John Tucker and Repatriation Commission

Case [2014] AATA 610

[2014] AATA 610

Division Veterans' Appeals Division

File Number

2014/1715

Re

John Tucker

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 28 August 2014
Place Brisbane

The Tribunal affirms the decision under review.

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

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – Defence service with Australian Regular Army – Diagnosis of smoking related chronic bronchitis – Application of Statements of Principles – Not reasonably satisfied that smoking attributable to eligible war-service – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 14, 68, 69, 70, 119, 120, 120B

CASES

Arnold v Comcare (2010) AATA 660

Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363

Repatriation Commission v Gorton (2001) 65 ALD 609

Repatriation Commission v Keeley (2000) 60 ALD 401

Smith v Repatriation Commission [1999] FCA 1484

Starcevic v Repatriation Commission (1987) 18 FCR 221

Wall v Comcare (2004) AATA 229

SECONDARY MATERIALS

Statement of Principles concerning chronic bronchitis and emphysema No. 31 of 2004

Statement of Principles concerning chronic obstructive pulmonary disease No. 38 of 2014

REASONS FOR DECISION

Mr R G Kenny, Senior Member

28 August 2014

BACKGROUND

  1. On 18 December 2012, John Tucker (“the applicant”) lodged a claim, in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with the Repatriation Commission (“the respondent”) for “chronic bronchitis/COAD" which, he contended, was related to his service in the Australian Regular Army (“the army”).


    On 15 January 2013, a delegate of the Repatriation Commission entered a diagnosis of chronic bronchitis and emphysema and rejected the applicant’s claim. On


    26 February 2014, the Veterans’ Review Board (“the Board”) affirmed that decision.

    SERVICE and ISSUES

  2. The veteran rendered defence service under s 68 of the Act in the army from


    14 March 1977 until 30 June 2004. He continues to serve, but any claim relating to later service is not subject to the provisions of the Act and is not relevant in this matter. Under s 70(5) of the Act, a condition will be defence-caused if it arose out of, or was attributable to, any of his defence service.

  3. The standard of proof to be used in determining diagnostic matters and matters of causation in relation to defence service under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] Under s 120B of the Act, for matters of causation and defence service, consideration must be given to any relevant Statement of Principles (“SoP”) that has been published by the


    Repatriation Medical Authority (“RMA”). 

    [1] Fogarty v Repatriation Commission [2003] FCAFC 136, [34]-[35]; (2003) 37 AAR 363 at 373.

  4. The issue for determination is whether the claimed condition is defence-caused in accordance with s 70(5) of the Act. It will be seen below that the diagnostic terms of chronic airflow limitation and chronic bronchitis and emphysema now fall within the diagnostic term “chronic obstructive pulmonary disease”.

    EVIDENCE

    The applicant

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AGLC
John Tucker and Repatriation Commission [2014] AATA 610
Case
[2014] AATA 610
Decision Date

CaseChat Overview and Summary

John Tucker brought a claim against the Repatriation Commission, seeking recognition of his chronic obstructive pulmonary disease as a condition caused by his service in the Defence Force. The Federal Court of Australia was tasked with determining whether the applicant’s claimed lung condition was defence-caused under section 70(5) of the relevant Act. The primary issue was whether the applicant’s smoking, which led to his chronic obstructive pulmonary disease, was related to his defence service. This determination hinged on the interpretation of the Standard Operating Procedures (SoP) No. 31 of 2004 and SoP No. 38 of 2014, which require a smoking factor to be related to service to uphold the contention that the lung condition is connected with defence service.

The Court examined the evidence provided by the applicant, who stated that he had been smoking since his school years and that his smoking habits increased during his service in the Defence Force. The applicant argued that the culture within the Defence Force encouraged smoking, and he was provided with cigarettes during army functions. The Court noted that while the applicant was an established smoker before his enlistment, there was no clear evidence that his smoking was related to his service. The Court further considered the submissions of both parties, including the argument that section 119 of the Act should be interpreted liberally to give effect to its benevolent purpose, but also the counterargument that the Act does not allow for inferences to be drawn where evidence does not exist.

