Smith v Repatriation Commission

Case [1999] FCA 1484

FEDERAL COURT OF AUSTRALIA

Smith v Repatriation Commission [1999] FCA 1484

DEFENCE FORCES – veterans’ entitlements - appeal from Administrative Appeals Tribunal – pensions, allowances and other benefits – widow’s claim – whether smoking-related death – whether reasonable hypothesis that veteran’s commencement of smoking attributable to eligible war service – young soldier commencing smoking in camp – whether peer group pressure – whether every element of hypothesis required to be proved by evidence

Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c)
Veterans’ Entitlement Act 1986 (Cth) s 120(3)

Critch v Repatriation Commission 43 ALR 574 applied
Repatriation Commission v Tuite 29 ALR 609 applied
Repatriation Commission v Bey (1997) 149 ALR 721 mentioned
East v Repatriation Commission (1987) 16 FCR 517 mentioned
Repatriation Commission v Stares (1996) 66 FCR 594 applied
Gilbert v Repatriation Commission (1989) 86 ALR 713 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Lowerson v Repatriation Commission (1994) 50 FCR 252 at 269 applied
Critch v Repatriation Commission (1996) 43 ALD 574 followed
Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119 applied

SHIRLEY KNOLLYS SMITH v REPATRIATION COMMISSION
NO. T13 of 1999

HEEREY J

28 OCTOBER 1999
MELBOURNE (HEARD IN HOBART)


IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

T13 OF 1999

BETWEEN:

SHIRLEY KNOLLYS SMITH
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

28 OCTOBER 1999

WHERE MADE:

MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The decision of the Administrative Appeals Tribunal dated 4 June 1999 is set aside.

3.The matter is remitted to the Tribunal for further hearing and determination according to law.

4.The respondent pay the applicant’s costs of the appeal, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

T13 OF 1999

BETWEEN:

SHIRLEY KNOLLYS SMITH
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

HEEREY J

DATE:

28 OCTOBER 1999

PLACE:

MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

  1. The applicant is the widow of Clifford Arthur Smith (the veteran) who died on 11 March 1989.  Mrs Smith appeals from a decision of the Administrative Appeals Tribunal affirming a decision of the Veterans’ Review Board which in turn affirmed the decision of the Repatriation Commission that the death of the veteran was not war-caused within the meaning of s 8 of the Veterans’ Entitlement Act 1986 (Cth) (the Act).

  2. The veteran enlisted in the Australian Army during World War II and served in the Northern Territory.  The Tribunal found that his service was operational service.

  3. The immediate cause of death was massive pulmonary embolus which was the direct result of a hernia operation undertaken in February 1989.  There was evidence that the hernia was a consequence of the veteran’s smoking which had given him a persistent cough, thereby leading to increased intra-abdominal pressure.  The hypothesis sought to be raised for the purposes of s 120(3)…

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Details
AGLC
Smith v Repatriation Commission [1999] FCA 1484
Case
[1999] FCA 1484
Decision Date

CaseChat Overview and Summary

The case of Smith v Repatriation Commission involved a dispute regarding the connection between a veteran's smoking habit and his service, and whether this habit contributed to his death. The Administrative Appeals Tribunal (AAT) had previously dismissed an appeal brought by Mrs Smith, who sought compensation for her late husband's death, which was contributed to by smoking. The legal issue before the court was whether the AAT was correct in finding that there was insufficient evidence to establish a causal connection between the veteran's smoking and his service, which would allow for a reasonable hypothesis that his death was war-caused. The court had to consider whether the mere fact that the veteran commenced smoking during his service was sufficient to raise such a hypothesis, or if there needed to be additional evidence to establish a connection between the smoking and the service.

The court examined previous cases and noted that while the mere fact of a veteran starting to smoke during service does not automatically establish a causal connection, there must still be some material presented to the Tribunal to establish such a connection. The court emphasised that the connection between the smoking habit and war service must be raised by the material presented to the tribunal, but proof as to the precise manner in which the veteran commenced and continued to smoke is not required. The court found that in this case, the only evidence presented in relation to the deceased's smoking was that from the applicant, who was unable to verify when he actually commenced smoking. There was no evidence connecting the deceased's smoking with his service life, such as stress, peer pressure, or other influencing factors. The court concluded that the applicant had been unable to establish a reasonable hypothesis as required under s.120(3) of the Act, and therefore dismissed the appeal.

