Woodger and Repatriation Commission [2003] AATA 39 (16 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 39

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1630

VETERANS' APPEALS DIVISION )

Re JOHN ROBERT WOODGER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date 16 January 2003

Place Sydney

Decision The tribunal sets aside the decision under review and substitutes its own decision that the applicant's disability of ischaemic heart disease is a defence service-caused disability. This decision takes effect on the first pension payday on or after 29 January 1999. The matter is remitted to the respondent for it to assess the appropriate rate of Disability Pension.

[SGD]Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Disability Pension - ischaemic heart disease - hypertension - whether veteran was unable to obtain appropriate clinical management for hypertension - whether veteran's ischaemic heart disease was caused by veteran's smoking - whether veteran's smoking causally related to defence service

Veterans' Entitlements Act 1986 ss 68(1) ("defence service"), 70(1)(b), 70(5)(d), 120(4), 157(2)(a)(ii), 177(2)(a)

Statement of Principles 39/99 concerning ischaemic heart disease

Statement of Principles 32/01 concerning hypertension

Brew v Repatriation Commission (1999) FCR 80

Daley and Repatriation Commission, Re [2002] AATA 831

Gorton, Repatriation Commission v (2001) 33 AAR 370

Holthouse v Repatriation Commission (1982) 1 RPD 287

Keenan, Repatriation Commission v (1989) 19 ALD 509

Millen and Repatriation Commission, Re [2000] AATA 508

Smith, Repatriation Commission v (1987) 74 ALR 537

Soul and Repatriation Commission, Re [2002] AATA 864

Tuite, Repatriation Commission v (1993) 29 ALD 609

Wedekind, Repatriation Commission v [2000] FCA 649

Wellington, Repatriation Commission v (1999) 57 ALD 507, full report at [1999] FCA 1552

Williams, Repatriation Commission v [2001] FCA 1195

REASONS FOR DECISION

16 January 2003 Mr M J Sassella, Senior Member

APPLICATION

1. This is an application to the Administrative Appeals Tribunal ("the tribunal") by John Robert Woodger ("the veteran", "the applicant"), born 6 June 1951 (T7), for review of a decision of the Repatriation Commission ("the respondent") dated 14 November 1998 (T9) which was affirmed on 2 July 2000 (T17) the Veterans' Review Board ("the VRB") on appeal from the respondent. The decision under review was to reject the applicant's claim for Disability Pension in respect of ischaemic heart disease. The applicant has a Disability Pension resulting from problems involving his knees, hearing and skin cancer. This is paid at 60% of the general rate. Success in the instant application could be expected to result in a higher rate of pension.

HEARING

2. The tribunal convened a hearing in this matter in Newcastle on 28 November 2002. Mr J Wormington of counsel represented Mr Woodger. Mr J Marsh of the Department of Veterans' Affairs advocacy service represented the respondent. The tribunal heard oral evidence from the applicant. The tribunal took into evidence and marked as exhibits the following documents:

Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T22) provided by the respondent.

Exhibit A1 - Applicant's statement of facts and contentions, 30 September 2002.

Exhibit A2 - Statement by applicant, 19 April 2002.

Exhibit A3 - Report by Dr G S Oldfield, cardiologist, 23 July 2002.

Exhibit A4 - Extracts from applicant's service medical records.

Exhibit A5 - Material from National Heart Foundation of Australia ("the NHFA").

Exhibit R1 - Respondent's statement of facts and contentions, 21 November 2002.

Exhibit R2 - Report by Professor M F O'Rourke, Professor of Medicine in St Vincent's Hospital Clinic specialising in cardiovascular medicine and hypertension.

Exhibit R3 - Additional applicant's service medical records.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

3. The tribunal makes the following uncontroversial findings.

* The applicant served in the army from 29 September 1971 (ex A2) until 1 October 1991 and rendered eligible defence service in the army from 7 December 1972 to 1 October 1991 (T2). Initially he was conscripted for 18 months. He extended this for three months and then signed on for successive periods of some years each time.

* The applicant lodged a valid claim on 25 September 1998 (T7).

* The date of effect of any decision favourable to the applicant would be 29 January 1999 (ss 157(2)(a)(ii) and 177(2)(a) of the Veterans' Entitlements Act 1986 ("the Act")).

* The standard of proof in relation to whether his ischaemic heart disease is a defence-caused disease is the reasonable satisfaction standard (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).

* The Statements of Principles ("SoPs") issued by the Repatriation Medical Authority relevant to the determination of this matter are, prima facie:

* 39/99 concerning ischaemic heart disease; and

* 32/01 concerning hypertension,

although, if there is no reasonable satisfaction in relation to the 1999 and 2001 SoPs, then a SoP in force at the time of the primary decision (14 November 1998), SoP 81/98 concerning ischaemic heart disease or SoP 65/98 concerning hypertension, can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).

