Johnston and Repatriation Commission
[2003] AATA 595
•26 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 595
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/475
VETERANS' APPEALS DIVISION ) Re LESLIE JAMES JOHNSTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date26 June 2003
PlaceSydney
Decision The decision under review is therefore set aside, and in substitution, the Tribunal determines that the condition of Ischaemic Heart Disease is war-caused with effect from 5 January 2001, and the matter is remitted to the Respondent to assess the rate of pension payable to the Applicant.
(Sgd) Rear Admiral A R Horton AO ……..………..................................…
Member
CATCHWORDS
VETERANS’ AFFAIRS - Veterans Entitlements - Disability Pension – whether Applicant’s condition of Ischaemic Heart Disease was war caused – Applicant’s smoking habit – whether SoP factor has been met – reasonable hypothesis.
Veterans’ Entitlements Act 1986: sections 119, 120 and 120A
Statement of Principles No 38 of 1999
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Robertson and Repatriation Commission (1998) 50 ALD 668
Re Cornelius and Repatriation Commission [2001] AATA 890
Repatriation Commission v Cornelius [2002] FCA 750 (14 June 2002)
Repatriation Commission v Bey (1997) 79 FCR 364
Mason v Repatriation Commission [2000] FCA 1409
REASONS FOR DECISION
26 June 2003 Rear Admiral A R Horton AO, Member 1.This is an application to the Administrative Appeals Tribunal (“the Tribunal”) by Leslie Johnston (“the Applicant”) for review of a decision of the Repatriation Commission (“the Respondent”) dated 2 June 2001 as affirmed by the Veterans’ Review Board on 1 February 2002. That decision refused a claim for Ischaemic Heart Disease and continued the disability pension at 70% of the General Rate. The Applicant lodged an application for review by the Tribunal on 11 April 2002.
2.At the hearing before the Tribunal on 2 May 2003, the Applicant was represented by Mr N Dawson of Counsel. Mr J Marsh, Senior Advocate, represented the Respondent. The Applicant gave oral evidence, as did Mrs Lilian Johnston, Mr John Carroll, Mrs Beryl Fisher, Mr John Hawkins and Mr Gary Shannon.
3.The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975.. The Tribunal also took into evidence the following:
Exhibit A1 Statement by the Applicant (undated)
Exhibit R1 Clinical notes of Dr K Wong, General Practitioner
Exhibit R2 Clinical notes of Dr P Russell, Cardiologist
Exhibit R3 Veterans’ Review Board Transcript of 1 February 2002
ISSUES
4. On 5 April 2001, the Applicant lodged a claim for Ischaemic Heart Disease which was refused on the basis that there was no service relationship to “smoking and stress”.. The pension for accepted disabilities continued at 70% of the General Rate. The Respondent accepts that the Applicant has the condition of Ischaemic Heart Disease, but that the smoking history does not satisfy the criteria in the relevant Statement of principles (“SOP”), that is No 38 of 1999, the Applicant having operational service during World War 2.
5. The Applicant also claimed the condition of bilateral open-angle glaucoma on 5 April 2001. This claim was also refused, and before the Tribunal, Counsel for the Applicant advised that review of this decision was not being sought.
EVIDENCE
6. The Applicant had full-time service in the Australian Army from 1 October 1941 to 26 April 1946. By dint of his service in the Darwin area, the whole of his service constitutes operational service. He gave oral evidence to the Tribunal, in confirmation of his statement at Exhibit A1, that he began smoking on 19 February 1942 when he experienced his first air raid in Darwin. He gave evidence that he smoked from that day, and continued to do so until being diagnosed with heart disease by Dr Russell in June 1999, when he was having breathing problems and angina; he could not recall whether Dr Russell had advised him to stop or not. His evidence was that on some 12 occasions, he attempted to “quit” but each break lasted only a short time. Initially, he indicated these breaks were “round about a week”, but in cross examination, he stated that he had stopped for a longer period when his first daughter was born in 1950.
