Mills and Repatriation Commission - [2002] AATA 812

DECISION AND REASONS FOR DECISION [2002] AATA 812

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/244

VETERANS' APPEALS DIVISION       )
           Re      GEORGE THOMAS MILLS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date18 September 2002
PlaceSydney

Decision      The tribunal affirms the decision under review.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – ischaemic heart disease – whether smoking that caused ischaemic heart disease was service-related

Veterans' Entitlements Act 1986 ss 7(1)(c), 20(1), 120(4)

Statement of Principles 39/99 concerning ischaemic heart disease

Davenport v Repatriation Commission [1997] FCA 918
Deledio, Repatriation Commission v (1998) 49 ALD 193
Edwards and Repatriation Commission, Re (1993) 31 ALD 174
Tuite, Repatriation Commission v (1993) 29 ALD 609

REASONS FOR DECISION

18 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

This is an application to the Administrative Appeals Tribunal ("the tribunal") by George Thomas Mills ("the applicant"), born 20 April 1914, for review of a decision of the Veterans' Review Board ("the VRB") dated 25 January 2001 (T15) in which the VRB affirmed a decision of the Repatriation Commission ("the respondent") dated 3 November 1999 (T12) rejecting a claim by the applicant dated 28 July 1999 (T5) for Disability Pension in respect of ischaemic heart disease.
THE HEARING
The tribunal convened a hearing in this matter in Newcastle on 5 March 2002. Mr B Winship of Rockliffs Solicitors & Attorneys represented Mr Mills. Mr S Modder of the Department of Veterans' Affairs ("DVA") Advocacy Service represented the Repatriation Commission. The tribunal heard oral evidence from the applicant. The tribunal took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T21) provided by the respondent.
Exhibit A1 – Applicant's statement of facts and contentions, 30 October 2001.
Exhibit A2 – Applicant's smoking statement, 21 July 2001.
Exhibit R1 – Respondent's statement of facts and contentions, 25 February 2002.
Exhibit R2 – Report by Dr D O'Keefe, orthopaedic surgeon, 30 July 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The applicant's claim for Disability Pension (T5) sought coverage for a range of conditions: "back (lumbar), loss of hearing, stomach problems, heart problems". Of these, the respondent admitted only bilateral sensorineural hearing loss as a war service caused disease (T12). The applicant pressed all the rejected conditions when appealing to the VRB but to no avail. At the tribunal the applicant elected (ex A1) to pursue only the ischaemic heart disease.
The tribunal makes the following uncontroversial findings.

The applicant served in the army and rendered eligible war service from 27 August 1940 to 17 April 1941 (T12/53). The applicant did not render any operational service.
The applicant lodged a valid claim on 28 July 1999 (T5).
The date of effect of any decision favourable to the applicant would be 28 April 1999 (s 20(1) of the Act).
The standard of proof in relation to whether Mr Mills' ischaemic heart disease is a service-caused disease is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The Statement of Principles ("SoP") relevant to the determination of this matter is SoP 39/99 concerning ischaemic heart disease.

