McMurchie and Repatriation Commission

[2003] AATA 418

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 418

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1301

VETERANS' APPEALS DIVISION		)
Re		Norma Winifred McMurchie

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Ms S M Bullock,    Senior Member
Dr M E C Thorpe, Member

Date7 May 2003

PlaceSydney

Decision

The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor, the Tribunal decides that:

(i) Mr Alan John McMurchie’s death from adenocarcinoma of the kidney was war-caused as defined in section 8 of the Veterans’ Entitlements Act 1986 (Cth).

(ii)      A War Widow’s Pension is payable to Mrs McMurchie with effect  from and including 28 October 1999.

  ...................................

  Ms S M Bullock

  Presiding  Member  

CATCHWORDS

VETERANS’ AFFAIRS – Entitlement – War Widow’s Pension – Reasonable Hypothesis – War-Caused Smoking – Cigarettes – Pipe – Metastatic Grawitz Tumour

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 8, 11, 13, 119, 120, 120A, 196B

AUTHORITIES

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Deledio (1998) 83 FCR 82

East v Repatriation Commission (1987) 16 FCR 517

Webb v Repatriation Commission (1988) 19 FCR 139

Repatriation Commission v Webb (1987) 13 ALD 421

Repatriation Commission v Bey (1997) 79 FCR 364

Connors v Repatriation Commission (2000) 59 ALD 61

Knight v Repatriation Commission [2002] FCA 103

Bull v Repatriation Commission (2001) 66 ALD 271

Mason v Repatriation Commission [2000] FCA 1409

REASONS FOR DECISION

7 May 2003   Ms S M Bullock,    Senior Member
  Dr M E C Thorpe, Member

1.      This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”) by the Applicant, Mrs Norma Winifred McMurchie of a decision by the Repatriation Commission dated 1 February 2000 (T2) as affirmed by the Veterans’ Review Board (“the Board”) on 6 July 2000 (T9), that the death of her husband, Alan John McMurchie was not related to his service. 

2. A hearing was held before the Tribunal on 21 November 2001 and resumed on 11 July 2002 and 15 November 2002. Final written submissions were received on 20 November 2002. Mrs McMurchie was represented by Mr M Vincent of Counsel and the Respondent was represented by Mr J Marsh, Departmental Advocate. Mrs McMurchie provided oral evidence to the Tribunal as did Professor F O Stephens, Head of the Department of Surgery, University of Sydney (Rtd). Documents were taken into evidence pursuant of section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”, T1 – T11) and the following exhibits:

EXHIBIT NO	DESCRIPTION	DATE
A1	Statement of Mr P Quance	9 May 2001
A2	Statement of Mr T Warren	Undated
A3	Statement of Mr R Jordan	8 May 2001
A4	Statement of Mr J Anderson	7 May 2001
A5	Report of Dr H M Learoyd	12 July 2001
A6	Two Photographs of Mr A McMurchie and Mr Short	1942/1943
A7	Letter “To Whom It May Concern” by Mr J L Brassil, Historical Officer, 31 Beaufighter Squadron Association	Undated
A8	Mr A McMurchie’s Observer’s Air Gunner’s and W/T Operator’s Flying Log Book	Various
A9	Statement by Mrs N McMurchie	28 March 2002
A10	Statement by Mr E McMurchie	4 February 2002
A11	Statement by Mrs B Barton	11 February 2002
A12	Handwritten note from Mr J Brassil plus attachment	Undated
A13	Statement by Mr J D Scilly	12 April 2002
A14	Photograph of Mr McMurchie (left hand side)	Late 1970s
A15	Photograph of Mr McMurchie	1960s
A16	Photograph of Mr A McMurchie, Mr E McMurchie and Uncle	Possibly 1968/1969
A17	Letter from Professor F O Stephens	Undated
R1	Service Documents from the Royal Australian Air Force	Various
R2	Report of Mr R Piper, Military Aviation Research Services and attachments	6 November 2001
R3	Supplementary Report from Mr R Piper, Military Aviation, Research Services	26 January 2002
R4	Report of Dr P Beale, Medical Oncologist	7 December 2000
R5	Report from Dr A Gillies, Conjoint Associate Professor of Medicine, John Hunter Hospital	16 January 2001
R6	Report from Associate Professor Gillies and Referral Letter	8 May 2001
R7	Clinical notes for the West Parade General Practice	Various
R8	Hospital records from the Poplars Private Hospital, Epping	Various
R9	Transcript of the Veterans’ Review Board Hearing	16 October 2000
R10	Medical Records from Ryde Hospital	Various
R11	Medical Records from Royal Prince Alfred Hospital, Camperdown	Various

ISSUES

3. The issue in this matter is whether or not Mr Alan John McMurchie’s death is war-caused pursuant to section 8 of the Veterans’ Entitlements Act 1986.

SERVICE

4.      Mr McMurchie served in the Royal Australian Air Force (“RAAF”) from 27 March 1941 to 18 October 1945 (T3, p7; Exhibit R1).  Mr McMurchie’s entire service is operational service as he flew overseas.

LEGISLATION

5.      A decision in this matter requires consideration of the Veterans’ EntitlementsAct 1986 (“the Act”).

6. Section 8 of the Act deals with war-caused death and states as relevant:

“8 War-caused death

(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)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or

(e)       the injury or disease from which the veteran died:

(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or

(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;

Note:The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.

but not otherwise.

...”

7. Section 11 of the Act deals with dependants, and specifically, a dependant in relation to a veteran includes a widow.

8. Section 13 of the Act deals with eligibility for pension and as relevant states:

“13 Eligibility for pension

(1)       Where:

(a)       the death of a veteran was war-caused; or

(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;

the Commonwealth is, subject to this Act, liable to pay:

(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or

(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;

in accordance with this Act...”

9. Section 119 of the Act reflects that decisions-makers are not bound by the technicalities and that decision-making under the Act is of an administrative nature rather than judicial. Thus factors such as the death of a veteran, the passage of time and the absence or deficiency of records can be taken into account.

10. As Mr McMurchie’s service is operational service, the applicable standard of proof is that of the reasonable hypothesis as set out in subsections 120(1) and 120(3) of the Act. The Tribunal is required to find that Mr McMurchie’s death was war-caused unless it is satisfied beyond reasonable doubt that there is not sufficient reason for making that finding. That is, the Tribunal must be satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect Mr McMurchie’s death with the circumstances of his operational service in the RAAF.

11. The Tribunal must also consider Mrs McMurchie’s application for a Widow’s Pension in light of section 120A of the Act which requires that the determination be made assessing whether or not there is a reasonable hypothesis in accordance with any Statements of Principles issued by the Repatriation Medical Authority (RMA) or any relevant determination or declaration under the Act.

STATEMENT OF PRINCIPLES

12.     The Tribunal considers that the relevant Statement of Principles is Instrument Number 87 of 2001 concerning Adenocarcinoma of the Kidney.

CAUSE OF DEATH

13.     Mr McMurchie died on 10 September 1999 at the Poplars Nursing Home, Epping.  Mr McMurchie was 79 years old when he died.  From the Death Certificate it is noted that the cause of death was “Metastatic grawitz tumour” which had a duration of two months.  The certifying medical practitioner at the time of death was Dr C McDonald. Mr McMurchie was survived by his wife, Mrs Norma McMurchie and two children, Edward, then aged 50, and Barbara aged 49 (T4, p16). 

EVIDENCE OF MRS NORMA WINIFRED MCMURCHIE

14.     Mrs McMurchie met Mr Alan McMurchie when he was in the RAAF just prior to demobilisation in 1945.  Mrs McMurchie was living with her parents at Ashfield at that time.  Mrs McMurchie told the Tribunal that her future husband was a heavy smoker at that time and this was noted on his enlistment papers.  Mrs McMuchie also stated that her husband smoked a pipe and cigarettes.  At that time in the early stages of their relationship, she would see him on two or three occasions per week. 

15.     Mrs McMurchie told the Tribunal that she knew that her husband was a navigator in the RAAF, flying in Beaufighter planes.  He flew on very long flights, undertaking strafing and bombing missions having to travel over both land and sea. The flights to Japan could last for up to six hours.  Mr McMurchie talked to her about his service and it being a rugged life.  She recalled discussions about the flights being very long, day after day.  Mr McMurchie had difficulty using the standard rubber tubes fitted to the aircraft for the purpose of holding urine when the pilot or navigator needed to go to the toilet. Mrs McMurchie told the Tribunal that the space in the Beaufighter aeroplanes is very confined and those flying were unable to move.  She stated that rather than drench themselves with urine they would “hold on”.  Mr McMurchie would try to last for the entire flight without going to the toilet because of the inconvenience and unsatisfactory urine elimination system in those planes. 

16.     In the camp back on the northern Australian mainland, Mrs McMurchie was aware that the men had no fresh food and they drank bore water at times. Describing Mr McMurchie’s camp life, he had told his wife that smoking helped him deal with the rigours of this existence.  He told her that it was a wonderful thing to return to solid ground after often very dangerous flights either because of the weather or because of contact with the enemy.  He obtained cigarettes from the canteen and they were able to use whatever quantities they wished.

17.     Mrs McMurchie contended that her husband developed urine retention problems as a result of these extended flights.  He would not consume fluids before flying and as a result became dehydrated.  Mrs McMurchie stated that her husband started having many urinary tract infections.  The drugs he was given were sulphur- based and later in life, he had some urine leakage problems.  Mrs McMurchie agreed that she had told the Consultant Urologist, Dr H M Learoyd, that her husband had many episodes of urinary tract infections, first diagnosed when he was on war service in the tropics, continuing to have episodes all his adult life (T6, p32).  Mrs McMurchie stated that her husband had told her after attending an ANZAC Day March, that all the men had urinary tract infection problems.  Mrs McMurchie acknowledged that she had told the Board of urinary tract infection problems in 1956 but had told the Tribunal that he had been diagnosed with problems before this, perhaps in 1948 or 1950. 

