Freeman and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1650

Freeman and Repatriation Commission (Veterans' entitlements) [2020] AATA 1650 (9 June 2020)
Division:VETERANS' APPEALS DIVISION
File Number: 2017/6104
Re:Diane Freeman
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:9 June 2020
Place:Brisbane

The decision under review is affirmed.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veteran deceased – claim for war widow’s pension – cause of death subdural haemorrhage – relevant conditions of subdural haematoma and ischaemic heart disease – relevant Statement of Principles – whether the veteran’s smoking habit arose out of, or was attributable to, his defence service – smoking habit pre-dated defence service – decision under review affirmed
LEGISLATION
Statement of Principles concerning Subdural Haematoma No 34 of 2011 (Cth)
Statement of Principles concerning Subdural Haematoma No 101 of 2019 (Cth)
Statement of Principles concerning Ischaemic Heart Disease No 2 of 2016 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Budge v Repatriation Commission [2014] AATA 276
Kattenberg v Repatriation Commission (2002) 73 ALD 365; [2002] FCA 412
McDermott v Repatriation Commission [2011] AATA 714
Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711
Repatriation Commission v Hawkins (1993) 45 FCR 205; [1993] FCA 479
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635; [1981] HCA 57
Repatriation Commission v Tuite (1992) 37 FCR 571
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2003) 75 ALD 345; [2003] FCAFC 146
Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40
SECONDARY MATERIALS
Radcliffe, M 2017, Kampong Australia: The RAAF at Butterworth, NewSouth Publishing, Australia.
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
9 June 2020
BACKGROUND

Mrs Diane Freeman, the applicant in this matter, is the widow of the late Mr Ross Freeman (“the veteran”). The applicant has submitted a claim for war widow’s pension under the Veterans’ Entitlements Act 1986 (“the Act”), claiming that the veteran’s death was caused by his defence service with the Royal Australian Air Force (“RAAF”).
The veteran served in the RAAF from 26 August 1968 to 15 December 1988. The relevant period of defence service is from 7 December 1972 to 15 December 1988. The majority of the veteran’s service was spent as a RAAF police officer. He was also deployed to Malaysia from 4 December 1979 to 2 June 1982.
The veteran died on 23 April 2016 at 73 years of age. The causes of death listed on the death certificate were:[1]
·Primary brain injury;
·Acute on subacute subdural haemorrhage;
·Anticoagulation for mechanical aortic valve replacement; and
·Pancreatic adenocarcinoma.
[1] Exhibit A, T-Documents, T13.
The applicant lodged her claim for war widow’s pension under the Act on

23 August 2016.[2] The claim was refused by the respondent on 27 September 2016, as it was determined that the veteran’s death was not defence-caused.[3] On 18 September 2017 the Veterans’ Review Board (“VRB”) affirmed the original decision.[4] On 15 October 2017 the applicant applied to this Tribunal for review.[5]
[2] Exhibit A, T-Documents, T14.
[3] Exhibit A, T-Documents, T20.
[4] Exhibit A, T-Documents, T29.
[5] Exhibit A, T-Documents, T2.
ISSUES
The issues to be determined are:
·The ‘kind of death’ the veteran suffered;
·Whether the ‘kind of death’ suffered by the veteran was defence-caused; and
·Whether there is a Statement of Principles (“SoP”) in force that upholds the contention that the ‘kind of death’ was, on the balance of probabilities, connected to that service.
LEGISLATIVE FRAMEWORK
Section 70(1)(a) of the Act provides that where the death of a serving member was defence-caused, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the dependants of the member. The veteran performed defence service for the purposes of the Act from 7 December 1972 to 15 December 1988.[6]
[6] See section 68.
The determination of whether the death of the veteran was defence-caused is to be made by applying sections 120 and 120A of the Act. Section 120(4) requires this Tribunal to decide the matter to its “reasonable satisfaction”; i.e. for the applicant to be successful it must be established, on the balance of probabilities, that the applicant’s PTSD condition was defence-caused.
Subsection 120A(3) of the Act provides that:
(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); …
that upholds the hypothesis.
Section 120B(3) of the Act also applies. This section outlines that the standard of “reasonable satisfaction” is to be assessed by reference to any relevant Statement of Principles (“SoPs”) issued by the Repatriation Medical Authority (“RMA”) .
Section 196A of the Act provides for the establishment of the RMA, which is an independent medical body that issues SoPs based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death. SoPs are binding on the respondent and various review bodies, including this Tribunal.
The relevant SoPs in this matter are the Statement of Principles concerning Ischaemic Heart Disease No 2 of 2016, the Statement of Principles concerning Subdural Haematoma No 34 of 2011 and the Statement of Principles concerning Subdural Haematoma No 101 of 2019.
Section 196B(14) of the Act is also relevant. It is set out as follows:
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
(e) in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f) in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g) in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service.
EVIDENCE
The applicant’s evidence
The applicant provided a statement dated 27 February 2018.[7] She stated that she met the veteran in around 1986, but they only commenced their relationship in 1988 after he was discharged from the RAAF. They were married in 1989. She noted that the veteran had three children from his previous marriage.
[7] Exhibit D.
The applicant stated that the veteran was smoking when they met but he was trying to give up. She stated that about a month after they were married he stopped smoking completely. She stated that the veteran told her that he had tried to give up smoking while he was in the RAAF on a number of occasions, as he knew it wasn’t good for his health and he was experiencing health problems, especially with his heart. He had also stopped successfully before but then relapsed.
The applicant stated that the veteran joined the RAAF as a medical orderly in 1968, then transferred to the RAAF Police in 1971 and remained there until his discharge in 1988. The applicant indicated that it was her understanding that it was the stress of his work as a RAAF policeman that caused the veteran to keep smoking and smoke heavily. She stated that aspects of the veteran’s job which were stressful included providing security for VIPs, and attending fatal traffic accidents; she said these “clearly deeply distressed him”, and he mentioned viewing body parts on at least one occasion. She stated that it was her impression that there were a number of these incidents. The veteran also told the applicant that he undertook drug investigations within the RAAF.
