Murphy and Repatriation Commission [2007] AATA 1433 (15 June 2007)

Last Updated: 19 June 2007

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1433

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2006/135

VETERANS' APPEALS DIVISION		)
	Re		MAISIE JUNE MURPHY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

The Hon R J Groom (Deputy President)

Date 15 June 2007

Place Hobart

Decision

The Tribunal affirms the decision under review.

[Sgd The Hon R J Groom]
Deputy President

CATCHWORDS

Veterans’ Affairs – war widow’s pension – death from chronic obstructive airways disease and ischaemic heart disease – smoking – operational service – whether smoking connected to service – decision under review affirmed.

Veterans’ Entitlements Act 1975 – ss8(1),119(1)(h)

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Hill (2002) 69 ALD 582

REASONS FOR DECISION

15 June 2007

The Hon R J Groom (Deputy President)

1. This is an application by Maisie June Murphy (“the applicant”) widow of Murray John Murphy (“the veteran”) for review of a decision of the Veterans’ Review Board (“the VRB”) dated 1 August 2006.
2. On that date the VRB affirmed a decision of a delegate of the Repatriation Commission (“the respondent”) made on 29 June 2005 refusing the applicant’s claim for a war widow’s pension. Both the delegate and the VRB decided the veteran’s death was not related to his service in the Royal Australian Navy (“RAN”).
3. The hearing of this application was held at Devonport on 16 April 2007. Mr G Ralph, an RSL advocate, appeared for the applicant and Mr M Castle for the respondent. The applicant and her daughter, Mrs Colleen Ann Woodhall gave oral evidence. The Tribunal received into evidence the “T documents” lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and statutory declarations made by the applicant and Mrs Woodhall.

BACKGROUND

4. The veteran served in the RAN from 22 August 1942 until 12 October 1945. It is not in dispute that the whole of his service was “operational service”.
5. The veteran died on 2 November 1997 at the age of 75 years. The cause of his death was certified to be:
   • Chronic obstructive airways disease; and
   • Ischaemic heart disease.
6. It is contended on behalf of the applicant that the veteran was a relatively light smoker before joining the RAN, but then smoked between 40 and 50 cigarettes per day during and from the time of his war service until 1980, and that his smoking habit was caused by the stress he experienced during his service.
7. The respondent submits that the applicant’s smoking habit commenced prior to his service and is unrelated to that service.

THE ISSUE

8. The issue in this application is whether the veteran’s death results from smoking caused by his operational service.

THE LAW

9. Section 8(1) of the Veterans’ Entitlements Act 1986 (“the Act”) relevantly provides as follows:

“8(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

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

...”.

10. There is no dispute about the medical conditions which caused the veteran’s death. Mr Castle for the respondent concedes that the veteran suffered chronic obstructive airways disease and ischaemic heart disease and that those two diseases were the cause of death. He further conceded that those two diseases were indeed caused by the veteran’s smoking habit. (see Transcript p4)
11. In order to establish whether there is a sufficient link connecting those diseases to the veteran’s operational service, it is necessary to consider s120A of the Act and the four stages of analysis as prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at pages 96-97 as follows:

“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”

12. The Tribunal must first be satisfied that on all of the material before it a hypothesis has been raised connecting the veteran’s diseases to the relevant circumstances of his operational service. There is no question of fact finding at this stage.
13. It is quite clear on the evidence that a hypothesis has been raised connecting the diseases to the veteran’s operational service. That hypothesis is that whilst on operational service with the RAN he suffered stress caused by the circumstances of his service and to cope with that stress the veteran became a very heavy smoker. He continued that heavy smoking habit until the 1980’s. The hypothesis is that the smoking caused his two diseases which eventually led to his death in 1997. There is evidentiary material before the Tribunal pointing to a factual basis for the hypothesis. Again, Mr Castle concedes that a hypothesis is present and further that the hypothesis is “reasonable”. (see Transcript p.4)
14. To be “reasonable” a hypothesis must be consistent with the “template” to be found in the relevant Statement of Principles (SoP’s) determined under s196B(2) or (11). In this application the relevant SoP’s are:
    • Instrument No 30 of 2004 concerns “Chronic Bronchitis and Emphysema“ (In particular factor 5(a) relating to smoking)
    • Instrument No 53 of 2003 amended by No 9 of 2004 concerning “Ischaemic Heart Disease” (in particular factor 5(e) relating to smoking).

