West and Repatriation Commission - [2001] AATA 651

DECISION AND REASONS FOR DECISION [2001] AATA 651

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/160

VETERANS' APPEALS DIVISION       )
           Re      HELEN FAYE WEST
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date13 July 2001
PlaceHobart

Decision      The decision under review is set aside and the matter remitted for assessment in accordance with the Tribunal's finding.
  [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Veterans' Entitlements – widow's pension – veteran's death from ischaemic heart disease – veteran's smoking habit whether service related – meaning of continuous full-time service.
Veterans' Entitlements Act 1986 – ss.5C, 7
Statement of Principle No. 141 of 1996
Repatriation Commission v Tuite [1993] 29 ALD 609

REASONS FOR DECISION

13 July 2001 Ms A F Cunningham (Part-time Member)

This was the hearing of an appeal against a decision of the Veterans' Review Board (VRB) dated 23 October 2000 which affirmed a decision of the Repatriation Commission dated 11 December 1998 rejecting a claim for a widow's pension. The claim for widow's pension was lodged by Genevieve Clara Evans on 8 December 1998 based on the death of her husband, Alexander Valentine Evans ("the veteran"), on 17 December 1995.
The applicant is the executrix of the Will of the said Genevieve Clara Evans, and therefore the person pursuant to the provisions of s.126 of the Veterans' Entitlements Act 1986 ("the Act"), entitled to be treated as the claimant.
It was accepted that the veteran had rendered eligible war service within the meaning of s.7(1)(c) which states:
"7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
…
(c)a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service."
One of the issues for determination is, the length of the period of eligible war service. The respondent contended that the period of service was between 1 October 1941 and 4 January 1942, a period of some 96 days during which it could be accepted that the veteran had "rendered continuous full-time service".
Mr. Castle on behalf of the respondent, conceded that the veteran served in the Australian Army from approximately 20 August 1940 to 17 August 1943, but did not serve outside Australia. Mr. Castle submitted that the veteran's service from 4 January 1942 was with the reserve service and could not be regarded as full-time service within the meaning of the Act.
It was further contended on behalf of the respondent, that if the Tribunal accepted that the veteran's eligible war-service was for a period of just under 3 months, it would be difficult to conclude that the veteran's death was related to his period of service. The death certificate at T38 states that the cause of the veteran's death was acute renal failure due to ischaemic cardiomyopathy.
Mr. Castle informed the Tribunal that the respondent accepted the connection between the veteran's death from ischaemic heart disease and his smoking habit. The relevant Statement of Principle concerning Ischaemic Heart Disease Instrument No. 141of 1996 was tendered into evidence. The Tribunal was referred to sub-paragraph (e) of paragraph 5 which lists the factors that must exist before it can be said that, on the balance of probabilities, death from ischaemic heart disease is connected to circumstances of a person's relevant service. Sub-paragraph 5(e) reads as follows:
"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 10 years of cessation."
Mr. Castle submitted that the issue for determination was whether the Tribunal could be satisfied on the balance of probabilities that the veteran's smoking habit was increased or aggravated by his period of service.
No oral evidence was given and the Tribunal was requested to decide the issues on the written material before it, which comprised the 'T' documents lodged pursuant to s.37 of Administrative Appeals Tribunal Act 1975.
As the veteran had not rendered operational service, the Tribunal is required to decide the issues to its reasonable satisfaction in accordance with the provisions of s.120 (4) of the Act. As the claim for pension was made after 1 June 1994, in accordance with the provisions of s.120(b) of the Act, the Tribunal 's assessment is to be determined by reference to the relevant SoP.
The eligibility for a pension is dependent upon the Tribunal finding that the veteran's death "arose out of, or was attributable to, any eligible war service rendered by the veteran" (s.8(b) of the Act). In other words in the present case, the Tribunal must find a causal connection between the veteran's smoking and his service.
There are various references in the 'T' documents to the veteran's smoking habit. At T97 the veteran's late wife declared that her husband had not smoked prior to his service. She based this statement on the fact that she had observed that he was smoking during their courtship which occurred during his service. The veteran himself, however made the following statement (T26, p.40):
"I smoked lightly before going into the Army, but when on service under the conditions of service life I got into the habit of smoking heavier, as for example during training there were breaks when habitually it became the practice to smoke and at halts on route marches everyone seemed to be keen to smoke.
Also in camp itself there were periods off duty when pleasures were few and smoking became something regarded as a pleasure you could always indulge in. At the time of discharge to civil life I was smoking about 20 cigarettes per day on a regular basis and continued to smoke in this way. I gave it up about 5 years ago because at the time there was much publicity about lung cancer risk." (Dated 18/6/87).