4. The applicant's argument was that he had hypertension while in defence service and that in the terms of SoP 32/01, he suffered from an inability to obtain appropriate clinical management for hypertension (factor 5(z) in the SoP):

inability to obtain appropriate clinical management for hypertension.

Further, the applicant argued, this and/or his cigarette smoking habit and exposure to smoke haze, allegedly incidents of life in the army, led to his ischaemic heart disease in accordance with factors 5(a), (f) and (g) of SoP 39/99:

(a) the presence of hypertension before the clinical onset of ischaemic heart disease; or

...

(f) where smoking has not ceased prior to the clinical onset of ischaemic heart disease,

(i) smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or

(ii) smoking at least one pack per year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease; or

(g) immersion in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 1000 hours before the clinical onset of ischaemic heart disease, provided the last exposure to that atmosphere, did not end more than five years before the clinical onset of ischaemic heart disease; or

5. The applicant's sworn evidence at the hearing was as follows. He had started smoking at the age of 18. Thus he smoked when he was conscripted, smoking some eight cigarettes a day at that time. After he joined the army he had six months training. During this period his smoking increased. There were eight periods of daytime instruction with a smoking break between each period. He said that everyone smoked and instructors customarily told the men to stop and "have a smoke". Cigarettes were bought from the base service canteen at concessional price. In cross-examination the applicant agreed that he had not been ordered to smoke cigarettes and that he had merely been given an opportunity to smoke if he wished to do so.

6. The applicant then had five years at Kapooka. He was the unit draftsman. He worked with two others in the unit office measuring 14 feet by eight feet producing training aids. One of these others was Sergeant Brian Tobin who was the applicant's immediate supervisor. He was said to be an extremely heavy smoker. The applicant described him as a chain-smoker. The applicant said that Sergeant Tobin advocated smoking if the person was to be a part of the team. The other officer was corporal Anthony Lowe, a former smoker who no longer smoked. The applicant was smoking some 25 cigarettes a day at that time. The applicant smoked only when in the office.

7. In 1978 the applicant was transferred to the Infantry Centre at Singleton. At that time he was smoking about 60 cigarettes a day. At this time he was promoted to corporal. He was second in command in the Printing and Drafting Section. He found this job stop extremely stressful as there were always many documents to be produced within certain deadlines. The applicant had to work long hours. This involved work in a timber building dating from before World War 2. Four people worked in an office some 12 to 14 feet by six feet. All four smoked. During work hours the applicant was smoking 45 to 50 cigarettes a day.

8. In about 1980 the applicant was transferred to Headquarters Training Command in Sydney. He was the illustrator for the Doctrine Branch for three years. He found this position also very stressful. There were ongoing deadlines which he had to meet. He was working extremely long hours and found his cigarette intake at the end of the three years was approximately 60 a day. He worked in a floor of an office that was L-shaped. 60 to 70 people were accommodated. Each arm of the L-shape measured some 15 or 16 feet by 40 feet. Officers smoked at their desks. About three-quarters of those in the office smoked. The office was open plan.

9. In 1985 the unit was relocated to Georges Heights. The applicant was working in an office with no assistance. Again he was extremely stressed. He increased his smoking to more than 60 cigarettes a day because of the stress. In ex A2 he had written that he was smoking 70 to 75 cigarettes a day at this time. The office accommodation was a partitioned-off veranda six feet by 15 feet. The applicant worked in this area alone. He smoked some 40 to 50 cigarettes a day in an office. There was no extractor ventilation.

10. In 1987 the applicant found himself working in Richmond as a draftsman. He engaged in a great deal of travel to work on various sites. He had to prepare drawings of aircraft floor plans, load rules, etc. He worked alone in an enclosed office eight feet by 10 feet and he smoked all the time in the office. By the time of his discharge in 1991 he was smoking 80 cigarettes a day.

11. The applicant said that he was never approached about any weight problem. At the time of discharge he was 80 kilograms. He had annual fitness tests, after one of which he was downgraded because of his knee problems. This meant that he could not be promoted. He faced medical boards every three years until the age of 35 and then annually.

12. The applicant told the tribunal that he was first aware that he had a high blood pressure about three years ago, that is in 1999. He saw his doctor, Dr Giles, and was given medication. His heart problems had their onset in February 1995. The applicant said that he had never received any advice while in the army concerning dangers associated with smoking and drinking.

13. In cross-examination Mr Marsh threw some doubt on aspects of the earlier evidence. On 5 September 1991, shortly before discharge, an army doctor recorded that the applicant was smoking 20 cigarettes a day and had a moderate alcohol intake (T3/22). The applicant responded that this was not true and that he would not have told the doctor that he smoked only 20 cigarettes. He considered that the doctor must have "got it wrong". On 21 August 1990 a doctor recorded the applicant as smoking 40 cigarettes a day (ex R3/4). The applicant agreed that that was what he may have told the doctor at that time.

