Doddridge and Repatriation Commission
[2005] AATA 830
•26 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 830
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/97
VETERANS' APPEALS DIVISION ) Re PATRICIA ANN DODDRIDGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr JG Short (Member) Date26 August 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a fresh decision that the veteran’s death was war-caused and consequently, if otherwise qualified for a Widow’s pension, Mrs Patricia Ann Doddridge should be paid that pension with effect from 5 June 2003, that is three months’ before the date of her claim.
JG SHORT
(Signed)
Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that veteran’s death was war-caused – metastatic carcinoma of oesophagus – smoking – decision under review set aside.
Veterans’ Entitlements Act 1986 ss 6, 8, 120(1), 120(3), 120A, 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 188 ALR 756
Elliott v Repatriation Commission (2002) 73 ALD 37Kattenberg v Repatriation Commission [2002] FCA 412
Statement of Principles Instrument No. 115 of 1996
Statement of Principles Instrument No. 11 of 1998
REASONS FOR DECISION
26 August 2005 Mr JG Short (Member) 1. This is an application for review of a decision of the Repatriation Commission (the Commission) made 16 October 2003, which determined that the death of William Charles Doddridge (the veteran) was not war-caused and which consequently refused the claim by Mrs Patricia Ann Doddridge (the applicant) for a Widow’s Pension. The Veterans’ Review Board (VRB) affirmed the decision on 23 February 2004. On 24 March 2004 Mrs Doddridge lodged an appeal with the Administrative Appeals Tribunal.
issues before the tribunal
2. The issue before me is whether the veteran’s death was war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). Both parties accept that the veteran’s death was caused by metastatic carcinoma of the oesophagus and that the date of onset of this condition was the date of diagnosis in 1999. Both parties also accept that the relevant Statements of Principles (SoP) are those contained in SoP Instrument No. 115 of 1996, as amended by Instrument No. 11 of 1998.
3. Mr Jolly’s contention is that a reasonable hypothesis connecting the veteran’s death with his war service can be found through a smoking habit, sufficient to satisfy factors 5(b)(i) or (ii) of Instrument No. 115 of 1996, that is:
“(i)smoking ten to twenty cigarettes per day or the equivalent thereof in other tobacco products, for at least ten years, before the clinical onset of malignant neoplasm of the oesophagus; or
(ii)smoking more than twenty cigarettes per day or the equivalent thereof in other tobacco products, for at least five years, before the clinical onset of malignant neoplasm of the oesophagus;”
4. Mr Jolly said that there was no contention that the veteran’s death, or experience of malignant neoplasm of the oesophagus, was related to service through a pathological rate of alcohol consumption.
background
5. The veteran died on 7 February 2000 at the age of 69 years. He joined the Royal Australian Navy (the Navy) at age 17 years on 6 January 1948, and he served until 5 January 1960. His eligible war service, which is also operational service, was in the Far East Strategic Reserve (FESR) on HMAS Melbourne (the Melbourne) during the following periods:
21-28 September 1956
2-12 October 1956
5-18 April 1957
24 April - 7 May 1957
7-13 June 1957
22-28 June 1957
17 March - 3 April 195823 April - 13 May 1958
6. Mr Jolly asserts that although the veteran began to smoke prior to his first period of operational service on 21 September 1956, he increased his rate of cigarette consumption during and as a result of his periods of operational service.
evidence before the tribunal
7. I will not at this stage make any findings relevant to the issue of whether the veteran’s death was war-caused, but will now narrate a summary of some of the evidence before me.
8. Mrs Doddridge was referred to a document headed “Claimant Report – Cigarette Smoking” found at T5/58. Mrs Doddridge said that she signed this report, but that it was filled in by a Legacy delegate. She said that she gave the delegate the information and watched him fill the form out, and that she checked it before signing it. This document, in answer to a question “When did the veteran first start smoking cigarettes on a regular basis?” reads “He joined the Navy at 17½. He came from a strict family that would not permit smoking. He told me he started smoking during service in the Navy”. In answer to a question “Approximately how many cigarettes per day or, if they were “roll your owns”, how many ounces of tobacco per week did the veteran regularly smoke at that time?”, the answer reads “25-30 per day (he bought a carton each week)” and “A tin of blue capstan to roll your own – he smoked these as well as tailor made”. In answer to the question “Why did the veteran start to smoke cigarettes on a regular basis?” the answer provided is “Due to the nature of service, peer pressure and availability”. At question 6 of the smoking questionnaire signed by Mrs Doddridge on 3 September 2003, she indicated “No” to the question “Did the amount smoked per day ever change since the veteran first started smoking on a regular basis?”.
