Re Withers and Repatriation Commission

[2000] AATA 990

DECISION AND REASONS FOR DECISION [2000] AATA 990

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N99/1140
VETERANS'      APPEALS       DIVISION)  
           Re:     EDNA JOYCE WITHERS  
  Applicant
           And:    REPATRIATION COMMISSION  
  Respondent

DECISION

Tribunal:       Mrs H. E. Hallowes, Senior Member      

Date:14 November 2000

Place:Sydney

Decision:      The decision under review is affirmed.   

(sgd) H.E. Hallowes
  Senior Member
VETERANS' AFFAIRS —widow's pension — malignant neoplasm of the bladder — whether veteran a smoker — whether a reasonable hypothesis connecting death of veteran with war service as a result of smoking at least 10 cigarettes per day as a result of war service
Administrative Appeals Tribunal Act 1975 ss.34B, 37
Veterans' Entitlements Act 1986 ss.8, 13, 120, 120A, 196B
Statement of Principles concerning Neoplasm of the Bladder

Instrument Nº 231 of 1995 as amended by Instrument Nº 362 of 1995

Repatriation Commission v Keeley (2000) 31 AAR 150
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISIONS

14 November 2000  Mrs H.E. Hallowes, Senior Member

1. The applicant seeks review of a decision made by a delegate of the Repatriation Commission made on 2 July 1996, which was affirmed by the Veterans' Review Board ("VRB") on13 May 1999, that the death of Mr Robert Melville Withers ("the veteran") was not war-caused pursuant to section 8 of the Veterans' Entitlements Act 1986 ("the Act") and that his widow, the applicant, is not entitled to be paid widow's pension pursuant to section 13 of the Act.

2. The application was originally listed for hearing with the parties to appear in person. The Tribunal was advised that the applicant was too ill to attend the hearing and, with the consent of the parties, the matter was determined without a hearing under section 34B of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). The Tribunal had before it the documents lodged pursuant to section 37 of the AAT Act ("the documents"). The Tribunal invited the parties to lodge any further submissions they may wish to make, particularly in light of the recent decision handed down by the Full Federal Court in the matter of Repatriation Commission v Keeley (2000) 31 AAR 150. Both parties lodged further submissions.

3. The veteran served with the Australian Army between 20 February 1942 and 10 January 1946, including service overseas. He therefore had operational service 4. and the standard of proof the Tribunal must apply in considering the matter is provided under subsections 120(1) and (3) of the Act and, also, as the applicant lodged her claim on 12 June 1996, subsection 120A(3). The relevant provisions are as follows:

   120(1)     Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

   (2)          Where a claim under Part IV:

   (a)in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or

   (b)in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;

   the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
   . . .

   (3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

   (a)that the injury was a war-caused injury or a defence-caused injury;

   (b)that the disease was a war-caused disease or a defence-caused disease; or

   (c)that the death was war-caused or defence-caused;

   as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
   . . .

   120A(3)   For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

   (a)a Statement of Principles determined under subsection 196B (2) or (11); or

   (b)a determination of the Commission under subsection 180A (2);

   that upholds the hypothesis.

4. 5.        The veteran died on 4 May 1996 and his cause of death was certified to be "Transitional cell carcinoma of bladder".   The Repatriation Medical Authority determined a Statement of Principles ("SoPs") concerning Malignant Neoplasm of the Bladder under subsection 196B(2) which is relevant to this application, being, at the time the delegate of the Repatriation Commission determined the matter, Instrument Nº 231 of 1995, as amended by Instrument Nº 362 of 1995.   The applicant submitted that factor 1(f) connected the veteran's death with the circumstances of his service, factor 1(f) providing:

   . . .

   (f)smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of malignant neoplasm of the bladder; or;

   . . .

The Instrument defined "malignant neoplasm of the bladder" to mean "a malignant disorder arising from the cells lining the bladder, attracting ICD code 188".  

