Taylor and Repatriation Commission - [2001] AATA 456

DECISION AND REASONS FOR DECISION [2001] AATA 456

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1465

VETERANS' AFFAIRS DIVISION ) V99/1467

Re George Charles TAYLOR
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member Dwyer

Date28 May 2001
PlaceMelbourne

Decision      1.        The Tribunal varies the decision of the Repatriation Commission made 27 July 1998 as varied by the Veterans' Review Board on 20 October 1999, to provide that Mr Taylor's claim for ischaemic heart disease is accepted as war-caused with effect from 24 March 1998. 2.           The Tribunal varies the decision of the Repatriation Commission made 6 January 1999 and affirmed by the Veterans' Review Board on 20 October 1999 to provide: (a)          By consent post-traumatic stress disorder, lumbar spondylosis and localised osteoarthrosis of the right hip and right knee are determined to be war-caused diseases from 10 May 1998. (b)     The claims to have peripheral vascular disease, and localised osteoarthrosis of the left knee and left hip accepted as war-caused are refused. (c)          Cerebro vascular accident and carotid arterial disease are accepted as war-caused diseases from 10 May 1998. 3.        The Tribunal reserves liberty to the parties to apply to have the assessment of the rate of pension determined by the Tribunal if they cannot agree on that matter.
  (Sgd Joan Dwyer)
  Senior Member
VETERANS' AFFAIRS - claim for pension – whether ischaemic heart disease war-caused – veteran had operational service – inconsistency in evidence – material pointing to reasonable hypothesis – issues of diagnosis and whether criteria in the definition in the relevant Statement of Principles were met – similar considerations in respect of cerebrovascular accident and carotid arterial disease – both found to be war-caused – atherosclerotic peripheral vascular disease – no medical evidence of existence of disease – not satisfied on the balance of probabilities – localised osteoarthrosis of the left hip and left knee – evidence did not satisfy definition of "trauma to joint" – found not to be war-caused
Veterans' Entitlements Act 1986 ss 9, 120(1), (3), 120A
Statements of Principles No.38 of 1999, 52 of 1999, 23 of 1998, 41 of 1998 140 of 1996

Repatriation Commission v Keeley [2000] FCA 532

Keeley v Repatriation Commission (1999) 56 ALD 455

Gorton v Repatriation Commission [2001] FCA 286, 21 March 2001

Symons v Repatriation Commission [2001] FCA 534

Repatriation Commission v Deledio (1998) 49 ALD 193
Deledio v Repatriation Commission (1997) 47 ALD 261

