Hatchman and Repatriation Commission
[2006] AATA 876
•16 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 876
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/169
VETERANS' APPEALS DIVISION )
Re GWENDOLIN HATCHMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date16 October 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ........[Sgd]...........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – operational service with Australian Army - death from ischaemic heart disease – application of Statements of Principles - reasonable hypothesis of relevant relationship to eligible war service – smoking not causally associated with war service – death not war-caused – decision affirmed
Veterans’ Entitlement Act 1986 ss 5B, 5E, 6A, 7, 8, 11, 14, 120, 120A
Administrative Appeals Tribunal Act 1975 ss 34B, 37Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission (2003) AAR 363; [2003] FCAFC 136
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564REASONS FOR DECISION
16 October 2006 Mr RG Kenny, Member Background
1. Alan Bruce Hatchman (the veteran) served in the Australian Army from 27 January 1942 until 10 October 1947. He died on 6 January 2005 at the age of 82 years. On 16 February 2005, Gwendolin Hatchman, his widow and dependant, as those terms are defined in sections 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (the Act), lodged a claim, under section 14 of the Act, for a pension. This was on the basis that the veteran’s death was war-caused in accordance with section 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 11 March 2005 and, in turn, by the Veterans’ Review Board (the Board) on 2 March 2006. On 13 March 2006, Mrs Hatchman sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, Mrs Hatchman was represented by Mr A Harding of counsel. The respondent was represented by Mr J Stoner.
3. Material available to the Tribunal included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Service
4. It is common ground that part of Mr Hatchman’s army service was during World War II in Darwin in the Northern Territory for a period exceeding 3 months in 1942 and 1943 and that he also served in the Commonwealth Occupation Force in Japan in 1946 and 1947 which was during the extended period of World War II as deemed in accordance with subsection 5B(3) of the Act. Therefore, all of his service constitutes eligible war service in the form of operational service in accordance with sections 7 and 6A, respectively, of the Act.
Issues and Legislation
5. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in section 8 of the Act must be met. Relevant in this matter is paragraph 8(1)(b) of the Act which reads:
“(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)…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;”…
6. Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in subsection 120(1) of the Act which reads:
“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.”
7. The application of that provision is affected by the terms of subsections 120(3) and 120A(3) of the Act. Those provisions read:
“120 (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...
120A Reasonableness of hypothesis to be assessed by reference to 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.”
8. The provisions noted above relate to matters of causation and require a consideration of the Statements of Principles which have been published by the Repatriation Medical Authority (RMA). However, before applying the provisions of the Act relating to causation, it is necessary to determine the “kind of death” applicable to the veteran: see Repatriation Commission v Hancock [2003] FCA 711. Such matters are to be determined in accordance with the terms of subsection 120(4) of the Act: see Fogarty v Repatriation Commission (2003) AAR 363 at 373. Thus, the “kind of death” must be determined to the decision maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
Cause of Death
9.The veteran’s death certificate declared the cause of death and respective duration of conditions in the following way:
(a) acute myocardial infarction (30 minutes)
(b) ischaemic heart disease (30 years).
10.It is not in dispute and I am reasonably satisfied in this matter that the “kind of death” in Mr Hatchman’s case was that associated with ischaemic heart disease.
Procedure
11. The procedure to be adopted in determining whether or not a particular condition, ischaemic heart disease, which caused death arose out of, or was attributable to, any eligible war service that Mr Hatchman rendered was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 82 - 83 in the following terms:
“(i) 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.
(ii) If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
(iii) 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.
(iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... 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.”
Step 1: - Hypothesis
12. The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. Mr Harding submitted that Mr Hatchman’s ischaemic heart disease developed because of a service-related cigarette smoking habit. I accept that this constitutes an hypothesis of a connection to service.
Step 2: - Statement of Principles
13. The second step requires identification of the relevant Statement of Principles. For ischaemic heart disease, this is Instrument No. 53 of 2003 as amended by Instrument No. 9 of 2004.
Step 3: - Reasonableness of the Hypothesis
14. The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of subsection 120(3) of the Act. This step is not concerned with proof of the applicant’s claim. Rather, it is concerned with the question of whether there is some material which calls for a determination under subsection 120(1) of the Act: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 415. This requirement will be met if an hypothesis fits or is consistent with the template provided by a relevant factor and associated definition in the Statement of Principles. These read:
“Factors
5. …
(f) where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease;…
Other definitions
8. For the purposes of this Statement of Principles:…
pack years of cigarettes or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7 300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;”
15. If the hypothesis under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
16. Mrs Hatchman gave evidence that she and the veteran met in 1948 and married in 1949. She described him as being a heavy smoker at that time and said that he continued to smoke approximately 2 to 3 packets of tobacco per week until the mid 1980s when he had a heart by-pass operation. She recalled him telling her that he had commenced smoking during the war when he was in Darwin after he had injured his thumb and was given a cigarette by the treating doctor. He told her that he continued to smoke cigarettes from that time. Mr Hatchman has made statements at various times to the effect that he was given a cigarette by a treating doctor after treatment for an injured thumb. His brother, Jeremy Hatchman, was six years younger than the veteran and recalled that neither of them smoked before the war. He said that the first time he saw his brother smoking was when he was on leave after he had returned to Queensland probably from the Darwin area.
