Sedgwick and Repatriation Commission
[2007] AATA 1083
•23 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1083
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/182
VETERANS' APPEALS DIVISION ) Re BETTY SEDGWICK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, RFD, Senior Member Date23 February 2007
PlaceBrisbane
Decision The decision under review is affirmed. ...........{KS Levy............
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether death war-caused – prostate cancer – ischaemic heart disease – Statement of Principles – whether evidence of smoking related to army service in World War II – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 8, 119, 120, 120A
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act1994 (Cth)
Sedgwick and Repatriation Commission [2002] AATA 1129
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v O’Brien (1984) 155 CLR 422
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION
23 February 2007 Dr KS Levy, RFD, Senior Member 1. The applicant, Betty Sedgwick, is the wife of the deceased veteran, Robert Alexander Sedgwick, (“the veteran”). She has maintained for some time that her husband’s death could be related to his operational service in World War II. A previous application has been rejected (Sedgwick and Repatriation Commission [2002] AATA 1129). A further application resulted in a decision on 23 July 2004 by the Repatriation Commission which determined that the veteran’s death was not war-caused. That decision was affirmed by the Veterans’ Review Board on 8 March 2006.
2.The applicant seeks review of the Veterans’ Review Board decision.
ISSUES
3. The issue to be determined by the Tribunal is whether the veteran’s death is related to his war service within the meaning of section 8 of the Veterans’ Entitlements Act 1986 (the Act). Specifically, the Tribunal is asked to determine whether the conditions of malignant neoplasm of the prostate; and/or ischaemic heart disease were due to the veteran’s previous smoking, and whether there is a causal connection between these conditions and his operational service?
LEGISLATION
4.The following statutory provisions are relevant:
Veterans’ Entitlements Act 1986
“8 War-caused death
(1) Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…..
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ……
119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
…..
the Commission:
…….
(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.
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.
….
(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.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…..
(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.”
EVIDENCE
5.The following documentary exhibits were admitted into evidence:
Exhibit 1 – the T documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 – Statutory Declaration of Mr Richard Hoareau dated 31 August 2006
Exhibit 3 – Medical report from Dr Luis Prado dated 15 August 2006
Exhibit 4 – Letter from Wallace Davies dated 5 September 2006, including a file note by Mr Stoner dated 12 November 2006.
THE APPLICANT
6. The applicant in this case was self-represented. Mr John Stoner, advocate for the Repatriation Commission, presented a lengthy opening which fairly represented the background and issues before the Tribunal. Mr Stoner adopted the role of the model litigant and also outlined the issues in favour of the applicant. Mrs Sedgwick did not disagree with any aspect of Mr Stoner’s opening remarks.
7. The record shows that the veteran served with the Australian Army from 5 August 1940 to 6 October 1945. The whole of that service constitutes operational service for the purposes of the Act. The applicant was born in Jarrow, England, on 1 January 1913. He was therefore 27 years and seven months old when he enlisted in the Australian Military Forces during World War II.
8. The veteran died on 29 April 1999, at 86 years of age. The death certificate reveals the causes of death as being:
1(a) Renal failure (six months)
(b) Carcinoma prostate with ureteric obstruction (four years)
2 Ischaemic heart disease (16 years)
9. As mentioned earlier, there was a previous application to the Repatriation Commission and ultimate appeal to the Administrative Appeals Tribunal in relation to this matter (see Sedgwick and Repatriation Commission [2002] AATA 1129). The facts traversed there is also evidence on the record for the present application. That Tribunal rejected the applicant’s assertions in relation to cancer of the prostate and ischaemic heart disease (IHD) and affirmed the Commission’s decision.
10. The evidence in the previous application, as well as in the present application, reveals some inconsistent evidence about whether the veteran had smoked. A chronological summary of the evidence of the veteran’s smoking is as follows:
i.The veteran began to smoke in January 1974 after his first wife became a heavy smoker. He would have a cigarette at night only. He stopped smoking in February 1975 (the veteran’s statement/questionnaire dated 4 August 1996. T documents, folio 12).
ii.The veteran’s letter to the Department of Veterans’ Affairs dated 14 January 1997 indicating he believed his claim was refused because “I was a non smoker”. He believed that because his first wife was a heavy smoker, his “passive smoking” would have been acknowledged. (T documents, folio 31).
