Dyson-Smith and Repatriation Commission [2003] AATA 459 (22 May 2003)

Last Updated: 27 May 2003

DECISION AND REASONS FOR DECISION [2003] AATA 459

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1516

VETERANS' APPEALS DIVISION	)
	Re	INEZ DYSON-SMITH

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr M E C Thorpe, Member

Date 22 May 2003

Place Sydney

Decision

The Tribunal sets aside the decision under review and substitutes its own decision that the Applicant qualifies for a War Widow's Pension with effect from 5 May 2001.

[SGD] Dr MEC Thorpe Member

CATCHWORDS

VETERANS' AFFAIRS - War Widow's pension - operational service - reasonable hypothesis - cerebrovascular accident - clinical onset - Veteran's smoking history - cerebrovascular accident occurred within 15 years of cessation of smoking - decision set aside

Veterans' Entitlements Act 1986 - ss 11, 119, 120

Repatriation Medical Authority Statement of Principles Instrument No. 52 of 1999 as amended by No. 30 of 2002 concerning Cerebrovascular accident

Repatriation Commission v Deledio (1998) 49 ALD 93

Dixon v Repatriation Commission [1999] FCA 582

Bull v Repatriation Commission [2001] FCA 1832

Mason v Repatriation Commission [2000] FCA 1409

Gleeson v Repatriation Commission (1994) 34 ALD 505

REASONS FOR DECISION

May 2003

Dr M E C Thorpe, Member

1. This is an application to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Inez Dyson-Smith ("the Applicant") for review of a decision of the Repatriation Commission dated 26 March 2001 (T2) as affirmed by the Veterans' Review Board ("the VRB") on 8 July 2002 (T13) to the effect that the death of Mr Maurice Dyson-Smith ("the Veteran"), who was born on 31 May 1908 and died on 14 April 1991 (T8, p50), was not related to service. This meant that the Applicant did not qualify for a War Widow's Pension.

THE HEARING

2. The Tribunal conducted a hearing in this matter in Sydney on 25 March 2003. Mr Adam Halstead from the Legal Aid Commission of NSW represented the Applicant and Mr Peter Godwin from the Department of Veterans' Affairs ("the DVA") represented the Respondent.

3. The Tribunal heard oral evidence from the Applicant. The Tribunal took into evidence the following documents:

Exhibit	Description	Date
TD1	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Applicant's Statement	4 February 2002
R1	Clinical Notes from Hornsby Kuringai Hospital	Various
R2	Revised Table of documented smoking history	Various

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

4. The Tribunal makes the following uncontroversial findings:

* the Applicant is a "dependent" of the deceased Veteran as defined in section 11(1) of the Veterans' Entitlement Act 1986 ("the Act"). She was Mrs Dyson-Smith de jure wife - a marriage certificate dated 6 April 1939 (T8, p46);

* the Veteran served in the Australian Army ("the Army") and underwent operational service from 31 March 1942 to 13 September 1944 in the Second World War (T2, p6);

* the Applicant lodged a valid claim on 10 October 2002 (T1);

* the standard of proof in relation to whether the Veteran's death was war-caused is the reasonable hypothesis standard (sections 120(1) and (3) of the Act). The standard in relation to cause of death may be that of reasonable satisfaction (section 120(4) of the Act). The standard equates to acceptance on the balance of probabilities as outlined in Repatriation Commission v Smith (1987) 74 ALR 537 at 547.

5. The cause of the Veteran's death was certified at (T8, p45) as follows:

"(a) Brain death

(b) Dense L CVA (cerebrovascular accident) for two days before death".

6. The issue before the Tribunal becomes whether the cerebrovascular accident, which was the relevant cause of the Veteran's death on 14 April 1991 was war- caused.

THE HYPOTHESIS

7. The fundamental issue was the deceased Veteran's smoking history. The hypothesis raised was as follows:

* as a result of his operational service the Veteran smoked 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.

8. It was agreed between the parties that there was no dispute to the fact that as a result of his operational service the Veteran smoked at least five cigarettes per day for at least five years before the clinical onset of cerebrovascular accident. The only issue before the Tribunal was therefore whether the clinical onset has occurred within 15 years of cessation.

9. The Full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an Applicant will succeed in a claim that a veteran's death was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193 at 206.

10. The first step is to consider whether the material before the Tribunal points to an hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the Veteran.. The Tribunal has identified in paragraph 6 the hypothesis raised to connect the Veteran's death with his operational service.

11. The second step is to ascertain whether there is a relevant Statement of Principles ("SoP") as issued by the Repatriation Medical Authority under subsection 196B and 196D of the Act in force. The relevant SoP in this case is No. 52 of 1999 at factor k (i) as amended by No. 30 of 2002 concerning cerebrovascular accident.

