Gary Bernard Hooper v Repatriation Commission

[2007] AATA 54

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 54

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/91

VETERANS' APPEALS  DIVISION		)
Re		GARY BERNARD HOOPER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date9 February 2007

PlaceHobart

Decision

1. The Tribunal sets aside part of the decision of the Repatriation Commission of 29 April 2004 and, in substitution therefore, decides that the applicant presently suffers from ischaemic heart disease and that condition is a war-caused disease within the meaning of s9 of the Act with effect from and including 27 July 2003.

The matter is remitted to the respondent for the purpose of determining the appropriate rate of disability pension payable to the applicant.

..............................................

Deputy President

CATCHWORDS

Veterans' Affairs – disability pension – applicant rendered operational service in Royal Australian Navy – whether applicant suffering ischaemic heart disease – whether a reasonable hypothesis connecting condition to operational service – whether increased smoking during operational service – whether consistent with template in relevant Statement of Principles – whether satisfied beyond reasonable doubt that no sufficient reason for determining that applicant’s condition is war-caused – decision set-aside

Repatriation Commission v Deledio (1998) 83 FCR 82

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Colin Mack Cooke (1998) 52 ALD 1

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Hill (2002) 64 ALD 582

Veterans' Entitlements Act 1986 – ss9, 20(1), 120(1),(3),(4), 177(2), 196B(2)

REASONS FOR DECISION

9 February 2007   The Hon R J Groom (Deputy President)

2. This is an application to review part of a decision of the Repatriation Commission (“the Commission”) made on 29 April 2004, refusing to accept ischaemic heart disease as a war-caused disease within the meaning of that term in s.9 of the Veterans’ Entitlements Act 1986 (“the Act”). That part of the decision was affirmed by the Veterans’ Review Board (“the VRB”) on 3 April 2006.

3.      The hearing was held in Hobart on 14 December 2006. Mr D Skinner, an RSL advocate, appeared for Mr Hooper. Mr M Castle appeared for the Commission. Mr Hooper gave oral evidence. The Tribunal had before it the T Documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.

4.      The applicant served in the Royal Australian Navy (“RAN”) from 27 October 1958 to 26 October 1970.  His eligible war service, which is also operational service, was from 7 April 1960 to 28 April 1960, from 6 May 1960 to 20 May 1960 and  from 6 June 1960 to 16 June 1960.  All of that service was on HMAS Melbourne serving with the Far East Strategic Reserve.  He was also involved in operational service  from 24 March 1961 to 17 April 1961 on HMAS Melbourne in South Vietnamese Waters.

5. It became clear in the course of the hearing that the applicant relied on his periods of operational service. The standard of proof is therefore governed by s120 of the Veterans’ Entitlements Act 1986 (“the Act”)  applied in accordance with the four stages of analysis as prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at pages 96 – 97.

6. The first issue to be decided by the Tribunal is whether the applicant suffers the claimed condition. This issue is to be determined to the Tribunal’s “reasonable satisfaction” which is the ordinary civil standard of proof. See s120(4) of the Act and Benjamin v Repatriation Commission (2001) 70 ALD 622 and Repatriation Commission v Colin Mack Cooke (1998) 171 FCA.

7.      In the course of the hearing, Mr Castle for the respondent quite properly conceded that the applicant does in fact suffer from the claimed condition of ischaemic heart disease.     On the basis of that concession but also on the written material before it, the Tribunal is satisfied to the required standard of reasonable satisfaction that the applicant does suffer from the claimed condition.

8.      The next issue for the Tribunal to determine is whether there is a sufficient link connecting the condition suffered by the applicant and his operational service with the RAN.  

9.      In order to establish that link the Tribunal must first be satisfied on all of the material before it that an hypothesis has been raised connecting the applicant’s conditions to the relevant circumstances of his operational service.  No question of fact finding arises at this stage of the analysis.

10.     The material pointing to the hypothesis relied upon by Mr Hooper was detailed in his oral evidence before the Tribunal.  Mr Hooper said that he enlisted in the Royal Australian Navy when he was 17 years of age.  This was in October 1958.  He did not smoke at that time.  He said that he commenced smoking at Christmas time in 1958.  Between that time in 1958 and his commencement of operational service in April 1960 the applicant said he smoked 10-15 cigarettes a day.  Sometimes it was less than that quantity.  He described his smoking habit at that time as “social”.  He said that his smoking habit significantly increased from April 1960.  This was at the time of his first period of operational service.  He was then 19 years of age.  The applicant said that he then increased his smoking to “60-80 a day”.

11.     The applicant gave the following answers to Mr Skinner during examination- in-chief:

“Was that massive increase gradual, or did it happen ‑ ‑ ‑?‑‑‑No, virtually in a couple of days;  slowly - not slowly increase, increase rapidly.

And what reasons do you put that down to?‑‑‑Stress;  the fact that when we - I was working in machinery places and engine rooms, we used to come up every hour to the portholes and change our overalls and look out and you could see the firing on the shoreline; we were about two mile offshore.  And the planes used to strife the beaches there.  And one day I saw an American plane get shot down there.

