Simpson and Repatriation Commission

[2002] AATA 608

DECISION AND REASONS FOR DECISION [2002] AATA 608

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2001/105

VETERANS' APPEALS DIVISION          )          

Re      RUBY MAY SIMPSON      

Applicant

And    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal       Senior Member M D Allen Dr M E C Thorpe, Member Mr S Webb, Member          

Date9 July 2002

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No   N2001/105           

)  
VETERANS' APPEALS DIVISION                )

Re:       RUBY MAY SIMPSON
  Applicant

And:     REPATRIATION COMMISSION

Respondent

DECISION

Tribunal              Senior Member M D Allen
  Dr M E C Thorpe, Member
  Mr S Webb, Member

Date  9 July 2002

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)             M D ALLEN
   ....................................
  Presiding Member
CATCHWORDS

VETERANS' ENTITLEMENTS: Death of Veteran from cancer of the colon. Whether caused or contributed by war caused habituation to alcohol and tobacco. Ceased smoking in 1954 and resumed in 1957. No evidence suggesting resumption of smoking war caused. Tribunal not satisfied alcohol habituation causally linked to war service.
Veterans' Entitlements Act 1986 – ss 120(4), s120B
Repatriation Commission V Tuite [1992] 17 AAR 158
O'Brien v Repatriation Commission [1984] 1 FCR 472

REASONS FOR DECISION

Senior Member M D Allen
  Dr M E C Thorpe, Member
  Mr S Webb, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen
  Dr M E C Thorpe, Member
  Mr S Webb, Member

Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  8 July 2002
Date of Decision  9 July 2002
Counsel for Applicant                 Mr C Colborne

Solicitor for Applicant                  Vardanega Roberts Solicitors
Representative for Respondent Ms P Hook, Department of Veterans' Affairs

DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/105 of 2002
By  MR M.D. ALLEN, SENIOR MEMBER,
DR M E C THORPE, MEMBER, AND MR S WEBB, MEMBER
MRS R. SIMPSON and REPATRIATION COMMISSION
SYDNEY, 8 JULY 2002

MR ALLEN: Pursuant to an application lodged with the Tribunal on 2 April 2001 to which an extension of time was granted the applicant being the legal personal representative of Jack Simpson, deceased, seeks review of a determination by a Veterans' Review Board on 14 August 2001 that affirmed a decision of the respondent Repatriation Commission refusing a claim for chronic airways limitation, dementia with secondary depressive anxiety features, hypertension and malignant neoplasm of the colon.

The veteran served in the army during the period of the Second World War and as a consequence had war service but although he enlisted in the second AIF for service outside Australia the exigencies of his service was such that he never served outside of mainland Australia.  That has effect in this matter in that the veteran as a result of serving solely within Australia did not have operational service, consequently the standard of proof in this matter is that mandated by subsection 4 of section 120 of the Veterans' Act 1986 as amended, namely:

The standard of proof is that to the Tribunal's reasonable satisfaction.

The term reasonable satisfaction has been equated to the civil standard of proof namely that of proof on the balance of probabilities, see the decision of the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR at 327.

Section 120B of the Veteran's Entitlements Act provides that this Tribunal can only be reasonably satisfied that a disease contracted by a person was war caused if the material before it conforms to a so called statement of principles.  Subsection 6 of section 120 provides that neither party to this review bears any onus of proof.

At the outset counsel for the applicant conceded that the applicant could not meet the provisions of any statement of principle applicable which related to hypertension, consequently the applicant's claim in relation to that disease was withdrawn from consideration by the Tribunal.

So far as the disease of malignant neoplasm of the colon or in layman's term cancer of the colon is concerned the applicable statement of principle is instrument number 24 of 1996 for cancer of the colon and the applicant points to factor 5C, that is:

That the deceased had been drinking at least 500 kilograms of alcohol contained within alcoholic drinks within any 25 year period before the clinical onset of malignant neoplasm of the colon.

The respondent as I understand it conceded that the degree of alcohol consumption had been met but disputed the argument that the deceased veteran's alcohol consumption had been war caused.  So far as chronic airways limitation is concerned, the applicable instrument is instrument number 74 1997, and in relation to that instrument it is factor 5B upon which the applicant bases her case, namely that the decease smoked at least 15 pack years of cigarettes or the equivalent thereof in tobacco products before the clinical onset of chronic bronchitis.

