Falconer and Repatriation Commission

[2008] AATA 418

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 418

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 200600994
VETERANS' APPEALS DIVISION  )

Re MARGARET MARY FALCONER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:  G. D. Friedman, Senior Member

Date:21 May 2008

Place:Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

VETERANS' AFFAIRS - veterans’ entitlements - widow’s claim - chronic obstructive airways disease - whether a contributor to death - smoking - whether condition war-caused

Veterans' Entitlements Act 1986 ss 8(1)(b), 119, 120(4)

Fenner v Repatriation Commission (2005) 218 ALR 122

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Tuite (1993) 39 FCR 540

REASONS FOR DECISION

21 May 2008 G. D. Friedman, Senior Member

1.        Margaret Falconer is the widow of William Fulton Falconer (the veteran), who died in 1995.  Mrs Falconer seeks a widow’s pension on the basis of her late husband’s increased smoking during his service with the Australian Army during World War 2.

2.        The issues before the Tribunal are whether chronic obstructive airways disease contributed to the veteran’s death and, if so, whether this condition was related to his army service through smoking.

WHAT IS THE LEGISLATIVE FRAMEWORK?

3.        The veteran served in the army from 20 August 1942 to 17 December 1945.   His service in Victoria and Queensland was eligible 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:

…

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

5.        In Repatriation Commission v Tuite (1993) 39 FCR 540 the Full Federal Court held at 545:

The boredom of camp life 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 in the habit until the inevitable onset of nicotine addiction.

Davies J observed at 542:

If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life.  The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.

6.        In Repatriation Commission v Law (1980) 31 ALR 140 the Full Federal Court held at 150:

The Act does not say death which is “caused by” or “results from” his war service – phrases which might connote a proximate causal relationship.  The expression “arisen out of” is satisfied if some less proximate causal relationship is established.  Of course, a suggested relationship which is fanciful is not sufficient: and a suggested relationship may be so tenuous as to preclude its consideration as answering the description of “arising out of”.

The Court said at 151:

It seems clear that the expression “attributable to” in each case involves an element of causation.  The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause.

7.Section 120(4) of the Act requires the Tribunal to decide whether the veteran’s conditions were defence-caused to the Tribunal’s reasonable satisfaction. The Tribunal is also required to apply a Statement of Principles (SoP) for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP.

8.        The relevant SoP is No. 31 of 2004 concerning chronic bronchitis and emphysema.  Factor 5(a) provides:

(a)smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;

9.        Although ischaemic heart disease was found to be one of the causes of death, there was no dispute that this condition was not defence-caused.

DID CHRONIC OBSTRUCTIVE AIRWAYS DISEASE CONTRIBUTE TO THE VETERAN’S DEATH?

10.      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.

…

In following the approach laid down in Hancock, the Tribunal finds that the pre‑conditions, other than causation, have been made out because Mrs Falconer’s husband was a veteran, the veteran has died and Mrs Falconer is his widow.

11.      In relation to a determination of the kind of death suffered by the veteran the Tribunal notes that the death certificate lists the causes of death as:

coronary occlusion - minutes

coronary atherosclerosis -  years

generalised atherosclerosis - years

recent prostatectomy 17/3/95; and

obstructive airways disease - years

12.      In a written statement dated 17 October 2006 (Exhibit A1) Mrs Falconer said that shortly before his death the veteran underwent prostate surgery, and that he was discharged from hospital a couple of days later.  She said that his condition deteriorated at home and his breathing worsened.  He suffered a number of bouts of bronchitis and died at home, three days after leaving hospital.  Mrs Falconer stated that she always believed that his major problem was his lung complaint, and she did  not know about his heart condition until she read the death certificate.

13.      In oral evidence Mrs Falconer stated that the veteran complained of feeling unwell when he was discharged from hospital after the surgery.  She said that he had difficulty breathing and was unable to eat.  He was coughing but told her he did not have a head cold.  He had difficulties with the inhaler that he had used for many years for relief from emphysema.  Mrs Falconer told the Tribunal that the veteran was sitting in a chair in the lounge room where the room was warm and the weather was fine on an Autumn day, but he said that he was feeling cold and was shaking.  She had covered his legs with a blanket.

