Perkins and Repatriation Commission - [2000] AATA 461

DECISION AND REASONS FOR DECISION [2000] AATA 461

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/585

VETERANS' appeals DIVISION )

Re THOMAS HENRY PERKINS
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr Michael Sassella, Senior Member

Date9 June 2000
PlaceSydney

Decision The decision under review is set aside.

..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – ischaemic heart disease – whether war-caused – standard of proof required.
Veterans' Entitlements Act 1986 ss 7(1)(c), 9(1)(b), 13(1)(b), 14(3), 120(4), 120B(3)
Repatriation Commission v Tuite (1993) 17 AAR 158
Hawkins v Repatriation Commission (1993) 17 AAR 290
Repatriation Commission v Keeley [2000] FCA 532

REASONS FOR DECISION

9 June 2000 Mr Michael Sassella, Senior Member

Mr Perkins wishes to receive payment of a Disability Pension under Part II of the Veterans' Entitlements Act 1986 ("the VEA"). He lodged a claim with the Department of Veterans' Affairs ("DVA") on 1 June 1998. He indicated his claim was based on three conditions: anxiety and depression, heart disease and heart bypass. On 4 September 1998 a delegate of the Repatriation Commission ("the Respondent") decided to reject Mr Perkins's claim. That decision refers to conditions of anxiety disorder due to a general medical condition and ischaemic heart disease. On 10 September 1998 Mr Perkins lodged an application for review with the Veterans' Review Board ("VRB"). On 24 March 1999 the VRB decided to affirm the primary decision. Mr Perkins was notified in writing of the VRB decision on 9 April 1999 and he lodged an application for review with the Administrative Appeals Tribunal on 21 April 1999.
At the commencement of the hearing Mr Perkins' representative, Ms Buss, advised that there was no longer any contest concerning anxiety disorder and that ischaemic heart disease had become the sole contentious condition. Ms Buss argued that the circumstances of Mr Perkins' service in the Army contributed to Mr Perkins developing a smoking habit which causally contributed to his ischaemic heart disease.
The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken in as evidence (TD1) along with the following exhibits:
Exhibit No Description Date
A1 A2 A3 A4 R1 R2 R3 MFI1 MFI2 Applicant's written statement Applicant's Statement of Facts and Contentions Report of Dr F H Burns Report of Dr F H Burns Report of Professor Mattick Respondent's Statement of Facts and Contentions Report of Professor Mattick Report of Dr D Lovell Report of Dr D Lovell 14 January 2000 29 November 1999 30 September 1999 27 October 1999 21 February 2000 6 April 2000 17 August 1999 14 September 1999 6 December 1999

