Sach and Repatriation Commission - [2000] AATA 1064

DECISION AND REASONS FOR DECISION [2000] AATA 1064

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N98/1382
VETERANS'     APPEALS        DIVISION)
           Re:     VIOLET SACH
  Applicant
           And     REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       Mrs     H.E.    Hallowes, Senior     Member Dr    J.R.     Vallentine,     Member
Date:             4 December 2000
Place:            Sydney

Decision:The decision under review is set aside and the Tribunal substitutes a decision that the death of the veteran was war-caused and the applicant is entitled to be paid pension under the Veterans' Entitlements Act 1986.

(sgd) H.E. Hallowes
Senior Member
VETERANS' AFFAIRS — widow's pension — whether veteran's death war-caused — operational service — malignant carcinoid tumour of the colon — whether Statement of Principles ("SoPs") concerning disease —which SoPs should be applied — smoking and drinking habits — whether connected with war service
Veterans' Entitlements Act 1986 ss.6, 8, 120, 120A, 196B
Statement of Principles concerning Malignant Neoplasm of the Colon

Instrument Nº 37 of 1995
Instrument Nº 23 of 1996
Instrument Nº 5 of 1998

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Ogston v Repatriation Commission (1999) 29 AAR 89
Repatriation Commission v Keeley (2000) 31 AAR 150
Repatriation Commission v Deledio (1998) 49 ALD 193
Gartrell v Repatriation Commission (2000) FCA 1228 (decided 9 August 2000)

REASONS FOR DECISION

4 December 2000 Mrs H.E. Hallowes, Senior Member

Dr J.R. Vallentine, Member

This is a review of a decision of the Repatriation Commission made on 1 February 1996, which was affirmed by the Veterans' Review Board ("the VRB") on 20 July 1998, that the death of the veteran, Mr R. Sach ("the veteran") was not war-caused.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), together with further material lodged by both parties at the hearing.
The documents disclose that Mrs Sach lodged a claim for widow's pension under section 8 of the Veterans' Entitlements Act 1986 ("the Act") on 31 July 1995. She provided details of the veteran's service history. The veteran died on 23 January 1985. The causes of death listed on the death certificate were
. . .
(a)Peritonitis 2 days
(b)Perforated caecum 2 days
(c)Primary hepatoma 1 year
. . .

The veteran's general practitioner, who certified his death, Dr R. Tinning, advised on 20 July 1984 that the veteran was suffering from "carcinoma of liver".

