Milbourn and Repatriation Commission

[2008] AATA 959

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 959

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4591

VETERANS' APPEALS DIVISION		)
Re		HAZEL MILBOURN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr John Campbell, Member

Date28 October 2008

PlaceSydney

Decision The tribunal affirms the decision under review.

...................[Sgd]....................

Ms Robin Hunt
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS –  pensions and entitlements – widow’s pension claim – death of veteran from small cell metastatic carcinoma of the lung – smoking history – claim linking smoking and death to war service – on balance not satisfied of link to service – decision affirmed.

Veterans’ Entitlements Act 1986 (Cth) ss 13(1), 120(4), 120B

Statement of Principles concerning malignant neoplasm of the lung No. 18 of 2006

Hayes v Repatriation Commission [2005] FMCA 125

Re Martyn and Repatriation Commission [2006] AATA 895

Repatriation Commission v Tuite (1993) 39 FCR 540

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

28 October 2008 Ms Robin Hunt, Senior Member
Dr John Campbell, Member          

introduction

1.      Mrs Milbourn is the widow of a veteran who served in the Australian Army between 13 January 1942 and 1 February 1943. The late Mr Milbourn suffered no accepted war-caused disabilities and died in 1987 of small cell metastatic carcinoma of the lung. It was not until 2006 that Mr Milbourn’s widow sought a pension on the basis that her late husband’s death was attributable to his war service due to a war-caused smoking habit.

issue

2.      The issue is whether Mr Milbourn’s death was related to his period of army service. If we are satisfied his death was sufficiently related to his eligible service, Mr Milbourn’s widow will be entitled to a widow’s pension.

consideration and findings

3.      Mr Milbourn died on 2 November 1987 in Royal North Shore Hospital when he succumbed to small cell metastatic carcinoma of the lung. Mrs Milbourn claimed that her late husband’s war-caused smoking contributed to his death. The decision we are reviewing is the reviewable decision of the Veterans’ Review Board (‘the VRB’), made on 7 August 2007, which confirmed the original delegate’s decision refusing a war widow’s pension because of the finding that Mr Milbourn’s death was not related to his war service.

4.      The parties agree on the background facts preceding this claim.  They agree on the cause of death and they agree that Mr Milbourn smoked when he was in the army although evidence about the periods when Mr Milbourn smoked is not entirely clear.

5.      Mrs Milbourn told us that she did not know her late husband until after his period of service but that he had told her he smoked when he was 18 and stopped for a time, aged 21, before he resumed smoking in the army. Mrs Milbourn believes her late husband smoked during service due to peer pressure, availability of tobacco in the army and stress related to service. Mrs Milbourn recollected that her late husband told her he and his army colleagues would smoke together and that he joined in for the company. He felt encouraged to smoke when the army gave him cigarettes. Smoking also eased his anxiety about the possibility of having to serve overseas. Mrs Milbourn said her late husband tried to give up smoking several times but these attempts never lasted more than a few weeks. She tried unsuccessfully to persuade him to stop smoking and he would try not to smoke in her presence. Eventually, he stopped in 1977 about 10 years before he died of lung cancer.

6. Entitlement to the widows’ pension arises under subsection 13(1) of the Veterans’ Entitlements Act 1986 (‘VE Act’) if a veteran’s death was war-caused. The standard of proof for our decision, if the death was so caused, is reasonable satisfaction as set out in subsection 120(4) of the VE Act. Section 120B modifies subsection 120(4) insofar as it requires us to take into account any Statement of Principles (SoP) that bears out this connection. We also note that, to be war-caused, a condition must be an integral part of the kind of death suffered but there is no need to show “material contribution”. See ReMartyn and Repatriation Commission [2006] AATA 895 and Hayes v Repatriation Commission [2005] FMCA 125.

7.      The condition bringing about death in the present case is not disputed and the remaining question is whether Mr Milbourn’s smoking, which led to death by lung cancer, was so related to army service as to meet the tests set out in a relevant SoP. There is a SoP concerning malignant neoplasm of the lung, No. 18 of 2006. Counsel for Mrs Milbourn argued that Mr Milbourn’s death came within factor 6(a)(ii) of the SoP. This factor requires that, on the balance of probabilities, death from malignant neoplasm of the lung, including malignant neoplasm caused by small cell carcinoma, must be connected with the circumstances of a person’s relevant service.

