Lillian Oliver and Repatriation Commission

Case [2013] AATA 525

[2013] AATA 525

Division Veterans' Appeals Division

File Number

2012/5375

Re

Lillian Oliver

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President S D Hotop
Date 25 July 2013
Place Perth

The decision under review is set aside and, in substitution therefor, it is decided that the death of the veteran, Leslie Richard Oliver, on 1 January 1980 was “war-caused”, within the meaning of s 8(1) of the Veterans' Entitlements Act 1986 (Cth), and that the applicant is eligible for a pension under Part II of that Act, with effect from 11 July 2010.

....................[sgd]....................................................

S D Hotop

Deputy President

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – veteran served in Royal Australian Navy from 1952 to 1958 – veteran rendered eligible war service (being operational service) from March to November 1953 – veteran experienced passive smoking throughout operational service and subsequently in civilian life from 1963 to 1979 – veteran contracted ischaemic heart disease in 1976 – veteran died from ischaemic heart disease in 1980 – applicant claimed pension as widow of veteran in October 2010 on basis that veteran’s death war-caused – reasonable hypothesis that veteran's death related to operational service – reasonable hypothesis not disproved beyond reasonable doubt – veteran's death war-caused – decision under review set aside

LEGISLATION

Veterans' Entitlements Act 1986 (Cth), s 7(1), s 8(1), s 13(1), s 120, s 120A, s 196A and s 196B

Statement of Principles concerning ischaemic heart disease No 89 of 2007 (as amended by No 43 of 2009, No 96 of 2010, and No 125 of 2011)

CASES

Byrnes v Repatriation Commission (1993) 177 CLR 564

Gilkinson v Repatriation Commission (2011) 197 FCR 102
Knight v Repatriation Commission (2010) 52 AAR 547
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Knight (2012) 202 FCR 451
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

Deputy President S D Hotop

25 July 2013

Introduction

  1. Lillian Oliver (“the applicant”) is the widow of Leslie Richard Oliver (“the veteran”) who died on 1 January 1980 at the age of 45 years from causes certified as “coronary occlusion, coronary atherosclerosis, hypertension”.

  2. The veteran had served in the Royal Australian Navy (“RAN”) from 4 May 1952 to 3 May 1958 in the course of which he rendered “operational service”, within the meaning of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), having been allotted for duty in an “operational area” (namely, Korean waters) on board HMAS Culgoa, from 14 March 1953 to 27 November 1953.

  3. On 11 October 2010 the applicant lodged with the Department of Veterans’ Affairs a claim for a pension, dated 30 September 2010, on the basis that the veteran’s death was “war-caused” within the meaning of s 8 of the VE Act.

  4. On 4 December 2010 a delegate of the Repatriation Commission (“the respondent”) decided that the death of the veteran “is not related to service, and that a war widow’s pension is therefore not payable”.

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Details
AGLC
Lillian Oliver and Repatriation Commission [2013] AATA 525
Case
[2013] AATA 525
Decision Date

CaseChat Overview and Summary

In the case of Lillian Oliver and the Repatriation Commission, the applicant sought a review of the Veterans' Review Board's decision, which denied the eligibility of the veteran for a pension under the Veterans' Entitlements Act 1986 (Cth). The dispute primarily revolved around whether the veteran's death from ischaemic heart disease was war-caused, given his exposure to passive smoking during his service on HMAS CULGOA. The Administrative Appeals Tribunal was tasked with determining this matter.

The legal issues before the Tribunal included whether the veteran's exposure to passive smoking during his service could be considered a contributing factor to his ischaemic heart disease, and if so, whether this exposure was sufficiently related to his operational service to be deemed war-caused under the Act. The Tribunal also had to consider the relevance of the Statement of Principles concerning ischaemic heart disease, specifically whether the veteran's exposure to passive smoking met the criteria outlined in the Statement.