In rejecting Mrs Sach's claim for widow's pension the delegate of the Repatriation Commission advised:
. . . Our records show the cause of death as carcinoid syndrome.
. . .
In this case the RMA has not yet issued a Statement of Principles for Carcinoid syndrome. . . .
Medical advice is that the cause of carcinoid syndrome is unknown. It is not clear where the carcinoid tumour originated but they can arise from the appendix or the ileum; the cause of malignant tumours in these areas is also unknown. Exposure to coal dust is not a known cause of these tumours.
. . .
When the Tribunal hearing commenced Mrs Sach was represented by Mr A. Hill, of counsel. The Repatriation Commission was represented by Ms M. Doggett, an advocate with the Department of Veterans' Affairs. An issue arose on the first day of hearing as to whether the veteran had operational service under section 6 of the Act, but on the second day of hearing when Mr M. Vincent of counsel appeared for Mrs Sach and, following production of further material with respect to the veteran's war service, it was conceded by the respondent that the veteran satisfied the provisions of section 6. He had enlisted for service on 11 January 1945 and he was demobilised on 10 January 1947.
It was not in dispute between the parties that the veteran's disease was malignant carcinoid tumour and it was also agreed, the weight of the evidence on the balance of probabilities was that the site of the tumour was the caecum. Pursuant to the relevant ICD code, the colon includes the caecum and the appendix, which had both been considered as possible sites of the original tumour.
It is necessary at this stage to refer to the Statements of Principles ("SoPs") determined by the Repatriation Medical Authority ("RMA") under subsection 196B(2) of the Act. It was Mr Vincent's contention that Mrs Sach could ask the Tribunal to determine the matter under the SoPs most beneficial to her from the date when she lodged her claim for widow's pension on 31 July 1995, rather than being bound by the SoPs in effect, if there was one, at the date the Repatriation Commission made its determination, 1 February 1996. When the delegate of the Repatriation Commission and the VRB made their decisions, they noted that there was no SoPs with respect to carcinoid syndrome. Both the delegate of the Repatriation Commission and the VRB were satisfied that the veteran did not have operational service and therefore considered the matter under subsection 120(4) of the Act. As indicated above, it is now known that the veteran did have operational service. When the delegate of the Repatriation Commission made his decision, Instrument Nº 23 of 1996 was in force having revoked Instrument Nº 37 of 1995 on 24 January 1996. That Instrument was later amended by Instrument Nº 5 of 1998. The reason for the parties different contentions arises out of a change in the meaning of "malignant neoplasm of the colon" in Instrument Nº 23 of 1996 from that provided under Instrument Nº 37 of 1995.
Mr Vincent put to the Tribunal on the second day of hearing that Mrs Sach had an accrued right to have her matter determined under the SoPs in effect at the date she lodged her claim, rather than the SoPs in effect at the date the Repatriation Commission determined the matter, if the disease from which the veteran suffered falls under either of those SoPs, as it was his contention the SoPs in effect at the date of claim was more beneficial to Mrs Sach's case than the SoPs in effect when the Repatriation Commission determined the matter. Mr Vincent put to the Tribunal, in effect, that an applicant can "SoPs shop" and also, if a later SoPs is more beneficial to their case, they can waive their right to have the matter determined under the SoPs in effect when they lodged their claim.
The parties were not in agreement as to whether there was in force a SoPs such that subsection 120A(3) of the Act applied, subsections 120A(3) and (4) providing:
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) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.

If no SoPs was in force concerning the veteran's disease, the matter should be determined applying the principles enunciated by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.

It was Ms Doggett's closing submission that the Tribunal should determine the matter under Instrument Nº 23 of 1996 as amended by Instrument Nº 5 of 1998 applying what was said by the Federal Court in Ogston v Repatriation Commission (1999) 29 AAR 89. Ms Doggett said:
. . . The respondent's position is that there was no statement of principle in force at the time of the Repatriation Commission decision which answered the claim being made by the applicant therefore, under Ogston when it was amended and we can see that the definition in 5 of 98 does include the claim that's been made by the applicant, then that statement of principle is the one to be applied.
Of course, because that's an amending statement of principle, the whole of the document needs to be considered which is how we include 23 of 1996. We maintain quite strongly that the instrument 37 of 95 cannot be applied by the Tribunal . . .
Not only did Mr Vincent put to the Tribunal that an applicant can SoPs shop, he also put to the Tribunal that an applicant can pick and choose between the various factors under the various SoPs to find a factor more beneficial to the applicant's case. In putting to the Tribunal that there was a reasonable hypothesis connecting the veteran's death with the circumstances of his war service Mr Vincent relied on factor 1(a) of Instrument Nº 37 of 1995, which provides:
1.Being of the view that there is sound medical-scientific evidence that indicates that malignant neoplasm of the colon and death from malignant neoplasm of the colon can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colon or death from malignant neoplasm of the colon with the circumstances of that service, are:
(a)smoking cigarettes or other tobacco products for at least 10 pack-years, all or part of which were smoked 20 years or more before the clinical onset of malignant neoplasm of the colon; or
. . .

However, when Instrument Nº 37 of 1995 was revoked under Instrument Nº 23 of 1996 the factor with respect to smoking which may connect the veteran's death with the circumstances of his war service had changed and Mr Vincent relied on both factors 5(b) and 5(c) of Instrument Nº 23 of 1996 with respect to the veteran's smoking habit and consumption of alcohol, factors 5(b) and 5(c) providing:

5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colon or death from malignant neoplasm of the colon with the circumstances of a person's relevant service are:

. . .
(b)smoking cigarettes or other tobacco products, where the equivalent of at least 15 pack years were consumed 30 years or more before the clinical onset of malignant neoplasm of the colon; or
(c)drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the colon; or
. . .

Because of the changes to the definitions of malignant neoplasm of the colon in SoPs over time, it was Mr Vincent's contention that, when Instrument Nº 37 of 1995 and Instrument Nº 5 of 1998 were in force, the veteran's condition fell under the SoPs but, when Instrument Nº 23 of 1996 was in effect, having revoked Instrument Nº 37 of 1995, the veteran's condition was not covered by a SoPs until Instrument Nº 5 of 1998 amended the meaning of "malignant neoplasm of the colon" to what it had been before Instrument Nº 23 of 1996 came into effect.
Instrument Nº 5 of 1998, which was gazetted on 28 January 1998, amended Instrument Nº 23 of 1996 by omitting the definition of "malignant neoplasm of the colon" in Instrument Nº 23 of 1996:
. . .
(b) For the purposes of this Statement of Principles, "malignant neoplasm of the colon" means a primary malignant neoplasm of the mucosa of colon, which is part of the large intestine which extends from the caecum to the rectosignoid junction, attracting ICD code 153. (emphasis added)

and replacing it with the definition originally pertaining in the revoked SoPs Instrument Nº 37 of 1995 as follows:

(b) For the purposes of this Statement of Principles, 'malignant neoplasm of the colon' means a primary malignant neoplasm arising from the cells of the colon, attracting ICD code 153, but excluding soft tissue sarcoma, non-Hodgkin's lymphoma and Hodgkin's disease. The colon is defined as the part of the large intestine which extends from the caecum, including the ileocaecal junction, to the rectosigmoid junction. (emphasis added)

Mr Vincent referred the Tribunal to Repatriation Commission v Keeley (2000) 31 AAR 150 Lee and Cooper JJ saying, at paragraphs 35 and 36, page 163:
When the respondent lodged a claim for a pension under the Act, the respondent obtained a right to have that claim determined under the Act according to law . . .
If the material relevant to the claim satisfied the requirements of the Act, the Commonwealth was liable under s 13 to pay a pension to the respondent and the Commission was bound to determine the claim accordingly. . . .

And further at page 164:

The question is whether a determination made by the Authority under s 196B "affects" any right that has accrued under the Act. . . .

The Full Federal Court found that the respondent's right, that accrued upon lodging her claim, to have it determined under the Act by the Commission was affected. However, that circumstance does not apply after a claim has been determined. It is presumed that accrued rights are determined under the law as it stands when the right accrues. In Keeley the matter was to be determined under the SoPs in effect when the Repatriation Commission made its decision. Lee and Cooper JJ went on to say, at page 165:

. . . With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. . . . (emphasis added)

However, what did Parliament intend when a SoPs more beneficial to the applicant replaces a SoPs after the decision has been made by the Repatriation Commission but before review? What is the claimant's right in those circumstances?

Ms Doggett contended that an applicant cannot SoPs shop, picking and choosing factors most beneficial to their circumstances. She suggested it would lead to a "farcical" situation. In those circumstances a decision-maker would have to contact the parties and ask which SoPs was considered to be more beneficial. In Ogsten's case no SoPs had been determined when the applicant lodged her claim. One was in force when the claim was determined. There was no issue with respect to the revocation of any SoPs. The Full Federal Court said that the Tribunal had been plainly "correct" in rejecting the applicant's contention that she had a right to have the Tribunal determine her claim according to the law as it existed when her claim was made. The Full Federal Court said, at page 93:
We reject the contention that, once the applicant had submitted her claim under Pt II of the Act, she had a right to have her claim determined by reference to the law in operation on that day. We are willing to assume that, upon the making of her claim for a pension, she gained a vested right to receive a pension if the death of her husband was war caused: s 13 of the Act. However, she had no right to have her claim determined by any particular procedure or to be able to vindicate her claim in any particular way: Rodway v The Queen (1990) 169 CLR 515.

Ms Doggett put to the Tribunal that there was no SoPs in effect with respect to Mrs Sach's claim when the Repatriation Commission determined the matter and that the Tribunal, standing in the shoes of the decision-maker, was bound to apply the law in force at the date of the Tribunal decision and that, if the veteran's condition fell within Instrument Nº 23 of 1996 as amended by Instrument Nº 5 of 1998, that SoPs as amended should be applied.

The documents record a history provided by the veteran to a medical practitioner on 9 June 1982. It is recorded that he had smoked one packet of cigarettes daily which he reduced to half a packet after his carcinoma of the right tonsil was diagnosed. He drank eight to nine middies some days. It was noted that his fingers were stained with nicotine. It was recommended that he cease smoking completely and modify his alcohol intake. A history taken later in 1982 records that there had been prolonged use of tobacco by the veteran, commencing at the age of 14 years, as well as a prolonged use of alcohol. The Tribunal notes that Dr D. Lewis-Enright, medical officer, stated on 30 December 1982, while noting that the veteran was a coal miner, that he had been a prolonged user of tobacco, starting smoking at age 14 years and in his opinion the veteran's smoking had contributed to his disability claim with respect to his carcinoma of the tonsil. Dr Lewis-Enright also noted the veteran's prolonged use of alcohol. Dr R. Bigg, consultant physician, advised Dr Tinning on 19 July 1994 ". . . He consumes excess alcohol and smokes . . .". The hospital's summary of the veteran's final admission discloses a diagnosis of peritonitis, perforated caecum and carcinoid syndrome. It was noted that the veteran had a prior history of carcinoma of the tonsil and "it had then been discovered that he had carcinoma of the liver which was presumably the primary carcinoma". His liver function test was relatively normal. Autopsy disclosed peritonitis from a perforated caecum which was caught up in massive cancer type tissue in his abdominal cavity. Histopathology revealed a carcinoid syndrome. Microscopic examination showed invasive moderately well to poorly differentiated squamous cell carcinoma. Throughout the medical records amongst the documents are indications by medical practitioners that the veteran should cut down his smoking and drinking.
There is no doubt that the veteran smoked. Mrs Sach told the Tribunal that when she first met her husband in 1948, he was smoking. They were married in November that year. She said that he smoked "a lot" but she could not state how much tobacco he used to roll his own cigarettes. He was still smoking when he died. In a smoking questionnaire completed by Mrs Sach she had indicated that she thought the veteran took up smoking during war service in 1945. She had indicated that his average daily use was one packet per day. The documents include a letter which was written out for Mrs Sach, which she signed on 31 May 1996. Mrs Sach referred to a statutory declaration made by the veteran's brother that the veteran neither smoked nor drank prior to enlistment. Mrs Sach stated that she thought that was an important factor because, when she asked him why he smoked, he would reply that he had stress from his Navy service and he could not stop. When asked questions about this document during the course of the hearing, Mrs Sach had very little recall as to the circumstances which gave rise to her making the statement.
Mrs Sach also completed an alcohol history with respect to the veteran. It was her memory that he had consumed eight to nine skooners of beer on weekdays and "a lot more on weekends". She did not know what time he finished work but she thought that he probably drank before arriving home. He did not tell her and she did not ask. The veteran was ". . . never a big eater at all. He used to drink a lot and I think he got the goodness out of the beer". He drank "down at the pub or up at the club". The veteran did not tell her about his naval service. She could smell beer on his breath but he was rarely "hung over". She said:
At the end our car used to – wouldn't go past a pub or a club, it would stop. But at the end it kept going past the pub and the club and I nearly died . . . I thought: gee, what's wrong.

