Higgins and Repatriation Commission
[2002] AATA 1126
•1 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1126
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2000/482
VETERANS' APPEALS DIVISION )
Re IRIS OLIVE MAY HIGGINS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member J.A. Kiosoglous, MBE
Date1 November 2002
PlaceAdelaide
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review.
(signed)
J. A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – entitlements – widow's pension – eligible war service – smoking contributed to veterans' death – whether smoking related to service – whether veteran's death war caused
Veterans' Entitlements Act 1986 ss.6, 6A, 7, 8, 11, 13, 120, 120B
Statement of Principles: Instrument No. 74 of 1997
REASONS FOR DECISION
1 November 2002 Senior Member J.A. Kiosoglous, MBE
This is an application by Mrs Iris Olive May Higgins (the applicant) for review of a decision of the Veteran's Review Board (VRB) dated 27 November 2000 (T2) which affirmed a decision of a delegate of the respondent dated 29 June 1998 (T10) rejecting the death of the applicant's husband Mr Clifford John Higgins ("the veteran") as war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 ("the Act").
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), together with seven exhibits, three lodged by the applicant (Exhibits A1-A3) and four lodged by the respondent (Exhibits R1-R4). In addition the Tribunal heard evidence from the applicant and her sons Mr John Thomas Higgins and Mr Clifford James Higgins. The applicant had as her spokesperson before the Tribunal her son, Mr John Thomas Higgins. The respondent was represented by Mr G. Doube, a departmental advocate.
Issue
The issue before the Tribunal is whether or not the veteran satisfies the relevant Statement of Principles (SOP) for Chronic Bronchitis and Emphysema (T14/67-70), being Instrument No. 74 of 1997.
Legislation
Under s. 13(1)(a) and (c) of the Act a dependent of a veteran whose death was war-caused is eligible for a pension. Under s. 11 of the Act a widow is recognised as a dependant. In determining the applicant's eligibility under s. 13, the Tribunal also had regard to sections 8 and 120 of the Act which provide as follows:
"8. War-caused death
(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;
(c)…
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service;…"
"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.
(2)Where a claim under Part IV:
(a)in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(3)…
(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.
…"
Section 120(4) is modified by s. 120B, which relevantly states:
"120B Reasonable 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)....
(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.
…"
There is in force a relevant Statement of Principles, being Instrument number 74 of 1997. At issue is whether the veteran satisfied factor 5(b), by
"smoking at least 15 pack-years of cigarettes, or the equivalent thereof of other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;…"
Paragraph 7 of the SOP defines a "pack-year" as 7,300 cigarettes. The Tribunal notes that factor 5(b) thus requires the veteran to have smoked a total of 109,500 cigarettes before the onset of illness.
History of the Application
The veteran was born on 24 February 1920 and served in the Australian Army during World War II from 7 June 1943 until 8 February 1944. He did not serve outside Australia, nor in the Northern Territory prior to November 1943. Hence the whole of his service constitutes "eligible service" pursuant to s. 7(1)(c) of the Act, but not "operational service", see ss. 6 and 6A.
The veteran died on 18 November 1989 aged 69 years. The death certificate (T5/37) lists the cause of death as being "congestive cardiac failure due to chronic obstructive airways disease" over a duration of five years.
The applicant, who is aged 77 years, submitted a claim for a pension to the respondent on 14 May 1998 (T5) in respect of the death of the veteran. This was rejected on 29 June 1998 by a delegate of the respondent (T10). The applicant lodged an appeal to the VRB on 6 November 1998 (T11) and the VRB on 27 November 2000 (T2) affirmed the decision of the delegate. The matter has come before this Tribunal as a result of an application to the Administrative Appeals Tribunal for review of the decision of the VRB (T1).
Evidence of the Applicant
The applicant stated in her evidence that apart from a couple of matters set out in her statement (Exhibit A3) the rest of that statement was true and correct. The matters which she stated were incorrect resulted from her being confused at the time she made the statement due to ill health. She stated that she married the veteran on 22 November 1947. She further stated that she first met the veteran when working as a nineteen year old at a hotel in Cowell. At the time the veteran and a friend of his were on their way for a holiday at Port Lincoln. On the way there they stopped at Cowell where he met her and as a result did not go on to Port Lincoln. She stated that he told her that he was going to go from there to the Keswick Barracks in Adelaide to join the Army. She did not see the veteran again until after he came out of the Army.
