Stevens and Repatriation Commission
[2001] AATA 109
•9 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 109
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/835
VETERANS' APPEALS DIVISION )
Re RAYMOND WALTER STEVENS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr P Lynch, Member
Date9 January 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/835
)
VETERANS' APPEALS DIVISION )
Re: RAYMOND WALTER STEVENS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr P Lynch Member
Date 9 January 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Were cataracts both eyes caused or contributed to by war-caused smoking habit? Compliance with SoP. Literal compliance not necessary. Doubt as to when smoking ceased.
Veterans' Entitlements Act 1986 – s120
Repatriation Commission v Smith 15 FCR 327
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Tuite 17 AAR 158
REASONS FOR DECISION
Senior Member M D Allen
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 through his Solicitors and pursuant to subsection 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 Applicant and to the Respondent 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: Kwai-Ling Wong
..................................................................................……………………………….Associate
Date of Hearing 9 January 2001
Date of Decision 9 January 2001
Counsel for Applicant Mr W RoperSolicitor for Applicant Mr J Lambeth, Cutler Hughes & Harris
Advocate for Respondent Ms P Hook, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/835
By Mr D. Allen, Senior Member, DR P. LYNCH, Member
RAYMOND WALTER STEVENS and REPATRIATION COMMISSION
SYDNEY, TUESDAY, 9 JANUARY 2001MR ALLEN: In this matter the applicant pursuant to an application lodged with the Tribunal on 1 June 2000 seeks review of a decision by a delegate of the respondent made 27 November 1998 and affirmed by a Veterans' Review Board on 22 March 2000 rejecting his claim to have the condition of acquired cataracts in both eyes attributed to his war service. At the outset it can be stated that there is no question as to the applicant having cataracts in both of his eyes, in this regard we refer to the unchallenged report of Dr Whitehouse, ophthalmologist, dated 21 November 2000 which became exhibit A3.
The applicant served in the Royal Australian Air Force from 4 June 1942 to 31 January 1946 and this is eligible war service under the Veterans' Entitlements Act 1986, as amended. The applicant however, did not serve outside Australia nor did he come in contact with the enemy, such as to give him the status of having rendered operational service. The standard of proof therefore in this matter is that provided by subsection (4) of section 120 of the Veterans' Entitlements Act namely, that of to the Tribunal's reasonable satisfaction.
The term reasonable satisfaction was equated by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327 to the civil standard of proof, namely, that on the balance of probabilities. Subsection (4) of section 120 is also affected by section 120B of the Veterans' Entitlements Act which provides inter alia that in applying subsection (4) of section 120 to determine a claim the Commission and hence, this Tribunal is to be reasonably satisfied that a disease contracted by a person was war-caused only if (a) the material raises a connection between the disease and the particular service rendered by the person and there is in force a Statement of Principles that upholds the contention that the disease is on the balance of probabilities connected with that service.
I note in passing that the Veterans' Review Board had regard to the wrong section of the Veterans' Entitlements Act and started to talk about reasonable hypotheses which, of course, do not apply in this case. The particular Statement of Principles in this matter is Instrument 147 of 1996, as was pointed out by the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532 as that was the Statement of Principles applicable when the applicant
sterepj 9.1.01 P-1
©Auscript Pty Ltd 2001made his claim, that is the Statement of Principles which must be applied here.
The relevant paragraph of the said Statement of Principles refers to acquired cataract in the case of smoking at least 20 cigarettes per day for at least 40 years before the clinical onset of acquired cataract. There is also a factor of UV damage but the applicant through his counsel did not address any arguments on that and it seems that on the figures, as contained in exhibit R4 the requirements of the SoP would not be met.
The applicant's claim in this matter is really of very short compass, he states that because of the exigencies of his war service he acquired a smoking habit and that habit was such as to comply with factor 5(a), namely, smoking at least 20 cigarettes a day for at least 40 years by the clinical onset of acquired cataracts. It would appear that the clinical onset could be dated to 1996 when as Dr Whitehouse said, the applicant first attended his surgery.
So far as the first matter of the applicant's case is concerned, namely, that the smoking habit was war-caused, we refer first of all, to exhibit A2 which is his statement, in that he says inter alia:
I left school at fourteen years of age after passing my qualifying certificate (QC).
I then worked in my parents orchard until I enlisted in the RAAF, at the age of eighteen years old. I had never smoked tobacco before my war service, and neither of my parents had ever smoked.
I continued working with my parents until I enlisted in the RAAF. Upon enlistment I underwent an aptitude test and was found suitable as a trainee group 5. This was a basic engineering course that was new to me. The course was done five days a week over about eight weeks.
I began smoking cigarettes during this course, which I consider was the first cause of my smoking. Because of my lack of higher education I found the theory element of the course very difficult, although I passed an exam for a flight riggers course (air frame), which was held in Melbourne. My difficulty in performing the theoretical element of the course placed me under considerable stress. I found that smoking, as many of my fellow airman did, helped to ease that stress, and made it easier to relax.
