PATRICIA MARY DUNBABIN and REPATRIATION COMMISSION
[2009] AATA 730
•24 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 730
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2943
VETERANS' APPEALS DIVISION ) Re PATRICIA MARY DUNBABIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Dr R Walters RFD (Part-Time Member)Date24 September 2009
PlaceHobart
Decision The decision under review is affirmed.
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - widow's claim for pension - kind of death - whether causes of death from cerebrovascular disease and diabetes mellitus were war-caused - defence service - Tribunal satisfied on balance of probabilities that the late veteran's smoking habit was not related to service - decision under review affirmed
Veterans' Entitlements Act 1986, ss 8, 13, 120(4), 120B, 196B(3),
Statement of Principles - Cerebrovascular Accident No 52 of 2006 - Diabetes Mellitus Instrument No 12 of 2004
Repatriation Commission v Smith (1987) 15 FCR 327
Collins and Repatriation Commission (2009) FCAFC 90
Repatriation Commission v Law (1981) HCA 57)
Fitzgerald v Penn (1954) 91 CLR 268
Re Brown and Repatriation Commission [2003] AATA 1010
Collins v Repatriation Commission (2008) FCA 1982
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission (2003) FCAFC 136
Repatriation Commission v Cornelius (2002) FCA 750.
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Edwards (1993) FCA 434
REASONS FOR DECISION
24 September 2009 Ms A F Cunningham (Senior Member)
Dr R Walters RFD (Part-Time Member)1. The applicant, Patricia Dunbabin, is the widow of William Dunbabin (the Veteran), who died on 13 July 2007 at the age of 83 years. On 22 August 2007, Mrs Dunbabin lodged a claim for Widow's Pension on the basis that the veteran's death was war-caused. The claim was refused by the Repatriation Commission and the Veterans' Review Board. Mrs Dunbabin has applied to the Tribunal for a review of the decision.
Legislation
2. The claim for Widow's Pension is made under the Veterans' Entitlements Act 1986 (Cth) (the VE Act). Section 13 provides that where the death of a veteran was "war-caused", the Commonwealth is liable to pay a pension by way of compensation to a dependant of the veteran.
3. A war-caused death is defined in section 8 which relevantly provides:
"(1) Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war‑caused if:
...
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran..."
4. The issue as to whether the veteran's death was war-caused is determined in accordance with the standard of proof prescribed in section 120 of the VE Act.
5. The essential pre-conditions to establish the claim that were not in dispute are as follows:
·that the veteran served in the Royal Australian Air Force from 27 March 1942 to 21 December 1945
·that Mrs Dunbabin was the wife of the veteran who died on 13 July 2007 from cerebral haemorrhage
6. The veteran's service with the RAAF took place in Australia. A summary of the veteran's record of service was tendered in evidence. The document records that after leaving Ascot Vale, Melbourne the veteran served in Birdum, Northern Territory from 27 November 1943 until 2 December 1943 when he was posted to Darwin. The uncontested evidence was that the last recorded air raid attack against Darwin and the Northern Territory in World War II was No 64 on 12 November 1943. There are no recorded air raids against Birdum or Alice Springs where the veteran also served for a period from 28 July 1944. The RAAF records state that the veteran was on pre-embarkation leave on the date of the last Japanese air raid. There is no evidence that the veteran was therefore involved in any operational service. The Tribunal is satisfied that the veteran's period of service constituted defence service under the provisions of the VE Act.
7. In accordance with section 120(4) of the VE Act the Tribunal must accordingly decide all matters to its reasonable satisfaction, a standard which equates with proof on the balance of probabilities (Repatriation Commission v Smith (1987) 15 FCR 327).
Kind of Death
8. The parties to the appeal agree that the immediate cause of the veteran's death was a cerebral haemorrhage which is recorded in the Medical Certificate as the Part 1 Disease or condition directly leading to death. Other significant conditions recorded in Part 2 of the certificate are Type 2 Diabetes and Prostate Cancer. The Medical Certificate of Death records that the clinical onset of the cerebral vascular event occurred approximately three weeks prior to the veteran's death.
