Murton and Repatriation Commission

[2004] AATA 1272

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1272

ADMINISTRATIVE APPEALS TRIBUNAL      )        

)          No N2004/610

VETERANS APPEALS DIVISION		)
Re		ANDREY MURTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date1 December 2004

PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely that the Applicant is entitled to pension consequent upon the war-caused death of Harry Edward Murton deceased as and from the 6^th day of February 2000.

(Sgd)  M D Allen

..............................................

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS: Federal Court remittal – whether the death of Applicant’s husband was war-caused – whether there is a reasonable hypothesis connecting Applicant’s death to Applicant’s service – evidence that the circumstances of operational service encouraged smoking – Respondent did not disprove the hypothesis beyond reasonable doubt – decision under review set aside.

Veterans’ Entitlements Act 1996 s 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

Stafford v Repatriation Commission [2002] FCA 989

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

1 December 2004 Senior Member M D Allen

1.      This matter originally came before the Tribunal on 13 November 2003 pursuant to an application for review lodged on behalf of the Applicant on 16 August 2001.

2.      On 12 February 2004 the Tribunal handed down its decision affirming the decision under review which had rejected the Applicant’s claim for pension consequent upon the death of her husband Harry Edward Murton.

3.      The Tribunal’s decision was appealed to the Federal Court and on 3 May 2004 the Federal Court made orders by consent setting aside the Tribunal’s decision and remitting the matter to the Tribunal to be heard again.

4.      The late veteran died on 5 February 2000 the certified cause of death being:

I         (a) Acute myocardial infarction – minutes

(b) Coronary atherosclerosis – years

II         Peripheral vascular disease - years

5.      It was not disputed in these proceedings that the effective cause of the veteran’s death was a myocardial infarction caused or contributed to by his smoking habit.

6.      As the deceased had operational service as that term is defined in section 6C Veterans’ Entitlement Act 1986 (“VEA”) the standard of proof in this matter is that mandated by ss 120(1) and (3) VEA.

7.      Subsections 120(1) and (3) VEA provide that the death of a veteran claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after consideration of the whole of the material before it, the Tribunal is of the opinion, that the said material does not raise a reasonable hypothesis connecting the death of the veteran with the circumstances of the service rendered by him.  Pursuant to s 120A VEA a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.

8.      Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.

9.      The manner in which the Tribunal must approach its task where a SoP exists is set for by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 namely:

“(1) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

(2) If the material does not raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11).

(3) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail. 

(4) The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”

10.     In this matter, the Applicant had varying periods of operational service whilst the vessel upon which he served, HMAS Quiberon, was part of the Far East Strategic Reserve (“FESR”). The precise details are set out in the document that became Exhibit R2 in these proceedings. As was pointed out by Heerey J in Stafford v Repatriation Commission [2002] FCA 989 the question of broken periods of operational service is to be considered under ss 120(1) VEA.

11.     In this matter, the periods of operational and non operational service are effectively all within the two overall periods of detachment of HMAS Quiberon to the FESR. It would, in my opinion, be farcical to try and differentiate between days of operational service and days of non operational service particularly when all that is required is that the incidences of operational service make a contribution to the ultimate disease process.

12.     The hypothesis contended for by the Applicant is that the deceased increased his smoking habit whilst on operational service because of heightened tension, stressful incidents, and boredom in an environment that encouraged smoking and made cheap cigarettes available. In particular “stress” was caused by his being separated from his wife after only six months of marriage. The increase in his smoking habit then contributed to his ischaemic heart disease and death caused by a coronary infarct.

13.     An hypothesis relied upon by the Applicant in the previous proceedings was that the deceased had been stressed while serving in Papua New Guinea by coming across a village whose inhabitants had been massacred. This hypothesis was, in light of the historical evidence made available, abandoned in these proceedings.

14.     Both parties agreed that the current SoPs regarding ischaemic heart disease are no less favourable to the Applicant than the SoP in force at the time the Respondent made its original decision in this matter. The current SoPs are Instrument No.53 of 2003 as amended by Instrument No.9 of 2044. Factor 5(f)(ii) of the Instrument states:

“5(f) Where smoking has not ceased prior to the clinical onset of ischaemic heart disease:

(i) …

(ii) smoking at least one pack a year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease.”

15.     The evidence is that the deceased was a heavy smoker up to the time of his death and that although in 1998 coronary artery disease was said to be 10 per cent to 29 per cent likely to be present, the clinical onset of ischaemic heart disease seems to have been at the time of death or a period shortly prior thereto.

16.     The real question in this matter was whether the material raised a reasonable hypothesis that operational service caused or contributed to an increase in the smoking habit of the deceased, the increase of which continued up to his death.

17.     The Applicant’s evidence was that she first met the deceased in May 1958 and they started going out together in February 1959. The deceased would come to the Applicant’s home in Nowra two nights out of three and they would go out about twice a week.