This is not a case where the veteran's claim in respect of ischaemic heart disease is to be resolved by the reasonable hypothesis standard of proof because the veteran did not engage in operational service. It is thus unnecessary to proceed through the steps delineated by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193, 206. All that is required is to ascertain whether the tribunal is reasonably satisfied that the applicant's case satisfies the criteria in SoP 39/99.
The tribunal is reasonably satisfied that Mr Mills suffers from ischaemic heart disease (as certified by Dr Zia Ul-Haque Arain, general practitioner, 11 August 1999 (T8/38)), as defined in clause 2(b) of the SoP.
The factor invoked for Mr Mills in clause 5 of the SoP was factor 5(e)(ii):
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person's relevant service are:
…
(e) where smoking has ceased prior to the clinical onset of ischaemic
heart disease,
…
equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 10 years of cessation; or
…
The tribunal finds that Mr Mills' ischaemic heart disease had its clinical onset in 1986 when Mr Mills was admitted to Wallsend Hospital with chest pains. In oral evidence Mr Mills said he had had a heart attack.
The tribunal notes that Mr Mills' evidence was that he smoked from 1940 to 1980 and consumed 20-30 cigarettes a day (ex A2; T7). In oral evidence Mr Mills said that he smoked roll-your-own cigarettes in the years after leaving the army. The tribunal takes it that the tobacco content of a "tailor made" packet cigarette is the same as for a roll-your-own. Mr Mills said that he grew to use two packets of tobacco a week which he saw as equivalent to about 160 cigarettes a week.
The tribunal notes also the evidence from Dr T Singham, a cardiologist, dated 6 June 1996 (T10) in which he reported a history of Mr Mills stopping smoking 18 years before (ie in 1978). The respondent sought to draw inferences that Mr Mills' evidence was unreliable because of this inconsistency. However, the tribunal does not consider a two-year discrepancy in an 18-year period significant. In his claim form (T5/15) Mr Mills attributed his heart problems to smoking from 1940 to 1989. This form was completed on Mr Mills' behalf but was signed by Mr Mills.
In oral evidence Mr Mills said that he stopped smoking in 1980 because of ill health in the form of severe loss of weight, shortness of breath and inability to eat. Dr Thomas, Mr Mills' general practitioner, told him to stop smoking. He did this and his health improved.
The tribunal found Mr Mills' evidence, written and oral evidence, to be substantially consistent in relation to his smoking, save for the claim form and that was completed by another person for Mr Mills, so the tribunal is reasonably satisfied that he smoked at least five pack years of cigarettes before ceasing to smoke. A "pack year" of cigarettes "equals twenty tailor made cigarettes (being the 'standard' cigarette pack contents) per day for a period of one calendar year" (SoP 39/99, clause 8). Mr Mills, in the final 10 years before he ceased smoking, says he smoked some 10-15 pack years of cigarettes. This easily meets the SoP criterion.
The SoP requires in clause 4 that the factor "must be related to any relevant service rendered by" Mr Mills. Mr Mills' "relevant service", according to clause 8, was his "eligible war service (other than operational service)". How this criterion applies in practice was usefully explained by the Federal Court of Australia in the full court decision in Repatriation Commission v Tuite (1993) 29 ALD 609. In that case Davies J said at pages 611-612:
"Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9 (1) (b), but not under ss 9 (1) (d) and 9 (2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service 'must be a cause as distinct from being part of the circumstances in or on which the cause operates.' See Marshall v Minister of Pensions [1948] 1 KB 106 at 110; W v Minister of Pensions [1946] 2 All ER 501 at 502; Minister of Pensions v Chennell [1947] 1 KB 250 at 256. An illustration of the point may be found in Goward v Commonwealth (1957) 97 CLR 355; [1957] ALR 825 where Dixon CJ, Williams, Webb and Kitto JJ held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause. Their Honours said at 364:
'It is correct no doubt that if the camp had not been near a railway line and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.'
"Of course, causation is primarily an issue of fact. As Mason CJ said in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515; 99 ALR 423 at 429-30; 12 MVR 353 at 358-9:
'The common law tradition is that what was the cause of a particular occurrence is a question of fact which "must be determined by applying common sense to the facts of each particular case", in the words of Lord Reid: Stapley [1953] AC, at 681. That proposition is supported by a long line of authority in the United Kingdom: Leyland Shipping Co [1918] AC, at 363, 369-370; 29 ALD 609 at 612; Admiralty Commissioners v SS Volute [1922] 1 AC 129, at 144; Yorkshire Dale Steamship Co [1942] AC, at 706; Alphacell Ltd v Woodward [1972] AC 824, at 847; McGhee v National Coal Board [1973] 1 WLR, at 5, 11; [1972] 3 All ER, at 1011, 1017. It is supported also by this court's decision in Fitzgerald v Penn (1954) 91 CLR 268. …
'As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn at 277 "it is ultimately a matter of common sense" and''[i]n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula.'
"If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease."
Burchett and Einfeld JJ said at page 614:
"The tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The tribunal noted than it was not sufficient simply to find a temporal connection; what was required was 'something within the applicant's military service which has caused him to start smoking'. It accepted his evidence that he had not smoked before, 'and that it was the circumstances whilst he was in camp that caused him to start to smoke'. The tribunal added: '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.' The tribunal pointed out that the respondent 'was in a milieu totally different to that which he had experienced before his call-up'. (It appears that he was actually a volunteer.)"
