Ian Hind and Repatriation Commission

Case [2014] AATA 565

[2014] AATA 565

Division Veterans' Appeals Division

File Number

2014/0262

Re

Ian Hind

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 15 August 2014
Place Brisbane

The Tribunal affirms the decision under review.

............................[Sgd].......................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Disability pension – Defence service with Royal Australian Air Force – Malignant neoplasm of the bladder – Condition related to smoking cigarettes – Statement of Principles for malignant neoplasm of the bladder – Smoking not related to defence service – Condition not defence caused – Decision affirmed

LEGISLATION

Veterans' Entitlement Act 1986 (Cth) ss 5D, 14, 69, 70, 120, 120B

CASES

Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 29 ALD 609

Repatriation Commission v Smith (1987) 15 FLR 327

Roncevich v Repatriation Commission (2005) 222 CLR 115

Tuite and Repatriation Commission [1992] AATA 672

Wootton and Repatriation Commission [1992] AATA 150

SECONDARY MATERIALS

Statement of Principles concerning Malignant Neoplasm of the Bladder (No. 97 of 2011)

REASONS FOR DECISION

Mr R G Kenny, Senior Member

15 August 2014

BACKGROUND

  1. On 30 November 2012, Ian Hind (“the applicant”) lodged a claim under s 14 of the Veterans’ Entitlements Act 1986 (“the Act”) for a pension alleging that his malignant neoplasm of the bladder was attributable, in accordance with s 70(5) of the Act, to his service with the Royal Australian Air Force (“RAAF”). The claim was rejected by the Repatriation Commission (“the respondent”) on 17 June 2013 and by the


    Veterans’ Review Board on 25 September 2013. 

    SERVICE

  2. The veteran’s RAAF service was from 17 January 1963 until 17 January 1983.


    His service on and after 7 December 1972 comprised defence service in accordance with s 69(1) of the Act.

    CAUSATION AND ISSUES

  3. Section 70(1) of the Act provides that, where a member of the forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The term “disease” is defined in s 5D(1) of the Act to mean any physical or mental ailment, disorder, defect or morbid condition. It is common ground that the condition claimed by the applicant is a disease as that term is defined. The criteria of causation are set out in s 70(5) of the Act and, accordingly, the disease is taken to be defence-caused if it arose out of, or was attributable to, any defence service of the applicant.

  4. Where defence service has been rendered, the standard of proof applicable to the determination is set out in s 120(4) of the Act which requires that matters are to 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 the probabilities.[1] The application of that provision is affected by the terms of s 120B(3) of the Act which reads:

    (3)       In applying subsection 120(4) to determine a claim,…

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AGLC
Ian Hind and Repatriation Commission [2014] AATA 565
Case
[2014] AATA 565
Decision Date

CaseChat Overview and Summary

The case of Ian Hind and Repatriation Commission involves the applicant, Mr Hind, who is seeking compensation for his malignant neoplasm of the bladder, claiming it arose out of or was attributable to his service in the Australian Defence Force. The matter was heard and determined by the Administrative Appeals Tribunal of Australia. The central issue before the Tribunal was whether Mr Hind's bladder cancer was attributable to his service, specifically whether his increased smoking habit during his service could be considered a result of his defence service.

To address this issue, the Tribunal considered the applicant’s smoking habits and their relation to his service. Mr Hind had a long history of smoking, which increased during his service in Malaysia due to various factors including financial improvement and the affordability of cigarettes. However, the Tribunal concluded that the increase in smoking was a matter of personal choice and not attributable to his defence service. The Tribunal relied on the requirement for a causal relationship between the injury and the service as established in previous cases such as Wootton and Repatriation Commission. Given the lack of a causal link between the service and the increase in smoking, the Tribunal found that Mr Hind’s bladder cancer was not attributable to his defence service.

