Smith and Repatriation Commission (Veterans' entitlements)
[2024] AATA 2724
•5 August 2024
Smith and Repatriation Commission (Veterans' entitlements) [2024] AATA 2724 (5 August 2024)
Division:VETERANS’ APPEALS DIVISION
2022/8720File Number(s):
Re:Ian Smith
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:5 August 2024
Place:Canberra
The decision under review is affirmed.
......................[SGD]..................................................
Mr S. Webb, Member
Catchwords
VETERANS’ ENTITLEMENTS – claim for disability pension – operational service – incapacity – kind of disease – idiopathic Parkinson’s Disease – clinical onset or clinical worsening – standard of proof – Statement of Principles – hypothesis of service causation – factors – exposure to pesticides – depressive disorder or generalised anxiety disorder – smoking – ‘regular smoking habit’ threshold – factual matters raised by the materials – requirement to consider the whole of the material – hypothesis not pointed to by raised facts – no ‘reasonable hypothesis’ – disease not service-caused – decision affirmed
Legislation
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Veterans’ Entitlements Act 1986 (Cth) s 7, 9, 13, 14, 15, 21, 119, 120, 120A, 196B
Cases
Bull v Repatriation Commission [2001] FCA 1832
Collins v Repatriation Commission [2009] FCAFC 90
Dixon v Repatriation Commission [1999] FCA 582
Hill v Repatriation Commission [2005] FCAFC 23
Repatriation Commission v Deledio [1998] FCA 391
Repatriation Commission v Tuite [1993] FCA
Summers v Repatriation Commission [2015] FCAFC 36\
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
Mr S. Webb, Member
5 August 2024
Ian Smith served in the Royal Australian Navy (RAN). His service included a period of operational service in the Vietnam war. Mr Smith claimed a disability pension in respect of Parkinson’s Disease. The Repatriation Commission refused the claim on grounds the disease is not service-caused. Mr Smith applied for review of this decision by the Veterans’ Review Board (VRB). The VRB decided to affirm the decision Mr Smith’s Parkinson’s Disease is not service-caused. Mr Smith applied for review by this Tribunal.
In the course of the resulting proceedings, Mr Smith’s case has evolved. Advocates for Mr Smith suggested a number of hypotheses of causation in a serial manner.
Procedural facts
Mr Smith enlisted in the RAN on 29 July 1963. He was discharged on 28 July 1972.[1]
[1] T9, folio 65.
On 7 July 2017, Mr Smith lodged a compensation claim in respect of post-traumatic stress disorder (PTSD) and skin cancers.[2]
[2] T8.
On 8 February 2018, Dr Mary-Ellen O’Hare, a consultant psychiatrist, reported a diagnosis of PTSD following a collision between vessels at sea in 1964.[3] The doctor reported Mr Smith was diagnosed in 2011 with Parkinson’s Disease.[4]
[3] T10, folios 31-32.
[4] Ibid, folio 27.
On 12 February 2018, a delegate of the Military Rehabilitation and Compensation Commission decided to accept Mr Smith’s PTSD claim under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988.[5]
[5] T11 and T12.
On 23 January 2020, Mr Smith lodged a claim for disability pension in respect of sensorineural hearing loss and skin cancers.[6]
[6] T13.
On 18 March 2020, a delegate decided to accept Mr Smith’s claim in respect of sensorineural hearing loss and determined the rate of Mr Smith’s disability pension would be 30 percent of the General Rate from 23 October 2019.[7]
[7] T14.
Mr Smith lodged an unsigned claim for disability pension in respect of Parkinson’s Disease dated 14 May 2020.[8] The claim did not set out a connection between Mr Smith’s Parkinson’s Disease and the circumstances of his service.
[8] T15.
On 3 May 2021, a delegate decided to refuse the claim.[9]
[9] T20.
On 6 July 2021, Mr Smith applied for review of this decision.[10] In the application, Mr Smith stated:
I believe that the Parkinson’s Disease is sequela to my accepted PTSD and Exposure to Agent Orange (AO) wilst [sic] on Operation Service in Vietnam on HMAS Hobart…[11]
[10] T21.
[11] Ibid, page 138.