9. Sections 8 and 13 of the VE Act refer to the "death" of a veteran. The term "kind of death" is introduced by sections 120B(2) and 196B(3) in the expression "particular kind of injury, disease or death" which are referrable to the assessment of "reasonable satisfaction" by reference to Statements of Principles (SoPs).
10. The Full Court of the Federal Court recently stated in Collins and Repatriation Commission (2009) FCAFC 90 at paragraph 44 that they considered the word "death" as used in section 8 and the phrase "injury, disease or death" in section 13 as having the same meaning being the nature of the condition which causes the death. The Full Court accepted that this means the medical cause(s) of the death.
11. The Full Court went on to say at paragraph 47:
"Hence, the "kind of death" in terms of ss 120A(2) and (4) is also one which refers to the medical cause or causes of death"
and referred to several decisions in support.
12. The assessment of the kind of death is made prior to the application of any SoPs which are considered in the determination as to whether the kind of death is war-caused.
13. It is accepted that there may be multiple medical conditions which cause a particular death (Collins v Repatriation Commission (2008) FCA 1982; Repatriation Commission v Law (1981) HCA 57)
14. The veteran's "kind of death" has been defined as "the real or operative cause of death as opposed to the final stage of the process of dying" (Re Brown and Repatriation Commission [2003] AATA 1010 at para 6). The Tribunal in that decision referred to the words of the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276 which said that the Tribunal must ascertain whether a particular illness or disease could fairly and properly be considered the cause of death. Emmett J in Collins v Repatriation Commission (supra) said at para 21 that:
"The question of the kind of death met by a veteran is a question of medical causation of the death, although that might include contributing or underlying causes in a sense to which I have already referred".
15. Identification of the kind of death is determined on the balance of probabilities in accordance with section 120(4) of the VE Act (see Fogarty v Repatriation Commission (2003) FCAFC 136 at 34; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 53-54).
16. Professor John Cade, Principal Specialist in Intensive Care at the Royal Melbourne Hospital gave oral evidence with respect to the cause of the veteran's death. Tendered in evidence was a report written by Professor Cade dated 21 October 2008. The report was written following Professor Cade's examination of extensive documentation forwarded to him by the respondent's advocate.
17. In his report Professor Cade said the death certificate is likely to be correct and concluded:
"There can be no reasonable doubt that the immediate cause of death in this case was massive cerebral haemorrhage".
Whilst he noted that the underlying cause of the cerebral haemorrhage is less clear, he opined that the combination of the anticoagulant medication taken by the veteran (which carries a well recognised risk of causing haemorrhage) and cerebrovascular disease was the more likely cause in this case. He noted that the common macro vascular causes of cerebral haemorrhage ie aneurysm or arteriovenous malformation had been excluded in this case by CT angiogram.
18. In his oral evidence before the Tribunal Professor Cade stated that whilst the documentation did not suggest that the veteran's Type II Diabetes "was out of control" at the time of his death, he considered that it had contributed to his death by predisposing him to the cerebral haemorrhage. In his words "the diabetes was germane" to the veteran's death.
19. Professor Cade agreed with a report from Dr R Macintrye Smith dated 26 February 2008, who opined that the veteran's death:
"May be attributable to long standing diabetes mellitus, no matter how well controlled, contributing to several ischaemic episodes. His damaged cerebral arteries were unable to withstand multiple assaults, and cerebral haemorrhage was the terminal event".
20. The Tribunal is accordingly satisfied on the balance of probabilities that the underlying medical conditions causative of the veteran's death were cerebrovascular disease and diabetes mellitus which contributed to cerebral ischaemia.
Was the Death War-Caused
21. As Mrs Dunbabin's claim was lodged after 1 June 1994, the provisions of section 120B are relevant and provide:
"(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 eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For 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(3) 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) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(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(3), 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".
