Simpson and Repatriation Commission

[2005] AATA 171

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 171

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1320

VETERANS' APPEALS DIVISION		)
Re		RUBY SIMPSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date28 February 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Dr J D Campbell  Member

CATCHWORDS

VETERANS ENTITLEMENTS – widow’s pension - eligible service - war caused conditions – kind of death - whether death arose out of and/or was contributed to by service - refusal to grant pension affirmed.

Veterans' Entitlements Act 1986 sections 8, 9, 14, 120, 120A

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Law (1981) 147 CLR 635

O'Brien v Repatriation Commission (1984) 53 ALR 477

Repatriation Commission v O'Brien (1985) 155 CLR 422

Repatriation Commission v Tuite (1993) 39 FCR 540

Repatriation Commission v Bey (1997) 149 ALR 721

Repatriation Commission v Gosenwinckel [1999] FCA 1273

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Hancock [2003] FCA 711

REASONS FOR DECISION

28 February 2005 Dr J D Campbell, Member

1.      Mrs Ruby Simpson (“the Applicant”) seeks a review of the decision of the Repatriation Commission (“the Respondent”) dated 25 July 2002 which refused her claim that the death of her late husband, Mr Jack Simpson, was related to his service.  This decision had been reviewed by the Veterans’ Review Board (“VRB”) and affirmed in a decision dated 22 May 2003.

background

2.      The late veteran, Mr Simpson, served in the Australian Army from 13 January 1942 to 8 December 1945. As a driver he saw service in New South Wales and Queensland. He suffered from diarrhoea and a closed head injury during service, as well as abdominal pain.

3.      Mr Simpson died on 12 September 1998 with the cause of death being detailed on the death certificate as carcinoma large bowel – duration two years.

4.      Mr Simpson, at the time of his death, had the following conditions accepted as war-caused:

·Scar on head

·Duodenal ulcer and functional intestinal disorder

·Diverticular disease

·Tinea

5.The following conditions had not being accepted as war-caused:

·Personality disorder

·Allergic rhinitis

·Cervical spondylosis

·Malignant neoplasm of the colon with metastatic liver disease

·Hypertension

·Chronic airways limitation

·Dementia with secondary depressive & anxiety features

issues

6.The relevant issues in this matter are:

·what war-caused conditions Mr Simpson suffered at the time of his death

·the kind of death suffered by Mr Simpson

·whether Mr Simpson’s death arose out of and/or was contributed to by his service.

decision

7.For the reasons detailed later in this decision, I find that :

(a)Mr Simpson’s smoking habit did not arise out of nor was attributable to his eligible service; and

(b)Mr Simpson’s alcohol habit did not arise out of nor was attributable to his eligible service; and

(c)the kind of death suffered by Mr Simpson was malignant disease of the colon with metastatic liver disease; and

(d)the kind of death suffered by the Mr Simpson was not causally related to his period of eligible service; and

(e)having concluded that the kind of death was not war-caused, Mrs Simpson’s claim for a pension must be refused.

evidence of mrs simpson

8.Mrs Simpson detailed the following information about her late husband:

·     He entered the Army as a young man and suffered illness by way of a gastrointestinal functional disorder during his four years of service. After service he was treated for anxiety, stress and hypertension with Librum and Valium. She noted a change in his life as a consequence of stress and a special diet.

·     Prior to the war, when she met him in 1939, he would have an occasional cigarette. But when she met him again in 1946 he had increased his use of cigarettes significantly. She believed the increase was due to pressure, boredom, being a young fellow and his gastrointestinal disturbance.

·     He quit smoking in 1954 until 1956/57, and smoked only an occasional cigarette on social occasions during this period. He resumed smoking again in 1956/57 and ceased in 1981, with only an occasional cigarette thereafter. He was diagnosed with chronic obstructive airways disease in 1998 and colon cancer in 1992.

·     When she first met him, he would share a couple of bottles of beer with his friends and was a happy go lucky sort of fellow.  After the war he had changed and his drinking had increased and was a habit.