18.     When playing golf in the 1970s and 1980s, Mrs McMurchie recalled that her husband would take a pad of Kleenex tissues and place in his underpants to save him from embarrassment of a urine leakage.  She knew about this because she would find the tissues in the wash.  Mrs McMurchie described herself and her husband as private people.  She recalled that he had urinary infections and had various diagnostic tests.  The urine he would take for testing was cloudy and smelling, she stated.  In the 1940s, Mr McMurchie had his prostate gland removed.

19.     Mrs McMurchie noted that she and her husband married in 1946 and immediately after the war, they lived with Mrs McMurchie’s parents for three and a half years.  Her father smoked a pipe and she recalled that Mr McMurchie and her father would routinely smoke a pipe in addition to Mr McMurchie continuing to smoke tailor made cigarettes, either “Benson and Hedges, Capstan or Rothman’s”..  It was common practice, Mrs McMurchie stated, for people to smoke at that time.  Mrs McMurchie herself tried smoking but did not like it.  She told her husband to stop and also her mother did not like smoking.  Mrs McMurchie did like her husband smoking his pipe because he looked very good doing so.  After the war, Mrs McMurchie stated that their social life involved them being surrounded by ex-service men whose common practice was to smoke.  This did not worry Mrs McMurchie initially but later, when there was more general knowledge in the population about the harmful effects of smoking, she became worried about her husband’s continual smoking and it upset her.  She had a rule however early in her marriage that there was to be no smoking in the bedroom.  Mrs McMurchie informed the Tribunal that her husband suffered from mild asthma after the war which gradually increased in seriousness.  That was why, on her understanding, he cut down his cigarette smoking but kept up his pipe smoking. 

20.     Mrs McMurchie was referred to a smoking questionnaire dated 28 January 2000 (T4, p19) which she stated she filled in at a Department of Veterans’ Affairs Office.  Mrs McMurchie noted that in the “Widows Report-Cigarette Smoking” that her husband started smoking cigarettes on a regular basis in 1940/1941, smoking two packs of tailor made cigarettes in addition to being a pipe smoker.  She noted further in the report that Mr McMurchie continued smoking after joining the RAAF where there was an issue of cigarettes daily.  The Report further recorded that Mr McMurchie stopped smoking permanently in 1968 and further down the report at Section 2 of Question 6, it was noted that there was a change in 1968 that Mr McMurchie “cut down” because of chest infections.  In relation to the chest infections, Mrs McMurchie noted that her husband was a mild asthmatic and had been prescribed Ventolin, also requiring a few trips to the Ryde Hospital.  Mrs McMurchie thought that her husband might have followed medical advice to give up cigarettes, although she herself did not go with Mr McMurchie to attend any doctors appointments.  Mrs McMurchie believed that her husband smoked the pipe when he gave up cigarettes to make up for the lack of cigarettes.

21.     Mrs McMurchie described for the Tribunal a picture of her husband having several pipes and that he smoked the best pipe tobacco.  He would smoke the pipe at the office and at leisure.  After 1968, he was still socialising with his ex-servicemen friends, Mrs McMurchie stated, who also smoked.  Mrs McMurchie believed that her husband ceased smoking altogether in about 1985.  She also believed that her husband smoked more than one pipe per day and that he smoked everyday.  She noted that he would pack the tobacco tightly into the pipe and he would use many matches to light the pipe.  Mrs McMurchie referred the Tribunal to a photograph (Exhibit A15), which depicted her husband at Mona Vale, a favourite place to swim in the early 1960s.  She believed that she probably took that photograph.   Another photograph at Exhibit A14 showed Mr McMurchie with his golf friends.  In 1972, Mr and Mrs McMurchie commenced taking golfing holidays and the photograph (Exhibit A14) was taken in the late 1970s, evidenced by the type of clothes worn by those depicted in the photograph. Mr and Mrs McMurchie are on the left of the photograph and she believed that his tobacco and pipe were in his shirt pocket.  Mrs McMurchie told the Tribunal that she always noticed traces of pipe tobacco in Mr McMurchie’s shirt pocket when she came to wash his shirts.

22.     When Mr McMurchie’s ear cancer was apparent, he stopped smoking, Mrs McMurchie stated.  Mr McMurchie had two operations and one of them involved Professor F O Stephens removing a large section of his ear.  Mrs McMurchie believed that Professor Stephens had advised her husband to cease smoking and this she believed occurred in 1985.

23.     Mr McMurchie was in the printing business and Mrs McMurchie would help him by undertaking some typing at home or would help him out with the business during rushed times.  This contact she had with Mr McMurchie in the work environment provided evidence that he was continuing to smoke the pipe beyond 1968. 

24.     Mrs McMurchie told the Tribunal that she had undertaken an experiment by purchasing a 50 gram pouch of pipe tobacco similar to that smoked by her husband.  She believed that her husband smoked four or five fills of pipe tobacco, mostly five each day.   A 50 gram pouch of tobacco filled 12.5 pipes, she stated, and each pipe would use four grams of pipe tobacco.  Adopting this approach, Mrs McMurchie estimated that Mr McMurchie was smoking between 16 to 20 grams of pipe tobacco each day.  In terms of cigarettes, she estimated that he would smoke two packets of tailor made cigarettes per day, that is 25 cigarettes, in addition to pipes which resulted in a consumption of 20 grams of pipe tobacco each day.  Mrs McMurchie stated that her husband continued smoking both cigarettes and pipe tobacco at this rate until 1968 when he ceased cigarettes but continued smoking his pipe.  Mrs McMurchie noted the records of General Practitioner, Dr Calderbank, which indicated that Mr McMurchie was smoking ten to 20 cigarettes per day, but Mrs McMurchie did not think that her husband had told Dr Calderbank the truth (Exhibit R7, p3).  It was possible that Dr Calderbank may have told her husband to cease smoking but Mrs McMurchie could not confirm this.

25.     Mrs McMurchie stated that she did not buy her husband’s tobacco but noticed before 1968 that when she emptied the bins each day, there would be two empty cigarette packets there.  Dr Calderbank’s notes indicated that Mr McMurchie was still smoking in 1963, having noted that in 1956 he was smoking at the rate of 20 cigarettes per day (T6, p40).

26.     Mrs McMurchie was referred to Exhibit R7, p8, where there is an indication that Mr McMurchie had recently started smoking again after a 12 month break.  Mrs McMurchie had no knowledge of any such 12 month break from smoking. Mrs McMurchie agreed that she had given evidence to the Board that Mr McMurchie ceased cigarette smoking in 1968 because of asthma (T9, p78).  Mrs McMurchie stated that Dr Calderbank would have known that her husband was smoking a pipe and cigarettes.  Mrs McMurchie noted the entry at T6, p40, of her husband’s suffering severe asthma on 8 July 1973 necessitating admission to Ryde Hospital.  Mrs McMurchie stated that he was continuing to smoke at that time.  She also recalled Mr McMurchie’s admission to Ryde Hospital for a frozen shoulder in 1980 (Exhibit R10).  Mrs McMurchie stated that Mr McMurchie was still smoking the pipe at that time and was taking the asthma medication Ventolin and Becotide..  There was a further admission to the intensive care unit in 1983 (Exhibit R10, pp9,10) in which it was noted that there are no cigarettes having been smoked for 15 years, that is, in 1968. Mrs McMurchie acknowledged there was no mention of pipe smoking.  A further entry dated 30 December 1984, (R10, p17) indicated that there were no cigarettes for 20 years, taking the cessation back to 1964.  Again there was no reference to pipe smoking.  Mrs McMurchie acknowledged that Dr Eisenberg, a Cardiologist, had Mrs McMurchie’s confidence as being competent and aware of issues to do with her husband’s health.  There was no reference by Dr Eisenberg to smoking on 3 January 1985 (Exhibit R7, p86) or on 21 December 1982 in a letter to Dr P Townsend, General Practitioner, from Dr Eisenberg.  In that letter (Exhibit R7, p96) Dr Eisenberg noted that Mr McMurchie had not smoked for 15 years, having previously smoked 20 cigarettes per day.  There was also no mention of pipe smoking.  Mrs McMurchie stated that these entries by various doctors are wrong because Mr McMurchie was smoking his pipe.  Mrs McMurchie reiterated that Mr McMurchie ceased pipe smoking in 1985.  She stated further that Mr McMurchie had continued pipe smoking because he did not consider that it was harmful to his health.  Mrs McMurchie stated that she believed that her husband was reluctant to tell doctors of his pipe smoking however, because he did not want to give it up, particularly as he thought that it was harmless.

27.     Mrs McMurchie stated that her husband enjoyed smoking because on service, smoking cigarettes had relieved his stress, particularly in the process of winding down after a flight.  Mr McMurchie told his wife on many occasions, as had various of Mr McMurchie's friends (Exhibit A9, p15, 16), that beer and cigarettes were a form of relief in a combat zone and having to deal with the sheer misery of their circumstances. 

28.     Mrs McMurchie told the Tribunal that she became worried about her husband’s smoking when he consulted Professor Stephens about the cancer on the ear.  Mrs McMurchie had met Professor Stephens on the day of her husband’s ear surgery.  She stated that she was almost in tears the entire time and does not recall a great deal about their conversation.  At that time she believed her husband was smoking about five pipes per day. 

