Whyte and Repatriation Commission [2010] AATA 869 (5 November 2010)

Last Updated: 5 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 869

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1969

VETERANS' APPEALS DIVISION		)
	Re		DEREK WHYTE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr R G Kenny, Senior Member

Date 5 November 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

.................[Sgd].............................
Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – Operational service and defence service with Royal Australian Navy – Application of Statements of Principles – Diagnosis and clinical onset of emphysema – A reasonable hypothesis of relevant relationship to service raised – Satisfied beyond reasonable doubt that increase in smoking unrelated to operational service - Emphysema not war-caused – Increase in smoking unrelated to defence service - Emphysema not defence-caused - Decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 6C, 7, 9, 14, 68, 70, 120, 120A, 120B, 175

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82; (1998) 49 ALD 193
Repatriation Commission v Smith (1987) 15 FLR 327

REASONS FOR DECISION

5 November 2010

Mr R G Kenny, Senior Member

BACKGROUND

1. Derek Whyte served with the Royal Australian Navy (“the RAN”) from 9 July 1963 until 11 September 1988. On 18 March 2008, he lodged with the Repatriation Commission (the respondent), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability pension for various conditions including “emphysema” which he contended was related to his RAN service. On 1 August 2008, the respondent rejected the claim. On 23 March 2010, the Veterans’ Review Board (“the Board”) affirmed that decision.

SERVICE, ISSUES AND LEGISLATION

2. Mr Whyte completed periods of eligible war service in the form of operational service as provided for in s 7 and s 6C of the Act, respectively, from 19 January 1965 until 17 March 1965; from 16 May 1967 until 8 June 1967; and from 25 January 1968 until 5 February 1968. During those periods, Mr Whyte served on HMAS Duchess (“the Duchess”) as part of the Far East Strategic Reserve (“FESR”) and on HMAS Stuart (“the Stuart”) in South Vietnamese waters. He also served a period of defence service in accordance with s 68 of the Act from 7 December 1972 until his discharge.
3. Pursuant to s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered. For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act which reads:

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.

4. The application of that provision is affected by the terms of s 120(3) and by s 120A of the Act which require that consideration be given to any relevant Statements of Principles (“SoPs”) that have been published by the Repatriation Medical Authority (“RMA”).
5. The criteria of causation for a relationship between a claimed condition and defence service are set out in s 70 of the Act. Accordingly, the condition is taken to be defence-caused if it arose out of, or was attributable to, any defence service. The standard of proof for determining those issues and for diagnostic matters is set out in s 120(4) of the Act. This provision requires that such matters be determined to the Tribunal’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance the probabilities[1]. The application of that provision is affected by the terms of s 120B of the Act. This provides that, where a relevant SoPs has been published by the RMA, a decision-maker may be reasonably satisfied that a condition is defence-caused only if the SoPs upholds the contention that the condition is, on the balance the probabilities, connected with that service.
6. It is not in dispute and I am satisfied that the appropriate diagnosis which answers Mr Whyte’s claim is emphysema and that the clinical onset was in 2007.

CONTENTIONS

7. Ms Frizelle submitted that Mr Whyte’s emphysema developed because of his smoking habit which commenced before any period of eligible service but progressively increased on the occasions when he was on operational service because of stress associated with that service. She submitted that he again increased his smoking during stressful components of his defence service and accumulated the required number of pack years of smoking because of those stressful aspects of service before he ceased the habit in July 1987.
8. For the respondent, Mr Kelly submitted that there was no clear evidence on which a decision could be based about the levels of smoking by Mr Whyte. He referred to varying accounts of the smoking history given by Mr Whyte in his evidence, in statements he had completed and in his evidence to the Board.

