PENELOPE ANN WILLOUGHBY and REPATRIATION COMMISSION
[2012] AATA 97
•17 February 2012
[2012] AATA 97
Division VETERANS' APPEALS DIVISION File Number(s)
2011/0085
Re
PENELOPE ANN WILLOUGHBY
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Lt Col R Ormston (Rtd) (Member)Date 17 February 2012 Place Adelaide The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Willoughby’s death was defence-caused and therefore Mrs Willoughby is eligible to be paid a widow’s pension, with a date of effect of 24 September 2009.
..............................[sgd]..........................................
Senior Member K Bean
CATCHWORDS
VETERANS’ AFFAIRS – Widow’s pension – Veteran died from lung cancer – Material suggests veteran took up smoking soon after joining the RAAF and partly as a result of the stress of adjusting to service life – Connection between service and smoking raised – Contention of a contribution from service to veteran’s death upheld by the SoP – Veteran’s death defence-caused and eligibility for pension established – Decision under review set aside.
LEGISLATION
Veterans’ Entitlements Act 1986, 70(1) and (5), 120(4), 120B, 120B(1) and (3)(a), 196B(3) and (14)
CASES
Collins v Repatriation Commission (2009) 177 FCR 280
Repatriation Commission v Tuite (1993) 29 ALD 609
Repatriation Commission v Law (1980) 31 ALR 140
Gilkinson v Repatriation Commission [2011] FCAFC 133
Military Rehabilitation and Compensation Commission v Wall (2005) FCAFC 127 (2005); 88 ALD 1REASONS FOR DECISION
Senior Member K Bean
Lt Col R Ormston (Rtd) (Member)17 February 2012
INTRODUCTION
The applicant, Mrs Willoughby, was married to Mr Michael Willoughby from May 1979 until his untimely death in September 2009 as a result of lung cancer when he was only fifty-three years old. Mr Willoughby served in the Royal Australian Air Force (RAAF) for six years between October 1974 and October 1980, and this application relates to Mrs Willoughby’s claim for a widow’s pension on the basis that Mr Willoughby’s death was related to his service. In particular, Mrs Willoughby seeks to establish that Mr Willoughby’s death was a consequence of him smoking and that he took up and became addicted to smoking as a result of his service.
Her claim was lodged on 20 November 2009 but was not accepted by the Repatriation Commission or the Veterans’ Review Board (VRB). On 10 January 2011, she lodged an application with this Tribunal seeking review of the decision of the Repatriation Commission, as affirmed by the VRB, giving rise to these proceedings.
Before addressing the issues which arise in this matter, we propose to first outline the applicable legislative scheme.
LEGISLATIVE SCHEME
Section 70(1) of the Veterans’ Entitlements Act 1986 (the VE Act) provides relevantly that where the death of a veteran was "defence-caused", the Commonwealth is liable to pay a pension by way of compensation to the dependants of the veteran in accordance with the terms of the VE Act.
Section 70(5) provides relevantly that for the purposes of the VE Act, the death of a veteran shall be taken to have been "defence-caused" if :
(a) the death………..arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
Section 120(4) provides in effect that the Commission shall decide a matter arising under the VE Act to its reasonable satisfaction. This section is, however, qualified by s 120B. Section 120B(1) provides that that section applies relevantly to a claim made under Part IV of the VE Act that relates to defence service rendered by a veteran. Section 120B(3) provides relevantly that in applying s 120(4) to determine a claim, the Commission (which includes this Tribunal when it reviews a decision of the Commission) is to be reasonably satisfied that the death of a person was defence-caused only if:
"(a)the material before the Commission raises a connection between the ... 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 ... death of the person is, on the balance of probabilities, connected with that service."
Section 196B(3) provides relevantly in effect that if the Repatriation Medical Authority (RMA) (being a body established under s 196A) is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of death can be related to defence service rendered by veterans, the RMA must determine a Statement of Principles (SoP) in respect of that kind of death setting out the factors that must exist, and which of those factors must be related to service rendered by a person, before it can be said that, on the balance of probabilities, a death of that kind is connected with the circumstances of that service. There is no statutory definition of the concept of a death being "connected with" service, but the reference in s 196B(3) to a "factor related to service" is expounded in s 196B(14). This provides relevantly in effect that a factor causing, or contributing to the death of a person is "related to service" rendered by a person if:
·it resulted from an occurrence that happened while the person was rendering that service;
·it arose out of or was attributable to that service;
·it was contributed to in a material degree by, or was aggravated by, that service; or
·in the case of a factor causing, or contributing, to the death of a person, it was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for the rendering of that service by the person, or but for changes in his or her environment consequent upon having rendered that service.