Bushell v Repatriation Commission (1992) 109 ALR 30

Repatriation Commission v Bey (1997) 47 ALD 481

Repatriation Commission v Cooke (1998) 52 ALD 1

REASONS FOR DECISION

28 May 2001 Mrs Joan Dwyer, Senior Member

This is an application for review of two decisions of the Repatriation Commission both of which have been considered by the Veterans' Review Board ("the VRB"). The first is a decision of the Repatriation Commission ("the Commission"), made 27 July 1998 (T8 pp55-62) and varied by the VRB on 20 October 1999. The decision as varied rejected Mr Taylor's claim for ischaemic heart disease to be accepted as war-caused within the meaning of that term in s 9 of the Veterans' Entitlements Act 1986 ("the Act"), but accepted claims for osteoarthrosis of the right ankle and chronic bronchitis. The second decision of the Commission was made 6 January 1999 (T53 pp134-144 ) and affirmed by the VRB on 20 October 1999. It refused Mr Taylor's claim to have lumbar spondylosis, localised osteoarthrosis of the left and right hips and knees, intracerebral haemorrhage, atherosclerotic peripheral vascular disease, nervous problems and carotid arterial disease accepted as war-caused. Claims in respect of bilateral sensorineural hearing loss, bilateral tinnitus and solar skin damage were accepted by the Commission on 6 January 1999. The Commission on 6 January 1999 also decided to increase the rate of pension to 50% of the General Rate from 10 May 1998.
During the first day of hearing, and by letter of 8 November 2000, the respondent conceded that post traumatic stress disorder ("PTSD"), lumbar spondylosis, localised osteoarthrosis of the right hip and localised osteoarthrosis of the right knee were war-caused, with effect from 10 May 1998. Thus the conditions remaining for decision by the Tribunal are osteoarthrosis of the left hip and left knee, ischaemic heart disease, atherosclerotic peripheral vascular disease, carotid arterial disease and cerebrovascular accident. The Tribunal also has to decide the appropriate rate of pension payable to Mr Taylor. The respondent conceded in its Statement of Facts and Contentions that once PTSD was accepted as war-caused Mr Taylor was entitled to pension at 90% of the general rate. Mr Taylor claimed the Extreme Disablement Adjustment from 10 May 1998.
Mr Hyde of Counsel appeared for Mr Taylor. Ms Casamento, an advocate with the Department of Veterans' Affairs, appeared for the respondent on the first day of hearing. Mr Douglass appeared for the respondent on the adjourned hearing. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Mr Taylor gave evidence. Evidence on his behalf was also given by his wife and by Mr Cohen, a friend of Mr and Mrs Taylor's son, Christopher, and Mr Wallis, a family friend.
Mr Taylor served in the Australian Army from 7 March 1942 to 7 January 1946. As Mr Taylor served in New Guinea the whole of his service constitutes operational service.
The circumstances in which a disease shall be taken to be war-caused are set out in s 9 of the Act. The relevant standard of proof in respect of periods of operational service is that set out in ss 120(1) and (3) of the Act which provide as follows:
120. (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to 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.
Note:     This subsection is affected by section 120A
(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 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.
Note:     This subsection is affected by section 120A
Section 120A of the Act, to which reference is made in the notes to s 120(1) and s 120(3), applies to claims made on or after 1 June 1994. Sub-section 120A(3) of the Act provides as follows:
(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); or a determination of the Commission under subsection 180A (2);
(b) …
that upholds the hypothesis.
Because Mr Taylor's claim was lodged after 1 June 1994, the provisions of s 120A of the Act apply. There has at all relevant times been a Statement of Principles ("SoP") issued by the Repatriation Medical Authority ("RMA") in respect of each of the conditions in issue. The Tribunal must apply the relevant SoPs in deciding whether or not the material before the Tribunal raises a reasonable hypothesis connecting Mr Taylor's medical conditions with the circumstances of his particular service.
In Keeley v Repatriation Commission (1999) 56 ALD 455, Heerey J held that the relevant SoP is that which was in force at the time of the original decision. That decision was upheld by the Full Court in Repatriation Commission v Keeley [2000] FCA 532.
In a number of veterans' matters before the Tribunal, the applicant has submitted that if there is a later SoP that is more beneficial to a veteran, then the later SoP should be used. That issue was not addressed in Keeley. Since then it has been considered and rejected by the Tribunal in Re Reading and Repatriation Commission [2000] AATA 841 and Re Ryan and Repatriation Commission [2000] AATA 849. A contrary conclusion was reached in Re Olsen and Repatriation Commission [2000] AATA 909. However, the Federal Court has recently considered the issue in Gorton v Repatriation Commission [2001] FCA 286, 21 March 2001, where Stone J held that the latest SoP should be applied, unless an earlier SoP, in force at the time of the primary decision, was more favourable to the applicant. In Symons v Repatriation Commission [2001] FCA 534 Lindgren J agreed with the analysis in Gorton. In view of the recent Federal Court decisions of Gorton and Symons the Tribunal must apply the current SoP, unless the earlier one in force at the time of the primary decision would be more favourable to the applicant.
The conditions as to which there is an entitlement issue fall into two groups. First there are the cardiac and atherosclerotic conditions such as ischaemic heart disease, carotid arterial disease, peripheral vascular disease and cerebrovascular accident. The second group are orthopaedic conditions, namely osteoarthrosis of the left hip and knee. It is convenient to consider the evidence and submissions in respect of the two groups of conditions separately.