The Tribunal also heard from a number of other members of the veteran's family. His son, Mr T. Sach recalled that his father smoked a great deal. He could not recall his father ever giving up smoking. He recalls spending a lot of time waiting for his father outside pubs and clubs. The veteran's brother, Mr H. Sach told the Tribunal that his brother had never drunk before his war service. Mr Sach said he was 14 years of age when World War 2 finished. He did not socialise with the veteran as there was six years in age between them. However, he could recall the veteran coming home after completing his service in the Navy when he worked as a stoker, which, in Mr Sach's opinion, was "a very hot trade". It was his understanding that his brother went on to beer after that. Turning to his memory of the veteran's smoking habit, Mr Sach could not recall his brother smoking before war service, but he told the Tribunal that the veteran was smoking when he came back after his war service. Mr Sach conceded that he had not seen much of the veteran after the veteran started working on the railways as a rivet boy before his war service. The veteran's daughter, Ms C. Haynes works as a bar attendant. She said that when the veteran stayed with her he would come down to the hotel where she worked and have three or four skooners. As a child she thought that her father had been affected by his drinking when he came home. The veteran's sister, Ms O. Sharpe also provided the Tribunal with a statement dated 27 August 1999 in which she said that to the best of her recollection the veteran did not smoke or drink prior to war service.
The Tribunal heard expert evidence from both Professional J. Levi, oncologist, whose report dated 14 April 1999 was before the Tribunal and Professor J. Shepherd, general surgeon, whose reports dated 2 August 1997 and 29 October 1999 were before it. A distinction needs to be drawn between carcinoid tumour and carcinoid syndrome. Professor Shepherd pointed out in his report dated 2 August 1997 that a proportion of tumours produce a chemical called serotoinin which, when released into the circulation, may cause clinical symptoms, such as diarrhoea, flushing and asthma. It is this constellation of symptoms, not the underlying tumour producing the symptoms, which are known as carcincoid syndrome. The Repatriation Commission found that the veteran's peritonitis was caused by carcinoid syndrome. Professor Shepherd pointed out that the syndrome does not seem to occur in cases of large bowel carcinoid tumour and the evidence did not establish clearly whether the syndrome actually occurred in the veteran's case. The Tribunal is not concerned with respect to that evidence as it was agreed, the cause of the veteran's death was malignant carcinoid tumour with intra-abdominal and liver metastases. Both Professor Shepherd and Professor Levi agreed that the primary tumour arose in the large bowel, although they disagreed as to whether the precise site was the veteran's appendix or caecum.
The Tribunal finds that the relevant SoPs in effect, referred to above, provide the meaning of "malignant neoplasm of the colon" for the purposes of the SoPs. The veteran's tumour falls within the scope of the SoPs in effect when Mrs Sach lodged her claim, Instrument Nº 37 of 1995 providing for "malignant neoplasm of the cells of the colon, attracting ICD Code 153". ICD code 153 lists those anatomical sites in the intestine which its definition of a word "colon" adumbrates. The list includes appendix, vermiformis and also the caecum. It appears a quirk that the veteran's tumour seems not to be included within the definition in Instrument Nº 23 of 1996, the Instrument in effect when the Repatriation Commission determined the matter. In that Instrument malignant neoplasm of the colon means a primary malignant neoplasm, not of cells of the colon, but of the "mucosa of the colon . . . attracting ICD Code 153". Professor Levi in his evidence confirmed that, while carcinoid tumours of the colon arise from cells of the colon, they do not arise from the mucosa of the colon.
Both smoking cigarettes and drinking alcohol were put by Mr Vincent as factors connecting the veteran's death with the circumstances of his war service, although Instrument Nº 37 of 1995 only provides a connecting factor with respect to cigarette smoking and no connecting factor with respect to alcohol. If factor 1(a) was beneficial to Mrs Sach, Mr Vincent invited the Tribunal to apply that factor or, if the Tribunal rejected the smoking hypothesis, he invited the Tribunal to turn to factor 5(c) with respect to the drinking hypothesis under Instrument Nº 23 of 1996.
In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court restated the course the Tribunal is to take, 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.
The material before the Tribunal points to a hypothesis connecting the veteran's death with the circumstances of his war service through either his consumption of alcohol or his smoking habit. The next step for the Tribunal is to ascertain whether there is in force a SoPs. In Keeley's case, as in Gartrell v Repatriation Commission [2000] FCA 1228 (decided on 9 August 2000), there were no SoPs in existence at the date of claim, although there was a SoPs in effect when the Repatriation Commission determined those matters. In Keeley the relevant SoPs had been revoked before the Tribunal considered the matter and a further SoPs was determined. It was conceded in Keeley that the applicant would be unable to establish the factual matters required under the new SoPs and an issue arose as to whether the revoked SoPs or the new SoPs should apply (see paragraph 13 above).
