Green and Repatriation Commission - [2001] AATA 280

DECISION AND REASONS FOR DECISION [2001] AATA 280

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/122

VETERANS' APPEALS DIVISION          )
           Re      WINIFRED GREEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member)

Date6 April 2001
PlaceAdelaide

Decision The Tribunal sets aside the decision under review and substitutes a decision that the veteran's death was war caused. Pension is payable to the applicant with effect from 14 October 1998.

(Signed)
W J F PURCELL
(Senior Member)

CATCHWORDS
VETERANS' ENTITLEMENTS - Whether there was a reasonable hypothesis connecting the veteran's death with his operational war service – whether veteran's smoking habit was war caused – whether veteran smoked five cigarettes per day, and ceased smoking within 15 years of the clinical onset of ischaemic heart disease.
Veterans' Entitlements Act 1986 ss120(1) and 120A
Statement of Principles Instrument No.140 of 1996

REASONS FOR DECISION

6 April 2001 Miss WJF Purcell (Senior Member)

This is an application for review of a decision of the Repatriation Commission (the Commission) of 27 November 1998, that the death of Jack Green (the veteran) was not related to his operational war service. The Veterans' Review Board (the VRB) affirmed the decision on 22 June 1999.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with exhibits tendered by the parties. Mr McCarthy, of counsel, appeared for the applicant, who gave oral evidence and called her son and daughter in law, Mr and Mrs Potter as witnesses. Mr Doube, Departmental Advocate, appeared for the Commission.
The veteran served in the Australian Army from 15 October 1941 until 17 May 1945, and rendered operational service, north of parallel 14.5 south latitude, for more than three months, during the bombings of Darwin. He died on 5 March 1991 at the age of 82 years. The causes of death were certified as "cardiac arrhythmia, severe ischaemic heart disease and coronary artherosclerosis". As the veteran rendered operational service, the standard of proof is that of reasonable hypothesis in accordance with s120(1) of the Veterans' Entitlements Act 1986 (the Act), which provides:-
"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.
…
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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 subsection.
…"
The applicant, who is 88 years of age, claimed widow's pension on 25 March 1991, on the basis that the veteran's service contributed to his death because "his nervous condition caused by his war service was responsible for the heart disease which his death certificate said he had for 'years'" (T27/74). She completed a Smoking Questionnaire on 25 March 1991, in which she stated that the veteran was a smoker, but that it was "not known" when he commenced smoking. She stated that after discharge he smoked an "occasional cigar or cigarette only." In answer to question 5, as to whether the veteran ever stopped smoking completely, she stated "he hardly ever smoked at all" (T26/71).
The delegate refused the applicant's claim on 4 June 1991, on the basis that there was no reasonable hypothesis linking the veteran's death with his eligible war service. The applicant did not seek review of this determination.
On 14 October 1998, the applicant lodged a further application for pension, on the basis that the veteran's service contributed to his death by "change of environment, stress of operational service, Post War Trauma" (T5/34). As this claim was lodged after 1 June 1994, s120A of the Act applies, and the hypothesis must be upheld by the relevant Statement of Principles. The applicant completed a VRB questionnaire entitled "Claimant Report – Cigarette Smoking" on 12 October 1998 (T6/39-40). Her response to question 2, concerning when the veteran commenced smoking was, "to the best of my knowledge he commenced 9/5/1941 on enlistment in Army." In answer to question 3, she stated that he smoked "one packet (20) per day", and in answer to question 4, she stated that the veteran began to smoke on a regular basis because of "change of environment, stress of service". She stated also that he stopped smoking in 1981, because of the "onset of diabetes".
On 27 November 1998 the Commission's delegate rejected the applicant's claim. He took into account a smoking history of 20 cigarettes per day from 9 May 1941 to 1981, not causally related to service. The delegate considered that there was no history of any period or periods of cigarette smoking that was causally related to operational service. The applicant applied to the VRB for review of the decision and lodged a Statutory Declaration dated 20 January 1999, which reads, in part, as follows:
"When I filled out the Smoking Form for the DVA War Widow's Pension that I was not thinking straight and I said he my late husband started to smoke on enlistment. Now having thought about it more clearly, I remember my husband telling me that he started to smoke while serving in Darwin. He continued to smoke until 1981 when he gave up on medical advice" (T35/101).

On 22 June 1999 the VRB affirmed the decision of the Commission and on 14 April 2000 the applicant lodged with this Tribunal an application for review.

