Smith and Repatriation Commission
[2002] AATA 145
•20 February 2002
DECISION AND REASONS FOR DECISION [2002] AATA 145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/421
VETERANS' APPEALS DIVISION )
Re jOHN SYDNEY SMITH
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen; Dr P Lynch, Member
Date20 February 2002
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/421
)
VETERANS' APPEALS DIVISION )
Re: JOHN SYDNEY SMITH
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr P Lynch, Member
Date 20 February 2002
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant, JOHN SYDNEY SMITH, is entitled to pension for the war-caused disease of Bronchiectasis.
2.The decision of the Respondent regarding Psoriasis and Chronic Bronchitis and Emphysema is AFFIRMED.
3.This matter is remitted to the Respondent in order that it might assess the rate of pension to be paid for incapacity from all war-caused injuries and diseases suffered by the said Applicant.
(Sgd) M.D. ALLEN
.............................
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2001/421
)
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN SYDNEY SMITH
Applicant
And REPATRIATION COMMISSION
Respondent
CORRIGENDUM TO DECISION
Tribunal : Senior Member M D Allen
Date : 5 March 2002
Place : Sydney
Direction : Pursuant to section 43AA of the Administrative Appeals Tribunal
Act 1975, the decision of the Tribunal dated 21 February 2002 is
amended by adding the following words to paragraph 1 of the
said decision viz:
"as and from 23 April 1999".
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Australian Mariner whether smoking habit arose during non-operational or operational service.
Veterans' Entitlements Act 1986 – s5C; s6B; s120; s120A; 120B
Repatriation Commission v Smith 15 FCR 327
Repatriation Commission v Deledio 83 FCR 82
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commission v Hughes 40 AAR 34
REASONS FOR DECISION
Senior Member M D Allen
Dr P Lynch, Member
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.
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.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant 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
Signed:
..................................................................................……………………………….Associate
Date of Hearing 20 February 2002
Date of Decision 20 February 2002Counsel for Applicant Mr M Vincent
Solicitor for Applicant Vardanega Roberts
Representative for Respondent Ms P Hook, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/421
By MR M.D. ALLEN, Senior Member and
Dr P Lynch, Member
SYDNEY, 20 FEBRUARY 2002
MR ALLEN: Pursuant to an application which was lodged with the Tribunal on the 4th day of April 2001, the applicant sought review of a decision by the respondent, Repatriation Commission, that refused his claim for psoriasis together with a condition which was originally diagnosed as interstitial lung disease.
In these proceedings, following the report by Professor Breslin, consultant thoracic physician, it was not disputed that the actual condition suffered by the applicant is not interstitial lung disease but smoking-induced airways disease with emphysema and bronchiectasis. In evidence to the Tribunal, Professor Breslin said that smoking-induced airways disease is basically the same condition as chronic bronchitis.
The applicant had service during the period of the second world war as an Australian mariner. That is to say he was a member of what is known as The Merchant Marine. As such certain service is recognised under the Veterans Entitlements Act. Section 5C of that Act states, inter alia, that a veteran includes an Australian mariner which term is further defined in 5C:
An Australian mariner means a person who was, during the period of World War 2 from its commencement to and including 29 October 1945: a seaman employed under agreement in sea-going service on a ship registered in Australia that was engaged in trading between a port in a state or territory and any other port.
Operation service for Australian mariners is defined in section 6B in the following terms:
A person is taken to have been rendering operational service during (a) any period of employment outside Australia as an Australian mariner on a ship or (b) any period of employment within Australia as an Australian mariner on a ship if that period of employment ended immediately before or started immediately after the period of employment referred to in paragraph (a).
In this matter the applicant, after a period of service in the Royal Australian Naval Reserve, joined the Merchant Marine. His service was
smirepj 20.2.02 P-1
©Auscript Pty Limitedfirst of all upon the SS Marada which was engaged in coastal service on the Australian coast. His periods of service on that vessel were from 6 September 1944 to 22 January 1945 and from 1 February 1945 to 15 June 1945. He then was taken on as a crew member, or to use technical terminology signed the indentures as a crew member, of the SS Wanaka as from 5 July 1945 and continued on that vessel to the 29 October 1945, according to the records which were before us in exhibit A3.
The applicant stated in evidence that in fact immediately upon his cessation of his period as a crew member of the SS Marada he went to the SS Wanaka. This may be so but his period of service aboard that vessel dates only from 5 July 1945, and as he was paid off from the SS Marada on 15 June 1945, we find that he cannot bring himself within paragraph B of subsection (1) of section 6B of the Veterans Entitlements Act so that he has, in fact, as is relevant in these proceedings, two periods of eligible service which are non-operational and one period of service which is operational service. That has a critical effect in this particular case, not only as to matters of proof but also in relation to the various statements of principal.
So far as matters of proof are concerned for the periods which are non-operational service then subsection (4) of section 120 of the Veterans Entitlements Act applies and the Tribunal must make its decision according to its reasonable satisfaction. The term, reasonable satisfaction, was in Repatriation Commission v Smith, 15 FCR 327 equated to the civil standard of proof, that is to say proof on the balance of probabilities.