On 23 May 2022, the Veterans’ Review Board decided to affirm the decision to refuse Mr Smith’s claim in respect of Parkinson’s Disease.[12]
[12] T24.
On 10 September 2022, Mr Smith applied for review of this decision by the Tribunal.
Legislation
Mr Smith’s claim is to be determined under s 13 of the Veterans’ Entitlements Act 1986 (VE Act). To the extent he has applied for an increase in the rate of pension, this is to be determined under s 15. The date of effect is to be determined under s 21. With regard to the threshold issue under s 13(1) having regard to the meaning of ‘eligible war service in s 7 and ‘war-caused injury’ and ‘war-caused disease’ in s 9, the standard of proof set out in s 120 is applicable:
(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.
(2) …
(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.
Note: This subsection is affected by section 120A.
Subsections 120A(3) and (4) provide:
(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.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
The operation of these provisions and Statements of Principles (SOP) was explained in Summers v Repatriation Commission[13]:
[13] [2015] FCAFC 36.
25. Section 120(1) means that where a veteran who has rendered operational service claims a pension in respect of incapacity from injury or disease the veteran has the benefit of a reverse criminal law standard of proof in relation to whether the injury or disease is war-caused. The section does not go so far as to impose a presumption that the veteran’s injury or disease is war-caused but there is no onus on a claimant to prove that it is: see s 120(6); Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 (“Deledio”) at 98 per Beaumont, Hill and O’Connor JJ.
26. Section 120(3) operates so that, if the material before the Commission does not raise a “reasonable hypothesis” connecting the veteran’s injury or disease with the circumstances of his or her service, then the Commission shall be satisfied beyond reasonable doubt that it is not war-caused. That is, in the absence of a “reasonable hypothesis” a sufficient causal connection is deemed not to exist.
…
30. The introduction of s 120A did not otherwise alter the reasonable hypothesis concept. We respectfully agree with Heerey J’s explanation in Deledio v Repatriation Commission (1997) 47 ALD 261 at 273-275 (“Deledio v Repatriation Commission”) at first instance, approved by the Full Court, where his Honour said:
...
...it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can “uphold” the hypothesis……
49. As has been shown in a number of cases concerning ss 120(3) and 120A, the dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern. The kinds of fine questions that can arise were discussed in Elliott v Repatriation Commission [2002] FCA 26; (2002) 73 ALD 377; Cameron v Repatriation Commission [2003] FCA 1323; (2003) 77 ALD 81; Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364; and Gleeson v Repatriation Commission 34 ALD 505.[14]
[14] Ibid at [25].
A four-step analysis was set out in Delidio’s case:
(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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(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 doing so, no question of onus of proof or the application of any presumption will be involved.[15]
[15] Delidio, at [98].
Period of service
Mr Smith served in the RAN from 29 July 1963 to 29 July 1972. He has operational service from 16 March 1970 to 9 October 1970.
During the period of his operational service, Mr Smith served on HMAS Hobart, running gun lines in waters off the coast of South Vietnam.
Kind of disease
Mr Smith’s disability pension claim is in respect of Parkinson’s Disease.[16]
[16] T15.
The Commission accepted Mr Smith’s claims in respect of sensorineural hearing loss and tinnitus.[17]
[17] T14.
The ‘kind of disease’ is a factual matter about which the decision-maker must be reasonably satisfied on the available materials.[18]
[18] Collins v Repatriation Commission [2009] FCAFC 90, per Mansfield and Stone JJ at [18]-[20].
In or about 2010 or 2011, Mr Smith first experienced symptoms of Parkinson’s disease.[19]
[19] T17, folio 49; T8 folio 57.
It is probable the diagnosis of Parkinson’s Disease was confirmed by Professor Iansek (a neurologist) in or about 2012.[20] I understand Professor Iansek produced a report, but the report cannot now be located, and it is not in evidence before the Tribunal.
[20] T8, folio 57.
In 2020, Mr Smith was diagnosed with Lewy Body dementia,[21] although that condition is not subject to the pension claim currently under review.
[21] T17, folio 49.