EVIDENCE OF DR EDWARD JOHN MCMURCHIE

29.     Dr McMurchie is the son of Mr and Mrs McMurchie.  He provided a statement dated 4 February 2002 (Exhibit A10).  Dr McMurchie noted that when living at home, he noticed his father smoking up until the time Dr McMurchie was approximately 21 years old in 1969.  Dr McMurchie himself smoked until approximately 15 or 16 years ago.  He would smoke with his father, mainly when he was at home and occasionally when they played golf. 

30.     In his statement, Dr McMurchie stated that his father took up the pipe when he gave up cigarettes because he believed that smoking a pipe was not harmful to his health.  Later in evidence, Dr McMurchie noted that Mr McMurchie may have been smoking a pipe before he gave up cigarettes, but Dr McMurchie was unsure of this.  What he did know definitely was that his father was smoking the pipe regularly from 1969 and possibly earlier. Dr McMurchie believed that his father ceased smoking a pipe when he was approximately aged 37 or 38, that is in 1985 or 1986.  Dr McMurchie was not at home at that time and could not clearly estimate what level pipe smoking his father engaged in, but whenever he saw him, he would always be smoking his pipe.  Dr McMurchie believed that his father smoked the pipe everyday, particularly in the afternoon and when having a drink.  Dr McMurchie never talked to his father about his smoking as it was not the sort of discussion he thought a son could have with his father, particularly a man like Mr McMurchie.  Dr McMurchie did not speak to his father about smoking out of loyalty and respect.

31.       Dr McMurchie knew his father had asthma and he had many concerns about him.  He is also aware that his father also used asthma medication such as Ventolin.  Dr McMurchie stated that his father smoked until his ear was removed in 1985..  Dr McMurchie flew to be with his father for that operation and spoke to Professor Stephens.  Professor Stephens had told Dr McMurchie about his father’s smoking and Dr McMurchie saw Professor Stephens pre and post his father’s surgery.  Dr McMurchie did not tell his father about what Professor Stephens had advised because he thought that his father was too distressed.  Dr McMurchie stated that his father would have been reluctant to say he was smoking a pipe in the late 1960s and did not tell his family about his interviews with his various doctors.  Dr McMurchie stated that his father was a very private man and he would do what he wanted to do. 

EVIDENCE OF MRS B BARTON

32.     Mrs Barton provided a Statement dated 11 February 2002 (Exhibit A11).  Mrs Barton stated that she is Mr and Mrs McMurchie’s daughter.  Mrs Barton stated that her father was a pipe smoker and she recalled this from her early life in the 1960s to when he had his ear removed in 1985.  Mrs Barton did not see her father much after the 1970s when she married and moved to Adelaide.  When she did see him, her father was smoking his pipe all the time.  The house and his clothes always smelled of pipe tobacco, Mrs Barton noted.  Mr McMurchie would also smoke cigars with a particular uncle every now and then.

EVIDENCE OF PROFESSOR  F O STEPHENS

33.     Professor Stephens noted that he graduated in Medicine in 1951 and that he had officially retired as head of the Department of Surgery, the University of Sydney in 1993.  Professor Stephens provided an undated letter to the Tribunal (Exhibit A17).  Professor Stephens stated that he remembered Mr Alan McMurchie and treated him for advanced cancer involving a large part of an ear.  Professor Stephens noted that he continued to treat Mr McMurchie over about two years, treating him for the nasty ear cancer and then a smaller cancer problem of the other ear.  There was regular follow-up and he developed quite a relationship with Mr McMurchie.  Professor Stephens noted that Mr McMurchie had excessive exposure to the sun and that had been responsible for his skin cancer.  Professor Stephens noted that Mr McMurchie was also smoking tobacco and he had advised him to cease this practice, as well as limiting his exposure to the sun.  Although Professor Stephens saw thousands of patients, he remembered Mr McMurchie especially because Mr McMurchie was a nice man and “a fun personality”..  Professor Stephens also remembered the treatment of Mr McMurchie's ear which involved removing his entire ear and then having to have an artificial plastic ear made which was attached to Mr McMurchie's spectacles, rather than being able to repair his ear.  Furthermore, Professor Stephens had a special interest in treating advanced cancers. 

34.     Professor Stephens agreed that a record completed by him in 1987 in the Royal Prince Alfred Hospital notes recorded “Nil” smoking (Exhibit R11, p3).  Professor Stephens stated that Mr McMurchie had been a heavy smoker having smoked he believed for 30 years.  Mr McMurchie had confessed to Professor Stephens that he occasionally took a pipe for comfort (Transcript, 15 November 2002, p5), but Mr McMurchie did not consider this to be smoking.  Professor Stephens was not sure how often Mr McMurchie smoked his pipe.  Professor Stephens advised Mr McMurchie to give up smoking the pipe.  By the end of treatment following Mr McMurchie's second ear operation, Professor Stephens believed that Mr McMurchie had given up smoking completely.  Smoking the pipe had no causative relationship with the cancer of Mr McMurchie's ears, but rather the reason for Professor Stephens’ recommendation that Mr McMurchie cease pipe smoking related to his patient’s ability to cope with an anaesthetic and the risks involved in having anaesthetic while being a tobacco smoker. 

35.     Professor Stephens noted that what patients told doctors about their smoking habits is not necessarily true.  Even if doctors provided advice to patients to cease smoking because of the harmful effects or to elicit information about a patient’s smoking history, this did not always cause the person to provide truthful information about such smoking habits nor to take notice of medical advice so as to cease smoking.  In Mr McMurchie's case, Professor Stephens thought that Mr McMurchie believed he had ceased smoking because smoking the pipe to his mind was not really smoking.  In this regard, Professor Stephens opined that Mr McMurchie thought that pipe smoking was a habit, rather than a smoking habit.  Professor Stephens did not know how much pipe tobacco Mr McMurchie smoked or how often, only that he did.  Professor Stephens told the Tribunal that he had seen Mr McMurchie with a pipe in his mouth at the time he was treating Mr McMurchie’s ear cancer. 

36.     It is not strictly true, Professor Stephens opined, speaking medically, that a pipe smoker is a non-smoker, as Mr McMurchie had believed.  Professor Stephens noted that doctors including the Cardiologist, Dr Eisenberg, and Residents try to take careful histories, but if the patient is not telling the truth or omitting to tell the doctor the facts, then there is little a doctor can do.  He did know with Mr McMurchie that he had informed a Resident that he had not been smoking and that this was not true, because of different information which Mr McMurchie had told to Professor Stephens about his smoking habits. Professor Stephens opined that it was probably the case that Mr McMurchie told him about his pipe smoking because Professor Stephens had observed him smoking a pipe.  Mr McMurchie believed that his wife did not know that he was smoking the pipe, Professor Stephens stated.

EVIDENCE OF MR P QUANCE

37.     Mr Quance provided a Statement dated 9 May 2001 (Exhibit A1).  Mr Quance noted that he served with Mr McMurchie during 1943 in World War II when he was a Beaufighter pilot and Mr McMurchie was an observer/navigator.  Mr Quance noted that the Squadron was constantly engaged in harassing attacks on Japanese shipping, airfields and troop positions.  They saw action in Timor, Taninbar, and the Aru and Kai Islands, north of Australia.  As a Beaufighter air crew man, there was a requirement to spend five and six hours sitting in the same position in the plane, crossing the Timor Sea or the Arafura Sea to reach targets.  The base camp was at Coomalie. 

38.     Mr Quance noted that the base conditions were quite primitive. The men lived under canvas, the food was bland and monotonous and during the wet season, flying conditions were extremely dangerous.  Furthermore, Mr Quance noted that Squadron members felt that the making of complaints to the medical officer of feeling unwell was considered as “bludging”.  The only times that the men went to see the medical officer was when it was realised that it would be much too dangerous to fly given their health condition.  On many occasions, if a serviceman reported to the medical officer, the visit would not be registered as the medical officer considered it to be his job to have the air crew back on operations as fast as possible. 

EVIDENCE OF MR T WARREN

39.     Mr Warren provided an undated statement (Exhibit A2).  He stated that he had served with Mr McMurchie during World War II flying Beaufighter planes in Squadron 31.  The aircraft had a crew of two people.  Mr Warren was a pilot and Mr McMurchie was his observer.  This meant that the two worked very closely together throughout their service. 

40.     Mr Warren noted that the distance covered flying these planes from Australia to Timor was the longest distance over the sea in any theatre of war at that time.  Flying conditions were severe and extremely dangerous, the temperature would reach 140 degrees Fahrenheit just prior to take off and this was with the windows open. The aircraft would not fly on one motor which meant that there was always concern that if one motor broke down or was destroyed, the plane would crash.  In the aircraft itself, crew were required to wear certain trousers, a revolver with ammunition belt, machete, a parachute and goggles.  There was consequently little room for the aircrew to move and with the extra clothing they were very hot.  The average operation took approximately six hours, Mr Warren noted, and during that time they had to conserve their water in case there was trouble.  On their return home, the men’s clothes were wringing wet with perspiration.  The crew often experienced severe dehydration as there was nothing to drink except warm bore water when they got home.  Occasionally, they would drink seawater, Mr Warren recorded.  In the ten months that Mr Warren served in these aircraft, he ended up weighing seven stone and seven pounds. 

41.     Mr Warren reported that camp life was extremely primitive.  The food was bully beef, dehydrated potatoes and dried peas.  There was a doctor at camp and a few medical aids.  The primitive hospital was not conducive to hygiene, Mr Warren concluded.

EVIDENCE OF MR J BRASSIL, HISTORICAL OFFICER, 31 BEAUFIGHTER SQUADRON ASSOCIATION

42.     Mr Brassil provided two statements about the conditions experienced by Squadron 31 and those who flew Beaufighters (Exhibits A7, A12).