The applicant maintains that the veteran's death satisfies Factor 5(e) of the Statement of Principle applicable to "Ischaemic Heart Disease" (No. 140 of 1996). Factor 5(e) reads:
"5The 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)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of ischaemic heart disease and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or
…"
The applicant contends that the veteran developed a service related smoking habit of at least five cigarettes per day until the early 1980s, although it would appear that he chose not to disclose his smoking habit to Hospital staff in 1978. Whilst there was no diagnosis by his treating medical practitioners of ischaemic heart disease within 15 years of cessation of smoking, the pathologist who conducted the autopsy concluded that the veteran had suffered from ischaemic heart disease for many years prior to his death. In addition the veteran had ceased smoking less than 15 years before his death. In these circumstances the veteran's death satisfies the Statement of Principles.
The Commission submits that the answers provided by the applicant in the Smoking Questionnaire in 1991 were accurate, and that her answers have been modified over time in an attempt to accommodate the requirements of the Statement of Principles. On the evidence, at best, the veteran was an occasional smoker and an occasional drinker; and the evidence does not satisfy the requirement that the veteran smoked five cigarettes per day, and ceased smoking within 15 years of the clinical onset of ischaemic heart disease.
The applicant gave oral evidence. She is a poor historian and her evidence was disjointed and very difficult to follow. I consider that the inconsistencies in her evidence are attributable to her age, and to her mental frailty, rather than to any attempt by her to exaggerate, or to mislead the Tribunal. The applicant's son and daughter-in-law were not available to give evidence on the day the Hearing was listed, and the matter was adjourned to enable them to give their evidence at a Resumed Hearing. Both Mr and Mrs Potter were most helpful and cooperative witnesses whose evidence was credible, and served to clarify and support the applicant's assertions. I accept Mr and Mrs Potter as witnesses of truth.
The applicant gave evidence that after her first husband died, in early 1953, she married the veteran whom she had met some years earlier. The veteran agreed to help her with the harvest on her fruit block in Berri. She married the veteran in late 1953. She said in evidence that she did not know the veteran before the Second World War; and she could not recall the date when she met him after the War, but it would have been about 1946.
The applicant gave confusing evidence as to when she first became aware that the veteran was a smoker. In the course of her evidence she mentioned seeing the veteran smoking on her fruit block in Berri, early in their relationship, and prior to her first trip with him to Purnong Landing. Later in her evidence she said that she recalled that when she went with the veteran to Purnong Landing she was surprised to see that he was smoking cigarettes whilst they were playing cards. She said that he told her about his experiences as a gunner in Darwin during the bombing raids; and that he said that he began smoking as a result of his wartime experiences. The applicant said that the veteran had told her that he never smoked before the War.
The applicant gave evidence that the veteran smoked cigarettes until approximately 1980. At that time he was diagnosed with high blood pressure, and had suffered nose bleeds and clots in his legs. He was also a diabetic. In relation to his smoking habits, the applicant gave evidence that the veteran smoked "when he felt like it, you know. That was most of the time" (p.25 transcript). She estimated that he would smoke about one packet of cigarettes per day. She said that he put his cigarettes into a silver cigarette case, but she could not recall how often he would fill his cigarette case. In the course of her cross-examination the applicant said that the veteran smoked tailor made cigarettes and did not roll his own cigarettes. She was not sure whether the cigarettes were cork tipped or filter tipped, but the veteran had red/brown colouring on his fingers. She said that she could not recall the brand of cigarettes he smoked, but thought that it might have been "Capstan, in tins".
The applicant gave evidence that when the veteran was working at Turner's Butchers, he would have a couple of cigarettes before work, then smoke again at night. He also smoked cigars. The applicant thought that he "probably smoked a couple of cigarettes" with son Rod (Potter), who was a "heavy smoker", but the veteran did not smoke around Rod and Margaret's children. She said that Rod and Margaret used to give the veteran boxes of cigars and cigarettes for Christmas.
