June Nobes and Repatriation Commission
[2014] AATA 742
•14 October 2014
[2014] AATA 742
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5241
Re
June Nobes
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 14 October 2014 Place Sydney The decision of the Veterans Review Board made on 19 August 2013 is affirmed.
....................[SGD]....................................................
Senior Member A K Britton
CATCHWORDS
VETERANS’ AFFAIRS — Widows’ pension — Emphysema and ischaemic heart disease — Whether disease was war-caused — Whether disease was defence-caused — Whether there is material that points to a hypothesis — Beneficial legislation — Decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) – ss 13; 70(1); 70(5); 120(4); 120(6); 120A; 120B(3); 196B(14)
CASES
Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82Repatriation Commission v Knight [2012] FCAFC 83; (2012) 202 FCR 451
SECONDARY MATERIALS
Statement of Principles concerning Chronic Bronchitis and Emphysema Instrument No 31 of 2004
Statement of Principles concerning Ischaemic Heart Disease 2004 Instrument No 89 of 2007
Statement of Principles concerning Ischaemic Heart Disease Instrument No 90 of 2007 Statement of Principles concerning Chronic Bronchitis and Emphysema Instrument No 31 of 2014
The Macquarie Dictionary Sixth Edition (October 2013)Oxford English Dictionary Online ( FOR DECISION
Senior Member A K Britton
14 October 2014
Mr Barry Nobes served in the Royal Australian Navy between 1966 and 1989. His widow, Mrs June Nobes, seeks review of a decision made by the Repatriation Commission and affirmed by the Veterans’ Review Board to refuse her claim for a pension under the Veterans’ Entitlement Act 1986 (Cth) (the Act).
It is agreed that the causes of Mr Nobes’s death include emphysema and ischaemic heart disease. Mrs Nobes’s entitlement to a pension under the Act turns on whether her late husband’s emphysema and ischaemic heart disease were “war-caused” and/or “defence-caused”. To answer that question I must decide whether:
·The available material points to Mr Nobes’s “smoking factor” being “related to” his 17 days of operational service (4 October 1971 to 14 October 1971 and 6 December 1971 to 11 December 1971)
·On the balance of probabilities, Mr Nobes inhaled smoke from the combustion of fossil fuels for a total of at least 5000 hours before the clinical onset of emphysema.
Was Mr Nobes’s ischaemic heart disease and / or emphysema war-caused?
Statutory framework
Where the death of a veteran is “war-caused”, the Commonwealth will be liable to pay a pension by way of compensation to the dependants of the veteran (s 13 of the Act).
Whether Mr Nobes’ death was “war-caused” must be assessed by applying the standard of proof set out in s 120 as affected by 120A of the Act. Section 120 provides:
(1)Where a claim under Part II for a pension in respect of the ... death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that ... the death of the veteran was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3)In applying subsection (1) or (2) 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:
...
(c)that the death was war-caused ...
Note: This subsection is affected by section 120A.
Headed “Reasonableness of hypothesis to be assessed by reference to Statement of Principles”, s 120A states:
(3)For the purposes of subsection 120(3), a hypothesis connecting … 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
...
that upholds the hypothesis.
In applying those provisions, I must apply the four-step approach set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 98, usefully summarised by Lindren J in Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 (at [5]):
Does all the material before the Tribunal point to a hypothesis of war causation (the hypothesis raised)? If not, the application must fail.
If it does, what was the relevant SoP [Statement of Principles] in force?
Is the hypothesis raised consistent with the “template” found in the SoP, that is to say, contain the minimum factors which, according to the SoP, must exist and be related to the person’s service? If the hypothesis raised does not contain those minimum factors, it does not fit within the template and is deemed not to be “reasonable”, and the claim will fail. If it does, the hypothesis raised cannot be said to be contrary to proved or known scientific facts or otherwise fanciful.
Is the Tribunal satisfied beyond reasonable doubt that the hypothesis raised is not established? If it is not so satisfied, the claim must succeed, whereas if it is so satisfied, the claim must fail. It is only at this fourth stage that the Tribunal is required to find facts from the material before it.
Neither party bears an evidentiary onus (s 120(6)).
