Griffiths and Repatriation Commission
[2007] AATA 1871
•18 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1871
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/986
VETERANS' APPEALS DIVISION ) Re MARIE ROSALINE GRIFFITHS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Ms Robin Hunt and Member, Dr Maxwell Thorpe Date18 October 2007
PlaceSydney
Decision The decision under review is set aside.
..................[Sgd]......................
Ms Robin Hunt
Presiding Member
CATCHWORDS
VETERANS’ APPEALS – war widows’ pension claim – operational service and kind of death agreed – death due to malignant neoplasm of the pancreas – claim of war-caused smoking history - hypothesis that war-caused smoking led to malignant neoplasm of the pancreas – finding of reasonable hypothesis –no sufficient reason to find smoking not war-caused – decision set aside.
LEGISLATION
Veterans’ Entitlement Act 1986 s 8, 120 and 120ACASES
Byrne v Repatriation Commission [2007] FCAFC 126
Bull v Repatriation Commission (2001) 188 ALR 756
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Administrative Appeals Tribunal [2007] FCAFC 111
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Woodward v Repatriation Commission (2003) 131 FCR 473
Repatriation Commission v Owens (1996) 70 ALJR 905
Blair v Repatriation Commission [2005] FCA 1076
Repatriation Commission v Dunn [2006] FCA 1703
East v Repatriation Commission (1987) 74 ALR 517
Repatriation Commission v Bey (1997) 79 FCR 364REASONS FOR DECISION
18 October 2007 Senior Member, Ms Robin Hunt, and Member, Dr Maxwell Thorpe
summary
1. Mrs Marie Rosaline Griffiths is the applicant in this matter and is claiming a widow’s pension related to the death of her husband. Mrs Griffiths’ late husband performed operational service during World War II while employed in the merchant navy. The applicant says her late husband developed a war-caused smoking habit which ultimately brought about or contributed to his death. The respondent accepts that Mrs Griffiths’ husband died of metastatic carcinoma of the pancreas, for which there is a statement of principles. Under this statement of principles, heavy smoking related to service is accepted as a possible cause of the condition. The respondent does not, however, accept that her late husband’s smoking habit was war-caused.
2. After considering all the material before, us we have decided that we are not satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the death of the late veteran was not war-caused. This means the applicant’s claim is successful. Our further reasoning is set out below.
introduction
3. The respondent has not questioned that the applicant married the veteran, Mr John Reginald William Griffiths, on 14 September 1967. Also accepted is that Mr Griffiths was employed on a ship as an Australian Mariner during World War II and that he was engaged in operational service for the period from 26 June 1944 to 29 October 1945. He died over forty years later, on 15 August 1988. The parties agree that the cause of Mr Griffiths’ death was as recorded on his death certificate:
Metastatic carcinoma of head of pancreas
3 months
4. Mrs Griffiths seeks review of the decision refusing her the widows’ pension in answer to her claim lodged on 27 May 2005. On 3 June 2005, a delegate of the Commission refused this claim and the Veterans’ Review Board (VRB) affirmed the Commission’s decision on 11 July 2006, finding that the veteran’s death was not war-caused. The respondent advised us that Mrs Griffiths made a similar unsuccessful claim on 29 November 1989. However, the respondent’s file containing records related to the 1989 claim has since been destroyed.
The Issue
5. We have to decide whether the death of Mrs Griffiths’ late husband was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (the Act).
consideration and findings
6. The circumstances in which a death is war-caused are set out in section 8(1) of the Act. Section 8 provides, in part:
(1) Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)…;
(d)…; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, or eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or…
7. In the decision under review, the Veterans Review Board (VRB) identified the hypothesis advanced before it as “the veterans’ death was due to a material contribution from a war related smoking habit.” As to whether the smoking was related to his service, the VRB noted that Mr Griffiths was 32 years old at the start of his operational service and it was not satisfied that he did not have a smoking habit which started well before his service. The VRB found no evidence to suggest that his smoking habit started or increased due to an unsuccessful attack on his ship. In all, it formed the view there was insufficient evidence that the smoking habit was linked to the period of operational service.
Kind of death
8. The first necessary step, before applying the provisions about causation, is to identify the “kind of death” suffered. We accept and find that the cause of death was the agreed condition of “metastatic carcinoma of the head of the pancreas”.
Was the death war-caused?
