French and Repatriation Commission
[2004] AATA 409
•23 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 409
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/374
VETERANS' APPEALS DIVISION ) Re SHIRLEY FRENCH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date23 April 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................(Sgd).......................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – war widow – veteran rendered operational and defence service – cause of death disseminated malignancy and non-small cell carcinoma – smoking habit – no hypothesis found connecting death to service
Veterans’ Entitlements Act 1988 ss 8, 70, 120, 120A, 196A, 196B
Repatriation Commission v McKenna (1998) 28 AAR 7
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Budworth [2001] FCA 1421
Benjamin v Repatriation Commission [2001] FCA 1879
Harris v Repatriation Commission (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445REASONS FOR DECISION
23 April 2004 Mr O Rinaudo, Member
Background
1. This is an application by Mrs Shirley French (the applicant) for a review of the decision of the Veterans' Review Board, dated 13 January 2002. This decision affirmed the decision of a delegate of the Repatriation Commission, dated 16 November 2000, rejecting a claim for a war widow's pension on the basis that the veteran's death was not causally related to service.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1) and the following documentary evidence:
· Exhibit 2 Statement of the Applicant dated 12 August 2002
· Exhibit 3 Statement of Barry Stewart Campbell dated 17 June
2002
3. Mr R Clutterbuck of Counsel represented the applicant and Mr M Smith, Departmental Advocate, represented the respondent. The applicant and Mr Campbell gave oral evidence.
4. The veteran was born on 28 October 1932 and served in the Royal Australian Air Force from 24 January 1949 until his discharge on 7 May 1979.
5. The veteran rendered two periods of eligible service being:
· Operational service in the Far Eastern Strategic Reserve from 11 July 1958 to 14 December 1960
· Defence service from 7 December 1972 to 7 May 1979
6. The applicant met the veteran in early 1954 and they were married on 15 January 1955. The veteran died on 30 October 1999. The cause of death was certified as being from:
"l(a) disseminated malignancy l(b) non small cell carcinoma"
7. At time of his death the veteran had the following service related disabilities:
· Anxiety disorder
· Lumbar spondylosis
· Tinea
·Bilateral tinnitus
8. The veteran's non-service related disabilities were:
· Hypertension
· Cerebrovascular disease
· Peripheral vascular disease
· Chronic airflow limitation
· Death
Issue
9. The issues for the Tribunal are:
(a) whether the veteran’s death was war caused within the meaning of section 8 of the Veterans’ Entitlement Act 1986 (“the Act”); or
(b)whether the veteran’s death was defence caused within the meaning of section 70 of the Act.
Legislative Framework
10. The applicant contends there is a causal connection between the veteran's death and his service in that the veteran began smoking during the course of his service which led to the development of lung cancer. Further, the applicant contends that the veteran developed anxiety disorder during his service which led to an increase in his consumption of cigarettes, resulting in the development of lung cancer.
· Operational Service
11. Section 8 of the Act details the circumstances in which a veteran's death shall be taken to be war-caused. Section 8 relevantly provides:
“8 War-caused death
(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:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
but not otherwise.”
12. In order to succeed the applicant must demonstrate there is a reasonable hypothesis connecting the veteran's condition with war service. Section 120 of the Act states that where such a reasonable hypothesis has been established the Tribunal must determine that it was war-caused unless it is satisfied beyond a reasonable doubt that there is not sufficient ground for making that determination.
13. In determining the reasonableness of the hypothesis section 120A(3) of the Act provides:
“(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); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.”
14. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority ("RMA") and section 196B sets out the functions of the RMA. Section 196B(2) provides the Authority with the power to determine Statements of Principles (SoPs) in respect of injuries, diseases or death, setting out the factors which must, as a minimum, exist before it can be said that an injury, disease or death was caused by a veteran's war service.
