Phyllis Booth and Repatriation Commission
[2012] AATA 871
•11 December 2012
[2012] AATA 871
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1257
Re
Phyllis Booth
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr W Isles, MemberDate 11 December 2012 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Presiding Member
CATCHWORDS
VETERANS ENTITLEMENTS – claim for war widow’s pension – operational service – whether veteran’s service led to smoking increase – no reasonable hypothesis raised – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 120, 120A
CASES
Byrnes v Repatriation Commission (1993) 177 CLR 564
Martin v Repatriation Commission [2012] AATA 744
Repatriation Commission v Deledio (1998) 83 FCR 82Repatriation Commission v Stares (1996) 66 FCR 594
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles No 89 of 2007
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr W Isles, Member11 December 2012
Phyllis Booth is the widow of the late Graham Booth, a veteran who had operational service in Vietnam from 13 March 1968 to 5 February 1969. He served in the Royal Australian Air Force from 14 August 1957 to 7 November 1975.
Mr Booth died on 26 July 2010. There is no dispute that the kind of death was ischaemic heart disease.
Mrs Booth hypothesised that Mr Booth’s ischaemic heart disease was caused by cigarette smoking. She relied on Statement of Principles 89 of 2007, concerning ischaemic heart disease. In particular, Mrs Booth relied on factor 6(h) which applies when a person has not ceased smoking prior to the clinical onset of ischaemic heart disease and:
(a)smoked an average of at least five cigarettes per day for at least the one year before the clinical onset of ischaemic heart disease; or
(b)smoked at least one pack year before the clinical onset of ischaemic heart disease.
There was considerable inconsistency in the material before us as to whether Mr Booth ever smoked at all. He had completed a claim form in which he denied ever smoking and had also described himself as a non-smoker to his treating medical practitioners. The Repatriation Commission also contended that the material does not point to a connection between Mr Booth’s smoking and his operational service.
We must consider whether Mr Booth’s ischaemic heart disease was caused by his operational service. In doing so we must apply the standard of reasonable hypothesis, in this case, by identifying the applicable Statement of Principles (SoP), in this case SoP No. 89 of 2007 concerning ischaemic heart disease. We must consider whether any hypothesis raised by the material before us conforms with one of the factors in the SoP and if so, whether that factor was related to his operational service. If so, then we must consider whether we are satisfied, beyond reasonable doubt, that the condition is not war-caused.
In so doing we will follow the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
The issues for us to consider are whether the material before us points to:
(i)Mr Booth smoking;
(ii)If so, an increase in Mr Booth’s smoking was related to his operational service; and
(iii)If so, is a reasonable hypothesis raised?
DOES THE MATERIAL POINT TO MR BOOTH SMOKING?
Mrs Booth said her husband smoked when she met him in 1952, but generally not in her company and never in the house. She said he enjoyed relaxing with a cigarette. She said she knew he smoked because she would take tea and biscuits to him in the garage where he smoked, she could smell it on him and she saw the nicotine stains on his fingers. She said he had had a cough ever since she had known him. She said he ceased smoking when he had a heart attack in 1990.
Michelle Nagashima, Mrs Booth’s daughter, said her father always told her she should not smoke. She said she never saw him smoke but she did see the packets of cigarettes in the garage and he smelled of cigarettes until he got sick. She said his cough got worse and worse.
Mrs Booth’s younger daughter, Joanne Booth, told the Veterans Review Board that she never saw her father smoke, but he smelled of it and he had a bad cough.
Inconsistently with this evidence, Mr Booth declared on a claim form for pension that he had never smoked. He also told his general practitioner and his treating specialist that he had never smoked.
Mrs Booth said her husband had told her he had been advised by a man at the RSL Club that he should not tell “Veterans’ Affairs” that he smoked because it would show he was not taking care of himself. She suspected Mr Booth, who was hard of hearing, might have got the wrong end of things, but she recalled him sticking with that thereafter. She said she had to back him up and so on a form she lodged in January 2011 she also said that Mr Booth had never smoked.
We consider that, although there is inconsistent material including Mr Booth’s and Mrs Booth’s own representation to the Repatriation Commission and to medical practitioners, there is material that points to Mr Booth smoking since at least 1952 and until he had a heart attack in 1990.
DOES THE MATERIAL POINT TO AN INCREASE IN SMOKING RELATED TO OPERATIONAL SERVICE?
Mrs Booth said Mr Booth’s cough, which he had had ever since she had known him, got worse over time. She also said that the amount of time he spent in the garage increased over time.
She also said that when Mr Booth came back from Vietnam he was very depressed and his personality had changed. She said he was stressed and did not want to talk to her. She said he spent more time in the garage and he “couldn’t stand the quietness of the house”.
