Talbot and Repatriation Commission

[2005] AATA 1116

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1116

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1363

VETERANS' APPEALS  DIVISION		)
Re		JOYCE TALBOT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Robin Hunt

Date11 November 2005

PlaceSydney

Decision The tribunal affirms the decision under review.  

..............................................

Ms R Hunt
  Senior Member

CATCHWORDS

VETERANS’ APPEALS -  War widow’s pension – Cause of death Ischaemic Heart Disease  – Claim that veteran’s increased smoking was a result of stress of service - Claim that war-caused death – No sufficient ground to determine death was war-caused – Decision under review affirmed.

legislation

Veterans’ Entitlements Act 1986

Statement of Principles concerning Ischaemic Heart Disease (Instrument No 53 of 2003)

cases

East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Gleeson and Repatriation Commission (1995) 41 ALD 726

Bull v Repatriation Commission [2001] FCA 1832
McLean v Repatriation Commission [2001] FCA 1505

Meehan v Repatriation Commission [2003] FCA 1371

REASONS FOR DECISION

11 November 2005	Senior Member Robin Hunt
SUMMARY

1.      Mrs Joyce Talbot, claims her late husband, Mr Alan Reeson Talbot, died from a war-caused disease and that she is entitled to a war widow’s pension on this basis. Official records show Mr Talbot was an outstanding officer who rendered operational service in the RAAF during 1942 to 1945. Mrs Talbot acknowledges that Mr Talbot was a smoker when he entered service but claims that her husband’s smoking habit increased during service due to stress and other factors. He continued smoking until 1982 and died in 1985. A cause of Mr Talbot’s death was ischaemic heart disease, which may be related to his smoking. If Mr Talbot’s smoking habit arose from or became worse due to his service, his death may be attributable to his war service. However, the tribunal has decided that Mr Talbot’s smoking was not attributable to his service. The tribunal is satisfied beyond reasonable doubt that that there is no sufficient ground for determining Mr Talbot’s death was war-caused. This means that Mrs Talbot’s claim has failed. The reasons are set out more fully below.

BACKGROUND

2.       Mr Talbot served in the Royal Australian Air Force (RAAF) from 30 March 1942 until 30 November 1945. He performed operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act) during this period.  Mr and Mrs Talbot met in 1950 and were married in 1959. Mr Talbot died on 3 May 1985. The certificate of death records the causes of his death as:

(a)Myocardial ischaemia

(b)Severe coronary atherosclerosis and thrombosis

(c)Carcinoma of the right lung with invasions of heart, superior vena caval obstruction and pneumothorax

(d)Perforated duodenal ulcer with peritonitis

ISSUES

3.      The main issue for the tribunal is whether Mr Talbot had a war-caused smoking habit.  The tribunal must decide first whether the material before it points to a hypothesis connecting Mr Talbot’s death to his service. If the tribunal finds this is so, it must then ascertain if a Statement of Principles (SoP) governs the matters to be established for the claim to succeed. Where a SoP deals with a particular kind of injury, disease or death, the tribunal must assess the reasonableness of the hypothesis as to the veteran’s death in accordance with the SoP. In the present case, Mrs Talbot has argued that her deceased husband’s death was due to a condition which is covered by a SoP as set out in the analysis below.

analysis

4.      Mrs Talbot claims that her late husband’s death was due to his increased smoking habit acquired during his service. Mrs Talbot says Mr Talbot increased his tobacco consumption as a result of his stressful service. Further, she claims this satisfies factor 5 of the relevant SoP concerning ischaemic heart disease, which is the condition that caused or contributed to her husband’s death.

5.      When Mr Talbot enlisted, he already was a moderate smoker. This is accepted by Mrs Talbot and shown in service documents before the tribunal. A form which Mr Talbot and a doctor completed and signed for his entry examination on 18 February 1942 notes he had a moderate smoking habit. As well, the respondent accepts Mrs Talbot’s evidence that Mr Talbot continued to smoke until approximately 1982 as set out in Mrs Talbot’s outline of submissions.

