Previous part of judgment

In essentials, the primary submission was that Claimant's disablement (his emphysema) was not 'attributable' (within s19(1)(b)) to his 'service ... overseas'. The word 'attributable' had cause/effect connotations. Caution was to be exercised in decisions upon differently worded Australian provisions (eg Repatriation Commission v. Law (1980) 31 ALR 140, 157). The word 'attributable' in s17(3) was tied to 'service with the forces in connection with any War', and in s19(1)(b) was tied to 'service ... overseas'. The concept of attributability to service is:

The submission fixes on the concepts of 'duty' and 'service'. The word 'service' carried (dictionary) meanings of the Army as a sphere of military duty; the performance of a duty of a soldier; 'a military ... operation in which a soldier ... serves'. Commencing to smoke was not attributable to performance of duties as a soldier. There was no duty to smoke. It was a voluntary decision. The plaintiff adopted the analysis by Denning J (as he then was) in Marshall v Minister of Pensions [1947] 2 All ER 706, requiring that for 'attributability', War service should be 'one of the causes', as distinct from merely being 'part of the circumstances', and the associated analysis of causation offered by the same learned Judge in a slightly different context in Minister of Pensions v Chennell [1947] 1 KB 520. On those approaches, in deciding upon cause, the question whether the 'injured party' had a choice, and exercised it responsibly, is fundamental. Here, availability of cigarettes was a mere surrounding circumstance. There was a choice. There was no obligation. The case was distinguishable from Williams v Minister of Pensions [1947] 2 All ER 564, where a soldier cleaning his rifle while on leave negligently shot himself in the foot; the cleaning of the rifle being an 'incident' of, and attributable to, War service. Smoking, by contrast, was not an 'incident' of War service. Counsel for the Plaintiffs adhered rigidly to the 'duty' requirement for attributability. A visit on leave to the red light district, despite warnings, resulting later in venereal disease, would be outside duty, and the disease not attributable, however much the Army may wish troops to relax. An inter-company football match, players entering not as a matter of strict duty but under strong pressure from seniors and peers, resulting in injury, likewise would not be 'duty', however much the Army promoted recreation. The Appeal Board's approach was castigated as defining 'attributable to service' to mean merely 'happened during the War', opening the door to untenable claims.

In essentials, the secondary submission denied the existence of 'reasonable' evidence that emphysema happened during the War and was attributable to War service (in the restricted 'duty' sense advanced as above). The (undoubtedly opaque) medical evidence was canvassed and compared unfavourably with the explicit health clearance given on discharge. Allowance of a pension would, it was submitted, put to one side possible effects of many years smoking after War time service. Four years smoking out of forty-four did not come within the 'reasonable evidence' requirement for the s17(3) attributability presumption. Even on a wider ('circumstances') definition of attributability, mere availability of cigarettes was not evidence of attributability. Smoking was a voluntary act, and could be given up. There was no evidence the Claimant could not.

I deal with the matter first on the basis of Plaintiff's submissions. I proceed subsequently to determine the matter on a basis more strictly related to the pleadings.

The question is one of statutory interpretation. Ultimately, the Court must determine the probable intention of Parliament, actual or imputed. The starting point must be entitlement under s19(1)(b). It is the empowering provision. It creates or negates entitlement to pension. Sections 17 and 18 relating to presumptions and rules are not to be ignored, but they are subsidiary. Section 19(1)(b) stipulates that the disablement must be 'attributable to his service'. It is accepted the word 'attributable' carries a causative component; although it seems clear from the concluding words of s17(3) that contributory causation will suffice.

The phrase is intrinsically uncertain in scope.

At one extreme, promoted in submissions by the Plaintiff and conveniently labelled 'duty', outcome will not be attributable to service unless it arises from discharge of duty. This approach places significant emphasis upon a 'duty' element regarded as inherent in 'service'. The approach has certain merits. It is consistent with a need for s19(1)(a), extending pension rights to disablement occurring on a purely temporal basis ('while he was on service overseas'); a provision which would not be needed if the matter were to be determined as a temporal rather than duty matter. It produces tolerably clear results. If the serviceman is carrying out military duties, he is entitled to a pension. If he voluntarily carries out military duties, such as the unfortunate soldier in Williams v Minister of Pensions supra who while cleaning his rifle onleave shot himself in the foot, such can be accommodated. It otherwise clearly excludes disablement arising from off-duty activities. On the other hand, it has some uncomfortable consequences. There are activities which properly are encouraged by the Army, but not to the point of duty. An obvious example is sporting activity, including sports inherently likely to produce injury such as football. There is an oddity in not acknowledging entitlement to disablement pensions, despite encouraging such activity which is the cause. Further, if entitlement is confined strictly to discharge of duty, the two provisos to s19(1) excluding pension rights in the case of deserters and servicemen who are AWOL, and providing for exclusion where disablement is attributable to servicemen's wilful misconduct, would seem unnecessary. Such situations clearly are outside performance of duty. They might of course be inserted on a purely ex abundante cautela basis, but that rationalisation is unconvincing.

