Sillitoe and Repatriation Commission
[2002] AATA 1146
•7 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1146
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/424
VETERANS' APPEALS DIVISION )
Re ESMA MARY SILLITOE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member
Date7 November 2002
PlaceSydney
Decision The tribunal sets aside the decision under review and substitutes its own decision that the applicant qualifies for a War Widow Pension with effect from 10 April 2000.
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – War Widow Pension – veteran died of ischaemic heart disease – whether ischaemic heart disease war-caused – whether veteran smoked at least 20 pack years of cigarettes up to within 20 years before clinical onset of ischaemic heart disease – whether smoking habit related to war service – decision set aside – War Widow Pension granted
Veterans' Entitlements Act 1986 ss 11(1) ("dependant"), 120(1), (3), (4), 157(2)(a)(ii), 177(2)(a), 196B, 196D
Statement of Principles 38/99 concerning ischaemic heart disease
Statement of Principles 82/99 as amended by SoPs 9/2001 and 91/2001 concerning diabetes mellitus
Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse
Statement of Principles 31/2001 concerning hypertension
Bull v Repatriation Commission (2001) 66 ALD 271
Deledio, Repatriation Commission v (1998) 49 ALD 193
Hughes. Repatriation Commission v (1990) 13 AAR 34
Kattenberg v Repatriation Commission (2002) 34 AAR 562
Marshall and Repatriation Commission, Re (AAT 3954, 30 November 1987)
Smith, Repatriation Commission v (1987) 74 ALR 537
REASONS FOR DECISION
7 November 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member
THE APPLICATION
This is an application to the Administrative Appeals Tribunal ("the tribunal") by Esma Mary Sillitoe ("the applicant"), born 28 April 1916 (T9), for review of a decision of the Veterans' Review Board ("the VRB") dated 26 February 2001 (T22) affirming a decision of the Repatriation Commission dated 25 January 2001 (T10) to the effect that the death of Milton Sillitoe ("the veteran"), who was born on 27 August 1913 and died on 18 July 1996 (T9), was not related to service. This decision meant that the applicant did not qualify for a War Widow Pension.
THE HEARINGThe tribunal convened a hearing in this matter in Sydney on 22 February 2002. Mr Mark Vincent of counsel represented the applicant. Ms Philippa Hook from the Department of Veterans' Affairs ("DVA") Advocacy Service represented the respondent. At the commencement of that hearing Mr Vincent requested an adjournment to permit the applicant to investigate certain additional possible bases of argument. The adjournment was granted and the matter resumed on 10 July 2002. The tribunal heardoral evidence from the applicant, from Dr M G Miller, a physician, and from Ms Margaret Therese Bannon, a niece of the veteran. The tribunal took into evidence the following documents:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T25) provided by the respondent.
Exhibit A1 – Applicant's Second further amended statement of facts and contentions, undated.
Exhibit A2 – Report by Dr M G Miller, physician, 25 September 2001.
Exhibit A3 – Letter dated 27 June 2002 from Dr T David to applicant's solicitors.
Exhibit R1 – Respondent's statement of facts and contentions, 19 February 2002.
Exhibit R2 – Additional documents from DVA's file on the veteran.
Exhibit R3 – Additional documents from DVA's file on the veteran.
Exhibit R4 – Complete service medical records relating to the veteran.
Exhibit R5 – Complete DVA medical file relating to the veteran.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal makes the following uncontroversial findings.
The applicant is a "dependant" of the deceased veteran as defined in s 11(1) of the Veterans' Entitlements Act 1986 ("the Act")). She was Mr Sillitoe's de jure wife. A marriage certificate dated 7 May 1942 was attached to ex R1.
The veteran served in the Australian Army ("the army") and rendered operational service from 1 October 1941 to 23 September 1948 (T2).
The applicant lodged a valid claim on 21 January 2000 (T10).
Because the applicant did not lodge an application for review with the VRB within three months of notice of the primary decision, the date of effect of any decision favourable to the applicant would be 10 April 2000 (ss 157(2)(a)(ii) and 177(2)(a) of the Act).
The standard of proof in relation to whether the veteran's death was war-caused is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to cause of death may be that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The cause of the veteran's death was certified as cerebrovascular accident suffered for "minutes" before death (T8). Other conditions present were cerebral arteriosclerosis, widespread atherosclerotic vascular disease, diabetes mellitus (suffered for "months"), chronic airways limitation (suffered for "years") and left ventricular failure (suffered for "years").
