Goodfellow and Repatriation Commission
[2004] AATA 1312
•9 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1312
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/107
VETERANS' APPEALS DIVISION ) Re ROBERT JAMES GOODFELLOW Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Dr E T Eriksen, Member Date9 December 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS - operational service - claim that ischaemic heart disease and diabetes mellitus were war-caused - rate of smoking - inconsistencies in oral and documentary evidence as to smoking history - no sufficient grounds for determining that the claimed conditions were war-caused - decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 65 ALD 609
REASONS FOR DECISION
9 December 2004 Deputy President D G Jarvis and
Dr E T Eriksen, Member1. Robert Goodfellow was engaged in operational service in Vietnam on board HMAS Sydney for a period of 19 days from 17 November to 5 December 1969, and for a further period of 17 days from 16 February to 5 March 1970. On 11 April 2002, he lodged a claim for pension in respect of heart attack, diabetes and anxiety. The Repatriation Commission recorded diagnoses of ischaemic heart disease, diabetes mellitus and anxiety disorder in response to his claim, but subsequently rejected his claim for these conditions.
2. Mr Goodfellow subsequently sought a review from the Veterans’ Review Board (“VRB”). The VRB confirmed the rejection of his claim. Mr Goodfellow has applied to this Tribunal to review the decision of the Commission, as affirmed by the VRB, in respect of the claims for ischaemic heart disease and diabetes mellitus. He has not pursued his claim for anxiety disorder.
Issue before the Tribunal
3. The issue before us is whether the above two conditions of ischaemic heart disease and diabetes mellitus are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”). Both parties accept the diagnoses of Mr Goodfellow’s conditions.
Background
4. Mr Goodfellow was born on 23 May 1950. He joined the Royal Australian Navy when he was 16, and served in the Navy from 11 July 1966 until 8 July 1971.
5. Mr Goodfellow did recruit training at HMAS Leeuwin. He was then posted to HMAS Sydney to continue his training. This posting, according to his service record, was from 30 June to 3 December 1967. Mr Goodfellow completed his training as a radio operator and intended to make the Navy his career, at least until he became eligible for a pension at the age of 40.
6. He was a non-smoker before joining the Navy. He started smoking during his Navy service, and became a heavy smoker until he was finally able to give up smoking in 1995. His claim in the present proceedings is, in essence, that his smoking was related to his operational service, and caused his heart condition and diabetes. We will refer in detail to his assertions later in these reasons.
Evidence Before the Tribunal
7. We will now narrate a summary of Mr Goodfellow’s evidence, but we will not at this stage make any findings on matters relevant to the issue of whether Mr Goodfellow’s asserted conditions were war-caused.
8. Mr Goodfellow started smoking during his junior recruit training at HMAS Leeuwin. The older persons there looked after the new recruits, and they introduced him and others to smoking. There was peer group pressure for him to start smoking.
9. When he was at HMAS Leeuwin he probably bought one packet of cigarettes a week. He was only paid $24.00 a fortnight as a junior recruit, and after the Navy banked $12.00 he only had $12.00 a fortnight to spend. He would smoke three or four cigarettes a day.
10. When he went to Sydney to join HMAS Sydney he had a little more money to spend, and increased his smoking to only five a day, as far as he could remember. He was reasonably sure about his level of smoking at that time, because he was playing Australian rules football for two different teams in Sydney, and was training regularly and was keeping fit. In addition, because of his family commitments he did not have a lot of money left over to spend on cigarettes.
11. His smoking continued at this level until he was posted to HMAS Yarra, where he remained, according to his service record, from 10 April to 30 September 1969 (exhibit A1, T4, page 15). The Yarra went to sea for a few weeks during this period, and while they were at sea Mr Goodfellow was able to buy duty-free cigarettes. By then he would buy packets of 20, and he increased his smoking to 10 a day.
