Roberts and Repatriation Commission

[2005] AATA 356

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 356

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1

VETERANS'     APPEALS      DIVISION

Re:         BRIAN ROBERTS

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             21 April 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ emphysema - smoking - whether war‑caused

Veterans’ Entitlements Act 1986 ss9, 120(1), 120(3), 120(4), 120A

Fogarty v Repatriation Commission (2003) 37 AAR 363

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill (2002) 69 ALD 581

REASONS FOR DECISION

21 April 2005  G.D. Friedman, Member

1.      This is an application by Brian Roberts (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 30 September 2003.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 17 October 2002 to refuse a claim for disability pension for chronic obstructive airways disease, chronic pancreatitis and peptic ulcer disease, because the conditions were not war-caused.

2.      At the hearing of this matter on 10 February 2005 and 31 March 2005 Ms A. Magee of counsel represented the applicant and Mr K. Herman, an advocate with the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), plus two exhibits (Exhibit A1 and A2) lodged by the applicant and nine exhibits (Exhibits R1 to R9) lodged by the respondent.

BACKGROUND

4.      The veteran was born on 15 October 1940.  After leaving school he commenced an apprenticeship as a carpenter.  On 23 February 1959 he enlisted in the Royal Australian Navy (the navy) and trained at HMAS Cerberus as a sick berth attendant, which included training at St Vincent’s Hospital in Melbourne.  He served on the shore establishment HMAS Albatross, before transferring to HMAS Duchess in 1965.  He also served on HMAS Anzac and HMAS Stalwart.  He rendered operational service in accordance with the Veterans’ Entitlements Act 1986 (the Act) as follows:

·from 27 May 1965 to 26 June 1965 (HMAS Duchess: Vietnam escort)

·from 11 August 1965 to 25 September 1965 (HMAS Duchess: Far East Strategic Reserve (FESR))

·from 20 September 1965 to 3 October 1965 (HMAS Duchess: FESR)

·from 26 October 1965 to 24 December 1965 (HMAS Duchess: FESR)

·from 4 January 1966 to 2 March 1966 (HMAS Duchess: FESR)

He also rendered defence service as defined in the Act from 7 December 1972 to 22 February 1979.  Seagoing experience included visits to Vietnam on a vessel escorting HMAS Sydney, and patrol duties in Singapore and the Malacca Straits. 

5.      The applicant has the following accepted disabilities:

·   scar right upper lip

·   bilateral sensorineural hearing loss.

6.      The following conditions have not been accepted as being war-caused or defence-caused:

·   facial disfigurement right lower lip

·   facial disfigurement right eyelid

·   chronic obstructive airways disease

·   chronic pancreatitis

·   peptic ulcer disease.

7.      In January 2002 the applicant was diagnosed with emphysema related to his smoking habit, and moderate chronic obstructive airways disease.  On 17 July 2002 he lodged a claim for hearing loss, pancreatitis, gastric duodenal ulcer and bronchial condition.  On 17 October 2002 the respondent accepted the claim for bilateral sensorineural hearing loss and refused the claim for the other conditions; and granted pension at 10 per cent of the general rate.  On 30 September 2003 the VRB affirmed the decision as it related to the rejected conditions.  On 2 January 2004 the applicant lodged an application with the Tribunal for review of the decision of the VRB.

8.      At the hearing the parties informed the Tribunal that the only issue before the Tribunal was whether the applicant’s chronic bronchitis and emphysema are war‑caused as a result of cigarette smoking by the applicant during operational service on HMAS Duchess from 11 August 1965 to 25 September 1965 (the relevant period).

EVIDENCE

9.      In a written statement dated 23 December 2003 (Exhibit A1) the applicant said that he was a non-drinker and a non-smoker before he enlisted in the navy.  He said that the duties of HMAS Duchess, while patrolling the Malacca Straits, included intercepting and searching Indonesian boats for weapons and the presence of Indonesian guerrillas or other insurgents, as part of the campaign to clear the Straits.  He said that prior to his operational service he had been smoking at the rate of 20 cigarettes per day, but that during operational service his consumption rose to 50 cigarettes per day.  He attributed the increase to the physical discomfort and stress of operational service.