The Tribunal's reasoning was grounded in the evidence provided, which included medical reports and expert testimonies detailing the veteran's exposure to passive smoking during his service. The Tribunal concluded that the veteran's exposure to passive smoking, which met the criteria set out in the Statement of Principles, could reasonably be connected to his ischaemic heart disease. This connection was sufficient to establish that his death was war-caused, thereby making the applicant eligible for a pension under the Act. The Tribunal relied on the approach prescribed by the Full Court of the Federal Court in Repatriation Commission v Deledio, confirming that the evidence did raise a hypothesis linking the veteran's death to his operational service.

The outcome of the case was that the Tribunal set aside the Veterans' Review Board's decision and ruled that the veteran's death on 1 January 1980 was indeed war-caused, with the effect from 11 July 2010. The applicant was found eligible for a pension under the Veterans' Entitlements Act, marking a significant change in the legal standing for the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 28 November 2012 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 10 September 2012.The Evidence The evidence before the Tribunal comprised the “T Documents” (T1–T12, pp I–XV; 1–113) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).Relevant Material Included in the T Documents A report of Dr Neil Same, dated 27 September 1991, stated that (inter alia):·the veteran had first consulted him in 1966 and continued to attend upon him until 1979;·the veteran complained of “L chest pain” in 1976 and “chest pain” in 1978;·an ECG in 1976 showed “early coronary ischaemia” and an ECG in 1979 showed “increasing coronary ischaemia”. (T5, p 24) On 14 October 1991 a Departmental Medical Officer recorded as follows:“ This 45 year old veteran died on 1.1.80 of Ischaemic Heart Disease.…” (T6, p 28) In a report dated 14 September 1992 Dr Winstone Berry, Consultant Physician, stated that the veteran “died suddenly in 1980 from an acute myocardial infarction due to coronary artery disease”. (T7) Following a letter from the Registry of the VRB, dated 25 June 2012, to the applicant’s representative requesting that evidence be obtained “from ex-Navy personnel regarding the conditions on ships and the likelihood that Mr Oliver was exposed to the required amount of passive smoking on HMAS CULGOA …” (T12, p 108), the following letter from R B Mummery, Commander RANR (Rtd), dated 5 July 2012, was provided:“ In response to your request via Legacy Admin Assistant … wrt Leslie Richard Oliver and his probable exposure to passive smoking I submit the following:From my experience of having served in 1997 & 1998 as the Marine Engineer Officer of HMAS DIAMANTINA, a sister ship to HMAS CULGOA, and from a short period in 1963 living on board HMAS CULGOA when the ship was located at HMAS WATERHEN in Waverton, New South Wales as an accommodation vessel, I am able to offer some further insight to [sic] the conditions that Mr Oliver would have experienced whilst living and working aboard HMAS CULGOA.The messing (accommodation and meals) arrangement in that class of ship was austere and in keeping with World War II’s hastily constructed ships. As such Mr Oliver would have been accommodated in a mess deck possibly one deck below the main deck, alternatively in a wing mess adjacent to the engine room. In any case, the mess decks were not air-conditioned and, in all but the most friendly of sea ways, the ventilation was poor particularly against the standards of today. Mr Oliver’s working environment was in areas that were hot, confined and generally also poorly ventilated. Cigarettes and tobacco products were sold from the ship’s canteen on board at duty free prices and the majority of the ship’s company would have been relatively heavy smokers as is evidenced by movies of the era, the number of smoking related diseases and illnesses recorded in the post war period up to and including today. Similarly the canteen records of tobacco products sold would also indicate a high usage rate of those products. The only restrictions on smoking in the ship applied to certain areas and then only when refuelling or ammunitioning procedures were being undertaken.Smoking in the mess deck areas was accepted as part of a sailor’s recreation rights and activities and so smoking would be undertaken at all hours by those sailors having time off in between watch-keeping duties. Even during the silent hours of 2200 through to 0630 some sailors would have been smoking as they were being called for their turn to go on watch or in fact prior to turning in (going to bed) having been relieved from watch. These times were generally around midnight and 0400 in the morning. Little regard was given to those who did not smoke. Hammocks were the form of bedding used in these ships and whilst smoking in a hammock was discouraged some individuals ignored that advice. The hammock arrangements were such that the hammocks were slung in such a manner that when the occupants of the hammocks were in fact in them they would touch, ie be in actual contact with the adjacent hammocks. Mess decks were crowded by today’s standards.Smoking in the work place was not forbidden and men smoked openly on the job unless refuelling or ammunitioning procedures dictated otherwise, and these situations were relatively rare happening mainly on a day in port.As can be deduced from the foregoing paragraphs, it can be seen that Mr Oliver was continually exposed to passive smoking. Even when there were no cigarettes or other tobacco products burning the smell of dirty and smouldering ashtrays and the cloying remnants of smoke in clothing, bedding and general fabrics used in the mess deck would remain very noticeable. I am able to personally verify this from my own time as a non-smoker living in a sailor’s mess deck as I was a sailor for eleven years before becoming an officer, and even as an officer I was often exposed to passive smoking.During Mr Oliver’s service on HMAS CULGOA he would have had many hours exposed to passive smoking. In order of hours exposed, it is difficult to quantify however, as a rule of thumb, it is approximately 1,000 hours that equates to 42 days. If an assumption that approximately 5 hours per day in which Mr Oliver was not subject to passive smoking, say during the silent hours, then Mr Oliver would have been exposed to passive smoking of 1,000 hours every 50 days or so.In conclusion I can say that life aboard HMAS CULGOA, and any other ship of WWII vintage, was not an easy one; mess decks were crowded, heavy smoking by ships’ companies was recognised, tobacco products were sold at duty free prices from the ship’s canteen, ventilation in mess decks was poor, working areas were hot, confined and often poorly ventilated and there were few restrictions on smoking within the ship, then it is true to say that Mr Oliver was regularly exposed to passive smoking.…” (T12, pp 110–111)