12. He was then posted to HMAS Sydney from 30 September 1969 until 13 July 1970. The Sydney left for Vietnam soon after, on 17 November 1969. Mr Goodfellow was distressed by his visits to Vietnam. On his second visit, he and another radio operator were sent ashore to set up a radio base on the beach of Vung Tau Harbour. He was issued with a rifle and ammunition, and as far as he remembered, he stood guard while his colleague operated the radio. He felt isolated and concerned. There were Vietnamese soldiers in jungle camouflage gear on shore, and he and other crew members had been told not to trust Vietnamese soldiers. None of the Australian soldiers who were embarking or disembarking from the Sydney had ammunition, and he felt responsible for their safety.
13. Mr Goodfellow also witnessed the use of scare charges which were dropped over the side of the Sydney when it was in Vung Tau Harbour, and saw mortar explosions on the northern section of the delta forming Vung Tau Harbour. He was uncertain as to whether he witnessed these events on his first or second visit to Vietnam.
14. When the Sydney entered and left Vung Tau Harbour on each visit, the ship was in shut-down mode for four days. During this period Mr Goodfellow had four hours on duty and four hours off duty, and he spent a lot more time working than usual. He was in a radio room working with six other people. He smoked in this radio room while working.
15. Mr Goodfellow’s evidence as to his smoking after he was posted to the Sydney on 30 September 1969 was confused. He first said that it was hard to remember whether or not he increased his smoking between his posting and before he went to Vietnam (which was less than two months later), although duty-free cigarettes were not available during that interval. He also could not say whether he decreased smoking during this interval. He later said that he thought his smoking stayed at about 10 per day during this interval.
16. On 13 July 1970, which was a little over four months after his return from Vietnam, Mr Goodfellow was posted to HMAS Harman, a shore base in Canberra. He remained there for about a year until his discharge from the Navy on 8 July 1971. He said that by the time he got to HMAS Harman he was smoking 30 cigarettes a day, and could remember buying cigarettes in cartons from the canteen. In answer to a question from the Tribunal, he said he started buying cigarettes in cartons when he was at sea “I think”, emphasising these qualifying words. However, when he was later asked by the Tribunal to relate his smoking at this time to packets of cigarettes, he said that when he went to HMAS Harman he was smoking one packet a day; and it was accepted by Mr Swan, who appeared as counsel for Mr Goodfellow, and Mr Crowe, the advocate for the Commission, that in those days packets contained 20 cigarettes, and larger packets of 30 cigarettes were not then available.
17. Mr Goodfellow tried to give up smoking in 1990, and finally succeeded in giving up smoking in 1995 with a lot of help from his wife, and after his health became very bad. He had been smoking 30 to 35 cigarettes a day before he gave up smoking.
Evidence as to Applicant’s Medical Conditions
18. Mr Goodfellow had a heart attack on 10 March 2002. He received emergency treatment in the Royal Adelaide Hospital, and two stents were inserted into his coronary arteries. He then returned to Clare where he lived, but had to return to Adelaide on two occasions, after short periods out of hospital, and a further stent was required. Exhibit A1 includes a report from Dr Leo Mahar, the Director of Cardiology of the Royal Adelaide Hospital, and this report confirms that Mr Goodfellow has quite significant coronary artery disease. The report concludes:
“The major risk factors for accelerated coronary artery disease, are high blood pressure, high cholesterol, diabetes, cigarette smoking and family history. Mr Goodfellow has been a heavy smoker (taken up I believe during his time in the services). He would like to have this considered as a strong contributing factor of early development of his coronary artery disease. I firmly believe that.” (exhibit A1, T20, page 79).
19. Unfortunately Mr Goodfellow had a further heart attack only three or four weeks prior to the hearing before us, and he was in hospital for about a week, and further stents were inserted.
20. Mr Goodfellow has also developed diabetes, and according to his claim form (exhibit A1, T5, page 34), he first became aware of this in 1987. He said that the doctor who was then treating him first endeavoured to control his diabetes with diet, but after a few weeks of this, he was given tablets. He continued to take tablets for his diabetes until after his heart attack, when Dr Mahar advised the injection of insulin to minimise the risk of further heart problems. Mr Goodfellow has continued to treat his diabetes with insulin since that time.
