Smith and Repatriation Commission
[2004] AATA 733
•12 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 733
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2003/1285
VETERANS' APPEALS DIVISION ) Re NOEL FREDERICK SMITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Joan Dwyer
Mr Conrad Ermert, MemberDate12 July 2004
PlaceMelbourne
Decision The decision under review is set aside. In substitution, the Tribunal decides that Mr Smith’s ischaemic heart disease is a war-caused disease with effect from 8 January 2003.
[sgd] Joan Dwyer
Senior Member
VETERANS' APPEALS – disability pension – whether ischaemic heart disease is war-caused under s 9 Veterans’ Entitlements Act 1986 – Royal Australian Navy – operational service – Evidence of fall from ladder during service – whether veteran increased smoking during service as a palliative measure after fall – whether increase in smoking connected with ischaemic heart disease – reasonable hypothesis raised – Tribunal not satisfied beyond reasonable doubt that no sufficient ground for determining that ischaemic heart disease war-caused – decision under review set aside.
Veterans’ Entitlements Act 1986, ss 6C, 120(1),120 (3), 120A.
Repatriation Commission v Deledio (1998) 49 ALD 193
Bushell v Repatriation Commission (1993) 109 ALR 30
Byrnes v Repatriation Commission (1993) 116 ALR 210Repartriation Commission v Hill (2002) 69 ALD 581
REASONS FOR DECISION
12 July 2004 Senior Member Joan Dwyer
Mr Conrad Ermert, Member1. This is an application for review of part of a decision of the Repatriation Commission (“the Commission”) made 25 June 2003, which refused to accept ischaemic heart disease as a war‑caused disease within the meaning of that term in s 9 of the Veterans’ Entitlements Act 1986 ("the Act"). The decision of the Commission was affirmed by the Veterans’ Review Board (“the VRB”) on 15 October 2003. The question for the Tribunal is whether Mr Smith’s ischaemic heart disease is war-caused.
2. At the hearing Ms Magee of Counsel appeared for Mr Smith. Mr Smith gave evidence. Ms Chant, an advocate with the Department of Veterans' Affairs, appeared for the Commission. The Tribunal had before it the documents (“the T‑documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.
3. Mr Smith served in the Royal Australian Navy ("the Navy") from January 1953 to November 1959. It was agreed between the parties that he rendered “operational service” in Malaya within the meaning of that term in s 6C of the Act from 3 July 1955 to 9 July 1955 ("the first period of operational service") and from 7 March 1956 to 9 April 1956 ("the second period of operational service"). At the times when he rendered operational service, Mr Smith was serving on HMAS Quadrant.
4. As Mr Smith had operational service, the standard of proof applicable to this hearing is that found in s 120(1) and (3) of the Act. Those subsections provide:
Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
5. Section 120A of the Act provides, so far as relevant:
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
6. It is now well understood that the appropriate procedure to adopt in deciding a matter such as this was explained by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206. The Full Court said:
1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11).
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
7. In this matter the hypothesis relied on by Mr Smith, as connecting his ischaemic heart disease with his service, is that he had a fall during operational service in which he suffered injuries to his left hip, buttock and low back, and that he increased his cigarette smoking to cope with the pain after the fall and kept smoking at that increased rate. It is not in dispute that there is material raising a reasonable hypothesis. The issue is whether the Tribunal is satisfied beyond reasonable doubt that the facts necessary to support the hypothesis are disproved.
8. The material pointing to the hypothesis relied on by Mr Smith is set out in his statement of 17 November 2003 (A1). So far as relevant it reads:
…
During my second tour of Malaya I fell down a ladder as we were travelling through rough seas. I suffered injuries to my left hip/buttock and low back as well as neck in the fall and have had at least low grade pain ever since. I reported my injuries to the Sick Berth Attendant. I recall that the incident occurred whilst we were travelling through the operational war zone.