On 5 March 2021, Dr Sellbach (another neurologist) stated:
Diagnosis of PD is clinical. I confirmed the diagnosis in 2013 based on cardinal clinical findings of asymmetric rigidity and bradykinesia, in the absence of atypical features. His positive response to Levodopa and later development of dyskinesias is further evidence supporting the diagnosis.[22]
[22] Ibid.
Dr Sellbach stated the cause of Mr Smith’s Parkinson’s Disease was “Idiopathic”. Use of this adjective simply signifies the Parkinson’s Disease arose spontaneously, of unknown origin, without the cause being known.
Dr Sellbach was not called to give oral evidence. The content of the doctor’s opinion is not controversial.
Considering all the relevant evidence, I am satisfied Mr Smith’s ‘kind of disease’ under claim is Parkinson’s Disease.
Clinical onset
There is no controversy about the clinical onset of Mr Smith’s Parkinson’s Disease even though it is not possible to determine a precise date on the present evidence. The parties contend clinical onset occurred at the earliest in 2011 and no later than 2013.
Dr Sellbach confirmed the existence of clinically significant symptoms consistent with idiopathic Parkinson’s disease in 2013. I will proceed on that basis.
Does the material point to a hypothesis connecting the disease with Mr Smith’s operational service?
A number of hypotheses linking Mr Smith’s Parkinson’s Disease with his operational service have been suggested by Mr Smith’s lay advocates. These include exposure to Agent Orange during Mr Smith’s operational service, as a sequel to Post Traumatic Stress Disorder following the collision of HMAS Voyager and HMAS Melbourne and, most recently, a regular smoking habit which allegedly began during his operational service.
Mr Smith’s present lay advocate, Mr John Horan, explained the hypotheses relating to Agent Orange and Post Traumatic Stress Disorder (or any other depressive or anxiety disorder) are no longer pressed and have been foregone.
I have reviewed the available materials and I am satisfied Mr Horan’s concession is well made. There is insufficient material before the Tribunal to raise hypotheses connecting Mr Smith’s Parkinson’s Disease and his alleged exposure to Agent Orange or his PTSD (or any other kind of depressive or anxiety disorder) with the circumstances of his operational service.
The hypothesis of connection for which Mr Smith presently contends runs along the following lines:
(a)Mr Smith served on HMAS Hobart during the period of his operational service;
(b)HMAS Hobart was deployed off the coast of South Vietnam, running ‘gun lines’ and engaging in shore bombardment for periods of up to one month, and attending various ports for resupply and rearmament;
(c)Mr Smith was an electrician whose duties included:
(i)maintaining the ICARA anti-submarine system;
(ii)replenishing stores;
(iii)moving armaments into the magazine; and
(iv)night watches, ensuring that machinery was not overheating and assisting radar operators with electrical adjustments and screen displays;
(d)night watches were stressful;
(e)life on board was often boring and, to pass the time, Mr Smith would play cards and Tombola, and occasionally watch movies;
(f)most of Mr Smith’s crewmates smoked – cigarette smoking was allowed in most areas of the vessel and cigarettes were cheaply and widely available;
(g)consequently, after a while, Mr Smith formed a regular smoking habit, commencing with 5 cigarettes per day in or about March 1970 and increasing to 20 cigarettes per day;
(h)Mr Smith ceased smoking in or about March 1988; and
(i)he experienced the clinical onset of Parkinson’s Disease in the period from 2011 to 2013.
There is scant material, including evidence given by Mr Smith, to support elements of this hypothesis.
Most crucially, the hypothesis Mr Smith formed a regular smoking habit in or about March 1970 which was causally related to the circumstances of his operational service lacks supporting material, and it is posited despite a conflict in the evidence about Mr Smith’s smoking history.
As will appear, on the one hand, there is documentary evidence over a period of years of Mr Smith stating he never smoked. On the other hand, Mr Smith gave and adduced evidence in these proceedings which supports the hypothesis. There is no contemporaneous evidence, one way or the other, in Mr Smith’s service and related medical records which are before the Tribunal.