9. Mrs Doddridge explained to the Tribunal that she did not meet the veteran until 1975, that is approximately 18 years after his last period of eligible service. They did not marry until 1985. Mrs Doddridge said that the information she had provided in the above-mentioned document was derived from statements the veteran had made to her, and from her own observations. Her observations related to the veteran’s smoking habit after 1975. She did not mean to imply that the veteran had told her, or that she had seen him smoke 25-30 cigarettes per day from the time he first joined the Navy at 17½ years of age. The rate recorded as 25-30 cigarettes per day was the rate of consumptions she observed from the date she met him, some 18 years after his last period of operational service.
10. Mr Albert Gray affirmed the accuracy of a statement made by him dated 16 June 2004 [Exhibit A1]. Mr Gray said that he had joined the Navy as a Recruit Telegraphist in 1952. He said that he served on the Melbourne along with the veteran in 1958. Mr Gray said that the veteran was the Flag Petty Officer Telegraphist, and had an arduous and stressful job. He explained that the veteran was directly responsible to the Admiral and Captain, and was on call 24 hours a day while at sea. He explained that tensions were still high in 1958 due to the Malayan emergency. Mr Gray said that he noted that in 1955 (before the first period of eligible service) the veteran was smoking at a rate of 15-20 cigarettes per day. He knew this was the case as the veteran was in the same mess as he at that time. Mr Gray explained that he had no contact with the veteran for the following three years until about February 1958 when he sailed with the veteran on the Melbourne. He said at that time they were not serving out of the same telegraphy office, but he would see the veteran on three to four occasions during breaks on deck. Mr Gray said that at this stage he believed the veteran to have been smoking at a rate of about 30-40 cigarettes per day. Mr Gray said that he was unaware of the rate at which the veteran smoked at the start of the February voyage.
11. Mr J Claridge was called by the applicant. He was referred to a smoking report dated 5 November 2003. Mr Claridge said that he recalls the day he signed this report. He said that the writing was that of a Vietnam Veterans’ Association representative. At Section 1 question 2 the report answers the question “When did the veteran first start smoking cigarettes on a regular basis?” by saying “On joining the Navy 6/1/1948”. The questionnaire also records Mr Claridge as saying that the veteran started to smoke cigarettes on a regular basis “Due to service culture”. The report goes on to list specific periods during which changes to the veteran’s smoking habit were said to have occurred. For example, the report lists 6 January 1948 until 31 March 1948 as a time during which the veteran smoked 5 cigarettes per week. The report eventually lists a period from 26 April 1950 until 20 September 1956 as one during which the veteran smoked 20 cigarettes per day. I note that this was just prior to the first period of eligible service. The report then indicates that from 21 September 1956 until 31 December 1960, the veteran smoked 45 cigarettes per day. The report concludes by indicating that from 1 January 1960 until 7 February 2000 the veteran smoked 30 cigarettes per day. I have noted the inconsistency in the last two periods. Mr Claridge said that he was not sure that the last period was recorded on the form when he signed it. It was put to Mr Claridge in cross-examination that the dates recorded in this document were simply too specific to have come from his memory, and further that Mr Claridge was simply constructing evidence in order to assist his friend’s widow obtain a Widow’s Pension. Mr Claridge agreed that he had not served on the same ship as the veteran during the veteran’s service in the FESR. Mr Claridge explained that in May 1957 he had shared a one day shore leave with the veteran, and noted that the veteran had smoked heavily at that time. Mr Claridge attempted to explain some of the specific dates listed in the smoking questionnaire he had completed, but conceded that he could not say how the specific dates were arrived at. He then said that the Vietnam Veterans’ Association delegate had listed the dates. He agreed that the Vietnam Veterans’ Association delegate had input into the smoking questionnaire which Mr Claridge had signed. He denied that he had constructed evidence to assist his friend’s widow.
12. Mr Peter Evans gave evidence concerning the nature of the veteran’s service. He said he joined the Melbourne on 30 September 1957 and from that date until 24 August 1958 he and the veteran had both served as Petty Officer Telegraphists. Mr Evans indicated that both the veteran and he smoked heavily at the time. He referred to the veteran’s job as an extremely busy and stressful one.
applicant’s submissions
13. Mr Jolly summarised the applicant’s case by suggesting that the veteran’s cancer had been contributed to in a material degree, or aggravated by, a pathological smoking habit which was service related. He suggested that Mr Gray was the more helpful of the witnesses he had called. He referred to Mr Gray’s evidence that the veteran had smoked at a rate of 15-20 cigarettes a day while at training at HMAS Harman in 1955, but that when he met the veteran in February 1958 the veteran was smoking at a rate of about 30-40 cigarettes a day. Mr Jolly suggested that Mr Evans’ evidence was particularly relevant in respect of the reason for any increase in the veteran’s smoking rate, being the stressful nature of service in the FESR. Mr Jolly did not suggest that Mr Claridge’s evidence was reliable in every way. In summary, Mr Jolly suggested that the material before me was such as to raise a reasonable hypothesis connecting the veteran’s periods of operational service with his development of cancer and subsequent death through the agency of cigarette smoking.
respondent’s submissions
14. Mr Crowe said that the evidence provided by Mr Evans and Mrs Doddridge did not point to any increase in the veteran’s rate of smoking during what he described as the relevant period. He referred to Mr Claridge’s evidence as internally inconsistent and contradictory. He said that Mr Gray’s evidence indicated that the veteran had smoked at a rate of 15-20 cigarettes a day in 1955, but had, by March 1958, increased that rate to 30-40 cigarettes a day.
