The Estate of Barry Campbell and Repatriation Commission (Veterans' entitlements)
[2023] AATA 2303
•1 August 2023
The Estate of Barry Campbell and Repatriation Commission (Veterans' entitlements) [2023] AATA 2303 (1 August 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2022/9857
Re:The Estate of Barry Campbell
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
The decision under review is affirmed.
Tribunal:Senior Member George & Member Ormston
Date:1 August 2023
Place:Adelaide
...............................[Sgnd].........................................
Senior Member George
...............................[Sgnd].........................................
Member Ormston
Catchwords
VETERANS – Conditions – Statement of Principles concerning Chronic Obstructive Pulmonary Disease (No. 18 of 2023) - Statement of Principles concerning Fibrosing Interstitial Lung Disease (No. 86 of 2021) – Veterans Entitlement Act – Veterans Review Board – Australian Army – decision under review affirmed
LEGISLATION
Veterans Entitlement Act 1986 (Cth)
CASES
Kattenberg v Repatriation Commission (2002) 73 ALD 365; [2002] FCA 412
Repatriation Commission v Money (2009) 173 FCR 410; [2009] FCAFC 11
Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40
SECONDARY MATERIAL
Statement of Principles concerning Chronic Obstructive Pulmonary Disease (No. 18 of 2023)
Statement of Principles concerning Fibrosing Interstitial Lung Disease (No. 86 of 2021)
REASONS FOR DECISION
Senior Member George
1 August 2023
Ms Anne Campbell (“the Applicant”) is the widow of the late Mr Barry Campbell (“the Veteran”).
On 13 May 2021, the Veteran submitted a claim for compensation for Chronic Obstructive Pulmonary Disease (“COPD”) and Idiopathic Pulmonary Fibrosis (of lung) (“IPF”) pursuant to the Veterans’ Entitlement Act 1986 (Cth) (“the Act”).[1] On 27 January 2022, the Department of Veterans’ Affairs did not accept liability for the Veteran’s claimed conditions of COPD and IPF.[2]
[1] Exhibit R2, T-Documents, T4, Claim for Compensation.
[2] Exhibit R2, T-Documents, T13, Letter of Department of Veterans’ Affairs.
On 7 February 2022, the Veteran applied for a review of the determination dated 27 January 2022 by the Veterans’ Review Board (“the VRB”).[3] On 3 August 2022, the VRB affirmed the determination of 27 January 2022 not to accept liability for the Veteran’s claims of COPD and IPF (“the Reviewable Decision”).[4]
[3] Exhibit R2, T-Documents, T14, Review of Decision.
[4] Exhibit R2, T-Documents, T3, Decision of Veterans’ Review Board.
On 1 December 2022, the Veteran lodged an Application for Review of the Reviewable Decision with the Tribunal.[5] The Veteran subsequently passed away and the Application has been continued by the Applicant in accordance with s 126(1) of the Act.
[5] Exhibit R2, T-Documents, T1, Application for Review of Decision, pages 1-5.
The hearing proceed by audio-visual means on 12 July 2023. The Applicant was self-represented, and the Respondent was represented by Mr A Gardner of Minter Ellison.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Section 70(1) of the Act relevantly provides that where the death of a member of the forces was defence caused then the Commonwealth is liable to pay a pension by way of compensation to the member’s dependants. Under section 70(5) of the Act, the death of a member shall be taken to have been defence-caused if the death arose out of, or was attributable to, the member’s defence service.
Section 120(4) of the Act relevantly provides that the standard of proof is “reasonable satisfaction”. In relation to section 120(4) of the Act, section 120B of the Act further provides that the Tribunal must be reasonably satisfied that the death of a person was defence-caused only if:
(a)the material raises a connection between the death of the person and some particular service rendered by the person; and
(b)there is a Statement of Principles (“SoP”), or a determination of the Commission, that upholds the contention that the death of the person is, on the balance of probabilities, connected with that service.
Section 196B(14) of the Act relevantly provides:
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the court of duty, on a journey;
(i)to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury, it resulted from an accident that would not have occurred:
(i)but for rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease, it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person, it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.
