Neilsen and Repatriation Commission [2000] AATA 83 (10 February 2000)

Last Updated: 1 March 2000

DECISION AND REASONS FOR DECISION [2000] AATA 83

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/799

VETERANS' AFFAIRS DIVISION )

Re Barbara Joy NEILSEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Dwyer

Date 10 February 2000

Place Melbourne

Decision The Tribunal sets aside the decision under review and in substitution decides that the death of Mr Neilsen was war-caused within the meaning of that term in s 8 of the Veterans' Entitlements Act 1986.

(Sgnd) Joan Dwyer

Senior Member

VETERANS' AFFAIRS - death due to cerebrovascular accident - whether war-caused - whether material raises a reasonable hypothesis connecting death with service - smoking a factor in relevant SoP - concession that quantity and duration of veteran's smoking satisfied the requirements of the SoP - whether smoking habit was "service related" - applicant believes that veteran started smoking during naval service - enlisted at age 17 and had little money prior to service - cigarettes readily available to servicemen - consideration of "reasonable hypothesis" standard of proof - whether material raises or points to a reasonable hypothesis - hypothesis not fanciful, impossible, incredible or not tenable or too remote or too tenuous - whether SoP requirement that smoking be related to relevant service reflects the requirement of s 120(3) that there be a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran - role of assumptions in raising a reasonable hypothesis - decision set aside

Veterans' Entitlements Act 1986 ss 120(1) and (3)

Repatriation Act 1920 s 47(2)

Keeley v Repatriation Commission [1999] FCA 1103

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrnes v Repatriation Commission (1993) 116 ALR 210

Cooke v Repatriation Commission (1997) 45 ALD 205

East v Repatriation Commission (1987) 74 ALR 518

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Bey (1997) 47 ALD 481

O'Brien v Repatriation Commission (1985) 155 CLR 422, 58 ALR 119

REASONS FOR DECISION

10 February 2000 Mrs Joan Dwyer, Senior Member

1. This is an application for review of a decision of the Repatriation Commission ("the Commission"), made 18 August 1997 and affirmed 14 May 1999, which decided that the death of Mr Neilsen was not war-caused within the meaning of that term in the Veterans' Entitlements Act 1986 ("the Act").

2. At the hearing, Mr A Smith, a solicitor, appeared for the applicant. Mr K Rudge, an advocate with the Department of Veterans' Affairs ("DVA"), appeared for the Commission.

3. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibit tendered during the hearing, being the transcript of the Veterans' Review Board ("the VRB") hearing. Mrs Neilsen gave evidence.

4. Mr Neilsen died at age 68 on 8 November 1996. His death certificate gives the cause of death and duration of last illness as follows (T9 p57):

Bronchopneumonia - days;

Cardiac Failure - days

Left Cerebrovascular Accident - weeks

5. Mr Neilsen did not commence service with the Royal Australian Navy ("the RAN") until 20 November 1945 which was after the cessation of the period of hostilities as defined in s 5B of the Act. However the respondent has conceded that his service from 20 November 1945 to 4 August 1950 includes a period from 20 November 1945 to 3 January 1949 which is operational service within the meaning of that term in s 6A of the Act.

6. As Mr Neilsen had operational service the appropriate standard of proof is that set out in ss 120(1) and (3) of the Act. They provide as follows:

120. (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

....

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

7. Because the claim was lodged after 1 June 1994, s 120A is applicable. There has at all relevant times been a Statement of Principles ("SoPs") issued by the Repatriation Medical Authority ("RMA") in respect of the condition of cerebrovascular accident. The Tribunal must apply the relevant SoP in deciding whether or not the material before the Tribunal raises a reasonable hypothesis connecting Mr Neilsen's death with the circumstances of his particular service.