43.     Mr Brassil noted that Flight Lieutenant, Alan J McMurchie served with 31 Beaufighter Squadron at Coomalie Creek in the Northern Territory from May 1943 until December 1943, as a Wireless Operator and Air Gunner.  The Beaufighter aircraft is a very fast attack fighter/bomber with a crew of two and attacked enemy installations to the north and north west of Australia in Timor, Kai, Taninbar Islands, Aru Islands and supported the many Royal Australian Navy movements across the top of Australia and the Australian Army in Timor.  Mr Brassil noted the cramped conditions and hazardous flying conditions which the Beaufighter crew encountered.  Camp life was crude with personnel under canvas with a palliasse and not much else, Mr Brassil commented.  They experienced scorpions, snakes, ants and excessive rain.  Food was repetitive and uninteresting.  There was a minimal availability of medical treatment.  While there was a doctor and medics, one did not attend sick parade for trivial complaints.  There was a concern of being grounded and this would lead to the breaking up of a crew, taking it out of action. 

44.     In his second Statement (Exhibit A12), Mr Brassil noted that Squadron Leader Gordon, as Flight Commander, signed Mr McMurchie’s hours as 230 hours and five minutes.  While this records the actual operational hours flown, it does not include hours flown on non-operational flights.  Mr Brassil had spoken to other operators who served contemporaneously with Mr McMurchie and he was informed that operations could have been between five to five and half hours long with a few at the extreme range of six and a half hours duration. 

45.     In relation to the use of urine bottles during flight, this bottle was mounted on the starboard side of the aircraft behind the navigator’s position and near the floor.  There was no exhaust of waste products from the aircraft and if the urine bottle was used, and it worked, it was emptied by the navigator on arrival back at base.  Mr Brassil interviewed three navigators about the use of this urine bottle and tube and he noted, “to their sorrow, being showered with wind blown urine, because of the perished condition of the tube”..  Mr Brassil noted that most men preferred to hold on rather than use the tube.  If a navigator did have to use the tube, he would have to leave his position, get down into the wall formed by the after escape/entry hatch, thus leaving the aircraft unprotected from enemy aircraft. 

EVIDENCE OF MR J D SCILLY

46.     Mr Scilly provided a Statement dated 12 April 2002 (Exhibit A13).  Mr Scilly noted that he married Mrs McMurchie’s niece, Janet Cartledge in about 1967.  Mr Scilly met Mr and Mrs McMurchie in 1967 and immediately became part of their family.  Mr Scilly and his wife would see Mr and Mrs McMurchie at regular family functions in addition to at least once a month on other occasions.  Mr Scilly was particularly close to Mr McMurchie and also spoke with him on the phone regularly.  Mr Scilly stated that he knew  Mr McMurchie closely from the time they had met in 1967 until his death 32 years later and he in fact delivered the Eulogy at Mr McMurchie’s funeral.  Mr Scilly recalled that Mr McMurchie reverted to pipe smoking when he gave up cigarette smoking and whenever he saw Mr McMurchie he was smoking a pipe.  He knew that Mr McMurchie ceased smoking pipes in approximately 1985. 

47.     Mr McMurchie discussed with Mr Scilly his service as a navigator flying Beaufighter planes over Timor.  He told Mr Scilly that some of the flights lasted between eight and ten hours and that he would often hold on to his urine for part of that period if he needed to go to the toilet.  The alternative to this arrangement was to face embarrassment using the waste facility provided in the cockpit. When he was not flying, Mr McMurchie would practice holding his urine and he also took measures to reduce the likelihood of needing to go to the toilet by reducing his fluid intake.  Mr McMurchie told Mr Scilly that there was great stress during service regarding the way one appeared to one’s peers and there was an inclination with all concerned to hang on to go to the toilet on land rather than make a fool of oneself in the cockpit. 

OTHER EVIDENCE

48.     A number of other statements were taken in as evidence concerning the primitive camp conditions at Coomalie and the severity of the flight conditions in Beaufighters (Exhibit A3, Exhibit A4).

EVIDENCE OF DR H M LEAROYD

49.     The Tribunal had available to it two reports from Dr H M Learoyd, Consultant Urologist, dated 15 March 2000 (T6, p31) and 12 July 2001 (Exhibit A5).  In his first report, Dr Learoyd noted that he was tendering the report in support of Mrs McMurchie’s appeal to the Board.  Dr Calderbank had referred Mr McMurchie to Dr Learoyd on 19 November 1993. Mr McMurchie had surgery to his prostate gland in 1968.  Dr Learoyd noted that there was well-documented evidence of Mr McMurchie’s long history of recurring urinary tract infections which he understood was first diagnosed when Mr McMurchie was serving during the war in the tropics and he continued to have episodes all his adult life.  Dr Learoyd noted that it could be reasonably suggested that the tropical conditions of heat and periodic dehydration were important factors in the subsequent development of Mr McMurchie's urinary tract infection.  There was ongoing evidence of Mr McMurchie having a well-established urinary tract obstruction.  Dr Learoyd argued that tropical conditions predisposed him to the development of a long-standing urinary tract infection and subsequent obstructive uropathy and that these changes progressed to a state where he was suffering from renal cystic disease secondary to end stage renal disease before the onset of his adenocarcinona of the kidney.  This was a reasonable hypothesis, Dr Learoyd contended, within Factor 5(d) in the Statement of Principles concerning Adenocarcinoma of the Kidney [Dr Learoyd was referring to Instrument Number 107 of 1996]. 

50.     In his report of 12 July 2001 (Exhibit A5), Dr Learoyd contended that Mr McMurchie suffered from urinary tract problems during his war service and these changes led to urinary obstruction, recurrent infection, microscopic cystic changes and hydronephrosis.  In this regard, Dr Learoyd noted long flights of up to six hours where the two man crew were in a confined space and unable to pass urine properly causing them to hold on until they returned to base.  This was noted by Mr Jordon AM (Exhibit A3).  Mr Warren (Exhibit A2) confirmed the problems of high temperature in the aircraft, profuse sweating and dehydration and also indicates that adequate medical records were not kept, Dr Learoyd noted..  The statements from fellow aircrew confirmed for Dr Learoyd that service conditions were difficult and predisposed Mr McMurchie to the overstretching of his bladder, inadequate bladder emptying and subsequent back pressure changes to the upper urinary tract which in turn lead to microscopic cystic changes in the kidneys. 

51.     Eventually at the age of 49 years, Mr McMurchie required prostatic surgery.  This is a very young age for such surgery and further suggested to Dr Learoyd that Mr McMurchie had problems developing at a relatively early age.  There is a positive association between recurrent episodes of urinary infection and the development of renal cancer, Dr Learoyd stated.  He noted that Dr Gillies referred to a CT Scan of July 1999, which did not mention any renal cysts.  Dr Learoyd noted however, that such changes could be microscopic and might not be detected by CT Scan.  Dr Learoyd noted that at no stage was there any biopsy performed on the kidneys.  Any microscopic changes could either be “cystic” or “hydronephrosis” in the absence of any histology or other pathological evidence. Dr Learoyd hypothesised that one would be unable to state firmly that the conditions in Factor 5(d) of the Statement of Principles was not satisfied.  Referring to Dr Gillies record that there was no evidence of renal failure, that is the end stage of renal disease as referred to in Factor 5(d) of the Statement of Principles, Dr Learoyd noted that in the presence of a normal kidney on the other side, one would expect that the biochemical tests would be in the normal range.

52.     In addition, Dr Learoyd noted that there is mounting research evidence to associate exposure to hydrocarbons with the development of renal and other cancers and that this should be considered with a possible relevant factor in Mr McMurchie's case.  In Dr Learoyd’s opinion, Factor 5(d) of the Statement of Principles concerning Adenocarcinoma of the Kidney, Instrument 107 of 1996 is satisfied. 

EVIDENCE OF MR R PIPER, MILITARY AVIATION RESEARCH SERVICES

53.     Mr Piper provided two reports dated 6 November 2001 (Exhibit R2) and 26 January 2002 (Exhibit R3).  Mr Piper noted that whilst on strength in 31 Squadron, Mr McMurchie accumulated 113 hours and 40 minutes operational flying hours, that would equate to in excess of 20 missions.  Mr McMurchie was based at a remote Northern Territory base, Coomalie, for six months in 1943.  The climate conditions were unpleasant, extremely hot, the men were housed in tents and the food left a great deal to be desired.  There was a doctor and medical staff available for Squadron 31 members.  Mr Piper noted that combat missions were often of six hours in length and the aircrew were exhausted and soaked in perspiration on their return.  The use of a relief tube to dispose of urine during the period of flight was of personal preference.  Half of the six hour flight would be over allied controlled areas or water.

54.     In his second report, Mr Piper summarised Mr McMurchie’s wartime flying career with the statistics that he undertook 43 training flights of two or more hours duration.  Mr McMurchie took 41 operational flights of two or more hours and he undertook 43 instructional flights of two or more hours.  There was a total of 127 flights.

EVIDENCE OF DR A GILLIES, AREA DIRECTOR OF NEPHROLOGY, CONJOINT PROFESSOR OF MEDICINE, JOHN HUNTER HOSPITAL

55.     Dr Gillies provided a Report dated 16 January 2001(Exhibit R5).

56.     Dr Gillies noted that the sight of Mr McMurchie’s primary cancer was the left kidney. A CT Scan provided evidence of a large left kidney vascular mass together with several hypodense hepatic lesions, which were subsequently biopsied.  Histology confirmed secondary cancer and the bone scan was consistent with multiple metastases.  The size and vascular nature of the renal mass was consistent with renal cell carcinoma as was the pattern of metastatic spread.  Dr Gillies reported that there was no evidence that either renal cystic disease of any type or end stage renal disease was present.  The CT Scan of 5 July 1999, did not mention any renal cysts and biochemistry tests dated 23 June 1999 did not show significant renal failure. 