7. The claim lodged by the Applicant on 5 April 2001 was accompanied by alcohol and smoking questionnaires. In respect of the latter (T14 p72), the Applicant had noted that he commenced smoking in February 1941 (which the Tribunal accepted as being 1942) at 5 – 10 cigarettes per day, that this increased to 35 per day in 1943, that he ceased in April 1997 due to heart problems, and that he had never stopped smoking permanently. In a further smoking questionnaire dated 16 August 2001 (T21 p 106), his record of change in terms of his daily usage varied somewhat from the above. He further indicated that he ceased smoking permanently in 1999, and that he had unsuccessfully sought to do so on several occasions over the years. When questioned as to the discrepancies in these two forms, the Applicant stated that he had been assisted in their compilation by the Vietnam Veterans’ Association, the representative of which entered his responses to the questions on the forms. He had not proof read them before signing as he assumed they would be correct.
8. In a statutory declaration at T22 p118, the Applicant stated that he commenced smoking in 1941 (now accepted as 1942), and continued to smoke until about 1998.
9. A number of documents before the Tribunal implied a different history to that given by the Applicant, they being:
· Report by a medical practitioner on Repatriation Commission Form K.E.2 (T4 p 27) dated 11 August 1955 in which it is noted “non smoker”
· Department of Repatriation and Compensation Medical History Sheet (T5 p28) dated 31 October 1975 which notes “Tobacco not for 25 yrs”
· DVA Case Sheet (T5 p31a) dated 27 May 1955 in which is entered “Tobacco” and what appears to be “NIL”
· DVA Medical History and Examination (T6 p33) dated 16 September 1980 which notes “Tobacco – Nil for 30 years – prior to this 10 cigs/day 10 yrs”
· In a Pension Medical Report (T6 p 35D) dated 6 January 1984, the entry under Tobacco states “Age started: 20. On service. During raid in Darwin – shaking – offered cigarette. Age stopped if applicable: Stopped at 30. Variations in consumption: Not heavy 10 – 15 /day. Factors influencing consumption: stopped due to price.”
10. In cross examination, the Applicant stated that he could not remember the details of these earlier examinations, other than that doctors asked questions and he gave truthful answers. His response in respect of each of the above documents was sequentially:
· He agreed he must have told the doctor he was a non-smoker, but that could have been in a period when he was trying to give up smoking.
· He agreed that the doctor would have recorded his responses, and stated “this is the only way I could account for it and like all smokers that try to knock off smoking, they deny that they are smoking even when they are sneaking one now and then”.
· Agreed that is what he must have told the doctor.
· Agreed that the doctor would have recorded what he said – but again, not the true situation. He considered his hearing to be poor, and hence he may not have understood the question. The Applicant also agreed with the Respondent that the thrust of the recorded response was consistent with earlier responses.
· Agreed that he started smoking at age 20, but had smoked consistently – with some short breaks – until about 1999. He also agreed that this response presented a lighter smoking habit (10 – 15 a day) than stated in more recent questionnaires (25 – 35 a day). He restated that in 1950, some 35 years prior to this medical examination, he had stopped for a short period when his daughter was born, and the examining medical officer may have misunderstood his responses. At that time he was undertaking a painting course, and money was short, hence the reference to price.
11. In evidence, the Applicant re-stated that he had never stopped smoking except for the short periods – “mostly round about a week … some might have been a little longer” - when he tried to give up the habit. He could not recall whether he smoked roll-your-own or tailor made cigarettes when he started. Throughout his life, he “mainly smoked roll-your-own” but prior to ceasing in 1999, it was “mostly tailor-made”. He could not recall what brand of tobacco or cigarettes he smoked, nor could he name any current market brands. He always bought his own tobacco or cigarettes. Occasionally, he smoked cigars and a pipe. He retired from the workforce in 1990. He stated that he had smoked at work, and due to his wife’s objections, outside the home. He visits a club (RSL) but rarely and smokes in those localities.