14. In cross-examination Mr Marsh asked the applicant whether he could recall any general smoking warnings prevalent in the community at the time. The applicant could recall some smoking warnings but was uncertain of the year. He thought that they said that smoking might be harmful. The applicant said that he knew that smoking was not good for his health in the 1970s. The applicant agreed that the army promoted fitness and participation in sport but said that this applied to his later years of enlistment.

15. The applicant agreed with Mr Marsh that, so far as ventilation was concerned, Kapooka and Sydney were air-conditioned premises. Only Singleton and Georges Heights lacked air-conditioning.

16. As regards his hypertension, the applicant confirmed that he was unaware that he was hypertensive while serving in the army. He could recall no symptoms and no doctor had told the applicant of any concern. The applicant cannot recall repeated blood pressure readings being taken at any one session. He became aware of hypertension after his discharge. He recalled that his blood pressure was "up a bit" in 1991 and 1992 and a repeat reading some six weeks later saw the blood pressure readings up somewhat further. He was given medication.

17. In re-examination the applicant told Mr Wormington that he had started smoking on a daily basis only after joining the army.

18. In final submissions Mr Wormington pressed on the tribunal that the applicant's ischaemic heart disease should be accepted as having been caused by his defence service. At first he argued this on the basis of the veteran's service having caused him to increase his smoking habit and maintain that increase. He argued that the army encouraged smoking breaks and that in the veteran's later work the army exposed him to stresses that caused further increases in smoking. Additionally, the army required the applicant to work in enclosed rooms. Mr Wormington said that, although there was no evidence of any visible smoke haze in the workplace, such haze can be inferred from the evidence.

19. Addressing the alternative factor linking defence service with ischaemic heart disease, Mr Wormington discussed hypertension. He referred to a full list of blood pressure readings taken between 1971 and 1991. As of 1983, Mr Wormington said, they commonly met the definition of hypertension in the SoP. The SoP requires a blood pressure reading of 140/90 for hypertension. The tribunal noted the following readings from the documents:

14 July 1971 140/80 (T3/16)

23 March 1973 130/80 (T3/17)

30 April 1976 140/85 (T14/78)

1 September 1977 150/100 (ex A4)

2 July 1980 140/90 (T3/25)

9 April 1981 130/85 (T3/27)

11 February 1983 140/90 (T3/28)

11 February 1986 140/90 (ex A4)

23 April 1987 140/95 (ex A4)

6 July 1987 130/90 (T3/19)

10 October 1988 140/95 (T3/20)

31 October 1989 150/110 (T14/78)

21 August 1990 180/120 (ex A4)

22 October 1990 140/90 (ex A4)

5 September 1991 146/90 (T3/24)

20. Mr Wormington told the tribunal that factor 5(z) of SoP 32/01 was met because there was no evidence of any clinical management whatsoever relating to the veteran's hypertension when he was in the army. He said that the applicant was given no advice as to lifestyle issues. He said that, although the veteran's blood pressure had been checked annually, for eight years he had been hypertensive or borderline hypertensive and no doctor followed this up. The army conducted no further checks.

21. Mr Wormington referred to the report from Dr Oldfield (ex A3) and said that this showed what management should have been offered to the applicant. Dr Oldfield said the following:

"Treatment at that time, from the consensus of opinions in the profession in the early years, in particular up to about 1990, would not have involved pharmaceutical agents. However he would have been encouraged to lose weight, take on a very active lifestyle with regular daily exercise, abstain from salt in the food - both on the plate and in the cooking, to avoid salty packaged/prepared foods including fast foods and slightly more regular than annual monitoring of the blood pressure to see if it actually did improve. Certainly by the late 1980s/early 1990s, if there was no response, then it would probably have been considered adding in a pharmaceutical agent. In terms of medications for his hypertension, certainly by the late 1980s/early 1990s, a pharmaceutical agent/medication would have been considered for some with persistently elevated blood pressures.

"Instigation of treatment in terms of lifestyle control, one would have felt should have been instituted in the early 1980s with the state of knowledge at that time....

"Certainly with the state of knowledge that existed in the 1970s, I would not have felt that in the general medical community the hypertension he had would have been treated.

"In the late 70s/early 80s I would have felt that he would have been encouraged strongly to undertake lifestyle changes and by the late 1980s I think he would have been on pharmaceutical/medication treatment...."

22. Mr Wormington recognised that Professor O'Rourke had in ex R2 provided a contrary view. In his report Professor O'Rourke said, among other things:

"During the period of service (1971 - 1991) the WHO definition of hypertension was elevation of blood pressure to levels [equal to or above] 160 systolic and 95 diastolic. This is noted in the first edition of the Braunwald textbook (1980) where it is pointed out that 18% of the general population have elevated blood pressure by this definition whereas 38% would be considered hypertensive if a definition of [equal to or above] 140/90 was used....