iii.Letter dated 28 June 1999 from the veteran’s niece, Mrs Corinna Doherty, who stated that the veteran and his first wife were both heavy smokers. (T documents, folio 56). There was also evidence from Mrs Doherty under cross-examination in the hearing of the previous application, that she never saw the applicant smoke, as she was an asthmatic and was sent outside whenever the veteran and his wife were going to smoke.
iv.The applicant’s daughter who ran a fruit shop (and where the veteran attended everyday for 20 years), stated that she never saw him smoke on any occasion. However, she did provide evidence that she had smelt smoke on his clothes and saw a couple of cigarettes in his bag one day.
v.The applicant provided evidence at the previous hearing that the veteran had ceased smoking “about fifteen years ago”. (See letter dated 27 July 1999 – T documents folios 57 and 59).
vi.The veteran worked as a labourer for 25 years, at first on the waterfront, and after retiring from there, he did general labouring from time to time. A co-worker, Mr Stephen Limbach, in a letter dated 24 March 2004, stated that the veteran “enjoyed the odd smoke” (T documents, folio 93).
11. At the present hearing of this matter, the applicant, Mrs Sedgwick, indicated that she met the veteran in 1975 and they were married in 1978. She said that he smoked when she first met him, but she banned smoking in the house after they were married. While she did not see him smoking very much after that time, she found some cigarettes in his drawer after his death.
12. The applicant also referred to a number of conditions of the veteran at the present hearing. She said the veteran had said that he was always having trouble breathing in the Army and that he was a heavy smoker during the War. She said that you often could not believe what the applicant said. She wondered whether the veteran’s pains in his stomach might have been linked to his ultimate prostate cancer. She said he always had stomach pain and headaches and liked Coke and Bex. The applicant also referred in this context to the veteran’s consumption habits, where for example, he would consume, sometimes secretly, large quantities of sausages. She asserted that his smoking may have been related to all these conditions and that they in turn were connected to his service in World War II.
13. In cross-examination, when asked whether he ever talked about his time in the War, the applicant said “No” as the veteran regarded it as “past history”. She thought her husband may have said more to her children than he did to her. From her personal knowledge, he stopped smoking in about 1987 which is when he suffered from cancer of the bowel.
MR RICHARD HOAREAU
14. This witness gave sworn evidence that he was the step-grandson of the veteran. He spent a significant amount of time at his grandparents’ place when growing up, as his mother was always working.
15. Mr Hoareau said that, at least as a teenager, he would regularly go for walks along the beach with his grandfather. He said that he always smoked and would have three or four cigarettes in two hours when they walked along the beach. He said the veteran had told him that he smoked for a very long time, and at least from his time in the Army.
16. In cross-examination, Mr Stoner questioned the witness about paragraph 6 of his statement in Exhibit 2 which reads “During the periods that I attended with Robert on these walks, we often discussed his time whilst in the Army”. Mr Stoner put to the witness that the applicant had given evidence that the veteran almost never talked about his time in the Army. Mr Hoareau then said that perhaps “often” put the matter too highly. He said maybe it should be “occasionally”. He said the veteran did not talk about any particular event in his Army service.
CONSIDERATION
17. The Tribunal has considered the whole of the material, including the relevant statutory and case law.
18. In determining whether the applicant’s death was related to his war service, the following preliminary questions must be determined:
i Was Mr Sedgwick a veteran?
19. The veteran had operational service during World War II from 5 August 1940 to 6 October 1945. There was no dispute that the deceased was a veteran. Therefore, the Tribunal accepts this undisputed fact.
iiIs the applicant the wife of a deceased veteran?
20. The applicant is noted on the deceased’s death certificate. There was no issue raised which demanded further proof of this fact. Therefore the Tribunal accepts that the applicant is the wife of the deceased, Robert Alexander Sedgwick.
IiiWhat was the “kind of death” suffered by the veteran?
21. This is a critical step in the analysis (Repatriation Commission v Hancock (2003) 37 AAR 383 at 385-386). The death certificate reveals the causes of death as being renal failure and carcinoma prostate with ureteric obstruction; and IHD (T-Documents, folio 83). There is no other evidence inconsistent with the death certificate.
22. Proof of the “kind of death” is on the balance of probabilities (Repatriation Commission v Hancock (2003) 37 AAR 383 at 385-386). As to whether the kind of death is covered by the Statement of Principles (SoP), the respondent has submitted that the Tribunal should consider whether the veteran’s death is related to military service through “malignant neoplasm of the prostate” or “ischaemic heart disease” (IHD). These conditions are specified in the SoPs. The applicant argues that they could be related to military service. The Tribunal accepts therefore that it is possible that a hypothesis could be raised on the basis of the SoPs.