·     She met him again in 1946 when he was separated but not divorced from his wife, whom he had married in late December 1943.  Mrs Simpson and the late veteran were married in March 1950 and had five children. Mrs Simpson believed that Mr Simpson found the issues surrounding his separation and divorce from his first wife stressful. 

mrs austin

9.      Mrs Austin, born 1954 and daughter of Mr Simpson, told the Tribunal that her childhood was not really happy. She remembers her father as being a heavy drinker and smoker during that period, with his employment being in succession, boot maker, boiler cleaner and maintenance man.

file evidence

10.     In relation to the condition of colon cancer, there is clear evidence that a malignant polyp was discovered at colonoscopy, with Mr Simpson undergoing a right hemicolectomy and later (November 1994) a partial liver re-section and cryotherapy. He remained on chemotherapy for three years, prior to being admitted to Gosford hospital with some acute large bowel obstruction in September 1997. A palliative re-section was undertaken with metastatic modules being noted in the small bowel mesentery.  In August 1998 he was again admitted to Gosford Hospital and biopsy from the gastric antrum revealed a metastatic deposit.  Mr Simpson died at home on 12 September 1998.

11.     Dr Langlands opined, in a report dated 4 December 2001, that Mr Simpson died from a colonic carcinoma with metastases to the liver which was diagnosed and treated in 1992.  Dr Langlands also opined that the accepted disabilities of duodenal ulcer, functional intestinal disorder and diverticular disease were not precursors of the cancer of the colon.

12.     The clinical notes for the three admissions to St George Hospital confirm the diagnosis of colonic cancer with hepatitis metastases in 1994, with the re-section undertaken by Professor Morris in November 1994.

13.     I also note that chronic obstructive airways disease was diagnosed in May 1998 by Dr Miller and that some 10 months earlier Mr Simpson had been considered fit enough to undergo a palliative bowel re-section.  Professor Langlands considered that it was improbable that the chronic obstructive airways disease was a contributing factor to his death (T15).

smoking

14.     The written records in evidence before the Tribunal detail the following material in relation to Mr Simpson’s smoking history:

·     14 May 1964 – Medical History Sheet Repatriation Department (T4, p.21): - … “non smoker”

·     23 May 1964 – letter to Dr Chancellor from Repatriation Department (T5, p.24): “gave up smoking as it seemed to upset his stomach”

·     12 October 1966 – Medical History Sheet Repatriation Department (T6, p.27): “smokes – nil”

·     25 January 1982 – Medical History Sheet Repatriation Department (T7, p.30): “Smoking commenced = 14 years of age. Smoked until 1954 because it made want to vomit and aggravated a stomach condition. Mainly ‘rolled his own’. Averaging 3oz/veek.”

·     5 April 1994 – Gosford Hospital Clinical Notes (Exhibit R8): “cigarettes 15 pack years of cigarettes; ceased 40 years ago”

·     17 October 1994 - St George Hospital Clinical Notes Vol.1 p.4 (Exhibit R1): “Ex Smoker   QUIT 40 yrs ago.”

·     14 November 1994 - St George Hospital Clinical Notes Vol.2 p.12 (Exhibit R1): “ex. smoker ceased 40 yrs ago.”

·     14 December 1994 - St George Hospital Clinical Notes Vol.3 p.7 (Exhibit R1):  “cigs nil.”

·     26 December 1994 - Gosford Hospital Clinical Notes p.199 (Exhibit R8): “Cigarettes – nil.”

·     26 June 1995 - St George Hospital Clinical Notes Vol.3 p.44 (Exhibit R1): “stopped smoking 40 years ago.”

·     23 August 1996 - Claimant Report – Cigarette Smoking (T10, p.40): “started smoking … April 1942 …  service induced … 20 per day … increased to 35 + per day … ceased 1988.”

·     5 September 1996 - Claimant Report (T9, p.38): “started [smoking} approx. April 1942 … pressure and nerves … Smoked about 20 per day; started on two oz ‘Log Cabin’ per week of log cabin, and increased as time went on … [ceased smoking] about 10 years ago.”

·     10 September 1997 - Gosford Hospital Clinical Notes p.164 (Exhibit R8): “Smoked since ago 16 years, quit 40 years ago, smoked 3-4 oz/week.”

·     21 September 1997 - Gosford Hospital Clinical Notes p.85 (Exhibit R8): “cigarettes -nil.”

·     2 August 1998 - Gosford Hospital Clinical Notes p.15 (Exhibit R8): “Ex- Smoker ceased 44 years ago.”

·     23 November 1999 - Medical Note Dr Leong (T14, p.64): “Mr Simpson was a heavy smoker and drinker during [the period 1967 until 1986].”

·     14 August 2000 - Veterans’ Review Board (T14): “Mrs Simpson was also to state that the veteran stopped smoking on medical advice in 1954 but started again in 1957 and continued … until 1982.”