10.     The applicant said that, during the relevant period, he was required to sleep on the upper deck of HMAS Duchess, which was uncomfortable.  He stated that he became anxious and feared for his safety because there was danger to the ship’s company during the process of searching Indonesian boats.

11.     In oral evidence the applicant stated that during night patrols he was required to sleep on the upper deck with the landing party, whose task was to board suspicious vessels.  He said that as the only member of the ship’s company (apart from the doctor) with medical training, he was expected to be present to administer first aid, if required, to Indonesians who were apprehended.  He explained that on one occasion an Indonesian had a cut nose and another had suffered a bayonet wound.  He stated that he slept in full battledress, including helmet, which was uncomfortable in the hot conditions. 

12.     The applicant said that he was told that, on an earlier occasion, an Indonesian had thrown a hand grenade onto a British ship, causing the death of three sailors.  He said that this made him apprehensive.  The applicant said that smoking was not permitted on the upper deck in blackout conditions that applied during night patrols, so he and the other personnel in the landing party used to smoke inside a small compartment on the upper deck near their stretchers.  He said that his anxiety and apprehension caused his cigarette consumption to increase to 50 per day until he ceased smoking in January 2003 when he was diagnosed with emphysema.

13.     The applicant referred to the Claimant report-cigarette smoking questionnaire, which he completed on 28 June 2002 for the Department of Veterans’ Affairs (T5, p28), and noted that he recorded that he first started smoking cigarettes on a regular basis on 3 March 1959 and that he Started with 10 per day because of the stress of service – away from family.  Hooked on weed.  In answer to question 6: Did the amount smoked per day ever change since the veteran first started smoking on a regular basis? the applicant wrote: March 1960: 25 per day: stress of service.  The applicant stated that this answer was incorrect, as the figure should have been 50 per day.  He admitted that he should not have signed the form as it was inaccurate.

14.     The applicant stated that two or three days after he had signed the form he had informed the welfare officer of the Returned Services League of Australia, who had completed the questionnaire after interviewing him, and had asked him to amend  the form, but no amendments were made.  He explained that one month later he changed welfare officers because of his dissatisfaction with the process.

15.     The applicant noted that in his clinical notes (Exhibit R3 p5) Dr Manolitsas had stated: …Mr Roberts has been a smoker of 20 cigarettes per day.  The applicant said that this was inaccurate and he had deliberately understated his cigarette consumption.  He said he had done so because, as a sick berth attendant of many years’ standing, who had joined a pharmaceutical company after his discharge from the navy, he was embarrassed to admit to medical personnel that he was a heavy smoker.  He said that at the time of his service the navy had encouraged smoking and drinking; and as a young seaman away from home for the first time, he indulged in both habits. 

16.     Under cross-examination the applicant said that during an incident where he had to treat injured Indonesians he felt uncomfortable, because this was his first contact with the enemy.  He stated that later he became used to dealing with such situations, although procedures changed after an incident involving a hand grenade.

17.     In a written statement dated 6 June 2004 (Exhibit R1 p11), Captain T. O’Sullivan, Royal Australian Naval Reserve, stated that he served on HMAS Duchess as a sub-lieutenant in 1965/1966.  He had been a watch-keeping officer on the bridge and had associated duties.  In relation to the operating procedures for stopping and searching boats apprehended during patrols, Captain O’Sullivan stated that most of the boats were illegal barter traders rather than guerrillas.  He said:

To my recollection, we boarded few of the boats that we stopped during our patrols.  We did not bring the boats alongside because, prior to our deployment, there had been a report of an RN [Royal Navy] minesweeper (I think HMS DARTINGTON) experiencing casualties when a boat that it had brought alongside to search, detonated explosives, killing a Midshipman.

The policy therefore was to stop the boats, almost always at night, and shine a 10‑inch lantern on them for identification.  If they were small open boats, we tended to allow them to go on their way, as we could see what they were carrying from onboard.  If the boat was larger, with covered decks and looked suspicious, we would send the boarding party away to search it and examine the crews’ papers.

…I recall no instances of intercepted boats crews being told to jump into the water and their boats being sunk…Most of the boats that DUCHESS intercepted were illegal barter traders rather than guerrillas.