9. The next step is to determine whether Mr Griffith’s death was war-caused. This involves considering all the material before us and determining whether that material points to a hypothesis connecting the death with the circumstances of the particular service rendered by Mr Griffiths. No question of fact finding arises at this stage. If no material pointing to a hypothesis arises, the application must fail.
10. If the material does raise a hypothesis, we must then ascertain whether there is in force a Statement of principles (SoP) determined by the Authority under subsections 196B(2) or (11). If a SoP is in force, we must then form the opinion whether the hypothesis raised is a reasonable one according to the SoP. As the Full Court of the Federal Court expressed the process in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, the hypothesis will be reasonable “if the hypothesis fits, that is to say, is consistent with the "template" in the SoP”. The Court went on to say:
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.
11. Should we find the hypothesis reasonable, we must then consider under section 120(1) whether we are satisfied beyond reasonable doubt that the death was not war-caused. If we are not so satisfied, this claim will succeed as the cause of death is already established.
12. The procedure set out in Deledio has been endorsed in several Federal Court cases and has been consistently followed in the Tribunal. See Byrne v Repatriation Commission [2007] FCAFC 126, Bull v Repatriation Commission (2001) 188 ALR 756, Bushell v Repatriation Commission (1992) 175 CLR 408, Byrnes v Repatriation Commission (1993) 177 CLR 564, Collins v Administrative Appeals Tribunal [2007] FCAFC 111, Repatriation Commission v Codd [2007] FCA 877, Repatriation Commission v Deledio (1998) 83 FCR 82, Repatriation Commission v Hancock (2003) 37 AAR 383, Woodward v Repatriation Commission (2003) 131 FCR 473.
Hypothesis
13. Firstly, we identified the applicant’s hypothesis. In her written submissions, Mrs Griffiths based her case on the hypothesis that –
(a) her later husband’s operational service led to his commencing to smoke;
(b)his smoking contributed to his contracting carcinoma of the head of the pancreas; and
(c) the carcinoma of the head of the pancreas was the cause of his death.
Subsequent submissions suggested that Mrs Griffiths also put that Mr Griffiths may already have been smoking but that his smoking increased during the period of operational service.
Applicable statement of principle
14. Secondly, we identified a statement of principle which must be taken into account in determining the reasonableness of the applicant’s hypothesis. The SoP in force in respect of malignant neoplasm of the pancreas is instrument no 45 of 2005. See section 120(1) and (3) and 120A(1) and (3).
15. Next, we considered whether the hypothesis is consistent with the “template” in SoP 45 of 2005, in accordance with the procedure explained in Deledio. In answering this question, we examined whether the material before us pointed to the minimum factor or factors required by the SoP in order to connect Mr Griffiths’ kind of death with his service. A prescribed factor depended on by the applicant is set out at paragraph 6(a) of the SoP and reads:
Smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the pancreas, and where smoking has ceased, the clinical onset has occurred within twenty years of cessation
16. Pursuant to clause 5 of the SoP, factor 6(a) as to smoking, must be related to the service rendered by Mr Griffiths. Further, “pack years of cigarettes, or the equivalent thereof in other tobacco products” is defined in paragraph 9 of the SoP to mean “… consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year” or equivalent measures set out in the definition. In addition, an applicant must show that “where smoking has ceased, the clinical onset of malignant neoplasm has occurred within the twenty years following that period”.
The material before us
17. Mr Griffiths’ kind of death was metastatic carcinoma of the pancreas over a period of three months, according to the death certificate. In other words, Mr Griffiths had metastaces for 3 months before his death. Mrs Griffiths’ evidence was that her husband stopped smoking in 1980, when he became ill, which was eight years before his death. There was no evidence before us of the date of clinical onset of the carcinoma of the pancreas but, as the metastaces occurred 3 months before death in August 1988, the carcinoma of the pancreas was present before August 1988. It is therefore reasonable to say that the carcinoma was present and that clinical onset of the carcinoma or malignant neoplasm of the pancreas occurred within the prescribed 20 years of cessation of smoking.
