Ruth Carlson by her tutor Deborah Gili and Repatriation Commission (Veterans' entitlements)

[2018] AATA 3014

Ruth Carlson by her tutor Deborah Gili and Repatriation Commission (Veterans' entitlements) [2018] AATA 3014 (21 August 2018)

Division:VETERANS' APPEALS DIVISION

File Number:          2016/3116

Re:Ruth Carlson by her tutor Deborah Gili

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Rayment QC

Date:21 August 2018

Place:Sydney

The reviewable decision is set aside and the matter remitted to the respondent for assessment of the relevant entitlements.

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Deputy President Rayment QC

CATCHWORDS

VETERAN’S AFFAIRS – widow’s pension claim – whether the veteran’s death was a war-caused death – veteran’s chronic obstructive pulmonary disease was a cause of death – Deledio principles – application of Statement of Principles – decision under review is set aside and the matter remitted to the respondent for assessment of the relevant entitlements

LEGISLATION

Veterans' Entitlements Act 1986, ss 8, 196A, 196B, 119, 120, 120A

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82

SECONDARY MATERIALS

Statement of Principles concerning Chronic Obstructive Pulmonary Disease No. 37 of 2014

REASONS FOR DECISION

Deputy President Rayment QC

21 August 2018

FACTS

1. The applicant is the widow of the late John Carlson who served during World War II in New Guinea. He served in the Australian Infantry Force. He enlisted on 31 August 1942 and from 25 May 1944 until 24 November 1945, he was in New Guinea as part of the Eighth Battalion. The battalion’s contact with the Japanese commenced in April 1945, and continued for some months in that year.

2. Mrs Carlson is aged and in care and I have appointed her daughter Deborah Gwendolyn Gili as her tutor.

3. A report from Major Ian Hawke RAINF Retd, RFD, Military History Researcher, describes the exposure to stress which the deceased veteran is likely to have encountered overseas.

4. He commenced smoking during his war service, including while he was in New Guinea.

5. Major Hawke records:

   10.Cigarettes were readily available to all servicemen serving overseas. Gratis issues of cigarettes, tobacco and smoking materials were issued to Australian servicemen in operational areas. The Australian Comforts Fund provided a regular supply, and even provided servicemen proceeding overseas with pre-embarkation kits which included cigarettes. Smoking was socially acceptable in the civil community and in the armed forces for relaxation and, in the military environment, accepted as a method of decreasing, or coping with, stress.

   11. The Canteens Service was not a profit driven organisation therefore the entire range of commodities sold were significantly cheaper. The Canteens Service was staffed by military personnel, operated on Commonwealth property, payed no rental for premises or warehousing, with no utility bills, its stocks of goods were transported by road, rail and sea under military movement arrangements at no cost to the Canteens Service. This resulted in much a cheaper purchase price for all goods across the entire inventory (beer, soft drinks, tobacco, cigarettes, smoking materials including papers and lighters, clothing, stationery, confectionery etc).

   12. “Smokos" were part of the daily Australian routine, both in the civilian and service communities, and in the armed services free cigarettes were included in the contents of the SW Pacific ration packs. Indeed in 1945 approximately 72% of all Australian men smoked - tobacco was available and its use was common.

   13. The publication ‘WE WERE THERE: Australian soldiers of World War II tell their Stories' contains some data on the prevalence of smoking in the Army during this period. Based on responses to a questionnaire that was sent to some 3,700 Australian WW2 veterans, the book states that 43% of the men were non-smokers when they joined the Army, 31% were light smokers, 23% were moderate smokers and only 3% were heavy smokers. Following the war the number of non-smokers numbered 28% (down from 43%), and that of light smokers fell to 19% (down from 31%). The percentages for moderate smokers rose to 34% (up from 23%) and the percentage for heavy smokers rose to 19% (up from 3%).The above information shows that the rate of smoking amongst WW2 veterans did increase markedly which can be linked to a combination of factors such as the direct experience of ‘stressful or hazardous’ circumstances, boredom, the availability of tobacco products and the acceptance of the culture of smoking in the armed forces and the Australian community generally’.

   14. There would have been minimal restrictions on smoking except in hazardous environments such as fuel storage, refuelling activities and ammunition storage and handling - but such restrictions were based on safety and not public health. Safety regulations usually prohibited smoking in sleeping areas, but in practice these latter restrictions were ignored. These provisions related more to base areas than operational zones. The public health hazards of smoking were not widely recognised for decades.