8. In Keeley v Repatriation Commission [1999] FCA 1103 Heerey J held that the appropriate SoP to apply is that existing at the time of the primary decision. The relevant SoP as at the date of the decision of the Commission, namely, 18 August 1997 was Instrument No 142 of 1996. It has subsequently been revoked and replaced by Instrument No 7 of 1999, but in fact there is no difference in the only relevant factor. Instrument No 142 of 1996 provides as follows:

Factors that must be related to service

4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.

Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person's relevant service are:

. . . .

(j) for cerebral ischaemia only, smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or

. . . .

9. The evidence is that Mr Neilsen smoked from the time of his discharge from the RAN in August 1950, until his death on 8 November 1996. Mrs Neilsen first met him in about August 1950 when he was still in uniform. He came to his former employer, where she worked, to see about getting his pre-service job back. Mrs Nielsen said he was smoking about 10 per day at that time. She said that he gradually increased the rate of smoking until sometime in the 1980's when he reduced his smoking to 20-30 cigarettes per day. He continued smoking at that rate until his final hospitalisation to Western General Hospital following a stroke on 27 July 1996. He was then transferred to the Sunshine transition ward and finally a nursing home in Sunshine where he died on 8 November 1996 (T docs pp75-78).

10. The respondent has conceded in paragraphs 11-13 of its statement of facts and contentions that cerebrovascular accident was a cause of death, and that the quantity and duration of Mr Neilsen's smoking satisfies the requirements of the relevant factor of the SoP. The matter as to which there is an issue, is whether Mr Neilsen's smoking habit was service related, as required by paragraph 4 of the SoP.

11. The determination of that issue demonstrates the difficulty in applying the reasonable hypothesis test set out in the Act. Mrs Neilsen gave evidence, frankly and openly. She said that she does not know when her husband began to smoke, but she believes he began to smoke during service in the RAN. She said she does not recollect him ever telling her so, but that is the belief she has had. She explained the reasons for her belief as set out in a statement dated April 19 1999, included in the T documents at p15

[I]t is most unlikely he smoked as he was but 17 year old when he joined up. Furthermore, Angus came from a working class family and money was very scarce. His mother did not smoke but his father did. He was a very strict man but in view of their financial conditions and mores of the time he would have discouraged his son from smoking.

12. That is all the evidence Mrs Nielsen could give as to when and why Mr Neilsen began to smoke. Her statement, (T docs p15) includes a paragraph stating that Mrs Neilsen believed that her husband took up smoking because his mates smoked and would have encouraged him to take up the habit, and because it would have helped him cope with the stresses of service life, and because cigarettes were freely available during service and smoking generally was encouraged. In her evidence Mrs Neilsen said that she did not actually know those matters of her own knowledge. They had been suggested to her by the person who helped her prepare the statement.

13. Mrs Nielsen described her husband's service. She said he was at sea a lot. Approximately 130 days of his service were spent on a minesweeper. She said he went to a lot of places on ships including England and New Zealand. She said he basically enjoyed his Navy life.

14. Mrs Neilsen's evidence was simply that she thought her husband was too young and would have been too poor to have started smoking prior to his RAN service, and that he would have had more money and opportunity to do so once he commenced his service. She also said that her brother-in-law had told her that cigarettes were very hard to get during the war and shops kept them for their customers. She thought it unlikely that Mr Nielsen would have been sold cigarettes, even if he had the money.

15. The evidence was that Mr Nielsen had left school at 14, and worked as a driver's assistant delivering soft drinks to hotels in order to earn income to help support the family, as his father did not work. Mr Rudge suggested to Mrs Nielsen that Mr Neilsen might have started smoking while he was earning money and working as a driver's assistant, perhaps under the influence of the older driver. Mrs Neilsen could not dispute that possibility, but she said she thought it unlikely that Mr Nielsen would have retained enough pocket money to buy his own cigarettes, or would have been sold them at his age.