In Kattenberg v Repatriation Commission (2002) 73 ALD 365; [2002] FCA 412 at [9], Emmett J explained the meaning of s 196B(14) of the Act:
Section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase “related to service”. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes of contributes to a disease is related to service rendered by a person, relevantly if:
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service;
…
(f)in the case of a factor causing, or contributing to a disease-it would not have occurred…but for the rendering of that service by the person.
In Roncevich v Repatriation Commission (2005) 222 CLR 115; [2005] HCA 40 at [23], McHugh, Gummow, Callinan and Heydon JJ held that:
… whether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be a causal and not merely temporal one.
In Repatriation Commission v Money (2009) 173 FCR 410; [2009] FCAFC 11 at [86], Dowsett JJ held that:
Section 120B(3) imposes a significant limitation upon the circumstances in which the Commission may find that a disease is defence-caused. It prescribed a two-step process. Firstly, the Commission must, on the material before it, identify any connection between the disease and a veteran’s service. Secondly, it must consider whether the relevant statement of principles “upholds the contention” that the disease is, on the balance of probabilities, connected with such service. If that question is answered in the affirmative, the Commission may proceed to consider whether it is reasonably satisfied as to the relevant causal link contemplated by s70. … Hence the question to be answered is whether his service materially contributed to, or aggravated his condition. The Commission must answer that question in accordance with ss 120(4) and 120B(3). Section 120(4) requires that the Commission be reasonably satisfied as to such matter. Section 120B(3)(a) requires that before the Commission can be so satisfied, it must identify a connection between the material contribution or aggravation of the Veteran’s IFA and his service. The Commission must then consider whether the statement of principles upholds the contention that any contribution to, or aggravation of, his IFA was connected with his service.
BACKGROUND
The Veteran was born in October 1950. He served in the Australian Army between 22 August 1972 and 21 August 1975. The period of service covered by the Act was 7 December 1972 to 21 August 1975.
During his service, the Veteran was employed as Recruit and corps training 8 months and Regimental and Rifleman duties with Infantry units 2 years 4 months.[6] He was honourably discharged in August 1975 on the completion of his period of engagement.[7]
[6] Exhibit R2, T-Documents, T4h, Certificate of Discharge: Types of Employment During Service, page 46.
[7] Exhibit R2, T-Documents, T4h, Certificate of Discharge, page 46.
On or around 1 March 1969, the Veteran began smoking cigarettes.[8] This was approximately three years before his enlistment into the Australian Army. The Veteran reported smoking 5 cigarettes per day at the time resulting from “peer pressure socialising etc”.[9] In separate evidence, the Veteran said that, aged 19 years, he started smoking “socially 3 to 5 cigarettes every other day”.[10]
[8] Exhibit R2, T-Documents, T4a, Claim for Compensation: Tobacco and Alcohol, page 33.
[9] Exhibit R2, T-Documents, T4a, Claim for Compensation: Tobacco and Alcohol, page 33.
[10] Exhibit R2, T-Documents, T16a, page 158.
The Veteran reported that in December 1972 his smoking habit increased to 20 cigarettes per day. He reported that in August 1973 he was smoking 30 plus cigarettes per day. In 2005, he permanently stopped smoking cigarettes citing health reasons.[11]
[11] Exhibit R2, T-Documents, T4a, Claim for Compensation: Tobacco and Alcohol, page 33.
The Veteran’s record of service relevantly provides the following:
(a)22 August 1972 – 1 RTB (1 Recruit Training Battalion)
(b)14 November 1972 – UNIT All Corps – Inf Centre 571 – basic soldier CORPS TRAINEE
(c)23 March 1973 – UNIT – 65323 = 8RAR
(d)28 August 1973 – DEPL – Butterworth
(e)28 November 1973 – EMPL, DEPL – Butterworth; Eagle Farm
The Veteran’s claimed conditions were diagnosed as follows:
(a)COPD: date of onset 10 February 2015; and
(b)IPF: date of onset 29 June 2021.[12]
[12] Exhibit R2, T-Documents, T12e, Diagnostic Assessment of Dr Kulkarni, page 79.
