Wallace and Repatriation Commission (Veterans' entitlements)
[2017] AATA 926
•23 June 2017
Wallace and Repatriation Commission (Veterans' entitlements) [2017] AATA 926 (23 June 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/4069
Re:Stewart Wallace
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Date:23 June 2017
Place:Brisbane
The decision under review is affirmed.
..................................[sgd].....................................
Senior Member J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – claimed condition of Chronic Obstructive Pulmonary Disease – question of whether increased smoking levels and quantity relevantly related to eligible defence-service - Statement of Principles – where condition of Chronic Obstructive Pulmonary Disease not connected to eligible defence-service - decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 68, 70, 120, 120B
CASES
Arnold and Military Rehabilitation and Compensation Commission [2010] AATA 660
Bryant and Military Rehabilitation and Compensation Commission [2012] AATA 186
Bushell v Repatriation Commission (1992) 175 CLR 408
Cooke v Repatriation Commission (1997) 45 ALD 205
Cooper and Military Rehabilitation and Compensation Commission [2017] AATA 429
Crawford and Repatriation Commission [2004] AATA 1064
Lane and Repatriation Commission [2005] AATA 566
Miller v Minister of Pensions [1947] 2 All ER 372
Re Everett and Repatriation Commission (1991) 23 ALD 529
Re Keenan and Repatriation Commission (1990) 21 ALD 289
Renton and Repatriation Commission [2003] AATA 135
Repatriation Commission v Edwards [1993] FCA 434Repatriation Commission v Hawkins (1993) 45 FCR 205
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Warren [2007] FCA 866; 95 ALD 606
Rohov and Military Rehabilitation and Compensation Commission [2011] AATA 908
Roncevich v Repatriation Commission (2005) 222 CLR 115
Samarasekera and Military Rehabilitation and Compensation Commission [2007] AATA 1726
Smith v Repatriation Commission (2014) 142 ALD 410
Tuite and Repatriation Commission [1992] AATA 672SECONDARY MATERIALS
Statement of Principles No. 38 of 2014
REASONS FOR DECISION
Senior Member J Sosso
23 June 2017
INTRODUCTION
On 14 August 2015 Mr Stewart Wallace (the veteran) lodged a claim for the disability pension with the Repatriation Commission (the Commission) for hearing loss, tinnitus and chronic obstructive pulmonary disease (COPD).
On 23 October 2015 the Commission accepted the veteran’s hearing loss and tinnitus conditions as being service related for the purposes of the Veterans’ Entitlements Act 1986 (the Act). The Commission determined that the claimed COPD was not service related and found that the Applicant was entitled to 70% of the disability pension at the General Rate.
The veteran sought a review of the decision that the claimed COPD was not service‑related with the Veterans’ Review Board.
On 18 July 2016 the Veterans’ Review Board affirmed the decision of the Commission – Exhibit 1 T2 pp. 11 – 16.
On 1 August 2016 the veteran lodged an Application for Review with this Tribunal. The reasons advanced for seeking a review were as follows (Exhibit 1 T2 p.4):
“The failure of the Board to understand the unique stressors of peace-time service and the effects on an individual’s smoking habit”
A hearing was convened on 10 May 2017. The veteran was represented by Mr Anthony Hornby, Senior Advocate with the Veterans’ Support Centre. The Commission was represented by Ms Rachel Blake of Moray & Agnew, Lawyers.
The veteran attended the hearing, gave evidence and was cross-examined. No other witnesses were called.
The Tribunal was presented with usual form of documents commonly known as “T” documents which were admitted into evidence and marked as Exhibit 1. However, before the hearing the Commission provided to the veteran and the Tribunal an additional very large folio of documents which comprised many hundreds of pages. The veteran sought, and was granted, an adjournment so that he could peruse those documents.
FACTS
The veteran was born in 1952 and at the date of the hearing was 64 years of age. He attended school until the completion of Grade 10 and then entered the workforce. He married in July 1974.
It is not contested that the veteran was a member of the Australian Army between 18 February 1975 and 26 November 1980 and this period, being in excess of three years effective full-time service, constituted defence service as prescribed by s 68 of the Act.
During his time with the Australian Army the veteran was employed as an Infantryman and a Pay Clerk – Exhibit 1 T30 p. 137.
In his claim form the veteran listed as disability 3 “lung problems” – Exhibit 1 T8 p.61. He stated that the signs and symptoms of this disability were:
“Shortness of breath
Feeling tired
Constant pain in the chest 24/7
Wheezing all the time”.
In response to question how the veteran believed the claimed disability was service caused etc, he responded:
“Due to my smoking habit which started in service and because of service.”
The veteran enlisted when he was 22 years of age. In his Entry Medical History Questionnaire, he answered in the affirmative to the question if he smoked tobacco – Exhibit 1 T33 p.149.
At the hearing the veteran testified that he smoked his first cigarette at around the age of 16 or 17, but would only smoke three or four cigarettes a week. He stated that he left school at around the age of 16 and starting working in a printing enterprise. The veteran stated that he was active in sport and did not have the money to afford a smoking habit. He further testified that he did not commence “full time” smoking until after he enlisted.
The veteran also testified that his mother didn’t smoke and neither did his brothers or sisters. When he did smoke tobacco, it was usually when he was at a hotel. The veteran married before he enlisted and his wife was also a non-smoker who disliked smoking.