6.      Further evidence before the tribunal as to Mr Talbot’s smoking consists of Mrs Talbot’s written statements and research by a historian, Mr Brendan O’Keefe. The evidence about Mr Talbot’s smoking habit during and after service lacks particularity. This is due partly to the passage of time and partly to Mrs Talbot’s having met her husband some years after his service was over. As Mrs Talbot declared in her written statement, dated 2 July 2005, they met in 1950 and married in 1959. The tribunal nevertheless has taken into account Mrs Talbot’s claims and the historian’s report as permitted under s 119 (1)(h) of the Act in these circumstances where more substantial evidence is lacking.

7.      Mr O’Keefe, when preparing his report for Mrs Talbot’s case, had no direct evidence that Mr Talbot smoked any particular amount of tobacco or cigarettes but noted that cigarettes and tobacco would have been readily available to Mr Talbot in operational areas. Mr O’Keefe suggested some possible sources of information about Mr Talbot such as the Museum of Australian Military Intelligence at Canungra in Queensland and named people who served at the same time. Mrs Talbot’s solicitors followed up this suggestion but investigations through these avenues were unsuccessful. The surviving veterans did not remember Mr Talbot. As well, the reasons for decision of the Veterans’ Review Board show that previous enquiries made of St Vincent’s Hospital, where Mr Talbot was admitted on 8 occasions between 5 November 1972 and his death on 29 March 1985, were missing. All records before 1988 had been destroyed.  There is no material available to the tribunal as to Mr Talbot’s smoking habit at discharge, or at any time between his discharge and his meeting Mrs Talbot.

8.      For most of World War II, according to Mr O’Keefe, Mr Talbot would have been entitled to a free monthly issue of eleven ounces or 330 cigarettes per month. The issue was raised to thirteen ounces per month in mid-1945. In addition, Mr O’Keefe reported that the Australian Comforts Fund provided an extra free monthly issue of two ounces or 60 cigarettes. Mr O’Keefe went on to suggest it was possible that Mr Talbot’s smoking may have increased during his service and that there was a pattern of increased smoking in the army. He set out that one source had analysed questionnaires that army veterans filled out and calculated that 43% were non-smokers, 31% were light smokers, 23% were moderate smokers and 3% were heavy smokers when they joined the army. These percentages changed to 28, 19, 34 and 19 indicating a general increase during service. Mr O’Keefe mentions influences such as social climate and stressful aspects of service. However, he noted it was impossible to determine exactly how much Mr Talbot smoked.

9.      Mrs Talbot alleged in her claim form that Mr Talbot became a heavy smoker due to the stress of service. However, in the sections dealing with changes in smoking, Mrs Talbot stated she did not remember when Mr Talbot stopped nor how and when he changed smoking patterns. She set out that he probably stopped about 1982 because of his health. In the place designed to set out a veteran’s smoking history, Mrs Talbot has written “I do not know anyway to answer this”. On 23 October 2003, Mrs Talbot wrote to the Department of Veterans’ Affairs that her husband had been a “heavy” smoker and that this was a substantial increase from the moderate smoker description for his aircrew medical although she did not remember how many cigarettes he smoked. In her most recent written statement for the tribunal, made on 22 July 2003, Mrs Talbot wrote that her husband was a “moderate” smoker when she met him, that he always smoked socially and that he remained a “consistently moderate” smoker until he quit in 1982. Mrs Talbot was unable to give oral evidence to the Tribunal because of her own poor health.

The hypothesis

10.     The hypothesis put to the tribunal is that Mr Talbot’s smoking increased due to his service and that this led to his death. Other claims raised in the earlier stages of the review were no longer pursued at the hearing. The tribunal accordingly has taken the first step of determining whether a reasonable hypothesis is raised on the basis of the smoking habit. In addition to the statements from Mrs Talbot and Mr O’Keefe, Mrs Talbot’s counsel has submitted that it is well known that smoking is addictive, that statistically servicemen increased their habit during service and that continuing use of addictive substances tends to intensify use.

11.     From the letters and statements of Mrs Talbot it is difficult to reach a clear picture of the number of cigarettes or amount of tobacco Mr Talbot smoked during and after service up to his quitting in 1982. In her most recent statement, she describes Mr Talbot as a moderate smoker although she previously wrote in 2003 that he was a heavy smoker. If his habit was “consistently moderate”, as Mrs Talbot writes in her 2005 statement, it has not changed since he entered service.