The applicant stated that in early 1947 she went to Whyalla to live with her grandmother. She stated that after she had been there a couple of months the applicant arrived there together with his brother, Thomas Higgins, and lived some three streets away from where she resided. After seeing him for the first time on his return from the army she stated that she saw him regularly and they married a few months later in November 1947. They had three sons as a result of the marriage.
The applicant stated that when she first met the applicant in Cowell she could not smell any smoke smells or anything similar on him nor on his clothes. She did not see him have any packets of cigarettes nor did she see him smoke. When she next saw him in Whyalla after his discharge he was smoking and continued to do so thereafter. She stated that he mainly bought tobacco and rolled his own cigarettes but also occasionally purchased packets of cigarettes. She further stated that he smoked about 60 cigarettes a day. She stated that on his return from the army prior to marriage and then after marriage he smoked about the same number of cigarettes.
The applicant stated that the veteran had told her that he had not smoked until he entered the army. She stated that he did not actually say when he started smoking but that the army gave him the cigarettes and he smoked them. She further stated that he commenced smoking tobacco after he came out of he army. She stated that the veteran explained to her that he started smoking because he was stressed in the army as he had a very sick mother as well as a brother, Kenneth Higgins, in the Air Force serving in Japan fighting the Japanese. He was worried about whether or not he would see his brother again and feared his being killed in Japan. She stated that Kenneth Higgins did return after the war. As to his mother, the applicant stated that the veteran's concern for his mother was that she was seriously diabetic and had many things wrong with her and he was worrying about something happening to her while he was not there. She stated that it was these stresses relating to his mother and brother that caused the veteran to smoke and to smoke so many cigarettes. In cross-examination she stated that all she knew about the veteran prior to his enlistment was that he was a farm worker who was going to join the army and that he had told her in Cowell about his sick mother. She stated that he enlisted but was also worried about his mother.
As to her statement (Exhibit A3), the applicant testified that the confusion it contained was in relation to her therein describing the veteran as being a moderate smoker. In her evidence she stated that this in fact was wrong and that he was a heavy smoker and that he did smoke inside the house but when he did he would empty his own ashtrays.
The applicant stated that the other incorrect statement was in reference to the section 37 document T8/52-53 wherein it stated that the veteran didn't smoke. She stated that her son, John, had filled out this document and that she had signed it without reading it. She stated that at the time she was very confused as she was under "heavy sedation" for heart trouble. She was unable to recall having signed any other form. During cross-examination she stated that in reference to the form at T8/52 she did question her son, John, and she first stated that she could not remember what he replied. When the question was put to her again, she said that John answered, "I just done it", but she did not pursue his further.
During cross-examination the applicant stated that her memory had not been very good due to her illnesses. She stated that she was at her worst stage in about 1999. She said that she was not very good at the time the Claimant Report (T8/52) was lodged, and was quite depressed at the loss of her husband. She agreed that her memory lapses condition could have existed for more than three and a half years.
Also in cross-examination she stated that the veteran first put down his name to enlist in the army in 1941 but that he did not join until actually called up in 1943. She stated that the meeting in Cowell between herself and the veteran was "love at first sight". Although they saw each other for those couple of days she did not see him again until after his discharge from the army and that there was no contact between them during his time in the army.
In cross-examination she stated that in Cowell she had not taken any prior notice if he was smoker and she did not smell any smoke on him. She stated that whilst he was with her she did not notice him smoking and she was unable to say if he smoked when away from her. She stated that she had been told by the veteran's sister, Mona Twigden, that he had never smoked until he joined the army.
The applicant stated that the veteran did not always live at home with his family prior to marriage as he worked around the area as a farmhand. She did not know which of the veteran's siblings were living at home when she married the veteran apart from Mona who had married and moved to Brinkworth.
The applicant reiterated that the veteran first told her of his smoking after his discharge. It was put to her in cross-examination whether it was credible that the veteran had joined the army in 1943 at the age of 23 years, that prior to that he had been working for a number of years with people who smoked and had not been tempted, and yet once in the army he started smoking. She stated that the veteran had told her that prior to going into the army he was very careful with his money but once in the army as he was given his smoking rations and due to the stressors of his very sick mother and brother in Japan he started smoking.