The veteran made a statement on 14 March 2016 in which he said (Exhibit 1 T31 p. 144):
“…from my late teens onwards... I dabbled in smoking.
I was not a regular smoker until after enlistment in the Australian Army.
Smoking prior to service was ad hock [sic] at best. I was experimenting, my income stream was at best poor, my friends never forced the issue unlike it was in the Army. I felt no need to smoke regular [sic] prior to service…
Further my mum and dad frowned upon me smoking. Smoking was not a habit until well into my enlistment.”
In his Claimant Report – Smoking dated 15 August 2015, in response to the question why did the veteran commence smoking on a regular basis, the following answer was given (Exhibit 1 T7 p. 49):
“Peer group pressure, everyone was surprised at my age that I wasn’t already a smoker. I felt I would of [sic] been left out if I did not smoke. Work pressure, wanting to prove myself and be a team player. Stressor of Army life and living on camp.”
In the same document the veteran estimated he was smoking 20 - 30 cigarettes per day in 1978 and 45 - 50 by 1980 – Exhibit 1 T7 p. 49. The reason given for his increased smoking by 1978 was habit and work stress having to meet deadlines and accuracy. The reason given for the increase in smoking by 1980 was promotion and posting and doing higher duties.
The veteran testified that he found service life “scary”, and that when he was first sent to Kapooka after enlisting the Instructors were screaming all the time, that there were strict dress and drill standards and that pressure was placed on the newly enlisted servicemen all the time.
During the “smoko” breaks, 95% of the servicemen smoked and the veteran was offered a cigarette every day. It was part of the mateship culture to smoke at the time, and the veteran testified that if you didn’t smoke the general feeling was “what’s wrong with you”. The veteran testified that smoking helped relieve the pressure of camp life and soon after going to Kapooka he became a regular smoker.
The veteran also testified that he was the second oldest in his platoon.
In the reasons for decision of the Veterans’ Review Board, the following information is outlined (Exhibit 1 T2 pp. 14 – 15):
·“When he enlisted he entrained at South Brisbane Railway Station for the journey to Sydney and then on to Kapooka to commence recruit training. He was with a number of other new enlistees, a lot of whom were smoking and drinking alcohol on the train. He joined in with his new companions and probably had a couple of cigarettes on the train.
·He found there was a lot of pressure associated with the training at Kapooka but they were given regular smoke breaks. He had a couple of smokes provided by other people at first and at some stage during recruit training he commenced buying cigarettes himself.
·He says that 99% of the recruits smoked and that he joined in to be part of the team and to fit in.
·He gradually increased during the three months he was at Kapooka and also for the following three months when he was posted to Infantry Corps training at Singleton which involved more pressure. He thinks he was probably smoking about 10-15 a day by that time.
·He was then posted to the Infantry’s 2nd/4th Battalion at Townsville and almost immediately was employed in the Pay Office. After a short time in that job he was probably smoking a packet, about 20– 25 cigarettes a day. There were a lot of people coming into the Pay Office and they were all smoking. There was a lot of pressure in the Office as everything was done manually. He had to complete PVAs (Pay Variation Authorities), make entries into soldier’s Pay Books and complete Pay Sheets. He also had to assist soldiers with travel claims and allowances, like TRA (Temporary Rental Allowance).
·He injured his right shoulder on duty in 1976 and he thinks he increased to about 30 cigarettes per day about that time. He later increased to about 45- 50 per day. This was due to pressure of work.
·After working in the Pay Office in Townsville, he remained employed as a pay clerk for the remainder of his service.
·In 1976 after injuring his shoulder he was sent to the 1st Military Hospital in Brisbane for rehabilitation. When he wasn’t doing ‘rehab’ for his shoulder, he was tasked to help out in the Pay Office. This later became a permanent job for him in that he was posted from Enoggera as a corporal and was later acting in the sergeant position running the Pay Office at the hospital. He finished his service in that position.
·Asked why he succumbed to peer pressure in commencing to smoke, given that he was aged 22 at the time and a lot of his peers would have been only 17 or 18, he replied ‘I don’t know’. He then said that there were quite a few who were older than he was.
·Asked if there were any other problems during service which may have influenced his smoking habit, he said ‘Just work pressure’.
·He acknowledged that his increase in smoking also developed as part of the natural progression of his smoking habit.”
The veteran provided additional information about the stresses he was placed under during his testimony.
One cause of stress was his domestic situation. The material presented suggests that the veteran’s then wife was not happy at times with army life. For example, in a Progress Report dated 9 August 1975 (Exhibit 5), the Platoon Commander observed:
“Members wife is here in Singleton and has indicated her dislike of ‘hubby’ being away weekends etc.”
This tension increased after being posted to Townsville and the veteran’s wife became intimate with another soldier. The veteran became aware of this and his marriage was under extreme pressure. This negatively impacted on his service performance and on 10 February 1977 he requested reposting back to Brisbane where both he and his wife had family. During his testimony, the veteran said that during this time he was under “extreme pressure” and that his cigarette smoking increased because of his dire domestic situation, but not significantly. The veteran also testified that his marriage never recovered but in the period 1977 – 1980 it “settled down”.