Decision

Reasons for decision

It is common ground, and the Tribunal accepts, that the appropriate date of effect of its determination that the veteran’s death was war-caused is 11 July 2010.Decision For the above reasons, the decision under review is set aside and, in substitution therefor, it is decided that the death of the veteran on 1 January 1980 was “war-caused”, within the meaning of s 8(1) of the VE Act, and that the applicant is eligible for a pension under Part II of that Act, with effect from 11 July 2010.

Ratio Decidendi

Legal Principle Established

For the purpose of determining whether the veteran’s death was “war-caused”, within the meaning of s 8(1) of the VE Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.Does the material before the Tribunal raise a hypothesis connecting the death of the veteran with the circumstances of his operational service? The Tribunal, having considered the whole of the material before it, is of the opinion that the material before it does raise a hypothesis connecting the veteran’s death with the circumstances of his operational service. That hypothesis, in general terms, is that the veteran was present in enclosed spaces where there was a visible tobacco smoke haze throughout his operational service and subsequently in civilian life and that the “passive smoking”, to which he was exposed in those circumstances, contributed substantially to his contracting ischaemic heart disease from which he subsequently died.The Statement of Principles The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, Statement of Principles concerning ischaemic heart disease No 89 of 2007 (as amended by No 43 of 2009, No 96 of 2010, and No 125 of 2011) (“the SoP”). The SoP relevantly states as follows:“…Kind of injury, disease or death3(a) Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.(b)For the purposes of this Statement of Principles, ‘ischaemic heart disease’ means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.…Basis for determining the factors4The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).Factors that must be related to service5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.Factors6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service is:…(i)being in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease, where the last exposure to that atmosphere did not occur more than five years before the clinical onset of ischaemic heart disease; or…Other definitions9. For the purposes of this Statement of Principles:…‘death from ischaemic heart disease’ in relation to a person includes death from a terminal event or condition that was contributed to by the person’s ischaemic heart disease;…‘relevant service’ means:(a) operational service under the VEA; (b) peacekeeping service under the VEA; (c) hazardous service under the VEA; (d) warlike service under the MRCA; or(e) non-warlike service under the MRCA;‘terminal event’ means the proximate or ultimate cause of death and includes:(a) pneumonia;(b) respiratory failure;(c) cardiac arrest;(d) circulatory failure; or(e) cessation of brain function.Application10.This Instrument applies to all matters to which section 120A of the VEA or section 338 of the MRCA applies.”Does the material before the Tribunal raise a reasonable hypothesis connecting the death of the veteran with the circumstances of his operational service?