17. That material is consistent with the template of each component of factors 5(f)(i) and 5(f)(ii) in the Statement of Principles. That is, there is material before me which points to each of those components. In accordance with subsections 120A(3) and 120(3) of the Act, that material raises a reasonable hypothesis of a causal relationship between Mr Hatchman’s ischaemic heart disease, his subsequent death and his service per medium of smoking.
Step 4: - Is Death War-caused?
18. This requires a consideration of the fourth of the Deledio steps which applies subsection 120(1) of the Act. The veteran’s death will be war-caused unless I am satisfied beyond reasonable doubt that such is not the case. This will be so if at least one of the facts necessary to support the hypothesis is disproved beyond reasonable doubt or if the truth of some material fact, which is inconsistent with the hypothesis, is proved beyond reasonable doubt: see Byrnes v Repatriation Commission(1993) 177 CLR 564 at 570.
19. From 1984, Mr Hatchman made applications to the respondent for acceptance of a range of conditions as being related to his service. In doing so, he provided information about his smoking history. Further, medical reports were completed in which a history of his smoking was recorded. Statements by others about Mr Hatchman’s smoking have been recorded. Also before me are records of evidence given by Mr Hatchman at Board hearings in 1985, 1989 and 2005 and at a Tribunal hearing in 1987. It is useful to set out extracts from those records.
20. In a medical history sheet, dated 14 May 1984, an incomplete report reads:
“used to smoke 4 oz per day. Started at age 21 in 1942 – given a cigarette by an army doctor where thumb…..”
21. In a smoking questionnaire, dated 27 November 1984, Mr Hatchman wrote that he did not smoke during the service period and started smoking about 1948. He continued:
“during my lifetime I was a smoker for a period of about eight years all told. (Reason – tension)”
22. A smoking questionnaire, dated 12 February 1985, completed by Mr Hatchman, reads:
1. Did you smoke prior to enlistment? –No
2. Did you smoke during your service? – No.
3.Did you continue to smoke after service? – I started smoking after discharge from service 1947.
23. In its Reasons for Decision published on 25 October 1985, the Board noted:
“The applicant further informed the Board that he started to smoke during his service but such smoking was only “casual”; that he would have smoked about 10 cigarettes a week.”
In that hearing, Mr Hatchman referred to stressful experiences that he had whilst in Darwin. These included the occasions when Darwin was bombed by the Japanese and he described situations where he had to “run for his life”.
24. On 30 June 1986, George Jobson, a life-time friend of Mr Hatchman, wrote that Mr Hatchman did not smoke before enlistment but did so doing his army service when on leave “at different times 1942-1947”. Another friend, Tom Simpson, in an undated letter received by the respondent on 24 February 2000, wrote that he served with Mr Hatchman in Darwin from February 1942 to May 1944 and that, as a non-smoker, he did not need his tobacco ration which he gave to Mr Hatchman.
25. On 26 August 1986, Mr Hatchman completed a statement and said:
“During the early months of service in the Darwin area I began smoking and drinking which became quite a habbit (sic) to the extent that I swapped any items of comfort parcels for other members tobacco rations, one particular person was Tom Simpson who will backup my claims.
I also got access to American cigarettes when American Negro transport drivers passed thro (sic) the area, they seemed to have plenty of rations of all kinds.
Tobacco and alcohol always seemed part of service life with me, there was a time in 1944 when I was having a thumb sewn back on at 128 AGH. Both the doctor and sister offered cigarettes on that occasion.
This trend of smoking habbit (sic) continued until I had irregular chest pain in 1957 when on doctor’s advice I ceased for a period of about two years.”