57.     Dr Gillies noted that the clinical presentation of the carcinoma appears to have been by chest wall pain and tenderness first recorded in June 1999.  The primary carcinoma in the kidney appears to have been asymptomatic.  Contrary to Dr Learoyd’s opinion, Dr Gillies did not consider that Mr McMurchie had a form of renal cystic disease but rather hydronephrosis. 

SUBMISSIONS

58.     Mr Vincent for the Applicant submitted that if the Tribunal was not minded to make a distinction between Mr McMurchie’s cigarette smoking habit and pipe smoking habit as Mr Marsh had urged upon the Tribunal, then Mr Vincent noted that with no distinction in the smoking habit, the hypothesis linking smoking through service to Mr McMurchie’s adenocarinoma of the kidney was conceded by the Respondent.  If the Tribunal did make that finding, then on that basis, as the Applicant understood the Respondent’s contention, it was not being submitted that anything was capable of being disproved to the required standard and that would be enough to satisfy the Tribunal.  Mr Vincent strongly contended that there is no basis to make a distinction between the different types of smoking.

59.     In terms of the relevant Statement of Principles, Instrument Number 87 of 2001, Mr Vincent submitted that the relevant factor is 5(a) which states:

“(a)smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of adenocarcinoma of the kidney, and

(i)smoking commenced at least 10 years before the clinical onset of adenocarcinoma of the kidney, and

(ii)where smoking has ceased, the clinical onset has occurred within 20 years of cessation; or

…”

60.     The definition of “pack years of cigarettes or the equivalent thereof in other tobacco products” is:

“…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”.

61.     Thus, Mr Vincent submitted that the above definition contemplates packets of cigarettes or the equivalent in tobacco, noting the definition in clause 8 simply puts everything under the heading of tobacco products.  Mr Vincent submitted that there is no rhyme nor reason given the Statement of Principles’ clear definition, to distinguish the types of smoking habits between cigarette smoking and pipe smoking.  The analogy put to the Tribunal by Mr Vincent was that of an alcohol consumption habit arising out of service, where the veteran initially consumed beer but then later changed to some other form of alcohol.  Mr Vincent submitted that it is all ethanol and similarly, in relation to Mr McMurchie, the issue is about tobacco be that cigarette or pipe tobacco.  Mr Vincent noted that pipe tobacco may be refined or milled to a different grade to that of the cigarette.  Mr Marsh’s submissions that the two types of smoking should be separate was simply contradicted by the Statement of Principles itself, Mr Vincent concluded.

62.     Mr Vincent also wished to correct Mr Marsh in terms of the evidence provided by Mrs McMurchie.  Her evidence is that Mr McMurchie did smoke a pipe when she first met him and he was still in the service at that time (Exhibit A9).  Mr McMurchie then continued to smoke both cigarettes and pipes thereafter, Mr Vincent submitted. In relation to the Widow’s Report prepared by Mrs McMurchie concerning her husband’s smoking, Mr Vincent noted that the Report indicated that Mr McMurchie had cut down smoking in 1968.  She had recorded this even before there was an instrument in force which allowed smoking so it could not be said that the smoking history was constructed to suit the new Statement of Principles.  Mr Vincent contended therefore that it is on the record that Mr McMurchie did not cease smoking in 1968 but merely cut down.   

63.     There is support for the evidence of Mr McMurchie’s continued smoking from Dr Edward McMurchie and from Mrs Barton, Mr and Mrs McMurchie’s son and daughter.  Furthermore, Mr Scilly also supports this proposition (Exhibit A13).  There is also independent verification of the continuing smoking of a pipe post Mr McMurchie’s cessation of cigarette smoking in about 1968, arising out of the evidence of Professor Stephens.   Professor Stephens’ evidence is objective in the sense that he has no family affiliation, but this should not discount the evidence of the other family witnesses, whose evidence was provided truthfully, Mr Vincent contended. 

64.     In relation to the issue raised by medical notes that Mr McMurchie ceased smoking for 12 months and then recommenced in mid 1963, Mr Vincent submitted that it is not known whether that covered his pipe smoking or not.  The entry is expressed in terms of it relating to cigarette smoking, Mr Vincent submitted. Furthermore, there is no evidence that the resumption was anything other than a full resumption.  It was not a new habit brought on by specific life events.  Furthermore, Mr Vincent submitted that there is no evidence to suggest that in an addictive habit, such as smoking, that one can actually have a discreet and different habit that can arise subsequently and independently of the habit to which the body has already become accustomed.  The inference must be that there is a continuation of the original habit, in this case, Mr McMurchie’s smoking habit.

65.     In relation to the hypothesis linking the adenocarcinoma through service to renal cystic disease, Mr Vincent noted Mr Marsh’s submission that the definition of renal cystic disease secondary to end stage renal disease cannot be met because there is no evidence of a bilateral condition.  Referring to the definition of renal cystic disease, in clause 8 of the relevant Statement of Principles, it is noted that a bilateral condition is characterised by three or more cysts per kidney which develops in end stage renal disease, but excludes hereditary polycystic disease of the kidney.  Considering Dr Learoyd’s Report (Exhibit A5), he states that because such cysts can be microscopic, they may not have been detected on a CT Scan unless there was a subsequent biospsy.  Mr Vincent submitted that Dr Learoyd, as Consultant Urologist, is making the professional inference because of his expertise that there may well have been such cysts present.  Given Mr McMurchie’s history, Dr Learoyd is entitled and it is appropriate to infer the fact of three or more cysts in each kidney.  Mr Vincent further submitted that it is entirely legitimate for the hypothesis to involve the making of an inference as is noted in the decisions of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. It is also stated in Connors v Repatriation Commission (2000) 59 ALD 61 that as long as it is pointed to on the material, a decision-maker can assume a fact to support an assumption.

66.     Mr Vincent submitted that there are contemporaneous records from fellow serviceman about the nature of the duties which put Mr McMurchie’s bladder and those of other crewman under stress on flights.  Mrs McMurchie recalls her husband telling her of this and she has given that history to Dr Learoyd.  It made sense to Dr Learoyd in terms of what has happened to Mr McMurchie.  Mr Vincent submitted that there is nothing illogical about Dr Learoyd’s train of thought and therefore it is inherently reasonable.  Therefore Factor 5(e) is satisfied in that Mr McMurchie was suffering from renal cystic disease secondary to end stage renal disease before the clinical onset of andenocarcinoma of the kidney.  Dr Learoyd pointed out the chain of connection occurring and there is nothing in the evidence which did not permit him to make such logical connections. There is no evidence, Mr Vincent submitted, which displaced Dr Learoyd’s supposition at the outset. 

67.     Referring to Webb v Repatriation Commission (1988) 19 FCR 139, Mr Vincent submitted that Burchett J noted that the point of a reasonable hypothesis is that it is scientific and plausible as opposed to something that is inherently illogical and does not hold together. The question would then be, whether the Tribunal found, given the relative paucity of material and, Mr Vincent conceded that there was a paucity of material, that it could be satisfied that the reasonable hypothesis was disproved beyond reasonable doubt. Mr Vincent contended that whatever doubts the Tribunal might have, they would not be sufficient to push the matter beyond reasonable doubt because there are a number of people providing evidence about the very hazardous and severe flying conditions. There is also confirmation from Mrs McMurchie that her husband spoke about these conditions to her as well as there being opinion from Dr Learoyd supporting the impact of the severity of the conditions. Accordingly, Mr Vincent submitted that the hypothesis concerning Mr McMurchie’s suffering from renal cystic disease secondary to end stage renal disease before the onset of adenocarcinoma of the kidney would stand. That hypothesis is secondary to the primary submission by the Applicant concerning the link through war-related smoking to Mr McMurchie’s death from an adenocarinoma of the kidney.

68.     Mr Marsh for the Respondent referred to the relevant Statement of Principles being Instrument Number 87 of 2001 concerning Adenocarcinoma of the Kidney.  Dealing first with Factor 5(e) of the Statement of Principles, which deals with renal cystic disease secondary to end stage renal disease, Mr Marsh submitted that the Statement of Principles definition in relation to Factor 5(e) requires evidence of a bilateral condition with a specified number of cysts in each kidney.  Mr Marsh submitted that the evidence in this case on that is quite clear and that is that Mr McMurchie’s condition was a unilateral condition.

69.     In relation to how Mr McMurchie might have contracted the end stage renal disease and its connection with service, Mr Marsh noted the starting point of Dr Learoyd’s hypothesis is evidence of urinary tract infections leading to kidney disease arising from service.  Noting the service records (Exhibit R1), Mr Marsh submitted that they contained no reference to kidney disease, urinary retention or anything similar.  The records refer to relatively minor conditions such as pharyngitis and tinea.  The premise of Dr Learoyd’s hypothesis that Mr McMurchie was diagnosed with urinary tract problems on service and a renal condition is thus incorrect, Mr Marsh contended.  Mrs McMurchie agreed that she had advised Dr Learoyd that her husband had urinary tract infections on service, yet there was no evidence to support this apart from what Mrs McMurchie had stated.  Dr Gillies in his report mentions no evidence of renal failure, that is of end stage renal disease.  When Dr Learoyd notes the documented evidence of Mr McMurchie’s long history of recurring urinary tract infection this simply is not available. 

