Porter and Repatriation Commission
[2004] AATA 575
•4 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 575
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N03/1412
VETERANS APPEALS DIVISION ) Re NEIL PORTER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell Date4 June 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Ms N Bell
Member
CATCHWORDS
VETERAN’S AFFAIRS – Applicant suffers from malignant neoplasm – assessment of reasonable satisfaction with reference to Statements of Principles – Factors relating to Service – whether smoking causally related to defence service – decision under review affirmed.
Veterans Entitlement Act 1986 section 68(1)
Statement of Principles No. 59 of 2002
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Keenan (1989) 19 ALD 509
Hawkins v Repatriation Commission (1993) 30 ALD 59
Repatriation Commission v Edwards, Federal Court, 3 September 1993, 250/1993
REASONS FOR DECISION
4 June 2004 Ms N Bell 1. This is an application made by Mr Neil Porter (“the Applicant”) for a review of a decision of the Repatriation Commission (“the Respondent”) dated 2 September 2002 that refused the claim for malignant neoplasm of the colorectum, as affirmed by the Veterans’ Review Board on 3 July 2003. The Applicant served in the Australian Army from 29 September 1971 to 28 March 1973. It is agreed between the parties, and I agree, that he has eligible defence service for the purposes of the Veterans Entitlement Act 1986 (“the Act”) from 7 December 1972 until his discharge on 28 March 1973 (section 68(1)). He was stationed in Singapore from 24 May 1972 to 20 February 1973.
2. It is agreed between the parties, and I agree, on the basis of the report of the Applicant’s General Medical Practitioner, Dr Mark Hardy (document T8, page 31), that the Applicant suffers from malignant neoplasm of the colorectum. It is also agreed that the date of clinical onset was 9 May 2002. This is supported by Dr Hardy at page 31 of the T documents.
3. It follows that the relevant standard of proof to be applied in this application is, in accordance with section 120(4), that of reasonable satisfaction. Section 120B of the Act provides for the question of reasonable satisfaction to be assessed by reference to Statements of Principles.
4. The parties agree and I concur, that the relevant Statement of Principles (“SoP”) in this application is SoP No. 59 of 2002 concerning malignant neoplasm of the colorectum. I note that SoP No. 59 of 2002 was revoked by SoP No 2 of 2004 but that, relevantly, it is in identical terms to SoP No. 59 of 2002. SoP No 59 of 2002 provides relevantly:
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out 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, malignant neoplasm of the colorectum or death from
malignant neoplasm of the colorectum is connected with the
circumstances of a persons relevant service are:
(a) suffering from a colorectal adenoma before the clinical onset of
malignant neoplasm of the colorectum; or
(b) smoking at least 25 pack years of cigarettes or the equivalent
thereof in other tobacco products before the clinical onset of
malignant neoplasm of the colorectum, and
(i) smoking commenced at least 35 years before the clinical
onset of malignant neoplasm of the colorectum, and
(ii) where smoking has ceased, the clinical onset has occurred
within 15 years of cessation; or
(c) drinking at least 500 kilograms of alcohol within a 25 year period
within the 30 years immediately before the clinical onset of
malignant neoplasm of the colorectum; or
(d) suffering from ulcerative colitis for at least 10 years before the
clinical onset of malignant neoplasm of the colorectum; or
(e) suffering from Crohns disease of the colorectum for at least 10
years before the clinical onset of malignant neoplasm of the
colorectum; or
(f) suffering from familial adenomatous polyposis before the clinical
onset of malignant neoplasm of the colorectum; or
(g) undergoing a course of therapeutic radiation involving the
abdominal or pelvic region 15 years or more before the clinical
onset of malignant neoplasm of the colorectum; or
(h) for malignant neoplasm of the colon only, an inability to
undertake more than a mildly strenuous level of physical activity
for at least 20 years within the 30 years before the clinical onset
of malignant neoplasm of the colorectum; or
(i) for malignant neoplasm of the colon only, being obese for at least
30 years before the clinical onset of malignant neoplasm of the
colorectum; or
(j) inability to obtain appropriate clinical management for malignant
neoplasm of the colorectum.
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 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;
5. The Applicant’s contention is that he increased his rate of smoking during his defence service and so the relevant factor of the SoP is factor 5(b).
