Lane and Repatriation Commission
[2005] AATA 566
•15 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 566
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/531
VETERANS APPEALS DIVISION ) Re BARRY LANE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date15 June 2005
PlaceBrisbane
Decision The Tribunal decides to set aside the decision under review and substitute the decision that
(a) the Applicant's chronic bronchitis and emphysema is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 3 March 2003.
(b) The Tribunal remits the matter to the Respondent for the assessment of the rate of pension payable.
..................[Sgd].......................
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – defence service with the Royal Australian Navy – chronic bronchitis and emphysema – application of Statements of Principles - conditions defence-caused - decision under review set aside and substituted – assessment of rate of pension remitted to respondent
Veterans’ Entitlements Act 1986 ss 69A, 70, 120(4), 120A, 120B, 174 – 176, 180A, 196B
Secretary, Department of Social Security v Murphy (Federal Court, 29 June 1998, 809/98
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Repatriation Commission v Law (1981) 147 CLR 635
Re Nicholls and Repatriation Commission [2004] AATA 649
Re Morton and Repatriation Commission [2002] AATA 232
Re Hipsley and Repatriation Commission [(AAT 5228, 9 July 1989)
Re Renton and Repatriation Commission [2003] AATA 135
Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365
Schmidt v Repatriation Commission [2004] FCA 1158
Smith v Repatriation Commission (1987) 74 ALR 537
Re Buckham and Repatriation Commission [2000] AATA 174
Haughey and Repatriation Commission [2005] AATA 189
Williamson and Repatriation Commission [2004] AATA 1185
Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609
Hillier v Repatriation Commission [2004] AATA 897
Palmer and Repatriation Commission [2005] AATA 2REASONS FOR DECISION
15 June 2005 Mr SC Fisher, Member Introduction and background
1. Mr Barry William Lane (the Applicant) served in the Royal Australian Navy from 27 October 1958 to 9 May 1980, with his eligible service being defence service from 7 December 1972 to 9 May 1980.
2. The Applicant lodged a claim for entitlements in the nature of the payment of medical treatment and pension for incapacity under the Veterans’ Entitlements Act 1986 (Cth) on 3 June 2003 in respect of "chronic bronchitis and emphysema". On 30 June 2003, a delegate of the Repatriation Commission (the Respondent) rejected this claim on the basis that no incapacity was found.
3. The Applicant appealed to the Veterans' Review Board on 22 August 2003, who on 20 April 2004 affirmed the decision of the Respondent, and notified the Applicant to that effect on 21 April 2004.
4. The Applicant sought review of the 30 June 2003 decision of the Respondent by application made to this Tribunal on 7 July 2004.
Jurisdiction
5. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision under Review
6. The decision under review is a decision made by the Respondent on 30 June 2003 denying liability in relation to the Applicant to pay compensation for medical expenses and pension in respect of the condition "chronic bronchitis and emphysema".
The Role of the Tribunal
7. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (Federal Court, 29 June 1998, 809/98, Drummond J). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
The Material Before the Tribunal
8. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 2Medical Report dated 8 November 2004 from Dr David McEvoy, Consultant Respiratory Physician.
Exhibit 3Statement of Barry Lane dated 4 October 2004.
Exhibit 4Statement of Barry Lane dated 22 December 2004.
9. The Applicant was represented by Mr P Beauchamp, an RSL Advocate. Exhibits 3 and 4 were lodged on behalf of the Applicant.
10. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1. Exhibit 2 was lodged on behalf of the Respondent.
11. The Respondent was represented by Mr M Smith, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.
12. Both parties lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence
13. The only person to give evidence in this proceeding was the Applicant.
Issues
14. The issue before the Tribunal are whether the Applicant’s conditions of chronic bronchitis and emphysema are defence-caused within section 70 of the Act. It is common ground that if the Applicant is successful in his claim, the date of effect would be 3 March 2003.
Applicant’s Evidence
15. The Applicant gave evidence in person and also in statement form, Exhibits 3 and 4 having been filed on his behalf. Exhibit 3 best summarises the tenor of the Applicant's evidence in chief in this hearing. Exhibit 3 reads as follows:
- I commenced smoking sometime after I joined the RAN in October 1958 and in the beginning I would have probably only smoked about 3 to 5 cigarettes daily, in hindsight the reasons would have been that every one else did and I only recall one of my class who did not smoke aside from myself, other reasons would have been peer pressure, socially acceptable and everyone else did it. Instructors used to say during stand easy periods ‘smoke them if you have them’.
