New and Repatriation Commission
[2008] AATA 953
•27 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 953
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1178
VETERANS' APPEALS DIVISION ) Re DOROTHY NEW Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member
Dr GJ Maynard, Brigadier (Rtd), MemberDate27 October 2008
PlaceBrisbane
Decision The decision under review is affirmed.
...............[Sgd]...............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – application by widow – whether death of veteran by non-Hodgkin’s lymphoma and pneumonia is war-caused – standard of proof – reasonableness of hypothesis to be assessed by reference to statement of principles – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 8, 120, 120A
Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711
Benjamin v Repatriation Commission (2001) 70 ALD 622; [2001] FCA 1879
Mines v Repatriation Commission (2004) 86 ALD 62; [2004] FCA 1331
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
Jones v Dunkel (1959) 101 CLR 298
Blair v Repatriation Commission [2005] FCA 1076
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION
27 October 2008 Dr K S Levy RFD, Senior Member
Dr GJ Maynard, Brigadier (Rtd), MemberINTRODUCTION
1. The Applicant is the wife of Mr Paul New, a deceased veteran. She has made an application for recognition of her husband’s death as being due to his smoking habit which, she claims, is related to his operational service. Her application was declined by a delegate of the Repatriation Commission on 1 December 2005. She appealed that decision to the Veterans’ Review Board which, on 1 February 2008 also rejected the application. She now seeks a review under s 37 of the Administrative Appeals Tribunal Act 1975.
ISSUES
2. The Tribunal is to determine whether the death of Mr Paul New is war caused in terms of s 8 of the Veterans’ Entitlements Act 1986 (“the Act”), and specifically:
(i)What was the kind of “death” suffered by Mr New? and
(ii)Was the condition of chronic bronchitis related to pneumonia; and did this condition have a causal nexus with the veteran’s smoking habit while on operational service?
EVIDENCE
3. The Tribunal was furnished with s 37 documents, a statement by the Applicant dated 15 May 2008 and some medical records from the Mater Hospital relevant to the veteran’s treatment prior to death. Mr New died on 19 September 2005 and the causes of death are formally listed as “1. Non-Hodgkin’s lymphoma 2. Pneumonia”[1].
[1] Exhibit 1: T4; Folio 21.
4. The veteran’s defence service was recorded as being with the Australian Army from 21 November 1952 to 14 March 1958. He was allotted to the Royal Australian Engineers during his military service and within that period, he had a period of operational service in Malaya from 8 October 1955 to 12 March 1957. The Applicant, Mrs Dorothy New, first met the veteran in 1985 and they were married in 1987. The Applicant has presented detailed evidence which was provided to her by the veteran prior to his death.
5. The record shows that Mr New was 20 years of age when he joined the Army. He was approximately 23 years of age when he was posted to Malaya. The Applicant told the Tribunal that Mr New had a smoking habit of 80 cigarettes per day. He told her that the reason he commenced smoking was the stressful life when he was on operational service in Malaya. Mrs New said that she did not ask her husband until after they were married about his smoking but was concerned for his health about the extent of his tobacco habit. She spoke of him always coughing up phlegm and that she convinced him to go to a hypnotist in Canberra and in Sydney for treatment. She said he stopped smoking in 1997 but had been a regular smoker each day up to that time. Mrs New also provided photographs of her husband – (a) when he was a young man just prior to joining the Army; (b) with Gurkha soldiers in Malaya; (c) with some friends apparently taken in Malaya off duty; and (d) with Mrs New when they went back to visit Malaysia.
6. In cross examination by Mr Kelly, Mrs New was referred to a statement that she provided to the Veterans’ Review Board. That statement showed that Mr New smoked until 1997. It states also that Mr New had told her that he had commenced smoking while on war service. He had mentioned to her also that he had been parachuted into Vietnam before Australia was involved in the Vietnam conflict. Her statement shows that her husband had also served in Korea and Malaysia. She believed his bronchitis (which he had each winter) contributed to pneumonia. This was due at least in part, to his heavy smoking and drinking, that this was causally related to his war service. Mr Kelly put to Mrs New that the photographs that she tendered showing him apparently in Malaysia in April 1957 could not be correct as records show he was in Australia at that time. The information she provided was given to her by the deceased veteran.
