Smith v Repatriation Commission [1999] FCA 1484

FEDERAL COURT OF AUSTRALIA

Smith v Repatriation Commission [1999] FCA 1484 DEFENCE FORCES – veterans' entitlements - appeal from Administrative Appeals Tribunal – pensions, allowances and other benefits – widow's claim – whether smoking-related death – whether reasonable hypothesis that veteran's commencement of smoking attributable to eligible war service – young soldier commencing smoking in camp – whether peer group pressure – whether every element of hypothesis required to be proved by evidence Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c) Veterans' Entitlement Act 1986 (Cth) s 120(3)

Critch v Repatriation Commission 43 ALR 574 applied Repatriation Commission v Tuite 29 ALR 609 applied Repatriation Commission v Bey (1997) 149 ALR 721 mentioned East v Repatriation Commission (1987) 16 FCR 517 mentioned Repatriation Commission v Stares (1996) 66 FCR 594 applied Gilbert v Repatriation Commission (1989) 86 ALR 713 applied Byrnes v Repatriation Commission (1993) 177 CLR 564 applied Lowerson v Repatriation Commission (1994) 50 FCR 252 at 269 applied Critch v Repatriation Commission (1996) 43 ALD 574 followed Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119 applied

SHIRLEY KNOLLYS SMITH v REPATRIATION COMMISSION

NO. T13 of 1999

HEEREY J 28 OCTOBER 1999 MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T13 OF 1999

BETWEEN: SHIRLEY KNOLLYS SMITH

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 28 OCTOBER 1999

WHERE MADE: MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the Administrative Appeals Tribunal dated 4 June 1999 is set aside. 3. The matter is remitted to the Tribunal for further hearing and determination according to law. 4. The respondent pay the applicant's costs of the appeal, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T13 OF 1999

BETWEEN: SHIRLEY KNOLLYS SMITH

Applicant

AND: REPATRIATION COMMISSION

Respondent

JUDGE: HEEREY J

DATE: 28 OCTOBER 1999

PLACE: MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT 1 The applicant is the widow of Clifford Arthur Smith (the veteran) who died on 11 March 1989. Mrs Smith appeals from a decision of the Administrative Appeals Tribunal affirming a decision of the Veterans' Review Board which in turn affirmed the decision of the Repatriation Commission that the death of the veteran was not war-caused within the meaning of s 8 of the Veterans' Entitlement Act 1986 (Cth)(the Act). 2 The veteran enlisted in the Australian Army during World War II and served in the Northern Territory. The Tribunal found that his service was operational service. 3 The immediate cause of death was massive pulmonary embolus which was the direct result of a hernia operation undertaken in February 1989. There was evidence that the hernia was a consequence of the veteran's smoking which had given him a persistent cough, thereby leading to increased intra-abdominal pressure. The hypothesis sought to be raised for the purposes of s 120(3) of the Act was that the smoking led to the coughing, which led to the hernia, which led to the operation, which led to the pulmonary embolus which led to the death. The first step, that is whether the veteran's smoking arose out of or was attributable to his eligible war service, was the issue on which the Tribunal found the claim failed. 4 The claim was subject to s 120A of the Act but it was accepted that the hypothesis proposed was upheld by SoP no. 72 of 1998.

Evidence before the Tribunal 5 Mrs Smith's evidence was that she met the veteran in Launceston during the war while he was in camp with the army. He was then about 19 or 20. She said that after she met him, and while he was stationed in Launceston, he started smoking. When asked why he started smoking, she said: "Well I suppose when they're in the army and everyone else is smoking they have to do the same – that's all I can say. He was a very heavy smoker in the finish, was smoking 80 cigarettes a day." 6 In cross examination she was quite insistent that he started smoking when he joined the army. She said: "I think most of his friends were smokers, because they sort of copy each other, don't they?" 7 Counsel for Mrs Smith submitted to the Tribunal that the veteran's "smoking habit commenced on and due to service." He said that the Tribunal could: "… easily come to the conclusion that the person who joins an army – joins the army or whatever branch of the service, being exposed to a different environment, a different discipline, a different way of life, surrounded by people all of whom or many of whom smoke, it can be readily inferred that it was peer pressure …"