6. Therefore, in order to satisfy the requirements of the SoP and establish that the Applicant’s malignant neoplasm of the colorectum is defence caused, the Applicant must establish that:
i) his smoking was causally related to his defence service; and
ii)he smoked at least 25 pack years of cigarettes (ie, 25 X 7,300 cigarettes) before the clinical onset of his condition (May 2002); and
iii)he started smoking at least 35 years before clinical onset, ie, no later than May 1967; and
iv)if he stopped smoking, then he ceased no earlier than May 1987 (15 years before clinical onset of his condition).
Was the Applicant’s smoking causally related to his Defence Service?
7. The Applicant’s evidence, given orally to the Tribunal and in his statement dated 1 December 2003, was that he began to smoke when he was 13 or 14, smoking his father’s and sister’s cigarettes. He began to buy his own cigarettes when he was 14 and had a part time job. By age 16 he was in full time employment and smoking about 20 cigarettes per day.
8. He said that in May 1972 he was posted to 6RAR in Singapore, on stand by to go to Vietnam if required and undertook jungle training in preparation for that.
9. The Applicant said the Singapore posting was his first time outside Australia. He said he and his fellows spent a lot of time “sitting around waiting for something to happen” and spent hours doing drills, marching and physical training, similar to the activity they had carried out prior to going to Singapore. He said they were “under a lot of pressure to keep going and do it correctly and quickly with a lot of yelling and screaming orders at you, trying to make you feel weak and useless.”
10. He said that during the evenings there was a lot of free time and little to do but drink and smoke. He described “peer pressure to be one of the boys” and sharing a room with 5 other men, all of whom smoked.
11. The Applicant said that he was upset when, by the end of 1972, he was facing his first Christmas away from his family. He said this time was made particularly stressful because his grandfather died and he was unable to attend the funeral and he learned that his mother was seriously ill with breast cancer. The Applicant could not remember whether he had asked to go home for his grandfather’s funeral. He also conceded in cross examination that he remembered that his father had died at that time because his mother had jogged his memory about it.
12. The Applicant conceded in cross examination that the level of peer pressure and pressure of training had been constant throughout his time in Singapore from May 1972 when he first got there and had not increased particularly in December 1972. He agreed that the pressure he felt in Singapore was continuous from May 1972 to February 1973.
13. He said that by December 1972 the work routine had become very boring and the novelty of being overseas had worn off. He also said that cigarettes were significantly cheaper in Singapore.
14. The Applicant said that his consumption of cigarettes rose sharply during this Christmas period and by the time he returned to Australia he was buying and smoking 10 packets of cigarettes each week and was also smoking 10 to 12 hand rolled cigarettes each day. He recalled that a family member commented on how much his smoking had increased.
15. He said he continued to smoke at that rate until sometime in 1981 when he ceased smoking regularly. After that he would smoke after playing touch football or hockey and when he went out for a drink. He noted that he had consumed 2 packets of small cigars on a recent golfing weekend. He said that in an average month he would smoke about 10 small cigars. However, he describes himself, when required to on forms, as a non smoker.
16. In considering whether there is a relevant connection between the Applicant’s eligible defence service and his smoking, I had regard to the Full Federal Court's judgment in Repatriation Commission v Tuite(1993) 39 FCR 540 in which Davies J (at 541) discussed the meaning of the expressions "arose out of, or was attributable to" eligible war service in s.9(1)(b) of the Act as follows:
“The words of s.9(1)(b) require that there be a causal connection between the eligible war service and the disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease. ... 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.”
17. I note, in accordance with the Applicant’s submission, that in Tuite the Court also found no fault with the conclusion of the Tribunal that aspects of life in camp, including boredom and cheapness of cigarettes, could have a causal influence on whether a person took up smoking. However, I note that in that case the veteran had not smoked before going into camp in the army and was smoking more than 20 cigarettes per day by the end of his time in camp. In this case the Applicant had a well established and considerable habit of 20 cigarettes per day before he entered national service.
18. I also had regard to the following passage from Pincus J's judgment in Repatriation Commission v Keenan (1989) 19 ALD 509 where his Honour discussed submissions by the veteran's counsel (at para 16):
“Counsel for Mr Keenan suggested in this Court that once it was shown that Mr Keenan started smoking in hospital during the war, the requirement of a causal connection with his circulatory diseases was satisfied. Smoking tobacco, he said, is notoriously addictive; there can be no difficulty about taking judicial knowledge of that, but nor can one fail to notice that most men of Mr Keenan's generation surely smoked at some stage of their lives, that some people take up smoking for a while and stop completely and that others (including, according to his evidence, Mr Keenan) start, stop for a substantial time and then restart. It is plainly not the law that an "eligible service " veteran suffering from the circulatory diseases which smoking causes must obtain a pension for them if he can show that he first smoked during the war.”