18.     Captain O’Sullivan said that in the hot conditions on the ship it was likely that permission would have been given to members of the ship’s company to sleep on the upper deck, although he could not recall any circumstances where the crew was required to sleep there.

19.     In oral evidence Captain O’Sullivan said he had had no direct responsibility for the sick bay, where the applicant was based.  He stated that boarding parties were armed with sub-machine guns, but said that he could not recall anything untoward occurring as a result of the apprehension of Indonesian boats.  Under cross‑examination he agreed that all situations in which boats were apprehended were potentially dangerous.

20.     In an undated written statement (Exhibit R2 p7), Commander J. Yates, Royal Australian Navy, retired, stated that he served on HMAS Duchess as a communications officer and bridge watch keeper.  He said that he did not recall seeing anyone sleeping on the upper deck or being ordered to sleep there.  He stated that the applicant, being a sick berth attendant, would not have been a member of the boarding party and so would not have been required to sleep on the upper deck.  Commander Yates said that to his knowledge the ship did not make many intercepts, although he recalled that one boat collided with the ship and was towed back into harbour.

21.     In oral evidence Commander Yates said that sleeping on the upper deck would have been dangerous because those sleeping there might have blocked passageways in the darkness.  Under cross-examination he agreed that boarding parties were required to sleep on deck, in readiness to board suspicious vessels.  He also acknowledged that the applicant would have been the person to administer first aid to Indonesians if required and that all personnel on the ship were anxious and prepared for the worst when intercepting boats.

22.     In a written report dated 7 June 2004 (Exhibit R1), on behalf of Writeway Research Service Pty Ltd, Captain J. Hewett stated:

8.     …While the visits to Vietnam as an escort to HMAS SYDNEY were routine and uneventful, patrol duties in the Singapore and Malacca Straits and around Borneo tended to be lengthy and tedious.  The Commanding Officer of DUCHESS makes it clear in his Reports of Proceedings that wherever possible, opportunities were taken to allow some relaxation for the ship’s company, be it leave granted when in port or groups sent ashore for beach (banyan) parties during periods the ship was assigned to patrol duties.

…

17.    Much of the ship’s time in the Singapore and Malacca Straits was spent on patrol, especially at night.  Boats were intercepted and checked, always at a distance from the ship and often without actions other than an examination by searchlight taking place.  When necessary a boarding party was sent to check the boat but boats were not fired upon.

In a footnote at page 4 Captain Hewett stated that, on 25 June 1965, Midshipman M. Finch was killed as he was about to re-board HMAS Woolaston, after securing a tow rope to an intercepted sampan, when a booby trap aboard the sampan exploded.

23.     In a further written report dated 17 August 2004 (Exhibit R2) Captain Hewett stated (at p4):

10.    …None of the officers contacted can think of any operational reason why the LSBA [Leading Sick Bay Attendant] might have been required to sleep on the upper deck.  His normal sleeping quarters would have been no more than minutes away and the build up to any actual intercept would have allowed ample time for him to be summoned if required.  The frequency of intercepts was low, with at least some of the 50 nights spent on patrol where there was none.  Many of the intercepts that were made required no action from the Watch on Deck so there would have been no reason to even consider having the LSBA present.

…

18.    If personnel were permitted to sleep on the upper deck during patrols, the area would have been restricted to the Iron Deck.  This is not an ideal place to try to sleep because of the heat, noise and constant personnel movement associated with the Watch on Deck.

24.     In oral evidence Captain Hewett confirmed the contents of the reports.  Under cross-examination, he agreed that his reports were a collation of facts told to him by relevant naval or former naval personnel. 

25.     In a written statement dated 2 November 2004 (Exhibit R7) Dr K. Grainger, neurologist, said that he served on HMAS Duchess as medical officer in 1965/1966, and was responsible for the applicant’s conduct and performance in the medical sphere.  He said:

…

Patrol duties in the Malacca Strait were carried out at night under a “darkened ship” routine; that is with no external lights showing.  Besides adding interest to the period at sea it had no impact on the medical situation as there were no direct contacts with any other forces during that period.