22. The claimed connection between the veteran's service and his death is his smoking. It is the applicant's contention that the veteran did not smoke before his enlistment in the RAAF at the age of 18, but began his smoking habit during his service years. It is contended that the veteran's smoking habit continued after his discharge in December 1945 until around the time a definitive diagnosis of Type II Diabetes was made in August 1997. The respondent submits that there is no temporal or causal connection between the veteran's smoking habit and his service and relies on the documentation contained in the veteran's medical files which were tendered in evidence.
23. The Statements of Principles referrable to the veteran's kind of death are: Cerebrovascular Accident No 52 of 2006 and Diabetes Mellitus Instrument No 12 of 2004.
Cerebrovascular Accident
24. The factors that must exist before a connection can be established between death from cerebrovascular accident and a person's service are listed in paragraph 6. The factors relied upon by the applicant are contained in sub-paragraph (l) relating to cerebral ischaemia which was proffered by Dr Macintyre Smith and accepted by Professor Cade as causative of the veteran's death.
25. It was conceded on behalf of the applicant that the circumstances of the veteran's smoking habit do not satisfy factor 6(l)(ii):
"(A) having smoked an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident, and the clinical onset of cerebrovascular accident has occurred within five years of cessation; or
(B) having smoked an average of at least twenty cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident"
26. The evidence from the witnesses who were called on behalf of the applicant suggest that the veteran had ceased smoking by the late 1990's. This is more than five years before the clinical onset of cerebral ischaemia which the Tribunal accepts occurred just prior to the veteran's death.
Diabetes Mellitus
27. The other factor relied upon is contained in sub-paragraph (iii):
"Having diabetes mellitus at the time of the clinical onset of cerebrovascular accident".
28. There is evidence in the veteran's medical notes and reports including the Death Certificate which confirms the presence of diabetes mellitus at the time of the veteran's death and the clinical onset of cerebrovascular accident.
29. The factor relied on in the Statement of Principles relates to the veteran's smoking habit and is contained in factor 5C which reads as follows:
"In relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within five years of cessation".
30. The term "clinical onset" has been accepted as meaning either when a person first becomes aware of some feature or symptom which enables a doctor to say that the disease was present at that time or when a finding is made on investigation which indicates to a doctor that the disease is present. (See Repatriation Commission v Cornelius (2002) FCA 750). Whilst an entry in Sorell Medical Notes made on 20 May 1992 is suggestive of symptoms, a blood sugar level test undertaken on 27 May 1992 indicated levels on the upper end of normal which is not indicative of the presence of diabetes at that stage. The diagnosis was made on the basis of a definitive glucose tolerance test on 18 August 1997.
31. The Tribunal accordingly accepts that the clinical onset of the veteran's Type 2 Diabetes was around the time of proven diagnosis on 19 August 1997.
Smoking
32. The issues that the Tribunal must next decide are firstly, whether the veteran's smoking consumption met the requirements of sub-paragraph (c) of at least ten pack years; secondly, the date when the veteran ceased smoking; and thirdly as required by paragraph 4 and the relevant legislative provisions of the VE Act, whether the veteran's smoking habit was related to his service.
33. The term "pack years of cigarettes or the equivalent thereof in other tobacco products" is defined in the Statement of Principles as:
""Pack years of cigarettes or the equivalent thereof in other tobacco products" means a calculation on consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7,300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7,300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination".
34. It was Mrs Dunbabin's evidence that she met the veteran at Christmas time in 1948 when she was aged 19 years and he was approximately 25 years of age. She recalls that he was smoking a pipe almost constantly and smoked cigarettes socially. They were engaged in 1949 and married on 14 October 1950.
35. Mrs Dunbabin said that the veteran had told her many times that he did not smoke cigarettes or drink alcohol before joining the Armed Services. The RAAF medical report of 1 August 1941 records "smoking nil, alcohol nil". Annexed to Mrs Dunbabin's proof of evidence was a copy of a handwritten reference report addressed to the RAAF from Derek W Kingston dated 5 August 1941. Mr Kingston records that the veteran was a "teetotaller and non-smoker".