Lieutenant Colonel Schlyder stated (Exhibit 2 p. 102) in a Staff-in-Confidence Memorandum of 10 February 1977, in response to the veteran’s request for reposting, that the veteran:
“has been a trustworthy and reliable pay clerk, until his trouble began about three weeks ago. Unfortunately, it is not possible to remove the source of their trouble from the Townsville area at this stage.”
The veteran was reposted to Brisbane and the material before the Tribunal confirms that he was a diligent and well regarded serviceman. In a memorandum dated 10 April 1978 Lieutenant Colonel Jeffrey said (Exhibit 2 p.81):
“This soldier is well orientated to military life. He is a quiet, responsible soldier working well without supervision. He has assisted in Unit Pay and in the absence of UPR has performed that role well and conscientiously. He demonstrates the ability to be good, reliable pay clerk.”
Other contemporary documentation, nonetheless, suggests that the veteran’s domestic situation continued to be difficult and was impacting negatively on his army duties. When the veteran was undertaking a trade course in accounting, bookkeeping and record keeping in August 1979 he failed to complete the course despite achieving above average results for the first two tasks he was trade tested for. The supervising officer in a Certificate of Trade Test form dated 27 August 1979 noted (Exhibit 2 p. 153):
“LCPL Wallace was removed from the course on day 10, without being trade tested in the remaining three tasks, due to domestic reasons.”
The medical records disclose that the veteran had an accident in circa April 1976 when on a field exercise. He tripped over a log and fell on his shoulder, fracturing it – Exhibit 1 T5 p. 24, T33 p. 147. Subsequently he had surgical intervention with the removal of the medial end right clavicle resulting in some residual limitation of movement and weakness in the right shoulder – Exhibit 2 p. 115.
The medical reports at that time state that the veteran was smoking 20 cigarettes per day – Exhibit 1 T33 p. 147.
On 16 November 1978 the veteran was admitted to 1 Military Hospital with two complaints:
(a)Two episodes of haematemesis in the previous 24 hours, with blood present in the first vomit; and
(b)A two-week history of generalised dull abdominal pain which woke him at night.
The In Patient Summary states that the veteran was smoking at that stage 50 cigarettes a day as well as drinking 6 cans of beer each day. He was described as being “Extremely tense, hyperactive personality”.
No significant abnormalities were discovered and he was discharged the next day. He was placed on a “soft diet” for a week, prescribed Mylanta and pain tablets and it was recommended: “Read the ‘Riot Act’ regarding his habits regarding tobacco and alcohol” – Exhibit 2 p. 120.
On 17 December 1979 and 26 March 1980 the veteran applied for consent to undertake civilian employment during off-duty hours to drive trotting horses on Wednesday, Friday, Saturday and Sunday nights at Rocklea, Southport, Redcliffe and Albion Park – Exhibit 2 pp. 204 - 210. Approval was granted.
On 8 September 1980 the veteran applied for an early discharge from the Army. In his application, he stated (Exhibit 2 p. 189) that he was suffering from “financial difficulties”. He also said that he had been offered civilian employment which due to his “financial state my payment of monies owing to me will greatly assist in reducing this difficulty”.
His application was supported by his commanding officer, Major Wand who, in a memorandum dated 11 September 1980 (Exhibit 2 p. 188) said that the veteran’s unit:
“is aware of the member’s financial situation and early discharge will help overcome many of his problems”
The veteran had been offered employment at horse stables which involved the payment of a wage, a house rent free, extra stables for his use for the training of other horses and a percentage of winning proceedings as a trotting horse driver. He had been offered civilian employment which would not be held over until the date of his formal discharge. Permission was granted for the veteran to discharge early.
In the veteran’s exit Medical History Questionnaire dated 17 November 1980 it was noted that he was then smoking 20 cigarettes each day – Exhibit 1 T33 p.148.
The veteran ceased smoking in the period 2010 – 2011. Certainly, by 16 May 2011 medical records record that he had ceased smoking – Exhibit 3.
The veteran was examined by Dr Graeme Brown in September 2015. Dr Brown diagnosed the veteran as suffering from COPD and noted symptoms of “SOB daily walking on flat ground, intermittent productive cough” – Exhibit 1 T16 p. 79.
Dr Brown in a further report dated 29 September 2015, which measured effort tolerance, noted that the veteran has the following symptoms which limited his effort tolerance (Exhibit 1 T18 p. 81):
“Breathlessness, R shoulder pain, wheeze”.
DECISION OF THE VETERANS’ REVIEW BOARD
The Veterans’ Review Board affirmed the original decision of the Commission that the veteran’s COPD was not related to service. The reasons provided by the Commission for reaching this conclusion are set out below (Exhibit 1 T2 pp. 15-16):
“16. In determining the application, the Board is required to be satisfied as to the appropriate diagnosis to answer the claim. Based on the Pulmonary Function Report of 11 August 2015 (f.29) and the diagnosis by GP Dr Graeme Brown included in the claim (f.17), the Board is reasonably satisfied the applicant suffers chronic obstructive pulmonary disease.
17. The Statement of Principles is Instrument 38 of 2014 as amended by Number 129 of 2015. Given the contention raised in relation to smoking, the relevant factor is at Clause 6 (a):
“smoking at least five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic obstructive pulmonary disease, and where the smoking has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation.