Immediately prior to the aforementioned fall I regarded myself as a social smoker. At that stage I was smoking to be sociable. I had commenced smoking shortly after my enlistment in 1953. Immediately prior to my fall I was smoking on a daily basis but there were some days where I would smoke as little as one or two cigarettes and other days when I might smoke 15 to 20. I seldom finished the cigarettes which I smoked; I tended to have one or two drags from the cigarette and then throw the rest out before the fall. In essence, I did not have any craving or addictions to tobacco before the fall.
When I reported to the Sick Berth Attendant following my aforementioned fall he rubbed Liniment on me and put some substance (I believe antiseptic) on the abrasion which I had suffered in the fall. I was suffering acute pain. The Sick Berth Attendant sent me back to my duties but indicated that I should limit myself to what I thought I could cope with.
I was an Electrician's mate and my duties were to maintain and service the electrical system on board the vessel. My normal duties required me to climb ladders and work in confined spaces. After the accident my mates covered me for those particular duties which aggravated my symptoms. My mates covered me until my symptoms had diminished somewhat.
I recall that my smoking habits increased following the fall because I found that smoking had a soothing effect. My habit accordingly increased to about 30 cigarettes per day. At that stage I then started smoking the whole of the cigarette (down to the cork tip). It was at this time that I believe that I got hooked on smoking.
I relate the increase in my smoking to the stress from the injuries rather than being in a war zone at the time. I was not unduly worried about being in the war zone.
I continued to smoke at the heavier rate of 30 cigarettes per day. Gradually the habit increased to the point that I came to smoke at the rate of about 40 cigarettes per day and I smoked at that rate until 1996. In about 1996 I was suffering some giddy turns and consulted my then general practitioner (Dr. J. Dickman then of Carrum but whom I understand is now at Tower Hill Road, Frankston). Dr. Dickman had diagnosed hypertension about 4 to 5 years previously and I was on medication for hypertension. When I saw him in 1996 complaining of giddiness he advised me to stop smoking and he prescribed patches to assist me to overcome the habit.
I suffered a heart attack in 2001. It came without any warning.
…
9. In his evidence, Mr Smith confirmed that statement. He explained that he was a social smoker from the time he joined the Navy. He said that he smoked to be one of the boys and because the other 9 in his intake class of 10 all smoked.
10. Mr Smith said that, after he fell down the ladder, he was assisted to sick bay. He said for probably 2 or 3 days after that, he was not able to do much. He explained that he could not sleep in his hammock and so he took it down and laid it on the floor of the switchboard room. He said he did not do any duties for 2 days, then he gradually "wandered back" to work, but did not do his own duties in the engine room because they would have required him to go down vertical ladders. He said his shipmates did his jobs and he helped out.
11. Mr Smith said that, for the first couple of days, when he was sleeping on the floor of the switchboard room, he lived on cigarettes and Milo. He said that was when he started to smoke right through the cigarette, rather than just about half a cigarette.
12. Mr Smith said that he started smoking Chesterfields during the voyage to Malaya because they were available in Singapore and in Manila, but not in Australia. He said that, when he finished his operational service, he was smoking a full cigarette and doing the drawback which he had not been doing when he started smoking after joining the Navy.
13. Mr Smith said that he "got hooked" on cigarettes after the fall. Before the fall he had not smoked until lunchtime or after he finished his duties. After the fall, he said he was looking for a cigarette at every opportunity, but not during the night. He said his smoking habit gradually built up, and he reached the stage where he even woke up and smoked during the night. He gave up smoking in 1996.
14. As Ms Magee anticipated in her opening address, Mr Smith's credibility was the major issue in this hearing. Ms Magee took Mr Smith to a smoking questionnaire (R3), which had been signed by him on 7 May 2001. In that questionnaire, which Mr Smith said was filled in by Mr Weston, a Returned & Services League ("RSL") representative at Edithvale, Mr Smith said that he started smoking in service and, at first, he smoked approximately 10 cigarettes a day. He said that he started smoking because of peer group pressure and because of the cost, which he explained in evidence, was very little. Section 2 of that questionnaire contains the following explanation:
…
This section should be completed if your smoking habit changed over time. The Department needs to understand what the smoking pattern was like, so that it can determine how much you smoked in total.
The following table should be completed for each time a major change in smoking happened. For instance, any stop/start periods or changes to consumption by a large amount.
…
The table showing changes in smoking habit on the questionnaire signed by Mr Smith is as follows:
Date of Change
(month and year)
New amount smoked
(cigs per day/ounces
per week)
Reason for change
1954
20/day
At sea, threatening circumstances – stress
1960
30/day
Lack of direction in civilian life
1994
40/day
Pressure of work, addiction
15. The information in that questionnaire as to changes in smoking habit, did not mention any increase in 1955 or 1956; nor did it mention the fall. Mr Smith said that the date 1954 was a mistake; he had thought that was the date of his first operational service voyage. He said that he had since realised that the fall was on the second operational voyage in 1956. Even accepting the error in dates, Mr Smith did not explain why he had not given the fall as to the reason for the change in 1954, but had instead referred to “threatening circumstances – stress”.
16. Mr Smith agreed that he had increased his smoking again in 1960, because of lack of direction in civilian life. He also agreed with the statement on the questionnaire that the reason for a further increase in 1994 was pressure of work. He explained that, at that time, there were a number of redundancies at the Melbourne Metropolitan Board of Works where he was working. It had been a bad time.
17. Ms Magee also referred Mr Smith to the transcript of the VRB hearing on 15 October 2003 (R2), which again does not contain any reference to Mr Smith smoking in order to soothe pain from a fall. Ms Magee pointed out that there were only two questions asked of Mr Smith by the VRB as to his increase in smoking. She asked Mr Smith why he did not mention the increase in smoking during operational service as a result of the fall. Mr Smith explained that he had been cut off by the Presiding Member of the VRB, at the point where he was going to give that explanation. The transcript (R2) confirms that Mr Smith was cut off by the Presiding Member of the VRB when he was about to answer a question from another VRB Member about how his increase in smoking related to his operational service. The transcript (R2 p6) reads as follows:
…
MR DICKSON: What was it about your circumstances up there, during your 39 days or – with operational service, Mr Smith?
MR SMITH: With regard to how the smoking - - -
MR DICKSON: Yes.
MR THOMPSON: Could I – just before you answer that, I just want to speak to my colleagues for one moment. So I wonder whether it would be – I am sorry if it is inconvenient, but - - -
MR TURNER: That is fine.
MR THOMPSON: Yes.
MR SMITH: Okay.
TAPE SUSPENDED
TAPE RECOMMENCED
MR THOMPSON: I apologise for that inconvenience, Mr Smith and Mr Turner. Yes. In fact, we have determined that we do not need any further information. We have sufficient on the basis of what you have told us this morning to proceed to a determination. There is nothing else you want to add?
MR TURNER: Not from me. Did you want to - - -
MR SMITH: I think that about does it.
The VRB rejected the claim for ischaemic heart disease to be accepted as a war‑caused disease.
18. In cross‑examination, Ms Chant pointed out to Mr Smith that there was a discrepancy in the accounts he had given of the fall. When he signed the report forms seeking to have trauma to left hip and trauma to back accepted as war‑caused injuries in May 2001 (R4 and R5), he had stated that the fall occurred when he was travelling between Manila and Singapore on HMAS Quadrant between 2 and 9 July 1955, that is, during the first period of operational service. In his statement (A1) dated 17 November 2003, he said it occurred during the second period of operational service, between 7 March and 9 April 1956.
19. Mr Smith responded that he could not remember the day or date of the fall, but it was on the second day after leaving Manila for Singapore at about 4:00 p.m. He said the ship had sailed straight out into a fierce storm which was with the ship for five or six days. Ms Chant asked Mr Smith whether he thought he had a good memory. He said he did not. She then asked how it was that he could remember the details of his smoking habit and his fall in order to make the statement (A1). He said that he thought he could remember those matters because they had been gone over so much, “to try to put it together” (trans p22).
20. Ms Chant also put to Mr Smith that not only had he not told the VRB about the fall, his representative at the VRB hearing, Mr Turner, had given the VRB a different reason for the increase in smoking during operational service. When the VRB hearing started, Mr Turner explained the way in which the case was put for Mr Smith. He said (R2 p3):
…
MR TURNER: Mr Smith started smoking when he joined the service, which was in 1953, and he tells me he was smoking 15 to 20 cigarettes a day. This increased to 30 cigarettes a day when he first tried American Chesterfield cigarettes during operational service in Malaya. He maintained this 30 cigarettes a day habit until 1994 when due to stress of work he went to 40 a day, and he ceased smoking altogether in 1996. It is calculated by myself that he had an increase of 10 cigarettes a day, from 1955 until 1994.
21. Mr Smith confirmed that he had given that history to Mr Turner prior to the VRB hearing. The transcript (R2 p4) shows that Mr Turner asked Mr Smith at the hearing whether what he said was correct. Mr Smith replied, “That is correct”. The Presiding Member of the VRB then asked Mr Smith:
MR THOMPSON: …You increased, we are told by Mr Turner, Mr Smith, when you tried American Chesterfield cigarettes during service. What was it about the Chesterfield that caused you – were you previously smoking filtered cigarettes?
MR SMITH: No. No. Cork tipped cigarettes. I think I was smoking Craven A at one stage. I think that was a popular brand and - - -
MR THOMPSON: What was it about Chesterfields that - - -
MR SMITH: The taste of them I think and they were available, I guess, while we were up there, and – yes, I quite liked them. I got quite a taste for them.
22. That is all the evidence given by Mr Smith to the VRB as to his smoking habit up to the point set out in paragraph 17 above, where he was cut off by the Presiding Member. As already explained, that occurred just when he was about to answer a question from another VRB Member as to what it was about his circumstances during his 39 days of operational service which affected his smoking.
APPLYING THE PROCEDURE EXPLAINED IN DELEDIO
23. As to step 1, Mr Smith’s statement (A1) and his evidence provide material raising a hypothesis linking an increase in smoking with a fall during operational service.
24. As to step 2, it was agreed by the parties that the relevant Statement of Principles ("SoP") is No 53 of 2003 for ischaemic heart disease. That SoP contains the following relevant smoking‑related factors:
5. …
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products before the clinical onset of ischaemic heart disease; or
25. As to step 3, the Commission did not dispute that Mr Smith's statement (A1) pointed to satisfaction of a relevant smoking hypothesis and thus that the hypothesis raised was reasonable.
26. As to step 4, the Commission's Statement of Facts and Contentions did not expressly state that the Commission submitted that the decision under review should be affirmed because the Tribunal should be satisfied beyond reasonable doubt that the matters set out in the statement (A1) as to the fall causing an increase in smoking were not true. However that seemed to be the way the Commission put its case. The only relevant paragraph in the Commission’s Statement of Facts and Contentions was 4.3, which reads as follows:
…
The Respondent concedes that based on the available medical material the Applicant suffers from ischaemic heart disease. The Respondent notes the Applicant’s undated Claimant Report – Cigarette Smoking tendered by the Applicant’s Advocate at the Board hearing on 15 October 2003, that the Applicant commenced smoking on service in 1953 due to "peer group pressure, cost"; in 1953 and 1954 the Applicant smoked 15 to 20 cigarettes a day due to being "at sea" and "threatening circumstances"; and that he only increased his cigarette consumption in 1960 to 30 a day due to "stress" and "lack of direction in civilian life" (Section 37 Statement pp xiii to xiv). At the hearing on 15 October 2003 the Applicant told the Board that he increased his cigarette consumption during his operational service because he liked the taste of Chesterfield cigarettes and they were available (Transcript of the Veterans’ Review Board hearing on 15 October 2003, exchanged by the Respondent under cover of letter dated 6 February 2004, pp 4 and 5). The Applicant’s most recent evidence in relation to his increase in cigarette consumption is that he was a social smoker before a fall during his second tour of operational service (that is, 7 March to 9 April 1956) when he suffered injuries to his left hip/buttock, low back and neck and low back. The Applicant has the conditions of osteoarthrosis of the right and left hip, lumbar spondylosis and cervical spondylosis accepted as war‑caused. The Applicant’s evidence is that he increased his smoking because it had a soothing effect on these injuries.
