O'Connor and Repatriation Commission - [2001] AATA 11

DECISION AND REASONS FOR DECISION [2001] AATA 11

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/390

VETERANS' APPEALS DIVISION       )
           Re      Maria Isabel O'CONNOR
  Applicant
           And    REPATRIATION COMMISSON
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date11 January 2001
PlaceSydney

Decision        The decision under review is affirmed.
  ..............................................
  M T Lewis,
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – war widows' pension – whether death of Veteran war-caused – Veteran died from ischaemic heart disease – Statement of Principles applied – smoking relevant factor in Statement of Principles – whether Veteran's smoking habit causally related to service

Veterans' Entitlements Act 1986 – ss 120(1), 120(3), 120A
Statements of Principles – Instrument No. 140 of 1996 and No. 38 of 1999

Keeley v Repatriation Commission (1999) 30 AAR 48
Repatriation Commission v Keeley (2000) 98 FCR 108
Dixon v Repatriation Commission (1999) 29 AAR 235
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

11 January 2001 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 6 January 1998 that the death of James Rochford O'Connor ("the Veteran") was not due to war service. Marie Isabel O'Connor ("the Applicant") sought review by the Veterans' Review Board ("the VRB"), and on 15 January 1999 the VRB affirmed the decision of the Respondent. The Applicant then lodged an application for review by this Tribunal on 16 March 1999.
At the hearing the Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing and her daughter, Mrs Lorraine Quinn, gave oral evidence by conference telephone.
background
The Veteran was born on 12 June 1908. He served in the Australian Army from 7 September 1940 to 1 March 1946, including overseas service. He died on 12 March 1982 of a myocardial infarction and ischaemic heart disease. The Applicant lodged a claim for war widow's pension in 1982 that was refused by a Repatriation Board. The Applicant lodged a second claim for war widow's pension on 8 December 1997, and it is that claim that is now the subject of this review.
legislation and issues
The Veteran had operational service, and therefore this application falls to be determined pursuant to ss120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"). Those subsections provide:
(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.
As the Applicant's claim was lodged after 1 June 1994 s120A requires the Tribunal to establish whether a Statement of Principles has been determined in respect of death from ischaemic heart disease. Instrument No. 38 of 1999 is the latest Statement of Principles that has been determined in relation to ischaemic heart disease. That Statement of Principles was gazetted after the Applicant lodged her application for review to this Tribunal, and in the process revoked the earlier Instruments.
At the time of the hearing on 24 March 2000 the Tribunal was advised that the Applicant did not seek to rely on her accrued rights: Heerey J in Keeley v Repatriation Commission (1999) 30 AAR 48. That decision was upheld by the Full Federal Court on 28 April 2000 in Repatriation Commission v Keeley (2000) 98 FCR 108. The Tribunal is now aware that, since the Full Court decision in Keeley, the Respondent maintains that it is necessary that the Statement of Principles in place at the time of the primary decision was made must be applied by the Tribunal, and in effect the Applicant must rely on her accrued rights. Because of the way the Tribunal has concluded this matter finally, it seemed prudent to apply both Statements of Principles, that is, Instrument No. 140 of 1996 and Instrument No. 38 of 1999.
The Applicant sought to rely on factor 5(f)(ii) of the 1999 Statement of Principles which provides –
(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i) ….
(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; …

The relevant factor in the 1996 Statement of Principles is 5(e) which provides –

(e)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of ischaemic heart disease and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; …