16. As to the issue of the significance of his parents' disapproval of him smoking, Mrs Neilsen was asked at the hearing before the VRB and at this hearing, to comment on the fact that her husband had tattoos when he went for his enlistment medical in June 1945 at age 17. She agreed that she did not think that his parents would have approved, but she suggested that probably they did not know about his tattoos.

discussion of the law

17. This is a difficult area of law. The High Court has twice considered the operation of s 120(1) and (3) of the Act in Bushell v Repatriation Commission (1992) 109 ALR 30 and Byrnes v Repatriation Commission (1993) 116 ALR 210. Those decisions did not clarify all the problems as a Full Bench of the Federal Court sat on Repatriation Commission v Bey (1997) 47 ALD 481, because it was perceived that there may be some inconsistency between the two Full Court decisions of Cooke v Repatriation Commission (1997) 45 ALD 205 and East v Repatriation Commission (1987) 74 ALR 518. Since Bey we have had the decision of Repatriation Commission v Deledio (1998) 49 ALD 193, a decision of the Full Court of the Federal Court.

the applicant's submission

18. Mr Smith explained that the hypothesis relied upon was that Mr Neilsen developed a smoking habit during service and that it contributed to the cerebrovascular accident which lead to his death. Mr Smith submitted that the only task for the Tribunal was to follow the four steps referred to by the Full Court in Repatriation Commission v Deledio at p206. He said that if the Tribunal followed those steps it would conclude that there was a reasonable hypothesis that Mr Neilsen's cerebrovascular accident was war-caused by reason of his war-caused smoking habit. The four steps are set out at p206 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). . . .

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.

step 1

19. Mr Smith submitted that the material before the Tribunal as to Mrs Nielsen's belief about her husband's smoking habit, points to a hypothesis connecting Mr Neilsen's death with a war-caused smoking habit. Mr Smith relied on the words "No question of fact finding arises at this stage".

step 2

20. It is agreed that there is a SoP, namely, SoP 142 of 1996 in respect of cerebrovascular accident.

step 3

21. Mr Smith submitted that as there is a SoP in force, the Tribunal must determine that the raised hypothesis is reasonable, because the hypothesis of a war-caused smoking habit is consistent with the "template" to be found in paragraph 5(j) of the SoP. That is clearly so.

step 4

22. Mr Smith submitted that the Federal Court has clearly explained that the only fact finding task for the Tribunal is to determine whether it is satisfied beyond reasonable doubt that Mr Neilsen's smoking habit was not war-caused. He also submitted that the evidence could not satisfy the Tribunal beyond reasonable doubt that Mr Nielsen's smoking habit was not war-caused. That is also clearly so.

the respondent's submission

23. The respondent stated in paragraphs 17, 18 and 19 of the Statement of Facts and Contentions:

17. The Full Court of the Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 said at p.730:

"This court restates the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority."

18. The applicant does not know when her husband commenced smoking or what was the cause of his commencement. A possibility is advanced that he might have commenced smoking during service and that it might be causally related to service. However, the contention does not go beyond a mere possibility. The applicant's father was a smoker and the applicant was in the workforce prior to service, both factors which may have had an influence on his commencement of smoking.

19. The respondent submits that the material does not point to a commencement date of smoking or to a cause of smoking. The hypothesis advanced is not pointed to by the facts, but left open as a mere possibility. In the terms used by Heerey J. in Deledio, which were approved by the Full Court, the hypothesis is "not tenable, too remote or too tenuous" to be a reasonable hypothesis.

