Montie Finn and Repatriation Commission
[2013] AATA 266
•1 May 2013
[2013] AATA 266
Division VETERANS’ APPEALS DIVISION File Number
2012/0208
Re
Montie Finn
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 1 May 2013 Place East Maitland, New South Wales The decision under review is affirmed.
.....................[sgd]............................................
Mr S. Webb, Member
VETERANS’ ENTITLEMENTS – claim for disability pension – emphysema – ischaemic heart disease – British nuclear test defence service – reasonable hypothesis standard of proof – statements of principles – smoking – anticipatory causation – hypotheses linking claimed diseases with an increase in the rate of smoking prior to an event during eligible service – hypothesis of anticipatory causation not supported by present materials – need to consider alternative hypothesis of connection to service – alternative hypothesis not raised on present materials – hypotheses not reasonable – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 69B, 119, 120, 120A, 196B, 196G
Beale v AAT and Repatriation Commission (1998) 50 ALD 895
Byrnes v Repatriation Commission (1993) 177 CLR 564
Connors v Repatriation Commission [2000] FCA 783
Critch v Repatriation Commission (1996) 43 ALD 574
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
McMillan and Ors v Repatriation Commission (1998) 81 FCR 45
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Glanville [2010] FCA 405
Repatriation Commission v Hill [2002] FCAFC 192
Statement of Principles concerning chronic obstructive pulmonary disease, Instrument No 30 of 2004
Statement of Principles concerning ischaemic heart disease, Instrument No 89 of 2007
REASONS FOR DECISION
Mr S. Webb, Member
1 May 2013
Montie Finn served in the Royal Australian Air Force. He was posted to the Experimental Missile Unit near Woomera (Emu Field) in South Australia and served during the British nuclear test program in 1953. He smoked cigarettes and he drank alcohol during and after the period of his service. In 2010, Mr Finn claimed disability pension for solar keratosis, malignant melanoma, emphysema and ischaemic heart disease that he attributed to defence service. The Repatriation Commission determined to reject each claim. These decisions were affirmed by the Veterans’ Review Board. Mr Finn applied for review.
At the outset of the hearing, I was informed that Mr Finn does not press his claim or seek to challenge the decision under review in respect of solar keratosis and malignant melanoma – the only issues in dispute relate to emphysema (however described) and to ischaemic heart disease. As only these diseases were addressed during the hearing, I will proceed on that basis.
There is no dispute that Mr Finn has British nuclear test defence service from 15 to 21 October 1953 and it is in relation to this period, alone, that he pressed his claim. Having regard to Mr Finn’s service records and to s 69B of the Veterans’ Entitlements Act 1986 (Cth) (the Act), this is correct and I so find. This period constitutes the only period of eligible service for present purposes under the Act, even though the overall period of Mr Finn’s defence service covers a longer period.
I was also informed that there is no dispute about the diagnosis of ischaemic heart disease, with a clinical onset in or about 1994. That, too, is consistent with the materials before me and may be accepted applying the reasonable satisfaction standard of proof under s 120(4).
The issue of diagnosis and clinical onset in respect of emphysema is less clear. Mr Finn appears to have suffered from progressive respiratory symptoms that have been variously described as asthma with an alleged clinical onset in 1990[1] or in 1954[2], chronic bronchitis commencing in the 1960s[3], chronic lung disease[4], emphysema[5], and chronic obstructive pulmonary disease[6] possibly involving extra-pulmonary restriction through loss of functioning alveoli or interstitial lung disease on examination in 2011[7]. On the 10 February 2011 report of Dr Cassim, a specialist respiratory physician, Mr Finn had been experiencing respiratory symptoms for 57 years (implying disease onset in 1954) with progressive worsening over the past 20 years (from 1991)[8].
[1] See T12 folio 83 and T14 folio 90.
[2] See T13 folios 84 and 85.
[3] See T8 folios 43 and 44.
[4] See T15 folio 92.
[5] See T16 folio 97.
[6] See T 16 folio 98.
[7] See T17 folio 99.
[8] T16.
Mr Finn’s evidence is that he was first diagnosed with emphysema in the early 1990s and he ceased employment work soon thereafter. Even though there is no contemporaneous medical evidence to support this, it is consistent with Dr Cassim’s assessment in 2011, which I accept, in respect of emphysema associated with chronic obstructive pulmonary disease and the worsening of Mr Finn’s respiratory symptoms over the past 20 years. On the balance of the available evidence, I am reasonably satisfied that the diagnosis of emphysema associated with chronic obstructive pulmonary disease is correct and that the clinical onset of this disease was in or about 1991.