The Tribunal rejects Mr Vincent's contention that a claimant can, in effect, SoPs shop, that is, that a claimant can pick and choose those parts of SoPs under which his or her case may fall. Applying Keeley and Ogston, the Tribunal will not determine the matter under the law in effect when Mrs Sach lodged her claim. Turning to the date when the Repatriation Commission determined the matter 1 February 1996, the Tribunal is satisfied that, due to the then definition of "malignant neoplasm of the colon" in Instrument Nº 23 of 1996, no SoPs was in force with respect to the veteran's condition which Mrs Sach contends connects the veteran's death with his war service and the Tribunal should therefore apply the principles enunciated by the High Court in Bushell and Byrnes. Ms Doggett suggested that Instrument Nº 23 of 1996 should apply, the definition of malignant neoplasm of the colon, as now amended, bringing the veteran's condition within the SoPs. In either event, the Tribunal is satisfied that the material raises a reasonable hypothesis connecting the veteran's death with the circumstances of his war service.
Turning first to the hypothesis put by Mr Vincent with respect to the veteran's drinking, the veteran's sister could not recall that he drank before his war service, although she was only 10 years old at the time. It was also the recollection of the veteran's brother. After some discussion between the parties, Ms Doggett conceded that the veteran drank sufficient alcohol to meet factor 5(c), but what remained in issue was whether the veteran's drinking habit was connected with his war service. There is very little evidence before the Tribunal on this point. The veteran's brother did recall asking the veteran why he had started drinking and he said that the veteran had told him ". . . Well, everybody does it, so – and it's as hot as hell in those - under the stokers where they feed the boilers in the ship". There was material before the Tribunal pointing to the veteran as having undertaken hot and stressful work during service. He was 19 years of age on enlistment.
If the SoPs as amended does apply, the Tribunal is satisfied that the hypothesis raised is reasonable because the hypothesis fits the template containing factor 5(c) of SoPs Instrument Nº 23 of 1996 and the hypothesis is not fanciful nor untenable. Although the veteran had been in the workforce as a rivet boy for some time before his war service, the material points to the veteran's war service as being particularly hot and stressful and, if the facts raised are true, they would connect the veteran's drinking habit with his war service. Turning to subsection 120(1) of the Act, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran's death is war-caused. Although there may be doubts in the Tribunal's mind due to the lack of evidence, that lack of evidence means that the Tribunal cannot be satisfied that the veteran had an established drinking habit before war service or that his war service did not contribute to his after service drinking habit. Similarly, if the SoPs does not apply and considering the matter under the principles as enunciated by the High Court in Bushell and Byrnes, the hypothesis raised connecting the veteran's death with his war service is not fanciful nor untenable and Mrs Sach should be paid pension under the Act.
The cause of the veteran's smoking habit is less clear as there is evidence that the veteran commenced smoking before service. Ms Doggett noted that the veteran's disease was diagnosed in 1984 and that he would have had to smoke the equivalent of at least 15 pack years of cigarettes before 1954. Some discussion took place with respect to the medical history obtained from the veteran in June 1982 which Ms Doggett pointed to as the best evidence being a record made of responses by the veteran himself. Although there is a record amongst the documents that the veteran started smoking at the age of 14 years, there is nothing to suggest that he was smoking any particular number of cigarettes at that time. He did not enlist until 1945 which suggests that his access to cigarettes before that date could have been limited. However, as the Tribunal is satisfied that there is a reasonable hypothesis connecting the veteran's drinking habit with his war service which contributed to his death, the Tribunal will not determine whether the smoking hypothesis is reasonable.
It is for these reasons that the Tribunal will set aside the decision under review and substitute a decision that the veteran's death was war-caused and that Mrs Sach is entitled to be paid pension under the Act.
I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
Dr   J.R. Vallentine,         Member
signed:          . . . . . . . . . . . . . . . . . . . . . . .
  Personal Assistant
Dates of Hearing:  15-16.11.99
  30.03.00
  13.07.00
Date of Decision:  04.12.00
Counsel for the Applicant:           Mr A. Hill
Solicitor for the Applicant:           Messrs Dibbs Crowther & Osborne
Solicitor for the Respondent:       Ms A. Doggett, Departmental Advocate