Dillon and Repatriation Commission

[2008] AATA 276

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 276

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2007/2649
VETERANS' APPEALS DIVISION  )

Re NOLA FRANCES DILLON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:  G. D. Friedman, Senior Member

Date:7 April 2008

Place:Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

VETERANS' AFFAIRS - veterans’ entitlements - widow’s claim - death from cerebrovascular accident - smoking - whether condition war-caused

Veterans' Entitlements Act 1986 ss 8, 119, 120(1), 120(3), 120A

Bull v Repatriation Commission (2001) 188 ALR 756

Bushell v Repatriation Commission (1992) 175 CLR 408

East v Repatriation Commission (1987) 16 FCR 517

Fenner v Repatriation Commission (2005) 218 ALR 122

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

REASONS FOR DECISION

7 April 2008 G. D. Friedman, Senior Member

1.        Nola Dillon is the widow of Graham Francis Dillon (the veteran), who died in 1995 from cerebrovascular accident (stroke).  Mrs Dillon seeks a widow’s pension on the basis of her late husband’s increased smoking during his service with the Royal Australian Navy.

2.        The issue before the Tribunal is whether there is a causal relationship between the veteran’s death and his smoking while on operational service.

WHAT IS THE LEGISLATIVE FRAMEWORK?

3.        The veteran served in the navy from 25 June 1951 to 24 June 1957.  His service in Korea from 3 June 1953 to 12 February 1954 was operational service under the Veterans’ Entitlements Act 1986.

4. Section 8(1) of the Act provides:

8(1)Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

…

5. The standard of proof in claims made in respect of the death of a veteran relating to operational service is specified in s 120(1) of the Act, which provides that the death of a veteran was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that:

…the Commission shall be satisfied… if… 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… death with the circumstances of the particular service rendered by the person. 

Section 120A of the Act provides that, for the purposes of s 120(3) of the Act:

…a hypothesis connecting 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 Statement of Principles (SoP)… that upholds the hypothesis.

6. In cases where s 120A of the Act applies, the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 set out a four‑step process:

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…  

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)….

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…  

4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused… If the Tribunal is so satisfied, the claim must fail.   

7.        In Repatriation Commission v Hancock (2003) 37 AAR 383 at 386 Selway J set out the approach to be followed by the Tribunal:

(a)      First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out…

(b)      Next, the AAT was required to determine on balance of probabilities what ‘kind of death’ Mr Hancock had suffered.  This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.

(c)      If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.

…

In following the approach laid down in Hancock, the Tribunal finds that the pre‑conditions, other than causation, have been made out because Mrs Dillon’s husband was a veteran, the veteran has died and Mrs Dillon is his widow.  In relation to a determination of the kind of death suffered by the veteran (step (b)), the Tribunal notes that the death certificate and medical evidence state that the main cause of death was cerebrovascular accident.

WAS CEREBROVASCULAR ACCIDENT WAR-CAUSED?

8.        On 9 August 1993 after suffering a stroke the veteran completed a claim for disability pension.  In a Smoking Questionnaire (T7 pages 27-28) completed by a Claims Assessor who spoke to the veteran by telephone the veteran stated that he commenced smoking on a regular basis in 1951 when he joined the navy To kill boredom, and smoked 30 cigarettes per day regularly.  He gave up smoking at 30 years of age because he Couldn’t afford it.  In answer to the question: Was there any variation in your rate of consumption? The veteran answered No.  He also answered No to the question: Did the amount you smoked decrease?  

9.        In a written statement dated 18 June 2007 (Exhibit A1) Mrs Dillon said that she met the veteran in 1956 while he was still in the navy and at that time he smoked 20 to 30 cigarettes per day and continued at that rate until he ceased smoking in about 1968 or 1969.  She said that he was a private person and never told her much about his naval service, but she understood from conversations over the years that he was a light smoker when he joined the navy but became a heavy smoker while in Korea.  She said he increased his habit from about 10 cigarettes per day before going to Korea, to 30 per day while in Korea because he was fearful for his life and smoking soothed his nerves.  She stated that the veteran told her that while in Korean waters he was locked in the ammunition magazine of HMAS Tobruk for lengthy periods and he feared that he might die if the ship came under fire.