She said Mr Booth eventually told her about Vietnam – that he could not sleep because they were fired at every night and that “the Vietnamese were great robbers, stealing his underwear. She said he was happy in the garage where he didn’t have to talk to her or to anyone else.
Mrs Booth said she has no idea how much Mr Booth smoked and the details she supplied on 20 April 2011 on the Application for Review form (at least 20 cigarettes per day) were merely a guess, but she thinks his smoking increased because his bronchial condition started to get worse in 1968/1969 when he came back from Vietnam and when he went to Malaysia. Mrs Booth was a nurse. She noted that before Vietnam he never needed antibiotics, but after Vietnam he did need them. We note that on 4 August 2011 Mrs Booth said on a form providing further information about smoking that Mr Booth smoked 15 cigarettes per day from 1952 to February 1968 and then 20 to 30 cigarettes per day from March 1968 to February 1969 due to “stress of operational service”. Mrs Booth said she really did not know how much Mr Booth smoked and she was under pressure from the advocate assisting her with the form to “put something in”. She said it was “ridiculous”.
There is little material pointing to an increase in Mr Booth’s smoking and any connection between such an increase and Mr Booth’s operational service. But it could not be said there is no material pointing to the hypothesis.
IS A REASONABLE HYPOTHESIS RAISED?
The question remains whether the material is sufficient to make the hypothesis a reasonable one. Mrs Booth, although she never knew or observed how much Mr Booth smoked, considered that his smoking increased after his return from Vietnam. She formed this view because he spent more time in the garage – the place where he customarily smoked when he was at home. She also considered that he spent more time there because he was depressed and stressed on return from operational service and did not want to talk to anyone. This opinion of Mrs Booth’s is circular and tenuous. There is no material that has not now been described as a “guess” that directly points to Mr Booth smoking at least five cigarettes per day. It is assumed by Mrs Booth that he did. We note that she described the numbers of cigarettes she wrote on forms for the Repatriation Commission as guesses. She said she “had no idea” how much Mr Booth smoked at any time. As a nurse, she concluded from an increase in his coughing that his smoking increased but there is no medical information about his coughing or the bronchial condition she said he developed after operational service.
In Martin v Repatriation Commission [2012] AATA 744 the Tribunal neatly summarised the leading case law on the question on reasonableness of hypotheses:
37. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities: East v Repatriation Commission (1987) 16 FCR 517 at 533.
38. A “mere possibility” is not sufficient to make a hypothesis reasonable: Repatriation Commission v Bey (1997) 79 FCR 364; nor is an assumption sufficient to make a hypothesis reasonable: Byrnes v Repatriation Commission (1993) 177 CLR 564.
39. Nor is a reasonable hypothesis one that is merely plausible. It may be that its elements are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable”: Bull v Repatriation Commission [2001] FCA 1832 at [5].
40. A hypothesis will not be reasonable if it is “is obviously fanciful or impossible or not tenable or too remote or too tenuous”: East (above) at 532. That said, it does not follow, merely because a hypothesis is “not obviously fanciful or not possible, or not incredible or tenable or not too remote or not too tenuous”, that it is reasonable: see Bull (above) at [5]
Into the mix of material before us must be factored the representations made by both Mr Booth, to decision makers and to his treating medical practitioners, and Mrs Booth to decision makers that he did not smoke.
The material before us is vague and contradictory. Mrs Booth’s evidence to the Tribunal about how much Mr Booth smoked was, ultimately, that she had no idea. She only knew that his cough, which he had had since she had first known him, got worse and that when he came home from operational service stressed and depressed he spent more time in the garage. The hypothesis requires the following assumptions to be made:
·that Mr Booth smoked five or more cigarettes per day;
·that it follows from the increased amount of time he spent in the garage on his return from operational service that his smoking increased;
·that his cough got worse because he was smoking more; and
·that he smoked more because he was stressed and depressed after service in Vietnam.
The High Court in Byrnes v Repatriation Commission (1993) 177 CLR 569-570 said:
In some cases, the hypothesis may assume the occurrence or existence of a “fact”. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant’s hypothesis is not unreasonable. So, in the present case, the appellant’s hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered.
The Full Federal Court in Repatriation Commission v Stares (1996) 66 FCR 594 said:
The question s 120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran’s injury with war service. … An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.
We consider that in the circumstances of this case and on the basis of all of the material before us the assumptions required to be made to support the hypothesis are too extensive to make the hypothesis reasonable.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr W Stiles, Member. ...[Sgd].....................................................................
Associate
Dated 11 December 2012
Date of hearing 5 November 2012 Counsel for the Applicant Craig Colborne Solicitors for the Applicant KCI Lawyers Advocate for the Respondent N Bunn, DVA Advocacy
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