12. The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will, with some exceptions, be reasonable. The hypothesis raised must contain at least one of the factors in the SoP, which the SoP says must exist, and that factor must be related to the Applicant's service.

13. The factor in the SoP that has to be satisfied by the hypothesis as raised was:

"(k) for cerebral ischaemia only,

(i) 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;..."

14. The Tribunal was presented with material relating to the Veteran's smoking. This was as follows:

EVIDENCE OF MRS INEZ DYSON-SMITH

15. Mrs Dyson-Smith in her statement (Exhibit A1) met her husband Mr Maurice Dyson-Smith ("the Veteran") in April 1939. Mr Dyson-Smith did not smoke when she married him. In examination in chief, Mr Halstead asked Mrs Dyson-Smith :

"Q: Do you remember before he went away to the war, was he a smoker at that point?

A: No, he never smoked and he never drank either, never...

Q: And what about when he came back a few years later... When he came back from the war?

A: Yes, a few years later? Yes, he said the Salvation Army were absolutely wonderful. They were up with the men where they were fighting and, through them, he started smoking..."

In her evidence Mrs Dyson-Smith agreed her husband smoked in the 1940s and when asked if he was still smoking in the 1950s she replied:

"A: Yes, yes, he was. He was smoking all the time but he was very proud of the fact that he would give up smoking whenever he wanted to give up smoking but, of course, he always went back again..."

When questioned about his smoking after the five operations, (the hospital files indicate surgery in 1972, 1983, 1983,1989 and 1980) Mrs Dyson-Smith said:

"When he came back from hospital each time he'd take up smoking again, of course he would."

When asked when was the last time she saw him smoking:

"That was in 1987, I think it was..."

On this occasion they were driving back from Forster and on that particular day she recalled that when she went to pick him up from the beach his legs had given out on him and he said:

"We're going straight back home because my legs are giving me so much pain."

She remembered it was a dreadful day with rain and thunder. Her evidence was:

" That was the last time I saw him actually smoking and I said to him: 'Should you be doing that?' and he said: 'well, it's the only thing that gives me help because I'm in such pain'."

When asked for any reason why her late husband may have told doctors that he was a non-smoker the Applicant responded:

"All I can say is: 'Yes, I can give up smoking whenever I want to' and then he came back to it again... He was a regular smoker, that all I can say."

16. Under cross-examination Mrs Dyson-Smith said her husband's mental state was disturbed later in life. He was very difficult to live with and she was unable to reason with him.

17. Mr Godwin attempted to examine Mrs Dyson-Smith on the medical records indicating the Veteran was a reformed smoker who had ceased smoking at about 1970/1971. In response to the reference in the clinical notes from Hornsby Hospital indicating Mr Dyson-Smith was a reformed smoker for 30 years, Mrs Dyson-Smith responded:

"Well, I think for the very fact that I kept on saying to him 'why don't you give it up?' and I think he was so stubborn that when he would go into the hospital, he would say 'oh, no, I've given it up.' "

18. It was evident to all present that Mrs Dyson-Smith was confused about the medical records and their meaning and that further examination of the records would not be productive. Mr Godwin very fairly did not pursue this line of questioning. The Tribunal noted Mr Godwin's consideration and also the Applicant's inability for whatever reason to respond to details in the medical records concerning cessation of smoking.

19. The Widows Report - Cigarette Smoking (T8, p48/49) was completed by the Applicant on 15 March 2001. She answered "No" in Section 1.5 to the question "Did the veteran ever stopped smoking permanently?" In response to Section 2 at the same questionnaire which was required to be completed if there was a change in the veteran's smoking habit over time, the Applicant completed this section as follows

Date of change New amount Reason for change

(month and year)

1960-1990 40/day Decreased due to health

20. Under cross-examination Mrs Dyson-Smith agreed that the last time she saw her late husband smoking was in 1987. It was not established why the Applicant had written 1990 in the Report when her testimony was that he ceased smoking in 1987. Her evidence was that her husband had bronchitis "so badly in the next years that I was there all the time with him and he couldn't smoke when I was there in the house."

SUBMISSIONS

21. Mr Halstead for the Applicant relied on the widow's evidence that the Veteran was a smoker up until 1987. He smoked to relieve pain. He had no explanation for the medical records indicating cessation of smoking at a much earlier date. The Statutory Declarations provided by family members were of no assistance concerning the date of cessation of smoking. His explanation relied on the widow's evidence that the Veteran started and stopped smoking until at least 1987.