In order to determine Mr Finn’s claim for a disability pension in respect of ischaemic heart disease and emphysema, the key issue for determination is whether each disease arose out of or is attributable to his eligible British nuclear test defence service, under s 70 of the Act. If so, he will be entitled to disability pension and the rate of the pension will need to be determined.
Having regard to s 5Q(1A), the applicable standards of proof for a pension claim in respect of British nuclear test defence service are set out in ss 120(2) and (3), with reference to s 120A. Essentially, the causation issue is to be determined applying the reasonable hypothesis standard. Thus, if a hypothesis causally connecting the diseases under claim and Mr Finn’s period of eligible service is raised on the materials before me and, without finding facts, the hypothesis is consistent with the template set out in any applicable Statement of Principles determined by the Repatriation Medical Authority under s 196B, the hypothesis will be reasonable and the claim will succeed unless it is disproved, beyond reasonable doubt. The oft quoted four-step methodology that was discussed in Repatriation Commission v Deledio[9] is a helpful guide, by which I am bound.
[9] (1998) 83 FCR 82 at 97-98.
Subject to conformity with any applicable Statement of Principles, a reasonable hypothesis “is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities”[10].
[10] Repatriation Commission v Bey (1997) 79 FCR 364 at 372-373; also see East v Repatriation Commission (1987) 16 FCR 517 at 533.
Mr Finn raises one hypothesis in a number of iterations applying to each disease under claim. He says that his ischaemic heart disease and his emphysema are attributable to smoking and that his smoking was causally attributable, in part at least, to the period of his British nuclear test defence service.
I note in passing that Mr Finn expressly walked away from his earlier claims in respect of alcohol consumption and pressed no claim on that basis before me. Having reviewed the present materials, it appears to me that there is not sufficient material on which to raise a hypothesis connecting his consumption of alcohol with the period of his eligible service. That being so, it is not necessary to proceed any further on this point.
Mr Finn says that he first smoked when he was rewarded with cigarettes as a 12-year old boy employed on a paper run, but he ceased smoking when that employment ended. He maintains that he resumed smoking in March 1953 at the age of 22, when he was posted to Emu Field (via Woomera) from Williamstown. He says that he was bored and it was part of the service culture at the time, as he and others were supplied with cigarettes and alcohol by the RAAF[11]. In his submission, it is not significant that he resumed smoking on service in February or March 1953; the significant point is that he increased the amount he smoked ahead of the British nuclear test in October 1953 and that as a result he smoked at the elevated level for many years thereafter.
[11] Exhibit A2.
Mr Finn’s evidence is that he experienced nervousness and stress ahead of the British nuclear tests and that this nervous anticipation caused him to increase his smoking – the more nervous he became, the more he smoked. He says that he did not want to be exposed to the atomic test following what he had heard about such tests on the Montebello Islands in 1952 and the atomic bombing of Nagasaki in 1945.
Mr Finn asserts that he was informed about his role in the British nuclear testing program after he was posted to Emu Field – he was not aware of this to start with. He maintains that his smoking increased from five to ten cigarettes per day to 20 or so cigarettes per day in the period ahead of the atomic test that was scheduled to take place on 15 October 1953. He maintains that delays in the conduct of the test, due to poor weather for example, and related activities added to his stress and to the amount he smoked.
Mr Finn says that he continued to smoke at this elevated level for many years, until at least 1980, when he reduced his smoking intake before finally ceasing in the early 1990s. He asserts that he consumed more than 25 pack years of cigarettes and that this is causally related to his eligible service.
It is correctly agreed that the Repatriation Medical Authority has determined Statements of Principles under s 196B in respect of each of the diseases under claim – Statement of Principles number 89 of 2007 concerning Ischaemic Heart Disease and Statement of Principles number 30 of 2004 concerning Chronic Bronchitis and Emphysema.
I note in passing that the Repatriation Medical Authority has given notice under s 196G that it intends to review the Statement of Principles concerning Chronic Bronchitis and Emphysema, but the review has not yet been finalised. Under s 120A(2), this does not bar me from proceeding to decide Mr Finn’s claim, on review[12].
[12]McMillan and Ors v Repatriation Commission (1998) 81 FCR 45 at 51; Beale v AAT and Repatriation Commission (1998) 50 ALD 895
Mr Finn asserts that there is material pointing to each element of the hypothesis he has outlined, and that it is consistent with the templates set out in the relevant Statements of Principles. This, he submits, renders the hypothesis reasonable. He maintains that the evidence given by Professor Mattick, a drug and alcohol expert, indicates that the hypothesis is not too tenuous, remote or fanciful to be reasonable.