- I continued smoking throughout my training period of approx 11 months and gradually smoked more and more and as I recall on paydays we all used to buy 3 to 4 packets of roll your own to last until the next pay day which would have meant I was by then smoking about 12 to 17 cigarettes per day.
- My smoking habit continued on posting to HMAS ANZAC in approx the end of 1959 where duty free cigarettes and tobacco was available to all personnel.
- I was posted to HMAS HARMAN in 1961 but continued smoking and increased my habit as I was watch keeping throughout and I believe I was then smoking approx 25 cigarettes a day.
- In 1962 I was posted to United Kingdom as part of the standby crew for the minesweeper HMAS CURLEW. Throughout this time I remained smoking and duty free tobacco was available in the Royal Navy ships which we availed ourselves of. It is my estimation that I was probably smoking about 30 a day at this time. On arrival back in Australia I was posted to HMAS HAWK squadron leader on the 16th Minesweeping squadron and my workload increased to the extent that I was the senior Communications rating and as such was responsible for my own ships communications and the operators of the other minesweepers when in company. Whilst on HMAS HAWK I approached the Medical Officer on HMAS MELBOURNE as minesweepers didn’t carry a Medical officer, to seek advice on giving up smoking, the M.O. advised me to just give it up but if I must smoke, to smoke a pipe, which I did, as I couldn’t give up smoking.
- Towards the end of 1963 or early 1964 I was posted to HMAS MELBOURNE. As is well known in February of 1964 Melbourne was in collision with and sank HMAS VOYAGER with heavy loss of life. Due to the stress of this incident and other personal factors my smoking started to increase heavily. I estimate that I was then smoking 40 to 50 cigarettes a day both pipe and cigarettes. Notwithstanding my previous statement of 15 to 20 a day while on Melbourne which was a period when I was trying to give up. At the end of 1964 I was posted to HMAS HARMAN and I remained smoking about 40 to 50 cigarettes and after completing a Senior Rates course and being re posted back to HMAS HARMAN I took on more responsibility at the BELCONNEN transmitter station where I was Radio Supervisor of the watch and had the responsibility of overseeing the operations of the RAN’s primary transmitter station. My smoking at this time would have only increased marginally but the job was stressful and challenging.
- I was posted to HMAS STALWART under construction at Cockatoo Dockyard in 1967 and my smoking levels remained approximately the same.
- In 1969 I was posted to HMAS COONAWARRA Naval Radio Station as senior radio supervisor followed on promotion as the regulating Chief Radio Supervisor which entailed the oversight of all junior communications personnel in the receiving station and this was stressful given the circumstances of climate etc, but my smoking probably remained the same if not increased a little.
- In 1971 I was posted back to HMAS HARMAN as Chief of the Watch and my smoking increased noticeably in both cigarettes and pipe due to stress from the process of being part of the setting to work of the computerisation of naval land communications. After a short period as Chief of the Watch I then became the Regulating CPO in charge of all ratings working in the computer complex and at the communications centre back at HMAS HARMAN. It would not be uncommon for me to smoke up to 70 or 80 cigarettes and/ or pipe a day as this was a highly stressful and demanding task which involved trying to keep all watches balanced and everyone happy which is almost an impossibility.
- There are several instances in my service Medical history documents which may have indicated a respiratory problem records dated 9/7/68, 26//1/77, 22/11/78 and 11/7/79 are relevant.
- I was posted to HMAS PARRAMATTA in 1973 and as far as I recall my smoking levels remained the same.
- On completion of time on HMAS PARRAMATTA I was posted to HMAS MORETON as Senior Communications sailor for NAVAL OFFICER COMMANDING Queensland, where I oversaw the communications set up for NOC Qld and monitored the operations of patrol boats operating from HMAS CAIRNS and the Landing craft communications as well as the operation of Communications for HMAS MORETON. At this stage my smoking remained at about 50/60 a day sometimes more.
- In March 1980 I was posted to HMAS LONSDALE to work as Assistant Distributing Authority Melbourne which involved the preparation for computerisation of the RAN’s classified books operation as well as the supervision of about 30 civilian staff engaged in the processing of all publications. Due to heavy work load and stress I was by this time smoking approximately up to 80 cigarettes a day or the equivalent, I do recall ordering from the canteen at LONSDALE pipe tobacco 5 tins at a time.
