Hartas and Repatriation Commission
[2009] AATA 180
•18 March 2009
DECISION AND REASONS FOR DECISION [2009] AATA 180
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2424
VETERANS' APPEALS DIVISION ) Re COLIN HARTAS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Ms N Isenberg, Senior Member
Dr I Alexander, Member
Date 18 March 2009
PlaceSydney
Decision
The Administrative Appeals Tribunal decides that the Applicant’s chronic bronchitis and emphysema is not service related and the decision under review is therefore affirmed.
..................[sgd].......................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that chronic bronchitis and emphysema were war-caused – consideration of Statement of Principles
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(4), 120B
Repatriation Medical Authority Statement of Principles Concerning Chronic Bronchitis and Emphysema – Instrument No 30/2004
REASONS FOR DECISION
Ms N Isenberg, Senior Member
Dr I Alexander, Member
Background
1. Mr Hartas served in the Australian Army from 22 February 1972 to 21 February 1978. That service was not “operational service” as defined in the Veterans’ Entitlements Act 1986 (“VE Act”), but is eligible defence service.
2. Mr Hartas contends that his chronic bronchitis and emphysema is service related.
Issue before the Tribunal
3. Although there were other matters considered by the Veterans’ Review Board in reviewing Mr Hartas’ claim, the only matter before the Tribunal was in respect of whether his chronic bronchitis and emphysema were service related. As there was no dispute that Mr Hartas suffers from chronic bronchitis and emphysema, the only issue was whether the condition was related to his eligible defence service.
Legislative Background
4. Part IV of the VE Act deals with pensions for members of the Defence Force. Section 70(1) of the VE Act provides that, inter alia, where a member is incapacitated from a defence-caused disease, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with that Act. By s 70(5)(a), disease contracted by a member shall be taken to be defence-caused if the disease arose out of, or was attributable to, the member’s defence service.
5. In determining whether a disease suffered by a member is a defence-caused disease for the purposes of s 70 of the VE Act, the Tribunal is, pursuant to s 120(4), to decide that matter “to its reasonable satisfaction”.
6. The Repatriation Medical Authority (“RMA”) was established under s 196A of the VE Act. If the RMA is of the view that there is sound medical-scientific evidence that indicates that if a condition can be related to veterans’ service, the RMA must determine a Statement of Principles (“SoP”) (s 196B). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that connection has been raised connecting the condition with that service. The reference in s 196B(3) 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.
7. Pursuant to s 120(4) of the VE Act, the Tribunal is required to determine this matter “to its reasonable satisfaction” – that is, on the civil standard of proof, namely, proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327;12 ALD 798; 7 AAR 17.
8. We are required to decide matters to our reasonable satisfaction in accordance with any Statement of Principles (“SoP”) issued by the Repatriation Medical Authority (RMA) or any relevant determinations or declarations under the VE Act: s 120B(3). The RMA issues SoP based on sound medical-scientific evidence, setting out factors relating to service, at least one of which must exist in order to establish a causal connection between the condition and service: s 196B(3).
9. The Repatriation Medical Authority has determined, under s 196B(3) of the VE Act, a relevant Statement of Principles (“SoP”), namely, the Statement of Principles Concerning Chronic Bronchitis and Emphysema.
evidence and submissions
10. Under clause 4 of the relevant SoP, at least one of the factors set out in clause 5 must be related to the relevant service (being in this case defence service) by the veteran. Clause 5(a) then provides relevantly as follows:
“Factors
5.The factor that must as a minimum exist before it can be said that, on the balance of probabilities, chronic bronchitis and emphysema or death from chronic bronchitis and/or emphysema is connected with the circumstances of a person’s relevant service is:
(a)smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema …
11. That the circumstances of Mr Hartas’ service brought him within factor 5(a) was the only contention.
12. Mr Hartas gave evidence that he had been a champion athlete at school but had left at age 15 and became an apprentice plumber for approximately 18 months. He had a variety of other labouring type jobs until, in February 1972, he joined the Army. He had three months initial training at Kapooka and then another three months corps training at Ingleburn. He then served eight or nine months as a rifleman in Townsville.
13. He was asked to work temporarily as a steward for nine or ten months in the Officers’ Mess, and then became a barman there. At his request he was transferred for three months, starting from March 1975, to work as an airstrip guard in Butterworth, Malaysia. He then returned to Townsville, again working as a barman, until his discharge in February 1978.
14. He said that as a barman his day typically started at about 8:00am when he would stocktake and clean up from the previous night. At about 9:30am, morning tea was served. Lunch would follow later in the day and drinks were had after work finished. Ordinarily, he would not finish until about 10:30pm Sometimes there were also formal dining-in nights and parties. These functions would go until 1 or 2am, during which time he was on duty until the last officer left. He would work six or seven days per week.
15. Mr Hartas said that he commenced smoking while he was an apprentice plumber which would have been, on his evidence, in about 1968, or perhaps, he thought, 1970. He said he would smoke a few cigarettes while having a drink after weekend sport. He then started to smoke with his workmates. He gave somewhat confused evidence about the quantity of cigarettes he smoked immediately prior to his service: variously 18-20 per day and 18-20 per week. He had told Professor Breslin that it was 20 per day.
16. He said that while an infantryman, that is before his roles as a steward and barman, he never varied from about 20 cigarettes per day. As a barman however, he significantly increased his smoking. Free cigarettes were available at the bar and all the officers smoked. He found the job stressful because of the long hours and the responsibility when there was a large function. He agreed that he was but one of the stewards and there was a Corporal or Sergeant in charge of them. During breaks, the supervisor would allow them to smoke and, he said, drink. He also said that he smoked because of boredom. He would drink and smoke with the officers.