15. The RMA, pursuant to section 196B of the Act determined SoPs in respect of Malignant Neoplasm of the Lung and Generalised Anxiety Disorder. The relevant SoPs in this matter are:
· Instrument No 35 of 2001 - Malignant Neoplasm of the Lung
· Instrument No 1 of 2000 - Generalised Anxiety Disorder
16. The applicant has indicated that she seeks to rely on Factors 5(a) and (b) of Instrument No 35, which provide:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the lung or death from malignant neoplasm of the lung with the circumstances of a person’s relevant service are:
(a) for each of the following types of malignant neoplasm of the lung:
(i) squamous cell carcinoma,
(ii) small cell carcinoma,
(iii) malignant neoplasm of undetermined histology,
(iv) large cell carcinoma, or
(v) carcinosarcoma
(A) smoking at least one half of a pack year of cigarettes or the equivalent thereof in other tobacco products, and
(B) smoking commenced at least five years before the clinical onset of malignant neoplasm of the lung;”
17. The applicant has indicated that she intends to rely upon factors 5(a)(vi) and 5(b) of Instrument No 1 of 2000 which provide:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
……
(vi) having a major illness or injury within the two years immediately before the clinical worsening of anxiety disorder; or
(b) for anxiety disorder due to a generalised medical condition only, having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder;”
· Defence Service
18. Section 70 of the Act details circumstances in which a veterans death shall be taken to be defence caused. Section 70 relevantly provides:
“70 Eligibility for pension under this Part
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
……
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c)the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d)the injury or disease from which the member died, or has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e)the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence-caused injury or defence-caused disease, as the case may be;
but not otherwise.”
19. In order to succeed the applicant must demonstrate that there is a nexus between the veteran's condition and his or her defence service. Subsection 120(4) provides that where a connection is raised, the Tribunal must determine the matter to its reasonable satisfaction, that is, on the balance of probabilities.
20. In determining the claim for a defence service death, section 120B(3) of the Act provides:
“(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
21. The RMA, pursuant to section 196B of the Act determined SoPs in respect of Malignant Neoplasm of the Lung and Generalised Anxiety Disorder. The relevant SoPs in this matter are:
· Instrument No 36 of 2001 – Malignant Neoplasm of the Lung
· Instrument No 2 of 2000 – Generalised Anxiety Disorder
22. The applicant has indicated that she intends relying upon Factor 5(a)(A) and (B) of Instrument No 36 of 2001, which states:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the lung or death from malignant neoplasm of the lung is connected with the circumstances of a person’s relevant service are:
(a) for each of the following types of malignant neoplasm of the lung:
(i) squamous cell carcinoma,
(ii) small cell carcinoma,
(iii) malignant neoplasm of undetermined histology,
(iv) large cell carcinoma, or
(v) carcinosarcoma
(A) smoking at least one half of a pack year of cigarettes or the equivalent thereof in other tobacco products, and
(B) smoking commenced at least 10 years before the clinical onset of malignant neoplasm of the lung; or”
23. With respect to Instrument No. 2 of 2000 the applicant seeks to rely upon factor 5(a)(vi) and (b), which provide:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, anxiety disorder or death from anxiety disorder is connected with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
……
(vi) having a clinically significant psychiatric condition within one year immediately before the clinical worsening of anxiety disorder; or
(b) for anxiety disorder due to a generalised medical condition only, having an endocrine, cardiovascular, respiratory, metabolic or neurological disorder, where the disorder is a direct physiological cause of the anxiety at the time of the clinical onset of the anxiety disorder;”
Evidence of the Applicant
24. In her statement dated 12 August 2002, the applicant said:
“I met my husband George French early in 1954 when we were both posted to Amberley. At that time he was an occasional light smoker.
We were married on the 15th January 1955 and by 1958 we had three children. My husband did not smoke in my presence during my pregnancy. Due to financial restraints, we could only afford to purchase a maximum of 2oz of tobacco a fortnight, therefore his smoking was restricted.
On the 11th of July 1958, two days after our third child was born he left for Malaya. In August 1958, the children and I relocated to Malaya. His duties included attachment on mobility and duty crew, it was during this time I noticed he had become nervous and his smoking had increased.
In July 1959, during overseas service he was promoted. I believe the added responsibility and stress of the promotion, in addition to the situation in Malaya, added to his nervous condition. At this time his smoking increased.
In Christmas of 1972, George’s smoking had increased to at least 40 cigarettes per day, he appeared nervous and appeared to be suffering from an anxiety disorder.
In 1973, George was posted to Melbourne Support Command, where he was responsible for handling spare assessment for F111. The new position increased his stress level due to the large turnover of men who had worked in the same position for 4 years until he was the only remaining team member. At this time, his heavy smoking lead to an addiction.
When George was posted to Williamtown, his anxiety levels had increased. I considered him to have been on the verge of a nervous breakdown. During this time, I noticed his smoking increased. During the posting at Williamtown, George suffered from a back condition which caused him pain, his anxiety and nervous condition remained constant. He continued to smoke heavily.
