Furlong and Repatriation Commission
[2011] AATA 873
•9 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 873
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0078
VETERANS' APPEALS DIVISION ) Re EVA ALICE FURLONG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean
Lt Col R Ormston (Ret’d) (Member)Date9 December 2011
PlaceAdelaide
Decision The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Furlong’s death was war-caused and therefore Mrs Furlong is eligible to be paid a war widow’s pension, with a date of effect of 15 May 2010.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Widow’s claim – World War II veteran – Veteran died from kidney disease secondary to smoking – Material raises a connection between service and smoking – Contention of a contribution from service to smoking upheld by SoP – Veteran’s death war-caused and eligibility for pension established – Decision under review set aside.
Veterans’ Entitlements Act 1986 ss 8, 7(1), 13(1), 120, 120B, 196B
Statement of Principles Instrument No 103 of 2011
Collins v Repatriation Commission (2009) 177 FCR 280
Re Keenan and Repatriation Commission (1990) 21 ALD 289
Repatriation Commission v Law (1980) 31 ALR 140
Gilkinson v Repatriation Commission [2011] FCAFC 133
Re Everett and Repatriation Commission (1991) 23 ALD 529REASONS FOR DECISION
9 December 2011 Senior Member K Bean
Lt Col R Ormston (Ret’d) (Member)introduction
1.At the time he died, on 14 May 2010, the applicant, Mrs Furlong, had been married to Mr Donald Furlong for 54 years. They were married in 1956 and had two children together.
2.Prior to his marriage, Mr Furlong had served in the Royal Australian Air Force (RAAF), between 28 October 1942 and 3 June 1946. Although he was not deployed on operational service, Mr Furlong experienced some stressful events during his service within Australia.
3.Following her husband’s death, Mrs Furlong lodged a claim for a war widow’s pension, on the basis of a connection between Mr Furlong’s death and his service. Mrs Furlong contended that the condition responsible for Mr Furlong’s death was a form of kidney disease known as “renal artery atherosclerotic disease” and that this was due to Mr Furlong’s smoking, which in turn was related to his eligible service.
4.However, Mrs Furlong’s claim was unsuccessful before the Repatriation Commission (the Commission) and the Veterans’ Review Board (VRB), with the VRB concluding that the material before it did not raise a connection between Mr Furlong’s death and his relevant service as required by the Veterans’ Entitlements Act 1986 (Cth) (VE Act).
5.Mrs Furlong has subsequently applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings.
6.We propose to first outline the applicable legislative scheme, before identifying and addressing each of the issues before us.
the legislative scheme
7.Section 13(1) of the VE Act provides relevantly that where the death of a veteran was “war-caused”, the Commonwealth is liable to pay pension by way of compensation to the dependants of the veteran in accordance with the terms of the VE Act.
8.Section 8 provides relevantly that for the purposes of the VE Act, the death of a veteran shall be taken to have been “war-caused” if:
“(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; or
...
(d) in the opinion of the Commission … the death of the veteran was due 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 veterans’ environment consequent upon his or her having rendered eligible war service ...”
9.Section 7(1)(c) of the VE Act provides relevantly that for the purposes of the VE Act:
“(c) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service ...”
10.Section 120(4) provides in effect that the Commission shall decide a matter arising under the VE Act to its reasonable satisfaction. This section is, however, qualified by s 120B. Section 120B(1) provides that that section applies relevantly to a claim made under Part II of the VE Act that relates to eligible war service (other than operational service) rendered by a veteran. Section 120B(3) provides relevantly that in applying s 120(4) to determine a claim, the Commission (which includes this Tribunal when it reviews a decision of the Commission) is to be reasonably satisfied that the death of a person was war-caused only if:
“(a) the material before the Commission raises a connection between the ... 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 ... death of the person is, on the balance of probabilities, connected with that service.”
11.Section 196B(3) provides relevantly in effect that if the Repatriation Medical Authority (RMA) (being a body established under s 196A) is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of death can be related to eligible service (other than operational service) rendered by veterans, the RMA must determine a Statement of Principles (SoP) in respect of that kind of death setting out the factors that must exist, and which of those factors must be related to service rendered by a person, before it can be said that, on the balance of probabilities, a death of that kind is connected with the circumstances of that service. There is no statutory definition of the concept of a death being “connected with” service, but the reference in s 196B(3) to a “factor related to service” is expounded in s 196B(14). This provides relevantly in effect that a factor causing, or contributing to the death of a person is “related to service” rendered by a person if:
·it resulted from an occurrence that happened while the person was rendering that service;
· it arose out of or was attributable to that service;
·it was contributed to in a material degree by, or was aggravated by, that service; or
·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, but for the rendering of that service by the person, or but for changes in his or her environment consequent upon having rendered that service.