12. The Applicant first saw Dr Wong in 1989. He stated that he may have told Dr Wong at that time that he was not smoking, which would have referred to one of the periodic attempts to give up the habit. The clinical notes of Dr Wong (Exhibit R1) make no reference to smoking until a Health Summary at page 160. Whilst the relevant box under Family and Social History appears to have been marked to indicate that the Applicant was not a smoker, an additional word is indecipherable. Furthermore, the document is neither dated nor signed, and the Tribunal concurs with Counsel for the Applicant that the document provides no useful evidence.
13. The only reference to smoking made by Dr Russell (Exhibit R2) is in his letter of 24 October 2002 to the Respondent, in which he states “I initially saw the Applicant on the 8th June, 1999 at which time he had angina. He did not smoke at that time”. The Applicant was questioned in cross-examination as to whether he stopped smoking before or after he saw Dr Russell as follows:
“…….and you smoked more or less continuously since then (referring to the Darwin air raid) ? ---Yes
Until giving it up until after you saw Dr Russell? --- Dr Russell. Well, it was about the same time because I was having bother with breathing and that was why I went to the doctors about it. I had actually stopped prior to that, but the decision to keep off it was made after I had found out what was wrong.”
14. In re-examination, the Applicant stated that he was prescribed hearing aids in about 1990/91. Prior to that, his hearing was not bad except in noisy situations, although he was losing hearing in the upper range.
EVIDENCE OF WITNESSES
15. Mrs Lilian Johnston, wife of the Applicant, gave evidence in confirmation of a statutory declaration dated 18 August 2001 (T22 p108) that her husband had smoked cigarettes since before their marriage in 1947. She stated that in spite of brief periods – “probably of 3 or 4 weeks duration” - when he sought to break the habit, he continued to do so until late 1999. When she met him in 1945, he was smoking “quite a bit every day”, which could be described as “heavy”, but he smoked “not so much later”. She was a non-smoker and never bought his cigarettes. Nor did she know what brand of tobacco he smoked. In the early days, he had smoked openly in the home, but more recently had only smoked outside or elsewhere. She stated that the Applicant rolled-his-own, and occasionally smoked a pipe or cigar. She was unable to comment on medical records which referred to his smoking habit, as she was not present when he visited his doctor or undertook medical examinations. When he first saw Dr Russell, he was smoking “some of the time”. She was adamant that he had not stopped smoking permanently in 1950. She stated that he had never stopped smoking until recently, and that was because she was “whingeing (sic) at him”.
16. Mr John Carroll gave evidence by telephone. He met the Applicant in 1938 when they worked together at a tobacco works before enlisting. His war service was in the Air Force, and he saw the Applicant a couple of times when on leave. After the war, they renewed their acquaintance, and participated in various activities together. After marriage, they tended to meet every couple of months at their respective homes, at homes of friends and occasionally at clubs or hotels.
17. Mr Carroll is a non-smoker. From time to time, he would ask the Applicant when he intended to cease smoking, and it became a “bit of a joke”. He was aware that the Applicant stopped smoking in 1998. He could not recall the Applicant smoking a pipe. He had no idea as to whether he smoked roll-your-own or tailor made cigarettes. When asked by the Respondent to comment on evidence that The Applicant had permanently ceased smoking in about 1950, Mr Carroll said “I cannot recollect that…I don’t know…he might have given up”. Counsel for the Applicant sought to clarify the matter on the basis that the witness may not have understood the question being put to him, Mr Carroll responded by saying that he saw the Applicant smoke regularly. When put the question as to whether he saw him smoke in the 1960s, he said “I think that would be correct”. In response to a question by way of further clarification from the Tribunal, Mr Carroll said that the Applicant continued to smoke beyond 1950.
