Callaghan and Repatriation Commission [2002] AATA 180 (19 March 2002)

Last Updated: 22 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 180

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1756

VETERANS' APPEALS DIVISION )

Re TIMOTHY CALLAGHAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member Dr M E C Thorpe - Member

Date 19 March 2002

Place Sydney

Decision The Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 18 February 1999 as affirmed by the Veterans' Review Board on 12 October 2000 to refuse the Applicant, Mr Timothy Callaghan's claim that his chronic bronchitis was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

The Tribunal affirms the findings of the Repatriation Commission dated 18 February 1999 as affirmed by the Veterans' Review Board on 12 October 2000 with regard to the other conditions previously claimed, namely emphysema and polycystic kidney disease not addressed to this Tribunal. The Tribunal notes that the Applicant's chronic sinusitis has been accepted as war-caused.

...................................

Ms G Ettinger

Senior Member

CATCHWORDS

Veteran - whether chronic bronchitis war-caused - Veteran smoked before eligible service - no increase in smoking found - decision under review affirmed

LEGISLATION

Veterans' Entitlements Act 1986 - ss 9, 120B, 120(4) 196B(14)

Repatriation Medical Authority, Statement of Principles Instrument No.74 of 1997 Concerning Chronic Airflow Limitation and Chronic Bronchitis and Emphysema

CASE LAW

Repatriation Commission v Law [1980] FCA 92; (1980) 31 ALR 140

Repatriation Commission and Keenan (1989) 19 ALD 509

REASONS FOR DECISION

19 March 2002 Ms G Ettinger - Senior Member Dr M E C Thorpe - Member

1. The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission dated 18 February 1999 (T8) as affirmed by the Veterans' Review Board decision of 12 October 2000 (T16), to reject the Applicant Mr Timothy Callaghan's claim that his chronic bronchitis and emphysema were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The Tribunal noted also that the decision of the Repatriation Commission of 18 February 1999 also refused the Veteran's claim for polycystic kidney disease and chronic sinusitis which were not dealt with in the Veterans' Review Board decision of 12 October 2000, and neither at this Tribunal, although it was noted that chronic sinusitis had been accepted as a war-caused disability by the time the matter was heard at this Tribunal.

2. The Tribunal noted also that there were a number of other decisions on file which were not the subject of appeal before it; there was no need therefore to discuss them further here.

3. The Applicant, Mr Timothy Callaghan was represented by Mr C Colborne of Counsel, and the Respondent by its advocate, Mr P Godwin.

4. The parties agreed that should the application be successful, the date of effect would be13 March 1999.

ISSUES BEFORE THE TRIBUNAL

5. The issue for consideration by the Tribunal was whether the chronic bronchitis suffered by the Applicant was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. The Tribunal noted that the Applicant was not making a claim for emphysema.

6. Although the effect of the inhalation of cordite and/or other substances during war service was originally part of the claim before the Tribunal, by the time of closing submissions, Mr Colborne conceded on behalf of the Applicant that he had withdrawn that part of the claim.

LEGISLATIVE ENVIRONMENT

7. The relevant legislation in this matter was the Veterans' Entitlements Act 1986 ("the Act") in particular sections 9, 120B, 120(4) and 196B(14) . Section 9 of the Act provides as relevant:

"9 War-caused injuries or diseases

(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

...

(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

..."

8. The Tribunal noted that as Mr Callaghan had lodged his claim with the Respondent after 1 June 1994, it was required to apply section 120B of the Act and consider Mr Page's claim in light of any applicable Statements of Principles ("SoPs") as issued by the Repatriation Medical Authority.

"120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;

(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.

Note 1: Subsection 120 (4) is relevant to these claims.

Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a) the material before the Commission 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:

(i) a Statement of Principles determined under subsection 196B (3) or (12); or

(ii) a determination of the Commission under subsection 180A (3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

..."

9. Moreover, as Mr Callaghan had served his country on eligible service from 1 October 1941 to 1 December 1943, the standard of proof applicable was to the Tribunal's reasonable satisfaction pursuant to section 120(4) of the Act.

"120 Standard of proof

...

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

..."

10. The Tribunal noted that the relevant SoP at the time of the Repatriation Commission decision of 18 February 1999, was Instrument No.74 of 1997, concerning Chronic Airflow Limitation and Chronic Bronchitis and Emphysema.

