Fernance and Repatriation Commission

[2010] AATA 735

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 735

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2730

VETERAN'S APPEALS DIVISION		)
Re		Mavis Fernance

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Senior Member Jill Toohey
Dr John Campbell, Member

Date28 September 2010

PlaceSydney

Decision The decision under review is set aside and in substitution the Tribunal decides that the applicant is entitled to a widow's pension with effect from 6 August 2008.

....................[sgd]..........................

Senior Member

CATCHWORDS

VETERANS' AFFAIRS – widow’s pension – lung cancer – passive smoking – exposure to visible smoke haze – hypothesis reasonable - decision under review set aside

Veterans Entitlements Act 1986, ss 8, 13, 120, 196

Comcare v Canute (2005) 148 FCR 232

Hawke and Repatriation Commission [AATA] 2010 657

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Law 31 ALR 140 at 150-151

Treloar v Australian Telecommunications Commission (190) 26 FCR 316

REASONS FOR DECISION

28 September 2010	Senior Member Jill Toohey Dr John Campbell, Member
Background

1.      Kevin Fernance served as an orderly clerk in the Royal Australian Air Force between 1963 and 1972.  He had a period of operational service in Butterworth, Malaysia, from 5 April 1965 to 11 August 1966. 

2.      Mr Fernance died on 21 February 2008.  His death certificate shows the cause of his death as: 

(I)     (a)         Respiratory failure, days

(b)         Metastatic lung cancer, unknown

(II)     Acute renal failure, 4 days

Renal and adrenal metastases possible lung origin, unknown

3.      There is no dispute, and we are satisfied on the medical evidence, that Mr Fernance’s kind of death for the purposes of the Veterans Entitlements Act 1986 (the Act) was lung cancer.

4.      Mr Fernance’s widow, Mavis Fernance, claims a war widow’s pension.  She says her husband’s exposure to passive smoke during his operational service led to his death from lung cancer. 

5.      By s 13 of the Act, Mrs Fernance will be entitled to a widow’s pension if her husband’s death was war-caused within the meaning of s 8(1).  It is agreed that, if her claim succeeds, the earliest date of effect is 6 August 2008, being three months before she lodged her claim.  

The issues

6.      We have to determine whether Mr Fernance’s exposure to passive smoking during his operational service contributed to his death from lung cancer.

The standard of proof

7.      As Mrs Fernance’s claim arises out of her husband’s operational service, the standard of reasonable hypothesis applies: s 120(1) and s 120(3). 

8.      We have to determine whether the hypothesis that Mr Fernance’s death from lung cancer was related to his service is reasonable.  That question is assessed by reference to Statements of Principles (SOPs) issued by the Repatriation Medical Authority: s 120A.  A hypothesis is reasonable only if it conforms with an applicable SOP.

9.      The steps to be followed in making our determination are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. No finding of fact arises in determining whether or not a reasonable hypothesis exists. It is only in determining whether we are satisfied, beyond reasonable doubt, that a condition was not war-caused that any fact-finding arises.

Statement of Principles

10.     Mrs Fernance relies on factor 6(d) in SOP No 17 of 2006 (Malignant Neoplasm of the Lung):

being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 5000 hours, before the clinical onset of malignant neoplasm of the lung, where the first exposure to a visible tobacco smoke haze commenced at least five years before the clinical onset of malignant neoplasm of the lung;

“an enclosed space” means a substantially enclosed area, for example the interior of a building, ship or aircraft, a covered workshop or factory;

Material before the Tribunal

11.     Mrs Fernance has submitted a written statement in which she says she met her husband in 1965 or 1966; they lived together from 1969, and married in 1979.  She spent about two years with him in Penang and Butterworth where social activity involved visiting, or receiving visitors, at least every other night. Everyone smoked and everyone smoked inside the house.  The houses at Butterworth were fitted with fans but those at Penang were not.  The men often went to the canteen on the base but she never visited it. 