- I resigned from the RAN on 9th May 1980 and took employment with Queensland Harbours and Marine as a Shipping Information Officer. This job entailed working on my own in the signal station on 12 hour shifts and I was smoking heavily, mainly my pipe but on off periods cigarettes as well. I was noticing that I was becoming quite breathless and fatigued doing normal chores around my home and tried to give up smoking, I consulted my Dr with respiratory problems on a few occasion which occurred mainly in winter time.
- In 1997 prior to an overseas trip I finally managed to give up smoking which lasted for about 7 months. Due to personal reasons I started to smoke again but not as heavily and continued to do so until 2002 when I consulted my GP and had a chest Xray, the result of which I was diagnosed with emphysema by Dr Mark Smith. I gave up smoking and after several tests carried out by Dr M Heiner and Dr McEvoy the latter at the behest of Veterans affairs it was confirmed that I had smoking induced chronic bronchitis with or without emphysema. Veterans Affairs have accepted this diagnosis. I started smoking again after over 2 years off it in about Sept 2004 but I have since ceased altogether.
16. The Applicant's evidence concerning his smoking consumption was not seriously challenged by the Respondent during cross-examination. During cross-examination, the Applicant said that after he left the Navy in 1980, he worked in the Queensland Harbour & Marines Department for 24 years and that he estimated that over this interval of time he smoked about 35 cigarettes per day. The Applicant said that he gave up smoking in 1997 for a period of 7 months.
Respondent’s Medical Evidence
17. Dr David McEvoy, Consultant Respiratory Physician, provided a medical report dated 8 November 2004 at the request of the Respondent. This became Exhibit 2 in these proceedings. Dr McEvoy was not required for cross-examination by the Applicant. Dr McEvoy's opinions and findings are summarised in the following account:
“OPINION
The history of heavy tobacco smoking throughout his life together with the current history of a chronic cough productive of scanty sputum would make the diagnosis of simply chronic bronchitis secondary to tobacco smoking.
Pulmonary function tests show normal values for FEV and FVC in fact they are above normal. The expiratory flow parameters indicate narrowing of small airways to a very minimal degree and this would certainly be a consequence of former and current tobacco smoking. Finally although the lung volumes are normal, the gas transfer is significantly reduced. The reason for this is not clear. It may be due to emphysema or other lung pathology. The CT scan report that I read, did not describe any evidence of emphysema.
I would prefer to have reviewed the thoracic CT scan to determine whether there is any evidence of pathology such as the bronchiectasis that has been reported or the emphysema that I suspect may be present. The films were not available for review but I would be happy to look at them and make subsequent report if you wish.
SUMMARY.
1.The diagnosis is simple chronic bronchitis. There is a minor degree of accompanying small airway obstruction and a reduced CO gas transfer. These findings together make it probable that this man has chronic obstructive pulmonary disease either with or without emphysema.
2.The date of onset of the condition is unknown. The first time that Mr Lane recalls presentation with symptoms was in 2002.
3.Cigarette smoking has been the very predominant risk factor of COPD.
4.Cigarette smoking occurred in the year that he commenced naval service and has continued since that time.
5.The levels of current impairment is minimal although I accept that the deconditioning effects of regular smoking and mild COPD have probably combined equally to reduce effort tolerance as described. On the basis of lung function criteria (AMA Guides to Permanent Impairment 4th Edition) this man has zero percent impairment.
6.Voluntary retirement has occurred.
7.Cessation of smoking would be the most appropriate measure to deal with his condition.”
18. The Tribunal notes that Dr McEvoy was not able to make a diagnosis of emphysema because he did not have the relevant diagnostic tool before him at the time he examined the Applicant. Evidence from the Applicant's Local Medical Officer, Dr Mark Smith, is to the effect that the Applicant does have emphysema.
Applicant’s Submissions
19. The written submissions filed on behalf of the Applicant were not all that clear, but in his closing address, the advocate for the Applicant made the following submissions:
20. The Applicant accepted that Statement of Principles No 31 of 2004 applied in this case. The Applicant argued that as a result of his experience on the HMAS Melbourne following the collision with the HMAS Voyager in February 1964 he began to smoke more heavily. The Applicant contended that the increases in his smoking levels in 1973 where there was an increase in his smoking of 30 cigarettes per day over the pre-1973 levels of consumption.