18. It is an essential requirement in satisfying the factor that there is a direct causal relationship between the applicant’s service and commencement of a smoking habit. A temporal relationship can be explained as the applicant’s service being the setting in which he commenced to smoke but not the direct cause of him commencing to smoke.
19. The Board considered the evidence in relation to smoking, including the smoking questionnaire, the applicant’s evidence to the hearing, the material submitted by the advocate and his submissions.
20. As to the Commission’s Guideline Paper CM 5030, the Board could not identify anything in that document which requires the Board to find in the applicant’s favour, as appears to be the submission put to the Board. A causal relationship is required. The circumstances described by the applicant in his smoking questionnaire and in evidence are not out of the ordinary in a service context. Although the applicant claims that various aspects of his service involved a good deal of pressure and stress, when viewed objectively, in the Board’s opinion, those circumstances are not exceptional and do not constitute a direct cause for the applicant commencing to smoke cigarettes on a regularly (sic) basis.
21. The Board examined all the remaining factors in the Statement of Principles but could identify no material to raise or satisfy any factor.
22. For the reasons given above, the Board finds that none of the factors set out in the Statement of Principles is raised by the evidence in this case. The Board is therefore reasonably satisfied that the material before it does not raise a connection between the applicant’s COPD and the relevant service as required by the Act. In these circumstances, the Board is required to affirm the decision under review.”
THE LAW
It has long been recognised that the various pieces of veterans’ entitlements legislation are beneficial in nature and should receive, where possible, a liberal interpretation – Smith v Repatriation Commission (2014) 142 ALD 410 at [14] per Rares J.
The veteran’s entitlements are governed by Part IV of the Act.
Part IV deals, inter alia, with those persons who rendered peacetime service but also have “defence service” – s 68(1). In this context “defence service” refers to continuous full-time service on or after 7 December 1972 until 7 April 1994. Service personnel who fall within this category have the special benefit of dual entitlements under both Commonwealth superannuation and repatriation legislation.
Pursuant to s 70, pension is payable, inter alia, for a disease which is due to service as a member of the Defence Force. A disease is defence caused if it is due to an occurrence or if it arose out of or was attributable to or was aggravated by defence service – s70(4) and (5).
These provisions were carefully considered by the High Court in Roncevich v Repatriation Commission (2005) 222 CLR 115.
The High Court gave a broad interpretation to the requirement that a disease arose out of or was attributable to service. McHugh, Gummow, Callinan and Heydon JJ said (126):
“The use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without qualifications conveyed by such terms as sole, dominant, direct or proximate.”
Earlier, their Honours also made a further observation which is of relevance to this matter (125):
“…As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, 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 in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely temporal one.”
The last sentence of their Honours observation is, in this matter, critical.
The standard of proof for entitlements governed by Part IV is “reasonable satisfaction”- s 120(4). This term has generally be expressed as involving the “preponderance of probability” or the “preponderance of evidence” – see, for example, Repatriation Commission v Smith (1987) 15 FCR 327.
The classic statement in this regard is that of Denning J in Miller v Minister of Pensions [1947] 2 All ER 372. Subject to the issue of onus of proof (or the absence thereof) which is discussed below, the statement of Denning J gives a good explanation of the practical operation of reasonable satisfaction or the preponderance of probability. His Honour said (at 374):
“In cases falling under art. 4(2) and art. 4(4) (which are generally cases where the man was fit on his discharge, but incapacitated later by a disease) there is no compelling presumption in his favour, and the case must be decided according to the preponderance of probability. If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not.”
Subsection 120(6) makes it clear that nothing in the Act imposes on a claimant or any other party any onus of proving any matter that is, or might be, relevant to the determination of a claim or application. This operation of this subsection was explained by Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 as follows (424‑425):
“Section 120 governed the review by the A.A.T. of the decision of the Board on Mr. Bushell’s claim.
This section is not concerned with an onus of proof. Sub-section (6) says so expressly. It is concerned with a standard of satisfaction to which the administrative decision-maker must attain in finding the relevant facts, and it directs the decision-maker to act on the material before the Commission, the Board or the A.A.T., as the case may be. Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. Nor does s. 120 create any presumption which has to be dispelled by the material before the decision-maker…”
In applying s 120(4) to determine a claim, the Commission is to be reasonably satisfied that a disease contracted by a person is defence-caused only if (and subject to s 120B(4)):
(a)The material before the Commission raises a connection between the disease and some particular service rendered by the person; and
(b)There is in force a Statement of Principles determined by the Repatriation Medical Authority that upholds the contention that the disease of the person is, on the balance of probabilities, connected with that service – s 120B(3).
In this matter it is not contested that there is a relevant SoP, namely No 38 of 2014 (as amended), Chronic Obstructive Pulmonary Disease.
CONSIDERATION
Introduction
The Commission submits (RSFIC p.6) that the issues that arise in this matter are as follows:
(a)Does the veteran suffer from COPD?;
(b)If he does, what is the relevant SoP?;
(c)Is there a connection between the claimed condition and the circumstances of the service rendered by the veteran?; and
(d)Further to this, does the veteran, on the balance of probabilities, satisfy the criteria identified in the SoP relevant to his claimed condition such as to support a finding of a connection between the claimed condition and his service for the purposes of the Act?
This is a helpful outline of the issues that need to be determined, subject to a preliminary comment.