Tribunal decision 8 The Tribunal referred to the decisions of Critch v Repatriation Commission (1996) 43 ALD 574 (Merkel J) and Repatriation Commission v Tuite 29 ALD 609 (Full Court). The latter case also involved the question of a causal connection between a veteran's smoking and his service. The Tribunal said: "The issue for the Full Court to decide was whether there was sufficient material before the Tribunal to draw the conclusion that the veteran's service contributed causally to the injury or disease. In that case there was evidence given by the applicant in relation to the circumstances at camp that caused him to start smoking, e.g. the fact that cigarettes were cheap, and other people were smoking, a certain degree of apprehension regarding his future in the military and general boredom of camp life. At page 614 Burchett and Einfeld JJ stated:- 'It is true that not everything which occurs while a man is in camp is attributable to his war-service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent's decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. It was open to the Tribunal to find the circumstances persuasive." 9 The Tribunal continued (emphasis added): "16. The cases to which the Tribunal has been referred suggest that there must be some evidence presented to connect the veteran's smoking with his service, and that the mere fact of his commencing smoking during service is not sufficient to raise a reasonable hypothesis that the death contributed to by smoking was war-caused. That was the view taken by the Tribunal and supported by Einfeld J in Cooke v Repatriation Commission 45 ALD 205. Although His Honour stated that proof as to the precise manner in which the veteran commenced and continued to smoke is not required, there must be some material presented to the Tribunal to establish a connection between the veteran's smoking habit and his war service, and said at pp. 217-218: 'The appellant contended, contrary to the tribunal's view, that the mere fact that a veteran's smoking habit commenced or resumed during war service is sufficient to raise a reasonable hypothesis that an injury contributed to by smoking was war-caused. Reliance was placed on the reasons of Davies J, when President of the tribunal, in Repatriation Commission v Hughes (1990) 13 AAR 34 in which his Honour stated at 38. '… if a serviceman commences smoking during war service, then a hypothesis will readily arise that the development of the smoking habit was causally related to the war service. The connection will be pointed to by the facts of the particular serviceman's case. Proof as to precisely how and in which circumstances smoking commenced and was continued is not required. A reasonable hypothesis is sufficient.' That opinion is not authority that the mere fact that a veteran commences smoking during war service is enough to establish a causal relationship between the smoking habit and the war service. His Honour said in fact that any connection will be pointed to by the facts of the particular veteran's case. That is, the connection between the commencement of a veteran's smoking habit and war service must be raised by the material presented to the tribunal. However, proof as to the precise manner in which the veteran commenced and continued to smoke is not required before a hypothesis based on that connection can be said to be raised.' 17. In the present case the Tribunal finds that there is not sufficient material before the Tribunal to establish such a connection. The only evidence presented in relation to the deceased's smoking was that from the applicant who was unable to verify when he actually commenced smoking. The only concrete evidence that the Tribunal has in relation to this fact is that the deceased was smoking when the applicant met him, and that he was in the Army at that time. Although the applicant was adamant that the deceased had not smoked before he joined the Army, she was unable to provide any material evidence as to the reasons why he commenced smoking. The Tribunal is thus left with no evidence connecting the deceased's smoking with his service life. The applicant's evidence in many respects was somewhat vague, for instance she was unable to recall the date of her marriage. The Tribunal accepts that the passage of time would have somewhat diminished her recollection, but nevertheless her evidence in relation to the cause of her deceased husband's smoking is deficient. The applicant was able to give very little evidence in relation to the deceased service life as she said he spoke very little about it, and was only able to comment about the long marches that he was required to undertake. There was no evidence about stress, peer pressure, or other influencing factors that may have caused him to take up smoking as was the situation in the other cases to which the Tribunal was referred in relation to this issue. 18. The Tribunal having found that there was insufficient evidence to connect the deceased's smoking with his war service, the applicant has therefore been unable to establish a reasonable hypothesis as required under s.120(3) of the Act. The Tribunal accordingly must dismiss the appeal."

