Stuart and Repatriation Commission (Veterans' entitlements)
[2018] AATA 694
•29 March 2018
Stuart and Repatriation Commission (Veterans' entitlements) [2018] AATA 694 (29 March 2018)
Division:Veterans' Appeals Division
File Number(s): 2016/1983
Re:Shirley Stuart
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:29 March 2018
Place:Brisbane
I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement Act 1986, the date of effect of this decision is 20 December 2014.
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Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veteran deceased – cause of death lung cancer – claim for pension by widow – standard of proof ss 120(1), 120(3) and 120A of the Act – relevant Statement of Principles – whether operational service rendered – whether death related to operational service – whether there is a reasonable hypothesis supported by the relevant SoP – Deledio steps – factors of the SoP are satisfied – reasonable hypothesis raised connecting the death of veteran with his service – decision under review set aside and substituted – applicant entitled to widow’s pension.
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Repatriation Commission and Kohn (1989) 87 ALR 511
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Bawden (2012) 206 FCR 296
Forrester v Repatriation Commission [2013] FCA 898
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Repatriation Commission v Stares (1996) 66 FCR 594
Byrnes v Repatriation Commission (1993) 177 CLR 564.
Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v McKenna (1992) 175 CLR 408
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1980) 147 CLR 635
Collins v Repatriation Commission (2009) 177 FCR 280
Knight v Repatriation Commission (2010) 52 AAR 547
Re Keenan and Repatriation Commission (1990) 21 ALD 289
Re Everett and Repatriation Commission (1991) 23 ALD 529
Repatriation Commission v Tuite [1993] FCA 39; (1993) 39 FCR 540
Cooke v Repatriation Commission (1997) 45 ALD 205SECONDARY MATERIALS
Statement of Principles (SoP) concerning malignant neoplasm of the lung (Instrument No.92 of 2014)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
29 March 2018
INTRODUCTION
The applicant in this matter is Mrs Shirley Stuart. She is the wife of the late veteran Mr William Gordon Stuart, who passed away on 23 August 1977 at the age of 81 years. Mr Stuart was not in receipt of a pension prior to his death.
The applicant submitted a claim to the Department of Veterans’ Affairs (“DVA”) for the payment of war widows’ pension on the basis that the death of her husband was related to his service. On 28 April 2015, the respondent decided that the death of Mr Stuart was not related to service, and therefore a war widows’ pension was not payable.
On 3 June 2015, the applicant applied to the Veteran’s Review Board (“VRB”) for review of the respondent’s decision, and on 21 March 2016 the VRB issued a decision affirming the respondent’s original decision.
On 14 April 2016 the applicant applied to this Tribunal for review.
HISTORY
The applicant states in her original application, and the VRB decision notes, that the veteran was born on 30 April 1896,[1] however the veteran’s service records indicate that the date of birth, as provided by the veteran on a record of his service, is 1 May 1898.[2]
[1] Exhibit A, T-documents, T2 at p. B3
[2] Exhibit A, T-documents, T3 at pp. B10 and B16
The veteran served in the Royal Australian Air Force (“the RAAF”) from 17 June 1940 till his commission expired on 29 October 1945. The veteran was based onshore in Australia and was on temporary duty outside mainland Australia between 21 July 1945 and 23 July 1945 when he was detached to Merauke.[3]
[3] Ibid at p. B21
Prior to commencing his service with the RAAF, the veteran had undertaken a significant military career, having served with the British West Indies Regiment and the Royal Marines in World War I, and having been captured by the German army at the battle of Passchendaele in 1917.[4]
[4] Exhibit A, T-documents, T2 at p. B8
The applicant and the veteran were married on 9 October 1956.[5]
[5] Exhibit A, T-documents, T9 at p. 8
LEGISLATIVE FRAMEWORK
Section 6A of the Veterans’ Entitlements Act 1986 (“the Act”) provides the requirements for operational service. A person is taken to have rendered operational service if that person was a member of the Defence Force and performed continuous full-time service outside Australia during a war to which this Act applies: section 6A(1), Item 1(a) of the Act. Similarly, a person is taken to have rendered operational service where that person performed continuous full-time service during a war to which the Act applies rendered within Australia immediately before, or immediately after, a period of continuous full-time service of the kind referred to in Item 1(a): section 6A(1), Item 1(c) of the Act.
Section 5B of the Act defines World War II as a war to which the Act applies, specifying that, for the purposes of the Act, World War II is taken to have commenced on 3 September 1939 and to have ended on 28 April 1952.
Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.
Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1)(c) of the Act provides that the term “dependant” is defined to include a “widow”.
Section 5E(1) of the Act defines a “war widow” to include a woman who was legally married to a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran.
The determination of whether the veteran’s death was war-caused is to be made by applying the standard of proof outlined in subsections 120(1), 120(3) and 120A of the Act. Subsection 120(1) of the Act provides that where a claim for a pension:
(i)…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.
Subsection 120(3) of the Act also provides:
(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.
Section 120A sets out how a hypothesis must be assessed:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran…
(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) …
Statement Of Principles
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”), which is an independent medical body that issues Statements of Principles (“SoPs”) based on sound medical-scientific evidence. The SoP sets out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.
Section 196B(2) of the Act provides that if the RMA:
… is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
A SoP is binding on the respondent and various review bodies, including this Tribunal.
SERVICE
Section 6A of the Act provides the requirements for operational service. The veteran served in the RAAF throughout World War II onshore in Australia from 17 June 1940 to 29 October 1945, and was on temporary duty outside Australia between 21 July 1945 and 23 July 1945. It is necessary to determine at the outset whether the veteran’s brief duty outside of Australia can be termed operational service within the meaning of section 6A(1) Item 1(a) the Act, for the purpose of establishing the correct standard of proof. There is a document in evidence from the Department of Defence[6] that states that the veteran did not serve outside mainland Australia. The operation of sections 6A(1) and 5B(3) of the Act converts continuous full-time service by a veteran within Australia, immediately before or after the period of service outside of Australia, into operational service.
[6] Exhibit A, T-documents, T4 at p. 1
As outlined by the VRB in its decision, the term “outside of Australia” is not defined in the Act however there are a number of matters which can be taken in determining whether a brief period of time offshore can and should be deemed “outside of Australia” for the purposes of determining the extent of a person’s operational service. A number of Federal Court decisions are relevant here. In Repatriation Commission and Kohn (1989) 87 ALR 511 (“Kohn”), Hill J held that the Tribunal is required to determine the “essential character” of an applicant’s service (at 513). In Kohn it was decided that the applicant, who travelled from one place in Australia to another place in Australia and was in the course of that travel briefly outside of Australian territory, had not rendered operational service. Hill J reasoned at 525:
“Service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and then return during the war, would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character.
So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purposes of the legislation because it will then, having regard to the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman’s service by reference to it.
However, where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia.”
The reasoning of Hill J in Kohn places an emphasis on determining the purpose of a mission and journey, in order to characterise the service of the person engaged in that mission. The veteran was formally detached to Merauke in Indonesian waters between 21 July 1945 and 23 July 1945. The purpose of his detachment was to perform specific inspection duties, outside of Australia, during the course of the war. The essential character of this service is quite clearly operational in nature; it could not be classified as a brief time outside of Australia in transit between places in Australia or solely as a mission to facilitate the performance of continuous full time service within Australia, but rather was a specific task performed in an offshore area for a period of two days.
I find that the veteran’s service over the two days in 1945 is properly characterised as service outside of Australia and on that basis that the veteran’s service from 17 June 1940 to 29 October 1945 constitutes eligible war service in the form of operational service within the meaning of the Act.[7]
[7] Sections 6A(1) Items 1(a) and 1(c), section 5B(3) and 7 of the Act
EVIDENCE
The death certificate of the veteran states the cause of death was bronchopneumonia and bronchogenic carcinoma.[8] The length of the illness of bronchogenic carcinoma is listed as two years before the veteran’s death on 23 August 1977. There is no other medical documentation in evidence.
[8] Exhibit A, T-documents, T6 at p. 1B
There is a lack of first hand evidence of the veteran’s smoking habits, and when they were formed.
The applicant indicated in a Smoking Questionnaire Form completed on 23 January 2015 that the veteran had commenced smoking on a regular basis in 1940. She further stated that the reason the veteran started smoking was: “the stress of re-enlisting after being in WW1 and the events of the war caused him to start smoking in the RAAF”.[9]
[9] Exhibit A, T-documents, T8 at p. 4
However, in a Claimant Report on cigarette smoking completed by the applicant on 8 January 2001 she indicated in relation to when the veteran commenced smoking: “Date of commencement unknown. He was smoking when I met him in 1952”. The applicant further states in response to why the veteran started to smoke cigarettes: “He said it helped to calm his nerves”.[10]
[10] Exhibit A, T-documents, T7 at p. 2
The applicant’s step-son Mr Peter Stuart submitted a statement dated 16 June 2016 in which he stated:[11]
“… I can state, emphatically, that my father began smoking the strong, unfiltered cigarettes… when they became available part-way through his service in the RAAF. I believe he probably started smoking milder domestic brands before taking up the American brands mentioned when he gained access to the US Air Force PX stores in Ballarat. He continued smoking those brands for more than 12 years until he moved out of my life…
As to whether he smoked before World War II I cannot say with certainty. But I believe, on the balance of probability, that it was unlikely he smoked cigarettes until, perhaps, the early 1940’s.”