At T55 (page 70) the veteran had stated:

"Prior to service (1942 to 1945) I smoked cigarettes lightly maybe 1 packet per week. On entry into the Army and duration of service (i.e. 3 years) this habit of smoking increased to cigarettes and tobacco smoking, as well during service as the free and cheap availability of both cigarettes, tobacco, so freely available to service personnel encouraged me to smoke more and I smoked both at an average of at least 5/6 pkts per week, plus 2 ozs of tobacco per week. The latter part of my service of 12 months I was a Staff car personal driver, and this involved many hours of sitting around waiting for Senior Officers. I smoked more so in this job due to boredom of long waiting duration, awaiting my officers. I contend that my service, availability of free and cheap cigarettes plus tobacco originated my Atherosclerosis which resulted in my Ischaemic Heart disease and thus being fitted with a pacemaker."

In answer to questions submitted by the Department of Veterans' Affairs, the veteran responded that he first began smoking at the age of 21/22 years of age on entering the Army and continued to do so "until about 4 years ago" acting on the advice of Dr. T. Craven. In answer to the question why did he start smoking, he responded "little to do in Brighton Camp and to be one of the group of smokers and that this was encouraged by the issue of free cigarettes/tobacco supply, I then took to the habit."
The leading authority in relation to a connection between the veteran's period of service and his smoking habit is the Full Court's decision in Repatriation Commission and Tuite reported at 29 ALD 609. At page 612 Davies J stated:
"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 than 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".

The Full Court in that case found that it was open to the Tribunal on the evidence before it to find a causal connection between the veteran's service and his smoking habit.