After George was discharged he tried several times to cease smoking, but the habit which was started in the RAAF was too difficult to control. Due to the deterioration of his health, George ceased smoking in 1999.
The smoking questionnaire dated 22 October 1999 was completed 8 days prior to his death by an advocate. During this period of time, George was extremely ill and heavily medicated. He would have been incapable of providing accurate answers to the questions. In fact, George would not have known what he was signing.”
Evidence of Barry Campbell
25. In his statement, dated 17 June 2002, Mr Campbell said:
“I am former Warrant Officer Barry Stewart Campbell (A32861) who was enlisted on 24 January 1949 as a member of the third intake of RAAF apprentices at RAAF Ground Training School (later, RAAF Technical College) Forrest Hill, NSW, and served at that base until I graduated as an airman electrical fitter in late November 1951. The late George Malcolm (Mal) French, for whose widow this letter is written, was also a member of No. 3 Apprentice Squadron which consisted of males aged from 15 years to under 18 years who came predominantly from families of very moderate means.
There are many reasons why cigarette smoking was not frequent among RAAF apprentices in that era of great austerity when the world had not recovered from the economic ravages of World War II, Australia was beset by serial coal, rail and power strikes and was forced to maintain a substantial budget-draining military force because of perceived external “threats”.
First-year RAAF apprentices received the princely sum of six shillings (60 cents) on payday each fortnight throughout 1949 to spend at their personal discretion and payment was increased moderately for the second year, 1950, and again, for the final year, 1951. Not surprisingly cigarettes were way down the cash-conversion wish-list of cash-strapped teenagers.
In the event that some did smoke, and they had to be either 18 years old or present written parental approval to do so legally, most would have been financially limited to a few cigarettes per day or possibly two ounces of tobacco each fortnight at the expense of other youthful goodies.
My RAAF Apprenticeship was anything but a smokers’ haven. It was three spartan years of physical, mental, academic and technical training that stripped off flab and made men out of boys. We were certainly fit. Having played Rugby League on Saturdays followed by (undefeated) Rugby Union on Sunday’s with Mal French in RAAF apprentice teams in the respective Wagga Wagga competitions during 1951, I have no hesitation stating that, as Mal graduated in the top-rating technical group from his squadron and was also an excellent all-round sportsman, he finished his apprenticeship in excellent physical and intellectual condition -- one of the best who served Australia in exemplary manner for decades thereafter. I hope Australia now displays similar loyalty to his widow.”
Submissions
26. In his written submissions, Mr Clutterbuck, Counsel for the applicant, put forward the following facts in reliance upon the hypothesis raised:
(a) During the course of the veteran's relevant operational service the veteran smoked cigarettes stating in a smoking questionnaire (T4/19):
“When you turned 18 - 1950 - you were given cigarette coupons (had to get written permission of parents which took a bit of doing as they did not want me to smoke). But al, RAAF personnel did (it was the thing to do) "
(b) The veteran smoked from December 1951 until his discharge in 1972 at a rate of 20 cigarettes per day and smoked at a rate of 40 cigarettes per day between 1972 and 1981.
(c) The veteran reduced his smoking in 1981, after suffering a mild stroke, to 10 cigarettes per day. The veteran further reduced his smoking in October 1993 due to heart surgery.
(d) In December 1993 the veteran recommenced smoking at the rate of 30 cigarettes per day stating in a smoking questionnaire that "can't stop smoking".
(e) On the veteran's medical discharge records (T4/6) it is noted that the veteran was smoking 20 cigarettes per day.
27. Mr Clutterbuck further submitted that the veteran was suffering from hypertension, had an anxious personality and suffered anxiety, nervousness, periods of tension, headaches, agitation, tension, a feeling of not being happy in his job as well as anxiety. In this regard Counsel referred to the report of Dr Boulnois who diagnosed the veteran as suffering from chronic generalised anxiety disorder.
28. Thus, Mr Clutterbuck put forward the following hypothesis:
“The need to determine this matter with respect to the SOP for generalised anxiety disorder arises out of what the applicant asserts to be the causal link between the smoking by the veteran and the veteran's death (SOP malignant neoplasm of the lung). A factor that must exist is that the anxiety disorder must be connected with the circumstances of the veteran's relevant service (Factor 5(b)) such that the veteran suffered an anxiety disorder due to his generalised medical condition. It was a "prominent anxiety disorder" satisfying those definitions contained within paragraph 8 of the SOP. This is supported by the medical evidence of Dr Julian Boulnois. He confirms the veteran suffered a nervous breakdown in or about 1972 and was treated with anxiety drugs. This arose out of his having rendered a four year posting on the F111C Project in the United States. He confirms the veteran to have suffered from a chronic generalised anxiety disorder, having done so at least in the early 1970 's.
