Faith Duffell and Repatriation Commission
[2015] AATA 102
•25 February 2015
[2015] AATA 102
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2414
Re
Faith Duffell
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member N Isenberg
Date 25 February 2015 Place Sydney In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal:
1. Sets aside the decision of the Veterans’ Review Board dated 6 February 2013; and
2. Substitutes a decision that Mr Duffell’s death was war-caused, with effect from 26 May 2011.
..............................[sgd]..........................................
Senior Member N Isenberg
Catchwords
VETERANS’ ENTITLEMENTS – whether veterans’ death was war caused - death from ischaemic heart disease – whether veterans’ death was war caused - whether smoking related to service – consideration of statement of principles – smoking at least one pack year of cigarettes prior to clinical onset – decision set aside and substituted
Legislation
Veterans' Entitlements Act 1986 (Cth) ss 120(4), 120B
Cases
Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711
MilitaryRehabilitation & Compensation Commission v Wall [2005] FCAFC 127
Repatriation Commission v Edwards [1993] FCA 434
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2005) 222 CLR 115Secondary Materials
Repatriation Medical Authority, Statement of Principles concerning Ischaemic Heart Disease, No. 90 of 2007.
REASONS FOR DECISION
Senior Member N Isenberg
25 February 2015
The Applicant, Faith Duffell, seeks a War Widow's Pension in respect of the death of her husband, Thomas Duffell, who passed away on 13 November 2010.
Mr Duffell's certified cause of death was ‘end stage congestive cardiac failure’. There was no dispute that the veteran’s ‘kind of death’ was from Ischaemic Heart Disease (IHD).
I heard the matter on 3 October 2014. At the conclusion of the hearing I directed the parties to file and serve further evidence and submissions about the claimed connection between the veteran's service and his smoking. In response to my direction, Mrs Duffell and her daughter, Carolyn Daniels, made further statements dated 15 and 24 October 2014, respectively; the Respondent did not require them for further cross-examination.
MR DUFFEL’S SERVICE AND THE APPLICANT’S CONTENTION LINKING HIS DEATH TO THAT SERVICE
Mr Duffell served in the Royal Australian Air Force between 27 March 1941 and 28 November 1945 during World War II. As he was posted within Australia only, his service is classified as eligible war service under the Veterans' Entitlements Act 1986 ('the Act'). The relevant standard of proof is consequently that of reasonable satisfaction, that is, on the balance of probabilities, in accordance with s 120(4) of the Act.
The Tribunal is required to apply section 120B of the Act in reaching its decision. This means that the Tribunal is required to decide matters to its reasonable satisfaction in accordance with the relevant Statement of Principles issued by the Repatriation Medical Authority. In this case, the relevant Statement of Principles is No. 90 of 2007 (as amended) relating to IHD.
The Applicant relied on factor 6(h)(ii) of the Statement of Principles which provides:
(h) where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
(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, where ‘pack year’s is defined as:
... a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
Issue
The issue for determination is whether Mr Duffel’s death from IHD was war-caused. This requires determination of the following matters:
(a)whether the veteran’s smoking habit was related to his service;
(b)the date of clinical onset of IHD;
(c)the date by which the veteran ceased smoking;
(d)the quantity of cigarettes the veteran smoked before the clinical onset of IHD.
CONSIDERATION
Was the veteran’s smoking habit related to his service?
The Applicant gave evidence that she first met Mr Duffell in 1942 when she was aged 16. Her recollection was that he was based at Amberley at that time. They met when Mr Duffell was home on leave from the RAAF. Mrs Duffell, while serving in the Australian Women's Land Army, was billeted at his father’s farm. She said that Mr Duffell was a smoker when she first met him. She said he smoked with his mates. The veteran’s service records indicate that he enlisted in the RAAF on 27 March 1941 and was posted to Amberley from 6 August 1942. From Mrs Duffell's evidence and the record of Mr Duffell's postings, I accept that by the time they met, Mr Duffell had been serving in the RAAF for at least 15 months.
I accept on the basis of Mrs Duffell’s evidence that Mr Duffell was an established smoker by the time she met him.
In her post-hearing statement, Mrs Duffell wrote that she does not recall her husband ever having told her when he first started smoking. She recalled him telling her that 'in the RAAF all the boys smoked', and recalled a particular anecdote about his experiences smoking with the other young men in the RAAF while playing cards.
The veteran came from a rural background, having grown up and worked on the family’s fruit farm in the Murrumbidgee Irrigation Area which was a fairly poor rural area at that time.
Mrs Duffell’s daughter, Carolyn Daniels, in her further statement recalled her father, later in life, telling her that he started smoking during wartime. She recalls her father saying 'the blokes all smoked back then' and ‘I had good reason to smoke’, but this latter remark was apparently without elaboration. The Respondent submitted that there is nothing in those words to suggest that this relates to the veteran’s service. The veteran was nearly 17 when World War II commenced, and was 18 when he enlisted 18 months later. In the Respondent’s submission, there is nothing in Ms Daniels’ statement that points specifically to her father having commenced smoking during his service. The evidence merely suggests that he commenced smoking during the War. The other comments, about the widespread nature of smoking, and about the troubled times being the reason to smoke, would be applicable equally, it was submitted by the Respondent, to the period during World War II before and after the veteran’s enlistment.