7. Diane Schabel provided telephone evidence. She stated that she was now 64 years of age but had known the deceased when she was about 11 or 12 years of age as he was a friend of her neighbour’s son. She said she did not know him well as he was 6 or 7 years older than her at the time. She said she did not see him frequently and recalled he once gave her a ride on his motorbike. She did not know him socially as she was a school student during those years (1955 or 1956). She said she did not recall Mr New as being a smoker at that time.
8. Dr John Armstrong, Associate Professor of Medicine at the University of Queensland and a consultant respiratory physician, provided a statement dated 22 May 2008 in relation to Mr New. His report was based on Mr New having commenced smoking during war service in his military service between 1952 and 1958. He smoked until 1997 and smoked approximately 18 cigarettes per day and therefore, had consumed approximately 35 - 40 pack years of cigarettes in his life. Dr Armstrong also indicated that there was evidence from Dr Kassim (who had treated Mr New previously for bronchitis and with evidence of cough, sputum production and shortness of breath). He said that acute bronchitis is consistent with bronchitis and/or emphysema which could have been induced by cigarette smoking. He also referred to radiological evidence indicating that there were some abnormalities as far back as 1994, which was well before the deceased’s treatment for non-Hodgkin’s lymphoma.
9. Dr Armstrong discussed the contribution of cigarette smoking to Mr Paul New’s terminal illness of:
“aggressive end stage of non-Hodgkin’s lymphoma”. He also said “significant long term cigarette smoking is likely to have made a contribution, albeit a small contribution, to Mr New’s death from pneumonia. This contribution would have occurred by way of damage caused by chronic bronchitis and impaired local host defence mechanisms thus contributing to infective organisms becoming established in the lung causing delayed clearance and resolution of the infection. This contribution, whilst likely to be small cannot be quantified. The major contribution to pulmonary infection, in the period leading up to death would be immuno compromise due to the lymphoma and the effects of chemotherapy treatment”[2].
[2] Exhibit 4 : Medical Report by Dr J Armstrong dated May 22, 2008.
10. Dr Armstrong’s summary is that:
“(i)Mr New had a significant cigarette smoking history commencing during military service with clinical features of chronic bronchitis.
(ii)Although lung function was either not measured and/or not commented upon, he would have had a high likelihood of having COPD.
(iii)Mr New had radiological changes on chest x-ray and CT which may have been due to post infective changes resulting from recurrent bronchitis. These radiological changes preceded the diagnosis and treatment of non-Hodgkin’s lymphoma.
(iv)Previous heavy cigarette smoking contributing to the development of chronic bronchitis with frequent acute exacerbations of acute bronchitis would have resulted in reduced pulmonary host defence mechanisms and probable airflow obstruction (COPD) rendering Mr New more susceptible to infections including pneumonia. These factors would also have contributed to delayed resolution of pneumonia.
(v)The major contribution to Mr New’s terminal illness and death was non-Hodgkin’s lymphoma with immunosuppression caused by the disease process and chemotherapy treatment. The effects of previous cigarette smoking (noted above) would have made a small but material contribution to his terminal condition and death. This contribution cannot be quantitated”[3].
[3] Exhibit 4: Medical Report by Dr J Armstrong dated May 22, 2008.
11. In cross examination, Dr Armstrong said pneumonia is a common terminal cause of death. Despite x-rays and CT scans, he said he could not make a diagnosis of a smoking related illness as the changes he observed were not necessarily classical indicators of cigarette smoking disease. He also noted that heavy smoking did not result in major evidence of emphysema in Mr New. He said problems would be revealed by tests of lung function performance and this did not seem to be a deficit in Mr New.
12. Dr Tony Allworth also provided a report dated 30 January 2008[4]. He also gave oral evidence by telephone. Dr Allworth is a consultant physician in infectious diseases. He noted Mr New was an ex-smoker but that there was no evidence of lung disease, which he suggested, was not uncommon with lymphoma diseases. On questioning by Dr Maynard, Dr Allworth said that there was radiological evidence of pneumonia in the lungs, but he said that this can also be characteristic of those who were not ex-smokers.
