Scott and Repatriation Commission - [2000] AATA 328

DECISION AND REASONS FOR DECISION [2000] AATA 328

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/0465

VETERANS APPEALS DIVISION           )
           Re      BARBARA LOUISE BEHRENDORFF and ROGER STUART SCOTT as executors of the Will and Trustees of the estate of ALAN SCOTT
  Applicants
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr J. Handley, Senior Member
Dr C. Re, Member
Mr I. Campbell, Member

Date28 April 2000
PlaceMelbourne

Decision The decision under review is affirmed.

..…………………………..
Senior Member

Veterans' Entitlements: Deceased served in Middle East; whether smoked cigarettes or tobacco; whether any connection between service and smoking; whether Statement of Principles (ischaemic heart disease) satisfied; decision affirmed.

Veterans' Entitlements Act 1986 s126(1) s120(3)

Repatriation Commission v Stares 1996 41 ALD 212
Repatriation Commission v Webb (VG627 of 1997)
Bushell v Repatriation Commission 1992 109 ALR 30 at 34
East v Repatriation Commission 1987 74 ALR 518 at 533
Repatriation Commission v Deledio 1998 49 ALD 193

REASONS FOR DECISION

28 April 2000           Mr J. Handley, Senior Member
           Dr C. Re, Member
           Mr I. Campbell, Member

Legal representatives who appear before this Tribunal owe a special duty to clients who are veterans and widows of veterans. Their clients are often elderly and infirm and have been exposed to the horrors of war. Despite the passing of time the circumstances of service remain confronting and vivid.
It is therefore important for legal representatives to obtain comprehensive instructions with patience and sensitivity. This may involve visiting ill or infirm clients who are unable to attend professional offices. Historical records should be investigated thoroughly and if they are not provided by the respondent they should be sought, together with other documents and reports in support of veteran's applications.
Complying with Directions of the Tribunal with respect to the filing and lodging of documents is also expected, as is putting the Tribunal and Repatriation Commission on notice as to the hypothesis that will be advanced and the relevant Statements of Principles.
This duty of care is no more than that which is expected of legal representatives and is no more than appropriate professional conduct in advancing the rights of a veteran client.
Regrettably, this application disregards almost all of the above ethics and expectations. If it has been funded by Victorian Legal Aid, it has been an unjustified expenditure.
The Tribunal has sadly reached this conclusion because this was an application which should never have proceeded to hearing. Were it not for the applicant's solicitor apparently pursuing the application with some seriousness, a transcript of the proceedings could be the script for a black comedy.
The application under review was to challenge a decision of the Veterans' Review Board made on 23 March 1998, where it then affirmed decisions previously made by the respondent to reject anxiety disorder, ischaemic heart disease, and aortic stenosis as war-caused. The Veterans' Review Board also decided to affirm previous decisions to assess general rate pension at 40%. Mr De Marchi appeared on behalf of the applicants and Ms - appeared on behalf of the respondent.
The proceedings before this Tribunal were lodged on 1 May 1998.
Regrettably Mr Scott died on 16 August 1998. The respondent was not prepared to issue a notice under s126 of the Veterans' Entitlements Act 1986 until Mrs Scott could establish that she was the legal personal representative thereby permitting her to "be treated as the claimant" (s126(1)).
There followed many months of delay during which the applicant's solicitor wrote to the respondent and indicated that the deceased's Will was unable to be located and he was unable to establish that Mrs Scott was the legal personal representative. One of his letters to the respondent (a copy of which was forwarded to the Registrar) confirmed that "Mrs Scott has not as yet been able to provide us with the will of the late veteran …" (refer letter 13 April 1999).
On 5 May 1999 the applicant's solicitors forwarded a copy of the Will of the late Mr Scott to the Registrar and to the respondent. The Will was attested in the month before the death of Mr Scott. The Will was prepared by the applicant's solicitor. Mrs Scott was not the executor of the Will and was therefore not the legal personal representative for the purposes of s126. The deceased's children, Barbara Louise Behrendorff and Roger Stuart Scott were appointed joint executors and trustees by Mr Scott in his Will and they became the 'claimants' per s126(1) of Veterans Entitlements' Act. The application was, therefore, pursued on behalf of the estate to recover pension that would have otherwise been payable (if at all) in the deceased's lifetime. We were also advised that Mrs Scott was separately pursuing proceedings at the Veterans' Review Board to recover a widows' pension.