Relevantly for the purposes of this matter, the RMA has made a SoP in relation to Malignant Neoplasm of the Lung, being Instrument No. 18 of 2006. That SoP relevantly provides as follows:
“Kind of injury, disease or death
3. ....
(b) For the purposes of this Statement of Principles, “malignant neoplasm of the lung” means a primary malignant neoplasm arising from the cells of the trachea, bronchus, or lung. This definition excludes soft tissue sarcoma, non-Hodgkin’s lymphoma, Hodgkin’s lymphoma, carcinoid tumour and malignant neoplasm of the pleura.
...
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, malignant neoplasm of the lung or death from malignant neoplasm of the lung is connected with the circumstances of a person’s relevant service is:
(a) for each of the following types of malignant neoplasm of the lung:
(i) squamous cell carcinoma;
(ii) small cell carcinoma;
(iii) malignant neoplasm of undetermined histology;
(iv) large cell carcinoma; or
(v) carcinosarcoma
smoking at least one half of a pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the lung, where smoking commenced at least ten years before the clinical onset of malignant neoplasm of the lung;
...
Other definitions
9. For the purposes of this Statement of Principles:
...
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 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; ...”
THE ISSUES
It follows that the principal issues before us are:
(a)what was the cause of Mr Willoughby’s death; and
(b)whether Mr Willoughby’s death was defence-caused within the meaning of the VE Act.
Before proceeding to address those issues, we should record the fact that there was no issue before us and we accept that Mr Willoughby’s service was defence service rather than operational service, with the consequence that the standard of proof to be applied in relation to Mrs Willoughby’s claim is the balance of probabilities. It is in that context therefore that we propose to address the issues outlined above, namely the cause of Mr Willoughby’s death and whether his death was defence-caused.
WHAT WAS THE CAUSE OF MR WILLOUGHBY’S DEATH?
In claims for pension arising from the death of a veteran, it is necessary to determine as a preliminary question, what was the medical cause of death.[1]
[1] Collins v Repatriation Commission (2009) 177 FCR 280 at [41] and [42].
Mr Willoughby’s death certificate stated that the cause of his death was “STAGE IV NON SMALL CELL LUNG CARCINOMA (MONTHS)”.[2] On the basis of this certificate, the respondent conceded and we also accept that the medical cause of Mr Willoughby’s death was cancer or “malignant neoplasm” of the lung, as this is defined in Instrument No. 18 of 2006, which we have referred to above.
[2] T8/29.
WAS MR WILLOUGHBY’S DEATH DEFENCE-CAUSED?
As we have noted above, under s 120B(3)(a) of the VE Act, we are to be reasonably satisfied that the death of the deceased veteran was defence-caused only if the material before us raises a connection between his death and his defence service, and the contention of a connection is upheld by any relevant SoP. We accordingly propose to consider each of these issues in turn, namely whether a connection is raised on the material and, if so, whether that connection is upheld by the SoP.
Does the material raise a connection between Mr Willoughby’s service and his death?
The main evidence relied upon by Mrs Willoughby in support of a connection between Mr Willoughby’s service and his death was the evidence of Mr Willoughby’s mother, Mrs Phyllis Forward, as to the circumstances surrounding Mr Willoughby taking up smoking. Mrs Forward provided a detailed affidavit[3] and also gave oral evidence at the hearing.
[3] Exhibit 2.
In her affidavit and oral evidence, Mrs Forward explained that the household in which Mr Willoughby had grown up was a non-smoking household. She stated “None of us smoked and both my husband and I were very against smoking for health reasons”.[4] She also stated that Mr Willoughby lived with her, her husband and his sisters until he joined the RAAF when he was 18 years old. She said that she knew her son to be a non-smoker prior to him joining the RAAF but said that he took up smoking not long after he joined the RAAF. Mrs Forward also stated that her son was a gentle and sensitive young man and also that he was very anxious about sitting exams. She said this manifested when he undertook his school leaving exams when he became stressed leading up to and during his exams and found it hard to attend the examinations.
