Hocking and Repatriation Commission

[2005] AATA 245

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 245

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1334

VETERANS’ APPEALS DIVISION		)
Re		THOMAS HOCKING

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date18 March 2005

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Hocking’s peripheral vascular disease, chronic airways limitation and his ischaemic heart disease are due to eligible service.   This decision has effect from 23 November 2003.

.........................................

Ms N Bell,

Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL )                    No N2003/1334
VETERANS’ APPEALS  DIVISION              )

Re:THOMAS HOCKING

Applicant

And:REPATRIATION COMMISSION

Respondent

ORDER TO AMEND WRITTEN DECISION [2005] AATA 245

TribunalMs N Bell, Senior Member

Date23 March 2005

PlaceSydney

WHEREAS:

1.The Tribunal released a written decision in this matter, which was dated 18 March 2005.

2.It has come to the Tribunal’s attention that there was an error in the decision.

3.The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

NOW THE TRIBUNAL THEREFORE ORDERS that the decision should be read as follows:

DECISION

The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Hocking’s peripheral vascular disease, chronic airways limitation and his ischaemic heart disease are due to eligible service.   This decision has effect from 23 November 2000.

.................................
  Ms N Bell
   Senior Member

VETERANS’ AFFAIRS – Peripheral Vascular Disease – Ischaemic Heart Disease – Chronic Airflow Limitation – Whether Conditions Arose out of or Attributable to Service – SoP – Question of When Applicant Ceased Smoking – Date of Clinical Onset.

Veterans’ Entitlements Act 1986

Repatriation Commission v Tuite (1993) 29 ALD 609

Critch – Repatriation Commission (1996) 43 ALD 574

Repatriation Commission v Edwards (G250 of 1993)

Repatriation Commission v Thompson (2001) 63 ALD 1

REASONS FOR DECISION

18 March 2005 Ms N Bell, Senior Member

1.      Mr Thomas Hocking (now deceased) was born on 5 April 1912 and enlisted in the 6^th Light Horse between 1933 and 1936.  He then enlisted in the regular Australian Army in 1941 and was discharged in 1946. 

2.      Mr Hocking later suffered from a number of disabilities accepted by the Repatriation Commission as being due to his service.  However, his claim for peripheral vascular disease, ischaemic heart disease and chronic airflow limitation was rejected by the Commission on the basis that those conditions were not due to his service, though here is no dispute that Mr Hocking suffered from those conditions.

3. His regular Army service is eligible war service for the purposes of the Veterans’ Entitlements Act 1986 (the Act). The relevant standard pf proof is that of comfortable satisfaction. The question of whether Mr Hocking’s peripheral vascular disease, ischaemic heart disease and chronic airflow limitation are due to his service is governed by the Statements of Principle (SoP) concerning each of those conditions. All of these SoPs include factors that are based on a history of smoking to a prescribed level, at a particular time and/or for a particular duration relative to the clinical onset of the condition.

4.      Successful reliance on these factors is only available if Mr Hocking’s conditions, and therefore his smoking, arose out of or were attributable to his service (s. 9(1)(b) of the Act).

5.      If I conclude that Mr Hocking’s smoking arose out of or was attributable to his service, then I must consider whether the elements or requirements in each of the SoP factors relevant to his various conditions are met.  In this context, a key question of fact common to two of the conditions is the date on which Mr Hocking ceased to smoke.  The date of clinical onset of the relevant condition is also an important question in relation to two of the conditions.

The connection between Mr Hocking’s smoking and his service

6.      Mrs Elaine Starr, Mr Hocking’s daughter, gave evidence that her father had been brought up in strict Methodist family where it was forbidden to work on Sundays, drink alcohol, dance and smoke cigarettes. This confirmed the evidence given by Mr Hocking to the Veteran’s Review Board (R1, p7).

7.      According to the Claim form and Cigarette Smoking Report (T4) lodged by Mr Hocking on 23 February 2001, he started smoking at the age of 29 in 1941 when he enlisted in the regular Army. This was confirmed by the Statutory Declaration of his wife, Mrs Lenore Hocking and by Mr Hocking’s evidence to the Veterans’ Review Board, although his evidence to the Board on that point was equivocal (R1, p 6-7).  I note, however, that Mrs Hocking’s declaration is at odds with Mr Hocking’s evidence to the Board that he met his wife during the war.