22. Mr Godwin submitted that the documented histories as summarised in Exhibit R2 did not meet the requirements of the SoP. No family members had been approached by the Applicant to provide further information regarding cessation of smoking. Mr Dyson-Smith was an asthmatic and had probably been advised to cease smoking.

23. Mr Godwin cited Dixon v Repatriation [1999] FCA 582 requiring that consideration of the truth of the Applicant's evidence be left to the final stage of the Tribunal's reasoning process and not at the start of the process as set out in Deledio (supra), when examining the reasonableness of the hypothesis.

24. Mr Godwin referred the Tribunal also to the decision of Bull v Repatriation Commission [2001] FCA 1832; that in determining whether a reasonable hypothesis is raised the decision maker is required to look at all the material, not just some of it, and is not entitled to find facts or reject matters.

25. The Tribunal was directed by Mr Godwin to the decision of Weinberg J in Mason v Repatriation Commission [2000] FCA 1409 at par 75 where "...it is not the function of section 119 (1) to fill in gaps, where the evidence does not assist the applicant's case. This is of course correct. The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where four judges of a five-judge Court said at 373-4:

`.. in order for the hypothesis advanced by the respondent to be reasonable, there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not replace the Tribunal's obligation to act in accordance with law. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it - "without limiting the generality of the foregoing". Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions.' (footnotes omitted, emphasis added)."

TRIBUNAL'S DETERMINATIONS

26. The hypothesis involved the propositions that the Veteran ceased smoking in 1987 and his cerebrovascular accident had its clinical onset in 1991. To the extent that factor k (i) of SoP No. 52 of 1999 as amended by No. 30 of 2002 requires a certain consumption of cigarettes for at least five years before the clinical onset of cerebrovascular accident was satisfied. The only question was whether the hypothesis suggested that clinical onset of the cerebrovascular accident occurred within 15 years of cessation of smoking.

27. The widow's evidence was that the Veteran ceased smoking in 1987 and that he smoked because he was in pain. She said that he was able to give up smoking whenever he wanted to. She said that he was difficult and stubborn in later years and she attributed this stubbornness as the reason for him telling the doctors at the hospitals that he had ceased smoking. This part of her evidence was difficult and not clear. Mrs Dyson-Smith is 89 years of age and was having obvious difficulty understanding the questions. The Tribunal noted that Mr Godwin did not pursue this line of examination, as it was apparent to all present that it was distressing to the Applicant and was not productive.

28. On the basis of Mrs Dyson-Smith's evidence a reasonable hypothesis has been advanced to satisfy the template of the SoP. However the Tribunal is mindful of Bull v Repatriation Commission (supra) at par 20, requiring it to look at all of the material at the end of the day, not just some of it and it is not entitled to find facts, or rejected matters.

29. The Respondent relied on 11 entries in the Clinical Notes from various hospitals; that the veteran was a reformed smoker and had ceased smoking. Seven of the entries indicated that he would have ceased smoking prior to 1975. The other four entries did not provide a timeframe.

30. The four Statutory Declarations provided by family members (T10, p53) indicated the Veteran was a smoker.

* The only Statutory Declaration relevant to this case was from Michael Robert Patrick (son-in-law) (T10, p56):

"I first met Mr Maurice Dyson-Smith in the year 1971....

When I first met Mr Maurice Dyson-Smith, he was in the habit of smoking. I observed that he used both cigarette and pipe tobacco products.

Mr Maurice Dyson-Smith did not enjoy a healthy disposition and again from observation, I summarized the that he was pre-occupied with a "state of mind and his physical condition" that may well be attributed to his past experiences and that his smoking habit was a symptom of this."

* All the declarations point to a date of cessation of the late Veteran's smoking habit. From the evidence of Michael Robert Patrick the late Veteran was still smoking in 1971.

31. The VRB decision of 8 July 2002 referred to a previous claim by Mrs Dyson-Smith, submitted in 1991, which was also based on atherosclerosis (T13, p64). The delegate relied upon the smoking evidence on file to exclude the possibility of any connection because of the considerable time that had elapsed between the Veteran ceasing smoking and the clinical onset of atherosclerosis.

32. The Tribunal places no significance on the fact that the 1991 decision was not appealed. No reason was available to the Tribunal, and any interpretation of the reason(s) for not appealing the decision would be based on conjecture.

33. The Veteran suffered from asthma for many years and received various treatments including ventolin and prednisone. It is reasonable to assume that the various doctors would have advised the Veteran to cease smoking. It does not follow that the Veteran necessarily heeded this advice. The only evidence concerning his asthma and smoking was from Mrs Dyson-Smith who said "he had bronchitis so badly... after 1987."