The veteran told the applicant that he suffered high levels of frustration and stress during his RAAF service from his inability to be promoted beyond Sergeant. This had long-term financial consequences for him. The applicant understood that some of the reports from his Commanding Officers were quite critical in the promotion process. The veteran had also been told by someone else that he was “too honest” in his dealings with superior officers, and it upset him that acting honestly would be detrimental to a promotion. The applicant stated that she always knew the veteran as a very honest person, and stated that he always tried to do the right thing.
The applicant detailed a particular incident which seemed to have had an effect on the veteran’s promotion prospects; some weapons went missing and he was blamed, even though he was not on duty at the time. She stated that the veteran felt that he’d been treated unfairly and unjustly, and had been made a scapegoat. The applicant stated that this incident added to the veteran’s deep sense of frustration at not being appropriately rewarded for his years of devoted service.
The applicant also gave evidence at the hearing. During her evidence-in-chief she confirmed that the smoking questionnaire completed regarding the veteran’s smoking history had been signed and sighted by her, but that it had been filled out by an advocate on her behalf. She confirmed that the details were accurate to her recollection.
The applicant confirmed that the veteran had taken aspirin, and that he had taken it in the lead up to being admitted to hospital on 18 April 2016. When asked about how she knew this, the applicant stated that she was also taking aspirin and they shared the same container. She also commented that the veteran was “a stickler” with taking his medication, and he made sure to take it at the same time every day.
Under cross-examination the applicant stated that she has never smoked and that she doesn’t like smoking. She commented that she didn’t know the veteran was smoking when she first met him. She stated that he stopped smoking completely by October 1989, one month after they were married.
The applicant was asked about her knowledge of the veteran’s first wife, and she advised that his first wife was a very heavy smoker. She was asked about how she knew the quantity of cigarettes that the veteran had smoked, and she stated that the veteran had told her after he gave it up. The applicant also confirmed that the applicant experienced stress from his first marriage breakdown and from being a single father raising two children.
Dale Freeman
Ms Freeman is the daughter of the late veteran. She provided a statutory declaration dated 29 May 2016.[8] Ms Freeman stated that her parents divorced in 1982 when she was 3 years old. She stated that her brother Shane and half-sister Jody spoke of her mother and father drinking and smoking heavily when they were together.
[8] Exhibit A, T-Documents, T17.
Ms Freeman lived with her mother initially but went to live with the veteran in 1986 at the age of 7. When the veteran had custody of her and her brother “he cut down dramatically on his drinking”. She stated that she rarely saw him drink at home, but most of her childhood memories involve the veteran smoking frequently. She stated that she believed the high stress of being a single father and working on a shift work roster caused the veteran to turn to cigarettes as a stress reliever. Ms Freeman stated that when she was older, she and the veteran spoke of how much he smoked, and he admitted to smoking at least two packets a day, and possibly more, when he was serving in the RAAF.
Ms Freeman also provided a statement dated 27 February 2018.[9] In this statement she reiterated that both her parents had been heavy smokers, and the veteran was still a heavy smoker when she lived with him. She specifically recalled him chain smoking.
[9] Exhibit C.
Ms Freeman noted that the veteran had told her that he was stressed and frustrated by not being promoted beyond Sergeant in the RAAF. She stated that she begged the veteran to give up smoking but he found it very difficult, which she believes was due to the stress of his work. The veteran tried to give up on a number of occasions. Ms Freeman believes that the veteran was finally able to give up smoking in 1989, after he was discharged, because he was no longer stressed from work.
Ms Freeman gave evidence at the hearing. Under cross-examination, she elaborated on her memories of the veteran smoking. She stated that her parents smoked everywhere, including in their home and car. She stated that most of her baby photos included them having cigarettes in their hands. She also advised that the veteran met her mother after he had already joined the RAAF.
Ms Freeman stated that she believed the veteran’s greatest stress was raising two children as a single father. She did not believe that his marriage breakdown was a cause of stress when she lived with him, because that was four years after the marriage breakdown.
Ms Freeman agreed that the applicant had a positive impact on the veteran in terms of his smoking. She also considered that her presence had a positive impact on his stress as it meant that there was another parent to look after the two children.
Shane Freeman
Mr Freeman is the son of the late veteran. He provided a statement dated 28 February 2018.[10] Mr Freeman lived with the veteran from 1985 when he was about 11 years old.
[10] Exhibit E.
Mr Freeman stated that he noticed when he went to live with the veteran that he was smoking more than when Mr Freeman’s parents were together prior to 1983. He stated that some days the veteran came home stressed, and one indication that he was stressed was that he would smoke even more than normal; normally he was a heavy smoker. Mr Freeman commented that working split shifts was stressful for the veteran. He stated that the veteran smoked at least two packets of cigarettes a day, and sometimes more.
Mr Freeman stated that the veteran tried to give up smoking on several occasions but he didn’t last long. He believed that the veteran’s inability to give up smoking was due to the pressure of the life he was leading, having a stressful job, and raising two children with little support.
At the hearing Mr Freeman confirmed the evidence of his sister and agreed that he recalled both of his parents smoking at home and in the car, and in most of their family photos. He was asked how he concluded that the veteran appeared to smoke more than he did before his marriage breakdown. He stated that the veteran always had a cigarette in his hand, and the ash trays were fuller than they used to be. Mr Freeman was also asked about the period of time when he was being “rebellious” and he said he would have been around 13 or 14. He commented, “I used to try to run away” and “I used to just rebel from not having him around because of the job”.