70.     The basis for the proposition that there were urinary tract infections on service was that Mr McMurchie was involved in long flights in uncomfortable conditions, the flights running for six hours or more.  Mr Marsh referred the Tribunal to the report by Mr Piper (Exhibit R3) which gave detailed accounts of operational flights undertaken by Mr McMurchie.  There was just one flight of six hours, the average flight length being of three or four hours duration.  This record is taken from Mr McMurchie’s own flying logbook which is a definitive source for any flying that he undertook, Mr Marsh submitted.  Furthermore, considering Mr McMurchie’s general practitioners’ records from the West Parade General Practice, mainly from Dr Calderbank, the earliest reference to kidney problems appears to be in 1961.  There is no record of repeated problems with urinary tract infections from the 1950s.  Thus, Mr Marsh submitted, the hypothesis that there were service-related urinary tract infections leading on to end stage renal disease should be disposed of as it is not reasonable, given that it is not pointed to by the evidence.  

71.     There is simply no evidence, Mr Marsh submitted, of the presence of renal cysts or furthermore, any evidence of end stage renal disease.  Dr Gillies (Exhibit R5), a Nephrologist, is an expert in this field and he stated that there is no evidence that renal cystic disease of any type, including end stage renal disease, was present. In this regard, Dr Gillies noted that the CT Scan of 5 July 1999 and the biochemistry tests of 23 June 1999 did not indicate significant renal failure.  That would appear to be the end of the matter, Mr Marsh submitted so far as the Statement of Principles is concerned.  While the Applicant relies on Dr Learoyd’s expert opinion as a Consultant Urologist, Dr Learoyd proposed an hypothesis based on many assumptions, Mr Marsh contended.  Dr Learoyd addresses Dr Gillies’ Report and states that renal cysts could have been microscopic and therefore not detected by CT Scan (Exhibit A5).  Dr Learoyd uses the language of “could” and ”could be” as a possibility.  There was no biospy taken and Dr Learoyd hypothesised that any microscopic changes could be again a possibility, Mr Marsh submitted, either cystic or hydronephrosis.  Mr Marsh submitted that Dr Learoyd was asking himself the wrong question.  He was looking for evidence to exclude something when the evidence simply does not point to his hypothesis in the first place.   The question should be is there evidence or material pointing to the presence of end stage renal disease as defined and a bilateral condition.  The evidence is against this, Mr Marsh contended. 

72.     Furthermore, Mr Marsh noted that Dr Learoyd acknowledged the presence of a normal kidney on the other side.  Again such evidence then causes Mr McMurchie’s circumstances to fail Factor 5(e) because of the definitional requirements within the Statement of Principles.  Notwithstanding the absence of evidence pointing to the requirement of the bilateral condition and dispute the normal CT Scan, the normal biochemical tests and normal right kidney, Dr Learoyd suggested a reasonable hypothesis has been raised.  Mr Marsh submitted that the hypothesis is simply not pointed to by the evidence in the case.  Alternatively, Mr Marsh submitted that if the Tribunal did find that a reasonable hypothesis is raised, then the Respondent submitted that the necessary facts underpinning that hypothesis are disproved beyond reasonable doubt simply by the relevant objective tests which were conducted and which show clearly that the condition was an unilateral one.  Mr Marsh referred the Tribunal to the Full Court decision in East v Repatriation Commission (1987) 16 FCR 517 which requires that a reasonable hypothesis requires more than a possibility. It must be pointed to by the material. In Mr McMurchie’s case, Mr Marsh submitted that the hypothesis put by Dr Learoyd is not pointed to. The approach in East v RepatriationCommission (supra) was reaffirmed by the Full Federal Court in Bull v Repatriation Commission (2001) 66 ALD 271, Mr Marsh contended.

73.      In terms of the general application of a Statement of Principles, Mr Marsh primarily relies on Connors v Repatriation Commission (2000) 59 ALD 61. That decision, Mr Marsh submitted, is important because it puts into context the decision of the cases of Bushell v Repatriation Commission  (supra); Byrnes v Repatriation Commission (supra); and, Repatriation Commission v Bey (1997) 79 FCR 364. Kenny J in that decision, noted that where there is a Statement of Principles determined under subsection 196B(2) of the Act, then, pursuant to subsection 120A (3) of the Act, an hypothesis is reasonable only if it is upheld by the Statement of Principles. Pursuant to subsection 196B(2) of the Act, the Statement of Principles must set out the factors that must as a minimum exist and which of those factors must be related to service. Kenny J further noted that the Statement of Principles prescribes the essential content of what is a reasonable hypothesis for the purposes of subsection 120(3) of the Act, capable of connecting that particular kind of injury disease, or death with the circumstances of the veteran’s particular service. Furthermore, Kenny J noted that there is nothing in the decisions of Bushell v Repatriaton Commission (supra); Byrnes v Repatriation Commission (supra); or, Repatriation Commission v Bey (supra) which would lead Kenny J to accept the proposition that a hypothesis need not be supported by evidence pointing to each individual element of it in order for it to be reasonable for the purposes of subsection 120(3) of the Act. Kenny J’s analysis is consistent with that contained in Bull v Repatriation Commission (supra). 

74.     Mr Marsh concluded that the hypothesis of urinary retention on service causing urinary tract infections and then leading to fatal kidney disease is not reasonable and this is at step three of the process outlined in Repatriation Commission v Deledio (1998) 83 FCR 82. If the Tribunal was of the view that a hypothesis is raised and that it is reasonable, the Respondent’s alternative position is that the evidence is sufficient to disprove the essential elements of the hypothesis and that therefore the facts are not there to support the reasonable hypothesis.

75.     The second hypothesis put by the Applicant deals with Mr McMurchie’s smoking habit.  In this regard the relevant factor is Factor 5(a) which requires at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products being consumed before the clinical onset of the adenocarcinoma and, where smoking commenced at least ten years before the clinical onset and when smoking had ceased, the clinical onset had occurred within 20 years of the cessation of smoking.  From the definition of “pack years” in the Statement of Principles, Mr Marsh submitted that the definition invites a distinction between cigarette tobacco and tobacco and that this is an important distinction.  Mr Marsh submitted that the evidence falls into two discreet parts in relation to Mr McMurchie’s smoking.  There is cigarette smoking and pipe smoking and given the requirements enunciated in Federal Court decisions that there are distinguishable elements of the hypothesis, each element of the hypothesis needs to be satisfied according to Connors v Repatriation Commission (supra).

76.     Mr Marsh submitted that the objective evidence of smoking is based primarily on Mr McMurchie’s own account of his smoking habit rather than that given by his wife, the Applicant.  At T3, p5, it is clearly recorded that Mr McMurchie was a smoker on enlistment, smoking approximately ten cigarettes per day with occasional alcohol.  The reference is silent as to pipe smoking, which is significant in terms of Mrs McMurchie’s submission that smoking, which refers to cigarettes, should by inference also include a reference to pipe smoking.  Mr Marsh submitted that there is not one mention of pipe smoking in any of the post-war objective evidence.  Furthermore, Mr Marsh submitted that there is simply no way of knowing when Mr McMurchie became a pipe smoker.  At page 40 of the T Documents, there is a summary of Mr McMurchie’s medical history by Dr Calderbank.  Dr Calderbank had seen Mr McMurchie, treating him for some 43 years, during the period 1956 until 1999.  There are two references to smoking in those notes (T6, p40) with the first being in 1956 where Dr Calderbank noted that there was smoking of about 20 cigarettes per day.  The second reference was in 1963 when it was noted that Mr McMurchie was still smoking.  The actual clinical notes of the West Parade Medical Practice are more specific (Exhibit R7, p3) where there is a reference to smoking ten to 20 cigarettes per day.  This reference is silent to pipe smoking.  Furthermore, in Exhibit R7, p8, there is a reference in 1963 of Mr McMurchie recently commencing smoking again after a 12 month break.  There is also a note on the corner of the card which seems to indicate advice being given to cease smoking. 

77.     Mr Marsh submitted that all the objective references are either inconsistent with or simply contradict Mrs McMurchie’s evidence about her husband’s smoking habit.  Mrs McMurchie’s evidence is that her husband smoked considerably more than ten to 20 cigarettes per day.  In 1956, the evidence was that he was smoking two or three packets a day and that his smoking was a continuous habit which continued through his post-war life.  There was no suggestion that he had ever ceased the habit and indeed she was surprised to learn of the record of him having had a 12 month break.  Referring to Exhibit R7 and a letter from Dr Eisenberg, Cardiologist, dated 21 December 1982 (Exhibit R7, p96), Mr Marsh submitted that Dr Eisenberg would have been careful and concerned to take an accurate history about smoking.  Dr Eisenberg noted that Mr McMurchie had not smoked for 15 years, which put the cessation at 1967.  Mr Marsh submitted that this is consistent with Mrs McMurchie’s evidence previously, that he had stopped smoking in 1968.  The reference is silent on pipe smoking.  This again is inconsistent with and contradicts Mrs McMurchie’s evidence about her husband’s smoking a pipe. 

78.     Considering the clinical notes from the Ryde District Hospital (Exhibit R10), there are references to smoking, for example a recorded dated 13 August 1980 that there was no smoking history (Exhibit R10, p3).  Mr Marsh was not suggesting that this means that there was no smoking history, but it does suggest that he was not smoking in 1980.  The record furthermore did not specify the type of tobacco, that is, cigarettes or pipe.  A further reference on 15 February 1983 (Exhibit R10, p10), notes alcohol 50grams per day, and cigarettes “Nil for 15 years”..  Again there is no mention of pipe smoking.  Mr Marsh submitted that the context of these references is significant because they relate to admissions to the Intensive Care Unit at Ryde Hospital.  At that time, Mr McMurchie was admitted with a history of palpitations and severe shortness of breath.  Mr Marsh submitted that the admitting doctor would have been very concerned to take an accurate history of Mr McMurchie’s smoking, including, if he was smoking, whether that be cigarettes or some other form of tobacco consumption such as from a pipe.  There is a further reference on 30 December 1984 (Exhibit R10, p17) which indicates that there were no cigarettes smoked for 20 years, which puts the cessation in 1964.  This is broadly consistent with previous references about ceasing cigarette smoking in the 1960s.  There is again no record of pipe smoking, Mr Marsh submitted. 

