McDERMOTT and REPATRIATION COMMISSION
[2011] AATA 714
•14 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 714
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/6040
GENERAL ADMINISTRATIVE DIVISION ) Re THOMAS McDERMOTT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date14 October 2011
PlaceBrisbane (heard in Rockhampton)
Decision The decision under review is affirmed.
..............Signed....................
Deputy President
CATCHWORDS
VETERANS’ ENTITLEMENTS - atherosclerotic peripheral vascular disease (PVD) – whether defence caused disease – inconsistencies in applicant’s evidence – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120, 120B
Repatriation Commission v Smith (1987) 15 FCR 327
Statement of Principles Instrument No 66 of 2002
REASONS FOR DECISION
14 October 2011 Deputy President P E Hack SC Introduction
The applicant, Mr Thomas McDermott, served in the Royal Australian Navy between 1974 and 1996. That service constitutes “defence service” as that expression is used in the Veterans’ Entitlements Act 1986 (Cth) (the VEA).
Mr McDermott suffers from atherosclerotic peripheral vascular disease (PVD). He says that his PVD is a “defence-caused disease”. The respondent, the Repatriation Commission, did not accept the claim for PVD to be treated as a defence-caused disease. The Commission decided on 2 July 2008 that PVD was not related to Mr McDermott’s service. That decision was affirmed by the Veterans’ Review Board on 3 September 2009[1].
[1] Other claims dealt with in the Board’s decision that day are no longer in issue in these proceedings.
Mr McDermott seeks a review of the Commission’s decision.
Legislation
By virtue of s 70 of the VEA the Commonwealth is liable to pay a pension by way of compensation to a member of the Forces who is incapacitated from a defence-caused disease[2]. Subsection 70(5) sets out, at some length, the circumstances under which, relevantly, a disease contracted by a member of the Forces shall be taken to be a defence-caused disease. It is sufficient for present purposes to note some only of those circumstances. Paragraph (a) of that subsection provides that a disease shall be taken to be defence-caused if,
“the…disease…arose out of, or was attributable to, any defence service…of the member”.
Then s 70(7) of the VEA creates a “but for” test of causation in these terms,
“Where, in the opinion of the Commission, the incapacity of a member of the Forces…was due…to a disease that would not have been contracted, but for his…having rendered defence service…or but for changes in the member’s environment consequent upon his…having rendered any such service:
(a)…
(b)…the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.”
[2] It is common ground that Mr McDermott was “a member of the Forces” and that his PVD is a disease as that term is defined in the VEA.
The standard of proof in these matters is “to [the] reasonable satisfaction” of the decision-maker[3] i.e. the civil standard of proof[4]. The manner of application of s 120(4) of the VEA is dealt with by s 120B(3) of the VEA in these terms:
[3] See s 120(4) of the VEA.
[4] Repatriation Commission v Smith (1987) 15 FCR 327.
“In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that…a disease contracted by a person…was…defence-caused only if:
(a)the material before the Commission raises a connection between the…disease…and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) of (12); or
(ii)…
that upholds the contention that the…disease…is, on the balance of probabilities, connected with that service.”
The Repatriation Medical Authority has made a Statement of Principles about atherosclerotic peripheral vascular disease, Instrument No 66 of 2002. Mr McDermott relies upon clause 5(a). It provides,
“The factors that must exist before it can be said that, on the balance of probabilities, atherosclerotic peripheral vascular disease…is connected with the circumstances of a person’s relevant service are:
(a)smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least three years before the clinical onset of atherosclerotic peripheral vascular disease and where smoking has ceased, the clinical onset has occurred within 10 years of cessation;”
Factual background
Mr McDermott was born in June 1955 and joined the Royal Australian Navy in March 1974. He says that he was a non-smoker prior to joining up as does his brother, Mr Stephen McDermott. A statement of Mr Stephen McDermott was relied upon however he was not made available to be cross-examined. When completing the Commission’s “smoking questionnaire” Mr McDermott dated the commencement of his smoking to 20 April 1975, “on board ship” where “access was easy & cheap”. He started, so he said, “to blend in with peers”. The circumstances under which Mr McDermott started smoking are expanded upon by him in a statement dated 24 October 2008 made for the purposes of the hearing in the Veterans’ Review Board and again in his evidence to that Board.
In his October 2008 statement Mr McDermott speaks of the acceptance of a cigarette as being “…part of the camaraderie and peer group pressure at that stage of my life”. Smoking, he says, was “very prevalent” in the Navy where cigarettes were quite inexpensive compared to the price in civilian life. Non-smokers were in the minority in the Navy. Mr McDermott says that he was soon smoking a packet of cigarettes a day. Smoking, he says, became a “normal part” of his life in the Navy and a “normal activity” in his early years of service.
Mr McDermott ceased smoking, he says, in mid-2008 and has not since smoked. It is common ground that Mr McDermott was diagnosed with PVD in October 2007. He lodged his claim for acceptance of PVD the following month.