21. The advocate for the Applicant provided the following information and calculations in relation to the smoking of the Applicant:
REPATRIATION COMMISSION GUIDELINES
22. CM5030 – Guideline for Claims Assessors on Smoking and Alcohol Related Conditions and Military Service
Smoking
1.Smoking is strongly addictive.
2.There is evidence that military populations smoke more than civilian populations. Service life contains many potential links to smoking. Stress, peer pressure, availability and boredom are among them.
3.After an investigation is complete, there needs to be material that points to the commencement or increase of smoking on service, that is, a temporal (time) link between smoking and service.
4.If the temporal link exists, in NON-OPERATIONAL SERVICE CASES, material positively supporting the claimed causal connection (see point 2 above) to service is needed in addition to the temporal connection.
CAUSAL CONNECTION
23. Mr. Lane has indicated that he believes two stress related instances in service had contributed to his increased smoking habit. The first being the sinking of the VOYAGER at which time he was in the bow of the Melbourne when she struck and sank the Voyager causing loss of life and severe injury, he was also part of the rescue teams set up to retrieve the dead and injured which was a very traumatic experience.
24. The next was when he was posted to HMAS Harman in 1971 and in 1973 was made Regulating Chief Petty Officer the stress of this senior position and added responsibilities caused him to increase his smoking habit as indicated on page 1 Para 6 of his smoking report dated 4 Oct 04.
25. He further indicates in his statement of 22nd Dec 04 on page 2, 2nd Para indicates that his smoking increased due to stress, it was at this time he began smoking up to 80 cigarettes daily an increase of up to 30 cigarettes daily on his previous habit. Mr. Lane indicates that that his smoking decreased to about 60 cigarettes daily for a short period then increased again to 80 cigarettes daily until his discharge in May of 1980.
26. Therefore, a rough calculation of smoking years from approx March 1973 to discharge 9 May 1980 equates to approximately 2619 days at approx 30 cigarettes daily = 78570 cigs divide 7300 cigs per annum = 10.76 yrs. Therefore meeting the requirements of 10 pack years of smoking for the SOP 31/2004 factor 5 (a) requirements.
CALCULATIONS
DAYS TOTAL
YEARS FROM : 1973 365
1974365
1975365
1976365
1977365
1978365
1979365
9/5/80 1980 129 2677 + 2 (Leap Years)
TOTAL DAYS
(Allowing 6 months reduced to 10 cigarettes and no increase)Sub Total 2495 x 30 cigarettes
Cigarettes 74850 divide 7300
Pack Years 10.25 Years
27. The Applicant argued that he met the requirements of Statement of Principles No 31 of 2004, and in particular Factor 5(a) in that he had smoked at least 10 pack years of cigarettes, or the equivalent in other tobacco products, before the clinical onset of chronic bronchitis and/ or emphysema.
Respondent’s Submissions
28. The contentions of the Respondent were as follows:
- The original case establishing smoking as a causal factor, and from which all other smoking contentions flowed, was Repatriation Commission v Law (1981) 147 CLR 635. The Court held, at paragraph [7]:
“Although the claimant did not have to adduce proof, there was formidable support for her case. The evidence, together with common experience, was enough to establish that tobacco is a drug of addiction, and that once addicted it is extremely difficult to be cured, especially in a society in which trafficking in this drug is legal and addiction is reinforced by extensive advertising and other promotion. There was strong evidence to prove the deceased’s original addiction on war service and his continued addiction and heavy smoking for many afterwards.”
- The point to be noted is the last sentence. Smoking becomes a causal factor because the addiction commenced on service, and the continuation of smoking after service was also a result of the addiction.
- Cases where the Tribunal has accepted increases in smoking as war-caused have involved operational service, and the contention that the veteran has been a light smoker prior to eligible service. In Re Nicholls and Repatriation Commission [2004] AATA 649, for instance, the Applicant increased from 10 cigarettes per week to 100 per week. It is notable that in this case, the pre-war consumption could be reasonably assessed, because he lived with his anti-smoking grandmother, and was unable to smoke except on a few social occasions. In Re Morton and Repatriation Commission[2002] AATA 232, the Applicant allegedly increased from 2-3 per day to 20 per day. In Re Hipsley and Repatriation Commission (AAT 5228, 9 July 1989) the increase was from 10 to 20 per day.
