Pritchard and Repatriation Commission [2002] AATA 459 (14 June 2002)

Last Updated: 20 June 2002

DECISION AND REASONS FOR DECISION [2002] AATA 459

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2002/4

VETERANS' APPEALS DIVISION )

Re MARIE KATHLEEN PRITCHARD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date 14 June 2002

Place Hobart

Decision The decision under review is set aside and in substitution therefor, a decision that the application of Marie Kathleen Pritchard for a widow's pension in respect of her late husband, Mark Marcel Pritchard, is accepted on the basis that his death was war-caused.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Appeals - disability - eligible war service - widow's pension - onset of condition cause of death - reasonable hypothesis - Statement of Principle (SOP) - liver failure - metastatic adeno carcinoma - unknown primary site - cigarette consumption - Veterans' Review Board (VRB).

Legislation and Principles:

Veterans' Entitlements Act 1986 - ss120(1), 120(4) and 120B.

Statements of Principles:

* Instrument No 18 of 2000, malignant neoplasm of the bileduct

* Instrument No 24 of 1996, as amended by Instrument No 6 of 1998,re malignant neoplasm of the colon

* Instrument No 56 of 1997 re malignant neoplasm of the pancreas

* Instrument No 26 of 1996, as amended by Instrument No 4 of 1998, re malignant neoplasm of the rectum

* Instrument No 68 of 1997, as amended by Instrument No 10 of 1998, re malignant neoplasm of the stomach.

Guide to Assessment of Rates of Veterans' Pension (GARP), Fifth Edition, 1998.

Authorities

Keenan and Repatriation Commission (1990) 21 ALD 289

Everett and Repatriation Commission (1991) 23 ALD 529

Edwards v Repatriation Commission Federal Court 612/1993

Bridgeman and Repatriation Commission (1998) 50 ALD 671

Smith v Repatriation Commission [1999] FCA 1484

REASONS FOR DECISION

14 June 2002 Associate Professor B W Davis AM (Part-time Member)

The Application

1. The Applicant, Marie Kathleen Pritchard, has appealed against a decision of the Repatriation Commission dated 13 June 2001, subsequently affirmed by a decision of the Veterans Review Board (VRB) dated 6 December 2001, whereby the applicant's claim for pension in respect of the death of her late husband, Mark Marcel Pritchard, was rejected on the basis that his death was not war-caused.

The Issue

2. The issue in this case is whether the Veteran's death was caused or contributed to by his service in the Royal Australian Navy between 23 April 1945 and 6 August 1946.

Date of Effect

3. All steps in this matter having been taken within the prescribed time limits, should the applicant succeed in her appeal, the date of effect will be 9 February 2001, being three months prior to lodgment of the application.

Standard of Proof

4. As the late veteran did not render operational service the standard of proof is that contained in ss120(4) of the Veterans' Entitlement Act 1986 ("the Act") i.e. the "reasonable satisfaction" standard. As this claim was lodged after 1 June 1994, s120B of the Act applies.

5. Given that the veteran died of a malignant neoplasm (metastatic adeno carcinoma, unknown primary site), a number of Statements of Principles may apply, namely:

* Instrument No 18 of 2000, malignant neoplasm of the bileduct

* Instrument No 24 of 1996, as amended by Instrument No 6 of 1998,re malignant neoplasm of the colon

* Instrument No 56 of 1997 re malignant neoplasm of the pancreas

* Instrument No 26 of 1996, as amended by Instrument No 4 of 1998, re malignant neoplasm of the rectum

* Instrument No 68 of 1997, as amended by Instrument No 10 of 1998, re malignant neoplasm of the stomach.

Background

6. The veteran was working in a protected industry during the war years and was not free to join the RANR until April 1945. On entry he was posted to Flinders Naval Depot for training and in early August 1945 he injured his right ankle in a skating accident. On return to the Depot he was forced to march and suffered such pain that he was then diagnosed as having a fractured ankle. Three days after the injury had occurred his ankle was x-rayed and he was found to have suffered a Pott's Fracture resulting in a break to both the tibia and fibula, with attendant ligature tears. The veteran spent 13½ weeks in both Flinders Naval Hospital and the RAN Auxiliary Hospital at Inverloch. He was then classed as medically fit, finished his training, was posted to HMAS Arunta as an Ordinary Seaman in March 1946, but left the service in August 1946, having served about 16 months in all.

7. Evidence suggests he was a non-smoker at the time of enlistment, but later somewhat reticent about details of service, however in response to a smoking questionnaire, stated that he commenced smoking in 1945 and continued to smoke until the mid 1990's at about a packet a day. This equates to a smoking history of approximately 45 pack years. His wife (Marie Kathleen Pritchard) affirms that when she first met Mark Pritchard in 1949 he was a smoker at the time. Smoking was considered part of every day life in the post-war years. Mr Johnstone, a colleague of the late veteran, noted that Mark Pritchard commenced smoking after enlistment and continued thereafter.