Statement of principles
The Repatriation Medical Authority has determined Statements of Principles (SoPs) for both claimed conditions. Mrs Nobes relies on Instrument No 31 of 2004, the SoP concerning Chronic Bronchitis and Emphysema (the Emphysema SoP) and Instrument No 89 of 2007, the SoP concerning Ischaemic Heart Disease (the IHD SoP).
At least one of the factors listed in clause (5) of the Emphysema SoP must exist before it can be said that a reasonable hypothesis has been raised connecting Mr Nobes’s death from ischaemic heart with Mr Nobes’s operational service. Mrs Nobes relies on factor 5(a):
smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema.
Similarly at least one of the factors listed in clause (6) of the IHD SoP must exist before it can be said that a reasonable hypothesis has been raised connecting Mr Nobes’s death from ischaemic heart disease with the circumstances of his operational service. Mrs Nobes relies on factor 6(g)(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 smoking cessation
Both SoPs define “pack years of cigarettes …” to mean:
"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 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination.
For convenience I will refer to both factor 5(a) of the Emphysema SoP and factor 6(g)(ii) of the IHD SoP, collectively as “the smoking factor”.
In addition to the material that points to the relevant factor there must be material that the claimed factor is “related to” Mr Nobes’s operational service. The phrase “related to” is defined by s 196B(14) of the Act to include:
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(a)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(g)in the case of a factor causing, or contributing to, the death of a person — it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service.
Does the material point to reasonable hypothesis?
In Repatriation Commission v Knight [2012] FCAFC 83; (2012) 202 FCR 451, the Full Court explained (at [8]), that two discrete issues must be considered when considering if the material points to a reasonable hypothesis, namely:
whether the material before the Tribunal points to the factor(s) relied upon; and
whether the material also points to that factor being related to the veteran’s service (s 196B(14)).
This assessment does not involve fact finding but an examination of the available material “to see if … [the advanced] hypothesis might reasonably be drawn from [that material]” (Knight at [5]).
Mrs Nobes advances the following hypothesis:
(a)Mr Nobes’s period at sea on the HMAS SWAN, which included two periods of operational service, was stressful and demanding
(b)That stressful experience made a material contribution to him changing from being an occasional to a heavy smoker (at least 20 cigarettes per day)
(c)Mr Nobes continued to smoke at those levels for 30 years or so after his return on the HMAS SWAN
(d)Mr Nobes smoked at least 20 cigarettes per day for at least 20 years before the clinical onset of ischaemic heart disease in 2009
(e)The circumstances of Mr Nobes’s operational service made a material contribution to his sustained increased in smoking.
Background to the smoking factor
Mr Nobes joined the Royal Navy in 1951. In 1966 he was recruited by the Royal Australian Navy (RAN), apparently because of his significant experience in submarine command. His first posting with the RAN was to oversee the building of, and on completion to sail to Australia, the Oberon class submarine, HMAS OVENS. He arrived in Australia in October 1969. He was joined by his wife and children.
Mr Nobes continued to command HMAS OVENS until appointed chief executive officer or second-in-command of the HMAS SWAN, in March 1971. During that appointment, Mr Nobes served under Commander Ian James. Mr Nobes returned to Australia in April 1972. During the period Mr Nobes was at sea (16 October 1971 to 25 April 1972), the HMAS SWAN was deployed on two occasions to escort the HMAS SYDNEY to Vung Tau harbour, Vietnam. The 17 days spent travelling to and from, and being anchored at, Vung Tau, constitutes “operational service” in respect of Mr Nobes (4 October 1971 to 14 October 1971 and 6 December 1971 to 11 December 1971).
Mr Nobes started smoking during his period of service with the Royal Navy.
The available material contains a number of conflicting accounts about Mr Nobes’s smoking history. In deciding whether the material “points to” the smoking factor being related to Mr Nobes’s operational service I have had regard to all of the available material but for current purposes refer only to that material favourable to the hypothesis advanced by Mrs Nobes.
Mrs Nobes testified that up until the time her husband joined the HMAS SWAN, he was an occasional smoker. As she recalled, during the period he served in the Royal Navy her husband frequently gave away his issue of 300 cigarettes per month. She testified that:
·the amount her husband smoked remained largely unchanged up until his posting on the HMAS SWAN
·on his return to Australia in April 1972, her husband smoked significantly more than he had before he left; he “seemed to be smoking all the time”
·he continued to smoke heavily until his 50th birthday in 1985.