   15. The other restriction on smoking was for tactical reasons. Smoking was prohibited during the hours of darkness whilst in the vicinity of the enemy. The flare of a match or cigarette lighter, or even the glow of a cigarette, could give away your position to an observant enemy. This applies particularly to front line infantry such as the Veteran.

6. The late veteran, in a form filed with the department in 2013, spoke of “firing of service weapons, artillery, bombs and explosions during war service in SW Pacific area”.

7. In a statement to the Department of Veterans’ Affairs of 27 July 2013, the applicant stated that the veteran smoked from joining service in 1942 until 1950. She said that the veteran smoked on a regular basis as “the done thing”. Mrs Carlson was not sure how many cigarettes a day her husband smoked, as he gave up smoking to go out with her in 1950.

8. Ms Gili gave evidence before me, which I accept. She said that her late father did not talk about what he did and saw during the war, which one understands not to be uncommon amongst ex-servicemen.

9. She said that her father said that people thought you were odd if you did not smoke during the war. I gather that he was asserting that peer pressure encouraged him to start smoking in the war years. He told her that his smoking was constant, from which I infer that he smoked at least a packet of 20 a day, for the eight year period when he was a smoker.

10. Towards the end of his life, he told his family that he had emphysema, and made regular use of Ventolin in a puffer, and used oxygen at hospital and at home, arranged by the Department of Veterans’ Affairs. He was short of breath, and experienced difficulty not only in walking up inclines but also on level surfaces. He coughed a lot and needed to have his lungs drained at hospital. On his last trip to the hospital before his death on 12 May 2013, the late veteran said to Ms Gili’s husband, “My lungs are done”.

11. The death certificate recording his death at Norwest Private Hospital, Bella Vista, attributed the medical cause of death as: (1) End stage congestive heart failure; and (2) Type II diabetes, transient ischemic attack. While neither of the nominated causes of death related to lung disease, there seems to be no doubt that the late veteran had such a complaint, which continued to affect him as at the date of his death.

12. Throughout the period from 2000 onwards, the late veteran had symptoms of cardiac failure, and the evidence before me accepted that cardiac failure was a cause of death, probably the predominant cause. Having regard to the way this claim was put by the applicant, what is important is to note what the medical records tendered before me show concerning his lung condition:

    (a)In 2002, he was diagnosed with COAD (chronic obstructive airways disease).

    (b)In 2007, spirometry showed a reduction in the FEV1/FVC ratio. After nebulised bronchodilators, there was no significant change to the any spirometric parameter. The respiratory report observed: “These results demonstrate a severe obstructive ventilator defect without functionally significant reversibility noted at the time of testing”. Dr Crawford, a respiratory physician commented, amongst other things that, “Spirometry shows moderate airflow obstruction with a FEV1/FVC of 1.0/1.85L (49% & 67% of predicted).”

    (c)In January 2008, Dr Crawford noted that a spirometry showed a reduction compared with previous figures with a FEV1/FVC of 0.69/1.5 L increasing to 0.80/1.7L post-Ventolin.

    (d)In July 2009, Dr Crawford reported that spirometry was essentially unchanged with a FEV1/FVC of 0.85/1.9L with no change in post-Ventolin (34% and 65% of predicted).

    (e)In August 2010, Dr Crawford reported similar spirometry with a FEV1/FVC of 0.75/1.75L (34% and 64% of predicted).

    (f)In February 2011, he reported spirometry unchanged showing severe airflow obstruction.

    (g)In March 2012, he was seen by Dr Crawford who measured his spirometry, showing it to be “substantially unchanged showing severe airflow obstruction with a FEV/FVC of 0.75/1.75L (32% and 64% of predicted)” he said that the deceased had “severe airways disease” without evidence of significant deterioration.

    (h)In August 2012, a left pleural effusion was drained. In September 2012, an X-Ray investigation showed that it had recurred as a moderate left pleural effusion, larger than at the post drainage chest X-Ray conducted at the beginning of September, and that there were COPD changes in the rest of the lungs.

    (i)In December 2012, he again reported that spirometry was unchanged with a FEV1/FVC of 0.71/0.56L (30% & 64% of predicted).

    (j)In 2015 (after his death), Dr Crawford wrote to Legacy stating that the late veteran had emphysema with severe obstructive airways disease, which was “almost certainly the consequence of his previous cigarette smoking”. Dr Crawford also said that his heart failure was probably not consequential on his known lung disease, and that he had “significant coronary artery disease which was the likely cause of his heart failure.”

    (k)As Associate Professor Haber pointed out, his medical records, from time to time after his airways disease was diagnosed in 2002, show a deterioration in his spirometry prior to his death, indicating that his condition worsened up until his death in 2013, which tends to be confirmed by the lay reports of his daughter which I have summarised in [10] above.

13. I turn to the medical evidence called before me. I heard from Associate Professor Haber, a consultant general physician with a special interest in cardiology and diagnostic medicine, and Professor O’Rourke, who specialises in cardiovascular medicine and hypertension. They both provided reports and gave evidence together.

14. Neither professor treated or examined the late veteran but each read such medical records as are available.

15. In the opinion of Associate Professor Haber, the late veteran had long standing chronic obstructive airways disease, diagnosed in 2002, and his smoking habit may have caused it, or at least contributed to it. This was, in his opinion, one of the medical causes of his death, together with longstanding cardiac failure.

16. Professor O’Rourke, on the other hand, stated that the veteran’s degree of chronic obstructive airways disease was mild and clinically irrelevant, compared with the severity of his cardiac disease, which together with ageing, he attributed the major medical cause of death. One question which arises about evidence given in those terms is whether it is consistent with one of the Statements of Principles published under s 196A of the Veterans Entitlement Act, discussed below.

17. Associate Professor Haber stated his opinion that he had no doubt that the COPD which the late veteran suffered from was a medical cause of death, that is to say a contributing or underlying medical cause of death.

18. Professor O’Rourke would not accept that fact. He qualified his evidence by saying that he was not a respiratory physician. It also appeared that he had not seen or did not recollect seeing a letter written in 2015 (that is, after the veteran’s death) by Dr Crawford, who was a respiratory physician and had treated the deceased.

    LEGISLATIVE BACKGROUND

19. It will be useful before discussing further the evidence led from the professors, to review the statutory and related instruments which form the background to the application before me. In my opinion, what is referred to below is consistent with what was decided by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.

20. The ultimate questions arising in a case where a claim is made under the Veterans’ Entitlement Act arising from the death of a veteran are:

    (a)Did the veteran die from a particular relevant cause or causes?

    (b)Was one or more of those causes related to war service?

    (c)Are the various provisions of s 8 of the Veterans’ Entitlements Act 1986 satisfied?

21. Certain statutory dictates need to be borne in mind in deciding the answer to those questions. In the first place, s 120 of the Act needs to be considered. It provides as follows:

    120  Standard of proof

    (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.

    Note:         This subsection is affected by section 120A.

    (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; or

    (c)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 British nuclear test defence 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.

    Note 1:     For member of a Peacekeeping Force, peacekeeping service, member of the Forces, hazardous service and British nuclear test defence service see subsection 5Q(1A).

    Note 2:      This subsection is affected by section 120A.

    (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.

    Note:         This subsection is affected by section 120A.

    (4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

    Note:         This subsection is affected by section 120B.

    (5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:

    (a)an injury suffered by a person is a war‑caused injury or a defence‑caused injury;

    (b)a disease contracted by a person is a war‑caused disease or a defence‑caused disease;

    (c)the death of a person is war‑caused or defence‑caused; or

    (d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

    (6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

    (a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

    (b)the Commonwealth, the Department or any other person in relation to such a claim or application;

    any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

    (7) In this section:

    hazardous service means service in the Defence Force, before the MRCA commencement date, that is of a kind determined in writing by the Minister administering section 1 of the Defence Act 1903 to be hazardous service for the purposes of this section.

22. Question (b) is to be answered with s 120(1) in mind. In a sense, it reverses the question which usually arises, and requires the Commission, and therefore the Tribunal, to answer the question in favour of the veteran unless satisfied beyond reasonable doubt that a cause of death was not related to war service.

23. Question (a) attracts s 120(4). It is a matter of fact on which the Commission and the Tribunal must be satisfied. Section 119 stipulates that the decision-maker will, amongst other things:

    (g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

    (h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

    (i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

    (ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.

    Their effect has been considered in several cases to which it is not presently necessary to refer.

24. Section 120(3) speaks of a “reasonable hypothesis”. The material before the Commission or Tribunal must point to or raise the reasonable hypothesis, which will then, unless s 120(3) itself means that it should be ruled out, fall for consideration under s 120(1), that is, to answer question (b).

25. Section 120(3) is significantly affected by the provisions of s 120A(3) which relates to action taken by the Repatriation Medical Authority under s 196A of the Act to promulgate a Statement of Principles. Section 120A(3) provides that:

    (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.

    Note:        See subsection (4) about the application of this subsection.

1. Once determined by the Repatriation Medical Authority or by the Review Council, a Statement of Principles is a legislative instrument.

2. A Statement of Principles exists in respect of Chronic Obstructive Pulmonary Disease, No. 37 of 2014 as amended made under s 196B of the Act, and included in the Federal register of Legislative Instruments. That expression covers a family of lung diseases usually characterised clinically by chronic and persistent cough, sputum production or dyspnoea, and physiologically by progressive airflow limitation that is poorly reversible. The family includes chronic bronchitis, emphysema and chronic airflow limitation.

3. By clause 4, it is declared that:

   4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that chronic obstructive pulmonary disease and death from chronic obstructive pulmonary disease can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).

   A determination that a disease “can be related” is a preliminary matter to be determined before the Commission or Tribunal answers question (a) which I have set out in [20] above. The determination that a disease “can be related” is made by the Repatriation Medical Authority and binds the Commission and the Tribunal under s 120A(3) of the Act, so long as at least one factor is present. Then the hypothesis is “upheld” and also “reasonable”.

4. By clause 6(a), one factor which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting death from chronic obstructive pulmonary disease with the circumstances of a person’s relevant service is:

   6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic obstructive pulmonary disease or death from chronic obstructive pulmonary disease with the circumstances of a person’s relevant service is:

   (a)smoking at least five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic obstructive pulmonary disease; or

5. By clause 9, “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 7.3 kilograms of smoking tobacco by weight.  Tobacco products mean cigarettes, pipe tobacco or cigars, smoked alone or in any combination;

6. The finding I have made in [9] above satisfies that definition and the factor in clause 6(a).

   CONSIDERATION

7. Returning to the questions I have summarised in [20] above, the outstanding matter to be determined is whether chronic obstructive pulmonary disease was one of the causes which contributed to the death of the late veteran. If so, I would not be satisfied that the disease was not war-caused, and would resolve the issue in s 120(1) of the Act in favour of the applicant.

8. A cause may be the sole cause of death, or one of several contributing factors to which the death can be attributed.

9. As I have said, the evidence of Associate Professor Haber summarised at [17] above was expressed unequivocally. In cross-examination, he stated that the deceased had both heart failure and lung failure, and that while the proportionate contribution of each was debateable, he obviously died from both. Professor O’Rourke did not, perhaps, ultimately rule out chronic obstructive pulmonary disease as a minor cause of death but attributed significantly greater weight to the cardiac failure. When asked late in the evidence whether COPD did not contribute to the death, he answered, “Not sufficient to put it on the death certificate I would have thought”.

10. Professor O’Rourke also had difficulty with that part of the Statement of Principles which rested on the factor described in clause 6(a), in particular because of the long period of time between the last smoking of the deceased and his death.

11. If that doubt is the source, or part of the source of his disagreement with Professor Haber about the role played by lung failure, then, with respect, I am inclined to discount his evidence, because the question I have isolated above (in [20] at (a)), is not whether smoking caused the death but rather, whether chronic obstructive pulmonary disease caused the death.

12. Having listened to both experts, I am sufficiently persuaded by Associate Professor Haber’s exposition of his reasoning to treat his evidence as more reliable.

    CONCLUSION

13. I therefore answer each of the ultimate questions I have identified in [20] above in favour of the applicant. The reviewable decision will be set aside and the matter remitted to the respondent for assessment of the relevant entitlements.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Rayment QC

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Associate

Dated: 21 August 2018

Date(s) of hearing:	25-26 July 2018
Counsel for the Applicant:	Mr T Saunders
Solicitors for the Respondent:	Mr N Nguyen, Sparke Helmore Lawyers