On 21 February 2011, Dr Gerald Bulger, Mr Smith’s then treating general practitioner, referred him to Dr Vanitha Parnanand in the Neurology Department of Cairns Base Hospital. In the letter of referral, Dr Bulger recorded “Health & Lifestyle Smoking: Never Smoked Drinking: Drinks 1/week”.[23]
[23] Exhibit 2, page 14.
On 1 June 2012, Dr Bulger referred Mr Smith to Professor Peter Sillburn, a neurologist. In the letter of referral, Dr Bulger recorded “Health & Lifestyle Smoking: Never Smoked Drinking: Drinks 1/week”.[24]
[24] Ibid, page 1.
On 24 June 2013, Dr Peter Delmar, a doctor in the Emergency Department of the Cairns Base Hospital, recorded the following relevant note:
Never smoked
Nil alcohol since Parkinson’s Dx[25]
[25] Ibid, page 12.
On 5 March 2014, Mr Smith completed a New Patient Questionnaire for ‘The Family Doctor’ practice in Cairns. The form sought information about general health, including:
Smoking: Never Ex-smoker Smoker Y/N Amount a day
Mr Smith circled ‘Never’.[26]
[26] Ibid, page 3.
In a Health Summary Sheet printed on 31 March 2015 in the practice of Dr Lindsay Eccles, a general practitioner, Mr Smith is recorded as having “Never smoked”.[27]
[27] Ibid, page 6.
On 8 February 2016, Dr Florecilla Nelmida-Ecube, a general practitioner, referred Mr Smith to Dr Neville Collins, a dermatologist, and set out Mr Smith’s smoking and alcohol history:
Non smoker, Non smoker, Non drinker[28]
[28] Ibid, page 17.
In the claim for disability pension Mr Smith signed on 13 December 2019, he answered ‘No’ to the questions “Have you ever smoked?” and “Have you filled out a smoking questionnaire previously?”[29] He answered ‘Yes’ to the question “Have you ever consumed alcohol?”. In this claim, Mr Smith signed a declaration which included “I declare that the details I have given in this form are true and correct”.[30]
[29] T13, folio 83.
[30] Ibid, folio 88.
In the claim for disability pension in respect of Parkinson’s Disease, which is unsigned but dated 14 May 2020, the questions “Have you ever smoked?” and “Have you filled out a smoking questionnaire previously?” are ticked ‘No’, but the question “Have you ever consumed alcohol?” is ticked ‘Yes’. [31]
[31] T15, folio 104.
On 9 February 2022, Dr Sonia Jitpiriyaroj, a general practitioner, completed a Service Referral for Mr Smith to see Dr Kim Forrest in which Mr Smith’s “Smoking Status” is recorded as “Never Smoked”.[32]
[32] Exhibit 2, page 9.
On 2 July 2023, Mr Smith signed a Smoking Questionnaire.[33] The Questionnaire sets out the following typed information:
(a)Mr Smith first started smoking on a regular basis on 21 March 1970;[34]
(b)at that time he smoked approximately 5 cigarettes per day;[35]
(c)he stopped smoking permanently in March 1988;[36]
(d)his smoking habit changed gradually “as the habit became more established”;[37]
(e)in “01/2009” he was smoking 20 cigarettes per day;[38] and
(f)in “01/1988” he smoked “Nil” cigarettes per day as “I was divorced from my first wife and had sole custody of our four children. Smoking was a luxury I could not afford at the time”.[39]
[33] Exhibit 4.
[34] Ibid, page 1.
[35] Ibid.
[36] Ibid.
[37] Ibid, page 2.
[38] Ibid.
[39] Ibid.
The information in the Questionnaire was altered by hand: a line was drawn through “01/2009” and “10/1970” was added. The change was initialled.
Mr Smith gave some oral evidence in chief addressing these matters and his previous denials of ever having smoked. He explained he previously denied smoking for two reasons: his current (second) wife is against smoking and he did not want her to know he had smoked; and at the time, smokers were denied medical treatment and he did not want to be included in that.
Mr Smith’s wife was not called to give oral evidence despite express opportunity to do so during the hearing.
Unfortunately, Mr Smith became distressed and confused, and he was unable to complete his evidence. He was not cross-examined. Consequently, inconsistencies and other controversial aspects of his evidence, such as it was, have not been tested or clarified.
The Commission asserts Mr Smith’s account in 2023 is not plausible when it is considered against all the material which points to him never smoking. Furthermore, the Commission raises questions about the reliability of Mr Smith’s untested evidence and argues it should not be accepted.
At this stage, proof of facts does not arise, rather the Tribunal must consider the whole of the material before it and determine if the hypothesis connecting Mr Smith’s Parkinson’s Disease with the circumstances of his operational service is pointed to or raised by the evidence. For this threshold to be met, the Tribunal must consider all the material and, without engaging in weighing evidence in order to find facts, determine if the hypothesis is “fairly raised” by the material, [40] albeit the facts on which it is raised are not yet proved:
An hypothesis is neither pointed to, nor raised, unless it emerges both obviously and directly from the evidence in question. If it is necessary to couple a fertile imagination with a selective rendition of the evidence in order to create the hypothesis, it is not an hypothesis of the kind which the Full Court in Deledio had in mind.[41]
[40] Hill v Repatriation Commission [2005] FCAFC 23 at [97].
[41] Ibid, at [98].
That said, in this process, the Tribunal is not concerned with determining the accuracy of the material on which the hypothesis is raised,[42] but it is obliged to look at all the material, not just some of it.[43] Clearly enough, the requirement for material to point to some fact or facts which support the hypothesis applies to the links it posits connecting the veteran’s disease with the circumstances of the relevant service.
[42] Dixon v Repatriation Commission [1999] FCA 582 at [24].
[43] Bull v Repatriation Commission [2001] FCA 1832, per Emmet and Allsop JJ at [21].
It is important to note, Mr Smith’s cognitive processes are affected by the Parkinson’s Disease and Dewy Body Dementia from which he suffers. These conditions affect his cognitive functions and his memory. Allowances were made and a good deal of latitude was given in order to accommodate Mr Smith and to ensure he was given a reasonable opportunity to present his case with the assistance of his wife, daughter and his lay advocate, John Horan.
Mr Smith’s evidence, such as it was, is clearly affected by his cognitive issues. Initially, Mr Smith gave evidence he commenced smoking in 1988, he then revised this to 1970. When shown the Smoking Questionnaire, he explained he changed the “01/2009” entry but he was unsure if he initialled the change (I understand the change was made and initialled by Mr Horan). He thought the information in the Smoking Questionnaire was “about right”. When asked about smoking 20 cigarettes per day, Mr Smith explained this could have been in 2000, but it was only “at the very end”. When asked about whether he smoked 20 cigarettes per day during his deployment on HMAS Hobart or later, “at the very end”, he could not recall which is correct.
While I am sympathetic to Mr Smith’s mental condition and his difficulty giving evidence, it is very clear there are real questions about the content of his evidence, as the Commission correctly asserts. By his own account, Mr Smith is not able to recall key information about his alleged smoking habit. In these unfortunate circumstances, there are also real questions about the information contained in the Smoking Questionnaire Mr Smith signed in July 2023. It is not possible to determine if the information in the Questionnaire reflects Mr Smith’s actual memory of events many years ago or something else.
Mr Smith’s long-term friend from childhood, Geoffrey Harris, provided a brief statement.[44] Mr Harris stated he does not recall Mr Smith being a smoker in 1965, which he observed “was interesting as his family were all heavy smokers”.[45] Mr Harris stated he noticed Mr Smith was smoking during a family get-together at Christmas in 1970 and, “to the best of my knowledge” Mr Smith was “still a regular smoker” on discharge from the RAN in 1972. Mr Harris also stated “[Mr Smith’s] fourth child was born in 1976 or 1977 and my recollection is that, at that time, he was no longer smoking” and “I know that he started smoking after his service in Vietnam and was a regular smoker, but am unable to state, with any degree of certainty, when he ceased smoking”.[46]
[44] Exhibit 3.
[45] Ibid, page 1.
[46] Ibid, page 2.
Mr Harris declined to give oral evidence and he was not called or required to do so. His statement has not been tested in any way. I note Mr Harris’ statement was taken into evidence over the Commission’s objection.
Considering the whole of the material, there are questions about the information set out in the Smoking Questionnaire Mr Smith signed in July 2023. The document suggests Mr Smith developed a regular smoking habit from 21 March 1970, commencing with 5 cigarettes per day and progressing to 20 cigarettes per day by October 1970 which is attributable to the circumstances of his operational service. It is unlikely Mr Smith would have such precise recollection of the alleged smoking history. Who completed the document and in what circumstances is unclear. The source of the information and the basis on which it is set out in the questionnaire has not been established. It is clear that Mr Smith signed the document, but it is not clear he had independent knowledge or recollection of the details it contains, and it is not clear he understood the declaration he was making by doing so.
The Commission asserts Mr Smith’s account in 2023 is not plausible when it is considered against all the material which points to him never smoking. Furthermore, the Commission raises questions about the reliability of Mr Smith’s untested evidence and argues it should not be accepted. There is some force to this submission.
This notwithstanding, Mr Smith’s evidence and the Smoking Questionnaire must be considered with all the material in evidence when determining if all the material points to or raises the hypothesis Mr Smith contends for.
Considering the whole of the evidence and the hypothesis Mr Smith has posited, two substantial difficulties arise.
The first difficulty is Mr Smith’s evident cognitive difficulty recalling events in 1970 and his inconsistent evidence in respect of his alleged smoking habit.
Without engaging in fact finding or evaluation of the probative value of the evidence, for present purposes, the question is whether the material is sufficient to point to or raise the hypothesis when considered with all of the evidence before the Tribunal. Clearly enough, there are real questions about the evidence given by Mr Smith and Mr Harris, as well as the Smoking Questionnaire and the information it contains; but these are not questions to be addressed at this stage. The material suggesting Mr Smith increased his smoking habit to 20 cigarettes per day in October 1970 was changed from January 2009. Mr Smith’s untested oral evidence suggests he reached the level of 20 cigarettes per day only “at the very end” of the period in which he smoked, although his evidence on this point was somewhat confused.
The inconsistencies are compounded by Mr Harris’ evidence (albeit untested). On Mr Harris’ material, Mr Smith began smoking “after his service in Vietnam” and he was observed smoking at a family function for Christmas in 1970.
Regarding when Mr Smith ceased smoking, there is some material from Mr Smith this occurred in 1988, possibly in January or in March, although his evidence on this point was also quite confused (he referred to smoking in 2000 at one point). Mr Harris’ material suggests Mr Smith ceased smoking around the time of the birth of his fourth child in 1976 or 1977.
It is difficult to know what to make of this material when considered in the context of documentary materials which point to Mr Smith having never smoked.
The second difficulty is the lack of material supporting a causal connection between Mr Smith’s alleged smoking habit and the circumstances of his operational service. A temporal connection between Mr Smith’s operational service and him allegedly taking up smoking and engaging in a regular smoking habit is not sufficient.[47] The only relevant material is from Mr Smith in and after July 2023. Mr Smith’s evidence, albeit far from clear, suggests boredom, the prevalence of smoking and the availability of cigarettes were factors in him taking up smoking. These possibilities arise from Mr Smith’s oral evidence, alone, and they point to a temporal rather than a causal connection between the circumstances of his operational service and his alleged regular smoking habit.
[47] Woodward v Repatriation Commission [2003] FCAFC 160 at [82]-[85].
Doing the best in these difficult circumstances, when all the material in evidence is considered, I am not persuaded the material points to or raises the hypothesis for which Mr Smith contends. While there is some material pointing to elements of the hypothesis, albeit attended by inconsistencies, the materials are not sufficient to raise important elements of the hypothesis. The key causal element of the hypothesis lacks supporting material.
Consideration of the applicable SOP does not lead to any different result. As will appear, the applicable SOP reinforces the requirement for a causal connection with the relevant service, consistent with the language of s 9(1), s 120(3) and s 120A(3) of the Act, and the lack of material going to that point means the hypothesis does not conform to the template of the SOP.
Is an applicable Statement of Principles (SOP) in force?
The Repatriation Medical Authority determined an SOP in respect of Parkinson’s Disease, namely SOP Number 55 of 2016 in respect of Parkinson’s Disease and Secondary Parkinsonism (SOP 55/2016).
Does the template of the SOP uphold the hypothesis?
The SOP 55/2016 sets out factors which must exist before it can be said a reasonable hypothesis has been raised connecting Mr Smith’s Parkinson’s Disease with the circumstances of his operation service.
Mr Smith relies on the factor in s 9(1)(h), namely:
In a person with a history of a regular smoking habit as specified, having not smoked for at least five years before the clinical onset of Parkinson’s disease.
The term ‘regular smoking habit’ is given meaning in Schedule 1 of the SOP:
regular smoking habit as specified means having smoked at least 3 pack-years of cigarettes or the equivalent thereof in other tobacco products.
I note the factors in s 9(1)(a) and (g) were raised in contention early in the proceedings. Mr Horan informed the Tribunal these factors are no longer pressed. Having considered the evidence, this concession is well made. The evidence does not raise a hypothesis which would be upheld by either of these factors in connection with Mr Smith’s operational service.
No other factors in s 9 of SOP 55/2016 are presently relevant or applicable.
Consequently, for Mr Smith’s hypothesis of connection to be a ‘reasonable hypothesis’, without finding facts, the material must point to Mr Smith having a history of a ‘regular smoking habit’, smoking at least 3 pack-years of cigarettes, which is connected with the circumstances of his operation service. It must also point to him ceasing smoking at least 5 years before the clinical onset of his Parkinson’s Disease.
Even if Mr Smith’s hypothesis were to be raised on the whole of the evidence before the Tribunal (and I have found it is not), it is on the first limb of the factor in s 9(1)(h) of the SOP 55/2016, the connection with his operational service, that Mr Smith’s case fails.
As I have said, there is very scant material which goes to the causal connection between Mr Smith’s alleged smoking habit and the circumstances of his operational service. Stepping past the aforementioned difficulties with Mr Smith’s cognitive issues, a number of hypothetical possibilities are touched on the Mr Smith’s case: he started smoking because he was stressed when undertaking night watch duties; he was bored, cigarettes were widely and cheaply available and most people on HMAS Hobart smoked; and Mr Smith was subjected to peer pressure to smoke and there was a smoking culture prevalent on HMAS Hobart at the time.
Of these possibilities, the proposition Mr Smith was stressed when undertaking night watch duties appears in the Statement of Facts, Issues and Contentions Mr Horan provided for the purposes of these proceedings. [48] It is a possibility, but not one that is pointed to by the material in evidence before the Tribunal. The proposition Mr Smith was subjected to peer pressure and there was a prevalent culture of smoking arises from Mr Horan’s oral submissions, without supporting material. Once again, these possibilities might be open but the material before the Tribunal does not point to either of them.
[48] Applicant’s Statement of Facts, Issues and Contentions, 23 May 2023, at [5.6].
Mr Smith’s oral evidence, at the highest, is that during the period of his operational service he was often bored as the work was mundane, cigarettes were readily and cheaply accessible and most people smoked. This material points to a context in which Mr Smith commenced smoking. The question is whether there is material pointing to the circumstances Mr Smith has identified on HMAS Hobart causally contributing to him consuming tobacco and developing a regular smoking habit. In order to raise the hypothesis of connection, it is not enough for the material to point to the setting in which Mr Smith is alleged to have commenced smoking without pointing to the contributory cause of this event.[49] More is required. Without material pointing to or raising a causal connection between the circumstances Mr Smith identified on board HMAS Hobart and his alleged smoking habit, the hypothesis lacks supporting material.
[49] Repatriation Commission v Tuite [1993] FCA 39 at [5].
The causal link cannot be met by speculation. One does not need a vivid imagination to conceive of causal possibilities, but speculating about naked possibilities without supporting material, albeit not tested or proved, is insufficient. It is conceivable, for example, Mr Smith might have experienced stress conducting night watches during periods of shore bombardment which caused him to take up smoking, as Mr Horan contends, or perhaps he was subjected to peer pressure to take up smoking in the context of a shipboard culture in which smoking was the norm. No such causal link is pointed to by the materials. At the highest, Mr Smith’s evidence points to him experiencing boredom and playing cards or Tombola, or watching movies, to pass the time and taking up smoking. It cannot be assumed boredom caused Mr Smith to take up smoking without material pointing to such an eventuality. The causal step must be pointed to or raised by material. The coexistence of these assumed facts does not imply a causal connection. Simply making the assertion does not amount to material pointing to a causal connection on which the connection can be found to have been raised.