In conclusion, the Tribunal upheld the decision under review, affirming that Mr Hind’s bladder cancer was not caused by his defence service. The Tribunal noted that while Mr Hind had smoked for many years and increased his smoking during his service, this increase was due to personal choice and financial factors rather than any requirement or condition of his service. Therefore, the Tribunal found no basis to attribute his bladder cancer to his defence service, resulting in the rejection of his claim for compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue for the Tribunal to determine is whether the applicant’s malignant neoplasm of the bladder arose out of, or was attributable to, any defence service rendered by him. EVIDENCEThe applicant On 25 February 2013, the applicant completed a statutory declaration. He also completed a smoking questionnaire on 27 November 2012 and gave oral evidence at the hearing. He was born in April 1946 and, at age 16 years, he joined the RAAF where he trained to be an aircraft maintenance engineer/airframe fitter. The applicant was married in 1966. He commenced smoking shortly after his enlistment in the form of “roll your own” cigarettes with a 2 oz packet of tobacco every two to three weeks. Smoking was not discouraged by the RAAF and breaks during the day were called “smokos”. He wrote in his smoking questionnaire that he began smoking because he was “living away from home”, “peer pressure”, “smoke breaks” and “boredom”. When he finished his apprenticeship at 18 years of age, he was paid more and was able to afford packets of tailor made cigarettes. Initially, a packet of 20 cigarettes would last two to three days. In his questionnaire, he wrote that he was smoking 15 cigarettes per day by the commencement of his defence service in 1972. By then, he would consume an average of two “stubbies” of beer each evening and would only attend a wet canteen on rare occasions. In his service prior to 1973, the applicant was certified as proficient in the servicing, repairing and marshalling of the following wide range of aircraft types: the Neptune, Dakota, Vampire, Canberra, Winjeel, Meteor, Sabre, Mirage, Otter, Macchi, Alouette helicopter and the Mirage IIIO and IIID. This included what he described as the more advanced “deeper maintenance” of the aircraft, particularly on the Mirage. His posting preferences included Malaysia though he agreed that he was qualified to work at any base in Australia. In 1973, he was posted to Butterworth where he served from April 1973 until July 1975 before returning to Australia where he was based at RAAF Base Amberley. The applicant was not given any formal briefing by the RAAF about what to expect in relation to the living conditions and life-style options in Malaysia where conditions were stiflingly hot, oppressive and sticky. However, he had some understanding of what to expect from information provided by other airmen who had been posted there previously. He and his wife were happy to be going to Malaysia and viewed it as an opportunity to obtain financial advantage from various allowances associated with being stationed there. The applicant and his family lived in married quarters on Penang Island which necessitated his commuting to and from his home to the base on the mainland. This took about an hour each way and comprised a walk to a bus stop, bus to the ferry terminal, ferry to the mainland and then a bus to the base at Butterworth. Return in the evenings was the reverse of those movements. Waiting points, the buses and the ferries were always very unpleasantly crowded. The applicant’s evidence was that he would smoke some six to eight cigarettes during each of his pre and post work commutes.

Decision

Reasons for decision

I am reasonably satisfied that the decision by the applicant to increase his smoking at Butterworth was a matter of personal choice by him with merely a temporal connection to his service abroad. It was not attributable to his service at that posting. I am reasonably satisfied that, in accordance with s 70(5) of the Act, the applicant’s smoking is not attributable to his defence service and that his bladder cancer is therefore not defence-caused by that means. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Mr B Williams submitted that the main reason for the applicant’s increase in smoking levels was that he had improved his financial circumstances and because cigarettes were extremely cheap to purchase. This was supported by the sudden reduction of the applicant’s smoking levels when he returned to Australia where he was faced with higher costs of smoking. CONSIDERATION I have noted Mr B Williams’ concession concerning the satisfaction of the factor in the Statement of Principles. This is that the applicant smoked at least five pack-years of cigarettes, with smoking having commenced at least ten years before the clinical onset of malignant neoplasm of the bladder. In so doing, I have some reservations about his evidence of smoking 40 cigarettes during a normal day’s work, given that he was not able to smoke when working on aircraft, which was his job, and was restricted to smoking in the break out area when consulting manuals. Similarly, I have concerns about the applicant’s evidence that he smoked eight cigarettes when travelling to and from work each day over the period of one hour, mostly in crowded situations. Nonetheless, on the applicant’s evidence, which was not challenged, I accept that Mr B Williams’ concession with respect to the factor in the Statement of Principles was properly made. The five pack-years were in addition to the level of the applicant’s smoking prior to 7 December 1972. The evidence of Dr Coughlin is consistent with a clinical onset as required by the Statement of Principles. I do not accept as correct the submission of Mr J Williams that s 70(5) of the Act does not require a causal association between the applicant’s smoking and his defence service. In Wootton and Repatriation Commission,[3] relied on by both parties, the Tribunal made it clear that a causal relationship was required when considering whether an injury arose out of or was attributable to defence service under s 70(5) of the Act. The Tribunal said:[3] [1992] AATA 150 at [15]. 15. The applicant must show that his injury "arose out of or was attributable" to his defence service. As was pointed out by Toohey J in Law v RepatriationCommission 29 ALR 64 at 72 the expression "arising out of" requires a less proximate relationship of the injury to defence service, than would be required to satisfy the words "caused by". This is not to say that there must not be an element of causation. Indeed there must be a causal relationship between defence service and the injury but the relationship is to be determined inaccordance with "common sense principles" (March v Stramare [1991] HCA 12; 99 ALR 423 at 440) and in accordance with the beneficial nature of thelegislation (Starcevich v Repatriation Commission 76 ALR 449 at 454).Furthermore, the cause need not be the sole or dominant cause. It is sufficient to show attributability if the cause is one of a number of causes, providing it is a contributing cause (Repatriation Commission v Law [1980] FCA 92; 31 ALR 140 at 151).