24. The crux of this matter is whether Mrs Neilsen's evidence as to her belief that Mr Neilsen started smoking during service raises a reasonable hypothesis connecting his smoking habit with the particular circumstances of the service he rendered, or whether it does no more than raise the possibility that his smoking habit was war-caused. The process of deciding whether or not the material before the Tribunal points to a hypothesis connecting death with the circumstances of service was considered in Repatriation Commission v Bey (1997) 47 ALD 481. The reasons of Northrop, Sundberg, Marshall and Merkel JJ referred to the history of the legislation and pointed out that s 120(3) of the Act reflects the decision of the government of the day to give legislative form to the dissenting judgment of Brennan J in O'Brien v Repatriation Commission (1985) 155 CLR 422, 58 ALR 119

25. Their Honours Gibbs CJ, Wilson and Dawson JJ, in O'Brien, had held at CLR p434, ALR p128 that "at the end of the day there is only one question for the determining body to answer; is it satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim?". Their Honours explained at CLR pp433-434, ALR p127

The following considerations must be borne in mind:--

(a) (b) (c) (d) (1980) 29 ALR 64 at 74v Minister of Pensions and National Insurance [1967] 1 QB 238 at 242). (quoted from 58 ALR 127)

26. Brennan J dissented in O'Brien. He said at CLR 437-8 and ALR p130: :

A provision that a claim be granted unless a negative appears beyond reasonable doubt suggests that an absence of material tending to prove the existence of the criteria of eligibility must result in the granting of a claim. The provisions of s 47(2) need not be construed to have and, in my opinion, do not have so absurd an operation.

His Honour added at CLR p438, ALR p131:

Section 47 thus operates in a context where an investigation has been carried out with reasonable diligence and where all the relevant facts ascertained in the investigation and furnished by the claimant are before the decision-maker. If the facts thus ascertained support a reasonable hypothesis that the claimant is entitled to a benefit under the eligibility provisions of the Act, the Board or the Commission must determine to grant the claim. If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt. If the Board or Commission is satisfied that no reasonable hypothesis of entitlement is supported by the facts or that any such reasonable hypothesis is dispelled beyond reasonable doubt, the Board or Commission should reject the claim. Where, on the whole of the material no reasonable hypothesis of entitlement arises, there are "insufficient grounds for granting the claim". . . .

ed beyond reasonable doubt. The inference arises from the absence of any material to suggest the contrary.

27. Justice Brennan at CLR p 438, ALR p130 explained that in his opinion the provisions of s 47(2) of the Repatriation Act 1920 ("the 1920 Act") did not hav that a determination is made where an investigation has been carried out with reasonable diligence. He then continued at p131: e

If the facts thus ascertained support a reasonable hypothesis that the claimant is entitled to a benefit under the eligibility provisions of the Act, the Board or the Commission must determine to grant the claim. If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt. If the Board or Commission is satisfied that no reasonable hypothesis of entitlement is supported by the facts or that any such reasonable hypothesis is dispelled beyond reasonable doubt, the Board or Commission should reject the claim.

His Honour explained that where, after an investigation has been carried out with reasonable diligence, there is simply no material to raise hypothesis that the requisite connection exists between a morbid condition and war-service, the absence of such a connection can be inferred beyond reasonable doubt.

28. The majority of the Full Bench in Bey explained that s 47 of the Repatriation Act 1920 ("the 1920 Act") was amended shortly after the decision in O'Brien, and that in introducing the amendment the Minister had stated that the new provisions were intended to adopt the scheme of Brennan J's dissenting judgment in O'Brien. (Parliamentary Debates, House of Representatives, 16 and 17 May 1985 p2646). Their Honours commented that s 120 of the Act demonstrated the same intention.

29. The majority judges in Bey then referred to the decision of the Full Court in East, where the Court approved the well known passage from the decision of the VRB in Stacey and Repatriation Commission (26 June 1985, unreported). The VRB there pointed out that the word "reasonable" implies that what is required is more than a mere hypothesis. The Full Court in East said, at p534, "a reasonable hypothesis requires more than a possibility; not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."

30. In this matter Mrs Neilsen's evidence raises a possibility which is not fanciful or unreal and which is consistent with the known facts as to her husband starting smoking during service. She relied on some facts, such as her husband's relative youth, at nearly 18, when he joined the RAN, and the fact that prior to service he contributed a substantial part of his weekly earnings to his family, and the difficulty purchasing cigarettes during the war, as supporting her hypothesis. Do those facts point to the hypothesis or merely leave it open?