Consideration
There are two aspects of the Commission’s case. First it submits that Mr McDermott’s evidence of his smoking history cannot be relied upon; it is inconsistent with contemporaneous evidence and is an evident reconstruction. And it says that, in any event, the connection between Mr McDermott’s smoking and his service was temporal only and not causal, that is, service was merely the setting in which he commenced to smoke cigarettes, nothing in his service required or expected him to commence smoking.
At the outset I note that Mr McDermott was smoking at least five cigarettes per day for at least three years before the clinical onset of PVD in late 2007. That aspect of the Statement of Principles is satisfied.
The question is whether Mr McDermott’s smoking habit was related to his service in the Navy. In my view both aspects of the Commission’s argument must be accepted and the decision affirmed.
I have considerable reason to doubt the reliability of Mr McDermott’s evidence about his smoking history. The key elements of Mr McDermott’s case are that he started smoking when in the Navy, that that was a short time prior to Anzac Day 1975 and that he continued smoking until mid-2008 except for some short periods of one to two months. There is reason to doubt each of these assertions.
The “smoking questionnaire” was not the first occasion upon which Mr McDermott was called upon to recount that smoking history. In March 1982, whilst he was serving in the Navy, he provided a history to a medical practitioner in connection with a right knee injury, sustained playing football. The clinical notes[5] record, relevantly,
“Smoking – cigarettes 20/day
Started again this year. Nil for previous 4 years. Started orig.at 16. Off & on smoker.”
While the author of the notes was not called to give evidence I have no reason to doubt that the notes accurately record a history given by Mr McDermott. Two matters in the history are inconsistent with Mr McDermott’s present account of his smoking history – the age of commencement and the fact of having ceased for four years and recommenced “this year” i.e. 1982. Mr McDermott was questioned about these matters in cross-examination but was unable to explain the apparent discrepancy. Subsequently, in the course of his final submissions, and when recalled to give further evidence, he suggested that he must have said that he had given up for four months, not four years. He suggested that that was consistent with his earlier account[6] of having attempted to give up. That suggested that he had stopped smoking in June 1981 and recommenced in August 1981. That account was not consistent with Mr McDermott’s suggested, and obviously reconstructed, account of what he told the doctor in March 1982. Moreover the notion of starting smoking at the age of 16 is also distinctly at odds with Mr McDermott’s present claim which is that he commenced smoking in the Navy at the age of almost 20. It is not explained away, as Mr McDermott sought to do, by reference to childhood experiments with smoking; the note is consistent only with the commencement of a smoking habit at that age.
[5] Exhibit 4.
[6] Exhibit 1, page 110.
But these are not the only inconsistencies in the material. As I have said, Mr McDermott gave 20 April 1975 as the date of commencing smoking on the Commission’s smoking questionnaire. He gave such a precise date, he said, because the lay advocate assisting him to complete the document said that a precise date was necessary however he explained in the hearing before me, in both his oral and written evidence[7], that it was “around Anzac day” 1975 that he started smoking. It was when he was at sea and the occasion for commencing smoking was a “major firing” of the vessel’s guns. But that account is quite different to that given by Mr McDermott to the Veterans’ Review Board in September 2009. When he gave evidence in those proceedings he gave clear and unequivocal evidence that he had started smoking on Anzac Day 1975[8]. He even linked the commencement of smoking with the drinking and the celebration of that day.
[7] See exhibit 3.
[8] Exhibit 5, pages 6-7 & 10.
Then there is the question of Mr McDermott’s account of what caused him to start smoking. In the smoking questionnaire and in his October 2008 statement he attributed the commencement of smoking to “peer group pressure”. When questioned about these matters in the hearing at the Board[9] he appeared to attribute smoking, at least in part, to boredom. There was certainly no reference by him to stressful events beyond the stress of finding that a person under his command did not know the job the person was required to do[10]. In his first statement prepared for the purposes of these proceedings[11] Mr McDermott raised, for the first time so far as I can see, the notion that his smoking was connected to the dangers of his role in fire control. That assertion bears the hallmark of recent invention.
[9] Exhibit 5, page 10.
[10] Exhibit 5, pages 11-12.
[11] Exhibit 2.
I am then left in the position where Mr McDermott’s account has changed over time and where the account most proximate in time to the events in question is inconsistent with the notion that Mr McDermott started smoking whilst in the Navy. I am not satisfied that I am able to rely on Mr McDermott’s evidence about the history of his smoking. In coming to this conclusion I have not overlooked the fact that Mr McDermott has statements from his brother and from a supervisor during his recruit training that speak to his not smoking. Neither person was available for cross-examination. More importantly, the evidence they give is inconsistent with the account that I accept that Mr McDermott gave in 1982, considerably closer in time to the events in question.
But even were I to have accepted that evidence I would not have been able to conclude that Mr McDermott’s smoking arose out of, or was attributable to, his service. It will suffice to say that he was neither required nor expected to smoke. Service in the Navy provided no more than the setting in which Mr McDermott smoked, it did not cause it.
The decision under review will be affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ............Signed..............................................................
AssociateDate of Hearing 4 October 2011
Date of Decision 14 October 2011
Applicant Unrepresented
Counsel for the Respondent Mr GL Purcell
Solicitor for the Respondent Department of Veterans’ Affairs
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