18. In her further evidence, Mrs Griffiths stated, “All I know is that he smoked and that he did it in times of stress and that he tried many times to stop, couldn’t”. In a smoking questionnaire completed by Mrs Griffiths on 18 May 2005, she stated that her husband smoked 15-20 cigarettes per day in 1965. Further, she wrote, “He tried many times to give up smoking but did not until becoming ill in 1980”. Mrs Griffiths told Professor Mattick, according to his report before us, that her husband cut back to ten cigarettes per day but he had returned to a heavier rate of smoking. She could not tell the professor when her husband cut back but said it may have been approximately 1967. This was two years after the date of her marriage to the veteran. The professor recorded that Mrs Griffiths told him her late husband would increase to 12 or 15 cigarettes a day and then cut back again. While Mr Griffiths’ rate of smoking varied, according to Mrs Griffiths’ recollection and he was constantly trying to reduce his intake, it is reasonable to say that her husband smoked around the requisite level of 20 per day until 1980.
19. Although Mrs Griffiths contends that her late husband developed a heavy smoking habit during and as a result of his operational war service, her knowledge is based only on what her late husband told her. Mrs Griffiths did not meet and marry Mr Griffiths until approximately 20 years after his operational service. Mr Griffiths was around 32 years of age when he joined the Merchant Navy. The death certificate indicates that Mr Griffiths previously married at the age of 22 years (that is, in1934) and that his son, John, was born two years later in 1936. The death certificate indicates that Mr Griffiths’ daughters, Jeanette and Marilynne, were born in 1947 and 1953 respectively. The applicant married Mr Griffiths in 1965.
20. On 27 May 2005, Mrs Griffiths stated in her claim form:
I believe my husband’s smoking habits which greatly increased during his war service in the Merchant Navy contributed to his death…
21. In her form of application for review by the Tribunal, Mrs Griffiths stated her reasons for seeking a review were:
Stressful experiences of being on board Merchant Ships at time of attacks by Japanese subs led to an increase in smoking habit.
Not sufficient money to smoke a great deal prior to WWII service…
22. In her statement of facts and contentions for the review Mrs Griffiths again set out:
…the veteran developed a heavy smoking habit during and as a result of his war service.
23. Mrs Griffiths gave oral evidence by telephone as well as supplying a written statement. Mrs Griffiths’ evidence to the Tribunal about her knowledge of her husband’s smoking during service was that her husband told her he increased his smoking.
24. Mrs Griffiths agreed in response to questions that her husband told her he loved being in the merchant navy and that he loved the tug boats in particular. Mrs Griffiths did not know, when asked, what her husband had earned as a carpenter before joining the merchant navy. She also did not know how much he earned while he was in the merchant navy but thought it was not much. To a question about what brand of tobacco he smoked in the navy, she responded that she thought he rolled his own but had no idea about a brand. She also said she did not know where he got the tobacco.
25. As to the smoking questionnaire on the respondent’s file which Mrs Griffiths agreed she had filled in, Mrs Griffiths answered some further questions. Firstly, regarding the question at point 3, where it says:
In what year did the veteran take up smoking?
Mrs Griffiths agreed she had written:
Probably 1944, not sure. He was smoking when I first met him.
26. Mrs Griffiths admitted it was correct to say she was not sure when her husband took up smoking. Mrs Griffiths also answered that, where she responded in the questionnaire about the quantities that her husband smoked before service and during service and next to both of those had written, “Not sure”, it was correct to say she did not know this as well. She told the Tribunal that it went back a long way. She added that he smoked in times of stress and that he tried many times to stop but couldn’t.
27. Mrs Griffiths said her late husband was smoking when she met him and that he told her he started to smoke in the merchant navy. At a later point, Mrs Griffiths said her husband also told her his smoking increased during his operational service because of the stress he experienced during service. She gave evidence to the effect that her late husband explained conditions on the boat were stressful and the crew members were very aware of the presence of the enemy even though they weren’t hit. He told her it was stressful in the engine room and that the Japanese had fired a torpedo at his ship but missed.
28. Regarding the Japanese submarines firing torpedoes, Mrs Griffiths said she recalled her husband saying that they were obviously not looking for the merchant ship but on their way home from being down in our waters. She did not know where he was on the ship at the time, in the engine room or on the deck. She remarked that he must have heard the swish of a torpedo going past. She was uncertain about whether Mr Griffiths had told her this or it was what she thought must have happened. She said she found it hard to differentiate between what her husband had told her and what she thought must have happened.
29. When asked to comment about the report from the historian, Mr Brendan O’Keefe, suggesting Japanese attacks had actually ceased when her husband was serving with the merchant navy, Mrs Griffiths replied that she had not been aware of this.