The parties agreed that the veteran's death was contributed to or accelerated by his ischaemic heart disease (ex A1, paragraph 11; ex R1, paragraph 5). The parties agreed that the ischaemic heart disease had its onset in 1978 (ex A1, paragraph 5; ex R1, paragraph 6). This reflects Dr M G Miller's assessment in his report of 25 September 2001 (ex A2/2). The tribunal did note an inquiry in 1960 (ex R5/263) on Mr Sillitoe's file suggesting that he had some ischaemic heart disease symptoms as early as then. However, that inquiry seemed to lead nowhere.
The tribunal has a duty to make up its own mind on relevant issues, however the inter-party agreements appeared satisfactory from Dr Miller's evidence and were adopted by the tribunal.
The issue thus becomes whether the ischaemic heart disease, which was the relevant cause of the veteran's death, was war-caused.
the hypothesesThe fundamental elements were the deceased veteran's smoking and alcohol use. The hypotheses raised for the applicant were as follows:
(a)As a result of his operational service the veteran smoked at least 20 pack years of cigarettes and ceased smoking within 20 years before the clinical onset of his ischaemic heart disease.
(b)As a result of his operational service the veteran smoked at least 10 pack years of cigarettes prior to the clinical onset of diabetes mellitus in 1959 and the presence of this disease contributed to the development of the veteran's ischaemic heart disease.
(c)As a result of experiencing a severe stressor during operational service the veteran suffered from alcohol dependence or alcohol abuse which was a cause of his hypertension, which in turn was a cause of his ischaemic heart disease.
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim that a veteran's death was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran. The tribunal has identified is paragraph 8 the three hypotheses raised to connect the veteran's death with his operational service.
The second step is to ascertain whether there is a relevant Statement of Principles ("SoP") as issued by the Repatriation Medical Authority under ss 196B and 196D of the Act in force. There are a number of relevant SoPs in this case. These are:
SoP 38/99 concerning ischaemic heart disease.
SoP 82/99 concerning diabetes mellitus as amended by SoP 9/2001 and SoP 91/2001.
SoP 76/98 concerning alcohol dependence or alcohol abuse.
SoP 31/2001 concerning hypertension.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will, with some exceptions, be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service.
The factors in the SoPs that had to be satisfied by one or other hypothesis as raised were:
Factor 5(a) in SoP 38/99 concerning ischaemic heart disease, ie the presence of hypertension before the clinical onset of ischaemic heart disease.
Factor 5(b) in SoP 38/99 concerning ischaemic heart disease, ie suffering from diabetes mellitus before the clinical onset of ischaemic heart disease.
Factor 5(e)(iii) in SoP 38/99 concerning ischaemic heart disease, ie smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease occurred within 20 years of the cessation of smoking.
Factor 5(c) in SoP 82/99 concerning diabetes mellitus, ie in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking had ceased, the clinical onset occurred within 10 years of cessation.
Factor 5(v) in SoP 82/99 concerning diabetes mellitus, ie in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical worsening of diabetes mellitus, and where smoking had ceased, the clinical worsening occurred within 10 years of cessation.
Factor 5(b) in SoP 76/98 concerning alcohol dependence or alcohol abuse, ie experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
Factor 5(b) in SoP 31/2001 concerning hypertension, ie suffering from alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension.
Factor 5(p) in SoP 31/2001 concerning hypertension. ie suffering from alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical worsening of hypertension.
The tribunal was presented with material relating to the veteran's smoking, alcohol consumption and experiencing of severe stressors. This was as follows.
Mrs Sillitoe, the applicant, gave evidence. She had known the veteran since childhood in Kempsey where they grew up together. They became "pals" in 1941. They played tennis together, visited friends and went on social outings. Mr Sillitoe was keen on sport, was bright and had a happy personality. Mr Sillitoe was said to be a casual smoker. His parents objected to smoking and drinking, partly because of their Methodist religious beliefs. Mrs Sillitoe never saw her husband drink before the war. Mr Sillitoe was called up in 1941. He and the applicant married in 1942. When he came home on leave he "may have drunk the odd glass of beer".