10.      Mrs Dillon stated that she completed a smoking questionnaire (T10 pages 41-42) on 5 December 1995, shortly after the veteran’s death, in connection with her claim for a war widow’s pension. Melbourne Legacy assisted her in completing the questionnaire and a Legacy officer recorded, on her behalf, that the veteran started smoking on a regular basis in 1951 when he joined the navy, and smoked one packet of 20 cigarettes per day.  He smoked on a regular basis because of peer pressure and the stress of going to sea.  The questionnaire also records that the veteran’s smoking habit changed After getting out of Navy and his smoking Increased to packet & ½ per day (30 cigarettes) for the reason When he was away from home.  She noted that the other change was that the veteran ceased smoking in 1965.

11.      In a further application dated 22 April 1999 Mrs Dillon completed a Claimant Report - Cigarette Smoking on 16 March 1999 (T12 pages 57-58) in which she recorded that the date the veteran started smoking on a regular basis was unknown, and that he smoked a packet of 20 cigarettes every 2 days and the reason given was peer pressure and relieve stress.  In the section that asked for details of changes in the pattern of smoking, Mrs Dillon did not record an increase but answered: Stopped in 1969 due to fears for his health and young family.  In an application dated 5 May 2006 the Claimant Report - Cigarette Smoking dated 24 April 2006 (T16 pages 88-89)  signed by Mrs Dillon records that the veteran first started smoking on a regular basis in 1951 when he joined the navy, and regularly smoked 30 cigarettes per day because of Boredom and availability.  She indicated on the form that the amount smoked per day did not change since the veteran first started smoking on a regular basis.

12.      Mrs Dillon acknowledged that the documents contained inconsistencies.  She said that at all times she answered questions to the best of her recollection and her answers were written by the Legacy person assisting her, but not necessarily in the exact words she had used in answering questions.  Under cross-examination she agreed that in her answers to questions at the Veterans’ Review Board hearing she said that the veteran never spoke much about his naval service… and certainly not when he was overseas.  She agreed that at that hearing she did not make specific reference to the veteran’s increased smoking habit in Korea, but explained that she attempted to respond truthfully to all questions put to her.  She agreed that Exhibit A1 contains the first reference to smoking in Korea, and said that in her earlier applications she had not given the matter much thought.  She emphasised that she had been following the advice of those assisting her, and her current application was the first time she had been asked specifically about her knowledge of the veteran’s smoking habit in Korea.

13.       In a written statement dated 17 August 2007 (Exhibit A2) Mr D. Dillon, youngest child of Mrs Dillon and the veteran, said that the veteran spoke about his service in Korea on a few occasions.  Mr Dillon stated that he recalled one occasion when the veteran reminisced to a former naval friend (now deceased) when they visited Port Fairy in about 1993.  Mr Dillon said:

They talked about being locked down in the munitions depot of their vessel and that this was an emotionally stressful time.  They spoke about tending to smoke more when on active alert in Korea because they were tense and unsure of the dangers and had the opportunity to smoke with few duties to perform.

On other occasions Dad told me that he increased his smoking habit during service in Korea.  He related the increase in his habit to periods when he was locked down on alert.

14.      Under cross-examination Mr Dillon stated that he did not know much about the veteran’s service in the navy.  He agreed that he and the veteran never discussed the veteran‘s smoking habit, and he never saw the veteran smoke.  He also agreed that he did not raise his conversations with the veteran at Port Fairy with Mrs Dillon until about 1997 or 1998 following the veteran’s death.  He explained that he signed Exhibit A2 after a telephone conversation with his mother’s solicitor, and had not seen Exhibit A1 at the time of signing his statement.

15.      In relation to the first step from Deledio, after considering all the material about the veteran’s smoking habit during his service, including the evidence from Mrs Dillon and Mr Dillon, the Tribunal determines that the material points to a hypothesis connecting the death from cerebrovascular accident suffered by the veteran with the circumstances of the particular service rendered by him.  Therefore Mrs Dillon satisfies the first step.

