Murton and Repatriation Commission
[2004] AATA 133
•12 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 133
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1211
VETERANS' APPEALS DIVISION )
Re AUDREY MURTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date12 February 2004
PlaceSydney
Decision The Tribunal affirms the decision under review.
Ms G Ettinger
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – pension – whether ischaemic heart disease was war-caused -ischaemic heart disease hypothesis related to smoking – decision under review affirmed
LEGISLATION
Veterans' Entitlements Act 1986 s 120(1), (3), 120A(3)
Repatriation Medical Authority Statement of Principles Instrument No.38 of 1999
CASE LAW
Repatriation Commmission v Deledio(1998) 83 FCR 82
Deledio v Repatriation Commission (1997) 47 ALD 261
Byrnes v Repatriation Commission (1993) 177 CLR 564East v Repatriation Commission (1987)16 FCR 517
Bull v Repatriation Commission (2001) 188 ALR 756
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Cornelius [2002] FCA 750
Hawkins v Repatriation Commission (1993) 30 ALD 59
REASONS FOR DECISION
12 February 2004 Ms G Ettinger, Senior Member 1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the application of Mrs Audrey Murton, widow of Mr Harry Edward Murton, the Applicant in these proceedings, for review of a decision of the Repatriation Commission dated 15 April 2000 (T2), which was affirmed by the Veterans’ Review Board on 16 July 2001 (T13). The decision made was that the death of Mr Harry Edward Murton, the Veteran, was not related to his war service.
2. Mr M Smith of counsel instructed by M J Buss of the Legal Aid Commission appeared for Mrs Murton, and Ms J Jagot of counsel instructed by the Ms A Nanson of the Australian Government Solicitor appeared for the Repatriation Commission.
ISSUE BEFORE THE TRIBUNAL
3. The issue before the Tribunal was whether the death of Mr Murton was war caused pursuant to the Veterans’ Entitlements Act1986. Mr Murton died on 5 February 2000, and his death certificate read:
“ I a) Acute myocardial infarction minutes
b) Coronary atherosclerosis years
II Peripheral vascular disease years”
RELEVANT LEGISLATIVE CONTEXT
4. The relevant legislation in this matter was the Veterans Entitlements Act 1986 (“the Act”), in particular sections 9, 120A, and 120.
5. There was discussion between the parties as to what part of Mr Murton’s service qualified as operational service under section 6 of the Act. I was satisfied that he served on operational service for a periods of some 105 days between 1960 and the end of 1961, and that the claim was considered accordingly. The circumstances in which a disease shall be taken to be war-caused are set out in section 9 of the Act.
“9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by subsection 120A
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war‑caused injury or a defence‑caused injury;
(b)that the disease was a war‑caused disease or a defence‑caused disease;
…
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
…”
6. Section 120A of the Act deals with the Statements of Principles (“SoP”) and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority (“the RMA”) or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
“120AReasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
...”
7. Because Mrs Murton’s claim was lodged after 1 June 1994, the provisions of section 120A of the Act apply. There has at all relevant times been a Statement of Principles ("SoP") issued by the Repatriation Medical Authority ("RMA") in respect of ischaemic heart disease. I must therefore apply the relevant SoP in deciding whether or not the material before me raises a reasonable hypothesis connecting Mr Murton’s death with the circumstances of his particular service. The relevant RMA Statement of Principles (“SOP”) was Instrument No.38 of 1999, in particular Factor 5f(i) and (ii).
8. It was agreed between the parties, and I accepted that should the application be successful, the date of effect would be 6 February 2000.
BACKGROUND
9. Mrs Murton, whose statement of 11 July 2003 was Exhibit A1 before the Tribunal, Mr John Fitzpatrick whose statement appeared at T9/38, and Mr David Howard, whose statement dated 10 July 2003 was before the Tribunal as Exhibit A2, gave oral evidence at the Hearing. The two latter were friends of the Veteran
10. The Tribunal had before it the documents (“the T-documents”) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), and the further exhibits tendered during the hearing.