8. The veteran died on 14 February 1999, at age 75 years. The medical certificate as to cause of death stated that Mr Pritchard died from liver failure due to metastatic adeno carcinoma of unknown primary. Mr Pritchard's treating specialist advised that the most likely site of the carcinoma was in the digestive tract (stomach, colon, rectum, bile duct or pancreas). He did not consider the carcinoma came from the prostate.

9. Mr Pritchard's widow (Marie Kathleen Pritchard) sought a pension on the basis that her husband's death was war-caused. A delegate of the Repatriation Commission refused her claim in a decision dated 13 June 2001. The VRB affirmed this decision on 6 July 2001.

Facts and Contentions

10. Counsel for the applicant, filed a statement of facts and contentions on 18 February 2002, asking the Tribunal to consider the circumstances which led to a non-smoker at enlistment becoming a heavy smoker thereafter, with subsequent major illness and death. She requested the Tribunal review the Repatriation Commission and VRB decisions and find Mr Pritchard's death was war-caused.

11. The respondent contended there was no material upon which the Tribunal could be reasonably satisfied that the deceased's smoking habit had a causal as distinct from a temporal relationship with his service.

Evidence

12. At the Tribunal hearing conducted on 5 May 2002, the applicant was represented by Mr Robert Gibbs and the respondent by Mr Michael Castle.

13. The applicant, Mrs Maria Kathleen Pritchard, was sworn and gave evidence about her late husband's smoking habits. She did not know precisely when he commenced smoking, but knew that it started during his naval service. He was a heavy smoker at the time she first met him and she could confirm that although he contemplated giving it up, he remained a heavy smoker from 1945 until 1994, when he decided it was too expensive and quit.

14. Mrs Pritchard was questioned by counsel for the respondent, but could not add any supplementary information, other than she considered his Potts fracture caused some frustration and stress early in his naval career and the resultant inactivity and boredom may have contributed to his smoking habit. Many of his friends and members of her family were smokers; it was regarded as a normal social activity at the time.

Analysis

15. In reaching the decision that her husband's death was not war-caused, the delegate of the Repatriation Commission and later the Veterans' Review Board (VRB) relied upon a number of factors, including the nature of his final illness, the smoking issue and the relevant Statements of Principle applicable to a range of malignant neoplasm situations. The delegate of the Repatriation Commission noted that the veteran's smoking habit equated to approximately 20 cigarettes per day until the mid 1990's, but decided there was no causal relationship relative to eligible service, as there was no evidence to cause him to commence smoking. Aggravation as a cause of death could not be considered, as the medical condition developed after eligible service.

16. The VRB noted that Mr Pritchard was aged 20 at enlistment and considered the veteran was of sufficient maturity to make a personal choice about smoking or non-smoking; therefore arguments about peer pressure as a contributing factor should be discounted. The Board also noted a comment made in Repatriation Commission v Edwards Federal Court 612/1993, where Lockhart J cautioned against accepting smoking as war-caused, where this commenced during a period of non-operational service. The veteran had served a year before being assigned to a ship and the war had ended while he was recovering from his ankle injury. There was no record of unusual or stressful events other than his accidental injury and the Board therefore found the veteran's smoking habit was a personal choice.

17. This view was challenged by counsel for the applicant, both in the State of Facts and Contentions filed on 18 February 2002 and during the Tribunal hearing. Cases cited included Keenan and Repatriation Commission (1990) 21 ALD 289 and Everett and Repatriation Commission (1991) 23 ALD 529, both of which drew attention to the fact that cigarette smoking was actively promoted within the armed services during the war years and there was considerable peer group pressure on individuals to adopt this habit.

18. Nothwithstanding what may have gone before, the Tribunal is now required to stand in the shoes of the decision-maker, looking at the total evidence anew, giving due weight to statutory provisions and guiding principles, but also considering contextual circumstances.

19. As the veteran did not have operational service, subsection 120(4) of the Veterans' Entitlement Act 1986 applies. This means that the Tribunal is required to decide all relevant matters to its reasonable satisfaction and on this basis whether, on the balance of probabilities, his death was war-caused. The Act provides that in effect a veteran's death is war-caused if it:

(a) arose or was attributable to eligible war service;

(b) resulted from an accident while travelling to or from duty;

(c) was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible service; or

(d) was due to a condition that was contributed to in a material degree or aggravated by eligible war service.