"The only definitely high level of blood pressure recorded for Mr. Woodger is on the 21st August 1990 where it was initially 180/110 (? 180/120 in the document provide [sic] to me) but falling promptly to 140/90 after rest. The elevated levels of blood pressure on page 79 of the T documents include the recording of 21st August 1990 where blood pressure fell substantially with rest but when Mr. Woodger was smoking 50 cigarettes per day. On this occasion blood pressure fell substantially with rest (and with no further cigarettes). Cigarette smoking is known to acutely elevated blood pressure recordings and the highest levels recorded on page 79 were at a time when, with 50 -- 80 cigarettes per day, initial blood pressure recordings were almost certainly taken within one hour of smoking and where the blood pressure elevation may be attributable to the smoking. The other blood pressure recordings are either normal, or at rest in the range now described as hypertension stage 1 in the 1997 JNC6 document, where surveillance over months is recommended, with attention to risk factors (overweight and smoking) and with drug therapy warranted only if lifestyle modification is unsuccessful. The Oxford Textbook of Medicine (1987) was current at the time that Mr. Woodger was discharged from the service. In this textbook Professor Peter Sleight of Oxford pointed out the controversy about the evidence for and against drug treatment in mild hypertension (with blood pressure at rest and without previous coffee or cigarettes) at 140 - 160mmHg cystolic and diastolic 90 - 100mmHg. He stated that the overall impression is that treatment of mildly raised blood pressure in patients without other risk factors for vascular disease may cause side effects which outweigh marginal benefits. Professor Sleight pointed out the adverse effects of cigarette smoking as being far more important than the benefits of drug therapy in mild hypertension and stressed the importance of changes in lifestyle (page 13.361)....

"Bearing in mind the above, including the dramatic response to rest (and presumably abstinence from cigarettes) on the 21st August 1990, I would regard the blood pressure levels charted on page 79 as being essentially normal and not warranting a diagnosis of hypertension, nor medical therapy by standards which pertained at the time (or even now)....

"On the basis of the enclosed documents, and the points made above, I believe that there was no real basis for diagnosis of hypertension during Mr. Woodger's service. Mr. Woodger was evaluated repeatedly over this time and there was no trend for elevation in arterial pressure which could not be explained on the basis of his increasing use of cigarettes...

"... there was and is no basis for pharmacological treatment of hypertension up to 1991 when Mr. Woodger was discharged from the Army."

Professor O'Rourke explicitly disagreed with Dr Oldfield in that, by the standards applied at the time, in Professor O'Rourke's view, Mr Woodger would not have been considered hypertensive and would not have been treated.

23. Mr Wormington submitted that Professor O'Rourke's views were in disagreement with some of the material that he attached to his report. The extract from Braunwald's textbook of cardiovascular medicine, published in 1980, suggests in relation to men with a blood pressure reading of 140/90, where there are only occasional high readings, "Such patients are probably best advised that their blood pressure level is 'suspect' and should be checked annually while they follow general hygienic measures, e.g., avoidance of excessive salt intake, control of weight, and regular isotonic exercise".

24. Mr Wormington referred also to some of the material in ex A5. He referred to a document, "High Blood Pressure the Facts", dating from 1988, where high blood pressure was seen to be present where a systolic reading rested between 130 and 60 and/or the diastolic reading was between 80 and 90. At page 23 of that document risk factors were said to be associated with ingestion of salt, smoking cigarettes, lack of exercise and emotional pressure. The inference was that the army doctors should have warned the applicant about these risk factors but did not.

25. Mr Wormington next referred to a National Heart Foundation information paper dating from 1987. At page 3 of that document it was said that a blood pressure reading of 140/90 should result in a doctor advising follow-up action within one month.

26. Mr Wormington referred to some National Heart Foundation blood pressure mass screening guidelines dating also from 1987. At page 4 there was advice for doctors telling people about blood pressure results in high levels. It was suggested that, for those whose blood pressure is in the range diastolic 90 -- 109 or cystolic 140 - 179, the patient should be given a card with comments, "This reading is above the range of normal blood pressure on this occasion. We recommend you have it checked by your usual doctor within the next 4 weeks, taking this card with you."

27. Reference was next made to a document dating from 1990, again created by the National Heart Foundation. This identified normal blood pressure as less than 140/85.

28. Finally, reference was made to a 1991 publication by the National Heart Foundation, "High Blood Pressure -- the Facts". At page 10 normal blood pressure is seen to be less than 140/85, and at pages 14 to 17 control of high blood pressure involves taking measures such as loss of excess weight, starting regular physical activity, reducing intake of alcohol and salt, and giving up smoking.