When asked if prior to joining the army the veteran had been a member of the "militia", being a part-time citizens' military force, the applicant stated that her husband never mentioned whether he served in that organisation. She further stated that he was a very quiet man who never talked very much.
John Thomas Higgins
Mr Higgins stated that he is the eldest of the three sons of the applicant and the veteran. He stated that after leaving school he travelled extensively undertaking work at various locations including in Adelaide. He returned to Whyalla in early 1989 to be with his sick father as he knew the veteran did not have long to live. He stated that his father died on 18 November 1989.
Mr Higgins stated that he was able to remember his father telling him that he never smoked before joining the army and that once in the army the father was issued with cigarettes and tobacco. He further stated that his Aunt Mona Twigden, who was very close to the veteran, had told him that his father had started smoking when he joined the army. He also stated that his Aunt Mona had told him that his father never smoked before he went into the army.
Mr Higgins stated that he had attempted in later years to get his father to give up smoking but the veteran would not do so. From his own knowledge he stated that the veteran used to smoke a packet of tobacco (two ounces) per day and occasionally smoked ready-made cigarettes. He stated that his father would get about sixty cigarettes out of a two-ounce packet of tobacco. He did not know what quantity his father smoked in the army nor what he smoked upon leaving the army. He also stated that his father used to save the stubs and later smoked the tobacco. He stated that his father never wasted any tobacco and was very careful with his money. He further stated that he first came to understand the number of cigarettes his father smoked in the last nine months of the veteran's life and that the veteran continued to smoke heavily right up to his death.
Mr Higgins stated that he completed his mother's pension application form as she was too ill to do it herself at the time. He agreed that he had marked that his father did not smoke at all but could not explain this saying that he did not know why he indicated this. He also stated that the veteran's smoking history is documented in the medical reports.
In cross-examination Mr Higgins stated that his father had told him about his smoking in the last nine months of his life. He further stated that after the veteran had died this was re-affirmed as a result of his Aunt Mona telling him that the veteran commenced smoking when in the army.
In a statement (Exhibit A1) Mr Higgins referred only to the comments of his Aunt Mona as well as to those of a statement attached to this exhibit by another of his father's sisters, Valmai O'Sullivan. He made no reference therein to what he alleges his father told him. When asked in cross-examination why he had excluded from this document any reference to what his father had told him, he said he did not know why he had not put it in. He stated further that he did not think of it at the time and that he agreed it was probably important for him to have included what his father had told him.
Mr Higgins agreed that he had filled out the original claim form which was signed by his mother, the applicant, in June 1998. He stated that he did not really know why he had answered "no" to the question of whether the veteran smoked cigarettes on a regular basis. He agreed that this was not correct and that he was aware this was not correct. He stated that he knew his father was a regular smoker and that he had been told this by his father and Aunt Mona. He further stated that he could have filled out the rest of the form but did not know why he had not done so. He also stated that he did not know why he had neglected to mention in his statement that he was told by his father that the latter's smoking had started during the war.
Mr Higgins did not know whether or not his father may have served in the militia (meaning the former Citizens' Military Force) prior to enlisting. He stated that he did not know anything about his father before he went into the army. He could not say whether his father was living at home or had left home, nor could he say anything about his living arrangements. He also stated that he did not know what work his father did prior to enlistment.
Clifford James "Jim" Higgins
Mr Jim Higgins was the second son of the veteran and the applicant, and was born on 27 February 1951. He is a master plumber and is qualified as a plumber and as a coppersmith. He has resided in Whyalla all his life, with the exception of "a couple of years" in 1988-1989 which he spent in Antarctica. On leaving high school at the completion of his third year he joined the Whyalla shipyards as a coppersmith. When the yards closed in 1979 he became the town plumber at Iron Baron, but continued to live in Whyalla, commuting each day. Since about 1984 he has been self-employed as a plumber in Whyalla, with the brief exception mentioned above.
Mr Jim Higgins stated that he always remembers his father as a smoker. The witness stated that he had been closer to his father than his other brothers. He stated several times that he had discussed with his father the latter's smoking habit, and his knowledge of that habit stemmed from those conversations. He stated that his father told him that he (the veteran) had started smoking when he joined the army. When in military service he had been issued with tobacco. The witness said that when he queried the tobacco his father smoked in later life, his father replied that it was mild compared with what he had smoked in the army.