Facts

Mr Perkins was born on 4 March 1926 in Sydney. He enlisted in the Army on 23 February 1944 at age 17. He was discharged only weeks later on 14 April 1944, apparently at his mother's instance, because he was underage. Mr Perkins had told the Army he was older than he actually was when he sought to enlist.
Mr Perkins left school at age 13. He worked part-time in a glassworks factory doing shift work for less than a year. He then worked as a post office messenger boy delivering telegrams, again for under a year. While his older colleagues in the post office smoked, Mr Perkins did not. He could not afford to do so. He lived with his mother, a single parent, and three brothers. Two brothers were in the Army. Mr Perkins' mother relied on the money Mr Perkins paid her regularly from his wages which were low.
Mr Perkins gave evidence that he had been a keen sportsman in his youth. He played rugby league as a schoolboy and was recruited to the third grade senior side for Newtown at age 16. He also played tennis and basketball. Some of the documentary evidence before the tribunal indicated that Mr Perkins was uninterested in smoking before he joined the Army partly because of his interest in sports, however he did not make this point explicitly in his oral evidence.
Mr Perkins explained in evidence that he was one of five youths who decided early in 1944 to join the army as a group. He was the only one of the five to follow through. Mr Perkins said he was keen to enlist partly in the hope that he could join his brother who was serving in New Guinea.
Mr Perkins was inducted into the Army on 23 February 1944. A medical examination in barracks in Cowra some time after that date disclosed that Mr Perkins suffered from scabies. On 1 March 1944 Mr Perkins was placed in an isolation tent about 50 metres away from his colleagues and stayed there for 17 days. His only visitor was a male nurse.
Mr Perkins' evidence was that he saw a large spider in the tent on the first day. He asked the nurse if it could be removed. The nurse said that the spider should be left where it was because it would help keep mosquitoes at bay. Mr Perkins could not sleep. He was afraid that the spider would move around the tent during the night and cause him harm. During the second day the nurse suggested that Mr Perkins could calm his nerves by smoking cigarettes. He says that he smoked one full packet on the second night in isolation, although he did not "draw back" when smoking at that stage.
There was some issue as to the intensity over time of Mr Perkins's smoking. On 14 July 1998, Mr Perkins completed a questionnaire relating to cigarette smoking. In response to the question, "Approximately how many cigarettes per day, or if there were 'roll your owns', how many ounces of tobacco per week did you regularly smoke at that time?", Mr Perkins answered, "2 ounces…" (T7, p43). In his answers in that questionnaire he traced the changes in his tobacco consumption. The quantity smoked rose to four ounces a week by 1947. By about 1957 he smoked around 20 cigarettes a day. By about 1962 he was smoking around 20 cigarettes a day and did so until he gave up smoking in 1975. In his oral evidence Mr Perkins altered this evidence somewhat. He clarified that he smoked 20 commercially marketed cigarettes on his first day of smoking, then about eight or 10 cigarettes a day until he was discharged from the Army. He then resorted to "roll your own" cigarettes in the quantities recorded in the questionnaire.
Mr Perkins was discharged from the Army on 14 April 1944. He returned to civilian employment, working on fruit barrows. He may have engaged in other work between 1944 and 1950 but it is unclear if that was so. In 1950 he became a waterside worker and he remained in that employment, albeit with varying duties, until 1987.
Mr Perkins said that he gave up his sporting activities soon after discharge because smoking had reduced his fitness. He first attempted to give up smoking at that time but without success.
Mr Perkins was again called up for Army service after he turned 18 years of age but was rejected on health grounds.
In 1961 he had a heart attack, aged 34. From then on he was again interested in ceasing to smoke. His attempts at stopping smoking were again unsuccessful, partly because of work pressures. In 1975 he had his first heart bypass operation and was advised by his surgeon to give up smoking. He was then able to do so. Mr Perkins had another bypass operation in 1995.
The Law
The standard of proof which Mr Perkins must meet is covered in subsection 120(4) of the VEA. The Tribunal must be able to decide "to its reasonable satisfaction" that Mr Perkins' ischaemic heart disease warrants payment of a Disability Pension under Part II of the VEA. This is taken to mean that the standard of proof is satisfaction on the balance of probabilities.
Paragraph 13(1)(b) requires that, to be eligible for a disability pension, Mr Perkins must have become incapacitated from a war-caused injury or a war-caused disease and must lodge a claim in accordance with subsection 14(3) of the VEA. Mr Perkins lodged a claim sufficient to satisfy section 14 of the VEA on 1 June 1998.
Section 9 of the VEA deals with war-caused injuries or diseases. Given the nature of Mr Perkins' army service he would seek to satisfy paragraph 9(1)(b) of the VEA. That is to say that he suffered an injury or contracted a disease that arose out of, or was attributable to, any "eligible war service" rendered by him.
Section 7 of the VEA deals with "eligible war service" and provides, as relevant:
"7 Eligible war Service
(1)Subject to subsection (2), for the purposes of this Act:
…
(c) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and
…"

Mr Perkins satisfies paragraph 7(1)(c) as his eligible war service was rendered for the period in which he rendered continuous full-time service.