11. The definition of chronic bronchitis in the relevant SoP is as follows:

"chronic bronchitis" means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases attracting ICD code 491. The bronchitis may be present alone or may be accompanied by chronic airways obstruction or limitation, with or without a reversible component. ..."

12. In considering SoP No.74 of 1997, the Tribunal noted that the factors that must exist before it can be said that, on the balance of probabilities, chronic bronchitis ... is connected with the circumstances of a person's relevant service are in this case, Factor 5(e) which as relevant follows:

"(e) smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis and/or emphysema; ..."

13. Factor 6 of the SoP deals with factors that apply only to material contribution or aggravation and reads as follows:

6. Paragraphs 5(a)(iii), 5(a)(iv), 5(e), to 5(h) apply only to material contribution to, or aggravation of, chronic bronchitis and/or emphysema where the person's chronic bronchitis and/or emphysema was suffered or contracted before or during (but not arising out of) the person's relevant service; ..."

EVIDENCE BEFORE THE TRIBUNAL

14. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), and the following Exhibits:

ITEM DATE NAME

Statement of Timothy Callaghan 5 July 2001 Exhibit A1

Statement of Mavis Whitty 27 May 2001 Exhibit A2

Undated Statement of Reginald Mitchell Approx. May/June 2001 Exhibit A3

Medical Report of Dr P Gianoutsos 25 September 2001 Exhibit A4

Medical Report of Dr P Gianoutsos 3 July 2001 Exhibit A5

Service Documents Exhibit A6

T-Documents including pages 54A and B Exhibit R1

Medical Report of Associate Professor A Breslin 12 March 2001 Exhibit R2

Clinical Notes of Dr A Mahoney Exhibit R3

Central Coast Area Health Service - Gosford Hospital Notes Exhibit R4

Transcript of VRB Hearing 12 October 2000 Exhibit R5

15. Oral evidence in person was given by the Applicant, Mr Timothy Callaghan. Dr P Gianoutsos, thoracic physician, and Associate Professor A Breslin, thoracic physician, who gave evidence by telephone link.

EVIDENCE OF MR TIMOTHY CALLAGHAN - THE APPLICANT

16. Mr Callaghan whose date of birth was 28 February 1921, and whose statement dated 5 July 2001 was before the Tribunal as Exhibit A1, gave oral evidence. He said that he left school at the age of 14 years, and obtained whatever jobs he could. It was the time of the depression, and things were not easy, and Mr Callaghan said that he worked in a grocery shop, various factories, and a printing office amongst others. He said that he had been very ill with an infection in the neck, and had been hospitalised for many weeks in 1936/7. He then moved to the country where he was a general station hand.

17. He was conscripted into the Army on 2 January 1942 aged 20 years he said, and worked first in NSW in signals, before being posted to North Head as an anti-aircraft gunner. Mr Callaghan said that he did coastal defence work at Nowra, and was posted to Goulburn in approximately mid-1942. He was then required to move a number of times, and worked in tanks for approximately 12 months. (The Tribunal noted that Mr Callaghan's eligible service was from 1 October 1941 to 1 December 1943.)

18. Mr Callaghan said that before enlistment, his health had been good, but that he developed a "germ in the back of his neck", streptococcus, after enlistment, and contracted a cold in Goulburn which lasted a long time. He said that he was sick for some 9 -10 months with rheumatism, sinus trouble, eye strain and a cough. He said in reference to his cough that there was no knowledge then of airborne gases of fumes in the tanks, adding, "when we started firing two pounder shells - the shell case came back into the tank". He said that only half the gas went out, and that there was no ventilation in the tanks. He said that the effect it caused him was a tightness in the chest in the morning, also sinus and a cough he has had ever since.

19. When cross-examined about a dry cough, Mr Callaghan said that over the years he used to wake up with a blocked nose, and only had chest problems when he had a cold.

20. Mr Callaghan told the Tribunal that on discharge, in December 1943 or early 1944, one doctor had told him he had bronchitis, another that he had asthma. He said that he had tried all manner of medications and had been taking Ventolin since 1957.

21. When asked what changes he had noticed since 1975, Mr Callaghan said that he first noticed he was short of breath 10 years ago and he now found it hard to push the lawn mower.