16.      In relation to the second step from Deledio the relevant Statement of Principles (SoP) is No. 51 of 2006 concerning cerebrovascular accident.  Factor 6 provides:

…

(o) for cerebral ischaemia only,

…

(ii) where smoking has ceased before the clinical onset of cerebrovascular accident:

…

(B) having smoked an average of at least twenty cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident;

17.      In relation to the third step from Deledio it is necessary for the hypothesis to be reasonable. For a hypothesis to be reasonable it must be more than a mere possibility, not fanciful, and consistent with the known facts (East v Repatriation Commission (1987) 16 FCR 517). In Bull v Repatriation Commission (2001) 188 ALR 756 Emmett and Allsop JJ said (when referring to East) at 761:

The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable.

The Tribunal has considered all the material, including the evidence from Mrs Dillon and Mr Dillon.  The material points to the hypothesis linking the veteran’s operational service with the death from cerebrovascular accident.  The material and evidence is consistent with the template found in the relevant SoP and therefore the hypothesis is reasonable and Mrs Dillon satisfies the third step.

18.      In relation to the fourth step from Deledio the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s death from cerebrovascular accident was connected with his operational service within the meaning of the Act.  The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.  In Bushell v Repatriation Commission (1992) 175 CLR 408 at 416 the High Court stated:

… if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.

19.      The Tribunal accepts Mrs Dillon’s evidence to the Veterans’ Review Board and to the Tribunal that the veteran was a private person who did not speak much to her about his service in the navy in general, and about his service in Korea in particular.  The Tribunal takes into account that in his application in 1993 the veteran stated that he started smoking in 1951 and smoked 30 cigarettes per day because of boredom and that this did not vary until he ceased smoking in the 1960s.  This direct evidence is the most reliable account of the veteran’s smoking history and is consistent with the Claimant Report - Cigarette Smoking questionnaire completed by Mrs Dillon on 16 March 1999 which did not record an increase since the veteran first started smoking.  It is also consistent with the Claimant Report - Cigarette Smoking dated 24 April 2006, completed by her, recording that the veteran regularly smoked 30 cigarettes per day because of boredom and the availability of cigarettes, and that the amount smoked per day did not change since the veteran first started smoking on a regular basis.

20.      The Tribunal prefers this evidence to the material contained in Exhibit A1, which contradicts Mrs Dillon’s earlier accounts of the veteran’s smoking history.  In her written statement Mrs Dillon acknowledges the inconsistencies but does not provide a satisfactory explanation beyond stating that the veteran indicated during conversations that he increased his smoking habit during service in Korea and that he feared for his life.  Similarly the Tribunal places little weight on Mr Dillon’s evidence, in which he said that he was present during a conversation between the veteran and another person about 15 years ago.  Before signing the statement Mr Dillon had made no mention of any increase in his father’s smoking habit during service, and the Tribunal has serious doubts about the accuracy of his recollections.

21.      Section 119 of the Act requires the Tribunal to take into account the difficulties that may stand in the way of ascertaining any fact, cause or circumstance, such as the passage of time. However, as Mansfield J stated in Fenner v Repatriation Commission (2005) 218 ALR 122 at 130:

… while the directions of s 119(1)(f), (g) and (h) are of relevance to the way in which the tribunal proceeded, they cannot remove from it the responsibility of applying ss 120 and 120A and other relevant provisions of the Act according to the proper terms.

22.      After considering all the material the Tribunal finds that the veteran started smoking on a regular basis after joining the navy and that he smoked about 30 cigarettes per day during service.  This level of smoking remained constant until he ceased smoking in the late 1960s.  Therefore the veteran had a well-established smoking habit at the time of his operational service and did not increase his level of smoking during operational service, so there is no causal connection between his operational service and smoking.  Accordingly the Tribunal is satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the veteran’s death from cerebrovascular accident was connected with his operational service, and Mrs Dillon does not satisfy the fourth step. 

DECISION

23.      The Tribunal affirms the decision under review.

I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd) Mara Putnis

Associate

Date of hearing:  1 April 2008

Date of decision:  7 April 2008

Counsel for the applicant:           Ms J. Bornstein

Solicitor for the applicant:            Williams Winter

Counsel for the respondent:        Mr G. Purcell

Solicitor for the respondent:        Advocacy Section, Department of Veterans’ Affairs