18. Mrs Beryl Fisher met the Applicant in about 1939, and he was not a smoker at that time. She did not see him during the war, but renewed acquaintance in 1946 at her wedding, when she observed he was a smoker. Thereafter, she saw him about monthly when hiking and at dances or other functions, and she continues to do so, and observed that he was smoking “every time I saw him”.. She understood from Mrs Johnston that the Applicant had periodically tried to give up smoking, but did not do so until 1998 when the family talked him into it. She herself is not a smoker, and had no idea what brand Mrs Johnston smoked. However, she was quite certain that he smoked tailor made cigarettes, as she had never seen him roll-his-own, a procedure she was familiar with as her son rolls his own. When asked by Counsel whether she had seen the Applicant smoke since 1950, she replied “I would think so”.. In response to a question from the Tribunal seeking to clarify the issue, she stated that to her knowledge, the Applicant did not stop smoking after 1950. She was less certain when it was put to her by the Respondent that the Applicant did not smoke after 1950, saying “Well, I can’t comment one way or the other because I’m not sure” and “Well, that’s news to me but I – I can’t be sure”.
19. Mr John Hawkins gave evidence by telephone. His association with the Applicant started in the late 1970s when their sons were playing football together. He described their relationship as “sociable good friends”. Until recently, he has been a smoker, having commenced in 1944 during his army service. He gave evidence that he was “pretty sure” that the Applicant was smoking when they first met. He could not remember the Applicant smoking roll-your-own cigarettes, and was sure he smoked tailor made, but he could not recall the brand. He could not say how much the Applicant smoked, but gave evidence that he had smoked until recent years. He recalled that the Applicant told him a couple of years ago that he had stopped smoking.
20. The final witness for the Applicant was Mr Garry Shannon. His evidence was that he married a neighbour of the Johnstons in 1963, and in turn became, a good friend. He initially saw the Applicant about weekly, and later “quite frequently”, depending on his army commitments. Most of his 21 years service was in Sydney, initially living in married quarters, then in his own home at Minto. He served 4 years unaccompanied in Queensland, and 2 years in New Guinea. He stated that to his knowledge, the Applicant smoked for the whole time he knew him until he stopped in 1997 on what he understood to be advice from his doctor because of a heart condition. He had no idea what brand, nor whether he smoked roll-your-own or tailor made. He had no knowledge as to any period when the Applicant might have sought to give up smoking.
APPLICANT’S SUBMISSIONS
21. Counsel for the Applicant opined that none of the six witnesses moved from the evidence that the Applicant had smoked until the late 1990s. Nor had it been challenged that the Applicant took up smoking during his army service in Darwin. The witnesses generally had knowledge of the Applicant over many years, their evidence was strong, and able to confirm that the smoking habit up to 1998/1999 was related to his war service.
RESPONDENT’S SUBMISSIONS
22. The Respondent conceded that the Applicant’s smoking habit commenced on operational service. The issue before the Tribunal was that of whether a reasonable hypothesis was raised to connect his Ischaemic Heart Disease with his operational service, the relevant Statement of Principles being No 38 of 1999.
23. The Respondent submitted that much of the evidence before the Tribunal contradicted the argument that the veteran had a consistent smoking history until the late 1990s. In respect of the various medical reports in the years 1955, 1975, 1980 and 1984 (as referred to in paragraph 9), the Respondent submitted that they had to be accepted as official documents that reflected the responses given by the Applicant to questions posed by the examining doctor, responses which the Applicant had variously agreed he must have given. The Respondent further submitted that those responses reflected a consistency in dates, in that they all indicated a date of cessation of smoking in about 1950, and the references in those documents to the amount smoked daily were reasonably consistent. The oral evidence by the Applicant that he did not understand the questions being put to him on those different occasions could not be accepted.