22. Mr Callaghan said that he suffered a polycystic kidney and ceased working to go onto the pension in 1977.

23. As to smoking; Mr Callaghan said that he commenced smoking aged 14 years, but did not smoke much then, perhaps 5 - 6 cigarettes a day. In his written statement, Mr Callaghan said that:

"During service I smoked approximately 7 to 11 cigarettes per day, depending on their availability and how much time we had to smoke.

...

We were not allowed to smoke in the tanks because of the fumes and fuel.

...

I was in 3^rd Army Tank Battalion from 13 October 1942 until I went before the medical board on 22 May 1943. I would be in the tank nearly every day, from 8 am to 5 pm, 3 to 4 days per week. We were firing ammunition, 50 minutes on, 10 minutes off on the range.

...

When I gave up at the age of 68 I estimate I was smoking 15 to 20 cigarettes per day.

...

I did not ever have bronchitis until my service, as if I had, I believe it would have affected my A1 rating on enlistment."

24. Mr Callaghan said that he smoked a pipe in the bush (1937 - 1940) but did not know the quantity. He said that he was ten miles out of town, had no radio, and he smoked and read every night.

25. He said that someone had stolen his pipe when he was in hospital with measles and he subsequently smoked 50 Camels because he could not roll his own. He said that he continued to smoke until Dr Greer at Orange cautioned him and he went "cold turkey", ceasing his smoking 15 years ago, when he suffered angina.

26. Mr Callaghan described the Army routine, commencing with roll call at 6:00 am and indicating that with breaks of 10 minutes each, he managed to smoke six times a day. He said that during his service he did not smoke more than 15 cigarettes a day. Mr Callaghan indicated however that when he was in the Army with his mates, they all drank beer, and then there was more smoking.

27. Mr Callaghan told the Tribunal that when he was on guard duty, he began to smoke and drink more because he was a "nervous wreck" due to the Regimental Sergeant Major's dominance.

28. Mr Callaghan indicated that after leaving the Army, there was less stress and he smoked less because he worked on the land. He said he did not smoke during the harvest, and finally ceased smoking in 1986/7.

29. When cross-examined about what he had indicated on his smoking questionnaire at T7, Mr Callaghan replied that he just said that he had smoked before joining the Army, but did not indicate the quantity. He said it had been 60 years ago, and he could only estimate the amount.

30. When cross-examined regarding the report at T7/38, Mr Callaghan said that he lost his pipe in 1942 and subsequently bought two soft packs of 20 cigarettes, that is, smoking approximately 40 a week.

31. When cross-examined about the report of Dr Gianoutsos (Exhibit A5), Mr Callaghan said it was an inaccurate account, because Dr Gianoutsos mentioned a brother and sister whereas Mr Callaghan was an only child, and mentioned also that the Applicant's mother had bronchitis whereas she did not.

32. As to Dr Hayes (T16/90) who had said in his report that Mr Callaghan smoked ten cigarettes a day; Mr Callaghan commented that he could not say whether he gave the doctor that information.

33. When cross-examined about Exhibit R4/31, his admission to Gosford Hospital on 9 June 1990, where the record had indicated that Mr Callaghan had ceased smoking 40 years previously, the Applicant said that the doctor there had been of Asian background and that his understanding of English had not been adequate.

34. In re-examination, Mr Colborne sought to assist the Tribunal by clarifying the amount the Applicant smoked, but regrettably was unable to obtain consistent replies to his questions. When for example Mr Colborne asked Mr Callaghan by reference to T7/39 whether he smoked 40 cigarettes a week, the Applicant replied by saying he might have shared his cigarettes but that ultimately he did not smoke more than ten cigarettes a day.

MEDICAL EVIDENCE

evidence of dr p gianoutsos - thoracic physician

35. Dr Gianoutsos, whose medical reports dated 25 September 2001 and 3 July 2000 were Exhibits A4 and A5 respectively, gave evidence before the Tribunal.

36. He told the Tribunal that the effects of cordite and primers could cause acute irritation but that such irritation would not continue after exposure had ceased. He did say however that smoking was an important factor and an ongoing irritant in relation to bronchitis. This was corroborated in his report (Exhibit A5), where he stated as follows:

"He attributed the development of a cough, when he was subject to the inhalation of cordite fumes when doing gunfiring on Matilda tanks when he was in the turret of these tanks. The cough has persisted lifelong, there has been obviously some confusion as to the cause or nature of the cough ...

On the basis of his comment it would appear to be more probable than not, that the inhalation of cordite fumes (nitroglycerine and sulpha compounds coupled with primer which may contain barium nitrate, ...) caused his initial cough. ..."

37. When referred to Exhibit R3 and asked whether he would expect a local doctor to mention bronchitis in his records if the patient so suffered, Dr Gianoutsos said that he would have thought so. He added however that he believed Mr Callaghan had chronic bronchitis. As to why there was no mention of a productive cough in Exhibit R3, Dr Gianoutsos opined that although usual, the production of sputum was not essential for Mr Callaghan's condition.

38. Dr Gianoutsos had recorded in his report at Exhibit A5, that Mr Callaghan had reported a daily cough, "productive of sputum for more than three months in any one year and has had such symptoms since his Army days ..." When asked how he reacted to the fact the Applicant had told the Tribunal that he had a dry cough and no colds until he had an influenza injection, Dr Gianoutsos said that he could only record what the Veteran had told him.

evidence of professor a breslin - thoracic physician

39. Professor Breslin, whose report of 12 March 2001 was Exhibit R2, gave evidence before the Tribunal by telephone link.

40. Professor Breslin told the Tribunal that Mr Callaghan had smoked varying amounts for many years, and that his cough during service emanated from upper respiratory tract disease and not chronic bronchitis. He said that much later, the smoking had resulted in chronic bronchitis and chronic airflow limitation. Professor Breslin said that Mr Callaghan's general practitioner had not been taking regular sputum tests until recently.

41. In reply to questioning regarding Mr Callaghan's evidence about the effects of influenza vaccine, Professor Breslin said that the vaccine had been in use for some 15 - 20 years, and that Mr Callaghan had productive sputum for the past 10 - 15 years. He also said that Mr Callaghan's lung function was not too severe given he was 80 years old.

42. The Tribunal noted that Professor Breslin stated in his report that Mr Callaghan had told him that he had commenced smoking at the age of 14 and ceased aged 68, "smoking up to 20 cigarettes a day." Professor Breslin had also reviewed documents relating to Mr Callaghan and commented in his report (Exhibit R2) as follows:

"Certainly there is therefore some confusion about his smoking history and I am not sure what the truth is, but certainly the amount of smoking that he did on Service was very limited and would not have caused any disease of itself."

43. Professor Breslin also wrote at page three of his report:

"He has had a daily cough since 1942, which he thinks started with a cold and is particularly bad in the morning and is precipitated by no obvious precipitating factors. He absolutely denied any sputum at any time, but I note that other doctors have indicated when seeing him clinically that his cough was occasionally productive."

clinical notes of dr a mahoney - general practitioner

44. The Tribunal was mindful that Dr Mahoney's/ Clinical Notes recorded visits by Mr Callaghan over the period 1993 to 2001. Over several visits between 1993 and 1995, Dr Mahoney had recorded complaints by Mr Callaghan about a cough and had recorded a diagnosis of bronchitis in 1994. However there was no mention of a productive cough.

45. The Tribunal noted the definition of chronic bronchitis given by Dr Gianoutsos (Exhibit A4), who cited the World Health Organisation, which mentioned cough and sputum, noting also that the current definition could be different, and mindful that the definition in the SoP No.74 of 1997, included "excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years...." The Tribunal was mindful that it is bound by the SoPs in assessing veterans.

other evidence

46. The Tribunal also had before it statements of Ms Mavis Whitty dated 27 May 2001 as Exhibit A2, and an undated statement of Mr Reginald Mitchell (said to have been written in approximately May or June 2001), as Exhibit A3.

47. Ms Whitty stated that she had known Mr Callaghan since approximately 1937, and that he had never had chest complaints or bronchitis at that time.

48. Mr Mitchell stated that he had known the Applicant since approximately the age of 10, and that the only need the Applicant had had to see a doctor was for an infection in his neck at 14 years of age.

49. Both Ms Whitty and Mr Mitchell stated that Mr Callaghan had been a healthy young man.

SUBMISSIONS AND CONCLUSIONS

50. In coming to the correct and preferable decision, the Tribunal had to take into account the evidence, both written and oral, the case law, legislation and relevant SoP to decide whether Mr Callaghan's chronic bronchitis was war-caused pursuant to section 9 of the Act. The Tribunal was mindful that it had to apply section 120B of the Act, and the relevant SoP, Instrument No.74 of 1997.