36. It was conceded by Ms McCulloch on behalf of the respondent that the veteran was a non-smoker at the time that he joined the RAAF. There is no evidence to the contrary and the Tribunal accepts that this was the case.
37. Evidence was given by the veteran's two sisters, namely Dora Winifred Theunissen and Anne Vincent, that they recalled that the veteran was smoking when he returned from the war. Mrs Theunissen recollected that whilst the veteran was a regular smoker after returning from the war, he smoked surreptitiously because his mother and brother strongly disapproved of smoking. After his mother's death, the veteran smoked openly.
38. Mrs Theunissen recollected the veteran telling her how the RAAF provided a regular and liberal supply of cigarettes during his period of service in the Northern Territory. It was Mrs Theunissen's recollection that the veteran was a moderate smoker until her mother's death in 1948 when his smoking habit gradually increased. Mrs Theunissen recollected that the veteran also smoked a pipe. Mrs Theunissen considered that the veteran became a fairly heavy smoker by which she meant a consumption of approximately a packet of cigarettes a day.
39. Mrs Theunissen claimed that the veteran ceased smoking in the late 1990's. She recalls this because she was a smoker at the time and the veteran lectured her about giving up because cigarettes had become so expensive.
40. Mrs Vincent recalls seeing the veteran smoking when he was home on leave in around 1944. She was ten years younger than her brother and a boarder at the Friends’ School when the veteran returned home after the war. She saw a lot of him when she went home during school holidays and recalled that he was constantly smoking a pipe and also smoked cigarettes.
41. Whilst Mrs Vincent said in her statement that her brother:
"was still definitely smoking heavily all through the 1980's and 1990's"
she had no actual memory of him ceasing smoking and remarked:
"... family members including my sister Dora and my sister-in-law Pat had told me he stopped in the late 1990's".
42. The evidence from these witnesses satisfies the Tribunal that the veteran was a non-smoker prior to his enlistment with the RAAF, first commenced smoking during his service and later increased his consumption of both cigarettes and pipe tobacco after service.
43. There was conflicting evidence as to the veteran's smoking habit and date of cessation. It was Mrs Dunbabin's evidence that when she first met the veteran he smoked a pipe almost constantly and also smoked cigarettes socially. This pattern continued after their marriage in 1950 until around 1954. Mrs Dunbabin's states that after they moved to Stonehenge in around 1954 the veteran increased his cigarette consumption and smoked his pipe less frequently. Mrs Dunbabin and the veteran then lived at Swanston in the Midlands until around 1986 when they moved to live at Dunalley. They then lived on a boat which the veteran had built between 1986 and 1988.
44. Mrs Dunbabin claimed that the veteran was still smoking between 1986 and 1988 when they lived on the boat. She recalled that he was smoking cigarettes but could not recall whether he also smoked his pipe during this time. She estimated that:
"He smoked a good packet, if not more, every week".
45. Mrs Dunbabin's evidence as to when the veteran ceased smoking was a little confused. In her written statement she maintained that he stopped smoking in 1997 when he was diagnosed with Diabetes Mellitus. When asked during her evidence-in-chief as to when the veteran gave up smoking after 1986 she said:
"... it would have been in the mid-1980's anyway".
She later stated that it was 1997 when they had lived on the boat. The veteran gave up fishing in 1997.
46. There are several entries in the veteran's medical notes recording that he was an ex-smoker, however the dates as to when this occurred vary. When this evidence was put to Mrs Dunbabin she agreed that the veteran had no reason to inform the doctors that he was an ex-smoker if this was not in fact the case and went on to state:
"Have I got the dates wrong with the smoking. Was it 87 that he gave up smoking not 97?"
47. Later on when a medical record of 1998 stating that the veteran had given up smoking 15 or 20 years previously, which made it either 1983 or 1978, was put to Mrs Dunbabin, she replied:
"Well, he was definitely still smoking in 83".