23. The Tribunal therefore accepts that the veteran’s death is the “kind of death” that could be related to his war service.
iv When was clinical onset of these conditions?
24. The death certificate indicates that at the time of death, the veteran had suffered from the following conditions for the periods of time indicated:
1(a) renal failure (six months)
1(b) carcinoma prostate with ureteric obstruction (four years)
2 ischaemic heart disease (16 years)
25. The evidence shows that clinical onset of the prostate condition had occurred about four years prior to his death. It therefore commenced, or had clinical onset, in about 1995. There was no medical evidence which provided any link between that condition and the applicant’s war service over fifty years earlier. In relation to IHD, that condition was said to have existed for 16 years and would therefore have had its clinical onset in about 1983. The question of whether there is evidence to link smoking between his war service and this condition is pursued below.
SUBSTANTIVE ANALYSIS
26. The evidence of the veteran’s smoking is vague and uncertain. The respondent argues section 119 is of no assistance to the applicant in this regard.
27. The legislation requires consideration of section 120 and section 120A of the Act. However, it is useful to examine the development of the law in this area prior to the introduction of section 120A and Statements of Principles which are applicable to claims lodged after 1 June 1994. Originally, in Repatriation Commission v O’Brien (1984) 155 CLR 422, the High Court held that a veteran is to be given the benefit of any doubt when finding a connection between incapacity or death and his military service. The law in that regard was amended in 1985 to moderate this decision and to make it clear that there must be “….. some reason to believe in the existence of a causal connection” (East v Repatriation Commission (1987) 16 FCR 517 at 532).
28. To overcome the decision in O’Brien (supra), it was clarified that section 120(3) “…..is not concerned with conflicts in the material, whether they be of opinion or fact” (Bushell and Repatriation Commission (1992) 175 CLR 408 at 413).
29. In Byrnes and Repatriation Commission (1993) 177 CLR 564, the High Court observed from the judgment in Bushell’s case “…. that the material must point to some fact or facts which support the hypothesis means no more than the material before the Commission must raise some fact or facts which give rise to the hypothesis”. (at 569 - 570). The Court then authoritatively said “(1)….. [t]he hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis”. (at 571).
30. Section 120A was then enacted and Statement of Principles (SoPs) were introduced with related provisions in Part XIA. These statutory and subordinate legislative requirements were introduced by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth). Those provisions were discussed in Repatriation Commission v Deledio (1998) 83 FCR 82 where it was stated inter alia, that the approach to determining an application must be:
“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 s196B(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. [this is now accepted as partially inaccurate; see the discussion of Gosewinckel below.]
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 s196B(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 s120(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.” (at 97-98)
31. In relation to Step 1 of Deledio Mr Stoner argued that with respect to “malignant neoplasm of the prostate” SoP Number 28 of 2005 is not satisfied. He indicated that in Sedgwick and Repatriation Commission [2002] AATA 1129, the Tribunal determined that malignant neoplasm of the prostate is not related to service (T documents, folio 66). That Tribunal considered the evidence in relation to SoP Number 84 of 1999 as amended by Number 69 of 2002. Mr Stoner submits there is no material difference between the present SoP and the SoP in existence at the time of the previous hearing.
32. The Tribunal agrees with that submission. In addition, there is virtually no factual evidence which relates this condition to the applicant’s operational service. The applicant referred to her curiosity as to a link between the veteran’s consumption habits and his prostate cancer. Apart from these subjective ideas, there is no evidence and certainly no medical evidence presented, which relates that condition to operational service. Therefore, the Tribunal finds that a hypothesis is not raised in relation to malignant neoplasm of the prostate which would causally link that condition to the veteran’s operational service, and therefrom, to the cause of his death.
33. With respect to the veteran’s IHD, there is some contest in the evidence as to the extent of the veteran’s smoking. There is evidence of the veteran himself which indicates he has never smoked. On the other hand, there is some evidence to say that he smoked, at least a small amount for the period between 1974 and 1987. There is also some circumstantial evidence of his smoking. The applicant claims that the veteran had at one time told her that he was a heavy smoker during World War II.