·     4 June 2002 - Widows’ Report – cigarette smoking (T16): commenced smoking after enlisting in the Army in 1942 because of boredom, mateship and stress. Occasional cigarette before the war and in 1946 he smoked 20 cigarettes a day plus 2oz of tobacco.  He tried to stop in about 1950.

·     8 July 2002 – Ruby May Simpson and Repatriation Commission [2002] AATA 608: Mrs Simpson is reported as stating that Mr Simpson ceased smoking in 1954, had an occasional social cigarette thereafter, and after a couple of years she would notice him smoking in the yard.

·     22 May 2003 - Veterans' Review Board (T23): Dr Langlands reported that Mrs Simpson had told him that Mr Simpson ceased smoking in 1982.

·     Clinical Notes of Dr Leong (Exhibit R5):  Mr Simpson consulted Dr Leong on 51 occasions approximately between 24 May 1965 and 29 October 1986. Despite recording many complaints of abdominal discomfort and pain together with investigation and treatment over the 21 years, there is no mention in the notes of Mr Simpson’s smoking or alcohol habits.

·     Clinical Notes of Dr Kam (Exhibit R3): Mr Simpson consulted Dr Kam on 68 occasions between 27 December 1986 and 5 December 1997. Despite recording many complaints of abdominal pain, discomfort and diarrhoea, there is no mention in the notes of Mr Simpson’s smoking or alcohol habits.

·     Clinical Notes of Dr Bramston (Exhibit R6): Mr Simpson consulted Dr Bramston on 28 occasions between 3 August 1996 and 13 August 1998. No mention is made in the notes of Mr Simpson’s smoking or alcohol habits.

alcohol

15.     The written records in evidence before the Tribunal detail Mr Simpson’s history of the use of alcohol:

·     His service record (T3, pp.14-17) does not detail any offence relating to alcohol during his service between 13 January 1942 and 8 December 1945.

·     14 May 1964 - Medical History Sheet (T4, p.21): notes alcohol intake as “2-3 schooners / day”

·     23 May 1964 - letter to Dr Chancellor (T5, p.24): “No convictions for [alcohol] in civil life. Has “two or three” on way home most nights.”

·     12 October 1966 - Medical History Sheet (T6, p.27): “alcohol – several beers /day”.

·     25 January 1982 Medical History and Examination (T7, p.30): “alcohol – started approximately 17 or 18 years.  Always had a drink at canteen. Classes himself as a medium drinker – couple of schooners /night. Still drinking depending on state of his stomach. Averages 3-4 schooners /day if alright.  Weekends variable.”

·     5 April 1994 - Gosford Hospital Clinical Notes p.247 (Exhibit R8): “alcohol 15gms/day previously 45grams/day”.

·     17 October 1994 - St George Hospital Clinical Notes Vol.1, p.4 (Exhibit R1) ”alcohol: 10-20grams/day for past six months”

·      14 November 1994 - St George Hospital Clinical Notes Vol.2, p.12 (Exhibit R1): “nil [alcohol] for last two years; before 50-60gms/day

·     18 November 1994 - St George Hospital Clinical Notes Vol.2, p.26, (Exhibit R1): alcohol 4 schooners /day (60g/day) heavy alcohol … ingestion.”

·     14 December 1994 - St George Hospital Clinical Notes Vol.3, p.7, (Exhibit R1): “alcohol – rarely”

·     26 December 1994 - Gosford Hospital Clinical Notes p.199 (Exhibit R8): “alcohol intake -  non-drinker”

·     22 February 1995 - Alcohol Questionnaire (T8, p.36): In this questionnaire, Mr Simpson stated that he commenced drinking alcohol socially in 1942 (3-4 beers per day) and that he would drink as much as he could acquire, the increase being attributable to separation from family, stressful service and rations.  His drinking habit increased after service, as he was able to get more alcohol and that he had acquired the taste and he was addicted to it. Stated he was still drinking two to three beers per day.

·     26 June 1995 - St George Hospital Clinical Notes Vol.3, p.44 (Exhibit R1)No mention of his drinking habit.

·     29 August 1997 - Claimant – alcohol Questionnaire (T11, p.42):  Mr Simpson stated that he started drinking in late 1942 because of stressful service, with an average daily intake of three to four beers. In 1943 he started to drink more because of stressful service and mateship.  After service he started to drink more because he liked the taste of alcohol and is still drinking three to four beers a day plus wine at night.