34. To consider if an hypothesis is reasonable the Tribunal is required to look at all of the material before it. In Gleeson v Repatriation Commission (1994) 34 ALD 505 at 509, Beaumont, Einfeld and Hill JJ stated

"...that is to say

(a) did the whole of the material before it raise some facts which give rise to the hypothesis suggested; and

(b) if so, is the hypothesis reasonable?"

35. The Tribunal is of the opinion that the material raises a reasonable hypothesis within the summary of subsection 120(3). The Tribunal then turned to subsection 120(1) to determine whether it could accept sufficient of the facts as are necessary to support the raised hypothesis.

36. To consider the truth of the Applicant's evidence at the third stage of the process set out in Deledio (supra), when committing the reasonableness of the hypothesis, such consideration should be left to the final stage of the Tribunal's reasoning process, see generally Dixon v Repatriation Commission (1999) FCA 582. That is, the decision about credibility is left to the fourth step of Deledio.

37. The Veteran was a heavy smoker at least until 1970/71. The reasons for him smoking included relief from pain and in the opinion of his son-in-law Mr Michael Robert Patrick (T10, p56):

"Mr Maurice Dyson-Smith did not enjoy a healthy disposition and again from observation. I summarised that he was preoccupied with a 'state of mind and his physical condition' that may be attributed to his past experiences and his smoking was a symptom of this."

Medical reports indicate that he ceased smoking about 1970-1971. Mr Halstead cited inconsistencies around the dates in the medical reports, but the Tribunal accepted that the reports indicated cessation of smoking at or about 1970/1971.

38. The widow's evidence was that he was a regular smoker and that she last saw him smoke in 1987. That he was able to give up smoking whenever he wanted to and then take it up again. In other words he started and stopped smoking in particular about the time he had the five operations.

39. The Tribunal was impressed with the unembellished account of the events of the day in Forster in 1987 when the widow last saw the Veteran smoke.

40. The widow's evidence was that he smoked until 1987 which is sufficient to satisfy the SoP. The Tribunal cannot be satisfied beyond reasonable doubt that her evidence is without justification as outlined in Dixon v Repatriation Commission (supra).

41. In considering all of the material the Tribunal must address the question of the medical records.

42. This is not to say the medical records were not correct in stating he ceased smoking at an earlier date. What the records do not record was whether he started smoking again at a later date. The widow's evidence was that he stopped and started smoking at a later date. The Tribunal contends that, while Mr Godwin did well to cast some doubt on the validity at the hypothesis in as much as the medical records indicated cessation of smoking at an earlier date, this did not suffice to render the hypothesis fanciful, impossible, incredible, too remote or too tenuous. This also takes into account the difficulty cross-examining the Applicant and the consideration given by Mr Godwin in this regard. Even so, the Tribunal considered there was sufficient material before it for the hypothesis advanced pointing to a connection between his disease and war service.

43. Mr Halstead said the widow had offered an explanation for the medical records indicating cessation of smoking, namely that the Veteran was proud of his ability to start and stop smoking. He said the test was satisfied because the hypothesis had not been dispelled, simply by virtue of the medical notes because there was an explanation that perhaps the Veteran did start and stop smoking when he went in and out of hospital.

44. Mr Halstead asked the Tribunal to give a favourable interpretation to any deficiencies in the material by virtue of section 119 of the Act. Mr Godwin said section 119 clearly related to deficiencies in records from the time of service, not things 50 years ago, but that here we had ample records. The Tribunal did not consider there to be any deficiency in the material before it that required resort to the procedural provisions of section 119 as outlined in Mason v Repatriation Commission (supra).

45. Moving on to consider step four of Deledio (above), the Tribunal must decide whether it is satisfied beyond reasonable doubt that the Veteran's cerebrovascular accident did not arise from a war-caused injury. The Tribunal has its doubts about the link between war service, smoking and Mr Dyson-Smith's cerebrovascular accident, but there is insufficient basis for the Tribunal to be satisfied beyond reasonable doubt that the cerebrovascular accident was not war-caused that one of the factual elements of the hypothesis was not applicable.

CONCLUSION

46. The Tribunal is reasonably satisfied that the clinical onset of the cerebrovascular accident occurred within 15 years of cessation of smoking. Under those circumstances the cerebrovascular accident which was the cause of the Veteran's death was war related.

DECISION

47. The Tribunal sets aside the decision under review and substitutes its own decision what the Applicant qualifies for a war widow's pension with effect from 5 May 2001.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M E C Thorpe, Member

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

Associate

Date of Hearing 25 March 2003

Date of Decision 22 May 2003

Advocate for the Applicant Mr A Halstead Legal Aid Commission

Advocate for the Respondent Mr P Godwin