Whitworth and Repatriation Commission (Veterans' entitlements)
[2024] AATA 3217
•3 April 2024
Whitworth and Repatriation Commission (Veterans' entitlements) [2024] AATA 3217 (3 April 2024)
Division: VETERANS' APPEALS DIVISION
File Number(s): 2023/2924
Re: Nicole Whitworth
APPLICANT
And Repatriation Commission
RESPONDENT
DECISION
Tribunal: Dr Stewart Fenwick, Senior Member
Date of decision: 3 April 2024
Date of written reasons: 22 May 2024
Place: Melbourne
For the reasons given orally at the conclusion of the hearing in this matter, the Tribunal affirms the decision under review.
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Dr Stewart Fenwick, Senior Member
Catchwords
VETERANS’ ENTITLEMENTS – eligibility for pension – whether injury or disease caused or contributed to by defence service – smoking – adenocarcinoma of the lung – Statement of Principles concerning Malignant Neoplasm of the Lung (Balance of Probabilities) (No. 87 of 2023) – whether standard of proof met – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) Military Compensation Act 1994 (Cth) Veterans’ Entitlements Act 1986 (Cth)
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Moffett and Repatriation Commission (Veteran’s entitlements) [2016] AATA 249
Repatriation Commission v Keeley [2000] FCA 532
Roncevich v Repatriation Commission [2005] HCA 40
Wayne Fisher and Military Rehabilitation and Compensation Commission [2013] AATA 934
Secondary Materials
Statement of Principles concerning Malignant Neoplasm of the Lung (Balance of Probabilities) (No. 93 of 2014)
Statement of Principles concerning Malignant Neoplasm of the Lung (Balance of Probabilities) (No. 87 of 2023)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
INTRODUCTION
1.Mrs Whitworth lodged an application for review of a decision of the Veterans’ Review Board (VRB) dated 1 March 2023. In doing so, the Applicant was acting as the legal personal representative of her late husband Mr Shane Whitworth, who had lodged an informal claim for a disability pension shortly prior to his death on 11 February 2021, which claim was later formalised.
2.A delegate of the Department of Veteran’s Affairs had previously denied Mr Whitworth’s claim in a decision dated 15 July 2021. This decision, and the matter in general, proceeded on the basis that Mr Whitworth died as a result of a form of lung cancer known as adenocarcinoma. This condition arose from a history of smoking which commenced prior to, and continued throughout his period of service of nearly ten years in the Australian Army, between 14 August 1990 and 14 January 1999.
3.Mrs Whitworth was represented by a veteran’s advocate, and lodged a Statement of Facts, Issues and Contentions (SFIC) dated 11 January 2024, and the following written statements:
(a)Mr Dennis Austin, dated 5 June 2023;
(b)Mr Robert Lewis, undated; and
(c)Mrs Bethany Setter, dated 10 June 2023.
4.The Respondent lodged a SFIC, dated 8 February 2024, and T documents pursuant to s
37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T), and a bundle of Supplementary T documents (ST).
5.Evidence was given at the hearing by Mr Austin.
6.I provided detailed oral reasons at the hearing when giving my decision. Pursuant to s 43(2A) of the AAT Act, the Applicant subsequently requested written reasons and I reproduce here the reasons given, subject to: additional formatting and citations (including references to SFIC’s); other minor adjustments to expression; and, additional references to evidence or other material upon which I base findings on material questions of fact (s 43(2B) AAT Act; Negri v Secretary, Department of Social Services [2016] FCA 879).
LEGISLATION
7.Liability for pensions by way of compensation for the defence-caused death or incapacity of members of the Defence Force arises under s 70 of the Veterans’ Entitlements Act 1986 (VE Act). ‘Defence-caused’ is generally determined with reference to ‘defence service’ (s 70(5)(a)) and this term is itself defined as ‘continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date’ (s 68(1)(a)).
8.The terminating date is further defined as the date of commencement of the Military Compensation Act 1994 (s 68(1) VE Act). The relevant date is 7 April 1994, and accordingly defence service as defined under the VE Act is taken to end on 6 April 1994 (see also Respondent SFIC [14]-[17]). The significance of this for Mr Whitworth’s claim is that while he served in the Army for nearly ten years, his relevant service for the purposes of determining entitlements under the VE Act is between 15 August 1990 and 6 April 1994 (see Respondent SFIC [54]-[57]).
9.The VE Act provides that any determination in respect of a claim must be decided to the reasonable satisfaction of the decision-maker (s 120(4)). The VE Act also provides that reasonable satisfaction can only arise, ordinarily, where (s 120B(3)):
(a)the material before the decision-maker ‘raises a connection between the injury, disease or death of the person and some particular service rendered by the person’; and
(b)there is in force a Statement of Principles ‘that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service’.