Whereabouts was this?‑‑‑Sarawak Bay, I think it was called, in Malaysia.

You mentioned that you saw the planes hit?‑‑‑Yes, you could see the flashes and then they fired their rockets in to the shore.

And how often did this occur?‑‑‑Every day.

Every day?‑‑‑Mm hm.

In all those periods of operational service, you were in action ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ every day?  You had access to the portholes to get fresh air and you said you could observe the shells flashing?‑‑‑Yes, you could see the flashes, the return fire, and the actual rockets exploding when the planes were shooting them.

And your reaction to ‑ ‑ ‑?‑‑‑Well, you get a bit uptight, really.

And for what reasons would you be uptight?‑‑‑The stresses;  you were working below decks, and you don't know what's happening above deck;  anything could happen.

So there was this feeling of apprehension of ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ of not knowing what was going on?‑‑‑That's right.

Was smoking common in the area in which you worked?‑‑‑Yes, yes;  everyone smoked on board.

Right?‑‑‑On the mess deck of 80 and everyone smoked, passive smoked a fair bit as well.

Could you describe how confined you were in the areas that you worked below decks?‑‑‑Very small areas;  small rooms, very small.

And ‑ ‑ ‑ 

THE D.PRESIDENT:   What was your actual job there?‑‑‑Electrician.

Electrician.  And you smoked while you were working, did you?‑‑‑Yes.

MR SKINNER:   How would you describe your smoking habit?‑‑‑Probably chronic.

Pre-increase, until such time as ‑ ‑ ‑?‑‑‑Only a social smoker, before.

And ‑ ‑ ‑?‑‑‑After, I became addicted, I suppose”.  (See Transcript pages 5 and 6)

12.     In cross-examination Mr Castle suggested to the applicant that he had previously made a signed written statement which was inconsistent with his oral evidence at the hearing.   Mr Castle, referring to the document at pages 72 and 73 of the T Documents, asked the applicant as follows:

“... on page 2, you were asked about change in your smoking habit; you say "gradual increase over a period of time, 20 to 60, reason for change:  habit addiction."  And that is something completely different from what you have told this Tribunal here today, isn't it?‑‑‑Not really.

I am sorry;  I would say that there is a big change between "gradually" and "instantly"?‑‑‑Well, over a two-day period, I went from 20 to 60 to 80;  that's gradually to me.

So this document you have signed is totally wrong?‑‑‑No, that's gradual to me”.  (See Transcript page 8)

13.     Having regard to the whole of the material before it, the Tribunal is satisfied that the material points to the following hypothesis connecting the applicant’s condition with the circumstances of his operational service.  That hypothesis is that whilst on operational service aboard HMAS Melbourne he experienced stressful events including working below deck in the engine rooms on the vessel in very confined spaces and observing through port-holes military action taking place including rockets exploding and planes firing in return.  These stressors caused the applicant to increase his smoking to 60-80 cigarettes per day from April 1960.  He continued to smoke at that rate until 1988.  The hypothesis contends that the increase in smoking to that rate has been a causative factor in the onset of his ischaemic heart disease. 

14. It is not sufficient to merely raise an hypothesis. The hypothesis advanced must also be “reasonable” within the meaning of s120(3) of the Act. The hypothesis to be reasonable must be consistent with the “template” found in any relevant Statement of Principles (“SoP”) as determined by the Repatriation Medical Authority (RMA) pursuant to s196B(2) of the Act.

15.     There is in force a relevant SoP for Ischaemic Heart Disease.  It is SoP No 53 of 2003 as amended by SoP No 9 of 2004.  That SoP relevantly provides as follows:

“5.      The factors that must as a minimum exist before it can be said that a         reasonable hypothesis has been raised connecting ischaemic heart disease or death     from ischaemic heart disease with the circumstances of a person’s relevant service      are:

...
           (e) where smoking has ceased prior to the clinical onset of ischaemic heart disease,

(i) smoking at least one pack year but less than five pack years of cigarettes or                 the equivalent        thereof, in other tobacco products, and the clinical onset of   ischaemic heart disease has occurred within five years of cessation; or
  (ii) smoking at least five pack years but less than 20 pack years of cigarettes   or the      equivalent thereof, in other tobacco products, and the clinical onset of                  ischaemic heart disease has occurred within 15 years of cessation; or
  (iii) smoking at least 20 pack years of cigarettes or the equivalent thereof, in                    other tobacco products before the clinical onset of ischaemic heart disease ...”

16.     “Pack year of cigarettes” is defined in paragraph 8 of SoP No 53 of 2003 as:

“... 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 7,300 cigarettes...”

17.     When considering whether an hypothesis is reasonable the Tribunal is not concerned with questions of proof of raised facts, nor is it required to choose between competing medical opinions.

18.     The Tribunal finds that the date of the onset of the applicant’s ischaemic heart condition was February 2003.  (see the diagnostic report by Dr E Cawood dated 12 February 2004 at T21).  He ceased smoking in 1988 (see T16).