Exhibit No
Description
Date
A1
Statement of Mrs Audrey Murton
11 July 2003
A2
Statement of David George Howard
10 July 2003
A3
Medical history under cover of letter from Dept of Defence
2 January 2002
A4
Two Dept of Defence letters with records
29 January 2002, 4 February 2002
A5
Report and correspondence with records from Mr Brendan O’Keefe
A6
Reports of Proceedings of HMAS Quiberon and HMAS Sydney
A7
12th Edition Principles of Internal Medicine
R1
Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
R2
Record of Service for Mr Murton
R3
Transcript of VRB hearing
16 July 2001
R4
Clinical notes of Dr W Mackay
R5
Documents listing Instruments determining eligibility
R6
Claim form for disability pension and medical treatment by Mr Murton
10 October 1997
SUBMISSIONS AND CONCLUSIONS
11. There was discussion before the Tribunal as to which parts of Mr Murton’s service were operational service. Several documents and the submissions of the parties assisted with determining this, including Exhibit R2, a record of the Veteran’s service, Exhibit A4, Department of Defence letters with records and Exhibit A6, Reports of the Proceedings on HMAS Quiberon. As I was satisfied Mr Murton served on operational service for some 105 days between 1960 and the end of 1961, the determination regarding whether his death from ischaemic heart disease was war-caused, had to be made taking into account the principles in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”).
application of principles in repatriation commission v deledio(1998) 83 FCR 82
12. Ultimately, in determining whether the Veteran’s death from ischaemic heart disease was causally related to his service in accordance with sections 9, 120(1), 120(3) and 120A of the Act, I had to follow the steps as outlined by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 as follows:
“…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1The 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.
2If the material does 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If 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.
4The 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.”
13. With respect to determining when an hypothesis is reasonable, I noted Heerey J's approach in Deledio v Repatriation Commission (1997) 47 ALD 261 which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):
“Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”
14. I turned then to decide whether, applying the principles set out in Deledio (supra), and considering the whole of the material before me, an hypothesis was raised connecting Mr Murton’s death from ischaemic heart disease with his war service.. It was the onset of the disease, conformity with the relevant SoP, and the decision whether it was war-caused pursuant to the legislation which was in issue. I noted that there was no fact finding at this stage.
whether the material before the tribunal raises an hypothesis connecting mr murton’s death from ischaemic heart disease with his war service
15. In considering whether the totality of the material before me raised an hypothesis connecting Mr Murton’s death from ischaemic heart disease with his war service, I noted the oral evidence of Mrs Murton, the Applicant in these proceedings. She had also written a letter to the Department of Veterans’ Affairs dated 21 August 2000, which was at T12, and made a statement which was dated 11 July 2003, and was before the Tribunal as Exhibit A1.
16. The material put forward by Mrs Murton in support of the hypothesis follows. She informed me that her husband smoked socially (four to five cigarettes a day), when she met him at HMAS Albatross in May 1958 where he was posted and she worked. She said that he continued to so smoke after they were married in December 1959.
17. Mrs Murton told the Tribunal that when her husband was away, he missed home and wrote to her every day or every second day. One event which he reported finding very disturbing, she said, was an aircraft crash into the water near where the Veteran was in the dark, in a motor boat.
18. She said that after he returned from his postings to HMAS Quiberon, he was smoking all the time and could not be without cigarettes. She attributed this, and his being “uptight” and “different” to an incident in New Guinea which she knew about, but about which he had not told her. She said that the event occurred when her husband had been sent, as the motor boat driver, to investigate a village where he saw that everyone had been slaughtered, the women raped, and children decapitated.
19. Mrs Murton referred to her husband being sworn to secrecy after being involved in this event, and said that she overheard him telling a neighbour. Mrs Murton also said that when they were in Darwin (1962 – 1964), her husband would wake in the middle of the night with the shakes and sweating, and would then spend the rest of the night chain smoking.