31. In discussing the judgments of Einfeld and Lee JJ, in Cooke, the majority judges in Bey, at p489, criticised the conclusion:

[T]hat the mere possibility of a connection between a disease and war-service is sufficient to constitute a "reasonable hypothesis", on the ground that any hypothesis is no more than a possibility.

Their Honours in Bey said that conclusion:

[I]gnores the fact that the expression in question is not "hypothesis" but "reasonable hypothesis". While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.

Their Honours in Bey also pointed out that the reasoning which concluded that the mere possibility of a connection between the disease and war-service was sufficient to constitute a reasonable hypothesis, on the ground that any hypothesis is no more than a possibility, was inconsistent with what was said by the High Court. In Bushell Mason CJ, Dean and McHugh JJ said at p34:

The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ("the raised facts") which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.

That passage was quoted with approval in Byrne at p 214.

32. Their Honours in Bey stated at p490:

Any doubt that attends the status of East as a correct exposition of the law relating to s 120 (3) should be dispelled. This court restates the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority.

. . .

Whether material raises a "reasonable hypothesis" for the purposes of s 120 (3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904. For the reasons it gave, the tribunal was entitled to discard Mr Hadley's evidence. That left the evidence of Dr Mackay and Dr Hall. Neither put forward material which pointed to the hypothesis advanced by the respondent. Neither went further than to say that the suggested cause of the disease was a possibility. Since the cause of the disease is not known and they were not able to say when it was contracted, they could not put it higher than that. In our view the tribunal was entitled to conclude that in those circumstances the material did not raise a reasonable hypothesis connecting the respondent's rheumatoid arthritis with his war service.

33. Justice Nicholson, in Bey, in separate but concurring reasons, explained that the only question raised by the appeal was whether the requirement for material to raise a reasonable hypothesis is satisfied by evidence capable of being characterised as raising only a "mere possibility". His Honour expressed some reservations about the use of the terminology a "mere possibility", which he said clouded the proper understanding of the issue. He regarded it as preferable to approach the application of the sub-section in the manner made apparent by the decisions of the High Court, that is by searching for material "which raises" a reasonable hypothesis. He said that a hypothesis is not raised by the material if there is evidence that it cannot be excluded, but it is not otherwise raised.

34. Nicholson J summarised what he considered to be the effect of the authorities at p493:

(1) For a reasonable hypothesis to arise, what is required is more than a mere hypothesis. Something more than a possibility consistent with the known facts is required: East at FCR 531.

(2) A hypothesis which is fanciful, impossible, incredible or not tenable or too remote or too tenuous will not be a reasonable hypothesis: East at FCR 531. The hypothesis must not be fanciful or unreal: East at FCR 531.

(3) A hypothesis can be reasonable without being proved and in that sense may be theoretical: East at FCR 531; Bushell at CLR 414-15.

(4) Nevertheless there must be some material which points to some fact or facts (the raised facts) which support the hypothesis and from which the hypothesis can be regarded as reasonable if the raised facts are true: Bushell at CLR 414. It is from the evidence that the raising of a reasonable hypothesis comes: Bushell at CLR 427. This means the material before the commission must raise some fact or facts which give rise to the hypothesis: Byrnes at CLR 569-70. It will be this which gives a degree of acceptability or credibility to the hypothesis: East at FCR 531.

. . .

35. Mrs Neilsen readily conceded that she does not know when her husband started smoking. All she can do is attempt to understand the situation he would have been in, more than five years before she met him. She said he had not discussed that issue with her. In her statement (T15) she said, "during those days smoking was a socially accepted habit which did not raise much conversation". Asked whether her husband smoked prior to service, Mrs Neilsen said "In my belief, I don't believe he did, no. I've got no proof, but I don't believe he did". (trans. p8) As already explained she gave reasons pointing to Mr Neilsen having started smoking in the Navy. She specified his youth when he enlisted, the facts that cigarettes were freely available to servicemen and hard to get in civilian life in 1944 or 1945, and that Mr Nielsen would not have had much money to buy them prior to service, as he gave most of his money to his family.