The veteran served in New Guinea. He never spoke of the war. After his discharge he was a chain smoker of Camel brand cigarettes. Mrs Sillitoe recalls him arriving home from the army with a kit bag full of Camel cigarettes. From then on Mr Sillitoe would buy two packs of cigarettes at a time. The applicant asked Mr Sillitoe not to smoke but he said he had to smoke for his nerves. Mrs Sillitoe told her husband that they could not afford cigarettes. This made Mr Sillitoe very irritable but he did not change.
Mr Sillitoe was said to have started smoking first thing in the morning. He would get up during the night and smoke a cigarette. Smoking caused Mr Sillitoe to cough but he nevertheless persevered.
Mrs Sillitoe said that, if her husband bought two packets of 20 cigarettes on a morning, he would buy two more packets between 2 and 5 pm.
It was put to Mrs Sillitoe that in 1959 Mr Sillitoe had said that he was smoking 30 cigarettes a day. Mrs Sillitoe said that it would have been more then. Mrs Sillitoe agreed that her husband ceased smoking in 1959.
There was documentary material on Mr Sillitoe's smoking. On 8 February 1989 Mr Sillitoe told a DVA doctor (T6/27) that he started smoking at age 17 in 1930, that he stopped smoking from 1933 to 1936, that he started smoking again in 1936 when he was smoking 20-30 cigarettes a day and that he stopped smoking in 1959.
On 14 March 1997 Mrs Sillitoe wrote that Mr Sillitoe's smoking habit continued until he had a lung operation in 1959 (T7/32).
On 14 March 1997 Mrs Sillitoe completed a smoking questionnaire for DVA (T7/33-35). She said that after she and the veteran completed their schooling and commenced work Mr Sillitoe was only a "social" smoker. He was a very keen sportsman, playing cricket, tennis and golf. He was keen on physical fitness. In his twenties Mr Sillitoe joined the CMF and commenced "casual" smoking, "though he gave it away for several years". "At no time pre-war was he a heavy smoker and there were never any signs of nicotine stains on his fingers". On Mr Sillitoe's return from war service he was a "very heavy smoker, smoking in excess of 50 cigarettes per day, and his fingers were heavily stained with nicotine". She commented on Mr Sillitoe's mood change (see paragraph 24 below) when he returned from the army and on his smoking during the night.
Mr Sillitoe had some mishaps with cigarettes. He several times burned a pillow when he fell asleep smoking in bed. He also burned holes in his trousers and pyjamas. These episodes were also linked to drinking.
Mrs Sillitoe said that her husband was withdrawn and irritable when he came home after discharge. He was not interested in visiting anyone. He had trouble settling down. There was no specific cause identified for these changes. He would tell Mrs Sillitoe not to harp at him. He did not sit and discuss things with Mrs Sillitoe.
After discharge the veteran never played cricket. He played a bit of golf and tennis. He said that he had lost interest in cricket and competition tennis.
Mr Sillitoe's post-war sleeping patterns were said by Mrs Sillitoe to be very uneven. He slept well on some nights but not on others.
Mrs Sillitoe told the tribunal that Mr Sillitoe had two schooners of beer each day on the way home. He would binge drink on Saturdays. He went to the hotel to listen to the races and drank there. Mrs Sillitoe told Dr Miller (ex A2/4) that Mr Sillitoe would then be ill on Sundays. Mr Sillitoe had said that he drank 12 beers a week in 1959. Mrs Sillitoe said that was very wrong. She said he drank; she told him that he was risking going into a coma; he responded by telling her not to harp at him. He was not abusive or violent. He just used nasty words, said Mrs Sillitoe.
Mrs Sillitoe recalled that when her husband was back in Australia from New Guinea but still in service he would drink at home on Saturdays but not at the barracks.
Mr Sillitoe's drinking caused problems, said Mrs Sillitoe. He did not approve of visitors coming to the house. He did not want to mix with people. Mr Sillitoe said that he smoked and drank for comfort. Smoking and drinking relaxed him. His level of worry was reduced. The applicant said that Mr Sillitoe had had no worries before service. He was deteriorating. While it helped when Mr Sillitoe ceased smoking in 1959, he seemed to drink more and began to bring beer home to consume there.
