William Carr and Repatriation Commission

[2010] AATA 517

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 517

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1893

VETERANS' AFFAIRS  DIVISION		)
Re		William Carr

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal M D Allen, Senior Member
Dr I Alexander, Member

Date28 June 2010

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing on 28 June 2010, the decision under review is AFFIRMED.

................[SGD]..........................

M D Allen, Presiding Member  

CATCHWORDS

VETERANS’ AFFAIRS -  Claim for the diseases of ischemic heart disease, osteomyelitis of the sternum and false aneurysm of the aorta denied.  Material raised a reasonable hypothesis connecting diseases suffered by the Applicant with the circumstances of his operational service.  Tribunal not satisfied beyond reasonable doubt that operational service made a material contribution. Decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act (1986) Ss 6A, 120, 120A

CASES

Comcare v Canute (2005) FCAFC 262

Kattenberg v Repatriation Commission (2003) 73 ALD 365

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

12 July 2010 M D Allen, Senior Member
Dr I Alexander, Member    

1. At the conclusion of the hearing of this matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.

2.      The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that these and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen, and Dr I Alexander, Member.

Signed:         ..................[sgd].........................................
  K. Lynch, Associate

Date of Hearing  28 June 2010
Date of Decision  28 June 2010
Date of Written Reasons  12 July 2010
Representative for the Applicant               Veterans’ Advocacy Service
Representative for the Respondent          Department of Veterans’ Affairs

EXTRACT OF TRANSCRIPT OF PROCEEDINGS:

MR ALLEN:  By application made 15 May 2007, the Applicant seeks review of a decision by the Repatriation Commission affirmed by the Veterans Review Board that denied his claim for the diseases of ischemic heart disease, osteomyelitis of the sternum and false aneurysm of the aorta. 

At the outset there has been no dispute between the parties and we are satisfied that the Applicant does suffer from the said diseases.  The ischemic heart disease, quite clearly, is a result of an established smoking habit in the Applicant, and the osteomyelitis and false aneurysms are as the results of surgery which was brought about by his ischemic heart disease. 

The Applicant has periods of operational service.  He also has periods of defence service however, we regard that matter as being immaterial in these proceedings as certainly by 7 December 1972 the Applicant had an entrenched smoking habit.

The relevant incidents giving rise to the Applicant’s claim were alleged to have occurred whilst the Applicant was on operational service as that term is defined in section 6 of the Veterans’ Entitlements Act 1986 (“VEA”), therefore the standard of proof in this matter is that mandated by subsections 120(1) and (3) of the VEA.

Subsections120(1) and (3) of the VEA provide that any diseases suffered by a veteran and claimed to be war-caused shall be accepted as being so caused, unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consider of all the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to section 120A of the VEA, a hypothesis will not be a reasonable hypothesis unless it conforms to a so-called Statement of Principle (“SoP”) issued by the Repatriation Medical Authority.

Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.

In this matter, there is an existing SoP, namely, Instrument No.89 of 2007, which refers to ischemic heart disease.  Instrument No.5 of 2004 refers to osteomyelitis, but it seems, even without the SoP, the causation for osteomyelitis and a false aneurysm (for which no SOP exists), quite clearly, are sequelae of the ischemic heart disease.  The manner in which the Tribunal must approach its task when a SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The so called ‘Deledio principles’ are now so well known as not to require reconsideration here.

In this matter, however, the Deledio steps can be abbreviated somewhat, in that it is quite clear, given the rate at which the Applicant smoked, that there can be said to have arisen a reasonable hypothesis which connects the Applicant’s diseases with his operational service.  The real question in this matter devolves into whether operational service caused or contributed to the Applicant’s smoking habit, or perhaps made a material contribution to the amount smoked by him. 

In evidence to this Tribunal, the Applicant stated that prior to enlisting in the Royal Australian Navy in 1959, he was a non-smoker.  During recruit training he began to smoke the occasional cigarette.  At this stage he never purchased cigarettes, but was content to smoke one if it was offered to him.  After recruit training he was posted to HMAS Albatross, which is a naval air station.  At that base he was allowed wet canteen privileges, that is to say, he was allowed to drink alcohol, and if at the wet canteen he would have the occasional cigarette.  He said, “I never purchased cigarettes, I bludged them.”

This changed in January 1962 when he was posted aboard HMAS Melbourne.  He said up to then he had the occasional cigarette but onboard Melbourne it was different.  Smoking was part and parcel.  Cigarettes were cheap to purchase and there were periods of boredom.  As he put it “there was a lot of down time”. 