At the other extreme, it can be said that disablement 'attributable' to service requires no more than a temporal situation of being in the military service, or, put another way, that the disablement occurred simply through the circumstance of service in itself. Again, the approach has merits. It fits well with provisos to s19(1) as to desertion and wilful misconduct, which clearly would require special exclusion. It also has the benefit of tolerably clear results. Virtually any disablement occurring while the man was in the services would be included. Perhaps only an occurrence as remarkable as an accident at home, while on leave, which would have happened even if the man had not been in the Army, would be excluded. However, this wider 'temporal' approach to s19(1)(b) does not fit easily with s19(1)(a). If such a temporal approach was considered inherent in the wording of (b), (a) would not be necessary. It also carries some uncomfortable consequences. It could be regarded as extending to conditions picked up while on leave, including those from activities of which the Army disapproved.

Neither of these extreme approaches leads to a comfortable or convincing conclusion representing a probable legislative intention. I think it necessary to search through the middle ground.

I turn first to three extrinsic features.

The original War Pensions Act 1915 s3 allowed for pensions where death or disablement 'in fact resulted' from 'employment as a member' of the Forces. Following amendment in 1917, the concept of 'attribution' first arose. Under s3(1) pensions were payable on death or disablement of a member of the Forces; and might be granted in respect of death or disablement 'attributable to his employment as a member of the Forces'. These First War provisions were replaced during the height of the Second War by s17 War Pensions Act 1943. The 1943 scheme is a clear ancestor of present provisions, but differs. I quote s17 paragraphs (a) and (b):

(The 1943 sections 14 and 15 provided for accompanying presumptions and rules in manner identical to current sections 17 and 18.) When the 1943 s17 was revised by s19 of the 1954 legislation, in the aftermath of the Korean War, paragraph (a) was cut back to disablement while on service overseas in connection with war (or emergency), shifting reference to attribution to paragraph (b); and paragraph (b) was restricted by removal of reference to service overseas 'otherwise than in connection with war'. Interestingly, the 1951 Commission which inquired into War Pensions under the 1943 Act with a view to legislation rejected a proposal by the NZ Homeservicemen's Association to expand 1943 s17(b) from 'attributable to' to wider 'attributable to or incidental to'. The Commission commented that 'the basis of entitlement for homeservicemen would be unjustifiably widened'. (Report, Commission to Inquire into and Report upon the War Pensions Act and Regulations, 11 April 1951, Appendix to Journals House of Representatives, 2nd Sess 29th Parl 1951, H-4, p15.) Disablement 'attributable' to service was regarded as different to and narrower than disablement merely 'incidental' to - 'an incident of' - service. Beyond that background, legislative history does not much help. I do not view the 1954 re-arrangement of words as much more than a tidying operation.

These are of course of interest, but are to be used with care. Different statutes, and indeed the possibility of different needs and attitudes, must be allowed for. No doubt, however, when Parliament passed the 1954 Act it was consious of the approach to 'attributability' then recently exemplified by Denning J (as he then was) in Marshall v Minister of Pensions [1947] 2 All ER 706, 708:

It also appears Parliament then was conscious of some difference between 'attributable' to service and 'directly attributable' to service. Section 19(1)(b) and 19(2) use the single word 'attributable'. By contrast, in connection with members of the mercantile marine, s62(1)(a) uses the phrase 'directly attribtable to the Second World War'; and s62(1)(b) uses (in apparently deliberately distinguished phrases) 'attributable to a disablement which occurred in the course of that employment or engagement and which is directly attributable to the Second World War' (italics added). In relation to the Emergency Reserved Corps, s65(1)(a) refers to 'directly attributable to that service', and s65(1)(b) to 'disablement which occurred in the course of that service and which is directly attributable to that service'. I need not explore all the subteties. Clearly however, 'attributable' is seen as meaning something different from 'directly attributable'. The word 'attributable' can include, to at least some extent, the indirectly attributable. The concept of 'indirect attribution' could take at least two forms. First, and I think the more obviously, it could extend to disablement which arise as a secondary effect: War conditions, causing tension, and tension in turn causing mental breakdown. Second, it possibly could extend 'service' to cover activities outside core concepts: enlistment in services led to participation in an Army football team which led to football injury. On one view it might be said such football injury was, indirectly, attributable to service. There may be other possibilities.

The present situation must be upon the words of the statute itself, approached in principle.

I restart, focusing upon s19(1)(b).

