Ian Hind and Repatriation Commission
[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
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
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
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.
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, 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.
[1] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
Those provisions are concerned with matters of causation and require a consideration of any relevant Statements of Principles which have been published by the Repatriation Medical Authority.
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.
EVIDENCE
The 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.
The applicant’s workload involved maintenance and repair of Mirage aircraft with each aircraft being turned around to operational readiness in 25 to 30 days. At times, overtime shifts were required to meet timelines imposed on them. Initially, in Butterworth, the applicant was a corporal in charge of a section of men. On 1 November 1974, he was promoted to the rank of sergeant which saw some change to his duties in that, while he continued to be in charge of a team, he also had inspection duties to carry out. His evidence was that he felt no extra stress because of his promotion. The maintenance work was conducted in a large hangar. He was not permitted to smoke while working on the aircraft but the hangar had a break out area where copies of maintenance manuals were kept and where smoking was permitted. He frequently repaired to that area to consult the manuals. He estimated that he smoked some 40 cigarettes during his working day with his total daily consumption being 50-55 cigarettes.
The applicant’s pre-Butterworth average alcohol consumption of two stubbies of beer each evening at home increased fourfold to the equivalent of four large bottles of beer each day. This was done at his home especially after a heavy day at work and also in the airmen’s club at Penang. His increased smoking levels were associated with his increased alcohol consumption. The heavier smoking was further encouraged by the lower cost of cigarettes than was the case in Australia with a carton of 10 packets of cigarettes costing the equivalent of two packets in Australia. He believed that his posting to Malaysia led to his increased smoking because of the lower cost of cigarettes, the greater degree of socialising there and his lack of familiarity with the Malaysian culture. The need to live in a house with barred windows and doors highlighted the need to be careful and added to the stress of living there. This was demonstrated, in August 1973, by an assault on his wife by a local man who was employed by the Commonwealth as a gardener. The man was subsequently arrested and charged with offences. Also, the bicycles of the applicant’s children were stolen. The applicant’s evidence was that those incidents did not result in an increase in his smoking.
The applicant also attributed his greater level of smoking in Malaysia to the increased work pressure compared with his Australian service. He said that, typically, he would bring his work concerns home, thinking about whether particular maintenance tasks would be completed in time.
When he left Malaysia for Australia in 1975, he reduced his usage of cigarettes to about 20 cigarettes per day. He found the work at Amberley, while much the same as it was at Butterworth, was less stressful because of more flexible time frames for completion of tasks and the absence of any sense of urgency. The need for operational readiness in accordance with stricter timelines did not apply and there was no need for overtime sessions. Also, significantly, cigarettes were more expensive than they had been in Malaysia. He ceased smoking in 1977.
Elizabeth Gibson
In evidence was a statement from the applicant’s former wife, Elizabeth Gibson, who was with him in Malaysia. On 15 March 2014, she wrote that their move to Butterworth was something of a shock to both her and the applicant. She described poor living standards of the local people and a fear of harm from them. She believed that the applicant shared this and was concerned when he was at work and she was at home, especially after she had been molested by a person who came to the house seeking directions. She wrote that the applicant would smoke before breakfast and as he left the home each morning to go to work. She paid the account for the cigarettes purchased by him and she was aware that he was smoking more heavily than he had in Australia at the rate of some two to three packets of cigarettes each day. She noted that his behaviour changed especially after he was promoted to the rank of sergeant and she was never sure of what mood he would be in returning home each day or what time that would be because she was aware that he would always remain until all the required work was completed. Apart from allowing them to save money while there, she described the experiences in Malaya as not being very pleasant. Ms Gibson recalled that, when the applicant was completing a form prior to having dental surgery, he understated his rate of smoking because he was aware that the anaesthetist had a reputation for refusing treatment for anyone who smoked more than 20 cigarettes each day.
Neil DeVene
In a statement, dated 6 February 2014, Mr DeVene wrote that he had served with the applicant in Malaysia where he worked alongside him, travelled with him to and from work each day and socialised with him. He described stressful and difficult working conditions because of the heat and humidity, the need to work in confined spaces, and to do overtime shifts in order to complete work on aircraft. He said that he also smoked heavily in Malaya and estimated that he and the applicant would smoke up to
eight cigarettes each going to work which involved walking, and travelling by bus and ferry. He confirmed that it was common to understate smoking rates in medical examinations for fear of repatriation back to Australia.