According to Mrs Nobes, her husband had been apprehensive about his tour of duty in the HMAS SWAN knowing that he would be leaving her to care for their three young children without any support (the Nobes’s extended family resided in the UK). She stated that she learnt from corresponding with her husband while he was at sea and from conversations on his return, that he found his period on the HMAS SWAN to be demanding and stressful. According to Mrs Nobes, her husband found Commander James to be an exceedingly difficult man who, on occasion, was very spiteful and treated him badly in front of the crew.
Shortly before her husband’s return to Australia in April 1972, the chaplain attached to the HMAS SWAN contacted Mrs Nobes. She recalls the chaplain telling her that her husband had a very difficult time serving under Commander James and that he was concerned for her husband’s welfare.
Captain Rothwell, an expert in Australian naval history, prepared a report for these proceedings and gave oral evidence. He explained that while at sea, the ship’s commander and chief executive officer were required to be in frequent and regular contact and were effectively “joined at the hip”. Given the closeness of that working relationship, in Captain Rothwell’s opinion a second-in-command who had the misfortune to work under a difficult commander, would undoubtedly have found the experience extremely difficult.
In preparing his report Captain Rothwell interviewed a number of officers who had served with Mr Nobes on the HMAS SWAN. They confirmed Mrs Nobes’s account that Commander James was a difficult man to serve. One recounted observing on more than one occasion, Commander James poking Mr Nobes in the chest in view of the crew.
Captain Rothwell knew Mr Nobes during the period he served in the RAN and described him as a gentleman. In his opinion, Mr Nobes would have found the treatment he was subjected to by Commander James, deeply distressing and demeaning. Referring to the “poking incident”, Captain Rothwell asserted that even in the early 1970s, it was considered unacceptable for a Commander to touch any member of the crew in an aggressive manner.
Captain Rothwell explained that the role of a chief executive officer was extremely taxing and stressful. He stated, based on his own experience and observations of others, that naval officers tended to smoke more heavily while holding positions of command. In his opinion this was attributable to the responsibilities and pressures of the position.
According to Captain Rothwell, naval records describe the HMAS SWAN’s deployments to Vietnam in November and December 1971 as “uneventful”. He stated that nonetheless the threat of enemy attack was ever present and being anchored at Vung Tau harbour would have been a very “tense time” for all members of the crew. He pointed out that as second-in-command responsibility for Operation Awkward — patrolling for enemy activity while the ship was anchored — probably fell to Mr Nobes. In Captain Rothwell’s opinion, overseeing that operation would have been demanding.
Does the material point to the smoking factor being related to Mr Nobes’s operational service?
As pointed out by Counsel for Mrs Nobes, Mr Saunders, there is material that points to:
·MrNobes leaving Australia on the SWAN as an occasional smoker and returning a heavy smoker, a habit which persisted for over 20years
·MrNobes having a difficult and stressful time while at sea
·there being a correlation between an increase in the consumption of tobacco by naval officers and periods of stress
·MrNobes’s period of operational service being a period of heightened stress
There is no issue that there is material that points to the elements of the smoking factor being satisfied. The issue in dispute is whether there is material that also points to Mr Nobes’s sustained increase in tobacco consumption arising out of, or being attributable to, or being contributed to in a material degree by, Mr Nobes’s operational service, or would not have occurred, but for that service.
While there is no requirement that the “raised facts” or material be proven, nonetheless there must be some material that points to the smoking factor being “related to” Mr Nobes’s operational service. Absent from the available material is any indication of at what point at which during his time at sea in the HMAS SWAN, Mr Nobes increased his level of tobacco consumption and/or developed a heavy smoking habit. On the available material it is possible that one or both occurred prior to, during or after his tour of duty. Absent some material about when that increase commenced and/or Mr Nobes developed a heavy smoking habit, in my opinion the asserted relationship between service and the smoking factor is merely “left open” and is not raised by the material (East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 at 519).
Conclusion
The available material does not point to the hypothesis advanced by Mrs Nobes. It follows that neither Mr Nobes’s emphysema, nor his ischaemic heart disease, were “war-caused”.