The cardinal concept promoted by Parliament is that disablement must be 'attributable to his service'. It is for that reason s19(1)(a), operative in its own terms, has a probably unnecessary s19(2) deeming provision stating such occurrence to be deemed 'attributable' to service. Section 19(1)(a), while traditional, is a departure, providing an exceptional temporal basis for disablement in the event of an occurrence while 'on service overseas ... in connection with any War'. This is a conscious extension beyond the merely 'attributable'. If a serviceman was hit by a taxi in Cairo while on leave, or contracted a disease while on leave, leading to disablement while still overseas, he was to be entitled to a pension. The extension may not have a logical basis, but it can be understood without difficulty as reflecting concerns and gratitude felt towards servicemen ('our boys') on active service abroad. Public attitudes at the time will be recalled. However, when attention is directed towards s19(1)(b) with its reference to 'attributable to his service', there is a contrast. It is not to be treated as extending to the purely temporal sense recognised in s19(1)(a). Section 19(1)(b) picked up remaining categories, most notably disablements emerging or occurring in New Zealand.

In those situations, the requirement - not merely temporal - was that disablement be 'attributable to his service'.

What is meant?

'Attributable' includes that which stems only in part from; and indirectly from.

I consider 'service' should not be approached in any narrow way, isolated from textual and social context. It should be approached in a broad and commonsense way, sympathetic towards the spirit and the benevolent purposes of the legislation. The Act was passed in 1954, at a time when society was still acutely conscious of the problems and needs of returning servicemen. With the Korean War boom, there were funds available for social purposes. The legislature meant to assist. It did not mean to be niggardly.

I consider 'attributable to his service' in s19(1)(b) was intended to include disablement stemming not only from conduct forming a matter of actual military duty under orders, but also (at least) optional activity which the Army encouraged, or at least facilitated, as a perceived useful adjunct to military service. The latter category would include activity the Army did not officially order, but which it considered desirable for servicemen in the interests of efficiency, eg education, sport, and recreation pursuits. The dividing line was not a matter of being on duty or off-duty, as such. Pursuit of activities encouraged by the Army while off-duty would qualify. However, the phrase excludes activity while simply on leave. Leave ('e has left') is the antithesis of service at the time concerned, and a line is to be drawn. There could be occasions, such as in Williams v Minister of Pensions supra, where intermittent duties are carried out during a leave period which would qualify. Apart from that, if the disablement arises from an occurrence during leave, it cannot be said to be 'attributable to his service', even though in a purely temporal or circumstantial sense the serviceman may not otherwise have been present to suffer the occurrence. There will be borderline cases. What if a ballot box, set up in a camp to facilitate voting, falls on a soldier's toe as he votes? I do not pretend to lay down finite limits, which may need to be explored on a case by case basis. However, I am satisfied that 'attributable to service' is to be given at least this additional scope.

I turn to the present case. The Appeal Board did not undertake any like analysis, but in the end applied a sufficiently consistent test. Clearly, the Appeal Board found Claimant's smoking was caused by, and thus attributable to, provision of cigarettes to the Claimant in a military climate favouring smoking. In the Appeal Board's words, the Army 'tacitly encouraged' the smoking habit, seeing it to some extent at least as a sedative if not essential treatment for emotional problems. Such supply and attitudes caused the Claimant to smoke. His disablement resulting from smoking was 'attributable to his service'. I see no self-misdirection in law.

On the interpretation of 'attributable to his service' which I prefer, clearly there was some evidence which could sustain the Appeal Board's conclusions. There was activity which although not ordered was encouraged and facilitated: smoking.

The Plaintiff, understandably, goes further; pointing to an asserted 4 years War time smoking out of a total of 44, and inquiring rhetorically how the Appeal Board could find emphysema was 'attributable to service' when problems emerged 40 years onward. I think the figures are a little stretched. His ervice overseas can be taken as 4 years, with his emphysema emerging at latest by 1977, 32 years after the War, but nothing turns on such detail. At first sight, the point is a powerful one. However, it overlooks two significant factors.

I do not consider that the conclusion reached by the Appeal Board was 'unreasonable', either in the Wednesbury sense, or in the s17(3) requirement for 'any reasonable evidence'.

I turn back to the pleadings to cover remaining matters.

Paragraphs 16 and 17 assert relevancy as to stated matters relating to Army and social attitudes to smoking. These matters were not irrelevant. They had relevance as tending to show encouragement and facilitation of smoking by the Army, bringing the disablement resulting from smoking within the requirement of 'atributable to his service'.

Paragraphs 18 and 19 alleging failure to take into account relevant considerations require more detailed analysis.