Section 120B of the Veterans Entitlements Act provides that this Tribunal shall not be reasonably satisfied in relation to any disease contracted by a person unless the circumstances etcetera confirm to a so-called statement of principles.
So far as the applicant's operational service is concerned, the more favourable standard of proof provided by subsections (1) and (3) of section 120 of the Veterans Entitlements Act apply. That is to say, that the Tribunal shall determine that any disease suffered by him was war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will, however, be so satisfied if the material before it does not raise a reasonable hypothesis connecting the said disease with the circumstances of the particular service rendered by the person.
Akin to section 120B, section 120A of the Veterans Entitlements Act provides that any hypothesis seeking to connect the disease with circumstances of service will not be a reasonable hypothesis unless it
smirepj 20.2.02 P-2
©Auscript Pty Limitedconforms with a statement of principles.
In this matter so far as relates to chronic bronchitis and emphysema, the applicable instrument in relation to operational service is number 3 of 1997 and so far as applies to non-operational service instrument number 74 of 1997. Bronchiectasis is covered by instrument number 36 of 1997 so far as relates to non-operational service.
As to the relationship between the particular standard of proof for operational service and the statements of principle, the manner in which the Tribunal should approach its task was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio, 83 FCR 82 at 91. The passages in that case are now well known and we see no reason to re-capitulate them here.
The only other matter which needs to be commented upon is the decision of Kenny J in Connors v Repatriation Commission 2000 FCA 783, in which her Honour held that where subsection 3 of section 120A VEA applies an hypothesis must be supported by evidence pointing to each individual element in a statement of principle for the hypothesis to be reasonable.
At the outset of these proceedings the applicant's counsel stated that the matter of the applicant's psoriasis was not being pursued and, accordingly, we say nothing further about that condition.
The evidence as to the applicant's bronchial conditions is contained in a report by Professor Breslin dated 22 August 2001, which became exhibit R2 in these proceedings. In that report, Professor Breslin says:
After taking a history from the applicant, he has smoking-
induced airways disease with probably emphysema. His airways disease is due to the totality of his cigarette smoking. In addition, he has bronchiectasis. He had pneumonia in 1973 and again in 1984 and it is highly likely that the bronchiectasis followed the first episode of pneumonia.
He added at paragraph 10 of his report:
His airways disease is due to his cigarette smoking and, in part, also I believe to his bronchiectasis. He was, of course, more likely to develop pneumonia and subsequent bronchiecstasis that has occurred because he was a smoker and so the smoking put him at risk of developing the bronchiectasis.
From those passages it seems clear to us that the applicant's chronic bronchitis, emphysema and bronchiexstisis have been caused by his
smirepj 20.2.02 P-3
©Auscript Pty Limitedsmoking habit. In evidence to the Tribunal, Professor Breslin, after stating that what he termed smoking-induced airways disease was the same as chronic bronchitis, stated that the said disease had been present for 25 years, at least. In other words, the onset of the condition was 25 years ago, at least. It seems to us, therefore, that the question to really be resolved is did the applicant have a war-caused smoking habit and if, yes, when was that habit established. It is quite clear that on Professor Breslin's figures of 25 years at least then the conditions first became diagnosed in 1976 or earlier, most likely in 1973 with the first bout of pneumonia.
The applicant's evidence was that he joined the Naval Reserve at age 17. During that time, although he had the odd cigarette, he did not commence to smoke. Part of the reason for that was that he couldn't afford to on a reservists pay. Because of dissatisfaction with the Naval Reserve, being that he joined the Navy to go to sea and that was not happening, he secured his release on the condition that he would join the Merchant Marine and this he did. His first voyage was aboard the SS Marada which sailed along the Australian coast. Exhibit A2 in these proceedings is a statement by the applicant and in that he said:
I never smoked before going into the Merchant Marines (sic), I
started when I first went to sea, everyone smoked, we just got into the habit. Smoking helped settle the nerves and helped me to sleep.
He then said of his voyage upon SS Wanaka, which went overseas and indeed to waters of New Guinea and Borneo:
I was smoking continuously on that journey. If doing nothing would be smoking a cigarette or a pipe. You could get unlimited plug tobacco for a pipe.
In evidence-in-chief, he then added he gave up in 1985 after pneumonia in 1984. Cross-examined, he said, I first started smoking on the Marada in 1944. Minimum one packet a week to start, later explaining that one packet meant a two-ounce packet of cigarette tobacco plus he also used to smoke a pipe.
was pipe tobacco. He said that during the war alcohol and tobacco were always available to those in the merchant navy. Indeed as we understand his evidence in New Guinea cigarettes were freely and readily available from American sources.
No doubt, as he was on a ship, Marada which was a stores vessel for the RAAF, alcohol and cigarettes were readily available from those stores. He said that his smoking gradually increased when on the Marada and in answer to the Tribunal he stated that it became a
smirepj 20.2.02 P-4
©Auscript Pty Limitedminimum of 2 x 2 ounces. Post war, that he smoked one packet of two ounces a week. He did say however in previous proceedings to the Veteran's Review Board that he smoked and we quote: One packet of cigarettes per week on average. In evidence he explained that that was a mistake. What he meant to say was that he smoked one packet two ounce cigarette tobacco per week and we see no reason to doubt him on this.