8.      The Claim form also states that Mr Hocking started to smoke when he first went away from home. His evidence to the Veterans’ Review Board was that he went to camps a few times with the 6^th Light Horse but did not leave home before enlisting in the regular Army.

9.      Mr Hocking’s evidence to the Veterans’ Review Board was also that, once enlisted in the regular Australian army, he received a free ration pack of cigarettes every week. He said he was under peer pressure to smoke, because everybody else smoked. He also smoked to relax.  Mr Hocking also said it was a stressful time for him as he expected to be shipped overseas and was on alert every day. This evidence conformed with the information in the Claim form.

10.     In competition with this evidence is the fact of Mr Hocking’s involvement in the Light Horse over some 8 years, making him more accustomed than most to military life.  Added to this is the fact he was 29 years old when he joined the regular Army and less likely to be subject to peer pressure to smoke.  I also note that Mr Hocking’s service did not take place in a theatre of war and there is no evidence, other than his own, that he and his fellows were subject to significant or any stress.

11.     The contrast between his Methodist upbringing and his life in the Army does not of itself amount to a cause of smoking.  It may have been Mr Hocking’s mere absence from his Methodist home that made him disregard those restrictions.

12.     I had regard to the decision of the Full Federal Court in Repatriation Commission v Tuite (1993) 29 ALD 609, in which the Court held that the relevant question is whether life in camp was a contributing cause and not merely the setting in which the event occurred. I note, however, that the Court held the Tribunal’s finding that the circumstances of camp life, including its boredom, were capable of contributing to the veteran’s taking up smoking. I also had regard to the decision of the Federal Court in Critch v Repatriation Commission 43 ALD 574 and Repatriation Commission v Edwards (G250 of 1993).

13.     These decisions support the conclusion that peer pressure, anxiety and boredom in the Army during wartime may contribute to a veteran taking up smoking.  In particular, I note that in Edwards the Federal Court considered that even though the evidence in support of the Tribunal’s decision that the veteran’s smoking was due to his eligible service was “meagre”, that decision, supported by “some” evidence, should not be disturbed.

14.     On balance, and in the absence of any evidence to the contrary, I find that Mr Hocking’s smoking was contributed to by his eligible service.

When did Mr Hocking cease to smoke?

15.     Mr Hocking, in his Claim form in February 2001 stated that he stopped smoking in 1970.  However, in a form lodged in August 2001 he stated that he stopped smoking in 1990.  I note that the earlier form was not signed by Mr Hocking.

16.     Mr Hocking’s evidence, by telephone, to the Board was that he stopped smoking in 1990.  When answering the Board’s question he said that he had referred to a piece of paper before him with that date written on it.  It appeared he had no independent recollection of the date.

17.     The report of Dr Duggan dated 16 May records a history from Mr Hocking that he ceased to smoke in 1965 and had smoked approximately 20 cigarettes per week up until that time.

18.     The oral evidence of Mr John Starr, Mr Hocking’s son in law, was that Mr Hocking gave up smoking in 1990.  He recalled Mr Hocking being a very heavy smoker until that time.  He said he observed his father-in-law weekly.  He was able to date Mr Hocking’s ceasing to smoke by reference to an overseas trip taken by his family in the same year and recalled that his father in law was still smoking when Mr Starr’s son was born in 1986.  He said Mr Hocking had been advised to give up smoking by a doctor at the local Medical Centre.  He described Mr Hocking’s long term memory as good but said his short term memory was failing in the last few years of his life.

19.     Similar evidence was given by Mrs Elaine Starr, Mr Hocking’s daughter.

20.     Ms Eloise Starr, Mr Hocking’s granddaughter, born in 1982, gave evidence of her childhood recollection, after she started school, of her grandfather always being “down the back near his shed smoking”.  She said she saw her grandfather 2 or 3 times per week during this period and recalls that he was the only person in her family who smoked.  Ms Starr was 8 in 1990 and recalls that was the year her family went to the United States and also the year her grandfather ceased to smoke.  However, she allowed for the possibility that her grandfather may have ceased to smoke in either the year before or the year after that.

21.     Notwithstanding the inconsistencies in the forms completed by Mr Hocking and in the reported history by Dr Duggan, I am impressed by the evidence of Mr Hocking’s family.  Their evidence was tested in cross examination and, apart from the previous information given by Mr hocking, I have no reason to doubt it.  I note that the information given by Mr Hocking was given when he was some 90 years old and his short term memory was predictably not what it had once been.  I am satisfied, on the basis of his family’s evidence, that he ceased to smoke in 1990.