[4] At [7].
Mrs Forward went on to explain that once her son was accepted into the RAAF, he opted to undertake an electronics apprenticeship and it was her impression that he thought this would be similar to a practical civilian apprenticeship. However once he had joined up, he discovered that he would be required to undertake written exams, and he seemed stressed about this.
She also said that once her son joined up he started living at the RAAF Base at Edinburgh. However after he had been in the RAAF for a couple of months, he started to come home more frequently. She said that she understood her son had exams pending at that time and he also told her that he was having difficulty adjusting to living in an all-male environment. She said she had the impression this was particularly difficult for him because it was so different from his relatively sheltered life at home. She said that he said to her words to the effect “It’s hard being with a mob of lads, it’s so noisy and chaotic”.[5] Mrs Forward said that when her son came home during this period he would sometimes stay overnight and “approximately 3 months” after he joined up he was home “most nights”. As the family home was at Hawthorn, this meant an hour and a half trip each way and required him to leave home at 5.30am in order to be back at the Base for parade at 7.00am.
[5] At [17].
Mrs Forward also said that at around the time her son started coming home more often she noticed that his room smelt of cigarette smoke. She said that after her husband had spoken to their son about this he said to her “Michael’s started smoking. I asked him about it and he told me he started because all the others do and he finds it a comfort when he’s stressed about exams”[6]. She said that she later spoke to her son about his smoking and he said “I’m sorry Mum but I find it helps me to cope”. He also said words to the effect of “I’m finding it hard adjusting to life on the Base and am stressed by the exams”.[7] Mrs Forward also added that she formed the impression that her son saw smoking as “one way he could try and fit in with the rest of them”.[8]
[6] At [17].
[7] At [18].
[8] At [19].
Mrs Forward said that she thought her son had moved to Melbourne about 12 months after he joined the RAAF when he was posted to Laverton in Victoria. However, when it was pointed out to her that his statement of service indicated he was at Edinburgh only from 15 October 1974 until 3 January 1975 when he was posted to Laverton, she conceded that her recollection as to the timeframe must have been incorrect.[9]
[9] T7/28.
On the basis of Mrs Forward’s evidence, Mr Keady, who appeared as counsel for Mrs Willoughby, contended that the material raised a connection between Mr Willoughby’s service and his smoking habit, insofar as he took up and continued smoking for reasons related to his service. As to the level and duration of Mr Willoughby’s smoking, he relied upon a statement provided by Mrs Willoughby herself in which she said that she met Mr Willoughby in 1976 whilst he was still in the RAAF[10]. She said that at that time he was a regular smoker and that he subsequently remained so for many years, smoking about a packet of cigarettes a day[11]. She said that he gave up smoking for about 5 years during the 1980s, but took it up again until he finally gave it up altogether in the “early 1990s”.[12]
[10] Exhibit 3, [2].
[11] At [8].
[12] At [9].
As to the question of a connection between Mr Willoughby’s smoking and the development of his lung cancer, Mrs Willoughby did not put forward any medical evidence in support of that connection. However, it was implicit in her case that there was such a connection, and Mr Crowe, who appeared as advocate for the respondent, did not dispute the existence of that connection, which we note is also consistent with the terms of the SoP. In these circumstances, we accept that the material raises a connection between Mr Willoughby’s smoking and his lung cancer.
Whilst Mr Crowe did not dispute a connection between Mr Willoughby’s smoking and his lung cancer however, he contended that the material, including Mrs Forward’s evidence, did not raise a connection between Mr Willoughby’s service and his death. In particular, he submitted that the material did not support a conclusion that Mr Willoughby’s service contributed to him taking up smoking.
Mr Crowe directed our attention to observations of the Full Court in relation to a decision of the Tribunal in Repatriation Commission v Tuite (1993) 29 ALD 609 at 614 as follows:
The tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The tribunal noted that it was not sufficient simply to find a temporal connection; what was required was “something within the applicant’s military service which has caused him to start smoking”. It accepted his evidence that he had not smoked before, “and that it was the circumstances whilst he was in the camp that caused him to start to smoke”. The tribunal added: “Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military.” The tribunal pointed out that the respondent “was in a milieu totally different to that which he had experienced before his call-up”.