…

During patrol duties on operational service there was no increase in illnesses or injuries and in particular any outside normal hours work...During a patrol period the conditions were generally relaxed, I recall going to action stations on two occasions; one when a floating palm tree was picked up by our radar and another when the wooden vessel, mentioned above, alluded our radar and hit the side of our boat causing no damage to the Duchess

26.     In oral evidence Dr Grainger said he served on HMAS Duchess for a period of 10 months, and apart from 2 periods of 1 week each when he took leave, he remained with the ship.  He said that he and the applicant were the only medical personnel on the ship.  He said that he was not aware of any instances of the ship’s personnel sleeping on the upper deck.  Under cross-examination Dr Grainger said that he did not have any recollection of the applicant sleeping with the boarding party on the upper deck, although he agreed that this might have occurred.

27.     In a written statement dated 23 February 2005 (Exhibit R8) Commodore I. James said that in 1965/1966 he was First Lieutenant or Executive Officer on board HMAS Duchess responsible for overall organisation.  He stated:

...

·   It would be most unusual for the LSBA to be required to sleep on deck in the circumstances suggested.  The LSBA would not have been a regular member of the boarding party required to go away in the boat at short notice.  If circumstances arose, for example, where the ship had information that a person in another vessel may need medical attention then the LSBA or the doctor might be sent in the boat with the boarding party but this would not require either of them to sleep on deck.  If needed, treatment of passengers or crew of an intercepted vessel would more likely be given onboard DUCHESS or in their own vessel after the initial boarding.

In oral evidence Commodore James said that it would be unlikely that the LSBA would sleep on the upper deck.  Under cross-examination he agreed that, on occasion, the boarding party and interpreter might have been ordered to sleep on the upper deck, although he acknowledged that he was not involved in the day-to‑day arrangements for the boarding party.  He acknowledged that interceptions were stressful events, particularly for the boarding party.

28.     In a written statement dated 23 February 2005 (Exhibit R9) Mr R. Pulling, welfare officer, Frankston RSL Sub-Branch Inc., said:

…it is now almost 3 years since the interview with Mr. Roberts but I can recall as I do with all interviews that I read the questions to the Veteran as they are written and write the answers as given, while the form is signed at the conclusion by the Veteran.

I don’t believe I was told the new amount was 50 cigarettes a day. This is what I would have written had I been told this figure.

I cannot recall a further statement several days later.  In any case the form would have been copied and posted to you [delegate of the Department of Veterans’ Affairs] by that time and he would have been told of this.

29.     In evidence to the VRB (Exhibit R6) the applicant said that he started smoking at the age of 18 when he joined the navy and within a couple of weeks was smoking 15 to 20 cigarettes per day, because everyone else was smoking that amount.  He said (page 10 of the transcript):

MRS FITZGERALD: And when did you go on the Duchess?

MR ROBERTS: In 1965 and I spent time in Malaya, Borneo, and I was - had to sleep on the upper deck on a stretcher in Malacca Straits - we were picking up Indonesian guerrillas going across to Borneo and it is not comfortable sleeping on a stretcher in a passage way and basically if we were lucky we probably got about four or five hours sleep a night, the rest of the time was just smoking and talking to each other.  But my job was to – it wasn’t too bad when we first started but four midshipmen were killed on a British minesweeper and from then on it was lighting the vehicle up with a light and saying, you know, you have 10 seconds to leave your vehicle.  We had an interpreter with a megaphone and we picked up the survivors when the boat was shot down – shot out of the water and my job was to fix up the ones that were hurt or wounded.

MRS FITZGERALD: But you would have done that – I mean that would not have been too stressful for you would it?

MR ROBERTS:  No, no I was used to doing it, yes. I mean we - were trained to do suturing and you know do everything you know.  It is marvellous what the medics on war ships can do.

MRS FITZGERALD: And what they…yes.  So basically you think that your increase in smoking was because you did not get enough sleep and you were uncomfortable smoking-sleeping.

MR ROBERTS:  Yes.  But also it was the in-thing.  You know, like it was…

MR FAGAN: The culture of the time.

MR ROBERTS: The culture, that is the word I am thinking of.