48. The various medical records which refer to the veteran's smoking habits include two entries in the Royal Hobart Hospital records, both on 17 September 1998 and read as follows: "Gave up smoking 15 to 20 years ago; ex-smoker 15 y". A discharge summary of 22 September 1998: "smoke pipe 6 times daily for 40 years stopped 10 years ago". There are entries in the Sorell Medical Clinic notes which state: an undated first entry "ex-smoker". A dated entry of 20/5/92 states "ex-smoker". In a referral to Dr Yeo dated 20/5/92 the doctor noted "ex-smoker".
49. Another reference in a Hobart Private Hospital report of 13 June 2007 states that the veteran had ceased smoking 40 years previously. This note was referenced by Dr McGaughey in a report to Dr Jones. This would however have meant that the veteran had ceased smoking around 1967 which is not supported by any other evidence. This entry was made at the time when the veteran was admitted to hospital, clearly unwell and with signs of dementia. The notes record that he was confused, impulsive and unsteady. It is not clear by whom the history was given although family members were present at the time. The Tribunal accepts that that entry which referred to the veteran having ceased smoking 40 years previously is clearly incorrect.
50. The other recorded medical notes made in 1992 and 1998 are more consistent and relate to the veteran having ceased smoking in the 1980's and not the late 1990's as contended by the applicant. Mr Mackie on behalf of the applicant submitted that there are a number of reasons why a patient may give incorrect information to a doctor about his smoking habits. These could include mental illness, frailty, shame or embarrassment. As noted above these may be acceptable explanations for the incorrect recording in the medical notes in 2007, however the earlier entries are not so easily explained.
51. On 3 November 1982 in a letter to Dr Simpson, Dr Nightingale recorded:
"He smokes 6 ozs pipe tobacco per week, takes occasional alcohol and intermittently takes btz or naprosyn".
The veteran was then 59 years of age. It was recorded by Dr Nightingale than on examining him "he looked quite fit". The veteran had not tried to hide his smoking habit from Dr Nightingale at that time. In 1998 a detailed history was recorded at the Royal Hobart Hospital. There was no evidence that the veteran was mentally or physically impaired. The medical officer recorded that he had given up smoking 15 to 20 years ago.
52. The other witness to give evidence regarding the veteran's smoking habit was his son, Mr John Dunbabin. Mr Dunbabin stated in his affidavit that he had no memory of his father ever giving up smoking at any time prior to his diagnosis of diabetes. He contended that any medical notes that suggested that his father had given up smoking prior to the late 1990's are not correct. Mr Dunbabin said that he could remember the day when his father announced that he would not be smoking anymore and he just stopped. He maintained that this was on a date in the late 1990's and the reason why he recalled this was that he was still smoking at the time and thought that perhaps he should give up as well.
53. Mr Dunbabin maintained that his father decided to give up smoking because he had suffered two strokes and a third one which was quite major. There is however no evidence in the medical notes that the veteran had suffered any strokes. Indeed in two patient questionnaires completed by the veteran with respect to his medical fitness for a drivers licence completed on 19 May 2004 and 14 June 2005 he answered "no" to the question as to whether he had ever had a stroke.
54. When further questioned as to why he recalled that his father gave up smoking around 1997/98, he said that it was well after he had built the boat and had left the farm. The evidence was that the veteran left the farm to live on the boat in around 1986. It was Mr Dunbabin's evidence that he assisted his father in the construction of the boat but only accompanied him away on a fishing trip on one or two occasions.
55. When asked why he specifically remembered 1997/1998 Mr Dunbabin replied:
"Because that was just the time I remember him giving up".
He went on to state:
"I've never ever pinpointed an exact year, because I have never really known the exact year, other than it was around that period".
56. Mr Dunbabin did not connect his father's cessation of smoking with any particular event. The fact that Mr Dunbabin was still smoking at the time and had contemplated ceasing does not really assist.