The Respondent submits that the inconsistencies in the Applicant’s own evidence in relation to his smoking history disprove a causal or temporal connection between service and smoking.
27. In cross‑examination Ms Chant pointed to small inconsistencies such as whether prior to the fall Mr Smith had "two drags" on a cigarette or smoked half a cigarette, and the inconsistency as to whether the fall was during the first or the second period of operational service. She did not put to him that his statement of 17 November 2003 was not an accurate recollection and had been contrived to meet the requirements of the Act. She did not clearly put to him that the true situation was, as set out in (R3), that the increase in smoking habit during service was related to going to sea, and to the ready availability of cigarettes, but was not related to any pain from a fall.
28. The Tribunal was troubled by Mr Smith's difficulty in remembering facts about his voyage, other than the fact of his fall, which, he said, occurred two days out of Manila, and the fact that he increased his smoking after and because of that fall. He did not say that there was any record of the fall, or of the treatment that he obtained after the fall in any Naval medical records. However, Captain Josephs in his report of 17 April 2004 (R1) wrote that, if a fall did not require medical treatment and only caused a short period of incapacity for duty, it was quite possible that it would not be reported.
29. The Tribunal had doubts about the reliability of Mr Smith's statement of 17 November 2003 (A1), because Mr Smith had never previously claimed that there was any link between his increase in smoking and the fall, which he said occurred on operational service.
30. We were troubled by the fact that, when Mr Smith was asked to provide a smoking history, in his smoking report of May 2001 (R3), he did not refer to an increase in smoking to soothe pain from a fall. That omission cannot be satisfactorily explained by him saying that he was confused about the dates of his voyages. Nor can it be explained on the basis that he had forgotten about the fall. Only three weeks later, he lodged reports seeking to have trauma to left hip and to back accepted on the basis that they were due to the fall (R4 and R5). Mr Smith explained that he had signed the smoking questionnaire (R3) after it was filled in by an RSL representative, but he did not deny that he had provided the information on the form.
31. As we said to Mr Smith, we were also troubled by the fact that the transcript of the hearing before the VRB was inconsistent with the statement (A1). Mr Smith agreed that he had a conversation with his RSL advocate, Mr Turner, prior to the hearing. He said that Mr Turner was not interested in hearing about the fall. He had been quite confident that there were sufficient pack years of smoking, and said “this is all right and it is all we need.”
32. As already stated, Ms Chant had not clearly put to Mr Smith that the respondent did not accept his statement (A1) as true. The Tribunal considered this had to be made clear to Mr Smith. The Tribunal asked him whether he had changed his story because he had learnt that the pack years alone were not sufficient. The transcript of that discussion at pp53‑55 is as follows:
…
So I suppose the question that comes to mind is, well, is it because you have now learnt that it wasn't sufficient that the story has changed a little bit? --- Perhaps there has been more investigation put into it by Mr - what is his name, the man that helped me prepare that, Mr - I don't know.
Jorgensen I think you mean? --- Yes, that is him. Yes.
Well, is it more investigation or is it you giving a different story from what is the true story? --- No, I don't think I am giving a different version. I think I am going along with the fall creating a lot of it.
But you see, you are going along with the fall creating a lot of war caused conditions, that is so, and the interesting thing is that the VRB in its decision in knocking you back actually explained that if there was a link with something for pain then it would be able perhaps to say that the condition was war caused, because at page 12 of their decision they say, this is starting from page 11:
There was no material pointing to Mr Smith's increase in cigarette consumption during relevant service being driven by any service related events. The theoretical possibilities include an increase in cigarette consumption as a palliative [that means dealing with the pain] for a psychological or physical incapacity related to service, or as a coping mechanism connected to war time experiences.
And they say that in October [2003] and then for the very first time, the very next month we get this statement which says yes, I did increase my smoking to cope with the pain from the fall. Now, the Tribunal has to consider whether it is satisfied beyond reasonable doubt … that that isn't true . I would just like you to comment if there is any comment that you feel it is appropriate to make when I say the Tribunal may conclude that this is a story that meets the circumstances of improving of your case rather than the true circumstances? --- At the Review Board one of the gentlemen, there was three people facing us, a woman, I think and Mr Thompson in the middle and another gentleman and he had started a question off to me.
That is true. That is in the transcript? --- And he said is there anything connected here, or something like that, anything connected with your service, and we were chopped off by Mr Thompson who said I think we have enough and we didn't have an opportunity to go on to that part. That was the part that I wanted to submit myself there and he chopped us off.
I can see that he chopped you off? --- That is right. Well, that is where I wanted to go with it.
Yes. But the fact is you had had the opportunity to go with it in your meeting with Mr Turner before? --- No, he told me no, don't worry about anything like that. He says I have got, you here on the pack days, or whatever, that type of - - -
That issue? --- Yes. He said this is all right, we have got so many pack - however it works out, I don't know. But he said this is what we will go with and that was it.
Well, you see, the pack years are there but it is the connection with service that is the problem? --- Yes, yes.
Okay. And the other time when it isn't mentioned is actually in the claim to have your smoking recognised as war caused in relation to the claim for the heart attack, which is this page 12 we looked at before. That says:
During service I started smoking and drinking. I continued those practices until approximately 10 years ago…
But you didn't say anything there about increasing your smoking due to pain? --- No.
Questions arising?
MS MAGEE: At any time, Mr Smith, have you deliberately sought to conceal any of the information relating to your smoking habits? --- pardon?
At any time have you deliberately sought to conceal any information relating
to your smoking habits? --- No.
…
33. In our opinion, Mr Smith’s answer to the Tribunal that he “went along with the fall creating a lot of it” is probably true. That strongly suggests that the statement A1 is not true, but is a reconstruction, the result of Mr Smith seeing the comments of the VRB as suggesting a means of improving his case, and adopting that suggestion.
34. We consider that, if Mr Smith had told Mr Turner that he had increased his smoking habit during operational service because of pain from a fall down a ladder, Mr Turner would probably have told the VRB so. Mr Smith said that he attempted to tell Mr Turner that, but he was only interested in the number of packs a year. We did not hear from Mr Turner so we can make no clear finding on that matter, but we do note that Mr Smith had the opportunity given to him by Mr Turner, during the VRB hearing, to correct or add to what Mr Turner had said as to his smoking history (R2 p4). Mr Smith could have explained to the VRB that his increase in smoking during operational service was not only due to preferring the taste of Chesterfields, but was also due to pain from a fall, at that stage.
35. However, Mr Smith also told the Tribunal that he was about to talk about the fall at the VRB hearing, when he was “chopped off” by the Presiding Member. We have grave doubts whether it was true that Mr Smith was about to tell the VRB about increasing his rate of smoking to cope with pain from a fall while on operational service, but there is no doubt that he was “chopped off” by the Presiding Member of the VRB. That makes it almost impossible for us to be satisfied beyond reasonable doubt that Mr Smith would not have told the VRB about the fall if he had been free to answer Mr Dickson’s question fully. We consider that it was unfortunate and inappropriate that the Presiding Member of the VRB did cut Mr Smith off, when he was about to answer an extremely relevant question. After the interruption the Presiding Member asked Mr Smith whether there was anything he wanted to add, but he also said that the VRB had determined that it did not need any further information. It is perhaps not surprising that Mr Smith did not add anything.
36. We find it to be significant that, as the Tribunal put to Mr Smith, the suggestion that he smoked for palliative reasons, mainly to soothe pain, was not made by Mr Smith until a month after he received the decision of the VRB. That decision, in rejecting the claim, pointed out that the raised facts relating to Mr Smith's smoking habit, being his preference for Chesterfields, did not point to a causal relationship between increased cigarette consumption and operational war service. The VRB then went on to say:
…Moreover, and in any event there was no material (either in the form of direct evidence or derived by inference) pointing to Mr Smith's increase in cigarette consumption during relevant service being driven by any service related events. The theoretical possibilities include an increase in cigarette consumption as a palliative for a psychological or physical incapacity related to service or as a coping mechanism connected to war‑time experiences. There is no material pointing to these or other possibilities. In short, there is no material before the Board actually going to that part of the hypothesis of a connection between war service and the veteran’s increase in cigarette consumption in July 1955.