30. Mrs Griffiths said her husband told her that he was in the engine room and working as a steam engineer during the war. This meant he was down below. She told the Tribunal he was a carpenter but that was not what he was interested in and he obtained tickets as a steam engineer in Sydney before he went into the merchant navy. About his life on board the boat, the applicant said “I know that he loved it and that it was hard but he loved it. The sea was his first love and I think, I don’t know whether that was steam boats or not because I can’t remember – tugs, I suppose they were engines, I don’t know what they were, how they were run.” She added: “It was hard and that he made good mates and how he enjoyed it.” She said he had told her he loved his time in the merchant navy and on tugs. She thought he probably worked on tugs before he was in the merchant navy.
31. When asked if her husband had ever said anything to her about when he commenced smoking, Mrs Griffiths said she was not sure and apologised “because my memory has gone to the pack”. When asked, “how do you know that your husband actually smoked whilst he was on service?”, Mrs Griffiths replied, “Well, he told me.” He would “talk about what used to happen and about the fellow he used to help down there in the engine room, ... but actually telling me the dates of all this stuff, he could have told me but I've forgotten.” Mrs Griffiths thought the cigarettes were given freely and she remembered him saying they were regularly available.
32. In taking evidence from Mrs Griffiths, we formed the view that Mrs Griffiths was an honest witness and that she tried not to exaggerate or invent. She admitted she did not have a clear recollection of what her husband had told her about his history of smoking and of his time in the merchant navy. Unfortunately, Mrs Griffiths had no clear recall but was adamant that her husband was a heavy smoker when she met him, smoked more at times of stress and that he told her either that he commenced to smoke in the navy or increased his smoking in the navy and that this was because of the stress of his operational service.
The respondent’s records
33. The respondent also pointed to its documents about Mr Griffiths’ service which refer to him on various ships as being a greaser, a trimmer, a fireman and a fireman and greaser. There is no material before us to show that in the Merchant Navy cigarettes were given as a free ration or cheaply available and there is no material establishing that Mr Griffiths had not smoked before going into the Merchant Navy.
34. The respondent pointed out that the historian, Mr O’Keefe, was certain that merchant mariners did not receive supplies of tobacco and cigarettes from the Australian Comforts Fund (unlike all other member of the armed forces). Mr O’Keefe also could not find any material to demonstrate that Mr Griffiths was allowed to purchase more than the quantity of tobacco or cigarettes available to ordinary civilians, noting there were wartime restrictions.
35. Below is a summary of certain evidence before the tribunal furnished by the respondent from its records:
Smoking questionnaire
36. On 18 May 2005, the applicant stated in a smoking questionnaire:
3. In what year did the veteran take up smoking?
Probably 1944 – not sure –he was smoking when I first met him
6. What quantities of cigarettes/tobacco did the veteran smoked during the following periods? Describe the variations in the habit
Before Service NOT SURE
During Service NOT SURE (respondent’s emphasis).
Statement of the applicant
37. In her written statement made for the purposes of these proceedings, on 31 October 2006, the applicant stated:
I first met my husband, the late veteran John Griffiths, in 1965…
John was a smoker when I met him. While I couldn’t recall precisely how many cigarettes he smoked, I would estimate about 15 or more per day. He was certainly a reasonably heavy smoker.
…He continued to smoke fairly heavily until he became ill in about 1980, when he was forced to give it up.
…
John said to me on more than one occasion that he took up smoking while he was in the Merchant Navy…
…
I don’t believe that John ever smoked before he enlisted….
Historical Evidence
38. On 23 January 2007, Mr Brendan O’Keefe provided a historian’s report. Mr O’Keefe’s report referred to the Yarra Wools Steam Ship Collier and noted that Mr Griffiths’ ship operated out of Sydney and went to certain ports in Victoria and Tasmania. Mr O’Keefe concluded that the late Mr Griffiths must have been in the general vicinity of the Robert J Walker when it was torpedoed by a German U-Boat. He reported that, at this stage of the war, there were no Japanese boats operating off the east coast of Australia. That stopped in 1943 but Mr O’Keefe writes that there was a German U-Boat that operated for a short time in south-eastern Australian waters in December 1944. This submarine departed Batavia, Java, on 17 November 1944 to make its way back to Germany. It deviated into waters south of Australia, shelling a Greek tanker about 210 kilometres south of Adelaide on 9 December. On 25 December 1944, it sank the US liberty ship, Robert J Walker, approximately 255 kilometres south–east of Sydney. This was the last vessel it sank in eastern waters but the u-boat sank another liberty vessel over 1,300 kilometres south of Fremantle on its way home.