cardiac and atherosclerotic conditions
For this group of conditions Mr Taylor's primary submission was that they were attributable to a service related smoking history. Subsidiary submissions related to alcohol consumption and obesity. Before considering the requirements of the various SoPs, I propose to consider the evidence as to Mr Taylor's smoking history. It is complicated and confusing because, as Ms Casamento pointed out in the respondent's Statement of Facts and Contentions and in cross-examination, and as Mr Douglass said in his final submission, there are very significant inconsistencies.
A convenient starting point for examining that evidence is Mr Taylor's statement of his smoking history dated 26 June 2000 (A1):
2I started to smoke in 1942 when I was in the Army. In 1944 I took up seriously when on pre-embarkation leave, when preparing to go overseas, because of the stress of going overseas. I was only 22 years of age at that time.
3I was smoking approximately 20-22 cigarettes per day. I continued to smoke at this level until 1962, when I ceased smoking for a period of time, and then resumed smoking, but approximately 10-12 cigarettes per day. I continued at that level until 1980 when I reduced to about 5-8 cigarettes per day, as I suffered a couple of strokes.
4I gave up smoking completely in 1996.
5.On several occasions when my doctor or specialist asked me whether I smoked, I have answered "No", as at that time I was not smoking. But I was never asked; "have you ever smoked".
In evidence Mr Taylor explained that he was not a smoker or a drinker before he went into the Army as he was a fitness fanatic. He said he started smoking about six months after joining. He said that initially he was "only more or less showing off. … I was just experimenting, as the saying goes". Then in 1944 he took it up seriously during his pre-embarkation leave in Queensland. At that time he smoked about a pack a day, 20 to 22 cigarettes (trans p27). Mr Taylor said he smoked roughly a packet a day until around 1959.
Mr Taylor said that in 1956 he met a girl who later became his wife. He said in evidence that he gave up smoking in 1959 as she had commented on his smoking habit. They then split up in about 1959 but got back together in 1962 at which time he took up smoking again, but in a moderate way (trans p28). That of course is quite inconsistent with his statement, in which Mr Taylor said he smoked at the same rate from 1944 to 1962. Mr Taylor in evidence said that he may have smoked one or two cigarettes during the 1959 - 1962 period, but he only smoked intermittently, not as a habit (trans p28). He estimated that in 1962 he smoked moderately, "about 10 cigarettes" a day.
Mr Taylor explained that in 1959 he was not able to give up smoking altogether. Some weeks he would not smoke at all, other weeks he might have a couple of cigarettes or a few more than that. He explained (trans. p28):
….I didn't smoke all the time. I was trying to give it away and, I mean, you would give it away and then you would take it up again, you would give it away, you would take it up again. I smoked like that until around about 1980.
Mr Taylor said in evidence that after he got back together with his girlfriend in 1962, she wanted him to give up smoking but he could not do so, although he only smoked moderately until 1980. He said he would give up smoking for six months or so and then be back on it again for perhaps three months. Mr Taylor had great difficulty trying to estimate the amount he smoked or the periods he smoked between 1962 and 1980. He said he might have got up to 10 or 12 a day but it was always intermittent.
In 1980 Mr Taylor said he had some health problems and was advised to give up smoking altogether (trans. p31) but did not finally succeed until 1996 when his doctor, Dr Nelson, told him he would not live long.
As to the period after 1980, Mr Taylor said (trans. p32):
Well, I more or less gave it away then, but I became what I call a social smoker, who just occasionally for a week or so you may have four or five cigarettes, five or six cigarettes or six or eight cigarettes. It depends, you know, how you felt. Then you would give it away and then you would come back to it.
Ms Casamento pointed out that when giving a history to doctors over the years, Mr Taylor had indicated either that he was a non-smoker, or that he had given up smoking in 1959 or the early 1960's. She had prepared a table summarising entries in Mr Taylor's medical file and in the T documents which were relevant to the issue of whether he smoked until the time before the clinical onset of his ischaemic heart disease as required by the relevant SoPs. Her table, with some minor corrections and additions is as follows:
DATE QUANTITY   REFERENCE
27 August 1962       "Smoke – no"           Repat Medical History (copy attached) (R7)
14 December 1988 "Non-smoker"          MMC Emergency Treatment Record (copy attached) (R7)
15 December 1988 "Smoking – None"   Ward Nursing Report (copy attached) (R7)
16 April 1989 "Non-smoker"          RGH Emergency Accident Care Record (copy attached) (R7)
22 October 1992     Gave up smoking at 38 years [ie 1959]   T Documents page 41
4 June 1998 "Commenced smoking in WW2 – smoked for 23 years" [ie 1965 approx]     T Documents page 48
14 July 1998 "Commenced smoking in the Army and continued this habit until 1962"      LMO Diagnostic Report: COAD (copy attached) (R7)
25 August 1998       Commenced smoking in Army. continued "smoking to 1962, short break then resumed and smoked to 1988"     T Documents page 96 History obtained by Dr Nelson LMO
19 February 1999    "Smoked intermittently until 1988" T Documents page 146 History given to Dr Rosenbaum
20 October 1999     "Gave up completely in 1996"      VRB Transcript page 9 (R4)

