Smith and Repatriation Commission - [2000] AATA 833

DECISION AND REASONS FOR DECISION [2000] AATA 833

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T1999/170

VETERANS' APPEALS DIVISION       )
           Re      SHIRLEY KNOLLYS SMITH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J Handley (Senior Member)

Date15 September 2000
PlaceHobart

Decision      The decision under review is set aside and in substitution it is decided that the death of Gifford Arthur Smith was war-caused.
   [Sgd J Handley]
  Senior Member
CATCHWORDS
Veterans' Entitlements – re-hearing after remission by Federal Court – widows' application – deceased commenced smoking after enlistment – whether assumption permissible – whether smoking arose out of or was attributable to service – decision set aside – death war-caused.
Veterans' Entitlements Act 1986 – s.120(1) and (3)
Horne v Repatriation Commission (1996) 24 AAR 127
Bushell v Repatriation Commission (1992) 16 AAR 1
Byrnes v Repatriation Commission ((1993) 18 AAR 1
Critch v Repatriation Commission (1996) 43 ALD 574
Stares v Repatriation Commission (1996) 66 FCR 594

REASONS FOR DECISION

15 September 2000 Mr J Handley (Senior Member)

The Repatriation Commission decided on 12 September 1997 that the death of Gifford Arthur Smith was not war-caused. The Veterans' Review Board affirmed that decision on 23 June 1998 as did the Administrative Appeals Tribunal on 4 June 1999.
The solicitors for Mrs. Smith lodged an appeal in the Federal Court against the decision of the AAT and on 28 October 1999 Heerey J allowed the appeal, set aside the decision of the Tribunal and remitted the application to the Tribunal for further hearing and determination pursuant to s.44(4) and (5) of the Administrative Appeals Tribunal Act 1975.
The further hearing of the application before this Tribunal was conducted on 11 September 2000 before a differently constituted Tribunal.
The Facts
The deceased was a member of the Australian Army between 14 July 1942 and 24 October 1945. Some of his service was in the Northern Territory and by reason of the location of service it was conceded by the respondent that the applicant was engaged in operational service. The late Mr. Smith died on 11 March 1989 aged 66 years from causes of death certified in the death certificate to be "massive pulmonary embolus-minutes, venous thrombosis-weeks". The hypothesis advanced at the initial hearing by Mr. Webster who appeared on behalf of Mrs. Smith was that the death by massive pulmonary embolus and venous thrombosis followed an admission to hospital for surgical repair of bilateral hernia. The hernia were a consequence of weakened abdominal walls by reason of increased abdominal pressure by persistent and chronic coughing by the deceased which had its origin in a heavy smoking habit.
All elements of the above hypothesis were conceded by the respondent but for the issue of whether the smoking by the deceased veteran was attributable to, or arose out of, his war service.
The AAT in the initial hearing decided "there was insufficient evidence to connect the deceased's smoking with his war service", and the applicant was "unable to establish a reasonable hypothesis as required under s.120(3) of the Act".
For the purposes of the re-hearing all relevant Statements of Principles were conceded by the respondent as having been satisfied.
Mr. Webster said at the commencement of the re-hearing that Mrs. Smith had recently suffered a myocardial infarction, was unwell and was unable to attend the Tribunal to give evidence. It was proposed to rely on the documented evidence lodged with the Tribunal comprising the documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act, the transcript of the previous proceedings, and other documents found within the appeal book lodged with the Federal Court prior to the hearing of the appeal.
Mr. Webster submitted that there was much to permit a finding that the deceased commenced what became a lifelong habit of heavy and chronic cigarette smoking after he enlisted. He pointed to page 3 of the appeal book being part of an application for pension lodged by Mrs. Smith. In that document Mrs. Smith recorded that her husband "started smoking approximately 12 months after enlisting in the Army. He had never smoked before this time. He became a very heavy smoker, up to 80 cigarettes or more per day as a consequence of this habit, he developed a chronic cough."
In a "smoking statement" completed by Mrs. Smith found at page 7 of the appeal book she recorded that her husband began smoking "12 months after joining the Army", and that "pre-enlistment" he "did not smoke".
At page 34 of the transcript of the AAT proceedings, Mrs. Smith said that her husband was smoking cigarettes when she first met him (which was after he enlisted). She said that he started smoking "when he was in the Army". At page 36 of the appeal book, Mrs. Smith said that she recalled sending her husband parcels which included cigarettes during his enlistment because "all he seemed to want, was cigarettes".
Mr. Webster said that the persons referred to in the smoking questionnaire being persons able to "substantiate" the deceased's smoking habit, were either elderly or infirm, or deceased. Accordingly, it was not proposed to call any evidence at the hearing of the appeal on 11 September.
The Legislation
Relevantly s.120(1) and (3) of the Veterans' Entitlements Act 1986 apply in the present application. Those sections read as follows:-
"(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."