The applicant gave evidence that a few weeks after the veteran's death, she suffered her first stroke, and has now suffered nine strokes. She said that it took her months to get over the shock of the veteran's death; and when she completed a Smoking Questionnaire her recorded answer to question 4, concerning the number of cigarettes the veteran smoked after discharge was, "occasional cigar or cigarette only". This, the applicant says, was not accurate, as the veteran's smoking habit was "more than occasional. He smoked a lot" (p31 Transcript). She said that the inaccurate answers were due to the stroke that she suffered at about this time. During the adjournment, the applicant's treating General Practitioner, Dr Hearn, provided a report dated 8 January 2001, in which he stated that the applicant has suffered transient ischaemic attacks since 4 September 1991, and that there has been no history of a major stroke. I accept however, that the applicant remains utterly convinced that these episodes are strokes, and continues to describe them as such. I accept also the applicant's evidence that the veteran told her that he commenced smoking in Darwin, as a result of his war time experiences.
The applicant called her son Rod Potter. Mr Potter is 64 years of age, and enlisted in the Navy in 1955. He has now retired, but does some work relocating motor homes around Australia. He gave evidence that he began smoking at the age of 17, prior to joining the Navy, and ceased smoking in 1987, after he suffered a heart attack. He said that his father (the applicant's first husband) died on 29 March 1952, and that the applicant, married the veteran in 1953. He said that he met the veteran at Purnong Landing, and saw the veteran smoking at the time. He gave evidence that the applicant is absolutely opposed to smoking, and that the veteran always smoked outside the house. He smoked cigarettes and cigars; and when Mr Potter and the veteran wanted to smoke, they would go outside and smoke in the garden.
Mr Potter said in evidence, that when he was in the Navy, it was his habit to buy duty free cigarettes and cigars, and to give them to the veteran on special occasions, such as birthdays. He recalls the brand of cigarettes he sent as being "Rothmans". He could not recall if he ever gave the veteran tins of cigarettes, but thought that he gave cartons as they were easier to post. He said in the course of his cross-examination, that he could not recall for certain what brands of cigarettes the veteran smoked. The cigarettes were tailor made, not rolled, and that to the best of his recollection the brands the veteran smoked were "Peter Styvesant", "Craven A" and "Rothmans".
Mr Potter gave evidence that his wife, Margaret, also liked to smoke, but had a bad reaction to cigar smoke. The veteran liked to smoke cigars, but gave them up. Mr Potter said that he did not know whether the veteran gave up his cigar smoking because of Margaret; and he could not recall if the veteran stopped smoking cigarettes at the same time he stopped smoking cigars. He said, in evidence, that the veteran had definitely stopped smoking well before he, himself, gave up smoking in 1987. I accept Mr Potter's evidence.
Mrs Margaret Potter said in evidence that she first met the veteran and the applicant, when she was working in the local Chemist Shop. She later married the applicant's son, Rod, and says that she maintained very close contact with the applicant and the veteran, of whom she was very fond. She said that even though she and Rod were posted overseas with the Navy on numerous occasions, she would always come home to Adelaide at least twice a year, as she was very homesick. She said that the veteran was a regular smoker; and that her husband, Rod used to buy him duty free cigarettes on special occasions. She said that because of the applicant's opposition to smoking, she and the veteran always smoked outside. She said, however, that she was upset by cigar smoke which made her feel physically ill.
Mrs Potter said in evidence that she recalled that at Christmas in 1981, the veteran and the applicant came to stay with her at her new home in Bishop Drive. She noted that the veteran was not smoking. She said that she remembered that she and the veteran did not have a cigarette in the garden, even though she, herself, continued to smoke. She said that she never discussed with the veteran his reasons for ceasing smoking; she just accepted the change. She said that she could not recall the number of cigarettes the veteran smoked nor the brand. She said that he had some nicotine staining on his fingers, but added that she also had nicotine stains on her fingers even though she smoked only five cigarettes a day. I accept Mrs Potter's evidence.
I have examined the whole of the evidence carefully and in detail, and I have taken into account the parties' submissions. I am satisfied on the evidence that the veteran developed a war-caused smoking habit; that he smoked at least five cigarettes per day for at least three years before the clinical onset of ischaemic heart disease; and as I am satisfied that the veteran ceased smoking in 1981, about 10 years before the diagnosis of ischaemic heart disease at post mortem, I consider that the veteran's death satisfies Factor 5(e) of the Statement of Principles. The material before the Tribunal raises, therefore, a reasonable hypothesis connecting the veteran's death with the circumstances of the particular service he rendered.
For these reasons the Tribunal sets aside the decision under review, and substitutes a decision that the veteran's death was war-caused for the purposes of the Act. Pension is payable to the applicant with effect from 14 October 1998.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member).
Signed: (F M Boekamp)
Personal Assistant

Date/s of Hearing  30/11/00 & 10/01/01
Date of Decision  06/04/2001
Counsel for the Applicant        Mr C McCarthy
Solicitor for the Applicant         Wadlow Solicitors
Counsel for the Respondent    Mr G Doube
Solicitor for the Respondent    Repatriation Commission