The court ordered that the appeal be allowed, the decision of the AAT dated 4 June 1999 be set aside, and the matter be remitted to the Tribunal for further hearing and determination according to law. The respondent was ordered to pay the applicant's costs of the appeal, including reserved costs.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Administrative Appeals Tribunal dated 4 June 1999 is set aside.

3. The matter is remitted to the Tribunal for further hearing and determination according to law.

4. The respondent pay the applicant’s costs of the appeal, including reserved costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal continued (emphasis added):“16. The cases to which the Tribunal has been referred suggest that there must be some evidence presented to connect the veteran’s smoking with his service, and that the mere fact of his commencing smoking during service is not sufficient to raise a reasonable hypothesis that the death contributed to by smoking was war-caused. That was the view taken by the Tribunal and supported by Einfeld J in Cooke v Repatriation Commission 45 ALD 205. Although His Honour stated that proof as to the precise manner in which the veteran commenced and continued to smoke is not required, there must be some material presented to the Tribunal to establish a connection between the veteran’s smoking habit and his war service, and said at pp. 217-218:‘The appellant contended, contrary to the tribunal’s view, that the mere fact that a veteran’s smoking habit commenced or resumed during war service is sufficient to raise a reasonable hypothesis that an injury contributed to by smoking was war-caused. Reliance was placed on the reasons of Davies J, when President of the tribunal, in Repatriation Commission v Hughes (1990) 13 AAR 34 in which his Honour stated at 38.‘… if a serviceman commences smoking during war service, then a hypothesis will readily arise that the development of the smoking habit was causally related to the war service. The connection will be pointed to by the facts of the particular serviceman’s case. Proof as to precisely how and in which circumstances smoking commenced and was continued is not required. A reasonable hypothesis is sufficient.’That opinion is not authority that the mere fact that a veteran commences smoking during war service is enough to establish a causal relationship between the smoking habit and the war service. His Honour said in fact that any connection will be pointed to by the facts of the particular veteran’s case. That is, the connection between the commencement of a veteran’s smoking habit and war service must be raised by the material presented to the tribunal. However, proof as to the precise manner in which the veteran commenced and continued to smoke is not required before a hypothesis based on that connection can be said to be raised.’17. In the present case the Tribunal finds that there is not sufficient material before the Tribunal to establish such a connection. The only evidence presented in relation to the deceased’s smoking was that from the applicant who was unable to verify when he actually commenced smoking. The only concrete evidence that the Tribunal has in relation to this fact is that the deceased was smoking when the applicant met him, and that he was in the Army at that time. Although the applicant was adamant that the deceased had not smoked before he joined the Army, she was unable to provide any material evidence as to the reasons why he commenced smoking. The Tribunal is thus left with no evidence connecting the deceased’s smoking with his service life. The applicant’s evidence in many respects was somewhat vague, for instance she was unable to recall the date of her marriage. The Tribunal accepts that the passage of time would have somewhat diminished her recollection, but nevertheless her evidence in relation to the cause of her deceased husband’s smoking is deficient. The applicant was able to give very little evidence in relation to the deceased service life as she said he spoke very little about it, and was only able to comment about the long marches that he was required to undertake. There was no evidence about stress, peer pressure, or other influencing factors that may have caused him to take up smoking as was the situation in the other cases to which the Tribunal was referred in relation to this issue.18. The Tribunal having found that there was insufficient evidence to connect the deceased’s smoking with his war service, the applicant has therefore been unable to establish a reasonable hypothesis as required under s.120(3) of the Act. The Tribunal accordingly must dismiss the appeal.”Conclusion on the appeal