Under cross-examination Mr Jim Higgins stated that his father had in the army smoked both cigarettes and loose leaf tobacco, which he rolled into cigarettes ("rollies") himself. The witness was asked why his father had smoked the cigarettes that had been issued to him. Mr Jim Higgins replied that there was pressure in the army, and his father had been worried that he would be sent overseas. The witness also listed peer pressure as a factor.
Mr Jim Higgins stated that he helped his mother with her appeal to the VRB, and that he had filled out the application form which she subsequently signed (T11). He was referred to that form. On it, he wrote that his father started smoking in the war "due to pressure on him in the service due to bombing etc". In cross-examination, it was put to the witness that his father never served overseas and thus never experienced bombing. He responded that the reference to "bombing" referred to his father's apprehension that he might have to go overseas and face such situations. He said that this was an explanation given to him by his father.
Mr Jim Higgins stated that his father continued to be a "moderate" smoker on leaving the army. The veteran continued to roll his own cigarettes and would smoke "a good packet of Drum a day". Mr Jim Higgins had worked in a workshop adjacent to the one his father worked in at the Whyalla shipyards. Consequently, he had seen much of him throughout the day. He stated that his father would smoke at every break in work throughout the day, and so would smoke approximately every half hour.
The witness stated under cross-examination that his views were entirely his own. When he submitted his statement on the VRB application he said he only wrote what his father had told him. He stated that he had never even looked at an earlier statement of his brother, Mr John Thomas Higgins.
Valmai O'Sullivan
Mrs O'Sullivan is a sister of the veteran who was not called to give evidence. However, the Tribunal received, with the consent of Mr Doube, a very brief statement by her attached to the statement of Mr John Thomas Higgins (Exhibit A1). In it she states that the veteran was her brother and that she "never knew of him smoking before joining the militia."
Mona Twigden
Mrs Twigden was an older sister of the veteran who died about twelve months ago. In her statement (T12/63) she stated that the veteran started smoking cigarettes and tobacco whilst on active service in the army. She further stated that he continued smoking cigarettes and tobacco moderately after discharge up until his death on 18 November 1989.
Dr G. R. Crowe, Physician
Before the Tribunal were several reports of Dr G. R. Crowe, consultant physician. Dr Crowe did not appear before the Tribunal. The first of his reports was a letter to the Department of Veterans' Affairs (DVA) dated 30 October 2000 (T13), in reply to a letter from that department. In his letter Dr Crowe apparently bases his comments on the death certificate of Mr Higgins, and not from any clinical examinations or interviews prior to the veteran's death. Dr Crowe states that "it is reasonable to assume" that the veteran's heart failure was caused by smoking. The doctor writes that in the second world war smoking was nearly universal amongst troops and that tobacco was cheap and widely available. It was the doctor's opinion that a soldier might well feel he was "missing one of the privileges accorded to him as a member of the forces" if he did not smoke. Dr Crowe's conclusion was that "It is possible to make a case that Mr Clifford Higgins' heart failure was due to his smoking habits and that these habits were encouraged by his military service."
On 2 March 2001 Dr Crowe wrote a short note (Exhibit A2) to the effect that Mr Higgins' death was related to his smoking. The doctor further stated that the deceased's smoking habit commenced during his war service, and that "service anxiety" entrenched the habit. The note makes no mention of the sources of these beliefs of the doctor.
In an undated letter before the Tribunal (Exhibit R2), Mr de Rohan, then the applicant's solicitor, wrote to Dr Crowe. He requested whether the doctor had advised the veteran about smoking, whether the veteran had ever discussed the commencement and history of his smoking habit with the doctor, and whether the doctor considered that the veteran's illnesses could be related to the relevant Statement of Principles. The doctor replied in a letter dated 15 August 2001 (Exhibit R2). The doctor stated that the letter was not a report for medico-legal purposes and thus cannot be treated as such a report. He stated that he had not seen the veteran in his last illness, and no longer had any treatment records for him. It is, however, possible to infer from the letter that Dr Crowe had at some point seen the veteran as a patient. The doctor states that he can recall no specific information with regard to the veteran. He states only that it is his standard practice to advise people about smoking, and that smoking was "the norm and custom in the barrack room and boredom of it would have made discontinuing the habit difficult".