57. Mrs Vincent said that her brother was still smoking heavily all through the 1980's and 1990's. However it would appear that she was relying on what she was told by other family members as she said that she had no actual memory of him stopping smoking. It was Mrs Theunissen's evidence that the veteran ceased smoking in late 1990. Why she remembered this was because she was a smoker and her brother had lectured her about ceasing smoking. This could have occurred at an earlier time however, in the late 1980's.
58. Mrs Dunbabin was also confused as to the exact date when the veteran had ceased to smoke and at one point conceded that it may have been in the late 1980's. Both she and Mr John Dunbabin were adamant that the veteran was still smoking during the construction of the boat. Mrs Dunbabin remembered when construction of the boat commenced, when they started fishing in 1986 and the date when Mr Dunbabin was diagnosed with diabetes. Her recollection of these dates was clear and emphatic. Mrs Dunbabin would be aware that a finding that the veteran ceased smoking in the late 1980's would be detrimental to her claim in that the relevant SoP could not be satisfied.
59. On the other hand the Tribunal has no real reason to doubt the medical notes as recorded in 1992 and 1998 referred to above. They are consistent in recording a cessation of smoking in the late 1980's. The Tribunal does not accept that the veteran had any reason to give incorrect information to the medical practitioners. At the relevant times the veteran appeared to have been in reasonable health with no evidence of frailty or a confused state. Had the doctors doubted the veteran's account because there were indicative signs that he was still smoking, further enquires would most likely have been undertaken or notes made questioning the veteran's account. The medical notes would have been made contemporaneously with the veteran's account and are therefore likely to be more reliable than the memories of the witnesses who gave evidence at the appeal hearing. These witnesses were relatives of the applicant and willing to give evidence to support her claim. The Tribunal is not persuaded that the date when the veteran ceased smoking was as late as 1997/1998.
60. On balance the Tribunal prefers and accepts the evidence contained in the medical notes and concludes that the veteran ceased smoking in the late 1980's. The relevant SOP requires that smoking cease within five years of the clinical onset of diabetes. The evidence was that the veteran's diagnosis was made in August 1997.
Causal Link
61. The remaining issue is the requirement that the veteran's smoking habit be related to his period of service. Section 8 of the VE Act requires that the death of the veteran must "arise out of, or be attributable to, any eligible war service". Section 120B(3) requires that the material must raise a connection between the veteran's death and service. This subsection reads as follows:
"(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service".
62. It was submitted on behalf of the applicant that the Tribunal could be reasonably satisfied of the causal link between the veteran's smoking habit and his service. Mr Mackie submitted that the Tribunal can be satisfied that the circumstances of the veteran's service led to his smoking habit. The veteran had told his sister, Mrs Theunissen, that he was regularly given cigarettes by the RAAF. It was not disputed by the respondent that this was the case. Tendered in evidence was a copy of a record of the authorised monthly quotas for males of 8 ozs of tobacco or 240 cigarettes and the monthly special tobacco ration for ex-service personnel in the same amount.
63. The mere supply and availability of cigarettes to service personnel however is not of itself sufficient to establish the causal relationship between a veteran's smoking habit and his service. The Full Court of the Federal Court in Repatriation Commission v Tuite (1993) 39 FCR 540 dismissed an appeal against a decision of the Administrative Appeals Tribunal which had concluded that the veteran's smoking habit had arisen out of or was attributable to his eligible war service. However in that case evidence was given by the veteran himself as to how he was influenced to commence smoking by the circumstances of camp life and by the other servicemen with whom he was encamped.
The Full Court said at page 541:
"Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9(1)(b), but not under ss 9(1)(d) and 9(2), 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 the setting in which the event occurred. Denning J has said that the service "must be a cause of distinct from being part of the circumstances in or on which the cause operates". (See Marshall v Minister of Pensions [1948] KB 106 at 110; W v Minister of Pensions [1946] 2 All ER 501 at 502; Minister of Pension v Chennell [1947] KB 250 at 256).
