Kruger and Repatriation Commission - [2000] AATA 641

DECISION AND REASONS FOR DECISION [2000] AATA 641

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/245

VETERANS' APPEALS DIVISION          )
           Re      BERYL KRUGER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

Date2 August 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS MBE
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements - widow pension – whether veteran's death war-caused – smoking history – reasonable satisfaction test – reasonable and definite inferences considered – lack of definite evidence supporting inferences raised
Veterans' Entitlements Act 1986 s.120
Statement of Principles No. 68 of 1997
Statement of Principles No. 10 of 1998
Luxton v Vines (1952) 85 CLR 352
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Tuite (1993) 29 ALD 609
Re Charlton and Repatriation Commission (AAT 10642, 28 December 1995)
Repatriation Commission v Edwards (Unreported Federal Court, G250/93, 3 September 1993)

REASONS FOR DECISION

2 August 2000 Senior Member J.A. Kiosoglous MBE Ms U. Dahl (Member)

This is an application by Mrs Beryl Kruger (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 28 January 1999 (T2) which affirmed a decision of a delegate of the respondent dated 20 February 1998 (T7) which determined that the death of Mr Ross William Kruger (the veteran) was not war-caused.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T22), together with seven exhibits, six lodged by the applicant (Exhibits A1-A6) and one lodged by the respondent (Exhibit R1). In addition, the Tribunal heard evidence from the applicant, who also called Mrs R. Threfall and Mr J. Mullens. The respondent called as a witness Dr M. Guerin, former Departmental Medical Officer. The applicant was represented by Ms E. Reed, of counsel, and the respondent was represented by Mr G. Doube, departmental advocate.
The issue before the Tribunal is whether or not the veteran's smoking history is related to his war service.
history of the application
The veteran served in the Militia of the Australian Army from 19 March 1941 to 16 June 1941 and from 28 July 1941 to 28 February 1946 in the AIF, constituting eligible, but not operational, war service. The veteran died on 17 August 1987 from carcinomatosis and cancer of the stomach.
The respondent rejected the applicant's claim on 20 February 1998 (T7) on the basis that the veteran's death was not service related. This decision was affirmed by the VRB upon review dated 28 January 1999 (T2).
The relevant Statement of Principles (SoP) is No. 68 of 1997 as amended by No. 10 of 1998 concerning malignant neoplasm of the stomach. Clause 5(a) of the SoP was not in dispute, leaving the question before the Tribunal as to whether clause 4 is satisfied. Clause 4 of the SoP requires that one of the factors in clause 5 be related to the veteran's war service. The standard of proof is that in sub-section 120(4) of the Veterans' Entitlements Act 1986, namely, that the Tribunal must be reasonably satisfied (ie on the balance of probabilities) that the veteran's smoking history of at least 20 pack years prior to the clinical onset of malignant neoplasm of the stomach is related to his war service.
applicant's evidence
The applicant told the Tribunal that she grew up at Mypolonga, in the same community as the veteran, who was some six years and ten months older than her. She stated that she does not know if the veteran smoked prior to his service as she was only 15 years old at the time he left for the war, and she took no notice of whether he smoked or not, as she would only see him at weekends. She considered however, that there were not many cigarettes around in those days for young people, and that the young lads did not have the money to buy cigarettes prior to service. She agreed that she does not know when or where the veteran commenced smoking, but that she knew that he smoked when he came home on leave breaks.
She could recall that the veteran smoked during his Army leave breaks and smoked a lot of cigarettes upon his return from the Army. She stated that it was hard to adjust to that type of lifestyle, and that the veteran would smoke a packet of 20 cigarettes per day.
She stated that she married the veteran in June 1946 whereupon they lived with her parents, and later on their own farm, which constituted land obtained with assistance from both his and her parents. She told the Tribunal that she would order three packets of Ready Rubb tobacco per week, and that there were approximately sixty cigarettes to be made from each packet. She further stated that the veteran would occasionally have tailor made cigarettes on weekends. She maintained this same order for many years, until they eventually moved to Murray Bridge.
On the basis of what the veteran told her over the years, she considered that he was stressed by going away to war, leaving home and further because he had to drive in very rough conditions, transporting goods through the Northern Territory and Queensland.
She stated that following the 1956 flood, they had to return to her parent's farm for 12 months whilst their farm recovered, and that the veteran increased his smoking as a result of stress due to the flood.
She told the Tribunal that the veteran never reduced his smoking intake and that he would have underestimated his smoking to doctors, because he hated being criticised for his smoking habit. She stated that in this regard, he would clean his fingers before visiting doctors to try to remove the nicotine stains, did not like being called "tobacco mouth", and that doctors used to "howl him down" about his smoking.
mrs r. threfall
Mrs R. Threfall, elder sister of the applicant, told the Tribunal that she knew the veteran as they went to the same school, and she would see him at social and sporting functions (the veteran is three years her senior). She could not recall ever seeing the veteran smoking at such occasions or at any other time prior to his service. However, she agreed that after they left school, she would only see the veteran at social events.