The SoP factors

22.     In relation to Mr Hocking’s peripheral vascular disease, the relevant SoP is No.66 of 2002.  The relevant factor in that instrument is factor 5(a) as follows:

“Smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least three years before the clinical onset of atherosclerotic peripheral vascular disease and where smoking has ceased, the clinical onset has occurred within 10 years of cessation.”

23.     No dispute was raised as to the amount of cigarettes smoked by Mr Hocking.  The evidence he gave to the Board was that from 1941 he smoked 10 to 40 cigarettes per day, increasing towards 40 after 1946, and this was confirmed in his later claim form.  I accept this evidence.  The clinical onset, or the onset of symptoms, of Mr Hocking’s peripheral vascular disease was put by Dr Bates, Cardiologist, in 1994.

24.     On this basis, and given that Mr Hocking ceased to smoke in 1990, his circumstances satisfy factor 5(a) of the instrument and his peripheral vascular disease is therefore caused by his eligible service.

25.     In relation to Mr Hocking’s chronic airways limitation, SoP No. 74 of 1997 was the instrument in force at the time of the original decision to reject Mr Hocking’s claim.  The instrument currently in force is SoP No. 31 of 2004.  As the instrument currently in force is more favourable to Mr Hocking’s circumstances, there is no difficulty with it’s application.  The factor relied on is factor 5(a) as follows:

“smoking at least 10 pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema.”

26.     Mr Hocking’s February 2001 claim form says that he first became aware of the signs and symptoms of the condition in 1960.  The condition was diagnosed by Dr Duggen in 2001.  Given that Mr Hocking smoked from 10 to 40 cigarettes per day from 1941, increasing towards 40 cigarettes per day from 1946, even if the date of clinical onset of the condition is placed at 1960, he satisfies the requirement of 10 pack years for the 10 years prior to the clinical onset of the condition.  It follows that his chronic airways limitation is due to his eligible service.

27.     In relation to Mr Hocking’s ischaemic heart disease, the relevant SoP in force at the time of the original decision was No 39 of 1999.  The instrument currently in force is No. 54 of 2003 and less favourable to Mr Hocking’s circumstances.  Therefore the law, in effect, changed with regard to Mr Hocking’s circumstances after the primary decision was made and its retrospective application would have a negative effect on Mr Hocking and thus impact on his accrued rights (Repatriation Commission v Thompson (2001) 63 ALD 1).  It is appropriate that I have regard to the SoP in force at the time of the primary decision.

28.     The factor in SoP No. 39 of 1999 relied on is factor 5(e)

“(e) where smoking has ceased prior to the clinical onset of ischaemic

heart disease,

(i) smoking at least one pack year but less than five pack years

of cigarettes or the equivalent thereof, in other tobacco

products, and the clinical onset of ischaemic heart disease

has occurred within five years of cessation; or

(ii) smoking at least five pack years of cigarettes or the

equivalent thereof, in other tobacco products, and the

clinical onset of ischaemic heart disease has occurred

within 10 years of cessation”

29.     I note that factor 5(e) applies where the clinical onset of the condition follows the cessation of smoking.  The clinical onset of Mr Hocking’s ischaemic heart disease was, according to Dr David Little, Mr Hocking’s General Practitioner, “at least 1991”.  Awareness of the signs and symptoms by Mr Hocking was placed by him at 1986.  Given that smoking ceased in 1990, it is appropriate to look also at factor 5(f) which concerns clinical onset prior to the cessation of smoking.  Factor 5(f) is:

“ (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”

30.     Given Mr Hocking’s rate of smoking, particularly in the later years, he satisfies both factors 5(e) and 5(f) and it follows that his ischaemic heart disease is due to his eligible service.

Decision

31.     The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Hocking’s peripheral vascular disease, chronic airways limitation and his ischaemic heart disease are due to eligible service.  This decision has effect from 23 November 2003.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ...............[Linda Blue].....................................
  Associate

Date of Hearing  3 February 2005
Date of Decision  18 March 2005
Counsel for the Applicant         Mr Craig Colborne
Solicitor for the Applicant          Mr Bret Williams
Advocate for the Respondent   Mr Nigel Bunn
Solicitor for the Respondent     Ms Lyn Firth