8.      We note that the Full Federal Court held in Repatriation Commission v Tuite (1993) 39 FCR 540, that it was not sufficient simply to find a temporal connection between a serviceman’s smoking and service but that there must be "something within the … military service which has caused him to start smoking". As the court noted, the tribunal accepted that Mr Tuite had not smoked before, "and that it was the circumstances whilst he was in camp that caused him to start to smoke". Some of those circumstances were that “cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military." Kirby J in Roncevich v Repatriation Commission (2005) 222 CLR 115 at [55-56], also stressed that there needs to be a causal connection between service and the injury or disease.

9.      In the present case, we have no direct evidence; we have only a reference to smoking included in a failed claim Mr Milbourn made in 1983 for acceptance as service related the disability of bronchiectasis, and Mrs Milbourn’s recollections of what Mr Milbourn told her of his smoking during army service. Mrs Milbourn gave evidence that she met her late husband in 1945 when they were both aged 25 and Mr Milbourn was no longer serving. Her discussions with Mr Milbourn took place between 1945 and 1987, after he had completed his service, having been discharged in February 1943. Mrs Milbourn gave further evidence that her late husband had been a happy go lucky person who was well liked and of an optimistic nature and that he rarely talked about his experiences in the army.

10.     The transcript of proceedings before the VRB, which Mrs Milbourn was unable to recall when appearing before us, shows that Mrs Milbourn gave some evidence to the VRB on 7 August 2007 about her late husband’s smoking. The reviewable decision records that her evidence was given by telephone. The transcript shows that Mrs Milbourn gave evidence that her late husband told her he used to smoke in the army and that he liked to stop for a smoke when riding a motor bike during his time in the army. She recalled that he also said he would stop to buy cigarettes. She thought he had ceased to smoke about 10 to 15 years before he died but the damage had already been done. Mrs Milbourn was never a smoker herself.

11.     There is a report by a medical practitioner, who assessed Mr Milbourn for a bronchiectasis claim, dated 29 February 1984. It notes at page 1 that Mr Milbourn had a chronic productive cough. The doctor recounts a history of youthful bronchial problems, including a bout of laryngitis in 1942, and that two experienced chest physicians examined him at the final medical board the same year on the basis of x-ray changes and his history, but formal diagnosis of bronchiectasis was not made until 1959. In this history, no mention was made of smoking.

12.     Another report on file is dated 29 August 1983. On page 3 of this report, there are four questions about tobacco. For “age started”, the information is “18 yrs, cigarettes”. For “average daily consumption” is added “less than 20 cig/day”. “Still smoking” is crossed out and “if not when stopped?” is answered “21 yrs”. This report does not, in our view, support a finding that Mr Milbourn smoked during his eligible service but rather indicates that he had stopped when he was aged 21. Copies of a mobilization attestation form and death certificate before us indicate Mr Milbourn was born on 16 August 1920, so he was aged 20 in 1941 when he enlisted. This accords with Mrs Milbourn’s recollection of what her late husband told her but the report of 1983 does not support any finding that Mr Milbourn resumed smoking in the army let alone a finding that he developed a war-caused habit while he was in the army.

13.     We have no other medical records apart from the clinical notes kept at Royal North Shore Hospital when Mr Milbourn was admitted on 3 March 1980 and again on 18 July 1980. At the time of his second admission, he is recorded as saying he stopped smoking 12 years ago but there is no record made of when he started. Mr Milbourn was admitted again in 1987 because of his terminal condition. As counsel for Mrs Milbourn conceded, her husband gave different accounts of his smoking to the hospital as to when he had stopped. This may be explained by the various attempts Mrs Milbourn said he made to stop from time to time throughout their married life. The notes do not record when he commenced or re-commenced smoking.

14. In our opinion, the material before us is unclear about a temporal connection with army service and even less clear about any greater relationship to army service. When forming an opinion about any relationship to service, on balance, we are not satisfied that Mr Milbourn had a war-caused smoking habit. We do not consider that Mr Milbourn’s death meets the requirements of factor 6(a)(ii) in demonstrating a relationship to service. Further, clause 5 explains that, subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. In consequence, we are not reasonably satisfied on the balance of probabilities in accordance with subsection 120(4) that Mr Milbourn’s death was war-caused. This means his widow’s claim must fail.

decision

15.     The tribunal affirms the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr John Campbell, Member

Signed: ........................[Sgd].............................
  Jennifer Wong, Associate

Date/s of Hearing  24 October 2008
Date of Decision  28 October 2008
Counsel for the Applicant         M Vincent
Solicitor for the Applicant          Kemp & Co Lawyers
Solicitor for the Respondent     Sparke Helmore Lawyers