Was Mr Nobes’s ischaemic heart disease and/or emphysema defence-caused?
Mrs Nobes contends that her husband’s ischaemic heart disease and emphysema were also defence-caused. Mr Nobes’s period of eligible defence service commenced on 7 December 1972 and ended on 6 March 1989.
Statutory framework
Section 70(1) of the Act provides that where the death of a member of the Forces was defence-caused, the Commonwealth is liable to pay a pension by way of compensation to their dependents. Section 70(5) of the Act provides that the death of a member of the Forces is taken to be defence-caused if:
(a)the … arose out of, or was attributable to, any defence service, … of the member;
…
(d)the injury or disease from which the member died …
(iii) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(iv) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or …
Section 120(4) requires the Tribunal to decide matters “to its reasonable satisfaction”. Section 120B(3) states:
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that … 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
…
that upholds the contention that the … death of the person is, on the balance of probabilities, connected with that service.
Statement of principles
The Repatriation Medical Authority has determined Statements of Principles (SoPs) for both claimed conditions: Instrument No 90 of 2007, the SoP concerning Ischaemic Heart Disease and Instrument No 31 of 2014, the SoP concerning Chronic Bronchitis and Emphysema. Mrs Nobes relies on the following factors:
Factor 6(h)(ii) of SoP No 90 of 2007:
(h)where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
…
(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
She also relies on factors 5(a) and (d) of SoP No 31 of 2004:
(a)smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;
…
(d)inhaling smoke from the combustion of biomass or fossil fuels whilst in an enclosed space, for a total of at least 5000 hours
before the clinical onset of chronic bronchitis and/or emphysema;
SoP No 31 of 2014 defines “an enclosed space” to mean a substantially enclosed area, for example, the interior of a building, ship or aircraft, a covered workshop or factory.
Was Mr Nobes’s smoking habit “related to” service?
There is no argument that Mr Nobes satisfies the requirements of factor 6(h)(ii) of SoP No 90 of 2007 and factor 5(a) of SoP No 31 of 2014, in relation to the amount and duration of tobacco consumption. The issue is whether on the balance of probabilities either factor is “related to” Mr Nobes’s defence service (December 1972 to March 1989).
The available material includes a number of conflicting accounts about Mr Nobes’s smoking history, which include:
(a)The smoking questionnaire completed by Mr Nobes in 2010, in which he claimed that he had a “fairly constant habit”: 20 cigarettes per day between 1954 and 1967, increasing to 30 per day between 1967 and 1983.
(b)The smoking questionnaire completed by Mr Nobes two years later in which he stated that in the 2010 questionnaire he had mistakenly overstated the amount he smoked between 1954 and 1967 and, during that period he probably only smoked 10 cigarettes per day.
(c)Mrs Nobes’s oral evidence that prior to leaving Australia on the HMAS SWAN her husband was an occasional smoker but on return a heavy smoker.
Whichever account is accepted, Mr Nobes had an entrenched heavy smoking habit, prior to the commencement of his defence service in November 1972. The evidence does not support a finding that Mr Nobes’s defence service made a material contribution to his increased smoking levels. Nor could it be said that that increase or habit arose out of, or would not have occurred but for, that service. I am not satisfied on the balance of probabilities that the smoking factor was related to Mr Nobes’s defence service.
Did Mr Nobes inhale smoke from the combustion of fossil fuels for a total of at least 5000 hours?
It is argued for Mrs Nobes that the evidence supports a finding that the requirements of factor 5(d) of SoP No 31 of 2014 are satisfied, that is, while serving as a submariner Mr Nobes inhaled smoke from the combustion of fossil fuels (diesel oil) for at least 5000 hours. She contends that this continued during his three year posting at HMAS PLATYPUS and therefore the factor was “related to” Mr Nobes’s defence service.
There is no argument that air quality on the Oberon class submarines was extremely poor. Captain Rothwell referred in his report to the “permeating smell of diesel oil in everything”. He cited a study which found that that “chronic exposure to diesel vapour was a feature of the Oberon class submarine” (Centre for Military Veterans’ Health, Oberon Class Submarine Occupational Hygiene Project, February 2006). In Captain Rothwell’s opinion it was possible that on those occasions Mr Nobes visited the engine room he might have been exposed to smoke haze emanating from burnt diesel oil and diesel fumes. Mrs Nobes testified that her husband’s uniforms reeked of diesel.
