Repatriation Commission v Edwards

[1993] FCA 612

REPATRIATION COMMISSION v. GERALDINE KITCH EDWARDS
No. G250 of 1993
FED No. 612
Number of pages - 9
Veterans' Entitlements

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LOCKHART J

CATCHWORDS

Veterans' Entitlements - whether veteran commenced smoking because of boredom whilst on war service in Australia - whether death from gastric cancer war-caused - whether smoking habit war-caused - whether gastric cancer caused by smoking.

Veterans' Entitlement Act 1986

HEARING

SYDNEY, 26 August 1993

#DATE 3:9:1993

Counsel for the Applicant: P Hanks

Solicitors for the Applicant Australian Government Solicitor

Counsel for the Respondent: A T McInnes QC and C A Vindin

Solicitors for the Respondent: Kenneth Harrison

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The decision of the Administrative Appeals Tribunal (Veterans' Appeals Division) be affirmed.

3. The Repatriation Commission pay the costs of the appeal of Geraldine Kitch Edwards.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

LOCKHART J The question in this appeal is whether the Administrative Appeals Tribunal (Veterans' Appeals Division) ("the Tribunal") erred in holding that the death of the late Victor Allan Edwards ("the veteran") was war-caused.

1. The Tribunal found that there was a causal connection between the veteran's smoking of cigarettes and his war service and that his gastric cancer and subsequent death arose out of or was attributable to his heavy cigarette smoking. Both these findings are challenged in this appeal by the applicant, the Repatriation Commission ("the Commission"). The respondent to the appeal, Geraldine Kitch Edwards, is the widow of the veteran.

2. On 11 May 1990 the Commission decided that the death of the veteran was not war-caused. On appeal to the Veterans' Review Board, the Board determined on 2 July 1991 that the decision of the Commission be affirmed. Mrs Edwards then applied to the Tribunal for review of the Commission's decision, and the Tribunal set aside the earlier decision of the Commission. The Commission appeals to this Court.

3. Section 13(1) of the Veterans' Entitlement Act 1986 ("the Act") provides that where the death of a veteran was war-caused the Commonwealth is, subject to the Act, liable to pay, in the case of the veteran's death, pensions to the veteran's dependants.

4. The term "veteran" is defined, inter alia, to mean "a person ... who (has) rendered eligible war service", as defined. It is common ground that the late Mr Edwards is a veteran for the purposes of s. 13.

5. Section 120 of the Act prescribes the manner in which the Commission is to determine a claim under Part II (which includes s. 13) where the claim involves a relationship between a veteran's death and his or her war service. Section 120 is the critical section for present purposes. Where a claim is made for a pension in respect of the death of a veteran which relates to the veteran's "operational service" (so far as presently relevant this means service outside Australia during the Second World War), the claim must succeed unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination: s. 120(1). Likewise, where the claim in respect of the veteran's death relates to the veteran's service as a member of a "Peacekeeping Force", the claim must succeed unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination: s. 120(2).

6. It is common ground that s. 120(4) is determinative of Mrs Edwards' claim in this case. It provides that, except in making a determination to which sub-s. (1) or (2) applies, the Commission shall, in making the determination or decision in respect of a matter arising under the Act, decide the matter "to its reasonable satisfaction". This imports the civil standard of proof of the balance of probabilities. The Tribunal's reasonable satisfaction must mean that it finds on the balance of probabilities that there is the requisite causal relationship between the veteran's war service and his death.

7. The death of the veteran will be war-caused if the disease from which he died arose out of or was attributable to eligible war service. It is not in dispute that the veteran died on 11 November 1984 from gastric carcinoma, a form of cancer of the stomach.

8. The issues before the Tribunal were whether it could be satisfied on the balance of probabilities that it was more likely than not that the deceased's smoking habit arose out of or was attributable to his war service. If that question was answered in favour of the veteran, then the second question for the Tribunal to decide was whether on the balance of probabilities the deceased's gastric cancer arose out of or was attributable to his war service. If the Tribunal could reasonably conclude that the veteran's gastric cancer arose out of or was attributable to his heavy cigarette smoking then this second question must be answered in favour of the veteran.