There is an anterior question, namely whether the veteran rendered eligible defence service. As previously explained, this is not contested.
Does the veteran suffer from COPD?
The threshold issue for the Tribunal is whether the veteran suffers from the disease upon which his claim is based. Section 120 assumes the existence of the disease, and “the question whether it is suffered by the veteran is separate from the following questions as to causation” per Kiefel J in Repatriation Commission v Warren [2007] FCA 866; 95 ALD 606 at [22] / 613.
In determining this threshold question, there is no requirement for the Tribunal to have regard to the terms of any relevant SoP. The SoP is not to be used for diagnostic purposes. This was explained by Kiefel J in Warren as follows (at [25] / 614):
“The anterior, or threshold, question for the tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision in the VEA which expressly requires the tribunal to have regard to the SoP criteria in determining this question. The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion.”
The Commission accepts that the medical evidence, particularly the report of Dr Brown previously outlined and a pulmonary function report of 11 August 2015 (Exhibit 1 T6 pp. 28-29) support a finding that the veteran suffers from COPD – RSFIC p.6.
Having considered the evidence before the Tribunal, I find that the veteran suffers from COPD.
Relevant SoP
It is not contested (RSFIC p. 7) that the relevant SoP is Instrument No 38 of 2014 (as amended).
The factor(s) that must exist before it can be said, on the balance of probabilities, COPD is connected with the circumstances of the veteran’s service are contained in clause 6.
The relevant factor in clause 6 is paragraph (a) which provides:
“(a) smoking at least five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic obstructive pulmonary disease, and where smoking has ceased, the clinical onset of chronic pulmonary disease has ceased within 20 years of cessation.”
The term “pack-years of cigarettes, or the equivalent thereof in other tobacco products” is defined in clause 9 as follows:
“a calculation of consumption where one pack-year of cigarettes equals twenty tailor-made cigarettes per day for a period of one calendar year, or 7 300 cigarettes. One tailor-made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack-year of tailor-made cigarettes equates to 7.3 kilograms of smoking tobacco by weight. Tobacco products mean cigarettes, pipe tobacco or cigars, smoked alone or in any combination.”
Connection between the disease and the defence-service
The veteran submits that his smoking habit was defence-caused. In his statement of
26 October 2016 he recounted how he started smoking on a regular basis almost immediately after enlistment. He stated that “being in the Army was about being in a team” and that he “wanted to be part of the team, I wanted to fit in.” He went on to say that being in the Army was not like a normal 9 to 5 job, but was a way of life he had never experienced before. He also described the pressure of always having to be fit and the verbal bullying of the drill instructors. He found that smoking was a way to relieve the stress he was placed under – Exhibit 4 p.1.
Work pressure was another reason given for the veteran’s smoking habit. He described being a pay clerk as “an exacting job with time critical deadlines” and that he was working in a “smoke filled office” – Exhibit 4 p. 2.
Another theme in his statement, his oral evidence and the submissions of his advocate, was the experience of camp life. The veteran stated (Exhibit 4 p. 2):
“Living on camp for the first six months with little weekend leave there was no escape from the Army lifestyle and the peer group pressure.”
Subsection 70(5) of the Act relevantly provides that a disease contracted by a member of the Forces shall be taken to be defence-caused if the disease arose out of, or was attributable to, any defence service of the member.
As previously highlighted, the High Court in Roncevich gave a broad interpretation to this subsection, noting that the things a person does in the course of serving as a soldier are not limited to obeying lawful commands, direction and orders. The majority found that a causal link or connection alone was capable of satisfying the test of attributability without any qualifications conveyed by terms such as sole, dominant, direct or proximate.
However, their Honours emphasised one key qualification to this otherwise broad and liberal interpretation. McHugh, Gummow, Callinan and Heydon JJ emphasised (at 125) that:
“the connection must however be a causal and not merely temporal one.”
Guidance is provided by the Full Federal Court decision of Repatriation Commission v Tuite (1993) 39 FCR 540.
In that case the veteran sought a disability pension under the Act for conditions resulting from a smoking habit which he claimed resulted from service. The veteran enlisted when he was 24 years of age and a non-smoker. By the conclusion of his 14 days in army camp he was smoking 20 cigarettes each day. The veteran claimed that the circumstances of camp life caused him to commence smoking together with the fact that cigarettes were cheap, other people were smoking and he felt a degree of apprehension about his future in the Army.
From the outline of facts given by the Tribunal in Tuite and Repatriation Commission [1992] AATA 672, it would appear that the veteran in this matter served in the CMF for a few months in 1940.
Burchett and Einfeld JJ made the following observations (544-545):
“The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of the period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was ‘something within the applicant’s military service which has caused him to start smoking’. It accepted his evidence that he had not smoked before, ‘and that it was the circumstances whilst he was in camp that caused him to start to smoke’. The Tribunal added: ‘Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military.’ The Tribunal pointed out that the respondent ‘was in a milieu totally different to that which he had experienced before his call-up’. (It appears he was actually a volunteer.)
We are unable to find anything suggestive of error in this reasoning…The boredom of life in camp clearly emerges from the respondent’s account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction.”