Noel Farmer
Mr Farmer was a close friend of the veteran who also served in the RAAF. He provided a statement dated 26 February 2018.[11] Mr Farmer stated that he met and became friends with the veteran whilst they were both serving at RAAF Base Amberley, but they met at church. He and the veteran were both single fathers. He stated that they often spoke about the lack of support for single parents in the Defence Force. Mr Farmer stated that he knew being a single parent “caused him a great deal of stress and worry. It was an ongoing problem that added to the ordinary stresses of service life”.
[11] Exhibit B.
Mr Farmer also mentioned that he knew the veteran felt that he had been unfairly overlooked for promotion, and this was another cause of stress for him.
Mr Farmer spoke about the veteran’s role as a RAAF Policeman. He stated that the veteran found certain aspects of the job stressful. The veteran spoke to Mr Farmer’s wife about having to deal with service members attempting or threatening suicide as “extremely stressful”; this included a friend of the veteran’s. Mr Farmer stated, “Upsetting memories of these occasions tended to linger with him for quite some time and they clearly distressed him”.
Mr Farmer stated that the veteran was a very heavy smoker. He stated that he tried to give up smoking on several occasions but was unsuccessful. Mr Farmer stated that he believed this to be due to the stress of his job, the stress of his broken marriage and the day-to-day stresses of raising two children as a single parent in a Defence environment. He also noted that the veteran’s son Shane had some serious behavioural issues which added to this stress.
Mr Farmer gave evidence at the hearing. He advised that he met the veteran in 1987-88. He was asked to elaborate on the difficulties the veteran experienced as a single parent. He stated that the veteran was on call 24 hours a day and he did strange shifts, his son was “somewhat difficult to handle”, and “because he didn’t really know anyone other than myself, he had no one to look after his children while he was at work, and the pressure of being concerned as to what they were doing while he was at work started to show up on him over a period of time”.
He was asked to expand on the difficulties the veteran had with his son. He stated, “His son was very rebellious”; he would just suddenly disappear for several days and then come back, he would argue and want to fight with his father. He stated that he thinks that was because of the situation between Mr Freeman’s father and mother.
Mr Farmer confirmed that the veteran was smoking when they met, and that he was a very heavy smoker. He was asked about his knowledge of the veteran’s attempts to reduce his smoking, and he agreed that the veteran was trying to stop in 1986-1988. He stated that he could see the pressure the veteran was under, and stated that he just couldn’t give up cigarettes “because it was the relaxant that settled him down after his day’s labour at the base”.
During the course of questioning it became clear that Mr Farmer was not aware that the veteran managed to give up smoking after he married the applicant; Mr Farmer believed that the veteran only managed to give up smoking towards the end of his life. Mr Farmer clarified that while they remained friends, he didn’t see the veteran in person after his discharge because he was posted down to Melbourne.
Peter Buckley
Mr Buckley is a retired RAAF Police Officer. He provided a statement dated 11 April 2018.[12] Mr Buckley did not serve with the veteran and did not know him personally; he provided the statement to comment on the nature of the veteran’s duties and the likely stressful experiences he may have encountered in his military policing role.
[12] Exhibit F.
Mr Buckley’s own experiences included drug raids, deaths by overdose, suicides, firearm incidents, identifying deceased persons, and security investigations.

Mr Buckley stated that he had reviewed the veteran’s service history and it appeared the veteran served in some difficult postings. Butterworth, Malaysia, was a difficult posting; despite having never served there Mr Buckley has had numerous discussions with colleagues who did. He noted at the rank of Sergeant the veteran would have had a high level of responsibility at Butterworth. He stated that the veteran would likely have been responsible for general security and policing duties including attending traffic accidents, violent domestic situations, matters involving vice or drugs, and other stressful activities. He stated that RAAF Police were often first responders to these incidents. Mr Buckley also commented that smoking was a typical stress reliever at this particular posting, and there were numerous opportunities to do so at Butterworth.
Mr Buckley stated that boredom could have been a factor in the veteran’s smoking too; RAAF police experienced two extremes: a lot of down time and periods of high stress, both of which led to a lot of smoking.
Mr Buckley stated that the veteran’s service records also indicate that he was involved in a number of exercises for weeks at a time. He stated that deployments on exercise were stressful; the locations were often hot, dusty and uncomfortable, you’re away from your family, there are longer working hours, and there is boredom during “down time”.
Mr Buckley stated that at RAAF Fairbairn, Canberra, the veteran would have been involved in providing security for VIPs. The VIP Squadron is very busy and used extensively by Australian and overseas politicians, who all require security.
Dr Albert Palazzo, military historian
Dr Palazzo provided a report on the veteran’s RAAF service dated 19 August 2018.[13] Dr Palazzo’s report focused on the veteran’s possible exposure to traumatic incidents at RAAF Butterworth and RAAF Fairbairn in Canberra.
[13] Exhibit H.
Dr Palazzo reported that the applicant enlisted in the RAAF in 1968 and transferred to the RAAF Service Police in 1971. On 4 December 1979 he was posted to RAAF Butterworth in Malaysia, and remained there until 3 June 1982, when he was assigned to RAAF Fairbairn in Canberra. He remained at RAAF Fairbairn for more than four years.
Dr Palazzo stated that at the time the veteran was in the RAAF, the focus of the RAAF Service Police was on law enforcement.
Dr Palazzo stated that a review of the records for RAAF Base Butterworth did not reveal anything involving the activities of the RAAF Police. The main focus of Dr Palazzo’s investigation was on a book entitled Kampong Australia, which was written as a social history of RAAF life at Butterworth.[14] Dr Palazzo stated that this book was suggestive of the types of situations that the veteran would have encountered during his time at Butterworth. One of the many issues was serious motor vehicle accidents involving injury and death, often caused by excessive alcohol consumption on the part of the Australian servicemen.
[14] Radcliffe, M 2017, Kampong Australia: The RAAF at Butterworth, NewSouth Publishing, Australia.