Subsection 120B(3) of the VEA applies to Mr Perkins's claim, which provides that the Tribunal can reach a state of reasonable satisfaction about the war-caused nature of Mr Perkins' disease only if the material before it raises a connection between Mr Perkins' disease and some particular service rendered by him and there is in force a Statement of Principles of the Repatriation Medical Authority ("RMA") that upholds the contention that the disease is, on the balance of probabilities, connected with that service.
Issues
The issues for determination are, therefore:

Does Mr Perkins have ischaemic heart disease?
If Mr Perkins has ischaemic heart disease, is it a war-caused disease? In answering this question three subsidiary questions must be answered in the affirmative:
Did Mr Perkins engage in eligible war service?; and, if so
Is there a connection between Mr Perkins's disease and some particular service rendered by him?; and, if so
Is there in force a Statement of Principles that upholds the contention that Mr Perkins' disease is, on the balance of probabilities, connected with that service?

Analysis
Does Mr Perkins have ischaemic heart disease?

It is clear that the Applicant has ischaemic heart disease. Dr D Koutis, Mr Perkins' general practitioner, certified on 25 July 1998 that the Applicant experiences symptoms of ischaemic heart disease (T8, p48-49). The Respondent accepted that ischaemic heart disease was present in its reasons for decision dated 4 September 1998 (T10, p54). On 24 March 1999 the VRB accepted also that Mr Perkins suffered from this disease (T14, p67).
If Mr Perkins has ischaemic heart disease, is that a war-caused disease?
As noted above, this issue divides into three subordinate issues. The first of these is whether Mr Perkins engaged in eligible war service. Mr Perkins satisfies this requirement for the reasons set out above in paragraph 18.
The second subordinate issue is whether there is a connection between Mr Perkins's disease and some particular service rendered by him. The Applicant argues that the circumstances of his war service causally contributed to his smoking habit which, in turn, was a cause of his ischaemic heart disease.
The evidence relied on by the Applicant is as follows:

The Applicant began smoking only in 1944 when in the army camp at Cowra; and
He began smoking at that time to calm his nerves when in fear of a large spider in close proximity; and
Dr F H Burns, a physician, saw the Applicant at the request of his representatives. In his report dated 30 September 1999, Dr Burns accepts that Mr Perkins started to smoke regularly during his brief period in the army. He states that Mr Perkins later developed nicotine addiction associated with continued smoking and an increase in his smoking. Dr Burns associates the development of addiction to nicotine with Mr Perkins' introduction to smoking during his "admittedly brief" period of army service. In a later report of 27 October 1999, Dr Burns states that Mr Perkins would have become dependent on tobacco some time in the three years after he left the army. The doctor further states that although Mr Perkins may not have met the criteria for nicotine dependence on service, he did commence smoking on service, which was the beginning of the chain of events which resulted in dependence.

Ms Buss asserted that the evidence that Mr Perkins had a smoking habit, if not a nicotine dependence, by the time he left the army was sufficient for the Tribunal to decide to its reasonable satisfaction that Mr Perkins' ischaemic heart disease was war-caused.
Mr Godwin raised credibility issues as regards the scenario put by Mr Perkins relating to the onset of his smoking. Amongst the matters referred to were:

Mr Perkins's memory for detail in giving his oral evidence was often inaccurate or ambiguous; and
Mr Perkins' evidence as to the size of the spider must have been exaggerated, although the Respondent was prepared to accept that there was a spider in the tent. Mr Godwin also suggested that if Mr Perkins had been concerned about the risk to his safety posed by the spider he could simply have left the tent.

The Respondent commissioned reports from Associate Professor Mattick of the National Drug and Alcohol Research Centre. In a report dated 17 August 1999 Professor Mattick says it appears that Mr Perkins claims that he commenced smoking on service and that he smoked 12 to 15 cigarettes a day for approximately two weeks whilst in isolation. He then claimed to have smoked approximately nine cigarettes a day for the remainder of his time in the army. Professor Mattick notes that the Applicant did not crave for tobacco until at least two months after discharge. He noted:
"…
…there was…no evidence that he smoked more than he intended to, that there was any persistent desire or attempts to cut down smoking, that he smoked in a way which consumed large amounts of time, that he gave up important activities because of smoking or that he smoked in spite of any persistent or recurrent physical or psychological problem…
…" (Exhibit R3)

On this basis Professor Mattick concluded that Mr Perkins was not nicotine dependent in the army and that he was not psychologically reliant on nicotine although he may have been somewhat tolerant of the effects of nicotine while in service.

