LILY HOLME and REPATRIATION COMMISSION
[2006] AATA 552
•26 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AAT 552
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/73
VETERANS' APPEALS DIVISION )
Re LILY HOLME Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date 26 June 2006
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision that the veteran’s death was war-caused and that Mrs Holmes is entitled to receive a pension under the Veterans’ Entitlements Act 1986 from and including 9 March 2004. ....................[Sgd]..................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – operational service with Royal Australian Navy - death from ischaemic heart disease – application of Statements of Principles - reasonable hypothesis of relevant relationship to eligible war service – smoking causally associated with war service - death war-caused
Administrative Appeals Tribunal Act 1975 ss 34B, 37
Veterans’ Entitlements Act 1986 ss 6A, 7, 8, 11, 14, 119(1)(f), 119(1)(h), 120(1), 120(3), 120(4), 120A, 177
Repatriation Commission v Hancock [2003] FCA 711
Fogarty v Repatriation Commission (2003) AAR 363
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Smith (1987) 15 FLR 327
Repatriation Commission v Deledio (1998) 83 FCR 82REASONS FOR DECISION
26 June 2006 Mr RG Kenny, Member Background
1. William Holme (the veteran) served in the Royal Australian Navy (RAN) during World War II from 18 June 1941 until 4 February 1946. That service constitutes eligible war service in the form of operational service in accordance with sections 7 and 6A, respectively, of the Veterans’ Entitlements Act 1986 (the Act). Mr Holme died on 2 October 1973 at the age of 64 years and, on 9 June 2004, Lily Holme, his widow and dependant, as defined in section 11 of the Act, lodged a claim, under section 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with section 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 30 September 2004 and, in turn, by the Veterans’ Review Board (the Board) on 1 November 2005. On 2 February 2006, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. At the hearing, Mrs Holme was represented by Mr P Harding of counsel. The respondent was represented by Mr Kelly.
3. Material available to the Tribunal included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
Issues and Legislation
4. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in section 8 of the Act must be met. Relevant in this matter is paragraph 8(1)(b) of the Act which reads:
“(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) …..
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;”
5. Where, as in this case, the veteran rendered eligible war service in the form of operational service, the standard of proof applicable to the determination is set out in subsection 120(1) of the Act which reads:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
6. The application of that provision is affected by the terms of subsection 120(3) and section 120A of the Act. Those provisions read:
“120 (3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
“120A Reasonableness of hypothesis to be assessed 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 operational service rendered by a veteran;
(b) …
(2) …
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2); that upholds the hypothesis.
(4) ………..”
7. The provisions noted above relate to matters of causation and require a consideration of the Statements of Principles which have been published by the Repatriation Medical Authority (RMA). However, before applying the provisions of the Act relating to causation, it is necessary to determine the “kind of death”, as that term appears in subsection 120A(1) of the Act, applicable to the veteran: see Repatriation Commission v Hancock [2003] FCA 711. Such matters are to be determined in accordance with the terms of subsection 120(4) of the Act: see Fogarty v Repatriation Commission (2003) AAR 363 at 373 and Benjamin v Repatriation Commission (2001) 70 ALD 622 at (634). Thus, the “kind of death” must be determined to the decision maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
Cause of Death
8. The veteran’s death certificate declared the cause of death and respective duration of conditions in the following way:
(a) myocardial infarct (minutes)
(b) coronary artery disease (years)
(c) hypertension (years).
9. It is common ground and I am satisfied in this matter that the “kind of death” in Mr Holme’s case was that associated with ischaemic heart disease.
Relationship to Service
10. The procedure to be adopted in determining whether or not a particular condition, ischaemic heart disease, which caused death arose out of, or was attributable to, any eligible war service that Mr Holme rendered was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 92 in the following terms:
"1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the `template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be `reasonable' and the claim will fail.
4. The tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (Emphasis added)
11. The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. Mr Harding submitted that Mr Holme’s ischaemic heart disease developed because of a service-related cigarette smoking habit. I accept that this constitutes an hypothesis of a connection to service.
12. The second step requires identification of the relevant RMA Statement of Principles. For ischaemic heart disease, this is Instrument No. 53 of 2003 as amended by Instrument No. 9 of 2004.