12.     Turning to Mr O’Keefe’s report, I note Mr O’Keefe considered an increase in Mr Talbot’s smoking was possible. He noted a pattern of increased smoking among servicemen. He provided statistics as to percentage increases in smoking and as to quantities of tobacco and cigarettes available to servicemen. The ration of 11 ounces or 330 cigarettes he gave as the initial issue to servicemen is the equivalent of approximately 10 per day. This was later raised to thirteen ounces which, by my calculation, would lift the daily rate to less than 11 per day. The extra free monthly issue lifted the amount of tobacco available to servicemen by about another 60 cigarettes a month. In total, assuming Mr Talbot received all the tobacco set out in Mr O’Keefe’s report, these quantities would amount to approximately 13 cigarettes a day. To my mind this would enable Mr Talbot to indulge in a moderate smoking habit only.

13.     Section 120(3) requires me to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death was war-caused. Section 120A provides that the reasonableness of the hypothesis must be assessed by reference to a SoP, where such exists. The SoP covering ischaemic heart disease for the purposes of ss 120(3) and 120A in the present case is instrument number 53 of 2003.

14.     As Mrs Talbot has been unable to quantify her husband’s habit with any accuracy at any point and as it is not in doubt that Mr Talbot already was a moderate smoker when he entered service, I find myself unable to accept as a reasonable hypothesis that Mr Talbot became a heavy smoker as a result of his service. A hypothesis based on an increase in smoking intake from moderate to heavy is not predicated by any of the material or raised facts before me. It cannot be sustained even at a hypothetical level. The material before the tribunal raises no more than a vague expectation or suggestion that Mr Talbot’s smoking may have increased. Mr O’Keefe’s statistics indicate some moderate smokers became heavy smokers but the percentage of such smokers is less than half, being 34%. The combined rations issued would sustain only a moderate habit or a habit well short of the heavy habit set out in factor 5 of the relevant SoP. Mrs Talbot has variously described Mr Talbot’s habit as moderate or heavy and her 2005 statement says his habit was consistently moderate up to 1982.

15.     I have considered Mr Talbot’s smoking level according to the factors set out in the relevant SoP for ischaemic heart disease. The instrument sets out a minimum requirement where smoking has ceased prior to the clinical onset of ischaemic heart disease. Mr Talbot is in this category having ceased in 1982 and died in 1985. Factor 5 explains that the options in (a) to (e) are the minimum that must exist before a reasonable hypothesis is raised. In relation to smoking, factor 5 (e) (i) to (iii) sets out the minimum. As Mr Talbot was a smoker in 1942 and continued up to 1982, option (iii) covers his situation. The minimum requirement therefore is at least 20 pack years of cigarettes before the clinical onset of ischaemic heart disease. The factor set out at 5(e)(iii) when read with the description of pack years in the definition section at paragraph 8 of the SoP means consumption of 20 cigarettes per day for period of a year. Mr Talbot’s consumption of a possible 13 cigarettes per day clearly falls well short of this. Any higher consumption is highly unlikely on the material before me. The hypothesis put to me is unreasonable.

16.     In holding that there is no reasonable hypothesis before me I have taken note of the procedures and considerations set out in several Federal court cases brought to my attention. In Bushell v Repatriation Commission (1992) 175 CLR 408, the Full Court observed that a reasonable hypothesis must possess some degree of acceptability or credibility. At 416 there is discussion of the effect of unreliable evidence as to whether a reasonable hypothesis has been raised. The effect of unreliable material on raised facts consideration before the step of 120(3) consideration was also discussed in Byrnes v Repatriation Commission (1993) 177 CLR 564, which was decided a year later. The court in Bushell noted a tension where the hypothesis was reasonable but based on raised facts that were unreliable and the requirement that the decision maker not be satisfied there was no sufficient ground. In Byrnes, the High court explained Bushell noting that the hypothesis must first be considered as raised facts under s120(3) but the hypothesis “will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable”. If a reasonable hypothesis is established, then s120(1) is applied. The court referred to the form of words used by the court in 1987 case of East v Repatriation Commission (1987) 16 FCR 517 in rejecting fanciful or untenable raised facts as being capable of giving rise to a reasonable hypothesis. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Court outlined the main steps to be taken under section 120 since amendment in 1994. It still put s 120(3) ahead of 120(1). It may be unnecessary to undertake all the Deledio steps if no reasonable hypothesis has been raised. See Meehan v Repatriation Commission [2003] FCA 1371 . In Meehan, Jacoben J again clarified the proper construction of s 120(1) and (3) by reference to Bushell, Byrne and Deledio. He noted that in Bushell, Mason CJ, Deane and McHugh JJ noted at 412 that the applicant had no onus to discharge but the hypothesis raised must be reasonable. This required a determination in accordance with s120(3) before taking the step of determining under s120(1) that there is no sufficient ground for determining that the injury or disease was war-caused.