Dr Palazzo stated that the records for RAAF Base Fairbairn made no mention of any police activity during the veteran’s period of service at the base. Therefore he could not draw any conclusions on the nature of the duties the veteran would have performed there.
When he gave evidence at the hearing, Dr Palazzo confirmed that his conclusions regarding the tasks that the veteran would have been responsible for were based on what he would have likely participated in. He stated that at that time the RAAF service police were effectively the equivalent of civilian police. He commented that it was not surprising that RAAF service police were not mentioned in the base documents because they are almost never mentioned in the surviving documentation.
Medical evidence
A letter from Dr David Coles dated 22 April 1983 indicated that Dr Coles had reiterated to the veteran his previous advice about ceasing smoking.[15]
[15] Exhibit A, T-Documents, T31, p. 173.
A letter from Dr Bill Rowe dated 14 May 1987 stated that the veteran was smoking 18 cigarettes per day at that time, and until recently he was smoking 60 cigarettes per day.[16]
[16] Exhibit A, T-Documents, T31, p. 147.
A medical examination record dated September 1988 stated that the veteran had stopped smoking 6 weeks ago.[17] A further medical examination record dated 28 November 1988 stated that the veteran was “giving up smoking currently”.[18] This record also mentioned that the veteran had known aortic stenosis. A discharge health statement of the same date noted that the veteran’s aortic stenosis was discovered in March 1979, and that the veteran was a heavy smoker.[19]
[17] Exhibit A, T-Documents, T31, p. 150.
[18] Exhibit A, T-Documents, T31, p. 169.
[19] Exhibit A, T-Documents, T31, p. 170.
A letter from Dr Bill Rowe dated 13 December 1988 noted that the veteran reported being generally well since his last visit, with no chest pain.[20] It was noted that the veteran still smoked around 6 cigarettes per day.
[20] Exhibit A, T-Documents, T31, p. 171.
A 29 February 1996 echocardiography report of Dr Donald Le Quesne diagnosed the veteran with calcific aortic valve disease with moderate aortic stenosis.[21] A letter from Dr Quesne to Dr Michael Tan dated 1 March 1996 noted that the veteran reported feeling quite well and had no cardiopulmonary symptoms.[22] Repeat echocardiograms were conducted on 20 September 1996, 1 August 1997 and 14 July 1998, all of which showed no significant changes.[23]
[21] Exhibit A, T-Documents, T32, p. 179.
[22] Exhibit A, T-Documents, T32, p. 180.
[23] Exhibit A, T-Documents, T32, pp. 182, 188 and 191.
A further echocardiography report conducted on 29 June 1999 again reported no significant change, but noted that the left ventricle was mildly dilated, with function preserved.[24]
[24] Exhibit A, T-Documents, T32, p. 215.
On 27 June 2000 an echocardiography was conducted which revealed that the left ventricle was grossly dilated, and that left ventricle function appeared to have reduced since the last echocardiogram.[25] The veteran was referred to the Prince Charles Hospital cardiology clinic for assessment of his need for cardiac surgery or the implantation of a permanent pacemaker.[26]
[25] Exhibit A, T-Documents, T32, p. 227.
[26] Exhibit A, T-Documents, T32, p. 229.
A summary of the veteran’s admission to Prince Charles Hospital outlined the veteran’s diagnosis of moderate aortic stenosis with regurgitation, single vessel coronary artery disease, and complete heart block.[27] It was noted that the veteran was taking warfarin when he was discharged on 31 July 2000. It was also noted that the veteran underwent aortic valve replacement in August 2000, and in the post-operative period he underwent dual chamber permanent pacemaker implementation for his complete AV block. A letter from Dr Trevor Fayers, cardiac surgeon, to Dr Michael Tan, GP, dated 11 September 2000 noted that the veteran was placed on warfarin due to the left ventricle dilation.
[27] Exhibit A, T-Documents, T32, p. 232.
The veteran was reviewed by Dr Fayers on 3 November 2000.[28] It was reported that he had been doing very well since his discharge and had remained very active. Follow up examinations conducted on 10 January 2001, 4 September 2002 and 10 March 2004 all noted that the veteran continued to take warfarin and that he had been well.[29]
[28] Exhibit A, T-Documents, T32, p. 246.
[29] Exhibit A, T-Documents, T32, pp. 250, 260 and 268.
A follow up examination conducted on 9 March 2005 noted that the veteran’s latest echocardiogram showed “quite severe impairment of left ventricular systolic function”, and the cardiologist recommended increasing his ACE inhibitor therapy.[30] Further reviews conducted on 8 March 2006, 7 November 2007 and 18 November 2009 all documented that the veteran felt well, showed no symptoms or signs of cardiac failure, and was still taking warfarin.[31]
[30] Exhibit A, T-Documents, T32, p. 275.
[31] Exhibit A, T-Documents, T32, pp. 282, 291 and 301.
A 9 September 2011 medication summary from the Prince Charles Hospital indicated that the veteran was instructed to take both warfarin and aspirin.[32] It was noted that warfarin was used for preventing blood clots and aspirin was for preventing blood clots, heart attack and stroke.
[32] Exhibit A, T-Documents, T32, p. 324.
On 11 October 2011 a biventricular defibrillator implantation was performed on the veteran.[33] On 28 April 2015 the biventricular defibrillator generator was changed.[34]
[33] Exhibit A, T-Documents, T32, p. 326.
[34] Exhibit A, T-Documents, T32, p. 365.
A letter from cardiologist Dr Jhn Bett to Dr Tan dated 25 July 2012 referred to the veteran still taking warfarin and aspirin, and noted that the veteran remained symptom-free and continued to exercise regularly.[35] A further letter to Dr Tan dated 12 June 2013 reiterated that the veteran remained stable with regard to his coronary artery disease, and continued to take warfarin and aspirin.[36] A letter from Dr Yong Wee, cardiologist, to Dr Tan dated 15 September 2015 noted that the veteran was still well with no symptoms, and continued to take aspirin and warfarin. A discharge summary from Nambour Hospital dated 7 March 2016 outlined that the veteran was transferred from the Prince Charles Hospital for replacement of a fractured lead in his pacemaker; this summary noted that the veteran was taking aspirin and warfarin at the time of his discharge.[37]
[35] Exhibit A, T-Documents, T32, p. 337.
