Lin Yin Mossman and Repatriation Commission

[2015] AATA 346

[2015] AATA  346

Division	VETERANS' APPEALS DIVISION
File Number	2014/3348
Re	Lin Yin Mossman
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President I R Molloy
Date	21 May 2015
Place	Brisbane

The decision under review is set aside and in substitution there is a finding that Barry Mossman's death on 19 September 1993 was war-caused.  The date of effect is 22 April 2013.

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Deputy President I R Molloy

CATCHWORDS

VETERANS’ AFFAIRS - War widow's pension – Whether death war-caused – Whether tobacco consumption related to service – Reasonable hypothesis connecting death with service –- Hypothesis considered reasonable -  Ischaemic heart disease – Decision set aside and substituted

LEGISLATION

Veterans’ Entitlements Act1986 (Cth)
Statement of Principles concerning Ischaemic Heart Disease, No. 89 of 2007

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Cornelius [2002] FCA 750
Kaluza v Repatriation Commission (2011) 280 ALR 621
Kattenberg v Repatriation Commission (2002) 73 ALD 365

REASONS FOR DECISION

Deputy President I R Molloy

21 May 2015

1. This is an application by Lin Yin Mossman for review of a decision of the Repatriation Commission (“the Commission”) dated 28 August 2013, affirmed by the Veterans’ Review Board on 6 June 2014.

2. The decision was to reject Mrs Mossman’s claim that the death of her husband, Barry Mossman (“the veteran”), who died on 19 September 1993, aged 51 years, was war-caused within the meaning of s 8 of the Veterans’ Entitlements Act1986 (Cth) (“the Act”).

3. It is not disputed that the deceased was a veteran and that he rendered service in the Australian Army from 24 May 1960 to 1 June 1980, including operational service in Malaya and Borneo from 9 April 1963 to 18 July 1965, and in Vietnam from 7 May 1970 to 5 May 1971.

4. The claim is that the veteran’s death was a result of a smoking habit attributable to his service in Vietnam. The claim is that the veteran’s cigarette consumption escalated significantly during his time in Vietnam and remained at that level for the rest of his life.

5. Evidence was given by Mrs Mossman and the deceased’s son, David Charles Mossman, both of whom were cross-examined. Evidence by way of a written report, dated 26 January 2015, was provided by a consultant historian, Dr Albert Palazzo.[1]

   1 Exhibit 4.

   BACKGROUND

6. Mrs Mossman said she met the veteran in 1963 or 1964 in Malacca where she was working in a bank. They married on 17 April 1965.

7. In 1966 the veteran was transferred to Sydney, and they lived at Holdsworthy. The veteran was transferred back to Malaysia and then back to Australia, this time to Melbourne.

8. There was evidence from Mrs Mossman that when she met the veteran he smoked no more than one or two cigarettes a day. She said he drank beer at the Sergeants’ Mess every week.

9. She said she hated his smoking, and also his drinking, and made her feelings known. In oral evidence Mrs Mossman said that in the five to six months before the veteran went to Vietnam he gave up smoking.

10. Mrs Mossman said that on his return from Vietnam her husband was smoking, and drinking, in excess of what she had previously known. In particular, his consumption of cigarettes was between two and four packets a day.

11. She said that if, when she had met him, the veteran had been smoking and drinking as heavily as when he returned from Vietnam, she would never have married him.

12. She also said that on his return from Vietnam he was very quiet. He did not talk about Vietnam and did not like her asking about it.

13. Mrs Mossman said they would argue over how much he drank and smoked after his return from Vietnam. She said she did not know exactly how much the veteran was drinking. He did most of his drinking at the Sergeants’ Mess.

14. Mrs Mossman said that the veteran stopped drinking when he left the Army. However he remained a heavy smoker for the rest of his life. 

15. David Mossman was 24 years of age and living at home when his father died in 1993. The family lived in Brisbane where in civilian life the veteran had a milk run and subsequently a juice run.

16. David Mossman, who was not himself a smoker, estimated his father smoked a pack to a pack and a half of cigarettes every day. He said:

    I remember going on juice runs with [him] and he would consistently smoke on these occasions. He never tried to give up smoking. It was a constant habit with him.

    …

    My father told me that smoking was the only [way] he could settle his nerves when he was in the jungles of Vietnam. He would describe how difficult it was to fall asleep in the jungle because you never knew what might happen.

17. In his report Dr Pallazo, referring to the veteran’s service in Vietnam, offered the opinion that the veteran:

    did what gunners do, support friendly troops and kill enemy troops with artillery fire. During these operations, he worked in physically exhausting environments while enduring the realities of war that all soldiers face. [2]

    2 Exhibit 4, folio 7.

    STATUTORY PROVISIONS

18. Section 13(1) of the Act renders the Commonwealth liable to pay pensions by way of compensation to the dependants of a veteran where the death of the veteran was war-caused.

19. Section 8 of the Act sets out the circumstances in which the death of a veteran shall be taken to be war-caused. The circumstances include if the death of the veteran was due to a disease that would not have been contracted but for his or her having rendered eligible war service.

20. The standard of proof to be applied to the question whether the death of a veteran is war-caused is set out in s 120 of the Act. Where a claim relates to operational service, the standard of proof is prescribed by ss 120(1) and (3) of the Act.

21. In Repatriation Commission v Deledio[3] (“Deledio”) the Full Court of the Federal Court described the four steps to be taken in applying those subsections.

    3Repatriation Commission v Deledio (1998) 83 FCR 82.