29. Mr Wormington submitted that all of this material from the National Heart Foundation indicated a level of knowledge over a lengthy period, including a period overlapping with the applicant's period of defence service, of the benefits of lifestyle changes for people with high or marginal blood pressure.

30. Mr Marsh, for the respondent, in final submissions conceded that Mr Woodger suffers from ischaemic heart disease. This was a valid concession in view of diagnoses provided by Dr Oldfield (ex A3) and Professor O'Rourke (ex R2). There is, therefore, no issues regarding the proper diagnosis.

31. In relation to the connection between Mr Woodger's hypertension and his ischaemic heart disease Mr Marsh noted that the applicant was relying on a SoP factor alleging an inability on Mr Woodger's part to obtain appropriate clinical management of his hypertension while engaged in eligible defence service. Mr Marsh pointed out, correctly, that the SoP in clause 6 states:

Factors that apply only to material contribution or aggravation

6. Paragraphs 5(o) to 5(z) apply only to material contribution to, or aggravation of, hypertension where the person's hypertension was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.

32. That is to say that factors 5(o) to (z) involve an argument that a veteran's hypertension has been aggravated or materially contributed to by defence service. The veteran here relied on factor 5(z).

33. So far as aggravation is concerned, s 70(5)(d) of the Act provides:

(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:

...

(d) the injury or disease from which the member died, or has become incapacitated:

(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or

...

34. Mr Marsh argued that Mr Woodger suffered from hypertension on enlistment. As at 14 July 1971 Mr Woodger's blood pressure reading was 140/80 (T3/16). The definition of hypertension in the SoP (clause 2(b)) is that hypertension exists where a systolic reading is 140 or above or where a diastolic reading is 90 or above. As at 14 July 1971 Mr Woodger's systolic reading was 140.

35. Mr Marsh pointed out that the commencement date for Mr Woodger's defence service was 7 December 1972 (s 68(1) of the Act, definition of "defence service"). For present purposes any contribution to the veteran's condition prior to that date is irrelevant. A Disability Pension is available only where eligible service has contributed as a cause of a disability. Here defence service was eligible service (s 70(1)(b) of the Act) and any army service before that date cannot be referred to as a potential cause of disability. There is no blood pressure reading dating from December 1972 in Mr Woodger's case. As paragraph 19 above indicated, the reading closest to December 1972 was taken in March 1973 and was not high, being 130/80. However, that is an aberrant reading. The general tenor of all readings from 1971 to 1991 was for a systolic reading of at least 140 and a diastolic reading of at least 90. The essence of Mr Marsh's submission was that the veteran was hypertensive on enlistment, also at the onset of defence service and that the condition did not materially worsen during defence service.

36. Mr Marsh submitted that, in any event, Mr Woodger's treatment for hypertension had been appropriate for the times. He referred to Professor O'Rourke's views as set out above in paragraph 22. The professor saw high blood pressure as present where a reading is 160/95. In the period between 1971 and 1991 only one of Mr Woodger's blood pressure readings would, in Mr Marsh's view, have been of concern in accordance with Professor O'Rourke's evidence. This occurred on 21 August 1990 and was initially 180/120 but fell to 140/90 when retaken after a rest period. Thus, Professor O'Rourke saw Mr Woodger's readings as essentially normal and not requiring treatment.

37. Mr Marsh conceded that opinions regarding what is a normal reading had changed in later periods. However, he indicated several authorities that hold that the matter is to be assessed according to the standards and practices applied in the service period. In Repatriation Commission v Wellington (1999) 57 ALD 507, but fully reported only at [1999] FCA 1552, Marshall J said at paragraph 16:

"16 In the Court's view Mr De Marchi's submission fails to come to grips with the applicant's contentions on this issue. It is necessary to examine the temporal aspect to 'appropriate clinical management'. The AAT appeared to assume that appropriate clinical management is measured by contemporary standards. The Court disagrees. ... it is the Court's view that the AAT erred in law in failing to consider that par 1(c) of the SoP is made out by reference to medical standards which applied at the relevant time. Had the AAT considered the concept of appropriate clinical management by the standards of the 1940s it would have been bound to hold, on the evidence, that the SoP was not satisfied."

38. In Brew v Repatriation Commission (1999) FCR 80 Merkel J, with whom Mansfield J agreed, said (at 87-88):

"It is well established that the Court is here concerned with beneficial legislation intended to confer significant benefits on veterans with the consequence that a beneficial, rather than a strict or narrow, approach should be taken to the construction of the legislation. In the present context that means that whether 'inability' is established in a particular case is to be approached as a matter of practical reality rather than by a theoretical approach to that issue.