Conclusion

In Bushell v Repatriation Commission (1993) 29 ALD 1 at p.8, Mason CJ , Deane and McHugh JJ said:-
"The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true."
In Byrnes v Repatriation Commission (1993) 30 ALD 1 at p.5, Mason CJ, Gaudron and McHugh JJ said:-
"In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered."
Mr Webster submitted that a number of facts are capable of being assumed in the present application so as to permit the hypothesis as being reasonable.
He submitted that the deceased did not smoke prior to enlistment, but commenced to smoke during enlistment. He submitted that the deceased was a relatively young man who commenced to live in a different environment, and in a different style of life. He became subject to discipline and routine, and was subject to the influence of his peers and other older persons. He submitted that the deceased entered into an environment where cigarette smoking was socially acceptable, encouraged, often prescribed by doctors and where cigarettes were freely and readily available at a subsidised cost. If followed, he said, that smoking arose out of or was attributable to service.
He submitted that there was much to support these facts from what is generally known from other veterans applications and that an assumption of these facts was permissible. He submitted that it was not an abstract hypothesis, but consistent with what is known of service conditions and service life.
Mr. Webster relied upon paragraph 15 of the reasons for decision of Heerey J, delivered following the appeal in the present application where His Honour said:-
"The hypothesis sought to be raised was not merely an abstract one. It was accepted by counsel for the Commission in argument in this Court that the temporal element was sufficiently raised. Nor was it contested that peer pressure can lead to the acquisition of a smoking habit, or that if such peer pressure came from the veteran's fellow soldiers there would be the necessary connection with his service. Thus the only remaining element needed to complete the hypothesis was that peer pressure in fact caused the veteran to commence smoking. The authorities already referred to show that such an element can, in appropriate circumstances, be raised by assumption. It does not have to be proved (at the s.120(3) stage) by evidence."
It was submitted in conclusion that the veterans have no onus of proof under the Veterans' Entitlements Act and the Tribunal should find as a fact that the hypothesis advanced by Mrs. Smith was reasonable.
Mr. Castle who appeared on behalf of the respondent acknowledged that a temporal connection did exist between the deceased's service and his smoking habit, yet submitted it would be unsafe to conclude that a reasonable hypothesis could be established connecting service with smoking. He said that there was nothing in the evidence to connect the service of the deceased with him commencing to smoke cigarettes and said that the assumed facts referred to earlier by Mr. Webster were no more than facts universally found in all service personnel during the second World War. He said that none of these factors could be directly associated with the deceased, and that there was "paucity of information" to permit any finding of the deceased's smoking habit being attributable to or arising out of his service.
Heerey J, highlighted (at paragraph 9 of his decision) language which he said caused the Tribunal to err "in holding in effect that the causative element of the hypothesis was not raised because there was no direct evidence establishing it".
In reaching this conclusion, His Honour (having referred to a number of leading authorities) reaffirmed that it is permissible to assume facts, without proof, in order to find that a hypothesis is reasonable.
In Horne v Repatriation Commission (1996) 24 AAR 127, Hill J at 136, summarised a number of "principles" with respect to s.120(1) and (3) following the decisions of the High Court in Bushell v Repatriaton Commission (1992) 16 AAR 1, and Bynes v Repatriation Commission (supra). The "principles" as recorded by Hill J, are found at p.135 and 136.
Coincidentally, the appellant in Horne v Repatriation Commission served in the Northern Territory and either commenced to smoke, or increased his smoking habit during service. His Honour concluded:
"The Tribunal's failure to appreciate that it could make assumptions, just as the High Court had done in Byrnes, and the Full Court of this Court had done in Stares was an error of law".
Indeed, Horne v Repatriation Commission decided that assumptions are permissible, and facts may be 'inferred'. Support for this proposition is to be found by the decision of Critch v Repatriation Commission (1996) 43 ALD 574 at 579 and 583 and Stares v Repatriation Commission (1996) 66 FCR 594.