9. The Tribunal answered both questions in favour of the respondent and both findings are challenged in this appeal.

10. The veteran was born on 9 November 1909. He commenced full time war service on 1 October 1941 when 32 years of age. Both before and after his war service he was a famous tennis coach in Sydney.

11. Soon after commencing full time military service the veteran was appointed on 13 October 1941 to the rank of Acting Sergeant. On 12 June 1942 he was appointed to the rank of Warrant Officer, Class 2 and on 31 December 1942 he was commissioned an Acting Lieutenant. He obtained the temporary rank of Captain on 21 May 1943 and ceased full time service on 18 December 1945. He was granted the rank of honorary Captain shortly thereafter and was discharged from the Australian Armed Forces.

12. Mrs Edwards first met the veteran in 1974 and they married in March 1979. The veteran had been previously married, and there were four daughters to that marriage. Mrs Edwards and the veteran had three sons by their marriage.

13. The veteran was admitted to Royal North Shore Hospital on 19 October 1984 and shortly thereafter a malignant gastric ulcer was diagnosed. He died on 11 November 1984 of a gastric carcinoma.

14. The first question is to determine whether the Tribunal erred in its finding that it was reasonably satisfied that the deceased's habit of smoking arose out of or was attributable to his war service.

15. Evidence on this issue was given by Mrs Edwards and by a Mr Sheel. Mr Sheel first met the veteran in 1938 when he, as a 14 year old boy, was coached by him in tennis. They met again in 1945, apparently not long before the veteran was discharged from the army in December of that year.

16. Mrs Edwards' evidence may be summarized as follows. The veteran told her that he took up smoking in his 30's (he was aged 32 to 36 during his war service). He told her that he had never smoked until he joined up. She had the impression from what he had told her that he had a stressful job during the war. He never told her how much he smoked when he was in the army. When Mrs Edwards first met her husband he smoked three packets of cigarettes a day, sometimes he smoked less but his attempts to reduce smoking were unsuccessful. At best he reduced to 2 1/2 packets per day for a few months. He tried hard to give up smoking but failed to do so.

17. Little is known about what the veteran did during the war except that he did not serve overseas; though he served in either brigade or divisional headquarters, most if not all the time, and for a large part of which he was in charge of "transport pools".

18. Mr Sheel gave evidence that when he saw Mr Edwards shortly before his discharge in December 1945 he was told by the veteran that he had learned to smoke in the army "because there was nothing else to do. I was bored." By that time the veteran was a chain smoker of cigarettes. Mr Sheel said that the veteran "was always jerky ... he would be puffing away and he never had a cigarette out of his mouth. That seemed to - that must have calmed him down somehow or other." He never observed a smoking habit of the veteran before the war, but his opportunity to observe this would have been limited because he was coached for about one hour a week when he was a 14 year old boy. Mr Sheel met the veteran regularly after his discharge from the army and he observed him as a chain smoker of cigarettes. Mr Sheel was unable to compare the emotional state of the veteran before the war with his apparently "jerky" condition thereafter.

19. The Tribunal found that there was more than merely a temporal connection between the veteran's commencement of smoking and his war service. It accepted Mr Sheel's evidence that he was told by the veteran that he commenced smoking during his war service because of boredom and accepted Mr Sheel in his statement that the veteran was "edgy" on return from service. It found that there was nothing unusual in the history of the veteran commencing smoking on service because of boredom and saw no reason not to accept the evidence of Mr Sheel on this issue.

20. The Tribunal said that it had been established to its reasonable satisfaction that there was a causal connection between the veteran's smoking and his war service. In so doing it followed the decision of a Full Court of this Court in Repatriation Commission v Tuite (1993) 39 FCR 450 and referred to the reasons of Davies J in that case. The Tribunal said:
    

"The boredom of service for an eminent tennis coach is, in our view, a contributing cause not merely the setting in which his smoking occurred. We also find that by the end of his service he had developed a very heavy smoking habit which continued for the rest of his life, and this smoking habit was attributable to his service."