Davies J also reached the same conclusion and said (541-542):
“eligible war service must contribute in a causal way to the injury or disease…
Eligible war service encompasses not only active service but all the incidents of service, such as life in camp…if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates’…
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
There have been a number of subsequent Federal Court and Tribunal decisions where Tuite has been quoted and followed. During the course of these proceedings the Tribunal’s attention was drawn to Lane and Repatriation Commission [2005] AATA 566.
The veteran in that matter served in the RAN from 1958 until 1980. He made a claim for entitlements in respect of chronic bronchitis and emphysema. This condition was brought about by a smoking habit which it was claimed commenced upon enlistment. During the veteran’s extensive service he served on HMAS Melbourne and was on duty when the fatal collision with HMAS Voyager occurred. The veteran stated: “Due to the stress of this incident and other personal factors my smoking started to increase heavily” (at para 15).
The veteran also claimed that when he was promoted to Regulating Chief Petty Officer the stress of that senior position an added responsibilities caused him to increase his smoking (para 24).
The Tribunal, having carefully considered the submissions of both the veteran and the Commission found in favour of the veteran, and said (para 52):
“the Tribunal is satisfied that, at a minimum, the self-imposed stress management technique of smoking of the Applicant arose out of or was attributable to defence service. The smoking arose out of defence service in that smoking was the Applicant’s method of coping with the stresses and demands of his naval responsibilities. Alternatively, the Applicant’s smoking was attributable to his defence service in that his day-to-day responsibilities and tasks were the cause or reason for which he began and increased his level of smoking as his naval service went on.”
The experiences of the veteran in Lane are very different to the factual matrix before the Tribunal in this matter.
The veteran in Lane was only 17 years old when he enlisted and had never smoked cigarettes before (paras 15 and 29).
After enlisting and being posted to HMAS ANZAC in 1959 his smoking increased due to the availability of duty free cigarettes and tobacco. This situation was exacerbated when, in 1962, he was posted to the United Kingdom as part of a standby crew for the minesweeper HMAS Curlew. Again, duty free tobacco was available on the Royal Navy ships which he availed himself of (para 15).
As previously mentioned, he was on board HMAS Melbourne when the tragic collision with the HMAS Voyager occurred.
Throughout the 1960s and 1970s the veteran took on increasingly senior roles which were stressful and demanding. The roles he performed, such as Chief Radio Supervisor, carried with them great responsibility with potentially critical consequences (para 15).
In short, Lane is an example of a very young man separated from his family and placed in an alien and very stressful environment where smoking was condoned, encouraged and subsidised. Further, he served in potentially hazardous situations culminating in the traumatic fatal collision of the MELBOURNE and VOYAGER. Moreover, he was performing senior duties in operational environments.
As Davies J said in Tuite, the question whether the material before the Tribunal is such that the decision-maker is reasonably satisfied that it raises a connection between the disease of the veteran and the defence service he rendered, is a question of fact.
I am not reasonably satisfied that such a causal connection exists from the material presented. In forming this view I make the following factual findings:
The veteran:
(a)was born in Brisbane in 1952;
(b)enlisted in February 1975 when he was 22 years of age;
(c)left school and joined the workforce after completing Grade 10;
(d)commenced smoking at age 16-17, though not regularly;
(e)was in gainful employment prior to enlisting, including as a printer for 3 years, a mechanic and as a labourer;
(f)was married prior to enlisting;
(g)commenced smoking on a regular basis after enlisting;
(h)increased his levels of tobacco consumption during his years of service;
(i)in February 1977 sought transfer from Townsville to Brisbane due to his then wife’s infidelity;
(j)was engaged during almost all of his service life in payroll and clerical duties;
(k)sought early discharge from the Army because he was suffering financial difficulties and had been offered civilian employment which could not be held over until the date of his formal discharge in February 1981;
(l)continued smoking tobacco after his discharge;
(m)ceased smoking tobacco circa 2010-2011.
When the veteran enlisted he had been in the workforce for approximately seven years. He had already started smoking and was a married man. He was born in Brisbane and grew up in the city. He was not an impressionable young man with no world life experiences. Indeed, when he enlisted he would have been older than most of the other young men who undertook training with him.
In 1975 Australia was not at war, nor is there any suggestion in the evidence presented that the veteran had an apprehensions that he would have been sent for training overseas preparatory for any combat or peacekeeping duties.
The material before the Tribunal suggests that the veteran was “well orientated to military life” (Exhibit 2 p. 81). His various commanding officers reported that he was “trustworthy and reliable” and gave “good service” (Exhibit 2 p. 102). His aptitude for learning new tasks was above average and was regarded as having “excellent potential” (Exhibit 2 p. 134).
There is no material before the Tribunal suggesting that he was bullied or intimidated by army life or that apart from his marriage and financial problems he was struggling with the performance of his duties. Indeed one commanding officer noted that he was “a quiet, responsible soldier working well without supervision” – Exhibit 2 p. 81.
The duties that the veteran performed while involving skill and some stress, were not of their nature dangerous or inherently stressful. The veteran was performing clerical duties of a type not dissimilar to most pay clerks in large public and private sector organisations.
These are points of difference with both Tuite and Lane. When the veteran in the first case was at camp it was in 1940 when Australia was in the midst of the Second World War. AIF servicemen were then engaged in the battles to liberate the Italian colony of Libya and both Australian airmen and navy personnel were engaged in operational activities around the globe. Although that veteran was not in the Army, he was in the Militia, and that Militia subsequently saw action in New Guinea in 1942 during the Kokoda Trail battles. The veteran in the second matter, was traumatised by the Melbourne and Voyager collision, was constantly offered duty free cigarettes and was engaged in duties that involved the exercise of skill under great pressure.