Many issues in this matter are not in dispute. Based on the concessions made on behalf of the Respondent, which the Tribunal considers were properly made, the Tribunal finds that the clinical onset of the Veteran's ischaemic heart disease was March 1970, and that he was smoking one pack years of cigarettes before the clinical onset of the condition. That concession was made in respect of the 1999 Statement of Principles. Indeed, the only factors at issue in the 1999 Statement of Principles are the date of commencement of the Veteran's smoking, whether he increased his smoking on service and if so the reason for his increase, and the date of his ceasing smoking. As the 1996 Statement of Principles was not at issue at the time of the hearing, no concessions were raised in respect of it.
At the time the Applicant lodged her first application for war widow's pension in 1982 she provided a written statement in the following terms (T4, p 18) –
To the best of my knowledge my husband smoked prior to enlisting in the Army & continued to smoke while in the Forces. He ceased smoking in 1947 on doctors (sic) orders. He was X-rayed at T.B. Clinic & was advised to give up smoking due to an enlarged heart & spleen.
In a further written statement (T8, p 29), apparently submitted at the time of her second claim, she wrote, in part –
…. He was a heavy smoker. He gave up smoking for a few months but soon started smoking again and continued to do so until his death in 1982.

In relation to her second claim she wrote, in response to a question "How did the veteran's or mariner's service cause, or contribute to his or her death?" (T7, p 26) –

He began smoking in the CMF. This increased significantly when he went overseas. He continued smoking heavily after his discharge until his death. Apart from a period of approximately 5 months when he gave up, he smoked heavily after this time