1. This finding was attacked by the Commission. It was submitted by counsel for the Commission that, although there was some evidence on which the Tribunal could find that the veteran began to smoke during his war service, there was no evidence to support the finding of the Tribunal that as a matter of probability rather than conjecture or speculation the veteran's service caused him to commence to smoke; there was no evidence which would support a finding that the veteran's war service was anything more than the setting in which he began to smoke.

2. As mentioned earlier, the death of a veteran should be taken to have been war caused if the death arose out of or was attributable to any eligible war service rendered by the veteran. The expressions "arose out of" or "was attributable to" and like expressions in similar legislation have been discussed in many of the reported cases. The words "arose out of" require a consequential relationship of the death of the veteran with the war service out of which it is said to arise. The expression is satisfied if some less proximate causal relationship than "caused by" or "results from" is established. A fanciful relationship or one that is plainly tenuous does not answer the description of "arose out of": see Repatriation Commission v Law (1980) 47 FLR 57 at 67.

3. The expression "was attributable to" involves an element of causation. The cause need not be the sole or dominant cause; it is sufficient if the cause is one of a number of causes provided it is a contributing cause. The war service of the veteran must be a contributing cause to his death: see Law's Case at 68.

4. 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. His war service was performed in Australia primarily in relation to control of transport pools and smoking was taken up because of boredom. Plainly on the facts of this case the Tribunal was justified in concluding that there was a temporal connection between the veteran commencing smoking and his war service; the war service provided the setting in which the veteran began to smoke.

5. If the standard of satisfaction required of the Tribunal by s. 120 had been the standard mentioned in sub-ss. (1) or (2) (namely, that the Tribunal was obliged to determine that the death of the veteran was war caused unless it was satisfied beyond reasonable doubt there was no sufficient ground for making that determination), there would I think be no doubt that the Tribunal would be justified in reaching the conclusion that it could not be satisfied beyond reasonable doubt that there was no sufficient ground for making the determination that the death was war caused. But sub-s. (4) of s. 120 is the relevant statutory provision here because the veteran was not on "operational service", though he was performing "eligible war service" in that he was a person who rendered continuous full time service, not being operational service, as a member of the Defence Force during World War II, service that commenced before 1 July 1947 (s. 7(1)(c)).

6. Although the facts of Tuite's Case were different from the facts of the present case, the Tribunal was justified in relying upon it as authority for the proposition that "eligible war service" encompasses not only active service but all the incidents of service such as life in camp (per Davies J at 541) and that boredom of life in camp may be an incident of camp life which can have a causal influence upon the decision of the veteran to take up smoking and upon his continuing that habit (per Burchett and Einfeld JJ at 545).

7. Although the evidence in this case before the Tribunal in support of its conclusion that the veteran's smoking habit arose out of or was attributable to his war service is rather meagre; nevertheless the evidence of Mr Sheel in particular and to a lesser extent the evidence of Mrs Edwards was accepted by the Tribunal as sufficient to support its finding that it was reasonably satisfied of the requisite causal link between the veteran's smoking and his war service. Provided there is evidence to support this finding it is for the Tribunal to determine the evidence which it accepts as it is the judge of the facts. This is not a case where there was no evidence upon which the Tribunal could reasonably conclude that there was the requisite link between war service of the veteran and his subsequent death. Fragile though the evidence may be, it has not been established to my satisfaction that the Tribunal erred in its conclusion.

8. The next question is whether the Tribunal erred in its finding that the veteran's smoking habit was a cause of his gastric carcinoma. The medical evidence before the Tribunal was from two witnesses. Professor Gabriel Kune, Professor Emeritus of Surgery at the University of Melbourne, was called by Mrs Edwards. Dr John Levi, Head of the Department of Clinical Oncology, at the Royal North Shore Hospital Sydney, was called by the Commission.