Dr M G Miller, the physician, gave evidence. He had reported on 25 September 2001 (ex A2). He relied heavily on the history presented to him by Mrs Sillitoe, whom he spoke to by telephone. He accepted that Mr Sillitoe saw action against the Japanese in New Guinea, although it was clear from Mrs Sillitoe's own evidence that she really knew nothing about Mr Sillitoe's New Guinea service. He recorded that Mr Sillitoe's diabetes was discovered in 1978 when he was admitted to hospital for a cardiac episode. A glucose tolerance test disclosed the disease. Mrs Sillitoe told Dr Miller that the diabetes had been detected in 1959 when Mr Sillitoe was hospitalised for surgery associated with his tuberculosis. Mrs Sillitoe told the tribunal that she had used sugar substitutes in the home from that time. Dr Miller noted that Mr Sillitoe was on no treatment for diabetes in 1978. In cross-examination of Mrs Sillitoe it emerged that she believed the diabetes to have been diagnosed in Concord Repatriation Hospital when Mr Sillitoe was there in 1959 for a tuberculosis operation. However, as Ms Hook pointed out, Mr Sillitoe was also at Concord in 1978 (and in 1982, the tribunal notes) for his cardiac surgery when diabetes was, without any doubt, diagnosed. There was no documentary evidence of any earlier diagnosis of diabetes. Ms Hook suggested that it was more likely that diabetes was first diagnosed in 1978.
Dr Miller appeared to place the clinical onset of hypertension as in 1948, the date of the first of many elevated blood pressure readings. The respondent accepted 1948 as the date of clinical onset of hypertension (ex R1, paragraph 10). Dr Miller considered that Mr Sillitoe suffered from alcohol abuse. He continued alcohol use despite persistent or recurrent social or interpersonal problems associated with excess alcohol consumption. Dr Miller accepted that Mr Sillitoe experienced a severe stressor within the two years immediately before the clinical onset of alcohol abuse "as he was in action against the Japanese".
In oral evidence Dr Miller made a number of points:
Having heard Mrs Sillitoe's evidence at the hearing in relation to alcohol consumption, Dr Miller did not see it as changing anything. It suggested only that Mr Sillitoe may have started drinking heavily earlier, be it before New Guinea, in New Guinea or after his return from there.
Dr Miller had recorded in his notes that Mr Sillitoe saw action against the Japanese in New Guinea.
Dr Miller relied heavily on the discord in the home as evidence that Mr Sillitoe suffered from alcohol abuse.
Dr Miller saw the clinical onset of hypertension as in 1948. He was asked about clinical worsening also. There is no definition of clinical worsening in the current SoP on hypertension. The previous SoP (25/99) defined clinical worsening in clause 8 as a clinically significant worsening of hypertension which, for example, requires a change in medication to deal with the clinical worsening. Dr Miller recorded a range of high blood pressure readings over many years as appearing in the documents. He regarded the definition of clinical worsening as satisfied.
Dr Miller considered that Mr Sillitoe consumed at least 200 g of alcohol a week.
So far as he was aware, the earliest record of diabetes was in 1982, not 1978 as he had said in his report. He had misread the Concord Hospital discharge summary for 1982 at T5, confusing it with the 1978 discharge summary at T4.
Dr Miller regarded the tests for diabetes conducted in 1982 as sufficient to establish diabetes as defined in the SoP on diabetes mellitus.
Dr Miller thought it plausible that Mr Sillitoe may have had diabetes as early as 1959. He relied on Mrs Sillitoe's recollection of using sugar substitutes from that time as his basis.
Mr Sillitoe had type 2 diabetes. For this he relied on a document at ex R2/8.
Dr Campbell, a medically qualified tribunal member, called Dr Miller's attention to T5, the Concord Hospital discharge summary dated 26 May 1982. He observed that it made no sense as a source of diagnosis of diabetes. Paragraphs 4 and 5 read:
"He has a past history of tuberculosis with left upper lobectomy in 1959. No diabetes mellitus, no renal failure. No hypertension. Positive family history with 2 sisters and 1 brother dying in their 50's-60's with myocardial infarction. He has not smoked since 1959.
"Glucose tolerance test in 1978 revealed diabetes but he has been asymptomatic and is not on treatment."
Ms Margaret Therese Bannon, the veteran's niece gave evidence. Born in 1951 she knew the veteran from family gatherings. Until she turned 18 there were inter-family visits during which Mr Sillitoe would remain outside in the car. She knew nothing of the veteran's smoking history. She saw him drink at family gatherings. He would move off and be by himself. She did see him as having consumed a great deal of alcohol on these occasions.