1. The applicant told the VRB that the veteran was a light smoker before service and that he only smoked 3 to 4 cigarettes per day.   It was her contention however that after service his smoking increased to 40 cigarettes per day.   The documents include a statement signed by the applicant on 12 March 1999 as follows:

   I met my husband, Robert Withers in 1936 and we married in 1938.   He enlisted on 20 February 1942.
   He was aver [sic] light smoker smoking about 3-4 per day before the war but when he returned he smoked very heavily.   He was a changed man as his nerves were shot to pieces.
   After the war he smoked before and after breakfast, he smoked at work, he smoked after work and after dinner before bed he smoked 3-4 cigarettes.
   He was extremely unsettled.   After dinner he would disappear for hours.   He slept very badly and my sister who lived next door often heard him call out at night.   After the war he slept very badly.
   Throughout our married life I usually bought him the cigarettes.   I would buy 2 cartons of Craven A or something called 333.   His mates came to the house and they played cards and smoked.
   In the 1960's I developed asthma and he attempted to give up but he couldn't.
   He continued to smoke after he retired.   His nerves were very bad and I begged him to do something about it but my husband was a very pig headed man and refused to get help.
   He finally gave up smoking in 1993 just before our beloved son died.   He was diagnosed with a brain tumour and as he was a smoker he wanted his father to stop.
   I know we told some doctors and the department he didn't smoke but as I say he was a very pig headed man and his nerves prevented him from getting help.

The applicant lodged an undated statement made by the veteran's daughter, Mrs S. Ford, with the Tribunal which advised that her father smoked until 1993.   She stated her father

. . . would not listen to us as we grew up regarding giving up smoking, but as he was a very stubborn man he just ignored everything, down to not wanting it put on any records that he smoked. 
. . .

1. Mr H. Gilvear also provided a statement to the Tribunal dated 3 June 1998:

   . . .
   I first met Bob Withers in late 1946 when I started to work at the Dowling Street Tram Depot in Sydney.   Within weeks of joining the work force we became very close friends.   Our close friendship was to last until his death in 1996.
   For as long as I had known Bob, he was a heavy smoker.   I too became a heavy smoker.   It was nothing for us to smoke anything between twenty to twenty five cigarettes a day.   The brands we smoked varied, depending on the prices at the time of buying a new packet.   Two of the brands we regularly smoked were 333's and Craven A.   During our long shifts working on the trams, a group of fellow workers would meet daily for what we called in those days a smoke O.   This would involve a cigarette and a chat.
   After the tram depots closed in Sydney we were each sent to a different bus depot to work.   Bob was sent to the Waverley depot and I was sent to the Randwick Depot.   In spite of not working together our friendship was to continue over the years on a more social basis.   A few years later I quit smoking but Bob continued to smoke.   In those days we were not educated on the damage smoking did to your health as we are now.
   In all the years I had known Bob, I found him to be a very good friend who was a quiet natured person who was a very heavy smoker.
   . . .

2. The VRB noted in its reasons for decision that, ". . . since at least the late 1960s, Mr Withers had consistently told doctors that he was a non-smoker, . . .".   The VRB spoke to the applicant by telephone on 13 May 1999 and recorded that:

   . . . Before the war he was "a light smoker" – about 10 to 20 a day.   . . .   After the war, however, he smoked up to 40 a day.
   . . . Her husband was "a very very pig-headed and stubborn man" and never gave up smoking.   He smoked at home and at work.   His nerves were too bad.   He stopped for two to three months but then took it straight up again.   . . .
   [S]he believed he smoked very heavily at work.   . . .
   The Board asked Mrs Withers why records in her late husband's Departmental files describe him as being a non-smoker.   Mrs Withers replied that for the last 30 years she had gone with her husband to his doctor's appointments.   He could never go to a doctor on his own because he was "too confused."   Mrs Withers said that her husband never said he was a non-smoker.   She later said that she does not recall that question ever being asked of him.   She recalls sending him to a DVA doctor in Chester Hill.   When he came home he threw a letter at her and said "Look what you've bloody done."
   . . .

The VRB went on to note:

. . . On the other hand, there are numerous references in medical reports on Mr Withers' Departmental files from 1968 to 1985, all recording him as being a non-smoker.   As examples, in a medical history sheet dated 15 February 1968 is written "non-smoker, always."   On 19 June 1970 on a medical history sheet is recorded "Smoke Nil."   . . .

The VRB also noted that the veteran was 32 years old when he enlisted.

1. It was contended by Ms A. Toliopoulos, solicitor with Legal Aid New South Wales, on behalf of the applicant that the veteran had been a light smoker, smoking three to four cigarettes before service but that, after returning from service, he was a heavy smoker and a "changed man and his nerves were shot to pieces".   It was further noted that the veteran's anxiety/depressive state was accepted as war-caused and that his daughter's statement pointed to the veteran not giving up smoking until 1993, following a promise made to his dying son.