At page 12 of the transcript the applicant said his smoking habit increased to 50 cigarettes per day from his time on HMAS Duchess commencing in 1965.  At page 13 the applicant told the VRB that, after he left the navy in 1979, he joined a pharmaceutical company and was involved in speaking to doctors about drugs, and was exposed to medical journals.  He said that sort of woke me up to a lot of things, and that he then decreased his cigarette habit to about 20 a day.

CONSIDERATION OF THE ISSUES

30. Section 9(1) of the Act provides:

9(1)        Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

31. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:

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 [Statement of Principles] 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.  

32.     Ms Magee submitted that, on the material as a whole, there is a reasonable hypothesis connecting emphysema suffered by the applicant with the circumstances of his increased smoking, while sleeping on the upper deck of HMAS Duchess, during operational service in the Malaccan Straits during the relevant period.  Ms Magee stated that the applicant increased his level of smoking from 25 cigarettes per day to 50 per day.  She referred to the applicant’s evidence that he was required to sleep on the upper deck with the boarding party in full uniform prior to intercepts during night patrols.  She said that this led to a higher rate of smoking because of the stress involved because of fear for his safety, and the discomfort of the stretchers on the upper deck.  Ms Magee noted the evidence from former naval personnel that intercepts were potentially dangerous situations, and the applicant was made aware of an incident on a British mine sweeper, when it was believed that 3 British personnel were killed when a grenade was thrown onto their ship during a search of an intercepted vessel.

33.     Ms Magee referred to the applicant’s answers to questions in the smoking questionnaires, and said that underestimating levels of smoking and drinking was common in situations where giving accurate consumption details might be embarrassing.  She said that the applicant’s credibility had not been damaged during cross-examination and that there was no evidence to disprove the hypothesis.  

34.     Mr Herman noted that, in Captain Hewett’s first report (Exhibit R1), the death of the British sailor occurred in June 1965, and that Captain O’Sullivan stated in his evidence that procedures for intercepts had been modified to keep intercepted boats some distance from the ship.  Mr Herman said that these procedures would have been in place by the time of the applicant’s arrival in the Malacca Straits in August 1965.  He stated that the evidence from former officers of HMAS Duchess was consistent in suggesting that there was no reason for the applicant to be ordered to sleep on the upper deck, even when involved with the boarding party.  Mr Herman noted that Dr Grainger was on board the ship almost continuously during the relevant period, to render medical assistance as required, and therefore the applicant would have played a minor role in supporting the medical officer.

35.     Mr Herman referred to the applicant’s evidence to the VRB that administering first aid to injured persons on intercepted boats would not have been too stressful for him.  Mr Herman said that the applicant’s answers to questions in the smoking questionnaire were accurate, and there was no corroboration for the applicant’s claim that he sought to correct the answers given to the welfare officer of the RSL.  Mr Herman submitted that the applicant’s evidence contained many inconsistencies, and that, even if the applicant increased his smoking during the relevant period, there was no causal connection to the circumstances of his operational service.

36.     The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.

37.     The question of whether a condition exists is to be decided as a preliminary issue (Fogarty v Repatriation Commission (2003) 37 AAR 363), on the balance of probabilities, under s 120(4) of the Act. There was no dispute between the parties that the applicant suffered from emphysema.

38.     The Tribunal has considered each of the four steps from Deledio.  In respect of the first step, the Tribunal finds, after taking into account all relevant matters, that the material points to a hypothesis connecting the emphysema to the circumstances of the particular service rendered by the applicant.

39.     In respect of the second step from Deledio, there was no dispute between the parties and the Tribunal therefore finds that SoP N° 30 of 2004 concerning chronic bronchitis and emphysema (revoking SoP N° 73 of 1997) was in force and is relevant.  The relevant factor is:

5(a)smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;

Paragraph 8 of the SoP states:

“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 7300 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 7300 cigarettes, or 7.3kg of smoking tobacco by weight.  Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;

40.      In respect of the third step from Deledio, the Tribunal accepts that the applicant’s overall level of smoking satisfies the figure of 5 pack years specified in factor 5(a) of the SoP.  In these circumstances there is material or evidence pointing to the hypothesis being is a reasonable one, and it is consistent with the template in the SoP (Repatriation Commission v Hill (2002) 69 ALD 581). The Tribunal notes that in Kattenberg v Repatriation Commission (2002) 34 AAR 562 the Federal Court considered the situation in which the relevant SoP contained a factor requiring the smoking of 30 pack years of cigarettes. Emmett J stated (at 571):

…The tribunal construed the SoP as requiring that the smoking of at least 30 pack years of cigarettes be wholly attributable to the service.  The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service.  Accordingly, it fell into error in its application of SoP 130 of 1996.  