·     10 September 1997 - Gosford Hospital Clinical Notes (p.164, Exhibit R8): “daily alcohol intake 10 grams … Previous alcohol abuse greater than five years ago. No alcohol withdrawal scale.”

·     21 September 1997 - Gosford Hospital Clinical Notes (p.85, Exhibit R8): “daily alcohol intake - Nil, Previous alcohol abuse - No”.

·     2 August 1998 - Gosford Hospital Clinical Notes (p.15, Exhibit R8): “heavy alcohol in past, down over last six years, now minimal (one port at night).”

·     14 August 2000 - Veterans' Review Board (T14, p.61): no further significant material re alcohol noted.”

·     4 June 2002 - Widow’s Report Alcohol Questionnaire (T17, p.72): Mrs. Simpson stated that her husband commenced drinking after enlisting in the Army in 1942 because of boredom, mateship, stress and stomach pain at the rate of three to four schooners of beer every day.  His intake increased to four to five and later six to seven schooners of beer plus wine and spirits while in the Army and later through his life. Mrs Simpson noted that he was still drinking three to four schooners of beer a day and port prior to his death.

·        8 July 2002 - Ruby May Simpson and Repatriation Commission [2002] AATA 608: No new material of significance relating to Veterans alcohol consumption adduced.

·     22 May 2003 - Veterans' Review Board (T23): Nil significant new material relating to Veteran’s alcohol consumption adduced.

·     1 October 2003 - Letter from Dr Karalasingham stating that his predecessor, Dr Sira, had treated Mr Simpson for hypertension and stress contributed to by high alcohol intake and heavy smoking.

consideration and findings

16.     Mr Simpson’s military service was as an Army driver stationed in New South Wales and Queensland.  Based on the available evidence, I conclude that Mr Simpson’s period of military service was relatively routine.  I note that Mr Simpson did not marry his first wife until after 23 months of service and that his service records do not display any record which could be construed as the late veteran experiencing significant family disharmony during his period of service.  It is my finding that, on the evidence before the Tribunal, Mr Simpson’s war service could not be considered as being stressful.  Further, in light of the geographical nature and periods of his postings, I conclude that his period of service was eligible service.

17.     I have been particular in detailing both the use of tobacco and alcohol by Mr Simpson in order to address the main thrust of the Applicant’s contentions, namely that Mr Simpson had a war-caused smoking habit and a war-caused alcohol habit, which may or may not amount to alcohol abuse and/or alcohol dependence.

18.     I now address the issue of what conditions Mr Simpson suffered that are relevant to determining this matter. I have to be satisfied on the balance of probabilities that such conditions existed (Repatriation Commission v Gosenwinckel [1999] FCA 1273, Benjamin v Repatriation Commission (2001) 70 ALD 622). I have detailed briefly the circumstances leading to Mr Simpson’s death and, from all the clinical material before the Tribunal, I conclude that Mr Simpson suffered from a carcinoma of the colon with widespread metastases, for which he had undergone partial liver re-section, cryotherapy, chemotherapy and radiotherapy. Further I conclude that the clinical onset was in 1992.

19.     Having particularised Mr Simpson’s smoking history I find, on the balance of probabilities, that he had a smoking habit. In examining the clinical history of the smoking habit I note the considerable inconsistencies that exist in relation to commencement, increase and cessation.  In two written history statements of 25 January 1982 and 10 September 1997, Mr Simpson stated that he commenced smoking at age 14 and age 16 respectively, when employed as either a shearer and/or shop assistant. Mrs Simpson acknowledges in some statements that while he may have started smoking at a young age, he was only smoking an occasional cigarette.  I also note the claimant reports of 23 August 1996 and 5 September 1996 and the widow’s report of 4 June 2002 detailing Mr Simpson as commencing smoking in April 1942 and after enlistment. I note that such material is clearly inconsistent with the earlier material and has been put forward with a claim for pension entitlement. In view of Mrs Simpson’s recognition that Mr Simpson was smoking before his enlistment and his own statements as to commencement (given at a time when a pension claim was not an issue), I conclude that Mr SImpson commenced smoking well prior to his enlistment in 1942.