17. By contrast, he said he had decreased his smoking during his Butterworth deployment because there was plenty to do there. Within a couple of months of his return to Townsville though, he returned to smoking 40 cigarettes a day. By the time he left the Army, he smoked 45 cigarettes per day. He continued to smoke at that rate until about two years ago when he reduced to 20-25 cigarettes per day. Despite medical advice since the mid-1980s and many attempts, he has been unable to give up smoking.
18. The Applicant’s counsel conceded that Mr Hartas’ evidence about his pre-service smoking was somewhat confused, but noted that even if it were at the level of 20 per day, Mr Hartas had more than doubled his use during his service. Counsel referred to the report of Dr Michael Burns dated 15 October 2007. Dr Burns was of the view that Mr Hartas’ service was a major factor in fostering his increased cigarette consumption. His opinion, it seems, was largely based on his assessment that because Mr Hartas had had a deprived family and social background, he found, for the first time in his life, camaraderie, praise and acceptance in the Officers’ Mess. This was described as ‘[a] socially levelling activit[y]’ which became an addiction.
19. The Respondent conceded that there was a temporal connection between Mr Hartas’ increase in smoking, but denied any causal connection. We were referred to the report dated 28 April 2008 by Professor Mattick who was of the view that there was no causal connection between Mr Hartas’ eligible service and his smoking habit. In noting that Mr Hartas had smoked prior to service, he considered Mr Hartas’ smoking to be a matter of personal choice, and was not driven by any particular stressors or untoward events, but simply because he had the opportunity to smoke.
CONSIDERATION
20. In seeking to find a causal nexus between Mr Hartas’ eligible service and smoking, considerable care must be exercised in circumstances where the applicant commenced smoking during service, but not in a theatre of war: Repatriation Commission v Edwards (1993) 31 ALD 174. We consider the same care needs to be exercised when considering any causal connection between an applicant’s service and an increase in smoking.
21. The question is whether Mr Hartas’ service was a contributing cause and not merely the setting in which the increase in his smoking occurred. Not everything which occurs while on service is attributable to a person’s service: Repatriation Commission v Tuite(1993) 39 FCR 540; 29 ALD 609; 17 AAR 158. However, in Roncevich v Repatriation Commission (2005) 222 CLR 115; 85 ALD 257; 41 AAR 355, the majority of the High Court expressed their agreement with the dissenting judgment of Heerey J in the Roncevich v Repatriation Commission Full Federal Court ((2003) 75 ALD 345 at 350; 37 AAR 397 at 401-402, paragraph [24]) where His Honour, referring to the judgment of Dixon J in Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 at 294, stated that:
things a person does in the course of serving as a soldier are not limited to the obeying of lawful commands, directions and orders under disciplinary sanction ...
… To be in the course of employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful ... Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties. [Emphasis added by Heerey J]
22. Heerey J found that the Tribunal had effectively ignored what the appellant was, as a matter of practicality, required or expected to do as part of his service in the army. While there was no order requiring Mr Roncevichto attend the mess and to drink the amount of beer that he did, there was an expectation that he would attend the Sergeants’ Mess each afternoon and attend a function for visiting dignitaries.
23. In the present matter then, we need to decide if Mr Hartas was expected to smoke as he did, when clearly his duties per se did not oblige him to smoke.
24. We accept that Mr Hartas worked long hours as a steward and barman in the Officers’ Mess in Townsville and that he found this somewhat demanding. We note too the history given by Mr Hartas to Professor Mattick that, when a barman, he was worried about his family and his life and that his marriage was disintegrating because of his drinking. He told Professor Mattick that that was the main reason he smoked.
25. During breaks, he and the other stewards would smoke. We also accept his evidence that he also smoked because of boredom. He had told Professor Mattick one reason he smoked was because there was little to do.
26. We accept too that free cigarettes were available at the bar and that during the 1970s many of the officers may have smoked. We do not accept, given that Mr Hartas was of such a junior rank, that he would be smoking and drinking with the officers as he claimed, nor as was submitted, that he was obliged to smoke if offered a cigarette. Moreover, we do not accept Dr Burns’ view that Mr Hartas, ‘for the first time in his life’, found social acceptance in the Officers’ Mess which, we consider was unlikely to be an egalitarian social club where stewards and guests warmly socialised with each other. Furthermore, there was evidence of Mr Hartas’ socialising with sport and work mates before his service, which is at odds with Dr Burns’ view.
27. We find, on the balance of probabilities, that Mr Hartas’ smoking was a matter of personal choice, and was not driven by any particular stressors or untoward events associated with his work, or because of the milieu of the Officers Mess, but simply because he had the opportunity to smoke in circumstances where he was bored or worried about his home life. While there may have been cigarettes available and an opportunity to smoke them in a lull between tasks, Mr Hartas merely seized that opportunity. It was not, in our view, a situation like Roncevich where there was an expectation of socialising and drinking/smoking.
CONCLUSION
28. While there was a temporal link between Mr Hartas’ service and his increase in smoking to a level that would allow him to meet the terms of the relevant factor, there is no evidence of a causal link between the Mr Hartas’ service and the increase in smoking, which was said to have led to his claimed condition.
Decision
29. For the above reasons, we affirm the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member, and Dr I Alexander, Member.
Signed: ………………………[sgd]………………… Associate
Date/s of Hearing: 9 February 2009
Date of Decision: 18 March 2009
Counsel for the Applicant: Elizabeth WoodAdvocate for the Applicant: Anastasia Toliopoulos, Legal Aid – Veterans’ Advocacy Service
Advocate for the Respondent: Nigel Bunn, Department of Veterans’ Affairs
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