She stated that none of the boys smoked during their school years, and that it was not thought about. She also told the Tribunal that their fathers had all returned from the trenches of World War I smoking, and so were anti their children smoking. She did not consider that the veteran would have had occasion to earn enough money to smoke prior to his service.
She could not say what the veteran's level of smoking was upon discharge, as she was still in the service herself until later in 1946. She stated that she was a nurse and served in that capacity.
mr j. mullins
Mr J. Mullins served with the veteran in the Army. He recalled first meeting the veteran during training at Wayville and then at Puckapunyal, at which point they were sharing a tent. He stated that he did not remember the veteran smoking during that time, but said that he could have been.
He stated that the veteran smoked heavily from the time they began driving trucks from Alice Springs, and that the veterans' smoking increased during the period he knew the veteran.
dr m. guerin
Dr M. Guerin is a former departmental Medical Officer who examined the veteran in May 1984 (T13). He stated that, in his experience, veterans were proud of their addictions, and that he has no reason to doubt that the smoking history obtained from the veteran "wouldn't have smoked more than 2 a day until I started a dairy after I got discharged" (T13/51) was accurate, and that two per day was a reference to cigarettes not packets. He told the Tribunal that had he been told a different history he would have written it down, as it was his role to simply examine patients and record findings, not to counsel patients. He stated that it was a common inconsistency to find that veterans were actually smokers on enlistment, or were influenced to smoke by their service.
applicant's submissions
Ms Reed submitted, on behalf of the applicant, that it was open to the Tribunal, in the absence of definite facts, to draw a reasonable and definite inference that the veteran either did not smoke or only smoked a couple of cigarettes per day prior to enlistment, and began smoking heavily during his service as a result of peer pressure, stress and camp life.
She submitted that the evidence of Mrs Threfall supported such a contention in the pre-war years, and that Mr Mullins attested to the difficult conditions under which service was performed. She further submitted that Dr Guerin's record of smoking history was unreliable given the veteran's history with doctors and that all independent direct evidence supported the contention that the veteran emerged from the war a heavy smoker.
respondent's submissions
Mr Doube submitted, on behalf of the respondent, that the applicant has provided conflicting evidence as to the veteran's smoking, noting the comments in an earlier statement and claim form (T5/31 and T5/34 respectively) and was either confused or concocting a story for the purposes of the claim. He submitted that she does not know when or where he commenced smoking, or if he was a smoker upon enlistment. There is also a conflict as to date of onset or aggravation of his smoking, in that she agreed that he became a heavier smoker in the years subsequent to the war as a result of the pressures of establishing a farm and the flood.
He submitted that Mr Mullins only gave useful evidence from the time he was with the veteran in Alice Springs and not in regard to the earlier wartime. He further submitted that Mrs Threfall was unable to give evidence relating to the period prior to her discharge late in 1946, and only had vague recollections of the time prior to service.
discussion and findings
The Tribunal has only briefly set out the evidence and submissions before it, but takes all such evidence and submissions into account in reaching its decision. It will refer to the numerous authorities relied upon by the parties as appropriate.
This is clearly a case where inferences will necessarily be relied upon, as there is an absence of hard factual data upon which to base a decision. The Tribunal recognises the extreme difficulty in cases such as this, where one is expecting recall of events some 60 to 70 years ago.
Ms Reed provided comprehensive and salient submissions particularly on the issue of inferences, noting the High Court's guidance on the issue in Luxton v Vines (1952) 85 CLR 352 wherein the majority stated (inter alia) at page 358:
"…
… In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (2). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn (3).
…"
Within the context of claims relating smoking to various conditions, the Tribunal was referred to the High Court decision in Repatriation Commission v Law (1981) 147 CLR 635, and whilst that decision contains implicit reference to the use of inferences, there are clear factual distinctions to be made between Mr Law's service and the veteran in this case. That case is particularly focused upon the standard of proof relating to operational service, which has no relevance to these proceedings.
Turning to the type of connection that is able to be drawn between service and smoking, in Repatriation Commission v Tuite (1993) 29 ALD 609 at p611, the Full Federal Court stated (inter alia):
"…
Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9(1)(b), but not under ss 9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred.
…"
The Tribunal was further referred to Re Charlton and Repatriation Commission (AAT 10642, 28 December 1995) in which peer pressure, boredom and conditions of service were raised as relevant factors, and the Tribunal relied upon Law and Re Tuite. The Tribunal must concur with Mr Doube however, that there are extreme factual distinctions to be drawn between the cases, as in Re Charlton, the Tribunal had the benefit of hearing from the veteran.
In Repatriation Commission v Edwards (Unreported Federal Court, G250/93, 3 September 1993), Lockhart J stated at paragraph 28:
"28. Although the evidence in this case before the Tribunal in support of its conclusion that the veteran's smoking habit arose out of or was attributable to his war service is rather meagre; nevertheless the evidence of Mr Sheel in particular and to a lesser extent the evidence of Mrs Edwards was accepted by the Tribunal as sufficient to support its finding that it was reasonably satisfied of the requisite causal link between the veteran's smoking and war service. Provided there is evidence to support this finding it is for the Tribunal to determine the evidence which it accepts as it is the judge of the facts. This is not a case where there was no evidence upon which the Tribunal could reasonably conclude that there was the requisite link between war service of the veteran and his subsequent death. Fragile though the evidence may be, it has not been established to my satisfaction that the Tribunal erred in its conclusion."