Finally, Mr Finn asserts that there is not sufficient probative evidence to disprove the hypothesis, beyond reasonable doubt. Thus, in his submission, he qualifies for a disability pension and the decision under review should be set aside and the rate of the pension should be determined.
In order to properly address these matters, the first step is to consider whether a hypothesis connecting Mr Finn’s emphysema or his ischaemic heart disease with his eligible service is raised on the materials. This is a question of fact[13].
[13] Repatriation Commission v Bey (1997) 79 FCR 364 at 373.
For this purpose, it is necessary to have regard to all of the materials that are before me.[14] It is not necessary to reject or evaluate the weight or acceptability of the materials or to resolve conflicts at this stage[15] – “the material … must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable”[16]. Nevertheless, while it may be accepted that, by definition, a hypothesis exists in the realm of unproved possibility, if the hypothesis assumes the existence of a ‘fact’, without resorting to proof, the assumed ‘fact’ must be pointed to by the materials before the decision-maker[17] – sheer unsupported possibility is not sufficient[18]. If an essential link in the hypothetical chain linking the disease suffered by the veteran and the circumstances of his relevant service is not pointed to or raised by the material, and it is merely asserted or left open, then the hypothesis is not raised[19]. In some cases, the occurrence or existence of a ‘fact’ may be inferred, but an inferred fact cannot arise in the abstract – it must be “reasonably open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis”[20].
[14] Repatriation Commission v Codd [2007] FCA 877 at [12].
[15]Repatriation Commission v Deledio (1998) 83 FCR 82 at 97; Dunlop v Repatriation Commission [2003] FCAFC 201 at [35].
[16] Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-570.
[17] Repatriation Commission v Glanville [2010] FCA 405 at [57]; Connors v Repatriation Commission [2000] FCA 783 at [19].
[18] Repatriation Commission v Bey (1997) 79 FCR 364 at 373.
[19] Dunlop v Repatriation Commission [2003] FCAFC 201 at [34]; Repatriation Commission v Hill [2002] FCAFC 192 at [54]-[55].
[20] Critch v Repatriation Commission (1996) 43 ALD 574 at 577.
Unfortunately for Mr Finn, it is on this point that his claim falters.
The hypothesis for which Mr Finn contends is that –
(a)he experienced nervousness and stress in anticipation of the British nuclear tests;
(b)the anticipatory anxiety caused him to increase the rate of his smoking to 20 or more cigarettes per day;
(c)the increased rate of smoking resulted in habituation at the increased level;
(d)the habituation caused him to smoke at the increased level for many years;
(e)this resulted in him suffering emphysema and ischaemic heart disease.
When all of the materials are considered, the essential element linking habituation to smoking 20 or more cigarettes per day and Mr Finn’s eligible service is not pointed to or raised by the materials before me.
Professor Mattick’s evidence is that a period of three to 12 months would be required to habituate Mr Finn to smoking that number of cigarettes each day. The Professor gave helpful evidence concerning the processes by which a cigarette smoker may become habituated to nicotine, highlighting two important factors. Firstly, habituation to nicotine is not rapid – in order to become habituated, a person would need to persist with smoking over a period of months; and secondly, there is a bio-chemical explanation for a habituated smoker smoking 20 or more cigarettes per day – in order to maintain a constant level of nicotine in the blood, the habituated smoker would need to smoke a cigarette roughly every 40 minutes while awake during a normal day, or approximately one pack of cigarettes per day.
In Professor Mattick’s expert opinion, anticipatory anxiety about a future event may stimulate a person to smoke more cigarettes, but this would be a periodic phenomenon that would not lead to increased habituation unless it was maintained for a long period of at least three months. Under cross-examination, Professor Mattick accepted that increased stress may have an effect on the rate of nicotine absorption, but this was not clearly understood and, on the present state of scientific knowledge, it would be speculative to suggest that the absorption rate would be increased significantly, to the extent that an increased rate of stress-related smoking might reduce the period in which increased habituation to nicotine may occur. This point was not pressed and there is no further material before me quantifying any possible increase in the rate at which nicotine may be absorbed, or any possible reduction of the period in which habituation may occur, under stressful circumstances.
While not precise, Mr Finn’s evidence is that his smoking increased “in the days leading up to the blast”[21] or “ahead of” the test on or about 15 October 1953. There is very little material before me that points to the duration of this period – whether it extended for days or weeks or for a longer period of months prior to the scheduled test.
[21] Exhibit A3 at [3].
There is no material pointing to when Mr Finn was first informed that he would be involved in the nuclear testing or when the rate of his smoking increased thereafter. Mr Finn’s oral evidence is that he was informed he would be involved in the nuclear testing program by a General some time after his arrival at Emu Field in March 1953, but he could not recall when this occurred.