There is no dispute that as a submariner Mr Nobes inhaled diesel vapour over an extended period. While some evidence that he might have inhaled diesel smoke and fumes during visits to the engine room, it is not contended that on that basis he would satisfy the 5000 hours requirement contained in factor 5(d) of SoP No 31 of 2014. The issue between the parties is whether, as Mrs Nobes contends, in the context of factor 5(d) of SoP No 31 of 2014, the word “smoke”, should be interpreted to mean “vapour” and/or “fumes”.
The word smoke is not defined by SoP No 31 of 2014. There is nothing to indicate from either the word itself or its context that any technical or special meaning is indicated and therefore it must be given its ordinary meaning (see French J in Woodside Energy Ltd v Federal Commissioner of Taxation (No 2) [2007] FCA 1961 (at 261)). To ascertain that meaning, as a starting point it is necessary to consult dictionary definitions. Two will suffice: the Macquarie Dictionary and the Oxford English Dictionary Online (>
The Macquarie Dictionary Sixth Edition (October 2013) defines “smoke” to mean:
(1)the visible exhalation given off by a burning or smouldering substance, especially the grey, brown, or blackish mixture of gases and suspended carbon particles resulting from the combustion of wood, peat, coal, or other organic matter.
(2)something resembling this, as vapour or mist, flying particles, etc.
…
The Oxford English Dictionary Online defines “smoke” to mean:
The visible volatile product given off by burning or smouldering substances.
The Macquarie Dictionary defines “fumes” to mean:
any smoke-like or vaporous exhalation from matter or substances.
and “vapour” to mean:
(1)a visible exhalation, as fog, mist, condensed steam, smoke, etc.
(2)a substance in the gaseous state (sometimes restricted to substances in the gaseous state when below their critical points); a gas.
The Oxford English Dictionary Online defines “fumes” to mean:
The volatile matter produced by and usually accompanying combustion; smoke
and “vapour” to mean:
Matter in the form of a steamy or imperceptible exhalation; esp.
These dictionary definitions indicate the words “smoke”, “vapour” and “fumes” while related, are not interchangeable. Smoke and vapour are visible, fumes are not. While visible, vapour unlike smoke, does not carry suspended particles. Both smoke and fumes are terms for particles dispersed in a gas medium — the difference is in how the particles have come to be dispersed in the gas (smoke by combustion i.e. burning diesel, and fumes by condensation i.e. vapour under pressure). Vapour, however, describes a particular category of gas.
I agree with the submission made by Mr Saunders that, given their beneficial character, the Act and the Statement of Principles should be generously construed. I cannot agree however with the proposition that in the context of SoP No 31 of 2014 there is any ambiguity about the meaning of the word “smoke” or, that it can be interpreted to mean “fumes”, “vapour”, or both.
I am not satisfied on the balance of probabilities that Mr Nobes inhaled smoke from the combustion of fossil fuels for a total of at least 5000 hours. The requirements of factor 5(d) of SoP No 31 of 2014 are therefore not met.
Summary
The requirements of factor 5(d) of SoP No 90 of 2007 are not met. Nor are the posited smoking factors in SoP No 90 of 2007 and SoP No 31 of 2014 “related to” Mr Nobes’s defence service. Therefore, Mr Nobes’s death from emphysema and ischaemic heart disease was not defence-caused.
Conclusion
I have considerable sympathy for Mrs Nobes’s position. Her husband had a long and distinguished career as a naval officer both in Australia and the UK. Only part of that service is relevant to determining whether she is entitled to a pension under the Act, namely the period of operational service and the period of defence service from 7 December 1972. A different result may have been reached had the entirety of Mr Nobes’s naval service been able to be taken into account. I am not permitted to do so by the Act. It follows I have no option but to affirm the decision under review.
I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton .................[SGD].......................................................
Associate
Dated 14 October 2014
Date(s) of hearing 10 September 2014 Date final submissions received 18 September 2014 Counsel for the Applicant Timothy Saunders Solicitors for the Applicant Kemp & Co. Lawyers Respondent In person
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