McGlynn, Joyce Margaret v Repatriation Commission

[1981] FCA 242

Re: JOYCE MARGARET McGLYNN
And: REPATRIATION COMMISSION
No. G2 of 1980
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Repatriation - war widow's pension - death of former member of Armed Forces from cancer of the lung - whether death had arisen out of or was attributable to war service - standard of proof - application of Law's case (High Court 16 October, 1981) - Repatriation Act 1920 ss.101, 107VH and 107VZZH.

HEARING

SYDNEY

#DATE 14:12:1981

ORDER

1. The appeal be allowed.

2. The decision of the Repatriation Review Tribunal given on 19 September, 1979, be set aside.

3. The claim by the applicant as the widow of Edward George McGlynn for a pension pursuant to the provisions of s.101(1) of the Repatriation Act 1920 be granted, such pension to be paid from and including 22 November, 1977.

4. On the applicant's application there be no order as to costs

JUDGE1

This is an appeal brought pursuant to the provisions of s.107VZZH(1) of the Repatriation Act 1920. The appeal, although so called, is an administrative appeal and thus involves the Court in the exercise of original, rather than appellate, jurisdiction. The appeal comes from a decision of the Repatriation Review Tribunal given on 19 September, 1979. The appeal lies only on questions of law.

It first came into the list for hearing on 2 May, 1980. At that time Toohey J. had recently decided Law v. Repatriation Commission (1980) 29 A.L.R. 64. The appeal to the Full Court of this Court was then pending and, although I heard argument, it was agreed that my decision should await the outcome of the decision of the Full Court. That decision (Repatriation Commission v. Law, (1980) 47 F.L.R. 57, 31 A.L.R. 140) was given on 14 August, 1980. The Commission appealed to the High Court. It was agreed by counsel that the decision in this matter should await the outcome of that appeal. Judgment was delivered by the High Court on 16 October last; Repatriation Commission v. Law (16 October, 1981, as yet unreported).

The argument in this case raised squarely a number of matters which the later judgments have now resolved. These included the question of whether an applicant in the siutation of the applicant here could rely upon s.101(1)(a) of the Act. The High Court did not express a view upon this question but both the Full Court of this Court and Toohey J. at first instance decided that the question should be answered adversely to the applicant.

Another matter concluded by the decisions in Law's case concerned the question of whether the legislation involved a two stage process, the applicant having to lead some evidence to establish causal connection between war service and disease or death. As noticed in Repatriation Commission v. Byrne (unreported, 9 December, 1981) no such process is involved. That argument is concluded against the Commission.

So much dead wood having been cleared away, it is now possible to come to the real questions in this case which are whether the evidence was such that as a matter of law the Tribunal could have reached no other conclusion than that it was not satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim, and, if that question be answered adversely to the applicant, whether the Tribunal had nevertheless misdirected itself as to relevant matters of law with the result that the matter should be remitted to the Tribunal to be re-heard.

It is not in question that the deceased, upon whom the applicant was dependent, enlisted for service in the Australian Imperial Force on 12 July, 1940. He had been born on 13 December, 1915. He was discharged on 27 November, 1945. He was married to the applicant on 29 July, 1946. He was a prisoner of the Japanese from 1942 to 1945. He died of cancer of the lung on 28 September, 1976.

The relevant legislation which applies in this case includes ss.107 VG and 107 VH, the same sections as were considered in Law's case. The first of these provisions relaxes the rules of evidence and facilitates proof; the second includes the requirement that the Tribunal shall set aside the decision of the Repatriation Commission from which an applicant appeals "unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application".

Before the Tribunal were statements by the widow, a Mr. Haile, who was a relative of the deceased, a Mr. R. W. Newton, who was a senior officer and prisoner of war of the Japanese, a statement by Dr. D.C.C. Hinder, also a prisoner of war with the Japanese and a statement by Mr. R.A. Rudd, another prisoner of war.

In her statement the applicant said that she had first met the deceased shortly before the war and visited his home on a number of occasions. She said that he did not smoke. She met him again in 1945 and observed that he was then "a heavy cigarette smoker". She said that for a short time he smoked a pipe but later returned to cigarettes which he continued to smoke until a year before his death. Mr. Haile said that the deceased did not smoke prior to enlistment but thereafter began to smoke. He said cigarettes were handed out by various voluntary organisations and the deceased became "a regular cigarette smoker".

