Hamdorf and Repatriation Commission - [2001] AATA 330

DECISION AND ORAL REASONS FOR DECISION [2001] AATA 330

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/180

VETERANS' APPEALS DIVISION          )
           Re      LILLIAN AGNES HAMDORF
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member)

Date6 April 2001
PlaceAdelaide

Decision For the reasons given orally at the hearing of this matter 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 16 December 1999.

(Signed)
W J F PURCELL
Senior Member
CATCHWORDS

VETERANS' AFFAIRS – widow's pension – whether veteran's death was related to his eligible war service – smoking history – reasonable satisfaction test.
Veterans' Entitlements Act 1986 ss7A, 7(1)(c), 120(4)

Statement of Principles Instrument No. 30 of 1996

(as amended by Instrument No. 150 of 1996)

ORAL 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 28 June 1999, which determined that the death of the veteran was not related to his eligible war service. The Veteran's Review Board (the VRB) affirmed the decision on 16 November 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 applicant. Mr Hemsley, of counsel, represented the applicant who gave oral evidence. Mr Doube, Departmental Advocate, represented the Commission.
The applicant's husband, Ike Hamdorf (the veteran), enlisted in the CMF on 2 September 1940, and served in the Australian Army from 26 February 1941 to 2 November 1945. It is not in dispute that the veteran's service constitutes eligible war service in accordance with s7(1)(c) of the Veterans' Entitlements Act 1986 (the Act), but does not constitute operational service for the purposes of the Act. In these circumstances, the standard of proof is that provided in s120(4) of the Act, which provides:
"120 Standard of Proof
          …
(4)   Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:This subsection is affected by section 120B
…
120BReasonable satisfaction to be assessed in certain cases 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 eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1:        Subsection 120 (4) is relevant to these claims.
Note 2:For 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 (3) 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)In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)       there is in force:
(i)a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
(b)       the kind of disease contracted by the person; or
(c)       the kind of death met by the person;
as the case may be."
The veteran died on 27 March 1999, aged 81 years, the certified causes of death being "cardiac arrest, small cell carcinoma of lung, chronic obstructive airways disease and atrial fibrillation" (T6/59).
The relevant Statement of Principles to be applied is Instrument 30 of 1996, as amended by Instrument No 150 of 1996, concerning malignant neoplasm of the lung (the Statement of Principles). Factor 5(a)(iii) is the relevant factor, and so far as is relevant to this matter, provides:
"5The factors that must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the lung or death from malignant neoplasm of the lung is connected with the circumstances of a person's relevant service are:
(a)in relation to any of the following kinds of malignant neoplasia of the lung:
(i)        squamous cell carcinoma of the lung; or
(ii)       oat cell carcinoma of the lung; or
(iii)      small cell carcinoma of the lung; or
(iv)      malignant neoplasm of undetermined histiology; or
(v)       large cell carcinoma of the lung,
smoking cigarettes or other tobacco products for at least one half of a pack-year before the clinical onset of malignant neoplasm of the lung; or
…"

The definition of a "pack year" is set out in section 7 of the Statement of Principles, which states:

"'pack-year' means 7,300 cigarettes, or 1,460 cigars, or 7.3 kg of pipe tobacco"