12.Relevantly for the purposes of this matter, the RMA has made a SoP in relation to renal artery atherosclerotic disease, being Instrument No 103 of 2011[1]. That SoP relevantly provides as follows:
[1] This SoP is in relevantly identical terms to Instrument No 33 of 1999, on which the parties addressed us at the hearing.
“Kind of injury, disease or death
3. …
(b)For the purposes of this Statement of Principles, "renal artery atherosclerotic disease" means atherosclerosis of the renal arteries, causing a partial or complete occlusion of a renal artery, and together with one of the following clinical manifestations, namely acute, moderate to severe or poorly controlled hypertension, persistent renal impairment, acute pulmonary oedema or chronic heart failure; or where treatment occurs.
…
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, renal artery atherosclerotic disease or death from renal artery atherosclerotic disease is connected with the circumstances of a person’s relevant service is:
(a) smoking at least 20 pack-years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of renal artery atherosclerotic disease; or
…
Other definitions
9. For the purposes of this Statement of Principles:
…
"pack-years of cigarettes, or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack-year of cigarettes equals twenty tailor-made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor-made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack-year of tailor-made cigarettes equates to 7300 cigarettes, or 7.3 kilograms of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
…”
the issues
13.It follows that the principal issues before us are:
(a) what was the cause of Mr Furlong’s death; and
(b) whether Mr Furlong’s death was war-caused within the meaning of the VE Act.
consideration
14.Before proceeding to address those issues, we should record the fact that there was no issue before us and we accept that Mr Furlong’s service was eligible service rather than operational service, with the consequence that the standard of proof to be applied in relation to Mrs Furlong’s claim is the balance of probabilities. It is in that context therefore that we propose to address the issues outlined above, namely the cause of Mr Furlong’s death and whether that death was war-caused.
What was the cause of Mr Furlong’s death?
15.In claims for pension arising from the death of a veteran, it is necessary to determine as a preliminary question, what was the medical cause of death[2].
[2] Collins v Repatriation Commission (2009) 177 FCR 280 at [41] and [42].
16.Mr Furlong’s death certificate stated that the causes of his death were:
“Renal failure (> 10 years)
Lung metastases (2 years) and
Prostate cancer (4 years)”[3]
[3] T10/58
17.The causes of Mr Furlong’s death were also addressed by Dr Bannister, Medical Co-Director of the Central Northern Adelaide Renal and Transplantation Service, in a report dated 16 July 2010 in which he stated as follows:
“Mr Furlong died of chronic renal failure with death resulting from the metabolic effects of renal failure.
The cause of his renal failure I believe is related to what is called ischaemic renal disease which is secondary to narrowing of the very small blood vessels in the kidney. This is a condition which is extremely common in current smokers or ex-smokers and is related to the effect of nicotine on blood vessels and on the effect of nicotine in causing or exacerbating high blood pressure.
Mr Furlong did not have diabetes and there was no family history of renal disease excluding these possibilities as a cause of his renal failure.
I understand that Mr Furlong commenced cigarette smoking during the war and as a result, I am happy to confirm that smoking which originated during the war was a major contributing factor to his renal failure which led to his death.”
18.On the basis of this material, the respondent conceded and we also accept that the medical cause of Mr Furlong’s death was renal artery atherosclerotic disease, as this is defined in Instrument No 103 of 2011, which we have referred to above.
Was Mr Furlong’s death war-caused?
19.Under s 120B(3)(a) of the VE Act, we are to be reasonably satisfied that the death of the deceased veteran was war-caused only if the material before us raises a connection between his death and his war service, and the contention of a connection is upheld by any relevant SoP.
Does the material raise a connection between Mr Furlong’s service and his death?
20.Mr Crowe, who appeared as advocate for the Commission, contended that the material did not raise a connection between Mr Furlong’s service and his death. In particular, he submitted there was no evidence supporting the proposition that Mr Furlong commenced smoking or increased his amount of smoking as a result of any aspect of his service.
21.We propose to discuss the evidence directed to this issue in more detail in the context of assessing whether the contention of a connection between Mr Furlong’s death and his service is upheld by the applicable SoP. However, we should record at this stage that, having regard to that evidence, we are satisfied that, on the balance of probabilities, a connection has been raised between Mr Furlong’s service and his smoking, and between his smoking and his ultimate death from renal artery atherosclerotic disease. In this regard, we note that Dr Bannister has expressed the opinion that Mr Furlong’s smoking was “a major contributing factor” to his renal disease which caused his death. Further, the material before us suggests that Mr Furlong commenced smoking during his service and, in addition, Mrs Furlong has provided evidence of statements made by Mr Furlong prior to his death which in our view suggest that both the ready availability of cigarettes and the “settling” effect they had when he was under stress were contributing factors to Mr Furlong commencing and continuing to smoke during his service. It is those matters which cause us to be satisfied that the material raises a connection between Mr Furlong’s death and his service.
