 and her Legatee had advised her that men usually start smoking at the age of 18 years.
A Smoking questionnaire was completed on behalf of the Applicant dated 26 November 1986 (T26 p70). She agreed that she signed the form but she did not complete it herself nor did she read it before she signed it. She said that her Legatee might have provided the information. The responses on the form were to the effect that the Veteran did not smoke before he enlisted, that he commenced smoking during war service, that his smoking became heavier during his service, that he smoked "40" but did not specify the period over which he smoked 40, and that he smoked because of the monotony of service life and because others were also smoking. In response to a question whether the Veteran ever gave up smoking, it was stated "he tried to 12 months prior to death".
The Applicant said that she attended the VRB hearing and was represented by Mr Campbell of Sydney Legacy whom she met for the first time on that day. She could not recall instructing him to the effect that the Veteran commenced smoking on service, that he smoked at least 40 cigarettes a day by 1947 and that he continued to smoke at this rate for most of his life, as reported in the VRB reasons for decision.
The Applicant said that her claim for war widow's pension lodged on 4 August 1997 (T11) was completed by Mr Tomlins, a Legatee. The following statement was written in that claim –
The Veteran commenced smoking during his war service and continued smoking till his death. This resulted in the heart condition that caused his death.

The Applicant said that this was not written by her and the statement was incorrect as the Veteran ceased smoking in 1982.

In a Smoking questionnaire signed by the Applicant and dated 7 July 1997 (T12) it was recorded that she first met the Veteran in 1942, that he commenced smoking in 1942 during service due to "war time stress", he smoked 40 cigarettes a day during service between 1942 and 1946, and after service between 1946 and 1984 he smoked 20/40 cigarettes per day. It was also stated that the Veteran was still smoking about 20 cigarettes per day until the time of his death, that he "smoked consistently during and after his war service" and "He attempted to give up on some occasions but never succeeded". In oral evidence the Applicant said the latter statement was incorrect, as was the statement that after service the Veteran smoked between the years 1982 and 1984. At first she said she was unable to recall who had completed the details in the questionnaire, but in response to the Tribunal's questioning she said that her Legatee, Mr Tomlins had filled out the form in her presence, after having asked her questions about the Veteran's smoking habit.
The Tribunal notes a letter written by the Applicant addressed to Sydney Legacy dated 15 December 1997 (T16) attempting to reconcile the inconsistencies in the documentary evidence prior to that point. In that letter she noted that she met the Veteran in 1942 and that she had no knowledge of what his smoking habits were prior to that time. Furthermore, she stated that the commencement year of 1933, to which reference had been made previously, was on advice of her Legatee that young men started smoking at about the age of 18 years. She also wrote in that letter -
I cannot reconcile the statement made in Dr. Harold Davis' letter of 17th July 1984, that my husband had not smoked for 10 years prior to that date. I purchased my husband's tobacco and cigarettes with my grocery order and am quite sure that my husband finally gave up smoking about two years before his death.
He had tried to give up smoking on several occasions but was not successful till about 1982.
A Statutory Declaration completed by the Applicant on 28 April 1998 (T21) appears to be yet another attempt to reconcile inconsistencies with her past statements. She confirmed that Statutory declaration as true, and added the following -
In statements I have made I have consistently maintained that to my certain knowledge my husband after our marriage smoked at least two ounces of tobacco and three packets of cigarettes per week as this was the quantity I bought with my weekly grocery order. This has been converted by various advisors to so many cigarettes per day and I have relied on their advice when completing smoking questionnaires.
The reason why my husband told his doctor that he had not smoked for 10 years and had never been a heavy smoker was because he believed that to say otherwise would jeopardise his eligibility for treatment and benefits. I wish to make my position quite clear
1        As I did not meet my husband till 1942 I did not know what his pre-enlistment smoking history was like and for the answers given relied on people who claimed to be experts in this field.
2        …
3        I am quite certain that my husband smoked till about two years before his death again on the grounds that I purchased his tobacco and cigarettes weekly.

In oral evidence, the Applicant admitted that her explanation of the doctor's statement was conjecture on her part, as she had never discussed this issue with the Veteran and she said he had made no application for treatment or any benefits with respect to his health.

The Applicant said the last time she spoke with Shirley Summerson, the Veteran's niece, was on the telephone a week before the hearing, which was the first time in 5 years. She said that she did not discuss the Veteran's smoking habits with Mrs Summerson at that time.