A further point of difference is that when the veterans in Tuite and Lane began smoking, the dangers of cigarette consumption were less known, and, in the case of Tuite in 1940, smoking was a habit engaged in by most men and was actively encouraged. By 1958 when Mr Lane began smoking, not that much had changed. That was not the case in 1975 when the veteran in this matter enlisted. Although cigarette smoking was widespread, the health risks of cigarette smoking were then known and Governments at both a State and Federal level were beginning to take steps to reduce the level of tobacco consumption.
A further issue that is clear from the evidence is that from the time of the veteran’s enlistment he was experiencing domestic stress. This culminated in his wife having an affair with a fellow soldier stationed in Townsville and caused the veteran considerable stress and grief. Despite moving to Brisbane so that he and his wife could be closer to their respective families, the veteran testified that his marriage was never the same.
Further, the evidence suggests that by 1980 the veteran was in financial strife. The nature and cause of that strife is not clear, but it is clear that the veteran was desperate to leave the Army and take up alternative employment as a way of dealing with the financial predicament he was in.
At the hearing Mr. Hornby submitted that the very nature of camp life and the Army culture of the time provided the necessary causal connection.
If the Tribunal accepted this contention then any serviceman of that era who commenced regular smoking after enlistment would meet the statutory criteria. This would entail the repudiation of a judicial line of authority going back many decades that requires that camp and army life be established to be a contributing cause of the onset of regular smoking and not merely the setting in which it occurred. In other words the fact that the veteran enlisted and started smoking is a temporal not a causal connection. The real question to be answered from the material is whether there was something about the veteran’s camp life and army life that was a contributing cause for him smoking in earnest.
One Tribunal determination which provides some guidance is Samarasekera and Military Rehabilitation and Compensation Commission [2007] AATA 1726.
The veteran in that matter enlisted in the Army in 1976 at the age of 25 and served until 2005 when he retired at the rank of Lieutenant Colonel. Prior to enlisting he smoked, averaging 10 cigarettes per week between 1971 and 1975. The veteran contended that when he enlisted he was required to attend a 9-day Young Officers’ course in Victoria where he had to live on base and was under a great deal of stress. He found the course work difficult and as smoking was the norm joined in with the others so that he “fitted in”. He also testified that smoking relieved his stress when he obtained poor grades. The veteran continued to feel under-trained and inexperienced and said he had difficulty asserting command over his troops. The veteran testified that he blamed his smoking habit on a combination of stress to perform, boredom and social pressure to smoke.
In rejecting the veteran’s claim, Senior Member Carstairs said:
“26 I was satisfied that the facts in Mr Samarasekera’s case were very different from those in Wall. Mr Wall was considerably younger than Mr Samarasekera at the time of joining up. Mr Wall was 19, whereas Mr Samarasekera was almost 26 years of age and Mr Wall was not a smoker, whereas Mr Samarasekera was. One could reasonably expect a 19 year old to be more impressionable. Mr Wall was placed in rather different circumstances in the 1950s as a young National Serviceman taken away from his normal life – all matters to which Senior Member Allen specifically referred…
28 I agree with Dr Habersberger that there was no connection between Mr Samarasekera’s service in the Army and smoking. Dr Habersberger pointed out that the incidence of smoking in the Army was much the same as in the general population and it is relevant, as he observed, that the Army was not providing cigarettes to servicemen.
29 I was satisfied on the facts here that Mr Samarasekera’s Army service provided only the setting in which he increased his smoking levels. This was a matter of personal choice and there was no characteristic or feature of his employment in the Army or the duties (ancillary or otherwise) required of him, nor anything in the circumstances in which Mr Samarasekera was undertaking those duties that contributed to his smoking.”
There is no doubt that defence service life is quite different from civilian life. It is, in itself, a separate world with different rules of behaviour, modes of expression, expectations, duties and stressors. To simply equate defence service life with civilian life would be incorrect and potentially unfair to the servicemen and servicewomen in uniform performing unique duties for the greater public good. Care must therefore be exercised when a respondent to a veteran’s claim for an entitlement or compensation contends that the onset of a potentially health threatening habit such as alcohol consumption, smoking or salt ingestion after enlistment was simply a matter of personal choice. While a temporal connection is insufficient to found a successful claim for entitlements or compensation, the peculiar features of service life need to be recognised and accorded due weight.
