Laurie and Repatriation Commission
[2002] AATA 360
•17 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 360
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/913
GENERAL ADMINISTRATIVE DIVISION )
Re RAYMOND BRUCE LAURIE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier IRW Brumfield
Date17 May 2002
PlaceBrisbane
Decision The tribunal sets aside the decision under review and determines that Raymond Bruce Laurie's Condition of Ulcerative Colitis is Defence Service caused.
..(Signed)....................
IRW BRUMFIELD
(MEMBER)
CATCHWORDS
VETERANS AFFAIRS – Whether smoking habit is service related
Veterans Entitlement Act 1986 ss 70(1), 70(5), 120B
Repatriation Commission v Tuite (1993) 17 AAR 158
Repatriation Commission v Bendy (1989) 18 ALD 144
Hawkins v Repatriation Commission (1993) 30 ALD 59
Re Burrows and Repatriation Commission [2001] AATA 769
REASONS FOR DECISION
17 May 2002 Brig IRW Brumfield
This is an application by Raymond Bruce Laurie for review of a decision of the Repatriation Commission on 17 December 1998 that ulcerative colitis was not defence service caused. On 22 August 2001 the Veterans Review Board affirmed that decision.
The Tribunal had before it documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-16) and the following exhibits:
For the Applicant
Statement by Raymond Laurie undated (A1)
Statement by Raymond Laurie dated 25 October 2001 (A2)
Statement by Gary Forsythe dated 17 April 2002 (A3)
Statement by Tracy Laurie dated 16 April 2002 (A4)
Statement by David Thomas dated 16 May 2001 (T documents, folio M)
For the Respondent
Medical and Treatment Report dated 11/11/86
ISSUES
The principal issue to be determined in this matter is whether the Applicant's smoking habit is related to his defence service
LEGISLATIVE FRAMEWORK
The Veterans Entitlement Act 1986 (the Act) relevantly provides as follows:
70 Eligibility for pension under this Part
(1) Where:
(a) the death of a member of the Forces or a member of a Peacekeeping Force was defence-caused; or
(b) a member of the Forces or member of a Peacekeeping Force has become 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 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; …
…
120(B) 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 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.
(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 a 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 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."
The standard of proof in this matter is set out in s 120(4) of the Act, and requires the Tribunal to determine the matter to its reasonable satisfaction, that is on the balance of probabilities.
The Applicant's claim was lodged on 21 October 1998 and, therefore the Tribunal is to determine the matter pursuant to s 120B of that Act.
A relevant Statement of Principle has been issued. This is RMA SoP: Instrument No 22 of 2001.
It is the Applicant's contention that he satisfies Factor 5(a) of Instrument No 22, that is:
" 5(a) for ulcerative colitis only, in a person with a history of a regular smoking habit,
(i) ceasing to smoke within the five years immediately before, and,
(ii) continuing not to smoke for the three months immediately before the clinical onset of inflammatory bowel disease."
APPLICANT'S EVIDENCE
The Applicant confirmed the contents of Exhibits A1 and A2 and said that he was now self employed as a car detailer. He had two periods of eligible defence service in the Australian regular Army- from18 September 1979 to 30 September 1982 and from 1 August 1982 to 1 August 1993. He first joined at the age of 17 and was posted to recruit training at Kapooka where he began to smoke as a result of peer pressure and the perception that smoking would relieve him from time to time from becoming involved in minor tasks during training breaks such as "Emu Bopping" ie; picking up rubbish ,including cigarette butts .It was his reasoning that those who smoked during breaks were not selected for such tasks.
He was posted to 5 Transport Squadron at Brisbane Where he was involved in convoy driving, mainly between Brisbane and Army exercise areas near Rockhampton. He found this a boring duty due to the slow speed of convoy packets and the very hot cabin conditions of the trucks then in army use. He found it difficult to remain alert and awake under these conditions and increased and maintained his consumption of cigarettes to a pack and a half a day, that is between 25 and 35 cigarettes a day.
He acknowledged that halts were made during convoy work of about 10 minutes in every two hours and that this time was taken up in required checks of vehicles and loads as well as meeting the requirements of personal hygiene.
The Applicant stated that he gave up smoking as a result of his daughter becoming seriously ill with cardiomyopathy. Her treatment required the presence of bottled oxygen in the house. The danger of smoking in these circumstances constrained him from smoking and in about mid 1988 he stopped.
On cross-examination the Applicant restated his belief that "Emu Bopping" (more properly Emu Bobbing) was part of the reason for him starting smoking. The Applicant was referred to a Medical attendance and treatment sheet (Ex R1). In this report on his condition diagnosed as possible viral illness and in the brief history taken was a notation "occasional smoker (sic)". The applicant had some difficulty recalling the event but gave it as his opinion that this entry referred to his smoking during the period of his illness. He was then referred to Folio 52 of the T documents. This was part of the documentation on his re-entry to the Army and was a document that he had signed. And it contained a notation that he smoked ten cigarettes a day. The Applicant responded that he could not recall the document but he may well have understated his consumption as he was very anxious to re enlist but that nevertheless he had maintained his usage at a pack to a pack and a half during this period. He was then directed to his smoking Questionnaire (Folios 82/83 of the T documents). Here at Paragraph 5 he states that he has given up smoking permanently after bowel surgery on doctor's advice. The Applicant stated that he had stopped smoking in 1988 as a result of his daughter's illness and that the statement in the questionnaire stemmed from a severe injunction from his surgeon that he was not to smoke again .