24. Contrary to the above documentation, more recent documentation presented a different picture. An earlier claim form lodged on 2 February 2000 (T8) referred to permanently ceasing smoking in 1998, but introduced the notion of stopping for short periods; folios 72 and 106, smoking questionnaires, were in the opinion of the Respondent, inconsistent with the earlier responses, and inconsistent with each other as regards the rate of smoking, and when smoking permanently ceased. The latter also introduced the 1950 stoppage, which the Respondent postulated reflected the Applicant becoming aware of the problem of contradictory documentation.
25. The Respondent submitted that it was inconceivable that a smoking habit had not been detected and recorded by Dr Wong and Dr Russell. The reference to chronic airways disease in Dr Wong’s clinical notes (folios 2 and 19) would surely have alerted the Doctor to comment on any smoking habit. Further, the evidence of Mrs Johnston was that she could smell his tobacco habit; that being the case, why not the doctors? The evidence given in various documentation and orally by the Applicant as to when he ceased smoking in the period 1997-99 was inconsistent both in dates, and in the trigger that led him to cease smoking.
26. The Respondent opined that it was impossible to reconcile the conflicting evidence. The Applicant now claimed a smoking habit of over 55 years, yet could not recall what brand of tobacco or cigarettes he smoked. Nor could his wife. Nor was he able to identify a brand on the market. It was consistent with a scenario where the Applicant had ceased smoking many years ago. The evidence of the witnesses was patchy, in that there was no agreement as to whether he had smoked roll-your-own or tailor made, or what brand. The knowledge of his habits and practice was at best, varied.
27. The Respondent raised the issue of a “second habit” commencing in 1984 or later, that is, after the last documented responses by the Applicant relating to the cessation of a smoking habit in about 1950, and that such an argument must be considered in the process of deciding whether the material raises a reasonable hypothesis. The Respondent submitted that in that context, all of the material must be considered.
APPLICANT’S RESPONSE
28. Counsel for the Applicant submitted that it was not the intention of the Applicant to argue “second habit”, and further submissions would be made only on the fundamental issue before the Tribunal. Counsel submitted that earlier evidence in writing must be considered in perspective. There had been no opportunity to cross-examine the authors of the documents. Transposition of comment and responses could not be discounted, nor misinterpretation of the response to questions given by the Applicant so many years ago.
29. Counsel further submitted that it would be unrealistic to expect the Applicant or witnesses, particularly over the lengthy period involved, to be able to recall detail, and the exact smoking habit of the Applicant. Counsel postulated that the Veterans’ Review Board “leapt to a conclusion without hearing the evidence” and the proper test, as agreed by the Respondent, is “that the Tribunal does have to consider the whole of the evidence and although the evidence may not all sit comfortably together, certainly the evidence that is heard today, the evidence that the respondent’s had the opportunity to cross examine on, that has not shifted under cross examination.”
30. Clause 5 of SOP No 38 of 99 sets out the factors in respect of Ischaemic Heart Disease, (e) and (f) being relevant to smoking, and Counsel submitted that the Applicant met at least one of the criteria, namely (f)(i) where smoking had not ceased prior to the clinical onset of Ischaemic Heart Disease, and probably (e)(iii) if it was determined that smoking had ceased prior to the clinical onset of Ischaemic Heart Disease. That would be the situation whether a daily consumption of 10 to 15 or 25 to 35 was accepted. As to the proposition put to the witnesses by the Respondent that the Applicant had ceased smoking in 1950, Counsel evidenced the surprise expressed by each witness when confronted with that proposition. Finally, Counsel submitted that due account must be taken of the age of the Applicant when looking at inconsistencies in his recollection of his smoking habit.
APPLICATION OF THE LAW
31. Sections 120 and 120A of the Veterans’ Entitlements Act 1986 (“VEA Act”) relate to the standard of proof and the reasonableness of hypothesis, stating:
"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.
Note: This subsection is affected by section 120A.
...
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(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.
Note: This subsection is affected by section 120B.
...
120A Reasonableness of hypothesis to be assessed 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 operational service rendered by a veteran;
...