"In my view Sundberg J was quite correct in treating the meaning of 'inability' in cl (1)(e) as 'lack of ability; lack of power, capacity, means' (the Macquarie Dictionary) or 'the condition of being unable; lack of ability, power or means': the New Shorter Oxford Dictionary. The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the 'condition of being unable'. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case.

"Thus, if Sundberg J was saying that cl 1(e) is confined to an inability that is an 'objective barrier to obtaining treatment', I would respectfully not agree with his Honour. However, I doubt that his Honour was intending to exclude factors, whether external, objective or otherwise, that result in a claimant for a pension being in a 'condition of being unable' to obtain treatment.

"...His Honour ought not to be taken as having concluded that external factors, such as a threat of sanctions by superior officers if treatment is sought, cannot constitute or result in an inability to obtain treatment within the meaning cl 1(e) where, by reason of such factors, the claimant understandably concludes that she is unable to obtain appropriate treatment.

"...Plainly, if the sanctions threatened are such that, as a matter of practical reality, the person threatened could not reasonably be expected to take steps to obtain treatment that could fall within 'inability' in the sense discussed above.

"...In my view it would be erroneous to limit 'inability' to 'some overwhelming psychological or emotional incapacity'. If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a 'condition of being unable' to obtain treatment."

39. The court in Brew (above) was addressing a situation where a veteran had felt constrained by the conditions of service not to seek medical treatment for a condition he suffered from at the time. Such a situation can amount an inability to obtain appropriate clinical management. However, as Mr Marsh said, there was no suggestion that the veteran suffered such constraints in the instant case.

40. In Re Millen and Repatriation Commission [2000] AATA 508 Deputy President McMahon and Member Dr Thorpe said in a tribunal decision (at paragraph 22):

"22. Some attempt was made to demonstrate compliance with the Statement of Principles with reference to paragraph 5(c). Whether or not the early diagnoses and treatments were correct for Mr Millen's condition at the time is, in our opinion, irrelevant. The paragraph does not invite an inquiry as to the appropriateness of a claimant's clinical management. It requires a claimant to show an inability to obtain that management. This would commonly arise in conditions of active service. Mr Millen has had a demonstrated ability to obtain clinical management from medical practitioners of the highest reputation who undertook examination for serious and focussed reasons to determine his continuing ability to dive. Whether they misdiagnosed his condition is irrelevant. Mr Millen was not deprived of the opportunity to obtain appropriate clinical management."

Thus, access to appropriate clinical management must be absolutely barred. It is not sufficient that a veteran failed to obtain access to available clinical management.

41. In Repatriation Commission v Wedekind [2000] FCA 649 Kenny J said in paragraph 12:

"12 In summary, before the AAT could be reasonably satisfied that Mr Wedekind's pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind's particular service."

As Mr Marsh said, Kenny J set out the steps to be applied by a decision-maker in deciding a question of alleged inability to obtain appropriate clinical management of a condition.

42. Applying the principles laid down by Kenny J in Wedekind (above), the tribunal makes the following findings in relation to whether it is reasonably satisfied that Mr Woodger was unable to obtain appropriate clinical management for his hypertension while in the army.

43. First, the tribunal finds, for reasons given by Mr Marsh in paragraph 35 above, that Mr Woodger contracted his hypertension on an uncertain date but prior to the commencement of his defence service.

44. Second, the tribunal finds that the appropriate form of clinical management between 1972 and 1980 was much as was on offer to the veteran. Even Dr Oldfield said (ex A3) that the hypertension Mr Woodger had in the 1970s would not have been treated, however he would have been encouraged to adopt lifestyle changes in the 1980s. The tribunal notes that the material in ex A5 provided for the applicant related only to 1987 and later. That material suggested that hypertension was regarded as present, or a serious risk, at lower blood pressure readings than earlier, and that lifestyle advice was regarded as required in circumstances where it might not have been in the earlier years. The gist of Professor O'Rourke's evidence was that remedial action would not have been regarded as necessary up to 1991 because the blood pressure readings would not have been regarded as high. Professor O'Rourke's curriculum vitae was available to the tribunal and indicated that he graduated in medicine in 1960 and was eminent in cardiology in 1984, but probably earlier. Added to that was a tone of reticence in Dr Oldfield's expression of opinion. He spoke in terms such as "I would have felt that he would have been encouraged strongly to undertake lifestyle changes ...".

45. The tribunal therefore finds that, so far as the 1980s were concerned, it was within the realms of accepted medical practice not necessarily to advise lifestyle changes to a patient demonstrating blood pressure readings at levels affecting the veteran. However, the tribunal also finds that a medical practitioner would have been more likely to advise such changes to a patient towards the end of that decade. The tribunal's overall finding was that the army's treatment of Mr Woodger's hypertension was not inappropriate at the relevant time, ie between 1972 and 1991.