[4] Exhibit 1: T5; folio 59-60.
13. Dr Allworth had examined the veteran in December 2004. At that time he thought Mr New was not suffering from dyspnoea and the respiratory examination was normal[5]. Mr New was discharged from hospital approximately six months later in June 2005 when the lymphoma was considered to have been in remission. However, three months later in September 2005 a blood test showed that the lymphoma had returned aggressively and Mr New was readmitted to hospital on 8 September 2005. He subsequently passed away on 19 September 2005.
[5] Exhibit 1: T5; folio 59.
CONSIDERATION
14. We have considered all of the evidence and the statutory law in relation to the issues in this case.
15. The relevant legal provisions are:
“VETERANS' ENTITLEMENTS ACT 1986
s 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 section 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; or
(c) that the death was war‑caused or defence‑caused;
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.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…
s 120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a 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
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
16. There are preliminary issues which must first be satisfied. These are that the Applicant was a veteran and had undertaken operational service. The veterans’ service record verifies these facts and is not in dispute. The Applicant must also be shown to be the widow of the veteran. That was also accepted by both parties. In addition, the veteran must have shown to have died. A relevant death certificate was presented in evidence[6].
[6] Exhibit 1: T4; folio 21.
17. The Tribunal must next determine what was the “kind of death” suffered by the veteran. This is to determine whether a Statement of Principles applies to the death of the veteran and this is assessed according to the standard of proof on the balance of probabilities (s 120(4) of the Act)[7].
[7] Repatriation Commission v Hancock (2003) 37 AAR 383; [2003] FCA 711.
18. In determining the kind of death, the Tribunal must also determine a diagnosis. The Tribunal’s role in that regard is, with the assistance of the medical advice tendered, to determine what appears by the preponderance of evidence, to characterise the condition and/or symptoms exhibited by the veteran[8]. The Tribunal can also make an assessment of “…the collection of relevant symptoms amounting to a disease without necessarily attaching a label to that collection”[9]. I have taken account of the specialist evidence provided by Dr John Armstrong as well as the report by Dr Tony Allworth. Both of those specialist medical practitioners refer to a clinical condition of chronic bronchitis. They also refer to radiological evidence of non-Hodgkin’s lymphoma. The “kind of death” could therefore be seen to be a condition consistent with chronic bronchitis and/or non-Hodgkin’s lymphoma.
[8] Benjamin v Repatriation Commission (2001) 70 ALD 622; [2001] FCA 1879.
[9] Mines v Repatriation Commission (2004) 86 ALD 62; [2004] FCA 1331.
19. There is evidence of significant cigarette smoking by the veteran which is said to have commenced during military service and which appears to have contributed to chronic bronchitis and the greater propensity to contract infections and resist the resolution of those infections. There is ample legal authority that either or both of those conditions could be regarded as a “kind of death”. All that must be shown is that there must be some “attributability” or that the condition be a contributing cause of death. It not need be the sole or dominant cause[10]. When Law was considered by the High Court, it said “that it was sufficient if war service was one of a number of causes of a disease provided that it was a contributing cause”[11]. More recently the High Court has adopted a similar approach in Roncevich v Repatriation Commission[12].
[10] Repatriation Commission v Law (1980) 31 ALR 140.
[11] Repatriation Commission v Law (1981) 147 CLR 635 at 648 per Aicken J.
[12] Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40 at [27].
20. Therefore, while non-Hodgkin’s lymphoma appears to clearly have been the final cause of death, it is apparent from the evidence that pneumonia was also a condition in existence and which could be said to have expedited or contributed to the death of Mr New.
21. To determine the issues in this case, the substantive analysis is governed by the Repatriation Commission v Deledio[13] these are:
Step 1 Does the material, when taken as a whole, point to an hypothesis connecting the conditions contributing to death as being connected to Mr New’s service in the Australian Army?
[13] Repatriation Commission v Deledio (1998) 83 FCR 82.