20.     In terms of increase in habit I note the evidence of Mr SImpson that he smoked 20 cigarettes a day in April 1942 (claimant reports 23 August and 5 September 1996 and widow’s report of 4 June 2002). It would appear from the same three reports that there was an increase as time went by, although it is noted in the widow’s report, that in 1946, when she again associated with Mr Simpson, he was smoking about 20 cigarettes a day, plus some 2ozs of tobacco over a non defined period. Mrs Simpson suggested that by 1946 Mr Simpson had significantly increased his use of tobacco however, the evidence at best is confusing as to the quantum of cigarettes smoked prior to his service, Therefore, on the balance of probabilities I find that he was smoking some 20 cigarettes a day during his service and that this may have been an increase on his pre-service smoking habit..

21.     After considering the litany of apparent inconsistency in the evidence regarding Mr Simpson’s smoking habit, I conclude that Mr SImpson ceased smoking in 1954, recommencing in 1957, smoking inconsistently thereafter up to 1981 when he ceased.  I am unable to determine any quantum of cigarettes smoked after 1954 with any degree of certainty, as the inconsistent history does not provide such a foundation. Such a finding relies on the documented evidence noted at the relevant periods and places less reliance on generalisations made by doctors in 2003, many years after having ceased treating Mr Simpson, with statements made in the absence of clinical notes pointing to a smoking habit, despite the presence of a duodenal ulcer, in which continuance of smoking is contraindicated.

22.     In the circumstances of Mr Simpson’s smoking habit, such circumstances having been established on the balance of probabilities, I conclude that by the time of cessation of his smoking habit in 1954, Mr Simpson had consumed at least 15 pack years of cigarettes. I am unable to determine the pack years of cigarettes consumption thereafter in the light of the conflicting evidence up to 1981.

23.     In summary I find that Mr Simpson commenced smoking some years prior to his enlistment; that a smoking habit was in existence at the time of his enlistment; that he smoked 20 plus cigarettes a day during his service and this habit continued post service to 1954 with some evidence of an increase in his smoking consumption over time. The evidence is inconsistent as to his smoking activity and the quantum smoked between 1957 and 1981. I am satisfied that he smoked at least 15 pack years up to 1954.

24.     In addressing the issue of alcohol use by  I note the raised information detailed in paragraph 15 of this decision. In light of this material I conclude that Mr Simpson commenced drinking prior to his enlistment. Further during his period of service he increased his daily use of alcohol, and again on leaving the service. I also conclude that he continued to drink at a daily rate exceeding four schooners of beer until a few years prior to his death, there being some evidence of a decrease in usage from 1994 onwards.

25.     In addressing the issue of whether Mr Simpson suffered from alcohol abuse or alcohol dependence, I note the history of alcohol intake over time and with an increase in daily usage as described by his wife from 1943. I note that there is neither a history of military discipline nor a civil conviction for alcohol misuse by Mr SImpson, nor is there a history of a severe stressor or stressor consistent with what is necessary for a diagnosis of alcohol abuse or dependence.  I note his first marriage occurred in December 1943, and that by then his use of alcohol was well established.

26.     In such circumstances I am unable, on the balance of probabilities, to conclude that Mr Simpson suffered from alcohol abuse or dependence.  At best I am able to find is that he commenced drinking prior to the war, increased his daily usage of alcohol during the war and again after the war, with an increased usage remaining to 1994, with some decrease in usage between then and his death in 1998. In terms of absolute quantities of alcohol I would conclude that Mr Simpson was drinking a minimum of 21.9 kg a year between 1942 and 1992, if his daily intake was a minimum of four schooners of beer a day.

27.     In summary I have concluded that, on the balance of probabilities, Mr Simpson suffered from carcinoma of the colon with metastases to liver and elsewhere in his body. I have also concluded that Mr SImpson had a smoking habit, consuming at least 15 pack years of cigarettes prior to 1954 and an indeterminate amount between 1957 and 1981. Further Mr SImpson had an alcohol habit, during which he consumed a minimum of 21.9 kg per year between 1942 and 1992.