Shirley Margaret Summerson

Mrs Summerson is the niece of the Veteran who was her mother's younger brother. In an earlier written statement dated 10 December 1997 (T17) Mrs Summerson said -
My uncle lived with my grandparents, whom we visited every week when I was a teenager. To the best of my knowledge, I cannot recall having seen Frank smoking during in [sic] my teenage years.
My grandmother (Frank's mother) was very religious and a practicing church goer, and I believe she would have probably frowned upon smoking in her home.

A Statutory Declaration made by Mrs Summerson on 25 April 1998 was to the same effect, including that she would have been about 15 years of age in April 1942.

In oral evidence Mrs Summerson recalled seeing the Veteran "quite a lot" before the war, probably at least once a week at one stage. Indeed her written statement dated 29 June 1999 (exhibit A) notes that in 1941, she was living with her family in Pretoria St Hornsby and that the Veteran was "living just down the road near Hornsby Hospital", and that he often visited their house. It was also noted that she visited her grandmother's place once a fortnight and on those occasions she also saw the Veteran. In oral evidence Mrs Summerson said most of those visits were of at least two hours' duration.
Mrs Summerson said in evidence that she could not recall ever seeing the Veteran smoke before service. After the war the Veteran smoked. She noted that her husband, who also smoked, played bowls with the Veteran. She also recalled that when the Veteran would visit her grandmother's house he used to smoke.
William Desmond Mullins
Mr Mullins, now retired, prepared a written statement dated 15 November 1999 (exhibit B). He said he was "a mate of Frank Day from the age of about 15 onwards". They met through playing cricket which they played together at least until 1939. In the cricket season he saw the Veteran about twice every week. Their practice lasted for about an hour each time. They did not mix socially, although he used to see the Veteran in the street while delivering fruit and vegetables. Mr Mullins said the Veteran did not smoke before the war. He noted that they were "pretty close" at the time, and Mr Mullins himself was a non-smoker. He recalled other players smoking at cricket practice. Mr Mullins considered that if the Veteran was a smoker he would have seen him smoke after practice when they used to stay afterwards and talk with the senior cricketers, but in fact he never witnessed the Veteran smoking.
Mr Mullins also enlisted for service, and he was in the same unit but in a different battery to that of the Veteran. Consequently, he did not see the Veteran much during the war. After the war, he said he did not see the Veteran apart from noticing him go to work, and during their involvement in bowling competitions. Mr Mullins said that he and his wife still see the Applicant at bowls or when shopping.
Alfred Leslie Copping
Mr Copping prepared a written statement dated 10 September 1999 (exhibit C). Now retired, Mr Copping first met the Veteran in 1942 at Wollongong whilst serving in the Army in the 43 battery, 103 Tank regiment. During that period he did not see the Veteran. Mr Copping also played cricket for the unit and was the Veteran's batting partner. Mr Copping said he spent time with the Veteran in 1943 in Darwin.
Mr Copping's oral evidence was that he did not see the Veteran smoke in 1942. He specifically recalled the Veteran telling him on one occasion in Darwin while playing cricket just before they were going to bat that he had a "nerve stick" and that he did not smoke before the war. He recalled the Veteran being stressed and nervous at the time. He also said that he saw the Veteran smoking in Darwin prior to that game - he said "he always had a cigarette hanging out of his mouth". In fact the first time Mr Copping saw the Veteran smoke was in Darwin.
Mr Copping said he started smoking in Darwin as soon as he arrived there because of stress from the bombing raids. He later said that he started smoking before he went to Darwin, from 1942 onwards. He said that he saw the Veteran every day and all day because they were in the same camp. He was unable to quantify the amount that the Veteran smoked at that time, although he said that the Veteran smoked more often than he did. Mr Copping said he smoked about 2 ozs. tobacco every 3 days when he was in Darwin and he smoked other cigarettes also. He recalled receiving parcels of cigarettes from the Comfort Fund and Red Cross. He could not recall whether the Veteran received any packages from the Applicant during the war.