EVIDENCE

Mr Whyte

9. Mr Whyte’s evidence was that he commenced smoking while a 16 year old recruit at HMAS Leeuwin. He said that his low wage limited him to the purchase of one packet of 20 cigarettes each fortnight although he purchased an extra packet at times and was able to obtain cigarettes from others from time to time. He estimated his use to be 5 to 8 cigarettes per day during his 12 months recruitment training.
10. From HMAS Leeuwin, Mr Whyte was posted to the Duchess on which he served from July 1964 until November 1965. He described the Duchess as being of the same construction as the ill-fated HMAS Voyager (“the Voyager”) which had sunk in 1964 with substantial loss of life. Because of the design similarity, a high level of tension was experienced by the crew. His action station on the Duchess was the B turret magazine which was below the waterline. His duties included the provision of ammunition to the gunners above. He found this stressful. The Duchess was part of the FESR for approximately 7 weeks from 19 January 1965 until 17 March 1965 and, during that time, Indonesian war ships were sighted. The Duchess also took prisoners from smaller vessels and, on three occasions, Mr Whyte, accompanied by a senior rating, was required to stand guard over a group of handcuffed prisoners armed with an automatic weapon for which he had received no training. Mr Whyte found these duties stressful. He said that he increased his smoking while on the Duchess at that time, because of this stress and because of their low duty-free cost, to 20 per day.
11. From April 1965, Mr Whyte was based at HMAS Watson where he undertook further training before being posted to the Stuart on 16 November 1965 by which time his smoking had increased to about 25 per day. The Stuart twice escorted HMAS Sydney (“the Sydney”) to, from and into Vung Tau Harbour on two occasions. Mr Whyte described the first of these as uneventful except for his being armed on deck observing the surrounding waters. Scare charges and a patrolling cutter were used to deter any underwater activity by the enemy. With the second period in the harbour, Mr Whyte said that “all hell broke loose” because of engagement by US forces with Viet Cong some kilometres inshore but within sight and sound of the ship’s crew. For safety, the Sydney moved out of the harbour and the Stuart followed some hours later. Mr Whyte said that he found this stressful and again increased his smoking as a result to about 30 per day.
12. Mr Whyte said that, for some of the time before the Stuart went to Vung Tau Harbour, the ship was in areas which would have been recognised under the Act for operational service except that it was not in those waters for sufficient time. Mr Whyte understood, at the time, that he was on operational service because the ship’s crew had been so advised, mistakenly as it transpired, by the ship’s captain. They came into contact with foreign vessels during those periods and he found these to be stressful times.
13. Mr Whyte celebrated his 18th and 21st birthdays on the Duchess and the Stuart, respectively, while the vessels were on operational service.
14. After his posting to the Stuart, the nature of Mr Whyte’s service changed in that he became a member of the RAN aircrew with particular involvement in sonar-related tracking work and engagement in Sea King and Wessex helicopters. This involved him in intensive training and service at HMAS Harman, HMAS Albatross and HMAS Melbourne as well as postings in the United Kingdom to HMAS Carpentaria and HMAS Ark Royal. Mr Whyte described the stress of additional responsibility he felt as a Warrant Officer-Aircrewman, particularly from 1983. During that period, his smoking again increased to about 35 to 40 per day. He finally ceased smoking in July 1987.
15. A “Claimant Report - Cigarette Smoking” was signed by Mr Whyte on 22 February 2008. It nominates the commencement of smoking as occurring at HMAS Leeuwin and the quantity at that time as being 20 to 30 per day. The only subsequent increase is noted to be in 1983, to 30 to 40 per day, due to pressure of work and training. In his evidence, Mr Whyte said that he was travelling and was telephoned by his RSL representative who told him to obtain a form from an RSL office and send it to him. He said that he obtained the form, wrote his name on it and signed it but otherwise left it blank. He then forwarded it to his RSL representative who again contacted him by telephone and his RSL representative completed the smoking details while speaking with Mr Whyte. He said that he understood the question in relation to quantity smoked as being his overall life-time smoking average rather than the period when he was a recruit at HMAS Leeuwin.
16. Mr Whyte also completed a Statement on Smoking at some time in 2008. There, he recounted the commencement at HMAS Leeuwin and subsequent increases on the Duchess and on the Stuart. He wrote that his stress levels were high particularly when at anchor in Vung Tau Harbour for “a number of days”. In his evidence, he agreed that the vessel had been in the harbour for only a few hours. In another statement, received by the Board on 23 February 2010, Mr Whyte wrote that he was posted to the Duchess in July 1964 and had increased his smoking to 20 per day by the end of 1964; that he increased to 30 per day after he had been in Vietnam; and that he further increased to 40 per day because of the demanding duties he performed after being promoted to Warrant Officer Aircrewman in 1983.

Medical Report

17. In evidence was a medical report, dated 23 March 2006, from Urologist Dr Peter Swindle. He recorded a smoking history from Mr Whyte as being: “Nil for 20 years with a 23 pack year history”.

Reports of Proceedings

18. In evidence were copies of the Reports of Proceedings for the Stuart for the periods when Mr Whyte was on board the vessel in Vung Tau Harbour and also the Reports of Proceedings for the Sydney for the period encompassing Mr Whyte’s second period there. Those reports contain nothing of particular note in relation to either period except that the Sydney is reported to have moved from its original berth to a “less hostile” one before proceeding to Singapore after being in the harbour for about 8 hours during which unloading took place.