10.In this matter the relevant instrument is Statement of Principles concerning Malignant Neoplasm of the Lung (Balance of Probabilities) (No. 87 of 2023) (SOP). The SOP specifically provides that adenocarcinoma of the lung qualifies as malignant neoplasm (s 7(2)(b)(i)). Further, the SOP provides that a relevant factor that must exist before it can be said on the balance of probabilities that the condition (or death from the condition) is connected with the person’s service includes (s 9(1)) having smoked tobacco products. The level of consumption is specified as an amount of at least 0.5 pack years before the clinical
onset of the condition, and commencing at least 10 years prior. Finally, the SOP provides the existence of this factor (smoking at the minimum rate) ‘must be related to the relevant service rendered by the person’ (s 10(1)).
11.I include here for completeness an additional matter not raised by the parties in any substance at the hearing. The Respondent SFIC observes that a substantially identical factor was found in the preceding SOP (No. 93 of 2014), which was in force when the proceeding commenced [62]. More specifically, this earlier SOP was in force at the time of the original decision under review.
12.This potentially raises an issue as to any ‘accrued right’ for the Applicant in respect of the prior SOP. In short, authorities (including and following the decision Repatriation Commission v Keeley [2000] FCA 532) indicate that the Tribunal may consider applying a prior SOP should it give rise to a more favourable consideration of a claim. Given the equivalence of the factor with respect to smoking, I do not consider any benefit to arise in favour of Mr Whitworth’s claim.
SUBMISSIONS
13.The submissions from Mrs Whitworth appropriately acknowledged that not all of the veteran’s military service qualified as ‘defence service’, and fairly addressed both the law and the evidence (albeit the Applicant SFIC contends that all of Mr Whitworth’s service was eligible service under the VE Act). The primary contention arising from the Applicant’s submissions is that Mr Whitworth’s smoking increased due to his service and particular emphasis was placed on the fact that smoking was permitted during breaks in his recruit training. This was the focus of Mr Austin’s evidence in particular.
14.I summarise briefly from the Applicant SFIC:
(a)the original decision in this matter incorrectly identifies a SOP No. 80/2019 [2];
(b)the veteran’s condition was medically diagnosed on 9 June 2020 [3];
(c)the condition arose due to an increase in Mr Whitworth’s smoking during his service [3];
(d)medical records and a statement of Mr Whitworth’s mother support the view that he was not a heavy smoker prior to enlistment at the age of 17, and his own estimate was five cigarettes a day for four months [3]; and
(e)the Tribunal should adhere to the principles of informality identified in s 119 of the VE Act, which must be acknowledged to be beneficial legislation [7].
15.The Respondent submitted, in essence, that the relevant causal connection is not made out in Mr Whitworth’s situation. Particular stress was placed in written and oral submissions that only a temporal connection can be made between the veteran’s smoking and his defence service.
16.I summarise briefly from the Respondent SFIC:
(a)records lodged in this matter include the following reports regarding the veteran’s smoking in and around his military service:
(i)22 June 1990 – five cigarettes a day for four months upon enlistment [38.1- 38.2] (T3; ST4);
(ii)8 September 1992 – 6-12 cigarettes a day [38.3] (ST1);
(iii)23 June 1997 – 15 cigarettes a day [38.4] (ST3); and
(iv)10 November 1998 – 15-20 cigarettes a day upon discharge [38.5] (T3).
(b)later records variously identify the veteran smoking at a rate of between 6-10 cigarettes per day, with some records indicating his rate was 15-20 pack years, and also 20 per day for 25 years [39.1-39.7];
(c)medical records indicate a diagnosis on 9 June 2020 of lung cancer which had spread to the brain, and that Mr Whitworth suffered a stroke and was referred to palliative care late in 2020, and died on 11 February 2021 [40], [46]-[48];
(d)the claim is taken to be one for liability for a disability pension and a pension may be payable to dependants [52]-[53];
(e)a statement by Mr Whitworth’s mother (T12) that he did not smoke before enlistment and returned from recruit training ‘a chain smoker’ is contradicted by
contemporaneous records, and any reliance upon his service as a paratrooper when serving with the 3rd Battalion, Royal Australian Regiment (3RAR), should be ignored as this is outside the period of defence service under the VE Act [71], [74];
(f)the statement provided by Mr Austin indicates, at most, that when the veteran undertook recruit training, breaks were provided in between lessons that may have been termed smoke breaks, but no one was compelled to smoke [81];
(g)at the time of the veteran’s service, the Department of Defence had issued policy statements (Defence Instructions) elaborating a long-term aim of achieving a smoke- free workplace, and had banned smoking in most enclosed areas as of 1 July 1990 [84];
(h)research indicates that those who commence smoking as a teenager are likely to progress to heavier smoking and dependence at a later age [92];
(i)no evidence in this matter indicates any stressful incident or war service that might have prompted Mr Whitworth to increase his smoking [94]; and
(j)his continued smoking following discharge was for a much longer duration (at least 21 years) than his entire period of military service [96.5].