It is important to consider the evidence in that case, and Lockhart J sets it out (inter alia) at paragraphs 17, 18 and 19:
"17. Mrs Edwards' evidence may be summarized as follows. The veteran told her that he took up smoking in his 30's (he was aged 32 to 36 during his war service). He told her that he had never smoked until he joined up. She had the impression from what he had told her that he had a stressful job during the war. He never told her how much he smoked when he was in the army. When Mrs Edwards first met her husband he smoked three packets of cigarettes a day, sometimes he smoked less but his attempts to reduce smoking were unsuccessful. At best he reduced to 2 ½ packets per day for a few months. He tried hard to give up smoking but failed to do so.
18. Little is known about what the veteran did during the war except that he did not serve overseas; though he served in either brigade or divisional headquarters, most if not all the time, and for a large part of which he was in charge of "transport pools".
19. Mr Sheel gave evidence that when he saw Mr Edwards shortly before his discharge in December 1945 he was told by the veteran that he had learned to smoke in the army "because there was nothing else to do. I was bored." By that time the veteran was a chain smoker of cigarettes. Mr Sheel said that the veteran "was always jerky … he would be puffing away and he never had a cigarette out of his mouth. That seemed to - that must have calmed him down somehow or other." He never observed a smoking habit of the veteran before the war, but his opportunity to observe this would have been limited because he was coached for about one hour a week when he was a 14 year old boy. Mr Sheel met the veteran regularly after his discharge from the army and he observed him as a chain smoker of cigarettes. Mr Sheel was unable to compare the emotional state of the veteran before the war with his apparently "jerky" condition thereafter."
If the evidence in Edwards is considered to be "shaky", then this current matter must be said to have significant hurdles to overcome, in order to satisfy the Tribunal that there are "reasonable and definite inferences" that may be drawn to connect the veteran's smoking in a causal way with his service.
From the outset, the Tribunal would note that in its assessment of the applicant, it does not consider that she has in any way attempted to concoct a story for the purposes of these proceedings, and considers that the inconsistencies in her statements are attributable to the passage of time more than anything else. In any event, her evidence to this Tribunal was that she is simply unaware of the veteran's smoking history prior to enlistment, but does not think it likely that he was smoking, or smoking much. She recalls him smoking on leave breaks during his service, and post-service. She also agreed to a question put in cross-examination that his smoking got heavier following the ensuing difficulties in establishing the farm and the problems with the flood.
Mr Mullins was an entirely credible and forthright witness, but as he stated, he is unable to confirm the veteran's smoking history prior to the time they began driving trucks from Alice Springs. Mrs Threfall told the Tribunal that she could not recall the veteran smoking, or any of the other boys at the social occasions at which she would spend time with them. She further considered that they could not have afforded to smoke and told the Tribunal that it was not the done thing. In support of this, she could recall one particular boy who smoked, and obviously in her mind, he was the exception to the rule.
As to the time subsequent to service, the applicant told the Tribunal that the veteran was a heavy smoker upon discharge, a statement in conflict with Dr Guerin's record of the veteran's own account, namely that he only became a heavy smoker due to the stress and problems in establishing the farm post-war. Mrs Threfall is of no assistance in relation to the veteran's smoking upon discharge, as she herself was not discharged until some time later in 1946.
The difficulty for the Tribunal is that there are conflicting statements in this case, as to whether the veteran smoked prior to his service, and the extent of his smoking post service. Whilst it can appreciate that the veteran may have underestimated his smoking to Dr Guerin, it accepts Dr Guerin's evidence that the veteran would have given a history as described in paragraph 18 herein, and this conflicts with the applicant's evidence as to the veteran's post-war smoking. It is consistent however, in that the veteran began smoking more due to the problems in establishing the dairy. Whether or not the veteran was entirely honest to Dr Guerin is yet another matter, but the Tribunal cannot disregard that history entirely, for albeit hearsay, it is the only record the Tribunal has of the veteran's own account of his smoking history.
With regards to the pre-war smoking history, the Tribunal has no solid evidence upon which to make a finding as to whether the veteran did in fact smoke prior to his service, contrary to the situations in the authorities relied upon by the applicant, wherein there was such evidence. On the basis of Mrs Threfall's evidence and that of the applicant, it is perhaps a reasonable inference to draw that it is unlikely that he smoked prior to the war, but the applicant has herself given contrary indications in earlier proceedings (T5/31 and T5/34). There are also significant gaps in their knowledge of the veteran pre-war, which mean that their evidence is not of great assistance in providing a picture of what the veteran might or might not have been doing outside of social occasions. Whilst it may be a reasonable inference to draw therefore that the veteran did not smoke, it could not be considered to be a "definite" inference.