A perusal of the many Tribunal determinations and Federal Court decisions where a claim for entitlements or compensation has been made out on the basis of a causal connection between smoking and service, illuminate some key features:
(a)cigarette smoking was at the relevant time actively encouraged by the Army, including the provision of free or subsidised tobacco – Re Keenan and Repatriation Commission (1990) 21 ALD 289, Re Everett and Repatriation Commission (1991) 23 ALD 529, Repatriation Commission v Tuite (1993) 39 FCR 540, Cooke v Repatriation Commission (1997) 45 ALD 205;
(b)cigarette smoking was, at the relevant time, socially acceptable behaviour and not regarded as a health risk – Re Everett and Repatriation Commission (1991) 23 ALD 529;
(c)the veteran on enlistment was extremely young and impressionable (15 years of age) - Cooper and Military Rehabilitation and Compensation Commission [2017] AATA 429, Bryant and Military Rehabilitation and Compensation Commission [2012] AATA 186 (17 years of age);
(d)the veteran was socially inexperienced and overwhelmed by service life; the veteran “was in a milieu totally different to that which he had experienced before his call-up” – Repatriation Commission v Tuite (1993) 39 FCR 540;
(e)peer group pressure, where combined with other factors such as youth, ready availability of cigarettes, boredom of camp life etc that render a person more likely to succumb to that pressure – Repatriation Commission v Tuite (1993) 39 FCR 540, Cooke v Repatriation Commission (1997) 45 ALD 205, Arnold and Military Rehabilitation and Compensation Commission [2010] AATA 660;
(f)camp life itself can be sufficient, where, for example, the veteran was in civilian life engaged in active enterprise (here an eminent tennis coach) and the boredom of camp life over a prolonged period results in a recourse to smoking to relieve the monotony – Repatriation Commission v Edwards [1993] FCA 434;
(g)the veteran did not smoke before enlisting and commenced smoking almost immediately thereafter –Repatriation Commission v Tuite (1993) 39 FCR 540, Arnold and Military Rehabilitation and Compensation Commission [2010] AATA 660, Rohov and Military Rehabilitation and Compensation Commission [2011] AATA 908;
(h)the veteran commenced smoking when exposed to potentially hazardous service – Repatriation Commission v Hawkins (1993) 45 FCR 205. In this case the veteran enlisted in the RAN in 1959 but did not begin to smoke until 1969 when he was posted to HMAS Sydney when it served in waters off South Vietnam in hazardous conditions;
(i)the veteran recommenced regular smoking when posted to operational war conditions – Crawford and Repatriation Commission [2004] AATA 1064;
(j)the veteran was subjected to a stressful service related event that either resulted in the commencement of smoking or an increase in a smoking habit – Lane and Repatriation Commission [2005] AATA 566;
(k)the particular service related duties of the veteran were inherently stressful and the stress resulting from the performance of the duties assigned resulted in the commencement or aggravation of the veteran’s smoking habit - Lane and Repatriation Commission [2005] AATA 566.
The examples listed above are only a snapshot of the many factors that can arise and need to be weighed as part of the Tribunal’s fact finding exercise. Nonetheless they point to one important matter. Service alone cannot satisfy the test of causation. Something intrinsic to that service needs to arise from the material before the Tribunal; otherwise the claim will fail as it highlights only a temporal connection.
The material before the Tribunal in this matter is not dissimilar to the material before the Tribunal in Renton and Repatriation Commission [2003] AATA 135. Brigadier Lloyd made the following observations:
“15. The Tribunal thoroughly and carefully considered all the applicant’s evidence regarding the difficulties and stated stress that he experienced during eligible defence service. The Tribunal accepts that at times things were often difficult for him at work and at home. However it is unable to conclude properly that such difficulties and apparent resultant feelings of some stress were sufficiently different to be of real significance from those which were likely to be experienced in civilian life. Difficult jobs, family ill-health and also inadequate housing tend to be common problems in both service and civilian life, particularly for ordinary younger married people and especially was this so in the 1960s and 70s.”
In summary I find from the material presented that the veteran was a diligent and professional soldier who adapted quickly and well to army life. He was a mature married man when he enlisted and from all accounts was well liked by his peers and superior officers. He served in the army at a time when Australia was at peace and when the dangers of smoking were known. By the mid to late 1970s cigarettes were no longer provided in ration packs and the incidence of smoking was far less than it was a generation earlier.
The veteran had already commenced smoking prior to enlistment and would have been one of the older soldiers amongst the new recruits. I do not accept that he would have been particularly susceptible to peer pressure to smoke. If anything, he would have been a mentor to some of the younger men he associated with.
Also there is nothing particularly noteworthy about his camp life, or army life in general, that could be pointed to as suggesting a causal link to the onset of regular smoking.
The duties performed by the veteran were clerical in nature. The Tribunal accepts that at times the tasks put the veteran in stressful situations, but he would have experienced no more stress than a civilian performing similar duties in a civilian environment.
The key stressors that are highlighted by the material were the breakdown in the veteran’s marriage in 1977 and financial problems which had arisen by 1980. Neither of these stressors was related to the veteran’s service.
I am therefore reasonably satisfied that the veteran’s defence service provided only the setting in which he increased his smoking levels. The veteran’s increase in smoking was not causally connected to his defence-service but inextricably intertwined with both issues of personal choice as well as domestic and financial stressors.
As the Tribunal has made this finding it is not necessary to deal with the next issue, namely whether the requirements of factor 6(a) of Instrument No 38 of 2014 (as amended) have been met.
CONCLUSION
For the reasons outlined above, the Tribunal is reasonably satisfied that the veteran’s condition of Chronic Obstructive Pulmonary Disease is not connected to his eligible defence-service and is therefore not defence-caused.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso
..................................[sgd].....................................
Associate
Dated: 23 June 2017
Date(s) of hearing: 10 May 2017 Advocate for the Applicant: Mr A Hornby Advocate for the Respondent: Ms R Blake Solicitors for the Respondent: Moray and Agnew, Lawyers
1
18
0