In addition to Mr Castle’s very proper concession, the Tribunal is itself satisfied that the hypothesis for each disease has significant support in the evidence before it and is consistent with the template in each of the SoP’s. The hypothesis is therefore reasonable.

15. As the hypothesis is reasonable the Tribunal must consider, pursuant to s120(1) of the Act whether it is satisfied beyond reasonable doubt that the veteran’s condition was not a "war-caused disease" within the meaning of s8 of the Act. Under this unique provision it is necessary that the Tribunal be satisfied to the stringent standard of proof. The Tribunal is so satisfied if it is satisfied beyond reasonable doubt either that one or more of the facts supporting that hypothesis does, or do, not exist or that a fact inconsistent with that hypothesis does exist. (See Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 and Repatriation Commission v Hill (2002) 69 ALD 582 at 595).

THE FACTS

16. The central point at issue in this application is the extent to which the veteran smoked prior to enlisting in the RAN in 1942 and whether there was any marked increase in his smoking habit during his period of service.
17. The veteran gave an account of his smoking habit when interviewed in 1962 and 1983. Those accounts are now disputed by the applicant, other family members and a by a former friend and a work colleague. The veteran’s accounts are disputed, not because of any dishonesty on his part, but based on the proposition that he was not a person who was good at remembering past events, dates and times.
18. A most significant piece of evidence is a signed statement made by the veteran on 5 January 1983. The statement was written by a medical officer on the occasion of a consultation and examination in relation to a claim for disability made by the veteran. It was signed by the veteran. The applicant said in evidence that the signature was her late husband’s signature. The veteran stated as follows:

“I gave up smoking 12 months ago after Dr McCoy who was treating my chest told me if I didn’t do as he told I would in my grave before long. That frightened me and I gave it away. I used to smoke about 20 a day. I started when I was 8 or 10 but certainly regularly when I was 14. I smoked just the same when I was in the Navy.” (See T15)

19. After reading that statement and a number of other records of statements made by the veteran and included in medical reports in the T documents the Tribunal is impressed by the very open and honest way the veteran spoke about his medical conditions and past experiences. There is no convincing reason why his sincerity and honesty should be doubted.
20. As mentioned above, the veteran said in his signed statement of 5 January 1983 that he smoked “... about 20 a day”. It is significant that this is consistent with a statement he had made in 1962, some 21 years earlier. (See T6 p11). In notes recorded by a medical officer in the course of an interview with the veteran in 1962, there is an entry as follows: “Smoker – 20/day”.
21. The applicant said she met the veteran in 1945 when he was awaiting discharge from the RAN. Mrs Murphy therefore had no direct personal knowledge of her late husband’s smoking habits prior to joining the RAN. The applicant said her husband was a heavy smoker when she met him in 1945. In commenting on the veteran’s smoking habit before he joined the RAN, the applicant said in evidence “... he just said that he smoke when he was young, just as a social thing or out with friends.” The applicant said she believed he smoked heavily after his navy experiences “... because of his nerves”.
22. In her statutory declaration dated 29 September 2006 declared as follows:

“Murray was full of bravado and said he tried smoking at an early age. He told me that he did not smoke all the time before his enlistment. He said he smoked socially with his friends and had a “quiet one” when fishing with his mates.

We married in 1946 after which I purchased his cigarettes for him with the weekly shopping. He smoked 40 – 50 cigarettes a day between 1945 – 1980 or so. I used to question him as to why he smoked so much. He only opened up to me on a few occasions when he told me of the stress which he experienced as a result of his “navy service”. He also stated that he smoke to “calm his nerves”.

He became very emotional and tears welled in his eyes each time he tried to talk about his war service.”

The applicant confirmed in her oral evidence that her husband would smoke 40 – 50 per day. She said she knew this because “.... I bought the cigarettes”. (Transcript p7).