In a letter to Dr Crowe dated 2 July 2002 (Exhibit R4), Mr Greg Doube, acting for the respondent, questioned the doctor about many of the statements the doctor made in his letter of 30 October 2000 (T13). Specifically, he questioned the doctor's statements concerning the ubiquity of smoking among troops in the second world war, the low price and wide availability of tobacco to servicemen, and the source of the doctor's knowledge of the history of the veteran's smoking habit.
The doctor replied to Mr Doube's letter on 16 September 2002 (Exhibit R3). The doctor again prefaced his letter with the words "not for medico-legal purpose", so it shall not be treated as a medical report proper by the Tribunal. In this letter the doctor states that his knowledge of the smoking habits of servicemen in the second world war was based upon general sources, such as his reading, news footage, films and conversation with his brother, who served in the Royal Navy. Dr Crowe stated that Mrs Higgins had informed him of the veteran's smoking history, specifically that he acquired the habit during the war. The doctor closed by asserting that based on common knowledge, it is easy to see how military service could encourage a smoking habit.
Submissions
Mr Doube for the respondent submitted that in this matter the standard of proof required is one of "reasonable satisfaction" and not one requiring merely the raising of a "reasonable hypothesis" as the veteran did not have "operational service" under the Act. He further submitted that the sole issues before the Tribunal are those relating to the veteran's smoking habit such as the need for the Tribunal to determine if the veteran was a smoker, and if so, if such commenced due to the nature and conditions of war service. He also submitted that there must a clear case for the evidence pointing towards those issues for the applicant to succeed.
Mr Doube submitted that the evidence of the applicant was often confusing, for which explanation had been offered by reference to her ongoing medical problems over a number of years. He submitted that it was clear on the evidence before the Tribunal that the veteran certainly left home frequently prior to enlisting. He also submitted that statement's by the applicant's sisters, Valmai and Mona, were inconsistent. One said that he commenced smoking in the army whilst the other referred to his not smoking before joining the militia which was prior to enlistment. However, Mr Doube challenged their evidence submitting that the evidence was not clear as to whether or not the veteran was even living with his sisters at the time prior to his enlistment.
Mr Doube submitted that the evidence from the family-members states that the veteran did enlist and that he started smoking during his war service. He further submitted that, notwithstanding such evidence from the applicant and Mr John Higgins, there were some unexplained untruths or confusions in their evidence.
Mr Doube in reference to the reports of Dr Crowe (Exhibits R2 and R3) wherein the doctor refers to the veteran's war-caused smoking habits submitted that the reports clearly indicate that Dr Crowe's knowledge of the veteran's smoking history was based upon what he had been told by the applicant. Mr Doube submitted that there still remained the issue of why the veteran commenced smoking.
Mr Doube submitted that the veteran at enlistment was 23 years of age and that prior to this had been in the workforce for a number of years. He further submitted that the veteran had a sick mother at the time of his enlistment and was aware that by enlisting the veteran was putting himself in the position where he could be sent overseas. Mr Doube submitted that it was interesting to note that up to this stage, notwithstanding all of these situations, none of these had at this point put pressure on him to take up cigarette smoking. He also submitted that the veteran's enlistment was voluntary.
Mr Doube also referred to another of the reasons given by the applicant as to why the veteran started smoking. He referred to the explanation by the applicant that the veteran had a brother in Japan in the Air Force and feared that his brother would not return. In response to this Mr Doube submitted that the veteran enlisted in June 1943 and was discharged in February 1944. He further submitted that at that time there were no allied servicemen in Japan, nor were there any until Armistice in August 1945, by which time the veteran had already been out of the service some eighteen months.
Mr Doube submitted that the reasons for which it is claimed the veteran commenced smoking are not supported by recorded history or by the documentary evidence.