Is the contention upheld by the SoP?
22.The next question which arises therefore is whether the contention of a connection between Mr Furlong’s death and his service, via his smoking, is upheld by the applicable SoP, Instrument No 103 of 2011.
23.Having regard to the relevant terms of the SoP, it will uphold Mrs Furlong’s contention if it is established that Mr Furlong was smoking at least 20-pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of renal artery atherosclerotic disease and his smoking was related to his service.
24.Mr Crowe did not contend that Mr Furlong did not smoke for at least 20-pack years and we are satisfied on the basis of the information before us that he smoked an amount equating to 20-pack years before he was diagnosed with renal artery atherosclerotic disease, which we infer probably occurred in approximately 2003[4].
[4] T15/64
25.However, Mr Crowe contended that Mr Furlong’s smoking was not related to his service as it was not established on the evidence that Mr Furlong had commenced smoking during his service, or as a result of his service. He submitted that even accepting the availability of cigarettes within the military at the relevant time, and that there was a culture of smoking and peer pressure to smoke, this was not enough to establish the required causal connection between Mr Furlong’s smoking and his service. Mr Crowe submitted that there was no evidence supporting the proposition that Mr Furlong commenced smoking or significantly increased his amount of smoking following a particular stressful event during his service. He submitted further that it was necessary for Mrs Furlong to establish that Mr Furlong’s service had made a substantial contribution to Mr Furlong developing a smoking habit and this had not been established.
26.Mr Keady, who appeared as advocate for Mrs Furlong, acknowledged that there was only very limited material before us relating to Mr Furlong’s smoking habit and the circumstances in which he took up smoking or increased his smoking. However, Mr Keady submitted that the material was sufficient to allow a positive inference to be drawn that Mr Furlong’s smoking was substantially contributed to by his service.
27.In order to resolve this conflict between the contentions of the parties, it is accordingly necessary for us to carefully examine the evidence before us relating to Mr Furlong’s smoking.
28.The main evidence before us directed to this question is the evidence of Mrs Furlong. Mrs Furlong has provided a detailed affidavit and also gave brief oral evidence at the hearing. In her affidavit she said that she and her husband first met in 1955 and were married in 1956. She said that from when they first met until approximately 1960 Mr Furlong was a regular smoker of a packet or more of cigarettes per day. She said that he gave up smoking in about 1960 on advice from his doctor, although he continued to smoke his pipe and occasionally a cigar.
29.As to any connection between Mr Furlong smoking and his service, Mrs Furlong said that in the mid-1990s Mr Furlong had been approached by the widow of another veteran and asked whether he knew if the other veteran had smoked during his service and whether he could estimate the quantity. Mr Furlong apparently reported to Mrs Furlong:
“I told her that although I could not put a figure on it we were both smokers and we smoked more heavily when we were under pressure.”
Mr Furlong also apparently said to Mrs Furlong:
“Why wouldn’t you smoke? We were issued with cigarettes and they helped you settle.”[5]
[5] Exhibit 9
30.As to whether Mr Furlong took up smoking during his service, also before us is a short letter from Mr Furlong’s general practitioner, Dr Wangel, stating that:
“Mr Furlong advised me (while he was alive) that once he joined up with the airforce, he started smoking cigarettes, and that he ‘quit’ some years later.”[6]
[6] Exhibit 4
31.In a report dated 25 August 2011, Dr Bannister also confirmed that Mr Furlong had told him that he “commenced cigarette smoking during the war”.
32.Mrs Furlong also recounted some of the events her husband had told her about which occurred during his service. He had told her about an incident which occurred at Port Pirie, when Mr Furlong gave his seat on a plane home to a young man with a family. The plane had crashed after take-off and there were no survivors. As part of his role as a medical orderly with the RAAF, Mr Furlong assisted with the recovery of the bodies. When she asked him how he coped with this, apparently Mr Furlong responded by saying “I’d just go off by myself and have a smoke, this helped me settle”[7]. Mr Furlong also told her about another occasion during his service whilst he was in Darwin and two other servicemen were killed in a mid-air collision[8].
[7] Exhibit 9
[8] This is also referred to in Exhibit 7, being a document entitled “The Profile of Donald Furlong”.
33.Having regard to the available evidence, in particular the letter from Mr Furlong’s general practitioner and the letter from Dr Bannister dated 25 August 2011, we accept that Mr Furlong reported having commenced smoking during his service and further that he did in fact commence smoking during his service.
34.However, that still leaves the question of whether, on the balance of probabilities, his smoking was causally connected to his service such as to raise a connection between his service and his death.