The Veteran’s treating General Practitioner, Dr Kulkarni, considered the cause of the claimed conditions to be “[e]xposure to dust, Aviation fuel, gun powder 30%; cigarette 70%”.[13]
[13] Exhibit R2, T-Documents, T12e, Diagnostic Assessment of Dr Kulkarni, page 79.
On 22 May 2022, the Veteran passed away at the age of 71 years. His cause of death is recorded as follows:
1(a) Cardiomyopathy (b) Congestive heart failure (c) Severe pulmonary hypertension (d) Ischaemic hear disease (e) Combined pulmonary fibrosis and emphysema 2(a) Syndrome of inappropriate antidiuretic hormone secretion, pulmonary embolism (b) Interstitial lung disease.
The Applicant contends that the Veteran’s claimed conditions of COPD and IPF were caused by his defence service. Specifically, that the Veteran’s service resulted in him increasing his smoking habit, and that he was exposed to dust, asbestos and/or other chemicals which caused or contributed to him developing the claimed conditions.
In his claim for compensation of the claimed conditions, the Veteran stated that “going from basic training to corps training more pressure and stress” and “stress from posting to Malaysia” were the reasons why his smoking habit increased in December 1972.[14]
[14] Exhibit R2, T-Documents, Claim for Compensation, T4a, page 33.
The Veteran claimed that smoking was encouraged during his basic training in Kapooka:
During my time in Kapooka, while doing our training, every 15 minutes or so, our instructor told us to “have a break and light up and those of you who do not smoke, just go through the motions.”[15]
[15] Exhibit R2, T-Documents, Letter to the Department of Veterans’ Affairs, T16a, page 158.
Three months later, the Veteran progressed to corps training at Holsworthy Army Base in Sydney, at this stage he was smoking a packet of cigarettes a day:
Smoking was encouraged and was a socially acceptable part of military life and my smoking started to increase by the time my training had finished. Three months later, I was smoking a packet a day of 20 cigarettes.[16]
[16] Exhibit R2, T-Documents, Letter to the Department of Veterans’ Affairs, T16a, page 158.
In March 1973, the Veteran was sent to Enoggera Army Barracks. He claimed smoking was still encouraged, by which time his smoking increased to a packet and a half a day:
In March 1973, I was sent to Enoggera Army Barracks, where the smoking was still rife and encouraged and if you did not smoke, you were always the odd one out and a lot of peer pressure was placed on you by your fellow soldiers… So by this time I was smoking about a packet and a half a day.[17]
[17] Exhibit R2, T-Documents, Letter to the Department of Veterans’ Affairs, T16a, page 159.
The Veteran claimed that his smoking habit increased again to 30 plus cigarettes a day in August 1973 due to, “stress from being in an active zone, Malaysia”.[18]
[18] Exhibit R2, T-Documents, Claimant’s Smoking Questionnaire, T4j, page 49.
Between August 1973 to the end of November 1973, the Veteran was sent to Butterworth Airbase where he claimed, “my smoking increased dramatically, to sometimes up to two packets a day”.[19]
[19] Exhibit R2, T-Documents, Letter to the Department of Veterans’ Affairs, T16a, page 159.
The Veteran claimed his smoking increased upon preparing to go to Malaysia “the sergeant was asked by a member of the platoon, what he meant by “active zone”, he replied “you may get shot at” … “It was during this time that my smoking increased”.[20]
[20] Exhibit R2, T-Documents, Letter to the Department of Veterans’ Affairs, T16a, page 159.
During the Veteran’s tour of Malaysia, three separate incidents occurred that the Veteran said put him under an enormous amount of stress and that “no wonder we smoked ourselves silly”:
(a)A few weeks after the Veteran’s arrival into Malaysia, a petrol tanker was “attacked by communists with machine guns”;
(b)In early October, a hand grenade was put down the hatch of a Malaysian Military Personnel Carrier, “we heard a thump, an hour or so later the carrier was towed back to the Malaysian Military Base and we were told a hand grenade was put down the hatch by communist terrorists”; and
(c)A BA Delta Wing Passenger Aircraft was hijacked in the middle east by “the PLO run by Yassa Arafat and asked permission to land at the Butterworth Airbase”. When the aircraft approached, “we were loaded onto trucks and driven to the end of the runway”. They were handed rifles and told to stand in the truck. The platoon was told, “if we get shot at, the corporal will hand our magazines to us”. They were told to return fire and under no circumstances were they to hit the aircraft. The aircraft approached but did not land.[21]
[21] Exhibit R2, T-Documents, Letter to the Department of Veterans’ Affairs, T16a, page 159.