37. We doubt if it is purely a coincidence that, a month after that decision, Mr Smith first mentioned that his smoking habit increased following the fall, because he found that smoking had a soothing or palliative effect. In considering whether the coincidence is too great to be credible, we note that the connection between smoking and the fall was not made in the smoking report of May 2001, or to the VRB, or in the claim form dated 17 March 2003 (T5 pp9‑17) when Mr Smith made his claim for ischaemic heart disease or heart attack to be accepted as a war‑caused disease. In the claim form he did not mention any event during operational service having any relevance to his smoking habit. He simply stated: “During service I started smoking and drinking”.
38. We do not regard the discrepancy in Mr Smith's statements as to whether the fall down a ladder occurred on his first or his second period of operational service as significant. There was no detailed service statement in the material before the Tribunal showing the actual voyages undertaken by HMAS Quadrant during each of the relevant periods of operational service. Ms Magee submitted that Mr Smith's inconsistency as to the voyage during which he fell was unimportant. She said that what was important was that he said it occurred on a voyage from Manila to Singapore. We accept that it is quite credible that Mr Smith could have been confused as to the precise voyage on which the fall occurred, almost 50 years ago.
39. It is rare for the Tribunal to decide under s 120(1) that it is satisfied beyond reasonable doubt that a claimed incapacity does not arise from a war‑caused disease, where a reasonable hypothesis has been raised under s 120(3) of the Act. In this matter, as we put to Mr Smith, and as Ms Magee recognised at the outset of the hearing there was a real issue as to Mr Smith’s credibility in raising a new reason for his increase in smoking habit for the first time after the VRB hearing.
40. Further, there is something unlikely about Mr Smith’s statement. He does not say that the pain was so bad that he asked the sick-berth attendant for any pain killers. If the pain from the fall were so severe that it caused Mr Smith to increase his smoking as a palliative measure, to such an extent that it changed his smoking habit from that point on, it is hard to accept that he would not have, at some stage, taken a pain killer and that he would not have remembered the significance of that fall, whenever he was asked to explain the change in his smoking habit.
41. The role of subsections 120(1) and (3) of the Act was considered by the High Court in Bushell v Repatriation Commission (1993) 109 ALR 30 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Bushell, Mason CJ, Deane and McHugh JJ said at 36:
The Commission will be satisfied beyond reasonable doubt “that there is no sufficient ground for making [the] determination” if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, “beyond reasonable doubt, that there is no sufficient ground for making the determination” even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist. [emphasis added]
42. The passage quoted above from Bushell seems, at first, to leave open the possibility that a Tribunal may be “satisfied beyond reasonable doubt that it cannot accept raised facts” because of their unreliability, for example because of inconsistencies in the various accounts of relevant matters given by the veteran. However, by the end of the paragraph, their Honours seem to be requiring more than that. They say they cannot conceive of a case where, once a reasonable hypothesis is raised, the Tribunal could be satisfied that there is no sufficient ground for making the determination, “even though the raised facts are not disproved”.
43. It must be borne in mind that, as the Federal Court has frequently emphasized, there is no question of proof of facts at the stage of considering whether a reasonable hypothesis has been raised. Section 120(3) of the Act does not require, or indeed allow, the Tribunal to engage in a “fact finding exercise” (See Repartriation Commission v Hill (2002) 69 ALD 581 at 599). Thus the High Court said in Bushell that, once there is evidence pointing to relevant facts which raise a reasonable hypothesis, no matter how unpersuasive that evidence is, the veteran must succeed unless the Commission or this Tribunal can be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the disease or injury in question is war-caused.
44. In Byrne, Mason CJ, Gaudron and McHugh JJ further explained the onus on the respondent to disprove the raised hypothesis, at 215:
The position may be summarised as follows:
(1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.