Mr Copping did not keep in contact with the Veteran after he was discharged from the Army, nor did he have any contact with him until the time of his death. However he met the Applicant in her barristers' chambers a week before the hearing.
Alexander Hugh Munro
Mr Munro first met the Veteran in early 1942 in the Army, in camp in Wollongong. They were both in the Anti-Tank regiment. Although they did not serve on the same gun, he said that he knew the Veteran very well because they both shared cricketing interests. He said that he played in the same battery team as the Veteran and Mr Copping. He also knew Mr Mullins. Mr Munro said that after the war, the only times he ever saw the Veteran was at the cricket or at the "trots". He did not meet the Applicant until the day of the hearing.
Mr Munro said that the Veteran told him about his smoking habit not long after they had been in the Army. He stated that in the Army "there's people that smoke and there's people that eat them". He said that the Veteran was a "tobacco eater" and that he was "never without a smoke". Mr Munro recalled an occasion in 1942 when the following conversation took place between him and the Veteran –
I said do you need that? He [the Veteran] said yes, I didn't need the so and so things [cigarettes] before I came into the Army but I'm eating them now…I said I never had a smoke before I came into the Army. I hadn't had a drink either. And he said no, I had a drink, but he said I had never had a smoke and we all commented, the whole cricket team that only a couple of us had smoked and they were older fellows.

In cross-examination however, Mr Munro said that the Veteran was not the only one who said he started smoking before the war; all the cricketers made the same comment.

Mr Munro went to Darwin in the same battery as the Veteran. He said the Veteran smoked before the bombing raids in Darwin, but that his habit would have increased after the raids. He could not recall specifically whether the Veteran received any tobacco packages from the Applicant while they were on service, but he noted that "everybody" received packages of that kind containing fruit.
Mr Munro could not remember the Veteran being a carpenter in the Army. He did not see the Veteran when he was discharged from the Army, nor did he keep in touch with the Veteran after the war.
other documentary evidence
A letter from Dr H Davis, consultant physician, addressed to Dr W Cook dated 27 July 1984 in relation to the Veteran stated, inter alia, (T25)-
He normally has no cough and has been a non-smoker for ten years and has never been a heavy smoker.
David Thomas Mason (T19), who the Tribunal understands to be the Veteran's nephew, provided a Statutory Declaration on 19 March 1998 stating that he was unable to recall that his uncle (the Veteran) smoked prior to his enlistment in World War 2, at which time Mr Mason was 14 years of age.
submissions
Applicant
It was acknowledged that there existed inconsistencies in the Applicant's evidence about the commencement and cessation of the Veteran's smoking. However it was submitted that the inconsistencies, at least with respect to her documentary evidence, namely whether the Veteran started smoking in 1933, did not have much significance, because the oral evidence given by her and all the other witnesses was to the contrary. Furthermore, it was submitted that there was no value in the inconsistency about whether the Veteran ceased smoking two years before his death, or that he smoked until death, as the Applicant was adamant in her oral evidence that he ceased two years before his death. Notwithstanding those inconsistencies, it was submitted that the Applicant was certain that she did not recall the Veteran smoking when she first met him in 1942 but that he was smoking in late 1942. It was conceded that the Applicant's credibility was at issue. However it was submitted that her testimony was not deceitful and it corresponded with Mr Mullins' evidence.
With respect to the evidence given by all other witnesses, it was submitted that it had a "ring of truth", notwithstanding the minimal time they had spent with the Veteran.
In relation to the statement from Dr Davis that the Veteran had been a non-smoker for 10 years and had never been a heavy smoker, it was submitted that on balance, that assertion was clearly not true. According to the testimony of several witnesses the Veteran was in fact quite a heavy smoker when he was in Darwin.
Overall, it was submitted that the weight of evidence indicated that the Veteran commenced smoking some time in 1942 on service and remained a smoker until 1982.
Respondent
It was submitted for the Respondent that the credibility and reliability of the witnesses who gave evidence about the Veteran's smoking should be questioned. It was clear that the Applicant signed the relevant forms without reading them. On that basis, her documentary evidence, at least with respect to the commencement date of smoking and the reason why he began, was not reliable and should be given little weight. It was submitted that the Applicant did not know when the Veteran commenced smoking.
The Respondent accepts that the quantity smoked by the Veteran was 2 ozs. tobacco and 3 packets of cigarettes before the Applicant stopped working and 2 ozs. and a carton of cigarettes after she stopped working.
It was submitted that the evidence given by the Applicant in relation to cessation was inconsistent but ultimately it did not have any bearing on whether the Statement of Principles was met.
With respect to Mrs Summerson's evidence, it was submitted that it would have been difficult for someone who was aged 6 years at the time, to recall whether the Veteran smoked. Secondly, because she did not witness his behaviour in a social or work setting, her evidence was incomplete in the context of the Veteran's overall smoking habit. It was also submitted that Mr Mullins' evidence should be given little weight, as he saw the Veteran only two days a week for an hour on each occasion. It was submitted that the Veteran would have been a part of various environments before the war and both Mr Mullins and Mrs Summerson only ever saw him in two very specific contexts.
With respect to Mr Copping's evidence, it was submitted that smoking was a common phenomena during the war, so that it would be hard to imagine how anyone would make such a specific remark about smoking, and then recall such a remark 56 years later. Mr Mullins' evidence that all members of the team stated they commenced smoking before the war was to be considered a generic remark, notwithstanding the fact that the witness heard the Veteran say that himself.
The Respondent considered that all the male witnesses were credible, and was not suggesting the possibility of collusion. However, the reliability of their evidence remained in question.
The Respondent conceded that a reasonable hypothesis was raised in that the facts satisfied the template of the relevant Statement of Principles, namely factor 5. However it was submitted that s120(1) of the Act had not been met. It was submitted that the Tribunal should be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's condition is war caused, because on the evidence before the Tribunal the commencement date and cause of the Veteran's smoking habit was not known. The Respondent relied on the decision of Dixon v Repatriation Commission (1999) 29 AAR 235 where Wilcox J held that the issue of credibility is to be considered in s120(1) and not in s120(3).
consideration of evidence and findings of fact
In Dixon (supra), Wilcox J held that it was erroneous for the Tribunal to consider the truth of the Applicant's evidence at the stage of addressing the reasonableness of a hypothesis, since this should be left to the final stage of its reasoning process in deciding it was satisfied beyond reasonable doubt that a claim which fitted the factors in a relevant Statement of Principles was without justification pursuant to s120(1) of the Act in accordance with the following test established in Repatriation Commission v Deledio (1998) 83 FCR 82, (at 97, 98) –