By way of distinction, Mr Crowe submitted that in the circumstances of this matter, the RAAF was no more than the environment in which Mr Willoughby had started to smoke, and did not contribute in any meaningful way to him commencing smoking. Mr Crowe contended that the actual cause of Mr Willoughby commencing to smoke was his decision to leave home and start work and he would have been likely to commence smoking in response to the pressures associated with that decision, whatever the particular work environment he entered had been. He accepted that Mr Willoughby had grown up in a relatively protected environment and submitted that the evidence suggested it was the loss of the comfort of that environment rather than any aspect of service life which had caused or contributed to him commencing smoking. Similarly, as to whether the pressure of exams had contributed to Mr Willoughby smoking, Mr Crowe submitted that he would have been subjected to similar pressures if he had pursued an apprenticeship outside the services and therefore service could not be blamed for any stress suffered by Mr Willoughby as a consequence of having to sit exams. Accordingly, he submitted that the milieu Mr Willoughby experienced on joining up was relevantly no different than if he had not joined up.
However, in our view, these submissions overlook another aspect of the Full Court’s decision in Tuite, being the following statement of Davies J at 612:
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
With respect to his Honour, we understand that this remains a correct statement of the law.[13]
[13] A similar approach is taken in the context of military compensation; – see Military Rehabilitation and Compensation Commission v Wall (2005) FCAFC 127; (2005) 88 ALD 1.
Accordingly, we consider the correct question for us to be whether Mr Willoughby’s service contributed to him taking up smoking. If it did, then it is not relevant for our purposes that he may have taken up smoking as a consequence of the pressures of adult life, even if he had not entered the RAAF.
In considering, in that context, whether Mr Willoughby’s service did contribute to his smoking, it is relevant in our view that, on the material before us, Mr Willoughby commenced smoking between 15 October 1974 when he enlisted and 3 January 1975 when he was posted to Laverton, that is a period of two and a half months. There is accordingly a strong temporal connection between Mr Willoughby taking up smoking and commencing his service. It is also relevant in our view that Mr Willoughby entered the RAAF straight from home and at the relatively young age of 18. Having regard to the evidence of his mother, we are also satisfied that he found the adjustment to service life difficult and stressful, and suffered a degree of what could be described as ‘culture shock’ as a result of the stark differences between his home life and life in an all-male military environment.
We also accept Mrs Forward’s evidence that in speaking with her Mr Willoughby stated that he found smoking helped him cope with the stress of service life and the exams he was required to undertake as part of his service. We should add that in relation to Mrs Forward’s evidence as to the exams undertaken by her son, we have concluded that it is unlikely Mr Willoughby underwent electronics training or exams associated with that training prior to being posted to the Air and Ground Radio School at Laverton in January 1975. However, as advised to the parties during the hearing, the Tribunal has had regard to its own knowledge in concluding that he is likely to have had to undertake some tests as part of his recruit training at Edinburgh, and we accept that he was stressed about undertaking those tests.
In our view, the fact that Mr Willoughby found adjusting to service life and living on the Base difficult is underlined by the fact that during the latter part of his recruit training he regularly travelled one and a half hours each way in order to spend the night at his family home rather than on the Base. Based on Mrs Forward's evidence, including her evidence as to her husband’s account of a conversation with their son, we also accept that one of the reasons for Mr Willoughby’s smoking was that “all the others” were smoking, and he wanted to “fit in”.
We are accordingly satisfied that the aspects of service life to which we have referred, including the fact that the Edinburgh Base was an all-male environment very different from that which Mr Willoughby was used to, the fact that there was an expectation for him to live on the Base (albeit that he was permitted to be absent when not on duty), the fact that he was required to undergo testing as part of his recruit training and that many of the other servicemen at Edinburgh smoked, all contributed to Mr Willoughby commencing smoking within a short time of joining the RAAF.
We accept that Mr Willoughby may have found the adjustment to service life more stressful and difficult than a young man of a different personality and/or from a different background may have found it. However, the fact that Mr Willoughby had a particular susceptibility to being stressed by aspects of his service life and the adjustments required, does not detract from our conclusion that he did suffer stress as a result of the aspects and circumstances of his service we have referred to, and that that stress, together with a desire to fit in, contributed to him taking up smoking.
We are accordingly satisfied that a connection has been raised on the material between Mr Willoughby’s death and his service, as his service contributed to him taking up smoking and, on the material before us, once he had taken it up he continued to smoke approximately a packet of cigarettes per day until the 1980s. As we have indicated above, we are also satisfied that the material raises a connection between Mr Willoughby’s smoking and his death.