Shortly after the children of the deceased became the claimants, Directions were issued to file statements of facts and contentions, proofs of evidence of witnesses and medical reports in support and to identify the relevant statements of principles. The solicitor failed to comply with these Directions. At a Directions Hearing subsequently convened in an attempt to secure these documents and have some indication given to the Tribunal and to the respondent of the claim being pursued, it was learnt that the applicant's solicitor was obtaining medical reports and was preparing the application to argue that the estate was entitled to recover extreme disablement adjustment. One hypothesis that was foreshadowed by the solicitor was an association between service, stress and anxiety, consumption of cigarettes and ischaemic heart disease. This hypothesis was pursued, despite having received a medical report from Dr Rosenbaum, which indicated that the deceased had not ever smoked cigarettes.
On the day that the matter was listed for hearing, the applicant's solicitor indicated to the Tribunal that the hypothesis being advanced was that the deceased's service precipitated the commencement of a smoking habit, which in turn had an association with ischaemic heart disease, which was responsible for incapacity and gave an entitlement to pension at 100% of the general rate.
The Tribunal asked the solicitor to tell us what it was about the deceased's service, which gave rise to commencement of cigarette smoking. He told us that the deceased served in New Guinea. The Tribunal again asked him to tell us what it was about the service or the events in service which would give rise to commencement of a smoking habit. He responded by asking us to adopt the principle of res ipsa loquitur. When we advised the applicant's solicitor that the T documents recorded in many places that the deceased served in the Middle East and was an officers' mess hall sergeant, he submitted that the Tribunal should find an association between service and smoking on the basis of "Stares' case" (the Tribunal presumes this to mean a reference to the decision of a full Federal Court in Repatriation Commission v Stares 1996 41 ALD 212).
The solicitor indicated to us at the commencement of the hearing that his client was unable to give evidence by telephone because when he had tried to contact her earlier on the morning of the hearing she had left the retirement lodge where she resided "to go shopping". He did not know when she would be returning. Nonetheless, he intended to call the proprietor of the nursing home and a Doctor Cole, a medical practitioner who attends residents at the lodge. He indicated that these persons would say that Mrs Scott is lucid and had good long-term recollection. It was not made clear to us why these persons were being called.
After standing down to allow the solicitor an opportunity to inquire whether Mrs Scott had returned, the Tribunal was informed that she was standing by and ready to give evidence by telephone. The Tribunal was aware that Mrs Scott would give evidence by telephone because of the Statements of Facts and Contentions filed prior to the hearing. In that document there was a submission purporting to be an outline of the evidence that Mrs Scott would give with respect to her husband's service and his smoking habit.
In evidence Mrs Scott said that her husband did not smoke cigarettes before service but "picked up the habit whilst away". She said he commenced to smoke cigarettes "because of what others did and because it was sociable". She said she was not "there" to complain about his smoking but was very surprised to learn when he returned that he was smoking. She said that his smoking was an expensive habit but she did not know how much he expended on it or how frequently or in what quantities he smoked cigarettes. Mrs Scott said that he purchased his own cigarettes. She said that she "kept telling him not to smoke" yet "he defied my displeasure and went away to smoke".
Mrs Scott said that her husband was an enthusiast of Freemasonry which "took a lot of money". She said he used to stop and start smoking frequently and because he "did a lot of funerals" he would have a cigarette to "cheer himself up". She said he was "entitled to a bit of freedom".
When Mrs Scott was asked whether she knew if her husband had ever told doctors that he did not smoke she said it was very likely that they "would have advised him not to smoke".
In cross-examination Mrs Scott said that her husband visited doctors on many occasions – "it was a fetish – he was always going to doctors". She said she did not know whether he would have given doctors an accurate history but said he was "truthful" because he was "into Freemasonry and promised to honour the flag".