Decision

Reasons for decision

Counsel for Mrs Smith submitted to the Tribunal that the veteran’s “smoking habit commenced on and due to service.” He said that the Tribunal could:“… easily come to the conclusion that the person who joins an army – joins the army or whatever branch of the service, being exposed to a different environment, a different discipline, a different way of life, surrounded by people all of whom or many of whom smoke, it can be readily inferred that it was peer pressure …”Tribunal decision The Tribunal referred to the decisions of Critch v Repatriation Commission (1996) 43 ALD 574 (Merkel J) and Repatriation Commission v Tuite 29 ALD 609 (Full Court). The latter case also involved the question of a causal connection between a veteran’s smoking and his service. The Tribunal said:“The issue for the Full Court to decide was whether there was sufficient material before the Tribunal to draw the conclusion that the veteran’s service contributed causally to the injury or disease. In that case there was evidence given by the applicant in relation to the circumstances at camp that caused him to start smoking, e.g. the fact that cigarettes were cheap, and other people were smoking, a certain degree of apprehension regarding his future in the military and general boredom of camp life. At page 614 Burchett and Einfeld JJ stated:-‘It is true that not everything which occurs while a man is in camp is attributable to his war-service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. It was open to the Tribunal to find the circumstances persuasive.” The Tribunal continued (emphasis added):“16. The cases to which the Tribunal has been referred suggest that there must be some evidence presented to connect the veteran’s smoking with his service, and that the mere fact of his commencing smoking during service is not sufficient to raise a reasonable hypothesis that the death contributed to by smoking was war-caused. That was the view taken by the Tribunal and supported by Einfeld J in Cooke v Repatriation Commission 45 ALD 205. Although His Honour stated that proof as to the precise manner in which the veteran commenced and continued to smoke is not required, there must be some material presented to the Tribunal to establish a connection between the veteran’s smoking habit and his war service, and said at pp. 217-218:‘The appellant contended, contrary to the tribunal’s view, that the mere fact that a veteran’s smoking habit commenced or resumed during war service is sufficient to raise a reasonable hypothesis that an injury contributed to by smoking was war-caused. Reliance was placed on the reasons of Davies J, when President of the tribunal, in Repatriation Commission v Hughes (1990) 13 AAR 34 in which his Honour stated at 38.‘… if a serviceman commences smoking during war service, then a hypothesis will readily arise that the development of the smoking habit was causally related to the war service. The connection will be pointed to by the facts of the particular serviceman’s case. Proof as to precisely how and in which circumstances smoking commenced and was continued is not required. A reasonable hypothesis is sufficient.’That opinion is not authority that the mere fact that a veteran commences smoking during war service is enough to establish a causal relationship between the smoking habit and the war service. His Honour said in fact that any connection will be pointed to by the facts of the particular veteran’s case. That is, the connection between the commencement of a veteran’s smoking habit and war service must be raised by the material presented to the tribunal. However, proof as to the precise manner in which the veteran commenced and continued to smoke is not required before a hypothesis based on that connection can be said to be raised.’17. In the present case the Tribunal finds that there is not sufficient material before the Tribunal to establish such a connection. The only evidence presented in relation to the deceased’s smoking was that from the applicant who was unable to verify when he actually commenced smoking. The only concrete evidence that the Tribunal has in relation to this fact is that the deceased was smoking when the applicant met him, and that he was in the Army at that time. Although the applicant was adamant that the deceased had not smoked before he joined the Army, she was unable to provide any material evidence as to the reasons why he commenced smoking. The Tribunal is thus left with no evidence connecting the deceased’s smoking with his service life. The applicant’s evidence in many respects was somewhat vague, for instance she was unable to recall the date of her marriage. The Tribunal accepts that the passage of time would have somewhat diminished her recollection, but nevertheless her evidence in relation to the cause of her deceased husband’s smoking is deficient. The applicant was able to give very little evidence in relation to the deceased service life as she said he spoke very little about it, and was only able to comment about the long marches that he was required to undertake. There was no evidence about stress, peer pressure, or other influencing factors that may have caused him to take up smoking as was the situation in the other cases to which the Tribunal was referred in relation to this issue.18. The Tribunal having found that there was insufficient evidence to connect the deceased’s smoking with his war service, the applicant has therefore been unable to establish a reasonable hypothesis as required under s.120(3) of the Act. The Tribunal accordingly must dismiss the appeal.”Conclusion on the appeal

Ratio Decidendi

Legal Principle Established

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