As to dementia there is no applicable statement of principles. As to the deceased veteran's dementia we would refer to the report by Dr Iyer specialist psychiatrist which is found at document T13 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Dr Iyer's report which is dated 22 July 1998 reads inter alia:

He said (referring to the veteran) while he was in the army he started to drink and smoke in excess.  He was unable to give details of the number of cigarettes he smoked and the quantity of alcohol he consumed.

Dr Iyer continued:

In his mental state examination Mr Simpson was pleasant and co-operative and had great difficulties in recording details of his past history.  He was unable to give dates of the various events in his life like dates he served in the army and also dates of his various surgical interventions.

Dr Iyer then opined that at that time he suffered from dementia stating:

He has progressive memory and cognitive impairment which can be attributed to personal malignancy and to his chronic alcohol abuse in the past, to secondary depressive and anxiety features due to his medical condition that is to say dementia and malignancy.

At the outset we would state that if the deceased's alcohol intake were to be attributed to his war service then clearly it has contributed to his dementia, see Treloar v Australian Telecommunications Commission 26 FCR 316 at 323.

This case in essence depends on an assessment of the deceased's smoking and alcohol intake.  Turning first to the evidence of the veteran's wife she stated that she first met him around 1939 when he was one of a group of people with whom she used to go out.  They went out once every couple of weeks as a group.  At that time she said that the veteran did not smoke as a habit but had the occasional one when "the boys had a packet".  As to alcohol he did not drink very much, the group would buy a couple of bottles of beer and share between them.

She then lost contact with the veteran but regained his acquaintance in 1946 after he had been discharged from the army.  At that time he was drinking. He would turn up to take her out and she was able to tell he had been drinking.  She understood he was drinking every night after work and that he was a heavy drinker.  She understood him to be drinking four to six schooners a night.  At one stage she asked as to why he started drinking in the army and he said it was due to boredom where he was stationed, he said you got in with your mates and drank and then he drank after discharge to ease the pain in his stomach.

The veteran attributed pains in his stomach to bouts of dysentery he experienced in the army and we do note that at some later stage it was accepted by the Repatriation Commission that the veteran's duodenal ulcer and functional intestinal disorder together with diverticular disease was accepted as being war caused.

In 1946, that is to say after his discharge from the army, the veteran was smoking some 2 ounces of tobacco a week, together with a packet of cigarettes a day.  He never explained to his wife why he started smoking. About 1954 he ceased smoking, but the veteran's wife said she found out later he was smoking on the quiet.  Cross examined she said in 1954 he tried to give up smoking; she did not witness him smoking after that point but in re-examination she said after 1954 she did not see him smoking except for family barbeques etc. when he would have a cigarette; she didn't see him smoking for a couple of years but after a couple of years he again smoked; she would see him smoking in the yard.

She also said he used to drink up to six to seven schooners a night.  She also mentioned the fact that the applicant had been married whilst he was in the army, his wife had been unfaithful to him and she felt that the veteran considered that he had been taken in by his first wife, who was perhaps more interested in his soldier's allotment than him.

The veteran has made various statements as to his smoking and alcohol history.  The smoking and alcohol questionnaires completed by the veteran in 1996 are suspect as the veteran was certainly to some degree at that time affected by dementia, see the report of Dr Iyer referred to above.

In a supplementary set of T documents at ST1 is a smoking questionnaire completed by the veteran on 5 September 1996. In that he states that he started smoking in approximately April 1942, he started on 2 ounces of Log Cabin and increased as time went on the reason being peer pressure and nerves.  He is then asked:

Have you ever stopped smoking permanently?

He ticked the box alongside the word yes and as to the question:

When did you stop smoking permanently?

said:

About 10 years ago on doctor's advice.

That particular statement would be in contradiction to the applicant's evidence here today and also the evidence of the deceased veteran's son.  There is also at ST2 an alcohol questionnaire.  Question:

Why did you start drinking alcohol?

Answer:

Socially.

Question:

When did you start?

1942.

Was this during your service?

Yes.

What was your average daily intake when you first started drinking?
           3 to 4 beers per day.

He then said:

Habit increased due to availability.  We would drink as much as we could acquire.

The reason for the change:

Separation from family, stressful service and rations.

Asked what was the reason for any change in habit:

At the end of the war we had acquired the taste and addiction for it.