26. In 1987, Mr Hatchman appeared before the Tribunal and evidence of his smoking history was given by him and others. In its reasons, published on 7 December 1987, the Tribunal reproduced part of the transcript from the Board's 1985 proceedings which included a question to Mr Hatchman about whether he smoked to relieve the stress associated with the bombing attacks on Darwin. He did not implicate this as a cause of his smoking and, rather, referred to a doctor giving him a cigarette after he had cut his thumb and he said that he “liked the taste of it” and might have smoked 10 cigarettes in that week. The Tribunal, at that time, referred Mr Hatchman to his inconsistent accounts and he said that he had lied to the Board because he believed that it would be regarded as a self-inflicted injury, not compensable under legislation. He also said that his evidence to the Tribunal was the truth because he was giving evidence under oath and was not doing so when he gave evidence to the Board. Mr Hatchman then told the Tribunal that he commenced smoking in the early days of service, that cigarettes were freely available, that he smoked his ration of 1 to 2 ounces per week as well as the rations of two other servicemen and that, after service, he smoked approximately 120 hand-rolled cigarettes as well as some of his wife's tailor-made cigarettes per day.
27. Mr Jobson (see paragraph 23 above) also gave evidence before the Tribunal on that occasion and said that Mr Hatchman did not smoke before the war and was a light smoker after service until he gave up smoking around 1950. Jeremy Hatchman’s evidence at those proceedings was not materially different from that which he gave in these current proceedings except that he wasn't sure whether he noted his brother to be smoking before or after he served in Japan.
28. Another questionnaire completed by Mr Hatchman on 3 June 1988, reads:
“Do you smoke now? No.
If you did smoke once but now have stopped, when did you stop and why? 1953 –1954 restarted 1954 and stopped again in 1976. On all occasions, on doctors advice.
How old were you when you first smoked? 19 years old.
How old were you when you the first smoked regularly? 19 years.
Why did you begin to smoke regularly? (if known) Tension – relaxation perhaps. Seemed I had no control once I acquired the habit.
How much did you smoke once you had become a regular smoker? As much as was available at the time…
Was there any period when your smoking habit increased or decreased significantly? 1942-1943; 1953-1954; 1954-1976.”
29. Mr Hatchman gave evidence in a Board hearing in 1989. There, he relied on his statement of 26 August 1986 (see paragraph 24 above) which nominated 1942 as being the year he commenced smoking and he said that he smoked 2 ounces of tobacco or about 150 cigarettes per day in 1953 but then ceased smoking until the following year. He said that he was then smoking about one and a half packets of tobacco per day until he ceased in 1976.
30. Mr Hatchman was again before the Board on 15 February 1995. In its published Reasons for Decision, the Board wrote that, in giving evidence, Mr Hatchman rejected early accounts of his smoking history and said that he started smoking in 1942 when a driver handed him a cigarette and also that he had no difficulty getting cigarettes in Darwin.
31. In his submission, Mr Stoner described the evidence in relation to Mr Hatchman’s smoking habit as being completely unreliable and that, as a result, no finding favourable to the applicant's case could be made upon it. He also submitted that, even if there had been temporal connection between Mr Hatchman’s smoking and his service, there was no evidence of any causal relationship. He submitted that there was no evidence of how seriously injured his thumb was, though he referred to an entry in service medical records, dated 19 February 1945, where a thumb injury of a minor nature is described.
32. Mr Harding conceded that the evidence of Mr Hatchman was inconsistent and unreliable. However, he also submitted that a material consideration is that the matter before the Tribunal was not a claim by Mr Hatchman but, rather, by Mrs Hatchman. He referred to the source of her belief that smoking commenced on service after Mr Hatchman was given a cigarette by a doctor after a thumb injury. He described the inconsistent evidence given by Mr Hatchman to the Board and to the Tribunal as attempts by him to tailor his evidence to suit his particular claims at the time. He submitted that the motive of personal gain which arose on those occasions was not present when he recounted the history of his smoking to his wife. Rather, it was a situation where a man was simply relating the background of his smoking to her. He also submitted that the evidence of Jeremy Hatchman was consistent with that provided by Mrs Hatchman at the hearing and that it should be accepted on that basis. He submitted that the hypothesis that smoking commenced on service following the thumb injury was one which had not been disproved beyond reasonable doubt and that, therefore, Mr Hatchman’s smoking and its consequential effects of ischemic heart disease and death should be accepted as being war caused.
33. The Tribunal in 1987, on consideration of all the evidence before it, concluded that no one could say, with the required measure of confidence, either when Mr Hatchman started smoking or what amount he was smoking. However, at that hearing while giving evidence on oath, Mr Hatchman said that he had been untruthful in giving earlier accounts because he was concerned that an admission to smoking on service may prevent his claims being accepted. His evidence to the Tribunal was that he commenced smoking in 1942. I accept that the Tribunal’s summary of Mr Hatchman’s evidence, in so far as the commencement of smoking is concerned, correctly stated the position at that time ie in 1987. However, I do not accept that it correctly states the position currently. Mr Hatchman gave evidence in subsequent Board hearings in 1989 and 1995. In a statement taken into evidence at the 1989 hearing, he said that he was a non-smoker at the time of his claim for pension and, therefore, thought it would be very simple to answer in the way that he did. He also stated that he thought it was not a very important factor
34. The accounts of the commencement of Mr Hatchman’s smoking in those Board hearings were consistent with that which he gave at the Tribunal in 1987 and point to the first year of service as the time he began to smoke. That is also consistent with the statements of George Jobson and Tom Simpson. Mr Jobson observed him smoking when on leave “at different times 1942-1947”. Mr Simpson served with Mr Hatchman from February 1942 to May 1944 and gave him his tobacco ration. On all of the evidence before me, I am satisfied beyond reasonable doubt that Mr Hatchman took up smoking early in his service in 1942.