13. The third step requires consideration of whether the hypothesis raised is a reasonable one. This requirement will be met if an hypothesis fits the template provided by a relevant factor and associated definition in the Statement of Principles. These read:
(f) where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i) smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii) smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease;
“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 7 300 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 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
14. If the hypotheses under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps. This will require a finding that the relevant condition and consequential death are war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Reasonableness of the Hypothesis
15. Mrs Holme gave evidence that the veteran was a heavy smoker and explained that he was more often smoking than not doing so. She said that this continued until his death although there were times that he unsuccessfully attempted to cease the habit. She recalled his telling her that he commenced during his time in the navy to help him relax and, though he did not discuss his service years very much, he disclosed to her that there were times when the vessels he served on were fired upon by the enemy and other times when the vessels were required to traverse crocodile infested waters.
16. That evidence of Mrs Holme is consistent with the template of each part of factor (f) in the Statement of Principles and, accordingly, it raises a reasonable hypothesis of a causal relationship between Mr Holme’s death and his service per medium of smoking.
Is Death War-caused?
17. This requires a consideration of the fourth of the Deledio steps and death will be war-caused unless I am satisfied beyond reasonable doubt that such is not the case.
18. Mrs Holme signed two questionnaires in relation to the veteran’s smoking habits. They were completed in 1992 and 2006. In each case, she was assisted by a person from Brisbane Legacy who asked a series of questions which appeared on the questionnaires and her responses were noted. The first of those records that Mrs Holme met her husband in 1969; that they were married on 16 October 1970; that she did not know whether or not he smoked before enlistment or how many cigarettes he smoked per day; and that there was a period when he ceased smoking. The second questionnaire records that they met in 1965; that the marriage took place on 16 March 1970; that Mr Holme began to smoke during the war; that he took up smoking because it helped him to relax and because all his mates smoked at that time; that he was a heavy smoker; and that he did not cease smoking.
19. Mrs Holme noted that there were errors in each of the questionnaires. The first incorrectly recorded the date of marriage and the second wrongly recorded the year that she and Mr Holme first met. Nevertheless, there are other significant discrepancies in those documents concerning Mrs Holme’s awareness of the veteran’s smoking habit. In explanation, Mrs Holme said that she recalled conversations with her husband in the years after she responded in the first questionnaire and that the history of smoking was correctly given in the second questionnaire. She said that Mr Holme had told her that he was in the merchant navy before he enlisted in the RAN but that she always understood his reference to first smoking in the navy to be a reference to the RAN rather than the merchant navy. She said that this was because of his reference to being shot at, traversing crocodile infested waters and needing to relax in the company of fellow seamen.
20. While there are discrepancies in the content of the two questionnaires, I note that this is the first occasion that Mrs Holme has given her evidence orally and upon oath. She did this in a forthright but not forceful way and in a manner which did not suggest that she was being anything but truthful and reliable. I am satisfied that Mrs Holme was a witness of truth. There are no independent witnesses available in this matter but I note the terms of paragraph 119(1)(h) of the Act which provides that account is to be taken of any difficulties that lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time on, for example, the availability of witnesses. It is also the case that, pursuant to paragraph 120(6)(a) of the Act, no onus of proof is borne by Mrs Holme in these proceedings and that, pursuant to paragraph 119(1)(f) of the Act, rules of evidence are not binding and the Tribunal may be informed on any matter in such manner as thought just. As noted above, I accept that, in her evidence, Mrs Holmes gave a truthful account of her recollections of the veteran’s smoking habit. I am satisfied that his smoking habit was both temporally and causally related to his eligible war service through peer pressure as well as the stressful aspects of serving on a vessel which was subjected to enemy fire and which traversed crocodile infested waters. It is not disputed that this smoking habit contributed to the development of ischaemic heart disease or that this condition was the underlying cause of death in the veteran’s case. This means that I am not satisfied beyond reasonable doubt that his death was not war-caused in accordance with terms of section 8 of the Act.
21. Mrs Holme’s initial claim was made on 9 June 2004. In accordance with section 177 of the Act, pension is payable to her from and including a date 3 months prior to that date of claim.
Decision
22. The Tribunal sets aside the decision under review and substitutes its decision that the veteran’s death was war-caused and that Mrs Holmes is entitled to receive a pension under the Act from and including 9 March 2004.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed:
J Mills, Legal Research Officer
Date of Hearing 16 June 2006
Date of Decision 26 June 2006Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Woods Prince Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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