Mr. Newton gave general evidence about conditions in Japanese prisoner of war camps. Amongst other things he said that it was generally found that smoking was an accepted means of offsetting the pangs of hunger, limited quantities of food being available. Supplies of cigarettes were scarce, but prisoners smoked local native grass tobacco; sometimes they smoked "any leaf of any tree, even to pine needles". He described the frequent and prolonged coughing bouts suffered by prisoners of war as the apparent result of their smoking these various articles.

Evidence to a similar effect was given by Dr. Hinder who said that men in working parties smoked because it eased "the dreadful hunger". He said that in Singapore some were able to steal cigarettes and food from the Japanese, but others were not so fortunate and smoked anything that would burn, "paper, leaves, bark and the very rank wire like type of tobacco which was obtained from the Chinese. These unusual smoking habits continued for 3 1/2 years". He said that every shred of tobacco was saved. Butts were saved and, rerolled in paper or leaves, smoked again until there was nothing left but ash. Dr. Hinder said that these cigarettes were being smoked by men who were over-worked, starving in both the quality and quantity of food, suffering from untreated diseases and in no state to withstand or offer any resistance to toxins of any sort.

Mr. Rudd spoke of conditions in Japanese prisoner of war camps. His evidence confirms that of the other witnesses. He also said that after the prisoners were freed, large quantities of tobacco and cigarettes were given to them. On his discharge he received an entire kitbag full of cigarettes.

The Tribunal also had before it a medical report dated 21 March, 1979, by a physician, Dr. L. V. Armati. He referred to the well known fact that smoking is a prevalent cause of cancer of the lung. He referred also to the evidence which tended to establish that the deceased had not smoked prior to enlistment. He thought it reasonable to consider that the deceased's smoking habit was perpetuated by his experience as a prisoner of war, "and subsequently post war, by frustration arising from the effects of his accepted disc lesion". There was evidence that the deceased suffered from a back condition in respect of which he received a repatriation pension.

The Tribunal in its reasons for decision referred briefly to the evidence and also to a report of the Senior Medical Officer (Appeals) dated 8 May, 1979, in which the following appears:-

"There appears to have been a long habit of about 20 cigarettes per day which is an average consumption. The '40 years' has been refined by the statements by J. McGlynn and E. Haile to show that the veteran did not smoke prior to enlistment but began shortly after i.e. prior to his overseas service. Smoking was not caused by his experiences as a prisoner of war. Dr. Armati refers to the role of social factors in a person adopting the smoking habit. These factors apply in civilian life as in Army life. His mixing with other smokers and the ready availability of cigarettes were factors encouraging smoking but the choice of doing so remained his own. Conditions of service did not cause the veteran to smoke. Studies on former Australian and United States prisoners-of-war have shown no increased mortality from malignant diseases such as carcinoma of the lung compared with a control (sic) population."

The Tribunal concluded its decision as follows:

"The Tribunal finds:

(a) That the cause of the member's death was carcinoma of the lung which was first diagnosed in 1976 and may have been present from 1974, some 28 years after his war service.

(b) That the major causal factor in the member's incapacity was cigarette smoking.

(c) That the member commenced cigarette smoking early in his war service and that the habit was reinforced during his period as a prisoner. While the Tribunal accepts that the member's smoking habit developed during his war service it does not accept that the conditions of his service contributed to the formation of such habit to a material degree at the time nor did his war service or war caused disabilities prevent him from ceasing smoking once the dangers of tobacco were commonly known. From consideration of the merits and all the circumstances of the case and the whole of the evidence, including medical opinion, the Tribunal finds that no causal link has been established between the member's war service and his death and that he died long after his war service from a cause unrelated thereto. The Tribunal is satisfied beyond reasonable doubt that there are insufficient grounds for granting the application and affirms the decision of the Repatriation Commission."

It is plain to my mind that the Tribunal has misdirected itself in the approach which it has taken. It does not give any effect to the provisions of s.107 VH. Instead it treats the applicant as bearing the onus of establishing that there was a causal relationship between the deceased's smoking habit and his death. Its statement in the passage above quoted to the effect that it did not accept that the conditions of his service contributed to the formation of that habit and its statement in the succeeding paragraph that no causal link had been established between the deceased's war service and his death plainly indicate the error into which the Tribunal has fallen.

For that reason the decision cannot stand. But the question remains as to whether its decision should be reversed or the matter remitted to the Tribunal for a fresh hearing. In Law's case the judges considered that, as a matter of law, no other finding was open than that the Tribunal could not have been satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim.