28.     Following a careful examination of all the material I conclude, on the balance of probabilities, that the kind of death suffered by Mr SImpson was that of carcinoma of the colon with metastases to the liver and elsewhere in his body (cervical spine, gastric antrum). (Hancock v Repatriation Commission [2003] FCA 711) Further I note that there are no other diagnoses/conditions documented in evidence in the hospital or medical practitioner files which would indicate and permit a finding, on the balance of probabilities, that they had made a contribution to the kind of death suffered by Mr Simpson.

causal relationship

29.     With the kind of death suffered by Mr Simpson having been determined, I must now turn to addressing whether there is any causal connection arising out of or attributable to Mr SImpson’s service and the kind of death suffered. Pursuant to subsection 196B(2) of the Act the Repatriation Medical Authority has issued a Statement of Principles (SOP) Instrument No.2 of 2004 concerning Malignant Neoplasm of the colorectum. This is the current SOP having replaced SOP Instrument No.24 of 1996 as amended by Instrument No.6 of 1998, which was current at the time of the original decision.  I note that in this matter, while it is appropriate to consider in the first instant the current SOP, the factors to be considered vary between the two SOPs only in so much as quantity and duration, and while both are relevant, only become significant if, on the balance of probabilities, I conclude that the cigarette habit and the alcohol consumption habit arose out of or were attributable to service.

30.     The relevant factors to be considered in SOP Instrument No.2 of 2004 are factors 5:

“…

(b)Smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of malignant neoplasm of the colorectum and

(i)Smoking commenced at least 20 years before the clinical onset of malignant neoplasm of the colorectum; and

(ii)Where smoking has ceased, the clinical onset has occurred within 30 years of cessation. 

(c) drinking at least 250kg of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum; or

…”

31.     While earlier I have spent time discussing the clinical onset of Mr Simpon’s carcinoma of the colon (1992), the smoking history and quantitative assessment (15 pack years of cigarettes prior to 1954 and an indeterminate amount thereafter to 1981) and alcohol consumption (21.9 kg per year  between 1942 and 1994 with a decrease in usage thereafter to his death), I consider that the main issue of this decision is whether Mr SImpson’s smoking habit and alcohol usage habit arose out of or were attributable to his war service. In addressing this issue I note that, as Mr SImpson’s service is classified as eligible service, the standard of proof is one of reasonable satisfaction pursuant to section 120(4) of the Act. Further I note the principles nominated in earlier cases, namely in Repatriation Commission v Law (1980) 31 ALR 140, the Full Court at pp.150-151:

“In Section 101(1)(b) the words “arising out of” require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be immediate, direct or approximate or by saying it connotes a real, sole or dominant cause.

The Act does not say death which is caused by or results from his war service, phrases which might connote approximate causal relationship. The expression “risen out of” is satisfied if some less approximate causal relationship is established. Of course the suggested relationship which is fanciful is not sufficient and a suggested relationship may be so tenuous as to preclude its consideration as answering the description, arising out of.”

Such was the subject of consideration by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 and impliedly by approved by Aitken J. at p.645, with whom the other judges agreed.

32.Further in O’Brien v Repatriation Commission (1984) 53 ALR 477 the Full Court stated:

“The Court also said (at p 151), it seems clear that the expression ‘attributable to’ in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show attributability if the cause is one of a number of causes provided it is a contributing cause.  Under section 101(1)(b) it is sufficient to show attributability if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.”

33.Later at pp.504-505, the Full Court stated:

“If there is no material in respect of a fact, or if the material is neutral in the sense that it leaves the existence of the fact unknown, there is no rational basis for a choice between the conclusion that the fact does exist and the conclusion that it does not. The non existence of the fact is not the only rational conclusion. There is no need that there also be material which points to a ‘real’ possibility of the existence of that fact. That ‘real’ possibility is left open by the evidence.”

34.I note that this issue was approved in the main by the majority of the High Court in Repatriation Commission v O’Brien (1985) 155 CLR 422. This decision led to an amendment of the relevant act in 1986, which introduced the concept for the material ‘to point to’ each aspect of the reasonable hypothesis connecting injury with operational service (Repatriation Commission v Bey (1997) 149 ALR 721).

35.Finally I note the decision of the Full Federal Court in Repatriation Commission v Tuite (1993) 39 FCR 540 where at p.542 Davies J stated:

“Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9(1)(b), but not under ss 9(1)(a) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a servicemen’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred.

If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision maker, is whether the eligible war service contributed causally to the injury or disease.”