20. Having examined all the evidence it must be stated that the Tribunal considers Mr Pritchard's situation a borderline case. He spent only a limited period in the Navy, much of it in training, in eligible but not operational service. His ankle injury occurred in circumstances which could have arisen in civilian life. The sole stressor was the considerable period he spent in hospital, after being forced to march with what was subsequently diagnosed as a Potts fracture. There is no evidence of subsequent stressors during service and no clear evidence of the onset of his terminal illness or the actual location of the primary malignancy, thereby rendering the application of Statement of Principle somewhat tenuous.

21. The Tribunal is also mindful of comment made by Dr Kimber in a letter to Dr Brigden of the Department of Veterans' Affairs, dated 1 June 2001:

"... It is most likely Mr Pritchard's primary malignancy emanated from the digestive tract (stomach, colon, rectum, bile duct or pancreas). None of these are significantly related to smoking. A prostatic source of the primary would be most unusual and this too would be unrelated to smoking ...

... As much as I am in support of any pensionable reward for those who serve in the Forces. I could not objectively support such a claim in this case. I hope this covers the question."

22. Unfortunately Dr Kimber did not explain what he meant by "significantly related to smoking". Counsel for the applicant questioned Dr Kimber's assessment and the Tribunal notes that Statements of Principle for malignant neoplasm of the pancreas, rectum, stomach and colon all specify criteria involving smoking.

23. Given the above and noting Repatriation Commission v Deladio [1998] FCA 391, the initial task is to determine whether a temporal and causal linkage exists, such as to raise a reasonable hypothesis linking the onset of service smoking and the veteran's subsequent death, which might then be attributed as war-caused.

24. There is clear evidence Mr Pritchard commenced smoking during his naval service and subsequently continued as a heavy smoker for many years, with an overall consumption of around 45 pack years. It is not fanciful to suggest that frustration and boredom as a result of his ankle fracture, as well as possible peer example, may have induced him to take up smoking. There have been many cases heard by the AAT and Federal Court which accord with this pattern and in numerous cases, whether involving eligible or operational service, the Tribunal has gone on to decide they were war-caused. See, for example Keenan and Repatriation Commission (1990) 21 ALD 289; Everett and Repatriation Commission (1991) 23 ALD 529; Edwards v Repatriation Commission Federal Court 612/1993; Bridgeman and Repatriation Commission (1998) 50 ALD 671, where the beneficial intent of the Act was noted. Overall it suggests that where heavy smoking is involved the nexus between smoking and cause of death should be closely examined.

25. Turning to Statement of Principles, Mr Pritchard died of liver failure and metastatic adeno carcinoma, primary unknown, thus a number of Instruments may be involved:

* Instrument No 18 of 2000, malignant neoplasm of the bileduct

* Instrument No 24 of 1996, as amended by Instrument No 6 of 1998,re malignant neoplasm of the colon

* Instrument No 56 of 1997 re malignant neoplasm of the pancreas

* Instrument No 26 of 1996, as amended by Instrument No 4 of 1998, re malignant neoplasm of the rectum

* Instrument No 68 of 1997, as amended by Instrument No 10 of 1998, re malignant neoplasm of the stomach.

26. Instrument No 18 (bile duct) makes no mention of smoking. Instruments No 56 (pancreas) and No 26 (rectum) involve a factor of smoking cigarettes or other tobacco products equivalent to 15 pack years, but in both cases this must have commenced 30 years before the clinical onset of malignant neoplasm was identified. In the case of Instrument No 68 (stomach) and Instrument No 24 (colon) this involves 20 pack years and clinical onset within 5 years (stomach) of cessation of smoking or 30 pack years and commencement 30 years before clinical onset (colon). Overall it is clear that Mr Pritchard's case does fall within the guidelines; thus both a prospective hypothesis and relevant Statement of Principles apply.

27. Taken together the evidence is not totally convincing about the reason for smoking or how large a factor it played in the ultimate malignant neoplasm, yet it cannot be gainsaid the late veteran commenced smoking during naval service to such an extent it met criteria specified in the Statements of Principle, it became almost a lifelong habit and must have played its part in his ultimate demise. Bearing in mind the beneficial intent of the Act, as well as other factors, the Tribunal is satisfied, on the balance of probabilities, that Mr Pritchard's death arose out of or was attributable to his eligible war service within the meaning of s9(1)(b) of the Act.

Decision

28. The decision under review is set aside and in substitution therefor, the application of Marie Kathleen Pritchard for a widow's pension in respect of her late husband Mark Marcel Pritchard is accepted on the basis that his death was war-caused.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller .....................................................................................

Personal Assistant

Date/s of Hearing 7 May 2002

Date of Decision 14 June 2002

Representative for the Applicant Mr R Gibbs, Hobart Legacy

Solicitor for the Respondent Mr M Castle (Repatriation Commission)