Documentary Evidence in Relation to Smoking
21. The documentary evidence in relation to Mr Goodfellow’s smoking history is confused and inconsistent. We summarise it as follows.
(a) In a smoking questionnaire form dated 11 April 2002 (exhibit A1, T6, page 41), Mr Goodfellow stated that he first started smoking on a regular basis on commencement of his junior recruit training in July 1966 at HMAS Leeuwin. He recorded further that he was smoking 30 cigarettes per day at the end of his smoking, and smoked 1 cigar and a pipe occasionally. Section 2 of the form was to be completed if the smoking habit changed over time. It required a table to be completed for each time a major change in smoking happened. The table contains three columns with headings, setting out the information required, and we reproduce below these headings and the information provided by Mr Goodfellow which was written across all three columns, (exhibit A1, T6, page 42).
Date of Change (month and year)
New amount smoked (number per day/ounces per week)
Reason for change
COMMENCED SMOKING APPROX 15 PER DAY AT RECRUIT TRAINING & GRADUALLY INCREASED TO 30 PER DAY OVER TIME – GENERALLY SMOKED A PACK A DAY FROM START TO FINISH. We note that Mr Goodfellow’s response does not refer to his visits to Vietnam, and is inconsistent with his evidence before us that these visits caused a significant increase in his smoking habit.
(b) On 10 May 2002 Mr Goodfellow completed an additional information sheet containing details of the new disabilities he was then claiming. This sheet included, amongst other things, the following question and answer:
“How do you believe your service caused, contributed to, or aggravated this disability?
SOLD CIGARETTES AT 20¢ PER PACKET DURING MY DAYS AT SEA & BELIEVE THAT AT AN EARLY AGE MY SMOKING WAS PROMOTED BY THIS. THIS HAS LED TO HARDENING OF MY ARTERIES – 3 STENTS HAVING TO BE PLACED IN MY ARTERIES OVER THE LAST MONTH.” (exhibit A1, T6, page 43)
Mr Goodfellow had provided the same response to question 17 of his original claim form dated 11 April 2002 (exhibit A1, T5, page 34).
We note that the first time when Mr Goodfellow went to sea was during his posting on HMAS Yarra which was prior to his first trip to Vietnam, and once again there is no reference to his service in Vietnam or any suggestion that the stress of his visits there caused an increase in his smoking (although duty-free cigarettes were available during each of his two visits to Vietnam on board HMAS Sydney, and at least to that extent, the information he provided is not inconsistent with his claim in the present proceedings that his smoking increased during his operational service).
(c) Mr Goodfellow was referred to a psychiatrist, Dr M Ewer, after he lodged his claim for pension. In a report dated 27 September 2002, Dr Ewer said:
“Mr. Goodfellow smoked twenty cigarettes a day before his first trip to Vietnam and twenty cigarettes a day after his first trip to Vietnam.” (exhibit A1, T11, page 56)
Mr Goodfellow could not remember saying that to Dr Ewer, but accepted that Dr Ewer would have recorded what he told him. The level of smoking before he went to Vietnam recorded by Dr Ewer is inconsistent with Mr Goodfellow’s evidence before us, and this history also suggests that his first visit to Vietnam did not cause an increase in his smoking.
(d) In a file note dated 20 February 2003 (exhibit A1, T14, page 62) the delegate of the Commission who made the original decision to reject Mr Goodfellow’s claim records that she rang Mr Goodfellow to find out when he increased his smoking habit, and she further records that he replied as follows:
“… he was smoking 15 cigarettes p/day then increased to 20 p/day when they brought out packs of 20’s etc. I asked if there was any other reason he may have increased and he said “no”. …” (exhibit A1, T14, page 62).
Once again, we note that there is no reference to the increase being related to his visits to Vietnam.