Is the contention upheld by the SoP?
The next question which arises therefore is whether the contention of a connection between Mr Willoughby’s death and his service, via his smoking, is upheld by the applicable SoP, Instrument No. 18 of 2006. Having regard to the terms of the relevant SoP, it will uphold Mrs Willoughby’s contention if it is established that Mr Willoughby was smoking at least one half a pack year of cigarettes before the clinical onset of malignant neoplasm of the lung, where smoking commenced at least 10 years before the clinical onset of malignant neoplasm of the lung.
Mr Crowe did not contend that Mr Willoughby did not smoke the requisite amount during the relevant period and we are satisfied that he did smoke at least one half a pack year of cigarettes before the onset of his lung cancer, and that he started smoking at least 10 years before the clinical onset of his lung cancer, which, as we understand the evidence, was diagnosed a matter of months before his death in 2009.
That only leaves the question of whether Mr Willoughby’s smoking was related to his service and in this context, Mr Willoughby’s service will be “related to” his service if, relevantly, it “arose out of, or was attributable to, that service” or “it was contributed to in a material degree by, or was aggravated by, that service”.[14]
[14] s 196B(14).
For the reasons we have given above, notwithstanding Mr Crowe’s submission to the contrary, we are satisfied that Mr Willoughby’s service and the circumstances of that service, including the environment at Edinburgh, the fact that other servicemen were smoking, the expectation that Mr Willoughby live on the Base and the requirement that he undergo testing as part of his recruit training, all contributed to Mr Willoughby taking up smoking. In this regard we note the meaning of “arose out of or was attributable to” was recently considered by the Full Court of the Federal Court in Gilkinson v Repatriation Commission [2011] FCAFC 133, in which the Court expressly rejected the proposition that s 196B(14)(b) “requires the appellant’s operational service to be the dominant or effective cause of the factor causing or contributing to the appellant’s disease”.[15] The Court also referred to the earlier decision of Repatriation Commission v Law (1980) 31 ALR 140, noting that as to the expression “is attributable to” their Honours said the cause need not be the sole or dominant cause and that it was sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributory cause.[16]
[15] At [36].
[16] At [38].
As we are satisfied that Mr Willoughby’s service including the circumstances of that service contributed to him taking up smoking, it follows that we consider that his smoking to the requisite extent was related to his service. It therefore also follows that we consider Mrs Willoughby’s contention as to a connection between Mr Willoughby’s service and his death is upheld by the SoP.
We acknowledge that if the circumstances of Mr Willoughby’s service had simply been the “setting” in which Mr Willoughby decided to take up smoking, then the requisite connection would not have been established. However, in this matter, as in the matter of Tuite, we are satisfied that there was a causal as well as temporal relationship between Mr Willoughby’s service and his decision to take up smoking and hence the necessary relationship between service and smoking is established.
CONCLUSION
We have concluded that the cause of Mr Willoughby’s death was “malignant neoplasm” or cancer of the lung and that one of the major contributing factors to that disease was the fact that Mr Willoughby smoked during and after his service. We have also concluded that the material raises a connection between Mr Willoughby’s service and his smoking, and further that the contention of a connection between his death and his service is upheld by the applicable SoP, Instrument No. 18 of 2006. It follows that Mr Willoughby’s death was “defence-caused” within the meaning of the VE Act and Mrs Willoughby is accordingly entitled to a widow’s pension pursuant to s 70 of the VE Act. We note that the earliest date from which Mrs Willoughby can be paid a pension is 24 September 2009, the day after Mr Willoughby passed away.
DECISION
The decision under review is set aside and in substitution for that decision the Tribunal decides that Mr Willoughby’s death was defence-caused and therefore Mrs Willoughby is eligible to be paid a widow’s pension, with a date of effect of 24 September 2009.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean .
.......................[sgd].................................................
Administrative Assistant: J Scobie
Dated 17 February 2012
Date(s) of hearing 7 December 2012 Counsel for the Applicant Mr Paul Keady Advocate for the Applicant Mr Noel Wait Solicitors for the Applicant The Legacy Club of Adelaide Inc. Advocate for the Respondent Mr Adrian Crowe Solicitors for the Respondent Veterans' Affairs Advocacy Branch
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