Paragraph 18(a) asserts as a relevant consideration Claimant's 'choice' to commence smoking during War time service. It is not strictly a relevant consideration that the Claimant 'chose' to do so. It is the fact of his choosing to do so in response to a facilitation and encouragement environment which is material. The choice involved was inevitably taken into account by the Appeal Board in the wider issue, but needed no special focus. There was not insufficient consideration.

Paragraph 18(b) asserts as relevant considerations that Claimant continued to smoke, after War time service, down to his death, and his emphysema was attributable to such post War smoking. It is clear that the Appeal Board was conscious of the fact of continued poast War smoking. Indeed it acknowledged at least as a possibility that the Claimant could have stopped smoking, with sufficient will power and assistance. However, it dismissed the post War smoking as 'irrelevant' (1990) NZAR 48. The Appeal Board took a view that it was a fact of life the Claimant smoked as he did, and the pension authorities were obliged to take him as they found hi. With respect, I have real doubts whether it was correct to dismiss his post War smoking as simply 'irrelevant'. The question before the Appeal Board was whether his disablement, arising from smoking, was attributable to his service. Some reasonable evidence had been produced to that effect, establishing a presumption of attribution which would prevail unless the Board went on to be satisfied the condition was not so attributable but was 'due entirely to other causes'. The Appeal Board, strictly speaking, should have gone on to consider whether the emphysema condition was due not to service, but entierly to other causews. One other such cause conceivably could be a long period of post War smoking. The Appeal Board did not do so. Technically, I must find, the Appeal Board did fail to take into account a relevant consideration. At this point, however, the discretionary element as to grant or withholding of judicial relief by this Court looms large. I have little doubt that if the Appeal Board had considered the point, applying s17(3) along with stated s18 presumptions, it would have reached a final conclusion the addiction formed in the first 4 wartime years was possibly causative, and in any event on doctors' evidence the situation warranted the benefit of factual doubt in favour of the Claimant. The whole tenor of the decision so indicates. In such circumstances, relief now by way of declaration would be a futile exercise; as indeed any direction setting aside and for rehearing would have been. The point should be noted, however, for the future. Continued smoking has relevance, and should be weighted, in case it be sole cause.

Paragraph 18(c) appears to pose, as a relevant consideration, the issue whether linkage between wartime service and emphysema (if there was such a link) was broken prior to death in 1988. I am less than certain as to the nature of the hypothetical link for which it is said the Appeal Board should have looked. It may have been no more than the Claimant's continued post War smoking, in which case observations already made apply. It may have been something extraneous, for example the possibility the Claimant stopped smoking for a period after the War, and then recommenced. The Appeal Board did not explicitly refer to such latter possibilities, but the overall thrust of the decision clearly discounts any such subsequent factors. It cannot be said relevant considerations were overlooked in that respect.

Paragraph 20 asserts misdirection in law. Paragraph 20(a) is covered by the foregoing. Paragraph 20(b) was not pursued, and rightly. Clearly, emphysema is a 'disablement'. Distinctions between 'condition' and 'disablement' are not meaningful. Malaria would be both a condition and a disablement. So is emphysema. Paragraph 20(c), with its invocation of the word 'incident', appears to refer back to Williams v Minister of Pensions supra. To do so is a little misleading for present purposes. The question to be answered is whether smoking was 'attributable to his service'. On the interpretation which I favour, the Appeal Board approached the matter appropriately.

Paragraph 20(d). It is not necessary to consider, per se, the Chairman's 'choice' to begin smoking. I refer to observations made under paragraph 18(a) above. The Appeal Board may have misdirected itself in law to the extent it did not consider, but simply dismissed as irrelevant, Claimant's choice to continue smoking. The matter has been considered, and dealt with, under paragraph 18(b) above.

After an exercise in statutory interpretation, it is wise to stand back and assess the outcome by the standards of commonsense. There is nothing surprising in 'attributing' to War service a lung condition which a serviceman picked up through beginning smoking with tacit encouragement of the Army under the pressures and tresses of War service overseas, and continued to smoke because he (like so may others) found it very difficult indeed to stop. It is easy to say, in commonsense terms, 'it all goes back to the War'. He did something then which the Army encouraged, and suffered severe later consequences. The legislation is benevolent. In its attribution provisions it is extraordinarily benevolent. It is understandable, and within probable intention, that the man (now his widow) be covered by a pension. The approach distilled does not open the door to claims in respect of activity quite independent of service conditions, or which the Army forbids. It is not right to strain the 1954 legislation in some modern gesture against smoking, applying more modern wisdom. If some moral tone is to be introduced so as to deprive elderly retired servicemen of a pension, it can always be done by legislative amendment. Members of Parliament no doubt would explain any apparent ingratitude to gatherings in RSA clubrooms in electorates on Anzac Day.

ORDER:

The application for review is dismissed.

It is a test case.

There will be no order as to costs.

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