12.     Mr John Rogers served as a clerk in the RAAF from 1964 to 1989 at bases in Richmond, Regents Park and Glenbrook, and he visited bases at Williamstown and Wagga Wagga. During service in Vietnam, he spent five days rest and convalescence leave in Butterworth. 

13.     Mr Rogers provided a written statement and gave oral evidence that that smoking on bases was not permitted outside, where members were considered to be marching, but there were no restrictions on smoking inside.  In the 1960s, there was no air-conditioning in the offices, and ceiling fans were restricted to tropical areas. 

14.     Mr Rogers estimates that 70% of his fellow workers were smokers; smoking would start as soon as the office opened and, by midday, there was a visible haze in the office.  Windows were kept shut against the noise and wind from aircraft which started around 8.30am and continued at times throughout the day.  Orderly clerks attended to all personnel matters, except pay, and had a constant flow of member come to see them.  He says the level of smoking was such that, when the offices were cleaned thoroughly every Friday, tobacco residue was visible on the cleaning rags. 

15.     As far as he recalls, Mr Rogers never met Mr Fernance but he saw the room in which he would have worked at Butterworth.  He estimates the orderly room at Butterworth serviced approximately 1000 RAAF members of the 2500 personnel on the base, and that up to 30 to 35 staff could have worked there.  He saw the visible pall of smoke in the bar in the evenings.  There was little by way of alternative entertainment other than visiting the Hostel at Butterworth or each others’ houses where the atmosphere was also very smoky. 

16.     Based on his observations, Mr Rogers estimates a clerk during the period of Mr Fernance’s operational service would have been exposed to a visible smoke haze for at least four hours every work day, with further exposure during leisure periods.

17.     A written statement has been provided by Mr Emmet Michael Morrison, who served as an orderly clerk from 1954-1974, including at Butterworth from 1964-1966 and 1971-1973.  His statement concurs generally with Mr Rogers’ evidence that there were no restrictions on smoking inside.  He states that the pay office at Butterworth, where he worked, and the orderly room (where Mr Fernance worked) were adjacent to the airfield; the windows and doors were usually closed against aircraft noise and there was a visible smoke haze by lunchtime each day.  He concurs that there was little by way of alternative entertainment other than visiting the Hostel at Butterworth where the atmosphere was also very smoky.  He also estimates the exposure to a visible smoke haze of a clerk in the 1960s and 1970s was at least four hours every work day, with further exposure during leisure periods.

18.     The respondent asked Air Commodore M J Brennan (ret’d), whose service included service in Vietnam for one year from October 1968, to provide advice in relation to Mr Fernance’s claim.  AC Brennan reports that little information was available about the working conditions of clerical staff and the likely levels of smoking in the workplace, and the recollections of former RAAF personnel whom he had contacted were not clear. 

19.     AC Brennan states that smoking in the workplace was common.  Mr Fernance would have been exposed to whatever smoke haze there was, but it was not possible to quantify an individual’s exposure because of the many variables involved.  They included the number of smokers in the workplace at the time; the frequency of their smoking habit; the type and adequacy of ventilation; the attitude of RAAF management to smoking in the workplace; and the level of complaints by non-smokers who shared the workplace. 

20.     AC Brennan notes that Mr Fernance’s records showed his duties were “connected with Registry and Classified Registry”.  Although no details about the Classified Registry at Butterworth were known, he says it would have been enclosed and air-conditioned; there was no way of knowing how Mr Fernance’s duties were distributed between the two areas.  In contrast, Mr Rogers doubted this and thought that only areas with electronics were air-conditioned in the 1960s.

21.     AC Brennan noted from his records that most of Mr Fernance’s non-operational service would have been spent in orderly rooms where he would have been exposed to any smoke haze that existed.  Some rooms might have been fitted with air-conditioning and some with overhead fans, and most would have had windows.  In summer months, windows would normally be opened but may have been closed during high airfield activity. 