He then speaks as to how he was posted to Cootamundra as an airframe rigger and apart from the general nature of his duties, he found himself under stress for several reasons, one of which was that after an overhaul
sterepj 9.1.01 P-2
©Auscript Pty Ltd 2001of an aircraft he had to sign off on the work done on the aircraft. If anything had then gone wrong with that aircraft which is attributable to the section upon which he had worked, he would be held responsible and if so, would have had disciplinary action taken against him.
He states also that after major overhauls he was expected to go on a test flight which he found very stressful. The responsibility of his work placed him under stress which contributed to an increase in his smoking habit. There are also other occasions, for example, of another airman who walked into a propeller on the flight line and was killed and also, an occasion where he and others were responsible for cleaning up a site after an airman's parachute had failed to open, this of course, is understandable that incidents such as this would be distressing, particularly to a relatively young man.
As he says, when things like this happened we were told to have a smoke as it would calm you down. All of this is understandable. In short, what we have is a young man age 18 who enlists in the Air Force and is away from home for the first time. He is under, of course the normal peer group pressure, his evidence is that around him most of other people were smoking and he was under particular stresses, including the stress of a course.
The matter was referred to in Repatriation Commission v Tuite 17 AAR 158, in particular from the joint judgment of Burchett and Einfeld JJ. At page 163 their Honours said:
The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was 'something within the applicant's military service which has caused him to start smoke'. It accepted his evidence that he had not smoked before, 'and that it was the circumstances which he was in camp that caused him to start to smoke. The Tribunal added: 'Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military.' The Tribunal pointed out that the respondent 'was in a milieu totally different to that which he had experienced before his call-up'. …
We are unable to find anything suggestive of error in this reasoning.
To us that makes it clear that in this case where similar principles apply, it is easy for this Tribunal to be reasonably satisfied that the applicant's smoking habit was caused by his war service. That however, is not the end of the matter as he must now fulfil the requirements of the Statement of Principles. So far as the actual factor, namely 5(a) is concerned, it was submitted by the respondent that the requirement must be read literally.
sterepj 9.1.01 P-3
©Auscript Pty Ltd 2001
If this were so, then in this case the applicant could not possibly succeed, indeed, it would be difficult to see how any veteran could succeed.We have doubts as to whether the factor being, of course, a subset of beneficial legislation can be read in its literal form. As an example, in this case the applicant was cross-examined about a period in which he spent in hospital when he had a tonsillectomy. It can be assumed that for some days at least, either prior and certainly following that operation he would not have smoked. Taking the factor and its wording literally, it would be clear that he did not smoke at least 20 cigarettes a day for at least 40 years because of the time he was hospitalised. As was stated, we have doubts that it is to be so read.
The difficulty is however, that the applicant has given contradictory reports as to when he ceased smoking. The first document lodged by him was a smoking questionnaire which is exhibit T4 in these proceedings. He there states that he started to smoke during his first technical course which, of course, was in 1942 and says that he ceased about 1978. Later in an application to the Veterans' Review Board he states:
As can be seen by my smoking questionaire (sic) I stated that I gave up smoking in ABOUT 1978, This in fact could vary a few 3 or 4 years as I do not correctly remember.
As can be seen by the answers of about and maybe more indicates that I wasn't sure, However I do know I gave up smoking prior to finishing work in 1984.
Exhibit R4 is a solar damage assessment, part of which was completed by the applicant. He stated there that from 1957 to 1978 he lived at Bankstown and was self-employed. From 1978 to date he lived at Foster and was retired which would seem to indicate that he ceased work at or about 1978. In evidence before the Tribunal today he said that he received what was then termed an Invalid Pension at the end of 1983 and prior to that, some 12 months, he had been on sickness benefits.
He said that he had been in Forster since 1978 and said that he ceased work when he bot the Disability Pension but, of course, if he was on Sickness Benefits before that it would mean that he was also not employed. He said that in 1982/83 he stopped being employed, he was doing a bit of building for himself.
Now, the applicant in this is all very vague. We accept that he is a man of limited education and that no doubt his recall of events is not good. In evidence today he states that he ceased smoking in 1983 as he was going on a trip with his wife and his wife complained and told him she would not put up with smoke in the caravan, also, he had been warned by his doctor that he should cease.
sterepj 9.1.01 P-4
©Auscript Pty Ltd 2001In all of this we find it difficult to ascertain just when the applicant ceased his smoking, certainly if he puts it, as he did to the Veterans' Review Board as the time when he ceased work, that would seem to be in or about 1983. There is then the very definite statement in his smoking questionnaire which is dated 2 May 1997 that he ceased in or about 1978. Again, this has a degree of corroboration as that is when he moved to Foster and as he said in exhibit R4 was retired.
All in all, we find that although we have doubts as to the literal application of factor 5(a) of the Statement of Principles, in this matter we are simply not reasonably satisfied as to when the applicant ceased smoking, indeed, we are more inclined to have regard to the date 1978 as the first date nominated by the applicant before these proceedings were under way. As we are not reasonably satisfied as to the date he ceased smoking, we cannot be satisfied that he has equated to smoking at least 20 cigarettes a day for a least 40 years before the clinical onset and for those reasons the decision under review is affirmed.
sterepj 9.1.01 P-5
©Auscript Pty Ltd 2001
0
0
0