The tribunal was, therefore, in considering the evidence in this case looking to see what, on balance, caused Mr Mills to commence and continue smoking and whether eligible war service contributed to that cause in any relevant sense. Mr Mills gave evidence on these matters and provided a written statement.
Mr Mills told the tribunal that he had not smoked before joining the army at the age of 26. He said he had "nothing to smoke for" and he "didn't feel like it". During military training at Tamworth he was offered a cigarette by a "mate" at a pub while drinking beer. He then bought cigarettes at shops outside army camps in nearby towns. He told the tribunal that he took to smoking because he enjoyed it. He paid full price for these. He smoked Capstan brand cigarettes in packs of 10. He started with 10 cigarettes a week then went on to 20 a week after a couple of weeks. He moved on to packet tobacco just before he was discharged because it was cheaper and he preferred the taste.
Mr Mills referred to his family situation. He had left home when aged 16. He had been a rabbiter but there were no rabbits to catch during the depression. He volunteered for service, although he was not happy to make that choice. His mother was also unhappy with the decision and was "a bit upset". She was worried that Mr Mills would be sent off to fight. He said that that was what started him on smoking.
He found the army environment stressful because his mother was ill at the time. His mother was 43 and had heart problems. She had these problems since prior to Mr Mills' enlistment. In his application for review submitted to the VRB (T13) he wrote that he smoked because he was suffering from stress and anxiety as a young man away from his home and family. This was reiterated in his smoking questionnaire (T7).
He had much to do and his days were full in the army. He smoked during breaks in marching, such breaks sometimes referred to as "smoko". Quite a number of his contemporaries in the army smoked. These rests, and the attendant smoking, were part of a regular routine. He and his colleagues were not discouraged by senior officers. The officers allowed it. Mr Mills said that he did nothing interesting in the army but that he was engaged in work the whole time.
In cross-examination Mr Mills told Mr Modder that he enjoyed the army. He liked the exercise and, in that regard, it was like rabbit trapping.
Mr Winship suggested that when another soldier offered Mr Mills a cigarette that led Mr Mills to smoking more regularly and developing a habit. His consumption then increased dramatically in camp life. Mr Winship put the explanation down to the very different life circumstances Mr Mills experienced in the army. He had not previously lived amongst a group of men. Tobacco smoking was a cultural artefact of such a male existence at the time.
Mr Modder submitted that army camp life was unlikely to have prompted Mr Mills to smoke because of its rigours. The rigours of rabbit trapping would have been greater. He said that general smoking by others around the applicant was not a cause of his smoking. For Mr Mills smoking was a matter of choice and attitude. He took his first cigarette in a social context, off the army base. So far as the health problems of Mr Mills' mother were concerned, these had nothing to do with the army and, insofar as they were a cause of the stress that brought on smoking, that cause was not linked to the army. Mr Modder called the tribunal's attention to the short period of Mr Mills' service. The sole connection between the army and Mr Mills taking up smoking was temporal.
In the respondent's statement of facts and contentions reference was made to Mr Mills' statements that he had been stressed in the army because he was young and away from home. It was pointed out that Mr Mills had in fact left home at 17 (according to ex R1) and had lived away from home for nine years before enlistment. In any event, most of his time in the army was spent at Tamworth, relatively close (some 160 km) to Denman where his mother lived.
Mr Modder referred to two decided cases. In Re Edwards and Repatriation Commission (1993) 31 ALD 174 the tribunal held that there was a more than temporal connection between service and smoking where a veteran commenced smoking through boredom. The tribunal said at pages 175-176, "[W]e note that there is nothing unusual in the history of a veteran smoking on service because of boredom …".
He referred to Davenport v Repatriation Commission [1997] FCA 918 where Heerey J considered a tribunal decision in a reasonable hypothesis case. Heerey J held that, in deciding whether it was satisfied beyond reasonable doubt that a stroke was not war-caused, it was legitimate for the tribunal "to look at the inherent probability or otherwise of the applicant's case and take into account the fact that his case involved isolating a very short period of his naval service as the period in which the temporal connection between his smoking and war service was established". Mr Mills served in the army for only eight months.
The tribunal finds on the evidence before it that there was no more than a temporal connection between Mr Mills commencing to smoke and his army service. While an army colleague offered Mr Mills his first cigarette, that was in a social environment and Mr Mills' evidence was overwhelmingly that he went on to smoke heavily because of his worries about his mother, worries that would have existed in his life outside the army. The army environment, where smoking was the norm, while no deterrent to Mr Mills smoking, was not a cause of it. It merely made it easier for him to smoke as he wished. This was not a case where the risks, dangers and uncertainties of army service caused stress which led to smoking. Nor was it a case where camp boredom led Mr Mills to take up smoking. On his own evidence he enjoyed the army and was not bored.
CONCLUSION
This last finding means that the tribunal is not reasonably satisfied that Mr Mills' smoking was related to his relevant service in accordance with clause 4 of the SoP. This means that his ischaemic heart disease, which was causally connected to his smoking, was not a war service related disease.
DECISION
The tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  5 March 2002
Date of Decision  18 September 2002
Counsel for the applicant         Mr B Winship
Solicitor for the applicant         Rockliffs Solicitors & Attorneys
Counsel for the respondent     Mr S Modder, DVA Advocacy Service
Solicitor for the respondent     Mr J Marsh, DVA