64. The Federal Court in Repatriation Commission v Edwards (1993) FCA 434 said at paragraph 25:
"Considerable care must be exercised by the Tribunal when considering a case such as the present where the veteran commenced smoking during war-service, but was not in a theatre of war".
In that case there was evidence that the veteran had previously stated that he commenced smoking during his war-service because of boredom. The Full Court accepted that although the evidence before the Tribunal was rather meagre, this was not a case where there was no evidence upon which the Tribunal could reasonably conclude that there was the requisite link between war-service and the veteran's subsequent death.
65. In the present case there is no evidence of the circumstances of the veteran's camp or service life as he himself was not able to give that evidence. Mrs Dunbabin informed the Tribunal that the veteran rarely spoke about his service life and only really reported the good times. Whilst the Tribunal can be satisfied of the temporal connection between the veteran's smoking and his service in that he commenced smoking during service, there is no evidence upon which the Tribunal can be satisfied that his service life was a contributing cause and not merely the setting in which his smoking habit developed.
66. Mr John Dunbabin referred to an occasion when he was with his father in the sheep yards when a plane flew overhead. Mr Dunbabin reported that his father was agitated and he said to him:
""Don't you like planes?" And he said, "No". He said, "It reminds of the Japanese flying over doing bombing raids"".
67. Mr Dunbabin had not previously mentioned this incident nor had he referred to it in his evidence to the Veterans' Review Board. He said that the memory of the incident had only been "triggered off" that morning.
68. Following an adjournment of the hearing further evidence was submitted by the respondent which indicated that the veteran was not present in Darwin during the Japanese air raids. Further that there were no air raids in any of the places where the veteran had been stationed.
69. In his closing submissions Mr Mackie suggested that nevertheless the veteran may have been fearful of further bombing raids having known that they had occurred prior to his attachment to the Darwin base. Mr Mackie also suggested that the veteran's health issues during periods of his service may have increased his level of anxiety.
70. The Tribunal however has to be reasonably satisfied on the basis of the available evidence of a causal between the veteran's smoking habit and his service. Speculation or conjecture as to whether the circumstances of the veteran's service caused him fear, distress or anxiety is not evidence. The veteran did not serve in a war zone and was not engaged in operational service under which the standard of proof requirements are significantly different.
71. In the current case the Tribunal must be reasonably satisfied that is, on the balance of probabilities, that the veteran's smoking habit arose out of or was attributable to his period of service. In the absence of evidence the Tribunal cannot be so satisfied.
Conclusion
72. Whilst the Tribunal has accepted that cerebrovascular accident was a medical condition causative of the veteran's death, the circumstances of the veteran's service do not satisfy any of the factors in the relevant SoP.
73. The SoP factor relied upon with respect to the other medical condition causative of death, namely diabetes mellitus, related to the veteran's smoking habit. The relevant SoP refers to a consumption of either 20 tailor made cigarettes per day for a period of one calendar year or 7,300 cigarettes within five years of the clinical onset of diabetes mellitus. The Tribunal has determined that the clinical onset was in August 1997. The Tribunal accepts that the veteran consumed between one and two packets of cigarettes a day from around 1944 until the late 1980's which spans a period of over 40 years. This pattern of consumption well and truly exceeds the SoP requirement of 7,300 cigarettes.
74. For the reasons outlined above however, the Tribunal is not satisfied of the necessary connection between the veteran's death and the circumstances of his service. The Tribunal accordingly affirms the decision under review.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) and Dr R Walters RFD (Part-Time Member)
Signed: [R Hunt]
R Hunt (Administrative Assistant)Date/s of Hearing 27 May and 8 July 2009
Date of Decision 24 September 2009
Counsel for the Applicant Mr C Mackie
Solicitor for the Applicant Mackie Crompton
Counsel for the Respondent Ms J McCulloch
Solicitor for the Respondent Repatriation Commission
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