2. In providing a written submission to the Tribunal, Mr R. Wallis, an advocate with the Department of Veteran's Affairs, submitted on behalf of the respondent that the clinical onset of the veteran's transitional cell carcinoma of the bladder was 19 November 1995.   He was relying on information provided by the applicant on her claim form, the applicant there recording 19 November 1995 as the date on which the veteran consulted a specialist about his carcinoma.   This record points to the veteran's carcinoma as possibly being diagnosed shortly before that time.   In his written submission Mr Wallis drew the Tribunal's attention to the Repatriation Commission's medical records included in the documents.   In a clinical history, taken in June 1970, it was recorded that the veteran "Smoke nil".   In lodging his written submission Mr Wallis also provided the Tribunal with additional material from the veteran's Repatriation Commission's records where it was recorded in December 1968 that the veteran was "Non smoker always", although it was also recorded that the veteran had been ". . . Vague in his narration of history".   Similarly, a war pension medical report dated 30 November 1971 stated that the veteran was a "non-smoker always".   Clinical notes recorded on admission for a surgical procedure dated 28 June 1974, and the pre-operative assessment dated 1 July 1974 record that the veteran was not a smoker.   Clinical notes made on admission for surgical procedure dated 5 August 1985, the pre-operative assessment, and further clinical notes again record that the veteran did not smoke and that he had never smoked.

3. Mr Wallis drew the Tribunal's attention to the statement made by the applicant before the VRB that:

   . . . for the last 30 years she had gone with her husband to his doctor's appointments.   He could never go to a doctor on his own because he was "too confused" . . .   .  

The applicant contended that the veteran never said that he was a non-smoker.   It was the respondent's contention that the veteran was a non-smoker as the records made when the veteran was alive were the best evidence available.  

1. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court restated the course which the Tribunal is to take in determining whether the death of a veteran shall be taken to have been war-caused, at page 206, as follows:

   1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.   No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

   2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11).   If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

   3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.   The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).   If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.   If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

   4.The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.   If not so satisfied, the claim must succeed.   If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it.   In so doing, no question of onus of proof or the application of any presumption will be involved.  

2. In this application the material points to a hypothesis connecting the death of the veteran with the circumstances of his service.   The applicant's evidence was that the veteran was a light smoker before service but that after service his smoking increased considerably.   The veteran's anxiety depressive state had been accepted as war-caused.   The evidence provided by the applicant points to the veteran as smoking until the early 1990s.   Smoking is known as a predisposing factor to carcinoma of the bladder.   There is a SoPs in force and the Tribunal finds that the hypothesis put forward on behalf of the applicant is consistent with the template to be found in the SoPs to connect the death of the veteran with the circumstances of his service through factor 1(f) of the SoPs.  

3. The Tribunal turns to subsection 120(1) of the Act and, having given careful consideration to the evidence before it, is satisfied beyond reasonable doubt that the death of the veteran was not war-caused. The Tribunal accepts the applicant's contention that, despite the number of records to the contrary, the veteran was probably a smoker. The evidence satisfies the Tribunal beyond reasonable doubt however that, if the veteran was a smoker, the veteran had a well-established smoking habit before service. The VRB had the advantage of speaking to the applicant and she told the VRB that before service the veteran smoked 10 to 20 cigarettes a day. At the date of enlistment the veteran was over 32 years of age. The Tribunal is satisfied beyond reasonable doubt that, if he was a smoker, that habit was well-established by the time he enlisted for service. Mr Gilvear estimated that the veteran smoked between 20 to 25 cigarettes a day after service. They would have a "smoko" together when working on the trams which involved a "cigarette and a chat". Considering this evidence, there may have been some increase in the number of cigarettes the veteran smoked after service, but his smoking habit is not attributable to his war service. Rather, it was a well-established habit before service which the veteran probably continued and possibly increased post-war as part of the convivial atmosphere at the tram depots when Mr Gilvear also became a heavy smoker. The death of the veteran did not arise out of, nor is it attributable to, the service rendered by him.

4. It is for these reasons the decision under review will be affirmed.

   I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mrs H.E. Hallowes, Senior Member
   signed:          Catherine Thomas
     Personal Assistant

   Date of Hearing:  12.04.00
   Date of Decision:  14.11.00

   Solicitor for the Applicant:           Ms A. Toliopoulos, solicitor, Legal Aid New South Wales

   Solicitor for the Respondent:       Mr R. Wallis, Departmental Advocate