36. It is quite possible that Mr Neilsen may have started smoking during service for the reasons specified by Mrs Neilsen. That possibility could not be characterised as "fanciful, impossible, incredible or not tenable or too remote or too tenuous". It is in fact quite likely. On the other hand, as pointed out by Mr Rudge, Mr Neilsen may have already been a smoker when he enlisted after three years of employment as a driver's assistant delivering soft drinks to hotels. Even though Mrs Neilsen believes it to be the case, there is no evidence that Mr Neilsen's father, who was himself a smoker, would have had any objection to his son taking up smoking, nor is there any evidence as to the details of the financial arrangements between Mr Neilsen and his parents during the period of almost four years when he was working before service. Although there is clearly doubt about the question when Mr Nielsen commenced to smoke, I consider I am obliged to find that Mrs Nielsen's evidence raises a reasonable hypothesis that he started smoking during his service and that his smoking was related to his relevant, service up because of the ready availability of cigarettes to servicemen.

37. The steps outlined by the Full Court in Deledio, as set out in paragraph 18 of these reasons, indicate that once a reasonable hypothesis which fits the template in the SoP is raised, the claim "must succeed" unless I am satisfied beyond reasonable doubt that the death was not war-caused. I cannot be satisfied beyond reasonable doubt that Mr Neilsen did not start smoking during his relevant service.

38. I have had some concern as to whether the requirement in the SoP that Mr Nielsen's smoking be related to "any relevant service" rendered by Mr Nielsen adequately reflects the requirement in s 120(3) of the Act that there be reasonable hypothesis "connecting the . . . death" with "the circumstances of the particular service rendered by" Mr Nielsen. There have been a number of decisions on the necessary connection between smoking and service. Some of them pre-date the SoPs which only apply to claims made on or after 1 June 1994. Others are more recent.

39. This matter is similar to Smith v Repatriation Commission [1999] FCA 1484. Mrs Smith's evidence was that when she met her husband he was in the Army and did not smoke, but that he started smoking later on in his service, while he was stationed at Launceston. The only reason she gave for him starting smoking, was that she thought there was peer pressure during that later service.

40. The Tribunal in Smith referred to the Federal Court decision of Critch v Repatriation Commission (1996) 43 ALD 574 and to the Full Court decision of Repatriation Commission v Tuite (1993) 29 ALD 609. In those two decisions the Court had recognised that something more than a mere temporal connection with service was required to establish that a smoking habit was attributable to a veteran's service. However it is important to bear in mind that in neither case was there any reliance on a SoP.

41. In Critch Merkel J explained that a hypothesis may assume a fact such as that stress and peer group pressure led to a veteran taking up smoking. There was medical evidence to that effect. The evidence established that Mr Critch had been "right in the fighting in New Guinea, Crete and Palestine, and had suffered a gunshot wound." Merkel J said at p581-582:

It is likely that as a consequence of the passage of time and the veteran's refusal to discuss his war service during his lifetime, no evidence was adduced to establish that stress or peer group pressure in fact contributed to or caused the veteran's smoking habit. Section 119 (1) (h) (i) ensures that no adverse inference is drawn as a result of the failure to call evidence on that issue. Indeed, the subsection states that difficulties in that regard, which are attributable to the passage of time, "shall" be taken into account.

The reasonable hypothesis said by the applicant to be raised by the material was that stress and peer group pressure in the course of the veteran's operational service contributed to or caused his decision to commence smoking and acquire the smoking habit which led to the coronary artery disease which resulted in his death.

Although there was no material establishing that stress or army peer group pressure in fact contributed to or caused the veteran's decision to commence smoking the material or contributed to the commencement of his smoking during his service.