VRB proceedings

19. In evidence was a transcript of proceedings at the VRB. In relation to the “Claimant Report - Cigarette Smoking”, Mr Whyte advised that he completed the form himself. Part of the transcript reads:

Board Question: ...when you filled this out, did you put the information down as you understood it in terms of the form at that time?
Mr Whyte’s response: I did, but I didn’t sort of – when I did it I was in a bit of a rush to get it in, because I’d obviously had a call from Peter to say, “Can you get it to me ASAP”’ and we were travelling. I managed to get one at the RSL there and filled it in. When I filled it in, I thought it was sort of the average smoking for the whole time I was smoking; that’s what I read into it. 20 to 30 cigarettes per day over the whole period of my smoking life, as I’d say.[2]

20. Later, it reads:

Mr Whyte’s response: Yep. As I said, when I filled that in, I didn’t really read it. I looked at that and it said, at question 3, “Approximately how many cigarettes per day roll-your-owns? How many ounces of tobacco regularly smoked?” I didn’t realise it was at that time. I sort of glanced through that. Filling it in in a hurry, I thought it was over the whole period of my smoking career, if you like, and I put 20 to 30 average.......”[3]

21. When asked about his purchase of cigarettes at HMAS Leeuwin, Mr Whyte replied:

Yeah, I’d probably buy – normally buy a couple of packets of cigarettes to sort of tide you over. But, more often than not, you ended up – like, other people would have them and you’d borrow off them or they’d borrow off you, depending on who had most at the time.

22. Reference is also made to the increase in smoking by Mr Whyte after he left HMAS Leeuwin. He said that he increased his smoking once he got on the ship where cigarettes were cheaper. He said that things that “got his smoking going” were the fact that the Duchess was a replacement for the Voyager and the fact that it was his first time at sea. He said that he increased to 20 per day once he was on the ship[4]. He also attributed his increase to the availability of cigarettes on a duty free basis[5]. At the Board hearing, Mr Whyte was reminded that he was on the Duchess for some six months before the vessel was in an operational area and he was asked what other factors influenced his smoking in that period. He again referred to the problems incurred on the Voyager and also nominated his youth[6]. He confirmed that he was smoking 20 per day at that time[7].
23. At that hearing, Mr Whyte again identified his time in Vung Tau Harbour as a time when he increased his smoking to 30 per day.

PRINCIPLES OF CAUSATION

Operational Service

24. The Federal Court, in Repatriation Commission v Deledio[8], set out a four-step procedure for determining issues of causation in relation to operational service. The first of these steps requires that there be material which points to an hypothesis connecting a claimed condition with service. I am satisfied that this requirement is met. This is that Mr Whyte increased his smoking on operational service because of stressful aspects of that service and that this contributed to the development of his emphysema.
25. The second of the four Deledio steps requires identification of the relevant SoPs as published by the RMA. For emphysema this is Instrument No 30 of 2004.

Step 3: Is the hypothesis reasonable?

26. The third Deledio step does not involve fact-finding but requires a consideration of the advanced hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the SoPs.
27. For emphysema the relevant factor and associated definition in Instrument No 30 of 2004 read:

5(a) smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema
8 “pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;

28. Clause 4 of the SoPs requires that the factor in clause 5 must be related to eligible service. That reflects the requirements of s 9(1)(b) of the Act.
29. The version of Mr Whyte’s smoking history given by him at the hearing points to an increase after the Duchess was engaged in FESR service and a further increase after the Stuart was in Vung Tau Harbour on the second occasion. That material points to an increase of an extent that is consistent with factor 5(a) of the SoPs. This means that Mr Whyte’s situation fits the template of the
    SoPs and that, therefore, the hypothesis of a relationship between his operational service and his emphysema is reasonable.

Step 4: Is emphysema war-caused?