Mr Taylor's explanation for saying to doctors or in medical history forms, as shown in some of the documents (e.g. in 1962 and 1988), that he did not smoke or was a non-smoker was, "at that particular time I wasn't smoking" (trans. p34). He added, "if they had asked me, have you ever smoked or something, I would have to say, yes" (trans. p35). That reasoning did not explain why in 1992 (T docs p41) Mr Taylor had filled in a smoking questionnaire saying that he gave up smoking at age 38, which would have been in 1959 or 1960. Nor did it explain the references in T documents p48 and R7 to having given up smoking in 1959 or 1962. Mr Taylor's explanation for overlooking many years of intermittent smoking after 1959 or 1960 when completing the smoking questionnaire was that 1992 was a "lost year" for him because of a number of family problems (trans. pp35-36).
There are however some documents which do support the claim made by Mr Taylor in these proceedings, that he continued smoking until 1996. In August 1998 (T docs 96) he apparently did tell his doctor, Dr Nelson, that he had resumed smoking after giving up in 1962 and had smoked to 1988. That was when Dr Nelson was completing documentation supporting the claim to have Atherosclerotic Peripheral Vascular Disease accepted as a war-caused disease. Mr Taylor in evidence said he had gone on smoking after 1988, but he classed himself as only a social smoker after that, by which he seemed to mean that he did not smoke on a daily basis but would "go for two or three weeks without a cigarette . . . and then . . . smoke four or five cigarettes." (trans. p36).
Ms Casamento challenged the statements Mr Taylor made in his smoking statement and in evidence. She put to him that he really stopped smoking in 1959 at age 38, as he had put in the smoking questionnaire he completed in September 1992 (T docs p41). She also put to Mr Taylor that even if it was correct, as he said in A1, that he had smoked until 1962, then from 1962 at a reduced level of approximately 10-12 cigarettes a day until 1980, and then at a still further reduced level until 1988, he had really given up in 1988 as he had told Dr Nelson in August 1988 (T docs p96) and Dr Rosenbaum in February 1999 (T54 p146). Mr Taylor replied that he probably did give the doctors that history, but he said of Dr Rosenbaum's history (trans. p51):
I probably did give him that, but I didn't explain to him that I did give it away and take it up and give it away and take it up all the time. I mean, as I said from about 1980 on I only used to smoke socially, what I call socially. I mean, you just used to have a few cigarettes when you went out or something like that. You didn't smoke everyday.
In answer to further questioning, Mr Taylor repeated that he had said he was a non-smoker as recorded in the document relating to his admission to Monash Medical Centre for his stroke on 14 December 1988 (R7) because he was not smoking at the time. He gave the same reason for the comment "smoking none" in the Heidelberg Hospital admission document of 15 December 1988 (R7). He explained further, "I was an intermittent smoker. I wasn't smoking heavily all the time. I was a social smoker, as the saying goes" (trans. p52).
Ms Casamento also referred Mr Taylor to a report by a vascular physician Dr Blomberry, who, in 1992, had obtained a history from Mr Taylor that he had ceased smoking years previously (R1, p27). Mr Taylor said he did not know where Dr Blomberry got that history. He did not recall speaking to him, but he agreed that he must have done so.
Ms Casamento then asked Mr Taylor, on the basis of his evidence that he smoked at a reduced level and intermittently from 1962 to 1980, whether he was more often a smoker or a non-smoker during that period. He replied that he was more often a smoker (trans. p54).

Whether Mr Taylor was still smoking in 1992 is not relevant to the issues before the Tribunal, but the evidence about what Mr Taylor told Dr Blomberry is relevant in determining what weight if any can be given to Mr Taylor's evidence as to his smoking habit. I suggested to Mr Taylor that I found it hard to believe that he would have given Dr Blomberry a false smoking history when he was about to undergo surgery for a left hip replacement. Dr Blomberry was giving an opinion on the advisability of that surgery, in view of Mr Taylor's history of hypertension, stroke and carotid arterial disease. Mr Taylor acknowledged that he knew the operation was very risky. He, in fact said that another doctor had advised that he was not fit to undergo the proposed surgery (trans. p56).
There is no doubt that Mr Taylor has given a number of conflicting smoking histories to doctors and to the Department of Veterans' Affairs. It was not put to him explicitly that the reason for his inconsistencies was that he was changing the facts to improve his prospects of success in his application to have his cardio-vascular conditions accepted as war-caused, but that seemed to be the inference Ms Casamento was asking the Tribunal to make. There was a sufficient basis for such a submission. I place great weight on the facts that in 1988, when admitted to hospital because of a stroke, Mr Taylor twice said he was a non-smoker and that in 1992, when being examined for the purpose of assessing his fitness for surgery, he said that he had ceased smoking years previously.
However before deciding whether the material before the Tribunal points to or raises the necessary reasonable hypotheses, it is necessary to consider the evidence of Mrs Taylor and of Mr Cohen and Mr Wallis.
mrs taylor
Mrs Taylor's evidence supported that of Mr Taylor in so far as she said he smoked into the 1980's and only finally gave up in 1996, but it conflicted with his on all the detail of his habit. Mrs Taylor said that she met her husband in 1956 and at that time she considered him to be a heavy smoker. She said that even when they had broken up they remained friends and went out for dinner and he still smoked heavily. That continued after they got back together which she said was in about 1960.
Mrs Taylor said they were married in 1962. She gave up smoking in 1962 when she became pregnant, but she said that Mr Taylor continued until the early 1980's when he tried to give it up. She said prior to the 1980's "he just kept on smoking. As far as I knew he was just still the same, going at the same rate, never changed his ideas at all." (trans. p63).
Mrs Taylor said that Mr Taylor tried to give up smoking during the 1980's but did not finally do so until about 1996. When the Tribunal put to her that it had difficulty accepting that he would have told Dr Blomberry in 1992 that he had given up smoking years previously, if that were not true, Mrs Taylor said she could not understand why he would have done that.
mr cohen
Mr Cohen said he is a friend of Mr Taylor's son, Christopher. He said he met Christopher Taylor, and through him Mr Taylor, at the start of 1988 when he started University. Mr Cohen said he was 17 and did not have a car and Christopher drove him home from University and they would drop in at the Taylor home sometimes and see Mr Taylor.
Later, after he got a car, Mr Cohen said he would at times drive Christopher to and from University. Mr Cohen said he was a smoker and Mr Taylor would "bot cigarettes off me". Mr Cohen said he did not see Mr Taylor smoking his own cigarettes or having cigarettes "lying around" (trans. p103). He thought he might have seen Mr Taylor smoking maybe twice a fortnight. He said Mr Taylor did not carry any packets of cigarettes himself.
In his statutory declaration signed 12 August 1998 (A6) Mr Cohen said:
GEORGE CHARLES TAYLOR . . . HAS BEEN A REGULAR VISITOR TO MY HOME FOR SEVERAL YEARS. ON A VISIT TO MY HOME JUST AFTER HE SUFFERED A STROKE I NOTICED THAT HE HAD GIVEN UP SMOKING,
BUT HE STARTED SMOKING AGAIN AFTER A SHORT PERIOD OF TIME AND DID SO UNTIL 1996 WHEN HE STOPPED THE HABIT BECAUSE OF HEALTH REASONS.
The evidence Mr Cohen gave did not seem consistent with his statutory declaration. He did not say that Mr Taylor was a visitor to his home, as he said in the statutory declaration. Because Mr Cohen was Christopher Taylor's university friend, it seems much more likely that he and Mr Taylor would have met at the Taylor's home. Similarly, Mr Cohen said that Mr Taylor did not discuss with him the fact that smoking was bad for his health, yet in the statutory declaration he said that Mr Taylor gave up smoking for health reasons in 1996.
mr wallis
Mr Wallis had also made a statutory declaration dated 12 August (A7). It was in very similar terms to that of Mr Cohen. It states.
I HAVE KNOWN GEORGE CHARLES TAYLOR FOR APPROXIMATELY FORTY YEARS. HE STOPPED SMOKING IN 1988 AFTER HE SUFFERED A STROKE.
HE STOPPED SMOKING FOR A SHORT PERIOD OF TIME BUT STARTED SMOKING AGAIN INTERMITTENTLY THEN CONTINUED SMOKING UNTIL 1996.
Mr Wallis said he met the Taylor family when the Parish Priest arranged for people to help students who were having difficulties with their school work. He was himself a very good student and he was able to help Anthony Taylor. Mr Wallis agreed with Mr Hyde that that would have been in the 60's or about 1960 (trans. p107). As Anthony was not born until December 1962, that clearly could not be correct. Similarly Mr Wallis said in his statutory declaration that he had known the Taylor family for approximately 40 years. That also cannot be correct. He said Anthony was at school and having difficulties with reading when they met. Anthony would not have started school until about 1968, and it is unlikely that he would have become involved in a tutoring program until perhaps 1970, when he was aged 7.
In evidence Mr Wallis said that he was conscious of Mr Taylor's smoking because he is a non-smoker and conscious of the dangers of passive smoking. He added:
So whenever he did light up I'd make myself scarce because I didn't want to be exposed to passive smoking, so that was why I was conscious of it.
Mr Wallis said Mr Taylor smoked whenever he saw him until 1988. He said Mr Taylor was smoking that much until the time of his stroke in December 1988. On further questioning, Mr Wallis acknowledged that he did not see much of Mr Taylor in 1988, because by that time Anthony was not living at home, so his own visits to the house had become less frequent.
Mr Hyde suggested (trans. pp80-81) that if the applicant could arrange for Dr Nelson to give evidence that would be very helpful:
MR HYDE: . . . . But most particularly, the way the evidence has fallen today seems to me, with respect, that if Dr Nelson is available and has something to say about those matters where his input was referred to, that is, a reference to the veteran that he not smoke or give up smoking, that is obviously going to be important evidence if it exists and I just do not know . . .

The Tribunal agreed that such evidence would be very helpful.

On the resumed day of hearing I was told that for health reasons Dr Nelson was unavailable. I found the evidence of Mr Cohen and Mr Wallis to be not very helpful. Mr Cohen did not know Mr Taylor until 1988. He said that from that time on Mr Taylor did not smoke his own cigarettes. Mr Wallis knew Mr Taylor from perhaps 1970 onwards, and he said that Mr Taylor was a smoker then and smoked his own cigarettes in his own home. That does point to Mr Taylor not having given up prior to 1970 but it does not help estimate the rate of smoking in the 1970's and 1980's.
I found all the evidence as to the smoking issue very unsatisfactory. Mr Taylor has clearly made many incorrect statements about his smoking habits to both doctors and the Tribunal. The picture Mr Taylor painted of his smoking habit over the years, was different to that Mrs Taylor gave. Mr Cohen and Mr Wallis made statutory declarations in almost identical terms, but their evidence conflicted in some respects with their own statements, and in other respects with each other. For example Mr Cohen said he never saw Mr Taylor smoke his own cigarettes, and Mr Wallis said he saw him do so every time he came to the house until the stroke in December 1988.
The evidence as to smoking is indeed very confusing. In approaching the Tribunal's task it is necessary to bear in mind the guidance given by the Full Court in Repatriation Commission v Deledio (1998) 49 ALD 193 and by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as to the application of the SoPs. The Full Court, at p205, approved the following passage from the reasons of Heerey J, at p275:
The particular claim … has to fit the template laid down in the SoP. … Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not an issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proven or known facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more of the facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved reasonable doubt.
At no stage is there an onus of proof on the claimant.
The Full Court in Deledio, at p206, set out the course which the Tribunal is to take where the reasonable hypothesis standard of proof applies and where there is a relevant SoP:
1.        The Tribunal must consider all the material which is before it and determine whether that material points to an 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.
2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11) ….
3.        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 not 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.
4.        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 doing so, no question of onus of proof or the application of any presumption will be involved.
The hypothesis relied on by Mr Hyde (at trans. p140) is that service related smoking did not cease in the mid 1960's or 15 years after discharge as reported by Mr Taylor to doctors and in his smoking history (A1), but continued at a significant level until 1988 after which it continued but at a diminished rate until 1996.
The smoking related evidence given by Mr Taylor and his witnesses may give rise to a reasonable hypothesis bearing in mind that, "proof of facts is not in issue at this point". In view of the many different accounts of Mr Taylor's smoking habit it is necessary to bear in mind not only the comments of Heerey J in Deledio, which were approved by the Full Court, but also those of the Full Bench of the Federal Court in Repatriation Commission v Bey (1997) 47 ALD 481 at p489. The majority in Bey stated that "for a hypothesis to be reasonable, it must; as East [(1987) 74 ALR 518] states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker." The Court in Bey referred to Bushell v Repatriation Commission (1992) 109 ALR 30 at p34 where Mason CJ, Deane and McHugh JJ said:
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.

At p490 the majority in Bey repeated that a reasonable hypothesis must be "pointed to by the facts, even though not proved upon the balance of probabilities".

Mr Douglass, at trans. p147, acknowledged that Mr Taylor's evidence at the hearing did raise a hypothesis of compliance with the smoking factor in the SoPs. But, he asked the Tribunal to find that the only consistent evidence was that of Mr Taylor, that he gave up smoking at around 38 years or in about 1962, as stated at a medical examination in 1962 (R7) and in the T documents at T documents pages 41, 48 and in the 1998 LMO report (R7).
I consider that I am obliged to find that some of Mr Taylor's evidence, and that of his wife and Mr Wallis does point to Mr Taylor continuing to smoke regularly up until 1980 or thereabouts. There is evidence pointing to that scenario, although it is not proved upon the balance of probabilities. However from that time on, although there is evidence of Mr Taylor continuing to smoke, it is of smoking on an intermittent basis only, while trying to give up smoking, rather than of being a regular daily smoker.
The first step in the Deledio process requires the Tribunal to determine whether the material points to an hypothesis connecting Mr Taylor's cardiac vascular diseases with the circumstances of his service. I have decided that there is material pointing to a hypothesis of such a connection on the basis of Mr Taylor's smoking habit.
As to question 2 there are SoPs in force in respect of all the relevant conditions.
As to question 3, the Tribunal must form an opinion as to whether the hypotheses relied on are consistent with the "template" to be found in the relevant SoP's. On that issue Mr De Marchi in the applicant's Statement of Facts and Contentions helpfully set out the relevant to factors from the SoPs in respect of three of the relevant conditions in force at the time of the Repatriation Commission's determinations to reject the relevant conditions. The applicant's Statement of Facts and Contentions provides:
ISCHAEMIC HEART DISEASE/CAROTID ARTERIAL DISEASE/ATHEROSCLEROTIC PERIPHERAL VASCULAR DISEASE;
Statement of Principles No. 140 of 1996 as amended by numbers 77 of 1997 and 37 of 1998 for Ischaemic Heart Disease Factor 5(e); "(e) smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of ischaemic heart disease and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or".
Statement of Principles no. 346 of 1995 for Carotid Arterial Disease Factor 1(d); "(d) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of carotid arterial disease and where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or"
Statement of Principles No. 87 of 1995 for Atherosclerotic Peripheral Vascular Disease Factor 1(a); "(a) smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of atherosclerotic peripheral vascular disease and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or".

