Murphy and Repatriation Commission

[2004] AATA 587

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 587

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/542

VETERANS' APPEALS  DIVISION		)
Re		DENNIS JOHN MURPHY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date23 April 2004

PlaceAdelaide

Decision The decisions under review are affirmed.  

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Veterans’ Appeals – whether conditions war-caused or service related – diabetes mellitus and chronic bronchitis and emphysema – Statements of Principle.

Veterans’ Entitlements Act 1986 – ss120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82  

REASONS FOR DECISION

23 April 2004 Mr S P Estcourt QC., (Deputy President)           

1.      This is an application to review a decision of the Veterans’ Review Board (VRB) of 10 July  2003 affirming  decisions of the Repatriation Commission rejecting the applicant’s conditions of diabetes mellitus and chronic bronchitis and emphysema as war-caused.

2.      The applicant contends that during operational service he experienced an increase and/or worsening in his level of smoking as a result of his operational service and/or various experiences during that service.

3. The standard of proof in this case is governed by s120 of the Veterans’ Entitlements Act 1986 (“the Act’) as affected by s120A of the Act and all applied in accordance with the four stages of analysis prescribed by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 @ 96-97.

4.      The applicant’s operational service were periods of service in the RAN on board HMAS Parramatta from 9/5/63 to 18/5/63 and 26/5/64 to 26/6/64, and on board HMAS Duchess from 18/1/68 to 20/11/68.

5.      The factor contended for in the relevant SoP’s namely, No 82 of 1999 as amended by Nos 9 and 91 of 2001 and No 73 of 1997, is the smoking of at least 10 pack years of cigarettes and it appears beyond dispute that the applicant’s smoking was at or above that requirement.

6.      The real issue is whether, as required for the applicant’s claimed conditions and for all conditions generally, the factor in the SoP contended for not only exists, but can be related to the relevant service rendered by the person.   It is not enough to establish in a general sense that smoking resulted from Navy life.    It is the relevant operational service  that must be causative.

7.      While the applicant was a non-smoker before he joined the Navy on 12 March 1962 and commenced smoking within weeks of enlistment, the pattern of development of his intake of tobacco does not comfortably support a relationship between increased smoking and the relevant periods of operational service.

8.      The period of operational service ultimately relied on by the applicant before the Tribunal was one of 32 days in 1964, when the Parramatta sailed from Subic Bay to rendezvous with the HMAS Sydney east of Borneo and then escorted the Sydney to Jesselton, now Kota Kinabalu in North Borneo and then on to Fremantle via Singapore and Penang.    The applicant was he said, particularly apprehensive during this period and smoked more as a result.

9.      The materials before the VRB pointed to a smoking habit that commenced soon after enlistment with a consumption of about 5 cigarettes a day and the written histories given by the applicant showed an increase in the quantity smoked over the period from May 1963 to November 1968.

10.     At the hearing before the VRB the applicant said that his smoking habit had gradually increased, progressed and became heavier.   He did say that pressure may have had something to do with it, but he did not assert that a permanent increase in the quantity he smoked was directly attributable to a precise period of operational service.

11.     Nothing in the evidence of the applicant before this Tribunal leads me to believe that what he told the VRB in this regard was anything other than correct.   The Tribunal does not accept that Mr Murphy’s smoking increased particularly and permanently during the precise period of operational service between 26 May and 26 June 1964 as he now appears to suggest.   The discrepancies between the 2 smoking histories he completed and the smoking history he gave in his oral evidence to the Tribunal causes me to doubt the accuracy of his recollection of the development of his smoking habits and to conclude that what he told the VRB, namely that his smoking gradually increased and progressed and that the pressures may have had something to do with it, is as high as he can put the relationship between the very short period of operational service relied on and his permanently increased smoking.

12.     In my view, all the applicant could really say with conviction was that between the time he joined the HMAS Parramatta and the time he left it, his smoking had increased from 7, 8 or 9 a day to 30 to 40 a day, where it thereafter remained until quite recently.   His period of service on HMAS Parramatta of course embraced a period of more than the 32 days of the operational service, which ultimately became relevant in this case, it was he said, a period of about two years.   The applicant’s evidence to the effect just stated falls short of establishing that his smoking was war-caused as opposed to arising out of Navy service generally.

13.     It follows that the finding of the Tribunal is that the applicant’s claimed conditions are not war-caused and  the decision of the Tribunal is that the decisions under review are affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  20 April 2004
Date of Decision  23 April 2004
Counsel for the Applicant         Mr Simon Ower
Solicitor for the Applicant           Tindall Gask Bentley
Counsel for the Respondent     Mr Greg Doube
Solicitor for the Respondent      Department of Veterans Affairs