[11] Exhibit B, Statement of Mr Peter Stuart dated 16 June 2016 at p. 1
Mr Stuart also said of his father: “He definitely did not smoke during his service in the Royal Marines in World War 1, and his athleticism and financial state during the years between 1925 and 1940 made it unlikely he smoked then”.[12]
[12] Exhibit B, Statement of Mr Peter Stuart dated 16 June 2016 at p. 1
Mr Stuart further cited discussions that he had with the veteran’s first wife and the daughter to his first wife where they failed to mention that the veteran smoked.
SUBMISSIONS
The applicant submitted that a reasonable hypothesis can be established that the veteran’s smoking habits commenced in 1940 during WWII based on the evidence of the applicant and the veteran’s son, Mr Stuart, where they outline that the veteran particularly liked American branded cigarettes and that he did not smoke during WWI.
The applicant submits that the SoP concerning malignant neoplasm of the lung (no. 92 of 2014) supports the hypothesis by way of Clause 6(a) because at a minimum the applicant was smoking at least one half of a pack-year of cigarettes before the clinical onset of the lung cancer, and his smoking commenced at least five years before clinical onset of the lung cancer.
The respondent submitted that a hypothesis cannot be raised as the material does not point to a hypothesis that the applicant commenced smoking in WWII nor that his smoking habit was influenced or increased by his service. The respondent submitted that the evidence of the applicant and her step-son Mr Stuart was not a first-hand account but rather it was based on inferences drawn from the veterans’ physical health during WWI, which the applicant states would have prevented him from taking up smoking; his first wife’s aversion to cigarette smoking, which may have prevented him from smoking; and his financial incapacity, which may have made cigarettes unaffordable for him between 1925 and 1940.
CONSIDERATION
The applicant is eligible for a pension if it can be shown that the veteran’s death was related to his operational service, by way of a reasonable hypothesis supported by the relevant SoP.[13]
[13] See Veteran’s Entitlement Act 1986, section 120A
The Full Court of the Federal Court of Australia in Repatriation Commission v Deledio[14] (“Deledio”) formulated this four-step process:[15]
(i) 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.
(ii) If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a [Statement of Principles (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.
(iii) 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.
(iv) 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 so doing, no question of onus of proof or the application of any presumption will be involved.[16]
[14] (1998) 83 FCR 82 at [82]-[83]
[15] Repatriation Commission v Bawden (2012) 206 FCR 296 at [40]
[16] Deledio at [82]-[83]
In Forrester v Repatriation Commission,[17] Mortimer J observed that in Collins v Administrative Appeals Tribunal,[18] Allsop J (as he then was) pointed out that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.
[17] [2013] FCA 898 at [26]
[18] (2007) 163 FCR 35 at [31]
Step 1 of Deledio
In this first Deledio step I am required to examine the material to ascertain whether the material points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. It has been said that “a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact”.[19]
[19] Repatriation Commission v Stares (1996) 66 FCR 594 at [601]
In Forrester v Repatriation Commission,[20] Mortimer J pointed out that “whether material “points to” or “supports” a hypothesis is, of its nature, a matter which can be determined by inference or assumption”. Her Honour remarked that in Repatriation Commission v Stares[21] (a pre-Deledio case), the Full Court held that “assuming a fact — in that case, that the veteran started his heavy drinking during war service — was permissible at what is now identified as the first stage of the Deledio approach”.
[20] [2013] FCA 898 at [30]
[21] (1996) 66 FCR 594
There is a hypothesis connecting the death of the veteran with the circumstances of the service rendered by him. There is evidence from Mr Peter Stuart who stated that the veteran’s smoking habit during his service in World War One resulted in his heavy smoking habit. He stated that the veteran had been a prisoner of war after the Battle of Passchendaele and feared being captured again. He stated that the veteran smoked because of his stressful service. There is evidence that the veteran served outside Australia in Dutch New Guinea. Mr Stuart referred to the free availability of cheap cigarettes in the American PX which encouraged him to smoke heavily. Mr Stuart remarked that the veteran became addicted to the very strong unfiltered American cigarettes such as Camel, Caballero and Temple Bar. The veteran developed lung cancer which was a cause of his death.