23. Mrs Woodhall assisted her mother in completing the statutory declaration. She said she remembered her father smoking, she said “he always smoked when we were growing up”. Mrs Woodhall said her father was not suffering any form of dementia when he made his 1983 statement but also said that he was “...very lackadaisical about events and times”.
24. The applicant’s son Mr Roderick Murphy did not give evidence. He had made a written statement in 2005 (T.44) in which he stated:
    • “My mother has stated that for many years after my father was discharged from the RAN he smoked many more cigarettes than the 20 he stated in DVA documents.
    • I remember clearly that he would leave home smoking before 0800 hrs. each day and return after being at work all day at approximately 1800 – 1900 hrs. smoking as he arrived.
    • My father worked in an industrial environment and was able to smoke continually throughout the day.
    • I remember that my father would be smoking around the house during the evenings and at weekends.
    • I recall that because of his traumatic war time experiences, bad memories and nightmares he would get out of bed regularly after waking and smoke to try and ease the effects of these stresses.
    • I recall from an early age that my father did always have poor health because of his continual excessive smoking. He had symptoms of C.O.A.D. for many years.
    • My father’s excessive smoking caused by the trauma and stress of his service in the RAN must be linked to his poor health and the addictive activity over many years was the “direct” cause of his death.
    • The “excessive amount” of smoking not the stated amount should be considered as being the cause of the C.O.A.D., bad health and heart disease which were the causes of his death.
    • The “excessive amount” smoked was more than likely caused by his traumatic war time experiences.”

It is noted that Mr Roderick Murphy describes his father’s smoking as “excessive” but did not actually indicate of his own knowledge how many cigarettes he smoked each day.

25. The T documents also include brief statements from Mr Keith Hobson and Mr Pentreah Hill. (see T51 and 52) Those two statements were not of persuasive value to the Tribunal and appear to be quite inconsistent with the veteran’s own signed statement that he did smoke “regularly” at a young age and before he enlisted in the RAN.
26. The documentary evidence discloses some inconsistencies concerning the date when the veteran stopped smoking. It was argued by Mr Ralph that these inconsistencies showed that the veteran was “extremely forgetful” about when he gave up smoking, and so his estimates of how many cigarettes he actually smoked were equally unreliable. The contention is that his 1983 signed statement could not be relied upon.
27. In a medical report dated 28 October 1991, Dr D R McTaggart said that the veteran “... is an extraordinarily difficult historian”. The Tribunal interprets this statement as suggesting that Mr Murphy had significant trouble explaining his symptoms. That appears to be the point Dr McTaggart makes in the remaining words of the paragraph when he said “... and today I really did need an exercise test to get some idea of the symptoms of which he was complaining and his degree of physical limitation”.
28. At this fourth stage of the Deledio analysis, the Tribunal is called upon to make findings of facts. The Tribunal accepts that the veteran was an honest person and that when he made his signed statement of 5 January 1983 he fully understood what he was stating.
29. It is significant that neither the applicant nor her daughter Mrs Woodhall had direct personal knowledge of the veteran’s smoking habits before he joined the RAN and also during his period of service.
30. The applicant said she believed her husband smoked 40 – 50 cigarettes per day. She said she knew this because she purchased the cigarettes.
31. Just as the Tribunal does not doubt the honesty of the veteran it also finds that the applicant is an honest person. She says he may have smoked as few as 40 per day. This is clearly an estimate on her part.
32. The Tribunal recognises that the veteran may indeed have smoked more than the 20 mentioned in his statement of 5 January 1983. He did say he smoked “... about 20 a day”. There may have been some degree of understatement particularly as he was then speaking to a medical practitioner. He may not have wanted to appear reckless by admitting that he smoked a higher number of cigarettes and was therefore placing himself at risk. The true figure may be more than 20 per day.
33. In the Tribunal’s view, however, the most significant part of the veteran’s statement of 5 January 1983 was the statement that he was smoking “...regularly...” at a young age and well before he joined the RAN and that “I smoked just the same when I was in the navy”. The Tribunal accepts those two statements as truthful and accurate.

CONCLUSION

34. The Tribunal takes into account the totality of the evidence, the very stringent standard of proof which applies in this application and also the matters set out in s119(1)(h) of the Act.
35. It finds that the veteran commenced smoking heavily and regularly before he enlisted in the RAN and his smoking habit continued at approximately the same level during his service and until he stopped smoking in the 1980’s.
36. The Tribunal is satisfied beyond reasonable doubt that the factual foundation of the raised hypothesis does not exist and therefore that there is no causal connection between the veteran’s smoking habit and his operational service.

DECISION

37. The Tribunal affirms the decision under review.
    

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing 16 April 2007

Date of Decision 15 June 2007

Representative for the Applicant Mr G Ralph RSL Advocate

Counsel for the Respondent Mr Michael Castle

Solicitor for the Respondent Department of Veterans' Affairs

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