- However, the present case is clearly different. In the first place, the standard of proof is reasonable satisfaction. Secondly, the Applicant was not merely a light smoker prior to eligible service; by his own account, he was already smoking 40 or 50 cigarettes a day by 7.12.72, and sometimes as much as 70 or 80.
- The Applicant’s smoking history is one of steady increase throughout his life. The obvious conclusion is that his body was developing an increasing tolerance to nicotine. He attributes this to “stress”, but this is a very vague and flexible term. It is not contended that he suffered form any psychological disorder. “Stress” appears to be simply a synonym for “pressure of work”. No evidence was presented, however, that such a thing can permanently alter the level of an addiction. Moreover, pressure of work during eligible service appears to have been fairly similar to that of non-eligible service – as well as in later civilian life, where he was working 12 hour shifts.
- The facts of the case are similar to those in Re Renton and Repatriation Commission [2003] AATA 135, in which the Tribunal stated, at [15]:
“The Tribunal thoroughly and carefully considered all the Applicant’s evidence regarding the difficulties and stated stress that he experienced during eligible defence service. The Tribunal accepts that at times things were often difficult for him at work and at home. However it is unable to conclude properly that such difficulties and apparent resultant feelings of some stress were sufficiently different to be of real significance from those which were likely to be experienced in civilian life. Different jobs, family ill-health and also inadequate housing tend to be common problems in both service and civilian life, particularly for ordinary younger married people and especially was this so in the 1960s and 70s. The Tribunal also notes in this regard the Applicant’s evidence stating his difficulties in civilian employment post discharge, including complaints of stress and hence resultant on-going and increased level of smoking.”
- Even if an increase in smoking can be related to service, there still remains the issue of whether the increase amounted to 10 pack years. It is obvious that the total tobacco consumption prior to eligible service was well above 10 pack years, so the “but for” contention of Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365 does not apply.
- From 1964 to 1970, the Applicant was smoking at least 40 or 50 cigarettes per day. In 1971 his smoking increased – often to as much as 70 or 80 per day. This was before the commencement of eligible service on 7.12.72. From 1973 to 1980 he was smoking 50 to 60 per day, which appears to have been the baseline established in 1971. In March 1980 – only two months or less before discharge – it increased to 80 a day. In 1997 he gave up smoking for 7 months, and when he took it up again, it was at a reduced level. Once smoking returns to the baseline, any increase due to service will have been lost. Therefore, the only period under consideration would be 1980 to 1997, a period of 17 years. 10 pack years equates to 73,000 cigarettes. Divided into 17 years, this comes to 11.8 cigarettes per day. Therefore, only if there had been a consistent increase of this amount for the whole 17 years, and there was a causal connection to service, can the SoP be satisfied.
Findings of Fact
29. Based upon the evidence before it, the Tribunal makes the following findings of fact:
A.Mr Barry William Lane (the Applicant) was born on 20 January 1941.
B.The Applicant served in the Royal Australian Navy from 27 October 1958 to 9 May 1980.
C.The Applicant rendered defence service from 7 December 1972 to 9 May 1980.
D.The Applicant suffers from chronic bronchitis.
E.Symptoms of chronic bronchitis were diagnosed in 2002.
F.The smoking history of the Applicant is as follows:
Cigarette consumption per day Enlistment (1958) 3 – 5 1960 12 – 17 1961 25 1962 30 1964 – 1967 40 – 50 1971 – 1973 70 – 80 Sometime after 1973 50 – 60 1980 80 1980 – 1997 35 1997 Cessation of smoking for 7months
Legislative framework
30. It was common ground between the parties that the Applicant had rendered defence service. In this case, the Applicant has not rendered any hazardous service within section 69A of the Act. The veteran's injury or disease is taken to have been "defence-caused" if it meets one of the criteria specified in section 70 of the Act. In this case, the circumstances are such that it is only sections 70(1), 70(5)(a) and 70(5)(d) of the Act which are relevant, and these provisions read:
“70 Eligibility for pension under this Part
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence‑caused; or
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
...
(d)the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)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;
31. In this case, because of the text and structure of the Act, the defence service of the Applicant can only have commenced on 7 December 1972.
32. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
33. The standard of proof to be followed by the Tribunal in relation to the claim of the Applicant is governed by section 120(4) of the Act, which states:
“120 Standard of proof
(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.”