While stationed in Malaysia, the Veteran claimed he was continuously exposed to aviation fuel fumes from allied military aircraft operating from the Butterworth air base:
I was continuously exposed to constant aviation fuel fumes from the jets constantly taking off and landing day and night and breathing those fumes in could possibly have contributed to my current illness.[22]
[22] Exhibit R2, T-Documents, Letter to the Department of Veterans’ Affairs, T16a, page 159.
The Veteran also claimed he may have been exposed to asbestos at the old Gallipoli Barracks at the Enoggera Army Base in Brisbane. He said that there was “always a lot of dust around the bed frames, on top of the lockers and all of the floors”. He was breathing the dust in every day but was unsure of what was in that dust.[23]
[23] Exhibit R2, T-Documents, Claimant Report of Potential Exposures, T19a, page 177.
In relation to the Veteran’s claimed condition of COPD, the Contracted Medical Adviser (“the CMA”) identified smoking as the cause of this condition.[24]
[24] Exhibit R2, T-Documents, Contracted Medical Adviser Opinion, T15, page 153.
In relation to the Veteran’s claimed condition of IPF, the CMA stated that there are no exact causes for this condition but that “risk factors associated with this condition: cigarette smoking”.[25]
[25] Exhibit R2, T-Documents, Contracted Medical Adviser Opinion, T15, page 154.
A submission before the Veterans’ Review Board, relied upon again in these proceedings, states that: “the crux of the appeal is whether those additional 10 smokes a day on arrival at [Rifle Company Butterworth] can be seen as causal and not temporal”.[26]
[26] Exhibit A1, VRB Case Summary, page 1, paragraph [8].
RAISING A CONNECTION
The Respondent contends that the Veteran’s claimed conditions of COPD and IPF do not arise out of and were not attributable to his defence service. They submit that the evidence does not raise a causal connection between the claimed conditions and the Veteran’s defence service.
Chronic Obstructive Pulmonary Disease
The Respondent accepts that smoking is the identified cause of the Veteran’s claimed condition of COPD. They also accept that the relevant SoP is the Statement of Principles concerning Chronic Obstructive Pulmonary Disease (No. 18 of 2023) (“the Relevant COPD SoP”).
Factor 9(1) of the Relevant COPD SoP provides for the following:
Factor 9(1) having smoked tobacco products:
(a) in an amount of at least 5-pack years before the clinical onset of chronic obstructive disease pulmonary disease; and
(b) if smoking has ceased before the clinical onset of chronic obstructive pulmonary disease, then that onset occurred within 20 years of cessation
The Respondent acknowledges “that the Veteran smoked at least five pack-years of cigarettes before the clinical onset of COPD, and that clinical onset of COPD occurred within 20 years of cessation”. However, the Respondent contends that the evidence does not establish a causal connection between the Veteran’s smoking and his defence service.
The Tribunal accepts that the Veteran served in inherently stressful environments during the period of his Army service, both at home and abroad, between 1972 and 1975. The evidence is that the Veteran’s smoking increased while he was posted to Butterworth in 1973. However, an issue for the Applicant is that the Veteran had commenced smoking prior to joining the Army. Furthermore, the Tribunal notes the Veteran continued smoking for decades after ceasing his Army service until 2005.
On the evidence before it, the Tribunal cannot be satisfied that there was a causal connection between the Veteran’s COPD and his defence service. Accordingly, the Tribunal cannot be satisfied that the Veteran’s death by COPD was defence-caused.
Conclusion: COPD
The Tribunal is not satisfied that the Veteran’s death by COPD was defence-caused.
Fibrosing Interstitial Lung Disease
The Respondent accepts that the Veteran’s cigarette smoking is a risk factor attributable with his claimed condition of IPF. The relevant SoP is the Statement of Principles concerning Fibrosing Interstitial Lung Disease (No. 86 of 2021) (“the Relevant IPF SoP”).