Mr John Higgins in his submission referred to several matters. First, he stated that the family was upset by Dr Crowe. He submitted that Mr Clifford "Jim" Higgins was suing him about a professional debt and that since that situation arose the doctor's opinion had become less favourable to the applicant. When told that this was of no relevance to this Tribunal, Mr Higgins did not continue with this submission. The second matter submitted by Mr Higgins was that his mother, the applicant, proved during the hearing that she is confused due to illness and the passage of time. Mr Higgins implied that this could account for any inconsistencies in her testimony.
Discussion and Findings
As stated at the outset, the issue in these proceedings is whether or not the veteran's death was caused by his eligible war service, applying the relevant Statement of Principles.
Pursuant to the relevant legislation and Statement of Principles, for the applicant to succeed she must demonstrate on the balance of probabilities that the veteran smoked 15 pack-years of cigarettes before becoming ill, that he commenced smoking during his eligible war service, and that his doing so was related to his war service. That is to say, his taking up the habit must be causally and not only temporally linked to his service.
The Tribunal has taken the evidence as a whole into account. Based upon the evidence before it, the Tribunal is satisfied and so finds that:
The veteran, Clifford John Higgins, enlisted in the army in June 1943;
The veteran was discharged from the army in February 1944;
The veteran's service satisfies the requirement for "eligible service";
The veteran smoked a substantial amount.
The Tribunal notes that in cases such as the one before it, much reliance must necessarily be placed upon hearsay concerning the habits of the deceased. Of course the Tribunal is not bound by the rules of evidence, but it renders the reliability of much crucial evidence more difficult to ascertain. This problem was exacerbated in the current instance by the unavailability of two witnesses, sisters of the veteran. Consequently, many inconsistencies and uncertainties could not be resolved by oral examination and cross-examination.
All the witnesses who appeared before the Tribunal stated in their oral testimony that the veteran smoked. Moreover, they all agreed that the veteran smoked about one two-ounce packet of tobacco per day, producing approximately 60 hand-rolled cigarettes, which he occasionally substituted with ready-made cigarettes. Several other written statements before the Tribunal attest to the veteran's smoking.
Mr John Higgins said he had completed on behalf of his mother the form contained in the section 37 document T8/52-52. In one question, he had stated that the veteran did not smoke regularly. Mr John Higgins agreed that this statement was incorrect. He gave no satisfactory explanation for this statement. For her part, the applicant stated that she did not fully comprehend what her son had written therein, and that when a departmental official had telephoned her to query her late husband's smoking habits she remained confused as a result of medication, in addition to the fact that she had not recovered from the death of her husband. (The Tribunal notes that on another form, the applicant answered "yes" to the question "Did the veteran ever smoke" – T5/32.) Notwithstanding the incorrect statement on the form (T5/52), the Tribunal is satisfied on the evidence before it that the applicant was more than what could be described as a moderate smoker. The quantities and time period described by the witnesses easily satisfy those required by the SOP. There is not much in this finding, however, as the Respondent made no contention that the veteran did not smoke (see its Statement of Facts, Issues and Contentions, Exhibit R1).
The Tribunal finds that there was much confusion and self-contradiction both within the applicant's oral evidence and her statement. The Tribunal is satisfied that this was the result of her age and illness.
The applicant stated that the veteran commenced smoking whilst in the army. She stated that when she met him prior to his enlistment she could not smell smoke on him or his clothes. She did not see any cigarettes in his possession, nor did she see him smoke. This opinion, however, was based upon an acquaintance of no more than a few days. In cross-examination the applicant stated that she had taken no prior notice of whether the veteran was a smoker, and she conceded that she was unable to say if he smoked when not with her. She stated that when she next saw him, after his discharge, he was smoking about 60 cigarettes a day. However, in her statement (Exhibit A3) she referred to the veteran as a "moderate" smoker. In her oral evidence she stated that this description was wrong and that he was in fact a "heavy" smoker. Of course, what is considered a "moderate" smoker is a matter of opinion, as Mr Jim Higgins used this term himself while stating that his father had smoked 60 cigarettes a day.
Reference was made by the veteran's sister Valmai to his serving in the militia. She stated (Exhibit A1) that she "never knew of him smoking before joining the militia". This raises the question of whether or not he served in the militia prior to enlistment and the possibility that he may have commenced smoking at that stage. None of the witnesses who appeared before the Tribunal knew whether the veteran had been a member of the militia.
The veteran's other sister, Mona, refers to his having commenced smoking whilst on active service in the army and in her statement asserts that he smoked moderately at all times thereafter.