20. Mrs Murton said that the first time her husband returned from service in 1960 she was very pleased to have him back, and did not notice any increase in his smoking. She said that it was after the second voyage and in the married quarters where they were posted in Darwin that she noticed he was very on edge, throwing things, and smoking a lot. Mrs Murton said that cigarettes were easily available, her husband brought them from the ship, and they were available duty free. She noted that from early 1962, her husband began to bring cartons of cigarettes home..
21. Mrs Murton told the Tribunal that in 1979, her husband had leg problems and trouble walking, and the doctor had recognised that smoking aggravated this. She said that Mr Murton had tried to cease smoking, but that his sons smoked and instead of ceasing, he increased his smoking. She said that he attempted to stop but could not, and suffered breathing problems in 1998, and smoked to calm his nerves, even to the day before he died.
22. The smoking questionnaire at T4 indicated that Mr Murton commenced smoking regularly in 1951, that he smoked 30 – 40 cigarettes per day, and 4 ounces per week due to the “stress of training, being away from home and family. Peer pressure. Ease of access to tobacco products.” Replies to the questionnaire dated 26 September 1997, indicated that Mr Murton had not ceased smoking, and was still smoking at that time.
23. Mr John Fitzpatrick whose statement prepared in June 2000 was at T9, gave oral evidence. In his statement he said that when he first met Mr Murton in 1951, they were both non-smokers, that after Mr Fitzpatrick returned from Korea in 1953, he noted Mr Murton was a social smoker, but that when they both served on HMAS Quiberon, in the 1960s, Mr Murton smoked heavily. He said that he noticed this by mid-1961. Mr Fitzpatrick also gave evidence regarding the easy availability and cheap price of cigarettes at the time. He said smoking was encouraged, and was a method of settling nerves or dealing with boredom. Mr Fitzpatrick stated that he was aware Mr Murton was trying to quit, but knew that he had smoked right up until his death in 1999.
24. Mr David Howard whose statement dated 10 July 2003 was before the Tribunal as Exhibit A2, gave oral evidence at the Tribunal. He did not serve on HMAS Quiberon with Mr Murton, but said that he met up with the Veteran at various times, and described his smoking as “not an awful lot” in 1961/2, escalating to chain smoking after Singapore in the 1960s. He too described the stressors of war, and described his own increase in smoking as well as that of Mr Murton in Darwin. Mr Howard indicated that he saw Mr Murton every school holidays after both left the Navy (Mr Murton in 1966 and Mr Howard the following year). He said that he knew Mr Murton continued to smoke until his death, increasing the amounts over the years leading up to his death.
25. The death certificate indicated death from ischaemic heart disease. On consideration of the material raised in the paragraphs above, and the total material before me, including material from the Respondent which did not accord with the above, but which I do not have to either accept or reject, as I am not fact finding in at this stage of the process, I found that that material raised an hypothesis linking Mr Murton’s death from ischaemic heart disease with his war service. The hypothesis supporting his increase in smoking arose out of the reported increase in smoking due to the pressures of being away from home at war so soon after marriage, and/or as a result of the incident involving an aircraft crash, or seeing bodies floating in the water as related by Mrs Murton, or indeed the seeing of the aftermath of a massacre.
consideration of the sop – whether the hypothesis is reasonable
26. I noted that where an SoP has been determined pursuant to section 196B(2) of the Act, it sets out the factors which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. Accordingly, I had to form an opinion whether the hypothesis raised linking Mr Murton’s death from ischaemic heart disease with his war service, was a reasonable one. The hypothesis will only be held to be reasonable if the hypothesis fits, that is to say is consistent with the template to be found in the SoP. If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
27. The applicable SoP in this case was Instrument No.38 of 1999 which included factor 5(f) as follows, that being the relevant factor in Mr Murton’s case:
“5(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease;
(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease; or
…”
28. Accordingly, if Mr Murton can be found to meet the tests in Instrument No.38 of 1999, then a reasonable hypothesis can be raised linking his death from ischaemic heart disease to his war service. In that connection, I considered all the evidence, case law and submissions with regard to Mr Murton’s smoking, noting that neither in stage one nor at this stage, is there any fact finding involved.