In addition the relevant SoP for Cerebrovascular Accident was Instrument No. 52 of 1999 in which factor 5(k) was as follows:

(k) for cerebral ischaemia only,
(i) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or

If the Tribunal were to look first at the current SoP for Ischaemic Heart Disease as suggested by the decisions of Gorton and Symons, that SoP is Instrument No. 38 of 1999. It provides in factor (e):
(e) where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation.
Upon consideration of the two SoPs, Instrument No 140 of 1996 is more favourable as it requires only smoking of at least 5 cigarettes a day for three years, rather than of pack years of cigarettes where a pack year is twenty tailor made cigarettes per day for a period of one calendar year or 7300 cigarettes. As the current SoP is less favourable to Mr Taylor, he is entitled to have the Tribunal apply the SoP in force at the date of the original rejection of his claim.
dates of clinical onset
In this matter there is no dispute about the date of clinical onset of each of the relevant conditions. Dr Hammond, a cardiologist, provided two reports, R2 and R3 in which he addressed that issue. The applicant accepted his opinions. Dr Hammond wrote that the date of clinical onset of carotid athrerosclerosis (carotid arterial disease) and stroke (Cerebrovascular Accident) was 14 December 1988. Dr Hammond pointed out that the documents referred to angina as diagnosed in 1985. He accepted that as the date of clinical onset of ischaemic heart disease.
ischaemic heart disease
SoP Instrument No. 140 of 1996 as amended would require that Mr Taylor have smoked five cigarettes a day or the equivalent thereof for at least three years before the clinical onset of ischaemic heart disease, and where smoking has ceased, the clinical onset occurred within 15 years of cessation.
On any account Mr Taylor did smoke at least five cigarettes a day for at least three years during service and prior to 1959. There is no clear evidence that he had actually ceased smoking by 1985. There is evidence pointing to him continuing to smoke throughout the 1960's and 1970's and at a reduced rate during the 1980's. The evidence of Mr Wallis and Mrs Taylor supports Mr Taylor's evidence that he was a regular smoker in the 1970's. It is the period up to 1970 which is relevant for ischaemic heart disease. Dealing with Deledio question 4, I cannot be satisfied beyond reasonable doubt that Mr Taylor had ceased smoking prior to 1970. Thus there is material raising the hypothesis that Mr Taylor smoked at least 5 cigarettes a day for at least three years before the clinical onset of ischaemic heart disease and that smoking continued either until the clinical onset of ischaemic heart disease or to a date less than 15 years before 1985.
It is an interesting question whether smoking must continue at the specified rate. Is a continuing intermittent smoking habit of less than 5 cigarettes a day to be regarded as continuing to smoke or as cessation of smoking? It is however not necessary to decide that question in this matter as Mr Taylor said in his statement (A1) that he smoked 10-12 cigarettes a day until 1980. His wife also said he smoked heavily until 1980. In his evidence Mr Taylor said even before 1980 his smoking was intermittent, but his statement and his wife's evidence and that of Mr Wallis does raise the hypothesis of him continuing smoking at the rate of at least 5 a day until 1980.