The Applicant also relied on the veteran’s smoking questionnaire completed on 12 November 2002. It is unclear whether Mr Duffell completed the questionnaire himself or with assistance; it is signed by him and the written responses appear to be in the same handwriting. Ms Daniels mentioned in her evidence that she recalled the veteran was in poor health at the time of completing the questionnaire.
In answer to the question 'When did you first start smoking on a regular basis?’, the response was July 1941. As to 'Why did you start to smoke cigarettes on a regular basis?’, the response was 'To settle pressure and tensions during my service'. The Applicant submitted that Mr Duffell's response to that question is evidence of the connection between service and smoking, although the Applicant’s representative resiled from other aspects of the smoking questionnaire, notably in respect of when Mr Duffell reported he had stopped smoking.
In considering if there was a causal nexus between the veteran's eligible war service and smoking I am mindful of Repatriation Commission v Edwards [1993] FCA 434 wherein Lockhart J stated:
Considerable care must be exercised by the Tribunal when considering a case…where the veteran commenced smoking during war service, but not in a theatre of war.
I was referred to Repatriation Commission v Tuite (1993) 39 FCR 540 (1993) 29 ALD 609 ('Tuite'). The Tribunal found that Mr Tuite, aged 24 at enlistment, had not smoked before going into the army but was a regular smoker by the end of his period in camp, smoking about 20 cigarettes a day (per Burchett and Einfield JJ at [8]). On appeal, the Court noted that under s 9(1)(b) of the VEA 'if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred' (per Davies J at [6]) (my emphasis). The Tribunal had noted that a temporal connection between smoking and service was not enough, but rather there needed to be 'something within the applicant's military service which has caused him to start smoking' (per Burchett and Einfeld JJ at [8]). The Tribunal had accepted that it was 'the circumstances whilst he was in camp that caused him to start to smoke' (Burchett and Einfeld JJ at [8]). The relevant circumstances were 'that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military' and that Mr Tuite 'was in a milieu totally different to that which he had experienced before his call-up’ (Burchett and Einfeld JJ at [8]). The Court found that it was open to the Tribunal to find that 'a consequence... of camp life is a consequence of war service' (Burchett and Einfeld JJ at [9]).
The Applicant also submitted that it was ‘widely known’ that cigarettes for servicemen during World War II were readily available and were provided at subsidised prices or free. No evidence was provided to that effect. In any event, it is likely that, even if I were to accept that cigarettes were provided to those on operational service, it is not known if the same applied to those who were not posted overseas.
It was also submitted on the Applicant’s behalf that the veteran had the reasonable expectation, up until the time he "started having health problems”, that it was likely that he would have gone overseas and gone to fight. This submission, it seemed to me, suggested he may have been apprehensive in the event that he was to be deployed. Mrs Duffell's evidence was that when she first met the veteran in 1942, he knew he would not be posted overseas because of his health problems. However the only significant aspect of the veteran’s health which may have affected deployment as far as his records reveal, is likely to refer to his kidney problems in 1943. Mrs Duffell said that her husband was unable to become a pilot because of poor eyesight, which from his medical records was assessed on enlistment. There was no evidence, however, that this would have prevented his deployment in his capacity in aircraft maintenance.
I was also referred to Roncevich v Repatriation Commission (2005) 222 CLR 115; (2005) 218 ALR 733; (2005) 79 ALJR 1366 ('Roncevich') which, the Applicant submitted, supports the notion that the social and cultural norms of life in the service environment can be sufficient reason for a person to commence a habit. The Applicant submitted at the hearing that it is reasonable for the Tribunal to come to the view that as an 18-year-old going to a completely new environment in the military, the veteran would have been greatly influenced by that environment in establishing his smoking habit.
I was also referred to Military Compensation and Rehabilitation Commission v Wall [2004] FCA 1711 ('Wall') in which the Tribunal had examined the causal link between military service and a smoking habit. On appeal, Hely J agreed that 'military service' extended to 'ancillary duties or matters incidental to the serviceman's employment': at [37]. The Court upheld the Tribunal's reasoning, whereby it had found that taking up smoking on service is 'a well-accepted hazard of service in the military' and had referred to ‘the strains and tensions of army life’: at [21]. The decision was upheld by the Full Court in MilitaryRehabilitation & Compensation Commission v Wall [2005] FCAFC 127.
I accept that, at 18 years of age on enlistment, Mr Duffell may have been susceptible to peer pressure, and that cigarettes may have been readily available. Further, I accept that the military milieu was quite different to farm life. More problematic though, in applying the Tuite test, was whether it could be said that the veteran was apprehensive about his future. There was no evidence about the veteran’s service other than when he was engaged in aircraft maintenance at Amberley. I accept though that he was very young and a long way from home. I accept too that the cultural and social environment of military service is likely to have contributed to Mr Duffell's smoking: per Roncevich and Wall.