30. A consideration of all of the versions of Mr Whyte’s smoking history reveals major inconsistencies. His account of how the “Claimant Report - Cigarette Smoking”, dated 22 February 2008, was completed is in stark contrast to the version that he gave to the Board. The only interpretation open in relation to what he said to the Board is that he completed the form himself. I accept that a person may sign a blank form and send it to a representative for subsequent completion. However, when faced with the version given to the Board, that becomes inherently unlikely in this case. I am satisfied that the form was completed by Mr Whyte. That casts doubt upon the reliability of Mr Whyte as a reliable and truthful witness.
31. Mr Whyte’s evidence at the hearing was that he smoked 5 to 8 cigarettes per day while a recruit at HMAS Leeuwin. Clearly, that amounts to 70 to 160 cigarettes, or 3.5 to 8 packets, per fortnight. That bears no resemblance to the number of packets he claimed to have purchased each fortnight on any version of evidence he has given on that issue.
32. In his evidence at the hearing, Mr Whyte said that he increased to 20 per day when the Duchess was with the FESR because of the stress in duties such as guarding prisoners. On more than one occasion in his evidence to the Board, he confirmed that he increased his intake to 20 per day within the first 6 months or so that he served on the Duchess prior to its FESR allocation. Further, he gave clear reasons for doing so, implicating the duty-free cost of cigarettes, the concerns about comparisons between the vessel and the Voyager as well as the fact that it was his first time at sea. I do not accept that Mr Whyte increased his smoking during the seven weeks of his FESR service but that he became a habitual smoker of 20 cigarettes per day in the first six months on the Duchess.
33. Mr Whyte may have increased his smoking from 20 to 25 cigarettes per day while at HMAS Watson before being posted to the Stuart on 16 November 1965. That is not a period of eligible service. Mr Whyte said that his smoking increased to 30 per day after he had been in Vung Tau Harbour. The Reports of Proceedings indicate that the duration of those stays was short, in the latter case, a matter of eight hours. Mr Whyte described the first stay as uneventful. His description that “all hell broke loose” is not supported by the entries in the Reports of Proceedings of either the Sydney or the Stuart except that the Sydney moved to a less hostile station. Mr Whyte did not give an account of any incidents that occurred which were a threat such that it would bring about an increase in smoking of 5 cigarettes per day.
34. At no stage in his evidence did Mr Whyte indicate that he had a clear recollection of what the level of his smoking was during his service. I am satisfied that he retrospectively reconstructed his estimates of his smoking to meet the criteria in the SoPs. Indeed, he said that his estimate of smoking at HMAS Leeuwin was based on a reconstruction of his daily practices there and an assessment of the limited opportunities available to have a cigarette. I have noted Dr Swindle’s notation that Mr Whyte had not smoked for 20 years which is consistent with Mr Whyte’s evidence that he ceased in 1987. However, his reference to a 23 pack year history of smoking is not consistent with the level of smoking that Mr Whyte has alleged in his evidence[9].
35. The material in this matter leaves me with more than a reasonable doubt that Mr Whyte’s operational service was responsible for any component of his overall consumption of cigarettes. For that reason I am satisfied to that standard that he does not meet the requirement in factor 5(a) of Instrument No 30 of 2004 for emphysema.

Defence Service

36. Reliance was also placed upon Mr Whyte’s defence service as being causally related to his emphysema. For defence service, the relevant Statement of Principles is Instrument No 31 of 2004 which, in so far as relevant, reads:

5(a) smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema.

37. The same definition as set out above for pack years appears in that Instrument.
38. The year nominated by Mr Whyte as the most stressful for him in relation to his defence service was 1983 when he was promoted to Warrant Officer Aircrewman. He ceased smoking in July 1987. His evidence of an increase in 1983 was from 30 to 40 cigarettes. By July 1987, he would have accumulated the required pack years of cigarettes. However, as with operational service, the increase must be causally associated with his service. There is no evidence that, from 1983, Mr Whyte was undertaking duties outside what would normally be associated with his rank and area of responsibility. I am reasonably satisfied that this does not provide the necessary causal association with service and, accordingly, I am reasonably satisfied that his additional smoking and his emphysema are not defence-caused.

DECISION

39. The Tribunal affirms the decision under review.
    

I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: ......................[Sgd].......................................................

Kate Slack, Research Associate

Date/s of Hearing 19 October 2010

Date of Decision 5 November 2010

Counsel for the Applicant Ms Ann Frizelle

Solicitor for the Applicant Noel Payne, Martin Solicitors

Solicitor for the Respondent Jeff Kelly, departmental advocate

---

[1] Repatriation Commission v Smith (1987) 15 FLR 327 at 335
[2] Transcript p 8.
[3] Transcript p 10.
[4] Transcript pp 10, 15.
[5] Transcript p 11.
[6] Transcript p 13.
[7] Transcript p 158.
[8] [1998] FCA 391; (1998) 83 FCR 82 at 92.

[9] See the definition of “pack years” in para 26 (above).