Consideration

22.     For Mrs Fernance it is contended that her husband spent 4 to 5 hours a day in a visible smoke haze with further exposure during leisure time.  Even allowing that he spent half of his time in an air-conditioned Classified Registry, that would amount to about 830 hours exposure over the period of his operational service.  Over the remaining 7.7 years of his service, if he spent even 109 days a year exposed for 5 hours a day, that would amount to 4,196 hours.  Thus, it is contended, of the required 5000 hours, his operational service would have contributed 16.6%.

23.     For a hypothesis to be consistent with a SOP, the material before the Tribunal must point to a factor in the SOP which is related to service.  A factor will be related to service if, inter alia, it:

(i)arose out of, or was attributable to, that service: s 196B(14)(b); or

(ii)was contributed to in a material degree by that service: s 196B(14)(d).

24.     Section 196B(14) will be satisfied if there is a causal or contributory relationship between the relevant SOP factor and the veteran’s service, or if the factor would not have occurred but for the rendering of that service: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at 374.

25.     The respondent contends that the Tribunal should have regard only to s196 B(14)(d), on the ground that Mr Fernance was a smoker prior to service.  The respondent refers us to the Tribunal’s decision in Hawke and Repatriation Commission [AATA] 2010 657 in which Mr Hawke was a smoker prior to service.  However, in that case, the factor relied on was an increase in smoking during service which, in our view, distinguishes it from this case which relies on exposure to passive smoking.

26.     The respondent contends that, following Comcare v Canute (2005) 148 FCR 232, the expression in a material degree in s 196B(14)(d) requires a contribution that is material or substantial.  For Mrs Fernance it is contended that Canute, and Treloar v Australian Telecommunications Commission (190) 26 FCR 316, which followed it, have no application in the context of veterans’ legislation. We are not persuaded that this is correct but, in any event, a contribution of 16.6% would be material: it is more than a mere contribution; it cannot be discounted as inconsequential or insubstantial.

27.     In any event, even if s 196B(14)(d) were not satisfied, it is sufficient if s 196B(14)(b) is satisfied. 

28.     “Arisen out of” in s 196B(14)(b) connotes a less proximate relationship than “caused by” or “results from”, but one which is not fanciful or tenuous.  It is sufficient to show “attributability” if war service is a contributing cause: Repatriation Commission v Law 31 ALR 140 at 150-151.   

29.     The material points to Mr Fernance having worked during his operational service in an office that meets the definition of “enclosed” space in the SOP.  Whether windows were opened from time to time does not detract from the evidence pointing to it being a “substantially enclosed area”.  The material suggests that Mr Fernance would have spent at least some time, possibly up to half, in the Classified Registry, which may have been air-conditioned, but that is the extent of the evidence suggesting time spent away from his usual workplace.

30.     The material points to a large proportion of personnel smoking and to Mr Fernance working with some number of others in an office with little or no ventilation for a good part of the day.  It points to a visible smoke haze by midday each day, and exposure of four to five hours each day, as well as after work.  It further points to continued exposure at that rate throughout his service. 

31.     The evidence about Mr Fernance’s working conditions is limited but we are satisfied that it raises a real possibility of the matters required to meet the SOP factor.

32.     We find nothing in the material before us which would satisfy us, beyond reasonable doubt, that the facts on which the hypothesis depends are not made out.  It follows that we are satisfied that Mr Fernance’s death from lung cancer was war-caused.

Conclusion

33.     We are satisfied, on the evidence before us, that a reasonable hypothesis in relation to Mr Fernance’s death is made out.  We set aside the decision under review and substitute the decision that Mrs Fernance is entitled to a widow’s pension with effect from 6 August 2008.

I certify that the 33 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey and Dr John Campbell

Signed:         ............[sgd]....................................................................
           Diana Weston  Associate

Date of Hearing  16 September 2010

Date of Decision  28 September 2010

Representative for the Applicant  Mr Tony Latimore, Legal Aid Commission

Counsel for the Applicant:  Mr Craig Colborne

Representative for the Respondent:               Mr Ken Rudge, Department of Veterans’ Affairs