46. Third, The tribunal has not found any relevant inability to obtain appropriate clinical management so no question arises as regards whether any inability was related to the veteran's defence service.

47. Fourth, for reasons given in paragraph 43 above the tribunal finds that Mr Woodger's hypertension was not contracted during his defence service.

48. Fifth, for reasons given by Mr Marsh above in paragraph 35, the tribunal finds that the veteran' hypertension did not materially worsen during his defence service and was not contributed to in any material degree by the veteran's defence service.

49. These findings mean that the tribunal has, of necessity, found that it is not reasonably satisfied that the requirements within SoP 32/01, factor 5(z) have been met. The tribunal has considered the remaining factors in that SoP and in the earlier relevant SoP concerning hypertension and has concluded that none of those factors apply to assist the veteran. The result is that the veteran's hypertension was not defence service-caused.

50. The veteran's ischaemic heart disease could, nevertheless, still be regarded as defence service-caused if one of the ischaemic heart disease SoP factors related to smoking are found to the reasonable satisfaction of the tribunal to be established. The applicant's position was summarised above in paragraph 18. Mr Marsh's response included the following aspects:

* The veteran had an established smoking habit at enlistment in September 1971 such that he was then smoking eight cigarettes a day.

* After enlistment and following six months of training at Kapooka the veteran was smoking some 25 cigarettes a day as at March 1972.

* By December 1972, the start of defence service, there had been ample time for the veteran to develop and consolidate an addiction to nicotine.

* Any later variations were fluctuations in a pre-existing condition.

51. The tribunal noted from Mr Marsh's cross-examination the evidence that in August 1990 the veteran had said he was smoking 40 cigarettes a day and that in 1991 he had said he was smoking 20 cigarettes a day. This was at odds with the veteran's oral evidence that his smoking progressively increased from 8 cigarettes a day in 1971 to 25 cigarettes a day in 1972, to 40-50 cigarettes a day by 1978, to 60 cigarettes a day by 1980, to 70-75 cigarettes a day by 1985, to 80 cigarettes a day by 1991.

52. The tribunal finds it difficult to disregard contemporaneous documentary evidence regarding the veteran's rate of smoking. The tribunal therefore finds that by 1990-1991 the veteran was smoking, at most, some 40 cigarettes a day. The tribunal finds that the veteran was smoking some eight cigarettes a day by September 1971, some 25 cigarettes a day by mid-1972 and some 40 cigarettes a day by about 1978 and from then until discharge and after until 1995. The tribunal has decided to ignore the figure of 20 cigarettes a day given to a doctor in 1991 as unconvincingly low given the figure of 40 a day only a few months earlier. This finding means that the tribunal is reasonably satisfied that the veteran's defence service smoking made a material contribution to any physical condition caused by the veteran's smoking.

53. Mr Woodger was smoking until 1995 when he had a coronary artery bypass (ex R2). He was therefore smoking at the time of clinical onset of his ischaemic heart disease. The factor in SoP to be applied is, therefore, factor 5(f)(i). The tribunal accepted that Mr Woodger had smoked at least five cigarettes a day for at least a year before the clinical onset of ischaemic heart disease which, according to Dr Connors, the veteran's treating doctor, was in February 1995 (T7/46).

54. However, clause 4 of the SoP requires that the operation factor 5(f)(i) in Mr Woodger's case must be related to his defence service. Mr Marsh directed the tribunal to several authorities on this point. The first was Holthouse v Repatriation Commission (1982) 1 RPD 287 where Davies J said:

"...it is sufficient that there be a causal connection and that that causal connection has contributed in a material way to the incapacity or death.

"The facts of the present case do not satisfy that test. As Denning J said in Wedderspoon v Minister of Pensions, (1947) 1 KB 562 at 563-4:

'The cases show that when the cause of the death or disablement lies in the man's own personal or domestic sphere, and the war service does no more than provide the circumstances in which the cause operated, it is not attributable to war service.''"

55. In Repatriation Commission v Keenan (1989) 19 ALD 509 Pincus J was reported as promulgating the following principles:

"K's argument, that once it was shown that he started smoking in hospital during the war, the requirement of a causal connection with his circulatory diseases was satisfied, was not acceptable. It was plainly not the law that an 'eligible service' veteran, suffering from the diseases which smoking causes, must obtain a pension if he could show that he first smoked during the war. The Tribunal had erred in law in failing to consider whether the diseases arose out of or were attributable to K's war service.

...

"(iv) There was much to be said for the view that it could not reasonably have been held, even accepting all the evidence adduced on K's behalf, that his service was a contributing cause to his developing the circulatory diseases. He went to hospital for treatment of a disease which he had before the war and there was nothing to suggest that his war service caused its recurrence. He smoked for a period, at that time, for reasons which appeared to have been equally applicable when he resumed doing so, after leaving hospital: boredom and the fact that others smoked. More generally, it could be argued to be fanciful to say that, because K first tried cigarettes while in an army hospital, his war service was the cause of his continuing to smoke (with a substantial break or breaks) for many years and, as a result, his suffering serious circulatory problems."