45. Thus, the question the Tribunal must decide is whether the facts asserted by Mr Smith, that he increased his smoking habit very significantly for palliative reasons after a fall during operational service, and that he continued to smoke at that increased rate, are “disproved beyond reasonable doubt”. We have already explained that we have grave doubts as to whether Mr Smith’s statement (A1) is truthful, but that is not the same thing as saying that we are satisfied beyond reasonable doubt that the raised facts are disproved.
46. We consider that the hypothesis relied on by Mr Smith is unlikely. First, we consider it likely that, if he had suffered the degree of pain he described, he would have asked the sick berth attendant for some form of pain relief. Second, we consider it unlikely that the couple of days after the fall in which he said he suffered acute pain would have led to a permanently increased rate of smoking, or, as he said, to his becoming “hooked” on smoking. Finally, if the fall had this significance, we consider he would have remembered it and would have mentioned it in his claim, smoking questionnaire, and when asked if there was anything he wanted to add at the VRB hearing.
47. We did not find Mr Smith’s evidence persuasive or convincing. We consider it probable that the account in Mr Smith’s statement was made up, taking into account the comments of the VRB as to why Mr Smith failed before the VRB. We find that it is likely that the true situation is, as he frankly told the Tribunal, “I went along with the fall creating a lot of it” (trans p53). Ms Magee asked Mr Smith whether he attempted to conceal information relating to his smoking habit and he answered “No”. It may well be that what he did was invent rather than conceal information about his smoking habit.
48. As set out in paragraphs 41 – 44 of these reasons, Bushell and Byrne establish that the claim must succeed unless one or more of the facts supporting the hypothesis has been disproved beyond reasonable doubt, or some other fact inconsistent with the hypothesis has been proved beyond reasonable doubt. We consider that, although the hypothesis relied on by Mr Smith is improbable, and we have grave doubts as to its truthfulness, we cannot say that the facts on which he relies have been disproved to a standard that is beyond any reasonable doubt.
49. Mr Smith’s case is assisted by the way in which he was cut off by the Presiding Member at the VRB hearing. His evidence that he was about to talk about the fall when he was interrupted does raise a possibility that he may have been about to tell the VRB that he had used cigarettes to soothe his pain after a fall during operational service. If the account of his increase in smoking habit to soothe pain after the fall on operational service had been volunteered by Mr Smith to the VRB, without any suggestion from the VRB, we would have had much less doubt about his credibility. There would have been no reason to consider whether his evidence had been made up, as a way to meet the requirements of the Act, in the manner suggested by the VRB in its decision.
50. We have decided that, in spite of our grave doubts about the reliability of Mr Smith’s statement (A1) and his evidence, we cannot be satisfied beyond reasonable doubt that the raised facts in his statement of 17 November 2003 are disproved. The main reason relied upon by the Commission as disproving the hypothesis raised by Mr Smith is his lack of credibility, demonstrated by the inconsistencies in his accounts of his smoking in relation to his operational service. The restriction on his opportunity to explain the relationship between his smoking and his service at the VRB hearing, removes the significance of that occasion, and makes it difficult to say that his evidence is disproved beyond reasonable doubt.
51. Mr Smith’s statement may well be a reconstruction to meet his perception of what was required from him to succeed in his case, but we cannot be satisfied of that beyond reasonable doubt. The decision under review must be set aside.
52. The respondent, in its Statement of Facts and Contentions, submitted that, if we should decide in Mr Smith’s favour, the date of effect should be 8 January 2003. That is a date not more than six months before he applied for review of the Commission’s decision.
53. We will set aside the decision under review. In substitution, we will find that Mr Smith’s ischaemic heart disease is a war-caused disease with effect from 8 January 2003.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer and Mr Ermert, Member.
Signed: Josephine McKay
AssociateDate/s of Hearing 27 May 2003
Date of Decision 12 July 2004
Counsel for the Applicant Ms Magee
Solicitor for the Applicant Williams Winter Solicitors
Advocate for the Respondent Ms Chant
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