She spoke with the veteran from about 1970 and noted that he never spoke about the war. Even though Ms Bannon tried to prompt him to discuss the war he did not. She said he was a "rather sad man". The family thought Mr Sillitoe had a preference for isolation that was attributed to war.
In the 1980s Mrs Sillitoe won a trip. Mr Sillitoe could not fly and so did not accompany Mrs Sillitoe. He did not explain why he could not fly. Ms Bannon accompanied Mrs Sillitoe.
Ms Bannon observed that Mr Sillitoe could not cope with people coming to his home. His anxiety was too great.
Considering the above material to ascertain whether any of the hypotheses meet a SoP template, the tribunal will take the hypotheses individually.
hypothesis #1: smoking caused ischaemic heart diseaseThe hypothesis involved the propositions that the veteran ceased smoking in 1959 and his ischaemic heart disease had its clinical onset in 1978. To the extent that factor 5(e)(iii) of SoP 38/99 requires a certain consumption of cigarettes up to within 20 years of the clinical onset of ischaemic heart disease the SoP factor was satisfied. The only question was whether the hypothesis suggested that the veteran consumed 20 pack years or more of cigarettes before he gave up in 1959.
In the respondent's statement of facts and contentions (ex R1) the difference of views between the applicant and respondent resolved itself down to whether the veteran's smoking increased sufficiently on service to add up to a net increase of 20 pack years of smoking. The respondent said that the increase amounted to only 18 pack years, judging from Mrs Sillitoe's statutory declaration in T7 (discussed above in paragraph 22).
In Kattenberg v Repatriation Commission (2002) 34 AAR 562 the Federal Court held that, in applying SoP factors such as factor 5(e)(iii), it is not necessary that service account for a net increase in cigarette consumption of the magnitude required by the SoP. Operational service must only contribute to a consumption of cigarettes sufficient to satisfy the gross SoP factor. In plain terms this means that, provided Mr Sillitoe smoked at least 20 pack years of cigarettes, to which operational service conditions caused some of that consumption, then the SoP template is satisfied.
The hypothesis here was that Mr Sillitoe smoked at least 20 pack years of cigarettes up to a point within 20 years before the clinical onset of ischaemic heart disease. The SoP in paragraph 4 required that the factor had to be related to Mr Sillitoe's operational service. Mr Vincent submitted that the material suggesting that Mr Sillitoe needed to smoke to calm his nerves which were acute as a result of service was a sufficient relationship. He cited also the decision of Davies J in Repatriation Commission v Hughes (1990) 13 AAR 34 (Federal Court). In that case the veteran had died of carcinoma of the pancreas. This developed as a result of the veteran's smoking of tobacco. The tribunal held that the veteran's widow qualified for a pension because the veteran had developed his smoking habit during his period of war service. As regards the necessary connection of the development of the habit with service Davies J said at pages 37-38:
"As the standard of proof was that applicable to operational service, that is, as specified in s 120(1) and (3) of the Act, this was a sufficient description of the issue. The evidence was strong that the smoking habit which Mr Hughes had developed contributed to the carcinoma of the pancreas. Therefore, the question was whether war service contributed in a causal way to the development of that habit. It seems to me that clearly there was a reasonable hypothesis. Senior counsel pointed to my own discussion in Hamling v. Repatriation Commission (1989) 11 AAR 131 and submitted that the hypothesis must be one founded on or pointed to by the facts. But if a serviceman commences smoking during war service, then a hypothesis will readily arise that the development of the smoking habit was causally related to the war service. The connection will be pointed to by the facts of the particular serviceman's case. Proof as to precisely how and in what circumstances smoking commenced and was continued is not required. A reasonable hypothesis is sufficient. Whether the causal connection exists is then tested under the provisions of s 120(1) which requires, in the case of operational service, that the facts be found in the veteran's favour unless the contrary is established beyond reasonable doubt. The present is at least as favourable a case for the claimant in that respect as was the case considered in Law v. Repatriation Commission (1980) 29 ALR 64; (1980) 31 ALR 140; and (1981) 147 CLR 635; in which it was held that the Tribunal could not properly be satisfied beyond a reasonable doubt that there were insufficient grounds for granting the claim.