Some of those statements have to be taken with a degree of caution given other statements before us.  At T document page 22 there is an army hospital record card which notes that on or about 3 August 1945 the applicant fell and injured his head.  There is the notation:

Has been drinking beer.

However when one looks at the veteran's AAB83 extract being his record of service there is no evidence of alcohol caused disciplinary problems for example being drunk on duty or even simple drunkenness, see section 19 of the Army Act (Imperial) which was applied to Australian services by reason of the declaration of war against Germany.

There is a statement in the section 37 documents by the veteran's wife which says:

Tried smoking about 14.  Started in army approximately 1942, became heavy in 1943.  Stopped in 1954 on doctor's orders but still smoked a casual cigarette at barbecue or with a drink.  Started in 1957 and became very heavy smoking tailor made, roll your own and even tried the pipe.

There is a doctor's report from Dr Leong dated 23 November 1999 which reads:

This is to certify I treated the late Jack Simpson of 19 Edna Avenue, Merrylands for functional gastrointestinal disorder under the repat program since 1967 and until 86.  He was a heavy smoker and drinker of alcohol during that time.

The deceased applied for a pension to the then Repatriation Department in 1964.  A report by a medical practitioner employed by the Repatriation Department dated 14 May 1964, see document T4, took a history from the veteran that he was a non smoker and his alcohol intake was two to three schooners a day.

A psychiatrist reported on the veteran in a report dated 23 May 1964.  Interestingly that psychiatrist took a history from the veteran that he had been a shearer and country worker prior to enlistment.  That seems to be in contrast with the report of Dr Iyer who took a history that the veteran left school at the age of 13 when he started work in a smallgoods shop in Balmain.

The psychiatrist reports continue:

No convictions for alcohol in civil life.  Has "two or three" on way home most nights.  Gave up smoking as it seemed to upset his stomach.

At T document 7 on 12 October 1996 a history was taken that the deceased did not smoke but did have several beers a day.  We would point out at this time that the medical officer's comments, see page 39, were of the veteran:

Does not exaggerate, seems sincere type.

At document T8 Notes of a Medical History and Examination, which would appear to be on or about 25 January 1982, read:

Personal History: Smoking commenced 14 years of age.  Smoked until 1954 because it made him want to vomit and aggravated stomach condition.  Mainly rolled his own.

Alcohol:  Started 17 or 18 years.  Always had a drink at canteen. Classes himself as a medium drinker.  Couple of schooners a night.  Still drinking, depending on state of his stomach.  Averages three to four schooners a day if all right.  Weekends variable.

It is interesting that comment that he drank if all right because at documents T18 at page 81 is a statement from the veteran which reads:

The way I feel prevents me from mixing socially with my friends as I know I must not drink alcohol;  it has an adverse effect on my stomach as my bowels become very loose and I suffer with nausea after drinking a couple of glasses.

Continuing with the history we would then refer to the clinical notes of Gosford Hospital which became exhibit R4 in these proceedings.  At page 254 of those notes a history was taken:

Cigarettes at 15 pack years, ceased 40 years ago.  Alcohol 15 grams a day, previously 45 grams a day.

That history was taken in 1983.  At page 168 of the said notes which was an Emergency Department assessment dated 10 September 1997 to the question of alcohol:

Alcohol intake grams per day?  10 grams.

Previous alcohol abuse?  Yes.  5 years ago.
           Cigarette?  Quit 40 years ago, 3 to 4 ounces a week.
           Packed year smoked?  There is the notation: since 16 years.

In this matter there was also a statement by the veteran's son.  We do not place any great weight on it as he was not available for cross-examination and particularly we do place any weight on it where it conflicts with statements made by the veteran.

There is no real evidence as to why the veteran started or increased his smoking and alcohol on war service.  There is not a scintilla of evidence that his war service was of itself in any way stressful.  He appears to have spent the war as a transport driver in Queensland although it was stated he did enlist for service abroad.

Likewise there is no evidence available as to the degree of access the veteran had to either cigarettes or alcohol during his service.  Statements were made from the bar table and in the evidence of Dr Miller as to a culture of tolerance of alcohol and cigarette consumption in the military forces.  These however are no more than generalities, for example one could contrast the access to alcohol for a person serving at army headquarters in Melbourne as opposed to somebody on active service in the south west Pacific area.

Certainly courts have in the past taken into account some of the exigencies of miliary life. In Repatriation Commission v Tuite 17 AAR 158 at 163, Burchett and Einfeldt JJ said, referring to the original decision by the Tribunal, as follows:

The Tribunal found that the respondent at the age of 24 had not smoked before going into camp in the army but by the end of his period in camp was smoking about 20 cigarettes a day.  The Tribunal noted that it was not sufficient simply to find a temple connection; what was required was something within the applicant's military service which has caused him to start to smoke.  It accepted his evidence that he had not smoked before and that it was the circumstances whilst he was in camp that caused him to start to smoke.  The Tribunal added, some of those circumstances were that cigarettes were cheap, other people were smoking and a certain degree of apprehension as regards his future in the military.  The Tribunal pointed out that the respondent was in a milieu totally different to that which he had experienced before his call-up.  The Court then added, it appears that he was actually a volunteer.

That statement was incorrect.  One only had to look at Mr Tuite's army number to know that he was a conscript and not a volunteer.  The Court continued:

We are unable to find anything suggestive of error in this reasoning.

It was for the Tribunal to decide whether it accepted the evidence of the respondent.  Nothing seems to have been put before it to contradict that evidence nor was the respondent seriously challenged in cross examination.  Apart from the matter specifically  mentioned in the Tribunal's reasons there were indeed other things that were used in evidence which tended to the same conclusion. 

The boredom of life in camp clearly emerges from the respondents account.  It is true that not everything which occurs while a man is in camp is attributable to his war service but here the circumstances and incidence of camp life were plainly capable of having a causal influence upon the respondent's decision to take up smoking and upon his continuance in the habit until the inevitable onset of nicotine addiction.  It was open to the Tribunal to find the circumstances persuasive.

In O'Brien v Repatriation Commission 1 FCR 427 at 474 the Court referred to the High Court decision of Repatriation Commission v Law followed by a discussion of that case when it was before the Full Federal Court.  Referring to Law's case in the Full Federal Court it said:

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.

The Full Federal Court in O'Brien then continued:

The Court also said, it seems clear that the expression attributable to in each case involves an element of causation because they are not there to solve predominant 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 10(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.

At a later stage of its judgment at page 481 the Court said that the applicant's enlistment led to his loss of his freedom of choice and in particular the right to choose where he worked and lived and this was sufficient it seems for attributability.

Both cases, namely Tuite and O'Brien, must be read with caution, as specific facts were available in those cases.  Furthermore in this matter we are satisfied on the balance of probability, indeed even to the stage of beyond reasonable doubt, that the applicant ceased smoking in 1954 apart from the odd cigarette at a barbecue or some family function.

At some time later, February 1957 or even later he again started to smoke.  We cannot find that his decision to resume smoking had any relationship to his war service.  Some statements were made from the bar table about addiction and to the effect that former smokers simply become non-practising smokers: we have no evidence of this.  As far as we can find on the evidence before us the veteran ceased smoking because it affect his bowel conditions and then at some later time decided to take it up again.  We do not regard his later smoking as war caused.

So far as the applicant's alcohol habit is concerned again there is very little evidence.  With both alcohol and smoking there is a series of contradictory statements made by the veteran.  As the veteran himself said, at the end of the war he had acquired a taste for alcohol.  All that is known is that before the war the veteran was a light drinker and no doubt lack of money played a part in this and that after the war he was drinking heavily.  At document ST12 is a copy of a letter written by the veteran to the Repatriation Commission dated 25 May 1964.  It reads inter alia:

I was happily married then but through no reason of my own my marriage was broken up through me being separated from my wife.  To arrive home on leave and find her pregnant to someone else because you couldn't be home with her, that was a great shock to me and from then on my nerves have been under a big strain.

He continued:

It just ate my stomach away.

Also at ST13 dated 28 April 1964 is a letter in which the veteran says:

I also had matrimonial troubles which also upset me in those years.

Referring of course to his war service.

Certainly, and contrary to the submissions by the respondent, we find that if a veteran's wife has been unfaithful during his war service and those circumstances led to some mental condition then it may well be that the said condition can be said to have arisen out of war service.  Each case will depend on its own facts.  However on balance, having regard to the various matters outlined in Tuite above and even given the fact of the veteran's then wife's infidelity, we still find ourselves unpersuaded by any evidence as opposed to suspicion and conjecture that the veteran's addiction to alcohol was caused by anything attributable to or arising out of his war service, as opposed to war service being the setting for an increasing yet voluntary habit.  In these circumstances therefore the decision under review is affirmed.