56. Davies J in the full Federal Court decision in Repatriation Commission v Tuite (1993) 29 ALD 609 said at page 611:

"Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. Under s 9 (1) (b), but not under ss 9 (1) (d) and 9 (2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service 'must be a cause as distinct from being part of the circumstances in or on which the cause operates.' See Marshall v Minister of Pensions [1948] 1 KB 106 at 110; W v Minister of Pensions [1946] 2 All ER 501 at 502; Minister of Pensions v Chennell [1947] 1 KB 250 at 256. An illustration of the point may be found in; Goward v Commonwealth (1957) 97 CLR 355; [1957] ALR 825 where Dixon CJ, Williams, Webb and Kitto JJ held that the location of a camp near a railway line was merely the setting in which an accident had occurred and not a contributing cause. Their Honours said at 364:

'It is correct no doubt that if the camp had not been near a railway line and if the deceased had not been living in the camp the accident would not have happened. But these are no more than antecedent conditions which are preliminary to, but hardly operative causes of, the accident.'"

57. Mr Marsh referred the tribunal to the decision of Senior Member Lindsay in Re Daley and Repatriation Commission [2002] AATA 831, a decision in which the veteran's smoking was found not to be related to her defence service. However, the facts in that case are very different from here. As the tribunal said in paragraphs 20 and 21 of Daley (above), that case should be distinguished from others where, for example, the veteran commenced smoking whilst a prisoner of war or commenced to smoke due to the boredom of the services job. Ms Daley's situation was said to differ from that of a veteran who was influenced to commence smoking by the circumstances and incidents of camp life. She was not a veteran confined to camp, separated from family and bored. She was in fact serving in Brisbane and not living in camp.

58. Mr Marsh also referred the tribunal to Senior Member Lindsay's decision in Re Soul and Repatriation Commission [2002] AATA 864. The tribunal found in that case that Mr Soul's smoking increase during service was not related to service. The tribunal said in paragraph 24:

"24. The Tribunal is satisfied that Mr Soul's smoking increased over the period of his posting to Darwin. The Tribunal finds that, after work Mr Soul went to the bar on the base and stayed there, usually for longer periods than his colleagues did. He did so by choice. He said that while his colleagues did other things after tea, he chose to return to the bar and remain until it closed. Any additional cigarettes that Mr Soul may have smoked while at work and after work, were the product of the way in which he decided to cope with the stress of being unable to resolve the matters affecting his marriage and his career. It is clear from Tuite's case that service has to be a contributing cause of the increased smoking. On the evidence available the Tribunal is unable to be satisfied that service in Darwin was other than the setting in which Mr Soul had to deal with these matters. A temporal connection with service is not sufficient. On balance the Tribunal is reasonably satisfied that defence service was not a contributing cause to his increased consumption of cigarettes. Further, the Tribunal is not satisfied on the balance of probabilities that the increase would not have occurred but for the rendering of the service in Darwin."

59. The applicant's position in the present case is that the work requirement that he meet deadlines and the ensuing stress associated with his work in the army led him to continue and increase his smoking during defence service. The applicant thus sought to argue that the connection with service was more than merely temporal. This was evidence given by Mr Woodger on oath and was not contradicted. Indeed, Mr Marsh in final submissions said that there was no suggestion from the respondent that the applicant's credit was at issue in relation to his smoking, although his recall might be faulty. The tribunal considers that if, as has been found in other cases, boredom or fear associated with service found a sufficient relationship between smoking and service, service-related stress is equally acceptable.

CONCLUSION

60. The tribunal therefore finds that the applicant's situation meets the requirements of factor 5(f)(i) of SoP 39/99 concerning ischaemic heart disease. This means that the applicant has succeeded in his application for review and ischaemic heart disease has become an accepted disability. It will be necessary to remit the matter to the respondent for it to consider the effect of this decision on the assessment of Mr Woodger's rate of Disability Pension. The decision has effect from the first pension payday on or after 29 January 1999.

DECISION

61. The tribunal sets aside the decision under review and substitutes its own decision that the applicant's disability of ischaemic heart disease is a defence service-caused disability. This decision takes effect on the first pension payday on or after 29 January 1999. The matter is remitted to the respondent for it to assess the appropriate rate of Disability Pension.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

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

Associate

Date of hearing 28 November 2002

Date of decision 16 January 2003

Counsel for the applicant Mr J Wormington

Solicitor for the applicant Cunningham & Adam Solicitors

Advocate for the respondent Mr J Marsh, DVA Advocacy Service