The veteran also suffered an anxiety disorder described in Factor 5(a)(vi), such that he had a clinically significant psychiatric condition immediately before the clinical worsening of his disorder (refer Dr Boulnois). Additionally, Factor 5(b) is relevant because the applicant contracted a respiratory disorder which was a direct physiological cause of the anxiety (an increase in smoking).
Because of the veteran suffering anxiety and his increase consumption of tobacco and the demonstrated suffering by the veteran of lung cancer, the applicant qualifies under factor 5(a)(A), being one who smoked at least one half of a pack year of cigarettes or, alternatively factor 5(a)(B) that smoking commenced some five years before the clinical onset of the malignant neoplasm of the lung. A pack year is described as a consumption where it equals twenty tailor made cigarettes (the standard cigarette pack content) per day for a period of one calendar year or 7,300 cigarettes. Relevant service is that of operational service and the applicant rendered that operational service as defined in the Act.
The veteran rendered his defence service (section 68) on or after the 7 December 1972, rendering continuous full time service as a member of the defence force permitting the applicant to be a recipient of a pension under part IV of the Act. Pursuant to section 6F, the veteran was rendering operational service for the purposes of this application at the relevant time.”
29. Mr Smith, Departmental Advocate for the respondent, submitted the veteran had smoked a total of 48 pack years. This conclusion was reached by reference to the following material:
·A history provided by the veteran dated 22 August 1994 (T4/26-27);
·A history provided by the veteran dated 22 October 1999 (T4/19-20);
·Out patient consultation which refers to the veteran smoking 20 cigarettes per day (T4/11 A);
·Medical Examination Record dated 6 March 1979 (T4/6) which states the veteran was smoking 20 cigarettes per day;
·Personal History of the veteran (T4/15) stating he smoked 20 cigarettes per day;
·Medical Report of Dr Hayes dated 19 September 1993, stating the veteran smoked 5 cigarettes per day;
·Report of Mr Phillip Walker dated 18 November 1993 noting an abstinence from smoking.
30. Based on the information in this material the advocate for the respondent drew the following conclusion:
“The above references revealed the normal difficulties with memory, but nevertheless indicate a fairly common smoking pattern; one which started off light, then gradually rose to a base level of twenty cigarettes per day, which presumably represented his body's requirement for nicotine. It then fluctuated around that level under the influence of extraneous factors. However, the basal level was reached prior to the commencement of eligible service, due to the ending of his apprenticeship, and the normal progression of the addiction. Indeed, it would be improbably that it would take seven years to reach that level.”
31. It was submitted by Mr Smith that Factors 5(a) and (b) of the SoPs for malignant neoplasm of the lung were not satisfied because the veteran had a smoking history of at least 37 pack years which commenced in approximately 1950 due to peer example and was then followed the typical fluctuations of an addiction.
32. It was further submitted that the veteran's temporary increase in smoking was the result of mental problems and could not be considered defence-caused. Mr Smith referred to the decision of Repatriation Commission v McKenna (1998) 28 AAR 7 as authority for the proposition that the Tribunal is not estopped by the previous acceptance of anxiety disorder, in 1994, as defence-caused. He submitted that the original decision was based on Dr Boulnois' report dated 30 August 1994 (T4/p21-23) which does not satisfy the current or previous SoPs because onset was prior to the commencement of defence service.
Discussion and Decision
33. A preliminary matter that must be dealt with is consideration as to the application of the appropriate SoP. The SoPs in force at the time of the original decision were Instruments No. 29 and 30 of 1996 in respect of Malignant Neoplasm of the Lung and Instruments No. 48 and 49 of 1994 in respect of Generalised Anxiety Disorder.
34. The Claim in relation to the veteran's conditions was lodged before the revocation and re-issue of the relevant SoPs for each type of eligible service. Because the earlier SoPs are not drafted in terms more favourable to the applicant, in her claim, the current SoPs (that is, Instrument No 35 and 36 of 2001 in respect of Malignant Neoplasm of the Lung and Instrument No 1 and 2 of 2000 in respect of Generalised Anxiety Disorder) are the applicable SoPs and the Tribunal so finds (see: Repatriation Commission v Keeley (2000) 98 FCR 108).