9. Professor Kune's expertise is in gastro-intestinal disease and he has undertaken research into the cause of gastro-intestinal cancer. At the time of the hearing before the Tribunal the Professor was completing an "in-depth review of the scientific evidence regarding the association between smoking and gastric cancer". The Professor wrote three reports, each of which was in evidence in the case and he gave oral evidence. He referred to a number of case control studies carried out in various parts of the world. Professor Kune expressed the opinion that various factors have been shown in studies to be relevant to the development of carcinoma of the stomach including "socio-economic status", "occupational exposures", "alcohol consumption", "previous diet" and "smoking". The Professor expressed the opinion that there was substantial scientific evidence which indicated that smoking was a likely aetiologic factor in gastric cancer. He said that the causal relationship between smoking and cancer of the stomach cannot be said to have been proven beyond doubt, but that:
   

"the level of evidence is more than is required for a reasonable hypothesis. In my view, the currently available evidence, while it has not been proven beyond doubt, makes it more likely than not that smoking is at least one of the aetiologic factors in gastric carcinoma."

1. He said this in his first report of 25 March 1992. In his second report dated 2 August 1992 and in his third report of 4 September 1992 the Professor in essence confirmed the views expressed in his first report, but referred also to other matters. In his oral evidence Professor Kune again referred to the various studies that have been carried out to support his earlier conclusion and he expressed in his oral evidence substantially the same conclusions as he did in his earlier reports.

2. Dr Levi has had extensive experience in clinical and laboratory cancer research including research into gastro-intestinal cancer. Dr Levi prepared two written reports of 20 January 1992 and 10 September 1992 and he gave oral evidence. Dr Levi's view was that "at the very most" the association between tobacco smoking and stomach cancer is weak and that at the date of his evidence no definite causal link could be established though he agreed that he was not in a position to say that there is no association between cigarette smoking and stomach cancer. Dr Levi referred to the studies which had been analysed by Professor Kune and said that they could not be relied upon to support the conclusions which the Professor drew from them.

3. The Tribunal analysed the evidence of the two medical experts. In the second and third last paragraphs of its reasons the Tribunal set out its reasoning for preferring the evidence of Professor Kune to Dr Levi. In essence what the Tribunal did, as I understand it, was not simply to state that having heard and read the evidence of the two doctors it preferred the evidence of Dr Levi, a course which was open to the Tribunal to take. It said that Dr Levi in reaching his conclusions, had with respect to the various studies that had taken place throughout the world on the question of the link, if any, between previous smoking and gastric cancer, applied the scientific proof of causation, namely, that to obtain reliable evidence from such studies in essence the same result had to be achieved in 95 out of 100 studies or, as the Tribunal put it:
   

"The Tribunal is of the view that the standard of proof pursued by Dr Levy is scientific proof of causation - he referred to the need for majority of studies to be positive at the 0.05 level of significance."

The Tribunal said that it did not have to be satisfied to such a high standard. It was sufficient for it to be satisfied on the balance of probabilities of matters relevant to a causal link between tobacco smoking and gastric cancer. Therefore, applying that standard of proof, it was satisfied that the conclusions of Professor Kune were justified on the balance of probabilities with respect to the research which the Professor had relied upon. It therefore preferred the evidence of Professor Kune.

1. In my opinion the Tribunal was justified in accepting Professor Kune's opinion, based upon the studies to which he referred, that there had been established a connection between smoking and gastric cancer. It was a matter of fact for the Tribunal to decide whether it preferred Professor Kune to Dr Levi and in essence it preferred the evidence of the former. This was a conclusion that was open to the Tribunal and it cannot be impeached.

2. I would dismiss the appeal with costs.

3. The orders of the Court are that:-
   

1. The appeal be dismissed;

2. The decision of the Administrative Appeals Tribunal (Veterans' Appeals Division) be affirmed; and

3. The Repatriation Commission pay the costs of the appeal of Geraldine Kitch Edwards.