40.     In respect of the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact.  The Tribunal accepts the evidence from Captain O’Sullivan that few of the boats that were stopped were boarded, and from Commander Yates that the ship did not make many intercepts. However, in all the circumstances the Tribunal finds that the applicant slept on the upper deck on some occasions during the relevant period, when he was with the boarding party.

41.     The Tribunal takes into account that the applicant told the VRB that his increase in smoking while serving on HMAS Duchess was due to a lack of sleep, discomfort and the culture of smoking among naval personnel, and that administering first aid was not too stressful.  This is not consistent with his evidence to the Tribunal that he was anxious and feared for his safety.  He also described to the VRB that he treated survivors when boats were shot out of the water, although there is no evidence that this occurred at any time during intercepts by HMAS Duchess.     

42.     In respect of the level of smoking by the applicant, the Tribunal accepts his evidence that he was a non-smoker before enlisting in the navy and that shortly after enlistment his smoking was at the rate of about 20 cigarettes per day before operational service.  The Tribunal notes the evidence of Dr Manolitsas that the applicant has been a smoker of 20 cigarettes per day, with no reference to an increase to 50 per day.  Similarly, the Tribunal notes that the applicant completed the smoking questionnaire without reference to 50 per day, and in cross-examination he stated that all other questions were completed correctly.  Mr Pulling, in his written statement, confirmed that his practice was to read the questions to the veteran and write the answers before asking the veteran to sign the form as being correct.  The Tribunal takes into account that Mr Pulling did not recall any further statement a few days later, as claimed by the applicant, or other follow-up action by the applicant to correct any error.

43.     The Tribunal notes that, in his evidence to the VRB on 30 September 2003, the applicant mentioned decreasing his smoking to about 20 cigarettes per day in  1979 because of exposure to medical journals.  There is no reference to underestimating the number of cigarettes smoked as a result of embarrassment in front of doctors or pharmaceutical company employees, as he claimed in his oral evidence to the Tribunal.

44.     The Tribunal takes into account that the applicant was already smoking at the commencement of operational service, and the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service, rather than being wholly attributable to the service.  The Tribunal considered issues such as boredom, peer pressure and stress associated with operational service during the brief period of several weeks that comprised the relevant period.  The applicant played an important role as LSBA supporting the boarding party at times, but he was not involved directly in intercepts, particularly after the procedures changed following the death of the British sailor in June 1965.  There would always have been an element of danger in any night patrol or intercept, but in view of inconsistencies in his evidence to the Tribunal and his evidence to the VRB, and in view of the evidence from other witnesses, the Tribunal does not accept the applicant’s evidence that any danger, or other factor, was related to his level of smoking during the relevant period.

45.     The Tribunal is satisfied that, during the relevant period, the applicant spent most nights in his quarters or in the sick bay, where he seems to have slept appropriately.  Therefore, there was no causal connection between the level of smoking during the relevant period and a lack of sleep or discomfort experienced on the upper deck.

46.     The Tribunal agrees with the applicant that heavy smoking was common in the navy during the applicant’s period of service, and was part of the culture at the time.  Overall the Tribunal finds that the applicant was smoking about 20 to 25 cigarettes per day at the commencement of his service on board HMAS Duchess, and that the rate did not increase during the relevant period. 

47.     For these reasons, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between the applicant’s smoking and operational service during the relevant period, and the hypothesis cannot be sustained.  Therefore, the Tribunal finds that the fourth step is not satisfied, and the claim does not succeed.

DECISION

48.     The Tribunal affirms the decision under review.

I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Dates of hearing:  10 February 2005

31 March 2005

Date of decision:  21 April 2005
Counsel for applicant:                  Ms A. Magee
Solicitor for applicant:                  Williams Winter
Advocate for respondent:            Mr K. Herman
Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs