Smith and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 258
•22 April 2016
Smith and Repatriation Commission (Veterans’ entitlements) [2016] AATA 258 (22 April 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2015/2467
Re
Stephen Smith
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 22 April 2016 Place Sydney The decision under review is affirmed.
........................[sgd]................................................
Senior Member J F Toohey
CATCHWORDS
VETERANS’ ENTITLEMENTS– multiple sclerosis – cigarette smoking – whether related to service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986
Statement of Principles Concerning Multiple Sclerosis No. 101 of 2011
CASES
Repatriation Commission v Tuite (1993) 29 ALD 609
Roncevich v Repatriation Commission [2005] HAC 40
Hartas and Repatriation Commission [2009] AATA 180
REASONS FOR DECISION
Senior Member J F Toohey
22 April 2016
BACKGROUND
Mr Stephen Smith enlisted in the Australian Army in February 1978, when he was 21, and served until October 2001. His service is eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
Mr Smith has a number of disabilities which have been accepted as related to his service. The issue in these proceedings is whether his multiple sclerosis, which was diagnosed in about September 2000, in related to his service. In making that determination, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).
In applying s 120(4), the Tribunal is to be reasonably satisfied that Mr Smith’s multiple sclerosis was defence-caused only if the material before it raises a connection between his disease and his service, and; there is in force a relevant Statement of Principles (SOP) that upholds the contention that his condition is, on the balance of probabilities, connected with his service: s 120B(3).
THE STATEMENT OF PRINCIPLES
The relevant SOP in Mr Smith’s case is No. 101 of 2011. It provides that at least one of the factors set out in clause 6 of the SOP must be related to his defence service: cl 5. Mr Smith relies on factor 6(b):
smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of multiple sclerosis, and where smoking has ceased, the clinical onset of multiple sclerosis has occurred within five years of cessation…
A “pack-year of cigarettes or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack-year of cigarettes equals 20 tailor-made cigarettes per day for a period of one calendar year, or 7300 cigarettes: cl 9
MR SMITH’S EVIDENCE
Giving evidence before the Tribunal, Mr Smith had considerable difficulty recalling how many cigarettes he smoked at different times, from before he enlisted in 1978, and over the years up until 1996 when he gave up smoking on his 40th birthday. It is possible that matters became confused by questions about how many packets of cigarettes he smoked at different times as opposed to the number of cigarettes, in particular because the number of cigarettes per packet has increased over time, but even allowing for that, his evidence was not clear.
I have no doubt that Mr Smith gave his evidence truthfully and did his best, but his recollection was plainly not reliable. As a result, I have had to give greater weight to contemporary records, than I have to Mr Smith’s evidence.
Before enlisting
Mr Smith left school after Year 10 and undertook a four-year apprenticeship in printing, after which he worked for two years. He gave evidence that he smoked his first cigarette in about the third year of his apprenticeship; he would have one or two a week and never bought his own. After a time, he started buying his own but he could not smoke at home because his parents would disapprove, in particular because his father was asthmatic. Mr Smith gave evidence that a packet of cigarettes would last him two to three weeks during this period.
In a statutory declaration sworn on 17 July 2014, Douglas John Ferris stated he attended primary and high school with Mr Smith, they were neighbours and attended social and sporting events before he joined the Army. Mr Ferris stated that, to the best of his recollection, he never saw Mr Smith smoke a cigarette at any time before he joined the army. Although Mr Ferris did not give oral evidence before the Tribunal, I have no reason to doubt that he says. However, his statement is of limited assistance, especially given that Mr Smith acknowledges that he did smoke before enlisting.
After enlisting
Mr Smith gave evidence that his smoking increased once he was in the army. At first, he found the pressure of army life difficult and, during his first year, would buy a packet of cigarettes approximately every week. He says that he and others were encouraged to smoke, for example, whenever they finished a lesson they were told to “fall outside and have a cigarette”. He felt peer group pressure and wanted to be like others.
The evidence about how much Mr Smith smoked at various times was inconsistent in a number of respects, and his evidence was at odds with contemporaneous records.
According to an Entry Medical History Questionnaire completed on 21 March 1977 for the purposes of enlisting, Mr Smith smoked “20/day”. According to another questionnaire on 13 December 1977, he smoked “a packet a day”. Mr Smith told the Veterans Review Board (the Board) and the Tribunal that he did not smoke that much at that time, that he simply told the doctors what he heard everyone else saying. I accept that he may have overstated his smoking at that time but, if so, it only underlines how little certainty there can be about Mr Smith’s smoking habit at different times.
In a Claimant Report – Smoking completed on 24 January 2013, Mr Smith indicated that he started smoking on a regular basis in 1978 when he joined the army. He stated he smoked ten cigarettes per day because of “peer pressure”, and his habit increased to 20 cigarettes a day in 1979.
According to a document prepared for the Board by Mr Smith’s then advocate, he smoked ten cigarettes per day in 1977, and 15 cigarettes per day in 1978. The transcript of the hearing before the Board on 16 March 2015 shows that Mr Smith gave evidence that he smoked seven to ten cigarettes per day at that time. Before the Tribunal, Mr Smith said it was not correct to say that he smoked seven to ten cigarettes per day; he would have smoked that amount per week, and he estimated he would buy a packet approximately every week.
Mr Smith gave evidence that his smoking gradually increased over time. When he was in training at Kapooka in 1978, he smoked possibly ten to 12 cigarettes per day; when he was posted to Brisbane around 1970, he was smoking approximately 15 cigarettes per day while on base and ten cigarettes per day while on exercises. Around 1980, when he was posted to Holsworthy, he estimated he was smoking approximately 25 cigarettes every two to three days. Around 1985 he was smoking 25 to 27 cigarettes over approximately four days until, by the early nineteen-nineties, he was smoking up to 25 cigarettes a day, and close to 30 per day when he gave up in 1996.
Mr Smith gave evidence that his smoking increased at times of particular stress. He cited a number of such incidents including: an incident in 1982 when the body of his father-in-law was found, many years after he died in an accident; the birth of his daughter in 1986 when it appeared he would not get back in time for the caesarean delivery; an incident in about 1988 when he was caught up at the airport on his return from Germany while a number of people questioned about a serious assault; the suicide in about 1990 of a young sapper; when he was under threat of demotion after being promoted to Sergeant; and his inability to go on a UN mission to Cambodia for which he had trained hard, for what appeared to be a relatively minor medical reason. Mr Smith gave evidence, and I accept, that his smoking increased with each of these occasions and then would go back to around 18 to19 cigarettes a day. He also said that he would smoke more at home when he was relaxing with his wife.
Mrs Smith’s evidence
Mr Smith’s wife, Narelle Smith, gave evidence before the Tribunal. She said his smoking increased over the years, although she also had difficulty estimating how much he smoked at any one time. She confirmed that it increased around the incidents he referred to, when she said it would “spike” and then plateau again.
Other Army records
Army records suggest that Mr Smith was smoking 20 cigarettes per day from at least 1983. A Patient Referral and Report dated the 7 February 1983 shows he “had a cough for the past four months” and it was recommended that he “stop smoking”. A similar Report dated 22 March 1983 shows he was seen for “small airways disease most likely related to smoking” and he should “stop smoking (still 20 per day)”. On 20 September 1983, he was “still smoking and has been strongly advised to stop”. On 6 December 1983 he was “still smoking 2 (sic) cigarettes daily”. (In the context of the other reports, it appears clear this should have read “20 cigarettes daily”).
An undated document, which appears to have been produced between September 1989 and January 1992, shows Mr Smith’s smoking habit as “20 cigarettes per day”. A Patient Referral and Report on 18 February 1992 shows “Smokes 20/day”. A Patient Assessment on 5 December 1994 showed that he smoked 25 cigarettes per day.
I accept that Mr Smith did not smoke a packet of cigarettes a day before enlisting. I accept his evidence that he smoked seven to ten cigarettes per week around the time he enlisted. I am satisfied that his smoking increased over time, although at a different rate from what he described in evidence. I find it had increased to approximately 20 cigarettes a day by early 1983 and stayed at that level until around 1991 or 1992. I accept that it increased to around 25 cigarettes per day from that time and was close to 30 per day by the time he gave up.
WAS THE INCREASE IN MR SMITH’S SMOKING RELATED TO HIS SERVICE?
Despite the uncertainty about how much he smoked different times, the respondent does not dispute, and I am satisfied, that Mr Smith smoked to the level required by factor 6(b) in the SOP.
Section 196B(14) of the Act provides that a factor causing, or contributing to, an injury or disease is related to service rendered by a person if it arose out of, or was attributable to, that service or if it was contributed to in a material degree by, or was aggravated by, that service.
In Repatriation Commission v Tuite (1993) 29 ALD 609, the Full Court of the Federal Court dismissed an appeal against a decision of the Administrative Appeals Tribunal which found that the veteran’s defence service had contributed to his smoking, and the connection was not merely temporal. Davies J observed (at 611) that:
… if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service must be a cause as distinct from being part of the circumstances in or on which the cause operates.
It is not always a simple matter to find the line between the merely temporal connection of “the setting”, and circumstances which have the necessarily causal connection to a veteran’s injury or disease.
In Roncevich v Repatriation Commission [2005] HAC 40, the High Court held that a factor be the sole, dominant, direct or proximate cause. The majority said (at 125):
[W]hether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely temporal one.
In Hartas and Repatriation Commission [2009] AATA 180, the Administrative Appeals Tribunal said (at 20):
In seeking to find a causal nexus between Mr Hartas’ eligible service and smoking, considerable care must be exercised in circumstances where the applicant commenced smoking during service, but not in a theatre of war: Repatriation Commission v Edwards [1993] AATA 101; (1993) 31 ALD 174. We consider the same care needs to be exercised when considering any causal connection between an applicant’s service and an increase in smoking.
The question in this case is the same as in Hartas, namely, whether Mr Smith’s service was a contributing cause and not merely the setting in which his smoking increased. The Tribunal in Hartas identified the question (at [23]) as being whether Mr Hartas “was expected to smoke as he did, when clearly his duties per se did not oblige him to smoke”.
I accept that Mr Smith found it difficult at first to adjust to army life. I accept that, when his instructors said at the end of a lesson that trainees should “fall outside and have a smoke”, that was what many of them did. However, his evidence was that, while he felt obliged to smoke, some others did not. In these circumstances, I am not persuaded that his service contributed in a material way to his increase in smoking, rather than being the setting in which it occurred. I accept that his smoking increased at times of particular stress but those times were equally service-related and not service-related, and his evidence was that after the various incidents, his smoking would fall back to more or less where it had been before.
On the information before me, I accept that, over the period from the early 1980s to 1996, Mr Smith’s smoking increased from around 20 cigarettes per day to 25 to 30 cigarettes per day but I am not satisfied that his service made a material contribution to this increase. Rather, I find, as the Board found, that it appeared to be a normal progression of his “smoking habit”.
CONCLUSION
For these reasons, I affirm the decision under review.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey .............................[sgd]...........................................
Associate
Dated 22 April 2016
Date(s) of hearing 12 April 2016 Counsel for the Applicant Mr G Barter Solicitors for the Applicant Mr G Isolani, KCI Lawyers Solicitors for the Respondent Mr N Bunn, Repatriation Commission
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Procedural Fairness
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Statutory Construction
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