ROBERTS-HAY and REPATRIATION COMMISSION

[2010] AATA 224

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 224

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3500

VETERANS' APPEALS DIVISION		)
Re		PATRICIA ROBERTS-HAY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date30 March 2010

PlaceBrisbane 

Decision The Tribunal affirms the decision under review.

.....................[Sgd].........................

Senior Member

CATCHWORDS

VETERANS' AFFAIRS – Veterans’ entitlements – disability pension – metastatic renal cell carcinoma – smoking prior to service – causation – whether applicant’s conditions are defence-caused – deceased’s conditions not defence-caused – decision affirmed

Veterans’ Entitlements Act 1986 (Cth), ss 68, 70

REASONS FOR DECISION

30 March 2010 Senior Member Bernard J McCabe         

1.Patricia Roberts-Hay, the applicant, is the wife of the late veteran, Oliver James Hay.  Mr Oliver was a member of the Australian Defence Forces from 20 February 1968 to 26 February 1989.  He died of metastatic renal cell carcinoma and other complications on 22 December 2007. He was an extremely heavy smoker for the majority of his adult life. The Applicant contends the death of Mr Hay was related to his service and therefore seeks compensation under the Veterans’ Entitlements Act 1986 (“the Act”).

2.The Repatriation Commission, the respondent, does not dispute that Mr Oliver died from metastatic renal cell carcinoma, or that his smoking may have contributed to the onset of the condition. But the respondent argues Mr Oliver’s long-standing smoking habit was already established by 1968, when he enlisted, or by 1972, when he commenced defence service. The respondent says the applicant is therefore unable to satisfy the requirements of the Statement of Principles concerning Adenocarcinoma of the Kidney (Instrument Number 88 of 2001) (“the SoP”). In those circumstances, the respondent says that the metastatic renal cell carcinoma which caused the deceased’s death was not defence-caused within the meaning of s 70 of the Act.

3.The decision under review must be affirmed.  I explain my reasons below.

factual background

4.At the hearing, the applicant called a number of witnesses, including:

(a)Mrs Patricia Roberts-Hay (in person);

(b)Lieutenant Colonel (retired) Geof Barlow (by phone);

(c)Mr Rick Hodell (by phone);

(d)Mr John D Heffernan (in person); and

(e)Mr Cyril Vincent Hay (in person).

5.Oliver Hay enlisted in the Australian Defence Forces on 20 February 1968 when he was about 25. He left the service on 26 February 1989. He died on 22 December 2007. For the purposes of this matter, s 68(1) of the Act stipulates that the relevant eligible period of service is from 7 December 1972 to 26 February 1989.

6.Mr Cyril Hay, the veteran’s father, said the veteran worked as a tyre re-treader before he enlisted. The veteran left home when he was 18 and married his first wife. He lived with her and their children at Inala.

7.Mr Hay Snr said the veteran was originally a puff and blow smoker when younger but changed his smoking patterns significantly over the next 10 years when he became a very heavy chain smoker.  Mr Hay Snr indicated that his son was initially smoking about 10 cigarettes but this steadily increased during his twenties.

8.Mr Hay Snr explained that he did not see his son very often in the first five years of military service between 1968 and 1973 due to travel commitments.  Mr Hay Snr began visiting the veteran and his family on a more regular basis after 1973.  He suggested he would see the veteran about every 2 or 3 weeks during this period. Mr Hay Snr said his son was already a heavy smoker by that time. Mr Hay Snr indicated that it was common for the veteran to light up a new cigarette prior to putting out the cigarette he was smoking.  Mr Hay Snr said he would often counsel the veteran on his smoking habits. This advice was not accepted.

9.The document entitled Claimant Report – Cigarette Smoking (T19) suggests the veteran was already a very heavy smoker when he enlisted in the services. The veteran said he smoked 4 cigarettes a day from 1959 to 1961, 15 cigarettes a day from 1961 to 1967 and then 50 cigarettes a day from 1968 to 2005. That evidence is consistent with the evidence of Mr Hay Snr.

10.The applicant met Mr Hay on 10 June 1978, some ten years after the deceased commenced service. On 28 July 1978, the veteran and the applicant commenced living together.  The applicant explained in her oral and written evidence that the veteran was smoking 3 packets of cigarettes a day that she would purchase when they moved in with each other. This evidence is consistent with the estimates referred to in the Claimant Report – Cigarette Smoking.

11.The applicant suggested it was likely the veteran bought more cigarettes apart from the ones she purchased for him. If so, the veteran may have been smoking even more than 50 or 60 cigarettes a day. She added that the veteran would smoke consistently when he came home at night.  This was consistent with the evidence of Mr Cyril Hay.