Taking this into account, as well as the evidence that Mr Duffell began smoking not only during the war, but during his service “to settle pressure and tensions”, I am satisfied on the balance of probabilities that Mr Duffel’s service contributed to him developing a smoking habit.
When was the clinical onset of IHD?
In 1985 the veteran’s consultant physician, Dr Alford reported to the veteran’s GP, Dr Kirumba, that the veteran had symptoms of angina. In 1992 Dr Alford, by then a cardiologist, referred to the veteran having complained ‘many years ago’ of ‘mild chest discomfort’. In 1999 the veteran had 3 coronary by-passes and, according to hospital notes produced, there was a clear diagnosis of IHD at that time. The Applicant submitted that the date of clinical onset of IHD was somewhere between 1985 and 1999.
While I accept that the veteran had pectoral symptoms as early as 1985, I do not consider there to be sufficient evidence to be reasonably satisfied that there was a clear diagnosis until 1999.
When did the veteran cease smoking?
Evidence was given by Mrs Duffell, and her two daughters Carolyn and Glenda, that the veteran continued to smoke until 2005/2006. They said that although Mr Duffell attempted to give up smoking a number of times over the years, those attempts were short-lived and unsuccessful. Their accounts were that Mr Duffell only completely stopped smoking in 2006 when he had surgery to insert a pacemaker and he became too seriously ill to smoke.
In contrast, according to his Departmental medical file, in 1945 Mr Duffell reported he was smoking little. In January 1971 the veteran told a Departmental Medical Officer that he did not smoke. In December 1985, he told Dr Alford that he was not smoking (Dr Alford’s report dated 5 December 1985).
In the 2002 smoking questionnaire, Mr Duffell was asked when his smoking had ceased permanently. The response was 'Unknown - Sept - (becoming short of breath) 10/1975'. The Applicant submitted that, in view of the evidence of Mrs Duffell and her daughter, the response was plainly incorrect. The Respondent submitted that if I were to accept that the response that he had ceased smoking in 1975 to be incorrect, then the other responses in the smoking questionnaire were similarly unreliable.
It was submitted on the Applicant’s behalf, and the Respondent agreed, that the available evidence suggests that Mr Duffell may have had a tendency, displayed over many years, to be an unreliable communicator on the issue of smoking cessation. In that regard I particularly note Dr Alford's comment in his report of 26 November 2013 that 'This man was always a difficult historian'. Even the Applicant agreed that Mr Duffell was ‘a great rationaliser’.
I accept the clear evidence given by Mrs Duffell and her daughters that the veteran only completely stopped smoking in 2006. Their evidence included anecdotes that estimated the cessation with some accuracy. For example, there was an account of him blowing smoke rings at their 25th wedding anniversary party in 1998. The evidence was that Mr Duffell was aware of the dangers of smoking but would smoke nonetheless and notwithstanding that his wife ‘detested’ smoking. He would smoke outside the house when grandchildren visited in the 1980s and ‘90s and would smoke away from everyone at outdoor events like BBQs. The evidence was that although he was health conscious in other respects he was unable to give up smoking. Mrs Duffell recalled in her evidence that Mr Duffell had frequently been told by the doctor that he should stop smoking. I accept that this may account for his less than forthright account of his cessation in the smoking questionnaire, with Dr Alford, and with a Departmental Medical Officer.
What quantity of cigarettes did the veteran smoke before the clinical onset of IHD?
The Applicant’s evidence was that the veteran smoked a pipe, cigarillos and ordinary cigarettes.
There was little evidence about the quantity of tobacco products the veteran may have smoked. By all accounts, he did not smoke continuously, as he tried to give up a number of times. Mrs Duffell’s evidence however was that, early on he ‘always’ had a pipe. When they first met he smoked roll-your-owns and then cigarillos on special occasions. In later years he smoked tailor-made cigarettes. I consider that the very low threshold of one pack year of cigarettes, namely a total amount equating to twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes, would easily have been reached by Mr Duffell between 1942 and 1999 (the clinical onset of IHD) , even for an intermittent smoker.
CONCLUSION
I have found that the veteran had a war-caused smoking habit, which did not cease until 2006, that is, some years after the clinical onset of IHD. I have found that before the clinical onset of IHD he smoked at least one pack year of cigarettes or the equivalent thereof in other tobacco products.
I am therefore reasonably satisfied that the veteran’s IHD was attributable to his war-caused smoking habit – each element of factor 6(ii) of the SoP for IHD having been met.
DECISION
The decision under review is set aside and a decision substituted that Mr Duffell’s death was war-caused, with effect from 26 May 2011.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Isenberg ...........................[sgd].............................................
Associate
Dated 25 February 2015
Date(s) of hearing 3 October 2014 Date final submissions received 12 December 2014 Advocate for the Applicant P Jones Solicitors for the Applicant E Rice; Legal Aid Advocate for the Respondent A Crowe; Department of Veterans' Affairs
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