Moffett and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 249
•19 April 2016
Moffett and Repatriation Commission (Veterans’ entitlements) [2016] AATA 249 (19 April 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/2246
Re
Lindsay Moffett
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 19 April 2016 Place Brisbane The decision of the Commission as varied by the Board is affirmed.
...........................[sgd]...........................................
Deputy President I R Molloy
Catchwords
REPATRIATION COMPENSATION - Whether conditions defence-caused – whether smoking habit arose out of or was attributable to defence service – prior history of smoking cigarettes – decision of the Repatriation Commission as varied by the Veterans’ Review Board affirmed
Legislation
Veterans Entitlement Act 1986 (Cth)
Cases
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
Deputy President I R Molloy
19 April 2016
Lindsay Wayne Moffett (“the Applicant”) served twenty years in the Australian Army. He joined on 6 November 1979, aged 17, and was discharged on 15 November 1999.
On 14 July 2014 the Repatriation Commission (“the Commission”) refused his claims for medical treatment and pension for ischaemic heart disease, osteoporosis, depressive disorder, hypertension, renal artery atherosclerotic disease, hyperlipidaemia, anxiety disorder, diabetes mellitus with PVD/retinopathy and neuropathy on the ground that the conditions were not defence-caused.
On 17 February 2015 the Veterans’ Review Board (“the Board”) decided to vary the diagnosis of diabetes mellitus with PVD/retinopathy and neuropathy to the separate conditions of diabetes mellitus, atherosclerotic peripheral vascular disease, macular retinopathy and peripheral neuropathy, and affirmed the Commission’s decision in relation to those conditions as varied as well as the decision in relation to ischaemic heart disease, osteoporosis, depressive disorder, hypertension, renal artery atherosclerotic disease, hyperlipidaemia and anxiety disorder.
Mr Moffett applied to the Tribunal on 8 May 2015 for a review of the decision of the Commission as so varied. At the hearing there was no dispute about Mr Moffett’s diagnoses as found by the Board. There was also agreement that Mr Moffett’s conditions were caused directly or indirectly by his cigarette smoking. The only issue before the Tribunal was whether his conditions were defence-caused.
Under the Veterans Entitlement Act 1986 (Cth) (“the Act”), s 70(5)(a), death, injury or disease is defence-caused if it “arose out of or was attributable to” any defence service. In Roncevich v Repatriation Commission (2005) 222 CLR 115 the High Court, at [27], said the use disjunctively of the expression “arose out of” and “attributable” in s 70(5)(a) of the Act manifest a legislative intention to give “defence-caused” a broad meaning.
On behalf of Mr Moffett it was submitted that his smoking habit arose out of or was attributable to his defence service. Evidence was given by Mr Moffett; his wife, Wendy Moffett; his mother, Marian Jean Moffett; his sister, Narelle Elliott; and his brother, Graham Glenn Moffett. Under s 120(4) of the Act the standard of proof is reasonable satisfaction.
Mr Moffett was born on 25 August 1962 at Murgon. His father worked for Forestry as a grader driver, and the family lived in a relatively remote location in accommodation provided by his father’s employer.
Mr Moffett left school half way through Grade 11 in 1978. He worked for Queensland Cement for a short time and continued to live at home until he joined the Army in late 1979.
Mr Moffett’s father smoked. Mr Moffett said that when he was still at school he would pinch two or three of his cigarettes at a time. He said he did this every three or four days and shared them with his younger brother Graham. Mr Moffett said that after leaving school he stopped smoking and did not smoke for a year before joining the Army.
Graham Moffett is about two years younger than the Applicant. He said the Applicant would give him some of the cigarettes he pinched, but he, Graham, would not always smoke them. He said the Applicant took cigarettes every three or four days, but definitely not every day. He would smoke them away from the house. He did not agree that the Applicant smoked to impress him.
Graham Moffett said he did not regard the Applicant as a regular smoker, or as having a smoking habit, before he joined the Army. He said at the very most the Applicant may have been smoking a couple of cigarettes a day. He said the Applicant had no way of getting cigarettes other than stealing them from their father.
The Applicant’s sister, Narelle Elliott, who is a few years older than the Applicant, recalled her father rolled his own cigarettes. She remembers him complaining that someone had been taking his tobacco. She did not know who it was. She recalled the Applicant joining the Army after leaving school. She did not recall him smoking at all before he joined the Army.
The Applicant’s mother said the Applicant did not smoke before he joined the Army. She was not aware of anyone taking her husband’s cigarettes. She said none of the children smoked at home.
Mr Moffett’s Entry Medical History Questionnaire, dated 6 November 1979, signed by him, includes question 14(b), “Do you smoke tobacco”, which has been answered yes. The comments in respect of that answer are “8 cigarettes daily”.[1]
[1] Exhibit 1, T-documents, T 3 “Entry Medical History Questionnaire”, Folio 8.