· Operational Service
35. In considering this application, the Tribunal has had regard to the steps to be followed in cases such as this, as set out in the decision of Repatriation Commission v Deledio (1998) 83 FCR 82 where the Full Court (Beaumont, Hill and O'Connor JJ) said at 97-98:
“….. we would restate the course which the tribunal is to take in a case, such as the present, (i.e. one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
36. The Tribunal must first consider, to its reasonable satisfaction, the characterisation of the cause of the veteran's death and the medical conditions which the applicant claims he suffered: see Repatriation Commission v Budworth [2001] FCA 1421 and Benjamin v Repatriation Commission [2001] FCA 1879
37. There is no dispute that the veteran suffered from malignant neoplasm of the lung and having considered the evidence before it, the Tribunal so finds. There is also no dispute between the parties that the veteran's death was the result of disseminated malignancy and non small cell carcinoma and the Tribunal so finds.
38. The veteran was a smoker for many years. Therefore, the Tribunal accepts that the material points to an hypothesis connecting the death of the veteran to particular service rendered by the veteran. Accordingly step one is satisfied.
39. In considering step two the Tribunal must determine whether there is in force SoP. In this case the relevant SoPs are Instrument No 35 of 2001 in respect of Malignant Neoplasm of the Lung and Instrument No 1 of 2000 for Generalised Anxiety Disorder.
40. Moving then to step three of the Deledio steps. In considering step 3 the Tribunal notes the explanation of Finn J as to the proper operation of step 3 in Harris v Repatriation Commission (2000) 31 AAR 270 at 282:
“It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that ‘one of the disputed facts happens also to be a component of an SoP’.”
41. In Arnott v Repatriation Commission(2001) 32 AAR 445 at 452-453 the Full Federal Court, at paragraph 27, said:
“However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the ‘particular claim’ fits the ‘template’ laid down in the SoP. As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage.”
42. In this case the applicant argues that during the veteran’s relevant service the veteran smoked cigarettes. The applicant argues that there is a reasonable hypothesis connecting the veteran’s smoking habit and subsequent death with the veteran’s operational service in accordance with the relevant SoP.
43. The Tribunal is satisfied that the material before it points to the hypothesis being consistent with the template found in the SoP and accordingly must be regarded as reasonable.
44. It is necessary then, in accordance with step four, to now consider all of the evidence and determine if the Tribunal is satisfied beyond reasonable doubt that the death of the veteran was not war-caused. If the Tribunal is not so satisfied, then the claim must succeed.
45. Factor 5(a)(A) and (B) of Instrument No 35 of 2001 requires that as a minimum the factors that must exist before a reasonable hypothesis will be said to exist connecting the veteran's death from malignant neoplasm of the lung with the circumstances of the veteran’s relevant service are, where the veteran smoked at least one half of a pack year of cigarettes or equivalent in other tobacco products and smoking commenced at least 5 years before the clinical onset of lung cancer.
46. A pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calender year or 7,300 cigarettes.
47. Material before the Tribunal discloses a long history of smoking by the veteran. During the period of operational service (1958-1960) the veteran was smoking at least 20 cigarettes a day
48. The material before the Tribunal indicates that the veteran began receiving treatment of lung cancer during 1997 (Exhibit 1 folio 40). The Tribunal considers that the clinical onset of malignant neoplasm would have been around this period.
49. The Tribunal needs to be satisfied beyond reasonable doubt that the lung cancer was not war-caused. The veteran’s smoking habit predates operational service - commencing in the early 1950's.
50. The Tribunal has considered the evidence with regard to the veteran's smoking habits, and notes: -
· Questionnaire completed by the veteran on 22 August 1994 states that he commenced smoking in around June 1950 noting that this was a "couple of months after 18th Birthday". In the same questionnaire he states that he was smoking at least 20 cigarettes from December 1951 until this increased to 40 cigarettes in late 1972. This consumption, as stated by the applicant, is consistent over a 21 year period. He does not state that there was an increase once operational service commenced.
· Second questionnaire - completed 22 October 1999, eight days before his death. The Tribunal does acknowledge that the veteran's competence would have been impaired due to his declining health. He states he began smoking on a regular basis in 1949, stating he smoked 20 cigarettes per day which were issued to him to help steady his nerves and when he had drinks (T4/26). The information is consistent with the earlier questionnaire completed in 1992.