Professor Mattick provided a second report on 21 February 2000 in which he agrees largely with Dr Burns but confirms that there is insufficient evidence in his view for the Tribunal to reach reasonable satisfaction that Mr Perkins was dependent on nicotine by the time he left army service.
Is there in force a Statement of Principles that upholds the contention that Mr Perkins' disease is, on the balance of probabilities, connected with that service?
Helpful as the above expert evidence might be, subsection 120B(4) of the VEA requires a consideration of the evidence in the light of any Statement of Principles related to ischaemic heart disease promulgated by the RMA.
A number of statements relating to ischaemic heart disease have been issued by the RMA. Instrument 39 of1999 is the most recent instrument and it stands alone, having revoked those that have preceded it. It was issued on 27 April 1999. However, the Applicant's claim in this matter was lodged on 1 June 1998. Instrument 39 of 1999, having been issued after the date of the Applicant's claim, may not be the appropriate instrument to apply in this case.
The Federal Court of Australia recently considered this issue in Repatriation Commission v Keeley [2000] FCA 532. In their reasons for judgment, at paragraph 46, Lee and Cooper JJ held that, in the absence of a contrary intention clearly disclosed, a person whose claim has been determined by the Repatriation Commission under the VEA has an accrued right to have his or her claim assessed in any review in accordance with the Statement of Principles in force at the date of the determination of the claim. Lee and Cooper JJ cite subsection 120A(2) of the VEA to hold that a statement issued after a claim is lodged but before the claim is determined will be applicable to any decision made, including a review decision, about the claim. Keeley's case concerned proof on the basis of the reasonable hypothesis test in subsection 120A(2) of the VEA. The instant appeal involves proof to reasonable satisfaction. Subsection 120B(2) of the VEA is, mutatis mutandis, in the same terms as subsection 120A(2) so a similar interpretation should be applied.
Before leaving Keeley's case, however, further comments by the learned judges should be mentioned. Paragraph 46 of their reasons for judgment appears to contemplate that where a later Statement of Principles that is more beneficial for an applicant than the statement in force at the date of the original determination then the applicant can have the advantage of the more beneficial later statement.
In this case the primary determination was made on 4 September 1998. The Statement of Principles in force on that date was instrument 141 of 1996 as amended by instrument 78 of 1997 and instrument 38 of 1998. Instrument 141, in relation to smoking and ischaemic heart disease, included the following principles:
"…
Basis for determining the factors
3.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of the person's relevant service are:
…
(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 10 years of cessation; or
…"
This instrument therefore requires that the following facts be ascertained:

The date of clinical onset of ischaemic heart disease; and
The date when Mr Perkins ceased smoking; and
Possibly the number of cigarettes smoked by Mr Perkins each day in the three years before the onset of ischaemic heart disease.

Mr Perkins's ischaemic heart disease had developed by 1961 (Exhibit A3). There is other evidence that Mr Perkins suffered a heart attack of some type in 1961.
The evidence is that Mr Perkins ceased smoking only in 1975 when he had his first heart bypass operation and that, save for short periods when he attempted to give up smoking, he was smoking between three quarters and one full pack of cigarettes a day from 1944 until he stopped in 1975.
To satisfy the Statement of Principles Mr Perkins must have been smoking at least five cigarettes a day between 1958 and 1961, 1961 being the earliest date on the evidence that it can confidently be said that Mr Perkins had contracted ischaemic heart disease. This requirement has been satisfied on the balance of probabilities. It can therefore be accepted that there is an appropriate connection between Mr Perkins' smoking and his ischaemic heart disease. There is nothing of relevance in the two instruments that amended Statement of Principles 141 of 1996 (see paragraph 33 above) and there is no need to consider whether a subsequently issued Statement of Principles may be helpful to Mr Perkins (see paragraph 32 above).
The relevant Statement of Principles will thus not stand in Mr Perkins' way if there is found a sufficient causal connection between his army service and his taking up smoking.