His Honour allowed the appeal from the decision of the Administrative Appeals Tribunal which had rejected the widow's claim. He pointed out that both "fighting" and "injury" were situations inherently likely to involve stress. He held that the AAT had incorrectly placed an onus on the applicant and had misconceived its function and should have had regard to the unchallenged evidence of the medical experts.

42. In this matter there is no evidence of stress on service and no medical evidence. In that regard it is closer to Tuite where Mr Tuite gave evidence that he started smoking within 14 days of entering camp. The circumstances of service on which he relied were that cigarettes were cheap, that other people were smoking, and that while in camp he had "a certain degree of apprehension as regards his future in the military." The Tribunal upheld his claim even though the service was eligible service and not operational service and thus the "reasonable satisfaction" standard of proof in s 120(4) was applicable. The Full Court found no error in the decision of the Tribunal. Davies J said at p611:

Eligible war service encompasses not only active service but all the incidents of service, such as life in camp.

His Honour added at p612:

If the circumstances of eligible war service provide an operative cause contributing to the serviceman's injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.

Burchett and Einfield JJ, at p614, quoted with approval the comment by the Tribunal that it was not sufficient simply to find a temporal connection, 'what was required was "something within the applicant's military service which has caused him to start smoking". The Tribunal accepted that it was circumstances whilst he was in camp that contributed to Mr Tuite's smoking. It pointed out that he "was in a milieu totally different to that which he had experienced before his call-up".

43. In Smith the evidence of Mrs Smith was that her husband had started smoking during service, but the only circumstance of service on which she relied was peer pressure. The Tribunal referred to Cooke v Repatriation Commission (1996) 45 ALD 205 as authority for the view that there must be "sufficient material before the Tribunal to establish" a connection between smoking and service. It stated in paragraph 17 of its reasons, as quoted by Heerey J:

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.

44. Heerey J allowed the appeal. He held that a reasonable hypothesis does not require evidence at every point but "can, in appropriate circumstances, be raised by assumption". He added at paragraphs 17 and 18:

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.

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.

45. In this matter Mrs Nielsen pointed only to the ready availability of cigarettes on service as a reason why her husband might have started smoking. Her statement also refers to peer pressure and stresses of service life although Mrs Nielsen conceded that she had no knowledge of those matters. The comments of Heerey J in Smith are equally applicable to this matter:

The veteran at the relevant time was about [18-23], placed in [the Navy] 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.

46. The evidence establishes that Mr Nielsen was young and had little money to spend when he enlisted, and that he smoked on discharge. Mrs Nielsen's evidence raises possibilities or assumptions of ready availability of cigarettes during service, peer pressure, a change of milieu to life in a ship and the commencement of smoking during service.

47. I must apply the steps laid down by the Full Court in Deledio and the comments of Heerey J in Smith. The material before the Tribunal does raise a reasonable hypothesis that Mr Neilsen started to smoke during his Naval service due to the ready availability of cigarettes to servicemen, and due to his distance from parental supervision and perhaps also due to other factors which can be assumed such as peer pressure and change of milieu. Thus s 120(3) of the Act is satisfied. I cannot be satisfied beyond reasonable doubt, under s 120(1), that Mr Nielsen did not start to smoke at some time during his relevant service. Therefore I must find, under s 120(1), that the material raises a reasonable hypothesis that his smoking was service related. Applying the relevant SoP, I find that Mr Neilsen's death by cerebrovascular accident was a war-caused death.

48. The decision under review will be set aside. In substitution I find that the death of Mr Neilsen was war-caused withing the meaning of that term in s 8 of the Veterans' Entitlements Act 1986.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: Anne O'Rourke

Associate

Date/s of Hearing 14 December 1999

Date of Decision 10 February 2000

Counsel for the Applicant Nil

Solicitor for the Applicant Mr A Smith

Counsel for the Respondent Nil

Solicitor for the Respondent Nil

Departmental Advocate Mr K Rudge