The present material, including Mr Smith’s evidence (albeit untested and unproved), does not point to the service-related contributory cause or causes of Mr Smith consuming tobacco and developing a regular smoking habit. The material, such as it is, points to Mr Smith being bored, playing cards and Tombola, having ready access to cigarettes and being in the company of others who smoked, and taking up smoking. The causal step between such circumstances and Mr Smith commencing smoking is not pointed to by the available material and it is left open.
At this point it must be noted the Tribunal should have regard to the beneficial nature of the Act and the matters set out in s 119(1) of the Act. Section 119 is a procedural provision which does not disapply the applicable standard of proof under s 120 and s 120A. Under s 119(1)(g) and (h), the Tribunal is required to act in accordance with the substantial justice and merits of the case, and to take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance.
These requirements and the beneficial nature of the Act do not authorise the Tribunal to fill in gaps where the evidence is not sufficient to support an applicant’s case, including in respect of a causal link in a chain of connection between Mr Smith’s Parkinson’s Disease and the circumstances of his operational service.
I have carefully considered and taken into account Mr Smith’s cognitive issues and the related material difficulties raising or pointing to facts which, if proved, would support the hypothesis he has posited as reasonable. I have also taken into account the difficulties obtaining witnesses to event more than 50 years ago, including Mr Harris’ reluctance to give oral evidence.
This notwithstanding, in consideration of all the available materials, the hypothesis Mr Smith posits, linking his Parkinson’s Disease with the circumstances of his operational service, is not pointed to or raised by the materials before the Tribunal. When the whole of the material is considered, the hypothesis is at best tenuous and the key causal element is left open and it is not sufficiently or fairly raised by the material.
The material does not point to him having had a ‘regular smoking habit’ which is causally connected with the circumstances of his operational service. That being so, it cannot be said SOP 55/2016 upholds the hypothesis posited by Mr Smith.
On the matter of quantum in respect of a ‘regular smoking habit’, there is scant material, albeit generously construed, which points to Mr Smith smoking more than 3 pack-years of cigarettes. There are inconsistencies in the materials pointing to when Mr Smith commenced smoking, when or over what period of time the amount of cigarettes he smoked increased from 5 to 20 per day, and when he ceased smoking. Nevertheless, within the evidence there is material which points to him smoking more than 3 pack-years of cigarettes and ceasing smoking more than 5 years prior to the clinical onset of Parkinson’s Disease in the period from 2011 to 2013.
Nevertheless, I am unable to find Mr Smith’s hypothesis is a ‘reasonable hypothesis’ for the purposes of s 120A(3) and s 120(3) of the Act and, that being so, I am satisfied that there is no sufficient ground for determining Mr Smith’s Parkinson’s Disease is a war-caused disease.
Conclusion
Mr Smith’s claim for disability pension in respect of Parkinson’s Disease is not made out. The hypothesis advanced for Mr Smith, connecting this Disease with the circumstances of his operation service, is not raised on the materials before the Tribunal. It is not upheld by SOP 55/2016. Even though there is material pointing to Mr Smith having a history of a ‘regular smoking habit’, albeit not entirely clear, and without proof of facts, the material does not raise or point to the causal link between his alleged regular smoking habit and the circumstances of his operational service. The gap cannot be bridged by speculation or assumptions, or by calling upon the procedural latitude which is to be afforded under s 119(1)(f), (g) and (h) of the Act.
For these reasons, the decision to refuse Mr Smith’s disability claim must be affirmed.
Decision
Decision affirmed.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.
..........................[SGD]..............................................
Associate
Dated: 5 August 2024
Date(s) of hearing: 24 May, 4 and 24 June 2024 Advocate for the Applicant: J Horan Solicitors for the Respondent: R Blake, HWL Ebsworth Lawyers
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