17.     In the present case, I find the hypothesis is untenable when Mrs Talbot’s various descriptions of her deceased husband’s smoking habit are analysed. She has not sustained her original claim that his smoking was heavy and has been unable to explain why she claims he was a heavy smoker. She has not given quantities or pattern except to say in 2005 that his smoking was consistently moderate over the years to 1982. Mr O’Keefe’s statistics do not put any doubt in my mind. The proposition that Mr Talbot’s smoking increased is very tenuous indeed and Mr O’Keefe’s material is not a pointer to the hypothesis being reasonable when one looks at the quantities available and the percentages discovered. See Bull v Repatriation Commission [2001] FCA 1832 and McLean v Repatriation Commission [2001] FCA 1505. I also do not find a persuasive parallel in the tribunal case of Gleeson and Repatriation Commission (1995) 41 ALD 726. An additional factor in that case was the existence of a war-related psychological state.

18.     While the hypothesis need not be proved for the purposes of s120, there must be some material before the tribunal to make it a “reasonable hypothesis”. The material before me is scant, contradictory and lacking particularity, especially when it comes to Mrs Talbot’s statements. In my view the hypothesis raised in the present case is too tenuous to be reasonable. I find that no reasonable hypothesis has been raised connecting Mr Talbot’s service with his death. I have considered the whole of the material before me and have reached the conclusion that it does not raise a reasonable hypothesis linking the death with Mr Talbot’s service.

19.     Mrs Talbot has been unable to substantiate the amount of cigarettes or equivalent that Mr Talbot used to smoke. Mr O’Keefe has only been able to indicate that Mr Talbot’s habit may have increased due to availability, stress and social climate. The cigarette ration he describes is the equivalent of about 330 cigarettes a month or 11 per day. Even with the extra ration of 60 per month, a smoking habit based on rations would amount to about 13 a day. This is not a particularly heavy pattern of smoking and is consistent with the moderate smoking habit that Mr Talbot already indulged when he enlisted. The expectation in the SoP for a heavy smoker is much higher, being 20 tailor made cigarettes per day or equivalents as set out in the definition of “pack years of cigarettes” or the equivalent thereof in other tobacco products”. See “other definitions” in clause 8 of the SoP.

20.     Mrs Talbot has been unable at any stage to quantify Mr Talbot’s smoking intake. Her statements and claims simply say his smoking became “heavy” during and after service as opposed to “moderate” when he was examined upon enlistment. Her last written statement made in July 2005 does not even extend to a claim of heavy smoking. Mrs Talbot there says that he was a consistently moderate smoker. As the evidence of Mr Talbot’s degree of smoking being heavy is so slight and the material before me indicates that he remained a moderate smoker at all times, I find myself unable to reach a conclusion that there is a reasonable hypothesis to link Mr Talbot’s death to his service.

21.     As I have determined in accordance with s 120(3) that the hypothesis before me is not reasonable, I next take the step of determining under s 120(1) that there is no sufficient ground for determining that the injury or disease was war-caused.

decision

22.     The tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 31 October 2005
Date of Decision: 11 November 2005       
Counsel for the Applicant: Mr Mark Vincent        
Solicitor for the Applicant: Dibbs Abbott Stillman
Counsel for the Respondent: Mr Nigel Bunn

Solicitor for the Respondent          : Department of Veterans’ Affairs