14.      In an undated written statement (Exhibit A3) Mrs B. Little, Mrs Falconer’s older daughter, said that she was present when the veteran died.  She stated that when the veteran told her his inhaler was not working she took it to the pharmacist, who found it to be working.  Mrs Little concluded that the veteran did not have enough strength to use it on that day.  She stated that he was having difficulty walking because of a lack of breath.  Shortly before his death Mrs Little called his general practitioner, who arrived soon afterwards and found that the veteran‘s blood pressure was falling.  An ambulance was called but the veteran collapsed and could not be resuscitated.  He died at about 1am.  In oral evidence Mrs Little stated that during his final day the veteran’s condition deteriorated but she did not observe any coughing.

15.      Mrs A. Pratt, Mrs Falconer’s younger daughter, told the Tribunal that she attended her parent’s home regularly after the veteran was discharged from hospital.  She said that she noticed that he was coughing and cleared his throat regularly.  He always had a handkerchief nearby.  Mrs Pratt stated that the veteran felt clammy when she touched him and his forehead was damp.

16.      In a report dated 14 August 2007 (Exhibit A5) Dr R. Byron Collins, forensic pathologist, stated that he had examined relevant documents including Mrs Little’s account of events (Exhibit A3) and concluded:

Whilst it would have to be conceded that the primary cause of death could have been related to complications of ischaemic heart disease, it could not be reasonably excluded, in my view, that chronic obstructive airways disease/asthma either considerably hastened or was, even, the major factor in the late Mr Falconer’s demise.

17.      In oral evidence Dr Byron Collins stated that on the available material, the veteran’s death was caused by cardiac failure or a chest infection.  However the symptoms described by Mrs Little and Mrs Pratt of the veteran appearing to be sweating; complaining of feeling cold; and of shivering, suggest that he had a chest infection, which was either the cause of death or a contributory factor with ischaemic heart disease.

18.      Professor J. Cade, Director of Intensive Care, The Royal Melbourne Hospital, prepared four reports (Exhibits R4, R5, R6 and R7).  In his first report (Exhibit R4) Professor Cade noted that a full assessment of the cause of death was hampered by the fact that the veteran died suddenly at home and there was limited information about the circumstances.  He concluded that the probable cause of death was either a primary cardiac arrest or postoperative pulmonary embolus.  In his third report (Exhibit R6) Professor Cade referred to the statement by Mrs Little (Exhibit A3) and said:

It is now apparent that the patient had progressive shortness of breath during this time.  As this symptom was not relieved by his asthma inhalers, it was probably due to either cardiac failure (left ventricular failure) or chest infection (e.g. bronchopneumonia).  Of these two conditions, cardiac failure would seem to me to be the most likely in this case.

Professor J. Cade said that pulmonary embolism was unlikely.

19.      In Exhibit R6 Professor Cade stated:

It now seems to me theoretically possible to suggest an hypothesis for consideration linking the veteran‘s death with his prior service via smoking, chronic airways disease and chest infection, provided that there is some evidence to indicate firstly, that there was fever and sputum noted by his family during his final three days at home and secondly, that his smoking habit was itself service-related.

In oral evidence Professor Cade stated that because the veteran’s condition had deteriorated over several days before death he could not exclude the lung condition as a contributor to death.  Under cross-examination he agreed that his opinion had changed as a result of evidence given by Mrs Little and Mrs Pratt that the veteran had been shivering in a warm room, coughing (even though the coughing appeared to be non-specific) and trying to clear his throat.  Professor Cade agreed that shivering is a classic indicator of a rising temperature and suggests that the veteran was suffering from a chest infection.  He said that a clammy feeling may or may not be significant.

20.      The Tribunal agrees with Professor Cade that there is insufficient documentation to determine the cause of death with any certainty.  However the Tribunal accepts the evidence from Mrs Falconer and her daughters concerning the events that occurred in the days leading to the veteran’s death.  The Tribunal also accepts the conclusions by Professor Cade and Dr Byron Collins that the veteran’s shivering/shaking observed in a warm room on the day of death, plus his coughing and difficulty breathing, even with the assistance of his inhaler, suggest that a chest infection or chronic airways disease was a contributing factor to his death.  The Tribunal is reasonably satisfied that chronic obstructive airways disease was a factor contributing to the veteran’s death.

WAS CHRONIC OBSTRUCTIVE AIRWAYS DISEASE RELATED TO SERVICE?