    MEDICAL CAUSE OF DEATH

22. However before addressing those steps it is necessary to make a finding as to the medical cause of death. The standard of proof on this issue is reasonable satisfaction.[4]

    4 Repatriation Commission v Cooke (1998) 90 FCR 307, 310.

23. I am reasonably satisfied based on the death certificate,[5] and it is not in dispute, that the veteran died from coronary atherosclerosis.[6] 

    5 Exhibit 1, folio 26.

    [6] Repatriation Commission v Cooke (1998)90 FCR 307, 310.

    Step 1

24. The first step then in Deledio is to consider whether the material points to a hypothesis establishing a causal link between the veteran’s service and his death. The Commission accepts and I find that such a hypothesis arises.

25. The hypothesis is that as a consequence of his experiences serving in Vietnam the veteran significantly increased his smoking habit which was causative in developing the disease from which he died.

    Step 2

26. As to the second step, there is a relevant Statement of Principles (“SoP”) made under s 196B(2) of the Act. It is Instrument No 89 of 2007 (as amended) concerning ischaemic heart disease and death from ischaemic heart disease.[7]

    [7] Clause 3(a).

27. Under the SoP, clause 3(b), “ischaemic heart disease” is defined as including cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis.

    Step 3

28. The third step in Deledio is to determine whether the hypothesis is reasonable.  This step does not involve any findings of fact, only a determination whether the hypothesis is a reasonable one in the sense that it is consistent with the “template” found in the SoP.

29. To be reasonable the hypothesis must contain one or more of the factors set out in the SoP, and be related to the relevant service. The factors, in clause 6 of the SoP, include: 

    (h)       where smoking has not ceased prior to the clinical onset of  ischaemic heart disease:

    smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or

    smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease.

30. Clause 9 of the SoP includes the following definition:

    “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 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination.

31. There is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.[8]

    [8] Repatriation Commission v Cornelius [2002] FCA 750, [26]; Kaluza v Repatriation Commission (2011) 280 ALR 621, [51] – [56].

32. Coronary atherosclerosis is recorded as the cause of death following a post mortem. There is no other medical or other evidence as to its onset or duration, and “Duration of last illness” in the death certificate has been left blank.

33. Section 196B(14) of the Act sets out the circumstances in which a factor causing or contributing to an injury, disease or death is “related to service”. It is not a requirement that smoking of the quantity of cigarettes referred to be wholly attributable to the relevant service.

34. Smoking of the requisite number of cigarettes will be related to the relevant service rendered by the veteran if the smoking of that quantity of cigarettes arose out of or was attributable to that service, was contributed to in a material degree, or was aggravated by the service, or if it would not have occurred but for the rendering of the service.[9] 

    [9] Kattenberg v Repatriation Commission [2002] 73 ALD 365, [42] – [44].

35. I find that the hypothesis raised is a reasonable one in that it contains one of the minimum factors in the SoP related to the relevant service.

    Step four

36. It is then necessary, as the fourth step in Deledio, to consider whether, under s 120(1) of the Act, I am satisfied beyond reasonable doubt that the veteran’s death was not war-caused. If I am not so satisfied then the claim must succeed.

37. The Commission referred to apparent inconsistencies in respect of Mrs Mossman’s evidence and also questioned her direct knowledge of the veteran’s smoking habit prior to his service in Vietnam.

38. One inconsistency, the Commission argued, relates to a smoking history report completed by Mrs Mossman on 23 February 1996. In that report she listed the veteran as smoking about 2 to 4 packets per day and 6 ozs of Drum per week when he first joined the armed services in approximately 1960.[10]

    [10] Exhibit 1, folio 32.

39. In the same report Mrs Mossman referred to a change in the veteran’s smoking habit. She said that there was a change on his return from Vietnam, which she described as “increased generally”, and gave as the reason “he was tension, nervy, an outlet to calm him down (sic)”.[11]

    [11] Exhibit 1, folio 33.

40. However, considering the way in which the relevant questions in the 1996 report were framed, Mrs Mossman’s answers overall, and the fact that she did not know the veteran in 1960, it is quite likely that when she listed the veteran’s consumption of tobacco she was intending to refer to the time after his consumption had increased and not to when he first joined the army. 

41. It was also pointed out by the Commission that Mrs Mossman provided a statement on smoking, dated 15 May 2013, in which she said “My husband started to smoke in the Army and became a very heavy smoker and died from a smoking disease”.[12] However there is no clear inconsistency between this and her evidence before the Tribunal.

    [12] Exhibit 1, folio 42.

42. It was also submitted that Mrs Mossman was not able to report accurately on the veteran’s smoking habits before he went to Vietnam because of his absences while serving elsewhere overseas, or because he was often away on exercises. It was also pointed out that Mrs Mossman would not know how much the veteran smoked at the Sergeants’ Mess. 

43. The Commission also pointed to the difference between Mrs Mossman’s and David Mossman’s estimates of the number of packs the veteran smoked per day.

44. As to Dr Pallazo it was pointed out that his report was not specific to the veteran or to any event in which the veteran was involved.

45. The Commission’s arguments are not without merit, but the question remains whether I am satisfied beyond reasonable doubt that the veteran’s death was not war-caused.

46. I am not so satisfied and consequently the claim must succeed.

    CONCLUSION

47. The decision under review is set aside and in substitution there is a finding that Barry Mossman’s death on 19 September 1993 was war-caused. The date of effect of this decision is 22 April 2013.[13]

    [13] s 20(1) Veterans’ Entitlements Act 1986 (Cth).

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

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Associate

Dated 21 May 2015

Date(s) of hearing	10 April 2015
Counsel for the Applicant	Mr A Harding
Solicitors for the Applicant	Terence O'Connor Solicitor
Advocate for the Respondent	Mr B Williams, Department of Veterans' Affairs