· The evidence of applicant's wife, as set out in her statement, is that she met her husband in early 1954 and said that he was an occasional light smoker. During 1955 - 1958 due to financial restraints would not smoke more than 2oz a fortnight. When he relocated to Malaya in 1958 his smoking increased. Evidence does not say at what rate the veteran was smoking.
· Barry Campbell, in his evidence, said the veteran began smoking when he was an apprentice with the RAAF but because smoking was infrequent because salary was low, purchasing large quantities of cigarettes was not common. Those who did smoke were limited to a few cigarettes per day or possibly two ounces of tobacco each fortnight. Evidence does not mention how frequently the veteran smoked in his presence.
51. The Tribunal prefers the evidence of the veteran as set out in his questionnaires. The veteran completed these questionnaires. They are to be preferred over the observations of the applicant's wife and Mr Campbell. The veteran himself was the person who could best assess his consumption.
52. The Tribunal notes also that the veteran’s stated consumption of 20 cigarettes per day between 1950 and 1972 is consistent with the other material before the Tribunal.
53. Therefore, the Tribunal finds that the veteran's smoking habit pre-dates his operational service and that the veteran had an addiction long before operational service. In respect of operational service there is no evidence to support the contention that the veteran’s smoking started during or was influenced by his service.
54. The Tribunal is therefore satisfied beyond reasonable doubt that there is no sufficient ground for determining that the late veteran's death from lung cancer was war-caused.
55. Generalised anxiety disorder is not a relevant issue when considering the applicant’s operational service as anxiety disorder was not diagnosed until after operational service.
· Defence Service
56. The test, which the Tribunal must apply in determining whether the late veteran’s death was defence caused, is that of reasonable satisfaction (section 120(4) of the Act).
57. The veteran rendered Defence service from 7 December 1972 to 7 May 1979.
58. The applicant’s contention is that factor 5(a) of Instrument No 35 of 2001, which requires the veteran's death to be from malignant neoplasm of the lung where the veteran smoked at least one half of a pack year of cigarettes or equivalent in other tobacco products and smoking commenced at least 10 years before the clinical onset of lung cancer, is met. A pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calender year or 7,300 cigarettes.
59. It is accepted on the evidence that the late veteran’s lung cancer had its clinical onset during 1997. Accordingly, the late veteran must have commenced smoking at least 10 years prior. That would mean that the late veteran would have had to have started smoking at least in 1987. The late veteran commenced smoking well before this. The Tribunal has found that the veteran commenced smoking in 1950.
60. Accordingly the Tribunal is satisfied that on the balance of probabilities there is no connection between the veteran's service and death from lung cancer.
61. The Applicant also raises the issue of the veteran’s increase in smoking in the 1970s and says that this was because of generalised anxiety disorder, which was defence-caused.
62. Smoking increased during the 1970s as a result of generalised anxiety disorder. Records show an increase from 20 to 40 cigarettes per day.
63. Generalised Anxiety Disorder was accepted by the respondent as defence-caused in 1994. This decision was based on the evidence of Dr Boulnois as set out in his report dated 30 August 1994. In that report Dr Boulnois says:
“In summary I have little doubt that Mr French adequately fulfils the category of an individual suffering fro0m chronic generalised anxiety disorder, and has obviously done so at least since the early 1970’s.”
64. The respondent says that it was wrong to accept this condition as the onset was “prior to the commencement of defence service”. Mild depression is noted at T4/11A as early as September 1972. Defence service commenced in December 1972.
65. Dr Boulnois notes that:
“It is probably important to point out that in 1972, whilst in the RAAF, and having returned from a four year posting on the F111C project in the US, that he suffered ‘a nervous breakdown’, was treated with anti anxiety drugs, and was ultimately transferred out of Melbourne to Williamstown. Mr French accounts for his problems at that time as relating to his increasing work loan [sic] in a number of different areas as members of the ‘cell’ in which he was trained were transferred to other bases leaving him as the only person left behind.”
66. The Tribunal is reasonably satisfied that the veteran commenced to suffer from Generalised Anxiety Disorder prior to defence service. The Tribunal is therefore reasonably satisfied that the short increase in the veteran’s smoking habit from 20 to 40 cigarettes per day was not defence caused.
67. Accordingly, the Tribunal finds that the hypothesis connecting the veteran’s death with defence service is not made out to the Tribunal’s reasonable satisfaction and accordingly the applicant’s claim cannot succeed. The decision under review is affirmed.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 8 May 2003
Date of Decision 23 April 2004Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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