The facts of this case are very similar to those of Law's case. It was suggested in argument that, from the applicant's point of view, Law's case was a somewhat stronger one than the present because some of the evidence tended to establish positively that his smoking habit had intensified during the time he was a prisoner of war. But, if that were the case, it does not emerge very clearly from any of the judgments. Rather, the evidence seems to have been more in accord with that here in question; see 29 A.L.R. at pp.70 and 72-73; 31 A.L.R. at p.142 and pp.5 and 6 of the print of the High Court judgments. Furthermore, an analysis of each of the judgments does not suggest that that circumstance, if it were in fact established, played any part in the conclusions reached by each of the judges.

Although comparisons with Law's case are helpful, one must be careful in drawing too much upon the factual similarities and dissimilarities which there are. The important matters are the legal principles to be applied and the evidence in the present case. That evidence tends to establish that it was not improbable that prisoners in the position of the deceased, due to the appalling conditions under which they lived, relied heavily on smoking as an offset to hunger and as affording relief both from tension and from boredom. I do not regard it as important that the evidence of Mr. Newton, Dr. Hinder and Mr. Rudd does not relate specifically to the deceased. The deceased was a smoker before he was taken prisoner. The circumstances are such as to make it not improbable that his smoking habits developed and intensified during the time he was a prisoner, in much the same way as did those of the prisoners observed by the three witnesses. Similar general evidence was taken into account by the judges in Law's case and treated by them as relevant on the matters in question; see 29 A.L.R. at p.73 and 31 A.L.R. at p.153.

Moreover, support for the view that the deceased's smoking habit intensified during the time he was a prisoner of war is independently found in the applicant's statement that the deceased had become a heavy smoker by the war's end.

There is little doubt that smoking caused the cancer from which he died. There is not in this case, as there has been in others, discussion in the medical evidence about the lead time between insult to cells and the onset of cancer, at least in a detectable form. Accordingly, there is no evidence which would compel a finding that the relevant insult to cells must have occurred after the war. Even if there were, that would not gainsay that increased smoking as the result of the stresses and strains of the deceased's war service was not the cause.

A matter much relied upon by the Tribunal was that the conditions of the deceased's war service did not contribute to the original formation of his smoking habit. That was said by counsel for the Commission to be a justifiable view because, at the time the deceased commenced to smoke, he had not left Australia. He was in an environment little different from many in civilian life, particularly in a country which was at war. I agree that that is a possible view. A view which is equally open is that the strains and tensions of his new found life and thoughts about what lay ahead of him may well have been the cause of his commencing to smoke. I cannot tell. But it ought not to be overlooked that the deceased voluntarily enlisted for service abroad at a time shortly after Dunkirk and the fall of France and not long before Australian forces were in action in North Africa. No doubt Australia then seemed far away from the various theatres of war; but the deceased must have realised that before long he would very likely be in action somewhere overseas.

Whilst these matters are relevant to be considered and help the applicant's case rather than that of the Commission, they are not, in the context of this case, greatly significant. The significant consideration is that the evidence discloses that, as a matter of real and distinct possibility, the smoking habits of the deceased may have intensified and developed as a result of the conditions under which he lived as a prisoner of war. But for any such intensification of his smoking in the appalling condition in which he existed as a prisoner, he may never have developed cancer.

Finally, I do not understand the relevance of references in the Commission's medical evidence and in the Tribunal's decision to its being the deceased's choice or decision whether he continued to smoke. Many things could be said about such a consideration. It is perhaps enough to say that there is a real possibility that his cancer was already triggered long before the dangers of smoking became commonly known. I regard the statement and the considerations which lie behind it as quite irrelevant for the decision to be made in this case.

In my opinion the following possibilities are distinct and real:

1. The deceased would not have smoked at all but for his war service.

2. His smoking would not have become as intensive as it was but for his war service.

3. The deceased may not have continued to smoke, or not have smoked as much, after the war had it not been for his war service.

4. The triggering insult to cells in his body may have occurred during the war as the result of smoking, or more intensive smoking, that he would not have indulged in but for his war service.

To be added into the balance along with one or more of these various possibilities is the plain fact that the deceased died of cancer of the lung caused by smoking. In those circumstances I do not perceive how any tribunal, properly directing itself as to relevant matters of law, could be satisfied beyond reasonable doubt that there were insufficient grounds for granting the claim.

I am therefore of opinion that the proper course is to substitute for the decision of the Tribunal a decision which will have the effect of granting to the applicant the pension which she claims.

I do not now make formal orders but stand the matter over to enable counsel to consider what I have said. When the matter is again in the list counsel for the applicant is to bring in short minutes of order to give effect to my decision.