(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(2) 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) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
32. The High Court considered the proper application of section 120 of the VEA Act in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 thus:
“The position may be summarised as follows:
1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent
with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.”
33. The Full Federal Court has held that, in operational service matters such as this, there are four steps to be considered in assessing whether an Applicant will succeed in a claim for a war-caused disability. The authority is RepatriationCommission v Deledio (1998) 83 FCR 82, the relevant steps being defined as:
“1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
Does the material before the Tribunal point to an hypothesis?
34 The hypothesis raised by the Applicant is that he commenced smoking during operational service in 1942, and with the exception of short breaks in which he ought to quit the habit, continued to smoke until diagnosed with Ischaemic Heart Disease, a condition which can be related to a smoking habit. The material before the Tribunal points to an hypothesis connecting his Ischaemic Heart Disease with war service and thus step 1 is satisfied.
Relevant Statement of Principles
35. Step 2 requires the Tribunal to determine whether there is in force a Statement of Principles (“SoP”) determined by the Repatriation Medical Authority (“RMA”) under section 196B(2) or (11) of the Act. The parties agreed that SoP No 38 of 1999 is relevant to this matter.
Is the hypothesis reasonable and consistent with the “template’ in the SoP?
36. Step 3 requires the Tribunal to form an opinion as to whether the hypothesis raised is a reasonable one. In this matter, the diagnosis of the condition of Ischaemic Heart Disease has been accepted. It is necessary for the Tribunal to consider whether the hypothesis is consistent with the “template” in the SoP, that is whether it contains one or more of the factors which have been determined by the RMA (SoP 38/99 clause 5) to be the minimum that must exist and be related to service.
37. Clause 5 of SoP 38/99 sets out the accepted causal links between operational service and Ischaemic Heart Disease, stating relevantly :
“5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting ischaemic heart
disease… with the circumstances of a person’s relevant service are:
…
(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 but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii)smoking at least 20 pack years of cigarettes or the
equivalent thereof, in other tobacco products, and the
clinical onset of ischaemic heart disease has occurred
within 20 years of cessation; or
(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; or
…”
38. Cigarettes per day or the equivalent thereof, in other tobacco products, is defined in SoP 38/99 as:
“either cigarettes, pipe tobacco or cigars, alone or in any
combination where one tailor made cigarette approximates one gram oftobacco; or one gram of cigar, pipe or other smoking tobacco by weight”
Pack years of cigarettes or the equivalent thereof, in other tobacco products, is defined as:
“a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes (being the ‘standard’ cigarette pack contents) per day for a period of one calendar year, or 7300 cigarettes. ……. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination”
39. The evidence given by the Applicant, and as supported by the witnesses, is that apart from short periods when he endeavoured to give up the habit, he continued to smoke at a rate variously given as between 10 to 15 cigarettes per day and 25 to 35 cigarettes per day until an Ischaemic Heart condition was diagnosed. Taken at face value, this meets the notion in factor 5(f)(i) of the SoP in respect of smoking the relevant quantities. Factor 5(f)(i) further requires that “smoking has not ceased prior to the clinical onset” and smoking must continue for “at least one year immediately before the clinical onset”, and the Tribunal must also form an opinion as to whether the material before it points to these components being met. To do so, requires the meaning of “clinical onset” to be determined.
41. There is no definition of “clinical onset” in SoP 38/99. In Robertson v Repatriation Commission (1998) 50 ALD 668 the Tribunal defined “clinical onset” as:
“…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enable a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…”
42. In Re Cornelius and Repatriation Commission [2001] AATA 890, which related to SoP No 71 of 1997 in respect of carpel tunnel syndrome, the Tribunal took evidence from Professor P Sambrook in which he assessed the date of clinical onset as 1993, when the Applicant in that matter had first mentioned a wrist problem to his general practitioner. In reaching that conclusion, he stated that “……moreover, taking the view that the clinical onset is the time when the symptoms become severe enough to warrant presentation to a doctor”. In a later report, Professor Sambrook stated “it is not possible to exclude beyond reasonable doubt that the symptoms of wrist fatigue and stiffness at the end of the day during his service period were not an early sign of carpel tunnel syndrome”, however the Tribunal preferred the less rigorous definition reached in Robertson (supra).