There is also a note in the documents prepared for the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 that he had stopped smoking in 1946. In evidence the applicant explained that he had made that statement to an officer of the Department of Veteran's Affairs who had rung him at home, but had not been able to explain that although he stopped in 1946, he had started smoking again.
It would seem too from his evidence, that at the time he was discussing his case with that officer from the Department of Veteran's Affairs, that he was to some degree under the influence of alcohol and he now resiles from the absoluteness of that statement. He has in other evidence been entirely consistent in saying that he has continued to smoke post 1946 and again we accept his evidence in this regard.
The respondent conceded at the end of evidence, a smoking history with which the Tribunal agrees. We find from the evidence and find as a fact that whilst aboard the Marada the applicant was smoking two ounces of cigarette tobacco. In 1945 whilst on operational service he was smoking two packets of two ounces of tobacco and then he reverted as he himself stated in his own statement that in 1946 he reduced because he could not afford so much and out of health concerns that he reduced to two ounces of tobacco a week.
On the figures produced by the respondent and with which the applicant's counsel did not take issue it would appear that the applicant's smoking of roll your own cigarette tobacco and some pipe tobacco, equated to 13.3 pack years.
In Repatriation Commission v Hughes, 40 AAR 34,38 his Honour Mr Justice Davies discussed the formation of a smoking habit. He referred with approval to a previous case of re Marshall v Repatriation Commission unreported, and said, page 38:
given that the commencement of the smoking of cigarettes by Mr Marshall at least to the level above mentioned was during service given his likely abstinence from the practice prior to enlistment, given that he was then relieved of the anti smoking family pressure, given that this was replaced by peer pressure in the opposite sense, given that Mr
smirepj 20.2.02 P-5
©Auscript Pty LimitedMarshall spent much of his service life driving long distances, given that tobacco was readily and cheaply available to servicemen, given that the dangers of smoking were then unknown, a reasonable hypothesis of cause arises. In our view the connection between smoking and service was more than temporal or circumstantial, it was also of a causal nature.
We would also refer to similar statements in the case of McGlynn v Repatriation Commission, 1 Repatriation Pension Decisions, 210 at 213.
In this matter it seems to us entirely understandable that although the applicant as a young man was able to resist smoking while serving with the Naval Reserve when he joined the merchant navy a combination of factors including the very fact he could have then afforded it, peer pressure and a certain degree of apprehension contributed to his smoking habit. It must be remembered that in 1944 memories amongst merchant mariners would be still be fresh of ships that would have been sunk on Australian coast. So we find as a fact that the applicant's smoking habit did, in fact, have its cause in his service in the merchant marine.
Dealing first of all with the condition of bronchiectasis, instrument number 36 of 1997 gives as a causative factor in paragraph 5(a) suffering from pneumonia before the clinical onset of bronchiectasis. In this matter the report of Professor Breslin makes it clear that that happened in this case and the cause of the pneumonia and indeed the bronchiectasis itself was the applicant's smoking habit.
We have a difficulty with chronic bronchitis and emphysema. Operational service relates for an Australian mariner we would only mention in that regard that subsection (5) of section 6B states inter alia:
that if a person were employed as an Australian mariner on a ship undertaking a voyage, the purpose of going from a place within Australia to another place within Australia, the member is taken to have been employed within Australia during the whole of the voyage.
For reasons not explained the statement of principle in relation to chronic bronchitis and emphysema for members who have had operational service states that a factor which must exists before a connection between the condition and service can be made is smoking at least 10 pack years of cigarettes or the equivalent there of in other tobacco products before the clinical onset of chronic bronchitis and emphysema.
The equivalent instrument, number 74 of 1977 in relation to non operational service gives us a factor in paragraph 5A(2) smoking at
smirepj 20.2.02 P-6
©Auscript Pty Limitedleast 15 pack years of cigarettes it is therefore important given our finding that the applicant has 13.3 pack years of smoking to ascertain when his war caused smoking habit became established. Having regard to the evidence of the applicant, particularly where he said he gradually increased when on the Marada and his heavier smoking on Wanaka, his evidence that on board the Marada he did increase his smoking. It seems to us, and we so find, that by the time he was a crew member of SS Wanaka his war caused smoking habit was already established.
That means that the statement of principle applicable to him is instrument 74 of 1997 and we cannot be reasonably satisfied in this case as the applicant has failed to conform with the so called statement of principles. Why there should be a difference between operational and non-operational service as to pack year factors we do not know. The result however is that the decision under review is set aside while the Tribunal substitutes its own decision namely that the applicants disease of bronchiectisis is a war caused disease but that the diseases of psoriasis, chronic bronchitis and emphysema are not war caused diseases.
The matter is remitted to the Repatriation Commission in order that it might assess the rate of pension to be paid. We would only mention too that as pointed out by counsel for the applicant it is beyond understanding why an aggravation of the condition has not been dealt with by the SoP.
smirepj 20.2.02 P-7
©Auscript Pty Limited
0