22. The hypotheses raised are that Mr New suffered from a number of medical conditions which are related to service. These are that he began smoking in the Army, smoked on a long term basis and this resulted in chronic bronchitis; and that chronic bronchitis caused pneumonia and thereby contributed to the death of Mr New. In our view, there is adequate evidence to point to such a hypothesis. There is evidence of smoking during his military service and there was uncontradicted evidence that he commenced smoking during war service. There is evidence of related health issues as a consequence of smoking and those health issues appear to be directly connected, at least in a contributory way, to Mr New’s death. That is not to say that these are the only causes, as non-Hodgkin’s lymphoma is also clearly a condition which was present and which perhaps directly led to Mr New’s death in a more profound way. However, as the authorities outlined earlier indicate, the condition which is apparently related to operational service need not be the sole contributing cause and therefore the existence of another condition need not negative the potential impact in satisfying the legislative provisions. The hypothesis therefore cannot be denied.
Step 2 Is there a statement of principles (SoP) established under s 196B (2) of the act which is related to the conditions of the veteran?
23. The Applicant says there is no SoP for pneumonia. The Respondent points to SoP No. 30 of 2004 (Chronic Bronchitis and Emphysema) and Instrument No. 37 of 2003 (Non-Hodgkin’s Lymphoma). We accept that these SoP are relevant. Step 2 is therefore satisfied.
Step 3 Is the hypothesis in Step 1 a reasonable hypothesis?
24. The Respondent says that the death was due to non-Hodgkin’s Lymphoma but that there is no factor in SoP No. 37 of 2003 which is made out. The Respondent also contends that there is no medical evidence to support a conclusion that the veteran suffered from chronic bronchitis in months leading up to and including his death. Therefore, the Respondent’s position is that a finding that chronic bronchitis or emphysema could not have played a material or contributory role in the veteran’s death. Even if that is not the case, the Respondent says that the evidence pointing to the veteran commencing smoking or increasing smoking during eligible service is unreliable. As a result, the Respondent contends that there is no causal nexus between the veteran’s operational service and his death.
25. The Applicant on the other hand says that it is only necessary to show ‘attributability’ and that chronic bronchitis need only be shown to be one of a number of causes or a contributing cause. The Respondent’s advocate referred to the report of Dr John Armstrong dated 22 May 2008. In particular, Mr Kelly relies upon a statement by Dr Armstrong that the long term cigarette smoking “.. is likely to have made a contribution, albeit a small contribution, to Mr New’s death from pneumonia….. the major contribution to pulmonary infection in the period leading up to death would be immunocompromise due to the lymphoma and the effects of chemotherapy treatment”. Mr Kelly also refers to the medical history provided by the applicant, Mrs New, where she refers to her husband as always being susceptible to having colds and chest infections.
26. The essential question in answering step 3 is whether the raised facts point to the hypothesis linking bronchitis with operational service. That is, we must form an opinion about whether the hypothesis raised is consistent with the template found in the relevant Statement of Principles. On the basis of the Statement of Principles in relation to non-Hodgkin’s lymphoma, the evidence does not seem to directly ‘point to’ or be connected with the Applicant’s military service. On the other hand, the evidence seems to show the potential for smoking during military service being related to chronic bronchitis and therefore pneumonia, which is the cause of death.
27. Therefore, Step 3 is concerned with whether the raised facts in the hypothesis are consistent with SoP No. 30 of 2004 (Chronic Bronchitis and Emphysema). In that SoP, clause 4 refers to a requirement that, subject to clause 6, that at least one of the factors mentioned in clause 5 must be related to the veteran’s relevant service before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis with the death of the veteran. Factor 5(a) is concerned with smoking at least 5 pack years of cigarettes before the clinical onset of chronic bronchitis and/or emphysema. Factor 5(f) provides that smoking at least 5 pack years of cigarettes before the clinical worsening of chronic bronchitis and/or emphysema will satisfy the SoP.
28. The evidence of Dr Allworth who saw Mr New in September 2005 just prior to his death said that his problem then was an aggressive relapse of non-Hodgkin’s lymphoma but that there was “…rapidly progressive respiratory failure and renal impairment. A CT scan showed multi focal areas of predominantly bronco-centric consolidation more suggestive to me that the Pseudomonas aeruginosa grown from his sputum was the culprit rather than fungal infection…..” Dr Armstrong’s report dated May 22 2008 refers also to non-Hodgkin’s lymphoma but that recurrent bronchitis (based on radiological evidence) had preceded the diagnosis and treatment of non-Hodgkin’s lymphoma. He further says in the last paragraph of his summary (paragraph 5) that while acknowledging non-Hodgkin’s lymphoma as being the major cause of death, he says “the effects of previous cigarette smoking (noted above) would have made a small but material contribution to his terminal condition and death. This contribution cannot be quantitated”.