[36] Exhibit A, T-Documents, T32, p. 350.
[37] Exhibit A, T-Documents, T32, p. 392.
A 14 April 2016 letter from Dr Scott Cooper to Dr Tan detailed how the veteran was recently admitted to Nambour Hospital with malfunctioning pacemaker leads, and when he underwent further imaging it showed a head of pancreas mass, which was later confirmed to be malignant.[38] The veteran decided not to have surgery and this meant he would become palliative.
[38] Exhibit A, T-Documents, T32, p. 399.
A discharge summary from Nambour Hospital dated 24 April 2016 detailed the veteran’s hospital visit, stating that the veteran was admitted for elective CBD stenting “for worsening obstructive jaundice [secondary] to pancreatic mass”.[39] It was noted that warfarin was withheld and bridged with a heparin infusion. It was noted that the veteran was on warfarin for his mechanical aortic valve to “prevent stroke and blood clots”. It was noted that the veteran was taking aspirin to “prevent heart attacks and strokes”, but there was a comment: “recently stopped taking pre-op on his own accord”. While in hospital the veteran suffered a catastrophic left-sided acute on subacute subdural haemorrhage while on sub therapeutic anticoagulation. The veteran’s family was advised there was a very poor prognosis, and treatment was withdrawn. The veteran was declared deceased on 23 April 2016.
[39] Exhibit A, T-Documents, T30.
Dr Diem Pham, medical officer, sent a letter to the respondent detailing that the veteran’s primary cause of death was a subdural haemorrhage, and two conditions which may have materially contributed to his death were:[40]
·Bicuspid aortic valve requiring aortic valve replacement; and
·Malignant neoplasm of the pancreas.
[40] Exhibit A, T-Documents, T19.
Dr Alex Bordujenko
On 23 May 2017 the VRB requested further information from the respondent regarding whether the veteran was being given warfarin and heparin in the two weeks before his death to treat any other condition in addition to having a mechanical aortic valve.[41]
[41] Exhibit A, T-Documents, T26.
In response, on 30 May 2017 Dr Alex Bordujenko, contracted medical advisor, detailed that the veteran relevantly suffered from ischaemic heart disease and complete heart block.[42] She stated that the veteran’s ischaemic heart disease was treated with coronary artery bypass grafts and medication including aspirin, and his complete heart block was managed with a pacemaker, which was then replaced with a biventricular defibrillator. She stated that neither of those conditions as managed would require treatment with warfarin in the two weeks before the veteran’s death.
[42] Exhibit A, T-Documents, T27.
Dr Bordujenko stated that the veteran had a number of features in his history which may have contributed to his death, which was proximately due to subdural haemorrhage, including:
·He was using long-term warfarin therapy to manage the increased risk of clotting by the mechanical aortic valve;
·He had inoperable pancreatic malignancy;
·He had very disturbed liver function which may have impacted on his coagulation functions;
·He was prescribed regular aspirin; and
·“While he was only using low dose aspirin, this, in conjunction with the other more significant contributory factors may have combined to precipitate the subdural haemorrhage..”, however, it is unlikely that this would have been a significant contribution.
Dr Bordujenko considered that the veteran would have been taking aspirin for the management of his ischaemic heart disease.
Dr Kenneth Hossack, cardiologist
Dr Hossack provided a report dated 1 June 2018.[43] He stated that, in his opinion, heavy smoking was not associated with the progression of aortic valve stenosis. He also did not believe that the veteran’s ischaemic heart disease would have contributed to the development of the aortic valve stenosis or led to a clinical worsening of that condition.
[43] Exhibit G.
Dr Hossack opined that the likely date of onset of the veteran’s ischaemic heart disease was from 1 January 1995, based on the angiogram performed on 31 July 2000.
Dr Hossack considered that the veteran would have been taking warfarin primarily for his aortic valve stenosis, however, he did state that there is some evidence that warfarin may be beneficial in patients with ischaemic heart disease to prevent recurrent events such as heart attacks.
Dr Hossack opined that aspirin would have been prescribed to the veteran solely because of the presence of coronary artery disease.
Dr Hossack reported that the medical literature indicates that the use of warfarin and aspirin each predisposes a person to the development of subdural haematoma, and the combined use of both markedly increases the risk of subdural haematoma.
SUBMISSIONS
Applicant submissions
The applicant submits that the relevant ‘kind of death’ suffered by the veteran for the purposes of the Act is subdural haematoma.
The applicant’s submissions were summarised as follows:
·As a result of his stressful defence service the veteran increased his smoking habit;
·The veteran’s smoking habit led to the veteran developing ischaemic heart disease;
·The veteran was treated for his ischaemic heart disease with low dose aspirin; and
·The aspirin taken by the veteran contributed to the development of the subdural haematoma which caused his death
SoPs
The applicant submits that the relevant factor in the subdural haematoma SoP is factor 6(d):
(d) undergoing a course of treatment with a drug from the specified list within the two weeks before the clinical onset of subdural haematoma;
The specified list of drugs defined in clause 9 of the SoP includes aspirin and warfarin.
The applicant submits that the relevant factor in the ischaemic heart disease SoP is factor 6(c):
(6)Where smoking has ceased prior to the clinical onset of ischaemic heart disease:
(c) smoking at least 20 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease;
Subdural haematoma
The applicant seeks to rely on the report of Dr Hossack. The applicant accepts, on the basis of his report, that warfarin was prescribed for the veteran’s mechanical aortic valve, which was for his congenital condition of aortic stenosis. The applicant accepts that there is no medical evidence that the aortic stenosis condition was causally related to his defence service; therefore, the applicant does not submit that warfarin was connected to the veteran’s death.