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

Wilcox J in Dixon stated that in determining step 2 in the Deledio test, the decision maker is not concerned with the accuracy of the material giving rise to the hypothesis, as the decision maker is still operating under s120(3); it is only at step 4 of the test that it is necessary to find facts from the material before it and that the truth of claims is a step to be carried out in the obligation imposed at that stage by s120(1) to decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused.
The hypothesis raised on behalf of the Applicant is that the Veteran commenced smoking on service as a result of his conditions of service, that he smoked from 20 to 40 cigarettes per day since that time, that he continued his smoking habit at that rate until two years before his death in 1984 when he ceased smoking, and that his smoking contributed to his death from myocardial infarction and coronary atherosclerosis.
The Tribunal finds that the Veteran died from myocardial infarction and coronary atherosclerosis on 19 July 1984. Dr Davis (T25) obtained a history from the Veteran on 17 July 1984 of chest pain and shortness of breath about three weeks previously. The Tribunal finds on this evidence that the clinical onset of the Veteran's cardiac disease was mid 1984.
Dr Davis found on examination that the Veteran's lungs had no rhonchi, but the clinical notes from the hospital at the time of his death referred to bilateral basal crepitations. He gave a history to Dr Davis that he normally had no cough. The Veteran said he had been a non-smoker for ten years and had never been a heavy smoker. There was no sign of cardiac failure. Dr Davis conducted respiratory function tests which showed FEV1/VC = 1.6/3.5 = 47%, which the Tribunal notes indicates significant respiratory output for a 69 year old male person. On 18 July 1984 a chest X-ray showed marked pulmonary oedema and cardiomegaly (T27), although Dr Davis considered that the heart was not clinically enlarged on the previous day (T25). This medical evidence must be considered in relation to the evidence of the Applicant about the Veteran's cessation of smoking.
Doing the best one can with the Applicant's evidence and the previous documentary evidence, the Tribunal finds that the Veteran commenced smoking after his enlistment and prior to going to Darwin, and that he did so because of the monotony of service life. The Tribunal also finds, on the evidence of Mr Copping and Mr Munro, that soon after the Veteran went to Darwin where he experienced bombing raids he was a heavy smoker. The Tribunal is satisfied that the Veteran's service in Darwin when he experienced the bombing raids would have been stressful for him, and that this could have contributed to his heavy smoking habit. Thus, the Tribunal finds that the Veteran's smoking habit was war caused.
The Tribunal concludes from the evidence of the Applicant that throughout most of the Veteran's life, and at least until the late 1960's when the Applicant stopped work, both the Applicant and the Veteran were regularly involved in the purchase of tobacco and/or cigarettes which the Veteran smoked. There is no way that the Tribunal can estimate accurately the amount of tobacco products bought by the Veteran, and therefore the total amount smoked by him. The best that can be done is to take that part of the Applicant's evidence that has a reasonable consistency over time and make what probably amounts to a most conservative calculation of the Veteran's smoking based on the Applicant's purchases.