43. In allowing a subsequent appeal, Branson J in Repatriation Commission vCornelius [2002] FCA 750, while acknowledging the definition in Robertson (supra), made the observation that:
“There was no material before the Tribunal which suggested that any medical practitioner had in fact said that a feature or symptom reported by the respondent (Cornelius) within the specified time period (in the SoP) enabled him or her to say that the respondent had carpel tunnel syndrome…”
and again in his judgment:
“Without any such material it cannot be said that the respondent’s hypothesis fits the template to be found in clause 5(a) of the SoP.”
44. In the matter before this Tribunal, the material points to the Applicant’s hypothesis fitting the template in clause 5(f) of the SoP in that it is submitted that smoking had not ceased prior to the clinical onset of Ischaemic Heart Disease. Neither party argued the date of clinical onset, but the evidence before the Tribunal points to it occurring at the time of referral to Dr Russell. The hypothesis raised is consistent with the SoP.
45. That being the case, it is not necessary to establish whether the raised hypothesis is consistent with any other clause in the SoP. However, Counsel for the Applicant has submitted that in the alternative, that is, should the Tribunal reach a decision that smoking ceased prior to the clinical onset, an hypothesis is raised consistent with clause 5(e)(iii) of the SoP in respect of pack years consumed over time. Given the clinical onset has been accepted by the Tribunal as being about 1999, there is no material before the Tribunal that would support such an hypothesis. The evidence put to the Tribunal in respect of smoking ceasing prior to the clinical onset is that ascribed to the Applicant himself. As recorded in the various medical documents earlier referred to, they consistently portray a cessation of smoking in about 1950, almost 50 years before the clinical onset of Ischaemic Heart Disease. There is no relevant material before the Tribunal that would enable a reasonable hypothesis to be raised.
Consideration under s 120(1) whether satisfied beyond reasonable doubt that the incapacity is not war-caused
46. The evidence in the section 37 documents from 1955 to 1984 is consistent in indicating that the Applicant ceased smoking about 1950. Referral on each occasion to the interval since the Applicant last smoked consistently related back to about 1950. The Applicant conceded that he must have provided the relevant information to the examining medical officer, but indicated variously that he may not have understood the question, or the medical officer may have misunderstood his response.
47. There is no medical evidence before the Tribunal to suggest that the Applicant has been a smoker since 1950. He became a patient of Dr Wong in 1989, and there is no indication of any smoking habit – other than in the Health Summary referred to in paragraph 12, which the Tribunal feels obliged to put to one side in the absence of a date and signature and the inability to properly interpret the entry – in the course of periodic attendances during the ensuing 10 years. Indeed, even when a condition of airways disease is noted in 1990, there is no comment on smoking. Dr Russell first saw the Applicant in June 1999, and noted that “he did not smoke at the time”, the meaning of which might have become clearer had Dr Russell been called to give evidence.
48. In terms of an expressed habit from 1942 until 1999, some 57 years, the Tribunal finds it most extraordinary that a smoker with such a habit is unable to recall what brand of tobacco he smoked, nor what brands are currently on the market. The Tribunal also notes the differing consumption rates given by the Applicant in more questionnaires associated with his disability claim, ranging from 10 – 15 per day to 25 – 35 per day.