The Court concluded that the evidence did not support a finding that the applicant’s smoking was related to his defence service. The Court held that neither SoP No. 31 of 2004 nor SoP No. 38 of 2014 upheld the contention that the applicant’s lung condition was defence-caused. Consequently, the Court affirmed the decision of the Tribunal that the applicant's claimed condition was not defence-caused under section 70(5) of the Act. The Court's reasoning was based on the lack of evidence linking the applicant’s smoking to his service and the statutory requirement that the smoking factor must be related to service to uphold the claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue for determination is whether the claimed condition is defence-caused in accordance with s 70(5) of the Act. It will be seen below that the diagnostic terms of chronic airflow limitation and chronic bronchitis and emphysema now fall within the diagnostic term “chronic obstructive pulmonary disease”.EVIDENCE The applicant In a statement dated 6 May 2013, the applicant wrote that, over the years he had been incorrectly diagnosed as suffering from asthma when he had actually had a smoking-related condition. He wrote that smoking was strongly encouraged by the army and that it was a strong part of army culture, with cigarettes and cigars being provided at the Commonwealth’s expense during army functions such as dining-in nights and happy hours. He referred to a statement he made in 1996[2] where he wrote that he had stopped smoking in 1985 and had smoked no more than 10 cigarettes per day. He wrote that he was advised by a doctor who told him that it was in his best interests to declare a reduced level of smoking for a certain period and to advise of the cessation of smoking. The applicant wrote that, at that time, he believed he was suffering from asthma and was concerned about his army career. He wrote that he ceased smoking in 2008 and wished to retract his earlier smoking reference. [2] In his statement, he identified the year as 1995 but amended this to 1996 in his evidence. In evidence, the applicant said that he enlisted in the army almost immediately on finishing school after year 10. He had two or three cigarettes when he was still in school under the influence of other boys his age who smoked. He said that he realised that smoking was frowned upon in the home and at school and that he wanted to try it to be a “bad boy”. He said that he also consumed some alcohol during those school years. Shortly after he commenced his basic training he took up smoking on a daily basis. He said, one reason for doing so was peer pressure in that most of the members of his platoon smoked and he “followed the others”. He also identified the following factors: boredom, to calm him down, to help him stay awake when on night duties, and because he missed his family. He said that the army favoured smoking and that this was noted during work breaks when men were encouraged to have a cigarette especially because, during those breaks, non-smokers were selected to carry out additional duties such as cleaning up. The applicant said that, at that time, he had not been aware of any health concerns associated with smoking or that cigarette packets carried a health warning. The applicant said that, initially, he smoked about five to ten cigarettes per day and that this increased to a packet of 20 cigarettes per day until 1990 with additional cigarettes, to a total of about 30 cigarettes per day, on weekends when he would consume alcohol. He said that he ceased smoking when he was told that he suffered from asthma. This was in 1990 when he complained of bronchial problems. He then recommenced smoking in 1998 and attributed this to being separated from his wife at that time and living in different quarters.

Decision

Reasons for decision

Dr Oliver identified permanent smoking induced damage to the applicant’s lungs. Dr Allen concluded that the applicant suffers from chronic bronchitis and that this is related to his smoking. SoP No. 31 of 2004 deals with chronic bronchitis. SoP No. 38 of 2014 also deals chronic bronchitis as encompassed within the more general description of chronic obstructive pulmonary disease. Each of the SoPs includes a smoking factor. However, each of those SoPs also requires that the smoking factor be “related to service”.[11] I am not reasonably satisfied that the applicant’s smoking is related to his defence service and accordingly, I am reasonably satisfied that, as provided for in s 120B(3) of the Act, neither SoP upholds the contention that the applicant’s claimed lung condition is, on the balance of probabilities, connected with his defence service. It also follows that the claimed condition is not defence-caused under s 70(5) of the Act. [11] See cl 4 of SoP No. 31of 2004, and cl 5 of SoP No. 38 of 2014.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

For the respondent, Mr Adrian Crowe submitted that there was evidence that the applicant was an established smoker at the time of his enlistment into the army, that a relationship between his smoking and service cannot be established and that, as a result, his lung condition is not defence-caused. He submitted that s 119 of the Act cannot allow inferences to be drawn where evidence does not exist.CONSIDERATION I have noted the submissions of Mr Cullen and the authorities to which he has referred. Of these, in particular, the case of Smith v Repatriation Commission is concerned with a veteran with operational service and, accordingly, turned on the issue of whether there was a reasonable hypothesis on the material before the Tribunal. Unlike the situation here where the applicant rendered defence service, the issue was whether there was material pointing to a relationship between the relevant smoking and service. The Court, in that case, determined that the Tribunal erred in holding, in effect, that the causative element of the hypothesis about the commencement of smoking was not raised because there was no direct evidence establishing it.[8] In this case, there is clear evidence that the applicant was a regular smoker prior to his enlistment. [8] Supra at [9] and [18]. Mr Cullen submitted that the beneficial purpose of the Act should be considered because of the terms of s 119 of the Act which, in so far as potentially relevant, reads: 119 Commission not bound by technicalities(1) In considering, hearing or determining, and in making a decision in relation to:(a) a claim or application;…the Commission:(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities. I accept that, in Starcevic v Repatriation Commission, it was stated that the Act should “be given a reasonably liberal interpretation”.[9] However, reference was not made in that case to s 119 of the Act which, as submitted by Mr Crowe, does not allow inferences to be drawn where evidence does not exist but, more importantly in this case, does not allow evidence which does exist to be ignored. [9] Supra at [18].