29. I was mindful of the evidence regarding Mr Murton’s smoking, and how it increased, as detailed in the paragraphs above, and the evidence of the Veteran’s friends, Mr Fitzpatrick and Mr Howard. The smoking questionnaire completed in 1997, (T4), indicated that Mr Murton was still smoking at that time, and both Mrs Murton and the Veteran’s friends, Mr Fitzpatrick and Mr Howard indicated that he smoked until the day he died. I noted Mrs Murton’s comment regarding the defects in completing the questionnaire (relating to information regarding any increase in smoking), which she said occurred because her husband was ill at the time.
30. Mrs Murton referred to events such as the aftermath of the massacre Mr Murton said he had witnessed in New Guinea, and the RN aircraft crash into waters where her husband had been waiting in a motor boat, in the dark, in order to try and establish that these had caused him to increase his smoking. She indicated that he was a changed person after the New Guinea incident about which he was not permitted to speak, and that he would wake up at night distressed, and chain smoke, in contrast to his light smoking when she first met him.
31. Mr Fitzpatrick gave evidence of serving with Mr Murton on HMAS Quiberon, noting that in the 1950s he had observed Mr Murton as a social smoker, whereas in the 1960s he had observed an obvious increase in the Veteran’s by then heavy smoking. He also mentioned the easy availability of cigarettes, and the fact that Mr Murton smoked until he died.
32. Mr Howard stated that he saw the Veteran periodically, that Mr Murton was not smoking “an awful lot” in 1961/2, but that after the 1960s, he was chain smoking. He too mentioned that Mr Murton smoked until his death.
33. I was mindful that the Respondent did not dispute the evidence that Mr Murton had smoked the requisite quantity to satisfy the requirements of the SoP, and that he had smoked until his death from ischaemic heart disease.
34. There was no dispute, and I accepted that Mr Murton met the tests in Instrument No.38 of 1999 as far as the quantity of smoking was involved.
35. However the argument of the Respondent was that the hypothesis was not pointed to by all the material in that there was speculation regarding the incident of the alleged massacre in New Guinea which it was alleged led Mr Murton to increase his smoking. Ms Jagot pointed to a lack of records regarding any such incident, thus making the hypothesis unreasonable and untenable.
36. Ms Jagot also indicated that the second hypothesis may have been that general heightened tension could have led to Mr Murton’s increase in smoking as claimed on his behalf. She submitted that the information in the smoking questionnaire at T4/16 indicated that Mr Murton commenced smoking in 1951, increasing in the 1960s prior to his operational service.
37. Ms Jagot referred to their Honours in East v Repatriation Commission (1987) 16 FCR 517 at 522 and Bull v Repatriation Commission (2001) 188 ALR 756, emphasising that at paragraph 19 of Bull (supra), the Court had stated:
“It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not credible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above.”
38. Ms Jagot also compared the situation of Mr Murton with that in RepatriationCommission v Tuite (1993) 39 FCR 540, where Mr Tuite had, unlike Mr Murton, not smoked at all prior to operational service.
39. In order to meet the tests in Instrument No.38 of 1999 it was also necessary for me to consider the diagnosis and clinical onset of Mr Murton’s ischaemic heart disease. (Repatriation Commission v Cornelius [2002] FCA 750).
40. A document at T6/26 relating to the pension claim indicated Mr Murton had been treated for “arteries and heart condition” in February 2000, and aortic disease in June 1980. I was mindful the Veterans Review Board was reasonably satisfied that the Veteran suffered from ischaemic heart disease, and I was similarly satisfied.