The Note to section 120(4) provides a signpost to section 120B, which reads:
120B Reasonable satisfaction to be assessed in certain cases 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 eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(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(3) 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) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(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(3), 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”
34. In following the pathway signified by sections 120(4) and 120B(3) of the Act with reference to the reasonable satisfaction of the decision-maker, Beaumont J of the Federal Court in Smith v Repatriation Commission (1987) 74 ALR 537 at 547 said that a decision-maker (including this Tribunal):
"... should have asked itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 354; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner 12 ALD 587.”
35. This particular passage and its mode of analysis were followed by this Tribunal in Re Buckham and Repatriation Commission [2000] AATA 174 at [55].
36. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of chronic bronchitis and emphysema pursuant to section 196B(2) of the Act. Section 120A of the Act says the reasonableness of the hypotheses must be assessed against the relevant SoPs. A SoP is brought into existence in order to comply with section 196B of the Act: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42]. There were no determinations of the Repatriation Commission under subsection 180A(2) of the Act that are relevant to this case, and the parties did not contend to that effect.
37. Section 196B(14) of the Act sets out the relationships to service contemplated by the SoP’s, whether the service is war service or defence service: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:
“196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(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; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(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; 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.”
38. In relation to any part of the Applicant’s claim for any condition that is said to relate to defence service (as distinct from operational service), the Deledio “reasonable hypothesis” approach is not followed – instead the Tribunal must simply test the Applicant’s claim against the factors of the relevant SoP. For the Applicant to be successful, the Tribunal must accept his or her claim to a standard of reasonable satisfaction: see Williamson and Repatriation Commission [2004] AATA 1185. The Tribunal must be satisfied (to a standard of reasonable satisfaction) that the Applicant suffers from a medical condition. The Tribunal considered this aspect next.
Diagnosis
39. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act. On the basis of the medical opinions before the Tribunal, as well as the express concession by the Respondent, the Tribunal is satisfied that the Applicant suffers from chronic bronchitis and emphysema. This finding, however, does not conclude the matter as there must exist the relevant connection between the Applicant's medical condition and his defence service.
Tribunal’s Reasons
40. It is common ground between the parties that the Applicant rendered defence service from 7 December 1972 to 9 May 1980. Accordingly, it is between those two dates that the Tribunal must determine whether or not the requisite linkage or connection exists between the Applicant’s medical condition and his defence service.
41. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the Applicant's condition and his or her service. The Tribunal has to decide whether the applicable SoP upholds the contention that the Applicant’s injury is, on the balance of probabilities, connected with the Applicant's service (s120B(3)(b) of the Act). The relationship to service must be one of the relationships prescribed in s196B(14) of the Act: Haughey and Repatriation Commission [2005] AATA 189 at [63].
42. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the Applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail: Haughey and Repatriation Commission [2005] AATA 189 at [64].
43. Potentially, there are two SoPs that are relevant in the circumstances of this appeal, the first being SoP No 31 of 2004 and the second being SoP No 74 of 1997 (the second was revoked by the first with effect from 7 October 2004). In accordance with the decision of the Full Court of the Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15]. Accordingly, the Tribunal considers SoP No 31 of 2004, which was in any event agreed between the parties.
44. Relevant excerpts from SoP No 31 of 2004 are extracted next:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about chronic bronchitis and emphysema and death from chronic bronchitis and/or emphysema, either alone or in combination.
(b) For the purposes of this Statement of Principles,
(i)“chronic bronchitis” means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum for at least three months of each year for at least two consecutive years, where such mucus production is not attributable to another respiratory disease.
(ii)“emphysema” means a bilateral and diffuse respiratory tract disorder which is characterised by distension of airspaces distal to the terminal bronchiole with destruction of alveolar septa, and without obvious fibrosis. This definition excludes isolated emphysematous bleb and surgical, traumatic, unilateral, focal or localised emphysema, and Swyer-James syndrome (also known as MacLeod’s syndrome or hyperlucent lung syndrome).
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5. The factor that must exist before it can be said that, on the balance of probabilities, chronic bronchitis and emphysema or death from chronic bronchitis and/or emphysema is connected with the circumstances of a person’s relevant service is:
...
(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;
Other definitions
8. For the purposes of this Statement of Principles:
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
“relevant service” means:
(a) eligible war service (other than operational service) under the VEA; or
(b) defence service (other than hazardous service) under the VEA; or
(c) peacetime service under the MRCA;”
45. Adapting what this Tribunal said in Palmer and Repatriation Commission [2005] AATA 2 at para [63]:
“Clause 4 of the SoP requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran.... The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of [SoP No 31 of 2004] does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker.”