49. The evidence to the contrary, that is, in support of the contention by the Applicant that he did not cease smoking until 1999, came from the oral evidence of the Applicant himself and the 5 witnesses who prepared affidavits and gave oral evidence. The Applicant gave evidence that he never stopped smoking except for occasional short periods, about 12 in all, when he sought to give up the habit. His responses to the questions as to why he had given a consistent presentation as a non-smoker from 1955 to 1984 were, at best, lacking in reasonable explanation. Mention has already been made of his inability to recall the brand of tobacco smoked, but it might be argued that if part of his evidence was fabricated, one might assume that he would have taken steps to identify a “suitable brand”. He was unable to accurately recall when he ceased smoking, and whether it was before or after his heart disease became evident. However, with the exception of some detail, his oral evidence was generally consistent.
50. The witnesses had variously known the Applicant since about 1939 (Mr Carroll and Mrs Fisher), 1946 (Mrs Johnston), 1963 (Mr Shannon) and 1970 (Mr Hawkins). With the exception of Mr Hawkins, they were non-smokers. None of the witnesses could recall what brand of cigarette was smoked by the Applicant; contrary to the Applicant’s claim that he smoked mainly roll-your-own, Mr Hawkins was sure he smoked tailor made cigarettes, and Mrs Fisher was quite certain that he smoked tailor made, stating “I don’t think I have ever seen him roll his own. I know because my son roll his own…”.
51. The scenario posed to Mr Carroll and Mrs Fisher by the Respondent that the Applicant had ceased smoking in 1950 was met with uncertainty. The former said “I cannot recollect that…I don’t know…I think that would be correct”. Mrs Fisher said “I would think so” when asked had she seen the Applicant smoke since 1950. As earlier noted, the Tribunal interjected to ensure that the witnesses understood what they were being asked; in the event, both witnesses confirmed that the Applicant had smoked after 1950.
52. Section 120(1) of the Act requires that the Tribunal determine that the disease was a war-caused disease “unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination”.. As the High Court noted in Byrnes (supra), the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact, which is inconsistent with the hypothesis, is proved beyond reasonable doubt.
53. The facts in this matter must relate to the submission that the Applicant commenced smoking in a period of operational service, and continued to do so until the clinical onset of Ischaemic Heart Disease. The former is conceded by the Respondent, and the approximate date of clinical onset has been determined by the Tribunal, drawing on Robertson (supra). It remains to be determined whether the claim that the Applicant smoked until the clinical onset has been disproved beyond reasonable doubt. The Tribunal has reservations relating to the consistent statements over a number of years by the Applicant that he had ceased smoking in 1950, and there were unexpected lapses in knowledge and memory that might be expected of a regular smoker. The Tribunal has considered whether the provisions of section 119 of the VEA Act, in respect of not being bound by technicalities, and the flexibility provided therein, have relevance to this matter. The relevance of section 119 to deficiencies in evidence has been addressed in Repatriation Commission v Bey (1997) 79 FCR 364 and Mason vRepatriation Commission [2000] FCA 1409, the decisions clearly reflecting that deficiencies cannot be remedied by resort to section 119. In this matter, this issue is not one of deficiency in evidence, but the abundance of contradictory evidence, albeit that the provisions of subsection 119(h)(i) in respect of making due provision for the passage of time, might be relevant.
54. Whilst the documentary evidence before the Tribunal by way of comments in relation to smoking on various medical reports are consistent over a long period, the oral evidence of the Applicant, and the evidence given by five witnesses, taking into account the inconsistencies hitherto referred to, and the time span over which the smoking habit is considered, cannot be disproved beyond reasonable doubt, and hence the claim for Ischaemic Heart Disease as a war-caused disability must succeed.
55. The decision under review is therefore set aside, and in substitution, the Tribunal determines that the condition of Ischaemic Heart Disease is war-caused with effect from 5 January 2001, and the matter is remitted to the Respondent to assess the rate of pension payable to the Applicant.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton, AO, Member.
Signed: (Sgd) Kwai-Ling Wong .......................................................................................
AssociateDate of Hearing 2 May 2003
Date of Decision 26 June 2003Counsel for the Applicant Mr N. Dawson
Advocate for the Respondent Mr J. Marsh
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