41. I find therefore that the requirements of factor 5(f)(i) and (ii) of the SoP were satisfied in that it was not disputed, and I accepted that Mr Murton smoked the requisite amount of cigarettes, and that he had smoked those requisite amounts for the requisite periods before the onset of ischaemic heart disease.
42. I noted that the Federal Court and the High Court have both emphasised that proof of facts is not in issue when considering under s 120(3) of the Act, whether or not the material raises or points to a reasonable hypothesis.
43. I find that the facts raised by the Applicant with regard to her husband’s smoking, and onset of ischaemic heart disease, were consistent with the tests in the relevant SoP, and gave rise to a reasonable hypothesis linking Mr Murton’s smoking with his death from ischaemic heart disease.
44. I moved then to consider stage four, and the situation pursuant to section 120(1) of the Act.
section 120(1) of the act - consideratons
45. I then moved to consider Mr Murton’s situation pursuant to section 120(1) of the Act, noting that the claim before the Tribunal will succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis.
46. I first considered the smoking questionnaire at T4 noting that crucial questions such as Question 6, and the section on changes to smoking habits which followed, were not completed, and that this meant that there was no indication regarding the escalation of smoking from that document. I was mindful of Mrs Murton’s evidence explaining that this was because her husband was ill at the time of the completion of the questionnaire on 26 September 1997. I was mindful he had indicated on the questionnaire, (which I accepted was not physically filled in by him although he had signed it), that he commenced smoking in 1951, approximately nine years before operational service in 1960/61.
47. I was mindful of Mrs Murton’s evidence that when she met her husband he was a social smoker, and noted the submissions of the Respondent that after they were married in early 1959, Mrs Murton and the Veteran lived separately due to his naval commitments, seeing each other only a few nights each week. Ms Jagot submitted that because of that, Mrs Murton could not have known the full extent of her husband’s smoking. I did not consider that a strong argument.
48. I noted further that in Exhibit R6, which was Mr Murton’s claim for a disability pension, he stated that he first became aware of his peripheral vascular disease in 1970, and that his “smoking habit commenced during service” (his service having commenced in 1951).
49. Ms Jagot submitted by reference to case law, (Repatriation Commission v Hughes 23 ALD 270 and Tuite (supra)), that a different situation prevailed there, in that the veterans in those cases, unlike Mr Murton, had not smoked prior to operational service, whereas Mr Murton had already smoked for some nine years at that time.
50. I have noted the differences in the evidence given regarding the time when Mr Murton was said to have escalated his smoking, and what role the alleged experience of the aftermath of a massacre in New Guinea played, as well as Mr Murton’s role in the RN aircraft crash described by his wife. I accepted Ms Jagot’s submission that there was no official record of the so-called massacre in New Guinea. She also submitted that Mr Murton did not suffer any specific incident or heightened tension during his operational service. I noted also the Applicant’s evidence regarding her understanding that Mr Murton was instructed that his contact and the information about the alleged massacre was to remain secret, but considered the existence of the event as speculative. I was mindful from the records that Mr Murton was not in New Guinea as part of his operational service, and even if the massacre did take place, he would not have been in a position to have been present at the aftermath, because he was not in New Guinea.
51. I preferred the submissions of the Respondent which indicated there were no records regarding the alleged New Guinea event which it was claimed led to Mr Murton dramatically increasing his smoking. I accepted the evidence that Mr Murton’s increase in smoking was gradual due to the addictive qualities of tobacco, being away from home, and the ready and cheap availability of cigarettes and tobacco. In that regard, I was mindful also of the statements of the Full Federal Court in Tuite (supra), and aware that those factors could not be ignored when considering causation. I noted Davies J stating:
“Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9(1)(b), … 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 a setting in which the event occurred. Denning J has said that the service ‘must be a cause or distinct from being part of the circumstances in our on which the cause operates’.
…
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.
…
It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction.”