Kenneth Mallett
Kenneth Mallett completed a statutory declaration on 4 March 2014 in which he stated that he met the applicant when he was based at Butterworth. He wrote that his own smoking increased while serving there because of the cheaper cigarettes, the hot and humid conditions and the stress of work. He was aware that the applicant had increased his smoking levels at that time. He confirmed that it was rumoured on the base that an anaesthetist would not agree to assist in procedures if smoking levels were greater than 20 cigarettes per day.
RAAF records
The applicant’s RAAF medical records were in evidence. A medical report, dated
24 March 1975, records the applicant as consuming “5-6 beers / night” and that he “smokes 20 [per] day”.
Medical evidence
The diagnosis of invasive urothelial carcinoma of the bladder was confirmed by urological surgeon, Dr Geoff Coughlin, in his report of 23 December 2012. He had first seen the applicant in the previous month after a referral from Dr David Hussey who had diagnosed the applicant’s bladder cancer.
STATEMENT OF PRINCIPLES
The Statement of Principles relevant to the applicant’s claim is the Statement of Principles concerning Malignant Neoplasm of the Bladder (No. 97 of 2011). The factor relied upon and associated definition read:
6. The factor that must exist before it can be said that, on the balance of
probabilities, malignant neoplasm of the bladder or death from malignant neoplasm of the bladder is connected with the circumstances of a person’s relevant service is:
(a) smoking at least five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the bladder, where smoking commenced at least ten years before the clinical onset of malignant neoplasm of the bladder;
…
9. 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 7300 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 7300 cigarettes, or 7.3 kilograms of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
CONTENTIONS
Mr John Williams
For the applicant, Mr J Williams submitted that the applicant began smoking cigarettes when he enlisted in the RAAF at age 16 and that he gradually increased before his posting to Malaysia during his defence service. He submitted that there was a rapid and extensive escalation of his smoking to some 50 to 55 cigarettes per day which continued until he returned to Australia in 1975. He submitted that this increased level of smoking satisfied the smoking factor in the Statement of Principles. Mr J Williams submitted that the increase was attributable to the applicant’s Malaysian service because of the following aspects of his service:
·the pressure on the applicant to complete complex maintenance and repairs on Mirage aircraft so they were returned to operational readiness within a strict time frame;
·oppressively hot and humid conditions;
·the changes in lifestyle and environment in Malaysia from that in Australia;
·the availability of cheap cigarettes;
·peer pressure; and
·boredom.
Mr J Williams also submitted that the applicant’s case was supported by the evidence of his ex-wife, of Mr Mallett and of Mr DeVene. He conceded that the assault on the applicant’s ex-wife would probably have had little impact on his smoking level as it had already increased significantly by the time the incident occurred. Mr J Williams submitted that the relationship of the increased level of smoking was not required by the Act to be a causal one so long as the smoking can be attributed to the applicant’s defence service.[2]
[2] Citing Wootton and Repatriation Commission [1992] AATA 150 and Tuite and Repatriation Commission [1992] AATA 672.
Mr Bruce Williams
For the respondent, Mr B Williams conceded that the threshold requirement of
five pack-years of smoking required in the Statement of Principles and the timing of that before the clinical onset of the applicant’s bladder cancer were met by the applicant. However, he submitted that s 70(5) of the Act requires a causal relationship between that increased level of smoking and the applicant’s service in order for it to be attributable to that service. It was significant, he also submitted, that the applicant had listed Butterworth amongst his posting preferences and that he was willing to be transferred there to gain a financial advantage associated with overseas allowances. Because of that, Mr B Williams submitted that it was not open to the applicant to attribute his increased smoking to environmental and cultural factors. He submitted that the applicant had established his proficiency in the work he was doing at Butterworth on the same type of aircraft in Australia before transferring to that base. He noted that the applicant’s duties had changed to some extent when he was promoted to sergeant but also noted the applicant’s evidence that this did not serve to increase his stress levels. It was also significant, he submitted, that, although Butterworth was on foreign soil, there had been no incidents of trauma or danger which constituted a threat to the RAAF personnel at the base during the applicant’s posting.