The applicant relies on Dr Hossack’s opinion that the veteran was likely prescribed aspirin for his ischaemic heart disease. The applicant notes that this opinion is accepted by the respondent, and the remaining issue is whether the veteran was taking aspirin within the two weeks before the clinical onset of the subdural haematoma.
The applicant submits that the clinical onset of the subdural haematoma was around 21-23 April 2016, as the death certificate recorded ‘hours’ in relation to its duration. The applicant submits that the following evidence supports that the veteran was taking aspirin within the two weeks before the clinical onset of subdural haematoma:
·The hospital discharge summary dated 24 April 2016 stated that on admission the veteran was on aspirin “to prevent heart attacks and strokes”, which he had “recently stopped taking pre-op of his own accord”;
·Notwithstanding that the discharge summary indicated that the veteran stopped taking aspirin, the evidence supports that the veteran took aspirin until at least 18 April 2016 (i.e. within the 2 weeks of clinical onset);
·The hospital discharge summary dated 3 March 2016 recorded that the veteran was prescribed aspirin;
·In a letter dated 13 April 2016, Dr Nanda recommended that an ERCP procedure be reattempted the following week, and noted that the veteran would need to come off warfarin; critically, there was no mention of the veteran coming off or ceasing aspirin; and
·The applicant also gave evidence that the veteran took aspirin right up until his admission to hospital on 18 April 2016; she knew this because she had also been prescribed aspirin and she took it every day, and they shared the same medication. She described the veteran as a “stickler” for taking medication that had been prescribed to him.
Ischaemic heart disease
In the smoking questionnaire the applicant indicated that the veteran started smoking in 1968, due to the pressure and stress he experienced in his police role. Given that the veteran started working as a police officer in November 1971, the applicant submits that the commencement of the veteran’s regular smoking habit was in around November 1971. The applicant also stated that the veteran smoked 40 cigarettes a day and ceased smoking permanently in October 1989. The applicant submits that a smoking habit of this quantity and duration meets the factor in the SoP.
The applicant also submits that the veteran’s smoking was related to his defence service, therefore satisfying the SoP, for the following reasons:
·The veteran told the applicant that he tried to give up smoking while he was in the RAAF on a number of occasions, and she understood that it was the stress of the veteran’s work as an RAAF police officer that caused him to keep smoking;
·The veteran’s children, Dale and Shane Freeman, gave evidence that their father tried to give up smoking while he was in the RAAF on a number of occasions but he was unable to do so because he found that it assisted him to deal with work stress.
-    Dale Freeman stated that she begged her father to stop smoking but he didn’t, and she put this down to the stress of work; and when her father did manage to give up smoking it was because he did not have the same stress in his life after leaving the RAAF;
-    Shane Freeman said that his father smoked more when he was under stress, and he observed his father coming home from work appearing to be stressed;
·The stressful nature of the veteran’s work has been established in the evidence:
-    The applicant gave evidence that the veteran’s job included providing security for VIPs and attending fatal traffic accidents, and she observed that these accidents deeply distressed him;
-    Ex-RAAF police officer Peter Buckley confirmed the highly stressful nature of the work of an RAAF policeman;
-    Noel Farmer gave evidence that:
o   The veteran found his work as a RAAF policeman stressful;
o   Defence force members were at a disadvantage compared to civilians because they were posted away from family and lacked family support, and they were required to be on call at all hours; and
o   The veteran told Mr Farmer’s wife that he found dealing with service members who threatened or committed suicide extremely stressful, and those memories tended to linger with him for quite some time.

The applicant submits that this evidence supports a finding that a causal relationship exists between stress experienced by the veteran as a result of his defence service work activities and his smoking habit. The applicant submits that the words “arose out of or been attributable to” have been held to satisfy a connection with defence service “.....if some less proximate causal relationship is established”.[44] The applicant noted that it was emphasised during the High Court appeal of this case that causation would be sufficient “if the cause was one of a number of causes provided that it was a contributing cause ...”[45]
[44] Repatriation Commission v Law (1980) 31 ALR 140 at 150.
[45] Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635 at 648.
While the above authorities were considering identical words used in s 8 of the Act, the words in section 70(5) of the Act have also been more recently considered. In Roncevich v Repatriation Commission[46], the Federal Court held that the interpretation of causation involves a relatively broad test, although it was not to be viewed “... whether the relevant act ... was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”
[46] [2003] FCAFC 146; (2003) 75 ALD 345 at [27].
“Moreover, if the circumstances of 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”: Repatriation Commission v Tuite.[47] The applicant submits that, applying this principle to the present case, it matters not that stress of the veteran dealing with his work duties as a military policeman whilst having the care of his two young children could be found elsewhere in some other job.
[47] (1992) 37 FCR 571.
The applicant also highlighted the relevance of the Full Federal Court decision of Repatriation Commission v Hawkins.[48] This was another smoking case where the causation of smoking was questioned as not resulting from the veteran's service. The Court specifically accepted Tuite (supra) (at 227) in stating that: “Where the question is whether a disease is causally related to an event, a demonstrated relationship with matters inseparably bound up with that event, being inevitable concomitants of it, will in general suffice ...” Notably, the Court highlighted the futility of considering the question of whether the veteran would have developed a smoking habit if he had not been in Vietnam, stating the fact was that he was there and this was central to the series of events which led to the development of a smoking habit. They stated that it would be lacking in reality not to term it a causal factor. The applicant submits that, applying this to the present case, it would be futile for the Tribunal to consider the question of whether the veteran would have continued his smoking habit if he had been faced with similar stress in some other circumstances. The applicant submits that the key matters are that the veteran tried to give up smoking whilst he was in the Air Force on a number of occasions, and the stress of his work as an RAAF policeman caused the veteran to keep smoking.