52. I noted also that Tuite had commenced smoking during service, whereas Mr Murton had already smoked for some nine years in the service, with the stated peer pressure and availability of cigarettes as well as the addictive qualities of tobacco in play before operational service.
53. I was mindful further of Davies J’s statements in Hawkins v Repatriation Commission (1993) 30 ALD 59, in which he dealt with section 9(1)(b) of the Act and was mindful that the legislation governing these matters is beneficial legislation. I noted Davies J stating that:
“issues of causation are not necessarily to be determined by the formal boundaries of location and time by which service and employment may be delineated. It appears that the Tribunal interpreted the words ‘arose out of’ or ‘was attributable to’ as having a meaning limited to the time and location of operational service. However s 9(1)(b) is not so limited and there was an error of law in the Tribunal’s approach in this respect.”
54. I was mindful of the evidence of Mr Fitzpatrick who stated in contrast to the evidence of Mrs Murton, that Mr Murton was a non-smoker when he met him in 1951. I noted that Mr Fitzpatrick stated that on his return from Korea in 1953, Mr Murton was a social smoker, and that by mid-1961, Mr Murton was smoking heavily.
55. By contrast, Mr Howard remembered Mr Murton not smoking too heavily in 1961/2, but noted that his smoking escalated to chain smoking in the 1960s.
56. Ms Jagot submitted that there was no particular causation, that the evidence before the Tribunal indicated Mr Murton increased his smoking from 1951, and that the nature of smoking itself is addictive. She submitted that as a consequence, the Applicant moved from social smoking to moderate smoking, and eventually to heavy and chain smoking. Accordingly the claim must fail she submitted. Mr Smith submitted that that was not an accurate representation of what occurred with regard to Mr Murton, namely that it was not a gradual progression to heavy smoking, but a sudden increase within a discrete period which continued to his death because he could not give up. Mr Smith indicated to the Tribunal the evidence was that in mid-1960 Mr Murton was not a chain smoker, but that by the end of 1961, he was.
57. In summary, Mrs Murton relied on her husband’s smoking habit which she claimed was the cause of his death from ischaemic heart disease, and which she claimed was war-caused.
58. I was mindful of the conflict of evidence regarding Mr Murton’s smoking, the commencement of which I find to have been some nine years before his operational service. I find that the rate of escalation of his smoking related not to particular stressors of war, but to the natural consequences of availability of tobacco and its addictive qualities. I was mindful the Federal Court’s statements in Tuite (supra) regarding camp life, and noted that Tuite’s circumstances were different in that he commenced smoking during service, whereas Mr Murton commenced well before his operational service.
59. I was convinced beyond reasonable doubt that Mr Murton could not have been involved in the aftermath of the massacre on which the Applicant relied, because he was not in New Guinea during his operational service. Records before the Tribunal indicated that HMAS Quiberon took place in Liberation Day ceremonies in Borneo in September 1960 and again in September 1961, with reports of sporting events and sightseeing (Exhibit A5). The event of the RN aircraft crash was documented (Exhibit A5), but Mr Murton’s role in that was not, and Mr O’Keefe’s report specifically mentioned that no body parts were retrieved. The reliance by the Applicant on the aftermath of the massacre event, and the aircraft crash to establish Mr Murton’s increase in smoking is inconsistent with the hypothesis, and accordingly the claim must fail.
60. I found applying section 120(1) of the Act and taking into account all the evidence, that I was satisfied beyond reasonable doubt that there was no sufficient ground for determining that Mr Murton’s death from ischaemic heart disease was war-caused.
DECISION
61. The decision under review is affirmed.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:
AssociateDate of Hearing13 November 2003
Date of Decision 12 February 2004
Counsel for the Applicant Mr M Smith
Solicitor for the Applicant Ms J Buss, NSW Legal Aid Commission
Counsel for the Respondent Ms J Jagot
Solicitor for the Respondent Ms A Nanson, Australian Government Solicitor
0
11
0