39. Mr O’Keefe reported (respondent’s emphasis):
Mrs Griffiths has said that her husband told her that he had seen Japanese torpedoes fired at his ship, but that the torpedoes did not hit the vessel. In fact, the Japanese abandoned submarine operations off the eastern coast of Australia mid -1943, and so Mr Griffiths’ vessel could not have been fired upon by any Japanese submarine.
…
It is difficult to determine how close the Yarra was to the site of the U862’s attack on the Robert J Walker…The vessel was not among those that went to the aid of the Robert J Walker.
…
The Yarra is similarly not mentioned in relation to the attack in the relevant naval volume of the official history of the Australia in World War 2 or in other sources.
…
As the published histories of the Australian Comforts Fund make no reference at all to the Merchant Navy, it seems certain that merchant mariners did not receive supplies of Tobacco and cigarettes from this source. As to whether merchant mariners were allocated a special quota of tobacco and/or cigarettes that they could buy, no specific information on this question could be found.
…
There is some evidence that the stress of war in general caused more people to take up smoking.
…
The per capita fall coupled with the rise in demand probably indicates that many more people were smoking in comparison to the situation before the war.
Little information was available about social conditions aboard the Yarra that might have exerted an influence in Mr Griffith commencing to smoke ”
Medical Evidence
40. On 26 February 2007, Professor Mattick reported, after interviewing Mrs Griffiths in connection with her claims and the review:
“…She (Mrs Griffiths) did not know if he smoked prior to the navy service, telling me it was possible but that she didn’t know.
…
She could not provide me with any further information about his smoking prior to meeting him in the mid 1960s, and particularly prior to marrying him in 1967. She could not provide information about his smoking in the 1940s to 1950s period, or in the 1950s through to mid 1960s.
…
There is no information about how many cigarettes or grams of tobacco he consumed prior to service.
There is no information about how many cigarettes or grams of tobacco he consumed during service.
There is no clear information about his consumption soon after discharge from the merchant navy.
There is no clear information about why he started to smoke on a regular basis….I was not satisfied that Mrs Griffiths had sufficient information about smoking prior to service to conclusive state that he did not smoke earlier.
Specifically there is no information which makes me feel confident that Mr Griffiths necessarily either started smoking or increased smoking because of his service in the merchant navy.
…
I did not find the history to be one which made me feel confident that strong conclusions can be drawn….unfortunately, whether his smoking was caused by service or whether he increased smoking during service remains unclear” (respondent’s emphasis).
41. We note Professor Mattick concluded Mrs Griffiths could not provide any information about her husband’s smoking in the 1940s to 1950s period, or in the mid 1950s through to the mid 1960s. He recorded Mrs Griffiths saying that when her husband left service he joined the maintenance staff at the State Office Block working as a maintenance carpenter.
42. Among the respondent’s documents is a bundle of old records about the late veteran which the VRB attached to a letter it wrote to Mrs Griffiths on 17 January 2006. This includes a handwritten note, made by a medical officer on 26 November 1978, that the veteran was a smoker for years of approximately 10 a day. There is a later undated note that he ceased smoking one packet a day. We note that onew packet a day equals the rate of smoking required in factor 6 of the relevant SoP whereas 10 a day falls below the required consumption.
our findings as to the hypothesis
43. The hypothesis put to us, broadly speaking, is that Mr Griffiths either acquired a smoking habit or his habit increased during operational service. There is some evidence that he started smoking during his merchant navy operational service because of the conditions of that service. On the other hand, Mrs Griffiths was not able to recall what he told her and her evidence was vague in many respects. She stated at one point that Mr Griffiths told her he started to smoke during service and at another point she stated that he told her his smoking increased due to the stresses he experienced during service. She admitted in oral evidence that she did not recall exactly what her husband told her and we formed the view that, if she had known, she no longer remembered. However, she can recall that he told her about his smoking associated with the war service.
44. While this evidence is vague, it is supported to some extent by the medical records we have noted above. The handwritten note made by a medical officer on 26 November 1978 and the later undated note that he ceased smoking one packet a day, indicate Mr Griffiths had smoked 20 cigarettes a day before he ceased. This is the level of smoking predicated in factor 6(a) of SoP 45 of 2005.