[48] [1993] FCA 479; (1993) 117 ALR 225.
The applicant submits that the Tribunal should find that:
·The veteran’s smoking habit is related to defence service;
·Accordingly, his ischaemic heart disease is related to defence service;
·Consequently, his treatment of aspirin is related to defence service; and
·Consequently, his death from subdural haematoma is related to defence service.
Respondent submissions
The respondent has clarified that since the hearing of this matter the remaining issue in dispute can be narrowed to the question of whether the relevant smoking factor in the SoP for ischaemic heart disease can be related to the veteran’s relevant defence service. The respondent submits that they do not dispute that:
·The veteran’s kind of death was subdural haemorrhage;
·There is an applicable SoP for subdural haematoma;
·The veteran was undergoing a course of treatment with aspirin within the two weeks before the clinical onset of subdural haematoma such that SoP factor 6(d) is satisfied;
·The course of aspirin treatment was related to the veteran’s ischaemic heart disease; and
·The quantity of smoking required by the SoP factor for IHD (factor 6(c)) is satisfied.
The respondent submits that the veteran had a smoking habit which pre-existed his defence service and was not causally related to that service; therefore any causal relationship to defence service is limited to the contention that the veteran increased his smoking habit as a result of his defence service. However, based on the applicant’s evidence, there was no increase in the veteran’s already established smoking habit between 7 December 1972 to 15 December 1988 (the relevant period of defence service)
The respondent submits that the veteran’s smoking habit was not related to his relevant defence service for the following reasons:
·The veteran started smoking on enlistment in 1968, prior to his defence service in 1972;
·By the time of his enlistment the veteran had a prior employment history and was in his mid-20s;
·The veteran and his first wife had very heavy smoking habits, including smoking at home and in the car;
·The veteran became a military police officer in November 1971, 13 months before his period of defence service, therefore any contended increase in cigarette consumption occurred before the veteran’s defence service;
·The applicant’s evidence is that the amount of cigarettes smoked per day did not change since the veteran first started smoking on a regular basis;
·None of the witnesses knew the veteran at the time he started smoking prior to his relevant defence service in 1972, so no one has first-hand knowledge of how much he smoked before this time;
·There is evidence in the service medical records that the veteran decreased his smoking habit during his defence service;
·The absence of information cannot be filled by inferences which would be no more than speculation (Budge and Repatriation Commission[49]);
·The veteran was not required or expected to smoke as part of his duties as a medical orderly or a military police officer; therefore his defence service was no more than the setting in which his smoking occurred, it did not cause it (McDermott and Repatriation Commission[50]);
·The veteran’s smoking occurred at times that included when he was either married to a heavy smoker or was single; when he married a non-smoker (the applicant) in October 1989 he stopped smoking;
·There is evidence that there were other factors which contributed to the veteran’s stress; specifically, a broken marriage, being a single father to two children, and a ‘rebellious’ son; and
·There is no medical evidence that the veteran suffered from a particular mental health concern related to his defence service.
[49] [2014] AATA 276.
[50] [2011] AATA 714 at [18].
The respondent highlighted the applicant’s evidence that she did not meet the veteran until he was nearing the end of his period of service in 1986, and he stopped smoking shortly after marrying her. The respondent referred to the evidence of Dale Freeman, who acknowledged that the veteran had other stresses in his life in the 1980’s and that the applicant had a positive impact on the veteran regarding his smoking.
The respondent referred to the evidence of Noel Farmer, who did not meet the veteran until 1987 or 1988 when the veteran was already a very heavy smoker, and he incorrectly thought the veteran was still smoking towards the end of his life.
The respondent referred to the evidence of Peter Buckley, who acknowledged that he never served with the veteran or witnessed him do anything. The respondent also highlighted the fact that Dr Palazzo acknowledged that his conclusions were not specific to the veteran personally.
The respondent submits that the Tribunal must be satisfied of a connection between the veteran’s smoking and his defence service. In Kattenberg v Repatriation Commission[51] Emmett J held that it was not necessary for all of the Veteran’s smoking to occur during the relevant period of service, as long as it could be shown that it related to that service in a way outlined in s 196B(14).
[51] [2002] FCA 412.
While not directly analogous to this matter, the respondent referred to the fact that in Repatriation Commission v Tuite[52], Davies J said that if an injury or disease is claimed to have arisen out of, or to be attributable to 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. Burchett and Einfeld JJ, said that if one of the inevitable concomitants of war service is camp life, it must be open to the Tribunal to conclude that a consequence of camp life is a consequence of war service. However, His Honours also noted that “it is true that not everything which occurs while a man is in camp is attributable to his war service”.
[52] (1993) FCR 540.
In Roncevich v Repatriation Commission[53] the High Court of Australia remarked:
…whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends on such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely temporal one…
[53] (2005) 222 CLR 115.
The respondent ultimately submitted that the veteran’s smoking habit did not arise out of, nor was it attributable to, his relevant defence service. Therefore the veteran’s death was not defence-caused.
CONSIDERATION
I must be satisfied that the applicant was a ‘dependent’ of the veteran. I find that the applicant was a dependent as she was his widow.[54]
[54] See definition of ‘partner’ in s 11 of the Act.
I am required to make a finding as to the kind of death suffered by the veteran having regard to s 120A of the Act. This was explained by Selway J in Repatriation Commission v Hancock[55].
[55] [2003] FCA 711 at [9].
In a case such as this it is necessary to have regard to evidence of the death of the veteran. An important document is the death certificate. At the outset of the hearing I voiced my concern because the death certificate that was in the Tribunal documents (T13) could not be read. Fortunately, a more legible copy of the death certificate was provided to the Tribunal. The parties should ensure that a legible copy of the death certificate is provided to the Tribunal in a case such as this.