CONSIDERATIONS
17.There is no fundamental dispute in this matter about Mr Whitworth’s condition nor the procedural validity of his claim. I accept the Respondent’s arguments about the question of qualifying defence service (not reaching beyond 1994) and I understand the Applicant to have also acknowledged this at the hearing. This has the effect of removing a period of somewhat more ‘operational’ service, which I understand to include a tour with the rifle company posted to Butterworth, from consideration.
18.There is a wide range of evidence about the rate of smoking engaged in by Mr Whitworth. I note the Applicant challenges the attempts by the Respondent to rely upon evidence that he may have smoked as a young teenager and that he may, also, have concealed this from his family. I note that there is some disparity in some of the records about what Mr Whitworth’s highest level of consumption may have been. However, I consider it sufficient to take as a foundational fact that he was a relatively light smoker prior to enlistment.
19.The impact of the High Court’s decision in Roncevich v Repatriation Commission [2005] HCA 40 (Roncevich) was discussed during the hearing. While I acknowledge the submission for the Applicant that the VE Act is beneficial legislation, I note also that Kirby J in that decision observed that generalities of legislative construction cannot remove the obligation to pay attention to the language of the relevant act [54].
20.I also consider Roncevich to set out a somewhat more nuanced account of the need for a causal connection to service than arises from a first reading of the Respondent SFIC. The majority observe that ‘defence-caused’ is to have a broad meaning and is not 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’ [27]. Equally, the majority also highlight that in determining attribution to service, consideration must be given to whether there is a causal and not ‘merely temporal’ connexion [23].
21.Reference must be made to the SOP, which identifies a range of accepted factors, and also requires that any relevant factor be related to the defence service. I also note that s 120B(3) of the VE Act requires that there be a connection between the injury or death and some particular service rendered. In this context, I note that the other factors identified in the SOP represent very specific kinds of activity arising from service conditions (such as, for example, inhaling asbestos fibres or high concentrations of polycyclic aromatic hydrocarbons, or exposure to diesel fumes).
22.While Roncevich appears to permit a potentially generalised association between an injury or death and defence service, it still requires a causative connection. I also note that the Oxford English Dictionary supports an interpretation of ‘attributable’ as requiring causation, in the sense of ‘owing to’ or ‘produced by’.
23.I take into account that Mr Austin gave written and oral evidence that entirely supports a view that recruit training afforded a structured opportunity for smokers to indulge their habit. Clearly, there is an association of some kind between the overall military culture of routine training and smoking. However, I do not consider this alone to be a sufficiently strong association to rise above correlation; it does not speak to causation.
24.I do not consider it necessary to rely upon the contentions of the Respondent about the relative weakness of the statement of Mr Whitworth’s mother, or its reliance upon research
about smoking habits. I do give some limited weight to the emergence of a policy apparently aimed at reducing the effects of passive smoking in the workplace. However, I note that it appears the active discouragement of smoking, including use of the term ‘smoko’ did not arise until 1995, which is after Mr Whitworth’s relevant defence service.1
25.I noted at the hearing that I had identified a decision of a Deputy President of the Tribunal addressing somewhat similar factual circumstances as those arising here, Moffett and Repatriation Commission (Veteran’s entitlements) [2016] AATA 249 (Moffett). This matter involved a veteran whose basic training took place some ten years’ prior to that of Mr Whitworth. Similarly however, Mr Moffett smoked relatively lightly prior to enlistment and, similarly, he adduced evidence about the smoking culture during that initial training. Nonetheless, the Tribunal was unable to find a relevant causal connection between the defence service and the veteran’s smoking and medical condition. While I am not obliged to follow previous decisions of the Tribunal, it is generally accepted that decisions of Deputy Presidents can be persuasive.
26.On this basis, and given the broadly similar factual circumstances in Moffett, I give this decision some weight in supporting my conclusion that no causative relationship has been demonstrated in the evidence advanced by Mrs Whitworth.
27.To conclude, the standard of proof required is that of the balance of probabilities, which is widely understood as requiring the Tribunal to be reasonably satisfied as to the particular circumstances required to be determined under the relevant legislative test. As explained by Dixon CJ in Briginshaw v Briginshaw (1938) 60 CLR 336, this involves more than a mere comparison of probabilities and needs an actual persuasion about the occurrence or existence of a fact (at 361). The evidence demonstrated here does not rise beyond the fact that at the commencement of his defence service, Mr Whitworth was more likely than not permitted to smoke during breaks over the weeks of recruit training. I do not consider this is sufficient to persuade me that the veteran’s death from metastasised lung cancer is attributable to four years of defence service.
1 Wayne Fisher and Military Rehabilitation and Compensation Commission [2013] AATA 934, [21].
DECISION
28.For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 28 (twenty- eight paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick , Senior Member
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Associate
Dated: 22 May 2024
Dateofhearing: 3 April 2024 Applicant’srepresentative:
John Horan
CounselfortheRespondent:
Matthew Jorgensen
SolicitorsfortheRespondent
Australian Government Solicitor
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