15. Mr Crowe said that the body of evidence as a whole did not point to an increase in the veteran’s rate of smoking, and consequently does not raise a reasonable hypothesis. He said that at its strongest, the applicant’s case was a suggestion of an increase in smoking rate from between 25-30 cigarettes per day to between 30 and 40 cigarettes a day.
legislative background
16. The VE Act provides, in effect, that where a veteran has died from war-caused injury or war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s widow.
17. As the veteran performed operational service, as defined in s 6 of the VE Act, the determination of whether his death was war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections relevantly provide as follows:
“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.”
18. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)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.
Note: See subsection (4) about the application of this section.”
19. Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
consideration
20. In this case it is agreed and I find that the veteran’s death was caused through a pathological smoking habit. A relevant SoP has been provided in Instrument No. 115 of 1996 relating to Malignant Neoplasm of the Oesophagus, as amended by Instrument No. 11 of 1998. I note that where a SoP exists I must apply the test prescribed by s 120A(3) of the VE Act as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“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 ss 196B(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 s 120(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.”
21. I must first have regard to all of the evidence to determine whether that evidence points to an hypothesis connecting the veteran’s death with his operational service. The hypothesis contended by Mr Jolly on behalf of the applicant is that the veteran developed a pathological smoking habit which, although commenced prior to operational service, was contributed to in a material degree or aggravated by that service. In answering the first question posed in Deledio, and I make it clear that I have considered all of the material before me as required by such cases as Bull v Repatriation Commission (2001) 188 ALR 756 and Elliott v Repatriation Commission (2002) 73 ALD 377, I have reached the view that the material does raise such an hypothesis. The material before me includes the evidence of Mrs Doddrige whose signed statement was to the effect that the veteran first commenced smoking on a regular basis in about 1948 at age 17½ years. She explained at the hearing that by the time she met him, the veteran was smoking at least 25 to 30 cigarettes per day and also consumed a tin of Blue Capstan each week.
22. I answered the second question raised in Deledio in the affirmative as the RMA has issued SoPs relating to malignant neoplasm of oesophagus, being Instrument No. 115 of 1996 as mended by Instrument No. 11 of 1998.
23. The third test suggested by Deledio requires that I consider the hypothesis in order to see if it fits or is consistent with the “template” described in the relevant Statements of Principles. I am satisfied that the hypothesis raised by the material is that of a significant increase in smoking during war service. Mr Gray’s evidence suggests a 100 percent increase from 15-20 cigarettes per day in 1955 to 30-40 cigarettes per day in 1958. Mr Claridge’s evidence includes a suggestion of an increase in smoking from 20 per day between April 1950 and September 1956 to 45 per day between September 1956 and December 1960. Generally this suggests a significant increase in the veteran’s smoking habits. The Statements of Principles at clause 5(b)(i) and (ii) only require consumption of 10-20 cigarettes per day for ten years or more than 20 cigarettes per day for at least five years, related to operational service. I am satisfied that the increase in smoking of about 100 percent during and after service does match this template.
24. The fourth test in Deledio requires that I consider all of the evidence, making findings of fact and finally determining whether I am satisfied beyond reasonable doubt that the veteran’s death was not war-caused. I accept Mr Gray’s evidence that the veteran was smoking at 20 cigarettes per day or less in 1955 and at up to 40 cigarettes per day during his last period of operational service in 1958. Whilst I found Mr Claridge’s evidence not entirely reliable, I do accept the tenor of that evidence, to the effect that the veteran’s smoking rate seemed to Mr Claridge to have doubled from prior to operational service to after operational service. I appreciate that the veteran did commence to smoke prior to operational service, however I am not satisfied beyond reasonable doubt that the stressful nature of his service did not lead to an increase in a smoking habit sufficient to satisfy factors 5(b)(i) and 5(b)(ii) of Statements of Principles Instrument No. 115 of 1996 as amended by Instrument No. 11 of 1998.
decision
25. In the light of the above-mentioned findings I am satisfied that the decision under review should be set aside. I substitute a fresh decision that the veteran’s death was war-caused and that consequently, if otherwise qualified for a Widow’s pension, Mrs Patricia Ann Doddridge should be paid that pension with effect from 5 June 2003, that is three months’ before the date of her claim.
I certify that the 25 preceding paragraphs are a
true copy of the reasons for the decision herein of
Mr JG Short (Member)Signed: .....................................................................................
B Bills AssistantDate/s of Hearing 27 and 28 June 2005
Date of Decision 26 August 2005
Counsel for the Applicant Mr Jolly
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe
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