19. The Respondent contends that there are several problems with the Applicant’s attempt to connect his increased smoking to his eligible defence service. It was pointed out that the Applicant had already commenced smoking in his late teens and smoked up to 20 cigarettes per day prior to his defence service. He was therefore not subject to the same degree of peer pressure as a person who had not smoked before service. In addition the Applicant was subject to the screaming and yelling of orders and general pressure of training from May 1972. It is problematic to assert that it was only after 8 months of this treatment that the Applicant increased his smoking due to this pressure, coincidentally soon after the statutory date for commencement of eligible defence service.
20. The Applicant further contended that the reason he increased his smoking was that he was stressed by his grandfather’s death and his mother’s illness. The Respondent submitted that these reasons do not provide the necessary causal nexus to service. In particular, the Respondent relied on Hawkins v Repatriation Commission (1993) 30 ALD 59:
“[7] Under s.9(1)(b) it is sufficient that the disease the subject of the claim arose out of or was attributable to any eligible war service. A disease will be attributable to eligible service if the service contributed in a material way to its development. When a disease is alleged to be due to camp life or life on board ship, the question will usually be whether life in camp or on board ship 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 as distinct from being part of the circumstances in or on which the cause operates.' See Marshall v. Minister of Pensions [1948] 1 KB 106 at 110; W. v.Minister of Pensions (1946) 2 All ER 501 at 502; Minister of Pensions v Chennell [1947] 1 KB 250 at 256. In Goward v. The Commonwealth (1957) 97 CLR 355 at 364, Dixon CJ, Williams, Webb and Kitto JJ indicated that it was not sufficient that there be "antecedent conditions which are preliminary to, but hardly operative causes of, the accident."
21. The Respondent submitted that service was merely the setting in which the Applicant’s anxiety about his grandfather and mother occurred, and was not its cause.
22. The Respondent also relied on the judgment of Lockhart J in Repatriation Commission v Edwards, Federal Court, 3 September 1993, 250/1993 and in particular the following passage (at para. 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.”
23. The Respondent contended that the care to be exercised must be even greater when the commencement of (or increase in) smoking was during defence service, and in 1972.
24. I am persuaded by the Respondent’s submissions. I consider that the matters raised by the Applicant as having caused or contributed to the increase in his smoking, when viewed in the context of him having had a significant smoking habit for some 5 years previously, do not amount to a contributing cause. The Applicant had already existed under the same conditions in Singapore as he experienced in December 1972 since May of that year. He left Singapore in February 1973, just two months later. If conditions in Singapore contributed to the increase in his smoking, they would have done so since May 1972. It is unlikely that any contribution began only at the time from which his eligible defence service commenced.
25. As to the occurrences in December 1972 relied on by the Applicant, that is, his mother’s illness and his grandfather’s death, the Applicant conceded in his evidence to the Tribunal that he had had to be reminded recently by his mother of the time of his grandfather’s death and that he had not sought permission to return to Australia for his grandfather’s funeral.
26. I consider that the combination of the Applicant’s already well established smoking habit of 20 cigarettes per day, the lack of any causal link between his service and his mother’s illness or his grandfather’s death, his admitted failure to recall, unprompted, the time of his grandfather’s death, and his experience of some seven months of army life in Singapore immediately before the start of the period of his eligible defence service prevent me from being reasonably satisfied that the increase in his smoking was causally related to his eligible defence service. I am also confirmed in this view by the authorities cited above which distinguish between the setting in which an event occurs and the contributing causes of the event.
27. It is therefore unnecessary for me to consider the remaining issues outlined in paragraph 5 above, relating to the other requirements of the relevant SoP, or to consider the remaining aspects of the Applicant’s smoking history.
Decision
28. The decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Neil Glaser
AssociateDate of Hearing 3 March 2004
Date of Decision 4 June 2004
Solicitor for the Applicant Tony Latimore
Solicitor for the Respondent Shontelle Kenny
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