Step 2 of Deledio
I am required to ascertain whether there are in force any Statements of Principles issued by the RMA under ss 196B(2) or (11) of the Act. There is a Statement of Principles concerning Malignant Neoplasm of the Lung (Instrument No. 92 of 2014).
Step 3 of Deledio
In assessing whether a raised hypothesis is “reasonable”, the High Court of Australia in Byrnes v Repatriation Commission,[22] held, at 569,[23] that a reasonable hypothesis is raised when “the material points to some fact or facts (“the raised facts”) which support the hypothesis”. Furthermore, the High Court said, at 571, that in relation to this step:
The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
[22] (1993) 177 CLR 564
[23] Citing Mason CJ and Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at [414]
Since 1 June 1994, in accordance with s 120A(3) of the Act, a decision-maker must refer to the relevant Statement of Principles issued by the RMA to assist in establishing whether an applicant's hypothesis is reasonable for the purposes of the Act. Therefore, this Tribunal must ascertain if it has material before it which fits the template for the relevant Statement of Principles. It has been held that the material must pose a credible proposition, not too remote or improbable; it must be:
... more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities.[24]
[24] East v Repatriation Commission (1987) 16 FCR 517 at [533]
Accordingly, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility.[25] The High Court of Australia held in Bushell v Repatriation Commission[26] that the s 120(3) test will reveal a reasonable hypothesis where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service”.
[25] Gilbert v Repatriation Commission (1989) 86 ALR 713 at [721]; Repatriation Commission v Bey (1997) 79 FCR 364
[26] (1992) 175 CLR 408 at [416]
In Repatriation Commission v McKenna[27] Goldberg J emphasised that “it [was] fundamental to any enquiry under ss 120 and 120A of the Act to identify what is the relevant hypothesis”.
[27] (1998) 52 ALD 72 at [80]
The hypothesis put forward by the applicant is that the veteran used smoking to deal with stress. The applicant referenced the inherent stressful nature of operational service and the significance of the veteran being a prisoner of war during World War One. The veteran served outside Australia in Dutch New Guinea. Mr Stuart mentioned that the veteran feared being a prisoner of war if captured by the Japanese forces. It is certainly reasonable for the service of the veteran to have been stressed.
An important element of the hypothesis that was put forward by the applicant was that there was no evidence that the applicant had smoked during World War One or prior to World War Two. Mr Stuart remarked that the first wife of the veteran hated cigarette smoke which would suggest that the veteran did not smoke after his service with the Royal Marines in World War One. Mr Stuart also remarked that the veteran would not have had the funds to smoke after the failure of his soldier settlement block, which was salt affected.
The applicant, who was in hospital, was unable to give evidence before the Tribunal. However, in her claim form she confirmed that the veteran was smoking when she met him in 1952 and that he smoked more than 20 cigarettes a day.
The Tribunal is required to determine the “kind of death” that is applicable to the veteran. The expression “kind of death” refers to the medical cause or causes of death.[28] It has been held that there may be more than one cause of death.[29] In reliance on the death certificate I find that the cause of death of the veteran is bronchogenic carcinoma.
[28] Repatriation Commission v Hancock [2003] FCA 711 at [8]-[9] per Selway J
[29] Repatriation Commission v Law (1980) 147 CLR 635 at 648; Collins v Repatriation Commission (2009) 177 FCR 280 at [51]
Clause 9 of the SoP contains the following definition:
"death from malignant neoplasm of the lung” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s malignant neoplasm of the lung;
The SoP in cl 4 indicates that the RMA is of the view that there is sound medical-scientific evidence that indicates death from malignant neoplasm of the lung can be related to relevant service rendered by veterans. The veteran’s condition comes within the definition of malignant neoplasm of the lung in cl 3(b) of the SoP, which refers to a primary malignant neoplasm arising from the bronchus or bronchioles.
Clause 5 of the SoP provides, subject to cl 7 (which is not material in this matter), that at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person.
I have to consider whether a reasonable hypothesis has been raised connecting death from bronchogenic carcinoma with the circumstances of the veteran’s relevant service.