It could equally be said that it is a reasonable inference that as both the applicant and Mrs Threfall only saw the veteran on social occasions, that he may well have smoked outside of such occasions, especially given the applicant's concessions in the earlier proceedings (T5/31 and T5/34) that he may have smoked to some degree.
The veteran certainly smoked to some extent from the time he was stationed at Alice Springs and thereafter, but the Tribunal is not in a position to draw a reasonable and definite inference, on the evidence available, as to whether or not he smoked prior to this posting, and if so, to what extent.
There are too many gaps in the evidence in this case for any such reasonable and definite inferences to be drawn, both as to the prior and post-war smoking of the veteran. Maybe he smoked before the war, maybe he did not. Maybe he smoked heavily upon discharge, or maybe he was down to about 2 per day upon discharge, but increased thereafter as a consequence of the stress of establishing a farm. Maybe the circumstances of his service caused his smoking to increase, or maybe he was already smoking, and his service simply afforded him the opportunity to smoke more often, giving a temporal rather than causative relationship. Each of these appear to be reasonable inferences to draw on the evidence.
The presence of conflicting inferences to this degree, means that the Tribunal would be choosing between them as a "mere matter of conjecture" (per Luxton v Vines). This leaves the Tribunal in a position where it would only be speculating as to whether a causal relationship can be drawn between the veteran's smoking and his war service.
On this basis, the Tribunal cannot be reasonably satisfied that the evidence supports the conclusion that there is a reasonable and definite inference to be drawn connecting the veteran's smoking with his war service, and the Tribunal so finds. Whilst the evidence may be sufficient on the reverse standard of proof under consideration by the High Court in Law, it cannot satisfy the Tribunal on the balance of probabilities. Given the gaps in the evidence, it can only be a reasonable possibility that a causal link can be found between such smoking and the circumstances of the veteran's service.
It is an unfortunate result in this case, and the Tribunal is certainly appreciative that what was required of the veteran in his war service must have been just as tough as many who served overseas. In the circumstances, and in the absence of enough evidence to enable the Tribunal to draw reasonable and definite inferences, it has no option but to affirm the decision under review.
decision
For the reasons given, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Ms U. Dahl (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  18 July 2000
Date of Decision  2 August 2000
Counsel for the Applicant        Ms E. Reed
Solicitor for the Applicant         Norman Waterhouse
Counsel for the Respondent    Mr G. Doube
Solicitor for the Respondent    DVA