46. Following Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42], it is proper to read into the language of the SoP the language of s 196B(14) of the Act.
47. In Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [9], the Federal Court said that section 196B(14) of the Act explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase “related to service”. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present.
48. In this case, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, corresponds to paragraphs (b) and (d) of section 196B(14) of the Act (with paragraphs (e) and (f) also potentially applicable but which were not examined by the Tribunal).
49. In this case, the medical evidence before the Tribunal records that the clinical onset of chronic bronchitis or emphysema in relation to the Applicant was in 2002. Factor 5(a) of SoP No 31 of 2004 requires the Applicant to have smoked "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". Factor 5(a) contains no limitations as to when the veteran must have smoked the requisite 10 pack years of cigarettes (or equivalent tobacco products), so long as this predates the clinical onset of chronic bronchitis or emphysema. Factor 5(a) does not contain any limitation to the effect that all of the 10 pack years of cigarettes must have been smoked during defence service (not being hazardous service), so long as this is related to the relevant service of the veteran (in the sense explained above).
50. As noted earlier in these Reasons for Decision, the Applicant's evidence concerning his smoking consumption was not seriously challenged by the Respondent during cross-examination. In summary format, a paraphrase or distillation of the evidence of the Applicant concerning his level of smoking can be tabulated as follows (the column captioned "Pack Year" is the Tribunal's calculation based upon SoP No 31 of 2004 and based upon a denominator of 20 cigarettes per day):
Date Cigarette consumption
per dayPack Year Enlistment (1958) 3 – 5 0.15 -- 0.25 1960 12 – 17 0.6 -- 0.85 1961 25 1.25 1962 30 1.5 1964 – 1967 40 – 50 2.0 -- 2.5 1971 – 1973 70 – 80 3.5 -- 4.0 Sometime after 1973 50 – 60 2.5 -- 3.0 1980 80 4.0 1980 – 1997 35 1.75 1997 Cessation of smoking for 7 months 51. Because the relevant type of service is defence service, smoking before 7 December 1972 is to be disregarded. The above table records that between 1973 up to at least 1997 (when the Applicant stopped smoking for a period of 7 months), the Applicant smoked a quantitative minimum of 1.75 pack years in each year. Accordingly, the Applicant satisfies the minimum smoking standard of 20 cigarettes per day. For the purpose of SoP No 31 of 2004, it is still necessary to relate the smoking of the Applicant to his defence service. The evidence before the Tribunal, which was not challenged by the Respondent, was that the Applicant increased his level of smoking during his defence service due to (1) peer pressure after enlistment and the completion of the initial training period, and (2) on-the-job stress which at times increased and abated depending upon the tasks and responsibilities performed by and assumed by the Applicant.
52. In the opinion of the Tribunal, the requisite causal nexus between the Applicant's naval responsibilities and his increasing smoking consumption over the years of service satisfies the requirement of Factor 5(a) of SoP No 31 of 2004 such that it can be said for the purposes of Clause 4 of SoP No 31 of 2004 that the smoking of the Applicant was related to his defence service. To explain this further and in a different way, the Tribunal is satisfied that, at a minimum, the self-imposed stress management technique of smoking of the Applicant arose out of or was attributable to his defence service. The smoking arose out of defence service in that smoking was the Applicant's method of coping with the stresses and demands of his naval responsibilities. Alternatively, the Applicant's smoking was attributable to his defence service in that his day-to-day responsibilities and tasks were the cause or reason for which he began and increased his level of smoking as his naval service went on.
Tribunal’s Conclusion
53. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct and preferable decision in this case is that the Applicant’s condition of chronic bronchitis and emphysema are defence-caused within the meaning of the Veterans’ Entitlements Act 1986.
Tribunal’s Order
54. The Tribunal decides to set aside the decision under review and substitute the decision that
(a)the Applicant's chronic bronchitis and emphysema are defence-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 3 March 2003.
(b)The Tribunal remits the matter to the Respondent for the assessment of the rate of pension payable.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Member SC Fisher
Signed: Jenny Tran
Associate
Date/s of Hearing 4 March 2005
Date of Decision 15 June 2005For the Applicant Mr P Beauchamp
For the Respondent Mr M Smith, Departmental Advocate
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