applicant's oral evidence

The Applicant could not explain her statement at T4 that the Veteran ceased smoking in 1947. She said that he stopped only for a few months at that time. She said that "perhaps" she made that statement because she was proud of him giving up smoking, but she also said that she did not know why he resumed smoking shortly afterwards and they did not discuss it. The Applicant said that the Veteran then continued to smoke from later in 1947 until his death. She said she understood that the Veteran had been advised to cease smoking because of his health and that he had an enlarged heart. Thereafter her evidence was quite confused as to whether that advice was given to her husband about his enlarged heart in 1947, as she had stated at T4, or after the diagnosis of his heart condition in 1970, or some time before his death in 1982.
The Applicant said that the Veteran was six years' older than she was, that she started going out with him when she was aged 17 years, and at that time he was smoking. She had some difficulty in estimating the amount he was smoking at that time, but thought it might be 10 or 12 per day. She said she commenced smoking when she was 17 years old. She and the Veteran married on 6 June 1936. She recalled that after they married she purchased one carton of cigarettes each week with her grocery order which they both used. There were 10 packs of 20 cigarettes in each carton. She was not aware if the Veteran purchased cigarettes at any other time. She said that before the war they both smoked about the same quantity.
The Applicant was unable to explain why she had written on her claim form that the Veteran began smoking when he was in the CMF and she said that the statement was wrong. She also admitted that she had written the statement.
The Applicant said that before the war her husband's temperament was "very good". The Veteran enlisted in the Army in 1939. After the war his temperament changed. He was rather demanding. He was very restless while sleeping and suffered from nightmares for a couple of years after his discharge from the Army. She told the Tribunal that the Veteran said "very little" about his war experiences.
The Applicant said that she was not aware of the amount the Veteran smoked while he was on service, but when he returned home on leave she considered that he was smoking "much the same quantity" as before he left. She assumed that he received a ration of cigarettes.
The Applicant said that when the Veteran returned home after the war his smoking had increased compared with the amount that he smoked before his enlistment. However, she continued to purchase a carton of cigarettes each week with her grocery order. Again she did not know whether he purchased any cigarettes additional to those which she bought and which they shared. She said that she might have smoked half of the carton each week, but she was not sure.
The Applicant said that she did not think that the Veteran smoked as soon as he got out of bed but he would smoke after he had eaten breakfast. She would also observe his smoking when he returned from work. She could not recall the number of cigarettes he would smoke of an evening.
The Applicant said that she ceased smoking after she had been in hospital for a month in 1971 following a heart attack. From that time onwards she said that she continued to buy a carton of cigarettes for the Veteran. She did not buy them every week - only when they were needed. The Applicant said that she did not encourage her husband to give up smoking when she gave up as she thought if he wanted to continue to smoke that "was his affair".
On cross-examination the Applicant stated that before service she would buy a carton of cigarettes a week and that she and the Veteran would smoke about half of the carton each. After service she said she would buy a carton when necessary, which she later said was at least every two weeks. The Applicant agreed that the Veteran would take approximately a fortnight to smoke a carton of cigarettes after she had given up smoking around 1970/1971.
oral evidence of mrs lorraine quinn
Mrs Lorraine Quinn, the Applicant's daughter, gave oral evidence by telephone at the hearing. She said she first remembered her father smoking after coming home from the war. She said he would smoke about a packet of 20 cigarettes a day. Mrs Quinn said that she knew her father smoked a packet a day because she would go shopping with her mother and buy a carton of cigarettes every week. She said she observed her father smoking from this time onwards. She said when she left home she visited twice a week and observed the Veteran's smoking then. Mrs Quinn said that she would accompany her mother shopping once a week after she left home until the Veteran stopped working around the 1960s. She said that from the 1970s onwards she no longer accompanied her mother shopping.
Mrs Quinn said that the Veteran continued to smoke until his death, and she was not aware of any period when he ceased smoking even for a short period. She noted that in 1947 she was only ten years old, and she doubted that she would have observed that he had ceased smoking when she was that age, if it had occurred. At no time did she have any knowledge that the Veteran had stopped smoking temporarily, or that the Applicant had ever alleged that he had. She was not aware of the Applicant's statement at T4.
Mrs Quinn's evidence was somewhat different from that of the Applicant. She said from her observation of her parents' smoking habits, the Applicant's smoking was only ever as "a social smoker" and she "did not smoke that many at all". She said that her mother would have one after a meal and if people came around and perhaps a couple through the day. However she recalled that each morning her father would open a new packet of cigarettes, and she estimated that he smoked a packet a day. She said that the Applicant eventually ceased smoking, but she thought that was not until after the Veteran's death. When she was asked specifically whether she recalled her mother continuing to smoke after her heart attack she explained that the Applicant had had a few heart attacks, and she thought she had continued smoking beyond those events. However, she then became uncertain as to when the Applicant had ceased smoking.