Factor 9(1) of the Relevant IPF SoP provides for the following:
Factor 9(1) having smoked tobacco products:
(a) in an amount of at least 20 pack-years before the clinical onset of fibrosing interstitial lung disease; and
(b) commencing at least 5 years before the clinical onset of fibrosing interstitial lung disease.
The Respondent submits that “there is insufficient evidence for the Tribunal to be reasonably satisfied that Mr Campbell’s smoking habit was causally connected to his VEA service”.
In relation to the Veteran claiming he was exposed to dust whilst stationed at Enoggera Army Barracks, Factors 9(2), 9(3) and 9(4) of the Relevant IPF SoP provide for the following:
Factor 9(2) inhaling respirable asbestos fibres in an enclosed space, at the time material containing asbestos was being applied, removed, cut, drilled, dislodged or disturbed:
(a) for a cumulative period of at least 1,500 hours before the clinical onset of fibrosing interstitial lung disease; and
(b) where the first inhalation of asbestos fibres commenced at least 10 years before the clinical onset of fibrosing interstitial lung disease.
Factor 9(3) inhaling asbestos fibres in an open environment, at the time material containing asbestos was being applied, removed, cut, drilled, dislodged or disturbed:
(a) for a cumulative period of at least 5,000 hours before the clinical onset of fibrosing interstitial lung disease; and
(b) where the first inhalation of asbestos fibres commenced at least 10 years before the clinical onset of fibrosing interstitial lung disease.
Factor 9(4) inhaling beryllium or fumes before the clinical onset of fibrosing interstitial lung disease.
The Respondent submits there is no evidence before the Tribunal “to establish the presence of asbestos fibres, beryllium dust or fumes”.[27] Furthermore, the Respondent submits that the circumstances of the Veteran’s service would not be sufficient to meet the asbestos exposure time requirement provided for in Factors 9(2) and 9(3) of the Relevant IPF SoP.
[27] Exhibit R1, Respondent’s Statement of Facts, Issues, and Contentions, page 13, paragraph [89].
The Tribunal is guarded with the Respondent’s submission regarding asbestos fibres, beryllium dust or fumes. The use of asbestos in buildings and equipment up until the 1980s is a notorious part of Australia’s work, health and safety history. Asbestos was commonly in use in ammunition magazines and areas where fire was a risk. Even today, many military bases have buildings containing asbestos. As for beryllium, it remains commonly used in munitions and technical equipment.
The difficulty for the Applicant is that there is a lack of particularity as to when the Veteran was exposed to asbestos fibres, beryllium dust or fumes. It is possible that the Veteran was exposed to these hazards, but it is unclear exactly where and to what extent this may have happened. Given the scarcity of available information, the evidence before the Tribunal does not support a positive finding that the Veteran was exposed to these hazards within the constraints of Factors 9(3)-(4) of the relevant SoP.
Furthermore, and for similar reasons when considering the Veteran’s death by COPD, the issue remains that the Veteran had commenced smoking prior to joining the Army and continued smoking after his discharge until 2005.
On the evidence before it, the Tribunal cannot be satisfied that there was a causal connection between the Veteran’s FILD and his defence service. Accordingly, the Tribunal cannot be satisfied that the Veteran’s death by FILD was defence-caused.
Conclusion: FILD
The Tribunal is not satisfied that the Veteran’s death by FILD was defence-caused.
Having regard to the whole of the evidence before it and for the reasons given above, the Tribunal is not satisfied that the Veteran’s death by COPD or FILD was defence-caused. Accordingly, the only course available to the Tribunal is to affirm the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 53 paragraphs are a true copy of the reasons for the decision herein of Senior Member George and Member Ormston
.............................[sgnd]..................................
Date of Decision: 1 August 2023
Date of Hearing: 12 July 2023 Representation for the Applicant: Self-represented Solicitor for the Respondent: Mr Anthony Gardner
Minter EllisonANNEXURE A – Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Respondent’s Statement of Facts, Issues and Contentions
R
20/3/2023
20/3/2023
12/7/2023
R2
T-Documents
R
Various
12/1/2023
12/7/2023
A1
VRB Case Summary
A
1/8/2023
1/12/2022
12/7/2023
0
3
0