21.      Mrs Falconer told the Tribunal that she and the veteran were married in 1936 and she had known him for about two years before the marriage.  He worked as a truck driver in the El Dorado gold mine.  She stated that the veteran was a light smoker before enlistment in the army and recalled that he purchased one 2oz. pack of tobacco each week, although she said she did not buy tobacco or cigarettes for him.  She estimated his level of smoking at 6 roll-your-own cigarettes per day, or about 40 per week and he rarely smoked tailor-made cigarettes because money was in short supply at that time.  Under cross-examination Mrs Falconer agreed that she did not know how many cigarettes the veteran was smoking.  She said that after discharge he increased his smoking significantly and was smoking about one pack of 20 tailor-made cigarettes per day, or 140 cigarettes per week.  She said that the increase may have been due to peer group pressure and boredom during service, but a contributing factor was when he was attacked by another soldier and struck across the head with a wooden crutch, which left him with a fractured skull.  Mrs Falconer also said that after discharge the veteran became depressed, sad, socially withdrawn and occasionally tearful as a result of the incident, and he tended to obtain some relief from his emotional state by smoking.

22.      Mrs Falconer stated that the veteran continued to smoke at the rate of 20 cigarettes per day until the early 1960s, when he ceased smoking on medical advice.  She said that she noticed that the veteran was suffering breathlessness and a cough after discharge, and his lung condition worsened over the years.  He required the assistance of an inhaler.

23.      At the hearing of the Veterans’ Review Board on 18 August 2006 (Exhibit R1) Mrs Falconer stated that the veteran smoked Not a lot, no before service and He smoked more, like, after he’d been in the service though.  She agreed with a proposition put to her at that hearing that the veteran smoked a couple of packets of 20 cigarettes per week, although whether this was before or after service is not clear.  Mrs Falconer also said that the veteran sometimes rolled his own cigarettes, and in relation to her knowledge of the veteran’s level of smoking she replied: So I wouldn’t have known.

24.      In a Smoking Questionnaire (T5 pages 35-36) completed by Mrs Falconer on 7 March 2005, she stated that the veteran started smoking on a regular basis during service and that he smoked 15 cigarettes per day at that time.  In answer to the question: Did the amount smoked per day ever change since you first started smoking on a regular basis? Mrs Falconer answered No.

25.      In the clinical notes provided by Northeast Health Wangaratta (Exhibit R2) the handwritten notes during the veteran’s hospital admission that commenced on 29 May 1984 (page 218) state: - stopped smoking 20 yrs ago - used to be 1 pkt/day.

26. The Tribunal accepts that Mrs Falconer did her best to recall events and situations that occurred up to 70 years ago, although her evidence about the level of the veteran’s smoking before service was speculative and she conceded at the hearing that she did not know the level of smoking before service. The Tribunal also is mindful that s 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.

27.      The Tribunal notes the estimate of 15 cigarettes per day during service given by Mrs Falconer in her application for a pension in 2005 and her statement in the application that the veteran‘s level of smoking did not change since he started smoking on a regular basis.  This is consistent with the clinical note made in 1984, presumably on advice from the veteran, that he smoked one pack of cigarettes per day until he ceased smoking in the 1960s.  The Tribunal takes into account Mrs Falconer’s evidence that the veteran smoked more heavily as a result of depression following an assault by another soldier during service.  However there is no medical evidence of depression or other psychological condition, nor is there any evidence, apart from a suggestion by Mrs Falconer, that any incident that occurred in the army led the veteran to increase his level of smoking.  There is no independent evidence that any aspect of army life contributed to an increase in smoking.

28.      After considering all the material the Tribunal finds that the veteran started smoking on a regular basis before joining the army and that he smoked about one pack of 20 cigarettes per day during service.  His level of smoking remained at about that level until he ceased smoking in the late 1960s.  Therefore the veteran had a well-established smoking habit at the time of his eligible service and there is no persuasive evidence that any small increase in his level of smoking during service was caused by his service, so there is no causal connection between his eligible service and any increase in smoking.  Consequently there is no causal link between service and the chronic obstructive airways disease suffered by the veteran that contributed to his death, and his death did not arise out of, or was attributable to, his eligible service.

DECISION

29.      The Tribunal affirms the decision under review.

I certify that the twenty-nine [29] 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:  12 May 2008

Date of decision:  21 May 2008

Counsel for the applicant:           Mr G. Moore

Solicitor for the applicant:            Williams Winter

Counsel for the respondent:        Mr G. Purcell

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