I am satisfied and find as a fact that the deceased commenced smoking after his enlistment. I am satisfied also that the smoking habit of the deceased was attributable to or arose out of his service.
Applications involving veterans are common place at this Tribunal and the circumstances of service are heard frequently either by veterans or by their widows. Often the circumstances of service were apparently so horrific, or disturbing, that veterans have been loath, or reluctant to discuss them. Yet it is common to hear applications involving young men who have often had one or two years of civilian employment after leaving school and having remained at home with their parents and family becoming enlisted, trained and sent off to theatres of war, returning during furlough with an entrenched smoking or alcohol habit.
The decisions referred to above, all refer to the acquisition of these habits within service and the analysis given by Mr. Webster during this hearing, referred to earlier, contains elements common to most veterans applications where a smoking habit is acquired.
What is known about the deceased is that he enlisted at the age of 20 and was a non-smoker. It appears from the T documents filed that he was already a member of the teaching profession. At the conclusion of his service he had developed what emerged as a lifelong habit of 80 cigarettes per day. He served in the Northern Territory, north of the relevant geographical location which permits this application to be determined by the standard of proof found at s.120(3) as opposed to s.120(4).
It was said that there was nothing else known about the deceased's service, yet at page 10 of the transcript, Mrs. Smith said when referring to her practice of sending cigarettes in ration packs to her husband, "All he seemed to want was cigarettes. See they be on a lot of tension up there I suppose, I don't know". Additionally, Mrs. Smith at page 8 of the transcript - having been asked when he had commenced to smoke – said "I think most of his friends were smokers, because they sort of copied each other, don't they".
The deceased in a claim form dated 18 December 1986 found at page 81 of the T documents said that the duties in service which gave rise to his hernia were "A lot of lifting and moving supplies in concentrated time periods".
In another claim form in respect of left leg venous thrombosis, Mr. Smith in July 1968 said "All my service was in infantry units and during this time I marched many hundreds of miles under all kinds of conditions in particular during 2 years in the Northern Territory under tropical conditions and I feel that this would have in some way been a contributory cause to the gradual appearance of the above incapacity".
Whether the deceased took up smoking because of its perceived effects at being a relaxant, or because of boredom, or the pressure or need to acquiesce, or conform with peers or because it was encouraged or was socially acceptable or was readily available or a combination of two or more of these factors, I am unable to say, other than I am prepared to assume that these are features consistent with the circumstances of camp life and capable of having a causal influence upon the deceased taking up to smoking (refer Repatriation Commission v Tuite 1993, 39 FCR 540 at 545).
I am in all the circumstances satisfied that the material raised by this application points to a reasonable hypothesis connecting the death of the late Mr. Smith with his service. In reaching this conclusion, I have assumed the existence of facts, as material raising and pointing to the reasonableness of the hypothesis. I am satisfied that the hypothesis is not contrary to known scientific fact, nor am I satisfied that it is fanciful or untenable.
The remaining issue is the application of s.120(1) of the Act.
Applying the methodology adopted in Byrne v Repatriation Commission (at p.6), I am satisfied that this "claim" must succeed because one or more of the facts necessary to support the hypothesis has not been disproved beyond reasonable doubt, nor am I satisfied that the truth of another fact within the material is inconsistent with the hypothesis and which has been proved beyond reasonable doubt.
It follows that the decision of the respondent and the Veterans' Review Board must be set aside and in substitution for it, it is decided that the death of the late Gifford Arthur Smith was war-caused.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley (Senior Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  11 September 2000
Date of Decision  15 September 2000
Counsel for the Applicant
Solicitor for the Applicant         Mr R M Webster
Counsel for the Respondent
Solicitor for the Respondent    Mr M Castle (Dept of Veterans' Affairs)