McDERMOTT and REPATRIATION COMMISSION - [2011] AATA 714

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] AATA 714
Decision Date: 14 October 2011

CaseChat Overview and Summary

The case involved Mr McDermott, who claimed that his atherosclerotic peripheral vascular disease (PVD) was caused by his service in the Navy. The Repatriation Commission reviewed his claim and decided to reject it. Mr McDermott appealed this decision. The central issue before the court was whether Mr McDermott's smoking habit, which he claimed began during his service and continued until mid-2008, was related to his service in the Navy. The court examined Mr McDermott's evidence concerning his smoking history, particularly his assertions about when he started smoking and periods when he quit, and found them to be inconsistent with earlier accounts and evidence. Specifically, the court noted discrepancies between Mr McDermott's current account of his smoking history and a 1982 medical record, which indicated he had smoked at least five cigarettes per day for three years before the onset of PVD.

The court found significant reasons to doubt the reliability of Mr McDermott's evidence about his smoking history. The court concluded that the inconsistencies and evident reconstructions in Mr McDermott's accounts undermined the credibility of his claim. Additionally, the court held that even if his smoking habit began during his service, the connection between his service and the commencement of smoking was merely temporal, not causal. The court thus affirmed the Commission's decision, finding that Mr McDermott's smoking habit was not related to his service in the Navy.

The court's reasoning was grounded in the inconsistencies in Mr McDermott's evidence and the lack of a causal link between his service and his smoking habit. The decision underscores the importance of reliable and consistent evidence in veterans’ entitlement claims, particularly regarding the onset and duration of conditions claimed to be service-related. The court's affirmation of the Commission's decision highlights the stringent standards required to establish a causal link between military service and subsequent health conditions.

The final order of the court was to affirm the decision of the Repatriation Commission, rejecting Mr McDermott's claim that his PVD was caused by his service in the Navy.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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/dayStarted 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.

GENERAL ADMINISTRATIVE DIVISION		)
Re		THOMAS McDERMOTT