It is not in dispute between the parties that the cause of death of the veteran was a subacute subdural haemorrhage. The death certificate records that one of the causes of death was a subacute subdural haemorrhage. The hospital discharge summary of 24 April 2016 records that there was a left-sided acute subdural haemorrhage when the veteran passed away.[56] In reliance on the death certificate and the hospital record, I find that the death of the veteran was caused by chronic obstructive pulmonary disease and ischaemic heart disease and this was the kind of death suffered by the veteran. While there may be more than one medical cause for the death of a veteran, the parties have quite rightly in my view not put forward any other cause of death for the purposes of determining this application.
[56] Exhibit A, T-Documents, T11, p. 56.
Ischaemic heart disease – smoking
There is evidence before the Tribunal that the veteran was a heavy smoker. In evidence there is a smoking questionnaire which indicates that the applicant was a regular smoker since 1968, having stopped smoking in October 1989.[57] The applicant stated that the veteran smoked 40 cigarettes per day. Dr Coles in 1983 recommended to the veteran his previous advice to the veteran to cease smoking.[58] In 1987, Dr Rowe had recorded that the smoking habit of the veteran had changed from 60 cigarettes per day to 18 cigarettes per day.[59] While during 1988 there is a record of the applicant having given up smoking,[60] at the time of his discharge in 1988 it was recorded that the applicant was a heavy smoker.
[57] Exhibit A, T-Documents, T15.
[58] Exhibit A, T-Documents, T31, p. 173.
[59] Exhibit A, T-Documents, T31, p. 147.
[60] Exhibit A, T-Documents, T31, p. 150.
Having regard to the evidence before the Tribunal, the respondent has properly agreed that the veteran had smoked at least 20 pack-years of cigarettes before the clinical onset of ischaemic heart disease which satisfies factor 6(c) of SoP No 2 of 2016. I have to determine whether I can be reasonably satisfied that the smoking habit of the veteran “arose out of, or was attributable to” the defence service of the veteran.[61]
[61] See ss 70(5)(a) and 196B(14) of the Act.
Having regard to the evidence before me I cannot be reasonably satisfied that the smoking habit of the veteran “arose out of, or was attributable to” his defence service as required by ss 70(5)(a) and 196B(14) of the Act. The veteran was a mature man aged 30 years of age when he enlisted in the service and so would be less susceptible to peer pressure than if he enlisted as a youth. The applicant was already smoking 2 packs of cigarettes a day for at least 3 years before the defence service of the veteran commenced on 7 December 1972 (see s 68(1) of the Act). I am unable to find that the smoking habit of the veteran “arose out of” the defence service of the veteran.[62] While I accept the evidence of Mr Farmer that the veteran had stress at work, he also adverted to the stress of his broken marriage and the day-to-day stresses of raising two children as a single parent in a Defence environment. Mr Farmer mentioned the difficulties that the veteran had with his son. His daughter also adverted to the stress experienced by the veteran as a single parent. The first wife of the applicant was a heavy smoker and he lived with her until their separation in 1988. I am unable to be reasonably satisfied that the smoking habit of the veteran “was attributable to” the defence service of the veteran.[63]
[62] See ss 70(5)(a) and 196B(14) of the Act.
[63] See ss 70(5)(a) and 196B(14) of the Act.
Subdural haematoma
The applicant relies on factor 6(d) of SoP No 34 of 2011 because the veteran was undergoing a course of treatment with a drug from the specified list within the two weeks before the clinical onset of subdural haematoma. Aspirin is on the specified list: see paragraph 9 of SoP No 34 of 2011. The applicant no longer relies on treatment with warfarin.
The subdural haemorrhage experienced by the veteran before he passed away would come within the definition of “subdural haematoma” in section 3(a) of SoP No 34 of 2011. The applicant relies upon the hospital discharge summary of 7 March 2016 which records that the applicant was prescribed a 100mg tablet of aspirin a night,[64] and the evidence of the applicant that the veteran had taken aspirin right up to the date of his admission and he was a “stickler” for taking this medication. I have no reservations in accepting the evidence of the applicant, which I regard as truthful.
[64] Exhibit A, T-Documents, T32, p. 394.
The veteran was admitted to hospital on 18 April 2016 and passed away on 24 April 2016. The veteran satisfies factor 9(5) of SoP No 101 of 2019 which requires the consumption of 700mg of aspirin within a seven-day period before the clinical onset of subdural haematoma. The applicant is entitled to have her claim considered under SoP No 34 of 2011 having regard to the principles established in Gorton v Repatriation Commission.[65] The aspirin consumption of the veteran also satisfies factor 6(d) of SoP No 34 of 2011 because the veteran was taking at least 700mg of aspirin within the two weeks before the clinical onset of subdural haematoma.
[65] (2001) 110 FCR. 321; [2001] FCA 1194 per Heerey J at 331-333, per Allsop and Emmett JJ at 335 and 337
I have reviewed the medical documents of the veteran. I have concluded that the claim in respect of subdural haematoma cannot succeed because there is no evidence that subdural haematoma was suffered or contracted before or during the relevant service of the veteran.[66] I have reviewed the service medical documents of the veteran, as well as the other medical documents that are in evidence.
[66] See, SoP No. 101 of 2019, subsection 10(2); SoP No. 34 of 2011, paragraph 9.
CONCLUSION
I acknowledge the service the veteran has rendered to his country. However, under the scheme of the Act I am unable to grant this application.
DECISION
I affirm the decision under review.

116. I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 9 June 2020

Date of hearing: 27 February 2019

Date final submissions received: 27 April 2019

Solicitor for the Applicant: Terence O’Connor Solicitors

Solicitor for the Respondent: Sparke Helmore

Date of hearing:	27 February 2019
Date final submissions received:	27 April 2019
Solicitor for the Applicant:	Terence O’Connor Solicitors
Solicitor for the Respondent:	Sparke Helmore