35. Mr Hatchman’s service documents do not clearly indicate when he left the Darwin area although there is reference to a change from the Northern Territory line of command to the South Australian line of command in May 1943. There are also references to his being in Queensland in August 1944, November 1944, December 1944, February 1945, March 1945 and January 1946. His medical documents contain references to a thumb injury. A medical history sheet describes treatment, from 19 February 1945 until 20 February 1945, at 71 ACH for a “fractured left thumb”. From 20 February 1945 until 28 February 1945, it describes treatment at 128 AGH for “crush injury right thumb”. Those injuries are also recorded in his Service and Casualty Form. The following details are given in a medical record:
“19 February 1945: injuries: laceration base of nail of thumb. Haematoma beneath nail. Laceration across pad of thumb with much contusion. The injury is of a minor nature.”
36. Mr Stoner obtained a statement from John McCarthy, an associate professor and visiting fellow at the Australian Defence Force Academy. This was forwarded to the Tribunal after the hearing and was requested in order to determine where certain hospitals, referred to in the veteran’s files, were located. These were 71ACH and 128AGH. Mr McCarthy’s research revealed that, in February 1945, 128AGH was located at Redbank, some 19 km from Brisbane. He was unable to find records of 71ACH for February 1945 but he concluded, from its location at other times, that it was most probably in the Brisbane area as well. This is supported by the movement of the veteran from one hospital to the other on the same day ie 20 February 1945.
37. There are no other references to a thumb injury in Mr Hatchman’s service records. However, a record completed by his treating doctor, Dr. Davidson, on 14 May 1984, refers to a thumb injury:
“Thumb - tip partially amputated 1943 in breach of a gun – rejoined – still slight stiffness and restriction off movement but not much trouble now.”
38. As noted above, in that report, Dr. Davidson also recounted Mr Hatchman’s smoking history and nominated 1942 as the year of commencement and he made reference to an army doctor and Mr Hatchman’s thumb injury.
39. The hypothesis advanced by Mr Harding relied upon cigarette smoking having commenced at the time of treatment for Mr Hatchman’s thumb injury. He submitted that consideration should be given to that hypothesis on the basis that Mrs Hatchman’s claim was independent from the earlier ones made by Mr Hatchman. While I accept that Mrs Hatchman’s claim is independent of that of the veteran, I do not accept that this means that the evidence given by him about his smoking can be ignored. It may well be that a doctor provided Mr Hatchman with a cigarette at the time of treatment for a thumb injury. The veteran variously nominated 1943, 1944 and 1945 as the year of the thumb injury. He also nominated the occasion when a doctor have him his first cigarette was when he was treated for his thumb injury in 128 AGH. That was in Brisbane and well after he served in the Northern Territory. The commencement of smoking prior to the thumb injury is inconsistent with the hypothesis advanced on behalf of Mrs Hatchman. As I am satisfied beyond reasonable doubt that Mr Hatchman’s smoking habit commenced prior to the thumb injury, this means that the factual basis necessary to support the hypothesis is disproved beyond reasonable doubt and the claim can not succeed.
40. Consideration should also be given to any other basis that might provide a causal relationship between Mr Hatchman’s smoking and his service, though no submissions were made other than that described above. In proceedings before the Board in 1985, Mr Hatchman referred to the bombing of Darwin and the need for him to “run for his life” on an occasion. However, the transcript of those proceedings, as reproduced in the reasons of the Tribunal in 1987, reveals that he did not agree that he took up smoking at that time because of those circumstances. In 1986, the veteran observed that tobacco always seemed part of service life but, while that may indicate a temporal connection to service, it is not reflective of a causal association as required for the purpose of section 8 of the Act.
Decision
41. The Tribunal affirms the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Mr RG Kenny, Member
Signed: Michelle Brazier
Legal Research Officer
Date of Hearing 2 August 2006
Date of Decision 16 October 2006
For the Applicant Mr A Harding, of Counsel
Terrence O’Connor, Lawyers
For the Respondent Mr J Stoner, Departmental Advocate
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