51. The Tribunal noted that Mr Callaghan had served his country on eligible service between 1 October 1941 and 1 December 1943, and accordingly the standard of proof to be applied in this matter was section 120(4) of the Act, and SoP Instrument No.74 of 1997.

52. Mr Callaghan's accepted disabilities were bilateral sensorineural hearing loss, chronic sinusitis and small vessel stroke, and the non-accepted disabilities were polycystic kidney disease, chronic bronchitis and emphysema. Mr Colborne conceded when making his submissions, that the Applicant could not meet the SoP in respect of airborne irritants. He submitted however that Mr Callaghan had a dry cough in those early days, and that the increase in his smoking was connected with his war service.

53. In considering this the Tribunal looked to Factor 5(e) of the SoP No.74 of 1997 which as relevant follows:

"(e) smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis and/or emphysema; ..."

54. Mr Colborne submitted that the Tribunal was also required to consider section section 196B(14) of the Act, and the phrase "arose out of" or "was attributable to". He submitted the Tribunal should consider whether smoking during war service had contributed to Mr Callaghan's bronchitis within the terms of section 196B(14). He referred the Tribunal to Repatriation Commission v Law [1980] FCA 92; (1980) 31 ALR 140 and to section 196B(14) of the Act , which, he said, did not indicate that smoking had to be proximate or the main reason, but a material cause.

55. In reply Mr Godwin raised the case of Repatriation Commission and Keenan (1989) 19 ALD 509 and the causal relationship therein discussed. The Tribunal was satisfied that although the legislation which applied in Law (supra), and that which applied at the later date when Keenan (supra) was decided, differed, the phrases "has arisen out of" and "is attributable to his war service" (which were said in Keenan (supra) to be indistinguishable except as to grammatical form, from the phrases in section 9(1)(b) of the Act), applied similarly. Pincus J in Keenan (supra) also referred to section 9(2) of the Act, which refers to changes in the "environment", and referring to Laws (supra) stated as follows: "shows that war service need not be the sole or dominant cause and that it is enough that it be a contributing cause." The Tribunal accepts there is no doubt that unless a causal connection is made between an event or a material aggravation, (as smoking has been claimed to be in this case), a condition cannot be found to have been war-caused.

56. For the sake of completion, and mindful that unless Mr Callaghan met the conditions set down in the SoP, he could not have his chronic bronchitis declared to be war-caused, the Tribunal inserted section 196(14) of the Act which follows as relevant:

"196B Functions of Authority

...

(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a) it resulted from an occurrence that happened while the person was rendering that service; or

(b) it arose out of, or was attributable to, that service; or

(c) it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:

(i) to a place for the purpose of performing duty; or

(ii) away from a place of duty upon having ceased to perform duty; or

(d) it was contributed to in a material degree by, or was aggravated by, that service; or

(e) in the case of a factor causing, or contributing to, an injury--it resulted from an accident that would not have occurred:

(i) but for the rendering of that service by the person; or

(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or

(f) in the case of a factor causing, or contributing to, a disease--it would not have occurred:

(i) but for the rendering of that service by the person; or

(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or

(g) in the case of a factor causing, or contributing to, the death of a person--it was due to an accident that would not have occurred, or to a disease that would not have been contracted:

(i) but for the rendering of that service by the person; or

(ii) but for changes in the person's environment consequent upon his or her having rendered that service."

57. The Tribunal turned then to consider Factor 5(e) of the SoP No.74 of 1997, mindful that to meet the requirements of that Factor, Mr Callaghan would have to have smoked "at least 15 pack-years of cigarettes or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis ...", and noted Mr Colborne's agreement when questioned by the Tribunal, that unless it could be demonstrated to the satisfaction of the Tribunal that there had been an increase in cigarette consumption by Mr Callaghan during his war service, his claim would fail.

58. Mr Godwin referred the Tribunal to the SoP, submitting that Mr Callaghan's smoking habit, his addiction had commenced at the age of 14, and that to meet the requirements of the SOP, it would have to be shown that this had increased due to war service. Mr Godwin submitted that in many cases where veterans met the relevant SoP, they were 18 years old at the time of enlistment and commenced smoking during service. However, in Mr Callaghan's case, he had commenced at the age of 14, some years before that time.