If Mr. Castle's contention that the relevant period of service for the veteran was a mere 3 months is correct, then it would obviously be more difficult to substantiate a connection between his service and his smoking habit. The veteran's eligibility for war service is dependent upon that service being "full-time continuous service" within the meaning of s.7(c) of the Act. Continuous full-time service is defined in s.5C as meaning:
"continuous full-time service means:
(a) in relation to a member of the Defence Force:
(i)service in the Naval Forces of the Commonwealth of the kind known as continuous full-time naval service; or
(ii)service in the Military Forces of the Commonwealth of the kind known as continuous full-time military service; or
(iii)service in the Air Force of the Commonwealth of the kind known as continuous full-time air force service;
…".
Section 5C states that Defence Force "has the same meaning as the Defence Act 1903". Part 3 of the Defence Act 1903 states in s.30 that "the defence force shall consist of the Naval and Military Forces of the Commonwealth, and shall be divided into two branches called the Permanent Forces and the Citizen Forces".
The provisions of s.30(1) of the Defence Act provided that the Permanent Forces shall consist of (inter alia) soldiers and others who are bound to continuous military service for a term. Section 32(1) provides for the division of Citizens Forces into Militia Forces, Volunteer Forces, and Reserve Forces. Sub-section (4)(b) provides that Reserve Forces consist of "persons who, having served in the active forces or otherwise as is prescribed, are enrolled as members of the reserve forces". That sub-section was replaced in 1909 by one which provided that the Military Reserve Forces included all those liable to serve in time of war under s.59 (all males between the age of 18 and 60 years). The term "continuous service" was referred to in the Defence Act 1903 -1941 only in relation to a member of the permanent forces.
The Tribunal was referred to an article written by Bruce Topperwien in VA Law Volume 1, No. 4, where he stated when referring to the fact that there is no reference to service on a continuous basis in the Defence Act in relation to Citizen Forces, "Nevertheless, it is reasonable to assume that a person who was rendering service in the Citizen Forces on a continuous basis, and that was his only "employment", would have been regarded as rendering 'continuous full-time service'. In order to recognise part-time service rendered during World War 2, provision was made in the VEA to deem certain service to be 'continuous full-time service' while that service was being rendered."
Mr. Topperwien then referred to the provision contained in paragraph 5R(1)(b) in the Note to the definition "continuous full-time service" where the Minister may, by notice in writing published in the Gazette, make: "a determination that this Act, or specified provisions of this Act, are to apply to and in relation to the person (being a member of the Defence Force), or a person included in that class of persons (being members of the Defence Force) as if he or she was, while he or she was rendering relevant service, rendering continuous full-time service".
The Tribunal was provided with a copy of a determination dated 18 December 1987 by the then Minister of State for Veterans' Affairs, Benjamin Charles Humphreys, stating that the Veterans' Entitlements Act 1986 shall apply to persons who serve with the Citizen Military Force or the Volunteer Defence Corps on a part-time basis during any period of such service as if that person was while rendering service during World War II deemed to be rendering continuous full-time service for the purposes of the Act.
It is clear from the Certificate of Discharge contained in the 'T' documents at page 117 that the veteran was released from full-time service on 4 January 1942 after serving in the permanent forces for 96 days and transferred to the reserve. The veteran was discharged on 17 August 1943. The reason for the veteran's release from full-time service and transfer to the reserve forces was that he was assessed as being medically unfit due to problems with his feet that prevented him from marching. The applicant stated in a letter to the Department of Veterans' Affairs contained at T35, that after a period of 3 months he was unable to carry out the duties required (route marching and guard duties etc) and was transferred to "staff car driving full-time" until discharge from the Military Forces in 1943.
It was Mr. Castle's contention that reserve service is not full-time service and therefore could not be regarded as continuous full-time service within the meaning of the Act. Mr. Castle further submitted that service in the Citizen Military Forces only constitutes full-time and eligible service when full-time hours are actually worked. These contentions however, seem to be inconsistent with the determination of the Minister of State of 18 December 1987 that persons serving with the Citizen Military Force (which include the Reserve Force) on a part-time basis should be deemed to be rendering full-time continuous service for the purposes of the Act.
Mr. Castle referred the Tribunal to the Veterans' Service and Casualty Form, (page 18 of the 'T' documents) which recorded that the veteran was on "28/1/41, marched into camp, on 16/4/41 granted leave without pay from 16/4/41 to 17/4/41 inclusive, 12/4/41 marched out of camp, 4/7/41 marched into camp, 23/7/41 granted leave without pay. 23/9/41 granted leave without pay to (indecipherable), 8/10/41 called up to service on continuous full-time duty, 5/1/42 ceased to employed on full-time duty, 5/1/42 marched out of camp, 5/1/42 transferred to Area 40A – medically unfit, 18/8/43 discharged medically unfit for service no occasioned by his own default".
Mr. Castle claimed that the breaks in the veteran's period of service broke the continuity of any alleged continuous full-time service within the meaning of the Act. The Tribunal does not accept that any such short periods granted for leave without pay would affect a finding that the veteran was rendering continuous full-time service within the meaning of the Act.
On the basis of the evidence before it, the Tribunal finds that the veteran served in the permanent forces from on or around 1 October 1941, that he was released from full-time service on 4 January 1942 due to medical problems when he was transferred to the Army Reserve, and ultimately discharged on 17 August 1943. In accordance with the provisions of the relevant legislation, namely s.5C of the Act, the Defence Act 1903 – 1941 and the Instrument made by the Minister on 18 December 1987 made under the Defence Act which continues to have force by virtue of s.8 of the Act (Rewrite Transition Act 1991) this Tribunal determines that the veteran had eligible war service pursuant to s.7 of the Act in that he had rendered continuous full-time service between 1 October 1941 and 17 August 1943.
Further, on the basis of the material contained in the 'T' documents and in particular statements made by the veteran at pages 40 and 70, the Tribunal determines that on the balance of probabilities, the veteran's smoking habit which led to his death from ischaemic heart disease was service related. The evidence was that the veteran was a light smoker before joining the Army where his habit developed, that cigarettes and tobacco were cheap and readily available, that other service personnel encouraged him to smoke, that smoking was regarded as a pleasurable occupation by service personnel, that his habit increased particularly during the period when he was a staff car personal driver and that he smoked due to boredom and to fill in time during the long waits.
The Tribunal having found that the veteran's death was service related, it accordingly sets aside the decision under review and remits the matter for assessment on the basis that the date of effect of the claim of pension was 18 September 1998.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  15 March 2001
Date of Decision  13 July 2001
Counsel for the Applicant        Mr R M Webster
Solicitor for the Respondent    Mr M Castle (Department of Veterans' Affairs)