It was common ground that by the time Mr Perkins left the army he had developed a habit of smoking, if not a dependency. Ms Buss cited several decided cases to support her proposition that the formation of a smoking habit rather than a dependency is all that is necessary. She also relied on the drafting in the Statement of Principles which does not mention the need for a dependency to have developed. It refers only to the timing, frequency and amount of smoking.
Ms Buss cited a number of decisions to support two propositions:
i)it is sufficient for Mr Perkins to succeed in this case if he can show that his army service contributed in a material way to the development and maintenance of his smoking habit; and
ii)it is only a habit, and not a dependence that needs to be shown.

One of the more cogent amongst the cases cited was Repatriation Commission v Tuite (1993) 17 AAR 158 in which the full Federal Court reinforced that it is insufficient for the VEA that a veteran merely develops a smoking habit while in the forces. The circumstances of the service in the forces must provide an operative cause in taking up smoking. Burchett and Einfeld JJ (at 163) say:

"…
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 smoke'. It accepted his evidence that he had not smoked before, 'and that it was the circumstances whilst he was in 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 Court approved these comments by the tribunal.

In another Federal Court case cited by Ms Buss, Hawkins v Repatriation Commission (1993) 17 AAR 290 Davies J (at 293) characterised the issue in a smoking case as follows:
"…
…It was not in issue that, for the purpose of the standard of proof established by s 120(1) and (3) of the Act, Mr Hawkins' smoking habit was a cause of his disease. Thus, the issue was whether Mr Hawkins' eligible service contributed in a material way to the development and maintenance of his smoking habit. As smoking is addictive, the circumstances in which the habit developed were important…
…"
In this case it appears that Mr Perkins had developed a habit rather than a dependence on smoking by the time he left the army provided he was induced to commence smoking by something in the circumstances whilst he was in camp. Mr Perkins says that it was the presence of the spider, the army's official reaction to his request for its removal, and an army representative's encouragement to him to take up smoking that together induced him to take up smoking and form a smoking habit within days and weeks. Mr Godwin conceded that Mr Perkins had developed his smoking habit by the date of discharge. His strongest argument was that Mr Perkins' story should not be believed. Mr Godwin accepted that a spider had been in the tent at the relevant time but he did not accept that it was as large as Mr Perkins said nor that Mr Perkins was as anxious about it as he said he was.
While the matter is not free from doubt, and despite Mr Godwin's able arguments to the contrary, the Tribunal finds that Mr Perkins' account of his time in the army and the incidents that occurred during that period is credible. While the spider may not have been as large as Mr Perkins says it was the Tribunal accepts that Mr Perkins believes it was a very large spider. It is conceivable too that in the lighting conditions in the tent in 1944 the shadows may have exaggerated the size and impact of the spider. The Tribunal saw Mr Perkins as a witness trying to do his best to present his account as truthfully as possible many years after events had occurred. He was less lucid than the best witnesses but there was nothing in his presentation to lead the Tribunal to consider on the balance of probabilities that he was untruthful.
The process of reasoning in this case is therefore that Mr Perkins has a condition of ischaemic heart disease; that disease was caused at least materially by smoking (the Statement of Principles supports this); a smoking habit commenced while the Applicant was serving in the army; and the smoking commenced because of something in the circumstances whilst he was in camp.
Decision
In accordance with section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside. The Tribunal allows the Applicant's claim for ischaemic heart disease with effect from 1 March 1998 and remits the matter to the Respondent to assess the appropriate rate of pension.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  10 April 2000
Date of Decision  9 June 2000
Representative for the Applicant              Ms J Buss
Representative for the Respondent        Mr P Godwin