Conclusion on the appeal 10 In Repatriation Commission v Bey (1997) 149 ALR 721 a five member Full Court reaffirmed the correctness of the decision in East v Repatriation Commission (1987) 16 FCR 517 that a hypothesis, to be "reasonable" for the purposes of s 120(3), must be pointed to by the facts before the decision-maker and not merely left open as a possibility. However, the Full Court in Bey was not concerned with the use of assumptions in the raising of hypotheses. The Full Court said nothing to doubt the correctness of the earlier decision in Repatriation Commission v Stares (1996) 66 FCR 594 (Black CJ, Ryan and Einfeld JJ). There the death of the veteran was due to alcoholism and the issue was whether there existed a reasonable hypothesis to connect his alcoholism with the conditions of his service. The Full Court (at 599) referred to an earlier decision of Hill J in Gilbert v Repatriation Commission (1989) 86 ALR 713 at 721 and pointed out that his Honour "… was careful in that passage and elsewhere in the same judgment to make it clear that he was not holding that there was a requirement that there be evidence to support the hypothesis at every point." 11 The Full Court in Stares went on to cite a passage from the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569 which included the following: "In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That in itself does not make the hypothesis unreasonable." 12 The Full Court in Stares continued (at 601): "By there saying that 'the material must point to some fact or facts' their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion. … Nor do we understand the High Court in Byrnes' case to say that an assumption is only permissible at the stage of determining whether or not an hypothesis is reasonable and we see no good reason why the permissible use of an assumption should be confined to that stage in the process. The question s 120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran's injury with war service: see Byrnes' case at 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question. In the present case the learned primary judge did not hold that a reasonable hypothesis for the purposes of s 120(3) may be raised by an assumed fact in isolation. The assumed fact was to be considered by the decision-maker in the light of all the other material. Much of that other material bore directly upon the hypothesis." 13 Reference might also be made to Lowerson v Repatriation Commission (1994) 50 FCR 252 at 269 and Critch, which was mentioned by the Tribunal. In the latter case Merkel J found the same error of law as had been made as in Lowerson. His Honour said (43 ALD at 583): "The AAT appeared to require direct evidence of causation rather than enquire whether the material 'points to' the facts relevant to the causation issue." 14 In my opinion the same error has again been disclosed by the reasoning of the Tribunal in the present case. The passages I have emphasised in pars 16 to 18 of the Tribunal's reasons repeatedly speak of the lack of "evidence" "connecting" conditions of the veteran's service with the acquisition of a smoking habit. 15 The hypothesis sought to be raised was not merely an abstract one. It was accepted by counsel for the Commission in argument in this Court that the temporal element was sufficiently raised. Nor was it contested that peer pressure can lead to the acquisition of a smoking habit, or that if such peer pressure came from the veteran's fellow soldiers there would be the necessary connection with his service. Thus the only remaining element needed to complete the hypothesis was that peer pressure in fact caused the veteran to commence smoking. The authorities already referred to show that such an element can, in appropriate circumstances, be raised by assumption. It does not have to be proved (at the s 120(3) stage) by evidence. 16 The Tribunal was not bound by the rules of evidence but could inform itself in such manner as it thought appropriate: Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c). It would be open to the Tribunal to take into account its ordinary experience of human nature. As Dixon CJ, Kitto and Taylor JJ said in Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119: "… ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not." 17 Mrs Smith's own comment that young men "sort of copy each other, don't they?" seems a valid observation on the human condition. The veteran at the relevant time was about 19 or 20, placed in an army camp in close proximity to other young men in an era when smoking was widespread and its dangers not appreciated even by medical experts. These were circumstances bearing on the instant case and not matters of theory, abstraction or speculation. 18 The Tribunal erred in holding in effect that the causative element of the hypothesis was not raised because there was no direct evidence establishing it. 19 The appeal will be allowed, the decision under review set aside and the matter remitted to the Tribunal for reconsideration according to law. The respondent is to pay the applicant's costs of the appeal, including reserved costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate: Dated: 28 October 1999

Counsel for the Applicant: R M Webster

Solicitor for the Applicant: R M Webster

Counsel for the Respondent: P J Hanks

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 12 October 1999

Date of Judgment: 28 October 1999