45. This leads us to find there is some material that points to Mr Griffiths commencing his smoking or increasing his smoking while in the merchant navy. The historian’s report about the u-boat activity in Australian waters further gives credence to the claim that Mr Griffiths’ vessel was fired upon and shows that the conditions of his operational service may have been as stressful as reported to his widow. The historian’s report, while not supportive of the claims made, does acknowledge that a German u-boat was in the vicinity where Mr Griffiths was serving although the Japanese were no longer there. It is not difficult to conclude that the u-boat may have fired at or near the vessel. To our way of thinking it is not important which enemy was in the vicinity once it is established that there may have been torpedoes or the like being fired at vessels in the area. If Mr Griffiths’ vessel was fired upon by Germans rather than Japanese this is not indicative of a claim as to stressful conditions of service that should be dismissed for that reason. Although it’s not very strong or persuasive evidence, we are not in the fact finding stage.
46. The question of whether an hypothesis is consistent with the template of the relevant SoP must be determined by reference to all of the material before the Tribunal. As was noted in Repatriation Commission v Owens (1996) 70 ALJR 905:
It is not whether an hypothesis of connection would be reasonable if some facts are ignored; the question is answered by reference to all of the material before the Administrative Appeals Tribunal
47. We acknowledge and agree with the dicta of Heerey J in Blair v Repatriation Commission [2005] FCA 1076 at [25] that it is impermissible merely to assume or assert the facts which are said to found the hypothesis. We also have noted the observation of Nicholson J in Repatriation Commission v Dunn [2006] FCA 1703:
As was the case in Byrnes at 569, the hypothesis is one of connection of the veteran’s condition with the circumstances of his service. If there is an assumed fact it cannot be the fact to which the hypothesis must be addressed; that is, the fact of connection.
48. We have not made assumptions but have examined the medical records as well as hearing from Mrs Griffiths, whose evidence is now the best available about what her late husband reported of his time in operational service. We note the historical records do not point to cheap and readily available tobacco but also do not point to unavailability. We acknowledge that the whole of the material before us must raise facts which point to satisfaction of the minimum requirements of the SoP. As was noted in East v Repatriation Commission (1987) 74 ALR 517:
For a reasonable hypothesis to be “raised” by the material before the Board, we think it must find some support in that material – that is the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis…
49. As well, in Repatriation Commission v Bey (1997) 79 FCR 364, the Full Federal Court observed:
‘A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister’s second reading speech and with authority.’
50. In our view, it is not true to say an analysis of all of the material before us does not point to satisfaction of the minimum requirements of the SoP. While Mrs Griffiths may be unable to sustain her claim according to the usual standard of proof applied by the Tribunal, that is, on the balance of probabilities, her claims are not unsupported by any circumstances giving them credibility. Her claims are backed by the medical records brought to our attention, slender though they are.
51. We are limited to finding whether the hypothesis was reasonable by reference to the SoP in accordance with ss 120 and 120A. There is no doubt that Mr Griffiths did smoke although we cannot be sure how much occurred during the relevant service period. The statement about the near miss of an enemy torpedo is also not far fetched when one considers the sinking of several vessels in southern Australian waters around the time Mr Griffiths was serving in the vicinity. Although there is no proof of the claims made by Mrs Griffiths, we are not engaged in fact finding or proof at this stage. In light of the records about Mr Griffiths having a smoking habit in 1978 that had existed for some years and Mrs Griffiths’ evidence that Mr Griffiths told her he developed or increased his smoking during his period of service, we find the hypothesis is reasonable.
are the raised facts disproved beyond reasonable doubt?
52. Having found that the raised facts give rise to a reasonable hypothesis, we are not satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the death of Mr Griffiths related to his operational service. As the Full Court ruled in Byrne v Repatriation Commission [2007] FCAFC 126, the result is dictated by the operation of s 120(1) in circumstances where the hypothesis is accepted by the Tribunal as reasonable and where it cannot, as a matter of law on its stated reasons, be satisfied that the hypothesis was disproved beyond reasonable doubt.
53. We conclude therefore that the death of the late veteran, Mr John Griffiths, was war-caused within the meaning of section 8 of the Act. It follows that his widow, the applicant, is entitled to the widows’ pension.
decision
54. The decision under review is set aside.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt & Member Dr Thorpe
Signed: Talaishia Collis
AssociateDate/s of Hearing 16 August 2007
Date of Decision 17 October 2007
Counsel for the Applicant Mr Craig Colborne
Solicitor for the Applicant Ms Stacey Hahn – Dibbs Abbott StillmanSolicitor for the Respondent Ms Katrina Harry – Department of Veterans’ Affairs
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