When Mrs Scott was advised that there were medical records from 1954 with references to her husband not being a smoker of cigarettes or tobacco she said "you are hearing a different story from me".
When she was asked whether she could explain why her husband would give a detailed history to doctors of his drinking habits but would deny cigarette smoking she replied "how would I know – try to get an obstinate Scotsman ….. pigheaded …. he told the truth when he wanted to".
When Mrs Scott was asked to comment on a questionnaire completed by her husband in 1985 where he recorded that he was "a non-smoker always" Mrs Scott replied "he embroidered things. He made out Freemasonry was the most important thing – everything else was put to one side – me and the children included".
At the end of her evidence Mrs Scott was asked some questions by Tribunal Member, Dr Re. Mrs Scott was unable to recall her date of birth, her age, the year of her marriage or the years of her childrens' births, although she was aware she had two children, saying they were born before her husband enlisted.
Prior to Mrs Scott giving her evidence, Dr Trudy Kennedy attended the Tribunal hearing room and took a seat. The applicant's solicitor asked to be excused from the bar table so that he could approach Dr Kennedy. He said he was doing so to inquire "whether this lady is my client". The Tribunal thought this was a remarkable query as it had been told that his client was unable to give evidence except by telephone and that he had been instructed initially that she was unavailable to give evidence because she had left her lodge in Warragul for shopping. When it was learnt that the person seated at the back of the hearing room was Dr Kennedy, upon further inquiry by the Tribunal, Mr De Marchi indicated that he was not pursuing an anxiety disorder as an element in the hypothesis referred to earlier.
Nonetheless, Ms McCulloch who appeared on behalf of the respondent called Dr Kennedy.
Dr Kennedy, who is a psychiatrist, said that she recalled the deceased as being neat, respectable, charming and pleasant. She said that he did not show any signs of cognitive deficit. She said Mr Scott told her about his membership of a bowling club and his drinking habits. She said Mr Scott told her that he did not smoke. She said that he appeared to be truthful and did not hesitate in answering her questions.
In cross-examination Dr Kennedy was asked to confirm that she had heard the evidence given by Mrs Scott over the telephone. Mr De Marchi asked Dr Kennedy whether Mrs Scott is a person who knew what she was "doing". Dr Kennedy replied "I would have reservations about that".
Dr Kennedy acknowledged that Mr Scott could have been a smoker "in the past" however she said "I think he would have told me. He told me of his drinking habit in great detail".
Having learnt that the deceased had made references on 27 occasions (as found within the T documents) that he was not a smoker she said that if he had been a smoker of cigarettes or tobacco it would have been "a terrific disguise".
She said that most persons who do have an addiction minimise it when asked, however she said that there was no evidence known to her that he was a smoker and that she believes "what people tell me".
At the conclusion of the evidence of Dr Kennedy the Tribunal indicated to the applicant's solicitor that it wished to hear evidence from Mrs Behrendorff and Mr Scott. The solicitor then said that his case had closed. We indicated nonetheless that we wanted to hear from Mrs Behrendorff and Mr Scott.
Mrs Behrendorff told the Tribunal that her father and her mother had never smoked. She said she was presently 55 years of age and her father had never had cigarettes in the house.
In cross-examination Mrs Behrendorff confirmed that she was born in 1944. She said she assumed that her father had not smoked before service and acknowledged that he could have smoked overseas in the Middle East. She said she had never asked her mother whether her father had smoked before or during service or when he returned from service. Mrs Behrendorff said that she was not aware until the day of hearing that her mother was pursuing a claim based on smoking. She said such a claim was fictitious.
She conceded that it was possible that her father had smoked when overseas and conceded also that it was possible that her mother would know of this. She also conceded that it is possible that her father smoked cigarettes before she reached six or seven years of age which would have been in approximately 1950 (this has some relevance to a submission made later in the proceedings).
Mrs Behrendorff said that her mother presently lives in a nursing home with 40 others. She said she is a resident of the home because "her hands don't work". She said her mother has short-term memory loss and some long-term memory problems as she can no longer recall that her late husband had had "heart problems" for approximately 35 years and had taken medication throughout that period.