79.     In the notes from the Royal Prince Alfred Hospital (Exhibit R11, p3), there is an indication that there is no smoking.  At page 16 of Exhibit R11, there is a reference to smoking 20 cigarettes per day for 30 years until 1965 and then a note that Mr McMurchie has not smoked since that time.  That reference would put the commencement of smoking to a time when Mr McMurchie was very young from the age of approximately 15 years.  It is not known as to quantities or when Mr McMurchie commenced smoking.  All that is known, Mr Marsh submitted, is that he was smoking ten cigarettes per day on enlistment.  Mrs McMurchie’s evidence was that when she met Mr McMurchie in 1945 he was smoking.  There is a further reference in the Royal Prince Alfred Hospital notes dated 25 February 1985 that indicates that there were no cigarettes being smoked (Exhibit R11, p38).  Again, there is no reference to smoking a pipe.

80.     Mr Marsh submitted that the evidence of Mr McMurchie smoking a pipe is unclear and unreliable.  Furthermore, Mr Marsh pressed that a distinction should be made between cigarette smoking and pipe smoking.  However, if the evidence suggested that Mr McMurchie continued smoking cigarettes up until a period within 20 years of the onset of his fatal illness, then there would be no difficulty and the hypothesis that was raised would be reasonable.  The Respondent did agree that there was an increase in the habit of cigarette consumption in the quantity from the Statement of Principles, arising from service, that is from ten cigarettes a day to at least 20 cigarettes per day post service.  If smoking continued then the hypothesis raised would be accepted as a reasonable hypothesis.  The difficulty is, Mr Marsh submitted, that Mr McMurchie ceased smoking cigarettes no later than the 1960s and that was well outside the required 20 years in terms of the Statement of Principles.  While the Applicant submits that there is no distinction between cigarette smoking and pipe smoking, the Respondent’s contention is that they are two different habits which can be distinguished from each other.  In this regard, Mr Marsh noted Professor Stephens’ evidence that Mr McMurchie seemed to smoke the pipe for comfort and that he puffed rather than inhaled.  The other issue is that it is not known when Mr McMurchie commenced smoking the pipe.  Mrs McMurchie did not know this and she had not said that Mr McMurchie commenced smoking his pipe on service.  There is no mention made of this, Mr Marsh submitted, in Mrs McMurchie’s evidence in chief or cross-examination or in response to questions from the Tribunal.  In evidence, Mrs McMurchie had explained the inconsistency in her Widow’s Report concerning smoking, which indicated that he had stopped smoking permanently in 1968, but the question arises, Mr Marsh submitted, as to why there would be a reference to pipe smoking in the box, which asked about cigarettes smoked per day.  Mrs McMurchie’s answer is inconsistent with the issue of pipe smoking, Mr Marsh contended. 

81.     Mr Marsh asked why Mrs McMurchie was not consistent by saying that while cigarette smoking had ceased, pipe smoking had not at that stage and that pipe smoking had continued.  Mrs McMurchie’s evidence was that her husband smoked cigarettes and pipes from the time she met him up until his ear was removed and thus he was a smoker until that time.  She had noted that all the men had smoked pipes after they came back from the war.  There was no suggestion, Mr Marsh submitted, that Mr McMurchie actually commenced smoking his pipe during service, nor is there any suggestion as to the quantity of pipe tobacco he smoked during service or before service.  Unlike cigarettes, which were rationed to servicemen, particularly in operational areas, provided principally in Red Cross parcels, the same is not true of pipe tobacco.  The service did not provide pipes nor pipe tobacco.  Mr Marsh submitted that the whole focus of Mrs McMurchie’s evidence initially was on cigarettes, with cigarette smoking ceasing in 1968.  

82.     Turning to the evidence of Dr Edward McMurchie, that is confusing, inconsistent and unreliable, Mr Marsh submitted.  In this regard he noted Dr McMurchie’s initial written statement which indicated his father commenced smoking a pipe after he stopped smoking cigarettes in 1960.  He later changed that evidence and stated that he believed pipe smoking went back earlier but had no idea when it started.  It was something Dr McMurchie noted that he did not really discuss with his father as it was a private matter.  Mr Marsh concluded that it is simply not known if the focus on pipe smoking continued after 1968 and it was not known what quantities of pipe smoking could be related to service.  There is simply no reliable evidence of the requisite amount of tobacco consumed by pipe related to service.  Mr Marsh submitted that there was no combination of cigarette and pipe smoking after 1968 on the Applicant’s evidence.  The only evidence post that date relates to pipe smoking.  

83.     Mr Marsh referred the Tribunal to the Federal Court decision in Knight v Repatriation Commission [2002] FCA 103 in which Gray J attempted to reconcile the references in Byrnes v Repatriation Commission (supra) where at paragraph 46 he noted that there is no doubt that a hypothesis may assume the existence of a fact or facts and be reasonable for the purposes of sections 120 and 120A of the Act. It is still necessary, however, that there be material before the decision-maker pointing to such a hypothesis. The assumption of facts does not extend to assuming the occurrence of events, which, if they had occurred and had been known to the decision-maker then that would have caused the material of point to a reasonable hypothesis. Gray J concluded that deficiencies in the material cannot be made good by the assumption, in favour of a veteran, that there must have been a reasonable hypothesis. The material before the decision-maker must point to such a hypothesis.

84.     Mr Marsh submitted that in this case, the fact would need to be assumed that Mr McMurchie’s pipe smoking was related to his service, as distinguishable, in Mr Marsh’s view, from his cigarette smoking.  Mr Marsh acknowledged that if the Tribunal was minded to make no distinction between the tobacco products in terms of the habit finding that pipe smoking and cigarette smoking are one and the same, then it is clear, Mr Marsh would concede, that the evidence indicated that the hypothesis is reasonable, despite the veteran’s own denial of smoking in various records.  Professor Stephens’ evidence that Mr McMurchie continued to smoke until at least 1985 would take Mr McMurchie within the 20 year period required by the Statement of Principles.    However, Mr Marsh concluded that the Tribunal should look at the habits discreetly and separately and determine a relationship between the veteran’s pipe smoking and service in addition to the cigarette smoking and service.  It is crucial matter and is part of the hypothesis and needs to proved at each point. 

85.     In relation to there being a 12 month break in Mr McMurchie’s smoking occurring in 1963, Mr Marsh subsequent to the hearing provided the Tribunal with a copy of the “Repatriation Commission Guideline CM 5030-Guideline for Claims Assessors on Smoking and Alcohol Related Conditions and Military Service”.  In that Guideline it is noted at Point 9 in relation to smoking, that the resumption of a smoking habit within two years of cessation can be taken to be a recommencement of the former smoking habit.  In this regard, Mr Marsh acknowledged that 12 month break of smoking in the 1960s would not represent a new habit on recommencement of Mr McMurchie’s smoking. 

FINDINGS

86.     The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, the legislation and case law. 

87.     The Tribunal found that Mrs McMurchie provided evidence to the best of her knowledge and was truthful.  While there were inconsistencies in the documentary and oral evidence, the Tribunal does not consider these to be indicative of any attempt to deliberately mislead the Tribunal but merely reflective of the passage of time, the fading of memories and the inability to check material with the Veteran himself. 

88. The Tribunal will deal firstly with the contention that Mr McMurchie had a war-caused smoking habit consisting of cigarette and pipe smoking which led to the onset of adenocarcinoma of the kidney and sadly, Mr McMurchie’s death in 1999. The general hypothesis is neither fanciful nor illogical. Considering the relevant Statement of Principles, Instrument Number 87 of 2001 concerning Adenocarcinoma of the Kidney, the Tribunal considers that Factor 5(a) is relevant. The material available to the Tribunal points to Mr McMurchie having commenced smoking before service continuing to smoke cigarettes on service to an increased level of approximately 20 cigarettes per day up until about 1968. The material also points to him smoking a pipe soon after service commenced and smoking the pipe concurrently with his cigarette smoking. From 1968 the material points to Mr McMurchie smoking the pipe only until 1985. Without making any findings of fact at this stage and applying subsection 120(3) of the Act, considering Factor 5(a) of the relevant Statement of Principles, the Tribunal finds that there is sufficient material pointing to a general hypothesis of Mr McMurchie smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products with smoking increasing in 1943 and continuing for more than ten years before the onset of Adenocarcinoma which had its onset in 1999. Given that the material indicates Mr McMurchie ceased smoking in the form of pipe smoking in 1985, this is within the 20 years of the onset of the condition.

89.     Specifically in considering whether the material points to a reasonable hypothesis, the Tribunal notes that the definition of “pack years of cigarettes or equivalent thereof in other tobacco products” deals with tobacco meaning “either cigarettes, pipe tobacco or cigars smoked, alone or in any combination”.. The material then points to Mr McMurchie smoking a pipe and cigarette tobacco in combination until 1968 and thereafter pipe tobacco until 1985. This material points to a raised reasonable hypothesis as the requirements of Factor 5(a) are met. Accordingly, pursuant to subsection 120(3) of the Act, the Tribunal finds that, as Factor 5(a) of Instrument Number 87 of 2001 is met on the material, a reasonable hypothesis is raised.

90. The Tribunal must next consider whether or not pursuant to subsection 120(1) of the Act, there are sufficient facts to support this reasonable hypothesis beyond reasonable doubt.