In evidence Mr Moffett was taken to a Smoking Questionnaire dated 4 March 2014[2] and a Claimant Report – Smoking dated 3 June 2014.[3] Each document was prepared in respect of his claim. It was common ground that the forms were not filled out by the Applicant personally but they appeared to be signed by him.
[2] Exhibit 1, T-documents, T 6 “Smoking Questionnaire – Claimant”, Folio 47-48.
[3] Exhibit 1, T-documents, T 18 “Claimant Report – Smoking”, Folio 115-117.
During the hearing an issue arose whether the Applicant had actually signed each form particularly in view of some differences in the signatures. The Applicant’s wife said that the shaky appearance of one of the signatures could be because Mr Moffett had recently suffered a heart attack.[4] She also identified a signature as looking like her husband’s, although that was the one which Mr Moffett had been questioning.[5]
[4] Exhibit 1, T-documents, T 6 “Smoking Questionnaire – Claimant”, Folio 48.
[5] Exhibit 1, T-documents, T 18 “Claimant Report – Smoking”, Folio 117.
No reason was offered why anyone would have forged Mr Moffett’s signature on either form, and the issue had not previously been raised. In the end Mr Moffett said that he must have signed each of the forms. I am satisfied that that is correct.
Each form asks when did you first start smoking on a regular basis, seeking as precisely as possible, a day, month and year. In each case the answer is 1/7/1978. To the question when did you stop smoking permanently, the response in each case is 22/1/2014. Mr Moffett agreed that the latter date is correct because it is the date he suffered a heart attack. However he was adamant that the date given as the start of his regular smoking is incorrect.
I do not find the forms provide much assistance on this issue. The first form includes an obvious mistake by naming Wendy Moffett as the veteran. The form has therefore not been checked carefully before Mr Moffett signed it. It could be that it contains other less obvious inaccuracies which have been carried forward into the second form.
Furthermore, each form has a question such as why did you start smoking regularly, to which the answer includes a reference to peer pressure whilst in the Army. That response does not sit well with the answer that Mr Moffett started smoking regularly sixteen months before he enlisted. The date 1 July 1978 could have been chosen because it was around the time Mr Moffett left school, but I am not satisfied it was the date he nominated as when he started smoking regularly.
I am satisfied, however, that Mr Moffett was smoking when he entered the Army. I do not accept that he stopped smoking after he left school and did not recommence until he joined the Army. That may be something he has come to believe. His wife referred to deterioration of his memory. In any event it does not accord with the information on his Entry Medical History Questionnaire, my understanding of his brother’s evidence, and my assessment of Mr Moffett’s own evidence on this issue.
Mr Moffett said when he joined the Army others would offer him cigarettes. The instructors were smokers, and during breaks the instructors would stand with the other smokers. He said people would be lighting up every chance they got. He said he felt he had to join the group of smokers to fit in. He said the non-smokers were separate. He said he was offered cigarettes which he accepted and then went to the canteen and bought them himself.
The Claimant Report – Smoking records that between November 1979 and January 1980, during basic training, Mr Moffett was smoking 50/week (2 packets).[6] His rate of consumption, according to the report, increased over the years attributed variously to stress from the job, depressed mood, and continued peer pressure. Between August 1990 and January 2014 the reasons for change are “stress of discharging and medical conditions”. Mr Moffett agreed that the information to fill out the report was provided by him.
[6] Exhibit 1, T-documents, T 18 “Claimant Report – Smoking”, Folio 117.
In the result I am not satisfied that Mr Moffett’s smoking habit arose out of or was attributable to his defence service giving those expressions their broad meaning. I am satisfied that when Mr Moffett entered the Army his cigarette consumption had progressed beyond the experimental stage. It appears he smoked because he enjoyed it.
I accept that by smoking after he joined the Army he felt better able to fit in with the other recruits and the instructors. However, if there was pressure to smoke, as he describes, I do not think it significantly influenced his conduct. He already had a taste for cigarettes and he would have naturally joined the smokers.
Moving out of home, and receiving a regular income, gave him the opportunity and ability to fulfil his desire to smoke. His increased consumption over the years was due to a combination of factors not least of all personal events in his life. Mr Moffett’s Army service provided a temporal connection to his on-going smoking habit but I am not satisfied there was the necessary causal connection.
The decision of the Commission as varied by the Board is affirmed.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy .......................[sgd].................................
Associate
Dated 19 April 2016
Date of hearing 11 March 2016 Counsel for the Applicant Anthony Harding Solicitors for the Applicant Terence O'Connor Advocate for the Respondent Bruce Williams
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