submissions
It was submitted for the Applicant that on the basis of the death certificate (T10, p31) the clinical onset of the Veteran's ischaemic heart disease was 12 years prior to his death on 4 March 1970. On the basis of the Applicant's oral evidence the Veteran commenced smoking prior to his enlistment and when they started keeping company when she was aged 17 years. Thus at that time the Veteran would have been 22 or 23 years old. On her evidence, from the time they married on 6 June 1936 it was her regular practice to purchase a carton of cigarettes a week that they shared, perhaps each smoking a similar quantity.
It was the Applicant's evidence that the Veteran's smoking increased during his overseas service, that he received cigarette rations while in the Army, and that he maintained his increased level of smoking after service and until the time of his death, apart from a five month period when he ceased smoking temporarily. It was submitted that, on the evidence of the Applicant, the Veteran smoked at least 20 cigarettes a day equating to 140 cigarettes a week.
The Applicant conceded that the evidence of Mrs Quinn and the Applicant was contradictory in respect of the amount smoked by the Veteran and the Applicant. Despite this contradiction in the evidence it was submitted that on the evidence the Veteran's war service was still a contributing factor in his ischaemic heart disease because of the provision of cigarette rations by the Army.
It was submitted for the Applicant that there is a reasonable hypothesis that the provision of cigarette rations to the Veteran caused the increase in his cigarette consumption. It was submitted that the provision of rations was over and above what he would have consumed had he not served. It was submitted that therefore the Applicant satisfies factor 5f(ii) of the 1999 Statement of Principles if the Tribunal finds that the Veteran increased his smoking consumption as a result of his war service, based on Mrs Quinn's observations of his smoking history thereafter.
It was submitted for the Respondent that factor 5(e) of the 1999 Statement of Principles is the relevant factor in this case. It provides –
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation; …
The Respondent noted the statement of the Applicant in 1982 (T4, p 18) where she stated that the Veteran had ceased smoking in 1947. It was submitted that the statement was prepared six months after the Veteran had died so it is more likely to be reliable than any statement made 15 years later. The Respondent submitted that if the Tribunal accepted that the Veteran ceased smoking in 1947 then the relevant factor would be 5(e). It was submitted that none of the paragraphs in factor 5(e) would apply given that the Veteran ceased smoking 23 years before the onset of his ischaemic heart disease.
The Respondent noted that the Applicant was unable to properly address why she had stated that the Veteran had ceased smoking in 1947. As she was claiming war widow's pension at the time she would have been aware of the need to put her best case forward, which was that the Veteran had continued to smoke until the date of his death rather than stating that he stopped smoking 35 years previously. The Respondent also noted that the Applicant apparently did not feel any shame about smoking.
The Respondent then addressed factor 5(f)(ii) of the 1999 Statement of Principles, on which the Applicant relied. The Respondent submitted that there is no evidence of an increase in smoking. The Applicant's evidence was that she purchased a carton of cigarettes for the Veteran approximately once every fortnight when she gave up smoking in 1971. Certainly it was not a weekly purchase. The Respondent submitted that on this evidence an increase in smoking has not been demonstrated. Further, there is no evidence that the Veteran made any purchase of cigarettes himself. It was also submitted that the Applicant appeared to be quite certain that the Veteran stopped smoking in 1947, at the time of his Tb. x-ray, when he was advised to cease smoking because of an enlarged heart and spleen.
In respect of Mrs Quinn's evidence, the Respondent submitted that she was unable to comment on the quantity of cigarettes her father or mother smoked and how they divided up the cigarettes the Applicant purchased. Further, Mrs Quinn was unable to comment on her mother's cigarette shopping after 1970.
The Respondent submitted that there is not a lot of evidence in this case but there are a lot of inconsistencies. On that basis the Respondent submitted that a reasonable hypothesis had not been made. The Respondent submitted that there were some credibility problems with both witnesses.
consideration of evidence and findings of fact
In Dixon v Repatriation Commission (1999) 29 AAR 235, Wilcox J held that it was erroneous for the Tribunal to consider the integrity of the Applicant's evidence at the stage of addressing the reasonableness of a hypothesis, since this should be left to the final stage of its reasoning process in deciding it was satisfied beyond reasonable doubt that a claim which fitted the factors in a relevant Statement of Principles was without justification pursuant to s120(1) of the Act in accordance with the following test established in Repatriation Commission v Deledio (1998) 83 FCR 82, (at 97, 98) –
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 raise such a hypothesis, the Tribunal must then ascertain whether there is in force a 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.
3. If a 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 ss196B(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 s120(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.