91.     It is accepted by the Respondent that in terms of cigarette smoking, Mr McMurchie has a service-related smoking habit with smoking increasing on service and continuing at an increased level for at least 20 years post service.  Mr Marsh does not accept that the pipe smoking can be considered as part of the war-caused cigarette smoking habit, contending that this must be dealt with separately.  Furthermore, Mr Marsh submitted that as the evidence concerning pipe smoking is sparse and at times inconsistent, it is difficult to estimate whether the pipe smoking was occurring on service or post service and also to what quantitative level.  Mr Marsh noted that the medical records are consistent in indicating cessation of smoking of cigarettes in the 1960s and are broadly consistent with a cessation in 1968. Mr Marsh is correct in noting that the medical records do not mention pipe smoking either before 1968 or indeed after 1968. 

92.     Mrs McMurchie’s evidence, Mr Marsh submitted, is inconsistent, as is noted in Mrs McMurchie’s Widow’s Report where she recorded that there was cessation of smoking in 1968 and later records in the same report that there was a reduction of smoking in 1968 as well as noting that Mr McMurchie was a pipe smoker (T4, p19).  Certainly there is photographic evidence that Mr McMurchie smoked a pipe although the period during which the photographs were taken is not precise, but seeming to be, on Mrs McMurchie’s evidence and that of Dr McMurchie to be in the 1970s.  Dr McMurchie noted his presence in one of the photos with his father shown to be smoking a pipe and this was taken in about 1968 or 1969.  There is also evidence from Mrs Barton, Mr and Mrs McMurchie’s daughter, that her father smoked a pipe in the 1960s when she was young and then continued into the 1970s although she saw him less often at that time as she had left home.  Mrs Barton noted however, that her father’s clothes and the family home always smelt of pipe tobacco.  Dr McMurchie recalls his father definitely smoking a pipe in 1969 and indicated that his father may have been smoking a pipe earlier (Exhibit A10). 

93.     Mr Scilly, a close family friend, noted that when Mr McMurchie gave up cigarettes, he continued pipe smoking.   Mr Scilly had only met Mr McMurchie in 1967 so could not comment on whether or not Mr McMurchie smoked a pipe prior to that.  In support of her husband’s smoking a pipe and cigarettes concurrently, Mrs McMurchie noted that her father and her husband, during her early courtship, both smoked pipes together.  Furthermore, Mrs McMurchie provided evidence, which the Tribunal accepted, that she found pipe tobacco to be in her husband’s shirt pockets on each occasion when she was washing those pieces of clothing. 

94.     In terms of the amount of pipe tobacco smoked, Mrs McMurchie had undertaken an experiment.  Mrs McMurchie told the Tribunal that she knew that her husband smoked four or five fills of pipe tobacco per day.  From a 50 gram pouch of pipe tobacco, which is what her husband used, she ascertained that one 50 gram pouch filled approximately 12.5 pipes.  Thus, Mrs McMurchie estimated that Mr McMurchie smoked approximately 16 to 20 grams of pipe tobacco per day.  Mrs McMurchie’s evidence was that Mr McMurchie smoked pipes more frequently when he ceased smoking cigarettes.  Up until 1985, Mrs McMurchie believed that her husband was smoking at least four or five pipes each day.  

95.     The Tribunal also notes Professor Stephens’ evidence, which is not disputed, that Mr McMurchie was still smoking a pipe up until 1985.  Professor Stephens knowledge of such matters is based on him actually seeing Mr McMurchie smoking a pipe and Mr McMurchie “confessing” to him that he was smoking a pipe.  Professor Stephens noted that Mr McMurchie smoked a pipe because he believed it was not harmful to his health.  Professor Stephens was not able to quantify the extent of Mr McMurchie’s pipe smoking habit.

96.     It is true that there are inconsistencies in the medical documents which indicate a cessation of cigarettes in the 1960s with no notion of pipe smoking either concomitant with cigarette smoking or pipe smoking alone after the 1960s.  The Tribunal considers that there is a reasonable explanation for this.  Mr McMurchie was a private person and this has come from a number of credible sources in the evidence.  Neither Mrs McMurchie nor her children attended medical appointments with Mr McMurchie.  Professor Stephens acknowledged that patients often do not provide their doctors with accurate histories.  He had seen notes taken by Resident Medical Officers in relation to Mr McMurchie indicating that Mr McMurchie was not smoking, when at the time that Professor Stephens was treating Mr McMurchie, he knew that Mr McMurchie was in fact smoking a pipe.  Professor Stephens verified the existence of Mr McMurchie’s rationalisation for not mentioning pipe smoking because he believed that this type of smoking was not harmful. 

97.     Thus, the Tribunal in considering all the evidence, finds that there is sufficient evidence to support the fact that Mr McMurchie smoked cigarettes and had a war-related smoking habit initially with cigarettes.  The Tribunal also finds that despite the inconsistency and gaps in the oral and documentary evidence, that Mr McMurchie also smoked a pipe on service, as noted on paragraph 3 of Mrs McMurchie’s Statement (Exhibit A9) and that he continued to smoke the pipe and cigarettes during the same period up until 1968 whereupon he continued to smoke the pipe alone to the level of four or five pipes per day comprising of 16 or 20 grams or pipe tobacco daily until 1985.  While the documentary evidence is inconsistent with pipe smoking, the evidence of Mrs McMurchie and her son and daughter, in addition to the family friend, Mr Scilly and Professor Stephens make it almost certain and certainly beyond reasonable doubt, that he was smoking the pipe during the latter part of his service as well as cigarettes and then smoked the pipe alone. 

98. The Tribunal therefore finds that the force of all the evidence supports there being a service-related smoking habit to the requisite level and timeframe required by Factor 5(a) of the relevant Statement of Principles. Mr Marsh’s contention in relation to the pipe smoking habit being problematic is understandable. It is true in this case, as is often the dilemma in Widows’ Pension matters, that precise details and histories are even more elusive. That is the norm rather than the exception in the veterans’ jurisdiction, where decision-makers must deal with events and circumstances 20, 30 or more years ago. Without the veteran to clarify any inconsistencies or deficiencies in the evidence, decision-makers must do their best on the material available and to the requisite standard of proof. The Act is beneficial legislation and section 119 of the Act recognises such circumstances as are apparent in this case, amongst other things. While section 119 of the Act does not allow decision-makers to invent evidence to fill in gaps, allowances may be made for fading memories or the absence of documentation, as was noted in Repatriation Commission v Bey (supra) where four of five judges of the Federal Court said at 373-4:

“…in order for the hypothesis advanced by the respondent to be reasonable, there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not displace the Tribunal’s obligation to act in accordance with law...Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it – “without limiting the generality of the foregoing”.. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions”.

99.     The principles as outlined in Repatriation Commission v Bey (supra) were echoed in Mason v Repatriation Commission [2000] FCA 1409.

100. With section 119 of the Act in mind and the Tribunal’s acceptance of Mrs McMurchie as a credible witness, the Tribunal also accepts that Mr McMurchie was smoking a pipe in the later part of his RAAF service or very soon after the completion of his service. The Tribunal has already accepted that Mr McMurchie’s cigarette smoking was a war-caused smoking habit and considers the pipe smoking as part and parcel of that same war-caused smoking habit. The Tribunal is confirmed in this view noting the addictive nature of tobacco smoking, as discussed in the Repatriation Commission Guideline CM 5030 – Guideline for Claims Assessors on Smoking and Alcohol Related Conditions and Military Service and, noting the manner in which the relevant Statement of Principle’s definition of “pack years” is framed, referring to tobacco products in the form of cigarettes or other tobacco products, such as pipe tobacco in Mr McMurchie’s case, alone or in combination.

101. Thus the Tribunal finds that Mr McMurchie smoked cigarettes and a pipe on service and continued to do this until 1968, smoking up to two packets of cigarettes per day and four or five pipes per day until 1968 and thereafter, continuing to smoke four or five pipes per day until 1985. The continuation of pipe smoking post 1968 is supported by evidence from Mrs McMurchie, her son and daughter, Mr Scilly and importantly, Professor Stephens. This evidence in combination cannot be ignored. While not precise and with some inconsistencies, the Tribunal finds that it is satisfied beyond reasonable doubt that there are sufficient facts that support the raised reasonable hypothesis that Mr McMurchie has a war-caused smoking habit, including cigarettes and pipe smoking which satisfy Factor 5(a) and which links his war-caused smoking habit with the onset of adenocarcinoma of the kidney and his eventual death. Pursuant to subsection 120(1) of the Act, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient reason for determining that Mr McMurchie’s death was war-caused. Having so found, the Tribunal will not make any findings in relation to the alternate contention by the Applicant in relation to the hypothesis that the severe flying conditions in the RAAF led to Mr McMurchie having frequent urinary tract infections leading to the contention that Mr McMurchie suffered from renal cystic disease secondary to end stage renal disease before the clinical onset of adenocarcinoma of the kidney as outlined in Factor 5(e) of the Statement of Principles, Instrument Number 87 of 2001.

102. Accordingly, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to set aside the decision under review and substitutes its decision that:

(i)Mr Alan John McMurchie’s death from adenocarcinoma of the kidney was war-caused as defined in section 8 of the Act.

(ii)A War Widow’s Pension is payable to Mrs McMurchie with effect from and including 28 October 1999.

I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr M E C Thorpe, Member

Signed:         .......................................................................................
  Associate

Dates of Hearing  21 November 2001, 11 July 2002, 15 November 2002,

Final Written Submissions  20 November 2002
Date of Decision  7 May 2003
Counsel for the Applicant  Mr M Vincent

Solicitor for the Applicant  Ms S Whitaker, Dibbs Barker Gosling

Representative for the Respondent          Mr J Marsh, Departmental Advocate