Dyson and Repatriation Commission
[2008] AATA 296
•14 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 296
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3294
VETERANS' APPEALS DIVISION ) Re ANN DYSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, RFD Senior Member
Associate Professor J B Morley RFD, MemberDate14 April 2008
PlaceBrisbane
Decision The decision under review is therefore affirmed.
...................[Sgd]...........................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements –application for disability pension – veteran was a police dog handler with the RAAF – veteran was a smoker prior and during defence service – veteran’s death due to gastric adenocarcinoma – malignant neoplasm of the oesophagus – whether there is a causal link between disease and defence service – no causal link – application denied – decision under review affirmed.
Veterans’ Entitlements Act 1986: s 70, 120
Critch v Repatriation Commission [1996] FCA 881
Roncevich v Repatriation Commission (2001) 66 ALD 105; [2001] FCA 1320
Holthouse v Repatriation Commission (1982) 1 RPD 287
Penhall v Repatriation Commission (1992) 28 ALD 261
Repatriation Commission v Tuite (1993) 29 ALD 609
March v E & M. H Stramare Pty Ltd (1991) 171 CLR 506
Fitzgerald v Penn (1954) 91 CLR 268
Briginshaw v Briginshaw (1938) 60 CLR 336
Rejfek v McElroy (1965) 112 CLR 517
Goward v Commonwealth (1957) 97 CLR 355REASONS FOR DECISION
14 April 2008 Dr K S Levy, Senior Member
Associate Professor J B Morley RFD, MemberINTRODUCTION
1. Mrs Ann Dyson has made claim for pension under the Veterans’ Entitlements Act, consequent upon the death of her husband, Robert Dyson. Mr Dyson had served in the Royal Australian Air Force (RAAF) and applied for a disability pension on 5 December 2005. He died shortly after that date (21 January 2006) and before the matter had been determined by the Repatriation Commission.
2. The veteran’s application dated 5 December 2005 was determined by the Repatriation Commission on 27 January 2006 by declining to uphold the applicant’s claim. That decision was appealed to the Veterans’ Review Board, but was affirmed on 18 April 2007. The applicant, Mrs Dyson, now appeals that decision to the Administrative Appeals Tribunal.
ELIGIBLE DEFENCE SERVICE
3. Mr Dyson enlisted in the RAAF on 1 August 1972. He was discharged on 31 July 1984, having completed 12 years of service. Mr Dyson was a police dog-handler in the RAAF during his service.
4. Whilst in the RAAF, Mr Dyson served a two year posting in Singapore from December 1978 to December 1980. During that period, he was accompanied by Mrs Dyson and his two young children. That overseas service was not regarded as operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
ISSUE FOR DETERMINATION
5. The question for the Tribunal is as follows:
Did the deceased veteran’s condition of gastric adenocarcinoma arise out of, or was it attributable to, the veteran’s defence service in Singapore?
EVIDENCE
6. At the outset, the respondent conceded that the veteran satisfied the diagnosis of malignant neoplasm of the oesophagus. The only issue remaining from the commencement of the hearing was whether the evidence justified the connection of that condition to the veteran’s defence service in the RAAF.
7. There was substantial documentary evidence available to the Tribunal. In addition to the veteran’s service, it is clear that he was born on the 11 September 1948 and died on the 21 January 2006 at the age of 57 years. Much of the evidence which the veteran had included in his application of 5 December 2005, was information which was documented at his instruction or which was subsequently given by the applicant, Mrs Dyson, based on her knowledge.
8. Mrs Dyson provided an additional statement since the hearings of this matter by the Veterans’ Review Board. As that most recent statement includes additional or better particulars not previously included in documents prepared for the original hearing or the appeal to the Veterans’ Review Board, the respondent has maintained that the applicant’s new evidence is “recent invention”. The applicant stated that this information was provided for greater particularity and that she had supplied information based on what advocates had requested of her and at the times it was requested throughout the various proceedings relating to this application.