Clause 6 of the SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from bronchogenic carcinoma with the circumstances of a person’s relevant service is:
(a) smoking at least one half of a pack-year of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the lung, where smoking commenced at least five years before the clinical onset of malignant neoplasm of the lung;
The death certificate of the applicant records that the duration of the bronchogenic carcinoma condition of the applicant was for 2 years preceding the death of the veteran.[30] The applicant in her claim form confirmed that the veteran was smoking when she met him in 1952 and that he then smoked more than 20 cigarettes a day. The veteran only ceased smoking in 1976 in the year before his death. Brisbane Legacy estimated that the veteran smoked for 36 pack years.
[30] Exhibit A, T-documents, T6
The parties agree that the veteran had smoked the requisite number of cigarettes to satisfy clause 6(a) of the SoP. I respectfully agree with the VRB, which found: “The evidence in relation to the quantity of tobacco consumed by the veteran and the medical evidence in relation to the clinical onset of malignant neoplasm of the lung indicate that the quantitative and temporal requirements of clause 6(a) are met”. The material before me therefore satisfies factor (a) in Clause 6 of the SoP.
There is material that supports the reasonable hypothesis that the smoking habit of the veteran after World War II was caused by his stressful experiences during World War II. On 23 July 1945 the veteran proceeded on temporary duty to Merauke which was in Dutch New Guinea. This was at a time when Japanese forces were stationed in Indonesia prior to the surrender on 2 September 1945. The Statement of Service dated 21 December 2000 from RAAF Records, which purports to be a true and correct Statement of Service, certifies that the veteran did not serve outside the mainland of Australia. There is a deficiency in the Statement of Service which does not refer to the service of the veteran in Merauke. Mr Stuart gives an account that is entirely plausible which indicated that the veteran had a return visit to Merauke: however, no record of that return visit is in evidence.
At this stage of my inquiry I am not required to make any findings of facts as to matters of proof. In Knight v Repatriation Commission[31] Katzmann J explained that “the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis”.[32] In Deledio at 275 Heerey J explained that a claimant does not have to prove all the facts raised by a hypothesis.
[31] (2010) 52 AAR 547 at [35]
[32] [2010] FCA 1134 at [35]
There is a reasonable hypothesis that the death of the veteran is connected with the circumstances of his service. There is material pointing to the veteran being exposed to stress whilst he was on operational service; and having regard to the evidence of Mr Peter Stuart it is reasonable to assume that this caused the veteran to become a smoker during and after World War II. This hypothesis fits the template that the veteran smoked the requisite number of cigarettes to satisfy clause 6(a) of the SoP prior to the clinical onset of the bronchogenic carcinoma condition. It is also reasonable to assume that the veteran commenced his smoking habit during his service in World War II. Cigarette smoking was encouraged by the Forces, including the provision of free or subsidised tobacco.[33]
[33] Re Keenan and Repatriation Commission (1990) 21 ALD 289; Re Everett and Repatriation Commission(1991) 23 ALD 529; Repatriation Commission v Tuite[1993] FCA 39; (1993) 39 FCR 540; Cooke v Repatriation Commission (1997) 45 ALD 205
Step 4 of Deledio
I am now required to consider, under s 120(1) of the Act, whether or not, for the hypothesis, I am satisfied “beyond reasonable doubt” that the veteran's death was not war-caused. In Forrester v Repatriation Commission[34] Mortimer J, in discussing the fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at [this] stage”.
[34] [2013] FCA 898 at [80]
There is no evidence which would enable me to be satisfied beyond a reasonable doubt that the death of the veteran was not war-caused. There is an authenticity of the statements tendered on behalf of the applicant.
CONCLUSION
The veteran has loyally served King and Country in both World Wars. His widow should be accorded recognition as a war widow.
If the applicant had not succeeded on the reasonable hypothesis that she put forward I would have remitted the application for further consideration by the respondent. There would have been a need for the further investigation of the claim. It may not have been initially appreciated that the veteran rendered operational service having regard to the defective Statement of Service provided by RAAF Records.
There are a number of matters that would have required investigation. The statement of Mr Stuart which refers to the smoke filled offices used by the veteran during wartime fairly and squarely raises for consideration a hypothesis which is based on factor 6(b) of the SoP. The veteran suffered dengue fever during World War II. He also had possible exposure to radon and beryllium as radon and beryllium were used for aircraft equipment.
DECISION
I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement Act 1986, the date of effect of this decision is 20 December 2014.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 29 March 2018
Dates of hearing: 1 November 2016 Date final submissions received: 9 March 2017 Counsel for the Applicant: Mr S Mackie Solicitors for the Applicant Cockburn Legal Advocate for the Respondent: Mr B Williams
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