On that basis the Tribunal finds that the Veteran smoked a minimum of 4 ozs. tobacco each two months, provided to him in parcels by the Applicant while he was away on service, during the period July 1943 to December 1945, which the Tribunal calculates to be 60 ozs. During the period from December 1945 to about December 1947 the Applicant purchased on behalf of the Veteran 2 ozs. tobacco each month, and the Tribunal calculates that the Veteran smoked a minimum of 48 ozs. during that period. During the period 1948 to 1968 the Veteran smoked 2 ozs. tobacco and 3 packets cigarettes per week (T21 and Applicant's evidence in chief), which the Tribunal calculates to be 2080 ozs. tobacco and 8.55 pack years of cigarettes. The Tribunal prefers the evidence of Dr Davis that in effect the Veteran ceased smoking 10 years before his fatal heart attack in July 1984, and finds that the Veteran ceased smoking in 1974. Noting the Applicant's evidence that from the time she ceased work in the late 1960s until the Veteran ceased smoking she purchased 2 ozs. tobacco and a carton of cigarettes for him each week with her shopping, the Tribunal calculates that during the period 1968 to 1974 the Veteran smoked 624 ozs. tobacco and 8.55 pack years of cigarettes. On the basis of these calculations the Tribunal finds that the Veteran from 1943 to 1974 smoked a total of 79.8Kg. tobacco or 10.9 pack years and 17.1 pack years of cigarettes, totalling 28 pack years. This calculation takes no account of cigarettes or tobacco purchased by the Veteran or provided to the Veteran while on service from sources other than from the Applicant.
Therefore, the Veteran's smoking habit, as a minimum, fits within factor 5(e)(iii) of Instrument No.38 of 1999. It also fits within factor 5(e) of Instrument No.140 of 1996. Hence, both the latest Statement of Principles and that which applied at the time of the primary decision are met, and therefore the Tribunal has not sought further submissions from the parties on this issue because of the recent Full Court decision in Keeley (supra).
The Tribunal finds that a reasonable hypothesis has been raised pursuant to s120(3) of the Act, that the Veteran had a war-caused smoking habit of the requisite amount, which contributed to his myocardial infarction and death.
The Tribunal notes the Respondent's submission and agrees that the evidence of the Applicant was very unreliable, not only because of her age, but importantly because of her prior inconsistent statements. The Tribunal finds, taking into account the way in which the Applicant gave her oral evidence, that she was quite confused but in addition she was labouring under the added difficulty of having to explain previous documents she had signed and submissions made on her behalf and in her presence at the VRB that she now did not wish to rely on. Overall she did not impress as a witness of truth. The Tribunal, however, has to do the best it can to discern the correct facts from all the evidence before it. The evidence of some of the lay witnesses provided a level of independence and objectivity about the Veteran's smoking. Notwithstanding the poor credibility of the Applicant, the Tribunal cannot be satisfied beyond reasonable doubt that the Veteran's death was not war caused. The decision under review is therefore set aside, and in substitution the Tribunal decides that the Veteran's death was war caused.
Before concluding, I am moved to comment on the state of the evidence in this application. If it is true, as the Applicant stated in her evidence under oath, that those persons from an ex-service organisation who assisted her from time to time were so cavalier in making submissions to the VRB and in completing forms on her behalf as to grossly distort the facts, then it is time that a code of conduct for such persons is provided by ex-service organisations. If, on the other hand, the state of the evidence in this matter reflects carelessness or misrepresentation on the part of the Applicant, then it may be appropriate that the Department of Veterans' Affairs inserts a caution on its questionnaires and pro formas, noting that there could be negative consequences if the information provided is not correct, and that the person signing the form should ensure that what s/he is signing is true.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  2 December 1999
Date of Decision  24 August 2000
Counsel for the Applicant        A.Hill
Solicitor for the Applicant         Dibbs Crowther & Osborne
Counsel for the Respondent    N/A
Solicitor for the Respondent    S.Breuer, Dept. of Veterans' Affairs