There is only scant material pointing to when he increased the rate of his smoking as a result of anticipatory stress other than his own account of smoking more in the lead-up to the scheduled test –
19 days prior to the bomb blast, on the 26th and the 30th of September and the 6th of October 1953 a series of experimental tests started in an area known as “K” site…
During the nine days leading to the bomb testing on Saturday 15th October 1953 at Emu Field, with all the fall out floating about from the above tests, we were instructed to continue on the roads, clean up and repair our machinery, pack up and load what was to go from the site and dismantle any tents, mess halls, anything that is not going to be used.
During this time, everyone was nervous, as they had already done some testing, (as above) but everyone was concerned about what the conditions were at the moment, and what was to come. We would all get together and smoke cigarettes and drink beer every night, and nervously talk about what was going to happen, considering they called off the testing a couple of times due to the weather conditions.
…[22]
[22] Exhibit A1.
Mr Finn’s recollection is not clear and his description of the contributing factors he experienced at Emu Field sheds little further light on this point –
Upon arrival at Emu Fields we were greeted with beer and cigarettes. I didn’t start smoking until early March ‘53, I put this down to the isolation of the place, the conditions we worked and lived with, the stress of what was going to happen with the bomb and the pressure from the other men who were smoking and who kept offering cigarettes to me all the time.[23]
Mr Finn clarified this point in his oral evidence – he started smoking again in March 1953 on being posted to Emu Field for the reasons stated, but this occurred before he knew that he would be involved in the nuclear test program.
[23] Exhibit A2, page 1.
I note the Smoking Questionnaire Mr Finn completed in 2010, in which he answered the question “Why did you start smoking on a regular basis?” with “Worried about being at an atomic test site”[24].The account given to the Veterans’ Review Board[25] by Mr Latimore, advocate for Mr Finn, suggests a proximate relationship between Mr Finn smoking more and the scheduled nuclear tests –
MR LATIMORE: Now, he said that he recommenced his smoking in 1953, in Emu Field…. Talking to him this morning, he said, look, he took up smoking during that period of time. He – obviously after 60 years, wasn’t able to point to a particular day, but he did tell me that he increased his smoking in the days immediately before the bomb was due to go off, due to, what I would think, was an understandable concern about his own and his mates’ safety.[26]
[24] T4 folio 15.
[25] Exhibit R2.
[26] Exhibit R2, page 3.
Professor Mattick reported the following history –
5.2 I inquired when his smoking pattern changed thereafter [after March 1953] and he said that he was “worried about the bomb… when it was getting close… nine days before… I wondered what was going to happen… I heard of Montebello Island and I was worried about cancer…”
5.2.1 He said that he increased his smoking at the time when he was worried about the adverse effects of any atomic testing on him and his health “so that at the end I was smoking 20 cigarettes a day”.[27]
[27] Exhibit R3, page 4.
Thus, considering the whole of the material, the following can be said about the posited hypothesis. The materials point to Mr Finn resuming smoking in March 1953 at a time when he was not aware that he would be involved in the nuclear test program. Before me, Mr Finn did not contend that he resumed smoking in March 1953 because of nervousness or stress relating to the nuclear test scheduled on 15 October 1953 – to my mind that is consistent with the material as a whole.
The materials point to Mr Finn experiencing nervousness and stress in the days leading up to the nuclear test scheduled for 15 October 1953, and to him smoking more as a result. The materials point to him smoking cigarettes as a result of nervous anticipation nine and 19 days before the scheduled test.
Exhibit R4 points to the Totem 1 and 2 British nuclear tests being conducted on 15 and 27 October 1953[28]. I note that Mr Finn’s posting to Emu Field ended on 21 October 1953. Thus, the first test (but not the second) is within the period of Mr Finn’s eligible British nuclear test service from 15 to 21 October 1953.
[28] Exhibit R4, page 140.
The evidence of Professor Mattick points to a period of at least three months of increased smoking being required for increased smoking habituation to occur. Even though the Professor was prepared to accept the possibility that increased stress may increase nicotine absorption rates and conceivably reduce the time require for habituation, he was not able to quantify this effect or point to any scientific basis for this possibility, and labelled it conjecture.
The present materials point to Mr Finn smoking at an increased rate as a result of anticipatory nervousness over a period of days or perhaps weeks leading up to or ahead of the nuclear test on 15 October 1953. There is no material pointing to this occurring over a period of months. There is no material that points to Mr Finn smoking at an increased rate for 3 months or more, or for a sufficient period to establish habituation to smoking at the increased rate, as a result of stress or nervousness in anticipation of the nuclear test on 15 October 1953. There is not sufficient material from which to properly draw such an inference.