12.The applicant said the veteran was experiencing stress at work that caused him to increase his smoking. She said the veteran’s smoking increased from 60 cigarettes a day when they met to 80 cigarettes a day while he was working at Logistic Command in Melbourne during 1981. A letter of the applicant to the Department of Veterans Affairs dated 4 June 2008 at T65 suggests that Mr Hay was smoking 100 cigarettes a day from the time the veteran left the Australian Defence Forces in 1989 until 2005. 

13.The applicant explained in her evidence that the deceased was managing staff while he was working in logistics in the Army. He also had to make sense of the disorganised state of the supply system. That caused him additional stress which caused him to smoke more at the time.  

14.Messrs Barlow, Hodell and Heffernan said they served with the veteran in the late 1970s when he was at 11^th Supply Company in Brisbane.  Mr Barlow also worked with Mr Hay when he was in Melbourne at headquarters. Messrs Barlow, Hodell and Heffernan all indicated that while they did not work in the same office as the veteran, he was always smoking whenever they saw him.

15.Mr Barlow said he would visit the veteran about 20 times a day when they worked together and he always had a cigarette close at hand.  Mr Barlow also said the veteran appeared to be chain smoking. That was essentially the same evidence given by Mr Cyril Hay when he saw his son in 1973.

16.Mr Hodell and Mr Heffernan said they worked with the deceased for 4 years and 3 years respectively when in Brisbane.  They both said the deceased was a chain smoker.  Both witnesses say they told the veteran he was smoking too much but this did not appear to change his habits.

17.Mr Heffernan said he sometimes went fishing with Mr Hay on the weekends. Mr Hay did not smoke as heavily on these outings, although it was acknowledged that there was fuel on board the vessel and this would obviously be a significant safety hazard.

18.After leaving the service, the veteran worked as a security officer for Wormald and as a console operator at a service station. He also did some work for the Bribie Island RSL. I accept the evidence that the veteran continued to smoke heavily, although any stress arising out of his service had ceased by that point.

19.Mr Hodell recalled visiting the veteran while he was working at the service station. Mr Hodell said Mr Hay would leave the console for a break and smoke 2 to 3 cigarettes in a 10 to 15 minute period while talking with Mr Hodell.

20.It would appear that the deceased stopped smoking in 2005 at the insistence of the applicant. She says they could not continue to finance Mr Hay’s smoking habit.

Diagnosis

21.The first task is to determine how Mr Oliver Hay died.  Once the condition or conditions from which he suffered have been identified, the Tribunal can go on and assess whether there is any connection between the circumstances of his service and those conditions.

22.There is no dispute between the parties that the deceased died of metastatic renal cell carcinoma and other complications.

Causation

23.The next task is to determine whether a causal link can be established between the circumstances of the veteran’s defence service and the condition that subsequently took his life. In making that assessment, I must have regard to the SoP dealing with adenocarcinoma of the kidney. Factor 5(a) of the SoP refers to an individual smoking at least 20 pack years of cigarettes before the clinical onset of the condition. But it is not enough to establish the individual smoked the required amount of cigarettes during the course of his eligible service. There must be some connection with that service before an entitlement to compensation arises. That is the challenge in this case: the respondent says, in effect, that the applicant smoked heavily during the course of his service because he had always been a heavy smoker. His service did not bring on or exacerbate his smoking habit.

24.Most of the applicant’s evidence focused on a relatively brief period between 1978 and 1982. I have no doubt from that evidence that the veteran was experiencing stress and that he drew some comfort from smoking heavily.

25.However, it is clear on the evidence from both the Claimant Report – Cigarette Smoking at T19 and the evidence of Mr Cyril Hay that the veteran was a heavy smoker long before this period. Indeed, I am satisfied from the evidence that the veteran was smoking at least 50 cigarettes a day by the time he enlisted in 1968 or soon afterwards. The respondent calculated that Mr Hay would have smoked two or even three times the amount of cigarettes contemplated in the SoP before he commenced eligible service. His habit was already entrenched by that point. I accept his intake of cigarettes may have fluctuated over the years and may have increased during periods of stress, but his smoking pattern was set years before.  

26.To put the matter simply, Mr Hay’s cancer may have been caused by smoking, but his smoking was not caused by or connected with his service. He smoked during eligible service because he was already a heavy smoker. In those circumstances, I am satisfied the material does not point to a connection between the circumstances of service and the claimed condition.

Conclusion

27.The decision under review must be affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ....................[Sgd].......................................................
  Patrick MacDonald

Date of Hearing  3 February 2010 
Date of Decision  30 March 2010
Advocate for the Applicant       Ms H Smith

Advocate for the Respondent   Mr B Williams