MEDICAL EVIDENCE
9. The applicant told the Tribunal that she met the veteran in 1970, and that they married in 1976. She says that he smoked "socially" before he enlisted, almost only when they were going out, and only "occasionally" at home. With their change in lifestyle after moving to Singapore he became a "moderate smoker", by about fourfold. He said that this was because of the type of work that he was doing. She used to express her concern about his smoking; and at times he tried to stop smoking. From 1995 he reduced to about 20 cigarettes a day[1].
[1] Exhibit 1, folio 19.
10. The late veteran completed his Claimant Report - Cigarette Smoking[2], on 15 December 2005, when he was ailing six weeks before his death, and signed on his behalf by his wife, the applicant. He stated that he first started smoking on a regular basis when he was on overseas service in Singapore, increasing to 30 cigarettes a day. He gave as his reasons: "away from home, peer pressure, cigarettes were available and cheap, boredom". He stopped smoking permanently in September 2005 after his cancer diagnosis was made.
[2] Exhibit 1, folio 18-19
11. A copy of the veteran's Death Certificate[3] appears in the T-documents, in which Dr A Daveson certified that he died on 21 January 2006 from "gastric adenocarcinoma", present for the past six months.
[3] Exhibit 1, folio 31
12. Dr Peter Grant, Senior Medical Officer Compensation for DVA provided a report[4]. Attached to it were:
- an upper endoscopy report of 19 July 2005 from surgeon Dr Robert Presley, diagnosing "oesophageal malignancy" (emphasis added); and
- a pathology report of 27 July 2005 validated by pathologist Dr Peter Fitzpatrick, diagnosing this malignancy as "poorly differentiated diffusely infiltrating gastric adenocarcinoma" (emphasis added).
[4] Exhibit 5
13. Because Dr Presley's report referred to a malignancy of the oesophagus, whereas Drs Fitzpatrick and Daveson diagnosed the malignancy to be "gastric" (i.e. of the stomach). Dr Grant referred to the following “reasonable satisfaction Statements of Principles":
- for "Malignant Neoplasm of the Oesophagus": Instrument Number 116 of 1996, Instrument Number 12 of 1998 (amendment), and Instrument Number 42 of 2007; and
- for "Malignant Neoplasm of the Stomach": Instrument Number 8 of 2003.
14. In the final paragraph (9) of his report, Dr Grant stated that if the diagnosis of malignant neoplasm of the stomach was preferred, then Factor 5 (a) (i) would apply. He went on to say:"... If a causal nexus is accepted between increased smoking to 30 cigarettes a day when overseas in Singapore in 1978 until 1995 alone equates to 25.5 pack-years on my calculations" [sic].
15. Because the diagnosis made by Drs Fitzpatrick and Daveson was preferred, at the commencement of the hearing, the advocate for the Commission conceded the diagnosis of malignant neoplasm of the stomach.
CONSIDERATION
16. We have considered all of the evidence, (both factual and documentary) and the statutory and common law requirements relevant to this application, and we have assessed it objectively. The question to be answered by the Tribunal must be determined in terms of the statutory law, which relevantly provides:
“s.70 Eligibility for pension under this Part
s.70(1) Where:
(a) the death of a member of the Forces or member of a Peacekeeping Force was defence‑caused; or
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the member--pension by way of compensation to the dependants of the member; or
(d) in the case of the incapacity of the member--pension by way of compensation to the member;in accordance with this Act[5].”
…………
“(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member [6];”…………
[5] Veterans’ Entitlements Act 1986 s 70(1)
[6] Veterans’ Entitlements Act 1986 s 70(5)(a)
120. Standard of Proof
....
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B[7].”
[7] Veterans’ Entitlements Act 1986 s 120(4)
17. The term “disease” is defined in s 5D(1) and means that :
“a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)[8] ;”
[8] Veterans’ Entitlements Act 1986 s 5D(1)(a)
18. The death certificate shows the cause of death as being “Gastric adenocarcinoma”.
19. The assessment of this claim must be viewed in terms of the detailed factors outlined in Statement of Principle (SoP), No. 8 of 2003 – Malignant neoplasm of the stomach. The death certificate shows the cause of death as being “gastric adenocarcinoma”.
20. The applicant submits that the veteran’s death is satisfied by factor 6 (c) of that SoP and was caused by the applicant’s smoking habit. The early concession by the respondent means that is not in dispute. However, the respondent maintains that while the applicant’s death can technically be seen to fit within the factors of the SoP, a link between the condition and the veteran’s defence service is not established. The respondent therefore submits that the claim is not established.
21. In considering the evidence against the SoP criteria, the Tribunal is mindful that s 196B(3) of the Act provides for the Repatriation Medical Authority (RMA) to make SoPs in respect of diseases where there is sound medical scientific evidence which can link conditions to military service. The RMA had earlier made SoP No. 20 of 1994 in relation to this condition and has since updated it with the current SoP No. 8 of 2003.
22. The main issue in this contest is whether the required nexus of causation can be made between the disease and the veteran’s defence service as envisaged by the terms of s 196B of the Act. That service can be taken to be synonymous with the defence service referred to in s 70 of the Act, which requires a demonstration that the death be related to the defence service (s 196B) by showing that it “arose out of, or was attributable to” that service. Viewed in that light, the provisions of s 70(5) can be seen to be effectively the same as the requirement set out in s 196B(14).
FINDINGS OF FACT
23. The Tribunal makes that the following findings of fact:
(i) Mr Dyson died of malignant neoplasm of the oesophagus.
(ii) Mr Dyson’s statements of his smoking patterns have been completed by others, although they were signed on his behalf by Mrs Dyson.
(iii) Mrs Dyson’s questionnaires of detail pertaining to Mr Dyson’s RAAF service and smoking patterns, were completed by advocates and based on questions asked of her and reflecting her responses. These were signed by her as that was what she understood was required.
(iv) Mrs Dyson’s statement dated 20 December 2007 was prepared after receiving advice from advocates as to the further particulars that she was told was required to establish her case.
(v) The Tribunal accepts that Mrs Dyson was a witness of truth.
24. Essentially, we have considered the evidence as a whole. While some inconsistencies are apparent such as the new information provided in Mrs Dyson’s most recent statement, she has explained that she merely followed the advice of advocates and others and answered questions which were put to her. We believe, without reservation, that she did this truthfully and we do not find any evidence of “recent invention”, as submitted by the respondent.
25. The Tribunal finds that the evidence provides a temporal link between the veteran’s service and his death. However, the real question is whether there is also a causative link between the increase in the veteran’s smoking in Singapore and his defence service with the RAAF. In determining whether such causation exists, this is to be satisfied to the standard of “reasonable satisfaction” (s 120(4)).
26. We are conscious also that the defects in the evidence available are due to the passage of time and the unavailability of the veteran to now provide direct evidence. The Tribunal is therefore faced with some limiting factors in assessing some of the evidence. That must be resolved in terms of s 119(1) of the Act, which provides that in determining the claim, the Commission:
“(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities[9]; and
“(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities[10].”
[9] Veterans’ Entitlements Act 1986 s 119 (g)
[10] Veterans’ Entitlements Act 1986 s 119 (h)
27. The applicant’s counsel submitted the Tribunal should apply the most favourable interpretation to SoP No. 8 of 2003 (factor 5(a)(i)). If the Tribunal does not find in favour of the applicant under that SoP, she has a right to have the matter also considered under the former SoP i.e. SoP No. 20 of 1994. We agree with that submission in principle. We note that the diagnosis is not in dispute between the parties, and the Tribunal accepts that that agreement/position of the parties is not inconsistent with the evidence presented.
is “causation” apparent?
28. The applicant’s counsel urged the Tribunal that factors such as “peer group pressure” and “stress” were relevant considerations[11]. We note that the applicant’s cigarette smoking questionnaire of 15 December 2005 (and signed by Mrs Dyson as the veteran’s personal representative) shows that the veteran was a social smoker before serving in Singapore but that he became a more regular smoker whilst on that overseas service. Some of the reasons the veteran thought were relevant were explained by the following description – “away from home, peer pressure, cigarettes were available and cheap. Boredom[12].”
[11] Critch v Repatriation Commission [1996] FCA 881.
[12] Exhibit 1, Folios 18-19.
29. The respondent submitted that in assessing whether the smoking “arose out of, or was attributable to” the veteran’s defence service, the applicant’s reasons which are now submitted[13], were not previously submitted. However, we find that for the reasons mentioned earlier, that this does not reveal “recent invention” of the applicant.
[13] See paragraph 13 of the Statement of Facts and Contentions.
30. The respondent also submitted that the Tribunal should take account of the reasons given by the applicant in her statement for the veteran’s increased stress as shown in paragraph 9 of the applicant’s Statement of Facts and Contentions, and contended that these were more related to the applicant’s feelings rather than to any evidence of the veteran’s stress.
31. The respondent further submitted that notwithstanding the provisions of s 119 of the Act that the Tribunal should have a sympathetic view of the evidence where there are some gaps apparent, it was also emphasised that the Tribunal is obliged to ensure that the ordinary principles of causation are not abrogated in the absence of direct evidence[14]. The respondent submitted that while that decision was subsequently dealt with on appeal in both the Full Court of the Federal Court as well as the High Court of Australia, the finding in the original decision of Roncevich that s 70(5)(d) of the Act does not abrogate ordinary principles of causation, was not a matter that was challenged on appeal.
[14] Roncevich v Repatriation Commission (2001) 66 ALD 105.
32. Turning now to the specific meaning of whether the veteran’s smoking behaviour “arose out of or was attributable to” his RAAF service, it will not have a relevant connection if it can be seen to be more concerned with the member’s personal rather than his professional life[15]. That causal relationship must look further than just the temporal connection and consider the impact on the serviceman’s behaviour in his off-duty hours[16]
[15] Holthouse v Repatriation Commission (1982) 1 RPD 287.
[16] Penhall v Repatriation Commission (1992) 28 ALD 261.
33. It is noted that the applicant’s husband had mentioned “stress and peer group pressure”. In Critch v Repatriation Commission[17], it was held that “peer group pressure” and “stress” were relevant considerations, particularly where it was the kind of stress which was inherent or likely to arise during military service and which would lead to smoking. Unlike the present case, that case was one which involved the veteran during war service. So it was also in Repatriation Commission v Tuite[18]. In the latter case, consideration was given to whether boredom could be a contributing factor. It was held that in the circumstances of that case, camp life clearly was capable of being a causative factor as the applicant there was undertaking operational service but he had also been injured during operations. The court said:
“….the boredom of life in camp clearly emerges from the respondent’s account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking and upon his continuance…..”[19]
[17] [1996] FCA 881
[18] (1993) 29 ALD 609
[19] per Burchett and Einfeld JJ at page 614.
34. Causation however, is an issue of fact which is determined by the application of ordinary common sense[20]. A judgment about a common sense view of causation in this case is also related to the standard of proof. The Tribunal must be convinced to “its reasonable satisfaction” whether or not the facts reveal that the veteran’s death was due to smoking and which was accelerated because of his overseas defence service in Singapore. That will be influenced by the weight of evidence and has been described in the landmark matrimonial case by Dixon J in Briginshaw v Briginshaw[21] where the standard of proof was said to be:
“…. The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found…..it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences….”.
[20] Davies J quoting March v E and M. H Stramare Pty Ltd (1991) 171 CLR 506 at 515: Fitzgerald v Penn (1954) 91 CLR 268 at 277) Cited in Tuite (supra) at page 611-612
[21] (1938) 60 CLR 336 at 361-362
35. There must therefore be clear or convincing evidence. Even s 119 of the Act requires the Tribunal to act according to “substantial justice and the substantial merits of the case” (s 119 (1)(g)), but taking account of any difficulties in the evidence must be done “without limiting the generality” of those provisions.
36. Those considerations are also relevant in assessing the “environmental factors” submitted by the applicant, which must arguably be connected logically with the veteran’s defence service. That is, his service undertaking security duties as a dog handler, where he was required to do 10 hour shifts in Singapore guarding the RAAF base, sometimes at night and sometimes alone, must be such as to raise a connection with his increased smoking habit. This is also in the context of his service not being operational service and no specific traumatic incident having being raised. There is certainly the “boredom” factor which has been raised in the veteran’s application. We are also conscious however, that there may be a psychological effect of boredom and his patrolling duties on the RAAF Base on his smoking habit. In the final analysis, it must depend on the Tribunal’s view of whether the consequences of this service would be likely to have caused the veteran’s increased smoking and as a consequence, malignant neoplasm of the oesophagus, and as a further consequence, his death. The standard required is that on the balance of probabilities or in other words, that its existence is more probable than not, or that the Tribunal must be satisfied that it is established by a preponderance of probability[22].
[22] (Rejfek v McElroy (1965) 112 CLR 517).
37. Our conclusion must also be based on the evidence. We accept the temporal connection and note that the authorities establish a stronger case for a standard of proof where there is operational service. The present case does not involve operational service and there are no overt stressors raised, other than the veterans’ duties as a dog handler. It undoubtedly could raise a psychological effect such as stress in a person undertaking those duties, at least temporarily. In circumstances where there were significant risks, stress would be more likely to be raised in the longer term in some individuals.
38. Factors on the contrary are that there is also evidence of the applicant having more money available when in Singapore. We accept the applicant’s condition at death is possibly related to defence service. The question arises as to whether there is an incident or the duties carried out in Singapore in 1978 to 1980 in non-operational service, would be likely to have caused increased stress. Also relevant is whether the availability of additional money and cigarettes has in fact triggered increased addiction to nicotine which had not been aggravated by defence service. As was observed by the High Court of Australia in Goward v Commonwealth[23], the location of a camp or military setting reveals “no more than antecedent conditions” and are not “operative causes” of a veteran’s condition (per Dixon CJ).
[23] (1957) 97 CLR 355 at 365
39. On balance, the evidence is no more than equivocal. We are obliged to be satisfied to the appropriate standard without being overly pedantic because of the lack of official records to assist. We must also decide it with respect to “substantial justice” and the “substantial merits” of the case (s 119 (1)(g)). Based on the evidence, there must be a determination based on common sense. That is, the facts must be established to be “more probable than not”[24]. One must distinguish between “probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other”[25]. We have concluded that, even taking account of the possible influencing factors, the evidence is equivocal. A causal connection is possible but in our view, it is not sufficiently robust to satisfy the High Court formulation which requires the Tribunal to be satisfied that the causal connection is ‘more probable than not’. In terms of the current SoP, we would therefore find that the application cannot be supported.
[24] (Rejfek v McElroy (supra).
[25] see Repatriation Commission v Smith (1987) 74 ALR 537 at 547.
40. In view of that conclusion, we re-visited the application in terms of the previous SoP No. 20 of 1994 to assess whether the applicant might succeed under that earlier SoP. As smoking was not mentioned as a factor in that standard we are of the view that we cannot form any more sympathetic conclusion under that SoP than we have to the current SoP.
41. In the circumstances, we decline the application.
42. The decision under review is therefore affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD Senior Member and Associate Professor Dr JB Morley, Member.
Signed: .....................................................................................
E. Young, Research AssociateDate/s of Hearing 11 March 2008
Date of Decision 14 April 2008
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Sciaccas Lawyers
Solicitor for the Respondent Ms F Dempsey, Australian Government Solicitor
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