34. The respondent argues that given the evidence which is available and taking into account the nature of the legislation and the whole of the material, the applicant is entitled to the benefit of any doubt about this aspect of the evidence and that a hypothesis linking the veteran’s smoking to war service could be made out. The Tribunal agrees that this is a reasonable and correct application of Step 1. Therefore, Step 1 is satisfied.
35. With respect to Step 2 of Deledio, IHD is covered by SoP Instrument No 53 of 2003 as amended by Number 9 of 2004. The Tribunal therefore finds Step 2 is satisfied with respect to IHD.
36. With respect to Step 3 of Deledio the question is whether the hypothesis in Step 1 reasonable in relation to IHD.
37. In SoP Number 53 of 2003, Factor 5(f) deals with smoking which has not ceased prior to the clinical onset of ischaemic heart disease. There, the factor which must be related to service is (1) smoking at least five cigarettes per day for at least one year before clinical onset occurs, or (2) smoking at least one pack year of cigarettes before the clinical onset of IHD. According to the definition in paragraph 8, a pack year is 7,300 cigarettes.
38. Based on the evidence received, the Tribunal finds that the applicant did smoke but was a relatively light smoker. The Tribunal finds that Factor 5(f)(i) above would be satisfied, but there can be less confidence that Factor 5(f)(ii) would be satisfied. Taking account of the evidence of the applicant, the evidence of Mr Stephen Limbach and of the applicant’s daughter, but with less credibility being attached to the evidence of Mr Richard Hoareau as being indicative of the extent of the applicant’s smoking, the Tribunal does not feel that it can reject beyond reasonable doubt that the applicant may satisfy Factor 5(f)(ii). Therefore, the Tribunal finds that the veteran satisfies SoP Number 53 of 2003.
39. The evidence, that is the whole of the evidence, must be considered in light of the authorities above to determine whether there is reason to believe that there is a causal connection between the evidence and the veteran’s military service in World War II. The Tribunal finds, however, it does not believe such a causal connection exists which would result in concluding that a ‘reasonable’ hypothesis exists. That conclusion is based on the following analysis.
Is there a temporal connection?
40. The only evidence of a temporal connection is the evidence of the applicant and that of Mr Hoareau. The applicant states that the veteran himself admitted that he was a heavy smoker in World War II. However, she also said that he often was not to be believed. Mr Hoareau said that his grandfather told him that everybody smoked in World War II. However, the weight of his evidence has been diminished following his concession to Mr Stoner that his written statement and the way he described his conversations with his grandfather may have been overstated.
41. In addition, there is the evidence that the veteran did not enlist in World War II until he was 27½ years of age. By that time, most people have established a smoking pattern if an endemic pattern is likely to exist. But, in view of a concession by Mr Stoner and considering the application of the facts to the statutory law as amplified by the High Court and the Federal Court, the Tribunal accepts that as some evidence exists (although some of it is doubtful), a reasonable hypothesis exists linking the applicant’s smoking to World War II based on this temporal connection. The Tribunal finds that there is a temporal connection which would support finding that a reasonable hypothesis exists.
Is there a causal connection between the applicant’s smoking and his military service?
42. It is clear that there is certainly not sufficient information to provide a link causally from the cause of death of IHD to the veteran’s military service in World War II. Indeed, there is virtually no evidence (and certainly no medical evidence) which was provided to establish such a link.
43. For the hypothesis to be “reasonable”, it must be “….more than a mere possibility. It must be a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities” (see Repatriation Commission v Bey (1997) 79 FCR 364 at 372-373, as cited in Connors v Repatriation Commission (2000) 59 ALD 61 at 68). But the Tribunal finds that there is simply no evidence pointed to by the facts in this case which links the applicant’s death to his operational service. Section 119 is of no benefit in these circumstances, as it would require presuming evidence that is not there. The efficacy of the evidence available cannot be aligned with the medical-scientific standard with which the hypothesis must be compared and therefore, the evidence does not “uphold the hypothesis”. The Tribunal finds that the hypothesis is clearly “untenable”.
44. The Tribunal concludes that there is not a reasonable hypothesis connecting the veteran’s death and his operational service in World War II. It is unnecessary to consider Step 4 of Deledio as Step 3 has not been upheld.
45. The Tribunal therefore affirms the decision under review.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K Levy, Senior Member
Signed: Fiona Kamst
Legal Research Officer
Date/s of Hearing 10 January 2007
Date of Decision 23 February 2007
Applicant Mrs Sedgwick, herself
Respondent Mr J Stoner, departmental advocate
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