29. Therefore based on the above raised facts and without making any assessment of the evidence, there seems to be a reasonable hypothesis as there is evidence that chronic bronchitis which is related to pneumonia had at least a contributory effect on Mr New’s death. It may not have been the major cause but that is not what is required. All that is required is some “attributability” to the cause of death[14]. We do not think the hypothesis raised in relation to non-Hodgkin’s lymphoma is a reasonable one in terms of operational service.
Step 4 Can the Tribunal be satisfied beyond reasonable doubt that the veterans death was not war caused (s120(1)of the act).
[14] Repatriation Commission v Law (Supra).
30. This step of the Deledio process effectively requires us to consider whether we are satisfied beyond reasonable doubt that there is no ground for determining that Mr New’s death was due to his operational service. This step requires assessment of the evidence and to determine whether the facts show that the hypothesis is disproved[15].
[15] Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.
31. We make the following findings of fact:
(i)Mrs New was a reliable witness.
(ii)Some of the evidence which is attributable to the deceased veteran either about his service or about the timing of part of his service is either untrue or highly questionable.
32. We have already provided an account of the medical evidence. We have also determined that the kind of death attributable to Mr Paul New were non-Hodgkin’s lymphoma and chronic bronchitis. We accept that chronic bronchitis is the condition more directly attributable to Mr New’s smoking and therefore to his military service. But the question at step 4 is whether we are satisfied beyond reasonable doubt that the strength of evidence is such that there is no sufficient ground for determining Mr New’s chronic bronchitis was not due to his smoking during operational service?
33. Mrs New stated that the veteran had informed her that he commenced smoking during his operational service in Malaya due to the stressful conditions. We note the service was in the 1950s and that Mr New was a solider for approximately three years before he was posted to Malaya. The Respondent submits that the evidence pointing to the veteran commencing smoking in Malaya while he was on operational service does not exist or should be regarded as being unreliable.
34. We note that the evidence provided by Mrs New is largely hearsay and circumstantial. Equally, the evidence provided by Mrs Schabel of when she was a child in the 1950s could not be regarded as strong evidence, not only because of the passage of time but also because she had very little contact with or observation of the veteran. Her evidence is essentially to try and demonstrate that Mr New did not smoke prior to joining the Army.
35. In assessing this evidence, we are conscious that we are not strictly bound by the Evidence Act 1995 (Commonwealth). The factual evidence overall is largely circumstantial and while the medical evidence is strong in relation to the diagnosis of the conditions and probable causes of death of the veteran, it is not strong evidence or with any corroboration which assists in ‘attributability’ of Mr New commencing smoking while on war service. There seems to be no suggestion that he increased his smoking habit on war service but rather that he initiated a smoking habit at that time.
36. The contributory effect of medical evidence also has an interactive effect on the weight of evidence that can be linked to the veteran’s military service[16].
[16] Jones v Dunkel (1959) 101 CLR 298 at 298.
37. Section 120(1) provides that the hypothesis will be established unless the facts necessary to support the hypotheses are disproved or other facts are accepted as being inconsistent with the hypothesis raised. There are some apparent inconsistencies in the evidence of the Applicant, at least as far as it is attributable to the veteran. For example, it is said he served in Korea and Malaya. He told Mrs New he was also air dropped by parachute into Vietnam and that he was an engineer in Vietnam. This was apparently prior to Australia’s commitment to South Vietnam being commenced. We note the Applicant’s records of service and that he was allocated to the Corps of Royal Australian Engineers. There, he qualified as a driver, as a dog handler and as a plant operator. The records show that on completing his service in Malaya he was posted to Eastern Command, Sydney, in 1957. Considering that evidence, there would have to be some concern about the truth or efficacy of those claims. That is not to say that it may not be possible or that the soldier’s service record was incomplete, but given the veteran’s rank and trades for which he qualified in the Army, the likelihood of his participation in some secret operation in Vietnam during the era claimed seems highly unlikely. The credibility of those claims to military service is severely weakened in our view.