Wilcox J in Dixon stated that in determining step 2 of the Deledio test, the decision maker is not concerned with the accuracy of the material giving rise to the hypothesis, as the decision maker is still operating under s120(3); it is only at step 4 of the test that it is necessary to find facts from the material before it and that the truth of claims is a step to be carried out in the obligation imposed at that stage by s120(1) to decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused.
Following the decision-making process set out by Wilcox J in Dixon (supra), the hypothesis raised by the Applicant is that the Veteran's smoking increased on service as a result of being supplied with cigarette rations, that he then continued to smoke as much after service as he did before service, and after ceasing smoking for some months in 1947 he resumed smoking at about the same level as he had smoked previously.
The Applicant relies on factor 5(f)(ii) of Instrument No. 38 of 1999. Applying that factor of the Statement of Principles, a reasonable hypothesis is raised on the basis that the Veteran's smoking did not cease prior to the clinical onset of ischaemic heart disease in 1970, and the Veteran was smoking at least one pack year of cigarettes before the clinical onset of ischaemic heart disease. The Tribunal notes that the integrity of the Applicant's evidence is not to be considered at this stage. The Applicant has fulfilled the requirements of s120(3) of the Act. Similarly, if factor 5(e) of the 1995 Statement of Principles is to be applied, a reasonable hypothesis has been raised on the basis of the Applicant's evidence.
Turning now to s120(1) of the Act, the Tribunal is required to make findings of fact. The Tribunal finds that the Applicant was not a reliable witness and little weight can be given to her evidence. Her evidence was inconsistent with previous documentary evidence, it was inconsistent from one part to another of her own evidence, and some was inconsistent with that of Mrs Quinn. Moreover, and importantly, the Applicant's oral evidence was internally inconsistent. She said on the one hand that the Veteran's smoking increased when he returned after his overseas service. She said that he maintained that level of smoking until he died, except for the period of a few months in 1947 when he ceased smoking temporarily. She also said that before he commenced service she bought a carton of cigarettes a week and shared them, probably equally. Additionally, after he returned from his overseas service she continued to buy a carton of cigarettes a week, which they shared. She did not indicate that her smoking habit changed in any way until she ceased smoking in 1970 or 1971, at which time she reduced the frequency of cigarette purchasing, and thought it was at least fortnightly. She also said that she was not aware of the Veteran purchasing his own cigarettes at any stage. On the basis of this evidence the Tribunal considers that it is inconsistent for her to say that he increased his smoking on return from his overseas service and that he maintained that increase. The rest of her evidence does not support that in any way. Moreover, the Tribunal is concerned about the credibility of the Applicant in the light of her other inconsistent statements and her inability or unpreparedness to explain how those earlier statements came to be made. Mrs Quinn's evidence does not go to any comparison between the amount the Veteran smoked before and after his service, and therefore her evidence is not useful. Insofar as her evidence is useful it shows up further inconsistencies in the Applicant's evidence, especially in respect of the amount which the Applicant herself smoked.
The Tribunal also notes the conflict in the Applicant's evidence about when the Veteran commenced smoking. The Tribunal is reasonably satisfied that the Veteran commenced smoking well prior to service and indeed prior to his marriage, and that he had a firmly established smoking habit by the time he enlisted.
The Tribunal is satisfied beyond reasonable doubt that the Applicant has fabricated her evidence in an attempt to improve her chance of succeeding with her claim. However, even if the Tribunal was to accept her evidence, it does not support the hypothesis that the Veteran increased his smoking on service and maintained his smoking at that level for the rest of his life.
It is not clear whether the evidence that the Veteran ceased smoking in 1947 was the correct evidence or that he continued smoking until his death, but the Tribunal's decision does not turn on that point. The Tribunal was more impressed with the evidence of Mrs Quinn, although there were some limitations on that evidence because she gave it by telephone and therefore the Tribunal was unable to observe her demeanour, an observation that is always important in assessing credibility. On the basis of Mrs Quinn's evidence, the Tribunal is more inclined to the view that the Veteran continued to smoke until his death. Despite the doubts cast by the inconsistency in the evidence, and evaluating all the evidence, the Tribunal is reasonably satisfied that the Veteran continued to smoke on average one packet of cigarettes a day, until the time of his death, and that this was his pre-service level of smoking. The Tribunal is satisfied beyond reasonable doubt that there was no contribution to the Veteran's smoking habit by his service, notwithstanding that he might well have been issued with cigarettes rather than having to buy them himself.
It was submitted for the Applicant that because the Army provided him with cigarettes this was sufficient to identify a contribution of the Veteran's smoking habit to his war service. The Tribunal rejects that submission. The Veteran already had a well-established smoking habit. All that the Army was doing was to provide cigarettes that he used to continue his habit.
The Tribunal is satisfied beyond reasonable doubt that there is no nexus between the Veteran's smoking and his war service, and therefore the Tribunal is satisfied beyond reasonable doubt that the Veteran's death from ischaemic heart disease was not related to his war service. The decision under review is therefore affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24 March 2000
Date of Decision  11 January 2001
Solicitor for the Applicant         Ms J Buchanan, Legal Aid Commission
Solicitor for the Respondent    Ms S Breuer, Dept of Veterans' Affairs