OTHER EVIDENCE
Additional evidence was taken as follows:
Mr David Thomas stated that the Applicant had stopped smoking in 1988
Mr Gary Forsythe stated that after serving with the Applicant earlier he had met him again in 1989 at which time the Applicant had stopped smoking.
Mrs Tracy Laurie stated that the Applicant had stopped smoking in 1988 as a result of their daughter's illness. She stated that the Applicant reduced his smoking when at home.
In response to questions from the Tribunal the applicant listed his postings during his two enlistments and noted that as time went on he became more involved in work in the transport offices of his units as well as duty as relief VIP driver in the Brisbane area. He stressed that his habit, which continued until 1988, was entrenched during his earlier service with 5 Tpt Sqn.
The Tribunal finds that the Applicants condition of Ulcerative Colitis was noted in May 1989 following bleeding and pain during the previous 8 months and diagnosed in July 1989. This would indicate an onset in late 1988. He had a total colostomy in February 1991.
The Tribunal finds that the Applicant started smoking in September 1979 soon after he enlisted. His consumption of cigarettes rose up to 25 to 35 a day until mid 1988 when he ceased smoking as a result of his daughter's illness.
SUBMISSIONS
It was submitted for the Applicant that he had smoked, after enlistment, as a result of peer pressure and the conditions under which he worked in his earlier postings. The Tribunal was referred to Repatriation Commission v Tuite (1993) 17 AAR 158 and a recent AAT decision in Re Burrows and Repatriation Commission [2001] AATA 769. It was submitted that a young 17-year-old soldier found within the pressures of a new service life, factors that influenced him to begin smoking and increase his consumption.
Counsel for the Applicant submitted that the aberrations between certain documents and his direct evidence had been dealt with by the evidence of Mr Forsythe, Mr Thomas and the Applicants wife. It was submitted that in relation to the application of the relevant SoP that time and consumption were related and that the variations mentioned did not affect the outcome
The respondent submitted that the considerations in Tuite were different from those in the matter now before the Tribunal. The Respondent submitted that the service of the applicant merely provided the setting in which he began smoking and that the conditions of that service were not sufficient to provide an operative causation and that the connection of smoking with defence service was not strong.
It was also submitted that the documentation showed that the Applicants consumption had varied significantly and that in particular Mrs Laurie had stated that he did not smoke much at home.
CONSIDERATION
The Tribunal has already determined that the Applicant suffers from Ulcerative Colitis with the date of onset in mid 1988 and had surgery for that disease in February 1991.
Whilst closely cross-examined the credit of the Applicant was not called into question. The Tribunal is satisfied that his evidence was frank and truthful and that witnesses on the relevant issue confirmed his evidence.
The Tribunal is satisfied that the Applicant became addicted to cigarette smoking shortly after his enlistment in 1979 and that this addiction continued until mid 1988 when he ceased smoking as a result of his daughter's illness.
Therefore the Tribunal is satisfied that the Applicant satisfies Factor 5 (a) of SoP Instrument No 22 of 2001.
The question is whether the Applicants smoking habit arose out of his defence service.
The Tribunal has canvassed the Authorities to which it was referred, particularly with respect as to whether or not the Applicant's smoking habit arose out of his defence service.
Davies J has set forth the approach to be taken in matters such as this. In Hawkins v Repatriation Commission (1993) 30 ALD 59, Davies J stated:
"A disease will be attributable to eligible service if the services contributed in a material way to its development. When a disease is alleged to be due to camp life, the question would usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred.
Issues of causation must be approached din a factual way in light of commonsense and human experience.
In causation, the issue os whether one event has equivalent relationship with another. It is misleading to speak off the test as objective, for it may well be the serviceman's personal response to an event, which provides the causative element. The question is simply one of fact as to whether one event contributed to another." (pp 62-63)
And further:
"As smoking is addictive, the circumstance in which the habit developed were important."
In Repatriation Commission v Bendy (1989) 18 ALD 144, Davies J, in addressing the question of "materiality" and "contributing cause" said:
"In each case, the reference to materiality serve to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimus, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term immaterial here is used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely of substantial import or much consequence, but rather in its legal sense of pertinent or likely to influence."
In Repatriation Commission v Tuite (1993) 17 AAR 158, Davies J said
"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 vent occurred. Denning J has said that the service must be a cause as distinct from being part of the circumstances in or on which the cause operates."
Davies J went on to say:
"Of course, causation is primarily an issue of fact. If the circumstances of eligible war service provides an operative cause contributing to the serviceman's injury or disease, it matter not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere in camp life. The question in each case, and it is a q1uestion of fact for the administrative decision maker, is whether eligible war service contributed causily to the injury or disease."
With respect the Tribunal adopts the approach set out above.
The Tribunal is mindful that the Applicant was a youth of 17 years of age on joining the Army and that by the end of his first term of enlistment he had a well established smoking habit which continued into his second term until 1988 and was influenced by service related conditions. The Tribunal accepts the submissions for the Applicant in respect of those conditions and influences.
The Tribunal finds that that the Applicant meets the necessary criteria of the relevant SoP and that the condition of Ulcerative Colitis was defence service caused.
The Tribunal sets aside the decision under review and determines that Raymond Bruce Laurie's condition of Ulcerative Colitis was defence service caused.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Brig IRW Brumfield
Signed: .....................................................................................
AssociateDate of Hearing 19 April 2002
Date of Decision 17 May 2002
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan & Luton
Solicitor for the Respondent Mr B Williams
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