Roger Scott gave evidence by telephone. He said that he never saw his father smoke cigarettes and was not aware that he ever smoked at any time. He said he was presently 53 years of age and was born in 1946. He said he had no knowledge of his father smoking cigarettes before or during service. He said he had never been asked any questions about his father's smoking habit before the time he gave his evidence.
Despite having earlier closed his case, the applicant's solicitor then called Robert Pillay, who has been a registered nurse since 1984 and the manager of the Gracevale lodge in Warragul, where Mrs Scott is a resident. Mr Pillay said that Mrs Scott had resided at the lodge since 20 October 1999. So far as he was aware Mrs Scott does have an accurate long-term memory and is capable of making decisions on a day-to-day basis. He said that he could recall her talking about her husband's service overseas and recalled also that she had said that he never smoked cigarettes at home but that he could have smoked overseas. He said that she had said this during a "reminiscing exercise" which is an event which occurs once or twice a month where residents talk about their lives. He said that she also had said during one of these sessions that her husband was smoking when he returned from overseas and that she was then horrified. Mr Pillay said that he believed the truthfulness of what she had said, he could not see any "gaps" in her memory but he said he was unable to say that memory was "100% accurate".
Mr Pillay said that the Gracevale lodge is not a nursing home but is a "supported residential service". He said that Mrs Scott would not have been assessed by a geriatric or age assessment team on admission because there was no requirement to do so.
In re-examination Mr Pillay said that he believed what Mrs Scott had told him and tells him and whilst he cannot "vouch for what she says", in his experience "elderly people tend not to fabricate".
Throughout the documents filed in these proceedings there are at least 27 references that we can locate where the deceased has either said that he did not smoke or that doctors have taken a history from him that he did not smoke.
Mr Scott recorded in a questionnaire on 4 November 1985 that he was a "non-smoker always" in response to a question "are you now or were you ever a smoker". In a questionnaire dated 8 November 1991 Mr Scott said "no" in response to a question "did you ever take up the habit of smoking tobacco (either cigarettes, cigars or a pipe?). At the foot of that document when asked "is there anyone who can confirm the details of your smoking history prior to or during service? If so please give the name and address of this person", Mr Scott has recorded "my wife Nancy Flora Scott married for 52 years" (refer exhibit one pages 8, 11 and 12).
In closing submissions the applicant's solicitor said that because the deceased was engaged in operational service, Mrs Scott has a relaxed onus of proof. He said that she has discharged the onus because she had given evidence that her husband "changed" whilst he was away during service from a person who did not smoke before service but who did take up smoking during service and was smoking on return. It was submitted that the records of Mr Scott not being a smoker were consistent with him having stopped smoking after service. This submission was supported he said by a hand written letter of Mrs Scott, which was received into evidence, which in part recorded "he eventually kicked the habit thank goodness". [This letter also stated that Mr Scott had smoked up until his last illness.]
It was submitted that the Tribunal should find that factor 5(e) of instrument No. 77 of 1996 had been satisfied (ischaemic heart disease). That factor records:
"smoking at least five cigarettes per day or the equivalent thereof in other tobacco products for at least three years before the clinical onset of ischaemic heart disease and where smoking has ceased the clinical onset has occurred within 15 years of cessation".
It was submitted that Mrs Behrendorff and Mr Scott would have no recollection of their father smoking cigarettes upon his return from service. By reason of them having been born respectively in 1944 and 1946, the above factor was satisfied because on the evidence of a medical report from Dr Kay found at page 4 of exhibit "B", the symptoms of ischaemic heart disease were apparent at 1960. The clinical onset, therefore, it was submitted of ischaemic heart disease was in the late 1950s or at the latest 1960. This would have been within 15 years of the deceased having returned from service at or about which time he ceased smoking cigarettes.
Ms McCulloch submitted that there was no evidence that pointed to the deceased having smoked cigarettes. She said the first reference to him being a non-smoker was in one of the documents filed with the Tribunal dated 1954 and thereafter there were many documents, which recorded the fact that he was a non-smoker.