35.We are mindful that it has been accepted by other Tribunals that matters such as the availability of cigarettes and peer pressure to smoke are relevant to the question of whether a veteran’s smoking habit is causally related to their service. For example, in Re Keenan and Repatriation Commission (1990) 21 ALD 289, the availability of cheap cigarettes satisfied the Tribunal that war service was a contributing cause of the applicant taking up smoking. In Re Everratt and Repatriation Commission (1991) 23 ALD 529, the Tribunal concluded that a causal connection between the veteran’s war service and his heavy smoking was established by a number of matters, including the fact that cigarette smoking was actively encouraged by the Army, the veteran’s service had been long enough for him to become dependent on smoking, and there was social pressure to comply with the habits of the group.
36.Further, we note that in order for a factor to be related to service rendered by a person it is sufficient if the factor was “contributed to in a material degree by ... that service” or “that it arose out of or was attributable to that service”[9]. We note the meaning of “arose out of or was attributable to” was recently considered by the Full Court of the Federal Court in Gilkinson v Repatriation Commission [2011] FCAFC 133, in which the Court expressly rejected the proposition that s 196B(14)(b) “requires the appellant’s operational service to be the dominant or effective cause of the factor causing or contributing to the appellant’s disease”. The Court also referred to the earlier decision of Repatriation Commission v Law (1980) 31 ALR 140, noting that as to the expression “is attributable to” their Honours said the cause need not be the sole or dominant cause and that it was sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributory cause[10].
[9] s 196B(114)(b) and (d)
[10] At [38]
37.On our understanding of the authorities, it follows that, if Mr Furlong’s service contributed to him smoking the requisite amount, then the factor can be regarded as having been related to service as required by the SoP.
38.Ultimately, therefore, the issue before us resolves itself into the question of whether Mr Furlong’s service contributed to him developing a smoking habit such that he ultimately smoked at least 20-pack years of cigarettes.
39.In relation to that question, we accept Mr Crowe’s contention that the mere fact that Mr Furlong commenced smoking during his service is not sufficient to establish a causal connection between smoking and his service.
40.However, in addition to that temporal connection, we have evidence of Mr Furlong commenting on his smoking during the war, by reference to both the availability of cigarettes and the fact that they “helped him to settle”. We also have evidence that he experienced a number of stressful events during his service.
41.In our view, the effect of Mrs Furlong’s evidence of Mr Furlong’s comments is that this amounts to a statement by Mr Furlong that:
(a) the fact that cigarettes were issued to him during his service was a factor in his taking up smoking; and
(b) he had found smoking made him feel better when he was under stress during his service.
42.Whilst we acknowledge that this is not strong evidence of Mr Furlong commencing or increasing his smoking due to service, we are also mindful of the fact that we are required to take into account the difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time or the absence of or a deficiency in relevant official records[11]. Accordingly, the unavailability of Mr Furlong due to his death is a matter to which we must have regard in evaluating the evidence available to us.
[11] s 119(1)(h)
43.Having taken into account all of these matters, on balance, the material before us, in particular Mrs Furlong’s evidence as to Mr Furlong’s comments, satisfies us that the fact that cigarettes were issued to Mr Furlong during his service, the fact that he found smoking helped to relieve the symptoms of the stress suffered during his service, and the fact that he did not smoke prior to his service, all support a conclusion that Mr Furlong’s service made a causal contribution to him taking up smoking, and developing a smoking “habit”. We are also satisfied that the smoking habit Mr Furlong developed during his service ultimately led to him smoking at least 20 pack-years of cigarettes, as required by the SoP. It therefore follows that we consider Mrs Furlong’s contention as to a connection between Mr Furlong’s service and his death is upheld by the SoP.
conclusion
44.We have decided that the cause of Mr Furlong’s death was renal artery atherosclerotic disease, and one of the major contributing factors to that disease was the fact that Mr Furlong smoked during and after his service. We have also concluded that the material raises a connection between Mr Furlong’s service and his smoking, and further that that connection is upheld by the applicable SoP, Instrument No 103 of 2011. It follows that Mr Furlong’s death was “war-caused” within the meaning of the VE Act and Mrs Furlong is accordingly entitled to a war widow’s pension pursuant to s 13(1) of the VE Act. We note that the earliest date from which Mrs Furlong can be paid a pension is 15 May 2010, the day after Mr Furlong passed away.
decision
45.The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Furlong’s death was war-caused and therefore Mrs Furlong is eligible to be paid a war widow’s pension, with a date of effect of 15 May 2010.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean and Lt Col R Ormston (Ret’d) Member)
Signed: .....................................................................................
AssociateDate of Hearing 29 September 2011
Date of Decision 9 December 2011Advocate for the Applicant Mr P Keady
Legacy Club of Adelaide Inc
Advocate for the Respondent Mr A Crowe
DVA
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