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 Repatriation
Commission 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 in
accordance with "common sense principles" (March v Stramare [1991] HCA 12; 99 ALR 423 at 440) and in accordance with the beneficial nature of the
legislation (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).
In Tuite and Repatriation Commission,[4] which again was relied upon by both parties, smoking was found, on the balance of probabilities, to have been attributable to
Mr Tuite’s eligible service in Australia. Mr Tuite had not smoked before he was called up, at age 24, for service in the army in 1940. The Tribunal noted earlier cases where conditions of service such as discipline, barrack style living and apprehension about what lay ahead were relevant considerations in attributing smoking to Mr Tuite’s period of service in a camp, as was evidence that he had been offered cigarettes by other servicemen.[5]
[4] [1992] AATA 672.
[5] The Tribunal’s decision was not disturbed, on appeal, by the Full Federal Court: see Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 29 ALD 609.
The following reference was made to the terms of s 70(5) of the Act by the High Court in Roncevich v Repatriation Commission[6]
The use disjunctively in s 70(5) of the expressions "arose out of" and "attributable" manifest a legislative intention to give "defence-caused" a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
[6] (2005) 222 CLR 115 at [27] per McHugh, Gummow, Callinan and Heydon JJ.
The circumstances of the applicant are very different from those experienced by
Mr Tuite. The applicant had been in the RAAF for almost 10 years before his defence service commenced. As at December 1972, he had a well-established smoking habit of some 15 cigarettes per day which had gradually increased during his first 10 years of non-eligible service. He was not living in barrack style accommodation as he had been married since 1966. Significantly, unlike Mr Tuite, the applicant’s service in Butterworth did not coincide with a time of war.
While I accept that the applicant was under a degree of pressure to ensure that deadlines for the servicing of aircraft were met, the clear evidence is that he was proficient in all aspects of that work prior to his Butterworth posting and had been doing the same work in Australia. There is no suggestion that he did not meet the RAAF requirements in Butterworth for turning around the Mirage aircraft in a timely manner. He did so while taking 40 smoking breaks each day, although I accept some of these would have been during lunch and other standard breaks from work. That the applicant was proficient in carrying out his responsibilities is demonstrated by his promotion to the rank of sergeant in November 1974.
While climatic factors were relied upon by the applicant, any relevance of that to the increase in smoking patterns is not apparent. I accept the contention of Mr B Williams that the applicant would have had an expectation of differences in lifestyle patterns in Malaysia from that in Australia. One such change may have included relationships with Malaysian people, a disturbing aspect of which was the assault on his then-wife by the gardener. However, it was the applicant’s evidence that this did not impact upon his smoking levels. The applicant may have experienced a degree of peer pressure in the early years of his RAAF service when he developed his smoking habit. However, there is no evidence that this continued after his defence service commenced. While
Mr J Williams identified boredom as a factor in his written submission, there was no evidence that the applicant was anything other than busily occupied with his work and his family from December 1972 onwards. Indeed, many of his proficiency achievements occurred in 1973.
I am satisfied that the reason for the applicant’s increase in smoking was the low cost associated with smoking cigarettes which were much cheaper than they had been in Australia before his transfer. The relevance of the cost of cigarettes as being the factor in making decisions about the extent to which he used cigarettes is confirmed by his ability to reduce his level to approximately 20 per day on his return to duty at Amberley. He said that he had rarely attended RAAF canteens before his Malaysian posting but, on Penang Island, he took the opportunity to spend time socialising in the men’s club where he met up with friends and fellow airmen. This contributed to his increase in levels of alcohol consumption which he associated with an increase in smoking levels.
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.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member..........................[Sgd]...........................................
Associate
Dated 15 August 2014
Date of hearing 24 July 2014 Counsel for the Applicant Mr John Williams Solicitors for the Applicant Mr Peter Wallace, Wallace Davies Solicitors Solicitors for the Respondent Mr Bruce Williams, Department of Veterans' Affairs
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