(e) Finally, in a further form dated 17 July 2003 headed “Claimant Report – Cigarette Smoking” (exhibit A1, T20, page 74), Mr Goodfellow recorded that when he first started smoking he regularly smoked:
“3/day increasing to 15/day at the end of recruit training.”
We note that the reference to 15 per day at the end of recruit training is inconsistent with Mr Goodfellow’s evidence before us.
In section 2 of the same form he provided further information in answer to questions asking him to complete the table for each time a major change in smoking happened. This table and his responses were as follows (exhibit A1, T20, page 75).
Date of Change
(month and year)New amount smoked (cigs per day/ounces per week)
Reason for change 1968 20/day cigarettes cheap – 20¢ pkt earning more money
1970 30/day to 35 per day began drinking more to cope ŵ stress and smoking increased as well.
1995 Nil medical advice.
(The above information can be more clearly understood by referring to a further form of the same dated headed “Alcohol Questionnaire”, where Mr Goodfellow was asked to provide details of the changes in the amount of alcohol he consumed; according to his response, the first date of a change was 1970, and the reasons for the change were said to be stress after his tour to Vietnam: exhibit A1, T20, page 78).
The change in 1968 to 20 cigarettes per day is once again inconsistent with Mr Goodfellow’s evidence before us. The information as to the change in 1970 is also inconsistent with his evidence before us, in that (by reference to the information in the alcohol questionnaire) it appears that the increase in his drinking and smoking occurred after his 1970 tour to Vietnam (i.e. his second visit), and not during his visits.
Evidence of Applicant to VRB
22. In Mr Goodfellow’s evidence to the VRB he again said that the increase in his smoking was after his return from his second trip to Vietnam (exhibit R1, page 9, line 16). Once again, this is inconsistent with his evidence before us.
Applicant’s Submissions
23. Mr Swan for the applicant contended that Mr Goodfellow’s evidence raised an hypothesis that his smoking was related to his trips to Vietnam, and that the extent and duration of his smoking were such that under the relevant Statements of Principles (“SoPs”) made under the VE Act, the conditions on which his claim was based were related to his operational service. Mr Swan acknowledged that Mr Goodfellow was a poor historian, but submitted that we should not be satisfied beyond reasonable doubt that Mr Goodfellow’s smoking was not war-caused.
24. In considering Mr Swan’s submissions, we take into account the explanations which Mr Goodfellow gave in evidence as to the various discrepancies in the documentary material to which we have referred above. As to the first smoking questionnaire form (exhibit A1, T6, pages 41-42), Mr Goodfellow said that he completed this form within weeks of his heart attack, and he was in a poor mental state, and the form was obviously incorrect because he was not smoking 15 cigarettes per day at recruit training and he could not have afforded to do so. He said that he found his interview with Dr Ewer extremely stressful. He said that he received the telephone call from the delegate on a mobile phone at a time when he and his wife were driving between Adelaide and Clare; he thought she wanted an exact date which he was not able to give her, and as he felt she needed an answer “right away” he told her to put down that he increased his smoking when the packs of cigarettes increased. He also said that a pension officer from the Vietnam Veterans’ Federation had assisted him to fill out the second smoking questionnaire, but had told him that he could not change what was in the first questionnaire, and he did not have enough time to make a “considered opinion”. He also made the comment generally that his memory was poor, and it was very difficult to put dates and numbers of cigarettes on his smoking habit over the years. He said that he had not properly understood the forms, and had not been adequately assisted in completing them.
Legislative Background
25. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
26. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
27. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
28. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
29. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which 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.
Note: See subsection (4) about the application of this section.”
30. Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
31. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
32. The claimed conditions of ischaemic heart disease and diabetes mellitus are the subject of SoPs. We will set out the relevant provisions of the SoPs below. We note that where a SoP exists we must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“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.”
33. We have considered all of the material before us, and note that the Commission does not dispute the contention made by Mr Swan on behalf of Mr Goodfellow that the material points to an hypothesis connecting the conditions of ischaemic heart disease and diabetes mellitus with Mr Goodfellow’s operational service. That hypothesis is that Mr Goodfellow increased his smoking during one or both of his visits to Vietnam.
34. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of the conditions in question, namely ischaemic heart disease and diabetes mellitus. The SoP in respect of ischaemic heart disease is Instrument No. 53 of 2003 (the “IHD SoP”), and is the SoP currently in force. We must apply this SoP notwithstanding that it was not in force at the time when the claim for pension was lodged: Repatriation Commission v Gorton (2001) 65 ALD 609. It has not been suggested that the earlier SoP in force at the time of the original decision by the Commission was more beneficial to Mr Goodfellow, and this SoP (being Instrument No. 38 of 1999) is therefore not relevant. There is also a SoP in respect of diabetes mellitus, namely Instrument No. 82 of 1999 as amended by Instrument No. 9 of 2001 and Instrument No. 91 of 2001 (“the Diabetes SoP”).
35. We now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before us, but without making any findings of fact at this stage of the process.
36. Under clause 4 of the IHD SoP, at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) by the veteran. Clause 5 then provides relevantly as follows:
“Factors
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; or
…”
37. Under clause 4 of the Diabetes SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the veteran. Clause 5 provides relevantly as follows:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diabetes mellitus or death from diabetes mellitus with the circumstances of a person’s relevant service are:
…
(c)in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or
…”
38. The expression “pack years of cigarettes or the equivalent thereof, in other tobacco products” is defined in clause 8 of each SoP. It is common ground that the quantity of cigarettes smoked by Mr Goodfellow between 1966 and when he gave up smoking in 1995 meets the quantities referred to in the relevant factors of each SoP. It is also accepted that the clinical onset of ischaemic heart disease was 10 March 2002, being the date of Mr Goodfellow’s first heart attack. The information before us as to the date of clinical onset of diabetes mellitus was not challenged, and it appears that the clinical onset of this condition was in or about 1987. The Commission accordingly conceded that the first three steps in Deledio have been satisfied by the material before us.
39. We now turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before us, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused.
40. We have recounted in some detail the evidence and material before us as to Mr Goodfellow’s smoking history. We are satisfied that when he gave his evidence to us, Mr Goodfellow was honestly endeavouring to recollect his smoking history, but it was apparent that he was finding it very difficult to accurately recall the numbers of cigarettes which he smoked at various times. In addition, his evidence was inconsistent with the documentary material before us, as we have noted above. That documentary material was itself inconsistent and (except perhaps in some cases only inferentially) did not indicate that his smoking was related to his operational service.
41. We note that the total duration of Mr Goodfellow’s operational service was comparatively short, and, indeed, the distress which he described appears to be related more to his second visit to Vietnam, so that the return journey at sea would have occupied little more than a week. The time at which (according to his oral evidence) he could remember an increased level of smoking, namely when he went to HMAS Harman, was more than four months after his return from Vietnam. Mr Swan made it clear that the claim was based on an increase in smoking during the visits to Vietnam, and was not based on any assertion that the level of smoking had increased after Mr Goodfellow had returned from Vietnam and in consequence of the stress which he said he experienced during his visits to Vietnam.
42. For the reasons referred to above, we find that the evidence before us as to Mr Goodfellow’s smoking history is very unreliable, and we do not accept it. We find that the remaining evidence before us does not relate Mr Goodfellow’s smoking to his operational service, and indeed the documentary evidence before us indicates that his smoking, whilst it clearly arose from his service in the Navy, was not related to his operational service.
Conclusion
43. In all of the circumstances, we are satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the conditions of ischaemic heart disease and diabetes mellitus were related to Mr Goodfellow’s operational service (as opposed to his service in the Navy).
Decision
44. For the above reasons, we affirm the decision under review.
I certify that the 44 preceding paragraphs are a true
copy of the reasons for the decision herein of Deputy President D G Jarvis and Dr E T Eriksen, MemberSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 29 November 2004
Date of Decision 9 December 2004
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Advocate for the Respondent Mr A Crowe
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