Thus, the proposition that Mr Finn became habituated to smoking an increased amount of cigarettes because of nervousness and stress ahead of the 15 October 1953 nuclear test is not raised on the present materials.
This is not a matter of finding facts or splitting hairs in respect of Mr Finn’s recollections of events now long past, but rather it is a central matter that goes to the essential substance of the hypothesis he is attempting to raise. The absence of material to support this essential element of the hypothesis cannot simply be side-stepped as an irrelevant or insignificant detail; nor can it be bridged by sheer conjecture, or covered by inference or by reference to s 119 of the Act. For this reason, Mr Finn’s hypothesis does not meet the first test.
The hypothesis posited by Mr Finn is not raised on the materials before me and it cannot, therefore, constitute a reasonable hypothesis for the purposes of the Act.
Having carefully considered all of the materials, it appears to me that an alternative hypothesis of connexion may arise, albeit one that was not expressly raised by Mr Finn. Ultimately this does not assist Mr Finn’s case, and I will address it but briefly. The alternative hypothesis may be that his smoking increased in the period leading up to the atomic test on or about 15 October 1953 as a result of nervousness in anticipation of the test, and it continued thereafter for a similar reason – nervousness or anxiety about the possible adverse health effects of the test.
Mr Finn’s service discharge record, dated 12 January 1954, suggests that Mr Finn suffered from headaches and nervousness[29]. This lends support to the alternative hypothesis. So, too, does Mr Finn’s own evidence that he continued to smoke at an elevated level of 20 or so cigarettes per day after the test and that, when posted to a different location on 21 October 1953, after the atomic test, he took many days leave. The difficulty is that Mr Finn associated his continued smoking after his eligible service with drinking alcohol – the proposition that he continued to smoke at an elevated level because of nervousness, stress or anxiety resulting from the atomic test is not raised on the present materials. Thus, at this point, the alternative hypothesis fails.
[29] See T3 folio 8.
That being so, the hypotheses linking the diseases under claim with Mr Finn’s period of eligible service are not raised on or pointed to by the present materials. His case cannot succeed and the decision under review must be affirmed. It is not necessary to proceed further to consider the Statements of Principles or to determine whether the hypotheses, if raised, would conform to the templates they set out.
Before closing it is desirable to make some observations about the issue of anticipatory causation.
The Commission submitted that it is inconceivable for an incident or circumstance to be caused by a future event.
On first blush, this may appear persuasive – time flows in but one direction and, commonly, effects follow the cause. But on closer consideration, it appears to me that the submission is misconceived in the circumstances. Fear is a psychological phenomenon that is largely anticipatory. It is also a psychological phenomenon that causes stress. In the case of a claim such as that brought by Mr Finn, as Professor Mattick conceded, his nervous stress in anticipation of an event that he perceived as a threat to his health and well-being, informed by public knowledge at the time concerning previous atomic tests and the atomic bombing of Nagasaki (and Hiroshima), may well have caused him to smoke more cigarettes. I see no reason why a cause of that kind should be excluded simply because it preceded the occurrence of an anticipated event that ultimately occurred during a short period of eligible service. That, to my mind, does not raise a bar to an argument of causation, albeit anticipatory, and it would not cause Mr Finn’s claim to fail.
While time flows in one direction, it does not follow that the relationship of cause and effect is equally unidirectional. It may be unusual, certainly, for a cause to follow its anterior effect, but in the minds of men and women, particularly in the face of actual or perceived threats during service, the force of anticipatory phenomena such as fear, anxiety and nervous pre-emption of a future event, may cause avoidant or stress-related behaviours that can be attributed to the future event. Mr Finn’s increased smoking in the lead up to the British nuclear test may be an example of this. The effects of an event may be experienced before and after its occurrence and the possibility of anticipatory causation should not too readily be discounted or dismissed.
While this does not raise a bar to Mr Finn’s claim, it does not assist him either – without a viable hypothesis connecting the diseases for which he has claimed disability pension and any circumstance of his eligible period of service being raised on the materials, his claim must fail. And so it does.
The decision under review is affirmed.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member .....................[sgd].........................................
Associate
Dated 1 May 2013
Date of hearing 9 April 2013 Advocate for the Applicant Mr T. Latimore Solicitors for the Applicant Legal Aid Commission of NSW Advocate for the Respondent Mr T. O'Reilly Solicitors for the Respondent Department of Veterans' Affairs, Advocacy Section
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