I find that there is evidence from Mr and Mrs Taylor and Mr Wallis which is consistent with the "template" in SoP Instrument No. 140 of 1996 as amended. I cannot be satisfied beyond reasonable doubt under s 120(1) of the Act that ischaemic heart disease is not war-caused. Thus I find that ischaemic heart disease is a war-caused disease.
carotid arterial disease
Dr Hammond wrote that the clinical onset of carotid arterial disease was on 14 December 1988. Thus for Mr Taylor to succeed in this claim there would need to be material before the Tribunal pointing to him having smoked at least five cigarettes a day for five years, and the clinical onset of carotid arterial disease being within 15 years of cessation of smoking. That requires that Mr Taylor have been smoking up to 1973. As pointed out in respect of ischaemic heart disease, the evidence of Mr Taylor, Mrs Taylor and Mr Wallis is of Mr Taylor continuing to smoke as a regular smoker until about 1980, and then continuing as an intermittent smoker until he had the stroke on 14 December 1988. I cannot be satisfied beyond reasonable doubt that that evidence is not correct. I find that carotid arterial disease is a war-caused disease.
atherosclerotic peripheral vascular disease
Dr Hammond in his report (R3) wrote that he could find no convincing evidence in the medical records that Mr Taylor suffered from atherosclerotic peripheral vascular disease. That issue is to be determined on the balance of probabilities. See Repatriation Commission v Cooke (1998) 52 ALD 1. The respondent did not call Professor Myers to challenge Dr Hammond's conclusion from the medical records. I am not satisfied on the balance of probabilities that Mr Taylor suffers from atherosclerotic peripheral vascular disease. The rejection of the claim for atheroslerotic peripheral vascular disease will not be varied.
cerebrovascular accident
The date of clinical onset for this condition is 14 December 1988. Factor 5(k) in Instrument No. 23 of 1998 is in the same terms as factor 1(d) in the SoP for Carotid Arterial Disease. The date of onset of the two conditions is the same. Thus for the reasons given in respect of carotid arterial disease, I find cerebrovascular accident is also a war-caused disease.
localised osteoarthrosis of the left hip and left knee
As to the orthopaedic claims, the medical records confirm Mr Taylor's account (A2) of an incident when he was injured while working with Army stores at Albury in November 1942. He was working on top of a stack of anti-aircraft gun barrels, when the floor gave way. He fell and the gun barrels rolled out of the stack and rolled over his right leg. Mr Taylor said his left leg was "tucked back behind me" (trans. p11) and he was "pinned hard up against this brick pier . . . I went straight down the pier when the floor went away."
Mr Taylor said he was screaming with pain and the other storemen used a gantry to lift a gun barrel off his right leg. He was taken to 106 AGH hospital. He explained that not only was his right leg in pain, both hips were also in "terrible pain," because of the squashed position he was in while they were shifting the barrel. He estimated that could have taken half an hour or more.
In hospital Mr Taylor said that he saw Captain McLure, a doctor, who told him he had a fractured right fibula. However he said he was given no treatment and was left lying on a stretcher for two days. He thought that as he was getting no treatment he might as well go back to his unit. When he asked to be discharged to his unit that was agreed to, but the diagnosis of fractured fibula was changed by Captain Edgar to "badly bruised leg". The service medical records of November 1942 (T docs. p35) refer only to pain and bruising of the right fibula and surprisingly even state, "walks well" on the day following the accident.
After discharge to his unit Mr Taylor said he remained in his tent in bed for three weeks. He could not get out of bed and was looked after by his mates. Then for six weeks he slowly improved with exercises prescribed by the medical officer. He started putting weight on his legs and then returned to light duties, being clerical work.
Mr Taylor said that during the nine weeks following the incident he was very tender down the front of his right leg, in both hips and in the back especially the back of the spine (trans. p23). The left leg was not bad (trans. p19). Mr Taylor said he could not play sport after the incident, he also mentioned a grating in the left knee. However he did build up the strength in his legs and in 1944 he went overseas to serve in New Guinea. Mr Taylor said he had a number of cartilage operations on the left knee. There is a suggestion in a decision of the VRB, T docs p25, that the left knee was injured playing football. Mr Taylor was not asked about that, but he said he thought the left knee surgery was in 1948, but it could have been in 1954 or 1958 (trans. p22).
The SoP for osteoarthrosis, Instrument No. 41 of 1998, requires in factor 5(j) "suffering a trauma to a joint before the clinical onset of osteoarthrosis in that joint." The SoP defines "trauma to a joint" as follows:
"trauma to a joint" means a discrete joint injury that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of that joint. These acute symptoms and signs must last for a period of at least seven days immediately after the injury occurs;
Mr Taylor gave evidence that both hips hurt at the time of the accident but he gave no account of acute symptoms and signs of pain, swelling, tenderness and altered mobility or range of movement of the left hip or left knee lasting for at least seven days after the injury. His evidence was that his right leg was severely injured and the left leg was not bad. The respondent has accepted osteoarthrosis of the right hip and right knee on the basis that it was the injury to the right leg which incapacitated Mr Taylor. There is no evidence pointing to a trauma of the left hip or knee such as to satisfy the SoP. The decision in respect of osteoarthrosis of the left hip and left knee will not be varied.
The Tribunal will:
1.Vary the decision of the Repatriation Commission made 27 July 1998 as varied by the Veterans' Review Board on 20 October 1999 to provide that ischaemic heart disease is accepted as war-caused with effect from 24 March 1998.
2.The Tribunal will vary the decision of the Repatriation Commission made 6 January 1999 and affirmed by the Veterans' Review Board on 20 October 1999 to provide:
(a)By consent post-traumatic stress disorder, lumbar spondylosis and localised osteoarthrosis of the right hip and right knee are determined to be war-caused diseases from 10 May 1998.
(b)The claims for peripheral vascular disease, and localised osteoarthrosis of the left knee and left hip to be accepted as war-caused are refused.
(c)Cerebro vascular accident and carotid arterial disease are accepted as war-caused diseases from 10 May 1998.
3.The Tribunal reserves liberty to the parties to apply to have the assessment of the rate of pension determined by the Tribunal if they cannot agree on that matter.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         Chan Wai Heng
  Associate
Date/s of Hearing  3 November and 19 December 2000
Date of Decision  28 May 2001
Counsel for the Applicant        Mr Hyde
Solicitor for the Applicant         De Marchi and Associates
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Ms Casamento