19.     On the material before the Tribunal the applicant satisfies the required rate and period of cigarette smoking and therefore the minimum requirement set out in paragraph 5(e)(iii) of the relevant SoP.  The evidence suggests the applicant smoked at least an additional 40 cigarettes per day from a date in 1960 until 1988 as a result of events during operational service.  Those figures equate to approximately 56 pack years which is well in excess of the minimum factor required by clause 5(e)(iii) of the relevant SoP.  The Tribunal finds that the hypothesis has significant support in the evidence before it and is consistent with the “template” in the SoP and is therefore reasonable.  It is noted that Mr Castle also concedes this point in his submissions to the Tribunal.  (see Transcript p.14).

20. As the hypothesis is reasonable the Tribunal must consider, pursuant to s120(1) of the Act whether it is satisfied beyond reasonable doubt that the applicant’s condition was not a “war-caused disease” within the meaning of s9 of the Act. Under this unique provision it is necessary that the Tribunal be satisfied to the stringent criminal standard of proof. The Tribunal is so satisfied if it is satisfied beyond reasonable doubt either that one or more of the facts supporting that hypothesis does, or do, not exist or that a fact inconsistent with that hypothesis does exist. (See Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 and Repatriation Commission v Hill (2002) 69 ALD 582 at 595).

21.     The applicant’s credibility came into question during the course of the hearing and is a central issue.  Mr Castle contended that “... Mr Hooper’s smoking history is not the one he has given here in the witness box but the one that is documented and doesn’t relate directly to his four periods of operational service”.  (see Transcript p.14).

22.     There is clearly a degree of inconsistency between Mr Hooper’s evidence before the Tribunal and the “clinical notes” (at T5, p.17) and the “Claimant Report – Cigarette Smoking”.  (T16, p.72).

23.     In the 1965 “clinical notes” it is recorded that “he had been smoking 60 cigarettes/day for 3 years ...”.  This suggests he started smoking 60 cigarettes a day in about 1962 not 1960 as stated in oral evidence.

24.     In the 2003 “Claimant Report – Cigarette Smoking” signed by the applicant it states that he started smoking “on entry into the navy in 1958” and that he “commenced at 20 per day.  Gradually increased to 60 per day – ceased 1988”.  It states that the reason for the increase was “habit addiction”.  The quantity of cigarettes he was smoking when he commenced the habit and the reason given also appear to be inconsistent with the applicant’s own evidence.

25.     The Tribunal notes however that there is consistency between the applicant’s evidence that he started smoking after joining the RAN and the comments in the 2003 “Claimant Report – Cigarette Smoking” written record.

26.     The applicant’s explanation of the words “gradually increased” which appeared in the 2003 “Claimant Report – Cigarette Smoking” was far from  convincing.  He said in evidence “... over a two day period I went from 20 to 60 to 80;  that’s gradual to me”.  (Transcript p.8).  He said another person had filled out the form for him. 

27.     The Tribunal is concerned about the accuracy of a number of statements made by the applicant in his evidence to the Tribunal.  It is not satisfied that the applicant’s smoking increased “virtually in a couple of days” as he claimed in evidence.  His explanation of the meaning of “gradually” was also far from convincing.  The Tribunal also doubts his claim that he saw evidence of military action “every day” during his operational service.  The Tribunal considers that claim to be an exaggeration.

28.     It does not follow, however, that because there appear to be some inconsistencies and exaggeration by an applicant that he is therefore wholly unworthy of belief.  Having observed the applicant in the witness box and after giving careful consideration to the manner in which he gave his evidence, the Tribunal is inclined to the view that the applicant’s evidence that he substantially increased his smoking rate not long after commencing operational service because of events and experiences during that service, is likely to be reliable.

29.     The question to be answered by the Tribunal at this final stage of the process of analysis is whether it is satisfied beyond reasonable doubt that increased smoking sufficient to satisfy the SoP did not occur or that the increase was not causally related to events and experiences during the applicant’s period of operational service.  The Tribunal finds, after considering the whole of the evidence before it, that it is not satisfied to the required standard that these factors did not occur.

Conclusion

30. It follows from the foregoing discussion and findings of the Tribunal that the Tribunal, for the purposes of s120(1) of the Act, is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s condition is war-caused.

31. Accordingly, the Tribunal, in accordance with s120(1) of the Act determines that the applicant’s condition of ischaemic heart disease is a “war-caused disease” within the meaning of s9 of the Act.

32. The date of effect of that determination is 27 July 2003 (being 3 months prior to the lodgement of the applicant’s claim). (see ss20(1) and 177(2)of the Act).

Decision

33. For the above reasons, the Tribunal sets aside that part of the decision of the Repatriation Commission of 29 April 2004 and, in substitution therefore, decides that the applicant presently suffers from ischaemic heart disease and that condition is a war-caused disease within the meaning of s9 of the Act with effect from and including 27 July 2003.

34.     The matter is remitted to the respondent for the purpose of determining the appropriate rate of disability pension payable to the applicant.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed: R Hunt (Administrative Assistant)

Date/s of Hearing  14 December 2006
Date of Decision  9 February 2007
Representative for the Applicant    Mr David Skinner, RSL Advocate
Counsel for the Respondent          Mr Michael Castle
Solicitor for the Respondent          Department of Veterans' Affairs