38. There is also the issue raised by the Respondent’s advocate that the photos tendered by Mrs New showing her husband in Malaya in April 1957 are clearly inconsistent with his official record. He was most certainly in Australia at that time. That error of course could be explained merely by the passage of time and his recollection as to dates merely being in error.
39. The evidence of Mrs Schabel who knew Mr New intermittently when she was a child, also seems to be of such little weight as to be insignificant.
40. We note that Dr Armstrong’s evidence indicates that the veteran may well have died even if may not have smoked and that making a diagnosis of smoking related illness is not possible in this case as some of the evidence is not necessarily consistent with a classical cigarette smoking disease.
41. The question then is – is the inconsistent evidence of such weight as to displace the reasonable hypothesis?
42. The Respondent referred us to Blair and Repatriation Commission[17]. That case was an appeal from this Tribunal on the basis that the Tribunal, in refusing an application, had found that a reasonable hypothesis was not established where the Applicant had not established facts which underlined the hypothesis raised. In dismissing the appeal, Heerey J held that a reasonable hypothesis is a question of fact[18]. His Honour further said that the Tribunal was required to examine the evidence and that:
“it is impermissible merely to assume or assert the facts which are said to found the hypothesis. For the reasons it gave it was quite open for the Tribunal to conclude that the critical elements of the hypothesis …… did not pass beyond the level of mere speculation. Indeed as to the latter element, there was positive adverse evidence and inferences pointing to the contrary.
Put another way, the hypotheses was shown to be contrary to the known scientific facts Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571”.
[17] Blair v Repatriation Commission [2005] FCA 1076.
[18] Repatriation Commission v Bey (1997) 79 FCR 364.
43. While the decision of Blair points to an approach in step 3 which is assessing whether the scenario “points to” upholding the hypotheses, step 4 is clearly about fact finding. The starting point is that the reasonable hypothesis will be regarded as established unless the facts are disproved. The questions raised above, about inconsistencies in the evidence, point to the weight of evidence being low or very low. In some respects, while inferences can be drawn about the contribution of smoking to the cause of death, and that evidence we regard as strongly linked to the Applicant’s smoking (and which consequentially is linked to military service), it does not link directly to the commencement of smoking on operational service. There are a number of inconsistencies which go to the veteran’s credit, and therefore credibility. The factual evidence of the level of stress is adversely affected by credibility issues.
44. The Respondent’s submission, which we accept, is a manifestation of s 55 Evidence Act 1995 (Commonwealth). It provides that the evidence that is relevant; “…is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings”. The words “if it were accepted” are critical. As McHugh J said in Papakosmos V.R (1999) 196 CLR 297 at [81], “…section 55 is itself a decisive answer…the words ‘if it were accepted ’…make it clear that a court assesses ‘ the probability of the existence of a fact in issue’ on the assumption that the evidence is reliable….”.
45. Considering the evidence as a whole, we are of the view that the deficiencies found in credibility of the veteran put the facts in the realm of speculation. There is oral evidence from Mrs New that Mr New had bronchitis (by inference) and no clinical evidence of abnormal lung function in the early stages of his terminal disease. The clinicians did not seem to see the need for lung function tests as there could have been caused by the terminal condition Non-Hodgkin’s lymphoma. If there was any basis to accept the hypothesis of bronchitis as being contributory from war caused smoking, we believe the circumstantial evidence is far outweighed by issues of credibility in what we would otherwise have to regard as assumed facts rather than established facts. In other words, we find that the truth of the facts asserted which are inconsistent with the hypothesis, are disproved beyond reasonable doubt.
46. The applicant therefore cannot succeed. The decision under review is affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member & Dr GJ Maynard, Brigadier (Rtd), Member
Signed:.......................[Sgd]....................................................... Elizabeth Young, Research Associate
Date/s of Hearing 10 September 2008
Date of Decision 27 October 2008
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Mr Terry O'Connor
Counsel for the Respondent Mr Jeff Kelly
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