In reply the applicant's solicitor submitted that factor 5(q) of the above instrument also applied because of the clinical worsening of ischaemic heart disease. That factor records
"smoking at least five cigarettes per day or the equivalent thereof in other tobacco products for at least three years before the clinical worsening of ischaemic heart disease and where smoking has ceased the clinical worsening has occurred within 15 years of that cessation.
It was submitted from the documents that the deceased had "some cardiac problem prior to and possibly during service". It followed – according to this submission – that "if" the deceased smoked during service and was hospitalised in service it was open to the Tribunal to find that there was a worsening of ischaemic heart disease.
Despite this submission being made at the conclusion of the proceedings, after evidence had been heard, and it not having been recorded in any of the pre-hearing documents, it was submitted that the respondent should not be taken by surprise. It was submitted that this hypothesis was consistent with the "smoking hypothesis" that was always known to the respondent and that the respondent could not demonstrate any prejudice.

CONCLUSIONS AND REASONS FOR DECISION

The submission put at the conclusion of the proceedings with respect to factor 5(q) was put absolutely devoid of any material which would point to support for the hypothesis.
The concept of "worsening" necessarily implies that the illness, injury or disease that was worsened did in fact exist. That is to say an illness, injury or disease cannot be worsened unless it has a presence. The Tribunal can find no material throughout the documents filed (the Tribunal has had to make the inquiry because nothing was submitted to us) that would point to the presence of the condition before 1960.
An examination by the "Medical Board" prior to enlistment recorded that the deceased had "cardiac and eye trouble". There are other references to the deceased having suffered from tachycardia and mitral valvular disease, shortness of breath on exertion and palpitations but we can find no reference at all to the presence of ischaemic heart disease prior to the reference to it in the report of Dr Kay (refer earlier).
So far as factor (e) and (q) is concerned there is no material which points to the deceased having smoked five cigarettes per day. The only evidence of the deceased being a smoker was from Mrs Scott who, despite being asked on many occasions as to the quantities that he smoked or the amount that he spent on cigarettes, was unable to say or unable to recall.
The most significant and overwhelming feature, however, of this application is that it was entirely based upon a hypotheses which contained, as an element, the deceased being a smoker of cigarettes or tobacco.
The only evidence of this was from Mrs Scott. There were, however, 27 references in the documents filed to the deceased not being a smoker. These were from records and reports made by doctors who had treated the deceased and documents completed by the deceased. There was evidence also from the deceased's children that he did not smoke.
As the full Federal Court in a Repatriation Commission v Webb (VG627 of 1997) recorded on 5 November 1998
"the proper approach is to ask in relation to each sequential part of the hypothesis whether the facts point to that part of the hypothesis being reasonable. Once it is established that a relevant part of the overall hypothesis is reasonable then any doubts as to the reasonableness of that part of the hypothesis must for the purposes of s120(3) be put aside and the next part of the hypothesis considered. It is not appropriate to carry over or accumulate doubts in relation to the reasonableness of one part of the hypothesis and apply these doubts to a consideration of other parts of the hypothesis or to the hypothesis as a whole. In the present case each sequence in the overall hypothesis raises a discreet question. What must be answered is the question whether the hypothesis pointed to by each sequential part, which makes up the overall hypothesis is reasonable. If this is so that the overall hypothesis maybe considered reasonable."
The Tribunal is satisfied, having heard the evidence of Mrs Scott and read the documents filed, that a "sequential part" of the hypothesis put in the present application, namely that the deceased was a smoker or smoked a quantity sufficient to satisfy factor 5(e) or (q) is not reasonable because it is not pointed to by the material. The Tribunal is also reinforced in this view by the evidence of Mrs Behrendorff, who, when told that the application was based upon a history of her father smoking said that the hypothesis was fictitious.
Put another way, the hypothesis advanced is not supported by any material, which points to any raised facts which support it and it therefore cannot be regarded as being reasonable (refer Bushell v Repatriation Commission 1992 109 ALR at 30 at 34). Alternatively the hypothesis is not reasonable because in the circumstances of the case that the Tribunal heard it is "obviously fanciful, impossible, incredible or not tenable … to remote or too tenuous" (refer East v Repatriation Commission 1987 74 ALR 518 at 533).
In so far as the decision of the full Federal Court of Repatriation Commission v Deledio 1998 49 ALD 193 is concerned the Tribunal could not be satisfied that this application can proceed beyond the first element recorded by the Court in their conclusion at page 206. That is to say:
"the Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting injury disease or death with the circumstance of a particular service rendered by the person. No question of fact-finding arises at this stage. If no such hypothesis arises the application must fail".
For the reasons given above, the Tribunal is not satisfied that there is material which points to a hypothesis connecting service with cigarette smoking and ischaemic heart disease.
For all of the above reasons the decision under review must be affirmed.

I certify that the sixty one [61] preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member J. Handley
Member Dr C. Re
Member Mr I. Campbell
Signed:         Linda A Nemeth ………………………………..
  Secretary
Date of Hearing  6 April 2000
Date of Decision  28 April 2000
Solicitor for the Applicant            Mr D. De Marchi, Messrs De Marchi & Associates
Solicitor for the Respondent        Ms McCulloch, Department Advocate