"In Hamling v. Repatriation Commission (supra), at 134-6, I discussed the nature of a reasonable hypothesis. I adopt what was there said and I need not repeat it. Counsel for the Repatriation Commission submitted in this present appeal that an hypothesis must be 'pointed to by the facts, even though not proved on the balance of probabilities', to adopt the expression of the Court in East v. Repatriation Commission (1987) 16 FCR 517 at 533. Of course that is so, and applications of the point may be seen in East's case, Hamling's case and Re Repatriation Commission and Bramston (1987) 6 AAR 410.
"Counsel went on to submit that it was not known what occurred during Mr Hughes' war service to bring about his smoking habits and submitted that the smoking and the war service may have had a mere temporal connection. Counsel submitted that there was therefore no evidence pointing to the necessary causal connection. However, this submission confuses 'hypothesis' with 'evidence'. The hypothesis is required by s 120(3). An hypothesis is an unproven theory or supposition. To be raised by the material as s 120(3) requires, it must be pointed to by the facts. In a case such as the present, this will occur if evidence is given that the veteran acquired a smoking habit while on war service away from home, when boredom, stress or the mere pressure of his peers may have encouraged him to do so. Once the hypothesis is raised, proof is considered under s 120(1) which requires the facts to be found in favour of the claimant unless there is satisfaction beyond reasonable doubt to the contrary."It is not abundantly clear that the principles endorsed in Hughes (above) are immediately applicable to Mr Sillitoe's situation. In Hughes (above) and the other case cited by Davies J in Hughes (above), Re Marshall and Repatriation Commission (AAT 3954, 30 November 1987), the veteran was thought to have commenced smoking only after enlisting in the forces. In the present case the documentary evidence in T6/27 clarifies that Mr Sillitoe was a significant smoker by 1936, at least as far as Mr Sillitoe himself was concerned in 1989 when he provided the material at T6/27. In that document he did not suggest that his smoking increased during the war. The inference was that smoking remained at a level of about 30 a day from 1936 to 1959. The tribunal considers, however, that, at this stage of the process, where discussion is hypothetical, the applicant should be extended the benefit of the tribunal's doubt.
It appears then that step 3 of the Deledio case (above) is satisfied. The hypothesis was that the veteran smoked the required number of cigarettes, that consumption during service contributed to that required total and that there were aspects of service that caused the veteran to continue or increase his smoking. The Federal Court has held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. In the full Federal Court decision of Bull v Repatriation Commission (2001) 66 ALD 271 (at pages 276, 277, 282 and 283) Emmett and Allsop JJ said:
"18 It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. …
…
"21 There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.
"22 The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. …
…
"41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:
'A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.'"
All things considered, the tribunal has concluded that Mr Sillitoe's smoking habit should be regarded as war-caused, largely because of the rationale in the Hughes decision (above) in association with the Kattenberg decision (above). Although the tribunal is hesitant to give effect to a hypothesis based on such slender, or doubtfully existent, propositions of fact, in the particular context of a veteran's alleged smoking, the Federal Court authorities appear to compel a conclusion beneficial to the applicant.
Moving on to consider step four of Deledio (above), the tribunal must decide whether it is satisfied beyond reasonable doubt that the veteran's ischaemic heart disease did not arise from a war-caused injury. The tribunal has its doubts about the link between war service, smoking and Mr Sillitoe's ischaemic heart disease, but there is insufficient basis for the tribunal to be satisfied beyond reasonable doubt that the ischaemic heart disease was not war-caused or that one of the factual elements of the hypothesis was not applicable.
CONCLUSIONFrom testing the first of the three hypotheses the tribunal has found that the veteran's smoking habit was relevantly war-caused and contributed to the development of ischaemic heart disease, the cause of Mr Sillitoe's death. This means that Mrs Sillitoe qualifies for a War Widow Pension. This also means that it is unnecessary to assess the hypotheses based on diabetes, alcohol abuse and hypertension.
DECISIONThe tribunal sets aside the decision under review and substitutes its own decision that the applicant qualifies for a War Widow Pension with effect from 10 April 2000.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDates of hearing 22 February 2002 and 10 July 2002
Date of decision 7 November 2002
Counsel for the applicant Mr M Vincent
Solicitor for the applicant Vardanega Roberts Solicitors
Counsel for the respondent Ms P Hook, DVA Advocacy Service
Solicitor for the respondent Mr J Marsh, DVA
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