The applicant lodged a claim for Widow's Pension on 30 April 1999, and stated that the veteran's service caused or contributed to his death, because of "smoking in the army due to peer group pressure up to and including his death" (T6/49). She completed a smoking questionnaire on 23 April 1999 and stated that the veteran began smoking whilst in the Army, and smoked approximately 8 ounces of tobacco per week, and that he started to smoke cigarettes on a regular basis because of peer group pressure. He continued smoking until his death, and began to smoke more heavily in 1999 "after the commencement of his chemotherapy" (T6/53-54).
On 28 June 1999 the Commission rejected the applicant's claim, and was satisfied that the veteran smoked 34 cigarettes per day from 1941 to 27 March 1999; but that the evidence did not show that his smoking was causally related to service. The applicant applied for review to the VRB and on 16 November 1999 the VRB affirmed the decision, and considered that it was more probable than not that the veteran met the quantitative requirements of cigarette smoking as outlined in the relevant Statement of Principles, but that the evidence did not raise a connection between the veteran's death and his service (T2/7-11). The applicant has applied to this Tribunal for review of the Commission's decision.
It is agreed between the parties that the veteran served at Banka-Banka in the Northern Territory as a mechanic/driver from August 1941 and that the service undertaken was stressful. The applicant contends that the cause of the veteran's death is from a malignant neoplasm of the lung, and that his death can be causally linked to his service, in that he commenced smoking and increased his smoking as a consequence of his war service, because of the stress and peer group pressure he experienced during his service. The applicant maintains that the veteran continued to smoke at an increased rate of cigarettes until the time of his death on 27 March 1999, and that the increase in smoking is attributable to his service. She maintains that such a smoking history satisfies the requirements of Factor 5(a)(iii) of the Statement of Principles.
The Commission contends that none of the Statement of Principles factors for malignant neoplasm of the lung has been satisfied. Whilst it concedes that the veteran was a heavy smoker, there is no evidence that his smoking habit was temporally or causally related to his war service. The Commission contends therefore, that there is no evidence that the veteran's lung cancer, which caused his death, arose out of or was attributable to his service.
The applicant gave evidence that she married the veteran in January 1945. She began writing to him during the War when he was stationed at the Banka Staging Camp in the Northern Territory because her brother, who was also stationed at Banka, prompted the applicant to write to the veteran as he was not receiving any mail. She met the veteran personally in 1944.
The applicant said also that she did not know that he was a heavy smoker during the period they were writing to each other. At that time he had not told her that he smoked, or the reason why he began smoking. She discovered that he was a heavy smoker when she met him in May 1944, but was not particularly concerned as everyone was a smoker at that time. It was not until about 1948, when, as she described it "the marriage had settled down", that she suffered a bout of hay fever, and raised, or summoned the courage, to query the veteran's smoking. She says that he told her that he became addicted to smoking because of the stress he experienced at the Banka Staging Camp, in particular that he was repairing convoys that were going to Darwin, and with the continual day and night servicing, sleep was a luxury and she understood that apparently smoking helped the drivers to stay awake on these journeys. She said that she does not recall any subsequent discussions of the question of the veteran smoking, and he continued to smoke heavily and not to be concerned about the effects on her health.
There is no documentary evidence, no enlistment questionnaire or other document which could disclose whether the veteran was a smoker before enlistment, or a light smoker at enlistment, who became a heavy smoker because of his service at Banka. The only direct evidence is that of the applicant, who impressed me as a witness of truth, and I accept her evidence.
It became clear in the course of her evidence that the applicant knew almost nothing about the veteran's background before she married him. It would appear that he was not inclined to discuss his past, and she only met his family some time after they were married and returned to Renmark, in about 1947/48.
I consider that when the applicant completed her claim and the questionnaire, she answered the questions in general terms, and it is only more recently, under more searching questioning, that she has related the 1948 conversation. I accept her evidence that the conversation took place, and that the veteran told her, in effect, that he became addicted to smoking because of his stressful service at Banka.
I am reasonably satisfied on the evidence that the veteran's smoking habit, the volume of which indubitably satisfies the requirement of the Statement of Principles, was related to the particular service he rendered. I am reasonably satisfied, therefore, that the circumstances of the veteran's death satisfy Factor 5(a) of the Statement of Principles and that the applicant is qualified for payment of pension, with effect from 16 December 1999.
For these reasons the Tribunal sets aside the decision under review and substitutes a decision that the veteran's death was war-caused and that the applicant has qualified for payment of pension with effect from 16 December 1999.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  6 April 2001
Date of Decision  6 April 2001
Counsel for the Applicant        Mr G D Hemsley
Solicitor for the Applicant         Mr G D Hemsley
Counsel for the Respondent    Mr G Doube
Solicitor for the Respondent    Repatriation Commission