59. Mr Godwin submitted that the Veteran had, at 14 years, gone into the bush and lived as an independent adult. His evidence had been that he smoked 5 - 6 cigarettes a day, and a pipe at night. He had a well established habit of smoking addiction before his service. After enlistment in the different environment of service, and with mateship, Mr Callaghan had continued to smoke, a small insignificant change perhaps, but not much more and not relevant to the terms of the SoP. His evidence Mr Godwin emphasised, was that he bought two 20 cigarette packs per week during his service which also amounted to approximately six cigarettes per day, or the Tribunal thought, at most, 10 per day. Mr Godwin also drew the attention of the Tribunal to the fact that the Veteran then ceased smoking in 1988.

60. The Tribunal was mindful that it was difficult to obtain a consistent smoking history from Mr Callaghan and accepted that the effluxion of time, and his illnesses appeared to have blurred his memory with regard to his smoking. The Tribunal did not think he was untruthful, but it had all happened a long time ago. The Tribunal was also mindful that there is provision pursuant to section 119 of the Act to take the situation of paucity of evidence, both written and oral into account, but considered that this was not of assistance to Mr Callaghan in this case.

61. The Tribunal was able to conclude that Mr Callaghan commenced smoking at the age of 14, that he smoked 5 - 6 cigarettes per day before he joined the Army, noting that his evidence was he smoked more during his stressful guard duty, and that he smoked less after discharge because he worked in the bush, finally ceasing in approximately 1987/88. However the Tribunal, in distilling some inconsistent evidence, (Mr Callaghan's oral evidence, the smoking questionnaire at T7/38 and the medical reports), could only be satisfied that the maximum Mr Callaghan consumed would have been from the two 20 cigarette packs he bought weekly during service and which he said he shared around. On the basis of the evidence before the Tribunal, there was no discernible increase in Mr Callaghan's smoking during service, although he may have smoked perhaps six, to a maximum of 10 - 11 cigarettes per day during service.

62. There was also conflicting evidence regarding the onset of Mr Callaghan's chronic bronchitis which was reviewed by the Veterans' Review Board (T16). Professor Breslin (Exhibit R2) opined that although Mr Callaghan complained of a cough back in World War II, his chronic bronchitis with pulmonary obstruction probably commenced 10 to 15 years ago. The Tribunal finds it is likely from the evidence before the Tribunal that the onset of Mr Callaghan's chronic bronchitis was at least by 1944, (Dr Hayes T16/90, Dr Gianoutsos Exhibit A4) by which time, on the basis of the Tribunal's finding regarding his smoking, he could not have smoked sufficiently to satisfy any Factors in the SoP, neither did he on the basis of evidence before the Tribunal, increase his smoking to a level sufficient to meet the requirements of the SoP.

63. The Tribunal also considered the submissions made with regard to section 196B(14) of the Act and was mindful of the decisions of Law (supra) and Keenan (supra) but did not consider they assisted the position with regard to Mr Callaghan.

64. It is possible that Mr Callaghan was exposed to cordite and other fumes during service, and the Tribunal noted from Dr Gianoutsos' evidence that some irritation may have been caused by this. Dr Gianoutsos wrote however, that "I can find no evidence of cordite as such can cause chronic bronchitis." (Exhibit A5). The Tribunal was mindful also that Mr Colborne did not pursue the effects of the exposure to cordite as a cause of Mr Callaghan's bronchitis.

65. The Tribunal could not be reasonably satisfied and convinced to the requisite standard that Mr Callaghan's smoking increased during his eligible service. In assessing all the evidence before it then, the Tribunal found that Mr Callaghan could not meet the Factor 5(e) as claimed, in SoP No.74 of 1997.

DECISION

66. The Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 18 February 1999 (T8) as affirmed by the Veterans' Review Board on 12 October 2000 (T16) to refuse the Applicant, Mr Timothy Callaghan's claim that his chronic bronchitis was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

67. The Tribunal affirms the findings of the Repatriation Commission dated 18 February 1999 (T8) as affirmed by the Veterans' Review Board on 12 October 2000 (T16) with regard to the other conditions previously claimed, namely emphysema and polycystic kidney disease, not addressed to this Tribunal. The Tribunal notes that the Applicant's chronic sinusitis has been accepted as war-caused.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr M E C Thorpe, Member

Signed: .....................................................................................

Associate

Date of Hearing 11 October 2001

Date of Decision 19 March 2002

Counsel for the Applicant Mr C Colborne

Advocate for the Respondent Mr P Godwin