36.     In addressing the totality of the material in this matter, I note the absence of any material which allows me to better understand the nature and circumstances of Mr SImpon’s period of eligible service. I observe that he served as a driver in New South Wales until April 1943 and thereafter as a driver in Queensland until his discharge in 1945, whereupon he worked as a rabbit trapper with his father for a period in excess of a year.  I note that he was married in December 1943 and at some later time (dates unknown) separated and divorced his first wife prior to his second marriage in 1950.  While issues surrounding his separation from his first wife may have created particular tensions, I again observe an absence of any information that such circumstances created a particular psychological response leading to an increase in his consumption of cigarettes or alcohol. Similarly I note an absence of any other details of a stressful event or circumstance that Mr SImpson may have been confronted with during his service or any evidence that he was stressed by events or circumstances that occurred during his period of eligible service. Further any records which are before the Tribunal would indicate that Mr SImpson had an uneventful service life, was not exposed to stressful circumstances (service records) and was not stressed by his period of eligible service (Departmental psychiatric reports 1951 and 1964). After service, it is evident that from 1951 onwards Mr SImpson was investigated for episodic abdominal pain with diverticular disease, duodenal ulcer (1971) and functional bowel disorder (1964) being diagnosed and accepted as war-caused over a period of twenty years post service.

37.     In considering the issue of smoking I have already concluded that Mr SImpson had commenced smoking prior to his enlistment. I have already acknowledged  that his smoking habit may well have increased during his period of eligible service; at various points in time Mr SImpson has claimed that such increase was due to peer pressure, and nerves (claimant statement 5 September 1996), service induced (claimant statement 23 August 1996), boredom, mateship and stress (widow’s  statement 4 June 2002).

38.     I note that in both O’Brien (1985) (supra) and Tuite (supra) particular details of the veteran’s service were before the decision maker, which in turn allowed the decision maker to assess his claim against a background of knowledge of what circumstances the veteran had experienced, and his response to such circumstances. It is also to be noted that both cases were considered prior to the introduction of the SOP regime, with the requirement in cases involving eligible service that a decision maker be reasonably satisfied that the eligible war service contributed causally to the injury or disease.

39.     In the absence of any detailed factual knowledge/information concerning the circumstances of Mr SImpon’s eligible service, including the degree of access to cigarettes and further any actual knowledge/information concerning the effect of this service upon Mr SImpson, I conclude that, on the balance of probabilities I am unable to find that Mr Simpson’s war service contributed causally to his increase in cigarette smoking both during service and thereafter with cessation of smoking first occurring in 1954 with an inconsistent smoking history from 1957 onwards.

40.     In addressing the issue of alcohol usage, a similar set of evidentiary issues arise. While I have already concluded that Mr Simpson commenced using alcohol prior to enlistment, and increased his usage both during service and after service, I note that the reasons given for same include availability, separation from family, stressful service and rations, acquired the taste (claimants statement of 22 February 1995), mateship, liked the taste (claimants statement of 29 May 1997), boredom, mateship, stress and later stomach pain (widow’s statement of 4 June 2002). I note the first evidence of stomach pains appears in the material from 1951 onwards, with the attending specialists noting two episodes of dysenteric disorder during the Mr Simpson’s service.

41.     For the same reasons that I have detailed in relation to smoking, I am not satisfied on the balance of probabilities that Mr Simpson’s increase in alcohol usage both during his service and after was related to his service. In making such a finding I again acknowledge the absence of particular material pointing to the circumstances of Mr Simpson’s eligible service and his response to such circumstances that would allow an appreciation of any contribution his period of eligible service may have made to his alcohol and cigarette usage both during service and post service. In so stating, I believe that for a successful outcome there must be material before the Tribunal that on the balance of probabilities demonstrates an operative cause arising out of or attributable  to Mr SImpson’s period of eligible service which has contributed to his smoking and/or alcohol habit or increase in that habit. To state that the reasons for the development of the habit or an increase in the habit without the necessary foundation as to how the service gave rise to such reasons is not sufficient, particularly when the reasons are given some 50 years after the period of service.  In such situations a temporal association is clearly insufficient.

42.     In summary, I conclude, for the reasons previously detailed, that Mr SImpson’s smoking and alcohol habits, which increased during his period of eligible service and thereafter, were not war caused, in that they did not arise out of or were not attributable to his period of eligible service.

43.     In such circumstances, I further conclude that the death of the Mr Simpson from metastatic malignant disease of the colon was not war caused, in that factors 5(b) and 5(c) of the SOP Instrument No.2 of 2004 were not satisfied on the balance of probabilities as the smoking and alcohol habits were found not to be war-caused.

44.     I affirm the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J. D Campbell, Member  

Signed: A. Krilis
           Associate

Date/s of Hearing  26 November 2004
Date of Decision  28 February 2005
Representative for the Applicant    Self
Advocate for the Respondent        Shontelle Kenny