18.     The Applicant and the deceased married in December 1959 and lived with the Applicant’s mother. The Applicant recollects the deceased smoking at that time. She said that he would smoke walking home from a picture show or when having a drink. Otherwise he very rarely smoked. He did not smoke at home as the Applicant’s mother was a non smoker.

19. Document T4 of the documents prepared for the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, is a smoking questionnaire signed by the deceased. The Applicant has questioned its accuracy and I agree with the Applicant’s counsel that it is very rare for someone to commence to smoke at the rate of 30 to 40 cigarettes a day. This rate may well represent the amount smoked at the time the questionnaire was completed. I do however accept that the deceased commenced to smoke cigarettes in 1951.

20.     During the year 1960, the deceased was posted aboard HMAS Quiberon which was then based in Sydney. The Applicant came to Sydney and resided in a caravan in the yard of a dwelling occupied by the deceased’s sister. The deceased would stay with the Applicant every night he was not on duty. She says that during this period the deceased was only smoking socially having one or two cigarettes now and again.

21.     This evidence is somewhat in contrast to the evidence of Mr Howard who said that at this time, that is to say before operational service, the deceased would smoke 5 to 10 cigarettes while they were having a drink, maybe a little more.

22.     Exhibit A2 in the previous proceedings was the statement of Mr Howard. In that statement he said that he first met the deceased in 1960. At that time he (Howard) smoked 20 tailor made cigarettes over 2 days and the deceased a little more.  

23.     Mr Fitzpatrick on the other hand said in evidence that he had first met the deceased in 1951 and he had no recollection of the deceased smoking at that time.

24.     During 1961 Mr Fitzpatrick served with the deceased aboard HMAS Quiberon. The Quiberon with the deceased on board had previously done one tour with the FESR. During the vessel’s second period of attachment to the FESR the vessel was at Kuala Lumpur when Mr Fitzpatrick noticed that the deceased was smoking heavily. He asked the deceased for how long he had been smoking heavily and the deceased replied “only the last twelve months or so”.

25.     Mr Fitzpatrick did however give very telling evidence as to how a smoking habit could increase while on operational service. He said in answer to the question was there any attitude about smoking:

“well, I think it was encouraged really, because cigarettes and tobacco was so cheap, and at one stage I do remember being given free cigarettes. So it was encouraged because it settled your nerves and gives you something to do in the periods of boredom. Well, you couldn’t read or anything. You were on there, you had to be there, and you couldn’t do anything else, so you just hang around and smoke.”

26.     Cross examined Mr Fitzpatrick remembered that in 1953 the deceased was smoking only “socially”.

27.     The Applicant’s evidence was that after service aboard HMAS Quiberon the deceased had been transferred to Darwin in or about March/April 1962. It was at Darwin that the Applicant noticed that the deceased was smoking heavily, probably at the rate of 25 cigarettes a day.

28.     According to the Applicant, the deceased continued to smoke until his death although he tried on occasions to give up the habit. He was very reliant upon cigarettes to calm his nerves and while in Darwin he had been uptight and particularly angry and had night sweats and trouble sleeping.

29.     Mr Howard also served in Darwin at the same time as the deceased. He was asked if the deceased had ever said why he had started to smoke heavily and replied that the deceased had said:

“he had (had) enough experience and the only way he could settle himself down was (to) have a cigarette and no one was going to stop him”.    

30.     Both Mr Fitzpatrick and Mr Howard gave evidence of stress arising from the circumstances of being on operational service. The naval exercises performed were high intensive and were carried out with vessels from other nations. There was an expectation that the crew would produce optimal performance. There were pressures while on exercises not to make a mistake and unlike in Australian waters the exercises went on for weeks at a time without the chance to go ashore and relax.

31.     Had the evidence before me simply been that the deceased had been a light smoker prior to operational service and had returned from operational service smoking heavily then the material would not have raised a reasonable hypothesis as that term is discussed by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.

32.     Additional material does however exist namely the evidence of Mr Fitzpatrick as to the intensity of training while on operational service plus the periods of boredom both being factors that can encourage smoking. To this can be added the evidence that cigarettes were cheap and the deceased may well have obtained some solace from cigarettes having been separated from his wife after only six                  months of marriage.

33.     The hypothesis raised by the material before me conforms with the relevant SoP and I am not satisfied that the Respondent has negatived beyond reasonable doubt the facts upon which that hypothesis is based.

34.     The decision under review will therefore be said aside and the Tribunal substitutes in lieu thereof its decision namely that the Applicant is entitled to pension consequent upon the war-caused death of Harry Edward Murton deceased as and from the 6^th day of February 2000.                 

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed:         (E.Pope)
            .....................................................................................

Associate

Date of Hearing  22 November 2004
Date of Decision  1 December 2004
Counsel for the Applicant         Mr C Colborne
Solicitor for the Applicant          Legal Aid Commission (New South Wales)
Counsel for the Respondent     Ms J Jagot
Solicitor for the Respondent     Australian Government Solicitor