Neither the applicant nor the statement's of the veteran's sisters reveal any knowledge of whether the veteran always lived at home with his family prior to enlistment while he worked around the area as a farmhand. This makes their assertions, particularly those of his sisters, that he never smoked before enlistment less convincing.
On the evidence before the Tribunal there is conflict as to when the veteran commenced smoking. His sister Valmai states that he commenced when he entered the militia, while all other witnesses state that the veteran told them he commenced smoking when he joined the army. None of this evidence is first-hand. The statements of the sisters are extremely brief. The evidence of the applicant was at times confused, her knowledge of her husband prior to enlistment was extremely brief while that of her sons was non-existent. On the other hand, the stories are for the most part in accord. The Tribunal has difficulty in ascertaining on the balance of probabilities that the veteran commenced smoking while in the army. .
Notwithstanding this, even if the Tribunal were satisfied that the applicant did commence smoking while in the army, the Tribunal needs to consider the reason for his so doing. The Tribunal has no difficulty in finding that the veteran's anxiety was either the cause of or a contributing factor towards his smoking. However the cause of that anxiety must be determined.
The applicant stated that the veteran explained to her that he commenced smoking whilst in the army as a result of stress. She further explained that this stress was due to the veteran's concern for his sick mother, compounded by the knowledge that his service would separate him from her. He was also concerned for one of his brothers alleged to have been in Japan fighting the Japanese. He feared his brother might be killed and he might not see him again.
In his evidence, Mr Jim Higgins referred to the apprehension his father felt at the prospect of serving overseas and experiencing war. He agreed in his oral evidence that he had written, in a form filled out for the purposes of the widow's application (T11), that the veteran had started smoking "due to pressure on him in the service due to bombing etc". When pressed on this he agreed that his father had never served overseas but was stressed at the possibility of being required to so serve.
Dr Crowe's evidence was comprised entirely of letters and reports of his before the Tribunal. In essence, he stated that the veteran's smoking habit commenced during his war service, and that "service anxiety" entrenched the habit. The Tribunal notes that in his initial letters the doctor makes no mention of the source of his beliefs. In his letter to Mr G. Doube dated 16 September 2002 (Exhibit R3), he states that he learnt that the veteran commenced smoking during the war from the applicant. His other comments about the nature of life in the services stem from his general knowledge. Consequently, the Tribunal is unable to give much weight to Dr Crowe's evidence, as he has in the main merely repeated what the applicant told him.
The Tribunal in considering the cause of the veteran's anxiety is satisfied that there is little evidence before it that links it in any way to his eligible war service. The evidence before the Tribunal gives the reasons for his anxiety as being the veteran's concern for his sick mother and for the safety of his brother in Japan. Mr Jim Higgins on the other hand referred to "pressure on him in the service due to bombing etc". When it was put to him that his father never faced such a situation, he explained that his father was anxious about the possibility of serving overseas and being confronted with war situations such as bombing.
There are two completely different stories before the Tribunal, and there is little to make one more plausible than the other. This makes it extremely difficult for the Tribunal to be satisfied on the balance of probabilities that one of the stories is accurate. Furthermore, the Tribunal notes that several of the explanations offered would, even if true, not entitle the applicant to succeed. The applicant's brother was not in fact in Japan until well after the veteran's discharge and hence there was no reason for any anxiety on this matter. The veteran enlisted of his own volition and prior to doing so was fully aware of his mother's illness. Moreover, any armed service by his brother and illness of his mother would have been present and troubled the applicant whether he had enlisted or not. As to anxiety in anticipation of serving overseas and in a war situation, while noting that such never in fact occurred, the veteran would have known that upon enlistment there was always the real possibility of service overseas.
On the evidence before it, the Tribunal is not satisfied that the veteran started smoking because of the nature and conditions of his eligible war service. Hence he fails to satisfy the requirements of the legislation and of the relevant SOP.
Decision
Accordingly, for the reasons outlined above, the decision under review is affirmed.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous, MBE.
Signed: .....................................................................................
John Howell, AssociateDate/s of Hearing 10 October 2002
Date of Decision 1 November 2002
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr G. Doube
Solicitor for the Respondent Department of Veteran's Affairs
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