In particular, he referred to a period of operational service which commenced on 28 February 1962.  He had been posted, as we stated earlier, to Melbourne at the end of January 1962 and the ship – he joined the ship at Jervis Bay but then sailed to Melbourne, Hobart, Adelaide and around to Fremantle.  The ship then, on or about 28 February, left Fremantle on its way to Singapore.  During its voyage to Singapore it was to pass through the Sunda Straits, and at this time the Indonesian Government was refusing the passage through that strait to Australian naval vessels.  Apparently, the orders to HMAS Melbourne were to pass through the Sunda Strait in any event, and the ship’s crew were warned that there may be offensive operations taken against them.  The applicant puts it in his statement this way:

“When we left Fremantle I realised we were going into action and were told that there was trouble up ahead.  We were advised to write our ‘Dear Mum’ letters which I believe were stored at Broome.  We were fully armed and at battle stations as we came through the Sunda Straits.”

The applicant said in evidence that at this time his smoking increased.  The real difficulty in this matter is the rate at which the applicant smoked. 

At document T5 and also T6 are smoking questionnaires which purport to have been made by the Applicant.  In the proceedings today, he has disavowed those documents, pointing out that they were, in fact, completed by his wife whilst he was in hospital either preparing to undergo surgery or having undergone treatment.  In answer to direct questions he said that in effect that no weight could be put upon them and they were not correct. 

As a result of becoming aware of these particular documents, apparently by making inquiries both at the Department of Veterans’ Affairs and of his own wife, an advocate at an RSL Club prepared a document which is at T7, page 30, and which is signed by the applicant.  The document reads:

“I wish to provide further clarification in relation to my submission of Smoking Questionnaire.  January ’04 is the date I ceased smoking.”

We would only interpose that the earlier documents said January ’03.  It seems quite clearly a correction.  Paragraph 2 of the document reads, however:

“In 1959, when I started smoking after joining the navy, I was smoking both roll-your-owns and ready-made filters, with both of these varieties equating to 25 cigs a day.  I ceased smoking roll-your-owns in approx. late 1961.  I did smoke in excess approx. 40 a day on other occasions, due to anxiety and apprehension.  These were when I was serving in the Far East in February/March 1962 and Vietnam, May/June 1965. I believe I smoked a similar amount for a short time after two collisions on HMAS Melbourne, involving the Voyager and the Frank Evans vessels.  Most service-people smoked (peer pressure) in those days, and they were cheap and readily available.  I sincerely hope this clarifies my smoking history.”

We accept that document as being what it is upon its face, namely, a sincere attempt by the Applicant to explain to the Respondent his smoking history. 

So far as his period of operational service from 28 February to 16 March is concerned, it seems that the only period when any apprehension was occasioned to the Applicant was when the vessel was actually passing through the Sunda Strait.  The rest of the voyage of the Melbourne that time appears not to have caused any anxiety.  Indeed, he told Professor Matic in his report of the 21^st of the 10^th, 2009, as follows:

“He denied there were any events apart from not being told where the ship was heading until the ship had left Perth.  He was at action stations and complained that he did not know where the ship was.  He denied, however, that there were any untoward events on that ship at that time.”

And as we have said, the ship obviously reached Singapore and for the rest of its journey to the Far East there has been no evidence given of anything untoward. 

In the Applicant’s statement, which became exhibit A4 in these proceedings, he said:

“I joined HMAS Melbourne in January 1962 and within a short time would have been smoking about a packet of 20 cigarettes a day on most days.”

Significantly, he continues, after speaking of leaving Fremantle and going into action:

“My smoking habit increased during this period, and I would have been smoking up to two packets of cigarettes on some days.  Apart from working, which was very stressful, most of the time was uninteresting, and there was a lot of opportunity to smoke.  The majority of people smoked, and cigarettes were so cheap duty free, maybe 5 or 10 cents for a pack of twenty.  It was during this time that I believed I became dependent on tobacco and always carried cigarettes with me after this time.  We arrived back in Australia in June 1962.”

In evidence today, the Applicant said that by the time he got back in June 1962 he was a pack-a-day man, which, of course, was – if one takes his statement – the same amount he was smoking prior to his period of operational service.  We reiterate:

“I joined HMAS Melbourne in January ’62 and within a short time would have been smoking about a packet of 20 cigarettes a day on most days.  My smoking habit increased during the operational service.”

That also is consistent with the statement at document T7:

“I was smoking 25 cigarettes a day and then increasing on operational service.”

We are satisfied beyond reasonable doubt that the Applicant had an established smoking habit prior to operational service.  We accept that at times during operational service he would have increased his smoking, but on his evidence, by the time HMAS Melbourne arrived back in Australian waters, he was smoking a packet of cigarettes a day, and this continued with some exacerbations at times for the remainder of his naval service.  So far as any so-called Kattenberg principles are concerned, we are satisfied beyond reasonable doubt that that case simply does not apply, as operational service did not make a material contribution – see the discussion of “material” in Comcare v Canute (2005) FCAFC 262.

As we are satisfied beyond reasonable doubt that the Applicant’s smoking habit was entrenched before operational service, and that any temporary increase during operational service did not continue his smoking habit, the decision under review is AFFIRMED.

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